[House Report 104-469]
[From the U.S. Government Publishing Office]
104th Congress Rept. 104-469
HOUSE OF REPRESENTATIVES
2d Session Part 1
_______________________________________________________________________
IMMIGRATION IN THE NATIONAL INTEREST ACT OF 1995
----------
R E P O R T
of the
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
on
H.R. 2202
together with
ADDITIONAL AND DISSENTING VIEWS
[Including cost estimate of the Congressional Budget Office]
March 4, 1996.--Ordered to be printed
IMMIGRATION IN THE NATIONAL INTEREST ACT OF 1995
104th Congress 2d SessioHOUSE OF REPRESENTATIVES Rept. 104-469
Part 1
_______________________________________________________________________
IMMIGRATION IN THE
NATIONAL INTEREST ACT OF 1995
__________
R E P O R T
of the
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
on
H.R. 2202
together with
ADDITIONAL AND DISSENTING VIEWS
[Including cost estimate of the Congressional Budget Office]
March 4, 1996.--Ordered to be printed
C O N T E N T S
----------
Page
The Amendment.................................................... 1
Explanation of Amendment......................................... 106
Purpose and Summary.............................................. 106
Background and Need for Legislation.............................. 110
Hearings......................................................... 182
Committee Consideration.......................................... 182
Vote of the Committee............................................ 182
Committee Oversight Findings..................................... 205
Committee on Government Reform and Oversight Findings............ 205
New Budget Authority and Tax Expenditures........................ 205
Congressional Budget Office Cost Estimate........................ 205
Inflationary Impact Statement.................................... 218
Section-by-Section Analysis and Discussion....................... 219
Agency Views..................................................... 278
Changes in Existing Law Made by the Bill, as Reported............ 282
Additional/Minority Views........................................ 512
104th Congress Rept. 104-469
HOUSE OF REPRESENTATIVES
2d Session Part 1
_______________________________________________________________________
IMMIGRATION IN THE NATIONAL INTEREST ACT OF 1995
_______________________________________________________________________
March 4, 1996.--Ordered to be printed
_______
Mr. Hyde, from the Committee on the Judiciary, submitted the following
R E P O R T
together with
ADDITIONAL AND DISSENTING VIEWS
[To accompany H.R. 2202]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the bill
(H.R. 2202) to amend the Immigration and Nationality Act to
improve deterrence of illegal immigration to the United States
by increasing border patrol and investigative personnel, by
increasing penalties for alien smuggling and for document
fraud, by reforming exclusion and deportation law and
procedures, by improving the verification system for
eligibility for employment, and through other measures, to
reform the legal immigration system and facilitate legal
entries into the United States, and for other purposes, having
considered the same, report favorably thereon with an amendment
and recommend that the bill as amended do pass.
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE; AMENDMENTS TO IMMIGRATION AND NATIONALITY ACT;
TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Immigration in the
National Interest Act of 1995''.
(b) Amendments to Immigration and Nationality Act.--Except as
otherwise specifically provided--
(1) whenever in this Act an amendment or repeal is expressed
as the amendment or repeal of a section or other provision, the
reference shall be considered to be made to that section or
provision in the Immigration and Nationality Act, and
(2) amendments to a section or other provision are to such
section or other provision as in effect on the date of the
enactment of this Act and before any amendment made to such
section or other provision elsewhere in this Act.
(c) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; amendments to Immigration and Nationality Act;
table of contents.
TITLE I--DETERRENCE OF ILLEGAL IMMIGRATION THROUGH IMPROVED BORDER
ENFORCEMENT, PILOT PROGRAMS, AND INTERIOR ENFORCEMENT
Subtitle A--Improved Enforcement at Border
Sec. 101. Border patrol agents and support personnel.
Sec. 102. Improvement of barriers at border.
Sec. 103. Improved border equipment and technology.
Sec. 104. Improvement in border crossing identification card.
Sec. 105. Civil penalties for illegal entry.
Sec. 106. Prosecution of aliens repeatedly reentering the United States
unlawfully.
Sec. 107. Inservice training for the border patrol.
Subtitle B--Pilot Programs
Sec. 111. Pilot program on interior repatriation.
Sec. 112. Pilot program on use of closed military bases for the
detention of inadmissible or deportable aliens.
Sec. 113. Pilot program to collect records of departing passengers.
Subtitle C--Interior Enforcement
Sec. 121. Increase in personnel for interior enforcement.
TITLE II--ENHANCED ENFORCEMENT AND PENALTIES AGAINST ALIEN SMUGGLING;
DOCUMENT FRAUD
Subtitle A--Enhanced Enforcement and Penalties Against Alien Smuggling
Sec. 201. Wiretap authority for alien smuggling investigations.
Sec. 202. Racketeering offenses relating to alien smuggling.
Sec. 203. Increased criminal penalties for alien smuggling.
Sec. 204. Increased number of Assistant United States Attorneys.
Sec. 205. Undercover investigation authority.
Subtitle B--Deterrence of Document Fraud
Sec. 211. Increased criminal penalties for fraudulent use of
government-issued documents.
Sec. 212. New civil penalties for document fraud.
Sec. 213. New civil penalty for failure to present documents and for
preparing immigration documents without authorization.
Sec. 214. New criminal penalties for failure to disclose role as
preparer of false application for asylum and for preparing certain
post-conviction applications.
Sec. 215. Criminal penalty for knowingly presenting document which
fails to contain reasonable basis in law or fact.
Sec. 216. Criminal penalties for false claim to citizenship.
Subtitle C--Asset Forfeiture for Passport and Visa Offenses
Sec. 221. Criminal forfeiture for passport and visa related offenses.
Sec. 222. Subpoenas for bank records.
Sec. 223. Effective date.
TITLE III--INSPECTION, APPREHENSION, DETENTION, ADJUDICATION, AND
REMOVAL OF INADMISSIBLE AND DEPORTABLE ALIENS
Subtitle A--Revision of Procedures for Removal of Aliens
Sec. 300. Overview of changes in removal procedures.
Sec. 301. Treating persons present in the United States without
authorization as not admitted.
Sec. 302. Inspection of aliens; expedited removal of inadmissible
arriving aliens; referral for hearing (revised section 235).
Sec. 303. Apprehension and detention of aliens not lawfully in the
United States (revised section 236).
Sec. 304. Removal proceedings; cancellation of removal and adjustment
of status; voluntary departure (revised and new sections 239 to 240C).
Sec. 305. Detention and removal of aliens ordered removed (new section
241).
Sec. 306. Appeals from orders of removal (new section 242).
Sec. 307. Penalties relating to removal (revised section 243).
Sec. 308. Redesignation and reorganization of other provisions;
additional conforming amendments.
Sec. 309. Effective dates; transition.
Subtitle B--Removal of Alien Terrorists
Part 1--Removal Procedures for Alien Terrorists
Sec. 321. Removal procedures for alien terrorists.
``TITLE V--SPECIAL REMOVAL PROCEDURES FOR ALIEN TERRORISTS
``Sec. 501. Definitions.
``Sec. 502. Establishment of special removal court; panel of
attorneys to assist with classified
information.
``Sec. 503. Application for initiation of special removal
proceeding.
``Sec. 504. Consideration of application.
``Sec. 505. Special removal hearings.
``Sec. 506. Consideration of classified information.
``Sec. 507. Appeals.
``Sec. 508. Detention and custody.
Sec. 322. Funding for detention and removal of alien terrorists.
Part 2--Inadmissibility and Denial of Relief for Alien Terrorists
Sec. 331. Membership in terrorist organization as ground of
inadmissibility.
Sec. 332. Denial of relief for alien terrorists.
Subtitle C--Deterring Transportation of Unlawful Aliens to the United
States
Sec. 341. Definition of stowaway.
Sec. 342. List of alien and citizen passengers arriving.
Subtitle D--Additional Provisions
Sec. 351. Definition of conviction.
Sec. 352. Immigration judges and compensation.
Sec. 353. Rescission of lawful permanent resident status.
Sec. 354. Civil penalties for failure to depart.
Sec. 355. Clarification of district court jurisdiction.
Sec. 356. Use of retired Federal employees for institutional hearing
program.
Sec. 357. Enhanced penalties for failure to depart, illegal reentry,
and passport and visa fraud.
Sec. 358. Authorization of additional funds for removal of aliens.
Sec. 359. Application of additional civil penalties to enforcement.
Sec. 360. Prisoner transfer treaties.
Sec. 361. Criminal alien identification system.
Sec. 362. Waiver of exclusion and deportation ground for certain
section 274C violators.
Sec. 363. Authorizing registration of aliens on criminal probation or
criminal parole.
Sec. 364. Confidentiality provision for certain alien battered spouses
and children.
TITLE IV--ENFORCEMENT OF RESTRICTIONS AGAINST EMPLOYMENT
Sec. 401. Strengthened enforcement of the employer sanctions
provisions.
Sec. 402. Strengthened enforcement of wage and hour laws.
Sec. 403. Changes in the employer sanctions program.
Sec. 404. Reports on earnings of aliens not authorized to work.
Sec. 405. Authorizing maintenance of certain information on aliens.
Sec. 406. Limiting liability for certain technical violations of
paperwork requirements.
Sec. 407. Unfair immigration-related employment practices.
TITLE V--REFORM OF LEGAL IMMIGRATION SYSTEM
Sec. 500. Overview of new legal immigration system.
Subtitle A--Worldwide Numerical Limits
Sec. 501. Worldwide numerical limitation on family-sponsored
immigrants.
Sec. 502. Worldwide numerical limitation on employment-based
immigrants.
Sec. 503. Worldwide numerical limitation on diversity immigrants.
Sec. 504. Establishment of numerical limitation on humanitarian
immigrants.
Sec. 505. Requiring congressional review and reauthorization of
worldwide levels every 5 years.
Subtitle B--Changes in Preference System
Sec. 511. Limitation of immediate relatives to spouses and children.
Sec. 512. Change in family-sponsored classification.
Sec. 513. Change in employment-based classification.
Sec. 514. Changes in diversity immigrant program.
Sec. 515. Authorization to require periodic confirmation of
classification petitions.
Sec. 516. Changes in special immigrant status.
Sec. 517. Requirements for removal of conditional status of
entrepreneurs.
Sec. 518. Adult disabled children.
Sec. 519. Miscellaneous conforming amendments.
Subtitle C--Refugees, Parole, and Humanitarian Admissions
Sec. 521. Changes in refugee annual admissions.
Sec. 522. Persecution for resistance to coercive population control
methods.
Sec. 523. Parole available only on a case-by-case basis for
humanitarian reasons or significant public benefit.
Sec. 524. Admission of humanitarian immigrants.
Subtitle D--Asylum Reform
Sec. 531. Asylum reform.
Sec. 532. Fixing numerical adjustments for asylees at 10,000 each year.
Sec. 533. Increased resources for reducing asylum application backlogs.
Subtitle E--General Effective Date; Transition Provisions
Sec. 551. General effective date.
Sec. 552. General transition for current classification petitions.
Sec. 553. Special transition for certain backlogged spouses and
children of lawful permanent resident aliens.
Sec. 554. Special treatment of certain disadvantaged family first
preference immigrants.
Sec. 555. Authorization of reimbursement of petitioners for eliminated
family-sponsored categories.
TITLE VI--RESTRICTIONS ON BENEFITS FOR ALIENS
Sec. 600. Statements of national policy concerning welfare and
immigration.
Subtitle A--Eligibility of Illegal Aliens for Public Benefits
Part 1--Public Benefits Generally
Sec. 601. Making illegal aliens ineligible for public assistance,
contracts, and licenses.
Sec. 602. Making unauthorized aliens ineligible for unemployment
benefits.
Sec. 603. General exceptions.
Sec. 604. Treatment of expenses subject to emergency medical services
exception.
Sec. 605. Report on disqualification of illegal aliens from housing
assistance programs.
Sec. 606. Verification of student eligibility for postsecondary Federal
student financial assistance.
Sec. 607. Payment of public assistance benefits.
Sec. 608. Definitions.
Sec. 609. Regulations and effective dates.
Part 2--Earned Income Tax Credit
Sec. 611. Earned income tax credit denied to individuals not authorized
to be employed in the United States.
Subtitle B--Expansion of Disqualification From Immigration Benefits on
the Basis of Public Charge
Sec. 621. Ground for inadmissibility.
Sec. 622. Ground for deportability.
Subtitle C--Attribution of Income and Affidavits of Support
Sec. 631. Attribution of sponsor's income and resources to family-
sponsored immigrants.
Sec. 632. Requirements for sponsor's affidavit of support.
TITLE VII--FACILITATION OF LEGAL ENTRY
Sec. 701. Additional land border inspectors; infrastructure
improvements.
Sec. 702. Commuter lane pilot programs.
Sec. 703. Preinspection at foreign airports.
Sec. 704. Training of airline personnel in detection of fraudulent
documents.
TITLE VIII--MISCELLANEOUS PROVISIONS
Subtitle A--Amendments to the Immigration and Nationality Act
Sec. 801. Nonimmigrant status for spouses and children of members of
the Armed Services.
Sec. 802. Amended definition of aggravated felony.
Sec. 803. Authority to determine visa processing procedures.
Sec. 804. Waiver authority concerning notice of denial of application
for visas.
Sec. 805. Treatment of Canadian landed immigrants.
Sec. 806. Changes relating to H-1B nonimmigrants.
Sec. 807. Validity of period of visas.
Sec. 808. Limitation on adjustment of status of individuals not
lawfully present in the United States.
Sec. 809. Limited access to certain confidential INS files.
Sec. 810. Change of nonimmigrant classification.
Subtitle B--Other Provisions
Sec. 831. Commission report on fraud associated with birth
certificates.
Sec. 832. Uniform vital statistics.
Sec. 833. Communication between State and local government agencies,
and the Immigration and Naturalization Service.
Sec. 834. Criminal alien reimbursement costs.
Sec. 835. Female genital mutilation.
Sec. 836. Designation of Portugal as a visa waiver pilot program
country with probationary status.
Subtitle C--Technical Corrections
Sec. 851. Miscellaneous technical corrections.
TITLE I--DETERRENCE OF ILLEGAL IMMIGRATION THROUGH IMPROVED BORDER
ENFORCEMENT, PILOT PROGRAMS, AND INTERIOR ENFORCEMENT
Subtitle A--Improved Enforcement at Border
SEC. 101. BORDER PATROL AGENTS AND SUPPORT PERSONNEL.
(a) Increased Number of Border Patrol Positions.--The number of
border patrol agents shall be increased, for each fiscal year beginning
with the fiscal year 1996 and ending with the fiscal year 2000, by
1,000 full-time equivalent positions above the number of equivalent
positions as of September 30, 1994.
(b) Increase in Support Personnel.--The number of full-time support
positions for personnel in support of border enforcement,
investigation, detention and deportation, intelligence, information and
records, legal proceedings, and management and administration in the
Immigration and Naturalization Service shall be increased, beginning
with fiscal year 1996, by 800 positions above the number of equivalent
positions as of September 30, 1994.
(c) Deployment of New Border Patrol Agents.--The Attorney General
shall, to the maximum extent practicable, ensure that the border patrol
agents hired pursuant to subsection (a) shall--
(1) be deployed among the various Immigration and
Naturalization Service sectors in proportion to the level of
illegal crossing of the borders of the United States measured
in each sector during the preceding fiscal year and reasonably
anticipated in the next fiscal year, and
(2) be actively engaged in law enforcement activities related
to such illegal crossings.
SEC. 102. IMPROVEMENT OF BARRIERS AT BORDER.
(a) In General.--The Attorney General, in consultation with the
Commissioner of the Immigration and Naturalization Service, shall take
such actions as may be necessary to install additional physical
barriers and roads (including the removal of obstacles to detection of
illegal entrants) in the vicinity of the United States border to deter
illegal crossings in areas of high illegal entry into the United
States.
(b) Construction of Fencing and Road Improvements in the Border Area
Near San Diego, California.--
(1) In general.--In carrying out subsection (a), the Attorney
General shall provide for the construction along the 14 miles
of the international land border of the United States, starting
at the Pacific Ocean and extending eastward, of second and
third fences, in addition to the existing reinforced fence, and
for roads between the fences.
(2) Prompt acquisition of necessary easements.--The Attorney
General shall promptly acquire such easements as may be
necessary to carry out this subsection and shall commence
construction of fences immediately following such acquisition
(or conclusion of portions thereof).
(3) Authorization of appropriations.--There are authorized to
be appropriated to carry out this subsection not to exceed
$12,000,000. Amounts appropriated under this paragraph are
authorized to remain available until expended.
(c) Waiver.--The provisions of the Endangered Species Act of 1973 are
waived to the extent the Attorney General determines necessary to
assure expeditious construction of the barriers and roads under this
section.
(d) Forward Deployment.--
(1) In general.--The Attorney General shall forward deploy
existing border patrol agents in those areas of the border
identified as areas of high illegal entry into the United
States in order to provide a uniform and visible deterrent to
illegal entry on a continuing basis.
(2) Report.--By not later than 6 months after the date of the
enactment of this Act, the Attorney General shall submit to the
appropriate committees of Congress a report on the progress and
effectiveness of such forward deployments.
SEC. 103. IMPROVED BORDER EQUIPMENT AND TECHNOLOGY.
The Attorney General is authorized to acquire and utilize, for the
purpose of detection, interdiction, and reduction of illegal
immigration into the United States, any Federal equipment (including
fixed wing aircraft, helicopters, four-wheel drive vehicles, sedans,
night vision goggles, night vision scopes, and sensor units) determined
available for transfer by any other agency of the Federal Government
upon request of the Attorney General.
SEC. 104. IMPROVEMENT IN BORDER CROSSING IDENTIFICATION CARD.
(a) In General.--Section 101(a)(6) (8 U.S.C. 1101(a)(6)) is amended
by adding at the end the following: ``Such regulations shall provide
that (A) each such document include a biometric identifier (such as the
fingerprint or handprint of the alien) that is machine readable and (B)
an alien presenting a border crossing identification card is not
permitted to cross over the border into the United States unless the
biometric identifier contained on the card matches the appropriate
biometric characteristic of the alien.''.
(b) Effective Dates.--
(1) Clause (A) of the sentence added by the amendment made by
subsection (a) shall apply to documents issued on or after 6
months after the date of the enactment of this Act.
(2) Clause (B) of such sentence shall apply to cards
presented on or after 3 years after the date of the enactment
of this Act.
(c) Report.--Not later than one year after the implementation of
clause (A) of the sentence added by the amendment made by subsection
(a) the Attorney General shall submit to Congress a report on the
impact of such clause on border crossing activities.
SEC. 105. CIVIL PENALTIES FOR ILLEGAL ENTRY.
(a) In General.--Section 275 (8 U.S.C. 1325) is amended--
(1) by redesignating subsections (b) and (c) as subsections
(c) and (d), respectively, and
(2) by inserting after subsection (a) the following new
subsection:
``(b) Any alien who is apprehended while entering (or attempting to
enter) the United States at a time or place other than as designated by
immigration officers shall be subject to a civil penalty of--
``(1) at least $50 and not more than $250 for each such entry
(or attempted entry), or
``(2) twice the amount specified in paragraph (1) in the case
of an alien who has been previously subject to a civil penalty
under this subsection.
Civil penalties under this subsection are in addition to, and not in
lieu of, any criminal or other civil penalties that may be imposed.''.
(b) Effective Date.--The amendments made by subsection (a) shall
apply to illegal entries or attempts to enter occurring on or after the
first day of the sixth month beginning after the date of the enactment
of this Act.
SEC. 106. PROSECUTION OF ALIENS REPEATEDLY REENTERING THE UNITED STATES
UNLAWFULLY.
(a) Authorization of Appropriations.--There are authorized to be
appropriated to the Attorney General such sums as may be necessary to
provide for detention and prosecution of each alien who commits an act
that constitutes a violation of section 275(a) of the Immigration and
Nationality Act if the alien has committed such an act on two previous
occasions. Funds appropriated pursuant to this subsection are
authorized to remain available until expended.
(b) Sense of Congress.--It is the sense of Congress that the Attorney
General should use available resources to assure detention and
prosecution of aliens in the cases described in subsection (a).
SEC. 107. INSERVICE TRAINING FOR THE BORDER PATROL.
(a) Requirement.--Section 103 (8 U.S.C. 1103) is amended by adding at
the end the following new subsection:
``(e)(1) The Attorney General shall continue to provide for such
programs (including intensive language training programs) of inservice
training for full-time and part-time personnel of the Border Patrol in
contact with the public as will familiarize the personnel with the
rights and varied cultural backgrounds of aliens and citizens in order
to ensure and safeguard the constitutional and civil rights, personal
safety, and human dignity of all individuals, aliens as well as
citizens, within the jurisdiction of the United States with whom such
personnel have contact in their work.
``(2) The Attorney General shall provide that the annual report of
the Service include a description of steps taken to carry out paragraph
(1).''.
(b) Authorization of Appropriations.--There are authorized to be
appropriated to the Attorney General such sums as may be necessary for
fiscal year 1996 to carry out the inservice training described in
section 103(e)(1) of the Immigration and Nationality Act. The funds
appropriated pursuant to this subsection are authorized to remain
available until expended.
Subtitle B--Pilot Programs
SEC. 111. PILOT PROGRAM ON INTERIOR REPATRIATION.
(a) Establishment.--Not later than 120 days after the date of the
enactment of this Act, the Attorney General, after consultation with
the Secretary of State, shall establish a pilot program for up to 2
years which provides for methods to deter multiple illegal entries by
aliens into the United States. The pilot program may include the
development and use of interior repatriation, third country
repatriation, and other disincentives for multiple illegal entries into
the United States.
(b) Report.--Not later than 30 months after the date of the enactment
of this Act, the Attorney General, together with the Secretary of
State, shall submit a report to the Committees on the Judiciary of the
House of Representatives and of the Senate on the operation of the
pilot program under this section and whether the pilot program or any
part thereof should be extended or made permanent.
SEC. 112. PILOT PROGRAM ON USE OF CLOSED MILITARY BASES FOR THE
DETENTION OF INADMISSIBLE OR DEPORTABLE ALIENS.
(a) Establishment.--The Attorney General and the Secretary of Defense
shall establish one or more pilot programs for up to 2 years each to
determine the feasibility of the use of military bases available
because of actions under a base closure law as detention centers by the
Immigration and Naturalization Service.
(b) Report.--Not later than 30 months after the date of the enactment
of this Act, the Attorney General, together with the Secretary of
State, shall submit a report to the Committees on the Judiciary of the
House of Representatives and of the Senate, and the Committees on Armed
Services of the House of Representatives and of the Senate, on the
feasibility of using military bases closed under a base closure law as
detention centers by the Immigration and Naturalization Service.
(c) Definition.--For purposes of this section, the term ``base
closure law'' means each of the following:
(1) The Defense Base Closure and Realignment Act of 1990
(part A of title XXIX of Public Law 101-510; 10 U.S.C. 2687
note).
(2) Title II of the Defense Authorization Amendments and Base
Closure and Realignment Act (Public Law 100-526; 10 U.S.C. 2687
note).
(3) Section 2687 of title 10, United States Code.
(4) Any other similar law enacted after the date of the
enactment of this Act.
SEC. 113. PILOT PROGRAM TO COLLECT RECORDS OF DEPARTING PASSENGERS.
(a) Establishment.--The Commissioner of the Immigration and
Naturalization Service shall, within 180 days after the date of the
enactment of this Act, establish a pilot program in which officers of
the Service collect a record of departure for every alien departing the
United States and match the records of departure with the record of the
alien's arrival in the United States. The program shall be operated in
as many air ports of entry as is deemed appropriate, but at no less
than 3 of the 5 air ports of entry with the heaviest volume of incoming
traffic from foreign territories.
(b) Report.--
(1) Deadline.--The Commissioner shall submit a report to
Congress not later than 2 years after the date the pilot
program is implemented under subsection (a).
(2) Information.--The report shall include the following
information for each participating port of entry:
(A) The number of departure records collected, with
an accounting by country of nationality of the
departing alien.
(B) The number of departure records that were
successfully matched to records of the alien's prior
arrival in the United States, with an accounting by the
alien's country of nationality and by the alien's
classification as an immigrant or nonimmigrant.
(C) The number of aliens who arrived at the port of
entry as nonimmigrants, or as a visitor under the visa
waiver program under section 217 of the Immigration and
Nationality Act, for whom no matching departure record
has been obtained through the pilot program or through
other means, with an accounting by the alien's country
of nationality and date of arrival in the United
States.
(D) The estimated cost of establishing a national
system to verify the departure from the United States
of aliens admitted temporarily as nonimmigrants.
(3) Recommendations.--The report also shall include specific
recommendations for implementation of the pilot program on a
permanent basis.
(c) Use of Information on Visa Overstays.--Information on instances
of visa overstay identified through the pilot program shall be
integrated into appropriate data bases of the Immigration and
Naturalization Service and the Department of State, including those
used at ports of entry and at consular offices.
Subtitle C--Interior Enforcement
SEC. 121. INCREASE IN PERSONNEL FOR INTERIOR ENFORCEMENT.
Subject to the availability of appropriations, the Attorney General
shall provide for an increase in the number of investigators and
enforcement personnel of the Immigration and Naturalization Service who
are deployed in the interior so that the number of such personnel is
adequate properly to investigate violations of, and to enforce,
immigration laws.
TITLE II--ENHANCED ENFORCEMENT AND PENALTIES AGAINST ALIEN SMUGGLING;
DOCUMENT FRAUD
Subtitle A--Enhanced Enforcement and Penalties Against Alien Smuggling
SEC. 201. WIRETAP AUTHORITY FOR ALIEN SMUGGLING INVESTIGATIONS.
Section 2516(1) of title 18, United States Code, is amended--
(1) by striking ``and'' at the end of paragraph (n),
(2) by redesignating paragraph (o) as paragraph (p), and
(3) by inserting after paragraph (n) the following new
paragraph:
``(o)(1) a felony violation of section 1028 (relating to
production of false identification documentation), section 1541
(relating to passport issuance without authority), section 1542
(relating to false statements in passport applications),
section 1543 (relating to forgery or false use of passport),
section 1544 (relating to misuse of passport), section 1546
(relating to fraud or misuse of visas, permits, or other
documents) of this title; or
``(2) a violation of section 274, 277, or 278 of the
Immigration and Nationality Act (relating to the smuggling of
aliens); or''.
SEC. 202. RACKETEERING OFFENSES RELATING TO ALIEN SMUGGLING.
Section 1961(1) of title 18, United States Code, is amended--
(1) by inserting ``section 1028 (relating to fraud and
related activity in connection with identification
documents),'' before ``section 1029'';
(2) by inserting ``section 1542 (relating to false statement
in application and use of passport), section 1543 (relating to
forgery or false use of passport), section 1544 (relating to
misuse of passport), section 1546 (relating to fraud and misuse
of visas, permits, and other documents), sections 1581-1588
(relating to peonage and slavery),'' after ``section 1513
(relating to retaliating against a witness, victim, or an
informant),'';
(3) by striking ``or'' before ``(E)''; and
(4) by inserting before the period at the end the following:
``, or (F) any act which is indictable under the Immigration
and Nationality Act, section 274 (relating to bringing in and
harboring certain aliens), section 277 (relating to aiding or
assisting certain aliens to enter the United States), or
section 278 (relating to importation of alien for immoral
purpose)''.
SEC. 203. INCREASED CRIMINAL PENALTIES FOR ALIEN SMUGGLING.
(a) In General.--Section 274(a)(1) (8 U.S.C. 1324(a)(1)) is amended--
(1) in subparagraph (B)(i), by inserting ``or in the case of
a violation of subparagraph (A)(ii), (iii), or (iv) in which
the offense was done for the purpose of commercial advantage or
private financial gain'' after ``subparagraph (A)(i)'', and
(2) by adding at the end the following new subparagraph:
``(C) Any person who engages in any conspiracy to commit, or aids or
abets the commission of, any of the acts described in--
``(i) subparagraph (A)(i) shall be fined under title 18,
United States Code, imprisoned not more than 10 years, or both;
or
``(ii) clause (ii), (iii), or (iv) of subparagraph (A) shall
be fined under title 18, United States Code, imprisoned not
more than 5 years, or both.''.
(b) Smuggling of Aliens Who Will Commit Crimes.--Section 274(a)(2) (8
U.S.C. 1324(a)(2)) is amended--
(1) in subparagraph (B)--
(A) by striking ``or'' at the end of clause (ii),
(B) by adding ``or'' at the end of clause (iii), and
(C) by inserting after clause (iii) the following:
``(iv) an offense committed with the intent
or with reason to believe that the alien
unlawfully brought into the United States will
commit an offense against the United States or
any State punishable by imprisonment for more
than 1 year,''; and
(2) by striking ``be fined'' and all that follows through the
final period at the end and inserting the following: ``be fined
under title 18, United States Code, and shall be imprisoned not
less than 3 years or more than 10 years.''.
(c) Applying Certain Penalties on a Per Alien Basis.--Section
274(a)(2) (8 U.S.C. 1324(a)(2)) is amended by striking ``for each
transaction constituting a violation of this paragraph, regardless of
the number of aliens involved'' and inserting ``for each alien in
respect to whom a violation of this paragraph occurs''.
SEC. 204. INCREASED NUMBER OF ASSISTANT UNITED STATES ATTORNEYS.
(a) In General.--The number of Assistant United States Attorneys
employed by the Department of Justice for the fiscal year 1996 shall be
increased by 25 above the number of Assistant United States Attorneys
that were authorized to be employed as of September 30, 1994.
(b) Assignment.--Individuals employed to fill the additional
positions described in subsection (a) shall be specially trained to be
used for the prosecution of persons who bring into the United States or
harbor illegal aliens, fraud, and other criminal statutes involving
illegal aliens.
SEC. 205. UNDERCOVER INVESTIGATION AUTHORITY.
(a) In General.--Title II is amended by adding at the end the
following new section:
``undercover investigation authority
``Sec. 294. (a) In General.--With respect to any undercover
investigative operation of the Service which is necessary for the
detection and prosecution of crimes against the United States--
``(1) sums appropriated for the Service may be used for
leasing space within the United States and the territories and
possessions of the United States without regard to the
following provisions of law:
``(A) section 3679(a) of the Revised Statutes (31
U.S.C. 1341),
``(B) section 3732(a) of the Revised Statutes (41
U.S.C. 11(a)),
``(C) section 305 of the Act of June 30, 1949 (63
Stat. 396; 41 U.S.C. 255),
``(D) the third undesignated paragraph under the
heading `Miscellaneous' of the Act of March 3, 1877 (19
Stat. 370; 40 U.S.C. 34),
``(E) section 3648 of the Revised Statutes (31 U.S.C.
3324),
``(F) section 3741 of the Revised Statutes (41 U.S.C.
22), and
``(G) subsections (a) and (c) of section 304 of the
Federal Property and Administrative Services Act of
1949 (63 Stat. 395; 41 U.S.C. 254 (a) and (c));
``(2) sums appropriated for the Service may be used to
establish or to acquire proprietary corporations or business
entities as part of an undercover operation, and to operate
such corporations or business entities on a commercial basis,
without regard to the provisions of section 304 of the
Government Corporation Control Act (31 U.S.C. 9102);
``(3) sums appropriated for the Service, and the proceeds
from the undercover operation, may be deposited in banks or
other financial institutions without regard to the provisions
of section 648 of title 18, United States Code, and of section
3639 of the Revised Statutes (31 U.S.C. 3302); and
``(4) the proceeds from the undercover operation may be used
to offset necessary and reasonable expenses incurred in such
operation without regard to the provisions of section 3617 of
the Revised Statutes (31 U.S.C. 3302).
The authority set forth in this subsection may be exercised only upon
written certification of the Commissioner, in consultation with the
Deputy Attorney General, that any action authorized by paragraph (1),
(2), (3), or (4) is necessary for the conduct of the undercover
operation.
``(b) Disposition of Proceeds No Longer Required.--As soon as
practicable after the proceeds from an undercover investigative
operation, carried out under paragraphs (3) and (4) of subsection (a),
are no longer necessary for the conduct of the operation, the proceeds
or the balance of the proceeds remaining at the time shall be deposited
into the Treasury of the United States as miscellaneous receipts.
``(c) Disposition of Certain Corporations and Business Entities.--If
a corporation or business entity established or acquired as part of an
undercover operation under paragraph (2) of subsection (a) with a net
value of over $50,000 is to be liquidated, sold, or otherwise disposed
of, the Service, as much in advance as the Commissioner or
Commissioner's designee determines practicable, shall report the
circumstances to the Attorney General, the Director of the Office of
Management and Budget, and the Comptroller General. The proceeds of the
liquidation, sale, or other disposition, after obligations are met,
shall be deposited in the Treasury of the United States as
miscellaneous receipts.
``(d) Financial Audits.--The Service shall conduct detailed financial
audits of closed undercover operations on a quarterly basis and shall
report the results of the audits in writing to the Deputy Attorney
General.''.
(b) Clerical Amendment.--The table of contents is amended by
inserting after the item relating to section 293 the following:
``Sec. 294. Undercover investigation authority.''.
Subtitle B--Deterrence of Document Fraud
SEC. 211. INCREASED CRIMINAL PENALTIES FOR FRAUDULENT USE OF
GOVERNMENT-ISSUED DOCUMENTS.
(a) Fraud and Misuse of Government-Issued Identification Documents.--
Section 1028(b) of title 18, United States Code, is amended--
(1) in paragraph (1), by inserting ``except as provided in
paragraphs (3) and (4),'' after ``(1)'' and by striking ``five
years'' and inserting ``15 years'';
(2) in paragraph (2), by inserting ``except as provided in
paragraphs (3) and (4),'' after ``(2)'' and by striking ``and''
at the end;
(3) by redesignating paragraph (3) as paragraph (5); and
(4) by inserting after paragraph (2) the following new
paragraphs:
``(3) a fine under this title or imprisonment for not more
than 20 years, or both, if the offense is committed to
facilitate a drug trafficking crime (as defined in section
929(a)(2) of this title);
``(4) a fine under this title or imprisonment for not more
than 25 years, or both, if the offense is committed to
facilitate an act of international terrorism (as defined in
section 2331(1) of this title); and''.
(b) Changes to the Sentencing Levels.--Pursuant to section 944 of
title 28, United States Code, and section 21 of the Sentencing Act of
1987, the United States Sentencing Commission shall promulgate
guidelines, or amend existing guidelines, relating to defendants
convicted of violating, or conspiring to violate, sections 1546(a) and
1028(a) of title 18, United States Code. The basic offense level under
section 2L2.1 of the United States Sentencing Guidelines shall be
increased to--
(1) not less than offense level 15 if the offense involves
100 or more documents;
(2) not less than offense level 20 if the offense involves
1,000 or more documents, or if the documents were used to
facilitate any other criminal activity described in section
212(a)(2)(A)(i)(II) of the Immigration and Nationality Act (8
U.S.C. 1182(a)(A)(i)(II)) or in section 101(a)(43) of such Act;
and
(3) not less than offense level 25 if the offense involves--
(A) the provision of documents to a person known or
suspected of engaging in a terrorist activity (as such
terms are defined in section 212(a)(3)(B) of the
Immigration and Nationality Act (8 U.S.C.
1182(a)(3)(B));
(B) the provision of documents to facilitate a
terrorist activity or to assist a person to engage in
terrorist activity (as such terms are defined in
section 212(a)(3)(B) of the Immigration and Nationality
Act (8 U.S.C. 1182(a)(3)(B)); or
(C) the provision of documents to persons involved in
racketeering enterprises (described in section 1952(a)
of title 18, United States Code).
SEC. 212. NEW CIVIL PENALTIES FOR DOCUMENT FRAUD.
(a) Activities Prohibited.--Section 274C(a) (8 U.S.C. 1324c(a)) is
amended--
(1) by striking ``or'' at the end of paragraph (3);
(2) by striking the period at the end of paragraph (4) and
inserting ``, or''; and
(3) by adding at the end the following:
``(5) in reckless disregard of the fact that the information
is false or does not relate to the applicant, to prepare, to
file, or to assist another in preparing or filing, documents
which are falsely made for the purpose of satisfying a
requirement of this Act.
For purposes of this section, the term `falsely made' includes, with
respect to a document or application, the preparation or provision of
the document or application with knowledge or in reckless disregard of
the fact that such document contains a false, fictitious, or fraudulent
statement or material representation, or has no basis in law or fact,
or otherwise fails to state a material fact pertaining to the document
or application.''.
(b) Conforming Amendments for Civil Penalties.--Section 274C(d)(3) (8
U.S.C. 1324c(d)(3)) is amended by striking ``each document used,
accepted, or created and each instance of use, acceptance, or
creation'' both places it appears and inserting ``each instance of a
violation under subsection (a)''.
(c) Effective Dates.--(1) The amendments made by subsection (a) shall
apply to the preparation or filing of documents, and assistance in such
preparation or filing, occurring on or after the date of the enactment
of this Act.
(2) The amendment made by subsection (b) shall apply to violations
occurring on or after the date of the enactment of this Act.
SEC. 213. NEW CIVIL PENALTY FOR FAILURE TO PRESENT DOCUMENTS AND FOR
PREPARING IMMIGRATION DOCUMENTS WITHOUT
AUTHORIZATION.
(a) In General.--Section 274C(a) (8 U.S.C. 1324c(a)), as amended by
section 212(a), is further amended--
(1) by striking ``or'' at the end of paragraph (4);
(2) by striking the period at the end of paragraph (5) and
inserting a comma; and
(3) by inserting after paragraph (5) the following new
paragraphs:
``(6) to present before boarding a common carrier for the
purpose of coming to the United States a document which relates
to the alien's eligibility to enter the United States and to
fail to present such document to an immigration officer upon
arrival at a United States port of entry, or
``(7) to prepare or assist in the preparation and submission
of immigration forms, petitions, and applications if the person
or entity is not authorized to represent aliens, or to prepare
or assist in the preparation and submission of such forms,
petitions, and applications pursuant to regulations promulgated
by the Attorney General.''; and
(4) by adding at the end the following:
``The Attorney General may, in the discretion of the Attorney General,
waive the penalties of this section with respect to an alien who
knowingly violates paragraph (6) if the alien is granted asylum under
section 208 or withholding of deportation under section 243(h).''.
(b) Effective Date.--The amendments made by subsection (a) shall
apply to individuals who board a common carrier on or after 30 days
after the date of the enactment of this Act.
SEC. 214. NEW CRIMINAL PENALTIES FOR FAILURE TO DISCLOSE ROLE AS
PREPARER OF FALSE APPLICATION FOR ASYLUM AND FOR
PREPARING CERTAIN POST-CONVICTION APPLICATIONS.
Section 274C (8 U.S.C. 1324c) is amended by adding at the end the
following new subsection:
``(e) Criminal Penalties for Failure To Disclose Role as Document
Preparer.--
``(1) If a person is required by law or regulation to
disclose the fact that the person, on behalf of another person
and for a fee or other remuneration, has prepared or assisted
in preparing an application for asylum pursuant to section 208,
or the regulations promulgated thereunder, and the person
knowingly and willfully fails to disclose, conceals, or covers
up such fact, and the application was falsely made, the person
shall--
``(A) be imprisoned for not less than 2 nor more than
5 years, fined in accordance with title 18, United
States Code, or both, and
``(B) be prohibited from preparing or assisting in
preparing, regardless of whether for a fee or other
remuneration, any other such application for a period
of at least 5 years and not more than 15 years.
``(2) Whoever, having been convicted of a violation of
paragraph (1), knowingly and willfully prepares or assists in
preparing an application for asylum pursuant to section 208, or
the regulations promulgated thereunder, regardless of whether
for a fee or other remuneration, in violation of paragraph
(1)(B) shall be imprisoned for not less than 5 years or more
than 15 years, fined in accordance with title 18, United States
Code, or both, and prohibited from preparing or assisting in
preparing any other such application.''.
SEC. 215. CRIMINAL PENALTY FOR KNOWINGLY PRESENTING DOCUMENT WHICH
FAILS TO CONTAIN REASONABLE BASIS IN LAW OR FACT.
The fourth paragraph of section 1546(a) of title 18, United States
Code, is amended by striking ``containing any such false statement''
and inserting ``which contains any such false statement or which fails
to contain any reasonable basis in law or fact''.
SEC. 216. CRIMINAL PENALTIES FOR FALSE CLAIM TO CITIZENSHIP.
Section 1015 of title 18, United States Code, is amended--
(1) by striking the dash at the end of paragraph (d) and
inserting ``; or'', and
(2) by inserting after paragraph (d) the following:
``(e) Whoever knowingly makes any false statement or claim that he
is, or at any time has been, a citizen or national of the United
States, with the intent to obtain on behalf of himself, or any other
person, any Federal benefit or service, or to engage unlawfully in
employment in the United States; or
``(f) Whoever knowingly makes any false statement or claim that he is
a citizen of the United States in order to register to vote or to vote
in any Federal, State, or local election (including an initiative,
recall, or referendum)--''.
Subtitle C--Asset Forfeiture for Passport and Visa Offenses
SEC. 221. CRIMINAL FORFEITURE FOR PASSPORT AND VISA RELATED OFFENSES.
Section 982 of title 18, United States Code, is amended--
(1) in subsection (a), by inserting after paragraph (5) the
following new paragraph:
``(6) The court, in imposing sentence on a person convicted of a
violation of, or conspiracy to violate, section 1541, 1542, 1543, 1544,
or 1546 of this title, or a violation of, or conspiracy to violate,
section 1028 of this title if committed in connection with passport or
visa issuance or use, shall order that the person forfeit to the United
States any property, real or personal, which the person used, or
intended to be used, in committing, or facilitating the commission of,
the violation, and any property constituting, or derived from, or
traceable to, any proceeds the person obtained, directly or indirectly,
as a result of such violation.'', and
(2) in subsection (b)(1)(B), by inserting ``or (a)(6)'' after
``(a)(2)''.
SEC. 222. SUBPOENAS FOR BANK RECORDS.
Section 986(a) of title 18, United States Code, is amended by
inserting ``1028, 1541, 1542, 1543, 1544, 1546,'' before ``1956''.
SEC. 223. EFFECTIVE DATE.
The amendments made by this subtitle shall take effect on the first
day of the first month that begins more than 90 days after the date of
the enactment of this Act.
TITLE III--INSPECTION, APPREHENSION, DETENTION, ADJUDICATION, AND
REMOVAL OF INADMISSIBLE AND DEPORTABLE ALIENS
Subtitle A--Revision of Procedures for Removal of Aliens
SEC. 300. OVERVIEW OF CHANGES IN REMOVAL PROCEDURES.
This subtitle amends the provisions of the Immigration and
Nationality Act relating to procedures for inspection, exclusion, and
deportation of aliens so as to provide for the following:
(1) Expedited removal for undocumented aliens.--Aliens
arriving without valid documents are subject to an expedited
removal process, without an evidentiary hearing and subject to
strictly limited judicial review.
(2) No reward for illegal entrants or visa overstayers.--
Aliens who enter illegally or who overstay the period of
authorized admission will have a greater burden of proof in
removal proceedings and will face tougher standards for most
discretionary immigration benefits, such as suspension of
removal and work authorization.
(3) Stricter standards to assure detention of aliens.--There
are more stringent standards for the release of aliens
(particularly aliens convicted of aggravated felonies) during
and after removal proceedings.
(4) Simplified, single removal proceeding (in place of
separate exclusion and deportation proceedings).--The
procedures for exclusion and deportation are consolidated into
a simpler, single procedure for removal of inadmissible and
deportable aliens.
(5) Streamlined judicial review.--Judicial review is
streamlined through removing a layer of review in exclusion
cases, shortening the time period to file for review, and
permitting the removal of inadmissible aliens pending the
review.
(6) Increased penalties to assure removal and prevent further
reentry.--Aliens who are ordered removed are subject to civil
money penalties for failure to depart on time and if they seek
reentry they are subject to immediate removal under the prior
order.
(7) Protection of applicants for asylum.--Throughout the
process, the procedures protect those aliens who present
credible claims for asylum by giving them an opportunity for a
full hearing on their claims.
(8) Reorganization.--The provisions of the Act are
reorganized to provide a more logical progression from arrival
and inspection through proceedings and removal.
SEC. 301. TREATING PERSONS PRESENT IN THE UNITED STATES WITHOUT
AUTHORIZATION AS NOT ADMITTED.
(a) ``Admission'' Defined.--Paragraph (13) of section 101(a) (8
U.S.C. 1101(a)) is amended to read as follows:
``(13)(A) The terms `admission' and `admitted' mean, with respect to
an alien, the entry of the alien into the United States after
inspection and authorization by an immigration officer.
``(B) An alien who is paroled under section 212(d)(5) or permitted to
land temporarily as an alien crewman shall not be considered to have
been admitted.
``(C) An alien lawfully admitted for permanent residence in the
United States shall not be regarded as seeking an admission into the
United States for purposes of the immigration laws unless the alien--
``(i) has abandoned or relinquished that status,
``(ii) has engaged in illegal activity after having departed
the United States,
``(iii) has departed from the United States while under legal
process seeking removal of the alien from the United States,
including removal proceedings under this Act and extradition
proceedings,
``(iv) has been convicted of an aggravated felony, unless
since such conviction the alien has been granted relief under
section 240A(a), or
``(v) is attempting to enter at a time or place other than as
designated by immigration officers or has not been admitted to
the United States after inspection and authorization by an
immigration officer.''.
(b) Inadmissibility of Aliens Present Without Admission or Parole.--
(1) In general.--Section 212(a) (8 U.S.C. 1182(a)) is amended
by redesignating paragraph (9) as paragraph (10) and by
inserting after paragraph (8) the following new paragraph:
``(9) Present without admission or parole.--
``(A) In general.--An alien present in the United
States without being admitted or paroled, or who
arrives in the United States at any time or place other
than as designated by the Attorney General, is
inadmissible.
``(B) Exception for certain battered women and
children.--Subparagraph (A) shall not apply to an alien
who can demonstrate that--
``(i) the alien qualifies for immigrant
status under subparagraphs (A)(iii), (A)(iv),
(B)(ii), or (B)(iii) of section 204(a)(1),
``(ii)(I) the alien has been battered or
subject to extreme cruelty by a spouse or
parent, or by a member of the spouse's or
parent's family residing in the same household
as the alien and the spouse or parent consented
or acquiesced to such battery or cruelty, or
(II) the alien's child has been battered or
subject to extreme cruelty by a spouse or
parent of the alien (without the active
participation of the alien in the battery or
extreme cruelty) or by a member of the spouse's
or parent's family residing in the same
household as the alien when the spouse or
parent consented to or acquiesced in such
battery or cruelty and the alien did not
actively participate in such battery or
cruelty, and
``(iii) there was a substantial connection
between the battery or cruelty described in
subclause (I) or (II) and the alien's unlawful
entry into the United States.''.
(2) Transition for battered spouse or child provision.--The
requirements of clauses (ii) and (iii) of section 212(a)(9)(B)
of the Immigration and Nationality Act, as inserted by
paragraph (1), shall not apply to an alien who demonstrates
that the alien first arrived in the United States before the
title III-A effective date (described in section 309(a)).
(c) Revision to Ground of Inadmissibility for Illegal Entrants and
Immigration Violators.--Subparagraphs (A) and (B) of section 212(a)(6)
(8 U.S.C. 1182(a)(6)) are amended to read as follows:
``(A) Aliens previously removed.--
``(i) Arriving aliens.--Any alien who has
been ordered removed under section 235(b)(1) or
at the end of proceedings under section 240
initiated upon the alien's arrival in the
United States and who again seeks admission
within 5 years of the date of such removal is
inadmissible.
``(ii) Other aliens.--Any alien not described
in clause (i) who has been ordered removed
under section 240 or any other provision of law
and who again seeks admission within 10 years
of the date of such removal (or at any time in
the case of an alien convicted of an aggravated
felony) is inadmissible.
``(iii) Exception.--Clauses (i) and (ii)
shall not apply to an alien seeking admission
within a period if, prior to the alien's
reembarkation at a place outside the United
States or attempt to be admitted from foreign
contiguous territory, the Attorney General has
consented to the alien's reapplying for
admission.
``(B) Aliens present unlawfully for more than 1
year.--
``(i) In general.--Any alien who was
unlawfully present in the United States for an
aggregate period totaling 1 year is
inadmissible unless the alien has remained
outside the United States for a period of 10
years.
``(ii) Exceptions.--
``(I) Minors.--No period of time in
which an alien is under 18 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 208 shall be taken into account
in determining the period of unlawful
presence in the United States under
clause (i).
``(III) Aliens with work
authorization.--No period of time in
which an alien is provided
authorization to engage in employment
in the United States (including such an
authorization under section
244A(a)(1)(B)), or in which the alien
is the spouse of such an alien, shall
be taken into account in determining
the period of unlawful presence in the
United States under clause (i).
``(IV) Family unity.--No period of
time in which the alien is a
beneficiary of family unity protection
pursuant to section 301 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).
``(V) Battered women and children.--
Clause (i) shall not apply to an alien
described in paragraph (9)(B).
``(iii) Extension.--The Attorney General may
extend the period of 1 year under clause (i) to
a period of 15 months in the case of an alien
who applies to the Attorney General (before the
alien has been present unlawfully in the United
States for a period totaling 1 year) and
establishes to the satisfaction of the Attorney
General that--
``(I) the alien is not inadmissible
under clause (i) at the time of the
application, and
``(II) the failure to extend such
period would constitute an extreme
hardship for the alien.
``(iv) Waiver.--In the case of an alien who
is the spouse, parent, or child of a United
States citizen or the spouse or child of a
permanent resident alien, the Attorney General
may waive clause (i) for humanitarian purposes,
to assure family unity, or when it is otherwise
in the public interest.
``(v) National interest waiver.--The Attorney
General may waive clause (i) if the Attorney
General determines that such a waiver is
necessary to substantially benefit--
``(I) the national security, national
defense, or Federal, State, or local
law enforcement;
``(II) health care, housing, or
educational opportunities for an
indigent or low-income population or in
an underserved geographical area;
``(III) economic or employment
opportunities for a specific industry
or specific geographical area;
``(IV) the development of new
technologies; or
``(V) environmental protection or the
productive use of natural resources;
and
the alien will engage in a specific undertaking
to advance one or more of the interests
identified in subclauses (I) through (V).''.
(d) Waiver of Misrepresentation Ground of Inadmissibility for Certain
Aliens.--Subsection (i) of section 212 is amended to read as follows:
``(i) The Attorney General may, in the discretion of the Attorney
General, waive the application of clause (i) of subsection (a)(6)(C)--
``(1) in the case of an immigrant who is the spouse, son, or
daughter of a United States citizen; or
``(2) in the case of an immigrant who is the spouse or son or
daughter of an alien lawfully admitted for permanent residence,
if it is established to the satisfaction of the Attorney
General that the refusal of admission to the United States of
such immigrant alien would result in extreme hardship to the
lawfully resident spouse or parent of such an alien.''.
(e) Prohibition on Issuance of Visas for Former Citizens Who
Renounced Citizenship to Avoid United States Taxation.--Section
212(a)(10) (8 U.S.C. 1182(a)(10)), as redesignated by subsection
(b)(1), is amended by adding at the end the following:
``(D) Former citizens who renounced citizenship to
avoid taxation.--Any alien who is a former citizen of
the United States who officially renounced United
States citizenship and who is determined by the
Attorney General to have renounced United States
citizenship for the purpose of avoiding taxation by the
United States is excludable.''.
(f) Proof of Vaccination Requirement for Immigrants.--
(1) In general.--Section 212(a)(1)(A) (8 U.S.C.
1182(a)(1)(A)) is amended--
(A) by redesignating clauses (ii) and (iii) as
clauses (iii) and (iv), respectively, and
(B) by inserting after clause (i) the following new
clause:
``(ii) who seeks admission as an immigrant,
or who seeks adjustment of status to the status
of an alien lawfully admitted for permanent
residence, and who has failed to present
documentation of having received vaccination
against vaccine-preventable diseases, which
shall include at least the following diseases:
mumps, measles, rubella, polio, tetanus and
diphtheria toxoids, pertussis, influenza type B
and hepatitis B, and any other vaccinations
against vaccine-preventable diseases
recommended by the Advisory Committee for
Immunization Practices,''.
(2) Waiver.--Section 212(g) (8 U.S.C. 1182(g) is amended by
striking ``, or'' at the end of paragraph (1) and all that
follows and inserting a semicolon and the following:
``in accordance with such terms, conditions, and controls, if
any, including the giving of bond, as the Attorney General, in
the discretion of the Attorney General after consultation with
the Secretary of Health and Human Services, may by regulation
prescribe;
``(2) subsection (a)(1)(A)(ii) in the case of any alien--
``(A) who receives vaccination against the vaccine-
preventable disease or diseases for which the alien has
failed to present documentation of previous
vaccination, or
``(B) for whom a civil surgeon, medical officer, or
panel physician (as those terms are defined by 42
C.F.R. 34.2) certifies, according to such regulations
as the Secretary of Health and Human Services may
prescribe, that such vaccination would not be medically
appropriate; or
``(3) subsection (a)(1)(A)(iii) in the case of any alien, in
accordance with such terms, conditions, and controls, if any,
including the giving of bond, as the Attorney General, in the
discretion of the Attorney General after consultation with the
Secretary of Health and Human Services, may by regulation
prescribe.''.
(3) Effective date.--The amendments made by this subsection
shall apply with respect to applications for immigrant visas or
for adjustment of status filed after September 30, 1996.
(g) Adjustment in Grounds for Deportation.--Section 241 (8 U.S.C.
1251), before redesignation as section 237 by section 305(a)(2), is
amended--
(1) in the matter before paragraph (1) of subsection (a), by
striking ``in the United States'' and inserting ``in and
admitted to the United States'';
(2) in subsection (a)(1), by striking ``Excludable'' each
place it appears and inserting ``Inadmissible'';
(3) in subsection (a)(1)(A), by striking ``excludable'' and
inserting ``inadmissible''; and
(4) by amending subparagraph (B) of subsection (a)(1) to read
as follows:
``(B) Present in violation of law.--Any alien who is
present in the United States in violation of this Act
or any other law of the United States is deportable.''.
SEC. 302. INSPECTION OF ALIENS; EXPEDITED REMOVAL OF INADMISSIBLE
ARRIVING ALIENS; REFERRAL FOR HEARING (REVISED
SECTION 235).
Section 235 (8 U.S.C. 1225) is amended to read as follows:
``inspection by immigration officers; expedited removal of inadmissible
arriving aliens; referral for hearing
``Sec. 235. (a) Inspection.--
``(1) Aliens treated as applicants for admission.--An alien
present in the United States who has not been admitted, who
arrives in the United States (whether or not at a designated
port of arrival), or who is brought to the United States after
having been interdicted in international or United States
waters shall be deemed for purposes of this Act an applicant
for admission.
``(2) Stowaways.--An arriving alien who is a stowaway is not
eligible to apply for admission or to be admitted and shall be
ordered removed upon inspection by an immigration officer. Upon
such inspection if the alien indicates an intention to apply
for asylum under section 208 or a fear of persecution, the
officer shall refer the alien for an interview under subsection
(b)(1)(B). A stowaway may apply for asylum only if the stowaway
is found to have a credible fear of persecution under
subsection (b)(1)(B). In no case may a stowaway be considered
an applicant for admission or eligible for a hearing under
section 240.
``(3) Inspection.--All aliens (including alien crewmen) who
are applicants for admission or otherwise seeking admission or
readmission to or transit through the United States shall be
inspected by immigration officers.
``(4) Withdrawal of application for admission.--An alien
applying for admission may, in the discretion of the Attorney
General and at any time, be permitted to withdraw the
application for admission and depart immediately from the
United States.
``(5) Statements.--An applicant for admission may be required
to state under oath any information sought by an immigration
officer regarding the purposes and intentions of the applicant
in seeking admission to the United States, including the
applicant's intended length of stay and whether the applicant
intends to remain permanently or become a United States
citizen, and whether the applicant is inadmissible.
``(b) Inspection of Applicants for Admission.--
``(1) Inspection of aliens arriving in the united states.--
``(A) Screening.--If the examining immigration
officer determines that an alien arriving in the United
States (whether or not at a port of entry) is
inadmissible under section 212(a)(6)(C) or 212(a)(7)
and the alien--
``(i) does not indicate either an intention
to apply for asylum under section 208 or a fear
of persecution, the officer shall order the
alien removed from the United States without
further hearing or review; or
``(ii) indicates an intention to apply for
asylum under section 208 or a fear of
persecution, the officer shall refer the alien
for an interview by an asylum officer under
subparagraph (B).
``(B) Asylum interviews.--
``(i) Conduct by asylum officers.--An asylum
officer shall promptly conduct interviews of
aliens referred under subparagraph (A)(ii).
``(ii) Referral of certain aliens.--If the
officer determines at the time of the interview
that an alien has a credible fear of
persecution (within the meaning of clause (v)),
the alien shall be detained for further
consideration of the application for asylum.
``(iii) Removal without further review if no
credible fear of persecution.--
``(I) In general.--Subject to
subclause (II), if the officer
determines that an alien does not have
a credible fear of persecution, the
officer shall order the alien removed
from the United States without further
hearing or review.
``(II) Review of determination by
supervisory officer.--The Attorney
General shall promulgate regulations to
provide for the immediate review by a
supervisory asylum officer at the port
of entry of a determination under
subclause (I).
``(iv) Information about interviews.--The
Attorney General shall provide information
concerning the asylum interview described in
this subparagraph to aliens who may be
eligible. An alien who is eligible for such
interview may consult with a person or persons
of the alien's choosing prior to the interview
or any review thereof, according to regulations
prescribed by the Attorney General. Such
consultation shall be at no expense to the
Government and shall not delay the process.
``(v) Credible fear of persecution defined.--
For purposes of this subparagraph, the term
`credible fear of persecution' means (I) that
it is more probable than not that the
statements made by the alien in support of the
alien's claim are true, and (II) that there is
a significant possibility, in light of such
statements and of such other facts as are known
to the officer, that the alien could establish
eligibility for asylum under section 208.
``(C) Limitation on administrative review.--A removal
order entered in accordance with subparagraph (A)(i) or
(B)(iii)(I) is not subject to administrative appeal,
except that the Attorney General shall provide by
regulation for prompt review of such an order under
subparagraph (A)(i) against an alien who claims under
oath, or as permitted under penalty of perjury under
section 1746 of title 28, United States Code, after
having been warned of the penalties for falsely making
such claim under such conditions, to have been lawfully
admitted for permanent residence.
``(D) Limit on collateral attacks.--In any action
brought against an alien under section 275(a) or
section 276, the court shall not have jurisdiction to
hear any claim attacking the validity of an order of
removal entered under subparagraph (A)(i) or
(B)(iii)(I).
``(E) Asylum officer defined.--As used in this
paragraph, the term `asylum officer' means an
immigration officer who--
``(i) has had professional training in
country conditions, asylum law, and interview
techniques, and
``(ii) is supervised by an officer who meets
the condition described in clause (i).
``(2) Inspection of other aliens.--
``(A) In general.--Subject to subparagraph (B), in
the case of an alien who is an applicant for admission,
if the examining immigration officer determines that an
alien seeking admission is not clearly and beyond a
doubt entitled to be admitted, the alien shall be
detained for a hearing under section 240.
``(B) Exception.--Subparagraph (A) shall not apply to
an alien--
``(i) who is a crewman,
``(ii) to whom paragraph (1) applies, or
``(iii) who is a stowaway.
``(3) Challenge of decision.--The decision of the examining
immigration officer, if favorable to the admission of any
alien, shall be subject to challenge by any other immigration
officer and such challenge shall operate to take the alien
whose privilege to be admitted is so challenged, before an
immigration judge for a hearing under section 240.
``(c) Removal of Aliens Inadmissible on Security and Related
Grounds.--
``(1) Removal without further hearing.--If an immigration
officer or an immigration judge suspects that an arriving alien
may be inadmissible under subparagraph (A) (other than clause
(ii)), (B), or (C) of section 212(a)(3), the officer or judge
shall--
``(A) order the alien removed, subject to review
under paragraph (2);
``(B) report the order of removal to the Attorney
General; and
``(C) not conduct any further inquiry or hearing
until ordered by the Attorney General.
``(2) Review of order.--(A) The Attorney General shall review
orders issued under paragraph (1).
``(B) If the Attorney General--
``(i) is satisfied on the basis of confidential
information that the alien is inadmissible under
subparagraph (A) (other than clause (ii)), (B), or (C)
of section 212(a)(3), and
``(ii) after consulting with appropriate security
agencies of the United States Government, concludes
that disclosure of the information would be prejudicial
to the public interest, safety, or security,
the Attorney General may order the alien removed without
further inquiry or hearing by an immigration judge.
``(C) If the Attorney General does not order the removal of
the alien under subparagraph (B), the Attorney General shall
specify the further inquiry or hearing that shall be conducted
in the case.
``(3) Submission of statement and information.--The alien or
the alien's representative may submit a written statement and
additional information for consideration by the Attorney
General.
``(d) Authority Relating to Inspections.--
``(1) Authority to search conveyances.--Immigration officers
are authorized to board and search any vessel, aircraft,
railway car, or other conveyance or vehicle in which they
believe aliens are being brought into the United States.
``(2) Authority to order detention and delivery of arriving
aliens.--Immigration officers are authorized to order an owner,
agent, master, commanding officer, person in charge, purser, or
consignee of a vessel or aircraft bringing an alien (except an
alien crewmember) to the United States--
``(A) to detain the alien on the vessel or at the
airport of arrival, and
``(B) to deliver the alien to an immigration officer
for inspection or to a medical officer for examination.
``(3) Administration of oath and consideration of evidence.--
The Attorney General and any immigration officer shall have
power to administer oaths and to take and consider evidence of
or from any person touching the privilege of any alien or
person he believes or suspects to be an alien to enter,
reenter, transit through, or reside in the United States or
concerning any matter which is material and relevant to the
enforcement of this Act and the administration of the Service.
``(4) Subpoena authority.--(A) The Attorney General and any
immigration officer shall have power to require by subpoena the
attendance and testimony of witnesses before immigration
officers and the production of books, papers, and documents
relating to the privilege of any person to enter, reenter,
reside in, or pass through the United States or concerning any
matter which is material and relevant to the enforcement of
this Act and the administration of the Service, and to that end
may invoke the aid of any court of the United States.
``(B) Any United States district court within the
jurisdiction of which investigations or inquiries are being
conducted by an immigration officer may, in the event of
neglect or refusal to respond to a subpoena issued under this
paragraph or refusal to testify before an immigration officer,
issue an order requiring such persons to appear before an
immigration officer, produce books, papers, and documents if
demanded, and testify, and any failure to obey such order of
the court may be punished by the court as a contempt
thereof.''.
SEC. 303. APPREHENSION AND DETENTION OF ALIENS NOT LAWFULLY IN THE
UNITED STATES (REVISED SECTION 236).
(a) In General.--Section 236 (8 U.S.C. 1226) is amended to read as
follows:
``apprehension and detention of aliens not lawfully in the united
states
``Sec. 236. (a) Arrest, Detention, and Release.--On a warrant issued
by the Attorney General, an alien may be arrested and detained pending
a decision on whether the alien is to be removed from the United
States. Except as provided in subsection (c) and pending such decision,
the Attorney General--
``(1) may continue to detain the arrested alien; and
``(2) may release the alien on--
``(A) bond of at least $1,500 with security approved
by, and containing conditions prescribed by, the
Attorney General; or
``(B) conditional parole; but
``(3) may not provide the alien with work authorization
(including an `employment authorized' endorsement or other
appropriate work permit), unless the alien is lawfully admitted
for permanent residence or otherwise would (without regard to
removal proceedings) be provided such authorization.
``(b) Revocation of Bond or Parole.--The Attorney General at any time
may revoke a bond or parole authorized under subsection (a), rearrest
the alien under the original warrant, and detain the alien.
``(c) Aliens Convicted of Aggravated Felonies.--
``(1) Custody.--The Attorney General shall take into custody
any alien convicted of an aggravated felony when the alien is
released, without regard to whether the alien is released on
parole, supervised release, or probation, and without regard to
whether the alien may be arrested or imprisoned again for the
same offense.
``(2) Release.--The Attorney General may release the alien
only if--
``(A) the alien was lawfully admitted to the United
States and satisfies the Attorney General that the
alien will not pose a danger to the safety of other
persons or of property and is likely to appear for any
scheduled proceeding;
``(B) the alien was not lawfully admitted to the
United States, cannot be removed because the designated
country of removal will not accept the alien, and
satisfies the Attorney General that the alien will not
pose a danger to the safety of other persons or of
property and is likely to appear for any scheduled
proceeding; or
``(C) the Attorney General decides pursuant to
section 3521 of title 18, United States Code, that
release of the alien from custody is necessary to
provide protection to a witness, a potential witness, a
person cooperating with an investigation into major
criminal activity, or an immediate family member or
close associate of a witness, potential witness, or
person cooperating with such an investigation.
A decision relating to such release shall take place in
accordance with a procedure that considers the severity of the
offense committed by the alien.
``(d) Identification of Aliens Convicted of Aggravated Felonies.--(1)
The Attorney General shall devise and implement a system--
``(A) to make available, daily (on a 24-hour basis), to
Federal, State, and local authorities the investigative
resources of the Service to determine whether individuals
arrested by such authorities for aggravated felonies are
aliens;
``(B) to designate and train officers and employees of the
Service to serve as a liaison to Federal, State, and local law
enforcement and correctional agencies and courts with respect
to the arrest, conviction, and release of any alien charged
with an aggravated felony; and
``(C) which uses computer resources to maintain a current
record of aliens who have been convicted of an aggravated
felony and who have been removed.
``(2) The record under paragraph (1)(C) shall be made available--
``(A) to inspectors at ports of entry and to border patrol
agents at sector headquarters for purposes of immediate
identification of any such previously removed alien seeking to
reenter the United States, and
``(B) to officials of the Department of State for use in its
automated visa lookout system.''.
(b) Increase in INS Detention Facilities.--Subject to the
availability of appropriations, the Attorney General shall provide for
an increase in the detention facilities of the Immigration and
Naturalization Service to at least 9,000 beds by fiscal year 1997.
SEC. 304. REMOVAL PROCEEDINGS; CANCELLATION OF REMOVAL AND ADJUSTMENT
OF STATUS; VOLUNTARY DEPARTURE (REVISED AND NEW
SECTIONS 239 TO 240C).
(a) In General.--Chapter 4 of title II is amended--
(1) by redesignating section 239 as section 234 and by moving
such section to immediately follow section 233;
(2) by redesignating section 240 (8 U.S.C. 1230) as section
240C; and
(3) by inserting after section 238 the following new
sections:
``initiation of removal proceedings
``Sec. 239. (a) Notice to Appear.--
``(1) In general.--In removal proceedings under section 240,
written notice (in this section referred to as a `notice to
appear') shall be given in person to the alien (or, if personal
service is not practicable, through service by mail to the
alien or to the alien's counsel of record, if any) specifying
the following:
``(A) The nature of the proceedings against the
alien.
``(B) The legal authority under which the proceedings
are conducted.
``(C) The acts or conduct alleged to be in violation
of law.
``(D) The charges against the alien and the statutory
provisions alleged to have been violated.
``(E) The alien may be represented by counsel and the
alien will be provided (i) a period of time to secure
counsel under subsection (b)(1) and (ii) a current list
of counsel prepared under subsection (b)(2).
``(F)(i) The requirement that the alien must
immediately provide (or have provided) the Attorney
General with a written record of an address and
telephone number (if any) at which the alien may be
contacted respecting proceedings under section 240.
``(ii) The requirement that the alien must provide
the Attorney General immediately with a written record
of any change of the alien's address or telephone
number.
``(iii) The consequences under section 240(b)(5) of
failure to provide address and telephone information
pursuant to this subparagraph.
``(G)(i) The time and place at which the proceedings
will be held.
``(ii) The consequences under section 240(b)(5) of
the failure, except under exceptional circumstances, to
appear at such proceedings.
``(2) Notice of change in time or place of proceedings.--
``(A) In general.--In removal proceedings under
section 240, in the case of any change or postponement
in the time and place of such proceedings, subject to
subparagraph (B) a written notice shall be given in
person to the alien (or, if personal service is not
practicable, through service by mail to the alien or to
the alien's counsel of record, if any) specifying--
``(i) the new time or place of the
proceedings, and
``(ii) the consequences under section
240(b)(5) of failing, except under exceptional
circumstances, to attend such proceedings.
``(B) Exception.--In the case of an alien not in
detention, a written notice shall not be required under
this paragraph if the alien has failed to provide the
address required under paragraph (1)(F).
``(3) Central address files.--The Attorney General shall
create a system to record and preserve on a timely basis
notices of addresses and telephone numbers (and changes)
provided under paragraph (1)(F).
``(b) Securing of Counsel.--
``(1) In general.--In order that an alien be permitted the
opportunity to secure counsel before the first hearing date in
proceedings under section 240, the hearing date shall not be
scheduled earlier than 10 days after the service of the notice
to appear, unless the alien requests in writing an earlier
hearing date.
``(2) Current lists of counsel.--The Attorney General shall
provide for lists (updated not less often than quarterly) of
persons who have indicated their availability to represent pro
bono aliens in proceedings under section 240. Such lists shall
be provided under subsection (a)(1)(E) and otherwise made
generally available.
``(c) Service by Mail.--Service by mail under this section shall be
sufficient if there is proof of attempted delivery to the last address
provided by the alien in accordance with subsection (a)(1)(F).
``(d) Prompt Initiation of Removal.--(1) In the case of an alien who
is convicted of an offense which makes the alien deportable, the
Attorney General shall begin any removal proceeding as expeditiously as
possible after the date of the conviction.
``(2) Nothing in this subsection 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.
``removal proceedings
``Sec. 240. (a) Proceeding.--
``(1) In general.--An immigration judge shall conduct
proceedings for deciding the inadmissibility or deportability
of an alien.
``(2) Charges.--An alien placed in proceedings under this
section may be charged with any applicable ground of
inadmissibility under section 212(a) or any applicable ground
of deportability under section 237(a).
``(3) Exclusive procedures.--Unless otherwise specified in
this Act, a proceeding under this section shall be the sole and
exclusive procedure for determining whether an alien may be
admitted to the United States or, if the alien has been so
admitted, removed from the United States. Nothing in this
section shall affect proceedings conducted pursuant to section
238.
``(b) Conduct of Proceeding.--
``(1) Authority of immigration judge.--The immigration judge
shall administer oaths, receive evidence, and interrogate,
examine, and cross-examine the alien and any witnesses. The
immigration judge may issue subpoenas for the attendance of
witnesses and presentation of evidence. The immigration judge
shall have authority (under regulations prescribed by the
Attorney General) to sanction by civil money penalty any action
(or inaction) in contempt of the judge's proper exercise of
authority under this Act.
``(2) Form of proceeding.--
``(A) In general.--The proceeding may take place--
``(i) in person,
``(ii) through video conference, or
``(iii) subject to subparagraph (B), through
telephone conference.
``(B) Consent required in certain cases.--An
evidentiary hearing on the merits may only be conducted
through a telephone conference with the consent of the
alien involved after the alien has been advised of the
right to proceed in person or through video conference.
``(3) Presence of alien.--If it is impracticable by reason of
an alien's mental incompetency for the alien to be present at
the proceeding, the Attorney General shall prescribe safeguards
to protect the rights and privileges of the alien.
``(4) Aliens rights in proceeding.--In proceedings under this
section, under regulations of the Attorney General--
``(A) the alien shall have the privilege of being
represented, at no expense to the Government, by
counsel of the alien's choosing who is authorized to
practice in such proceedings,
``(B) the alien shall have a reasonable opportunity
to examine the evidence against the alien, to present
evidence on the alien's own behalf, and to cross-
examine witnesses presented by the Government, and
``(C) a complete record shall be kept of all
testimony and evidence produced at the proceeding.
``(5) Consequences of failure to appear.--
``(A) In general.--Any alien who, after written
notice required under paragraph (1) or (2) of section
239(a) has been provided to the alien or the alien's
counsel of record, does not attend a proceeding under
this section, shall be ordered removed in absentia if
the Service establishes by clear, unequivocal, and
convincing evidence that the written notice was so
provided and that the alien is removable (as defined in
subsection (e)(2)). The written notice by the Attorney
General shall be considered sufficient for purposes of
this subparagraph if provided at the most recent
address provided under section 239(a)(1)(F).
``(B) No notice if failure to provide address
information.--No written notice shall be required under
subparagraph (A) if the alien has failed to provide the
address required under section 239(a)(1)(F).
``(C) Rescission of order.--Such an order may be
rescinded only--
``(i) upon a motion to reopen filed within
180 days after the date of the order of removal
if the alien demonstrates that the failure to
appear was because of exceptional circumstances
(as defined in subsection (e)(1)), or
``(ii) upon a motion to reopen filed at any
time if the alien demonstrates that the alien
did not receive notice in accordance with
paragraph (1) or (2) of section 239(a) or the
alien demonstrates that the alien was in
Federal or State custody and did not appear
through no fault of the alien.
The filing of the motion to reopen described in clause
(i) or (ii) shall stay the removal of the alien pending
disposition of the motion.
``(D) Effect on judicial review.--Any petition for
review under section 242 of an order entered in
absentia under this paragraph shall (except in cases
described in section 242(b)(5)) be confined to (i) the
validity of the notice provided to the alien, (ii) the
reasons for the alien's not attending the proceeding,
and (iii) whether or not the alien is removable.
``(6) Treatment of frivolous behavior.--The Attorney General
shall, by regulation--
``(A) define in a proceeding before an immigration
judge or before an appellate administrative body under
this title, frivolous behavior for which attorneys may
be sanctioned,
``(B) specify the circumstances under which an
administrative appeal of a decision or ruling will be
considered frivolous and will be summarily dismissed,
and
``(C) impose appropriate sanctions (which may include
suspension and disbarment) in the case of frivolous
behavior.
Nothing in this paragraph shall be construed as limiting the
authority of the Attorney General to take actions with respect
to inappropriate behavior.
``(7) Limitation on discretionary relief for failure to
appear.--Any alien against whom a final order of removal is
entered in absentia under this subsection and who, at the time
of the notice described in paragraph (1) or (2) of section
239(a), was provided oral notice, either in the alien's native
language or in another language the alien understands, of the
time and place of the proceedings and of the consequences under
this paragraph of failing, other than because of exceptional
circumstances (as defined in subsection (e)(1)) to attend a
proceeding under this section, shall not be eligible for relief
under section 240A, 240B, 245, 248, or 249 for a period of 10
years after the date of the entry of the final order of
removal.
``(c) Decision and Burden of Proof.--
``(1) Decision.--
``(A) In general.--At the conclusion of the
proceeding the immigration judge shall decide whether
an alien is removable from the United States. The
determination of the immigration judge shall be based
only on the evidence produced at the hearing.
``(B) Certain medical decisions.--If a medical
officer or civil surgeon or board of medical officers
has certified under section 232(b) that an alien has a
disease, illness, or addiction which would make the
alien inadmissible under paragraph (1) of section
212(a), the decision of the immigration judge shall be
based solely upon such certification.
``(2) Burden on alien.--In the proceeding the alien has the
burden of establishing--
``(A) if the alien is an applicant for admission,
that the alien is clearly and beyond doubt entitled to
be admitted and is not inadmissible under section 212;
or
``(B) by clear and convincing evidence, that the
alien is lawfully present in the United States pursuant
to a prior admission.
In meeting the burden of proof under subparagraph (B), the
alien shall have access to the alien's visa or other entry
document, if any, and any other records and documents, not
considered by the Attorney General to be confidential,
pertaining to the alien's admission or presence in the United
States.
``(3) Burden on service in cases of deportable aliens.--In
the proceeding the Service has the burden of establishing by
clear and convincing evidence that, in the case of an alien who
has been admitted to the United States, the alien is
deportable. No decision on deportability shall be valid unless
it is based upon reasonable, substantial, and probative
evidence.
``(4) Notice.--If the immigration judge decides that the
alien is removable and orders the alien to be removed, the
judge shall inform the alien of the right to appeal that
decision and of the consequences for failure to depart under
the order of removal, including civil and criminal penalties.
``(5) Motions to reconsider.--
``(A) In general.--The alien may file one motion to
reconsider a decision that the alien is removable from
the United States.
``(B) Deadline.--The motion must be filed within 30
days of the date of entry of a final administrative
order of removal.
``(C) Contents.--The motion shall specify the errors
of law or fact in the previous order and shall be
supported by pertinent authority.
``(6) Motions to reopen.--
``(A) In general.--An alien may file one motion to
reopen proceedings under this section.
``(B) Contents.--The motion to reopen shall state the
new facts that will be proven at a hearing to be held
if the motion is granted, and shall be supported by
affidavits or other evidentiary material.
``(C) Deadline.--
``(i) In general.--Except as provided in this
subparagraph, the motion to reopen shall be
filed within 90 days of the date of entry of a
final administrative order of removal.
``(ii) Asylum.--There is no time limit on the
filing of a motion to reopen if the basis of
the motion is to apply for relief under
sections 208 or 241(b)(3) and is based on
changed country conditions arising in the
country of nationality or the country to which
removal has been ordered, if such evidence is
material and was not available and would not
have been discovered or presented at the
previous proceeding.
``(iii) Failure to appear.--A motion to
reopen may be filed within 180 days after the
date of the final order of removal if the order
has been entered pursuant to subsection (b)(5)
due to the alien's failure to appear for
proceedings under this section and the alien
establishes that the alien's failure to appear
was because of exceptional circumstances beyond
the control of the alien or because the alien
did not receive the notice required under
section 239(a)(2).
``(d) Stipulated Removal.--The Attorney General shall provide by
regulation for the entry by an immigration judge of an order of removal
stipulated to by the alien (or the alien's representative) and the
Service. A stipulated order shall constitute a conclusive determination
of the alien's removability from the United States.
``(e) Definitions.--In this section and section 240A:
``(1) Exceptional circumstances.--The term `exceptional
circumstances' refers to exceptional circumstances (such as
serious illness of the alien or serious illness or death of the
spouse, child, or parent of the alien, but not including less
compelling circumstances) beyond the control of the alien.
``(2) Removable.--The term `removable' means--
``(A) in the case of an alien not admitted to the
United States, that the alien is inadmissible under
section 212, or
``(B) in the case of an alien admitted to the United
States, that the alien is deportable under section 237.
``cancellation of removal; adjustment of status
``Sec. 240A. (a) Cancellation of Removal for Certain Permanent
Residents.--The Attorney General may cancel removal in the case of an
alien who is inadmissible or deportable from the United States if the
alien--
``(1) has been an alien lawfully admitted for permanent
residence for not less than 5 years,
``(2) has resided in the United States continuously for 7
years after having been admitted in any status, and
``(3) has not been convicted of an aggravated felony or
felonies for which the alien has been sentenced, in the
aggregate, to a term of imprisonment of at least 5 years.
``(b) Cancellation of Removal and Adjustment of Status for Certain
Nonpermanent Residents.--
``(1) In general.--The Attorney General may cancel removal in
the case of an alien who is inadmissible or deportable from the
United States if the alien--
``(A) has been physically present in the United
States for a continuous period of not less than 7 years
immediately preceding the date of such application;
``(B) has been a person of good moral character
during such period;
``(C) has not been convicted of an aggravated felony;
and
``(D) establishes that removal would result in
extreme hardship to the alien or to the alien's spouse,
parent, or child, who is a citizen of the United States
or an alien lawfully admitted for permanent residence.
``(2) Special rule for battered spouse or child.--The
Attorney General may cancel removal in the case of an alien who
is inadmissible or deportable from the United States if the
alien--
``(A) has been battered or subjected to extreme
cruelty in the United States by a spouse or parent who
is a United States citizen or lawful permanent resident
(or is the parent of a child of a United States citizen
or lawful permanent resident and the child has been
battered or subjected to extreme cruelty in the United
States by such citizen or permanent resident parent);
``(B) has been physically present in the United
States for a continuous period of not less than 3 years
immediately preceding the date of such application;
``(C) has been a person of good moral character
during such period;
``(D) is not inadmissible under paragraph (2) or (3)
of section 212(a), is not deportable under paragraph
(1)(G) or (2) through (4) of section 237(a), and has
not been convicted of an aggravated felony; and
``(E) establishes that removal would result in
extreme hardship to the alien, the alien's child, or
(in the case of an alien who is a child) to the alien's
parent.
In acting on applications under this paragraph, 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 Attorney General.
``(3) Adjustment of status.--The Attorney General may adjust
to the status of an alien lawfully admitted for permanent
residence any alien who the Attorney General determines meets
the requirements of paragraph (1) or (2). The number of
adjustments under this paragraph shall not exceed 4,000 for any
fiscal year. The Attorney General shall record the alien's
lawful admission for permanent residence as of the date the
Attorney General's cancellation of removal under paragraph (1)
or (2) or determination under this paragraph.
``(c) Aliens Ineligible for Relief.--The provisions of subsections
(a) and (b)(1) shall not apply to any of the following aliens:
``(1) An alien who entered the United States as a crewman
subsequent to June 30, 1964.
``(2) An alien who was admitted to the United States as a
nonimmigrant exchange alien as defined in section
101(a)(15)(J), or has acquired the status of such a
nonimmigrant exchange alien after admission, in order to
receive graduate medical education or training, regardless of
whether or not the alien is subject to or has fulfilled the
two-year foreign residence requirement of section 212(e).
``(3) An alien who--
``(A) was admitted to the United States as a
nonimmigrant exchange alien as defined in section
101(a)(15)(J) or has acquired the status of such a
nonimmigrant exchange alien after admission other than
to receive graduate medical education or training,
``(B) is subject to the two-year foreign residence
requirement of section 212(e), and
``(C) has not fulfilled that requirement or received
a waiver thereof.
``(4) An alien who is inadmissible under section 212(a)(3) or
deportable under subparagraph (B) or (D) of section 237(a)(4).
``(d) Special Rules Relating to Continuous Residence or Physical
Presence.--
``(1) Termination of continuous period.--For purposes of this
section, any period of continuous residence or continuous
physical presence in the United States shall be deemed to end
when the alien is served a notice to appear under section
239(a).
``(2) Treatment of certain breaks in presence.--An alien
shall be considered to have failed to maintain continuous
physical presence in the United States under subsections (b)(1)
and (b)(2) if the alien has departed from the United States for
any periods in the aggregate exceeding 180 days, unless the
Attorney General finds that return could not be accomplished
within that time period due to emergent reasons.
``(3) Continuity not required because of honorable service in
armed forces and presence upon entry into service.--The
requirements of continuous residence or continuous physical
presence in the United States under subsections (a) and (b)
shall not apply to an alien who--
``(A) has served for a minimum period of 24 months in
an active-duty status in the Armed Forces of the United
States and, if separated from such service, was
separated under honorable conditions, and
``(B) at the time of the alien's enlistment or
induction was in the United States.
``voluntary departure
``Sec. 240B. (a) Certain Conditions.--
``(1) In general.--The Attorney General may permit an alien
voluntarily to depart the United States at the alien's own
expense under this subsection, in lieu of being subject to
proceedings under section 240 or prior to the completion of
such proceedings, if the alien is not deportable under section
237(a)(2)(A)(iii) or section 237(a)(4)(B).
``(2) Period.--Permission to depart voluntarily under this
subsection shall not be valid for a period exceeding 120 days.
``(3) Bond.--The Attorney General may require an alien
permitted to depart voluntarily under this subsection to post a
voluntary departure bond, to be surrendered upon proof that the
alien has departed the United States within the time specified.
``(4) Treatment of aliens arriving in the united states.--In
the case of an alien who is arriving in the United States and
with respect to whom proceedings under section 240 are (or
would otherwise be) initiated at the time of such alien's
arrival, paragraph (1) shall not apply. Nothing in this
paragraph shall be construed as preventing such an alien from
withdrawing the application for admission in accordance with
section 235(a)(4).
``(b) At Conclusion of Proceedings.--
``(1) In general.--The Attorney General may permit an alien
voluntarily to depart the United States at the alien's own
expense if, at the conclusion of a proceeding under section
240, the immigration judge enters an order granting voluntary
departure in lieu of removal and finds that--
``(A) the alien has been physically present in the
United States for a period of at least one year
immediately preceding the date the notice to appear was
served under section 239(a);
``(B) the alien is, and has been, a person of good
moral character for at least 5 years immediately
preceding the alien's application for voluntary
departure;
``(C) the alien is not deportable under section
237(a)(2)(A)(iii) or section 237(a)(4); and
``(D) the alien has established by clear and
convincing evidence that the alien has the means to
depart the United States and intends to do so.
``(2) Period.--Permission to depart voluntarily under this
subsection shall not be valid for a period exceeding 60 days.
``(3) Bond.--An alien permitted to depart voluntarily under
this subsection shall be required to post a voluntary departure
bond, in an amount necessary to ensure that the alien will
depart, to be surrendered upon proof that the alien has
departed the United States within the time specified.
``(c) Aliens Not Eligible.--The Attorney General shall not permit an
alien to depart voluntarily under this section if the alien was
previously permitted to so depart after having been found inadmissible
under section 212(a)(9).
``(d) Civil Penalty for Failure to Depart.--If an alien is permitted
to depart voluntarily under this section and fails voluntarily to
depart the United States within the time period specified, the alien
shall be subject to a civil penalty of not less than $1,000 and not
more than $5,000, and be ineligible for a period of 10 years for any
further relief under this section and sections 240A, 245, 248, and 249.
``(e) Additional Conditions.--The Attorney General may by regulation
limit eligibility for voluntary departure under this section for any
class or classes of aliens.
``(f) Appeals of Denials.--An alien may appeal from denial of a
request for an order of voluntary departure under subsection (b) in
accordance with the procedures in section 242. Notwithstanding the
pendency of such appeal, the alien shall be removable from the United
States 60 days after entry of the order of removal. The alien's removal
from the United States shall not moot the appeal.''.
(b) Repeal of Section 212(c).--Section 212(c) (8 U.S.C. 1182(c)) is
repealed.
SEC. 305. DETENTION AND REMOVAL OF ALIENS ORDERED REMOVED (NEW SECTION
241).
(a) In General.--Title II is further amended--
(1) by striking section 237 (8 U.S.C. 1227),
(2) by redesignating section 241 as section 237 and by moving
such section to immediately follow section 236, and
(3) by inserting after section 240C (as redesignated by
section 304(a)(2)) the following new section:
``detention and removal of aliens ordered removed
``Sec. 241. (a) Detention, Release, and Removal of Aliens Ordered
Removed.--
``(1) Removal period.--
``(A) In general.--Except as otherwise provided in
this section, when an alien is ordered removed, the
Attorney General shall remove the alien from the United
States within a period of 90 days (in this section
referred to as the `removal period').
``(B) Beginning of period.--The removal period begins
on the latest of the following:
``(i) The date the order of removal becomes
administratively final.
``(ii) If the removal order is judicially
reviewed and such review serves to stay the
removal of the alien, the date of the court's
final order.
``(iii) If the alien is detained or confined
(except under an immigration process), the date
the alien is released from detention or
confinement.
``(C) Suspension of period.--The removal period shall
be extended beyond a period of 90 days and the alien
may remain in detention during such extended period if
the alien willfully fails or refuses to make timely
application in good faith for travel or other documents
necessary to the alien's departure or conspires or acts
to prevent the alien's removal subject to an order of
removal.
``(2) Detention and release by the attorney general.--During
the removal period, the Attorney General shall detain the
alien. If there is insufficient detention space to detain the
alien, the Attorney General shall make a specific finding to
this effect and may release the alien on a bond containing such
conditions as the Attorney General may prescribe.
``(3) Supervision after 90-day period.--If the alien does not
leave or is not removed within the removal period, the alien,
pending removal, shall be subject to supervision under
regulations prescribed by the Attorney General. The regulations
shall include provisions requiring the alien--
``(A) to appear before an immigration officer
periodically for identification;
``(B) to submit, if necessary, to a medical and
psychiatric examination at the expense of the United
States Government;
``(C) to give information under oath about the
alien's nationality, circumstances, habits,
associations, and activities, and other information the
Attorney General considers appropriate; and
``(D) to obey reasonable written restrictions on the
alien's conduct or activities that the Attorney General
prescribes for the alien.
``(4) Aliens imprisoned, arrested, or on parole, supervised
release, or probation.--Except as provided in section 343(a) of
the Public Health Service Act (42 U.S.C. 259(a)), the Attorney
General may not remove an alien who is sentenced to
imprisonment until the alien is released from imprisonment.
Parole, supervised release, probation, or possibility of arrest
or further imprisonment is not a reason to defer removal.
``(5) Reinstatement of removal orders against aliens
illegally reentering.--If the Attorney General finds that an
alien has reentered the United States illegally after having
been removed or having departed voluntarily, under an order of
removal, the prior order of removal is reinstated from its
original date and is not subject to being reopened or reviewed,
and the alien shall be removed under the prior order at any
time after the reentry.
``(6) Inadmissible aliens.--An alien ordered removed who is
inadmissible under section 212 may be detained beyond the
removal period and, if released, shall be subject to the terms
of supervision in paragraph (3).
``(7) Employment authorization.--No alien ordered removed
shall be eligible to receive authorization to be employed in
the United States unless the Attorney General makes a specific
finding that--
``(A) the alien cannot be removed due to the refusal
of all countries designated by the alien or under this
section to receive the alien, or
``(B) the removal of the alien is otherwise
impracticable or contrary to the public interest.
``(b) Countries to Which Aliens May Be Removed.--
``(1) Aliens arriving at the united states.--Subject to
paragraph (3)--
``(A) In general.--Except as provided by
subparagraphs (B) and (C), an alien who arrives at the
United States and with respect to whom proceedings
under section 240 were initiated at the time of such
alien's arrival shall be removed to the country in
which the alien boarded the vessel or aircraft on which
the alien arrived in the United States.
``(B) Travel from contiguous territory.--If the alien
boarded the vessel or aircraft on which the alien
arrived in the United States in a foreign territory
contiguous to the United States, an island adjacent to
the United States, or an island adjacent to a foreign
territory contiguous to the United States, and the
alien is not a native, citizen, subject, or national
of, or does not reside in, the territory or island,
removal shall be to the country in which the alien
boarded the vessel that transported the alien to the
territory or island.
``(C) Alternative countries.--If the government of
the country designated in subparagraph (A) or (B) is
unwilling to accept the alien into that country's
territory, removal shall be to any of the following
countries, as directed by the Attorney General:
``(i) The country of which the alien is a
citizen, subject, or national.
``(ii) The country in which the alien was
born.
``(iii) The country in which the alien has a
residence.
``(iv) A country with a government that will
accept the alien into the country's territory
if removal to each country described in a
previous clause of this subparagraph is
impracticable, inadvisable, or impossible.
``(2) Other aliens.--Subject to paragraph (3)--
``(A) Selection of country by alien.--Except as
otherwise provided in this paragraph--
``(i) any alien not described in paragraph
(1) who has been ordered removed may designate
one country to which the alien wants to be
removed, and
``(ii) the Attorney General shall remove the
alien to the country the alien so designates.
``(B) Limitation on designation.--An alien may
designate under subparagraph (A)(i) a foreign territory
contiguous to the United States, an adjacent island, or
an island adjacent to a foreign territory contiguous to
the United States as the place to which the alien is to
be removed only if the alien is a native, citizen,
subject, or national of, or has resided in, that
designated territory or island.
``(C) Disregarding designation.--The Attorney General
may disregard a designation under subparagraph (A)(i)
if--
``(i) the alien fails to designate a country
promptly;
``(ii) the government of the country does not
inform the Attorney General finally, within 30
days after the date the Attorney General first
inquires, whether the government will accept
the alien into the country;
``(iii) the government of the country is not
willing to accept the alien into the country;
or
``(iv) the Attorney General decides that
removing the alien to the country is
prejudicial to the United States.
``(D) Alternative country.--If an alien is not
removed to a country designated under subparagraph
(A)(i), the Attorney General shall remove the alien to
a country of which the alien is a subject, national, or
citizen unless the government of the country--
``(i) does not inform the Attorney General or
the alien finally, within 30 days after the
date the Attorney General first inquires or
within another period of time the Attorney
General decides is reasonable, whether the
government will accept the alien into the
country; or
``(ii) is not willing to accept the alien
into the country.
``(E) Additional removal countries.--If an alien is
not removed to a country under the previous
subparagraphs of this paragraph, the Attorney General
shall remove the alien to any of the following
countries:
``(i) The country from which the alien was
admitted to the United States.
``(ii) The country in which is located the
foreign port from which the alien left for the
United States or for a foreign territory
contiguous to the United States.
``(iii) A country in which the alien resided
before the alien entered the country from which
the alien entered the United States.
``(iv) The country in which the alien was
born.
``(v) The country that had sovereignty over
the alien's birthplace when the alien was born.
``(vi) The country in which the alien's
birthplace is located when the alien is ordered
removed.
``(vii) If impracticable, inadvisable, or
impossible to remove the alien to each country
described in a previous clause of this
subparagraph, another country whose government
will accept the alien into that country.
``(F) Removal country when united states is at war.--
When the United States is at war and the Attorney
General decides that it is impracticable, inadvisable,
inconvenient, or impossible to remove an alien under
this subsection because of the war, the Attorney
General may remove the alien--
``(i) to the country that is host to a
government in exile of the country of which the
alien is a citizen or subject if the government
of the host country will permit the alien's
entry; or
``(ii) if the recognized government of the
country of which the alien is a citizen or
subject is not in exile, to a country, or a
political or territorial subdivision of a
country, that is very near the country of which
the alien is a citizen or subject, or, with the
consent of the government of the country of
which the alien is a citizen or subject, to
another country.
``(c) Removal of Aliens Arriving at Port of Entry.--
``(1) Vessels and aircraft.--An alien arriving at a port of
entry of the United States who is ordered removed either
without a hearing under section 235(a)(1) or 235(c) or pursuant
to proceedings under section 240 initiated at the time of such
alien's arrival shall be removed immediately on a vessel or
aircraft owned by the owner of the vessel or aircraft on which
the alien arrived in the United States, unless--
``(A) it is impracticable to remove the alien on one
of those vessels or aircraft within a reasonable time,
or
``(B) the alien is a stowaway--
``(i) who has been ordered removed in
accordance with section 235(a)(1),
``(ii) who has requested asylum, and
``(iii) whose application has not been
adjudicated or whose asylum application has
been denied but who has not exhausted all
appeal rights.
``(2) Stay of removal.--
``(A) In general.--The Attorney General may stay the
removal of an alien under this subsection if the
Attorney General decides that--
``(i) immediate removal is not practicable or
proper; or
``(ii) the alien is needed to testify in the
prosecution of a person for a violation of a
law of the United States or of any State.
``(B) Payment of detention costs.--During the period
an alien is detained because of a stay of removal under
subparagraph (A)(ii), the Attorney General may pay from
the appropriation `Immigration and Naturalization
Service--Salaries and Expenses'--
``(i) the cost of maintenance of the alien;
and
``(ii) a witness fee of $1 a day.
``(C) Release during stay.--The Attorney General may
release an alien whose removal is stayed under
subparagraph (A)(ii) on--
``(i) the alien's filing a bond of at least
$500 with security approved by the Attorney
General;
``(ii) condition that the alien appear when
required as a witness and for removal; and
``(iii) other conditions the Attorney General
may prescribe.
``(3) Costs of detention and maintenance pending removal.--
``(A) In general.--Except as provided in subparagraph
(B) and subsection (d), an owner of a vessel or
aircraft bringing an alien to the United States shall
pay the costs of detaining and maintaining the alien--
``(i) while the alien is detained under
subsection (d)(1), and
``(ii) in the case of an alien who is a
stowaway, while the alien is being detained
pursuant to--
``(I) subsection (d)(2)(A) or
(d)(2)(B)(i),
``(II) subsection (d)(2)(B)(ii) or
(iii) for the period of time reasonably
necessary for the owner to arrange for
repatriation or removal of the
stowaway, including obtaining necessary
travel documents, but not to extend
beyond the date on which it is
ascertained that such travel documents
cannot be obtained from the country to
which the stowaway is to be returned,
or
``(III) section 235(b)(1)(B)(ii), for
a period not to exceed 15 days
(excluding Saturdays, Sundays, and
holidays) commencing on the first such
day which begins on the earlier of 72
hours after the time of the initial
presentation of the stowaway for
inspection or at the time the stowaway
is determined to have a credible fear
of persecution.
``(B) Nonapplication.--Subparagraph (A) shall not
apply if--
``(i) the alien is a crewmember;
``(ii) the alien has an immigrant visa;
``(iii) the alien has a nonimmigrant visa or
other documentation authorizing the alien to
apply for temporary admission to the United
States and applies for admission not later than
120 days after the date the visa or
documentation was issued;
``(iv) the alien has a reentry permit and
applies for admission not later than 120 days
after the date of the alien's last inspection
and admission;
``(v)(I) the alien has a nonimmigrant visa or
other documentation authorizing the alien to
apply for temporary admission to the United
States or a reentry permit;
``(II) the alien applies for admission more
than 120 days after the date the visa or
documentation was issued or after the date of
the last inspection and admission under the
reentry permit; and
``(III) the owner of the vessel or aircraft
satisfies the Attorney General that the
existence of the condition relating to
inadmissibility could not have been discovered
by exercising reasonable care before the alien
boarded the vessel or aircraft; or
``(vi) the individual claims to be a national
of the United States and has a United States
passport.
``(d) Requirements of Persons Providing Transportation.--
``(1) Removal at time of arrival.--An owner, agent, master,
commanding officer, person in charge, purser, or consignee of a
vessel or aircraft bringing an alien (except an alien
crewmember) to the United States shall--
``(A) receive an alien back on the vessel or aircraft
or another vessel or aircraft owned or operated by the
same interests if the alien is ordered removed under
this part; and
``(B) take the alien to the foreign country to which
the alien is ordered removed.
``(2) Alien stowaways.--An owner, agent, master, commanding
officer, charterer, or consignee of a vessel or aircraft
arriving in the United States with an alien stowaway--
``(A) shall detain the alien on board the vessel or
aircraft, or at such place as the Attorney General
shall designate, until completion of the inspection of
the alien by an immigration officer;
``(B) may not permit the stowaway to land in the
United States, except pursuant to regulations of the
Attorney General temporarily--
``(i) for medical treatment,
``(ii) for detention of the stowaway by the
Attorney General, or
``(iii) for departure or removal of the
stowaway; and
``(C) if ordered by an immigration officer, shall
remove the stowaway on the vessel or aircraft or on
another vessel or aircraft.
The Attorney General shall grant a timely request to remove the
stowaway under subparagraph (C) on a vessel or aircraft other
than that on which the stowaway arrived if any travel documents
necessary for departure or repatriation of the stowaway have
been obtained and removal of the stowaway will not be
unreasonably delayed.
``(3) Removal upon order.--An owner, agent, master,
commanding officer, person in charge, purser, or consignee of a
vessel, aircraft, or other transportation line shall comply
with an order of the Attorney General to take on board, guard
safely, and transport to the destination specified any alien
ordered to be removed under this Act.
``(e) Payment of Expenses of Removal.--
``(1) Costs of removal at time of arrival.--In the case of an
alien who is a stowaway or who is ordered removed either
without a hearing under section 235(a)(1) or 235(c) or pursuant
to proceedings under section 240 initiated at the time of such
alien's arrival, the owner of the vessel or aircraft (if any)
on which the alien arrived in the United States shall pay the
transportation cost of removing the alien. If removal is on a
vessel or aircraft not owned by the owner of the vessel or
aircraft on which the alien arrived in the United States, the
Attorney General may--
``(A) pay the cost from the appropriation
`Immigration and Naturalization Service--Salaries and
Expenses'; and
``(B) recover the amount of the cost in a civil
action from the owner, agent, or consignee of the
vessel or aircraft (if any) on which the alien arrived
in the United States.
``(2) Costs of removal to port of removal for aliens admitted
or permitted to land.--In the case of an alien who has been
admitted or permitted to land and is ordered removed, the cost
(if any) of removal of the alien to the port of removal shall
be at the expense of the appropriation for the enforcement of
this Act.
``(3) Costs of removal from port of removal for aliens
admitted or permitted to land.--
``(A) Through appropriation.--Except as provided in
subparagraph (B), in the case of an alien who has been
admitted or permitted to land and is ordered removed,
the cost (if any) of removal of the alien from the port
of removal shall be at the expense of the appropriation
for the enforcement of this Act.
``(B) Through owner.--
``(i) In general.--In the case of an alien
described in clause (ii), the cost of removal
of the alien from the port of removal may be
charged to any owner of the vessel, aircraft,
or other transportation line by which the alien
came to the United States.
``(ii) Aliens described.--An alien described
in this clause is an alien who--
``(I) is admitted to the United
States (other than lawfully admitted
for permanent residence) and is ordered
removed within 5 years of the date of
admission based on a ground that
existed before or at the time of
admission, or
``(II) is an alien crewman permitted
to land temporarily under section 252
and is ordered removed within 5 years
of the date of landing.
``(C) Costs of removal of certain aliens granted
voluntary departure.--In the case of an alien who has
been granted voluntary departure under section 240B and
who is financially unable to depart at the alien's own
expense and whose removal the Attorney General deems to
be in the best interest of the United States, the
expense of such removal may be paid from the
appropriation for the enforcement of this Act.
``(f) Aliens Requiring Personal Care During Removal.--
``(1) In general.--If the Attorney General believes that an
alien being removed requires personal care because of the
alien's mental or physical condition, the Attorney General may
employ a suitable person for that purpose who shall accompany
and care for the alien until the alien arrives at the final
destination.
``(2) Costs.--The costs of providing the service described in
paragraph (1) shall be defrayed in the same manner as the
expense of removing the accompanied alien is defrayed under
this section.
``(g) Places of Detention.--
``(1) In general.--The Attorney General shall arrange for
appropriate places of detention for aliens detained pending
removal or a decision on removal. When United States Government
facilities are unavailable or facilities adapted or suitably
located for detention are unavailable for rental, the Attorney
General may expend from the appropriation `Immigration and
Naturalization Service--Salaries and Expenses', without regard
to section 3709 of the Revised Statutes (41 U.S.C. 5), amounts
necessary to acquire land and to acquire, build, remodel,
repair, and operate facilities (including living quarters for
immigration officers if not otherwise available) necessary for
detention.
``(2) Detention facilities of the immigration and
naturalization service.--Prior to initiating any project for
the construction of any new detention facility for the Service,
the Commissioner shall consider the availability for purchase
or lease of any existing prison, jail, detention center, or
other comparable facility suitable for such use.
``(h) Statutory Construction.--Nothing in this section 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.''.
(b) Modification of Authority.--
(1) Section 241(i), as redesignated by section 306(a)(1), is
amended--
(A) in paragraph (3)(A) by striking ``felony and
sentenced to a term of imprisonment'' and inserting
``felony or two or more misdemeanors'', and
(B) by adding at the end the following new paragraph:
``(6) In this subsection, the term `incarceration' includes
imprisonment in a State or local prison or jail the time of
which is counted towards completion of a sentence or the
detention of an alien previously convicted of a felony or
misdemeanor who has been arrested and is being held pending
judicial action on new charges or pending transfer to Federal
custody.''.
(2) The amendments made by paragraph (1) shall apply
beginning with fiscal year 1996.
(c) Miscellaneous Conforming Amendment.--Section 212(a)(4) (8 U.S.C.
1182(a)(4)), as amended by section 621(a), is amended by striking
``241(a)(5)(B)'' each place it appears and inserting ``237(a)(5)(B)''.
SEC. 306. APPEALS FROM ORDERS OF REMOVAL (NEW SECTION 242).
(a) In General.--Section 242 (8 U.S.C. 1252) is amended--
(1) by redesignating subsection (j) as subsection (i) and by
moving such subsection and adding it at the end of section 241,
as inserted by section 305(a)(3); and
(2) by amending the remainder of section 242 to read as
follows:
``judicial review of orders of removal
``Sec. 242. (a) Applicable Provisions.--
``(1) General orders of removal.--Judicial review of a final
order of removal (other than an order of removal without a
hearing pursuant to section 235(b)(1)) is governed only by
chapter 158 of title 28 of the United States Code, except as
provided in subsection (b) and except that the court may not
order the taking of additional evidence under section 2347(c)
of such title.
``(2) Limitations on review relating to section 235(b)(1).--
Notwithstanding any other provision of law, no court shall have
jurisdiction to review--
``(A) except as provided in subsection (f), any
individual determination or to entertain any other
cause or claim arising from or relating to the
implementation or operation of an order of removal
pursuant to section 235(b)(1),
``(B) a decision by the Attorney General to invoke
the provisions of such section,
``(C) the application of such section to individual
aliens, including the determination made under section
235(b)(1)(B), or
``(D) procedures and policies adopted by the Attorney
General to implement the provisions of section
235(b)(1).
``(3) Treatment of certain decisions.--No alien shall have a
right to appeal from a decision of an immigration judge which
is based solely on a certification described in section
240(c)(1)(B).
``(b) Requirements for Orders of Removal.--With respect to review of
an order of removal under subsection (a)(1), the following requirements
apply:
``(1) Deadline.--The petition for review must be filed not
later than 30 days after the date of the final order of
removal.
``(2) Venue and forms.--The petition for review shall be
filed with the court of appeals for the judicial circuit in
which the immigration judge completed the proceedings. The
record and briefs do not have to be printed. The court of
appeals shall review the proceeding on a typewritten record and
on typewritten briefs.
``(3) Service.--
``(A) In general.--The respondent is the Attorney
General. The petition shall be served on the Attorney
General and on the officer or employee of the Service
in charge of the Service district in which the initial
proceedings under section 240 were conducted.
``(B) Stay of order.--
``(i) In general.--Except as provided in
clause (ii), service of the petition on the
officer or employee stays the removal of an
alien pending the court's decision on the
petition, unless the court orders otherwise.
``(ii) Exception.--If the alien has been
convicted of an aggravated felony, or the alien
has been ordered removed pursuant to a finding
that the alien is inadmissible under section
212, service of the petition does not stay the
removal unless the court orders otherwise.
``(4) Decision.--Except as provided in paragraph (5)(B)--
``(A) the court of appeals shall decide the petition
only on the administrative record on which the order of
removal is based,
``(B) the administrative findings of fact are
conclusive if supported by reasonable, substantial, and
probative evidence on the record considered as a whole,
and
``(C) a decision that an alien is not eligible for
admission to the United States is conclusive unless
manifestly contrary to law.
``(5) Treatment of nationality claims.--
``(A) Court determination if no issue of fact.--If
the petitioner claims to be a national of the United
States and the court of appeals finds from the
pleadings and affidavits that no genuine issue of
material fact about the petitioner's nationality is
presented, the court shall decide the nationality
claim.
``(B) Transfer if issue of fact.--If the petitioner
claims to be a national of the United States and the
court of appeals finds that a genuine issue of material
fact about the petitioner's nationality is presented,
the court shall transfer the proceeding to the district
court of the United States for the judicial district in
which the petitioner resides for a new hearing on the
nationality claim and a decision on that claim as if an
action had been brought in the district court under
section 2201 of title 28, United States Code.
``(C) Limitation on determination.--The petitioner
may have such nationality claim decided only as
provided in this paragraph.
``(6) Consolidation with review of motions to reopen or
reconsider.--When a petitioner seeks review of an order under
this section, any review sought of a motion to reopen or
reconsider the order shall be consolidated with the review of
the order.
``(7) Challenge to validity of orders in certain criminal
proceedings.--
``(A) In general.--If the validity of an order of
removal has not been judicially decided, a defendant in
a criminal proceeding charged with violating section
243(a) may challenge the validity of the order in the
criminal proceeding only by filing a separate motion
before trial. The district court, without a jury, shall
decide the motion before trial.
``(B) Claims of united states nationality.--If the
defendant claims in the motion to be a national of the
United States and the district court finds that--
``(i) no genuine issue of material fact about
the defendant's nationality is presented, the
court shall decide the motion only on the
administrative record on which the removal
order is based and the administrative findings
of fact are conclusive if supported by
reasonable, substantial, and probative evidence
on the record considered as a whole; or
``(ii) a genuine issue of material fact about
the defendant's nationality is presented, the
court shall hold a new hearing on the
nationality claim and decide that claim as if
an action had been brought under section 2201
of title 28, United States Code.
The defendant may have such nationality claim decided
only as provided in this subparagraph.
``(C) Consequence of invalidation.--If the district
court rules that the removal order is invalid, the
court shall dismiss the indictment for violation of
section 243(a). The United States Government may appeal
the dismissal to the court of appeals for the
appropriate circuit within 30 days after the date of
the dismissal.
``(D) Limitation on filing petitions for review.--The
defendant in a criminal proceeding under section 243(a)
may not file a petition for review under subsection (a)
during the criminal proceeding.
``(8) Construction.--This subsection--
``(A) does not prevent the Attorney General, after a
final order of removal has been issued, from detaining
the alien under section 241(a);
``(B) does not relieve the alien from complying with
section 241(a)(4) and section 243(g); and
``(C) except as provided in paragraph (3), does not
require the Attorney General to defer removal of the
alien.
``(c) Requirements for Petition.--A petition for review or for habeas
corpus of an order of removal shall state whether a court has upheld
the validity of the order, and, if so, shall state the name of the
court, the date of the court's ruling, and the kind of proceeding.
``(d) Review of Final Orders.--A court may review a final order of
removal only if--
``(1) the alien has exhausted all administrative remedies
available to the alien as of right, and
``(2) 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.
``(e) Limited Review for Non-Permanent Residents Convicted of
Aggravated Felonies.--
``(1) In general.--A petition for review filed by an alien
against whom a final order of removal has been issued under
section 238 may challenge only whether--
``(A) the alien is the alien described in the order,
``(B) the alien is an alien described in section
238(b)(2) and has been convicted after entry into the
United States of an aggravated felony, and
``(C) proceedings against the alien complied with
section 238(b)(4).
``(2) Limited jurisdiction.--A court reviewing the petition
has jurisdiction only to review the issues described in
paragraph (1).
``(f) Judicial Review of Orders Under Section 235(b)(1).--
``(1) Application.--The provisions of this subsection apply
with respect to judicial review of orders of removal effected
under section 235(b)(1).
``(2) Limitations on relief.--Regardless of the nature of the
action or claim and regardless of the identity of the party or
parties bringing the action, no court shall have jurisdiction
or authority to enter declaratory, injunctive, or other
equitable relief not specifically authorized in this
subsection, or to certify a class under Rule 23 of the Federal
Rules of Civil Procedure.
``(3) Limitation to habeas corpus.--Judicial review of any
matter, cause, claim, or individual determination made or
arising under or pertaining to section 235(b)(1) shall only be
available in habeas corpus proceedings, and shall be limited to
determinations of--
``(A) whether the petitioner is an alien,
``(B) whether the petitioner was ordered removed
under such section, and
``(C) whether the petitioner can prove by a
preponderance of the evidence that the petitioner is an
alien lawfully admitted for permanent residence and is
entitled to such further inquiry as prescribed by the
Attorney General pursuant to section 235(b)(1)(C).
``(4) Decision.--In any case where the court determines that
the petitioner--
``(A) is an alien who was not ordered removed under
section 235(b)(1), or
``(B) has demonstrated by a preponderance of the
evidence that the alien is a lawful permanent resident,
the court may order no remedy or relief other than to require
that the petitioner be provided a hearing in accordance with
section 240. Any alien who is provided a hearing under section
240 pursuant to this paragraph may thereafter obtain judicial
review of any resulting final order of removal pursuant to
subsection (a)(1).
``(5) Scope of inquiry.--In determining whether an alien has
been ordered removed under section 235(b)(1), the court's
inquiry shall be limited to whether such an order in fact was
issued and whether it relates to the petitioner. There shall be
no review of whether the alien is actually inadmissible or
entitled to any relief from removal.
``(g) 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 of
chapter 4 of title II, as amended by the Immigration in the National
Interest Act of 1995, other than with respect to the application of
such provisions to an individual alien against whom proceedings under
such chapter have been initiated.''.
(b) Repeal of Section 106.--Section 106 (8 U.S.C. 1105a) is repealed.
SEC. 307. PENALTIES RELATING TO REMOVAL (REVISED SECTION 243).
(a) In General.--Section 243 (8 U.S.C. 1253) is amended to read as
follows:
``penalties related to removal
``Sec. 243. (a) Penalty for Failure to Depart.--
``(1) In general.--Any alien against whom a final order of
removal is outstanding by reason of being a member of any of
the classes described in section 237(a), who--
``(A) willfully fails or refuses to depart from the
United States within a period of 90 days from the date
of the final order of removal under administrative
processes, or if judicial review is had, then from the
date of the final order of the court,
``(B) willfully fails or refuses to make timely
application in good faith for travel or other documents
necessary to the alien's departure,
``(C) connives or conspires, or takes any other
action, designed to prevent or hamper or with the
purpose of preventing or hampering the alien's
departure pursuant to such, or
``(D) willfully fails or refuses to present himself
or herself for removal at the time and place required
by the Attorney General pursuant to such order,
shall be fined under title 18, United States Code, or
imprisoned not more than four years (or 10 years if the alien
is a member of any of the classes described in paragraph
(1)(E), (2), (3), or (4) of section 237(a)), or both.
``(2) Exception.--It is not a violation of paragraph (1) to
take any proper steps for the purpose of securing cancellation
of or exemption from such order of removal or for the purpose
of securing the alien's release from incarceration or custody.
``(3) Suspension.--The court may for good cause suspend the
sentence of an alien under this subsection and order the
alien's release under such conditions as the court may
prescribe. In determining whether good cause has been shown to
justify releasing the alien, the court shall take into account
such factors as--
``(A) the age, health, and period of detention of the
alien;
``(B) the effect of the alien's release upon the
national security and public peace or safety;
``(C) the likelihood of the alien's resuming or
following a course of conduct which made or would make
the alien deportable;
``(D) the character of the efforts made by such alien
himself and by representatives of the country or
countries to which the alien's removal is directed to
expedite the alien's departure from the United States;
``(E) the reason for the inability of the Government
of the United States to secure passports, other travel
documents, or removal facilities from the country or
countries to which the alien has been ordered removed;
and
``(F) the eligibility of the alien for discretionary
relief under the immigration laws.
``(b) Willful Failure to Comply with Terms of Release Under
Supervision.--An alien who shall willfully fail to comply with
regulations or requirements issued pursuant to section 241(a)(3) or
knowingly give false information in response to an inquiry under such
section shall be fined not more than $1,000 or imprisoned for not more
than one year, or both.
``(c) Penalties Relating to Vessels and Aircraft.--
``(1) Civil penalties.--
``(A) Failure to carry out certain orders.--If the
Attorney General is satisfied that a person has
violated subsection (d) or (e) of section 241, the
person shall pay to the Commissioner the sum of $2,000
for each violation.
``(B) Failure to remove alien stowaways.--If the
Attorney General is satisfied that a person has failed
to remove an alien stowaway as required under section
241(d)(2), the person shall pay to the Commissioner the
sum of $5,000 for each alien stowaway not removed.
``(C) No compromise.--The Attorney General may not
compromise the amount of such penalty under this
paragraph.
``(2) Clearing vessels and aircraft.--
``(A) Clearance before decision on liability.--A
vessel or aircraft may be granted clearance before a
decision on liability is made under paragraph (1) only
if a bond approved by the Attorney General or an amount
sufficient to pay the civil penalty is deposited with
the Commissioner.
``(B) Prohibition on clearance while penalty
unpaid.--A vessel or aircraft may not be granted
clearance if a civil penalty imposed under paragraph
(1) is not paid.
``(d) Discontinuing Granting Visas to Nationals of Country Denying or
Delaying Accepting Alien.--On being notified by the Attorney General
that the government of a foreign country denies or unreasonably delays
accepting an alien who is a citizen, subject, national, or resident of
that country after the Attorney General asks whether the government
will accept the alien under this section, the Secretary of State shall
order consular officers in that foreign country to discontinue granting
immigrant visas or nonimmigrant visas, or both, to citizens, subjects,
nationals, and residents of that country until the Attorney General
notifies the Secretary that the country has accepted the alien.''.
SEC. 308. REDESIGNATION AND REORGANIZATION OF OTHER PROVISIONS;
ADDITIONAL CONFORMING AMENDMENTS.
(a) Conforming Amendment to Table of Contents; Overview of
Reorganized Chapters.--The table of contents, as amended by section
851(d)(1), is amended--
(1) by striking the item relating to section 106, and
(2) by striking the item relating to chapter 4 of title II
and all that follows through the item relating to section 244A
and inserting the following:
``chapter 4--inspection, apprehension, examination, exclusion, and
removal
``Sec. 231. Lists of alien and citizen passengers arriving or
departing; record of resident aliens and citizens leaving permanently
for foreign country.
``Sec. 232. Detention of aliens for physical and mental examination.
``Sec. 233. Entry through or from foreign contiguous territory and
adjacent islands; landing stations.
``Sec. 234. Designation of ports of entry for aliens arriving by civil
aircraft.
``Sec. 235. Inspection by immigration officers; expedited removal of
inadmissible arriving aliens; referral for hearing.
``Sec. 236. Apprehension and detention of aliens not lawfully in the
United States.
``Sec. 237. General classes of deportable aliens.
``Sec. 238. Expedited removal of aliens convicted of committing
aggravated felonies.
``Sec. 239. Initiation of removal proceedings.
``Sec. 240. Removal proceedings.
``Sec. 240A. Cancellation of removal; adjustment of status.
``Sec. 240B. Voluntary departure.
``Sec. 240C. Records of admission.
``Sec. 241. Detention and removal of aliens ordered removed.
``Sec. 242. Judicial review of orders of removal.
``Sec. 243. Penalties relating to removal.
``Sec. 244. Temporary protected status.
``chapter 5--adjustment and change of status''
(b) Reorganization of Other Provisions.--Chapters 4 and 5 of title II
are amended as follows:
(1) Amending chapter heading.--Amend the heading for chapter
4 of title II to read as follows:
``Chapter 4--Inspection, Apprehension, Examination, Exclusion, and
Removal''
(2) Redesignating section 232 as section 232(a).--Amend
section 232 (8 U.S.C. 1222)--
(A) by inserting ``(a) Detention of Aliens.--'' after
``Sec. 232.'', and
(B) by amending the section heading to read as
follows:
``detention of aliens for physical and mental examination''.
(3) Redesignating section 234 as section 232(b).--Amend
section 234 (8 U.S.C. 1224)--
(A) by striking the heading,
(B) by striking ``Sec. 234.'' and inserting the
following: ``(b) Physical and Mental Examination.--'',
and
(C) by moving such provision to the end of section
232.
(4) Redesignating section 238 as section 233.--Redesignate
section 238 (8 U.S.C. 1228) as section 233 and move the section
to immediately follow section 232.
(5) Redesignating section 242a as section 238.--Redesignate
section 242A as section 238, strike ``deportation'' in its
heading and insert ``removal'', and move the section to
immediately follow section 237 (as redesignated by section
305(a)(2)).
(6) Striking section 242b.--Strike section 242B (8 U.S.C.
1252b).
(7) Striking section 244 and redesignating section 244a as
section 244.--Strike section 244 and redesignate section 244A
as section 244.
(8) Amending chapter heading.--Amend the heading for chapter
5 of title II to read as follows:
``Chapter 5--Adjustment and Change of Status''.
(c) Additional Conforming Amendments.--
(1) Expedited procedures for aggravated felons (former
section 242a).--Section 238 (which, previous to redesignation
under section 308(b)(5), was section 242A) is amended--
(A) in subsection (a)(1), by striking ``section 242''
and inserting ``section 240'';
(B) in subsection (a)(2), by striking ``section
242(a)(2)'' and inserting ``section 236(c)''; and
(C) in subsection (b)(1), by striking ``section
241(a)(2)(A)(iii)'' and inserting ``section
237(a)(2)(A)(iii)''.
(2) Treatment of certain helpless aliens.--
(A) Certification of helpless aliens.--Section 232,
as amended by section 308(b)(2), is further amended by
adding at the end the following new subsection:
``(c) Certification of Certain Helpless Aliens.--If an examining
medical officer determines that an alien arriving in the United States
is inadmissible, is helpless from sickness, mental or physical
disability, or infancy, and is accompanied by another alien whose
protection or guardianship may be required, the officer may certify
such fact for purposes of applying section 212(a)(10)(B) with respect
to the other alien.''.
(B) Ground of inadmissibility for protection and
guardianship of aliens denied admission for health or
infancy.--Subparagraph (B) of section 212(a)(10) (8
U.S.C. 1182(a)(10)), as redesignated by section
301(a)(1), is amended to read as follows:
``(B) Guardian required to accompany helpless
alien.--Any alien--
``(i) who is accompanying another alien who
is inadmissible and who is certified to be
helpless from sickness, mental or physical
disability, or infancy pursuant to section
232(c), and
``(ii) whose protection or guardianship is
determined to be required by the alien
described in clause (i),
is inadmissible.''.
(3) Contingent consideration in relation to removal of
aliens.--Section 273(a) (8 U.S.C. 1323(a)) is amended--
(A) by inserting ``(1)'' after ``(a)'', and
(B) by adding at the end the following new paragraph:
``(2) It is unlawful for an owner, agent, master, commanding officer,
person in charge, purser, or consignee of a vessel or aircraft who is
bringing an alien (except an alien crewmember) to the United States to
take any consideration to be kept or returned contingent on whether an
alien is admitted to, or ordered removed from, the United States.''.
(4) Clarification.--(A) Section 238(a)(1), which, previous to
redesignation under section 308(b)(5), was section 242A(a)(1),
is amended by adding at the end the following: ``Nothing in
this section 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.''.
(B) Section 225 of the Immigration and Nationality Technical
Corrections Act of 1994 (Public Law 103-416), as amended by
section 851(b)(15), is amended by striking ``and nothing in''
and all that follows up to ``shall''.
(d) Additional Conforming Amendments Relating to Exclusion and
Inadmissibility.--
(1) Section 212.--Section 212 (8 U.S.C. 1182(a)) is amended--
(A) in the heading, by striking ``excluded from'' and
inserting ``ineligible for'';
(B) in the matter in subsection (a) before paragraph
(1), by striking all that follows ``(a)'' and inserting
the following: ``Classes of Aliens Ineligible for Visas
or Admission.--Except as otherwise provided in this
Act, aliens who are inadmissible under the following
paragraphs are ineligible to receive visas and
ineligible to be admitted to the United States:'';
(C) in subsection (a), by striking ``is excludable''
and inserting ``is inadmissible'' each place it
appears;
(D) in subsections (a)(5)(C), (d)(1), (k), by
striking ``exclusion'' and inserting
``inadmissibility'';
(E) in subsections (b), (d)(3), (h)(1)(A)(i), and
(k), by striking ``excludable'' each place it appears
and inserting ``inadmissible'';
(F) in subsection (b)(2), by striking ``or ineligible
for entry'';
(G) in subsection (d)(7), by striking ``excluded
from'' and inserting ``denied''; and
(H) in subsection (h)(1)(B), by striking
``exclusion'' and inserting ``denial of admission''.
(2) Section 241.--Section 241 (8 U.S.C. 1251), before
redesignation as section 237 by section 305(a)(2), is amended--
(A) in subsection (a)(1)(H), by striking
``excludable'' and inserting ``inadmissible'';
(B) in subsection (a)(4)(C)(ii), by striking
``excludability'' and inserting ``inadmissibility'';
and
(C) in subsection (c), by striking ``exclusion'' and
inserting ``inadmissibility''.
(3) Other general references.--The following provisions are
amended by striking ``excludability'' and ``excludable'' each
place each appears and inserting ``inadmissibility'' and
``inadmissible'', respectively:
(A) Sections 101(f)(3), 213, 234 (before
redesignation by section 308(b)), 241(a)(1) (before
redesignation by section 305(a)(2)), 272(a), 277,
286(h)(2)(A)(v), and 286(h)(2)(A)(vi).
(B) Section 601(c) of the Immigration Act of 1990.
(C) Section 128 of the Foreign Relations
Authorization Act, Fiscal Years 1992 and 1993 (Public
Law 102-138).
(D) Section 1073 of the National Defense
Authorization Act for Fiscal Year 1995 (Public Law 103-
337).
(E) Section 221 of the Immigration and Nationality
Technical Corrections Act of 1994 (Public Law 103-416).
(4) Related terms.--
(A) Section 101(a)(17) (8 U.S.C. 1101(a)(17)) is
amended by striking ``or expulsion'' and inserting
``expulsion, or removal''.
(B) Section 102 (8 U.S.C. 1102) is amended by
striking ``exclusion or deportation'' and inserting
``removal''.
(C) Section 103(c)(2) (8 U.S.C. 1103(c)(2)) is
amended by striking ``been excluded or deported'' and
inserting ``not been admitted or have been removed''.
(D) Section 206 (8 U.S.C. 1156) is amended by
striking ``excluded from admission to the United States
and deported'' and inserting ``denied admission to the
United States and removed''.
(E) Section 216(f) (8 U.S.C. 1186a) is amended by
striking ``exclusion'' and inserting
``inadmissibility''.
(F) Section 217 (8 U.S.C. 1187) is amended by
striking ``excluded from admission'' and inserting
``denied admission at the time of arrival'' each place
it appears.
(G) Section 221(f) (8 U.S.C. 1201) is amended by
striking ``exclude'' and inserting ``deny admission
to''.
(H) Section 232(a) (8 U.S.C. 1222(a)), as
redesignated by subsection (b)(2), is amended by
striking ``excluded by'' and ``the excluded classes''
and inserting ``inadmissible under'' and ``inadmissible
classes'', respectively.
(I)(i) Section 272 (8 U.S.C. 1322) is amended--
(I) by striking ``exclusion'' in the heading
and inserting ``denial of admission'',
(II) in subsection (a), by striking
``excluding condition'' and inserting
``condition causing inadmissibility'', and
(III) in subsection (c), by striking
``excluding''.
(ii) The item in the table of contents relating to
such section is amended by striking ``exclusion'' and
inserting ``denial of admission''.
(J) Section 276(a) (8 U.S.C. 1326) is amended--
(i) in paragraph (1), by striking ``deported
or excluded and deported'' and inserting
``denied admission or removed'', and
(ii) in paragraph (2)(B), by striking
``excluded and deported'' and inserting
``denied admission and removed''.
(K) Section 286(h)(2)(A)(vi) (8 U.S.C.
1356(h)(2)(A)(vi)) is amended by striking ``exclusion''
each place it appears and inserting ``removal''.
(L) Section 287 (8 U.S.C. 1357) is amended--
(i) in subsection (a), by striking ``or
expulsion'' each place it appears and inserting
``expulsion, or removal'', and
(ii) in subsection (c), by striking
``exclusion from'' and inserting ``denial of
admission to''.
(M) Section 290(a) (8 U.S.C. 1360(a)) is amended by
striking ``admitted to the United States, or excluded
therefrom'' each place it appears and inserting
``admitted or denied admission to the United States''.
(N) Section 291 (8 U.S.C. 1361) is amended by
striking ``subject to exclusion'' and inserting
``inadmissible'' each place it appears.
(O) Section 292 (8 U.S.C. 1362) is amended by
striking ``exclusion or deportation'' each place it
appears and inserting ``removal''.
(P) Section 360 (8 U.S.C. 1503) is amended--
(i) in subsection (a), by striking
``exclusion'' each place it appears and
inserting ``removal'', and
(ii) in subsection (c), by striking
``excluded from'' and inserting ``denied''.
(Q) Section 301(a)(1) of the Immigration Act of 1990
is amended by striking ``exclusion'' and inserting
``inadmissibility''.
(R) Section 401(c) of the Refugee Act of 1980 is
amended by striking ``deportation or exclusion'' and
inserting ``removal''.
(S) Section 501(e)(2) of the Refugee Education
Assistance Act of 1980 (Public Law 96-422) is amended--
(i) by striking ``exclusion or deportation''
each place it appears and inserting
``removal'', and
(ii) by striking ``deportation or exclusion''
each place it appears and inserting
``removal''.
(T) Section 4113(c) of title 18, United States Code,
is amended by striking ``exclusion and deportation''
and inserting ``removal''.
(e) Revision of Terminology Relating to Deportation.--
(1) Each of the following is amended by striking
``deportation'' each place it appears and inserting
``removal'':
(A) Subparagraphs (A)(iii)(II), (A)(iv)(II), and
(B)(iii)(II) of section 204(a)(1) (8 U.S.C.
1154(a)(1)).
(B) Section 212(d)(1) (8 U.S.C. 1182(d)(1)).
(C) Section 212(d)(11) (8 U.S.C. 1182(d)(11)).
(D) Section 214(k)(4)(C) (8 U.S.C. 1184(k)(4)(C)), as
redesignated by section 851(a)(3)(A).
(E) Section 241(a)(1)(H) (8 U.S.C. 1251(a)(1)(H)),
before redesignation as section 237 by section
305(a)(2).
(F) Section 242A (8 U.S.C. 1252a), before
redesignation as section 238 by subsection (b)(5).
(G) Subsections (a)(3) and (b)(5)(B) of section 244A
(8 U.S.C. 1254a), before redesignation as section 244
by subsection (b)(7).
(H) Section 246(a) (8 U.S.C. 1256(a)).
(I) Section 254 (8 U.S.C. 1284).
(J) Section 263(a)(4) (8 U.S.C. 1303(a)(4)).
(K) Section 276(b) (8 U.S.C. 1326(b)).
(L) Section 286(h)(2)(A)(v) (8 U.S.C.
1356(h)(2)(A)(v)).
(M) Section 291 (8 U.S.C. 1361).
(N) Section 318 (8 U.S.C. 1429).
(O) Section 130005(a) of the Violent Crime Control
and Law Enforcement Act of 1994 (Public Law 103-322).
(P) Section 4113(b) of title 18, United States Code.
(2) Each of the following is amended by striking ``deported''
each place it appears and inserting ``removed'':
(A) Section 212(d)(7) (8 U.S.C. 1182(d)(7)).
(B) Section 214(d) (8 U.S.C. 1184(d)).
(C) Section 241(a) (8 U.S.C. 1251(a)), before
redesignation as section 237 by section 305(a)(2).
(D) Section 242A(c)(2)(D)(iv) (8 U.S.C.
1252a(c)(2)(D)(iv)), as amended by section 851(b)(14)
but before redesignation as section 238 by subsection
(b)(5).
(E) Section 252(b) (8 U.S.C. 1282(b)).
(F) Section 254 (8 U.S.C. 1284).
(G) Subsections (b) and (c) of section 266 (8 U.S.C.
1306).
(H) Section 301(a)(1) of the Immigration Act of 1990.
(I) Section 4113 of title 18, United States Code.
(3) Section 101(g) (8 U.S.C. 1101(g)) is amended by inserting
``or removed'' after ``deported'' each place it appears.
(4) Section 103(c)(2) (8 U.S.C. 1103(c)(2)) is amended by
striking ``suspension of deportation'' and inserting
``cancellation of removal''.
(5) Section 201(b)(1)(D) (8 U.S.C. 1151(b)(1)(D)) is amended
by striking ``deportation is suspended'' and inserting
``removal is canceled''.
(6) Section 212(l)(2)(B) (8 U.S.C. 1182(l)(2)(B)) is amended
by striking ``deportation against'' and inserting ``removal
of''.
(7) Subsections (b)(2), (c)(2)(B), (c)(3)(D), (c)(4)(A), and
(d)(2)(C) of section 216 (8 U.S.C. 1186a) are each amended by
striking ``deportation'', ``deportation'', ``deport'', and
``deported'' each place each appears and inserting ``removal'',
``removal'', ``remove'', and ``removed'', respectively.
(8) Subsections (b)(2), (c)(2)(B), (c)(3)(D), and (d)(2)(C)
of section 216A (8 U.S.C. 1186b) are each amended by striking
``deportation'', ``deportation'', ``deport'', and ``deported''
and inserting ``removal'', ``removal'', ``remove'', and
``removed'', respectively.
(9) Section 217(b)(2) (8 U.S.C. 1187(b)(2)) is amended by
striking ``deportation against'' and inserting ``removal of''.
(10) Section 242A (8 U.S.C. 1252a), before redesignation as
section 238 by subsection (b)(6), is amended, in the headings
to various subdivisions, by striking ``Deportation'' and
``deportation'' and inserting ``Removal'' and ``removal'',
respectively.
(11) Section 244A(a)(1)(A) (8 U.S.C. 1254a(a)(1)(A)), before
redesignation as section 244 by subsection (b)(8), is amended--
(A) in subsection (a)(1)(A), by striking ``deport''
and inserting ``remove'', and
(B) in subsection (e), by striking ``Suspension of
Deportation'' and inserting ``Cancellation of
Removal''.
(12) Section 254 (8 U.S.C. 1284) is amended by striking
``deport'' each place it appears and inserting ``remove''.
(13) Section 273(d) (8 U.S.C. 1323(d)) is repealed.
(14)(A) Section 276 (8 U.S.C. 1326) is amended by striking
``deported'' and inserting ``removed''.
(B) The item in the table of contents relating to such
section is amended by striking ``deported'' and inserting
``removed''.
(15) Section 318 (8 U.S.C. 1429) is amended by striking
``suspending'' and inserting ``canceling''.
(16) Section 301(a) of the Immigration Act of 1990 is amended
by striking ``Deportation'' and inserting ``Removal''.
(17) The heading of section 130005 of the Violent Crime
Control and Law Enforcement Act of 1994 (Public Law 103-322) is
amended by striking ``deportation'' and inserting
``removal''.
(18) Section 9 of the Peace Corps Act (22 U.S.C. 2508) is
amended by striking ``deported'' and all that follows through
``Deportation'' and inserting ``removed pursuant to chapter 4
of title II of the Immigration and Nationality Act''.
(19) Section 8(c) of the Foreign Agents Registration Act (22
U.S.C. 618(c)) is amended by striking ``deportation'' and all
that follows and inserting ``removal pursuant to chapter 4 of
title II of the Immigration and Nationality Act.''.
(f) Revision of References to Entry.--
(1) The following provisions are amended by striking
``entry'' and inserting ``admission'' each place it appears:
(A) Section 101(a)(15)(K) (8 U.S.C. 1101(a)(15)(K)).
(B) Section 101(a)(30) (8 U.S.C. 1101(a)(30)).
(C) Section 212(a)(2)(D) (8 U.S.C. 1182(a)(2)(D)).
(D) Section 212(a)(6)(C)(i) (8 U.S.C.
1182(a)(6)(C)(i)).
(E) Section 212(h)(1)(A)(i) (8 U.S.C.
1182(h)(1)(A)(i)).
(F) Section 212(j)(1)(D) (8 U.S.C. 1182(j)(1)(D)).
(G) Section 214(c)(2)(A) (8 U.S.C. 1184(c)(2)(A)).
(H) Section 214(d) (8 U.S.C. 1184(d)).
(I) Section 216(b)(1)(A)(i) (8 U.S.C.
1186a(b)(1)(A)(i)).
(J) Section 216(d)(1)(A)(i)(III) (8 U.S.C.
1186a(d)(1)(A)(i)(III)).
(K) Subsection (b) of section 240 (8 U.S.C. 1230),
before redesignation as section 240C by section
304(a)(2).
(L) Subsection (a)(1)(G) of section 241 (8 U.S.C.
1251), before redesignation as section 237 by section
305(a)(2).
(M) Subsection (a)(1)(H) of section 241 (8 U.S.C.
1251), before redesignation as section 237 by section
305(a)(2), other than the last time it appears.
(N) Paragraphs (2) and (4) of subsection (a) of
section 241 (8 U.S.C. 1251), before redesignation as
section 237 by section 305(a)(2).
(O) Section 245(e)(3) (8 U.S.C. 1255(e)(3)).
(P) Section 247(a) (8 U.S.C. 1257(a)).
(Q) Section 601(c)(2) of the Immigration Act of 1990.
(2) The following provisions are amended by striking
``enter'' and inserting ``be admitted'':
(A) Section 204(e) (8 U.S.C. 1154(e)).
(B) Section 221(h) (8 U.S.C. 1201(h)).
(C) Section 245(e)(2) (8 U.S.C. 1255(e)(2)).
(3) The following provisions are amended by striking
``enters'' and inserting ``is admitted to'':
(A) Section 212(j)(1)(D)(ii) (8 U.S.C. 1154(e)).
(B) Section 214(c)(5)(B) (8 U.S.C. 1184(c)(5)(B)).
(4) Subsection (a) of section 238 (8 U.S.C. 1228), before
redesignation as section 233 by section 308(b)(4), is amended
by striking ``entry and inspection'' and inserting ``inspection
and admission''.
(5) Subsection (a)(1)(H)(ii) of section 241 (8 U.S.C. 1251),
before redesignation as section 237 by section 305(a)(2), is
amended by striking ``at entry''.
(6) Section 7 of the Central Intelligence Agency Act of 1949
(50 U.S.C. 403h) is amended by striking ``that the entry'',
``given entry into'', and ``entering'' and inserting ``that the
admission'', ``admitted to'', and ``admitted to''.
(7) Section 4 of the Atomic Weapons and Special Nuclear
Materials Rewards Act (50 U.S.C. 47c) is amended by striking
``entry'' and inserting ``admission''.
(g) Conforming References to Reorganized Sections.--
(1) References to sections 232, 234, 238, 239, 240, 241,
242a, and 244a.--Any reference in law in effect on the day
before the date of the enactment of this Act to section 232,
234, 238, 239, 240, 241, 242A, or 244A of the Immigration and
Nationality Act (or a subdivision of such section) is deemed,
as of the title III-A effective date, to refer to section
232(a), 232(b), 233, 234, 234A, 237, 238, or 244 of such Act
(or the corresponding subdivision of such section), as
redesignated by this subtitle. Any reference in law to section
241 (or a subdivision of such section) of the Immigration and
Nationality Act in an amendment made by a subsequent subtitle
of this title is deemed a reference (as of the title III-A
effective date) to section 237 (or the corresponding
subdivision of such section), as redesignated by this subtitle.
(2) References to section 106.--
(A) Sections 242A(b)(3) and 242A(c)(3)(A)(ii) (8
U.S.C. 1252a(b)(3), 1252a(c)(3)(A)(ii)), as amended by
section 851(b)(14) but before redesignation as section
238 by subsection (b)(5), are each amended by striking
``106'' and inserting ``242''.
(B) Sections 210(e)(3)(A) and 245A(f)(4)(A) (8 U.S.C.
1160(e)(3)(A), 1255a(f)(4)(A)) are amended by inserting
``(as in effect before October 1, 1996)'' after
``106''.
(C) Section 242A(c)(3)(A)(iii) (8 U.S.C.
1252a(c)(3)(A)(iii)), as amended by section 851(b)(14)
but before redesignation as section 238 by subsection
(b)(5), is amended by striking ``106(a)(1)'' and
inserting ``242(b)(1)''.
(3) References to section 236.--
(A) Sections 205 and 209(a)(1) (8 U.S.C. 1155,
1159(a)(1)) are each amended by striking ``236'' and
inserting ``240''.
(B) Section 4113(c) of title 18, United States Code,
is amended by striking ``1226 of title 8, United States
Code'' and inserting ``240 of the Immigration and
Nationality Act''.
(4) References to section 237.--
(A) Section 209(a)(1) (8 U.S.C. 1159(a)(1)) is
amended by striking ``237'' and inserting ``241''.
(B) Section 212(d)(7) (8 U.S.C. 1182(d)(7)) is
amended by striking ``237(a)'' and inserting
``241(c)''.
(C) Section 280(a) (8 U.S.C. 1330(a)) is amended by
striking ``237, 239, 243'' and inserting ``234,
243(c)(2)''.
(5) References to section 242.--
(A)(i) Sections 214(d), 252(b), and 287(f)(1) (8
U.S.C. 1184(d), 1282(b), 1357(f)(1)) are each amended
by striking ``242'' and inserting ``240''.
(ii) Subsection (c)(4) of section 242A (8 U.S.C.
1252a), as amended by section 851(b)(14) but before
redesignation as section 238 by subsection (b)(5), are
each amended by striking ``242'' and inserting ``240''.
(iii) Section 245A(a)(1)(B) (8 U.S.C. 1255a(a)(1)(B))
is amended by inserting ``(as in effect before October
1, 1996)'' after ``242''.
(iv) Section 4113 of title 18, United States Code, is
amended--
(I) in subsection (a), by striking ``section
1252(b) or section 1254(e) of title 8, United
States Code,'' and inserting ``section 240B of
the Immigration and Nationality Act''; and
(II) in subsection (b), by striking ``section
1252 of title 8, United States Code,'' and
inserting ``section 240 of the Immigration and
Nationality Act''.
(B) Section 130002(a) of Public Law 103-322, as
amended by section 361(a), is amended by striking
``242(a)(3)(A)'' and inserting ``236(d)''.
(C) Section 242A(b)(1) (8 U.S.C. 1252a(b)(1)), before
redesignation as section 238 by section 308(b)(5), is
amended by striking ``242(b)'' and inserting ``240''.
(D) Section 242A(c)(2)(D)(ii) (8 U.S.C.
1252a(c)(2)(D)(ii)), as amended by section 851(b)(14)
but before redesignation as section 238 by subsection
(b)(5), is amended by striking ``242(b)'' and inserting
``240''.
(E) Section 1821(e) of title 28, United States Code,
is amended by striking ``242(b)'' and inserting
``240''.
(F) Section 130007(a) of Public Law 103-322 is
amended by striking ``242(i)'' and inserting
``239(d)''.
(G) Section 20301(c) of Public Law 103-322 is amended
by striking ``242(j)(5)'' and ``242(j)'' and inserting
``241(h)(5)'' and ``241(h)'', respectively.
(6) References to section 242b.--
(A) Section 303(d)(2) of the Immigration Act of 1990
is amended by striking ``242B'' and inserting
``240(b)(5)''.
(B) Section 545(g)(1)(B) of the Immigration Act of
1990 is amended by striking ``242B(a)(4)'' and
inserting ``239(a)(4)''.
(7) References to section 243.--
(A) Section 214(d) (8 U.S.C. 1184(d)) is amended by
striking ``243'' and inserting ``241''.
(B)(i) Section 315(c) of the Immigration Reform and
Control Act of 1986 is amended by striking ``243(g)''
and ``1253(g)''and inserting ``243(d)'' and ``1253(d)''
respectively.
(ii) Section 702(b) of the Departments of Commerce,
Justice, and State, the Judiciary, and Related Agencies
Appropriations Act, 1988 is amended by striking
``243(g)'' and inserting ``243(d)''.
(iii) Section 903(b) of Public Law 100-204 is amended
by striking ``243(g)'' and inserting ``243(d)''.
(C)(i) Section 6(f)(2)(F) of the Food Stamp Act of
1977 (7 U.S.C. 2015(f)(2)(F)) is amended by striking
``243(h)'' and inserting ``241(b)(3)''.
(ii) Section 214(a)(5) of the Housing and Community
Development Act of 1980 (42 U.S.C. 1436a(a)(5)) is
amended by striking ``243(h)'' and inserting
``241(b)(3)''.
(D)(i) Subsection (c)(2)(B)(ii) of section 244A (8
U.S.C. 1254a), before redesignated as section 244 by
section 308(b)(7), is amended by striking ``243(h)(2)''
and inserting ``208(b)(2)(A)''.
(ii) Section 301(e)(2) of the Immigration Act of 1990
is amended by striking ``243(h)(2)'' and inserting
``208(b)(2)(A)''.
(E) Section 316(f) (8 U.S.C. 1427(f)) is amended by
striking ``subparagraphs (A) through (D) of paragraph
243(h)(2)'' and inserting ``clauses (i) through (v) of
section 208(b)(2)(A)''.
(8) References to section 244.--
(A)(i) Section 201(b)(1)(D) (8 U.S.C. 1151(b)(1)(D))
and subsection (e) of section 244A (8 U.S.C. 1254a),
before redesignation as section 244 by section
308(b)(7), are each amended by striking ``244(a)'' and
inserting ``240A(a)''.
(ii) Section 304(c)(1)(B) of the Miscellaneous and
Technical Immigration and Naturalization Amendments of
1991 (Public Law 102-232) is amended by striking
``244(a)'' and inserting ``240A(a)''.
(B) Section 304(c)(1)(B) of the Miscellaneous and
Technical Immigration and Naturalization Amendments of
1991 (Public Law 102-232) is amended by striking
``244(b)(2)'' and inserting ``240A(b)(2)''.
(C) Section 364(a)(2) of this Act is amended by
striking ``244(a)(3)'' and inserting ``240A(a)(3)''.
(9) References to chapter 5.--
(A) Sections 266(b), 266(c), and 291 (8 U.S.C.
1306(b), 1306(c), 1361) are each amended by striking
``chapter 5'' and inserting ``chapter 4''.
(B) Section 6(b) of the Act of August 1, 1956 (50
U.S.C. 855(b)) is amended by striking ``chapter 5,
title II, of the Immigration and Nationality Act (66
Stat. 163)'' and inserting ``chapter 4 of title II of
the Immigration and Nationality Act''.
(10) Miscellaneous cross-reference corrections for newly
added provisions.--
(A) Section 245(c)(6), as amended by section 332(d),
is amended by striking ``241(a)(4)(B)'' and inserting
``237(a)(4)(B)''.
(B) Section 249(d), as amended by section 332(e), is
amended by striking ``241(a)(4)(B)'' and inserting
``237(a)(4)(B)''.
(C) Section 276(b)(3), as inserted by section 321(b),
is amended by striking ``excluded'' and ``excludable''
and inserting ``removed'' and ``inadmissible'',
respectively.
(D) Section 505(c)(7), as added by section 321(a)(1),
is amended by amending subparagraphs (B) through (D) to
read as follows:
``(B) Withholding of removal under section 241(b)(3).
``(C) Cancellation of removal under section 240A.
``(D) Voluntary departure under section 240B.''.
(E) Section 506(b)(2)(B), as added by section
321(a)(1), is amended by striking ``deportation'' and
inserting ``removal''.
(F) Section 508(c)(2)(D), as added by section
321(a)(1), is amended by striking ``exclusion because
such alien is excludable'' and inserting ``removal
because such alien is inadmissible''.
(G) Section 130007(a) of the Violent Crime Control
and Law Enforcement Act of 1994 (Public Law 103-322),
as amended by section 851(a)(6), is amended by striking
``242A(a)(3)'' and inserting ``238(a)(3)''.
SEC. 309. EFFECTIVE DATES; TRANSITION.
(a) In General.--Except as provided in this section and section
301(f), this subtitle and the amendments made by this subtitle shall
take effect on the first day of the first month beginning more than 180
days after the date of the enactment of this Act (in this title
referred to as the ``title III-A effective date'').
(b) Promulgation of Regulations.--The Attorney General shall first
promulgate regulations to carry out this subtitle by not later than 30
days before the title III-A effective date.
(c) Transition For Aliens in Proceedings.--
(1) General rule that new rules do not apply.--Subject to the
succeeding provisions of this subsection, in the case of an
alien who is in exclusion or deportation proceedings as of the
title III-A effective date--
(A) the amendments made by this subtitle shall not
apply, and
(B) the proceedings (including judicial review
thereof) shall continue to be conducted without regard
to such amendments.
(2) Attorney general option to elect to apply new
procedures.--In a case described in paragraph (1) in which an
evidentiary hearing under section 236 or 242 and 242B of the
Immigration and Nationality Act has not commenced as of the
title III-A effective date, the Attorney General may elect to
proceed under chapter 4 of title II of such Act (as amended by
this subtitle). The Attorney General shall provide notice of
such election to the alien involved not later than 30 days
before the date any evidentiary hearing is commenced. If the
Attorney General makes such election, the notice of hearing
provided to the alien under section 235 or 242(a) of such Act
shall be valid as if provided under section 239 of such Act (as
amended by this subtitle) to confer jurisdiction on the
immigration judge.
(3) Attorney general option to terminate and reinitiate
proceedings.--In the case described in paragraph (1), the
Attorney General may elect to terminate proceedings in which
there has not been a final administrative decision and to
reinitiate proceedings under chapter 4 of title II the
Immigration and Nationality Act (as amended by this subtitle).
Any determination in the terminated proceeding shall not be
binding in the reinitiated proceeding.
(4) Transitional changes in judicial review.--In the case
described in paragraph (1) in which a final order of exclusion
or deportation is entered more than 30 days after the date of
the enactment of this Act, notwithstanding any provision of
section 106 of the Immigration and Nationality Act (as in
effect as of the date of the enactment of this Act) to the
contrary--
(A) in the case of judicial review of a final order
of exclusion, subsection (b) of such section shall not
apply and the action for judicial review shall be
governed by the provisions of subsections (a) and (c)
of such in the same manner as they apply to judicial
review of orders of deportation;
(B) a court may not order the taking of additional
evidence under section 2347(c) of title 28, United
States Code;
(C) the petition for judicial review must be filed
not later than 30 days after the date of the final
order of exclusion or deportation; and
(D) the petition for review shall be filed with the
court of appeals for the judicial circuit in which the
administrative proceedings before the special inquiry
officer or immigration judge were completed.
(5) Transitional rule with regard to suspension of
deportation.--Paragraphs (1) and (2) of section 240A(d) of the
Immigration and Nationality Act (relating to continuous
residence or physical presence) shall apply to notices to
appear issued after the date of the enactment of this Act.
(6) Transition for certain family unity aliens.--The Attorney
General may waive the application of section 212(a)(9) of the
Immigration and Nationality Act, as inserted by section
301(b)(1), in the case of an alien who is provided benefits
under the provisions of section 301 of the Immigration Act of
1990 (relating to family unity).
(d) Transitional References.--For purposes of carrying out the
Immigration and Nationality Act, as amended by this subtitle--
(1) any reference in section 212(a)(1)(A) of such Act to the
term ``inadmissible'' is deemed to include a reference to the
term ``excludable'', and
(2) any reference in law to an order of removal shall be
deemed to include a reference to an order of exclusion and
deportation or an order of deportation.
(e) Transition.--No period of time before the date of the enactment
of this Act shall be included in the period of 1 year described in
section 212(a)(6)(B)(i) of the Immigration and Nationality Act (as
amended by section 301(c)).
Subtitle B--Removal of Alien Terrorists
PART 1--REMOVAL PROCEDURES FOR ALIEN TERRORISTS
SEC. 321. REMOVAL PROCEDURES FOR ALIEN TERRORISTS.
(a) In General.--The Immigration and Nationality Act is amended--
(1) by adding at the end of the table of contents the
following:
``Title V--Special Removal Procedures for Alien Terrorists
``Sec. 501. Definitions.
``Sec. 502. Establishment of special removal court; panel of attorneys
to assist with classified information.
``Sec. 503. Application for initiation of special removal proceeding.
``Sec. 504. Consideration of application.
``Sec. 505. Special removal hearings.
``Sec. 506. Consideration of classified information.
``Sec. 507. Appeals.
``Sec. 508. Detention and custody.'',
and
(2) by adding at the end the following new title:
``TITLE V--SPECIAL REMOVAL PROCEDURES FOR ALIEN TERRORISTS
``definitions
``Sec. 501. In this title:
``(1) The term `alien terrorist' means an alien described in
section 241(a)(4)(B).
``(2) The term `classified information' has the meaning given
such term in section 1(a) of the Classified Information
Procedures Act (18 U.S.C. App.).
``(3) The term `national security' has the meaning given such
term in section 1(b) of the Classified Information Procedures
Act (18 U.S.C. App.).
``(4) The term `special attorney' means an attorney who is on
the panel established under section 502(e).
``(5) The term `special removal court' means the court
established under section 502(a).
``(6) The term `special removal hearing' means a hearing
under section 505.
``(7) The term `special removal proceeding' means a
proceeding under this title.
``establishment of special removal court; panel of attorneys to assist
with classified information
``Sec. 502. (a) In General.--The Chief Justice of the United States
shall publicly designate 5 district court judges from 5 of the United
States judicial circuits who shall constitute a court which shall have
jurisdiction to conduct all special removal proceedings.
``(b) Terms.--Each judge designated under subsection (a) shall serve
for a term of 5 years and shall be eligible for redesignation, except
that the four associate judges first so designated shall be designated
for terms of one, two, three, and four years so that the term of one
judge shall expire each year.
``(c) Chief Judge.--The Chief Justice shall publicly designate one of
the judges of the special removal court to be the chief judge of the
court. The chief judge shall promulgate rules to facilitate the
functioning of the court and shall be responsible for assigning the
consideration of cases to the various judges.
``(d) Expeditious and Confidential Nature of Proceedings.--The
provisions of section 103(c) of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1803(c)) shall apply to proceedings under this
title in the same manner as they apply to proceedings under such Act.
``(e) Establishment of Panel of Special Attorneys.--The special
removal court shall provide for the designation of a panel of attorneys
each of whom--
``(1) has a security clearance which affords the attorney
access to classified information, and
``(2) has agreed to represent permanent resident aliens with
respect to classified information under section 506 in
accordance with (and subject to the penalties under) this
title.
``application for initiation of special removal proceeding
``Sec. 503. (a) In General.--Whenever the Attorney General has
classified information that an alien is an alien terrorist, the
Attorney General, in the Attorney General's discretion, may seek
removal of the alien under this title through the filing of a written
application described in subsection (b) with the special removal court
seeking an order authorizing a special removal proceeding under this
title. The application shall be submitted in camera and ex parte and
shall be filed under seal with the court.
``(b) Contents of Application.--Each application for a special
removal proceeding shall include all of the following:
``(1) The identity of the Department of Justice attorney
making the application.
``(2) The approval of the Attorney General or the Deputy
Attorney General for the filing of the application based upon a
finding by that individual that the application satisfies the
criteria and requirements of this title.
``(3) The identity of the alien for whom authorization for
the special removal proceedings is sought.
``(4) A statement of the facts and circumstances relied on by
the Department of Justice to establish that--
``(A) the alien is an alien terrorist and is
physically present in the United States, and
``(B) with respect to such alien, adherence to the
provisions of title II regarding the removal of aliens
would pose a risk to the national security of the
United States.
``(5) An oath or affirmation respecting each of the facts and
statements described in the previous paragraphs.
``(c) Right to Dismiss.--The Department of Justice retains the right
to dismiss a removal action under this title at any stage of the
proceeding.
``consideration of application
``Sec. 504. (a) In General.--In the case of an application under
section 503 to the special removal court, a single judge of the court
shall be assigned to consider the application. The judge, in accordance
with the rules of the court, shall consider the application and may
consider other information, including classified information, presented
under oath or affirmation. The judge shall consider the application
(and any hearing thereof) in camera and ex parte. A verbatim record
shall be maintained of any such hearing.
``(b) Approval of Order.--The judge shall enter ex parte the order
requested in the application if the judge finds, on the basis of such
application and such other information (if any), that there is probable
cause to believe that--
``(1) the alien who is the subject of the application has
been correctly identified and is an alien terrorist, and
``(2) adherence to the provisions of title II regarding the
removal of the identified alien would pose a risk to the
national security of the United States.
``(c) Denial of Order.--If the judge denies the order requested in
the application, the judge shall prepare a written statement of the
judge's reasons for the denial.
``(d) Exclusive Provisions.--Whenever an order is issued under this
section with respect to an alien--
``(1) the alien's rights regarding removal and expulsion
shall be governed solely by the provisions of this title, and
``(2) except as they are specifically referenced, no other
provisions of this Act shall be applicable.
``special removal hearings
``Sec. 505. (a) In General.--In any case in which the application for
the order is approved under section 504, a special removal hearing
shall be conducted under this section for the purpose of determining
whether the alien to whom the order pertains should be removed from the
United States on the grounds that the alien is an alien terrorist.
Consistent with section 506, the alien shall be given reasonable notice
of the nature of the charges against the alien and a general account of
the basis for the charges. The alien shall be given notice, reasonable
under all the circumstances, of the time and place at which the hearing
will be held. The hearing shall be held as expeditiously as possible.
``(b) Use of Same Judge.--The special removal hearing shall be held
before the same judge who granted the order pursuant to section 504
unless that judge is deemed unavailable due to illness or disability by
the chief judge of the special removal court, or has died, in which
case the chief judge shall assign another judge to conduct the special
removal hearing. A decision by the chief judge pursuant to the
preceding sentence shall not be subject to review by either the alien
or the Department of Justice.
``(c) Rights in Hearing.--
``(1) Public hearing.--The special removal hearing shall be
open to the public.
``(2) Right of counsel.--The alien shall have a right to be
present at such hearing and to be represented by counsel. Any
alien financially unable to obtain counsel shall be entitled to
have counsel assigned to represent the alien. Such counsel
shall be appointed by the judge pursuant to the plan for
furnishing representation for any person financially unable to
obtain adequate representation for the district in which the
hearing is conducted, as provided for in section 3006A of title
18, United States Code. All provisions of that section shall
apply and, for purposes of determining the maximum amount of
compensation, the matter shall be treated as if a felony was
charged.
``(3) Introduction of evidence.--The alien shall have a right
to introduce evidence on the alien's own behalf.
``(4) Examination of witnesses.--Except as provided in
section 506, the alien shall have a reasonable opportunity to
examine the evidence against the alien and to cross-examine any
witness.
``(5) Record.--A verbatim record of the proceedings and of
all testimony and evidence offered or produced at such a
hearing shall be kept.
``(6) Decision based on evidence at hearing.--The decision of
the judge in the hearing shall be based only on the evidence
introduced at the hearing, including evidence introduced under
subsection (e).
``(7) No right to ancillary relief.--In the hearing, the
judge is not authorized to consider or provide for relief from
removal based on any of the following:
``(A) Asylum under section 208.
``(B) Withholding of deportation under section
243(h).
``(C) Suspension of deportation under section 244(a).
``(D) Voluntary departure under section 244(e).
``(E) Adjustment of status under section 245.
``(F) Registry under section 249.
``(d) Subpoenas.--
``(1) Request.--At any time prior to the conclusion of the
special removal hearing, either the alien or the Department of
Justice may request the judge to issue a subpoena for the
presence of a named witness (which subpoena may also command
the person to whom it is directed to produce books, papers,
documents, or other objects designated therein) upon a
satisfactory showing that the presence of the witness is
necessary for the determination of any material matter. Such a
request may be made ex parte except that the judge shall inform
the Department of Justice of any request for a subpoena by the
alien for a witness or material if compliance with such a
subpoena would reveal evidence or the source of evidence which
has been introduced, or which the Department of Justice has
received permission to introduce, in camera and ex parte
pursuant to subsection (e) and section 506, and the Department
of Justice shall be given a reasonable opportunity to oppose
the issuance of such a subpoena.
``(2) Payment for attendance.--If an application for a
subpoena by the alien also makes a showing that the alien is
financially unable to pay for the attendance of a witness so
requested, the court may order the costs incurred by the
process and the fees of the witness so subpoenaed to be paid
from funds appropriated for the enforcement of title II.
``(3) Nationwide service.--A subpoena under this subsection
may be served anywhere in the United States.
``(4) Witness fees.--A witness subpoenaed under this
subsection shall receive the same fees and expenses as a
witness subpoenaed in connection with a civil proceeding in a
court of the United States.
``(5) No access to classified information.--Nothing in this
subsection is intended to allow an alien to have access to
classified information.
``(e) Introduction of Classified Information.--
``(1) In general.--When classified information has been
summarized pursuant to section 506(b) or where a finding has
been made under section 506(b)(5) that no summary is possible,
classified information shall be introduced (either in writing
or through testimony) in camera and ex parte and neither the
alien nor the public shall be informed of such evidence or its
sources other than through reference to the summary provided
pursuant to such section. Notwithstanding the previous
sentence, the Department of Justice may, in its discretion and,
in the case of classified information, after coordination with
the originating agency, elect to introduce such evidence in
open session.
``(2) Treatment of electronic surveillance information.--
``(A) Use of electronic surveillance.--The Government
is authorized to use in a special removal proceedings
the fruits of electronic surveillance and unconsented
physical searches authorized under the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq.) without regard to subsections (c), (e), (f),
(g), and (h) of section 106 of that Act.
``(B) No discovery of electronic surveillance
information.--An alien subject to removal under this
title shall have no right of discovery of information
derived from electronic surveillance authorized under
the Foreign Intelligence Surveillance Act of 1978 or
otherwise for national security purposes. Nor shall
such alien have the right to seek suppression of
evidence.
``(C) Certain procedures not applicable.--The
provisions and requirements of section 3504 of title
18, United States Code, shall not apply to procedures
under this title.
``(3) Rights of united states.--Nothing in this section shall
prevent the United States from seeking protective orders and
from asserting privileges ordinarily available to the United
States to protect against the disclosure of classified
information, including the invocation of the military and state
secrets privileges.
``(f) Inclusion of Certain Evidence.--The Federal Rules of Evidence
shall not apply to hearings under this section. Evidence introduced at
the special removal hearing, either in open session or in camera and ex
parte, may, in the discretion of the Department of Justice, include all
or part of the information presented under section 504 used to obtain
the order for the hearing under this section.
``(g) Arguments.--Following the receipt of evidence, the attorneys
for the Department of Justice and for the alien shall be given fair
opportunity to present argument as to whether the evidence is
sufficient to justify the removal of the alien. The attorney for the
Department of Justice shall open the argument. The attorney for the
alien shall be permitted to reply. The attorney for the Department of
Justice shall then be permitted to reply in rebuttal. The judge may
allow any part of the argument that refers to evidence received in
camera and ex parte to be heard in camera and ex parte.
``(h) Burden of Proof.--In the hearing the Department of Justice has
the burden of showing by clear and convincing evidence that the alien
is subject to removal because the alien is an alien terrorist. If the
judge finds that the Department of Justice has met this burden, the
judge shall order the alien removed and detained pending removal from
the United States. If the alien was released pending the special
removal hearing, the judge shall order the Attorney General to take the
alien into custody.
``(i) Written Order.--At the time of rendering a decision as to
whether the alien shall be removed, the judge shall prepare a written
order containing a statement of facts found and conclusions of law. Any
portion of the order that would reveal the substance or source of
information received in camera and ex parte pursuant to subsection (e)
shall not be made available to the alien or the public.
``consideration of classified information
``Sec. 506. (a) Consideration In Camera and Ex Parte.--In any case in
which the application for the order authorizing the special procedures
of this title is approved, the judge who granted the order shall
consider each item of classified information the Department of Justice
proposes to introduce in camera and ex parte at the special removal
hearing and shall order the introduction of such information pursuant
to section 505(e) if the judge determines the information to be
relevant.
``(b) Preparation and Provision of Written Summary.--
``(1) Preparation.--The Department of Justice shall prepare a
written summary of such classified information which does not
pose a risk to national security.
``(2) Conditions for approval by judge and provision to
alien.--The judge shall approve the summary so long as the
judge finds that the summary is sufficient--
``(A) to inform the alien of the general nature of
the evidence that the alien is an alien terrorist, and
``(B) to permit the alien to prepare a defense
against deportation.
The Department of Justice shall cause to be delivered to the
alien a copy of the summary.
``(3) Opportunity for correction and resubmittal.--If the
judge does not approve the summary, the judge shall provide the
Department a reasonable opportunity to correct the deficiencies
identified by the court and to submit a revised summary.
``(4) Conditions for termination of proceedings if summary
not approved.--
``(A) In general.--If, subsequent to the opportunity
described in paragraph (3), the judge does not approve
the summary, the judge shall terminate the special
removal hearing unless the judge makes the findings
described in subparagraph (B).
``(B) Findings.--The findings described in this
subparagraph are, with respect to an alien, that--
``(i) the continued presence of the alien in
the United States would likely cause serious
and irreparable harm to the national security
or death or serious bodily injury to any
person, and
``(ii) the provision of the required summary
would likely cause serious and irreparable harm
to the national security or death or serious
bodily injury to any person.
``(5) Continuation of hearing without summary.--If a judge
makes the findings described in paragraph (4)(B)--
``(A) if the alien involved is an alien lawfully
admitted for permanent residence, the procedures
described in subsection (c) shall apply; and
``(B) in all cases the special removal hearing shall
continue, the Department of Justice shall cause to be
delivered to the alien a statement that no summary is
possible, and the classified information submitted in
camera and ex parte may be used pursuant to section
505(e).
``(c) Special Procedures for Access and Challenges to Classified
Information by Special Attorneys in Case of Lawful Permanent Aliens.--
``(1) In general.--The procedures described in this
subsection are that the judge (under rules of the special
removal court) shall designate a special attorney to assist the
alien--
``(A) by reviewing in camera the classified
information on behalf of the alien, and
``(B) by challenging through an in camera proceeding
the veracity of the evidence contained in the
classified information.
``(2) Restrictions on disclosure.--A special attorney
receiving classified information under paragraph (1)--
``(A) shall not disclose the information to the alien
or to any other attorney representing the alien, and
``(B) who discloses such information in violation of
subparagraph (A) shall be subject to a fine under title
18, United States Code, imprisoned for not less than 10
years nor more than 25 years, or both.
``appeals
``Sec. 507. (a) Appeals of Denials of Applications for Orders.--The
Department of Justice may seek a review of the denial of an order
sought in an application by the United States Court of Appeals for the
District of Columbia Circuit by notice of appeal which must be filed
within 20 days after the date of such denial. In such a case the entire
record of the proceeding shall be transmitted to the Court of Appeals
under seal and the Court of Appeals shall hear the matter ex parte. In
such a case the Court of Appeals shall review questions of law de novo,
but a prior finding on any question of fact shall not be set aside
unless such finding was clearly erroneous.
``(b) Appeals of Determinations About Summaries of Classified
Information.--Either party may take an interlocutory appeal to the
United States Court of Appeals for the District of Columbia Circuit
of--
``(1) any determination by the judge pursuant to section
506(a)--
``(A) concerning whether an item of evidence may be
introduced in camera and ex parte, or
``(B) concerning the contents of any summary of
evidence to be introduced in camera and ex parte
prepared pursuant to section 506(b); or
``(2) the refusal of the court to make the findings permitted
by section 506(b)(4)(B).
In any interlocutory appeal taken pursuant to this subsection, the
entire record, including any proposed order of the judge or summary of
evidence, shall be transmitted to the Court of Appeals under seal and
the matter shall be heard ex parte.
``(c) Appeals of Decision in Hearing.--
``(1) In general.--Subject to paragraph (2), the decision of
the judge after a special removal hearing may be appealed by
either the alien or the Department of Justice to the United
States Court of Appeals for the District of Columbia Circuit by
notice of appeal.
``(2) Automatic appeals in cases of permanent resident aliens
in which no summary provided.--
``(A) In general.--Unless the alien waives the right
to a review under this paragraph, in any case involving
an alien lawfully admitted for permanent residence who
is denied a written summary of classified information
under section 506(b)(4) and with respect to which the
procedures described in section 506(c) apply, any order
issued by the judge shall be reviewed by the Court of
Appeals for the District of Columbia Circuit.
``(B) Use of special attorney.--With respect to any
issue relating to classified information that arises in
such review, the alien shall be represented only by the
special attorney designated under section 506(c)(1) on
behalf of the alien.
``(d) General Provisions Relating to Appeals.--
``(1) Notice.--A notice of appeal pursuant to subsection (b)
or (c) (other than under subsection (c)(2)) must be filed
within 20 days after the date of the order with respect to
which the appeal is sought, during which time the order shall
not be executed.
``(2) Transmittal of record.--In an appeal or review to the
Court of Appeals pursuant to subsection (b) or (c)--
``(A) the entire record shall be transmitted to the
Court of Appeals, and
``(B) information received pursuant to section
505(e), and any portion of the judge's order that would
reveal the substance or source of such information,
shall be transmitted under seal.
``(3) Expedited appellate proceeding.--In an appeal or review
to the Court of Appeals pursuant to subsection (b) or (c):
``(A) Review.--The appeal or review shall be heard as
expeditiously as practicable and the Court may dispense
with full briefing and hear the matter solely on the
record of the judge of the special removal court and on
such briefs or motions as the Court may require to be
filed by the parties.
``(B) Disposition.--The Court shall uphold or reverse
the judge's order within 60 days after the date of the
issuance of the judge's final order.
``(4) Standard for review.--In an appeal or review to the
Court of Appeals pursuant to subsection (b) or (c):
``(A) Questions of law.--The Court of Appeals shall
review all questions of law de novo.
``(B) Questions of fact.--(i) Subject to clause (ii),
a prior finding on any question of fact shall not be
set aside unless such finding was clearly erroneous.
``(ii) In the case of a review under subsection
(c)(2) in which an alien lawfully admitted for
permanent residence was denied a written summary of
classified information under section 506(b)(4), the
Court of Appeals shall review questions of fact de
novo.
``(e) Certiorari.--Following a decision by the Court of Appeals
pursuant to subsection (b) or (c), either the alien or the Department
of Justice may petition the Supreme Court for a writ of certiorari. In
any such case, any information transmitted to the Court of Appeals
under seal shall, if such information is also submitted to the Supreme
Court, be transmitted under seal. Any order of removal shall not be
stayed pending disposition of a writ of certiorari except as provided
by the Court of Appeals or a Justice of the Supreme Court.
``(f) Appeals of Detention Orders.--
``(1) In general.--The provisions of sections 3145 through
3148 of title 18, United States Code, pertaining to review and
appeal of a release or detention order, penalties for failure
to appear, penalties for an offense committed while on release,
and sanctions for violation of a release condition shall apply
to an alien to whom section 508(b)(1) applies. In applying the
previous sentence--
``(A) for purposes of section 3145 of such title an
appeal shall be taken to the United States Court of
Appeals for the District of Columbia Circuit, and
``(B) for purposes of section 3146 of such title the
alien shall be considered released in connection with a
charge of an offense punishable by life imprisonment.
``(2) No review of continued detention.--The determinations
and actions of the Attorney General pursuant to section
508(c)(2)(C) shall not be subject to judicial review, including
application for a writ of habeas corpus, except for a claim by
the alien that continued detention violates the alien's rights
under the Constitution. Jurisdiction over any such challenge
shall lie exclusively in the United States Court of Appeals for
the District of Columbia Circuit.
``detention and custody
``Sec. 508. (a) Initial Custody.--
``(1) Upon filing application.--Subject to paragraph (2), the
Attorney General may take into custody any alien with respect
to whom an application under section 503 has been filed and,
notwithstanding any other provision of law, may retain such an
alien in custody in accordance with the procedures authorized
by this title.
``(2) Special rules for permanent resident aliens.--An alien
lawfully admitted for permanent residence shall be entitled to
a release hearing before the judge assigned to hear the special
removal hearing. Such an alien shall be detained pending the
special removal hearing, unless the alien demonstrates to the
court that--
``(A) the alien, if released upon such terms and
conditions as the court may prescribe (including the
posting of any monetary amount), is not likely to flee,
and
``(B) the alien's release will not endanger national
security or the safety of any person or the community.
The judge may consider classified information submitted in
camera and ex parte in making a determination under this
paragraph.
``(3) Release if order denied and no review sought.--
``(A) In general.--Subject to subparagraph (B), if a
judge of the special removal court denies the order
sought in an application with respect to an alien and
the Department of Justice does not seek review of such
denial, the alien shall be released from custody.
``(B) Application of regular procedures.--
Subparagraph (A) shall not prevent the arrest and
detention of the alien pursuant to title II.
``(b) Conditional Release If Order Denied and Review Sought.--
``(1) In general.--If a judge of the special removal court
denies the order sought in an application with respect to an
alien and the Department of Justice seeks review of such
denial, the judge shall release the alien from custody subject
to the least restrictive condition or combination of conditions
of release described in section 3142(b) and clauses (i) through
(xiv) of section 3142(c)(1)(B) of title 18, United States Code,
that will reasonably assure the appearance of the alien at any
future proceeding pursuant to this title and will not endanger
the safety of any other person or the community.
``(2) No release for certain aliens.--If the judge finds no
such condition or combination of conditions, the alien shall
remain in custody until the completion of any appeal authorized
by this title.
``(c) Custody and Release After Hearing.--
``(1) Release.--
``(A) In general.--Subject to subparagraph (B), if
the judge decides pursuant to section 505(i) that an
alien should not be removed, the alien shall be
released from custody.
``(B) Custody pending appeal.--If the Attorney
General takes an appeal from such decision, the alien
shall remain in custody, subject to the provisions of
section 3142 of title 18, United States Code.
``(2) Custody and removal.--
``(A) Custody.--If the judge decides pursuant to
section 505(i) that an alien shall be removed, the
alien shall be detained pending the outcome of any
appeal. After the conclusion of any judicial review
thereof which affirms the removal order, the Attorney
General shall retain the alien in custody and remove
the alien to a country specified under subparagraph
(B).
``(B) Removal.--
``(i) In general.--The removal of an alien
shall be to any country which the alien shall
designate if such designation does not, in the
judgment of the Attorney General, in
consultation with the Secretary of State,
impair the obligation of the United States
under any treaty (including a treaty pertaining
to extradition) or otherwise adversely affect
the foreign policy of the United States.
``(ii) Alternate countries.--If the alien
refuses to designate a country to which the
alien wishes to be removed or if the Attorney
General, in consultation with the Secretary of
State, determines that removal of the alien to
the country so designated would impair a treaty
obligation or adversely affect United States
foreign policy, the Attorney General shall
cause the alien to be removed to any country
willing to receive such alien.
``(C) Continued detention.--If no country is willing
to receive such an alien, the Attorney General may,
notwithstanding any other provision of law, retain the
alien in custody. The Attorney General, in coordination
with the Secretary of State, shall make periodic
efforts to reach agreement with other countries to
accept such an alien and at least every 6 months shall
provide to the attorney representing the alien at the
special removal hearing a written report on the
Attorney General's efforts. Any alien in custody
pursuant to this subparagraph shall be released from
custody solely at the discretion of the Attorney
General and subject to such conditions as the Attorney
General shall deem appropriate.
``(D) Fingerprinting.--Before an alien is transported
out of the United States pursuant to this subsection,
or pursuant to an order of exclusion because such alien
is excludable under section 212(a)(3)(B), the alien
shall be photographed and fingerprinted, and shall be
advised of the provisions of subsection 276(b).
``(d) Continued Detention Pending Trial.--
``(1) Delay in removal.--Notwithstanding the provisions of
subsection (c)(2), the Attorney General may hold in abeyance
the removal of an alien who has been ordered removed pursuant
to this title to allow the trial of such alien on any Federal
or State criminal charge and the service of any sentence of
confinement resulting from such a trial.
``(2) Maintenance of custody.--Pending the commencement of
any service of a sentence of confinement by an alien described
in paragraph (1), such an alien shall remain in the custody of
the Attorney General, unless the Attorney General determines
that temporary release of the alien to the custody of State
authorities for confinement in a State facility is appropriate
and would not endanger national security or public safety.
``(3) Subsequent removal.--Following the completion of a
sentence of confinement by an alien described in paragraph (1)
or following the completion of State criminal proceedings which
do not result in a sentence of confinement of an alien released
to the custody of State authorities pursuant to paragraph (2),
such an alien shall be returned to the custody of the Attorney
General who shall proceed to carry out the provisions of
subsection (c)(2) concerning removal of the alien.
``(e) Application of Certain Provisions Relating to Escape of
Prisoners.--For purposes of sections 751 and 752 of title 18, United
States Code, an alien in the custody of the Attorney General pursuant
to this title shall be subject to the penalties provided by those
sections in relation to a person committed to the custody of the
Attorney General by virtue of an arrest on a charge of a felony.
``(f) Rights of Aliens in Custody.--
``(1) Family and attorney visits.--An alien in the custody of
the Attorney General pursuant to this title shall be given
reasonable opportunity to communicate with and receive visits
from members of the alien's family, and to contact, retain, and
communicate with an attorney.
``(2) Diplomatic contact.--An alien in the custody of the
Attorney General pursuant to this title shall have the right to
contact an appropriate diplomatic or consular official of the
alien's country of citizenship or nationality or of any country
providing representation services therefore. The Attorney
General shall notify the appropriate embassy, mission, or
consular office of the alien's detention.''.
(b) Criminal Penalty for Reentry of Alien Terrorists.--Section 276(b)
(8 U.S.C. 1326(b)) is amended--
(1) by striking ``or'' at the end of paragraph (1),
(2) by striking the period at the end of paragraph (2) and
inserting ``; or'', and
(3) by inserting after paragraph (2) the following new
paragraph:
``(3) who has been excluded from the United States pursuant
to subsection 235(c) because the alien was excludable under
subsection 212(a)(3)(B) or who has been removed from the United
States pursuant to the provisions of title V, 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.''.
(c) Elimination of Custody Review by Habeas Corpus.--Section 106(a)
(8 U.S.C. 1105a(a)) is amended--
(1) by adding ``and'' at the end of paragraph (8),
(2) by striking ``; and'' at the end of paragraph (9) and
inserting a period, and
(3) by striking paragraph (10).
(d) Effective Date.--The amendments made by this section shall take
effect on the date of the enactment of this Act and shall apply to all
aliens without regard to the date of entry or attempted entry into the
United States.
SEC. 322. FUNDING FOR DETENTION AND REMOVAL OF ALIEN TERRORISTS.
In addition to amounts otherwise appropriated, there are authorized
to be appropriated for each fiscal year (beginning with fiscal year
1996) $5,000,000 to the Immigration and Naturalization Service for the
purpose of detaining and removing alien terrorists.
PART 2--INADMISSIBILITY AND DENIAL OF RELIEF FOR ALIEN TERRORISTS
SEC. 331. MEMBERSHIP IN TERRORIST ORGANIZATION AS GROUND OF
INADMISSIBILITY.
(a) In General.--Section 212(a)(3)(B) (8 U.S.C. 1182(a)(3)(B)) is
amended--
(1) in clause (i)--
(A) by striking ``or'' at the end of subclause (I),
(B) in subclause (II), by inserting ``engaged in or''
after ``believe,'', and
(C) by inserting after subclause (II) the following:
``(III) is a representative of a
terrorist organization, or
``(IV) is a member of a terrorist
organization which the alien knows or
should have known is a terrorist
organization,''; and
(2) by adding at the end the following:
``(iv) Terrorist organization defined.--
``(I) Designation.--For purposes of
this Act, the term `terrorist
organization' means a foreign
organization designated in the Federal
Register as a terrorist organization by
the Secretary of State, in consultation
with the Attorney General, based upon a
finding that the organization engages
in, or has engaged in, terrorist
activity that threatens the national
security of the United States.
``(II) Process.--At least 3 days
before designating an organization as a
terrorist organization through
publication in the Federal Register,
the Secretary of State, in consultation
with the Attorney General, shall notify
the Committees on the Judiciary of the
House of Representatives and the Senate
of the intent to make such designation
and the findings and basis for
designation. The Secretary of State, in
consultation with the Attorney General,
shall create an administrative record
and may use classified information in
making such a designation. Such
information is not subject to
disclosure so long as it remains
classified, except that it may be
disclosed to a court ex parte and in
camera under subclause (III) for
purposes of judicial review of such a
designation. The Secretary of State, in
consultation with the Attorney General,
shall provide notice and an opportunity
for public comment prior to the
creation of the administrative record
under this subclause.
``(III) Judicial review.--Any
organization designated as a terrorist
organization under the preceding
provisions of this clause may, not
later than 30 days after the date of
the designation, seek judicial review
thereof in the United States Court of
Appeals for the District of Columbia
Circuit. Such review shall be based
solely upon the administrative record,
except that the Government may submit,
for ex parte and in camera review,
classified information considered in
making the designation. The court shall
hold unlawful and set aside the
designation if the court finds the
designation to be arbitrary,
capricious, an abuse of discretion, or
otherwise not in accordance with law,
lacking substantial support in the
administrative record taken as a whole
or in classified information submitted
to the court under the previous
sentence, contrary to constitutional
right, power, privilege, or immunity,
or not in accord with the procedures
required by law.
``(IV) Congressional removal
authority.--The Congress reserves the
authority to remove, by law, the
designation of an organization as a
terrorist organization for purposes of
this Act.
``(V) Sunset.--Subject to subclause
(IV), the designation under this clause
of an organization as a terrorist
organization shall be effective for a
period of 2 years from the date of the
initial publication of the terrorist
organization designation by the
Secretary of State. At the end of such
period (but no sooner than 60 days
prior to the termination of the 2-year-
designation period), the Secretary of
State, in consultation with the
Attorney General, may redesignate the
organization in conformity with the
requirements of this clause for
designation of the organization.
``(VI) Removal authority.--The
Secretary of State, in consultation
with the Attorney General, may remove
the terrorist organization designation
from any organization previously
designated as such an organization, at
any time, so long as the Secretary
publishes notice of the removal in the
Federal Register. The Secretary is not
required to report to Congress prior to
so removing such designation.
``(v) Representative defined.--
``(I) In general.--In this
subparagraph, the term `representative'
includes an officer, official, or
spokesman of the organization and any
person who directs, counsels, commands
or induces the organization or its
members to engage in terrorist
activity.
``(II) Judicial review.--The
determination under this subparagraph
that an alien is a representative of a
terrorist organization shall be subject
to judicial review under section 706 of
title 5, United States Code.''.
(b) Effective Date.--The amendments made by this section shall take
effect on the date of the enactment of this Act.
SEC. 332. DENIAL OF RELIEF FOR ALIEN TERRORISTS.
(a) Withholding of Deportation.--Subsection (h)(2) of section 243 (8
U.S.C. 1253), before amendment by section 307(a), is amended by adding
at the end the following new sentence: ``For purposes of subparagraph
(D), an alien who is described in section 241(a)(4)(B) shall be
considered to be an alien for whom there are reasonable grounds for
regarding as a danger to the security of the United States.''.
(b) Suspension of Deportation.--Section 244(a) (8 U.S.C. 1254(a)),
before amendment by section 308(b), is amended by striking ``section
241(a)(4)(D)'' and inserting ``subparagraph (B) or (D) of section
241(a)(4)''.
(c) Voluntary Departure.--Section 244(e)(2) (8 U.S.C. 1254(e)(2)),
before amendment by section 308(b), is amended by inserting ``under
section 241(a)(4)(B) or'' after ``who is deportable''.
(d) Adjustment of Status.--Section 245(c) (8 U.S.C. 1255(c)) is
amended--
(1) by striking ``or'' before ``(5)'', and
(2) by inserting before the period at the end the following:
``, or (6) an alien who is deportable under section
241(a)(4)(B)''.
(e) Registry.--Section 249(d) (8 U.S.C. 1259(d)) is amended by
inserting ``and is not deportable under section 241(a)(4)(B)'' after
``ineligible to citizenship''.
(f) Effective Date.--(1) The amendments made by this section shall
take effect on the date of the enactment of this Act and shall apply to
applications filed before, on, or after such date if final action has
not been taken on them before such date.
(2) The amendments made by subsections (a) through (c) are
subsequently superseded by the amendments made by subtitle A.
Subtitle C--Deterring Transportation of Unlawful Aliens to the United
States
SEC. 341. DEFINITION OF STOWAWAY.
(a) Stowaway Defined.--Section 101(a) (8 U.S.C. 1101(a)) is amended
by adding the following new paragraph:
``(47) The term `stowaway' means any alien who obtains transportation
without the consent of the owner, charterer, master or person in
command of any vessel or aircraft through concealment aboard such
vessel or aircraft. A passenger who boards with a valid ticket is not
to be considered a stowaway.''.
(b) Effective Date.--The amendment made by subsection (a) shall take
effect on the date of the enactment of this Act.
SEC. 342. LIST OF ALIEN AND CITIZEN PASSENGERS ARRIVING.
(a) In General.--Section 231(a) (8 U.S.C. 1221(a)) is amended--
(1) by amending the first sentence to read as follows: ``In
connection with the arrival of any person by water or by air at
any port within the United States from any place outside the
United States, it shall be the duty of the master or commanding
officer, or authorized agent, owner, or consignee of the vessel
or aircraft, having such person on board to deliver to the
immigration officers at the port of arrival, or other place
designated by the Attorney General, electronic, typewritten, or
printed lists or manifests of the persons on board such vessel
or aircraft.'';
(2) in the second sentence, by striking ``shall be prepared''
and inserting ``shall be prepared and submitted''; and
(3) by inserting after the second sentence the following
sentence: ``Such lists or manifests shall contain, but not be
limited to, for each person transported, the person's full
name, date of birth, gender, citizenship, travel document
number (if applicable) and arriving flight number.''.
(b) Effective Date.--The amendments made by subsection (a) shall
apply to vessels or aircraft arriving at ports of entry on or after
such date (not later than 60 days after the date of the enactment of
this Act) as the Attorney General shall specify.
Subtitle D--Additional Provisions
SEC. 351. DEFINITION OF CONVICTION.
(a) In General.--Section 101(a) (8 U.S.C. 1101(a)), as amended by
section 341(a), is amended by adding at the end the following new
paragraph:
``(48) The term `conviction' means a formal judgment of guilt entered
by a court or, if adjudication of guilt has been withheld, where all of
the following elements are present:
``(A) A judge or jury has found the alien guilty or
the alien has entered a plea of guilty or nolo
contendere or has admitted sufficient facts to warrant
a finding of guilt.
``(B) The judge has ordered some form of punishment,
penalty, or restraint on the alien's liberty to be
imposed.
``(C) A judgment or adjudication of guilt may be
entered if the alien violates the terms of the
probation or fails to comply with the requirements of
the court's order, without availability of further
proceedings regarding the alien's guilt or innocence of
the original charge.''.
(b) Effective Date.--The amendment made by subsection (a) shall apply
to convictions entered before, on, or after the date of the enactment
of this Act.
SEC. 352. IMMIGRATION JUDGES AND COMPENSATION.
(a) Definition of Term.--Paragraph (4) of section 101(b) (8 U.S.C.
1101(b)) is amended to read as follows:
``(4) The term `immigration judge' means an attorney whom the
Attorney General appoints as an administrative judge within the
Executive Office for Immigration Review, qualified to conduct specified
classes of proceedings, including a hearing under section 240. An
immigration judge shall be subject to such supervision and shall
perform such duties as the Attorney General shall prescribe, but shall
not be employed by the Immigration and Naturalization Service.''.
(b) Substitution for Term ``Special Inquiry Officer''.--The
Immigration and Nationality Act is amended by striking ``a special
inquiry officer'', ``special inquiry officer'', and ``special inquiry
officers'' and inserting ``an immigration judge'', ``immigration
judge'', and ``immigration judges'', respectively, each place it
appears in the following sections:
(1) Section 106(a)(2) (8 U.S.C. 1105a(a)(2)).
(2) Section 209(a)(2) (8 U.S.C. 1159(a)(2)).
(3) Section 234 (8 U.S.C. 1224), before redesignation by
section 308(b).
(4) Section 235 (8 U.S.C. 1225), before redesignation by
section 308(b).
(5) Section 236 (8 U.S.C. 1226), before amendment by section
303.
(6) Section 242(b) (8 U.S.C. 1252(b)), before amendment by
section 306(a)(2).
(7) Section 242(d)(1) (8 U.S.C. 1252(d)(1)), before amendment
by section 306(a)(2).
(8) Section 292 (8 U.S.C. 1362).
(c) Compensation for Immigration Judges.--
(1) In general.--There shall be four levels of pay for
immigration judges, under the Immigration Judge Schedule
(designated as IJ-1, 2, 3, and 4, respectively), and each such
judge shall be paid at one of those levels, in accordance with
the provisions of this subsection.
(2) Rates of pay.--
(A) The rates of basic pay for the levels established
under paragraph (1) shall be as follows:
IJ-1
70% of the next to highest rate
of basic pay for the
Senior Executive
Service
IJ-2
80% of the next to highest rate
of basic pay for the
Senior Executive
Service
IJ-3
90% of the next to highest rate
of basic pay for the
Senior Executive
Service
IJ-4
92% of the next to highest rate
of basic pay for the
Senior Executive
Service.
(B) Locality pay, where applicable, shall be
calculated into the basic pay for immigration judges.
(3) Appointment.--
(A) Upon appointment, an immigration judge shall be
paid at IJ-1, and shall be advanced to IJ-2 upon
completion of 104 weeks of service, to IJ-3 upon
completion of 104 weeks of service in the next lower
rate, and to IJ-4 upon completion of 52 weeks of
service in the next lower rate.
(B) The Attorney General may provide for appointment
of an immigration judge at an advanced rate under such
circumstances as the Attorney General may determine
appropriate.
(4) Transition.--Judges serving on the Immigration Court as
of the effective date shall be paid at the rate that
corresponds to the amount of time, as provided under paragraph
(3)(A), that they have served as an immigration judge.
(d) Effective Dates.--
(1) Subsections (a) and (b) shall take effect on the date of
the enactment of this Act.
(2) Subsection (c) shall take effect 90 days after the date
of the enactment of this Act.
SEC. 353. RESCISSION OF LAWFUL PERMANENT RESIDENT STATUS.
(a) In General.--Section 246(a) (8 U.S.C. 1256(a)) is amended by
adding at the end the following sentence: ``Nothing in this subsection
shall require the Attorney General to rescind the alien's status prior
to commencement of procedures to remove the alien under section 240,
and an order of removal issued by an immigration judge shall be
sufficient to rescind the alien's status.''.
(b) Effective Date.--The amendment made by subsection (a) shall take
effect on the title III-A effective date (as defined in section
309(a)).
SEC. 354. CIVIL PENALTIES FOR FAILURE TO DEPART.
(a) In General.--The Immigration and Nationality Act is amended by
inserting after section 274C the following new section:
``civil penalties for failure to depart
``Sec. 274D. (a) In General.--Any alien subject to a final order of
removal who--
``(1) willfully fails or refuses to--
``(A) depart from the United States pursuant to the
order,
``(B) make timely application in good faith for
travel or other documents necessary for departure, or
``(C) present for removal at the time and place
required by the Attorney General; or
``(2) conspires to or takes any action designed to prevent or
hamper the alien's departure pursuant to the order,
shall pay a civil penalty of not more than $500 to the Commissioner for
each day the alien is in violation of this section.
``(b) Construction.--Nothing in this section shall be construed to
diminish or qualify any penalties to which an alien may be subject for
activities proscribed by section 243(a) or any other section of this
Act.''.
(b) Clerical Amendment.--The table of contents is amended by
inserting after the item relating to section 274C the following new
item:
``Sec. 274D. Civil penalties for failure to depart.''.
(c) Effective Date.--The amendments made by subsection (a) shall
apply to actions occurring on or after the title III-A effective date
(as defined in section 309(a)).
SEC. 355. CLARIFICATION OF DISTRICT COURT JURISDICTION.
(a) In General.--Section 279 (8 U.S.C. 1329) is amended--
(1) by amending the first sentence to read as follows: ``The
district courts of the United States shall have jurisdiction of
all causes, civil and criminal, brought by the United States
that arise under the provisions of this title.'', and
(2) by adding at the end the following new sentence:
``Nothing in this section shall be construed as providing
jurisdiction for suits against the United States or its
agencies or officers.''.
(b) Effective Date.--The amendments made by subsection (a) shall
apply to actions filed after the date of the enactment of this Act.
SEC. 356. USE OF RETIRED FEDERAL EMPLOYEES FOR INSTITUTIONAL HEARING
PROGRAM.
(a) Authorization of Temporary Employment of Certain Annuitants and
Retirees.--For the purpose of performing duties in connection with
supporting the enhanced Institutional Hearing Program, the Attorney
General may employ for a period not to exceed 24 months (beginning 3
months after the date of the enactment of this Act) not more than 300
individuals (at any one time) who, by reason of separation from service
on or before January 1, 1995, are receiving--
(1) annuities under the provisions of subchapter III of
chapter 83 of title 5, United States Code, or chapter 84 of
such title;
(2) annuities under any other retirement system for employees
of the Federal Government; or
(3) retired or retainer pay as retired officers of regular
components of the uniformed services.
(b) No Reduction in Annuity or Retirement Pay or Redetermination of
Pay During Temporary Employment.--
(1) Retirees under civil service retirement system and
federal employees' retirement system.--In the case of an
individual employed under subsection (a) who is receiving an
annuity described in subsection (a)(1)--
(A) such individual's annuity shall continue during
the employment under subsection (a) and shall not be
increased as a result of service performed during that
employment;
(B) retirement deductions shall not be withheld from
such individual's pay; and
(C) such individual's pay shall not be subject to any
deduction based on the portion of such individual's
annuity which is allocable to the period of employment.
(2) Other federal retirees.--The President shall apply the
provisions of paragraph (1) to individuals who are receiving an
annuity described in subsection (a)(2) and who are employed
under subsection (a) in the same manner and to the same extent
as such provisions apply to individuals who are receiving an
annuity described in subsection (a)(1) and who are employed
under subsection (a).
(3) Retired officers of the uniform services.--The retired or
retainer pay of a retired officer of a regular component of a
uniformed service shall not be reduced under section 5532 of
title 5, United States Code, by reason of temporary employment
authorized under subsection (a).
SEC. 357. ENHANCED PENALTIES FOR FAILURE TO DEPART, ILLEGAL REENTRY,
AND PASSPORT AND VISA FRAUD.
(a) Failing to Depart.--The United States Sentencing Commission shall
promptly promulgate, pursuant to section 994 of title 28, United States
Code, amendments to the sentencing guidelines to make appropriate
increases in the base offense level for offenses under section 242(e)
and 276(b) of the Immigration and Nationality Act (8 U.S.C. 1252(e) and
1326(b)) to reflect the amendments made by section 130001 of the
Violent Crime Control and Law Enforcement Act of 1994.
(b) Passport and Visa Offenses.--The United States Sentencing
Commission shall promptly promulgate, pursuant to section 994 of title
28, United States Code, amendments to the sentencing guidelines to make
appropriate increases in the base offense level for offenses under
chapter 75 of title 18, United States Code to reflect the amendments
made by section 130009 of the Violent Crime Control and Law Enforcement
Act of 1994.
SEC. 358. AUTHORIZATION OF ADDITIONAL FUNDS FOR REMOVAL OF ALIENS.
In addition to the amounts otherwise authorized to be appropriated
for each fiscal year beginning with fiscal year 1996, there are
authorized to be appropriated to the Attorney General $150,000,000 for
costs associated with the removal of inadmissible or deportable aliens,
including costs of detention of such aliens pending their removal, the
hiring of more investigators, and the hiring of more detention and
deportation officers.
SEC. 359. APPLICATION OF ADDITIONAL CIVIL PENALTIES TO ENFORCEMENT.
(a) In General.--Subsection (b) of section 280 (8 U.S.C. 1330(b)) is
amended to read as follows:
``(b)(1) There is established in the general fund of the Treasury a
separate account which shall be known as the `Immigration Enforcement
Account'. Notwithstanding any other section of this title, there shall
be deposited as offsetting receipts into the Immigration Enforcement
Account amounts described in paragraph (2) to remain available until
expended.
``(2) The amounts described in this paragraph are the following:
``(A) The increase in penalties collected resulting from the
amendments made by sections 203(b) and 543(a) of the
Immigration Act of 1990.
``(B) Civil penalties collected under sections 240B(d), 274C,
274D, and 275(b).
``(3)(A) The Secretary of the Treasury shall refund out of the
Immigration Enforcement Account to any appropriation the amount paid
out of such appropriation for expenses incurred by the Attorney General
for activities that enhance enforcement of provisions of this title,
including--
``(i) the identification, investigation, apprehension,
detention, and removal of criminal aliens;
``(ii) the maintenance and updating of a system to identify
and track criminal aliens, deportable aliens, inadmissible
aliens, and aliens illegally entering the United States; and
``(iii) for the repair, maintenance, or construction on the
United States border, in areas experiencing high levels of
apprehensions of illegal aliens, of structures to deter illegal
entry into the United States.
``(B) The amounts which are required to be refunded under
subparagraph (A) shall be refunded at least quarterly on the basis of
estimates made by the Attorney General of the expenses referred to in
subparagraph (A). Proper adjustments shall be made in the amounts
subsequently refunded under subparagraph (A) to the extent prior
estimates were in excess of, or less than, the amount required to be
refunded under subparagraph (A).''.
(b) Immigration User Fee Account.--Section 286(h)(1)(B) (8 U.S.C.
1356(h)(1)(B)) is amended by striking ``271'' and inserting ``243(c),
271,''.
(c) Effective Date.--The amendments made by this section shall apply
to fines and penalties collected on or after the date of the enactment
of this Act.
SEC. 360. PRISONER TRANSFER TREATIES.
(a) Negotiation.--Congress advises the President to begin to
negotiate and renegotiate, not later than 90 days after the date of the
enactment of this Act, bilateral prisoner transfer treaties. The focus
of such negotiations shall be--
(1) to expedite the transfer of aliens unlawfully in the
United States who are (or are about to be) incarcerated in
United States prisons,
(2) to ensure that a transferred prisoner serves the balance
of the sentence imposed by the United States courts,
(3) to eliminate any requirement of prisoner consent to such
a transfer, and
(4) to allow the Federal Government or the States to keep
their original prison sentences in force so that transferred
prisoners who return to the United States prior to the
completion of their original United States sentences can be
returned to custody for the balance of their prison sentences.
In entering into such negotiations, the President may consider
providing for appropriate compensation in cases where the United States
is able to independently verify the adequacy of the sites where aliens
will be imprisoned and the length of time the alien is actually
incarcerated in the foreign country under such a treaty.
(b) Certification.--The President shall submit to the Congress,
annually, a certification as to whether each prisoner transfer treaty
in force is effective in returning aliens unlawfully in the United
States who have committed offenses for which they are incarcerated in
the United States to their country of nationality for further
incarceration.
SEC. 361. CRIMINAL ALIEN IDENTIFICATION SYSTEM.
(a) Operation and Purpose.--Subsection (a) of section 130002 of the
Violent Crime Control and Law Enforcement Act of 1994 (Public Law 103-
322) is amended to read as follows:
``(a) Operation and Purpose.--The Commissioner of Immigration and
Naturalization shall, under the authority of section 242(a)(3)(A) of
the Immigration and Nationality Act (8 U.S.C. 1252(a)(3)(A)), operate a
criminal alien identification system. The criminal alien identification
system shall be used to assist Federal, State, and local law
enforcement agencies in identifying and locating aliens who may be
subject to removal by reason of their conviction of aggravated
felonies, subject to prosecution under section 275 of such Act, not
lawfully present in the United States, or otherwise removable. Such
system shall include providing for recording of fingerprint records of
aliens who have been previously arrested and removed into appropriate
automated fingerprint identification systems.''.
(b) Identification of Criminal Aliens Unlawfully Present in the
United States.--Upon the request of the governor or chief executive
officer of any State, the Immigration and Naturalization Service shall
provide assistance to State courts in the identification of aliens
unlawfully present in the United States pending criminal prosecution.
SEC. 362. WAIVER OF EXCLUSION AND DEPORTATION GROUND FOR CERTAIN
SECTION 274C VIOLATORS.
(a) Exclusion Grounds.--Section 212 (8 U.S.C. 1182) is amended--
(1) by amending subparagraph (F) of subsection (a)(6) to read
as follows:
``(F) Subject of civil penalty.--
``(i) In general.--An alien who is the
subject of a final order for violation of
section 274C is inadmissible.
``(ii) Waiver authorized.--For provision
authorizing waiver of clause (i), see
subsection (d)(12).''; and
(2) by adding at the end of subsection (d) the following new
paragraph:
``(12) The Attorney General may, in the discretion of the Attorney
General for humanitarian purposes, to assure family unity, or when it
is otherwise in the public interest, waive application of clause (i) of
subsection (a)(6)(F)--
``(A) in the case of an alien lawfully admitted for permanent
residence who temporarily proceeded abroad voluntarily and not
under an order of deportation and who is otherwise admissible
to the United States as a returning resident under section
211(b), and
``(B) in the case of an alien seeking admission or adjustment
of status under section 201(b)(2)(A) or under section 203(a),
if the violation under section 274C was committed solely to assist,
aid, or support the alien's spouse, parent, son, or daughter (and not
another individual).''.
(b) Ground of Deportation.--Subparagraph (C) of section 241(a)(3) (8
U.S.C. 1251(a)(3)), before redesignation by section 305(a)(2), is
amended to read as follows:
``(C) Document fraud.--
``(i) In general.--An alien who is the
subject of a final order for violation of
section 274C is deportable.
``(ii) Waiver authorized.--The Attorney
General may waive clause (i) in the case of an
alien lawfully admitted for permanent residence
if the alien's civil money penalty under
section 274C was incurred solely to assist,
aid, or support the alien's spouse, parent,
son, or daughter (and no other individual).''.
SEC. 363. AUTHORIZING REGISTRATION OF ALIENS ON CRIMINAL PROBATION OR
CRIMINAL PAROLE.
Section 263(a) (8 U.S.C. 1303(a)) is amended by striking ``and (5)''
and inserting ``(5) aliens who are or have been on criminal probation
or criminal parole within the United States, and (6)''.
SEC. 364. CONFIDENTIALITY PROVISION FOR CERTAIN ALIEN BATTERED SPOUSES
AND CHILDREN.
(a) In General.--Except as provided in subsection (b), in no case may
the Attorney General, or any other official or employee of the
Department of Justice (including any bureau or agency of such
Department)--
(1) make an adverse determination of admissibility or
deportability of an alien under the Immigration and Nationality
Act using information furnished solely by--
(A) a spouse or parent who has battered the alien or
subjected the alien to extreme cruelty,
(B) a member of the spouse's or parent's family
residing in the same household as the alien who has
battered the alien or subjected the alien to extreme
cruelty when the spouse or parent consented to or
acquiesced in such battery or cruelty,
(C) a spouse or parent who has battered the alien's
child or subjected the alien's child to extreme cruelty
(without the active participation of the alien in the
battery or extreme cruelty), or
(D) a member of the spouse's or parent's family
residing in the same household as the alien who has
battered the alien's child or subjected the alien's
child to extreme cruelty when the spouse or parent
consented to or acquiesced in such battery or cruelty
and the alien did not actively participate in such
battery or cruelty,
unless the alien has been convicted of a crime or crimes listed
in section 241(a)(2) of the Immigration and Nationality Act; or
(2) permit use by or disclosure to anyone (other than a sworn
officer or employee of the Department, or bureau or agency
thereof, for legitimate Department, bureau, or agency purposes)
of any information which relates to an alien who is the
beneficiary of an application for relief under clause (iii) or
(iv) of section 204(a)(1)(A), clause (ii) or (iii) of section
204(a)(1)(B), section 216(c)(4)(C), or section 244(a)(3) of
such Act as an alien (or the parent of a child) who has been
battered or subjected to extreme cruelty.
The limitation under paragraph (2) ends when the application for relief
is denied and all opportunities for appeal of the denial have been
exhausted.
(b) Exceptions.--
(1) The Attorney General may provide, in the Attorney
General's discretion, for the disclosure of information in the
same manner and circumstances as census information may be
disclosed by the Secretary of Commerce under section 8 of title
13, United States Code.
(2) The Attorney General may provide in the discretion of the
Attorney General for the disclosure of information to law
enforcement officials to be used solely for a legitimate law
enforcement purpose.
(3) Subsection (a) shall not be construed as preventing
disclosure of information in connection with judicial review of
a determination in a manner that protects the confidentiality
of such information.
(4) Subsection (a)(2) shall not apply if all the battered
individuals in the case are adults and they have all waived the
restrictions of such subsection.
(c) Penalties for Violations.--Anyone who uses, publishes, or permits
information to be disclosed in violation of this section shall be fined
in accordance with title 18, United States Code, or imprisoned not more
than 5 years, or both.
TITLE IV--ENFORCEMENT OF RESTRICTIONS AGAINST EMPLOYMENT
SEC. 401. STRENGTHENED ENFORCEMENT OF THE EMPLOYER SANCTIONS
PROVISIONS.
(a) In General.--The number of full-time equivalent positions in the
Investigations Division within the Immigration and Naturalization
Service of the Department of Justice beginning in fiscal year 1996
shall be increased by 350 positions above the number of full-time
equivalent positions available to such Division as of September 30,
1994.
(b) Assignment.--Individuals employed to fill the additional
positions described in subsection (a) shall be assigned to investigate
violations of the employer sanctions provisions contained in section
274A of the Immigration and Nationality Act, including investigating
reports of violations received from officers of the Employment
Standards Administration of the Department of Labor.
SEC. 402. STRENGTHENED ENFORCEMENT OF WAGE AND HOUR LAWS.
(a) In General.--The number of full-time equivalent positions in the
Wage and Hour Division with the Employment Standards Administration of
the Department of Labor beginning in fiscal year 1996 shall be
increased by 150 positions above the number of full-time equivalent
positions available to the Wage and Hour Division as of September 30,
1994.
(b) Assignment.--Individuals employed to fill the additional
positions described in subsection (a) shall be assigned to investigate
violations of wage and hour laws in areas where the Attorney General
has notified the Secretary of Labor that there are high concentrations
of undocumented aliens.
SEC. 403. CHANGES IN THE EMPLOYER SANCTIONS PROGRAM.
(a) Reducing the Number of Documents Accepted for Employment
Verification.--Section 274A(b) (8 U.S.C. 1324a(b)) is amended--
(1) in paragraph (1)(B)--
(A) by adding ``or'' at the end of clause (i),
(B) by striking clauses (ii) through (iv), and
(C) in clause (v), by striking ``or other alien
registration card, if the card'' and inserting ``,
alien registration card, or other document designated
by regulation by the Attorney General, if the
document'' and redesignating such clause as clause
(ii);
(2) by amending subparagraph (C) of paragraph (1) to read as
follows:
``(C) Social security account number card as evidence
of employment authorization.--A document described in
this subparagraph is an individual's social security
account number card (other than such a card which
specifies on the face that the issuance of the card
does not authorize employment in the United States).'';
and
(3) by amending paragraph (2) to read as follows:
``(2) Individual attestation of employment authorization and
provision of social security account number.--The individual
must--
``(A) attest, under penalty of perjury on the form
designated or established for purposes of paragraph
(1), 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 Attorney General to be hired,
recruited, or referred for such employment; and
``(B) provide on such form the individual's social
security account number.''.
(b) Employment Eligibility Confirmation Process.--Section 274A (8
U.S.C. 1324a) is amended--
(1) in subsection (a)(3), by inserting ``(A)'' after
``Defense.--'', and by adding at the end the following:
``(B) Failure to seek and obtain confirmation.--Subject to
subsection (b)(7), in the case of a hiring of an individual for
employment in the United States by a person or entity that
employs more than 3 employees, the following rules apply:
``(i) Failure to seek confirmation.--
``(I) In general.--If the person or entity
has not made an inquiry, under the mechanism
established under subsection (b)(6), seeking
confirmation of the identity, social security
number, and work eligibility of the individual,
by not later than the end of 3 working days (as
specified by the Attorney General) after the
date of the hiring, the defense under
subparagraph (A) shall not be considered to
apply with respect to any employment after such
3 working days, except as provided in subclause
(II).
``(II) Special rule for failure of
confirmation mechanism.--If such a person or
entity in good faith attempts to make an
inquiry during such 3 working days in order to
qualify for the defense under subparagraph (A)
and the confirmation mechanism has registered
that not all inquiries were responded to during
such time, the person or entity can make an
inquiry in the first subsequent working day in
which the confirmation mechanism registers no
nonresponses and qualify for the defense.
``(ii) Failure to obtain confirmation.--If the person
or entity has made the inquiry described in clause
(i)(I) but has not received an appropriate confirmation
of such identity, number, and work eligibility under
such mechanism within the time period specified under
subsection (b)(6)(D)(iii) after the time the
confirmation inquiry was received, the defense under
subparagraph (A) shall not be considered to apply with
respect to any employment after the end of such time
period.'';
(2) by amending paragraph (3) of subsection (b) to read as
follows:
``(3) Retention of verification form and confirmation.--After
completion of such form in accordance with paragraphs (1) and
(2), the person or entity must--
``(A) retain the form and make it available for
inspection by officers of the Service, the Special
Counsel for Immigration-Related Unfair Employment
Practices, or the Department of Labor during a period
beginning on the date of the hiring, recruiting, or
referral of the individual and ending--
``(i) in the case of the recruiting or
referral for a fee (without hiring) of an
individual, three years after the date of the
recruiting or referral, and
``(ii) in the case of the hiring of an
individual--
``(I) three years after the date of
such hiring, or
``(II) one year after the date the
individual's employment is terminated,
whichever is later; and
``(B) subject to paragraph (7), if the person employs
more than 3 employees, seek to have (within 3 working
days of the date of hiring) and have (within the time
period specified under paragraph (6)(D)(iii)) the
identity, social security number, and work eligibility
of the individual confirmed in accordance with the
procedures established under paragraph (6), except that
if the person or entity in good faith attempts to make
an inquiry in accordance with the procedures
established under paragraph (6) during such 3 working
days in order to fulfill the requirements under this
subparagraph, and the confirmation mechanism has
registered that not all inquiries were responded to
during such time, the person or entity shall make an
inquiry in the first subsequent working day in which
the confirmation mechanism registers no
nonresponses.''; and
(3) by adding at the end of subsection (b) the following new
paragraphs:
``(6) Employment eligibility confirmation process.--
``(A) In general.--Subject to paragraph (7), the
Attorney General shall establish a confirmation
mechanism through which the Attorney General (or a
designee of the Attorney General which may include a
nongovernmental entity)--
``(i) responds to inquiries by employers,
made through a toll-free telephone line or
other electronic media in the form of an
appropriate confirmation code or otherwise, on
whether an individual is authorized to be
employed by that employer, and
``(ii) maintains a record that such an
inquiry was made and the confirmation provided
(or not provided).
``(B) Expedited procedure in case of no
confirmation.--In connection with subparagraph (A), the
Attorney General shall establish, in consultation with
the Commissioner of Social Security and the
Commissioner of the Service, expedited procedures that
shall be used to confirm the validity of information
used under the confirmation mechanism in cases in which
the confirmation is sought but is not provided through
the confirmation mechanism.
``(C) Design and operation of mechanism.--The
confirmation mechanism shall be designed and operated--
``(i) to maximize the reliability of the
confirmation process, and the ease of use by
employers, recruiters, and referrers,
consistent with insulating and protecting the
privacy and security of the underlying
information, and
``(ii) to respond to all inquiries made by
employers on whether individuals are authorized
to be employed by those employers, recruiters,
or referrers registering all times when such
response is not possible.
``(D) Confirmation process.--(i) As part of the
confirmation mechanism, the Commissioner of Social
Security shall establish a reliable, secure method,
which within the time period specified under clause
(iii), compares the name and social security account
number provided against such information maintained by
the Commissioner in order to confirm (or not confirm)
the validity of the information provided and whether
the individual has presented a social security account
number that is not valid for employment. The
Commissioner shall not disclose or release social
security information.
``(ii) As part of the confirmation mechanism, the
Commissioner of the Service shall establish a reliable,
secure method, which, within the time period specified
under clause (iii), compares the name and alien
identification number (if any) provided against such
information maintained by the Commissioner in order to
confirm (or not confirm) the validity of the
information provided and whether the alien is
authorized to be employed in the United States.
``(iii) For purposes of this section, the Attorney
General (or a designee of the Attorney General) shall
provide through the confirmation mechanism confirmation
or a tentative nonconfirmation of an individual's
employment eligibility within 3 working days of the
initial inquiry. In cases of tentative nonconfirmation,
the Attorney General shall specify, in consultation
with the Commissioner of Social Security and the
Commissioner of the Service, an expedited time period
not to exceed 10 working days within which final
confirmation or denial must be provided through the
confirmation mechanism in accordance with the
procedures under subparagraph (B).
``(iv) The Commissioners shall update their
information in a manner that promotes the maximum
accuracy and shall provide a process for the prompt
correction of erroneous information.
``(E) Protections.--(i) In no case shall an
individual be denied employment because of inaccurate
or inaccessible data under the confirmation mechanism.
``(ii) The Attorney General shall assure that there
is a timely and accessible process to challenge
nonconfirmations made through the mechanism.
``(iii) If an individual would not have been
dismissed from a job but for an error of the
confirmation mechanism, the individual will be entitled
to compensation through the mechanism of the Federal
Tort Claims Act.
``(F) Tester program.--As part of the confirmation
mechanism, the Attorney General shall implement a
program of testers and investigative activities
(similar to testing and other investigative activities
assisted under the fair housing initiatives program
under section 561 of the Housing and Community
Development Act of 1987 to enforce rights under the
Fair Housing Act) in order to monitor and prevent
unlawful discrimination under the mechanism.
``(G) Protection from liability for actions taken on
the basis of information provided by the employment
eligibility confirmation mechanism.--No person shall be
civilly or criminally liable for any action taken in
good faith reliance on information provided through the
employment eligibility confirmation mechanism
established under this paragraph (including any pilot
program established under paragraph (7)).
``(7) Application of confirmation mechanism through pilot
projects.--
``(A) In general.--Subsection (a)(3)(B) and paragraph
(3) shall only apply to individuals hired if they are
covered under a pilot project established under this
paragraph.
``(B) Undertaking pilot projects.--For purposes of
this paragraph, the Attorney General shall undertake
pilot projects for all employers in at least 5 of the 7
States with the highest estimated population of
unauthorized aliens, in order to test and assure that
the confirmation mechanism described in paragraph (6)
is reliable and easy to use. Such projects shall be
initiated not later than 6 months after the date of the
enactment of this paragraph. The Attorney General,
however, shall not establish such mechanism in other
States unless Congress so provides by law. The pilot
projects shall terminate on such dates, not later than
October 1, 1999, as the Attorney General determines. At
least one such pilot project shall be carried out
through a nongovernmental entity as the confirmation
mechanism.
``(C) Report.--The Attorney General shall submit to the
Congress annual reports in 1997, 1998, and 1999 on the
development and implementation of the confirmation mechanism
under this paragraph. Such reports may include an analysis of
whether the mechanism implemented--
``(i) is reliable and easy to use;
``(ii) limits job losses due to inaccurate or
unavailable data to less than 1 percent;
``(iii) increases or decreases discrimination;
``(iv) protects individual privacy with appropriate
policy and technological mechanisms; and
``(v) burdens individual employers with costs or
additional administrative requirements.''.
(c) Reduction of Paperwork for Certain Employees.--Section 274A(a) (8
U.S.C. 1324a(a)) is amended by adding at the end the following new
paragraph:
``(6) Treatment of documentation for certain employees.--
``(A) In general.--For purposes of paragraphs (1)(B)
and (3), if--
``(i) an individual is a member of a
collective-bargaining unit and is employed,
under a collective bargaining agreement entered
into between one or more employee organizations
and an association of two or more employers, by
an employer that is a member of such
association, and
``(ii) within the period specified in
subparagraph (B), another employer that is a
member of the association (or an agent of such
association on behalf of the employer) has
complied with the requirements of subsection
(b) with respect to the employment of the
individual,
the subsequent employer shall be deemed to have
complied with the requirements of subsection (b) with
respect to the hiring of the employee and shall not be
liable for civil penalties described in subsection
(e)(5).
``(B) Period.--The period described in this
subparagraph is--
``(i) up to 5 years in the case of an
individual who has presented documentation
identifying the individual as a national of the
United States or as an alien lawfully admitted
for permanent residence; or
``(ii) up to 3 years (or, if less, the period
of time that the individual is authorized to be
employed in the United States) in the case of
another individual.
``(C) Liability.--
``(i) In general.--If any employer that is a
member of an association hires for employment
in the United States an individual and relies
upon the provisions of subparagraph (A) to
comply with the requirements of subsection (b)
and the individual is an unauthorized alien,
then for the purposes of paragraph (1)(A),
subject to clause (ii), the employer shall be
presumed to have known at the time of hiring or
afterward that the individual was an
unauthorized alien.
``(ii) Rebuttal of presumption.--The
presumption established by clause (i) may be
rebutted by the employer only through the
presentation of clear and convincing evidence
that the employer did not know (and could not
reasonably have known) that the individual at
the time of hiring or afterward was an
unauthorized alien.''.
(d) Elimination of Dated Provisions.--Section 274A (8 U.S.C. 1324a)
is amended by striking subsections (i) through (n).
(e) Effective Dates.--
(1) Except as provided in this subsection, the amendments
made by this section shall apply with respect to hiring (or
recruiting or referring) occurring on or after such date (not
later than 180 days after the date of the enactment of this
Act) as the Attorney General shall designate.
(2) The amendments made by subsections (a)(1) and (a)(2)
shall apply with respect to the hiring (or recruiting or
referring) occurring on or after such date (not later than 18
months after the date of the enactment of this Act) as the
Attorney General shall designate.
(3) The amendment made by subsection (c) shall apply to
individuals hired on or after 60 days after the date of the
enactment of this Act.
(4) The amendment made by subsection (d) shall take effect on
the date of the enactment of this Act.
(5) Not later than 180 days after the date of the enactment
of this Act, the Attorney General shall issue regulations which
shall provide for the electronic storage of forms I-9, in
satisfaction of the requirements of section 274A(b)(3) of the
Immigration and Nationality Act as amended by this Act.
SEC. 404. REPORTS ON EARNINGS OF ALIENS NOT AUTHORIZED TO WORK.
Subsection (c) of section 290 (8 U.S.C. 1360) is amended to read as
follows:
``(c)(1) Not later than 3 months after the end of each fiscal year
(beginning with fiscal year 1995), the Commissioner of Social Security
shall report to the Committees on the Judiciary of the House of
Representatives and the Senate on the aggregate number of social
security account numbers issued to aliens not authorized to be employed
to which earnings were reported to the Social Security Administration
in such fiscal year.
``(2) If earnings are reported on or after January 1, 1996, to the
Social Security Administration on a social security account number
issued to an alien not authorized to work in the United States, the
Commissioner of Social Security shall provide the Attorney General with
information regarding the name and address of the alien, the name and
address of the person reporting the earnings, and the amount of the
earnings. The information shall be provided in an electronic form
agreed upon by the Commissioner and the Attorney General.''.
SEC. 405. AUTHORIZING MAINTENANCE OF CERTAIN INFORMATION ON ALIENS.
Section 264 (8 U.S.C. 1304) is amended by adding at the end the
following new subsection:
``(f) Notwithstanding any other provision of law, the Attorney
General is authorized to require any alien to provide the alien's
social security account number for purposes of inclusion in any record
of the alien maintained by the Attorney General or the Service.''.
SEC. 406. LIMITING LIABILITY FOR CERTAIN TECHNICAL VIOLATIONS OF
PAPERWORK REQUIREMENTS.
(a) In General.--Section 274A(e)(1) (8 U.S.C. 1324a(e)(1)) is
amended--
(1) by striking ``and'' at the end of subparagraph (C),
(2) by striking the period at the end of subparagraph (D) and
inserting ``, and'', and
(3) by adding at the end the following new subparagraph:
``(E) under which a person or entity shall not be
considered to have failed to comply with the
requirements of subsection (b) based upon a technical
or procedural failure to meet a requirement of such
subsection in which there was a good faith attempt to
comply with the requirement unless (i) the Service (or
another enforcement agency) has explained to the person
or entity the basis for the failure, (ii) the person or
entity has been provided a period of not less than 10
business days (beginning after the date of the
explanation) within which to correct the failure, and
(iii) the person or entity has not corrected the
failure voluntarily within such period, except that
this subparagraph shall not apply with respect to the
engaging by any person or entity of a pattern or
practice of violations of subsection (a)(1)(A) or
(a)(2).''.
(b) Effective Date.--The amendments made by subsection (a) shall
apply to failures occurring on or after the date of the enactment of
this Act.
SEC. 407. UNFAIR IMMIGRATION-RELATED EMPLOYMENT PRACTICES.
(a) Requiring Certain Remedies in Unfair Immigration-Related
Discrimination Orders.--Section 274B(g)(2) (8 U.S.C. 1324b(g)(2)) is
amended--
(1) in subparagraph (A), by adding at the end the following:
``Such order also shall require the person or entity to comply
with the requirements of clauses (ii) and (vi) of subparagraph
(B).'';
(2) in subparagraph (B), by striking ``Such an order'' and
inserting ``Subject to the second sentence of subparagraph (A),
such an order''; and
(3) in subparagraph (B)(vi), by inserting before the
semicolon at the end the following: ``and to certify the fact
of such education''.
(b) Treatment of Certain Documentary Practice as Employment
Practices.--Section 274B(a)(6) (8 U.S.C. 1324b(a)(6)) is amended--
(1) by striking ``For'' and inserting ``(A) Subject to
subparagraph (B), for'', and
(2) by adding at the end the following new subparagraph:
``(B) A person or other entity--
``(i) may request a document proving a renewal of
employment authorization when an individual has
previously submitted a time-limited document to satisfy
the requirements of section 274A(b)(1); or
``(ii) if possessing reason to believe that an
individual presenting a document which reasonably
appears on its face to be genuine is nonetheless an
unauthorized alien, may (I) inform the individual of
the question about the document's validity, and of such
person or other entity's intention to verify the
validity of such document, and (II) upon receiving
confirmation that the individual is unauthorized to
work, may dismiss the individual with no benefits or
rights accruing on the basis of the period employed.
Nothing in this provision prohibits an individual from offering
alternative documents that satisfy the requirements of section
274A(b)(1).''.
(c) Effective Date.--The amendments made by subsection (a) shall
apply to orders issued on or after the first day of the first month
beginning at least 90 days after the date of the enactment of this Act.
TITLE V--REFORM OF LEGAL IMMIGRATION SYSTEM
SEC. 500. OVERVIEW OF NEW LEGAL IMMIGRATION SYSTEM.
This title amends the legal immigration provisions of the Immigration
and Nationality Act so as to provide for the following (beginning with
fiscal year 1997):
(1) Division of immigration among 3 categories.--There will
be a worldwide level of immigration of approximately 562,000,
divided among--
(A) family-sponsored immigrants, with a worldwide
annual numerical limitation (after a transition) of
approximately 330,000,
(B) employment-based immigrants, with a worldwide
annual numerical limitation of 135,000,
(C) diversity immigrants, with a worldwide annual
numerical limitation of 27,000, and
(D) humanitarian immigrants, with a worldwide annual
numerical limitation (after a transition) of
approximately 70,000.
Congress is required to reevaluate and reauthorize these
numbers every 5 years.
(2) Family-sponsored immigrants.--
(A) Categories.--Family-sponsored immigrants are (i)
spouses and children of citizens, (ii) spouses and
children of permanent resident aliens, (iii) parents of
adult United States citizens if the parents meet
certain insurance requirements, and (iv) sons or
daughters of United States citizens or sons or
daughters of permanent resident aliens who have never
been married, are childless, but for the residence
requirements would qualify as dependents for Federal
income tax purposes, and are at least 21 but not more
than 25 years of age.
(B) Numerical limitations.--
(i) There will be no direct numerical limit
on admission of spouses and children of United
States citizens.
(ii) The annual numerical limit on admission
of spouses and children of permanent residents
will not be below 85,000.
(iii) The annual numerical limit on admission
of parents of United States citizens will not
be below 25,000.
(3) Employment-based immigrants.--Employment-based immigrants
will fall within the following categories and numerical
limitations:
(A) Extraordinary immigrants.--First, aliens with
extraordinary ability, up to 15,000 each year.
(B) Outstanding professors and researchers and
multinational executives.--Second, aliens who are
outstanding professors and researchers or multinational
executives or managers, up to 30,000 each year, plus
any left from the previous category.
(C) Professionals with advanced degrees or
exceptional ability aliens.--Third, aliens who are
members of the professions holding advanced degrees or
who have exceptional ability, up to 30,000 each year,
plus any left from the previous categories.
(D) Other professionals and skilled workers.--Fourth,
aliens who are skilled workers with at least 4 years of
training and work experience or are professionals with
a baccalaureate degree and at least 2 years'
experience, up to 45,000 each year, plus any left from
the previous categories.
(E) Investors.--Fifth, aliens who are investing at
least $1,000,000 in enterprises in the United States
that will employ at least 10 workers, up to 10,000 each
year (with a 2-year pilot program for those investing
at least $500,000 in enterprises employing at least 5
workers).
(F) Certain special immigrants.--Lastly, aliens who
fall within certain classes of special immigrants (such
as religious ministers, aliens who have worked for the
Government abroad, certain long-term alien employees of
international organizations, certain dependent
juveniles, and certain long-term alien members of the
Armed Forces), up to 5,000 each year.
(4) Diversity immigrants.--Diversity immigrants are chosen
from the 10 countries in each region with the highest demand
for diversity visas by random selection.
(5) Humanitarian immigrants.--Humanitarian immigrants will
fall within the following categories and numerical limitations:
(A) Refugees.--Refugees, subject to a numerical
limitation (after a transition and excluding emergency
refugees) of 50,000 or such higher number as the
Congress may provide by law.
(B) Asylees.--Aliens seeking asylum, subject to no
numerical limitation in any year. As under current law,
asylees may adjust to permanent residence status at a
rate of up to 10,000 each year.
(C) Other humanitarian immigrants.--Other immigrants
who are of special humanitarian concern to the United
States, up to 10,000 each year.
(6) Transition.--
(A) Additional visa numbers for spouses and minor,
unmarried children of permanent resident aliens.--In
order to reduce the current backlog for spouses and
minor, unmarried children of lawful permanent
residents, there will be at least an additional 50,000
immigrant visa numbers made available for these aliens
for each of 5 fiscal years, with priority for spouses
and children of aliens who did not participate in a
legalization program.
(B) Phase-down in normal flow refugee numerical
limitation.--The annual numerical limitation on non-
emergency refugees (without specific approval of
Congress) will be phased down to 75,000 in fiscal year
1997 and 50,000 in fiscal year 1998 and thereafter.
Subtitle A--Worldwide Numerical Limits
SEC. 501. WORLDWIDE NUMERICAL LIMITATION ON FAMILY-SPONSORED
IMMIGRANTS.
(a) Overview.--
(1) The amendment made by subsection (b) provides for a
worldwide level of family-sponsored immigrants of 330,000 less
the number of spouses and children of citizens admitted in the
previous year.
(2) However, there will be no limit on spouses and children
of citizens, nor would the number of visas available to spouses
and children of lawful permanent residents go below 85,000, nor
would the number of visas available to parents of citizens go
below 25,000.
(3) Any excess in family immigration above 330,000 would come
from other unused visas and, if necessary, from future visa
numbers.
(4) If there are any remaining family visas, these visas
would be added to the visas made available to spouses and
children of lawful permanent resident aliens.
(b) Amendment.--Subsection (c) of section 201 (8 U.S.C. 1151) is
amended to read as follows:
``(c) Worldwide Level of Family-Sponsored Immigrants.--
``(1) In general.--Subject to the succeeding provisions of
this subsection, the worldwide level of family-sponsored
immigrants under this subsection (in this subsection referred
to as the `worldwide family level') for a fiscal year is
330,000.
``(2) Reduction for spouses and children of united states
citizens and certain other family-related immigrants.--The
worldwide family level for a fiscal year shall be reduced (but
not below a number sufficient to provide for the minimum visa
numbers described in paragraph (4)) by the number of aliens
described in subsection (b)(2) who were issued immigrant visas
or who otherwise acquired the status of aliens lawfully
admitted to the United States for permanent residence in the
previous fiscal year.
``(3) Further reduction for any previous excess family
immigration.--
``(A) In general.--If there are excess family
admissions in a particular fiscal year (as determined
under subparagraph (B)) beginning with fiscal year
1997, then for the following fiscal year the worldwide
family level shall be reduced (but not below a number
sufficient to provide for the minimum visa numbers
described in paragraph (4)) by the net number of excess
admissions in that particular fiscal year (as defined
in subparagraph (C)).
``(B) Determination of excess family admissions.--For
purposes of subparagraph (A), there are excess family
admissions in a fiscal year if--
``(i) the number of aliens who are issued
immigrant visas or who otherwise acquire the
status of aliens lawfully admitted to the
United States for permanent residence under
section 203(a) or subsection (b)(2) in a fiscal
year, exceeds
``(ii) 330,000, less the carryforward number
of excess admissions for the previous fiscal
year (as defined in subparagraph (D)).
For purposes of this subparagraph, immigrant visa
numbers issued under section 553 of the Immigration in
the National Interest Act of 1995 (relating to certain
transition immigrants) shall not be counted under
clause (i).
``(C) Net number of excess admissions.--For purposes
of subparagraph (A), the `net number of excess
admissions' for a fiscal year is--
``(i) the excess described in subparagraph
(B) for the fiscal year, reduced (but not below
zero) by
``(ii) the number (if any) by which the
worldwide level under subsection (d) for the
previous fiscal year exceeds the number of
immigrants who are issued immigrant visas or
who otherwise acquire the status of aliens
lawfully admitted to the United States for
permanent residence under section 203(b) in
that previous fiscal year.
``(D) Carryforward number of excess admissions.--For
purposes of subparagraph (B)(ii), the carryforward
number of excess admissions for a particular fiscal
year is the net number of excess admissions for the
previous fiscal year (as defined in subparagraph (C)),
reduced by the reductions effected under subparagraph
(A) and paragraph (5) in visa numbers for the
particular fiscal year.
``(4) No reduction in number of spouses and children of
lawful permanent residents or parents of united states
citizens.--
``(A) Spouses and children of lawful permanent
residents.--Any reductions in the worldwide family
level for a fiscal year under paragraph (2) or (3)
shall not reduce the number of visas available to
spouses and children of lawful permanent residents
below 85,000.
``(B) Parents of united states citizens.--Any
reductions in the worldwide family level for a fiscal
year under paragraph (2) or (3) shall not reduce the
number of visas available to parents of United States
citizens below 25,000.
``(5) Adjustment in certain employment-based visa numbers in
case of remaining excess family admissions.--
``(A) In general.--If there is a remaining excess
number of family admissions (as described in
subparagraph (B)) in a fiscal year (beginning with
fiscal year 1997) that is greater than zero, then for
the following fiscal year there shall be reductions in
immigrant visa numbers made available under subsection
(d) and section 203(b)(4) by the lesser of--
``(i) the remaining excess number of family
admissions (described in subparagraph (B)), or
``(ii) \1/2\ of the maximum number of visa
numbers that could (but for this paragraph)
otherwise be made available under section
203(b)(5) in such following fiscal year.
``(B) Remaining excess number of family admissions
described.--For purposes of subparagraph (A), the
`remaining excess number of family admissions' in a
fiscal year is the net number of excess admissions for
the fiscal year (as defined in paragraph (3)(C)),
reduced by the reduction (if any) effected under
paragraph (3) in visa numbers for the succeeding fiscal
year.''.
SEC. 502. WORLDWIDE NUMERICAL LIMITATION ON EMPLOYMENT-BASED
IMMIGRANTS.
Subsection (d) of section 201 (8 U.S.C. 1151) is amended to read as
follows:
``(d) Worldwide Level of Employment-Based Immigrants.--The worldwide
level of employment-based immigrants under this subsection for a fiscal
year is--
``(1) 135,000, minus
``(2) beginning with fiscal year 1998, the total of the
reductions (if any) in visa numbers under section 203(a)(3)(C)
made for the fiscal year pursuant to subsection (c)(5) and in
visa numbers under this subsection for the fiscal year pursuant
to section 203(a)(3)(B)(ii)(II).''.
SEC. 503. WORLDWIDE NUMERICAL LIMITATION ON DIVERSITY IMMIGRANTS.
Subsection (e) of section 201 (8 U.S.C. 1151) is amended to read as
follows:
``(e) Worldwide Level of Diversity Immigrants.--The worldwide level
of diversity immigrants is equal to 27,000 for each fiscal year.''.
SEC. 504. ESTABLISHMENT OF NUMERICAL LIMITATION ON HUMANITARIAN
IMMIGRANTS.
(a) In General.--Section 201 (8 U.S.C. 1151) is amended--
(1) in subsection (a)--
(A) by striking ``and'' at the end of paragraph (2),
(B) by striking the period at the end of paragraph
(3) and inserting ``; and'', and
(C) by adding at the end the following new paragraph:
``(4) for fiscal years beginning with fiscal year 1997,
humanitarian immigrants described in section 203(e) (or who are
admitted under section 211(a) on the basis of a prior issuance
of a visa to their accompanying parent under section 203(e)) in
a number not to exceed in any fiscal year the number specified
in subsection (f) for that year, and not to exceed in any of
the first 3 quarters of any fiscal year 27 percent of the
worldwide level under such subsection for all of such fiscal
year.''; and
(2) by adding at the end the following new subsection:
``(f) Worldwide Level of Humanitarian Immigrants.--
``(1) In general.--Subject to the succeeding provisions of
this subsection, the worldwide level of humanitarian immigrants
(in this subsection referred to as the `worldwide humanitarian
level') under this subsection for a fiscal year is equal to
70,000.
``(2) Reduction for humanitarian immigrants who are refugees
or asylees.--The worldwide humanitarian level for a fiscal year
shall be reduced by the sum of--
``(A) 50,000, or, if less, the number of aliens who
were admitted as refugees under section 207 in the
previous fiscal year, and
``(B) the number of aliens who had been granted
asylum whose status was adjusted in the previous fiscal
year under section 209(b).
``(3) Reduction for prior year cancellation of removal and
registry.--The worldwide humanitarian level for a fiscal year
shall be further reduced by the sum of--
``(A) the number of aliens whose removal was canceled
and who were provided lawful permanent resident status
in the previous fiscal year under section 240A, and
``(B) the number of aliens who were provided
permanent resident status in the previous fiscal year
under section 249.
``(4) Limitation.--In no case shall the worldwide
humanitarian level for a fiscal year (taking into account any
reductions under paragraphs (2) and (3)) exceed 10,000.''.
(b) Transition.--In determining the worldwide humanitarian level
under section 201(f) of the Immigration and Nationality Act for fiscal
year 1997, the reference in paragraph (3)(A) of such section to
`section 240A' is deemed a reference to `section 244(a)'.
SEC. 505. REQUIRING CONGRESSIONAL REVIEW AND REAUTHORIZATION OF
WORLDWIDE LEVELS EVERY 5 YEARS.
Section 201 (8 U.S.C. 1151) is further amended by adding at the end
the following new subsection:
``(g) Requirement for Periodic Review and Reauthorization of
Worldwide Levels.--
``(1) Congressional review.--The Committees on the Judiciary
of the House of Representatives and of the Senate shall
undertake during fiscal year 2004 (and each fifth fiscal year
thereafter) a thorough review of the appropriate worldwide
levels of immigration to be provided under this section during
the 5-fiscal-year period beginning with the second subsequent
fiscal year.
``(2) Congressional reauthorization.--The Congress, after
consideration of the reviews under paragraph (1) and by
amendment to this section, shall specify the appropriate
worldwide levels of immigration to be provided under this
section during the 5-fiscal-year period beginning with the
second subsequent fiscal year.
``(3) Sunset in absence of reauthorization.--The worldwide
levels specified under the previous provisions of this section
are applicable only to fiscal years 1997 through 2005.
Immigrant visa numbers for fiscal years after fiscal year 2005
that are subject to such levels are only authorized to the
extent provided by amendment under paragraph (2) made to this
section.''.
Subtitle B--Changes in Preference System
SEC. 511. LIMITATION OF IMMEDIATE RELATIVES TO SPOUSES AND CHILDREN.
(a) Reclassification.--Section 201(b)(2)(A) (8 U.S.C. 1151(b)(2)(A))
is amended--
(1) in clause (i)--
(A) by striking ``Immediate relatives.--'' and all
that follows through the end of the first sentence and
inserting ``An alien who is a spouse or child of a
citizen of the United States.'', and
(B) in the second sentence, by striking ``an
immediate relative'' and inserting ``a spouse of a
citizen of the United States''; and
(2) in clause (ii), by striking ``such an immediate
relative'' and inserting ``a spouse of a citizen of the United
States''.
(b) Protection of Certain Children from Aging Out of Preference
Status.--
(1) In general.--Section 204 (8 U.S.C. 1154) is amended by
adding at the end the following new subsection:
``(i) For purposes of applying section 101(b)(1) in the case of
issuance of an immigrant visa to, or admission or adjustment of status
of, an alien under section 201(b)(2)(A), section 203(a)(1), or 203(e)
as a child of a citizen of the United States or a permanent resident
alien, the age of the alien shall be determined as of the date of the
filing of the classification petition under section 204(a)(1) as such a
child of a citizen of the United States or a permanent resident
alien.''.
(2) Effective date.--The amendment made by paragraph (1)
shall apply to immigrant visas issued on or after October 1,
1996.
SEC. 512. CHANGE IN FAMILY-SPONSORED CLASSIFICATION.
(a) In General.--Section 203(a) (8 U.S.C. 1153(a)) is amended by
striking paragraphs (1) through (4) and inserting the following:
``(1) Spouses and children of lawful permanent resident
aliens.--Immigrants who are the spouses and children of an
alien lawfully admitted for permanent residence shall be
allocated visas in a number not to exceed 85,000, plus any
immigrant visas not used under paragraphs (2) and (3).
``(2) Parents of united states citizens.--
``(A) In general.--Immigrants who are the parents of
an individual who is at least 21 years of age and a
citizen of the United States shall be allocated visas
in a number, which is not less than 25,000 and does not
exceed the lesser of--
``(i) 45,000, or
``(ii) the number by which the worldwide
level exceeds 85,000.
``(B) Reference to insurance requirement.--For
requirement relating to insurance for parents, see
section 212(a)(4)(D).
``(3) Adult sons and daughters.--
``(A) In general.--Immigrants who are the qualifying
adult sons or daughters (as defined in subparagraph
(C)) of an individual who is (i) at least 21 years of
age and (ii) either a citizen of the United States or
an alien lawfully admitted for permanent residence
shall be allocated visas according to the levels
established in subparagraph (B).
``(B) Allocation of visas to adult sons and daughters
of united states citizens and permanent resident
aliens.--
``(i) In general.--Subject to clause (ii),
any remaining visas shall be allocated under
this paragraph in a number not to exceed the
lesser of--
``(I) 5,000, or
``(II) the number by which the
worldwide level exceeds the sum of
85,000 and the number of immigrant
visas used under paragraph (2).
``(ii) Allocation of additional visa
numbers.--
``(I) In general.--If the demand for
visa numbers under this paragraph
exceeds the number (if any) available
under clause (i) in any fiscal year, an
additional number of visas shall be
made available under this paragraph,
but not to exceed 5,000 additional
visas numbers in any fiscal year.
``(II) Offsetting reduction in the
levels of employment-based visas.--If
an additional number of visa numbers
are made available under subclause (I)
in a fiscal year, the number of visas
made available under section 201(a)(2)
and paragraphs (1) through (6) of
subsection (b) in the fiscal year shall
be reduced by a number equal to such
additional number reduced by the amount
(if any) by which 110,000 exceeds the
number of immigrant visas used under
paragraphs (1) and (2) of this
subsection in the fiscal year. The
reduction under each such paragraph of
subsection (b) shall be in the same
proportion to the total reduction as
the ratio of the numerical limitation
under each such paragraph specified
under such subsection to the worldwide
level of employment-based immigrants
(as specified in section 201(d)).
``(C) Qualifications.--For purposes of this
paragraph, the term `qualifying adult son or daughter'
means an immigrant who, as of the date of approval of
the classification petition under section 204(a)(1)--
``(i) is at least 21, but not more than 25
years of age,
``(ii) has never been married,
``(iii) is childless, and
``(iv) would qualify as a dependent of the
petitioning individual for Federal income tax
purposes, except that the immigrant does not
meet the residence requirements.
``(D) Three-year conditional requirement.--
``(i) Conditional basis for status.--
Notwithstanding any other provision of this
Act, an alien provided lawful permanent
residence status on the basis of being a
qualifying adult son or daughter shall be
considered, at the time of obtaining the status
of an alien lawfully admitted for permanent
residence, to have obtained such status on a
conditional basis subject to the provisions of
this subparagraph.
``(ii) Requirements of notice and petitioning
for removal of conditional status.--The
Attorney General shall establish, by
regulation, procedures which incorporate the
requirements of notice and petitioning for
removal of conditional status similar to the
requirements for removal of conditional status
under section 216A.
``(iii) Termination of status.--In the case
of an alien with permanent resident status on a
conditional basis under clause (i), the alien
must demonstrate that the alien met the
qualifications set forth in subparagraph (C) as
of the date of approval of the classification
petition under section 204(a). In the absence
of such a demonstration by the alien, the
alien's status shall be terminated.
``(iv) Special rule.--In applying section
216A under this subparagraph, any reference to
the `second' anniversary in such section is
deemed a reference to the `third'
anniversary.''.
(b) Insurance Requirement.--Section 212(a)(4) (8 U.S.C. 1182(a)(4)),
as amended by section 621(a), is amended by adding at the end the
following new subparagraph:
``(D) Insurance requirements for parents.--
``(i) In general.--Any alien who seeks
admission as a parent under section 203(a)(2)
is inadmissible unless the alien demonstrates
at the time of issuance of the visa (and at the
time of admission) to the satisfaction of the
consular officer and the Attorney General that
the alien--
``(I) will have coverage under an
adequate health insurance policy (at
least comparable to coverage provided
under the medicare program under title
XVIII of the Social Security Act), and
``(II) will have coverage with
respect to long-term health needs (at
least comparable to such coverage
provided under the medicaid program
under title XIX of such Act for the
State in which either the alien intends
to reside or in which the petitioner,
on behalf of the alien under section
204(a)(1), resides),
throughout the period the individual is
residing in the United States.
``(ii) Factors to be taken into account.--In
making a determination under clause (i), the
Attorney General shall take into account the
age of the parent and the likelihood of the
parent securing health insurance coverage
through employment.''.
SEC. 513. CHANGE IN EMPLOYMENT-BASED CLASSIFICATION.
(a) In General.--Section 203(b) (8 U.S.C. 1153(b)) is amended--
(1) by redesignating paragraph (6) as paragraph (7);
(2) by striking paragraphs (1) through (5) and inserting the
following:
``(1) Aliens with extraordinary ability.--Visas shall first
be made available in a number not to exceed 15,000 of such
worldwide level to immigrants--
``(A) who have extraordinary ability in the sciences,
arts, education, business, or athletics which has been
demonstrated by sustained national or international
acclaim and whose achievements have been recognized in
the field through sufficient documentation,
``(B) who seek to be admitted into the United States
to continue work in the area of extraordinary ability,
and
``(C) whose admission into the United States will
substantially benefit prospectively the United States.
``(2) Aliens who are outstanding professors and researchers
or multinational executives and managers.--
``(A) In general.--Visas shall be made available, in
a number not to exceed 30,000 of such worldwide level,
plus any visas not required for the class specified in
paragraph (1), to immigrants who are aliens described
in subparagraph (B) or (C).
``(B) Outstanding professors and researchers.--An
alien is described in this subparagraph if--
``(i) the alien is recognized internationally
as outstanding in a specific academic area,
``(ii) the alien has at least 3 years of
experience in teaching or research in the
academic area, and
``(iii) the alien seeks to enter the United
States--
``(I) for a tenured position (or
tenure-track position) within a
university or institution of higher
education to teach in the academic
area,
``(II) for a comparable position with
a university or institution of higher
education to conduct research in the
area, or
``(III) for a comparable position to
conduct research in the area with a
department, division, or institute of a
private employer, if the department,
division, or institute employs at least
3 persons full-time in research
activities and has achieved documented
accomplishments in an academic field.
``(C) Certain multinational executives and
managers.--An alien is described in this
subparagraph if the alien, in the 3 years
preceding the time of the alien's application
for classification and admission into the
United States under this subparagraph, has been
employed for at least 1 year by a firm or
corporation or other legal entity or an
affiliate or subsidiary thereof and the alien
seeks to enter the United States in order to
continue to render services to the same
employer or to a subsidiary or affiliate
thereof in a capacity that is managerial or
executive.
``(3) Aliens who are members of the professions holding
advanced degrees or aliens of exceptional ability.--
``(A) In general.--Visas shall be made available, in
a number not to exceed 30,000 of such worldwide level,
plus any visas not required for the classes specified
in paragraphs (1) and (2), to immigrants who are aliens
described in subparagraph (B).
``(B) Aliens who are members of the professions
holding advanced degrees or aliens of exceptional
ability.--
``(i) In general.--An alien is described in
this subparagraph if the alien is a member of a
profession holding an advanced degree or its
equivalent or who because of exceptional
ability in the sciences, arts, or business will
substantially benefit prospectively the
national economy, cultural or educational
interests, or welfare of the United States, and
whose services in the sciences, arts,
professions, or business are sought by an
employer in the United States.
``(ii) Determination of exceptional
ability.--In determining under clause (i)
whether an immigrant has exceptional ability,
the possession of a degree, diploma,
certificate, or similar award from a college,
university, school, or other institution of
learning or a license to practice or
certification for a particular profession or
occupation shall not by itself be considered
sufficient evidence of such exceptional
ability.
``(iii) Labor certification required.--An
immigrant visa may not be issued to an
immigrant under this subparagraph until the
consular officer is in receipt of a
determination made by the Secretary of Labor
pursuant to the provisions of section
212(a)(5)(A).
``(iv) National interest waiver.--The
Attorney General may waive the requirement
under clause (iii) and the requirement under
clause (i) that an alien's services be sought
by an employer in the United States only if--
``(I) such a waiver is necessary to
substantially benefit--
``(aa) the national security,
national defense, or Federal,
State, or local law
enforcement;
``(bb) health care, housing,
or educational opportunities
for an indigent or low-income
population or in an underserved
geographical area;
``(cc) economic or employment
opportunities for a specific
industry or a specific
geographical area;
``(dd) the development of new
technologies; or
``(ee) environmental
protection or the productive
use of natural resources, and
``(II) the alien will engage in a
specific undertaking to advance one or
more of the interests under subclause
(I).
``(4) Skilled workers and professionals.--
``(A) In general.--Visas shall be made available, in
a number not to exceed 45,000 of such worldwide level,
plus any visas not required for the classes specified
in paragraphs (1) through (3) to immigrants who are
described in subparagraph (B) or (C).
``(B) Skilled workers.--An alien described in this
subparagraph is an immigrant who is capable, at the
time a petition is filed, of performing skilled labor
(requiring at least 2 years of training or experience),
not of a temporary or seasonal nature, for which
qualified workers are not available in the United
States, and who has a total of 4 years of training or
experience (or both) with respect to such labor.
``(C) Professionals.--
``(i) In general.--An alien described in this
subparagraph is an immigrant who holds a
baccalaureate degree and is a member of the
professions and, subject to clause (ii), has at
least 2 years of experience in the profession
after the receipt of the degree.
``(ii) Special rule for language teachers.--
An alien who is a teacher and has (within the
previous 5 years) at least 2 years of
experience teaching a language (other than
English) full-time at an accredited elementary
or middle school may be classified and admitted
as a professional under this subparagraph if
the alien is seeking admission to teach such
language full-time in an accredited elementary
or middle school.
``(D) Labor certification required.--An immigrant
visa may not be issued to an immigrant under this
paragraph until the consular officer is in receipt of a
determination made by the Secretary of Labor pursuant
to the provisions of section 212(a)(5)(A).
``(E) Experience requirement.--Any period of
experience acquired as a nonimmigrant under section
101(a)(15)(E), 101(a)(15)(H)(i), or 101(a)(15)(L) may
be used to fulfill a requirement for experience under
this paragraph.
``(5) Investors in job creation.--
``(A) In general.--Visas shall be made available, in
a number not to exceed 10,000 of such worldwide level
less the reduction in visa numbers under this paragraph
required to be effected under section 201(c)(5)(A) for
the fiscal year involved, to immigrants seeking to
enter the United States for the purpose of engaging in
a new commercial enterprise--
``(i) which the alien has established,
``(ii) in which the alien has invested (after
the date of the enactment of the Immigration
Act of 1990), or is actively in the process of
investing, capital in an amount not less
$1,000,000, and
``(iii) which will benefit the United States
economy and create full-time employment for not
fewer than 10 United States citizens or aliens
lawfully admitted for permanent residence or
other immigrants lawfully authorized to be
employed in the United States (other than the
immigrant and the immigrant's spouse, sons, or
daughters).
``(B) Pilot program.--For each of fiscal years 1997
and 1998, up to 2,000 visas otherwise made available
under this paragraph shall be made available to
immigrants who would be described in subparagraph (A)
if `$500,000' were substituted for `$1,000,000' in
subparagraph (A)(ii) and if `for not fewer than 5' were
substituted for `for not fewer than 10' in subparagraph
(A)(iii). By not later than April 1, 1998, the Attorney
General shall submit to Congress a report on the
operation of this subparagraph and shall include in the
report information describing the immigrants admitted
under this paragraph and the enterprises they invest in
and a recommendation on whether the pilot program under
this subparagraph should be continued or modified.
``(6) Certain special immigrants.--Visas shall be made
available, in a number not to exceed 5,000 of such worldwide
level, to qualified special immigrants described in section
101(a)(27) (other than those described in subparagraph (A)
thereof), of which not more than 4,000 may be made available in
any fiscal year to special immigrants described in subclause
(II) or (III) of section 101(a)(27)(C)(ii).''; and
(3) by adding at the end the following new paragraph:
``(8) Not counting work experience as an unauthorized
alien.--For purposes of this subsection, work experience
obtained in employment in the United States with respect to
which the alien was an unauthorized alien (as defined in
section 274A(h)(3)) shall not be taken into account.''.
(b) Conditional Status for Certain Foreign Language Teachers.--
(1) In general.--Title II is amended by inserting after
section 216A the following new section:
``conditional permanent resident status for certain foreign language
teachers
``Sec. 216B. (a) In General.--Subject to the succeeding provisions of
this section, section 216A shall apply to an alien foreign language
teacher (as defined in subsection (d)(1)) and to an alien spouse or
alien child (as defined in subsection (d)(2)) in the same manner as
such section applies to an alien entrepreneur and an alien spouse or
alien child.
``(b) Timing for Petition.--
``(1) In general.--In applying section 216A under subsection
(a), any reference to a `second anniversary of an alien's
lawful admission for permanent residence' is deemed a reference
to the end of the time period described in paragraph (2).
``(2) Time period for determination.--The time period
described in this paragraph is 5 years less the period of
experience, during the 5-year period ending on the date the
alien foreign language teacher obtains permanent resident
status, of teaching a language (other than English) full-time
at an accredited elementary or middle school.
``(c) Requirement for Total of 5 Years' Teaching Experience.--In
applying section 216A under subsection (a), the determination of the
Attorney General under section 216A(b)(1) shall be whether (and the
facts and information under section 216A(d)(1) shall demonstrate that)
the alien has been employed on a substantially full-time basis as a
foreign language teacher at an accredited elementary or middle school
in the United States during the period since obtaining permanent
residence status (instead of the determinations described in section
216A(b)(1) and of the facts and information described in section
216A(d)(1)).
``(d) Definitions.--In this section:
``(1) The term `alien foreign language teacher' means an
alien who obtains the status of an alien lawfully admitted for
permanent residence (whether on a conditional basis or
otherwise) under section 203(b)(4)(C)(ii) on the basis of less
than 5 years' teaching experience.
``(2) The term `alien spouse' and the term `alien child' mean
an alien who obtains the status of an alien lawfully admitted
for permanent residence (whether on a conditional basis or
otherwise) by virtue of being the spouse or child,
respectively, of an alien foreign language teacher.''.
(2) Clerical amendment.--The table of contents is amended by
inserting after the item relating to section 216A the
following:
``Sec. 216B. Conditional permanent resident status for certain foreign
language teachers.''.
SEC. 514. CHANGES IN DIVERSITY IMMIGRANT PROGRAM.
(a) Application Only to 10 Countries with Highest Registrants.--
Section 203(c) (8 U.S.C. 1153(c)) is amended--
(1) in paragraph (1)(B)(ii), by striking ``and'' at the end
of subclause (I), by striking the period at the end of
subclause (II) and inserting ``, and'', and by adding at the
end the following new subclause:
``(III) within each region, the 10
foreign states which had the highest
number of registrants for the diversity
immigrant program under this subsection
for the period beginning October 1,
1994, and ending September 30, 1996,
and which are not high-admission
states.''; and
(2) by adding at the end of paragraph (1)(E) the following
new clause:
``(vi) Ten states eligible in each region.--
Only natives of the 10 states identified for
each region in subparagraph (B)(ii)(III) are
eligible for diversity visas.''.
(b) Change in Definition of Region.--Section 203(c)(1)(F) (8 U.S.C.
1153(c)(1)(F)) is amended--
(1) by striking ``Northern Ireland shall be treated as a
separate foreign state,'',
(2) by striking the comma after ``foreign state'',
(3) in clause (iv), by striking ``(other than Mexico)'',
(4) in clause (vi), by striking ``Mexico,''.
(c) Establishing Job Offer Requirement.--Paragraph (2) of section
203(c) (8 U.S.C. 1153(c)) is amended to read as follows:
``(2) Requirement of job offer and education or skilled
worker.--An alien is not eligible for a visa under this
subsection unless the alien--
``(A) has a job offer in the United States which has
been verified;
``(B) has at least a high school education or its
equivalent; and
``(C) has at least 2 years of work experience in an
occupation which requires at least 2 years of
training.''.
(d) Additional Provisions.--Section 203(c) (8 U.S.C. 1153) is further
amended by adding at the end the following new paragraphs:
``(4) Fees.--Fees for the furnishing and verification of
applications for visas under this subsection and for the
issuance of visas under this subsection may be prescribed by
the Secretary of State in such amounts as are adequate to
compensate the Department of State for the costs of
administering the diversity immigrant program. Any such fees
collected may be deposited as an offsetting collection to the
appropriate Department of State appropriation to recover the
costs of such program and shall remain available for obligation
until expended.
``(5) Ineligibility of aliens unlawfully present in the
united states.--An alien who is unlawfully present in the
United States at the time of filing of an application, within 5
years prior to the filing of such application, or at any time
subsequent to the filing of the application is ineligible for a
visa under this subsection.''.
SEC. 515. AUTHORIZATION TO REQUIRE PERIODIC CONFIRMATION OF
CLASSIFICATION PETITIONS.
(a) In General.--Section 204(b) (8 U.S.C. 1154(b)) is amended by
inserting ``(1)'' after ``(b)'' and by adding at the end the following
new paragraph:
``(2)(A) The Attorney General may provide that a petition approved
with respect to an alien (and the priority date established with
respect to the petition) shall expire after a period (specified by the
Attorney General and of not less than 2 years) following the date of
approval of the petition, unless the petitioner files with the Attorney
General a form described in subparagraph (B).
``(B) The Attorney General shall specify the form to be used under
this paragraph. Such form shall be designed--
``(i) to reconfirm the continued intention of the petitioner
to seek admission of the alien based on the classification
involved, and
``(ii) as may be provided by the Attorney General, to update
the contents of the original classification petition.
``(C) The Attorney General may apply subparagraph (A) to one or more
classes of classification petitions and for different periods of time
for different classes of such petitions, as specified by the Attorney
General.''.
(b) Effective Date.--(1) Except as provided in paragraph (2), the
amendments made by subsection (a) shall not apply to classification
petitions filed before October 1, 1996.
(2) The Attorney General may apply such amendments to such
classification petitions, but only in a manner so that no such petition
expires under such amendments before October 1, 2000.
SEC. 516. CHANGES IN SPECIAL IMMIGRANT STATUS.
(a) Repealing Certain Obsolete Provisions.--Section 101(a)(27) (8
U.S.C. 1101(a)(27)) is amended by striking subparagraphs (B), (E), (F),
(G), and (H).
(b) Special Immigrant Status for Certain NATO Civilian Employees.--
Section 101(a)(27) (8 U.S.C. 1101(a)(27)) is further amended--
(1) by striking ``or'' at the end of subparagraph (J),
(2) by striking the period at the end of subparagraph (K) and
inserting ``; or'', and
(3) by adding at the end the following new subparagraph:
``(L) an immigrant who would be described in clause (i),
(ii), (iii), or (iv) of subparagraph (I) if any reference in
such a clause--
``(i) to an international organization described in
paragraph (15)(G)(i) were treated as a reference to the
North American Treaty Organization (NATO);
``(ii) to a nonimmigrant under paragraph (15)(G)(iv)
were treated as a reference to a nonimmigrant
classifiable under NATO-6 (as a member of a civilian
component accompanying a force entering in accordance
with the provisions of the NATO Status-of-Forces
Agreement, a member of a civilian component attached to
or employed by an Allied Headquarters under the
`Protocol on the Status of International Military
Headquarters' set up pursuant to the North Atlantic
Treaty, or as a dependent); and
``(iii) to the Immigration Technical Corrections Act
of 1988 or to the Immigration and Nationality Technical
Corrections Act of 1994 were a reference to the
Immigration in the National Interest Act of 1995.''.
(c) Conforming Nonimmigrant Status for Certain Parents of Special
Immigrant Children.--Section 101(a)(15)(N) (8 U.S.C. 1101(a)(15)(N)) is
amended--
(1) by inserting ``(or under analogous authority under
paragraph (27)(L))'' after ``(27)(I)(i)'', and
(2) by inserting ``(or under analogous authority under
paragraph (27)(L))'' after ``(27)(I)''.
(d) Extension of Sunset for Religious Workers.--Section
101(a)(27)(C)(ii) (8 U.S.C. 1101(a)(27)(C)(ii)) is amended by striking
``1997'' and inserting ``2005'' each place it appears.
(e) Additional Conforming Amendments.--
(1) Section 201(b)(1)(A) (8 U.S.C. 1151(b)(1)(A)) is amended
by striking ``or (B)''.
(2) Section 203(b)(4) (8 U.S.C. 1153(b)(4)) is amended by
striking ``or (B)''.
(3) Section 214(l)(3) (8 U.S.C. 1184(l)(3)), as redesignated
by section 851(a)(3)(A), is amended by striking ``, who has not
otherwise been accorded status under section 101(a)(27)(H),''.
(4) Section 245(c)(2) (8 U.S.C. 1255(c)(2)) is amended by
striking ``101(a)(27)(H), (I),'' and inserting
``101(a)(27)(I),''.
(f) Effective Dates.--(1) Except as provided in this section, the
amendments made by this section shall take effect on the date of the
enactment of this Act.
(2) The amendments made by subsection (a) shall not apply to any
alien with respect to whom an application for special immigrant status
under a subparagraph repealed by such amendments has been filed by not
later than September 30, 1996.
SEC. 517. REQUIREMENTS FOR REMOVAL OF CONDITIONAL STATUS OF
ENTREPRENEURS.
(a) In General.--Section 216A(b) (8 U.S.C. 1186b(b)) is amended--
(1) by amending clause (ii) of paragraph (1)(B) to read as
follows:
``(ii) subject to paragraph (3), the alien did not
invest (and maintain investment of) the requisite
capital, or did not employ the requisite number of
employees, throughout substantially the entire period
since the alien's admission; or'', and
(2) by adding at the end the following new paragraph:
``(3) Exceptions.--
``(A) Good faith exception.--Paragraph (1)(B)(ii)
shall not apply to an alien to the extent that the
alien continues to attempt in good faith throughout the
period since admission to invest (and maintain
investment of) the requisite capital, and to employ the
requisite number of employees, but was unable to do so
due to circumstances for which the alien should not
justly be held responsible.
``(B) Extension.--In the case of an alien to whom the
exception under subparagraph (A) applies, the
application period under subsection (d)(2) (and period
for termination under paragraph (1)) shall be extended
(for up to 3 additional years) by such additional
period as may be necessary to enable the alien to have
had the requisite capital and number of employees
throughout a 2-year period. Such extension shall
terminate at any time at which the Attorney General
finds that the alien has not continued to attempt in
good faith to invest such capital and employ such
employees.''.
(b) Effective Date.--The amendments made by subsection (a) shall
apply to aliens admitted on or after the date of the enactment of this
Act.
SEC. 518. ADULT DISABLED CHILDREN.
Section 101(b)(1) (8 U.S.C. 1101(b)(1)) is amended--
(1) in subparagraph (E) by striking ``or'' at the end,
(2) in subparagraph (F) by striking the period at the end and
inserting ``; or'', and
(3) by adding at the end the following new subparagraph:
``(G) a child of a citizen or national of the United States
or lawful permanent resident alien, regardless of age, who has
never been married, and who has a severe mental or physical
impairment, or combination of mental or physical impairments,
which--
``(i) is likely to continue indefinitely; and
``(ii) causes substantially total inability to
perform functions necessary for independent living,
including but not necessarily limited to 3 or more of
the following areas of major life activity--
``(I) self-care,
``(II) interpersonal communication,
``(III) learning,
``(IV) mobility, and
``(V) self-direction:
Provided, That no child may be considered to be a child within
the meaning of this subparagraph on the basis, in whole or in
part, of any physical or mental impairment that is not being
ameliorated through medical treatment to the maximum extent
reasonably possible given the ability and resources of such
child and the citizen, national, or lawful permanent resident
alien who is the child's parent.''.
SEC. 519. MISCELLANEOUS CONFORMING AMENDMENTS.
(a) Conforming Amendments Relating to Immediate Relatives.--
(1) Section 101(b)(1)(F) (8 U.S.C. 1101(b)(1)(F)) is amended
by striking ``as an immediate relative under section 201(b)''
and inserting ``as a child of a citizen of the United States''.
(2) Section 204 (8 U.S.C. 1154) is amended--
(A) in subsection (a)(1)(A)(i), by striking ``to an
immediate relative status'' and inserting ``to status
as the spouse or child of a citizen of the United
States'';
(B) in subsection (a)(1)(A)(iii), by striking ``as an
immediate relative'' and inserting ``as the spouse of a
citizen of the United States'';
(C) in subsection (a)(1)(iv), by striking ``as an
immediate relative'' and inserting ``as a child of a
citizen of the United States'';
(D) in subsection (b), by striking ``an immediate
relative specified in section 201(b)'' and inserting
``a spouse or child of a citizen of the United States
under section 201(b)'';
(E) in subsection (c), by striking ``an immediate
relative or preference'' and inserting ``a
preferential'';
(F) in subsection (e)--
(i) by striking ``an immediate relative'' and
inserting ``a spouse or child of a citizen of
the United States'', and
(ii) by striking ``his'' and ``he'' and
inserting ``the alien's'' and ``the alien'',
respectively; and
(G) in subsection (g), by striking ``immediate
relative status'' and inserting ``status as a spouse or
child of a citizen of the United States or other''.
(3) Section 212(a)(6)(E)(ii) (8 U.S.C. 1182(a)(6)(E)(ii)) is
amended by striking ``an immediate relative'' and inserting ``a
spouse, child, or parent of a citizen of the United States''.
(4) Section 212(d)(11) (8 U.S.C. 1182(d)(11)) is amended by
striking ``an immediate relative'' and inserting ``a spouse or
child of a citizen of the United States''.
(5) Section 216(g)(1)(A) (8 U.S.C. 1186a(g)(1)(A)) is amended
by striking ``an immediate relative (described in section
201(b)) as the spouse of a citizen of the United States'' and
inserting ``the spouse of a citizen of the United States
(described in section 201(b))''.
(6) Section 221(a) (8 U.S.C. 1201(a)) is amended by striking
``, immediate relative,''.
(7)(A) Section 224 (8 U.S.C. 1204) is amended--
(i) by amending the heading to read as follows:
``visas for spouses and children of citizens and special immigrants'',
(ii) by striking ``immediate relative'' the first
place it appears and inserting ``a spouse or child of a
citizen of the United States'', and
(iii) by striking ``immediate relative status'' and
inserting ``status or status as a spouse or child of a
citizen of the United States''.
(B) The item in the table of contents relating to section 224
is amended to read as follows:
``Sec. 224. Visas for spouses and children of citizens and special
immigrants.''.
(8) Subsection (a)(1)(E)(ii) of section 241 (8 U.S.C. 1251),
before redesignation as section 237 by section 305(a)(2), is
amended by striking ``an immediate relative'' and inserting ``a
spouse, child, or parent of a citizen of the United States
under section 201(b) or 203(a)(2)''.
(9) Section 245(c) (8 U.S.C. 1255(c)) is amended by striking
``an immediate relative as defined in section 201(b)'' and
inserting ``a spouse or child of a citizen of the United States
under section 201(b) or a parent of a citizen under section
203(a)(2)'' each place it appears.
(10) Section 291 (8 U.S.C. 1361) is amended by striking
``immigrant, special immigrant, immediate relative'' and
inserting ``immigrant status, special immigrant status, status
as a spouse or child of a citizen of the United States''.
(11) Section 401 of the Immigration Reform and Control Act of
1986 is amended by striking ``immediate relatives'' and
inserting ``spouses and children of citizens''.
(b) Conforming Amendments for Other Family-Sponsored Immigrants.--
(1) Petitioning requirements.--Section 204 (8 U.S.C. 1154) is
amended--
(A) in subsection (a)(1)(A)(i), by striking
``paragraph (1), (3), or (4)'' and inserting
``paragraph (2) or (3)'';
(B) in subsection (a)(1)(B)(i), by striking ``section
203(a)(2)'' and inserting ``paragraph (1) or (3) of
section 203(a)(1)'';
(C) in clauses (ii) and (iii) of subsection
(a)(1)(B), by striking ``203(a)(2)(A)'' and inserting
``203(a)(1)''; and
(D) in subsection (f)(1), by striking ``, 203(a)(1),
or 203(a)(3)'' and inserting ``or 203(a)(2)''.
(2) Application of per country levels.--Section 202 (8 U.S.C.
1152) is amended--
(A) by amending paragraph (4) of subsection (a) to
read as follows:
``(4) Special rules for spouses and children of lawful
permanent resident aliens.--
``(A) 75 percent of 1st preference not subject to per
country limitation.--Of the visa numbers made available
under section 203(a) to immigrants described in
paragraph (1) of that section in any fiscal year,
63,750 shall be issued without regard to the numerical
limitation under paragraph (2).
``(B) Limiting pass down for certain countries
subject to subsection (e).--In the case of a foreign
state or dependent area to which subsection (e)
applies, if the total number of visas issued under
section 203(a)(1) exceeds the maximum number of visas
that may be made available to immigrants of the state
or area under such section consistent with subsection
(e) (determined without regard to this paragraph), in
applying paragraph (2) of section 203(a) under
subsection (e)(2) all visas shall be deemed to have
been required for the classes specified in paragraph
(1) of such section.''; and
(B) in subsection (e)--
(i) in paragraph (1), by inserting before the
semicolon the following: ``(determined without
regard to subsections (c)(4) and (d)(2) of
section 201)'',
(ii) in paragraph (2), by striking
``paragraphs (1) through (4)'' and inserting
``paragraphs (1) and (2)'', and
(iii) in the last sentence, by striking
``203(a)(2)(A)'' and inserting ``203(a)(1)''.
(3) Additional conforming amendments.--
(A) Subsection (d) of section 203 (8 U.S.C. 1153),
before redesignation by section 524(a)(1), is amended
by striking ``(a)'' and inserting ``(a)(2)''.
(B) Section 212(a)(6)(E)(ii) (8 U.S.C.
1182(a)(6)(E)(ii)) and subsection (a)(1)(E)(ii) of
section 241 (8 U.S.C. 1251)), before redesignation as
section 237 under section 305(a)(2), are each amended
by striking ``203(a)(2)'' and inserting ``203(a)(1)''.
(C) Section 212(d)(11) (8 U.S.C. 1182(d)(11)) is
amended by striking ``immigrant under section 203(a)
(other than paragraph (4) thereof)'' and inserting ``an
immigrant under section 203(a)''.
(D) Section 216(g)(1)(C) (8 U.S.C. 1186a(g)(1)(C)) is
amended by striking ``203(a)(2)'' and inserting
``203(a)(1)''.
(E) Section 2(c) of the Virgin Islands Nonimmigrant
Alien Adjustment Act of 1982 (Public Law 97-271) is
amended--
(i) in paragraph (2), by inserting ``or first
or third family preference petitions'' after
``second preference petitions'';
(ii) in paragraph (3)(A), by striking ``or''
at the end;
(iii) in paragraph (3)(B), by striking the
period at the end and inserting ``; or'';
(iv) by adding at the end of paragraph (3)
the following new subparagraph:
``(C) by virtue of a first or third family preference
petition filed by an individual who was admitted to the United
States as an immigrant by virtue of a second family preference
petition filed by the son or daughter of the individual, if
that son or daughter had his or her status adjusted under this
section.''; and
(v) in paragraph (4), by striking ``on or
after such date).'' and inserting the
following: ``on or after such date and before
October 1, 1996). For purposes of this
subsection, the terms `first family preference
petition', `second family preference petition',
and `third family preference petition' mean, in
the case of an alien, a petition filed under
section 204(a) of the Act to grant preference
status to the alien by reason of the
relationship described in section 203(a)(1),
203(a)(2), or 203(a)(3), respectively (as in
effect on and after October 1, 1996).''.
(c) Conforming Amendments Relating to Employment-Based Immigrants.--
(1) Treatment of special k immigrants.--Subparagraph (B) of
section 203(b)(7) (8 U.S.C. 1153(b)(7)), as redesignated by
section 513(a)(1), is amended--
(A) in clause (i), by striking ``and (3) shall each
be reduced by \1/3\'' and inserting ``(3), and (4)
shall each be reduced by the same proportion, as the
proportion (of the visa numbers made available under
all such paragraphs) that were made available under
each respective paragraph,'', and
(B) in clause (iii), by striking ``(3) of this
subsection in the fiscal year shall be reduced by \1/
3\'' and inserting ``(4) in the fiscal year reduced by
the same proportion, as the proportion (of the visa
numbers made available under all such paragraphs to
natives of the foreign state) that were made available
under each respective paragraph to such natives,''.
(2) Conforming amendments relating to petitioning rights.--
Section 204(a)(1) (8 U.S.C. 1154(a)(1)) is amended--
(A) in subparagraph (C), by striking ``203(b)(1)(A)''
and inserting ``203(b)(1)'';
(B) in subparagraph (D), by striking ``section
203(b)(1)(B), 203(b)(1)(C), 203(b)(2), or 203(b)(3)''
and inserting ``section 203(b)(2), 203(b)(3), or
203(b)(4)'';
(C) in subparagraph (E)(i), by striking ``203(b)(4)''
and inserting ``203(b)(6)''; and
(D) by redesignating subparagraphs (E) and (F) as
subparagraphs (F) and (E), respectively, and by moving
subparagraph (E) (as so redesignated) to precede
subparagraph (F) (as so redesignated).
(3) Ground for inadmissibility.--Section 212(a)(5)(C) (8
U.S.C. 1182(a)(5)(C)) is amended by striking ``(2) or (3)'' and
inserting ``(3) or (4)''.
(4) Other conforming amendments.--
(A) Section 202(e)(3) (8 U.S.C. 1152(e)(3)) is
amended by striking ``through (5)'' and inserting
``through (6)''.
(B) Section 245(j)(3) (8 U.S.C. 1255(j)(3)), as added
by section 130003(c)(1) Violent Crime Control and Law
Enforcement Act of 1994 (Public Law 103-322) and as
redesignated by section 851(a)(3)(A) of this Act, is
amended by striking ``203(b)(4)'' and inserting
``203(b)(6)''.
(C) Section 154(b)(1)(B)(i) of the Immigration Act of
1990 is amended by striking ``1991)'' and inserting
``1991, and before October 1, 1996) or under section
203(a), 203(b)(1), or 203(b)(2) (as in effect on and
after October 1, 1996)''.
(D) Section 206(a) of the Immigration Act of 1990 is
amended by striking ``203(b)(1)(C)'' and inserting
``203(b)(2)(C)''.
(E) Section 2(d)(2)(A) of the Chinese Student
Protection Act of 1992 (Public Law 102-404) is amended
by striking ``203(b)(3)(A)(i)'' and inserting
``203(b)(4)(B)''.
(F) The Soviet Scientists Immigration Act of 1992
(Public Law 102-509) is amended--
(i) in sections 3 and 4(a), by striking
``203(b)(2)(A) of the Immigration and
Nationality Act (8 U.S.C. 1153(b)(2)(A))'' and
inserting ``203(b)(3)(B)(i) of the Immigration
and Nationality Act (8 U.S.C.
1153(b)(3)(B)(i))'', and
(ii) in section 4(c), by striking
``203(b)(2)(A) of the Immigration and
Nationality Act (8 U.S.C. 1153(b)(2)(A))'' and
inserting ``203(b)(3) of the Immigration and
Nationality Act (8 U.S.C. 1153(b)(2))''.
(d) Repeal of Certain Outdated Provisions.--The following provisions
of law are repealed:
(1) Section 9 of Public Law 94-571 (90 Stat. 2707).
(2) Section 19 of Public Law 97-116 (95 Stat. 1621).
Subtitle C--Refugees, Parole, and Humanitarian Admissions
SEC. 521. CHANGES IN REFUGEE ANNUAL ADMISSIONS.
(a) In General.--Paragraphs (1) and (2) of section 207(a) (8 U.S.C.
1157(a)) are amended to read as follows:
``(1) Except as provided in paragraph (2) and subsection (b), the
number of refugees who may be admitted under this section in any fiscal
year shall be such number as the President determines, before the
beginning of the fiscal year and after appropriate consultation, is
justified by humanitarian concerns or is otherwise in the national
interest.
``(2)(A) Except as provided in subparagraph (B), the number
determined under paragraph (1) for a fiscal year may not exceed--
``(i) 75,000 in the case of fiscal year 1997, or
``(ii) 50,000 in the case of any succeeding fiscal year.
``(B) The number determined under paragraph (1) for a fiscal year may
exceed the limit specified under subparagraph (A) if Congress enacts a
law providing for a higher number.''.
(b) Admissions in Emergency Refugee Situations and Timing of the
Refugee Consultation Process.--
(1) Section 207(b) (8 U.S.C. 1157(b)) and section
207(d)(3)(B) (8 U.S.C. 1157(d)(3)(B)) are amended by striking
``unforeseen''.
(2) Section 207(d)(1) (8 U.S.C. 1157(d)(1)) is amended by
striking ``Before the start of each fiscal year'' and inserting
``Before June 1 of the preceding fiscal year''.
(3) Section 207(e) (8 U.S.C. 1157(e)) is amended by adding at
the end the following:
``Such discussions shall occur before July 1 of the fiscal year
preceding the fiscal year of admissions, except that discussions
relating to an emergency refugee situation shall occur not more than 30
days after the President proposes admissions in response to the
emergency.''.
(c) Effective Date.--The amendments made by subsections (a) and (b)
shall apply beginning with fiscal year 1997.
SEC. 522. PERSECUTION FOR RESISTANCE TO COERCIVE POPULATION CONTROL
METHODS.
(a) Definition of Refugee.--Section 101(a)(42) (8 U.S.C. 1101(a)(42))
is amended by adding at the end the following: ``For purposes of
determinations under this Act, a person who has been forced to abort a
pregnancy or to undergo involuntary sterilization, or who has been
persecuted for failure or refusal to undergo such a procedure or for
other resistance to a coercive population control program, shall be
deemed to have been persecuted on account of political opinion, and a
person who has a well founded fear that he or she will be forced to
undergo such a procedure or subject to persecution for such failure,
refusal, or resistance shall be deemed to have a well founded fear of
persecution on account of political opinion.''.
(b) Numerical Limitation.--Section 207(a) (8 U.S.C. 1157(a)), as
amended by section 532(b), is amended by adding at the end the
following new paragraph:
``(4) For any fiscal year, not more than a total of 1,000 refugees
may be admitted under this subsection or granted asylum under section
208 pursuant to a determination under the last sentence of section
101(a)(42) (relating to persecution for resistance to coercive
population control methods).''.
SEC. 523. PAROLE AVAILABLE ONLY ON A CASE-BY-CASE BASIS FOR
HUMANITARIAN REASONS OR SIGNIFICANT PUBLIC BENEFIT.
(a) In General.--Paragraph (5) of section 212(d) (8 U.S.C. 1182(d))
is amended to read as follows:
``(5)(A) Subject to the provisions of this paragraph and section
214(f)(2), the Attorney General, in the sole discretion of the Attorney
General, may on a case-by-case basis parole an alien into the United
States temporarily, under such conditions as the Attorney General may
prescribe, only--
``(i) for an urgent humanitarian reason (as described under
subparagraph (B)); or
``(ii) for a reason deemed strictly in the public interest
(as described under subparagraph (C)).
``(B) The Attorney General may parole an alien based on an urgent
humanitarian reason described in this subparagraph only if--
``(i) the alien has a medical emergency and the alien cannot
obtain necessary treatment in the foreign state in which the
alien is residing or the medical emergency is life-threatening
and there is insufficient time for the alien to be admitted
through the normal visa process;
``(ii) the alien is needed in the United States in order to
donate an organ or other tissue for transplant into a close
family member; or
``(iii) the alien has a close family member in the United
States whose death is imminent and the alien could not arrive
in the United States in time to see such family member alive if
the alien were to be admitted through the normal visa process.
``(C) The Attorney General may parole an alien based on a reason
deemed strictly in the public interest described in this subparagraph
only if--
``(i) the alien has assisted the United States Government in
a matter, such as a criminal investigation, espionage, or other
similar law enforcement activity, and either the alien's
presence in the United States is required by the Government or
the alien's life would be threatened if the alien were not
permitted to come to the United States; or
``(ii) the alien is to be prosecuted in the United States for
a crime.
``(D) The Attorney General may not use the parole authority under
this paragraph to permit to come to the United States aliens who have
applied for and have been found to be ineligible for refugee status or
any alien to whom the provisions of this paragraph do not apply.
``(E) Parole of an alien under this paragraph shall not be considered
an admission of the alien into the United states. When the purposes of
the parole of an alien have been served, as determined by the Attorney
General, the alien shall immediately return or be returned to the
custody from which the alien was paroled and the alien shall be
considered for admission to the United States on the same basis as
other similarly situated applicants for admission.
``(F) Not later than 90 days after the end of each fiscal year, the
Attorney General shall submit a report to the Committees on the
Judiciary of the House of Representatives and the Senate describing the
number and categories of aliens paroled into the United States under
this paragraph. Each such report shall contain information and data
concerning the number and categories of aliens paroled, the duration of
parole, and the current status of aliens paroled during the preceding
fiscal year.''.
(b) Effective Date.--The amendment made by subsection (a) shall apply
to individuals paroled into the United States on or after the first day
of the first month beginning more than 60 days after the date of the
enactment of this Act.
SEC. 524. ADMISSION OF HUMANITARIAN IMMIGRANTS.
(a) In General.--Section 203 (8 U.S.C. 1153) is amended--
(1) by redesignating subsections (d) through (g) as
subsections (e) through (h), respectively, and
(2) by inserting after subsection (c) the following new
subsection:
``(d) Humanitarian Immigrants.--
``(1) In general.--Aliens subject to the worldwide
humanitarian level specified in section 201(e) shall be
allotted visas only if the aliens have been selected by the
Attorney General under paragraph (2) as of special humanitarian
concern to the United States.
``(2) Selection of immigrants.--
``(A) In general.--The Attorney General shall, on a
case-by-case basis and based on humanitarian concerns
and the public interest, select aliens for purposes of
this subsection.
``(B) Restriction.--The Attorney General may not
select an alien under this paragraph if the alien is a
refugee (within the meaning of section 101(a)(42))
unless the Attorney General determines that compelling
reasons in the public interest with respect to that
particular alien require that the alien be admitted
into the United States as a humanitarian immigrant
under this subsection rather than as a refugee under
section 207.
``(3) Annual report.--Not later than 90 days after the end of
each fiscal year, the Attorney General shall submit to the
Committees on the Judiciary of the House of Representatives and
of the Senate a report describing the number of immigrant visas
issued under this subsection and the individuals to whom the
visas were issued.''.
(b) Petitioning.--Section 204(a)(1) (8 U.S.C. 1154(a)(1)) is amended
by adding at the end the following new subparagraph:
``(I) Any alien desiring to be provided an immigrant visa under
section 203(d) may file a petition with the Attorney General for such
classification, but only if the Attorney General has identified the
alien as possibly qualifying for such a visa.''.
(c) Order of Consideration.--Subsection (f) of section 203 (8 U.S.C.
1153), as redesignated by subsection (a)(1), is amended by
redesignating paragraph (3) as paragraph (4) and by inserting after
paragraph (2) the following new paragraph:
``(3) Immigrant visa numbers made available under subsection (d)
(relating to humanitarian immigrants) shall be issued to eligible
immigrants in an order specified by the Attorney General.''.
(d) Application of Per Country Numerical Limitations.--Section 202(a)
(8 U.S.C. 1152(a)) is amended by adding at the end the following new
paragraph:
``(5) Per country levels for humanitarian immigrants.--The
total number of immigrant visas made available to natives of
any single foreign state or dependent area under section 203(d)
in any fiscal year may not exceed 50 percent (in the case of a
single foreign state) or 15 percent (in the case of a dependent
area) of the total number of such visas made available under
such subsection in that fiscal year.''.
(e) Waiver of Certain Grounds of Inadmissibility.--Section 212(a) (8
U.S.C. 1182(a)) is amended--
(1) in paragraph (4), as amended by sections 621(a) and
512(b), by adding at the end the following new subparagraph:
``(E) Waiver authorized for humanitarian
immigrants.--The Attorney General, in the discretion of
the Attorney General, may waive the ground of
inadmissibility under subparagraph (A) in the case of
an alien seeking admission as a humanitarian immigrant
under section 203(d).'';
(2) in paragraph (5)(C), by inserting before the period at
the end the following: ``, and shall not apply to immigrants
seeking admissions as humanitarian immigrants under section
203(d)''; and
(3) in paragraph (7)(A), by redesignating clause (ii) as
clause (iii) and by inserting after clause (i) the following
new clause:
``(ii) Waiver authorized for humanitarian
immigrants.--The Attorney General, in the
discretion of the Attorney General, may waive
the ground of inadmissibility under clause (i)
in the case of an alien seeking admission as a
humanitarian immigrant under section 203(d).''.
(f) Conforming Amendment.--Section 216(g)(1) (8 U.S.C. 1186a(g)(1))
is amended by striking ``203(d)'' and inserting ``203(e)''.
Subtitle D--Asylum Reform
SEC. 531. ASYLUM REFORM.
(a) Asylum Reform.--Section 208 (8 U.S.C. 1158) is amended to read as
follows:
``asylum
``Sec. 208. (a) Authority to Apply for Asylum.--
``(1) In general.--Any alien who is physically present in the
United States or who arrives in the United States (whether or
not at a designated port of arrival), irrespective of such
alien's status, may apply for asylum in accordance with this
section.
``(2) Exceptions.--
``(A) Safe third country.--Paragraph (1) shall not
apply to an alien if the Attorney General determines
that the alien may be removed, including pursuant to a
bilateral or multilateral agreement, to a country
(other than the country of the alien's nationality or,
in the case of an alien having no nationality, the
country of the alien's last habitual residence) in
which the alien's life or freedom would not be
threatened on account of race, religion, nationality,
membership in a particular social group, or political
opinion, and where the alien would have access to a
full and fair procedure for determining a claim to
asylum or equivalent temporary protection, unless the
Attorney General finds that it is in the public
interest for the alien to receive asylum in the United
States.
``(B) Time limit.--Paragraph (1) shall not apply to
an alien unless the alien demonstrates by clear and
convincing evidence that the application has been filed
within 30 days after the alien's arrival in the United
States.
``(C) Previous asylum applications.--Paragraph (1)
shall not apply to an alien if the alien has previously
applied for asylum and had such application denied.
``(D) Changed conditions.--An application for asylum
of an alien may be considered, notwithstanding
subparagraphs (B) and (C), if the alien demonstrates to
the satisfaction of the Attorney General the existence
of fundamentally changed circumstances which affect the
applicant's eligibility for asylum.
``(3) Limitation on judicial review.--No court shall have
jurisdiction to review a determination of the Attorney General
under paragraph (2).
``(b) Conditions for Granting Asylum.--
``(1) In general.--The Attorney General may grant asylum to
an alien who has applied for asylum in accordance with the
requirements and procedures established by the Attorney General
under this section if the Attorney General determines that such
alien is a refugee within the meaning of section 101(a)(42)(A).
``(2) Exceptions.--
``(A) In general.--Paragraph (1) shall not apply to
an alien if the Attorney General determines that--
``(i) the 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;
``(ii) the alien, having been convicted by a
final judgment of a particularly serious crime,
constitutes a danger to the community of the
United States;
``(iii) there are serious reasons for
believing that the alien has committed a
serious nonpolitical crime outside the United
States prior to the arrival of the alien in the
United States;
``(iv) there are reasonable grounds for
regarding the alien as a danger to the security
of the United States;
``(v) the alien is inadmissible under
subclause (I), (II), (III), or (IV) of section
212(a)(3)(B)(i) or removable under section
237(a)(4)(B) (relating to terrorist activity),
unless, in the case only of an alien
inadmissible under subclause (IV) of section
212(a)(3)(B)(i), the Attorney General
determines, in the Attorney General's
discretion, that there are not reasonable
grounds for regarding the alien as a danger to
the security of the United States; or
``(vi) the alien was firmly resettled in
another country prior to arriving in the United
States.
``(B) Special rules.--
``(i) Conviction of aggravated felony.--For
purposes of clause (ii) of subparagraph (A), an
alien who has been convicted of an aggravated
felony shall be considered to have been
convicted of a particularly serious crime.
``(ii) Offenses.--The Attorney General may
designate by regulation offenses that will be
considered to be a crime described in clause
(ii) or (iii) of subparagraph (A).
``(C) Additional limitations.--The Attorney General
may by regulation establish additional limitations and
conditions under which an alien shall be ineligible for
asylum under paragraph (1).
``(D) No judicial review.--There shall be no judicial
review of a determination of the Attorney General under
subparagraph (A)(v).
``(3) Treatment of spouse and children.--A spouse or child
(as defined in section 101(b)(1)(A), (B), (C), (D), or (E)) of
an alien who is granted asylum under this subsection may, if
not otherwise eligible for asylum under this section, be
granted the same status as the alien if accompanying, or
following to join, such alien.
``(c) Asylum Status.--
``(1) In general.--In the case of an alien granted asylum
under subsection (b), the Attorney General--
``(A) shall not remove or return the alien to the
alien's country of nationality or, in the case of a
person having no nationality, the country of the
alien's last habitual residence;
``(B) shall authorize the alien to engage in
employment in the United States and provide the alien
with appropriate endorsement of that authorization; and
``(C) may allow the alien to travel abroad with the
prior consent of the Attorney General.
``(2) Termination of asylum.--Asylum granted under subsection
(b) does not convey a right to remain permanently in the United
States, and may be terminated if the Attorney General
determines that--
``(A) the alien no longer meets the conditions
described in subsection (b)(1) owing to a fundamental
change in circumstances;
``(B) the alien meets a condition described in
subsection (b)(2);
``(C) the alien may be removed, including pursuant to
a bilateral or multilateral agreement, to a country
(other than the country of the alien's nationality or,
in the case of an alien having no nationality, the
country of the alien's last habitual residence) in
which the alien cannot establish that it is more likely
than not that the alien's life or freedom would be
threatened on account of race, religion, nationality,
membership in a particular social group, or political
opinion, and where the alien is eligible to receive
asylum or equivalent temporary protection;
``(D) the alien has voluntarily availed himself or
herself of the protection of the alien's country of
nationality or, in the case of an alien having no
nationality, the alien's country of last habitual
residence, by returning to such country with permanent
resident status or the reasonable possibility of
obtaining such status with the same rights and
obligations pertaining to other permanent residents of
that country; or
``(E) the alien has acquired a new nationality and
enjoys the protection of the country of his new
nationality.
``(3) Removal when asylum is terminated.--An alien described
in paragraph (2) is subject to any applicable grounds of
inadmissibility or deportability under section 212(a) and
237(a), and the alien's removal or return shall be directed by
the Attorney General in accordance with sections 240 and 241.
``(4) Limitation on judicial review.--No court shall have
jurisdiction to review a determination of the Attorney General
under paragraph (2).
``(d) Asylum Procedure.--
``(1) Applications.--The Attorney General shall establish a
procedure for the consideration of asylum applications filed
under subsection (a). An application for asylum shall not be
considered unless the alien submits fingerprints and a
photograph in a manner to be determined by regulation by the
Attorney General.
``(2) Employment.--An applicant for asylum is not entitled to
employment authorization, but such authorization may be
provided under regulation by the Attorney General. An applicant
who is not otherwise eligible for employment authorization
shall not be granted such authorization prior to 180 days after
the date of filing of the application for asylum.
``(3) Fees.--The Attorney General may impose fees for the
consideration of an application for asylum, for employment
authorization under this section, and for adjustment of status
under section 209(b). The Attorney General may provide for the
assessment and payment of such fees over a period of time or by
installments. Nothing in this paragraph shall be construed to
require the Attorney General to charge fees for adjudication
services provided to asylum applicants, or to limit the
authority of the Attorney General to set adjudication and
naturalization fees in accordance with section 286(m).
``(4) Notice of privilege of counsel and consequences of
frivolous application.--At the time of filing an application
for asylum, the Attorney General shall--
``(A) advise the alien of the privilege of being
represented by counsel and of the consequences, under
paragraph (6), of knowingly filing a frivolous
application for asylum; and
``(B) provide the alien a list of persons (updated
not less often than quarterly) who have indicated their
availability to represent aliens in asylum proceedings
on a pro bono basis.
``(5) Consideration of asylum applications.--
``(A) Procedures.--The procedure established under
paragraph (1) shall provide that--
``(i) asylum cannot be granted until the
identity of the applicant has been checked
against all appropriate records or databases
maintained by the Attorney General and by the
Secretary of State, including the Automated
Visa Lookout System, to determine any grounds
on which the alien may be inadmissible to or
deportable from the United States, or
ineligible to apply for or be granted asylum;
``(ii) in the absence of exceptional
circumstances, the initial interview or hearing
on the asylum application shall commence not
later than 45 days after the date an
application is filed;
``(iii) in the absence of exceptional
circumstances, final administrative
adjudication of the asylum application, not
including administrative appeal, shall be
completed within 180 days after the date an
application is filed;
``(iv) any administrative appeal shall be
filed within 30 days of a decision granting or
denying asylum, or within 30 days of the
completion of removal proceedings before an
immigration judge under section 240, whichever
is later; and
``(v) in the case of an applicant for asylum
who fails without prior authorization or in the
absence of exceptional circumstances to appear
for an interview or hearing, including a
hearing under section 240, the application may
be dismissed or the applicant may be otherwise
sanctioned for such failure.
``(B) Additional regulatory conditions.--The Attorney
General may provide by regulation for any other
conditions or limitations on the consideration of an
application for asylum not inconsistent with this Act.
``(6) Frivolous applications.--
``(A) In general.--If the Attorney General determines
that an alien has knowingly made a frivolous
application for asylum and the alien has received the
notice under paragraph (4)(A), the alien shall be
permanently ineligible for any benefits under this Act,
effective as of the date of a final determination on
such application.
``(B) Material misrepresentations.--An application
shall be considered to be frivolous if the Attorney
General determines that the application contains a
willful misrepresentation or concealment of a material
fact.
``(7) No private right of action.--Nothing in this subsection
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.''.
(b) Conforming and Clerical Amendments.--
(1) The item in the table of contents relating to section 208
is amended to read as follows:
``Sec. 208. Asylum.''.
(2) Section 104(d)(1)(A) of the Immigration Act of 1990
(Public Law 101-649) is amended by striking ``208(b)'' and
inserting ``208''.
(c) Effective Date.--The amendment made by subsection (a) shall apply
to applications for asylum filed on or after the first day of the first
month beginning more than 180 days after the date of the enactment of
this Act.
SEC. 532. FIXING NUMERICAL ADJUSTMENTS FOR ASYLEES AT 10,000 EACH YEAR.
(a) In General.--Section 209(b) (8 U.S.C. 1159(b)) is amended by
striking ``Not more than'' and all that follows through ``adjust'' and
inserting the following: ``The Attorney General, in the Attorney
General's discretion and under such regulations as the Attorney General
may prescribe, and in a number not to exceed 10,000 aliens in any
fiscal year, may adjust''.
(b) Conforming Amendment.--Section 207(a) (8 U.S.C. 1157(a)) is
amended by striking paragraph (4).
(c) Effective Date.--The amendment made by subsection (a) shall take
effect on October 1, 1996.
SEC. 533. INCREASED RESOURCES FOR REDUCING ASYLUM APPLICATION BACKLOGS.
(a) Authorization of Temporary Employment of Certain Annuitants and
Retirees.--
(1) In general.--For the purpose of performing duties in
connection with adjudicating applications for asylum pending as
of the date of the enactment of this Act, the Attorney General
may employ for a period not to exceed 24 months (beginning 3
months after the date of the enactment of this Act) not more
than 300 individuals (at any one time) who, by reason of
separation from service on or before January 1, 1995, are
receiving--
(A) annuities under the provisions of subchapter III
of chapter 83 of title 5, United States Code, or
chapter 84 of such title;
(B) annuities under any other retirement system for
employees of the Federal Government; or
(C) retired or retainer pay as retired officers of
regular components of the uniformed services.
(2) No reduction in annuity or retirement pay or
redetermination of pay during temporary employment.--
(A) Retirees under civil service retirement system
and federal employees' retirement system.--In the case
of an individual employed under paragraph (1) who is
receiving an annuity described in paragraph (1)(A)--
(i) such individual's annuity shall continue
during the employment under paragraph (1) and
shall not be increased as a result of service
performed during that employment;
(ii) retirement deductions shall not be
withheld from such individual's pay; and
(iii) such individual's pay shall not be
subject to any deduction based on the portion
of such individual's annuity which is allocable
to the period of employment.
(B) Other federal retirees.--The President shall
apply the provisions of subparagraph (A) to individuals
who are receiving an annuity described in paragraph
(1)(B) and who are employed under paragraph (1) in the
same manner and to the same extent as such provisions
apply to individuals who are receiving an annuity
described in paragraph (1)(A) and who are employed
under paragraph (1).
(C) Retired officers of the uniform services.--The
retired or retainer pay of a retired officer of a
regular component of a uniformed service shall not be
reduced under section 5532 of title 5, United States
Code, by reason of temporary employment authorized
under paragraph (1).
(b) Procedures for Property Acquisition on Leasing.--Notwithstanding
the Federal Property and Administrative Services Act of 1949 (40 U.S.C.
471 et seq.), the Attorney General is authorized to expend out of funds
made available to the Department of Justice for the administration of
the Immigration and Nationality Act such amounts as may be necessary
for the leasing or acquisition of property to carry out the purpose
described in subsection (a)(1).
(c) Increase in Asylum Officers.--Subject to the availability of
appropriations, the Attorney General shall provide for an increase in
the number of asylum officers to at least 600 asylum officers by fiscal
year 1997.
Subtitle E--General Effective Date; Transition Provisions
SEC. 551. GENERAL EFFECTIVE DATE.
(a) In General.--Except as otherwise provided in subsection (b) or in
this title, this title and the amendments made by this title shall take
effect on October 1, 1996, and shall apply beginning with fiscal year
1997.
(b) Provisions Taking Effect Upon Enactment.--Sections 523 and 554
shall take effect on the date of the enactment of this Act.
SEC. 552. GENERAL TRANSITION FOR CURRENT CLASSIFICATION PETITIONS.
(a) Family-Sponsored Immigrants.--
(1) Immediate relatives.--Any petition filed under section
204(a) of the Immigration and Nationality Act before October 1,
1996, for immediate relative status under section 201(b)(2)(A)
of such Act (as in effect before such date) as a spouse or
child of a United States citizen or as a parent of a United
States citizen shall be deemed, as of such date, to be a
petition filed under such section for status under section
201(b)(2)(A) (as such a spouse or child) or under section
203(a)(2), respectively, of such Act (as amended by this
title).
(2) Spouses and children of permanent residents.--Any
petition filed under section 204(a) of the Immigration and
Nationality Act before October 1, 1996, for preference status
under section 203(a)(2) of such Act as a spouse or child of an
alien lawfully admitted for permanent residence shall be
deemed, as of such date, to be a petition filed under such
section for preference status under section 203(a)(1) of such
Act (as amended by this title).
(b) Employment-Based Immigrants.--
(1) In general.--Subject to paragraph (2), any petition filed
before October 1, 1996, and approved on any date, to accord
status under section 203(b)(1)(A), 203(b)(1)(B), 203(b)(1)(C),
203(b)(2), 203(b)(3)(A)(i), 203(b)(3)(A)(ii), 203(b)(4),
203(b)(5) of the Immigration and Nationality Act (as in effect
before such date) shall be deemed, on and after October 1, 1996
(or, if later, the date of such approval), to be a petition
approved to accord status under section 203(b)(1),
203(b)(2)(B), 203(b)(2)(C), 203(b)(3), 203(b)(4)(B),
203(b)(4)(C), 203(b)(6), or 203(b)(5), respectively, of such
Act (as in effect on and after such date). Nothing in this
paragraph shall be construed as exempting the beneficiaries of
such petitions from the numerical limitations under section
203(b) of such Act (as amended by section 513).
(2) Time limitation.--Paragraph (1) shall not apply more than
two years after the date the priority date for issuance of a
visa on the basis of such a petition has been reached.
(c) Admissibility Standards.--When an immigrant, in possession of an
unexpired immigrant visa issued before October 1, 1996, makes
application for admission, the immigrant's admissibility under
paragraph (7)(A) of section 212(a) of the Immigration and Nationality
Act shall be determined under the provisions of law in effect on the
date of the issuance of such visa.
(d) Construction.--Nothing in this title shall be construed as
affecting the provisions of section 19 of Public Law 97-116, section
2(c)(1) of Public Law 97-271, or section 202(e) of Public Law 99-603.
SEC. 553. SPECIAL TRANSITION FOR CERTAIN BACKLOGGED SPOUSES AND
CHILDREN OF LAWFUL PERMANENT RESIDENT ALIENS.
(a) In General.--(1) In addition to any immigrant visa numbers
otherwise available, immigrant visa numbers in a number not to exceed
50,000 (or, if greater, \1/5\ of the number of aliens described in
paragraph (2)) immigrant visa numbers shall be made available in each
of fiscal years 1997 through 2001 for aliens who have petitions
approved for classification under section 203(a)(1) of the Immigration
and Nationality Act (as amended by this title) for the fiscal year.
(2) Aliens described in this paragraph are aliens, for whom petitions
are pending as of the beginning of the fiscal year involved, with
respect to whom the petitioning alien became an alien admitted for
lawful permanent residence through the operation of section 210 or 245A
of the Immigration and Nationality Act.
(b) Order.--(1) Subject to paragraph (2), visa numbers under this
section shall be made available in the order in which a petition, in
behalf of each such immigrant for classification under section
203(a)(1) of the Immigration and Nationality Act, is filed with the
Attorney General under section 204 of such Act.
(2) Visa numbers shall first be made available to aliens for whom the
petitioning alien did not become an alien lawfully admitted for
permanent residence thorough the operation of section 210 or 245A of
the Immigration and Nationality Act.
(3) The per country numerical limitations of section 202 of such Act
shall not apply with respect to visa numbers made available under this
section, and visa numbers made available under this section shall not
be counted in determining whether there are excess family admissions in
a fiscal year under section 201(c)(3)(B) of the Immigration and
Nationality Act (as amended by section 501(b)).
(c) Report.--The Attorney General shall submit to Congress, by April
1, 2001, a report on the operation of this section and the extent to
which this section will, by October 1, 2001, have resulted in visa
numbers being available to immigrants described in paragraphs (1) and
(2) of subsection (b) being available on a current basis.
SEC. 554. SPECIAL TREATMENT OF CERTAIN DISADVANTAGED FAMILY FIRST
PREFERENCE IMMIGRANTS.
(a) Disregard of Per Country Limits for Last Half of Fiscal Year
1996.--The per country numerical limitations specified in section
202(a) of the Immigration and Nationality Act shall not apply to
immigrant numbers made available under section 203(a)(1) of such Act
(as in effect before the date of the enactment of this Act) on or after
April 1, 1996, but only to the extent necessary to assure that the
priority date for aliens classified under such section who are
nationals of a country is not earlier than the priority date for aliens
classified under section 203(a)(2)(B) of such Act for aliens who are
nationals of that country.
(b) Additional Visa Numbers Potentially Available To Assure Equitable
Treatment for Unmarried Sons and Daughters of United States Citizens.--
(1) In general.--In addition to any immigrant visa otherwise
available, immigrant visa numbers shall be made available
during fiscal year 1997 for disadvantaged family first
preference aliens (as defined in paragraph (2)) and for spouses
and children of such aliens who would otherwise be eligible to
immigrant status under section 203(e) of the Immigration and
Nationality Act in relation to such aliens if the aliens
remained entitled to immigrant status under section 203(a) of
such Act.
(2) Disadvantaged family first preference alien defined.--In
this subsection, the term ``disadvantaged family first
preference alien'' means an alien--
(A) with respect to whom a petition for
classification under section 203(a)(1) of the
Immigration and Nationality Act (as in effect on the
date of the enactment of this Act) was approved as of
September 30, 1996, and
(B) whose priority date, as of September 30, 1996,
under such classification was earlier than the priority
date as of such date for aliens of the same nationality
with respect to whom a petition for classification
under section 203(a)(2)(B) of such Act (as in effect on
such date) had been approved.
(3) Disregard of per country numerical limitations.--
Additional visa numbers made available under this subsection
shall not be taken into account for purposes of applying any
numerical limitation applicable to the country under section
202 of such Act, and visa numbers made available under this
subsection shall not be counted in determining whether there
are excess family admissions in a fiscal year under section
201(c)(3)(B) of the Immigration and Nationality Act (as amended
by section 501(b) of this Act).
SEC. 555. AUTHORIZATION OF REIMBURSEMENT OF PETITIONERS FOR ELIMINATED
FAMILY-SPONSORED CATEGORIES.
(a) In General.--Subject to the availability of appropriations, after
the effective date of this title, the Attorney General shall establish
a process to provide for the reimbursement to each petitioner of all
fees paid to the United States, and which were required to be paid
under the Immigration and Nationality Act, for a petition, which was
not disapproved as of such date and for which a visa has not been
issued, for a family-sponsored immigrant category which is eliminated
by this title or the amendments made by this title. Any such process
shall provide that such a petitioner shall present any required
documentation or other proof of such claim, in person, to the
Immigration and Naturalization Service.
(b) Authorization of Appropriations.--There are authorized to be
appropriated such sums as are necessary to carry out this section.
TITLE VI--RESTRICTIONS ON BENEFITS FOR ALIENS
SEC. 600. STATEMENTS OF NATIONAL POLICY CONCERNING WELFARE AND
IMMIGRATION.
The Congress makes the following statements concerning national
policy with respect to welfare and immigration:
(1) Self-sufficiency has been a basic principle of United
States immigration law since this country's earliest
immigration statutes.
(2) It continues to be the immigration policy of the United
States that--
(A) aliens within the nation's borders not depend on
public resources to meet their needs, but rather rely
on their own capabilities and the resources of their
families, their sponsors, and private organizations,
and
(B) the availability of public benefits not
constitute an incentive for immigration to the United
States.
(3) Despite the principle of self-sufficiency, aliens have
been applying for and receiving public benefits from Federal,
State, and local governments at increasing rates.
(4) Current eligibility rules for public assistance and
unenforceable financial support agreements have proved wholly
incapable of assuring that individual aliens not burden the
public benefits system.
(5) It is a compelling government interest to enact new rules
for eligibility and sponsorship agreements in order to assure
that aliens be self-reliant in accordance with national
immigration policy.
(6) It is a compelling government interest to remove the
incentive for illegal immigration provided by the availability
of public benefits.
(7) Where States are authorized to follow Federal eligibility
rules for public assistance programs, the Congress strongly
encourages the States to adopt the Federal eligibility rules.
Subtitle A--Eligibility of Illegal Aliens for Public Benefits
PART 1--PUBLIC BENEFITS GENERALLY
SEC. 601. MAKING ILLEGAL ALIENS INELIGIBLE FOR PUBLIC ASSISTANCE,
CONTRACTS, AND LICENSES.
(a) Federal Programs.--Notwithstanding any other provision of law,
except as provided in section 603, any alien who is not lawfully
present in the United States shall not be eligible for any of the
following:
(1) Federal assistance programs.--To receive any benefits
under any program of assistance provided or funded, in whole or
in part, by the Federal Government for which eligibility (or
the amount of assistance) is based on financial need.
(2) Federal contracts or licenses.--To receive any grant, to
enter into any contract or loan agreement, or to be issued (or
have renewed) any professional or commercial license, if the
grant, contract, loan, or license is provided or funded by any
Federal agency.
(b) State Programs.--Notwithstanding any other provision of law,
except as provided in section 603, any alien who is not lawfully
present in the United States shall not be eligible for any of the
following:
(1) State assistance programs.--To receive any benefits under
any program of assistance (not described in subsection (a)(1))
provided or funded, in whole or in part, by a State or
political subdivision of a State for which eligibility (or the
amount of assistance) is based on financial need.
(2) State contracts or licenses.--To receive any grant, to
enter into any contract or loan agreement, or to be issued (or
have renewed) any professional or commercial license, if the
grant, contract, loan, or license is provided or funded by any
State agency.
(c) Requiring Proof of Identity for Federal Contracts, Grants, Loans,
Licenses, and Public Assistance.--
(1) In general.--In considering an application for a Federal
contract, grant, loan, or license, or for public assistance
under a program described in paragraph (2), a Federal agency
shall require the applicant to provide proof of identity under
paragraph (3) to be considered for such Federal contract,
grant, loan, license, or public assistance.
(2) Public assistance programs covered.--The requirement of
proof of identity under paragraph (1) shall apply to the
following Federal public assistance programs:
(A) SSI.--The supplemental security income program
under title XVI of the Social Security Act, including
State supplementary benefits programs referred to in
such title.
(B) AFDC.--The program of aid to families with
dependent children under part A or E of title IV of the
Social Security Act.
(C) Social services block grant.--The program of
block grants to States for social services under title
XX of the Social Security Act.
(D) Medicaid.--The program of medical assistance
under title XIX of the Social Security Act.
(E) Food stamps.--The program under the Food Stamp
Act of 1977.
(F) Housing assistance.--Financial assistance as
defined in section 214(b) of the Housing and Community
Development Act of 1980.
(3) Documents that show proof of identity.--
(A) In general.--Any one of the documents described
in subparagraph (B) may be used as proof of identity
under this subsection if the document is current and
valid. No other document or documents shall be
sufficient to prove identity.
(B) Documents described.--The documents described in
this subparagraph are the following:
(i) A United States passport (either current
or expired if issued both within the previous
20 years and after the individual attained 18
years of age).
(ii) A resident alien card.
(iii) A State driver's license, if presented
with the individual's social security account
number card.
(iv) A State identity card, if presented with
the individual's social security account number
card.
(d) Authorization for States To Require Proof of Eligibility for
State Programs.--In considering an application for contracts, grants,
loans, licenses, or public assistance under any State program, a State
is authorized to require the applicant to provide proof of eligibility
to be considered for such State contracts, grants, loans, licenses, or
public assistance.
(e) Exception for Battered Aliens.--
(1) Exception.--The limitations on eligibility for benefits
under subsection (a) or (b) shall not apply to an alien if--
(A)(i) the alien has been battered or subject to
extreme cruelty in the United States by a spouse or
parent, or by a member of the spouse or parent's family
residing in the same household as the alien and the
spouse or parent consented or acquiesced to such
battery or cruelty, or
(ii) the alien's child has been battered or subject
to extreme cruelty in the United States by a spouse or
parent of the alien (without the active participation
of the alien in the battery or extreme cruelty) or by a
member of the spouse or parent's family residing in the
same household as the alien when the spouse or parent
consented or acquiesced to, and the alien did not
actively participate in, such battery or cruelty; and
(B)(i) the alien has petitioned (or petitions within
45 days after the first application for assistance
subject to the limitations under subsection (a) or (b))
for--
(I) status as a spouse or child of a United
States citizen pursuant to clause (ii), (iii),
or (iv) of section 204(a)(1)(A) of the
Immigration and Nationality Act,
(II) classification pursuant to clauses (ii)
or (iii) of section 204(a)(1)(B) of such Act,
or
(III) cancellation of removal and adjustment
of status pursuant to section 240A(b)(2) of
such Act ; or
(ii) the alien is the beneficiary of a petition filed
for status as a spouse or child of a United States
citizen pursuant to clause (i) of section 204(a)(1)(A)
of the Immigration and Nationality Act, or of a
petition filed for classification pursuant to clause
(i) of section 204(a)(1)(B) of such Act.
(2) Termination of exception.--The exception under paragraph
(1) shall terminate if no complete petition which sets forth a
prima facie case is filed pursuant to the requirement of
paragraph (1)(B) or (1)(C) or when an petition is denied.
SEC. 602. MAKING UNAUTHORIZED ALIENS INELIGIBLE FOR UNEMPLOYMENT
BENEFITS.
(a) In General.--Notwithstanding any other provision of law, no
unemployment benefits shall be payable (in whole or in part) out of
Federal funds to the extent the benefits are attributable to any
employment of the alien in the United States for which the alien was
not granted employment authorization pursuant to Federal law.
(b) Procedures.--Entities responsible for providing unemployment
benefits subject to the restrictions of this section shall make such
inquiries as may be necessary to assure that recipients of such
benefits are eligible consistent with this section.
SEC. 603. GENERAL EXCEPTIONS.
Sections 601 and 602 shall not apply to the following:
(1) Emergency medical services.--The provision of emergency
medical services (as defined by the Attorney General in
consultation with the Secretary of Health and Human Services).
(2) Public health immunizations.--Public health assistance
for immunizations with respect to immunizable diseases and for
testing and treatment for communicable diseases.
(3) Short-term emergency relief.--The provision of non-cash,
in-kind, short-term emergency relief.
(4) Family violence services.--The provision of any services
directly related to assisting the victims of domestic violence
or child abuse.
(5) School lunch act.--Programs carried out under the
National School Lunch Act.
(6) Child nutrition act.--Programs of assistance under the
Child Nutrition Act of 1966.
SEC. 604. TREATMENT OF EXPENSES SUBJECT TO EMERGENCY MEDICAL SERVICES
EXCEPTION.
(a) In General.--Subject to such amounts as are provided in advance
in appropriation Acts, each State or local government that provides
emergency medical services (as defined for purposes of section 603(1))
through a public hospital or other public facility (including a
nonprofit hospital that is eligible for an additional payment
adjustment under section 1886 of the Social Security Act) or through
contract with another hospital or facility to an individual who is an
alien not lawfully present in the United States is entitled to receive
payment from the Federal Government of its costs of providing such
services, but only to the extent that such costs are not otherwise
reimbursed through any other Federal program and cannot be recovered
from the alien or another person.
(b) Confirmation of Immigration Status Required.--No payment shall be
made under this section with respect to services furnished to an
individual unless the identity and immigration status of the individual
has been verified with the Immigration and Naturalization Service in
accordance with procedures established by the Attorney General.
(c) Administration.--This section shall be administered by the
Attorney General, in consultation with the Secretary of Health and
Human Services.
(d) Effective Date.--Subsection (a) shall not apply to emergency
medical services furnished before October 1, 1995.
SEC. 605. REPORT ON DISQUALIFICATION OF ILLEGAL ALIENS FROM HOUSING
ASSISTANCE PROGRAMS.
Not later than 90 days after the date of the enactment of this Act,
the Secretary of Housing and Urban Development shall submit a report to
the Committees on the Judiciary of the House of Representatives and of
the Senate, the Committee on Banking of the House of Representatives,
and the Committee on Banking, Housing, and Urban Affairs of the Senate,
describing the manner in which the Secretary is enforcing section 214
of the Housing and Community Development Act of 1980. The report shall
contain statistics with respect to the number of aliens denied
financial assistance under such section.
SEC. 606. VERIFICATION OF STUDENT ELIGIBILITY FOR POSTSECONDARY FEDERAL
STUDENT FINANCIAL ASSISTANCE.
No student shall be eligible for postsecondary Federal student
financial assistance unless the student has certified that the student
is a citizen or national of the United States or an alien lawfully
admitted for permanent residence and the Secretary of Education has
verified such certification through an appropriate procedure determined
by the Attorney General.
SEC. 607. PAYMENT OF PUBLIC ASSISTANCE BENEFITS.
In carrying out this part, the payment or provision of benefits
(other than those described in section 603 under a program of
assistance described in section 601(a)(1)) shall be made only through
an individual or person who is not ineligible to receive such benefits
under such program on the basis of immigration status pursuant to the
requirements and limitations of this part.
SEC. 608. DEFINITIONS.
For purposes of this part:
(1) Lawful presence.--The determination of whether an alien
is lawfully present in the United States shall be made in
accordance with regulations of the Attorney General. An alien
shall not be considered to be lawfully present in the United
States for purposes of this title merely because the alien may
be considered to be permanently residing in the United States
under color of law for purposes of any particular program.
(2) State.--The term ``State'' includes the District of
Columbia, Puerto Rico, the Virgin Islands, Guam, the Northern
Mariana Islands, and American Samoa.
SEC. 609. REGULATIONS AND EFFECTIVE DATES.
(a) Regulations.--The Attorney General shall first issue regulations
to carry out this part (other than section 605) by not later than 60
days after the date of the enactment of this Act. Such regulations
shall take effect on an interim basis, pending change after opportunity
for public comment.
(b) Effective Date for Restrictions on Eligibility for Public
Benefits.--(1) Except as provided in this subsection, section 601 shall
apply to benefits provided, contracts or loan agreements entered into,
and professional and commercial licenses issued (or renewed) on or
after such date as the Attorney General specifies in regulations under
subsection (a). Such date shall be at least 30 days, and not more than
60 days, after the date the Attorney General first issues such
regulations.
(2) The Attorney General, in carrying out section 601(a)(2), may
permit such section to be waived in the case of individuals for whom an
application for the grant, contract, loan, or license is pending (or
approved) as of a date that is on or before the effective date
specified under paragraph (1).
(c) Effective Date for Restrictions on Eligibility for Unemployment
Benefits.--(1) Except as provided in this subsection, section 602 shall
apply to unemployment benefits provided on or after such date as the
Attorney General specifies in regulations under subsection (a). Such
date shall be at least 30 days, and not more than 60 days, after the
date the Attorney General first issues such regulations.
(2) The Attorney General, in carrying out section 602, may permit
such section to be waived in the case of an individual during a
continuous period of unemployment for whom an application for
unemployment benefits is pending as of a date that is on or before the
effective date specified under paragraph (1).
(d) Broad Dissemination of Information.--Before the effective dates
specified in subsections (b) and (c), the Attorney General shall
broadly disseminate information regarding the restrictions on
eligibility established under this part.
PART 2--EARNED INCOME TAX CREDIT
SEC. 611. EARNED INCOME TAX CREDIT DENIED TO INDIVIDUALS NOT AUTHORIZED
TO BE EMPLOYED IN THE UNITED STATES.
(a) In General.--Section 32(c)(1) of the Internal Revenue Code of
1986 (relating to individuals eligible to claim the earned income tax
credit) is amended by adding at the end the following new subparagraph:
``(F) Identification number requirement.--The term
`eligible individual' does not include any individual
who does not include on the return of tax for the
taxable year--
``(i) such individual's taxpayer
identification number, and
``(ii) if the individual is married (within
the meaning of section 7703), the taxpayer
identification number of such individual's
spouse.''
(b) Special Identification Number.--Section 32 of the Internal
Revenue Code of 1986 (relating to earned income) is amended by adding
at the end the following new subsection:
``(k) Identification Numbers.--For purposes of subsections (c)(1)(F)
and (c)(3)(D), a taxpayer identification number means a social security
number issued to an individual by the Social Security Administration
(other than a social security number issued pursuant to clause (II) (or
that portion of clause (III) that relates to clause (II)) of section
205(c)(2)(B)(i) of the Social Security Act).''
(c) Extension of Procedures Applicable to Mathematical or Clerical
Errors.--Section 6213(g)(2) of the Internal Revenue Code of 1986
(relating to the definition of mathematical or clerical errors) is
amended by striking ``and'' at the end of subparagraph (D), by striking
the period at the end of subparagraph (E) and inserting ``, and'', and
by inserting after subparagraph (E) the following new subparagraph:
``(F) an omission of a correct taxpayer
identification number required under section 23
(relating to credit for families with younger children)
or section 32 (relating to the earned income tax
credit) to be included on a return.''.
(d) Effective Date.--The amendments made by this section shall apply
to taxable years beginning after December 31, 1995.
Subtitle B--Expansion of Disqualification From Immigration Benefits on
the Basis of Public Charge
SEC. 621. GROUND FOR INADMISSIBILITY.
(a) In General.--Paragraph (4) of section 212(a) (8 U.S.C. 1182(a))
is amended to read as follows:
``(4) Public charge.--
``(A) Family-sponsored immigrants.--Any alien who
seeks admission or adjustment of status under a visa
number issued under section 203(a), who cannot
demonstrate to the consular officer at the time of
application for a visa, or to the Attorney General at
the time of application for admission or adjustment of
status, that the alien's age, health, family status,
assets, resources, financial status, education, skills,
or a combination thereof, or an affidavit of support
described in section 213A, or both, make it unlikely
that the alien will become a public charge (as
determined under section 241(a)(5)(B)) is inadmissible.
``(B) Nonimmigrants.--Any alien who seeks admission
under a visa number issued under section 214, who
cannot demonstrate to the consular officer at the time
of application for the visa that the alien's age,
health, family status, assets, resources, financial
status, education, skills or a combination thereof, or
an affidavit of support described in section 213A, or
both, make it unlikely that the alien will become a
public charge (as determined under section
241(a)(5)(B)) is inadmissible.
``(C) Employment-based immigrants.--
``(i) In general.--Any alien who seeks
admission or adjustment of status under a visa
number issued under paragraph (2) or (3) of
section 203(b) who cannot demonstrate to the
consular officer at the time of application for
a visa, or to the Attorney General at the time
of application for admission or adjustment of
status, that the immigrant has a valid offer of
employment is inadmissible.
``(ii) Certain employment-based immigrants.--
Any alien who seeks admission or adjustment of
status under a visa number issued under section
203(b) by virtue of a classification petition
filed by a relative of the alien (or by an
entity in which such relative has a significant
ownership interest) is inadmissible unless such
relative has executed an affidavit of support
described in section 213A with respect to such
alien.''.
(b) Effective Date.--(1) Subject to paragraph (2), the amendment made
by subsection (a) shall apply to applications submitted on or after
such date, not earlier than 30 days and not later than 60 days after
the date the Attorney General promulgates under section 632(f) a
standard form for an affidavit of support, as the Attorney General
shall specify.
(2) Section 212(a)(4)(C)(i) of the Immigration and Nationality Act,
as amended by subsection (a), shall apply only to aliens seeking
admission or adjustment of status under a visa number issued on or
after October 1, 1996.
SEC. 622. GROUND FOR DEPORTABILITY.
(a) In General.--Paragraph (5) of subsection (a) of section 241 (8
U.S.C. 1251(a)), before redesignation as section 237 by section
305(a)(2), is amended to read as follows:
``(5) Public charge.--
``(A) In general.--Any alien who, within 7 years
after the date of entry or admission, becomes a public
charge is deportable.
``(B) Exceptions.--(i) Subparagraph (A) shall not
apply if the alien establishes that the alien has
become a public charge from causes that arose after
entry or admission. A condition that the alien knew (or
had reason to know) existed at the time of entry or
admission shall be deemed to be a cause that arose
before entry or admission.
``(ii) The Attorney General, in the discretion of the
Attorney General, may waive the application of
subparagraph (A) in the case of an alien who is
admitted as a refugee under section 207 or granted
asylum under section 208.
``(C) Individuals treated as public charge.--
``(i) In general.--For purposes of this
title, an alien is deemed to be a `public
charge' if the alien receives benefits (other
than benefits described in subparagraph (E))
under one or more of the public assistance
programs described in subparagraph (D) for an
aggregate period, except as provided in clauses
(ii) and (iii), of at least 12 months within 7
years after the date of entry. The previous
sentence shall not be construed as excluding
any other bases for considering an alien to be
a public charge, including bases in effect on
the day before the date of the enactment of the
Immigration in the National Interest Act of
1995. The Attorney General, in consultation
with the Secretary of Health and Human
Services, shall establish rules regarding the
counting of health benefits described in
subparagraph (D)(iv) for purposes of this
subparagraph.
``(ii) Determination with respect to battered
women and children.--For purposes of a
determination under clause (i) and except as
provided in clause (iii), the aggregate period
shall be 48 months within 7 years after the
date of entry if the alien can demonstrate that
(I) the alien has been battered or subject to
extreme cruelty in the United States by a
spouse or parent, or by a member of the spouse
or parent's family residing in the same
household as the alien and the spouse or parent
consented or acquiesced to such battery or
cruelty, or (II) the alien's child has been
battered or subject to extreme cruelty in the
United States by a spouse or parent of the
alien (without the active participation of the
alien in the battery or extreme cruelty), or by
a member of the spouse or parent's family
residing in the same household as the alien
when the spouse or parent consented or
acquiesced to and the alien did not actively
participate in such battery or cruelty, and the
need for the public benefits received has a
substantial connection to the battery or
cruelty described in subclause (I) or (II).
``(iii) Special rule for ongoing battery or
cruelty.--For purposes of a determination under
clause (i), the aggregate period may exceed 48
months within 7 years after the date of entry
if the alien can demonstrate that any battery
or cruelty under clause (ii) is ongoing, has
led to the issuance of an order of a judge or
an administrative law judge or a prior
determination of the Service, and that the need
for the benefits received has a substantial
connection to such battery or cruelty.
``(D) Public assistance programs.--For purposes of
subparagraph (B), the public assistance programs
described in this subparagraph are the following (and
include any successor to such a program as identified
by the Attorney General in consultation with other
appropriate officials):
``(i) SSI.--The supplemental security income
program under title XVI of the Social Security
Act, including State supplementary benefits
programs referred to in such title.
``(ii) AFDC.--The program of aid to families
with dependent children under part A or E of
title IV of the Social Security Act.
``(iii) Medicaid.--The program of medical
assistance under title XIX of the Social
Security Act.
``(iv) Food stamps.--The program under the
Food Stamp Act of 1977.
``(v) State general cash assistance.--A
program of general cash assistance of any State
or political subdivision of a State.
``(vi) Housing assistance.--Financial
assistance as defined in section 214(b) of the
Housing and Community Development Act of 1980.
``(E) Certain assistance excepted.--For purposes of
subparagraph (B), an alien shall not be considered to
be a public charge on the basis of receipt of any of
the following benefits:
``(i) Emergency medical services.--The
provision of emergency medical services (as
defined by the Attorney General in consultation
with the Secretary of Health and Human
Services).
``(ii) Public health immunizations.--Public
health assistance for immunizations with
respect to immunizable diseases and for testing
and treatment for communicable diseases.
``(iii) Short-term emergency relief.--The
provision of non-cash, in-kind, short-term
emergency relief.''.
(b) Effective Date.--(1) The amendment made by subsection (a) shall
take effect as of the first day of the first month beginning at least
30 days after the date of the enactment of this Act.
(2) In applying section 241(a)(5)(C) of the Immigration and
Nationality Act (which is subsequently redesignated as section
237(a)(5)(C) of such Act), as amended by subsection (a), no receipt of
benefits under a public assistance program before the effective date
described in paragraph (1) shall be taken into account.
Subtitle C--Attribution of Income and Affidavits of Support
SEC. 631. ATTRIBUTION OF SPONSOR'S INCOME AND RESOURCES TO FAMILY-
SPONSORED IMMIGRANTS.
(a) Federal Programs.--Notwithstanding any other provision of law, in
determining the eligibility and the amount of benefits of an alien for
any Federal means-tested public benefits program (as defined in
subsection (d)) the income and resources of the alien shall be deemed
to include--
(1) the income and resources of any individual who executed
an affidavit of support pursuant to section 213A of the
Immigration and Nationality Act (as inserted by section 632(a))
in behalf of such alien, and
(2) the income and resources of the spouse (if any) of the
individual.
(b) Period of Attribution.--
(1) Parents of united states citizens.--Subsection (a) shall
apply with respect to an alien who is admitted to the United
States as the parent of a United States citizen under section
203(a)(2) of the Immigration and Nationality Act, as amended by
section 512(a), until the alien is naturalized as a citizen of
the United States.
(2) Spouses of united states citizens and lawful permanent
residents.--Subsection (a) shall apply with respect to an alien
who is admitted to the United States as the spouse of a United
States citizen or lawful permanent resident under section
201(b)(2) of 203(a)(1) of the Immigration and Nationality Act
until--
(A) 7 years after the date the alien is lawfully
admitted to the United States for permanent residence,
or
(B) the alien is naturalized as a citizen of the
United States,
whichever occurs first.
(3) Minor children of united states citizens and lawful
permanent residents.--Subsection (a) shall apply with respect
to an alien who is admitted to the United States as the minor
child of a United States citizen or lawful permanent resident
under section 201(b)(2) of 203(a)(1) of the Immigration and
Nationality Act until the child attains the age of 21 years or,
if earlier, the date the child is naturalized as a citizen of
the United States.
(4) Attribution of sponsor's income and resources ended if
sponsored alien becomes eligible for old-age benefits under
title ii of the social security act.--
(A) Notwithstanding any other provision of this
section, subsection (a) shall not apply and the period
of attribution of a sponsor's income and resources
under this subsection shall terminate if the alien is
employed for a period sufficient to qualify for old age
benefits under title II of the Social Security Act and
the alien is able to prove to the satisfaction of the
Attorney General that the alien so qualifies.
(B) The Attorney General shall ensure that
appropriate information pursuant to subparagraph (A) is
provided to the System for Alien Verification of
Eligibility (SAVE).
(5) Battered women and children.--Notwithstanding any other
provision of this section, subsections (a) and (c) shall not
apply and the period of attribution of the income and resources
of any individual under paragraphs (1) or (2) of subsection (a)
or paragraph (1) shall not apply--
(A) for up to 48 months if the alien can demonstrate
that (i) the alien has been battered or subject to
extreme cruelty in the United States by a spouse or
parent, or by a member of the spouse or parent's family
residing in the same household as the alien and the
spouse or parent consented or acquiesced to such
battery or cruelty, or (ii) the alien's child has been
battered or subject to extreme cruelty in the United
States by a spouse or parent of the alien (without the
active participation of the alien in the battery or
extreme cruelty), or by a member of the spouse or
parent's family residing in the same household as the
alien when the spouse or parent consented or acquiesced
to and the alien did not actively participate in such
battery or cruelty, and need for the public benefits
applied for has a substantial connection to the battery
or cruelty described in clause (i) or (ii); and
(B) for more than 48 months if the alien can
demonstrate that any battery or cruelty under
subparagraph (A) is ongoing, has led to the issuance of
an order of a judge or an administrative law judge or a
prior determination of the Service, and that need for
such benefits has a substantial connection to such
battery or cruelty.
(c) Optional Application to State Programs.--
(1) Authority.--Notwithstanding any other provision of law,
in determining the eligibility and the amount of benefits of an
alien for any State means-tested public benefits program, the
State or political subdivision that offers the program is
authorized to provide that the income and resources of the
alien shall be deemed to include--
(A) the income and resources of any individual who
executed an affidavit of support pursuant to section
213A of the Immigration and Nationality Act (as
inserted by section 632(a)) in behalf of such alien,
and
(B) the income and resources of the spouse (if any)
of the individual.
(2) Period of attribution.--The period of attribution of a
sponsor's income and resources in determining the eligibility
and amount of benefits for an alien under any State means-
tested public benefits program pursuant to paragraph (1) may
not exceed the Federal period of attribution with respect to
the alien.
(d) Means-Tested Program Defined.--In this section:
(1) The term ``means-tested public benefits program'' means a
program of public benefits (including cash, medical, housing,
and food assistance and social services) of the Federal
Government or of a State or political subdivision of a State in
which the eligibility of an individual, household, or family
eligibility unit for benefits under the program, or the amount
of such benefits, or both are determined on the basis of
income, resources, or financial need of the individual,
household, or unit.
(2) The term ``Federal means-tested public benefits program''
means a means-tested public benefits program of (or contributed
to by) the Federal Government.
(3) The term ``State means-tested public benefits program''
means a means-tested public benefits program that is not a
Federal means-tested program.
SEC. 632. REQUIREMENTS FOR SPONSOR'S AFFIDAVIT OF SUPPORT.
(a) In General.--Title II is amended by inserting after section 213
the following new section:
``requirements for sponsor's affidavit of support
``Sec. 213A. (a) Enforceability.--(1) No affidavit of support may be
accepted by the Attorney General or by any consular officer to
establish that an alien is not inadmissible as a public charge under
section 212(a)(4) unless such affidavit is executed by a sponsor of the
alien as a contract--
``(A) that is legally enforceable against the sponsor by the
Federal Government and by any State (or any political
subdivision of such State) that provides any means-tested
public benefits program, subject to subsection (b)(4); and
``(B) in which the sponsor agrees to submit to the
jurisdiction of any Federal or State court for the purpose of
actions brought under subsection (b)(2).
``(2)(A) An affidavit of support shall be enforceable with respect to
benefits provided under any means-tested public benefits program for an
alien who is admitted to the United States as the parent of a United
States citizen under section 203(a)(2) until the alien is naturalized
as a citizen of the United States.
``(B) An affidavit of support shall be enforceable with respect to
benefits provided under any means-tested public benefits program for an
alien who is admitted to the United States as the spouse of a United
States citizen or lawful permanent resident under section 201(b)(2) or
203(a)(2) until--
``(i) 7 years after the date the alien is lawfully admitted
to the United States for permanent residence, or
``(ii) such time as the alien is naturalized as a citizen of
the United States,
whichever occurs first.
``(C) An affidavit of support shall be enforceable with respect to
benefits provided under any means-tested public benefits program for an
alien who is admitted to the United States as the minor child of a
United States citizen or lawful permanent resident under section
201(b)(2) or section 203(a)(2) until the child attains the age of 21
years.
``(D)(i) Notwithstanding any other provision of this subparagraph, a
sponsor shall be relieved of any liability under an affidavit of
support if the sponsored alien is employed for a period sufficient to
qualify for old age benefits under title II of the Social Security Act
and the sponsor or alien is able to prove to the satisfaction of the
Attorney General that the alien so qualifies.
``(ii) The Attorney General shall ensure that appropriate information
pursuant to clause (i) is provided to the System for Alien Verification
of Eligibility (SAVE).
``(b) Reimbursement of Government Expenses.--(1)(A) Upon notification
that a sponsored alien has received any benefit under any means-tested
public benefits program, the appropriate Federal, State, or local
official shall request reimbursement by the sponsor in the amount of
such assistance.
``(B) The Attorney General, in consultation with the Secretary of
Health and Human Services, shall prescribe such regulations as may be
necessary to carry out subparagraph (A).
``(2) If within 45 days after requesting reimbursement, the
appropriate Federal, State, or local agency has not received a response
from the sponsor indicating a willingness to commence payments, an
action may be brought against the sponsor pursuant to the affidavit of
support.
``(3) If the sponsor fails to abide by the repayment terms
established by such agency, the agency may, within 60 days of such
failure, bring an action against the sponsor pursuant to the affidavit
of support.
``(4) No cause of action may be brought under this subsection later
than 10 years after the alien last received any benefit under any
means-tested public benefits program.
``(5) If, pursuant to the terms of this subsection, a Federal, State,
or local agency requests reimbursement from the sponsor in the amount
of assistance provided, or brings an action against the sponsor
pursuant to the affidavit of support, the appropriate agency may
appoint or hire an individual or other person to act on behalf of such
agency acting under the authority of law for purposes of collecting any
moneys owed. Nothing in this subsection shall preclude any appropriate
Federal, State, or local agency from directly requesting reimbursement
from a sponsor for the amount of assistance provided, or from bringing
an action against a sponsor pursuant to an affidavit of support.
``(c) Remedies.--Remedies available to enforce an affidavit of
support under this section include any or all of the remedies described
in section 3201, 3203, 3204, or 3205 of title 28, United States Code,
as well as an order for specific performance and payment of legal fees
and other costs of collection, and include corresponding remedies
available under State law. A Federal agency may seek to collect amounts
owed under this section in accordance with the provisions of subchapter
II of chapter 37 of title 31, United States Code.
``(d) Notification of Change of Address.--(1) The sponsor of an alien
shall notify the Federal Government and the State in which the
sponsored alien is currently residing within 30 days of any change of
address of the sponsor during the period specified in subsection
(a)(1).
``(2) Any person subject to the requirement of paragraph (1) who
fails to satisfy such requirement shall be subject to a civil penalty
of--
``(A) not less than $250 or more than $2,000, or
``(B) if such failure occurs with knowledge that the
sponsored alien has received any benefit under any means-tested
public benefits program, not less than $2,000 or more than
$5,000.
``(e) Definitions.--For the purposes of this section--
``(1) Sponsor.--The term `sponsor' means, with respect to an
alien, an individual who--
``(A) is a citizen or national of the United States
or an alien who is lawfully admitted to the United
States for permanent residence;
``(B) is 18 years of age or over;
``(C) is domiciled in any State;
``(D) demonstrates, through presentation of a
certified copy of a tax return or otherwise, (i) the
means to maintain an annual income equal to at least
200 percent of the poverty level for the individual and
the individual's family (including the alien and any
other aliens with respect to whom the individual is a
sponsor), or (ii) for an individual who is on active
duty (other than active duty for training) in the Armed
Forces of the United States, the means to maintain an
annual income equal to at least 100 percent of the
poverty level for the individual and the individual's
family including the alien and any other aliens with
respect to whom the individual is a sponsor); and
``(E) is petitioning for the admission of the alien
under section 204 (or is an individual who accepts
joint and several liability with the petitioner).
``(2) Federal poverty line.--The term `Federal poverty line'
means the income official poverty line (as defined in section
673(2) of the Community Services Block Grant Act) that is
applicable to a family of the size involved.
``(3) Means-tested public benefits program.--The term `means-
tested public benefits program' means a program of public
benefits (including cash, medical, housing, and food assistance
and social services) of the Federal Government or of a State or
political subdivision of a State in which the eligibility of an
individual, household, or family eligibility unit for benefits
under the program, or the amount of such benefits, or both are
determined on the basis of income, resources, or financial need
of the individual, household, or unit.''.
(b) Requirement of Affidavit of Support From Employment Sponsors.--
For requirement for affidavit of support from individuals who file
classification petitions for a relative as an employment-based
immigrant, see the amendment made by section 621(a).
(c) Settlement of Claims Prior to Naturalization.--Section 316 (8
U.S.C. 1427) is amended--
(1) in subsection (a), by striking ``and'' before ``(3)'',
and by inserting before the period at the end the following:
``, and (4) in the case of an applicant that has received
assistance under a means-tested public benefits program (as
defined in subsection (f)(3) of section 213A) administered by a
Federal, State, or local agency and with respect to which
amounts may be owing under an affidavit of support executed
under such section, provides satisfactory evidence that there
are no outstanding amounts that may be owed to any such
Federal, State, or local agency pursuant to such affidavit by
the sponsor who executed such affidavit, except as provided in
subsection (g)''; and
(2) by adding at the end the following new subsection:
``(g) Clause (4) of subsection (a) shall not apply to an applicant
where the applicant can demonstrate that--
``(A) either--
``(i) the applicant has been battered or subject to
extreme cruelty in the United States by a spouse or
parent or by a member of the spouse or parent's family
residing in the same household as the applicant and the
spouse or parent consented or acquiesced to such
battery or cruelty, or
``(ii) the applicant's child has been battered or
subject to extreme cruelty in the United States by the
applicant's spouse or parent (without the active
participation of the applicant in the battery or
extreme cruelty), or by a member of the spouse or
parent's family residing in the same household as the
applicant when the spouse or parent consented or
acquiesced to and the applicant did not actively
participate in such battery or cruelty;
``(B) such battery or cruelty has led to the issuance of an
order of a judge or an administrative law judge or a prior
determination of the Service; and
``(C) the need for the public benefits received as to which
amounts are owing had a substantial connection to the battery
or cruelty described in subparagraph (A).''.
(d) Clerical Amendment.--The table of contents is amended by
inserting after the item relating to section 213 the following:
``Sec. 213A. Requirements for sponsor's affidavit of support.''.
(e) Effective Date.--Subsection (a) of section 213A of the
Immigration and Nationality Act, as inserted by subsection (a) of this
section, shall apply to affidavits of support executed on or after a
date specified by the Attorney General, which date shall be not earlier
than 60 days (and not later than 90 days) after the date the Attorney
General formulates the form for such affidavits under subsection (f) of
this section.
(f) Promulgation of Form.--Not later than 90 days after the date of
the enactment of this Act, the Attorney General, in consultation with
the Secretary of State and the Secretary of Health and Human Services,
shall promulgate a standard form for an affidavit of support consistent
with the provisions of section 213A of the Immigration and Nationality
Act.
TITLE VII--FACILITATION OF LEGAL ENTRY
SEC. 701. ADDITIONAL LAND BORDER INSPECTORS; INFRASTRUCTURE
IMPROVEMENTS.
(a) Increased Personnel.--
(1) In general.--In order to eliminate undue delay in the
thorough inspection of persons and vehicles lawfully attempting
to enter the United States, the Attorney General and Secretary
of the Treasury shall increase, by approximately equal numbers
in each of the fiscal years 1996 and 1997, the number of full-
time land border inspectors assigned to active duty by the
Immigration and Naturalization Service and the United States
Customs Service to a level adequate to assure full staffing
during peak crossing hours of all border crossing lanes now in
use, under construction, or construction of which has been
authorized by Congress.
(2) Deployment of personnel.--The Attorney General and the
Secretary of the Treasury shall, to the maximum extent
practicable, ensure that the personnel hired pursuant to this
subsection shall be deployed among the various Immigration and
Naturalization Service sectors in proportion to the number of
land border crossings measured in each such sector during the
preceding fiscal year.
(b) Improved Infrastructure.--
(1) In general.--The Attorney General may, from time to time,
in consultation with the Secretary of the Treasury, identify
those physical improvements to the infrastructure of the
international land borders of the United States necessary to
expedite the inspection of persons and vehicles attempting to
lawfully enter the United States in accordance with existing
policies and procedures of the Immigration and Naturalization
Service, the United States Customs Service, and the Drug
Enforcement Agency.
(2) Priorities.--Such improvements to the infrastructure of
the land border of the United States shall be substantially
completed and fully funded in those portions of the United
States where the Attorney General, in consultation with the
Committees on the Judiciary of the House of Representatives and
the Senate, objectively determines the need to be greatest or
most immediate before the Attorney General may obligate funds
for construction of any improvement otherwise located.
SEC. 702. COMMUTER LANE PILOT PROGRAMS.
(a) Making Land Border Inspection Fee Permanent.--Section 286(q) (8
U.S.C. 1356(q)) is amended--
(1) in paragraph (1), by striking ``a project'' and inserting
``projects'';
(2) in paragraph (1), by striking ``Such project'' and
inserting ``Such projects''; and
(3) by striking paragraph (5).
(b) Conforming Amendment.--The Departments of Commerce, Justice, and
State, the Judiciary, and Related Agencies Appropriation Act, 1994
(Public Law 103-121, 107 Stat. 1161) is amended by striking the fourth
proviso under the heading ``Immigration and Naturalization Service,
Salaries and Expenses''.
SEC. 703. PREINSPECTION AT FOREIGN AIRPORTS.
(a) In General.--The Immigration and Nationality Act is amended by
inserting after section 235 the following new section:
``preinspection at foreign airports
``Sec. 235A. (a) Establishment of Preinspection Stations.--(1)
Subject to paragraph (4), not later than 2 years after the date of the
enactment of this section, the Attorney General, in consultation with
the Secretary of State, shall establish and maintain preinspection
stations in at least 5 of the foreign airports that are among the 10
foreign airports which the Attorney General identifies as serving as
last points of departure for the greatest numbers of passengers who
arrive from abroad by air at ports of entry within the United States.
Such preinspection stations shall be in addition to any preinspection
stations established prior to the date of the enactment of this
section.
``(2) Not later than November 1, 1995, and each subsequent November
1, the Attorney General shall compile data identifying--
``(A) the foreign airports which served as last points of
departure for aliens who arrived by air at United States ports
of entry without valid documentation during the preceding
fiscal years,
``(B) the number and nationality of such aliens arriving from
each such foreign airport, and
``(C) the primary routes such aliens followed from their
country of origin to the United States.
``(3) Subject to paragraph (4), not later than 4 years after the date
of enactment of this section, the Attorney General, in consultation
with the Secretary of State, shall establish preinspection stations in
at least 5 additional foreign airports which the Attorney General, in
consultation with the Secretary of State, determines based on the data
compiled under paragraph (2) and such other information as may be
available would most effectively reduce the number of aliens who arrive
from abroad by air at points of entry within the United States without
valid documentation. Such preinspection stations shall be in addition
to those established prior to or pursuant to paragraph (1).
``(4) Prior to the establishment of a preinspection station the
Attorney General, in consultation with the Secretary of State, shall
ensure that--
``(A) employees of the United States stationed at the
preinspection station and their accompanying family members
will receive appropriate protection,
``(B) such employees and their families will not be subject
to unreasonable risks to their welfare and safety, and
``(C) the country in which the preinspection station is to be
established maintains practices and procedures with respect to
asylum seekers and refugees in accordance with the Convention
Relating to the Status of Refugees (done at Geneva, July 28,
1951), or the Protocol Relating to the Status of Refugees (done
at New York, January 31, 1967).
``(b) Establishment of Carrier Consultant Program.--The Attorney
General shall assign additional immigration officers to assist air
carriers in the detection of fraudulent documents at foreign airports
which, based on the records maintained pursuant to subsection (a)(2),
served as a point of departure for a significant number of arrivals at
United States ports of entry without valid documentation, but where no
preinspection station exists.''.
(c) Clerical Amendment.--The table of contents, as amended by section
308(a)(2), is further amended by inserting after the item relating to
section 235 the following new item:
``Sec. 235A. Preinspection at foreign airports.''.
SEC. 704. TRAINING OF AIRLINE PERSONNEL IN DETECTION OF FRAUDULENT
DOCUMENTS.
(a) Use of Funds.--Section 286(h)(2)(A) (8 U.S.C. 1356(h)(2)(A)) is
amended--
(1) in clause (iv), by inserting ``, including training of,
and technical assistance to, commercial airline personnel
regarding such detection'' after ``United States'', and
(2) by adding at the end the following:
``The Attorney General shall provide for expenditures for training and
assistance described in clause (iv) in an amount, for any fiscal year,
not less than 5 percent of the total of the expenses incurred that are
described in the previous sentence.''.
(b) Compliance With Detection Regulations.--Section 212(f) (8 U.S.C.
1182(f)) is amended by adding at the end the following: ``Whenever the
Attorney General finds that a commercial airline has failed to comply
with regulations of the Attorney General relating to requirements of
airlines for the detection of fraudulent documents used by passengers
traveling to the United States (including the training of personnel in
such detection), the Attorney General may suspend the entry of some or
all aliens transported to the United States by such airline.''.
(c) Effective Dates.--
(1) The amendments made by subsection (a) shall apply to
expenses incurred during or after fiscal year 1996.
(2) The Attorney General shall first issue, in proposed form,
regulations referred to in the second sentence of section
212(f) of the Immigration and Nationality Act, as added by the
amendment made by subsection (b), by not later than 90 days
after the date of the enactment of this Act.
TITLE VIII--MISCELLANEOUS PROVISIONS
Subtitle A--Amendments to the Immigration and Nationality Act
SEC. 801. NONIMMIGRANT STATUS FOR SPOUSES AND CHILDREN OF MEMBERS OF
THE ARMED SERVICES.
Section 101(a)(15) (8 U.S.C. 1101(a)(15)) is amended--
(1) by striking ``or'' at the end of subparagraph (R),
(2) by striking the period at the end of subparagraph (S) and
inserting ``; or'', and
(3) by inserting after subparagraph (S) the following new
subparagraph:
``(T) an alien who is the spouse or child of a another alien
who is serving on active duty in the Armed Forces of the United
States during the period in which the other alien is stationed
in the United States.''.
SEC. 802. AMENDED DEFINITION OF AGGRAVATED FELONY.
(a) In General.--Section 101(a)(43) (8 U.S.C. 1101(a)(43)), as
amended by section 222 of the Immigration and Nationality Technical
Corrections Act of 1994 (Public Law 103-416), is amended--
(1) in subparagraph (N), by striking ``of title 18, United
States Code'' and inserting ``of this Act'', and
(2) in subparagraph (O), by striking ``which constitutes''
and all that follows up to the semicolon at the end and
inserting ``, for the purpose of commercial advantage''.
(b) Effective Date of Conviction.--Section 101(a)(43) (8 U.S.C.
1101(a)(43)), as amended by section 222(a) of the Immigration and
Nationality Technical Corrections Act of 1994 (Public Law 103-416), is
amended by adding at the end the following sentence: ``Notwithstanding
any other provision of law, the term applies for all purposes to
convictions entered before, on, or after the date of enactment of the
Immigration and Nationality Technical Corrections Act of 1994.''.
(c) Effective Date.--The amendments made by this section shall be
effective as if included in the enactment of the Immigration and
Nationality Technical Corrections Act of 1994 (Public Law 103-416).
SEC. 803. AUTHORITY TO DETERMINE VISA PROCESSING PROCEDURES.
(a) In General.--Section 202(a) (8 U.S.C. 1152(a)), as amended by
section 524(d), is amended--
(1) in paragraph (1), by striking ``paragraph (2)'' and
inserting ``paragraphs (2) and (6)'', and
(2) by adding at the end the following new paragraph:
``(6) Construction.--Nothing in paragraph (1) shall be
construed to limit the authority of the Secretary of State to
determine the procedures for the processing of immigrant visa
applications or the locations where such applications will be
processed.''.
(b) Elimination of Consulate Shopping for Visa Overstays.--Section
222 (8 U.S.C. 1202) is amended by adding at the end the following new
subsection:
``(g) In the case of an alien who has entered and remained in the
United States beyond the authorized period of stay, the alien is not
eligible to be admitted to the United States as a nonimmigrant on the
basis of a visa issued other than in a consular office located in the
country of the alien's nationality (or, if there is no office in such
country, at such other consular office as the Secretary of State shall
specify).''.
(c) Effective Date.--The amendments made by this section shall apply
to visas issued before, on, or after the date of the enactment of this
Act.
SEC. 804. WAIVER AUTHORITY CONCERNING NOTICE OF DENIAL OF APPLICATION
FOR VISAS.
Section 212(b) (8 U.S.C. 1182(b)) is amended--
(1) by redesignating paragraphs (1) and (2) as subparagraphs
(A) and (B);
(2) by striking ``If'' and inserting ``(1) Subject to
paragraph (2), if''; and
(3) by inserting at the end the following paragraph:
``(2) With respect to applications for visas, the Secretary of State
may waive the application of paragraph (1) in the case of a particular
alien or any class or classes of aliens inadmissible under subsection
(a)(2) or (a)(3).''.
SEC. 805. TREATMENT OF CANADIAN LANDED IMMIGRANTS.
Section 212(d)(4)(B) (8 U.S.C. 1182(d)(4)(B)) is amended--
(1) by striking ``and residents'' and inserting ``,
residents'', and
(2) by striking ``nationals,'' and inserting ``nationals, and
aliens who are granted permanent residence by the government of
the foreign contiguous territory and who are residing in that
territory''.
SEC. 806. CHANGES RELATING TO H-1B NONIMMIGRANTS.
(a) Provisions Relating to Wage Determinations.--Section 212(n) (8
U.S.C. 1182(n)) is amended by adding at the end the following new
paragraphs:
``(3) For purposes of determining the actual wage level paid under
paragraph (1)(A)(i)(I), an employer shall not be required to have and
document an objective system to determine the wages of workers.
``(4) For purposes of determining the actual wage level paid under
paragraph (1)(A)(i)(I), a non-H-1B-dependent employer of more than
1,000 full-time equivalent employees in the United States may
demonstrate that in determining the wages of H-1B nonimmigrants, it
utilizes a compensation and benefits system that has been previously
certified by the Secretary of Labor (and recertified at such intervals
the Secretary of Labor may designate) to satisfy all of the following
conditions:
``(A) The employer has a company-wide compensation policy for
its full-time equivalent employees which ensures salary equity
among employees similarly employed.
``(B) The employer has a company-wide benefits policy under
which all full-time equivalent employees similarly employed are
eligible for substantially the same benefits or under which
some employees may accept higher pay, at least equal in value
to the benefits, in lieu of benefits.
``(C) The compensation and benefits policy is communicated to
all employees.
``(D) The employer has a human resources or compensation
function that administers its compensation system.
``(E) The employer has established documentation for the job
categories in question.
An employer's payment of wages consistent with a system which meets the
conditions of subparagraphs (A) through (E) of this paragraph which has
been certified by the Secretary of Labor pursuant to this paragraph
shall be deemed to satisfy the requirements of paragraph (1)(A)(i)(I).
``(5) For purposes of determining the prevailing wage level paid
under paragraph (1)(A)(i)(II), employers may provide a published
survey, a State Employment Security Agency determination, a
determination by an accepted private source, or any other legitimate
source. The Secretary of Labor shall, not later than 180 days from the
date of enactment of this paragraph, provide for acceptance of
prevailing wage determinations not made by a State Employment Security
Agency. The Secretary of Labor or the Secretary's designate must either
accept such a non-State Employment Security Agency wage determination
or issue a written decision rejecting the determination and detailing
the legitimate reasons that the determination is not acceptable. If a
detailed rejection is not issued within 45 days of the date of the
Secretary's receipt of such determination, the determination will be
deemed accepted. An employer's payment of wages consistent with a
prevailing wage determination not rejected by the Secretary of Labor
under this paragraph shall be deemed to satisfy the requirements of
paragraph (1)(A)(i)(II).''.
(b) Inapplicability of Certain Regulations to Non-H-1B-Dependent
Employers.--
(1) Definition of h-1b-dependent employer.--Section 212(n)(2)
(8 U.S.C. 1182(n)(2)) is amended by inserting after
subparagraph (D) the following new subparagraphs:
``(E) In this subsection, the term `H-1B-dependent employer' means an
employer that--
``(i)(I) has fewer than 21 full-time equivalent employees who
are employed in the United States, and (II) employs 4 or more
H-1B nonimmigrants; or
``(ii)(I) has at least 21 but not more than 150 full-time
equivalent employees who are employed in the United States, and
(II) employs H-1B nonimmigrants in a number that is equal to at
least 20 percent of the number of such full-time equivalent
employees; or
``(iii)(I) has at least 151 full-time equivalent employees
who are employed in the United States, and (II) employs H-1B
nonimmigrants in a number that is equal to at least 15 percent
of the number of such full-time equivalent employees.
In applying this subparagraph, any group treated as a single employer
under subsection (b), (c), (m), or (o) of section 414 of the Internal
Revenue Code of 1986 shall be treated as a single employer. Aliens
employed under a petition for H-1B nonimmigrants shall be treated as
employees, and counted as nonimmigrants under section
101(a)(15)(H)(i)(b) under this subparagraph. In this subsection, the
term `non-H-1B-dependent employer' means an employer that is not an H-
1B-dependent employer.
``(F)(i) An employer who is an H-1B-dependent employer as defined in
subparagraph (E) can nevertheless be treated as a non-H-1B-dependent
employer for five years on a probationary status if--
``(I) the employer has demonstrated to the satisfaction of
the Secretary of Labor that it has developed a reasonable plan
for reducing its use of H-1B nonimmigrants over a five-year
period to the level of a non-H-1B-dependent employer, and
``(II) annual reviews of that plan by the Secretary of Labor
indicate successful implementation of that plan.
If the employer has not met the requirements established in this
clause, the probationary status ends and the employer shall be treated
as an H-1B-dependent employer until such time as the employer can prove
to the Secretary of Labor that it no longer is an H-1B-dependent
employer as defined in subparagraph (E).
``(ii) The probationary program set out in clause (i) shall be
effective for no longer than five years after the date of the enactment
of this subparagraph.''.
(2) Limiting application of certain requirements for non-h-
1b-dependent employers.--Section 212(n) (8 U.S.C. 1182(n)), as
amended by subsection (a), is further amended by adding at the
end the following new paragraph:
``(6) In carrying out this subsection in the case of an employer that
is a non-H-1B-dependent employer--
``(A) the employer is not required to post a notice at a
worksite that was not listed on the application under paragraph
(1) if the worksite is within the area of intended employment
listed on such application for such nonimmigrant; and
``(B) if the employer has filed and had certified an
application under paragraph (1) with respect to one or more H-
1B nonimmigrants for one or more areas of employment--
``(i) the employer is not required to file and have
certified an additional application under paragraph (1)
with respect to such a nonimmigrant for an area of
employment not listed in the previous application
because the employer has placed one or more such
nonimmigrants in such a nonlisted area so long as
either (I) each such nonimmigrant is not placed in such
nonlisted areas for a period exceeding 45 workdays in
any 12-month period and not to exceed 90 workdays in
any 36-month period, or (II) each such nonimmigrant's
principal place of employment has not changed to a
nonlisted area, and
``(ii) the employer is not required to pay per diem
and transportation costs at any specified rates for
work performed in such a nonlisted area.''.
(3) Limitation on authority to initiate complaints and
conduct investigations for non-h-1b-dependent employers.--
Section 212(n)(2)(A) (8 U.S.C. 1182(n)(2)(A)) is amended--
(A) in the second sentence, by inserting before the
period at the end the following: ``, except that the
Secretary may only file such a complaint in the case of
an H-1B-dependent employer (as defined in subparagraph
(E)) or when conducting an annual review of a plan
pursuant to subparagraph (F)(i) if there appears to be
a violation of an attestation or a misrepresentation of
a material fact in an application'', and
(B) by inserting after the second sentence the
following new sentence: ``No investigation or hearing
shall be conducted with respect to a non-H-1B-dependent
employer except in response to a complaint filed under
the previous sentence.''.
(c) No Displacement of American Workers Permitted.--(1) Section
212(n)(1) (8 U.S.C. 1182(n)(1)) is amended by inserting after
subparagraph (D) the following new subparagraph:
``(E)(i) If the employer, within the period beginning 6
months before and ending 90 days following the date of filing
of the application or during the 90 days immediately preceding
and following the date of filing of any visa petition supported
by the application, has laid off or lays off any protected
individual with substantially equivalent qualifications and
experience in the specific employment as to which the
nonimmigrant is sought or is employed, the employer will pay a
wage to the nonimmigrant that is at least 110 percent of the
arithmetic mean of the last wage earned by all such laid off
individuals (or, if greater, at least 110 percent of the
arithmetic mean of the highest wage earned by all such laid off
individuals within the most recent year if the employer reduced
the wage of any such laid off individual during such year other
than in accordance with a general company-wide reduction of
wages for substantially all employees).
``(ii) Except as provided in clause (iii), in the case of an
H-1B-dependent employer which employs an H-1B nonimmigrant, the
employer shall not place the nonimmigrant with another employer
where--
``(I) the nonimmigrant performs his or her duties in
whole or in part at one or more worksites owned,
operated, or controlled by such other employer, and
``(II) there are indicia of an employment
relationship between the nonimmigrant and such other
employer.
``(iii) Clause (ii) shall not apply to an employer's
placement of an H-1B nonimmigrant with another employer if--
``(I) the other employer has executed an attestation
that it, within the period beginning 6 months before
and ending 90 days following the date of filing of the
application or during the 90 days immediately preceding
and following the date of filing of any visa petition
supported by the application, has not laid off and will
not lay off any protected individual with substantially
equivalent qualifications and experience in the
specific employment as to which the H-1B nonimmigrant
is being sought or is employed, or
``(II) the employer pays a wage to the nonimmigrant
that is at least 110 percent of the arithmetic mean of
the last wage earned by all such laid off individuals
(or, if greater, at least 110 percent of the arithmetic
mean of the highest wage earned by all such laid off
individuals within the most recent year if the other
employer reduced the wage of any such laid off
individual during such year other than in accordance
with a general company-wide reduction of wages for
substantially all employees).
``(iv) For purposes of this subparagraph, the term `laid
off', with respect to an individual--
``(I) refers to the individual's loss of employment,
other than a discharge for inadequate performance,
cause, voluntary departure, or retirement, and
``(II) does not include any situation in which the
individual involved is offered, as an alternative to
such loss of employment, a similar job opportunity with
the same employer (or with the H-1B-dependent employer
described in clause (ii)) carrying equivalent or higher
compensation and benefits as the position from which
the employee was laid off, regardless of whether or not
the employee accepts the offer.
``(v) For purposes of this subparagraph, the term `protected
individual' means an individual who--
``(I) is a citizen or national of the United States,
or
``(II) is an alien who is lawfully admitted for
permanent residence, is granted the status of an alien
lawfully admitted for temporary residence under section
210(a), 210A(a), or 245(a)(1), is admitted as a refugee
under section 207, or is granted asylum under section
208.''.
(2) Section 212(n)(2) (8 U.S.C. 1182(n)(2)), as amended by subsection
(b)(1), is amended by adding at the end the following new subparagraph:
``(G) Under regulations of the Secretary, the previous provisions of
this paragraph shall apply to complaints respecting a failure of an
other employer to comply with an attestation described in paragraph
(1)(E)(iii)(I) in the same manner that they apply to complaints with
respect to a failure to comply with a condition described in paragraph
(1)(E)(i).''.
(3) Section 212(n)(2)(C) (8 U.S.C. 1182(n)(2)(C)) is amended by
inserting ``or (1)(E)'' after ``(1)(B)''.
(d) Increased Penalties.--Section 212(n)(2) is amended--
(1) in subparagraph (C)(i), by striking ``$1,000'' and
inserting ``$5,000'';
(2) by amending subparagraph (C)(ii) to read as follows:
``(ii) the Attorney General shall not approve petitions filed
with respect to that employer (or any employer who is a
successor in interest) under section 204 or 214(c) for aliens
to be employed by the employer--
``(I) during a period of at least 1 year in the case
of the first determination of a violation or any
subsequent determination of a violation occurring
within 1 year of that first violation or any subsequent
determination of a nonwillful violation occurring more
than 1 year after the first violation;
``(II) during a period of at least 5 years in the
case of a determination of a willful violation
occurring more than 1 year after the first violation;
and
``(III) at any time in the case of a determination of
a willful violation occurring more than 5 years after a
violation described in subclause (II).''; and
(3) in subparagraph (D), by adding at the end the following:
``If a penalty under subparagraph (C) has been imposed in the
case of a willful violation, the Secretary shall impose on the
employer a civil monetary penalty in an amount equalling twice
the amount of backpay.''.
(e) Computation of Prevailing Wage Level.--Section 212(n) (8 U.S.C.
1182(n)), as amended by subsections (a) and (b)(2), is further amended
by adding at the end the following new paragraph:
``(7) In computing the prevailing wage level for an occupational
classification in an area of employment for purposes of paragraph
(1)(A)(i)(II) and subsection (a)(5)(A) in the case of an employee of
(A) an institution of higher education (as defined in section 1201(a)
of the Higher Education Act of 1965), or a related or affiliated
nonprofit entity, or (B) a nonprofit scientific research organization,
the prevailing wage level shall only take into account employees at
such institutions and entities in the area of employment.''.
(f) Conforming Amendments.--Section 212(n) (8 U.S.C. 1182(n)) is
further amended--
(1) in the matter in paragraph (1) before subparagraph (A),
by inserting ``(in this subsection referred to as an `H-1B
nonimmigrant')'' after ``101(a)(15)(H)(i)(b)''; and
(2) in paragraph (1)(A), by striking ``nonimmigrant described
in section 101(a)(15)(H)(i)(b)'' and inserting ``H-1B
nonimmigrant''.
(g) Effective Dates.--
(1) Except as otherwise provided in this subsection, the
amendments made by this section shall take effect on the date
of the enactment of this Act and shall apply to applications
filed with the Secretary of Labor on or after 30 days after the
date of the enactment of this Act.
(2) The amendments made by subsection (b)(3) shall apply to
complaints filed, and to investigations or hearings initiated,
on or after January 19, 1995.
SEC. 807. VALIDITY OF PERIOD OF VISAS.
(a) Extension of Validity of Immigrant Visas to 6 Months.--Section
221(c) (8 U.S.C. 1201(c)) is amended by striking ``four months'' and
inserting ``six months''.
(b) Authorizing Application of Reciprocity Rule for Nonimmigrant Visa
in Case of Refugees and Permanent Residents.--Such section is further
amended by inserting before the period at the end of the third sentence
the following: ``; except that in the case of aliens who are nationals
of a foreign country and who either are granted refugee status and
firmly resettled in another foreign country or are granted permanent
residence and residing in another foreign country, the Secretary of
State may prescribe the period of validity of such a visa based upon
the treatment granted by that other foreign country to alien refugees
and permanent residents, respectively, in the United States''.
SEC. 808. LIMITATION ON ADJUSTMENT OF STATUS OF INDIVIDUALS NOT
LAWFULLY PRESENT IN THE UNITED STATES.
(a) In General.--Section 245(i)(1) (8 U.S.C. 1255), as added by
section 506(b) of the Department of State and Related Agencies
Appropriations Act, 1995 (Public Law 103-317, 108 Stat. 1765), is
amended by striking all that follows ``equalling'' through
``application,'' and inserting ``$2,500''.
(b) Elimination of Limitation.--Section 212 (8 U.S.C. 1182) is
amended by striking subsection (o).
(c) Effective Date.--The amendments made by this section shall apply
to applications for adjustment of status filed after September 30,
1996.
SEC. 809. LIMITED ACCESS TO CERTAIN CONFIDENTIAL INS FILES.
(a) Legalization Program.--Section 245A(c)(5) (8 U.S.C. 1255a(c)(5))
is amended--
(1) by redesignating subparagraphs (A) through (C) as clauses
(i) through (iii), respectively;
(2) by striking ``Neither'' and inserting ``(A) Except as
provided in this paragraph, neither'';
(3) by redesignating the last sentence as subparagraph (D);
(4) by striking the semicolon and inserting a period;
(5) by striking ``except that the'' and inserting the
following:
``(B) The'';
(6) by inserting after subparagraph (B), as created by the
amendment made by paragraph (5), the following:
``(C) The Attorney General may authorize an application to a
Federal court of competent jurisdiction for, and a judge of
such court may grant, an order authorizing disclosure of
information contained in the application of the alien under
this section to be used--
``(i) for identification of the alien when there is
reason to believe that the alien has been killed or
severely incapacitated; or
``(ii) for criminal law enforcement purposes against
the alien whose application is to be disclosed if the
alleged criminal activity occurred after the
legalization application was filed and such activity
involves terrorist activity or poses either an
immediate risk to life or to national security, or
would be prosecutable as an aggravated felony, but
without regard to the length of sentence that could be
imposed on the applicant.''; and
(7) by adding at the end the following new subparagraph:
``(E) Nothing in this paragraph shall preclude the release
for immigration enforcement purposes of the following
information contained in files or records of the Service
pertaining to the application:
``(i) The immigration status of the applicant on any
given date after the date of filing the application
(including whether the applicant was authorized to
work) but only for purposes of a determination of
whether the applicant is eligible for relief from
deportation or removal and not otherwise.
``(ii) The date of the applicant's adjustment (if
any) to the status of an alien lawfully admitted for
permanent residence.
``(iii) Information concerning whether the applicant
has been convicted of a crime occurring after the date
of filing the application.
``(iv) The date or disposition of the application.''.
(b) Special Agricultural Worker Program.--Section 210(b) of such Act
(8 U.S.C. 1160(b)) is amended--
(1) in paragraph (5), by inserting ``, except as permitted
under paragraph (6)(B)'' after ``consent of the alien''; and
(2) in paragraph (6)--
(A) in subparagraph (A), by striking the period at
the end and inserting a comma,
(B) by redesignating subparagraphs (A) through (C) as
clauses (i) through (iii), respectively,
(C) by striking ``Neither'' and inserting ``(A)
Except as provided in subparagraph (B), neither'',
(D) by striking ``Anyone'' and inserting the
following:
``(C) Anyone'',
(E) by inserting after the first sentence the
following:
``(B) The Attorney General may authorize an application to a
Federal court of competent jurisdiction for, and a judge of
such court may grant, an order authorizing disclosure of
information contained in the application of the alien to be
used--
``(i) for identification of the alien when there is
reason to believe that the alien has been killed or
severely incapacitated, or
``(ii) for criminal law enforcement purposes against
the alien whose application is to be disclosed if the
alleged criminal activity occurred after the special
agricultural worker application was filed and such
activity involves terrorist activity or poses either an
immediate risk to life or to national security, or
would be prosecutable as an aggravated felony, but
without regard to the length of sentence that could be
imposed on the applicant.'', and
(F) by adding at the end the following new
subparagraph:
``(D) Nothing in this paragraph shall preclude the release
for immigration enforcement purposes of the following
information contained in files or records of the Service
pertaining to the application:
``(i) The immigration status of the applicant on any
given date after the date of filing the application
(including whether the applicant was authorized to
work).
``(ii) The date of the applicant's adjustment (if
any) to the status of an alien lawfully admitted for
permanent residence.
``(iii) Information concerning whether the applicant
has been convicted of a crime occurring after the date
of filing the application.
``(iv) The date or disposition of the application.''.
SEC. 810. CHANGE OF NONIMMIGRANT CLASSIFICATION.
Section 248 (8 U.S.C. 1258) is amended by inserting at the end the
following:
``Any alien whose status is changed under this section may apply to the
Secretary of State for a visa without having to leave the United States
and apply at the visa office.''.
Subtitle B--Other Provisions
SEC. 831. COMMISSION REPORT ON FRAUD ASSOCIATED WITH BIRTH
CERTIFICATES.
Section 141 of the Immigration Act of 1990 is amended--
(1) in subsection (b)--
(A) by striking ``and'' at the end of paragraph (1),
(B) by striking the period at the end of paragraph
(2) and inserting ``; and'', and
(C) by adding at the end the following new paragraph:
``(3) transmit to Congress, not later than January 1, 1997, a
report containing recommendations (consistent with subsection
(c)(3)) of methods of reducing or eliminating the fraudulent
use of birth certificates for the purpose of obtaining other
identity documents that may be used in securing immigration,
employment, or other benefits.''; and
(2) by adding at the end of subsection (c), the following new
paragraph:
``(3) For report on reducing birth certificate fraud.--In the
report described in subsection (b)(3), the Commission shall
consider and analyze the feasibility of--
``(A) establishing national standards for
counterfeit-resistant birth certificates, and
``(B) limiting the issuance of official copies of a
birth certificate of an individual to anyone other than
the individual or others acting on behalf of the
individual.''.
SEC. 832. UNIFORM VITAL STATISTICS.
(a) Pilot Program.--The Secretary of Health and Human Services shall
consult with the State agency responsible for registration and
certification of births and deaths and, within 2 years of the date of
enactment of this Act, shall establish a pilot program for 3 of the 5
States with the largest number of undocumented aliens of an electronic
network linking the vital statistics records of such States. The
network shall provide, where practical, for the matching of deaths with
births and shall enable the confirmation of births and deaths of
citizens of such States, or of aliens within such States, by any
Federal or State agency or official in the performance of official
duties. The Secretary and participating State agencies shall institute
measures to achieve uniform and accurate reporting of vital statistics
into the pilot program network, to protect the integrity of the
registration and certification process, and to prevent fraud against
the Government and other persons through the use of false birth or
death certificates.
(b) Report.--Not later than 180 days after the establishment of the
pilot program under subsection (a), the Secretary shall issue a written
report to Congress with recommendations on how the pilot program could
effectively be instituted as a national network for the United States.
(c) Authorization of Appropriations.--There are authorized to be
appropriated for fiscal year 1996 and for subsequent fiscal years such
sums as may be necessary to carry out this section.
SEC. 833. COMMUNICATION BETWEEN STATE AND LOCAL GOVERNMENT AGENCIES,
AND THE IMMIGRATION AND NATURALIZATION SERVICE.
Notwithstanding any other provision of Federal, State, or local law,
no State or local government entity shall prohibit, or in any way
restrict, any government entity or any official within its jurisdiction
from sending to or receiving from the Immigration and Naturalization
Service information regarding the immigration status, lawful or
unlawful, of an alien in the United States. Notwithstanding any other
provision of Federal, State, or local law (and excepting the attorney-
client privilege), no State or local government entity may be
prohibited, or in any way restricted, from sending to or receiving from
the Immigration and Naturalization Service information regarding the
immigration status, lawful or unlawful, of an alien in the United
States.
SEC. 834. CRIMINAL ALIEN REIMBURSEMENT COSTS.
Amounts appropriated to carry out section 501 of the Immigration and
Reform Act of 1986 for fiscal year 1995 shall be available to carry out
section 242(j) of the Immigration and Nationality Act in that fiscal
year with respect to undocumented criminal aliens incarcerated under
the authority of political subdivisions of a State.
SEC. 835. FEMALE GENITAL MUTILATION.
(a) Information Regarding Female Genital Mutilation.--The Immigration
and Naturalization Service (in cooperation with the Department of
State) shall make available for all aliens who are issued immigrant or
nonimmigrant visas, prior to or at the time of entry into the United
States, the following information:
(1) Information on the severe harm to physical and
psychological health caused by female genital mutilation which
is compiled and presented in a manner which is limited to the
practice itself and respectful to the cultural values of the
societies in which such practice takes place.
(2) Information concerning potential legal consequences in
the United States for (A) performing female genital mutilation,
or (B) allowing a child under his or her care to be subjected
to female genital mutilation, under criminal or child
protection statutes or as a form of child abuse.
(b) Limitation.--In consultation with the Secretary of State, the
Commissioner of Immigration and Naturalization shall identify those
countries in which female genital mutilation is commonly practiced and,
to the extent practicable, limit the provision of information under
subsection (a) to aliens from such countries.
(c) Definition.--For purposes of this section, the term ``female
genital mutilation'' means the removal or infibulation (or both) of the
whole or part of the clitoris, the labia minora, or labia majora.
SEC. 836. DESIGNATION OF PORTUGAL AS A VISA WAIVER PILOT PROGRAM
COUNTRY WITH PROBATIONARY STATUS.
Notwithstanding any other provision of law, Portugal is designated as
a visa waiver pilot program country with probationary status under
section 217(g) of the Immigration and Nationality Act for each of the
fiscal years 1996, 1997, and 1998.
Subtitle C--Technical Corrections
SEC. 851. MISCELLANEOUS TECHNICAL CORRECTIONS.
(a) Amendments Relating to Public Law 103-322 (Violent Crime Control
and Law Enforcement Act of 1994).--
(1) Section 60024(1)(F) of the Violent Crime Control and Law
Enforcement Act of 1994 (Public Law 103-322) (in this
subsection referred to as ``VCCLEA'') is amended by inserting
``United States Code,'' after ``title 18,''.
(2) Section 130003(b)(3) of VCCLEA is amended by striking
``Naturalization'' and inserting ``Nationality''.
(3)(A) Section 214 (8 U.S.C. 1184) is amended by
redesignating the subsection (j), added by section 130003(b)(2)
of VCCLEA (108 Stat. 2025), and the subsection (k), added by
section 220(b) of the Immigration and Nationality Technical
Amendments Act of 1994 (Public Law 103-416, 108 Stat. 4319), as
subsections (k) and (l), respectively.
(B) Section 101(a)(15)(S) (8 U.S.C. 1101(a)(15)(S)) is
amended by striking ``214(j)'' and inserting ``214(k)''.
(4)(A) Section 245 (8 U.S.C. 1255) is amended by
redesignating the subsection (i) added by section 130003(c)(1)
of VCCLEA as subsection (j).
(B) Section 241(a)(2)(A)(i)(I) (8 U.S.C.
1251(a)(2)(A)(i)(I)), as amended by section 130003(d) of VCCLEA
and before redesignation by section 305(a)(2), is amended by
striking ``245(i)'' and inserting ``245(j)''.
(5) Section 245(j)(3), as added by section 130003(c)(1) of
VCCLEA and as redesignated by paragraph (4)(A), is amended by
striking ``paragraphs (1) or (2)'' and inserting ``paragraph
(1) or (2)''.
(6) Section 130007(a) of VCCLEA is amended by striking
``242A(d)'' and inserting ``242A(a)(3)''.
(7) The amendments made by this subsection shall be effective
as if included in the enactment of the VCCLEA.
(b) Amendments Relating to Immigration and Nationality Technical
Corrections Act of 1994.--
(1) Section 101(d) of the Immigration and Nationality
Technical Corrections Act of 1994 (Public Law 103-416) (in this
subsection referred to as ``INTCA'') is amended--
(A) by striking ``Application'' and all that follows
through ``This'' and inserting ``Applicability of
Transmission Requirements.--This'';
(B) by striking ``any residency or other retention
requirements for'' and inserting ``the application of
any provision of law relating to residence or physical
presence in the United States for purposes of
transmitting United States''; and
(C) by striking ``as in effect'' and all that follows
through the end and inserting ``to any person whose
claim is based on the amendment made by subsection (a)
or through whom such a claim is derived.''.
(2) Section 102 of INTCA is amended by adding at the end the
following new subsection:
``(e) Transition.--In applying the amendment made by subsection (a)
to children born before November 14, 1986, any reference in the matter
inserted by such amendment to `five years, at least two of which' is
deemed a reference to `10 years, at least 5 of which'.''.
(3) Section 351(a) (8 U.S.C. 1483(a)), as amended by section
105(a)(2)(A) of INTCA, is amended by striking the comma after
``nationality''.
(4) Section 207(2) of INTCA is amended by inserting a comma
after ``specified''.
(5) Section 101(a)(43) (8 U.S.C. 1101(a)(43)) is amended--
(A) in subparagraph (K)(ii), by striking the comma
after ``1588'', and
(B) in subparagraph (O), by striking ``suspicion''
and inserting ``suspension''.
(6) Section 273(b) (8 U.S.C. 1323(b)), as amended by section
209(a) of INTCA, is amended by striking ``remain'' and
inserting ``remains''.
(7) Section 209(a)(1) of INTCA is amended by striking
``$3000'' and inserting ``$3,000''.
(8) Section 209(b) of INTCA is amended by striking
``subsection'' and inserting ``section''.
(9) Section 217(f) (8 U.S.C. 1187(f)), as amended by section
210 of INTCA, is amended by adding a period at the end.
(10) Section 219(cc) of INTCA is amended by striking `` `year
1993 the first place it appears' '' and inserting `` `year
1993' the first place it appears''.
(11) Section 219(ee) of INTCA is amended by adding at the end
the following new paragraph:
``(3) The amendments made by this subsection shall take effect on the
date of the enactment of this Act.''.
(12) Paragraphs (4) and (6) of section 286(r) (8 U.S.C.
1356(r)) are amended by inserting ``the'' before ``Fund'' each
place it appears.
(13) Section 221 of INTCA is amended--
(A) by striking each semicolon and inserting a comma,
(B) by striking ``disasters.'' and inserting
``disasters,'', and
(C) by striking ``The official'' and inserting ``the
official''.
(14) Section 242A (8 U.S.C. 1252a), as added by section
224(a) of INTCA and before redesignation as section 238 by
section 308(b)(5), is amended by redesignating subsection (d)
as subsection (c).
(15) Section 225 of INTCA is amended--
(A) by striking ``section 242(i)'' and inserting
``sections 242(i) and 242A'', and
(B) by inserting ``, 1252a'' after ``1252(i)''.
(16) Except as otherwise provided in this subsection, the
amendments made by this subsection shall take effect as if
included in the enactment of INTCA.
(c) Striking References to Section 210A.--
(1)(A) Section 201(b)(1)(C) (8 U.S.C. 1151(b)(1)(C)) and
section 274B(a)(3)(B) (8 U.S.C. 1324b(a)(3)(B)) are each
amended by striking ``, 210A,''.
(B) Section 241(a)(1) (8 U.S.C. 1251(a)(1)), before
redesignation by section 305(a)(2), is amended by striking
subparagraph (F).
(2) Sections 204(c)(1)(D)(i) and 204(j)(4) of Immigration
Reform and Control Act of 1986 are each amended by striking ``,
210A,''.
(d) Miscellaneous Changes in the Immigration and Nationality Act.--
(1) Before being amended by section 308(a), the item in the
table of contents relating to section 242A is amended to read
as follows:
``Sec. 242A. Expedited deportation of aliens convicted of committing
aggravated felonies.''.
(2) Section 101(c)(1) (8 U.S.C. 1101(c)(1)) is amended by
striking ``, 321, and 322'' and inserting ``and 321''.
(3) Pursuant to section 6(b) of Public Law 103-272 (108 Stat.
1378)--
(A) section 214(f)(1) (8 U.S.C. 1184(f)(1)) is
amended by striking ``section 101(3) of the Federal
Aviation Act of 1958'' and inserting ``section
40102(a)(2) of title 49, United States Code''; and
(B) section 258(b)(2) (8 U.S.C. 1288(b)(2)) is
amended by striking ``section 105 or 106 of the
Hazardous Materials Transportation Act (49 U.S.C. App.
1804, 1805)'' and inserting ``section 5103(b), 5104,
5106, 5107, or 5110 of title 49, United States Code''.
(4) Section 286(h)(1)(A) (8 U.S.C. 1356(h)(1)(A)) is amended
by inserting a period after ``expended''.
(5) Section 286(h)(2)(A) (8 U.S.C. 1356(h)(2)(A)) is
amended--
(A) by striking ``and'' at the end of clause (iv),
(B) by moving clauses (v) and (vi) 2 ems to the left,
(C) by striking ``; and'' in clauses (v) and (vi) and
inserting ``and for'',
(D) by striking the colons in clauses (v) and (vi),
and
(E) by striking the period at the end of clause (v)
and inserting ``; and''.
(6) Section 412(b) (8 U.S.C. 1522(b)) is amended by striking
the comma after ``is authorized'' in paragraph (3) and after
``The Secretary'' in paragraph (4).
(e) Miscellaneous Change in the Immigration Act of 1990.--Section
161(c)(3) of the Immigration Act of 1990 is amended by striking ``an
an'' and inserting ``of an''.
(f) Miscellaneous Changes in Other Acts.--
(1) Section 506(a) of the Intelligence Authorization Act,
Fiscal Year 1990 (Public Law 101-193) is amended by striking
``this section'' and inserting ``such section''.
(2) Section 140 of the Foreign Relations Authorization Act,
Fiscal Years 1994 and 1995, as amended by section 505(2) of
Public Law 103-317, is amended--
(A) by moving the indentation of subsections (f) and
(g) 2 ems to the left, and
(B) in subsection (g), by striking ``(g)'' and all
that follows through ``shall'' and inserting ``(g)
Subsections (d) and (e) shall''.
Explanation of Amendment
Because H.R. 2202 was ordered reported with a single
amendment in the nature of a substitute, the contents of this
report constitute an explanation of that amendment.
Purpose and Summary
title i--border enforcement
The first step in asserting our national sovereignty and
controlling illegal immigration is to secure our nation's land
borders. This fundamental mission has been undermined in recent
decades by a lack of clear policy, inadequate resources, and a
defeatist attitude. The result is a crisis at the land border,
allowing hundreds of thousands of illegal aliens to cross each
year, and contributing more than half of the 300,000 to 400,000
annual growth in the illegal alien population. The problem is
not limited to illegal immigration from this hemisphere: alien
smugglers from around the globe have set routes through Latin
America and Canada to smuggle people into the United States.
More border patrol agents, enhanced training, and improved
border technology are all critical to regaining control over
our nation's borders. H.R. 2202 includes all of these reforms,
including a 1,000 annual increase in Border Patrol agents from
now until the end of the century. But H.R. 2202 does something
more--it requires a focus on prevention and deterrence of
illegal immigration, modeled after the successful ``Operation
Hold-the-Line'' in El Paso, Texas. H.R. 2202 also improves the
security of Border Crossing Identification Cards, so that such
cards will only be used by those who have been granted the
privilege of carrying them.
Finally, illegal immigration control is not simply a matter
of securing the land border. Close to half of illegal
immigrants enter on temporary visas and overstay. H.R. 2202
authorizes new resources for the prosecution of aliens with
multiple illegal entries, and establishes pilot programs: (1)
to deter multiple illegal entries into the United States
through strategies such as interior repatriation or third
country repatriation; (2) to use closed military facilities for
detention of illegal aliens; and (3) to create a system for
tracking the departures of temporary visitors.
title ii--enforcement against alien smuggling and document fraud
Illegal immigration is facilitated through criminal
activity: alien smuggling, often carried out by organized
criminal elements, and document fraud, including visa and
passport fraud. Federal law enforcement should have the same
tools to combat immigration crimes it does to combat other
serious crimes that threaten public safety and national
security. Thus, H.R. 2202 extends current wiretap and
undercover investigation authority to the investigation of
alien smuggling, document fraud, and other immigration-related
crimes. It increases criminal penalties for alien smuggling and
document fraud, establishes new civil penalties for document
fraud, and extends coverage of the federal anti-racketeering
statute (RICO) to organized criminal enterprises engaging in
such activity.
Title III--Reforming Procedures for Removal of Illegal Aliens
Existing procedures to deny entry to and to remove illegal
aliens from the United States are cumbersome and duplicative.
Removal of aliens who enter the United States illegally, even
those who are ordered deported after a full due process
hearing, is an all-too-rare event. The asylum system has been
abused by those who seek to use it as a means of ``backdoor''
immigration.
H.R. 2202 streamlines rules and procedures for removing
illegal aliens, and establishes special procedures for removing
alien terrorists. Aliens who arrive in the United States with
no valid documents will be removed on an expedited basis;
arriving aliens with credible asylum claims will be allowed to
pursue those claims. For illegal aliens already present in the
U.S., there will be a single form of removal proceeding, with a
streamlined appeal and removal process. To avoid removal,
aliens must establish in such proceedings that they are
entitled to be admitted or to remain in the United States.
Relief from deportation will be more strictly limited. Aliens
ordered removed who do not depart on time will be subject to
civil penalties and excluded from certain immigration benefits.
title iv--preventing employment of illegal aliens
The magnet of jobs is a driving force behind illegal
immigration. Despite federal laws prohibiting the hiring of
illegal aliens, and requiring the verification of eligibility
for all employees, an underground market in fraudulent
documents permits illegal aliens to gain employment. Recent INS
crackdowns demonstrate that illegal aliens work in a variety of
industries and take jobs that could otherwise be filled by
American workers. Enforcement, however, is hampered by a system
that is difficult to implement and invites document fraud.
H.R. 2202 cuts from 29 to 6 the number of acceptable
documents to establish eligibility to work. It also establishes
pilot projects, to be operated in States with high levels of
illegal immigration, for employers to verify through a simple
phone call or computer message an employee's authorization to
work. The system will work through existing databases, and not
require creation of any new government database. The system
also will assure employers that the employment eligibility
information provided to them by employees is genuine. The
system could not be established on a national basis without
prior approval by Congress. H.R. 2202 also establishes pilot
projects to improve the security of birth certificates and
birth/death registries, all of which have been subject to
fraudulent use by illegal immigrants for gaining work, public
benefits, and even, in some cases, voting privileges.
Title V--Legal Immigration Reform
Congress has the task to set legal immigration policy that
serves the national interest. As a result of the immigration
bills passed in 1965, 1986, and 1990, there has been a dramatic
increase in the overall levels of legal immigration. In
addition, the percentage of immigrants admitted without regard
to their level of education or skills now exceeds 80 percent.
Since 1981, we have admitted a total of 12.5 million legal
immigrants. During this period, we have admitted at least
500,000 immigrants each year, and during the past 5 years, an
average of close to 1 million per year.
Such sustained, uninterrupted growth in immigration is
without precedent in American history. So is the underlying
rationale of many that immigration is a right, not a privilege.
The entitlement theory, which seeks to fit immigration policy
to the demands of those who would like to immigrate to the
United States, has made it increasingly difficult to establish
a policy that selects immigrants according to their ability to
advance our national interests.
A central failure of the current system is the admissions
backlog for spouses and minor children of lawful permanent
residents, which now numbers 1.1 million. This means that
nuclear family members can be kept separated for years. Even
larger backlogs exist in categories for adult, ``extended
family'' immigrants. These backlogs undermine the credibility
of the system by forcing people who are technically eligible to
immigrate to wait for years, sometimes decades, before they can
legally come to the U.S. The existence of these categories thus
creates expectations that cannot possibly be met within the
capacity of the current system. These failed expectations
encourage many waiting in line to immigrate illegally to the
U.S.
The key to legal immigration reform is stating clear
priorities that reflect the national interest. H.R. 2202 will
better match the attributes of immigrants with the needs of the
American economy, by increasing the number of visas available
for highly-skilled and educated immigrants and by decreasing
the proportion of immigrants admitted without regard to their
level of skill and education. The bill also will put nuclear
families first by giving priority to the admission of spouses
and children of United States citizens, and for 5 years,
doubling the number of visas for nuclear family members of
legal permanent residents. The bill also preserves America's
traditional role of leadership in refugee and other
humanitarian immigration. While reforming legal immigration to
end the ``entitlement'' attitude, H.R. 2202 maintains levels of
legal immigration that are generous by historic standards:
approximately 3.5 million immigrants would be admitted during
the first 5 years.
Title VI--Immigrants and Public Benefits
Immigrants should be self-sufficient. Yet, the most
reliable studies show that immigrants receive $25 billion more
in direct public benefits than they contribute in taxes--$16
billion for direct cash benefits and $9 billion for non-cash
benefits such as Food Stamps and Medicaid. In addition,
immigrant participation in Supplemental Security Income (SSI)
has risen 580 percent during the past dozen years. H.R. 2202
reinforces prohibitions against receipt of public benefits by
illegal immigrants, makes enforceable the grounds for denying
entry or removing aliens who are or are likely to become a
public charge, and makes those who agree to sponsor immigrants
legally responsible to support them.
Title VII--Facilitation of Legal Entry
To facilitate legal entry and deter fraud, H.R. 2202 will
increase the number of INS and Customs Service inspectors at
border ports of entry, expand preinspection services at
overseas airports, and require more training of airline
personnel in detecting fraudulent documents.
Title VIII--Temporary Skilled Workers and Miscellaneous Provisions
To remain competitive in world markets, American business
needs access to skilled foreign workers. The nonimmigrant H-1B
visa permits such persons to work in the United States for up
to six years. However, American workers need protection against
abuse of the H-1B program by those employers who seek to
replace native workers with lower-paid foreign workers. H.R.
2202 strikes a balance between these interests, removing
excessive regulatory burdens from businesses who are not
dependent on H-1B workers and who do not abuse the program,
while prohibiting the use of the program to replace laid-off
American workers.
Background and Need for the Legislation
As a nation of immigrants, the United States has a singular
interest that its immigration laws encourage the admission of
persons who will enrich our society. President Ronald Reagan
aptly observed that our nation is ``an island of freedom,''
political and economic, toward which the world has looked as
both protector and exemplar. Unlimited immigration, however, is
a moral and practical impossibility. We live in an age where
the nations of the world are called upon to resolve the root
causes--political, economic, and humanitarian--of migration
pressures. In this context, the United States must exercise its
national sovereignty to control its borders and pursue an
immigration policy that serves the fundamental needs of the
nation. In the words of the 1981 report of the Select
Commission on Immigration and Refugee Policy (``Select
Commission''), ``[o]ur policy--while providing opportunity for
a portion of the world's population--must be guided by the
basic national interests of the United States.'' 1
\1\ ``Select Commission on Immigration and Refugee Policy, U.S.
Immigration Policy and the National Interest,'' Joint Committee Print
No. 8, Committees on the Judiciary of the House of Representatives and
the United States Senate, 97th Cong., 1st Sess. 3 (1981) (referred to
hereinafter as 1991 Select Commission Report).
---------------------------------------------------------------------------
During the ensuing 15 years, that basic message has been
lost. Serious immigration reform has been frustrated by our
failure to define the national interests that must be served by
U.S. immigration policy. A pervasive sense exists among the
public that the Federal Government lacks the will and the means
to enforce existing immigration laws.
The symptoms of this failure are manifest: four million
illegal aliens residing in the United States, with an annual
increase in illegal immigration of more than 300,000; tens of
thousands of overseas visitors each year who overstay their
visas and remain in the United States illegally; a deportation
process that removes only a small fraction of illegal aliens;
an asylum adjudications backlog of over 400,000; a program of
employer sanctions that is confusing for employers, riddled
with document fraud, and ineffective in deterring both the
hiring of illegal aliens and the illegal entry of aliens
seeking employment; and a legal immigration system that fails
to unite nuclear families promptly, encourages the ``chain
migration'' of extended families, and admits a vast majority of
immigrants without any regard to levels of education or job
skills.
H.R. 2202 seeks a fundamental re-orientation of
immigration policy in the direction of the national interest.
The Act will curb illegal immigration and establish a legal
immigration system that is generous by historic standards and
serves fundamental family, economic, and humanitarian needs.
The bill is comprehensive because the crisis is so deep and the
challenges presented by legal and illegal immigration so
closely intertwined. All aspects of immigration law must be
reformed to provide clear direction and purpose to those
responsible for their enforcement, and to eliminate to the
greatest possible extent special provisions and exceptions that
detract from these fundamental purposes. In short, our
immigration laws should enable the prompt admission of those
who are entitled to be admitted, the prompt exclusion or
removal of those who are not so entitled, and the clear
distinction between these categories.
To place H.R. 2202 in its proper context, a more detailed
assessment of current immigration problems and past efforts and
proposals for reform is appropriate.
I. Illegal Immigration
The challenge of combatting illegal immigration is but one
facet of the vast overall demand on the United States
immigration system. As explained by the U.S. Commission on
Immigration Reform in its 1994 report to Congress:
Each year U.S. land and air borders face inspection
of approximately 500 million people seeking entry. In
1993, approximately 409 million people were inspected
at U.S. land ports of entry, 55 million at airports,
and 9 million at seaports. This number does not include
illegal entrants or individuals apprehended while
attempting to enter illegally. The Immigration and
Naturalization Service (INS) estimated in 1992 that
there were 3.4 million ``permanent'' illegal aliens in
the U.S. Of this population, roughly one-half entered
legally by air and overstayed their visas and the other
one-half entered without inspection by land or
sea.2
\2\ U.S. Commission on Immigration Reform, U.S. Immigration Policy:
Restoring Credibility 47 (1994) (emphasis supplied) (referred to
hereinafter as 1994 Commission Report).
The INS estimates that there is a net annual increase of
300,000 in the illegal alien population. Thus, the number of
``permanent'' illegal aliens exceeds 4 million. To halt this
increase and make actual cuts in the size of the illegal
immigrant population, immigration policy must address both
illegal border crossings and the phenomenon of ``visa
overstays.''
Illegal border-crossing
Perhaps the most visible illustration of the failures of
immigration enforcement is the continued high level of illegal
migration across the land borders of the United States,
particularly in the Southwest. Precise measurement of this
migration flow is elusive. The INS traditionally has relied
upon apprehension statistics for this task, but such statistics
are a flawed measure of both the rate of illegal migration and
the success of enforcement. As the U.S. Commission on
Immigration Reform has stated, ``[t]he most effective border
control strategy would produce an apprehension rate of zero.
So, too, would a complete failure of border control.'' 3
Despite these shortcomings, apprehension statistics show the
growing extent of the problem.
\3\ 1994 Commission Report at 57.
Years Apprehensions
1931-1940.............................................. 147,457
1941-1950.............................................. 1,377,210
1951-1960.............................................. 3,598,949
1961-1970.............................................. 1,608,356
1971-1980.............................................. 8,321,498
1981-1990.............................................. 11,883,328
1991-1994.............................................. 4,778,333
For virtually all of this period, apprehension of aliens
shortly after they have crossed the border, or at destinations
further in the interior, has been the backbone of INS and
Border Patrol enforcement strategy. Deterrent-based strategies
had not been attempted, despite the 1981 observation of the
Select Commission that ``[i]t is both more humane and cost
effective to deter people from entering the United States than
it is to locate and remove them from the interior.'' 4 The
choice of strategy was dictated in part by a lack of resources:
the Select Commission noted that ``[a]t any given hour no more
than 450 Border Patrol agents are directly engaged in
activities to stop persons attempting to enter the United
States without inspection.'' 5
\4\ 1981 Select Commission Report at 47.
\5\ 1981 Select Commission Report at 48.
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Another symbol of America's past failure to take seriously
the problem of illegal immigration has been the reluctance to
use secure fences to prevent illegal border crossings. In
general, physical barriers can assist the Border Patrol to
deter illegal crossings, channel aliens to locations where they
can be most easily apprehended, and reduce crime and violence
at the border.
In recent years, the approach to border enforcement has
changed. Chain-link fences have been replaced in certain high-
traffic areas by more resistant structures. Section 542 of the
Immigration Act of 1990 authorized the appropriation of funds
for the ``repair, maintenance, or construction on the United
States border, in areas experiencing high levels of
apprehensions of illegal aliens, of structures to deter illegal
entry to the United States.'' Just as visible has been the
deployment of border patrol agents directly on or in close
vicinity to the border, to create a visible deterrent to
potential illegal immigrants. This approach was initiated by
Chief Silvestre Reyes of the El Paso Border Patrol Sector in
September 1993, when he ordered 400 of his 650 agents to be
deployed on a 24-hour basis directly on the border, stationed
in their vehicles at distances ranging from 50 yards to a
quarter mile. Regular helicopter patrols were established. The
border fence, which has numerous holes and was breachable in
125 locations, was repaired and maintained. Originally
conceived as a two-week pilot program called ``Operation
Blockade,'' Chief Reyes' strategy has become a standing
initiative, ``Operation Hold-the-Line.''
Operation Hold-the-Line represented a fundamental change
in strategy for control of the border. As in other areas,
illegal crossings into El Paso had been largely tolerated and
enforcement efforts were directed at apprehending aliens who
attempted to remain in the United States for extended periods
of time. Only about 15 percent of the estimated 8,000 to 10,000
persons who crossed the border illegally each day in the El
Paso Sector were apprehended. Under Operation Hold-the-Line,
illegal crossings have been substantially deterred, with
apprehensions of illegal aliens within El Paso dropping by as
much as 75 percent. Petty street crime and property crime has
been reduced, as has the occurrence of more serious property
and violent crimes. The Operation also has led to the seizure
of more illegal drugs and other contraband. The Operation has
had overwhelming public support in El Paso, including in the
Mexican American community. Complaints against the Border
Patrol have been reduced because there are fewer apprehensions
and pursuits of aliens. The change has been particularly
noticed in schools lying close to the border, which are now
considered safer for students.6
\6\ Bean, et al., Illegal Mexican Migration and the United States/
Mexico Border: The Effects of Operation Hold-the-Line on El Paso/Juarez
(July 1994) (Report prepared for the U.S. Commission on Immigration
Reform by the Population Research Center at the University of Texas at
Austin); General Accounting Office, Border Control: Revised Strategy is
Showing Some Positive Results (December 1994) (Report to the
Subcommittee on Information, Justice, Transportation and Agriculture of
the House Committee on Government Operations).
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The success of Operation Hold-the-Line has led both the
Commission on Immigration Reform and the General Accounting
Office to urge adoption of similar deterrence strategies as the
prevalent form of enforcement along the southern border.7
The Commission recommended a comprehensive approach to deal
with the changing crossing patterns that resulted from stepped-
up enforcement in the El Paso area. The GAO concluded that the
national border patrol strategy adopted by the INS shows
promise for success in reducing illegal immigration and is
consistent with previous recommendations for securing the
border.
\7\ 1994 Commission Report at 49; Border Control: Revised Strategy
Is Showing Some Results, supra note 6. See also ``Border Security:
Hearing Before the Subcomm. on Immigration and Claims of the House
Comm. on the Judiciary,'' 104th Cong., 1st Sess. 102-110 (March 10,
1995) (Statement of Laurie E. Ekstrand, General Accounting Office).
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The INS also has recently adopted a deterrence strategy in
the heavily-travelled San Diego sector. This initiative, called
``Operation Gatekeeper,'' entails assignment of additional
Border Patrol agents in the sector, deployment of agents in
close proximity to the border, although not directly on the
border as in El Paso, completion of new fences and roads along
the border (an initiative started and substantially completed
during the Bush Administration), and installation of additional
lighting. The INS now also fingerprints all aliens apprehended
in the sector in order to identify aliens with criminal
records, track aliens who repeatedly try to cross the border
illegally, and measure the effectiveness of the new border
control measures.
The impact of Operation Gatekeeper has been favorable, but
not as dramatic as Operation Hold-the-Line. Border Patrol
agents have been concentrated in the western end of the sector,
and construction of a steel fence extending into the Pacific
Ocean and to a point 14 miles inland from the coast, is nearly
complete. As a result, apprehensions of illegal aliens have
fallen most markedly in the Imperial Beach area, adjacent to
the Pacific Ocean, but illegal alien traffic has greatly
increased in the eastern portion of the San Diego sector, and
overall apprehensions in the sector have actually increased.
The fingerprinting process has identified large numbers of
repeat border-crossers, some of whom are being prosecuted.
Despite these initial successes, the challenge of securing
the border over the long term will prove to be difficult. One
seemingly intractable problem is repeat border-crossings. Many
of these aliens eventually escape apprehension and thus add to
the illegal alien population. All of them add to the
enforcement burdens of the INS. The INS has previously
attempted efforts at interior repatriation of such aliens,
returning them to places hundreds of miles from the border
rather than directly across the border where they are free
immediately to attempt another illegal entry. This program was
dropped, but should be reinstituted as part of the broader
deterrence strategy. In addition, stronger bilateral efforts
with the Mexican Government should be undertaken, especially in
the area of cross-border crimes and alien smuggling. These are
genuine issues of national security and public safety
exacerbated by the U.S. government's failure to control the
border.
Based on the experience in El Paso and San Diego, Congress
should establish as a fundamental strategy for immigration
enforcement the deterrence of illegal migration across the land
borders of the United States. Such a strategy is preferable to
one based on interior apprehension of illegal aliens because of
the costs associated with apprehending and deporting an alien
from the interior. The INS should be given the resources to
carry out a deterrence strategy at all appropriate locations
along the borders, as well as the necessary direction from
Congress to use the resources in this fashion. A pilot program
for interior repatriation should be reinstituted, along with
technological measures to combat illegal border crossing.
An additional problem in border enforcement has been abuse
of the Border Crossing Identification Card, used primarily by
citizens of Mexico in lieu of visas for visits to the United
States within 25 miles of the border for up to 72 hours.
(Canadian citizens and landed immigrants from Commonwealth
nations are not required to have a visa to enter the United
States, and thus generally do not require a border crossing
card.) Approximately 200,000 cards are issued annually. The
Commission on Immigration Reform and the INS have both
identified a troubling instance of fraud associated with these
cards. In 1993, 24,236 cards were intercepted after issuance
for counterfeiting, alteration, use by impostors, or violations
of the conditions of usage, such as engaging in employment.
These problems should come as little surprise. Despite the high
incidence of illegal immigration across the land border with
Mexico, the cards have heretofore been issued without security
features. Until recently, in fact, border crossing cards were
issued on a permanent basis, meaning that aliens could hold a
card for years or even decades without renewal. The high demand
for the cards has resulted both in backlogs of individuals
waiting to receive cards and hasty adjudication of
applications. In some recent cases, individuals with criminal
records have been issued border crossing cards.
The INS has recently taken some steps to improve the
security of these cards and to ensure that only aliens entitled
to the privilege are issued cards. H.R. 2202 requires specific
improvements to be made in all new and existing cards within 3
years.
Visa overstays
A ``visa overstay'' is an alien who has been admitted to
the United States as a nonimmigrant visitor (often as a
student, tourist, or businessperson) but who stays in the
United States beyond the expiration of the visa and lives here
as an illegal alien.8 Despite the magnitude of this
problem, it has only recently been recognized as a leading
component of the illegal alien population in the U.S. Moreover,
no one is certain of how many people overstay their visas, how
long they do so, and how they support themselves. Methods of
calculating if and when persons with temporary visas leave the
U.S. are haphazard.9
\8\ Although they are ``legally'' admitted, nonimmigrant visa
holders who intend to come to the United States and stay permanently
are technically ``illegal'' immigrants from the time of their arrival
in the United States. A person who obtains a nonimmigrant visa
intending to remain in the U.S. indefinitely has committed visa fraud
and is excludable under INA Sec. 212(a)(6)(C)(i). Most aliens who
intend to overstay their visas are not apprehended upon entry, and
still others make the decision to overstay after they have arrived.
Such aliens are subject to deportation under section 241(a)(1)(C).
\9\ See generally, ``Foreign Visitors Who Violate the Terms of the
Their Visas by Remaining in the United States Indefinitely: Hearing
Before the Subcomm. on Immigration and Claims of the House Comm. on the
Judiciary,'' 104th Cong., 1st Sess. (Feb. 24, 1995) (cited hereinafter
as Hearing: Foreign Visitors Who Overstay).
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Without a reliable system, the INS has no means to
determine exactly how many people who arrive in the United
States as visitors actually depart, and who they are.
Currently, all foreign visitors complete an I-94 arrival/
departure form prior to arrival in the United States. The
arrival portion of the I-94 is turned over to the INS inspector
at the port of entry. However, because the departure portion of
the form is collected by the air carrier when the alien
departs, and the collection process by carriers is uneven, the
data is not reliable.
The INS can estimate ``apparent overstays'' by simply
counting the number of arrival forms without matching departure
forms. However, the INS has concluded that the majority of
``apparent overstays'' are actually the result of incomplete
collection of the departure forms. After correcting for this
high rate of system error, the INS calculated that the number
of visa overstays in 1992 was 305,000, and the visa overstay
rate is 1.5 percent. The number of overstays has increased
since the mid-1980s, while the rate has decreased, owing to the
overall growth in the number of visas issued to foreign
visitors. The INS estimates that more than 80 percent of
nonimmigrant overstays have received a B-2 (tourist) visa. Most
of the remaining percentage entered on a B-1 (business visitor)
visa.
Visa overstay rates vary among regions of the world.
Overstay percentages from Europe are always well below the
average percentage for other countries, but nevertheless
account for 15-20 percent of the aggregate total. Leading
countries are Italy, Poland, and, recently, the former Soviet
Union. Overstay rates from Asia run slightly below the average
percentage for other countries, and account for numbers roughly
equal to those of Europe. The leading country from the region
by far is the Philippines, with India, China, and Hong Kong
also contributing significant numbers. North America (including
Central America) produces both the highest rate and highest
percentage of visa overstays. This is chiefly attributable to
Mexico, where the estimated number of overstays rose from
25,000 in 1985 to 60,000 in 1992. The Bahamas (13,000 in 1992),
Jamaica (9,000), Haiti (9,000) and Central America (22,000)
also produce significant numbers, especially given their
limited populations. Overstay rates from Africa are relatively
high, but the overall numbers are relatively low. This may be
due in part to the limited number of nonimmigrant visas issued
in some African nations. Both the overstay rate and overstay
numbers from South America are modest.
The phenomenon of visa overstays presents specific problems
for immigration enforcement. First, visa overstayers spread the
illegal immigration problem to regions outside of the border
states, and due to their diverse character (many visa
overstayers have more advanced education and skills than
typical illegal land border entrants), to various sectors of
the economy. Second, visa overstayers account for a substantial
portion of those waiting in the ``asylum backlog''--the
estimated 400,000 persons who are waiting for adjudication by
the INS of their asylum claims. While some of these people have
legitimate claims, many have filed the asylum claim as a means
of remaining in the United States indefinitely. Third,
obstacles to enforcement against this phenomenon are likely to
remain (or increase) with the further globalization of the
economy and rise in the number of legitimate visitors to the
United States. A more lengthy or intrusive inspections process
at ports of entry might identify more aliens who intend to
overstay, but at the price of convenience for the vast majority
of legitimate visitors. Another alternative would be more
extensive processing by consular officers of requests for
nonimmigrant visas. This would require a greater commitment of
resources to the consular bureau within the Department of
State.
Perhaps as a result of these difficulties, there have been
fewer specific recommendations regarding enforcement measures
against visa overstays. The Commission on Immigration Reform
indicated that the solution lies in improved interior
enforcement, chiefly by preventing employment of illegal
aliens. (This topic is treated at greater length below.) The
State Department now processes a vast majority of visas through
an automated system that allows for quicker background checks,
and most newly-issued visas are machine-readable, an additional
security feature.10 Stricter standards for issuing visas
have been suggested. However, in many countries with a high
visa overstay rate, State Department consular officers already
deny a substantial percentage of visa applications.11
\10\ Hearing: Foreign Visitors Who Overstay, supra note 9, at 20
(Statement of Diane Dillard, Deputy Assistant Secretary for Visa
Services, Bureau of Consular Affairs, Department of State).
\11\ Id. at 32-33.
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Alien smuggling
Alien smuggling contributes greatly to the overall problem
of illegal immigration. Whether carried out by so-called
coyotes (smugglers) along the Southwest border, or through
sophisticated organized crime rings that smuggle aliens into
the United States by land, sea, and air, alien smuggling both
adds to the overall numbers of illegal aliens in the United
States and increases the financial and other incentives for
such trafficking to continue. Alien smuggling is often linked
to other crimes, such as drug smuggling and trafficking,
prostitution, racketeering, and severe labor law violations.
Due to the inhumane living and working conditions they face,
many smuggled aliens are victims, more than beneficiaries, of
this criminal activity.12
\12\ See generally, ``Alien Smuggling: Hearing Before the Subcomm.
on International Law, Immigration, and Refugees of the House Comm. on
the Judiciary,'' 103rd Cong., 1st Sess. (June 30, 1993).
---------------------------------------------------------------------------
Smuggling by boat is perhaps the most visible recent
manifestation of alien smuggling carried out by organized crime
syndicates. The arrival of the Golden Venture in New York City
in June 1993 brought this problem to national attention: the
vessel foundered on a sand bar, and hundreds of Chinese
nationals struggled to reach the shore and escape, several of
them drowning in the process. The remainder were apprehended
and detained for exclusion proceedings, in which most claimed
political asylum. Due to procedural delays inherent in the
immigration hearing process, and the difficulty of arranging
return travel to the People's Republic of China, most of these
aliens remained in the United States more than 2 years after
their arrival.
Other smuggling boats have landed or been apprehended in
United States waters, while still others have been interdicted
in international waters. However, due to greater enforcement
efforts, the organized smuggling by sea from Asia has decreased
somewhat since the arrival of the Golden Venture. (Illegal
immigration by sea has long been prevalent from countries in
the Caribbean, and this continues to be the case.)
Notwithstanding the public visibility of alien smuggling by
boat, the vast majority of smuggled aliens arrive by more
conventional means. Some travel directly to the United States,
using fraudulent passports and visas, and attempt entry at
international airports. Many such aliens have presented
passports and visas prior to embarking overseas, but destroy
the documents en route or surrender them to confederates.
Probably the greatest number travel through more circuitous
routes, travelling to other countries in the Western Hemisphere
and then arranging onward travel to the United States either by
air or through surreptitious crossing of the land border.
Whether they arrive by boat, directly by air, or through
more complex routes, smuggled aliens (often with the assistance
of smugglers) abuse immigration procedures to extend their stay
in the United States. Thousands of smuggled aliens arrive in
the United States each year with no valid entry documents and
declare asylum immediately upon arrival. Due to lack of
detention space and overcrowded immigration court dockets, many
have been released into the general population. Not
surprisingly, a majority of such aliens do not return for their
hearings. In recent years, however, the number of aliens
arriving at airports with no valid documents has decreased in
districts, particularly in New York and Los Angeles, where
detention capacity has increased and most mala fide aliens can
be detained. The threat of expedited exclusion, which has been
considered by Congress since 1993, may also have had a
deterrent effect.
Finally, many aliens successfully smuggled into the United
States have filed asylum claims as a means not only to extend
their stay, but, under regulations in effect until January
1995, to obtain work authorization. Due to the huge backlog in
asylum cases, and the inability of the INS to detain failed
asylum applicants who are deportable from the United States,
these aliens could reasonably expect that the filing of an
asylum application would allow them to remain indefinitely in
the United States. Under regulations effective in January 1995,
asylum applicants no longer are entitled to receive work
authorization. This has led to a substantial reduction in
filing of new asylum applications. (The new asylum regulations
are discussed below in more detail.)
II. Inspection, Apprehension, and Removal of Criminal and Illegal
Aliens
A. Populations of Criminal and Illegal Aliens
Criminal aliens
The number of criminal aliens incarcerated in Federal and
State prisons has grown dramatically in recent years, and is
now estimated as 100,000.13 The ``foreign-born'' 14
population in institutions operated by the Bureau of Prisons
(BOP) is 27,938, or 29 percent of all inmates (95,997). An
estimated 75 percent are subject to deportation.15
Compared to FY 1980, this is an increase from approximately
1,000, or less than 4 percent of all BOP inmates (27,825).
According to the BOP, the increase in the Federal alien
prisoner population is due largely to drug convictions; 75
percent of alien inmates are incarcerated for such offenses,
compared to 61 percent of all Federal inmates. Foreign-born
prisoners serve an average of 7.7 years. More than 85 percent
are from Mexico, Central America, South America, and the
Caribbean. The leading individual countries of origin are, in
order, Mexico, Colombia, Cuba, the Dominican Republic, Jamaica,
and Nigeria.
\13\ See ``Removal of Criminal and Illegal Aliens: Hearing Before
the Subcomm. on Immigration and Claims of the House Comm. on the
Judiciary,'' 104th Cong., 1st Sess. 4 (Statement of T. Alexander
Aleinikoff, General Counsel, Immigration and Naturalization Service)
(Hearing: Criminal and Illegal Aliens).
\14\ ``Foreign-born'' prisoners may include naturalized citizens
and certainly includes both legal permanent residents and people who
are in violation of their immigration status (including visa overstays)
or who entered the U.S. without permission. See ``Criminal Aliens:
Hearing Before the Subcomm. on Immigration, Refugees, and International
Law of the House Comm. on the Judiciary,'' February 23, 1994, at 188-
189 (Testimony of INS Deputy Commissioner Chris Sale). The Director of
the BOP has testified that ``[a]s of January 29, 1994, our inmate data
base reflects that there were 22,326 inmates in BOP custody who were
non-United States citizens (24.8 percent of the population). Id. at
166-167 (Statement of Kathleen M. Hawk). The BOP confirmed to the
Committee by telephone in November 1995 that the non-citizen population
remains at approximately 24 percent.
\15\ Id.; ``Management Practices of the Immigration and
Naturalization Service: Hearing Before the Subcomm. on Immigration and
Claims of the House Comm. on the Judiciary,'' 104th Cong., 1st Sess. 41
(February 8, 1995) (Hearing: Management Practices).
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The INS reports that there are an estimated 69,926 foreign-
born inmates in State prisons, and that 80 percent of these, or
55,640, are deportable.16 (The remainder are not
deportable because they are either naturalized citizens or
lawful permanent residents with protection from deportation.)
More than 81 percent (56,391) of the overall foreign-born state
prison population are in seven high immigration states:
California, Texas, Florida, New York, Illinois, New Jersey, and
Arizona.17 The INS believes that the number of criminal
aliens in Federal or State prisons who are subject to final
orders of deportation is small. The INS and the Executive
Office for Immigration Review (EOIR) complete deportation
proceedings against incarcerated criminal aliens through the
Institutional Hearing Program (IHP); most IHP proceedings are
completed close to the alien's scheduled release from prison.
\16\ Hearing: Criminal and Illegal Aliens, supra note 13, at 8
(Statement of T. Alexander Aleinikoff).
\17\ Id.
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Illegal aliens
The overall population of illegal aliens in the United
States is now estimated at 4,000,000 or more, with an annual
increase of 300,000 to 400,000. Only a fraction face
immigration enforcement proceedings. In FY 1995, deportation
proceedings resulted in orders of deportation against 82,915
aliens. An additional 22,815 aliens were ordered deported by
immigration judges after being found excludable from the U.S.
Finally, 19,040 aliens were granted voluntary departure after
being found deportable. These deportation and exclusion figures
represent substantial increases from the same figures for FY
1994, when 67,352 were ordered deported, 16,730 were found
excludable, and 13,416 were granted voluntary departure. The
principal reason is additional resources that have permitted
the hiring of new immigration judges and INS trial counsel. The
direct referral of unsuccessful asylum applicants to
deportation proceedings under the new asylum regulations will
lead to further increases in the number of deportation
proceedings.
In FY 1995, a total of 17,464 aliens filed appeals to the
Board of Immigration Appeals; the BIA affirms the vast majority
of deportation and exclusion orders. A smaller number--
approximately 1200 in recent years--appeal their cases to the
Federal courts.
The number of aliens ordered deported, moreover, greatly
exceeds the number who actually are removed from the U.S. In
1995, the INS removed 49,311 illegal aliens, 41,451 of which
had received deportation hearings, and 7,860 of which had been
processed through exclusion hearings. Approximately 32,000
(29,255 from deportation cases, and 2,738 from exclusion cases)
of these aliens were criminals. Thus, an important subset of
the annual growth in the number of illegal aliens--as many as
50,000 or more--consists of those who have been ordered
deported, but are not actually removed.
A critical question, for which there is no precise answer,
is how many of the aliens ordered deported but not removed are
criminals. The INS claims that this figure is very low, because
criminal aliens who are in INS custody and have received final
orders of deportation are kept in custody and deported.
However, the INS admits that some convicted criminal aliens
with final orders of deportation are released. The INS explains
that these are generally lawful permanent residents who are
deemed unlikely to abscond. The INS also admits that some
criminal aliens are released from custody prior to having their
deportation proceedings completed. This is often done because
of a lack of detention space. These aliens are generally
released on bond; however, some of them do not appear for their
deportation hearings and thus disappear into the general
population of illegal aliens.18
\18\ See generally Hearing: Criminal and Illegal Aliens, supra note
13 at 45-48; Hearing: Management Practices, supra note 15, at 49-50.
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Summary
The number of aliens incarcerated in Federal and State
prisons has risen dramatically in the past 15 years to close to
100,000. Approximately 45,000 criminal aliens are placed in
deportation proceedings each year, and in the last fiscal year,
29,000 were removed from the country. A certain number of
criminal aliens, including a small number with final orders of
deportation, are released from INS detention each year.
The overall population of illegal aliens is growing much
more rapidly (300,000-400,000 per year) than the number of
aliens that the INS seeks to remove through deportation
proceedings. More than 100,000 aliens are ordered deported or
excluded each year, but only about 50,000 (32,000 of which are
criminals) are actually removed from the United States. Thus,
in addition to the general illegal immigrant population, there
are growing numbers of aliens remaining in the United States
who are not only illegally present, but who have ignored final
orders of deportation to leave the U.S. (These figures do not
include aliens granted voluntary departure who do not, in fact,
depart from the U.S.)
B. Legal Issues Pertaining to Removal of Aliens
The vast majority of illegal aliens apprehended in the
United States are those who have crossed the Mexican border and
are allowed to return voluntarily without being placed in
formal deportation proceedings. Other aliens may be placed in
deportation proceedings under section 242 of the Immigration
and Nationality Act (INA), 8 U.S.C. 1252, through issuance of
an ``Order to Show Cause.'' (OSC) 19 An OSC requires an
alien to appear for hearing before an immigration judge within
the Executive Office for Immigration Review.
\19\ See INA Sec. 242B.
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An alien is entitled to be represented by counsel, at no
expense to the Government, and to examine evidence and cross-
examine witnesses at the deportation proceeding. At most
hearings, the issue of deportability is conceded: the alien
essentially admits that he or she is here illegally, but seeks
relief from deportation under one of the provisions of the INA.
The following are the most common forms of relief:
Voluntary departure
Under section 244(e) of the INA, a deportable alien may be
granted the option to voluntarily depart the United States, in
lieu of deportation. This option is attractive because it
allows the alien to leave without bearing the consequences of
having been deported, which include restrictions on subsequent
legal entries to the United States. An alien may be granted
voluntary departure if the alien has been a person of good
moral character for the previous five years. The grant of
voluntary departure gives the alien a specific amount of time
to leave the U.S., after which the alien becomes subject
automatically to an order of deportation.
Asylum
The alien may state a ``defensive'' claim for asylum (as
opposed to an ``affirmative'' claim presented in the first
instance to an INS asylum officer). The immigration judge rules
on the asylum claim in accordance with section 208 of the INA,
which permits the granting of asylum to any alien present in
the U.S. who meets the definition of a ``refugee'' under
section 101(a)(42) of the INA.20
\20\ An asylum claim also is considered a claim for withholding of
deportation under section 243(h) of the INA; but very few aliens are
granted withholding of deportation because if they are eligible for
that form of relief, they are probably eligible for the more permanent
relief of asylum. Withholding of deportation, which conveys no right to
remain in the United States permanently, must be granted when the
immigration judge finds that the alien's life or freedom would be
threatened on account of race, religion, nationality, membership in a
particular social group, or political opinion. (An asylee, by contrast,
need only show a ``well-founded fear'' of persecution on account of one
of these five grounds.)
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Under new INS regulations effective in January 1995,21
failed applicants in the ``affirmative'' asylum system will be
directly referred to an immigration judge for deportation
hearing and be able to renew their asylum claim in that
proceeding. This is expected to ensure that failed asylum
seekers remain under INS docket control and are ordered to
leave the country.
\21\ 59 Fed. Reg. 62284 (Dec. 5, 1994).
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Aggravated felons are barred from seeking asylum and are
ineligible for withholding of deportation.
Suspension of deportation
Under section 244 of the INA, aliens who have been present
in the United States for seven years or longer may qualify for
suspension of deportation if deportation would result in
extreme hardship to the alien, or to a family member who is a
citizen or a lawful permanent resident. Aliens convicted of
crimes (but not aggravated felons) are eligible for suspension
of deportation only if they have shown 10 years of good moral
character since the conviction and can show extreme and unusual
hardship. A person granted suspension of deportation is
permitted to become a lawful permanent resident of the United
States.
Aggravated felons are ineligible for suspension of
deportation.
``Section 212(c)'' relief
Section 212(c) of the INA provides that a lawful permanent
resident returning to an ``unrelinquished domicile'' in the
United States of at least seven years standing may be admitted
to the United States even if he or she is excludable for having
committed a crime. This provision has been interpreted to apply
to deportation proceedings as well, on the ground that it is
unconstitutional to limit the relief to a lawful permanent
resident who has departed the U.S.22 In these cases, the
immigration judge decides whether the lawful permanent resident
has established sufficient ``equities'' (including
rehabilitation and non-recidivism) to outweigh the crime
committed. A person granted this relief retains lawful
permanent resident status.
\22\ Francis v. INS, 532 F.2d 268 (2d Cir. 1976); Matter of Silva,
16 I&N Dec. 26 (BIA 1976).
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Aggravated felons are ineligible for this form of relief if
they have been convicted of crimes for which they have served,
in the aggregate, five years in prison.
Each of these forms of relief may be exploited by illegal
aliens to extend their stay in the United States. Voluntary
departure is subject to abuse because there is very little
assurance that aliens actually leave the United States, and
very little incentive for them to do so. In addition, the
Government often gets nothing in return for granting this form
of relief. Voluntary departure could be used to ``settle''
deportation cases expeditiously and ensure that people actually
leave the United States, but this is not frequently done under
the current system.
Asylum is often claimed by persons who have not suffered
persecution, but who know that delays in adjudication
(particularly in the affirmative asylum system) will allow them
to remain in the United States indefinitely, meanwhile accruing
time so that they will be eligible for suspension of
deportation if they are ever placed in deportation proceedings.
Suspension of deportation is often abused by aliens seeking
to delay proceedings until 7 years have accrued. This includes
aliens who failed to appear for their deportation proceedings
and were ordered deported in absentia, and then seek to re-open
proceedings once the requisite time has passed. Such tactics
are possible because some Federal courts permit aliens to
continue to accrue time toward the seven year threshold even
after they have been placed in deportation proceedings. Similar
delay strategies are adopted by aliens in section 212(c) cases,
where persons who have been in the United States for a number
of years, but have only been lawful permanent residents for a
short period of time, seek and obtain this form of relief.
C. Procedural Issues Pertaining to Removal of Illegal Aliens
Illegal aliens also may frustrate removal through taking
advantage of certain procedural loopholes in the current
removal process.
First, aliens may request and obtain multiple continuances,
in order to change the venue of their hearing, obtain an
attorney, or prepare an application for relief. Due to the
crowded dockets in the immigration courts, delays can stretch
out over weeks and months.
Second, many aliens simply fail to appear for their
deportation hearing. A 1989 study by the General Accounting
Office estimated that 27 percent of deportation proceedings are
closed because aliens fail to appear for their hearings. The
``no-show'' rate can exceed 50 percent in venues such as New
York, Los Angeles, and Miami. Bonds apparently do not have a
strong deterrent effect against no-shows.
Third, lapses (perceived or genuine) in the procedures for
notifying aliens of deportation proceedings lead some
immigration judges to decline to exercise their authority to
order an alien deported in absentia. These problems are
exacerbated by the fact that aliens may request a change of
venue of their proceeding. Often, an alien who has changed
venue will not inform the INS of a changed address (or of
subsequent address changes) despite the legal obligation to do
so.
Fourth, there are few consequences (other than forfeiture
of bond) for aliens who fail to appear for their hearings.
Failure to appear for earlier proceedings is rarely if ever
cited as an example of misconduct in future hearings if the
alien is applying for relief such as suspension of deportation.
Furthermore, aliens expect that the INS is unlikely to mount
any serious effort to apprehend them if they fail to appear.
Fifth, although only a small percentage of aliens appeal
their deportation orders to the Board of Immigration Appeals or
to the Federal courts, those who do can count on significant
delays in the disposition of their appeal.
Sixth, illegal aliens apprehended at worksites have, as a
result of being placed in deportation proceedings, acquired the
right to obtain work authorization pending the completion of
their hearings. This leads to the anomalous situation in which
an alien who was illegally working for an employer one week may
be legally re-hired the following week after being apprehended
by INS. Cases like this should be rare in the future, however,
since the INS in January 1995 repealed the regulatory provision
that granted work authorization to all aliens in deportation
proceedings.23 Aliens seeking certain forms of relief from
deportation (though not asylum) continue to be eligible for
work authorization.
\23\ 59 Fed. Reg. 62284 (Dec. 5, 1994).
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D. Detention Issues Pertaining to Removal of Criminal and Illegal
Aliens
A chief reason why many deportable aliens are not removed
from the United States is the inability of the INS to detain
such aliens through the course of their deportation
proceedings. The INS plans to increase its detention space to
about 8,500 beds in FY 1996, an increase of close to 50
percent.24 This enables the INS to detain approximately
100,000 aliens per year, with an average stay of 28
days.25 Detained cases are given priority in the
immigration system, both by immigration judges and the BIA.
However, relatively few deportable aliens, outside of
criminals, are detained at all. In order to manage its limited
resources, the INS has adopted the following detention
priorities:
\24\ Hearing: Removal of Criminal and Illegal Aliens, supra note
13, at 35.
\25\ The INS reported to the Committee in December 1995 that
approximately 83,400 aliens were detained in 6,418 funded detention
beds in FY 1995, with an average stay of 28.3 days. Increasing the
available beds to 8,500 actually will enable the detention of more than
100,000 aliens, based on the same average length of stay.
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1. Aliens convicted of crimes or identified as alien
smugglers;
2. Excludable aliens, with priority to those with
criminal or terrorist histories or those attempting to
enter the United States with fraudulent documents;
3. Deportable aliens who have committed fraud against
the INS, such as those who have entered with fraudulent
visas;
4. Deportable aliens who have failed to appear for
their hearings or who have been previously ordered
deported;
5. Deportable aliens apprehended while trying to
enter illegally;
6. Other deportable aliens, including those working
illegally;
These priorities lead to disparities of treatment among
aliens who might be considered as having committed similar
immigration violations. For example, an alien who is caught at
a port of entry with a fraudulent document is more likely to be
detained than an alien who has entered the United States on a
nonimmigrant visa, overstayed, and been apprehended while
working illegally. A criminal alien is likely to be detained
for at least some period of time; an alien who has actually
been ordered deported is unlikely to be detained at all. In
fact, at the conclusion of a deportation proceeding, it is
exceedingly rare that an alien is taken into custody after
being ordered deported, unless the alien is already in INS
detention.
Another issue related to the release of deportable aliens
is the use of bonds. The INA provides that bonds can be
required for those released pending their hearings. Bond
amounts in immigration cases are often ``absolute''--bonding
companies are reluctant to underwrite the high risk of aliens
failing to appear, and thus, aliens must put up the full amount
of the bond. In addition, the INS is sometimes reluctant to set
bonds too high because if the alien is not able to pay, the
alien cannot be released, and a needed bed space is lost. In
essence, in deciding to release a deportable alien, the INS is
making a decision that the alien cannot be detained given its
limited resources. A bond requirement under such circumstances
is an empty threat. In addition, an alien may contest the
amount of bond before an immigration judge.\26\
\26\ The procedures for setting and redetermining the amounts of
bonds is one of the most complex procedural aspects of the deportation
and removal process.
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E. Recent Strategies to Expedite Removal of Criminal Aliens
The Institutional Hearing Program
The Institutional Hearing Program (IHP) is a joint effort
between the INS, the Executive Office for Immigration Review
(EOIR), and State and Federal correctional officials to ensure
that alien inmates receive orders of deportation prior to the
end of their criminal sentences. The goal is to conclude
exclusion and deportation hearings against criminal aliens
before they complete their prison terms, making them amenable
to deportation upon release.\27\ The hearings are similar in
procedure to other deportation hearings.
\27\ Hearing: Removal of Criminal and Illegal Aliens, supra note
13, at 183 (Statement of Gerald S. Hurwitz, Counsel to the Director,
Executive Office for Immigration Review).
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The program began in 1986 after the passage of the
Immigration Reform and Control Act. It has since expanded so
that hearings can be held in a number of Federal facilities,
and in every State, D.C., and Puerto Rico. The IHP expedites
hearings in Federal prisons by centralizing the alien inmate
populations in six facilities. In the States, IHP hearings have
been expedited through similar patterns of centralizing inmates
at particular facilities.
In FY 1995, a total of 9,557 criminal aliens were removed
from the U.S. based on completion of IHP proceedings in
federal, state, and county facilities. A larger number were
interviewed and processed for a final removal order. In FY
1995, the INS and EOIR have moved to expand the IHP in 5 states
with the largest criminal alien populations: California,
Florida, Illinois, New York, and Texas. The expansion includes
the permanent assignment of immigration judges and INS trial
attorneys to IHP hearing sites. In these 5 states in FY 1995,
approximately 24,000 foreign-born inmates were interviewed and
approximately 15,000 removal proceedings were commenced.
Expedited administrative deportation
Section 130004 of the Violent Crime Control and Law
Enforcement Act of 1994 (Pub. L. 103-322, Sept. 13, 1994)
amended section 242A of the INA to provide for expedited
deportation procedures for aliens convicted of aggravated
felonies who are not lawfully admitted for permanent residence
to the United States and are not eligible for any relief from
deportation. Under these procedures, an INS District Director
will be able to issue an order of deportation without the need
for a hearing before an immigration judge. The alien shall be
provided notice of the grounds for deportation and of his right
to contest the deportation, and shall have the opportunity to
inspect the evidence. The alien may not be deported for a
period of 30 days, in order to have time to contest the order
or seek judicial review. However, judicial review is limited to
whether the alien: (1) has been correctly identified; (2) has
been convicted of an aggravated felony; and (3) has been
afforded the limited procedural rights under this new
provision.\28\
\28\ Final regulations to implement the administrative deportation
process were issued in August 1995. 60 Fed. Reg. 43954 (Aug. 24, 1995).
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Judicial deportation
Section 224 of the Immigration and Nationality Technical
Corrections Act of 1994 (enacted October 25, 1994) amended
section 242A of the INA to provide that Federal judges may, at
the time of sentencing of a criminal alien, order the alien to
be deported. This obviates the need for a separate deportation
proceeding. A United States Attorney must file a notice upon
the defendant and the INS stating his or her intention to seek
judicial deportation; the INS must concur with the United
States Attorney's intention to seek an order of deportation.
The alien must be provided notice of the grounds for
deportation and the opportunity to examine the evidence and
rebut the charges.
F. Alien Terrorists
The removal of alien terrorists from the U.S., and the
prevention of alien terrorists from entering the U.S. in the
first place, present among the most intractable problems of
immigration enforcement. The stakes in such cases are
compelling: protecting the very lives and safety of U.S.
residents, and preserving the national security. Yet, alien
terrorists, while deportable under section 241(a)(4)(D) of the
INA, are able to exploit many of the substantive and procedural
provisions available to all deportable aliens in order to delay
their removal from the U.S. In addition, alien terrorists,
including representatives and members of terrorist
organizations, often are able to enter the U.S. under a
legitimate guise, despite the fact that their entry is inimical
to the national interests of the U.S. In several noteworthy
cases, the Department of Justice has consumed years of time and
hundreds of thousands (if not millions) of dollars seeking to
secure the removal of such aliens from the U.S.
Starting in the first Administration of President Reagan,
the Department of Justice has sought reform of immigration law
and procedures to better enable this country to protect itself
against the threat of alien terrorists. The chief target of
these reforms are the statutory and administrative protections
given to such aliens, many of which are not required by the due
process clause of the Fifth or Fourteenth Amendment or any
other provision of law, that enable alien terrorists to delay
their removal from the U.S.
The need for special procedures to adjudicate deportation
charges against alien terrorists is manifest. Terrorist
organizations have developed sophisticated international
networks that allow their members great freedom of movement and
opportunity to strike, including within the United States.
Several terrorist groups have established footholds within
immigrant communities in the U.S.
The nature of these groups tend to shield the participants
from effective counterterrorism efforts--including the most
basic measure of removing them from our soil. The U.S. relies
heavily upon close and continued cooperation of friendly
nations who provide information on the identity of such
terrorists. Such information will only be forthcoming if its
sources continue to be protected. Thus, it is essential to the
national security of the U.S. that procedures be established to
permit the use of classified information in appropriate cases
to establish the deportability of an alien terrorist.
Such procedures also must be crafted to meet constitutional
requirements. The government's efforts to safeguard lives and
property and to protect the national security may be contested
on the grounds that they conflict with the procedural rights of
aliens. The interests of the government must therefore be
balanced against the legitimate rights of those privileged to
be present within the United States.\29\
\29\ Fiallo v. Levi, 406 F. Supp. 162 (S.D.N.Y.), aff'd, 430 U.S.
787 (1975); Jean v. Nelson, 472 U.S. 846, aff'g, 727 F.2d 957 (11th
Cir. 1984); Kleindienst v. Mandel, 408 U.S. 753 (1972) (alien's
presence in U.S. is privilege extended by Congress and not fundamental
right.) See also Alvarez v. INS, 539 F.2d 1220 (9th Cir.), cert.
denied, 430 U.S. 918 (1976) (applying rational basis test to equal
protection claim for impermissible classification of aliens).
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III. Employer Sanctions and Verification
The availability of jobs in the U.S. economy is a primary
magnet for illegal immigration. The employment of illegal
aliens, in turn, causes deleterious effects for U.S. workers.
First, illegal immigrants by and large are attracted to
America by the lure of jobs. As Vernon M. Briggs, Jr.,
professor of labor economics at Cornell University, stated in
testimony before the Subcommittee on Immigration and Claims on
April 5, 1995, ``It has long been conceded that the driving
force behind illegal immigration is access to the U.S. labor
market.'' \30\ The U.S. Commission on Immigration Reform
stated:
\30\ ``Impact of Illegal Immigration on Public Benefit Programs and
the American Labor Force: Hearing Before the Subcomm. on Immigration
and Claims of the House Comm. on the Judiciary,'' 104th Cong., 1st
Sess. (1995) (Statement of Vernon M. Briggs, Jr.).
Employment opportunity is commonly viewed as the
principal magnet which draws illegal aliens to the
United States. Since the beginning of U.S. history,
foreigners have come to the United States in search of
a better life. Whatever initially motivated them to
come here, they often ended up seeking and finding
employment. For years, U.S. policy tacitly accepted
illegal immigration, as it was viewed by some to be in
the interests of certain employers and the American
public to do so.\31\
\31\ 1994 Commission Report at 88 (1994).
This ``tacit acceptance'' of illegal immigration was reflected
in the fact that, until the last decade, no law prohibited the
employment of illegal aliens. The Select Commission on
Immigration and Refugee Policy (1981) stated that ``[a]s long
as the possibility of employment exists, men and women seeking
economic opportunities will continue to take great risks to
come to the United States, and curbing illegal immigration will
be extremely difficult.'' \32\ The Select Commission concluded
that economic deterrents--specifically, a law prohibiting the
hiring of undocumented or illegal aliens--were necessary to
curb illegal immigration.
\32\ 1981 Select Commission Report, supra note 1, at 59.
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Second, employment of illegal aliens is having a
detrimental effect on low skilled American workers. Professor
Briggs testified further that:
Every study of illegal immigration of which I am
aware has concluded that it is the low skilled sector
of the U.S. labor force that bears the brunt of the
economic burden. For illegal immigrants are
overwhelmingly found in the secondary labor market of
the U.S. economy. This segment of the labor market is
characterized by jobs that require little in the way of
skill to do them and the workers have little in the way
of human capital to offer. The concentration of
illegals in the secondary labor market occurs because
most of the illegal immigrants themselves are
unskilled, poorly educated, and non-English speaking
which restricts the range of jobs . . . they can seek.
. . . Although occupational definitions vary, it can be
crudely estimated that about one quarter to one-third
of the U.S. labor force are employed in jobs that are
predominately concentrated in the secondary labor
market. This high percentage certainly belies the claim
that U.S. citizens and resident aliens will not work in
these low skilled occupations.\33\
\33\ See Briggs testimony, supra note 30.
Dean Frank Morris of Morgan State University concluded at the
same hearing that ``it is time that the labor market effects,
especially the labor market effects of illegal immigration on
African Americans and other low income workers be addressed as
a top priority.'' \34\ More recently, a paper from the Bureau
of Labor Statistics reported that immigration accounts for as
much as 50 percent of the decline in real wages of high school
dropouts, and for approximately 25 percent of the increase in
the wage gap between low- and high-skilled workers.\35\
\34\ ``Impact of Illegal Immigration on Public Benefit Programs and
the American Labor Force: Hearing Before the Subcomm. on Immigration
and Claims of the House Comm. on the Judiciary,'' 104th Cong., 1st
Sess. (1995) (Statement of Frank Morris).
\35\ David A. Jaeger, ``Skill Differences and the Effect of
Immigrants on the Wages of Natives,'' U.S. Dep't of Labor, Bureau of
Labor Statistics, Office of Employment Research and Program
Development, Working Paper 273 (Dec. 1995).
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The Immigration Reform and Control Act
Laws against the employment of illegal aliens (``employer
sanctions'') were considered by Congress as early as the 1952
Immigration and Nationality Act. The endorsement by the Select
Commission in 1981 provided a strong impetus for the passage of
such measures, and employer sanctions became a part of the
Simpson-Mazzoli immigration reform bill, eventually enacted as
the Immigration Reform and Control Act of 1986 (IRCA).
IRCA's employer sanctions and verification provisions
prohibit employers from knowingly hiring aliens who are not
authorized to work in the United States.36 IRCA also
requires that employers verify the employment eligibility and
identity of all new employees by examining documents provided
by new employees, and by completing the Employment Eligibility
Verification Form (INS Form I-9). IRCA also prohibited
discrimination in employment based on national origin or
citizenship status, except with respect to persons not
authorized to work in the United States.37 Enforcement of
the IRCA provisions, however, has been hampered by rampant use
of fraudulent documents, confusion on the part of employers,
and continued access by illegal aliens to jobs and public
benefits.38
\36\ Title I of Pub.L. 99-603, Nov. 6, 1986, as amended, enacting
section 274A of the Immigration and Nationality Act (INA). The
penalties include fines from $100 to $1000 per individual for
``paperwork'' violations (failure to properly complete the Form I-9);
fines of $250 to $10,000 for knowingly hiring, continuing to employ,
recruiting, or referring an unauthorized alien to work; and criminal
penalties for engaging in a pattern or practice of violating the
employer sanctions provisions.
Generally, those unauthorized to work are illegal aliens and
holders of certain nonimmigrant visas that do not permit employment.
However, one may be a ``legal alien'' (for example someone who is
present legally in the United States pursuant to a type of nonimmigrant
visa that does not authorize employment) but not be authorized to work.
Similarly, one can be an illegal alien, but be authorized to work.
(This latter category would include certain asylum applicants and
aliens awaiting completion of deportation proceedings.) Lawful
permanent residents are always authorized to work.
\37\ Section 102 of IRCA, adding section 274B of the INA. Section
274B provides for creation within the Department of Justice of a
Special Counsel for Immigration-Related Unfair Employment Practices
(``Special Counsel'' or ``OSC''). The Special Counsel employs
approximately 14 attorneys and 3 investigators to investigate charges
of discrimination received from the public. The Immigration Act of 1990
increased the fines that may be imposed for discrimination violations
to levels equivalent to those imposed for employer sanctions
violations.
\38\ See generally ``Verification of Eligibility for Employment and
Benefits: Hearing Before the Subcomm. on Immigration and Claims of the
House Comm. on the Judiciary,'' 104th Cong., 1st Sess. (March 30,
1995).
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Work eligibility documents and document fraud
The 29 documents that may be used to establish
identification and eligibility to work are divided by statute
and regulation into three categories:
So-called ``A List'' documents establish both work
eligibility and identification. An employee producing
one of these 12 documents does not need to produce any
other document.39
\39\ These include a U.S passport, certificate of citizenship,
certificate of naturalization, Alien Registration Receipt Card (I-151)
or Resident Alien Card (I-551--``Green Card''), unexpired foreign
passport stamped by the INS to indicate employment authorization,
Temporary Resident Card (INS Form 688), Employment Authorization Card
(Form I-688A), reentry permit (Form I-327), Refugee Travel document
(Form I-571), employment authorization document issued by INS bearing a
photograph. See 8 C.F.R. 274a.2(b)(1)(v)(A).
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``B List'' documents establish identity only. The
most common document produced from this list is the
driver's license.40
\40\ There are 10 such documents, including a state driver's
license or identification card with a photograph or identifying
information, a school ID card with photograph, a voter registration
card, and a U.S. military or dependent's ID card. See 8 CFR
274a.2(b)(v)(B).
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``C List'' documents establish employment eligibility
only. The most common documents produced from this list
are birth certificates and the social security
card.41
\41\ There are 7 such documents, including the social security
card, a certificate of birth abroad issued by the Department of State,
an original or certified copy of a birth certificate, or an employment
authorization card issued by the INS, but not included in List A. See 8
CFR 274a.2(b)(v)(C).
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The employer's responsibility is limited to determining
whether or not the documents ``appear'' to be genuine; they are
allowed a good faith defense and are not liable for verifying
the validity of the documents. However, employers are the
initial enforcers of the employment eligibility restrictions.
The number of permissible documents has long been subject
to criticism. The INS published a proposed regulation in 1993
(with a supplement published on June 22, 1995) to reduce the
number of documents from 29 to 16. This proposal, however, does
not reflect the consensus of opinion that documents should be
reduced even further, and that documents that are easily
counterfeited should be eliminated entirely.
The problem of document fraud is pervasive. Social security
cards, birth certificates, and the alien registration cards
(``green cards'') are the most commonly used employment
eligibility documents. They are also the ones most prone to
counterfeit, the incidence of which has increased sharply since
the passage of IRCA. Birth certificates, even if issued by
lawful authority, may be fraudulent in that they do not belong
to the person who has requested that one be issued. This
problem is exacerbated by the large number of authorities--
numbering in the thousands--that issue birth certificates.
Enforcement issues
A majority of employers comply with both the employment
restriction and verification requirements of IRCA.
Nevertheless, enforcement of employer sanctions has been beset
by difficulty from the start. Among the chief problems have
been:
The fact that workers may present any of a large
number of documents, some of which may be obscure or
unfamiliar, in order to establish the worker's
identification and eligibility to be employed;
A proliferation of fraudulent documents, particularly
birth certificates, social security cards, drivers'
licenses, and INS work authorization cards, that are
used to establish identity and eligibility to be
employed;
Employer confusion regarding the requirements for
verification of work eligibility;
Allegations that fear of liability for hiring
unauthorized workers has led some employers to
discriminate against job applicants who appear to be
foreign-born;
Tepid enforcement efforts by the INS on the hiring of
unauthorized workers and an overemphasis on paperwork
violations (failure to fully or correctly complete the
I-9 form).
Employers also report feeling trapped between the work
verification and anti-discrimination provisions of IRCA. ``As a
result of inconsistent and confused government regulations,
policies or pronouncements, compliance with one of these
precepts sometimes inevitably means violation of the other.''
42 As a result, some businesses take a less aggressive
posture in identifying fraudulent documents, and thus hire
(even if unknowingly) aliens not authorized to work.
\42\ Hearing before the Subcomm. on Immigration, Refugees, and
International Law of the House Comm. on the Judiciary, 103rd Cong., 2d
Sess. 83-84 (Oct. 3, 1994) (statement of Daryl Buffenstein, President-
Elect of the American Immigration Lawyers Association).
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iv. legal immigration
A. Sources of Current Immigration Policy
Legal immigration to the United States has steadily
increased from the end of the Second World War (during which
virtually no immigration took place) to the current decade, in
which an average of nearly 1,000,000 persons have legally
immigrated (or been granted permanent resident status) each
year. During that time, the composition of the immigration
population also has changed. Between 1941 and 1960, the top
five countries sending immigrants to the United States were
Germany, Canada, Cuba, the Philippines, and the United Kingdom.
From 1981 to 1993, the top five were Mexico, the Philippines,
China, Korea, and Vietnam.
These changes in immigration are due in large part to three
major legislative enactments.
The Immigration Act of 1965
The Immigration Act of 1965, Pub. L. 89-236, abolished the
national origins quota system established by the Immigration
Act of May 26, 1924. The 1924 law prohibited virtually all
immigration from Asian countries and imposed quotas on non-
Western Hemisphere countries. These measures were intended to
preserve the ethnic balance existing in the country at the time
of the 1890 census. As a result, Southern and Eastern
Europeans, who had comprised the majority of immigration during
the period 1901-1920, were largely excluded under the quota
system. Immigration from the Western Hemisphere, however, was
virtually unrestricted.
In place of the national origins quota system, the 1965 Act
established a system based on overall ceilings and preference
categories. There was an annual ceiling of 170,000 on Eastern
Hemisphere immigration with a 20,000 per country limit. Within
these restrictions, immigrant visas were distributed according
to a seven-category preference system placing priority, in
order, on family reunification, needed skills, and refugees.
The 1965 law also provided that Western Hemisphere immigration
would be limited by an annual ceiling of 120,000, without per-
country limits or a preference system. Congressional amendments
in 1976 extended the per-country limits and preference system
to the Western Hemisphere, and in 1978 established a single
worldwide immigrant ceiling of 270,000, exclusive of refugees.
The principal effects of the 1965 law and these amendments
were to make family unification the dominant principle of
United States immigration law, and to change the ethnic
composition of immigration. By the mid-1980s, nearly 75 percent
of all legal immigrant admissions were admitted as immediate or
extended family members. In addition, 85 percent of immigrants
now come from Asia, Latin America (including Mexico), Oceania,
and Africa; 15 percent came from Europe and Canada.
The Refugee Act of 1980
The next major change in immigration law was the Refugee
Act of 1980 (Pub. L. 96-212). The law removed refugee
admissions from the preference system and established a system
whereby the President, after ``appropriate consultations,''
establishes the number of refugees to be admitted in a given
year. The law also enacted section 208 of the INA, requiring
the Attorney General to establish a procedure for granting
asylum to persons present in the United States or at our
borders who meet the definition of refugee.
During the past 15 years, the number of refugees admitted
from overseas has increased. A record 354,000 refugees arrived
in the United States in 1980, which included approximately
150,000 Cuban marielitos and large numbers of Southeast Asian
refugees. A record 155,000 refugees adjusted to permanent
resident status in 1982. A yearly average of 110,000 refugees,
and an additional 11,000 asylees, adjusted to permanent
resident status in 1990 through 1994. The Administration has
projected that there will be 90,000 refugee admissions in FY
1996, with a gradual decrease to 50,000 per year later in the
decade.43
\43\ U.S. Commission on Immigration Reform, Legal Immigration:
Setting Priorities 136 (1995) (Hereinafter referred to as 1995
Commission Report).
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The number of asylum applications has increased more
dramatically, from approximately 30,000 in the early 1980s to
150,000 per year by the early 1990s. Most of these were
meritless applications filed by illegal aliens in order to
prolong their stay in the U.S. and to receive work
authorization. Thus, abuse of the asylum system has had a
profound effect on illegal immigration. On the other hand,
legitimate use of the asylum system has not dramatically
increased the amount of legal immigration: the number of
persons granted asylum each year has been 15,000-20,000 or
less. The asylum reform regulations effective in January 1995
were intended to discourage the filing of nonmeritorious asylum
applications by illegal immigrants and to expedite the removal
of applicants who are denied. The number of asylum applications
has significantly declined since these regulations went into
effect.
The Immigration Reform and Control Act of 1986
The Immigration Reform and Control Act of 1986 (IRCA)
included a program for legalization of long-term resident
illegal aliens that will affect the flow of legal immigration
for years to come. IRCA's legalization program included aliens
who had resided continuously in the United States in an
unlawful status since before January 1, 1982. In addition, the
Special Agricultural Workers program provided for the
legalization of certain agricultural workers (SAWs) present in
the United States during 1985 and 1986. Approximately 2.7
million persons received lawful permanent resident status
through the legalization program in 1989 through 1993: about
1.6 million as long-term illegal resident aliens and 1.1
million as SAWs. While these numbers do not represent new
admissions to the United States, the beneficiaries of
legalization gain the ability to petition for relatives under
the family preference system.
The Immigration Act of 1990
The Immigration Act of 1990 included the first
comprehensive reform of the legal immigration system since the
Immigration Act of 1965. Major changes included a separation of
family preference and employment-based preference categories,
an increase in total immigration under an overall pierceable
cap, an increase in employment-based immigration from 54,000 to
140,000, and a provision for the admission of ``diversity
immigrants'' from countries that have been underrepresented in
United States immigration since 1965.
Serious consideration of changes in the system established
in 1965 began with the report of the Select Commission in 1981.
Legislation was introduced in the Senate after the passage of
IRCA that would have lessened the dominance of family-based
immigration and provided more opportunity for ``traditional
immigrants''--those without family ties in the United States.
As a result of the 1990 Act, there is now a worldwide
annual level of at least 675,000 immigrants, not including
refugees and several other categories. Of this total, 480,000
are family-related immigrants, 140,000 are employment-based
immigrants, and 55,000 are diversity immigrants. In the family-
related category, there is no limit on the number of immediate
relatives (spouses, unmarried minor children, and parents) of
United States citizens who can be admitted in a given year. The
number of admissions for immediate relatives of citizens counts
against the total of 480,000 to a ``floor'' of 226,000; that
is, at least 226,000 immigrant visas are reserved for other
family preference categories, including unmarried (adult) sons
and daughters of citizens (allocation=23,400), spouses and
children of permanent resident aliens (114,200), married sons
and daughters of citizens (23,400), and brothers and sisters of
adult citizens (65,000).
The 1986 amnesty provisions and the increases in the 1990
act have resulted in high levels of admissions in recent years.
The highest admissions level, including amnestied aliens
adjusting to lawful status, occurred in 1991: 1,827,167. The
highest admissions figure not counting amnestied aliens
occurred in 1993: 880,014.
B. The Need for Legal Immigration Reform
Congress has the Constitutional task to set immigration
policy in the national interest. As a result of legislation
enacted in 1965, 1986, and 1990, the United States has
dramatically increased overall levels of legal immigration.
During the past 15 years, we have admitted or legalized almost
12 million immigrants: an average of 733,000 each year legal
immigrants were admitted or legalized from 1981-1990, and a
whopping 1.13 million per year from 1991-1994. These numbers
include the amnesty granted to 2.7 million illegal aliens under
the 1986 Immigration Reform and Control Act. There is no
comparable sustained period of immigration growth in American
history.
Such large increases in immigration create problems as well
as opportunities for the American society and economy. The
Commission on Immigration Reform noted that ``immigrants often
are a bright spot in today's all too often bleak urban
environment,'' and that in areas where they concentrate,
immigrants ``frequently establish new businesses and other
employment-generating activities that promote the renewal of
city neighborhoods and commercial districts.'' 44 On the
other hand, immigration has costs as well, many related to the
fact that such a preponderance of immigrants (close to 9
million since 1980) are admitted without reference to their
level of education or skills. The current cohort of immigrants
is far more likely to have less than a high-school education
than native-born Americans. This can have the effect of
flooding the labor market for unskilled work, as well as
creating pockets of impoverished immigrants who will be less
likely to assimilate into the broader American society.45
The rise of immigrant-based organized crime groups suggests
that screening of potential immigrants is not as rigorous as it
ought to be. These negative impacts are most keenly felt in the
handful of States in which a vast majority of immigrants choose
to live, 46 and, ironically, cause most direct harm to
recent immigrants.47 Legal immigration policy must strike
a proper balance so that these problems do not overwhelm the
opportunities that immigration brings to the nation, and result
in job loss and displacement for American workers.
\44\ 1995 Commission Report at 20.
\45\ 1995 Commission Report at 25.
\46\ Seventy percent of legal immigrants intend to live in the six
states of California (25.8 percent); New York (18.0); Texas (7.3);
Florida (6.9); New Jersey (5.5), and Illinois (5.3). 1995 Commission
Report at 15-16.
\47\ 1995 Commission Report at 27.
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There also are legitimate concerns that the Government's
and society's capacity for admitting, assimilating, and
naturalizing immigrants have been strained by current levels of
legal immigration. Again, these problems are heightened in
high-immigration States. Our education system, for example, is
burdened by the needs of immigrants who either are not
proficient in English or illiterate in their own language or
both. In Los Angeles county, education is provided in over 70
languages at a larger ``per student'' cost to the taxpayer.
While we should expect a great deal of diversity in
immigration, the U.S.'s capacity to absorb immigrants is not
unlimited.
Reform of family-based immigration
Family-based immigration is the dominant category of
immigration growth. Demand in these categories has grown
dramatically due to the beneficiaries of legalization under
IRCA obtaining permanent resident status, and in some cases
citizenship, thus allowing them to petition for relatives
abroad. In FY 1994, for example, 497,000 family-sponsored
immigrants were admitted, as opposed to 123,000 employment-
based immigrants. Many of these employment-based immigrants
were the spouses and children of the principal immigrants
admitted for employment purposes. In addition, a significant
portion of refugee admissions and asylum adjustments (121,000
in 1994) consist of the relatives of principal refugee
applicants. The primary beneficiaries of family-sponsored
immigration are the families of recently-arrived immigrants,
not of native-born U.S. citizens. This, combined with the share
of family-sponsored immigration, means that most immigrants are
admitted solely on the basis of their relationship to another
immigrant.
Supporters of family unification as an objective in
immigration policy state that this pattern of immigration, in
addition to serving the humanitarian interest in keeping
families intact, helps immigrants to establish networks and put
down roots that make them more productive members of society.
However, because current family unification policy also permits
the creation of migration ``chains''--immigrants petitioning
for their parents and brothers and sisters, who may in turn
petition for their children and other relatives--family
immigration has become a form of entitlement that may crowd out
other types of immigration that would be equally or more
beneficial to American society. In addition, ``chain
migration'' allows the demand for family immigration to grow
exponentially.
The availability of ``chain migration'' not only distorts
the selection criteria for legal immigrants, but may add
additional incentive for people to attempt illegal immigration
to the U.S. There is growing evidence that some families
overseas pool their resources to pay the smuggling fee for one
family member to illegally enter the U.S., in the hope that
this family member will eventually gain legal status, and be
able to petition for other family members.48
\48\ See, e.g., William Branigin, ``A Cottage Industry of
Counterfeit People and Papers,'' Wash. Post, Nov. 25, 1995, A1, A12.
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There are other compelling signs that this aspect of the
legal immigration system is broken and in need of repair. Since
1965, family unification has been a primary goal of our
immigration policy. Currently, however, there is a backlog of
1.1 million spouses and minor children of lawful permanent
residents waiting for admission or for legal status. This means
that many legal resident aliens are physically separated from
their husbands, wives, and children for up to four years, and
those applying today may wait up to 10 years. Even if the
spouses and minor children are present in the U.S., their
immigration status is uncertain.
The basic failure of the current system, therefore, is that
while it sets preferences, it fails to set priorities. For
example, with a finite number of immigrant admissions, numbers
allocated to brothers and sisters and other categories mean
fewer numbers are allocated to the spouses and minor children
of lawful permanent residents. The number of visas now used to
admit brothers and sisters and adult children should be used
instead to reduce the backlog for nuclear family members.
The preservation of the nuclear family, therefore, should
continue to be a cornerstone of U.S. immigration policy. The
same priority cannot be given, and should not be given, to the
admission of brothers and sisters and adult sons and daughters,
solely on the basis of their family relationship to an
immigrant. When an adult leaves his native land to emigrate to
America, he or she makes a decision to be separated from
brothers and sisters, parents, and adult children. We realize
that this is a difficult decision in many cases, but
ultimately, it is a decision that the immigrant has made.
Immigration policy cannot and should not attempt to soften
the blow by holding out the hope that these adult family
members will be eligible to immigrate to the U.S. Clear
evidence of this fact are the enormous backlogs that now exist
in virtually all extended family categories. As of January
1994, the State Department estimates the following number of
persons waiting for admission to the U.S.: (1) unmarried adult
sons and daughters of U.S. citizens: 63,499 (current law allows
23,400 annual admissions); (2) unmarried adult sons and
daughters of permanent resident aliens: 450,579 (36,266 annual
admissions); (3) married adult sons and daughters of U.S.
citizens: 257,110 (23,400 annual admissions); and (4) brothers
and sisters of U.S. citizens: 1,643,463 (65,000 annual
admissions). To clear out these backlogs, immigration law would
have to provide up to an additional 2.4 million visas: a
dramatic increase in legal immigration at a time when
stabilization of immigrant numbers is called for. To compound
the problem, these 2.4 million immigrants could petition for
admission of their relatives, thus raising demand on the legal
immigration system to an unprecedented level and creating new,
exponentially larger backlogs.
Excessive backlogs in these admission categories undermine
the credibility and integrity of U.S. immigration policy
because they hold out a promise of opportunity to immigrate
that cannot be met in the foreseeable future. For most, the
opportunity to immigrate to the U.S. as the adult relative of a
citizen or lawful permanent resident is theoretical at best: a
newly-arriving immigrant or newly-naturalized citizen can
expect to wait 10 years, or longer in many cases, from the time
an immigrant visa petition is filed for his or her relative to
the time a visa for that relative becomes available. Thus,
these categories often do not create an opportunity to
immigrate, but an opportunity to wait in line. Some do not wait
their turn, but instead immigrate illegally to the U.S., hoping
(and in many cases succeeding) to wait here until their visa
number becomes available. Thus, the unrealistic expectations
created by the failure to set firm priorities in the system of
legal immigration causes further incentive for illegal
immigration.
Finally, the permanent excessive demand on the immigration
system represented by these backlogs makes it difficult if not
impossible to alter course and give greater priority to
immigration categories that are more closely tied to the
national interest. We can sympathize with people who have been
waiting in line and may no longer be eligible for admission.
But immigration is a privilege, not a right, and not all those
eligible at one time for a visa can be guaranteed to receive
one. Otherwise, immigration policy would be forever ``locked
in'' to decisions and priorities of the past.
Reform of employment-based immigration
A reformed legal immigration system should make generous
provision for the admission of highly-skilled and educated
workers who will bring needed expertise to the American
economy. For the most part, business immigration serves
important economic and social objectives. It gives employers
access to the increasingly global labor market and enables
pursuit of international business opportunities, expansion in
international markets, and overall enhancement of
competitiveness. Business immigration can also expand job
opportunities for U.S. workers by admitting top-flight talent
which helps maintain U.S. leadership in developing
technologies.
At the same time, business immigration policies must
protect U.S. workers from displacement or adverse effects on
wages and working conditions. The labor certification process
is the primary means to meet this objective. However, it should
be recognized that a large influx of workers in and of itself
may have some negative economic impacts. The admission of less-
skilled workers, for example, may hurt the domestic labor force
by increasing competition for scarce jobs at the lower end of
the economic ladder.49 Thus, the current system ill-serves
the American economy by allowing for the admission of 10,000
unskilled workers per year. This is particularly true since
large numbers of unskilled workers are admitted through the
family-based and humanitarian categories each year.
\49\ One recent government study found that immigration accounted
for roughly half of the decline in real wages among workers with less
than a high school education. See David Jaeger, ``Skill Differences and
the Effect of Immigrants on the Wages of Natives,'' U.S. Department of
Labor, Bureau of Labor Statistics, Working Paper 273 (Dec. 1995).
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In addition, the business immigration categories should
more clearly define those immigrants who, for the sake of
protecting the American work force, can only be admitted after
their sponsoring employer completes the labor certification
process.50 Under current law, aliens with advanced degrees
or exceptional ability must have a job offer and are subject to
the labor certification process. However, these requirements
can be waived when admission of the alien is deemed by the INS
to be ``in the national interest.'' The problem is that the
statute fails to define what constitutes the national interest,
which has led to absurd results: among the aliens admitted on
the national interest waiver in recent years are a golf course
designer, a deer farmer, a children's musician, and numerous
corporate employees whose only claim to ``national interest''
is improving the profitability of their own companies. All of
these persons were presumably eligible for admission to the
U.S., but it appears doubtful that waiver of the labor
certification process was required by any national interest.
\50\ See INA Sec. 212(a)(5)(A)(i).
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Reform of refugee admissions
The current level of refugee admissions, which has exceeded
100,000 per year for the past decade, is set by the President
and reviewed by Congress through the consultation process
established in the Refugee Act of 1980. A prime difficulty with
this process is that Congress has virtually no influence in
setting the refugee admissions numbers or allocations for any
given fiscal year. The required consultations often take place
weeks, if not days, before the start of the fiscal year, thus
rendering moot the opportunity for meaningful input.
The Refugee Act of 1980 51 was intended to establish a
comprehensive yet flexible procedure for the admission and
resettlement of refugees in the United States.52 To this
end, Congress delegated authority for setting the number and
allocation of refugee admissions to the President.53 At
the same time, Congress retained for itself a broad
consultative role in the process.54
\51\ Pub. L. No. 96-212, 94 Stat. 102, in part adding INA
Sec. Sec. 101(a)(42), 207-209, 411-414, 8 U.S.C. Sec. Sec. 1101(a)(42),
1157-1159, 1521-1524.
\52\ See, e.g., H.R. Rep. No. 96-608, 96th Cong., 1st Sess. 1
(1979) [hereinafter House Report 96-608].
\53\ INA Sec. 207(a), (b), 8 U.S.C. Sec. Sec. 1157(a), (b).
\54\ Id.
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Under section 207(d) of the INA, the President must consult
with certain members of the House and Senate Judiciary
Committees prior to making any of the following determinations:
setting the number of refugee admissions for the upcoming
fiscal year; allocating refugee admissions within this overall
number; that there exists an unforeseen refugee emergency
situation justifying the admission of additional refugees over
the limit for the current fiscal year; and allocating emergency
refugee admissions.
In addition to these consultation provisions, section
207(d)(1) requires the President to report annually to the
Judiciary Committees on anticipated allocations and to provide
for periodic consultation between the President's
representatives and members of those committees on the possible
need for adjustments in the current allocation. Neither the
allocation provision nor the report and discussion provision
expressly confers authority to reallocate admissions or sets
forth the procedures to be followed in effectuating a
reallocation.
The Refugee Act of 1980 intended to provide Congress with a
meaningful role in the process of determining refugee
admissions. In the words of former Representative Elizabeth
Holtzman, then Chair of the House Subcommittee on Immigration,
Refugees and International Law, ``Importantly, for the first
time, the bill requires that Congress be consulted before
refugees are admitted, and spells out in detail the elements of
that consultation.'' 55 Additionally, the Report of the
House Committee on the Judiciary regarding the Refugee Act of
1980 stated the following:
\55\ 125 Cong. Rec. H11966, H1167 (daily ed. Dec. 13, 1979)
(statement of Rep. Holtzman).
The Committee has made every effort to assure that
Congress has a proper and substantial role in all
decisions on refugee admissions. In the past, the
Attorney General's consultation with this committee
regarding admissions has been merely a matter of
courtesy or custom. * * * The Committee cannot
overemphasize the importance it attaches to
consultation. The Congress is charged under the
Constitution with the responsibility for the regulation
of immigration, and this responsibility continues with
respect to refugee admissions.56
\56\ House Report 96-608 at 12-14 (1979).
In the past several years, the refugee consultation process
has devolved into a single meeting between the Executive Branch
and the House and Senate Judiciary Committees near the end of
the fiscal year--the very type of process which the 1980 Act
expressly rejected. As an example, the refugee consultation for
fiscal year 1996 occurred in the middle of September 1995--two
weeks prior to the beginning of fiscal year 1996. The failure
of the Administration to consult with Congress on the number
and allocation of refugee admissions until just prior to the
beginning of the fiscal year meant that the series of
discussions between the President and Congress called for in
section 207(d)(1) of the INA did not take place.
The current process of determining refugee admissions does
not provide Congress with a meaningful role in this process, as
intended in the Refugee Act of 1980. The number of refugee
admissions for a particular fiscal year should not be set
unilaterally by the President. As former Chairwoman Holtzman
stated: ``* * * there is no substitute for public scrutiny,
public disclosure, public debate on an issue of such importance
as the admission of refugees to the United States.'' 57
The only way to have an adequate public debate on the issue of
refugees is to give Congress a more meaningful role in
determining number and allocation of refugee admissions.
\57\ 125 Cong. Rec. H37203 (daily ed. Dec. 20, 1979).
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Some may argue that Congress exercises adequate control
over the numbers of refugees admitted through its power over
the appropriations process. However, it is virtually impossible
for Congress to reduce the number of refugees admitted by
failing to fund programs for persons often already in this
country or whom the President has already promised to admit. In
the past, attempts by Congress to exercise control over refugee
admissions through the appropriations process have only
resulted in shifting a majority of the costs for resettling
refugees to the State and local levels. Reducing federal
funding for refugee resettlement has had no effect on the
number of refugee admissions.
Congress also should re-assess the appropriate level of
refugee resettlement in the United States. The United Nations
High Commissioner for Refugees has estimated that the total
population of refugees requiring resettlement may be under
50,000 per year. Even if the U.S. took half or more of this
number, it would be much less than our current refugee
admissions, which have averaged over 100,000 in recent years.
In addition, the U.S. admits large numbers of persons,
particularly from the former Soviet Union, who would not be
considered ``refugees'' by the UNHCR. In fact, the vast
majority of refugees admitted to the U.S. in recent years have
been admitted under a program which establishes a threshold for
determining refugee status that is lower and thus significantly
more generous than that contained in the INA or in
international law.58 Without this program, U.S. refugee
admissions would be significantly below the 50,000 target
originally established in the Refugee Act of 1980. The U.S.
refugee programs in the former Soviet Union and Vietnam are
expected to phase out during the next few years, leading the
State Department to project that the Administration's refugee
target will be 50,000 by FY 1998. Thus, under the State
Department's plans, there would be no need for additional
legislation authorizing higher refugee admissions should the
provisions of this bill be enacted.
\58\ The so-called Lautenberg Amendment--named after its author,
Sen. Frank Lautenberg (D-N.J.)--allows certain residents of the former
Soviet Union and Southeast Asia to be deemed refugees by merely
asserting, not establishing, a fear of persecution. See Sec. Sec. 599D,
599E, Foreign Operations, Export Financing, and Related Programs
Appropriations Act, 1990 (Pub. L. 101-167, Nov. 21, 1989), as amended
by Sec. 598 of the Foreign Operations, Export Financing, and Related
Programs Appropriations Act, 1990, (Pub. L. 101-513, Nov. 5, 1990), the
Miscellaneous Technical Immigration and Naturalization Amendments of
1991, (Pub. L. 102-232, Dec. 12, 1991), Sec. 582 of the Foreign
Operations, Export Financing, and Related Programs Appropriations Act,
1993 (Pub. L. 102-391, Oct. 6, 1992), Sec. 905 of the FREEDOM Support
Act (Pub. L. 102-511, Oct. 24, 1992), Sec. 512 of the Foreign Relations
Authorization Act, Fiscal Years 1994 and 1995 (Pub. L. 103-236, April
30, 1994), and Sec. 219(bb) of the Immigration and Nationality
Technical Corrections Act of 1994 (Pub. L. 103-416, 108 Stat., Oct. 25,
1994)); 8 U.S.C. 1157 note. The standard applied to all other
applicants is whether the applicant has demonstrated a well-founded
fear of persecution. See INA Sec. 101(a)(42). See also Article I of the
Protocol Relating to the Status of Refugees, 19 UST 6223, TIAS 6577
(1968).
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Reform of asylum
The asylum system established in the 1980 Refugee Act has
provided protection to thousands of legitimate claimants, but
has been subject to abuse by tens of thousands more who filed
non-legitimate claims simply in order to extend their stay in
the U.S. and to receive work authorization. Recently, as many
as 140,000 ``affirmative'' asylum applications have been filed
per year with the INS. This is in addition to the thousands of
``defensive'' asylum applications filed by aliens in exclusion
and deportation proceedings. The INS has been able to resolve
only one-third of these new filings in recent years, meaning
that a huge backlog of claims, over 400,000, had developed by
the end of FY 1994.
The Administration has taken significant steps to resolve
these problems, principally through regulations effective in
January 1995. Under these new rules, asylum applicants no
longer will be eligible for work authorization unless they are
granted asylum or there are unusual delays in completing
adjudication of their claims. Asylum claims are scheduled for
interview within 45 days of the application. The asylum officer
will either grant the claim, or refer the case without decision
to an immigration judge. (The vast majority of asylum
applicants are not lawfully present in the U.S., and under the
administrative reforms, the final decision on referred cases
will be made by the immigration judge in the context of a
deportation proceeding.) The entire system is streamlined, with
the objective of completing proceedings before the immigration
judge within 180 days of the original application.
These reforms are a strong step in the right direction, and
have apparently resulted in a 50 percent or greater reduction
in the filing of new asylum claims. However, the regulations do
not address several significant issues. First, aliens remain
able to file an asylum application regardless of how long they
have resided in the United States, and many applications are
filed by aliens who have been here for years. International law
anticipates that aliens who have illegally entered a country in
order to flee persecution should present themselves ``without
delay'' to the authorities.59 This is the exception,
rather than the rule, under the U.S. asylum system.
\59\ Article 31 of the United Nations Convention Relating to the
Status of Refugees (1951) states in part:
The Contracting States shall not impose penalties, on
account of their illegal entry or presence, on refugees
who, coming directly from a territory where their life or
freedom was threatened * * * enter or are present in their
territory without authorization, provided they present
themselves without delay to the authorities and show good
cause for their illegal entry or presence.
Second, the U.S. system includes no meaningful provision
for the return or removal of aliens to countries (including
countries through which they have travelled prior to reaching
the U.S.), in which they would not be persecuted and in which
they would have access to proper asylum procedures. Refugees
fleeing persecution should ordinarily seek protection in the
first safe country to which they travel. Many people seeking
asylum in the U.S. have travelled through one or more countries
in which comparable asylum procedures and protection are
available.
Third, despite greater efficiency in the process, there are
no firm targets for completion of asylum cases. The problem
with delay in the asylum system has been so pervasive that
nothing short of firm, legislated deadlines will be sufficient
to ensure that this problem does not persist into the future.
Fourth, legislation is required to ensure that illegal
aliens denied asylum are actually removed from the U.S. The
reforms in Title III of this bill address this concern.
Finally, asylum legislation should codify the best features
of the administrative reforms of the asylum process, including
the new rules on employment authorization. This will clarify
the firm Congressional support for asylum reform and prevent
court challenges to the administrative reforms on the grounds
that they have not been authorized by Congress.
Reform of parole
Section 212(d)(5) of the INA grants the Attorney General
broad discretion to ``temporarily'' parole aliens applying for
admission to the United States into the country for ``emergent
reasons or reasons deemed strictly in the public interest.''
Under this section, parole is not to be regarded as an
admission of the alien. Once the purposes for such parole are
served, the alien must be returned to the custody from which he
or she was paroled.
The text of section 212(d)(5) is clear that the parole
authority was intended to be used on a case-by-case basis to
meet specific needs, and not as a supplement to
Congressionally-established immigration policy. In recent
years, however, parole has been used increasingly to admit
entire categories of aliens who do not qualify for admission
under any other category in immigration law, with the intent
that they will remain permanently in the United States. This
contravenes the intent of section 212(d)(5), but also
illustrates why further, specific limitations on the Attorney
General's discretion are necessary.
Additionally, the Attorney General has not kept accurate
records in the past of the way in which parole authority is
used. Consequently, Congress has no way to effectively exercise
its oversight authority over the use of parole. Without an
effective control mechanism, the Attorney General can continue
to use the parole authority to implement immigration policy
without Congressional knowledge or approval.
An example of a recent abuse of the parole authority stems
from the September 1994 migration agreement negotiated by the
Clinton Administration with Cuba. To implement this agreement,
the Administration is using the parole authority to admit up to
20,000 Cuban nationals annually. The paroled Cubans will
eventually be entitled to adjust to permanent resident
status.60
\60\ Under the provisions of the Cuban Adjustment Act of 1966,
natives or citizens of Cuba who are admitted or paroled into the United
States after Jan. 1, 1959 are eligible to adjust to permanent resident
status without leaving the U.S. after residing in the country for a
period of one year. See Act of Nov. 2, 1966, 80 Stat. 1161, H.R. Rep.
No. 89-178, 89th Cong., 2d Sess. 3 (1966).
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In this case, the use of parole to fulfill the terms of the
Cuban migration agreement is a misuse and intentionally admits,
on a permanent basis, aliens who are not otherwise eligible for
immigrant visas. According to the Supreme Court, Congress has
plenary power over immigration policy: a power that is largely
immune from interference.61 Such use of the parole
authority has not been authorized by Congress. Indeed, the
Clinton Administration did not even attempt to consult with
Congress in negotiating the Cuban migration agreement.
\61\ Harisiades v. Shaughnessy, 342 U.S. 580 (1952); Fiallo v.
Bell, 430 U.S. 787 (1977); Plyler v. Doe, 457 U.S. 202 (1982).
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Parole should only be given on a case-by-case basis for
specified urgent humanitarian reasons, such as life-threatening
humanitarian medical emergencies, or for specified public
interest reasons, such as assisting the government in a law-
enforcement-related activity. It should not be used to
circumvent Congressionally-established immigration policy or to
admit aliens who do not qualify for admission under established
legal immigration categories.
The need for humanitarian admissions
The United States has traditionally admitted immigrants who
are of special humanitarian concern to our nation. While
provisions exist in the law to admit refugees and aliens
granted asylum, there are aliens of humanitarian concern to the
U.S. that do not meet the definition of a refugee. The lack of
a single, transparent category for the admission of such aliens
has also contributed to the improper use of parole authority by
the Attorney General, as in the case of the implementation of
the Cuban migration agreement. If a category existed in the law
to provide for a limited number of humanitarian visas each year
at the discretion of the Attorney General, migration agreements
such as the recent agreement with Cuba could be negotiated
without violating other existing provisions in immigration law.
C. Reform Proposals
Commission on immigration reform
The Commission on Immigration Reform has recommended a
significant redefinition of priorities and a reallocation of
existing admission numbers to ensure that immigration continues
to serve our national interests. The Commission defined several
principles that should guide immigration policy: the
establishment of clear goals and priorities; the enforcement of
immigration limits; regular periodic review; clarity and
efficiency; enforcement of the financial responsibility of
sponsors to prevent immigrants from becoming dependent on
public benefits; protection of American workers; coherence; and
``Americanization''--the assimilation of immigrants to become
effective citizens.
The Commission recommended that there be three major
categories of legal immigration--family-based, skills-based,
and refugees. The current category for diversity admissions
would be eliminated.
Within the family category, the spouses and minor children
of U.S. citizens would be admitted on an unlimited basis, as
under current law. The parents of citizens could also be
admitted, but with stricter sponsorship requirements than
currently exist. Third priority would be given to the spouses
and minor children of lawful permanent residents. The proposed
400,000 cap for family admissions would accommodate current
demand in these categories and allow for growth in the
unlimited category of spouses and children of citizens. In
addition, the Commission would make available 150,000
additional visas during each of the first 5 years to clear the
backlog of spouses and children (``nuclear family'') of lawful
permanent residents.
The Commission also proposed the elimination of the
following family categories: adult unmarried sons and daughters
of U.S. citizens; adult unmarried sons and daughters of lawful
permanent residents; adult married sons and daughters of
citizens; and brothers and sisters of adult U.S. citizens. This
was done for several reasons: to focus priority on the
admission of nuclear family members; to reduce the waiting time
for nuclear family members of lawful permanent residents
without raising overall immigration numbers; and to eliminate
the extraordinary backlogs in these categories that undermine
credibility of the immigration system. Most importantly, the
Commission believes that ``[u]nless there is a compelling
national interest to do otherwise, immigrants should be chosen
on the basis of the skills they contribute to the U.S.
economy.'' Admission of nuclear family members and refugees
present such a compelling interest, but admission of more
extended family members solely on the basis of their family
relationship is not as compelling.62
\62\ 1995 Commission Report at 72.
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The Commission recommended that up to 100,000 skills-based
immigrants be admitted each year in two basic categories: those
exempt from labor market testing, and those subject to labor
testing. The exempt category would include aliens with
extraordinary ability, multinational executives and managers,
entrepreneurs, and ministers and religious workers. Others that
would be subject to labor market testing include professionals
with advanced degrees and baccalaureate degrees, and skilled
workers with 5 years specialized experience. The category for
unskilled workers would be eliminated. In place of the current
labor certification process, those immigrants subject to labor
market testing could only be admitted if their prospective
employer paid a substantial fee and demonstrated appropriate
attempts to find qualified U.S. workers. The fee would be used
to support private sector initiatives for the education and
training of U.S. workers. In addition, such immigrants would be
admitted on a conditional basis that would convert to permanent
status after 2 years if the immigrant was still employed by the
same employer at the attested original wage or higher.
The Commission recommended that 50,000 admission numbers be
allocated each year to refugees, not including the adjustment
to permanent resident status of aliens already present in the
U.S. who are granted asylum. Refugee admissions could exceed
50,000 in the case of an emergency, or through approval by
Congress.
Administration
The Clinton Administration has not formally submitted to
Congress recommended legislation on legal immigration reform.
However, in testimony before the Senate Subcommittee on
Immigration in September 1995, the Commissioner of the INS
outlined the Administration's proposal on this subject.63
The proposal would call for a flexible annual admissions
ceiling of approximately 500,000, including family and
employment-based admissions, but not refugees. The diversity
category would be eliminated.
\63\ ``Legal Immigration Reform: Hearing Before the Subcommittee on
Immigration of the Senate Judiciary Committee'', 104th Cong., 1st Sess.
(September 13, 1995) (Statement of Doris Meissner, Commissioner,
Immigration and Naturalization Service).
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The Administration would maintain the current unlimited
admissions for spouses, minor children, and parents of U.S.
citizens, and also preserve categories for the adult children
of U.S. citizens and lawful permanent residents. The category
for brothers and sisters of citizens would be eliminated. The
plan makes no specific provision for backlog clearance for
nuclear family members of lawful permanent residents. However,
the Administration believes that recent increases in
applications for naturalization, combined with a new
``Naturalization 2000'' program being implemented by the INS,
will result in naturalization of most of the sponsoring aliens
who are currently lawful permanent residents. This will
``move'' the backlog into the unlimited category for admission
of spouses and minor children of U.S. citizens. The
Administration has estimated that this may increase the number
of admissions in this unlimited category by as much as 60,000
per year, which would cause a concomitant increase in the
overall annual admissions figure. The Administration would
admit 100,000 employment-based immigrants and eliminate the
current category for unskilled workers.
On refugees, the Administration would retain current law,
which permits the ceiling to be set by the President on an
annual basis after consultation with Congress. The State
Department has projected that refugee admissions, which are to
be 90,000 in FY 1996, will decrease to 70,000 in FY 1997 and
50,000 thereafter.64
\64\ 1995 Commission Report at 136.
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V. Public Benefits
As a matter of national policy regarding immigration and
welfare, self-sufficiency has been a basic principle of United
States immigration law since this country's earliest
immigration statutes. It continues to be the immigration policy
of the United States that aliens within the nation's borders
not depend on taxpayer-funded public resources to meet their
needs, but rather rely on their own capabilities and the
resources of their families, their sponsors, and private
organizations. The availability of taxpayer-funded public
benefits should not constitute an incentive for immigration to
the United States.
Since 1882, aliens have been excludable from admission to
the U.S. if found likely to become ``public charges.'' 65
Since 1917, aliens have been subject to deportation from the
U.S. for becoming public charges after entry from causes
arising before entry. By regulation and administrative
practice, the State Department and the INS permit those
immigrants who would otherwise be excluded as public charges to
overcome exclusion through an affidavit of support, which is
executed by a person who agrees to provide financial support
for the alien (the alien's ``sponsor'').
\65\ INA Sec. 212(a)(4), 8 U.S.C. Sec. 1182(a)(4).
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Despite the long-standing principle of self-sufficiency,
aliens have been applying for and receiving public benefits
from Federal, State and local governments at increasing rates.
Only a negligible number of aliens are deported on public
charge grounds. Further, various State court decisions and
decisions by immigration courts have held that the affidavits
of support, as currently constituted, do not impose a binding
obligation on sponsors to reimburse welfare agencies that
provide public benefits to sponsored aliens. As a result, these
provisions have been wholly incapable of assuring that
individual aliens not burden the public benefits system and,
consequently, the taxpayer.
Many studies at the national, State, and local levels have
examined the use of public benefits by non-citizens. One of the
better of these studies was recently conducted by Professor
George J. Borjas, formerly of the University of California at
San Diego and presently at Harvard University. Professor
Borjas, a Cuban immigrant to the U.S. who specializes in
economics, concluded in his study ``Immigration and Welfare,
1970-1990'' that immigrants use public benefits to a greater
degree than citizens, and estimated that the annual cost to the
American taxpayer of providing means-tested public assistance
to immigrants, deducting the amount they pay in taxes, is $16
billion.66 Professor Borjas cites that 9.1 percent of
immigrant households received cash welfare assistance in 1990,
compared with 7.4 percent of native households.67 The
average amount of cash assistance received by an immigrant
household was $5,400 annually, compared with $4,000 for a
native household.68 Further, from 1970-1990 the total
amount of cash assistance received by immigrant households was
56 percent higher than would have been the case if immigrants
used the welfare system to the same extent as natives.69
In a more recent study, Professor Borjas has found that 26
percent of immigrant households receive some form of public
benefits. In the Supplemental Security Income program alone,
immigrant applications increased 580 percent from 1982-1994,
compared to a 49 percent increase for natives.70
\66\ George J. Borjas, Immigration and Welfare, 1970-1990 23 (Nat'l
Bur. Econ. Res. Working Paper No. 4872, Sept. 1994).
\67\ Id. at 4-5.
\68\ Id. at 9.
\69\ Id. at 20.
\70\ Social Security Administration.
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Allowing immigrants to become dependent on public
assistance undermines America's historic immigration policy
that those who come to the country be and remain self-
sufficient. Welfare destroys the recipient's work incentives,
encourages the breakdown of the family unit, and transmits
dependency across generations. Further, it keeps immigrants
from becoming productive participants in American society.
The Committee believes that it is a compelling government
interest to enact new rules for eligibility and sponsorship
agreements in order to assure that aliens be self-reliant in
accordance with the longstanding tenets of national immigration
policy. It is also a compelling government interest to remove
the incentive for illegal immigration provided by the easy
availability of public benefits. Finally, with respect to the
State authority to make determinations concerning alien
eligibility for public benefits in this legislation, a State
that chooses to follow the Federal classification in
determining the eligibility of aliens for public benefits shall
be deemed by any Federal or State court to have chosen the
least restrictive means available for achieving the compelling
governmental interest of assuring that aliens be self-reliant
in accordance with national immigration policy.
VI. Skilled Nonimmigrants (H Visas)
The H-1B Program
Background
Up to 65,000 ``H-1B'' visas 71 are granted each year
for foreign workers coming to perform work in specialty
occupations (requiring at least a baccalaureate degree or its
equivalent) or as fashion models. Since the visas are good for
up to 6 years, a total of 390,000 H-1B aliens can be working in
the United States at any one time. Typical occupations are
computer programmers, engineers, physical therapists and
university professors and researchers.
\71\ See INA Sec. Sec. 101(a)(15)(H)(i)(b) and 214(g)-(i).
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In order to enable H-1B aliens to be brought on board
promptly, employers are not required to engage in a lengthy
labor certification process (such as that used for employment-
based immigrants) prior to the arrival of the alien in the
United States. Protection of American workers from unfair
competition in the H-1B program is accomplished by requiring
employers to file a ``labor condition application'' (``LCA'')
making certain basic attestations. The Secretary of Labor is
empowered to investigate complaints alleging noncompliance with
these attestations.72
\72\ See INA Sec. 212(n).
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The attestations include:
(1) the employer will pay the H-1B alien wages which
will be the higher of the actual wage level paid by the
employer to all other individuals with similar
experience and qualifications for the specific
employment in question or the prevailing wage level for
the occupational classification in the area of
employment, and the employer will provide working
conditions for the H-1B that will not adversely affect
those of workers similarly employed;
(2) there is no strike or lockout in the course of a
labor dispute in the occupational classification at the
place of employment;
(3) the employer has provided notice of the filing of
the application to the bargaining representative of the
employer's employees in the occupational classification
and area for which the H-1Bs are sought, or if there is
no such bargaining representative, has posted notice in
conspicuous locations at the place of employment; and
(4) the LCA will identify the number of workers
sought, the occupational classification in which the
workers will be employed, and the wage rate and
conditions under which they will be employed.
Department of Labor regulations require that the
employer also identify the place of intended employment
and the specific source relied upon to determine the
prevailing wage.73
\73\ See 59 Fed. Reg. 65646, 65662 (Dec. 20, 1994); 20 CFR 655.730
(1995).
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The Secretary of Labor must accept the LCA within 7 days
unless it is incomplete or obviously inaccurate. Departmental
investigations as to whether the employer has failed to fulfill
its attestations or has misrepresented material facts in its
LCA are triggered by complaints filed by aggrieved persons or
organizations. The employer can be subject to penalties
including civil monetary fines of up to $1,000 per violation
and an inability to have petitions approved for alien workers
(both immigrant and nonimmigrant) for at least 1 year. In
addition, if wages were not paid at the required wage level,
back pay can be awarded to an H-1B alien.
The current controversy
The H-1B program has recently become embroiled in
controversy. Certain employers appear to be using H-1B aliens
in ways contrary to the intent of the program. They are
building workforces almost entirely composed of H-1Bs instead
of using the aliens to ameliorate temporary skills shortages in
the American labor force, and are often serving as ``job
contractors,'' leasing out these pooled H-1Bs to other firms.
Since the job contractor, not the business where the H-1B
employee will actually work, is considered the employer, it is
the contractor's responsibility to make and fulfill the
required attestations. This can have the effect of defeating
the H-1B program's safeguards. Finally, in many instances
American employees are being fired and replaced with H-1Bs at
lower wages. Secretary of Labor Robert Reich recently expressed
worry over these practices:
Our experience with the practical operation of the H-
1B program has raised serious concerns * * * that what
was conceived as a means to meet temporary business
needs for unique, highly skilled professionals from
abroad is, in fact, being used by some employers to
bring in relatively large numbers of foreign workers
who may well be displacing U.S. workers and eroding
employers' commitment to the domestic workforce. Some
employers * * * seek the admission of scores, even
hundreds of [H-1Bs], especially for work in relatively
low-level computer-related and health care occupations.
These employers include ``job contractors,'' some of
which have a workforce composed predominantly or even
entirely of H-1B workers, which then lease these
employees to other U.S. companies or use them to
provide services previously provided by laid-off U.S.
workers.74
\74\ ``Nonimmigrant Visas: Hearings Before the Subcomm. on
Immigration of the Senate Comm, on the Judiciary,'' 104th Cong., 1st
Sess. (Sept. 28, 1995) (Statement of Robert Reich, Secretary of Labor).
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The Department of Labor response
Responding to such concerns, the Department of Labor
promulgated a set of final rules which went into effect on
January 19, 1995.75 Instead of targeting job contractors
or companies relying to an inordinate degree on H-1B aliens,
the regulations imposed new requirements on all employers of H-
1B aliens. The Committee believes that four of the regulations
and a section of the appendix to the regulations are unduly
burdensome to legitimate users of H-1Bs.
\75\ See 59 Fed. Reg. 65646 (Dec. 20, 1994).
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The first of the regulations requires that ``[w]here the
employer places any H-1B nonimmigrant(s) at one or more
worksites not contemplated at the time of filing the
application, but which are within the area of intended
employment listed on the [application],76 the employer is
required to post notice(s) at such worksite(s) * * * .''
77
\76\ The area of intended employment is defined as the area
``within normal commuting distance of the place (address) of
employment.'' 20 CFR 655.715 (1995).
\77\ 20 CFR 655.734(a)(1)(ii)(D) (1995).
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This regulation has a defensible purpose. If an employer is
a job contractor and places H-1Bs at other firms, a posting at
the contractor's headquarters will not necessarily provide
adequate notice to the employees of the other firms, who are
the ones who might be negatively impacted and who must file
complaints for the enforcement program to work. A regulation
requiring additional postings in such circumstances makes
sense, and was in fact once proposed by the Department.78
But the regulation does not stop there. It requires that all
employers employing H-1Bs must ensure that notice is posted at
whatever worksites an H-1B alien ventures to in the course of
his or her employment. Thus, if an H-1B goes to a client of his
or her employer to service equipment or make a sales pitch,
notice has to be posted at the client's location. If an H-1B
goes to a potential client to prospect for business, to a law
firm to give a deposition, to a university for training, or to
a convention, notice has to be posted at the respective
locations. In all these instances, the employer must obtain the
consent from the owners of the subject property to post notice
(including the wages of the H-1B) on their property. This
mandate requires more than customary and reasonable business
norms would allow.
\78\ See 58 Fed. Reg. 52152, 52161 (Oct. 6, 1993)(Sec. ------.735).
The proposed regulation defined a job contractor as ``an employer whose
employees perform their duties in whole or in part at worksites that
are owned, operated, and controlled not by the job contractor, but by
an entity with which the job contractor has a contractual relationship
and which displays indicia of an employment relationship with the job
contractor's employees (e.g., assignment of tasks; day to day
supervision of performance; evaluation of performance).'' Id. at
Sec. ------.715.
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The second of the problematic regulations requires an
employer to file a new LCA if any H-1B or combination of H-1Bs
is placed in an area of employment not listed in their original
LCA(s) for a cumulative period of more than 90 workdays within
a 3-year period. A ``workday'' means any day on which any H-1B
performs any work in a non-listed area of employment.79
Thus, if New York City is not listed on the employer's LCA(s),
the employer may not permit any H-1B to work in that area
(without filing a new LCA listing New York City) if, in the
previous 3 years, any H-1B(s) employed by that employer have
worked in New York City for a cumulative total of 90 days.
\79\ 20 CFR 655.735(a), (b)(4) (1995).
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This regulation also has a defensible purpose, to ensure
that the notice and prevailing wage requirements of an
attestation apply to the location where an H-1B alien actually
works. For example, if an H-1B is brought to the country by a
job contractor in Baltimore and placed at a firm in San
Francisco, the notice attestation in the original LCA will only
require notice in Baltimore and the wage requirement will
require the payment of the wage prevailing in Baltimore.
Requiring a new LCA with San Francisco listed as the area of
employment will result in notice to co-workers in San Francisco
and the payment of the San Francisco prevailing wage. For the
same reasons, an additional application also makes some sense
when a company sends an H-1B to work permanently at its San
Francisco branch, where the initial LCA stated that he or she
would work in its Baltimore headquarters.
Again, however, the regulation covers all instances in
which an H-1B is sent out of the office. In business today,
success in many occupations requires frequent travel around the
country and the Committee recognizes two undue burdens with the
application of this regulation to all employers of H-1B
nonimmigrants. First is requiring an employer to file a new LCA
whenever it sends H-1Bs on legitimate business trips exceeding
some arbitrary period of time to cities not listed on their
LCAs. Second is the administrative burden of having to track
every city in the country to which it sends H-1Bs (on whose
LCAs the city is not listed) to ensure that no city receives
any combination of such H-1Bs for a total of more than 90 days
every three years.
The third provision of concern to the Committee requires
employers who send H-1Bs to a non-listed area of employment to
pay the H-1B per diem and transportation expenses (for both
work and non-work days) at rates no lower than those prescribed
for Federal Government employees on travel or temporary
assignment.80 This provision appears designed to ensure
that the salaries of H-1Bs are not indirectly lowered by
forcing them to pay their own travel expenses, and to ensure
that ``travelling'' employees are, in fact, on temporary
assignment. However, to require that such expenses be
reimbursed at Government rates is unacceptable micromanagement
of corporate travel policy for companies that are not prone to
abusing the H-1B program: non-H-1B dependent employers.
\80\ 20 CFR 655.735(b)(3) (1995).
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The fourth area of concern involves investigations by the
Department of Labor. Section 212(n)(2)(A) of the INA states
that ``complaints may be filed by any aggrieved person or
organization (including bargaining representatives).'' Congress
clearly intended to implement a complaint-driven system in
which co-workers, unions, and competitors would be the parties
authorized to complain and thus set into motion Department of
Labor investigations. However, the regulations now define
aggrieved party to include ``[a] government agency which has a
program that is impacted by the employer's alleged non-
compliance with the labor condition application'' 81--
i.e., the Department of Labor. Then, the regulations state that
the Secretary shall investigate misrepresentation or failure of
an employer to meet an attestation ``either pursuant to a
complaint or otherwise''.82 This action by the Department
of Labor contravenes the legislative intent of the Immigration
Act of 1990.
\81\ 20 CFR 655.715 (1995).
\82\ 20 CFR 655.710 (1995).
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Lastly, the appendix to the regulations states that in
determining the actual wage level paid by the employer to
workers similarly employed as an H-1B, ``[t]he employer must
have and document an objective system used to determine the
wages of non-H-1B workers, and apply that system to H-1B
nonimmigrants as well.'' 83 Whether the intent of this
requirement was just to make it easier for the Department to
determine the actual wage paid in various instances or whether
broader policy goals were in mind, the move was unwarranted. It
was clearly never the intent of Congress to use the H-1B
program as a way of mandating how employers pay their non-H-1B
employees. As long as an employer pays its H-1Bs the actual
wage (assuming it is higher than the appropriate prevailing
wage), the employer should be free to determine its wage scale,
constrained by factors such as market forces, contractual
agreements, collective bargaining, and the minimum wage.
\83\ 20 CFR Appendix A to Subpart H to Part 655 (1995).
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In summary, the newly promulgated regulations are somewhat
successful in dealing with abusive employers and with the
problems that the job contractor phenomenon and the existence
of firms with multiple worksites pose to the H-1B enforcement
scheme. However, they do so at a cost which may be too high for
the legitimate employer hiring a relatively small number of H-
1B aliens. Further, they do not address the specter of
employers laying off American workers and replacing them with
lower-cost H-1Bs or treat the heavy user of H-1Bs any more
severely than they do the employer who only uses the aliens to
fill temporary skills gaps.
The H-1A Program
The special pilot program created by the Immigration
Nursing Relief Act of 1989 (``INRA'', Pub. L. 101-238) to
permit foreign nurses to come to work temporarily in the United
State expired on August 31, 1995. Prior to the creation of this
special program, nurses had been admitted under what is now the
H-1B temporary non-immigrant program. The Committee expects
that eligible foreign non-immigrant nurses will again be
admitted under the H-1B program.
The valuable screening and competency requirements
contained in the pilot program should be retained. The
authentication of applications and supporting documents for
foreign health care workers is of vital importance to
consumers, and can serve as an important mechanism to reduce
illegal immigration as well. For example, prior to the
enactment of the Immigration Nursing Relief Act of 1989 (INRA),
the Department of Health, Education, and Welfare reported that
more than 80 percent of all foreign-licensed nurses were unable
to pass the U.S. Registered Nurse examination of the first
try.84 Foreign nurses who were unable to pass the exam
were more likely to remain illegally in the U.S. Following the
imposition of a requirement that applicants' credentials be
authenticated, the number of foreign nurses who failed the U.S.
nursing exam fell to 20 percent.85 Pursuant to the pilot
program, the successful authentication process was conducted by
a non-governmental body, the Commission on Graduates of Foreign
Nursing Schools, and funded by a fee paid by the applicant and
at no cost to the U.S. government. Additionally, the
Commission's work saved valuable governmental resources by also
substantially reducing the burden on consular officers to
authenticate credentials.
\84\ Survey of Foreign Nurse Graduates, DHEW Publication No. HRA
76-13 (1976).
\85\ Barbara S. Jacobsen and Theresa M. Kowalski, ``Validity Study:
CGFNS Qualifying Examinations as Predictors of Success on United States
Registered Nurse Licensing Examination,'' Commission on Graduates of
Foreign Nursing Schools (1994).
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The Department of State has statutory authority under
Section 222 of the INS (8 U.S. C. Section 1202) to require
authentication of applications for both immigrant and non-
immigrant visas. Again, because the protection of the public
health and safety must be paramount, the Committee believes
that the Department of State should revise its visa application
procedures under Section 222 to require health care workers to
authenticate their visa application and supporting documents in
the same manner as under INRA. The health care workers covered
by this requirement should include nurses, physical therapists,
and occupational therapists, as well as both licensed and
unlicensed health occupations in which the practitioner
diagnoses, delivers care, or supports the delivery of care such
that incompetent practitioners in those occupations might
jeopardize public health.
Similarly, the Committee expects, therefore, that the INS,
in consultation with the DOL, will promulgate separate H-1B
standards for nurses which will require that foreign nurses
admitted non-immigrants under the H-1B category meet
requirements identical to those now imposed on foreign nurses
seeking admission as immigrants, including the successful
completion of the examination recognized by the DOL in 20 CFR
Sec. 656.10 (a)(2)(I).
The Committee recommends that the Departments of State and
Labor use an independent credentialing organization with
sufficient experience and resources on health care-related
foreign educational institutions, ministries of health and
licensing jurisdictions. The organization should have a proven
record of consistent and accurate credentialing. One such
organization is the Commission on Graduates of Foreign Nursing
Schools which has both the experience and resources to provide
this service.
Previous Consideration and Hearings
On February 8, 1995, the Subcommittee on Immigration and
Claims held an oversight hearing on the Management Practices of
the Immigration and Naturalization Service. Witnesses were
Laurie Ekstrand, Associate Director, Administration of Justice
Issues, General Government Division, accompanied by James
Blume, Assistant Director, Administration of Justice Issues,
General Government Division, General Accounting Office; and
Chris Sale, Deputy Commissioner, Immigration and Naturalization
Service.
On February 24, 1995, the Subcommittee on Immigration and
Claims held an oversight hearing on Foreign Visitors Who
Violate the Terms of Their Visas by Remaining in the United
States indefinitely. Witnesses were Honorable Barbara Jordan,
Chair, accompanied by Robert Hill, Commissioner, and Susan
Martin, Executive Director, Commission on Immigration Reform;
Diane Dillard, Deputy Assistant Secretary for Consular Affairs,
Department of State; James Puleo, Executive Associate
Commissioner, Programs, Immigration and Naturalization Service;
and Robert Warren, Director, Statistics Branch, Immigration and
Naturalization Service.
On March 3, 1995, the Subcommittee on Immigration and
Claims held an oversight hearing on Work Site Enforcement of
Employer Sanctions. Witnesses were James Puleo, Executive
Associate Commissioner, Programs, U.S. Immigration and
Naturalization Service, accompanied by Brian J. Vaillancourt,
Director Civil Matters, Investigations Division, U.S.
Immigration and Naturalization Service; Maria Echeveste,
Administrator, Wage and Hour Division, U.S. Department of
Labor; Shirley S. Chater, Commissioner, Social Security
Administration, U.S. Department of Health and Human Services;
Robert Rasor, Special Agent, Secret Service, U.S. Department of
the Treasury; Robert Charles Hill, Member, U.S. Commission on
Immigration Reform, accompanied by Susan Forbes Martin,
Executive Director, U.S. Commission on Immigration Reform; Wade
Avondoglio, Owner, Perona Farms Restaurant, Member, National
Restaurant Association; Richard Holcomb, Commissioner, Virginia
Department of Motor Vehicles; W. Marshall Rickert, Motor
Vehicle Administrator, Maryland Motor Vehicle Administration;
A. Torrey McLean, State Registrar, North Carolina Department of
Vital Records.
On March 10, 1995, the Subcommittee on Immigration and
Claims held an oversight hearing on Border Security. The
Members of Congress testifying were Honorable Duncan Hunter,
Honorable Brian Bilbray, and Honorable Ronald Coleman. Other
witnesses were Mary Ryan, Assistant Secretary of State for
Consular Affairs, Department of State, accompanied by Frank
Moss, Special Assistant for Border Security, Bureau for
Consular Affairs; Honorable Doris Meissner, Commissioner,
Immigration and Naturalization Service, accompanied by
Silvestre Reyes, Sector Chief, U.S. Border Patrol, El Paso
Sector, and Gus de la Vina, Regional Director, Western Region,
Immigration and Naturalization Service; Laurie Ekstrand,
Associate Director, Administration of Justice Issues, General
Government Division, General Accounting Office; Brigadier
General Edmund Zysk, Deputy Commander, California National
Guard, accompanied by Lieutenant Colonel Bill Hipsley, Training
Officer, California National Guard.
On March 23, 1995, the Subcommittee on Immigration and
Claims held an oversight hearing on Removal of Criminal and
Illegal Aliens. Witnesses were T. Alexander Aleinikoff, General
Counsel, Immigration and Naturalization Service, accompanied by
James Puleo, Executive Associate Commissioner, Programs, and
Joan Higgins, Assistant Commissioner, Detention and
Deportation; Anthony C. Moscato, Director, Executive Office for
Immigration Review, accompanied by Paul Schmidt, Chairman,
Board of Immigration Appeals, and Michael J. Creppy, Chief
Immigration Judge.
On March 30, 1995 the Subcommittee on Immigration and
Claims held an oversight hearing on Verification of Eligibility
for Employment and Benefits. Witnesses were Honorable Barbara
Jordan, Chair, Commission on Immigration Reform, accompanied by
Susan Martin, Ph.D., Executive Director; Robert L. Bach, Ph.D.,
Executive Associate Commissioner, Policy and Planning, U.S.
Immigration and Naturalization Service, accompanied by John E.
Nahan, Director, Systematic Alien Verification for Entitlements
(SAVE) Program; William Ludwig, Administrator, Food and
Consumer Service, U.S. Department of Agriculture; Wendell E.
Primus, Deputy Assistant Secretary for Human Services Policy,
U.S. Department of Health and Human Services, accompanied by
Sandy Crank, Associate Commissioner, Social Security
Administration, and Mack Storrs, Division Director for AFDC
Policy; Nelson Diaz, General Counsel, U.S. Department of
Housing and Urban Development; Richard W. Velde, Esq.; Austin
T. Fragomen, Jr., Chairman, American Council on International
Personnel; Joseph A. Antolin, Deputy Director of Field
Operations, Illinois Department of Public Aid; Esperita
Johnson-Bullard, Eligibility Supervisor, Division of Social
Services, Department of Human Services, City of Alexandria,
Virginia.
On April 5, 1995, the Subcommittee in Immigration and
Claims held an oversight hearing on the Impact of Illegal
Immigration on Public Benefit Programs and the American Labor
Force. Witnesses were Michael Fix, Esq., The Urban Institute,
accompanied by Jeffrey Passel; Dr. Donald Huddle, Rice
University; Dr. Georges Vernez, RAND; Dr. George Borjas,
University of California at San Diego; Dr. Joseph Altonji,
Northwestern University; Dr. B. Lindsay Lowell; Dr. Vernon
Briggs, Jr., Cornell University; Dr. Frank Morris, Morgan State
University; Dr. Norman Matloff, University of California at
Davis; Dr. Peter Skerry, Woodrow Wilson International Center
for Scholars.
On May 17, 1995, the Subcommittee on Immigration and Claims
held an oversight hearing on Legal Immigration Reform
Proposals. Witnesses were Susan Martin, Ph.D., Executive
Director, Commission on Immigration Reform; Peter Brimelow,
Author, ``Alien Nation''; Peter Skerry, Wilson Center, Philip
Martin, Professor of Agricultural Economics, University of
California at Davis; Harris Miller, President, Information
Technology Association of America; Markley Roberts, Assistant
Director, Economic Research Department, AFL-CIO; Demetrios
Papademetriou, Carnegie Endowment for International Peace; Mark
Krikorian, Executive Director, Center for Immigration Studies;
Professor John Guendelsberger, Pettit College of Law, Ohio
Northern University; Michael Lempres, Esq., Akin, Gump,
Strauss, Hauer, & Feld.
On April 24, 1995, the Subcommittee on Immigration and
Claims held a Members' Forum on Immigration. The following
Members testified. Hon. Ronald Packard; Hon. Zoe Lofgren; Hon.
Brian Bilbray; Hon. Dana Rohrabacher; Hon. William Martini;
Hon. Mark Foley; Hon. Porter Goss; Hon. Jay Kim; Hon. Owen
Pickett; Hon. Robert Underwood; Hon. Susan Molinari; Hon. Patsy
Mink; Hon. Anthony Beilenson; Hon. Andrea Seastrand; Hon.
Esteban Edward Torres; Hon. Bob Filner; Hon. Tim Hutchinson;
Hon. Ronald Coleman.
On June 28, 1995, the Subcommittee on Immigration and
Claims held a joint hearing with the Senate Subcommittee on
Immigration to receive testimony from the Commission on
Immigration Reform regarding the Commission's interim
recommendations on legal immigration reform. Testifying was the
Honorable Barbara Jordan, Chair, accompanied by Michael
Teitelbaum, Vice Chair; Bruce Morrison, Commissioner; Robert
Charles Hill, Commissioner; and Susan Martin, Executive
Director.
On June 29, 1995, the Subcommittee on Immigration and
Claims held a hearing on H.R. 1915, the Immigration in the
National Interest Act of 1995. Witnesses were T. Alexander
Aleinikoff, Executive Associate Commissioner for Programs,
Immigration and Naturalization Service; Anthony C. Moscato,
Director, Executive Office for Immigration Review; Diane
Dillard, Acting Assistant Secretary for Consular Affairs,
Department of State; John R. Fraser, Deputy Administrator, Wage
and Hour Division, Department of Labor; Dr. Lawrence H.
Thompson, Principal Deputy Commissioner, Social Security
Administration; Robert Rector, Senior Policy Analyst, The
Heritage Foundation; Dr. Vernon Briggs, Jr., School of
Industrial Relations, Cornell University; Austin T. Fragomen,
Jr., Chairman, American Council on International Personnel;
Daryl R. Buffenstein, President, American Immigration Lawyers
Association; David Simcox, Research Director, Negative
Population Growth; Dr. Frank Morris, Dean, Morgan State
University; Carl Hampe, Esq., Paul, Weiss, Rifkind, Wharton &
Garrison; John Swenson, Executive Director, Migration and
Refugee Services, U.S. Catholic Conference; Raul Yzaguirre,
President, National Council of La Raza; Dr. Michael Teitelbaum,
Program Officer, Alfred P. Sloan Foundation; David North,
Independent Immigration Researcher; Bill Frelick, Senior Policy
Analyst, U.S. Committee for Refugees; Karen K. Narasaki,
Executive Director, National Asian Pacific American Legal
Consortium; Dan Stein, Executive Director, The Federation for
American Immigration Reform.
Provisions of H.R. 2202
The goal of H.R. 2202 is to curb illegal immigration and
reform legal immigration in the national interest. H.R. 2202
mandates specific enforcement measures against illegal
immigration, including the hiring of new Border Patrol agents
as well as interior enforcement personnel, authorizes the
acquisition of additional resources for immigration enforcement
and control, and overhauls procedures to allow the prompt
identification, apprehension, and removal of illegal aliens
from the United States. On the legal immigration front, H.R.
2202 reorients current admission priorities to directly advance
U.S. interests in the preservation of the nuclear family, the
admission of highly-skilled individuals, the protection of U.S.
workers from unfair competition, and the safety of refugees.
Title I--Border Control
Immigration control is a fundamental aspect of national
sovereignty, and protection of that sovereignty begins with
securing its borders. Title I of H.R. 2202 authorizes the
addition of 1,000 border patrol agents each year through FY
2000, the hiring of support personnel for border enforcement,
and the procurement of advanced technologies to prevent illegal
border crossings.
Section 101 increases the number of Border Patrol agents by
1000 per year from 1996 through 2000, raises by 800 the number
of support personnel for border enforcement, and requires that
new personnel be deployed in sectors along the border in
proportion to the level of illegal immigration through those
sectors. Section 130006 of the Violent Crime Control and Law
Enforcement Act of 1994 (Pub. L. 103-322, Sept. 13, 1994),
authorized the appropriation of increased resources for INS
enforcement efforts, and specified that funds be allocated to
increase the Border Patrol by 1,000 agents per year from FY
1995 through FY 1998. This section requires that such agents be
hired and that the 1,000 per year increase continue through FY
2000. In addition, by requiring deployment on the border, this
section states a clear policy that Border Patrol resources
should be used primarily at the border to deter illegal
crossings and to apprehend those illegal aliens who do cross at
the earliest possible juncture. This does not mean, however,
that efforts at interior enforcement should be reduced. Section
358, in fact, authorizes the expenditure of $150 million to
hire new personnel for interior enforcement, including
investigators and detention and deportation officers.
Section 102 requires the Attorney General to install
additional fences and roads to deter illegal immigration. In
the San Diego sector, it calls for extension of the new fencing
to a point 14 miles east of the Pacific Ocean, and the
construction of second and third fences, with roads between the
fences, to provide an additional deterrent. This adopts the
recommendations of the Sandia Laboratories in New Mexico, in a
January 1993 report, that a series of fences, with interspersed
roads, be constructed in areas with the highest concentration
of illegal immigration.
This section also provides for a limited waiver of the
Endangered Species Act. This is necessary because the Committee
has learned that roads and fences have not been built in
certain areas along the border because of concern that animal
habitats might be affected. Without these roads and fences,
Border Patrol agents are unable to properly patrol these areas.
Furthermore, the national interest requires that the Border
Patrol be able to deter entry at any feasible point of entry
along the land border. The International Boundary and Water
Commission already provides guidance to the INS and other
agencies regarding the construction of barriers, and potential
environmental impacts may be discussed and resolved in that
context.
Section 102 also requires the forward deployment of Border
Patrol agents to provide a visible deterrent to illegal
immigration. The Committee is concerned that notwithstanding
the success of Operation Hold-the-Line in El Paso, the INS has
been reluctant to adopt similar forward deployment of agents in
other border sectors. At the same time, the Committee
recognizes that forward deployment may work better in certain
sectors than in others due to factors such as topography and
established migration patterns. Accordingly, section 102(d)
requires the Attorney General to report to Congress on the
success of forward deployment. This report will enable Congress
to better exercise its oversight authority in this critical
area of immigration enforcement and make appropriate
adjustments in policy and available resources.
Section 104 requires improvement in the Border Crossing
Identification Card. Amendments adopted by the Committee at the
request of the INS will give the INS a longer time period to
implement these new improvements. However, the Committee
intends that the INS move as rapidly as possible to: (1) ensure
that all newly-issued border crossing cards include additional
security features; (2) replace existing cards with new secure
cards; and (3) require verification of the identity of the
holder of the border crossing card each time it is used to seek
admission into the U.S. Although not specifically addressed in
this legislation, the Committee also believes that it would be
appropriate to impose a fee for the new secure card. The
Committee understands that pursuant to an existing exchange of
letters between the United States and Mexico, no fee may be
charged for issuance of the border crossing card. Issuance of a
more secure border crossing card is in the interests of both
nations, since it will deter illegal migration and facilitate
legitimate border traffic. The cost per card should be modest,
but it is most appropriately borne by those who benefit from
use of the card. The Attorney General and the Secretary of
State should cooperate in discussions with the Government of
Mexico to remove any existing restrictions on the collection of
a fee for the border crossing card.
A number of provisions address the problem of the
``revolving door'' at the southern land border. Apprehended
illegal aliens who agree to voluntarily return to Mexico in
lieu of being placed in removal proceedings often make repeated
attempts to cross the border, with no consequences attached.
While prompt removal of illegal aliens should be the goal of
immigration enforcement, the ability to cross into the United
States over and over with no consequences undermines the
credibility of our efforts to secure the border.
Section 105 sets a civil penalty for attempted illegal
entry into the U.S. Under this provision, illegal aliens would
be liable for a significant fine each time they attempt to
cross. This provision is not intended to require that indigent
aliens be detained in the United States until they are able to
obtain sufficient funds to pay the fine. Prosecutorial
discretion should be exercised in favor of rapid removal of
illegal aliens from the United States. However, the civil
penalty is intended to act as a deterrent to those who are
otherwise determined to make repeated attempts to cross
illegally into the United States.
Section 106 authorizes the appropriation of funds necessary
to detain and prosecute any alien who has attempted illegal
entry into the U.S. on more than two occasions.
Section 111 requires establishment of a pilot program to
repatriate illegal aliens to the interior of their home
countries. Release of aliens at the border, from where they can
easily and immediately attempt re-entry, is particularly
inappropriate in the case of aliens who have been ordered
deported after proceedings before an immigration judge, and
especially in the case of aliens involved in criminal activity.
Releasing such deported aliens to a situation where they can
immediately attempt re-entry undermines immigration
enforcement, weakens border security, and increases the risk of
crime.
The Committee believes that the INS, in cooperation with
other law enforcement agencies, should implement a number of
approaches to make deportation more effective by reducing the
likelihood that aliens physically removed from the United
States will attempt re-entry. Primary effort should be given to
programs for repatriating illegal aliens to the interior of the
countries to which they are deported, thus making it more
difficult for them to attempt illegal reentry. Repatriation to
third countries, where the alien is removed to a country other
than that from which the alien has arrived directly to the
United States, also should be considered. For example, if a
national of a third country crosses into the United States from
Canada and is apprehended at the border, procedures should
exist for removing that alien expeditiously to the alien's
country of nationality. The Committee believes that the reforms
of the removal process adopted in Title III of this bill would
facilitate such efforts by the INS, and that pilot projects
with a required report to Congress offer the best opportunity
to identify sound approaches to this problem.
Title I also addresses interior enforcement issues which
relate directly to the problem of visa overstays and criminal
aliens. Section 112 requires a pilot program to determine the
feasibility of using closed military bases as INS detention
centers. Lack of detention space is frequently cited as a
reason why the INS is able to remove only a small fraction of
deportable aliens. This problem is particularly acute when the
INS is unable to detain criminal aliens. Use of converted
military facilities may help bridge the gap between the need
for detention space and available capacity. The INS already has
planned to use one closed military facility as a site for
training of new immigration officers and Border Patrol agents.
Other uses of such facilities to aid in immigration enforcement
should be pursued.
Section 113 seeks to improve tracking of visa overstays by
requiring pilot projects at 3 major international airports
under which the INS would directly collect records of departure
from every departing alien passenger. As previously discussed,
the INS lacks the ability to accurately track whether aliens
with permission to enter the United States temporarily leave
within the time limit set for their departure. This makes it
more difficult for the INS to assess the extent of the overstay
problem, and more importantly, to determine if individual
aliens are violating, or have violated, their nonimmigrant
status. The United States should test the feasibility of a
system of uniform departure controls for all aliens. Initial
pilot projects should focus on airports with the highest volume
of international travel. A pilot program should first be
implemented in order to test the cost and effectiveness of a
comprehensive departure control system before a decision is
made to make such a program permanent. The pilot program,
however, should be seen as a first step toward eventual
implementation of a system that will enable INS to readily
identify all aliens who violate their nonimmigrant status by
overstaying.
Section 121 authorizes the appropriation of funds to
increase the number of investigators and other enforcement
personnel deployed in the interior of the United States.
Title II--Enhanced Enforcement and Penalties Against Alien Smuggling
and Document Fraud
Sections 201 through 205 permit the INS to seek wiretap
authorization under 18 U.S.C. 2516(1) in investigations of
alien smuggling and document fraud; make document fraud and
alien smuggling crimes indictable as racketeering offenses
under the Racketeer Influenced and Corrupt Organizations Act
(RICO); increase criminal penalties for alien smuggling,
particularly where the smuggling is done for financial gain,
involves criminal aliens, or multiple illegal entries; increase
the number of U.S. attorneys available for the prosecution of
immigration crimes; and expand the undercover investigations
authority of the INS.
Section 211 through 216 increase civil and criminal
penalties for document fraud, and establish new penalties for
knowing preparation or presentation of fraudulent documents,
and for making false claims to citizenship. Section 221 extends
asset forfeiture authority under 18 U.S.C. 982(a) in the case
of aliens convicted of passport or visa fraud, and section 222
permits the issuance of subpoenas for bank records in
investigating such crimes.
Title III--Apprehension and Removal of Illegal Aliens
Subtitle A--Reform of Removal Procedures
Subtitle A of Title III (sections 301 through 309)
streamlines rules and procedures in the Immigration and
Nationality Act to make it easier to deny admission to
inadmissible aliens and easier to remove deportable aliens from
the United States. (Due to complexity of these provisions,
detailed analysis and comment of some provisions is reserved to
the section-by-section analysis.)
Section 301 provides that aliens who have entered the
United States without being legally admitted are now classified
as ``inadmissible'' and, if apprehended, bear the same burden
of proof as an alien seeking to be admitted at a port of entry:
to establish clearly and beyond doubt that they are entitled to
be legally admitted. Aliens who have been legally admitted, but
who overstay their visas or otherwise violate their immigration
status (such as by committing crimes), must establish by clear
and convincing evidence that they are lawfully present. Aliens
who have been illegally present in the U.S. for an aggregate of
12 months will, with certain exceptions, not be eligible for
permanent residence or other immigration benefits for 10 years.
Section 301(e) makes inadmissible to the United States any
former U.S. citizen who officially renounces United States
citizenship for the purpose of avoiding taxation by the United
States. The Committee intends that this section shall apply
solely to those individuals who officially renounce their U.S.
citizenship after the date on which this section becomes
effective.
Section 302 provides that an arriving alien can be denied
entry into the U.S. by an immigration officer because of
misrepresentation, use of fraudulent documents, or lack of any
documents. The alien may be ordered removed without a hearing
before an immigration judge, and without administrative or
judicial review. This provision is based upon legislation
approved by the Subcommittee on International Law, Immigration,
and Refugees during the 103rd Congress.
This provision is necessary because thousands of aliens
arrive in the U.S. at airports each year without valid
documents and attempt to illegally enter the U.S. Unless such
aliens claim to be U.S. nationals, or state a fear of
persecution, there is no requirement under the Constitution or
international treaty to do anything other than return them, as
promptly as possible, to where they boarded the plane to come
here. Neither international law nor the Due Process Clause of
the Fifth Amendment require that such aliens be given a hearing
before an immigration judge or a right to appeal.
Section 302 also requires that an alien subject to
expedited removal who claims persecution or otherwise indicates
a desire to apply for asylum be interviewed by an asylum
officer to determine if the alien has a ``credible fear'' of
persecution. A ``credible fear'' is established if the alien is
more likely than not telling the truth, and if there is a
reasonable probability that the alien will meet the definition
of refugee and otherwise qualify for asylum. This standard,
therefore, is lower than the ``well-founded fear'' standard
needed to ultimately be granted asylum in the U.S.--the
arriving alien need only show a probability that he will meet
the well-founded fear standard. The credible fear standard is
designed to weed out non-meritorious cases so that only
applicants with a likelihood of success will proceed to the
regular asylum process. If the alien meets this threshold, the
alien is permitted to remain in the U.S. to receive a full
adjudication of the asylum claim--the same as any other alien
in the U.S.
Under this system, there should be no danger that an alien
with a genuine asylum claim will be returned to persecution.
The initial screening, which should take place in the form of a
confidential interview, will focus on two questions: is the
alien telling the truth; and does the alien have some
characteristic that would qualify the alien as a refugee. As in
other cases, the asylum officer should attempt to elicit all
facts relevant to the applicant's claim. It is not unreasonable
to expect the applicant to be truthful in such an interview.
Nor is it unreasonable to expect that, in the case of a person
genuinely fleeing persecution, that the interview will yield
sufficient facts to determine that the alien has a reasonable
likelihood of being successful in the full asylum process.
Section 302 permits the interview itself to be carried out
by a full-time INS asylum officer, or by an INS inspector or
other official who has received the complete training provided
to full-time asylum officers and has reasonable access to
country condition reports and other resources that are used by
asylum officers to assess the credibility and foundation of
asylum claims.
Section 304 provides that there will be a single,
streamlined ``removal proceeding'' before an immigration judge
for all inadmissible and deportable aliens. This will replace
the current exclusion proceedings under section 236 of the INA,
and deportation proceedings under section 242. The
consolidation will end procedural disputes contesting the type
of proceeding an alien should be subject to, disputes that
often turn on the elusive question of whether an illegal alien
has been apprehended immediately upon entry, or evaded
government control for a period of time. Instead, the focus
will be upon whether the alien has or has not been lawfully
admitted to the U.S.
Section 304 also will simplify procedures for initiating
removal proceedings against an alien. There will be a single
form of notice, stating the nature and legal authority for the
proceedings, the charges against the alien, the fact that the
alien may be represented by counsel at no expense to the
government, and, importantly, the specific requirement that the
alien immediately provide the Attorney General with an address
and phone number at which the alien may be contacted, as well
as any change in that address or phone number. The Committee is
particularly concerned with two problems regarding lack of
accurate information on alien's addresses. First, many aliens
do not leave forwarding addresses, thus making delivery of
notice impossible. Second, there often are protracted disputes
concerning whether an alien has been provided proper notice of
a proceeding. This impairs the ability of the government to
secure in absentia deportation orders in cases where aliens
fail to appear for their hearings; in many such cases, aliens
will petition to reopen their hearings on the grounds that they
never received proper notice.
Section 304 addresses these problems with a number of new
requirements. First, it requires the INS to establish a central
address file to accurately record address information,
including changes, provided by aliens. Second, it provides that
service by mail of the required notice of hearing is sufficient
if there is proof of delivery to the most recent address
provided by the alien. Third, it authorizes the immigration
judge to enter an in absentia order if the alien fails to
appear provided that there is proof of attempted delivery at
this address. Fourth, it allows an alien to rescind an in
absentia order only in the case of specified exceptional
circumstances or if the alien demonstrates that notice was not
received notwithstanding the alien's compliance with the notice
of address requirements.
At the time of the service of notice of hearing, or at any
time thereafter, an alien must be provided oral notice, in a
language the alien understands, of the time and place of the
proceedings, and the consequences of failing to appear for the
hearing. An alien who has been provided such notice and who
nevertheless fails to appear also shall be ineligible for
various immigration benefits, including voluntary departure,
cancellation of removal, adjustment of status, and registry,
for a period of 10 years.
The burden of proof shall be on the alien at the hearing
either to establish by clear and convincing evidence that he or
she is lawfully present pursuant to a prior lawful admission
or, in the case of an alien who has never been lawfully
admitted, to establish beyond a doubt that he or she is
entitled to be admitted. If the alien establishes that he or
she has been lawfully admitted, the burden of proof shifts to
the INS to establish by clear and convincing evidence that the
alien is deportable. Aliens are limited to a single motion to
reconsider and a single motion to reopen removal proceedings.
Section 304 also removes the requirement that the written
notice of hearing be provided in Spanish as well as English.
The increased administrative burdens on the INS imposed by this
requirement are not justified, especially in light of the fact
that many immigrants served such notices do not speak Spanish.
Section 304 also authorizes an immigration judge to enter an
order of removal stipulated to by the alien (or representative)
and the INS.
Section 304 also redefines the relief available to aliens
in removal proceedings. New limitations are placed on the
practice of ``voluntary departure,'' to ensure that aliens
granted this form of relief actually and timely depart the
United States. An alien who is removable may apply for
cancellation of removal if he or she has been a lawful
permanent resident for not less than 5 years and has not been
sentenced for 5 years due to commission of an aggravated
felony; if he or she is a battered spouse or child of a citizen
or lawful permanent resident and has been physically present
for 3 years; or if the alien has been physically present for
and has been a person of good moral character for 7 years
preceding the application. The time period for continuous
physical presence terminates on the date a person is served a
notice to appear for a removal proceeding or if the alien is
absent from the United States for an aggregate period in excess
of 180 days. There is an annual cap of 4,000 on cancellations
of removal, to be effective immediately, and to include the
cases of persons who are eligible for suspension of deportation
because they were served a notice of hearing prior to the
enactment of this bill.
Section 305 seeks to ensure that aliens with a final order
of removal under the streamlined procedures established in
section 304 are removed from the U.S. within a target period of
90 days from the entry of such order and, during that time, are
either detained or released on conditions that ensure they will
appear for removal.
These mandates represent a significant departure from
current law and practice, which often permit aliens who have
final orders of deportation to remain in the U.S. indefinitely.
Numerous factors are cited for this failure to deport:
insufficient detention space, lack of resources to apprehend
aliens for deportation, and archaic procedures which provide
advance notice to aliens of when they must report for
deportation--a practice charitably characterized as a ``run
letter.'' H.R. 2202 specifically addresses all of these
factors, by increasing detention space (including the use of
closed military facilities on a pilot basis), increasing the
number of interior enforcement personnel, including
specifically detention and deportation officers, and, in this
section, establishing procedures that will ensure that an order
of removal is no longer a dead letter, but results in an actual
physical removal of the alien.
Yet, perhaps the most critical factor in lax enforcement of
deportation orders is what happens--or, more precisely, does
not happen--when an immigration judge enters an order of
deportation. Unless the alien is currently under detention
(which is the exception, not the rule), the alien walks out of
court scot-free: the immigration judge imposes no bond
requirement, establishes no firm date for departure, and
obtains no assurance that the alien will be prepared to depart
when the INS is ready to remove him. With such lax procedures,
it should come as no surprise that a high percentage of aliens
abscond. As a result, the resources expended to identify,
apprehend, and provide a hearing to a deportable alien are all
too often wasted.
Under section 305, an alien must be detained during the 90-
day ``removal period,'' which commences when an order of
deportation is final. Since most aliens ordered deported do not
file appeals, this detention can ordinarily begin when the
order is entered. (Such detention, of course, would not prevent
the alien from filing an appeal, in which case the alien could
be released on bond.) If detention space is not available, the
alien may be released on bond and under conditions prescribed
by the Attorney General in order to ensure that the alien
appears for deportation. The Committee strongly recommends that
the INS and immigration judges be charged with the requirement
to impose conditions that will ensure the alien is available
for deportation when all proceedings are complete and travel
documents have been obtained. An alien under an order of
deportation, moreover, may not be granted work authorization
unless the alien cannot be removed because there is no country
willing to accept the alien or if the Attorney General
determines that deportation is contrary to the public interest.
The objective of section 305 is that the entry of an order
of removal be accompanied by specific requirements to ensure
that the alien will depart the U.S. No set of reforms in this
legislation is more important to establishing credibility in
enforcement against illegal immigration.
Section 306 preserves the right to appeal from a final
administrative order of removal (first issued by an immigration
judge, then reviewed by the Board of Immigration Appeals) to
one of the Federal circuit courts of appeals. The bill limits
rights in cases where the alien's right to relief is limited by
statute: arriving aliens who clearly have no right to enter the
U.S.; illegal aliens who also have committed aggravated
felonies; and aliens who have failed to appear for their
immigration hearings. Judicial review in such cases is limited
to whether the alien has been correctly identified as being
subject to expedited procedures for removal, and whether the
appropriate procedures have been followed.
Section 306 also limits the authority of Federal courts
other than the Supreme Court to enjoin the operation of the new
removal procedures established in this legislation. These
limitations do not preclude challenges to the new procedures,
but the procedures will remain in force while such lawsuits are
pending. In addition, courts may issue injunctive relief
pertaining to the case of an individual alien, and thus protect
against any immediate violation of rights. However, single
district courts or courts of appeal do not have authority to
enjoin procedures established by Congress to reform the process
of removing illegal aliens from the U.S.
Section 307 provides that aliens who are ordered removed or
granted voluntary departure and do not depart the U.S. on time
are subject to civil penalties and excludes them from most
immigration benefits. Members of terrorist organizations are
deemed inadmissible to the U.S., and alien terrorists are
ineligible for asylum or withholding of deportation. Arriving
aliens who are inadmissible on terrorist grounds are subjected
to an expedited removal procedure under the jurisdiction of the
Attorney General.
Subtitle B--Removal and Inadmissibility of Alien Terrorists
Subtitle B of Title III (sections 321 through 332) provides
that in cases where the use of normal removal proceedings would
risk national security, the deportation charges against
suspected alien terrorists may be adjudicated in special
procedures conducted before one of five Federal district court
judges specially appointed to serve in such cases by the Chief
Justice of the Supreme Court. The special hearings will be open
to the public but conducted to ensure the confidentiality of
classified national security information. Aliens have the right
to court-appointed attorneys, to confront adverse evidence, and
to present evidence. The judges may consider classified
evidence in camera, and provide a summary of such evidence to
the alien, unless providing the summary would cause harm to the
national security or to any person. Aliens may be detained in
most cases throughout the proceeding and expeditiously removed
after entry of an order of removal.
These special procedures are intended to address the rare
circumstance when the government is not able to establish the
deportability of an alien under section 241(a)(4)(D) of the INA
without recourse to evidence the disclosure of which would pose
a risk to the national security of the United States. They are
exclusively to be used in cases where the alien is deportable
under section 241(a)(4)(D). The Committee expects that these
procedures will be used infrequently, and requests that the
government will exercise utmost discretion in seeking to
initiate proceedings under Subtitle B. Moreover, with the
enactment of the provisions of Title I and Title II directed at
securing the nation's borders and preventing immigration-
related crimes, and the remaining provisions of Title III which
streamline the administrative removal process, the numbers of
cases in which these special deportation procedures must be
used hopefully will be further diminished.
These special procedures are designed to protect the
``fundamental requirement of due process[:] . . . the
opportunity to be heard `at a meaningful time and in a
meaningful manner.' '' 86 The Supreme Court has
acknowledged that `` `due process is flexible and calls for
such procedural protections as the particular situation
demands.' '' 87 The Court's decisions indicate that three
factors must be weighed in determining if the procedures to
which one is subjected meets the constitutional threshold.
\86\ Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (citing
Armstrong v. Manzo, 380 U.S. 545, 552 (1965); Grannis v. Ordean, 234
U.S. 385, 394 (1914)).
\87\ Mathews, 424 U.S. at 334 (quoting Morrissey v. Brewer, 408
U.S. 471, 481 (1972)).
[T]he private interest that will be affected by the
official action; second, the risk of an erroneous
deprivation of such interest through the procedures
used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the
government's interest, including the function involved
and the * * * burdens that the additional or substitute
procedural requirement would entail.88
\88\ Mathews, 424 U.S. at 335, 347.
These factors have been taken into full account in drafting
section 321.
First, section 321 recognizes that an alien present in the
U.S. has a constitutional liberty interest to remain in the
U.S., and that this liberty interest is most significant in the
case of a lawful permanent resident alien.
[I]t is clear that, in defining an alien's right to
due process, the Supreme Court is concerned with
whether he is a permanent resident. * * * A permanent
resident alien [has] a stake in the United States
substantial enough to command a higher level of
protection under the due process clause before he may
be deported. The result of such an action after all,
may be to separate him from family, friends, property,
and career, and to remit him to starting a new life in
a new land. * * * [E]ven a manifest national security
interest of the United States cannot support an
argument that [a permanent resident alien] is not
entitled, as a threshold matter, to protection under
the due process clause. Once across that threshold, the
calculus of just how much process is due involves a
consideration of the Government's interests in
dispensing with procedural safeguards.89
\89\ Rafeedie v. INS, 880 F.2d 506, 522 (D.C. Cir. 1989). See also
Landon v. Plasencia, 459 U.S. 21, 32 (1982) (``[O]nce an alien gains
admission to our country and begins to develop the ties that go with
permanent residence, his constitutional status changes accordingly.'');
Mathews, 424 U.S. at 333.
No alien, in particular a permanent resident alien, would
be subject to deportation without an opportunity to contest
that deportation. Even in the case where confidential
information may be used without disclosure to the alien,
section 321 provides protections adequate under the due process
clause of the Fifth and Fourteenth Amendment, by permitting, in
the case of a lawful permanent resident, a special attorney
representing the alien to review and contest the information.
Second, the risk of an erroneous deprivation of the liberty
interest is remote. The government's burden of proof, as in
regular deportation proceedings, is to establish by clear and
convincing evidence that the alien is deportable. This
determination, moreover, is to be made in the first instance by
a judge serving pursuant to Article III of the Constitution,
which enhances the due process provided to an alien terrorist
above that provided in regular deportation proceedings, in
which the presiding immigration judge is an employee of the
Department of Justice. Furthermore, the alien is entitled to be
represented by counsel at government expense, a privilege that
is not extended to aliens under Title II of the INA, which
stipulates that the alien's representation is to be at no
expense to the government. Finally, the determination is
subject to appellate review. As discussed in greater detail
below, the risk of error arising from in camera and ex parte
consideration of classified evidence is minimized through the
procedural safeguards limiting reliance on such evidence
without any disclosure to the alien.
Third, there can be no gainsaying the compelling nature of
the government's interest in the prompt removal of alien
terrorists from U.S. soil, or in protecting the ability of the
government to collect and rely upon confidential information
regarding alien terrorists who may be present in the U.S.
Piercing this provision's limited veil of secrecy over
classified evidence will clearly make it more difficult to
gather evidence against suspected terrorists and to convince
international sources that such information will be secure in
the hands of our government, and ultimately lead to alien
terrorists being able to remain in the U.S. to harm our
citizens and lawful residents, while the Government waits,
hoping that another ground for deportation is made available.
The most salient distinction between the procedures
constructed in section 321 and those normally available under
Title II of the INA is the provision for use of classified
information. All of the procedures and procedural protections
in section 321 flow from this fundamental policy decision: that
reliable and relevant classified information should be
available to be used to establish the deportability of an alien
terrorist. This policy in itself causes no constitutional
difficulty, and the protections against abuse of that policy by
the government are more than adequate to protect the
constitutional interests at stake.
The Supreme Court and lower federal courts have upheld the
authority of the INS to use classified information in the cases
of aliens who seek discretionary relief from deportation,
without disclosing such information to the applicant.90
Thus, the use of nondisclosed classified information to inform
a court's decision whether or not to order deportation has
precedent and is not unconstitutional on its face.
\90\ Jay v. Boyd, 351 U.S. 345, 358-60 (1956); Suciu v. INS, 755
F.2d 127, 128 (8th Cir. 1985)(per curiam). See also Naji v. Nelson, 113
F.R.D. 548, 551-552 (N.D. Ill. 1986).
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Furthermore, the clear intent of section 321 is that all
information used to support the charge of deportability will be
disclosed to the applicant. This intent is most clearly seen by
considering the substantive and procedural hurdles the
government must satisfy before confidential information may be
considered in camera as part of the record. First, in order to
even convene a special deportation proceeding, the government
must present a petition personally approved by the Attorney
General or the Deputy Attorney General to one of the federal
district court judges serving on the special deportation court.
Placing these proceedings before an Article III judge provides
such aliens an enhanced measure of due process that is not
accorded to other deportable aliens, whose cases are heard by
administrative judges under the direction of the Attorney
General.
Second, the proceeding cannot commence unless the judge
finds probable cause to believe that the alien has been
correctly identified, is a terrorist, and that the use of
normal deportation procedures under Title II of the INA would
pose a risk to national security.
Third, the Department of Justice has the burden to prove by
clear and convincing evidence that the alien is deportable.
Classified information may be presented in camera and ex parte.
However, a summary of such evidence sufficient to inform the
alien of the nature of the evidence and to permit the alien to
prepare a defense must be approved by the judge and provided to
the alien. If the judge does not believe the summary to be
adequate, and the government cannot correct the deficiencies,
the proceedings will be terminated.
Fourth, the only circumstance in which the consideration of
classified information in camera can proceed without providing
a summary to the alien is if the judge finds that the continued
presence of the alien in the U.S., or the provision of the
summary, would cause serious and irreparable harm to the
national security or death or serious bodily injury to any
person. This is, intentionally, a strict standard, designed to
emphasize the clear policy of this legislation that the alien
have appropriate notice of the evidence against him and an
opportunity to prepare and present a defense.
Fifth, as an additional protection, section 321 provides,
in the case of an alien lawfully admitted for permanent
residence, that confidential information may be disclosed to a
special attorney appointed for this purpose by the judge. The
attorney may not disclose such information to the alien or any
other party under pain of fine and imprisonment, but may
present all relevant arguments against the admissibility,
relevance, credibility, or probative value of the evidence.
As noted previously, the Constitution does not forbid the
use of classified information in rendering decisions on the
right of an alien to remain in the United States. The
procedures established in section 321 permit use of classified
information in deportation proceedings, while protecting to the
maximum extent possible consistent with the classified nature
of such information the ability of the alien to examine,
confront, and cross-examine such evidence. Any further
protection of the alien's rights in this regard would
eviscerate the ability of the government to rely upon such
information and protect its classified nature, an objective
that is grounded on national interests of the most compelling
nature.
Subtitle B also makes representatives and members of
organizations designated by the Secretary of State as terrorist
organizations inadmissible to the U.S. and ineligible for
asylum, withholding of deportation, suspension of deportation
(cancellation of removal), voluntary departure, and registry.
The objective of preventing terrorist aliens from entering
the U.S. is equally important to the national interest as the
removal of alien terrorists. On this question, the demands of
due process are negligible, and Congress is free to set
criteria for admission and screening procedures that it deems
to be in the national interest. ``Aliens seeking admission to
the United States cannot demand that their application for
entry be determined in a particular manner or by use of a
particular type of proceeding. For those aliens, the procedure
fixed by Congress is deemed to be due process of law.'' 91
The Supreme Court observed in Knauff v. Shaughnessy ``that an
initial entrant has no liberty (or any other) interest in
entering the United States, and thus has no constitutional
right to any process in that context; whatever Congress by
statute provides is obviously sufficient, so far as the
Constitution goes.'' 92 ``Our starting point, therefore,
is that an applicant for initial entry has no constitutionally
cognizable liberty interest in being permitted to enter the
United States.'' 93
\91\ Rafeedie v. INS, 880 F.2d 506, 513 (D.C. Cir. 1989) (citing
Knauff v. Shaughnessy, 338 U.S. 537 (1950)) (emphasis in original).
\92\ Rafeedie, 880 F.2d at 520.
\93\ Id.
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Under these provisions, an alien will be inadmissible if
the alien is a representative of a terrorist organization or a
member of an organization that the alien knew or should have
known was a terrorist organization. This distinction is
intended to ensure that aliens who are most active as
directors, officers, commanders, or spokespersons for terrorist
organizations are strictly barred from entering the U.S. An
alien who is merely a member of a terrorist organization will
be considered under a slightly less strict standard that
incorporates a scienter requirement that the alien knew or
should have known that the organization is terrorist in nature.
Thus, an alien innocent of involvement with or knowledge of
terrorist activity on the part of an organization of which he
or she was merely a member would not necessarily be
inadmissible to the U.S.
An organization will be considered ``terrorist'' for
purposes of these provisions only if it has been designated as
such by the Secretary of State after consultation with the
Attorney General, and after consultation with the Committees on
the Judiciary of the House of Representatives and the Senate.
Only foreign organizations and subsidiary foreign groups that
have engaged in, or are engaging in, terrorist activity (as
that term is currently defined in the INA) and whose acts pose
a threat to the national security of the United States, can be
so designated. The Secretary of State, in consultation with the
Attorney General, may remove any such designation once made.
The designation is subject to judicial review upon its being
made public and, by law, may be removed by Congress.
Subtitles C and D--Miscellaneous
The remainder of title III contains a number of
miscellaneous provisions, including a definition of
``stowaway;'' a clarification of the definition of
``conviction'' for immigration law purposes; a definition of
``immigration judge'' together with a salary schedule for the
position; the establishment of an ``Immigration Enforcement
Account'' for the deposit of civil penalties; an authorization
for use of retired Federal employees in the Institutional
Hearing Program; the setting of conditions for prisoner
transfer treaties with foreign states; amendments to the
criminal alien identification system; and provisions to protect
the confidentiality of battered women and children.
Title IV--Employer Sanctions and Verification
H.R. 2202 recognizes that the solution to the problems in
employer sanctions is twofold. First, the number of employment
eligibility documents employers are required to review must be
reduced. Currently, employees can submit one or more of 29
different documents. Title IV reduces this to six: a passport
or alien registration card or resident alien card, or a social
security card in combination with a driver's license or state
ID card.
More importantly, there must be an authoritative check of
the veracity of the documents provided by new employees. Such a
verification mechanism will be instituted on a pilot basis,
using existing databases of the SSA and the INS. Every person
in America authorized to work receives a social security
number. Aliens legally in this country (and many illegal
aliens) have alien identification numbers issued by the INS. If
a verification mechanism could compare the social security
(and, for a noncitizen, alien number) provided by new employees
against the existing databases, individuals presenting
fictitious numbers and counterfeit documents, or who are not
authorized to be employed, would be identified. A verification
system could ``prevent use of never-issued numbers, numbers
restricted to nonwork purposes, and numbers belonging to
deceased people.'' 94
\94\ Social Security Administration, Department of Health and Human
Services, A Social Security Number Validation System: Feasibility,
Costs, and Privacy Considerations 2 (1988) (hereinafter cited as Social
Security Number Validation System).
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Title IV will institute pilot projects testing this
verification mechanism in at least five of the seven states
with the highest estimated populations of illegal aliens. All
employers in such states having 4 or more employees will be
involved. The pilots will terminate no later than October 1,
1999. The mechanism cannot be expanded nationwide without
authorization by Congress.
The verification mechanism would work as follows: As under
current law, once an applicant has accepted a job offer, he or
she will present certain documents to the employer. The
employer, within three days of the hire, must examine the
document(s) to determine whether they reasonably appear on
their face(s) to be genuine and complete an I-9 form attesting
to this examination.
The employer will also have three days from the date of
hire (which can be before the date the new employee actually
reports to work) to make an inquiry by phone or other
electronic means to the confirmation office established to run
the mechanism. Additional time will be provided in the event
the confirmation office cannot respond to all inquiries. If the
new hire claims to be a citizen, the employer will transmit his
or her name and social security number. The confirmation office
will compare the name and social security number provided
against information contained in the Social Security
Administration database. If the new hire claims to be a non-
citizen, the employer will transmit his or her name, social
security number and alien identification number. The alien
number is needed despite the fact that all work authorized
aliens have social security numbers because (1) in some
instances a social security number will not have been issued by
the time of the verification attempt and (2) the SSA database
does not provide information on changes in work eligibility
status occurring after the number is issued. The confirmation
office will compare the name and social security number
provided against information contained in the SSA database and
will compare the name and alien number provided against
information contained in the INS database.
When the confirmation office ascertains that the new hire
is eligible to work, the operator will within three days so
inform the employer and provide a confirmation number. If the
confirmation office cannot confirm the work eligibility of the
new hire, it will within three days so inform the employer of a
tentative nonconfirmation and provide a tentative
nonconfirmation number. If the new hire wishes to contest this
finding, ``secondary verification'' will be undertaken.
Secondary verification is an expedited procedure set up to
confirm the validity of information contained in the government
databases and provided by the new hire. Under this process, the
new hire will typically contact or visit the SSA and/or INS to
see why the government records disagree with the information he
or she has provided. If the new hire requests secondary
verification, he or she cannot be fired on the basis of the
tentative nonconfirmation. The employee has 10 days to
reconcile the discrepancy. If the discrepancy is reconciled,
then confirmation of work eligibility and a confirmation number
is given to the employer by the end of this period. If the
discrepancy is not reconciled or the employee does not attempt
to reconcile the information, then final denial of confirmation
and a final nonconfirmation number will be given by the end of
this period; the employer must then dismiss the new hire as
being ineligible to work in the United States.95
\95\ The process under which discrepancies are investigated and
either reconciled or not reconciled is called ``secondary
verification.'' See notes 100-103 and accompanying text.
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Title IV provides protection to both employers and
employees. Employers will be shielded from liability for
actions they take in good faith reliance on information
provided by the confirmation mechanism. Employees who would not
have been dismissed from their jobs but for errors contained in
the databases or made by the verification mechanism will be
entitled to compensation through the Federal Tort Claims Act.
Title IV's verification mechanism will most likely reduce
any temptation to engage in employment discrimination based on
considerations of national origin. Currently, employers might
be tempted not to hire job applicants who look or sound
``foreign'' in order to protect themselves from being penalized
for hiring illegal aliens. After the verification mechanism is
implemented, employers will receive independent confirmation
that their new hires are work-authorized. The temptation to
worry--and to discriminate--will be greatly reduced. As to any
burden secondary verification may place on employers, it must
be remembered that verification can only take place after an
employee is offered a job. Thus, if an employer were to revoke
a job offer because secondary verification were required, the
employee would immediately know that illegal verification-
related discrimination had taken place and could file a
complaint with the Justice Department's Office of Special
Counsel.
The verification mechanism also does not present civil
liberties concerns. The system requires no new document, let
alone anything approaching a ``national ID'' card. It requires
no modification of existing identification documents. It
requires no new federal government database and entails the
collection by the federal government of no new data. It relies
on information that the SSA and the INS have been recording for
years. Employees' privacy is protected since the information
contained in the existing government databases cannot be
disseminated, under penalty of law to employers or anyone else.
Employers will merely be told yes (information provided by an
employee matches information contained in the databases and the
person is eligible to work), or that secondary verification is
required (the information indicates that the employee is not
authorized to work or that there is a discrepancy) and later,
whether secondary verification was or was not successful in
confirming the identity and work eligibility of the employee.
Verification mechanisms like that proposed by Title IV have
in fact been tested in recent years. In the late 1980's, the
Social Security Administration tested a system in which about
1,500 volunteer employers received confirmation of work
authorization of prospective employees and new hires by
telephoning Social Security and transmitting social security
numbers.96 Upon evaluation of the pilot, it was determined
that ``given sufficient leadtime and resources, a [social
security number] validation system using public telephone lines
could be developed.'' 97 Since 1992, the INS has been
testing a ``telephone verification system'' with first nine and
now 223 volunteer employers who check the eligibility to work
of new hires identifying themselves as aliens by contacting the
system through telephones and ``point-of-sale'' devices and
transmitting alien numbers.98
\96\ See Social Security Number Validation System.
\97\ Id. at 7.
\98\ Office of Information Resources Management, Records Systems
Division, SAVE Program Branch, Immigration and Naturalization Service,
Telephone Verification System (TVS) Pilot: Report on the Demonstration
Pilot-Phase 1 (1993) (hereinafter cited as Telephone Verification
System).
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Employers who took part in the first phase of the INS'
pilot program: (1) unanimously recommended that it be
implemented as a permanent program; (2) unanimously indicated
that they would be willing to pay for the service; (3)
indicated in 100 percent of the monthly survey responses that
overall procedures were beneficial; (4) indicated in 100
percent of the monthly survey responses that primary
verification was easy to use; (5) indicated in 99 percent of
the monthly survey responses that primary verification was
useful; and (6) indicated in 99 percent of the monthly survey
responses that secondary verification response was
satisfactory.99
\99\ Id. at 9-10, 16.
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Questions have been raised about the accuracy of data in
the SSA and INS databases, based on the apparently high rates
of secondary verification required in both the SAVE program
(Systematic Alien Verification for Entitlements) and the INS
and Social Security pilot projects testing
verification.100 The concern is misplaced. Secondary
verification is ordered whenever an employee or benefits
applicant provided information that does not match that in the
database. It typically involves a review of the files by the
applicable government agency and can take from a few days to a
few weeks. Secondary verification does not necessarily mean
database error; it is often the fault of the employee or the
applicant for mistakenly providing erroneous information or
deliberately providing fictitious information.101
\100\ The SAVE program, established by section 121 of IRCA,
requires state social service agencies to check alien eligibility for
federal benefits through an INS database. See Verification of
Eligibility for Employment and Benefits: Hearing Before the Subcomm. on
Immigration and Claims of the House Comm. on the Judiciary, 104th
Cong., 1st Sess. 36-37 (March 30, 1995) (Statement of Robert L. Bach,
Executive Associate Commissioner, Policy and Planning, Immigration and
Naturalization Service).
In FY 1994, the SAVE system secondary verification rate was 17
percent. See 1994 Commission Report at 74. The INS pilot project
registered a 28 percent secondary verification rate from April to
December 1993. See Telephone Verification System at 11. The Social
Security Administration pilot project (conducted from January 1987 to
October 1988) registered a 17 percent secondary verification rate. See
Social Security Number Validation System at 6.
\101\ For example, an inquiry to INS could require secondary
verification for any of the following reasons: (1) the INS database
correctly indicates the alien is not eligible to work; (2) the INS
database has no information on the alien because the alien has provided
a false alien number; (3) the alien gave the employer a different
spelling of his name from that in the INS database; (4) the INS has
been tardy in entering the immigrant's alien number into its database;
or (5) the INS database is in error. As part of the pilot program, the
INS must review and update its data in order to ``promote[] . . .
maximum accuracy and shall provide a process for the prompt correction
of erroneous information.'' Additionally, computer programs can be
designed to allow for common alternative spellings of names.
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In cases where the alien has assumed a fictitious identity
or is legally present but not authorized to work, secondary
verification will reveal that the system worked properly in
declining to provide employment eligibility confirmation. In
cases where the alien is eligible to work but provided
incorrect information or there was an error in the INS
database, secondary verification should result in confirmation
of employment eligibility. In the Social Security
Administration pilot, only 12 percent of individuals initially
denied confirmation bothered to contact the
Administration,102 indicating the other 88 percent were
probably not eligible to work to begin with. In the first phase
of the INS pilot, secondary verification confirmed
noneligibility to work 43 percent of the time.103
\102\ See A Social Security Number Validation System at appendix C.
\103\ Telephone Verification System at 12.
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The Principal Deputy Commissioner of the Social Security
Administration testified before the Subcommittee on Immigration
and Claims on June 29, 1995, that ``[o]ur information on name,
social security number, and so forth, so far as we know is
absolutely accurate.'' Asked whether he ``perceive[d] any
problem being able to identify whether there's an individual
with a particular social security number'', he responded in the
negative.104 The Executive Associate Commissioner for
Policy and Planning of the INS testified before the
Subcommittee on March 30, 1995, that the INS is pursuing
initiatives to ``reduce[] error and creat[e] a capacity for
resolving any errors which might now exist. The goal of these
improvements is to enable INS to provide timely and accurate
responses to verification requests.'' 105
\104\ H.R. 1915, the Immigration in the National Interest Act of
1995: Hearing Before the Subcomm. on Immigration and Claims of the
House Comm. on the Judiciary, 104th Cong., 1st Sess. (1995) (statement
of Lawrence H. Thompson).
\105\ Hearing: Verification of Eligibility for Employment and
Benefits, supra note 100, at 36 (statement of Robert L. Bach).
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Title V--Legal Immigration Reform
Title V reforms the legal immigration system of the United
States. Any alien who seeks to immigrate to the U.S. must be
admitted under one of these four categories: (1) family-
sponsored immigrants; employment-based immigrants; humanitarian
immigrants; and diversity immigrants. (Due to the complexity of
these provisions, detailed analysis and comment on some
provisions is reserved to the section-by-section analysis.)
Sections 501 through 504 establish worldwide levels for
family-sponsored (330,000), employment-based (135,000),
diversity (27,000) and humanitarian (70,000) immigrants.
Section 505 specifies that these worldwide levels are effective
only through FY 2005, by which time Congress must review and
reauthorize new legal immigration levels. Furthermore, the
review and reauthorization process is to take place every five
years thereafter.
Under sections 511 and 512, family-sponsored immigrants
are: (1) spouses and unmarried children under 21 of U.S.
citizens; (2) spouses and unmarried children under 21 of lawful
permanent residents; (3) parents of U.S. citizens; and (4)
dependent adult sons and daughters of U.S. citizens and lawful
permanent residents, who are under age 26, never-married, and
childless. Section 518 provides for the admission of disabled
adult sons and daughters as ``children.'' Section 501 sets an
approximate annual ceiling for family-sponsored immigrants at
330,000, allocated as follows: for nuclear family of U.S.
citizens, no annual limitation; for nuclear family of lawful
permanent residents, 85,000; for parents of U.S. citizens,
50,000; and for dependent adult sons and daughters, 10,000.
Section 553 provides that the current backlog of spouses and
children of permanent resident aliens is to be reduced by an
average of 110,000 per year (based on current estimates of the
backlog) over a five-year period.
These provisions will give highest priority in the
immigration system to unification of the nuclear family, and
shift the emphasis from chain migration of extended families to
preservation of the nuclear family, which should be a
cornerstone of our immigration policy. The spouses and minor
children of U.S. citizens will be admitted without any
numerical limits. The spouses and children of lawful permanent
residents will be the first family-preference category, and the
special backlog reduction provisions in section 553 will ensure
that the backlog in this category is eliminated. The category
should then be sufficient to meet current demand.
Section 512 also requires that the parents of citizens
being sponsored as immigrants must have insurance to cover
their health care costs and potential long-term care needs.
This requirement is imposed because of substantial evidence
that many immigrant parents come to the U.S. to take advantage
of welfare benefits for which they have not contributed. The
number of immigrants receiving Supplemental Security Income
(SSI) has risen 580 percent during the past twelve years.
Impoverished immigrant parents also become eligible for
Medicaid, which provides health care virtually without cost. In
many cases, sponsoring children abandon financial
responsibility for their parents just so that they can be
eligible for these benefits.
Requiring the purchase of health insurance and long-term
care insurance will ensure that the children who sponsor their
parents do not incur obligations that they cannot meet, and
protect American taxpayers from footing the bill for the health
care costs of immigrants who have not contributed to the
system.
Under section 513, employment-based immigrants are: (1)
aliens with extraordinary ability (visas not to exceed 15,000);
(2) aliens who are outstanding professors and researchers, or
who are multinational executives and managers (visas not to
exceed 30,000, plus unused visas from category (1)); (3) aliens
who are professionals with advanced degrees, and aliens of
exceptional ability (30,000, plus unused visas from previous
categories); (4) professionals and skilled immigrants, who are
either professionals with a baccalaureate degree and experience
or skilled workers with training and work experience (45,000
visas, plus unused visas from previous categories); (5)
investor immigrants (10,000 visas), who invest at least $1
million in a U.S. company that employs at least 10 workers
(with a pilot program through 1998 allowing for a $500,000
investment and the hiring of 5 workers); and (6) special
immigrants (5,000 visas). Section 502 sets the annual limit for
employment-based immigrants at 135,000.
Experience requirements are increased for immigrants in
category (4): skilled workers are required to have 4 years
experience, and professionals with baccalaureate degrees, 2
years. (These new requirements refer to the background of the
alien as of the time the immigrant petition is filed, and not
to the requirements of the job, which must, as under current
law, require at least 2 years of training or experience for a
skilled worker and a baccalaureate degree for a professional
position.) This experience (in the relevant profession or
field) can be obtained with the petitioning employer, including
(but not necessarily) during a period of lawful admission as a
nonimmigrant worker, such as an H-1B, but cannot be obtained
during a period of illegal residence in the U.S. The ``national
interest'' waiver for immigrants in category (3) is also
reformed, to prevent current abuses in the granting of such
waivers. The labor certification requirement can be waived for
category (3) if the alien's particular skills or education are
uniquely necessary and substantially benefit the national
interest in several specifically-defined areas, including
national security, national defense, the provision of health
care or other services to low income Americans, and the
development of new technologies.
Section 514 reforms the diversity immigrant program
established in the Immigration Act of 1990. The revised program
will allow admission of 27,000 immigrants each year from a
maximum of 10 countries designated as ``low admission states''
within each of six regions. To be eligible for a diversity
visa, the alien must have a verified job offer in the U.S., a
high school education or its equivalent, and a minimum of two
years experience in an occupation that requires at least two
years of training. No alien who at the time of application or
at any time during the previous five years has been illegally
present in the U.S. is eligible to receive a diversity visa.
Sections 521 and 524 establish categories for refugees and
other humanitarian immigrants. The annual level for such
immigrants is 70,000 (95,000 in 1997), consisting of: refugees,
50,000 (75,000 in 1997), unless Congress sets a higher number
by law, or the President declares an emergency; and other
humanitarian immigrants, 10,000. Section 521 also reforms the
refugee consultation process by requiring that the annual
consultations take place by July 1. The refugee provisions in
section 521 accomplish several important goals. First, they
ensure the availability of a minimum number of visas sufficient
to meet the State Department's anticipated demand for refugee
resettlement. Second, they will involve Congress more directly
in decisions to set refugee policy, by setting a reasonable
deadline for the consultation process and requiring legislation
to raise the refugee target except in emergency situations.
Third, they preserve flexibility by permitting the President to
admit additional refugees in the case of an emergency (not
merely an ``unforeseen'' emergency, as under current law.)
Section 521 provides that the number of annual refugee
admissions designated by the President may not exceed 75,000 in
fiscal year 1997 or 50,000 in any succeeding fiscal year
thereafter. These levels may be exceeded only if: (1) Congress
provides by law for a higher number; or (2) the President
declares the existence of an emergency which requires
additional refugee admissions. The current requirement that an
emergency be ``unforeseen'' for the purpose of admitting
refugees outside of the set limits for a particular fiscal year
is deleted.
By deleting the ``unforeseen'' requirement, the President
will have more flexibility in increasing the refugee numbers
when circumstances indicate that a true emergency has created
an immediate need to process and resettle additional refugees.
This change does not obviate the need for consultation between
the President and the House and Senate Committees on the
Judiciary.
Additionally, this section amends section 207(d)(1) of the
INA to require the President to report to the House and Senate
Judiciary Committees by June 1 of the preceding fiscal year on
the number and allocation of refugee admissions for the
subsequent fiscal year, and requires the series of discussions
on this report under subsection (e) to occur by July 1.
The category for humanitarian visas in section 524 is
designed to meet the need for a flexible, transparent category
that will be available for any specific situation in which
admission of an alien is of special humanitarian concern to the
United States. This category is specifically intended to
replace the need for special admission categories tailored to
special interests, and particularly to end the practice of
admitting aliens on a permanent basis through grants of parole
under section 212(d)(5).
The Attorney General may use this discretionary category,
for example, to admit specific individuals of humanitarian
concern to the U.S. who have assisted the government in past
legitimate military operations. In many cases, these
individuals do not qualify as refugees and can only come to the
country if the Attorney General chooses to grant parole on a
long-term basis. As noted earlier, however, parole was intended
to be and should be temporary and is not designed to admit
aliens who do not otherwise qualify for admission to the U.S.
The humanitarian visa category ensures, therefore, that aliens
in these types of situations, and others can be admitted to the
U.S. on a case-by-case basis without improper use of her
statutorily-prescribed parole authority.
Section 522 amends the definition of ``refugee'' to extend
protection to aliens who have been subjected (or have a well-
founded fear of being subjected) to coercive abortion or
sterilization under a government-sanctioned program of coercive
family planning, or has been persecuted (or has a well-founded
fear of being persecuted) for refusal or resistance to such a
program. There is much confusion about this provision, and this
should be clarified. The primary intent of section 522 is to
overturn several decisions of the Board of Immigration Appeals,
principally Matter of Chang and Matter of G-.106 These
decisions, which are binding on all immigration judges and INS
asylum and refugee officers, hold that a person who has been
compelled to undergo an abortion or sterilization, or has been
severely punished for refusal to submit to such a procedure,
cannot be eligible on that basis for refugee or asylee status
unless the alien was singled out for such treatment on account
of factors such as religious belief or political opinion.
\106\ Matter of Chang, Int. Dec. 3107 (BIA, 1989); Matter of G-,
Int. Dec. 3215 (1993). See also Zheng v. INS, 44 F.3d 379 (5th Cir.
1995); Chen v. Carroll, 1995 WL 88164 (4th Cir. 1995).
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The Committee believes that the BIA's rationale for these
opinions--that policies of coercive family planning are ``laws
of general application'' motivated by concerns over population
growth, and thus are not ``persecutory''--is unduly
restrictive. The BIA opinion effectively precludes from
protection persons who have been submitted to undeniable and
grotesque violations of fundamental human rights. As stated by
First Lady Hilary Clinton in her September 1995 address to the
U.N. Conference on Women in Beijing, policies of coercive
family planning violate human rights and must be resisted.
However, the Administration, which has the authority to
overrule the BIA decisions through regulation or through
decision of the Attorney General, has not done so. Nor has it
offered adequate relief to persons who have undergone such
coercion.
In the People's Republic of China, some women with
``unauthorized'' second or third pregnancies are subjected to
involuntary abortions, often late in their pregnancies. Both
men and women who have met their ``quota'' for children may be
forcibly sterilized. Couples with unauthorized children are
subjected to excessive fines, and sometimes their homes and
possessions are destroyed. These measures are carried out by
government agents, at the regional or local level.
The United States should not deny protection to persons
subjected to such treatment. Nor, however, should the U.S.
grant protection to anyone who presents such a claim. Nothing
in section 522 is intended to lower the evidentiary burden of
proof for any alien, no matter how serious the nature of the
claim. The Committee emphasizes that the burden of proof
remains on the applicant, as in every other case, to establish
by credible evidence that he or she has been subject to
persecution--in this case, to coercive abortion or
sterilization--or has a well-founded fear of such treatment.
The Committee is aware that asylum claims based on coercive
family planning are often made by entire groups of smuggled
aliens, thus suggesting that at least some of the claims, if
not the majority, have been ``coached.'' Section 522 is not
intended to protect persons who have not actually been
subjected to coercive measures or specifically threatened with
such measures, but merely speculate that they will be so
mistreated at some point in the future.
Determining the credibility of the applicant and whether
the actual or threatened harm rises to the level of persecution
is a difficult and complex task, but no more so in the case of
claims based on coercive family planning than in cases based on
other factual situations. Asylum officers and immigration
judges are capable of making such judgments.
Finally, section 522 limits the number of refugee
admissions and asylum grants on the basis of coercive family
planning claims to 1,000 in any given fiscal year.
Section 523 restricts the use of parole authority to allow
aliens to enter the U.S. to specific reasons that are strictly
in the public interest or are matters of urgent humanitarian
concern, such as for the prosecution of an alien, to obtain an
alien's testimony in a criminal proceeding, or to permit an
alien to visit a dying relative. This section is intended to
end the use of parole authority to create an ad hoc immigration
policy or to supplement current immigration categories without
Congressional approval. Section 524, establishing a category
for humanitarian immigrants, is intended to allow the admission
of immigrants that may currently be admitted through improper
application of the parole authority, but to place such
admissions within the overall immigration ceilings established
by Congress.
Section 531 reforms the asylum process, requiring that
applications be filed within 30 days of arrival in the U.S.,
unless circumstances in the alien's home country or in the
alien's personal circumstances that relate to the alien's
eligibility for asylum have fundamentally changed. This section
also provides that an application not be accepted if the alien
may be removed to a safe third country in which the alien would
have access to a fair asylum process, unless the Attorney
General finds that it is in the public interest for the alien
to receive asylum in the United States, and that asylum
applications be adjudicated on a specific timetable that will
result in completion of most cases within 6 months of filing.
This report has previously discussed the need for such
measures to supplement the administrative reforms of the asylum
process that were effective in January 1995. This section is
intended to build upon the success of such provisions in
streamlining the asylum process, while ensuring that no alien
will be returned to persecution.
There has been some question whether the imposition of a
time deadline for filing an asylum application will close off
from protection those aliens who miss the deadline. Section 531
includes an exception from the deadline in cases where there
are fundamentally changed circumstances affecting eligibility
for asylum. In cases where this exception does not apply, and
the alien would be subject to persecution if returned to his or
her home country, the Committee recognizes that some provision
for protection must be made.
Even in its present form, however, H.R. 2202 does not
require the deportation of an alien to a place where he would
face persecution. The alien may designate any country for
deportation, and deportation to such country is contingent upon
acceptance of the alien by that country. Otherwise-qualified
applicants who have missed the deadline may be eligible for a
humanitarian visa, as established in section 524. This, the
Committee believes, could be applied by the Attorney General to
satisfy any international obligations of the U.S. regarding the
protection of those who would be subject to persecution if
returned to their homelands.
Finally, the Committee believes that the interest in filing
a timely application supersedes the interest in filing a
comprehensive application. The Committee is aware that current
INS regulations require a relatively long and detailed
application for asylum. While it may be important for an
applicant to be able to commit the details of his or her case
to writing prior to an interview with an asylum officer, it is
more important that the case be commenced as soon as possible
after the alien's arrival in the U.S. Thus, the Committee
encourages the INS to adopt a simpler form of application for
asylum, with generous allowance for amendment. Furthermore, the
INS should take affirmative steps to notify the public of the
30-day filing requirement.
Title VI--Eligibility for Benefits and Sponsorship
This title is designed to continue the long-standing
principle in U.S. immigration policy that immigrants be self-
reliant and not depend on the American taxpayer for financial
support. Current eligibility rules, unenforceable financial
support agreements, and poorly-defined public charge provisions
have undermined the tradition of self-sufficiency among the
immigrant community. As a result, the cost to the American
taxpayer of providing public benefits to immigrants has been in
the tens of billions of dollars every year. Title VI specifies
that illegal aliens are not eligible for most public benefits,
makes enforceable the grounds for denying entry or removing
aliens who are or are likely to become public charges, and
makes those who agree to sponsor immigrants legally responsible
to support them.
Section 601 makes illegal aliens ineligible for means-
tested public benefits and government contracts. Federal
agencies must require that applicants show one of six documents
to prove eligibility to receive benefits, and State agencies
are authorized to require documentation of eligibility to
receive benefits. This section also requires verification of
citizenship or legal resident status for the receipt of any
Federal student financial assistance.
Section 621 strengthens the grounds for inadmissibility as
a public charge by stating that a family-sponsored immigrant or
a nonimmigrant is inadmissible if the alien cannot demonstrate
that the alien's age, health, family status, education, skills,
affidavit of support, or a combination thereof make it unlikely
that the alien will become a public charge. An employment-based
immigrant, other than an immigrant of extraordinary ability, is
inadmissible unless the immigrant has employment at the time of
immigration. An employment-sponsored immigrant working in a
business owned by a member of his family must obtain a
affidavit of support.
Section 622 strengthens the grounds for removal as a public
charge by extending the time period within which such removal
may occur to seven years from the date of admission, provided
the alien's public charge status stems from causes arising
before admission. An alien is considered to be a public charge
if the alien receives benefits under Supplemental Security
Income, Aid to Families with Dependent Children, Medicaid, Food
Stamps, State general assistance or Federal Housing Assistance
for an aggregate of twelve months within the seven-year period.
More flexible standards are established for battered spouses
and children.
Section 631 specifies that a sponsor's income and
resources are available to the sponsored alien for the purpose
of qualifying for public benefits. A legally binding affidavit
of support is created for those who wish to sponsor immigrants
into the U.S. The length of time for deeming income and for
which the sponsorship contract is enforceable is as follows:
for parents of U.S. citizens, through the time the parent
becomes a citizen; for spouses of U.S. citizens and lawful
permanent residents, until the earlier of seven years after the
date the spouse becomes a permanent resident or the date the
spouse becomes a citizen; and for minor children, until the
child reaches 21 years of age. The deeming period may end
earlier if the alien works long enough to qualify for social
security retirement income.
Section 632 requires that a sponsor must be the individual
who is petitioning for the alien's admission (or an individual
who accepts joint and several liability with the petitioner
under the affidavit of sponsorship); be a U.S. citizen or
permanent resident; be at least 18 years old; live in the U.S.;
and demonstrate the means to maintain an annual income equal to
at least 200 percent of the poverty level (unless the sponsor
is on active-duty status in the U.S. military, in which case
the requirement is 100 percent) for the individual and the
sponsored alien. Certain provisions also were modified to
provide greater flexibility to grant benefits to battered
spouses and children.
Title VII--Facilitation of Legal Entry
Immigration reform not only must address the challenges of
illegal and legal immigration, but also must ensure that U.S.
ports of entry are capable of receiving the hundreds of
millions of foreign visitors who seek legitimate entry into our
country each year. Enhancing our enforcement capability at
land, air, and sea ports must go hand in hand with improving
the service functions at such ports. This is important first
because of the economic benefits brought to this country by
international commerce and travel, and second because smooth
functioning of our ports will enable enforcement resources to
be strategically deployed in order to maximize the prevention
of unauthorized entries into the U.S. In addition, curbing the
number of people who attempt to enter on fraudulent documents
should enable further streamlining of procedures for legitimate
travellers.
Section 701 requires an increase in both INS and Customs
Service inspectors at land borders sufficient to ensure full
staffing at peak crossing hours in all travel lanes, and that
inspectors be deployed to areas with the greatest need. Section
702 authorizes further expansion of the commuter lane pilot
programs now being operated successfully at several land border
crossing points. These programs permit frequent crossers who
meet eligibility criteria to travel through express lanes that
verify identity through scanners and other advanced technology.
Special care must be taken to thoroughly screen applicants for
special programs (such as commuter lane pilot programs and
border crossing cards) allowing, ultimately, freer border
crossings. Once an alien is granted this special treatment,
further monitoring for abuse of the special benefits is
difficult.
Section 703 adds to the INA a new section 235A, mandating
the operation of pre-inspection stations at 5 of the 10 foreign
airports having the greatest number of departures for the U.S.
The Committee believes that pre-inspection services should, to
the greatest extent possible, result in the clearance of all
passengers permitted to board to be admitted to the U.S. The
converse, of course, is that passengers refused permission to
board, on the ground that they do not have valid documents to
be admitted or are otherwise inadmissible, will be prevented
from even reaching a U.S. port of entry, thus reducing the
burden on INS inspection facilities and the likelihood that
unauthorized aliens will enter the U.S. The Committee
encourages the INS to work closely with the Customs Service and
the Department of State in the planning and operation of such
pre-inspection stations, particularly in seeing to it that the
stations have access to all relevant information in government
databases regarding persons applying for admission to the U.S.
Section 704, which requires the INS to expend funds from
the Immigration User Fee Account to train airline personnel in
the detection of fraudulent documents, and imposes sanctions
upon airlines for failure to comply with regulations regarding
the detection of such documents, is intended to provide air
carriers with the means and the incentive to cooperate with the
U.S. government in ensuring that only persons with legitimate
admission documents are permitted to board aircraft bound for
the U.S.
The Committee is concerned that disputes between air
carriers and the INS regarding the treatment of certain small
classes of illegal aliens may have led to a less than
cooperative approach on the urgent goal of preventing the
boarding of international passengers with no right to be
admitted to the U.S. Communications from the INS and the air
carriers during the course of the Committee's considerations of
this bill confirm this impression. The mandates contained in
this section are equitable, requiring the government and the
carriers to fully bear their respective responsibilities on
this issue. The Committee believes that optimum implementation
of these mandates will occur only through a spirit of
cooperation greater than that displayed in recent years. These
mandates are clear: the INS must issue regulations within 90
days of enactment of this legislation, and must provide
substantial funds for the training of personnel. The carriers
must in turn comply with these regulations, at the risk of
losing their right to transport aliens to the U.S.
Title VIII--Skilled Nonimmigrants (H-1B)
Section 806 is designed to end the abuses which have
recently plagued the H-1B program while providing regulatory
relief for employers who do not abuse the program. Section 806
requires an employer to attest that it will not fire and
replace an American worker with an H-1B alien unless the
company is willing to pay the H-1B 110 percent of what the
fired American was making. The time period in which an employer
is subject to this requirement is consistent with the United
States' international obligations under the General Agreement
on Trade in Services. This provision is intended to curtail any
possible incentive which may exist currently for employers to
lay off Americans because of the lure of cheap foreign labor.
If an employer is willing to pay an H-1B a premium wage, then
this is evidence that the H-1B is being recruited for reasons
of superior skills.
In addition, penalties for violations of the H-1B
provisions will be enhanced to provide an additional
disincentive to abuse. Among the changes, maximum civil fines
are increased fivefold and the period in which a company cannot
get visa petitions approved for foreign workers can be extended
to a permanent ban.
The employers most prone to abuse are ``H-1B dependent
employers''--a significant percentage of whose work forces are
composed of H-1Bs. The H-1B program is designed to ameliorate
temporary shortages of specialized skills in the American work
force. While it is conceivable that a company would need to
stock its workforce predominantly with H-1Bs because of such
shortages, this is unlikely. In many cases, the fact that firms
are H-1B dependent cannot be attributed to any domestic skills
shortage. It is evident that large pools of H-1Bs are being
created to do precisely the work of--and often to replace--
widely available American workers, presumably for cost-saving
reasons. American workers can be replaced through direct hiring
of H-1Bs, through utilization of a job contractor that is
itself largely composed of H-1Bs, or through subcontracting
work to a firm largely composed of H-1Bs.
There is nothing inherently wrong with a firm relying on
subcontracting or outsourcing, i.e., having another company
produce a product or provide a service which it used to produce
or provide on its own. Such reliance can generate great
efficiencies. However, this practice is suspect when it is
accomplished through the utilization of an H-1B dependent firm.
Extensive reliance on foreign labor for cost savings alone (and
not to provide needed, hard-to-find skills) is not in the
nation's best interests.
Neither is job contracting inherently wrong. There exist
many job contractors which perform valuable services for the
economy and do not rely inordinately on H-1B aliens. However,
H-1B dependent job contractors are suspect. The service they
provide is often access to a pool of cut rate foreign labor. In
addition, the employer-job contractor relationship is one which
can defeat the protection of the H-1B attestation system. As
discussed earlier, the complaint-driven system relies on notice
to impacted employees. When a job contractor places workers at
another firm, it is imperative that the workers at the other
firm are given notice.
Section 806 provides regulatory relief to firms which are
non-H-1B dependent, while maintaining strict regulatory
standards for H-1B dependent employers. Certain of the January
1995 Department of Labor regulations, described in an earlier
section of this report, do have beneficial effects. However,
the Committee believes that the good which the regulations do
is outweighed by the burden they place on non-H-1B dependent
employers. Therefore, the regulations are kept effective only
as to H-1B dependent employers.
Except for the smallest employers, the bill sets the
percentage test for H-1B dependence at 15 or 20 percent
(depending on the size of the firm), which ensures that
mainstream, legitimate users of H-1Bs are classified as non-
dependent. About ten percent of the instructional faculties of
major universities are composed of H-1Bs. About one percent of
the workforces at major computer corporations are so composed.
The bill recognizes, however, that certain employers have
become dependent on H-1B aliens not out of an abusive intent,
but because they had legitimate business reasons and there
never was any prohibition or penalty for doing such. Therefore,
the bill provides employers which are H-1B dependent a
transition period (lasting until five years after enactment)
during which they will be accorded probationary status as non-
H-1B dependent employers if they utilize a pre-approved plan
and systematically reduce, to the satisfaction of the Secretary
of Labor, their reliance on H-1B aliens.
The regulatory relief provided to non-H-1B dependent
employers is as follows:
(1) A non-H-1B dependent employer does not have to post
notice at worksites visited by an H-1B alien which are in the
area of employment listed on the labor condition application
(LCA) but not themselves listed. As discussed previously, the
regulation has an important goal, especially in the context of
job contractors. But the Committee believes that only with
those employers where the potential for abuse is greatest--H-1B
dependent employers--is the burden justified.
(2) A non-H-1B dependent employer is not required to file
additional LCAs when sending H-1B aliens to areas of employment
not listed in their initial LCAs, so long as the H-1Bs'
principal places of employment have not changed to non-listed
areas. Again, this regulation has an important purpose, but
because of its burden, it is best reserved for H-1B dependent
employers, where the potential for abuse is greatest.
(3) A non-H-1B dependent employer does not have to pay per
diem and transportation costs at any specified rates when
sending H-1Bs to areas of employment not listed in their labor
condition applications.
(4) The Secretary of Labor can conduct an investigation of
a non-H-1B dependent employer only after receiving a complaint
filed by an aggrieved party outside of the Department of Labor.
Self-directed investigations will prove to be a better use of
limited investigatory resources when focused on those employers
where the potential for abuse is highest.
Additionally, no employer shall be required to pay its non-
H-1B workers according to an objective wage scale.
The bill requires that when an H-1B dependent ``job
contractor'' (meaning an employer who places an employee with
another employer where the employee performs duties at
worksites owned, operated, or controlled by the other employer
and there are indicia of an employment relationship between the
employee and the other employer) places an H-1B alien at
another firm, it attest that either the other firm has executed
an attestation stating that the other firm has not and will not
lay off an American employee and replace him or her with an H-
1B alien for the time periods specified in the General
Agreement on Trade in Services, or the job contractor will pay
the H-1B at 110 percent of the level of the laid off employee.
The other employer will be subject to the section 212(n)(2)
penalties for violating its attestation. This provision is
designed to make sure that employers do not evade the no-layoff
provision by simply firing American workers and replacing them
with H-1Bs who are technically employees of job contractors.
Some businesses may likely refuse to sign such an attestation
with potentially severe legal consequences for noncompliance
just for the privilege of doing business with a job contractor.
It is for this reason that the additional attestation is only
required with an H-1B dependent job contractor, where the
provision, in this limited form, is necessary to prevent
wholesale abuse.
Under current regulations, a safe harbor (i.e., protection
from liability) exists for prevailing wage determinations made
by a State Employment Security Agency:
In all situations where the employer obtains the
prevailing wage determination from the SESA, the
Department will accept that prevailing wage
determination as correct and will not question its
validity where the employer has maintained a copy of
the SESA prevailing wage determination. A complaint
alleging inaccuracy of a SESA prevailing wage
determination, in such cases, will not be
investigated.107
\107\ 70 CFR 655.731(a)(2)(iii)(A)(3) (1995).
If a complaint is filed and the employer has relied upon a
non-SESA source to determine the prevailing wage, the Labor
Department may find that an incorrect determination was made
and that penalties and back wages may be assessed against the
employer.108 Given the long delays sometimes associated
with obtaining SESA determinations and the high quality of many
alternative sources of prevailing wage data, the Committee
finds it appropriate to enlarge the current safe harbor.
Section 806 provides that if the Secretary of Labor does not
issue a written rejection of an alternate source prevailing
wage determination submitted by an employer within 45 days,
then that wage shall be deemed to satisfy the requirement of
section 212(n)(1)(A)(i)(II) of the Immigration and Nationality
Act. The safe harbor will have an effect identical to that of
the quoted language above.
\108\ 20 CFR 655.731(d) (1995).
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Similarly, the bill provides protection from liability for
employers in determining the actual wage paid to workers
similarly employed as the H-1B alien. Certain large employers
who have regularized compensation systems certified by the
Secretary of Labor will be presumed to be paying the actual
wage (assuming it is higher than the prevailing wage) to H-1Bs
if they pay the H-1Bs in accordance with such systems. This
provision allows employers with sophisticated pay systems
relief from constructing artificial ``actual'' wages to the
Secretary of Labor's satisfaction for the sake of compliance
with the H-1B regulations.
Last, section 806 partially overturns the Department of
Labor Board of Alien Labor Certification Appeals' decision in
Hathaway Children's Services.109 In Hathaway, BALCA ruled
that in determining whether a non-profit organization or other
entity having ``special circumstances'' was offering the
prevailing wage to a prospective employment-based immigrant
(and presumably for H-1Bs), the Department of Labor must look
to the wage levels for jobs in the overall job market. Hathaway
itself reversed BALCA's ruling in Tuskegee University, 110
which stated that ``it is not only the job titles, but the
nature of the business or institution where the jobs are
located--for example, public or private, secular or religious,
profit or non-profit, multi-national corporation or individual
proprietorship--which must be evaluated in determining whether
the jobs are `substantially comparable' '' 111 for
purposes of determining the prevailing wage.
\109\ 91-INA-388 (1994).
\110\ 5 Bender's Immigr. L. and Proc. Rep. B3-172 (87-INA-561,
1988).
\111\ Id. at B3-176.
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Were Hathaway to stand, the Committee believes it would
have a severely detrimental impact on our research universities
and institutions, which must obtain H-1B visas for temporary
workers or labor certification for permanent immigrants to
place foreign researchers and post-doctoral students in their
research labs. University researchers, foreign or American,
typically work for much less than industry scale. If
universities were required to pay industry-standard wages for
these individuals, they would in effect be prevented from
utilizing foreign scientific talent. Hathaway fails to
recognize the intangible benefits that one receives from
working at a university rather than in industry. This benefit
often makes salary a secondary factor in an employee's decision
whether to work in academia. Thus, the bill provides that jobs
at universities and scientific research institutions be only
compared with jobs at similar entities when determining the
prevailing wage.
Hearings
The Committee's Subcommittee on Immigration and Claims held
one day of hearings on H.R. 1915 on June 29, 1995. Testimony
was received from 19 witnesses, representing 19 organizations,
with additional material submitted by 5 individuals and
organizations.
Committee Consideration
On July 20, 1995, the Subcommittee on Immigration and
Claims met in open session and ordered reported the bill H.R.
1915, as amended and as a clean bill, by a voice vote, a quorum
being present. The clean bill was introduced on August 4, 1995,
as H.R. 2202. On October 24, 1995, the Committee met in open
session and ordered reported the bill H.R. 2202 with an
amendment by a recorded vote of 23 to 10, a quorum being
present.
Vote of the Committee
Voice votes
Sixty-four amendments were adopted by a voice vote. These
were: (1) An amendment by Mr. Smith of Texas to extend the
effective date for new border crossing card requirements; (2)
an amendment by Mr. Canady to provide specific penalties for
making false claims of citizenship when registering to vote or
voting; (3A) an amendment by Mr. Goodlatte to strike section
212(i) of the Immigration and Nationality Act, thus eliminating
waivers of exclusion for aliens who have previously committed
misrepresentations to immigration officials; (3B) an amendment
by Mr. Berman to restore a modified version of the waiver under
section 212(i) of the INA; (4) an amendment by Mr. Berman to
provide an exception for aliens with work authorization and an
exception for aliens under family unity protection to the 10
year bar on admission for aliens residing illegally in the
United States for greater than 1 year; (5) an amendment by Mr.
Smith of Texas to extend expedited removal procedures to aliens
interdicted at sea and brought to the United States; (6) an
amendment by Mr. Smith of Texas to preclude any private right
of action arising out of mandates imposed on government
officials under section 305; (7) an amendment by Mr. Smith of
Texas to specify procedures for the detention and removal of
stowaways; (8) an amendment by Mr. Smith of Texas to provide
that a stowaway's application for asylum shall be considered
under procedures for expedited removal; (9) an amendment by Mr.
Bryant of Tennessee to the definition of a stowaway; (10) an
amendment by Mr. Bryant of Tennessee to strike increased
penalties on airlines; (11) an amendment by Mr. McCollum to the
definition of immigration judge and to specify compensation for
immigration judges; (12) an amendment by Mr. Gallegly to strike
amended requirements regarding transit without visa aliens;
(13) an amendment by Mr. Gallegly to extend federal
reimbursement of state expenses for incarceration to cases
involving aliens with two or more misdemeanor convictions, and
to include certain pre-trial detention; (14) an amendment by
Mr. Smith of Texas to exempt alien women and children who have
been battered or subject to extreme cruelty from being
inadmissible to the United States on the ground that they are
present without being lawfully admitted; (15) an amendment by
Mrs. Schroeder to protect the confidentiality of claims for
relief by a person who has been battered or subject to extreme
cruelty, and to prevent the use of information provided solely
by an abusive spouse or family member to make a determination
of admissibility or deportability; (16) an amendment by Mr.
Goodlatte to state that a returning lawful permanent resident
shall be regarded as applying for admission if the alien
attempts to enter the United States at a time or place other
than as designated by an immigration officer or has not been
admitted after inspection and authorization by an immigration
officer; (17) an amendment by Mr. Goodlatte to state that, for
purposes of the 10-year exclusion for aliens who have been
unlawfully present for more than one year, no time in which an
alien is under the age of 18 (original text specified age 21)
shall be taken into account in determining the period of
unlawful presence; (18) an amendment by Mr. Gallegly to provide
that prisoner transfer treaties shall allow the Federal
Government and States to keep original prison sentences in
force in the event that transferred prisoners return to the
United States prior to the completion of their prison terms; to
provide that independent verification shall include the length
of time a transferred alien is actually incarcerated in the
foreign country; and to require that upon the request of a
governor, the INS shall assist State courts in identifying
aliens unlawfully present in the United States pending criminal
prosecution; (19) an amendment by Mr. Frank to provide for
judicial review of a determination that an alien is a
representative of a terrorist organization; (20) an amendment
by Mr. Berman to strike the requirement that an alien have been
lawfully admitted to the United States to be eligible for
cancellation of removal; to provide, for purposes of meeting
the seven-year continuous physical presence requirement for
cancellation of removal, that an alien who has departed the
United States for 180 days shall not be considered to have
broken continuous physical presence if the Attorney General
finds that return could not be accomplished due to emergent
reasons; to provide that the provisions regarding calculation
of continuous physical presence shall apply only to notices to
appear for a deportation or removal proceeding filed after the
date of enactment; and to limit to 4,000 in each year the
number of aliens granted cancellation of removal; (21) an
amendment by Mr. Hyde to provide that the amendments reducing
the number of documents that may be presented by employees to
establish identity and eligibility for employment shall take
effect on a date designated by the Attorney General not later
than 18 months after the date of enactment; (22) an amendment
offered by Mr. Goodlatte to exempt from civil or criminal
liability the action of any person taken in good faith reliance
on information provided through the employment eligibility
confirmation mechanism; (23) an amendment by Mr. Barr, with a
perfecting amendment by Mr. Goodlatte, to state that the
confirmation mechanism shall confirm whether an individual has
presented a social security account number or an alien
identification number that is not valid for employment; (24) an
amendment by Mr. Goodlatte to change from 2 days to 3 days
after date of employment the period within which an employer
must make an inquiry into the confirmation mechanism; (25) an
en bloc amendment by Mr. Goodlatte to make a conforming change
to require that the employer inquire into the confirmation
mechanism within 3 days of employment; to provide that
operation of the confirmation mechanism may be carried out by a
nongovernmental entity designated by the Attorney General; to
require that the confirmation mechanism be designed to maximize
reliability and ease of use, to respond to all inquiries and to
register when such response is not possible; to provide that if
an employer attempts to make an inquiry within the required 3
days of employment and the confirmation mechanism has
registered that not all inquiries were responded to during that
time, the employer can meet requirements for making such
inquiries and qualify for the defense from liability extended
to those who use the confirmation mechanism, if the employer
makes the inquiry on the first subsequent working day in which
the confirmation mechanism registers no nonresponses; to
provide that the confirmation mechanism shall provide a
confirmation or tentative nonconfirmation of an individual's
employment eligibility within 3 days of the initial inquiry and
that in the case of a tentative nonconfirmation, the Attorney
General, in consultation with the Commissioner of Social
Security and the Commissioner of the INS, shall provide an
expedited time period, not more than 10 days, within which
final confirmation or nonconfirmation must be provided; to
require that within 180 days of enactment, the Attorney General
shall issue regulations providing for the electronic storage of
I-9 forms; to conform to current law the bill's references to
``hiring'' and ``employment'' by adding references to
recruitment and referral for employment; (26) an amendment by
Mr. Hoke, with an amendment by Mr. Becerra and a perfecting
amendment by Mr. Hyde, to implement the confirmation mechanism
as a series of pilot projects in 5 of the 7 States with the
highest estimated population of unauthorized aliens, to
terminate not later than October 1, 1999, and to require the
Attorney General to submit annual reports on the pilot projects
which may include analysis of whether the mechanism is reliable
and easy to use, limits job losses due to inaccurate data,
increases or decreases discrimination, protects individual
privacy, and burdens employers; (27) an amendment by Mr.
Goodlatte to state that an employer's request for more or
different documents than are required under section 274A(b) of
the INA shall constitute an unfair immigration-related
employment practice if done for the purpose of discriminating;
(28) an amendment by Mr. Hyde to create a new second
employment-based immigration preference for outstanding
professors and researchers and multinational executives and
managers; (29) an amendment by Mr. Hyde to provide a waiver
from the requirement for labor certification for certain aliens
who are members of the professions holding advanced degrees or
aliens of exceptional ability if such waiver is necessary to
advance the national interest in one of several specific areas;
(30) an amendment by Mr. Hyde to strike the requirement that at
least 50 percent of an immigrant's sons and daughters are
lawful permanent residents or citizens residing in the United
States in order for the immigrant to be admitted as the parent
of a United States citizen; (31) an amendment by Mr. Gekas,
with an amendment by Mr. Smith of Texas which was adopted on a
roll call vote, to create a category for the admission as
immigrants of the adult sons and daughters of United States
citizens and lawful permanent residents if such immigrants are
under age 26, never-married, childless, and considered as
dependents for Federal income tax purposes, and to set
numerical limits for the admission of such immigrants; (32) an
amendment by Mr. Gekas, with an amendment by Mr. Smith of Texas
which was adopted on a roll call vote, to change the experience
requirements for immigrants admitted as professionals and
skilled workers; an amendment by Ms. Lofgren to provide a
waiver of the 10-year exclusion for aliens unlawfully present
if the Attorney General determined that such waiver is
necessary to substantially benefit the national interest in one
of several specified areas; (33) an amendment by Mr. Gallegly
to provide that work experience obtained while an alien is
unauthorized to work in the United States shall not count to
meet the experience requirements for immigrants admitted as
professionals and skilled workers; (34) an amendment by Mr.
Smith of Texas to provide for the admission as immigrants of
certain adult disabled children of United States nationals and
lawful permanent residents; (35) an amendment by Mr. Hyde to
extend refugee protection to aliens who have resisted
implementation of coercive population control measures; (36) an
amendment by Mr. Smith of Texas to establish that not less than
25,000 immigrant visas will be available for the parents of
United States citizens; (37) an amendment by Mr. McCollum to
strike provisions for the adjustment of visa numbers for
professionals and skilled workers to offset excess family
admissions; (38) an amendment by Mr. McCollum to change
deadlines for the filing of asylum applications, and to make
other reforms to the asylum process, with an amendment by Mr.
Frank adopted by a roll call vote to the provision for return
of an alien to a safe third country; (39) an amendment by Mr.
Schiff, with a substitute amendment by Mr. Hyde, to establish
deadlines for the refugee consultation process; (40) an
amendment by Mr. Bryant of Tennessee to permit the use of
parole authority for the prosecution of aliens in U.S. courts;
(41) an en bloc amendment by Mr. Smith of Texas to exempt
family violence services from the prohibition on receipt of
public benefits by illegal aliens and to, in the case of an
alien battered or subject to extreme cruelty by a spouse or
parent (or, under certain conditions, another family member
residing in the household); exempt the alien from the
prohibition on receipt of public benefits if the alien has
applied for a change in immigration status within 45 days of
the first application for such public benefits; lengthen to 48
months the period of receipt of public benefits which would
render the alien deportable as a public charge; modify the
rules for attribution of a sponsor's income to the alien;
exempt the alien from the requirement that public benefits paid
to the alien be reimbursed prior to naturalization of the alien
in the event that the battery or cruelty resulted in issuance
of a judicial or administrative order and the need for the
public benefits had a substantial nexus to the battery or
cruelty; (42) an amendment by Mr. Smith of Texas to exempt
school lunch and child nutrition benefits from the prohibition
on receipt of public benefits by illegal aliens; (43) an
amendment by Mr. Smith of Texas to provide that active-duty
military personnel, in order to qualify as sponsors, must
maintain an income at 100 percent of the poverty level; (44) an
amendment by Mr. Smith of Texas to remove social services block
grants from the list of public benefits receipt of which can be
used to establish that an alien is a public charge; (45) an en
bloc amendment by Mr. Smith of Texas to provisions regarding
the protection of American workers from displacement through
the H-1B nonimmigrant program, and other conforming changes;
(46) an amendment by Mrs. Schroeder to require notification to
arriving aliens from certain countries regarding female genital
mutilation; (47) an amendment by Mr. McCollum offered to
require immigrants to submit proof of vaccination against
specified diseases; (48) an amendment by Mr. Gallegly to
provide that reimbursement to hospitals for emergency medical
services may be made for such services provided through a
contract with another hospital or facility; (49) an amendment
by Mr. Gallegly to require that the pilot project for linking
vital statistics records in certain States be implemented
within two years of the date of enactment; (50) an amendment by
Mr. Gallegly to require verification of student eligibility for
post-secondary federal student financial assistance; (51) an
amendment by Mr. Gallegly, with an amendment by Mr. Hyde,
regarding communication between State and local government
agencies and the INS; (52) an amendment by Mr. Smith of Texas
to exempt from limitations on adjustment of status an alien who
has reasonable grounds to fear that he or she will be subject
to battery or extreme cruelty if he or she departs from the
United States; (53) an amendment by Mr. Reed to require that
prior to the construction of new detention facilities for
aliens, that the Commissioner of the INS consider the
availability for purchase or lease of existing facilities; (54)
an amendment by Ms. Lofgren to provide that an alien whose
status is changed under section 248 of the INA may obtain a
visa without departing from the United States; (55) an
amendment by Mr. Nadler to provide that an illegal alien may
receive emergency relief not limited to disaster relief; (56)
an amendment by Mr. Reed to designate Portugal as a country
eligible for the visa waiver pilot program; (57) an amendment
by Mr. Berman to strike the limitation on adjustment of status
under section 245(i) of the INA and increase the charge for
adjustment of status to $2,500; (58) an amendment by Mr.
Becerra, with an amendment by Mr. Smith of Texas adopted by a
voice vote, to provide reimbursement, subject to available
appropriations, of fees paid by petitioners for eliminated
family-sponsored categories; (59) an amendment by Mr. Berman
regarding the confidentiality of the files of legalization
applicants; (60) an en bloc amendment by Mr. Goodlatte to amend
requirements on the hiring of H-1B nonimmigrants by removing
the expanded 30-day period to approve a labor condition
application for an H-1B-dependent employer; increasing the
penalties for not fulfilling H-1B attestations; clarifying that
firing an employee for poor performance does not violate the
no-layoff provisions; establishing criteria for the
determination of prevailing wages; and making other changes;
(61) an amendment by Mr. Berman to extend civil penalties for
document fraud to unauthorized preparers of forms, petitions,
or applications; (62) an amendment by Mr. Frank to allow relief
under the Federal Tort Claims Act for persons wrongly denied
employment through operation of the employment eligibility
verification mechanism; (63) an amendment by Mr. Berman to
permit execution of an affidavit of support for an immigrant by
an individual who will accept joint and several liability with
the petitioner for the immigrant; (64) an amendment by Mr.
Frank to establish criteria under which an employer may request
additional employment eligibility documents from an employee.
Recorded votes
There were forty recorded votes (thirty-nine on amendments
and one on final passage) during the Committee's consideration
of H.R. 2202, as follows:
1. Amendment offered by Mr. Watt to strike the provisions
regarding construction of fencing in the border area near San
Diego. Defeated 11-17.
AYES NAYS
Mr. Conyers Mr. Hyde
Mrs. Schroeder Mr. Moorhead
Mr. Berman Mr. Sensenbrenner
Mr. Reed Mr. Coble
Mr. Nadler Mr. Smith (TX)
Mr. Scott Mr. Schiff
Mr. Watt Mr. Gallegly
Mr. Becerra Mr. Canady
Mr. Serrano Mr. Inglis
Ms. Lofgren Mr. Goodlatte
Ms. Jackson Lee Mr. Hoke
Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Barr
Mr. Bryant (TX)
2. Amendment offered by Mr. Becerra to strike the 10-year
re-admission bar for aliens who have been present unlawfully in
the U.S. for more than one year. Defeated 13-19.
AYES NAYS
Mr. Conyers Mr. Hyde
Mrs. Schroeder Mr. Moorhead
Mr. Berman Mr. Sensenbrenner
Mr. Boucher Mr. McCollum
Mr. Bryant (TX) Mr. Coble
Mr. Reed Mr. Smith (TX)
Mr. Nadler Mr. Schiff
Mr. Scott Mr. Gallegly
Mr. Watt Mr. Canady
Mr. Becerra Mr. Inglis
Mr. Serrano Mr. Goodlatte
Ms. Lofgren Mr. Buyer
Ms. Jackson Lee Mr. Hoke
Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Flanagan
Mr. Barr
3. Amendment offered by Mr. Goodlatte to permanently
exclude aliens from readmission into the U.S. if convicted of
an aggravated felony. Adopted 14-8.\112\
\112\ Ms. Jackson Lee stated for record that, had she been present,
she would have voted ``nay'' on this amendment.
AYES NAYS
Mr. Hyde Mr. Bono
Mr. Moorhead Mr. Conyers
Mr. Sensenbrenner Mrs. Schroeder
Mr. McCollum Mr. Frank
Mr. Coble Mr. Berman
Mr. Smith (TX) Mr. Nadler
Mr. Schiff Mr. Scott
Mr. Gallegly Mr. Watt
Mr. Canady
Mr. Goodlatte
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Reed
4. Amendment offered by Mr. Watt to strike the provisions
regarding the introduction of electronic surveillance
information in special proceedings to remove an alien terrorist
from the U.S. Defeated 10-16.\113\
\113\ Ms. Jackson Lee stated for record that, had she been present,
she would have voted ``aye'' on this amendment.
AYES NAYS
Mr. Bono Mr. Hyde
Mr. Conyers Mr. Sensenbrenner
Mrs. Schroeder Mr. McCollum
Mr. Frank Mr. Gekas
Mr. Berman Mr. Coble
Mr. Nadler Mr. Smith (TX)
Mr. Scott Mr. Schiff
Mr. Watt Mr. Gallegly
Mr. Serrano Mr. Canady
Ms. Lofgren Mr. Inglis
Mr. Goodlatte
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Boucher
Mr. Reed
5. Amendment offered by Mr. Nadler to limit the
introduction of classified information in special proceedings
for the removal of alien terrorists. Defeated 11-18.
AYES NAYS
Mr. Conyers Mr. Hyde
Mr. Frank Mr. Moorhead
Mr. Berman Mr. McCollum
Mr. Reed Mr. Coble
Mr. Nadler Mr. Smith (TX)
Mr. Scott Mr. Gallegly
Mr. Watt Mr. Canady
Mr. Becerra Mr. Inglis
Mr. Serrano Mr. Buyer
Ms. Lofgren Mr. Hoke
Ms. Jackson Lee Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Flanagan
Mr. Barr
Mrs. Schroeder
Mr. Schumer
6. Amendment offered by Mr. Watt to require judicial review
of an order to exclude an alien under procedures for expedited
removal, including review of an asylum officer's determination
that an inadmissible alien does not have a credible fear of
persecution. Defeated 9-15.
AYES NAYS
Mr. Conyers Mr. Hyde
Mr. Frank Mr. McCollum
Mr. Berman Mr. Coble
Mr. Reed Mr. Smith (TX)
Mr. Scott Mr. Gallegly
Mr. Watt Mr. Inglis
Mr. Becerra Mr. Buyer
Ms. Lofgren Mr. Hoke
Ms. Jackson Lee Mr. Bono
Mr. Heineman
Mr. Chabot
Mr. Flanagan
Mr. Barr
Mr. Schumer
Mr. Bryant (TX)
7. Amendment offered by Mr. Chabot to strike provisions for
an employment eligibility verification system. Defeated 15-
17.\114\
\114\ Ms. Jackson Lee stated for record that, had she been present,
she would have voted ``aye'' on this amendment.
AYES NAYS
Mr. Sensenbrenner Mr. Hyde
Mr. Inglis Mr. Moorhead
Mr. Buyer Mr. McCollum
Mr. Hoke Mr. Gekas
Mr. Heineman Mr. Coble
Mr. Chabot Mr. Smith (TX)
Mr. Flanagan Mr. Schiff
Mr. Conyers Mr. Gallegly
Mrs. Schroeder Mr. Canady
Mr. Reed Mr. Goodlatte
Mr. Nadler Mr. Bono
Mr. Watt Mr. Bryant (TN)
Mr. Becerra Mr. Barr
Mr. Serrano Mr. Frank
Ms. Lofgren Mr. Schumer
Mr. Berman
Mr. Bryant (TX)
8. Amendment offered by Mr. Berman to expand enforcement
authority and penalties against labor standards violations.
Defeated 13-18.
AYES NAYS
Mr. Conyers Mr. Hyde
Mrs. Schroeder Mr. Moorhead
Mr. Frank Mr. Sensenbrenner
Mr. Berman Mr. McCollum
Mr. Boucher Mr. Gekas
Mr. Bryant (TX) Mr. Smith (TX)
Mr. Reed Mr. Schiff
Mr. Nadler Mr. Gallegly
Mr. Watt Mr. Canady
Mr. Becerra Mr. Inglis
Mr. Serrano Mr. Goodlatte
Ms. Lofgren Mr. Hoke
Ms. Jackson Lee Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Flanagan
Mr. Barr
9. Amendment offered by Mr. Barr to exempt employers of
three or less employees from the requirement to verify
employment eligibility through the electronic verification
mechanism. Adopted 16-13.115
\115\ Ms. Lofgren voted ``present''.
AYES NAYS
Mr. Moorhead Mr. Hyde
Mr. Gekas Mr. Sensenbrenner
Mr. Smith (TX) Mr. McCollum
Mr. Gallegly Mr. Schiff
Mr. Canady Mr. Goodlatte
Mr. Inglis Mr. Hoke
Mr. Bono Mr. Bryant (TN)
Mr. Heineman Mr. Frank
Mr. Flanagan Mr. Schumer
Mr. Barr Mr. Berman
Mr. Conyers Mr. Watt
Mrs. Schroeder Mr. Becerra
Mr. Boucher Mr. Serrano
Mr. Reed
Mr. Nadler
Ms. Jackson Lee
10. A perfecting amendment offered by Mr. Berman to remove
from the substitute amendment offered by Mr. Smith of Texas to
the amendment offered by Mr. Gekas the requirement that, in
order to be eligible for an immigrant visa, the adult unmarried
sons and daughters be claimed as dependents for Federal Income
Tax purposes. Defeated 11-17.
AYES NAYS
Mr. Conyers Mr. Hyde
Mrs. Schroeder Mr. Sensenbrenner
Mr. Frank Mr. McCollum
Mr. Berman Mr. Gekas
Mr. Nadler Mr. Coble
Mr. Scott Mr. Smith (TX)
Mr. Watt Mr. Schiff
Mr. Becerra Mr. Gallegly
Mr. Serrano Mr. Canady
Ms. Lofgren Mr. Goodlatte
Ms. Jackson Lee Mr. Buyer
Mr. Hoke
Mr. Bono
Mr. Heineman
Mr. Chabot
Mr. Flanagan
Mr. Barr
11. A perfecting amendment offered by Mr. Becerra to remove
from the substitute amendment offered by Mr. Smith of Texas to
the amendment offered by Mr. Gekas the requirement that, in
order to be eligible for an immigrant visa, a son or daughter
be ``never married'' and to insert a requirement that the son
or daughter be ``unmarried.'' Defeated 11-19.
AYES NAYS
Mr. Conyers Mr. Hyde
Mrs. Schroeder Mr. Sensenbrenner
Mr. Frank Mr. McCollum
Mr. Berman Mr. Gekas
Mr. Nadler Mr. Coble
Mr. Scott Mr. Smith (TX)
Mr. Watt Mr. Schiff
Mr. Becerra Mr. Gallegly
Mr. Serrano Mr. Canady
Ms. Lofgren Mr. Inglis
Ms. Jackson Lee Mr. Goodlatte
Mr. Buyer
Mr. Hoke
Mr. Bono
Mr. Heineman
Mr. Chabot
Mr. Flanagan
Mr. Barr
Mr. Boucher
12. A substitute amendment offered by Mr. Smith of Texas to
the amendment offered by Mr. Gekas to create a category for the
admission of certain adult sons and daughters of citizens and
permanent resident aliens. Adopted 17-12.
AYES NAYS
Mr. Sensenbrenner Mr. Hyde
Mr. McCollum Mr. Conyers
Mr. Gekas Mrs. Schroeder
Mr. Coble Mr. Frank
Mr. Smith (TX) Mr. Berman
Mr. Schiff Mr. Boucher
Mr. Gallegly Mr. Scott
Mr. Canady Mr. Watt
Mr. Inglis Mr. Becerra
Mr. Goodlatte Mr. Serrano
Mr. Buyer Ms. Lofgren
Mr. Hoke Ms. Jackson Lee
Mr. Bono
Mr. Heineman
Mr. Chabot
Mr. Flanagan
Mr. Barr
13. A substitute amendment offered by Mr. Smith of Texas to
an amendment offered by Mr. Gekas to change the work experience
requirements for aliens admitted as professionals or skilled
workers. Adopted 17-9.
AYES NAYS
Mr. Moorhead Mr. Hyde
Mr. McCollum Mr. Gekas
Mr. Coble Mr. Inglis
Mr. Smith (TX) Mr. Bono
Mr. Schiff Mr. Chabot
Mr. Gallegly Mr. Flanagan
Mr. Buyer Mr. Barr
Mr. Hoke Mr. Frank
Mr. Heineman Ms. Lofgren
Mr. Conyers Mrs. Schroeder
Mr. Schumer
Mr. Berman
Mr. Bryant (TX)
Mr. Reed
Mr. Watt
Ms. Jackson Lee
14. Amendment offered by Mr. Watt to eliminate the investor
visa program. Defeated 8-20.
AYES NAYS
Mr. Conyers Mr. Hyde
Mr. Frank Mr. Moorhead
Mr. Bryant (TX) Mr. McCollum
Mr. Reed Mr. Gekas
Mr. Scott Mr. Coble
Mr. Watt Mr. Smith (TX)
Mr. Becerra Mr. Schiff
Mr. Serrano Mr. Gallegly
Mr. Canady
Mr. Inglis
Mr. Goodlatte
Mr. Buyer
Mr. Hoke
Mr. Bono
Mr. Heineman
Mr. Chabot
Mr. Flanagan
Mr. Barr
Mr. Berman
Ms. Lofgren
15. Amendment offered by Mr. Watt to limit to 2,000 the
numbers of visas available for investors. Defeated 10-18.
AYES NAYS
Mr. Conyers Mr. Hyde
Mr. Frank Mr. Moorhead
Mr. Bryant (TX) Mr. McCollum
Mr. Reed Mr. Coble
Mr. Nadler Mr. Smith (TX)
Mr. Scott Mr. Schiff
Mr. Watt Mr. Gallegly
Mr. Becerra Mr. Canady
Mr. Serrano Mr. Inglis
Ms. Jackson Lee Mr. Goodlatte
Mr. Buyer
Mr. Bono
Mr. Heineman
Mr. Chabot
Mr. Flanagan
Mr. Barr
Mr. Berman
Mr. Boucher
16. Amendment offered by Ms. Jackson Lee to extend the
asylum filing deadline from 60 to 180 days. Defeated: 9-14.
AYES NAYS
Mr. Conyers Mr. Hyde
Mrs. Schroeder Mr. McCollum
Mr. Frank Mr. Gekas
Mr. Berman Mr. Smith (TX)
Mr. Boucher Mr. Gallegly
Mr. Nadler Mr. Canady
Mr. Serrano Mr. Goodlatte
Ms. Lofgren Mr. Buyer
Ms. Jackson Lee Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Flanagan
Mr. Barr
17. Amendment offered by Mr. Berman to strike the
provisions reforming the legal immigration system (sections 500
through 517). Defeated 14-20.
AYES NAYS
Mr. Chabot Mr. Hyde
Mr. Conyers Mr. Moorhead
Mrs. Schroeder Mr. Sensenbrenner
Mr. Frank Mr. McCollum
Mr. Schumer Mr. Gekas
Mr. Berman Mr. Coble
Mr. Reed Mr. Smith (TX)
Mr. Nadler Mr. Gallegly
Mr. Scott Mr. Canady
Mr. Watt Mr. Inglis
Mr. Becerra Mr. Goodlatte
Mr. Serrano Mr. Buyer
Ms. Lofgren Mr. Hoke
Ms. Jackson Lee Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Flanagan
Mr. Barr
Mr. Boucher
Mr. Bryant (TX)
18. Amendment offered by Mr. Frank to the amendment offered
by McCollum to section 526 [now section 531] regarding the
eligibility of aliens to apply for asylum. Adopted 18-11.
AYES NAYS
Mr. Hyde Mr. Sensenbrenner
Mr. Moorhead Mr. McCollum
Mr. Schiff Mr. Coble
Mr. Canady Mr. Smith (TX)
Mr. Bono Mr. Gallegly
Mr. Flanagan Mr. Inglis
Mr. Conyers Mr. Goodlatte
Mrs. Schroeder Mr. Buyer
Mr. Frank Mr. Heineman
Mr. Schumer Mr. Bryant (TN)
Mr. Berman Mr. Chabot
Mr. Boucher
Mr. Reed
Mr. Scott
Mr. Watt
Mr. Serrano
Ms. Lofgren
Ms. Jackson Lee
19. Perfecting amendment offered by Mr. Schiff to the
substitute amendment offered by Mr. Hyde to the amendment
offered by Mr. Schiff concerning the refugee consultation
process, to permit the establishment of a higher refugee
ceiling through the consultation process. Defeated 15-
16.116
\116\ Ms. Jackson Lee stated for the record that, had she been
present, she would have voted ``aye'' on this amendment.
AYES NAYS
Mr. Schiff Mr. Hyde
Mr. Hoke Mr. Moorhead
Mr. Chabot Mr. Sensenbrenner
Mr. Flanagan Mr. McCollum
Mr. Conyers Mr. Smith (TX)
Mrs. Schroeder Mr. Gallegly
Mr. Frank Mr. Canady
Mr. Schumer Mr. Inglis
Mr. Berman Mr. Goodlatte
Mr. Reed Mr. Buyer
Mr. Nadler Mr. Bono
Mr. Scott Mr. Heineman
Mr. Watt Mr. Bryant (TN)
Mr. Becerra Mr. Barr
Ms. Lofgren Mr. Boucher
Mr. Bryant (TX)
21. Amendment offered by Ms. Jackson Lee eliminating the
cap on immediate relatives, restoring parents of citizens to
the category of immediate relatives, and eliminating borrowing
from employment based visas for family admissions. Defeated 16-
16.
AYES NAYS
Mr. Chabot Mr. Hyde
Mr. Flanagan Mr. Moorhead
Mr. Conyers Mr. Sensenbrenner
Mrs. Schroeder Mr. McCollum
Mr. Frank Mr. Coble
Mr. Schumer Mr. Smith (TX)
Mr. Berman Mr. Schiff
Mr. Boucher Mr. Canady
Mr. Reed Mr. Inglis
Mr. Nadler Mr. Goodlatte
Mr. Scott Mr. Buyer
Mr. Watt Mr. Hoke
Mr. Becerra Mr. Bono
Mr. Serrano Mr. Heineman
Ms. Lofgren Mr. Bryant (TN)
Ms. Jackson Lee Mr. Bryant TX)
20. Amendment offered by Mr. Berman regarding the admission
of the spouses and children of aliens admitted as employment-
based immigrants. Defeated 13-18.
AYES NAYS
Mr. Conyers Mr. Hyde
Mrs. Schroeder Mr. Moorhead
Mr. Frank Mr. Sensenbrenner
Mr. Berman Mr. McCollum
Mr. Boucher Mr. Smith (TX)
Mr. Bryant (TX) Mr. Schiff
Mr. Reed Mr. Canady
Mr. Nadler Mr. Inglis
Mr. Scott Mr. Goodlatte
Mr. Watt Mr. Buyer
Mr. Becerra Mr. Hoke
Mr. Serrano Mr. Bono
Ms. Jackson Lee Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Flanagan
Mr. Barr
Ms. Lofgren
21. Amendment offered by Ms. Jackson Lee eliminating the
cap on immediate relatives, restoring parents of citizens to
the category of immediate relatives, and eliminating borrowing
from employment based visas for family admissions. Defeated 16-
16.
AYES NAYS
Mr. Chabot Mr. Hyde
Mr. Flanagan Mr. Moorhead
Mr. Conyers Mr. Sensenbrenner
Mrs. Schroeder Mr. McCollum
Mr. Frank Mr. Coble
Mr. Schumer Mr. Smith (TX)
Mr. Berman Mr. Schiff
Mr. Boucher Mr. Canady
Mr. Reed Mr. Inglis
Mr. Nadler Mr. Goodlatte
Mr. Scott Mr. Buyer
Mr. Watt Mr. Hoke
Mr. Becerra Mr. Bono
Mr. Serrano Mr. Heineman
Ms. Lofgren Mr. Bryant (TN)
Ms. Jackson Lee Mr. Bryant (TX)
22. Amendment offered by Mr. Schiff to permit an increase
in the limit on refugee admissions through the refugee
consultation process. Defeated 14-16.117
\117\ Ms. Jackson Lee stated for the record that, had she been
present, she would have voted ``aye'' on this amendment.
AYES NAYS
Mr. Schiff Mr. Hyde
Mr. Hoke Mr. Moorhead
Mr. Chabot Mr. Sensenbrenner
Mrs. Schroeder Mr. McCollum
Mr. Frank Mr. Gekas
Mr. Schumer Mr. Smith (TX)
Mr. Berman Mr. Gallegly
Mr. Boucher Mr. Canady
Mr. Reed Mr. Inglis
Mr. Nadler Mr. Goodlatte
Mr. Scott Mr. Buyer
Mr. Watt Mr. Bono
Mr. Serrano Mr. Heineman
Ms. Lofgren Mr. Bryant (TN)
Mr. Barr
Mr. Bryant (TX)
23. Amendment offered by Mr. Nadler providing that the
``public charge'' ground for deportability would not apply in
the case of a refugee or asylee. Defeated 7-14.118
\118\ Ms. Jackson Lee stated for the record that, had she been
present, she would have voted ``aye'' on this amendment.
AYES NAYS
Mr. Conyers Mr. Hyde
Mr. Berman Mr. Moorhead
Mr. Nadler Mr. Sensenbrenner
Mr. Scott Mr. Smith (TX)
Mr. Watt Mr. Canady
Mr. Becerra Mr. Goodlatte
Ms. Lofgren Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Flanagan
Mr. Barr
Mr. Bryant (TX)
Mr. Reed
24. Amendment offered by Mr. Bryant of TN requiring
hospitals to provide that hospitals seeking federal
reimbursement for the emergency treatment of illegal aliens
shall promptly provide the INS with identifying information
regarding the illegal alien. Defeated 11-15.119
\119\ Ms. Jackson Lee stated for the record that, had she been
present, she would have voted ``nay'' on this amendment.
AYES NAYS
Mr. McCollum Mr. Hyde
Mr. Smith (TX) Mr. Moorhead
Mr. Inglis Mr. Sensenbrenner
Mr. Buyer Mr. Goodlatte
Mr. Hoke Mr. Conyers
Mr. Bono Mrs. Schroeder
Mr. Heineman Mr. Schumer
Mr. Bryant (TN) Mr. Berman
Mr. Chabot Mr. Boucher
Mr. Flanagan Mr. Bryant (TX)
Mr. Barr Mr. Reed
Mr. Nadler
Mr. Watt
Mr. Becerra
Ms. Lofgren
25. Amendment offered by Mr. Moorhead providing that for
purposes of computing prevailing wages in the H-1B program for
non-profit independent research organizations, the calculation
shall take into account only employees at similar institutions
and entities. Adopted 21-10.
AYES NAYS
Mr. Hyde Mr. Conyers
Mr. Moorhead Mr. Frank
Mr. Sensenbrenner Mr. Schumer
Mr. McCollum Mr. Berman
Mr. Coble Mr. Boucher
Mr. Smith (TX) Mr. Bryant (TX)
Mr. Schiff Mr. Reed
Mr. Gallegly Mr. Nadler
Mr. Canady Mr. Becerra
Mr. Inglis Ms. Jackson Lee
Mr. Goodlatte
Mr. Buyer
Mr. Hoke
Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Flanagan
Mr. Barr
Mrs. Schroeder
Ms. Lofgren
26. Amendment offered by Mr. Schumer limiting to 20 percent
the number of H-1B immigrants that may be employed in any
single employer's workforce. Defeated 8-18-1.120.
\120\ Mr. Becerra voted ``present''.
AYES NAYS
Mrs. Schroeder Mr. Hyde
Mr. Frank Mr. Moorhead
Mr. Schumer Mr. Sensenbrenner
Mr. Berman Mr. Smith (TX)
Mr. Bryant (TX) Mr. Gallegly
Mr. Reed Mr. Canady
Mr. Nadler Mr. Inglis
Mr. Watt Mr. Goodlatte
Mr. Buyer
Mr. Hoke
Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Flanagan
Mr. Barr
Mr. Serrano
Ms. Lofgren
27. An en bloc amendment offered by Ms. Lofgren to change
the limitations in section 212(e) on the ability of
participants in the Exchange Visitor Visa Program to apply for
an immigrant visa. Defeated 10-15.
AYES NAYS
Mr. Goodlatte Mr. Hyde
Mr. Conyers Mr. Moorhead
Mr. Frank Mr. McCollum
Mr. Berman Mr. Gekas
Mr. Bryant (TX) Mr. Coble
Mr. Reed Mr. Smith (TX)
Mr. Watt Mr. Gallegly
Mr. Becerra Mr. Canady
Ms. Lofgren Mr. Inglis
Ms. Jackson Lee Mr. Hoke
Mr. Bono
Mr. Heineman
Mr. Chabot
Mr. Flanagan
Mr. Barr
28. Amendment offered by Mr. Goodlatte to the amendment
offered by Mr. Schumer to restore the diversity immigrant
program, to limit the foreign states whose nationals would be
eligible for the program. Defeated 14-15.
AYES NAYS
Mr. Moorhead Mr. Hyde
Mr. Sensenbrenner Mr. McCollum
Mr. Smith (TX) Mr. Hoke
Mr. Canady Mr. Bono
Mr. Inglis Mr. Chabot
Mr. Goodlatte Mr. Flanagan
Mr. Buyer Mr. Conyers
Mr. Heineman Mrs. Schroeder
Mr. Bryant (TN) Mr. Frank
Mr. Barr Mr. Schumer
Mr. Bryant (TX) Mr. Berman
Mr. Watt Mr. Boucher
Mr. Becerra Mr. Reed
Ms. Lofgren Mr. Nadler
Ms. Jackson Lee
29. Amendment offered by Mr. Schumer, as amended by an
amendment offered by Mr. Becerra and adopted by unanimous
consent, to establish a diversity immigration program. Adopted
18-11.
AYES NAYS
Mr. Hyde Mr. Moorhead
Mr. McCollum Mr. Sensenbrenner
Mr. Hoke Mr. Gekas
Mr. Bono Mr. Smith (TX)
Mr. Bryant (TN) Mr. Gallegly
Mr. Flanagan Mr. Canady
Mr. Barr Mr. Inglis
Mr. Conyers Mr. Goodlatte
Mr. Frank Mr. Buyer
Mr. Schumer Mr. Heineman
Mr. Berman Mr. Bryant (TX)
Mr. Boucher
Mr. Reed
Mr. Nadler
Mr. Watt
Mr. Becerra
Ms. Lofgren
Ms. Jackson Lee
30. Amendment offered by Mr. Becerra to limit actions that
may be taken by an employer pending completion of the secondary
verification process. Defeated 12-18.
AYES NAYS
Mr. Conyers Mr. Hyde
Mrs. Schroeder Mr. Moorhead
Mr. Frank Mr. Sensenbrenner
Mr. Berman Mr. McCollum
Mr. Boucher Mr. Gekas
Mr. Bryant (TX) Mr. Coble
Mr. Reed Mr. Smith (TX)
Mr. Nadler Mr. Schiff
Mr. Watt Mr. Gallegly
Mr. Becerra Mr. Canady
Ms. Lofgren Mr. Inglis
Ms. Jackson Lee Mr. Goodlatte
Mr. Buyer
Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Barr
31. Amendment offered by Mr. Goodlatte to change the
percentage threshold for H-1B dependent employers and to
provide a transitional program for certain H-1B dependent
employers to become H-1B non-dependent employers. Adopted 22-
11.
AYES NAYS
Mr. Hyde Mr. Conyers
Mr. Moorhead Mr. Frank
Mr. Sensenbrenner Mr. Schumer
Mr. McCollum Mr. Berman
Mr. Gekas Mr. Boucher
Mr. Coble Mr. Bryant (TX)
Mr. Smith (TX) Mr. Reed
Mr. Schiff Mr. Nadler
Mr. Gallegly Mr. Watt
Mr. Canady Mr. Becerra
Mr. Inglis Ms. Jackson Lee
Mr. Goodlatte
Mr. Buyer
Mr. Hoke
Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Flanagan
Mr. Barr
Mrs. Schroeder
Ms. Lofgren
32. A perfecting amendment offered by Mr. Smith of Texas to
an amendment offered by Mr. Becerra Amendment regarding
reimbursement of fees to petitioners for immigrants in the
eliminated family-sponsored categories. Adopted 18-13.
AYES NAYS
Mr. Hyde Mr. Heineman
Mr. Moorhead Mr. Flanagan
Mr. Sensenbrenner Mr. Conyers
Mr. McCollum Mrs. Schroeder
Mr. Gekas Mr. Schumer
Mr. Coble Mr. Berman
Mr. Smith (TX) Mr. Boucher
Mr. Gallegly Mr. Reed
Mr. Canady Mr. Nadler
Mr. Inglis Mr. Watt
Mr. Goodlatte Mr. Becerra
Mr. Buyer Ms. Lofgren
Mr. Hoke Ms. Jackson Lee
Mr. Bono
Mr. Bryant (TN)
Mr. Chabot
Mr. Barr
Mr. Bryant (TX)
33. Amendment offered by Mr. Reed excluding from entry
persons who renounce U.S. citizenship to avoid paying taxes.
Adopted 25-5.
AYES NAYS
Mr. Hyde Mr. Moorhead
Mr. Sensenbrenner Mr. McCollum
Mr. Schiff Mr. Gekas
Mr. Gallegly Mr. Coble
Mr. Canady Mr. Smith (TX)
Mr. Inglis
Mr. Goodlatte
Mr. Buyer
Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Flanagan
Mr. Barr
Mr. Conyers
Mrs. Schroeder
Mr. Schumer
Mr. Berman
Mr. Bryant (TX)
Mr. Reed
Mr. Nadler
Mr. Watt
Mr. Becerra
Ms. Lofgren
Ms. Jackson Lee
34. Amendment offered by Mr. Gallegly providing that
payments of public assistance benefits only be made to
individuals who are personally eligible to receive such
benefits. Adopted 16-11.
AYES NAYS
Mr. Hyde Mr. Moorhead
Mr. Gekas Mr. Conyers
Mr. Coble Mrs. Schroeder
Mr. Smith (TX) Mr. Berman
Mr. Schiff Mr. Bryant (TX)
Mr. Gallegly Mr. Nadler
Mr. Canady Mr. Scott
Mr. Inglis Mr. Watt
Mr. Goodlatte Mr. Becerra
Mr. Buyer Ms. Lofgren
Mr. Bono Ms. Jackson Lee
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Flanagan
Mr. Barr
35. Amendment offered by Mr. Becerra to provide for a study
to examine the cost to small businesses for participation in
the employment eligibility verification system. Defeated 11-19.
AYES NAYS
Mr. Inglis Mr. Hyde
Mr. Chabot Mr. Moorhead
Mr. Flanagan Mr. Sensenbrenner
Mr. Conyers Mr. Gekas
Mr. Reed Mr. Coble
Mr. Nadler Mr. Smith (TX)
Mr. Scott Mr. Schiff
Mr. Watt Mr. Gallegly
Mr. Becerra Mr. Canady
Ms. Lofgren Mr. Goodlatte
Ms. Jackson Lee Mr. Buyer
Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Barr
Mr. Schumer
Mr. Berman
Mr. Boucher
Mr. Bryant (TX)
36. Amendment offered by Mr. Berman regarding employer
responsibility in case of H-1B employees. Defeated 11-17.
AYES NAYS
Mrs. Schroeder Mr. Hyde
Mr. Frank Mr. Moorhead
Mr. Berman Mr. Sensenbrenner
Mr. Boucher Mr. McCollum
Mr. Bryant (TX) Mr. Coble
Mr. Reed Mr. Smith (TX)
Mr. Nadler Mr. Schiff
Mr. Scott Mr. Gallegly
Mr. Watt Mr. Canady
Mr. Becerra Mr. Inglis
Ms. Jackson Lee Mr. Goodlatte
Mr. Buyer
Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Flanagan
37. An amendment offered by Ms. Jackson Lee providing for
an exemption from expedited removal for persons fleeing a
country where there is civil strife, or other, temporary unsafe
conditions, or where the Secretary of State has not certified
that human rights violations do not occur. Defeated 10-22.
AYES NAYS
Mr. Conyers Mr. Hyde
Mrs. Schroeder Mr. Moorhead
Mr. Frank Mr. Sensenbrenner
Mr. Berman Mr. McCollum
Mr. Nadler Mr. Coble
Mr. Scott Mr. Smith (TX)
Mr. Watt Mr. Schiff
Mr. Becerra Mr. Gallegly
Ms. Lofgren Mr. Canady
Ms. Jackson Lee Mr. Inglis
Mr. Goodlatte
Mr. Buyer
Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Flanagan
Mr. Barr
Mr. Schumer
Mr. Boucher
Mr. Bryant (TX)
Mr. Reed
38. An amendment offered by Mr. Berman to provide visas for
eliminated family preference categories whose priority date
falls within 2 years of the bill's effective date. Defeated 15-
18.
AYES NAYS
Mr. Schiff Mr. Hyde
Mr. Chabot Mr. Moorhead
Mr. Flanagan Mr. Sensenbrenner
Mr. Conyers Mr. McCollum
Mrs. Schroeder Mr. Gekas
Mr. Frank Mr. Coble
Mr. Schumer Mr. Smith (TX)
Mr. Berman Mr. Gallegly
Mr. Reed Mr. Canady
Mr. Nadler Mr. Inglis
Mr. Scott Mr. Goodlatte
Mr. Watt Mr. Buyer
Mr. Becerra Mr. Bono
Ms. Lofgren Mr. Heineman
Ms. Jackson Lee Mr. Bryant (TN)
Mr. Barr
Mr. Boucher
Mr. Bryant (TX)
39. An amendment offered by Mr. Becerra to decrease the
level of annual income required by a sponsor from 200 percent
to 150 percent of the poverty level. Defeated 6-14.
AYES NAYS
Mr. Conyers Mr. Hyde
Mr. Frank Mr. Moorhead
Mr. Berman Mr. Sensenbrenner
Mr. Watt Mr. Gekas
Mr. Becerra Mr. Coble
Ms. Lofgren Mr. Smith (TX)
Mr. Schiff
Mr. Inglis
Mr. Buyer
Mr. Hoke
Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Boucher
40. Vote on Final Passage: Adopted 23-10.
AYES NAYS
Mr. Hyde Mr. Conyers
Mr. Moorhead Mrs. Schroeder
Mr. Sensenbrenner Mr. Frank
Mr. McCollum Mr. Schumer
Mr. Gekas Mr. Berman
Mr. Coble Mr. Nadler
Mr. Smith (TX) Mr. Scott
Mr. Schiff Mr. Watt
Mr. Gallegly Mr. Becerra
Mr. Canady Ms. Lofgren
Mr. Inglis
Mr. Goodlatte
Mr. Buyer
Mr. Hoke
Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Flanagan
Mr. Barr
Mr. Boucher
Mr. Bryant (TX)
Mr. Reed
Committee Oversight Findings
In compliance with clause 2(l)(3)(A) of rule XI of the
Rules of the House of Representatives, the Committee reports
that the findings and recommendations of the Committee, based
on oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Committee on Government Reform and Oversight Findings
No findings or recommendations of the Committee on
Government Reform and Oversight were received as referred to in
clause 2(l)(3)(D) of rule XI of the Rules of the House of
Representatives.
New Budget Authority and Tax Expenditures
Clause 2(l)(3)(B) of House Rule XI is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 2(l)(3)(C) of rule XI of the
Rules of the House of Representatives, the Committee sets
forth, with respect to the bill, H.R. 2202, the following
estimate and comparison prepared by the Director of the
Congressional Budget Office under section 403 of the
Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, March 4, 1996.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2202, the
Immigration and the National Interest Act of 1995. Because
enactment of the bill would affect direct spending, pay-as-you-
go procedures would apply.
If you wish further details on this estimate, we will be
pleased to provide them.
Sincerely,
June E. O'Neill, Director.
Enclosure.
1. Bill number: H.R. 2202.
2. Bill Title: Immigration in the National Interest Act of
1995.
3. Bill status: As ordered reported by the House Committee
on the Judiciary on October 24, 1995.
4. Bill purpose: H.R. 2202 would make many changes and
additions to federal laws relating to immigration. Provisions
having a potentially significant budgetary impact are
highlighted below.
Title I would:
specify that the number of Immigration and
Naturalization (INS) border patrol agents would be
increased by 1,000 in each of the fiscal years 1996
through 2000 relative to the number as of September 30,
1995; in addition, the number of full-time support
positions for border patrol agents would be increased
by 800;
authorize appropriations of $12 million for
improvements in barriers along the U.S.-Mexico border;
require that border crossing identification cards
include a biometric identifier (such as a fingerprint)
that is machine-readable;
direct the Attorney General to train border patrol
personnel on the rights and various cultural
backgrounds of aliens and U.S. citizens;
establish several pilot programs relating to
inadmissible or deportable aliens; and
direct the Attorney General to deploy enough INS
investigators and enforcement personnel in the interior
of the United States to properly investigate and
enforce immigration laws.
Title II would:
increase by 25 the number of Assistant United States
Attorneys that may be employed by the Department of
Justice for fiscal year 1996; and
provide for new and increased penalties for a number
of crimes related to immigration.
Title III would:
permit the Attorney General to reemploy up to 300
federal retirees for as long as two years to support
the Institutional Hearing Program;
direct the Attorney General to increase the detention
facilities of the INS to at least 9,000 beds by fiscal
year 1997;
authorize appropriations of $5 million annually for
the INS and $150 million annually for the Attorney
General, beginning in fiscal year 1996, for costs
related to detention and removal of aliens;
provide for an increase in pay for immigration
judges;
establish in the general fund of the Treasury an
Immigration Enforcement Account, and
provide for new and increased penalties for a number
of crimes related to immigration.
Title IV would:
direct the INS to increase the number of positions in
the Investigations Division by 350 above the number of
such positions available as of September 30, 1994;
direct the Department of Labor (DOL) to increase the
number of full-time equivalent positions in the Wage
and Hour Division of the Employment Standards
Administration by 150 above the number of such
positions available as of September 30, 1994; and
direct the Attorney General to devise a system, such
as a toll-free telephone line or other electronic
media, by which employers could confirm the eligibility
of prospective employees. This system would be
implemented via pilot projects in five states through
the end of fiscal year 1999; continuation of the
projects would be subject to Congressional action.
Title V would:
reduce the number of legal immigrants allowed to
enter the United States each year;
set a statutory cap on the number of refugees
admitted into the United States;
permit the Attorney General to reemploy up to 300
federal retirees for as long as two years to reduce the
backlog in asylum applications;
direct the Attorney General to increase the number of
INS asylum officers to at least 600 by fiscal year
1997; and
require the Attorney General, subject to the
availability of appropriations, to reimburse visa
application fees paid by petitioners for family-
sponsored immigrant categories that are eliminated by
this bill before the petitioner receives the visa.
Title VI would affect various benefit programs. It would:
curtail the eligibility of non-legal aliens,
including those permanently residing under color of law
(PRUCOL), in the narrow instances where they are now
eligible for federal benefits;
put sponsors of future immigrants on notice that they
are expected to support them for a longer period than
current law provides, by extending the period in which
a sponsor's income is presumed or deemed to be
available to the alien and by making affidavits of
support legally enforceable;
deny the earned income tax credit to individuals not
authorized to be employed in the United States; and
change federal coverage of emergency Medicaid
services for illegal aliens.
Title VII would:
direct the Attorney General and the Secretary of the
Treasury to increase the number of land border
inspectors in fiscal years 1996 and 1997 to assure full
staffing during peak border crossing hours; and
direct the Attorney General, within two years of
enactment of this bill, to establish preinspection
stations in at least five of the foreign airports that
serve as departure points for the greatest number of
air passengers traveling to the U.S. In addition, this
title would direct the Attorney General, within four
years of enactment, to establish preinspection stations
in at least five foreign airports that would most
effectively reduce the number of aliens who arrive by
air without valid documentation.
5. Estimated cost to the Federal Government: Assuring
appropriation of the entire amounts authorized, enacting H.R.
2202 would increase discretionary spending over fiscal years
1996 through 2002 by a total of about $5 billion. Several
provisions of H.R. 2202, mainly those in Title VI affecting
benefit programs, would result in changes to mandatory spending
and federal revenues. CBO estimates that the changes in
mandatory spending would reduce outlays by about $6 billion
over the 1996-2002 period, and that revenues would increase by
about $80 million over the same period. The estimated budgetary
effects of the legislation are summarized in Table 1. Table 2
shows projected outlays for direct spending programs under
current law, the changes that would stem from the bill, and the
projected outlays for each program if the bill were enacted.
TABLE 1.--ESTIMATED BUDGETARY EFFECTS OF H.R. 2202
[By fiscal years, in millions of dollars]
----------------------------------------------------------------------------------------------------------------
1996 1997 1998 1999 2000 2001 2002
----------------------------------------------------------------------------------------------------------------
SPENDING SUBJECT TO APPROPRIATIONS ACTION
Authorizations:
Estimated authorization level......... 129 699 774 856 960 978 996
Estimated outlays..................... 0 532 637 940 994 956 976
MANDATORY SPENDING AND RECEIPTS
Direct Spending:
Estimated budget authority............ 0 -230 -428 -684 -1,020 -1,397 -2,057
Estimated outlays..................... 0 -230 -428 -684 -1,020 -1,397 -2,057
Estimated Revenues.................... 0 14 13 12 13 13 13
----------------------------------------------------------------------------------------------------------------
The costs of this bill fall within budget functions 550,
600, 750, and 950.
TABLE 2.--ESTIMATED EFFECTS OF H.R. 2202 ON DIRECT SPENDING PROGRAMS
[By fiscal years, in millions of dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
1995 1996 1997 1998 1999 2000 2001 2002
--------------------------------------------------------------------------------------------------------------------------------------------------------
PROJECTED SPENDING UNDER CURRENT LAW
Supplemental Security Income.................... 24,509 24,497 29,894 32,967 36,058 42,612 39,287 46,511
Food Stamps \1\................................. 25,554 26,935 28,620 30,164 31,706 33,406 35,035 36,603
Family Support Payments \2\..................... 18,086 18,544 19,048 19,534 20,132 20,793 21,477 22,184
Medicaid........................................ 89,070 99,292 110,021 122,060 134,827 148,110 162,590 177,786
Earned Income Tax Credit (outlay portion)....... 15,244 20,392 22,904 23,880 24,938 25,982 26,794 27,546
Receipts of Employer Contributions.............. -27,960 -27,365 -28,081 -28,907 -29,621 -30,938 -32,428 -33,910
-------------------------------------------------------------------------------------------------------
Total..................................... 144,503 162,295 182,406 199,698 218,040 239,965 252,755 276,720
=======================================================================================================
PROPOSED CHANGES
Supplemental Security Income.................... ........... 0 -10 -80 -160 -260 -370 -670
Food Stamps \1\................................. ........... 0 0 -15 -45 -100 -170 -250
Family Support Payments \2\..................... ........... 0 -1 -13 -23 -48 -63 -78
Medicaid........................................ ........... 0 -5 -110 -240 -390 -570 -830
Earned Income Tax Credit (outlay portion)....... ........... 0 -216 -214 -218 -222 -224 -229
Receipts of Employer Contributions.............. ........... 0 2 4 2 0 0 0
-------------------------------------------------------------------------------------------------------
Total..................................... ........... 0 -230 -428 -684 -1,020 -1,397 -2,057
=======================================================================================================
PROJECTED SPENDING UNDER H.R. 2202
Supplemental Security Income.................... 24,509 24,497 29,884 32,887 35,898 42,352 38,917 45,841
Food Stamps \1\................................. 22,554 26,935 28,620 30,149 31,661 33,306 34,865 36,353
Family Support Payments \2\..................... 18,086 18,544 19,047 19,521 20,109 20,745 21,414 22,106
Medicaid........................................ 89,070 99,292 110,016 121,950 134,587 147,720 162,020 176,956
Earned Income Tax Credit (outlay portion)....... 15,244 20,392 22,688 23,666 24,720 25,760 26,570 27,317
Receipts of Employer Contributions.............. -27,960 -27,365 -28,079 -28,903 -29,619 -30,938 -32,428 -33,910
-------------------------------------------------------------------------------------------------------
Total..................................... 144,503 162,295 182,176 199,270 217,356 238,945 251,358 274,663
Changes to revenues............................. ........... 0 14 13 12 13 13 13
Net deficit effect.............................. ........... 0 -244 -441 -696 -1,033 -1,410 -2,070
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Food Stamps includes Nutrition Assistance for Puerto Rico. Spending under current law includes the provisions of the fiscal year 1996 Agriculture
appropriations.
\2\ Family Support Payments includes spending on Aid to Families with Dependent Children (AFDC), AFDC related child care, administrative costs for child
support enforcement, net federal savings from child support collections, and the Job Opportunities and Basic Skills Training program (JOBS).
Notes.--Assumes enactment date of August 1, 1996. Estimates will change with later effective date. Details may not add to totals because of rounding.
6. Basis of Estimate: For purposes of this estimate, CBO
assumes that H.R. 2202 will be enacted by August 1, 1996.
Spending subject to appropriations
The following estimates assume that all specific amounts
authorized by the bill would be appropriated for each fiscal
year. For programs in the bill for which authorizations are not
specified, or for programs whose specific authorizations do not
provide sufficient funding, CBO estimated the cost based on
information from the agencies involved. We assumed that few of
the bill's programs would be implemented until fiscal year
1997. (Hence, we estimate that outlays in 1996 would not be
affected by enactment.) Estimated outlays, beginning in 1997,
are based on historical rates for these or similar activities.
The provisions in this bill that affect discretionary
spending would increase costs to the federal government by the
amounts shown in Table 3, assuming appropriation of the
necessary funds. In many cases, the bill authorizes funding for
programs already authorized in the violent Crime Control and
Law Enforcement Act of 1994 (1994 crime bill) or already funded
by fiscal year 1996 appropriations action. For example, the
additional border patrol agents and support personnel in Title
I already were authorized in the 1994 crime bill through fiscal
year 1998. For such provisions, the amounts shown in Table 3
reflect only the cost above funding authorized in current law.
In the most recent continuing resolution enacted for fiscal
year 1996, appropriations for the Department of Justice total
about $14 billion, of which about $1.7 billion is for the INS.
TABLE 3.--SPENDING SUBJECT TO APPROPRIATIONS ACTION
[By fiscal years, in millions of dollars]
----------------------------------------------------------------------------------------------------------------
1996 1997 1998 1999 2000 2001 2002
----------------------------------------------------------------------------------------------------------------
Estimated authorization levels:
Title I:
Additional border patrol agents................. 0 ...... ...... 116 119 123 127
Barrier improvements............................ 0 20 ...... ...... ...... ...... ......
Improved identification cards................... 0 34 34 34 ...... ...... ......
Border patrol training.......................... ...... 0 3 ...... ...... ...... ......
Pilot programs.................................. 0 1 ...... ...... ...... ...... ......
Increased interior enforcement.................. 0 130 260 390 520 530 540
Title II:
Additional U.S. Attorneys....................... 0 8 8 8 8 8 8
Title III:
Increased detention facilities.................. 0 199 220 50 52 53 55
Detention and removal of aliens \1\............. 129 155 155 155 155 155 155
Pay raise for immigration judges................ 0 1 1 1 1 1 1
Title IV:
Additional INS investigators.................... 0 11 11 11 12 12 12
Additional DOL employees........................ 0 12 12 13 13 14 14
Work eligibility pilot program.................. 0 (\2\) (\2\) (\2\) ...... ...... ......
Title V:
Additional asylum officers...................... 0 34 34 35 36 37 38
Visa reimbursement.............................. 0 55 ...... ...... ...... ...... ......
Title VII:
Additional land border inspectors............... 0 36 39 43 44 45 46
-------------------------------------------------------
Total......................................... 129 699 774 856 960 978 996
Estimated outlays....................................... 0 532 637 940 994 956 976
----------------------------------------------------------------------------------------------------------------
\1\ Amounts for this provision are specified in the bill. The amount authorized for fiscal year 1996 was reduced
to reflect $26 million in appropriations already provided.
\2\ Less than $500,000.
Revenues and direct spending
Table 4 details estimated changes in revenues and direct
spending. The most significant changes in direct spending would
result from provisions contained in Title VI of the bill, in
particular, from the provisions changing benefits conferred
through the Supplemental Security Income program, Medicaid, and
the Earned Income Tax Credit.
TABLE 4.--CHANGES IN REVENUES AND DIRECT SPENDING
[By fiscal years, in millions of dollars]
----------------------------------------------------------------------------------------------------------------
1996 1997 1998 1999 2000 2001 2002
----------------------------------------------------------------------------------------------------------------
Revenues:
New Criminal Fines and Forfeiture..... 0 (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
Earned Income Tax Credit.............. 0 14 13 12 13 13 13
---------------------------------------------------------------------
Total Revenus....................... 0 14 13 12 13 13 13
=====================================================================
Direct Spending:
New Criminal Fines and Forfeiture..... 0 (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
Immigration Enforcement Account....... 0 (\1\) (\1\) (\1\) (\1\) (\1\) (\1\)
Supplemental Security Income.......... 0 -10 -80 -160 -260 -370 -670
Food Stamps........................... 0 0 -15 -45 -100 -170 -250
Family Support........................ 0 -1 -13 -23 -48 -63 -78
Medicaid.............................. 0 -5 -110 -240 -390 -570 -830
Earned Income Tax Credit.............. 0 -216 -214 -218 -222 -224 -229
Federal Employee Retirement........... 0 2 4 2 0 0 0
---------------------------------------------------------------------
Total Direct SApending.............. 0 -230 -428 -684 -1,020 -1,397 -2,057
----------------------------------------------------------------------------------------------------------------
\1\ Less than $500,000.
Fines.--The imposition of new and enhanced civil and
criminal fines in H.R. 2202 could cause governmental receipts
to increase, but CBO estimates that any such increase would be
less than $500,000 annually, civil fines would be deposited
into the general fund of the Treasury. Criminal fines would be
deposited in the Crime Victims Fund and would be spent in the
following year. Thus, direct spending from the fund would match
the increase in revenues with a one-year lag.
Forfeiture.--A new forfeiture provision in H.R. 2202 could
lead to more assets seized and forfeited to the United States,
but CBO estimates that any such increase would be less than
$500,000 annually in value. Proceeds from the sale of any such
assets would be deposited as revenues into the Assets
Forfeiture Fund of the Department of Justice and spent out of
that fund in the same year. Thus, direct spending from the
Assets Forfeiture fund would match any increase in revenues.
Immigration enforcement account.--The creation of an
immigration enforcement account in Title III would affect both
direct spending and receipts. Currently, civil fines collected
from violations of certain immigration laws are classified as
revenues for budgetary purposes and deposited into the general
fund of the Treasury. H.R. 2202 would deposit these collections
as offsetting receipts into the immigration enforcement account
and would spend them out of that fund. Thus, direct spending
would increase, but this increase would be less than $500,000
annually.
Legal immigration reform.--H.R. 2202 would reduce legal
immigration levels by roughly 100,000 entries annually. By law,
the costs incurred by INS to oversee legal immigration are
covered by fees it charges, so there is no net impact on the
federal budget. Reducing legal immigration would decrease the
fees collected by INS, so the agency would have to reduce its
costs accordingly, mainly by cutting personnel. INS would
attempt to maintain a balance between fee collections and
costs, as it does now. Over time, any imbalance would be
corrected to achieve a net budgetary impact of zero.
Preinspection stations.--Based on information from INS, CBO
estimates that the costs to establish and maintain the first
five preinspection stations would reach about $40 million
annually, with similar costs for the second five stations.
However, as required by law, costs of this sort would be
covered by increased INS user fees charged to passengers
entering the United States. Such fees would be recorded as
offsetting receipts, and additional spending by the INS would
be considered direct spending. Thus, there would be no net
budgetary impact from any additional preinspection stations.
Supplemental security income.--The SSI program pays
benefits to low-income people with few assets who are aged 65
or older or disabled. According to tabulations by the
Congressional Research Service (CRS), the SSI program for the
aged is the major benefit program with the sharpest contrast in
participation between noncitizens and citizens. The CRS
reported that nearly one-quarter of aliens over the age of 65
receive SSI, versus about 4 percent of citizens. The Social
Security Administration states that about 700,000 legal aliens
collect SSI (although some unknown fraction of those ``aliens''
are really naturalized citizens, whose change in status is not
reflected in program records). About three-quarters of alien
SSI recipients are immigrants legally admitted for permanent
residence, who must serve out a waiting period during which
their sponsor's income is ``deemed'' to them before they can go
on the program. That waiting period was temporarily lengthened
to 5 years in 1994 but is slated to return to 3 years in
October 1996. The other one-quarter of alien recipients of SSI
are refugees, asylees, and PRUCOLs.
H.R. 2202 would have little effect on the eligibility for
SSI or other benefits of legal immigrants who are already in
the U.S., because the bill would not direct the agencies
administering these programs to make any changes in the way
they treat aliens who were legally admitted for permanent
residence before the bill's enactment. Any effect on such
aliens would be indirect. The bill would amend the ``public
charge'' section of the Immigration and Nationality Act to
state that anyone who collected certain benefits within 7 years
of arrival could be deported, and names the programs in which
participation would brand the alien a public charge. No
benefits received before the date of enactment would count
against the 7-year ban. Nor would benefits paid for certain
reasons arising after entry--such as the death or disability of
a breadwinner--count. A public charge ban (for 5, not 7 years
after the alien's entry) is already on the books, but is hardly
ever enforced through deportation. The ban apparently has not
acted as a major deterrent to many aliens' participation in
public assistance programs. CBO does not rule out that the
proposed ``public charge'' language might make some aliens who
are already here fearful of collecting benefits, but views such
psychological effects as a tenuous basis for budget estimates.
For future entrants, though, the bill has real teeth. The
bill's principal effect on the SSI program would be the
proposed lengthening of the deeming period for future entrants.
H.R. 2202 would require the government to draft a new affidavit
of support explicitly telling sponsors that they are liable for
any public assistance benefits provided to the alien.
Furthermore, for immigrants covered by such affidavits, the
deeming period would last until naturalization (if the
immigrant was admitted as a parent of a citizen or legal
resident) or for at least 7 years (if admitted in another
category). CBO assumes that the new forms would be in place by
early 1997 and that significant savings would begin in 2000--
when that first group of entrants would otherwise have
graduated from the 3-year deeming period under current law.
Small savings would occur before 2000, because the bill would
make two other changes in the way deeming now operates in the
SSI program--specifically, by requiring that all income of the
sponsor and spouse be deemed, instead of only a portion of it,
and by repealing the exemption from deeming for aliens who
become disabled after their arrival.
Because the stiffer deeming rules would make little
difference in the near term, they account for just half of the
estimated savings of $1.6 billion in SSI over the entire 1996-
2000 period; nevertheless, they contribute two-thirds of the
estimated savings in fiscal year 2002. H.R. 2202 also proposes
to shave the number of overall immigrant admissions, and would
explicitly limit the number of parents of citizens or legal
residents who may enter the country. Since deeming has proven
to be a quite powerful tool in the SSI program, the proposed
cutback in admissions is largely immaterial to CBO's estimate;
from a dollar standpoint, it matters little whether immigrants
can get into the country but are then barred from SSI, or
whether they cannot get into the country in the first place.
Two other provisions of the bill would generate the
remaining savings in SSI. First, H.R. 2202 would eliminate
eligibility for SSI benefits of aliens permanently residing
under color of law. That label covers such disparate groups as
parolees, aliens who are granted a stay of deportation, and
others with various legal statuses. PRUCOLs currently make up
about 5 percent of aliens on the SSI rolls. CBO assumes that
some would successfully seek to have their classification
changed to another category (such as refugee or asylee) that
would protect their SSI benefits. The remainder, though, would
be barred from the program, generating savings of about $0.5
billion over 7 years.
The second provision would set a statutory ceiling on a
number of refugee admissions, removing that prerogative from
the President. The bill would limit refugee admissions to
75,000 in 1997 and 50,000 a year thereafter. It is impossible
to say how many refugees would be admitted if current policy
remained unchanged, since the ceiling is announced by the
President annually and is affected by geopolitical conditions.
For this estimate, CBO assumed that, under current policy,
refugee admissions would drop from 90,000 in fiscal year 1996
(the ceiling announced by the President) to 75,000 in 1997 and
beyond. Compared with that path, H.R. 2202 would require a
reduction of 25,000 refugee admissions a year after 1997.
Refugees often arrive with little or no money, poor English,
and limited prospects for employment, so it is not surprising
that they tend to rely on welfare at first. Tabulations by the
Office of Refugee Resettlement in the Department of Health and
Human Services indicate that, of refugees who arrived in the
past 5 years, about 7 percent are on SSI, 24 percent on Aid to
Families with Dependent Children (AFDC), and 60 percent on food
stamps. Based on that pattern, CBO estimates that the limits on
refugee admissions in H.R. 2202 would lead to savings in the
SSI program of $0.1 billion over the 1998-2002 period.
Food stamps.--The estimated savings in the Food Stamp
program--$0.6 billion over 7 years--are considerably smaller
than those in SSI but have essentially the same explanations.
The Food Stamp program imposes a 3-year deeming period.
Therefore, lengthening the deeming period (to at least 7 years
for most future entrants and even longer for some) would save
money in food stamps beginning in 2000. Restrictions on the
number of legal entrants and particularly of refugees admitted
into the country account for the rest of the savings. The Food
Stamp program already denies benefits to most PRUCOLs, so no
additional savings are estimated from that source.
Statistics compiled by CRS suggest that about 16 percent of
noncitizens live in households that receive food stamps, not so
sharply different from the 12 percent participation rate of
citizens. Other data on them, though, are sketchier than data
on aliens in the SSI program. For example, CBO lacks
information on how long aliens (other than refugees) are in the
country before going on food stamps, why they file for
benefits, and how many of them have financial sponsors--
information that would have helped greatly in estimating the
effects of H.R. 2202.
Family support.--H.R. 2202 would lead to small savings in
the AFDC program--again, from essentially the same provisions
that would generate savings in SSI and food stamps. CRS
tabulations show that noncitizens are only slightly more likely
than citizens to participate in the AFDC program (6 percent of
noncitizens, versus 5 percent of citizens). Often, the
household consists of a noncitizen parent and a citizen child
or children--in which case H.R. 2202 would directly affect only
the parent's eligibility. As for food stamps, information on
sponsorship, length of time in the country, and reason for
participation by aliens in AFDC is scanty.
The AFDC program already deems income from sponsors to
aliens for three years after the alien's arrival. H.R. 2202
would lengthen that period to 7 years in most cases. The $0.2
billion in total savings over the 1997-2002 period would stem
from lengthening the deeming period, restricting the number of
admissions of immigrants and refugees, and ending the
eligibility of PRUCOLs for AFDC benefits.
Medicaid.--H.R. 2202 would erect several barriers to
Medicaid eligibility for future entrants into this country. In
most cases, AFDC or SSI eligibility carries Medicaid
eligibility along with it. By restricting aliens' access to
those two cash programs, H.R. 2202 would generate savings in
Medicaid. Medicaid now has no deeming requirement at all; that
is, program administrators do not consider a sponsor's income
when they gauge the alien's eligibility for benefits.
Therefore, it is possible for a sponsored alien to qualify for
Medicaid even before he or she has satisfied the SSI waiting
period. H.R. 2202 would change that by requiring that every
means-tested program weigh the income of a sponsor who signed
one of the new, legally enforceable affidavits of support.
Under current law, PRUCOLs are specifically eligible for
Medicaid; H.R. 2202 would make them ineligible.
Finally, H.R. 2202 would bar immigration by parents of
citizens and legal residents unless a sponsor could document
that the parent would be covered by a private insurance policy
that provides coverage similar to Medicare plus long-term care
protection equivalent to Medicaid. Such coverage would be
extremely expensive if it even exists. That requirement was not
critical to CBO's estimate of Medicaid savings in H.R. 2202,
because CBO judged that the other SSI provisions and the
deeming requirements would effectively bar most elderly
entrants from the Medicaid program over the 1997-2002 period.
The estimate assumes that the new, legally enforceable
affidavits will be in place by early 1997. If that assumed
timetable were to slip, perhaps because of the sheer difficulty
of crafting acceptable criteria for insurance coverage,
estimates of savings in other programs that also hinge on the
new affidavits could also slip. If enforced stringently, the
insurance requirement could effectively forbid immigration of
all except the wealthiest parents of U.S. residents.
CBO estimated the savings in Medicaid by first estimating
the number of aliens who would be barred from the SSI and AFDC
programs by other provisions of H.R. 2202. CBO then added
another group--dubbed ``noncash beneficiaries'' in Medicaid
parlance because they participate in neither of the two cash
programs. CBO assumed that the noncash participants who would
be affected by H.R. 2202 essentially fall into two groups. One
is the group of elderly (and less importantly, disabled) aliens
who enter in 1997 and beyond and who could, under current law,
seek Medicaid even before they satisfied the 3-year wait for
SSI, the second is poor children and pregnant women who could,
under current law, qualify for Medicaid even if they do not get
AFDC. CBO then multiplied the assumed number of aliens affected
times an average Medicaid cost appropriate for their group.
That average cost is significantly higher for an aged or
disabled person than for a younger mother or child. In
selecting an average cost, CBO took into account the fact that
relatively few aged or disabled aliens receive expensive long-
term care in Medicaid-covered institutions, but that on the
other hand few are eligible for Medicare as their primary
payer. The resulting estimate of Medicaid savings was then
trimmed by 25 percent to reflect the fact that--if the aliens
in question were barred from regular Medicaid--the federal
government would likely end up paying more in reimbursements
for emergency care and for uncompensated care. The resulting
savings in Medicaid would be negligible at first but would
reach an estimated $0.8 billion by 2002, totaling $2.1 billion
over the 1997-2002 period.
One of the few benefits for which illegal aliens now
qualify is emergency Medicaid under section 1903(v) of the
Social Security Act. H.R. 2202 contains a provision that is
apparently intended to make the federal government responsible
for the entire cost of emergency Medicaid services, instead of
splitting the cost with states as under the current matching
requirements. However, the drafting of the provision leaves
several legal and practical issues dangling. H.R. 2202 would
not repeal the current provision in section 1903(v). It also
orders the Immigration and Naturalization Service to verify the
identity of recipients in order for the states to qualify for
the proposed reimbursement. Emergency patients often show up
with no insurance and little other identification; therefore,
if the INS drafted stringent rule for verification, it is
possible that hardly any providers could collect under this
section. On the other hand, if the INS required only minimal
identification, providers would have an incentive to classify
as many patients as possible in this category because that
would maximize their federal reimbursement. Also unclear is
whether any reimbursement would be subject to the usual limits
on allowable charges in Medicaid, or whether providers could
seek reimbursement for their entire cost.
Earned income tax credit.--H.R. 2202 would deny eligibility
for the Earned Income Tax Credit (EITC) to workers who are not
authorized to be employed in the U.S. In practice, that
provision would work by requiring valid Social Security numbers
to be filed for the primary and secondary taxpayers on returns
that claim the EITC. A similar provision was contained in
President Clinton's 1996 budget proposal and in last fall's
reconciliation bill. The Joint Committee on Taxation estimates
that the provision would reduce the deficit by approximately
$0.2 billion a year. Most of this reduction would appear as
lower outlays for the refundable portion of the credit, but
there would also be a small increase in revenues.
Federal employee retirement.--H.R. 2202 would have a small
effect on the net outlays of federal retirement programs.
Section 533 and 356 of the bill would permit certain civilian
and military retirees to collect their full pensions in
addition to their salary if they are reemployed by the
Department of Justice to help tackle a backlog of asylum
applications or support the Institutional Hearing Program.
Under current law, an employing agency must deduct the annuity
amount from the paycheck of a reemployed civil service
annuitant and remit that amount to the retirement trust fund.
The retirement fund, in effect, makes no net annuity payments
for the period of the annuitant's reemployment. (Rules
governing the reemployment of military retirees are slightly
more liberal, but still require forfeiture of part of the
annuity.) Under the bill, the salary reduction requirement
would be waived for up to 24 months of reemployment. CBO
estimates that about 200 annuitants would be affected, and that
net outlays would increase by $2 million to $4 million a year
in 1997 through 1999.
Other programs.--Entitlement or direct spending programs,
other than those already listed, are estimated to incur
negligible costs or savings over the 1997-2002 period as a
consequence of H.R. 2202. The child nutrition program would be
specifically exempt from H.R. 2202's ban on benefits to illegal
aliens. It is possible that child nutrition would fall under
the requirement that all means-tested programs develop sponsor-
to-alien deeming provisions for future entrants; however, the
applicability of that section is ambiguous, and it would take
time to craft deeming rules and implement them in school
systems nationwide in any case. The foster care program does
not appear by name on any specific list of exemptions in H.R.
2202, but CBO assumes that it would be exempt under provisions
protecting battered children. CBO estimates that the bill would
not lead to any significant savings in the student loan
program. The Title XX social services program, an entitlement
program for the states, is funded at a fixed dollar amount set
by the Congress; the eligibility or ineligibility of aliens for
services would not have any direct effect on those dollar
amounts.
7. Pay-as-you-go considerations: Section 252 of the
Balanced Budget and Emergency Deficit Control Act of 1985 sets
up pay-as-you-go procedures for legislation affecting direct
spending or receipts through 1998. Because several sections of
this bill would affect receipts and direct spending, pay-as-
you-go procedures would apply. These effects are summarized in
the following table.
------------------------------------------------------------------------
1996 1997 1998
------------------------------------------------------------------------
Change in outlays................ 0 -230 -428
Change in receipts............... 0 14 13
------------------------------------------------------------------------
8. Estimated impact on state, local, and tribal
governments: CBO has not completed its review of possible
mandates in H.R. 2202. This section represents a preliminary
analysis of the mandates contained in the bill and their likely
impacts on the budgets of state, local, and tribal governments.
A comprehensive mandate cost statement will be provided when
CBO's analysis is completed.
H.R. 2202 contains a number of mandates on state and local
governments. The major mandates would require that state and
local governments:
Deny non-legal aliens, including those permanently
residing under color of law, eligibility for all means-
tested state and local benefit programs except
emergency Medicaid, immunizations, disaster relief, and
family violence services;
Distribute means-tested benefits only through
individuals who are themselves eligible for the
program, at least on the basis of their immigration
status; and
Impose no restrictions on the exchange of information
between governmental entities or officials and the
Immigration and Naturalization Service regarding the
immigration status of individuals.
In addition, H.R. 2202 would require employers, including
state and local government personnel offices, in at least five
states to confirm through a toll-free telephone number (or
other electronic media), the identity, Social Security number,
and work eligibility of all employees within three days of
hiring.
CBO's preliminary conclusion is that the total net costs of
the bill's mandates on state and local governments would not
exceed the $50 million annual threshold established in the
Unfunded Mandates Reform Act.
9. Estimated impact on the private sector: H.R. 2202
contains several private sector mandates. Although CBO has not
completed its analysis of impacts on the private sector, our
preliminary analysis indicates that the expected direct costs
of private sector mandates contained in H.R. 2202 would exceed
$100 million a year.
Generally, speaking, the private sector mandates in H.R.
2202 lie in four areas: (1) provisions that affect aliens
within the borders of the United States, (2) provisions that
affect individuals who sponsor aliens and execute affidavits of
support, (3) provisions that affect the transportation
industry, and (4) provisions that affect employers of aliens.
In addition, a few provisions would reduce existing mandates on
employers and offset marginally some of the costs imposed by
new mandates.
Specifially, we expect that the direct costs imposed on
sponsors of aliens who execute affidavits of support to exceed
$100 million a year within the first five years that the
mandate is in effect. Those are costs now borne by the federal
government and state and local governments for the provision of
benefits under public assistance programs. We also expect that
some direct costs would be imposed on aliens within U.S.
borders, the transportation industry, and the employers of
aliens but that those costs would not be significant.
10. Previous CBO estimate: In 1995 CBO prepared many
estimates of the effects of restricting aliens' eligibility for
public assistance in the context of the debate over welfare
reform. Examples include CBO's estimates of H.R. 4 (the welfare
reform bill) and of H.R. 2491 (the reconciliation bill), both
of which were eventually vetoed. In general, however, those
proposals did not draw a sharp distinction between aliens
already in the country and future entrants. CBO has not
previously estimated the effects of restrictions on public
assistance like those in H.R. 2202 that are essentially
targeted at future entrants.
11. Estimate prepared by: Federal Cost Estimate: Mark
Grabowicz, Wayne Boyington, Sheila Dacey, Dorothy Rosenbaum,
Robin Rudowitz, Kathy Ruffing, and Stephanie Weiner.
State and Local Government Estimate: Karen McVey and Leo
Lex.
Private Sector Mandate Estimate: Matthew Eyles.
12. Estimate approved by: Paul N. Van de Water, Assistant
Director, for Budget Analysis.
Inflationary Impact Statement
Pursuant to clause 2(l)(4) of rule XI of the Rules of the
House of Representatives, the Committee estimates that H.R.
2202 will have no significant inflationary impact on prices and
costs in the national economy.
Section by Section Analysis
TITLE I--DETERRENCE OF ILLEGAL IMMIGRATION THROUGH IMPROVED BORDER
ENFORCEMENT, PILOT PROGRAMS, AND INTERIOR ENFORCEMENT
Subtitle A--Improved Enforcement at Border
Sec. 101.--Border patrol agents and support personnel
Subsection (a) provides that the number of border patrol
agents shall be increased by 1000 per year from 1996 through
2000. Subsection (b) provides that the number of support
personnel for border enforcement, investigations, detention and
deportation, intelligence, information and records, legal
proceedings, and management and administration shall be
increased beginning in fiscal year 1996 by 800 positions above
the number existing as of September 30, 1994. Subsection (c)
requires the deployment of new border patrol agents to border
sectors in proportion to the level of illegal entries in the
sectors.
Sec. 102.--Improvement of barriers at border
Subsection (a) provides that the Attorney General and the
Commissioner of the Immigration and Naturalization Service
(INS) shall install additional physical barriers and roads to
deter illegal crossings into the U.S. in areas of high illegal
entry.
Subsection (b) provides that in carrying out subsection (a)
in the San Diego sector, the Attorney General shall provide for
multiple fencing, separated by roads, for the 14 miles eastward
of the Pacific Ocean. The Attorney General shall promptly
acquire necessary easements for the fencing and roads. There
are authorized to be appropriated $12,000,000 for these fences
and roads.
Subsection (c) provides for a waiver of the Endangered
Species Act to the extent necessary to expeditiously complete
construction of the roads and fences under this section.
Subsection (d) requires the Attorney General to forward
deploy existing border patrol agents in those border areas with
high levels of illegal entry and to submit a report within 6
months of the date of enactment regarding the progress and
effectiveness of such forward deployments.
Sec. 103.--Improved border equipment and technology
This section authorizes the Attorney General to acquire
Federal equipment, including aircraft, helicopters, vehicles,
and night vision equipment, to improve the deterrence of
illegal immigration into the U.S. Some of this material may be
acquired from the Department of Defense. Where necessary for
the proper utilization of such equipment, the Committee
believes that it would be appropriate for military personnel to
provide training to Border Patrol agents and other immigration
officers. Responsibility for operation of material acquired by
the Attorney General would remain in the hands of employees of
the Department of Justice.
Sec. 104.--Improvement in border crossing identification card
This section amends the definition in section 101(a)(6) of
the Immigration and Nationality Act 121 of the ``border
crossing identification card.'' The amendment requires that
within 6 months of the date of enactment, all new border
crossing ID cards (which are issued only to aliens) include a
biometric identifier, such as a handprint or fingerprint of the
alien. The amendment also requires that within 36 months, an
alien cannot be admitted to the United States on the basis of
such a card unless the biometric identifier on the card matches
the appropriate biometric characteristic of the alien. The
amendment requires that within a year after implementing the
requirement for new ID cards, the Attorney General shall report
to Congress on the impact of issuing the new cards on border
crossing activities.
\121\ Unless otherwise specified, all references to existing
statutes are to sections of the Immigration and Nationality Act.
---------------------------------------------------------------------------
Sec. 105.--Civil penalties for illegal entry
This section amends section 275 by redesignating
subsections (b) and (c) and inserting a new subsection (b). The
new subsection provides that an alien apprehended while
entering or attempting to enter the U.S. illegally shall be
subject to a civil penalty of not less than $50 nor more than
$250. The penalties shall be doubled in the case of an alien
previously subject to such penalties.
Sec. 106.--Prosecution of aliens repeatedly re-entering the united
states unlawfully
This section authorizes the appropriations of such sums as
may be necessary to provide for detention and prosecution of
any alien who has illegally reentered the U.S. if the alien has
illegally reentered the U.S. on two previous occasions. This
section also states the sense of Congress that the Attorney
General use available resources to detain and prosecute such
aliens.
Sec. 107.--Inservice training for the border patrol
This section amends section 103 of the INA by adding a new
subparagraph (e), to provide for programs that would train
Border Patrol agents to ensure and safeguard the constitutional
and civil rights, personal safety, and human dignity of aliens
and citizens with whom they come into contact. The annual
report of the INS shall include a description of the steps
taken to carry out this provision.
Subtitle B--Pilot Programs.
Sec. 111.--Pilot program on interior repatriation
This section requires the Attorney General, after
consultation with the Secretary of State, to establish a pilot
program for up to 2 years to deter multiple illegal entries
into the U.S., which may include interior repatriation, third
country repatriation, and other disincentives to multiple
unlawful entries. Not later than 30 months after the date of
enactment, the Attorney General and Secretary of State shall
report on the pilot program, including whether the program or
any part should be extended or made permanent.
Sec. 112.--Pilot program on use of closed military bases for the
detention of inadmissible or deportable aliens
This section requires the Attorney General and the
Secretary of Defense to establish a pilot program for up to 2
years to determine the feasibility of using military bases
closed because of a base closure law as detention centers for
the Immigration and Naturalization Service. The Attorney
General and the Secretary of State are to submit a report not
later than 30 months after the date of enactment to the
Committees on the Judiciary and the Committees on Armed
Services of the House of Representatives and the Senate.
Sec. 113.--Pilot program to collect records of departing passengers
This section requires the Commissioner of the INS, within
180 days after the date of enactment, to establish a pilot
program in which INS officers would collect a record of
departure for every alien departing the U.S. and match the
record of departure with the record of the alien's arrival in
the U.S. The program shall be operated in not less than 3 of
the 5 air ports of entry with the heaviest volume of arriving
international air traffic. Instances of visa overstay
identified through the pilot program shall be included in INS
and Department of State databases. Not later than 2 years after
the pilot program is implemented, the Commissioner shall submit
a report on the number of departure records collected and other
statistics, the estimated cost of establishing a national
system to verify the departure from the U.S. of aliens admitted
as nonimmigrants, and specific recommendations for the
establishment of such a system.
Subtitle C--Interior Enforcement
Sec. 121.--Increase in personnel for interior enforcement
This section authorizes the appropriation of funds to
increase the number of investigators and other enforcement
personnel deployed in the interior of the United States to a
level adequate to properly investigate violations of and
enforce immigration law. It is the intent of this section to
include among interior enforcement personnel inspectors at
United States airports, as well as INS investigators and
detention and deportation officers.
TITLE II--ENHANCED ENFORCEMENT AND PENALTIES AGAINST ALIEN SMUGGLING;
DOCUMENT FRAUD
Subtitle A--Enhanced Enforcement and Penalties Against Alien Smuggling
This subtitle includes provisions in several immigration
reform bills introduced in the 103rd Congress and the 104th
Congress, and in the immigration reform legislation submitted
by the Clinton Administration in May 1995.
Sec. 201--Wiretap authority for alien smuggling investigations
This section amends 18 U.S.C. 2516(1) to give INS the
authority under that section to use wiretaps in investigations
of alien smuggling and document fraud violations under section
1028 (production of false identification documents), 1541
(unauthorized issuance of passports), 1542 (false statements in
passport applications), 1546 (fraud and misuse of visas,
permits, and other documents) of title 18, or sections 274,
277, or 278 of the INA (smuggling of aliens).
Sec. 202--Racketeering offenses relating to alien smuggling
This section amends 18 U.S.C. 1961(1) to include as
racketeering offenses acts indictable under: section 1028
(fraud and related activity in connection with identification
documents), section 1542 (false statement in application and
use of passport), 1543 (forgery and false use of passport),
1544 (misuse of passport), 1546 (fraud and misuse of visas,
permits, and other documents), and 1581-1588 (peonage and
slavery), and sections 274, 277, and 278 of the INA (alien
smuggling and related offenses).
Sec. 203--Increased criminal penalties for alien smuggling
Subsection (a) amends section 274(a)(1)(B)(i) to provide
that any person who violates the prohibitions in
274(a)(1)(A)(ii)-(iv) against transporting, harboring, or
inducing an illegal alien to come to the U.S. may be imprisoned
for up to 10 years if the offense was committed for purposes of
commercial advantage or private financial gain.
Subsection (a) also adds a new subparagraph (C) to section
274(a)(1), providing that a person who engages in a conspiracy
to commit or aids and abets in the commission of offenses under
section 274(a)(1)(A) shall be fined and imprisoned for up to 10
years (alien smuggling) or up to 5 years (transportation,
harboring, inducement).
Subsection (b) amends section 274(a)(2)(B) (bringing into
the U.S. an alien not authorized to enter) by adding a new
clause (iv) to make it an aggravating factor if the offense is
committed with the intent or reason to believe that the alien
will commit a crime punishable by imprisonment for more than
one year. This subsection also amends this subparagraph to
provide that if any of the aggravating factors are present, the
violator shall be fined under title 18 and imprisoned for not
less than 3 years nor more than 10 years.
Subsection (c) amends section 274(a)(2) to provide that the
punishments for unlawfully bringing an alien to the U.S. shall
apply to each alien with respect to whom a violation occurs,
replacing the current provision that the punishments shall
apply to ``each transaction,'' regardless of the number of
aliens involved.
Sec. 204--Increased number of assistant United States Attorneys
This section provides that the number of Assistant U.S.
Attorneys shall be increased in fiscal years 1996 by 25, and
that such new Assistant U.S. Attorneys shall prosecute persons
involved in smuggling or harboring of illegal aliens, or other
crimes involving illegal aliens.
Sec. 205--Undercover investigation authority
This section amends title II of the INA to add a new
section 294, providing authority for the INS to use
appropriated funds for the establishment and operation of
undercover proprietary corporations or business entities.
Subtitle B--Deterrence of Document Fraud
Sec. 211--Increased criminal penalties for fraudulent use of
Government-issued documents
Subsection (a) amends 18 U.S.C. 1028(b)(1), relating to
fraud and misuse of government-issued identification documents,
to increase the maximum term of imprisonment from 5 to 15
years. The sentence is increased 20 years if the offense is
committed to facilitate a drug-trafficking crime, and to 25
years if committed to facilitate an act of international
terrorism.
Subsection (b) directs the Sentencing Commission promptly
to increase the basic offense levels for document fraud
offenses under sections 1028(a) and 1546(a) of title 18:
offense level 15 if the offense involved 100 or more documents;
level 20 if the offense involved 1,000 or more documents or was
done to facilitate a drug offense or aggravated felony, and
level 25 if done to provide documents to persons engaged in
terrorist activity or racketeering enterprises.
Sec. 212.--New civil penalties for document fraud
Subsection (a) amends section 274C(a) by adding a new
paragraph (5) to make it unlawful for any person knowingly or
in reckless disregard of the fact that the information is false
or does not relate to the applicant, to prepare, file, or
assist another person in preparing or filing, documents which
are falsely made for the purpose of satisfying a requirement of
the INA. ``Falsely made'' shall include a document submitted
with knowledge or reckless disregard of the fact that the
document contains a false, fictitious, fraudulent statement or
material misrepresentation, has no basis in law or fact, or
fails to state a material fact.
Subsection (b) makes conforming amendments to section
274C(d)(3).
Subsection (c) provides that the amendment shall apply to
assistance, preparation, or submission of documents or
applications occurring on or after the date of enactment.
Sec. 213.--New civil penalty for failure to present documents and for
preparing immigration documents without authorization
Subsection (a) amends section 274C(a) by adding a new
paragraph (6) to apply civil penalties against an alien who
presents upon boarding a common carrier a document relating to
the alien's eligibility to be admitted to the United States and
then fails to present the document upon arrival. The Attorney
General may waive these penalties if the alien is subsequently
granted asylum. Subsection (a) also adds a new paragraph (7) to
apply civil penalties against any person who prepares or
assists in preparing immigration forms, petitions, and
applications who is not authorized to represent aliens or to
assist in the preparation and submission of such forms.
Subsection (b) provides that these amendments shall apply
to individuals who board a common carrier on or after 30 days
after enactment.
Sec. 214. New criminal penalties for failure to disclose role as
preparer of false application for asylum and for preparing
certain post-conviction applications
This section amends section 274C of the INA by adding a new
subsection (e), providing that a person who fails to disclose
or conceals his role in preparing, for fee or other
remuneration, a false application for asylum shall be
imprisoned for not less than 2 years nor more than 5 years and
also shall be prohibited from preparing, whether or not for fee
or other remuneration, any other such application for at least
5 years and not more that 15 years. A person convicted under
this section who later prepares or assists in preparing an
application for asylum, regardless of whether for a fee or
other remuneration, is subject to imprisonment of not less than
5 nor more than 15 years and is prohibited from preparing any
other such application.
Sec. 215.--Criminal penalty for knowingly presenting document which
fails to contain reasonable basis in law or fact
This section amends 18 U.S.C. 1546(a) to provide that the
penalty for knowingly presenting a document which contains a
false statement also extends to a document which fails to
contain any reasonable basis in law or fact.
Sec. 216.--Criminal penalties for false claim to citizenship
This section amends 18 U.S.C. 1015 by adding new
subparagraphs (e) and (f). New subparagraph (e) provides for
criminal penalties against any person who makes a false claim
to United States citizenship or nationality for the purpose of
obtaining, for himself or any other person, any Federal benefit
or service or employment in the United States. New subsection
(f) provides for criminal penalties against any person who
makes a false claim to United States citizenship in order to
vote or register to vote in any Federal, State, or local
election, including an initiative, recall, or referendum.
Subtitle C--Asset Forfeiture for Passport and Visa Offenses
Sec. 221.--Criminal forfeiture for passport and visa related offenses
This section amends 18 U.S.C. 982(a) by adding a new
paragraph (6), providing that a person who is convicted of a
violation of or of a conspiracy to violate sections 1541, 1542,
1543, 1544, or 1546 of title 18, or section 1028 of title 18 if
committed in connection with passport or visa issuance or use,
shall forfeit any property, real or personal, which was used or
intended to be used in facilitating the violation, and any
property constituting, derived from, or traceable to the
proceeds of the violation.
Sec. 222.--Subpoenas for bank records
This section amends section 986(a) of title 18 to permit
the issuance of subpoenas for bank records in investigations of
offenses under sections 1028, 1541, 1542, 1543, 1544, and 1546
of title 18.
Sec. 223. Effective date
This provides that the amendments made by this subtitle
take effect on the first day of the first month that begins
more than 90 days after the date of enactment.
TITLE III--INSPECTION, APPREHENSION, DETENTION, ADJUDICATION, AND
REMOVAL OF INADMISSIBLE AND DEPORTABLE ALIENS
Subtitle A--Revision of Procedures for Removal of Aliens
Sec. 300.--Overview of changes in removal procedures
This section provides an overview of changes made in the
procedures for inspection, exclusion, apprehension, and
deportation of aliens under the Immigration and Nationality
Act.
Sec. 301.--Treating persons present in the United States without
authorization as not admitted
Subsection (a) of this section amends section 101(a)(13) of
the INA by replacing the definition of ``entry'' with a
definition for ``admission'' and ``admitted'': the entry of an
alien into the United States after inspection and authorization
by an immigration officer. An alien who is paroled under
section 212(d)(5) shall not be considered to have been
admitted. With certain exceptions (specified below) a returning
lawful permanent resident alien (LPR) is not considered to be
seeking admission.
Comment.--This subsection is intended to replace certain
aspects of the current ``entry doctrine,'' under which illegal
aliens who have entered the United States without inspection
gain equities and privileges in immigration proceedings that
are not available to aliens who present themselves for
inspection at a port of entry. Hence, the pivotal factor in
determining an alien's status will be whether or not the alien
has been lawfully admitted. Parolees under INA section
212(d)(5), who are not considered to have made an ``entry''
under current law,122 will likewise not be considered to
have been admitted under this new definition. Finally, this
section preserves a portion of the Fleuti doctrine 123 by
stating that a returning lawful permanent resident shall not be
regarded as seeking admission unless the alien has relinquished
lawful permanent resident status; has engaged in criminal
activity after having left the U.S.; has departed the U.S.
while under removal or extradition proceedings; or has been
convicted of an aggravated felony, unless since such conviction
the alien has been granted relief under new section 240A(a)
(cancellation of removal for certain aliens lawfully admitted
for permanent residence). However, this section intends to
overturn certain interpretations of Fleuti 124 by stating
that a returning lawful permanent resident alien is seeking
admission if the alien is attempting to enter or has entered
the United States without inspection and authorization by an
immigration officer.
\122\ See Leng May Ma v. Barber, 357 U.S. 185 (1958); INA
Sec. 212(d)(5), 8 U.S.C. Sec. 1182(d)(5).
\123\ See Rosenberg v. Fleuti, 374 U.S. 449 (1963) (lawful
permanent resident returning from abroad not considered to have made a
new ``entry'' if trip was ``innocent, casual, and brief'').
\124\ See, e.g., Matter of Romero, (BIA, Dec. 19, 1990).
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Subsection (b) adds a new paragraph (9) to subsection
212(a) (grounds of inadmissibility). The new paragraph states
in subparagraph (A) that an alien who is present in the U.S.
without being admitted or paroled, or who has arrived in the
U.S. at any time or place other than as designated by the
Attorney General, is inadmissible. Subparagraph (B) provides
that the grounds of inadmissibility shall not apply if: (I) the
alien qualifies for immigrant status as the spouse or child of
a United States citizen or lawful permanent resident; (II) the
alien or the alien's child has been battered or subject to
extreme cruelty; and (III) there was a substantial connection
between the cruelty or battery and the alien's unlawful entry
into the United States. As a matter of transition, the
requirements under (II) and (III) shall not apply if the alien
establishes that he or she first entered the United States
prior to the effective date of Title III of this legislation,
as set forth in section 309(a).
Comment.--This subsection will conform the grounds of
inadmissibility under section 212(a) with the new doctrine of
``admission'' established in section 301(a) of the bill.
Currently, aliens who have entered without inspection are
deportable under section 241(a)(1)(B). Under the new
``admission'' doctrine, such aliens will not be considered to
have been admitted, and thus, must be subject to a ground of
inadmissibility, rather than a ground of deportation, based on
their presence without admission. (Deportation grounds will be
reserved for aliens who have been admitted to the United
States.)
The exception in subparagraph (B) will ensure that this new
ground of inadmissibility does not apply to certain battered or
abused alien spouses and children, where the alien's illegal
entry is substantially connected to the battery or abuse. The
exception will apply to alien spouses and children who, due to
the amendments to section 204(a)(1)(A) made by section 40701 of
the Violent Crime Control and Law Enforcement Act of 1994, are
eligible to petition for immigrant visas because they have been
battered or subject to extreme cruelty as defined in that
section, and who have been battered or subject to extreme
cruelty as defined in subparagraph (B) if the alien's unlawful
entry was substantially connected to such battery or cruelty.
The transition provision will ensure that aliens who were
granted self-petition rights under section 40701 of VCCLEA and
who were first present in the U.S. prior to the effective date
of this title need meet no other criteria in order to be
exempted from this new ground of inadmissibility.
Subsection (c) revises paragraph (6) of section 212(a)
(inadmissibility for aliens previously removed from the United
States). Current paragraph (6)(A) imposes a 1-year bar to
admission for an alien ordered excluded and deported from the
United States, and current paragraph (6)(B) imposes a 5-year
bar to admission for an alien deported from the United States,
except in the case of an alien convicted of an aggravated
felony, in which case the bar is for 20 years. Revised
paragraph (6)(A)(i) provides that an alien ordered removed
under revised section 235(b)(1), or at the end of proceedings
under new section 240 that were initiated upon the alien's
arrival in the United States, is inadmissible for a period of 5
years. Revised paragraph (6)(A)(ii) provides that an alien
otherwise ordered removed from the United States shall be
barred from admission for 10 years (or permanently in the case
of an alien convicted of an aggravated felony). These bars to
readmission can be waived (as in current law) if the Attorney
General has given prior consent to the alien's reapplying for
admission.
Revised paragraph (6)(B) provides that an alien unlawfully
present in the United States for an aggregate period totalling
1 year is inadmissible unless the alien has remained outside of
the United States for 10 years. No period of time in which the
alien was present in the United States as a minor under the age
of 18, as a bona fide applicant for asylum under section 208,
as an alien authorized to be employed in the United States, or
as a beneficiary of family unity protection, shall count
towards the aggregate 1-year period. This bar shall not apply
to an alien described in new section 212(a)(9)(B) (battered
spouse or child). An alien may be granted a 3-month extension
if the alien applies for such extension prior to the expiration
of the 1-year period and the failure to extend the period would
constitute extreme hardship to the alien. The Attorney General
may waive this ground of inadmissibility if the Attorney
General determines that admission of the alien would
substantially benefit a specifically defined national interest
or, in the case of an alien who is the spouse, parent, or child
of a United States citizen of lawful permanent resident, for
humanitarian purposes, to assure family unity, or when it is
otherwise in the public interest.
Subsection (d) revises section 212(i) to provide that the
ground of inadmissibility under section 212(a)(6)(C) (fraud and
misrepresentation) may be waived in the case of a spouse, son,
or daughter of a United States citizen or, in the case of a
spouse, son, or daughter of a lawful permanent resident, if the
refusal of admission would result in extreme hardship to the
lawfully resident spouse or parent.
Comment.--The intent of this amendment is to strengthen
penalties against immigration fraud by making waiver of this
ground of inadmissibility available only to members of nuclear
families, and to apply an extreme hardship requirement in the
case of family members of lawful permanent residents.
Subsection (e) amends redesignated section 212(a)(10) by
adding a new subparagraph (D), making inadmissible any alien
who had previously renounced United States citizenship for the
purpose of avoiding taxation.
Subsection (f)(1) amends section 212(a)(1)(A) by adding a
new clause (ii), making inadmissible any alien who seeks
immigration as an immigrant who does not present evidence of
vaccination against mumps, measles, rubella, polio, tetanus and
diphtheria toxoids, pertussis, influenza type B and hepatitis
B, and any other vaccinations recommended by the Advisory
Committee for Immunization Practices.
Subsection (f)(2) amends section 212(g) to make conforming
amendments and to add a new paragraph (3), providing that the
new exclusion ground related to vaccinations may be waived if
the alien receives the required vaccination or if a civil
surgeon or similar official designated in 42 CFR 34.2 certifies
that the vaccination would not be medically appropriate.
The foregoing amendments shall apply to applicants for
immigrant visas or adjustment of status filed after September
30, 1996. The Committee anticipates that the INS and the State
Department will provide notification to persons seeking
admission to the U.S. of the need to obtain the required
vaccinations.
Subsection (g) conforms references in section 241(a)
(grounds of deportability) to reflect the change in
nomenclature in section 212(a) from ``excludable'' to
``inadmissible.'' Subparagraph (B) of paragraph 241(a)(1)
(entry without inspection) will be amended to state that an
alien present in the United States in violation of law is
deportable. The current category of persons who are deportable
because they have made an entry without inspection will, under
subsection (c) of this section, be considered inadmissible
under new paragraph (9) of subsection 212(a).
Sec. 302.--Inspection of aliens; expedited removal of inadmissible
arriving aliens; referral for hearing (revised section 235)
This section will amend section 235 of the INA, regarding
the inspection of aliens arriving in the U.S.
Applicants for admission.--New section 235(a) provides that
an alien present in the United States who has not been admitted
to the U.S. (see Section 301(a) of this bill), who arrives at
the United States, whether or not at a designated port of
arrival, or who is brought to the United States after having
been interdicted in international or United States waters,
shall be deemed an applicant for admission.
An arriving alien who is a stowaway is not eligible to
apply for admission or to be admitted and shall be ordered
removed upon inspection by an immigration officer. A stowaway
shall not be eligible to apply for asylum in the United States
unless the stowaway establishes a credible fear of persecution
pursuant to the expedited review process in section 235(b)(1).
Aliens seeking admission, readmission, or transit through
the United States shall be inspected by an immigration officer,
who shall have the same authority to take statements and
receive evidence as under current section 235 of the INA. An
alien applying for admission may, at the discretion of the
Attorney General, be permitted to withdraw the application for
admission and depart immediately from the United States.
New section 235(b) establishes new procedures for the
inspection and in some cases removal of aliens arriving in the
United States.
Expedited removal of arriving aliens.--New paragraph (b)(1)
provides that if an examining immigration officer determines
that an alien is inadmissible under section 212(a)(6)(C) (fraud
or misrepresentation) or 212(a)(7) (lack of valid documents),
the officer may order the alien removed without further hearing
or review, unless the alien states a fear of persecution or a
desire to apply for asylum.
An alien who states a fear of persecution or a wish to
apply for asylum shall be referred for interview by an asylum
officer, who is an immigration officer who has had professional
training in asylum law, country conditions, and interview
techniques. If the officer finds that the alien has a credible
fear of persecution, the alien shall be detained for further
consideration of the application for asylum. If the alien does
not meet this standard, and the officer's decision is upheld by
a supervisory asylum officer, the alien will be ordered
removed. An alien may consult with a person of his or her
choosing before the interview, at no expense to the Government
and without delaying the interview. A ``credible fear of
persecution'' means that it is more probable than not that the
alien is telling the truth and the alien has a reasonable
possibility of establishing eligibility for asylum.
There is no administrative review of a removal order
entered into under this paragraph, but an alien claiming under
penalty of perjury to be lawfully admitted for permanent
residence shall be entitled to administrative review of such an
order. An alien ordered removed under this paragraph may not
make a collateral attack against the order in a prosecution
under section 275(a) (illegal entry) or 276 (illegal reentry).
Inspection of other arriving aliens.--New paragraph (b)(2)
provides that an alien determined to be inadmissible by an
immigration officer (other than an alien subject to removal
under paragraph (b)(1), or an alien crewman or stowaway) shall
be referred for a hearing before an immigration judge under new
section 240.
Aliens inadmissible on national security grounds.--
Subsection (c) restates the provisions of current section
235(c) regarding the removal of aliens arriving in the United
States who are inadmissible on national security grounds. This
subsection is not intended to apply in the case of aliens who
are inadmissible under new section 212(a)(9) because they are
already present in the United States. Such aliens could be
subject to the special removal procedures provided in Subtitle
B of this Title.
Authority of officers.--New subsection (d) restates
provisions currently in section 235(a) authorizing immigration
officers to search conveyances, administer oaths, and receive
evidence, and to issue subpoenas enforceable in a United States
district court.
Sec. 303--Apprehension and detention of aliens not lawfully in the
United States (revised section 236)
Subsection (a) of this section will amend section 236 of
the INA to include provisions currently contained in sections
236 and 242. Subsection (b) authorizes an increase in INS
detention facilities to 9,000 beds by FY 1997.
Section 236.--Section 236(a) restates the current
provisions in section 242(a)(1) regarding the authority of the
Attorney General to arrest, detain, and release on bond an
alien who is not lawfully in the United States. (The current
authority in section 242(a) for a court in habeas corpus
proceedings to review the conditions of detention or release
pending the determination of the alien's inadmissibility or
deportability is not retained.) The minimum bond for an alien
released pending removal proceedings is raised from $500 to
$1500.
New section 236(b) restates the current provisions in
section 242(a)(1) that the Attorney General may at any time
revoke an alien's bond or parole.
New section 236(c) restates the current provisions in
section 236(e) and 242(a)(2) regarding the detention of an
alien convicted of an aggravated felony, and adds an additional
provision enabling the release of such an alien if the Attorney
General decides in accordance with 18 U.S.C. 3521 that release
is necessary to provide protection to a witness, potential
witness, a person cooperating with an investigation into major
criminal activity, or a family member or close associate of
such a witness or cooperator.
New section 236(d) restates the current provisions in
section 242(a)(3) regarding the identification of aliens
convicted of aggravated felonies and amends those provisions to
require that information be provided to the Department of State
for inclusion in its automated visa lookout system.
Sec. 304--Removal proceedings; cancellation of removal and adjustment
of status; Voluntary departure (revised and new sec. 239 to
240C)
Subsection (a) of this section redesignates current section
239 (designation of ports of entry for aliens arriving by civil
aircraft) as section 234, redesignates section 240 (records of
admission) as section 240C, and inserts new sections 239, 240,
240A, and 240B. Subsection (b) of this section repeals section
212(c) of the INA.
Section 239.--New section 239 (``Initiation of removal
proceedings'') restates the provisions of current subsections
(a) and (b) of section 242B regarding the provision of notice
(``Notice to Appear'') to aliens placed in removal proceedings.
These provisions are conformed to the establishment of a single
removal hearing to replace the proceedings under current
section 236 (exclusion) and 242 (deportation). The requirement
that the Notice to Appear (formerly ``Order to Show Cause'') be
provided in Spanish as well as English is not retained. The
mandatory period between notice and date of hearing is reduced
to 10 days. Service is sufficient if there is proof of mailing
to the last address provided by the alien.
Section 240.--New section 240 (``Removal Proceedings'')
restates provisions in current section 236 (exclusion
proceedings) and 242 and 242B (deportation proceedings).
Section 240(a) provides that there shall be a single
proceeding for deciding whether an alien is inadmissible under
section 212(a) or deportable under section 237 (formerly
section 241(a)). This subsection shall not affect proceedings
under new section 235(c) (aliens inadmissible on national
security grounds), new section 238 (currently section 242A)
(aliens convicted of aggravated felonies), or new section
235(b)(1) (arriving aliens inadmissible for fraud or lack of
documents).
Section 240(b) provides that the removal proceeding under
this section shall be conducted by an immigration judge in
largely the same manner as currently provided in sections 242
and 242B. Under paragraph (b)(2), the proceeding may take place
in person, through video conference, or, with the consent of
the alien in hearings on the merits, through telephone
conference. Under paragraph (b)(5), an alien who fails to
appear for a hearing may be ordered removed if the Service
establishes by clear, unequivocal, and convincing evidence that
notice under section 239 was provided and the alien is
inadmissible or deportable. There is no requirement to provide
written notice if the alien has failed to provide the address
required under section 239(a)(1)(F). An in absentia order can
only be rescinded through a motion to reopen filed within 180
days if the alien demonstrates that the failure to appear was
due to exceptional circumstances (as defined in section
240(e)), or a motion to reopen filed at any other time if the
alien demonstrates that the alien either did not receive notice
of the hearing or was in Federal or State custody and could not
appear. An alien who fails to appear shall be ineligible for
any relief under new sections 240A (voluntary departure) and
240B (cancellation of removal), and sections 245, 248, and 249.
Section 240(c) provides that the immigration judge shall
make a decision on removability based only upon the evidence at
the hearing. An alien applicant for admission shall have the
burden to establish that he or she is beyond doubt entitled to
be admitted. An alien who is not an applicant for admission
shall have the burden to establish by clear and convincing
evidence that he or she is lawfully present in the U.S.
pursuant to a prior lawful admission. In the case of an alien
who has been admitted to the U.S., the Service has the burden
to establish by clear and convincing evidence that the alien is
deportable.
An alien is limited to one motion to reconsider the
decision of the immigration judge. Such motion shall be filed
within 30 days of the final administrative order of removal and
shall specify the errors of law or fact in the order. An alien
is limited to one motion to reopen proceedings. Such motion
shall be filed within 90 days of the final administrative order
of removal and shall state the new facts to be proven at a
hearing if the motion is granted. The deadline for a motion to
reopen may be extended in the case of an application for asylum
or withholding of removal that is based on new evidence of
changed country conditions that was not available at the time
of the initial hearing. The deadline also may be extended in
the case of an in absentia order of removal if filed within 180
days and establishing that the alien's failure to appear was
because of exceptional circumstances beyond the control of the
alien (as defined in section 240(e)) or because the alien did
not receive the notice required under section 239(a).
Section 240(d) provides that the Attorney General shall
provide by regulation for the entry by an immigration judge of
an order of removal stipulated to by the alien and the INS.
Such an order shall be a conclusive determination of the
alien's removability from the U.S.
Section 240(e) defines as ``exceptional circumstances'' the
serious illness of the alien or the serious illness or death of
the spouse, parent, or child of the alien, but not including
less compelling circumstances. The subsection defines
``removable'' to mean that an alien who has not been admitted
is inadmissible under section 212 and that an alien who has
been admitted is deportable under section 237.
Section 240A.--New section 240A (``Cancellation of removal;
adjustment of status'') establishes revised rules for the type
of relief that is currently available to excludable and
deportable aliens under section 212(c) and 244(a)-(d).
Section 240A(a) provides that the Attorney General may
cancel removal in the case of an alien lawfully admitted for
permanent residence for not less than 5 years if the alien has
resided in the United States continuously for 7 years since
being lawfully admitted in any status and has not been
convicted of an aggravated felony or felonies the aggregate
sentence for which is at least 5 years. This provision is
intended to replace and modify the form of relief now granted
under section 212(c) of the INA.
Section 240A(b)(1) provides that the Attorney General may
cancel removal in the case of an alien who has been physically
present in the United States for a continuous period of at
least 7 years immediately preceding the date of applying for
such relief, has been a person of good moral character, has not
been convicted of an aggravated felony, and establishes that
removal would result in extreme hardship to the alien or to the
alien's spouse, parent, or child who is a citizen of the United
States or an alien lawfully admitted for permanent residence.
This provision is intended to replace and modify the relief of
suspension of deportation now granted under section 244(a).
Section 240A(b)(2) restates the provisions in current
section 244(a)(3), enacted in section 40703(a)(3) of the
Violent Crime Control and Law Enforcement Act of 1994. It
provides that the Attorney General may cancel removal if the
inadmissible or deportable alien has been subjected to extreme
cruelty in the United States by a spouse or parent who is a
United States citizen or lawful permanent resident, has been
physically present in the United States for a continuous period
of at least 3 years, has been a person of good moral character
during such period, is not deportable or inadmissible on
grounds related to criminal activity, national security, or
marriage fraud, and establishes that removal would result in
severe hardship.
Section 240A(b)(3) states that the Attorney General may
adjust to the status of an alien lawfully admitted for
permanent residence an alien who meets the requirements for
cancellation of removal. The number of such adjustments shall
not exceed 4,000 in any fiscal year.
Subsection 240A(c) provides that the following categories
of aliens shall not be eligible for cancellation of removal
under subsections (a) and (b)(1): an alien who entered as a
crewman after June 30, 1964; an alien who was admitted as a
nonimmigrant exchange alien under 101(a)(15)(J); an alien who
was admitted as a nonimmigrant exchange alien under section
101(a)(15)(J), is subject to the two-year foreign residence
requirement of section 212(e), and has not fulfilled that
requirement or received a waiver; or an alien who is
inadmissible under section 212(a)(3) or deportable under
section 237(a)(4)(D) (national security and related grounds).
Subsection 240A(d) provides that the period of continuous
residence or physical presence ends when an alien is served a
notice to appear under section 239(a) (for the commencement of
removal proceedings under section 240). A period of continuous
physical presence is broken if the alien has departed from the
United States for any periods in the aggregate exceeding 180
days, unless for emergent reasons the return could not be
accomplished in that time. The continuous physical presence
requirement does not apply to an alien who has served 24 months
in active-duty status in the United States armed forces, was in
the United States at the time of enlistment or induction, and
was honorably discharged.
Section 240B.--New section 240B (``Voluntary departure'')
establishes new conditions for the granting of voluntary
departure, currently governed by section 242(b) and 244(e) of
the INA.
Section 240B(a) provides that the Attorney General may
permit an alien voluntarily to depart the United States at the
alien's expense in lieu of being subject to removal proceedings
under section 240 or prior to the completion of such
proceedings, if the alien is not deportable because of
conviction for an aggravated felony or on national security and
related grounds. Permission to depart voluntarily under this
subsection shall not be valid for a period exceeding 120 days
and an alien may be required to post a voluntary departure
bond, to be surrendered upon proof that the alien has departed
the U.S. within the time specified. No alien arriving in the
United States for whom removal proceedings under section 240
are instituted at the time of arrival is eligible for voluntary
departure under this section. Such an alien may withdraw his or
her application for admission to the United States in
accordance with section 235(a)(4).
Section 240B(b) provides that the Attorney General may
permit an alien voluntarily to depart the United States at the
conclusion of proceedings under section 240 if the alien has
been physically present for at least one year in the United
States, the alien has been a person of good moral character for
the preceding 5 years, the alien is not deportable because of
conviction for an aggravated felony or on national security and
related grounds, and the alien has established by clear and
convincing evidence that the alien has the means to depart the
United States and intends to do so. The period for voluntary
departure cannot exceed 60 days and a voluntary departure bond
is required.
Section 240B(c) provides that an alien is not eligible for
voluntary departure if the alien was previously granted
voluntary departure after having been found inadmissible under
section 212(a)(9) (present without admission).
Section 240B(d) provides that if an alien is permitted to
depart voluntarily and fails to do so, the alien shall be
subject to a civil penalty of not less than $1,000 nor more
than $5,000 and shall not be eligible for any further relief
under this section or sections 240A, 245, 248, or 249 for a
period of 10 years.
Section 240B(e) provides that the Attorney General may by
regulation limit eligibility for voluntary departure for any
class or classes of aliens.
Section 240B(f) provides that an alien may appeal from a
denial of an order of voluntary departure but shall be
removable from the U.S. 60 days after the entry of the order of
removal and may prosecute the appeal from abroad.
Sec. 305--Detention and removal of aliens ordered removed (new section
241)
Subsection (a) of this section strikes section 237,
redesignates section 241 as section 237, and inserts a new
section 241.
Section 241--New section 241 (``Detention and removal of
aliens ordered removed'') restates and revises provisions in
current sections 237, 242, and 243 regarding the detention and
removal of aliens.
Section 241(a) provides that the Attorney General shall
remove an alien within 90 days of the alien being ordered
removed. This removal period shall begin when the alien's order
is administratively final, when the alien is released from non-
immigration related detention or confinement, or, if the alien
has appealed his order to a court and removal has been stayed,
the date of the court's final order. The removal period is
extended beyond 90 days if the alien wilfully refuses to apply
for travel documents or takes other steps (other than appeals)
to prevent removal.
The alien shall be detained during the removal period. If
space is not available, the Attorney General may release the
alien on bond and under any conditions that the Attorney
General may prescribe. If the alien is not removed within 90
days, the alien shall be subject to supervision under
conditions similar to those currently in section 242(d). An
inadmissible alien who has been ordered removed may be detained
beyond the 90-day period. The Attorney General may not remove
an alien who is sentenced to imprisonment until the alien is
released, but parole, supervised release, probation, or the
possibility of arrest are not grounds to defer removal.
If an alien reenters the United States illegally after
having been removed or departed voluntarily under an order of
removal, the prior order of removal is reinstated and the alien
shall be removed under the prior order, which shall not be
subject to review.
An alien who is subject to an order of removal may not be
granted authorization to work in the United States unless there
is no country willing to accept the alien, or the alien cannot
be removed for reasons deemed strictly in the public interest.
Section 241(b) establishes the countries to which an alien
may be removed. Subsection (b)(1) restates the provisions in
current section 237(a); subsection (b)(2) restates the
provisions in current sections 243 (a) and (b).
Section 241(c) provides that an alien arriving in the
United States who is ordered removed shall be removed
immediately by the vessel or aircraft that brought the alien,
unless it is impracticable to do so or the alien is a stowaway
who has been ordered removed by operation of section 235(b)(1)
but has a pending application for asylum. This subsection also
restates and revises the provisions in section 237(d) regarding
stay of removal, and the provisions in section 237(a) regarding
cost of detention and maintenance pending removal. These
provisions make it clear that actual physical detention of an
alien who has been permitted to land in the United States shall
be the sole responsibility of the Attorney General and shall
take place in INS facilities or contract facilities, even in
cases where the liability for cost of detention is assigned to
a private entity such as a carrier. The Committee further
believes the rate of reimbursement charged to the carrier to
other entity made responsible for the cost of detention of an
alien shall be at the same per diem rate charged to the
government for the cost of detention.
In the case of an alien stowaway, the carrier shall be
liable for the cost of detention incurred by the Attorney
General. If the stowaway does not claim asylum, the only issue
is to arrange for the stowaway's departure from the United
States. This could occur directly on the vessel of arrival,
particularly in the case of aircraft. However, the Committee
understands that, due to commercial requirements, safety
concerns, and other factors, it is often not practicable for
the stowaway to be removed on the vessel of arrival,
particularly in the case of commercial maritime vessels. For
this reason, section 241(d)(2)(B) provides that an alien
stowaway may be allowed to land in the United States for
detention by the Attorney General or departure or removal of
the stowaway. In such a case, the carrier shall be responsible,
under section 241(c)(3)(A)(ii)(II), for the cost of detention
by the Attorney General for the time reasonably necessary to
arrange for repatriation or removal of the alien, including
obtaining necessary travel documents. The carrier's liability
shall not extend beyond the date on which it is ascertained
that such travel documents cannot be obtained. The Committee
expects that the carrier and the INS will work cooperatively in
order to obtain such travel documents in an expeditious manner,
but understands that there are circumstances in which foreign
governments do not cooperate in issuing such documents. Since
circumstances in such cases vary, the Committee has not
designated a time period beyond which the financial
responsibility for continued detention shifts from the carrier
to the INS. The Committee expects that the INS, through
regulations or internal policy guidance, will set a reasonable
timeline and other criteria that will be applied uniformly in
all INS districts. Such guidelines should include an obligation
on the part of the carrier to continue efforts to obtain travel
documents and make other arrangements for the departure of the
stowaway from the U.S.
In the case of a stowaway who has claimed asylum and is
being detained to pursue an application for asylum, the carrier
shall be liable, under section 241(c)(3)(A)(ii)(III), for a
period not to exceed 15 business days, excluding Saturdays,
Sundays, and holidays. The 15-day period shall begin when the
alien is determined, under section 235(b)(1), to have a
credible fear of persecution and thus be eligible to apply for
asylum, but not later than 72 hours after the actual arrival of
the stowaway in the U.S. The 72-hour period is intended to
provide adequate time for the Attorney General to determine if
the stowaway has a credible fear of persecution and thus may be
detained by the INS to pursue an asylum application. Under no
circumstances shall the carrier be required to reimburse the
INS for a period of detention greater than 15 business days,
plus the portion of the initial 72-hour period required to
determine if the stowaway is eligible to apply for asylum. The
Committee believes that the obligation of the carrier to pay
for detention costs shall not be extended to require the
carrier to pay for the cost of translators, legal counsel, or
other assistance in preparing and presenting the stowaway's
claim for asylum. The Committee expects that the INS will
adopt, through regulations consistent with the provisions of
this legislation, clear policy guidance regarding the conduct
of interviews to determine if a stowaway has a credible fear of
persecution.
Section 241(d) restates the provisions in current section
237(b) requiring the owner of the vessel or aircraft bringing
an alien to the United States to comply with orders of an
immigration officer regarding the detention or removal of the
alien. This subsection also restates the provisions in section
243(e) that any carrier (not limited to the carrier who has
brought an alien) comply with an order of the Attorney General
to remove to a specific destination an alien who has been
ordered removed.
Section 241(d) also revises and restates the requirements
in section 273(d) regarding permission for a stowaway to land
in the U.S. A carrier who has brought a stowaway shall, pending
completion of the inspection of the stowaway, detain the
stowaway on board the vessel or at another place designated by
the INS. The carrier may not permit the stowaway to land except
temporarily for medical treatment, for detention of the
stowaway by the Attorney General, or for departure and removal
of the stowaway. However, a carrier shall not be required to
detain a stowaway who has been permitted to remain in the U.S.
to pursue an application for asylum, who shall be detained by
the Attorney General subject to the reimbursement requirements
set forth in section 241(c). Furthermore, the Attorney General
shall grant a timely request by a carrier to remove the
stowaway on a vessel other than that on which the alien has
arrived in the U.S., provided that the carrier pays the cost of
removal and obtains all necessary travel documents. In this
way, the stowaway can be rapidly repatriated to the country of
origin, instead of being forced to remain on the vessel while
it makes other ports of call.
Section 241(e) restates the provisions in current sections
237(c) and 243(c) regarding the payment of expenses for removal
of aliens who have been ordered removed.
Section 241(f) restates the provisions in section 243(f)
regarding the employment of persons to assist in the removal of
aliens requiring personal care during removal.
Section 241(g) amends and restates the authority in current
section 242(c) for construction and operation of detention
facilities. The amendment states that before the construction
of new facilities, the Commissioner of the INS shall consider
the availability for purchase or lease of existing facilities.
Section 241(h) provides that nothing in section 241 shall
be construed to create any substantive or procedural right or
benefit that is legally enforceable against the United States,
its agencies or officers, or any other person. This provision
is intended, among other things, to prohibit the litigation of
claims by aliens who have been ordered removed from the U.S.
that they be removed at a particular time or to a particular
place.
Subsection (b) of section 305 amends redesignated section
241(h) (reimbursement to States for incarceration of
undocumented criminal alien felons--currently section 242(j)).
The amendment provides that ``incarceration'' shall include
imprisonment in a State or local facility that is counted
towards completion of a sentence and also the imprisonment of a
previously convicted felon or misdemeanant who has been
rearrested on new charges. The amendment also will permit
reimbursement in the case of an alien convicted of two or more
misdemeanors.
Sec. 306--Appeals from orders of removal (new section 242)
This section amends section 242 to revise and restate the
provisions in current section 106, which is repealed.
Section 242(a) provides that a final order of removal,
other than an order or removal under section 235(b)(1), is
governed by chapter 158 of title 28. This is consistent with
current section 106(a). This subsection also provides that no
court shall have jurisdiction to review a decision by the
Attorney General to invoke section 235(b)(1), the application
of such section to individual aliens (including the
determination under section 235(b)(1)(B) regarding credible
fear of persecution), or procedures and policies to implement
section 235(b)(1). Individual determinations under section
235(b)(1) may only be reviewed under new subsection 242(f).
Section 242(b)(1) provides that a petition for review must
be filed within 30 days after the final order of removal in the
federal court of appeals for the circuit in which the
immigration judge completed proceedings. Subsection (b)(3)(B)
provides that the filing of a petition stays the removal of the
alien unless the alien has been convicted of an aggravated
felony or has been ordered removed because alien is
inadmissible under section 212, in which case removal is stayed
only if specifically ordered by the court.
The remaining paragraphs of subsection (b) revise and
restate the provisions in subsections (3) through (8) of
current section 106 regarding form, service, decision,
treatment of a petitioner's claim that he or she is a national
of the United States, consolidation of motions to reopen and
reconsider, challenge of validity of orders of removal, and
detention and removal of alien petitioners.
Section 242(c) restates the provisions in the second
sentence of subsection (c) of current section 106 that a
petition for review must state whether a court has upheld the
validity of an order of removal, and if so, identifying the
court and date and type of proceeding.
Section 242(d) restates the provisions in the first and
third sentences of subsection (c) of current section 106
requiring that a petitioner have exhausted administrative
remedies and precluding a court from reviewing an order of
removal that has been reviewed by another court absent a
showing that the prior review was inadequate to address the
issues presented in the petition, or that the petition presents
new grounds that could not have been presented in the prior
proceeding.
Section 242(e) provides that a petition for review from an
order of removal under section 238 (expedited procedures for
non-resident aliens convicted of an aggravated felony) may
address only whether the alien has been correctly identified,
has been convicted of an aggravated felony, and has been given
the procedures described in section 238(b)(4).
Section 242(f) provides rules for judicial review of orders
of removal under section 235(b)(1). No court shall have
jurisdiction or authority to enter declaratory, injunctive, or
other equitable relief against the operation of section
235(b)(1) (other than that specifically authorized in this
subsection), or to certify a class under Rule 23 of the Federal
Rules of Civil Procedure. Judicial review is only available in
habeas corpus and is limited to whether the petitioner is an
alien, whether the petitioner was ordered removed under section
235(b)(1), and whether the petitioner can prove by a
preponderance of the evidence that he or she is an alien
lawfully admitted for permanent residence. If the court
determines that the petitioner was not ordered excluded or is
an alien lawfully admitted for permanent residence, the court
may order no relief other than to require that the alien be
provided a hearing under section 240. The habeas corpus
proceeding shall not address whether the alien actually is
admissible or entitled to any relief from removal.
Section 242(g) provides that no court other than the
Supreme Court shall have jurisdiction or authority to enjoin or
restrain the operation of the provisions in chapter 4 of Title
II of the INA, as amended by this legislation, other than with
respect to the application of the provisions to an individual
alien against whom removal proceedings have been initiated.
Sec. 307. Penalties relating to removal (revised section 243)
Subsection (a) restates the provisions in current section
242(e) regarding penalties for failure to depart within 90 days
of the order of removal.
Subsection (b) restates the provisions in the third and
final sentence of current section 242(d) regarding penalties
for failure to comply with the terms of release under
supervision pursuant to section 241(a)(3) (currently the first
two sentences of section 242(d)).
Subsection (c) restates the provisions in the second and
third sentences of current section 237(d) and the final clause
of current section 243(e) regarding penalties for failure to
comply with an order to remove an alien from the U.S.,
including civil money penalties and limitations on the
clearance of vessels.
Subsection (d) revises and restates the provisions in
current section 243(g) regarding sanctions against a country
that refuses to accept an alien who is a citizen, subject,
national, or resident of that country. Under the amendment, the
Secretary of State shall order that the issuance of both
immigrant and nonimmigrant visas to citizens, nationals,
subjects, or nationals of that country be suspended until the
country has accepted the alien.
Sec. 308. Redesignation and reorganization of other provisions;
additional conforming amendments
This section makes a series of redesignations and
conforming amendments in addition to those made in other
sections.
Current section 232 is redesignated as section 232(a).
Current section 234 is redesignated as section 232(b).
Current section 238 is redesignated as section 233.
Current section 240 is redesignated as section 234A.
Current section 242A is redesignated as section 238, with
conforming amendments.
Current section 242B is stricken.
Current section 244A is redesignated as section 244.
The provisions in current section 237(e) regarding the
removal of an arriving alien who is helpless from sickness or
mental or physical disorder are restated as a new section
232(c). Section 212(a)(10)(B), the redesignated ground of
inadmissibility for an alien who is ordered to accompany such a
helpless alien during removal, also is amended to conform to
the amendments in new section 232(c).
Section 273(a) is amended by adding a new paragraph (2) to
restate the provisions in current section 237(b)(5) prohibiting
a carrier from taking any consideration contingent on whether
an alien is admitted to or order removed from the U.S.
Section 273(d) is repealed.
Sec. 309--Effective dates; transition
Subsection (a) provides that the changes made in this
subtitle shall take effect on the first day of the first month
beginning more than 180 days after the date of enactment.
Subsection (b) provides that the Attorney General shall
promulgate regulations to carry out this subtitle at least 1
month before the effective date in subsection (a).
Subsection (c) provides for the transition to new
procedures in the case of an alien already in exclusion or
deportation proceedings on the effective date. In general, the
amendments made by this subtitle shall not apply and the
proceedings (including judicial review) shall continue to be
conducted without regard to such amendments.
The Attorney General may elect to apply the new procedures
in a case in which an evidentiary hearing under current section
236 (exclusion) or sections 242 and 242B (deportation) has not
been commenced as of the effective date. The Attorney General
shall provide notice of such election to the alien, but the
prior notice of hearing and order to show cause served upon the
alien shall be effective to retain jurisdiction over the alien.
The Attorney General also may elect, in a case in which
there has been no final administrative decision, to terminate
proceedings without prejudice to the Attorney General's ability
to initiate new proceedings under the amendments made by this
subtitle. Determinations in the terminated proceeding shall not
be binding in the new proceeding.
This subsection also provides that in the case where a
final order of exclusion or deportation is entered on or after
the date of enactment and for which a petition for review or
for habeas corpus under section 106 has not been filed as of
such date, new rules shall apply to subsequent petitions for
judicial review. All judicial review, both of exclusion and
deportation decisions, shall be by petition for review to the
court of appeals for the judicial circuit in which the
administrative proceedings before the special inquiry officer
(immigration judge) were completed. The petition for review
also must be filed not later than 30 days after the final order
of exclusion or deportation.
The rules under new section 240A(d)(1) and (2) regarding
continuous physical presence in the United States as a
criterion for eligibility for cancellation of removal shall
apply to any notice to appear (including an Order to Show Cause
under current section 242A) issued after the date of enactment
of this Act.
Subtitle B--Removal of Alien Terrorists
Part 1--Removal Procedures for Alien Terrorists
Sec. 321--Removal procedures for alien terrorists
This section amends the INA by adding a new title V,
entitled special removal procedures for alien terrorists.
Section 501 provides definitions to apply to title V. An
``alien terrorist'' is an alien deportable under current
section 241(a)(4)(B).
Section 502 (``Establishment of special removal court;
panel of attorneys to assist with classified information'')
Sections 502(a) through (c) require the Chief Justice of
the Supreme Court to publicly designate 5 district court judges
from 5 of the U.S. judicial circuits who shall constitute a
special court with jurisdiction to conduct special removal
proceedings. The terms of the judges first appointed shall be
so staggered that the term of one judge expires each year. The
Chief Justice shall designate a chief judge, who shall serve a
full five-year term.
Section 502(d) provides that the proceedings shall be
conducted in conformance with section 103(c) of the Foreign
Intelligence Surveillance Act of 1978.
Section 502(e) provides that the special court shall
designate a panel of attorneys each of whom has a security
clearance permitting access to classified information and has
agreed to represent aliens lawfully admitted for permanent
residence with respect to certain classified information used
in special removal proceedings under the provisions of section
506(c).
Section 503 (``Application for initiation of special
removal proceeding'') provides that when the Attorney General
has classified information that an alien is an alien terrorist,
the Attorney General may seek removal through the filing under
seal, ex parte and in camera, of a written application with the
special court. The application, made under oath or affirmation,
shall identify the attorney making the application; indicate
the approval of the Attorney General or Deputy Attorney General
to the filing of the application based on a finding that the
alien is removable under this title; identify the alien for
whom special removal proceedings are sought; and a statement of
facts to establish that the alien is an alien terrorist, is
physically present in the U.S., and that the use of removal
procedures under title II would pose a risk to the national
security of the U.S. The Attorney General may dismiss a removal
action under this title at any time.
Section 504 (``Consideration of application'') provides
that a single judge on the removal court shall consider, ex
parte and in camera, the application and other information,
including classified information, presented under oath or
affirmation. A verbatim record shall be kept of any hearing on
the application. The judge shall enter ex parte an order
approving the application if there is probable cause to believe
that the alien has been correctly identified and is a
terrorist, and that adherence to the provisions of title II
regarding the removal of aliens would pose a risk to national
security. The judge, in the case of denial, shall prepare a
written statement of the reasons therefor.
If an order is issued under this section, the alien's
rights regarding removal and expulsion shall be governed
exclusively by this title. No other provisions of the Act shall
apply, unless otherwise specified in this title.
Section 505 (``Special removal hearings'') provides that
an alien shall be given reasonable of the nature of the charges
and of the time and place of the hearing, and a general account
of the basis for the charges. The hearing shall be held
expeditiously and by the same judge who granted the application
for the special removal proceeding under section 504. The
hearing shall be open to the public and the alien shall have
the right to be represented by counsel. An alien unable to
afford counsel shall have counsel assigned, in accordance with
section 3006A of title 18. The alien may introduce evidence
and, subject to section 506, may examine the evidence and
cross-examine any witnesses. A verbatim record shall be kept
and the decision shall be based only on the evidence at the
hearing.
An alien subject to proceedings under this section shall
not be eligible for relief under section 208 (asylum), 243(h)
(withholding of deportation), 244(a) (suspension of
deportation), 244(e) (voluntary departure), 245 (adjustment of
status), and 249 (registry).
The Department of Justice or the alien may request the
judge to compel by subpoena the attendance of witnesses and the
production of books, papers, documents, or other objects. Such
requests may be made ex parte, but the judge may reveal an
alien's request to the Department of Justice if the witness or
material requested by the alien would reveal evidence or the
source of evidence which the Department of Justice has received
permission to introduce in camera and ex parte under section
505(e) or section 506.
Section 505(e) provides that classified information shall
be introduced in camera and ex parte and that neither the alien
nor the public shall be informed of such evidence or its
sources other than by reference to a summary of the evidence
prepared in accordance with section 506(b). Electronic
surveillance information obtained through the Foreign
Intelligence Surveillance Act of 1978 shall not be disclosed to
the alien. The United States shall retain the right to seek
protective orders and assert privileges ordinarily available to
the U.S. to protect against the disclosure of classified
information, including the military and state secrets
privileges. The Federal Rules of Evidence shall not apply to
hearings under this title.
At the end of the evidence, argument shall proceed with
the Department of Justice opening and having final reply.
Argument concerning evidence presented in camera and ex parte
shall be heard under like circumstances. The Department has the
burden to prove by clear and convincing evidence that the alien
is an alien terrorist and thus subject to removal. If this
burden is met, the judge shall order the alien detained pending
removal and taken into custody if the alien had been released
pending the hearing. The judge shall prepare a written order of
findings of fact and conclusions of law, but shall not disclose
to the public or the alien the source or substance of
information received in camera and ex parte.
Section 506 (``Consideration of classified information'')
provides that the judge shall consider each item of classified
information in camera and ex parte. The Department shall
prepare a written summary of such classified information which
summary does not pose a risk to the national security. The
judge shall approve the summary if the judge finds that the
summary is sufficient to inform the alien of the nature of the
evidence and to permit the alien to prepare a defense; if the
judge finds the summary insufficient, the Department shall have
a reasonable opportunity to correct it.
If the summary remains insufficient, the judge shall
terminate the proceedings unless the judge finds that the
continued presence of the alien or the provision of the summary
would cause serious and irreparable harm to the national
security or death or serious bodily injury to any person. If
the judge makes these findings, the special removal proceeding
shall continue, the alien shall be informed that no summary is
possible, and the classified information submitted in camera
and ex parte may be used pursuant to section 505(e).
Section 506(c) provides special procedures for cases
involving an alien lawfully admitted for permanent residence in
which the judge determines that no summary of classified
evidence may be provided to the alien. In such cases, the judge
shall appoint a special attorney (see section 502(e)) to whom
the classified information may be disclosed for purposes of
representing the alien in an in camera proceeding on the
evidence. The special attorney may not disclose the classified
information to the alien or to any other attorney representing
the alien, and is subject to a prison term of not less than 10
nor more than 25 years in prison for violating these
restrictions.
Section 507 (``Appeals'') provides that the Department may
seek review of a denial of an order to initiate a special
removal hearing by filing an appeal within 20 days of the
denial with the U.S. Court of Appeals for the D.C. Circuit.
Either party may take an interlocutory appeal to the D.C.
Circuit concerning evidentiary issues, including issues
concerning the preparation and submission of a summary of
classified information.
The decision of the judge after the special removal
hearing may be appealed by either the alien or the Department
to the D.C. Circuit. In the case of an alien lawfully admitted
for permanent residence who is denied a written summary of
classified information under section 506(b)(4) and to whom the
procedures under section 506(c) have been applied, there shall
be an automatic appeal, unless waived by the alien. To the
extent such an appeal concerns classified information, the
special attorney appointed for the alien shall represent the
alien.
Appeals shall be filed within 20 days. The Court of
Appeals shall hear the appeal as expeditiously as possible, and
shall issue a decision within 60 days of the judge's final
order. After the Court of Appeals decision, a petition for
certiorari may be filed by either party to the Supreme Court.
An appeal of an order of detention also shall be taken to the
D.C. Circuit and shall be adjudicated in accordance with the
provisions of sections 3145 through 3148 of title 18 regarding
the review and appeal of a release or detention order,
penalties for failure to appear or for committing a crime, and
sanctions for violation of a release condition.
Section 508 (``Detention and custody'') provides that the
Attorney General may take into custody any alien against whom
an application under section 503 has been filed to initiate
special removal proceedings under this title. An alien lawfully
admitted for permanent residence is entitled to a release
hearing and may be released if the alien demonstrates that he
is not likely to flee and that the release will not endanger
national security or the safety of any person. An alien in
detention under this title shall be entitled to reasonable
opportunity to communicate with members of the alien's family
or the alien's attorney, and to have contact with diplomatic
officers of the alien's country of nationality.
If the special removal judge denies the order sought for
in an application under section 503, the alien shall be
released from custody. If the Department seeks review of the
denial, the judge shall impose the least restrictive conditions
that will reasonable assure the appearance of the alien and
that the release will not endanger the safety of any person or
the community. If no such conditions exist, the alien shall
continue to be detained.
If after the hearing the judge decides that the alien
should not be removed, the alien shall be released, unless the
Attorney General takes an appeal, in which case the alien shall
be detained subject to the conditions in section 3142 of title
18. If after the hearing the judge decides that the alien is to
be removed, the alien shall be detained pending judicial
review.
An alien ordered removed shall be removed to any country
the alien shall designate. If the alien refuses to designate a
country, or if removal to the designated country would impair
an international obligation or adversely affect U.S. foreign
policy, the removal shall be to any country willing to receive
the alien. If no country is willing to receive the alien, the
alien shall be detained. The Attorney General shall report to
the alien's attorney every 6 months regarding efforts to find a
country willing to accept the alien. An alien in this situation
may be released by the Attorney General under such conditions
as the Attorney General may prescribe. The removal of an alien
ordered removed under this title may be delayed pending a
criminal trial against the alien and the service of any
sentence.
This section also amends section 276(b) to provide that an
alien terrorist removed under the provisions of this title or
under subsection 235(c) who enters or attempts to enter the
U.S. without the permission of the Attorney General shall be
fined and imprisoned for 10 years.
Sec. 322--Funding for detention and removal of alien terrorists
This section authorizes to be appropriated, in addition to
amounts already appropriated, $5,000,000 for the purpose of
detaining and deporting alien terrorists.
Part 2--Exclusion and Denial of Asylum for Alien Terrorists
Sec. 331--Membership in a terrorist organization as ground of
inadmissibility
This section amends section 212(a)(3)(B) of the INA to
provide that an alien who is a representative or member of an
organization that engages in or actively supports or advocates
terrorist activity is excludable from the U.S.
This section also amends section 212(a)(3)(B) by adding a
new clause (iv), defining ``terrorist organization'' to mean a
foreign organization designated in the Federal Register by the
Secretary of State, in consultation with the Attorney General,
based on a finding that the organization engages in or has
engaged in terrorist activity that threatens the national
security. Congress shall be notified at least 3 days prior to
the published designation and has the authority to remove, by
law, any such designation. The designation shall be effective
for 2 years and may be renewed not earlier than 60 days prior
to its expiration. The Secretary of State, in consultation with
the Attorney General, may remove a designation at any time. The
designation is subject to judicial review.
This section also adds a new clause (v) to section
212(a)(3)(B), defining ``representative'' to include an
officer, official, or spokesman of the organization and any
person who directs, counsels, commands, or induces the
organization to engage in terrorist activity. The determination
of the Secretary of State or Attorney General that an alien is
a representative of a terrorist organization is subject to
judicial review.
Sec. 332--Denial of relief for alien terrorists
This section amends sections 243(h)(2) (withholding of
deportation), 244(a) (suspension of deportation), 244(e)(2)
(voluntary departure), 245(c) (adjustment of status), and
249(d) (registry) to provide that an alien who is deportable
under section 241(a)(4)(B) is not eligible for these forms of
relief.
Subtitle C--Deterring Transportation of Unlawful Aliens to the United
States
Sec. 341--Definition of stowaway
This section amends section 101 of the INA to add a new
paragraph (47), defining ``stowaway'' to mean any alien who
obtains transportation without consent including through
concealment. A passenger who boards with a valid ticket is not
to be considered a stowaway.
Comment:--``Stowaway'' is a term that has not previously
been defined in the INA. Some passengers who board with valid
tickets but destroy those tickets and other travel documents en
route have been categorized as stowaways in the past. Current
administrative practice limits the ``stowaway'' designation to
passengers who have obtained passage without the consent of the
carrier. Ordinarily, this will involve concealment on board the
vessel, although it may on rare occasions result from failure
to observe secure boarding procedures and allowing an illicit
passenger who is plainly visible to obtain transport. This
amendment is intended to codify the current administrative
practice.
The definition clarifies that the term ``stowaway'' does
not apply to a passenger boarding with a ticket. The Committee
is aware of the trend in the airline industry toward so-called
``ticketless'' travel and does intend that the term ``ticket''
apply to any boarding pass or other authorization to travel
validly obtained through such a ``ticketless'' system.
Sec. 342--List of alien and citizen passengers arriving
This section amends section 231(a) to provide that carriers
shall provide electronic manifests of persons arriving in the
U.S., and that such lists include for each person transported
the person's name, date of birth, gender, citizenship, and
travel document number (if applicable). This provision shall be
effective not later than 60 days after enactment.
Subtitle D--Additional Provisions.
Sec. 351--Definition of conviction
This section amends section 101(a) of the INA to add a new
paragraph (47), defining conviction to mean a formal judgment
of guilt entered by a court. If adjudication of guilt has been
withheld, a judgment is nevertheless considered a conviction if
(1) the judge or jury has found the alien guilty or the alien
has pleaded guilty or nolo contendere; (2) the judge has
imposed some form of punishment or restraint on liberty; and
(3) a judgment of guilt may be imposed without further
proceedings on guilt or innocence of the original charge if the
alien violates the term of probation or otherwise fails to
comply with the court's order.
Sec. 352--Immigration judges and compensation
Subsection (a) amends paragraph (4) of section 101(b) to
replace the definition of ``special inquiry officer'' with a
definition of ``immigration judge:'' an attorney designated by
the Attorney General as an administrative judge within the
Executive Order for Immigration Review to conduct proceedings,
including proceedings under section 240.
Subsection (b) substitutes the term ``immigration judge''
for ``special inquiry officer'' wherever it appears in the INA.
Subsection (c) establishes a four-level pay scale for
immigration judges, beginning at 70 percent and reaching 92
percent of the next to highest rate of basic pay for the Senior
Executive Service.
Sec. 353--Rescission of lawful permanent resident status
This section amends section 246(a) of the INA to clarify
that the Attorney General is not required to rescind the lawful
permanent resident status of a deportable alien separate and
apart from the removal proceeding under section 240.
Sec. 354--Civil penalties for failure to depart
This section adds a new section 274D to the INA, providing
that aliens under an order of removal who willfully fail to
depart or to take actions necessary to permit departure (e.g.,
apply for travel documents) to a $500 penalty for each day in
violation. This section would not diminish the criminal
penalties at section 243(a) (for failure to depart) or at any
other section of the INA.
Sec. 355--Clarification of district court jurisdiction
This section clarifies that the grant of jurisdiction under
section 279 of the INA is to permit the Government to institute
lawsuits for enforcement of provisions of the INA, not for
private parties to sue the Government. This has no effect on
other statutory or constitutional grounds for private suits
against the Government.
Sec. 356--Use of retired Federal employees for Institutional Hearing
Program
This section permits the hiring of retired military or
Federal civilian employees, with no reduction in retirement pay
or annuity, for not longer than 24 months to perform duties in
connection with the Institutional Hearing Program for removal
of criminal aliens from the United States.
Sec. 357--Enhanced penalties for failure to depart, illegal reentry,
and passport and visa fraud
This section instructs the Sentencing Commission to
promptly promulgate amendments to the sentencing guidelines to
reflect the amendments made in section 130001 and 130009 of the
Violent Crime Control and Law Enforcement Act of 1994.
Sec. 358--Authorization of additional funds for removal of aliens
This section authorizes to be appropriated beginning in
fiscal year 1996 the sum of $150,000,000 for costs associated
with the removal of inadmissible or deportable aliens,
including costs of detention of such aliens pending their
removal. This section is intended to authorize sufficient funds
in fiscal year 1996 for the hiring of 475 detention and
deportation officers and support personnel and 475
investigators and support personnel.
Sec. 359--Application of additional civil penalties to enforcement
This section amends section 280(b) to provide for
establishment of the ``Immigration Enforcement Account,'' into
which shall be deposited the civil penalties collected under
sections 240B(d), 274C, 274D, and 275(b), as amended by this
bill. The collected funds shall be used for specified
immigration enforcement purposes.
Sec. 360--Prisoner transfer treaties
This section advises the President to negotiate and
renegotiate bilateral prisoner transfer treaties to expedite
the transfer to their countries of nationality of aliens
unlawfully in the United States who are subject to
incarceration. The negotiations are to ensure that a
transferred prisoner serves the balance of the sentence imposed
by the United States, and to eliminate any requirement of
prisoner consent to such transfer. The President shall submit
an annual certification to Congress on whether each prisoner
transfer treaty in force is effective in returning criminal
aliens to their countries of nationality.
Sec. 361--Criminal alien identification system
Subsection (a) amends section 130002(a) of the Violent
Crimes Control and Law Enforcement Act of 1994 to require that
the criminal alien identification system be used to assist
Federal, State, and local law enforcement agencies in
identifying and locating aliens who may be removable on account
of criminal or other grounds. The system shall provide for
recording of fingerprints of aliens previously arrested and
removed.
Subsection (b) provides that at the request of a governor
of a State, the INS shall provide assistance in the
identification of aliens unlawfully present in the United
States.
Sec. 362--Waiver of exclusion and deportation ground for certain
section 274C violations
Subsection (a) of this section amends subparagraph
212(a)(6)(F) and adds a new paragraph 212(d)(12), to provide
that an alien who is inadmissible for having been in violation
of section 274C (civil document fraud) may have the ground of
inadmissibility waived if the alien is a lawful permanent
resident or an alien seeking admission and a family-sponsored
or employment-based immigrant, and the violation was committed
solely to assist the alien's spouse, parent, son, or daughter
(and not another individual).
Subsection (b) amends subparagraph 241(a)(3)(C) (prior to
redesignation as section 237(a)(3)(C)) to provide a similar
waiver for an alien who is deportable due to a section 274C
violation.
Sec. 363--Authorizing registration of aliens on criminal probation or
criminal parole
This section amends section 263(a) to authorize the
registration by the Attorney General of aliens who are or who
have been on criminal probation or criminal parole within the
U.S.
Sec. 364--Confidentiality provision for certain alien battered spouses
and children
This section provides that the Attorney General shall not
make an adverse determination of admissibility or deportability
against an alien or an alien's child using information
furnished solely by certain individuals who have battered or
subjected to extreme cruelty that alien or that alien's child,
unless the alien has been convicted of a crime identified in
redesignated section 237(a)(2). Neither shall the Attorney
General permit use by, or disclosure to (other than to an
officer of the Department of Justice for official and certain
other designated purposes) any information that relates to an
alien who is the beneficiary of an application for relief
(which has not been denied) under section 204(a)(1)(B) (self-
petition for immigrant visa by alien who has been battered or
subject to extreme cruelty), section 216(c)(4)(C) (hardship
waiver allowing removal of conditional permanent resident
status based on qualifying marriage because alien spouse or
child has been subject to battery or extreme cruelty), or
section 244(a)(3) (suspension of deportation for alien spouse
or child who has been subject to battery or extreme cruelty).
(This prohibition also should extend to applications for
cancellation of removal under new section 240A(b)(2)).
Penalties are established for violations.
TITLE IV--ENFORCEMENT OF RESTRICTIONS AGAINST EMPLOYMENT
Sec. 401--Strengthened enforcement of the employer sanctions provisions
This section requires that the number of full-time INS
Investigators be increased by 350 and that the new agents be
assigned to investigate violations of the employer sanctions
provisions of the INA.
Sec. 402--Strengthened enforcement of wage and hour laws
This section requires the number of full-time Department of
Labor Wage and Hour Division employees to be increased by 150
and that the new agents be assigned to investigate violations
in areas where there are high concentrations of undocumented
aliens.
Sec. 403--Changes in the employer sanctions program
Subsection (a) amends section 274A(b)(1)(B) of the INA to
strike clauses (ii) through (iv). This eliminates three
categories of documents that now can be used to establish both
employment authorization and identity: certificate of
citizenship, certificate of naturalization, and unexpired
foreign passport stamped by Attorney General with employment
authorization. After this amendment, only a United States
passport, alien registration card, or other employment
authorization document issued by Attorney General would be
acceptable to establish both identity and work authorization.
Subsection (a) also amends section 274A(b)(1)(C) of the INA
to eliminate a birth certificate as a document that can be used
to establish work authorization. Only a social security card
would be acceptable for this purpose. Subsection (a) also
amends section 274A(b)(2) to require that an individual being
hired provide his or her social security number on the
employment verification attestation form.
Subsection (b) (``Employment Eligibility Confirmation
Process'') amends subsections (a) and (b) of section 274A to
require the development and use, on a pilot basis, of an
employment eligibility confirmation mechanism.
Section 274A(a)(3) currently provides a defense against
liability for hiring an unauthorized alien if the employer has
complied in good faith with the document-based employment
verification system in section 274A(b). Under this subsection,
section 274A(a)(3) is amended to state that if an employer who
(1) employs more than 3 employees and (2) is subject to the
pilot program in 274A(b)(7) does not obtain appropriate
confirmation through the new mechanism of the identity, social
security number, and work eligibility of an individual through
this process, this defense does not apply. To preserve the
defense, an employer must make an inquiry through the mechanism
within 3 working days after the date of hiring, unless the
confirmation mechanism has registered that not all inquiries
were responded to during that time, in which case the inquiry
can be made on the first subsequent working day in which the
confirmation mechanism is responding to all inquiries. The
employer also must receive a confirmation within a time to be
specified in regulations by the Attorney General (but not to
exceed 10 working days), in order to preserve the defense.
Section 274A(b)(3) currently provides that the employer
must retain for a period of 3 years the verification form
completed by the employee. This subsection amends section
274A(b)(3) to incorporate the requirements in amended section
274A(a)(3) regarding use of the confirmation mechanism to
verify the accuracy of information provided on the form, and to
require that the employer retain both the verification form as
well as the receipt of confirmation for at least 3 years after
the date of hiring, recruiting, or referral of the employee. It
will be unlawful for an employer with more than 3 employees to
hire an individual without complying with the new confirmation
mechanism set out in section 274A(b)(3).
Section 274A(b)(6) is amended to require the Attorney
General (or a designee that may include a private entity) to
respond to inquiries by employers, through a toll-free
telephone line or other electronic media, in the form of a
confirmation code signifying whether or not an individual is
authorized to be employed. The Attorney General shall establish
expedited procedures to confirm the validity of information
used under the confirmation mechanism in cases in which
confirmation is sought but not provided by the mechanism. The
confirmation mechanism shall be designed to maximize the
reliability and ease of use of the confirmation process
consistent with protecting the privacy and security of the
underlying information, and to register all times when the
system is not able to respond to all inquiries on whether
individuals are authorized to be employed. The mechanism shall
compare the name and social security account number and, in
certain instances, the alien identification number, supplied by
the new employee against records of the Social Security
Administration and the INS to determine the validity of the
information provided and whether or not the individual has
presented a social security number or an alien number that is
not valid for employment. The Attorney General shall provide a
confirmation or tentative nonconfirmation within 3 working days
of the initial inquiry. The Attorney General, in consultation
with the Commissioner of Social Security and the Commissioner
of INS, shall designate an expedited time period (not to exceed
10 days) within which final confirmation or denial must be
provided through the confirmation mechanism. No social security
information may be disclosed or released.
No individual shall be denied employment because of
inaccurate or inaccessible data in the confirmation mechanism,
and the Attorney General shall provide a timely and accessible
process for challenging failures to confirm eligibility for
employment. If an individual would not have been dismissed from
a job but for an error of the confirmation mechanism, the
individual is entitled to compensation through the mechanism of
the Federal Tort Claims Act. The Attorney General also shall
implement a program of testers and investigative activities to
monitor and prevent unlawful discrimination through use of the
mechanism. No person shall be civilly or criminally liable for
any action taken in good faith reliance on information provided
through the confirmation mechanism.
A new section 274A(b)(7) is added to require that the new
requirements for employers added in subsection (b) shall only
be implemented (and tested for reliability and ease of use)
through pilot projects in at least 5 of the 7 States with the
highest estimated population of unauthorized aliens. The pilot
projects shall be started within 6 months of the date of
enactment, and shall terminate by no later than October 1,
1999. The confirmation mechanism shall not be established in
other States unless Congress so provides by law. The Attorney
General shall issue annual reports, beginning in 1997, on the
development and implementation of the mechanism in the pilot
states. The reports may include information on whether the
mechanism: is reliable and easy to use; limits to less than 1
percent job loss due to inaccurate information; increases or
decreases discrimination; protects individual privacy; and
burdens employers with costs or administrative requirements.
Subsection (c) amends section 274A(a) by adding a new
paragraph (6), to reduce paperwork requirements for the
subsequent employers of certain employees whose eligibility to
work has been confirmed by a prior employer. This provision
applies in the case of an individual who is employed under a
collective bargaining agreement entered into with an
association of two or more employers, whose prior employer has
complied with the employment verification process, and whose
subsequent employer is a member of the same multi-employer
association. The period during which this deeming can take
place is up to 5 years in the case of a United States national
or an alien lawfully admitted for permanent residence, and 3
years in the case of any other individual.
If an employer who has taken advantage of this provision is
found to have hired an unauthorized alien, that hiring shall be
presumed to be a knowing hire in violation of section 274A(a).
The employer may rebut the presumption by presentation of clear
and convincing evidence.
Subsection (d) strikes subsection (i) through (n) of
section 274A, which are dated provisions.
Subsection (e) sets forth effective dates for the
amendments made by this section. In general, the amendments
shall be effective not later than 180 days after the date of
enactment. The amendments made in subsections (a)(1) and (a)(2)
(regarding reductions in the number of documents that may be
presented by new employees) shall be effective not later than
18 months after enactment. The amendments made in subsection
(c) (paperwork reduction) shall apply to all individuals hired
on or after 60 days after enactment.
In addition, the Attorney General shall within 180 days of
enactment issue regulations which provide for electronic
storage of the I-9 form, in satisfaction of the record
retention requirements in section 274A(b)(3).
Sec. 404--Reports on earnings of aliens not authorized to work
This section revises section 290(c) of the INA to require
that the Social Security Administration (SSA) report to
Congress on the number of social security numbers issued to
aliens not authorized to be employed in the United States for
which earnings were reported to the SSA. After January 1, 1996,
if earnings are reported to the SSA for any such social
security account number, the SSA shall report to the Attorney
General the name and address of the person for whom the
earnings were reported and the name and address of the person
(employer) reporting the earnings.
Sec. 405--Authorizing maintenance of certain information on aliens
This section amends section 264 of the INA to clarify that
the Attorney General may require any alien to provide his or
her social security number to include in any record of the
alien.
Sec. 406--Limiting liability for certain technical violations of
paperwork requirements
This section amends section 274A(e)(1) to provide that an
employer shall not be considered to have been in violation of
the verification requirements based upon a technical or
procedural failure to meet a requirement unless the INS has
explained the basis for the failure and given the employer 10
business days to correct it, and the employer has not corrected
the failure during that period.
Sec. 407--Unfair immigration-related employment practices
Subsection (a) amends section 274B(g)(2) to require that
employers subject to a final order for an immigration-related
unfair employment practice be ordered to retain records for
each person applying for employment for a period up to 3 years
and be fined not less than $250 nor more than $2000 for each
individual discriminated against.
Subsection (b) amends section 274B(a)(6) by providing that
in the case of an employee who has presented a time-limited
work authorization document to satisfy section 274A(b)(1), an
employer may request a document proving that employment
authorization has been renewed. The amendment also provides
that if the employer has reason to believe that an alien who
has presented a document valid on its face is nevertheless an
unauthorized alien, the employer may inform the employee of the
questions regarding the document's validity and the employer's
intention to verify its validity. If the verification confirms
that the employee is unauthorized to work, the employee may be
discharged with no benefits or rights accruing on the basis of
the period employed.
TITLE V--REFORM OF LEGAL IMMIGRATION SYSTEM
Sec. 500--Overview of new legal immigration system
This section provides an overview of the legal immigration
system that will be in effect beginning with fiscal year 1997.
Subtitle A--Worldwide Numerical Limits
Sec. 501--Worldwide numerical limitation on family-sponsored immigrants
This section amends section 201(c) to provide for a
worldwide level for family-sponsored immigrants of 330,000.
This level is to be reduced (but not below 110,000) for each
fiscal year by the number of spouses and children of citizens
admitted as immigrants in the previous fiscal year. There will
be no limit on admission of spouses and children of citizens.
The number of visas available to spouses and children of lawful
permanent residents would not go below 85,000, and the number
for parents of United States citizens would not go below
25,000. Any excess in family immigration above 330,000 would
come from other unused immigrant visas.
Reductions for excess family-based admissions would be
computed in the following manner. The number of excess family
admissions is the extent to which the number of family-based
immigrant visas exceeded 330,000 in a given fiscal year. This
excess would first be offset by the number of unused immigrant
visas in that year in the employment-based categories. If any
excess remained (``net excess''), the worldwide family level
for the following fiscal year would be reduced by the amount of
the net excess (but not below 110,000: 85,000 for the spouses
and children of lawful permanent residents, and 25,000 for the
parents of citizens). If any excess still remained (``remaining
excess''), there would be reductions during the following
fiscal year of up to half of the otherwise available visas in
the category for investors (total available = 10,000). Any
remaining excess (``carryforward excess'') would be carried
over into the calculations for subsequent fiscal years and
would be drawn down by similar borrowing in following fiscal
years from the investor category.
Sec. 502--Worldwide numerical limitation on employment-based immigrants
This section amends section 201(d) to provide that the
worldwide level for employment-based immigrants is 135,000.
This number may be reduced by the number of investor visas (not
to exceed 5,000) used to offset excess family admissions (see
section 501), and also by the number of visas (not to exceed
5,000) made available under section 512 to meet excess demand
in the category for adult sons and daughters.
Sec. 503--Worldwide numerical limitation on diversity immigrants
This section amends section 201(e) to provide that the
worldwide level of diversity immigrants is 27,000 for each
fiscal year.
Sec. 504--Establishment of numerical limitations on humanitarian
immigrants
This section amends subsections (a)(4) and (f) of section
201 to provide a worldwide level of humanitarian immigrants
equal to 70,000 for each fiscal year (95,000 for FY 1997). The
worldwide level shall be reduced by the number of aliens (not
to exceed 50,000, or 75,000 in FY 1997, unless the number is
increased by Congress) who were admitted as non-emergency
refugees under section 207 in the previous year, by the number
of aliens granted asylum who adjusted status under section
209(b) in the previous year, and by the number of aliens who
were granted relief under suspension of deportation (current
section 244(a)), section 240A (cancellation of removal) and 249
(registry) in the prior fiscal year.
Sec. 505--Requiring congressional review and reauthorization of
worldwide levels every 5 Years
This section amends section 201 by adding a new subsection
(g), providing that each fifth fiscal year starting in 2004,
the Congress, after thorough review of appropriate immigration
levels by the Committees on the Judiciary of the House and the
Senate, shall authorize by law the worldwide levels to apply
beginning with the second subsequent fiscal year (i.e., FY
2006). The worldwide levels specified previously in section 201
are applicable only for the period of such authorization.
Subtitle B--Changes in Preference System
Sec. 511--Limitation of immediate relatives to spouses and children
This section amends section 201(b)(2)(A) to substitute the
phrase ``spouses and children of a citizen of the United
States'' in place of ``immediate relatives.''
This section also adds a new subsection (i) to section
204, to provide that the age of an alien child being issued an
immigrant visa as a nuclear family member shall be determined
as of the date of the filing of a classification petition under
section 204(a)(1). This is to prevent such children from
``aging out'' of eligibility to immigrate if they turn 21 while
waiting for a visa to become available.
Sec. 512--Change in family-sponsored classification
Subsection (a) amends section 203(a) by striking
paragraphs (1) through (4) (the current family-sponsored
preference categories) and inserting new paragraphs (1), (2),
and (3).
Section 203(a)(1) defines as the first family-sponsored
preference category the spouses and children of aliens lawfully
admitted for permanent residence. The number for this category
is not to exceed 85,000, plus any unused visas in the second
category.
Section 203(a)(2) defines the second family-sponsored
preference category as the parents of U.S. citizens. The number
of visas assigned to this category is the lesser of 45,000 or
the number by which the worldwide level calculated under
amended section 201(c) exceeds 85,000, but shall not be less
than 25,000. Such aliens may only be admitted if they meet
certain insurance requirements in new section 212(a)(4)(D).
Section 203(a)(3) defines the third family-sponsored
preference category as the adult sons and daughters of either a
citizen of the United States or of a lawful permanent resident,
provided that the son or daughter is less than 26 years of age,
never-married, childless, and eligible, but for the residence
requirements, to be declared as a dependent for Federal income
tax purposes. The number of visas available for this category
shall be the lesser of 5,000 or the number by which the
worldwide family level exceeds the sum of 85,000 plus the
number of visas used for parents of U.S. citizens under section
203(a)(2). If the demand for such visas exceeds 5,000 (or the
lesser number referred to in the previous sentence), up to
5,000 additional visas may be made available by reducing the
number of visas in the employment-based categories in
proportion to the visa numbers allocated for each of those
categories. A son or daughter admitted under this category
shall be admitted on a conditional basis. The Attorney General
shall issue regulations for the removal of conditional status
similar to those set forth in section 216A. An alien in such
status must demonstrate that he or she met the requirements for
admission in this category on the date of approval of the
alien's classification petition.
Subsection (b) amends section 212(a)(4) (the public charge
ground for inadmissibility, as amended by section 621 of H.R.
2202) by adding a new subparagraph (D). This provision requires
that an alien who seeks admission as a parent must demonstrate
to the satisfaction of the Attorney General and the consular
officer that the alien will have adequate health insurance
comparable to that provided under the Medicare program (title
XVIII) of the Social Security Act), and long-term health
coverage comparable to that provided under the Medicaid program
(title XIX). In making this determination, the Attorney General
shall take into account the age of the parent and the
likelihood of the parent securing health insurance through
employment.
Sec. 513--Change in employment-based classification
Subsection (a) amends section 203(b) by striking
paragraphs (1) through (5) (the current employment-based
preference categories) and inserting new paragraphs (1) through
(6).
Paragraph (1) defines as the first employment-based
preference category aliens with extraordinary ability, and
assigns to this category visas not to exceed 15,000. This
category includes aliens currently defined in section
203(b)(1)(A).
Paragraph (2) defines as the second employment-based
preference category aliens who are outstanding professors and
researchers or multinational executives and managers, and
assigns to this category visas not to exceed 30,000, plus any
visas not required under paragraph (1). This category includes
aliens currently defined in section 203(b)(1)(B) and (C).
Paragraph (3) defines as the third employment-based
preference category aliens who are members of the professions
holding advanced degrees or aliens of exceptional ability, and
assigns to this category visas not to exceed 30,000, plus any
unused visas from the previous categories. This category
includes aliens currently defined in section 203(b)(2) as
members of the professions holding advanced degrees or aliens
of exceptional ability.
Aliens admitted under paragraph (3) are subject to the
labor certification requirement under section 212(a)(5)(A).
This requirement may be waived in the national interest if such
action is necessary to substantially benefit the national
defense, national security, or law enforcement; health care,
housing, or educational opportunities in a low-income
population or in an underserved area; economic or employment
opportunities for a specific industry or geographic area; the
development of new technologies; or environmental protection or
the productive use of natural resources. An alien admitted on
such a waiver must engage in a specific undertaking to advance
one or more of these interests.
Paragraph (4) defines as the fourth employment-based
preference category skilled workers and professionals, and
assigns to this category visas not to exceed 45,000, plus any
unused visas from the previous categories. Under subparagraph
(B), an alien is a skilled worker if the alien is capable of
performing skilled labor requiring at least 2 years training or
experience, not of a temporary or seasonal nature, for which
qualified workers are not available in the United States, and
who has a total of 4 years of training or experience (or both)
with respect to such labor. Under subparagraph (C)(i), an alien
is a professional if the alien holds a baccalaureate degree and
has at least 2 years experience in the profession after such
degree. Under subparagraph (C)(ii), an alien who is a teacher
and has within the previous 5 years at least 2 years of
experience teaching a language other than English full-time
also may be admitted as a professional if the alien is seeking
admission to teach such language at an accredited elementary or
middle school. A labor certification under section 212(a)(5)(A)
also is required for immigrants under this paragraph.
Paragraph (5) defines as the fifth employment-based
preference category investors seeking admission for the purpose
of engaging in a new commercial enterprise in which the alien
has invested $1 million and will employ full-time not less than
10 U.S. citizens or lawful permanent residents. Visas assigned
are not to exceed 10,000, less the reduction provided in
section 201(c)(5)(A) for excess family-based admissions. This
section also provides for establishment of a pilot program to
permit in fiscal years 1997 and 1998 the issuance of 2,000 of
these investor visas to immigrants willing to invest $500,000
in an enterprise that will employ 5 full-time employees. The
Attorney General shall submit a report to Congress in 1998 on
the operation of this pilot program, with recommendations.
Paragraph (6) defines as the sixth employment-based
preference category qualified special immigrants defined in
section 101(a)(27), with 5,000 assigned visas, not more than
4,000 of which may be issued to special religious workers under
section 101(a)(27)(C)(ii)(II) or (III).
Paragraph (7) is the new designation for current paragraph
(6), dealing with special K immigrants.
Paragraph (8) provides that work experience as an
unauthorized alien shall not be taken into account in
calculating the experience required under this subsection.
Subsection (b) adds a new section 216B to the INA, under
which the provisions of section 216A regarding conditional
permanent resident status shall apply to foreign language
teachers admitted under section 203(b)(3)(C)(ii). Such teachers
shall remain in conditional status for a period of five years,
less the number of years the teacher spent teaching a language
other than English full-time at the elementary or middle school
level during the 5 years immediately prior to obtaining
conditional permanent resident status.
Sec. 514--Changes in diversity immigrant program
Subsection (a) amends section 203(c)(1)(B)(ii) to provide
that the Attorney General shall identify, within each region,
the 10 states which had the highest number of registrants for
the diversity immigrant program between October 1, 1994 and
September 30, 1996, and which are not high-admission states.
This subsection also amends section 203(c)(1)(E) to provide
that only natives of these 10 states in each region are
eligible for diversity visas.
Subsection (b) amends section 203(c)(1)(F) to strike the
designation of Northern Ireland as a separate foreign state and
by treating Mexico as part of North America.
Subsection (c) amends section 203(c)(2) to provide that an
alien is not eligible for a diversity visa unless the alien has
a verified job offer in the United States; at least a high
school education or its equivalent; and at least two years
experience in an occupation which requires 2 years of training.
Subsection (d) amends section 203(c) by adding a new
paragraph (4), providing that the Secretary of State may set
fees for processing applications and issuing visas under the
diversity program, and adding a new paragraph (5), providing
that no alien who is unlawfully present in the United States at
the time of filing an application, or has been unlawfully
present within the previous 5 years or at any time subsequent
to the application, is eligible for a diversity visa.
Sec. 515--Authorization to require periodic confirmation of
classification petitions
Subsection (a) amends section 204(b) to add a new paragraph
(2) providing that the Attorney General may provide that an
approved classification petition shall expire not less than two
years after the date of approval unless the petitioner files a
prescribed form to reconfirm the continued intention of the
petitioner to seek admission of the alien and to update the
contents of the petition.
Subsection (b) provides that, with exceptions to ensure
that no previously-filed petition expires before October 1,
2000, the amendments made by subsection (a) shall not apply to
classification petitions filed before October 1, 1996.
Sec. 516--Changes in special immigrant status
Subsection (a) repeals certain obsolete special immigrant
provisions.
Subsection (b) amends section 101(a)(27) to provide special
immigrant status for certain NATO civilian employees.
Subsection (c) adopts a conforming amendment to section
101(a)(15)(N) regarding nonimmigrant status for certain parents
of special immigrant children.
Subsection (d) amends section 101(a)(27)(C)(ii) to extend
the sunset date for the religious worker special immigrant
category to FY 2005.
Subsection (e) makes additional conforming amendments.
Subsection (f) provides that, unless otherwise specified,
the amendments made by this section shall be effective on the
date of enactment.
Sec. 517--Requirements for removal of conditional status of
entrepreneurs
Subsection (a) revises section 216A(b)(1)(B)(ii) to provide
that the conditional permanent resident status of an alien
entrepreneur may be terminated if it is determined that the
alien did not invest the requisite capital and employ the
requisite number of employees throughout substantially the
entire period [up to 2 years] since the alien's admission. A
good faith exception is provided for an alien who attempts to
meet the capital investment and employment requirements but is
unable to do so due to circumstances beyond the alien's
control. For such an alien, the period for applying for removal
of conditional status and for terminating such status shall be
extended for up to 3 years to enable to alien to meet the
capital and employment requirements for a period of 2 years.
Subsection (b) provides that the amendments in this section
shall apply to aliens admitted on or after the date of
enactment.
Sec. 518--Adult disabled children
This section amends the definition of ``child'' in section
101(b)(1) to include the child of a citizen or lawful permanent
resident, regardless of age, who has never been married, and
who has a severe mental or physical impairment which is likely
to continue indefinitely and causes substantially total
inability to perform functions necessary for independent
living. A child may not be considered disabled unless the
physical or mental impairment is being ameliorated to the
maximum extent reasonably possible given the resources of the
child and the parent.
Sec. 519--Miscellaneous conforming amendments
Subsection (a) makes various conforming amendments relating
to the striking of the term ``immediate relative'' to describe
an immigrant visa category.
Subsection (b) makes a number of conforming amendments for
family-sponsored immigrants. This subsection also revises
paragraph (4) of section 202(a) to provide that 75 percent of
the visas available to family-sponsored immigrants in the new
first preference category (spouses and children of aliens
lawfully admitted for permanent residence) shall not be subject
to the per-country levels in paragraph of section 202(a)(2).
If, for a particular foreign state or dependent area, the
number of aliens admitted in the first preference category
exceeds the per country level, then for purposes of the
operation of section 202(e), all visas shall be deemed to have
been required for the first preference category. No visas then
would be available for the second preference category
(parents).
Subsection (c) makes a number of conforming amendments
relating to employment-based immigrants, including special K
immigrants.
Subtitle C--Refugees, Parole, and Humanitarian Admissions
Sec. 521--Changes in refugee annual admissions
Subsection (a) amends paragraphs (1) and (2) of section
207(a) to provide that the number of annual refugee admissions
designated by the President may not exceed 75,000 in fiscal
year 1997 or 50,000 in any succeeding fiscal year. The number
may exceed these limits if Congress by law provides for a
higher number.
Subsection (b) amends section 207(b) and section
207(d)(3)(B) to strike the modifier ``unforeseen'' before the
word ``emergency.'' The effect of this change is to enable the
President to exercise the authority to admit refugees on an
emergency basis regardless of whether the specific emergency
was foreseen or unforeseen.
Subsection (b) also amends section 207(d)(1) to require
that the President shall report before June 1 of the preceding
fiscal year to the Judiciary Committees of the House and Senate
on the foreseeable number of refugees requiring resettlement.
It also amends section 207(e) to require that the consultation
with respect to the admission of refugees shall occur before
July 1 of the preceding fiscal year and in the case of
emergency refugee admissions, not later than 30 days after the
President proposes such admissions.
The Committee intends that the President's determination of
the annual number of refugee admissions as described in
subsection (a)(1) occur after the consultation process
prescribed in section 207(d)(1). Only in this way will the
consultation process serve its intended purpose of giving
Congress a meaningful role in establishing refugee policy. In
the absence of an emergency, the President's determination
shall not exceed the target established in section 207(a),
although the President can request that Congress raise that
target level be raised.
Sec. 522--Persecution for resistance to coercive population control
methods
Subsection (a) amends the definition of refugee at section
101(a)(42) to provide that a person who has been forced to
abort a pregnancy or to undergo involuntary sterilization, or
who has been persecuted for failure or refusal to undergo such
a procedure or for other resistance to a coercive population
control program shall be deemed to have been persecuted on
account of political opinion, and a person who has a well
founded fear of being compelled to undergo such a procedure or
being subject to such persecution shall be deemed to have a
well founded fear of persecution on account of political
opinion.
Subsection (b) amends section 207(a) to provide that not
more than 1,000 refugees shall be admitted on the basis of
persecution under coercive population control policies.
Further explanation of this provision is set forth in the
preceding discussion of the provisions of H.R. 2202.
Sec. 523--Parole available only on a case-by-case basis for
humanitarian reasons or significant public benefit
Subsection (a) amends section 212(d)(5) to provide that the
Attorney General may on a case-by-case basis parole an alien
into the United States temporarily only for an urgent
humanitarian reason (limited to medical emergencies or the
imminent death of a family member) or for a reason deemed
strictly in the public interest (limited to cases where the
alien's presence is required as a witness or the alien has
assisted the United States Government and the alien's life
would be threatened if not permitted to be in the United
States; or to cases where the alien is to be prosecuted in the
United States for a crime). The Attorney General shall submit a
report not later than 90 days after the end of each fiscal year
reporting on the number and status of aliens paroled.
Subsection (b) makes these changes effective to individuals
paroled into the U.S. on the first month beginning more than 60
days after the date of enactment.
Sec. 524--Admission of humanitarian immigrants
This section amends section 203(c) to provide for the
admission, subject to the worldwide level specified in section
201(e) (as amended by section 503 of this bill), of qualified
immigrants of special humanitarian concern to the U.S. Such
immigrants shall be selected on a case-by-case basis after
having been identified for potential eligibility by the
Attorney General. One acceptable use of this visa might be in a
particularly egregious case of battery, where the battered
alien may not otherwise qualify for relief under the INA. It is
contemplated that the Attorney General will have the discretion
to defer adverse action against a candidate for a humanitarian
visa (who is otherwise deportable) for a short period of time
until a humanitarian visa becomes available.
An alien who is a refugee is not entitled to admission as a
humanitarian immigrant unless there are compelling reasons in
the public interest to admit the alien under this provision
rather than under section 207.
This section also limits issuance of humanitarian visas to
50 percent of a single foreign state's (or 15 percent of a
dependent area's) allotted level of immigrant visas. The
Attorney General may waive the public charge ground of
inadmissibility in the case of a humanitarian immigrant.
Subtitle D--Asylum Reform
Sec. 531--Asylum reform
This section will amend section 208 of the Immigration and
Nationality Act.
Section 208(a) provides that any alien who is physically
present in the United States or at the border of the United
States, regardless of status, is eligible to apply for asylum.
However, an alien is not eligible to apply if the Attorney
General determines that the alien can be returned to a country
(other than the alien's country of nationality or last habitual
residence) in which the alien's life or freedom would not be
threatened on account of race, religion, nationality,
membership in a particular social group, or political opinion,
and where the alien would have access to a full and fair
procedure for determining a claim to asylum or equivalent
temporary protection. The Attorney General may, however, permit
such an alien to apply if it is in the public interest for the
alien to be granted asylum in the United States. An alien also
is not eligible to apply if the alien has not filed an
application within 30 days of arriving in the United States, or
if the alien has previously applied for and been denied asylum;
these bars do not apply if the alien demonstrates the existence
of fundamentally changed circumstances which affect the
applicant's eligibility for asylum. A determination by the
Attorney General that an alien is ineligible to apply for
asylum due to one of these enumerated reasons is not subject to
judicial review.
In applying the time deadline in section 208(a), the
Committee expects that the Attorney General will promulgate a
form of application for asylum in which the applicant will be
required to present only a brief statement of his or her claim,
and which can be completed by the applicant in a brief period
of time, with minimal assistance. Further presentation of the
details of the applicant's claim would be presented prior to or
at the time of the interview by the asylum officer.
Subsection (b) provides that asylum may be granted to an
alien who meets the definition of a refugee under section
101(a)(42) of the INA. Asylum may not be granted to an alien
who has engaged in persecution of others, has been convicted of
a particularly serious crime (including an aggravated felony),
has committed a serious non-political crime outside of the
U.S., is regarded on reasonable grounds as a danger to national
security, is inadmissible on national security or terrorist
grounds, or has been firmly resettled in another country. The
Attorney General may designate by regulation additional
limitations and conditions on eligibility for asylum. A spouse
or child of an alien granted asylum, if accompanying or
following to join such alien, may be given the same status.
Subsection (c) provides that an alien granted asylum shall
not be removed to his country of nationality or last habitual
residence, shall be granted authorization to work, and may be
allowed to travel abroad with prior consent of the Attorney
General. This subsection also provides that asylum may be
terminated if the alien: is no longer a refugee under section
101(a)(42); is ineligible for asylum under subsection (b); may
be returned to a third country where the alien would receive
asylum or other temporary protection; has voluntarily returned
to his country of nationality or last habitual residence with
lawful permanent resident or equivalent status; or has acquired
a new nationality which confers protection on the alien. A
determination that asylum should be terminated is not subject
to judicial review. An alien whose asylum is terminated is
subject to any applicable ground of inadmissibility or
deportation.
Subsection (d) provides that the Attorney General shall
establish procedures for considering applications for asylum.
The applicant must submit fingerprints and a photograph. An
applicant is not entitled to be employed and, unless otherwise
authorized to be employed, cannot be granted permission to work
until at least 180 days after the filing of the asylum
application. The Attorney General may charge a fee for asylum
applications, and may provide for payment over time or in
installments. The alien shall be provided at the time of
application a notice of the consequences of knowingly filing an
application for asylum that is frivolous (including an
application that contains a willful misrepresentation of a
material fact), as well as a current list of attorneys willing
to represent asylum applicants on a pro bono basis.
Subsection (d) also provides that the asylum procedures
shall include the following: that asylum cannot be granted
until the identity of the applicant is checked against all
appropriate records maintained by the Attorney General and the
Secretary of State, including the Automated Visa Lookout
System, to determine if the alien is inadmissible or deportable
from the U.S.; that in the absence of exceptional circumstances
the initial interview on the asylum application shall take
place within 45 days of the application and the administrative
adjudication (not counting administrative appeal) concluded
within 180 days; that administrative appeals are to be filed
within 30 days of initial decision; and that an application may
be dismissed if the alien fails to appear for a scheduled
hearing or interview without advance notice or in the case of
exceptional circumstances. Nothing in subsection (d) shall be
construed to create any substantive or procedural right or
benefit that is enforceable by any party against the United
States.
Subsection (b) makes conforming and clerical amendments.
Subsection (c) provides that the amendments made by this
section shall take effect on the first day of the first month
beginning more than 180 days after the date of enactment.
Sec. 532--Fixing numerical adjustments for asylees at 10,000 each year
This section amends section 209(b) to provide that not more
than 10,000 persons who have been granted asylum may in any one
year adjust to the status of an alien lawfully admitted for
permanent residence.
Sec. 533--Increased resources for reducing asylum application backlogs
This section authorizes the temporary employment, without
reduction in retired pay, retainer pay, or annuity, of former
members of the Armed Forces or retired employees of the Federal
Government to adjudicate applications for asylum pending as of
the date of enactment. This section also authorizes, subject to
the availability of appropriations, an increase to 600 in the
number of asylum officers by FY 1997.
Subtitle E--General Effective Dates; Transition Provisions
Sec. 551--General effective date
The amendments made by this title, unless otherwise
specified, shall take effect October 1, 1996, and apply
beginning with fiscal year 1997.
Sec. 552--General transition for current classification petitions
This section provides for transition of current
classification petitions to the amendments made by this title.
Under subsection (a), any petition filed before October 1,
1996, for immediate relative status under section 201(b)(2)(A)
(as in effect before October 1, 1996), shall be deemed to be an
application for status under amended section 201(b)(2)(A)
(spouse or child) or under amended 203(a)(2) (parent). A
petition filed for preference status under existing section
203(a)(2) (spouse or child of a lawful permanent resident)
shall be deemed on October 1, 1996, to be a petition under
amended section 203(a)(1).
Under subsection (b), similar transition is made for
petitions for employment-based visas filed prior to October 1,
1996.
Under subsection (c), when an immigrant holding an
unexpired immigrant visa issued before October 1, 1996, makes
application for admission, the immigrant's admissibility under
section 212(a)(7)(A) shall be determined as of the date the
visa was issued.
Subsection (d) provides that nothing in this title shall be
construed to affect the following provisions: section 2(c)(1)
of the Virgin Islands Nonimmigrant Alien Adjustment Act of 1982
(Pub. L. 97-271) (waiving application of numerical limitations
to aliens who adjust immigration status under that Act);
section 202(e) of the Immigration Reform and Control Act of
1986 (Pub. L. 99-603) (Cuban-Haitian adjustments); and section
19 of the Immigration and Nationality Act Amendments of 1981
(Pub. L. 97-116).
Sec. 553--Special transition for certain backlogged spouses and
children of lawful permanent resident aliens
This section provides that in addition to immigrant visas
otherwise available, a number of immigrant visas shall be
available in each year from 1997 to 2001 for aliens who have
petitions approved for classification as spouses or minor
children of lawful permanent residents. The number of such
additional visas shall be the greater of 50,000, or 20 percent
of the number of aliens for whom petitions are pending at the
beginning of the fiscal year, and with respect to whom the
petitioning alien became a lawful permanent resident under
section 210 (Special Agricultural Worker legalization) or 245A
(legalization).
The additional visas shall be available in the order in
which the petition for classification of the alien has been
filed with the Attorney General, and shall first be available
to the spouses and children of lawful permanent residents who
did not gain that status under the legalization (section 245A)
or special agricultural worker (section 210) programs. The per
country numerical limitations of section 202 shall not apply
with respect to the additional visa numbers made available
under this section. The Attorney General shall submit a report
to Congress by April 1, 2001, on the operation of this section
and whether it will result in visas being made available on a
current basis by October 1, 2001.
Sec. 554--Special treatment of certain disadvantaged family first
preference immigrants
This section provides that the per country numerical
limitations in section 202(a) shall not apply in the last half
of fiscal year 1996 to the extent necessary to ensure that the
priority date for an alien classified as an unmarried son or
daughter of a citizen is not earlier than the priority date for
aliens classified as unmarried sons and daughters of aliens
lawfully admitted for permanent residence.
This section also provides that additional visa numbers
shall be available in fiscal year 1997 without regard to per
country numerical limitations for alien sons and daughters of
citizens for whom a preference petition was approved as of
September 30, 1996, and whose priority date was earlier than
the priority date for alien sons and daughters of lawful
permanent resident aliens of the same nationality for whom a
petition had been approved on that date.
Sec. 555--Authorization of reimbursement of petitioners for eliminated
family-sponsored categories
Subsection (a) provides that there shall be a procedure to
reimburse, subject to appropriations, all fees required to be
paid under the INA by a petitioner for a family-sponsored visa
in a category eliminated by this bill, provided that the visa
has not been issued and the petition has not been disapproved.
Subsection (b) authorizes the appropriation of funds
necessary to carry out this section.
TITLE VI--RESTRICTIONS ON BENEFITS FOR ILLEGAL ALIENS
Sec. 600--Statements on national policy concerning welfare and
immigration
This section states national policy with respect to welfare
and immigration.
Subtitle A--Eligibility of Illegal Aliens for Public Benefits
Part 1--Public Benefits Generally
Sec. 601--Making illegal aliens ineligible for public assistance,
contracts, and licenses
Subsections (a) and (b) provide that aliens not lawfully
present in the United States are ineligible to receive benefits
under any means-tested program provided or funded, in whole or
in part, by the Federal or State Governments and also are
ineligible to receive any grant, to enter into any contract or
loan agreement, or to be issued or have renewed any
professional or commercial license, provided or funded by the
Federal or State Governments.
Subsection (c) provides that Federal agencies must require
applicants to provide sufficient proof of identity to receive a
Federal contract, grant, loan, or license, or the following
types of public assistance: supplemental security income (SSI);
Aid to Families with Dependent Children (AFDC); social services
block grants; Medicaid; Food Stamps; or housing assistance.
Proof of identity is limited to showing the following
documents: a United States passport (either current or expired
if issued within the previous 20 years and after the individual
has reached the age of 18); a resident alien card; or a State
driver's license or identity card, if presented with the
individual's social security card.
Subsection (d) authorizes State agencies to require proof
of eligibility to receive State assistance.
Subsection (e) provides exceptions to the limitations in
subsections (a) and (b) in the case of an alien who (or whose
child) has been battered or subject to extreme cruelty. The
alien must have applied (or apply within 45 days of the initial
application for benefits) for family-sponsored immigration
status or classification, or cancellation of removal and
adjustment of status, or the alien must be the beneficiary of a
petition for family-sponsored immigration or classification.
The exception terminates if no application setting forth a
prima facie case for such immigration benefits has been filed
or when an application is denied.
The rationale behind this provision is straightforward:
aliens who are in the U.S. illegally should not be entitled to
receive any of the privileges or benefits of membership in
American society. It is unfair to citizens and legal residents
to allow illegal aliens to access public benefits.
No aspect of illegal immigration angers the American people
more than illegal aliens using taxpayer-funded public benefits.
Poll after poll shows that the American people are tired of
footing the bill for those who are in the country illegally.
The passage of Proposition 187 in California, and other similar
movements in Florida and Arizona are evidence of this. While
the availability of public benefits may not be the chief magnet
that draws illegal aliens to the U.S., it is certainly one of
the most powerful. As a matter of national immigration policy,
Congress must remove all of the possible incentives that may
lure illegal aliens to either come to or stay in the U.S. The
Committee believes that, to thoroughly combat illegal
immigration, illegal aliens must not be given taxpayer-funded
public benefits at any level--Federal, State or local.
The prohibition on Federal, State and local contracts,
grants, loans, licenses, and welfare assistance as contained in
this section is not intended to address the issue of alien
eligibility for a basic public education as determined by the
U.S. Supreme Court in Plyler v. Doe.125
\125\ Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786
(1982).
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Sec. 602--Making unauthorized aliens ineligible for unemployment
benefits
This section provides that aliens are ineligible for
unemployment benefits payable in whole or in part out of
Federal funds to the extent such benefits are attributable to
any employment for which the alien had not had authorization.
Benefits providers must make such inquiries as may be necessary
to assure that applicants are eligible.
Sec. 603--General exceptions
This section provides that sections 601 and 602 shall not
apply to the provision of emergency medical services, public
health immunizations, short-term emergency relief, school lunch
programs, child nutrition programs, and family violence
services.
The allowance for treatment of communicable diseases is
very narrow. The Committee intends that it only apply where
absolutely necessary to prevent the spread of such diseases.
This is only a short term measure until the deportation of an
alien who is unlawfully present in the U.S. It is not intended
to provide authority for continued long-term treatment of such
diseases as a means for illegal aliens to delay their removal
from the country. However, it is the Committee's intent to give
public health providers the ability, within the scope of their
professional judgment, to treat individuals who might have, or
require immunization against, communicable diseases. So long as
that judgment was made in good faith it is intended to fall
within the exception for immunizations, testing, and treatment
for communicable diseases. Furthermore, this exception is also
intended to permit health care providers to examine patients
sufficient to determine whether testing, treatment, or
immunization is appropriate.
The allowance for emergency medical services under Medicaid
is very narrow. The Committee intends that it only apply to
medical care that is strictly of an emergency nature, such as
medical treatment administered in an emergency room, critical
care unit, or intensive care unit. The Committee does not
intend that emergency medical services include pre-natal or
delivery care assistance that is not strictly of an emergency
nature as specified herein. The Committee intends that any
provision of services under this exception for mental health
disorders be limited to circumstances in which the alien's
condition is such that he is a danger to himself or to others
and has therefore been judged incompetent by a court of
appropriate jurisdiction.
Sec. 604--Treatment of expenses subject to emergency medical services
exception
Subsection (a) provides that, subject to advance
appropriations, a State or local government that provides
emergency medical services through a public hospital (including
through a contract with another hospital or facility) to an
illegal alien is entitled to receive payment from the Federal
Government for the costs of the services, but only to the
extent that such costs are not reimbursed through any other
Federal program and cannot be recovered from the alien or
another person. Reimbursement also may be made to a hospital
eligible for additional payment adjustment under section
1886(d)(5) of the Social Security Act.
Subsection (b) provides that no payment shall be made
unless the identity and immigration status of the alien has
been verified with the INS. Subsection (c) provides that the
program shall be administered by the Attorney General in
consultation with the Secretary of Health and Human Services.
Subsection (d) provides that subsection (a) shall not apply to
emergency medical services furnished before October 1, 1995.
Sec. 605--Report on disqualification of illegal aliens from housing
assistance programs
This section provides that the Secretary of Housing and
Urban Development shall submit a report within 90 days to
certain committees of Congress describing the manner in which
the Secretary is enforcing section 214 of the Housing and
Community Development Act of 1980.
Sec. 606--Verification of student eligibility for postsecondary federal
student financial assistance
This section provides that no student shall be eligible for
postsecondary Federal student financial assistance unless the
student has certified that he or she is a citizen or national
of the United States, or an alien lawfully admitted for
permanent residence, and the Secretary of Education has
verified such status through a procedure determined by the
Attorney General.
Sec. 607--Payment of public assistance benefits
This section provides that in carrying out the provisions
of this part, payment of means-tested benefits identified in
section 601 (other than those exempted by section 603) shall be
made only through an individual or person who is not ineligible
to receive such benefits under section 601.
Sec. 608--Definitions
This section provides that for purposes of this title, an
alien shall not be considered lawfully present in the U.S.
merely because the alien may be considered to be permanently
residing in the United States under color of law for purposes
of any particular program.
Sec. 609--Regulations and effective dates
This section requires that the Attorney General issue
regulations carrying out this subpart (other than section 605)
within 60 days of enactment. The Attorney General shall apply
section 601 to assistance provided, contracts or loan
agreements entered into, and professional and commercial
licenses issued or renewed at least 30 and not more than 60
days after the date the regulations are first issued, but may
waive this section in the case of applications which are
pending or approved on or before this date. The Attorney
General shall apply section 602 to unemployment benefits
provided on or after a date at least 30 and not more than 60
days after the date the regulations are first issued, but may
waive this section in the case of applications for benefits
pending as of this date. The Attorney General must broadly
disseminate information regarding these restrictions on
eligibility before the effective dates.
Part 2--Earned Income Tax Credit
Sec. 611--Earned income tax credit denied to individuals not authorized
to be employed in the United States
This section amends section 32(c)(1) of the Internal
Revenue Code of 1986 by adding a new subparagraph (F),
providing that an individual is not eligible for the earned
income tax credit if the individual does not include a taxpayer
identification number on the tax return. This section also
amends section 32 of the Internal Revenue Code to add a new
subsection (k), providing that a taxpayer identification number
means a social security account number other than one that has
been issued to an individual not authorized to work in the U.S.
Subtitle B--Expansion of Disqualification from Immigration Benefits on
the Basis of Public Charge
Sec. 621--Ground for inadmissibility
This section amends paragraph (4) of section 212(a) (public
charge exclusion ground) to provide that a family-sponsored
immigrant or nonimmigrant is inadmissible if the alien cannot
demonstrate that the alien's age, health, family status,
education, skills, or a combination thereof, or an affidavit of
support, or both, make it unlikely that the alien will become a
public charge. An employment-based immigrant is inadmissible,
other than an immigrant of extraordinary ability, unless the
immigrant has a valid job offer at the time of immigration. An
employment-based immigrant who receives a visa by virtue of a
job offer from a business owned by a relative, or from a
business in which a relative has a significant ownership
interest, is inadmissible (inadmissible) unless the relative
has executed an affidavit of support.
Sec. 622--Ground for deportability
This section amends paragraph (5) of redesignated section
237(a) (public charge deportation ground) to provide that an
alien is deportable if the alien becomes a public charge within
7 years of admission from causes arising before entry or
admission. The ground may be waived in the case of an alien who
is admitted as a refugee or granted asylum. An alien is
considered a public charge if he or she receives benefits under
(1) Supplemental Security Income, (2) Aid to Families with
Dependent Children, (3) Medicaid, (4) Food Stamps, (5) State
General Assistance or (6) certain Federal housing assistance,
for an aggregate period of at least 12 months within 7 years of
admission. An alien shall not be considered to be a public
charge on the basis of receipt of emergency medical services,
public health immunizations and short-term emergency relief. In
the case of an alien who (or whose child) has been battered or
subject to extreme cruelty, the aggregate period for receipt of
benefits shall be 48 months within 7 years, if the need for
such benefits has a substantial connection to the abuse, and
may exceed 48 months if the alien can demonstrate that the
abuse is ongoing and has led to an issuance of an
administrative or judicial order, or there has been a prior
determination of abuse by the INS.
Subtitle C--Attribution of Income and Affidavits of Support
Sec. 631--Attribution of sponsor's income and resources to family-
sponsored immigrants
This section provides that in determining the eligibility
and the amount of benefits of an alien for any Federal means-
tested public benefits program, the income and resources of the
alien shall be deemed to include those of the person who
executed an affidavit of support on behalf of such alien, and
that person's spouse. States may act similarly in determining
the eligibility and the amount of benefits of an alien for any
State means-tested public benefits program. Such deeming shall
end for parents of United States citizens at the time the
parent becomes a citizen; for spouses of citizens and lawful
permanent residents at the earlier of 7 years after the date
the spouse becomes an alien lawfully admitted for permanent
residence or the date the spouse becomes a citizen; and for
minor children at the time the child reaches 21 years of age
or, if earlier, the date the child becomes a citizen. The
deeming period may end earlier than specified above if the
alien is employed long enough to qualify for social security
retirement income.
In the case of an alien who (or whose child) has been
battered or subject to extreme cruelty, the deeming
requirements shall not apply for 48 months if the need for such
benefits has a substantial connection to the abuse, or for more
than 48 months if the alien can demonstrate that the abuse is
ongoing and has led to an issuance of an administrative or
judicial order or there has been a prior determination of abuse
by the INS.
For States that choose to follow the Federal model of
deeming that a sponsor's income and resources is available to
the sponsored immigrant for the purpose of qualifying for State
or local means-tested public benefits, those States shall be
deemed by any Federal or State court to have chosen the least
restrictive means available for achieving the compelling
government interest of assuring that aliens be self-reliant in
accordance with national immigration policy.
Sec. 632--Requirements for sponsor's affidavit of support
Subsection (a) of this section amends title II of the INA
by adding a new section 213A.
Section 213A(a) provides that an affidavit of support may
only be accepted as establishing that an alien is not
inadmissible as a public charge if it is executed as a contract
legally enforceable against the sponsor in any Federal or State
court by the Federal Government, and by any State which
provided any means-tested public benefits, for a period 10
years after the alien last received any benefit. Such contract
shall be enforceable with respect to benefits provided for
parents of United States citizens until the time the parent
becomes a citizen; for spouses of United States citizens and
lawful permanent residents at the earlier of 7 years after the
date the spouse becomes an alien lawfully admitted for
permanent residence or the date the spouse becomes a citizen;
and for minor children at the time the child reaches 21 years
of age. The sponsorship period may end earlier than specified
above if the alien is employed long enough to qualify for
social security retirement income.
Section 213A(b) provides that upon notification that a
sponsored alien has received a benefit, the appropriate
official shall request reimbursement from the sponsor. If the
sponsor does not indicate a willingness to reimburse, or fails
to abide by repayment terms, an action may be brought. The
appropriate agency may appoint or hire a person to act on its
behalf in collecting moneys owed. Section 213A(c) provides that
available remedies include those described in sections 3201,
3203, 3204, and 3205 of title 28, U.S. Code, as well as
specific performance, reimbursement of legal fees and
collection costs, and corresponding State law remedies. Section
213A(d) provides that subject to civil penalties, a sponsor
shall notify the federal government and the sponsored alien's
State of residence of any change of address of the sponsor.
Section 213A(e) limits eligibility to sponsor an alien into
the United States to individuals only (not institutions).
Sponsors also must be: the United States citizen or lawful
permanent resident who is petitioning for the alien's
admission, or an individual who will accept joint and several
liability with the petitioner; at least 18 years old; and
domiciled in a State. Finally, sponsors must demonstrate,
through a certified copy of a tax return, the means to maintain
an annual income equal to at least 200 percent of the poverty
level for the individual, the individual's family, and the
sponsored alien and the alien's nuclear family, if any, who
arrive with the alien at the time of the alien's admission. In
the case of an individual who is on active duty in the Armed
Forces, the income requirement is 100 percent of the poverty
level.
Subsection (b) refers to the requirement for an affidavit
of support from individuals who file petitions for a relative
as an employment-based immigrant.
Subsection (c) amends section 316(a) of the INA by adding a
new clause to provide that no person shall be naturalized who
has received assistance under a federal or State means-tested
public benefit program with respect to which amounts may be
owing under an affidavit of support unless he or she provides
satisfactory evidence that there are no outstanding amounts
owed pursuant to such affidavit. This subsection also amends
section 316 by adding a new subsection (g), providing that the
amendment made in section 316(a)(4) shall not apply to a
battered alien spouse or child under specified conditions.
Subsection (d) makes a clerical amendment. Subsections (e)
and (f) provide that the Attorney General shall promulgate
within 90 days of enactment a new standard form for the
affidavit of support that complies with new section 213A(a),
and that the new section 213A(a) shall apply to affidavits of
support executed on a specified date not less than 60 days nor
more than 90 days after promulgation of the new form.
TITLE VII--FACILITATION OF LEGAL ENTRY
Sec. 701--Additional land border inspectors; infrastructure
improvements
This section requires the Attorney General and the
Secretary of the Treasury to increase the number of full-time
land border inspectors in the INS and the Customs Service to a
level adequate to assure full staffing during peak crossing
hours of all border crossing lanes, and that personnel be
deployed in proportion to the number of land border crossings
in the border sectors.
This section also requires that in completing
infrastructure improvements to expedite the inspection of
persons and vehicles seeking lawful admission at land borders,
the Attorney General give priority to those areas where the
need for such improvements is greatest.
Sec. 702--Commuter lane pilot programs
This section amends section 286(q) of the INA and the 1994
Justice appropriations act to permit the expansion of commuter
lane pilot programs at land borders.
Sec. 703--Preinspection at foreign airports
This section amends the INA to create a new section 235A,
providing for the establishment within 2 years of preinspection
stations at 5 of the 10 foreign airports having the greatest
number of departures for the U.S., and to establish an
additional 5 preinspection stations within 4 years.
Sec. 704--Training of airline personnel in detection of fraudulent
documents
Subsection (a) amends section 286(h)(2)(A)(iv) to provide
that funds may expended from the Immigration User Fee Account
for the training of commercial airline personnel in the
detection of fraudulent documents, and that not less than 5
percent of the expenses incurred out of the Account in a given
fiscal year shall be expended for this purpose.
Subsection (b) amends section 212(f) to provide that if a
commercial airline has failed to comply with regulations of the
Attorney General relating to the detection of fraudulent
documents, including the training of personnel, the Attorney
General may suspend the entry of aliens transported to the U.S.
by the airline.
Subsection (c) provides that the Attorney General shall
issue the regulations called for in subsection (b) within 90
days of enactment.
TITLE VIII--MISCELLANEOUS PROVISIONS
Subtitle A--Amendments to the Immigration and Nationality Act
Sec. 801--Nonimmigrant status for spouses and children of members of
the armed services
This section amends section 101(a)(15) by adding a new
subparagraph (T), creating a nonimmigrant category for an alien
who is the spouse or child of another alien who is serving on
active duty in the Armed Forces and is stationed in the U.S.
Sec. 802--Amended definition of aggravated felony
This section amends the definition of aggravated felony in
section 101(a)(43) of the INA, as amended by section 222 of the
Immigration and Nationality Technical Corrections Act of 1994,
to make certain technical corrections and to make the
definition effective to all convictions entered at any time
before, on, or after the date of enactment.
Sec. 803--Authority to determine visa processing procedures
Subsection (a) amends section 202(a)(1) of the INA to
clarify that the Secretary of State has non-reviewable
authority to establish procedures for the processing of
immigrant visa applications and the locations where visas will
be processed.
Subsection (b) amends section 222 by adding a new
subsection (g), providing that an alien who has remained in the
U.S. beyond the authorized period of stay is not eligible to be
admitted to the U.S. as a nonimmigrant unless the alien has
received a visa in a consular office located in the country of
the alien's nationality (or, if there is no such office, at a
consular office designated by the Secretary of State).
Sec. 804--Waiver authority concerning notice of denial of applications
for visas
This section amends section 212(b) of the INA to permit the
Secretary of State to waive, in the case of an alien denied a
visa by a consular officer on the basis of the exclusion
grounds in section 212(a)(2) (criminal activity) or 212(a)(3)
(national security and terrorist), the requirement that the
alien be provided notice of the reason for denial. Currently,
all foreign nationals who are denied a visa are entitled to
notice of the basis for the denial. This creates a difficult
situation in those instances where an alien is denied entry on
the basis, for example, of being a drug trafficker or a
terrorist. Clearly, the information that U.S. government
officials are aware of such drug trafficking or terrorist
activity would be highly valued by the alien and may hamper
further investigation and prosecution of the alien and his or
her confederates.
An alien has no constitutional right to enter the U.S. and
no right to be advised of the basis for the denial of such a
privilege. Thus, there is no impediment to the limitation on
disclosure in this section.
Sec. 805--Treatment of Canadian landed immigrants
This section amends section 212(d)(4)(B) to provide that
the Attorney General may waive the requirements of section
212(a)(7)(b)(i) regarding presentation of documents in the case
of aliens who are granted permanent residence by the government
of a foreign contiguous territory and who are residing in that
territory.
Sec. 806--Changes relating to H-1B nonimmigrants
This section amends section 212(n) to provide for changes
in the statutory and regulatory requirements for visas issued
to nonimmigrants under section 101(a)(15)(H)(i)(B) (``H-1B
visas'').
Subsection (a) provides that no employer shall be required
to have and document an objective system to determine the wages
of workers.
For purposes of determining the actual wage level an
employer pays to individuals with similar experience and
qualifications in the specific employment of an H-1B worker, a
non-H-1B dependent employer (see below for definition) of more
than 1,000 full-time equivalent employees in the United States
may demonstrate that in determining the wages of its H-1B
workers, it utilizes a compensation and benefits system that
has been previously certified by the Secretary of Labor (and
recertified at such intervals the Secretary may designate) to
satisfy the five following conditions: (1) The employer has a
company-wide compensation policy for its full-time equivalent
employees which ensures salary equity among employees similarly
employed, (2) the employer has a company-wide benefits policy
under which all full-time equivalent employees similarly
employed are eligible for substantially the same benefits or
under which some employees may accept higher pay, at least
equal in value to the benefits, in lieu of benefits, (3) the
compensation and benefits policy is communicated to all
employees, (4) the employer has a human resources or
compensation function that administers its compensation system,
and (5) the employer has established documentation for the job
categories in question. An employer's payment of wages to an H-
1B worker consistent with a system which meets these conditions
and which has been certified by the Secretary of Labor shall be
deemed to satisfy the actual wage requirement of section
212(n)(1)(A)(i)(I).
For purposes of determining and enforcing the prevailing
wage level for the occupational classification in the area of
employment of an H-1B worker, employers may provide a published
survey, a State Employment Security Agency determination, a
determination by an accepted private source or any other
legitimate source. The Secretary of Labor shall, no later than
180 days from the date of enactment of this Act, provide for
acceptance of prevailing wage determinations not made by a
State Employment Security Agency. The Secretary must either
accept such a wage determination or issue a written decision
rejecting the determination and detailing the legitimate
reasons that the determination is not acceptable. If a detailed
rejection is not issued within 45 days of receipt by the
Secretary of Labor, the determination will be deemed accepted.
An employer's payment of wages consistent with a prevailing
wage determination not rejected by the Secretary shall be
deemed to satisfy the prevailing wage requirement of section
212(n)(1)(A)(i)(II).
Subsection (b) provides that employers which are non-H-1B
dependent employers do not have to abide by certain regulations
promulgated by the Department of Labor which went into effect
on January 19, 1995. An H-1B dependent employer is defined as
an employer which (1) has fewer than 21 full-time equivalent
employees who are employed in the United States, 4 or more of
whom are H-1B workers, (2) has at least 21 but not more than
150 full-time equivalent employees who are employed in the
United States, 20% or more of whom are H-1B workers, or (3) has
at least 151 full-time equivalent employees who are employed in
the United States, 15 percent or more of whom are H-1B workers.
An alien employed under an H-1B petition shall be treated as an
employee of the employer for purposes of this subsection.
An employer which is H-1B dependent can nevertheless be
treated as non-H-1B dependent for up to five years on a
probationary status if (1) the employer has demonstrated to the
satisfaction of the Secretary of Labor that it has developed a
reasonable plan for reducing its use of H-1B workers over a
five year period to the level of a non-H-1B dependent employer,
and (2) annual reviews of the plan by the Secretary indicate
successful implementation of the plan. If the Secretary
determines that the employer has not met the requirements of
(1) or (2), the probationary status ends and the employer shall
be treated as H-1B dependent until such time as the employer
can prove to the Secretary of Labor that it is no longer H-1B
dependent, as defined previously. All opportunities for
probationary status end five years after the date of enactment.
The regulatory relief provided to non-H-1B dependent
employers includes:
(1) A non-H-1B dependent employer does not have to post a
notice at a worksite visited by an H-1B worker that is within
the area of intended employment listed on that worker's labor
condition application but is not itself listed on the
application.
(2) A non-H-1B dependent employer is not required to file
and have certified an additional labor condition application
(LCA) with respect to an H-1B worker for an area of employment
not listed in the worker's initial LCA because the employer has
placed that or other H-1B workers (who did not have that area
of employment listed in their LCAs) in that area for any period
of time, except that such employer can only place an H-1B
worker in areas of employment not listed in the worker's LCA
for a period exceeding 45 workdays in any 12-month period and
90 workdays in any 3 year period if (1) the employer files and
has certified an additional LCA for the H-1B worker listing
such areas of employment visited after the 45/90 limit is
reached, or (2) the H-1B worker's principal place of employment
has not changed to a non-listed area.
(3) A non-H-1B dependent employer is not required to pay
per diem and transportation costs at any specified rate when
sending H-1Bs to areas of employment not listed in their LCAs.
(4) The Secretary of Labor can file a complaint respecting
an employer's failure to meet a condition specified on an LCA
or misrepresentation of a material fact on an LCA only in the
case of an H-1B dependent employer (including an H-1B dependent
employer which is on probationary status as a non-H-1B
dependent employer when the Secretary is conducting an annual
review of the employer's plan and the review indicates that
there appears to be a violation of an attestation or a
misrepresentation of a material fact). No investigation or
hearing shall be conducted with respect to a non-H-1B dependent
employer except in response to a complaint.
Subsection (c) provides that when filing an LCA, an
employer must attest that within the period beginning six
months before and ending 90 days following the filing of the
application and during the 90 days immediately preceding and
following the filing of any visa petition supported by the
application, the employer has not laid off and will not lay off
protected individuals with substantially equivalent
qualifications and experience in the specific employment as to
which the H-1B worker is sought or employed, unless the
employer will pay a wage to the H-1B worker that is at least
110 percent of the mean of the last wage earned by all such
laid off individuals (or, if greater, at least 110 percent of
the mean of the highest wage earned by all such laid off
individuals within the most recent year if the employer reduced
the wage of any such laid off individual during such year other
than in accordance with a general company-wide reduction of
wages for substantially all employees).
For purposes of the ``no layoff'' provisions in section 806
restricting the ability of an employer to lay off a domestic
worker in the specific employment as to which an H-1B alien is
sought or is employed, the term ``specific employment'' can be
coterminous with a concept such as occupational category
(``engineer''), or it can be narrower in scope. It can also be
coterminous with a broad subcategory of occupational category
(``chemical engineer''), or it can be narrower in scope.
Specific employment means a specific job with specific
responsibilities. For example, in a small company this may be a
job of great breadth--the accountant who does all the books or
the programmer who designs all the software. Conversely, in a
large company this may be very specialized--the engineer whose
job it is to design the gyroscope for a new rocket or the
programmer whose job it is to design a new spreadsheet program.
The question to ask is: ``In the context of a specific
employer, is it reasonable to conclude that a domestic worker
is being replaced by an H-1B alien?'' In any case, merely minor
changes in a job description are not sufficient to change the
specific employment. And an employer cannot shift a domestic
employee from his or her specific employment--in which an H-1B
alien is sought or is employed--to a different job preparatory
to laying him or her off merely as a ruse to avoid the ``no
layoff'' provisions. In such a case, the domestic worker's
specific employment should be considered his or her initial
job.
In the case of an H-1B dependent employer, the employer
shall not place an H-1B worker with another employer where (1)
the H-1B performs his or her duties in whole or in part at
worksite(s) owned, operated, or controlled by the other
employer, and (2) there are indicia of an employment
relationship between the alien and the other employer. This
prohibition will not apply if either (1) the other employer has
executed an attestation that within the period beginning six
months before and ending 90 days following the filing of the
LCA and during the 90 days immediately preceding and following
the filing of any visa petition supported by the LCA the other
employer has not laid off and will not lay off protected
individuals with substantially equivalent qualifications and
experience in the specific employment as to which the H-1B
worker is sought or employed, or (2) the employer pays a wage
to the H-1B worker that is at least 110 percent of the mean of
the last wage earned by all such laid off individuals (or, if
greater, at least 110 percent of the mean of the highest wage
earned by all such laid off individuals within the most recent
year if the other employer reduced the wage of any such laid
off individual during such year other than in accordance with a
general company-wide reduction of wages for substantially all
employees).
The term ``laid off'' refers to the individual's loss of
employment, other than a discharge for inadequate performance,
cause, voluntary departure, or retirement, and does not include
any situation in which the employee is offered a similar job
opportunity with the same employer (or the other employer with
which an H-1B worker is placed by an H-1B dependent employer
referenced in the preceding paragraph) carrying equivalent or
higher compensation and benefits, regardless of whether or not
the employee accepts the offer.
The term ``protected individual'' refers to an individual
who is a citizen or national of the United States or is an
alien who is lawfully admitted for permanent residence, is
granted the status of an alien lawfully admitted for temporary
residence under section 210(a), 210A(a), or 245(a)(1), is
admitted as a refugee under section 207, or is granted asylum
under section 208.
The provisions of section 212(n)(2), including the process
for the receipt, investigation, and disposition of complaints,
the imposition of administrative remedies and back pay, and the
prohibition of the Attorney General from approving an
employer's petitions for alien workers, shall apply to failures
of an employer to comply with the new attestation required of
it under this Act and to complaints respecting a failure of
another employer with which an H-1B worker is placed by an H-1B
dependent employer to comply with the new attestation required
of it under this Act.
Subsection (d) provides for enhanced penalties for
violations of an attestation or misrepresentation of a material
fact in an LCA. Maximum civil penalties are increased to $5,000
per violation. The Attorney General is prohibited from
approving petitions for aliens to be employed by an employer
for a period of at least 1 year in the case of the first
determination of a violation or any subsequent determination of
a non-willful violation occurring within 1 year of that first
violation or any subsequent determination of a non-wilful
violation occurring more than 1 year after the first violation;
for a period of at least 5 years in the case of a determination
of a willful violation occurring more than one year after the
first violation; and at any time in the case of a determination
of a willful violation occurring more than 5 years after a
violation resulting in a bar of at least five years. If a
penalty has been imposed in the case of a willful violation, an
additional punishment consisting of a civil monetary penalty
will be imposed on the employer in an amount equalling twice
the amount of back pay awarded.
When computing the prevailing wage level in the case of an
employee of an institution of higher education or a related or
affiliated nonprofit entity, or a nonprofit scientific research
organization, the level shall only take into account employees
at such institutions and entities in the area of employment.
In general, the changes to the H-1B program contained in
the Act will take effect on the date of enactment and shall
apply to applications filed with the Secretary of Labor on or
after 30 days after the date of enactment. The changes to the
complaint and investigation process shall apply to complaints
filed, and to investigations or hearings initiated, on or after
January 19, 1995.
Sec. 807--Validity of period for visas
Subsection (a) amends section 221(c) to provide that an
immigrant visa shall be valid for a period of six months.
Subsection (b) amends section 221(c) to provide that the
period for validity of a nonimmigrant visa issued to an alien
of one nationality who has been granted refugee status and been
firmly resettled in another country shall be based on the
treatment granted by the country of resettlement to alien
refugees resettled in the U.S.
Sec. 808--Limitation on adjustment of status of individuals not
lawfully present in the United States
Subsection (a) amends section 245(i)(1)(B), as added by
section 605(b) of the Department of State and Related Agencies
Appropriations Act, 1995 (Public Law 103-317, 108 Stat. 1765)
by requiring an application for adjustment of status under this
provision to pay a fee of $2,500.
Subsection (b) strikes section 212(o).
Sec. 809--Limited access to certain confidential INS files
Subsection (a) amends section 245(A)(c)(5) by redesignating
subparagraphs (A) through (C) and by adding a new subparagraph
(C) to permit the Attorney General to make an application to a
Federal judge, and for such Federal judge to authorize
disclosure of information in an application for legalization
for the following purposes: to identify an alien believed to be
dead or severely incapacitated; or for criminal law enforcement
purposes if the alleged criminal activity occurred after the
legalization application was filed and involves terrorist
activity, a crime prosecutable as an aggravated felony (without
regard to length of sentence) or poses an immediate risk to
life or national security. Information limited to the date and
disposition of the application, the alien's immigration status
(but only for the purpose of determining eligibility for relief
from deportation or removal), or criminal convictions (if any)
after the date of the application, may be disclosed for
immigration enforcement purposes without petition to a Federal
judge.
Subsection (b) makes parallel amendments to the
confidentiality provisions in section 210(b) (Special
Agricultural Worker Program).
The purpose of this section is to amend the provisions in
sections 210 and 245A protecting the confidentiality of
applications for legalization and to ensure that information
contained in such applications would not be used for purposes
of immigration law enforcement. A limited waiver of such
confidentiality, subject to prior approval by a federal judge,
is appropriate in order to identify an alien who is dead or
severely incapacitated, or if the alien is alleged to have
committed a serious criminal offense after the date of the
application. Disclosure in these limited circumstances will not
undermine the initial policy of confidentiality. An alien
filing for legalization did not have a reasonable expectation,
under the laws existing at that time, that information in his
or her application could not be used for the purpose of
identifying that alien for compelling circumstances, unrelated
to immigration enforcement, that would arise after the filing
of the application. The government interest in securing such
information is compelling, and the requirement of judicial
approval will further ensure that the legitimate
confidentiality rights of legalization applicants are
protected.
This section also clarifies that information outside of the
actual application for legalization, as well as information
limited to the date and disposition of the application, does
not fall within the original confidentiality provisions on
sections 210 and 245A, and can be used for immigration
enforcement or other purposes without prior judicial approval.
This clarification is needed because in certain circumstances,
these confidentiality provisions have been erroneously
interpreted to prohibit the disclosure of information in INS
files pertaining to the disposition of the application, but not
information contained in the application itself. The plain
language in sections 245A(c)(5) and 210(b) is addressed solely
to the contents of the application, not to information
regarding the disposition of the application or the alien's
subsequent immigration status.
Sec. 810--Change of nonimmigrant application
This section amends section 248 to provide that an alien
whose status is changed under section 248 may apply directly to
the Secretary of State for a visa without having to leave the
United States.
Subtitle B--Other Provisions.
Sec. 831--Commission report on fraud associated with birth certificates
This section amends section 141(c) of the Immigration Act
of 1990 to require that the Commission on Immigration Reform
shall study and submit to Congress, not later than January 1,
1997, a report containing recommendations of methods to reduce
or eliminate the fraudulent use of birth certificates for the
purposes of obtaining identification documents that may be used
to obtain benefits relating to immigration and employment. The
Commission shall consider proposals to adopt national standards
for issuing birth certificates and to limit the issuance of an
individual's birth certificate to any person other than the
individual or his or her representative.
Sec. 832--Uniform vital statistics
This section requires the Secretary of Health and Human
Services, within 2 years of the date of enactment, to establish
a pilot program for 3 of the 5 States with the largest
population of undocumented aliens for linking through
electronic network the vital statistics records of such States.
The network shall provide for the matching of deaths and births
and shall institute measures to protect the integrity of the
records, specifically to prevent fraud against the Government
through use of false birth and death certificates. The
Secretary shall issue a report to Congress not later than 180
days after establishment of the pilot program with
recommendations on how the pilot program could be implemented
as a national network.
Sec. 833--Communication between state and local government agencies,
and the immigration and naturalization service
This section provides that notwithstanding any other
provision of Federal, State, or local law, no State or local
government entity shall prohibit or in any way restrict any
government entity or official from sending to or receiving from
the INS information regarding the immigration status of an
alien in the United States.
The Committee intends to give State and local officials the
authority to communicate with the INS regarding the presence,
whereabouts, and activities of illegal aliens. This section is
designed to prevent any State or local law, ordinance,
executive order, policy, constitutional provision, or decision
of any Federal or State court that prohibits or in any way
restricts any communication between State and local officials
and the INS. The Committee believes that immigration law
enforcement is as high a priority as other aspects of Federal
law enforcement, and that illegal aliens do not have the right
to remain in the U.S. undetected and unapprehended.
Sec. 834--Criminal alien reimbursement costs
This section provides that amounts appropriated to carry
out section 501 of the Immigration Control and Reform Act of
1986 shall be available to carry out section 242(j) of the INA
with respect to undocumented criminal aliens incarcerated by
the political subdivisions of a State.
Sec. 835--Female genital mutilation
This section requires aliens from certain countries
specified by the INS in consultation with the Secretary of
State to be advised prior to or at the time of entry into the
United States of the severe harm caused by female genital
mutilation and the potential legal consequences in the United
States of performing female genital mutilation or of allowing a
child to be subjected to female genital mutilation.
Sec. 836--Designation of portugal as a visa waiver pilot program
country with probationary status
This section designates Portugal as a visa waiver pilot
program country with probationary status under section 217(g)
for each of the fiscal years 1996, 1997, and 1998.
Subtitle C--Technical Corrections.
Sec. 851--Miscellaneous technical corrections
This section makes a number of entirely technical
corrections to the Immigration Reform and Control Act of 1986,
the Immigration and Nationality Technical Corrections Act of
1994, the Immigration and Nationality Act, and other
legislation.
Agency Views
The Administration has not provided a statement of its
views regarding H.R. 2202 as reported by the Committee on
October 24, 1996. The following is a statement of views
received from the Attorney General regarding H.R. 2202 as
introduced on August 4, 1995.
Office of the Deputy Attorney General,
Washington, DC, September 15, 1995.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Chairman Hyde: This letter presents the views of the
Administration concerning H.R. 2202, the ``Immigration in the
National Interest Act of 1995,'' as introduced on August 4,
1995.
Many of the provisions in H.R. 2202 advance the
Administration's four-part strategy to control illegal
immigration. This strategy calls for regaining control of our
borders; removing the job magnet through worksite enforcement;
aggressively pursuing the removal of criminal aliens and other
illegal aliens; and securing from Congress the resources to
assist states with the costs of illegal immigration that are a
result of failed enforcement policies of the past. The
Administration's legislative proposal to advance that strategy
is H.R. 1929, the ``Immigration Enforcement Improvements Act of
1995,'' introduced by Representative Howard Berman on June 27,
1995. We are pleased that the bill before the Committee follows
our policies to a significant extent. Our positions on the
provisions in the bill are summarized in the following
discussion.
title I--deterrence of illegal immigration through improved border
enforcement and pilot programs
The Administration has already demonstrated that our
borders can be controlled when there is a commitment to do so
by the President and Congress. With an unprecedented infusion
of resources since 1993, we have implemented a multi-year
border control strategy of prevention through deterrence. We
have carefully crafted long range strategic plans tailored to
the unique geographic and demographic characteristics of each
border area to restore integrity to the border.
Border Patrol Agents: We have increased the number of
Border Patrol agents by 40% since 1993 and we support a further
increase of 700 agents per year to reach a total strength of at
least 7,281 Border Patrol agents by the end of FY 1998.
Document Security: We support improved security of Border
Crossing Cards and other documents, using advanced technology,
within a reasonable period of time.
Interior Repatriation: We support pilot programs to deter
multiple unauthorized entries, including interior and third
country repatriation.
Penalty for illegal entry: We are currently prosecuting
more repeat criminal alien illegal entry offenders than ever.
Our increase in prosecutions is preferable to a burdensome
civil penalty.
title ii--enhanced enforcement and penalties against alien smuggling;
document fraud
The Administration is aggressively investigating,
apprehending, and prosecuting alien smugglers. H.R. 2202 and
the Administration bill have a common goal of significantly
increasing penalties for alien smuggling, document fraud, and
related crimes. In face, our bill goes beyond the provisions of
H.R. 2202 by making conspiracy to violate the alien smuggling
statutes a RICO predicate and by providing for civil forfeiture
of proceeds of and property used to facilitate alien smuggling.
Penalty increases: We support increases in the sentences
for aliens who fail to obey a deportation order, illegally re-
enter the U.S. after deportation, or commit passport of visa
fraud.
title iii--inspection, apprehension, detention, adjudication, and
removal of inadmissible and deportable aliens
Removals of criminal aliens have increased rapidly during
this Administration. More than four times as many criminal
aliens were removed in 1994 than in 1988. We will nearly triple
the number of criminal alien removals from 20, 138 in FY 93 to
58,200 in FY 96 by streamlining deportation procedures,
expending the Institutional Hearing Program, and enhancing the
international prisoner transfer treaty program. Immigration and
Naturalization Service (INS) technology enhancements have also
played a critical role in removing criminal aliens, as have INS
alternatives to formal deportation, such as stipulated,
judicial, and administrative deportation.
Special exclusion: We support special exclusion provisions
which allow the Attorney General to order an alien excluded and
deported without a hearing before an immigration judge when
extraordinary situations threaten our ability to process cases
and in the case of irregular boat arrivals.
Removal procedures: We support consolidating exclusion and
deportation into one removal process and facilitating telephone
and video hearings which save resources.
Authorization for removals: We urge the Committee to
increase the authorization for funding the detention and
removal of inadmissible or deportable aliens to $177.7 million,
the amount in the President's FY 96 budget request, rather than
the $150 million in H.R. 2202.
Relief from deportation: We support consolidating the
processes and restricting the grounds which permit relief from
deportation.
title iv--enforcement of restrictions against employment
The Administration strongly believes that jobs are the
greatest magnet for illegal immigration and that a
comprehensive effort to deter illegal immigration, particularly
visa overstaying, must make worksite enforcement a top
priority. The Administration is concerned by the cautious steps
back H.R. 2202 takes with regard to enforcement of employer
sanctions and will continue to work with the Committee to
address this priority enforcement area.
Enforcement personnel: The President's FY budget request
calls for 202 new DOL Wage and Hour personnel while H.R. 2202
calls for 150. We support the levels of new INS investigations
personnel and new DOL Wage and Hour personnel requested in the
President's FY 96 budget. These resources will enhance
enforcement of laws prohibiting employment of illegal aliens
and the minimum labor standards laws.
Employment verification: H.R. 2202, in contrast to the
Administration's bill, rejects the principle worksite
enforcement recommendation of the Commission on Immigration
Reform which was to thoroughly test and evaluate verification
techniques before implementing them nationwide. We support
continued pilot projects which will aid in the development of a
system for accurate verification of a potential employee's
status. Such a system will greatly assist employers in meeting
their obligation to hire only authorized workers. Testing what
works--from business impact, cost effectiveness, privacy and
discrimination perspectives--is a necessary prerequisite for a
nationwide verification system.
Employment documents. We strongly support the reduction in
the number of documents that can establish employment
authorization.
title v--reform of legal immigration system
The Administration seeks legal immigration reform that
promotes family reunification, protects U.S. workers from
unfair competition while promoting the global competitiveness
of our employers, and encourages naturalization to encourage
full participation in the national community. The
Administration supports a reduction in the overall level of
legal immigration consistent with these principles.
We are proposing to reform legal immigration in ways that
are consistent with the Jordan Commission's recommendations,
that reduce annual levels of legal immigration, and that reach
those lower numbers faster. We are also proposing a few ideas
on how to use naturalization to reduce the second preference
backlog numbers, which is a priority for the Commission and the
Administration, while maintaining first and third family
preferences for reunification of adult children of U.S.
citizens.
Refugee admissions: We do not support a statutory cap on
the number of refugees resettled in the U.S. Refugee
admissions, which have declined in recent years, are better
determined through the established consultation process between
the President and the Congress.
Asylum proceedings: We do not support extensive changes in
the asylum process which would reverse the significant progress
the Administration has made in the asylum area.
title vi--restrictions on benefits for unauthorized aliens
The Administration supports the denial of benefits to
undocumented immigrants. The only exceptions should include
matters of public health and safety--such as emergency medical
services, immunization and temporary disaster relief
assistance--and every child's right to a public education. In
so doing, care must be taken not to limit or deny benefits or
services to eligible individuals or in instances where denial
does not serve the national interest. The Administration also
supports tightening sponsorship and eligibility rules for non-
citizens and requiring sponsors of legal immigrants to bear
greater responsibility through legally enforceable sponsorship
agreements for those whom they encourage to enter the United
States. The Administration, however, strongly opposes
application of new eligibility and deeming provisions to
current recipients, including the disabled who are exempted
under current law. The Administration also is deeply concerned
about the application of deeming provisions to Medicaid and
other programs where deeming would adversely affect public
health and welfare.
title vii--facilitation of legal entry
The Administration is committed to improving services for
legal entrants, and we support the provisions of this bill
which enable us to do so. We are already conducting commuter
land pilot programs on the Northern border to facilitate
traffic at the ports of entry. Revenues from new service
charges will enable us to hire additional inspectors and to
enhance customer service to the traveling public at land border
ports of entry.
As for air travel, our pre-inspection facilities enable us
to expedite inspection at the arrival airports. In addition, we
are already working with the travel industry to deter illegal
traffic and improve customer services. For the past five years
we have conducted a Carrier Consultant program at both United
States and foreign locations in which we train airline
employees and foreign government officials in the detection of
fraudulent travel documents. This has resulted in a marked
reduction of mala fide arrivals at United States gateway
airports.
title viii--miscellaneous
Adjustment of status: We do not support limiting the class
of aliens who can adjust status under section 245(i) of the
Immigration and Nationality Act. This section has eliminated a
burdensome paper process, and allowed resources to be shifted
to anti-fraud and naturalization efforts.
Mr. Chairman, we want to work with you on bipartisan
immigration enforcement legislation that is in the national
interest. We look forward to working with you to address the
core issues of worksite enforcement, border control, criminal
alien deportation and comprehensive immigration law
enforcement.
The Office of Management and Budget has advised that there
is no objection to the submission of this letter from the
standpoint of the Administration's program.
Sincerely,
Jamie S. Gorelick,
Deputy Attorney General.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3 of rule XIII of the Rules of the
House of Representatives, changes in existing law made by the
bill, as reported, are shown as follows (existing law proposed
to be omitted is enclosed in black brackets, new matter is
printed in italic, existing law in which no change is proposed
is shown in roman):
IMMIGRATION AND NATIONALITY ACT
* * * * * * *
TABLE OF CONTENTS
Title I--General
Sec. 101. Definitions.
Sec. 102. Applicability of title II to certain nonimmigrants.
Sec. 103. Powers and duties of the Attorney General and the
Commissioner.
* * * * * * *
[Sec. 106. Judicial review of orders of deportation and exclusion.]
Title II--Immigration
chapter 1--selection system
Sec. 201. Worldwide level of immigration.
Sec. 202. Numerical limitation to any single foreign state.
Sec. 203. Allocation of immigrant visas.
* * * * * * *
[Sec. 208. Asylum procedure.]
Sec. 208. Asylum.
* * * * * * *
chapter 2--qualifications for admission of aliens; travel control of
citizens and aliens
Sec. 211. Documentary requirements.
Sec. 212. General classes of aliens ineligible to receive visas and
excluded from admission; waivers of inadmissibility.
Sec. 213. Admission of certain aliens on giving bond.
Sec. 213A. Requirements for sponsor's affidavit of support.
* * * * * * *
Sec. 216B. Conditional permanent resident status for certain foreign
language teachers.
* * * * * * *
chapter 3--issuance of entry documents
Sec. 221. Issuance of visas.
Sec. 222. Applications for visas.
Sec. 223. Reentry permits.
[Sec. 224. Immediate relative and special immigrant visas.]
Sec. 224. Visas for spouses and children of citizens and special
immigrants.
[chapter 4--provisions relating to entry and exclusion
[Sec. 231. Lists of alien and citizen passengers arriving or departing;
record of resident aliens and citizens leaving permanently for
foreign country.
[Sec. 232. Detention of aliens for observation and examination.
[Sec. 234. Physical and mental examination.
[Sec. 235. Inspection by immigration officers.
[Sec. 236. Exclusion of aliens.
[Sec. 237. Immediate deportation of aliens excluded from admission or
entering in violation of law.
[Sec. 238. Entry through or from foreign contiguous territory and
adjacent islands; landing stations.
[Sec. 239. Designation of ports of entry for aliens arriving by civil
aircraft.
[Sec. 240. Records of admission.
[chapter 5--deportation; adjustment of status
[Sec. 241. General classes of deportable aliens.
[Sec. 242. Apprehension and deportation of aliens.
[Sec. 242A. Expedited procedures for deportation of aliens convicted of
committing aggravated felonies.
[Sec. 242B. Deportation procedures.
[Sec. 243. Countries to which aliens shall be deported; cost of
deportation.
[Sec. 244. Suspension of deportation; voluntary departure.
[Sec. 244A. Temporary protected status.]
Chapter 4--Inspection, Apprehension, Examination, Exclusion, and
Removal
Sec. 231. Lists of alien and citizen passengers arriving or departing;
record of resident aliens and citizens leaving permanently for
foreign country.
Sec. 232. Detention of aliens for physical and mental examination.
Sec. 233. Entry through or from foreign contiguous territory and
adjacent islands; landing stations.
Sec. 234. Designation of ports of entry for aliens arriving by civil
aircraft.
Sec. 235. Inspection by immigration officers; expedited removal of
inadmissible arriving aliens; referral for hearing.
Sec. 235A. Preinspection at foreign airports.
Sec. 236. Apprehension and detention of aliens not lawfully in the
United States.
Sec. 237. General classes of deportable aliens.
Sec. 238. Expedited removal of aliens convicted of committing
aggravated felonies.
Sec. 239. Initiation of removal proceedings.
Sec. 240. Removal proceedings.
Sec. 240A. Cancellation of removal; adjustment of status.
Sec. 240B. Voluntary departure.
Sec. 240C. Records of admission.
Sec. 241. Detention and removal of aliens ordered removed.
Sec. 242. Judicial review of orders of removal.
Sec. 243. Penalties relating to removal.
Sec. 244. Temporary protected status.
Chapter 5--Adjustment and Change of Status
* * * * * * *
chapter 8--general penalty provisions
Sec. 271. Prevention of unauthorized landing of aliens.
Sec. 272. Bringing in aliens subject to [exclusion] denial of admission
on a health-related ground.
Sec. 273. Unlawful bringing of aliens into United States.
Sec. 274. Bringing in and harboring certain aliens.
Sec. 274A. Unlawful employment of aliens.
Sec. 274B. Unfair immigration-related employment practices.
Sec. 274C. Penalties for document fraud.
Sec. 274D. Civil penalties for failure to depart.
Sec. 275. Entry of alien at improper time or place; misrepresentation
and concealment of facts.
Sec. 276. Reentry of [deported] removed alien.
Sec. 277. Aiding or assisting certain aliens to enter the United
States.
* * * * * * *
chapter 9--miscellaneous
Sec. 281. Nonimmigrant visa fees.
Sec. 282. Printing of reentry permits and blank forms of manifests and
crew lists.
Sec. 283. Travel expenses and expense of transporting remains of
immigration officers and employees who die outside of the
United States.
* * * * * * *
Sec. 293. Deposit of and interest on cash received to secure
immigration bonds.
Sec. 294. Undercover investigation authority.
* * * * * * *
Title V--Special Removal Procedures for Alien Terrorists
Sec. 501. Definitions.
Sec. 502. Establishment of special removal court; panel of attorneys to
assist with classified information.
Sec. 503. Application for initiation of special removal proceeding.
Sec. 504. Consideration of application.
Sec. 505. Special removal hearings.
Sec. 506. Consideration of classified information.
Sec. 507. Appeals.
Sec. 508. Detention and custody.
TITLE I--GENERAL
definitions
Section 101. (a) As used in this Act--
(1) * * *
* * * * * * *
(6) The term ``border crossing identification card'' means a
document of identity bearing that designation issued to an
alien who is lawfully admitted for permanent residence, or to
an alien who is a resident in foreign contiguous territory, by
a consular officer or an immigration officer for the purpose of
crossing over the borders between the United States and foreign
contiguous territory in accordance with such conditions for its
issuance and use as may be prescribed by regulations. Such
regulations shall provide that (A) each such document include a
biometric identifier (such as the fingerprint or handprint of
the alien) that is machine readable and (B) an alien presenting
a border crossing identification card is not permitted to cross
over the border into the United States unless the biometric
identifier contained on the card matches the appropriate
biometric characteristic of the alien.
* * * * * * *
[(13) The term ``entry'' means any coming of an alien into
the United States, from a foreign port or place or from an
outlying possession, whether voluntarily or otherwise, except
that an alien having a lawful permanent residence in the United
States shall not be regarded as making an entry into the United
States for the purposes of the immigration laws if the alien
proves to the satisfaction of the Attorney General that his
departure to a foreign port or place or to an outlying
possession was not intended or reasonably to be expected by him
or his presence in a foreign port or place or in an outlying
possession was not voluntary: Provided, That no person whose
departure from the United States was occasioned by deportation
proceedings, extradition, or other legal process shall be held
to be entitled to such exception.]
(13)(A) The terms ``admission'' and ``admitted'' mean, with
respect to an alien, the entry of the alien into the United
States after inspection and authorization by an immigration
officer.
(B) An alien who is paroled under section 212(d)(5) or
permitted to land temporarily as an alien crewman shall not be
considered to have been admitted.
(C) An alien lawfully admitted for permanent residence in the
United States shall not be regarded as seeking an admission
into the United States for purposes of the immigration laws
unless the alien--
(i) has abandoned or relinquished that status,
(ii) has engaged in illegal activity after having
departed the United States,
(iii) has departed from the United States while under
legal process seeking removal of the alien from the
United States, including removal proceedings under this
Act and extradition proceedings,
(iv) has been convicted of an aggravated felony,
unless since such conviction the alien has been granted
relief under section 240A(a), or
(v) is attempting to enter at a time or place other
than as designated by immigration officers or has not
been admitted to the United States after inspection and
authorization by an immigration officer.
* * * * * * *
(15) The term ``immigrant'' means every alien except an alien
who is within one of the following classes of nonimmigrant
aliens--
(A) * * *
* * * * * * *
(K) an alien who is the fiancee or fiance of a
citizen of the United States and who seeks to enter the
United States solely to conclude a valid marriage with
the petitioner within ninety days after [entry]
admission, and the minor children of such fiancee or
fiance accompanying him or following to join him;
* * * * * * *
(N)(i) the parent of an alien accorded the status of
special immigrant under paragraph (27)(I)(i) (or under
analogous authority under paragraph (27)(L)), but only
if and while the alien is a child, or (ii) a child of
such parent or of an alien accorded the status of a
special immigrant under clause (ii), (iii), or (iv) of
paragraph (27)(I) (or under analogous authority under
paragraph (27)(L));
* * * * * * *
(R) an alien, and the spouse and children of the
alien if accompanying or following to join the alien,
who--
(i) for the 2 years immediately preceding the
time of application for admission, has been a
member of a religious denomination having a
bona fide nonprofit, religious organization in
the United States; and
(ii) seeks to enter the United States for a
period not to exceed 5 years to perform the
work described in subclause (I), (II), or (III)
of paragraph (27)(C)(ii); [or]
(S) subject to section [214(j)] 214(k), an alien--
(i) * * *
(ii) who the Secretary of State and the
Attorney General jointly determine--
(I) is in possession of critical
reliable information concerning a
terrorist organization, enterprise, or
operation;
(II) is willing to supply or has
supplied such information to Federal
law enforcement authorities or a
Federal court;
(III) will be or has been placed in
danger as a result of providing such
information; and
(IV) is eligible to receive a reward
under section 36(a) of the State
Department Basic Authorities Act of
1956,
and, if the Attorney General (or with respect to clause
(ii), the Secretary of State and the Attorney General
jointly) considers it to be appropriate, the spouse,
married and unmarried sons and daughters, and parents
of an alien described in clause (i) or (ii) if
accompanying, or following to join, the alien[.]; or
(T) an alien who is the spouse or child of a another
alien who is serving on active duty in the Armed Forces
of the United States during the period in which the
other alien is stationed in the United States.
* * * * * * *
(17) The term ``immigration laws'' includes this Act and all
laws, conventions, and treaties of the United States relating
to the immigration, exclusion, deportation, [or expulsion]
expulsion, or removal of aliens.
* * * * * * *
(27) The term ``special immigrant'' means--
(A) * * *
[(B) an immigrant who was a citizen of the United
States and may, under section 324(a) or 327 of title
III, apply for reacquisition of citizenship;]
(C) an immigrant, and the immigrant's spouse and
children if accompanying or following to join the
immigrant, who--
(i) for at least 2 years immediately
preceding the time of application for
admission, has been a member of a religious
denomination having a bona fide nonprofit,
religious organization in the United States;
(ii) seeks to enter the United States--
(I) solely for the purpose of
carrying on the vocation of a minister
of that religious denomination,
(II) before October 1, [1997] 2005,
in order to work for the organization
at the request of the organization in a
professional capacity in a religious
vocation or occupation, or
(III) before October 1, [1997] 2005,
in order to work for the organization
(or for a bona fide organization which
is affiliated with the religious
denomination and is exempt from
taxation as an organization described
in section 501(c)(3) of the Internal
Revenue Code of 1986) at the request of
the organization in a religious
vocation or occupation; and
(iii) has been carrying on such vocation,
professional work, or other work continuously
for at least the 2-year period described in
clause (i);
(D) an immigrant who is an employee, or an honorably
retired former employee, of the United States
Government abroad, or of the American Institute in
Taiwan, and who has performed faithful service for a
total of fifteen years, or more, and his accompanying
spouse and children: Provided, That the principal
officer of a Foreign Service establishment (or, in the
case of the American Institute in Taiwan, the Director
thereof), in his discretion, shall have recommended the
granting of special immigrant status to such alien in
exceptional circumstances and the Secretary of State
approves such recommendation and finds that it is in
the national interest to grant such status;
[(E) an immigrant, and his accompanying spouse and
children, who is or has been an employee of the Panama
Canal Company or Canal Zone Government before the date
on which the Panama Canal Treaty of 1977 (as described
in section 3 (a)(1) of the Panama Canal Act of 1979)
enters into force, who was resident in the Canal Zone
on the effective date of the exchange of instruments of
ratification of such Treaty, and who has performed
faithful service as such an employee for one year or
more;
[(F) an immigrant, and his accompanying spouse and
children, who is a Panamanian national and (i) who,
before the date on which such Panama Canal Treaty of
1977 enters into force, has been honorably retired from
United States Government employment in the Canal Zone
with a total of 15 years or more of faithful service,
or (ii) who on the date on which such Treaty enters
into force, has been employed by the United States
Government in the Canal Zone with a total of 15 years
or more of faithful service and who subsequently is
honorably retired from such employment or continues to
be employed by the United States Government in an area
of the former Canal Zone or continues to be employed by
the United States Government in an area of the former
Canal Zone;
[(G) an immigrant, and his accompanying spouse and
children, who was an employee of the Panama Canal
Company or Canal Zone government on the effective date
of the exchange of instruments of ratification of such
Panama Canal Treaty of 1977, who has performed faithful
service for five years or more as such an employee, and
whose personal safety, or the personal safety of whose
spouse or children, as a direct result of such Treaty,
is reasonably placed in danger because of the special
nature of any of that employment;
[(H) an immigrant, and his accompanying spouse and
children, who--
[(i) has graduated from a medical school or
has qualified to practice medicine in a foreign
state,
[(ii) was fully and permanently licensed to
practice medicine in a State on January 9,
1978, and was practicing medicine in a State on
that date,
[(iii) entered the United States as a
nonimmigrant under subsection (a)(15)(H) or
(a)(15)(J) before January 10, 1978, and
[(iv) has been continuously present in the
United States in the practice or study of
medicine since the date of such entry;]
* * * * * * *
(J) an immigrant (i) who has been declared dependent
on a juvenile court located in the United States or
whom such a court has legally committed to, or placed
under the custody of, an agency or department of a
State and who has been deemed eligible by that court
for long-term foster care, and (ii) for whom it has
been determined in administrative or judicial
proceedings that it would not be in the alien's best
interest to be returned to the alien's or parent's
previous country of nationality or country of last
habitual residence; except that no natural parent or
prior adoptive parent of any alien provided special
immigrant status under this subparagraph shall
thereafter, by virtue of such parentage, be accorded
any right, privilege, or status under this Act; [or]
(K) an immigrant who has served honorably on active
duty in the Armed Forces of the United States after
October 15, 1978, and after original lawful enlistment
outside the United States (under a treaty or agreement
in effect on the date of the enactment of this
subparagraph) for a period or periods aggregating--
(i) 12 years and who, if separated from such
service, was never separated except under
honorable conditions, or
(ii) 6 years, in the case of an immigrant who
is on active duty at the time of seeking
special immigrant status under this
subparagraph and who has reenlisted to incur a
total active duty service obligation of at
least 12 years,
and the spouse or child of any such immigrant if
accompanying or following to join the immigrant, but
only if the executive department under which the
immigrant serves or served recommends the granting of
special immigrant status to the immigrant[.]; or
(L) an immigrant who would be described in clause
(i), (ii), (iii), or (iv) of subparagraph (I) if any
reference in such a clause--
(i) to an international organization
described in paragraph (15)(G)(i) were treated
as a reference to the North American Treaty
Organization (NATO);
(ii) to a nonimmigrant under paragraph
(15)(G)(iv) were treated as a reference to a
nonimmigrant classifiable under NATO-6 (as a
member of a civilian component accompanying a
force entering in accordance with the
provisions of the NATO Status-of-Forces
Agreement, a member of a civilian component
attached to or employed by an Allied
Headquarters under the ``Protocol on the Status
of International Military Headquarters'' set up
pursuant to the North Atlantic Treaty, or as a
dependent); and
(iii) to the Immigration Technical
Corrections Act of 1988 or to the Immigration
and Nationality Technical Corrections Act of
1994 were a reference to the Immigration in the
National Interest Act of 1995.
* * * * * * *
(30) The term ``passport'' means any travel document issued
by competent authority showing the bearer's origin, identity,
and nationality if any, which is valid for the [entry]
admission of the bearer into a foreign country.
* * * * * * *
(42) The term ``refugee'' means (A) any person who is outside
any country of such person's nationality or, in the case of a
person having no nationality, is outside any country in which
such person last habitually resided, and who is unable or
unwilling to return to, and is unable or unwilling to avail
himself or herself of the protection of, that country because
of persecution or a well-founded fear of persecution on account
of race, religion, nationality, membership in a particular
social group, or political opinion, or (B) in such
circumstances as the President after appropriate consultation
(as defined in section 207(e) of this Act) may specify, any
person who is within the country of such person's nationality
or, in the case of a person having no nationality, within the
country in which such person is habitually residing, and who is
persecuted or who has a well-founded fear of persecution on
account of race, religion, nationality, membership in a
particular social group, or political opinion. The term
``refugee'' does not include any person who 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. For purposes
of determinations under this Act, a person who has been forced
to abort a pregnancy or to undergo involuntary sterilization,
or who has been persecuted for failure or refusal to undergo
such a procedure or for other resistance to a coercive
population control program, shall be deemed to have been
persecuted on account of political opinion, and a person who
has a well founded fear that he or she will be forced to
undergo such a procedure or subject to persecution for such
failure, refusal, or resistance shall be deemed to have a well
founded fear of persecution on account of political opinion.
(43) The term ``aggravated felony'' means--
(A) murder;
* * * * * * *
(K) an offense that--
(i) relates to the owning,
controlling, managing, or supervising
of a prostitution business; or
(ii) is described in section 1581,
1582, 1583, 1584, 1585, or 1588[,] of
title 18, United States Code (relating
to peonage, slavery, and involuntary
servitude);
* * * * * * *
(N) an offense described in section 274(a)(1)
[of title 18, United States Code] of this Act
(relating to alien smuggling) for the purpose
of commercial advantage;
(O) an offense described in section 1546(a)
of title 18, United States Code (relating to
document fraud) [which constitutes trafficking
in the documents described in such section for
which the term of imprisonment imposed
(regardless of any suspicion of such
imprisonment) is at least 5 years], for the
purpose of commercial advantage;
* * * * * * *
(Q) an attempt or conspiracy to commit an
offense described in this paragraph.
The term applies to an offense described in this
paragraph whether in violation of Federal or State law
and applies to such an offense in violation of the law
of a foreign country for which the term of imprisonment
was completed within the previous 15 years.
Notwithstanding any other provision of law, the term
applies for all purposes to convictions entered before,
on, or after the date of enactment of the Immigration
and Nationality Technical Corrections Act of 1994.
* * * * * * *
(47) The term ``stowaway'' means any alien who obtains
transportation without the consent of the owner, charterer,
master or person in command of any vessel or aircraft through
concealment aboard such vessel or aircraft. A passenger who
boards with a valid ticket is not to be considered a stowaway.
(48) The term ``conviction'' means a formal judgment of guilt
entered by a court or, if adjudication of guilt has been
withheld, where all of the following elements are present:
(A) A judge or jury has found the alien guilty or the
alien has entered a plea of guilty or nolo contendere
or has admitted sufficient facts to warrant a finding
of guilt.
(B) The judge has ordered some form of punishment,
penalty, or restraint on the alien's liberty to be
imposed.
(C) A judgment or adjudication of guilt may be
entered if the alien violates the terms of the
probation or fails to comply with the requirements of
the court's order, without availability of further
proceedings regarding the alien's guilt or innocence of
the original charge.
(b) As used in titles I and II--
(1) The term ``child'' means an unmarried person under
twenty-one years of age who is--
(A) a child born in wedlock;
* * * * * * *
(D) a child born out of wedlock, by, through whom, or
on whose behalf a status, privilege, or benefit is
sought by virtue of the relationship of the child to
its natural mother or to its natural father if the
father has or had a bona fide parent-child relationship
with the person;
(E) a child adopted while under the age of sixteen
years if the child has been in the legal custody of,
and has resided with, the adopting parent or parents
for at least two years: Provided, That no natural
parent of any such adopted child shall thereafter, by
virtue of such parentage, be accorded any right,
privilege, or status under this Act; [or]
(F) a child, under the age of sixteen at the time a
petition is filed in his behalf to accord a
classification [as an immediate relative under section
201(b)] as a child of a citizen of the United States,
who is an orphan because of the death or disappearance
of, abandonment or desertion by, or separation or loss
from, both parents, or for whom the sole or surviving
parent is incapable of providing the proper care and
has in writing irrevocably released the child for
emigration and adoption; who has been adopted abroad by
a United States citizen and spouse jointly, or by an
unmarried United States citizen at least twenty-five
years of age, who personally saw and observed the child
prior to or during the adoption proceedings; or who is
coming to the United States for adoption by a United
States citizen and spouse jointly, or by an unmarried
United States citizen at least twenty-five years of
age, who have or has complied with the preadoption
requirements, if any, of the child's proposed
residence: Provided, That the Attorney General is
satisfied that proper care will be furnished the child
if admitted to the United States: Provided further,
That no natural parent or prior adoptive parent of any
such child shall thereafter, by virtue of such
parentage, be accorded any right, privilege, or status
under this Act[.]; or
(G) a child of a citizen or national of the United
States or lawful permanent resident alien, regardless
of age, who has never been married, and who has a
severe mental or physical impairment, or combination of
mental or physical impairments, which--
(i) is likely to continue indefinitely; and
(ii) causes substantially total inability to
perform functions necessary for independent
living, including but not necessarily limited
to 3 or more of the following areas of major
life activity--
(I) self-care,
(II) interpersonal communication,
(III) learning,
(IV) mobility, and
(V) self-direction:
Provided, That no child may be considered to be a child
within the meaning of this subparagraph on the basis,
in whole or in part, of any physical or mental
impairment that is not being ameliorated through
medical treatment to the maximum extent reasonably
possible given the ability and resources of such child
and the citizen, national, or lawful permanent resident
alien who is the child's parent.
* * * * * * *
[(4) The term ``special inquiry officer'' means any
immigration officer who the Attorney General deems specially
qualified to conduct specified classes of proceedings, in whole
or in part, required by this Act to be conducted by or before a
special inquiry officer and who is designated and selected by
the Attorney General, individually or by regulation, to conduct
such proceedings. Such special inquiry officer shall be subject
to such supervision and shall perform such duties, not
inconsistent with this Act, as the Attorney General shall
prescribe.]
(4) The term ``immigration judge'' means an attorney whom the
Attorney General appoints as an administrative judge within the
Executive Office for Immigration Review, qualified to conduct
specified classes of proceedings, including a hearing under
section 240. An immigration judge shall be subject to such
supervision and shall perform such duties as the Attorney
General shall prescribe, but shall not be employed by the
Immigration and Naturalization Service.
* * * * * * *
(c) As used in title III--
(1) The term ``child'' means an unmarried person under
twenty-one years of age and includes a child legitimated under
the law of the child's residence or domicile, or under the law
of the father's residence or domicile, whether in the United
States or elsewhere, and, except as otherwise provided in
sections 320[, 321, and 322] and 321 of title III, a child
adopted in the United States, if such legitimation or adoption
takes place before the child reaches the age of sixteen years,
and the child is in the legal custody of the legitimating or
adopting parent or parents at the time of such legitimation or
adoption.
* * * * * * *
(f) For the purposes of this Act--
No person shall be regarded as, or found to be, a person of
good moral character who, during the period for which good
moral character is required to be established, is, or was--
(1) * * *
* * * * * * *
(3) a member of one or more of the classes of
persons, whether [excludable] inadmissible or not,
described in paragraphs (2)(D), (6)(E), and (9)(A) of
section 212(a) of this Act; or subparagraphs (A) and
(B) of section 212(a)(2) and subparagraph (C) thereof
of such section (except as such paragraph relates to a
single offense of simple possession of 30 grams or less
of marihuana); if the offense described therein, for
which such person was convicted or of which he admits
the commission, was committed during such period;
* * * * * * *
(g) For the purposes of this Act any alien ordered deported
or removed (whether before or after the enactment of this Act)
who has left the United States, shall be considered to have
been deported or removed in pursuance of law, irrespective of
the source from which the expenses of his transportation were
defrayed or of the place to which he departed.
* * * * * * *
applicability of title ii to certain nonimmigrants
Sec. 102. Except as otherwise provided in this Act, for so
long as they continue in the nonimmigrant classes enumerated in
this section, the provisions of this Act relating to
ineligibility to receive visas and the [exclusion or
deportation] removal of aliens shall not be construed to apply
to nonimmigrants--
(1) * * *
* * * * * * *
powers and duties of the attorney general and the commissioner
Sec. 103. (a) * * *
* * * * * * *
(c)(1) * * *
(2) Such information shall include information on the alien
population in the United States, on the rates of naturalization
and emigration of resident aliens, on aliens who have been
admitted, paroled, or granted asylum, on nonimmigrants in the
United States (by occupation, basis for admission, and duration
of stay), on aliens who have [been excluded or deported] not
been admitted or have been removed from the United States, on
the number of applications filed and granted for [suspension of
deportation] cancellation of removal, and on the number of
aliens estimated to be present unlawfully in the United States
in each fiscal year.
* * * * * * *
(e)(1) The Attorney General shall continue to provide for
such programs (including intensive language training programs)
of inservice training for full-time and part-time personnel of
the Border Patrol in contact with the public as will
familiarize the personnel with the rights and varied cultural
backgrounds of aliens and citizens in order to ensure and
safeguard the constitutional and civil rights, personal safety,
and human dignity of all individuals, aliens as well as
citizens, within the jurisdiction of the United States with
whom such personnel have contact in their work.
(2) The Attorney General shall provide that the annual report
of the Service include a description of steps taken to carry
out paragraph (1).
* * * * * * *
[judicial review of orders of deportation and exclusion
[Sec. 106. (a) The procedure prescribed by, and all the
provisions of chapter 158 of title 28, United States Code,
shall apply to, and shall be the sole and exclusive procedure
for, the judicial review of all final orders of deportation
heretofore or hereafter made against aliens within the United
States pursuant to administrative proceedings under section
242(b) or pursuant to section 242A of this Act or comparable
provisions of any prior Act, except that--
[(1) a petition for review may be filed not later
than 90 days after the date of the issuance of the
final deportation order, or, in the case of an alien
convicted of an aggravated felony (including an alien
described in section 242A), not later than 30 days
after the issuance of such order;
[(2) the venue of any petition for review under this
section shall be in the judicial circuit in which the
administrative proceedings before a special inquiry
officer were conducted in whole or in part, or in the
judicial circuit wherein is the residence, as defined
in this Act, of the petitioner, but not in more than
one circuit;
[(3) the action shall be brought against the
Immigration and Naturalization Service, as respondent.
Service of the petition to review shall be made upon
the Attorney General of the United States and upon the
official of the Immigration and Naturalization Service
in charge of the Service district in which the office
of the clerk of the court is located. The service of
the petition for review upon such official of the
Service shall stay the deportation of the alien pending
determination of the petition by the court, unless the
court otherwise directs or unless the alien is
convicted of an aggravated felony (including an alien
described in section 242A), in which case the Service
shall not stay the deportation of the alien pending
determination of the petition of the court unless the
court otherwise directs;
[(4) except as provided in clause (B) of paragraph
(5) of this subsection, the petition shall be
determined solely upon the administrative record upon
which the deportation order is based and the Attorney
General's findings of fact, if supported by reasonable,
substantial, and probative evidence on the record
considered as a whole, shall be conclusive;
[(5) whenever any petitioner, who seeks review of an
order under this section, claims to be a national of
the United States and makes a showing that his claim is
not frivolous, the court shall (A) pass upon the issues
presented when it appears from the pleadings and
affidavits filed by the parties that no genuine issue
of material fact is presented; or (B) where a genuine
issue of material fact as to the petitioner's
nationality is presented, transfer the proceedings to a
United States district court for the district where the
petitioner has his residence for hearing de novo of the
nationality claim and determination as if such
proceedings were originally initiated in the district
court under the provisions of section 2201 of title 28,
United States Code. Any such petitioner shall not be
entitled to have such issue determined under section
360(a) of this Act or otherwise;
[(6) whenever a petitioner seeks review of an order
under this section, any review sought with respect to a
motion to reopen or reconsider such an order shall be
consolidated with the review of the order;
[(7) if the validity of a deportation order has not
been judicially determined, its validity may be
challenged in a criminal proceeding against the alien
for violation of subsection (d) or (e) of section 242
of this Act only by separate motion for judicial review
before trial. Such motion shall be determined by the
court without a jury and before the trial of the
general issue. Whenever a claim to United States
nationality is made in such motion, and in the opinion
of the court, a genuine issue of material fact as to
the alien's nationality is presented, the court shall
accord him a hearing de novo on the nationality claim
and determine that issue as if proceedings had been
initiated under the provisions of section 2201 of title
28, United States Code. Any such alien shall not be
entitled to have such issue determined under section
360(a) of this Act or otherwise. If no such hearing de
novo as to nationality is conducted, the determination
shall be made solely upon the administrative record
upon which the deportation order is based and the
Attorney General's findings of fact, if supported by
reasonable, substantial and probative evidence on the
record considered as a whole, shall be conclusive. If
the deportation order is held invalid, the court shall
dismiss the indictment and the United States shall have
the right to appeal to the court of appeals within
thirty days. The procedure on such appeals shall be as
provided in the Federal rules of criminal procedure. No
petition for review under this section may be filed by
any alien during the pendency of a criminal proceeding
against such alien for violation of subsection (d) or
(e) of section 242 of this Act;
[(8) nothing in this section shall be construed to
require the Attorney General to defer deportation of an
alien after the issuance of a deportation order because
of the right of judicial review of the order granted by
this section, or to relieve any alien from compliance
with subsections (d) and (e) of section 242 of this
Act. Nothing contained in this section shall be
construed to preclude the Attorney General from
detaining or continuing to detain an alien or from
taking him into custody pursuant to subsection (c) of
section 242 of this Act at any time after the issuance
of a deportation order;
[(9) it shall not be necessary to print the record or
any part thereof, or the briefs, and the court shall
review the proceedings on a typewritten record and on
typewritten briefs; and
[(10) any alien held in custody pursuant to an order
of deportation may obtain judicial review thereof by
habeas corpus proceedings.
[(b) Notwithstanding the provisions of any other law, any
alien against whom a final order of exclusion has been made
heretofore or hereafter under the provisions of section 236 of
this Act or comparable provisions of any prior Act may obtain
judicial review of such order by habeas corpus proceedings and
not otherwise.
[(c) An order of deportation or of exclusion shall not be
reviewed by any court if the alien has not exhausted the
administrative remedies available to him as of right under the
immigration laws and regulations or if he has departed from the
United States after the issuance of the order. Every petition
for review or for habeas corpus shall state whether the
validity of the order has been upheld in any prior judicial
proceeding, and, if so, the nature and date thereof, and the
court in which such proceeding took place. No petition for
review or for habeas corpus shall be entertained if the
validity of the order has been previously determined in any
civil or criminal proceeding, unless the petition presents
grounds which the court finds could not have been presented in
such prior proceeding, or the court finds that the remedy
provided by such prior proceeding was inadequate or ineffective
to test the validity of the order.
[(d)(1) A petition for review or for habeas corpus on behalf
of an alien against whom a final order of deportation has been
issued pursuant to section 242A(b) may challenge only--
[(A) whether the alien is in fact the alien described
in the order;
[(B) whether the alien is in fact an alien described
in section 242A(b)(2);
[(C) whether the alien has been convicted of an
aggravated felony and such conviction has become final;
and
[(D) whether the alien was afforded the procedures
required by section 242A(b)(4).
[(2) No court shall have jurisdiction to review any issue
other than an issue described in paragraph (1).]
TITLE II--IMMIGRATION
Chapter 1--Selection System
worldwide level of immigration
Sec. 201. (a) In General.--Exclusive of aliens described in
subsection (b), aliens born in a foreign state or dependent
area who may be issued immigrant visas or who may otherwise
acquire the status of an alien lawfully admitted to the United
States for permanent residence are limited to--
(1) * * *
(2) employment-based immigrants described in section
203(b) (or who are admitted under section 211(a) on the
basis of a prior issuance of a visa to their
accompanying parent under section 203(b)), in a number
not to exceed in any fiscal year the number specified
in subsection (d) for that year, and not to exceed in
any of the first 3 quarters of any fiscal year 27
percent of the worldwide level under such subsection
for all of such fiscal year; [and]
(3) for fiscal years beginning with fiscal year 1995,
diversity immigrants described in section 203(c) (or
who are admitted under section 211(a) on the basis of a
prior issuance of a visa to their accompanying parent
under section 203(c)) in a number not to exceed in any
fiscal year the number specified in subsection (e) for
that year, and not to exceed in any of the first 3
quarters of any fiscal year 27 percent of the worldwide
level under such subsection for all of such fiscal
year[.]; and
(4) for fiscal years beginning with fiscal year 1997,
humanitarian immigrants described in section 203(e) (or
who are admitted under section 211(a) on the basis of a
prior issuance of a visa to their accompanying parent
under section 203(e)) in a number not to exceed in any
fiscal year the number specified in subsection (f) for
that year, and not to exceed in any of the first 3
quarters of any fiscal year 27 percent of the worldwide
level under such subsection for all of such fiscal
year.
(b) Aliens Not Subject to Direct Numerical Limitations.--
Aliens described in this subsection, who are not subject to the
worldwide levels or numerical limitations of subsection (a),
are as follows:
(1)(A) Special immigrants described in subparagraph
(A) [or (B)] of section 101(a)(27).
* * * * * * *
(C) Aliens whose status is adjusted to permanent
residence under section 210[, 210A,] or 245A.
(D) Aliens whose [deportation is suspended] removal
is canceled under section [244(a)] 240A(a).
(E) Aliens provided permanent resident status under
section 249.
(2)(A)(i) [Immediate relatives.--For purposes of this
subsection, the term ``immediate relatives'' means the
children, spouses, and parents of a citizen of the
United States, except that, in the case of parents,
such citizens shall be at least 21 years of age.] An
alien who is a spouse or child of a citizen of the
United States. In the case of an alien who was the
spouse of a citizen of the United States for at least 2
years at the time of the citizen's death 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] a spouse
of a citizen of the United States 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.
(ii) Aliens admitted under section 211(a) on the
basis of a prior issuance of a visa to their
accompanying parent who is [such an immediate relative]
a spouse of a citizen of the United States.
(B) Aliens born to an alien lawfully admitted for
permanent residence during a temporary visit abroad.
[(c) Worldwide Level of Family-Sponsored Immigrants.--(1)(A)
The worldwide level of family-sponsored immigrants under this
subsection for a fiscal year is, subject to subparagraph (B),
equal to--
[(i) 480,000, minus
[(ii) the number computed under paragraph (2), plus
[(iii) the number (if any) computed under paragraph
(3).
[(B)(i) For each of fiscal years 1992, 1993, and 1994,
465,000 shall be substituted for 480,000 in subparagraph
(A)(i).
[(ii) In no case shall the number computed under subparagraph
(A) be less than 226,000.
[(2) The number computed under this paragraph for a fiscal
year is the sum of the number of aliens described in
subparagraphs (A) and (B) of subsection (b)(2) who were issued
immigrant visas or who otherwise acquired the status of aliens
lawfully admitted to the United States for permanent residence
in the previous fiscal year.
[(3)(A) The number computed under this paragraph for fiscal
year 1992 is zero.
[(B) The number computed under this paragraph for fiscal year
1993 is the difference (if any) between the worldwide level
established under paragraph (1) for the previous fiscal year
and the number of visas issued under section 203(a) during that
fiscal year.
[(C) The number computed under this paragraph for a
subsequent fiscal year is the difference (if any) between the
maximum number of visas which may be issued under section
203(b) (relating to employment-based immigrants) during the
previous fiscal year and the number of visas issued under that
section during that year.]
(c) Worldwide Level of Family-Sponsored Immigrants.--
(1) In general.--Subject to the succeeding provisions
of this subsection, the worldwide level of family-
sponsored immigrants under this subsection (in this
subsection referred to as the ``worldwide family
level'') for a fiscal year is 330,000.
(2) Reduction for spouses and children of united
states citizens and certain other family-related
immigrants.--The worldwide family level for a fiscal
year shall be reduced (but not below a number
sufficient to provide for the minimum visa numbers
described in paragraph (4)) by the number of aliens
described in subsection (b)(2) who were issued
immigrant visas or who otherwise acquired the status of
aliens lawfully admitted to the United States for
permanent residence in the previous fiscal year.
(3) Further reduction for any previous excess family
immigration.--
(A) In general.--If there are excess family
admissions in a particular fiscal year (as
determined under subparagraph (B)) beginning
with fiscal year 1997, then for the following
fiscal year the worldwide family level shall be
reduced (but not below a number sufficient to
provide for the minimum visa numbers described
in paragraph (4)) by the net number of excess
admissions in that particular fiscal year (as
defined in subparagraph (C)).
(B) Determination of excess family
admissions.--For purposes of subparagraph (A),
there are excess family admissions in a fiscal
year if--
(i) the number of aliens who are
issued immigrant visas or who otherwise
acquire the status of aliens lawfully
admitted to the United States for
permanent residence under section
203(a) or subsection (b)(2) in a fiscal
year, exceeds
(ii) 330,000, less the carryforward
number of excess admissions for the
previous fiscal year (as defined in
subparagraph (D)).
For purposes of this subparagraph, immigrant
visa numbers issued under section 553 of the
Immigration in the National Interest Act of
1995 (relating to certain transition
immigrants) shall not be counted under clause
(i).
(C) Net number of excess admissions.--For
purposes of subparagraph (A), the ``net number
of excess admissions'' for a fiscal year is--
(i) the excess described in
subparagraph (B) for the fiscal year,
reduced (but not below zero) by
(ii) the number (if any) by which the
worldwide level under subsection (d)
for the previous fiscal year exceeds
the number of immigrants who are issued
immigrant visas or who otherwise
acquire the status of aliens lawfully
admitted to the United States for
permanent residence under section
203(b) in that previous fiscal year.
(D) Carryforward number of excess
admissions.--For purposes of subparagraph
(B)(ii), the carryforward number of excess
admissions for a particular fiscal year is the
net number of excess admissions for the
previous fiscal year (as defined in
subparagraph (C)), reduced by the reductions
effected under subparagraph (A) and paragraph
(5) in visa numbers for the particular fiscal
year.
(4) No reduction in number of spouses and children of
lawful permanent residents or parents of united states
citizens.--
(A) Spouses and children of lawful permanent
residents.--Any reductions in the worldwide
family level for a fiscal year under paragraph
(2) or (3) shall not reduce the number of visas
available to spouses and children of lawful
permanent residents below 85,000.
(B) Parents of united states citizens.--Any
reductions in the worldwide family level for a
fiscal year under paragraph (2) or (3) shall
not reduce the number of visas available to
parents of United States citizens below 25,000.
(5) Adjustment in certain employment-based visa
numbers in case of remaining excess family
admissions.--
(A) In general.--If there is a remaining
excess number of family admissions (as
described in subparagraph (B)) in a fiscal year
(beginning with fiscal year 1997) that is
greater than zero, then for the following
fiscal year there shall be reductions in
immigrant visa numbers made available under
subsection (d) and section 203(b)(4) by the
lesser of--
(i) the remaining excess number of
family admissions (described in
subparagraph (B)), or
(ii) \1/2\ of the maximum number of
visa numbers that could (but for this
paragraph) otherwise be made available
under section 203(b)(5) in such
following fiscal year.
(B) Remaining excess number of family
admissions described.--For purposes of
subparagraph (A), the ``remaining excess number
of family admissions'' in a fiscal year is the
net number of excess admissions for the fiscal
year (as defined in paragraph (3)(C)), reduced
by the reduction (if any) effected under
paragraph (3) in visa numbers for the
succeeding fiscal year.
[(d) Worldwide Level of Employment-Based Immigrants.--(1) The
worldwide level of employment-based immigrants under this
subsection for a fiscal year is equal to--
[(A) 140,000, plus
[(B) the number computed under paragraph (2).
[(2)(A) The number computed under this paragraph for fiscal
year 1992 is zero.
[(B) The number computed under this paragraph for fiscal year
1993 is the difference (if any) between the worldwide level
established under paragraph (1) for the previous fiscal year
and the number of visas issued under section 203(b) during that
fiscal year.
[(C) The number computed under this paragraph for a
subsequent fiscal year is the difference (if any) between the
maximum number of visas which may be issued under section
203(a) (relating to family-sponsored immigrants) during the
previous fiscal year and the number of visas issued under that
section during that year.]
(d) Worldwide Level of Employment-Based Immigrants.--The
worldwide level of employment-based immigrants under this
subsection for a fiscal year is--
(1) 135,000, minus
(2) beginning with fiscal year 1998, the total of the
reductions (if any) in visa numbers under section
203(a)(3)(C) made for the fiscal year pursuant to
subsection (c)(5) and in visa numbers under this
subsection for the fiscal year pursuant to section
203(a)(3)(B)(ii)(II).
[(e) Worldwide Level of Diversity Immigrants.--The worldwide
level of diversity immigrants is equal to 55,000 for each
fiscal year.]
(e) Worldwide Level of Diversity Immigrants.--The worldwide
level of diversity immigrants is equal to 27,000 for each
fiscal year.
(f) Worldwide Level of Humanitarian Immigrants.--
(1) In general.--Subject to the succeeding provisions
of this subsection, the worldwide level of humanitarian
immigrants (in this subsection referred to as the
``worldwide humanitarian level'') under this subsection
for a fiscal year is equal to 70,000.
(2) Reduction for humanitarian immigrants who are
refugees or asylees.--The worldwide humanitarian level
for a fiscal year shall be reduced by the sum of--
(A) 50,000, or, if less, the number of aliens
who were admitted as refugees under section 207
in the previous fiscal year, and
(B) the number of aliens who had been granted
asylum whose status was adjusted in the
previous fiscal year under section 209(b).
(3) Reduction for prior year cancellation of removal
and registry.--The worldwide humanitarian level for a
fiscal year shall be further reduced by the sum of--
(A) the number of aliens whose removal was
canceled and who were provided lawful permanent
resident status in the previous fiscal year
under section 240A, and
(B) the number of aliens who were provided
permanent resident status in the previous
fiscal year under section 249.
(4) Limitation.--In no case shall the worldwide
humanitarian level for a fiscal year (taking into
account any reductions under paragraphs (2) and (3))
exceed 10,000.
(g) Requirement for Periodic Review and Reauthorization of
Worldwide Levels.--
(1) Congressional review.--The Committees on the
Judiciary of the House of Representatives and of the
Senate shall undertake during fiscal year 2004 (and
each fifth fiscal year thereafter) a thorough review of
the appropriate worldwide levels of immigration to be
provided under this section during the 5-fiscal-year
period beginning with the second subsequent fiscal
year.
(2) Congressional reauthorization.--The Congress,
after consideration of the reviews under paragraph (1)
and by amendment to this section, shall specify the
appropriate worldwide levels of immigration to be
provided under this section during the 5-fiscal-year
period beginning with the second subsequent fiscal
year.
(3) Sunset in absence of reauthorization.--The
worldwide levels specified under the previous
provisions of this section are applicable only to
fiscal years 1997 through 2005. Immigrant visa numbers
for fiscal years after fiscal year 2005 that are
subject to such levels are only authorized to the
extent provided by amendment under paragraph (2) made
to this section.
numerical limitation to any single foreign state
Sec. 202. (a) Per Country Level.--
(1) Nondiscrimination.--Except as specifically
provided in [paragraph (2)] paragraphs (2) and (5) and
in sections 101(a)(27), 201(b)(2)(A)(i), and 203, no
person shall receive any preference or priority or be
discriminated against in the issuance of an immigrant
visa because of the person's race, sex, nationality,
place of birth, or place of residence.
* * * * * * *
[(4) Special rules for spouses and children of lawful
permanent resident aliens.--
[(A) 75 percent of 2nd preference set-aside
for spouses and children not subject to per
country limitation.--
[(i) In general.--Of the visa numbers
made available under section 203(a) to
immigrants described in section
203(a)(2)(A) in any fiscal year, 75
percent of the 2-A floor (as defined in
clause (ii)) shall be issued without
regard to the numerical limitation
under paragraph (2).
[(ii) 2-A floor defined.--In this
paragraph, the term ``2-A floor''
means, for a fiscal year, 77 percent of
the total number of visas made
available under section 203(a) to
immigrants described in section
203(a)(2) in the fiscal year.
[(B) Treatment of remaining 25 percent for
countries subject to subsection (e).--
[(i) In general.--Of the visa numbers
made available under section 203(a) to
immigrants described in section
203(a)(2)(A) in any fiscal year, the
remaining 25 percent of the 2-A floor
shall be available in the case of a
state or area that is subject to
subsection (e) only to the extent that
the total number of visas issued in
accordance with subparagraph (A) to
natives of the foreign state or area is
less than the subsection (e) ceiling
(as defined in clause (ii)).
[(ii) Subsection (e) ceiling
defined.--In clause (i), the term
``subsection (e) ceiling'' means, for a
foreign state or dependent area, 77
percent of the maximum number of visas
that may be made available under
section 203(a) to immigrants who are
natives of the state or area under
section 203(a)(2) consistent with
subsection (e).
[(C) Treatment of unmarried sons and
daughters in countries subject to subsection
(e).--In the case of a foreign state or
dependent area to which subsection (e) applies,
the number of immigrant visas that may be made
available to natives of the state or area under
section 203(a)(2)(B) may not exceed--
[(i) 23 percent of the maximum number
of visas that may be made available
under section 203(a) to immigrants of
the state or area described in section
203(a)(2) consistent with subsection
(e), or
[(ii) the number (if any) by which
the maximum number of visas that may be
made available under section 203(a) to
immigrants of the state or area
described in section 203(a)(2)
consistent with subsection (e) exceeds
the number of visas issued under
section 203(a)(2)(A),
whichever is greater.
[(D) Limiting pass down for certain countries
subject to subsection (e).--In the case of a
foreign state or dependent area to which
subsection (e) applies, if the total number of
visas issued under section 203(a)(2) exceeds
the maximum number of visas that may be made
available to immigrants of the state or area
under section 203(a)(2) consistent with
subsection (e) (determined without regard to
this paragraph), in applying paragraphs (3) and
(4) of section 203(a) under subsection (e)(2)
all visas shall be deemed to have been required
for the classes specified in paragraphs (1) and
(2) of such section.]
(4) Special rules for spouses and children of lawful
permanent resident aliens.--
(A) 75 percent of 1st preference not subject
to per country limitation.--Of the visa numbers
made available under section 203(a) to
immigrants described in paragraph (1) of that
section in any fiscal year, 63,750 shall be
issued without regard to the numerical
limitation under paragraph (2).
(B) Limiting pass down for certain countries
subject to subsection (e).--In the case of a
foreign state or dependent area to which
subsection (e) applies, if the total number of
visas issued under section 203(a)(1) exceeds
the maximum number of visas that may be made
available to immigrants of the state or area
under such section consistent with subsection
(e) (determined without regard to this
paragraph), in applying paragraph (2) of
section 203(a) under subsection (e)(2) all
visas shall be deemed to have been required for
the classes specified in paragraph (1) of such
section.
(5) Per country levels for humanitarian immigrants.--
The total number of immigrant visas made available to
natives of any single foreign state or dependent area
under section 203(d) in any fiscal year may not exceed
50 percent (in the case of a single foreign state) or
15 percent (in the case of a dependent area) of the
total number of such visas made available under such
subsection in that fiscal year.
(6) Construction.--Nothing in paragraph (1) shall be
construed to limit the authority of the Secretary of
State to determine the procedures for the processing of
immigrant visa applications or the locations where such
applications will be processed.
* * * * * * *
(e) Special Rules for Countries at Ceiling.--If it is
determined that the total number of immigrant visas made
available under subsections (a) and (b) of section 203 to
natives of any single foreign state or dependent area will
exceed the numerical limitation specified in subsection (a)(2)
in any fiscal year, in determining the allotment of immigrant
visa numbers to natives under subsections (a) and (b) of
section 203, visa numbers with respect to natives of that state
or area shall be allocated (to the extent practicable and
otherwise consistent with this section and section 203) in a
manner so that--
(1) the ratio of the visa numbers made available
under section 203(a) to the visa numbers made available
under section 203(b) is equal to the ratio of the
worldwide level of immigration under section 201(c) to
such level under section 201(d) (determined without
regard to subsections (c)(4) and (d)(2) of section
201);
(2) except as provided in subsection (a)(4), the
proportion of the visa numbers made available under
each of [paragraphs (1) through (4)] paragraphs (1) and
(2) of section 203(a) is equal to the ratio of the
total number of visas made available under the
respective paragraph to the total number of visas made
available under section 203(a), and
(3) the proportion of the visa numbers made available
under each of paragraphs (1) [through (5)] through (6)
of section 203(b) is equal to the ratio of the total
number of visas made available under the respective
paragraph to the total number of visas made available
under section 203(b).
Nothing in this subsection shall be construed as limiting the
number of visas that may be issued to natives of a foreign
state or dependent area under section 203(a) or 203(b) if there
is insufficient demand for visas for such natives under section
203(b) or 203(a), respectively, or as limiting the number of
visas that may be issued under section [203(a)(2)(A)] 203(a)(1)
pursuant to subsection (a)(4)(A).
* * * * * * *
allocation of immigrant visas
Sec. 203. (a) Preference Allocation for Family-Sponsored
Immigrants.--Aliens subject to the worldwide level specified in
section 201(c) for family-sponsored immigrants shall be
allotted visas as follows:
[(1) Unmarried sons and daughters of citizens.--
Qualified immigrants who are the unmarried sons or
daughters of citizens of the United States shall be
allocated visas in a number not to exceed 23,400, plus
any visas not required for the class specified in
paragraph (4).
[(2) Spouses and unmarried sons and unmarried
daughters of permanent resident aliens.--Qualified
immigrants--
[(A) who are the spouses or children of an
alien lawfully admitted for permanent
residence, or
[(B) 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
114,200, plus the number (if any) by which such
worldwide level exceeds 226,000, plus any visas not
required for the class specified in paragraph (1);
except that not less than 77 percent of such visa
numbers shall be allocated to aliens described in
subparagraph (A).
[(3) Married sons and married daughters of
citizens.--Qualified immigrants who are the married
sons or married daughters of citizens of the United
States shall be allocated visas in a number not to
exceed 23,400, plus any visas not required for the
classes specified in paragraphs (1) and (2).
[(4) Brothers and sisters of citizens.--Qualified
immigrants who are the brothers or sisters of citizens
of the United States, if such citizens are at least 21
years of age, shall be allocated visas in a number not
to exceed 65,000, plus any visas not required for the
classes specified in paragraphs (1) through (3).]
(1) Spouses and children of lawful permanent resident
aliens.--Immigrants who are the spouses and children of
an alien lawfully admitted for permanent residence
shall be allocated visas in a number not to exceed
85,000, plus any immigrant visas not used under
paragraphs (2) and (3).
(2) Parents of united states citizens.--
(A) In general.--Immigrants who are the
parents of an individual who is at least 21
years of age and a citizen of the United States
shall be allocated visas in a number, which is
not less than 25,000 and does not exceed the
lesser of--
(i) 45,000, or
(ii) the number by which the
worldwide level exceeds 85,000.
(B) Reference to insurance requirement.--For
requirement relating to insurance for parents,
see section 212(a)(4)(D).
(3) Adult sons and daughters.--
(A) In general.--Immigrants who are the
qualifying adult sons or daughters (as defined
in subparagraph (C)) of an individual who is
(i) at least 21 years of age and (ii) either a
citizen of the United States or an alien
lawfully admitted for permanent residence shall
be allocated visas according to the levels
established in subparagraph (B).
(B) Allocation of visas to adult sons and
daughters of united states citizens and
permanent resident aliens.--
(i) In general.--Subject to clause
(ii), any remaining visas shall be
allocated under this paragraph in a
number not to exceed the lesser of--
(I) 5,000, or
(II) the number by which the
worldwide level exceeds the sum
of 85,000 and the number of
immigrant visas used under
paragraph (2).
(ii) Allocation of additional visa
numbers.--
(I) In general.--If the
demand for visa numbers under
this paragraph exceeds the
number (if any) available under
clause (i) in any fiscal year,
an additional number of visas
shall be made available under
this paragraph, but not to
exceed 5,000 additional visas
numbers in any fiscal year.
(II) Offsetting reduction in
the levels of employment-based
visas.--If an additional number
of visa numbers are made
available under subclause (I)
in a fiscal year, the number of
visas made available under
section 201(a)(2) and
paragraphs (1) through (6) of
subsection (b) in the fiscal
year shall be reduced by a
number equal to such additional
number reduced by the amount
(if any) by which 110,000
exceeds the number of immigrant
visas used under paragraphs (1)
and (2) of this subsection in
the fiscal year. The reduction
under each such paragraph of
subsection (b) shall be in the
same proportion to the total
reduction as the ratio of the
numerical limitation under each
such paragraph specified under
such subsection to the
worldwide level of employment-
based immigrants (as specified
in section 201(d)).
(C) Qualifications.--For purposes of this
paragraph, the term ``qualifying adult son or
daughter'' means an immigrant who, as of the
date of approval of the classification petition
under section 204(a)(1)--
(i) is at least 21, but not more than
25 years of age,
(ii) has never been married,
(iii) is childless, and
(iv) would qualify as a dependent of
the petitioning individual for Federal
income tax purposes, except that the
immigrant does not meet the residence
requirements.
(D) Three-year conditional requirement.--
(i) Conditional basis for status.--
Notwithstanding any other provision of
this Act, an alien provided lawful
permanent residence status on the basis
of being a qualifying adult son or
daughter shall be considered, at the
time of obtaining the status of an
alien lawfully admitted for permanent
residence, to have obtained such status
on a conditional basis subject to the
provisions of this subparagraph.
(ii) Requirements of notice and
petitioning for removal of conditional
status.--The Attorney General shall
establish, by regulation, procedures
which incorporate the requirements of
notice and petitioning for removal of
conditional status similar to the
requirements for removal of conditional
status under section 216A.
(iii) Termination of status.--In the
case of an alien with permanent
resident status on a conditional basis
under clause (i), the alien must
demonstrate that the alien met the
qualifications set forth in
subparagraph (C) as of the date of
approval of the classification petition
under section 204(a). In the absence of
such a demonstration by the alien, the
alien's status shall be terminated.
(iv) Special rule.--In applying
section 216A under this subparagraph,
any reference to the ``second''
anniversary in such section is deemed a
reference to the ``third'' anniversary.
(b) Preference Allocation for Employment-Based Immigrants.--
Aliens subject to the worldwide level specified in section
201(d) for employment-based immigrants in a fiscal year shall
be allotted visas as follows:
[(1) Priority workers.--Visas shall first be made
available in a number not to exceed 28.6 percent of
such worldwide level, plus any visas not required for
the classes specified in paragraphs (4) and (5), to
qualified immigrants who are aliens described in any of
the following subparagraphs (A) through (C):
[(A) Aliens with extraordinary ability.--An
alien is described in this subparagraph if--
[(i) the alien has extraordinary
ability in the sciences, arts,
education, business, or athletics which
has been demonstrated by sustained
national or international acclaim and
whose achievements have been recognized
in the field through extensive
documentation,
[(ii) the alien seeks to enter the
United States to continue work in the
area of extraordinary ability, and
[(iii) the alien's entry into the
United States will substantially
benefit prospectively the United
States.
[(B) Outstanding professors and
researchers.--An alien is described in this
subparagraph if--
[(i) the alien is recognized
internationally as outstanding in a
specific academic area,
[(ii) the alien has at least 3 years
of experience in teaching or research
in the academic area, and
[(iii) the alien seeks to enter the
United States--
[(I) for a tenured position
(or tenure-track position)
within a university or
institution of higher education
to teach in the academic area,
[(II) for a comparable
position with a university or
institution of higher education
to conduct research in the
area, or
[(III) for a comparable
position to conduct research in
the area with a department,
division, or institute of a
private employer, if the
department, division, or
institute employs at least 3
persons full-time in research
activities and has achieved
documented accomplishments in
an academic field.
[(C) Certain multinational executives and
managers.--An alien is described in this
subparagraph if the alien, in the 3 years
preceding the time of the alien's application
for classification and admission into the
United States under this subparagraph, has been
employed for at least 1 year by a firm or
corporation or other legal entity or an
affiliate or subsidiary thereof and the alien
seeks to enter the United States in order to
continue to render services to the same
employer or to a subsidiary or affiliate
thereof in a capacity that is managerial or
executive.
[(2) Aliens who are members of the professions
holding advanced degrees or aliens of exceptional
ability.--
[(A) In general.--Visas shall be made
available, in a number not to exceed 28.6
percent of such worldwide level, plus any visas
not required for the classes specified in
paragraph (1), to qualified immigrants who are
members of the professions holding advanced
degrees or their equivalent or who because of
their exceptional ability in the sciences,
arts, or business, will substantially benefit
prospectively the national economy, cultural or
educational interests, or welfare of the United
States, and whose services in the sciences,
arts, professions, or business are sought by an
employer in the United States.
[(B) Waiver of job offer.--The Attorney
General may, when he deems it to be in the
national interest, waive the requirement of
subparagraph (A) that an alien's services in
the sciences, arts, professions, or business be
sought by an employer in the United States.
[(C) Determination of exceptional ability.--
In determining under subparagraph (A) whether
an immigrant has exceptional ability, the
possession of a degree, diploma, certificate,
or similar award from a college, university,
school, or other institution of learning or a
license to practice or certification for a
particular profession or occupation shall not
by itself be considered sufficient evidence of
such exceptional ability.
[(3) Skilled workers, professionals, and other
workers.--
[(A) In general.--Visas shall be made
available, in a number not to exceed 28.6
percent of such worldwide level, plus any visas
not required for the classes specified in
paragraphs (1) and (2), to the following
classes of aliens who are not described in
paragraph (2):
[(i) Skilled workers.--Qualified
immigrants who are capable, at the time
of petitioning for classification under
this paragraph, of performing skilled
labor (requiring at least 2 years
training or experience), not of a
temporary or seasonal nature, for which
qualified workers are not available in
the United States.
[(ii) Professionals.--Qualified
immigrants who hold baccalaureate
degrees and who are members of the
professions.
[(iii) Other workers.--Other
qualified immigrants who are capable,
at the time of petitioning for
classification under this paragraph, of
performing unskilled labor, not of a
temporary or seasonal nature, for which
qualified workers are not available in
the United States.
[(B) Limitation on other workers.--Not more
than 10,000 of the visas made available under
this paragraph in any fiscal year may be
available for qualified immigrants described in
subparagraph (A)(iii).
[(C) Labor certification required.--An
immigrant visa may not be issued to an
immigrant under subparagraph (A) until the
consular officer is in receipt of a
determination made by the Secretary of Labor
pursuant to the provisions of section
212(a)(5)(A).
[(4) Certain special immigrants.--Visas shall be made
available, in a number not to exceed 7.1 percent of
such worldwide level, to qualified special immigrants
described in section 101(a)(27) (other than those
described in subparagraph (A) or (B) thereof), of which
not more than 5,000 may be made available in any fiscal
year to special immigrants described in subclause (II)
or (III) of section 101(a)(27)(C)(ii).
[(5) Employment creation.--
[(A) In general.--Visas shall be made
available, in a number not to exceed 7.1
percent of such worldwide level, to qualified
immigrants seeking to enter the United States
for the purpose of engaging in a new commercial
enterprise--
[(i) which the alien has established,
[(ii) in which such alien has
invested (after the date of the
enactment of the Immigration Act of
1990) or, is actively in the process of
investing, capital in an amount not
less than the amount specified in
subparagraph (C), and
[(iii) which will benefit the United
States economy and create full-time
employment for not fewer than 10 United
States citizens or aliens lawfully
admitted for permanent residence or
other immigrants lawfully authorized to
be employed in the United States (other
than the immigrant and the immigrant's
spouse, sons, or daughters).
[(B) Set-aside for targeted employment
areas.--
[(i) In general.--Not less than 3,000
of the visas made available under this
paragraph in each fiscal year shall be
reserved for qualified immigrants who
establish a new commercial enterprise
described in subparagraph (A) which
will create employment in a targeted
employment area.
[(ii) Targeted employment area
defined.--In this paragraph, the term
``targeted employment area'' means, at
the time of the investment, a rural
area or an area which has experienced
high unemployment (of at least 150
percent of the national average rate).
[(iii) Rural area defined.--In this
paragraph, the term ``rural area''
means any area other than an area
within a metropolitan statistical area
or within the outer boundary of any
city or town having a population of
20,000 or more (based on the most
recent decennial census of the United
States).
[(C) Amount of capital required.--
[(i) In general.--Except as otherwise
provided in this subparagraph, the
amount of capital required under
subparagraph (A) shall be $1,000,000.
The Attorney General, in consultation
with the Secretary of Labor and the
Secretary of State, may from time to
time prescribe regulations increasing
the dollar amount specified under the
previous sentence.
[(ii) Adjustment for targeted
employment areas.--The Attorney General
may, in the case of investment made in
a targeted employment area, specify an
amount of capital required under
subparagraph (A) that is less than (but
not less than \1/2\ of) the amount
specified in clause (i).
[(iii) Adjustment for high employment
areas.--In the case of an investment
made in a part of a metropolitan
statistical area that at the time of
the investment--
[(I) is not a targeted
employment area, and
[(II) is an area with an
unemployment rate significantly
below the national average
unemployment rate,
the Attorney General may specify an
amount of capital required under
subparagraph (A) that is greater than
(but not greater than 3 times) the
amount specified in clause (i).]
(1) Aliens with extraordinary ability.--Visas shall
first be made available in a number not to exceed
15,000 of such worldwide level to immigrants--
(A) who have extraordinary ability in the
sciences, arts, education, business, or
athletics which has been demonstrated by
sustained national or international acclaim and
whose achievements have been recognized in the
field through sufficient documentation,
(B) who seek to be admitted into the United
States to continue work in the area of
extraordinary ability, and
(C) whose admission into the United States
will substantially benefit prospectively the
United States.
(2) Aliens who are outstanding professors and
researchers or multinational executives and managers.--
(A) In general.--Visas shall be made
available, in a number not to exceed 30,000 of
such worldwide level, plus any visas not
required for the class specified in paragraph
(1), to immigrants who are aliens described in
subparagraph (B) or (C).
(B) Outstanding professors and researchers.--
An alien is described in this subparagraph if--
(i) the alien is recognized
internationally as outstanding in a
specific academic area,
(ii) the alien has at least 3 years
of experience in teaching or research
in the academic area, and
(iii) the alien seeks to enter the
United States--
(I) for a tenured position
(or tenure-track position)
within a university or
institution of higher education
to teach in the academic area,
(II) for a comparable
position with a university or
institution of higher education
to conduct research in the
area, or
(III) for a comparable
position to conduct research in
the area with a department,
division, or institute of a
private employer, if the
department, division, or
institute employs at least 3
persons full-time in research
activities and has achieved
documented accomplishments in
an academic field.
(C) Certain multinational executives
and managers.--An alien is described in
this subparagraph if the alien, in the
3 years preceding the time of the
alien's application for classification
and admission into the United States
under this subparagraph, has been
employed for at least 1 year by a firm
or corporation or other legal entity or
an affiliate or subsidiary thereof and
the alien seeks to enter the United
States in order to continue to render
services to the same employer or to a
subsidiary or affiliate thereof in a
capacity that is managerial or
executive.
(3) Aliens who are members of the professions holding
advanced degrees or aliens of exceptional ability.--
(A) In general.--Visas shall be made
available, in a number not to exceed 30,000 of
such worldwide level, plus any visas not
required for the classes specified in
paragraphs (1) and (2), to immigrants who are
aliens described in subparagraph (B).
(B) Aliens who are members of the professions
holding advanced degrees or aliens of
exceptional ability.--
(i) In general.--An alien is
described in this subparagraph if the
alien is a member of a profession
holding an advanced degree or its
equivalent or who because of
exceptional ability in the sciences,
arts, or business will substantially
benefit prospectively the national
economy, cultural or educational
interests, or welfare of the United
States, and whose services in the
sciences, arts, professions, or
business are sought by an employer in
the United States.
(ii) Determination of exceptional
ability.--In determining under clause
(i) whether an immigrant has
exceptional ability, the possession of
a degree, diploma, certificate, or
similar award from a college,
university, school, or other
institution of learning or a license to
practice or certification for a
particular profession or occupation
shall not by itself be considered
sufficient evidence of such exceptional
ability.
(iii) Labor certification required.--
An immigrant visa may not be issued to
an immigrant under this subparagraph
until the consular officer is in
receipt of a determination made by the
Secretary of Labor pursuant to the
provisions of section 212(a)(5)(A).
(iv) National interest waiver.--The
Attorney General may waive the
requirement under clause (iii) and the
requirement under clause (i) that an
alien's services be sought by an
employer in the United States only if--
(I) such a waiver is
necessary to substantially
benefit--
(aa) the national
security, national
defense, or Federal,
State, or local law
enforcement;
(bb) health care,
housing, or educational
opportunities for an
indigent or low-income
population or in an
underserved
geographical area;
(cc) economic or
employment
opportunities for a
specific industry or a
specific geographical
area;
(dd) the development
of new technologies; or
(ee) environmental
protection or the
productive use of
natural resources, and
(II) the alien will engage in
a specific undertaking to
advance one or more of the
interests under subclause (I).
(4) Skilled workers and professionals.--
(A) In general.--Visas shall be made
available, in a number not to exceed 45,000 of
such worldwide level, plus any visas not
required for the classes specified in
paragraphs (1) through (3) to immigrants who
are described in subparagraph (B) or (C).
(B) Skilled workers.--An alien described in
this subparagraph is an immigrant who is
capable, at the time a petition is filed, of
performing skilled labor (requiring at least 2
years of training or experience), not of a
temporary or seasonal nature, for which
qualified workers are not available in the
United States, and who has a total of 4 years
of training or experience (or both) with
respect to such labor.
(C) Professionals.--
(i) In general.--An alien described
in this subparagraph is an immigrant
who holds a baccalaureate degree and is
a member of the professions and,
subject to clause (ii), has at least 2
years of experience in the profession
after the receipt of the degree.
(ii) Special rule for language
teachers.--An alien who is a teacher
and has (within the previous 5 years)
at least 2 years of experience teaching
a language (other than English) full-
time at an accredited elementary or
middle school may be classified and
admitted as a professional under this
subparagraph if the alien is seeking
admission to teach such language full-
time in an accredited elementary or
middle school.
(D) Labor certification required.--An
immigrant visa may not be issued to an
immigrant under this paragraph until the
consular officer is in receipt of a
determination made by the Secretary of Labor
pursuant to the provisions of section
212(a)(5)(A).
(E) Experience requirement.--Any period of
experience acquired as a nonimmigrant under
section 101(a)(15)(E), 101(a)(15)(H)(i), or
101(a)(15)(L) may be used to fulfill a
requirement for experience under this
paragraph.
(5) Investors in job creation.--
(A) In general.--Visas shall be made
available, in a number not to exceed 10,000 of
such worldwide level less the reduction in visa
numbers under this paragraph required to be
effected under section 201(c)(5)(A) for the
fiscal year involved, to immigrants seeking to
enter the United States for the purpose of
engaging in a new commercial enterprise--
(i) which the alien has established,
(ii) in which the alien has invested
(after the date of the enactment of the
Immigration Act of 1990), or is
actively in the process of investing,
capital in an amount not less
$1,000,000, and
(iii) which will benefit the United
States economy and create full-time
employment for not fewer than 10 United
States citizens or aliens lawfully
admitted for permanent residence or
other immigrants lawfully authorized to
be employed in the United States (other
than the immigrant and the immigrant's
spouse, sons, or daughters).
(B) Pilot program.--For each of fiscal years
1997 and 1998, up to 2,000 visas otherwise made
available under this paragraph shall be made
available to immigrants who would be described
in subparagraph (A) if ``$500,000'' were
substituted for ``$1,000,000'' in subparagraph
(A)(ii) and if ``for not fewer than 5'' were
substituted for ``for not fewer than 10'' in
subparagraph (A)(iii). By not later than April
1, 1998, the Attorney General shall submit to
Congress a report on the operation of this
subparagraph and shall include in the report
information describing the immigrants admitted
under this paragraph and the enterprises they
invest in and a recommendation on whether the
pilot program under this subparagraph should be
continued or modified.
(6) Certain special immigrants.--Visas shall be made
available, in a number not to exceed 5,000 of such
worldwide level, to qualified special immigrants
described in section 101(a)(27) (other than those
described in subparagraph (A) thereof), of which not
more than 4,000 may be made available in any fiscal
year to special immigrants described in subclause (II)
or (III) of section 101(a)(27)(C)(ii).
[(6)] (7) Special rules for ``k'' special
immigrants.--
(A) Not counted against numerical limitation
in year involved.--Subject to subparagraph (B),
the number of immigrant visas made available to
special immigrants under section 101(a)(27)(K)
in a fiscal year shall not be subject to the
numerical limitations of this subsection or of
section 202(a).
(B) Counted against numerical limitations in
following year.--
(i) Reduction in employment-based
immigrant classifications.--The number
of visas made available in any fiscal
year under paragraphs (1), (2), [and
(3) shall each be reduced by \1/3\]
(3), and (4) shall each be reduced by
the same proportion, as the proportion
(of the visa numbers made available
under all such paragraphs) that were
made available under each respective
paragraph, of the number of visas made
available in the previous fiscal year
to special immigrants described in
section 101(a)(27)(K).
(ii) Reduction in per country
level.--The number of visas made
available in each fiscal year to
natives of a foreign state under
section 202(a) shall be reduced by the
number of visas made available in the
previous fiscal year to special
immigrants described in section
101(a)(27)(K) who are natives of the
foreign state.
(iii) Reduction in employment-based
immigrant classifications within per
country ceiling.--In the case of a
foreign state subject to section 202(e)
in a fiscal year (and in the previous
fiscal year), the number of visas made
available and allocated to each of
paragraphs (1) through [(3) of this
subsection in the fiscal year shall be
reduced by \1/3\] (4) in the fiscal
year reduced by the same proportion, as
the proportion (of the visa numbers
made available under all such
paragraphs to natives of the foreign
state) that were made available under
each respective paragraph to such
natives, of the number of visas made
available in the previous fiscal year
to special immigrants described in
section 101(a)(27)(K) who are natives
of the foreign state.
(8) Not counting work experience as an unauthorized
alien.--For purposes of this subsection, work
experience obtained in employment in the United States
with respect to which the alien was an unauthorized
alien (as defined in section 274A(h)(3)) shall not be
taken into account.
(c) Diversity Immigrants.--
(1) In general.--Except as provided in paragraph (2),
aliens subject to the worldwide level specified in
section 201(e) for diversity immigrants shall be
allotted visas each fiscal year as follows:
(A) Determination of preference
immigration.--The Attorney General shall
determine for the most recent previous 5-
fiscal-year period for which data are
available, the total number of aliens who are
natives of each foreign state and who (i) were
admitted or otherwise provided lawful permanent
resident status (other than under this
subsection) and (ii) were subject to the
numerical limitations of section 201(a) (other
than paragraph (3) thereof) or who were
admitted or otherwise provided lawful permanent
resident status as an immediate relative or
other alien described in section 201(b)(2).
(B) Identification of high-admission and low-
admission regions and high-admission and low-
admission states.--The Attorney General--
(i) shall identify--
(I) each region (each in this
paragraph referred to as a
``high-admission region'') for
which the total of the numbers
determined under subparagraph
(A) for states in the region is
greater than \1/6\ of the total
of all such numbers, and
(II) each other region (each
in this paragraph referred to
as a ``low-admission region'');
and
(ii) shall identify--
(I) each foreign state for
which the number determined
under subparagraph (A) is
greater than 50,000 (each such
state in this paragraph
referred to as a ``high-
admission state''),
(II) each other foreign state
(each such state in this
paragraph referred to as a
``low-admission state'')[.],
and
(III) within each region, the
10 foreign states which had the
highest number of registrants
for the diversity immigrant
program under this subsection
for the period beginning
October 1, 1994, and ending
September 30, 1996, and which
are not high-admission states.
(C) Determination of percentage of worldwide
immigration attributable to high-admission
regions.--The Attorney General shall determine
the percentage of the total of the numbers
determined under subparagraph (A) that are
numbers for foreign states in high-admission
regions.
(D) Determination of regional populations
excluding high-admission states and ratios of
populations of regions within low-admission
regions and high-admission regions.--The
Attorney General shall determine--
(i) based on available estimates for
each region, the total population of
each region not including the
population of any high-admission state;
(ii) for each low-admission region,
the ratio of the population of the
region determined under clause (i) to
the total of the populations determined
under such clause for all the low-
admission regions; and
(iii) for each high-admission region,
the ratio of the population of the
region determined under clause (i) to
the total of the populations determined
under such clause for all the high-
admission regions.
(E) Distribution of visas.--
(i) No visas for natives of high-
admission states.--The percentage of
visas made available under this
paragraph to natives of a high-
admission state is 0.
(ii) For low-admission states in low-
admission regions.--Subject to clauses
(iv) and (v), the percentage of visas
made available under this paragraph to
natives (other than natives of a high-
admission state) in a low-admission
region is the product of--
(I) the percentage determined
under subparagraph (C), and
(II) the population ratio for
that region determined under
subparagraph (D)(ii).
(iii) For low-admission states in
high-admission regions.--Subject to
clauses (iv) and (v), the percentage of
visas made available under this
paragraph to natives (other than
natives of a high-admission state) in a
high-admission region is the product
of--
(I) 100 percent minus the
percentage determined under
subparagraph (C), and
(II) the population ratio for
that region determined under
subparagraph (D)(iii).
(iv) Redistribution of unused visa
numbers.--If the Secretary of State
estimates that the number of immigrant
visas to be issued to natives in any
region for a fiscal year under this
paragraph is less than the number of
immigrant visas made available to such
natives under this paragraph for the
fiscal year, subject to clause (v), the
excess visa numbers shall be made
available to natives (other than
natives of a high-admission state) of
the other regions in proportion to the
percentages otherwise specified in
clauses (ii) and (iii).
(v) Limitation on visas for natives
of a single foreign state.--The
percentage of visas made available
under this paragraph to natives of any
single foreign state for any fiscal
year shall not exceed 7 percent.
(vi) Ten states eligible in each
region.--Only natives of the 10 states
identified for each region in
subparagraph (B)(ii)(III) are eligible
for diversity visas.
(F) Region defined.--Only for purposes of
administering the diversity program under this
subsection, [Northern Ireland shall be treated
as a separate foreign state,] each colony or
other component or dependent area of a foreign
state overseas from the foreign state shall be
treated as part of the foreign state[,] and the
areas described in each of the following
clauses shall be considered to be a separate
region:
(i) Africa.
(ii) Asia.
(iii) Europe.
(iv) North America [(other than
Mexico)].
(v) Oceania.
(vi) South America, [Mexico,] Central
America, and the Caribbean.
[(2) Requirement of education or work experience.--An
alien is not eligible for a visa under this subsection
unless the alien--
[(A) has at least a high school education or
its equivalent, or
[(B) has, within 5 years of the date of
application for a visa under this subsection,
at least 2 years of work experience in an
occupation which requires at least 2 years of
training or experience.]
(2) Requirement of job offer and education or skilled
worker.--An alien is not eligible for a visa under this
subsection unless the alien--
(A) has a job offer in the United States
which has been verified;
(B) has at least a high school education or
its equivalent; and
(C) has at least 2 years of work experience
in an occupation which requires at least 2
years of training.
(3) Maintenance of information.--The Secretary of
State shall maintain information on the age,
occupation, education level, and other relevant
characteristics of immigrants issued visas under this
subsection.
(4) Fees.--Fees for the furnishing and verification
of applications for visas under this subsection and for
the issuance of visas under this subsection may be
prescribed by the Secretary of State in such amounts as
are adequate to compensate the Department of State for
the costs of administering the diversity immigrant
program. Any such fees collected may be deposited as an
offsetting collection to the appropriate Department of
State appropriation to recover the costs of such
program and shall remain available for obligation until
expended.
(5) Ineligibility of aliens unlawfully present in the
united states.--An alien who is unlawfully present in
the United States at the time of filing of an
application, within 5 years prior to the filing of such
application, or at any time subsequent to the filing of
the application is ineligible for a visa under this
subsection.
(d) Humanitarian Immigrants.--
(1) In general.--Aliens subject to the worldwide
humanitarian level specified in section 201(e) shall be
allotted visas only if the aliens have been selected by
the Attorney General under paragraph (2) as of special
humanitarian concern to the United States.
(2) Selection of immigrants.--
(A) In general.--The Attorney General shall,
on a case-by-case basis and based on
humanitarian concerns and the public interest,
select aliens for purposes of this subsection.
(B) Restriction.--The Attorney General may
not select an alien under this paragraph if the
alien is a refugee (within the meaning of
section 101(a)(42)) unless the Attorney General
determines that compelling reasons in the
public interest with respect to that particular
alien require that the alien be admitted into
the United States as a humanitarian immigrant
under this subsection rather than as a refugee
under section 207.
(3) Annual report.--Not later than 90 days after the
end of each fiscal year, the Attorney General shall
submit to the Committees on the Judiciary of the House
of Representatives and of the Senate a report
describing the number of immigrant visas issued under
this subsection and the individuals to whom the visas
were issued.
[(d)] (e) Treatment of Family Members.--A spouse or child as
defined in subparagraph (A), (B), (C), (D), or (E) of section
101(b)(1) shall, if not otherwise entitled to an immigrant
status and the immediate issuance of a visa under subsection
(a)(2), (b), or (c), be entitled to the same status, and the
same order of consideration provided in the respective
subsection, if accompanying or following to join, the spouse or
parent.
[(e)] (f) Order of Consideration.--(1) Immigrant visas made
available under subsection (a) or (b) shall be issued to
eligible immigrants in the order in which a petition in behalf
of each such immigrant is filed with the Attorney General (or
in the case of special immigrants under section 101(a)(27)(D),
with the Secretary of State) as provided in section 204(a).
(2) Immigrant visa numbers made available under subsection
(c) (relating to diversity immigrants) shall be issued to
eligible qualified immigrants strictly in a random order
established by the Secretary of State for the fiscal year
involved.
(3) Immigrant visa numbers made available under subsection
(d) (relating to humanitarian immigrants) shall be issued to
eligible immigrants in an order specified by the Attorney
General.
[(3)] (4) Waiting lists of applicants for visas under this
section shall be maintained in accordance with regulations
prescribed by the Secretary of State.
[(f)] (g) Authorization for Issuance.-- In the case of any
alien claiming in his application for an immigrant visa to be
described in section 201(b)(2) or in subsection (a), (b), or
(c) of this section, the consular officer shall not grant such
status until he has been authorized to do so as provided by
section 204.
[(g)] (h) Lists.--For purposes of carrying out the
Secretary's responsibilities in the orderly administration of
this section, the Secretary of State may make reasonable
estimates of the anticipated numbers of visas to be issued
during any quarter of any fiscal year within each of the
categories under subsections (a), (b), and (c) and to rely upon
such estimates in authorizing the issuance of visas. The
Secretary of State shall terminate the registration of any
alien who fails to apply for an immigrant visa within one year
following notification to the alien of the availability of such
visa, but the Secretary shall reinstate the registration of any
such alien who establishes within 2 years following the date of
notification of the availability of such visa that such failure
to apply was due to circumstances beyond the alien's control.
procedure for granting immigrant status
Sec. 204. (a)(1)(A)(i) Any citizen of the United States
claiming that an alien is entitled to classification by reason
of a relationship described in [paragraph (1), (3), or (4)]
paragraph (2) or (3) of section 203(a) or [to an immediate
relative status] to status as the spouse or child of a citizen
of the United States under section 201(b)(2)(A)(i) may file a
petition with the Attorney General for such classification.
(ii) An alien spouse described in the second sentence of
section 201(b)(2)(A)(i) also may file a petition with the
Attorney General under this subparagraph for classification of
the alien (and the alien's children) under such section.
(iii) An alien who is the spouse of a citizen of the United
States, who is a person of good moral character, who is
eligible to be classified [as an immediate relative] as the
spouse of a citizen of the United States under section
201(b)(2)(A)(i), and who has resided in the United States with
the alien's spouse may file a petition with the Attorney
General under this subparagraph for classification of the alien
(and any child of the alien if such a child has not been
classified under clause (iv)) under such section if the alien
demonstrates to the Attorney General that--
(I) the alien is residing in the United States, the
marriage between the alien and the spouse was entered
into in good faith by the alien, and during the
marriage the alien or a child of the alien has been
battered by or has been the subject of extreme cruelty
perpetrated by the alien's spouse; and
(II) the alien is a person whose [deportation]
removal, in the opinion of the Attorney General, would
result in extreme hardship to the alien or a child of
the alien.
(iv) An alien who is the child of a citizen of the United
States, who is a person of good moral character, who is
eligible to be classified [as an immediate relative] as a child
of a citizen of the United States under section
201(b)(2)(A)(i), and who has resided in the United States with
the citizen parent may file a petition with the Attorney
General under this subparagraph for classification of the alien
under such section if the alien demonstrates to the Attorney
General that--
(I) the alien is residing in the United States and
during the period of residence with the citizen parent
the alien has been battered by or has been the subject
of extreme cruelty perpetrated by the alien's citizen
parent; and
(II) the alien is a person whose [deportation]
removal, in the opinion of the Attorney General, would
result in extreme hardship to the alien.
(B)(i) Any alien lawfully admitted for permanent residence
claiming that an alien is entitled to a classification by
reason of the relationship described in [section 203(a)(2)]
paragraph (1) or (3) of section 203(a)(1) may file a petition
with the Attorney General for such classification.
(ii) An alien who is the spouse of an alien lawfully admitted
for permanent residence, who is a person of good moral
character, who is eligible for classification under section
[203(a)(2)(A)] 203(a)(1), and who has resided in the United
States with the alien's legal permanent resident spouse may
file a petition with the Attorney General under this
subparagraph for classification of the alien (and any child of
the alien if such a child has not been classified under clause
(iii)) under such section if the alien demonstrates to the
Attorney General that the conditions described in subclauses
(I) and (II) of subparagraph (A)(iii) are met with respect to
the alien.
(iii) An alien who is the child of an alien lawfully admitted
for permanent residence, who is a person of good moral
character, who is eligible for classification under section
[203(a)(2)(A)] 203(a)(1), and who has resided in the United
States with the alien's permanent resident alien parent may
file a petition with the Attorney General under this
subparagraph for classification of the alien under such section
if the alien demonstrates to the Attorney General that--
(I) the alien is residing in the United States and
during the period of residence with the permanent
resident parent the alien has been battered by or has
been the subject of extreme cruelty perpetrated by the
alien's permanent resident parent; and
(II) the alien is a person whose [deportation]
removal, in the opinion of the Attorney General, would
result in extreme hardship to the alien.
(C) Any alien desiring to be classified under section
[203(b)(1)(A)] 203(b)(1), or any person on behalf of such an
alien, may file a petition with the Attorney General for such
classification.
(D) Any employer desiring and intending to employ within the
United States an alien entitled to classification under
[section 203(b)(1)(B), 203(b)(1)(C), 203(b)(2), or 203(b)(3)]
section 203(b)(2), 203(b)(3), or 203(b)(4) may file a petition
with the Attorney General for such classification.
[(F)] (E) Any alien desiring to be classified under section
[203(b)(5)] 203(b)(4) may file a petition with the Attorney
General for such classification.
[(E)] (F)(i) Any alien (other than a special immigrant under
section 101(a)(27)(D)) desiring to be classified under section
[203(b)(4)] 203(b)(6), or any person on behalf of such an
alien, may file a petition with the Attorney General for such
classification.
(ii) Aliens claiming status as a special immigrant under
section 101(a)(27)(D) may file a petition only with the
Secretary of State and only after notification by the Secretary
that such status has been recommended and approved pursuant to
such section.
(G)(i) Any alien desiring to be provided an immigrant visa
under section 203(c) may file a petition at the place and time
determined by the Secretary of State by regulation. Only one
such petition may be filed by an alien with respect to any
petitioning period established. If more than one petition is
submitted all such petitions submitted for such period by the
alien shall be voided.
(ii)(I) The Secretary of State shall designate a period for
the filing of petitions with respect to visas which may be
issued under section 203(c) for the fiscal year beginning after
the end of the period.
(II) Aliens who qualify, through random selection, for a visa
under section 203(c) shall remain eligible to receive such visa
only through the end of the specific fiscal year for which they
were selected.
(III) The Secretary of State shall prescribe such regulations
as may be necessary to carry out this clause.
(iii) A petition under this subparagraph shall be in such
form as the Secretary of State may by regulation prescribe and
shall contain such information and be supported by such
documentary evidence as the Secretary of State may require.
(H) In acting on petitions filed under clause (iii) or (iv)
of subparagraph (A) or clause (ii) or (iii) of subparagraph
(B), the Attorney General shall consider any credible evidence
relevant to the petition. The determination of what evidence is
credible and the weight to be given that evidence shall be
within the sole discretion of the Attorney General.
(I) Any alien desiring to be provided an immigrant visa under
section 203(d) may file a petition with the Attorney General
for such classification, but only if the Attorney General has
identified the alien as possibly qualifying for such a visa.
(2)(A) The Attorney General may not approve a spousal second
preference petition for the classification of the spouse of an
alien if the alien, by virtue of a prior marriage, has been
accorded the status of an alien lawfully admitted for permanent
residence as the spouse of a citizen of the United States or as
the spouse of an alien lawfully admitted for permanent
residence, unless--
(i) a period of 5 years has elapsed after the date
the alien acquired the status of an alien lawfully
admitted for permanent residence, or
(ii) the alien establishes to the satisfaction of the
Attorney General by clear and convincing evidence that
the prior marriage (on the basis of which the alien
obtained the status of an alien lawfully admitted for
permanent residence) was not entered into for the
purpose of evading any provision of the immigration
laws.
In this subparagraph, the term ``spousal second preference
petition'' refers to a petition, seeking preference status
under section 203(a)(2), for an alien as a spouse of an alien
lawfully admitted for permanent residence.
(B) Subparagraph (A) shall not apply to a petition filed for
the classification of the spouse of an alien if the prior
marriage of the alien was terminated by the death of his or her
spouse.
(b)(1) After an investigation of the facts in each case, and
after consultation with the Secretary of Labor with respect to
petitions to accord a status under section 203(b)(2) or
203(b)(3), the Attorney General shall, if he determines that
the facts stated in the petition are true and that the alien in
behalf of whom the petition is made is [an immediate relative
specified in section 201(b)] a spouse or child of a citizen of
the United States under section 201(b) or is eligible for
preference under subsection (a) or (b) of section 203, approve
the petition and forward one copy thereof to the Department of
State. The Secretary of State shall then authorize the consular
officer concerned to grant the preference status.
(2)(A) The Attorney General may provide that a petition
approved with respect to an alien (and the priority date
established with respect to the petition) shall expire after a
period (specified by the Attorney General and of not less than
2 years) following the date of approval of the petition, unless
the petitioner files with the Attorney General a form described
in subparagraph (B).
(B) The Attorney General shall specify the form to be used
under this paragraph. Such form shall be designed--
(i) to reconfirm the continued intention of the
petitioner to seek admission of the alien based on the
classification involved, and
(ii) as may be provided by the Attorney General, to
update the contents of the original classification
petition.
(C) The Attorney General may apply subparagraph (A) to one or
more classes of classification petitions and for different
periods of time for different classes of such petitions, as
specified by the Attorney General.
(c) Notwithstanding the provisions of subsection (b) no
petition shall be approved if (1) the alien has previously been
accorded, or has sought to be accorded, [an immediate relative
or preference] a preferential status as the spouse of a citizen
of the United States or the spouse of an alien lawfully
admitted for permanent residence, by reason of a marriage
determined by the Attorney General to have been entered into
for the purpose of evading the immigration laws or (2) the
Attorney General has determined that the alien has attempted or
conspired to enter into a marriage for the purpose of evading
the immigration laws.
(d) Notwithstanding the provisions of subsections (a) and (b)
no petition may be approved on behalf of a child defined in
section 101(b)(1)(F) unless a valid home-study has been
favorably recommended by an agency of the State of the child's
proposed residence, or by an agency authorized by that State to
conduct such a study, or, in the case of a child adopted
abroad, by an appropriate public or private adoption agency
which is licensed in the United States.
(e) Nothing in this section shall be construed to entitle an
immigrant, in behalf of whom a petition under this section is
approved, to enter the United States as an immigrant under
subsection (a), (b), or (c) of section 203 or as [an immediate
relative] a spouse or child of a citizen of the United States
under section 201(b) if upon [his] the alien's arrival at a
port of [entry] admission in the United States [he] the alien
is found not to be entitled to such classification.
(f)(1) Any alien claiming to be an alien described in
paragraph (2)(A) of this subsection (or any person on behalf of
such an alien) may file a petition with the Attorney General
for classification under section 201(b)[, 203(a)(1), or
203(a)(3)] or 203(a)(2), as appropriate. After an investigation
of the facts of each case the Attorney General shall, if the
conditions described in paragraph (2) are met, approve the
petition and forward one copy to the Secretary of State.
* * * * * * *
(g) Notwithstanding subsection (a), except as provided in
section 245(e)(3), a petition may not be approved to grant an
alien [immediate relative status] status as a spouse or child
of a citizen of the United States or other or preference status
by reason of a marriage which was entered into during the
period described in section 245(e)(2), until the alien has
resided outside the United States for a 2-year period beginning
after the date of the marriage.
* * * * * * *
(i) For purposes of applying section 101(b)(1) in the case of
issuance of an immigrant visa to, or admission or adjustment of
status of, an alien under section 201(b)(2)(A), section
203(a)(1), or 203(e) as a child of a citizen of the United
States or a permanent resident alien, the age of the alien
shall be determined as of the date of the filing of the
classification petition under section 204(a)(1) as such a child
of a citizen of the United States or a permanent resident
alien.
revocation of approval of petitions
Sec. 205. The Attorney General may, at any time, for what he
deems to be good and sufficient cause, revoke the approval of
any petition approved by him under section 204. Such revocation
shall be effective as of the date of approval of any such
petition. In no case, however, shall such revocation have
effect unless there is mailed to the petitioner's last known
address a notice of the revocation and unless notice of the
revocation is communicated through the Secretary of State to
the beneficiary of the petition before such beneficiary
commences his journey to the United States. If notice of
revocation is not so given, and the beneficiary applies for
admission to the United States, his admissibility shall be
determined in the manner provided for by sections 235 and [236]
240.
unused immigrant visas
Sec. 206. If an immigrant having an immigrant visa is
[excluded from admission to the United States and deported]
denied admission to the United States and removed, or does not
apply for admission before the expiration of the validity of
his visa, or if an alien having an immigrant visa issued to him
as a preference immigrant is found not to be a preference
immigrant, an immigrant visa or a preference immigrant visa, as
the case may be, may be issued in lieu thereof to another
qualified alien.
annual admission of refugees and admission of emergency situation
refugees
Sec. 207. (a)[(1) Except as provided in subsection (b), the
number of refugees who may be admitted under this section in
fiscal year 1980, 1981, or 1982, may not exceed fifty thousand
unless the President determines, before the beginning of the
fiscal year and after appropriate consultation (as defined in
subsection (e)), that admission of a specific number of
refugees in excess of such number is justified by humanitarian
concerns or is otherwise in the national interest.]
(1) Except as provided in paragraph (2) and subsection (b),
the number of refugees who may be admitted under this section
in any fiscal year shall be such number as the President
determines, before the beginning of the fiscal year and after
appropriate consultation, is justified by humanitarian concerns
or is otherwise in the national interest.
[(2) Except as provided in subsection (b), the number of
refugees who may be admitted under this section in any fiscal
year after fiscal year 1982 shall be such number as the
President determines, before the beginning of the fiscal year
and after appropriate consultation, is justified by
humanitarian concerns or is otherwise in the national
interest.]
(2)(A) Except as provided in subparagraph (B), the number
determined under paragraph (1) for a fiscal year may not
exceed--
(i) 75,000 in the case of fiscal year 1997, or
(ii) 50,000 in the case of any succeeding fiscal
year.
(B) The number determined under paragraph (1) for a fiscal
year may exceed the limit specified under subparagraph (A) if
Congress enacts a law providing for a higher number.
(3) Admissions under this subsection shall be allocated among
refugees of special humanitarian concern to the United States
in accordance with a determination made by the President after
appropriate consultation.
[(4) In the determination made under this subsection for each
fiscal year (beginning with fiscal year 1992), the President
shall enumerate, with the respective number of refugees so
determined, the number of aliens who were granted asylum in the
previous year.]
(4) For any fiscal year, not more than a total of 1,000
refugees may be admitted under this subsection or granted
asylum under section 208 pursuant to a determination under the
last sentence of section 101(a)(42) (relating to persecution
for resistance to coercive population control methods).
(b) If the President determines, after appropriate
consultation, that (1) an [unforeseen] emergency refugee
situation exists, (2) the admission of certain refugees in
response to the emergency refugee situation is justified by
grave humanitarian concerns or is otherwise in the national
interest, and (3) the admission to the United States of these
refugees cannot be accomplished under subsection (a), the
President may fix a number of refugees to be admitted to the
United States during the succeeding period (not to exceed
twelve months) in response to the emergency refugee situation
and such admissions shall be allocated among refugees of
special humanitarian concern to the United States in accordance
with a determination made by the President after the
appropriate consultation provided under this subsection.
* * * * * * *
(d)(1) [Before the start of each fiscal year] Before June 1
of the preceding fiscal year the President shall report to the
Committee on the Judiciary of the House of Representatives and
of the Senate regarding the foreseeable number of refugees who
will be in need of resettlement during the fiscal year and the
anticipated allocation of refugee admissions during the fiscal
year. The President shall provide for periodic discussions
between designated representatives of the President and members
of such committees regarding changes in the worldwide refugee
situation, the progress of refugee admissions, and the possible
need for adjustments in the allocation of admissions among
refugees.
(2) As soon as possible after representatives of the
President initiate appropriate consultation with respect to the
number of refugee admissions under subsection (a) or with
respect to the admission of refugees in response to an
emergency refugee situation under subsection (b), the
Committees on the Judiciary of the House of Representatives and
of the Senate shall cause to have printed in the Congressional
Record the substance of such consultation.
(3)(A) After the President initiates appropriate consultation
prior to making a determination under subsection (a), a hearing
to review the proposed determination shall be held unless
public disclosure of the details of the proposal would
jeopardize the lives or safety of individuals.
(B) After the President initiates appropriate consultation
prior to making a determination, under subsection (b), that the
number of refugee admissions should be increased because of an
[unforeseen] emergency refugee situation, to the extent that
time and the nature of the emergency refugee situation permit,
a hearing to review the proposal to increase refugee admissions
shall be held unless public disclosure of the details of the
proposal would jeopardize the lives or safety of individuals.
(e) For purposes of this section, the term ``appropriate
consultation'' means, with respect to the admission of refugees
and allocation of refugee admissions, discussions in person by
designated Cabinet-level representatives of the President with
members of the Committees on the Judiciary of the Senate and of
the House of Representatives to review the refugee situation or
emergency refugee situation, to project the extent of possible
participation of the United States therein, to discuss the
reasons for believing that the proposed admission of refugees
is justified by humanitarian concerns or grave humanitarian
concerns or is otherwise in the national interest, and to
provide such members with the following information:
(1) A description of the nature of the refugee
situation.
(2) A description of the number and allocation of the
refugees to be admitted and an analysis of conditions
within the countries from which they came.
(3) A description of the proposed plans for their
movement and resettlement and the estimated cost of
their movement and resettlement.
(4) An analysis of the anticipated social, economic,
and demographic impact of their admission to the United
States.
(5) A description of the extent to which other
countries will admit and assist in the resettlement of
such refugees.
(6) An analysis of the impact of the participation of
the United States in the resettlement of such refugees
on the foreign policy interests of the United States.
(7) Such additional information as may be appropriate
or requested by such members.
To the extent possible, information described in this
subsection shall be provided at least two weeks in advance of
discussions in person by designated representatives of the
President with such members. Such discussions shall occur
before July 1 of the fiscal year preceding the fiscal year of
admissions, except that discussions relating to an emergency
refugee situation shall occur not more than 30 days after the
President proposes admissions in response to the emergency.
[asylum procedure
[Sec. 208. (a) The Attorney General shall establish a
procedure for an alien physically present in the United States
or at a land border or port of entry, irrespective of such
alien's status, to apply for asylum, and the alien may be
granted asylum in the discretion of the Attorney General if the
Attorney General determines that such alien is a refugee within
the meaning of section 101(a)(42)(A).
[(b) Asylum granted under subsection (a) may be terminated if
the Attorney General, pursuant to such regulations as the
Attorney General may prescribe, determines that the alien is no
longer a refugee within the meaning of section 101(a)(42)(A)
owing to a change in circumstances in the alien's country of
nationality or, in the case of an alien having no nationality,
in the country in which the alien last habitually resided.
[(c) A spouse or child (as defined in section 101(b)(1) (A),
(B), (C), (D), or (E)) of an alien who is granted asylum under
subsection (a) may, if not otherwise eligible for asylum under
such subsection, be granted the same status as the alien if
accompanying, or following to join, such alien.
[(d) An alien who has been convicted of an aggravated felony,
notwithstanding subsection (a), may not apply for or be granted
asylum.
[(e) An applicant for asylum is not entitled to employment
authorization except as may be provided by regulation in the
discretion of the Attorney General.]
asylum
Sec. 208. (a) Authority to Apply for Asylum.--
(1) In general.--Any alien who is physically present
in the United States or who arrives in the United
States (whether or not at a designated port of
arrival), irrespective of such alien's status, may
apply for asylum in accordance with this section.
(2) Exceptions.--
(A) Safe third country.--Paragraph (1) shall
not apply to an alien if the Attorney General
determines that the alien may be removed,
including pursuant to a bilateral or
multilateral agreement, to a country (other
than the country of the alien's nationality or,
in the case of an alien having no nationality,
the country of the alien's last habitual
residence) in which the alien's life or freedom
would not be threatened on account of race,
religion, nationality, membership in a
particular social group, or political opinion,
and where the alien would have access to a full
and fair procedure for determining a claim to
asylum or equivalent temporary protection,
unless the Attorney General finds that it is in
the public interest for the alien to receive
asylum in the United States.
(B) Time limit.--Paragraph (1) shall not
apply to an alien unless the alien demonstrates
by clear and convincing evidence that the
application has been filed within 30 days after
the alien's arrival in the United States.
(C) Previous asylum applications.--Paragraph
(1) shall not apply to an alien if the alien
has previously applied for asylum and had such
application denied.
(D) Changed conditions.--An application for
asylum of an alien may be considered,
notwithstanding subparagraphs (B) and (C), if
the alien demonstrates to the satisfaction of
the Attorney General the existence of
fundamentally changed circumstances which
affect the applicant's eligibility for asylum.
(3) Limitation on judicial review.--No court shall
have jurisdiction to review a determination of the
Attorney General under paragraph (2).
(b) Conditions for Granting Asylum.--
(1) In general.--The Attorney General may grant
asylum to an alien who has applied for asylum in
accordance with the requirements and procedures
established by the Attorney General under this section
if the Attorney General determines that such alien is a
refugee within the meaning of section 101(a)(42)(A).
(2) Exceptions.--
(A) In general.--Paragraph (1) shall not
apply to an alien if the Attorney General
determines that--
(i) the 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;
(ii) the alien, having been convicted
by a final judgment of a particularly
serious crime, constitutes a danger to
the community of the United States;
(iii) there are serious reasons for
believing that the alien has committed
a serious nonpolitical crime outside
the United States prior to the arrival
of the alien in the United States;
(iv) there are reasonable grounds for
regarding the alien as a danger to the
security of the United States;
(v) the alien is inadmissible under
subclause (I), (II), (III), or (IV) of
section 212(a)(3)(B)(i) or removable
under section 237(a)(4)(B) (relating to
terrorist activity), unless, in the
case only of an alien inadmissible
under subclause (IV) of section
212(a)(3)(B)(i), the Attorney General
determines, in the Attorney General's
discretion, that there are not
reasonable grounds for regarding the
alien as a danger to the security of
the United States; or
(vi) the alien was firmly resettled
in another country prior to arriving in
the United States.
(B) Special rules.--
(i) Conviction of aggravated
felony.--For purposes of clause (ii) of
subparagraph (A), an alien who has been
convicted of an aggravated felony shall
be considered to have been convicted of
a particularly serious crime.
(ii) Offenses.--The Attorney General
may designate by regulation offenses
that will be considered to be a crime
described in clause (ii) or (iii) of
subparagraph (A).
(C) Additional limitations.--The Attorney
General may by regulation establish additional
limitations and conditions under which an alien
shall be ineligible for asylum under paragraph
(1).
(D) No judicial review.--There shall be no
judicial review of a determination of the
Attorney General under subparagraph (A)(v).
(3) Treatment of spouse and children.--A spouse or
child (as defined in section 101(b)(1)(A), (B), (C),
(D), or (E)) of an alien who is granted asylum under
this subsection may, if not otherwise eligible for
asylum under this section, be granted the same status
as the alien if accompanying, or following to join,
such alien.
(c) Asylum Status.--
(1) In general.--In the case of an alien granted
asylum under subsection (b), the Attorney General--
(A) shall not remove or return the alien to
the alien's country of nationality or, in the
case of a person having no nationality, the
country of the alien's last habitual residence;
(B) shall authorize the alien to engage in
employment in the United States and provide the
alien with appropriate endorsement of that
authorization; and
(C) may allow the alien to travel abroad with
the prior consent of the Attorney General.
(2) Termination of asylum.--Asylum granted under
subsection (b) does not convey a right to remain
permanently in the United States, and may be terminated
if the Attorney General determines that--
(A) the alien no longer meets the conditions
described in subsection (b)(1) owing to a
fundamental change in circumstances;
(B) the alien meets a condition described in
subsection (b)(2);
(C) the alien may be removed, including
pursuant to a bilateral or multilateral
agreement, to a country (other than the country
of the alien's nationality or, in the case of
an alien having no nationality, the country of
the alien's last habitual residence) in which
the alien cannot establish that it is more
likely than not that the alien's life or
freedom would be threatened on account of race,
religion, nationality, membership in a
particular social group, or political opinion,
and where the alien is eligible to receive
asylum or equivalent temporary protection;
(D) the alien has voluntarily availed himself
or herself of the protection of the alien's
country of nationality or, in the case of an
alien having no nationality, the alien's
country of last habitual residence, by
returning to such country with permanent
resident status or the reasonable possibility
of obtaining such status with the same rights
and obligations pertaining to other permanent
residents of that country; or
(E) the alien has acquired a new nationality
and enjoys the protection of the country of his
new nationality.
(3) Removal when asylum is terminated.--An alien
described in paragraph (2) is subject to any applicable
grounds of inadmissibility or deportability under
section 212(a) and 237(a), and the alien's removal or
return shall be directed by the Attorney General in
accordance with sections 240 and 241.
(4) Limitation on judicial review.--No court shall
have jurisdiction to review a determination of the
Attorney General under paragraph (2).
(d) Asylum Procedure.--
(1) Applications.--The Attorney General shall
establish a procedure for the consideration of asylum
applications filed under subsection (a). An application
for asylum shall not be considered unless the alien
submits fingerprints and a photograph in a manner to be
determined by regulation by the Attorney General.
(2) Employment.--An applicant for asylum is not
entitled to employment authorization, but such
authorization may be provided under regulation by the
Attorney General. An applicant who is not otherwise
eligible for employment authorization shall not be
granted such authorization prior to 180 days after the
date of filing of the application for asylum.
(3) Fees.--The Attorney General may impose fees for
the consideration of an application for asylum, for
employment authorization under this section, and for
adjustment of status under section 209(b). The Attorney
General may provide for the assessment and payment of
such fees over a period of time or by installments.
Nothing in this paragraph shall be construed to require
the Attorney General to charge fees for adjudication
services provided to asylum applicants, or to limit the
authority of the Attorney General to set adjudication
and naturalization fees in accordance with section
286(m).
(4) Notice of privilege of counsel and consequences
of frivolous application.--At the time of filing an
application for asylum, the Attorney General shall--
(A) advise the alien of the privilege of
being represented by counsel and of the
consequences, under paragraph (6), of knowingly
filing a frivolous application for asylum; and
(B) provide the alien a list of persons
(updated not less often than quarterly) who
have indicated their availability to represent
aliens in asylum proceedings on a pro bono
basis.
(5) Consideration of asylum applications.--
(A) Procedures.--The procedure established
under paragraph (1) shall provide that--
(i) asylum cannot be granted until
the identity of the applicant has been
checked against all appropriate records
or databases maintained by the Attorney
General and by the Secretary of State,
including the Automated Visa Lookout
System, to determine any grounds on
which the alien may be inadmissible to
or deportable from the United States,
or ineligible to apply for or be
granted asylum;
(ii) in the absence of exceptional
circumstances, the initial interview or
hearing on the asylum application shall
commence not later than 45 days after
the date an application is filed;
(iii) in the absence of exceptional
circumstances, final administrative
adjudication of the asylum application,
not including administrative appeal,
shall be completed within 180 days
after the date an application is filed;
(iv) any administrative appeal shall
be filed within 30 days of a decision
granting or denying asylum, or within
30 days of the completion of removal
proceedings before an immigration judge
under section 240, whichever is later;
and
(v) in the case of an applicant for
asylum who fails without prior
authorization or in the absence of
exceptional circumstances to appear for
an interview or hearing, including a
hearing under section 240, the
application may be dismissed or the
applicant may be otherwise sanctioned
for such failure.
(B) Additional regulatory conditions.--The
Attorney General may provide by regulation for
any other conditions or limitations on the
consideration of an application for asylum not
inconsistent with this Act.
(6) Frivolous applications.--
(A) In general.--If the Attorney General
determines that an alien has knowingly made a
frivolous application for asylum and the alien
has received the notice under paragraph (4)(A),
the alien shall be permanently ineligible for
any benefits under this Act, effective as of
the date of a final determination on such
application.
(B) Material misrepresentations.--An
application shall be considered to be frivolous
if the Attorney General determines that the
application contains a willful
misrepresentation or concealment of a material
fact.
(7) No private right of action.--Nothing in this
subsection 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.
adjustment of status of refugees
Sec. 209. (a)(1) Any alien who has been admitted to the
United States under section 207--
(A) whose admission has not been terminated by the
Attorney General pursuant to such regulations as the
Attorney General may prescribe,
(B) who has been physically present in the United
States for at least one year, and
(C) who has not acquired permanent resident status,
shall, at the end of such year period, return or be returned to
the custody of the Service for inspection and examination for
admission to the United States as an immigrant in accordance
with the provisions of sections 235, [236] 240, and [237] 241.
(2) Any alien who is found upon inspection and examination by
an immigration officer pursuant to paragraph (1) or after a
hearing before [a special inquiry officer] an immigration judge
to be admissible (except as otherwise provided under subsection
(c)) as an immigrant under this Act at the time of the alien's
inspection and examination shall, notwithstanding any numerical
limitation specified in this Act, be regarded as lawfully
admitted to the United States for permanent residence as of the
date of such alien's arrival into the United States.
(b) [Not more than 10,000 of the refugee admissions
authorized under section 207(a) in any fiscal year may be made
available by the Attorney General, in the Attorney General's
discretion and under such regulations as the Attorney General
may prescribe, to adjust] The Attorney General, in the Attorney
General's discretion and under such regulations as the Attorney
General may prescribe, and in a number not to exceed 10,000
aliens in any fiscal year, may adjust to the status of an alien
lawfully admitted for permanent residence the status of any
alien granted asylum who--
(1) applies for such adjustment,
(2) has been physically present in the United States
for at least one year after being granted asylum,
(3) continues to be a refugee within the meaning of
section 101(a)(42)(A) or a spouse or child of such a
refugee,
(4) is not firmly resettled in any foreign country,
and
(5) is admissible (except as otherwise provided under
subsection (c)) as an immigrant under this Act at the
time of examination for adjustment of such alien.
Upon approval of an application under this subsection, the
Attorney General shall establish a record of the alien's
admission for lawful permanent residence as of the date one
year before the date of the approval of the application.
(c) The provisions of paragraphs (4), (5), and (7)(A) of
section 212(a) shall not be applicable to any alien seeking
adjustment of status under this section, and 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.
special agricultural workers
Sec. 210. (a) * * *
(b) Applications for Adjustment of Status.--
(1) * * *
* * * * * * *
(5) Limitation on access to information.--Files and
records prepared for purposes of this section by
designated entities operating under this section are
confidential and the Attorney General and the Service
shall not have access to such files or records relating
to an alien without the consent of the alien, except as
permitted under paragraph (6)(B).
(6) Confidentiality of information.--[Neither] (A)
Except as provided in subparagraph (B), neither the
Attorney General, nor any other official or employee of
the Department of Justice, or bureau or agency thereof,
may--
[(A)] (i) use the information furnished
pursuant to an application filed under this
section for any purpose other than to make a
determination on the application including a
determination under subparagraph (a)(3)(B), or
for enforcement of paragraph (7)[.],
[(B)] (ii) make any publication whereby the
information furnished by any particular
individual can be identified, or
[(C)] (iii) permit anyone other than the
sworn officers and employees of the Department
or bureau or agency or, with respect to
applications filed with a designated entity,
that designated entity, to examine individual
applications.
(B) The Attorney General may authorize an application
to a Federal court of competent jurisdiction for, and a
judge of such court may grant, an order authorizing
disclosure of information contained in the application
of the alien to be used--
(i) for identification of the alien when
there is reason to believe that the alien has
been killed or severely incapacitated, or
(ii) for criminal law enforcement purposes
against the alien whose application is to be
disclosed if the alleged criminal activity
occurred after the special agricultural worker
application was filed and such activity
involves terrorist activity or poses either an
immediate risk to life or to national security,
or would be prosecutable as an aggravated
felony, but without regard to the length of
sentence that could be imposed on the
applicant.
[Anyone]
(C) Anyone who uses, publishes, or permits
information to be examined in violation of this
paragraph shall be fined in accordance with title 18,
United States Code, or imprisoned not more than five
years, or both.
(D) Nothing in this paragraph shall preclude the
release for immigration enforcement purposes of the
following information contained in files or records of
the Service pertaining to the application:
(i) The immigration status of the applicant
on any given date after the date of filing the
application (including whether the applicant
was authorized to work).
(ii) The date of the applicant's adjustment
(if any) to the status of an alien lawfully
admitted for permanent residence.
(iii) Information concerning whether the
applicant has been convicted of a crime
occurring after the date of filing the
application.
(iv) The date or disposition of the
application.
* * * * * * *
(e) Administrative and Judicial Review.--
(1) * * *
* * * * * * *
(3) Judicial review.--
(A) Limitation to review of exclusion or
deportation.--There shall be judicial review of
such a denial only in the judicial review of an
order of exclusion or deportation under section
106 (as in effect before October 1, 1996).
* * * * * * *
general classes of aliens ineligible to receive visas and [excluded
from] ineligible for admission; waivers of inadmissibility
Sec. 212. (a) [Classes of Excludable Aliens.--Except as
otherwise provided in this Act, the following describes classes
of excludable aliens who are ineligible to receive visas and
who shall be excluded from admission into the United States:]
Classes of Aliens Ineligible for Visas or Admission.--Except as
otherwise provided in this Act, aliens who are inadmissible
under the following paragraphs are ineligible to receive visas
and ineligible to be admitted to the United States:
(1) Health-related grounds.--
(A) In general.--Any alien--
(i) who is determined (in accordance
with regulations prescribed by the
Secretary of Health and Human Services)
to have a communicable disease of
public health significance, which shall
include infection with the etiologic
agent for acquired immune deficiency
syndrome,
(ii) who seeks admission as an
immigrant, or who seeks adjustment of
status to the status of an alien
lawfully admitted for permanent
residence, and who has failed to
present documentation of having
received vaccination against vaccine-
preventable diseases, which shall
include at least the following
diseases: mumps, measles, rubella,
polio, tetanus and diphtheria toxoids,
pertussis, influenza type B and
hepatitis B, and any other vaccinations
against vaccine-preventable diseases
recommended by the Advisory Committee
for Immunization Practices,
[(ii)] (iii) who is determined (in
accordance with regulations prescribed
by the Secretary of Health and Human
Services in consultation with the
Attorney General)--
(I) to have a physical or
mental disorder and behavior
associated with the disorder
that may pose, or has posed, a
threat to the property, safety,
or welfare of the alien or
others, or
(II) to have had a physical
or mental disorder and a
history of behavior associated
with the disorder, which
behavior has posed a threat to
the property, safety, or
welfare of the alien or others
and which behavior is likely to
recur or to lead to other
harmful behavior, or
[(iii)] (iv) who is determined (in
accordance with regulations prescribed
by the Secretary of Health and Human
Services) to be a drug abuser or
addict,
[is excludable] is inadmissible.
(B) Waiver authorized.--For provision
authorizing waiver of certain clauses of
subparagraph (A), see subsection (g).
(2) Criminal and related grounds.--
(A) Conviction of certain crimes.--
(i) In general.--Except as provided
in clause (ii), any alien convicted of,
or who admits having committed, or who
admits committing acts which constitute
the essential elements of--
(I) a crime involving moral
turpitude (other than a purely
political offense) or an
attempt or conspiracy to commit
such a crime, or
(II) a violation of (or a
conspiracy or attempt to
violate) any law or regulation
of a State, the United States,
or a foreign country relating
to a controlled substance (as
defined in section 102 of the
Controlled Substances Act (21
U.S.C. 802)),
[is excludable] is inadmissible.
(ii) Exception.--Clause (i)(I) shall
not apply to an alien who committed
only one crime if--
(I) the crime was committed
when the alien was under 18
years of age, and the crime was
committed (and the alien
released from any confinement
to a prison or correctional
institution imposed for the
crime) more than 5 years before
the date of application for a
visa or other documentation and
the date of application for
admission to the United States,
or
(II) the maximum penalty
possible for the crime of which
the alien was convicted (or
which the alien admits having
committed or of which the acts
that the alien admits having
committed constituted the
essential elements) did not
exceed imprisonment for one
year and, if the alien was
convicted of such crime, the
alien was not sentenced to a
term of imprisonment in excess
of 6 months (regardless of the
extent to which the sentence
was ultimately executed).
(B) Multiple criminal convictions.--Any alien
convicted of 2 or more offenses (other than
purely political offenses), regardless of
whether the conviction was in a single trial or
whether the offenses arose from a single scheme
of misconduct and regardless of whether the
offenses involved moral turpitude, for which
the aggregate sentences to confinement actually
imposed were 5 years or more [is excludable] is
inadmissible.
(C) Controlled substance traffickers.--Any
alien who the consular or immigration officer
knows or has reason to believe is or has been
an illicit trafficker in any such controlled
substance or is or has been a knowing assister,
abettor, conspirator, or colluder with others
in the illicit trafficking in any such
controlled substance, [is excludable] is
inadmissible.
(D) Prostitution and commercialized vice.--
Any alien who--
(i) is coming to the United States
solely, principally, or incidentally to
engage in prostitution, or has engaged
in prostitution within 10 years of the
date of application for a visa, [entry]
admission, or adjustment of status,
(ii) directly or indirectly procures
or attempts to procure, or (within 10
years of the date of application for a
visa, [entry] admission, or adjustment
of status) procured or attempted to
procure or to import, prostitutes or
persons for the purpose of
prostitution, or receives or (within
such 10-year period) received, in whole
or in part, the proceeds of
prostitution, or
(iii) is coming to the United States
to engage in any other unlawful
commercialized vice, whether or not
related to prostitution,
[is excludable] is inadmissible.
(E) Certain aliens involved in serious
criminal activity who have asserted immunity
from prosecution.--Any alien--
(i) who has committed in the United
States at any time a serious criminal
offense (as defined in section 101(h)),
(ii) for whom immunity from criminal
jurisdiction was exercised with respect
to that offense,
(iii) who as a consequence of the
offense and exercise of immunity has
departed from the United States, and
(iv) who has not subsequently
submitted fully to the jurisdiction of
the court in the United States having
jurisdiction with respect to that
offense,
[is excludable] is inadmissible.
(F) Waiver authorized.--For provision
authorizing waiver of certain subparagraphs of
this paragraph, see subsection (h).
(3) Security and related grounds.--
(A) In general.--Any alien who a consular
officer or the Attorney General knows, or has
reasonable ground to believe, seeks to enter
the United States to engage solely,
principally, or incidentally in--
(i) any activity (I) to violate any
law of the United States relating to
espionage or sabotage or (II) to
violate or evade any law prohibiting
the export from the United States of
goods, technology, or sensitive
information,
(ii) any other unlawful activity, or
(iii) any activity a purpose of which
is the opposition to, or the control or
overthrow of, the Government of the
United States by force, violence, or
other unlawful means,
[is excludable] is inadmissible.
(B) Terrorist activities.--
(i) In general.--Any alien who--
(I) has engaged in a
terrorist activity, [or]
(II) a consular officer or
the Attorney General knows, or
has reasonable ground to
believe, engaged in or is
likely to engage after entry in
any terrorist activity (as
defined in clause (iii)),
(III) is a representative of
a terrorist organization, or
(IV) is a member of a
terrorist organization which
the alien knows or should have
known is a terrorist
organization,
[is excludable] is inadmissible. An
alien who is an officer, official,
representative, or spokesman of the
Palestine Liberation Organization is
considered, for purposes of this Act,
to be engaged in a terrorist activity.
* * * * * * *
(iv) Terrorist organization
defined.--
(I) Designation.--For
purposes of this Act, the term
``terrorist organization''
means a foreign organization
designated in the Federal
Register as a terrorist
organization by the Secretary
of State, in consultation with
the Attorney General, based
upon a finding that the
organization engages in, or has
engaged in, terrorist activity
that threatens the national
security of the United States.
(II) Process.--At least 3
days before designating an
organization as a terrorist
organization through
publication in the Federal
Register, the Secretary of
State, in consultation with the
Attorney General, shall notify
the Committees on the Judiciary
of the House of Representatives
and the Senate of the intent to
make such designation and the
findings and basis for
designation. The Secretary of
State, in consultation with the
Attorney General, shall create
an administrative record and
may use classified information
in making such a designation.
Such information is not subject
to disclosure so long as it
remains classified, except that
it may be disclosed to a court
ex parte and in camera under
subclause (III) for purposes of
judicial review of such a
designation. The Secretary of
State, in consultation with the
Attorney General, shall provide
notice and an opportunity for
public comment prior to the
creation of the administrative
record under this subclause.
(III) Judicial review.--Any
organization designated as a
terrorist organization under
the preceding provisions of
this clause may, not later than
30 days after the date of the
designation, seek judicial
review thereof in the United
States Court of Appeals for the
District of Columbia Circuit.
Such review shall be based
solely upon the administrative
record, except that the
Government may submit, for ex
parte and in camera review,
classified information
considered in making the
designation. The court shall
hold unlawful and set aside the
designation if the court finds
the designation to be
arbitrary, capricious, an abuse
of discretion, or otherwise not
in accordance with law, lacking
substantial support in the
administrative record taken as
a whole or in classified
information submitted to the
court under the previous
sentence, contrary to
constitutional right, power,
privilege, or immunity, or not
in accord with the procedures
required by law.
(IV) Congressional removal
authority.--The Congress
reserves the authority to
remove, by law, the designation
of an organization as a
terrorist organization for
purposes of this Act.
(V) Sunset.--Subject to
subclause (IV), the designation
under this clause of an
organization as a terrorist
organization shall be effective
for a period of 2 years from
the date of the initial
publication of the terrorist
organization designation by the
Secretary of State. At the end
of such period (but no sooner
than 60 days prior to the
termination of the 2-year-
designation period), the
Secretary of State, in
consultation with the Attorney
General, may redesignate the
organization in conformity with
the requirements of this clause
for designation of the
organization.
(VI) Removal authority.--The
Secretary of State, in
consultation with the Attorney
General, may remove the
terrorist organization
designation from any
organization previously
designated as such an
organization, at any time, so
long as the Secretary publishes
notice of the removal in the
Federal Register. The Secretary
is not required to report to
Congress prior to so removing
such designation.
(v) Representative defined.--
(I) In general.--In this
subparagraph, the term
``representative'' includes an
officer, official, or spokesman
of the organization and any
person who directs, counsels,
commands or induces the
organization or its members to
engage in terrorist activity.
(II) Judicial review.--The
determination under this
subparagraph that an alien is a
representative of a terrorist
organization shall be subject
to judicial review under
section 706 of title 5, United
States Code.
(C) Foreign policy.--
(i) In general.--An alien whose entry
or proposed activities in the United
States the Secretary of State has
reasonable ground to believe would have
potentially serious adverse foreign
policy consequences for the United
States [is excludable] is inadmissible.
(ii) Exception for officials.--An
alien who is an official of a foreign
government or a purported government,
or who is a candidate for election to a
foreign government office during the
period immediately preceding the
election for that office, shall not be
excludable or subject to restrictions
or conditions on entry into the United
States under clause (i) solely because
of the alien's past, current, or
expected beliefs, statements, or
associations, if such beliefs,
statements, or associations would be
lawful within the United States.
(iii) Exception for other aliens.--An
alien, not described in clause (ii),
shall not be excludable or subject to
restrictions or conditions on entry
into the United States under clause (i)
because of the alien's past, current,
or expected beliefs, statements, or
associations, if such beliefs,
statements, or associations would be
lawful within the United States, unless
the Secretary of State personally
determines that the alien's admission
would compromise a compelling United
States foreign policy interest.
(iv) Notification of
determinations.--If a determination is
made under clause (iii) with respect to
an alien, the Secretary of State must
notify on a timely basis the chairmen
of the Committees on the Judiciary and
Foreign Affairs of the House of
Representatives and of the Committees
on the Judiciary and Foreign Relations
of the Senate of the identity of the
alien and the reasons for the
determination.
(D) Immigrant membership in totalitarian
party.--
(i) In general.--Any immigrant who is
or has been a member of or affiliated
with the Communist or any other
totalitarian party (or subdivision or
affiliate thereof), domestic or
foreign, [is excludable] is
inadmissible.
(ii) Exception for involuntary
membership.--Clause (i) shall not apply
to an alien because of membership or
affiliation if the alien establishes to
the satisfaction of the consular
officer when applying for a visa (or to
the satisfaction of the Attorney
General when applying for admission)
that the membership or affiliation is
or was involuntary, or is or was solely
when under 16 years of age, by
operation of law, or for purposes of
obtaining employment, food rations, or
other essentials of living and whether
necessary for such purposes.
(iii) Exception for past
membership.--Clause (i) shall not apply
to an alien because of membership or
affiliation if the alien establishes to
the satisfaction of the consular
officer when applying for a visa (or to
the satisfaction of the Attorney
General when applying for admission)
that--
(I) the membership or
affiliation terminated at
least--
(a) 2 years before
the date of such
application, or
(b) 5 years before
the date of such
application, in the
case of an alien whose
membership or
affiliation was with
the party controlling
the government of a
foreign state that is a
totalitarian
dictatorship as of such
date, and
(II) the alien is not a
threat to the security of the
United States.
(iv) Exception for close family
members.--The Attorney General may, in
the Attorney General's discretion,
waive the application of clause (i) in
the case of an immigrant who is the
parent, spouse, son, daughter, brother,
or sister of a citizen of the United
States or a spouse, son, or daughter of
an alien lawfully admitted for
permanent residence for humanitarian
purposes, to assure family unity, or
when it is otherwise in the public
interest if the immigrant is not a
threat to the security of the United
States.
(E) Participants in nazi persecutions or
genocide.--
(i) Participation in nazi
persecutions.--Any alien who, during
the period beginning on March 23, 1933,
and ending on May 8, 1945, under the
direction of, or in association with--
(I) the Nazi government of
Germany,
(II) any government in any
area occupied by the military
forces of the Nazi government
of Germany,
(III) any government
established with the assistance
or cooperation of the Nazi
government of Germany, or
(IV) any government which was
an ally of the Nazi government
of Germany,
ordered, incited, assisted, or
otherwise participated in the
persecution of any person because of
race, religion, national origin, or
political opinion [is excludable] is
inadmissible.
(ii) Participation in genocide.--Any
alien who has engaged in conduct that
is defined as genocide for purposes of
the International Convention on the
Prevention and Punishment of Genocide
[is excludable] is inadmissible.
[(4) Public charge.--Any alien who, in the opinion of
the consular officer at the time of application for a
visa, or in the opinion of the Attorney General at the
time of application for admission or adjustment of
status, is likely at any time to become a public charge
is excludable.]
(4) Public charge.--
(A) Family-sponsored immigrants.--Any alien
who seeks admission or adjustment of status
under a visa number issued under section
203(a), who cannot demonstrate to the consular
officer at the time of application for a visa,
or to the Attorney General at the time of
application for admission or adjustment of
status, that the alien's age, health, family
status, assets, resources, financial status,
education, skills, or a combination thereof, or
an affidavit of support described in section
213A, or both, make it unlikely that the alien
will become a public charge (as determined
under section 241(a)(5)(B)) is inadmissible.
(B) Nonimmigrants.--Any alien who seeks
admission under a visa number issued under
section 214, who cannot demonstrate to the
consular officer at the time of application for
the visa that the alien's age, health, family
status, assets, resources, financial status,
education, skills or a combination thereof, or
an affidavit of support described in section
213A, or both, make it unlikely that the alien
will become a public charge (as determined
under section 241(a)(5)(B)) is inadmissible.
(C) Employment-based immigrants.--
(i) In general.--Any alien who seeks
admission or adjustment of status under
a visa number issued under paragraph
(2) or (3) of section 203(b) who cannot
demonstrate to the consular officer at
the time of application for a visa, or
to the Attorney General at the time of
application for admission or adjustment
of status, that the immigrant has a
valid offer of employment is
inadmissible.
(ii) Certain employment-based
immigrants.--Any alien who seeks
admission or adjustment of status under
a visa number issued under section
203(b) by virtue of a classification
petition filed by a relative of the
alien (or by an entity in which such
relative has a significant ownership
interest) is inadmissible unless such
relative has executed an affidavit of
support described in section 213A with
respect to such alien.
(D) Insurance requirements for parents.--
(i) In general.--Any alien who seeks
admission as a parent under section
203(a)(2) is inadmissible unless the
alien demonstrates at the time of
issuance of the visa (and at the time
of admission) to the satisfaction of
the consular officer and the Attorney
General that the alien--
(I) will have coverage under
an adequate health insurance
policy (at least comparable to
coverage provided under the
medicare program under title
XVIII of the Social Security
Act), and
(II) will have coverage with
respect to long-term health
needs (at least comparable to
such coverage provided under
the medicaid program under
title XIX of such Act for the
State in which either the alien
intends to reside or in which
the petitioner (on behalf of
the alien under section
204(a)(1)) resides,
throughout the period the individual is
residing in the United States.
(ii) Factors to be taken into
account.--In making a determination
under clause (i), the Attorney General
shall take into account the age of the
parent and the likelihood of the parent
securing health insurance coverage
through employment.
(E) Waiver authorized for humanitarian
immigrants.--The Attorney General, in the
discretion of the Attorney General, may waive
the ground of inadmissibility under
subparagraph (A) in the case of an alien
seeking admission as a humanitarian immigrant
under section 203(d).
(5) Labor certification and qualifications for
certain immigrants.--
(A) Labor certification.--
(i) In general.--Any alien who seeks
to enter the United States for the
purpose of performing skilled or
unskilled labor [is excludable] is
inadmissible, unless the Secretary of
Labor has determined and certified to
the Secretary of State and the Attorney
General that--
(I) there are not sufficient
workers who are able, willing,
qualified (or equally qualified
in the case of an alien
described in clause (ii)) and
available at the time of
application for a visa and
admission to the United States
and at the place where the
alien is to perform such
skilled or unskilled labor, and
(II) the employment of such
alien will not adversely affect
the wages and working
conditions of workers in the
United States similarly
employed.
(ii) Certain aliens subject to
special rule.--For purposes of clause
(i)(I), an alien described in this
clause is an alien who--
(I) is a member of the
teaching profession, or
(II) has exceptional ability
in the sciences or the arts.
(B) Unqualified physicians.--An alien who is
a graduate of a medical school not accredited
by a body or bodies approved for the purpose by
the Secretary of Education (regardless of
whether such school of medicine is in the
United States) and who is coming to the United
States principally to perform services as a
member of the medical profession [is
excludable] is inadmissible, unless the alien
(i) has passed parts I and II of the National
Board of Medical Examiners Examination (or an
equivalent examination as determined by the
Secretary of Health and Human Services) and
(ii) is competent in oral and written English.
For purposes of the previous sentence, an alien
who is a graduate of a medical school shall be
considered to have passed parts I and II of the
National Board of Medical Examiners if the
alien was fully and permanently licensed to
practice medicine in a State on January 9,
1978, and was practicing medicine in a State on
that date.
(C) Application of grounds.--The grounds for
[exclusion] inadmissibility of aliens under
subparagraphs (A) and (B) shall apply to
immigrants seeking admission or adjustment of
status under paragraph [(2) or (3)] (3) or (4)
of section 203(b), and shall not apply to
immigrants seeking admissions as humanitarian
immigrants under section 203(d).
(6) Illegal entrants and immigration violators.--
[(A) Aliens previously deported.--Any alien
who has been excluded from admission and
deported and who again seeks admission within
one year of the date of such deportation is
excludable, unless prior to the alien's
reembarkation at a place outside the United
States or attempt to be admitted from foreign
contiguous territory the Attorney General has
consented to the alien's reapplying for
admission.
[(B) Certain aliens previously removed.--Any
alien who--
[(i) has been arrested and deported,
[(ii) has fallen into distress and
has been removed pursuant to this or
any prior Act,
[(iii) has been removed as an alien
enemy, or
[(iv) has been removed at Government
expense in lieu of deportation pursuant
to section 242(b),
[and (a) who seeks admission within 5 years of
the date of such deportation or removal, or (b)
who seeks admission within 20 years in the case
of an alien convicted of an aggravated felony,
is excludable, unless before the date of the
alien's embarkation or reembarkation at a place
outside the United States or attempt to be
admitted from foreign contiguous territory the
Attorney General has consented to the alien's
applying or reapplying for admission.]
(A) Aliens previously removed.--
(i) Arriving aliens.--Any alien who
has been ordered removed under section
235(b)(1) or at the end of proceedings
under section 240 initiated upon the
alien's arrival in the United States
and who again seeks admission within 5
years of the date of such removal is
inadmissible.
(ii) Other aliens.--Any alien not
described in clause (i) who has been
ordered removed under section 240 or
any other provision of law and who
again seeks admission within 10 years
of the date of such removal (or at any
time in the case of an alien convicted
of an aggravated felony) is
inadmissible.
(iii) Exception.--Clauses (i) and
(ii) shall not apply to an alien
seeking admission within a period if,
prior to the alien's reembarkation at a
place outside the United States or
attempt to be admitted from foreign
contiguous territory, the Attorney
General has consented to the alien's
reapplying for admission.
(B) Aliens present unlawfully for more than 1
year.--
(i) In general.--Any alien who was
unlawfully present in the United States
for an aggregate period totaling 1 year
is inadmissible unless the alien has
remained outside the United States for
a period of 10 years.
(ii) Exceptions.--
(I) Minors.--No period of
time in which an alien is under
18 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
208 shall be taken into account
in determining the period of
unlawful presence in the United
States under clause (i).
(III) Aliens with work
authorization.--No period of
time in which an alien is
provided authorization to
engage in employment in the
United States (including such
an authorization under section
244A(a)(1)(B)), or in which the
alien is the spouse of such an
alien, shall be taken into
account in determining the
period of unlawful presence in
the United States under clause
(i).
(IV) Family unity.--No period
of time in which the alien is a
beneficiary of family unity
protection pursuant to section
301 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).
(V) Battered women and
children.--Clause (i) shall not
apply to an alien described in
paragraph (9)(B).
(iii) Extension.--The Attorney
General may extend the period of 1 year
under clause (i) to a period of 15
months in the case of an alien who
applies to the Attorney General (before
the alien has been present unlawfully
in the United States for a period
totaling 1 year) and establishes to the
satisfaction of the Attorney General
that--
(I) the alien is not
inadmissible under clause (i)
at the time of the application,
and
(II) the failure to extend
such period would constitute an
extreme hardship for the alien.
(iv) Waiver.--In the case of an alien
who is the spouse, parent, or child of
a United States citizen or the spouse
or child of a permanent resident alien,
the Attorney General may waive clause
(i) for humanitarian purposes, to
assure family unity, or when it is
otherwise in the public interest.
(v) National interest waiver.--The
Attorney General may waive clause (i)
if the Attorney General determines that
such a waiver is necessary to
substantially benefit--
(I) the national security,
national defense, or Federal,
State, or local law
enforcement;
(II) health care, housing, or
educational opportunities for
an indigent or low-income
population or in an underserved
geographical area;
(III) economic or employment
opportunities for a specific
industry or specific
geographical area;
(IV) the development of new
technologies; or
(V) environmental protection
or the productive use of
natural resources; and
the alien will engage in a specific
undertaking to advance one or more of
the interests identified in subclauses
(I) through (V).
(C) Misrepresentation.--
(i) In general.--Any alien who, by
fraud or willfully misrepresenting a
material fact, seeks to procure (or has
sought to procure or has procured) a
visa, other documentation, or [entry]
admission into the United States or
other benefit provided under this Act
[is excludable] is inadmissible.
(ii) Waiver authorized.--For
provision authorizing waiver of clause
(i), see subsection (i).
(D) Stowaways.--Any alien who is a stowaway
[is excludable] is inadmissible.
(E) Smugglers.--
(i) In general.--Any alien who at any
time knowingly has encouraged, induced,
assisted, abetted, or aided any other
alien to enter or to try to enter the
United States in violation of law [is
excludable] is inadmissible.
(ii) Special rule in the case of
family reunification.--Clause (i) shall
not apply in the case of alien who is
an eligible immigrant (as defined in
section 301(b)(1) of the Immigration
Act of 1990), was physically present in
the United States on May 5, 1988, and
is seeking admission as [an immediate
relative] a spouse, child, or parent of
a citizen of the United States or under
section [203(a)(2)] 203(a)(1)
(including under section 112 of the
Immigration Act of 1990) or benefits
under section 301(a) of the Immigration
Act of 1990 if the alien, before May 5,
1988, has encouraged, induced,
assisted, abetted, or aided only the
alien's spouse, parent, son, or
daughter (and no other individual) to
enter the United States in violation of
law.
(iii) Waiver authorized.--For
provision authorizing waiver of clause
(i), see subsection (d)(11).
[(F) Subject of civil penalty.--An alien who
is the subject of a final order for violation
of section 274C is excludable.]
(F) Subject of civil penalty.--
(i) In general.--An alien who is the
subject of a final order for violation
of section 274C is inadmissible.
(ii) Waiver authorized.--For
provision authorizing waiver of clause
(i), see subsection (d)(12).
(7) Documentation requirements.--
(A) Immigrants.--
(i) In general.--Except as otherwise
specifically provided in this Act, any
immigrant at the time of application
for admission--
(I) who is not in possession
of a valid unexpired immigrant
visa, reentry permit, border
crossing identification card,
or other valid entry document
required by this Act, and a
valid unexpired passport, or
other suitable travel document,
or document of identity and
nationality if such document is
required under the regulations
issued by the Attorney General
under section 211(a), or
(II) whose visa has been
issued without compliance with
the provisions of section 203,
[is excludable] is inadmissible.
(ii) Waiver authorized for
humanitarian immigrants.--The Attorney
General, in the discretion of the
Attorney General, may waive the ground
of inadmissibility under clause (i) in
the case of an alien seeking admission
as a humanitarian immigrant under
section 203(d).
[(ii)] (iii) Waiver authorized.--For
provision authorizing waiver of clause
(i), see subsection (k).
(B) Nonimmigrants.--
(i) In general.--Any nonimmigrant
who--
(I) is not in possession of a
passport valid for a minimum of
six months from the date of the
expiration of the initial
period of the alien's admission
or contemplated initial period
of stay authorizing the alien
to return to the country from
which the alien came or to
proceed to and enter some other
country during such period, or
(II) is not in possession of
a valid nonimmigrant visa or
border crossing identification
card at the time of application
for admission,
[is excludable] is inadmissible.
(ii) General waiver authorized.--For
provision authorizing waiver of clause
(i), see subsection (d)(4).
(iii) Guam visa waiver.--For
provision authorizing waiver of clause
(i) in the case of visitors to Guam,
see subsection (l).
(iv) Visa waiver pilot program.--For
authority to waive the requirement of
clause (i) under a pilot program, see
section 217.
(8) Ineligible for citizenship.--
(A) In general.--Any immigrant who is
permanently ineligible to citizenship [is
excludable] is inadmissible.
(B) Draft evaders.--Any person who has
departed from or who has remained outside the
United States to avoid or evade training or
service in the armed forces in time of war or a
period declared by the President to be a
national emergency [is excludable] is
inadmissible, except that this subparagraph
shall not apply to an alien who at the time of
such departure was a nonimmigrant and who is
seeking to reenter the United States as a
nonimmigrant.
(9) Present without admission or parole.--
(A) In general.--An alien present in the
United States without being admitted or
paroled, or who arrives in the United States at
any time or place other than as designated by
the Attorney General, is inadmissible.
(B) Exception for certain battered women and
children.--Subparagraph (A) shall not apply to
an alien who can demonstrate that--
(i) the alien qualifies for immigrant
status under subparagraphs (A)(iii),
(A)(iv), (B)(ii), or (B)(iii) of
section 204(a)(1),
(ii)(I) the alien has been battered
or subject to extreme cruelty by a
spouse or parent, or by a member of the
spouse's or parent's family residing in
the same household as the alien and the
spouse or parent consented or
acquiesced to such battery or cruelty,
or (II) the alien's child has been
battered or subject to extreme cruelty
by a spouse or parent of the alien
(without the active participation of
the alien in the battery or extreme
cruelty) or by a member of the spouse's
or parent's family residing in the same
household as the alien when the spouse
or parent consented to or acquiesced in
such battery or cruelty and the alien
did not actively participate in such
battery or cruelty, and
(iii) there was a substantial
connection between the battery or
cruelty described in subclause (I) or
(II) and the alien's unlawful entry
into the United States.
[(9)] (10) Miscellaneous.--
(A) Practicing polygamists.--Any immigrant
who is coming to the United States to practice
polygamy [is excludable] is inadmissible.
[(B) Guardian required to accompany excluded
alien.--Any alien accompanying another alien
ordered to be excluded and deported and
certified to be helpless from sickness or
mental or physical disability or infancy
pursuant to section 237(e), whose protection or
guardianship is required by the alien ordered
excluded and deported, is excludable.]
(B) Guardian required to accompany helpless
alien.--Any alien--
(i) who is accompanying another alien
who is inadmissible and who is
certified to be helpless from sickness,
mental or physical disability, or
infancy pursuant to section 232(c), and
(ii) whose protection or guardianship
is determined to be required by the
alien described in clause (i),
is inadmissible.
(C) International child abduction.--
(i) In general.--Except as provided
in clause (ii), any alien who, after
entry of an order by a court in the
United States granting custody to a
person of a United States citizen child
who detains or retains the child, or
withholds custody of the child, outside
the United States from the person
granted custody by that order, [is
excludable] is inadmissible until the
child is surrendered to the person
granted custody by that order.
(ii) Exception.--Clause (i) shall not
apply so long as the child is located
in a foreign state that is a party to
the Hague Convention on the Civil
Aspects of International Child
Abduction.
(D) Former citizens who renounced citizenship
to avoid taxation.--Any alien who is a former
citizen of the United States who officially
renounced United States citizenship and who is
determined by the Attorney General to have
renounced United States citizenship for the
purpose of avoiding taxation by the United
States is excludable.
(b) Notices of Denials.--[If] (1) Subject to paragraph (2),
if an alien's application for a visa, for admission to the
United States, or for adjustment of status is denied by an
immigration or consular officer because the officer determines
the alien to be [excludable] inadmissible under subsection (a),
the officer shall provide the alien with a timely written
notice that--
[(1)] (A) states the determination, and
[(2)] (B) lists the specific provision or provisions
of law under which the alien is [excludable or
ineligible for entry] inadmissible or adjustment of
status.
(2) With respect to applications for visas, the Secretary of
State may waive the application of paragraph (1) in the case of
a particular alien or any class or classes of aliens
inadmissible under subsection (a)(2) or (a)(3).
[(c) Aliens lawfully admitted for permanent residence who
temporarily proceeded abroad voluntarily and not under an order
of deportation, and who are returning to a lawful
unrelinquished domicile of seven consecutive years, may be
admitted in the discretion of the Attorney General without
regard to the provisions of subsection (a) (other than
paragraphs (3) and (9)(C)). Nothing contained in this
subsection shall limit the authority of the Attorney General to
exercise the discretion vested in him under section 211(b). The
first sentence of this subsection shall not apply to an alien
who has been convicted of one or more aggravated felonies and
has served for such felony or felonies a term of imprisonment
of at least 5 years.]
(d)(1) The Attorney General shall determine whether a
ground for [exclusion] inadmissibility exists with respect to a
nonimmigrant described in section 101(a)(15)(S). The Attorney
General, in the Attorney General's discretion, may waive the
application of subsection (a)(2) (other than paragraph (3)(E))
in the case of a nonimmigrant described in section
101(a)(15)(S), if the Attorney General considers it to be in
the national interest to do so. Nothing in this section shall
be regarded as prohibiting the Immigration and Naturalization
Service from instituting [deportation] removal proceedings
against an alien admitted as a nonimmigrant under section
101(a)(15)(S) for conduct committed after the alien's admission
into the United States, or for conduct or a condition that was
not disclosed to the Attorney General prior to the alien's
admission as a nonimmigrant under section 101(a)(15)(S).
(3) Except as provided in this subsection, an alien (A) who
is applying for a nonimmigrant visa and is known or believed by
the consular officer to be ineligible for such visa under
subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii),
(3)(A)(iii), (3)(C), and (3)(E) of such subsection), may, after
approval by the Attorney General of a recommendation by the
Secretary of State or by the consular officer that the alien be
admitted temporarily despite his inadmissibility, be granted
such a visa and may be admitted into the United States
temporarily as a nonimmigrant in the discretion of the Attorney
General, or (B) who is inadmissible under subsection (a) (other
than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C),
and (3)(E) of such subsection), but who is in possession of
appropriate documents or is granted a waiver thereof and is
seeking admission, may be admitted into the United States
temporarily as a nonimmigrant in the discretion of the Attorney
General. The Attorney General shall prescribe conditions,
including exaction of such bonds as may be necessary, to
control and regulate the admission and return of [excludable]
inadmissible aliens applying for temporary admission under this
paragraph.
(4) Either or both of the requirements of paragraph
(7)(B)(i) of subsection (a) may be waived by the Attorney
General and the Secretary of State acting jointly (A) on the
basis of unforeseen emergency in individual cases, or (B) on
the basis of reciprocity with respect to nationals of foreign
contiguous territory or of adjacent islands [and residents],
residents thereof having a common nationality with such
[nationals,] nationals, and aliens who are granted permanent
residence by the government of the foreign contiguous territory
and who are residing in that territory or (C) in the case of
aliens proceeding in immediate and continuous transit through
the United States under contracts authorized in section 238(c).
[(5)(A) The Attorney General may, except as provided in
subparagraph (B) or in section 214(f), in his discretion parole
into the United States temporarily under such conditions as he
may prescribe for emergent reasons or for reasons deemed
strictly in the public interest any alien applying for
admission to the United States, but such parole of such alien
shall not be regarded as an admission of the alien and when the
purposes of such parole shall, in the opinion of the Attorney
General, have been served the alien shall forthwith return or
be returned to the custody from which he was paroled and
thereafter his case shall continue to be dealt with in the same
manner as that of any other applicant for admission to the
United States.
[(B) The Attorney General may not parole into the United
States an alien who is a refugee unless the Attorney General
determines that compelling reasons in the public interest with
respect to that particular alien require that the alien be
paroled into the United States rather than be admitted as a
refugee under section 207.]
(5)(A) Subject to the provisions of this paragraph and
section 214(f)(2), the Attorney General, in the sole discretion
of the Attorney General, may on a case-by-case basis parole an
alien into the United States temporarily, under such conditions
as the Attorney General may prescribe, only--
(i) for an urgent humanitarian reason (as described
under subparagraph (B)); or
(ii) for a reason deemed strictly in the public
interest (as described under subparagraph (C)).
(B) The Attorney General may parole an alien based on an
urgent humanitarian reason described in this subparagraph only
if--
(i) the alien has a medical emergency and the alien
cannot obtain necessary treatment in the foreign state
in which the alien is residing or the medical emergency
is life-threatening and there is insufficient time for
the alien to be admitted through the normal visa
process;
(ii) the alien is needed in the United States in
order to donate an organ or other tissue for transplant
into a close family member; or
(iii) the alien has a close family member in the
United States whose death is imminent and the alien
could not arrive in the United States in time to see
such family member alive if the alien were to be
admitted through the normal visa process.
(C) The Attorney General may parole an alien based on a
reason deemed strictly in the public interest described in this
subparagraph only if--
(i) the alien has assisted the United States
Government in a matter, such as a criminal
investigation, espionage, or other similar law
enforcement activity, and either the alien's presence
in the United States is required by the Government or
the alien's life would be threatened if the alien were
not permitted to come to the United States; or
(ii) the alien is to be prosecuted in the United
States for a crime.
(D) The Attorney General may not use the parole authority
under this paragraph to permit to come to the United States
aliens who have applied for and have been found to be
ineligible for refugee status or any alien to whom the
provisions of this paragraph do not apply.
(E) Parole of an alien under this paragraph shall not be
considered an admission of the alien into the United States.
When the purposes of the parole of an alien have been served,
as determined by the Attorney General, the alien shall
immediately return or be returned to the custody from which the
alien was paroled and the alien shall be considered for
admission to the United States on the same basis as other
similarly situated applicants for admission.
(F) Not later than 90 days after the end of each fiscal year,
the Attorney General shall submit a report to the Committees on
the Judiciary of the House of Representatives and the Senate
describing the number and categories of aliens paroled into the
United States under this paragraph. Each such report shall
contain information and data concerning the number and
categories of aliens paroled, the duration of parole, and the
current status of aliens paroled during the preceding fiscal
year.
(7) The provisions of subsection (a) (other than paragraph
(7)) shall be applicable to any alien who shall leave Guam,
Puerto Rico, or the Virgin Islands of the United States, and
who seeks to enter the continental United States or any other
place under the jurisdiction of the United States. Any alien
described in this paragraph, who is [excluded from] denied
admission to the United States, shall be immediately [deported]
removed in the manner provided by section [237(a)] 241(c) of
this Act.
* * * * * * *
(11) The Attorney General may, in his discretion for
humanitarian purposes, to assure family unity, or when it is
otherwise in the public interest, waive application of clause
(i) of subsection (a)(6)(E) in the case of any alien lawfully
admitted for permanent residence who temporarily proceeded
abroad voluntarily and not under an order of [deportation]
removal, and who is otherwise admissible to the United States
as a returning resident under section 211(b) and in the case of
an alien seeking admission or adjustment of status as [an
immediate relative] a spouse or child of a citizen of the
United States or [immigrant under section 203(a) (other than
paragraph (4) thereof)] an immigrant under section 203(a) if
the alien has encouraged, induced, assisted, abetted, or aided
only the alien's spouse, parent, son, or daughter (and no other
individual) to enter the United States in violation of law.
(12) The Attorney General may, in the discretion of the
Attorney General for humanitarian purposes, to assure family
unity, or when it is otherwise in the public interest, waive
application of clause (i) of subsection (a)(6)(F)--
(A) in the case of an alien lawfully admitted for
permanent residence who temporarily proceeded abroad
voluntarily and not under an order of deportation and
who is otherwise admissible to the United States as a
returning resident under section 211(b), and
(B) in the case of an alien seeking admission or
adjustment of status under section 201(b)(2)(A) or
under section 203(a),
if the violation under section 274C was committed solely to
assist, aid, or support the alien's spouse, parent, son, or
daughter (and not another individual).
* * * * * * *
(f) Whenever the President finds that the entry of any
aliens or of any class of aliens into the United States would
be detrimental to the interests of the United States, he may by
proclamation, and for such period as he shall deem necessary,
suspend the entry of all aliens or any class of aliens as
immigrants or nonimmigrants, or impose on the entry of aliens
any restrictions he may deem to be appropriate. Whenever the
Attorney General finds that a commercial airline has failed to
comply with regulations of the Attorney General relating to
requirements of airlines for the detection of fraudulent
documents used by passengers traveling to the United States
(including the training of personnel in such detection), the
Attorney General may suspend the entry of some or all aliens
transported to the United States by such airline.
(g) The Attorney General may waive the application of--
(1) subsection (a)(1)(A)(i) in the case of any alien
who--
(A) is the spouse or the unmarried son or
daughter, or the minor unmarried lawfully
adopted child, of a United States citizen, or
of an alien lawfully admitted for permanent
residence, or of an alien who has been issued
an immigrant visa, or
(B) has a son or daughter who is a United
States citizen, or an alien lawfully admitted
for permanent residence, or an alien who has
been issued an immigrant visa[, or
[(2) subsection (a)(1)(A)(ii) in the case of any
alien,
in accordance with such terms, conditions, and controls, if
any, including the giving of bond, as the Attorney General, in
his discretion after consultation with the Secretary of Health
and Human Services, may by regulation prescribe.];
in accordance with such terms, conditions, and
controls, if any, including the giving of bond, as the
Attorney General, in the discretion of the Attorney
General after consultation with the Secretary of Health
and Human Services, may by regulation prescribe;
(2) subsection (a)(1)(A)(ii) in the case of any
alien--
(A) who receives vaccination against the
vaccine-preventable disease or diseases for
which the alien has failed to present
documentation of previous vaccination, or
(B) for whom a civil surgeon, medical
officer, or panel physician (as those terms are
defined by 42 C.F.R. 34.2) certifies, according
to such regulations as the Secretary of Health
and Human Services may prescribe, that such
vaccination would not be medically appropriate;
or
(3) subsection (a)(1)(A)(iii) in the case of any
alien, in accordance with such terms, conditions, and
controls, if any, including the giving of bond, as the
Attorney General, in the discretion of the Attorney
General after consultation with the Secretary of Health
and Human Services, may by regulation prescribe.
(h) The Attorney General may, in his discretion, waive the
application of subparagraphs (A)(i)(I), (B), (D), and (E) of
subsection (a)(2) and subparagraph (A)(i)(II) of such
subsection insofar as it relates to a single offense of simple
possession of 30 grams or less of marijuana if--
(1)(A) in the case of any immigrant it is established
to the satisfaction of the Attorney General that--
(i) the alien is [excludable] inadmissible
only under subparagraph (D)(i) or (D)(ii) of
such subsection or the activities for which the
alien is [excludable] inadmissible occurred
more than 15 years before the date of the
alien's application for a visa, [entry]
admission, or adjustment of status,
(ii) the admission to the United States of
such alien would not be contrary to the
national welfare, safety, or security of the
United States, and
(iii) the alien has been rehabilitated; or
(B) in the case of an immigrant who is the spouse,
parent, son, or daughter of a citizen of the United
States or an alien lawfully admitted for permanent
residence if it is established to the satisfaction of
the Attorney General that the alien's [exclusion]
denial of admission would result in extreme hardship to
the United States citizen or lawfully resident spouse,
parent, son, or daughter of such alien; and
* * * * * * *
[(i) The Attorney General may, in his discretion, waive
application of clause (i) of subsection (a)(6)(C)--
[(1) in the case of an immigrant who is the spouse,
parent, or son or daughter of a United States citizen
or of an immigrant lawfully admitted for permanent
residence, or
[(2) if the fraud or misrepresentation occurred at
least 10 years before the date of the immigrant's
application for a visa, entry, or adjustment of status
and it is established to the satisfaction of the
Attorney General that the admission to the United
States of such immigrant would not be contrary to the
national welfare, safety, or security of the United
States.]
(i) The Attorney General may, in the discretion of the
Attorney General, waive the application of clause (i) of
subsection (a)(6)(C)--
(1) in the case of an immigrant who is the spouse,
son, or daughter of a United States citizen; or
(2) in the case of an immigrant who is the spouse or
son or daughter of an alien lawfully admitted for
permanent residence, if it is established to the
satisfaction of the Attorney General that the refusal
of admission to the United States of such immigrant
alien would result in extreme hardship to the lawfully
resident spouse or parent of such an alien.
(j)(1) The additional requirements referred to in section
101(a)(15)(J) for an alien who is coming to the United States
under a program under which he will receive graduate medical
education or training are as follows:
(A) * * *
* * * * * * *
(D) The duration of the alien's participation in the
program of graduate medical education or training for
which the alien is coming to the United States is
limited to the time typically required to complete such
program, as determined by the Director of the United
States Information Agency at the time of the alien's
[entry] admission into the United States, based on
criteria which are established in coordination with the
Secretary of Health and Human Services and which take
into consideration the published requirements of the
medical specialty board which administers such
education or training program; except that--
(i) such duration is further limited to seven
years unless the alien has demonstrated to the
satisfaction of the Director that the country
to which the alien will return at the end of
such specialty education or training has an
exceptional need for an individual trained in
such specialty, and
(ii) the alien may, once and not later than
two years after the date the alien [enters] is
admitted to the United States as an exchange
visitor or acquires exchange visitor status,
change the alien's designated program of
graduate medical education or training if the
Director approves the change and if a
commitment and written assurance with respect
to the alien's new program have been provided
in accordance with subparagraph (C).
* * * * * * *
(k) Any alien, [excludable] inadmissible from the United
States under paragraph (5)(A) or (7)(A)(i) of subsection (a),
who is in possession of an immigrant visa may, if otherwise
admissible, be admitted in the discretion of the Attorney
General if the Attorney General is satisfied that [exclusion]
inadmissibility was not known to, and could not have been
ascertained by the exercise of reasonable diligence by, the
immigrant before the time of departure of the vessel or
aircraft from the last port outside the United States and
outside foreign contiguous territory or, in the case of an
immigrant coming from foreign contiguous territory, before the
time of the immigrant's application for admission.
(l)(1) * * *
(2) An alien may not be provided a waiver under this
subsection unless the alien has waived any right--
(A) 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
Guam, or
(B) to contest, other than on the basis of an
application for asylum, any action for [deportation
against] removal of the alien.
* * * * * * *
(n)(1) No alien may be admitted or provided status as a
nonimmigrant described in section 101(a)(15)(H)(i)(b) (in this
subsection referred to as an ``H-1B nonimmigrant'') in an
occupational classification unless the employer has filed with
the Secretary of Labor an application stating the following:
(A) The employer--
(i) is offering and will offer during the
period of authorized employment to aliens
admitted or provided status as a [nonimmigrant
described in section 101(a)(15)(H)(i)(b)] H-1B
nonimmigrant wages that are at least--
(I) * * *
* * * * * * *
(E)(i) If the employer, within the period beginning 6
months before and ending 90 days following the date of
filing of the application or during the 90 days
immediately preceding and following the date of filing
of any visa petition supported by the application, has
laid off or lays off any protected individual with
substantially equivalent qualifications and experience
in the specific employment as to which the nonimmigrant
is sought or is employed, the employer will pay a wage
to the nonimmigrant that is at least 110 percent of the
arithmetic mean of the last wage earned by all such
laid off individuals (or, if greater, at least 110
percent of the arithmetic mean of the highest wage
earned by all such laid off individuals within the most
recent year if the employer reduced the wage of any
such laid off individual during such year other than in
accordance with a general company-wide reduction of
wages for substantially all employees).
(ii) Except as provided in clause (iii), in the case
of an H-1B-dependent employer which employs an H-1B
nonimmigrant, the employer shall not place the
nonimmigrant with another employer where--
(I) the nonimmigrant performs his or her
duties in whole or in part at one or more
worksites owned, operated, or controlled by
such other employer, and
(II) there are indicia of an employment
relationship between the nonimmigrant and such
other employer.
(iii) Clause (ii) shall not apply to an employer's
placement of an H-1B nonimmigrant with another employer
if--
(I) the other employer has executed an
attestation that it, within the period
beginning 6 months before and ending 90 days
following the date of filing of the application
or during the 90 days immediately preceding and
following the date of filing of any visa
petition supported by the application, has not
laid off and will not lay off any protected
individual with substantially equivalent
qualifications and experience in the specific
employment as to which the H-1B nonimmigrant is
being sought or is employed, or
(II) the employer pays a wage to the
nonimmigrant that is at least 110 percent of
the arithmetic mean of the last wage earned by
all such laid off individuals (or, if greater,
at least 110 percent of the arithmetic mean of
the highest wage earned by all such laid off
individuals within the most recent year if the
other employer reduced the wage of any such
laid off individual during such year other than
in accordance with a general company-wide
reduction of wages for substantially all
employees).
(iv) For purposes of this subparagraph, the term
``laid off'', with respect to an individual--
(I) refers to the individual's loss of
employment, other than a discharge for
inadequate performance, cause, voluntary
departure, or retirement, and
(II) does not include any situation in which
the individual involved is offered, as an
alternative to such loss of employment, a
similar job opportunity with the same employer
(or with the H-1B-dependent employer described
in clause (ii)) carrying equivalent or higher
compensation and benefits as the position from
which the employee was laid off, regardless of
whether or not the employee accepts the offer.
(v) For purposes of this subparagraph, the term
``protected individual'' means an individual who--
(I) is a citizen or national of the United
States, or
(II) is an alien who is lawfully admitted for
permanent residence, is granted the status of
an alien lawfully admitted for temporary
residence under section 210(a), 210A(a), or
245(a)(1), is admitted as a refugee under
section 207, or is granted asylum under section
208.
* * * * * * *
(2)(A) The Secretary shall establish a process for the
receipt, investigation, and disposition of complaints
respecting a petitioner's failure to meet a condition specified
in an application submitted under paragraph (1) or a
petitioner's misrepresentation of material facts in such an
application. Complaints may be filed by any aggrieved person or
organization (including bargaining representatives), except
that the Secretary may only file such a complaint in the case
of an H-1B-dependent employer (as defined in subparagraph (E))
or when conducting an annual review of a plan pursuant to
subparagraph (F)(i) if there appears to be a violation of an
attestation or a misrepresentation of a material fact in an
application. No investigation or hearing shall be conducted
with respect to a non-H-1B-dependent employer except in
response to a complaint filed under the previous sentence. 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.
* * * * * * *
(C) If the Secretary finds, after notice and opportunity
for a hearing, a failure to meet a condition of paragraph
(1)(B) or (1)(E), a substantial failure to meet a condition of
paragraphs (1)(C) or (1)(D), a willful failure to meet a
condition of paragraph (1)(A), or a misrepresentation of
material fact in an application--
(i) the Secretary shall notify the Attorney General
of such finding and may, in addition, impose such other
administrative remedies (including civil monetary
penalties in an amount not to exceed [$1,000] $5,000
per violation) as the Secretary determines to be
appropriate, and
[(ii) the Attorney General shall 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.]
(ii) the Attorney General shall not approve petitions
filed with respect to that employer (or any employer
who is a successor in interest) under section 204 or
214(c) for aliens to be employed by the employer--
(I) during a period of at least 1 year in the
case of the first determination of a violation
or any subsequent determination of a violation
occurring within 1 year of that first violation
or any subsequent determination of a nonwillful
violation occurring more than 1 year after the
first violation;
(II) during a period of at least 5 years in
the case of a determination of a willful
violation occurring more than 1 year after the
first violation; and
(III) at any time in the case of a
determination of a willful violation occurring
more than 5 years after a violation described
in subclause (II).
(D) If the Secretary finds, after notice and opportunity
for a hearing, that an employer has not paid wages at the wage
level specified under the application and required under
paragraph (1), the Secretary shall order the employer to
provide for payment of such amounts of back pay as may be
required to comply with the requirements of paragraph (1),
whether or not a penalty under subparagraph (C) has been
imposed. If a penalty under subparagraph (C) has been imposed
in the case of a willful violation, the Secretary shall impose
on the employer a civil monetary penalty in an amount equalling
twice the amount of backpay.
(E) In this subsection, the term ``H-1B-dependent employer''
means an employer that--
(i)(I) has fewer than 21 full-time equivalent
employees who are employed in the United States, and
(II) employs 4 or more H-1B nonimmigrants; or
(ii)(I) has at least 21 but not more than 150 full-
time equivalent employees who are employed in the
United States, and (II) employs H-1B nonimmigrants in a
number that is equal to at least 20 percent of the
number of such full-time equivalent employees; or
(iii)(I) has at least 151 full-time equivalent
employees who are employed in the United States, and
(II) employs H-1B nonimmigrants in a number that is
equal to at least 15 percent of the number of such
full-time equivalent employees.
In applying this subparagraph, any group treated as a single
employer under subsection (b), (c), (m), or (o) of section 414
of the Internal Revenue Code of 1986 shall be treated as a
single employer. Aliens employed under a petition for H-1B
nonimmigrants shall be treated as employees, and counted as
nonimmigrants under section 101(a)(15)(H)(i)(b) under this
subparagraph. In this subsection, the term ``non-H-1B-dependent
employer'' means an employer that is not an H-1B-dependent
employer.
(F)(i) An employer who is an H-1B-dependent employer as
defined in subparagraph (E) can nevertheless be treated as a
non-H-1B-dependent employer for five years on a probationary
status if--
(I) the employer has demonstrated to the satisfaction
of the Secretary of Labor that it has developed a
reasonable plan for reducing its use of H-1B
nonimmigrants over a five-year period to the level of a
non-H-1B-dependent employer, and
(II) annual reviews of that plan by the Secretary of
Labor indicate successful implementation of that plan.
If the employer has not met the requirements established in
this clause, the probationary status ends and the employer
shall be treated as an H-1B-dependent employer until such time
as the employer can prove to the Secretary of Labor that it no
longer is an H-1B-dependent employer as defined in subparagraph
(E).
(ii) The probationary program set out in clause (i) shall be
effective for no longer than five years after the date of the
enactment of this subparagraph.
(G) Under regulations of the Secretary, the previous
provisions of this paragraph shall apply to complaints
respecting a failure of an other employer to comply with an
attestation described in paragraph (1)(E)(iii)(I) in the same
manner that they apply to complaints with respect to a failure
to comply with a condition described in paragraph (1)(E)(i).
(3) For purposes of determining the actual wage level paid
under paragraph (1)(A)(i)(I), an employer shall not be required
to have and document an objective system to determine the wages
of workers.
(4) For purposes of determining the actual wage level paid
under paragraph (1)(A)(i)(I), a non-H-1B-dependent employer of
more than 1,000 full-time equivalent employees in the United
States may demonstrate that in determining the wages of H-1B
nonimmigrants, it utilizes a compensation and benefits system
that has been previously certified by the Secretary of Labor
(and recertified at such intervals the Secretary of Labor may
designate) to satisfy all of the following conditions:
(A) The employer has a company-wide compensation
policy for its full-time equivalent employees which
ensures salary equity among employees similarly
employed.
(B) The employer has a company-wide benefits policy
under which all full-time equivalent employees
similarly employed are eligible for substantially the
same benefits or under which some employees may accept
higher pay, at least equal in value to the benefits, in
lieu of benefits.
(C) The compensation and benefits policy is
communicated to all employees.
(D) The employer has a human resources or
compensation function that administers its compensation
system.
(E) The employer has established documentation for
the job categories in question.
An employer's payment of wages consistent with a system which
meets the conditions of subparagraphs (A) through (E) of this
paragraph which has been certified by the Secretary of Labor
pursuant to this paragraph shall be deemed to satisfy the
requirements of paragraph (1)(A)(i)(I).
(5) For purposes of determining the prevailing wage level
paid under paragraph (1)(A)(i)(II), employers may provide a
published survey, a State Employment Security Agency
determination, a determination by an accepted private source,
or any other legitimate source. The Secretary of Labor shall,
not later than 180 days from the date of enactment of this
paragraph, provide for acceptance of prevailing wage
determinations not made by a State Employment Security Agency.
The Secretary of Labor or the Secretary's designate must either
accept such a non-State Employment Security Agency wage
determination or issue a written decision rejecting the
determination and detailing the legitimate reasons that the
determination is not acceptable. If a detailed rejection is not
issued within 45 days of the date of the Secretary's receipt of
such determination, the determination will be deemed accepted.
An employer's payment of wages consistent with a prevailing
wage determination not rejected by the Secretary of Labor under
this paragraph shall be deemed to satisfy the requirements of
paragraph (1)(A)(i)(II).
(6) In carrying out this subsection in the case of an
employer that is a non-H-1B-dependent employer--
(A) the employer is not required to post a notice at
a worksite that was not listed on the application under
paragraph (1) if the worksite is within the area of
intended employment listed on such application for such
nonimmigrant; and
(B) if the employer has filed and had certified an
application under paragraph (1) with respect to one or
more H-1B nonimmigrants for one or more areas of
employment--
(i) the employer is not required to file and
have certified an additional application under
paragraph (1) with respect to such a
nonimmigrant for an area of employment not
listed in the previous application because the
employer has placed one or more such
nonimmigrants in such a nonlisted area so long
as either (I) each such nonimmigrant is not
placed in such nonlisted areas for a period
exceeding 45 workdays in any 12-month period
and not to exceed 90 workdays in any 36-month
period, or (II) each such nonimmigrant's
principal place of employment has not changed
to a nonlisted area, and
(ii) the employer is not required to pay per
diem and transportation costs at any specified
rates for work performed in such a nonlisted
area.
(7) In computing the prevailing wage level for an
occupational classification in an area of employment for
purposes of paragraph (1)(A)(i)(II) and subsection (a)(5)(A) in
the case of an employee of (A) an institution of higher
education (as defined in section 1201(a) of the Higher
Education Act of 1965), or a related or affiliated nonprofit
entity, or (B) a nonprofit scientific research organization,
the prevailing wage level shall only take into account
employees at such institutions and entities in the area of
employment.
[(o) An alien who has been physically present in the United
States shall not be eligible to receive an immigrant visa
within ninety days following departure therefrom unless--
[(1) the alien was maintaining a lawful nonimmigrant
status at the time of such departure, or
[(2) the alien is the spouse or unmarried child of an
individual who obtained temporary or permanent resident
status under section 210 or 245A of the Immigration and
Nationality Act or section 202 of the Immigration
Reform and Control Act of 1986 at any date, who--
[(A) as of May 5, 1988, was the unmarried
child or spouse of the individual who obtained
temporary or permanent resident status under
section 210 or 245A of the Immigration and
Nationality Act or section 202 of the
Immigration Reform and Control Act of 1986;
[(B) entered the United States before May 5,
1988, resided in the United States on May 5,
1988, and is not a lawful permanent resident;
and
[(C) applied for benefits under section
301(a) of the Immigration Act of 1990.]
* * * * * * *
admission of certain aliens on giving bond
Sec. 213. An alien [excludable] inadmissible under
paragraph (4) of section 212(a) may, if otherwise admissible,
be admitted in the discretion of the Attorney General upon the
giving of a suitable and proper bond or undertaking approved by
the Attorney General, in such amount and containing such
conditions as he may prescribe, to the United States, and to
all States, territories, counties, towns, municipalities, and
districts thereof holding the United States and all States,
territories, counties, towns, municipalities, and districts
thereof harmless against such alien becoming a public charge.
Such bond or undertaking shall terminate upon the permanent
departure from the United States, the naturalization, or the
death of such alien, and any sums or other security held to
secure performance thereof, except to the extent forfeited for
violation of the terms thereof, shall be returned to the person
by whom furnished, or to his legal representatives. Suit may be
brought thereon in the name and by the proper law officers of
the United States for the use of the United States, or of any
State, territory, district, county, town, or municipality in
which such alien becomes a public charge, irrespective of
whether a demand for payment of public expenses has been made.
requirements for sponsor's affidavit of support
Sec. 213A. (a) Enforceability.--(1) No affidavit of support
may be accepted by the Attorney General or by any consular
officer to establish that an alien is not inadmissible as a
public charge under section 212(a)(4) unless such affidavit is
executed by a sponsor of the alien as a contract--
(A) that is legally enforceable against the sponsor
by the Federal Government and by any State (or any
political subdivision of such State) that provides any
means-tested public benefits program, subject to
subsection (b)(4); and
(B) in which the sponsor agrees to submit to the
jurisdiction of any Federal or State court for the
purpose of actions brought under subsection (b)(2).
(2)(A) An affidavit of support shall be enforceable with
respect to benefits provided under any means-tested public
benefits program for an alien who is admitted to the United
States as the parent of a United States citizen under section
203(a)(2) until the alien is naturalized as a citizen of the
United States.
(B) An affidavit of support shall be enforceable with respect
to benefits provided under any means-tested public benefits
program for an alien who is admitted to the United States as
the spouse of a United States citizen or lawful permanent
resident under section 201(b)(2) or 203(a)(2) until--
(i) 7 years after the date the alien is lawfully
admitted to the United States for permanent residence,
or
(ii) such time as the alien is naturalized as a
citizen of the United States,
whichever occurs first.
(C) An affidavit of support shall be enforceable with respect
to benefits provided under any means-tested public benefits
program for an alien who is admitted to the United States as
the minor child of a United States citizen or lawful permanent
resident under section 201(b)(2) or section 203(a)(2) until the
child attains the age of 21 years.
(D)(i) Notwithstanding any other provision of this
subparagraph, a sponsor shall be relieved of any liability
under an affidavit of support if the sponsored alien is
employed for a period sufficient to qualify for old age
benefits under title II of the Social Security Act and the
sponsor or alien is able to prove to the satisfaction of the
Attorney General that the alien so qualifies.
(ii) The Attorney General shall ensure that appropriate
information pursuant to clause (i) is provided to the System
for Alien Verification of Eligibility (SAVE).
(b) Reimbursement of Government Expenses.--(1)(A) Upon
notification that a sponsored alien has received any benefit
under any means-tested public benefits program, the appropriate
Federal, State, or local official shall request reimbursement
by the sponsor in the amount of such assistance.
(B) The Attorney General, in consultation with the Secretary
of Health and Human Services, shall prescribe such regulations
as may be necessary to carry out subparagraph (A).
(2) If within 45 days after requesting reimbursement, the
appropriate Federal, State, or local agency has not received a
response from the sponsor indicating a willingness to commence
payments, an action may be brought against the sponsor pursuant
to the affidavit of support.
(3) If the sponsor fails to abide by the repayment terms
established by such agency, the agency may, within 60 days of
such failure, bring an action against the sponsor pursuant to
the affidavit of support.
(4) No cause of action may be brought under this subsection
later than 10 years after the alien last received any benefit
under any means-tested public benefits program.
(5) If, pursuant to the terms of this subsection, a Federal,
State, or local agency requests reimbursement from the sponsor
in the amount of assistance provided, or brings an action
against the sponsor pursuant to the affidavit of support, the
appropriate agency may appoint or hire an individual or other
person to act on behalf of such agency acting under the
authority of law for purposes of collecting any moneys owed.
Nothing in this subsection shall preclude any appropriate
Federal, State, or local agency from directly requesting
reimbursement from a sponsor for the amount of assistance
provided, or from bringing an action against a sponsor pursuant
to an affidavit of support.
(c) Remedies.--Remedies available to enforce an affidavit of
support under this section include any or all of the remedies
described in section 3201, 3203, 3204, or 3205 of title 28,
United States Code, as well as an order for specific
performance and payment of legal fees and other costs of
collection, and include corresponding remedies available under
State law. A Federal agency may seek to collect amounts owed
under this section in accordance with the provisions of
subchapter II of chapter 37 of title 31, United States Code.
(d) Notification of Change of Address.--(1) The sponsor of an
alien shall notify the Federal Government and the State in
which the sponsored alien is currently residing within 30 days
of any change of address of the sponsor during the period
specified in subsection (a)(1).
(2) Any person subject to the requirement of paragraph (1)
who fails to satisfy such requirement shall be subject to a
civil penalty of--
(A) not less than $250 or more than $2,000, or
(B) if such failure occurs with knowledge that the
sponsored alien has received any benefit under any
means-tested public benefits program, not less than
$2,000 or more than $5,000.
(e) Definitions.--For the purposes of this section--
(1) Sponsor.--The term ``sponsor'' means, with
respect to an alien, an individual who--
(A) is a citizen or national of the United
States or an alien who is lawfully admitted to
the United States for permanent residence;
(B) is 18 years of age or over;
(C) is domiciled in any State;
(D) demonstrates, through presentation of a
certified copy of a tax return or otherwise,
(i) the means to maintain an annual income
equal to at least 200 percent of the poverty
level for the individual and the individual's
family (including the alien and any other
aliens with respect to whom the individual is a
sponsor), or (ii) for an individual who is on
active duty (other than active duty for
training) in the Armed Forces of the United
States, the means to maintain an annual income
equal to at least 100 percent of the poverty
level for the individual and the individual's
family including the alien and any other aliens
with respect to whom the individual is a
sponsor); and
(E) is petitioning for the admission of the
alien under section 204 (or is an individual
who accepts joint and several liability with
the petitioner).
(2) Federal poverty line.--The term ``Federal poverty
line'' means the income official poverty line (as
defined in section 673(2) of the Community Services
Block Grant Act) that is applicable to a family of the
size involved.
(3) Means-tested public benefits program.--The term
``means-tested public benefits program'' means a
program of public benefits (including cash, medical,
housing, and food assistance and social services) of
the Federal Government or of a State or political
subdivision of a State in which the eligibility of an
individual, household, or family eligibility unit for
benefits under the program, or the amount of such
benefits, or both are determined on the basis of
income, resources, or financial need of the individual,
household, or unit.
admission of nonimmigrants
Sec. 214. (a) * * *
* * * * * * *
(c)(1) * * *
(2)(A) The Attorney General shall provide for a procedure
under which an importing employer which meets requirements
established by the Attorney General may file a blanket petition
to import aliens as nonimmigrants described in section
101(a)(15)(L) instead of filing individual petitions under
paragraph (1) to import such aliens. Such procedure shall
permit the expedited processing of visas for [entry] admission
of aliens covered under such a petition.
* * * * * * *
(5)(A) * * *
(B) In the case of an alien who [enters] is admitted to the
United States in nonimmigrant status under section
101(a)(15)(O) or 101(a)(15)(P) and whose employment terminates
for reasons other than voluntary resignation, the employer
whose offer of employment formed the basis of such nonimmigrant
status and the petitioner are jointly and severally liable for
the reasonable cost of return transportation of the alien
abroad. The petitioner shall provide assurance satisfactory to
the Attorney General that the reasonable cost of that
transportation will be provided.
* * * * * * *
(d) A visa shall not be issued under the provisions of
section 101(a)(15)(K) until the consular officer has received a
petition filed in the United States by the fiancee or fiance of
the applying alien and approved by the Attorney General. The
petition shall be in such form and contain such information as
the Attorney General shall, by regulation, prescribe. It shall
be approved only after satisfactory evidence is submitted by
the petitioner to establish that the parties have previously
met in person within 2 years before the date of filing the
petition, have a bona fide intention to marry, and are legally
able and actually willing to conclude a valid marriage in the
United States within a period of ninety days after the alien's
arrival, except that the Attorney General in his discretion may
waive the requirement that the parties have previously met in
person. In the event the marriage with the petitioner does not
occur within three months after the [entry] admission of the
said alien and minor children, they shall be required to depart
from the United States and upon failure to do so shall be
[deported] removed in accordance with sections [242] 240 and
[243] 241.
* * * * * * *
(f)(1) Except as provided in paragraph (3), no alien shall
be entitled to nonimmigrant status described in section
101(a)(15)(D) if the alien intends to land for the purpose of
performing service on board a vessel of the United States (as
defined in section 2101(46) of title 46, United States Code) or
on an aircraft of an air carrier (as defined in [section 101(3)
of the Federal Aviation Act of 1958] section 40102(a)(2) of
title 49, United States Code) during a labor dispute where
there is a strike or lockout in the bargaining unit of the
employer in which the alien intends to perform such service.
* * * * * * *
[(j)] (k)(1) * * *
* * * * * * *
(4) As a condition for the admission, and continued stay in
lawful status, of such a nonimmigrant, the nonimmigrant--
(A) * * *
* * * * * * *
(C) must have executed a form that waives the
nonimmigrant's right to contest, other than on the
basis of an application for withholding of
[deportation] removal, any action for [deportation]
removal of the alien instituted before the alien
obtains lawful permanent resident status; and
* * * * * * *
[(k)] (l)(1) * * *
* * * * * * *
(3) Notwithstanding any other provision of this subsection,
the two-year foreign residence requirement under section 212(e)
shall apply with respect to an alien described in clause (iii)
of that section[, who has not otherwise been accorded status
under section 101(a)(27)(H),] if at any time the alien
practices medicine in an area other than an area described in
paragraph (1)(C).
* * * * * * *
conditional permanent resident status for certain alien spouses and
sons and daughters
Sec. 216. (a) * * *
(b) Termination of Status if Finding that Qualifying Marriage
Improper.--
(1) In general.--In the case of an alien with
permanent resident status on a conditional basis under
subsection (a), if the Attorney General determines,
before the second anniversary of the alien's obtaining
the status of lawful admission for permanent residence,
that--
(A) the qualifying marriage--
(i) was entered into for the purpose
of procuring an alien's [entry]
admission as an immigrant, or
(ii) has been judicially annulled or
terminated, other than through the
death of a spouse; or
* * * * * * *
(2) Hearing in [deportation] removal proceeding.--Any
alien whose permanent resident status is terminated
under paragraph (1) may request a review of such
determination in a proceeding to [deport] remove the
alien. In such proceeding, the burden of proof shall be
on the Attorney General to establish, by a
preponderance of the evidence, that a condition
described in paragraph (1) is met.
(c) Requirements of Timely Petition and Interview for Removal
of Condition.--
(1) * * *
(2) Termination of permanent resident status for
failure to file petition or have personal interview.--
(A) * * *
(B) Hearing in [deportation] removal
proceeding.--In any [deportation] removal
proceeding with respect to an alien whose
permanent resident status is terminated under
subparagraph (A), the burden of proof shall be
on the alien to establish compliance with the
conditions of paragraphs (1)(A) and (1)(B).
(3) Determination after petition and interview.--
(A) * * *
* * * * * * *
(D) Hearing in [deportation] removal
proceeding.--Any alien whose permanent resident
status is terminated under subparagraph (C) may
request a review of such determination in a
proceeding to [deport] remove the alien. In
such proceeding, the burden of proof shall be
on the Attorney General to establish, by a
preponderance of the evidence, that the facts
and information described in subsection (d)(1)
and alleged in the petition are not true with
respect to the qualifying marriage.
(4) Hardship waiver.--The Attorney General, in the
Attorney General's discretion, may remove the
conditional basis of the permanent resident status for
an alien who fails to meet the requirements of
paragraph (1) if the alien demonstrates that--
(A) extreme hardship would result if such
alien is [deported] removed,
* * * * * * *
(d) Details of Petition and Interview.--
(1) Contents of petition.--Each petition under
subsection (c)(1)(A) shall contain the following facts
and information:
(A) Statement of proper marriage and
petitioning process.--The facts are that--
(i) the qualifying marriage--
(I) was entered into in
accordance with the laws of the
place where the marriage took
place,
(II) has not been judicially
annulled or terminated, other
than through the death of a
spouse, and
(III) was not entered into
for the purpose of procuring an
alien's [entry] admission as an
immigrant; and
* * * * * * *
(2) Period for filing petition.--
(A) 90-day period before second
anniversary.--Except as provided in
subparagraph (B), the petition under subsection
(c)(1)(A) must be filed during the 90-day
period before the second anniversary of the
alien's obtaining the status of lawful
admission for permanent residence.
(B) Date petitions for good cause.--Such a
petition may be considered if filed after such
date, but only if the alien establishes to the
satisfaction of the Attorney General good cause
and extenuating circumstances for failure to
file the petition during the period described
in subparagraph (A).
(C) Filing of petitions during [deportation]
removal.--In the case of an alien who is the
subject of [deportation] removal hearings as a
result of failure to file a petition on a
timely basis in accordance with subparagraph
(A), the Attorney General may stay such
[deportation] removal proceedings against an
alien pending the filing of the petition under
subparagraph (B).
* * * * * * *
(f) Treatment of Certain Waivers.--In the case of an alien
who has permanent residence status on a conditional basis under
this section, if, in order to obtain such status, the alien
obtained a waiver under subsection (h) or (i) of section 212 of
certain grounds of [exclusion] inadmissibility, such waiver
terminates upon the termination of such permanent residence
status under this section.
(g) Definitions.--In this section:
(1) The term ``alien spouse'' means an alien who
obtains the status of an alien lawfully admitted for
permanent residence (whether on a conditional basis or
otherwise)--
(A) as [an immediate relative (described in
section 201(b)) as the spouse of a citizen of
the United States] the spouse of a citizen of
the United States (described in section
201(b)),
(B) under section 214(d) as the fiancee or
fiance of a citizen of the United States, or
(C) under section 203(a)[(2)](1) as the
spouse of an alien lawfully admitted for
permanent residence,
by virtue of a marriage which was entered into less
than 24 months before the date the alien obtains such
status by virtue of such marriage, but does not include
such an alien who only obtains such status as a result
of section [203(d)] 203(e).
(2) The term ``alien son or daughter'' means an alien
who obtains the status of an alien lawfully admitted
for permanent residence (whether on a conditional basis
or otherwise) by virtue of being the son or daughter of
an individual through a qualifying marriage.
(3) The term ``qualifying marriage'' means the
marriage described to in paragraph (1).
(4) The term ``petitioning spouse'' means the spouse
of a qualifying marriage, other than the alien.
conditional permanent resident status for certain alien entrepreneurs,
spouses, and children
Sec. 216A. (a) * * *
(b) Termination of Status if Finding that Qualifying
Entrepreneurship Improper.--
(1) In general.--In the case of an alien entrepreneur
with permanent resident status on a conditional basis
under subsection (a), if the Attorney General
determines, before the second anniversary of the
alien's obtaining the status of lawful admission for
permanent residence, that--
(A) the establishment of the commercial
enterprise was intended solely as a means of
evading the immigration laws of the United
States,
(B)(i) a commercial enterprise was not
established by the alien,
[(ii) the alien did not invest or was not
actively in the process of investing the
requisite capital; or]
(ii) subject to paragraph (3), the alien did
not invest (and maintain investment of) the
requisite capital, or did not employ the
requisite number of employees, throughout
substantially the entire period since the
alien's admission; or
(iii) the alien was not sustaining the
actions described in clause (i) or (ii)
throughout the period of the alien's residence
in the United States, or
(C) the alien was otherwise not conforming to
the requirements of section 203(b)(5),
then the Attorney General shall so notify the alien
involved and, subject to paragraph (2), shall terminate
the permanent resident status of the alien (and the
alien spouse and alien child) involved as of the date
of the determination.
(2) Hearing in [deportation] removal proceeding.--Any
alien whose permanent resident status is terminated
under paragraph (1) may request a review of such
determination in a proceeding to deport the alien. In
such proceeding, the burden of proof shall be on the
Attorney General to establish, by a preponderance of
the evidence, that a condition described in paragraph
(1) is met.
(3) Exceptions.--
(A) Good faith exception.--Paragraph
(1)(B)(ii) shall not apply to an alien to the
extent that the alien continues to attempt in
good faith throughout the period since
admission to invest (and maintain investment
of) the requisite capital, and to employ the
requisite number of employees, but was unable
to do so due to circumstances for which the
alien should not justly be held responsible.
(B) Extension.--In the case of an alien to
whom the exception under subparagraph (A)
applies, the application period under
subsection (d)(2) (and period for termination
under paragraph (1)) shall be extended (for up
to 3 additional years) by such additional
period as may be necessary to enable the alien
to have had the requisite capital and number of
employees throughout a 2-year period. Such
extension shall terminate at any time at which
the Attorney General finds that the alien has
not continued to attempt in good faith to
invest such capital and employ such employees.
(c) Requirements of Timely Petition and Interview for Removal
of Condition.--
(1) * * *
(2) Termination of permanent resident status for
failure to file petition or have personal interview.--
(A) * * *
(B) Hearing in [deportation] removal
proceeding.--In any [deportation] removal
proceeding with respect to an alien whose
permanent resident status is terminated under
subparagraph (A), the burden of proof shall be
on the alien to establish compliance with the
conditions of paragraphs (1)(A) and (1)(B).
(3) Determination after petition and interview.--
(A) * * *
* * * * * * *
(D) Hearing in [deportation] removal
proceeding.--Any alien whose permanent resident
status is terminated under subparagraph (C) may
request a review of such determination in a
proceeding to [deport] remove the alien. In
such proceeding, the burden of proof shall be
on the Attorney General to establish, by a
preponderance of the evidence, that the facts
and information described in subsection (d)(1)
and alleged in the petition are not true with
respect to the qualifying commercial
enterprise.
(d) Details of Petition and Interview.--
(1) * * *
(2) Period for filing petition.--
(A) * * *
* * * * * * *
(C) Filing of petitions during [deportation]
removal.--In the case of an alien who is the
subject of [deportation] removal hearings as a
result of failure to file a petition on a
timely basis in accordance with subparagraph
(A), the Attorney General may stay such
[deportation] removal proceedings against an
alien pending the filing of the petition under
subparagraph (B).
* * * * * * *
(f) Definitions.--In this section:
(1) The term ``alien entrepreneur'' means an alien
who obtains the status of an alien lawfully admitted
for permanent residence (whether on a conditional basis
or otherwise) under section 203(b)[(5)](4).
* * * * * * *
conditional permanent resident status for certain foreign language
teachers
Sec. 216B. (a) In General.--Subject to the succeeding
provisions of this section, section 216A shall apply to an
alien foreign language teacher (as defined in subsection
(d)(1)) and to an alien spouse or alien child (as defined in
subsection (d)(2)) in the same manner as such section applies
to an alien entrepreneur and an alien spouse or alien child.
(b) Timing for Petition.--
(1) In general.--In applying section 216A under
subsection (a), any reference to a ``second anniversary
of an alien's lawful admission for permanent
residence'' is deemed a reference to the end of the
time period described in paragraph (2).
(2) Time period for determination.--The time period
described in this paragraph is 5 years less the period
of experience, during the 5-year period ending on the
date the alien foreign language teacher obtains
permanent resident status, of teaching a language
(other than English) full-time at an accredited
elementary or middle school.
(c) Requirement for Total of 5 Years' Teaching Experience.--
In applying section 216A under subsection (a), the
determination of the Attorney General under section 216A(b)(1)
shall be whether (and the facts and information under section
216A(d)(1) shall demonstrate that) the alien has been employed
on a substantially full-time basis as a foreign language
teacher at an accredited elementary or middle school in the
United States during the period since obtaining permanent
residence status (instead of the determinations described in
section 216A(b)(1) and of the facts and information described
in section 216A(d)(1)).
(d) Definitions.--In this section:
(1) The term ``alien foreign language teacher'' means
an alien who obtains the status of an alien lawfully
admitted for permanent residence (whether on a
conditional basis or otherwise) under section
203(b)(4)(C)(ii) on the basis of less than 5 years'
teaching experience.
(2) The term ``alien spouse'' and the term ``alien
child'' mean an alien who obtains the status of an
alien lawfully admitted for permanent residence
(whether on a conditional basis or otherwise) by virtue
of being the spouse or child, respectively, of an alien
foreign language teacher.
visa waiver pilot program for certain visitors
Sec. 217. (a) * * *
(b) Waiver of Rights.--An alien may not be provided a waiver
under the pilot program unless the alien has waived any right--
(1) 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
(2) to contest, other than on the basis of an
application for asylum, any action for [deportation
against] removal of the alien.
(c) Designation of Pilot Program Countries.--
(1) * * *
* * * * * * *
(3) Continuing and subsequent qualifications.--For
each fiscal year (within the pilot program period)
after the initial period--
(A) Continuing qualification.--In the case of
a country which was a pilot program country in
the previous fiscal year, a country may not be
designated as a pilot program country unless
the sum of--
(i) the total of the number of
nationals of that country who were
[excluded from admission] denied
admission at the time of arrival or
withdrew their application for
admission during such previous fiscal
year as a nonimmigrant visitor, and
(ii) the total number of nationals of
that country who were admitted as
nonimmigrant visitors during such
previous fiscal year and who violated
the terms of such admission,
was less than 2 percent of the total number of
nationals of that country who applied for
admission as nonimmigrant visitors during such
previous fiscal year.
* * * * * * *
(f) Definition of Pilot Program Period.--For purposes of this
section, the term ``pilot program period'' means the period
beginning on October 1, 1988, and ending on September 30, 1996.
(g) Pilot Program Country With Probationary Status.--
(1) In general.--The Attorney General and the
Secretary of State acting jointly may designate any
country as a pilot program country with probationary
status if it meets the requirements of paragraph (2).
(2) Qualifications.--A country may not be designated
as a pilot program country with probationary status
unless the following requirements are met:
(A) Nonimmigrant visa refusal rate for
previous 2-year period.--The average number of
refusals of nonimmigrant visitor visas for
nationals of the country during the two
previous full fiscal years was less than 3.5
percent of the total number of nonimmigrant
visitor visas for nationals of that country
which were granted or refused during those
years.
(B) Nonimmigrant visa refusal rate for
previous year.--The number of refusals of
nonimmigrant visitor visas for nationals of the
country during the previous full fiscal year
was less than 3 percent of the total number of
nonimmigrant visitor visas for nationals of
that country which were granted or refused
during that year.
(C) Low exclusions and violations rate for
previous year.--The sum of--
(i) the total number of nationals of
that country who were [excluded from
admission] denied admission at the time
of arrival or withdrew their
application for admission during the
preceding fiscal year as a nonimmigrant
visitor, and
(ii) the total number of nationals of
that country who were admitted as
nonimmigrant visitors during the
preceding fiscal year and who violated
the terms of such admission,
was less than 1.5 percent of the total number
of nationals of that country who applied for
admission as nonimmigrant visitors during the
preceding fiscal year.
(D) Machine readable passport program.--The
government of the country certifies that it has
or is in the process of developing a program to
issue machine-readable passports to its
citizens.
(3) Continuing and subsequent qualifications for
pilot program countries with probationary status.--The
designation of a country as a pilot program country
with probationary status shall terminate if either of
the following occurs:
(A) The sum of--
(i) the total number of nationals of
that country who were [excluded from
admission] denied admission at the time
of arrival or withdrew their
application for admission during the
preceding fiscal year as a nonimmigrant
visitor, and
(ii) the total number of nationals of
that country who were admitted as
visitors during the preceding fiscal
year and who violated the terms of such
admission,
is more than 2.0 percent of the total number of
nationals of that country who applied for
admission as nonimmigrant visitors during the
preceding fiscal year.
(B) The country is not designated as a pilot
program country under subsection (c) within 3
fiscal years of its designation as a pilot
program country with probationary status under
this subsection.'''.
(4) Designation of pilot program countries with
probationary status as pilot program countries.--In the
case of a country which was a pilot program country
with probationary status in the preceding fiscal year,
a country may be designated by the Attorney General and
the Secretary of State, acting jointly, as a pilot
program country under subsection (c) if--
(A) the total of the number of nationals of
that country who were [excluded from admission]
denied admission at the time of arrival or
withdrew their application for admission during
the preceding fiscal year as a nonimmigrant
visitor, and
(B) the total number of nationals of that
country who were admitted as nonimmigrant
visitors during the preceding fiscal year and
who violated the terms of such admission,
was less than 2 percent of the total number of
nationals of that country who applied for admission as
nonimmigrant visitors during such preceding fiscal
year.
* * * * * * *
Chapter 3--Issuance of Entry Documents
issuance of visas
Sec. 221. (a) Under the conditions hereinafter prescribed and
subject to the limitations prescribed in this Act or
regulations issued thereunder, a consular officer may issue (1)
to an immigrant who has made proper application therefor, an
immigrant visa which shall consist of the application provided
for in section 222, visaed by such consular officer, and shall
specify the foreign state, if any, to which the immigrant is
charged, the immigrant's particular status under such foreign
state, the preference[, immediate relative,] or special
immigrant classification to which the alien is charged, the
date on which the validity of the visa shall expire, and such
additional information as may be required; and (2) to a
nonimmigrant who has made proper application therefor, a
nonimmigrant visa, which shall specify the classification under
section 101(a)(15) of the nonimmigrant, the period during which
the nonimmigrant visa shall be valid, and such additional
information as may be required.
* * * * * * *
(c) An immigrant visa shall be valid for such period, not
exceeding [four months] six months, as shall be by regulations
prescribed, except that any visa issued to a child lawfully
adopted by a United States citizen and spouse while such
citizen is serving abroad in the United States Armed Forces, or
is employed abroad by the United States Government, or is
temporarily abroad on business, shall be valid until such time,
for a period not to exceed three years, as the adoptive citizen
parent returns to the United States in due course of his
service, employment, or business. A nonimmigrant visa shall be
valid for such periods as shall be by regulations prescribed.
In prescribing the period of validity of a nonimmigrant visa in
the case of nationals of any foreign country who are eligible
for such visas, the Secretary of State shall, insofar as
practicable, accord to such nationals the same treatment upon a
reciprocal basis as such foreign country accords to nationals
of the United States who are within a similar class; except
that in the case of aliens who are nationals of a foreign
country and who either are granted refugee status and firmly
resettled in another foreign country or are granted permanent
residence and residing in another foreign country, the
Secretary of State may prescribe the period of validity of such
a visa based upon the treatment granted by that other foreign
country to alien refugees and permanent residents,
respectively, in the United States. An immigrant visa may be
replaced under the original number during the fiscal year in
which the original visa was issued for an immigrant who
establishes to the satisfaction of the consular officer that he
was unable to use the original immigrant visa during the period
of its validity because of reasons beyond his control and for
which he was not responsible: Provided, That the immigrant is
found by the consular officer to be eligible for an immigrant
visa and the immigrant pays again the statutory fees for an
application and an immigrant visa.
* * * * * * *
(f) Each nonimmigrant shall present or surrender to the
immigration officer at the port of entry such documents as may
be by regulation required. In the case of an alien crewman not
in possession of any individual documents other than a passport
and until such time as it becomes practicable to issue
individual documents, such alien crewman may be admitted,
subject to the provisions of this title, if his name appears in
the crew list of the vessel or aircraft on which he arrives and
the crew list is visaed by a consular officer, but the consular
officer shall have the right to [exclude] deny admission to any
alien crewman from the crew list visa.
* * * * * * *
(h) Nothing in this Act shall be construed to entitle any
alien, to whom a visa or other documentation has been issued,
to [enter] be admitted the United States, if, upon arrival at a
port of entry in the United States, he is found to be
inadmissible under this Act, or any other provision of law. The
substance of this subsection shall appear upon every visa
application.
* * * * * * *
applications for visas
Sec. 222. (a) * * *
* * * * * * *
(g) In the case of an alien who has entered and remained in
the United States beyond the authorized period of stay, the
alien is not eligible to be admitted to the United States as a
nonimmigrant on the basis of a visa issued other than in a
consular office located in the country of the alien's
nationality (or, if there is no office in such country, at such
other consular office as the Secretary of State shall specify).
* * * * * * *
[immediate relative and special immigrant visas]
visas for spouses and children of citizens and special immigrants
Sec. 224. A consular officer may, subject to the limitations
provided in section 221, issue an immigrant visa to a special
immigrant or [immediate relative] a spouse or child of a
citizen of the United States as such upon satisfactory proof,
under regulations prescribed under this Act, that the applicant
is entitled to special immigrant or [immediate relative status]
status or status as a spouse or child of a citizen of the
United States.
[Chapter 4--Provisions Relating to Entry and Exclusion]
Chapter 4--Inspection, Apprehension, Examination, Exclusion, and
Removal
lists of alien and citizen passengers arriving or departing; record of
resident aliens and citizens leaving permanently for foreign country
Sec. 231. (a) [Upon the arrival of any person by water or by
air at any port within the United States from any place outside
the United States, it shall be the duty of the master or
commanding officer, or authorized agent, owner, or consignee of
the vessel or aircraft, having any such person on board to
deliver to the immigration officers at the port of arrival
typewritten or printed lists or manifests of the persons on
board such vessel or aircraft.] In connection with the arrival
of any person by water or by air at any port within the United
States from any place outside the United States, it shall be
the duty of the master or commanding officer, or authorized
agent, owner, or consignee of the vessel or aircraft, having
such person on board to deliver to the immigration officers at
the port of arrival, or other place designated by the Attorney
General, electronic, typewritten, or printed lists or manifests
of the persons on board such vessel or aircraft. Such lists or
manifests [shall be prepared] shall be prepared and submitted
at such time, be in such form and shall contain such
information as the Attorney General shall prescribe by
regulation as being necessary for the identification of the
persons transported and for the enforcement of the immigration
laws. Such lists or manifests shall contain, but not be limited
to, for each person transported, the person's full name, date
of birth, gender, citizenship, travel document number (if
applicable) and arriving flight number. This subsection shall
not require the master or commanding officer, or authorized
agent, owner, or consignee of a vessel or aircraft to furnish a
list or manifest relating (1) to an alien crewman or (2) to any
other person arriving by air on a trip originating in foreign
contiguous territory, except (with respect to such arrivals by
air) as may be required by regulations issued pursuant to
section 239.
* * * * * * *
[detention of aliens for observation and examination]
detention of aliens for physical and mental examination
Sec. 232. (a) Detention of Aliens.--For the purpose of
determining whether aliens (including alien crewmen) arriving
at ports of the United States belong to any of the classes
[excluded by] inadmissible under this Act, by reason of being
afflicted with any of the diseases or mental or physical
defects or disabilities set forth in section 212(a), or
whenever the Attorney General has received information showing
that any aliens are coming from a country or have embarked at a
place where any of such diseases are prevalent or epidemic,
such aliens shall be detained by the Attorney General for a
sufficient time to enable the immigration officers and medical
officers to subject such aliens to observation and an
examination sufficient to determine whether or not they belong
to [the excluded classes] inadmissible classes.
(b) Physical and Mental Examination.--The physical and mental
examination of arriving aliens (including alien crewmen) shall
be made by medical officers of the United States Public Health
Service, who shall conduct all medical examinations and shall
certify, for the information of the immigration officers and
the [special inquiry officers] immigration judges, any physical
and mental defect or disease observed by such medical officers
in any such alien. If medical officers of the United States
Public Health Service are not available, civil surgeons of not
less than four years' professional experience may be employed
for such service upon such terms as may be prescribed by the
Attorney General. Aliens (including alien crewmen) arriving at
ports of the United States shall be examined by at least one
such medical officer or civil surgeon under such administrative
regulations as the Attorney General may prescribe, and under
medical regulations prepared by the Secretary of Health and
Human Services. Medical officers of the United States Public
Health Service who have had special training in the diagnosis
of insanity and mental defects shall be detailed for duty or
employed at such ports of entry as the Attorney General may
designate, and such medical officers shall be provided with
suitable facilities for the detention and examination of all
arriving aliens who it is suspected may be [excludable]
inadmissible under paragraph (1) of section 212(a), and the
services of interpreters shall be provided for such
examination. Any alien certified under paragraph (1) of section
212(a) may appeal to a board of medical officers of the United
States Public Health Service, which shall be convened by the
Secretary of Health and Human Services, and any such alien may
introduce before such board one expert medical witness at his
own cost and expense.
(c) Certification of Certain Helpless Aliens.--If an
examining medical officer determines that an alien arriving in
the United States is inadmissible, is helpless from sickness,
mental or physical disability, or infancy, and is accompanied
by another alien whose protection or guardianship may be
required, the officer may certify such fact for purposes of
applying section 212(a)(10)(B) with respect to the other alien.
entry through or from foreign contiguous territory and adjacent
islands; landing stations
Sec. [238.] 233. (a) The Attorney General shall have power to
enter into contracts with transportation lines for the [entry
and] inspection and admission of aliens coming to the United
States from foreign contiguous territory or from adjacent
islands. No such transportation line shall be allowed to land
any such alien in the United States until and unless it has
entered into any such contracts which may be required by the
Attorney General.
* * * * * * *
designation of ports of entry for aliens arriving by civil aircraft
Sec. [239.] 234. The Attorney General is authorized (1) by
regulation to designate as ports of entry for aliens arriving
by aircraft any of the ports of entry for civil aircraft
designated as such in accordance with law; (2) by regulation to
provide such reasonable requirements for aircraft in civil air
navigation with respect to giving notice of intention to land
in advance of landing, or notice of landing, as shall be deemed
necessary for purposes of administration and enforcement of
this Act; and (3) by regulation to provide for the application
to civil air navigation of the provisions of this Act where not
expressly so provided in this Act to such extent and upon such
conditions as he deems necessary. Any person who violates any
regulation made under this section shall be subject to a civil
penalty of $2,000 which may be remitted or mitigated by the
Attorney General in accordance with such proceedings as the
Attorney General shall by regulation prescribe. In case the
violation is by the owner or person in command of the aircraft,
the penalty shall be a lien upon the aircraft, and such
aircraft may be libeled therefor in the appropriate United
States court. The determination by the Attorney General and
remission or mitigation of the civil penalty shall be final. In
case the violation is by the owner or person in command of the
aircraft, the penalty shall be a lien upon the aircraft and may
be collected by proceedings in rem which shall conform as
nearly as may be to civil suits in admiralty. The Supreme Court
of the United States, and under its direction other courts of
the United States, are authorized to prescribe rules regulating
such proceedings against aircraft in any particular not
otherwise provided by law. Any aircraft made subject to a lien
by this section may be summarily seized by, and placed in the
custody of such persons as the Attorney General may by
regulation prescribe. The aircraft may be released from such
custody upon deposit of such amount not exceeding $2,000 as the
Attorney General may prescribe, or of a bond in such sum and
with such sureties as the Attorney General may prescribe,
conditioned upon the payment of the penalty which may be
finally determined by the Attorney General.
[physical and mental examination
[Sec. 234. The physical and mental examination of arriving
aliens (including alien crewmen) shall be made by medical
officers of the United States Public Health Service, who shall
conduct all medical examinations and shall certify, for the
information of the immigration officers and the special inquiry
officers, any physical and mental defect or disease observed by
such medical officers in any such alien. If medical officers of
the United States Public Health Service are not available,
civil surgeons of not less than four years' professional
experience may be employed for such service upon such terms as
may be prescribed by the Attorney General. Aliens (including
alien crewmen) arriving at ports of the United States shall be
examined by at least one such medical officer or civil surgeon
under such administrative regulations as the Attorney General
may prescribe, and under medical regulations prepared by the
Secretary of Health and Human Services. Medical officers of the
United States Public Health Service who have had special
training in the diagnosis of insanity and mental defects shall
be detailed for duty or employed at such ports of entry as the
Attorney General may designate, and such medical officers shall
be provided with suitable facilities for the detention and
examination of all arriving aliens who it is suspected may be
excludable under paragraph (1) of section 212(a), and the
services of interpreters shall be provided for such
examination. Any alien certified under paragraph (1) of section
212(a) may appeal to a board of medical officers of the United
States Public Health Service, which shall be convened by the
Secretary of Health and Human Services, and any such alien may
introduce before such board one expert medical witness at his
own cost and expense.]
[inspection by immigration officers
[Sec. 235. (a) The inspection, other than the physical and
mental examination, of aliens (including alien crewmen) seeking
admission or readmission to, or the privilege of passing
through the United States shall be conducted by immigration
officers, except as otherwise provided in regard to special
inquiry officers. All aliens arriving at ports of the United
States shall be examined by one or more immigration officers at
the discretion of the Attorney General and under such
regulations as he may prescribe. Immigration officers are
hereby authorized and empowered to board and search any vessel,
aircraft, railway car, or other conveyance, or vehicle in which
they believe aliens are being brought into the United States.
The Attorney General and any immigration officer, including
special inquiry officers, shall have power to administer oaths
and to take and consider evidence of or from any person
touching the privilege of any alien or person he believes or
suspects to be an alien to enter, reenter, pass through, or
reside in the United States or concerning any matter which is
material and relevant to the enforcement of this Act and the
administration of the Service, and, where such action may be
necessary, to make a written record of such evidence. Any
person coming into the United States may be required to state
under oath the purpose or purposes for which he comes, the
length of time he intends to remain in the United States,
whether or not he intends to remain in the United States
permanently and, if an alien, whether he intends to become a
citizen thereof, and such other items of information as will
aid the immigration officer in determining whether he is a
national of the United States or an alien and, if the latter,
whether he belongs to any of the excluded classes enumerated in
section 212. The Attorney General and any immigration officer,
including special inquiry officers, shall have power to require
by subpena the attendance and testimony of witnesses before
immigration officers and special inquiry officers and the
production of books, papers, and documents relating to the
privilege of any person to enter, reenter, reside in, or pass
through the United States or concerning any matter which is
material and relevant to the enforcement of this Act and the
administration of the Service, and to that end may invoke the
aid of any court of the United States. Any United States
district court within the jurisdiction of which investigations
or inquiries are being conducted by an immigration officer or
special inquiry officer may, in the event of neglect or refusal
to respond to a subpena issued under this subsection or refusal
to testify before an immigration officer or special inquiry
officer, issue an order requiring such persons to appear before
an immigration officer or special inquiry officer, produce
books, papers, and documents if demanded, and testify, and any
failure to obey such order of the court may be punished by the
court as a contempt thereof.
[(b) Every alien (other than an alien crewman), and except as
otherwise provided in subsection (c) of this section and in
section 273(d), who may not appear to the examining immigration
officer at the port of arrival to be clearly and beyond a doubt
entitled to land shall be detained for further inquiry to be
conducted by a special inquiry officer. The decision of the
examining immigration officer, if favorable to the admission of
any alien, shall be subject to challenge by any other
immigration officer and such challenge shall operate to take
the alien, whose privilege to land is so challenged, before a
special inquiry officer for further inquiry.
[(c) Any alien (including an alien crewman) who may appear to
the examining immigration officer or to the special inquiry
officer during the examination before either of such officers
to be excludable under subparagraph (A) (other than clause
(ii)), (B), or (C) of section 212(a)(3) shall be temporarily
excluded, and no further inquiry by a special inquiry officer
shall be conducted until after the case is reported to the
Attorney General together with any such written statement and
accompanying information, if any, as the alien or his
representative may desire to submit in connection therewith and
such an inquiry or further inquiry is directed by the Attorney
General. If the Attorney General is satisfied that the alien is
excludable under any of such paragraphs on the basis of
information of a confidential nature, the disclosure of which
the Attorney General, in the exercise of his discretion, and
after consultation with the appropriate security agencies of
the Government, concludes would be prejudicial to the public
interest, safety, or security, he may in his discretion order
such alien to be excluded and deported without any inquiry or
further inquiry by a special inquiry officer. Nothing in this
subsection shall be regarded as requiring an inquiry before a
special inquiry officer in the case of an alien crewman.]
inspection by immigration officers; expedited removal of inadmissible
arriving aliens; referral for hearing
Sec. 235. (a) Inspection.--
(1) Aliens treated as applicants for admission.--An
alien present in the United States who has not been
admitted, who arrives in the United States (whether or
not at a designated port of arrival), or who is brought
to the United States after having been interdicted in
international or United States waters shall be deemed
for purposes of this Act an applicant for admission.
(2) Stowaways.--An arriving alien who is a stowaway
is not eligible to apply for admission or to be
admitted and shall be ordered removed upon inspection
by an immigration officer. Upon such inspection if the
alien indicates an intention to apply for asylum under
section 208 or a fear of persecution, the officer shall
refer the alien for an interview under subsection
(b)(1)(B). A stowaway may apply for asylum only if the
stowaway is found to have a credible fear of
persecution under subsection (b)(1)(B). In no case may
a stowaway be considered an applicant for admission or
eligible for a hearing under section 240.
(3) Inspection.--All aliens (including alien crewmen)
who are applicants for admission or otherwise seeking
admission or readmission to or transit through the
United States shall be inspected by immigration
officers.
(4) Withdrawal of application for admission.--An
alien applying for admission may, in the discretion of
the Attorney General and at any time, be permitted to
withdraw the application for admission and depart
immediately from the United States.
(5) Statements.--An applicant for admission may be
required to state under oath any information sought by
an immigration officer regarding the purposes and
intentions of the applicant in seeking admission to the
United States, including the applicant's intended
length of stay and whether the applicant intends to
remain permanently or become a United States citizen,
and whether the applicant is inadmissible.
(b) Inspection of Applicants for Admission.--
(1) Inspection of aliens arriving in the united
states.--
(A) Screening.--If the examining immigration
officer determines that an alien arriving in
the United States (whether or not at a port of
entry) is inadmissible under section
212(a)(6)(C) or 212(a)(7) and the alien--
(i) does not indicate either an
intention to apply for asylum under
section 208 or a fear of persecution,
the officer shall order the alien
removed from the United States without
further hearing or review; or
(ii) indicates an intention to apply
for asylum under section 208 or a fear
of persecution, the officer shall refer
the alien for an interview by an asylum
officer under subparagraph (B).
(B) Asylum interviews.--
(i) Conduct by asylum officers.--An
asylum officer shall promptly conduct
interviews of aliens referred under
subparagraph (A)(ii).
(ii) Referral of certain aliens.--If
the officer determines at the time of
the interview that an alien has a
credible fear of persecution (within
the meaning of clause (v)), the alien
shall be detained for further
consideration of the application for
asylum.
(iii) Removal without further review
if no credible fear of persecution.--
(I) In general.--Subject to
subclause (II), if the officer
determines that an alien does
not have a credible fear of
persecution, the officer shall
order the alien removed from
the United States without
further hearing or review.
(II) Review of determination
by supervisory officer.--The
Attorney General shall
promulgate regulations to
provide for the immediate
review by a supervisory asylum
officer at the port of entry of
a determination under subclause
(I).
(iv) Information about interviews.--
The Attorney General shall provide
information concerning the asylum
interview described in this
subparagraph to aliens who may be
eligible. An alien who is eligible for
such interview may consult with a
person or persons of the alien's
choosing prior to the interview or any
review thereof, according to
regulations prescribed by the Attorney
General. Such consultation shall be at
no expense to the Government and shall
not delay the process.
(v) Credible fear of persecution
defined.--For purposes of this
subparagraph, the term ``credible fear
of persecution'' means (I) that it is
more probable than not that the
statements made by the alien in support
of the alien's claim are true, and (II)
that there is a significant
possibility, in light of such
statements and of such other facts as
are known to the officer, that the
alien could establish eligibility for
asylum under section 208.
(C) Limitation on administrative review.--A
removal order entered in accordance with
subparagraph (A)(i) or (B)(iii)(I) is not
subject to administrative appeal, except that
the Attorney General shall provide by
regulation for prompt review of such an order
under subparagraph (A)(i) against an alien who
claims under oath, or as permitted under
penalty of perjury under section 1746 of title
28, United States Code, after having been
warned of the penalties for falsely making such
claim under such conditions, to have been
lawfully admitted for permanent residence.
(D) Limit on collateral attacks.--In any
action brought against an alien under section
275(a) or section 276, the court shall not have
jurisdiction to hear any claim attacking the
validity of an order of removal entered under
subparagraph (A)(i) or (B)(iii)(I).
(E) Asylum officer defined.--As used in this
paragraph, the term ``asylum officer'' means an
immigration officer who--
(i) has had professional training in
country conditions, asylum law, and
interview techniques, and
(ii) is supervised by an officer who
meets the condition described in clause
(i).
(2) Inspection of other aliens.--
(A) In general.--Subject to subparagraph (B),
in the case of an alien who is an applicant for
admission, if the examining immigration officer
determines that an alien seeking admission is
not clearly and beyond a doubt entitled to be
admitted, the alien shall be detained for a
hearing under section 240.
(B) Exception.--Subparagraph (A) shall not
apply to an alien--
(i) who is a crewman,
(ii) to whom paragraph (1) applies,
or
(iii) who is a stowaway.
(3) Challenge of decision.--The decision of the
examining immigration officer, if favorable to the
admission of any alien, shall be subject to challenge
by any other immigration officer and such challenge
shall operate to take the alien whose privilege to be
admitted is so challenged, before an immigration judge
for a hearing under section 240.
(c) Removal of Aliens Inadmissible on Security and Related
Grounds.--
(1) Removal without further hearing.--If an
immigration officer or an immigration judge suspects
that an arriving alien may be inadmissible under
subparagraph (A) (other than clause (ii)), (B), or (C)
of section 212(a)(3), the officer or judge shall--
(A) order the alien removed, subject to
review under paragraph (2);
(B) report the order of removal to the
Attorney General; and
(C) not conduct any further inquiry or
hearing until ordered by the Attorney General.
(2) Review of order.--(A) The Attorney General shall
review orders issued under paragraph (1).
(B) If the Attorney General--
(i) is satisfied on the basis of confidential
information that the alien is inadmissible
under subparagraph (A) (other than clause
(ii)), (B), or (C) of section 212(a)(3), and
(ii) after consulting with appropriate
security agencies of the United States
Government, concludes that disclosure of the
information would be prejudicial to the public
interest, safety, or security,
the Attorney General may order the alien removed
without further inquiry or hearing by an immigration
judge.
(C) If the Attorney General does not order the
removal of the alien under subparagraph (B), the
Attorney General shall specify the further inquiry or
hearing that shall be conducted in the case.
(3) Submission of statement and information.--The
alien or the alien's representative may submit a
written statement and additional information for
consideration by the Attorney General.
(d) Authority Relating to Inspections.--
(1) Authority to search conveyances.--Immigration
officers are authorized to board and search any vessel,
aircraft, railway car, or other conveyance or vehicle
in which they believe aliens are being brought into the
United States.
(2) Authority to order detention and delivery of
arriving aliens.--Immigration officers are authorized
to order an owner, agent, master, commanding officer,
person in charge, purser, or consignee of a vessel or
aircraft bringing an alien (except an alien crewmember)
to the United States--
(A) to detain the alien on the vessel or at
the airport of arrival, and
(B) to deliver the alien to an immigration
officer for inspection or to a medical officer
for examination.
(3) Administration of oath and consideration of
evidence.--The Attorney General and any immigration
officer shall have power to administer oaths and to
take and consider evidence of or from any person
touching the privilege of any alien or person he
believes or suspects to be an alien to enter, reenter,
transit through, or reside in the United States or
concerning any matter which is material and relevant to
the enforcement of this Act and the administration of
the Service.
(4) Subpoena authority.--(A) The Attorney General and
any immigration officer shall have power to require by
subpoena the attendance and testimony of witnesses
before immigration officers and the production of
books, papers, and documents relating to the privilege
of any person to enter, reenter, reside in, or pass
through the United States or concerning any matter
which is material and relevant to the enforcement of
this Act and the administration of the Service, and to
that end may invoke the aid of any court of the United
States.
(B) Any United States district court within the
jurisdiction of which investigations or inquiries are
being conducted by an immigration officer may, in the
event of neglect or refusal to respond to a subpoena
issued under this paragraph or refusal to testify
before an immigration officer, issue an order requiring
such persons to appear before an immigration officer,
produce books, papers, and documents if demanded, and
testify, and any failure to obey such order of the
court may be punished by the court as a contempt
thereof.
preinspection at foreign airports
Sec. 235A. (a) Establishment of Preinspection Stations.--(1)
Subject to paragraph (4), not later than 2 years after the date
of the enactment of this section, the Attorney General, in
consultation with the Secretary of State, shall establish and
maintain preinspection stations in at least 5 of the foreign
airports that are among the 10 foreign airports which the
Attorney General identifies as serving as last points of
departure for the greatest numbers of passengers who arrive
from abroad by air at ports of entry within the United States.
Such preinspection stations shall be in addition to any
preinspection stations established prior to the date of the
enactment of this section.
(2) Not later than November 1, 1995, and each subsequent
November 1, the Attorney General shall compile data
identifying--
(A) the foreign airports which served as last points
of departure for aliens who arrived by air at United
States ports of entry without valid documentation
during the preceding fiscal years,
(B) the number and nationality of such aliens
arriving from each such foreign airport, and
(C) the primary routes such aliens followed from
their country of origin to the United States.
(3) Subject to paragraph (4), not later than 4 years after
the date of enactment of this section, the Attorney General, in
consultation with the Secretary of State, shall establish
preinspection stations in at least 5 additional foreign
airports which the Attorney General, in consultation with the
Secretary of State, determines based on the data compiled under
paragraph (2) and such other information as may be available
would most effectively reduce the number of aliens who arrive
from abroad by air at points of entry within the United States
without valid documentation. Such preinspection stations shall
be in addition to those established prior to or pursuant to
paragraph (1).
(4) Prior to the establishment of a preinspection station the
Attorney General, in consultation with the Secretary of State,
shall ensure that--
(A) employees of the United States stationed at the
preinspection station and their accompanying family
members will receive appropriate protection,
(B) such employees and their families will not be
subject to unreasonable risks to their welfare and
safety, and
(C) the country in which the preinspection station is
to be established maintains practices and procedures
with respect to asylum seekers and refugees in
accordance with the Convention Relating to the Status
of Refugees (done at Geneva, July 28, 1951), or the
Protocol Relating to the Status of Refugees (done at
New York, January 31, 1967).
(b) Establishment of Carrier Consultant Program.--The
Attorney General shall assign additional immigration officers
to assist air carriers in the detection of fraudulent documents
at foreign airports which, based on the records maintained
pursuant to subsection (a)(2), served as a point of departure
for a significant number of arrivals at United States ports of
entry without valid documentation, but where no preinspection
station exists.
[exclusions of aliens
[Sec. 236. (a) A special inquiry officer shall conduct
proceedings under this section, administer oaths, present and
receive evidence, and interrogate, examine, and cross-examine
the alien or witnesses. He shall have authority in any case to
determine whether an arriving alien who has been detained for
further inquiry under section 235 shall be allowed to enter or
shall be excluded and deported. The determination of such
special inquiry officer shall be based only on the evidence
produced at the inquiry. No special inquiry officer shall
conduct a proceeding in any case under this section in which he
shall have participated in investigative functions or in which
he shall have participated (except as provided in this
subsection) in prosecuting functions. Proceedings before a
special inquiry officer under this section shall be conducted
in accordance with this section, the applicable provisions of
sections 235 and 287(b), and such regulations as the Attorney
General shall prescribe, and shall be the sole and exclusive
procedure for determining admissibility of a person to the
United States under the provisions of this section. At such
inquiry, which shall be kept separate and apart from the
public, the alien may have one friend or relative present,
under such conditions as may be prescribed by the Attorney
General. A complete record of the proceedings and of all
testimony and evidence produced at such inquiry, shall be kept.
[(b) From a decision of a special inquiry officer excluding
an alien, such alien may take a timely appeal to the Attorney
General, and any such alien shall be advised of his right to
take such appeal. No appeal may be taken from a temporary
exclusion under section 235(c). From a decision of the special
inquiry officer to admit an alien, the immigration officer in
charge at the port where the inquiry is held may take a timely
appeal to the Attorney General. An appeal by the alien, or such
officer in charge, shall operate to stay any final action with
respect to any alien whose case is so appealed until the final
decision of the Attorney General is made. Except as provided in
section 235(c) such decision shall be rendered solely upon the
evidence adduced before the special inquiry officer.
[(c) Except as provided in subsections (b) or (d), in every
case where an alien is excluded from admission into the United
States, under this Act or any other law or treaty now existing
or hereafter made, the decision of a special inquiry officer
shall be final unless reversed on appeal to the Attorney
General.
[(d) If a medical officer or civil surgeon or board of
medical officers has certified under section 234 that an alien
has a disease, illness, or addiction which would make the alien
excludable under paragraph (1) of section 212(a), the decision
of the special inquiry officer shall be based solely upon such
certification. No alien shall have a right to appeal from such
an excluding decision of a special inquiry officer.
[(e)(1) Pending a determination of excludability, the
Attorney General shall take into custody any alien convicted of
an aggravated felony upon release of the alien (regardless of
whether or not such release is on parole, supervised release,
or probation, and regardless of the possibility of rearrest or
further confinement in respect of the same offense).
[(2) Notwithstanding any other provision of this section, the
Attorney General shall not release such felon from custody
unless the Attorney General determines that the alien may not
be deported because the condition described in section 243(g)
exists.
[(3) If the determination described in paragraph (2) has been
made, the Attorney General may release such alien only after--
[(A) a procedure for review of each request for
relief under this subsection has been established,
[(B) such procedure includes consideration of the
severity of the felony committed by the alien, and
[(C) the review concludes that the alien will not
pose a danger to the safety of other persons or to
property.]
apprehension and detention of aliens not lawfully in the united states
Sec. 236. (a) Arrest, Detention, and Release.--On a warrant
issued by the Attorney General, an alien may be arrested and
detained pending a decision on whether the alien is to be
removed from the United States. Except as provided in
subsection (c) and pending such decision, the Attorney
General--
(1) may continue to detain the arrested alien; and
(2) may release the alien on--
(A) bond of at least $1,500 with security
approved by, and containing conditions
prescribed by, the Attorney General; or
(B) conditional parole; but
(3) may not provide the alien with work authorization
(including an ``employment authorized'' endorsement or
other appropriate work permit), unless the alien is
lawfully admitted for permanent residence or otherwise
would (without regard to removal proceedings) be
provided such authorization.
(b) Revocation of Bond or Parole.--The Attorney General at
any time may revoke a bond or parole authorized under
subsection (a), rearrest the alien under the original warrant,
and detain the alien.
(c) Aliens Convicted of Aggravated Felonies.--
(1) Custody.--The Attorney General shall take into
custody any alien convicted of an aggravated felony
when the alien is released, without regard to whether
the alien is released on parole, supervised release, or
probation, and without regard to whether the alien may
be arrested or imprisoned again for the same offense.
(2) Release.--The Attorney General may release the
alien only if--
(A) the alien was lawfully admitted to the
United States and satisfies the Attorney
General that the alien will not pose a danger
to the safety of other persons or of property
and is likely to appear for any scheduled
proceeding;
(B) the alien was not lawfully admitted to
the United States, cannot be removed because
the designated country of removal will not
accept the alien, and satisfies the Attorney
General that the alien will not pose a danger
to the safety of other persons or of property
and is likely to appear for any scheduled
proceeding; or
(C) the Attorney General decides pursuant to
section 3521 of title 18, United States Code,
that release of the alien from custody is
necessary to provide protection to a witness, a
potential witness, a person cooperating with an
investigation into major criminal activity, or
an immediate family member or close associate
of a witness, potential witness, or person
cooperating with such an investigation.
A decision relating to such release shall take place in
accordance with a procedure that considers the severity
of the offense committed by the alien.
(d) Identification of Aliens Convicted of Aggravated
Felonies.--(1) The Attorney General shall devise and implement
a system--
(A) to make available, daily (on a 24-hour basis), to
Federal, State, and local authorities the investigative
resources of the Service to determine whether
individuals arrested by such authorities for aggravated
felonies are aliens;
(B) to designate and train officers and employees of
the Service to serve as a liaison to Federal, State,
and local law enforcement and correctional agencies and
courts with respect to the arrest, conviction, and
release of any alien charged with an aggravated felony;
and
(C) which uses computer resources to maintain a
current record of aliens who have been convicted of an
aggravated felony and who have been removed.
(2) The record under paragraph (1)(C) shall be made
available--
(A) to inspectors at ports of entry and to border
patrol agents at sector headquarters for purposes of
immediate identification of any such previously removed
alien seeking to reenter the United States, and
(B) to officials of the Department of State for use
in its automated visa lookout system.
general classes of deportable aliens
Sec. [241.] 237. (a) Classes of Deportable Aliens.--Any
alien (including an alien crewman) [in the United States] in
and admitted to the United States shall, upon the order of the
Attorney General, be [deported] removed if the alien is within
one or more of the following classes of deportable aliens:
(1) [Excludable] Inadmissible at time of entry or of
adjustment of status or violates status.--
(A) [Excludable] Inadmissible aliens.--Any
alien who at the time of entry or adjustment of
status was within one or more of the classes of
aliens [excludable] inadmissible by the law
existing at such time is deportable.
[(B) Entered without inspection.--Any alien
who entered the United States without
inspection or at any time or place other than
as designated by the Attorney General or is in
the United States in violation of this Act or
any other law of the United States is
deportable.]
(B) Present in violation of law.--Any alien
who is present in the United States in
violation of this Act or any other law of the
United States is deportable.
* * * * * * *
(E) Smuggling.--
(i) In general.--Any alien who (prior
to the date of entry, at the time of
any entry, or within 5 years of the
date of any entry) knowingly has
encouraged, induced, assisted, abetted,
or aided any other alien to enter or to
try to enter the United States in
violation of law is deportable.
(ii) Special rule in the case of
family reunification.--Clause (i) shall
not apply in the case of alien who is
an eligible immigrant (as defined in
section 301(b)(1) of the Immigration
Act of 1990), was physically present in
the United States on May 5, 1988, and
is seeking admission as [an immediate
relative] a spouse, child, or parent of
a citizen of the United States or under
section [203(a)(2)] 203(a)(1)
(including under section 112 of the
Immigration Act of 1990) or benefits
under section 301(a) of the Immigration
Act of 1990 if the alien, before May 5,
1988, has encouraged, induced,
assisted, abetted, or aided only the
alien's spouse, parent, son, or
daughter (and no other individual) to
enter the United States in violation of
law.
(iii) Waiver authorized.--The
Attorney General may, in his discretion
for humanitarian purposes, to assure
family unity, or when it is otherwise
in the public interest, waive
application of clause (i) in the case
of any alien lawfully admitted for
permanent residence if the alien has
encouraged, induced, assisted, abetted,
or aided only the alien's spouse,
parent, son, or daughter (and no other
individual) to enter the United States
in violation of law.
[(F) Failure to maintain employment.--Any
alien who obtains the status of an alien
lawfully admitted for temporary residence under
section 210A who fails to meet the requirement
of section 210A(d)(5)(A) by the end of the
applicable period is deportable.]
(G) Marriage 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 [entry]
admission into the United States with
an immigrant visa or other
documentation procured on the basis of
a marriage entered into less than 2
years prior to such [entry] admission
of the alien and which, within 2 years
subsequent to any [entry] admission of
the alien in the United States, shall
be judicially annulled or terminated,
unless the alien establishes to the
satisfaction of the Attorney General
that such marriage was not contracted
for the purpose of evading any
provisions of the immigration laws, or
(ii) it appears to the satisfaction
of the Attorney General that the alien
has failed or refused to fulfill the
alien's marital agreement which in the
opinion of the Attorney General was
made for the purpose of procuring the
alien's [entry] admission as an
immigrant.
(H) Waiver authorized for certain
misrepresentations.--The provisions of this
paragraph relating to the [deportation] removal
of aliens within the United States on the
ground that they were [excludable] inadmissible
at the time of [entry] admission as aliens
described in section 212(a)(6)(C)(i), whether
willful or innocent, may, in the discretion of
the Attorney General, be waived for any alien
(other than an alien described in paragraph
(4)(D)) who--
(i) is the spouse, parent, son, or
daughter of a citizen of the United
States or of an alien lawfully admitted
to the United States for permanent
residence; and
(ii) was in possession of an
immigrant visa or equivalent document
and was otherwise admissible to the
United States at the time of such
[entry] admission except for those
grounds of inadmissibility specified
under paragraphs (5)(A) and (7)(A) of
section 212(a) which were a direct
result of that fraud or
misrepresentation.
A waiver of [deportation] removal for fraud or
misrepresentation granted under this
subparagraph shall also operate to waive
[deportation] removal based on the grounds of
inadmissibility [at entry] directly resulting
from such fraud or misrepresentation.
(2) Criminal offenses.--
(A) General crimes.--
(i) Crimes of moral turpitude.--Any
alien who--
(I) is convicted of a crime
involving moral turpitude
committed within five years (or
10 years in the case of an
alien provided lawful permanent
resident status under section
[245(i)] 245(j)) after the date
of [entry] admission, and
(II) either is sentenced to
confinement or is confined
therefor in a prison or
correctional institution for
one year or longer,
is deportable.
(ii) Multiple criminal convictions.--
Any alien who at any time after [entry]
admission is convicted of two or more
crimes involving moral turpitude, not
arising out of a single scheme of
criminal misconduct, regardless of
whether confined therefor and
regardless of whether the convictions
were in a single trial, is deportable.
(iii) Aggravated felony.--Any alien
who is convicted of an aggravated
felony at any time after [entry]
admission is deportable.
(iv) Waiver authorized.--Clauses (i),
(ii), and (iii) shall not apply in the
case of an alien with respect to a
criminal conviction if the alien
subsequent to the criminal conviction
has been granted a full and
unconditional pardon by the President
of the United States or by the Governor
of any of the several States.
(B) Controlled substances.--
(i) Conviction.--Any alien who at any
time after [entry] admission has been
convicted of a violation of (or a
conspiracy or attempt to violate) any
law or regulation of a State, the
United States, or a foreign country
relating to a controlled substance (as
defined in section 102 of the
Controlled Substances Act (21 U.S.C.
802)), other than a single offense
involving possession for one's own use
of 30 grams or less of marijuana, is
deportable.
(ii) Drug abusers and addicts.--Any
alien who is, or at any time after
[entry] admission has been, a drug
abuser or addict is deportable.
(C) Certain firearm offenses.--Any alien who
at any time after [entry] admission is
convicted under any law of purchasing, selling,
offering for sale, exchanging, using, owning,
possessing, or carrying, or of attempting or
conspiring to purchase, sell, offer for sale,
exchange, use, own, possess, or carry, any
weapon, part, or accessory which is a firearm
or destructive device (as defined in section
921(a) of title 18, United States Code) in
violation of any law is deportable.
(D) Miscellaneous crimes.--Any alien who at
any time has been convicted (the judgment on
such conviction becoming final) of, or has been
so convicted of a conspiracy or attempt to
violate--
(i) any offense under chapter 37
(relating to espionage), chapter 105
(relating to sabotage), or chapter 115
(relating to treason and sedition) of
title 18, United States Code, for which
a term of imprisonment of five or more
years may be imposed;
(ii) any offense under section 871 or
960 of title 18, United States Code;
(iii) a violation of any provision of
the Military Selective Service Act (50
U.S.C. App. 451 et seq.) or the Trading
With the Enemy Act (50 U.S.C. App. 1 et
seq.); or
(iv) a violation of section 215 or
278 of this Act,
is deportable.
(3) Failure to register and falsification of
documents.--
(A) Change of address.--An alien who has
failed to comply with the provisions of section
265 is deportable, unless the alien establishes
to the satisfaction of the Attorney General
that such failure was reasonably excusable or
was not willful.
(B) Failure to register or falsification of
documents.--Any alien who at any time has been
convicted--
(i) under section 266(c) of this Act
or under section 36(c) of the Alien
Registration Act, 1940,
(ii) of a violation of, or an attempt
or a conspiracy to violate, any
provision of the Foreign Agents
Registration Act of 1938 (22 U.S.C. 611
et seq.), or
(iii) of a violation of, or an
attempt or a conspiracy to violate,
section 1546 of title 18, United States
Code (relating to fraud and misuse of
visas, permits, and other entry
documents),
is deportable.
[(C) Document fraud.--Any alien who is the
subject of a final order for violation of
section 274C is deportable.]
(C) Document fraud.--
(i) In general.--An alien who is the
subject of a final order for violation
of section 274C is deportable.
(ii) Waiver authorized.--The Attorney
General may waive clause (i) in the
case of an alien lawfully admitted for
permanent residence if the alien's
civil money penalty under section 274C
was incurred solely to assist, aid, or
support the alien's spouse, parent,
son, or daughter (and no other
individual).
(4) Security and related grounds.--
(A) In general.--Any alien who has engaged,
is engaged, or at any time after [entry]
admission engages in--
(i) any activity to violate any law
of the United States relating to
espionage or sabotage or to violate or
evade any law prohibiting the export
from the United States of goods,
technology, or sensitive information,
(ii) any other criminal activity
which endangers public safety or
national security, or
(iii) any activity a purpose of which
is the opposition to, or the control or
overthrow of, the Government of the
United States by force, violence, or
other unlawful means,
is deportable.
(B) Terrorist activities.--Any alien who has
engaged, is engaged, or at any time after
[entry] admission engages in any terrorist
activity (as defined in section
212(a)(3)(B)(iii)) is deportable.
(C) Foreign policy.--
(i) In general.--An alien whose
presence or activities in the United
States the Secretary of State has
reasonable ground to believe would have
potentially serious adverse foreign
policy consequences for the United
States is deportable.
(ii) Exceptions.--The exceptions
described in clauses (ii) and (iii) of
section 212(a)(3)(C) shall apply to
deportability under clause (i) in the
same manner as they apply to
[excludability] inadmissibility under
section 212(a)(3)(C)(i).
(D) Assisted in nazi persecution or engaged
in genocide.--Any alien described in clause (i)
or (ii) of section 212(a)(3)(E) is deportable.
[(5) Public charge.--Any alien who, within five years
after the date of entry, has become a public charge
from causes not affirmatively shown to have arisen
since entry is deportable.]
(5) Public charge.--
(A) In general.--Any alien who, within 7
years after the date of entry or admission,
becomes a public charge is deportable.
(B) Exceptions.--(i) Subparagraph (A) shall
not apply if the alien establishes that the
alien has become a public charge from causes
that arose after entry or admission. A
condition that the alien knew (or had reason to
know) existed at the time of entry or admission
shall be deemed to be a cause that arose before
entry or admission.
(ii) The Attorney General, in the discretion
of the Attorney General, may waive the
application of subparagraph (A) in the case of
an alien who is admitted as a refugee under
section 207 or granted asylum under section
208.
(C) Individuals treated as public charge.--
(i) In general.--For purposes of this
title, an alien is deemed to be a
``public charge'' if the alien receives
benefits (other than benefits described
in subparagraph (E)) under one or more
of the public assistance programs
described in subparagraph (D) for an
aggregate period, except as provided in
clauses (ii) and (iii), of at least 12
months within 7 years after the date of
entry. The previous sentence shall not
be construed as excluding any other
bases for considering an alien to be a
public charge, including bases in
effect on the day before the date of
the enactment of the Immigration in the
National Interest Act of 1995. The
Attorney General, in consultation with
the Secretary of Health and Human
Services, shall establish rules
regarding the counting of health
benefits described in subparagraph
(D)(iv) for purposes of this
subparagraph.
(ii) Determination with respect to
battered women and children.--For
purposes of a determination under
clause (i) and except as provided in
clause (iii), the aggregate period
shall be 48 months within 7 years after
the date of entry if the alien can
demonstrate that (I) the alien has been
battered or subject to extreme cruelty
in the United States by a spouse or
parent, or by a member of the spouse or
parent's family residing in the same
household as the alien and the spouse
or parent consented or acquiesced to
such battery or cruelty, or (II) the
alien's child has been battered or
subject to extreme cruelty in the
United States by a spouse or parent of
the alien (without the active
participation of the alien in the
battery or extreme cruelty), or by a
member of the spouse or parent's family
residing in the same household as the
alien when the spouse or parent
consented or acquiesced to and the
alien did not actively participate in
such battery or cruelty, and the need
for the public benefits received has a
substantial connection to the battery
or cruelty described in subclause (I)
or (II).
(iii) Special rule for ongoing
battery or cruelty.--For purposes of a
determination under clause (i), the
aggregate period may exceed 48 months
within 7 years after the date of entry
if the alien can demonstrate that any
battery or cruelty under clause (ii) is
ongoing, has led to the issuance of an
order of a judge or an administrative
law judge or a prior determination of
the Service, and that the need for the
benefits received has a substantial
connection to such battery or cruelty.
(D) Public assistance programs.--For purposes
of subparagraph (B), the public assistance
programs described in this subparagraph are the
following (and include any successor to such a
program as identified by the Attorney General
in consultation with other appropriate
officials):
(i) SSI.--The supplemental security
income program under title XVI of the
Social Security Act, including State
supplementary benefits programs
referred to in such title.
(ii) AFDC.--The program of aid to
families with dependent children under
part A or E of title IV of the Social
Security Act.
(iii) Medicaid.--The program of
medical assistance under title XIX of
the Social Security Act.
(iv) Food stamps.--The program under
the Food Stamp Act of 1977.
(v) State general cash assistance.--A
program of general cash assistance of
any State or political subdivision of a
State.
(vi) Housing assistance.--Financial
assistance as defined in section 214(b)
of the Housing and Community
Development Act of 1980.
(E) Certain assistance excepted.--For
purposes of subparagraph (B), an alien shall
not be considered to be a public charge on the
basis of receipt of any of the following
benefits:
(i) Emergency medical services.--The
provision of emergency medical services
(as defined by the Attorney General in
consultation with the Secretary of
Health and Human Services).
(ii) Public health immunizations.--
Public health assistance for
immunizations with respect to
immunizable diseases and for testing
and treatment for communicable
diseases.
(iii) Short-term emergency relief.--
The provision of non-cash, in-kind,
short-term emergency relief.
* * * * * * *
(c) Paragraphs (1)(A), (1)(B), (1)(C), (1)(D), and (3)(A) of
subsection (a) (other than so much of paragraph (1) as relates
to a ground of [exclusion] inadmissibility described in
paragraph (2) or (3) of section 212(a)) shall not apply to a
special immigrant described in section 101(a)(27)(J) based upon
circumstances that existed before the date the alien was
provided such special immigrant status.
[immediate deportation of aliens excluded from admission or entering in
violation of law
[Sec. 237. (a)(1) Any alien (other than an alien crewman)
arriving in the United States who is excluded under this Act,
shall be immediately deported, in accommodations of the same
class in which he arrived, unless the Attorney General, in an
individual case, in his discretion, concludes that immediate
deportation is not practicable or proper. Deportation shall be
to the country in which the alien boarded the vessel or
aircraft on which he arrived in the United States, unless the
alien boarded such vessel or aircraft in foreign territory
contiguous to the United States or in any island adjacent
thereto or adjacent to the United States and the alien is not a
native, citizen, subject, or national of, or does not have a
residence in, such foreign contiguous territory or adjacent
island, in which case the deportation shall instead be to the
country in which is located the port at which the alien
embarked for such foreign contiguous territory or adjacent
island. The cost of the maintenance including detention
expenses and expenses incident to detention of any such alien
while he is being detained, shall be borne by the owner or
owners of the vessel or aircraft on which he arrived, except
that the cost of maintenance (including detention expenses and
expenses incident to detention while the alien is being
detained prior to the time he is offered for deportation to the
transportation line which brought him to the United States)
shall not be assessed against the owner or owners of such
vessel or aircraft if (A) the alien was in possession of a
valid, unexpired immigrant visa, or (B) the alien (other than
an alien crewman) was in possession of a valid, unexpired
nonimmigrant visa or other document authorizing such alien to
apply for temporary admission to the United States or an
unexpired reentry permit issued to him, and (i) such
application was made within one hundred and twenty days of the
date of issuance of the visa or other document, or in the case
of an alien in possession of a reentry permit, within one
hundred and twenty days of the date on which the alien was last
examined and admitted by the Service, or (ii) in the event the
application was made later than one hundred and twenty days of
the date of issuance of the visa or other document or such
examination and admission, if the owner or owners of such
vessel or aircraft established to the satisfaction of the
Attorney General that the ground of exclusion could not have
been ascertained by the exercise of due diligence prior to the
alien's embarkation, or (C) the person claimed United States
nationality or citizenship and was in possession of an
unexpired United States passport issued to him by competent
authority.
[(2) If the government of the country designated in paragraph
(1) will not accept the alien into its territory, the alien's
deportation shall be directed by the Attorney General, in his
discretion and without necessarily giving any priority or
preference because of their order as herein set forth, either
to--
[(A) the country of which the alien is a subject,
citizen, or national;
[(B) the country in which he was born;
[(C) the country in which he has a residence; or
[(D) any country which is willing to accept the alien
into its territory, if deportation to any of the
foregoing countries is impracticable, inadvisable, or
impossible.
[(b) It shall be unlawful for any master, commanding officer,
purser, person in charge, agent, owner, or consignee of any
vessel or aircraft (1) to refuse to receive any alien (other
than an alien crewman), ordered deported under this section
back on board such vessel or aircraft or another vessel or
aircraft owned or operated by the same interests; (2) to fail
to detain any alien (other than an alien crewman) on board any
such vessel or at the airport of arrival of the aircraft when
required by this Act or if so ordered by an immigration
officer, or to fail or refuse to deliver him for medical or
other inspection, or for further medical or other inspection,
as and when so ordered by such officer; (3) to refuse or fail
to remove him from the United States to the country to which
his deportation has been directed; (4) to fail to pay the cost
of his maintenance while being detained as required by this
section; (5) to take any fee, deposit, or consideration on a
contingent basis to be kept or returned in case the alien is
landed or excluded; or (6) knowingly to bring to the United
States any alien (other than an alien crewman) excluded or
arrested and deported under any provision of law until such
alien may be lawfully entitled to reapply for admission to the
United States. If it shall appear to the satisfaction of the
Attorney General that any such master, commanding officer,
purser, person in charge, agent, owner, or consignee of any
vessel or aircraft has violated any of the provisions of this
section, such master, commanding officer, purser, person in
charge, agent, owner, or consignee shall pay to the
Commissioner the sum of $2,000 for each violation. No such
vessel or aircraft shall have clearance from any port of the
United States while any such fine is unpaid or while the
question of liability to pay any such fine is being determined,
nor shall any such fine be remitted or refunded, except that
clearance may be granted prior to the determination of such
question upon the deposit with the Commissioner of a bond or
undertaking approved by the Attorney General or a sum
sufficient to cover such fine.
[(c) An alien shall be deported on a vessel or aircraft owned
by the same person who owns the vessel or aircraft on which the
alien arrived in the United States, unless it is impracticable
to so deport the alien within a reasonable time. The
transportation expense of the alien's deportation shall be
borne by the owner or owners of the vessel or aircraft on which
the alien arrived. If the deportation is effected on a vessel
or aircraft not owned by such owner or owners, the
transportation expense of the alien's deportation may be paid
from the appropriation for the enforcement of this Act and
recovered by civil suit from any owner, agent, or consignee of
the vessel or aircraft on which the alien arrived.
[(d) The Attorney General, under such conditions as are by
regulations prescribed, may stay the deportation of any alien
deportable under this section, if in his judgment the testimony
of such alien is necessary on behalf of the United States in
the prosecution of offenders against any provision of this Act
or other laws of the United States. The cost of maintenance of
any person so detained resulting from a stay of deportation
under this subsection and a witness fee in the sum of $1 per
day for each day such person is so detained may be paid from
the appropriation for the enforcement of this title. Such alien
may be released under bond in the penalty of not less than $500
with security approved by the Attorney General on condition
that such alien shall be produced when required as a witness
and for deportation, and on such other conditions as the
Attorney General may prescribe.
[(e) Upon the certificate of an examining medical officer to
the effect that an alien ordered to be excluded and deported
under this section is helpless from sickness or mental and
physical disability, or infancy, if such alien is accompanied
by another alien whose protection or guardianship is required
by the alien ordered excluded and deported, such accompanying
alien may also be excluded and deported, and the master,
commanding officer, agent, owner, or consignee of the vessel or
aircraft in which such alien and accompanying alien arrived in
the United States shall be required to return the accompanying
alien in the same manner as other aliens denied admission and
ordered deported under this section.]
expedited [deportation] removal of aliens convicted of committing
aggravated felonies
Sec. [242A.] 238. (a) [Deportation] Removal of Criminal
Aliens.--
(1) in general.--The Attorney General shall provide
for the availability of special [deportation] removal
proceedings at certain Federal, State, and local
correctional facilities for aliens convicted of
aggravated felonies (as defined in section 101(a)(43)).
Such proceedings shall be conducted in conformity with
section [242] 240 (except as otherwise provided in this
section), and in a manner which eliminates the need for
additional detention at any processing center of the
Service and in a manner which assures expeditious
[deportation] removal, where warranted, following the
end of the alien's incarceration for the underlying
sentence. Nothing in this section 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.
(2) Implementation.--With respect to an alien convicted of an
aggravated felony who is taken into custody by the Attorney
General pursuant to section [242(a)(2)] 236(c), the Attorney
General shall, to the maximum extent practicable, detain any
such felon at a facility at which other such aliens are
detained. In the selection of such facility, the Attorney
General shall make reasonable efforts to ensure that the
alien's access to counsel and right to counsel under section
292 are not impaired.
(3) expedited proceedings.--(A) Notwithstanding any other
provision of law, the Attorney General shall provide for the
initiation and, to the extent possible, the completion of
[deportation] removal proceedings, and any administrative
appeals thereof, in the case of any alien convicted of an
aggravated felony before the alien's release from incarceration
for the underlying aggravated felony.
(B) Nothing in this section shall be construed as requiring
the Attorney General to effect the [deportation] removal of any
alien sentenced to actual incarceration, before release from
the penitentiary or correctional institution where such alien
is confined.
(4) review.--(A) The Attorney General shall review and
evaluate [deportation] removal proceedings conducted under this
section. Within 12 months after the effective date of this
section, the Attorney General shall submit a report to the
Committees on the Judiciary of the House of Representatives and
of the Senate concerning the effectiveness of such
[deportation] removal proceedings in facilitating the
[deportation] removal of aliens convicted of aggravated
felonies.
(B) The Comptroller General shall monitor, review, and
evaluate [deportation] removal proceedings conducted under this
section.
(b) [Deportation] Removal of Aliens Who Are Not Permanent
Residents.--
(1) The Attorney General may, in the case of an alien
described in paragraph (2), determine the deportability
of such alien under section [241(a)(2)(A)(iii)]
237(a)(2)(A)(iii) (relating to conviction of an
aggravated felony) and issue an order of [deportation]
removal pursuant to the procedures set forth in this
subsection or section [242(b)] 240.
(2) An alien is described in this paragraph if the
alien--
(A) was not lawfully admitted for permanent
residence at the time at which proceedings
under this section commenced; and
(B) is not eligible for any relief from
[deportation] removal under this Act.
(3) The Attorney General may not execute any order
described in paragraph (1) until 30 calendar days have
passed from the date that such order was issued, unless
waived by the alien, in order that the alien has an
opportunity to apply for judicial review under section
[106] 242.
(4) Proceedings before the Attorney General under
this subsection shall be in accordance with such
regulations as the Attorney General shall prescribe.
The Attorney General shall provide that--
(A) the alien is given reasonable notice of
the charges and of the opportunity described in
subparagraph (C);
(B) the alien shall have the privilege of
being represented (at no expense to the
government) by such counsel, authorized to
practice in such proccedings, as the alien
shall choose;
(C) the alien has a reasonable opportunity to
inspect the evidence and rebut the charges;
(D) a record is maintained for judicial
review; and
(E) the final order of [deportation] removal
is not adjudicated by the same person who
issues the charges.
[(d)] (c) Judicial [Deportation] Removal.--
(1) Authority.--Notwithstanding any other provision
of this Act, a United States district court shall have
jurisdiction to enter a judicial order of [deportation]
removal at the time of sentencing against an alien
whose criminal conviction causes such alien to be
deportable under section 241(a)(2)(A), if such an order
has been requested by the United States Attorney with
the concurrence of the Commissioner and if the court
chooses to exercise such jurisdiction.
(2) Procedure.--
(A) The United States Attorney shall file
with the United States district court, and
serve upon the defendant and the Service, prior
to commencement of the trial or entry of a
guilty plea a notice of intent to request
judicial [deportation] removal.
(B) Notwithstanding section 242B, the United
States Attorney, with the concurrence of the
Commissioner, shall file at least 30 days prior
to the date set for sentencing a charge
containing factual allegations regarding the
alienage of the defendant and identifying the
crime or crimes which make the defendant
deportable under section 241(a)(2)(A).
(C) If the court determines that the
defendant has presented substantial evidence to
establish prima facie eligibility for relief
from [deportation] removal under this Act, the
Commissioner shall provide the court with a
recommendation and report regarding the alien's
eligibility for relief. The court shall either
grant or deny the relief sought.
(D)(i) The alien shall have a reasonable
opportunity to examine the evidence against him
or her, to present evidence on his or her own
behalf, and to cross-examine witnesses
presented by the Government.
(ii) The court, for the purposes of
determining whether to enter an order described
in paragraph (1), shall only consider evidence
that would be admissible in proceedings
conducted pursuant to section [242(b)] 240.
(iii) Nothing in this subsection shall limit
the information a court of the United States
may receive or consider for the purposes of
imposing an appropriate sentence.
(iv) The court may order the alien [deported]
removed if the Attorney General demonstrates
that the alien is deportable under this Act.
(3) Notice, appeal, and execution of judicial order
of [deportation] removal.--
(A)(i) A judicial order of [deportation]
removal or denial of such order may be appealed
by either party to the court of appeals for the
circuit in which the district court is located.
(ii) Except as provided in clause (iii), such
appeal shall be considered consistent with the
requirements described in section [106] 242.
(iii) Upon execution by the defendant of a
valid waiver of the right to appeal the
conviction on which the order of [deportation]
removal is based, the expiration of the period
described in section [106(a)(1)] 242(b)(1), or
the final dismissal of an appeal from such
conviction, the order of [deportation] removal
shall become final and shall be executed at the
end of the prison term in accordance with the
terms of the order. If the conviction is
reversed on direct appeal, the order entered
pursuant to this section shall be void.
(B) As soon as is practicable after entry of
a judicial order of [deportation] removal, the
Commissioner shall provide the defendant with
written notice of the order of [deportation]
removal, which shall designate the defendant's
country of choice for [deportation] removal and
any alternate country pursuant to section
243(a).
(4) Denial of judicial order.--Denial without a
decision on the merits of a request for a judicial
order of [deportation] removal shall not preclude the
Attorney General from initiating [deportation] removal
proceedings pursuant to section [242] 240 upon the same
ground of deportability or upon any other ground of
deportability provided under section 241(a).
initiation of removal proceedings
Sec. 239. (a) Notice to Appear.--
(1) In general.--In removal proceedings under section
240, written notice (in this section referred to as a
``notice to appear'') shall be given in person to the
alien (or, if personal service is not practicable,
through service by mail to the alien or to the alien's
counsel of record, if any) specifying the following:
(A) The nature of the proceedings against the
alien.
(B) The legal authority under which the
proceedings are conducted.
(C) The acts or conduct alleged to be in
violation of law.
(D) The charges against the alien and the
statutory provisions alleged to have been
violated.
(E) The alien may be represented by counsel
and the alien will be provided (i) a period of
time to secure counsel under subsection (b)(1)
and (ii) a current list of counsel prepared
under subsection (b)(2).
(F)(i) The requirement that the alien must
immediately provide (or have provided) the
Attorney General with a written record of an
address and telephone number (if any) at which
the alien may be contacted respecting
proceedings under section 240.
(ii) The requirement that the alien must
provide the Attorney General immediately with a
written record of any change of the alien's
address or telephone number.
(iii) The consequences under section
240(b)(5) of failure to provide address and
telephone information pursuant to this
subparagraph.
(G)(i) The time and place at which the
proceedings will be held.
(ii) The consequences under section 240(b)(5)
of the failure, except under exceptional
circumstances, to appear at such proceedings.
(2) Notice of change in time or place of
proceedings.--
(A) In general.--In removal proceedings under
section 240, in the case of any change or
postponement in the time and place of such
proceedings, subject to subparagraph (B) a
written notice shall be given in person to the
alien (or, if personal service is not
practicable, through service by mail to the
alien or to the alien's counsel of record, if
any) specifying--
(i) the new time or place of the
proceedings, and
(ii) the consequences under section
240(b)(5) of failing, except under
exceptional circumstances, to attend
such proceedings.
(B) Exception.--In the case of an alien not
in detention, a written notice shall not be
required under this paragraph if the alien has
failed to provide the address required under
paragraph (1)(F).
(3) Central address files.--The Attorney General
shall create a system to record and preserve on a
timely basis notices of addresses and telephone numbers
(and changes) provided under paragraph (1)(F).
(b) Securing of Counsel.--
(1) In general.--In order that an alien be permitted
the opportunity to secure counsel before the first
hearing date in proceedings under section 240, the
hearing date shall not be scheduled earlier than 10
days after the service of the notice to appear, unless
the alien requests in writing an earlier hearing date.
(2) Current lists of counsel.--The Attorney General
shall provide for lists (updated not less often than
quarterly) of persons who have indicated their
availability to represent pro bono aliens in
proceedings under section 240. Such lists shall be
provided under subsection (a)(1)(E) and otherwise made
generally available.
(c) Service by Mail.--Service by mail under this section
shall be sufficient if there is proof of attempted delivery to
the last address provided by the alien in accordance with
subsection (a)(1)(F).
(d) Prompt Initiation of Removal.--(1) In the case of an
alien who is convicted of an offense which makes the alien
deportable, the Attorney General shall begin any removal
proceeding as expeditiously as possible after the date of the
conviction.
(2) Nothing in this subsection 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.
removal proceedings
Sec. 240. (a) Proceeding.--
(1) In general.--An immigration judge shall conduct
proceedings for deciding the inadmissibility or
deportability of an alien.
(2) Charges.--An alien placed in proceedings under
this section may be charged with any applicable ground
of inadmissibility under section 212(a) or any
applicable ground of deportability under section
237(a).
(3) Exclusive procedures.--Unless otherwise specified
in this Act, a proceeding under this section shall be
the sole and exclusive procedure for determining
whether an alien may be admitted to the United States
or, if the alien has been so admitted, removed from the
United States. Nothing in this section shall affect
proceedings conducted pursuant to section 238.
(b) Conduct of Proceeding.--
(1) Authority of immigration judge.--The immigration
judge shall administer oaths, receive evidence, and
interrogate, examine, and cross-examine the alien and
any witnesses. The immigration judge may issue
subpoenas for the attendance of witnesses and
presentation of evidence. The immigration judge shall
have authority (under regulations prescribed by the
Attorney General) to sanction by civil money penalty
any action (or inaction) in contempt of the judge's
proper exercise of authority under this Act.
(2) Form of proceeding.--
(A) In general.--The proceeding may take
place--
(i) in person,
(ii) through video conference, or
(iii) subject to subparagraph (B),
through telephone conference.
(B) Consent required in certain cases.--An
evidentiary hearing on the merits may only be
conducted through a telephone conference with
the consent of the alien involved after the
alien has been advised of the right to proceed
in person or through video conference.
(3) Presence of alien.--If it is impracticable by
reason of an alien's mental incompetency for the alien
to be present at the proceeding, the Attorney General
shall prescribe safeguards to protect the rights and
privileges of the alien.
(4) Aliens rights in proceeding.--In proceedings
under this section, under regulations of the Attorney
General--
(A) the alien shall have the privilege of
being represented, at no expense to the
Government, by counsel of the alien's choosing
who is authorized to practice in such
proceedings,
(B) the alien shall have a reasonable
opportunity to examine the evidence against the
alien, to present evidence on the alien's own
behalf, and to cross-examine witnesses
presented by the Government, and
(C) a complete record shall be kept of all
testimony and evidence produced at the
proceeding.
(5) Consequences of failure to appear.--
(A) In general.--Any alien who, after written
notice required under paragraph (1) or (2) of
section 239(a) has been provided to the alien
or the alien's counsel of record, does not
attend a proceeding under this section, shall
be ordered removed in absentia if the Service
establishes by clear, unequivocal, and
convincing evidence that the written notice was
so provided and that the alien is removable (as
defined in subsection (e)(2)). The written
notice by the Attorney General shall be
considered sufficient for purposes of this
subparagraph if provided at the most recent
address provided under section 239(a)(1)(F).
(B) No notice if failure to provide address
information.--No written notice shall be
required under subparagraph (A) if the alien
has failed to provide the address required
under section 239(a)(1)(F).
(C) Rescission of order.--Such an order may
be rescinded only--
(i) upon a motion to reopen filed
within 180 days after the date of the
order of removal if the alien
demonstrates that the failure to appear
was because of exceptional
circumstances (as defined in subsection
(e)(1)), or
(ii) upon a motion to reopen filed at
any time if the alien demonstrates that
the alien did not receive notice in
accordance with paragraph (1) or (2) of
section 239(a) or the alien
demonstrates that the alien was in
Federal or State custody and did not
appear through no fault of the alien.
The filing of the motion to reopen described in
clause (i) or (ii) shall stay the removal of
the alien pending disposition of the motion.
(D) Effect on judicial review.--Any petition
for review under section 242 of an order
entered in absentia under this paragraph shall
(except in cases described in section
242(b)(5)) be confined to (i) the validity of
the notice provided to the alien, (ii) the
reasons for the alien's not attending the
proceeding, and (iii) whether or not the alien
is removable.
(6) Treatment of frivolous behavior.--The Attorney
General shall, by regulation--
(A) define in a proceeding before an
immigration judge or before an appellate
administrative body under this title, frivolous
behavior for which attorneys may be sanctioned,
(B) specify the circumstances under which an
administrative appeal of a decision or ruling
will be considered frivolous and will be
summarily dismissed, and
(C) impose appropriate sanctions (which may
include suspension and disbarment) in the case
of frivolous behavior.
Nothing in this paragraph shall be construed as
limiting the authority of the Attorney General to take
actions with respect to inappropriate behavior.
(7) Limitation on discretionary relief for failure to
appear.--Any alien against whom a final order of
removal is entered in absentia under this subsection
and who, at the time of the notice described in
paragraph (1) or (2) of section 239(a), was provided
oral notice, either in the alien's native language or
in another language the alien understands, of the time
and place of the proceedings and of the consequences
under this paragraph of failing, other than because of
exceptional circumstances (as defined in subsection
(e)(1)) to attend a proceeding under this section,
shall not be eligible for relief under section 240A,
240B, 245, 248, or 249 for a period of 10 years after
the date of the entry of the final order of removal.
(c) Decision and Burden of Proof.--
(1) Decision.--
(A) In general.--At the conclusion of the
proceeding the immigration judge shall decide
whether an alien is removable from the United
States. The determination of the immigration
judge shall be based only on the evidence
produced at the hearing.
(B) Certain medical decisions.--If a medical
officer or civil surgeon or board of medical
officers has certified under section 232(b)
that an alien has a disease, illness, or
addiction which would make the alien
inadmissible under paragraph (1) of section
212(a), the decision of the immigration judge
shall be based solely upon such certification.
(2) Burden on alien.--In the proceeding the alien has
the burden of establishing--
(A) if the alien is an applicant for
admission, that the alien is clearly and beyond
doubt entitled to be admitted and is not
inadmissible under section 212; or
(B) by clear and convincing evidence, that
the alien is lawfully present in the United
States pursuant to a prior admission.
In meeting the burden of proof under subparagraph (B),
the alien shall have access to the alien's visa or
other entry document, if any, and any other records and
documents, not considered by the Attorney General to be
confidential, pertaining to the alien's admission or
presence in the United States.
(3) Burden on service in cases of deportable
aliens.--In the proceeding the Service has the burden
of establishing by clear and convincing evidence that,
in the case of an alien who has been admitted to the
United States, the alien is deportable. No decision on
deportability shall be valid unless it is based upon
reasonable, substantial, and probative evidence.
(4) Notice.--If the immigration judge decides that
the alien is removable and orders the alien to be
removed, the judge shall inform the alien of the right
to appeal that decision and of the consequences for
failure to depart under the order of removal, including
civil and criminal penalties.
(5) Motions to reconsider.--
(A) In general.--The alien may file one
motion to reconsider a decision that the alien
is removable from the United States.
(B) Deadline.--The motion must be filed
within 30 days of the date of entry of a final
administrative order of removal.
(C) Contents.--The motion shall specify the
errors of law or fact in the previous order and
shall be supported by pertinent authority.
(6) Motions to reopen.--
(A) In general.--An alien may file one motion
to reopen proceedings under this section.
(B) Contents.--The motion to reopen shall
state the new facts that will be proven at a
hearing to be held if the motion is granted,
and shall be supported by affidavits or other
evidentiary material.
(C) Deadline.--
(i) In general.--Except as provided
in this subparagraph, the motion to
reopen shall be filed within 90 days of
the date of entry of a final
administrative order of removal.
(ii) Asylum.--There is no time limit
on the filing of a motion to reopen if
the basis of the motion is to apply for
relief under sections 208 or 241(b)(3)
and is based on changed country
conditions arising in the country of
nationality or the country to which
removal has been ordered, if such
evidence is material and was not
available and would not have been
discovered or presented at the previous
proceeding.
(iii) Failure to appear.--A motion to
reopen may be filed within 180 days
after the date of the final order of
removal if the order has been entered
pursuant to subsection (b)(5) due to
the alien's failure to appear for
proceedings under this section and the
alien establishes that the alien's
failure to appear was because of
exceptional circumstances beyond the
control of the alien or because the
alien did not receive the notice
required under section 239(a)(2).
(d) Stipulated Removal.--The Attorney General shall provide
by regulation for the entry by an immigration judge of an order
of removal stipulated to by the alien (or the alien's
representative) and the Service. A stipulated order shall
constitute a conclusive determination of the alien's
removability from the United States.
(e) Definitions.--In this section and section 240A:
(1) Exceptional circumstances.--The term
``exceptional circumstances'' refers to exceptional
circumstances (such as serious illness of the alien or
serious illness or death of the spouse, child, or
parent of the alien, but not including less compelling
circumstances) beyond the control of the alien.
(2) Removable.--The term ``removable'' means--
(A) in the case of an alien not admitted to
the United States, that the alien is
inadmissible under section 212, or
(B) in the case of an alien admitted to the
United States, that the alien is deportable
under section 237.
cancellation of removal; adjustment of status
Sec. 240A. (a) Cancellation of Removal for Certain Permanent
Residents.--The Attorney General may cancel removal in the case
of an alien who is inadmissible or deportable from the United
States if the alien--
(1) has been an alien lawfully admitted for permanent
residence for not less than 5 years,
(2) has resided in the United States continuously for
7 years after having been admitted in any status, and
(3) has not been convicted of an aggravated felony or
felonies for which the alien has been sentenced, in the
aggregate, to a term of imprisonment of at least 5
years.
(b) Cancellation of Removal and Adjustment of Status for
Certain Nonpermanent Residents.--
(1) In general.--The Attorney General may cancel
removal in the case of an alien who is inadmissible or
deportable from the United States if the alien--
(A) has been physically present in the United
States for a continuous period of not less than
7 years immediately preceding the date of such
application;
(B) has been a person of good moral character
during such period;
(C) has not been convicted of an aggravated
felony; and
(D) establishes that removal would result in
extreme hardship to the alien or to the alien's
spouse, parent, or child, who is a citizen of
the United States or an alien lawfully admitted
for permanent residence.
(2) Special rule for battered spouse or child.--The
Attorney General may cancel removal in the case of an
alien who is inadmissible or deportable from the United
States if the alien--
(A) has been battered or subjected to extreme
cruelty in the United States by a spouse or
parent who is a United States citizen or lawful
permanent resident (or is the parent of a child
of a United States citizen or lawful permanent
resident and the child has been battered or
subjected to extreme cruelty in the United
States by such citizen or permanent resident
parent);
(B) has been physically present in the United
States for a continuous period of not less than
3 years immediately preceding the date of such
application;
(C) has been a person of good moral character
during such period;
(D) is not inadmissible under paragraph (2)
or (3) of section 212(a), is not deportable
under paragraph (1)(G) or (2) through (4) of
section 237(a), and has not been convicted of
an aggravated felony; and
(E) establishes that removal would result in
extreme hardship to the alien, the alien's
child, or (in the case of an alien who is a
child) to the alien's parent.
In acting on applications under this paragraph, 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
Attorney General.
(3) Adjustment of status.--The Attorney General may
adjust to the status of an alien lawfully admitted for
permanent residence any alien who the Attorney General
determines meets the requirements of paragraph (1) or
(2). The number of adjustments under this paragraph
shall not exceed 4,000 for any fiscal year. The
Attorney General shall record the alien's lawful
admission for permanent residence as of the date the
Attorney General's cancellation of removal under
paragraph (1) or (2) or determination under this
paragraph.
(c) Aliens Ineligible for Relief.--The provisions of
subsections (a) and (b)(1) shall not apply to any of the
following aliens:
(1) An alien who entered the United States as a
crewman subsequent to June 30, 1964.
(2) An alien who was admitted to the United States as
a nonimmigrant exchange alien as defined in section
101(a)(15)(J), or has acquired the status of such a
nonimmigrant exchange alien after admission, in order
to receive graduate medical education or training,
regardless of whether or not the alien is subject to or
has fulfilled the two-year foreign residence
requirement of section 212(e).
(3) An alien who--
(A) was admitted to the United States as a
nonimmigrant exchange alien as defined in
section 101(a)(15)(J) or has acquired the
status of such a nonimmigrant exchange alien
after admission other than to receive graduate
medical education or training,
(B) is subject to the two-year foreign
residence requirement of section 212(e), and
(C) has not fulfilled that requirement or
received a waiver thereof.
(4) An alien who is inadmissible under section
212(a)(3) or deportable under subparagraph (B) or (D)
of section 237(a)(4).
(d) Special Rules Relating to Continuous Residence or
Physical Presence.--
(1) Termination of continuous period.--For purposes
of this section, any period of continuous residence or
continuous physical presence in the United States shall
be deemed to end when the alien is served a notice to
appear under section 239(a).
(2) Treatment of certain breaks in presence.--An
alien shall be considered to have failed to maintain
continuous physical presence in the United States under
subsections (b)(1) and (b)(2) if the alien has departed
from the United States for any periods in the aggregate
exceeding 180 days, unless the Attorney General finds
that return could not be accomplished within that time
period due to emergent reasons.
(3) Continuity not required because of honorable
service in armed forces and presence upon entry into
service.--The requirements of continuous residence or
continuous physical presence in the United States under
subsections (a) and (b) shall not apply to an alien
who--
(A) has served for a minimum period of 24
months in an active-duty status in the Armed
Forces of the United States and, if separated
from such service, was separated under
honorable conditions, and
(B) at the time of the alien's enlistment or
induction was in the United States.
voluntary departure
Sec. 240B. (a) Certain Conditions.--
(1) In general.--The Attorney General may permit an
alien voluntarily to depart the United States at the
alien's own expense under this subsection, in lieu of
being subject to proceedings under section 240 or prior
to the completion of such proceedings, if the alien is
not deportable under section 237(a)(2)(A)(iii) or
section 237(a)(4)(B).
(2) Period.--Permission to depart voluntarily under
this subsection shall not be valid for a period
exceeding 120 days.
(3) Bond.--The Attorney General may require an alien
permitted to depart voluntarily under this subsection
to post a voluntary departure bond, to be surrendered
upon proof that the alien has departed the United
States within the time specified.
(4) Treatment of aliens arriving in the united
states.--In the case of an alien who is arriving in the
United States and with respect to whom proceedings
under section 240 are (or would otherwise be) initiated
at the time of such alien's arrival, paragraph (1)
shall not apply. Nothing in this paragraph shall be
construed as preventing such an alien from withdrawing
the application for admission in accordance with
section 235(a)(4).
(b) At Conclusion of Proceedings.--
(1) In general.--The Attorney General may permit an
alien voluntarily to depart the United States at the
alien's own expense if, at the conclusion of a
proceeding under section 240, the immigration judge
enters an order granting voluntary departure in lieu of
removal and finds that--
(A) the alien has been physically present in
the United States for a period of at least one
year immediately preceding the date the notice
to appear was served under section 239(a);
(B) the alien is, and has been, a person of
good moral character for at least 5 years
immediately preceding the alien's application
for voluntary departure;
(C) the alien is not deportable under section
237(a)(2)(A)(iii) or section 237(a)(4); and
(D) the alien has established by clear and
convincing evidence that the alien has the
means to depart the United States and intends
to do so.
(2) Period.--Permission to depart voluntarily under
this subsection shall not be valid for a period
exceeding 60 days.
(3) Bond.--An alien permitted to depart voluntarily
under this subsection shall be required to post a
voluntary departure bond, in an amount necessary to
ensure that the alien will depart, to be surrendered
upon proof that the alien has departed the United
States within the time specified.
(c) Aliens Not Eligible.--The Attorney General shall not
permit an alien to depart voluntarily under this section if the
alien was previously permitted to so depart after having been
found inadmissible under section 212(a)(9).
(d) Civil Penalty for Failure to Depart.--If an alien is
permitted to depart voluntarily under this section and fails
voluntarily to depart the United States within the time period
specified, the alien shall be subject to a civil penalty of not
less than $1,000 and not more than $5,000, and be ineligible
for a period of 10 years for any further relief under this
section and sections 240A, 245, 248, and 249.
(e) Additional Conditions.--The Attorney General may by
regulation limit eligibility for voluntary departure under this
section for any class or classes of aliens.
(f) Appeals of Denials.--An alien may appeal from denial of a
request for an order of voluntary departure under subsection
(b) in accordance with the procedures in section 242.
Notwithstanding the pendency of such appeal, the alien shall be
removable from the United States 60 days after entry of the
order of removal. The alien's removal from the United States
shall not moot the appeal.
records of admission
Sec. [240.] 240C. (a) The Attorney General shall cause to be
filed, as a record of admission of each immigrant, the
immigrant visa required by section 221(e) to be surrendered at
the port of entry by the arriving alien to an immigration
officer.
(b) The Attorney General shall cause to be filed such record
of the [entry] admission into the United States of each
immigrant admitted under section 211(b) and of each
nonimmigrant as the Attorney General deems necessary for the
enforcement of the immigration laws.
detention and removal of aliens ordered removed
Sec. 241. (a) Detention, Release, and Removal of Aliens
Ordered Removed.--
(1) Removal period.--
(A) In general.--Except as otherwise provided
in this section, when an alien is ordered
removed, the Attorney General shall remove the
alien from the United States within a period of
90 days (in this section referred to as the
``removal period'').
(B) Beginning of period.--The removal period
begins on the latest of the following:
(i) The date the order of removal
becomes administratively final.
(ii) If the removal order is
judicially reviewed and such review
serves to stay the removal of the
alien, the date of the court's final
order.
(iii) If the alien is detained or
confined (except under an immigration
process), the date the alien is
released from detention or confinement.
(C) Suspension of period.--The removal period
shall be extended beyond a period of 90 days
and the alien may remain in detention during
such extended period if the alien willfully
fails or refuses to make timely application in
good faith for travel or other documents
necessary to the alien's departure or conspires
or acts to prevent the alien's removal subject
to an order of removal.
(2) Detention and release by the attorney general.--
During the removal period, the Attorney General shall
detain the alien. If there is insufficient detention
space to detain the alien, the Attorney General shall
make a specific finding to this effect and may release
the alien on a bond containing such conditions as the
Attorney General may prescribe.
(3) Supervision after 90-day period.--If the alien
does not leave or is not removed within the removal
period, the alien, pending removal, shall be subject to
supervision under regulations prescribed by the
Attorney General. The regulations shall include
provisions requiring the alien--
(A) to appear before an immigration officer
periodically for identification;
(B) to submit, if necessary, to a medical and
psychiatric examination at the expense of the
United States Government;
(C) to give information under oath about the
alien's nationality, circumstances, habits,
associations, and activities, and other
information the Attorney General considers
appropriate; and
(D) to obey reasonable written restrictions
on the alien's conduct or activities that the
Attorney General prescribes for the alien.
(4) Aliens imprisoned, arrested, or on parole,
supervised release, or probation.--Except as provided
in section 343(a) of the Public Health Service Act (42
U.S.C. 259(a)), the Attorney General may not remove an
alien who is sentenced to imprisonment until the alien
is released from imprisonment. Parole, supervised
release, probation, or possibility of arrest or further
imprisonment is not a reason to defer removal.
(5) Reinstatement of removal orders against aliens
illegally reentering.--If the Attorney General finds
that an alien has reentered the United States illegally
after having been removed or having departed
voluntarily, under an order of removal, the prior order
of removal is reinstated from its original date and is
not subject to being reopened or reviewed, and the
alien shall be removed under the prior order at any
time after the reentry.
(6) Inadmissible aliens.--An alien ordered removed
who is inadmissible under section 212 may be detained
beyond the removal period and, if released, shall be
subject to the terms of supervision in paragraph (3).
(7) Employment authorization.--No alien ordered
removed shall be eligible to receive authorization to
be employed in the United States unless the Attorney
General makes a specific finding that--
(A) the alien cannot be removed due to the
refusal of all countries designated by the
alien or under this section to receive the
alien, or
(B) the removal of the alien is otherwise
impracticable or contrary to the public
interest.
(b) Countries to Which Aliens May Be Removed.--
(1) Aliens arriving at the united states.--Subject to
paragraph (3)--
(A) In general.--Except as provided by
subparagraphs (B) and (C), an alien who arrives
at the United States and with respect to whom
proceedings under section 240 were initiated at
the time of such alien's arrival shall be
removed to the country in which the alien
boarded the vessel or aircraft on which the
alien arrived in the United States.
(B) Travel from contiguous territory.--If the
alien boarded the vessel or aircraft on which
the alien arrived in the United States in a
foreign territory contiguous to the United
States, an island adjacent to the United
States, or an island adjacent to a foreign
territory contiguous to the United States, and
the alien is not a native, citizen, subject, or
national of, or does not reside in, the
territory or island, removal shall be to the
country in which the alien boarded the vessel
that transported the alien to the territory or
island.
(C) Alternative countries.--If the government
of the country designated in subparagraph (A)
or (B) is unwilling to accept the alien into
that country's territory, removal shall be to
any of the following countries, as directed by
the Attorney General:
(i) The country of which the alien is
a citizen, subject, or national.
(ii) The country in which the alien
was born.
(iii) The country in which the alien
has a residence.
(iv) A country with a government that
will accept the alien into the
country's territory if removal to each
country described in a previous clause
of this subparagraph is impracticable,
inadvisable, or impossible.
(2) Other aliens.--Subject to paragraph (3)--
(A) Selection of country by alien.--Except as
otherwise provided in this paragraph--
(i) any alien not described in
paragraph (1) who has been ordered
removed may designate one country to
which the alien wants to be removed,
and
(ii) the Attorney General shall
remove the alien to the country the
alien so designates.
(B) Limitation on designation.--An alien may
designate under subparagraph (A)(i) a foreign
territory contiguous to the United States, an
adjacent island, or an island adjacent to a
foreign territory contiguous to the United
States as the place to which the alien is to be
removed only if the alien is a native, citizen,
subject, or national of, or has resided in,
that designated territory or island.
(C) Disregarding designation.--The Attorney
General may disregard a designation under
subparagraph (A)(i) if--
(i) the alien fails to designate a
country promptly;
(ii) the government of the country
does not inform the Attorney General
finally, within 30 days after the date
the Attorney General first inquires,
whether the government will accept the
alien into the country;
(iii) the government of the country
is not willing to accept the alien into
the country; or
(iv) the Attorney General decides
that removing the alien to the country
is prejudicial to the United States.
(D) Alternative country.--If an alien is not
removed to a country designated under
subparagraph (A)(i), the Attorney General shall
remove the alien to a country of which the
alien is a subject, national, or citizen unless
the government of the country--
(i) does not inform the Attorney
General or the alien finally, within 30
days after the date the Attorney
General first inquires or within
another period of time the Attorney
General decides is reasonable, whether
the government will accept the alien
into the country; or
(ii) is not willing to accept the
alien into the country.
(E) Additional removal countries.--If an
alien is not removed to a country under the
previous subparagraphs of this paragraph, the
Attorney General shall remove the alien to any
of the following countries:
(i) The country from which the alien
was admitted to the United States.
(ii) The country in which is located
the foreign port from which the alien
left for the United States or for a
foreign territory contiguous to the
United States.
(iii) A country in which the alien
resided before the alien entered the
country from which the alien entered
the United States.
(iv) The country in which the alien
was born.
(v) The country that had sovereignty
over the alien's birthplace when the
alien was born.
(vi) The country in which the alien's
birthplace is located when the alien is
ordered removed.
(vii) If impracticable, inadvisable,
or impossible to remove the alien to
each country described in a previous
clause of this subparagraph, another
country whose government will accept
the alien into that country.
(F) Removal country when united states is at
war.--When the United States is at war and the
Attorney General decides that it is
impracticable, inadvisable, inconvenient, or
impossible to remove an alien under this
subsection because of the war, the Attorney
General may remove the alien--
(i) to the country that is host to a
government in exile of the country of
which the alien is a citizen or subject
if the government of the host country
will permit the alien's entry; or
(ii) if the recognized government of
the country of which the alien is a
citizen or subject is not in exile, to
a country, or a political or
territorial subdivision of a country,
that is very near the country of which
the alien is a citizen or subject, or,
with the consent of the government of
the country of which the alien is a
citizen or subject, to another country.
(c) Removal of Aliens Arriving at Port of Entry.--
(1) Vessels and aircraft.--An alien arriving at a
port of entry of the United States who is ordered
removed either without a hearing under section
235(a)(1) or 235(c) or pursuant to proceedings under
section 240 initiated at the time of such alien's
arrival shall be removed immediately on a vessel or
aircraft owned by the owner of the vessel or aircraft
on which the alien arrived in the United States,
unless--
(A) it is impracticable to remove the alien
on one of those vessels or aircraft within a
reasonable time, or
(B) the alien is a stowaway--
(i) who has been ordered removed in
accordance with section 235(a)(1),
(ii) who has requested asylum, and
(iii) whose application has not been
adjudicated or whose asylum application
has been denied but who has not
exhausted all appeal rights.
(2) Stay of removal.--
(A) In general.--The Attorney General may
stay the removal of an alien under this
subsection if the Attorney General decides
that--
(i) immediate removal is not
practicable or proper; or
(ii) the alien is needed to testify
in the prosecution of a person for a
violation of a law of the United States
or of any State.
(B) Payment of detention costs.--During the
period an alien is detained because of a stay
of removal under subparagraph (A)(ii), the
Attorney General may pay from the appropriation
``Immigration and Naturalization Service--
Salaries and Expenses''--
(i) the cost of maintenance of the
alien; and
(ii) a witness fee of $1 a day.
(C) Release during stay.--The Attorney
General may release an alien whose removal is
stayed under subparagraph (A)(ii) on--
(i) the alien's filing a bond of at
least $500 with security approved by
the Attorney General;
(ii) condition that the alien appear
when required as a witness and for
removal; and
(iii) other conditions the Attorney
General may prescribe.
(3) Costs of detention and maintenance pending
removal.--
(A) In general.--Except as provided in
subparagraph (B) and subsection (d), an owner
of a vessel or aircraft bringing an alien to
the United States shall pay the costs of
detaining and maintaining the alien--
(i) while the alien is detained under
subsection (d)(1), and
(ii) in the case of an alien who is a
stowaway, while the alien is being
detained pursuant to--
(I) subsection (d)(2)(A) or
(d)(2)(B)(i),
(II) subsection (d)(2)(B)(ii)
or (iii) for the period of time
reasonably necessary for the
owner to arrange for
repatriation or removal of the
stowaway, including obtaining
necessary travel documents, but
not to extend beyond the date
on which it is ascertained that
such travel documents cannot be
obtained from the country to
which the stowaway is to be
returned, or
(III) section
235(b)(1)(B)(ii), for a period
not to exceed 15 days
(excluding Saturdays, Sundays,
and holidays) commencing on the
first such day which begins on
the earlier of 72 hours after
the time of the initial
presentation of the stowaway
for inspection or at the time
the stowaway is determined to
have a credible fear of
persecution.
(B) Nonapplication.--Subparagraph (A) shall
not apply if--
(i) the alien is a crewmember;
(ii) the alien has an immigrant visa;
(iii) the alien has a nonimmigrant
visa or other documentation authorizing
the alien to apply for temporary
admission to the United States and
applies for admission not later than
120 days after the date the visa or
documentation was issued;
(iv) the alien has a reentry permit
and applies for admission not later
than 120 days after the date of the
alien's last inspection and admission;
(v)(I) the alien has a nonimmigrant
visa or other documentation authorizing
the alien to apply for temporary
admission to the United States or a
reentry permit;
(II) the alien applies for admission
more than 120 days after the date the
visa or documentation was issued or
after the date of the last inspection
and admission under the reentry permit;
and
(III) the owner of the vessel or
aircraft satisfies the Attorney General
that the existence of the condition
relating to inadmissibility could not
have been discovered by exercising
reasonable care before the alien
boarded the vessel or aircraft; or
(vi) the individual claims to be a
national of the United States and has a
United States passport.
(d) Requirements of Persons Providing Transportation.--
(1) Removal at time of arrival.--An owner, agent,
master, commanding officer, person in charge, purser,
or consignee of a vessel or aircraft bringing an alien
(except an alien crewmember) to the United States
shall--
(A) receive an alien back on the vessel or
aircraft or another vessel or aircraft owned or
operated by the same interests if the alien is
ordered removed under this part; and
(B) take the alien to the foreign country to
which the alien is ordered removed.
(2) Alien stowaways.--An owner, agent, master,
commanding officer, charterer, or consignee of a vessel
or aircraft arriving in the United States with an alien
stowaway--
(A) shall detain the alien on board the
vessel or aircraft, or at such place as the
Attorney General shall designate, until
completion of the inspection of the alien by an
immigration officer;
(B) may not permit the stowaway to land in
the United States, except pursuant to
regulations of the Attorney General
temporarily--
(i) for medical treatment,
(ii) for detention of the stowaway by
the Attorney General, or
(iii) for departure or removal of the
stowaway; and
(C) if ordered by an immigration officer,
shall remove the stowaway on the vessel or
aircraft or on another vessel or aircraft.
The Attorney General shall grant a timely request to
remove the stowaway under subparagraph (C) on a vessel
or aircraft other than that on which the stowaway
arrived if any travel documents necessary for departure
or repatriation of the stowaway have been obtained and
removal of the stowaway will not be unreasonably
delayed.
(3) Removal upon order.--An owner, agent, master,
commanding officer, person in charge, purser, or
consignee of a vessel, aircraft, or other
transportation line shall comply with an order of the
Attorney General to take on board, guard safely, and
transport to the destination specified any alien
ordered to be removed under this Act.
(e) Payment of Expenses of Removal.--
(1) Costs of removal at time of arrival.--In the case
of an alien who is a stowaway or who is ordered removed
either without a hearing under section 235(a)(1) or
235(c) or pursuant to proceedings under section 240
initiated at the time of such alien's arrival, the
owner of the vessel or aircraft (if any) on which the
alien arrived in the United States shall pay the
transportation cost of removing the alien. If removal
is on a vessel or aircraft not owned by the owner of
the vessel or aircraft on which the alien arrived in
the United States, the Attorney General may--
(A) pay the cost from the appropriation
``Immigration and Naturalization Service--
Salaries and Expenses''; and
(B) recover the amount of the cost in a civil
action from the owner, agent, or consignee of
the vessel or aircraft (if any) on which the
alien arrived in the United States.
(2) Costs of removal to port of removal for aliens
admitted or permitted to land.--In the case of an alien
who has been admitted or permitted to land and is
ordered removed, the cost (if any) of removal of the
alien to the port of removal shall be at the expense of
the appropriation for the enforcement of this Act.
(3) Costs of removal from port of removal for aliens
admitted or permitted to land.--
(A) Through appropriation.--Except as
provided in subparagraph (B), in the case of an
alien who has been admitted or permitted to
land and is ordered removed, the cost (if any)
of removal of the alien from the port of
removal shall be at the expense of the
appropriation for the enforcement of this Act.
(B) Through owner.--
(i) In general.--In the case of an
alien described in clause (ii), the
cost of removal of the alien from the
port of removal may be charged to any
owner of the vessel, aircraft, or other
transportation line by which the alien
came to the United States.
(ii) Aliens described.--An alien
described in this clause is an alien
who--
(I) is admitted to the United
States (other than lawfully
admitted for permanent
residence) and is ordered
removed within 5 years of the
date of admission based on a
ground that existed before or
at the time of admission, or
(II) is an alien crewman
permitted to land temporarily
under section 252 and is
ordered removed within 5 years
of the date of landing.
(C) Costs of removal of certain aliens
granted voluntary departure.--In the case of an
alien who has been granted voluntary departure
under section 240B and who is financially
unable to depart at the alien's own expense and
whose removal the Attorney General deems to be
in the best interest of the United States, the
expense of such removal may be paid from the
appropriation for the enforcement of this Act.
(f) Aliens Requiring Personal Care During Removal.--
(1) In general.--If the Attorney General believes
that an alien being removed requires personal care
because of the alien's mental or physical condition,
the Attorney General may employ a suitable person for
that purpose who shall accompany and care for the alien
until the alien arrives at the final destination.
(2) Costs.--The costs of providing the service
described in paragraph (1) shall be defrayed in the
same manner as the expense of removing the accompanied
alien is defrayed under this section.
(g) Places of Detention.--
(1) In general.--The Attorney General shall arrange
for appropriate places of detention for aliens detained
pending removal or a decision on removal. When United
States Government facilities are unavailable or
facilities adapted or suitably located for detention
are unavailable for rental, the Attorney General may
expend from the appropriation ``Immigration and
Naturalization Service--Salaries and Expenses'',
without regard to section 3709 of the Revised Statutes
(41 U.S.C. 5), amounts necessary to acquire land and to
acquire, build, remodel, repair, and operate facilities
(including living quarters for immigration officers if
not otherwise available) necessary for detention.
(2) Detention facilities of the immigration and
naturalization service.--Prior to initiating any
project for the construction of any new detention
facility for the Service, the Commissioner shall
consider the availability for purchase or lease of any
existing prison, jail, detention center, or other
comparable facility suitable for such use.
(h) Statutory Construction.--Nothing in this section 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.
[(j)] (i) Incarceration.--
(1) If the chief executive officer of a State (or, if
appropriate, a political subdivision of the State)
exercising authority with respect to the incarceration
of an undocumented criminal alien submits a written
request to the Attorney General, the Attorney General
shall, as determined by the Attorney General--
(A) enter into a contractual arrangement
which provides for compensation to the State or
a political subdivision of the State, as may be
appropriate, with respect to the incarceration
of the undocumented criminal alien; or
(B) take the undocumented criminal alien into
the custody of the Federal Government and
incarcerate the alien.
(2) Compensation under paragraph (1)(A) shall be the
average cost of incarceration of a prisoner in the
relevant State as determined by the Attorney General.
(3) For purposes of this subsection, the term
``undocumented criminal alien'' means an alien who--
(A) has been convicted of a [felony and
sentenced to a term of imprisonment] felony or
two or more misdemeanors; and
(B)(i) entered the United States without
inspection or at any time or place other than
as designated by the Attorney General;
(ii) was the subject of exclusion or
deportation proceedings at the time he or she
was taken into custody by the State or a
political subdivision of the State; or
(iii) was admitted as a nonimmigrant and at
the time he or she was taken into custody by
the State or a political subdivision of the
State has failed to maintain the nonimmigrant
status in which the alien was admitted or to
which it was changed under section 248, or to
comply with the conditions of any such status.
(4)(A) In carrying out paragraph (1), the Attorney
General shall give priority to the Federal
incarceration of undocumented criminal aliens who have
committed aggravated felonies.
(B) The Attorney General shall ensure that
undocumented criminal aliens incarcerated in Federal
facilities pursuant to this subsection are held in
facilities which provide a level of security
appropriate to the crimes for which they were
convicted.
(5) There are authorized to be appropriated such sums
as may be necessary to carry out this subsection, of
which the following amounts may be appropriated from
the Violent Crime Reduction Trust Fund:
(A) $130,000,000 for fiscal year 1995;
(B) $300,000,000 for fiscal year 1996;
(C) $330,000,000 for fiscal year 1997;
(D) $350,000,000 for fiscal year 1998;
(E) $350,000,000 for fiscal year 1999; and
(F) $340,000,000 for fiscal year 2000.
(6) In this subsection, the term ``incarceration''
includes imprisonment in a State or local prison or
jail the time of which is counted towards completion of
a sentence or the detention of an alien previously
convicted of a felony or misdemeanor who has been
arrested and is being held pending judicial action on
new charges or pending transfer to Federal custody.
[Chapter 5--Deportation; Adjustment of Status]
Chapter 5--Adjustment and Change of Status
[apprehension and deportation of aliens
[Sec. 242. (a)(1) Pending a determination of deportability in
the case of any alien as provided in subsection (b) of this
section, such alien may, upon warrant of the Attorney General,
be arrested and taken into custody. Except as provided in
paragraph (2), any such alien taken into custody may, in the
discretion of the Attorney General and pending such final
determination of deportability, (A) be continued in custody; or
(B) be released under bond in the amount of not less than $500
with security approved by the Attorney General, containing such
conditions as the Attorney General may prescribe; or (C) be
released on conditional parole. But such bond or parole,
whether heretofore or hereafter authorized, may be revoked at
any time by the Attorney General, in his discretion, and the
alien may be returned to custody under the warrant which
initiated the proceedings against him and detained until final
determination of his deportability. Any court of competent
jurisdiction shall have authority to review or revise any
determination of the Attorney General concerning detention,
release on bond, or parole pending final decision of
deportability upon a conclusive showing in habeas corpus
proceedings that the Attorney General is not proceeding with
such reasonable dispatch as may be warranted by the particular
facts and circumstances in the case of any alien to determine
deportability.
[(2)(A) The Attorney General shall take into custody any
alien convicted of an aggravated felony upon release of the
alien (regardless of whether or not such release is on parole,
supervised release, or probation, and regardless of the
possibility of rearrest or further confinement in respect of
the same offense). Notwithstanding paragraph (1) or subsections
(c) and (d) but subject to subparagraph (B), the Attorney
General shall not release such felon from custody.
[(B) The Attorney General may not release from custody any
lawfully admitted alien who has been convicted of an aggravated
felony, either before or after a determination of
deportability, unless the alien demonstrates to the
satisfaction of the Attorney General that such alien is not a
threat to the community and that the alien is likely to appear
before any scheduled hearings.
[(3)(A) The Attorney General shall devise and implement a
system--
[(i) to make available, daily (on a 24-hour basis),
to Federal, State, and local authorities the
investigative resources of the Service to determine
whether individuals arrested by such authorities for
aggravated felonies are aliens;
[(ii) to designate and train officers and employees
of the Service within each district to serve as a
liaison to Federal, State, and local law enforcement
and correctional agencies and courts with respect to
the arrest, conviction, and release of any alien
charged with an aggravated felony; and
[(iii) which uses computer resources to maintain a
current record of aliens who have been convicted of an
aggravated felony and who have been deported; such
record shall be made available to inspectors at ports
of entry and to border patrol agents at sector
headquarters for purposes of immediate identification
of any such previously deported alien seeking to
reenter the United States.
[(B) The Attorney General shall submit reports to the
Committees on the Judiciary of the House of Representatives and
of the Senate at the end of the 6-month period and at the end
of the 18-month period beginning on the effective date of this
paragraph which describe in detail specific efforts made by the
Attorney General to implement this paragraph.
[(b) A special inquiry officer shall conduct proceedings
under this section to determine the deportability of any alien,
and shall administer oaths, present and receive evidence,
interrogate, examine, and cross-examine the alien or witnesses,
and as authorized by the Attorney General, shall make
determinations, including orders of deportation. Determination
of deportability in any case shall be made only upon a record
made in a proceeding before a special inquiry officer, at which
the alien shall have reasonable opportunity to be present,
unless by reason of the alien's mental incompetency it is
impracticable for him to be present, in which case the Attorney
General shall prescribe necessary and proper safeguards for the
rights and privileges of such alien. If any alien has been
given a reasonable opportunity to be present at a proceeding
under this section, and without reasonable cause fails or
refuses to attend or remain in attendance at such proceeding,
the special inquiry officer may proceed to a determination in
like manner as if the alien were present. In any case or class
of cases in which the Attorney General believes that such
procedure would be of aid in making a determination, he may
require specifically or by regulation that an additional
immigration officer shall be assigned to present the evidence
on behalf of the United States and in such case such additional
immigration officer shall have authority to present evidence,
and to interrogate, examine and cross-examine the alien or
other witnesses in the proceedings. Nothing in the preceding
sentence shall be construed to diminish the authority conferred
upon the special inquiry officer conducting such proceedings.
No special inquiry officer shall conduct a proceeding in any
case under this section in which he shall have participated in
investigative functions or in which he shall have participated
(except as provided in this subsection) in prosecuting
functions. Proceedings before a special inquiry officer acting
under the provisions of this section shall be in accordance
with such regulations, not inconsistent with this Act, as the
Attorney General shall prescribe. Such regulations shall
include requirements that are consistent with section 242B and
that provide that--
[(1) the alien shall be given notice, reasonable
under all the circumstances, of the nature of the
charges against him and of the time and place at which
the proceedings will be held,
[(2) the alien shall have the privilege of being
represented (at no expense to the Government) by such
counsel, authorized to practice in such proceedings, as
he shall choose,
[(3) the alien shall have a reasonable opportunity to
examine the evidence against him, to present evidence
on his own behalf, and to cross-examine witnesses
presented by the Government, and
[(4) no decision of deportability shall be valid
unless it is based upon reasonable, substantial, and
probative evidence.
Except as provided in section 242A(d), the procedure so
prescribed shall be the sole and exclusive procedure for
determining the deportability of an alien under this section.
In any case in which an alien is ordered deported from the
United States under the provisions of this Act, or of any other
law or treaty, the decision of the Attorney General shall be
final. In the discretion of the Attorney General, and under
such regulations as he may prescribe, deportation proceedings,
including issuance of a warrant of arrest, and a finding of
deportability under this section need not be required in the
case of any alien who admits to belonging to a class of aliens
who are deportable under section 241 if such alien voluntarily
departs from the United States at his own expense, or is
removed at Government expense as hereinafter authorized, unless
the Attorney General has reason to believe that such alien is
deportable under paragraph (2), (3), or (4) of section 241(a).
If any alien who is authorized to depart voluntarily under the
preceding sentence is financially unable to depart at his own
expense and the Attorney General deems his removal to be in the
best interest of the United States, the expense of such removal
may be paid from the appropriation for the enforcement of this
Act.
[(c) When a final order of deportation under administrative
processes is made against any alien, the Attorney General shall
have a period of six months from the date of such order, or, if
judicial review is had, then from the date of the final order
of the court, within which to effect the alien's departure from
the United States, during which period, at the Attorney
General's discretion, the alien may be detained, released on
bond in an amount and containing such conditions as the
Attorney General may prescribe, or released on such other
conditions as the Attorney General may prescribe. Any court of
competent jurisdiction shall have authority to review or revise
any determination of the Attorney General concerning detention,
release on bond, or other release during such six-month period
upon a conclusive showing in habeas corpus proceedings that the
Attorney General is not proceeding with such reasonable
dispatch as may be warranted by the particular facts and
circumstances in the case of any alien to effect such alien's
departure from the United States within such six-month period.
If deportation has not been practicable, advisable, or
possible, or departure of the alien from the United States
under the order of deportation has not been effected, within
such six-month period, the alien shall become subject to such
further supervision and detention pending eventual deportation
as is authorized in this section. The Attorney General is
hereby authorized and directed to arrange for appropriate
places of detention for those aliens whom he shall take into
custody and detain under this section. Where no Federal
buildings are available or buildings adapted or suitably
located for the purpose are available for rental, the Attorney
General is hereby authorized, notwithstanding section 3709 of
the Revised Statutes, as amended (41 U.S.C. 5), or section 322
of the Act of June 30, 1932, as amended (40 U.S.C. 278a), to
expend, from the appropriation provided for the administration
and enforcement of the immigration laws, such amounts as may be
necessary for the acquisition of land and the erection,
acquisition, maintenance, operation, remodeling, or repair of
buildings, sheds, and office quarters (including living
quarters for officers where none are otherwise available), and
adjunct facilities, necessary for the detention of aliens. For
the purposes of this section an order of deportation heretofore
or hereafter entered against an alien in legal detention or
confinement, other than under an immigration process, shall be
considered as being made as of the moment he is released from
such detention or confinement, and not prior thereto.
[(d) Any alien, against whom a final order of deportation as
defined in subsection (c) heretofore or hereafter issued has
been outstanding for more than six months, shall, pending
eventual deportation, be subject to supervision under
regulations prescribed by the Attorney General. Such
regulations shall include provisions which will require any
alien subject to supervision (1) to appear from time to time
before an immigration officer for identification; (2) to
submit, if necessary, to medical and psychiatric examination at
the expense of the United States; (3) to give information under
oath as to his nationality, circumstances, habits,
associations, and activities, and such other information,
whether or not related to the foregoing, as the Attorney
General may deem fit and proper; and (4) to conform to such
reasonable written restrictions on his conduct or activities as
are prescribed by the Attorney General in his case. Any alien
who shall willfully fail to comply with such regulations, or
willfully fail to appear or to give information or submit to
medical or psychiatric examination if required, or knowingly
give false information in relation to the requirements of such
regulations, or knowingly violate a reasonable restriction
imposed upon his conduct or activity, shall be fined not more
than $1,000 or imprisoned not more than one year, or both.
[(e) Any alien against whom a final order of deportation is
outstanding by reason of being a member of any of the classes
described in section 241(a), who shall willfully fail or refuse
to depart from the United States within a period of six months
from the date of the final order of deportation under
administrative processes, or, if judicial review is had, then
from the date of the final order of the court, or shall
willfully fail or refuse to make timely application in good
faith for travel or other documents necessary to his departure,
or who shall connive or conspire, or take any other action,
designed to prevent or hamper or with the purpose of preventing
or hampering his departure pursuant to such order of
deportation, or who shall willfully fail or refuse to present
himself for deportation at the time and place required by the
Attorney General pursuant to such order of deportation, shall
upon conviction be guilty of a felony, and shall be imprisoned
not more than four years, or shall be imprisoned not more than
ten years if the alien is a member of any of the classes
described in paragraph (1)(E), (2), (3), or (4) of section
241(a).: Provided, That this subsection shall not make it
illegal for any alien to take any proper steps for the purpose
of securing cancellation of or exemption from such order of
deportation or for the purpose of securing his release from
incarceration or custody: Provided further, That the court may
for good cause suspend the sentence of such alien and order his
release under such conditions as the court may prescribe. In
determining whether good cause has been shown to justify
releasing the alien, the court shall take into account such
factors as (1) the age, health, and period of detention of the
alien; (2) the effect of the alien's release upon the national
security and public peace or safety; (3) the likelihood of the
alien's resuming or following a course of conduct which made or
would make him deportable; (4) the character of the efforts
made by such alien himself and by representatives of the
country or countries to which his deportation is directed to
expedite the alien's departure from the United States; (5) the
reason for the inability of the Government of the United States
to secure passports, other travel documents, or deportation
facilities from the country or countries to which the alien has
been ordered deported; and (6) the eligibility of the alien for
discretionary relief under the immigration laws.
[(f) Should the Attorney General find that any alien has
unlawfully reentered the United States after having previously
departed or been deported pursuant to an order of deportation,
whether before or after the date of enactment of this Act, on
any ground described in any of the paragraphs enumerated in
subsection (e), the previous order of deportation shall be
deemed to be reinstated from its original date and such alien
shall be deported under such previous order at any time
subsequent to such reentry. For the purposes of subsection (e)
the date on which the finding is made that such reinstatement
is appropriate shall be deemed the date of the final order of
deportation.
[(g) If any alien, subject to supervision or detention under
subsections (c) or (d) of this section, is able to depart from
the United States under the order of deportation, except that
he is financially unable to pay his passage, the Attorney
General may in his discretion permit such alien to depart
voluntarily, and the expense of such passage to the country to
which he is destined may be paid from the appropriation for the
enforcement of this Act, unless such payment is otherwise
provided for under this Act.
[(h) An alien sentenced to imprisonment shall not be deported
until such imprisonment has been terminated by the release of
the alien from confinement. Parole, supervised release,
probation, or possibility of rearrest or further confinement in
respect of the same offense shall not be a ground for deferral
of deportation.
[(i) In the case of an alien who is convicted of an offense
which makes the alien subject to deportation, the Attorney
General shall begin any deportation proceeding as expeditiously
as possible after the date of the conviction.]
judicial review of orders of removal
Sec. 242. (a) Applicable Provisions.--
(1) General orders of removal.--Judicial review of a
final order of removal (other than an order of removal
without a hearing pursuant to section 235(b)(1)) is
governed only by chapter 158 of title 28 of the United
States Code, except as provided in subsection (b) and
except that the court may not order the taking of
additional evidence under section 2347(c) of such
title.
(2) Limitations on review relating to section
235(b)(1).--Notwithstanding any other provision of law,
no court shall have jurisdiction to review--
(A) except as provided in subsection (f), any
individual determination or to entertain any
other cause or claim arising from or relating
to the implementation or operation of an order
of removal pursuant to section 235(b)(1),
(B) a decision by the Attorney General to
invoke the provisions of such section,
(C) the application of such section to
individual aliens, including the determination
made under section 235(b)(1)(B), or
(D) procedures and policies adopted by the
Attorney General to implement the provisions of
section 235(b)(1).
(3) Treatment of certain decisions.--No alien shall
have a right to appeal from a decision of an
immigration judge which is based solely on a
certification described in section 240(c)(1)(B).
(b) Requirements for Orders of Removal.--With respect to
review of an order of removal under subsection (a)(1), the
following requirements apply:
(1) Deadline.--The petition for review must be filed
not later than 30 days after the date of the final
order of removal.
(2) Venue and forms.--The petition for review shall
be filed with the court of appeals for the judicial
circuit in which the immigration judge completed the
proceedings. The record and briefs do not have to be
printed. The court of appeals shall review the
proceeding on a typewritten record and on typewritten
briefs.
(3) Service.--
(A) In general.--The respondent is the
Attorney General. The petition shall be served
on the Attorney General and on the officer or
employee of the Service in charge of the
Service district in which the initial
proceedings under section 240 were conducted.
(B) Stay of order.--
(i) In general.--Except as provided
in clause (ii), service of the petition
on the officer or employee stays the
removal of an alien pending the court's
decision on the petition, unless the
court orders otherwise.
(ii) Exception.--If the alien has
been convicted of an aggravated felony,
or the alien has been ordered removed
pursuant to a finding that the alien is
inadmissible under section 212, service
of the petition does not stay the
removal unless the court orders
otherwise.
(4) Decision.--Except as provided in paragraph
(5)(B)--
(A) the court of appeals shall decide the
petition only on the administrative record on
which the order of removal is based,
(B) the administrative findings of fact are
conclusive if supported by reasonable,
substantial, and probative evidence on the
record considered as a whole, and
(C) a decision that an alien is not eligible
for admission to the United States is
conclusive unless manifestly contrary to law.
(5) Treatment of nationality claims.--
(A) Court determination if no issue of
fact.--If the petitioner claims to be a
national of the United States and the court of
appeals finds from the pleadings and affidavits
that no genuine issue of material fact about
the petitioner's nationality is presented, the
court shall decide the nationality claim.
(B) Transfer if issue of fact.--If the
petitioner claims to be a national of the
United States and the court of appeals finds
that a genuine issue of material fact about the
petitioner's nationality is presented, the
court shall transfer the proceeding to the
district court of the United States for the
judicial district in which the petitioner
resides for a new hearing on the nationality
claim and a decision on that claim as if an
action had been brought in the district court
under section 2201 of title 28, United States
Code.
(C) Limitation on determination.--The
petitioner may have such nationality claim
decided only as provided in this paragraph.
(6) Consolidation with review of motions to reopen or
reconsider.--When a petitioner seeks review of an order
under this section, any review sought of a motion to
reopen or reconsider the order shall be consolidated
with the review of the order.
(7) Challenge to validity of orders in certain
criminal proceedings.--
(A) In general.--If the validity of an order
of removal has not been judicially decided, a
defendant in a criminal proceeding charged with
violating section 243(a) may challenge the
validity of the order in the criminal
proceeding only by filing a separate motion
before trial. The district court, without a
jury, shall decide the motion before trial.
(B) Claims of united states nationality.--If
the defendant claims in the motion to be a
national of the United States and the district
court finds that--
(i) no genuine issue of material fact
about the defendant's nationality is
presented, the court shall decide the
motion only on the administrative
record on which the removal order is
based and the administrative findings
of fact are conclusive if supported by
reasonable, substantial, and probative
evidence on the record considered as a
whole; or
(ii) a genuine issue of material fact
about the defendant's nationality is
presented, the court shall hold a new
hearing on the nationality claim and
decide that claim as if an action had
been brought under section 2201 of
title 28, United States Code.
The defendant may have such nationality claim
decided only as provided in this subparagraph.
(C) Consequence of invalidation.--If the
district court rules that the removal order is
invalid, the court shall dismiss the indictment
for violation of section 243(a). The United
States Government may appeal the dismissal to
the court of appeals for the appropriate
circuit within 30 days after the date of the
dismissal.
(D) Limitation on filing petitions for
review.--The defendant in a criminal proceeding
under section 243(a) may not file a petition
for review under subsection (a) during the
criminal proceeding.
(8) Construction.--This subsection--
(A) does not prevent the Attorney General,
after a final order of removal has been issued,
from detaining the alien under section 241(a);
(B) does not relieve the alien from complying
with section 241(a)(4) and section 243(g); and
(C) except as provided in paragraph (3), does
not require the Attorney General to defer
removal of the alien.
(c) Requirements for Petition.--A petition for review or for
habeas corpus of an order of removal shall state whether a
court has upheld the validity of the order, and, if so, shall
state the name of the court, the date of the court's ruling,
and the kind of proceeding.
(d) Review of Final Orders.--A court may review a final order
of removal only if--
(1) the alien has exhausted all administrative
remedies available to the alien as of right, and
(2) 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.
(e) Limited Review for Non-Permanent Residents Convicted of
Aggravated Felonies.--
(1) In general.--A petition for review filed by an
alien against whom a final order of removal has been
issued under section 238 may challenge only whether--
(A) the alien is the alien described in the
order,
(B) the alien is an alien described in
section 238(b)(2) and has been convicted after
entry into the United States of an aggravated
felony, and
(C) proceedings against the alien complied
with section 238(b)(4).
(2) Limited jurisdiction.--A court reviewing the
petition has jurisdiction only to review the issues
described in paragraph (1).
(f) Judicial Review of Orders Under Section 235(b)(1).--
(1) Application.--The provisions of this subsection
apply with respect to judicial review of orders of
removal effected under section 235(b)(1).
(2) Limitations on relief.--Regardless of the nature
of the action or claim and regardless of the identity
of the party or parties bringing the action, no court
shall have jurisdiction or authority to enter
declaratory, injunctive, or other equitable relief not
specifically authorized in this subsection, or to
certify a class under Rule 23 of the Federal Rules of
Civil Procedure.
(3) Limitation to habeas corpus.--Judicial review of
any matter, cause, claim, or individual determination
made or arising under or pertaining to section
235(b)(1) shall only be available in habeas corpus
proceedings, and shall be limited to determinations
of--
(A) whether the petitioner is an alien,
(B) whether the petitioner was ordered
removed under such section, and
(C) whether the petitioner can prove by a
preponderance of the evidence that the
petitioner is an alien lawfully admitted for
permanent residence and is entitled to such
further inquiry as prescribed by the Attorney
General pursuant to section 235(b)(1)(C).
(4) Decision.--In any case where the court determines
that the petitioner--
(A) is an alien who was not ordered removed
under section 235(b)(1), or
(B) has demonstrated by a preponderance of
the evidence that the alien is a lawful
permanent resident,
the court may order no remedy or relief other than to
require that the petitioner be provided a hearing in
accordance with section 240. Any alien who is provided
a hearing under section 240 pursuant to this paragraph
may thereafter obtain judicial review of any resulting
final order of removal pursuant to subsection (a)(1).
(5) Scope of inquiry.--In determining whether an
alien has been ordered removed under section 235(b)(1),
the court's inquiry shall be limited to whether such an
order in fact was issued and whether it relates to the
petitioner. There shall be no review of whether the
alien is actually inadmissible or entitled to any
relief from removal.
(g) 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 of chapter 4 of title II, as
amended by the Immigration in the National Interest Act of
1995, other than with respect to the application of such
provisions to an individual alien against whom proceedings
under such chapter have been initiated.
[deportation procedures
[Sec. 242B. (a) Notices.--
[(1) Order to show cause.--In deportation proceedings
under section 242, written notice (in this section
referred to as an ``order to show cause'') shall be
given in person to the alien (or, if personal service
is not practicable, such notice shall be given by
certified mail to the alien or to the alien's counsel
of record, if any) specifying the following:
[(A) The nature of the proceedings against
the alien.
[(B) The legal authority under which the
proceedings are conducted.
[(C) The acts or conduct alleged to be in
violation of law.
[(D) The charges against the alien and the
statutory provisions alleged to have been
violated.
[(E) The alien may be represented by counsel
and the alien will be provided a list of
counsel prepared under subsection (b)(2).
[(F)(i) The requirement that the alien must
immediately provide (or have provided) the
Attorney General with a written record of an
address and telephone number (if any) at which
the alien may be contacted respecting
proceedings under section 242.
[(ii) The requirement that the alien must
provide the Attorney General immediately with a
written record of any change of the alien's
address or telephone number.
[(iii) The consequences under subsection
(c)(2) of failure to provide address and
telephone information pursuant to this
subparagraph.
[(2) Notice of time and place of proceedings.--In
deportation proceedings under section 242--
[(A) written notice shall be given in person
to the alien (or, if personal service is not
practicable, written notice shall be given by
certified mail to the alien or to the alien's
counsel of record, if any), in the order to
show cause or otherwise, of--
[(i) the time and place at which the
proceedings will be held, and
[(ii) the consequences under
subsection (c) of the failure, except
under exceptional circumstances, to
appear at such proceedings; and
[(B) in the case of any change or
postponement in the time and place of such
proceedings, written notice shall be given in
person to the alien (or, if personal service is
not practicable, written notice shall be given
by certified mail to the alien or to the
alien's counsel of record, if any) of--
[(i) the new time or place of the
proceedings, and
[(ii) the consequences under
subsection (c) of failing, except under
exceptional circumstances, to attend
such proceedings.
In the case of an alien not in detention, a written
notice shall not be required under this paragraph if
the alien has failed to provide the address required
under subsection (a)(1)(F).
[(3) Form of information.--Each order to show cause
or other notice under this subsection--
[(A) shall be in English and Spanish, and
[(B) shall specify that the alien may be
represented by an attorney in deportation
proceedings under section 242 and will be
provided, in accordance with subsection (b)(1),
a period of time in order to obtain counsel and
a current list described in subsection (b)(2).
[(4) Central address files.--The Attorney General
shall create a system to record and preserve on a
timely basis notices of addresses and telephone numbers
(and changes) provided under paragraph (1)(F).
[(b) Securing of Counsel.--
[(1) In general.--In order that an alien be permitted
the opportunity to secure counsel before the first
hearing date in proceedings under section 242, the
hearing date shall not be scheduled earlier than 14
days after the service of the order to show cause,
unless the alien requests in writing an earlier hearing
date.
[(2) Current lists of counsel.--The Attorney General
shall provide for lists (updated not less often than
quarterly) of persons who have indicated their
availability to represent pro bono aliens in
proceedings under section 242. Such lists shall be
provided under subsection (a)(1)(E) and otherwise made
generally available.
[(c) Consequences of Failure to Appear.--
[(1) In general.--Any alien who, after written notice
required under subsection (a)(2) has been provided to
the alien or the alien's counsel of record, does not
attend a proceeding under section 242, shall be ordered
deported under section 242(b)(1) in absentia if the
Service establishes by clear, unequivocal, and
convincing evidence that the written notice was so
provided and that the alien is deportable. The written
notice by the Attorney General shall be considered
sufficient for purposes of this paragraph if provided
at the most recent address provided under subsection
(a)(1)(F).
[(2) No notice if failure to provide address
information.--No written notice shall be required under
paragraph (1) if the alien has failed to provide the
address required under subsection (a)(1)(F).
[(3) Rescission of order.--Such an order may be
rescinded only--
[(A) upon a motion to reopen filed within 180
days after the date of the order of deportation
if the alien demonstrates that the failure to
appear was because of exceptional circumstances
(as defined in subsection (f)(2)), or
[(B) upon a motion to reopen filed at any
time if the alien demonstrates that the alien
did not receive notice in accordance with
subsection (a)(2) or the alien demonstrates
that the alien was in Federal or State custody
and did not appear through no fault of the
alien.
The filing of the motion to reopen described in
subparagraph (A) or (B) shall stay the deportation of
the alien pending disposition of the motion.
[(4) Effect on judicial review.--Any petition for
review under section 106 of an order entered in
absentia under this subsection shall, notwithstanding
such section, be filed not later than 60 days (or 30
days in the case of an alien convicted of an aggravated
felony) after the date of the final order of
deportation and shall (except in cases described in
section 106(a)(5)) be confined to the issues of the
validity of the notice provided to the alien, to the
reasons for the alien's not attending the proceeding,
and to whether or not clear, convincing, and
unequivocal evidence of deportability has been
established.
[(d) Treatment of Frivolous Behavior.--The Attorney General
shall, by regulation--
[(1) define in a proceeding before a special inquiry
officer or before an appellate administrative body
under this title, frivolous behavior for which
attorneys may be sanctioned,
[(2) specify the circumstances under which an
administrative appeal of a decision or ruling will be
considered frivolous and will be summarily dismissed,
and
[(3) impose appropriate sanctions (which may include
suspension and disbarment) in the case of frivolous
behavior.
Nothing in this subsection shall be construed as limiting the
authority of the Attorney General to take actions with respect
to inappropriate behavior.
[(e) Limitation on Discretionary Relief for Failure to
Appear.--
[(1) At deportation proceedings.--Any alien against
whom a final order of deportation is entered in
absentia under this section and who, at the time of the
notice described in subsection (a)(2), was provided
oral notice, either in the alien's native language or
in another language the alien understands, of the time
and place of the proceedings and of the consequences
under this paragraph of failing, other than because of
exceptional circumstances (as defined in subsection
(f)(2)) to attend a proceeding under section 242, shall
not be eligible for relief described in paragraph (5)
for a period of 5 years after the date of the entry of
the final order of deportation.
[(2) Voluntary departure.--
[(A) In general.--Subject to subparagraph
(B), any alien allowed to depart voluntarily
under section 244(e)(1) or who has agreed to
depart voluntarily at his own expense under
section 242(b)(1) who remains in the United
States after the scheduled date of departure,
other than because of exceptional
circumstances, shall not be eligible for relief
described in paragraph (5) for a period of 5
years after the scheduled date of departure or
the date of unlawful reentry, respectively.
[(B) Written and oral notice required.--
Subparagraph (A) shall not apply to an alien
allowed to depart voluntarily unless, before
such departure, the Attorney General has
provided written notice to the alien in English
and Spanish and oral notice either in the
alien's native language or in another language
the alien understands of the consequences under
subparagraph (A) of the alien's remaining in
the United States after the scheduled date of
departure, other than because of exceptional
circumstances.
[(3) Failure to appear under deportation order.--
[(A) In general.--Subject to subparagraph
(B), any alien against whom a final order of
deportation is entered under this section and
who fails, other than because of exceptional
circumstances, to appear for deportation at the
time and place ordered shall not be eligible
for relief described in paragraph (5) for a
period of 5 years after the date the alien was
required to appear for deportation.
[(B) Written and oral notice required.--
Subparagraph (A) shall not apply to an alien
against whom a deportation order is entered
unless the Attorney General has provided,
orally in the alien's native language or in
another language the alien understands and in
the final order of deportation under this
section of the consequences under subparagraph
(A) of the alien's failure, other than because
of exceptional circumstances, to appear for
deportation at the time and place ordered.
[(4) Failure to appear for asylum hearing.--
[(A) In general.--Subject to subparagraph
(B), any alien--
[(i) whose period of authorized stay
(if any) has expired through the
passage of time,
[(ii) who has filed an application
for asylum, and
[(iii) who fails, other than because
of exceptional circumstances, to appear
at the time and place specified for the
asylum hearing,
shall not be eligible for relief described in
paragraph (5) for a period of 5 years after the
date of the asylum hearing.
[(B) Written and oral notice required.--
Subparagraph (A) shall not apply in the case of
an alien with respect to a failure to be
present at a hearing unless--
[(i) written notice in English and
Spanish, and oral notice either in the
alien's native language or in another
language the alien understands, was
provided to the alien of the time and
place at which the asylum hearing will
be held, and in the case of any change
or postponement in such time or place,
written notice in English and Spanish,
and oral notice either in the alien's
native language or in another language
the alien understands, was provided to
the alien of the new time or place of
the hearing; and
[(ii) notices under clause (i)
specified the consequences under
subparagraph (A) of failing, other than
because of exceptional circumstances,
to attend such hearing.
[(5) Relief covered.--The relief described in this
paragraph is--
[(A) voluntary departure under section
242(b)(1),
[(B) suspension of deportation or voluntary
departure under section 244, and
[(C) adjustment or change of status under
section 245, 248, or 249.
[(f) Definitions.--In this section:
[(1) The term ``certified mail'' means certified
mail, return receipt requested.
[(2) The term ``exceptional circumstances'' refers to
exceptional circumstances (such as serious illness of
the alien or death of an immediate relative of the
alien, but not including less compelling circumstances)
beyond the control of the alien.
[countries to which aliens shall be deported; cost of deportation
[Sec. 243. (a) The deportation of an alien in the United
States provided for in this Act, or any other Act or treaty,
shall be directed by the Attorney General to a country promptly
designated by the alien if that country is willing to accept
him into its territory, unless the Attorney General, in his
discretion, concludes that deportation to such country would be
prejudicial to the interests of the United States. No alien
shall be permitted to make more than one such designation, nor
shall any alien designate, as the place to which he wishes to
be deported, any foreign territory contiguous to the United
States or any island adjacent thereto or adjacent to the United
States unless such alien is a native, citizen, subject, or
national of, or had a residence in such designated foreign
contiguous territory or adjacent island. If the government of
the country designated by the alien fails finally to advise the
Attorney General within three months following original inquiry
whether that government will or will not accept such alien into
its territory, such designation may thereafter be disregarded.
Thereupon deportation of such alien shall be directed to any
country of which such alien is a subject, national, or citizen
if such country is willing to accept him into its territory. If
the government of such country fails finally to advise the
Attorney General or the alien within three months following the
date of original inquiry, or within such other period as the
Attorney General shall deem reasonable under the circumstances
in a particular case, whether that government will or will not
accept such alien into its territory, then such deportation
shall be directed by the Attorney General within his discretion
and without necessarily giving any priority or preference
because of their order as herein set forth either--
[(1) to the country from which such alien last
entered the United States;
[(2) to the country in which is located the foreign
port at which such alien embarked for the United States
or for foreign contiguous territory;
[(3) to the country in which he was born;
[(4) to the country in which the place of his birth
is situated at the time he is ordered deported;
[(5) to any country in which he resided prior to
entering the country from which he entered the United
States;
[(6) to the country which had sovereignty over the
birthplace of the alien at the time of his birth; or
[(7) if deportation to any of the foregoing places or
countries is impracticable, inadvisable, or impossible,
then to any country which is willing to accept such
alien into its territory.
[(b) If the United States is at war and the deportation, in
accordance with the provisions of subsection (a), of any alien
who is deportable under any law of the United States shall be
found by the Attorney General to be impracticable, inadvisable,
inconvenient, or impossible because of enemy occupation of the
country from which such alien came or wherein is located the
foreign port at which he embarked for the United States or
because of reasons connected with the war, such alien may, in
the discretion of the Attorney General, be deported as follows:
[(1) If such alien is a citizen or subject of a
country whose recognized government is in exile, to the
country in which is located that government in exile if
that country will permit him to enter its territory; or
[(2) if such alien is a citizen or subject of a
country whose recognized government is not in exile,
then to a country or any political or territorial
subdivision thereof which is proximate to the country
of which the alien is a citizen or subject, or, with
the consent of the country of which the alien is a
citizen or subject, to any other country.
[(c) If deportation proceedings are instituted at any time
within five years after the entry of the alien for causes
existing prior to or at the time of entry, the cost of removal
to the port of deportation shall be at the expense of the
appropriation for the enforcement of this Act, and the
deportation from such port shall be at the expense of the owner
or owners of the vessels, aircraft, or other transportation
lines by which such alien came to the United States, or if in
the opinion of the Attorney General that is not practicable, at
the expense of the appropriation for the enforcement of this
Act: Provided, That the costs of the deportation of any such
alien from such port shall not be assessed against the owner or
owners of the vessels, aircraft, or other transportation lines
in the case of any alien who arrived in possession of a valid
unexpired immigrant visa and who was inspected and admitted to
the United States for permanent residence. In the case of an
alien crewman, if deportation proceedings are instituted at any
time within five years after the granting of the last
conditional permit to land temporarily under the provisions of
section 252, the cost of removal to the port of deportation
shall be at the expense of the appropriation for the
enforcement of this Act and the deportation from such port
shall be at the expense of the owner or owners of the vessels
or aircraft by which such alien came to the United States, or
if in the opinion of the Attorney General that is not
practicable, at the expense of the appropriation for the
enforcement of this Act.
[(d) If deportation proceedings are instituted later than
five years after the entry of the alien, or in the case of an
alien crewman later than five years after the granting of the
last conditional permit to land temporarily, the cost thereof
shall be payable from the appropriation for the enforcement of
this Act.
[(e) A failure or refusal on the part of the master,
commanding officer, agent, owner, charterer, or consignee of a
vessel, aircraft, or other transportation line to comply with
the order of the Attorney General to take on board, guard
safely, and transport to the destination specified any alien
ordered to be deported under the provisions of this Act, or a
failure or refusal by any such person to comply with an order
of the Attorney General to pay deportation expenses in
accordance with the requirements of this section, shall be
punished by the imposition of a penalty in the sum and manner
prescribed in section 237(b).
[(f) When in the opinion of the Attorney General the mental
or physical condition of an alien being deported is such as to
require personal care and attendance, the Attorney General
shall, when necessary, employ a suitable person for that
purpose who shall accompany such alien to his final
destination, and the expense incident to such service shall be
defrayed in the same manner as the expense of deporting the
accompanied alien is defrayed, and any failure or refusal to
defray such expenses shall be punished in the manner prescribed
by subsection (e) of this section.
[(g) Upon the notification by the Attorney General that any
country upon request denies or unduly delays acceptance of the
return of any alien who is a national, citizen, subject, or
resident thereof, the Secretary of State shall instruct
consular officers performing their duties in the territory of
such country to discontinue the issuance of immigrant visas to
nationals, citizens, subjects, or residents of such country,
until such time as the Attorney General shall inform the
Secretary of State that such country has accepted such alien.
[(h)(1) The Attorney General shall not deport or return any
alien (other than an alien described in section 241(a)(4)(D))
to a country if the Attorney General determines that such
alien's life or freedom would be threatened in such country on
account of race, religion, nationality, membership in a
particular social group, or political opinion.
[(2) Paragraph (1) shall not apply to any alien if the
Attorney General determines that--
[(A) the 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;
[(B) the alien, having been convicted by a final
judgment of a particularly serious crime, constitutes a
danger to the community of the United States;
[(C) there are serious reasons for considering that
the alien has committed a serious nonpolitical crime
outside the United States prior to the arrival of the
alien in the United States; or
[(D) there are reasonable grounds for regarding the
alien as a danger to the security of the United States.
For purposes of subparagraph (B), an alien who has been
convicted of an aggravated felony shall be considered to have
committed a particularly serious crime.]
penalties related to removal
Sec. 243. (a) Penalty for Failure to Depart.--
(1) In general.--Any alien against whom a final order
of removal is outstanding by reason of being a member
of any of the classes described in section 237(a),
who--
(A) willfully fails or refuses to depart from
the United States within a period of 90 days
from the date of the final order of removal
under administrative processes, or if judicial
review is had, then from the date of the final
order of the court,
(B) willfully fails or refuses to make timely
application in good faith for travel or other
documents necessary to the alien's departure,
(C) connives or conspires, or takes any other
action, designed to prevent or hamper or with
the purpose of preventing or hampering the
alien's departure pursuant to such, or
(D) willfully fails or refuses to present
himself or herself for removal at the time and
place required by the Attorney General pursuant
to such order,
shall be fined under title 18, United States Code, or
imprisoned not more than four years (or 10 years if the
alien is a member of any of the classes described in
paragraph (1)(E), (2), (3), or (4) of section 237(a)),
or both.
(2) Exception.--It is not a violation of paragraph
(1) to take any proper steps for the purpose of
securing cancellation of or exemption from such order
of removal or for the purpose of securing the alien's
release from incarceration or custody.
(3) Suspension.--The court may for good cause suspend
the sentence of an alien under this subsection and
order the alien's release under such conditions as the
court may prescribe. In determining whether good cause
has been shown to justify releasing the alien, the
court shall take into account such factors as--
(A) the age, health, and period of detention
of the alien;
(B) the effect of the alien's release upon
the national security and public peace or
safety;
(C) the likelihood of the alien's resuming or
following a course of conduct which made or
would make the alien deportable;
(D) the character of the efforts made by such
alien himself and by representatives of the
country or countries to which the alien's
removal is directed to expedite the alien's
departure from the United States;
(E) the reason for the inability of the
Government of the United States to secure
passports, other travel documents, or removal
facilities from the country or countries to
which the alien has been ordered removed; and
(F) the eligibility of the alien for
discretionary relief under the immigration
laws.
(b) Willful Failure to Comply with Terms of Release Under
Supervision.--An alien who shall willfully fail to comply with
regulations or requirements issued pursuant to section
241(a)(3) or knowingly give false information in response to an
inquiry under such section shall be fined not more than $1,000
or imprisoned for not more than one year, or both.
(c) Penalties Relating to Vessels and Aircraft.--
(1) Civil penalties.--
(A) Failure to carry out certain orders.--If
the Attorney General is satisfied that a person
has violated subsection (d) or (e) of section
241, the person shall pay to the Commissioner
the sum of $2,000 for each violation.
(B) Failure to remove alien stowaways.--If
the Attorney General is satisfied that a person
has failed to remove an alien stowaway as
required under section 241(d)(2), the person
shall pay to the Commissioner the sum of $5,000
for each alien stowaway not removed.
(C) No compromise.--The Attorney General may
not compromise the amount of such penalty under
this paragraph.
(2) Clearing vessels and aircraft.--
(A) Clearance before decision on liability.--
A vessel or aircraft may be granted clearance
before a decision on liability is made under
paragraph (1) only if a bond approved by the
Attorney General or an amount sufficient to pay
the civil penalty is deposited with the
Commissioner.
(B) Prohibition on clearance while penalty
unpaid.--A vessel or aircraft may not be
granted clearance if a civil penalty imposed
under paragraph (1) is not paid.
(d) Discontinuing Granting Visas to Nationals of Country
Denying or Delaying Accepting Alien.--On being notified by the
Attorney General that the government of a foreign country
denies or unreasonably delays accepting an alien who is a
citizen, subject, national, or resident of that country after
the Attorney General asks whether the government will accept
the alien under this section, the Secretary of State shall
order consular officers in that foreign country to discontinue
granting immigrant visas or nonimmigrant visas, or both, to
citizens, subjects, nationals, and residents of that country
until the Attorney General notifies the Secretary that the
country has accepted the alien.
[suspension of deportation; voluntary departure
[Sec. 244. (a) As hereinafter prescribed in this section, the
Attorney General may, in his discretion, suspend deportation
and adjust the status to that of an alien lawfully admitted for
permanent residence, in the case of an alien (other than an
alien described in section 241(a)(4)(D))) who applies to the
Attorney General for suspension of deportation and--
[(1) is deportable under any law of the United States
except the provisions specified in paragraph (2) of
this subsection; has been physically present in the
United States for a continuous period of not less than
seven years immediately preceding the date of such
application, and proves that during all of such period
he was and is a person of good moral character; and is
a person whose deportation would, in the opinion of the
Attorney General, result in extreme hardship to the
alien or to his spouse, parent, or child, who is a
citizen of the United States or an alien lawfully
admitted for permanent residence;
[(2) is deportable under paragraph (2), (3), or (4)
of section 241(a); has been physically present in the
United States for a continuous period of not less than
10 years immediately following the commission of an
act, or the assumption of a status, constituting a
ground for deportation, and proves that during all of
such period he has been and is a person of good moral
character; and is a person whose deportation would, in
the opinion of the Attorney General, result in
exceptional and extremely unusual hardship to the alien
or to his spouse, parent, or child, who is a citizen of
the United States or an alien lawfully admitted for
permanent residence; or
[(3) is deportable under any law of the United States
except section 241(a)(1)(G) and the provisions
specified in paragraph (2); has been physically present
in the United States for a continuous period of not
less than 3 years immediately preceding the date of
such application; has been battered or subjected to
extreme cruelty in the United States by a spouse or
parent who is a United States citizen or lawful
permanent resident (or is the parent of a child of a
United States citizen or lawful permanent resident and
the child has been battered or subjected to extreme
cruelty in the United States by such citizen or
permanent resident parent); and proves that during all
of such time in the United States the alien was and is
a person of good moral character; and is a person whose
deportation would, in the opinion of the Attorney
General, result in extreme hardship to the alien or the
alien's parent or child.
[(b)(1) The requirement of continuous physical presence in
the United States specified in paragraphs (1) and (2) of
subsection (a) of this section shall not be applicable to an
alien who (A) has served for a minimum period of twenty-four
months in an active-duty status in the Armed Forces of the
United States and, if separated from such service, was
separated under honorable conditions, and (B) at the time of
his enlistment or induction was in the United States.
[(2) An alien shall not be considered to have failed to
maintain continuous physical presence in the United States
under paragraphs (1) and (2) of subsection (a) if the absence
from the United States was brief, casual, and innocent and did
not meaningfully interrupt the continuous physical presence.
[(c) Upon application by any alien who is found by the
Attorney General to meet the requirements of subsection (a) of
this section the Attorney General may in his discretion suspend
deportation of such alien.
[(d) Upon the cancellation of deportation in the case of any
alien under this section, the Attorney General shall record the
alien's lawful admission for permanent residence as of the date
the cancellation of deportation of such alien is made.
[(e)(1) Except as provided in paragraph (2), the Attorney
General may, in his discretion, permit any alien under
deportation proceedings, other than an alien within the
provisions of paragraph (2), (3), or (4) of section 241(a) (and
also any alien within the purview of such paragraphs if he is
also within the provisions of paragraph (2) of subsection (a)
of this section), to depart voluntarily from the United States
at his own expense in lieu of deportation if such alien shall
establish to the satisfaction of the Attorney General that he
is, and has been, a person of good moral character for at least
five years immediately preceding his application for voluntary
departure under this subsection.
[(2) The authority contained in paragraph (1) shall not apply
to any alien who is deportable because of a conviction for an
aggravated felony.
[(f) The provisions of subsection (a) shall not apply to an
alien who--
[(1) entered the United States as a crewman
subsequent to June 30, 1964;
[(2) was admitted to the United States as a
nonimmigrant exchange alien as defined in section
101(a)(15)(J), or has acquired the status of such a
nonimmigrant exchange alien after admission, in order
to receive graduate medical education, or training,
regardless of whether or not the alien is subject to or
has fulfilled the two-year foreign residence
requirement of section 212(e); or
[(3)(A) was admitted to the United States as a
nonimmigrant exchange alien as defined in section
101(a)(15)(J) or has acquired the status of such a
nonimmigrant exchange alien after admission other than
to receive graduate medical education or training, (B)
is subject to the two-year foreign residence
requirement of section 212(e), and (C) has not
fulfilled that requirement or received a waiver
thereof.
[(g) In acting on applications under subsection (a)(3), 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 Attorney General.]
temporary protected status
Sec. [244A.] 244. (a) Granting of Status.--
(1) In general.--In the case of an alien who is a
national of a foreign state designated under subsection
(b) (or in the case of an alien having no nationality,
is a person who last habitually resided in such
designated state) and who meets the requirements of
subsection (c), the Attorney General, in accordance
with this section--
(A) may grant the alien temporary protected
status in the United States and shall not
[deport] remove the alien from the United
States during the period in which such status
is in effect, and
(B) shall authorize the alien to engage in
employment in the United States and provide the
alien with an ``employment authorized''
endorsement or other appropriate work permit.
(2) Duration of work authorization.--Work
authorization provided under this section shall be
effective throughout the period the alien is in
temporary protected status under this section.
(3) Notice.--
(A) Upon the granting of temporary protected
status under this section, the Attorney General
shall provide the alien with information
concerning such status under this section.
(B) If, at the time of initiation of a
[deportation] removal proceeding against an
alien, the foreign state (of which the alien is
a national) is designated under subsection (b),
the Attorney General shall promptly notify the
alien of the temporary protected status that
may be available under this section.
(C) If, at the time of designation of a
foreign state under subsection (b), an alien
(who is a national of such state) is in a
[deportation] removal proceeding under this
title, the Attorney General shall promptly
notify the alien of the temporary protected
status that may be available under this
section.
* * * * * * *
(b) Designations.--
(1) * * *
* * * * * * *
(5) Review.--
(A) Designations.--There is no judicial
review of any determination of the Attorney
General with respect to the designation, or
termination or extension of a designation, of a
foreign state under this subsection.
(B) Application to individuals.--The Attorney
General shall establish an administrative
procedure for the review of the denial of
benefits to aliens under this subsection. Such
procedure shall not prevent an alien from
asserting protection under this section in
[deportation] removal proceedings if the alien
demonstrates that the alien is a national of a
state designated under paragraph (1).
(c) Aliens Eligible for Temporary Protected Status.--
(1) * * *
(2) Eligibility standards.--
(A) * * *
(B) Aliens ineligible.--An alien shall not be
eligible for temporary protected status under
this section if the Attorney General finds
that--
(i) the alien has been convicted of
any felony or 2 or more misdemeanors
committed in the United States, or
(ii) the alien is described in
section [243(h)(2)] 208(b)(2)(A).
* * * * * * *
(e) Relation of Period of Temporary Protected Status to
[Suspension of Deportation] Cancellation of Removal.--With
respect to an alien granted temporary protected status under
this section, the period of such status shall not be counted as
a period of physical presence in the United States for purposes
of section [244(a)] 240A(a), unless the Attorney General
determines that extreme hardship exists. Such period shall not
cause a break in the continuity of residence of the period
before and after such period for purposes of such section.
* * * * * * *
adjustment of status of nonimmigrant to that of person admitted for
permanent residence
Sec. 245. (a) * * *
* * * * * * *
(c) Subsection (a) shall not be applicable to (1) an alien
crewman; (2) an alien (other than [an immediate relative as
defined in section 201(b)] a spouse or child of a citizen of
the United States under section 201(b) or a parent of a citizen
under section 203(a)(2) or a special immigrant described in
section [101(a)(27)(H), (I),] 101(a)(27)(I), (J), or (K)) who
hereafter continues in or accepts unauthorized employment prior
to filing an application for adjustment of status or who is in
unlawful immigration status on the date of filing the
application for adjustment of status or who has failed (other
than through no fault of his own or for technical reasons) to
maintain continuously a lawful status since entry into the
United States; (3) any alien admitted in transit without visa
under section 212(d)(4)(C); (4) an alien (other than [an
immediate relative as defined in section 201(b)] a spouse or
child of a citizen of the United States under section 201(b) or
a parent of a citizen under section 203(a)(2)) who was admitted
as a nonimmigrant visitor without a visa under section 212(l)
or section 217; [or] (5) an alien who was admitted as a
nonimmigrant described in section 101(a)(15)(S), or (6) an
alien who is deportable under section 237(a)(4)(B).
(d) The Attorney General may not adjust, under subsection
(a), the status of an alien lawfully admitted to the United
States for permanent residence on a conditional basis under
section 216. The Attorney General may not adjust, under
subsection (a), the status of a nonimmigrant alien described in
section 101(a)(15)(K) (relating to an alien fiancee or fiance
or the minor child of such alien) except to that of an alien
lawfully admitted to the United States on a conditional basis
under section 216 as a result of the marriage of the
nonimmigrant (or, in the case of a minor child, the parent) to
the citizen who filed the petition to accord that alien's
nonimmigrant status under section 101(a)(15)(K).
(e)(1) Except as provided in paragraph (3), an alien who is
seeking to receive an immigrant visa on the basis of a marriage
which was entered into during the period described in paragraph
(2) may not have the alien's status adjusted under subsection
(a).
(2) The period described in this paragraph is the period
during which administrative or judicial proceedings are pending
regarding the alien's right to [enter] be admitted or remain in
the United States.
(3) Paragraph (1) and section 204(g) shall not apply with
respect to a marriage if the alien establishes by clear and
convincing evidence to the satisfaction of the Attorney General
that the marriage was entered into in good faith and in
accordance with the laws of the place where the marriage took
place and the marriage was not entered into for the purpose of
procuring the alien's [entry] 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 spouse or alien son
or daughter. In accordance with regulations, there shall be
only one level of administrative appellate review for each
alien under the previous sentence.
(f) The Attorney General may not adjust, under subsection
(a), the status of an alien lawfully admitted to the United
States for permanent residence on a conditional basis under
section 216A.
* * * * * * *
(i)(1) Notwithstanding the provisions of subsections (a) and
(c) of this section, an alien physically present in the United
States who--
(A) entered the United States without inspection; or
(B) is within one of the classes enumerated in
subsection (c) of this section
may apply to the Attorney General for the adjustment of his or
her status to that of an alien lawfully admitted for permanent
residence. The Attorney General may accept such application
only if the alien remits with such application a sum equalling
[five times the fee required for the processing of applications
under this section as of the date of receipt of the
application,] $2,500 but such sum shall not be required from a
child under the age of seventeen, or an alien who is the spouse
or unmarried child of an individual who obtained temporary or
permanent resident status under section 210 or 245A of the
Immigration and Nationality Act or section 202 of the
Immigration Reform and Control Act of 1986 at any date, who--
(i) as of May 5, 1988, was the unmarried child or
spouse of the individual who obtained temporary or
permanent resident status under section 210 or 245A of
the Immigration and Nationality Act or section 202 of
the Immigration Reform and Control Act of 1986;
(ii) entered the United States before May 5, 1988,
resided in the United States on May 5, 1988, and is not
a lawful permanent resident; and
(iii) applied for benefits under section 301(a) of
the Immigration Act of 1990. The sum specified herein
shall be in addition to the fee normally required for
the processing of an application under this section.
(2) Upon receipt of such an application and the sum hereby
required, the Attorney General may adjust the status of the
alien to that of an alien lawfully admitted for permanent
residence if--
(A) the alien is eligible to receive an immigrant
visa and is admissible to the United States for
permanent residence; and
(B) an immigrant visa is immediately available to the
alien at the time the application is filed.
(3) Sums remitted to the Attorney General pursuant to
paragraphs (1) and (2) of this subsection shall be disposed of
by the Attorney General as provided in sections 286 (m), (n),
and (o) of this title.
[(i)] (j)(1) If, in the opinion of the Attorney General--
(A) a nonimmigrant admitted into the United States
under section 101(a)(15)(S)(i) has supplied information
described in subclause (I) of such section; and
* * * * * * *
(3) Upon the approval of adjustment of status under
[paragraphs (1) or (2)] paragraph (1) or (2), the Attorney
General shall record the alien's lawful admission for permanent
residence as of the date of such approval and the Secretary of
State shall reduce by one the number of visas authorized to be
issued under sections 201(d) and 203(b)[(4)](6) for the fiscal
year then current.
adjustment of status of certain entrants before january 1, 1982, to
that of person admitted for lawful residence
Sec. 245A. (a) Temporary Resident Status.--The Attorney
General shall adjust the status of an alien to that of an alien
lawfully admitted for temporary residence if the alien meets
the following requirements:
(1) Timely application.--
(A) During application period.--Except as
provided in subparagraph (B), the alien must
apply for such adjustment during the 12-month
period beginning on a date (not later than 180
days after the date of enactment of this
section) designated by the Attorney General.
(B) Application within 30 days of show-cause
order.--An alien who, at any time during the
first 11 months of the 12-month period
described in subparagraph (A), is the subject
of an order to show cause issued under section
242 (as in effect before October 1, 1996), must
make application under this section not later
than the end of the 30-day period beginning
either on the first day of such 12-month period
or on the date of the issuance of such order,
whichever day is later.
* * * * * * *
(c) Applications for Adjustment of Status.--
(1) * * *
* * * * * * *
(5) Confidentiality of information.--[Neither] (A)
Except as provided in this paragraph, neither the
Attorney General, nor any other official or employee of
the Department of Justice, or bureau or agency thereof,
may--
[(A)] (i) use the information furnished
pursuant to an application filed under this
section for any purpose other than to make a
determination on the application or for
enforcement of paragraph (6) or for the
preparation of reports to Congress under
section 404 of the Immigration Reform and
Control Act of 1986,
[(B)] (ii) make any publication whereby the
information furnished by any particular
individual can be identified, or
[(C)] (iii) permit anyone other than the
sworn officers and employees of the Department
or bureau or agency or, with respect to
applications filed with a designated entity,
that designated entity, to examine individual
applications[;].
[except that the]
(B) The Attorney General may provide, in the Attorney
General's discretion, for the furnishing of information
furnished under this section in the same manner and
circumstances as census information may be disclosed by
the Secretary of Commerce under section 8 of title 13,
United States Code.
(C) The Attorney General may authorize an application
to a Federal court of competent jurisdiction for, and a
judge of such court may grant, an order authorizing
disclosure of information contained in the application
of the alien under this section to be used--
(i) for identification of the alien when
there is reason to believe that the alien has
been killed or severely incapacitated; or
(ii) for criminal law enforcement purposes
against the alien whose application is to be
disclosed if the alleged criminal activity
occurred after the legalization application was
filed and such activity involves terrorist
activity or poses either an immediate risk to
life or to national security, or would be
prosecutable as an aggravated felony, but
without regard to the length of sentence that
could be imposed on the applicant.
(D) Anyone who uses, publishes, or permits
information to be examined in violation of this
paragraph shall be fined in accordance with title 18,
United States Code, or imprisoned not more than five
years, or both.
(E) Nothing in this paragraph shall preclude the
release for immigration enforcement purposes of the
following information contained in files or records of
the Service pertaining to the application:
(i) The immigration status of the applicant
on any given date after the date of filing the
application (including whether the applicant
was authorized to work) but only for purposes
of a determination of whether the applicant is
eligible for relief from deportation or removal
and not otherwise.
(ii) The date of the applicant's adjustment
(if any) to the status of an alien lawfully
admitted for permanent residence.
(iii) Information concerning whether the
applicant has been convicted of a crime
occurring after the date of filing the
application.
(iv) The date or disposition of the
application.
* * * * * * *
(f) Administrative and Judicial Review.--
(1) * * *
* * * * * * *
(4) Judicial review.--
(A) Limitation to review of deportation.--
There shall be judicial review of such a denial
only in the judicial review of an order of
deportation under section 106 (as in effect
before October 1, 1996).
* * * * * * *
rescission of adjustment of status
Sec. 246. (a) If, at any time within five years after the
status of a person has been otherwise adjusted under the
provisions of section 245 or 249 of this Act or any other
provision of law to that of an alien lawfully admitted for
permanent residence, it shall appear to the satisfaction of the
Attorney General that the person was not in fact eligible for
such adjustment of status, the Attorney General shall rescind
the action taken granting an adjustment of status to such
person and cancelling [deportation] removal in the case of such
person if that occurred and the person shall thereupon be
subject to all provisions of this Act to the same extent as if
the adjustment of status had not been made. Nothing in this
subsection shall require the Attorney General to rescind the
alien's status prior to commencement of procedures to remove
the alien under section 240, and an order of removal issued by
an immigration judge shall be sufficient to rescind the alien's
status.
* * * * * * *
adjustment of status of certain resident aliens to nonimmigrant status
Sec. 247. (a) The status of an alien lawfully admitted for
permanent residence shall be adjusted by the Attorney General,
under such regulations as he may prescribe, to that of a
nonimmigrant under paragraph (15)(A), (15)(E), or (15)(G) of
section 101(a), if such alien had at the time of [entry]
admission or subsequently acquires an occupational status which
would, if he were seeking admission to the United States,
entitle him to a nonimmigrant status under such sections. As of
the date of the Attorney General's order making such adjustment
of status, the Attorney General shall cancel the record of the
alien's admission for permanent residence, and the immigrant
status of such alien shall thereby be terminated.
* * * * * * *
change of nonimmigrant classification
Sec. 248. The Attorney General may, under such conditions as
he may prescribe, authorize a change from any nonimmigrant
classification to any other nonimmigrant classification in the
case of any alien lawfully admitted to the United States as a
nonimmigrant who is continuing to maintain that status, except
in the case of--
(1) an alien classified as a nonimmigrant under
subparagraph (C), (D), (K), or (S) of section
101(a)(15),
* * * * * * *
(4) an alien admitted as a nonimmigrant visitor
without a visa under section 212(l) or section 217.
Any alien whose status is changed under this section may apply
to the Secretary of State for a visa without having to leave
the United States and apply at the visa office.
record of admission for permanent residence in the case of certain
aliens who entered the united states prior to july 1, 1924 or january
1, 1972
Sec. 249. A record of lawful admission for permanent
residence may, in the discretion of the Attorney General and
under such regulations as he may prescribe, be made in the case
of any alien, as of the date of the approval of his application
or, if entry occurred prior to July 1, 1924, as of the date of
such entry, if no such record is otherwise available and such
alien shall satisfy the Attorney General that he is not
inadmissible under section 212(a)(3)(E) or under section 212(a)
insofar as it relates to criminals, procurers and other immoral
persons, subversives, violators of the narcotic laws or
smugglers of aliens, and he establishes that he--
(a) entered the United States prior to January 1,
1972;
(b) has had his residence in the United States
continuously since such entry;
(c) is a person of good moral character; and
(d) is not ineligible to citizenship and is not
deportable under section 237(a)(4)(B).
* * * * * * *
Chapter 6--Special Provisions Relating to Alien Crewmen
* * * * * * *
conditional permits to land temporarily
Sec. 252. (a) * * *
(b) Pursuant to regulations prescribed by the Attorney
General, any immigration officer may, in his discretion, if he
determines that an alien is not a bona fide crewman, or does
not intend to depart on the vessel or aircraft which brought
him, revoke the conditional permit to land which was granted
such crewman under the provisions of subsection (a)(1), take
such crewman into custody, and require the master or commanding
officer of the vessel or aircraft on which the crewman arrived
to receive and detain him on board such vessel or aircraft, if
practicable, and such crewman shall be [deported] removed from
the United States at the expense of the transportation line
which brought him to the United States. Until such alien is so
[deported] removed, any expenses of his detention shall be
borne by such transportation company. Nothing in this section
shall be construed to require the procedure prescribed in
section [242] 240 of this Act to cases falling within the
provisions of this subsection.
* * * * * * *
control of alien crewmen
Sec. 254. (a) The owner, agent, consignee, charterer, master,
or commanding officer of any vessel or aircraft arriving in the
United States from any place outside thereof who fails (1) to
detain on board the vessel, or in the case of an aircraft to
detain at a place specified by an immigration officer at the
expense of the airline, any alien crewman employed thereon
until an immigration officer has completely inspected such
alien crewman, including a physical examination by the medical
examiner, or (2) to detain any alien crewman on board the
vessel, or in the case of an aircraft at a place specified by
an immigration officer at the expense of the airline, after
such inspection unless a conditional permit to land temporarily
has been granted such alien crewman under section 252 or unless
an alien crewman has been permitted to land temporarily under
section 212(d)(5) or 253 for medical or hospital treatment, or
(3) to [deport] remove such alien crewman if required to do so
by an immigration officer, whether such [deportation] removal
requirement is imposed before or after the crewman is permitted
to land temporarily under section 212(d)(5), 252, or 253, shall
pay to the Commissioner the sum of $3,000 for each alien
crewman in respect of whom any such failure occurs. No such
vessel or aircraft shall be granted clearance pending the
determination of the liability to the payment of such fine, or
while the fine remains unpaid, except that clearance may be
granted prior to the determination of such question upon the
deposit of a sum sufficient to cover such fine, or of a bond
with sufficient surety to secure the payment thereof approved
by the Commissioner. The Attorney General may, upon application
in writing therefor, mitigate such penalty to not less than
$500 for each alien crewman in respect of whom such failure
occurs, upon such terms as he shall think proper.
(b) Except as may be otherwise prescribed by regulations
issued by the Attorney General, proof that an alien crewman did
not appear upon the outgoing manifest of the vessel or aircraft
on which he arrived in the United States from any place outside
thereof, or that he was reported by the master or commanding
officer of such vessel or aircraft as a deserter, shall be
prima facie evidence of a failure to detain or [deport] remove
such alien crewman.
(c) If the Attorney General finds that [deportation] removal
of an alien crewman under this section on the vessel or
aircraft on which he arrived is impracticable or impossible, or
would cause undue hardship to such alien crewman, he may cause
the alien crewman to be [deported] removed from the port of
arrival or any other port on another vessel or aircraft of the
same transportation line, unless the Attorney General finds
this to be impracticable. All expenses incurred in connection
with such [deportation] removal, including expenses incurred in
transferring an alien crewman from one place in the United
States to another under such conditions and safeguards as the
Attorney General shall impose, shall be paid by the owner or
owners of the vessel or aircraft on which the alien arrived in
the United States. The vessel or aircraft on which the alien
arrived shall not be granted clearance until such expenses have
been paid or their payment guaranteed to the satisfaction of
the Attorney General. An alien crewman who is transferred
within the United States in accordance with this subsection
shall not be regarded as having been landed in the United
States.
* * * * * * *
limitations on performance of longshore work by alien crewmen
Sec. 258. (a) * * *
(b) Longshore Work Defined.--
(1) * * *
(2) Exception for safety and environmental
protection.--The term ``longshore work'' does not
include the loading or unloading of any cargo for which
the Secretary of Transportation has, under the
authority contained in chapter 37 of title 46, United
States Code (relating to Carriage of Liquid Bulk
Dangerous Cargoes), section 311 of the Federal Water
Pollution Control Act (33 U.S.C. 1321), section 4106 of
the Oil Pollution Act of 1990, or [section 105 or 106
of the Hazardous Materials Transportation Act (49
U.S.C. App. 1804, 1805)] section 5103(b), 5104, 5106,
5107, or 5110 of title 49, United States Code
prescribed regulations which govern--
(A) the handling or stowage of such cargo,
(B) the manning of vessels and the duties,
qualifications, and training of the officers
and crew of vessels carrying such cargo, and
(C) the reduction or elimination of discharge
during ballasting, tank cleaning, handling of
such cargo.
* * * * * * *
provisions governing registration of special groups
Sec. 263. (a) Notwithstanding the provisions of sections 261
and 262, the Attorney General is authorized to prescribe
special regulations and forms for the registration and
fingerprinting of (1) alien crewmen, (2) holders of border-
crossing identification cards, (3) aliens confined in
institutions within the United States, (4) aliens under order
of [deportation] removal, [and (5)] (5) aliens who are or have
been on criminal probation or criminal parole within the United
States, and (6) aliens of any other class not lawfully admitted
to the United States for permanent residence.
* * * * * * *
forms and procedure
Sec. 264. (a) * * *
* * * * * * *
(f) Notwithstanding any other provision of law, the Attorney
General is authorized to require any alien to provide the
alien's social security account number for purposes of
inclusion in any record of the alien maintained by the Attorney
General or the Service.
* * * * * * *
penalties
Sec. 266. (a) * * *
(b) Any alien or any parent or legal guardian in the United
States of any alien who fails to give written notice to the
Attorney General, as required by section 265 of this title,
shall be guilty of a misdemeanor and shall, upon conviction
thereof, be fined not to exceed $200 or be imprisoned not more
than thirty days, or both. Irrespective of whether an alien is
convicted and punished as herein provided, any alien who fails
to give written notice to the Attorney General, as required by
section 265, shall be taken into custody and [deported] removed
in the manner provided by chapter [5] 4 of this title, unless
such alien establishes to the satisfaction of the Attorney
General that such failure was reasonably excusable or was not
willful.
(c) Any alien or any parent or legal guardian of any alien,
who files an application for registration containing statements
known by him to be false, or who procures or attempts to
procure registration of himself or another person through
fraud, shall be guilty of a misdemeanor and shall, upon
conviction thereof, be fined not to exceed $1,000, or be
imprisoned not more than six months, or both; and any alien so
convicted shall, upon the warrant of the Attorney General, be
taken into custody and be [deported] removed in the manner
provided in chapter [5] 4 of this title.
* * * * * * *
Chapter 8--General Penalty Provisions
* * * * * * *
bringing in aliens subject to [exclusion] denial of admission on a
health-related ground
Sec. 272. (a) Any person who shall bring to the United States
an alien (other than an alien crewman) who is [excludable]
inadmissible under section 212(a)(1) shall pay to the
Commissioner for each and every alien so afflicted the sum of
$3,000 unless (1) the alien was in possession of a valid,
unexpired immigrant visa, or (2) the alien was allowed to land
in the United States, or (3) the alien was in possession of a
valid unexpired nonimmigrant visa or other document authorizing
such alien to apply for temporary admission to the United
States or an unexpired reentry permit issued to him, and (A)
such application was made within one hundred and twenty days of
the date of issuance of the visa or other document, or in the
case of an alien in possession of a reentry permit, within one
hundred and twenty days of the date on which the alien was last
examined and admitted by the Service, or (B) in the event the
application was made later than one hundred and twenty days of
the date of issuance of the visa or other document or such
examination and admission, if such person establishes to the
satisfaction of the Attorney General that the existence of the
[excluding condition] condition causing inadmissibility could
not have been detected by the exercise of due diligence prior
to the alien's embarkation.
(b) No vessel or aircraft shall be granted clearance papers
pending determination of the question of liability to the
payment of any fine under this section, or while the fines
remain unpaid, nor shall such fines be remitted or refunded;
but clearance may be granted prior to the determination of such
question upon the deposit of a sum sufficient to cover such
fines or of a bond with sufficient surety to secure the payment
thereof, approved by the Commissioner.
(c) Nothing contained in this section shall be construed to
subject transportation companies to a fine for bringing to
ports of entry in the United States aliens who are entitled by
law to exemption from the [excluding] provisions of section
212(a).
(d) As used in this section, the term ``person'' means the
owner, master, agent, commanding officer, charterer, or
consignee of any vessel or aircraft.
unlawful bringing of aliens into united states
Sec. 273. (a)(1) It shall be unlawful for any person,
including any transportation company, or the owner, master,
commanding officer, agent, charterer, or consignee of any
vessel or aircraft, to bring to the United States from any
place outside thereof (other than from foreign contiguous
territory) any alien who does not have a valid passport and an
unexpired visa, if a visa was required under this Act or
regulations issued thereunder.
(2) It is unlawful for an owner, agent, master, commanding
officer, person in charge, purser, or consignee of a vessel or
aircraft who is bringing an alien (except an alien crewmember)
to the United States to take any consideration to be kept or
returned contingent on whether an alien is admitted to, or
ordered removed from, the United States.
(b) If it appears to the satisfaction of the Attorney General
that any alien has been so brought, such person, or
transportation company, or the master, commanding officer,
agent, owner, charterer, or consignee of any such vessel or
aircraft, shall pay to the Commissioner a fine of $3,000 for
each alien so brought and, except in the case of any such alien
who is admitted, or permitted to land temporarily, in addition,
an amount equal to that paid by such alien for his
transportation from the initial point of departure, indicated
in his ticket, to the port of arrival, such latter fine to be
delivered by the Commissioner to the alien on whose account the
assessment is made. No vessel or aircraft shall be granted
clearance pending the determination of the liability to the
payment of such fine or while such fine [remain] remains
unpaid, except that clearance may be granted prior to the
determination of such question upon the deposit of an amount
sufficient to cover such fine, or of a bond with sufficient
surety to secure the payment thereof approved by the
Commissioner.
* * * * * * *
[(d) The owner, charterer, agent, consignee, commanding
officer, or master of any vessel or aircraft arriving at the
United States from any place outside the United States who
fails to deport any alien stowaway on the vessel or aircraft on
which such stowaway arrived or on another vessel or aircraft at
the expense of the vessel or aircraft on which such stowaway
arrived when required to do so by an immigration officer, shall
pay to the Commissioner the sum of $3,000 for each alien
stowaway, in respect of whom any such failure occurs. Pending
final determination of liability for such fine, no such vessel
or aircraft shall be granted clearance, except that clearance
may be granted upon the deposit of an amount sufficient to
cover such fine, or of a bond with sufficient surety to secure
the payment thereof approved by the Commissioner. The
provisions of section 235 for detention of aliens for
examination before special inquiry officers and the right of
appeal provided for in section 236 shall not apply to aliens
who arrive as stowaways and no such alien shall be permitted to
land in the United States, except temporarily for medical
treatment, or pursuant to such regulations as the Attorney
General may prescribe for the ultimate departure or removal or
deportation of such alien from the United States.]
* * * * * * *
bringing in and harboring certain aliens
Sec. 274. (a) Criminal Penalties.--(1)(A) * * *
(B) A person who violates subparagraph (A) shall, for each
alien in respect to whom such a violation occurs--
(i) in the case of a violation of subparagraph (A)(i)
or in the case of a violation of subparagraph (A)(ii),
(iii), or (iv) in which the offense was done for the
purpose of commercial advantage or private financial
gain, be fined under title 18, United States Code,
imprisoned not more than 10 years, or both;
* * * * * * *
(C) Any person who engages in any conspiracy to commit, or
aids or abets the commission of, any of the acts described in--
(i) subparagraph (A)(i) shall be fined under title
18, United States Code, imprisoned not more than 10
years, or both; or
(ii) clause (ii), (iii), or (iv) of subparagraph (A)
shall be fined under title 18, United States Code,
imprisoned not more than 5 years, or both.
(2) Any person who, knowing or in reckless disregard of the
fact that an alien has not received prior official
authorization to come to, enter, or reside in the United
States, brings to or attempts to bring to the United States in
any manner whatsoever, such alien, regardless of any official
action which may later be taken with respect to such alien
shall, [for each transaction constituting a violation of this
paragraph, regardless of the number of aliens involved] for
each alien in respect to whom a violation of this paragraph
occurs--
(A) be fined in accordance with title 18, United
States Code, or imprisoned not more than one year, or
both; or
(B) in the case of--
(i) a second or subsequent offense,
(ii) an offense done for the purpose of
commercial advantage or private financial gain,
[or]
(iii) an offense in which the alien is not
upon arrival immediately brought and presented
to an appropriate immigration officer at a
designated port of entry, or
(iv) an offense committed with the intent or
with reason to believe that the alien
unlawfully brought into the United States will
commit an offense against the United States or
any State punishable by imprisonment for more
than 1 year,
[be fined in accordance with title 18, United States
Code, or in the case of a violation of subparagraph
(B)(ii), imprisoned not more than 10 years, or both; or
in the case of a violation of subparagraph (B)(i) or
(B)(iii), imprisoned not more than 5 years, or both..]
be fined under title 18, United States Code, and shall
be imprisoned not less than 3 years or more than 10
years.
* * * * * * *
unlawful employment of aliens
Sec. 274A. (a) Making Employment of Unauthorized Aliens
Unlawful.--
(1) * * *
* * * * * * *
(3) Defense.--(A) A person or entity that establishes
that it has complied in good faith with the
requirements of subsection (b) with respect to the
hiring, recruiting, or referral for employment of an
alien in the United States has established an
affirmative defense that the person or entity has not
violated paragraph (1)(A) with respect to such hiring,
recruiting, or referral.
(B) Failure to seek and obtain confirmation.--Subject
to subsection (b)(7), in the case of a hiring of an
individual for employment in the United States by a
person or entity that employs more than 3 employees,
the following rules apply:
(i) Failure to seek confirmation.--
(I) In general.--If the person or
entity has not made an inquiry, under
the mechanism established under
subsection (b)(6), seeking confirmation
of the identity, social security
number, and work eligibility of the
individual, by not later than the end
of 3 working days (as specified by the
Attorney General) after the date of the
hiring, the defense under subparagraph
(A) shall not be considered to apply
with respect to any employment after
such 3 working days, except as provided
in subclause (II).
(II) Special rule for failure of
confirmation mechanism.--If such a
person or entity in good faith attempts
to make an inquiry during such 3
working days in order to qualify for
the defense under subparagraph (A) and
the confirmation mechanism has
registered that not all inquiries were
responded to during such time, the
person or entity can make an inquiry in
the first subsequent working day in
which the confirmation mechanism
registers no nonresponses and qualify
for the defense.
(ii) Failure to obtain confirmation.--If the
person or entity has made the inquiry described
in clause (i)(I) but has not received an
appropriate confirmation of such identity,
number, and work eligibility under such
mechanism within the time period specified
under subsection (b)(6)(D)(iii) after the time
the confirmation inquiry was received, the
defense under subparagraph (A) shall not be
considered to apply with respect to any
employment after the end of such time period.
* * * * * * *
(6) Treatment of documentation for certain
employees.--
(A) In general.--For purposes of paragraphs
(1)(B) and (3), if--
(i) an individual is a member of a
collective-bargaining unit and is
employed, under a collective bargaining
agreement entered into between one or
more employee organizations and an
association of two or more employers,
by an employer that is a member of such
association, and
(ii) within the period specified in
subparagraph (B), another employer that
is a member of the association (or an
agent of such association on behalf of
the employer) has complied with the
requirements of subsection (b) with
respect to the employment of the
individual,
the subsequent employer shall be deemed to have
complied with the requirements of subsection
(b) with respect to the hiring of the employee
and shall not be liable for civil penalties
described in subsection (e)(5).
(B) Period.--The period described in this
subparagraph is--
(i) up to 5 years in the case of an
individual who has presented
documentation identifying the
individual as a national of the United
States or as an alien lawfully admitted
for permanent residence; or
(ii) up to 3 years (or, if less, the
period of time that the individual is
authorized to be employed in the United
States) in the case of another
individual.
(C) Liability.--
(i) In general.--If any employer that
is a member of an association hires for
employment in the United States an
individual and relies upon the
provisions of subparagraph (A) to
comply with the requirements of
subsection (b) and the individual is an
unauthorized alien, then for the
purposes of paragraph (1)(A), subject
to clause (ii), the employer shall be
presumed to have known at the time of
hiring or afterward that the individual
was an unauthorized alien.
(ii) Rebuttal of presumption.--The
presumption established by clause (i)
may be rebutted by the employer only
through the presentation of clear and
convincing evidence that the employer
did not know (and could not reasonably
have known) that the individual at the
time of hiring or afterward was an
unauthorized alien.
(b) Employment Verification System.--The requirements
referred to in paragraphs (1)(B) and (3) of subsection (a) are,
in the case of a person or other entity hiring, recruiting, or
referring an individual for employment in the United States,
the requirements specified in the following three paragraphs:
(1) Attestation after examination of documentation.--
(A) * * *
(B) Documents establishing both employment
authorization and identity.--A document
described in this subparagraph is an
individual's--
(i) United States passport; or
[(ii) certificate of United States
citizenship;
[(iii) certificate of naturalization;
[(iv) unexpired foreign passport, if
the passport has an appropriate,
unexpired endorsement of the Attorney
General authorizing the individual's
employment in the United States; or]
[(v)] (ii) resident alien card [or
other alien registration card, if the
card], alien registration card, or
other document designated by regulation
by the Attorney General, if the
document--
(I) contains a photograph of
the individual or such other
personal identifying
information relating to the
individual as the Attorney
General finds, by regulation,
sufficient for purposes of this
subsection, and
(II) is evidence of
authorization of employment in
the United States.
[(C) Documents evidencing employment
authorization.--A document described in this
subparagraph is an individual's--
[(i) social security account number
card (other than such a card which
specifies on the face that the issuance
of the card does not authorize
employment in the United States);
[(ii) certificate of birth in the
United States or establishing United
States nationality at birth, which
certificate the Attorney General finds,
by regulation, to be acceptable for
purposes of this section; or
[(iii) other documentation evidencing
authorization of employment in the
United States which the Attorney
General finds, by regulation, to be
acceptable for purposes of this
section.]
(C) Social security account number card as
evidence of employment authorization.--A
document described in this subparagraph is an
individual's social security account number
card (other than such a card which specifies on
the face that the issuance of the card does not
authorize employment in the United States).
(D) Documents establishing identity of
individual.--A document described in this
subparagraph is an individual's--
(i) driver's license or similar
document issued for the purpose of
identification by a State, if it
contains a photograph of the individual
or such other personal identifying
information relating to the individual
as the Attorney General finds, by
regulation, sufficient for purposes of
this section; or
(ii) in the case of individuals under
16 years of age or in a State which
does not provide for issuance of an
identification document (other than a
driver's license) referred to in clause
(i), documentation of personal identity
of such other type as the Attorney
General finds, by regulation, provides
a reliable means of identification.
[(2) Individual attestation of employment
authorization.--The individual must attest, under
penalty of perjury on the form designated or
established for purposes of paragraph (1), 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 Attorney General to be hired, recruited, or
referred for such employment.
[(3) Retention of verification form.--After
completion of such form in accordance with paragraphs
(1) and (2), the person or entity must retain the form
and make it available for inspection by officers of the
Service, the Special Counsel for Immigration-Related
Unfair Employment Practices, or the Department of Labor
during a period beginning on the date of the hiring,
recruiting, or referral of the individual and ending--
[(A) in the case of the recruiting or
referral for a fee (without hiring) of an
individual, three years after the date of the
recruiting or referral, and
[(B) in the case of the hiring of an
individual--
[(i) three years after the date of
such hiring, or
[(ii) one year after the date the
individual's employment is terminated,
whichever is later.]
(2) Individual attestation of employment
authorization and provision of social security account
number.--The individual must--
(A) attest, under penalty of perjury on the
form designated or established for purposes of
paragraph (1), 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 Attorney General to be hired, recruited, or
referred for such employment; and
(B) provide on such form the individual's
social security account number.
(3) Retention of verification form and
confirmation.--After completion of such form in
accordance with paragraphs (1) and (2), the person or
entity must--
(A) retain the form and make it available for
inspection by officers of the Service, the
Special Counsel for Immigration-Related Unfair
Employment Practices, or the Department of
Labor during a period beginning on the date of
the hiring, recruiting, or referral of the
individual and ending--
(i) in the case of the recruiting or
referral for a fee (without hiring) of
an individual, three years after the
date of the recruiting or referral, and
(ii) in the case of the hiring of an
individual--
(I) three years after the
date of such hiring, or
(II) one year after the date
the individual's employment is
terminated,
whichever is later; and
(B) subject to paragraph (7), if the person
employs more than 3 employees, seek to have
(within 3 working days of the date of hiring)
and have (within the time period specified
under paragraph (6)(D)(iii)) the identity,
social security number, and work eligibility of
the individual confirmed in accordance with the
procedures established under paragraph (6),
except that if the person or entity in good
faith attempts to make an inquiry in accordance
with the procedures established under paragraph
(6) during such 3 working days in order to
fulfill the requirements under this
subparagraph, and the confirmation mechanism
has registered that not all inquiries were
responded to during such time, the person or
entity shall make an inquiry in the first
subsequent working day in which the
confirmation mechanism registers no
nonresponses.
(4) Copying of documentation permitted.--
Notwithstanding any other provision of law, the person
or entity may copy a document presented by an
individual pursuant to this subsection and may retain
the copy, but only (except as otherwise permitted under
law) for the purpose of complying with the requirements
of this subsection.
(5) Limitation on use of attestation form.--A form
designated or established by the Attorney General under
this subsection and any information contained in or
appended to such form, may not be used for purposes
other than for enforcement of this Act and sections
1001, 1028, 1546, and 1621 of title 18, United States
Code.
(6) Employment eligibility confirmation process.--
(A) In general.--Subject to paragraph (7),
the Attorney General shall establish a
confirmation mechanism through which the
Attorney General (or a designee of the Attorney
General which may include a nongovernmental
entity)--
(i) responds to inquiries by
employers, made through a toll-free
telephone line or other electronic
media in the form of an appropriate
confirmation code or otherwise, on
whether an individual is authorized to
be employed by that employer, and
(ii) maintains a record that such an
inquiry was made and the confirmation
provided (or not provided).
(B) Expedited procedure in case of no
confirmation.--In connection with subparagraph
(A), the Attorney General shall establish, in
consultation with the Commissioner of Social
Security and the Commissioner of the Service,
expedited procedures that shall be used to
confirm the validity of information used under
the confirmation mechanism in cases in which
the confirmation is sought but is not provided
through the confirmation mechanism.
(C) Design and operation of mechanism.--The
confirmation mechanism shall be designed and
operated--
(i) to maximize the reliability of
the confirmation process, and the ease
of use by employers, recruiters, and
referrers, consistent with insulating
and protecting the privacy and security
of the underlying information, and
(ii) to respond to all inquiries made
by employers on whether individuals are
authorized to be employed by those
employers, recruiters, or referrers
registering all times when such
response is not possible.
(D) Confirmation process.--(i) As part of the
confirmation mechanism, the Commissioner of
Social Security shall establish a reliable,
secure method, which within the time period
specified under clause (iii), compares the name
and social security account number provided
against such information maintained by the
Commissioner in order to confirm (or not
confirm) the validity of the information
provided and whether the individual has
presented a social security account number that
is not valid for employment. The Commissioner
shall not disclose or release social security
information.
(ii) As part of the confirmation mechanism,
the Commissioner of the Service shall establish
a reliable, secure method, which, within the
time period specified under clause (iii),
compares the name and alien identification
number (if any) provided against such
information maintained by the Commissioner in
order to confirm (or not confirm) the validity
of the information provided and whether the
alien is authorized to be employed in the
United States.
(iii) For purposes of this section, the
Attorney General (or a designee of the Attorney
General) shall provide through the confirmation
mechanism confirmation or a tentative
nonconfirmation of an individual's employment
eligibility within 3 working days of the
initial inquiry. In cases of tentative
nonconfirmation, the Attorney General shall
specify, in consultation with the Commissioner
of Social Security and the Commissioner of the
Service, an expedited time period not to exceed
10 working days within which final confirmation
or denial must be provided through the
confirmation mechanism in accordance with the
procedures under subparagraph (B).
(iv) The Commissioners shall update their
information in a manner that promotes the
maximum accuracy and shall provide a process
for the prompt correction of erroneous
information.
(E) Protections.--(i) In no case shall an
individual be denied employment because of
inaccurate or inaccessible data under the
confirmation mechanism.
(ii) The Attorney General shall assure that
there is a timely and accessible process to
challenge nonconfirmations made through the
mechanism.
(iii) If an individual would not have been
dismissed from a job but for an error of the
confirmation mechanism, the individual will be
entitled to compensation through the mechanism
of the Federal Tort Claims Act.
(F) Tester program.--As part of the
confirmation mechanism, the Attorney General
shall implement a program of testers and
investigative activities (similar to testing
and other investigative activities assisted
under the fair housing initiatives program
under section 561 of the Housing and Community
Development Act of 1987 to enforce rights under
the Fair Housing Act) in order to monitor and
prevent unlawful discrimination under the
mechanism.
(G) Protection from liability for actions
taken on the basis of information provided by
the employment eligibility confirmation
mechanism.--No person shall be civilly or
criminally liable for any action taken in good
faith reliance on information provided through
the employment eligibility confirmation
mechanism established under this paragraph
(including any pilot program established under
paragraph (7)).
(7) Application of confirmation mechanism through
pilot projects.--
(A) In general.--Subsection (a)(3)(B) and
paragraph (3) shall only apply to individuals
hired if they are covered under a pilot project
established under this paragraph.
(B) Undertaking pilot projects.--For purposes
of this paragraph, the Attorney General shall
undertake pilot projects for all employers in
at least 5 of the 7 States with the highest
estimated population of unauthorized aliens, in
order to test and assure that the confirmation
mechanism described in paragraph (6) is
reliable and easy to use. Such projects shall
be initiated not later than 6 months after the
date of the enactment of this paragraph. The
Attorney General, however, shall not establish
such mechanism in other States unless Congress
so provides by law. The pilot projects shall
terminate on such dates, not later than October
1, 1999, as the Attorney General determines. At
least one such pilot project shall be carried
out through a nongovernmental entity as the
confirmation mechanism.
(C) Report.--The Attorney General shall submit to the
Congress annual reports in 1997, 1998, and 1999 on the
development and implementation of the confirmation
mechanism under this paragraph. Such reports may
include an analysis of whether the mechanism
implemented--
(i) is reliable and easy to use;
(ii) limits job losses due to inaccurate or
unavailable data to less than 1 percent;
(iii) increases or decreases discrimination;
(iv) protects individual privacy with
appropriate policy and technological
mechanisms; and
(v) burdens individual employers with costs
or additional administrative requirements.
* * * * * * *
(e) Compliance.--
(1) Complaints and investigations.--The Attorney
General shall establish procedures--
(A) for individuals and entities to file
written, signed complaints respecting potential
violations of subsection (a) or (g)(1),
(B) for the investigation of those complaints
which, on their face, have a substantial
probability of validity,
(C) for the investigation of such other
violations of subsection (a) or (g)(1) as the
Attorney General determines to be appropriate,
[and]
(D) for the designation in the Service of a
unit which has, as its primary duty, the
prosecution of cases of violations of
subsection (a) or (g)(1) under this
subsection[.], and
(E) under which a person or entity shall not
be considered to have failed to comply with the
requirements of subsection (b) based upon a
technical or procedural failure to meet a
requirement of such subsection in which there
was a good faith attempt to comply with the
requirement unless (i) the Service (or another
enforcement agency) has explained to the person
or entity the basis for the failure, (ii) the
person or entity has been provided a period of
not less than 10 business days (beginning after
the date of the explanation) within which to
correct the failure, and (iii) the person or
entity has not corrected the failure
voluntarily within such period, except that
this subparagraph shall not apply with respect
to the engaging by any person or entity of a
pattern or practice of violations of subsection
(a)(1)(A) or (a)(2).
* * * * * * *
[(i) Effective Dates.--
[(1) 6-Month public information period.--During the
six-month period beginning on the first day of the
first month after the date of the enactment of this
section--
[(A) the Attorney General, in cooperation
with the Secretaries of Agriculture, Commerce,
Health and Human Services, Labor, and the
Treasury and the Administrator of the Small
Business Administration, shall disseminate
forms and information to employers, employment
agencies, and organizations representing
employees and provide for public education
respecting the requirements of this section,
and
[(B) the Attorney General shall not conduct
any proceeding, nor issue any order, under this
section on the basis of any violation alleged
to have occurred during the period.
[(2) 12-Month first citation period.--In the case of
a person or entity, in the first instance in which the
Attorney General has reason to believe that the person
or entity may have violated subsection (a) during the
subsequent 12-month period, the Attorney General shall
provide a citation to the person or entity indicating
that such a violation or violations may have occurred
and shall not conduct any proceeding, nor issue any
order, under this section on the basis of such alleged
violation or violations.
[(3) Deferral of enforcement with respect to seasonal
agricultural services.--
[(A) In general.--Except as provided in
subparagraph (B), before the end of the
application period (as defined in subparagraph
(C)(i)), the Attorney General shall not conduct
any proceeding, nor impose any penalty, under
this section on the basis of any violation
alleged to have occurred with respect to
employment of an individual in seasonal
agricultural services.
[(B) Prohibition of recruitment outside the
united states.--
[(i) In general.--During the
application period, it is unlawful for
a person or entity (including a farm
labor contractor) or an agent of such a
person or entity, to recruit an
unauthorized alien (other than an alien
described in clause (ii)) who is
outside the United States to enter the
United States to perform seasonal
agricultural services.
[(ii) Exception.--Clause (i) shall
not apply to an alien who the person or
entity reasonably believes meets the
requirements of section 210(a)(2) of
this Act (relating to performance of
seasonal agricultural services).
[(iii) Penalty for violation.--A
person, entity, or agent that violates
clause (i) shall be deemed to be
subject to an order under this section
in the same manner as if it had
violated subsection (a)(1)(A), without
regard to paragraph (2) of this
subsection.
[(C) Definitions.--In this paragraph:
[(i) Application period.--The term
``application period'' means the period
described in section 210(a)(1).
[(ii) Seasonal agricultural
services.--The term ``seasonal
agricultural services'' has the meaning
given such term in section 210(h).
[(j) General Accounting Office Reports.--
[(1) In general.--Beginning one year after the date
of enactment of this section, and at intervals of one
year thereafter for a period of three years after such
date, the Comptroller General shall prepare and
transmit to the Congress and to the taskforce
established under subsection (k) a report describing
the results of a review of the implementation and
enforcement of this section during the preceding
twelve-month period, for the purpose of determining
if--
[(A) such provisions have been carried out
satisfactorily;
[(B) a pattern of discrimination has resulted
against citizens or nationals of the United
States or against eligible workers seeking
employment; and
[(C) an unnecessary regulatory burden has
been created for employers hiring such workers.
[(2) Determination on discrimination.--In each
report, the Comptroller General shall make a specific
determination as to whether the implementation of this
section has resulted in a pattern of discrimination in
employment (against other than unauthorized aliens) on
the basis of national origin.
[(3) Recommendations.--If the Comptroller General has
determined that such a pattern of discrimination has
resulted, the report--
[(A) shall include a description of the scope
of that discrimination, and
[(B) may include recommendations for such
legislation as may be appropriate to deter or
remedy such discrim- ination.
[(k) Review by Taskforce.--
[(1) Establishment of joint taskforce.--The Attorney
General, jointly with the Chairman of the Commission on
Civil Rights and the Chairman of the Equal Employment
Opportunity Commission, shall establish a taskforce to
review each report of the Comptroller General
transmitted under subsection (j)(1).
[(2) Recommendations to congress.--If the report
transmitted includes a determination that the
implementation of this section has resulted in a
pattern of discrimination in employment (against other
than unauthorized aliens) on the basis of national
origin, the taskforce shall, taking into consideration
any recommendations in the report, report to Congress
recommendations for such legislation as may be
appropriate to deter or remedy such discrimination.
[(3) Congressional hearings.--The Committees on the
Judiciary of the House of Representatives and of the
Senate shall hold hearings respecting any report of the
taskforce under paragraph (2) within 60 days after the
date of receipt of the report.
[(l) Termination Date for Employer Sanctions.--
[(1) If report of widespread discrimination and
congressional approval.--The provisions of this section
shall terminate 30 calendar days after receipt of the
last report required to be transmitted under subsection
(j), if--
[(A) the Comptroller General determines, and
so reports in such report, that a widespread
pattern of discrimination has resulted against
citizens or nationals of the United States or
against eligible workers seeking employment
solely from the implementation of this section;
and
[(B) there is enacted, within such period of
30 calendar days, a joint resolution stating in
substance that the Congress approves the
findings of the Comptroller General contained
in such report.
[(2) Senate procedures for consideration.--Any joint
resolution referred to in clause (B) of paragraph (1)
shall be considered in the Senate in accordance with
subsection (n).
[(m) Expedited Procedures in the House of Representatives.--
For the purpose of expediting the consideration and adoption of
joint resolutions under subsection (l), a motion to proceed to
the consideration of any such joint resolution after it has
been reported by the appropriate committee shall be treated as
highly privileged in the House of Representatives.
[(n) Expedited Procedures in the Senate.--
[(1) Continuity of session.--For purposes of
subsection (l), the continuity of a session of Congress
is broken only by an adjournment of the Congress sine
die, and the days on which either House is not in
session because of an adjournment of more than three
days to a day certain are excluded in the computation
of the period indicated.
[(2) Rulemaking power.--Paragraphs (3) and (4) of
this subsection are enacted--
[(A) as an exercise of the rulemaking power
of the Senate and as such they are deemed a
part of the rules of the Senate, but applicable
only with respect to the procedure to be
followed in the Senate in the case of joint
resolutions referred to in subsection (l), and
supersede other rules of the Senate only to the
extent that such paragraphs are inconsistent
therewith; and
[(B) with full recognition of the
constitutional right of the Senate to change
such rules at any time, in the same manner as
in the case of any other rule of the Senate.
[(3) Committee consideration.--
[(A) Motion to discharge.--If the committee
of the Senate to which has been referred a
joint resolution relating to the report
described in subsection (l) has not reported
such joint resolution at the end of ten
calendar days after its introduction, not
counting any day which is excluded under
paragraph (1) of this subsection, it is in
order to move either to discharge the committee
from further consideration of the joint
resolution or to discharge the committee from
further consideration of any other joint
resolution introduced with respect to the same
report which has been referred to the
committee, except that no motion to discharge
shall be in order after the committee has
reported a joint resolution with respect to the
same report.
[(B) Consideration of motion.--A motion to
discharge under subparagraph (A) of this
paragraph may be made only by a Senator
favoring the joint resolution, is privileged,
and debate thereon shall be limited to not more
than 1 hour, to be divided equally between
those favoring and those opposing the joint
resolution, the time to be divided equally
between, and controlled by, the majority leader
and the minority leader or their designees. An
amendment to the motion is not in order, and it
is not in order to move to reconsider the vote
by which the motion is agreed to or disagreed
to.
[(4) Motion to proceed to consideration.--
[(A) In general.--A motion in the Senate to
proceed to the consideration of a joint
resolution shall be privileged. An amendment to
the motion shall not be in order, nor shall it
be in order to move to reconsider the vote by
which the motion is agreed to or disagreed to.
[(B) Debate on resolution.--Debate in the
Senate on a joint resolution, and all debatable
motions and appeals in connection therewith,
shall be limited to not more than 10 hours, to
be equally divided between, and controlled by,
the majority leader and the minority leader or
their designees.
[(C) Debate on motion.--Debate in the Senate
on any debatable motion or appeal in connection
with a joint resolution shall be limited to not
more than 1 hour, to be equally divided
between, and controlled by, the mover and the
manager of the joint resolution, except that in
the event the manager of the joint resolution
is in favor of any such motion or appeal, the
time in opposition thereto shall be controlled
by the minority leader or his designee. Such
leaders, or either of them, may, from time
under their control on the passage of a joint
resolution, allot additional time to any
Senator during the consideration of any
debatable motion or appeal.
[(D) Motions to limit debate.--A motion in
the Senate to further limit debate on a joint
resolution, debatable motion, or appeal is not
debatable. No amendment to, or motion to
recommit, a joint resolution is in order in the
Senate.]
unfair immigration-related employment practices
Sec. 274B. (a) Prohibition of Discrimination Based on
National Origin or Citizenship Status.--
(1) * * *
* * * * * * *
(3) Definition of protected individual.--As used in
paragraph (1), the term ``protected individual'' means
an individual who--
(A) is a citizen or national of the United
States, or
(B) is an alien who is lawfully admitted for
permanent residence, is granted the status of
an alien lawfully admitted for temporary
residence under section 210(a)[, 210A(a),] or
245A(a)(1), is admitted as a refugee under
section 207, or is granted asylum under section
208; but does not include (i) an alien who
fails to apply for naturalization within six
months of the date the alien first becomes
eligible (by virtue of period of lawful
permanent residence) to apply for
naturalization or, if later, within six months
after the date of the enactment of this section
and (ii) an alien who has applied on a timely
basis, but has not been naturalized as a
citizen within 2 years after the date of the
application, unless the alien can establish
that the alien is actively pursuing
naturalization, except that time consumed in
the Service's processing the application shall
not be counted toward the 2-year period.
* * * * * * *
(6) Treatment of certain documentary practices as
employment practices.--[For] (A) Subject to
subparagraph (B), for purposes of paragraph (1), 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 on their face reasonably appear to be genuine
shall be treated as an unfair immigration-related
employment practice relating to the hiring of
individuals.
(B) A person or other entity--
(i) may request a document proving a renewal
of employment authorization when an individual
has previously submitted a time-limited
document to satisfy the requirements of section
274A(b)(1); or
(ii) if possessing reason to believe that an
individual presenting a document which
reasonably appears on its face to be genuine is
nonetheless an unauthorized alien, (I) may
inform the individual of the question about the
document's validity, and of such person or
other entity's intention to verify the validity
of such document, and (II) upon receiving
confirmation that the individual is
unauthorized to work, may dismiss the
individual with no benefits or rights accruing
on the basis of the period employed.
Nothing in this provision prohibits an individual from
offering alternative documents that satisfy the
requirements of section 274A(b)(1).
* * * * * * *
(g) Determinations.--
(1) Order.--The administrative law judge shall issue
and cause to be served on the parties to the proceeding
an order, which shall be final unless appealed as
provided under subsection (i).
(2) Orders finding violations.--
(A) In general.--If, upon the preponderance
of the evidence, an administrative law judge
determines that any person or entity named in
the complaint has engaged in or is engaging in
any such unfair immigration-related employment
practice, then the judge shall state his
findings of fact and shall issue and cause to
be served on such person or entity an order
which requires such person or entity to cease
and desist from such unfair immigration-related
employment practice. Such order also shall
require the person or entity to comply with the
requirements of clauses (ii) and (vi) of
subparagraph (B).
(B) Contents of order.--[Such an order]
Subject to the second sentence of subparagraph
(A), such an order also may require the person
or entity--
(i) to comply with the requirements
of section 274A(b) with respect to
individuals hired (or recruited or
referred for employment for a fee)
during a period of up to three years;
* * * * * * *
(vi) to educate all personnel
involved in hiring and complying with
this section or section 274A about the
requirements of this section or such
section and to certify the fact of such
education;
* * * * * * *
penalties for document fraud
Sec. 274C. (a) Activities Prohibited.--It is unlawful for any
person or entity knowingly--
(1) to forge, counterfeit, alter, or falsely make any
document for the purpose of satisfying a requirement of
this Act,
(2) to use, attempt to use, possess, obtain, accept,
or receive or to provide any forged, counterfeit,
altered, or falsely made document in order to satisfy
any requirement of this Act,
(3) to use or attempt to use or to provide or attempt
to provide any document lawfully issued to a person
other than the possessor (including a deceased
individual) for the purpose of satisfying a requirement
of this Act, [or]
(4) to accept or receive or to provide any document
lawfully issued to a person other than the possessor
(including a deceased individual) for the purpose of
complying with section 274A(b)[.],
(5) in reckless disregard of the fact that the
information is false or does not relate to the
applicant, to prepare, to file, or to assist another in
preparing or filing, documents which are falsely made
for the purpose of satisfying a requirement of this
Act,
(6) to present before boarding a common carrier for
the purpose of coming to the United States a document
which relates to the alien's eligibility to enter the
United States and to fail to present such document to
an immigration officer upon arrival at a United States
port of entry, or
(7) to prepare or assist in the preparation and
submission of immigration forms, petitions, and
applications if the person or entity is not authorized
to represent aliens, or to prepare or assist in the
preparation and submission of such forms, petitions,
and applications pursuant to regulations promulgated by
the Attorney General.
For purposes of this section, the term ``falsely made''
includes, with respect to a document or application, the
preparation or provision of the document or application with
knowledge or in reckless disregard of the fact that such
document contains a false, fictitious, or fraudulent statement
or material representation, or has no basis in law or fact, or
otherwise fails to state a material fact pertaining to the
document or application. The Attorney General may, in the
discretion of the Attorney General, waive the penalties of this
section with respect to an alien who knowingly violates
paragraph (6) if the alien is granted asylum under section 208
or withholding of deportation under section 243(h).
* * * * * * *
(d) Enforcement.--
(1) * * *
* * * * * * *
(3) Cease and desist order with civil money
penalty.--With respect to a violation of subsection
(a), the order under this subsection shall require the
person or entity to cease and desist from such
violations and to pay a civil penalty in an amount of--
(A) not less than $250 and not more than
$2,000 for [each document used, accepted, or
created and each instance of use, acceptance,
or creation] each instance of a violation under
subsection (a), or
(B) in the case of a person or entity
previously subject to an order under this
paragraph, not less than $2,000 and not more
than $5,000 for [each document used, accepted,
or created and each instance of use,
acceptance, or creation] each instance of a
violation under subsection (a).
In applying this subsection in the case of a person or
entity composed of distinct, physically separate
subdivisions each of which provides separately for the
hiring, recruiting, or referring for employment,
without reference to the practices of, and not under
the control of or common control with, another
subdivision, each such subdivision shall be considered
a separate person or entity.
* * * * * * *
(e) Criminal Penalties for Failure To Disclose Role as
Document Preparer.--
(1) If a person is required by law or regulation to
disclose the fact that the person, on behalf of another
person and for a fee or other remuneration, has
prepared or assisted in preparing an application for
asylum pursuant to section 208, or the regulations
promulgated thereunder, and the person knowingly and
willfully fails to disclose, conceals, or covers up
such fact, and the application was falsely made, the
person shall--
(A) be imprisoned for not less than 2 nor
more than 5 years, fined in accordance with
title 18, United States Code, or both, and
(B) be prohibited from preparing or assisting
in preparing, regardless of whether for a fee
or other remuneration, any other such
application for a period of at least 5 years
and not more than 15 years.
(2) Whoever, having been convicted of a violation of
paragraph (1), knowingly and willfully prepares or
assists in preparing an application for asylum pursuant
to section 208, or the regulations promulgated
thereunder, regardless of whether for a fee or other
remuneration, in violation of paragraph (1)(B) shall be
imprisoned for not less than 5 years or more than 15
years, fined in accordance with title 18, United States
Code, or both, and prohibited from preparing or
assisting in preparing any other such application.
civil penalties for failure to depart
Sec. 274D. (a) In General.--Any alien subject to a final
order of removal who--
(1) willfully fails or refuses to--
(A) depart from the United States pursuant to
the order,
(B) make timely application in good faith for
travel or other documents necessary for
departure, or
(C) present for removal at the time and place
required by the Attorney General; or
(2) conspires to or takes any action designed to
prevent or hamper the alien's departure pursuant to the
order,
shall pay a civil penalty of not more than $500 to the
Commissioner for each day the alien is in violation of this
section.
(b) Construction.--Nothing in this section shall be construed
to diminish or qualify any penalties to which an alien may be
subject for activities proscribed by section 243(a) or any
other section of this Act.
entry of alien at improper time or place; misrepresentation and
concealment of facts
Sec. 275. (a) Any alien who (1) enters or attempts to enter
the United States at any time or place other than as designated
by immigration officers, or (2) eludes examination or
inspection by immigration officers, or (3) attempts to enter or
obtains entry to the United States by a willfully false or
misleading representation or the willful concealment of a
material fact, shall, for the first commission of any such
offense, be fined under title 18, United States Code, or
imprisoned not more than 6 months, or both, and, for a
subsequent commission of any such offense, be fined under title
18, United States Code, or imprisoned not more than 2 years, or
both.
(b) Any alien who is apprehended while entering (or
attempting to enter) the United States at a time or place other
than as designated by immigration officers shall be subject to
a civil penalty of--
(1) at least $50 and not more than $250 for each such
entry (or attempted entry), or
(2) twice the amount specified in paragraph (1) in
the case of an alien who has been previously subject to
a civil penalty under this subsection.
Civil penalties under this subsection are in addition to, and
not in lieu of, any criminal or other civil penalties that may
be imposed.
[(b)] (c) An individual who knowingly enters into a marriage
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.
[(c)] (d) Any individual who knowingly establishes a
commercial enterprise for the purpose of evading any provision
of the immigration laws shall be imprisoned for not more than 5
years, fined in accordance with title 18, United States Code,
or both.
reentry of [deported] removed alien
Sec. 276. (a) Subject to subsection (b), any alien who--
(1) has been arrested and [deported or excluded and
deported] denied admission or removed, and thereafter
(2) enters, attempts to enter, or is at any time
found in, the United States, unless (A) prior to his
reembarkation at a place outside the United States or
his application for admission from foreign contiguous
territory, the Attorney General has expressly consented
to such alien's reapplying for admission; or (B) with
respect to an alien previously [excluded and deported]
denied admission and removed, unless such alien shall
establish that he was not required to obtain such
advance consent under this or any prior Act,
shall be fined under title 18, United States Code, or
imprisoned not more than 2 years, or both.
(b) Notwithstanding subsection (a), in the case of any alien
described in such subsection--
(1) whose [deportation] removal was subsequent to a
conviction for commission of three or more misdemeanors
involving drugs, crimes against the person, or both, or
a felony (other than an aggravated felony), such alien
shall be fined under title 18, United States Code,
imprisoned not more than 10 years, or both; [or]
(2) whose [deportation] removal was subsequent to a
conviction for commission of an aggravated felony, such
alien shall be fined under such title, imprisoned not
more than 20 years, or both[.]; or
(3) who has been removed from the United States
pursuant to subsection 235(c) because the alien was
inadmissible under subsection 212(a)(3)(B) or who has
been removed from the United States pursuant to the
provisions of title V, 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.
For the purposes of this subsection, the term ``[deportation]
removal'' includes any agreement in which an alien stipulates
to [deportation] removal during a criminal trial under either
Federal or State law.
aiding or assisting certain aliens to enter the united states
Sec. 277. Any person who knowingly aids or assists any alien
[excludable] inadmissible under section 212(a)(2) (insofar as
an alien [excludable] inadmissible under such section has been
convicted of an aggravated felony) or 212(a)(3) (other than
subparagraph (E) thereof) to enter the United States, or who
connives or conspires with any person or persons to allow,
procure, or permit any such alien to enter the United States,
shall be fined under title 18, United States Code, or
imprisoned not more than 10 years, or both.
* * * * * * *
jurisdiction of district courts
Sec. 279. [The district courts of the United States shall
have jurisdiction of all causes, civil and criminal, arising
under any of the provisions of this title.] The district courts
of the United States shall have jurisdiction of all causes,
civil and criminal, brought by the United States that arise
under the provisions of this title. It shall be the duty of the
United States attorney of the proper district to prosecute
every such suit when brought by the United States.
Notwithstanding any other law, such prosecutions or suits may
be instituted at any place in the United States at which the
violation may occur or at which the person charged with a
violation under section 275 or 276 may be apprehended. No suit
or proceeding for a violation of any of the provisions of this
title shall be settled, compromised, or discontinued without
the consent of the court in which it is pending and any such
settlement, compromise, or discontinuance shall be entered of
record with the reasons therefor. Nothing in this section shall
be construed as providing jurisdiction for suits against the
United States or its agencies or officers.
collection of penalties and expenses
Sec. 280. (a) Notwithstanding any other provisions of this
title, the withholding or denial of clearance of or a lien upon
any vessel or aircraft provided for in section 231, [237, 239,
243] 234, 243(c)(2), 251, 253, 254, 255, 256, 271, 272, or 273
of this title shall not be regarded as the sole and exclusive
means or remedy for the enforcement of payments of any fine,
penalty or expenses imposed or incurred under such sections,
but, in the discretion of the Attorney General, the amount
thereof may be recovered by civil suit, in the name of the
United States, from any person made liable under any of such
sections.
[(b) Notwithstanding section 3302 of title 31, United States
Code, the increase in penalties collected resulting from the
amendments made by sections 203(b), 543(a), and 544 of the
Immigration Act of 1990 shall be credited to the
appropriation--
[(1) for the Immigration and Naturalization Service
for activities that enhance enforcement of provisions
of this title, including--
[(A) the identification, investigation, and
apprehension of criminal aliens,
[(B) the implementation of the system
described in section 242(a)(3)(A), and
[(C) for the repair, maintenance, or
construction on the United States border, in
areas experiencing high levels of apprehensions
of illegal aliens, of structures to deter
illegal entry into the United States; and
[(2) for the Executive Office for Immigration Review
in the Department of Justice for the purpose of
removing the backlogs in the preparation of transcripts
of deportation proceedings conducted under section
242.]
(b)(1) There is established in the general fund of the
Treasury a separate account which shall be known as the
``Immigration Enforcement Account''. Notwithstanding any other
section of this title, there shall be deposited as offsetting
receipts into the Immigration Enforcement Account amounts
described in paragraph (2) to remain available until expended.
(2) The amounts described in this paragraph are the
following:
(A) The increase in penalties collected resulting
from the amendments made by sections 203(b) and 543(a)
of the Immigration Act of 1990.
(B) Civil penalties collected under sections 240B(d),
274C, 274D, and 275(b).
(3)(A) The Secretary of the Treasury shall refund out of the
Immigration Enforcement Account to any appropriation the amount
paid out of such appropriation for expenses incurred by the
Attorney General for activities that enhance enforcement of
provisions of this title, including--
(i) the identification, investigation, apprehension,
detention, and removal of criminal aliens;
(ii) the maintenance and updating of a system to
identify and track criminal aliens, deportable aliens,
inadmissible aliens, and aliens illegally entering the
United States; and
(iii) for the repair, maintenance, or construction on
the United States border, in areas experiencing high
levels of apprehensions of illegal aliens, of
structures to deter illegal entry into the United
States.
(B) The amounts which are required to be refunded under
subparagraph (A) shall be refunded at least quarterly on the
basis of estimates made by the Attorney General of the expenses
referred to in subparagraph (A). Proper adjustments shall be
made in the amounts subsequently refunded under subparagraph
(A) to the extent prior estimates were in excess of, or less
than, the amount required to be refunded under subparagraph
(A).
Chapter 9--Miscellaneous
* * * * * * *
disposition of moneys collected under the provisions of this title
Sec. 286. (a) * * *
* * * * * * *
(h) Disposition of Receipts.--(1)(A) There is established in
the general fund of the Treasury a separate account which shall
be known as the ``Immigration User Fee Account''.
Notwithstanding any other section of this title, there shall be
deposited as offsetting receipts into the Immigration User Fee
Account all fees collected under subsection (d) of this
section, to remain available until expended. At the end of each
2-year period, beginning with the creation of this account, the
Attorney General, following a public rulemaking with
opportunity for notice and comment, shall submit a report to
the Congress concerning the status of the account, including
any balances therein, and recommend any adjustment in the
prescribed fee that may be required to ensure that the receipts
collected from the fee charged for the succeeding two years
equal, as closely as possible, the cost of providing these
services.
(B) Notwithstanding any other provisions of law, all civil
fines or penalties collected pursuant to sections [271] 243(c),
271, and 273 of this title and all liquidated damages and
expenses collected pursuant to this Act shall be deposited in
the Immigration User Fee Account.
(2)(A) The Secretary of the Treasury shall refund out of the
Immigration User Fee Account to any appropriation the amount
paid out of such appropriation for expenses incurred by the
Attorney General in providing immigration inspection and
preinspection services for commercial aircraft or vessels and
in--
(i) providing overtime immigration inspection
services for commercial aircraft or vessels;
(ii) administration of debt recovery, including the
establishment and operation of a national collections
office;
(iii) expansion, operation and maintenance of
information systems for nonimmigrant control and debt
collection;
(iv) detection of fraudulent documents used by
passengers traveling to the United States, including
training of, and technical assistance to, commercial
airline personnel regarding such detection; [and]
(v) providing detention and [deportation] removal
services for[: excludable] inadmissible aliens arriving
on commercial aircraft and vessels[; and] and for any
alien who is [excludable] inadmissible under section
212(a) who has attempted illegal entry into the United
States through avoidance of immigration inspection at
air or sea ports-of-entry[.]; and
(vi) providing [exclusion] removal and asylum
proceedings at air or sea ports-of-entry for[:
excludable] inadmissible aliens arriving on commercial
aircraft and vessels including immigration [exclusion]
removal proceedings resulting from presentation of
fraudulent documents and failure to present
documentation[; and] and for any alien who is
[excludable] inadmissible under section 212(a) who has
attempted illegal entry into the United States through
avoidance of immigration inspection at air or sea
ports-of-entry.
The Attorney General shall provide for expenditures for
training and assistance described in clause (iv) in an amount,
for any fiscal year, not less than 5 percent of the total of
the expenses incurred that are described in the previous
sentence.
(B) The amounts which are required to be refunded under
subparagraph (A) shall be refunded at least quarterly on the
basis of estimates made by the Attorney General of the expenses
referred to in subparagraph (A). Proper adjustments shall be
made in the amounts subsequently refunded under subparagraph
(A) to the extent prior estimates were in excess of, or less
than, the amount required to be refunded under subparagraph
(A).
* * * * * * *
(q) Land Border Inspection Fee Account.--(1) Notwithstanding
any other provision of law, the Attorney General is authorized
to establish, by regulation, [a project] projects under which a
fee may be charged and collected for inspection services
provided at one or more land border points of entry. [Such
project] Such projects may include the establishment of
commuter lanes to be made available to qualified United States
citizens and aliens, as determined by the Attorney General.
* * * * * * *
[(5)(A) The program authorized in this subsection shall
terminate on September 30, 1993, unless further authorized by
an Act of Congress.
[(B) The provisions set forth in this subsection shall take
effect 30 days after submission of a written plan by the
Attorney General detailing the proposed implementation of the
project specified in paragraph (1).
[(C) If implemented, the Attorney General shall prepare and
submit on a quarterly basis, until September 30, 1993, a status
report on the land border inspection project.]
(r) Breached Bond/Detention Fund.--
(1) * * *
* * * * * * *
(4) The amount required to be refunded from the Fund
for fiscal year 1994 and thereafter shall be refunded
in accordance with estimates made in the budget request
of the Attorney General for those fiscal years:
Provided, That any proposed changes in the amounts
designated in said budget requests shall only be made
after notification to the Committees on Appropriations
of the House of Representatives and the Senate in
accordance with section 606 of Public Law 102-395.
* * * * * * *
(6) For fiscal year 1993 only, the Attorney General
may transfer up to $1,000,000 from the Immigration User
Fee Account to the Fund for initial expenses necessary
to enhance collection efforts: Provided, That any such
transfers shall be refunded from Fund back to the
Immigration User Fee Account by December 31, 1993.
* * * * * * *
powers of immigration officers and employees
Sec. 287. (a) Any officer or employee of the Service
authorized under regulations prescribed by the Attorney General
shall have power without warrant--
(1) to interrogate any alien or person believed to be
an alien as to his right to be or to remain in the
United States;
(2) to arrest any alien who in his presence or view
is entering or attempting to enter the United States in
violation of any law or regulation made in pursuance of
law regulating the admission, exclusion, [or expulsion]
expulsion, or removal of aliens, or to arrest any alien
in the United States, if he has reason to believe that
the alien so arrested is in the United States in
violation of any such law or regulation and is likely
to escape before a warrant can be obtained for his
arrest, but the alien arrested shall be taken without
unnecessary delay for examination before an officer of
the Service having authority to examine aliens as to
their right to enter or remain in the United States;
* * * * * * *
(4) to make arrests for felonies which have been
committed and which are cognizable under any law of the
United States regulating the admission, exclusion, [or
expulsion] expulsion, or removal of aliens, if he has
reason to believe that the person so arrested is guilty
of such felony and if there is likelihood of the person
escaping before a warrant can be obtained for his
arrest, but the person arrested shall be taken without
unnecessary delay before the nearest available officer
empowered to commit persons charged with offenses
against the laws of the United States; and
* * * * * * *
(c) Any officer or employee of the Service authorized and
designated under regulations prescribed by the Attorney
General, whether individually or as one of a class, shall have
power to conduct a search, without warrant, of the person, and
of the personal effects in the possession of any person seeking
admission to the United States, concerning whom such officer or
employee may have reasonable cause to suspect that grounds
exist for [exclusion from] denial of admission to the United
States under this Act which would be disclosed by such search.
* * * * * * *
(f)(1) Under regulations of the Attorney General, the
Commissioner shall provide for the fingerprinting and
photographing of each alien 14 years of age or older against
whom a proceeding is commenced under section [242] 240.
(2) Such fingerprints and photographs shall be made available
to Federal, State, and local law enforcement agencies, upon
request.
* * * * * * *
central file; information from other departments and agencies
Sec. 290. (a) There shall be established in the office of the
Commissioner, for the use of the security and enforcement
agencies of the Government of the United States, a central
index, which shall contain the names of all aliens heretofore
[admitted to the United States, or excluded therefrom] admitted
or denied admission to the United States, insofar as such
information is available from the existing records of the
Service, and the names of all aliens hereafter [admitted to the
United States, or excluded therefrom] admitted or denied
admission to the United States, the names of their sponsors of
record, if any, and such other relevant information as the
Attorney General shall require as an aid to the proper
enforcement of this Act.
(b) Any information in any records kept by any department or
agency of the Government as to the identity and location of
aliens in the United States shall be made available to the
Service upon request made by the Attorney General to the head
of any such department or agency.
[(c) The Secretary of Health and Human Services shall notify
the Attorney General upon request whenever any alien is issued
a social security account number and social security card. The
Secretary shall also furnish such available information as may
be requested by the Attorney General regarding the identity and
location of aliens in the United States.]
(c)(1) Not later than 3 months after the end of each fiscal
year (beginning with fiscal year 1995), the Commissioner of
Social Security shall report to the Committees on the Judiciary
of the House of Representatives and the Senate on the aggregate
number of social security account numbers issued to aliens not
authorized to be employed to which earnings were reported to
the Social Security Administration in such fiscal year.
(2) If earnings are reported on or after January 1, 1996, to
the Social Security Administration on a social security account
number issued to an alien not authorized to work in the United
States, the Commissioner of Social Security shall provide the
Attorney General with information regarding the name and
address of the alien, the name and address of the person
reporting the earnings, and the amount of the earnings. The
information shall be provided in an electronic form agreed upon
by the Commissioner and the Attorney General.
* * * * * * *
burden of proof
Sec. 291. Whenever any person makes application for a visa or
any other document required for entry, or makes application for
admission, or otherwise attempts to enter the United States,
the burden of proof shall be upon such person to establish that
he is eligible to receive such visa or such document, or is not
[subject to exclusion] inadmissible under any provision of this
Act, and, if an alien, that he is entitled to the nonimmigrant;
[immigrant, special immigrant, immediate relative] immigrant
status, special immigrant status, status as a spouse or child
of a citizen of the United States, or refugee status claimed,
as the case may be. If such person fails to establish to the
satisfaction of the consular officer that he is eligible to
receive a visa or other document required for entry, no visa or
other document required for entry shall be issued to such
person, nor shall such person be admitted to the United States
unless he establishes to the satisfaction of the Attorney
General that he is not [subject to exclusion] inadmissible
under any provision of this Act. In any [deportation] removal
proceeding under chapter [5] 4 against any person, the burden
of proof shall be upon such person to show the time, place, and
manner of his entry into the United States, but in presenting
such proof he shall be entitled to the production of his visa
or other entry document, if any, and of any other documents and
records, not considered by the Attorney General to be
confidential, pertaining to such entry in the custody of the
Service. If such burden of proof is not sustained, such person
shall be presumed to be in the United States in violation of
law.
right to counsel
Sec. 292. In any [exclusion or deportation] removal
proceedings before [a special inquiry officer] an immigration
judge and in any appeal proceedings before the Attorney General
from any such [exclusion or deportation] removal proceedings,
the person concerned shall have the privilege of being
represented (at no expense to the Government) by such counsel,
authorized to practice in such proceedings, as he shall choose.
* * * * * * *
undercover investigation authority
Sec. 294. (a) In General.--With respect to any undercover
investigative operation of the Service which is necessary for
the detection and prosecution of crimes against the United
States--
(1) sums appropriated for the Service may be used for
leasing space within the United States and the
territories and possessions of the United States
without regard to the following provisions of law:
(A) section 3679(a) of the Revised Statutes
(31 U.S.C. 1341),
(B) section 3732(a) of the Revised Statutes
(41 U.S.C. 11(a)),
(C) section 305 of the Act of June 30, 1949
(63 Stat. 396; 41 U.S.C. 255),
(D) the third undesignated paragraph under
the heading ``Miscellaneous'' of the Act of
March 3, 1877 (19 Stat. 370; 40 U.S.C. 34),
(E) section 3648 of the Revised Statutes (31
U.S.C. 3324),
(F) section 3741 of the Revised Statutes (41
U.S.C. 22), and
(G) subsections (a) and (c) of section 304 of
the Federal Property and Administrative
Services Act of 1949 (63 Stat. 395; 41 U.S.C.
254 (a) and (c));
(2) sums appropriated for the Service may be used to
establish or to acquire proprietary corporations or
business entities as part of an undercover operation,
and to operate such corporations or business entities
on a commercial basis, without regard to the provisions
of section 304 of the Government Corporation Control
Act (31 U.S.C. 9102);
(3) sums appropriated for the Service, and the
proceeds from the undercover operation, may be
deposited in banks or other financial institutions
without regard to the provisions of section 648 of
title 18, United States Code, and of section 3639 of
the Revised Statutes (31 U.S.C. 3302); and
(4) the proceeds from the undercover operation may be
used to offset necessary and reasonable expenses
incurred in such operation without regard to the
provisions of section 3617 of the Revised Statutes (31
U.S.C. 3302).
The authority set forth in this subsection may be exercised
only upon written certification of the Commissioner, in
consultation with the Deputy Attorney General, that any action
authorized by paragraph (1), (2), (3), or (4) is necessary for
the conduct of the undercover operation.
(b) Disposition of Proceeds No Longer Required.--As soon as
practicable after the proceeds from an undercover investigative
operation, carried out under paragraphs (3) and (4) of
subsection (a), are no longer necessary for the conduct of the
operation, the proceeds or the balance of the proceeds
remaining at the time shall be deposited into the Treasury of
the United States as miscellaneous receipts.
(c) Disposition of Certain Corporations and Business
Entities.--If a corporation or business entity established or
acquired as part of an undercover operation under paragraph (2)
of subsection (a) with a net value of over $50,000 is to be
liquidated, sold, or otherwise disposed of, the Service, as
much in advance as the Commissioner or Commissioner's designee
determines practicable, shall report the circumstances to the
Attorney General, the Director of the Office of Management and
Budget, and the Comptroller General. The proceeds of the
liquidation, sale, or other disposition, after obligations are
met, shall be deposited in the Treasury of the United States as
miscellaneous receipts.
(d) Financial Audits.--The Service shall conduct detailed
financial audits of closed undercover operations on a quarterly
basis and shall report the results of the audits in writing to
the Deputy Attorney General.
TITLE III--NATIONALITY AND NATURALIZATION
* * * * * * *
Chapter 2--Nationality Through Naturalization
* * * * * * *
requirements as to residence, good moral character, attachment to the
principles of the constitution, and favorable disposition to the united
states
Sec. 316. (a) No person, except as otherwise provided in this
title, shall be naturalized, unless such applicant, (1)
immediately preceding the date of filing his application for
naturalization has resided continuously, after being lawfully
admitted for permanent residence, within the United States for
at least five years and during the five years immediately
preceding the date of filing his application has been
physically present therein for periods totaling at least half
of that time, and who has resided within the State or within
the district of the Service in the United States in which the
applicant filed the application for at least three months, (2)
has resided continuously within the United States from the date
of the application up to the time of admission to citizenship,
[and] (3) during all the periods referred to in this subsection
has been and still is a person of good moral character,
attached to the principles of the Constitution of the United
States, and well disposed to the good order and happiness of
the United States, and (4) in the case of an applicant that has
received assistance under a means-tested public benefits
program (as defined in subsection (f)(3) of section 213A)
administered by a Federal, State, or local agency and with
respect to which amounts may be owing under an affidavit of
support executed under such section, provides satisfactory
evidence that there are no outstanding amounts that may be owed
to any such Federal, State, or local agency pursuant to such
affidavit by the sponsor who executed such affidavit, except as
provided in subsection (g).
* * * * * * *
(f)(1) Whenever the Director of Central Intelligence, the
Attorney General and the Commissioner of Immigration determine
that an applicant otherwise eligible for naturalization has
made an extraordinary contribution to the national security of
the United States or to the conduct of United States
intelligence activities, the applicant may be naturalized
without regard to the residence and physical presence
requirements of this section, or to the prohibitions of section
313 of this Act, and no residence within a particular State or
district of the Service in the United States shall be required:
Provided, That the applicant has continuously resided in the
United States for at least one year prior to naturalization:
Provided further, That the provisions of this subsection shall
not apply to any alien described in [subparagraphs (A) through
(D) of paragraph 243(h)(2)] clauses (i) through (v) of section
208(b)(2)(A) of this Act.
* * * * * * *
(g) Clause (4) of subsection (a) shall not apply to an
applicant where the applicant can demonstrate that--
(A) either--
(i) the applicant has been battered or
subject to extreme cruelty in the United States
by a spouse or parent or by a member of the
spouse or parent's family residing in the same
household as the applicant and the spouse or
parent consented or acquiesced to such battery
or cruelty, or
(ii) the applicant's child has been battered
or subject to extreme cruelty in the United
States by the applicant's spouse or parent
(without the active participation of the
applicant in the battery or extreme cruelty),
or by a member of the spouse or parent's family
residing in the same household as the applicant
when the spouse or parent consented or
acquiesced to and the applicant did not
actively participate in such battery or
cruelty;
(B) such battery or cruelty has led to the issuance
of an order of a judge or an administrative law judge
or a prior determination of the Service; and
(C) the need for the public benefits received as to
which amounts are owing had a substantial connection to
the battery or cruelty described in subparagraph (A).
prerequisite to naturalization; burden of proof
Sec. 318. Except as otherwise provided in this title, no
person shall be naturalized unless he has been lawfully
admitted to the United States for permanent residence in
accordance with all applicable provisions of this Act. The
burden of proof shall be upon such person to show that he
entered the United States lawfully, and the time, place, and
manner of such entry into the United States, but in presenting
such proof he shall be entitled to the production of his
immigrant visa, if any, or of other entry document, if any, and
of any other documents and records, not considered by the
Attorney General to be confidential, pertaining to such entry,
in the custody of the Service. Notwithstanding the provisions
of section 405(b), and except as provided in sections 328 and
329 no person shall be naturalized against whom there is
outstanding a final finding of deportability pursuant to a
warrant of arrest issued under the provisions of this or any
other Act; and no application for naturalization shall be
considered by the Attorney General if there is pending against
the applicant a [deportation] removal proceeding pursuant to a
warrant of arrest issued under the provisions of this or any
other Act: Provided, That the findings of the Attorney General
in terminating [deportation] removal proceedings or in
[suspending] canceling the [deportation] removal of an alien
pursuant to the provisions of this Act, shall not be deemed
binding in any way upon the Attorney General with respect to
the question of whether such person has established his
eligibility for naturalization as required by this title.
* * * * * * *
Chapter 3--Loss of Nationality
* * * * * * *
restrictions on loss of nationality
Sec. 351. (a) Except as provided in paragraphs (6) and (7) of
section 349(a) of this title, no national of the United States
can lose United States nationality[,] under this Act while
within the United States or any of its outlying possessions,
but loss of nationality shall result from the performance
within the United States or any of its outlying possessions of
any of the acts or the fulfillment of any of the conditions
specified in this chapter if and when the national thereafter
takes up a residence outside the United States and its outlying
possessions.
* * * * * * *
Chapter 4--Miscellaneous
* * * * * * *
proceedings for declaration of united states nationality in the event
of denial of rights and privileges as national
Sec. 360. (a) If any person who is within the United States
claims a right or privilege as a national of the United States
and is denied such right or privilege by any department or
independent agency, or official thereof, upon the ground that
he is not a national of the United States, such person may
institute an action under the provisions of section 2201 of
title 28, United States Code, against the head of such
department or independent agency for a judgment declaring him
to be a national of the United States, except that no such
action may be instituted in any case if the issue of such
person's status as a national of the United States (1) arose by
reason of or in connection with any [exclusion] removal
proceeding under the provisions of this or any other act, or
(2) is in issue in any such [exclusion] removal proceeding. An
action under this subsection may be instituted only within five
years after the final administrative denial of such right or
privilege and shall be filed in the district court of the
United States for the district in which such person resides or
claims a residence, and jurisdiction over such officials in
such cases is hereby conferred upon those courts.
* * * * * * *
(c) A person who has been issued a certificate of identity
under the provisions of subsection (b), and while in possession
thereof, may apply for admission to the United States at any
port of entry, and shall be subject to all the provisions of
this Act relating to the conduct of proceedings involving
aliens seeking admission to the United States. A final
determination by the Attorney General that any such person is
not entitled to admission to the United States shall be subject
to review by any court of competent jurisdiction in habeas
corpus proceedings and not otherwise. Any person described in
this section who is finally [excluded from] denied admission to
the United States shall be subject to all the provisions of
this Act relating to aliens seeking admission to the United
States.
* * * * * * *
TITLE IV--MISCELLANEOUS AND REFUGEE ASSISTANCE
* * * * * * *
Chapter 2--Refugee Assistance
* * * * * * *
authorization for programs for domestic resettlement of and assistance
to refugees
Sec. 412. (a) * * *
(b) Program of Initial Resettlement. --(1) * * *
* * * * * * *
(3) The Secretary is authorized[,] to make arrangements
(including cooperative arrangements with other Federal
agencies) for the temporary care of refugees in the United
States in emergency circumstances, including the establishment
of processing centers, if necessary, without regard to such
provisions of law (other than the Renegotiation Act of 1951 and
section 414(b) of this chapter) regulating the making,
performance, amendment, or modification of contracts and the
expenditure of funds of the United States Government as the
Secretary may specify.
(4) The Secretary[,] shall--
(A) assure that an adequate number of trained staff
are available at the location at which the refugees
enter the United States to assure that all necessary
medical records are available and in proper order;
* * * * * * *
TITLE V--SPECIAL REMOVAL PROCEDURES FOR ALIEN TERRORISTS
definitions
Sec. 501. In this title:
(1) The term ``alien terrorist'' means an alien
described in section 241(a)(4)(B).
(2) The term ``classified information'' has the
meaning given such term in section 1(a) of the
Classified Information Procedures Act (18 U.S.C. App.).
(3) The term ``national security'' has the meaning
given such term in section 1(b) of the Classified
Information Procedures Act (18 U.S.C. App.).
(4) The term ``special attorney'' means an attorney
who is on the panel established under section 502(e).
(5) The term ``special removal court'' means the
court established under section 502(a).
(6) The term ``special removal hearing'' means a
hearing under section 505.
(7) The term ``special removal proceeding'' means a
proceeding under this title.
establishment of special removal court; panel of attorneys to assist
with classified information
Sec. 502. (a) In General.--The Chief Justice of the United
States shall publicly designate 5 district court judges from 5
of the United States judicial circuits who shall constitute a
court which shall have jurisdiction to conduct all special
removal proceedings.
(b) Terms.--Each judge designated under subsection (a) shall
serve for a term of 5 years and shall be eligible for
redesignation, except that the four associate judges first so
designated shall be designated for terms of one, two, three,
and four years so that the term of one judge shall expire each
year.
(c) Chief Judge.--The Chief Justice shall publicly designate
one of the judges of the special removal court to be the chief
judge of the court. The chief judge shall promulgate rules to
facilitate the functioning of the court and shall be
responsible for assigning the consideration of cases to the
various judges.
(d) Expeditious and Confidential Nature of Proceedings.--The
provisions of section 103(c) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1803(c)) shall apply to
proceedings under this title in the same manner as they apply
to proceedings under such Act.
(e) Establishment of Panel of Special Attorneys.--The special
removal court shall provide for the designation of a panel of
attorneys each of whom--
(1) has a security clearance which affords the
attorney access to classified information, and
(2) has agreed to represent permanent resident aliens
with respect to classified information under section
506 in accordance with (and subject to the penalties
under) this title.
application for initiation of special removal proceeding
Sec. 503. (a) In General.--Whenever the Attorney General has
classified information that an alien is an alien terrorist, the
Attorney General, in the Attorney General's discretion, may
seek removal of the alien under this title through the filing
of a written application described in subsection (b) with the
special removal court seeking an order authorizing a special
removal proceeding under this title. The application shall be
submitted in camera and ex parte and shall be filed under seal
with the court.
(b) Contents of Application.--Each application for a special
removal proceeding shall include all of the following:
(1) The identity of the Department of Justice
attorney making the application.
(2) The approval of the Attorney General or the
Deputy Attorney General for the filing of the
application based upon a finding by that individual
that the application satisfies the criteria and
requirements of this title.
(3) The identity of the alien for whom authorization
for the special removal proceedings is sought.
(4) A statement of the facts and circumstances relied
on by the Department of Justice to establish that--
(A) the alien is an alien terrorist and is
physically present in the United States, and
(B) with respect to such alien, adherence to
the provisions of title II regarding the
removal of aliens would pose a risk to the
national security of the United States.
(5) An oath or affirmation respecting each of the
facts and statements described in the previous
paragraphs.
(c) Right to Dismiss.--The Department of Justice retains the
right to dismiss a removal action under this title at any stage
of the proceeding.
consideration of application
Sec. 504. (a) In General.--In the case of an application
under section 503 to the special removal court, a single judge
of the court shall be assigned to consider the application. The
judge, in accordance with the rules of the court, shall
consider the application and may consider other information,
including classified information, presented under oath or
affirmation. The judge shall consider the application (and any
hearing thereof) in camera and ex parte. A verbatim record
shall be maintained of any such hearing.
(b) Approval of Order.--The judge shall enter ex parte the
order requested in the application if the judge finds, on the
basis of such application and such other information (if any),
that there is probable cause to believe that--
(1) the alien who is the subject of the application
has been correctly identified and is an alien
terrorist, and
(2) adherence to the provisions of title II regarding
the removal of the identified alien would pose a risk
to the national security of the United States.
(c) Denial of Order.--If the judge denies the order requested
in the application, the judge shall prepare a written statement
of the judge's reasons for the denial.
(d) Exclusive Provisions.--Whenever an order is issued under
this section with respect to an alien--
(1) the alien's rights regarding removal and
expulsion shall be governed solely by the provisions of
this title, and
(2) except as they are specifically referenced, no
other provisions of this Act shall be applicable.
special removal hearings
Sec. 505. (a) In General.--In any case in which the
application for the order is approved under section 504, a
special removal hearing shall be conducted under this section
for the purpose of determining whether the alien to whom the
order pertains should be removed from the United States on the
grounds that the alien is an alien terrorist. Consistent with
section 506, the alien shall be given reasonable notice of the
nature of the charges against the alien and a general account
of the basis for the charges. The alien shall be given notice,
reasonable under all the circumstances, of the time and place
at which the hearing will be held. The hearing shall be held as
expeditiously as possible.
(b) Use of Same Judge.--The special removal hearing shall be
held before the same judge who granted the order pursuant to
section 504 unless that judge is deemed unavailable due to
illness or disability by the chief judge of the special removal
court, or has died, in which case the chief judge shall assign
another judge to conduct the special removal hearing. A
decision by the chief judge pursuant to the preceding sentence
shall not be subject to review by either the alien or the
Department of Justice.
(c) Rights in Hearing.--
(1) Public hearing.--The special removal hearing
shall be open to the public.
(2) Right of counsel.--The alien shall have a right
to be present at such hearing and to be represented by
counsel. Any alien financially unable to obtain counsel
shall be entitled to have counsel assigned to represent
the alien. Such counsel shall be appointed by the judge
pursuant to the plan for furnishing representation for
any person financially unable to obtain adequate
representation for the district in which the hearing is
conducted, as provided for in section 3006A of title
18, United States Code. All provisions of that section
shall apply and, for purposes of determining the
maximum amount of compensation, the matter shall be
treated as if a felony was charged.
(3) Introduction of evidence.--The alien shall have a
right to introduce evidence on the alien's own behalf.
(4) Examination of witnesses.--Except as provided in
section 506, the alien shall have a reasonable
opportunity to examine the evidence against the alien
and to cross-examine any witness.
(5) Record.--A verbatim record of the proceedings and
of all testimony and evidence offered or produced at
such a hearing shall be kept.
(6) Decision based on evidence at hearing.--The
decision of the judge in the hearing shall be based
only on the evidence introduced at the hearing,
including evidence introduced under subsection (e).
(7) No right to ancillary relief.--In the hearing,
the judge is not authorized to consider or provide for
relief from removal based on any of the following:
(A) Asylum under section 208.
(B) Withholding of removal under section
241(b)(3).
(C) Cancellation of removal under section
240A.
(D) Voluntary departure under section 240B.
(E) Adjustment of status under section 245.
(F) Registry under section 249.
(d) Subpoenas.--
(1) Request.--At any time prior to the conclusion of
the special removal hearing, either the alien or the
Department of Justice may request the judge to issue a
subpoena for the presence of a named witness (which
subpoena may also command the person to whom it is
directed to produce books, papers, documents, or other
objects designated therein) upon a satisfactory showing
that the presence of the witness is necessary for the
determination of any material matter. Such a request
may be made ex parte except that the judge shall inform
the Department of Justice of any request for a subpoena
by the alien for a witness or material if compliance
with such a subpoena would reveal evidence or the
source of evidence which has been introduced, or which
the Department of Justice has received permission to
introduce, in camera and ex parte pursuant to
subsection (e) and section 506, and the Department of
Justice shall be given a reasonable opportunity to
oppose the issuance of such a subpoena.
(2) Payment for attendance.--If an application for a
subpoena by the alien also makes a showing that the
alien is financially unable to pay for the attendance
of a witness so requested, the court may order the
costs incurred by the process and the fees of the
witness so subpoenaed to be paid from funds
appropriated for the enforcement of title II.
(3) Nationwide service.--A subpoena under this
subsection may be served anywhere in the United States.
(4) Witness fees.--A witness subpoenaed under this
subsection shall receive the same fees and expenses as
a witness subpoenaed in connection with a civil
proceeding in a court of the United States.
(5) No access to classified information.--Nothing in
this subsection is intended to allow an alien to have
access to classified information.
(e) Introduction of Classified Information.--
(1) In general.--When classified information has been
summarized pursuant to section 506(b) or where a
finding has been made under section 506(b)(5) that no
summary is possible, classified information shall be
introduced (either in writing or through testimony) in
camera and ex parte and neither the alien nor the
public shall be informed of such evidence or its
sources other than through reference to the summary
provided pursuant to such section. Notwithstanding the
previous sentence, the Department of Justice may, in
its discretion and, in the case of classified
information, after coordination with the originating
agency, elect to introduce such evidence in open
session.
(2) Treatment of electronic surveillance
information.--
(A) Use of electronic surveillance.--The
Government is authorized to use in a special
removal proceedings the fruits of electronic
surveillance and unconsented physical searches
authorized under the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.) without regard to subsections (c), (e),
(f), (g), and (h) of section 106 of that Act.
(B) No discovery of electronic surveillance
information.--An alien subject to removal under
this title shall have no right of discovery of
information derived from electronic
surveillance authorized under the Foreign
Intelligence Surveillance Act of 1978 or
otherwise for national security purposes. Nor
shall such alien have the right to seek
suppression of evidence.
(C) Certain procedures not applicable.--The
provisions and requirements of section 3504 of
title 18, United States Code, shall not apply
to procedures under this title.
(3) Rights of united states.--Nothing in this section
shall prevent the United States from seeking protective
orders and from asserting privileges ordinarily
available to the United States to protect against the
disclosure of classified information, including the
invocation of the military and state secrets
privileges.
(f) Inclusion of Certain Evidence.--The Federal Rules of
Evidence shall not apply to hearings under this section.
Evidence introduced at the special removal hearing, either in
open session or in camera and ex parte, may, in the discretion
of the Department of Justice, include all or part of the
information presented under section 504 used to obtain the
order for the hearing under this section.
(g) Arguments.--Following the receipt of evidence, the
attorneys for the Department of Justice and for the alien shall
be given fair opportunity to present argument as to whether the
evidence is sufficient to justify the removal of the alien. The
attorney for the Department of Justice shall open the argument.
The attorney for the alien shall be permitted to reply. The
attorney for the Department of Justice shall then be permitted
to reply in rebuttal. The judge may allow any part of the
argument that refers to evidence received in camera and ex
parte to be heard in camera and ex parte.
(h) Burden of Proof.--In the hearing the Department of
Justice has the burden of showing by clear and convincing
evidence that the alien is subject to removal because the alien
is an alien terrorist. If the judge finds that the Department
of Justice has met this burden, the judge shall order the alien
removed and detained pending removal from the United States. If
the alien was released pending the special removal hearing, the
judge shall order the Attorney General to take the alien into
custody.
(i) Written Order.--At the time of rendering a decision as to
whether the alien shall be removed, the judge shall prepare a
written order containing a statement of facts found and
conclusions of law. Any portion of the order that would reveal
the substance or source of information received in camera and
ex parte pursuant to subsection (e) shall not be made available
to the alien or the public.
consideration of classified information
Sec. 506. (a) Consideration In Camera and Ex Parte.--In any
case in which the application for the order authorizing the
special procedures of this title is approved, the judge who
granted the order shall consider each item of classified
information the Department of Justice proposes to introduce in
camera and ex parte at the special removal hearing and shall
order the introduction of such information pursuant to section
505(e) if the judge determines the information to be relevant.
(b) Preparation and Provision of Written Summary.--
(1) Preparation.--The Department of Justice shall
prepare a written summary of such classified
information which does not pose a risk to national
security.
(2) Conditions for approval by judge and provision to
alien.--The judge shall approve the summary so long as
the judge finds that the summary is sufficient--
(A) to inform the alien of the general nature
of the evidence that the alien is an alien
terrorist, and
(B) to permit the alien to prepare a defense
against removal.
The Department of Justice shall cause to be delivered
to the alien a copy of the summary.
(3) Opportunity for correction and resubmittal.--If
the judge does not approve the summary, the judge shall
provide the Department a reasonable opportunity to
correct the deficiencies identified by the court and to
submit a revised summary.
(4) Conditions for termination of proceedings if
summary not approved.--
(A) In general.--If, subsequent to the
opportunity described in paragraph (3), the
judge does not approve the summary, the judge
shall terminate the special removal hearing
unless the judge makes the findings described
in subparagraph (B).
(B) Findings.--The findings described in this
subparagraph are, with respect to an alien,
that--
(i) the continued presence of the
alien in the United States would likely
cause serious and irreparable harm to
the national security or death or
serious bodily injury to any person,
and
(ii) the provision of the required
summary would likely cause serious and
irreparable harm to the national
security or death or serious bodily
injury to any person.
(5) Continuation of hearing without summary.--If a
judge makes the findings described in paragraph
(4)(B)--
(A) if the alien involved is an alien
lawfully admitted for permanent residence, the
procedures described in subsection (c) shall
apply; and
(B) in all cases the special removal hearing
shall continue, the Department of Justice shall
cause to be delivered to the alien a statement
that no summary is possible, and the classified
information submitted in camera and ex parte
may be used pursuant to section 505(e).
(c) Special Procedures for Access and Challenges to
Classified Information by Special Attorneys in Case of Lawful
Permanent Aliens.--
(1) In general.--The procedures described in this
subsection are that the judge (under rules of the
special removal court) shall designate a special
attorney to assist the alien--
(A) by reviewing in camera the classified
information on behalf of the alien, and
(B) by challenging through an in camera
proceeding the veracity of the evidence
contained in the classified information.
(2) Restrictions on disclosure.--A special attorney
receiving classified information under paragraph (1)--
(A) shall not disclose the information to the
alien or to any other attorney representing the
alien, and
(B) who discloses such information in
violation of subparagraph (A) shall be subject
to a fine under title 18, United States Code,
imprisoned for not less than 10 years nor more
than 25 years, or both.
appeals
Sec. 507. (a) Appeals of Denials of Applications for
Orders.--The Department of Justice may seek a review of the
denial of an order sought in an application by the United
States Court of Appeals for the District of Columbia Circuit by
notice of appeal which must be filed within 20 days after the
date of such denial. In such a case the entire record of the
proceeding shall be transmitted to the Court of Appeals under
seal and the Court of Appeals shall hear the matter ex parte.
In such a case the Court of Appeals shall review questions of
law de novo, but a prior finding on any question of fact shall
not be set aside
unless such finding was clearly erroneous.
(b) Appeals of Determinations About Summaries of Classified
Information.--Either party may take an interlocutory appeal to
the United States Court of Appeals for the District of Columbia
Circuit of--
(1) any determination by the judge pursuant to
section 506(a)--
(A) concerning whether an item of evidence
may be introduced in camera and ex parte, or
(B) concerning the contents of any summary of
evidence to be introduced in camera and ex
parte prepared pursuant to section 506(b); or
(2) the refusal of the court to make the findings
permitted by section 506(b)(4)(B).
In any interlocutory appeal taken pursuant to this subsection,
the entire record, including any proposed order of the judge or
summary of evidence, shall be transmitted to the Court of
Appeals under seal and the matter shall be heard ex parte.
(c) Appeals of Decision in Hearing.--
(1) In general.--Subject to paragraph (2), the
decision of the judge after a special removal hearing
may be appealed by either the alien or the Department
of Justice to the United States Court of Appeals for
the District of Columbia Circuit by notice of appeal.
(2) Automatic appeals in cases of permanent resident
aliens in which no summary provided.--
(A) In general.--Unless the alien waives the
right to a review under this paragraph, in any
case involving an alien lawfully admitted for
permanent residence who is denied a written
summary of classified information under section
506(b)(4) and with respect to which the
procedures described in section 506(c) apply,
any order issued by the judge shall be reviewed
by the Court of Appeals for the District of
Columbia Circuit.
(B) Use of special attorney.--With respect to
any issue relating to classified information
that arises in such review, the alien shall be
represented only by the special attorney
designated under section 506(c)(1) on behalf of
the alien.
(d) General Provisions Relating to Appeals.--
(1) Notice.--A notice of appeal pursuant to
subsection (b) or (c) (other than under subsection
(c)(2)) must be filed within 20 days after the date of
the order with respect to which the appeal is sought,
during which time the order shall not be executed.
(2) Transmittal of record.--In an appeal or review to
the Court of Appeals pursuant to subsection (b) or
(c)--
(A) the entire record shall be transmitted to
the Court of Appeals, and
(B) information received pursuant to section
505(e), and any portion of the judge's order
that would reveal the substance or source of
such information, shall be transmitted under
seal.
(3) Expedited appellate proceeding.--In an appeal or
review to the Court of Appeals pursuant to subsection
(b) or (c):
(A) Review.--The appeal or review shall be
heard as expeditiously as practicable and the
Court may dispense with full briefing and hear
the matter solely on the record of the judge of
the special removal court and on such briefs or
motions as the Court may require to be filed by
the parties.
(B) Disposition.--The Court shall uphold or
reverse the judge's order within 60 days after
the date of the issuance of the judge's final
order.
(4) Standard for review.--In an appeal or review to
the Court of Appeals pursuant to subsection (b) or (c):
(A) Questions of law.--The Court of Appeals
shall review all questions of law de novo.
(B) Questions of fact.--(i) Subject to clause
(ii), a prior finding on any question of fact
shall not be set aside unless such finding was
clearly erroneous.
(ii) In the case of a review under subsection
(c)(2) in which an alien lawfully admitted for
permanent residence was denied a written
summary of classified information under section
506(b)(4), the Court of Appeals shall review
questions of fact de novo.
(e) Certiorari.--Following a decision by the Court of Appeals
pursuant to subsection (b) or (c), either the alien or the
Department of Justice may petition the Supreme Court for a writ
of certiorari. In any such case, any information transmitted to
the Court of Appeals under seal shall, if such information is
also submitted to the Supreme Court, be transmitted under seal.
Any order of removal shall not be stayed pending disposition of
a writ of certiorari except as provided by the Court of Appeals
or a Justice of the Supreme Court.
(f) Appeals of Detention Orders.--
(1) In general.-- The provisions of sections 3145
through 3148 of title 18, United States Code,
pertaining to review and appeal of a release or
detention order, penalties for failure to appear,
penalties for an offense committed while on release,
and sanctions for violation of a release condition
shall apply to an alien to whom section 508(b)(1)
applies. In applying the previous sentence--
(A) for purposes of section 3145 of such
title an appeal shall be taken to the United
States Court of Appeals for the District of
Columbia Circuit, and
(B) for purposes of section 3146 of such
title the alien shall be considered released in
connection with a charge of an offense
punishable by life imprisonment.
(2) No review of continued detention.--The
determinations and actions of the Attorney General
pursuant to section 508(c)(2)(C) shall not be subject
to judicial review, including application for a writ of
habeas corpus, except for a claim by the alien that
continued detention violates the alien's rights under
the Constitution. Jurisdiction over any such challenge
shall lie exclusively in the United States Court of
Appeals for the District of Columbia Circuit.
detention and custody
Sec. 508. (a) Initial Custody.--
(1) Upon filing application.--Subject to paragraph
(2), the Attorney General may take into custody any
alien with respect to whom an application under section
503 has been filed and, notwithstanding any other
provision of law, may retain such an alien in custody
in accordance with the procedures authorized by this
title.
(2) Special rules for permanent resident aliens.--An
alien lawfully admitted for permanent residence shall
be entitled to a release hearing before the judge
assigned to hear the special removal hearing. Such an
alien shall be detained pending the special removal
hearing, unless the alien demonstrates to the court
that--
(A) the alien, if released upon such terms
and conditions as the court may prescribe
(including the posting of any monetary amount),
is not likely to flee, and
(B) the alien's release will not endanger
national security or the safety of any person
or the community.
The judge may consider classified information submitted
in camera and ex parte in making a determination under
this paragraph.
(3) Release if order denied and no review sought.--
(A) In general.--Subject to subparagraph (B),
if a judge of the special removal court denies
the order sought in an application with respect
to an alien and the Department of Justice does
not seek review of such denial, the alien shall
be released from custody.
(B) Application of regular procedures.--
Subparagraph (A) shall not prevent the arrest
and detention of the alien pursuant to title
II.
(b) Conditional Release If Order Denied and Review Sought.--
(1) In general.--If a judge of the special removal
court denies the order sought in an application with
respect to an alien and the Department of Justice seeks
review of such denial, the judge shall release the
alien from custody subject to the least restrictive
condition or combination of conditions of release
described in section 3142(b) and clauses (i) through
(xiv) of section 3142(c)(1)(B) of title 18, United
States Code, that will reasonably assure the appearance
of the alien at any future proceeding pursuant to this
title and will not endanger the safety of any other
person or the community.
(2) No release for certain aliens.--If the judge
finds no such condition or combination of conditions,
the alien shall remain in custody until the completion
of any appeal authorized by this title.
(c) Custody and Release After Hearing.--
(1) Release.--
(A) In general.--Subject to subparagraph (B),
if the judge decides pursuant to section 505(i)
that an alien should not be removed, the alien
shall be released from custody.
(B) Custody pending appeal.--If the Attorney
General takes an appeal from such decision, the
alien shall remain in custody, subject to the
provisions of section 3142 of title 18, United
States Code.
(2) Custody and removal.--
(A) Custody.--If the judge decides pursuant
to section 505(i) that an alien shall be
removed, the alien shall be detained pending
the outcome of any appeal. After the conclusion
of any judicial review thereof which affirms
the removal order, the Attorney General shall
retain the alien in custody and remove the
alien to a country specified under subparagraph
(B).
(B) Removal.--
(i) In general.--The removal of an
alien shall be to any country which the
alien shall designate if such
designation does not, in the judgment
of the Attorney General, in
consultation with the Secretary of
State, impair the obligation of the
United States under any treaty
(including a treaty pertaining to
extradition) or otherwise adversely
affect the foreign policy of the United
States.
(ii) Alternate countries.--If the
alien refuses to designate a country to
which the alien wishes to be removed or
if the Attorney General, in
consultation with the Secretary of
State, determines that removal of the
alien to the country so designated
would impair a treaty obligation or
adversely affect United States foreign
policy, the Attorney General shall
cause the alien to be removed to any
country willing to receive such alien.
(C) Continued detention.--If no country is
willing to receive such an alien, the Attorney
General may, notwithstanding any other
provision of law, retain the alien in custody.
The Attorney General, in coordination with the
Secretary of State, shall make periodic efforts
to reach agreement with other countries to
accept such an alien and at least every 6
months shall provide to the attorney
representing the alien at the special removal
hearing a written report on the Attorney
General's efforts. Any alien in custody
pursuant to this subparagraph shall be released
from custody solely at the discretion of the
Attorney General and subject to such conditions
as the Attorney General shall deem appropriate.
(D) Fingerprinting.--Before an alien is
transported out of the United States pursuant
to this subsection, or pursuant to an order of
removal because such alien is inadmissible
under section 212(a)(3)(B), the alien shall be
photographed and fingerprinted, and shall be
advised of the provisions of subsection 276(b).
(d) Continued Detention Pending Trial.--
(1) Delay in removal.--Notwithstanding the provisions
of subsection (c)(2), the Attorney General may hold in
abeyance the removal of an alien who has been ordered
removed pursuant to this title to allow the trial of
such alien on any Federal or State criminal charge and
the service of any sentence of confinement resulting
from such a trial.
(2) Maintenance of custody.--Pending the commencement
of any service of a sentence of confinement by an alien
described in paragraph (1), such an alien shall remain
in the custody of the Attorney General, unless the
Attorney General determines that temporary release of
the alien to the custody of State authorities for
confinement in a State facility is appropriate and
would not endanger national security or public safety.
(3) Subsequent removal.--Following the completion of
a sentence of confinement by an alien described in
paragraph (1) or following the completion of State
criminal proceedings which do not result in a sentence
of confinement of an alien released to the custody of
State authorities pursuant to paragraph (2), such an
alien shall be returned to the custody of the Attorney
General who shall proceed to carry out the provisions
of subsection (c)(2) concerning removal of the alien.
(e) Application of Certain Provisions Relating to Escape of
Prisoners.--For purposes of sections 751 and 752 of title 18,
United States Code, an alien in the custody of the Attorney
General pursuant to this title shall be subject to the
penalties provided by those sections in relation to a person
committed to the custody of the Attorney General by virtue of
an arrest on a charge of a felony.
(f) Rights of Aliens in Custody.--
(1) Family and attorney visits.--An alien in the
custody of the Attorney General pursuant to this title
shall be given reasonable opportunity to communicate
with and receive visits from members of the alien's
family, and to contact, retain, and communicate with an
attorney.
(2) Diplomatic contact.--An alien in the custody of
the Attorney General pursuant to this title shall have
the right to contact an appropriate diplomatic or
consular official of the alien's country of citizenship
or nationality or of any country providing
representation services therefore. The Attorney General
shall notify the appropriate embassy, mission, or
consular office of the alien's detention.
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TITLE 18, UNITED STATES CODE
* * * * * * *
PART I--CRIMES
* * * * * * *
CHAPTER 46--FORFEITURE
* * * * * * *
Sec. 982. Criminal forfeiture
(a)(1) The court, in imposing sentence on a person convicted
of an offense in violation of section 5313(a), 5316, or 5324 of
title 31, or of section 1956, 1957, or 1960 of this title,
shall order that the person forfeit to the United States any
property, real or personal, involved in such offense, or any
property traceable to such property. However, no property shall
be seized or forfeited in the case of a violation of section
5313(a) of title 31 by a domestic financial institution
examined by a Federal bank supervisory agency or a financial
institution regulated by the Securities and Exchange Commission
or a partner, director, or employee thereof.
* * * * * * *
(6) The court, in imposing sentence on a person convicted of
a violation of, or conspiracy to violate, section 1541, 1542,
1543, 1544, or 1546 of this title, or a violation of, or
conspiracy to violate, section 1028 of this title if committed
in connection with passport or visa issuance or use, shall
order that the person forfeit to the United States any
property, real or personal, which the person used, or intended
to be used, in committing, or facilitating the commission of,
the violation, and any property constituting, or derived from,
or traceable to, any proceeds the person obtained, directly or
indirectly, as a result of such violation.
(b)(1) Property subject to forfeiture under this section, any
seizure and disposition thereof, and any administrative or
judicial proceeding in relation thereto, shall be governed--
(A) in the case of a forfeiture under subsection
(a)(1) of this section, by subsections (c) and (e)
through (p) of section 413 of the Comprehensive Drug
Abuse Prevention and Control Act of 1970 (21 U.S.C.
853); and
(B) in the case of a forfeiture under subsection
(a)(2) or (a)(6) of this section, by subsections (b),
(c), (e), and (g) through (p) of section 413 of such
Act.
* * * * * * *
Sec. 986. Subpoenas for bank records
(a) At any time after the commencement of any action for
forfeiture in rem brought by the United States under section
1028, 1541, 1542, 1543, 1544, 1546, 1956, 1957, or 1960 of this
title, section 5322 or 5324 of title 31, United States Code, or
the Controlled Substances Act, any party may request the Clerk
of the Court in the district in which the proceeding is pending
to issue a subpoena duces tecum to any financial institution,
as defined in section 5312(a) of title 31, United States Code,
to produce books, records and any other documents at any place
designated by the requesting party. All parties to the
proceeding shall be notified of the issuance of any such
subpoena. The procedures and limitations set forth in section
985 of this title shall apply to subpoenas issued under this
section.
* * * * * * *
CHAPTER 47--FRAUD AND FALSE STATEMENTS
* * * * * * *
Sec. 1015. Naturalization, citizenship or alien registry
(a) * * *
* * * * * * *
(d) Whoever knowingly makes any false cer-tificate,
acknowledgment or statement concerning the appearance before
him or the taking of an oath or affirmation or the signature,
attestation or execution by any person with respect to any
application, declaration, petition, affidavit, deposition,
certificate of naturalization, certificate of citizenship or
other paper or writing required or authorized by the laws
relating to immigration, naturalization, citizenship, or
registry of aliens[--]; or
(e) Whoever knowingly makes any false statement or claim that
he is, or at any time has been, a citizen or national of the
United States, with the intent to obtain on behalf of himself,
or any other person, any Federal benefit or service, or to
engage unlawfully in employment in the United States; or
(f) Whoever knowingly makes any false statement or claim that
he is a citizen of the United States in order to register to
vote or to vote in any Federal, State, or local election
(including an initiative, recall, or referendum)--
Shall be fined under this title or imprisoned not more than
five years, or both.
* * * * * * *
Sec. 1028. Fraud and related activity in connection with identification
documents
(a) * * *
(b) The punishment for an offense under subsection (a) of
this section is--
(1) except as provided in paragraphs (3) and (4), a
fine of under this title or imprisonment for not more
than [five] 15 years, or both, if the offense is--
(A) * * *
* * * * * * *
(2) except as provided in paragraphs (3) and (4), a
fine of under this title or imprisonment for not more
than three years, or both, if the offense is--
(A) any other production or transfer of an
identification document or false identification
document; or
(B) an offense under paragraph (3) of such
subsection; [and]
(3) a fine under this title or imprisonment for not
more than 20 years, or both, if the offense is
committed to facilitate a drug trafficking crime (as
defined in section 929(a)(2) of this title);
(4) a fine under this title or imprisonment for not
more than 25 years, or both, if the offense is
committed to facilitate an act of international
terrorism (as defined in section 2331(1) of this
title); and
[(3)] (5) a fine of under this title or imprisonment
for not more than one year, or both, in any other case.
* * * * * * *
CHAPTER 75--PASSPORTS AND VISAS
* * * * * * *
Sec. 1546. Fraud and misuse of visas, permits, and other documents
(a) * * *
* * * * * * *
Whoever knowingly makes under oath, or as permitted under
penalty of perjury under section 1746 of title 28, United
States Code, knowingly subscribes as true, any false statement
with respect to a material fact in any application, affidavit,
or other document required by the immigration laws or
regulations prescribed thereunder, or knowingly presents any
such application, affidavit, or other document [containing any
such false statement] which contains any such false statement
or which fails to contain any reasonable basis in law or fact--
Shall be fined under this title or imprisoned not more than
10 years, or both.
* * * * * * *
CHAPTER 96--RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS
* * * * * * *
Sec. 1961. Definitions
As used in this chapter--
(1) ``racketeering activity'' means (A) any act or
threat involving murder, kidnapping, gambling, arson,
robbery, bribery, extortion, dealing in obscene matter,
or dealing in a controlled substance or listed chemical
(as defined in section 102 of the Controlled Substances
Act), which is chargeable under State law and
punishable by imprisonment for more than one year; (B)
any act which is indictable under any of the following
provisions of title 18, United States Code: Section 201
(relating to bribery), section 224 (relating to sports
bribery), sections 471, 472, and 473 (relating to
counterfeiting), section 659 (relating to theft from
interstate shipment) if the act indictable under
section 659 is felonious, section 664 (relating to
embezzlement from pension and welfare funds), sections
891-894 (relating to extortionate credit transactions),
section 1028 (relating to fraud and related activity in
connection with identification documents), section 1029
(relating to fraud and related activity in connection
with access devices), section 1084 (relating to the
transmission of gambling information), section 1341
(relating to mail fraud), section 1343 (relating to
wire fraud), section 1344 (relating to financial
institution fraud), sections 1461-1465 (relating to
obscene matter), section 1503 (relating to obstruction
of justice), section 1510 (relating to obstruction of
criminal investigations), section 1511 (relating to the
obstruction of State or local law enforcement), section
1512 (relating to tampering with a witness, victim, or
an informant), section 1513 (relating to retaliating
against a witness, victim, or an informant), section
1542 (relating to false statement in application and
use of passport), section 1543 (relating to forgery or
false use of passport), section 1544 (relating to
misuse of passport), section 1546 (relating to fraud
and misuse of visas, permits, and other documents),
sections 1581-1588 (relating to peonage and slavery),
section 1951 (relating to interference with commerce,
robbery, or extortion), section 1952 (relating to
racketeering), section 1953 (relating to interstate
transportation of wagering paraphernalia), section 1954
(relating to unlawful welfare fund payments), section
1955 (relating to the prohibition of illegal gambling
businesses), section 1956 (relating to the laundering
of monetary instruments), section 1957 (relating to
engaging in monetary transactions in property derived
from specified unlawful activity), section 1958
(relating to use of interstate commerce facilities in
the commission of murder-for-hire), sections 2251-2252
(relating to sexual exploitation of children), sections
2312 and 2313 (relating to interstate transportation of
stolen motor vehicles), sections 2314 and 2315
(relating to interstate transportation of stolen
property), section 2321 (relating to trafficking in
certain motor vehicles or motor vehicle parts),
sections 2341-2346 (relating to trafficking in
contraband cigarettes), sections 2421-24 (relating to
white slave traffic), (C) any act which is indictable
under title 29, United States Code, section 186
(dealing with restrictions on payments and loans to
labor organizations) or section 501(c) (relating to
embezzlement from union funds), (D) any offense
involving fraud connected with a case under title 11
(except a case under section 157 of that title), fraud
in the sale of securities, or the felonious
manufacture, importation, receiving, concealment,
buying, selling, or otherwise dealing in a controlled
substance or listed chemical (as defined in section 102
of the Controlled Substances Act), punishable under any
law of the United States, [or] (E) any act which is
indictable under the Currency and Foreign Transactions
Reporting Act, or (F) any act which is indictable under
the Immigration and Nationality Act, section 274
(relating to bringing in and harboring certain aliens),
section 277 (relating to aiding or assisting certain
aliens to enter the United States), or section 278
(relating to importation of alien for immoral purpose).
* * * * * * *
CHAPTER 119--WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND
INTERCEPTION OF ORAL COMMUNICATIONS
* * * * * * *
Sec. 2516. Authorization for interception of wire, oral, or electronic
communications
(1) The Attorney General, Deputy Attorney General, Associate
Attorney General, or any Assistant Attorney General, any acting
Assistant Attorney General, or any Deputy Assistant Attorney
General or acting Deputy Assistant Attorney General in the
Criminal Division specially designated by the Attorney General,
may authorize an application to a Federal judge of competent
jurisdiction for, and such judge may grant in conformity with
section 2518 of this chapter an order authorizing or approving
the interception of wire or oral communications by the Federal
Bureau of Investigation, or a Federal agency having
responsibility for the investigation of the offense as to which
the application is made, when such interception may provide or
has provided evidence of--
(a) * * *
* * * * * * *
(n) any violation of section 5861 of the Internal
Revenue Code of 1986 (relating to firearms); [and]
(o)(1) a felony violation of section 1028 (relating
to production of false identification documentation),
section 1541 (relating to passport issuance without
authority), section 1542 (relating to false statements
in passport applications), section 1543 (relating to
forgery or false use of passport), section 1544
(relating to misuse of passport), section 1546
(relating to fraud or misuse of visas, permits, or
other documents) of this title; or
(2) a violation of section 274, 277, or 278 of the
Immigration and Nationality Act (relating to the
smuggling of aliens); or
[(o)] (p) any conspiracy to commit any offense
described in any subparagraph of this paragraph.
* * * * * * *
PART III--PRISONS AND PRISONERS
* * * * * * *
CHAPTER 306--TRANSFER TO OR FROM FOREIGN COUNTRIES
* * * * * * *
Sec. 4113. Status of alien offender transferred to a foreign country
(a) An alien who is deportable from the United States but who
has been granted voluntary departure pursuant to [section
1252(b) or section 1254(e) of title 8, United States Code,]
section 240B of the Immigration and Nationality Act and who is
transferred to a foreign country pursuant to this chapter shall
be deemed for all purposes to have voluntarily departed from
this country.
(b) An alien who is the subject of an order of [deportation]
removal from the United States pursuant to [section 1252 of
title 8, United States Code,] section 240 of the Immigration
and Nationality Act who is transferred to a foreign country
pursuant to this chapter shall be deemed for all purposes to
have been [deported] removed from this country.
(c) An alien who is the subject of an order of [exclusion and
deportation] removal from the United States pursuant to section
[1226 of title 8, United States Code] 240 of the Immigration
and Nationality Act, who is transferred to a foreign country
pursuant to this chapter shall be deemed for all purposes to
have been excluded from admission and [deported] removed from
the United States.
* * * * * * *
----------
IMMIGRATION AND NATIONALITY TECHNICAL CORRECTIONS ACT OF 1994
* * * * * * *
TITLE I--NATIONALITY AND NATURALIZATION
SEC. 101. EQUAL TREATMENT OF WOMEN IN CONFERRING CITIZENSHIP TO
CHILDREN BORN ABROAD.
(a) * * *
* * * * * * *
(d) [Application to Transmission of Citizenship.--This]
Applicability of Transmission Requirements.--This section, the
amendments made by this section, and any retroactive
application of such amendments shall not effect [any residency
or other retention requirements for] the application of any
provision of law relating to residence or physical presence in
the United States for purposes of transmitting United States
citizenship [as in effect before October 10, 1978, with respect
to the transmission of citizenship.] to any person whose claim
is based on the amendment made by subsection (a) or through
whom such a claim is derived.
SEC. 102. NATURALIZATION OF CHILDREN ON APPLICATION OF CITIZEN PARENT.
(a) * * *
* * * * * * *
(e) Transition.--In applying the amendment made by subsection
(a) to children born before November 14, 1986, any reference in
the matter inserted by such amendment to ``five years, at least
two of which'' is deemed a reference to ``10 years, at least 5
of which''.
* * * * * * *
TITLE II--TECHNICAL CORRECTIONS OF IMMIGRATION LAWS
* * * * * * *
SEC. 207. TECHNICAL AMENDMENT REGARDING ONE-HOUSE VETO.
Section 13(c) of the Act of September 11, 1957 (8 U.S.C.
1255b(c)) is amended--
(1) by striking the third sentence; and
(2) in the fourth sentence, by striking ``If neither
the Senate nor the House of Representatives passes such
a resolution within the time above specified, the'' and
inserting ``The''.
* * * * * * *
SEC. 209. FINES FOR UNLAWFUL BRINGING OF ALIENS INTO THE UNITED STATES.
(a) In General.--Section 273 of the Immigration and
Nationality Act (8 U.S.C. 1323) is amended--
(1) in subsections (b) and (d) by striking ``the sum
of [$3000] $3,000'' and inserting ``a fine of $3,000''
each place it appears;
* * * * * * *
(b) Effective Date.--The amendments made by this [subsection]
section shall apply with respect to aliens brought to the
United States more than 60 days after the date of enactment of
this Act.
* * * * * * *
SEC. 219. OTHER MISCELLANEOUS AND TECHNICAL CORRECTIONS TO IMMIGRATION-
RELATED PROVISIONS.
(a) * * *
* * * * * * *
(cc) Section 204(a)(1)(C) of the Immigration Reform and
Control Act of 1986 is amended by striking [``year 1993 the
first place it appears''] ``year 1993'' the first place it
appears and inserting ``years 1993''.
* * * * * * *
(ee)(1) * * *
* * * * * * *
(3) The amendments made by this subsection shall take effect
on the date of the enactment of this Act.
* * * * * * *
SEC. 221. VISAS FOR OFFICIALS OF TAIWAN.
Whenever the President of Taiwan or any other high-level
official of Taiwan shall apply to visit the United States for
the purposes of discussions with United States Federal or State
government officials concerning--
(1) trade or business with Taiwan that will reduce
the United States-Taiwan trade deficit[;],
(2) prevention of nuclear proliferation[;],
(3) threats to the national security of the United
States[;],
(4) the protection of the global environment[;],
(5) the protection of endangered species[;], or
(6) regional humanitarian disasters[.],
[The] the official shall be admitted to the United States,
unless the official is otherwise [excludable] inadmissible
under the immigration laws of the United States.
* * * * * * *
SEC. 225. CONSTRUCTION OF EXPEDITED DEPORTATION REQUIREMENTS.
No amendment made by this Act [and nothing in section 242(i)
of the Immigration and Nationality Act (8 U.S.C. 1252(i))]
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.
----------
IMMIGRATION ACT OF 1990
* * * * * * *
TITLE I--IMMIGRANTS
Subtitle A--Worldwide and Per Country Levels
* * * * * * *
SEC. 104. ASYLEE ADJUSTMENTS.
(a) * * *
* * * * * * *
(d) Adjustment of Certain Former Asylees.--
(1) In general.--Subject to paragraph (2), the
provisions of section 209(b) of the Immigration and
Nationality Act shall also apply to an alien--
(A) who was granted asylum before the date of
the enactment of this Act (regardless of
whether or not such asylum has been terminated
under section [208(b)] 208 of the Immigration
and Nationality Act),
* * * * * * *
Subtitle C--Commission and Information
SEC. 141. COMMISSION ON IMMIGRATION REFORM.
(a) * * *
* * * * * * *
(b) Functions of Commission.--The Commission shall--
(1) review and evaluate the impact of this Act and
the amendments made by this Act, in accordance with
subsection (c); [and]
(2) transmit to the Congress--
(A) not later than September 30, 1994, a
first report describing the progress made in
carrying out paragraph (1), and
(B) not later than September 30, 1997, a
final report setting forth the Commission's
findings and recommendations, including such
recommendations for additional changes that
should be made with respect to legal
immigration into the United States as the
Commission deems appropriate[.]; and
(3) transmit to Congress, not later than January 1,
1997, a report containing recommendations (consistent
with subsection (c)(3)) of methods of reducing or
eliminating the fraudulent use of birth certificates
for the purpose of obtaining other identity documents
that may be used in securing immigration, employment,
or other benefits.
(c) Considerations.--
(1) * * *
(2) Diversity program.--The Commission shall analyze
the information maintained under section 203(c)(3) of
the Immigration and Nationality Act and shall report to
Congress in its report under subsection (b)(2) on--
(A) the characteristics of individuals
admitted under section 203(c) of the
Immigration and Nationality Act, and
(B) how such characteristics compare to the
characteristics of family-sponsored immigrants
and employment-based immigrants.
The Commission shall include in the report an
assessment of the effect of the requirement of
paragraph (2) of section 203(c) of the Immigration and
Nationality Act on the diversity, educational, and
skill level of aliens admitted.
(3) For report on reducing birth certificate fraud.--
In the report described in subsection (b)(3), the
Commission shall consider and analyze the feasibility
of--
(A) establishing national standards for
counterfeit-resistant birth certificates, and
(B) limiting the issuance of official copies
of a birth certificate of an individual to
anyone other than the individual or others
acting on behalf of the individual.
* * * * * * *
Subtitle D--Miscellaneous
* * * * * * *
SEC. 154. PERMITTING EXTENSION OF PERIOD OF VALIDITY OF IMMIGRANT VISAS
FOR CERTAIN RESIDENTS OF HONG KONG.
(a) * * *
(b) Aliens Covered.--An alien is described in this
subsection if the alien--
(1)(A) * * *
(B)(i) is residing in Hong Kong as of the date of the
enactment of this Act and is issued an immigrant visa
under paragraph (1), (2), (4), or (5) of section 203(a)
of the Immigration and Nationality Act (as in effect on
the date of the enactment of this Act) or under section
203(a) or 203(b)(1) of such Act (as in effect on and
after October 1, [1991)] 1991, and before October 1,
1996) or under section 203(a), 203(b)(1), or 203(b)(2)
(as in effect on and after October 1, 1996), or (ii) is
the spouse or child (as defined in subsection (d)) of
an alien described in clause (i), if accompanying or
following to join the alien in coming to the United
States; or
* * * * * * *
Subtitle E--Effective Dates; Conforming Amendments
SEC. 161. EFFECTIVE DATES.
(a) * * *
(c) General Transitions.--
(1) * * *
* * * * * * *
(3) In the case of an alien who is described in
section 203(a)(8) of the Immigration and Nationality
Act (as in effect before October 1, 1991) as the spouse
or child of an alien admitted for permanent residence
as a preference immigrant under section 203(a)(3) or
203(a)(6) of such Act (as in effect before such date)
and who would be entitled to enter the United States
under such section 203(a)(8) but for the amendments
made by this title, such an alien shall be deemed to be
described in section 203(d) of such Act as the spouse
or child [an an] of an alien described in section
203(b)(2) or 203(b)(3)(A)(i), respectively, of such Act
with the same priority date as that of the principal
alien.
* * * * * * *
TITLE II--NONIMMIGRANTS
Subtitle A--General and Permanent Provisions
* * * * * * *
SEC. 204. TREATY TRADERS (E NONIMMIGRANTS).
(a) * * *
(b) Application of Treaty Trader for Certain Foreign
States.--Each of the following foreign states shall be
considered, for purposes of section 101(a)(15)(E) of the
Immigration and Nationality Act, to be a foreign state
described in such section if the foreign state extends
reciprocal nonimmigrant treatment to nationals of the United
States:
(1) The largest foreign state in each region (as
defined in section 203(c)(1) of the Immigration and
Nationality Act) which (A) has 1 or more dependent
areas (as determined for purposes of section 202 of
such Act) and (B) does not have a treaty of commerce
and navigation with the United States.
* * * * * * *
SEC. 206. INTRA-COMPANY TRANSFEREES (L NONIMMIGRANTS).
(a) Clarification of Treatment of Certain International
Accounting Firms.--In applying sections 101(a)(15)(L) and
[203(b)(1)(C)] 203(b)(2)(C) of the Immigration and Nationality
Act and section 124(a)(3)(A) of this Act, in the case of a
partnership that is organized in the United States to provide
accounting services and that markets its accounting services
under an internationally recognized name under an agreement
with a worldwide coordinating organization that is owned and
controlled by the member accounting firms, a partnership (or
similar organization) that is organized outside the United
States to provide accounting services shall be considered to be
an affiliate of the United States partnership if it markets its
accounting services under the same internationally recognized
name under the agreement with the worldwide coordinating
organization of which the United States partnership is also a
member.
* * * * * * *
TITLE III--FAMILY UNITY AND TEMPORARY PROTECTED STATUS
SEC. 301. FAMILY UNITY.
(a) Temporary Stay of [Deportation] Removal and Work
Authorization for Certain Eligible Immigrants.--The Attorney
General shall provide that in the case of an alien who is an
eligible immigrant (as defined in subsection (b)(1)) as of May
5, 1988 (in the case of a relationship to a legalized alien
described in subsection (b)(2)(B) or (b)(2)(C)) or as of
December 1, 1988 (in the case of a relationship to a legalized
alien described in subsection (b)(2)(A)), who has entered the
United States before such date, who resided in the United
States on such date, and who is not lawfully admitted for
permanent residence, the alien--
(1) may not be [deported] removed or otherwise
required to depart from the United States on a ground
specified in paragraph (1)(A), (1)(B), (1)(C), (3)(A),
of section 241(a) of the Immigration and Nationality
Act (other than so much of section 241(a)(1)(A) of such
Act as relates to a ground of [exclusion]
inadmissibility described in paragraph (2) or (3) of
section 212(a) of such Act), and
* * * * * * *
(e) Exception for Certain Aliens.--An alien is not eligible
for the benefits of this section if the Attorney General finds
that--
(1) the alien has been convicted of a felony or 3 or
more misdemeanors in the United States, or
(2) the alien is described in section [243(h)(2)]
208(b)(2)(A) of the Immigration and Nationality Act.
* * * * * * *
SEC. 303. SPECIAL TEMPORARY PROTECTED STATUS FOR SALVADORANS.
(a) * * *
* * * * * * *
(d) Enforcement of Requirement to Depart at Time of
Termination of Designation.--
(1) * * *
(2) Sanction for failure to appear.--If an alien is
provided an order to show cause under paragraph (1) and
fails to appear at such proceedings, except for
exceptional circumstances, the alien may be deported in
absentia under section [242B] 240(b)(5) of the
Immigration and Nationality Act (inserted by section
545(a) of this Act) and certain discretionary forms of
relief are no longer available to the alien pursuant to
such section.
* * * * * * *
TITLE V--ENFORCEMENT
* * * * * * *
Subtitle D--General Enforcement
* * * * * * *
SEC. 545. DEPORTATION PROCEDURES; REQUIRED NOTICE OF DEPORTATION
HEARING; LIMITATION ON DISCRETIONARY RELIEF.
(a) * * *
* * * * * * *
(g) Effective Dates.--
(1) Notice-related provisions.--
(A) * * *
(B) The Attorney General shall certify to the
Congress when the central address file system
(described in section [242B(a)(4)] 239(a)(4) of
the Immigration and Nationality Act) has been
established.
* * * * * * *
TITLE VI--EXCLUSION AND DEPORTATION
SEC. 601. REVISION OF GROUNDS FOR EXCLUSION.
(a) * * *
* * * * * * *
(c) Review of Exclusion Lists.--The Attorney General and
the Secretary of State shall develop protocols and guidelines
for updating lookout books and the automated visa lookout
system and similar mechanisms for the screening of aliens
applying for visas for admission, or for admission, to the
United States. Such protocols and guidelines shall be developed
in a manner that ensures that in the case of an alien--
(1) whose name is in such system, and
(2) who either (A) applies for [entry] admission
after the effective date of the amendments made by this
section, or (B) requests (in writing to a local
consular office after such date) a review, without
seeking admission, of the alien's continued
[excludability] inadmissibility under the Immigration
and Nationality Act,
if the alien is no longer [excludable] inadmissible because of
an amendment made by this section the alien's name shall be
removed from such books and system and the alien shall be
informed of such removal and if the alien continues to be
[excludable] inadmissible the alien shall be informed of such
determination.
* * * * * * *
----------
SECTION 128 OF THE FOREIGN RELATIONS AUTHORIZATION ACT, FISCAL YEARS
1992 AND 1993
SEC. 128. VISA LOOKOUT SYSTEMS.
(a) Visas.--The Secretary of State may not include in the
Automated Visa Lookout System, or in any other system or list
which maintains information about the [excludability]
inadmissibility of aliens under the Immigration and Nationality
Act, the name of any alien who is not [excludable] inadmissible
from the United States under the Immigration and Nationality
Act, subject to the provisions of this section.
(b) Correction of Lists.--Not later than 3 years after the
date of enactment of this Act, the Secretary of State shall--
(1) correct the Automated Visa Lookout System, or any
other system or list which maintains information about
the [excludability] inadmissibility of aliens under the
Immigration and Nationality Act, by deleting the name
of any alien not [excludable] inadmissible under the
Immigration and Nationality Act; and
(2) report to the Congress concerning the completion
of such correction process.
* * * * * * *
(e) Limitation.--
(1) The Secretary may add or retain in such system or
list the names of aliens who are not [excludable]
inadmissible only if they are included for otherwise
authorized law enforcement purposes or other lawful
purposes of the Department of State. A name included
for other lawful purposes under this paragraph shall
include a notation which clearly and distinctly
indicates that such person is not presently
[excludable] inadmissible. The Secretary of State shall
adopt procedures to ensure that visas are not denied to
such individuals for any reason not set forth in the
Immigration and Nationality Act.
* * * * * * *
----------
SECTION 1073 OF THE NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR
1995
SEC. 1073. SENSE OF CONGRESS CONCERNING VISAS FOR HIGH-LEVEL OFFICIALS
OF TAIWAN.
It is the sense of Congress that no visa should be denied for
a high-level official of Taiwan to enter the United States
unless the official is otherwise [excludable] inadmissible
under the immigration laws of the United States.
----------
SECTION 401 OF THE REFUGEE ACT OF 1980
Sec. 401. (a) * * *
* * * * * * *
(c) This section applies with respect to any alien in the
United States (1) who has applied before November 1, 1979, for
asylum in the United States, (2) who has not been granted
asylum, and (3) with respect to whom a final, nonappealable,
and legally enforceable order of [deportation or exclusion]
removal has not be entered.
* * * * * * *
----------
SECTION 501 OF THE REFUGEE EDUCATION ASSISTANCE ACT OF 1980
authorities for other programs and activities
Sec. 501. (a) * * *
* * * * * * *
(e) As used in this section, the term ``Cuban and Haitian
entrants'' means--
(1) any individual granted parole status as a Cuban/
Haitian Entrant (Status Pending) or granted any other
special status subsequently established under the
immigration laws for nationals of Cuba or Haiti,
regardless of the status of the individual at the time
assistance or services are provided; and
(2) any other national of Cuba or Haiti--
(A) who--
(i) was paroled into the United
States and has not acquired any other
status under the Immigration and
Nationality Act;
(ii) is the subject of [exclusion or
deportation] removal proceedings under
the Immigration and Nationality Act; or
(iii) has an application for asylum
pending with the Immigration and
Naturalization Service; and
(B) with respect to whom a final,
nonappealable, and legally enforceable order of
[deportation or exclusion] removal has not been
entered.
* * * * * * *
----------
VIOLENT CRIME CONTROL AND LAW ENFORCEMENT ACT OF 1994
* * * * * * *
TITLE II--PRISONS
* * * * * * *
Subtitle C--Alien Incarceration
SEC. 20301. INCARCERATION OF UNDOCUMENTED CRIMINAL ALIENS.
(a) * * *
* * * * * * *
(c) Termination of Limitation.--Notwithstanding section
[242(j)(5)] 241(h)(5) of the Immigration and Nationality Act,
as added by subsection (a), the requirements of section
[242(j)] 241(h) of the Immigration and Nationality Act, as
added by subsection (a), shall not be subject to the
availability of appropriations on and after October 1, 2004.
* * * * * * *
TITLE VI--DEATH PENALTY
* * * * * * *
SEC. 60024. ENHANCED PENALTIES FOR ALIEN SMUGGLING.
Section 274(a) of the Immigration and Nationality Act (8
U.S.C. 1324(a)) is amended--
(1) in paragraph (1)--
(A) * * *
* * * * * * *
(F) by striking ``shall be fined in
accordance with title 18, United States Code,
or imprisoned not more than five years, or
both, for each alien in respect to whom any
violation of this paragraph occurs'' and
inserting ``shall be punished as provided in
subparagraph (B)''; and
* * * * * * *
TITLE XIII--CRIMINAL ALIENS AND IMMIGRATION ENFORCEMENT
* * * * * * *
SEC. 130002. CRIMINAL ALIEN TRACKING CENTER.
[(a) Operation.--The Attorney General shall, under the
authority of section 242(a)(3)(A) of the Immigration and
Nationality Act (8 U.S.C. 1252(a)(3)(A)), operate a criminal
alien tracking center.]
(a) Operation and Purpose.--The Commissioner of Immigration
and Naturalization shall, under the authority of section 236(d)
of the Immigration and Nationality Act (8 U.S.C.
1252(a)(3)(A)), operate a criminal alien identification system.
The criminal alien identification system shall be used to
assist Federal, State, and local law enforcement agencies in
identifying and locating aliens who may be subject to removal
by reason of their conviction of aggravated felonies, subject
to prosecution under section 275 of such Act, not lawfully
present in the United States, or otherwise removable. Such
system shall include providing for recording of fingerprint
records of aliens who have been previously arrested and removed
into appropriate automated fingerprint identification systems.
* * * * * * *
SEC. 130003. ALIEN WITNESS COOPERATION AND COUNTERTERROR- ISM
INFORMATION.
(a) * * *
(b) Conditions of Entry.--
(1) * * *
* * * * * * *
(3) Prohibition of change of status.--Section 248(1)
of the Immigration and [Naturalization] Nationality Act
(8 U.S.C. 1258(1)) is amended by striking ``or (K)''
and inserting ``(K), or (S)''.
* * * * * * *
SEC. 130005. EXPEDITIOUS [DEPORTATION] REMOVAL FOR DENIED ASYLUM
APPLICANTS.
(a) In General.--The Attorney General may provide for the
expeditious adjudication of asylum claims and the expeditious
[deportation] removal of asylum applicants whose applications
have been finally denied, unless the applicant remains in an
otherwise valid nonimmigrant status.
* * * * * * *
SEC. 130007. EXPANDED SPECIAL DEPORTATION PROCEEDINGS.
(a) In General.--Subject to the availability of
appropriations, the Attorney General may expand the program
authorized by section [242A(d)] 238(a)(3) and [242(i)] 239(d)
of the Immigration and Nationality Act to ensure that such
aliens are immediately deportable upon their release from
incarceration.
* * * * * * *
----------
SECTION 7 OF CENTRAL INTELLIGENCE AGENCY ACT OF 1949
Sec. 7. Whenever the Director, the Attorney General and the
Commissioner of Immigration shall determine [that the entry]
that the admission of a particular alien into the United States
for permanent residence is in the interest of national security
or essential to the furtherance of the national intelligence
mission, such alien and his immediate family shall be [given
entry into] admitted to the United States for permanent
residence without regard to their inadmissibility under the
immigration or any other laws and regulations, or to the
failure to comply with such laws and regulations pertaining to
admissibility: Provided, That the number of aliens and members
of their immediate families [entering] admitted to the United
States under the authority of this section shall in no case
exceed one hundred persons in any one fiscal year.
----------
SECTION 4 OF THE ATOMIC WEAPONS AND SPECIAL NUCLEAR MATERIALS REWARDS
ACT
Sec. 4. If the information leading to award under section 3
is furnished by an alien, the Secretary of State, the Attorney
General, and the Director of Central Intelligence, acting
jointly, may determine that the [entry] admission of such alien
into the United States is in the public interest and, in that
event, such alien and the members of his immediate family may
receive immigrant visas and may be admitted to the United
States for permanent residence, notwithstanding the
requirements of the Immigration and Nationality Act.
----------
SECTION 8 OF THE FOREIGN AGENTS REGISTRATION ACT OF 1938
enforcement and penalties
Sec. 8. (a) * * *
* * * * * * *
(c) Any alien who shall be convicted of a violation of, or a
conspiracy to violate, any provisions of this Act or any
regulation thereunder shall be subject to [deportation in the
manner provided by sections 241, 242, and 243 of the
Immigration and Nationality Act.] removal pursuant to chapter 4
of title II of the Immigration and Nationality Act.
* * * * * * *
----------
SECTION 9 OF THE PEACE CORPS ACT
participation of foreign nationals
Sec. 9. In order to provide for assistance by foreign
nationals in the training of volunteers, and to permit
effective implementation of Peace Corps projects with due
regard for the desirability of cost-sharing arrangements, where
appropriate, the President may make provision for
transportation, housing, subsistence, or per diem in lieu
thereof, and health care or health and accident insurance for
foreign nationals engaged in activities authorized by this Act
while they are away from their homes, without regard to the
provisions of any other law: Provided, howevever, That per diem
in lieu of subsistence furnished to such persons shall not be
at rates higher than those prescribed by the Secretary of State
pursuant to section 12 of Public Law 84-885 (70 Stat. 890).
Such persons, and persons coming to the United States under
contract pursuant to section 10(a)(5), may be admitted to the
United States, if otherwise qualified, as nonimmigrants under
section 101(a)(15) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(15)) for such time and under such conditions as
may be prescribed by regulations promulgated by the Secretary
of State and the Attorney General. A person admitted under this
section who fails to maintain the status under which he was
admitted or who fails to depart from the United States at the
expiration of the time for which he was admitted, or who
engages in activities of a political nature detrimental to the
interests of the United States, or in activities not consistent
with the security of the United States, shall, upon the warrant
of the Attorney General, be taken into custody and promptly
[deported pursuant to sections 241, 242, and 243 of the
Immigration and Nationality Act. Deportation] removed pursuant
to chapter 4 of title II of the Immigration and Nationality Act
proceedings under this section shall be summary and the
findings of the Attorney General as to matters of fact shall be
conclusive.
----------
SECTION 6 OF THE ACT OF AUGUST 1, 1956
Sec. 6. (a) * * *
(b) Any alien convicted of a violation of this Act or any
regulation thereunder is subject to deportation in the manner
provided by [chapter 5, title II, of the Immigration and
Nationality Act (66 Stat. 163)] chapter 4 of title II of the
Immigration and Nationality Act.
* * * * * * *
----------
SECTION 2 OF THE VIRGIN ISLANDS NONIMMIGRANT ALIEN ADJUSTMENT ACT OF
1982
adjustment of immigration status
Sec. 2. (a) * * *
* * * * * * *
(c)(1) * * *
(2) The Secretary of State, in his discretion and after
consultation with the Secretary of the Interior and the
Governor of the Virgin Islands of the United States, may limit
the number of immigrant visas that may be issued in any fiscal
year to aliens with respect to whom second preference petitions
or first or third family preference petitions (filed by aliens
who have had their status so adjusted) are approved.
(3) Notwithstanding any other provision of law, no alien
shall be eligible to receive an immigrant visa (or to otherwise
acquire the status of an alien lawfully admitted to the United
States from permanent residence)--
(A) by virtue of a fourth or fifth preference
petition filed by an individual who had his status
adjusted under this section unless the individual
establishes to the satisfaction of the Attorney General
that exceptional and extremely unusual hardship exists
for permitting the alien to receive such visa (or
otherwise acquire such status); [or]
(B) by virtue of a second preference petition filed
by an individual who was admitted to the United States
as an immigrant by virtue of an immediate relative
petition filed by the son or daughter of the
individual, if that son or daughter had his or her
status adjusted under this section[.]; or
(C) by virtue of a first or third family preference
petition filed by an individual who was admitted to the
United States as an immigrant by virtue of a second
family preference petition filed by the son or daughter
of the individual, if that son or daughter had his or
her status adjusted under this section.
(4) For purposes of this subsection, the terms ``second
preference petition'', ``fourth preference petition'', ``fifth
preference petition'', and ``immediate relative petition''
mean, in the case of an alien, a petition filed under section
204(a) of the Act to grant preference status to the alien by
reason of the relationship described in section 203(a)(2),
203(a)(4), 203(a)(5), or 201(b), respectively, of the Act (as
in effect before October 1, 1991) or by reason of the
relationship described in section 203(a)(2), 203(a)(3), or
203(a)(4), or 201(b)(2)(A)(i), respectively, of such Act (as in
effect [on or after such date).] on or after such date and
before October 1, 1996). For purposes of this subsection, the
terms ``first family preference petition'', ``second family
preference petition'', and ``third family preference petition''
mean, in the case of an alien, a petition filed under section
204(a) of the Act to grant preference status to the alien by
reason of the relationship described in section 203(a)(1),
203(a)(2), or 203(a)(3), respectively (as in effect on and
after October 1, 1996).
* * * * * * *
----------
SECTION 2 OF THE CHINESE STUDENT PROTECTION ACT OF 1992
SEC. 2. ADJUSTMENT TO LAWFUL PERMANENT RESIDENT STATUS OF CERTAIN
NATIONALS OF THE PEOPLE'S REPUBLIC OF CHINA.
(a) * * *
* * * * * * *
(d) Offset in Per Country Numerical Level.--
(1) * * *
(2) Allotment if section 202(e) applies.--If section
202(e) of the Immigration and Nationality Act is
applied to the People's Republic of China in an
applicable fiscal year, in applying such section--
(A) 300 immigrant visa numbers shall be
deemed to have been previously issued to
natives of that foreign state under section
[203(b)(3)(A)(i)] 203(b)(4)(B) of such Act in
that year, and
(B) 700 immigrant visa numbers shall be
deemed to have been previously issued to
natives of that foreign state under section
203(b)(5) of such Act in that year.
* * * * * * *
----------
SECTION 1821 OF TITLE 28, UNITED STATES CODE
Sec. 1821. Per diem and mileage generally; subsistence
(a) * * *
* * * * * * *
(e) An alien who has been paroled into the United States for
prosecution, pursuant to section 212(d)(5) of the Immigration
and Nationality Act (8 U.S.C. 1182(d)(5)), or an alien who
either has admitted belonging to a class of aliens who are
deportable or has been determined pursuant to section [242(b)]
240 of such Act (8 U.S.C. 1252(b)) to be deportable, shall be
ineligible to receive the fees or allowances provided by this
section.
* * * * * * *
----------
IMMIGRATION REFORM AND CONTROL ACT OF 1986
TITLE II--LEGALIZATION
* * * * * * *
SEC. 202. CUBAN-HAITIAN ADJUSTMENT.
(a) Adjustment of Status.--The status of any alien
described in subsection (b) may be adjusted by the Attorney
General, in the Attorney General's discretion and under such
regulations as the Attorney General may prescribe, to that of
an alien lawfully admitted for permanent residence if--
(1) * * *
* * * * * * *
(3) the alien is not an alien described in section
243(h)(2) of such Act;
* * * * * * *
SEC. 204. STATE LEGALIZATION IMPACT-ASSISTANCE GRANTS.
(a) * * *
* * * * * * *
(c) Providing Assistance.--(1) Of the amounts allotted to a
State under this section, the State may only use such funds, in
accordance with this section--
(A) * * *
* * * * * * *
(D) to make payments for public education and
outreach (including the provision of information to
individual applicants) to inform temporary resident
aliens regarding--
(i) the requirements of sections 210[, 210A,]
and 245A of the Immigration and Nationality Act
regarding the adjustment of resident status,
* * * * * * *
(j) Definitions.--For purposes of this section:
(1) * * *
* * * * * * *
(4) The term ``eligible legalized alien'' means an
alien who has been granted lawful temporary resident
status under section 210[, 210A,] or 245A of the
Immigration and Nationality Act, but only until the end
of the five-year period beginning on the date the alien
was first granted such status, except that the five-
year limitation shall not apply for the purposes of
making payments from funds appropriated under the
fiscal year 1995 Labor, Health and Human Services, and
Education, and Related Agencies Appropriations Act for
providing public information and outreach activities
regarding naturalization and citizenship; and English
language and civics instruction to any adult eligible
legalized alien who has not met the requirements of
section 312 of the Immigration and Nationality Act for
purposes of becoming naturalized as a citizen of the
United States.
TITLE III--REFORM OF LEGAL IMMIGRATION
* * * * * * *
Part B--Other Changes in the Immigration Law
* * * * * * *
SEC. 315. MISCELLANEOUS PROVISIONS.
(a) * * *
* * * * * * *
(c) Sense of Congress Respecting Treatment of Cuban
Political Prisoners.--It is the sense of the Congress that the
Secretary of State should provide for the issuance of visas to
nationals of Cuba who are or were imprisoned in Cuba for
political activities without regard to section [243(g)] 243(d)
of the Immigration and Nationality Act (8 U.S.C. [1253(g)]
1253(d)).
* * * * * * *
TITLE IV--REPORTS TO CONGRESS
SEC. 401. TRIENNIAL COMPREHENSIVE REPORT ON IMMIGRATION.
(a) Triennial Report.--The President shall transmit to the
Congress, not later than January 1, 1989, and not later than
January 1 of every third year thereafter, a comprehensive
immigration-impact report.
(b) Details in Each Report.--Each report shall include--
(1) the number and classification of aliens admitted
(whether as [immediate relatives] spouses and children
of citizens, special immigrants, refugees, or under the
preferences classifications, or as nonimmigrants),
paroled, or granted asylum, during the relevant period;
* * * * * * *
----------
SECTION 702 OF THE DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE
JUDICIARY, AND RELATED AGENCIES APPROPRIATIONS ACT, 1988
Sec. 702. (a) * * *
(b) Processing of Immigrant Visa Applications of Cuban
Nationals in Third Countries.--Notwithstanding section 212(f)
and section [243(g)] 243(d) of the Immigration and Nationality
Act, on and after the date of the enactment of this Act,
consular officers of the Department of State shall process
immigrant visa applications by nationals of Cuba located in
third countries on the same basis as immigrant visa
applications by nationals of other countries.
* * * * * * *
----------
SECTION 903 OF THE FOREIGN RELATIONS AUTHORIZATION ACT, FISCAL YEARS
1988 AND 1989
SEC. 903. PROCESSING OF CUBAN NATIONALS FOR ADMISSION TO THE UNITED
STATES.
(a) * * *
(b) Processing of Immigrant Visa Applications of Cuban
Nationals in Third Countries.--Notwithstanding section 212(f)
and section [243(g)] 243(d) of the Immigration and Nationality
Act, on and after the date of the enactment of this Act,
consular officers of the Department of State shall process
immigrant visa applications by nationals of Cuba located in
third countries on the same basis as immigrant visa
applications by nationals of other countries.
* * * * * * *
----------
SECTION 6 OF THE FOOD STAMP ACT OF 1977
ELIGIBILITY DISQUALIFICATIONS
Sec. 6. (a) * * *
* * * * * * *
(f) No individual who is a member of a household otherwise
eligible to participate in the food stamp program under this
section shall be eligible to participate in the food stamp
program as a member of that or any other household unless he or
she is (1) a resident of the United States and (2) either (A) a
citizen or (B) an alien lawfully admitted for permanent
residence as an immigrant as defined by sections 101(a)(15) and
101(a)(20) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(15) and 8 U.S.C. 1101(a)(20)), excluding, among others,
alien visitors, tourists, diplomats, and students who enter the
United States temporarily with no intention of abandoning their
residence in a foreign country; or (C) an alien who entered the
United States prior to June 30, 1948, or such subsequent date
as is enacted by law, has continuously maintained his or her
residence in the United States since then, and is not
ineligible for citizenship, but who is deemed to be lawfully
admitted for permanent residence as a result of an exercise of
discretion by the Attorney General pursuant to section 249 of
the Immigration and Nationality Act (8 U.S.C. 1259); or (D) an
alien who has qualified for conditional entry pursuant to
sections 207 and 208 of the Immigration and Nationality Act (8
U.S.C. 1157 and 1158); or (E) an alien who is lawfully present
in the United States as a result of an exercise of discretion
by the Attorney General for emergent reasons or reasons deemed
strictly in the public interest pursuant to section 212(d)(5)
of the Immigration and Nationality Act (8 U.S.C. 1182(d)(5));
or (F) an alien within the United States as to whom the
Attorney General has withheld deportation pursuant to section
243 of the Immigration and Nationality Act (8 U.S.C. 1253(h)).
No aliens other than the ones specifically described in clauses
(B) through (F) of this subsection shall be eligible to
participate in the food stamp program as a member of any
household. The income (less a pro rata share) and financial
resources of the individual rendered ineligible to participate
in the food stamp program under this subsection shall be
considered in determining the eligibility and the value of the
allotment of the household of which such individual is a
member.
* * * * * * *
----------
SECTION 214 OF THE HOUSING AND COMMUNITY DEVELOPMENT ACT OF 1980
Sec. 214. (a) Notwithstanding any other provision of law,
the Secretary of Housing and Urban Development may not make
financial assistance available for the benefit of any alien
unless that alien is a resident of the United States and is--
(1) * * *
* * * * * * *
(5) an alien who is lawfully present in the United
States as a result of the Attorney General's
withholding deportation pursuant to section [243(h)]
241(b)(3) of the Immigration and Nationality Act (8
U.S.C. 1253(h)); or
* * * * * * *
----------
SECTION 304 OF THE MISCELLANEOUS AND TECHNICAL IMMIGRATION AND
NATURALIZATION AMENDMENTS OF 1991
SEC. 304. CORRECTIONS RELATING TO TITLE III OF THE IMMIGRATION ACT OF
1990.
(a) * * *
* * * * * * *
(c)(1) In the case of an alien described in paragraph (2)
whom the Attorney General authorizes to travel abroad
temporarily and who returns to the United States in accordance
with such authorization--
(A) the alien shall be inspected and admitted in the
same immigration status the alien had at the time of
departure if--
(i) in the case of an alien described in
paragraph (2)(A), the alien is found not to be
excludable on a ground of exclusion referred to
in section 301(a)(1) of the Immigration Act of
1990, or
(ii) in the case of an alien described in
paragraph (2)(B), the alien is found not to be
excludable on a ground of exclusion referred to
in section 244A(c)(2)(A)(iii) of the
Immigration and Nationality Act; and
(B) the alien shall not be considered, by reason of
such authorized departure, to have failed to maintain
continuous physical presence in the United States for
purposes of section [244(a)] 240A(a) of the Immigration
and Nationality Act if the absence meets the
requirements of section [244(b)(2)] 240A(b)(2) of such
Act.
* * * * * * *
----------
SOVIET SCIENTISTS IMMIGRATION ACT OF 1992
* * * * * * *
SEC. 3. WAIVER OF JOB OFFER REQUIREMENT.
The requirement in section [203(b)(2)(A) of the Immigration
and Nationality Act (8 U.S.C. 1153(b)(2)(A))] 203(b)(3)(B)(i)
of the Immigration and Nationality Act (8 U.S.C.
1153(b)(3)(B)(i)) that an alien's services in the sciences,
arts, or business be sought by an employer in the United States
shall not apply to any eligible independent states or Baltic
scientist who is applying for admission to the United States
for permanent residence in accordance with that section.
SEC. 4. CLASSIFICATION OF INDEPENDENT STATES SCIENTISTS AS HAVING
EXCEPTIONAL ABILITY.
(a) In General.--The Attorney General shall designate a class
of eligible independent states and Baltic scientists, based on
their level of expertise, as aliens who possess ``exceptional
ability in the sciences'', for purposes of section
[203(b)(2)(A) of the Immigration and Nationality Act (8 U.S.C.
1153(b)(2)(A))] 203(b)(3)(B)(i) of the Immigration and
Nationality Act (8 U.S.C. 1153(b)(3)(B)(i)), whether or not
such scientists possess advanced degrees.
(b) Regulations.--The Attorney General shall prescribe
regulations to carry out subsection (a).
(c) Limitation.--Not more than 750 eligible independent
states and Baltic scientists (excluding spouses and children if
accompanying or following to join) within the class designated
under subsection (a) may be allotted visas under section
[203(b)(2)(A) of the Immigration and Nationality Act (8 U.S.C.
1153(b)(2)(A))] 203(b)(3) of the Immigration and Nationality
Act (8 U.S.C. 1153(b)(2)).
* * * * * * *
----------
SECTION 9 OF THE IMMIGRATION AND NATIONALITY AMENDMENTS OF 1976
[Sec. 9. (a) The amendments made by this Act shall not
operate to affect the entitlement to immigrant status or the
order of consideration for issuance of an immigrant visa of an
alien entitled to a preference status, under section 203(a) of
the Immigration and Nationality Act, as in effect on the day
before the effective date of this Act, on the basis of a
petition filed with the Attorney General prior to such
effective date.
[(b) An alien chargeable to the numerical limitation
contained in section 21(e) of the Act of October 3, 1965 (79
Stat. 921), who established a priority date at a consular
office on the basis of entitlement to immigrant status under
statutory or regulatory provisions in existence on the day
before the effective date of this Act shall be deemed to be
entitled to immigrant status under section 203(a)(8) of the
Immigration and Nationality Act and shall be accorded the
priority date previously established by him. Nothing in this
section shall be construed to preclude the acquisition by such
an alien of a preference status under section 203(a) of the
Immigration and Nationality Act, as amended by section 4 of
this Act. Any petition filed by, or on behalf of, such an alien
to accord him a preference status under section 203(a) shall,
upon approval, be deemed to have been filed as of the priority
date previously established by such alien. The numerical
limitation to which such an alien shall be chargeable shall be
determined as provided in sections 201 and 202 of the
Immigration and Nationality Act, as amended by this Act.]
----------
SECTION 19 OF THE IMMIGRATION AND NATIONALITY AMENDMENTS OF 1981
[Sec. 19. The numerical limitations contained in sections 201
and 202 of the Immigration and Nationality Act shall not apply
to any alien who is present in the United States and who, on or
before June 1, 1978--
[(1) qualified as a nonpreference immigrant under
section 203(a)(8) of such Act (as in effect on June 1,
1978);
[(2) was determined to be exempt from the labor
certification requirement of section 212(a)(14) of such
Act because the alien had actually invested, before
such date, capital in an enterprise in the United
States of which the alien became a principal manager
and which employed a person or persons (other than the
spouse or children of the alien) who are citizens of
the United States or aliens lawfully admitted for
permanent residence; and
[(3) applied for adjustment of status to that of an
alien lawfully admitted for permanent residence.]
----------
INTERNAL REVENUE CODE OF 1984
Subtitle A--Income Taxes
* * * * * * *
CHAPTER 1--NORMAL TAXES AND SURTAXES
* * * * * * *
Subchapter A--Determination of Tax Liability
* * * * * * *
PART IV--CREDITS AGAINST TAX
* * * * * * *
Subpart B--Foreign Tax Credits, Etc.
* * * * * * *
SEC. 32. EARNED INCOME.
(a) * * *
* * * * * * *
(c) Definitions and Special Rules.--For purposes of this
section--
(1) Eligible individual.--
(A) * * *
* * * * * * *
(F) Identification number requirement.--The
term ``eligible individual'' does not include
any individual who does not include on the
return of tax for the taxable year--
(i) such individual's taxpayer
identification number, and
(ii) if the individual is married
(within the meaning of section 7703),
the taxpayer identification number of
such individual's spouse.
* * * * * * *
(k) Identification Numbers.--For purposes of subsections
(c)(1)(F) and (c)(3)(D), a taxpayer identification number means
a social security number issued to an individual by the Social
Security Administration (other than a social security number
issued pursuant to clause (II) (or that portion of clause (III)
that relates to clause (II)) of section 205(c)(2)(B)(i) of the
Social Security Act).
* * * * * * *
Subtitle F--Procedure and Administration
* * * * * * *
CHAPTER 63--ASSESSMENT
* * * * * * *
Subchapter B--Deficiency Procedures in the Case of Income, Estate,
Gift, and Certain Excise Taxes
* * * * * * *
SEC. 6213. RESTRICTIONS APPLICABLE TO DEFICIENCIES; PETITION TO TAX
COURT
(a) * * *
* * * * * * *
(g) Definitions.--For purposes of this section--
(1) * * *
(2) Mathematical or clerical error.--The term
``mathematical or clerical error'' means--
(A) * * *
* * * * * * *
(D) an omission of information which is
required to be supplied on the return to
substantiate an entry on the return, [and]
(E) an entry on a return of a deduction or
credit in an amount which exceeds a statutory
limit imposed by subtitle A or B, or chapter
41, 42, 43, or 44, if such limit is expressed--
(i) as a specified monetary amount,
or
(ii) as a percentage, ratio, or
fraction,
and if the items entering into the application
of such limit appear on such return[.], and
(F) an omission of a correct taxpayer
identification number required under section 23
(relating to credit for families with younger
children) or section 32 (relating to the earned
income tax credit) to be included on a return.
* * * * * * *
----------
THE DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY, AND
RELATED AGENCIES APPROPRIATION ACT, 1994
TITLE I--DEPARTMENT OF JUSTICE AND RELATED AGENCIES
* * * * * * *
DEPARTMENT OF JUSTICE
* * * * * * *
Immigration and Naturalization Service
salaries and expenses
For expenses, not otherwise provided for, necessary for the
administration and enforcement of the laws relating to
immigration, naturalization, and alien registration, including
not to exceed $50,000 to meet unforeseen emergencies of a
confidential character, to be expended under the direction of,
and to be accounted for solely under the certificate of, the
Attorney General; purchase for police-type use (not to exceed
597 of which 302 are for replacement only) without regard to
the general purchase price limitation for the current fiscal
year, and hire of passenger motor vehicles; acquisition, lease,
maintenance and operation of aircraft; and research related to
immigration enforcement; $1,048,538,000, of which not to exceed
$400,000 for research shall remain available until expended,
and of which not to exceed $10,000,000 shall be available for
costs associated with the Training program for basic officer
training: Provided, That none of the funds available to the
Immigration and Naturalization Service shall be available for
administrative expenses to pay any employee overtime pay in an
amount in excess of $25,000: Provided further, That uniforms
may be purchased without regard to the general purchase price
limitation for the current fiscal year: Provided further, That
not to exceed $5,000 shall be available for official reception
and representation expenses[: Provided further, That the Land
Border Fee Pilot Project scheduled to end September 30, 1993,
is extended to September 30, 1996 for projects on the northern
border of the United States only].
* * * * * * *
----------
SECTION 506 OF THE INTELLIGENCE AUTHORIZATION ACT, FISCAL YEAR 1990
requirements for citizenship for staff of united states army russian
institute
Sec. 506. (a) For purposes of section 319(c) of the
Immigration and Nationality Act (8 U.S.C. 1430(c)), the United
States Army Russian Institute, located in Garmisch, Federal
Republic of Germany, shall be considered to be an organization
described in clause (1) of [this section] such section.
* * * * * * *
----------
SECTION 140 OF THE FOREIGN RELATIONS AUTHORIZATION ACT, FISCAL YEARS
1994 AND 1995
SEC. 140. VISAS.
(a) * * *
* * * * * * *
(f) Not later than December 31, 1996, the Secretary of State
and the Director of the Federal Bureau of Investigation shall
jointly submit to the Committee on Foreign Affairs and the
Committee on the Judiciary of the House of Representatives, and
the Committee on Foreign Relations and the Committee on the
Judiciary of the Senate, a report on the effectiveness of the
procedures authorized in subsections (d) and (e).
[(g) This subsection shall] (g) Subsections (d) and (e) shall
cease to have effect after December 31, 1997.
ADDITIONAL VIEWS OF REP. ELTON GALLEGLY
One of the most critical challenges facing the 104th
Congress is the passage of comprehensive and effective
immigration reform legislation. For many years, the American
people have expressed frustration that its leaders in Congress
have failed to enact policies to eliminate the unacceptably
high levels of illegal migration to our country. Under the able
leadership of Representative Lamar Smith, Chairman of the House
Subcommittee on Immigration and Claims, the Judiciary Committee
has approved legislation, H.R. 2202, which finally addresses in
a serious manner the public's concern over this problem.
In an effort to find solutions to this on-going crisis,
Speaker Newt Gingrich earlier this year appointed me Chairman
of the Congressional Task Force on Immigration Reform, which
was comprised of fifty-four Members of Congress, both
Republicans and Democrats. We were asked to provide a report to
the Speaker and relevant congressional committees by June 30,
1995. In preparing its findings, the Task Force on Immigration
Reform reviewed existing laws; committee reports; testimony
before Committees of Congress; and various existing reports
prepared by a wide-range of organizations and individuals. To
enhance the expertise of the panel and obtain a first-hand view
of the problem, the Task Force conducted fact-finding missions
to San Diego, California; New York, New York; and Miami,
Florida.
The Task Force was organized into six working groups to
focus on the most crucial areas of immigration policy most in
need of reform. The groups were: Border Enforcement, Chaired by
Congressman Royce (R-CA); Workplace Enforcement, Chaired by
Congressman Deal (R-GA); Public Benefits, Chaired by
Congressman Goss (R-FL); Political Benefits, Chaired by
Congressman Goss (R-FL); Political Asylum, Chaired by
Congressman McCollum (R-FL); Deportation, Chaired by
Congressman Condit (D-CA); and Visa Overstays, Chaired by
Congressman Goodlatte (R-VA). These working groups met
individually and made specific recommendations to the entire
Task Force.
The Task Force has worked closely with Chairman Smith to
include over 80% of these recommendations in H.R. 2202--the
Immigration in the National Interest Act. Many measures were
incorporated in the original bill, while others have been
successfully added to the legislation through amendments.
At the time of introduction, H.R. 2202 included over
twenty-five Task Force recommendations. In the area of border
enforcement, these recommendations included the doubling of the
number of border patrol agents stationed at the border over a
five year period, increasing penalties for immigrant smuggling
and the construction of a triple-barrier fencing along the
U.S.-Mexico border.
H.R. 2202 also incorporated in its entirety H.R. 1765, a
bill which I introduced earlier this year that targets long-
term illegal immigration. This legislation prohibits anyone who
has been in this country illegally for more than one year from
receiving a visa for a ten-year period. This will serve as a
strong encouragement for illegal immigrants--both persons who
overstayed their visa and those who crossed the border
illegally--to return to their native countries and re-enter
through legal channels.
During markup of the bill in the Immigration and Claims
Subcommittee, I offered four amendments, including three en
bloc amendments which were accepted. The first amendment
authorized full reimbursement to state and local governments
for the costs of providing emergency health care service to
illegal immigrants. Hospitals are required to verify with INS
that the patient is illegally in the U.S. as a condition for
such reimbursement.
A major focus of the three en bloc amendments involved
bolstering enforcement efforts targeted at criminal aliens.
They provided for improving the identification of criminal
aliens by state and local authorities; mandatory detention of
all illegal aliens caught re-entering the United States on
three occasions; increasing penalties for immigrant smuggling;
increasing funds for investigators and border patrol located in
the interior; increasing criminal penalties for possessing,
producing or transferring fraudulent documents; and increasing
the amount reimbursable for states and local governments for
the costs of incarcerating criminal aliens. Another important
measure dealing with criminal aliens authorizes the President
to enter into negotiations with foreign countries for the
purpose of reaching agreement on the transfer of alien
prisoners.
Furthermore, the en bloc amendments authorized a major
expansion in the number of asylum officers and more than
doubled the number of detention spaces available to the
Immigration and Naturalization Service. This latter provision
will allow the INS to house illegal entrants determined to be
high-flight risk or pose a danger to the community.
As H.R. 2202 was considered by the full Judiciary
Committee, I offered nine additional amendments, all of which
were accepted. Two amendments strengthened measures against
criminal aliens, including one providing that upon the request
of a state governor, the INS will assist state courts in the
identification of illegal aliens pending criminal prosecution.
Several other measures specifically targeted illegal aliens
who attempt to receive government benefits. One important
amendment requires the Department of Education to verify the
immigration status of persons who apply for higher education
benefits. This provision was promoted by an Education
Department report which found that ineligible aliens are
awarded over $70 million in Pell Grants and $45 million in
Stafford Loans each year. Another measure ensures that state
officials are able to communicate with the Immigration and
Naturalization Service for the purpose of verifying the
immigration status of aliens who are applying for public
benefits. This measure also ensures that state government
entities can report to the INS when an alien is illegally
attempting to access taxpayer financed programs.
Finally, in an effort to protect American jobs and
discourage illegal immigration, I introduced an amendment to
close a major loophole in the existing immigration law. Under
existing law, an alien who applies for permanent residency
based on a job offer must demonstrate to INS and the Department
of Labor that, depending on the visa category, they possess at
least a specific level of work experience. However, illegal
work is currently allowed to be counted as valid experience for
this purpose. This encourages persons to come to the U.S., work
illegally and then apply for a green card based on that illegal
work experience. My amendment, which was adopted by the
Judiciary Committee, would prohibit aliens from using this
illegal work as evidence that he or she possesses sufficient
experience and skills to obtain a green card.
The bill reported by the Judiciary Committee represents a
watershed in our attempt to once and for all address the
perplexing issues of illegal immigration. We have a good
product. However, several additional provisions need to be
added to the H.R. 2202 when it comes to the House floor. At
this time, there are several possible amendments under
consideration, including amendments to give states the option
of denying free public education benefits to illegal aliens and
close the loopholes in current law that allow many illegal
immigrants to improperly receive free public housing.
Above all else, this landmark legislation is firmly rooted
in the rule of law. As a society, we simply cannot allow
anyone, regardless of motivation, to illegally cross our
borders or overstay their legal welcome in this country with
impunity. If enacted, this legislation will represent a major
step in restoring the confidence of our people in the ability
of the federal government to respond effectively to this
crisis.
Elton Gallegly.
ADDITIONAL VIEWS
We want to explain the reasons for two amendments, adopted
by voice vote in the Judiciary Committee markup. One kept the
TWOV fine at the current level. The second defined
``stowaway.''
The effect of the first amendment was to keep the civil
penalty assessed against airlines for bringing inadmissible
aliens from contiguous countries, those commonly referred to as
aliens ``traveling without visa'' (TWOVs), at its current level
of $3,000. The original bill would have raised the fee to
$5,000.
This amendment, which received the strong bipartisan
support of our colleagues, was offered for several reasons. In
our view, this is not the time to raise the fine amount.
First, we believe the airlines have made significant
compliance efforts, especially considering that the number of
passengers has risen at the same time as the amount collected
in fines has dropped. The airlines paid $21.4 million in fines
in fiscal year 1992, $18.3 million in fiscal year 1993, and
$13.4 million in fiscal year 1994. The airlines also invest
much effort each year in training their staffs in proper
documentation screening.
Second, the Immigration and Naturalization Service has not
yet acted on the direction of Congress in 1994 to establish a
fine mitigation program. We are concerned that this program, as
required under Section 273(e) of the Immigration and
Nationality Act, has yet to be established. Therefore, we urge
the INS to propose as soon as possible a rule establishing a
fine mitigation program, pursuant to Congressional intent in
Public Law 103-416.
Finally, it should be remembered that the airlines already
pay for the detention of TWOV passengers through a 1986
agreement, a $6 per ticket user fee. The user fee, which goes
to the INS, generated $288 million in fiscal year 1994 alone,
including a surplus of nearly $40 million. Yet the INS
maintains a policy that forces U.S. air carriers to assume
custody and financial responsibility for improperly documented
passengers, contrary to the 1986 accord.
This current policy continues to be contrary to
Congressional intent as expressed in H.R. Rept. No. 197, 99th
Congress, 1st Sess. 38 (1985) and H.R. Rept. No. 669, 99th
Congress, 2nd Sess 35 (1986), and reconfirmed in Linea Area
Nacional de Chile v. Meissner, No. 94-6288 (2d Cir., Sept. 11
1995). We believe such passengers should be detained at Federal
detention centers by trained law enforcement officers, rather
than at accommodations paid for by private transportation
lines. The INS should therefore assume custodial responsibility
for all such improperly documented aliens, and should pay for
these detention costs from the Immigration User Fee Account.
Funds in this account are intended to cover expenses incurred
in the provision of various INS services, including the
detention costs of excludable aliens.
The second amendment defines ``stowaway'' as someone who
boards a vessel without consent through concealment. This
definition comports with the ``stowaway'' definition in 18
U.S.C. 2199. Further, the definition excludes someone who
boards an aircraft or other vessel with a ticket. In plain
language, someone boarding with a ticket does not stow himself
away seeking to obtain transportation without official consent.
Thus, it would do violence to plain English language to call
someone a ``stowaway'' who boards a vessel in plain view and by
normal means.
In defining the term ``stowaway,'' the language in the bill
as amended is intended to include those who use normal boarding
procedures. We are aware of the trend in the airline industry
toward so-called ``ticketless'' travel. We intend that the term
``ticket'' as used in this section of the bill would apply as
well to those passengers boarding with a boarding pass or other
indication, including electronic entries, of proper boarding
authorization in a developing ``ticketless'' environment.
Sincerely,
Ed Bryant.
Howard Coble.
Fred Heineman.
Steven Schiff.
Martin R. Hoke.
Bob Barr.
Melvin L. Watt.
Steve Chabot.
Sonny Bono.
ADDITIONAL VIEWS OF CONGRESSMAN REED
I voted for H.R. 2202, but did so with certain
reservations. I believe the United States must take action to
address the problem of widespread illegal immigration, and H.R.
2202 takes many important and necessary steps in this regard.
However, I have serious concerns about the provisions on
legal immigration, and believe the House should address these
very different issues in separate legislation. The issue of
legal immigration should not be considered in the context of
the emotionally charged debate on illegal immigration.
Addressing illegal immigration involves criminal laws, border
enforcement, deportation issues, and workplace enforcement. The
policy decisions to be made regarding legal immigration are
completely different.
I support reasonable restrictions on legal immigration: The
United States has the right and responsibility to ensure that
only those who are likely to become productive citizens may
immigrate to our shores. However, this bill goes too far. For
example, it arbitrarily denies millions of U.S. citizens who
have played by the rules and waited in line, in many cases for
as long as a decade after having paid fees and gotten
applications approved, the opportunity to sponsor and reunite
with an overseas family member. The bill also adopts a new
definition of ``family member'' for immigration purposes which
excludes brothers and sisters as well as most children over age
21. Most Americans do not believe that any of their children,
regardless of how old they are, are distant family members.
These are but a few of the most troubling legal immigration
provisions.
I am also opposed to the cap on refugee admissions, and
voted to lift the cap, and reform the consultation process.
Unfortunately, this amendment by Representative Schiff narrowly
failed on a 16 to 15 vote, with several Members absent. It is
my hope that this statutory cap will be eliminated when H.R.
2202 is considered on the House floor. The admission of
refugees to the United States is intimately connected to our
foreign policy concerns. We must be able to adjust to swiftly
changing international conditions. Legislating a cap on refugee
admissions would send the wrong message to nations that share
the responsibility for the world's refugees and needlessly
jeopardize the international system of protection and
resettlement of those fleeing persecution, torture, and other
life-threatening situations.
The current system of consultation between the
Administration and Congress requires an annual analysis of
worldwide conditions and provides for emergency situations. It
is a responsible and flexible system that includes
Congressional participation in setting annual admissions and
determining our response to emerging international crises.
Finally, I would like to commend Subcommittee Chairman
Lamar Smith and Ranking Member John Bryant for their
willingness to address these issues. I received assurances from
Mr. Smith that the House would have the opportunity to address
the concerns that I have outlined above when the bill is
considered on the floor. I look forward to working with him to
make further improvements to this legislation.
Jack Reed.
ADDITIONAL VIEWS CONCERNING EMPLOYMENT VERIFICATION SYSTEM
Amazingly, at a time when many argue that Government is too
intrusive and bureaucratic and spends too much, Title IV of
H.R. 2202 proposes a computerized national employment registry
under the guise of immigration reform. This ``employment
verification system'' represents a perilous threat to our
Constitutional rights. By forcing the government to maintain a
file on every single individual within a covered state and to
approve every single hiring decision within that state, H.R.
2202 will truly usher in the era of a ``Big Brother,'' all-
intrusive federal bureaucracy. Even more ominously, since the
telephone verification system will inevitably be subject to
government errors and discrepancies, it may will be a mere
prelude to a full-fledged national ID card, complete with
voice, retina and fingerprint identifiers.\1\
\1\ This is in addition to provision in Title I providing for a
``biometric identifier'' (e.g., finger or hand print for aliens
frequently crossing the Mexican border).
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Although styled a ``pilot program,'' the registry would
take place in the five states with the largest illegal alien
population (i.e., California, Texas, New York, Florida, and
Illinois) \2\ and cover 92.8 million people.\3\ Businesses in
these States would understandably desire to see Congress
quickly impose the verification system on the rest of the
country, less they be placed at an unfair economic
disadvantage.
\2\ U.S. Commission on Immigration Reform, U.S. Immigration Policy:
Restoring Credibility, September 1994 at 64 [hereinafter Commission
Report].
\3\ Cato Institute, Statistical Abstract of the United States.
(1993 figures).
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Under the pilot project, no individuals in these States
will be hired without the express approval of the Federal
Government. H.R. 2202 requires that all employers in these
states--from General Motors to households with domestic help--
report new employees to the Federal Government by a telephone
1-800 number or through computer E-mail within three days. The
Federal Government would then check the employee's name and
social security number through its database. If the Government
does not verify that the person is authorized to work, the
worker would have 10 days to try to verify his or her
eligibility and two weeks in which to appeal the decision
pursuant to the Federal Tort Claims Act. These procedures would
apply any time anyone begins a new job, and burdens business
with an additional layer on top of the current I-9 document
verification requirements.
The employee verification system will not be foolproof.
During hearings on the bill it was conceded that the SSA and
INS computers do not even have the capacity to read each
other's data.\4\ A recent study by the INS found a 28 percent
error rate in the Social Security Administration (SSA)
database.\5\ This verification requirement therefore creates
huge possibilities for flawed information being disseminated to
employers which will deny American citizens and lawful
permanent residents the opportunity to work. Even if the error
rate could be substantially reduced, it will still translate
into millions of postponed or lost job opportunities.
\4\ See Transcript of Oversight Hearing on Work Site Enforcement of
Employer Sanctions, Friday, March 3, 1995, U.S. House of
Representatives, Subcommittee on Immigration and Claims, Committee on
the Judiciary.
\5\ Telephone Verification System (TVS) Pilot, Report on the
Demonstration Pilot-Phase I (1993) (9 company test) [hereinafter TVS
Pilot Report].
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The ``verification system'' is no answer to the problem of
discrimination. In order to avoid the disruptions resulting
from government errors and discrepancies, employers would most
likely continue to avoid including individuals whose
appearance, name, accent or family background make their
profile appear ``foreign.'' Moreover, as amended, H.R. 2202
would require that a person alleging discrimination under the
existing employer sanctions provision show that the employer
intended to discriminate, a burden of proof that is extremely
difficult to satisfy.
And the tester program included in the bill \6\ will not
redeem a bad program. We doubt the Republican Majority will be
clamoring to appropriate funds for testers in the present
budget environment. Even if they did, the program would be able
to effect only a small fraction of the nation's employers.
\6\ This requires the Attorney General implement a ``tester''
program which includes individuals posing as genuine applicants, in
order to monitor and ensure that the verification system is being
applied fairly.
---------------------------------------------------------------------------
The verification system proposed in this bill will also
dangerously increase the Federal Government's ability to
monitor individuals. Although the legislation purports to limit
the use of the information maintained in these new files to
``employment verification'' purposes only, the system is bound
to be subject to unauthorized disclosures and leaks. Just as
supposedly sacrosanct census data were used to identify
Japanese-Americans for internment during World War II, the
massive new data base necessitated by the Republican
immigration bill will prove a tempting target for future
legislation intent on cracking down on tax cheaters,
``deadbeat'' dads, or unpopular dissident groups.
The U.S. Commission on Immigration Reform estimates the
cost of design and development of the combined SSA/INS database
at $4 million over a two year period. \7\ The Commission
further estimates the annual cost of maintaining and operating
the verification system at $32 million. \8\ Whatever the cost,
we believe that the verification system is a poor allocation of
scarce resources. And the costs to the private sector will be
many, many times greater, as employers will be forced to incur
major operational and administrative costs in order to verify
new employees. \9\ Worst of all, inevitable system errors will
result in economic injustice to those individuals whose right
to work will be lost to computer error.
\7\ Commission Report, supra note 2 at 70.
\8\ The report also states that correcting errors in the database
will require the largest financial output. Discrepancies referred to
the Social Security Administration will cost approximately $122 million
initially with an annual cost of $30 million. Commission Report, supra
note 2 at 64.
\9\ The INS pilot project indicated compliance costs of $5,000 for
each company, but actual compliance costs would be several times that,
since the pilot project only checked prospective employees who
identified themselves as immigrants, not every individual offered a
job. See TVS Pilot Report, supra note 5.
---------------------------------------------------------------------------
Certainly illegal immigration is a problem. But to adopt a
system that punishes honest employers and lawful residents and
citizens in order to deter others from breaking the law is to
lose all sense of perspective. We urge the Members to oppose
the employment verification provisions of H.R. 2202.
John Conyers, Jr.
Pat Schroeder.
Zoe Lofgren.
Jerrold Nadler.
Sheila Jackson-Lee.
Melvin L. Watt.
Jose E. Serrano.
Xavier Becerra.
ADDITIONAL VIEWS CONCERNING INVESTORS PREFERENCE PROGRAMS
On whichever side of the immigration debate one falls, we
should all be able to agree that maintaining the Investor's
Preference Program is unconscionable in a bill otherwise
reducing the number of legal immigrants in most categories.
Yet, H.R. 2202 reserves 10,000 spots for anyone who happens to
be wealthy enough to spend $1 million to start a business in
the U.S. (or $500,000 under a special pilot program), even
though only 400 immigrants were admitted through this program
last year.
Simply being wealthy should not entitle immigrants to a
place in line for themselves and their families. By maintaining
this program, we are sending the message that wealth for the
sake of wealth is a virtue, regardless of the individual's
ability or character.
Proponents of the Investor's Preference Program argue there
is nothing inappropriate about an immigration policy that gives
a priority to those who can contribute to this country's
financial wellbeing. We agree. We believe that typical legal
immigrants, with their entrepreneurial spirits and work ethic,
make such contributions. Few come here with a million dollars
in their pockets, yet many become successful entrepreneurs.
Some are millionaires today. This is what America is about--
opportunity, not birthright.
Not surprisingly, wealthy foreigners have discovered ways
to exploit the Investor's Preference Program to their
advantage. In fact, an entire cottage industry has emerged
where ``investment advisors'' take the money, invest it in what
they advertise as ``INS approved'' businesses and then
guarantee residence status AND a return of the investment.
Suffice it to say there is no due diligence required to
confirm that the invested funds come from legitimate sources.
Thus, deposed dictators could raid their countries' treasuries
and then find themselves at the front of our immigration line.
Drug cartel kingpins escaping prosecution in their home
countries could do the same.
It is worth noting that there is nothing in our current
immigration policy to prevent a foreign national from starting
a business here or investing in an existing American venture.
The fact that America is one of the strongest consumer markets
in the world provides ample incentive for foreign investment
here.
We do not need to bribe foreign investors with an offer of
permanent residence status, particularly since such status is
the first step to American citizenship. American citizenship
simply is not a commodity for sale. Not for a million dollars.
And not at any other price.
For these reasons, we dissent from the investor preference
provisions in H.R. 2202.
John Conyers, Jr.
John Bryant.
Bobby Scott.
Melvin L. Watt.
Jerrold Nadler.
Jose E. Serrano.
Xavier Becerra.
Barney Frank.
ADDITIONAL VIEWS CONCERNING H-1B TEMPORARY VISA PROGRAM
We oppose the provisions in Title VIII relating to the H-
1B, or ``temporary'' visa program for skilled workers. We agree
with other opponents that the H-1B program displaces American
workers, drives down wages in certain sectors, creates an
indentured class of foreign workers, and discourages Americans
from entering certain fields (most notably, science and
engineering).
As Secretary Reich has said:
We have seen numerous instances in which American
businesses have brought in foreign skilled workers after having
laid off skilled American workers, simply because they can get
the foreign workers more cheaply. The program has become a
major means of circumventing the costs of paying skilled
American workers or the costs of training them.\1\
\1\ Washington Post, October 21, 1995.
Among other criticisms of the current H-1B program is that it does
not require any labor market test for availability of qualified
American workers before seeking H-1B workers, and there is no
prohibition against laying off American workers and replacing them with
H-1B foreign workers. Businesses have sprung up for the sole function
of bringing in H-1B foreign workers and shopping them around to other
businesses for a fee. Certain companies (see e.g., AIG (American
International Group), Washington Post, October 21, 1995; Sealand Inc.,
a division of CSX Corp., Wall Street Journal, October 9, 1995) have
laid off entire departments to utilize these H-1B job contractors.
---------------------------------------------------------------------------
Moreover, H.R. 2202 would require that only ``depending''
H-1B employers abide by all Department of Labor H-1B program
regulations.\2\ Other employers will not be required to obtain
a ``joint attestation'' from clients stating that they have not
and will not lay off any U.S. worker doing the same job as the
contract H-1B employee or that they will pay the H-1B employee
100% of the mean of the laid-off worker's wage. They will not
be required to post notices informing U.S. workers of the
employment of H-1B foreign workers when they move them to new
job sites.\3\ They will not be required to file a new Labor
Condition Application when an H-1B employee is moved to work or
temporarily travels to work in a city not listed on the
original application, unless the principal place of employment
changes. They will not be required to pay per diem when
temporarily sending H-1B foreign workers to other job sites.
And, they will not be subject to Department of Labor compliance
investigations unless someone files a complaint with the
Department against them--i.e., the Department cannot initiate
such investigations.
\2\ Section 806(b) of the bill defines a dependent H-1B employer as
one with less than 21 employees, four or more of whom are H-1B
nonimmigrant foreign workers; employers with at least 21 but not more
than 150 employees, 20% of whom are H-1B nonimmigrant foreign workers;
and, employers with at least 151 employees, 15% of whom are H-1B
nonimmigrant foreign workers. However, dependent employers who file
plans with the Department of Labor to reduce their dependency over time
are treated the same as non-dependent employers.
\3\ Central to the proper working of the entire H-1B system is the
provision of notice to U.S. workers that the employer is bringing H-1B
foreign workers to the job site. If an American worker is unaware of
the occurrence or the terms and conditions, or subsequently finds the
employer is not fulfilling the H-1B visa requirements--i.e., paying the
H-1B foreign worker the prevailing wage--then the American worker would
know a complaint can be filed with the Department of Labor. Without the
notice requirement, the predominantly compliant-driven H-1B enforcement
system collapses.
---------------------------------------------------------------------------
At the same time, the Department of Labor is given only 45
days to accept or reject ``private source'' wage information.
We believe the combination of these changes will lead to grave
mischief and serious harm to American workers. It also would
result in shifting some compliance burdens from the employers
who benefit from the H-1B program to the government (i.e., the
taxpayers).
Although we understand required that foreign workers be
paid ``110% of the mean'' laid-off worker's wages rule as one
meant to be an incentive against laying off U.S. workers, we
consider it a modest one at best, and--if history is any
guide--one subject to easy circumvention. In addition, why
should any employer--at any price--be permitted to lay off
American workers in order to hire foreign workers with
impunity?
Finally, it must not go unnoted that--at the same time
Congress is cutting the Department of Labor's appropriations--
this Committee is increasing the Department's workload under
the H-1B program and imposing serious time constraints in
accomplishing much of that additional work, but providing no
additional resources.
Instead we believe, as Secretary Reich has urged since
1993, the displacement of American workers through the use of
the H-1B program must be faced head on. To do this, the H-1B
program must be returned to its original purpose--to provide
temporary assistance to domestic businesses to fill short-term
unique, high-skilled needs. There must be a flat prohibition
against laying off American workers and replacing them with H-
1B foreign workers. U.S. employers must be required to take
timely, specific steps to recruit and retain American workers
to wean themselves from the use of H-1B foreign workers. The
length of time for an H-1B ``temporary'' visa must be reduced--
from the current 6 year maximum to a maximum of three years.
Further, the existing Department of Labor regulations on the H-
1B program are salutary to the operation of the program and
must be maintained for all employers of H-1B foreign workers.
John Conyers, Jr.
Jerrold Nadler.
Howard L. Berman.
Bobby Scott.
John Bryant.
Sheila Jackson-Lee.
Melvin L. Watt.
Jose E. Serrano.
Xavier Becerra.
DISSENTING VIEWS
Although, we support legislation which would more
effectively prevent illegal immigration, we strongly oppose the
bill's historically shortsighted and dramatic reductions and
attacks against legal immigrants, refugees, and asylum seekers.
The lawful and orderly admission of close family relatives of
U.S. citizens--their children, spouses, parents, brothers and
sisters--strengthens American families, upholds family values,
and benefits the Nation as a whole. If enacted, H.R. 2202 would
create myriad hardships and inequities for millions of U.S.
citizens who would be prohibited from reuniting with close
family members. Moreover, according to the State Department, an
estimated 2.5 million U.S. citizens who have pending petitions
to secure visas for close relatives and have waited for years
for the visa to be issued would have their hopes of reuniting
their families arbitrarily destroyed by the bill. \1\
\1\ See infra note 70.
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H.R. 2202 also makes it virtually impossible for those
legitimately fleeing persecution to claim political asylum. In
addition, the bill imposes a cap that will result in a
reduction of admissions of refugees in fleeing persecution.
This will close America's doors to many Cubans fleeing Castro,
Bosnians uprooted by civil war, and Jews, Christians and other
religious or ethnic minorities seeking safe haven and
protection.
Some argue that dramatic cuts in legal immigration and
protection of refugees are supported by the American people.
Unlike this bill, however, voters draw a clear distinction
between illegal and legal immigration.\2\ More than eight out
of ten voters believe that Congress should settle the problem
of illegal immigration before worrying about reducing the
number of legal immigrants.\3\ In addition, by a margin of
seven to one, voters reject measures which would unfairly
penalize prospective legal immigrants who are following the
rules in their efforts to enter the United States.\4\
\2\ Research by Public Opinion Researcher Dr. Vincent J. Breglio on
the Public's View of U.S. Immigration Policy (February 27, 1996).
\3\ Id.
\4\ Id.
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The House should enact an immigration bill to address
legitimate issues and concerns regarding illegal immigration.
The House should reject the proposed dramatic reductions and
restrictions in legal immigration, refugee admissions and
access to political asylum which H.R. 2202 seeks to impose.
title i. deterrence of illegal immigration through improved border
enforcement, pilot programs, and interior enforcement
Triple tier fence endangers lives
Section 102, which would mandatorily institute a 14-mile
three-tier fence along the U.S.-Mexico border in San Diego,
constitutes a dangerous attempt to micromanage the Immigration
and Naturalization Service's (INS) authority. The INS already
uses fencing where the topography, support personnel, and
technology make it an effective component of its overall
deterrence strategy; this bill will require fencing where its
use would be ineffective and even dangerous to INS personnel.
Douglas Kruhm, Chief of Border Patrol has written that
installing triple-tier fencing along 14 miles of the San Diego
sector would:
[I]ncrease the danger to agents by enclosing them in areas
without easy escape routes . . . [O]ur experience tells us that
multiple fencing with intervening roads presents multiple
dangers for the physical safety of our agents [and] has shown
that when we travel in a single, predictable line, aliens will
attack vehicles and agents with rocks.\5\
\5\ Letter from Douglas Kruhm, Chief, Border Patrol Immigration and
Naturalization Service, U.S. Department of Justice, to Honorable Henry
Hyde, Chairman, Committee on the Judiciary, U.S. House of
Representatives (September 18, 1995).
Although section 102 authorizes appropriations of $12
million to build the fencing, the INS estimates that its cost,
including land purchase, construction, and maintenance, would
be between $85 and $115 million.\6\ At a time when the United
States economy is becoming increasingly integrated with the
economies of other countries, it seems particularly
inappropriate to erect more fences and walls between ourselves
and friends, neighbors and trading partners.
\6\ Letter from Jamie S. Gorelick, Deputy Attorney General, U.S.
Department of Justice, to Honorable Henry J. Hyde, Chairman, Committee
on the Judiciary, U.S. House of Representatives (September 15, 1995)
[hereinafter, House Judiciary Views Letter].
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title iii. inspection, apprehension, detention, adjudication, and
removal of inadmissible and deportable aliens
I. ``Streamlined'' Deportation Procedures Are Unnecessary and Unfair
Subtitle A restructures the exclusion and deportation
provisions of the immigration laws in a manner which strips the
process of essential due process safeguards. Although the
purported purpose for many of these changes is to
``streamline'' existing procedures and eliminate fraud in the
system, many of the new procedures will serve only to prevent
individuals from knowing about, or effectively asserting, their
rights under U.S. law. It would be far preferable to rely on
current law, under which increased staffing and enhanced INS
procedures have resulted in significant gains in expediting
decisions and reducing backlogs.\7\ Deportations of criminal
and illegal aliens in 1995 exceeded 51,600, a 15% increase over
the preceding year, and a 75% increase over 1990.\8\ The
simplified, new asylum procedures have reduced the incentives
for false claims and resulted in a drastic reduction in the
asylum case load (new cases dropped by 57%) and a doubling of
INS's productivity (completing 126,000 cases during 1995
compared with 61,000 in 1994).\9\
\7\ CFR Part 208 (1995). See also John M. Goshko, Revised Political
Asylum System Shows Promise in Early Stages, The Washington Post, July
9, 1995, at A16.
\8\ Immigration and Naturalization Service, INS Ends 1995 with New
Record in Alien Removals (December 28, 1995).
\9\ INS News Release, INS Successfully Reforms U.S. Asylum System,
January 4, 1996 [hereinafter INS News Release].
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The bill includes several harsh new bans on the ability of
aliens to seek lawful entry into this country. Sec. 301(c)(A)
of the bill lengthens the period for which an individual is
barred from the United States from one to five years in the
case of an alien who has been turned away upon his or her
arrival to the United States; and from five to ten years (20
years in the case of an aggravated felon) in the case of an
alien who is deported from the United States. Sec. 301(c)(B)
bans persons who have resided in the United States without
lawful documentation for a total of 12 months from reentry for
10 years. These inflexible provisions would cause great
hardship, not just to new immigrants, but to their American
families. As Mr. Bryant of Texas, a cosponsor of this
legislation, argued:
I think it is a mistake for us to put [the 10-year ban]
into the law because I think undoubtedly thousands of people
are going to accidentally be caught by this provision when we
pass this law and suddenly will be faced with not being able to
reenter the United States for 10 years . . . I think that
situation is going to result in a flood of individual cases
coming before this committee trying to get relief . . . and
every one of the cases, undoubtedly, every one of the cases,
are going to be heartrending and tear-jerking and probably
meritorious and we are going to turn this committee into a
virtual immigration court for the next several years. I just
don't think it will work.\10\
\10\ Judiciary Committee Markup Transcript on H.R. 2202, September
20, 1995 p. 134.
Although a few modest exceptions to this punitive provision
were added during Committee markup,\11\ the 10-year ban on
reentry will inevitably divide families that have been waiting
in line for immigrant visas for many years and inflict extreme
hardship on U.S. citizens and permanent residents who will be
forced to make the impossible choice of having their family
divided until a visa is available or leaving the U.S.
themselves to keep their families together. The Justice
Department has also asserted that enforcing the 10-year ban
``would generate needless and costly litigation.'' \12\
\11\ The Committee agreed to a number of limited exceptions,
including not counting toward 12 month unlawful documentation period
during which an alien is a minor, a bona fide asylum applicant, has
Family Unity protection, or has work authorization. Similarly an
amendment offered by Representative Berman authorizes the Attorney
General to provide a waiver for the 10-year reentry ban ``to assure
family unity, or when it is otherwise in the public interest'' for the
spouse, parent or child of either a U.S. citizen or permanent resident.
And an amendment added by Representative Lofgren provides that waivers
would be available for certain ``national security interests.''
\12\ House Judiciary Views Letter, supra note 6 at 17-18.
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Section 302, providing for the expedited removal of aliens,
will unfairly result in bona fide asylum seekers being expelled
to face persecution. Under this section, aliens could be
removed based merely on the unreviewed judgment of an
immigration officer and his or her supervisor. Such
``expedited'' removal may be ordered if the examining
immigration officer determines that an alien is inadmissible
under INA sections 212(a)(6)(C) (fraud or misrepresentation) or
212(a)(7) (lack of valid documents). The notion that fraudulent
documents, or the absence of appropriate documents, can be used
to trigger this procedure virtually guarantees that individuals
genuinely fleeing persecution and therefore least likely to
obtain appropriate documents from their persecutors will be
returned to the persecutors.
The new substantive standard for determining whether an
alien may be subjected to expedited exclusion is similarly
unworkable in the context of initial screening. Under proposed
section 235(B)(v) of the INA, in order to establish a credible
fear of persecution, the applicant for asylum would need to
establish that ``it is more probable than not that the
statements made by the alien in support of the alien's claim
are true, and * * * there is a significant possibility, in
light of such statements * * * that the alien could establish
eligibility for asylum.'' This is simply too onerous a standard
for an asylee to meet who has just escaped dangerous
persecution.
Current law and procedure strike a far more appropriate
balance between the need to screen out truly frivolous claims
and to afford applicants due process. Under current procedures,
a person who fears persecution may go before an immigration
judge to prove eligibility for asylum and can seek an
administrative appeal if the claim is rejected. The asylum
seeker may be represented at no cost to the government during
this process.\13\
\13\ 8 CFR 3.16(b) (1995).
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Section 304 of H.R. 2202 would eliminate the Attorney
General's discretionary section 212(c) or ``cancellation of
removal'' authority if a person is sentenced to five years, in
the aggregate, for one or more aggravated felony convictions.
This change would needlessly deprive the Attorney General of
the discretion to provide relief to an individual who, having
been convicted, did not serve a single day in prison.
II. Using Secret Evidence To Deport Aliens Poses a Threat to Due
Process
Section 321 of the bill would for the first time allow
aliens (including permanent residents) to be deported based on
classified evidence submitted on an ex parte basis. An alien
alleged to be involved in ``terrorism'' would not be permitted
to receive a summary of the evidence against him or her if the
5-judge panel finds that his or her presence or the preparation
of the summary would likely cause serious and irreparable harm
or injury. Although permanent residents are permitted to have a
member of a panel of specially approved attorneys review the
secret evidence, the bill does not permit the permanent
resident to select his or her own attorney--even from the pre-
approved panel--or confer with such counsel concerning the
secret evidence. Section 321 also provides for immediate
detention without bail and limited one-sided appellate rights
only for the government. Further, there is no requirement that
the government disclose any exculpatory evidence to the alien
or even to the special court.
This provision is a clear violation of the right to due
process as guaranteed by the Fifth and Fourteenth
Amendments.\14\ The cardinal rule of due process is that
evidence used against a party must be fully disclosed to that
party. The Supreme Court and lower courts have consistently
held that aliens who have entered the United States gain the
full protections of the Constitution's due process clause, and
cannot be deported on the basis of evidence not disclosed to
them.\15\ In the 1976 case of Matthews v. Diaz, the Court
wrote:
\14\ Provisions limiting an alien's right to select an attorney and
denying the attorney the ability to discuss the evidence with his or
her client also raise serious ethical and lawyer-client privilege
issues. It has also been noted that the section is inconsistent with
U.S. treaty obligations pertaining to due process protections and
freedom of association under the International Covenant on Civil and
Political Rights. See Letter from Lawyers Committee for Human Rights to
Subcomm. on Crime, Committee on the Judiciary, U.S. House of
Representatives (May 12, 1995).
\15\ See Kwong Hai Chew v. Colding, 344 U.S. 590 (1953) (INS could
not subject returning permanent resident alien to ``summary exclusion''
based on secret evidence); Rafeedie v. INS, 795 F. Supp. 13 (D.D.C.
1992) (INS attempt to expel a permanent resident alien on the basis of
undisclosed classified information held to be unconstitutional).
There are literally millions of aliens within the
jurisdiction of the United States. The Fifth Amendment as well
as the Fourteenth Amendment, protects every one of these
persons from deprivations of life, liberty, or property without
due process of law. Even one whose presence in this country is
unlawful, involuntary, or transitory is entitled to that
constitutional protection.\16\
\16\ Matthews v. Diaz, 426 U.S. 67, 77 (1976).
In American-Arab Anti-Discrimination Committee v. Reno,\17\
the Ninth Circuit recently reaffirmed this principle when it
found that ``[a]liens who reside in this country are entitled
to full due process protections'' and noted that ``the very
foundation of the adversary process assumes the use of
undisclosed information will violate due process. * * *'' \18\
The Court acknowledged that while ``not all of the rights of
criminal defendants are applicable in the civil context, the
procedural due process notice and hearing requirements have
`ancient roots' in the rights to confrontation and cross-
examination'' and should be fully provided for in deportation
proceedings.\19\
\17\ 70 F.3d 1045 (9th Cir. 1995).
\18\ Id. at 1067.
\19\ Id. at 1066.
Although we have previously allowed the use of secret evidence to
exclude aliens who have not yet entered this country, our experience
with such procedures highlights the dangers present in denying any
party due process. In the infamous case U.S. ex rel. Knauff v.
Shaughnessy, 338 U.S. 537 (1950), secret evidence was used to exclude
from the United States the German wife of a U.S. citizen who had fled
to England when Hitler came to power. In his dissenting opinion,
Justice Jackson argued, ``[t]he plea that evidence of guilt must be
secret is abhorrent to free men, because it provides a cloak for the
malevolent, the misinformed, the meddlesome, and the corrupt to play
the role of informer undetected and uncorrected.'' In a subsequent
hearing necessitated by public outrage over the denial of Mrs. Knauff's
visa it was learned that the ``confidential source'' offering the
secret evidence was a jilted lover. When the INS sought to use secret
evidence to expel an alien several years ago, the D.C. Circuit likened
the alien's position to that of ``Joseph K. in The Trial,'' finding
that ``[i]t is difficult to imagine how even someone innocent of all
wrongdoing could meet such a burden.'' Rafeedie v. INS, 880 F.2d 506,
516 (D.C. Cir. 1989).
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III. Excluding Individuals Based on Mere Membership in Designated
Organizations Threatens Freedom of Speech and Association
We also object to section 331 of the bill which specifies
that membership in any organization designated as ``terrorist''
constitutes grounds for deporting or excluding an alien from
the United States, regardless of whether or not the individual
has engaged in or supported any unlawful acts.\20\ This
provision would resurrect the infamous McCarran-Walter Act,\21\
which was repealed by Congress in 1990 after it was held to be
unconstitutional as applied to several aliens.\22\
\20\ Under current law, a person who has engaged in terrorism, or
about whom a consular officer or the Attorney General has a reasonable
ground to believe is likely to engage in any terrorism, is already
excludable from the United States. See 8 U.S.C. Sec. 1182(a)(3)(B)(i).
\21\ The McCarran-Walter Act allowed, among other things, for the
deportation of aliens who ``advocate the economic, international and
governmental doctrines of world communism or the establishment in the
United States of a totalitarian dictatorship, or who are members of or
affiliated with any organization'' that so advocates. 8 U.S.C.
1251(a)(6)(D) & (H) (1988). That law, which applied to aliens who were
members of the communist party or advocated communist doctrine, was
used to exclude Pierre Trudeau, the former Prime Minister of Canada,
French actor Yves Montand, British author Grapham Greene, and Columbian
Nobel laureate Gabriel Garcia Marquez. See Counter Terrorism
Legislation, Hearing before the Subcomm. on Terrorism, Technology, and
Government Information of the Senate Comm. on the Judiciary, 104th
Cong., 1st Sess. 21 (May 4, 1995) (statement of Professor David Cole).
\22\ See Immigration Act of 1990, Pub. L. No. 101-649 (repealing
McCarran-Walter Act); Rafeedie v. INS, 795 F. Supp. 13, 22-23 (D.D.C.
1992); American-Arab Anti-Discrimination Comm. v. Meese, 714 F. Supp.
1060 (C.D. Cal. 1989), vacated, American-Arab Anti-Discrimination Comm.
v. Thornburgh, 970 F.2d 501 (9th Cir. 1991) (holding the McCarran-
Walter Act to be unconstitutional as applied).
---------------------------------------------------------------------------
The fact that aliens in this country are entitled to full
First Amedment rights was also forcefully reafirmed in
American-Arab Anti-Discrimination Committee v. Reno.\23\ The
Ninth Circuit found that the proposed deportation of seven
Palestinians and a Kenyan for their alleged ties to the Popular
Front for the Liberation of Palestine was inconsistent with
First Amendment freedom of association protections, holding
that ``the values underlying the First Amendment require the
full applicability of First Amendment rights to the deportation
setting.''\24\
\23\ 70 F.3d 1045 (9th Cir. 1995).
\24\ Id. at 1063. A Washington Post editorial emphasized the
fundamental fairness of the American-Arab Anti-Discrimination Comm.
decision:
``[T]he bottom line from the appellate court is this: Aliens
present in the United States have the same right to political speech
and association as citizens. Aliens cannot be singled out for
deportation because they exercise those rights. * * * These clear and
principled determinations are on firm constitutional ground.
Aliens and Speech, Wash. Post, Nov. 13, 1995 at A20.
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IV. Waiver of Exclusion and Deportation for Certain 274C Violations Too
Narrow To Ensure Against Extreme Hardship on Families of Citizens and
Lawful Permanent Residents
The Committee agreed to authorize the Attorney General to
waive exclusion or deportation for an alien who is already a
lawful permanent resident and who has temporarily proceeded
abroad and has committed document fraud on behalf of a spouse,
parent, or son or daughter.\25\ Although this waiver improves
current law and is a welcome addition to the bill, we believe
that it should be expanded to ensure that the law does not
impose extreme hardship on families of any alien who commits a
274C violation. An alien who is the spouse, parent, son or
daughter of a United States citizen or lawful permanent
resident whould not be excluded or deported for committing a
274C violation if the refusal of admission would result in
extreme hardship to the citizen or lawful permanent resident
family member. The Attorney General should at least be granted
this limited amount of discretion when considering the
permanent separation of close familes.
\25\ H.R. 2202 Sec. 362 (1995). Under current law, section 274C of
the INA, at 8 U.S.C. 1324c prohibits the use or creation of a
fraudulent document for immigration purposes. Violation of this
provision would subject an alien to both a civil penalty as well as
exclusion under section 212(a)(6)(F) of the INA, at 8 U.S.C. 1182
(a)(6)(F)) or deportation under section 241(a)(3)(C) of the INA, at 8
U.S.C. 1251 (a)(3)(C)).
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TITLE IV. Enforcement of Restrictions Against Employment
A wide range of views exists regarding whether and to what
extent the proposed new worker verification ``pilot project''
established under Section 403 represents sound public policy.
There is no disagreement among us, however, on two key points:
(i) if a verification system is ultimately adopted, protections
should be afforded innocent employers and workers who might be
adversely affected by inaccurate information; and (ii)
regardless of whether it is adopted, the INS and Department of
Labor must be granted enhanced authority to penalize
unscrupulous employers who consistenly hire undocumented aliens
and exploit them in near ``slave-labor'' conditions.
I. Protecting the rights of employees and employers under the
verification system
In recognition of the potential liability that innocent
employers may face by dismissing or refusing to hire job
applicants due to errors in government databases or in the
operation of the verification pilot program, the Committee
adopted an amendment protecting from liability those employers
who, in ``good faith,'' rely on the verification confirmation
mechanism. It is important to note, in this context, that the
amendment should not be interpreted to prevent dismissed
employees or unsuccessful job applicants from challenging
employers who had other, unlawful motivations to dismiss or
refuse to hire such employees and applicants. The intent is
carefully limited to protect employers only under circumstances
in which the relevant hiring decision is triggered solely by
inaccurate information provided by the confirmation mechanism.
Equally important in this regard is an amendment offered by
Representative Frank (and approved by the Committee by voice
vote) protecting innocent employees from errors arising from
the verification mechanism, by allowing them to seek
compensation under the Federal Tort Claims Act (FTCA).\26\
Because the verification process would (like employer
sanctions) be administered at the time of hire, all authorized
workers who may be adversely affected by errors in the pilot
verification system will be afforded redress through at least
one of several existing mechanisms. For example, any employee
who is hired, if even for a few hours, and who is subsequently
dismissed because of inaccurate information provided by the
confirmation mechanism will automatically be entitled to
compensation under the FTCA. In this connection, we note that
the amendment's wording ``shall be entitled to compensation''
indicates that the employee in such circumstances need only to
demonstrate, based on a preponderance of evidence, that the
dismissal was attributable to an error in the confirmation
mechanism. No proof of negligence is required and none of the
existing exemptions from liability in the FTCA (including for
harm flowing from policy decisions or claims arising from
``misrepresentation, deceit, or interference with contract
rights'') are applicable to this new form of redress.
\26\ 28 U.S.C. Sec. Sec. 2671-2680.
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To the extent that employers verify prospective employees
selectively, or apply the results of information differently
based, for example, on national origin or citizenship status,
such employers would be liable for discrimination claims
brought by the affected job applicants. In such cases job
applicants have several avenues to pursue redress. First,
selective application of verification procedures is already
prohibited under INA Sec. 274B (``Unfair Immigration-Related
Employment Practices''). Second, such actions may also be
prohibited (depending on the specific circumstances), under
Title VII of the Civil Rights Act and/or under 42 U.S.C.
Sec. 1981, both of which address employment discrimination
claims based on race and national origin. In this respect, we
note that the ``good faith'' immunity provision does not
protect employers who abuse the verification system by applying
it in ways not required by the law.
The Committee also tried to strike a careful balance
between protecting the rights of the employer and the rights of
the employee in certain unusual circumstances arising from the
temporary or time-limited nature of employment authorization
documents possessed by certain individuals, or cases in which
employers have reason to believe that individuals presenting
what appear to be genuine documents are nonetheless
unauthorized to work. At issue is the existing provision of INA
Sec. 274A, which prohibits employers who have been provided
documents which on their face appear genuine from requiring the
production of a specific document or additional documents.\27\
The Frank amendment addresses two specific circumstances in
which it may be permissible for employers to request additional
documents from individuals. It permits employers to request
from an employee who previously submitted a time-limited
employment authorization document an additional document
demonstrating continuing employment eligibility. In addition,
if an employer has a reasonable basis to believe that an
individual who presents a document which appears on its face to
genuine is in fact unauthorized to work, the bill only permits
such employer to: (1) inform the individual of his intention to
verify the validity of the document; and (2) dismiss the
individual upon receiving confirmation that the individual is
authorized to work.
\27\ Adopted as part of the Immigration Act of 1990, this provision
is designed to prevent adverse impact on authorized workers who have
been required by employers to produce additional documents, even after
presenting legitimate documents demonstrating employment authorization.
Some employers, apparently fearing the consequences of requiring such
employees to produce additional or subsequent documents, have requested
a clarification of what is and what is not permitted in such
circumstances.
---------------------------------------------------------------------------
Nothing in the legislation, however, prohibits the
individual from offering alternative documents which
demonstrate employment authorization. In addition, while
verification is pending, the employer may not delay the hiring
of, refuse to hire, or dismiss, or take any adverse employment-
related action incident to the hiring against the individual,
unless such action is wholly unrelated to the eligibility
issue. In this context, nothing in the bill can or should be
read to permit any action related to the document verification
process in general, or to the request for additional documents
or additional verification of documents presented in
particular, that is a mere pretext for unlawful discrimination.
II. The legislation fails to recognize that labor law enforcement is
vital to employer sanctions enforcement
The opportunity for employment is the single most important
and pervasive incentive for illegal immigration. There are
industries which rely upon and, more often than not, exploit
the work of undocumented workers. H.R. 2202 fails to recognize
the important role played by the Department of Labor in helping
combat illegal immigration by complementing enforcement of
employer sanctions. The bill would authorize only 150
additional staff positions for the Wage and Hour Division to
investigate violations of wage and hour laws in areas where
there are high concentrations of undocumented workers,\28\ a
substantially weaker commitment to worksite enforcement than
the President's FY96 budget request calling for (202 additional
positions).\29\ Even this weak provision is meaningless, since
the Republican Majority has previously voted to cut funding for
DOL Wage and Hour Division.\30\ In this sense the bill lacks
teeth by refusing to allow the Administration to complete its
comprehensive anti-illegal immigration strategy which has thus
far been highly successful at the border.\31\
\28\ H.R. 2202, Sec. 102 (2).
\29\ House Judiciary Views Letter, supra note 6. See also Worksite
Enforcement of Employer Sanctions: Hearing Before the Subcom. on
Immigration and Claims, 104th Cong., 1st Sess. (1995) (statement of
Maria Echaveste, Administrator, Wage and Hour Division, U.S. Department
of Labor) [hereinafter Statement of Maria Echaveste].
\30\ 141 Cong. Rec. H3281-H3303 (daily ed. March 16, 1995). See
also Statement of Maria Echaveste supra note 29.
\31\ ``A Good Border Year: 1995 was a Year of Progress and
Innovation'', San Diego Union-Tribune, December 29, 1995. See also
``Encouraging Progress on Deportations: Statistics Support the Steady,
Measured Approach of the INS,'' Los Angeles Times, January 12, 1996.
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The Committee rejected, by a party line vote, an important
amendment offered by Representative Berman which would have
authorized funding the new Wage and Hour inspectors, given the
Secretary of Labor authority to issue subpoenas and collect
evidence against violating employers and doubled the penalties
for employers found to have violated both labor standards and
immigration laws. This would assist the INS and Department of
Labor in uncovering horrible situations like the incarceration
and enslavement of Thai immigrants in El Monte, California by
garment manufacturers,\32\ and crack down on employers who
treat the penalties available under current law as a mere cost
of doing business.\33\ In rejecting Representative Berman's
amendment, the Majority signals an unwillingness to enforce the
law. Minor and sporadic sanctions will never be sufficient to
overcome the economic and competitive advantages that
unscrupulous employers may achieve by hiring and exploiting
illegal immigrants, thereby undercutting competitors who
provide fair wages and working conditions.
\32\ Editorial, Slavery's Long Gone? Don't Bet on it, L.A. Times,
August 4, 1995, at B8. (Thais paid $1.60 an hour and found confined in
illegal garment factory in El Monte). See also George White, Workers
held in Near-Slavery, Officials Say, L.A. Times, August 3, 1995, at A1.
\33\ Id.
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title v. reform of legal immigration system
Under the bill, legal immigration would be reduced from
800,000 admissions to a nominal 535,000 immigrants a (thirty
percent reduction).\34\ In addition, the bill includes a whole
host of new procedural rules which would push the numbers far
below the 535,000 cap.\35\ Moreover, after a short transition
period, through category elimination or new restrictions, U.S.
citizens will be virtually unable to sponsor their mother,
father, brother, sister or adult child for immigration. The
bill sets up a false dichotomy between the ``nuclear family''
of permanent residents on the immigration waiting lists and the
relatives of U.S. citizens. Title V's reductions in the number
of legal immigrants and in access to legal immigration reflect
a fundamental misunderstanding of the character and benefits of
America's historic commitment to legal immigration, family
reunification and protection of refugees.
\34\ See CRS Report for Congress, Immigration: Analysis of Major
Proposals to Revise Family and Employment Admissions, February 14,
1996.
\35\ See discussion, infra.
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Title V's premise is that legal immigration and refugee
admissions are higher than ever, and create problems and costs
rather than benefits and opportunities. This is a false and
distorted understanding, belied by numerous government and
private sector studies and the reality of how today's
immigrants are revitalizing communities across the country.
Last year's legal immigrant and refugee admissions roughly
equaled the level of immigration in the early 1900's, but as a
proportion of the population, today's admissions are about one
third the level of that time period.\36\
\36\ Current Population Reports (1994 March Supplement), U.S.
Bureau of Census. On an annual basis, total legal immigration
constitutes only three immigrants for every 1,000 Americans, and
immigrants comprise only 8.7% of the U.S. population.
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According to both conservative and liberal analysts, from
organizations such as the CATO Institute, the Urban Institute
and the Councils of Economic Advisors of Presidents Reagan and
Bush, immigrants pay much more in taxes than the cost of
services to them (although most taxes are paid to the Federal
Government and most services, especially education and health
care, are provided by local governments).\37\ Indeed, the Urban
Institute concluded in 1994 after reviewing all relevant
studies that immigrants pay $25-30 billion annually more in
total taxes than the total cost of services.\38\ A 1990 survey
of leading U.S. economists, including seven Nobel laureates,
found that 80% believed immigration has had a ``very favorable
impact'' on economic growth.\39\ The Department of Labor and
the AFL-CIO have also concluded that in the aggregate
immigrants stimulate the economy.\40\ Moreover, a 1990 study
found that there is no correlation between the levels of
immigration and unemployment either in states or on the
national level.\41\
\37\ Julian N. Simon, Immigration: The Demographic and Economic
Facts published by CATO Institute and the National Immigration Forum.
\38\ Fix, Michael and Jeffery Passel, Setting the Record Straight:
Immigration and Immigrants (Urban Institute Press: 1994) (Washington,
D.C.) [hereinafter Setting the Record].
\39\ Survey of Economists, conducted by the Alexis de Tocqueville
Institution cited in An Analysis of H.R. 2202: The Immigration in the
National Interest Act of 1995 by Stuart Anderson, (September 1995) at
p. 12 [hereinafter Anderson Analysis]. See also Stuart Anderson,
Employment Based Immigration and High Technology February 1996
\40\ See, Press Release--United States Department of Labor, July
11, 1989. See also Resolutions 59-61, AFL-CIO 1995 Resolution Book One,
October 23-26, 1995.
\41\ Richard Vedder, Lowell Gallaway, and Stephen Moore,
Immigration and Unemployment: New Evidence, Alexis de Tocqueville
Institution, July 1994.
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Perhaps more important than the economic contributions are
the familial, social and political contributions of immigrants.
Legal immigrants, refugees and persons granted asylum are ``new
Americans'' who do not threaten, but rather strengthen the
great American experiment in freedom and democratic pluralism.
Immigrants have died defending American interests in foreign
wars and have made discoveries which have strengthened our
military capacity. Immigrants who have fled tyranny and
oppression deeply appreciate the freedom which America offers,
and their work and perspective serves to enhance the American
commitment to freedom and democracy.
I. Dramatically reduces family-sponsored immigration and punishes those
who have waited to lawfully enter the United States
As noted above after a short transition period, the bill
would make it virtually impossible for U.S. citizens to sponsor
their mother, father, brother, sister, or adult child for
immigration. In addition, the bill would set an annual cap on
family immigration of 330,000--more than one-third below
current levels. This arbitrary cap is inadequate to meet the
needs of U.S. citizen families and would create immediate
backlogs for spouses and minor children of lawful permanent
residents as well as parents of U.S. citizens. We also object
to the bill's arbitrary reduction to 85,000 in the number of
visas granted to spouses and minor children of lawful permanent
residents. \42\ Immigration by spouses and minor children of
lawful permanent residents is currently set at approximately
98,000 per year, \43\ a number that does not meet current
demand and is already creating massive backlogs.
\42\ H.R. 2202, Sec. 512(a)(1).
\43\ Immigration and Naturalization Factbook Summary of Recent
Immigration Data, August 1995, at p. 8 [hereinafter Factbook].
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We object to the arbitrary exclusion of parents from the
immediate relative category, thereby subjecting them to a
45,000 cap and a 25,000 floor. \44\ There is no justification
for limiting immigration by parents who may be the main source
of childcare and other familial support for working families.
\45\ The 25,000 visa limit would mean that 50% of U.S. citizen
sponsors who wish to reunite with their parents would be
prevented from doing so a massive new blacklog would be
created. While we agree that spouses and minor children should
receive priority, we see no rationale for this arbitrary limit
on parents of U.S. citizens.
\44\ H.R. 2202, Sec. 512(a)(2)(A).
\45\ Parent immigration currently numbers approximately 56,000 per
year. As the number of spouses and children of citizens increase, the
number of visas available for spouses and children of permanent
residents decrease. Since that category is guaranteed of minimum of
85,000, the residuum that is left for parents of United States citizens
decreases. Thus the overall family cap, combined with projected need,
means that immigration by parents under H.R. 2202's would immediately
meet the 25,000 floor set by the bill. The cap of 45,000 would be
meaningless, as other superseding categories would prevent this number
from being reached. See Factbook supra, note 43 at 13.
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In addition, Section 512(b)'s requirement that parents of
citizens procure health insurance before they can obtain a visa
represents a nearly insurmountable obstacle to their
immigration. The Administration estimates that even where it
may be possible to purchase the required health insurance for
an elderly parent, it would cost an average of $9,000 or more a
year, prohibitively high for most American families. \46\ We
are also concerned that insurers may not agree to offer health
insurance for immigrating parents at any cost. \47\
\46\ Letter from Jamie Gorelick, Deputy Attorney General, U.S.
Department of Justice, to Orrin G. Hatch, Chairman, Committee on the
Judiciary, U.S. Senate (February 14, 1996).
\47\ Id.
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H.R. 2202 also unfairly eliminates immigration by married
adult children of U.S. citizens, siblings of U.S. citizens, and
most unmarried adult children of both citizens and residents.
It is disturbing to think that government policy would keep
American parents and their children apart simply because a
child is older than 21 years of age. Of all immigrants,
children on the brink of entering the workforce are exactly the
type of new Americans this country needs, they will be here in
their most productive years and they will be here to care for
their parents in their golden years. \48\
\48\ Representative Smith's amendment allowing immigration by
certain adult sons and daughters of U.S. citizens and lawful permanent
residents is so narrow as to be virtually meaningless. We see no logic
in barring all adult children who are over age 25 and imposing a
requirement that the son/daughter has ``never been married'' is
absolutely unjustified. This requirement would bar a 21-year-old
daughter whose husband has died and who remains dependent on the family
for emotional and physical support, especially in a time of grief and
transition. Similarly, this requirement would bar a daughter who has
fled from an abusive situation and sought a divorce in order to save
her own life. And imposing a requirement that the son or daughter be
childless serves only to harm innocent dependents who might at that
point be in dire need of the support that grandparents can provide.
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We also find little rationale for eliminating immigration
by siblings of U.S. citizens.\49\ Brothers and sisters help to
reinforce the family unit. They contribute to the economic and
emotional strength of a family in many ways, such as pooling
money to open businesses and sharing in the care of parents of
each other's children.\50\
\49\ At a minimum, this category should be maintained at least
until those who have been waiting lawfully in line with approved
petitions are allowed to immigrate to the United States.
\50\ Immigration by brothers and sisters of U.S. citizens currently
numbers approximately 65,000, while adult unmarried sons and daughters
number only approximately 46,000 per year. Moreover, immigration by
married sons and daughters of U.S. citizens are limited to 23,400.
These are modest numbers and should be maintained.
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II. Unjustifiable cap on refugees
We strongly object to the bill limiting admissions of
refugees to 50,000 per year--reducing current admissions by
approximately half.\51\ Such a cap would undermine our efforts
to encourage the international community to be more forthcoming
on refugee resettlement and send the wrong signal to those
governments who may question our commitment to promoting human
rights around the world. Given the political and economic
instability in almost every region of the world, it is
imperative that the United States maintain its current flexible
admissions policy for domestic resettlement that allows for
expansion and contraction of numbers in response to changing
conditions.
\51\ H.R. 2202 Sec. 521(a)(2)(A). In FY 1995, 98,000 refugees were
admitted, and in FY 1996 90 slots have been set aside. See CRS Report:
Immigration, Public Policy Institute, Ruth Wassen, Joyce Vialet,
William Krouse, January 17, 1996.
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A cap on refugee admissions would represent an historic
shift in the country's commitment to protecting people
worldwide who have been persecuted or fear persecution because
of their race, religion, nationality, political opinion, or
membership in a particular group. Current law provides an
orderly but flexible process in which the Administration can,
in consultation with Congress, set the number of annual refugee
admissions at a level that accounts for both the global
situation and our international commitments.\52\ Congress
maintains the final say over refugee admissions through the
appropriations process, even as the President has the authority
to provide additional slots if justified by ``urgent
humanitarian concerns or are otherwise in the national
interest.'' H.R. 2202 would take the dramatic step of requiring
a full-fledged act of Congress to allow any additional refugees
to meet compelling humanitarian needs.
\52\ 8 U.S.C. 1157 Sec. 207.
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H.R. 2202's proposed policy shift could not come at a more
inappropriate time. The United Nations High Commissioner for
Refugees has estimated that since 1992 the number of refugees
worldwide has risen to 20 million.\53\ The consequences of a
refugee cap are neither abstract nor theoretical: it would
require dramatic reductions not only in the number of former
Soviet Jews, Evangelical Christians, and Ukrainian Catholics
admitted as refugees, but also in the number of Vietnamese,
Bosnian and Cuban admissions. By forcing the government to
choose among equally worthy groups, the cap would politicize
refugee admissions and endanger the lives of thousands of
people worldwide.\54\ For example, we expect to admit 40,000
Jewish refugees from the former Soviet Union over the next
several years, but we are also committed to accepting between
7,000 to 14,000 Cubans as part of our agreement with Cuba. Just
these two programs could exceed the 50,000 cap.\55\
\53\ Letter from Reno von Rooyen, Representative of the United
Nations High Commissioner for Refugees, to Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary, U.S. House of Representatives
(October 25, 1995).
\54\ The refugee cap is in direct conflict with the will of the
House of Representatives. On May 28, 1995, the House adopted an
amendment to H.R. 1561 that questions the potential forced repatriation
of Vietnamese asylum seekers held in detention throughout Southeast
Asia. It also foresaw the potential resettlement of these Vietnamese,
which would put additional pressures on the U.S. refugee admissions
program just as a refugee cap of 50,000 is enacted. The amendment,
sponsored by Representative Chris Smith, requires the United States to
offer as many as 40,000 of these people the opportunity to resettle
here or in other free countries would be impossible to implement under
a ``hard cap'' of 50,000 refugees per year.
\55\ Anderson Analysis, supra, note 39, p. 26.
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An amendment was made by Chairman Hyde to permit the annual
50,000 cap to be exceeded in the event of an ``emergency'' at
some time after the annual consultation with Congress on
refugee numbers. It is unlikely, however, that the cap would be
pierced. Once the State Department has squeezed the numbers
down to 50,000 for a given year, by shutting down or reducing
ongoing programs it is most unlikely to reverse itself by
raising the numbers and re-establishing these same programs in
mid-year no matter how compelling the circumstances.
III. Severely limits attorney general's humanitarian parole authority
We oppose the bill's sweeping new restrictions on the
Attorney General's parole authority. Section 524 of the bill
states that the Attorney General may parole aliens on a case by
case basis only for urgent humanitarian reasons or for a reason
deemed strictly in the public interest. We believe that there
is no rationale for this legislative change. The current law
provides the Attorney General with appropriate flexibility to
deal with compelling immigration situations.\56\ For example,
the amendment would not permit the parole of an alien to attend
the funeral of a close family member or of a parent to
accompany a child paroled into the United States for an organ
transplant.\57\ In light of the proposed refugee cap, this
provision unwisely ties the Administration's hand in an area
where flexibility is always needed to deal with unforeseen
emergency migration circumstances.
\56\ 8 U.S.C. Sec. 1157.
\57\ Letter from Jamie S. Gorelick, Deputy Attorney General, U.S.
Department of Justice, to Henry J. Hyde, Chairman, Committee on the
Judiciary, U.S. House of Representatives (September 15, 1995) at 4.
---------------------------------------------------------------------------
IV. Asylum procedures contravene international norms
Section 531 represents an unnecessary and dangerous effort
to reform the system by which asylum is granted to persons who
have a well-founded fear of persecution and need protection in
the United States. As a result of the regulatory changes
adopted in January of 1995,\58\ and the increases in
appropriations provided under the 1994 Crime Bill, the asylum
process has been improved substantially.\59\ Additional asylum
officers and the increases in the immigration judge corps have
allowed us to gain control over the potential fraud in asylum
applications and increase our effectiveness in completing cases
within 180 days of application. New asylum claims filed with
the INS since the reforms have decreased by 57 percent, from
123,000 in 1994 to 53,000 in 1995.\60\ And the asylum process
was able to process more than 126,000 cases as compared to only
61,000 cases in the previous year.\61\ Eighty-four percent of
cases are now heard within 60 days of applications,\62\
ensuring that applicants obtain access to a speedy procedure.
At the same time, the INS has redirected their sources to focus
on fraud investigations concerning asylum, and several cases
have resulted in convictions.\63\ Yet, in the face of these
positive developments, H.R. 2202 unnecessarily imposes time
limits on applications and restricts the Attorney General's
discretionary authority to withhold deportation.
\58\ 59 Fed. Reg. 62284-62303 (1994) (amending 8. C.F.R. Sec. 228
effective January 4, 1995).
\59\ See Celia W. Dugger, Immigration Bills' Deadlines May Imperil
Asylum Seekers, N.Y. Times, February 12, 1996, at B1.
\60\ INS News Release supra note 9.
\61\ Id.
\62\ Id.
\63\ William Branigan, INS Chief Highlights Reform in Political
Asylum System: Year-Long Campaign Slashes New Claims by 57 Percent,
Wash. Post, January 5, 1996, at A2.
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The 30-day time limit for filing asylum applications set
forth in Section 531 will create a complex layer of
adjudication and divert resources from resolving the merits of
the asylum applications.\64\ The 30-day time limit will also
result in increased applications which have not been carefully
prepared, since asylum seekers will be forced to submit by the
deadline or be categorically denied. Most meritorious
applicants rarely make their first contact with human rights
organizations, much less find legal assistance for the
preparation of their applications, within such a short time
period.\65\
\64\ Since the bill rightfully does not apply a 30 day limit to
withholding of deportation, the Attorney General will have to decide
the merits of a refugee's claim regardless of the timeliness of the
application. Also, while the Committee correctly amended the bill to
incorporate a waiver of the 30 day time limit where there has been a
change of in any circumstances, the INS will now not only have to
divert resources to adjudicate the timeliness of the application, but
to adjudicate the waivers available for changed personal circumstances
as well as country conditions.
\65\ Since many asylum seekers flee their home countries with few
resources, many persons cannot afford private attorneys and have to
rely on church groups, charitable organizations and other low cost
legal service providers. See David Cole, Making Time for Freedom
Thirty-Day Deadline for Political Asylum Requests Defies Reality, Legal
Times, December 4, 1995, at 20.
---------------------------------------------------------------------------
The requirement that asylum applications be filed within 30
days also violates U.S. international obligations. Article 33
of the 1967 Protocol regarding the Status of Refugees binds
signatories to the duty of not returning any refugee who could
face a threat to his or her life or liberty in the country of
reared persecution, regardless of when the person makes known
the claim to need such protection. While the United Nations
High Commissioner for Refugees has acknowledged that some
countries can impose filing deadlines, they have forcefully
stated that the failure to abide by such deadlines cannot be a
reason by which the application is not considered at any future
time.\66\
\66\ During Committee mark-up of the bill, the Majority stated the
Committee's expectation that the application itself could be
simplified, so that asylum seekers could submit a short and simplified
application within the 30 day time limit, with a second opportunity to
amplify and strengthen the application at a later date. While this is
not the best or the preferred solution, if necessary the Committee
should make this understanding very clear to the Administration so that
the regulations clearly allow for a subsequent opportunity for the
applicant to supplement, amplify, and complete the formal application
at a later date after the 30-day period.
---------------------------------------------------------------------------
Section 305 of the bill eliminates the Attorney General's
current discretionary authority of ``withholding of
deportation.'' This is a serious breach of current policy and
U.S. obligations under United Nations conventions.\67\ Under
current law, if a person is denied discretionary asylum, he or
she can still seek protection under a higher standard for
withholding of deportation. This requires that the applicant
show that it is more likely than not that his or her life or
freedom would be threatened in the country of origin. By
eliminating such withholding of deportation discretion, the
bill abrogates international refugee law requiring that a
country not forcibly return (refoul) a person to a place of
persecution.\68\
\67\ U.N. Convention on the Status of Refugees--Article 33 (1951).
\68\ During deliberations at the Committee mark-up, there were
several statements by the Majority that it is their intent that
withholding of deportation will be restored as the bill moves to a
floor vote. See Judiciary Committee Markup Transcript October 11, 1995,
at p. 101-103. We fully expect such a change to be made, consistent
with current law and obligations under international refugee law, and
are willing to work with the Majority to ensure that this vital
protection remains in the U.S. law.
---------------------------------------------------------------------------
We would also note that under section 531 asylum may be
precluded if the Attorney General, pursuant to bilateral
agreements with third countries, is able to find another
country that is willing to accept that person. In our view it
is essential that the third country return provision be
construed to retain a high level of discretion for the Attorney
General to decide what is most appropriate in individual cases,
consistent with humanitarian circumstances and United States
security concerns.\69\
\69\ In this regard, the discussion at the Committee mark-up
highlighted the common understanding about this flexibility for the
Attorney General, and the inclusion of a public interest exception in
this discretionary authority. We view the potential of these return
agreements with caution. Assurances must be obtained that the intent of
the agreement now being negotiated with Canada, and other future
schemes with other countries, will not serve to diminish refugee
protection for those who need it. In this regard, we urge that such
agreements be based not on the concept of entry, but targeted to reduce
the number of double applications. What is important is not necessarily
the route which a refugee goes through before applying for asylum in a
given country, but rather that an asylum seeker can make a claim in one
country, and if found not to be refugee under a fair and substantive
procedure, he or she would be prevented from shopping around and making
unfounded claims in other countries. Return agreements should not focus
on the method, time or process of transit and entry; they should focus
on the need to prevent duplicate applications in various nations, when
their cases have been already fairly determined not to be well founded
and are clearly abusive.
---------------------------------------------------------------------------
IV. Keeps families separated and fails to eliminate backlogs
While the formula for backlog reduction set forth in
section 553 of the bill addresses a substantial portion of the
existing backlog for spouses and minor children of lawful
permanent residents, it does nothing to address the issue of
equity for those in eliminated family categories who have been
waiting lawfully for their turn to immigrate for many
years.\70\ Even with the visas provided to address the backlog
of spouses and minor children of lawful permanent residents,
there will remain as estimated 300,000 people in the backlog at
the end of five years.\71\ Tragically, the bill would result in
the permanent separation of the families of U.S. citizens, in a
purported effort to benefit the immediate relatives of lawful
permanent residents in the second family preference category.
\70\ There are approximately 2.5 million eligible relatives in the
potentially eliminated categories whose visa petitions have been
approved according to Testimony by Cornelius D. Scully, Director,
Office of Legislation, Regulation and Advisory Assistance, U.S. State
Department, at Markup of H.R. 1915, Immigration in the National
Interest Act of 1995, U.S. House of Representatives, Subcomm. on
Immigration and Claims, Committee on the Judiciary, (July 17, 1995).
\71\ Id.
---------------------------------------------------------------------------
Proponents of this legislation have argued that the
elimination of the adult children and siblings family
preference categories is necessary in order to expedite the
reunification of the ``nuclear families'' of permanent
residents--for which there is a 1.1 million person backlog.
Approximately 850,000 of the people in the backlog are the
spouses and minor children of permanent residents who were
undocumented immigrants who were granted legalized status
according to the legalization provisions of the Immigration
Reform and Control Act of 1986 (IRCA).\72\ It has been
estimated that up to half \73\ of the 850,000 are already in
the country under quasi-legal resident status under the Family
Unity protection provisions of the Immigration Act of 1990.\74\
\72\ Id.
\73\ See CRS Report for Congress, Immigration: Analysis of Major
Proposals to Revise Family and Employment Admissions, February 14,
1996.
\74\ Pub. L. No. 101-649, 105 Stat. 322, Sec. 301 (1990).
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Nearly all of the immigrants legalized by IRCA have now
satisfied the five-year residency requirement for
naturalization.\75\ The newly gained eligibility for
naturalization of legalized permanent residents is contributing
greatly to the record surge of naturalization applications
being filed at INS district offices throughout the United
States.\76\ The families of those who are naturalizing will
become eligible to immigrate immediately and subject to no
numerical limits as the spouses and minor children of new
citizens.
\75\ See 8 U.S.C. Sec. 1447.
\76\ Harry Pachon, Prop. 187 Isn't All That's Propelling Latinos to
INS, The Sacramento Bee, May 22, 1995, at B7.
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At the same time, as noted above, this legislation would
eliminate forever, the ability of United States citizens and
lawful permanent residents to petition for the immigration of
their children over the age of 21 or to bring in their
siblings. Given these changes, a more equitable solution to the
backlog problem would be to ``grandfather in'' all those with
approved visa petitions, or at least those within a year or two
after enactment of reaching their ``priority date.'' A new
legal immigration system that begins with backlogs is not a
system that has been meaningfully reformed.
V. Sunset provision is backdoor attempt to stop all immigration
We are extremely troubled by Section 505 which amends
Section 201 of the INA to require Congressional review of the
numerical limits placed on immigration. Although, the review
provision has been described as merely requiring a ``periodic''
revisitation of immigration policy by Congress, we are
concerned, however, that the sunset provision, could end all
numerically limited immigration into the United States after
the fiscal year 2004, the year the bill designates as the first
period of review.
This provision could be construed as a backdoor attempt at
a moratorium on immigration. Under this provision determined
immigration opponents would be given significant leverage in
blocking new immigration legislation. If, for example, during a
review period, a small group of Senators who are opponents of
all immigration decide to filibuster the required
reauthorization bill, the sunset requires that all numerically
limited immigration be halted. Ultimately, this section could
have the effect of eliminating immigration to the United
States, with the exception of the immediate relatives of U.S.
citizens who fall within a numerically unrestricted
category.\77\
\77\ See also Letter from Larry M. Eig, Legislative Attorney,
American Law Division, Congressional Research Service, to Honorable
Patsy T. Mink, Member, U.S. Congress (February 28, 1996).
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title vi. restrictions on benefits for illegal aliens
Title VI effectuates a number of redundant \78\ and
unneeded changes relating to the availability of public
benefits not only to undocumented but also to legal aliens, and
imposes a series of harsh new restrictions and burdens on
families seeking to sponsor immigrants.
\78\ Most major needs-based programs are already denied to illegal
aliens. Generally, those programs that do not check immigration status
provide crisis intervention, public health service or services for
small children; or small programs such as soup kitchens and baseball
leagues that are administered by non-profit charities or church groups.
See, Larry Eig and Joyce Vialet, CRS Report 93-1046A, Alien Eligibility
Requirements for Major Federal Assistance Programs (December 8, 1993).
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I. Unfunded mandates on state and local governments and harsh
restrictions on public assistance available to legal immigrants
Section 601(b) would require state and local governments to
deny any contracts, loan agreements, and professional or
commercial licenses funded by the state to aliens not lawfully
present in the United States. This would impose significant new
unfunded mandates on state and local governments, and slow down
services for all residents, aliens and citizens alike.\79\
Although section 603 contains a list of programs that would be
excepted from the requirements of section 601 and 602 (e.g.,
for ``non-cash, in-kind, short-term emergency disaster
relief''), the language is too narrowly drawn to relieve states
and localities from most of these time-consuming,
administrative requirements.
\79\ This provision would require that federal, state and local
government entities that issue such licenses develop a system to verify
the immigration status of every applicant for such licenses. For
example, section 601(b)'s prohibition on state and local governments'
provision of professional or commercial licenses to persons not
lawfully present implicitly requires that all federal, state and local
government entities that issue such licenses develop systems to verify
the immigration status of every applicant for such licenses. Not only
would this likely result in discriminatory treatment, it would also
pose an enormous unfunded burden on state and local entities that would
inhibit their ability to provide services to all applicants and
residents in their states or localities.
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The ``public charge'' provisions of section 622 are also
far too rigid.\80\ For example, it would require the
deportation of someone for having received public benefits even
if the individual later becomes completely self-reliant.
Another example of the rigidity of section 622 is its
subjecting refugees or asylees who become ``public charges'' to
deportation notwithstanding the fact that requirement is waived
at the time of entry.\81\ We are also troubled by the list of
programs in section 622 for which receipt by an immigrant would
constitute being a ``public charge.'' For instance, Title XX
Social Service Block Grants to states (used for emergency needs
such as homeless shelters, soup kitchens, and battered spouse
shelters) are included on the list even though these programs
are provided through state and local governments and are often
administered by private charities.\82\
\80\ Current law already provides for the deportation of immigrants
who become public charges, and we feel it more appropriate that we
encourage the Immigration and Naturalization Service to step up its
enforcement of existing law. See 8 U.S.C. 1251(a)(1)(A).
\81\ Under current law a refugee or asylee who is admitted to the
United States is admitted without regard to whether they may later
become a public charge because it is thought their flight from
persecution and our offer of safe harbor should not be dependent on
their financial circumstance. See 8 U.S.C. Sec. Sec. 1157(c)(3),
1159(c). Yet, section 622 would subject these individuals to public
charge deportation if they were to use more than 12 months of public
services within their first seven years in the United States.
\82\ See 42 U.S.C. 1397(o).
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II. Harsh restrictions on sponsors of immigrants
Under section 631's ``deeming'' provision, the income and
resources of an immigrant's sponsor would be attributed to the
immigrant for purposes of determining eligibility for public
benefits without regard to whether the sponsor is actually
making any contribution to the immigrant's well-being or
whether the sponsor is able to meet his or her own family
obligations. Section 631 also dramatically expands the number
of federal programs that are ``deemed'' (SSI, AFDC, and Food
Stamps) to include nearly every federal means-tested benefit--
both cash and non-cash.
Programs that receive federal funds and would be forced to
implement these burdensome restrictions include child
protective services, foster care, prenatal care, job training,
teen crisis centers, soup kitchens, homeless shelters, Pell
grants for education, and student loans. This means that state
and local governments, colleges and universities, and private
charities would have to ask all of their clients, including
U.S. citizens, whether they came to the U.S. as immigrants and
whether they had sponsors. Furthermore, these individuals would
have to demonstrate their sponsors' incomes before they could
be considered eligible for services.
These punitive changes are being made despite the fact that
many of the programs for which immigrants would be ``deemed''
are relatively low-cost and are of vital importance to the
immigrant (e.g., programs to assist the homeless, the hungry,
abused and neglected children, and emergency Medicaid). If
immigrants cannot get access to health care, the entire
community suffers.
Section 631 would also repeal the current exemption from
``deeming'' for sponsored immigrants who become disabled after
entry and create new administrative complexities and
requirements for state and local governments and private
charities. Further, by attributing 100 percent of a sponsor's
income and resources to the immigrant, the bill is inconsistent
with current practice in the major entitlement programs and
could cause severe problems where the spouse of a signatory to
an affidavit of support becomes separated or divorced from the
sponsor.
III. Deters individuals from becoming sponsors
We also object to section 632's requirement that a sponsor
earn more than 200% of the Federal poverty income guideline to
be eligible to execute an affidavit of support for a family
member. The 200% income requirement constitutes nothing less
than ``class warfare,'' and tells the world that immigration is
only for the wealthy. This would require that a sponsor with a
family of four maintain an income above $35,420 to qualify as a
sponsor,\83\ and mean that 91 million people in America could
not sponsor a family member for immigration.\84\ The
requirement is unnecessary since current law already provides
that an immigrant may not be admitted to the United States
unless he or she can prove that they are unlikely to become a
public charge.\85\
\83\ Current Population Survey (March 1994 Supplement) from the
U.S. Bureau of the Census. Poverty level determined by the U.S.
Department of Labor.
\84\ Anderson Analysis supra note 39 at 16.
\85\ 8 U.S.C. 1182 (a)(4). Nearly all incoming immigrants quickly
support themselves, and do not have to rely on the help of their
sponsors. According to a 1995 study by the Urban Institute, 93.4
percent of foreign born in America survive without public assistance.
See Setting the Record, supra note 38.
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Section 632 also requires that the sponsor be the
petitioner and prevents organizations from sponsoring
individuals. Since the bill unilaterally eliminates whole
categories of family reunification, this would preclude U.S.
citizens from sponsoring all but their ``nuclear family'' as
immigrants. Under this harsh and nonsensical provision a child
would be precluded from sponsoring his or her stepparents or
grandparents; an immigrant spouse would be unable to sponsor
his or her brothers and sisters; and a church could not sponsor
a parishioner's child. The fact that these relatives were
otherwise fully eligible to immigrate to the United States
would be of no avail.
IV. Unreasonable requirements of paying off benefits before
naturalization
We also oppose section 632(c)'s requirement that sponsored
immigrants ``pay off'' certain benefits that they may have
received before they are permitted to become naturalized U.S.
citizens. This would deny citizenship simply because a person
temporarily fell on hard times. Under this provision an
immigrant who, as a child, received school lunch benefits would
be obligated to pay back those benefits before becoming a
naturalized U.S. citizen.
We are also troubled by Section 632's requirement that a
family-based immigrant's sponsor notify the government within
thirty days of any time he or she changes residences.\86\ This
burdensome provision would necessitate the creation of a
recordkeeping bureaucracy at the state and Federal level to
monitor and penalize U.S. citizens or lawful permanent
residents who have sponsored the immigration of a close family
member.
\86\ H.R. 2202, Sec. 632.
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V. Denying benefits to legal permanent residents and citizens based on
parent's citizenship
We are also troubled by language in section 607 which
precludes the provision of any benefit (even to U.S. citizens)
if that benefit is being administered by someone who is not
lawfully present in the United States. Under this provision, a
child who is a U.S. citizen would not be able to receive food
stamps or housing assistance simply because his or her parent
is not lawfully present in the United States. This provision is
blatantly disrespectful of an individual's 14th Amendment
citizenship and equal protection rights, and could impose a
``caste'' system on innocent children.
VI. Unrealistic requirements for hospital reimbursement
Section 604 provides state and local governments with
reimbursements of emergency medical services provided to
undocumented aliens. Although we support the goal of
reimbursement, we are concerned that language denying
reimbursement unless the identity and immigration status of the
individual has been verified with the INS. The INS does not
have a data base listing illegal immigrants nor does it have a
database that lists all U.S. citizens, making verification
nearly impossible. The provision would also require that all
hospital personnel become experts in citizenship verification
forms. In addition, because the bill requires each person be
verified, it would create a huge administrative burden for
hospitals. The verification requirement will also keep many ill
aliens away from emergency rooms, raising severe public health
risks.
Conclusion
We believe it is imperative that the Congress pass
legislation increasing enforcement against illegal immigration.
However, reforming immigration does not mean denying asylees'
rights to legitimate due process, drastically capping family
immigrant and refugee admissions, or endangering our public
heath by denying crucial benefits to children. We urge the
Members to reject H.R. 2202 and pass immigration reform that
respects our heritage as a ``nation of immigrants'' and invests
in our country's future.
John Conyers, Jr.
Patricia Schroeder.
Sheila Jackson-Lee.
Howard L. Berman.
Melvin L. Watt.
Zoe Lofgren.
Jerrold Nadler.
Bobby Scott.
Barney Frank.
Jose E. Serrano.
Xavier Becerra.