[House Report 118-47]
[From the U.S. Government Publishing Office]
118th Congress } { Rept. 118-47
HOUSE OF REPRESENTATIVES
1st Session } { Part 1
======================================================================
BORDER SECURITY AND ENFORCEMENT ACT OF 2023
_______
May 5, 2023.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Jordan, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 2640]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 2640) to provide for reform of the asylum system and
protection of the border, having considered the same, reports
favorably thereon with an amendment and recommends that the
bill as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 35
Background and Need for the Legislation.......................... 35
Hearings......................................................... 66
Committee Consideration.......................................... 66
Committee Votes.................................................. 67
Committee Oversight Findings..................................... 89
New Budget Authority and Tax Expenditures........................ 89
Congressional Budget Office Cost Estimate........................ 89
Committee Estimate of Budgetary Effects.......................... 89
Duplication of Federal Programs.................................. 89
Performance Goals and Objectives................................. 89
Advisory on Earmarks............................................. 90
Federal Mandates Statement....................................... 90
Advisory Committee Statement..................................... 90
Applicability to Legislative Branch.............................. 90
Correspondence................................................... 91
Section-by-Section Analysis...................................... 97
Changes in Existing Law Made by the Bill, as Reported............ 107
Minority Views................................................... 264
The amendment is as follows:
Strike all that follows after the enacting clause and insert
the following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Border Security and
Enforcement Act of 2023''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
TITLE I--ASYLUM REFORM AND BORDER PROTECTION
Sec. 101. Short title.
Sec. 102. Safe third country.
Sec. 103. Credible fear interviews.
Sec. 104. Clarification of asylum eligibility.
Sec. 105. Exceptions.
Sec. 106. Employment authorization.
Sec. 107. Asylum fees.
Sec. 108. Rules for determining asylum eligibility.
Sec. 109. Firm resettlement.
Sec. 110. Notice concerning frivolous asylum applications.
Sec. 111. Technical amendments.
Sec. 112. Requirement for procedures relating to certain asylum
applications.
TITLE II--BORDER SAFETY AND MIGRANT PROTECTION
Sec. 201. Short title.
Sec. 202. Inspection of applicants for admission.
Sec. 203. Operational detention facilities.
TITLE III--ENSURING UNITED FAMILIES AT THE BORDER
Sec. 301. Short title.
Sec. 302. Clarification of standards for family detention.
TITLE IV--PROTECTION OF CHILDREN
Sec. 401. Short title.
Sec. 402. Findings.
Sec. 403. Repatriation of unaccompanied alien children.
Sec. 404. Special immigrant juvenile status for immigrants unable to
reunite with either parent.
Sec. 405. Rule of construction.
TITLE V--VISA OVERSTAYS PENALTIES
Sec. 501. Short title.
Sec. 502. Expanded penalties for illegal entry or presence.
TITLE VI--IMMIGRATION PAROLE REFORM
Sec. 601. Short title.
Sec. 602. Immigration parole reform.
Sec. 603. Implementation.
Sec. 604. Cause of action.
Sec. 605. Severability.
TITLE VII--LEGAL WORKFORCE
Sec. 701. Short title.
Sec. 702. Employment eligibility verification process.
Sec. 703. Employment eligibility verification system.
Sec. 704. Recruitment, referral, and continuation of employment.
Sec. 705. Good faith defense.
Sec. 706. Preemption and States' rights.
Sec. 707. Repeal.
Sec. 708. Penalties.
Sec. 709. Fraud and misuse of documents.
Sec. 710. Protection of Social Security Administration programs.
Sec. 711. Fraud prevention.
Sec. 712. Use of employment eligibility verification photo tool.
Sec. 713. Identity authentication employment eligibility verification
pilot programs.
Sec. 714. Inspector General audits.
Sec. 715. Agriculture Workforce Study.
Sec. 716. Repealing regulations.
TITLE I--ASYLUM REFORM AND BORDER PROTECTION
SEC. 101. SHORT TITLE.
This title may be cited as the ``Asylum Reform and Border Protection
Act of 2023''.
SEC. 102. SAFE THIRD COUNTRY.
Section 208(a)(2)(A) of the Immigration and Nationality Act (8 U.S.C.
1158(a)(2)(A)) is amended--
(1) by striking ``if the Attorney General determines'' and
inserting ``if the Attorney General or the Secretary of
Homeland Security determines--'';
(2) by striking ``that the alien may be removed'' and
inserting the following:
``(i) that the alien may be removed'';
(3) by striking ``, pursuant to a bilateral or multilateral
agreement, to'' and inserting ``to'';
(4) by inserting ``or the Secretary, on a case by case
basis,'' before ``finds that'';
(5) by striking the period at the end and inserting ``; or'';
and
(6) by adding at the end the following:
``(ii) that the alien entered, attempted to enter, or arrived
in the United States after transiting through at least one
country outside the alien's country of citizenship,
nationality, or last lawful habitual residence en route to the
United States, unless--
``(I) the alien demonstrates that he or she applied
for protection from persecution or torture in at least
one country outside the alien's country of citizenship,
nationality, or last lawful habitual residence through
which the alien transited en route to the United
States, and the alien received a final judgment denying
the alien protection in each country;
``(II) the alien demonstrates that he or she was a
victim of a severe form of trafficking in which a
commercial sex act was induced by force, fraud, or
coercion, or in which the person induced to perform
such act was under the age of 18 years; or in which the
trafficking included the recruitment, harboring,
transportation, provision, or obtaining of a person for
labor or services through the use of force, fraud, or
coercion for the purpose of subjection to involuntary
servitude, peonage, debt bondage, or slavery, and was
unable to apply for protection from persecution in each
country through which the alien transited en route to
the United States as a result of such severe form of
trafficking; or
``(III) the only countries through which the alien
transited en route to the United States were, at the
time of the transit, not parties to the 1951 United
Nations Convention relating to the Status of Refugees,
the 1967 Protocol Relating to the Status of Refugees,
or the United Nations Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or
Punishment.''.
SEC. 103. CREDIBLE FEAR INTERVIEWS.
Section 235(b)(1)(B)(v) of the Immigration and Nationality Act (8
U.S.C. 1225(b)(1)(B)(v)) is amended by striking ``there is a
significant possibility'' and all that follows, and inserting ``,
taking into account the credibility of the statements made by the alien
in support of the alien's claim, as determined pursuant to section
208(b)(1)(B)(iii), and such other facts as are known to the officer,
the alien more likely than not could establish eligibility for asylum
under section 208, and it is more likely than not that the statements
made by, and on behalf of, the alien in support of the alien's claim
are true.''.
SEC. 104. CLARIFICATION OF ASYLUM ELIGIBILITY.
(a) In General.--Section 208(b)(1)(A) of the Immigration and
Nationality Act (8 U.S.C. 1158(b)(1)(A)) is amended by inserting after
``section 101(a)(42)(A)'' the following: ``(in accordance with the
rules set forth in this section), and is eligible to apply for asylum
under subsection (a)''.
(b) Place of Arrival.--Section 208(a)(1) of the Immigration and
Nationality Act (8 U.S.C. 1158(a)(1)) is amended--
(1) by striking ``or who arrives in the United States
(whether or not at a designated port of arrival and including
an alien who is brought to the United States after having been
interdicted in international or United States waters),''; and
(2) by inserting after ``United States'' the following: ``and
has arrived in the United States at a port of entry (including
an alien who is brought to the United States after having been
interdicted in international or United States waters),''.
SEC. 105. EXCEPTIONS.
Paragraph (2) of section 208(b) of the Immigration and Nationality
Act (8 U.S.C. 1158(b)(2)) is amended to read as follows:
``(2) Exceptions.--
``(A) In general.--Paragraph (1) shall not apply to
an alien if the Secretary of Homeland Security or 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 has been convicted of any
felony under Federal, State, tribal, or local
law;
``(iii) the alien has been convicted of any
misdemeanor offense under Federal, State,
tribal, or local law involving--
``(I) the unlawful possession or use
of an identification document,
authentication feature, or false
identification document (as those terms
and phrases are defined in the
jurisdiction where the conviction
occurred), unless the alien can
establish that the conviction resulted
from circumstances showing that--
``(aa) the document or
feature was presented before
boarding a common carrier;
``(bb) the document or
feature related to the alien's
eligibility to enter the United
States;
``(cc) the alien used the
document or feature to depart a
country wherein the alien has
claimed a fear of persecution;
and
``(dd) the alien claimed a
fear of persecution without
delay upon presenting himself
or herself to an immigration
officer upon arrival at a
United States port of entry;
``(II) the unlawful receipt of a
Federal public benefit (as defined in
section 401(c) of the Personal
Responsibility and Work Opportunity
Reconciliation Act of 1996 (8 U.S.C.
1611(c))), from a Federal entity, or
the unlawful receipt of similar public
benefits from a State, tribal, or local
entity; or
``(III) possession or trafficking of
a controlled substance or controlled
substance paraphernalia, as those
phrases are defined under the law of
the jurisdiction where the conviction
occurred, other than a single offense
involving possession for one's own use
of 30 grams or less of marijuana (as
marijuana is defined under the law of
the jurisdiction where the conviction
occurred);
``(iv) the alien has been convicted of an
offense arising under paragraph (1)(A) or (2)
of section 274(a), or under section 276;
``(v) the alien has been convicted of a
Federal, State, tribal, or local crime that the
Attorney General or Secretary of Homeland
Security knows, or has reason to believe, was
committed in support, promotion, or furtherance
of the activity of a criminal street gang (as
defined under the law of the jurisdiction where
the conviction occurred or in section 521(a) of
title 18, United States Code);
``(vi) the alien has been convicted of an
offense for driving while intoxicated or
impaired, as those terms are defined under the
law of the jurisdiction where the conviction
occurred (including a conviction for driving
while under the influence of or impaired by
alcohol or drugs), without regard to whether
the conviction is classified as a misdemeanor
or felony under Federal, State, tribal, or
local law, in which such intoxicated or
impaired driving was a cause of serious bodily
injury or death of another person;
``(vii) the alien has been convicted of more
than one offense for driving while intoxicated
or impaired, as those terms are defined under
the law of the jurisdiction where the
conviction occurred (including a conviction for
driving while under the influence of or
impaired by alcohol or drugs), without regard
to whether the conviction is classified as a
misdemeanor or felony under Federal, State,
tribal, or local law;
``(viii) the alien has been convicted of a
crime--
``(I) that involves conduct amounting
to a crime of stalking;
``(II) of child abuse, child neglect,
or child abandonment; or
``(III) that involves conduct
amounting to a domestic assault or
battery offense, including--
``(aa) a misdemeanor crime of
domestic violence, as described
in section 921(a)(33) of title
18, United States Code;
``(bb) a crime of domestic
violence, as described in
section 40002(a)(12) of the
Violence Against Women Act of
1994 (34 U.S.C. 12291(a)(12));
or
``(cc) any crime based on
conduct in which the alien
harassed, coerced, intimidated,
voluntarily or recklessly used
(or threatened to use) force or
violence against, or inflicted
physical injury or physical
pain, however slight, upon a
person--
``(AA) who is a
current or former
spouse of the alien;
``(BB) with whom the
alien shares a child;
``(CC) who is
cohabitating with, or
who has cohabitated
with, the alien as a
spouse;
``(DD) who is
similarly situated to a
spouse of the alien
under the domestic or
family violence laws of
the jurisdiction where
the offense occurred;
or
``(EE) who is
protected from that
alien's acts under the
domestic or family
violence laws of the
United States or of any
State, tribal
government, or unit of
local government;
``(ix) the alien has engaged in acts of
battery or extreme cruelty upon a person and
the person--
``(I) is a current or former spouse
of the alien;
``(II) shares a child with the alien;
``(III) cohabitates or has
cohabitated with the alien as a spouse;
``(IV) is similarly situated to a
spouse of the alien under the domestic
or family violence laws of the
jurisdiction where the offense
occurred; or
``(V) is protected from that alien's
acts under the domestic or family
violence laws of the United States or
of any State, tribal government, or
unit of local government;
``(x) the alien, having been convicted by a
final judgment of a particularly serious crime,
constitutes a danger to the community of the
United States;
``(xi) 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;
``(xii) there are reasonable grounds for
regarding the alien as a danger to the security
of the United States;
``(xiii) the alien is described in subclause
(I), (II), (III), (IV), or (VI) of section
212(a)(3)(B)(i) or 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
Secretary of Homeland Security or the Attorney
General determines, in the Secretary's or 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;
``(xiv) the alien was firmly resettled in
another country prior to arriving in the United
States; or
``(xv) there are reasonable grounds for
concluding the alien could avoid persecution by
relocating to another part of the alien's
country of nationality or, in the case of an
alien having no nationality, another part of
the alien's country of last habitual residence.
``(B) Special rules.--
``(i) Particularly serious crime; serious
nonpolitical crime outside the united states.--
``(I) In general.--For purposes of
subparagraph (A)(x), the Attorney
General or Secretary of Homeland
Security, in their discretion, may
determine that a conviction constitutes
a particularly serious crime based on--
``(aa) the nature of the
conviction;
``(bb) the type of sentence
imposed; or
``(cc) the circumstances and
underlying facts of the
conviction.
``(II) Determination.--In making a
determination under subclause (I), the
Attorney General or Secretary of
Homeland Security may consider all
reliable information and is not limited
to facts found by the criminal court or
provided in the underlying record of
conviction.
``(III) Treatment of felonies.--In
making a determination under subclause
(I), an alien who has been convicted of
a felony (as defined under this
section) or an aggravated felony (as
defined under section 101(a)(43)),
shall be considered to have been
convicted of a particularly serious
crime.
``(IV) Interpol red notice.--In
making a determination under
subparagraph (A)(xi), an Interpol Red
Notice may constitute reliable evidence
that the alien has committed a serious
nonpolitical crime outside the United
States.
``(ii) Crimes and exceptions.--
``(I) Driving while intoxicated or
impaired.--A finding under subparagraph
(A)(vi) does not require the Attorney
General or Secretary of Homeland
Security to find the first conviction
for driving while intoxicated or
impaired (including a conviction for
driving while under the influence of or
impaired by alcohol or drugs) as a
predicate offense. The Attorney General
or Secretary of Homeland Security need
only make a factual determination that
the alien previously was convicted for
driving while intoxicated or impaired
as those terms are defined under the
jurisdiction where the conviction
occurred (including a conviction for
driving while under the influence of or
impaired by alcohol or drugs).
``(II) Stalking and other crimes.--In
making a determination under
subparagraph (A)(viii), including
determining the existence of a domestic
relationship between the alien and the
victim, the underlying conduct of the
crime may be considered, and the
Attorney General or Secretary of
Homeland Security is not limited to
facts found by the criminal court or
provided in the underlying record of
conviction.
``(III) Battery or extreme cruelty.--
In making a determination under
subparagraph (A)(ix), the phrase
`battery or extreme cruelty' includes--
``(aa) any act or threatened
act of violence, including any
forceful detention, which
results or threatens to result
in physical or mental injury;
``(bb) psychological or
sexual abuse or exploitation,
including rape, molestation,
incest, or forced prostitution,
shall be considered acts of
violence; and
``(cc) other abusive acts,
including acts that, in and of
themselves, may not initially
appear violent, but that are a
part of an overall pattern of
violence.
``(IV) Exception for victims of
domestic violence.--An alien who was
convicted of an offense described in
clause (viii) or (ix) of subparagraph
(A) is not ineligible for asylum on
that basis if the alien satisfies the
criteria under section 237(a)(7)(A).
``(C) Specific circumstances.--Paragraph (1) shall
not apply to an alien whose claim is based on--
``(i) personal animus or retribution,
including personal animus in which the alleged
persecutor has not targeted, or manifested an
animus against, other members of an alleged
particular social group in addition to the
member who has raised the claim at issue;
``(ii) the applicant's generalized
disapproval of, disagreement with, or
opposition to criminal, terrorist, gang,
guerilla, or other non-state organizations
absent expressive behavior in furtherance of a
discrete cause against such organizations
related to control of a State or expressive
behavior that is antithetical to the State or a
legal unit of the State;
``(iii) the applicant's resistance to
recruitment or coercion by guerrilla, criminal,
gang, terrorist, or other non-state
organizations;
``(iv) the targeting of the applicant for
criminal activity for financial gain based on
wealth or affluence or perceptions of wealth or
affluence;
``(v) the applicant's criminal activity; or
``(vi) the applicant's perceived, past or
present, gang affiliation.
``(D) Definitions and clarifications.--
``(i) Definitions.--For purposes of this
paragraph:
``(I) Felony.--The term `felony'
means--
``(aa) any crime defined as a
felony by the relevant
jurisdiction (Federal, State,
tribal, or local) of
conviction; or
``(bb) any crime punishable
by more than one year of
imprisonment.
``(II) Misdemeanor.--The term
`misdemeanor' means--
``(aa) any crime defined as a
misdemeanor by the relevant
jurisdiction (Federal, State,
tribal, or local) of
conviction; or
``(bb) any crime not
punishable by more than one
year of imprisonment.
``(ii) Clarifications.--
``(I) Construction.--For purposes of
this paragraph, whether any activity or
conviction also may constitute a basis
for removal is immaterial to a
determination of asylum eligibility.
``(II) Attempt, conspiracy, or
solicitation.--For purposes of this
paragraph, all references to a criminal
offense or criminal conviction shall be
deemed to include any attempt,
conspiracy, or solicitation to commit
the offense or any other inchoate form
of the offense.
``(III) Effect of certain orders.--
``(aa) In general.--No order
vacating a conviction,
modifying a sentence,
clarifying a sentence, or
otherwise altering a conviction
or sentence shall have any
effect under this paragraph
unless the Attorney General or
Secretary of Homeland Security
determines that--
``(AA) the court
issuing the order had
jurisdiction and
authority to do so; and
``(BB) the order was
not entered for
rehabilitative purposes
or for purposes of
ameliorating the
immigration
consequences of the
conviction or sentence.
``(bb) Ameliorating
immigration consequences.--For
purposes of item (aa)(BB), the
order shall be presumed to be
for the purpose of ameliorating
immigration consequences if--
``(AA) the order was
entered after the
initiation of any
proceeding to remove
the alien from the
United States; or
``(BB) the alien
moved for the order
more than one year
after the date of the
original order of
conviction or
sentencing, whichever
is later.
``(cc) Authority of
immigration judge.--An
immigration judge is not
limited to consideration only
of material included in any
order vacating a conviction,
modifying a sentence, or
clarifying a sentence to
determine whether such order
should be given any effect
under this paragraph, but may
consider such additional
information as the immigration
judge determines appropriate.
``(E) Additional limitations.--The Secretary of
Homeland Security or the Attorney General may by
regulation establish additional limitations and
conditions, consistent with this section, under which
an alien shall be ineligible for asylum under paragraph
(1).
``(F) No judicial review.--There shall be no judicial
review of a determination of the Secretary of Homeland
Security or the Attorney General under subparagraph
(A)(xiii).''.
SEC. 106. EMPLOYMENT AUTHORIZATION.
Paragraph (2) of section 208(d) of the Immigration and Nationality
Act (8 U.S.C. 1158(d)) is amended to read as follows:
``(2) Employment authorization.--
``(A) Authorization permitted.--An applicant for
asylum is not entitled to employment authorization, but
such authorization may be provided under regulation by
the Secretary of Homeland Security. An applicant who is
not otherwise eligible for employment authorization
shall not be granted such authorization prior to the
date that is 180 days after the date of filing of the
application for asylum.
``(B) Termination.--Each grant of employment
authorization under subparagraph (A), and any renewal
or extension thereof, shall be valid for a period of 6
months, except that such authorization, renewal, or
extension shall terminate prior to the end of such 6
month period as follows:
``(i) Immediately following the denial of an
asylum application by an asylum officer, unless
the case is referred to an immigration judge.
``(ii) 30 days after the date on which an
immigration judge denies an asylum application,
unless the alien timely appeals to the Board of
Immigration Appeals.
``(iii) Immediately following the denial by
the Board of Immigration Appeals of an appeal
of a denial of an asylum application.
``(C) Renewal.--The Secretary of Homeland Security
may not grant, renew, or extend employment
authorization to an alien if the alien was previously
granted employment authorization under subparagraph
(A), and the employment authorization was terminated
pursuant to a circumstance described in subparagraph
(B)(i), (ii), or (iii), unless a Federal court of
appeals remands the alien's case to the Board of
Immigration Appeals.
``(D) Ineligibility.--The Secretary of Homeland
Security may not grant employment authorization to an
alien under this paragraph if the alien--
``(i) is ineligible for asylum under
subsection (b)(2)(A); or
``(ii) entered or attempted to enter the
United States at a place and time other than
lawfully through a United States port of
entry.''.
SEC. 107. ASYLUM FEES.
Paragraph (3) of section 208(d) of the Immigration and Nationality
Act (8 U.S.C. 1158(d)) is amended to read as follows:
``(3) Fees.--
``(A) Application fee.--A fee of not less than $50
for each application for asylum shall be imposed. Such
fee shall not exceed the cost of adjudicating the
application. Such fee shall not apply to an
unaccompanied alien child who files an asylum
application in proceedings under section 240.
``(B) Employment authorization.--A fee may also be
imposed for the consideration of an application for
employment authorization under this section and for
adjustment of status under section 209(b). Such a fee
shall not exceed the cost of adjudicating the
application.
``(C) Payment.--Fees under this paragraph may be
assessed and paid over a period of time or by
installments.
``(D) Rule of construction.--Nothing in this
paragraph shall be construed to limit the authority of
the Attorney General or Secretary of Homeland Security
to set adjudication and naturalization fees in
accordance with section 286(m).''.
SEC. 108. RULES FOR DETERMINING ASYLUM ELIGIBILITY.
Section 208 of the Immigration and Nationality Act (8 U.S.C. 1158) is
amended by adding at the end the following:
``(f) Rules for Determining Asylum Eligibility.--In making a
determination under subsection (b)(1)(A) with respect to whether an
alien is a refugee within the meaning of section 101(a)(42)(A), the
following shall apply:
``(1) Particular social group.--The Secretary of Homeland
Security or the Attorney General shall not determine that an
alien is a member of a particular social group unless the alien
articulates on the record, or provides a basis on the record
for determining, the definition and boundaries of the alleged
particular social group, establishes that the particular social
group exists independently from the alleged persecution, and
establishes that the alien's claim of membership in a
particular social group does not involve--
``(A) past or present criminal activity or
association (including gang membership);
``(B) presence in a country with generalized violence
or a high crime rate;
``(C) being the subject of a recruitment effort by
criminal, terrorist, or persecutory groups;
``(D) the targeting of the applicant for criminal
activity for financial gain based on perceptions of
wealth or affluence;
``(E) interpersonal disputes of which governmental
authorities in the relevant society or region were
unaware or uninvolved;
``(F) private criminal acts of which governmental
authorities in the relevant society or region were
unaware or uninvolved;
``(G) past or present terrorist activity or
association;
``(H) past or present persecutory activity or
association; or
``(I) status as an alien returning from the United
States.
``(2) Political opinion.--The Secretary of Homeland Security
or the Attorney General may not determine that an alien holds a
political opinion with respect to which the alien is subject to
persecution if the political opinion is constituted solely by
generalized disapproval of, disagreement with, or opposition to
criminal, terrorist, gang, guerilla, or other non-state
organizations and does not include expressive behavior in
furtherance of a cause against such organizations related to
efforts by the State to control such organizations or behavior
that is antithetical to or otherwise opposes the ruling legal
entity of the State or a unit thereof.
``(3) Persecution.--The Secretary of Homeland Security or the
Attorney General may not determine that an alien has been
subject to persecution or has a well-founded fear of
persecution based only on--
``(A) the existence of laws or government policies
that are unenforced or infrequently enforced, unless
there is credible evidence that such a law or policy
has been or would be applied to the applicant
personally; or
``(B) the conduct of rogue foreign government
officials acting outside the scope of their official
capacity.
``(4) Discretionary determination.--
``(A) Adverse discretionary factors.--The Secretary
of Homeland Security or the Attorney General may only
grant asylum to an alien if the alien establishes that
he or she warrants a favorable exercise of discretion.
In making such a determination, the Attorney General or
Secretary of Homeland Security shall consider, if
applicable, an alien's use of fraudulent documents to
enter the United States, unless the alien arrived in
the United States by air, sea, or land directly from
the applicant's home country without transiting through
any other country.
``(B) Favorable exercise of discretion not
permitted.--Except as provided in subparagraph (C), the
Attorney General or Secretary of Homeland Security
shall not favorably exercise discretion under this
section for any alien who--
``(i) has accrued more than one year of
unlawful presence in the United States, as
defined in sections 212(a)(9)(B)(ii) and (iii),
prior to filing an application for asylum;
``(ii) at the time the asylum application is
filed with the immigration court or is referred
from the Department of Homeland Security, has--
``(I) failed to timely file (or
timely file a request for an extension
of time to file) any required Federal,
State, or local income tax returns;
``(II) failed to satisfy any
outstanding Federal, State, or local
tax obligations; or
``(III) income that would result in
tax liability under section 1 of the
Internal Revenue Code of 1986 and that
was not reported to the Internal
Revenue Service;
``(iii) has had two or more prior asylum
applications denied for any reason;
``(iv) has withdrawn a prior asylum
application with prejudice or been found to
have abandoned a prior asylum application;
``(v) failed to attend an interview regarding
his or her asylum application with the
Department of Homeland Security, unless the
alien shows by a preponderance of the evidence
that--
``(I) exceptional circumstances
prevented the alien from attending the
interview; or
``(II) the interview notice was not
mailed to the last address provided by
the alien or the alien's representative
and neither the alien nor the alien's
representative received notice of the
interview; or
``(vi) was subject to a final order of
removal, deportation, or exclusion and did not
file a motion to reopen to seek asylum based on
changed country conditions within one year of
the change in country conditions.
``(C) Exceptions.--If one or more of the adverse
discretionary factors set forth in subparagraph (B) are
present, the Attorney General or the Secretary, may,
notwithstanding such subparagraph (B), favorably
exercise discretion under section 208--
``(i) in extraordinary circumstances, such as
those involving national security or foreign
policy considerations; or
``(ii) if the alien, by clear and convincing
evidence, demonstrates that the denial of the
application for asylum would result in
exceptional and extremely unusual hardship to
the alien.
``(5) Limitation.--If the Secretary or the Attorney General
determines that an alien fails to satisfy the requirement under
paragraph (1), the alien may not be granted asylum based on
membership in a particular social group, and may not appeal the
determination of the Secretary or Attorney General, as
applicable. A determination under this paragraph shall not
serve as the basis for any motion to reopen or reconsider an
application for asylum or withholding of removal for any
reason, including a claim of ineffective assistance of counsel,
unless the alien complies with the procedural requirements for
such a motion and demonstrates that counsel's failure to
define, or provide a basis for defining, a formulation of a
particular social group was both not a strategic choice and
constituted egregious conduct.
``(6) Stereotypes.--Evidence offered in support of an
application for asylum that promotes cultural stereotypes about
a country, its inhabitants, or an alleged persecutor, including
stereotypes based on race, religion, nationality, or gender,
shall not be admissible in adjudicating that application,
except that evidence that an alleged persecutor holds
stereotypical views of the applicant shall be admissible.
``(7) Definitions.--In this section:
``(A) The term `membership in a particular social
group' means membership in a group that is--
``(i) composed of members who share a common
immutable characteristic;
``(ii) defined with particularity; and
``(iii) socially distinct within the society
in question.
``(B) The term `political opinion' means an ideal or
conviction in support of the furtherance of a discrete
cause related to political control of a state or a unit
thereof.
``(C) The term `persecution' means the infliction of
a severe level of harm constituting an exigent threat
by the government of a country or by persons or an
organization that the government was unable or
unwilling to control. Such term does not include--
``(i) generalized harm or violence that
arises out of civil, criminal, or military
strife in a country;
``(ii) all treatment that the United States
regards as unfair, offensive, unjust, unlawful,
or unconstitutional;
``(iii) intermittent harassment, including
brief detentions;
``(iv) threats with no actual effort to carry
out the threats, except that particularized
threats of severe harm of an immediate and
menacing nature made by an identified entity
may constitute persecution; or
``(v) non-severe economic harm or property
damage.''.
SEC. 109. FIRM RESETTLEMENT.
Section 208 of the Immigration and Nationality Act (8 U.S.C. 1158),
as amended by this Act, is further amended by adding at the end the
following:
``(g) Firm Resettlement.--In determining whether an alien was firmly
resettled in another country prior to arriving in the United States
under subsection (b)(2)(A)(xiv), the following shall apply:
``(1) In general.--An alien shall be considered to have
firmly resettled in another country if, after the events giving
rise to the alien's asylum claim--
``(A) the alien resided in a country through which
the alien transited prior to arriving in or entering
the United States and--
``(i) received or was eligible for any
permanent legal immigration status in that
country;
``(ii) resided in such a country with any
non-permanent but indefinitely renewable legal
immigration status (including asylee, refugee,
or similar status, but excluding status of a
tourist); or
``(iii) resided in such a country and could
have applied for and obtained an immigration
status described in clause (ii);
``(B) the alien physically resided voluntarily, and
without continuing to suffer persecution or torture, in
any one country for one year or more after departing
his country of nationality or last habitual residence
and prior to arrival in or entry into the United
States, except for any time spent in Mexico by an alien
who is not a native or citizen of Mexico solely as a
direct result of being returned to Mexico pursuant to
section 235(b)(3) or of being subject to metering; or
``(C) the alien is a citizen of a country other than
the country in which the alien alleges a fear of
persecution, or was a citizen of such a country in the
case of an alien who renounces such citizenship, and
the alien was present in that country after departing
his country of nationality or last habitual residence
and prior to arrival in or entry into the United
States;
``(2) Burden of proof.--If an immigration judge determines
that an alien has firmly resettled in another country under
paragraph (1), the alien shall bear the burden of proving the
bar does not apply.
``(3) Firm resettlement of parent.--An alien shall be
presumed to have been firmly resettled in another country if
the alien's parent was firmly resettled in another country, the
parent's resettlement occurred before the alien turned 18 years
of age, and the alien resided with such parent at the time of
the firm resettlement, unless the alien establishes that he or
she could not have derived any permanent legal immigration
status or any non-permanent but indefinitely renewable legal
immigration status (including asylum, refugee, or similar
status, but excluding status of a tourist) from the alien's
parent.''.
SEC. 110. NOTICE CONCERNING FRIVOLOUS ASYLUM APPLICATIONS.
(a) In General.--Section 208(d)(4) of the Immigration and Nationality
Act (8 U.S.C. 1158(d)(4)) is amended--
(1) in the matter preceding subparagraph (A), by inserting
``the Secretary of Homeland Security or'' before ``the Attorney
General'';
(2) in subparagraph (A), by striking ``and of the
consequences, under paragraph (6), of knowingly filing a
frivolous application for asylum; and'' and inserting a
semicolon;
(3) in subparagraph (B), by striking the period and inserting
``; and''; and
(4) by adding at the end the following:
``(C) ensure that a written warning appears on the
asylum application advising the alien of the
consequences of filing a frivolous application and
serving as notice to the alien of the consequence of
filing a frivolous application.''.
(b) Conforming Amendment.--Section 208(d)(6) of the Immigration and
Nationality Act (8 U.S.C. 1158(d)(6)) is amended by striking ``If the''
and all that follows and inserting:
``(A) In general.--If the Secretary of Homeland
Security or 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)(C), the alien shall be permanently
ineligible for any benefits under this chapter,
effective as the date of the final determination of
such an application.
``(B) Criteria.--An application is frivolous if the
Secretary of Homeland Security or the Attorney General
determines, consistent with subparagraph (C), that--
``(i) it is so insufficient in substance that
it is clear that the applicant knowingly filed
the application solely or in part to delay
removal from the United States, to seek
employment authorization as an applicant for
asylum pursuant to regulations issued pursuant
to paragraph (2), or to seek issuance of a
Notice to Appear in order to pursue
Cancellation of Removal under section 240A(b);
or
``(ii) any of the material elements are
knowingly fabricated.
``(C) Sufficient opportunity to clarify.--In
determining that an application is frivolous, the
Secretary or the Attorney General, must be satisfied
that the applicant, during the course of the
proceedings, has had sufficient opportunity to clarify
any discrepancies or implausible aspects of the claim.
``(D) Withholding of removal not precluded.--For
purposes of this section, a finding that an alien filed
a frivolous asylum application shall not preclude the
alien from seeking withholding of removal under section
241(b)(3) or protection pursuant to the Convention
Against Torture.''.
SEC. 111. TECHNICAL AMENDMENTS.
Section 208 of the Immigration and Nationality Act (8 U.S.C. 1158) is
amended--
(1) in subsection (a)--
(A) in paragraph (2)(D), by inserting ``Secretary of
Homeland Security or the'' before ``Attorney General'';
and
(B) in paragraph (3), by inserting ``Secretary of
Homeland Security or the'' before ``Attorney General'';
(2) in subsection (c)--
(A) in paragraph (1), by striking ``Attorney
General'' each place such term appears and inserting
``Secretary of Homeland Security'';
(B) in paragraph (2), in the matter preceding
subparagraph (A), by inserting ``Secretary of Homeland
Security or the'' before ``Attorney General''; and
(C) in paragraph (3), by inserting ``Secretary of
Homeland Security or the'' before ``Attorney General'';
and
(3) in subsection (d)--
(A) in paragraph (1), by inserting ``Secretary of
Homeland Security or the'' before ``Attorney General''
each place such term appears; and
(B) in paragraph (5)--
(i) in subparagraph (A), by striking
``Attorney General'' and inserting ``Secretary
of Homeland Security''; and
(ii) in subparagraph (B), by inserting
``Secretary of Homeland Security or the''
before ``Attorney General''.
SEC. 112. REQUIREMENT FOR PROCEDURES RELATING TO CERTAIN ASYLUM
APPLICATIONS.
(a) In General.--Not later than 30 days after the date of the
enactment of this Act, the Attorney General shall establish procedures
to expedite the adjudication of asylum applications for aliens--
(1) who are subject to removal proceedings under section 240
of the Immigration and Nationality Act (8 U.S.C. 1229a); and
(2) who are nationals of a Western Hemisphere country
sanctioned by the United States, as described in subsection
(b), as of January 1, 2023.
(b) Western Hemisphere Country Sanctioned by the United States
Described.--Subsection (a) shall apply only to an asylum application
filed by an alien who is a national of a Western Hemisphere country
subject to sanctions pursuant to--
(1) the Cuban Liberty and Democratic Solidarity (LIBERTAD)
Act of 1996 (22 U.S.C. 6021 note);
(2) the Reinforcing Nicaragua's Adherence to Conditions for
Electoral Reform Act of 2021 or the RENACER Act (50 U.S.C. 1701
note); or
(3) Executive Order 13692 (80 Fed. Reg. 12747; declaring a
national emergency with respect to the situation in Venezuela).
(c) Applicability.--This section shall only apply to an alien who
files an application for asylum after the date of the enactment of this
Act.
TITLE II--BORDER SAFETY AND MIGRANT PROTECTION
SEC. 201. SHORT TITLE.
This title may be cited as the ``Border Safety and Migrant Protection
Act of 2023''.
SEC. 202. INSPECTION OF APPLICANTS FOR ADMISSION.
Section 235 of the Immigration and Nationality Act (8 U.S.C. 1225) is
amended--
(1) in subsection (b)--
(A) in paragraph (1)--
(i) in subparagraph (A)--
(I) in clauses (i) and (ii), by
striking ``section 212(a)(6)(C)''
inserting ``subparagraph (A) or (C) of
section 212(a)(6)''; and
(II) by adding at the end the
following:
``(iv) Ineligibility for parole.--An alien
described in clause (i) or (ii) shall not be
eligible for parole except as expressly
authorized pursuant to section 212(d)(5), or
for parole or release pursuant to section
236(a).''; and
(ii) in subparagraph (B)--
(I) in clause (ii), by striking
``asylum.'' and inserting ``asylum and
shall not be released (including
pursuant to parole or release pursuant
to section 236(a) but excluding as
expressly authorized pursuant to
section 212(d)(5)) other than to be
removed or returned to a country as
described in paragraph (3).''; and
(II) in clause (iii)(IV)--
(aa) in the header by
striking ``detention'' and
inserting ``detention, return,
or removal''; and
(bb) by adding at the end the
following: ``The alien shall
not be released (including
pursuant to parole or release
pursuant to section 236(a) but
excluding as expressly
authorized pursuant to section
212(d)(5)) other than to be
removed or returned to a
country as described in
paragraph (3).'';
(B) in paragraph (2)--
(i) in subparagraph (A)--
(I) by striking ``Subject to
subparagraphs (B) and (C),'' and
inserting ``Subject to subparagraph (B)
and paragraph (3),''; and
(II) by adding at the end the
following: ``The alien shall not be
released (including pursuant to parole
or release pursuant to section 236(a)
but excluding as expressly authorized
pursuant to section 212(d)(5)) other
than to be removed or returned to a
country as described in paragraph
(3).''; and
(ii) by striking subparagraph (C);
(C) by redesignating paragraph (3) as paragraph (5);
and
(D) by inserting after paragraph (2) the following:
``(3) Return to foreign territory contiguous to the united
states.--
``(A) In general.--The Secretary of Homeland Security
may return to a foreign territory contiguous to the
United States any alien arriving on land from that
territory (whether or not at a designated port of
entry) pending a proceeding under section 240 or review
of a determination under subsection
(b)(1)(B)(iii)(III).
``(B) Mandatory return.--If at any time the Secretary
of Homeland Security cannot--
``(i) comply with its obligations to detain
an alien as required under clause (ii) and
(iii)(IV) of subsection (b)(1)(B) and
subsection (b)(2)(A); or
``(ii) remove an alien to a country described
in section 208(a)(2)(A),
the Secretary of Homeland Security shall, without
exception, including pursuant to parole or release
pursuant to section 236(a) but excluding as expressly
authorized pursuant to section 212(d)(5), return to a
foreign territory contiguous to the United States any
alien arriving on land from that territory (whether or
not at a designated port of entry) pending a proceeding
under section 240 or review of a determination under
subsection (b)(1)(B)(iii)(III).
``(4) Enforcement by state attorneys general.--The attorney
general of a State, or other authorized State officer, alleging
a violation of the detention, return, or removal requirements
under paragraph (1), (2), or (3) that affects such State or its
residents, may bring an action against the Secretary of
Homeland Security on behalf of the residents of the State in an
appropriate United States district court to obtain appropriate
injunctive relief.''; and
(2) by adding at the end the following:
``(e) Authority to Prohibit Introduction of Certain Aliens.--If the
Secretary of Homeland Security determines, in his discretion, that the
prohibition of the introduction of aliens who are inadmissible under
subparagraph (A) or (C) of section 212(a)(6) or under section 212(a)(7)
at an international land or maritime border of the United States is
necessary to achieve operational control (as defined in section 2 of
the Secure Fence Act of 2006 (8 U.S.C. 1701 note)) of such border, the
Secretary may prohibit, in whole or in part, the introduction of such
aliens at such border for such period of time as the Secretary
determines is necessary for such purpose.''.
SEC. 203. OPERATIONAL DETENTION FACILITIES.
(a) In General.--Not later than September 30, 2023, the Secretary of
Homeland Security shall take all necessary actions to reopen or restore
all U.S. Immigration and Customs Enforcement detention facilities that
were in operation on January 20, 2021, that subsequently closed or with
respect to which the use was altered, reduced, or discontinued after
January 20, 2021. In carrying out the requirement under this
subsection, the Secretary may use the authority under section
103(a)(11) of the Immigration and Nationality Act (8 U.S.C.
1103(a)(11)).
(b) Specific Facilities.--The requirement under subsection (a) shall
include at a minimum, reopening, or restoring, the following
facilities:
(1) Irwin County Detention Center in Georgia.
(2) C. Carlos Carreiro Immigration Detention Center in
Bristol County, Massachusetts.
(3) Etowah County Detention Center in Gadsden, Alabama.
(4) Glades County Detention Center in Moore Haven, Florida.
(5) South Texas Family Residential Center.
(c) Exception.--
(1) In general.--Except as provided in paragraphs (2) and
(3), the Secretary of Homeland Security is authorized to obtain
equivalent capacity for detention facilities at locations other
than those listed in subsection (b).
(2) Limitation.--The Secretary may not take action under
paragraph (1) unless the capacity obtained would result in a
reduction of time and cost relative to the cost and time
otherwise required to obtain such capacity.
(3) South texas family residential center.--The exception
under paragraph (1) shall not apply to the South Texas Family
Residential Center. The Secretary shall take all necessary
steps to modify and operate the South Texas Family Residential
Center in the same manner and capability it was operating on
January 20, 2021.
(d) Periodic Report.--Not later than 90 days after the date of
enactment of this Act, and every 90 days thereafter until September 30,
2027, the Secretary of Homeland Security shall submit to the
appropriate congressional committees a detailed plan for and a status
report on--
(1) compliance with the deadline under subsection (a);
(2) the increase in detention capabilities required by this
section--
(A) for the 90 day period immediately preceding the
date such report is submitted; and
(B) for the period beginning on the first day of the
fiscal year during which the report is submitted, and
ending on the date such report is submitted;
(3) the number of detention beds that were used and the
number of available detention beds that were not used during--
(A) the 90 day period immediately preceding the date
such report is submitted; and
(B) the period beginning on the first day of the
fiscal year during which the report is submitted, and
ending on the date such report is submitted;
(4) the number of aliens released due to a lack of available
detention beds; and
(5) the resources the Department of Homeland Security needs
in order to comply with the requirements under this section.
(e) Notification.--The Secretary of Homeland Security shall notify
Congress, and include with such notification a detailed description of
the resources the Department of Homeland Security needs in order to
detain all aliens whose detention is mandatory or nondiscretionary
under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.)--
(1) not later than 5 days after all U.S. Immigration and
Customs Enforcement detention facilities reach 90 percent of
capacity;
(2) not later than 5 days after all U.S. Immigration and
Customs Enforcement detention facilities reach 95 percent of
capacity; and
(3) not later than 5 days after all U.S. Immigration and
Customs Enforcement detention facilities reach full capacity.
(f) Appropriate Congressional Committees.--The term ``appropriate
congressional committees'' means--
(1) the Committee on the Judiciary of the House of
Representatives;
(2) the Committee on Appropriations of the House of
Representatives;
(3) the Committee on the Judiciary of the Senate; and
(4) the Committee on Appropriations of the Senate.
TITLE III--ENSURING UNITED FAMILIES AT THE BORDER
SEC. 301. SHORT TITLE.
This title may be cited as the ``Ensuring United Families at the
Border Act''.
SEC. 302. CLARIFICATION OF STANDARDS FOR FAMILY DETENTION.
(a) In General.--Section 235 of the William Wilberforce Trafficking
Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232) is
amended by adding at the end the following:
``(j) Construction.--
``(1) In general.--Notwithstanding any other provision of
law, judicial determination, consent decree, or settlement
agreement, the detention of any alien child who is not an
unaccompanied alien child shall be governed by sections 217,
235, 236, and 241 of the Immigration and Nationality Act (8
U.S.C. 1187, 1225, 1226, and 1231). There is no presumption
that an alien child who is not an unaccompanied alien child
should not be detained.
``(2) Family detention.--The Secretary of Homeland Security
shall--
``(A) maintain the care and custody of an alien,
during the period during which the charges described in
clause (i) are pending, who--
``(i) is charged only with a misdemeanor
offense under section 275(a) of the Immigration
and Nationality Act (8 U.S.C. 1325(a)); and
``(ii) entered the United States with the
alien's child who has not attained 18 years of
age; and
``(B) detain the alien with the alien's child.''.
(b) Sense of Congress.--It is the sense of Congress that the
amendments in this section to section 235 of the William Wilberforce
Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S.C.
1232) are intended to satisfy the requirements of the Settlement
Agreement in Flores v. Meese, No. 85-4544 (C.D. Cal), as approved by
the court on January 28, 1997, with respect to its interpretation in
Flores v. Johnson, 212 F. Supp. 3d 864 (C.D. Cal. 2015), that the
agreement applies to accompanied minors.
(c) Effective Date.--The amendment made by subsection (a) shall take
effect on the date of the enactment of this Act and shall apply to all
actions that occur before, on, or after the date of the enactment of
this Act.
(d) Preemption of State Licensing Requirements.--Notwithstanding any
other provision of law, judicial determination, consent decree, or
settlement agreement, no State may require that an immigration
detention facility used to detain children who have not attained 18
years of age, or families consisting of one or more of such children
and the parents or legal guardians of such children, that is located in
that State, be licensed by the State or any political subdivision
thereof.
TITLE IV--PROTECTION OF CHILDREN
SEC. 401. SHORT TITLE.
This title may be cited as the ``Protection of Children Act of
2023''.
SEC. 402. FINDINGS.
Congress makes the following findings:
(1) Implementation of the provisions of the Trafficking
Victims Protection Reauthorization Act of 2008 that govern
unaccompanied alien children has incentivized multiple surges
of unaccompanied alien children arriving at the southwest
border in the years since the bill's enactment.
(2) The provisions of the Trafficking Victims Protection
Reauthorization Act of 2008 that govern unaccompanied alien
children treat unaccompanied alien children from countries that
are contiguous to the United States disparately by swiftly
returning them to their home country absent indications of
trafficking or a credible fear of return, but allowing for the
release of unaccompanied alien children from noncontiguous
countries into the interior of the United States, often to
those individuals who paid to smuggle them into the country in
the first place.
(3) The provisions of the Trafficking Victims Protection
Reauthorization Act of 2008 governing unaccompanied alien
children have enriched the cartels, who profit hundreds of
millions of dollars each year by smuggling unaccompanied alien
children to the southwest border, exploiting and sexually
abusing many such unaccompanied alien children on the perilous
journey.
(4) Prior to 2008, the number of unaccompanied alien children
encountered at the southwest border never exceeded 1,000 in a
single year.
(5) The United States is currently in the midst of the worst
crisis of unaccompanied alien children in our nation's history,
with over 350,000 such unaccompanied alien children encountered
at the southwest border since Joe Biden became President.
(6) In 2022, during the Biden Administration, 152,057
unaccompanied alien children were encountered, the most ever in
a single year and an over 400 percent increase compared to the
last full fiscal year of the Trump Administration in which
33,239 unaccompanied alien children were encountered.
(7) The Biden Administration has lost contact with at least
85,000 unaccompanied alien children who entered the United
States since Joe Biden took office.
(8) The Biden Administration dismantled effective safeguards
put in place by the Trump Administration that protected
unaccompanied alien children from being abused by criminals or
exploited for illegal and dangerous child labor.
(9) A recent New York Times investigation found that
unaccompanied alien children are being exploited in the labor
market and ``are ending up in some of the most punishing jobs
in the country.''
(10) The Times investigation found unaccompanied alien
children, ``under intense pressure to earn money'' in order to
``send cash back to their families while often being in debt to
their sponsors for smuggling fees, rent, and living expenses,''
feared ``that they had become trapped in circumstances they
never could have imagined.''
(11) The Biden Administration's Department of Health and
Human Services Secretary Xavier Becerra compared placing
unaccompanied alien children with sponsors, to widgets in an
assembly line, stating that, ``If Henry Ford had seen this in
his plant, he would have never become famous and rich. This is
not the way you do an assembly line.''
(12) Department of Health and Human Services employees
working under Secretary Xavier Becerra's leadership penned a
July 2021 memorandum expressing serious concern that ``labor
trafficking was increasing'' and that the agency had become
``one that rewards individuals for making quick releases, and
not one that rewards individuals for preventing unsafe
releases.''
(13) Despite this, Secretary Xavier Becerra pressured then-
Director of the Office of Refugee Resettlement Cindy Huang to
prioritize releases of unaccompanied alien children over
ensuring their safety, telling her ``if she could not increase
the number of discharges he would find someone who could'' and
then-Director Huang resigned one month later.
(14) In June 2014, the Obama-Biden Administration requested
legal authority to exercise discretion in returning and
removing unaccompanied alien children from non-contiguous
countries back to their home countries.
(15) In August 2014, the House of Representatives passed H.R.
5320, which included the Protection of Children Act.
(16) The Protection of Children Act of 2023 ends the
disparate policies of the Trafficking Victims Protection
Reauthorization Act of 2008 by ensuring the swift return of all
unaccompanied alien children to their country of origin if they
are not victims of trafficking and do not have a fear of
return.
SEC. 403. REPATRIATION OF UNACCOMPANIED ALIEN CHILDREN.
(a) In General.--Section 235 of the William Wilberforce Trafficking
Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232) is
amended--
(1) in subsection (a)--
(A) in paragraph (2)--
(i) by amending the heading to read as
follows: ``Rules for unaccompanied alien
children.--'';
(ii) in subparagraph (A)--
(I) in the matter preceding clause
(i), by striking ``who is a national or
habitual resident of a country that is
contiguous with the United States'';
(II) in clause (i), by inserting
``and'' at the end;
(III) in clause (ii), by striking ``;
and'' and inserting a period; and
(IV) by striking clause (iii); and
(iii) in subparagraph (B)--
(I) in the matter preceding clause
(i), by striking ``(8 U.S.C. 1101 et
seq.) may--'' and inserting ``(8 U.S.C.
1101 et seq.)--'';
(II) in clause (i), by inserting
before ``permit such child to
withdraw'' the following: ``may''; and
(III) in clause (ii), by inserting
before ``return such child'' the
following: ``shall''; and
(B) in paragraph (5)(D)--
(i) in the matter preceding clause (i), by
striking ``, except for an unaccompanied alien
child from a contiguous country subject to
exceptions under subsection (a)(2),'' and
inserting ``who does not meet the criteria
listed in paragraph (2)(A)''; and
(ii) in clause (i), by inserting before the
semicolon at the end the following: ``, which
shall include a hearing before an immigration
judge not later than 14 days after being
screened under paragraph (4)'';
(2) in subsection (b)--
(A) in paragraph (2)--
(i) in subparagraph (A), by inserting before
the semicolon the following: ``believed not to
meet the criteria listed in subsection
(a)(2)(A)''; and
(ii) in subparagraph (B), by inserting before
the period the following: ``and does not meet
the criteria listed in subsection (a)(2)(A)'';
and
(B) in paragraph (3), by striking ``an unaccompanied
alien child in custody shall'' and all that follows,
and inserting the following: ``an unaccompanied alien
child in custody--
``(A) in the case of a child who does not meet the
criteria listed in subsection (a)(2)(A), shall transfer
the custody of such child to the Secretary of Health
and Human Services not later than 30 days after
determining that such child is an unaccompanied alien
child who does not meet such criteria; or
``(B) in the case of a child who meets the criteria
listed in subsection (a)(2)(A), may transfer the
custody of such child to the Secretary of Health and
Human Services after determining that such child is an
unaccompanied alien child who meets such criteria.'';
and
(3) in subsection (c)--
(A) in paragraph (3), by inserting at the end the
following:
``(D) Information about individuals with whom
children are placed.--
``(i) Information to be provided to homeland
security.--Before placing a child with an
individual, the Secretary of Health and Human
Services shall provide to the Secretary of
Homeland Security, regarding the individual
with whom the child will be placed, information
on--
``(I) the name of the individual;
``(II) the social security number of
the individual;
``(III) the date of birth of the
individual;
``(IV) the location of the
individual's residence where the child
will be placed;
``(V) the immigration status of the
individual, if known; and
``(VI) contact information for the
individual.
``(ii) Activities of the secretary of
homeland security.--Not later than 30 days
after receiving the information listed in
clause (i), the Secretary of Homeland Security,
upon determining that an individual with whom a
child is placed is unlawfully present in the
United States and not in removal proceedings
pursuant to chapter 4 of title II of the
Immigration and Nationality Act (8 U.S.C. 1221
et seq.), shall initiate such removal
proceedings.''; and
(B) in paragraph (5)--
(i) by inserting after ``to the greatest
extent practicable'' the following: ``(at no
expense to the Government)''; and
(ii) by striking ``have counsel to represent
them'' and inserting ``have access to counsel
to represent them''.
(b) Effective Date.--The amendments made by this section shall apply
to any unaccompanied alien child apprehended on or after the date that
is 30 days after the date of enactment of this Act.
SEC. 404. SPECIAL IMMIGRANT JUVENILE STATUS FOR IMMIGRANTS UNABLE TO
REUNITE WITH EITHER PARENT.
Section 101(a)(27)(J) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(27)(J)) is amended--
(1) in clause (i), by striking ``, and whose reunification
with 1 or both of the immigrant's parents is not viable due to
abuse, neglect, abandonment, or a similar basis found under
State law''; and
(2) in clause (iii)--
(A) in subclause (I), by striking ``and'' at the end;
(B) in subclause (II), by inserting ``and'' after the
semicolon; and
(C) by adding at the end the following:
``(III) an alien may not be granted
special immigrant status under this
subparagraph if the alien's
reunification with any one parent or
legal guardian is not precluded by
abuse, neglect, abandonment, or any
similar cause under State law;''.
SEC. 405. RULE OF CONSTRUCTION.
Nothing in this title shall be construed to limit the following
procedures or practices relating to an unaccompanied alien child (as
defined in section 462(g)(2) of the Homeland Security Act of 2002 (6
U.S.C. 279(g)(2))):
(1) Screening of such a child for a credible fear of return
to his or her country of origin.
(2) Screening of such a child to determine whether he or she
was a victim of trafficking.
(3) Department of Health and Human Services policy in effect
on the date of the enactment of this Act requiring a home study
for such a child if he or she is under 12 years of age.
TITLE V--VISA OVERSTAYS PENALTIES
SEC. 501. SHORT TITLE.
This title may be cited as the ``Visa Overstays Penalties Act''.
SEC. 502. EXPANDED PENALTIES FOR ILLEGAL ENTRY OR PRESENCE.
Section 275 of the Immigration and Nationality Act (8 U.S.C. 1325) is
amended--
(1) in subsection (a) by inserting after ``for a subsequent
commission of any such offense'' the following: ``or if the
alien was previously convicted of an offense under subsection
(e)(2)(A)'';
(2) in subsection (b)--
(A) in paragraph (1), by striking ``at least $50 and
not more than $250'' and inserting ``not less than $500
and not more than $1,000''; and
(B) in paragraph (2), by inserting after ``in the
case of an alien who has been previously subject to a
civil penalty under this subsection'' the following:
``or subsection (e)(2)(B)''; and
(3) by adding at the end the following:
``(e) Visa Overstays.--
``(1) In general.--An alien who was admitted as a
nonimmigrant has violated this paragraph if the alien, for an
aggregate of 10 days or more, has failed--
``(A) to maintain the nonimmigrant status in which
the alien was admitted, or to which it was changed
under section 248, including complying with the period
of stay authorized by the Secretary of Homeland
Security in connection with such status; or
``(B) to comply otherwise with the conditions of such
nonimmigrant status.
``(2) Penalties.--An alien who has violated paragraph (1)--
``(A) shall--
``(i) for the first commission of such a
violation, be fined under title 18, United
States Code, or imprisoned not more than 6
months, or both; and
``(ii) for a subsequent commission of such a
violation, or if the alien was previously
convicted of an offense under subsection (a),
be fined under such title 18, or imprisoned not
more than 2 years, or both; and
``(B) in addition to, and not in lieu of, any penalty
under subparagraph (A) and any other criminal or civil
penalties that may be imposed, shall be subject to a
civil penalty of--
``(i) not less than $500 and not more than
$1,000 for each violation; or
``(ii) twice the amount specified in clause
(i), in the case of an alien who has been
previously subject to a civil penalty under
this subparagraph or subsection (b).''.
TITLE VI--IMMIGRATION PAROLE REFORM
SEC. 601. SHORT TITLE.
This title may be cited as the ``Immigration Parole Reform Act of
2023''.
SEC. 602. IMMIGRATION PAROLE REFORM.
Section 212(d)(5) of the Immigration and Nationality Act (8 U.S.C.
1182(d)(5)) is amended to read as follows:
``(5)(A) Except as provided in subparagraphs (B) and (C) and section
214(f), the Secretary of Homeland Security, in the discretion of the
Secretary, may temporarily parole into the United States any alien
applying for admission to the United States who is not present in the
United States, under such conditions as the Secretary may prescribe, on
a case-by-case basis, and not according to eligibility criteria
describing an entire class of potential parole recipients, for urgent
humanitarian reasons or significant public benefit. Parole granted
under this subparagraph may not be regarded as an admission of the
alien. When the purposes of such parole have been served in the opinion
of the Secretary, the alien shall immediately return or be returned to
the custody from which the alien was paroled. After such return, the
case of the alien shall be dealt with in the same manner as the case of
any other applicant for admission to the United States.
``(B) The Secretary of Homeland Security may grant parole to any
alien who--
``(i) is present in the United States without lawful
immigration status;
``(ii) is the beneficiary of an approved petition under
section 203(a);
``(iii) is not otherwise inadmissible or removable; and
``(iv) is the spouse or child of a member of the Armed Forces
serving on active duty.
``(C) The Secretary of Homeland Security may grant parole to any
alien--
``(i) who is a national of the Republic of Cuba and is living
in the Republic of Cuba;
``(ii) who is the beneficiary of an approved petition under
section 203(a);
``(iii) for whom an immigrant visa is not immediately
available;
``(iv) who meets all eligibility requirements for an
immigrant visa;
``(v) who is not otherwise inadmissible; and
``(vi) who is receiving a grant of parole in furtherance of
the commitment of the United States to the minimum level of
annual legal migration of Cuban nationals to the United States
specified in the U.S.-Cuba Joint Communique on Migration, done
at New York September 9, 1994, and reaffirmed in the Cuba-
United States: Joint Statement on Normalization of Migration,
Building on the Agreement of September 9, 1994, done at New
York May 2, 1995.
``(D) The Secretary of Homeland Security may grant parole to an alien
who is returned to a contiguous country under section 235(b)(3) to
allow the alien to attend the alien's immigration hearing. The grant of
parole shall not exceed the time required for the alien to be escorted
to, and attend, the alien's immigration hearing scheduled on the same
calendar day as the grant, and to immediately thereafter be escorted
back to the contiguous country. A grant of parole under this
subparagraph shall not be considered for purposes of determining
whether the alien is inadmissible under this Act.
``(E) For purposes of determining an alien's eligibility for parole
under subparagraph (A), an urgent humanitarian reason shall be limited
to circumstances in which the alien establishes that--
``(i)(I) the alien has a medical emergency; and
``(II)(aa) the alien cannot obtain necessary treatment in the
foreign state in which the alien is residing; or
``(bb) the medical emergency is life-threatening and there is
insufficient time for the alien to be admitted to the United
States through the normal visa process;
``(ii) the alien is the parent or legal guardian of an alien
described in clause (i) and the alien described in clause (i)
is a minor;
``(iii) the alien is needed in the United States in order to
donate an organ or other tissue for transplant and there is
insufficient time for the alien to be admitted to the United
States through the normal visa process;
``(iv) 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 to the United States through the
normal visa process;
``(v) the alien is seeking to attend the funeral of a close
family member and the alien could not arrive in the United
States in time to attend such funeral if the alien were to be
admitted to the United States through the normal visa process;
``(vi) the alien is an adopted child with an urgent medical
condition who is in the legal custody of the petitioner for a
final adoption-related visa and whose medical treatment is
required before the expected award of a final adoption-related
visa; or
``(vii) the alien is a lawful applicant for adjustment of
status under section 245 and is returning to the United States
after temporary travel abroad.
``(F) For purposes of determining an alien's eligibility for parole
under subparagraph (A), a significant public benefit may be determined
to result from the parole of an alien only if--
``(i) the alien has assisted (or will assist, whether
knowingly or not) the United States Government in a law
enforcement matter;
``(ii) the alien's presence is required by the Government in
furtherance of such law enforcement matter; and
``(iii) the alien is inadmissible, does not satisfy the
eligibility requirements for admission as a nonimmigrant, or
there is insufficient time for the alien to be admitted to the
United States through the normal visa process.
``(G) For purposes of determining an alien's eligibility for parole
under subparagraph (A), the term `case-by-case basis' means that the
facts in each individual case are considered and parole is not granted
based on membership in a defined class of aliens to be granted parole.
The fact that aliens are considered for or granted parole one-by-one
and not as a group is not sufficient to establish that the parole
decision is made on a `case-by-case basis'.
``(H) The Secretary of Homeland Security may not use the parole
authority under this paragraph to parole an alien into the United
States for any reason or purpose other than those described in
subparagraphs (B), (C), (D), (E), and (F).
``(I) An alien granted parole may not accept employment, except that
an alien granted parole pursuant to subparagraph (B) or (C) is
authorized to accept employment for the duration of the parole, as
evidenced by an employment authorization document issued by the
Secretary of Homeland Security.
``(J) Parole granted after a departure from the United States shall
not be regarded as an admission of the alien. An alien granted parole,
whether as an initial grant of parole or parole upon reentry into the
United States, is not eligible to adjust status to lawful permanent
residence or for any other immigration benefit if the immigration
status the alien had at the time of departure did not authorize the
alien to adjust status or to be eligible for such benefit.
``(K)(i) Except as provided in clauses (ii) and (iii), parole shall
be granted to an alien under this paragraph for the shorter of--
``(I) a period of sufficient length to accomplish the
activity described in subparagraph (D), (E), or (F) for which
the alien was granted parole; or
``(II) 1 year.
``(ii) Grants of parole pursuant to subparagraph (A) may be extended
once, in the discretion of the Secretary, for an additional period that
is the shorter of--
``(I) the period that is necessary to accomplish the activity
described in subparagraph (E) or (F) for which the alien was
granted parole; or
``(II) 1 year.
``(iii) Aliens who have a pending application to adjust status to
permanent residence under section 245 may request extensions of parole
under this paragraph, in 1-year increments, until the application for
adjustment has been adjudicated. Such parole shall terminate
immediately upon the denial of such adjustment application.
``(L) Not later than 90 days after the last day of each fiscal year,
the Secretary of Homeland Security shall submit to the Committee on the
Judiciary of the Senate and the Committee on the Judiciary of the House
of Representatives and make available to the public, a report--
``(i) identifying the total number of aliens paroled into the
United States under this paragraph during the previous fiscal
year; and
``(ii) containing information and data regarding all aliens
paroled during such fiscal year, including--
``(I) the duration of parole;
``(II) the type of parole; and
``(III) the current status of the aliens so
paroled.''.
SEC. 603. IMPLEMENTATION.
(a) In General.--Except as provided in subsection (b), this Act and
the amendments made by this Act shall take effect on the date that is
30 days after the date of the enactment of this Act.
(b) Exceptions.--Notwithstanding subsection (a), each of the
following exceptions apply:
(1) Any application for parole or advance parole filed by an
alien before the date of the enactment of this Act shall be
adjudicated under the law that was in effect on the date on
which the application was properly filed and any approved
advance parole shall remain valid under the law that was in
effect on the date on which the advance parole was approved.
(2) Section 212(d)(5)(J) of the Immigration and Nationality
Act, as added by section 2, shall take effect on the date of
the enactment of this Act.
(3) Aliens who were paroled into the United States pursuant
to section 212(d)(5)(A) of the Immigration and Nationality Act
(8 U.S.C. 1182(d)(5)(A)) before January 1, 2023, shall continue
to be subject to the terms of parole that were in effect on the
date on which their respective parole was approved.
SEC. 604. CAUSE OF ACTION.
Any person, State, or local government that experiences financial
harm in excess of $1,000 due to a failure of the Federal Government to
lawfully apply the provisions of this Act or the amendments made by
this Act shall have standing to bring a civil action against the
Federal Government in an appropriate district court of the United
States for appropriate relief.
SEC. 605. SEVERABILITY.
If any provision of this Act or any amendment by this Act, or the
application of such provision or amendment to any person or
circumstance, is held to be unconstitutional, the remainder of this Act
and the application of such provision or amendment to any other person
or circumstance shall not be affected.
TITLE VII--LEGAL WORKFORCE
SEC. 701. SHORT TITLE.
This title may be cited as the ``Legal Workforce Act''.
SEC. 702. EMPLOYMENT ELIGIBILITY VERIFICATION PROCESS.
(a) In General.--Section 274A(b) of the Immigration and Nationality
Act (8 U.S.C. 1324a(b)) is amended to read as follows:
``(b) Employment Eligibility Verification Process.--
``(1) New hires, recruitment, and referral.--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 following:
``(A) Attestation after examination of
documentation.--
``(i) Attestation.--During the verification
period (as defined in subparagraph (E)), the
person or entity shall attest, under penalty of
perjury and on a form, including electronic
format, designated or established by the
Secretary by regulation not later than 6 months
after the date of the enactment of the Legal
Workforce Act, that it has verified that the
individual is not an unauthorized alien by--
``(I) obtaining from the individual
the individual's social security
account number or United States
passport number and recording the
number on the form (if the individual
claims to have been issued such a
number), and, if the individual does
not attest to United States nationality
under subparagraph (B), obtaining such
identification or authorization number
established by the Department of
Homeland Security for the alien as the
Secretary of Homeland Security may
specify, and recording such number on
the form; and
``(II) examining--
``(aa) a document relating to
the individual presenting it
described in clause (ii); or
``(bb) a document relating to
the individual presenting it
described in clause (iii) and a
document relating to the
individual presenting it
described in clause (iv).
``(ii) Documents evidencing employment
authorization and establishing identity.--A
document described in this subparagraph is an
individual's--
``(I) unexpired United States
passport or passport card;
``(II) unexpired permanent resident
card that contains a photograph;
``(III) unexpired employment
authorization card that contains a
photograph;
``(IV) in the case of a nonimmigrant
alien authorized to work for a specific
employer incident to status, a foreign
passport with Form I-94 or Form I-94A,
or other documentation as designated by
the Secretary specifying the alien's
nonimmigrant status as long as the
period of status has not yet expired
and the proposed employment is not in
conflict with any restrictions or
limitations identified in the
documentation;
``(V) passport from the Federated
States of Micronesia (FSM) or the
Republic of the Marshall Islands (RMI)
with Form I-94 or Form I-94A, or other
documentation as designated by the
Secretary, indicating nonimmigrant
admission under the Compact of Free
Association Between the United States
and the FSM or RMI; or
``(VI) other document designated by
the Secretary of Homeland Security, if
the document--
``(aa) contains a photograph
of the individual and biometric
identification data from the
individual and such other
personal identifying
information relating to the
individual as the Secretary of
Homeland Security finds, by
regulation, sufficient for
purposes of this clause;
``(bb) is evidence of
authorization of employment in
the United States; and
``(cc) contains security
features to make it resistant
to tampering, counterfeiting,
and fraudulent use.
``(iii) Documents evidencing 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).
``(iv) Documents establishing identity of
individual.--A document described in this
subparagraph is--
``(I) an individual's unexpired State
issued driver's license or
identification card if it contains a
photograph and information such as
name, date of birth, gender, height,
eye color, and address;
``(II) an individual's unexpired U.S.
military identification card;
``(III) an individual's unexpired
Native American tribal identification
document issued by a tribal entity
recognized by the Bureau of Indian
Affairs; or
``(IV) in the case of an individual
under 18 years of age, a parent or
legal guardian's attestation under
penalty of law as to the identity and
age of the individual.
``(v) Authority to prohibit use of certain
documents.--If the Secretary of Homeland
Security finds, by regulation, that any
document described in clause (i), (ii), or
(iii) as establishing employment authorization
or identity does not reliably establish such
authorization or identity or is being used
fraudulently to an unacceptable degree, the
Secretary may prohibit or place conditions on
its use for purposes of this paragraph.
``(vi) Signature.--Such attestation may be
manifested by either a handwritten or
electronic signature.
``(B) Individual attestation of employment
authorization.--During the verification period (as
defined in subparagraph (E)), the individual shall
attest, under penalty of perjury on the form designated
or established for purposes of subparagraph (A), that
the individual is a citizen or national of the United
States, an alien lawfully admitted for permanent
residence, or an alien who is authorized under this Act
or by the Secretary of Homeland Security to be hired,
recruited, or referred for such employment. Such
attestation may be manifested by either a handwritten
or electronic signature. The individual shall also
provide that individual's social security account
number or United States passport number (if the
individual claims to have been issued such a number),
and, if the individual does not attest to United States
nationality under this subparagraph, such
identification or authorization number established by
the Department of Homeland Security for the alien as
the Secretary may specify.
``(C) Retention of verification form and
verification.--
``(i) In general.--After completion of such
form in accordance with subparagraphs (A) and
(B), the person or entity shall--
``(I) retain a paper or electronic
version of the form and make it
available for inspection by officers of
the Department of Homeland Security,
the Department of Justice, or the
Department of Labor during a period
beginning on the date of the recruiting
or referral of the individual, or, in
the case of the hiring of an
individual, the date on which the
verification is completed, and ending--
``(aa) in the case of the
recruiting or referral of an
individual, 3 years after the
date of the recruiting or
referral; and
``(bb) in the case of the
hiring of an individual, the
later of 3 years after the date
the verification is completed
or one year after the date the
individual's employment is
terminated; and
``(II) during the verification period
(as defined in subparagraph (E)), make
an inquiry, as provided in subsection
(d), using the verification system to
seek verification of the identity and
employment eligibility of an
individual.
``(ii) Confirmation.--
``(I) Confirmation received.--If the
person or other entity receives an
appropriate confirmation of an
individual's identity and work
eligibility under the verification
system within the time period
specified, the person or entity shall
record on the form an appropriate code
that is provided under the system and
that indicates a final confirmation of
such identity and work eligibility of
the individual.
``(II) Tentative nonconfirmation
received.--If the person or other
entity receives a tentative
nonconfirmation of an individual's
identity or work eligibility under the
verification system within the time
period specified, the person or entity
shall so inform the individual for whom
the verification is sought. If the
individual does not contest the
nonconfirmation within the time period
specified, the nonconfirmation shall be
considered final. The person or entity
shall then record on the form an
appropriate code which has been
provided under the system to indicate a
final nonconfirmation. If the
individual does contest the
nonconfirmation, the individual shall
utilize the process for secondary
verification provided under subsection
(d). The nonconfirmation will remain
tentative until a final confirmation or
nonconfirmation is provided by the
verification system within the time
period specified. In no case shall an
employer terminate employment of an
individual because of a failure of the
individual to have identity and work
eligibility confirmed under this
section until a nonconfirmation becomes
final. Nothing in this clause shall
apply to a termination of employment
for any reason other than because of
such a failure. In no case shall an
employer rescind the offer of
employment to an individual because of
a failure of the individual to have
identity and work eligibility confirmed
under this subsection until a
nonconfirmation becomes final. Nothing
in this subclause shall apply to a
recission of the offer of employment
for any reason other than because of
such a failure.
``(III) Final confirmation or
nonconfirmation received.--If a final
confirmation or nonconfirmation is
provided by the verification system
regarding an individual, the person or
entity shall record on the form an
appropriate code that is provided under
the system and that indicates a
confirmation or nonconfirmation of
identity and work eligibility of the
individual.
``(IV) Extension of time.--If the
person or other entity in good faith
attempts to make an inquiry during the
time period specified and the
verification system has registered that
not all inquiries were received during
such time, the person or entity may
make an inquiry in the first subsequent
working day in which the verification
system registers that it has received
all inquiries. If the verification
system cannot receive inquiries at all
times during a day, the person or
entity merely has to assert that the
entity attempted to make the inquiry on
that day for the previous sentence to
apply to such an inquiry, and does not
have to provide any additional proof
concerning such inquiry.
``(V) Consequences of
nonconfirmation.--
``(aa) Termination or
notification of continued
employment.--If the person or
other entity has received a
final nonconfirmation regarding
an individual, the person or
entity may terminate employment
of the individual (or decline
to recruit or refer the
individual). If the person or
entity does not terminate
employment of the individual or
proceeds to recruit or refer
the individual, the person or
entity shall notify the
Secretary of Homeland Security
of such fact through the
verification system or in such
other manner as the Secretary
may specify.
``(bb) Failure to notify.--If
the person or entity fails to
provide notice with respect to
an individual as required under
item (aa), the failure is
deemed to constitute a
violation of subsection
(a)(1)(A) with respect to that
individual.
``(VI) Continued employment after
final nonconfirmation.--If the person
or other entity continues to employ (or
to recruit or refer) an individual
after receiving final nonconfirmation,
a rebuttable presumption is created
that the person or entity has violated
subsection (a)(1)(A).
``(D) Effective dates of new procedures.--
``(i) Hiring.--Except as provided in clause
(iii), the provisions of this paragraph shall
apply to a person or other entity hiring an
individual for employment in the United States
as follows:
``(I) With respect to employers
having 10,000 or more employees in the
United States on the date of the
enactment of the Legal Workforce Act,
on the date that is 6 months after the
date of the enactment of such Act.
``(II) With respect to employers
having 500 or more employees in the
United States, but less than 10,000
employees in the United States, on the
date of the enactment of the Legal
Workforce Act, on the date that is 12
months after the date of the enactment
of such Act.
``(III) With respect to employers
having 20 or more employees in the
United States, but less than 500
employees in the United States, on the
date of the enactment of the Legal
Workforce Act, on the date that is 18
months after the date of the enactment
of such Act.
``(IV) With respect to employers
having one or more employees in the
United States, but less than 20
employees in the United States, on the
date of the enactment of the Legal
Workforce Act, on the date that is 24
months after the date of the enactment
of such Act.
``(ii) Recruiting and referring.--Except as
provided in clause (iii), the provisions of
this paragraph shall apply to a person or other
entity recruiting or referring an individual
for employment in the United States on the date
that is 12 months after the date of the
enactment of the Legal Workforce Act.
``(iii) Agricultural labor or services.--With
respect to an employee performing agricultural
labor or services, this paragraph shall not
apply with respect to the verification of the
employee until the date that is 36 months after
the date of the enactment of the Legal
Workforce Act. For purposes of the preceding
sentence, the term `agricultural labor or
services' has the meaning given such term by
the Secretary of Agriculture in regulations and
includes agricultural labor as defined in
section 3121(g) of the Internal Revenue Code of
1986, agriculture as defined in section 3(f) of
the Fair Labor Standards Act of 1938 (29 U.S.C.
203(f)), the handling, planting, drying,
packing, packaging, processing, freezing, or
grading prior to delivery for storage of any
agricultural or horticultural commodity in its
unmanufactured state, all activities required
for the preparation, processing or
manufacturing of a product of agriculture (as
such term is defined in such section 3(f)) for
further distribution, and activities similar to
all the foregoing as they relate to fish or
shellfish facilities. An employee described in
this clause shall not be counted for purposes
of clause (i).
``(iv) Extensions.--
``(I) On request.--Upon request by an
employer having 50 or fewer employees,
the Secretary shall allow a one-time 6-
month extension of the effective date
set out in this subparagraph applicable
to such employer. Such request shall be
made to the Secretary and shall be made
prior to such effective date.
``(II) Following report.--If the
study under section 715 of the Legal
Workforce Act has been submitted in
accordance with such section, the
Secretary of Homeland Security may
extend the effective date set out in
clause (iii) on a one-time basis for 12
months.
``(v) Transition rule.--Subject to paragraph
(4), the following shall apply to a person or
other entity hiring, recruiting, or referring
an individual for employment in the United
States until the effective date or dates
applicable under clauses (i) through (iii):
``(I) This subsection, as in effect
before the enactment of the Legal
Workforce Act.
``(II) Subtitle A of title IV of the
Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (8
U.S.C. 1324a note), as in effect before
the effective date in section 707(c) of
the Legal Workforce Act.
``(III) Any other provision of
Federal law requiring the person or
entity to participate in the E-Verify
Program described in section 403(a) of
the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (8
U.S.C. 1324a note), as in effect before
the effective date in section 707(c) of
the Legal Workforce Act, including
Executive Order 13465 (8 U.S.C. 1324a
note; relating to Government
procurement).
``(E) Verification period defined.--
``(i) In general.--For purposes of this
paragraph:
``(I) In the case of recruitment or
referral, the term `verification
period' means the period ending on the
date recruiting or referring commences.
``(II) In the case of hiring, the
term `verification period' means the
period beginning on the date on which
an offer of employment is extended and
ending on the date that is three
business days after the date of hire,
except as provided in clause (iii). The
offer of employment may be conditioned
in accordance with clause (ii).
``(ii) Job offer may be conditional.--A
person or other entity may offer a prospective
employee an employment position that is
conditioned on final verification of the
identity and employment eligibility of the
employee using the procedures established under
this paragraph.
``(iii) Special rule.--Notwithstanding clause
(i)(II), in the case of an alien who is
authorized for employment and who provides
evidence from the Social Security
Administration that the alien has applied for a
social security account number, the
verification period ends three business days
after the alien receives the social security
account number.
``(2) Reverification for individuals with limited work
authorization.--
``(A) In general.--Except as provided in subparagraph
(B), a person or entity shall make an inquiry, as
provided in subsection (d), using the verification
system to seek reverification of the identity and
employment eligibility of all individuals with a
limited period of work authorization employed by the
person or entity during the three business days after
the date on which the employee's work authorization
expires as follows:
``(i) With respect to employers having 10,000
or more employees in the United States on the
date of the enactment of the Legal Workforce
Act, beginning on the date that is 6 months
after the date of the enactment of such Act.
``(ii) With respect to employers having 500
or more employees in the United States, but
less than 10,000 employees in the United
States, on the date of the enactment of the
Legal Workforce Act, beginning on the date that
is 12 months after the date of the enactment of
such Act.
``(iii) With respect to employers having 20
or more employees in the United States, but
less than 500 employees in the United States,
on the date of the enactment of the Legal
Workforce Act, beginning on the date that is 18
months after the date of the enactment of such
Act.
``(iv) With respect to employers having one
or more employees in the United States, but
less than 20 employees in the United States, on
the date of the enactment of the Legal
Workforce Act, beginning on the date that is 24
months after the date of the enactment of such
Act.
``(B) Agricultural labor or services.--With respect
to an employee performing agricultural labor or
services, or an employee recruited or referred by a
farm labor contractor (as defined in section 3 of the
Migrant and Seasonal Agricultural Worker Protection Act
(29 U.S.C. 1801)), subparagraph (A) shall not apply
with respect to the reverification of the employee
until the date that is 36 months after the date of the
enactment of the Legal Workforce Act. For purposes of
the preceding sentence, the term `agricultural labor or
services' has the meaning given such term by the
Secretary of Agriculture in regulations and includes
agricultural labor as defined in section 3121(g) of the
Internal Revenue Code of 1986, agriculture as defined
in section 3(f) of the Fair Labor Standards Act of 1938
(29 U.S.C. 203(f)), the handling, planting, drying,
packing, packaging, processing, freezing, or grading
prior to delivery for storage of any agricultural or
horticultural commodity in its unmanufactured state,
all activities required for the preparation,
processing, or manufacturing of a product of
agriculture (as such term is defined in such section
3(f)) for further distribution, and activities similar
to all the foregoing as they relate to fish or
shellfish facilities. An employee described in this
subparagraph shall not be counted for purposes of
subparagraph (A).
``(C) Reverification.--Paragraph (1)(C)(ii) shall
apply to reverifications pursuant to this paragraph on
the same basis as it applies to verifications pursuant
to paragraph (1), except that employers shall--
``(i) use a form designated or established by
the Secretary by regulation for purposes of
this paragraph; and
``(ii) retain a paper or electronic version
of the form and make it available for
inspection by officers of the Department of
Homeland Security, the Department of Justice,
or the Department of Labor during the period
beginning on the date the reverification
commences and ending on the date that is the
later of 3 years after the date of such
reverification or 1 year after the date the
individual's employment is terminated.
``(3) Previously hired individuals.--
``(A) On a mandatory basis for certain employees.--
``(i) In general.--Not later than the date
that is 6 months after the date of the
enactment of the Legal Workforce Act, an
employer shall make an inquiry, as provided in
subsection (d), using the verification system
to seek verification of the identity and
employment eligibility of any individual
described in clause (ii) employed by the
employer whose employment eligibility has not
been verified under the E-Verify Program
described in section 403(a) of the Illegal
Immigration Reform and Immigrant Responsibility
Act of 1996 (8 U.S.C. 1324a note).
``(ii) Individuals described.--An individual
described in this clause is any of the
following:
``(I) An employee of any unit of a
Federal, State, or local government.
``(II) An employee who requires a
Federal security clearance working in a
Federal, State, or local government
building, a military base, a nuclear
energy site, a weapons site, or an
airport or other facility that requires
workers to carry a Transportation
Worker Identification Credential
(TWIC).
``(III) An employee assigned to
perform work in the United States under
a Federal contract, except that this
subclause--
``(aa) is not applicable to
individuals who have a
clearance under Homeland
Security Presidential Directive
12 (HSPD 12 clearance), are
administrative or overhead
personnel, or are working
solely on contracts that
provide Commercial Off The
Shelf goods or services as set
forth by the Federal
Acquisition Regulatory Council,
unless they are subject to
verification under subclause
(II); and
``(bb) only applies to
contracts over the simple
acquisition threshold as
defined in section 2.101 of
title 48, Code of Federal
Regulations.
``(B) On a mandatory basis for multiple users of same
social security account number.--In the case of an
employer who is required by this subsection to use the
verification system described in subsection (d), or has
elected voluntarily to use such system, the employer
shall make inquiries to the system in accordance with
the following:
``(i) The Commissioner of Social Security
shall notify annually employees (at the
employee address listed on the Wage and Tax
Statement) who submit a social security account
number to which more than one employer reports
income and for which there is a pattern of
unusual multiple use. The notification letter
shall identify the number of employers to which
income is being reported as well as sufficient
information notifying the employee of the
process to contact the Social Security
Administration Fraud Hotline if the employee
believes the employee's identity may have been
stolen. The notice shall not share information
protected as private, in order to avoid any
recipient of the notice from being in the
position to further commit or begin committing
identity theft.
``(ii) If the person to whom the social
security account number was issued by the
Social Security Administration has been
identified and confirmed by the Commissioner,
and indicates that the social security account
number was used without their knowledge, the
Secretary and the Commissioner shall lock the
social security account number for employment
eligibility verification purposes and shall
notify the employers of the individuals who
wrongfully submitted the social security
account number that the employee may not be
work eligible.
``(iii) Each employer receiving such
notification of an incorrect social security
account number under clause (ii) shall use the
verification system described in subsection (d)
to check the work eligibility status of the
applicable employee within 10 business days of
receipt of the notification.
``(C) On a voluntary basis.--Subject to paragraph
(2), and subparagraphs (A) through (C) of this
paragraph, beginning on the date that is 30 days after
the date of the enactment of the Legal Workforce Act,
an employer may make an inquiry, as provided in
subsection (d), using the verification system to seek
verification of the identity and employment eligibility
of any individual employed by the employer. If an
employer chooses voluntarily to seek verification of
any individual employed by the employer, the employer
shall seek verification of all individuals employed at
the same geographic location or, at the option of the
employer, all individuals employed within the same job
category, as the employee with respect to whom the
employer seeks voluntarily to use the verification
system. An employer's decision about whether or not
voluntarily to seek verification of its current
workforce under this subparagraph may not be considered
by any government agency in any proceeding,
investigation, or review provided for in this Act.
``(D) Verification.--Paragraph (1)(C)(ii) shall apply
to verifications pursuant to this paragraph on the same
basis as it applies to verifications pursuant to
paragraph (1), except that employers shall--
``(i) use a form designated or established by
the Secretary by regulation for purposes of
this paragraph; and
``(ii) retain a paper or electronic version
of the form and make it available for
inspection by officers of the Department of
Homeland Security, the Department of Justice,
or the Department of Labor during the period
beginning on the date the verification
commences and ending on the date that is the
later of 3 years after the date of such
verification or 1 year after the date the
individual's employment is terminated.
``(4) Early compliance.--
``(A) Former e-verify required users, including
federal contractors.--Notwithstanding the deadlines in
paragraphs (1) and (2), beginning on the date of the
enactment of the Legal Workforce Act, the Secretary is
authorized to commence requiring employers required to
participate in the E-Verify Program described in
section 403(a) of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a
note), including employers required to participate in
such program by reason of Federal acquisition laws (and
regulations promulgated under those laws, including the
Federal Acquisition Regulation), to commence compliance
with the requirements of this subsection (and any
additional requirements of such Federal acquisition
laws and regulation) in lieu of any requirement to
participate in the E-Verify Program.
``(B) Former e-verify voluntary users and others
desiring early compliance.--Notwithstanding the
deadlines in paragraphs (1) and (2), beginning on the
date of the enactment of the Legal Workforce Act, the
Secretary shall provide for the voluntary compliance
with the requirements of this subsection by employers
voluntarily electing to participate in the E-Verify
Program described in section 403(a) of the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 (8 U.S.C. 1324a note) before such date, as well as
by other employers seeking voluntary early compliance.
``(5) 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.
``(6) Limitation on use of forms.--A form designated or
established by the Secretary of Homeland Security 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 any other provision of Federal criminal law.
``(7) Good faith compliance.--
``(A) In general.--Except as otherwise provided in
this subsection, a person or entity is considered to
have complied with a requirement of this subsection
notwithstanding a technical or procedural failure to
meet such requirement if there was a good faith attempt
to comply with the requirement.
``(B) Exception if failure to correct after notice.--
Subparagraph (A) shall not apply if--
``(i) the failure is not de minimus;
``(ii) the Secretary of Homeland Security has
explained to the person or entity the basis for
the failure and why it is not de minimus;
``(iii) the person or entity has been
provided a period of not less than 30 calendar
days (beginning after the date of the
explanation) within which to correct the
failure; and
``(iv) the person or entity has not corrected
the failure voluntarily within such period.
``(C) Exception for pattern or practice violators.--
Subparagraph (A) shall not apply to a person or entity
that has engaged or is engaging in a pattern or
practice of violations of subsection (a)(1)(A) or
(a)(2).
``(8) Single extension of deadlines upon certification.--In a
case in which the Secretary of Homeland Security has certified
to the Congress that the employment eligibility verification
system required under subsection (d) will not be fully
operational by the date that is 6 months after the date of the
enactment of the Legal Workforce Act, each deadline established
under this section for an employer to make an inquiry using
such system shall be extended by 6 months. No other extension
of such a deadline shall be made except as authorized under
paragraph (1)(D)(iv).''.
(b) Date of Hire.--Section 274A(h) of the Immigration and Nationality
Act (8 U.S.C. 1324a(h)) is amended by adding at the end the following:
``(4) Definition of date of hire.--As used in this section,
the term `date of hire' means the date of actual commencement
of employment for wages or other remuneration, unless otherwise
specified.''.
SEC. 703. EMPLOYMENT ELIGIBILITY VERIFICATION SYSTEM.
Section 274A(d) of the Immigration and Nationality Act (8 U.S.C.
1324a(d)) is amended to read as follows:
``(d) Employment Eligibility Verification System.--
``(1) In general.--Patterned on the employment eligibility
confirmation system established under section 404 of the
Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (8 U.S.C. 1324a note), the Secretary of Homeland Security
shall establish and administer a verification system through
which the Secretary (or a designee of the Secretary, which may
be a nongovernmental entity)--
``(A) responds to inquiries made by persons at any
time through a toll-free electronic media concerning an
individual's identity and whether the individual is
authorized to be employed; and
``(B) maintains records of the inquiries that were
made, of verifications provided (or not provided), and
of the codes provided to inquirers as evidence of their
compliance with their obligations under this section.
``(2) Initial response.--The verification system shall
provide confirmation or a tentative nonconfirmation of an
individual's identity and employment eligibility within 3
working days of the initial inquiry. If providing confirmation
or tentative nonconfirmation, the verification system shall
provide an appropriate code indicating such confirmation or
such nonconfirmation.
``(3) Secondary confirmation process in case of tentative
nonconfirmation.--In cases of tentative nonconfirmation, the
Secretary shall specify, in consultation with the Commissioner
of Social Security, an available secondary verification process
to confirm the validity of information provided and to provide
a final confirmation or nonconfirmation not later than 10
working days after the date on which the notice of the
tentative nonconfirmation is received by the employee. The
Secretary, in consultation with the Commissioner, may extend
this deadline once on a case-by-case basis for a period of 10
working days, and if the time is extended, shall document such
extension within the verification system. The Secretary, in
consultation with the Commissioner, shall notify the employee
and employer of such extension. The Secretary, in consultation
with the Commissioner, shall create a standard process of such
extension and notification and shall make a description of such
process available to the public. When final confirmation or
nonconfirmation is provided, the verification system shall
provide an appropriate code indicating such confirmation or
nonconfirmation.
``(4) Design and operation of system.--The verification
system shall be designed and operated--
``(A) to maximize its reliability and ease of use by
persons and other entities consistent with insulating
and protecting the privacy and security of the
underlying information;
``(B) to respond to all inquiries made by such
persons and entities on whether individuals are
authorized to be employed and to register all times
when such inquiries are not received;
``(C) with appropriate administrative, technical, and
physical safeguards to prevent unauthorized disclosure
of personal information;
``(D) to have reasonable safeguards against the
system's resulting in unlawful discriminatory practices
based on national origin or citizenship status,
including--
``(i) the selective or unauthorized use of
the system to verify eligibility; or
``(ii) the exclusion of certain individuals
from consideration for employment as a result
of a perceived likelihood that additional
verification will be required, beyond what is
required for most job applicants;
``(E) to maximize the prevention of identity theft
use in the system; and
``(F) to limit the subjects of verification to the
following individuals:
``(i) Individuals hired, referred, or
recruited, in accordance with paragraph (1) or
(4) of subsection (b).
``(ii) Employees and prospective employees,
in accordance with paragraph (1), (2), (3), or
(4) of subsection (b).
``(iii) Individuals seeking to confirm their
own employment eligibility on a voluntary
basis.
``(5) Responsibilities of commissioner of social security.--
As part of the verification system, the Commissioner of Social
Security, in consultation with the Secretary of Homeland
Security (and any designee of the Secretary selected to
establish and administer the verification system), shall
establish a reliable, secure method, which, within the time
periods specified under paragraphs (2) and (3), compares the
name and social security account number provided in an inquiry
against such information maintained by the Commissioner in
order to validate (or not validate) the information provided
regarding an individual whose identity and employment
eligibility must be confirmed, the correspondence of the name
and number, and whether the individual has presented a social
security account number that is not valid for employment. The
Commissioner shall not disclose or release social security
information (other than such confirmation or nonconfirmation)
under the verification system except as provided for in this
section or section 205(c)(2)(I) of the Social Security Act.
``(6) Responsibilities of secretary of homeland security.--As
part of the verification system, the Secretary of Homeland
Security (in consultation with any designee of the Secretary
selected to establish and administer the verification system),
shall establish a reliable, secure method, which, within the
time periods specified under paragraphs (2) and (3), compares
the name and alien identification or authorization number (or
any other information as determined relevant by the Secretary)
which are provided in an inquiry against such information
maintained or accessed by the Secretary in order to validate
(or not validate) the information provided, the correspondence
of the name and number, whether the alien is authorized to be
employed in the United States, or to the extent that the
Secretary determines to be feasible and appropriate, whether
the records available to the Secretary verify the identity or
status of a national of the United States.
``(7) Updating information.--The Commissioner of Social
Security and the Secretary of Homeland Security shall update
their information in a manner that promotes the maximum
accuracy and shall provide a process for the prompt correction
of erroneous information, including instances in which it is
brought to their attention in the secondary verification
process described in paragraph (3).
``(8) Limitation on use of the verification system and any
related systems.--
``(A) No national identification card.--Nothing in
this section shall be construed to authorize, directly
or indirectly, the issuance or use of national
identification cards or the establishment of a national
identification card.
``(B) Critical infrastructure.--The Secretary may
authorize or direct any person or entity responsible
for granting access to, protecting, securing,
operating, administering, or regulating part of the
critical infrastructure (as defined in section 1016(e)
of the Critical Infrastructure Protection Act of 2001
(42 U.S.C. 5195c(e))) to use the verification system to
the extent the Secretary determines that such use will
assist in the protection of the critical
infrastructure.
``(9) Remedies.--If an individual alleges that the individual
would not have been dismissed from a job or would have been
hired for a job but for an error of the verification mechanism,
the individual may seek compensation only through the mechanism
of the Federal Tort Claims Act, and injunctive relief to
correct such error. No class action may be brought under this
paragraph.''.
SEC. 704. RECRUITMENT, REFERRAL, AND CONTINUATION OF EMPLOYMENT.
(a) Additional Changes to Rules for Recruitment, Referral, and
Continuation of Employment.--Section 274A(a) of the Immigration and
Nationality Act (8 U.S.C. 1324a(a)) is amended--
(1) in paragraph (1)(A), by striking ``for a fee'';
(2) in paragraph (1), by amending subparagraph (B) to read as
follows:
``(B) to hire, continue to employ, or to recruit or
refer for employment in the United States an individual
without complying with the requirements of subsection
(b).''; and
(3) in paragraph (2), by striking ``after hiring an alien for
employment in accordance with paragraph (1),'' and inserting
``after complying with paragraph (1),''.
(b) Definition.--Section 274A(h) of the Immigration and Nationality
Act (8 U.S.C. 1324a(h)), as amended by section 2(b) of this Act, is
further amended by adding at the end the following:
``(5) Definition of recruit or refer.--As used in this
section, the term `refer' means the act of sending or directing
a person who is in the United States or transmitting
documentation or information to another, directly or
indirectly, with the intent of obtaining employment in the
United States for such person. Only persons or entities
referring for remuneration (whether on a retainer or
contingency basis) are included in the definition, except that
union hiring halls that refer union members or nonunion
individuals who pay union membership dues are included in the
definition whether or not they receive remuneration, as are
labor service entities or labor service agencies, whether
public, private, for-profit, or nonprofit, that refer,
dispatch, or otherwise facilitate the hiring of laborers for
any period of time by a third party. As used in this section,
the term `recruit' means the act of soliciting a person who is
in the United States, directly or indirectly, and referring the
person to another with the intent of obtaining employment for
that person. Only persons or entities referring for
remuneration (whether on a retainer or contingency basis) are
included in the definition, except that union hiring halls that
refer union members or nonunion individuals who pay union
membership dues are included in this definition whether or not
they receive remuneration, as are labor service entities or
labor service agencies, whether public, private, for-profit, or
nonprofit that recruit, dispatch, or otherwise facilitate the
hiring of laborers for any period of time by a third party.''.
(c) Effective Date.--The amendments made by this section shall take
effect on the date that is 1 year after the date of the enactment of
this Act, except that the amendments made by subsection (a) shall take
effect 6 months after the date of the enactment of this Act insofar as
such amendments relate to continuation of employment.
SEC. 705. GOOD FAITH DEFENSE.
Section 274A(a)(3) of the Immigration and Nationality Act (8 U.S.C.
1324a(a)(3)) is amended to read as follows:
``(3) Good faith defense.--
``(A) Defense.--An employer (or person or entity that
hires, employs, recruits, or refers (as defined in
subsection (h)(5)), or is otherwise obligated to comply
with this section) who establishes that it has complied
in good faith with the requirements of subsection (b)--
``(i) shall not be liable to a job applicant,
an employee, the Federal Government, or a State
or local government, under Federal, State, or
local criminal or civil law for any employment-
related action taken with respect to a job
applicant or employee in good-faith reliance on
information provided through the system
established under subsection (d); and
``(ii) has established compliance with its
obligations under subparagraphs (A) and (B) of
paragraph (1) and subsection (b) absent a
showing by the Secretary of Homeland Security,
by clear and convincing evidence, that the
employer had knowledge that an employee is an
unauthorized alien.
``(B) Mitigation element.--For purposes of
subparagraph (A)(i), if an employer proves by a
preponderance of the evidence that the employer uses a
reasonable, secure, and established technology to
authenticate the identity of the new employee, that
fact shall be taken into account for purposes of
determining good faith use of the system established
under subsection (d).
``(C) Failure to seek and obtain verification.--
Subject to the effective dates and other deadlines
applicable under subsection (b), in the case of a
person or entity in the United States that hires, or
continues to employ, an individual, or recruits or
refers an individual for employment, the following
requirements apply:
``(i) Failure to seek verification.--
``(I) In general.--If the person or
entity has not made an inquiry, under
the mechanism established under
subsection (d) and in accordance with
the timeframes established under
subsection (b), seeking verification of
the identity and work eligibility of
the individual, the defense under
subparagraph (A) shall not be
considered to apply with respect to any
employment, except as provided in
subclause (II).
``(II) Special rule for failure of
verification mechanism.--If such a
person or entity in good faith attempts
to make an inquiry in order to qualify
for the defense under subparagraph (A)
and the verification mechanism has
registered that not all inquiries were
responded to during the relevant time,
the person or entity can make an
inquiry until the end of the first
subsequent working day in which the
verification mechanism registers no
nonresponses and qualify for such
defense.
``(ii) Failure to obtain verification.--If
the person or entity has made the inquiry
described in clause (i)(I) but has not received
an appropriate verification of such identity
and work eligibility under such mechanism
within the time period specified under
subsection (d)(2) after the time the
verification inquiry was received, the defense
under subparagraph (A) shall not be considered
to apply with respect to any employment after
the end of such time period.''.
SEC. 706. PREEMPTION AND STATES' RIGHTS.
Section 274A(h)(2) of the Immigration and Nationality Act (8 U.S.C.
1324a(h)(2)) is amended to read as follows:
``(2) Preemption.--
``(A) Single, national policy.--The provisions of
this section preempt any State or local law, ordinance,
policy, or rule, including any criminal or civil fine
or penalty structure, insofar as they may now or
hereafter relate to the hiring, continued employment,
or status verification for employment eligibility
purposes, of unauthorized aliens.
``(B) State enforcement of federal law.--
``(i) Business licensing.--A State, locality,
municipality, or political subdivision may
exercise its authority over business licensing
and similar laws as a penalty for failure to
use the verification system described in
subsection (d) to verify employment eligibility
when and as required under subsection (b).
``(ii) General rules.--A State, at its own
cost, may enforce the provisions of this
section, but only insofar as such State follows
the Federal regulations implementing this
section, applies the Federal penalty structure
set out in this section, and complies with all
Federal rules and guidance concerning
implementation of this section. Such State may
collect any fines assessed under this section.
An employer may not be subject to enforcement,
including audit and investigation, by both a
Federal agency and a State for the same
violation under this section. Whichever entity,
the Federal agency or the State, is first to
initiate the enforcement action, has the right
of first refusal to proceed with the
enforcement action. The Secretary must provide
copies of all guidance, training, and field
instructions provided to Federal officials
implementing the provisions of this section to
each State.''.
SEC. 707. REPEAL.
(a) In General.--Subtitle A of title IV of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note)
is repealed.
(b) References.--Any reference in any Federal law, Executive order,
rule, regulation, or delegation of authority, or any document of, or
pertaining to, the Department of Homeland Security, Department of
Justice, or the Social Security Administration, to the employment
eligibility confirmation system established under section 404 of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8
U.S.C. 1324a note) is deemed to refer to the employment eligibility
confirmation system established under section 274A(d) of the
Immigration and Nationality Act, as amended by section 3 of this Act.
(c) Effective Date.--This section shall take effect on the date that
is 30 months after the date of the enactment of this Act.
(d) Clerical Amendment.--The table of sections, in section 1(d) of
the Illegal Immigration Reform and Immigrant Responsibility Act of
1996, is amended by striking the items relating to subtitle A of title
IV.
SEC. 708. PENALTIES.
Section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a)
is amended--
(1) in subsection (e)(1)--
(A) by striking ``Attorney General'' each place such
term appears and inserting ``Secretary of Homeland
Security''; and
(B) in subparagraph (D), by striking ``Service'' and
inserting ``Department of Homeland Security'';
(2) in subsection (e)(4)--
(A) in subparagraph (A), in the matter before clause
(i), by inserting ``, subject to paragraph (10),''
after ``in an amount'';
(B) in subparagraph (A)(i), by striking ``not less
than $250 and not more than $2,000'' and inserting
``not less than $2,500 and not more than $5,000'';
(C) in subparagraph (A)(ii), by striking ``not less
than $2,000 and not more than $5,000'' and inserting
``not less than $5,000 and not more than $10,000'';
(D) in subparagraph (A)(iii), by striking ``not less
than $3,000 and not more than $10,000'' and inserting
``not less than $10,000 and not more than $25,000'';
and
(E) by moving the margin of the continuation text
following subparagraph (B) two ems to the left and by
amending subparagraph (B) to read as follows:
``(B) may require the person or entity to take such
other remedial action as is appropriate.'';
(3) in subsection (e)(5)--
(A) in the paragraph heading, strike ``paperwork'';
(B) by inserting ``, subject to paragraphs (10)
through (12),'' after ``in an amount'';
(C) by striking ``$100'' and inserting ``$1,000'';
(D) by striking ``$1,000'' and inserting ``$25,000'';
and
(E) by adding at the end the following: ``Failure by
a person or entity to utilize the employment
eligibility verification system as required by law, or
providing information to the system that the person or
entity knows or reasonably believes to be false, shall
be treated as a violation of subsection (a)(1)(A).'';
(4) by adding at the end of subsection (e) the following:
``(10) Exemption from penalty for good faith violation.--In
the case of imposition of a civil penalty under paragraph
(4)(A) with respect to a violation of subsection (a)(1)(A) or
(a)(2) for hiring or continuation of employment or recruitment
or referral by person or entity and in the case of imposition
of a civil penalty under paragraph (5) for a violation of
subsection (a)(1)(B) for hiring or recruitment or referral by a
person or entity, the penalty otherwise imposed may be waived
or reduced if the violator establishes that the violator acted
in good faith.
``(11) Mitigation element.--For purposes of paragraph (4),
the size of the business shall be taken into account when
assessing the level of civil money penalty.
``(12) Authority to debar employers for certain violations.--
``(A) In general.--If a person or entity is
determined by the Secretary of Homeland Security to be
a repeat violator of paragraph (1)(A) or (2) of
subsection (a), or is convicted of a crime under this
section, such person or entity may be considered for
debarment from the receipt of Federal contracts,
grants, or cooperative agreements in accordance with
the debarment standards and pursuant to the debarment
procedures set forth in the Federal Acquisition
Regulation.
``(B) Does not have contract, grant, agreement.--If
the Secretary of Homeland Security or the Attorney
General wishes to have a person or entity considered
for debarment in accordance with this paragraph, and
such a person or entity does not hold a Federal
contract, grant, or cooperative agreement, the
Secretary or Attorney General shall refer the matter to
the Administrator of General Services to determine
whether to list the person or entity on the List of
Parties Excluded from Federal Procurement, and if so,
for what duration and under what scope.
``(C) Has contract, grant, agreement.--If the
Secretary of Homeland Security or the Attorney General
wishes to have a person or entity considered for
debarment in accordance with this paragraph, and such
person or entity holds a Federal contract, grant, or
cooperative agreement, the Secretary or Attorney
General shall advise all agencies or departments
holding a contract, grant, or cooperative agreement
with the person or entity of the Government's interest
in having the person or entity considered for
debarment, and after soliciting and considering the
views of all such agencies and departments, the
Secretary or Attorney General may refer the matter to
any appropriate lead agency to determine whether to
list the person or entity on the List of Parties
Excluded from Federal Procurement, and if so, for what
duration and under what scope.
``(D) Review.--Any decision to debar a person or
entity in accordance with this paragraph shall be
reviewable pursuant to part 9.4 of the Federal
Acquisition Regulation.
``(13) Office for state and local government complaints.--The
Secretary of Homeland Security shall establish an office--
``(A) to which State and local government agencies
may submit information indicating potential violations
of subsection (a), (b), or (g)(1) that were generated
in the normal course of law enforcement or the normal
course of other official activities in the State or
locality;
``(B) that is required to indicate to the complaining
State or local agency within five business days of the
filing of such a complaint by identifying whether the
Secretary will further investigate the information
provided;
``(C) that is required to investigate those
complaints filed by State or local government agencies
that, on their face, have a substantial probability of
validity;
``(D) that is required to notify the complaining
State or local agency of the results of any such
investigation conducted; and
``(E) that is required to report to the Congress
annually the number of complaints received under this
paragraph, the States and localities that filed such
complaints, and the resolution of the complaints
investigated by the Secretary.''; and
(5) by amending paragraph (1) of subsection (f) to read as
follows:
``(1) Criminal penalty.--Any person or entity which engages
in a pattern or practice of violations of subsection (a) (1) or
(2) shall be fined not more than $5,000 for each unauthorized
alien with respect to which such a violation occurs, imprisoned
for not more than 18 months, or both, notwithstanding the
provisions of any other Federal law relating to fine levels.''.
SEC. 709. FRAUD AND MISUSE OF DOCUMENTS.
Section 1546(b) of title 18, United States Code, is amended--
(1) in paragraph (1), by striking ``identification
document,'' and inserting ``identification document or document
meant to establish work authorization (including the documents
described in section 274A(b) of the Immigration and Nationality
Act),''; and
(2) in paragraph (2), by striking ``identification document''
and inserting ``identification document or document meant to
establish work authorization (including the documents described
in section 274A(b) of the Immigration and Nationality Act),''.
SEC. 710. PROTECTION OF SOCIAL SECURITY ADMINISTRATION PROGRAMS.
(a) Funding Under Agreement.--Effective for fiscal years beginning on
or after October 1, 2023, the Commissioner of Social Security and the
Secretary of Homeland Security shall enter into and maintain an
agreement which shall--
(1) provide funds to the Commissioner for the full costs of
the responsibilities of the Commissioner under section 274A(d)
of the Immigration and Nationality Act (8 U.S.C. 1324a(d)), as
amended by section 3 of this Act, including (but not limited
to)--
(A) acquiring, installing, and maintaining
technological equipment and systems necessary for the
fulfillment of the responsibilities of the Commissioner
under such section 274A(d), but only that portion of
such costs that are attributable exclusively to such
responsibilities; and
(B) responding to individuals who contest a tentative
nonconfirmation provided by the employment eligibility
verification system established under such section;
(2) provide such funds annually in advance of the applicable
quarter based on estimating methodology agreed to by the
Commissioner and the Secretary (except in such instances where
the delayed enactment of an annual appropriation may preclude
such quarterly payments); and
(3) require an annual accounting and reconciliation of the
actual costs incurred and the funds provided under the
agreement, which shall be reviewed by the Inspectors General of
the Social Security Administration and the Department of
Homeland Security.
(b) Continuation of Employment Verification in Absence of Timely
Agreement.--In any case in which the agreement required under
subsection (a) for any fiscal year beginning on or after October 1,
2023, has not been reached as of October 1 of such fiscal year, the
latest agreement between the Commissioner and the Secretary of Homeland
Security providing for funding to cover the costs of the
responsibilities of the Commissioner under section 274A(d) of the
Immigration and Nationality Act (8 U.S.C. 1324a(d)) shall be deemed in
effect on an interim basis for such fiscal year until such time as an
agreement required under subsection (a) is subsequently reached, except
that the terms of such interim agreement shall be modified by the
Director of the Office of Management and Budget to adjust for inflation
and any increase or decrease in the volume of requests under the
employment eligibility verification system. In any case in which an
interim agreement applies for any fiscal year under this subsection,
the Commissioner and the Secretary shall, not later than October 1 of
such fiscal year, notify the Committee on Ways and Means, the Committee
on the Judiciary, and the Committee on Appropriations of the House of
Representatives and the Committee on Finance, the Committee on the
Judiciary, and the Committee on Appropriations of the Senate of the
failure to reach the agreement required under subsection (a) for such
fiscal year. Until such time as the agreement required under subsection
(a) has been reached for such fiscal year, the Commissioner and the
Secretary shall, not later than the end of each 90-day period after
October 1 of such fiscal year, notify such Committees of the status of
negotiations between the Commissioner and the Secretary in order to
reach such an agreement.
SEC. 711. FRAUD PREVENTION.
(a) Blocking Misused Social Security Account Numbers.--The Secretary
of Homeland Security, in consultation with the Commissioner of Social
Security, shall establish a program in which social security account
numbers that have been identified to be subject to unusual multiple use
in the employment eligibility verification system established under
section 274A(d) of the Immigration and Nationality Act (8 U.S.C.
1324a(d)), as amended by section 3 of this Act, or that are otherwise
suspected or determined to have been compromised by identity fraud or
other misuse, shall be blocked from use for such system purposes unless
the individual using such number is able to establish, through secure
and fair additional security procedures, that the individual is the
legitimate holder of the number.
(b) Allowing Suspension of Use of Certain Social Security Account
Numbers.--The Secretary of Homeland Security, in consultation with the
Commissioner of Social Security, shall establish a program which shall
provide a reliable, secure method by which victims of identity fraud
and other individuals may suspend or limit the use of their social
security account number or other identifying information for purposes
of the employment eligibility verification system established under
section 274A(d) of the Immigration and Nationality Act (8 U.S.C.
1324a(d)), as amended by section 3 of this Act. The Secretary may
implement the program on a limited pilot program basis before making it
fully available to all individuals.
(c) Allowing Parents To Prevent Theft of Their Child's Identity.--The
Secretary of Homeland Security, in consultation with the Commissioner
of Social Security, shall establish a program which shall provide a
reliable, secure method by which parents or legal guardians may suspend
or limit the use of the social security account number or other
identifying information of a minor under their care for the purposes of
the employment eligibility verification system established under
274A(d) of the Immigration and Nationality Act (8 U.S.C. 1324a(d)), as
amended by section 3 of this Act. The Secretary may implement the
program on a limited pilot program basis before making it fully
available to all individuals.
SEC. 712. USE OF EMPLOYMENT ELIGIBILITY VERIFICATION PHOTO TOOL.
An employer who uses the photo matching tool used as part of the E-
Verify System shall match the photo tool photograph to both the
photograph on the identity or employment eligibility document provided
by the employee and to the face of the employee submitting the document
for employment verification purposes.
SEC. 713. IDENTITY AUTHENTICATION EMPLOYMENT ELIGIBILITY VERIFICATION
PILOT PROGRAMS.
Not later than 24 months after the date of the enactment of this Act,
the Secretary of Homeland Security, after consultation with the
Commissioner of Social Security and the Director of the National
Institute of Standards and Technology, shall establish by regulation
not less than 2 Identity Authentication Employment Eligibility
Verification pilot programs, each using a separate and distinct
technology (the ``Authentication Pilots''). The purpose of the
Authentication Pilots shall be to provide for identity authentication
and employment eligibility verification with respect to enrolled new
employees which shall be available to any employer that elects to
participate in either of the Authentication Pilots. Any participating
employer may cancel the employer's participation in the Authentication
Pilot after one year after electing to participate without prejudice to
future participation. The Secretary shall report to the Committee on
the Judiciary of the House of Representatives and the Committee on the
Judiciary of the Senate the Secretary's findings on the Authentication
Pilots, including the authentication technologies chosen, not later
than 12 months after commencement of the Authentication Pilots.
SEC. 714. INSPECTOR GENERAL AUDITS.
(a) In General.--Not later than 1 year after the date of the
enactment of this Act, the Inspector General of the Social Security
Administration shall complete audits of the following categories in
order to uncover evidence of individuals who are not authorized to work
in the United States:
(1) Workers who dispute wages reported on their social
security account number when they believe someone else has used
such number and name to report wages.
(2) Children's social security account numbers used for work
purposes.
(3) Employers whose workers present significant numbers of
mismatched social security account numbers or names for wage
reporting.
(b) Submission.--The Inspector General of the Social Security
Administration shall submit the audits completed under subsection (a)
to the Committee on Ways and Means of the House of Representatives and
the Committee on Finance of the Senate for review of the evidence of
individuals who are not authorized to work in the United States. The
Chairmen of those Committees shall then determine information to be
shared with the Secretary of Homeland Security so that such Secretary
can investigate the unauthorized employment demonstrated by such
evidence.
SEC. 715. AGRICULTURE WORKFORCE STUDY.
Not later than 36 months after the date of enactment, the Secretary
of the Department of Homeland Security, in consultation with the
Secretary of the Department of Agriculture, shall submit to the
Committee on the Judiciary of the House of Representatives and the
Committee on the Judiciary of the Senate, a report that includes the
following:
(1) The number of individuals in the agricultural workforce.
(2) The number of U.S. citizens in the agricultural
workforce.
(3) The number of aliens in the agricultural workforce who
are authorized to work in the United States.
(4) The number of aliens in the agricultural workforce who
are not authorized to work in the United States.
(5) Wage growth in each of the previous ten years,
disaggregated by agricultural sector.
(6) The percentage of total agricultural industry costs
represented by agricultural labor during each of the last ten
years.
(7) The percentage of agricultural costs invested in
mechanization during each of the last ten years.
(8) Recommendations, other than a path to legal status for
aliens not authorized to work in the United States, for
ensuring U.S. agricultural employers have a workforce
sufficient to cover industry needs, including recommendations
to--
(A) increase investments in mechanization;
(B) increase the domestic workforce; and
(C) reform the H-2A program.
SEC. 716. REPEALING REGULATIONS.
The rules relating to ``Temporary Agricultural Employment of H-2A
Nonimmigrants in the United States'' (87 Fed. Reg. 61660 (Oct. 12,
2022)) and to ``Adverse Effect Wage Rate Methodology for the Temporary
Employment of H-2A Nonimmigrants in Non-Range Occupations in the United
States'' (88 Fed. Reg. 12760 (Feb. 28, 2023)) shall have no force or
effect, may not be reissued in substantially the same form, and any new
rules that are substantially the same as such rules may not be issued.
Purpose and Summary
H.R. 2640, the Border Security and Enforcement Act of 2023,
introduced by Rep. Tom McClintock (R-CA), would close loopholes
for claims of asylum and withholding of removal, fortify border
security by ending the Biden Administration's ``catch-and-
release'' policy, end the illegal use of parole, expand
penalties for visa overstayers, reduce incentives for illegal
immigration by mandating nationwide E-Verify, and close
longstanding loopholes in the processing of both accompanied
and unaccompanied alien children.
Background and Need for the Legislation
A. General Background
Since President Biden took office in January 2021, U.S.
Customs and Border Protection (CBP) officials have encountered
more than 5 million illegal aliens along the southwest
border.\1\ During December 2022, CBP encountered 251,487
illegal aliens crossing the southwest border--the highest
recorded number of encounters in a single month and an average
of 8,100 illegal alien encounters per day.\2\ This figure
eclipses all of the record-high monthly encounter numbers
previously set by the Biden Administration.\3\ Meanwhile, the
Biden Administration has released nearly 2 million illegal
aliens encountered along the southwest border into American
communities.\4\ Additionally, since President Biden took
office, more than 1.5 million known illegal alien ``gotaways''
have successfully crossed the southwest border undetected.\5\
---------------------------------------------------------------------------
\1\U.S. Customs and Border Protection, Southwest Land Border
Encounters, Dep't of Homeland Security (last accessed Apr. 25, 2023),
https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters
[hereinafter CBP Southwest Land Border Encounters].
\2\Id.
\3\Id.
\4\Texas v. Biden, Case No: 2:21-cv-00067-Z (N.D. Texas) (Brief For
America First Legal Foundation As Amicus Curiae In Support of
Respondents, Defendants' Monthly Report For Mar. 2022, Defendants'
Monthly Report For April 2022, Defendants' Monthly Report For May 2022,
Defendants' Monthly Report For June 2022); MPP Reimplementation Report,
July 2022, MPP Reimplementation Report, Aug. 2022, MPP Reimplementation
Report, Sept. 2022, MPP Reimplementation Report Oct. 2022, MPP
Reimplementation Report Nov. 2022, MPP Reimplementation Report, Dec.
2022, MPP Reimplementation Report, Jan. 2023, MPP Reimplementation
Report, Feb. 2023, provided to Committee Staff by U.S. Dep't of
Homeland Security.
\5\Neil Munro, Border Patrol Chief: 1.5 Million `Gotaway' Migrants
During Biden's Term, Breitbart (Mar. 15, 2023), https://
www.breitbart.com/politics/2023/03/15/border-patrol-chief-1-5-million-
gotaway-migrants-during-bidens-term/.
---------------------------------------------------------------------------
In addition to record numbers of illegal alien encounters
at the border, the Biden Administration has created illegal
programs to categorically parole hundreds of thousands of
additional aliens into the United States. For example, in
response to ``almost four times as many Venezuelans''
attempting to cross the southwest border than the year before,
in October 2022, the Department of Homeland Security (DHS)
announced the creation of such a program for Venezuelan
nationals, which would allow up to 24,000 Venezuelans into the
United States.\6\ On January 5, 2023, DHS--purportedly in
preparation for the end of Title 42--expanded the illegal
categorical parole program to Cubans, Haitians, and
Nicaraguans, and increased the allowable number to at least
360,000 qualifying nationals each year.\7\ On April 26, 2023,
DHS announced additional categorical parole programs for
nationals of El Salvador, Guatemala, Honduras, and Colombia.\8\
These categorical parole programs are a blatant attempt by the
Biden Administration to ensure the mass release of aliens into
the United States, without the negative publicity associated
with videos of aliens rushing across the southwest border
illegally.
---------------------------------------------------------------------------
\6\DHS Announces New Migration Enforcement Process for Venezuelans,
U.S. Dep't of Homeland Security (Oct. 12, 2022), https://www.dhs.gov/
news/2022/10/12/dhs-announces-new-migration-enforcement-process-
venezuelans (emphasis added).
\7\DHS Continues to Prepare for End of Title 42; Announces New
Border Enforcement Measures and Additional Safe and Orderly Processes,
U.S. Dep't of Homeland Security (Jan. 5, 2023), https://www.dhs.gov/
news/2023/01/05/dhs-continues-prepare-end-title-42-announces-new-
border-enforcement-measures-and.
\8\Fact Sheet: U.S. Government Announces Sweeping New Actions to
Manage Regional Migration, U.S. Dep't of Homeland Security (Apr. 27,
2023), https://www.dhs.gov/news/2023/04/27/fact-sheet-us-government-
announces-sweeping-new-actions-manage-regional-migration.
---------------------------------------------------------------------------
Because of the Biden Administration's open-borders
policies, the immigration court system backlog has grown over
50 percent, from 1.2 million at the end of fiscal year (FY)
2020, to nearly 1.9 million at the end of the first quarter of
FY 2023.\9\ Many of those are asylum claims that ultimately
will be unsuccessful. H.R. 2640 will help end the abuse of U.S.
immigration laws by aliens and the Biden Administration alike.
---------------------------------------------------------------------------
\9\Executive Office for Immigration Review, Adjudication
Statistics: Pending Cases, New Cases, and Total Completions, U.S. Dep't
of Justice (last accessed Apr. 16, 2022), https://www.justice.gov/eoir/
page/file/1242166/download.
---------------------------------------------------------------------------
B. Background on Asylum
i. Overview of Asylum
Asylum is a discretionary benefit that ultimately provides
permanent residence and the ability to naturalize to aliens who
meet the definition of a ``refugee'' under the Immigration and
Nationality Act (INA). ``Refugees'' are defined as aliens who
are unwilling or unable to return to their country of
citizenship because of persecution based on race, religion,
nationality, membership in a social group, or political
opinion.\10\ An alien seeking asylum must demonstrate either
past persecution or a well-founded fear of future
persecution.\11\ Under current law, persecution is ``a threat
to the life or freedom of, or the infliction of suffering or
harm upon, those who differ in a way regarded as
offensive.''\12\ A ``well-founded fear'' consists of a
``reasonable'' fear of persecution, rather than a ``clear
probability'' of persecution.\13\ Currently, therefore, an
alien may receive a discretionary grant of asylum by
establishing past persecution or a well-founded fear of future
persecution where one of the five enumerated grounds is at
least one central reason for the persecution.
---------------------------------------------------------------------------
\10\See INA Sec. 101(a)(42).
\11\See Id.
\12\Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985).
\13\INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).
---------------------------------------------------------------------------
ii. Credible Fear Process
For millions of aliens, the process to remain indefinitely
in the United States under the guise of applying for asylum
begins at the southwest border through a credible fear
interview. Under the INA, certain aliens encountered at the
border are subject to expedited removal, in which they are
ordered removed from the United States without further review
or hearing.\14\ That removal provision, however, does not apply
to any alien who indicates an intention to apply for asylum or
otherwise expresses a fear of persecution.\15\ In those cases,
an asylum officer conducts a credible fear interview to
determine whether ``there is a significant possibility'' that
the alien could establish eligibility for asylum.\16\ The
Supreme Court has acknowledged that this standard is even lower
than the standard for asylum, as ``[t]he applicant need not
show that he or she is in fact eligible for asylum--a `credible
fear' equates to only a `significant possibility' that the
alien would be eligible.''\17\ At least one federal district
court has quantified this standard, stating that ``to prevail
at a credible fear interview, the alien need only show a
`significant possibility' of a one in ten chance of
persecution, i.e., a fraction of ten percent.''\18\ The
legislative history of the credible fear standard likewise
reflects that the standard was meant to be low.\19\
---------------------------------------------------------------------------
\14\See INA Sec. 235(b)(1)(A).
\15\Id.
\16\See INA Sec. 235(b)(1)(B)(v).
\17\Dep't of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1965
(2020).
\18\Grace v. Whitaker, 344 F. Supp. 3d 96, 127 (D.D.C. 2018)
(quoting Cardoza-Fonseca, 480 U.S. at 431-32, aff'd in part, rev'd in
part and remanded sub nom. Grace v. Barr, 965 F.3d 883 (D.C. Cir.
2020)).
\19\See, e.g., 142 Cong. Rec. S11491-02 (statement of former Sen.
Orrin Hatch).
---------------------------------------------------------------------------
Under the statute, if an asylum officer finds that an alien
has established a credible fear of persecution, the alien is
then placed in full removal proceedings before an immigration
judge.\20\ That process can take years. In FY 2022, the average
completion time for immigration cases at the immigration court
level was more than four years.\21\ To make matters worse, the
Biden Administration has ignored the requirement to place such
aliens in removal proceedings by issuing aliens a Notice to
Appear (NTA).\22\ Instead, for a period of time, the Biden
Administration issued aliens a Notice to Report, with
instructions to report to a local Immigration and Customs
Enforcement (ICE) office to be served with an NTA.\23\ Those
offices, however, are backlogged for years, with New York
City's ICE office ``fully booked through October 2032.''\24\
Offices in Jacksonville, Florida, were mostly booked through
June 2028; in Miami, through January 2028; and in Atlanta,
through January 2027.\25\
---------------------------------------------------------------------------
\20\See INA Sec. 235(b)(1)(B)(ii).
\21\Circumvention of Lawful Pathways, 88 Fed. Reg. 11704, 11716
(proposed Feb. 23, 2023) (to be codified at 8 C.F.R. 208, 1208).
\22\See INA Sec. 235(b)(1)(B)(ii); 8 C.F.R. Sec. 1239.1(a) (``Every
removal proceeding conducted under [8 U.S.C. Sec. 1229a] to determine
the deportability or inadmissibility of an alien is commenced by the
filing of a notice to appear with the immigration court.'').
\23\Fla. v. United States, No. 3:21-CV-1066-TKW-ZCB, 2023 WL
2399883, at *4 (N.D. Fla. Mar. 8, 2023).
\24\Steven Nelson, NYC ICE office ``fully booked'' for migrant
appointments through late 2032: document, N.Y. Post (Mar. 13, 2023),
https://nypost.com/2023/03/13/nyc-ice-office-fully-booked-for-migrant-
appointments-through-late-2032/.
\25\Id.
---------------------------------------------------------------------------
Consequently, aliens realize that claiming a fear of
persecution at the southwest border is their ticket into the
United States, and the number of encounters and credible fear
claims reflects that reality. The Government Accountability
Office (GAO) found that, between FY 2014 and FY 2018, the
caseload of U.S. Citizenship and Immigration Services (USCIS)
nearly doubled--``from about 56,000 to almost 109,000 referrals
for credible and reasonable fear screenings.''\26\ Meanwhile,
asylum officers found that an alien had established a credible
fear in 77 percent of all screenings.\27\ This number rose to
87 percent at family residential centers.\28\
---------------------------------------------------------------------------
\26\U.S. Gov't Accountability Office, GAO-20-250, Immigration:
Actions Needed to Strengthen USCIS's Oversight and Data Quality of
Credible and Reasonable Fear Screenings (Feb. 2020), https://
www.gao.gov/assets/gao-20-250.pdf.
\27\Id. (During the same time, by contrast, ``officers made
positive determinations in about 30 percent of reasonable fear
screenings.'') (Emphasis added).
\28\Id.
---------------------------------------------------------------------------
When combined with a lack of detention and the Biden
Administration's clear defiance of the immigration statutes, a
low credible fear standard incentives mass illegal immigration
into the United States by aliens whose claims most likely will
be denied ultimately. For instance, in FY 2022, for asylum
cases originating with a credible fear claim at the border,
only 13.69 percent of applications were granted; 10.99 percent
were denied; 7.71 percent were administratively closed; and
40.23 percent were abandoned, not adjudicated, withdrawn, or
``other.''\29\ Aliens in 27.37 percent of cases originating
with a credible fear claim did not even bother filing an asylum
application after being placed into full removal
proceedings.\30\ Between FY 2008 and FY 2022, aliens in 39.36
percent of such cases did not even file an asylum
application.\31\
---------------------------------------------------------------------------
\29\Executive Office for Immigration Review, Adjudication
Statistics: Asylum Decision and Filing Rates in Cases Originating with
a Credible Fear Claim, U.S. Dep't of Justice (last accessed Feb. 10,
2023), https://www.justice.gov/eoir/page/file/1062976/download. (These
numbers mirrored the overall numbers from 2008 through 2019, with
``only 14 percent of aliens who claimed [a] credible fear of
persecution or torture [being] granted asylum'' during that time). See
also Biden v. Texas, 554 F. Supp. 3d 818, 831 (S.D. Tex. 2021).
\30\Id.
\31\Id.
---------------------------------------------------------------------------
The Biden Administration itself has admitted this loophole
is a problem, acknowledging that while ``[a] full 83 percent of
the people who were subject to [expedited removal] and claimed
fear from 2014 to 2019 were referred to an [immigration judge]
for [removal] proceedings,'' only ``15 percent of those cases
that were completed were granted asylum or some other form of
protection.''\32\
---------------------------------------------------------------------------
\32\Circumvention of Lawful Pathways, 88 Fed. Reg. 11704 (proposed
Feb. 23, 2023) (to be codified at 8 C.F.R. 208, 1208).
---------------------------------------------------------------------------
iii. Frivolity and Fraud in the Asylum Process
Once in immigration proceedings, most asylum applicants
present invalid claims based on several situations that the
Board of Immigration Appeals (BIA) and federal courts of
appeals have repeatedly rejected. For example, many aliens seek
asylum due to gang violence occurring in their home countries.
According to current case law, however, ``asylum is not offered
for those who are unfortunate enough to be victims of ordinary
crime or generalized chaos.''\33\ To sufficiently establish
persecution, an alien must demonstrate those actions against
him do ``not encompass purely private actions.''\34\ Current
law states that ``the persecution must be inflicted by the
government, or by private actors whom the government is unable
or unwilling to control.''\35\ If a petitioner can ``relocate
to another part of his country of nationality and it would be
reasonable under the circumstances to expect him to do so,'' he
will not receive asylum.\36\ Only when the government is
``unable or unwilling to control'' forces that persecute an
alien is affirmative state action unnecessary to establish
eligibility for asylum and withholding of removal.\37\ This
exception does not include a general fear of gang violence.\38\
---------------------------------------------------------------------------
\33\Escobar v. Holder, 657 F.3d 537, 543 (7th Cir. 2011).
\34\Jonaitiene v. Holder, 660 F.3d 267, 270 (7th Cir. 2011).
\35\Id.
\36\Oryakhil v. Mukasey, 528 F.3d 993, 998 (7th Cir. 2008).
\37\See Tesfamichael v. Gonzales, 469 F.3d 109, 113 (5th Cir.
2006). See generally Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018).
\38\See, e.g., Harmon v. Holder, 758 F.3d 728, 735 (6th Cir. 2014)
(``General conditions of rampant violence alone are insufficient to
establish eligibility.''); Constanza v. Holder, 647 F.3d 749, 753 (8th
Cir. 2011) (rejecting as too broad the particular social groups of ``a
family that experienced gang violence'' and ``persons resistant to gang
violence''); Sicaju-Diaz v. Holder, 663 F.3d 1, 4 (1st Cir. 2011)
(rejecting PSG of ``wealthy individuals returning to Guatemala from a
lengthy stay in the United States'' and stating that, [i]n a poorly
policed country, rich and poor are all prey to criminals who care about
nothing more than taking it for themselves.'').
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Aliens also continue to pursue claims for asylum and
withholding of removal based on other frequently-rejected
circumstances such as gang recruitment;\39\ perceptions of
wealth or affluence;\40\ and additional reasons that are not
tied to any protected ground of race, religion, nationality,
political opinion, or membership in a particular social
group.\41\ Aliens also attempt to fit myriad claims into the
protected ground of a ``particular social group,'' a phrase
which, in 1993, now-Justice Samuel Alito described as ``almost
completely open-ended.''\42\ Without addressing these frequent
invalid bases for asylum and withholding of removal, certain
courts (such as the U.S. Courts of Appeals for the Fourth
Circuit and the Ninth Circuit) continue to chip away at
precedent and the standards for asylum and withholding of
removal.
---------------------------------------------------------------------------
\39\See, e.g., Matter of E-A-G-, 24 I. & N. Dec. 591, 594 (BIA
2008) (rejecting PSG of those opposed to gang recruitment).
\40\See, e.g., Matter of A-M-E- & J-G-U-, 24 I. & N. Dec. 69, 76
(BIA 2007) (``The characteristic of wealth or affluence is simply too
subjective, inchoate, and variable to provide the sole basis for
membership in a particular social group. We therefore find that the
respondents have not demonstrated that `wealthy Guatemalans' constitute
a particular social group.'').
\41\See, e.g., Gjetani v. Barr, 968 F.3d 393, 397 (5th Cir. 2020)
(``Courts have condemned all manner of egregious and even violent
behavior while concluding they do not amount to persecution.''); Majd
v. Gonzales, 446 F.3d 590, 595 (5th Cir. 2006) (holding that
persecution ``does not encompass all treatment that our society regards
as unfair, unjust, or even unlawful or unconstitutional. If persecution
were defined that expansively, a significant percentage of the world's
population would qualify for asylum in this country--and it seems most
unlikely that Congress intended such a result. Persecution must be
extreme conduct to qualify for asylum protection.'').
\42\Fatin v. I.N.S., 12 F.3d 1233, 1238 (3rd Cir. 1993).
---------------------------------------------------------------------------
The overall asylum rates reflect the high number of invalid
claims. In FY 2022, for example, the grant rate for asylum
applications filed in immigration court was only 14.17
percent.\43\ Nearly 17 percent of asylum applications were
denied; 12.76 percent of the cases were administratively
closed; and 56.3 percent were abandoned, not adjudicated,
withdrawn, or ``other.''\44\ The denial rates were even higher
in 2019, 2020, and 2021, with 49.55 percent, 54.59 percent, and
30.64 percent of asylum applications denied in each respective
year.\45\ FY 2022 was the first year that the asylum denial
rate dipped below 20 percent since at least FY 2008, with an
average denial rate during that time of 30.36 percent.\46\ By
contrast, the average grant rate during that time was only
23.39 percent.\47\
---------------------------------------------------------------------------
\43\Executive Office for Immigration Review, Adjudication
Statistics: Asylum Decision Rates, U.S. Dep't of Justice (last accessed
Feb. 10, 2023), https://www.justice.gov/eoir/page/file/1248491/
download.
\44\Id.
\45\Id.
\46\Id.
\47\Id.
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In addition to suffering under the weight of frivolous
claims, the immigration court system is plagued by decades-long
fraud. As a 2015 GAO report emphasized, ``granting asylum to an
individual with a fraudulent claim jeopardizes the integrity of
the asylum system by enabling the individual to remain in the
United States, apply for certain federal benefits, and pursue a
path to citizenship.''\48\ In 2011, Judge Denise N. Slavin, a
former representative of the National Association of
Immigration Judges, described fraud in the immigration system
as ``a huge issue and a major problem.''\49\ Recent federal
prosecutions underscore that such fraud remains endemic 12
years later. For example, in November 2018, a Queens, New York,
immigration attorney, was sentenced to five years in prison for
submitting ``more than 100 [asylum] applications in which she
knowingly made false statements and representations about,
among other things, the applicants'' personal narratives of
alleged persecution, criminal histories, and travel
histories.''\50\
---------------------------------------------------------------------------
\48\U.S. Gov't Accountability Office, Gao-16-50, Asylum: Additional
Actions Needed to Assess and Address Fraud Risks (Dec. 2015), https://
www.gao.gov/assets/gao-16-50.pdf.
\49\Sam Dolnick, Immigrants May be Fed False Stories to Bolster
Asylum Pleas, N.Y. TIMES (Jul. 11, 2011), http://www.nytimes.com/2011/
07/12/nyregion/immigrants-may-be-fed-false-stories-to-bolster-asylum-
pleas.html?pagewanted=all.
\50\Queens Immigration Attorney Sentenced to Five Years in Prison
for Operating Asylum Fraud Scheme, U.S. DEP'T OF JUSTICE (May 8, 2019),
https://www.justice.gov/usao-sdny/pr/queens-immigration-attorney-
sentenced-five-years-prison-operating-asylum-fraud-scheme.
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Similarly, in January 2023, two immigration attorneys and
their employee pleaded guilty to participating in an asylum
fraud scheme.\51\ One attorney ``advised clients to seek asylum
by falsely claiming that they were members of the lesbian, gay,
bisexual, transgender, and queer community who suffered
persecution in their native countries,'' despite the attorney
fully understanding that the clients ``were not members of that
community and suffered no such persecution.''\52\ An employee,
meanwhile, ``knowingly concocted and drafted clients'
fraudulent asylum affidavits so that they could be submitted as
part of clients' asylum applications.''\53\ In April 2021, a
federal judge sentenced a man to 20 years and 9 months in
prison for posing as an immigration attorney and filing more
than 225 fraudulent asylum applications.\54\ Despite fraud and
abuse in the asylum system, GAO has noted the inherent
difficulties in detecting fraud.\55\
---------------------------------------------------------------------------
\51\Attorneys And Associate Of Immigration Law Firm Plead Guilty To
Participating In Asylum Fraud Scheme, U.S. Dep't of Justice (Jan. 25,
2023), https://www.justice.gov/usao-sdny/pr/attorneys-and-associate-
immigration-law-firm-plead-guilty-participating-asylum-fraud.
\52\Id.
\53\Id.
\54\Phony Immigration Attorney Who Filed Hundreds Of Fraudulent
Asylum Applications Sentenced To More Than 20 Years In Federal Prison,
U.S. Dep't of Justice (Apr. 12, 2021), https://www.justice.gov/usao-
mdfl/pr/phony-immigration-attorney-who-filed-hundreds-fraudulent-
asylum-applications-sentenced.
\55\U.S. Gov't Accountability Office, supra note 48.
---------------------------------------------------------------------------
The Trump Administration attempted to address fraud and
other abuses in the asylum system through regulations. Those
actions included providing specificity regarding particular
social groups, political opinion, and persecution;\56\ adding
bars to asylum eligibility;\57\ modifying regulations regarding
agreements between the United States and other countries that
allow aliens to be removed to a third country in which they
would not be persecuted;\58\ and restricting work authorization
eligibility for asylum applicants.\59\ These reforms have since
been rolled back by the Biden Administration or enjoined by
federal courts.
---------------------------------------------------------------------------
\56\Procedures for Asylum and Withholding of Removal; Credible Fear
and Reasonable Fear Review, 85 Fed. Reg. 80274 (Dec. 11, 2020). See
generally Matter of A-B-, 28 I. & N. Dec. 199 (A.G. 2021); Matter of A-
B-, 27 I. & N. Dec. 316, 320 (A.G. 2018).
\57\Procedures for Asylum and Bars to Asylum Eligibility, 85 Fed.
Reg. 67202 (Oct. 21, 2020).
\58\Implementing Bilateral and Multilateral Asylum Cooperative
Agreements Under the Immigration and Nationality Act, 84 Fed. Reg.
63994 (Nov. 19, 2019).
\59\Asylum Application, Interview, and Employment Authorization for
Applicants, 85 Fed. Reg. 38532 (June 26, 2020).
---------------------------------------------------------------------------
Title I of H.R. 2640 builds off the successes of these
previous attempts to address fraud and abuse in the asylum
system. By defining commonly used phrases for asylum and
withholding of removal, and by heightening the credible fear
standard, the bill closes loopholes that allow frivolous
claims, thereby preserving asylum and withholding of removal
for those truly fleeing persecution. The bill also prevents
additional criminal aliens from receiving asylum by expanding
the exceptions to asylum eligibility and by applying them to
eligibility for employment authorization. Title I also
clarifies when employment authorization ends. By requiring
aliens to seek protection in countries through which they
transited and by defining ``firm resettlement,'' the bill also
codifies the BIA's observation that asylum is not meant to
provide aliens ``with a broader choice of safe homelands, but
rather, to protect refugees with nowhere else to turn.''\60\
---------------------------------------------------------------------------
\60\Matter of B-R-, 26 I. & N. Dec. 119, 122 (BIA 2013) (cleaned
up); see Rosenberg v. Yee Chien Woo, 402 U.S. 49, 57 (1971) (describing
that travel to the United States for protection should be ``reasonably
proximate to the flight'' to avoid persecution).
---------------------------------------------------------------------------
C. Background of Migrant Protection Protocols and
Title 42
i. Migrant Protection Protocols under the Trump Administration
In January 2019, the Trump Administration implemented a new
program called the Migrant Protection Protocols (MPP), designed
to address the increasing number of aliens illegally crossing
the border.\61\ The program was designed for ``certain aliens
attempting to enter the U.S. illegally or without
documentation, including those who claim asylum . . . .''\62\
The Trump Administration explained that those aliens would ``no
longer be released into the country . . . . Instead, [the]
aliens [would] be given a `Notice to Appear' for their
immigration court hearing and [would] be returned to Mexico
until their hearing date.''\63\
---------------------------------------------------------------------------
\61\Migrant Protection Protocols, U.S. Dep't of Homeland Security
(last published Jan. 24, 2019), https://www.dhs.gov/news/2019/01/24/
migrant-protection-protocols [hereinafter DHS Migrant Protection
Protocols].
\62\Id.
\63\Id.
---------------------------------------------------------------------------
MPP was crafted to discourage aliens from crossing
illegally and pursuing frivolous asylum claims. Most aliens
pursued these frivolous claims knowing that their cases would
take years to adjudicate, and, in the meantime, they would be
released into the interior of the U.S., with employment
authorization, until their case was heard and decided. In fact,
``most aliens lacked meritorious claims for asylum . . . [with]
only 14 percent of aliens who claimed credible fear of
persecution or torture [being] granted asylum between FY 2008
and FY 2019.''\64\ Between May and September 2019, MPP led to a
64 percent decrease in border apprehensions.\65\
---------------------------------------------------------------------------
\64\Biden v. Texas, 554 F. Supp. 3d 818, 831 (S.D. Tex. 2021).
\65\Id. at 833.
---------------------------------------------------------------------------
ii. Migrant Protection Protocols under the Biden Administration
Following President Biden's inauguration on January 20,
2021, DHS suspended all new enrollments in MPP and began the
process of terminating the program.\66\ On February 19, 2021,
the Biden Administration began processing into the United
States all the aliens waiting in Mexico pursuant to MPP.\67\
DHS Secretary Alejandro Mayorkas issued a memorandum on June 1,
2021, formally terminating the MPP program.\68\ Secretary
Mayorkas claimed that ``MPP does not adequately or sustainably
enhance border management in such a way as to justify the
program's extensive operational burdens and other
shortfalls.''\69\
---------------------------------------------------------------------------
\66\DHS Statement on the Suspension of New Enrollments in the
Migrant Protection Protocols Program, U.S. Dep't of Homeland Security
(Jan. 20, 2021), https://www.dhs.gov/news/2021/01/20/dhs-statement-
suspension-new-enrollments-migrant-protection-protocols-program; See
Robert Barnes, Biden asks Supreme Court to cancel arguments on two of
Trump's immigration priorities, Wash. Post (Feb. 1, 2021), https://
www.washingtonpost.com/politics/courts_law/biden-supreme-court-trump-
border-wall-immigration/2021/02/01/07acf182-64d1-11eb-8c64-
9595888caa15_story.html.
\67\The MPP Program and Border Security Joint Statement by
Assistant to the President and National Security Advisor Jake Sullivan
and Assistant to the President and Homeland Security Advisor Dr.
Elizabeth Sherwood-Randall, The White House (Feb. 16, 2021), https://
www.whitehouse.gov/briefing-room/statements-releases/2021/02/16/the-
mpp-program-and-border-security-joint-statement-by-assistant-to-the-
president-and-national-security-advisor-jake-sullivan-and-assistant-to-
the-president-and-homeland-security-advisor-and-deputy-na/.
\68\Alejandro N. Mayorkas, Memorandum--Termination of Migrant
Protection Protocols Program, U.S. Dep't of Homeland Security (June 1,
2021), https://www.dhs.gov/sites/default/files/publications/
21_0601_termination_of_mpp_program.pdf.
\69\Id.
---------------------------------------------------------------------------
After the Biden Administration terminated MPP, a federal
court enjoined DHS from implementing the Mayorkas memorandum
and ordered DHS to enforce and implement MPP in good faith
until it had been lawfully rescinded in compliance with the
Administrative Procedure Act.\70\ The Supreme Court denied the
Biden Administration's request to stay the ruling of the lower
court,\71\ forcing the Administration to restart MPP in
compliance with the court order until it could issue a new
memorandum addressing the concerns of the court.\72\ In the
interim, on October 29, 2021, the Secretary Mayorkas issued
another MPP termination memo.\73\
---------------------------------------------------------------------------
\70\Texas v. Biden, Memorandum Opinion and Order, Case No. 2:21-cv-
00067-Z (N.D. Tex., Aug.13, 2021), available at https://
storage.courtlistener.com/recap/gov.uscourts.txnd.346680/
gov.uscourts.txnd.346680.94.0.pdf.
\71\Caroline Simon, Supreme Court denies Biden's attempt to end
`Remain in Mexico', Roll Call (Aug. 24, 2021), https://rollcall.com/
2021/08/24/supreme-court-denies-bidens-attempt-to-end-remain-in-
mexico/.
\72\DHS Announces Intention to Issue New Memo Terminating MPP, U.S.
Dep't of Homeland Security (Sept. 29, 2021), https://www.dhs.gov/news/
2021/09/29/dhs-announces-intention-issue-new-memo-terminating-mpp.
\73\Alejandro N. Mayorkas, Termination of the Migrant Protection
Protocols, U.S. Dep't of Homeland Security (Oct. 29, 2021), https://
www.dhs.gov/sites/default/files/2022-01/21_1029_mpp-termination-
memo.pdf.
---------------------------------------------------------------------------
In December 2021, the Biden Administration reimplemented
MPP, though not in the same manner as the Trump
Administration.\74\ For instance, only single adults were
enrolled in the program. In addition, the Biden Administration
exempted from the program individuals who fell into certain
categories, including known mental or physical health concerns,
youth, old age, pregnancy, and LGBTQ status.\75\
---------------------------------------------------------------------------
\74\Quinn Owen, Biden administration reimposes `Remain in Mexico'
policy, ABC News (Jan. 3, 2022), https://abcnews.go.com/Politics/biden-
administration-reimposes-remain-mexico-policy/story?id=82059354.
\75\Calls with Committee Staff.
---------------------------------------------------------------------------
Meanwhile, smuggling cartels and illegal aliens heard the
Biden Administration's open-borders message. Since President
Biden took office, CBP officials have encountered more than
five million illegal aliens along the southwest border.\76\ In
just the first five months of FY 2023, CBP has encountered more
than 1 million illegal aliens at the southwest border.\77\ The
Biden Administration has rewarded these encounters--while
simultaneously incentivizing additional influxes of aliens--by
releasing into the United States nearly 2 million illegal
aliens who were encountered at the southwest border instead of
either detaining them, as the statute mandates, or placing them
in MPP.\78\
---------------------------------------------------------------------------
\76\CBP Southwest Land Border Encounters, supra note 1.
\77\Id.
\78\See Texas v. Biden, Case No: 2:21-cv-00067-Z (N.D. Texas)
(Brief For America First Legal Foundation As Amicus Curiae In Support
of Respondents, Defendants' Monthly Report For Mar. 2022, Defendants'
Monthly Report For April 2022, Defendants' Monthly Report For May 2022,
Defendants' Monthly Report For June 2022); MPP Reimplementation Report,
July 2022, MPP Reimplementation Report, Aug. 2022, MPP Reimplementation
Report, Sept. 2022, MPP Reimplementation Report Oct. 2022, MPP
Reimplementation Report Nov. 2022, MPP Reimplementation Report, Dec.
2022, MPP Reimplementation Report, Jan. 2023, MPP Reimplementation
Report, Feb. 2023, provided to Committee Staff by U.S. Dep't of
Homeland Security.
---------------------------------------------------------------------------
In June 2022, the Supreme Court upheld the Biden
Administration's termination of MPP, though it did not address
whether the Biden Administration was violating the mandatory
detention provisions in the INA.\79\ In dissent, however,
Justice Alito was unequivocal: ```Shall be detained' means
`shall be detained.'''\80\ In early March 2023, a federal
district court agreed with Justice Alito, observing that the
Biden Administration's policies were ``akin to posting a
flashing `Come In, We're Open' sign on the southern
border.''\81\ The court further concluded that ``the dramatic
increases in the number of aliens being released at the
[s]outhwest [b]order [were] attributable to changes in
detention policy, not increases in border traffic.''\82\
---------------------------------------------------------------------------
\79\Biden v. Texas, 142 S. Ct. 2528 (2022).
\80\Id. At 2554.
\81\Fla. v. United States, No. 3:21-CV-1066-TKW-ZCB, 2023 WL
2399883, at *6, *25 (N.D. Fla. Mar. 8, 2023).
\82\Id. At *7.
---------------------------------------------------------------------------
In stark contrast to the Biden Administration's self-
inflicted border crisis, the Trump Administration created MPP
to ``decrease the number of those taking advantage of the
immigration system . . . .''\83\ Aliens pursue frivolous asylum
claims knowing that their cases will take years to adjudicate.
In the meantime, the aliens will be released into the United
States, and given employment authorization, until their case is
decided.\84\ MPP reversed this incentive by requiring certain
aliens to wait in Mexico for the pendency of their immigration
case.\85\ According to Gloria Chavez, chief patrol agent for
the Rio Grande Valley Sector and former chief patrol agent for
the El Paso sector, MPP succeeded: ``During my time in El Paso,
we had the Migrant Protection Protocols, and they were
effective. During the years that I was the chief in El Paso,
they helped.''\86\
---------------------------------------------------------------------------
\83\DHS Migrant Protection Protocols, supra note 61.
\84\See Average Time Pending Cases Have Been Waiting in Immigration
Courts, TRAC Immigration (last accessed Feb. 13, 2023), https://
trac.syr.edu/phptools/immigration/court_backlog/
apprep_backlog_avgdays.php.
\85\DHS Migrant Protection Protocols, supra note 61.
\86\On The Front Lines of the Border Crisis: A Hearing with Chief
Patrol Agents Before the H. Comm. on Oversight and Accountability,
118th Cong. (Feb. 7, 2023) (statement of Gloria Chavez, Chief Border
Patrol Agent for the Rio Grande Valley Sector).
---------------------------------------------------------------------------
iii. Title 42
Title II of H.R. 2640 is also based on the Trump
Administration's use of Title 42, the commonly used name for
orders issued pursuant to sections 362 and 365 of the Public
Health Services Act. During the first weeks of the COVID-19
pandemic, the Centers for Disease Control and Prevention (CDC)
relied on its authority under Title 42 to suspend the entry of
most individuals into the United States.\87\ Title 42 enabled
the Trump Administration to immediately expel aliens illegally
crossing the border without having to process them under Title
8 of the INA.\88\
---------------------------------------------------------------------------
\87\Order Suspending the Right to Introduce Certain Persons from
Countries where a Quarantinable Communicable Disease Exists, 85 Fed.
Reg. 65806 (Oct. 13, 2020), https://www.cdc.gov/coronavirus/2019-ncov/
order-suspending-introduction-certain-persons.html.
\88\Id.
---------------------------------------------------------------------------
Though Title 42 was not designed as an immigration-related
authority, the Trump Administration's use of Title 42 expulsion
authority successfully deterred illegal aliens from trying to
enter the country.\89\ The Biden Administration modified the
Title 42 order several times to exempt groups of aliens from
expulsion. For instance, on February 17, 2021, the Biden
Administration carved out an exception for unaccompanied alien
children.\90\ On May 12, 2021, the Biden Administration carved
out a ``humanitarian exception.''\91\ On September 24, 2021,
Secretary Mayorkas laid out three broad humanitarian reasons
that an individual would not be subject to Title 42 expulsion:
(1) acute vulnerability; (2) operational capacity limitations;
and (3) the Convention Against Torture.\92\ From March 2021
through February 20, 2023, the Biden Administration applied
these broad exceptions to 176,362 aliens, with 102,327 such
exceptions in just the first five months of FY 2023.\93\
---------------------------------------------------------------------------
\89\CBP Southwest Land Border Encounters, supra note 1.
\90\Notice of Temporary Exception From Expulsion of Unaccompanied
Noncitizen Children Pending Forthcoming Public Health Determination, 86
Fed. Reg. 9942 (Feb. 17, 2021), https://www.federalregister.gov/
documents/2021/02/17/2021-03227/notice-of-temporary-exception-from-
expulsion-of-unaccompanied-noncitizen-children-pending.
\91\DHS Improves Process for Humanitarian Exceptions to Title 42,
U.S. Dep't of Homeland Security (May 12, 2021), https://www.dhs.gov/
news/2021/05/12/dhs-improves-process-humanitarian-exceptions-title-42.
\92\Press Briefing by Press Secretary Jen Psaki and Secretary of
Homeland Security Alejandro Mayorkas, September 24, 2021, The White
House (Sept. 24, 2021), https://www.whitehouse.gov/briefing-room/press-
briefings/2021/09/24/press-briefing-by-press-secretary-jen-psaki-and-
secretary-of-homeland-security-alejandro-mayorkas-september-24-2021/.
\93\Title 42 Humanitarian Exceptions (on file with Committee
Staff).
---------------------------------------------------------------------------
On April 1, 2022, the Biden Administration announced it
would end the Title 42 public health declaration effective May
23, 2022.\94\ The CDC stated, ``[a]fter considering current
public health conditions and an increased availability of tools
to fight COVID-19 (such as highly effective vaccines and
therapeutics), the CDC Director has determined that an Order
suspending the right to introduce migrants into the United
States is no longer necessary.''\95\
---------------------------------------------------------------------------
\94\Adam Shaw, Biden Administration to lift Title 42 at end of May,
despite fears of looming migrant wave, Fox News (Apr. 1, 2022), https:/
/www.foxnews.com/politics/biden-admin-lift-title-42-end-may-despite-
fears-looming-migrant-wave.
\95\Shaw, supra note 94.
---------------------------------------------------------------------------
Twenty-one states sued the Administration to stop the
termination, and the U.S. District Court for the Western
District of Louisiana granted an injunction.\96\ However, in
separate litigation by open-borders groups, a federal court
enjoined the Biden Administration's use of Title 42 expulsion
authority, effective December 20, 2022.\97\ Denied an
opportunity to intervene in the case with the lower court, a
group of Republican-led states filed an emergency application
for a stay with the Supreme Court, which the Court granted in
late 2022.\98\ In February 2023, the Biden Administration
argued that the ending of the COVID-19 pandemic public health
emergency later this year will terminate the Title 42 orders,
mooting the case before the Court.\99\ On February 16, 2023,
the Supreme Court removed the case from its docket.\100\ Title
42 is set to end in May 2023.\101\
---------------------------------------------------------------------------
\96\Louisiana v. Centers for Disease Control and Prevention, No.
6:22-cv-00885 (W.D. La. Apr. 27, 2022), https://s3.documentcloud.org/
documents/22026721/title-42-preliminary-injunction.pdf.
\97\Huisha-Huisha et. al. v. Mayorkas, et. al., D.D.C., No. 1:21-
cv-00100 (Nov. 15, 2022), https://perma.cc/2W2J-Y79K.
\98\Arizona v. Mayorkas, 143 S. Ct. 478 (Dec. 27, 2022).
\99\Myah Ward, DOJ says end of health emergency will terminate
Title 42 policy and moot Supreme Court case, Politico (Feb. 7, 2023,
7:29 P.M.), https://www.politico.com/news/2023/02/07/justice-
department-immigration-supreme-court-00081668.
\100\Ariane de Vogue and Devan Cole, Supreme Court removes oral
arguments over Title 42 immigration policy from its calendar, CNN (Feb.
16, 2023, 2:29 P.M.), https://www.cnn.com/2023/02/16/politics/supreme-
court-title-42/index.html.
\101\Id.
---------------------------------------------------------------------------
In March 2023, Border Patrol Chief Raul Ortiz told the
House Committee on Homeland Security that DHS did not have
operational control of the entire U.S. border.\102\ Record high
southwest border encounters reflect that reality. In FY 2022,
CBP encountered 2,378,944 illegal aliens, the most in a single
year.\103\ In FY 2021, CBP reported 1,734,686 encounters, the
second-most in a single year.\104\ In only the first five
months of FY 2023, there have been 1,029,953 southwest border
encounters.\105\
---------------------------------------------------------------------------
\102\Adam Shaw, Border Patrol chief says DHS doesn't have
operational control of US border, Fox News (Mar. 15, 2023, 1:10 P.M.),
https://www.foxnews.com/politics/border-patrol-chief-says-dhs-doesnt-
have-operational-control-us-border.
\103\CBP Southwest Land Border Encounters, supra note 1.
\104\Id.
\105\Id.
---------------------------------------------------------------------------
iv. Border Security under Title II of H.R. 2640
Under the Biden Administration's no-detention policy and
refusal to implement MPP, illegal aliens know they can enter
the United States and get lost in the backlogged asylum system.
Title II of H.R. 2640 reverses the perverse incentives created
by the Biden Administration's policies, which entice millions
of illegal aliens to flood across the southwest border. Instead
of being released en masse, rubber-stamped for employment
authorization, and receiving a court hearing scheduled for
years later, aliens either will be detained, returned to Mexico
to await asylum proceedings, or removed to a country in which
they do not have a fear of persecution or torture. Title II
also gives the DHS Secretary the authority to suspend the entry
of certain aliens to regain operational control of the border
and allows state attorneys general to sue the federal
government for violating its obligations to detain, return, or
remove aliens.
D. Background of the Flores Settlement Agreement and Its Consequences
i. The 1997 Flores Settlement Agreement
In 1997, after several years of class-action litigation in
federal court, the Clinton Administration approved the Flores
settlement agreement that set national policy regarding the
detention, release, and treatment of minors in immigration
custody.\106\ Many of the agreement's terms have been
codified.\107\ The settlement agreement defines a juvenile as a
person under the age of 18 who is not emancipated by a state
court or convicted and incarcerated due to a conviction for a
criminal offense as an adult.\108\ The agreement requires that
juveniles be held in the least restrictive setting appropriate
to their age and special needs to ensure their protection,
wellbeing, and immigration hearing appearance.\109\ It also
requires that juveniles be released from custody without
unnecessary delay to a parent, legal guardian, adult relative,
individual specifically designated by the parent, licensed
program, or, alternatively, an adult who seeks custody who DHS
deems appropriate.\110\ The agreement prioritizes release to a
parent without regard to whether the parent is in the country
unlawfully or had paid to smuggle the minor into the U.S.\111\
The agreement also requires the placement of minors in state-
licensed facilities, which, due to the absence of family
facilities, generally proves difficult for accompanied alien
children who are part of a family unit.\112\
---------------------------------------------------------------------------
\106\Flores Stipulated Settlement Agreement, Flores v. Reno, No. CV
85-4544-RJK(Px) (C.D. Cal. Jan. 17, 1997) [hereinafter Flores
Stipulated Settlement Agreement].
\107\See 8 C.F.R. Sec. 236.3.
\108\Flores Stipulated Settlement Agreement, supra note 106.
\109\Id.
\110\Id.
\111\Id.
\112\See, e.g., Ben Harrington, Cong. Research Serv., R45297, The
``Flores Settlement'' and Alien Families Apprehended at the U.S.
Border: Frequently Asked Questions (Sept. 17, 2018), https://
crsreports.congress.gov/product/pdf/R/R45297/9.
---------------------------------------------------------------------------
ii. Expansion to Accompanied Minors
In 2014, thousands of unaccompanied alien children and
families arrived at the southwest border, prompting the Obama
Administration to ``adopt[] a blanket policy to detain all
female-headed families, including children, in secure,
unlicensed facilities for the duration of the proceedings that
determine whether they [were] entitled to remain in the United
States.''\113\ In 2015, a federal judge held that the Flores
settlement agreement, including its presumption against
detention, also applied to minors who crossed the border
accompanied by their parents.\114\ The U.S. Court of Appeals
for the Ninth Circuit stated that the Flores settlement
agreement ``creates a presumption in favor of releasing minors
and requires placement of those not released in licensed, non-
secure facilities that meet certain standards.''\115\ In
certain circumstances, however, family units can be detained
together for up to 20 days.\116\
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\113\Flores v. Johnson, 212 F. Supp. 3d 864, 869 (C.D. Cal. July
24, 2015). See generally Molly Hennessy-Fiske, More Central Americans
fleeing violence to enter U.S., suggesting another major surge, L.A.
Times (Nov. 14, 2015, 3 A.M.), https://www.latimes.com/nation/
immigration/la-na-border-stats-20151114-story.html.
\114\Id at 871.
\115\See Flores v. Lynch, 828 F.3d 898 (9th Cir. 2016).
\116\See Flores v. Johnson, 212 F. Supp. 3d at 914 (``At a given
time and under extenuating circumstances, if 20 days is as fast as
Defendants, in good faith and in the exercise of due diligence, can
possibly go in screening family members for reasonable or credible
fear, then the recently-implemented DHS polices may fall within the
parameters of Paragraph 12A of the Agreement, especially if the brief
extension of time will permit the DHS to keep the family unit
together.'').
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iii. Family Detention during the Biden Administration
The Biden Administration, in line with its other policies
that completely disregard the enforcement of immigration laws,
generally releases family units into the United States.\117\ In
fact, by December 2021, ``ICE stopped housing families
entirely.''\118\ However, according to media reports, with the
end of Title 42 imminent, even the Biden Administration
considered resuming family detention.\119\
---------------------------------------------------------------------------
\117\Eileen Sullivan and Zolan Kanno-Youngs, U.S. Is Said to
Consider Reinstating Detention of Migrant Families, N.Y. Times (Mar. 6,
2023), https://www.nytimes.com/2023/03/06/us/politics/biden-
immigration-family-detention.html.
\118\U.S. Immigration and Customs Enforcement, Detention
Management, U.S. Dep't of Homeland Security (last accessed Mar. 21,
2023), https://www.ice.gov/detain/detention-management.
\119\Sullivan and Kanno-Youngs, supra note 117.
---------------------------------------------------------------------------
Knowing that the Biden Administration will give them a free
pass into the United States, family units continue to arrive at
the southwest border in record numbers. During FY 2019, CBP
apprehended 473,682 aliens that were part of a family
unit.\120\ In FY 2020, during the COVID-19 pandemic, CBP
encountered 70,944 aliens that were part of a family unit. In
FY 2021, that number soared to 479,728; in FY 2022, 560,646;
and in the first five months of FY 2023, CBP has already
encountered 271,597 aliens that were part of a family
unit.\121\
---------------------------------------------------------------------------
\120\U.S. Customs and Border Protection, Southwest Border Migration
Fiscal Year 2019, U.S. Dep't of Homeland Security (last accessed Mar.
17, 2023), https://www.cbp.gov/newsroom/stats/sw-border-migration/fy-
2019.
\121\CBP Southwest Land Border Encounters, supra note 1.
---------------------------------------------------------------------------
Cartels also take advantage of the Biden Administration's
policies related to the mass release of family units. According
to a report by the New York Post, cartels split up minors from
their parents and then have cartel members pose as the minors'
relatives to ensure quick entry into the United States.\122\
---------------------------------------------------------------------------
\122\Gabrielle Fonrouge, Mexican drug cartels using kids as decoys
in to smuggle its members into US: sheriff, N.Y. Post (Mar. 22, 2021,
12:01 P.M.), https://nypost.com/2021/03/22/mexican-drug-cartels-use-
kids-as-decoys-to-smuggle-members-into-us/.
---------------------------------------------------------------------------
Title III of H.R. 2640 reduces the incentives that draw
families and cartels to the border by eliminating the
presumption that accompanied children should not be detained.
The bill also promotes family unity by requiring DHS, and not
the Justice Department, to maintain custody of parents charged
with illegal entry, which ensures that parents and children
remain together. By eliminating the state licensure
requirement, the bill similarly ensures that parents and their
children can be housed in the same facilities.
E. History of Unaccompanied Alien Children Surges at the Southwest
Border
i. Unaccompanied Alien Children under Current Law
Under U.S. law, an unaccompanied alien child (UAC) is a
child (1) lacking lawful immigration status; (2) who has not
yet attained 18 years of age; and (3) who lacks a parent or
guardian in the United States and no parent or guardian in the
United States is available to provide the child with care and
physical custody.\123\ When UACs are apprehended, by law they
are placed into the custody of the Office of Refugee
Resettlement (ORR) within the Department of Health and Human
Services (HHS), typically shortly after they enter into the
United States.\124\ The Trafficking Victims Protection
Reauthorization Act (TVPRA) requires all federal agencies to
transfer these children to HHS within 72 hours of
identification.\125\
---------------------------------------------------------------------------
\123\See Homeland Security Act of 2002, Pub. L. 107-296, 116 Stat.
2135 (Nov. 25, 2002).
\124\Administration of Children and Families, Office of Refugee
Resettlement, ORR Fact Sheet on Unaccompanied Children's Services, U.S.
Dep't of Health And Human Servs. (Mar. 2019), https://www.acf.hhs.gov/
archive/orr/fact-sheet/orr-fact-sheet-unaccompanied-childrens-services.
\125\8 U.S.C. Sec. 1232(b)(3).
---------------------------------------------------------------------------
Under current law, there are different sets of rules for
UACs from contiguous countries and those from non-contiguous
countries.\126\ Minors from contiguous countries (Mexico and
Canada) can be immediately returned to their home country if
they consent, have not been trafficked, and do not have a
credible fear of persecution.\127\ However, minors from non-
contiguous countries (meaning any country other than Mexico and
Canada) must be placed in ORR custody pending lengthy removal
proceedings in immigration court.\128\ Thus, the TVPRA treats
UACs from Mexico and Canada differently than other UACs. After
a short stay with ORR, UACs not from Mexico or Canada are
generally released into the United States into the custody of a
sponsor.\129\
---------------------------------------------------------------------------
\126\Homeland Security Act of 2002, supra note 123.
\127\Id.
\128\Id.
\129\Administration of Children and Families, Office of Refugee
Resettlement, Unaccompanied Children Released to Sponsors by State,
U.S. Dep't of Health and Human Servs. (Apr. 28, 2023), https://
www.acf.hhs.gov/orr/grant-funding/unaccompanied-children-released-
sponsors-state.
---------------------------------------------------------------------------
ii. Consequences of the TVPRA
The number of UACs arriving at the southwest border doubled
the year following the passage of the 2008 TVPRA.\130\ Rather
than preventing the smuggling and trafficking of UACs into the
United States, this law encouraged it, causing a surge of UACs
apprehended at the border. Then, in 2012, President Obama
illegally created the Deferred Action for Childhood Arrivals
(DACA) program to defer the deportation of illegal alien
children.\131\ After DACA was announced, the number of UACs
arriving at the southwest border again surged and more than
doubled by FY 2014.\132\
---------------------------------------------------------------------------
\130\E-mail from William Kandel, Cong. Research Serv., to Committee
Staff (Mar. 16, 2023, 12:54 P.M. EST) (on file with Committee)
[hereinafter CRS UAC Data].
\131\President Barack Obama, Remarks by the President on
Immigration, The White House (June 15, 2012), https://
obamawhitehouse.archives.gov/the-press-office/2012/06/15/remarks-
president-immigration.
\132\CRS UAC Data, supra note 130.
---------------------------------------------------------------------------
In contrast, the Trump Administration implemented policies
to deter illegal immigration and discourage adults and children
alike from taking the perilous journey to the southwest
border.\133\ These policies ranged from proposing regulations
to replace the Flores Settlement Agreement, enforcing a ``zero-
tolerance policy'' to prosecute all adults who illegally
crossed irrespective of whether crossing as a family unit (and
as a result, reclassifying children crossing with a parent in
legal proceedings as a UAC) and, in the late days of his
presidency, by implementing Title 42 orders.\134\ These
policies brought illegal apprehensions at the southwest border
to a near standstill.\135\
---------------------------------------------------------------------------
\133\President Donald J. Trump is Acting to Enforce the Law, While
Keeping Families Together, The White House (June 20, 2018), https://
trumpwhitehouse.archives.gov/briefings-statements/president-donald-j-
trump-acting-enforce-law-keeping-families-together/.
\134\Id.
\135\Ana Gonzalez-Barrera, After surging in 2019, migrant
apprehensions at U.S.-Mexico border fell sharply in fiscal 2020, Pew
Research Center (Nov. 4. 2020), https://www.pewresearch.org/short-
reads/2020/11/04/after-surging-in-2019-migrant-apprehensions-at-u-s-
mexico-border-fell-sharply-in-fiscal-2020-2/.
---------------------------------------------------------------------------
In early 2021, the Biden Administration exempted UACs from
Title 42 expulsion, causing an unprecedented surge of UACs at
the southwest border, largely in the Rio Grande Valley
Sector.\136\ Since President Biden took office, 356,655 UACs
have crossed the southwest border and been placed in HHS
custody.\137\ During FY 2022, CBP encountered 152,057 UACs, the
most in a single year and a more than 400 percent increase over
the last full FY of the Trump Administration (FY 2020), when
there were only 33,239 UACs encountered by CBP.\138\
---------------------------------------------------------------------------
\136\Priscilla Alvarez, Biden administration ends Trump-era border
policy for unaccompanied migrant children, CNN (Mar. 12, 2022), https:/
/www.cnn.com/2022/03/12/politics/biden-title-42-immigration-migrant-
children/index.html.
\137\U.S. Customs and Border Protection, Nationwide Encounters,
U.S. Dep't of Homeland Security (last accessed Mar. 21, 2023), https://
www.cbp.gov/newsroom/stats/nationwide-encounters.
\138\CBP Southwest Land Border Encounters, supra note 1.
---------------------------------------------------------------------------
For almost a decade, Members of Congress have advocated for
amending the 2008 TVPRA to stop incentivizing UACs coming to
the U.S. illegally. In fact, the Protection of Children Act,
which comprises Title IV of H.R. 2640, passed the House of
Representatives in August of 2014\139\ as part of H.R. 5230,
the supplemental appropriations bill for FY 2014.\140\ The
Protection of Children Act has been reintroduced each Congress
since then and was marked up and reported favorably out of the
House Judiciary Committee in the 114th and 115th Congresses.
The bill's provisions were also included in the broader
immigration packages debated in the 115th Congress,
colloquially known as Goodlatte I\141\ and II.\142\
---------------------------------------------------------------------------
\139\H.R. 5230, 113th Cong. Sec. 101 (2014). On August 1, 2014, the
House of Representatives voted 223-189 on passage of H.R. 5230.
\140\Id.
\141\H.R. 4760, 115th Cong. (2018).
\142\H.R. 6136, 115th Cong. (2018).
---------------------------------------------------------------------------
Both President Obama and President Biden, as well as the
bipartisan Homeland Security Council, have called on Congress
to amend the TVPRA, or otherwise expressed support for doing
so, to stop the surge of UACs:
In June 2014, President Obama asked Congress
to ``provid[e] the DHS Secretary additional authority
to exercise discretion in processing the return and
removal of unaccompanied minor children from non-
contiguous countries like Guatemala, Honduras, and El
Salvador.''\143\
---------------------------------------------------------------------------
\143\Letter from the President--Efforts to Address the Humanitarian
Situation in the Rio Grande Valley Areas of Our Nation's Southwest
Border, The White House (June 30, 2014), https://
obamawhitehouse.archives.gov/the-press-office/2014/06/30/letter-
president-efforts-address-humanitarian-situation-rio-grande-valley.
---------------------------------------------------------------------------
In April 2019, the bipartisan Homeland
Security Council advised in an emergency recommendation
to Congress to ``[a]mend the Trafficking Victims
Protection Reauthorization Act (TVPRA) to permit
repatriation of any child when the custodial parent
residing in the country-of-origin requests
reunification and return of the child.''\144\
---------------------------------------------------------------------------
\144\Homeland Security Advisory Council, Final, Emergency Interim
Report, CBP Families and Children Care, U.S. Dep't of Homeland Security
(Apr. 16, 2019), https://www.dhs.gov/sites/default/files/publications/
19_0416_hsac-emergency-interim-report.pdf.
---------------------------------------------------------------------------
In May 2021, President Biden was asked if a
UAC arriving at the southwest border should be allowed
to stay or be deported back home to a parent. President
Biden replied, ``Well, the judgment has to be made
whether or not--and in this young man's case, he has a
mom at home; there's an overwhelming reason why he'd be
put in a plane and flown back to his mom.''\145\
---------------------------------------------------------------------------
\145\President Joseph Biden, Remarks of President Joseph Biden, The
White House (Mar. 25, 2021), https://www.whitehouse.gov/briefing-room/
speeches-remarks/2021/03/25/remarks-by-president-biden-in-press-
conference/.
---------------------------------------------------------------------------
iii. Mismanagement of Unaccompanied Alien Children
On February 28, 2023, the New York Times published an
expose of President Biden's HHS concerning broad failures to
adequately screen sponsors of UACs and monitor them after
placement, with HHS Secretary Xavier Becerra comparing the
placement process to an assembly line.\146\ These failures
cause UACs to be exploited and work in extremely dangerous jobs
that children are often legally prohibited from
performing.\147\
---------------------------------------------------------------------------
\146\Hannah Dreier, Alone and Exploited, Migrant Children Work
Brutal Jobs Across the U.S., N.Y. Times Feb. 28, 2023), https://
www.nytimes.com/2023/02/25/us/unaccompanied-migrant-child-workers-
exploitation.html.
\147\Id.
---------------------------------------------------------------------------
During Secretary Becerra's tenure, HHS ``began paring back
protections that had been in place for years including some
background checks and reviews of children's files'' to move
them out of the government's custody more quickly.\148\ HHS ORR
management in July 2021 drafted a memo documenting concerns
within the agency, with staff expressing concern that ``labor
trafficking was increasing'' and complaining that the agency
had become ``one that rewards individuals for making quick
releases, and not one that rewards individuals for preventing
unsafe releases.''\149\ In a staff meeting around that time,
Secretary Becerra, apparently undeterred by these concerns,
said of the UAC placement process: ``If Henry Ford had seen
this in his plant, he would have never become famous and rich.
This is not the way you do an assembly line and kids aren't
widgets, I get it. But we can do far better than this.''\150\
---------------------------------------------------------------------------
\148\Id.
\149\Id.
\150\Hannah Dreier (@hannahdreier), Twitter (Feb 25, 2023, 6:13PM),
https://twitter.com/hannahdreier/status/1629620674984648704.
---------------------------------------------------------------------------
Secretary Becerra made his demands clear to senior
leadership at ORR.\151\ Secretary Becerra reportedly told then-
ORR Director Cindy Huang that ``if she could not increase the
number of discharges, he would find someone who could.''\152\
Huang resigned a month later.\153\ According to reporting, a
similar threat was made to Huang's successor.\154\ Echoing
these demands by Becerra, former HHS contractor Kelsey Keswani
told the Times that ``twenty percent of kids have to be
released every week or you get dinged.''\155\
---------------------------------------------------------------------------
\151\Dreier, supra note 146.
\152\Id.
\153\Id.
\154\Id.
\155\Id.
---------------------------------------------------------------------------
According to press reports from September 2021, ``[r]oughly
one-in-three calls made to released migrant kids or their
sponsors between January and May went unanswered'' and ``the
data also indicates calls aren't happening with the frequency
they should.''\156\ From President Biden's inauguration through
May 2021, HHS discharged 32,000 children and teens--but the
government placed fewer than 15,000 follow-up calls.\157\ In
the last two years, HHS has lost track of more than 85,000
children.\158\
---------------------------------------------------------------------------
\156\Stef W. Kight, Exclusive: Government can't reach one-in-three
released migrant kids, AXIOS (Sept. 1, 2021), https://www.axios.com/
2021/09/01/migrant-children-biden-administration.
\157\Id.
\158\Dreier, supra note 146.
---------------------------------------------------------------------------
In late 2022, the Senate Committee on Homeland Security and
Governmental Affairs issued an oversight report regarding the
mismanagement of UACs, which found the following:
In 2021, HHS weakened its requirements for
background checks on potential sponsors and related
adults.
HHS policy does not prohibit the placement
of an unaccompanied alien child with a sponsor or other
related adult who refuses to submit to a background
check.
HHS places many unaccompanied alien children
with sponsors without seeing their living conditions.
Between FY 2018 and FY 2022, ORR released 363,124
children to sponsors. Yet, ORR conducted only 24,693
home studies--a mere 6.8 percent of cases.
DHS refuses to provide HHS ORR with some of
the information necessary for vetting sponsors and
ensuring the safe placement of children. HHS ORR
regularly requests information on potential sponsors
from DHS, including concerning individuals who arrive
with a child, but DHS in some cases will simply refuse
to provide the requested information.
HHS ORR cannot track children following
placement and the agency has failed to implement a
mechanism for tracking children after placement with a
sponsor.
HHS ORR's current mechanism for tracking
children post placement is making a minimum of three
safety and well-being phone calls to the child 30 days
after placement and does not require a home
visit.''\159\
---------------------------------------------------------------------------
\159\Staff of S. Comm. on Homeland Security and Gov. Affairs, 117th
Cong., Rep. on Federal Care of Unaccompanied Children: Minors Remain
Vulnerable to Trafficking and Abuse (Dec. 19, 2022), https://
www.hsgac.senate.gov/wp-content/uploads/imo/media/doc/
Federal%20Care%20of%20Unaccompanied%20Alien%20Children%20Report%20(FINAL
).pdf.
---------------------------------------------------------------------------
These failures result in UACs being placed in unsafe
circumstances. For instance, in December 2022, a federal judge
issued a consent order and judgment against a sanitation
company for employing migrant minor children to illegally work
jobs in slaughterhouses and meatpacking plants in the
Midwest.\160\ The Department of Labor investigation found that
the sanitation company ``employed at least 102 children--from
13 to 17 years of age--in hazardous occupations and had them
working overnight shifts at 13 meat processing facilities in
eight states.''\161\ The sanitation company was fined the
maximum amount under the law, $15,138 per child discovered to
be working illegally.\162\
---------------------------------------------------------------------------
\160\More than 100 children illegally employed in hazardous jobs,
federal investigation finds; food sanitation contractor pays $1.5M in
penalties, U.S. Dep't. of Labor (Feb. 17, 2023), https://www.dol.gov/
newsroom/releases/whd/whd20230217-1.
\161\Id.
\162\Id.
---------------------------------------------------------------------------
In addition to harming UACs, the Biden Administration's
disastrous border policies have had devastating effects on
American communities. In 2022, 20-year-old Kayla Hamilton was
raped and murdered by one of the unaccompanied alien children
who entered the country during the Biden Administration, and of
whom Secretary Becerra lost track.\163\ The UAC was reportedly
a 17-year-old MS-13 gang member.\164\
---------------------------------------------------------------------------
\163\Jeff Hager, Police: Teen gang member charged in strangling
death of Aberdeen woman with autism, WMAR2 ABC News Baltimore (Jan. 19,
2023), https://www.wmar2news.com/news/local-news/police-teen-gang-
member-charged-in-strangling-death-of-aberdeen-woman-with-autism.
\164\Id.
---------------------------------------------------------------------------
iv. Abuse and Fraud in the Special Immigrant Juvenile Classification
Alien minors who have been abused, neglected, or abandoned
by a parent and who have been declared a dependent by a state
court, can be eligible for Special Immigrant Juvenile (SIJ)
green cards.\165\ UACs use the SIJ process to gain green cards.
The 2008 TVPRA expanded the SIJ definition to allow for a
juvenile or other state court to consider whether reunification
is possible with ``one or both'' of the child's parents.\166\
This overly broad language created an unintended consequence
that allows a minor to receive an SIJ green card even if only
one of his or her two parents has abused or abandoned them, and
even if the minor can still be safely reunited with their other
parent.
---------------------------------------------------------------------------
\165\8 U.S.C. Sec. 1101(a)(27)(J).
\166\William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008, Pub. L. 110-457, 122 Stat. 5044 (Dec. 23,
2008).
---------------------------------------------------------------------------
Practitioners and advocacy groups argue that the plain
language of the statutory revision means that family
reunification must only be not viable with one parent, even if
reunification with the other parent is possible or even if the
minor is living with the other parent.\167\ This loophole has
been exploited and has burdened state courts and U.S.
Citizenship and Immigration Services with adjudicating SIJ
matters for alien children who are safely living with a parent
or guardian.\168\ Those resources should be used to focus on
the truly deserving alien children who Congress intended to be
recipients of SIJ green cards.
---------------------------------------------------------------------------
\167\Immigrant Legal Resource Center, Special Immigrant Juvenile
Status: A Primer for One-Parent Cases (Mar. 12, 2015), https://
www.ilrc.org/resources/special-immigrant-juvenile-status-primer-one-
parent-cases.
\168\Melissa Russo, Evan Stulberger, and Fred Mamoun, I-Team:
Family Court Exploited in Immigration Cases in Queens, Insiders Charge,
News 4 New York NBC (Mar. 4, 2015), https://www.nbcnewyork.com/news/
local/family-court-queens-immigration-cases-human-smuggling-green-card/
733817/.
---------------------------------------------------------------------------
SIJ green cards are issued as part of the employment-based
fourth preference (EB4) green card category that is reserved
for ``certain special immigrants.''\169\ In 1996, the first
year for which SIJ statistics are available, the number of SIJ
green cards issued was 390.\170\ Until 2000, that number never
exceeded 500.\171\ In 2008, the year of TVPRA's passage, that
number ballooned to 1,009.\172\ The number of SIJs issued
annually has increased since 2008, to 11,409 in 2021.\173\ SIJ
green cards issued annually are as follows.
---------------------------------------------------------------------------
\169\U.S. Citizenship and Immigration Servs., Employment-Based
Immigration: Fourth Preference EB-4, U.S. Dep't of Homeland Security
(last accessed Apr. 14, 2023), https://www.uscis.gov/working-in-the-
united-states/permanent-workers/employment-based-immigration-fourth-
preference-eb-4.
\170\Immigration and Naturalization Serv., 1996 Statistical
Yearbook of the Immigration Naturalization Service, Table 5. Immigrants
Admitted by Region of Birth and Type and Class of Admission Fiscal Year
1996, U.S. Dep't of Justice (Oct. 1997), https://www.dhs.gov/sites/
default/files/publications/immigration-statistics/yearbook/1996/
ins_yearbook_immigration_
statistics_1996.pdf.
\171\Immigration and Naturalization Serv., 1996 Statistical
Yearbook of the Immigration Naturalization Service, Table 5. Immigrants
Admitted by Region of Birth and Type and Class of Admission Fiscal Year
1996, U.S. Dep't of Justice (Oct. 1997); Immigration and Naturalization
Serv., 1997 Statistical Yearbook of the Immigration Naturalization
Service, Table 5. Immigrants Admitted by Region of Birth and Type and
Class of Admission Fiscal Year 1997, U.S. Dep't of Justice (Oct. 1999),
https://www.dhs.gov/sites/default/files/publications/
Yearbook_Immigration_Statistics_1997.pdf; Immigration and
Naturalization Serv., 1998 Statistical Yearbook of the Immigration
Naturalization Service, Table 5. Immigrants Admitted by Region of Birth
and Type and Class of Admission Fiscal Year 1998, U.S. Dep't of Justice
(Nov. 2000), https://www.dhs.gov/sites/default/files/publications/
Yearbook_Immigration_Statistics_1998.pdf; Immigration and
Naturalization Serv., 1999 Statistical Yearbook of the Immigration
Naturalization Service, Table 5. Immigrants Admitted by Region of Birth
and Type and Class of Admission Fiscal Year 1999, U.S. Dep't of Justice
(Mar. 2002), https://www.dhs.gov/sites/default/files/publications/
Yearbook_Immigration_Statistics_1999.pdf.
\172\Office of Immigration Statistics, 2008 Yearbook of Immigration
Statistics, Table 7. Persons Obtaining Legal Permanent Resident Status
by Type and Detailed Class of Admission: Fiscal Year 2008, U.S. Dep't
of Homeland Security (Aug. 2009), https://www.dhs.gov/sites/default/
files/publications/Yearbook_Immigration_Statistics_2008.pdf.
\173\Office of Immigration Statistics, 2021 Yearbook of Immigration
Statistics, Table 7. Persons Obtaining Legal Permanent Resident Status
by Type and Detailed Class of Admission: Fiscal Year 2021, U.S. Dep't
of Homeland Security (Nov. 2022), https://www.dhs.gov/sites/default/
files/2023-03/
2022_1114_plcy_yearbook_immigration_statistics_fy2021_v2_1.pdf.
TABLE 1.--SPECIAL IMMIGRANT JUVENILE GREEN CARDS BY FISCAL YEAR\174\
------------------------------------------------------------------------
------------------------------------------------------------------------
2008................................................. 1,009
2009................................................. 1,157
2010................................................. 1,492
2011................................................. 1,626
2012................................................. 2,280
2013................................................. 2,764
2014................................................. 3,359
2015................................................. 5,194
2016................................................. 5,613
2017................................................. 4,726
2018................................................. 4,547
2019................................................. 5,052
2020................................................. 5,545
2021................................................. 11,409
------------------------------------------------------------------------
---------------------------------------------------------------------------
\174\Office of Immigration Statistics, 2008 Yearbook of Immigration
Statistics, Table 7. Persons Obtaining Legal Permanent Resident Status
by Type and Detailed Class of Admission: Fiscal Year 2008, U.S. Dep't
of Homeland Security (Aug. 2009), https://www.dhs.gov/sites/default/
files/publications/Yearbook_Immigration_Statistics_2008.pdf; Office of
Immigration Statistics, 2009 Yearbook of Immigration Statistics, Table
7. Persons Obtaining Legal Permanent Resident Status by Type and
Detailed Class of Admission: Fiscal Year 2009, U.S. Dep't of Homeland
Security (Aug. 2010), https://www.dhs.gov/sites/default/files/
publications/ois_yb_2009.pdf; Office of Immigration Statistics, 2010
Yearbook of Immigration Statistics, Table 7. Persons Obtaining Legal
Permanent Resident Status by Type and Detailed Class of Admission:
Fiscal Year 2010, U.S. Dep't of Homeland Security (Aug. 2011), https://
www.dhs.gov/sites/default/files/publications/ois_yb_2010.pdf; Office of
Immigration Statistics, 2011 Yearbook of Immigration Statistics, Table
7. Persons Obtaining Legal Permanent Resident Status by Type and
Detailed Class of Admission: Fiscal Year 2011, U.S. Dep't of Homeland
Security (Sep. 2012), https://www.dhs.gov/sites/default/files/
publications/ois_yb_2011.pdf; Office of Immigration Statistics, 2012
Yearbook of Immigration Statistics, Table 7. Persons Obtaining Legal
Permanent Resident Status by Type and Detailed Class of Admission:
Fiscal Year 2012, U.S. Dep't of Homeland Security (July 2013), https://
www.dhs.gov/sites/default/files/publications/
Yearbook_Immigration_Statistics_2012.pdf; Office of Immigration
Statistics, 2013 Yearbook of Immigration Statistics, Table 7. Persons
Obtaining Legal Permanent Resident Status by Type and Detailed Class of
Admission: Fiscal Year 2013, U.S. Dep't of Homeland Security (Aug.
2014), https://www.dhs.gov/sites/default/files/publications/
Yearbook_Immigration_Statistics_2013_0.pdf; Office of Immigration
Statistics, 2014 Yearbook of Immigration Statistics, Table 7. Persons
Obtaining Legal Permanent Resident Status by Type and Detailed Class of
Admission: Fiscal Year 2014, U.S. Dep't of Homeland Security (Aug.
2016), https://www.dhs.gov/sites/default/files/publications/
DHS%202014%20Yearbook.pdf; Office of Immigration Statistics, 2015
Yearbook of Immigration Statistics, Table 7. Persons Obtaining Legal
Permanent Resident Status by Type and Detailed Class of Admission:
Fiscal Year 2015, U.S. Dep't of Homeland Security (Dec. 2016), https://
www.dhs.gov/sites/default/files/publications/
Yearbook_Immigration_Statistics_2015.pdf; Office of Immigration
Statistics, 2016 Yearbook of Immigration Statistics, Table 7. Persons
Obtaining Legal Permanent Resident Status by Type and Detailed Class of
Admission: Fiscal Year 2016, U.S. Dep't of Homeland Security (Nov.
2017), https://www.dhs.gov/sites/default/files/publications/
2016%20Yearbook%20of%20Immigration%20Statistics.pdf; Office of
Immigration Statistics, 2017 Yearbook of Immigration Statistics, Table
7. Persons Obtaining Legal Permanent Resident Status by Type and
Detailed Class of Admission: Fiscal Year 2017, U.S. Dep't of Homeland
Security (July 2019), https://www.dhs.gov/sites/default/files/
publications/yearbook_immigration_statistics_2017_0.pdf; Office of
Immigration Statistics, 2018 Yearbook of Immigration Statistics, Table
7. Persons Obtaining Legal Permanent Resident Status by Type and
Detailed Class of Admission: Fiscal Year 2018, U.S. Dep't of Homeland
Security (Oct. 2019), https://www.dhs.gov/sites/default/files/
publications/immigration-statistics/yearbook/2018/
yearbook_immigration_statistics_2018.pdf; Office of Immigration
Statistics, 2019 Yearbook of Immigration Statistics, Table 7. Persons
Obtaining Legal Permanent Resident Status by Type and Detailed Class of
Admission: Fiscal Year 2019, U.S. Dep't of Homeland Security (Sep.
2020), https://www.dhs.gov/sites/default/files/publications/
immigration-statistics/yearbook/2019/
yearbook_immigration_statistics_2019.pdf; Office of Immigration
Statistics, 2020 Yearbook of Immigration Statistics, Table 7. Persons
Obtaining Legal Permanent Resident Status by Type and Detailed Class of
Admission: Fiscal Year 2020, U.S. Dep't of Homeland Security (Apr.
2022), https://www.dhs.gov/sites/default/files/2022-07/
2022_0308_plcy_yearbook_immigration_statistics_fy2020_v2.pdf; Office of
Immigration Statistics, 2021 Yearbook of Immigration Statistics, Table
7. Persons Obtaining Legal Permanent Resident Status by Type and
Detailed Class of Admission: Fiscal Year 2021, U.S. Dep't of Homeland
Security (Nov. 2022), https://www.dhs.gov/sites/default/files/2023-03/
2022_1114_plcy_yearbook_immigration_statistics_fy2021_v2_1.pdf.
---------------------------------------------------------------------------
Instances of fraud in the SIJ program are frequent. For
instance, a 2015 investigation by News 4 New York, an NBC
affiliate, ``revealed that family court insiders allege a
pattern in Queens in which a federal law intended to protect
child victims of abuse or sex trafficking is exploited as a
shortcut to legal immigration status.''\175\ According to News
4:
---------------------------------------------------------------------------
\175\Russo et al., supra note 168.
Hundreds of young men from the same part of India
have told strikingly similar stories in Queens Family
Court, the I-Team learned from months of interviews
with judges, clerks, lawyers[,] and translators who
work the cases. Judges tell the I-Team they fear these
undocumented young men are illegally crossing the U.S.
border with the knowledge that they can head to family
court for help getting special immigration status.
As part of that process, the young men, appearing in
court often with older men from the neighborhood
petitioning for guardianship, recount tales of abuse
they've suffered to judges. If the young men are under
age 21, undocumented and unmarried, abused or abandoned
by just one parent and say their lives will be better
off in the United States, judges, having little
recourse to verify their stories, most often approve
the guardianship, paving a fast track to green cards
for the men under the federal William Wilberforce
Trafficking Victims Protection Act.
The number of guardianship cases in Queens went up 75
percent from 2013 to 2014--from 503 such cases to 882--
an increase not seen in other boroughs' family courts.
Some insiders alleged the guardians are paid
illegally, in some cases by the families of the young
men, to perform the role of hospitable caretakers
during those hearings.\176\
---------------------------------------------------------------------------
\176\Id.
In one instance, at least 14 different young men with the
same name, Amandeep Singh, and from the same region in Punjab,
India, appeared in a Queens, New York City family courthouse to
seek a determination of their dependency on the state and to
ultimately obtain an SIJ.\177\ State-level family courts are
effectively being used as rubber stamps for these claims, as
once a determination is made that the juvenile is dependent on
the state, the alien minors can simply apply to adjust their
status to that of a lawful permanent resident.\178\
---------------------------------------------------------------------------
\177\Russo et al., supra note 168.
\178\Id.
---------------------------------------------------------------------------
Additionally, because aliens are only eligible for SIJs
until age 21, SIJs are often sought at a hurried pace known as
``birthday emergencies.''\179\ These emergency hearings then
necessarily delay the marital and custody disputes family
courts otherwise hear.\180\
---------------------------------------------------------------------------
\179\Id.
\180\Id.
---------------------------------------------------------------------------
Former and current Members of Congress have expressed
concerns about abuse of the SIJ program. As News 4 noted in
2015, then-Representative Peter King stated, ``It's a total
abuse of the law and it's a scam,'' and described that the
law's intent was to protect alien minors who were victims of
trafficking.\181\ Then-Judiciary Committee Chairman Bob
Goodlatte wrote in 2015 to then-DHS Secretary Jeh Johnson
demanding that the Secretary take steps to prevent fraud in the
program.\182\ Even Senator Chuck Schumer noted, ``They're gonna
want to know why did such a large number of people from one
particular part of the globe get so many of these visas when
the visas are usually quite rare.''\183\
---------------------------------------------------------------------------
\181\Id.
\182\Letter from Rep. Bob Goodlatte, Chairman, H. Comm. on the
Judiciary, to Jeh Johnson, Sec'y, U.S. Dep't of Homeland Security (Mar.
19, 2015), https://judiciary.house.gov/media/press-releases/goodlatte-
to-secretary-johnson-changes-needed-to-reduce-fraud-in-immigration.
\183\Russo et al., supra note 168.
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In addition to fraudsters, criminal gang members have
exploited the SIJ program. For example, in 2018 during
``Operation Matador,'' U.S. Immigration and Customs Enforcement
arrested 475 criminals involved with the dangerous MS-13
gang.\184\ Ninety-nine of those arrested entered the U.S. as
UACs and of those, ``64 individuals arrested during [the]
operation obtained Special Immigrant Juvenile Status (SIJ)
after entering the country, all of which were confirmed as MS-
13 gang members.''\185\
---------------------------------------------------------------------------
\184\U.S. Immigration and Customs Enforcement, Joint Operation nets
24 transnational gang members, 475 total arrests under Operation
Matador, U.S. Dep't of Homeland Security (March 29, 2018), https://
www.ice.gov/news/releases/joint-operation-nets-24-transnational-gang-
members-475-total-arrests-under-operation.
\185\Id.
---------------------------------------------------------------------------
v. Title IV of H.R. 2640 in Practice
Title IV of H.R. 2640 provides long-awaited reforms to UAC
procedures. This title ends the disparate treatment of UACs
from Mexico and Canada compared to children from the rest of
the world. It creates uniform rules for all UACs apprehended at
the border, enabling their safe and expeditious return absent
indications of trafficking or a credible fear of persecution.
Title IV also provides additional safeguards to UACs by
mandating that HHS provide DHS with biographical information
regarding the sponsors or family members to whom the minors are
released. Title IV also clarifies that special immigrant green
cards are available only to juveniles who have been lost or
abandoned by both parents, reserving this status for the
children truly in need of it.
F. Background of Visa Overstays
i. Overview of Visa Overstays
Foreign visitors to the United States must either obtain a
nonimmigrant visa to legally visit the United States
temporarily or, if they are a resident of one of the forty Visa
Waiver Program countries, be authorized to travel to the U.S.
through the Electronic System for Travel Authorization (ESTA)
for no more than 90 days.\186\ The United States welcomes tens
of millions of foreigners with nonimmigrant visas to the United
States legally each year.\187\ Nearly all these visitors depart
the United States on time.\188\
---------------------------------------------------------------------------
\186\U.S. Customs and Border Protection, Visa Waiver Program, U.S.
Dep't of Homeland Security (last accessed Mar. 21, 2023), https://
www.cbp.gov/travel/international-visitors/visa-waiver-program.
\187\Office of Immigration Statistics, Yearbook of Immigration
Statistics 2021, Table 25. Nonimmigrant Admissions by Class of
Admission: Fiscal Years 2012 to 2021, U.S. Dep't of Homeland Security
(Nov. 2022), https://www.dhs.gov/immigration-statistics/yearbook/2021.
\188\U.S. Customs and Border Protection, U.S. Dep't of Homeland
Security, Fiscal Year 2020 Entry/Exit Overstay Report (Sept. 30, 2021),
https://www.dhs.gov/sites/default/files/2021-12/CBP%20-
%20FY%202020%20Entry%20Exit%20Overstay%20Report_0.pdf [hereinafter CBP
Fiscal Year 2020 Entry/Exit Overstay Report].
---------------------------------------------------------------------------
Visa overstays refer to foreign nationals who do not depart
the United States when required to do so by the terms of their
visa. DHS counts visa overstays for both foreign nationals who
leave the country after the authorization for them to visit the
United States expires (out-of-country visa overstays) and
foreign nationals who do not leave the United States (in-
country visa overstays).\189\
---------------------------------------------------------------------------
\189\Id.
---------------------------------------------------------------------------
In FY 2020, more than 46 million foreigners visited the
United States and entered through either sea or air ports of
entry.\190\ According to CBP, more than 584,000 individuals, or
1.27 percent of the total number of visitors arriving at sea
and air ports of entry, were suspected in-country overstays in
FY 2020.\191\
---------------------------------------------------------------------------
\190\Id.
\191\CBP Fiscal Year 2020 Entry/Exit Overstay Report, supra note
188.
---------------------------------------------------------------------------
ICE is the lead agency for identifying, investigating, and
removing in-country visa overstays. Other components of DHS
tasked with helping prevent visa overstays are CBP and USCIS.
ii. Efforts To Address Visa Overstays and Current Law
Congress and the Executive Branch have worked over the last
20 years to address weaknesses and challenges with visa
overstays, given that overstays represent a significant number
of illegal aliens inside the United States and that several of
the September 11th hijackers overstayed their visas.\192\ For
instance, Congress mandated the creation and maintenance of a
biometric electronic entry/exit system in multiple laws,
including the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 and the Enhanced Border Security and
Visa Entry Reform Act of 2002.\193\
---------------------------------------------------------------------------
\192\National Commission on Terrorist Attacks, Entry of the 9/11
Hijackers into the United States: Staff Statement No. 1. (Jan. 26,
2004), https://govinfo.library.unt.edu/911/staff_statements/
staff_statement_1.pdf.
\193\Enhanced Border Security and Visa Entry Reform Act of 2002,
Pub. L. 107-173, 116 Stat. 1757 (May 14, 2002).
---------------------------------------------------------------------------
Under current law, there are immigration-related penalties
available for the federal government to levy against visa
overstayers, but there are no such criminal penalties. These
immigration penalties generally apply to all individuals who
are unlawfully present in the United States and not just visa
overstays.\194\ Existing penalties include:
---------------------------------------------------------------------------
\194\8 U.S.C. Sec. 1182(a)(9).
---------------------------------------------------------------------------
Individuals overstaying their visa by at
least 180 days but less than one year can be barred
from re-entry to the United States for three years
(also known as the 3-year bar).\195\
---------------------------------------------------------------------------
\195\8 U.S.C. Sec. 1182(a)(9)(B)(i)(I).
---------------------------------------------------------------------------
Individuals overstaying their visa by one
year (continuous) but leaving before being removed can
be barred from re-entry to the United States for ten
years (also known as the 10-year bar).\196\
---------------------------------------------------------------------------
\196\8 U.S.C. Sec. 1182(a)(9)(B)(i)(II).
---------------------------------------------------------------------------
Individuals removed or unlawfully present in
the United States for more than one year are
permanently barred from re-entry to the United
States.\197\
---------------------------------------------------------------------------
\197\8 U.S.C. Sec. 1182(a)(9)(C)(i)(I).
---------------------------------------------------------------------------
These penalties do not effectively deter visa overstays.
Over half a million individuals have overstayed their visas
each year from FY 2015 to FY 2020, which is the most recent
data available.\198\
---------------------------------------------------------------------------
\198\CBP Fiscal Year 2020 Entry/Exit Overstay Report, supra note
188.
---------------------------------------------------------------------------
iii. Statements in Support of Visa Overstay Reform
For many years, Democrats have minimized the seriousness of
massive influxes of illegal immigrants crossing into the United
States at our porous southwest border by pointing out that
large numbers of illegal immigrants overstay their visas.
President Biden has stated the following on his campaign
website for president: ``It's estimated that nearly half of the
undocumented people living in the U.S. today have overstayed a
visa, not crossed a border illegally.''\199\
---------------------------------------------------------------------------
\199\The Biden Plan for Securing Our Values as a Nation of
Immigrants, Biden-Harris Campaign (last accessed Mar. 21, 2023),
https://joebiden.com/immigration/#.
---------------------------------------------------------------------------
In May 2017, Representative Bennie Thompson, Ranking Member
of the House Homeland Security, stated his concerns about not
enough attention being given to visa overstays:
[I]t is worth noting this overstay figure far exceeds
the approximately 331,000 individuals apprehended
entering the United States along the Southern Border
over the same time period. President Trump is so busy
trying to build his ``big, beautiful wall'' in a
misguided attempt to curb illegal immigration, I am
concerned his administration will lose focus on dealing
with those who come into the United States on a visa,
through the proverbial front door, and remain in this
country.\200\
---------------------------------------------------------------------------
\200\Visa Overstays: A Gap in the Nation's Border Security: Hearing
Before the Subcomm. on Border and Maritime Security of the H. Comm. on
Homeland Security, 115th Cong. 5 (2017) (statement of Rep. Bennie
Thompson, Ranking Member, H. Comm. on Homeland Security).
In 2013, Representative Sheila Jackson Lee talked about the
importance of dealing with the problem of visa overstays and
---------------------------------------------------------------------------
its relation to overall border security:
It is important to note that overstays are one of the
reasons for many questions on the immigration control
system. A small handful of those who overstay their
visas may also pose a threat, as I mentioned earlier,
as it relates to the 9/11 hijackers . . . America's
borders will only be secure when we address not only
those who walk through the desert to come here but also
those who arrived in this country through our front
door.\201\
---------------------------------------------------------------------------
\201\Visa Security and Overstays: How Secure is America?: Hearing
Before the Subcomm. on Border and Maritime Security of the H. Comm. on
Homeland Security, 113th Cong. 6 (2013) (statement of Rep. Sheila
Jackson Lee, Ranking Member, Subcomm. on Border and Maritime Security,
H. Comm. on Homeland Security).
---------------------------------------------------------------------------
vi. Title V of H.R. 2640 in Practice
Title V of H.R. 2640 addresses these bipartisan concerns
and disincentivizes aliens from overstaying their visas by
subjecting visa overstayers to a criminal misdemeanor penalty,
a criminal fine, and a civil monetary penalty.
G. Background on Immigration Parole
i. History of Parole under Section 212(d) of the Immigration and
Nationality Act
In 1952, Congress created the immigration parole authority
to allow aliens without legal means to enter the United States
a way to do so for a temporary period.\202\ Over time,
administrations began to abuse parole authority, using it to
admit large classes of aliens not otherwise admissible to the
United States, for an indefinite period.\203\
---------------------------------------------------------------------------
\202\Immigration and Nationality Act, Pub. L. 82-414, 66 Stat 163
(June 27, 1952).
\203\Adam Cox and Cristina Rodriguez, The President and Immigration
Law Redux, 125 Yale L.J. 104, 116-17 (2015).
---------------------------------------------------------------------------
In 1996, in response to increasing abuses by the Executive
Branch, Congress placed explicit restrictions on the parole
authority.\204\ Those restrictions--codified in Section 212(d)
of the INA--require that parole be used only on a ``case-by-
case basis for urgent humanitarian reasons or significant
public benefit.''\205\ In 2011, the U.S. Court of Appeals for
the Second Circuit in Cruz-Miguel v. Holder noted that the
clear intent underlying the 1996 change to the parole statute
``was animated by concern that parole under [section
212(d)(5)(A)] was being used by the executive to circumvent
congressionally established immigration policy.''\206\
---------------------------------------------------------------------------
\204\INA Sec. 212(d)(5)(A), 8 U.S.C. Sec. 1182(d)(5)(A).
\205\Id.
\206\Cruz-Miguel v. Holder, 650 F.3d 189, 199 n.15 (2d Cir. 2011);
see H.R. Rep. No. 104-169, pt. 1, at 140-41 (1996).
---------------------------------------------------------------------------
Administrations continued to abuse parole authority, for
instance, in 2014, the Obama Administration created the Central
American Minors Program to provide a path into the United
States for certain children and certain family members from the
northern triangle countries who were not eligible for refugee
status.\207\ That same year the Obama Administration created
the Haitian Family Reunification Parole Program for Haitians
nationals with family members inside the United States.\208\
---------------------------------------------------------------------------
\207\U.S. Citizenship and Immigration Servs., Central American
Minors Program, U.S. Dep't of Homeland Security (last accessed May 1,
2023), https://www.uscis.gov/CAM.
\208\U.S. Citizenship and Servs., Haitian Family Reunification
Parole Program, U.S. Dep't of Homeland Security (last accessed May 1,
2023), https://www.uscis.gov/humanitarian/humanitarian-parole/the-
haitian-family-reunification-parole-hfrp-program.
---------------------------------------------------------------------------
ii. Abuse of Immigration Parole Authority by the Biden Administration
The Biden Administration has abused its immigration parole
authority almost from day one, having paroled in over a million
aliens since then.\209\ Despite current law that requires the
detention of aliens who illegal cross the border seeking
asylum, the Administration began simply releasing those aliens
on ``Parole+ATD'' or ``conditional parole.''\210\
---------------------------------------------------------------------------
\209\George Fishman, Parole with Benefits, Center for Immigration
Studies (Apr. 13, 2023), https://cis.org/Report/Parole-Benefits.
\210\Andrew R. Arthur, CBP Document Details Mass Release of Illegal
Aliens Under Biden, Center for Immigration Studies (Sept. 27, 2023),
https://cis.org/Arthur/CBP-Document-Details-Mass-Release-Illegal-
Aliens-under-Biden.
---------------------------------------------------------------------------
The Biden Administration has also created several new
categorical parole programs. For instance, in late 2022 and
early 2023, the Administration created categorical parole
programs that allow up to 30,000 aliens per month from Haiti,
Venezuela, Nicaragua, and Cuba to enter the U.S. through ports
of entry and remain in the U.S.\211\ During the month of
January 2023, there were 11,637 aliens paroled into the U.S.
through the program.\212\ Those numbers were 22,755, and 27,783
respectively for February and March 2023.\213\ In addition, on
April 27, 2023, the Administration announced the creation of
parole programs for nationals of El Salvador, Guatemala,
Honduras, and Colombia.\214\
---------------------------------------------------------------------------
\211\U.S. Citizenship and Immigration Servs., Processes for Cubans,
Haitians, Nicaraguans, and Venezuelans, U.S. Dep't of Homeland Security
(last accessed Feb. 16, 2023), https://www.uscis.gov/CHNV.
\212\Information provided by U.S. Dep't of Homeland Security, on
file with Committee.
\213\Id.
\214\Fact Sheet: U.S. Government Announces Sweeping New Actions to
Manage Regional Migration, U.S. Dep't of State (Apr. 27, 2023), https:/
/www.state.gov/u-s-government-announces-sweeping-new-actions-to-manage-
regional-migration/.
---------------------------------------------------------------------------
On January 24, 2023, in response to the Biden
Administration's illegal use of parole authority, 20
Republican-led states sued the Biden Administration to block
the categorical parole programs, arguing these programs equate
to an illegal abuse of the ``case-by-case basis'' requirement
in the INA and violate notice-and-comment rulemaking
requirements under the Administrative Procedure Act.\215\ On
March 8, 2023, a federal district court in Florida held that
the Biden Administration's use of Parole+ATD to release masses
of illegal aliens encountered at the southwest border is
illegal.\216\
---------------------------------------------------------------------------
\215\Camilo Montoya-Galvez, 20 GOP-led states ask federal judge to
halt migrant sponsorship program, CBS NEWS (Jan. 24, 2023, 8:48 P.M.),
https://www.cbsnews.com/news/immigration-migrant-sponsorship-lawsuit-
republican-states/.
\216\Florida v. U.S., 3:21-cv-1066-TKW-ZCB (N.D. Fla. Mar. 8,
2023).
---------------------------------------------------------------------------
Secretary Mayorkas bragged that bringing illegal aliens
into the United States via other routes such as parole is
``working'' to help secure the border.\217\ However, on March
12, 2023, over 1,000 migrants from Venezuela (one of the
categorical parole program countries) rushed and nearly
breached the El Paso Port of Entry.\218\ CBP officials had to
close the port to all traffic to restore security. In addition,
in late April 2023, nearly 21,000 Venezuelan nationals crossed
illegally into the Rio Grande Valley Border Patrol Sector in
just 12 days.\219\
---------------------------------------------------------------------------
\217\Unlawful Southwest Border Crossings Plummet Under New Border
Enforcement Measures, U.S. Dep't of Homeland Security (Jan. 25, 2023),
https://www.dhs.gov/news/2023/01/25/unlawful-southwest-border-
crossings-plummet-under-new-border-enforcement-measures.
\218\Greg Wehner, Border Crisis: Over 1,000 migrants rush bridge
linking Mexico to US in El Paso, Texas, FOX NEWS, (Mar. 12, 2023)
https://www.foxnews.com/politics/border-crisis-migrants-rush-bridge-
linking-mexico-u-s-el-paso-texas-video.
\219\Bob Price and Randy Clark, Exclusive: 21K Venezuelan migrants
in 12 days crossed border into one Texas sector, Breitbart (Apr. 30,
2023), https://www.breitbart.com/border/2023/04/30/exclusive-21k-
venezuelan-migrants-in-12-days-crossed-border-into-one-texas-sector/.
---------------------------------------------------------------------------
iii. Title VI of H.R. 2640 in Practice
Title VI of H.R. 2640 returns the parole authority to its
historical purpose, limits the Executive's ability to abuse
parole to mass release aliens into the United States, and
preserves parole for truly deserving circumstances.
H. Employment Eligibility Verification
According to the Bureau of Labor Statistics, there are 5.8
million unemployed people in the United States and another 4.9
million more who are not in the labor force but who want a
job.\220\ Over 350,000 of them are ``discouraged workers'' who
``believed that no jobs were available for them.''\221\
Meanwhile, millions of illegal aliens are employed in the
U.S.\222\
---------------------------------------------------------------------------
\220\Bureau of Labor Statistics, The Employment Situation--March
2023, U.S. Dep't of Labor (Apr. 7, 2023), https://www.bls.gov/
news.release/pdf/empsit.pdf.
\221\Id.
\222\Jens Manuel Hrogstad, Jeffrey S. Passel, and D'Vera Cohn, 5
Facts About Illegal Immigration in the U.S., Pew Research Center (June
12, 2019), https://www.pewresearch.org/short-reads/2019/06/12/5-facts-
about-illegal-immigration-in-the-u-s/.
---------------------------------------------------------------------------
i. Legislation related to Employment Eligibility Verification
In 1986, Congress passed the Immigration Reform and Control
Act of 1986 (IRCA), in part to end the job magnet for illegal
immigration. Specifically, the bill made it unlawful for
employers to knowingly hire or employ aliens who are not
eligible to work in the United States.\223\ It also required
employers to check the identity and work eligibility documents
of all new employees.\224\
---------------------------------------------------------------------------
\223\8 U.S.C. Sec. 1324a.
\224\Id.
---------------------------------------------------------------------------
Under the IRCA, if the identity and work authorization
documents provided by an employee to an employer reasonably
appear on their face to be genuine, the employer has met their
document review obligation.\225\ The employer and employee must
then fill out the Form I-9 with the employee's identifying
information and the employer must attest under penalty of
perjury that (1) the employer has ``examined the document(s)
presented by the . . . employee; (2) the . . . document(s)
appear to be genuine and to relate to the employee named; and
(3) to the best of the employer's ``knowledge the employee is
authorized to work in the United States.''\226\ Certain
documents, such as passports and resident alien cards,
establish both identity and work eligibility.\227\ Others, such
as most Social Security cards, establish work eligibility. And
still others, such as driver's licenses, establish
identity.\228\
---------------------------------------------------------------------------
\225\Id.
\226\U.S. Citizenship and Immigration Servs., Form I-9 at 2, U.S.
Dep't of Homeland Security (Oct. 21, 2019), https://www.uscis.gov/
sites/default/files/document/forms/i-9.pdf.
\227\Id. at 3.
\228\Id.
---------------------------------------------------------------------------
If a new hire produces the required documents, the employer
is not required to request that they produce additional
documents, and the employee is not required to produce
additional documents. In fact, an employer's request for more
or different documents than are required, or refusal to honor
documents that reasonably appear to be genuine, is treated as
an ``unfair immigration-related employment practice if made for
the purpose or with the intent of discriminating against an
individual because of such individual's national origin or
citizenship status.''\229\
---------------------------------------------------------------------------
\229\8 U.S.C. Sec. 1324b.
---------------------------------------------------------------------------
The easy availability of counterfeit documents has made a
mockery of the IRCA. Fake documents are produced by millions
and can be obtained cheaply.\230\ Thus, the IRCA system both
benefits unscrupulous employers who do not mind hiring unlawful
aliens but want to show that they have met the legal
requirements and harms employers who do not want to hire
illegal aliens but have no choice but to accept documents they
know have a likelihood of being counterfeit.
---------------------------------------------------------------------------
\230\See, e.g., Benefit and Employment Eligibility Verification:
Hearing Before the Subcomm. on Immigration and Claims of the H. Comm.
on the Judiciary, 104th Cong., 1st Sess. (Mar. 30, 1995).
---------------------------------------------------------------------------
In response to the deficiencies of the IRCA, Title IV of
the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (IIRIRA) instituted three voluntary employment
eligibility confirmation pilot programs for employers.\231\
Under the ``basic pilot program,'' the proffered Social
Security Numbers and alien identification numbers of new hires
would be checked against Social Security Administration (SSA)
and Immigration and Naturalization Service records to help
ensure that new hires are genuinely eligible to work.\232\ The
pilot was available to employers having locations in
California, Florida, Illinois, Nebraska, New York, and Texas.
---------------------------------------------------------------------------
\231\Pub. L. 104-208, 110 Stat. 3009 at Division C Sec. 401 (Sept.
30, 1996).
\232\Id. at Division C, Sec. 403.
---------------------------------------------------------------------------
Congress extended the operation of the program in 2002. In
2003, Congress extended its operation through November 2008 and
required that it be made available to employers nationwide no
later than December 1, 2004.\233\ Known since 2007 as E-Verify,
the program has been renewed several times and remains
operational today.
---------------------------------------------------------------------------
\233\Basic Pilot Extension Act of 2001, Pub. L. 107-128, 115 Stat.
2407 (Jan. 16, 2002); Basic Pilot Program Extension and Expansion Act
of 2003, Pub. L. 108-156, 117 Stat. 1944 (Dec. 3, 2003).
---------------------------------------------------------------------------
ii. E-Verify
Nearly 1.1 million employers, representing over 3.1 million
worksites, are currently enrolled in E-Verify.\234\ In FY 2022,
49 million cases were run through E-Verify.\235\ So far in FY
2023, more than 14.5 million cases have been run, and U.S.
Citizenship and Immigration Services projects that number will
be 50 million by the end of the fiscal year.\236\ Employers
required to use E-Verify include the Federal government and
Legislative Branch,\237\ certain federal contractors,\238\ and
employers of certain immigrant students who study science,
technology, engineering, or mathematics while engaged in
Optional Practical Training.\239\ In addition, some state
governments, such as those in Arizona, Alabama, Idaho,
Minnesota, and Georgia, have required certain employers to use
E-Verify.\240\ USCIS maintains a searchable database of
employers who use E-Verify.\241\
---------------------------------------------------------------------------
\234\E-Verify, E-Verify Usage Statistics, U.S. Dep't of Homeland
Security (last accessed May 2, 2023), https://www.e-verify.gov/about-e-
verify/e-verify-data/e-verify-usage-statistics.
\235\Id.
\236\Id.
\237\Pub. L. 104-208, 110 Stat. 3009 at Division C Sec. 402(C)
(Sept. 30, 1996).
\238\Amending Executive Order 12989, as Amended, 73 Fed. Reg. 33285
(June 6, 2008), https://www.govinfo.gov/content/pkg/FR-2008-06-11/pdf/
08-1348.pdf.
\239\8 C.F.R. Sec. 214.2(f)(10)(C)(3).
\240\E-Verify, About E-Verify, History and Milestones, U.S. Dep't
of Homeland Security (last accessed Mar. 20, 2023), https://www.e-
verify.gov/about-e-verify/history-and-milestones [hereinafter E-Verify
History and Milestones].
\241\E-Verify, About E-Verify, How to Find Participating Employers,
U.S. Dep't of Homeland Security (last accessed Mar. 20, 2023), https://
www.e-verify.gov/about-e-verify/e-verify-data/how-to-find-
participating-employers.
---------------------------------------------------------------------------
USCIS' 2020 Annual Customer Satisfaction Survey (CSI) found
E-Verify user satisfaction was 87 out of 100.\242\ According to
USCIS, the E-Verify CSI ``has remained relatively constant over
the last seven years.''\243\
---------------------------------------------------------------------------
\242\U.S. Citizenship and Immigration Servs., Department of
Homeland Security U.S. Citizenship and Immigration Services E-Verify
Program, 2020 Annual Customer Satisfaction Survey Briefing at 9, U.S.
Dep't of Homeland Security (Feb. 2021), https://www.e-verify.gov/sites/
default/files/everify/data/EVerifyCustomerSatisfactionSurvey2020.pdf.
\243\Id. at 10.
---------------------------------------------------------------------------
E-Verify works as follows for the vast majority of
users:\244\
---------------------------------------------------------------------------
\244\See generally 8 U.S.C. Sec. Sec. 403(a) and 404.
---------------------------------------------------------------------------
Before beginning to use E-Verify, an
employer must enter into a Memorandum of Understanding
with DHS and SSA.\245\ Under current law, once an
applicant has accepted a job offer, the employee
presents certain identification and work authorization
documents to the employer.\246\ The employer, within
three business days after the hire, must examine the
documents to determine whether they reasonably appear
on their face to be genuine and must complete an I-9
form attesting to this examination.\247\
---------------------------------------------------------------------------
\245\E-Verify, The Enrollment Process, U.S. Dep't of Homeland
Security (last accessed Mar. 20, 2023), https://www.e-verify.gov/
employers/enrolling-in-e-verify/the-enrollment-process.
\246\8 U.S.C. Sec. 1324a.
\247\U.S. Citizenship and Immigration Servs, I-9 Central,
Completing Section 2, Employer Review and Attestation, U.S. Dep't of
Homeland Security (last accessed Apr. 27, 2023), https://www.uscis.gov/
i-9-central/complete-correct-form-i-9/completing-section-2-employer-
review-and-attestation.
---------------------------------------------------------------------------
For employers who use E-Verify, within the
same three days, but after the I-9 is completed, the
employer must make an E-Verify query.\248\ If the new
hire claims to be a citizen, the employer will transmit
his or her name and Social Security number. If the new
hire claims to be a non-citizen, the employer will
transmit his or her name, DHS-issued number, and Social
Security number.
---------------------------------------------------------------------------
\248\E-Verify, Verification Process, U.S. Dep't of Homeland
Security (last accessed Mar. 20, 2023), https://www.e-verify.gov/
employers/verification-process.
---------------------------------------------------------------------------
The E-Verify confirmation office will
compare the name and Social Security number provided
against information contained in SSA records and, if
necessary, will compare the name and DHS-issued number
provided against information contained in DHS records.
If, in checking the records, the
confirmation office ascertains that the new hire is
eligible to work, the system will inform the employer
and provide a confirmation number.
If the confirmation office cannot confirm
the work eligibility of the new hire, it will inform
the employer of a tentative non-confirmation (TNC). The
employer will receive a Further Action Notice (FAN),
which relays what steps the employer must take
next.\249\
---------------------------------------------------------------------------
\249\E-Verify, Tentative Nonconfirmations (Mismatches) Overview,
U.S. Dep't of Homeland Security (last accessed Mar. 20, 2023), https://
www.e-verify.gov/employees/tentative-nonconfirmation-mismatch-overview
[hereinafter E-Verify Tentative Nonconfirmations].
---------------------------------------------------------------------------
A TNC can occur for a number of reasons,
including that the employee did not report a name
change to SSA, the employer entered the employee's
information into the system incorrectly, the
citizenship or immigration status of the employee
changed, or the information entered could not be
verified.\250\
---------------------------------------------------------------------------
\250\E-Verify, E-Verify User Manual, 3.3 Tentative Nonconfirmation
(Mismatch), U.S. Dep't of Homeland Security (last accessed Mar. 20,
2023), https://www.e-verify.gov/e-verify-user-manual-30-case-results/
33-tentative-nonconfirmation-mismatch [hereinafter E-Verify User Manual
Tentative Nonconfirmation].
---------------------------------------------------------------------------
Those steps include notifying the employee
of the mismatch within 10 days, providing the FAN to
the employee, and confirming with the employee that the
information the employee provided is correct.\251\
---------------------------------------------------------------------------
\251\E-Verify Tentative Nonconfirmations, supra note 249.
---------------------------------------------------------------------------
If the new hire wants to contest a TNC, they
must do so within eight federal government workdays of
the date on the further action notice.\252\ This
process, called secondary verification, is an expedited
procedure set up to confirm the validity of information
contained in the government records and provided by the
new hire. Under this process, the new hire contacts or
visits SSA and/or contacts DHS to see why the
government records disagree with the information the
employee provided. If the new hire requests secondary
verification, they cannot be fired on the basis of the
TNC.\253\
---------------------------------------------------------------------------
\252\E-Verify, Tentative Nonconfirmations (Mismatches), Related
FAQs, U.S. Dep't of Homeland Security (last accessed Mar. 20, 2023),
https://www.e-verify.gov/employers/verification-process/tentative-
nonconfirmations-mismatches.
\253\E-Verify User Manual Tentative Nonconfirmation, supra note
250.
---------------------------------------------------------------------------
If the discrepancy can be reconciled within
ten days, then confirmation of work eligibility and a
confirmation number will be given to the employer by
the end of this period.
If the discrepancy cannot be reconciled
within ten days, a final denial of confirmation and a
final non-confirmation (FNC) is provided to the
employer.\254\ The employer then has two options:
---------------------------------------------------------------------------
\254\E-Verify, E-Verify User Manual, 3.6 Final Nonconfirmation,
U.S. Dep't of Homeland Security (last accessed Mar. 20, 2023), https://
www.e-verify.gov/e-verify-user-manual-30-case-results/36-final-
nonconfirmation.
---------------------------------------------------------------------------
(1) The employer can dismiss the new hire as being
ineligible to work in the United States;\255\ or
---------------------------------------------------------------------------
\255\Id.
---------------------------------------------------------------------------
(2) The employer can continue to employ the new hire. The
employer must notify DHS of this decision. If action is brought
by the government, the employer has the burden of proof showing
the new hire is eligible to work. If the employer fails to so
prove this, the employer will be deemed to have knowingly hired
an illegal immigrant.\256\
---------------------------------------------------------------------------
\256\8 U.S.C. Sec. 1324a, note.
---------------------------------------------------------------------------
If the employee believes that the FNC has
been issued in error, DHS and SSA will continue working
with the employee to help resolve the situation. In
these cases, ``the employer or employee can call E-
Verify to appeal or request further review'' and ``the
mismatch issue will determine the length of time it
takes to resolve the issue.''\257\
---------------------------------------------------------------------------
\257\Information provided to Committee Staff by U.S. Citizenship
and Immigration Servs.
---------------------------------------------------------------------------
SSA and DHS are required to safeguard the information
provided to them by employers and to limit access to the
information as appropriate by law.\258\ An employer must agree
not to use the pilot for pre-employment screening of job
applicants or for support of any unlawful employment practice,
not to verify selectively, and to ensure that the information
it receives from the government is used only to confirm
employment eligibility and is not otherwise disseminated.\259\
---------------------------------------------------------------------------
\258\8 U.S.C. Sec. 1324a, note.
\259\E-Verify, E-Verify User Manual, 1.5 User Rules and
Responsibilities, U.S. Dep't of Homeland Security (last accessed Mar.
20, 2023), https://www.e-verify.gov/e-verify-user-manual-10-
introduction/15-user-rules-and-responsibilities.
---------------------------------------------------------------------------
USCIS continuously adds new features to E-Verify to improve
the program's accuracy, effectiveness, and usability. For
instance:\260\
---------------------------------------------------------------------------
\260\Information provided to Committee Staff by U.S. Citizenship
and Immigration Servs.
---------------------------------------------------------------------------
In September 2007, USCIS introduced the
photo-matching tool in which USCIS allowed access to
the photos from immigrant visas and employment
authorization documents for the E-Verify database.\261\
Employers can now match the photo in E-Verify to the
photo on the identity document presented by the
employee.
---------------------------------------------------------------------------
\261\E-Verify History and Milestones, supra note 240.
---------------------------------------------------------------------------
In 2009, USCIS incorporated State Department
passport data into E-Verify to help reduce the number
of mismatches among foreign-born citizens.\262\ E-
Verify had been criticized because naturalized U.S.
citizens had a higher rate of TNC than native-born U.S.
citizens.
---------------------------------------------------------------------------
\262\Andorra Bruno, Cong. Research Serv., R40446, Electronic
Employment Eligibility Verification (June 6, 2018), https://
crsreports.congress.gov/product/pdf/R/R40446/13.
---------------------------------------------------------------------------
In March 2011, USCIS began the Self-Check
program, which allows an individual to run an E-Verify
query on him or herself to ensure that if they are run
through the system, they are correctly confirmed as
work authorized.\263\
---------------------------------------------------------------------------
\263\E-Verify History and Milestones, supra note 240.
---------------------------------------------------------------------------
In 2011, to ensure the authenticity of a
state-issued driver's license or identification card,
USCIS began the Records and Information from DMVs for
E-Verify (RIDE) program.\264\ The verification through
RIDE was then superseded in 2019 by an interconnection
to the National Law Enforcement Telecommunications
System (NLETS) through which E-Verify validates
``employee's driver's license data for 41 states, the
District of Columbia, and Puerto Rico'' during the
check process.\265\
---------------------------------------------------------------------------
\264\Id.
\265\Id.
---------------------------------------------------------------------------
In November 2013, USCIS began the E-Verify
fraud alert process through which if an SSN is used in
a manner that causes USCIS to suspect fraud (multiple
states, multiple industries, etc. at the same period)
USCIS locks the SSN for employment eligibility
verification purposes.\266\ If that SSN is submitted to
E-Verify again, the employer will receive a TNC until
the original owner of the SSN corrects the issue.
---------------------------------------------------------------------------
\266\E-Verify History and Milestones, supra note 240.
---------------------------------------------------------------------------
In October 2014, USCIS and SSA implemented
the My E-Verify program which allows an individual to
``lock'' their SSN so that if it is submitted for work
authorization purposes the employer who submitted it
receives a TNC.\267\ This mechanism helps prevent the
unauthorized use of another individual's SSN.
---------------------------------------------------------------------------
\267\Id.
---------------------------------------------------------------------------
In February 2016, USCIS made additional
enhancements to the system to make E-Verify easier to
use on mobile devices.\268\
---------------------------------------------------------------------------
\268\Id.
---------------------------------------------------------------------------
iii. Accuracy, Efficiency, and Customer Satisfaction with E-Verify
E-Verify's accuracy rate has improved dramatically over the
years. As a USCIS official testified at a February 2013 hearing
of the Immigration and Border Security Subcommittee, ``the rate
of [work] authorized employees who need to follow up [undergo
secondary verification] with SSA or DHS has declined from 0.7
percent to 0.3 percent when comparing data from similar time
periods in 2005 and 2010.''\269\ This meant that 99.7 percent
of work-eligible individuals received an immediate
confirmation.
---------------------------------------------------------------------------
\269\How E-Verify Works and How it Benefits American Employers and
Workers: Hearing Before the Subcomm. On Immigration and Border Security
of the H. Comm. on the Judiciary, 113th Cong. 15 (2013) (statement of
Soraya Correa, Associate Director, Enterprises Services Directorate,
U.S. Citizenship and Immigration Servs.)
---------------------------------------------------------------------------
According to FY 2022 performance data, 98.34 percent of E-
Verify queries resulted in a confirmation of work eligibility
immediately or within 24 hours.\270\ The other 1.66 percent of
queries include those that resulted in a TNC or FNC for one of
several different reasons, including that the individual was
not eligible to work, the employee made a mistake in filling
out the I-9 form, the employer entered incorrect information
into the E-Verify system, or the employee has not updated
information (such as a name change after marriage) with SSA.
Thus, it is important to understand that a TNC issued to an
individual who is work eligible is not necessarily, or even
likely, an ``error'' committed by the government. In fact, only
0.12 percent of cases are individuals who are initially found
not to be work authorized, but eventually found to be work
authorized.\271\
---------------------------------------------------------------------------
\270\E-Verify, About E-Verify, E-Verify Data, E-Verify Performance,
U.S. Dep't of Homeland Security (last accessed Mar. 20, 2023), https://
www.e-verify.gov/about-e-verify/e-verify-data/e-verify-performance
[hereinafter E-Verify Data and Performance].
\271\Id.
---------------------------------------------------------------------------
According to USCIS, of the 1.66 percent of employees who
receive initial system mismatches:
0.12 percent of employees are confirmed as
work authorized after contesting and resolving the
mismatch; and
1.54 percent of employees are not found work
authorized.\272\
---------------------------------------------------------------------------
\272\E-Verify Data and Performance, supra note 270.
---------------------------------------------------------------------------
Of the 1.54 percent of employees not found to be work
authorized:
0.43 percent of employees who receive
initial mismatches do not contest the mismatch, either
because they choose not to or are unaware they can
contest. As a result, they are not found work
authorized;
0.01 percent of employees receive and
contest initial mismatches and are not found work
authorized; and
1.09 percent of employees receive initial
mismatches that remain unresolved because employers
closed the case (``self-terminated'') or because either
the employer or employee closed the case (``requiring
further action'').''\273\
---------------------------------------------------------------------------
\273\Id.
---------------------------------------------------------------------------
iv. Title VII of H.R. 2640 in Practice
Title VII of H.R. 2640 gives U.S. employers a quick, easy,
and accurate electronic means to verify the employment-
eligibility of their new hires. It phases-in, in six-month
increments beginning with the largest businesses, the
requirement that U.S. employers use E-Verify. Title VII also
allows employers to use E-Verify prior to hiring an individual
to ensure that businesses do not have to invest in an
individual who is ultimately not employment eligible. In
addition, Title VII improves the E-Verify system with
provisions to address identity theft.
Hearings
For the purposes of clause 3(c)(6)(A) of House rule XIII,
the following hearings were used to develop H.R. 2640: ``The
Biden Border Crisis: Part I,'' a hearing held on February 1,
2023, before the Judiciary Committee. The Committee heard
testimony from the following witnesses:
Brandon Dunn, co-founder, Forever15Project;
The Honorable Mark J. Dannels, Sheriff,
Cochise County, Arizona;
The Honorable Dale Lynn Carruthers, County
Judge, Terrell County, Texas; and
The Honorable Ricardo Samaniego, County
Judge, El Paso County, Texas.
The hearing addressed how President Biden's open-borders
policies affect Americans with rising crime, fentanyl-related
deaths, and lawlessness at the southwest border and beyond.
The Judiciary Committee also held a hearing in Yuma,
Arizona, titled ``The Biden Border Crisis: Part II'' on
February 23, 2023. The Committee heard testimony from the
following witnesses:
Dr. Robert Trenschel, President and CEO,
Yuma Regional Medical Center;
The Honorable Leon Wilmot, Sheriff, Yuma
County, Arizona; and
Jonathan Lines, Supervisor, District 2, Yuma
County, Arizona.
The hearing spotlighted how the Biden Administration's
refusal to secure the border devastates one of numerous border
communities, including by draining the local hospital of
resources, plaguing residents with increased crime, and
flooding American communities with fentanyl and other illegal
drugs.
Committee Consideration
On April 19, 2023, the Committee met in open session and
ordered the bill, H.R. 2640, favorably reported with an
amendment in the nature of a substitute, by a roll call vote of
23 to 15, a quorum being present.
Committee Votes
In compliance with clause 3(b) of House rule XIII, the
following roll call votes occurred during the Committee's
consideration of H.R. 2640:
1. Vote on Amendment #1 to H.R. 2640 ANS, offered by Mr.
Nadler, failed 12-18
2. Vote on Amendment #2 to H.R. 2640 ANS, offered by Ms.
Lofgren, failed 11-17
3. Vote on Amendment #3 to H.R. 2640 ANS, offered by Mr.
Massie, failed 18-18
4. Vote on Amendment #4 to H.R. 2640 ANS, offered by Ms.
Lofgren, failed 8-21
5. Vote on Amendment #7 to H.R. 2640 ANS, offered by Ms.
Jayapal, failed 12-22
6. Vote on Amendment #9 to H.R. 2640 ANS, offered by Mr.
Correa, failed 10-19
7. Vote on Motion to Table the Appealing of the Ruling of
the Chair in respect to the germaneness of Amendment #10 to
H.R. 2640 ANS offered by Mr. Schiff, passed 17-12
8. Vote on Amendment #11 to H.R. 2640 ANS, offered by Mr.
Johnson (GA), failed 10-20
9. Vote on Amendment #12 to H.R. 2640 ANS, offered by Ms.
Jackson Lee, failed 13-21
10. Vote on Amendment #13 to H.R. 2640 ANS, offered by Ms.
Scanlon, failed 13-23
11. Vote on Amendment #14 to H.R. 2640 ANS, offered by Ms.
Scanlon, failed 13-22
12. Vote on Amendment #15 to H.R. 2640 ANS, offered by Ms.
Scanlon, failed 12-21
13. Vote on Amendment #16 to H.R. 2640 ANS, offered by Ms.
Jackson Lee, failed 12-21
14. Vote on Amendment #17 to H.R. 2640 ANS, offered by Ms.
Jackson Lee, failed 12-22
15. Vote on Amendment #18 to H.R. 2640 ANS, offered by Mr.
Schiff, failed 13-22
16. Vote on Amendment #19 to H.R. 2640 ANS, offered by Mr.
Ivey, failed 14-22
17. Vote on Amendment #20 to H.R. 2640 ANS, offered by Mr.
Cicilline, failed 14-21
18. Vote on Amendment #21 to H.R. 2640 ANS, offered by Mr.
Cicilline, failed 14-23
19. Vote on Amendment #22 to H.R. 2640 ANS, offered by Ms.
Jayapal, failed 13-23
20. Vote on Amendment #24 to H.R. 2640 ANS, offered by Mr.
Ivey, failed 14-23
21. Vote on Favorably Reporting H.R. 2640, as amended,
passed 23-15
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Committee Oversight Findings
In compliance with clause 3(c)(1) of House rule XIII, the
Committee advises 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.
New Budget Authority and Tax Expenditures
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to eh requirements of clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has requested
but not received a cost estimate for this bill from the
Director of the Congressional Budget Office. The Committee has
requested but not received from the Director of the
Congressional Budget Office a statement as to whether this bill
contains any new budget authority, spending authority, credit
authority, or an increase or decrease in revenues or tax
expenditures. The Chairman of the Committee shall cause such
estimate and statement to be printed in the Congressional
Record upon its receipt by the Committee.
Congressional Budget Office Cost Estimate
With respect to the requirement of clause 3(c)(3) of rule
XIII of the Rules of the House of Representatives, a cost
estimate provided by the Congressional Budget Office pursuant
to section 402 of the Congressional Budget Act of 1974 was not
made available to the Committee in time for the filing of this
report. The Chairman of the Committee shall cause such estimate
to be printed in the Congressional Record upon its receipt by
the Committee.
Committee Estimate of Budgetary Effects
With respect to the requirements of clause 3(d)(1) of rule
XIII of the Rules of the House of Representatives, the
Committee adopts as its own the cost estimate prepared by the
Director of the Congressional Budget Office pursuant to section
402 of the Congressional Budget Act of 1974.
Duplication of Federal Programs
Pursuant to clause 3(c)(5) of House rule XIII, no provision
of H.R. 2640 establishes or reauthorizes a program of the
federal government known to be duplicative of another federal
program.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
House rule XIII, H.R. 2640 would reduce frivolous claims and
close loopholes related to applications for asylum and
withholding of removal by amending sections 208 and 235 of the
INA. H.R. 2640 also would strengthen border safety by
reiterating detention requirements for arriving aliens;
mandating a return of aliens to the contiguous country from
which they arrived if certain detention, return, or removal
requirements are not met; and allowing the DHS Secretary to
suspend the entry of certain aliens if there is no operational
control of the border. The bill also ensures that family units
remain united at the border by eliminating the presumption that
accompanied alien children should not be detained and removing
the requirement for state licenses for family facilities. H.R.
2640 also would reform processes related to unaccompanied alien
children to ensure that children from contiguous and non-
contiguous countries are afforded the same protections. In
addition, H.R. 2640 would increase penalties for aliens who
overstay their visas and would ensure that the immigration
parole authority cannot be abused. Finally, H.R. 2640 would
ensure a legal workforce and reduce the employment incentives
of illegal immigration by amending section 274A of the INA to
mandate nationwide E-Verify.
Advisory on Earmarks
In accordance with clause 9 of House rule XXI, H.R. 2640
does not contain any congressional earmarks, limited tax
benefits, or limited tariff benefits as defined in clauses
9(d), 9(e), or 9(f) of House rule XXI.
Federal Mandates Statement
An estimate of federal mandates prepared by the Director of
the Congressional Budget office pursuant to section 423 of the
Unfunded Mandates Reform Act was not made available to the
Committee in time for the filing of this report. The Chairman
of the Committee shall cause such estimate to be printed in the
Congressional Record upon its receipt by the Committee.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act (Pub. L. 104-
1).
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Section-by-Section Analysis
TITLE I: BORDER SECURITY AND ENFORCEMENT ACT OF 2023
Sec. 101. Short Title. This section states the title of
Title I as the ``Asylum Reform and Border Protection Act of
2023.''
Sec. 102. Safe third country. This section amends section
208(a)(2)(A) of the Immigration and Nationality Act to allow
the Department of Homeland Security to remove aliens seeking
asylum to safe third countries where they would have access to
a full and fair procedure for applying for asylum without the
current necessity for bilateral agreements with those
countries.
This section also makes aliens ineligible for asylum if
they have transited through at least one country outside their
country of citizenship, nationality, or last habitual residence
en route to the United States unless the aliens can show that
(1) they applied for protection in at least one of those
countries and received a final judgment denying the protection;
(2) they were a victim of trafficking; or (3) the countries in
which they transited en route to the United States were not
parties to the relevant international protection treaties.
Sec. 103. Credible fear interviews. This section changes
the current credible fear standard from requiring that an alien
merely show a ``significant possibility'' that he or she could
establish eligibility for asylum to requiring that an alien
show that it is more likely than not that he or she could
establish asylum eligibility and that it is more likely than
not that the statements made by the alien in support of the
alien's claim are true.
Sec. 104. Clarification of asylum eligibility. This section
conditions eligibility for asylum on arriving in the United
States at a port of entry.
Sec. 105. Exceptions. This section creates new exceptions
to asylum eligibility.
Paragraph (2)(A). In General. This paragraph closes the
asylum loophole for criminal aliens by rendering aliens who
commit or are convicted of certain crimes ineligible for
asylum. Those offenses include the possession of false
identification documents, certain controlled substance
offenses, gang-related crimes, driving under the influence,
child abuse, domestic violence, and extreme cruelty or battery.
Paragraph (2)(B). Special Rules. This paragraph grants
broad discretion to the Attorney General to find that other
criminal activity constitutes a particularly serious crime that
makes an alien ineligible for asylum. For certain crimes, the
section allows the Attorney General and Secretary of Homeland
Security to consider facts beyond the conviction documents to
more fully assess whether an alien has engaged in a
disqualifying activity. The paragraph allows adjudicators to
consider Interpol Red Notices in determining whether an alien
has committed a serious nonpolitical crime.
Paragraph (2)(C). Specific Circumstances. This paragraph
specifies that an applicant for asylum and withholding of
removal cannot meet the definition of a refugee based on
circumstances such as personal animus, generalized disapproval
of gang and cartel activity, resistance to gang recruitment,
and gang affiliation.
Paragraph (2)(D). Definitions and Clarifications. This
paragraph adds definitions for ``felony'' and ``misdemeanor''
and streamlines the analysis to determine whether certain
criminal aliens are ineligible for asylum. This paragraph also
gives adjudicators a guide to determine when certain orders
modifying, vacating, or clarifying an alien's underlying
conviction or sentence continue to have immigration
consequences.
Sec. 106. Employment Authorization. This section clarifies
when employment authorization terminates, including during an
appeal to a federal court and after a denial by an asylum
officer. The section creates statutory bars to employment
authorization for aliens who would be found ineligible for
asylum based on grounds such as criminal conduct, manner of
entry, and firm resettlement.
Sec. 107. Asylum fees. This section requires a fee of at
least $50 for each asylum application and reiterates that the
fee cannot exceed the cost of adjudicating the application.
Sec. 108. Rules for determining asylum eligibility: This
section provides additional guidance to determine whether an
alien is a refugee for purposes of an application for asylum
and withholding of removal.
Paragraph 1. Particular Social Group. This paragraph
clarifies that a ``particular social group'' must exist
independently of the alleged persecution and cannot be based on
one of several grounds that the Board of Immigration Appeals
and several federal courts of appeals have repeatedly rejected,
such as criminal activity, gang recruitment, and perceived
wealth.
Paragraph 2. Political Opinion. This paragraph clarifies
that a political opinion requires expressive behavior in
furtherance of a specific cause and does not include general
disapproval of gang activity.
Paragraph 3. Persecution. This paragraph clarifies that
persecution cannot be based on the mere existence of a law or
policy unless the evidence reflects that such law or policy
would be applied to the asylum applicant personally.
Persecution also cannot be based on the conduct of rogue
officials acting outside the scope of their official capacity.
Paragraph 4. Discretionary Determination. This paragraph
outlines discretionary factors to consider in the grant of
asylum, including an alien's use of fraudulent documents. The
provision states that a favorable exercise of discretion
generally is not permitted in other circumstances, such as when
the alien has failed to pay taxes, has accrued more than one
year of unlawful presence in the United States, or has had
multiple asylum applications denied. The provision creates
exceptions if the alien establishes extraordinary circumstances
or exceptional and extremely unusual hardship.
Paragraph 5. Limitation. This provision states that an
alien cannot use his or her failure to define a particular
social group as a basis for a motion to reopen or reconsider an
application for asylum or withholding of removal unless certain
procedural requirements are met.
Paragraph 6. Stereotypes. This paragraph states that
evidence based on stereotypes of an entire country or culture
is inappropriate and is not admissible in adjudicating an
asylum application unless the evidence shows that the
persecutor himself holds such views of the applicant for asylum
and withholding of removal.
Paragraph 7. Definitions. This section defines ``membership
in a particular social group,'' ``political opinion,'' and
``persecution'' for purposes of determining whether an
applicant for asylum and withholding of removal is a refugee as
defined in the Immigration and Nationality Act.
Sec. 109. Firm resettlement. This section states that the
firm resettlement bar applies if an alien either (1) resided in
a country through which the alien traveled before entering the
United States and in which the alien was eligible for or
received any permanent or non-permanent but indefinitely
renewable legal status; or (2) the alien resided in a country
for at least one year after departing the alien's country of
nationality and before entering into the United States.
Sec. 110. Notice concerning frivolous asylum applications.
This section clarifies that the notice of the consequences of
filing a frivolous asylum application, which is contained in
the application itself, is sufficient to advise an applicant of
those consequences. This section further clarifies what the
Secretary of Homeland Security or Attorney General must
determine to sustain a frivolity finding and bars an alien who
is found to have filed a frivolous application from receiving
any future immigration benefits.
Sec. 111. Technical amendments. These amendments add the
Secretary of Homeland Security to certain sections in which
only the Attorney General is currently included.
Sec. 112. Requirement for Procedures Relating to Certain
Asylum Applications. This section requires the Attorney General
to create expedited adjudication procedures for asylum
applicants from certain Western Hemisphere countries that have
been sanctioned by the United States. The expedited procedures
apply to nationals from Cuba, Nicaragua, and Venezuela.
TITLE II: BORDER SAFETY AND MIGRANT PROTECTION ACT OF 2023
Sec. 201. Short Title. This section states the title of
Title II as the ``Border Safety and Migrant Protection Act of
2023.''
Sec. 202. Inspection of applicants for admission. This
section reiterates that the class of aliens subject to
expedited removal includes aliens who are present in the United
States without being admitted or paroled and those arriving in
the country outside of a port of entry.
This section also reiterates the mandatory detention
requirement of certain aliens who are applicants for admission
and restricts parole and release of such individuals unless the
aliens are either removed to another country in which their
life or freedom would not be threatened, or the aliens are
returned to the contiguous country from which they arrived for
the pendency of their immigration proceedings.
This section mandates that aliens be returned to a
contiguous country for the pendency of their immigration
proceedings if the Secretary of Homeland Security cannot comply
with the obligations to detain aliens or remove them to a safe
third country.
This section also allows for the suspension of entry of
certain inadmissible aliens if the Secretary deems the
suspension necessary to achieve ``operational control'' of the
border. The section also provides states standing to sue if the
Secretary violates the detention, return, or removal
provisions.
Sec. 203. Operational Detention Facilities. This section
requires the Secretary of Homeland Security to take all
necessary actions to restore detention facilities that were in
operation as of January 20, 2021, but were subsequently closed
or that had capacity reduced, altered, or discontinued.
This section specifies the facilities to which the mandate
applies, at a minimum, and requires regular status reports to
Congress. The section also mandates notification to Congress
when detention capacity reaches 90, 95, and 100 percent.
TITLE III: ENSURING UNITED FAMILIES AT THE BORDER ACT OF 2023
Sec. 301. Short Title. This section states the title of
Title III as the ``Ensuring United Families at the Border Act
of 2023.''
Sec. 302. Clarification of Standards for Family Detention.
In response to certain provisions of the Flores Stipulated
Settlement Agreement being applied to accompanied minors, this
provision states that there is no presumption that an
accompanied minor should not be detained.
This section requires that the Secretary of Homeland
Security maintain the care and custody of aliens together with
their children while any charges for illegally crossing the
border are pending with the Department of Justice. The
provision also states that it is the sense of Congress that
Title III satisfies the requirements of the Flores Settlement
Agreement as applied to accompanied minors.
This section also preempts state licensing requirements for
facilities used to detain families and children.
TITLE IV: PROTECTION OF CHILDREN ACT OF 2023
Sec. 401. Short Title. This section states the title of
Title IV as the ``Protection of Children Act of 2023.''
Sec. 402. Findings. This section makes specific findings
related to the crisis of unaccompanied alien children (UACs) at
the southwest border.
Sec. 403. Repatriation of Unaccompanied Alien Children.
This section requires that all UACs, regardless of whether they
are nationals of a contiguous country, be safely and
expeditiously returned to their country of origin, provided
that they are not victims of trafficking or do not claim a
credible fear of persecution.
This section requires that UACs who are victims of severe
forms of trafficking or who claim a credible fear of
persecution receive a hearing before an immigration judge
within 14 days and allows DHS to hold a UAC for up to 30 days
to ensure a speedy judicial process.
This section also requires HHS to provide DHS with
biographical information regarding the sponsors or family
members to whom the minors are released.
This section mandates that DHS follow up with the sponsors
of UACs to verify the sponsor's immigration status and issue
notices for the sponsor to appear in immigration court when
appropriate.
This section reaffirms the privilege of UACs to have access
to counsel to represent them in immigration court but
emphasizes that such representation is at no expense to the
United States taxpayer.
Sec. 404. Special immigrant juvenile status for immigrants
unable to reunite with either parent. Due to a mistake in
current law, juveniles can obtain green cards as Special
Immigrant Juveniles (SIJs) if they can show that they have been
abandoned by a single parent even though another parent is
present in the U.S. and is able and willing to care for them.
Many UACs seek green cards through the SIJ process once in the
United States. This section clarifies that special immigrant
green cards are available only to juveniles who have lost or
been abandoned by both parents.
Sec. 405. Rule of Construction. This section emphasizes
that nothing in Title IV shall be construed to limit practices
and procedures that involve (1) screening a UAC to determine
whether the UAC has a credible fear of persecution, (2)
screening a UAC to determine whether the UAC is a victim of
trafficking, or (3) the current policy of HHS requiring a home
study for UACs under 12 years old.
TITLE V: STOP VISA OVERSTAYS ACT
Sec. 501. Short Title. This section states the title of
Title V as the ``Stop Visa Overstays Act.''
Sec. 502. Expanded Penalties for Illegal Entry or Presence.
This section places visa overstay, which is currently solely an
immigration violation, on par with illegal entry as a
misdemeanor criminal offense punishable by up to six months
imprisonment for the first offense. This section specifies that
an alien who fails to maintain his or her nonimmigrant status
for an aggregate period of 10 days shall be fined or imprisoned
or both.
This section also increases the civil penalties for illegal
entry from between $50 and $250 to between $500 and $1,000 and
mandates the fine for a subsequent offense be double the
initial fine. The section subjects visa overstayers to those
same civil penalties.
TITLE VI: IMMIGRATION PAROLE REFORM ACT OF 2023
Sec. 601. Short Title. This section states the title of
Title VI as the ``Immigration Parole Reform Act of 2023.''
Sec. 602. Immigration Parole Reform. This section prohibits
the Secretary of the Department of Homeland Security from
granting parole ``according to eligibility criteria describing
an entire class of potential parole recipients,'' otherwise
known as categorical parole.
This section requires that, with narrow exceptions, parole
may only be granted to aliens who are not present in the United
States and clarifies that parole is not an admission for
purposes of adjustment of status.
This section codifies two existing categorical parole
programs: the Cuban Family Reunification Parole program, and
another for the spouse or children of active-duty military
service members. It also allows the DHS Secretary to grant
parole to an alien who is enrolled in a Remain in Mexico-type
program for purposes of the alien being escorted to an
immigration hearing, attending the hearing, and being escorted
back to the contiguous country in which the alien was awaiting
immigration proceedings.
This section narrows the scope of the current humanitarian
and significant public benefit authority to align with the
intent of Congress that parole be used rarely and in individual
circumstances, and not as a workaround of the law or to admit
groups of aliens who would not otherwise be eligible to enter
the U.S.
This section clarifies what is meant by ``case-by-case''
adjudication of parole applications.
This section precludes aliens granted parole from receiving
employment authorization documents with the exception of those
in the existing Cuban Family Reunification Parole and the
military family parole programs.
This section clarifies that parole cannot be used as an
avenue for adjustment of status to that of a lawful permanent
resident, or to gain any other immigration benefit if the
alien's underlying immigration status allows for such
adjustment or benefit.
This section limits the initial grant of parole to the
shorter of: (1) the time it takes to complete the activity for
which parole was granted; or (2) one year. Allows a one-time
extension of parole for that period.
This section requires DHS to report annually to the House
and Senate Judiciary Committees regarding aliens paroled during
the previous year, including the total number of aliens paroled
into the United States and the type of parole granted.
Sec. 603. Implementation. This section makes the changes
effective 30 days after the date of enactment of the act and
allows aliens granted parole prior to January 1, 2023, to
continue in their parole status pursuant to the laws in effect
on the date parole was granted.
Sec. 604. Cause of Action. This section creates standing so
state attorneys general can hold DHS accountable if DHS grants
parole in violation of the law.
Sec. 605. Severability. This section states that, if any
provision of the legislation is found to be unconstitutional,
the other provisions in the legislation remain unaffected.
TITLE VII: LEGAL WORKFORCE ACT
Sec. 701. Short Title. This section states the title of
Title VII as the ``Legal Workforce Act.''
Sec. 702. Employment Eligibility Verification Process.
Proof of Employment Eligibility and
Identity. This section requires that the employer
attest, in an electronic or paper form, that they have
verified the employment eligibility of the individual
seeking employment by obtaining the individual's Social
Security Number (SSN) or immigrant identification
number and examining acceptable documents presented by
the individual to establish work eligibility and
identity. It requires that the employer use E-Verify to
check the work eligibility of the individual. This
section reduces the number of acceptable documents for
proof of work eligibility and identity.
Retention of Attestation Form. This section
requires that the employer retain a paper, microfiche,
or electronic copy of the attestation form for the
latter of three years or one year after the date of
employment termination.
Verification. This section requires the
employer to record the E-Verify verification code for
employees when they receive confirmation or final non-
confirmation of work authorization. It allows an
employee who receives a tentative non-confirmation to
use the secondary verification process in place under
E-Verify. This section states that an employer may
terminate the employment of individuals who receive a
final non-confirmation and if they do not terminate
employment they must notify DHS of the decision not to
do so (which creates a rebuttable presumption of
noncompliance if the employer does not terminate
employment). It allows an employer to check the
employment eligibility of a prospective employee
between the date of the offer of a job and three days
after the date of hire. It allows the employer to
condition a job offer on an E-Verify confirmation.
Phase-In. This section phases in mandatory
E-Verify participation for new hires in six-month
increments beginning on the date six months after
enactment with businesses having more than 10,000
employees. Twelve months after enactment, businesses
having 500 to 9,999 employees are required to use E-
Verify, as are recruiters and referrers. Eighteen
months after enactment, businesses having 20 to 499
employees must use E-Verify. Twenty-four months after
enactment, businesses having 1 to 19 employees must use
E-Verify. Note that on the date of enactment, those
employers who are currently required by federal law to
use E-Verify (certain federal contractors, the
Executive Branch, and the Legislative Branch) will
continue to be required to use E-Verify.
Agriculture. This section requires that
employees performing ``agricultural labor or
services,'' as defined in section 3(f) of the Fair
Labor Standards Act of 1938 (29 U.S.C. 203(f)), are
subject to an E-Verify check within 36 months of the
date of enactment.
One-Time Extension for Small Businesses.
This section allows an employer having 50 or fewer
employees to request from DHS a one-time extension of
the implementation deadline. DHS shall grant the
extension upon request.
One-Time Extension for Agricultural
Employers. This section allows the DHS Secretary to
extend the implementation date for agricultural
employers for one year once the report required by
Section 715 of the Act has been submitted to Congress.
Transition. This section retains the
requirements of the Federal Acquisition Rule (FAR) as
set out by Executive Order 13465.
Reverification of Individuals with Limited
Work Authorization. This section requires employers to
verify the work eligibility of individuals with work
visas, etc. at some point within the three business
days of the date on which the work authorization
expires. It phases in this requirement according to the
size of the business, over the same 24-month period as
the initial use phase-in.
Previously Hired Individuals. This section
requires the employment eligibility of a current
employee to be verified if they (1) work for the
Federal government, a State or local government, a
critical infrastructure site, or on a Federal or State
contract (clarifies that if an employee who falls into
this category has already been checked by the current
employer using E-Verify, then the employee does not
have to be checked again); or (2) submit an SSN that
DHS determines has a pattern of unusual multiple uses.
It allows employers to voluntarily verify the work
authorization of their current workforce as long as all
of the employees are in the same geographic location or
employed within the same job category as the employee
for whom verification is sought, the area also
verified.
Transition. This section allows an employer
using, or who wants to use, the E-Verify pilot program
to use the new system in lieu of the pilot program even
if not yet required to use the new system.
Limited Use of Information. This section
prohibits the information provided under the employment
eligibility confirmation process from being used for
any reason other than the enforcement of this bill and
certain criminal provisions.
Safe Harbor. This section provides that an
employer has complied with the requirements set out in
this section if there was a good faith attempt to
comply with the requirements. The safe harbor does not
apply when the employer is engaging in a pattern or
practice of violations.
Possible Implementation Deadline Extension.
This section allows the DHS Secretary a one-time six-
month extension of the implementation deadlines if the
Secretary certifies to Congress that the employment
eligibility verification system will not be ready
within six months of the date of enactment of the Legal
Workforce Act.
Sec. 703. Employment Eligibility Verification System.
E-Verify Creation. This section requires the
DHS Secretary to create an employment eligibility
verification system, (patterned on the current E-Verify
pilot program) that is accessible by Internet. The
system must provide confirmation or tentative non-
confirmation within three working days of the
employer's initial inquiry. The system must provide a
secondary process in cases of a tentative non-
confirmation so that the employer receives a final
confirmation or non-confirmation within ten working
days of the notice to the employee that there is a
tentative non-confirmation. This section allows the
Secretary to extend that deadline once on a case-by-
case basis for a period of ten working days, but the
Secretary must notify the employer and employee of such
extension. It requires the Secretary, in consultation
with Commissioner, to create a standard process for
such extension and notification. The section requires
the system to include safeguards for privacy, against
unlawful discriminatory practices, and unauthorized
disclosure of personal information.
No National Identification Card. This
section reiterates that this is not a national ID card.
Updating Information. This section requires
that the Social Security Administration (SSA) and DHS
promptly update E-Verify database information to
promote maximum accuracy.
DHS Secretary Authority. This section allows
the DHS Secretary to require certain entities
associated with critical infrastructure to use E-Verify
if the use will assist in the protection of the
critical infrastructure.
Remedies. This section provides that if a
work-eligible individual claims that they were wrongly
fired from, or were not hired for, a job due to an
incorrect E-Verify non-confirmation, they may seek
remedies under the Federal Tort Claims Act. Prohibits
class action lawsuits.
Sec. 704. Recruitment and Referral. This section requires
union hiring halls, day labor sites, and State workforce
agencies to use E-Verify when recruiting or referring an
individual for employment.
Sec. 705. Good Faith Defense. This section provides a safe
harbor for employers who use E-Verify in good faith. It also
provides that if an employer uses a reasonable, secure, and
established technology to authenticate the identity of a new
employee, that fact shall be taken into consideration for
purposes of determining good faith use of the system.
Sec. 706. Preemption and States' Rights.
Federal Preemption. This section creates one
federal law requiring E-Verify use by preempting State
laws mandating E-Verify use for employment eligibility
purposes.
States' Rights. This section gives States a
specific role in helping to enforce the E-Verify
requirements by allowing the States to investigate
violations of this Act and enforce the provisions
pursuant to the federal structure. It incentivizes
States to help enforce E-Verify requirements by
allowing the States to retain the fines assessed under
this Act. States that an employer may be subject only
to a state investigation and enforcement action or a
federal investigation and enforcement action for the
same violation of E-Verify laws. This section retains
the ability of States and localities to condition
business licenses on the requirement that the employer
uses E-Verify in accordance with the requirements of
this Act.
Sec. 707. Repeal. This section repeals Subtitle A of Title
IV of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996. (This is where E-Verify was created
as a pilot. It is in the notes to 8 U.S.C. Sec. 1324A and
because this bill places E-Verify in the actual text of 1324A,
there is no longer a need for Subtitle A of title IV of
IIRIRA.)
Sec. 708. Penalties.
Penalties. This section increases the civil
and criminal penalties for employers who violate the
laws prohibiting illegal hiring and employment.
Debarment. This section allows DHS to bar a
business from receiving federal contracts, grants, or
other cooperative agreements, if they repeatedly
violate the requirements in this bill or if they are
convicted of a crime under this bill. If the business
has a contract, grant, or agreement at the time, then
DHS and the Attorney General must consider the views of
the agency with which the business has a contract,
grant, or agreement to determine whether the business
should be debarred.
State and Local Assistance. This section
creates an office within ICE whose sole purpose is to
respond to (within five business days of the complaint)
and investigate state and local governmental agency
complaints about businesses hiring and/or employing
illegal immigrants.
Sec. 709. Fraud and Misuse of Documents. This section
amends 18 U.S.C. 1546(b) to ensure that employers or
prospective employees who submit for work eligibility purposes
a social security number or documents related to identity or
work authorization, knowing that the social security number or
documents do not belong to the person presenting them, are
subject to criminal penalties.
Sec. 710. Protection of Social Security Administration
Programs.
DHS/SSA Reimbursement. This section requires
DHS to enter into an annual agreement with SSA to
reimburse, in a timely manner, SSA for the costs that
it incurs in operating its part of E-Verify.
Sec. 711. Fraud Prevention.
Social Security Number ``Lock.'' To combat
identity theft, this provision requires DHS to ``lock''
a social security number that is subject to unusual
multiple uses so that if the owner attempts to get a
job, the owner is alerted that the SSN may have been
compromised.
Social Security Number ``Self Lock.'' This
section requires DHS to allow individuals to ``lock''
their own SSN so that it cannot be used to verify work
eligibility, to combat identity theft.
Social Security Number ``Child Lock.'' This
section requires DHS to allow parents or legal
guardians to ``lock'' the SSN of their minor child so
that it cannot be used for employment eligibility
purposes, to combat theft of the minor child's
identity.
Sec. 712. Use of Employment Eligibility Verification Tool.
This section requires that an employer who utilizes the photo
matching tool that is part of E-Verify, match the photo tool
photograph to the picture on the identity or employment
eligibility document provided by the employee or to the face of
the employee submitting the document for employment eligibility
purposes.
Sec. 713. Identity Authentication Employment Eligibility
Verification Pilot Program. This section requires DHS to create
two pilot programs that allow employers to use an identity-
authentication-based identification program for work
eligibility check purposes.
Sec. 714. Inspector General Audits. This section requires,
to help identify misuse of SSNs within the current workforce,
the Inspector General of the SSA to complete audits of certain
categories of SSNs for which there is a likelihood of use by
unauthorized workers. The House Committee on Ways and Means and
the Senate Finance Committee will then determine the
information to be given to DHS to investigate incidents of SSN
misuse and unauthorized employment.
Sec. 715. Agriculture Workforce Study. This section
requires the Secretary of the Department of Homeland Security
in consultation with the Secretary of the Department of
Agriculture to submit a report on the agricultural workforce to
the Committee on the Judiciary of the House of Representatives
and the Committee on the Judiciary of the Senate.
Sec. 716. Repealing regulations. This section nullifies two
Biden Administration regulations, the ``Temporary Agricultural
Employment of H-2A Nonimmigrants in the United States'' and the
``Adverse Effect Wage Rate Methodology for the Temporary
Employment of H-2A Nonimmigrants in Non-Range Occupations in
the United States.''
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) 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 italics, and existing law in which no
change is proposed is shown in roman):
IMMIGRATION AND NATIONALITY ACT
* * * * * * *
TITLE I--GENERAL
definitions
Section 101. (a) As used in this Act--
(1) The term ``administrator'' means the official designated
by the Secretary of State pursuant to section 104(b) of this
Act.
(2) The term ``advocates'' includes, but is not limited to,
advises, recommends, furthers by overt act, and admits belief
in.
(3) The term ``alien'' means any person not a citizen or
national of the United States.
(4) The term ``application for admission'' has reference to
the application for admission into the United States and not to
the application for the issuance of an immigrant or
nonimmigrant visa.
(5) The term ``Attorney General'' means the Attorney General
of the United States.
(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.
(7) The term ``clerk of court'' means a clerk of a
naturalization court.
(8) The terms ``Commissioner'' and ``Deputy Commissioner''
mean the Commissioner of Immigration and Naturalization and a
Deputy Commissioner of Immigration and Naturalization,
respectively.
(9) The term ``consular officer'' means any consular,
diplomatic, or other officer or employee of the United States
designated under regulations prescribed under authority
contained in this Act, for the purpose of issuing immigrant or
nonimmigrant visas or, when used in title III, for the purpose
of adjudicating nationality.
(10) The term ``crewman'' means a person serving in any
capacity on board a vessel or aircraft.
(11) The term ``diplomatic visa'' means a nonimmigrant visa
bearing that title and issued to a nonimmigrant in accordance
with such regulations as the Secretary of State may prescribe.
(12) The term ``doctrine'' includes, but is not limited to,
policies, practices, purposes, aims, or procedures.
(13)(A) The terms ``admission'' and ``admitted'' mean, with
respect to an alien, the lawful 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 been absent from the United States for a
continuous period in excess of 180 days,
(iii) has engaged in illegal activity after having
departed the United States,
(iv) 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,
(v) has committed an offense identified in section
212(a)(2), unless since such offense the alien has been
granted relief under section 212(h) or 240A(a), or
(vi) 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.
(14) The term ``foreign state'' includes outlying possessions
of a foreign state, but self-governing dominions and
territories under mandate or trusteeship shall be regarded as
separate foreign states.
(15) The term ``immigrant'' means every alien except an alien
who is within one of the following classes of nonimmigrant
aliens--
(A)(i) an ambassador, public minister, or career
diplomatic or consular officer who has been accredited
by a foreign government recognized de jure by the
United States and who is accepted by the President or
by the Secretary of State, and the members of the
alien's immediate family;
(ii) upon a basis of reciprocity, other officials and
employees who have been accredited by a foreign
government recognized de jure by the United States, who
are accepted by the Secretary of State, and the members
of their immediate families; and
(iii) upon a basis of reciprocity, attendants,
servants, personal employees, and members of their
immediate families, of the officials and employees who
have a nonimmigrant status under (i) and (ii) above;
(B) an alien (other than one coming for the purpose
of study or of performing skilled or unskilled labor or
as a representative of foreign press, radio, film, or
other foreign information media coming to engage in
such vocation) having a residence in a foreign country
which he has no intention of abandoning and who is
visiting the United States temporarily for business or
temporarily for pleasure;
(C)(i) an alien in immediate and continuous transit
through the United States, for a period not to exceed
29 days;
(ii) an alien who qualifies as a person entitled to
pass in transit to and from the United Nations
Headquarters District (as defined in section 209A(e) of
the State Department Basic Authorities Act of 1956 (22
U.S.C. 4309a(e))) and foreign countries, under the
provisions of paragraphs (3), (4), and (5) of section
11 of the Agreement regarding the Headquarters of the
United Nations, done at Lake Success June 26, 1947 (61
Stat. 758); or
(iii) an alien passing in transit through the United
States to board a vessel on which the alien will
perform, or to disembark from a vessel on which the
alien performed, ship-to-ship liquid cargo transfer
operations to or from another vessel engaged in foreign
trade, for a period not to exceed 180 days;
(D)(i) an alien crewman serving in good faith as such
in a capacity required for normal operation and service
on board a vessel, as defined in section 258(a) (other
than a fishing vessel having its home port or an
operating base in the United States), or aircraft, who
intends to land temporarily and solely in pursuit of
his calling as a crewman and to depart from the United
States with the vessel or aircraft on which he arrived
or some other vessel or aircraft;
(ii) an alien crewman serving in good faith as such
in any capacity required for normal operations and
service aboard a fishing vessel having its home port or
an operating base in the United States who intends to
land temporarily in Guam or the Commonwealth of the
Northern Mariana Islands and solely in pursuit of his
calling as a crewman and to depart from Guam or the
Commonwealth of the Northern Mariana Islands with the
vessel on which he arrived; or
(iii) an alien crewman performing ship-to-ship liquid
cargo transfer operations to or from another vessel
engaged in foreign trade, who intends to land
temporarily solely in pursuit of the alien's
responsibilities as a crewman and to depart from the
United States on the vessel on which the alien arrived
or on another vessel or aircraft, for a period not to
exceed 180 days;
(E) an alien entitled to enter the United States
under and in pursuance of the provisions of a treaty of
commerce and navigation between the United States and
the foreign state of which the alien is a national (or,
in the case of an alien who acquired the relevant
nationality through a financial investment and who has
not previously been granted status under this
subparagraph, the foreign state of which the alien is a
national and in which the alien has been domiciled for
a continuous period of not less than 3 years at any
point before applying for a nonimmigrant visa under
this subparagraph), and the spouse and children of any
such alien if accompanying or following to join such
alien: (i) solely to carry on substantial trade,
including trade in services or trade in technology,
principally between the United States and the foreign
state of which the alien is a national; (ii) solely to
develop and direct the operations of an enterprise in
which the alien has invested, or of an enterprise in
which the alien is actively in the process of
investing, a substantial amount of capital; or (iii)
solely to perform services in a specialty occupation in
the United States if the alien is a national of the
Commonwealth of Australia and with respect to whom the
Secretary of Labor determines and certifies to the
Secretary of Homeland Security and the Secretary of
State that the intending employer has filed with the
Secretary of Labor an attestation under section
212(t)(1);
(F)(i) an alien having a residence in a foreign
country which he has no intention of abandoning, who is
a bona fide student qualified to pursue a full course
of study and who seeks to enter the United States
temporarily and solely for the purpose of pursuing such
a course of study consistent with section 214(l) at an
established college, university, seminary,
conservatory, academic high school, elementary school,
or other academic institution or in an accredited
language training program in the United States,
particularly designated by him and approved by the
Attorney General after consultation with the Secretary
of Education, which institution or place of study shall
have agreed to report to the Attorney General the
termination of attendance of each nonimmigrant student,
and if any such institution of learning or place of
study fails to make reports promptly the approval shall
be withdrawn, (ii) the alien spouse and minor children
of any alien described in clause (i) if accompanying or
following to join such an alien, and (iii) an alien who
is a national of Canada or Mexico, who maintains actual
residence and place of abode in the country of
nationality, who is described in clause (i) except that
the alien's qualifications for and actual course of
study may be full or part-time, and who commutes to the
United States institution or place of study from Canada
or Mexico;
(G)(i) a designated principal resident representative
of a foreign government recognized de jure by the
United States, which foreign government is a member of
an international organization entitled to enjoy
privileges, exemptions, and immunities as an
international organization under the International
Organizations Immunities Act (59 Stat. 669), accredited
resident members of the staff of such representatives,
and members of his or their immediate family;
(ii) other accredited representatives of such a
foreign government to such international organizations,
and the members of their immediate families;
(iii) an alien able to qualify under (i) or (ii)
above except for the fact that the government of which
such alien is an accredited representative is not
recognized de jure by the United States, or that the
government of which he is an accredited representative
is not a member of such international organization, and
the members of his immediate family;
(iv) officers, or employees of such international
organizations, and the members of their immediate
families;
(v) attendants, servants, and personal employees of
any such representative, officer, or employee, and the
members of the immediate families of such attendants,
servants, and personal employees;
(H) an alien (i) (b) subject to section 212(j)(2),
who is coming temporarily to the United States to
perform services (other than services described in
subclause (a) during the period in which such subclause
applies and other than services described in subclause
(ii)(a) or in subparagraph (O) or (P)) in a specialty
occupation described in section 214(i)(1) or as a
fashion model, who meets the requirements for the
occupation specified in section 214(i)(2) or, in the
case of a fashion model, is of distinguished merit and
ability, and with respect to whom the Secretary of
Labor determines and certifies to the Attorney General
that the intending employer has filed with the
Secretary an application under section 212(n)(1), or
(b1) who is entitled to enter the United States under
and in pursuance of the provisions of an agreement
listed in section 214(g)(8)(A), who is engaged in a
specialty occupation described in section 214(i)(3),
and with respect to whom the Secretary of Labor
determines and certifies to the Secretary of Homeland
Security and the Secretary of State that the intending
employer has filed with the Secretary of Labor an
attestation under section 212(t)(1), or (c) who is
coming temporarily to the United States to perform
services as a registered nurse, who meets the
qualifications described in section 212(m)(1), and with
respect to whom the Secretary of Labor determines and
certifies to the Attorney General that an unexpired
attestation is on file and in effect under section
212(m)(2) for the facility (as defined in section
212(m)(6)) for which the alien will perform the
services; or (ii)(a) having a residence in a foreign
country which he has no intention of abandoning who is
coming temporarily to the United States to perform
agricultural labor or services, as defined by the
Secretary of Labor in regulations and including
agricultural labor defined in section 3121(g) of the
Internal Revenue Code of 1986, agriculture as defined
in section 3(f) of the Fair Labor Standards Act of 1938
(29 U.S.C. 203(f)), and the pressing of apples for
cider on a farm, of a temporary or seasonal nature, or
(b) having a residence in a foreign country which he
has no intention of abandoning who is coming
temporarily to the United States to perform other
temporary service or labor if unemployed persons
capable of performing such service or labor cannot be
found in this country, but this clause shall not apply
to graduates of medical schools coming to the United
States to perform services as members of the medical
profession; or (iii) having a residence in a foreign
country which he has no intention of abandoning who is
coming temporarily to the United States as a trainee,
other than to receive graduate medical education or
training, in a training program that is not designed
primarily to provide productive employment; and the
alien spouse and minor children of any such alien
specified in this paragraph if accompanying him or
following to join him;
(I) upon a basis of reciprocity, an alien who is a
bona fide representative of foreign press, radio, film,
or other foreign information media, who seeks to enter
the United States solely to engage in such vocation,
and the spouse and children of such a representative if
accompanying or following to join him;
(J) an alien having a residence in a foreign country
which he has no intention of abandoning who is a bona
fide student, scholar, trainee, teacher, professor,
research assistant, specialist, or leader in a field of
specialized knowledge or skill, or other person of
similar description, who is coming temporarily to the
United States as a participant in a program designated
by the Director of the United States Information
Agency, for the purpose of teaching, instructing or
lecturing, studying, observing, conducting research,
consulting, demonstrating special skills, or receiving
training and who, if he is coming to the United States
to participate in a program under which he will receive
graduate medical education or training, also meets the
requirements of section 212(j), and the alien spouse
and minor children of any such alien if accompanying
him or following to join him;
(K) subject to subsections (d) and (p) of section
214, an alien who--
(i) is the fiancee or fiance of a citizen of
the United States (other than a citizen
described in section 204(a)(1)(A)(viii)(I)) and
who seeks to enter the United States solely to
conclude a valid marriage with the petitioner
within ninety days after admission;
(ii) has concluded a valid marriage with a
citizen of the United States (other than a
citizen described in section
204(a)(1)(A)(viii)(I)) who is the petitioner,
is the beneficiary of a petition to accord a
status under section 201(b)(2)(A)(i) that was
filed under section 204 by the petitioner, and
seeks to enter the United States to await the
approval of such petition and the availability
to the alien of an immigrant visa; or
(iii) is the minor child of an alien
described in clause (i) or (ii) and is
accompanying, or following to join, the alien;
(L) subject to section 214(c)(2), an alien who,
within 3 years preceding the time of his application
for admission into the United States, has been employed
continuously for one year by a firm or corporation or
other legal entity or an affiliate or subsidiary
thereof and who seeks to enter the United States
temporarily in order to continue to render his services
to the same employer or a subsidiary or affiliate
thereof in a capacity that is managerial, executive, or
involves specialized knowledge, and the alien spouse
and minor children of any such alien if accompanying
him or following to join him;
(M)(i) an alien having a residence in a foreign
country which he has no intention of abandoning who
seeks to enter the United States temporarily and solely
for the purpose of pursuing a full course of study at
an established vocational or other recognized
nonacademic institution (other than in a language
training program) in the United States particularly
designated by him and approved by the Attorney General,
after consultation with the Secretary of Education,
which institution shall have agreed to report to the
Attorney General the termination of attendance of each
nonimmigrant nonacademic student and if any such
institution fails to make reports promptly the approval
shall be withdrawn, (ii) the alien spouse and minor
children of any alien described in clause (i) if
accompanying or following to join such an alien, and
(iii) an alien who is a national of Canada or Mexico,
who maintains actual residence and place of abode in
the country of nationality, who is described in clause
(i) except that the alien's course of study may be full
or part-time, and who commutes to the United States
institution or place of study from Canada or Mexico;
(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));
(O) an alien who--
(i) has extraordinary ability in the
sciences, arts, education, business, or
athletics which has been demonstrated by
sustained national or international acclaim or,
with regard to motion picture and television
productions a demonstrated record of
extraordinary achievement, and whose
achievements have been recognized in the field
through extensive documentation, and seeks to
enter the United States to continue work in the
area of extraordinary ability; or
(ii)(I) seeks to enter the United States
temporarily and solely for the purpose of
accompanying and assisting in the artistic or
athletic performance by an alien who is
admitted under clause (i) for a specific event
or events,
(II) is an integral part of such actual
performance,
(III)(a) has critical skills and experience
with such alien which are not of a general
nature and which cannot be performed by other
individuals, or (b) in the case of a motion
picture or television production, has skills
and experience with such alien which are not of
a general nature and which are critical either
based on a pre-existing longstanding working
relationship or, with respect to the specific
production, because significant production
(including pre- and post-production work) will
take place both inside and outside the United
States and the continuing participation of the
alien is essential to the successful completion
of the production, and
(IV) has a foreign residence which the alien
has no intention of abandoning; or
(iii) is the alien spouse or child of an
alien described in clause (i) or (ii) and is
accompanying, or following to join, the alien;
(P) an alien having a foreign residence which the
alien has no intention of abandoning who--
(i)(a) is described in section 214(c)(4)(A)
(relating to athletes), or (b) is described in
section 214(c)(4)(B) (relating to entertainment
groups);
(ii)(I) performs as an artist or entertainer,
individually or as part of a group, or is an
integral part of the performance of such a
group, and
(II) seeks to enter the United States
temporarily and solely for the purpose of
performing as such an artist or entertainer or
with such a group under a reciprocal exchange
program which is between an organization or
organizations in the United States and an
organization or organizations in one or more
foreign states and which provides for the
temporary exchange of artists and entertainers;
(iii)(I) performs as an artist or
entertainer, individually or as part of a
group, or is an integral part of the
performance of such a group, and
(II) seeks to enter the United States
temporarily and solely to perform, teach, or
coach as such an artist or entertainer or with
such a group under a commercial or
noncommercial program that is culturally
unique; or
(iv) is the spouse or child of an alien
described in clause (i), (ii), or (iii) and is
accompanying, or following to join, the alien;
(Q)(i) an alien having a residence in a foreign
country which he has no intention of abandoning who is
coming temporarily (for a period not to exceed 15
months) to the United States as a participant in an
international cultural exchange program approved by the
Secretary of Homeland Security for the purpose of
providing practical training, employment, and the
sharing of the history, culture, and traditions of the
country of the alien's nationality and who will be
employed under the same wages and working conditions as
domestic workers; or (ii)(I) an alien citizen of the
United Kingdom or the Republic of Ireland, 21 to 35
years of age, unemployed for not less than 12 months,
and having a residence for not less than 18 months in
Northern Ireland, or the counties of Louth, Monaghan,
Cavan, Leitrim, Sligo, and Donegal within the Republic
of Ireland, which the alien has no intention of
abandoning who is coming temporarily (for a period not
to exceed 24 months) to the United States as a
participant in a cultural and training program approved
by the Secretary of State and the Secretary of Homeland
Security under section 2(a) of the Irish Peace Process
Cultural and Training Program Act of 1998 for the
purpose of providing practical training, employment,
and the experience of coexistence and conflict
resolution in a diverse society, and (II) the alien
spouse and minor children of any such alien if
accompanying the alien or following to join the alien;
(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);
(S) subject to section 214(k), an alien--
(i) who the Attorney General determines--
(I) is in possession of critical
reliable information concerning a
criminal organization or enterprise;
(II) is willing to supply or has
supplied such information to Federal or
State law enforcement authorities or a
Federal or State court; and
(III) whose presence in the United
States the Attorney General determines
is essential to the success of an
authorized criminal investigation or
the successful prosecution of an
individual involved in the criminal
organization or enterprise; or
(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;
(T)(i) subject to section 214(o), an alien who the
Secretary of Homeland Security, or in the case of
subclause (III)(aa) the Secretary of Homeland Security,
in consultation with the Attorney General, determines--
(I) is or has been a victim of a
severe form of trafficking in persons,
as defined in section 103 of the
Trafficking Victims Protection Act of
2000;
(II) is physically present in the
United States, American Samoa, or the
Commonwealth of the Northern Mariana
Islands, or at a port of entry thereto,
on account of such trafficking,
including physical presence on account
of the alien having been allowed entry
into the United States for
participation in investigative or
judicial processes associated with an
act or a perpetrator of trafficking;
(III)(aa) has complied with any
reasonable request for assistance in
the Federal, State or local
investigation or prosecution of acts of
trafficking or the investigation of
crime where acts of trafficking are at
least one central reason for the
commission of that crime;
(bb) in consultation with the Attorney
General, as appropriate, is unable to cooperate
with a request described in item (aa) due to
physical or psychological trauma; or
(cc) has not attained 18 years of
age; and
(IV) the alien would suffer extreme
hardship involving unusual and severe
harm upon removal; and
(ii) if accompanying, or following to join, the alien
described in clause (i)--
(I) in the case of an alien described in
clause (i) who is under 21 years of age, the
spouse, children, unmarried siblings under 18
years of age on the date on which such alien
applied for status under such clause, and
parents of such alien;
(II) in the case of an alien described in
clause (i) who is 21 years of age or older, the
spouse and children of such alien; or
(III) any parent or unmarried sibling under
18 years of age of an alien described in
subclause (I) or (II) who the Secretary of
Homeland Security, in consultation with the law
enforcement officer investigating a severe form
of trafficking, determines faces a present
danger of retaliation as a result of the
alien's escape from the severe form of
trafficking or cooperation with law
enforcement.
(U)(i) subject to section 214(p), an alien who files
a petition for status under this subparagraph, if the
Secretary of Homeland Security determines that--
(I) the alien has suffered
substantial physical or mental abuse as
a result of having been a victim of
criminal activity described in clause
(iii);
(II) the alien (or in the case of an
alien child under the age of 16, the
parent, guardian, or next friend of the
alien) possesses information concerning
criminal activity described in clause
(iii);
(III) the alien (or in the case of an
alien child under the age of 16, the
parent, guardian, or next friend of the
alien) has been helpful, is being
helpful, or is likely to be helpful to
a Federal, State, or local law
enforcement official, to a Federal,
State, or local prosecutor, to a
Federal or State judge, to the Service,
or to other Federal, State, or local
authorities investigating or
prosecuting criminal activity described
in clause (iii); and
(IV) the criminal activity described
in clause (iii) violated the laws of
the United States or occurred in the
United States (including in Indian
country and military installations) or
the territories and possessions of the
United States;
(ii) if accompanying, or following to join, the alien
described in clause (i)--
(I) in the case of an alien described in
clause (i) who is under 21 years of age, the
spouse, children, unmarried siblings under 18
years of age on the date on which such alien
applied for status under such clause, and
parents of such alien; or
(II) in the case of an alien described in
clause (i) who is 21 years of age or older, the
spouse and children of such alien; and
(iii) the criminal activity referred to in
this clause is that involving one or more of
the following or any similar activity in
violation of Federal, State, or local criminal
law: rape; torture; trafficking; incest;
domestic violence; sexual assault; abusive
sexual contact; prostitution; sexual
exploitation; stalking; female genital
mutilation; being held hostage; peonage;
involuntary servitude; slave trade; kidnapping;
abduction; unlawful criminal restraint; false
imprisonment; blackmail; extortion;
manslaughter; murder; felonious assault;
witness tampering; obstruction of justice;
perjury; fraud in foreign labor contracting (as
defined in section 1351 of title 18, United
States Code); or attempt, conspiracy, or
solicitation to commit any of the above
mentioned crimes; or
(V) subject to section 214(q), an alien who is the
beneficiary (including a child of the principal alien,
if eligible to receive a visa under section 203(d)) of
a petition to accord a status under section
203(a)(2)(A) that was filed with the Attorney General
under section 204 on or before the date of the
enactment of the Legal Immigration Family Equity Act,
if--
(i) such petition has been pending for 3
years or more; or
(ii) such petition has been approved, 3 years
or more have elapsed since such filing date,
and--
(I) an immigrant visa is not
immediately available to the alien
because of a waiting list of applicants
for visas under section 203(a)(2)(A);
or
(II) the alien's application for an
immigrant visa, or the alien's
application for adjustment of status
under section 245, pursuant to the
approval of such petition, remains
pending.
(16) The term ``immigrant visa'' means an immigrant visa
required by this Act and properly issued by a consular officer
at his office outside of the United States to an eligible
immigrant under the provisions of this Act.
(17) The term ``immigration laws'' includes this Act and all
laws, conventions, and treaties of the United States relating
to the immigration, exclusion, deportation, expulsion or
removal of aliens.
(18) The term ``immigration officer'' means any employee or
class of employees of the Service or of the United States
designated by the Attorney General, individually or by
regulation, to perform the functions of an immigration officer
specified by this Act or any section thereof.
(19) The term ``ineligible to citizenship,'' when used in
reference to any individual, means, notwithstanding the
provisions of any treaty relating to military service, an
individual who is, or was at any time, permanently debarred
from becoming a citizen of the United States under section 3(a)
of the Selective Training and Service Act of 1940, as amended
(54 Stat. 885; 55 Stat. 844), or under section 4(a) of the
Selective Service Act of 1948, as amended (62 Stat. 605; 65
Stat. 76), or under any section of this Act, or any other Act,
or under any law amendatory of, supplementary to, or in
substitution for, any of such sections or Acts.
(20) The term ``lawfully admitted for permanent residence''
means the status of having been lawfully accorded the privilege
of residing permanently in the United States as an immigrant in
accordance with the immigration laws, such status not having
changed.
(21) The term ``national'' means a person owing permanent
allegiance to a state.
(22) The term ``national of the United States'' means (A) a
citizen of the United States, or (B) a person who, though not a
citizen of the United States, owes permanent allegiance to the
United States.
(23) The term ``naturalization'' means the conferring of
nationality of a state upon a person after birth, by any means
whatsoever.
(25) The term ``noncombatant service'' shall not include
service in which the individual is not subject to military
discipline, court martial, or does not wear the uniform of any
branch of the armed forces.
(26) The term ``nonimmigrant visa'' means a visa properly
issued to an alien as an eligible nonimmigrant by a competent
officer as provided in this Act.
(27) The term ``special immigrant'' means--
(A) an immigrant, lawfully admitted for permanent
residence, who is returning from a temporary visit
abroad;
(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 September 30, 2015, 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 September 30, 2015, 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--
(i) 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; or
(ii) is the surviving spouse or child of an
employee of the United States Government
abroad: Provided, That the employee performed
faithful service for a total of not less than
15 years or was killed in the line of duty;
(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;
(I)(i) an immigrant who is the unmarried son or
daughter of an officer or employee, or of a former
officer or employee, of an international organization
described in paragraph (15)(G)(i), and who (I) while
maintaining the status of a nonimmigrant under
paragraph (15)(G)(iv) or paragraph (15)(N), has resided
and been physically present in the United States for
periods totaling at least one-half of the seven years
before the date of application for a visa or for
adjustment of status to a status under this
subparagraph and for a period or periods aggregating at
least seven years between the ages of five and 21
years, and (II) applies for a visa or adjustment of
status under this subparagraph no later than his
twenty-fifth birthday or six months after the date of
the enactment of the Immigration Technical Corrections
Act of 1988, whichever is later;
(ii) an immigrant who is the surviving spouse of a
deceased officer or employee of such an international
organization, and who (I) while maintaining the status
of a nonimmigrant under paragraph (15)(G)(iv) or
paragraph (15)(N), has resided and been physically
present in the United States for periods totaling at
least one-half of the seven years before the date of
application for a visa or for adjustment of status to a
status under this subparagraph and for a period or
periods aggregating at least 15 years before the date
of the death of such officer or employee, and (II)
files a petition for status under this subparagraph no
later than six months after the date of such death or
six months after the date of such death or six months
after the date of the enactment of the Immigration
Technical Corrections Act of 1988, whichever is later;
(iii) an immigrant who is a retired officer or
employee of such an international organization, and who
(I) while maintaining the status of a nonimmigrant
under paragraph (15)(G)(iv), has resided and been
physically present in the United States for periods
totaling at least one-half of the seven years before
the date of application for a visa or for adjustment of
status to a status under this subparagraph and for a
period or periods aggregating at least 15 years before
the date of the officer or employee's retirement from
any such international organization, and (II) files a
petition for status under this subparagraph no later
than six months after the date of such retirement or
six months after the date of enactment of the
Immigration and Nationality Technical Corrections Act
of 1994, whichever is later; or
(iv) an immigrant who is the spouse of a retired
officer or employee accorded the status of special
immigrant under clause (iii), accompanying or following
to join such retired officer or employee as a member of
his immediate family;
(J) an immigrant who is present in the United
States--
(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, or an individual or
entity appointed by a State or juvenile court
located in the United States[, and whose
reunification with 1 or both of the immigrant's
parents is not viable due to abuse, neglect,
abandonment, or a similar basis found under
State law];
(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; and
(iii) in whose case the Secretary of Homeland
Security consents to the grant of special
immigrant juvenile status, except that--
(I) no juvenile court has
jurisdiction to determine the custody
status or placement of an alien in the
custody of the Secretary of Health and
Human Services unless the Secretary of
Health and Human Services specifically
consents to such jurisdiction; [and]
(II) 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; and
(III) an alien may not be granted
special immigrant status under this
subparagraph if the alien's
reunification with any one parent or
legal guardian is not precluded by
abuse, neglect, abandonment, or any
similar cause under State law;
(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;
(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 Atlantic 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 American
Competitiveness and Workforce Improvement Act
of 1998
(M) subject to the numerical limitations of section
203(b)(4), an immigrant who seeks to enter the United
States to work as a broadcaster in the United States
for the International Broadcasting Bureau of the
Broadcasting Board of Governors, or for a grantee of
the Broadcasting Board of Governors, and the
immigrant's accompanying spouse and children.
(28) The term ``organization'' means, but is not limited to,
an organization, corporation, company, partnership,
association, trust, foundation or fund; and includes a group of
persons, whether or not incorporated, permanently or
temporarily associated together with joint action on any
subject or subjects.
(29) The term ``outlying possessions of the United States''
means American Samoa and Swains Island.
(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 admission of the
bearer into a foreign country.
(31) The term ``permanent'' means a relationship of
continuing or lasting nature, as distinguished from temporary,
but a relationship may be permanent even though it is one that
may be dissolved eventually at the instance either of the
United States or of the individual, in accordance with law.
(32) The term ``profession'' shall include but not be limited
to architects, engineers, lawyers, physicians, surgeons, and
teachers in elementary or secondary schools, colleges,
academies, or seminaries.
(33) The term ``residence'' means the place of general abode;
the place of general abode of a person means his principal,
actual dwelling place in fact, without regard to intent.
(34) The term ``Service'' means the Immigration and
Naturalization Service of the Department of Justice.
(35) The term ``spouse'', ``wife'', or ``husband'' does not
include a spouse, wife, or husband by reason of any marriage
ceremony where the contracting parties thereto are not
physically present in the presence of each other, unless the
marriage shall have been consummated.
(36) The term ``State'' includes the District of Columbia,
Puerto Rico, Guam, the Virgin Islands of the United States, and
the Commonwealth of the Northern Mariana Islands.
(37) The term ``totalitarian party'' means an organization
which advocates the establishment in the United States of a
totalitarian dictatorship or totalitarianism. The terms
``totalitarian dictatorship'' and ``totalitarianism'' mean and
refer to systems of government not representative in fact,
characterized by (A) the existence of a single political party,
organized on a dictatorial basis, with so close an identity
between such party and its policies and the governmental
policies of the country in which it exists, that the party and
the government constitute an indistinguishable unit, and (B)
the forcible suppression of opposition to such party.
(38) The term ``United States'', except as otherwise
specifically herein provided, when used in a geographical
sense, means the continental United States, Alaska, Hawaii,
Puerto Rico, Guam, the Virgin Islands of the United States, and
the Commonwealth of the Northern Mariana Islands.
(39) The term ``unmarried'', when used in reference to any
individual as of any time, means an individual who at such time
is not married, whether or not previously married.
(40) The term ``world communism'' means a revolutionary
movement, the purpose of which is to establish eventually a
Communist totalitarian dictatorship in any or all the countries
of the world through the medium of an internationally
coordinated Communist political movement.
(41) The term ``graduates of a medical school'' means aliens
who have graduated from a medical school or who have qualified
to practice medicine in a foreign state, other than such aliens
who are of national or international renown in the field of
medicine.
(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, rape, or sexual abuse of a minor;
(B) illicit trafficking in a controlled substance (as
defined in section 102 of the Controlled Substances
Act), including a drug trafficking crime (as defined in
section 924(c) of title 18, United States Code);
(C) illicit trafficking in firearms or destructive
devices (as defined in section 921 of title 18, United
States Code) or in explosive materials (as defined in
section 841(c) of that title);
(D) an offense described in section 1956 of title 18,
United States Code (relating to laundering of monetary
instruments) or section 1957 of that title (relating to
engaging in monetary transactions in property derived
from specific unlawful activity) if the amount of the
funds exceeded $10,000;
(E) an offense described in--
(i) section 842 (h) or (i) of title 18,
United States Code, or section 844 (d), (e),
(f), (g), (h), or (i) of that title (relating
to explosive materials offenses);
(ii) section 922(g) (1), (2), (3), (4), or
(5), (j), (n), (o), (p), or (r) or 924 (b) or
(h) of title 18, United States Code (relating
to firearms offenses); or
(iii) section 5861 of the Internal Revenue
Code of 1986 (relating to firearms offenses);
(F) a crime of violence (as defined in section 16 of
title 18, United States Code, but not including a
purely political offense) for which the term of
imprisonment at least one year;
(G) a theft offense (including receipt of stolen
property) or burglary offense for which the term of
imprisonment imposed (regardless of any suspension of
such imprisonment) at least one year;
(H) an offense described in section 875, 876, 877, or
1202 of title 18, United States Code (relating to the
demand for or receipt of ransom);
(I) an offense described in section 2251, 2251A, or
2252 of title 18, United States Code (relating to child
pornography);
(J) an offense described in section 1962 of title 18,
United States Code (relating to racketeer influenced
corrupt organizations), or an offense described in
section 1084 (if it is a second or subsequent offense)
or 1955 of that title (relating to gambling offenses),
for which a sentence of one year imprisonment or more
may be imposed;
(K) an offense that--
(i) relates to the owning, controlling,
managing, or supervising of a prostitution
business;
(ii) is described in section 2421, 2422, or
2423 of title 18, United States Code (relating
to transportation for the purpose of
prostitution) if committed for commercial
advantage; or
(iii) is described in any of sections 1581-
1585 or 1588-1591 of title 18, United States
Code (relating to peonage, slavery, involuntary
servitude, and trafficking in persons);
(L) an offense described in--
(i) section 793 (relating to gathering or
transmitting national defense information), 798
(relating to disclosure of classified
information), 2153 (relating to sabotage) or
2381 or 2382 (relating to treason) of title 18,
United States Code;
(ii) section 601 of the National Security Act
of 1947 (50 U.S.C. 421) (relating to protecting
the identity of undercover intelligence
agents); or
(iii) section 601 of the National Security
Act of 1947 (relating to protecting the
identity of undercover agents);
(M) an offense that--
(i) involves fraud or deceit in which the
loss to the victim or victims exceeds $10,000;
or
(ii) is described in section 7201 of the
Internal Revenue Code of 1986 (relating to tax
evasion) in which the revenue loss to the
Government exceeds $10,000;
(N) an offense described in paragraph (1)(A) or (2)
of section 274(a) (relating to alien smuggling), except
in the case of a first offense for which the alien has
affirmatively shown that the alien committed the
offense for the purpose of assisting, abetting, or
aiding only the alien's spouse, child, or parent (and
no other individual) to violate a provision of this Act
(O) an offense described in section 275(a) or 276
committed by an alien who was previously deported on
the basis of a conviction for an offense described in
another subparagraph of this paragraph;
(P) an offense (i) which either is falsely making,
forging, counterfeiting, mutilating, or altering a
passport or instrument in violation of section 1543 of
title 18, United States Code, or is described in
section 1546(a) of such title (relating to document
fraud) and (ii) for which the term of imprisonment
imposed (regardless of any suspension of such
imprisonment) is at least 12 months, except in the case
of a first offense for which the alien has
affirmatively shown that the alien committed the
offense for the purpose of assisting, abetting, or
aiding only the alien's spouse, child, or parent (and
no other individual) to violate a provision of this
Act;
(Q) an offense relating to a failure to appear by a
defendant for service of sentence if the underlying
offense is punishable by imprisonment for a term of 5
years or more;
(R) an offense relating to commercial bribery,
counterfeiting, forgery, or trafficking in vehicles the
identification numbers of which have been altered for
which the term of imprisonment is at least one year;
(S) an offense relating to obstruction of justice,
perjury or subornation of perjury, or bribery of a
witness, for which the term of imprisonment is at least
one year;
(T) an offense relating to a failure to appear before
a court pursuant to a court order to answer to or
dispose of a charge of a felony for which a sentence of
2 years' imprisonment or more may be imposed; and
(U) 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
(including any effective date), the term applies regardless of
whether the conviction was entered before, on, or after the
date of enactment of this paragraph.
(44)(A) The term ``managerial capacity'' means an assignment
within an organization in which the employee primarily--
(i) manages the organization, or a department,
subdivision, function, or component of the
organization;
(ii) supervises and controls the work of other
supervisory, professional, or managerial employees, or
manages an essential function within the organization,
or a department or subdivision of the organization;
(iii) if another employee or other employees are
directly supervised, has the authority to hire and fire
or recommend those as well as other personnel actions
(such as promotion and leave authorization) or, if no
other employee is directly supervised, functions at a
senior level within the organizational hierarchy or
with respect to the function managed; and
(iv) exercises discretion over the day-to-day
operations of the activity or function for which the
employee has authority.
A first-line supervisor is not considered to be acting in a
managerial capacity merely by virtue of the supervisor's
supervisory duties unless the employees supervised are
professional.
(B) The term ``executive capacity'' means an assignment
within an organization in which the employee primarily--
(i) directs the management of the organization or a
major component or function of the organization;
(ii) establishes the goals and policies of the
organization, component, or function;
(iii) exercises wide latitude in discretionary
decision-making; and
(iv) receives only general supervision or direction
from higher level executives, the board of directors,
or stockholders of the organization.
(C) If staffing levels are used as a factor in determining
whether an individual is acting in a managerial or executive
capacity, the Attorney General shall take into account the
reasonable needs of the organization, component, or function in
light of the overall purpose and stage of development of the
organization, component, or function. An individual shall not
be considered to be acting in a managerial or executive
capacity (as previously defined) merely on the basis of the
number of employees that the individual supervises or has
supervised or directs or has directed.
(45) The term ``substantial'' means, for purposes of
paragraph (15)(E) with reference to trade or capital, such an
amount of trade or capital as is established by the Secretary
of State, after consultation with appropriate agencies of
Government.
(46) The term ``extraordinary ability'' means, for purposes
of section 101(a)(15)(O)(i), in the case of the arts,
distinction.
(47)(A) The term ``order of deportation'' means the order of
the special inquiry officer, or other such administrative
officer to whom the Attorney General has delegated the
responsibility for determining whether an alien is deportable,
concluding that the alien is deportable or ordering
deportation.
(B) The order described under subparagraph (A) shall become
final upon the earlier of--
(i) a determination by the Board of Immigration
Appeals affirming such order; or
(ii) the expiration of the period in which the alien
is permitted to seek review of such order by the Board
of Immigration Appeals.
(48)(A) The term ``conviction'' means, with respect to an
alien, a formal judgment of guilt of the alien entered by a
court or, if adjudication of guilt has been withheld, where--
(i) 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, and
(ii) the judge has ordered some form of punishment,
penalty, or restraint on the alien's liberty to be
imposed.
(B) Any reference to a term of imprisonment or a sentence
with respect to an offense is deemed to include the period of
incarceration or confinement ordered by a court of law
regardless of any suspension of the imposition or execution of
that imprisonment or sentence in whole or in part.
(49) 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.
(50) The term ``intended spouse'' means any alien who meets
the criteria set forth in section
204(a)(1)(A)(iii)(II)(aa)(BB), 204(a)(1)(B)(ii)(II)(aa)(BB), or
240A(b)(2)(A)(i)(III).
(51) The term ``VAWA self-petitioner'' means an
alien, or a child of the alien, who qualifies for
relief under--
(A) clause (iii), (iv), or (vii) of section
204(a)(1)(A);
(B) clause (ii) or (iii) of section
204(a)(1)(B);
(C) section 216(c)(4)(C);
(D) the first section of Public Law 89-732 (8
U.S.C. 1255 note) (commonly known as the Cuban
Adjustment Act) as a child or spouse who has
been battered or subjected to extreme cruelty;
(E) section 902(d)(1)(B) of the Haitian
Refugee Immigration Fairness Act of 1998 (8
U.S.C. 1255 note);
(F) section 202(d)(1) of the Nicaraguan
Adjustment and Central American Relief Act; or
(G) section 309 of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996
(division C of Public Law 104-208).
(52) The term ``accredited language training program'' means
a language training program that is accredited by an
accrediting agency recognized by the Secretary of Education.
(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;
(B) a stepchild, whether or not born out of wedlock,
provided the child had not reached the age of eighteen
years at the time the marriage creating the status of
stepchild occurred;
(C) 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 or outside the United
States, if such legitimation takes place before the
child reaches the age of eighteen years and the child
is in the legal custody of the legitimating parent or
parents at the time of such legitimation;
(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)(i) 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 or if the child has been
battered or subject to extreme cruelty by the adopting
parent or by a family member of the adopting parent
residing in the same household: 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
(ii) subject to the same proviso as in clause (i), a
child who: (I) is a natural sibling of a child
described in clause (i) or subparagraph (F)(i); (II)
was adopted by the adoptive parent or parents of the
sibling described in such clause or subparagraph; and
(III) is otherwise described in clause (i), except that
the child was adopted while under the age of 18 years;
or
(F)(i) 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), 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 who is at
least 25 years of age, at least 1 of whom personally
saw and observed the child before 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
(ii) subject to the same provisos as in clause (i), a
child who: (I) is a natural sibling of a child
described in clause (i) or subparagraph (E)(i); (II)
has been adopted abroad, or is coming to the United
States for adoption, by the adoptive parent (or
prospective adoptive parent) or parents of the sibling
described in such clause or subparagraph; and (III) is
otherwise described in clause (i), except that the
child is under the age of 18 at the time a petition is
filed in his or her behalf to accord a classification
as an immediate relative under section 201(b).
(G)(i) a child, younger than 16 years of age at the
time a petition is filed on the child's behalf to
accord a classification as an immediate relative under
section 201(b), who has been adopted in a foreign state
that is a party to the Convention on Protection of
Children and Co-operation in Respect of Intercountry
Adoption, done at The Hague on May 29, 1993, or who is
emigrating from such a foreign state to be adopted in
the United States by a United States citizen and spouse
jointly or by an unmarried United States citizen who is
at least 25 years of age, Provided, That--
(I) the Secretary of Homeland
Security is satisfied that proper care
will be furnished the child if admitted
to the United States;
(II) the child's natural parents (or
parent, in the case of a child who has
one sole or surviving parent because of
the death or disappearance of,
abandonment or desertion by, the other
parent), or other persons or
institutions that retain legal custody
of the child, have freely given their
written irrevocable consent to the
termination of their legal relationship
with the child, and to the child's
emigration and adoption;
(III) in the case of a child having
two living natural parents, the natural
parents are incapable of providing
proper care for the child;
(IV) the Secretary of Homeland
Security is satisfied that the purpose
of the adoption is to form a bona fide
parent-child relationship, and the
parent-child relationship of the child
and the natural parents has been
terminated (and in carrying out both
obligations under this subclause the
Secretary of Homeland Security may
consider whether there is a petition
pending to confer immigrant status on
one or both of such natural parents);
and
(V) in the case of a child who has
not been adopted--
(aa) the competent authority
of the foreign state has
approved the child's emigration
to the United States for the
purpose of adoption by the
prospective adoptive parent or
parents; and
(bb) the prospective adoptive
parent or parents has or have
complied with any pre-adoption
requirements of the child's
proposed residence; and
(ii) except 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 chapter; or
(iii) subject to the same provisos as in
clauses (i) and (ii), a child who--
(I) is a natural sibling of a child
described in clause (i), subparagraph
(E)(i), or subparagraph (F)(i);
(II) was adopted abroad, or is coming
to the United States for adoption, by
the adoptive parent (or prospective
adoptive parent) or parents of the
sibling described in clause (i),
subparagraph (E)(i), or subparagraph
(F)(i); and
(III) is otherwise described in
clause (i), except that the child is
younger than 18 years of age at the
time a petition is filed on his or her
behalf for classification as an
immediate relative under section
201(b).
(2) The term ``parent'', ``father'', or ``mother'' means a
parent, father, or mother only where the relationship exists by
reason of any of the circumstances set forth in (1) above,
except that, for purposes of paragraph (1)(F) (other than the
second proviso therein) in the case of a child born out of
wedlock described in paragraph (1)(D) (and not described in
paragraph (1)(C)), the term ``parent'' does not include the
natural father or the child if the father has disappeared or
abandoned or deserted the child or if the father has in writing
irrevocably released the child for emigration and adoption.
(3) The term ``person'' means an individual or an
organization.
(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.
(5) The term ``adjacent islands'' includes Saint Pierre,
Miquelon, Cuba, the Dominican Republic, Haiti, Bermuda, the
Bahamas, Barbados, Jamaica, the Windward and Leeward Islands,
Trinidad, Martinique, and other British, French, and
Netherlands territory or possessions in or bordering on the
Caribbean Sea.
(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 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 16 years (except to the
extent that the child is described in subparagraph (E)(ii) or
(F)(ii) of subsection (b)(1)), and the child is in the legal
custody of the legitimating or adopting parent or parents at
the time of such legitimation or adoption.
(2) The terms ``parent'', ``father'', and ``mother'' include
in the case of a posthumous child a deceased parent, father,
and mother.
(e) For the purpose of this Act--
(1) The giving, loaning, or promising of support or of money
or any other thing of value to be used for advocating any
doctrine shall constitute the advocating of such doctrine; but
nothing in this paragraph shall be construed as an exclusive
definition of advocating.
(2) The giving, loaning, or promising of support or of money
or any other thing of value for any purpose to any organization
shall be presumed to constitute affiliation therewith; but
nothing in this paragraph shall be construed as an exclusive
definition of affiliation.
(3) Advocating the economic, international, and governmental
doctrines of world communism means advocating the establishment
of a totalitarian Communist dictatorship in any or all of the
countries of the world through the medium of an internationally
coordinated Communist movement.
(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) a habitual drunkard;
(3) a member of one or more of the classes of
persons, whether inadmissible or not, described in
paragraphs (2)(D), (6)(E), and (10)(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;
(4) one whose income is derived principally from
illegal gambling activities;
(5) one who has been convicted of two or more
gambling offenses committed during such period;
(6) one who has given false testimony for the purpose
of obtaining any benefits under this Act;
(7) one who during such period has been confined, as
a result of conviction, to a penal institution for an
aggregate period of one hundred and eighty days or
more, regardless of whether the offense, or offenses,
for which he has been confined were committed within or
without such period;
(8) one who at any time has been convicted of an
aggravated felony (as defined in subsection (a)(43));
or
(9) one who at any time has engaged in conduct
described in section 212(a)(3)(E) (relating to
assistance in Nazi persecution, participation in
genocide, or commission of acts of torture or
extrajudicial killings) or 212(a)(2)(G) (relating to
severe violations of religious freedom).
The fact that any person is not within any of the foregoing
classes shall not preclude a finding that for other reasons
such person is or was not of good moral character. In the case
of an alien who makes a false statement or claim of
citizenship, or who registers to vote or votes in a Federal,
State, or local election (including an initiative, recall, or
referendum) in violation of a lawful restriction of such
registration or voting to citizens, if each natural parent of
the alien (or, in the case of an adopted alien, each adoptive
parent of the alien) is or was a citizen (whether by birth or
naturalization), the alien permanently resided in the United
States prior to attaining the age of 16, and the alien
reasonably believed at the time of such statement, claim, or
violation that he or she was a citizen, no finding that the
alien is, or was, not of good moral character may be made based
on it.
(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.
(h) For purposes of section 212(a)(2)(E), the term ``serious
criminal offense'' means--
(1) any felony;
(2) any crime of violence, as defined in section 16
of title 18 of the United States Code; or
(3) any crime of reckless driving or of driving while
intoxicated or under the influence of alcohol or of
prohibited substances if such crime involves personal
injury to another.
(i) With respect to each nonimmigrant alien described in
subsection (a)(15)(T)(i)--
(1) the Secretary of Homeland Security, the Attorney
General, and other Government officials, where
appropriate, shall provide the alien with a referral to
a nongovernmental organization that would advise the
alien regarding the alien's options while in the United
States and the resources available to the alien; and
(2) the Secretary of Homeland Security shall, during
the period the alien is in lawful temporary resident
status under that subsection, grant the alien
authorization to engage in employment in the United
States and provide the alien with an ``employment
authorized'' endorsement or other appropriate work
permit.
* * * * * * *
TITLE II--IMMIGRATION
Chapter 1--Selection System
* * * * * * *
asylum
Sec. 208. (a) Authority To Apply for Asylum.--
(1) In general.--Any alien who is physically present
in the United States and has arrived in the United
States at a port of entry (including an alien who is
brought to the United States after having been
interdicted in international or United States waters),
[or who arrives in the United States (whether or not at
a designated port of arrival and including an alien who
is brought to the United States after having been
interdicted in international or United States waters),]
irrespective of such alien's status, may apply for
asylum in accordance with this section or, where
applicable, section 235(b).
(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,
pursuant to a bilateral or multilateral
agreement, to] if the Attorney General or the
Secretary of Homeland Security determines--
(i) that the alien may be removed 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
or the Secretary, on a case by case
basis, finds that it is in the public
interest for the alien to receive
asylum in the United States[.]; or
(ii) that the alien entered,
attempted to enter, or arrived in the
United States after transiting through
at least one country outside the
alien's country of citizenship,
nationality, or last lawful habitual
residence en route to the United
States, unless--
(I) the alien demonstrates
that he or she applied for
protection from persecution or
torture in at least one country
outside the alien's country of
citizenship, nationality, or
last lawful habitual residence
through which the alien
transited en route to the
United States, and the alien
received a final judgment
denying the alien protection in
each country;
(II) the alien demonstrates
that he or she was a victim of
a severe form of trafficking in
which a commercial sex act was
induced by force, fraud, or
coercion, or in which the
person induced to perform such
act was under the age of 18
years; or in which the
trafficking included the
recruitment, harboring,
transportation, provision, or
obtaining of a person for labor
or services through the use of
force, fraud, or coercion for
the purpose of subjection to
involuntary servitude, peonage,
debt bondage, or slavery, and
was unable to apply for
protection from persecution in
each country through which the
alien transited en route to the
United States as a result of
such severe form of
trafficking; or
(III) the only countries
through which the alien
transited en route to the
United States were, at the time
of the transit, not parties to
the 1951 United Nations
Convention relating to the
Status of Refugees, the 1967
Protocol Relating to the Status
of Refugees, or the United
Nations Convention against
Torture and Other Cruel,
Inhuman or Degrading Treatment
or Punishment.
(B) Time limit.--Subject to subparagraph (D),
paragraph (1) shall not apply to an alien
unless the alien demonstrates by clear and
convincing evidence that the application has
been filed within 1 year after the date of the
alien's arrival in the United States.
(C) Previous asylum applications.--Subject to
subparagraph (D), paragraph (1) shall not apply
to an alien if the alien has previously applied
for asylum and had such application denied.
(D) Changed circumstances.--An application
for asylum of an alien may be considered,
notwithstanding subparagraphs (B) and (C), if
the alien demonstrates to the satisfaction of
the Secretary of Homeland Security or the
Attorney General either the existence of
changed circumstances which materially affect
the applicant's eligibility for asylum or
extraordinary circumstances relating to the
delay in filing an application within the
period specified in subparagraph (B).
(E) Applicability.--Subparagraphs (A) and (B)
shall not apply to an unaccompanied alien child
(as defined in section 462(g) of the Homeland
Security Act of 2002 (6 U.S.C. 279(g))).
(3) Limitation on judicial review.--No court shall
have jurisdiction to review any determination of the
Secretary of Homeland Security or the Attorney General
under paragraph (2).
(b) Conditions for Granting Asylum.--
(1) In general.--
(A) Eligibility.--The Secretary of Homeland
Security or the Attorney General may grant
asylum to an alien who has applied for asylum
in accordance with the requirements and
procedures established by the Secretary of
Homeland Security or the Attorney General under
this section if the Secretary of Homeland
Security or the Attorney General determines
that such alien is a refugee within the meaning
of section 101(a)(42)(A) (in accordance with
the rules set forth in this section), and is
eligible to apply for asylum under subsection
(a).
(B) Burden of proof.--
(i) In general.--The burden of proof
is on the applicant to establish that
the applicant is a refugee, within the
meaning of section 101(a)(42)(A). To
establish that the applicant is a
refugee within the meaning of such
section, the applicant must establish
that race, religion, nationality,
membership in a particular social
group, or political opinion was or will
be at least one central reason for
persecuting the applicant.
(ii) Sustaining burden.--The
testimony of the applicant may be
sufficient to sustain the applicant's
burden without corroboration, but only
if the applicant satisfies the trier of
fact that the applicant's testimony is
credible, is persuasive, and refers to
specific facts sufficient to
demonstrate that the applicant is a
refugee. In determining whether the
applicant has met the applicant's
burden, the trier of fact may weigh the
credible testimony along with other
evidence of record. Where the trier of
fact determines that the applicant
should provide evidence that
corroborates otherwise credible
testimony, such evidence must be
provided unless the applicant does not
have the evidence and cannot reasonably
obtain the evidence.
(iii) Credibility determination.--
Considering the totality of the
circumstances, and all relevant
factors, a trier of fact may base a
credibility determination on the
demeanor, candor, or responsiveness of
the applicant or witness, the inherent
plausibility of the applicant's or
witness's account, the consistency
between the applicant's or witness's
written and oral statements (whenever
made and whether or not under oath, and
considering the circumstances under
which the statements were made), the
internal consistency of each such
statement, the consistency of such
statements with other evidence of
record (including the reports of the
Department of State on country
conditions), and any inaccuracies or
falsehoods in such statements, without
regard to whether an inconsistency,
inaccuracy, or falsehood goes to the
heart of the applicant's claim, or any
other relevant factor. There is no
presumption of credibility, however, if
no adverse credibility determination is
explicitly made, the applicant or
witness shall have a rebuttable
presumption of credibility on appeal.
[(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 described in
subclause (I), (II), (III), (IV), or
(VI) of section 212(a)(3)(B)(i) or
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, consistent with
this section, 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).]
(2) Exceptions.--
(A) In general.--Paragraph (1) shall not
apply to an alien if the Secretary of Homeland
Security or 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 has been convicted of
any felony under Federal, State,
tribal, or local law;
(iii) the alien has been convicted of
any misdemeanor offense under Federal,
State, tribal, or local law involving--
(I) the unlawful possession
or use of an identification
document, authentication
feature, or false
identification document (as
those terms and phrases are
defined in the jurisdiction
where the conviction occurred),
unless the alien can establish
that the conviction resulted
from circumstances showing
that--
(aa) the document or
feature was presented
before boarding a
common carrier;
(bb) the document or
feature related to the
alien's eligibility to
enter the United
States;
(cc) the alien used
the document or feature
to depart a country
wherein the alien has
claimed a fear of
persecution; and
(dd) the alien
claimed a fear of
persecution without
delay upon presenting
himself or herself to
an immigration officer
upon arrival at a
United States port of
entry;
(II) the unlawful receipt of
a Federal public benefit (as
defined in section 401(c) of
the Personal Responsibility and
Work Opportunity Reconciliation
Act of 1996 (8 U.S.C.
1611(c))), from a Federal
entity, or the unlawful receipt
of similar public benefits from
a State, tribal, or local
entity; or
(III) possession or
trafficking of a controlled
substance or controlled
substance paraphernalia, as
those phrases are defined under
the law of the jurisdiction
where the conviction occurred,
other than a single offense
involving possession for one's
own use of 30 grams or less of
marijuana (as marijuana is
defined under the law of the
jurisdiction where the
conviction occurred);
(iv) the alien has been convicted of
an offense arising under paragraph
(1)(A) or (2) of section 274(a), or
under section 276;
(v) the alien has been convicted of a
Federal, State, tribal, or local crime
that the Attorney General or Secretary
of Homeland Security knows, or has
reason to believe, was committed in
support, promotion, or furtherance of
the activity of a criminal street gang
(as defined under the law of the
jurisdiction where the conviction
occurred or in section 521(a) of title
18, United States Code);
(vi) the alien has been convicted of
an offense for driving while
intoxicated or impaired, as those terms
are defined under the law of the
jurisdiction where the conviction
occurred (including a conviction for
driving while under the influence of or
impaired by alcohol or drugs), without
regard to whether the conviction is
classified as a misdemeanor or felony
under Federal, State, tribal, or local
law, in which such intoxicated or
impaired driving was a cause of serious
bodily injury or death of another
person;
(vii) the alien has been convicted of
more than one offense for driving while
intoxicated or impaired, as those terms
are defined under the law of the
jurisdiction where the conviction
occurred (including a conviction for
driving while under the influence of or
impaired by alcohol or drugs), without
regard to whether the conviction is
classified as a misdemeanor or felony
under Federal, State, tribal, or local
law;
(viii) the alien has been convicted
of a crime--
(I) that involves conduct
amounting to a crime of
stalking;
(II) of child abuse, child
neglect, or child abandonment;
or
(III) that involves conduct
amounting to a domestic assault
or battery offense, including--
(aa) a misdemeanor
crime of domestic
violence, as described
in section 921(a)(33)
of title 18, United
States Code;
(bb) a crime of
domestic violence, as
described in section
40002(a)(12) of the
Violence Against Women
Act of 1994 (34 U.S.C.
12291(a)(12)); or
(cc) any crime based
on conduct in which the
alien harassed,
coerced, intimidated,
voluntarily or
recklessly used (or
threatened to use)
force or violence
against, or inflicted
physical injury or
physical pain, however
slight, upon a person--
(AA) who is a
current or
former spouse
of the alien;
(BB) with
whom the alien
shares a child;
(CC) who is
cohabitating
with, or who
has cohabitated
with, the alien
as a spouse;
(DD) who is
similarly
situated to a
spouse of the
alien under the
domestic or
family violence
laws of the
jurisdiction
where the
offense
occurred; or
(EE) who is
protected from
that alien's
acts under the
domestic or
family violence
laws of the
United States
or of any
State, tribal
government, or
unit of local
government;
(ix) the alien has engaged in acts of
battery or extreme cruelty upon a
person and the person--
(I) is a current or former
spouse of the alien;
(II) shares a child with the
alien;
(III) cohabitates or has
cohabitated with the alien as a
spouse;
(IV) is similarly situated to
a spouse of the alien under the
domestic or family violence
laws of the jurisdiction where
the offense occurred; or
(V) is protected from that
alien's acts under the domestic
or family violence laws of the
United States or of any State,
tribal government, or unit of
local government;
(x) the alien, having been convicted
by a final judgment of a particularly
serious crime, constitutes a danger to
the community of the United States;
(xi) 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;
(xii) there are reasonable grounds
for regarding the alien as a danger to
the security of the United States;
(xiii) the alien is described in
subclause (I), (II), (III), (IV), or
(VI) of section 212(a)(3)(B)(i) or
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 Secretary of
Homeland Security or the Attorney
General determines, in the Secretary's
or 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;
(xiv) the alien was firmly resettled
in another country prior to arriving in
the United States; or
(xv) there are reasonable grounds for
concluding the alien could avoid
persecution by relocating to another
part of the alien's country of
nationality or, in the case of an alien
having no nationality, another part of
the alien's country of last habitual
residence.
(B) Special rules.--
(i) Particularly serious crime;
serious nonpolitical crime outside the
united states.--
(I) In general.--For purposes
of subparagraph (A)(x), the
Attorney General or Secretary
of Homeland Security, in their
discretion, may determine that
a conviction constitutes a
particularly serious crime
based on--
(aa) the nature of
the conviction;
(bb) the type of
sentence imposed; or
(cc) the
circumstances and
underlying facts of the
conviction.
(II) Determination.--In
making a determination under
subclause (I), the Attorney
General or Secretary of
Homeland Security may consider
all reliable information and is
not limited to facts found by
the criminal court or provided
in the underlying record of
conviction.
(III) Treatment of
felonies.--In making a
determination under subclause
(I), an alien who has been
convicted of a felony (as
defined under this section) or
an aggravated felony (as
defined under section
101(a)(43)), shall be
considered to have been
convicted of a particularly
serious crime.
(IV) Interpol red notice.--In
making a determination under
subparagraph (A)(xi), an
Interpol Red Notice may
constitute reliable evidence
that the alien has committed a
serious nonpolitical crime
outside the United States.
(ii) Crimes and exceptions.--
(I) Driving while intoxicated
or impaired.--A finding under
subparagraph (A)(vi) does not
require the Attorney General or
Secretary of Homeland Security
to find the first conviction
for driving while intoxicated
or impaired (including a
conviction for driving while
under the influence of or
impaired by alcohol or drugs)
as a predicate offense. The
Attorney General or Secretary
of Homeland Security need only
make a factual determination
that the alien previously was
convicted for driving while
intoxicated or impaired as
those terms are defined under
the jurisdiction where the
conviction occurred (including
a conviction for driving while
under the influence of or
impaired by alcohol or drugs).
(II) Stalking and other
crimes.--In making a
determination under
subparagraph (A)(viii),
including determining the
existence of a domestic
relationship between the alien
and the victim, the underlying
conduct of the crime may be
considered, and the Attorney
General or Secretary of
Homeland Security is not
limited to facts found by the
criminal court or provided in
the underlying record of
conviction.
(III) Battery or extreme
cruelty.--In making a
determination under
subparagraph (A)(ix), the
phrase ``battery or extreme
cruelty'' includes--
(aa) any act or
threatened act of
violence, including any
forceful detention,
which results or
threatens to result in
physical or mental
injury;
(bb) psychological or
sexual abuse or
exploitation, including
rape, molestation,
incest, or forced
prostitution, shall be
considered acts of
violence; and
(cc) other abusive
acts, including acts
that, in and of
themselves, may not
initially appear
violent, but that are a
part of an overall
pattern of violence.
(IV) Exception for victims of
domestic violence.--An alien
who was convicted of an offense
described in clause (viii) or
(ix) of subparagraph (A) is not
ineligible for asylum on that
basis if the alien satisfies
the criteria under section
237(a)(7)(A).
(C) Specific circumstances.--Paragraph (1)
shall not apply to an alien whose claim is
based on--
(i) personal animus or retribution,
including personal animus in which the
alleged persecutor has not targeted, or
manifested an animus against, other
members of an alleged particular social
group in addition to the member who has
raised the claim at issue;
(ii) the applicant's generalized
disapproval of, disagreement with, or
opposition to criminal, terrorist,
gang, guerilla, or other non-state
organizations absent expressive
behavior in furtherance of a discrete
cause against such organizations
related to control of a State or
expressive behavior that is
antithetical to the State or a legal
unit of the State;
(iii) the applicant's resistance to
recruitment or coercion by guerrilla,
criminal, gang, terrorist, or other
non-state organizations;
(iv) the targeting of the applicant
for criminal activity for financial
gain based on wealth or affluence or
perceptions of wealth or affluence;
(v) the applicant's criminal
activity; or
(vi) the applicant's perceived, past
or present, gang affiliation.
(D) Definitions and clarifications.--
(i) Definitions.--For purposes of
this paragraph:
(I) Felony.--The term
``felony'' means--
(aa) any crime
defined as a felony by
the relevant
jurisdiction (Federal,
State, tribal, or
local) of conviction;
or
(bb) any crime
punishable by more than
one year of
imprisonment.
(II) Misdemeanor.--The term
``misdemeanor'' means--
(aa) any crime
defined as a
misdemeanor by the
relevant jurisdiction
(Federal, State,
tribal, or local) of
conviction; or
(bb) any crime not
punishable by more than
one year of
imprisonment.
(ii) Clarifications.--
(I) Construction.--For
purposes of this paragraph,
whether any activity or
conviction also may constitute
a basis for removal is
immaterial to a determination
of asylum eligibility.
(II) Attempt, conspiracy, or
solicitation.--For purposes of
this paragraph, all references
to a criminal offense or
criminal conviction shall be
deemed to include any attempt,
conspiracy, or solicitation to
commit the offense or any other
inchoate form of the offense.
(III) Effect of certain
orders.--
(aa) In general.--No
order vacating a
conviction, modifying a
sentence, clarifying a
sentence, or otherwise
altering a conviction
or sentence shall have
any effect under this
paragraph unless the
Attorney General or
Secretary of Homeland
Security determines
that--
(AA) the
court issuing
the order had
jurisdiction
and authority
to do so; and
(BB) the
order was not
entered for
rehabilitative
purposes or for
purposes of
ameliorating
the immigration
consequences of
the conviction
or sentence.
(bb) Ameliorating
immigration
consequences.--For
purposes of item
(aa)(BB), the order
shall be presumed to be
for the purpose of
ameliorating
immigration
consequences if--
(AA) the
order was
entered after
the initiation
of any
proceeding to
remove the
alien from the
United States;
or
(BB) the
alien moved for
the order more
than one year
after the date
of the original
order of
conviction or
sentencing,
whichever is
later.
(cc) Authority of
immigration judge.--An
immigration judge is
not limited to
consideration only of
material included in
any order vacating a
conviction, modifying a
sentence, or clarifying
a sentence to determine
whether such order
should be given any
effect under this
paragraph, but may
consider such
additional information
as the immigration
judge determines
appropriate.
(E) Additional limitations.--The Secretary of
Homeland Security or the Attorney General may
by regulation establish additional limitations
and conditions, consistent with this section,
under which an alien shall be ineligible for
asylum under paragraph (1).
(F) No judicial review.--There shall be no
judicial review of a determination of the
Secretary of Homeland Security or the Attorney
General under subparagraph (A)(xiii).
(3) Treatment of spouse and children.--
(A) In general.--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.
(B) Continued classification of certain
aliens as children.--An unmarried alien who
seeks to accompany, or follow to join, a parent
granted asylum under this subsection, and who
was under 21 years of age on the date on which
such parent applied for asylum under this
section, shall continue to be classified as a
child for purposes of this paragraph and
section 209(b)(3), if the alien attained 21
years of age after such application was filed
but while it was pending.
(C) Initial jurisdiction.--An asylum officer
(as defined in section 235(b)(1)(E)) shall have
initial jurisdiction over any asylum
application filed by an unaccompanied alien
child (as defined in section 462(g) of the
Homeland Security Act of 2002 (6 U.S.C.
279(g))), regardless of whether filed in
accordance with this section or section 235(b).
(c) Asylum Status.--
(1) In general.--In the case of an alien granted
asylum under subsection (b), the [Attorney General]
Secretary of Homeland Security--
(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]
Secretary of Homeland Security.
(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 Secretary of Homeland Security or 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, 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 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
or her 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 Secretary of Homeland
Security or the Attorney General in accordance with
sections 240 and 241.
(d) Asylum Procedure.--
(1) Applications.--The Secretary of Homeland Security
or the Attorney General shall establish a procedure for
the consideration of asylum applications filed under
subsection (a). The Secretary of Homeland Security or
the Attorney General may require applicants to submit
fingerprints and a photograph at such time and in such
manner to be determined by regulation by the Secretary
of Homeland Security or 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). Such fees
shall not exceed the Attorney General's costs in
adjudicating the applications. 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 accorance with section
286(m).]
(2) Employment authorization.--
(A) Authorization permitted.--An applicant
for asylum is not entitled to employment
authorization, but such authorization may be
provided under regulation by the Secretary of
Homeland Security. An applicant who is not
otherwise eligible for employment authorization
shall not be granted such authorization prior
to the date that is 180 days after the date of
filing of the application for asylum.
(B) Termination.--Each grant of employment
authorization under subparagraph (A), and any
renewal or extension thereof, shall be valid
for a period of 6 months, except that such
authorization, renewal, or extension shall
terminate prior to the end of such 6 month
period as follows:
(i) Immediately following the denial
of an asylum application by an asylum
officer, unless the case is referred to
an immigration judge.
(ii) 30 days after the date on which
an immigration judge denies an asylum
application, unless the alien timely
appeals to the Board of Immigration
Appeals.
(iii) Immediately following the
denial by the Board of Immigration
Appeals of an appeal of a denial of an
asylum application.
(C) Renewal.--The Secretary of Homeland
Security may not grant, renew, or extend
employment authorization to an alien if the
alien was previously granted employment
authorization under subparagraph (A), and the
employment authorization was terminated
pursuant to a circumstance described in
subparagraph (B)(i), (ii), or (iii), unless a
Federal court of appeals remands the alien's
case to the Board of Immigration Appeals.
(D) Ineligibility.--The Secretary of Homeland
Security may not grant employment authorization
to an alien under this paragraph if the alien--
(i) is ineligible for asylum under
subsection (b)(2)(A); or
(ii) entered or attempted to enter
the United States at a place and time
other than lawfully through a United
States port of entry.
(3) Fees.--
(A) Application fee.--A fee of not less than
$50 for each application for asylum shall be
imposed. Such fee shall not exceed the cost of
adjudicating the application. Such fee shall
not apply to an unaccompanied alien child who
files an asylum application in proceedings
under section 240.
(B) Employment authorization.--A fee may also
be imposed for the consideration of an
application for employment authorization under
this section and for adjustment of status under
section 209(b). Such a fee shall not exceed the
cost of adjudicating the application.
(C) Payment.--Fees under this paragraph may
be assessed and paid over a period of time or
by installments.
(D) Rule of construction.--Nothing in this
paragraph shall be construed to limit the
authority of the Attorney General or Secretary
of Homeland Security 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 Secretary of Homeland
Security or 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[.]; and
(C) ensure that a written warning appears on
the asylum application advising the alien of
the consequences of filing a frivolous
application and serving as notice to the alien
of the consequence of filing a frivolous
application.
(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] Secretary of
Homeland Security 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
Secretary of Homeland Security or 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.--[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.]
(A) In general._If the Secretary of Homeland
Security or 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)(C), the
alien shall be permanently ineligible for any
benefits under this chapter, effective as the
date of the final determination of such an
application.
(B) Criteria._An application is frivolous if
the Secretary of Homeland Security or the
Attorney General determines, consistent with
subparagraph (C), that--
(i) it is so insufficient in
substance that it is clear that the
applicant knowingly filed the
application solely or in part to delay
removal from the United States, to seek
employment authorization as an
applicant for asylum pursuant to
regulations issued pursuant to
paragraph (2), or to seek issuance of a
Notice to Appear in order to pursue
Cancellation of Removal under section
240A(b); or
(ii) any of the material elements are
knowingly fabricated.
(C) Sufficient opportunity to clarify._In
determining that an application is frivolous,
the Secretary or the Attorney General, must be
satisfied that the applicant, during the course
of the proceedings, has had sufficient
opportunity to clarify any discrepancies or
implausible aspects of the claim.
(D) Withholding of removal not precluded._For
purposes of this section, a finding that an
alien filed a frivolous asylum application
shall not preclude the alien from seeking
withholding of removal under section 241(b)(3)
or protection pursuant to the Convention
Against Torture.
(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.
(e) Commonwealth of the Northern Mariana Islands.--The
provisions of this section and section 209(b) shall apply to
persons physically present in the Commonwealth of the Northern
Mariana Islands or arriving in the Commonwealth (whether or not
at a designated port of arrival and including persons who are
brought to the Commonwealth after having been interdicted in
international or United States waters) only on or after January
1, 2014.
(f) Rules for Determining Asylum Eligibility.--In making a
determination under subsection (b)(1)(A) with respect to
whether an alien is a refugee within the meaning of section
101(a)(42)(A), the following shall apply:
(1) Particular social group.--The Secretary of
Homeland Security or the Attorney General shall not
determine that an alien is a member of a particular
social group unless the alien articulates on the
record, or provides a basis on the record for
determining, the definition and boundaries of the
alleged particular social group, establishes that the
particular social group exists independently from the
alleged persecution, and establishes that the alien's
claim of membership in a particular social group does
not involve--
(A) past or present criminal activity or
association (including gang membership);
(B) presence in a country with generalized
violence or a high crime rate;
(C) being the subject of a recruitment effort
by criminal, terrorist, or persecutory groups;
(D) the targeting of the applicant for
criminal activity for financial gain based on
perceptions of wealth or affluence;
(E) interpersonal disputes of which
governmental authorities in the relevant
society or region were unaware or uninvolved;
(F) private criminal acts of which
governmental authorities in the relevant
society or region were unaware or uninvolved;
(G) past or present terrorist activity or
association;
(H) past or present persecutory activity or
association; or
(I) status as an alien returning from the
United States.
(2) Political opinion.--The Secretary of Homeland
Security or the Attorney General may not determine that
an alien holds a political opinion with respect to
which the alien is subject to persecution if the
political opinion is constituted solely by generalized
disapproval of, disagreement with, or opposition to
criminal, terrorist, gang, guerilla, or other non-state
organizations and does not include expressive behavior
in furtherance of a cause against such organizations
related to efforts by the State to control such
organizations or behavior that is antithetical to or
otherwise opposes the ruling legal entity of the State
or a unit thereof.
(3) Persecution.--The Secretary of Homeland Security
or the Attorney General may not determine that an alien
has been subject to persecution or has a well-founded
fear of persecution based only on--
(A) the existence of laws or government
policies that are unenforced or infrequently
enforced, unless there is credible evidence
that such a law or policy has been or would be
applied to the applicant personally; or
(B) the conduct of rogue foreign government
officials acting outside the scope of their
official capacity.
(4) Discretionary determination.--
(A) Adverse discretionary factors.--The
Secretary of Homeland Security or the Attorney
General may only grant asylum to an alien if
the alien establishes that he or she warrants a
favorable exercise of discretion. In making
such a determination, the Attorney General or
Secretary of Homeland Security shall consider,
if applicable, an alien's use of fraudulent
documents to enter the United States, unless
the alien arrived in the United States by air,
sea, or land directly from the applicant's home
country without transiting through any other
country.
(B) Favorable exercise of discretion not
permitted.--Except as provided in subparagraph
(C), the Attorney General or Secretary of
Homeland Security shall not favorably exercise
discretion under this section for any alien
who--
(i) has accrued more than one year of
unlawful presence in the United States,
as defined in sections 212(a)(9)(B)(ii)
and (iii), prior to filing an
application for asylum;
(ii) at the time the asylum
application is filed with the
immigration court or is referred from
the Department of Homeland Security,
has--
(I) failed to timely file (or
timely file a request for an
extension of time to file) any
required Federal, State, or
local income tax returns;
(II) failed to satisfy any
outstanding Federal, State, or
local tax obligations; or
(III) income that would
result in tax liability under
section 1 of the Internal
Revenue Code of 1986 and that
was not reported to the
Internal Revenue Service;
(iii) has had two or more prior
asylum applications denied for any
reason;
(iv) has withdrawn a prior asylum
application with prejudice or been
found to have abandoned a prior asylum
application;
(v) failed to attend an interview
regarding his or her asylum application
with the Department of Homeland
Security, unless the alien shows by a
preponderance of the evidence that--
(I) exceptional circumstances
prevented the alien from
attending the interview; or
(II) the interview notice was
not mailed to the last address
provided by the alien or the
alien's representative and
neither the alien nor the
alien's representative received
notice of the interview; or
(vi) was subject to a final order of
removal, deportation, or exclusion and
did not file a motion to reopen to seek
asylum based on changed country
conditions within one year of the
change in country conditions.
(C) Exceptions.--If one or more of the
adverse discretionary factors set forth in
subparagraph (B) are present, the Attorney
General or the Secretary, may, notwithstanding
such subparagraph (B), favorably exercise
discretion under section 208--
(i) in extraordinary circumstances,
such as those involving national
security or foreign policy
considerations; or
(ii) if the alien, by clear and
convincing evidence, demonstrates that
the denial of the application for
asylum would result in exceptional and
extremely unusual hardship to the
alien.
(5) Limitation.--If the Secretary or the Attorney
General determines that an alien fails to satisfy the
requirement under paragraph (1), the alien may not be
granted asylum based on membership in a particular
social group, and may not appeal the determination of
the Secretary or Attorney General, as applicable. A
determination under this paragraph shall not serve as
the basis for any motion to reopen or reconsider an
application for asylum or withholding of removal for
any reason, including a claim of ineffective assistance
of counsel, unless the alien complies with the
procedural requirements for such a motion and
demonstrates that counsel's failure to define, or
provide a basis for defining, a formulation of a
particular social group was both not a strategic choice
and constituted egregious conduct.
(6) Stereotypes.--Evidence offered in support of an
application for asylum that promotes cultural
stereotypes about a country, its inhabitants, or an
alleged persecutor, including stereotypes based on
race, religion, nationality, or gender, shall not be
admissible in adjudicating that application, except
that evidence that an alleged persecutor holds
stereotypical views of the applicant shall be
admissible.
(7) Definitions.--In this section:
(A) The term ``membership in a particular
social group'' means membership in a group that
is--
(i) composed of members who share a
common immutable characteristic;
(ii) defined with particularity; and
(iii) socially distinct within the
society in question.
(B) The term ``political opinion'' means an
ideal or conviction in support of the
furtherance of a discrete cause related to
political control of a state or a unit thereof.
(C) The term ``persecution'' means the
infliction of a severe level of harm
constituting an exigent threat by the
government of a country or by persons or an
organization that the government was unable or
unwilling to control. Such term does not
include--
(i) generalized harm or violence that
arises out of civil, criminal, or
military strife in a country;
(ii) all treatment that the United
States regards as unfair, offensive,
unjust, unlawful, or unconstitutional;
(iii) intermittent harassment,
including brief detentions;
(iv) threats with no actual effort to
carry out the threats, except that
particularized threats of severe harm
of an immediate and menacing nature
made by an identified entity may
constitute persecution; or
(v) non-severe economic harm or
property damage.
(g) Firm Resettlement.--In determining whether an alien was
firmly resettled in another country prior to arriving in the
United States under subsection (b)(2)(A)(xiv), the following
shall apply:
(1) In general.--An alien shall be considered to have
firmly resettled in another country if, after the
events giving rise to the alien's asylum claim--
(A) the alien resided in a country through
which the alien transited prior to arriving in
or entering the United States and--
(i) received or was eligible for any
permanent legal immigration status in
that country;
(ii) resided in such a country with
any non-permanent but indefinitely
renewable legal immigration status
(including asylee, refugee, or similar
status, but excluding status of a
tourist); or
(iii) resided in such a country and
could have applied for and obtained an
immigration status described in clause
(ii);
(B) the alien physically resided voluntarily,
and without continuing to suffer persecution or
torture, in any one country for one year or
more after departing his country of nationality
or last habitual residence and prior to arrival
in or entry into the United States, except for
any time spent in Mexico by an alien who is not
a native or citizen of Mexico solely as a
direct result of being returned to Mexico
pursuant to section 235(b)(3) or of being
subject to metering; or
(C) the alien is a citizen of a country other
than the country in which the alien alleges a
fear of persecution, or was a citizen of such a
country in the case of an alien who renounces
such citizenship, and the alien was present in
that country after departing his country of
nationality or last habitual residence and
prior to arrival in or entry into the United
States;
(2) Burden of proof.--If an immigration judge
determines that an alien has firmly resettled in
another country under paragraph (1), the alien shall
bear the burden of proving the bar does not apply.
(3) Firm resettlement of parent.--An alien shall be
presumed to have been firmly resettled in another
country if the alien's parent was firmly resettled in
another country, the parent's resettlement occurred
before the alien turned 18 years of age, and the alien
resided with such parent at the time of the firm
resettlement, unless the alien establishes that he or
she could not have derived any permanent legal
immigration status or any non-permanent but
indefinitely renewable legal immigration status
(including asylum, refugee, or similar status, but
excluding status of a tourist) from the alien's parent.
* * * * * * *
Chapter 2--Qualifications for Admission of Aliens; Travel Control of
Citizens and Aliens
* * * * * * *
general classes of aliens ineligible to receive visas and ineligible
for admission; waivers of inadmissibility
Sec. 212. (a) 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;
(ii) except as provided in
subparagraph (C), 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,
(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
(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 inadmissibility.
(B) Waiver authorized.--For provision
authorizing waiver of certain clauses of
subparagraph (A), see subsection (g).
(C) Exception from immunization requirement
for adopted children 10 years of age or
younger.--Clause (ii) of subparagraph (A) shall
not apply to a child who--
(i) is 10 years of age or younger,
(ii) is described in subparagraph (F)
or (G) of section 101(b)(1); and
(iii) is seeking an immigrant visa as
an immediate relative under section
201(b),
if, prior to the admission of the child, an
adoptive parent or prospective adoptive parent
of the child, who has sponsored the child for
admission as an immediate relative, has
executed an affidavit stating that the parent
is aware of the provisions of subparagraph
(A)(ii) and will ensure that, within 30 days of
the child's admission, or at the earliest time
that is medically appropriate, the child will
receive the vaccinations identified in such
subparagraph.
(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 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 were 5
years or more is inadmissible.
(C) Controlled substance traffickers.--Any
alien who the consular officer or the Attorney
General knows or has reason to believe--
(i) is or has been an illicit
trafficker in any controlled substance
or in any listed chemical (as defined
in section 102 of the Controlled
Substances Act (21 U.S.C. 802)), or is
or has been a knowing aider, abettor,
assister, conspirator, or colluder with
others in the illicit trafficking in
any such controlled or listed substance
or chemical, or endeavored to do so; or
(ii) is the spouse, son, or daughter
of an alien inadmissible under clause
(i), has, within the previous 5 years,
obtained any financial or other benefit
from the illicit activity of that
alien, and knew or reasonably should
have known that the financial or other
benefit was the product of such illicit
activity,
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,
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, 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 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 inadmissible.
(F) Waiver authorized.--For provision
authorizing waiver of certain subparagraphs of
this paragraph, see subsection (h).
(G) Foreign government officials who have
committed particularly severe violations of
religious freedom.--Any alien who, while
serving as a foreign government official, was
responsible for or directly carried out, at any
time, particularly severe violations of
religious freedom, as defined in section 3 of
the International Religious Freedom Act of 1998
(22 U.S.C. 6402), is inadmissible.
(H) Significant traffickers in persons.--
(i) In general.--Any alien who
commits or conspires to commit human
trafficking offenses in the United
States or outside the United States, or
who the consular officer, the Secretary
of Homeland Security, the Secretary of
State, or the Attorney General knows or
has reason to believe is or has been a
knowing aider, abettor, assister,
conspirator, or colluder with such a
trafficker in severe forms of
trafficking in persons, as defined in
the section 103 of such Act, is
inadmissible.
(ii) Beneficiaries of trafficking.--
Except as provided in clause (iii), any
alien who the consular officer or the
Attorney General knows or has reason to
believe is the spouse, son, or daughter
of an alien inadmissible under clause
(i), has, within the previous 5 years,
obtained any financial or other benefit
from the illicit activity of that
alien, and knew or reasonably should
have known that the financial or other
benefit was the product of such illicit
activity, is inadmissible.
(iii) Exception for certain sons and
daughters.--Clause (ii) shall not apply
to a son or daughter who was a child at
the time he or she received the benefit
described in such clause.
(I) Money laundering.--Any alien--
(i) who a consular officer or the
Attorney General knows, or has reason
to believe, has engaged, is engaging,
or seeks to enter the United States to
engage, in an offense which is
described in section 1956 or 1957 of
title 18, United States Code (relating
to laundering of monetary instruments);
or
(ii) who a consular officer or the
Attorney General knows is, or has been,
a knowing aider, abettor, assister,
conspirator, or colluder with others in
an offense which is described in such
section;
is inadmissible.
(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 inadmissible.
(B) Terrorist activities.--
(i) In general.--Any alien who--
(I) has engaged in a
terrorist activity;
(II) a consular officer, the
Attorney General, or the
Secretary of Homeland Security
knows, or has reasonable ground
to believe, is engaged in or is
likely to engage after entry in
any terrorist activity (as
defined in clause (iv));
(III) has, under
circumstances indicating an
intention to cause death or
serious bodily harm, incited
terrorist activity;
(IV) is a representative (as
defined in clause (v)) of--
(aa) a terrorist
organization (as
defined in clause
(vi)); or
(bb) a political,
social, or other group
that endorses or
espouses terrorist
activity;
(V) is a member of a
terrorist organization
described in subclause (I) or
(II) of clause (vi);
(VI) is a member of a
terrorist organization
described in clause (vi)(III),
unless the alien can
demonstrate by clear and
convincing evidence that the
alien did not know, and should
not reasonably have known, that
the organization was a
terrorist organization;
(VII) endorses or espouses
terrorist activity or persuades
others to endorse or espouse
terrorist activity or support a
terrorist organization;
(VIII) has received military-
type training (as defined in
section 2339D(c)(1) of title
18, United States Code) from or
on behalf of any organization
that, at the time the training
was received, was a terrorist
organization (as defined in
clause (vi)); or
(IX) is the spouse or child
of an alien who is inadmissible
under this subparagraph, if the
activity causing the alien to
be found inadmissible occurred
within the last 5 years, 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.
(ii) Exception.--Subclause (IX) of
clause (i) does not apply to a spouse
or child--
(I) who did not know or
should not reasonably have
known of the activity causing
the alien to be found
inadmissible under this
section; or
(II) whom the consular
officer or Attorney General has
reasonable grounds to believe
has renounced the activity
causing the alien to be found
inadmissible under this
section.
(iii) Terrorist activity defined.--As
used in this Act, the term ``terrorist
activity'' means any activity which is
unlawful under the laws of the place
where it is committed (or which, if it
had been committed in the United
States, would be unlawful under the
laws of the United States or any State)
and which involves any of the
following:
(I) The highjacking or
sabotage of any conveyance
(including an aircraft, vessel,
or vehicle).
(II) The seizing or
detaining, and threatening to
kill, injure, or continue to
detain, another individual in
order to compel a third person
(including a governmental
organization) to do or abstain
from doing any act as an
explicit or implicit condition
for the release of the
individual seized or detained.
(III) A violent attack upon
an internationally protected
person (as defined in section
1116(b)(4) of title 18, United
States Code) or upon the
liberty of such a person.
(IV) An assassination.
(V) The use of any--
(a) biological agent,
chemical agent, or
nuclear weapon or
device, or
(b) explosive,
firearm, or other
weapon or dangerous
device (other than for
mere personal monetary
gain),
with intent to endanger,
directly or indirectly, the
safety of one or more
individuals or to cause
substantial damage to property.
(VI) A threat, attempt, or
conspiracy to do any of the
foregoing.
(iv) Engage in terrorist activity
defined.--As used in this Act, the term
``engage in terrorist activity'' means,
in an individual capacity or as a
member of an organization--
(I) to commit or to incite to
commit, under circumstances
indicating an intention to
cause death or serious bodily
injury, a terrorist activity;
(II) to prepare or plan a
terrorist activity;
(III) to gather information
on potential targets for
terrorist activity;
(IV) to solicit funds or
other things of value for--
(aa) a terrorist
activity;
(bb) a terrorist
organization described
in clause (vi)(I) or
(vi)(II); or
(cc) a terrorist
organization described
in clause (vi)(III),
unless the solicitor
can demonstrate by
clear and convincing
evidence that he did
not know, and should
not reasonably have
known, that the
organization was a
terrorist organization;
(V) to solicit any
individual--
(aa) to engage in
conduct otherwise
described in this
subsection;
(bb) for membership
in a terrorist
organization described
in clause (vi)(I) or
(vi)(II); or
(cc) for membership
in a terrorist
organization described
in clause (vi)(III)
unless the solicitor
can demonstrate by
clear and convincing
evidence that he did
not know, and should
not reasonably have
known, that the
organization was a
terrorist organization;
or
(VI) to commit an act that
the actor knows, or reasonably
should know, affords material
support, including a safe
house, transportation,
communications, funds, transfer
of funds or other material
financial benefit, false
documentation or
identification, weapons
(including chemical,
biological, or radiological
weapons), explosives, or
training--
(aa) for the
commission of a
terrorist activity;
(bb) to any
individual who the
actor knows, or
reasonably should know,
has committed or plans
to commit a terrorist
activity;
(cc) to a terrorist
organization described
in subclause (I) or
(II) of clause (vi) or
to any member of such
an organization; or
(dd) to a terrorist
organization described
in clause (vi)(III), or
to any member of such
an organization, unless
the actor can
demonstrate by clear
and convincing evidence
that the actor did not
know, and should not
reasonably have known,
that the organization
was a terrorist
organization.
(v) Representative defined.--As used
in this paragraph, the term
``representative'' includes an officer,
official, or spokesman of an
organization, and any person who
directs, counsels, commands, or induces
an organization or its members to
engage in terrorist activity.
(vi) Terrorist organization
defined.--As used in this section, the
term ``terrorist organization'' means
an organization--
(I) designated under section
219;
(II) otherwise designated,
upon publication in the Federal
Register, by the Secretary of
State in consultation with or
upon the request of the
Attorney General or the
Secretary of Homeland Security,
as a terrorist organization,
after finding that the
organization engages in the
activities described in
subclauses (I) through (VI) of
clause (iv); or
(III) that is a group of two
or more individuals, whether
organized or not, which engages
in, or has a subgroup which
engages in, the activities
described in subclauses (I)
through (VI) of clause (iv).
(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 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 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 persecution,
genocide, or the commission of any act of
torture or extrajudicial killing.--
(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 inadmissible.
(ii) Participation in genocide.--Any
alien who ordered, incited, assisted,
or otherwise participated in genocide,
as defined in section 1091(a) of title
18, United States Code, is inadmissible
(iii) Commission of acts of torture
or extrajudicial killings.--Any alien
who, outside the United States, has
committed, ordered, incited, assisted,
or otherwise participated in the
commission of--
(I) any act of torture, as
defined in section 2340 of
title 18, United States Code;
or
(II) under color of law of
any foreign nation, any
extrajudicial killing, as
defined in section 3(a) of the
Torture Victim Protection Act
of 1991 (28 U.S.C. 1350 note),
is inadmissible.
(F) Association with terrorist
organizations.--Any alien who the Secretary of
State, after consultation with the Attorney
General, or the Attorney General, after
consultation with the Secretary of State,
determines has been associated with a terrorist
organization and intends while in the United
States to engage solely, principally, or
incidentally in activities that could endanger
the welfare, safety, or security of the United
States is inadmissible.
(G) Recruitment or use of child soldiers.--
Any alien who has engaged in the recruitment or
use of child soldiers in violation of section
2442 of title 18, United States Code, is
inadmissible.
(4) Public charge.--
(A) In general.--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
inadmissible.
(B) Factors to be taken into account.--(i) In
determining whether an alien is inadmissible
under this paragraph, the consular officer or
the Attorney General shall at a minimum
consider the alien's--
(I) age;
(II) health;
(III) family status;
(IV) assets, resources, and financial
status; and
(V) education and skills.
(ii) In addition to the factors under clause
(i), the consular officer or the Attorney
General may also consider any affidavit of
support under section 213A for purposes of
exclusion under this paragraph.
(C) Family-sponsored immigrants.--Any alien
who seeks admission or adjustment of status
under a visa number issued under section
201(b)(2) or 203(a) is inadmissible under this
paragraph unless--
(i) the alien has obtained--
(I) status as a spouse or a
child of a United States
citizen pursuant to clause
(ii), (iii), or (iv) of section
204(a)(1)(A), or
(II) classification pursuant
to clause (ii) or (iii) of
section 204(a)(1)(B); or
(III) classification or
status as a VAWA self-
petitioner; or
(ii) the person petitioning for the
alien's admission (and any additional
sponsor required under section 213A(f)
or any alternative sponsor permitted
under paragraph (5)(B) of such section)
has executed an affidavit of support
described in section 213A with respect
to such alien.
(D) 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 under this
paragraph unless such relative has executed an
affidavit of support described in section 213A
with respect to such alien.
(E) Special rule for qualified alien
victims.--Subparagraphs (A), (B), and (C) shall
not apply to an alien who--
(i) is a VAWA self-petitioner;
(ii) is an applicant for, or is
granted, nonimmigrant status under
section 101(a)(15)(U); or
(iii) is a qualified alien described
in section 431(c) of the Personal
Responsibility and Work Opportunity
Reconciliation Act of 1996 (8 U.S.C.
1641(c)).
(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 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.
(iii) Professional athletes.--
(I) In general.--A
certification made under clause
(i) with respect to a
professional athlete shall
remain valid with respect to
the athlete after the athlete
changes employer, if the new
employer is a team in the same
sport as the team which
employed the athlete when the
athlete first applied for the
certification.
(II) Definition.--For
purposes of subclause (I), the
term ``professional athlete''
means an individual who is
employed as an athlete by--
(aa) a team that is a
member of an
association of 6 or
more professional
sports teams whose
total combined revenues
exceed $10,000,000 per
year, if the
association governs the
conduct of its members
and regulates the
contests and
exhibitions in which
its member teams
regularly engage; or
(bb) any minor league
team that is affiliated
with such an
association.
(iv) Long delayed adjustment
applicants.--A certification made under
clause (i) with respect to an
individual whose petition is covered by
section 204(j) shall remain valid with
respect to a new job accepted by the
individual after the individual changes
jobs or employers if the new job is in
the same or a similar occupational
classification as the job for which the
certification was issued.
(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
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) Uncertified foreign health-care
workers.--Subject to subsection (r), any alien
who seeks to enter the United States for the
purpose of performing labor as a health-care
worker, other than a physician, is inadmissible
unless the alien presents to the consular
officer, or, in the case of an adjustment of
status, the Attorney General, a certificate
from the Commission on Graduates of Foreign
Nursing Schools, or a certificate from an
equivalent independent credentialing
organization approved by the Attorney General
in consultation with the Secretary of Health
and Human Services, verifying that--
(i) the alien's education, training,
license, and experience--
(I) meet all applicable
statutory and regulatory
requirements for entry into the
United States under the
classification specified in the
application;
(II) are comparable with that
required for an American
health-care worker of the same
type; and
(III) are authentic and, in
the case of a license,
unencumbered;
(ii) the alien has the level of
competence in oral and written English
considered by the Secretary of Health
and Human Services, in consultation
with the Secretary of Education, to be
appropriate for health care work of the
kind in which the alien will be
engaged, as shown by an appropriate
score on one or more nationally
recognized, commercially available,
standardized assessments of the
applicant's ability to speak and write;
and
(iii) if a majority of States
licensing the profession in which the
alien intends to work recognize a test
predicting the success on the
profession's licensing or certification
examination, the alien has passed such
a test or has passed such an
examination.
For purposes of clause (ii), determination of
the standardized tests required and of the
minimum scores that are appropriate are within
the sole discretion of the Secretary of Health
and Human Services and are not subject to
further administrative or judicial review.
(D) Application of grounds.--The grounds for
inadmissibility of aliens under subparagraphs
(A) and (B) shall apply to immigrants seeking
admission or adjustment of status under
paragraph (2) or (3) of section 203(b).
(6) Illegal entrants and immigration violators.--
(A) Aliens present without admission or
parole.--
(i) 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.
(ii) Exception for certain battered
women and children.--Clause (i) shall
not apply to an alien who demonstrates
that--
(I) the alien is a VAWA self-
petitioner;
(II)(a) the alien has been
battered or subjected 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
(b) the alien's child has been
battered or subjected to
extreme cruelty by a spouse or
parent of the alien (without
the active participation of the
alien in the battery or
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.
(B) Failure to attend removal proceeding.--
Any alien who without reasonable cause fails or
refuses to attend or remain in attendance at a
proceeding to determine the alien's
inadmissibility or deportability and who seeks
admission to the United States within 5 years
of such alien's subsequent departure or removal
is inadmissible.
(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 admission
into the United States or other benefit
provided under this Act is
inadmissible.
(ii) Falsely claiming citizenship.--
(I) In general.--Any alien
who falsely represents, or has
falsely represented, himself or
herself to be a citizen of the
United States for any purpose
or benefit under this Act
(including section 274A) or any
other Federal or State law is
inadmissible.
(II) Exception.--In the case
of an alien making a
representation described in
subclause (I), if each natural
parent of the alien (or, in the
case of an adopted alien, each
adoptive parent of the alien)
is or was a citizen (whether by
birth or naturalization), the
alien permanently resided in
the United States prior to
attaining the age of 16, and
the alien reasonably believed
at the time of making such
representation that he or she
was a citizen, the alien shall
not be considered to be
inadmissible under any
provision of this subsection
based on such representation.
(iii) Waiver authorized.--For
provision authorizing waiver of clause
(i), see subsection (i).
(D) Stowaways.--Any alien who is a stowaway
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
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 or under section 203(a)(2)
(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.--
(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).
(G) Student visa abusers.--An alien who
obtains the status of a nonimmigrant under
section 101(a)(15)(F)(i) and who violates a
term or condition of such status under section
214(l) is inadmissible until the alien has been
outside the United States for a continuous
period of 5 years after the date of the
violation.
(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 inadmissible.
(ii) 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 inadmissible.
(ii) General waiver authorized.--For
provision authorizing waiver of clause
(i), see subsection (d)(4).
(iii) Guam and northern mariana
islands visa waiver.--For provision
authorizing waiver of clause (i) in the
case of visitors to Guam or the
Commonwealth of the Northern Mariana
Islands, see subsection (l).
(iv) Visa waiver program.--For
authority to waive the requirement of
clause (i) under a program, see section
217.
(8) Ineligible for citizenship.--
(A) In general.--Any immigrant who is
permanently ineligible to citizenship 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 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) Aliens previously removed.--
(A) Certain 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 (or
within 20 years in the case of a second
or subsequent removal or at any time in
the case of an alien convicted of an
aggravated felony) is inadmissible.
(ii) Other aliens.--Any alien not
described in clause (i) who--
(I) has been ordered removed
under section 240 or any other
provision of law, or
(II) departed the United
States while an order of
removal was outstanding,
and who seeks admission within 10 years
of the date of such alien's departure
or removal (or within 20 years of such
date in the case of a second or
subsequent 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 date of 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 unlawfully present.--
(i) In general.--Any alien (other
than an alien lawfully admitted for
permanent residence) who--
(I) was unlawfully present in
the United States for a period
of more than 180 days but less
than 1 year, voluntarily
departed the United States
(whether or not pursuant to
section 244(e)) prior to the
commencement of proceedings
under section 235(b)(1) or
section 240, and again seeks
admission within 3 years of the
date of such alien's departure
or removal, or
(II) has been unlawfully
present in the United States
for one year or more, and who
again seeks admission within 10
years of the date of such
alien's departure or removal
from the United States,
is inadmissible.
(ii) Construction of unlawful
presence.--For purposes of this
paragraph, an alien is deemed to be
unlawfully present in the United States
if the alien is present in the United
States after the expiration of the
period of stay authorized by the
Attorney General or is present in the
United States without being admitted or
paroled.
(iii) Exceptions.--
(I) Minors.--No period of
time in which an alien is under
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) unless
the alien during such period
was employed without
authorization in the United
States.
(III) Family unity.--No
period of time in which the
alien is a beneficiary of
family unity protection
pursuant to section 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).
(IV) Battered women and
children.--Clause (i) shall not
apply to an alien who would be
described in paragraph
(6)(A)(ii) if ``violation of
the terms of the alien's
nonimmigrant visa'' were
substituted for ``unlawful
entry into the United States''
in subclause (III) of that
paragraph.
(V) Victims of a severe form of trafficking
in persons.--Clause (i) shall not apply to an
alien who demonstrates that the severe form of
trafficking (as that term is defined in section
103 of the Trafficking Victims Protection Act
of 2000 (22 U.S.C. 7102)) was at least one
central reason for the alien's unlawful
presence in the United States.
(iv) Tolling for good cause.--In the
case of an alien who--
(I) has been lawfully
admitted or paroled into the
United States,
(II) has filed a nonfrivolous
application for a change or
extension of status before the
date of expiration of the
period of stay authorized by
the Attorney General, and
(III) has not been employed
without authorization in the
United States before or during
the pendency of such
application,
the calculation of the period of time
specified in clause (i)(I) shall be
tolled during the pendency of such
application, but not to exceed 120
days.
(v) Waiver.--The Attorney General has
sole discretion to waive clause (i) in
the case of an immigrant who is the
spouse or son or daughter of a United
States citizen or 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 such immigrant alien
would result in extreme hardship to the
citizen or lawfully resident spouse or
parent of such alien. No court shall
have jurisdiction to review a decision
or action by the Attorney General
regarding a waiver under this clause.
(C) Aliens unlawfully present after previous
immigration violations.--
(i) In general.--Any alien who--
(I) has been unlawfully
present in the United States
for an aggregate period of more
than 1 year, or
(II) has been ordered removed
under section 235(b)(1),
section 240, or any other
provision of law,
and who enters or attempts to reenter
the United States without being
admitted is inadmissible.
(ii) Exception.--Clause (i) shall not
apply to an alien seeking admission
more than 10 years after the date of
the alien's last departure from the
United States if, prior to the alien's
reembarkation at a place outside the
United States or attempt to be
readmitted from a foreign contiguous
territory, the Secretary of Homeland
Security has consented to the alien's
reapplying for admission.
(iii) Waiver.--The Secretary of
Homeland Security may waive the
application of clause (i) in the case
of an alien who is a VAWA self-
petitioner if there is a connection
between--
(I) the alien's battering or
subjection to extreme cruelty;
and
(II) the alien's removal,
departure from the United
States, reentry or reentries
into the United States; or
attempted reentry into the
United States.
(10) Miscellaneous.--
(A) Practicing polygamists.--Any immigrant
who is coming to the United States to practice
polygamy is inadmissible.
(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
inadmissible until the child is
surrendered to the person granted
custody by that order.
(ii) Aliens supporting abductors and
relatives of abductors.--Any alien
who--
(I) is known by the Secretary
of State to have intentionally
assisted an alien in the
conduct described in clause
(i),
(II) is known by the
Secretary of State to be
intentionally providing
material support or safe haven
to an alien described in clause
(i), or
(III) is a spouse (other than
the spouse who is the parent of
the abducted child), child
(other than the abducted
child), parent, sibling, or
agent of an alien described in
clause (i), if such person has
been designated by the
Secretary of State at the
Secretary's sole and
unreviewable discretion, is
inadmissible until the child
described in clause (i) is
surrendered to the person
granted custody by the order
described in that clause, and
such person and child are
permitted to return to the
United States or such person's
place of residence.
(iii) Exceptions.--Clauses (i) and
(ii) shall not apply--
(I) to a government official
of the United States who is
acting within the scope of his
or her official duties;
(II) to a government official
of any foreign government if
the official has been
designated by the Secretary of
State at the Secretary's sole
and unreviewable discretion; or
(III) so long as the child is
located in a foreign state that
is a party to the Convention on
the Civil Aspects of
International Child Abduction,
done at The Hague on October
25, 1980.
(D) Unlawful voters.--
(i) In general.--Any alien who has
voted in violation of any Federal,
State, or local constitutional
provision, statute, ordinance, or
regulation is inadmissible.
(ii) Exception.--In the case of an
alien who voted in a Federal, State, or
local election (including an
initiative, recall, or referendum) in
violation of a lawful restriction of
voting to citizens, if each natural
parent of the alien (or, in the case of
an adopted alien, each adoptive parent
of the alien) is or was a citizen
(whether by birth or naturalization),
the alien permanently resided in the
United States prior to attaining the
age of 16, and the alien reasonably
believed at the time of such violation
that he or she was a citizen, the alien
shall not be considered to be
inadmissible under any provision of
this subsection based on such
violation.
(E) Former citizens who renounced citizenship
to avoid taxation.--Any alien who is a former
citizen of the United States who officially
renounces 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 inadmissible.
(b) Notices of Denials.--
(1) Subject to paragraphs (2) and (3), 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 inadmissible under
subsection (a), the officer shall provide the alien
with a timely written notice that--
(A) states the determination, and
(B) lists the specific provision or
provisions of law under which the alien is
excludable or ineligible for entry or
adjustment of status.
(2) The Secretary of State may waive the requirements
of paragraph (1) with respect to a particular alien or
any class or classes of inadmissible aliens.
(3) Paragraph (1) does not apply to any alien
inadmissible under paragraph (2) or (3) of subsection
(a).
[(c) Repealed by sec. 304(b) of Public Law 104-208 (110 Stat.
3009-597).]
(d)(1) The Attorney General shall determine whether a ground
for inadmissible 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) (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
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)(A) Except as provided in this subsection, an alien (i)
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 clauses (i) and (ii) of
paragraph (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 (ii)
who is inadmissible under subsection (a) (other than paragraphs
(3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), and clauses (i)
and (ii) of paragraph (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
inadmissible aliens applying for temporary admission under this
paragraph.
(B)(i) The Secretary of State, after consultation with the
Attorney General and the Secretary of Homeland Security, or the
Secretary of Homeland Security, after consultation with the
Secretary of State and the Attorney General, may determine in
such Secretary's sole unreviewable discretion that subsection
(a)(3)(B) shall not apply with respect to an alien within the
scope of that subsection or that subsection (a)(3)(B)(vi)(III)
shall not apply to a group within the scope of that subsection,
except that no such waiver may be extended to an alien who is
within the scope of subsection (a)(3)(B)(i)(II), no such waiver
may be extended to an alien who is a member or representative
of, has voluntarily and knowingly engaged in or endorsed or
espoused or persuaded others to endorse or espouse or support
terrorist activity on behalf of, or has voluntarily and
knowingly received military-type training from a terrorist
organization that is described in subclause (I) or (II) of
subsection (a)(3)(B)(vi), and no such waiver may be extended to
a group that has engaged terrorist activity against the United
States or another democratic country or that has purposefully
engaged in a pattern or practice of terrorist activity that is
directed at civilians. Such a determination shall neither
prejudice the ability of the United States Government to
commence criminal or civil proceedings involving a beneficiary
of such a determination or any other person, nor create any
substantive or procedural right or benefit for a beneficiary of
such a determination or any other person. Notwithstanding any
other provision of law (statutory or nonstatutory), including
section 2241 of title 28, or any other habeas corpus provision,
and sections 1361 and 1651 of such title, no court shall have
jurisdiction to review such a determination or revocation
except in a proceeding for review of a final order of removal
pursuant to section 1252 of this title, and review shall be
limited to the extent provided in section 1252(a)(2)(D). The
Secretary of State may not exercise the discretion provided in
this clause with respect to an alien at any time during which
the alien is the subject of pending removal proceedings under
section 1229a of this title.
(ii) Not later than 90 days after the end of each fiscal
year, the Secretary of State and the Secretary of Homeland
Security shall each provide to the Committees on the Judiciary
of the House of Representatives and of the Senate, the
Committee on International Relations of the House of
Representatives, the Committee on Foreign Relations of the
Senate, and the Committee on Homeland Security of the House of
Representatives a report on the aliens to whom such Secretary
has applied clause (i). Within one week of applying clause (i)
to a group, the Secretary of State or the Secretary of Homeland
Security shall provide a report to such Committees.
(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 thereof having a
common nationality with such nationals, 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 only on a case-by-case basis for urgent
humanitarian reasons or significant public benefit 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) Except as provided in subparagraphs (B) and (C) and
section 214(f), the Secretary of Homeland Security, in the
discretion of the Secretary, may temporarily parole into the
United States any alien applying for admission to the United
States who is not present in the United States, under such
conditions as the Secretary may prescribe, on a case-by-case
basis, and not according to eligibility criteria describing an
entire class of potential parole recipients, for urgent
humanitarian reasons or significant public benefit. Parole
granted under this subparagraph may not be regarded as an
admission of the alien. When the purposes of such parole have
been served in the opinion of the Secretary, the alien shall
immediately return or be returned to the custody from which the
alien was paroled. After such return, the case of the alien
shall be dealt with in the same manner as the case of any other
applicant for admission to the United States.
(B) The Secretary of Homeland Security may grant parole to
any alien who--
(i) is present in the United States without lawful
immigration status;
(ii) is the beneficiary of an approved petition under
section 203(a);
(iii) is not otherwise inadmissible or removable; and
(iv) is the spouse or child of a member of the Armed
Forces serving on active duty.
(C) The Secretary of Homeland Security may grant parole to
any alien--
(i) who is a national of the Republic of Cuba and is
living in the Republic of Cuba;
(ii) who is the beneficiary of an approved petition
under section 203(a);
(iii) for whom an immigrant visa is not immediately
available;
(iv) who meets all eligibility requirements for an
immigrant visa;
(v) who is not otherwise inadmissible; and
(vi) who is receiving a grant of parole in
furtherance of the commitment of the United States to
the minimum level of annual legal migration of Cuban
nationals to the United States specified in the U.S.-
Cuba Joint Communique on Migration, done at New York
September 9, 1994, and reaffirmed in the Cuba-United
States: Joint Statement on Normalization of Migration,
Building on the Agreement of September 9, 1994, done at
New York May 2, 1995.
(D) The Secretary of Homeland Security may grant parole to an
alien who is returned to a contiguous country under section
235(b)(3) to allow the alien to attend the alien's immigration
hearing. The grant of parole shall not exceed the time required
for the alien to be escorted to, and attend, the alien's
immigration hearing scheduled on the same calendar day as the
grant, and to immediately thereafter be escorted back to the
contiguous country. A grant of parole under this subparagraph
shall not be considered for purposes of determining whether the
alien is inadmissible under this Act.
(E) For purposes of determining an alien's eligibility for
parole under subparagraph (A), an urgent humanitarian reason
shall be limited to circumstances in which the alien
establishes that--
(i)(I) the alien has a medical emergency; and
(II)(aa) the alien cannot obtain necessary treatment
in the foreign state in which the alien is residing; or
(bb) the medical emergency is life-threatening and
there is insufficient time for the alien to be admitted
to the United States through the normal visa process;
(ii) the alien is the parent or legal guardian of an
alien described in clause (i) and the alien described
in clause (i) is a minor;
(iii) the alien is needed in the United States in
order to donate an organ or other tissue for transplant
and there is insufficient time for the alien to be
admitted to the United States through the normal visa
process;
(iv) 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 to the United States through the normal visa
process;
(v) the alien is seeking to attend the funeral of a
close family member and the alien could not arrive in
the United States in time to attend such funeral if the
alien were to be admitted to the United States through
the normal visa process;
(vi) the alien is an adopted child with an urgent
medical condition who is in the legal custody of the
petitioner for a final adoption-related visa and whose
medical treatment is required before the expected award
of a final adoption-related visa; or
(vii) the alien is a lawful applicant for adjustment
of status under section 245 and is returning to the
United States after temporary travel abroad.
(F) For purposes of determining an alien's eligibility for
parole under subparagraph (A), a significant public benefit may
be determined to result from the parole of an alien only if--
(i) the alien has assisted (or will assist, whether
knowingly or not) the United States Government in a law
enforcement matter;
(ii) the alien's presence is required by the
Government in furtherance of such law enforcement
matter; and
(iii) the alien is inadmissible, does not satisfy the
eligibility requirements for admission as a
nonimmigrant, or there is insufficient time for the
alien to be admitted to the United States through the
normal visa process.
(G) For purposes of determining an alien's eligibility for
parole under subparagraph (A), the term ``case-by-case basis''
means that the facts in each individual case are considered and
parole is not granted based on membership in a defined class of
aliens to be granted parole. The fact that aliens are
considered for or granted parole one-by-one and not as a group
is not sufficient to establish that the parole decision is made
on a ``case-by-case basis''.
(H) The Secretary of Homeland Security may not use the parole
authority under this paragraph to parole an alien into the
United States for any reason or purpose other than those
described in subparagraphs (B), (C), (D), (E), and (F).
(I) An alien granted parole may not accept employment, except
that an alien granted parole pursuant to subparagraph (B) or
(C) is authorized to accept employment for the duration of the
parole, as evidenced by an employment authorization document
issued by the Secretary of Homeland Security.
(J) Parole granted after a departure from the United States
shall not be regarded as an admission of the alien. An alien
granted parole, whether as an initial grant of parole or parole
upon reentry into the United States, is not eligible to adjust
status to lawful permanent residence or for any other
immigration benefit if the immigration status the alien had at
the time of departure did not authorize the alien to adjust
status or to be eligible for such benefit.
(K)(i) Except as provided in clauses (ii) and (iii), parole
shall be granted to an alien under this paragraph for the
shorter of--
(I) a period of sufficient length to accomplish the
activity described in subparagraph (D), (E), or (F) for
which the alien was granted parole; or
(II) 1 year.
(ii) Grants of parole pursuant to subparagraph (A) may be
extended once, in the discretion of the Secretary, for an
additional period that is the shorter of--
(I) the period that is necessary to accomplish the
activity described in subparagraph (E) or (F) for which
the alien was granted parole; or
(II) 1 year.
(iii) Aliens who have a pending application to adjust status
to permanent residence under section 245 may request extensions
of parole under this paragraph, in 1-year increments, until the
application for adjustment has been adjudicated. Such parole
shall terminate immediately upon the denial of such adjustment
application.
(L) Not later than 90 days after the last day of each fiscal
year, the Secretary of Homeland Security shall submit to the
Committee on the Judiciary of the Senate and the Committee on
the Judiciary of the House of Representatives and make
available to the public, a report--
(i) identifying the total number of aliens paroled
into the United States under this paragraph during the
previous fiscal year; and
(ii) containing information and data regarding all
aliens paroled during such fiscal year, including--
(I) the duration of parole;
(II) the type of parole; and
(III) the current status of the aliens so
paroled.
[(6) repealed; see footnote at the beginning of subsection
(d).]
(7) The provisions of subsection (a) (other than paragraph
(7)) shall be applicable to any alien who shall leave Guam, the
Commonwealth of the Northern Mariana Islands, 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 denied admission to the United States, shall
be immediately removed in the manner provided by section 241(c)
of this Act.
(8) Upon a basis of reciprocity accredited officials of
foreign governments, their immediate families, attendants,
servants, and personal employees may be admitted in immediate
and continuous transit through the United States without regard
to the provisions of this section except paragraphs (3)(A),
(3)(B), (3)(C), and (7)(B) of subsection (a) of this section.
[(9) and (10) repealed; see footnote at the beginning of
subsection (d).]
(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 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 or immigrant under section 203(a) (other than
paragraph (4) thereof), if the alien has encouraged, induced,
assisted, abetted, or aided only an individual who at the time
of such action was 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 or to assure family
unity, 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 or
removal 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 no previous civil money penalty was imposed against the
alien under section 274C and the offense was committed solely
to assist, aid, or support the alien's spouse or child (and not
another individual). No court shall have jurisdiction to review
a decision of the Attorney General to grant or deny a waiver
under this paragraph.
(13)(A) The Secretary of Homeland Security shall determine
whether a ground for inadmissibility exists with respect to a
nonimmigrant described in section 101(a)(15)(T), except that
the ground for inadmissibility described in subsection (a)(4)
shall not apply with respect to such a nonimmigrant.
(B) In addition to any other waiver that may be available
under this section, in the case of a nonimmigrant described in
section 101(a)(15)(T), if the Secretary of Homeland Security
considers it to be in the national interest to do so, the
Secretary of Homeland Security, in the Attorney General's
discretion, may waive the application of--
(i) subsection (a)(1); and
(ii) any other provision of subsection (a) (excluding
paragraphs (3), (4), (10)(C), and (10(E)) if the
activities rendering the alien inadmissible under the
provision were caused by, or were incident to, the
victimization described in section 101(a)(15)(T)(i)(I).
(14) The Secretary of Homeland Security shall determine
whether a ground of inadmissibility exists with respect to a
nonimmigrant described in section 101(a)(15)(U). The Secretary
of Homeland Security, in the Attorney General's discretion, may
waive the application of subsection (a) (other than paragraph
(3)(E)) in the case of a nonimmigrant described in section
101(a)(15)(U), if the Secretary of Homeland Security considers
it to be in the public or national interest to do so.
(e) No person admitted under section 101(a)(15)(J) or
acquiring such status after admission (i) whose participation
in the program for which he came to the United States was
financed in whole or in part, directly or indirectly, by an
agency of the Government of the United States or by the
government of the country of his nationality or his last
residence, (ii) who at the time of admission or acquisition of
status under section 101(a)(15)(J) was a national or resident
of a country which the Director of the United States
Information Agency pursuant to regulations prescribed by him,
had designated as clearly requiring the services of persons
engaged in the field of specialized knowledge or skill in which
the alien was engaged, or (iii) who came to the United States
or acquired such status in order to receive graduate medical
education or training, shall be eligible to apply for an
immigrant visa, or for permanent residence, or for a
nonimmigrant visa under section 101(a)(15)(H) or section
101(a)(15)(L) until it is established that such person has
resided and been physically present in the country of his
nationality or his last residence for an aggregate of a least
two years following departure from the United States: Provided,
That upon the favorable recommendation of the Director,
pursuant to the request of an interested United States
Government agency (or, in the case of an alien described in
clause (iii), pursuant to the request of a State Department of
Public Health, or its equivalent), or of the Commissioner of
Immigration and Naturalization after he has determined that
departure from the United States would impose exceptional
hardship upon the alien's spouse or child (if such spouse or
child is a citizen of the United States or a lawfully resident
alien), or that the alien cannot return to the country of his
nationality or last residence because he would be subject to
persecution on account of race, religion, or political opinion,
the Attorney General may waive the requirement of such two-year
foreign residence abroad in the case of any alien whose
admission to the United States is found by the Attorney General
to be in the public interest except that in the case of a
waiver requested by a State Department of Public Health, or its
equivalent, or in the case of a waiver requested by an
interested United States Government agency on behalf of an
alien described in clause (iii), the waiver shall be subject to
the requirements of section 214(l): And provided further, That,
except in the case of an alien described in clause (iii), the
Attorney General may, upon the favorable recommendation of the
Director, waive such two-year foreign residence requirement in
any case in which the foreign country of the alien's
nationality or last residence has furnished the Director a
statement in writing that it has no objection to such waiver in
the case of such alien.
(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,
(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
(C) is a VAWA self-petitioner,
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,
(B) for whom a civil surgeon, medical
officer, or panel physician (as those terms are
defined by section 34.2 of title 42 of the Code
of Federal Regulations) certifies, according to
such regulations as the Secretary of Health and
Human Services may prescribe, that such
vaccination would not be medically appropriate,
or
(C) under such circumstances as the Attorney
General provides by regulation, with respect to
whom the requirement of such a vaccination
would be contrary to the alien's religious
beliefs or moral convictions; 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 inadmissible only under
subparagraph (D)(i) or (D)(ii) of such
subsection or the activities for which the
alien is inadmissible occurred more than 15
years before the date of the alien's
application for a visa, 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 denial of
admission would result in extreme hardship to the
United States citizen or lawfully resident spouse,
parent, son, or daughter of such alien; or
(C) the alien is a VAWA self-petitioner; and
(2) the Attorney General, in his discretion, and
pursuant to such terms, conditions and procedures as he
may by regulations prescribe, has consented to the
alien's applying or reapplying for a visa, for
admission to the United States, or adjustment of
status.
No waiver shall be provided under this subsection in the case
of an alien who has been convicted of (or who has admitted
committing acts that constitute) murder or criminal acts
involving torture, or an attempt or conspiracy to commit murder
or a criminal act involving torture. No waiver shall be granted
under this subsection in the case of an alien who has
previously been admitted to the United States as an alien
lawfully admitted for permanent residence if either since the
date of such admission the alien has been convicted of an
aggravated felony or the alien has not lawfully resided
continuously in the United States for a period of not less than
7 years immediately preceding the date of initiation of
proceedings to remove the alien from the United States. No
court shall have jurisdiction to review a decision of the
Attorney General to grant or deny a waiver under this
subsection.
(i)(1) The Attorney General may, in the discretion of the
Attorney General, waive the application of clause (i) of
subsection (a)(6)(C) in the case of an immigrant who is the
spouse, son, or daughter of a United States citizen or 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 citizen or
lawfully resident spouse or parent of such an alien or, in the
case of a VAWA self-petitioner, the alien demonstrates extreme
hardship to the alien or the alien's United States citizen,
lawful permanent resident, or qualified alien parent or child.
(2) No court shall have jurisdiction to review a decision or
action of the Attorney General regarding a waiver under
paragraph (1).
(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) A school of medicine or of one of the other
health professions, which is accredited by a body or
bodies approved for the purpose by the Secretary of
Education, has agreed in writing to provide the
graduate medical education or training under the
program for which the alien is coming to the United
States or to assume responsibility for arranging for
the provision thereof by an appropriate public or
nonprofit private institution or agency, except that,
in the case of such an agreement by a school of
medicine, any one or more of its affiliated hospitals
which are to participate in the provision of the
graduate medical education or training must join in the
agreement.
(B) Before making such agreement, the accredited
school has been satisfied that the alien (i) is a
graduate of a school of medicine which is 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); or (ii)(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), (II) has competency in oral and
written English, (III) will be able to adapt to the
educational and cultural environment in which he will
be receiving his education or training, and (IV) has
adequate prior education and training to participate
satisfactorily in the program for which he is coming to
the United States. For the purposes of this
subparagraph, 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
examination 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) The alien has made a commitment to return to the
country of his nationality or last residence upon
completion of the education or training for which he is
coming to the United States, and the government of the
country of his nationality or last residence has
provided a written assurance, satisfactory to the
Secretary of Health and Human Services, that there is a
need in that country for persons with the skills the
alien will acquire in such education or training.
(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
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 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).
(E) The alien furnishes the Attorney General each
year with an affidavit (in such form as the Attorney
General shall prescribe) that attests that the alien
(i) is in good standing in the program of graduate
medical education or training in which the alien is
participating, and (ii) will return to the country of
his nationality or last residence upon completion of
the education or training for which he came to the
United States.
(2) An alien who is a graduate of a medical school and who is
coming to the United States to perform services as a member of
the medical profession may not be admitted as a nonimmigrant
under section 101(a)(15)(H)(i)(b) unless--
(A) the alien is coming pursuant to an invitation
from a public or nonprofit private educational or
research institution or agency in the United States to
teach or conduct research, or both, at or for such
institution or agency, or
(B)(i) the alien has passed the Federation licensing
examination (administered by the Federation of State
Medical Boards of the United States) or an equivalent
examination as determined by the Secretary of Health
and Human Services, and
(ii)(I) has competency in oral and written English or
(II) is a graduate of a school of medicine which is
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).
(3) The Director of the United States Information Agency
annually shall transmit to the Congress a report on aliens who
have submitted affidavits described in paragraph (1)(E), and
shall include in such report the name and address of each such
alien, the medical education or training program in which such
alien is participating, and the status of such alien in that
program.
(k) Any alien, 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 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) Guam and Northern Mariana Islands Visa Waiver Program.--
(1) In general.--The requirement of subsection
(a)(7)(B)(i) may be waived by the Secretary of Homeland
Security, in the case of an alien applying for
admission as a nonimmigrant visitor for business or
pleasure and solely for entry into and stay in Guam or
the Commonwealth of the Northern Mariana Islands for a
period not to exceed 45 days, if the Secretary of
Homeland Security, after consultation with the
Secretary of the Interior, the Secretary of State, the
Governor of Guam and the Governor of the Commonwealth
of the Northern Mariana Islands, determines that--
(A) an adequate arrival and departure control
system has been developed in Guam and the
Commonwealth of the Northern Mariana Islands;
and
(B) such a waiver does not represent a threat
to the welfare, safety, or security of the
United States or its territories and
commonwealths.
(2) Alien waiver of rights.--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 an
immigration officer's determination as to the
admissibility of the alien at the port of entry
into Guam or the Commonwealth of the Northern
Mariana Islands; or
(B) to contest, other than on the basis of an
application for withholding of removal under
section 241(b)(3) of this Act or under the
Convention Against Torture, or an application
for asylum if permitted under section 208, any
action for removal of the alien.
(3) Regulations.--All necessary regulations to
implement this subsection shall be promulgated by the
Secretary of Homeland Security, in consultation with
the Secretary of the Interior and the Secretary of
State, on or before the 180th day after the date of
enactment of the Consolidated Natural Resources Act of
2008. The promulgation of such regulations shall be
considered a foreign affairs function for purposes of
section 553(a) of title 5, United States Code. At a
minimum, such regulations should include, but not
necessarily be limited to--
(A) a listing of all countries whose
nationals may obtain the waiver also provided
by this subsection, except that such
regulations shall provide for a listing of any
country from which the Commonwealth has
received a significant economic benefit from
the number of visitors for pleasure within the
one-year period preceding the date of enactment
of the Consolidated Natural Resources Act of
2008, unless the Secretary of Homeland Security
determines that such country's inclusion on
such list would represent a threat to the
welfare, safety, or security of the United
States or its territories; and
(B) any bonding requirements for nationals of
some or all of those countries who may present
an increased risk of overstays or other
potential problems, if different from such
requirements otherwise provided by law for
nonimmigrant visitors.
(4) Factors.--In determining whether to grant or
continue providing the waiver under this subsection to
nationals of any country, the Secretary of Homeland
Security, in consultation with the Secretary of the
Interior and the Secretary of State, shall consider all
factors that the Secretary deems relevant, including
electronic travel authorizations, procedures for
reporting lost and stolen passports, repatriation of
aliens, rates of refusal for nonimmigrant visitor
visas, overstays, exit systems, and information
exchange.
(5) Suspension.--The Secretary of Homeland Security
shall monitor the admission of nonimmigrant visitors to
Guam and the Commonwealth of the Northern Mariana
Islands under this subsection. If the Secretary
determines that such admissions have resulted in an
unacceptable number of visitors from a country
remaining unlawfully in Guam or the Commonwealth of the
Northern Mariana Islands, unlawfully obtaining entry to
other parts of the United States, or seeking
withholding of removal or asylum, or that visitors from
a country pose a risk to law enforcement or security
interests of Guam or the Commonwealth of the Northern
Mariana Islands or of the United States (including the
interest in the enforcement of the immigration laws of
the United States), the Secretary shall suspend the
admission of nationals of such country under this
subsection. The Secretary of Homeland Security may in
the Secretary's discretion suspend the Guam and
Northern Mariana Islands visa waiver program at any
time, on a country-by-country basis, for other good
cause.
(6) Addition of countries.--The Governor of Guam and
the Governor of the Commonwealth of the Northern
Mariana Islands may request the Secretary of the
Interior and the Secretary of Homeland Security to add
a particular country to the list of countries whose
nationals may obtain the waiver provided by this
subsection, and the Secretary of Homeland Security may
grant such request after consultation with the
Secretary of the Interior and the Secretary of State,
and may promulgate regulations with respect to the
inclusion of that country and any special requirements
the Secretary of Homeland Security, in the Secretary's
sole discretion, may impose prior to allowing nationals
of that country to obtain the waiver provided by this
subsection.
(m)(1) The qualifications referred to in section
101(a)(15)(H)(i)(c), with respect to an alien who is coming to
the United States to perform nursing services for a facility,
are that the alien--
(A) has obtained a full and unrestricted license to
practice professional nursing in the country where the
alien obtained nursing education or has received
nursing education in the United States;
(B) has passed an appropriate examination (recognized
in regulations promulgated in consultation with the
Secretary of Health and Human Services) or has a full
and unrestricted license under State law to practice
professional nursing in the State of intended
employment; and
(C) is fully qualified and eligible under the laws
(including such temporary or interim licensing
requirements which authorize the nurse to be employed)
governing the place of intended employment to engage in
the practice of professional nursing as a registered
nurse immediately upon admission to the United States
and is authorized under such laws to be employed by the
facility.
(2)(A) The attestation referred to in section
101(a)(15)(H)(i)(c), with respect to a facility for which an
alien will perform services, is an attestation as to the
following:
(i) The facility meets all the requirements of
paragraph (6).
(ii) The employment of the alien will not adversely
affect the wages and working conditions of registered
nurses similarly employed.
(iii) The alien employed by the facility will be paid
the wage rate for registered nurses similarly employed
by the facility.
(iv) The facility has taken and is taking timely and
significant steps designed to recruit and retain
sufficient registered nurses who are United States
citizens or immigrants who are authorized to perform
nursing services, in order to remove as quickly as
reasonably possible the dependence of the facility on
nonimmigrant registered nurses.
(v) There is not a strike or lockout in the course of
a labor dispute, the facility did not lay off and will
not lay off a registered nurse employed by the facility
within the period beginning 90 days before and ending
90 days after the date of filing of any visa petition,
and the employment of such an alien is not intended or
designed to influence an election for a bargaining
representative for registered nurses of the facility.
(vi) At the time of the filing of the petition for
registered nurses under section 101(a)(15)(H)(i)(c),
notice of the filing has been provided by the facility
to the bargaining representative of the registered
nurses at the facility or, where there is no such
bargaining representative, notice of the filing has
been provided to the registered nurses employed at the
facility through posting in conspicuous locations.
(vii) The facility will not, at any time, employ a
number of aliens issued visas or otherwise provided
nonimmigrant status under section 101(a)(15)(H)(i)(c)
that exceeds 33 percent of the total number of
registered nurses employed by the facility.
(viii) The facility will not, with respect to any
alien issued a visa or otherwise provided nonimmigrant
status under section 101(a)(15)(H)(i)(c)--
(I) authorize the alien to perform nursing
services at any worksite other than a worksite
controlled by the facility; or
(II) transfer the place of employment of the
alien from one worksite to another.
Nothing in clause (iv) shall be construed as requiring
a facility to have taken significant steps described in
such clause before the date of the enactment of the
Nursing Relief for Disadvantaged Areas Act of 1999. A
copy of the attestation shall be provided, within 30
days of the date of filing, to registered nurses
employed at the facility on the date of filing.
(B) For purposes of subparagraph (A)(iv), each of the
following shall be considered a significant step reasonably
designed to recruit and retain registered nurses:
(i) Operating a training program for registered
nurses at the facility or financing (or providing
participation in) a training program for registered
nurses elsewhere.
(ii) Providing career development programs and other
methods of facilitating health care workers to become
registered nurses.
(iii) Paying registered nurses wages at a rate higher
than currently being paid to registered nurses
similarly employed in the geographic area.
(iv) Providing reasonable opportunities for
meaningful salary advancement by registered nurses.
The steps described in this subparagraph shall not be
considered to be an exclusive list of the significant steps
that may be taken to meet the conditions of subparagraph
(A)(iv). Nothing in this subparagraph shall require a facility
to take more than one step if the facility can demonstrate that
taking a second step is not reasonable.
(C) Subject to subparagraph (E), an attestation under
subparagraph (A)--
(i) shall expire on the date that is the later of--
(I) the end of the one-year period beginning
on the date of its filing with the Secretary of
Labor; or
(II) the end of the period of admission under
section 101(a)(15)(H)(i)(c) of the last alien
with respect to whose admission it was applied
(in accordance with clause (ii)); and
(ii) shall apply to petitions filed during the one-
year period beginning on the date of its filing with
the Secretary of Labor if the facility states in each
such petition that it continues to comply with the
conditions in the attestation.
(D) A facility may meet the requirements under this paragraph
with respect to more than one registered nurse in a single
petition.
(E)(i) The Secretary of Labor shall compile and make
available for public examination in a timely manner in
Washington, D.C., a list identifying facilities which have
filed petitions for nonimmigrants under section
101(a)(15)(H)(i)(c) and, for each such facility, a copy of the
facility's attestation under subparagraph (A) (and accompanying
documentation) and each such petition filed by the facility.
(ii) The Secretary of Labor shall establish a process,
including reasonable time limits, for the receipt,
investigation, and disposition of complaints respecting a
facility's failure to meet conditions attested to or a
facility's misrepresentation of a material fact in an
attestation. Complaints may be filed by any aggrieved person or
organization (including bargaining representatives,
associations deemed appropriate by the Secretary, and other
aggrieved parties as determined under regulations of the
Secretary). The Secretary shall conduct an investigation under
this clause if there is reasonable cause to believe that a
facility fails to meet conditions attested to. Subject to the
time limits established under this clause, this subparagraph
shall apply regardless of whether an attestation is expired or
unexpired at the time a complaint is filed.
(iii) Under such process, the Secretary shall provide, within
180 days after the date such a complaint is filed, for a
determination as to whether or not a basis exists to make a
finding described in clause (iv). If the Secretary determines
that such a basis exists, the Secretary shall provide for
notice of such determination to the interested parties and an
opportunity for a hearing on the complaint within 60 days of
the date of the determination.
(iv) If the Secretary of Labor finds, after notice and
opportunity for a hearing, that a facility (for which an
attestation is made) has failed to meet a condition attested to
or that there was a misrepresentation of material fact in the
attestation, 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 per nurse per violation, with
the total penalty not to exceed $10,000 per violation) as the
Secretary determines to be appropriate. Upon receipt of such
notice, the Attorney General shall not approve petitions filed
with respect to a facility during a period of at least one year
for nurses to be employed by the facility.
(v) In addition to the sanctions provided for under clause
(iv), if the Secretary of Labor finds, after notice and an
opportunity for a hearing, that a facility has violated the
condition attested to under subparagraph (A)(iii) (relating to
payment of registered nurses at the prevailing wage rate), the
Secretary shall order the facility to provide for payment of
such amounts of back pay as may be required to comply with such
condition.
(F)(i) The Secretary of Labor shall impose on a facility
filing an attestation under subparagraph (A) a filing fee, in
an amount prescribed by the Secretary based on the costs of
carrying out the Secretary's duties under this subsection, but
not exceeding $250.
(ii) Fees collected under this subparagraph shall be
deposited in a fund established for this purpose in the
Treasury of the United States.
(iii) The collected fees in the fund shall be available to
the Secretary of Labor, to the extent and in such amounts as
may be provided in appropriations Acts, to cover the costs
described in clause (i), in addition to any other funds that
are available to the Secretary to cover such costs.
(3) The period of admission of an alien under section
101(a)(15)(H)(i)(c) shall be 3 years.
(4) The total number of nonimmigrant visas issued pursuant to
petitions granted under section 101(a)(15)(H)(i)(c) in each
fiscal year shall not exceed 500. The number of such visas
issued for employment in each State in each fiscal year shall
not exceed the following:
(A) For States with populations of less than
9,000,000, based upon the 1990 decennial census of
population, 25 visas.
(B) For States with populations of 9,000,000 or more,
based upon the 1990 decennial census of population, 50
visas.
(C) If the total number of visas available under this
paragraph for a fiscal year quarter exceeds the number
of qualified nonimmigrants who may be issued such visas
during those quarters, the visas made available under
this paragraph shall be issued without regard to the
numerical limitation under subparagraph (A) or (B) of
this paragraph during the last fiscal year quarter.
(5) A facility that has filed a petition under section
101(a)(15)(H)(i)(c) to employ a nonimmigrant to perform nursing
services for the facility--
(A) shall provide the nonimmigrant a wage rate and
working conditions commensurate with those of nurses
similarly employed by the facility;
(B) shall require the nonimmigrant to work hours
commensurate with those of nurses similarly employed by
the facility; and
(C) shall not interfere with the right of the
nonimmigrant to join or organize a union.
(6) For purposes of this subsection and section
101(a)(15)(H)(i)(c), the term ``facility'' means a subsection
(d) hospital (as defined in section 1886(d)(1)(B) of the Social
Security Act (42 U.S.C. 1395ww(d)(1)(B))) that meets the
following requirements:
(A) As of March 31, 1997, the hospital was located in
a health professional shortage area (as defined in
section 332 of the Public Health Service Act (42 U.S.C.
254e)).
(B) Based on its settled cost report filed under
title XVIII of the Social Security Act for its cost
reporting period beginning during fiscal year 1994--
(i) the hospital has not less than 190
licensed acute care beds;
(ii) the number of the hospital's inpatient
days for such period which were made up of
patients who (for such days) were entitled to
benefits under part A of such title is not less
than 35 percent of the total number of such
hospital's acute care inpatient days for such
period; and
(iii) the number of the hospital's inpatient
days for such period which were made up of
patients who (for such days) were eligible for
medical assistance under a State plan approved
under title XIX of the Social Security Act, is
not less than 28 percent of the total number of
such hospital's acute care inpatient days for
such period.
(7) For purposes of paragraph (2)(A)(v), the term
``lay off'', with respect to a worker--
(A) means to cause the worker's loss of
employment, other than through a discharge for
inadequate performance, violation of workplace
rules, cause, voluntary departure, voluntary
retirement, or the expiration of a grant or
contract; but
(B) does not include any situation in which
the worker is offered, as an alternative to
such loss of employment, a similar employment
opportunity with the same employer at
equivalent or higher compensation and benefits
than the position from which the employee was
discharged, regardless of whether or not the
employee accepts the offer.
Nothing in this paragraph is intended to limit an
employee's or an employer's rights under a collective
bargaining agreement or other employment contract.
(n)(1) No alien may be admitted or provided status 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 an H-1B
nonimmigrant wages that are at least--
(I) the actual wage level paid by the
employer to all other individuals with
similar experience and qualifications
for the specific employment in
question, or
(II) the prevailing wage level for
the occupational classification in the
area of employment,
whichever is greater, based on the best
information available as of the time of filing
the application, and
(ii) will provide working conditions for such
a nonimmigrant that will not adversely affect
the working conditions of workers similarly
employed.
(B) There is not a strike or lockout in the course of
a labor dispute in the occupational classification at
the place of employment.
(C) The employer, at the time of filing the
application--
(i) has provided notice of the filing under
this paragraph to the bargaining representative
(if any) of the employer's employees in the
occupational classification and area for which
aliens are sought, or
(ii) if there is no such bargaining
representative, has provided notice of filing
in the occupational classification through such
methods as physical posting in conspicuous
locations at the place of employment or
electronic notification to employees in the
occupational classification for which H-1B
nonimmigrants are sought.
(D) The application shall contain a specification of
the number of workers sought, the occupational
classification in which the workers will be employed,
and wage rate and conditions under which they will be
employed.
(E)(i) In the case of an application described in
clause (ii), the employer did not displace and will not
displace a United States worker (as defined in
paragraph (4)) employed by the employer within the
period beginning 90 days before and ending 90 days
after the date of filing of any visa petition supported
by the application.
(ii) An application described in this clause is an
application filed on or after the date final
regulations are first promulgated to carry out this
subparagraph, and before by an H-1B-dependent employer
(as defined in paragraph (3)) or by an employer that
has been found, on or after the date of the enactment
of the American Competitiveness and Workforce
Improvement Act of 1998, under paragraph (2)(C) or (5)
to have committed a willful failure or
misrepresentation during the 5-year period preceding
the filing of the application. An application is not
described in this clause if the only H-1B nonimmigrants
sought in the application are exempt H-1B
nonimmigrants.
(F) In the case of an application described in
subparagraph (E)(ii), the employer will not place the
nonimmigrant with another employer (regardless of
whether or not such other employer is an H-1B-dependent
employer) where--
(i) the nonimmigrant performs 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;
unless the employer has inquired of the other employer
as to whether, and has no knowledge that, within the
period beginning 90 days before and ending 90 days
after the date of the placement of the nonimmigrant
with the other employer, the other employer has
displaced or intends to displace a United States worker
employed by the other employer.
(G)(i) In the case of an application described in
subparagraph (E)(ii), subject to clause (ii), the
employer, prior to filing the application--
(I) has taken good faith steps to recruit, in
the United States using procedures that meet
industry-wide standards and offering
compensation that is at least as great as that
required to be offered to H-1B nonimmigrants
under subparagraph (A), United States workers
for the job for which the nonimmigrant or
nonimmigrants is or are sought; and
(II) has offered the job to any United States
worker who applies and is equally or better
qualified for the job for which the
nonimmigrant or nonimmigrants is or are sought.
(ii) The conditions described in clause (i) shall not
apply to an application filed with respect to the
employment of an H-1B nonimmigrant who is described in
subparagraph (A), (B), or (C) of section 203(b)(1).
The employer shall make available for public examination,
within one working day after the date on which an application
under this paragraph is filed, at the employer's principal
place of business or worksite, a copy of each such application
(and such accompanying documents as are necessary). The
Secretary shall compile, on a current basis, a list (by
employer and by occupational classification) of the
applications filed under this subsection. Such list shall
include the wage rate, number of aliens sought, period of
intended employment, and date of need. The Secretary shall make
such list available for public examination in Washington, D.C.
The Secretary of Labor shall review such an application only
for completeness and obvious inaccuracies. Unless the Secretary
finds that the application is incomplete or obviously
inaccurate, the Secretary shall provide the certification
described in section 101(a)(15)(H)(i)(b) within 7 days of the
date of the filing of the application. The application form
shall include a clear statement explaining the liability under
subparagraph (F) of a placing employer if the other employer
described in such subparagraph displaces a United States worker
as described in such subparagraph. Nothing in subparagraph (G)
shall be construed to prohibit an employer from using
legitimate selection criteria relevant to the job that are
normal or customary to the type of job involved, so long as
such criteria are not applied in a discriminatory manner.
(2)(A) Subject to paragraph (5)(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). 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.
(B) Under such process, the Secretary shall provide, within
30 days after the date such a complaint is filed, for a
determination as to whether or not a reasonable basis exists to
make a finding described in subparagraph (C). If the Secretary
determines that such a reasonable basis exists, the Secretary
shall provide for notice of such determination to the
interested parties and an opportunity for a hearing on the
complaint, in accordance with section 556 of title 5, United
States Code, within 60 days after the date of the
determination. If such a hearing is requested, the Secretary
shall make a finding concerning the matter by not later than 60
days after the date of the hearing. In the case of similar
complaints respecting the same applicant, the Secretary may
consolidate the hearings under this subparagraph on such
complaints.
(C)(i) If the Secretary finds, after notice and opportunity
for a hearing, a failure to meet a condition of paragraph
(1)(B), (1)(E), or (1)(F), a substantial failure to meet a
condition of paragraph (1)(C), (1)(D), or (1)(G)(i)(I), 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 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) If the Secretary finds, after notice and opportunity for
a hearing, a willful failure to meet a condition of paragraph
(1), a willful misrepresentation of material fact in an
application, or a violation of clause (iv)--
(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 $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 2 years for
aliens to be employed by the employer.
(iii) If the Secretary finds, after notice and opportunity
for a hearing, a willful failure to meet a condition of
paragraph (1) or a willful misrepresentation of material fact
in an application, in the course of which failure or
misrepresentation the employer displaced a United States worker
employed by the employer within the period beginning 90 days
before and ending 90 days after the date of filing of any visa
petition supported by the 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 $35,000 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 3 years for
aliens to be employed by the employer.
(iv) It is a violation of this clause for an employer who has
filed an application under this subsection to intimidate,
threaten, restrain, coerce, blacklist, discharge, or in any
other manner discriminate against an employee (which term, for
purposes of this clause, includes a former employee and an
applicant for employment) because the employee has disclosed
information to the employer, or to any other person, that the
employee reasonably believes evidences a violation of this
subsection, or any rule or regulation pertaining to this
subsection, or because the employee cooperates or seeks to
cooperate in an investigation or other proceeding concerning
the employer's compliance with the requirements of this
subsection or any rule or regulation pertaining to this
subsection.
(v) The Secretary of Labor and the Attorney General shall
devise a process under which an H-1B nonimmigrant who files a
complaint regarding a violation of clause (iv) and is otherwise
eligible to remain and work in the United States may be allowed
to seek other appropriate employment in the United States for a
period not to exceed the maximum period of stay authorized for
such nonimmigrant classification.
(vi)(I) It is a violation of this clause for an employer who
has filed an application under this subsection to require an H-
1B nonimmigrant to pay a penalty for ceasing employment with
the employer prior to a date agreed to by the nonimmigrant and
the employer. The Secretary shall determine whether a required
payment is a penalty (and not liquidated damages) pursuant to
relevant State law.
(II) It is a violation of this clause for an employer who has
filed an application under this subsection to require an alien
who is the subject of a petition filed under section 214(c)(1),
for which a fee is imposed under section 214(c)(9), to
reimburse, or otherwise compensate, the employer for part or
all of the cost of such fee. It is a violation of this clause
for such an employer otherwise to accept such reimbursement or
compensation from such an alien.
(III) If the Secretary finds, after notice and opportunity
for a hearing, that an employer has committed a violation of
this clause, the Secretary may impose a civil monetary penalty
of $1,000 for each such violation and issue an administrative
order requiring the return to the nonimmigrant of any amount
paid in violation of this clause, or, if the nonimmigrant
cannot be located, requiring payment of any such amount to the
general fund of the Treasury.
(vii)(I) It is a failure to meet a condition of paragraph
(1)(A) for an employer, who has filed an application under this
subsection and who places an H-1B nonimmigrant designated as a
full-time employee on the petition filed under section
214(c)(1) by the employer with respect to the nonimmigrant,
after the nonimmigrant has entered into employment with the
employer, in nonproductive status due to a decision by the
employer (based on factors such as lack of work), or due to the
nonimmigrant's lack of a permit or license, to fail to pay the
nonimmigrant full-time wages in accordance with paragraph
(1)(A) for all such nonproductive time.
(II) It is a failure to meet a condition of paragraph (1)(A)
for an employer, who has filed an application under this
subsection and who places an H-1B nonimmigrant designated as a
part-time employee on the petition filed under section
214(c)(1) by the employer with respect to the nonimmigrant,
after the nonimmigrant has entered into employment with the
employer, in nonproductive status under circumstances described
in subclause (I), to fail to pay such a nonimmigrant for such
hours as are designated on such petition consistent with the
rate of pay identified on such petition.
(III) In the case of an H-1B nonimmigrant who has not yet
entered into employment with an employer who has had approved
an application under this subsection, and a petition under
section 214(c)(1), with respect to the nonimmigrant, the
provisions of subclauses (I) and (II) shall apply to the
employer beginning 30 days after the date the nonimmigrant
first is admitted into the United States pursuant to the
petition, or 60 days after the date the nonimmigrant becomes
eligible to work for the employer (in the case of a
nonimmigrant who is present in the United States on the date of
the approval of the petition).
(IV) This clause does not apply to a failure to pay wages to
an H-1B nonimmigrant for nonproductive time due to non-work-
related factors, such as the voluntary request of the
nonimmigrant for an absence or circumstances rendering the
nonimmigrant unable to work.
(V) This clause shall not be construed as prohibiting an
employer that is a school or other educational institution from
applying to an H-1B nonimmigrant an established salary practice
of the employer, under which the employer pays to H-1B
nonimmigrants and United States workers in the same
occupational classification an annual salary in disbursements
over fewer than 12 months, if--
(aa) the nonimmigrant agrees to the compressed annual
salary payments prior to the commencement of the
employment; and
(bb) the application of the salary practice to the
nonimmigrant does not otherwise cause the nonimmigrant
to violate any condition of the nonimmigrant's
authorization under this Act to remain in the United
States.
(VI) This clause shall not be construed as superseding clause
(viii).
(viii) It is a failure to meet a condition of paragraph
(1)(A) for an employer who has filed an application under this
subsection to fail to offer to an H-1B nonimmigrant, during the
nonimmigrant's period of authorized employment, benefits and
eligibility for benefits (including the opportunity to
participate in health, life, disability, and other insurance
plans; the opportunity to participate in retirement and savings
plans; and cash bonuses and noncash compensation, such as stock
options (whether or not based on performance)) on the same
basis, and in accordance with the same criteria, as the
employer offers to United States workers.
(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.
(E) If an H-1B-dependent employer places a nonexempt H-1B
nonimmigrant with another employer as provided under paragraph
(1)(F) and the other employer has displaced or displaces a
United States worker employed by such other employer during the
period described in such paragraph, such displacement shall be
considered for purposes of this paragraph a failure, by the
placing employer, to meet a condition specified in an
application submitted under paragraph (1); except that the
Attorney General may impose a sanction described in subclause
(II) of subparagraph (C)(i), (C)(ii), or (C)(iii) only if the
Secretary of Labor found that such placing employer--
(i) knew or had reason to know of such displacement
at the time of the placement of the nonimmigrant with
the other employer; or
(ii) has been subject to a sanction under this
subparagraph based upon a previous placement of an H-1B
nonimmigrant with the same other employer.
(F) The Secretary may, on a case-by-case basis, subject an
employer to random investigations for a period of up to 5
years, beginning on the date (on or after the date of the
enactment of the American Competitiveness and Workforce
Improvement Act of 1998) on which the employer is found by the
Secretary to have committed a willful failure to meet a
condition of paragraph (1) (or has been found under paragraph
(5) to have committed a willful failure to meet the condition
of paragraph (1)(G)(i)(II)) or to have made a willful
misrepresentation of material fact in an application. The
preceding sentence shall apply to an employer regardless of
whether or not the employer is an H-1B-dependent employer. The
authority of the Secretary under this subparagraph shall not be
construed to be subject to, or limited by, the requirements of
subparagraph (A).
(G)(i) The Secretary of Labor may initiate an investigation
of any employer that employs nonimmigrants described in section
101(a)(15)(H)(i)(b) if the Secretary of Labor has reasonable
cause to believe that the employer is not in compliance with
this subsection. In the case of an investigation under this
clause, the Secretary of Labor (or the acting Secretary in the
case of the absence of disability of the Secretary of Labor)
shall personally certify that reasonable cause exists and shall
approve commencement of the investigation. The investigation
may be initiated for reasons other than completeness and
obvious inaccuracies by the employer in complying with this
subsection.
(ii) If the Secretary of Labor receives specific credible
information from a source who is likely to have knowledge of an
employer's practices or employment conditions, or an employer's
compliance with the employer's labor condition application
under paragraph (1), and whose identity is known to the
Secretary of Labor, and such information provides reasonable
cause to believe that the employer has committed a willful
failure to meet a condition of paragraph (1)(A), (1)(B),
(1)(C), (1)(E), (1)(F), or (1)(G)(i)(I), has engaged in a
pattern or practice of failures to meet such a condition, or
has committed a substantial failure to meet such a condition
that affects multiple employees, the Secretary of Labor may
conduct an investigation into the alleged failure or failures.
The Secretary of Labor may withhold the identity of the source
from the employer, and the source's identity shall not be
subject to disclosure under section 552 of title 5, United
States Code.
(iii) The Secretary of Labor shall establish a procedure for
any person desiring to provide to the Secretary of Labor
information described in clause (ii) that may be used, in whole
or in part, as the basis for the commencement of an
investigation described in such clause, to provide the
information in writing on a form developed and provided by the
Secretary of Labor and completed by or on behalf of the person.
The person may not be an officer or employee of the Department
of Labor, unless the information satisfies the requirement of
clause (iv)(II) (although an officer or employee of the
Department of Labor may complete the form on behalf of the
person).
(iv) Any investigation initiated or approved by the Secretary
of Labor under clause (ii) shall be based on information that
satisfies the requirements of such clause and that--
(I) originates from a source other than an officer or
employee of the Department of Labor; or
(II) was lawfully obtained by the Secretary of Labor
in the course of lawfully conducting another Department
of Labor investigation under this Act of any other Act.
(v) The receipt by the Secretary of Labor of information
submitted by an employer to the Attorney General or the
Secretary of Labor for purposes of securing the employment of a
nonimmigrant described in section 101(a)(15)(H)(i)(b) shall not
be considered a receipt of information for purposes of clause
(ii).
(vi) No investigation described in clause (ii) (or hearing
described in clause (viii) based on such investigation) may be
conducted with respect to information about a failure to meet a
condition described in clause (ii), unless the Secretary of
Labor receives the information not later than 12 months after
the date of the alleged failure.
(vii) The Secretary of Labor shall provide notice to an
employer with respect to whom there is reasonable cause to
initiate an investigation described in clauses (i) or (ii),
prior to the commencement of an investigation under such
clauses, of the intent to conduct an investigation. The notice
shall be provided in such a manner, and shall contain
sufficient detail, to permit the employer to respond to the
allegations before an investigation is commenced. The Secretary
of Labor is not required to comply with this clause if the
Secretary of Labor determines that to do so would interfere
with an effort by the Secretary of Labor to secure compliance
by the employer with the requirements of this subsection. There
shall be no judicial review of a determination by the Secretary
of Labor under this clause.
(viii) An investigation under clauses (i) or (ii) may be
conducted for a period of up to 60 days. If the Secretary of
Labor determines after such an investigation that a reasonable
basis exists to make a finding that the employer has committed
a willful failure to meet a condition of paragraph (1)(A),
(1)(B), (1)(C), (1)(E), (1)(F), or (1)(G)(i)(I), has engaged in
a pattern or practice of failures to meet such a condition, or
has committed a substantial failure to meet such a condition
that affects multiple employees, the Secretary of Labor shall
provide for notice of such determination to the interested
parties and an opportunity for a hearing in accordance with
section 556 of title 5, United States Code, within 120 days
after the date of the determination. If such a hearing is
requested, the Secretary of Labor shall make a finding
concerning the matter by not later than 120 days after the date
of the hearing.
(H)(i) Except as provided in clauses (ii) and (iii), a person
or entity is considered to have complied with the requirements
of this subsection, notwithstanding a technical or procedural
failure to meet such requirements, if there was a good faith
attempt to comply with the requirements.
(ii) Clause (i) shall not apply if--
(I) the Department of Labor (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.
(iii) A person or entity that, in the course of an
investigation, is found to have violated the prevailing
wage requirements set forth in paragraph (1)(A), shall
not be assessed fines or other penalties for such
violation if the person or entity can establish that
the manner in which the prevailing wage was calculated
was consistent with recognized industry standards and
practices.
(iv) Clauses (i) and (iii) shall not apply to a
person or entity that has engaged in or is engaging in
a pattern or practice of willful violations of this
subsection.
(I) Nothing in this subsection shall be construed as
superseding or preempting any other enforcement-related
authority under this Act (such as the authorities under section
274B), or any other Act.
(3)(A) For purposes of this subsection, the term ``H-1B-
dependent employer'' means an employer that--
(i)(I) has 25 or fewer full-time equivalent employees
who are employed in the United States; and (II) employs
more than 7 H-1B nonimmigrants;
(ii)(I) has at least 26 but not more than 50 full-
time equivalent employees who are employed in the
United States; and (II) employs more than 12 H-1B
nonimmigrants; or
(iii)(I) has at least 51 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.
(B) For purposes of this subsection--
(i) the term ``exempt H-1B nonimmigrant'' means an H-
1B nonimmigrant who--
(I) receives wages (including cash bonuses
and similar compensation) at an annual rate
equal to at least $60,000; or
(II) has attained a master's or higher degree
(or its equivalent) in a specialty related to
the intended employment; and
(ii) the term nonexempt H-1B nonimmigrant means an H-
1B nonimmigrant who is not an exempt H-1B nonimmigrant.
(C) For purposes of subparagraph (A)--
(i) in computing the number of full-time equivalent
employees and the number of H-1B nonimmigrants, exempt
H-1B nonimmigrants shall not be taken into account
during the longer of--
(I) the 6-month period beginning on the date
of the enactment of the American
Competitiveness and Workforce Improvement Act
of 1998; or
(II) the period beginning on the date of the
enactment of the American Competitiveness and
Workforce Improvement Act of 1998 and ending on
the date final regulations are issued to carry
out this paragraph; and
(ii) 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.
(4) For purposes of this subsection:
(A) The term ``area of employment'' means the area
within normal commuting distance of the worksite or
physical location where the work of the H-1B
nonimmigrant is or will be performed. If such worksite
or location is within a Metropolitan Statistical Area,
any place within such area is deemed to be within the
area of employment.
(B) In the case of an application with respect to one
or more H-1B nonimmigrants by an employer, the employer
is considered to ``displace'' a United States worker
from a job if the employer lays off the worker from a
job that is essentially the equivalent of the job for
which the nonimmigrant or nonimmigrants is or are
sought. A job shall not be considered to be essentially
equivalent of another job unless it involves
essentially the same responsibilities, was held by a
United States worker with substantially equivalent
qualifications and experience, and is located in the
same area of employment as the other job.
(C) The term ``H-1B nonimmigrant'' means an alien
admitted or provided status as a nonimmigrant described
in section 101(a)(15)(H)(i)(b).
(D)(i) The term ``lays off'', with respect to a
worker--
(I) means to cause the worker's loss of
employment, other than through a discharge for
inadequate performance, violation of workplace
rules, cause, voluntary departure, voluntary
retirement, or the expiration of a grant or
contract (other than a temporary employment
contract entered into in order to evade a
condition described in subparagraph (E) or (F)
of paragraph (1)); but
(II) does not include any situation in which
the worker is offered, as an alternative to
such loss of employment, a similar employment
opportunity with the same employer (or, in the
case of a placement of a worker with another
employer under paragraph (1)(F), with either
employer described in such paragraph) at
equivalent or higher compensation and benefits
than the position from which the employee was
discharged, regardless of whether or not the
employee accepts the offer.
(ii) Nothing in this subparagraph is intended to
limit an employee's rights under a collective
bargaining agreement or other employment contract.
(E) The term ``United States worker'' means an
employee who--
(i) is a citizen or national of the United
States; or
(ii) is an alien who is lawfully admitted for
permanent residence, is admitted as a refugee
under section 207, is granted asylum under
section 208, or is an immigrant otherwise
authorized, by this Act or by the Attorney
General, to be employed.
(5)(A) This paragraph shall apply instead of subparagraphs
(A) through (E) of paragraph (2) in the case of a violation
described in subparagraph (B), but shall not be construed to
limit or affect the authority of the Secretary or the Attorney
General with respect to any other violation.
(B) The Attorney General shall establish a process for the
receipt, initial review, and disposition in accordance with
this paragraph of complaints respecting an employer's failure
to meet the condition of paragraph (1)(G)(i)(II) or a
petitioner's misrepresentation of material facts with respect
to such condition. Complaints may be filed by an aggrieved
individual who has submitted a resume or otherwise applied in a
reasonable manner for the job that is the subject of the
condition. No proceeding shall be conducted under this
paragraph on a complaint concerning such a failure or
misrepresentation unless the Attorney General determines that
the complaint was filed not later than 12 months after the date
of the failure or misrepresentation, respectively.
(C) If the Attorney General finds that a complaint has been
filed in accordance with subparagraph (B) and there is
reasonable cause to believe that such a failure or
misrepresentation described in such complaint has occurred, the
Attorney General shall initiate binding arbitration proceedings
by requesting the Federal Mediation and Conciliation Service to
appoint an arbitrator from the roster of arbitrators maintained
by such Service. The procedure and rules of such Service shall
be applicable to the selection of such arbitrator and to such
arbitration proceedings. The Attorney General shall pay the fee
and expenses of the arbitrator.
(D)(i) The arbitrator shall make findings respecting whether
a failure or misrepresentation described in subparagraph (B)
occurred. If the arbitrator concludes that failure or
misrepresentation was willful, the arbitrator shall make a
finding to that effect. The arbitrator may not find such a
failure or misrepresentation (or that such a failure or
misrepresentation was willful) unless the complainant
demonstrates such a failure or misrepresentation (or its
willful character) by clear and convincing evidence. The
arbitrator shall transmit the findings in the form of a written
opinion to the parties to the arbitration and the Attorney
General. Such findings shall be final and conclusive, and,
except as provided in this subparagraph, no official or court
of the United States shall have power or jurisdiction to review
any such findings.
(ii) The Attorney General may review and reverse or modify
the findings of an arbitrator only on the same bases as an
award of an arbitrator may be vacated or modified under section
10 or 11 of title 9, United States Code.
(iii) With respect to the findings of an arbitrator, a court
may review only the actions of the Attorney General under
clause (ii) and may set aside such actions only on the grounds
described in subparagraph (A), (B), or (C) of section 706(a)(2)
of title 5, United States Code. Notwithstanding any other
provision of law, such judicial review may only be brought in
an appropriate United States court of appeals.
(E) If the Attorney General receives a finding of an
arbitrator under this paragraph that an employer has failed to
meet the condition of paragraph (1)(G)(i)(II) or has
misrepresented a material fact with respect to such condition,
unless the Attorney General reverses or modifies the finding
under subparagraph (D)(ii)--
(i) the Attorney General may impose administrative
remedies (including civil monetary penalties in an
amount not to exceed $1,000 per violation or $5,000 per
violation in the case of a willful failure or
misrepresentation) as the Attorney General determines
to be appropriate; and
(ii) the Attorney General is authorized to not
approve petitions filed, with respect to that employer
and for aliens to be employed by the employer, under
section 204 or 214(c)--
(I) during a period of not more than 1 year;
or
(II) in the case of a willful failure or
willful misrepresentation, during a period of
not more than 2 years.
(F) The Attorney General shall not delegate, to any other
employee or official of the Department of Justice, any function
of the Attorney General under this paragraph, until 60 days
after the Attorney General has submitted a plan for such
delegation to the Committees on the Judiciary of the United
States House of Representatives and the Senate.
(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.
(p)(1) In computing the prevailing wage level for an
occupational classification in an area of employment for
purposes of subsections (a)(5)(A), (n)(1)(A)(i)(II), and
(t)(1)(A)(i)(II) in the case of an employee of--
(A) an institution of higher education (as defined in
section 101(a) of the Higher Education Act of 1965), or
a related or affiliated nonprofit entity; or
(B) a nonprofit research organization or a
Governmental research organization,
the prevailing wage level shall only take into account
employees at such institutions and organizations in the area of
employment.
(2) With respect to a professional athlete (as defined in
subsection (a)(5)(A)(iii)(II)) when the job opportunity is
covered by professional sports league rules or regulations, the
wage set forth in those rules or regulations shall be
considered as not adversely affecting the wages of United
States workers similarly employed and be considered the
prevailing wage.
(3) The prevailing wage required to be paid pursuant to
subsections (a)(5)(A), (n)(1)(A)(i)(II), and (t)(1)(A)(i)(II)
shall be 100 percent of the wage determined pursuant to those
sections.
(4) Where the Secretary of Labor uses, or makes available to
employers, a governmental survey to determine the prevailing
wage, such survey shall provide at least 4 levels of wages
commensurate with experience, education, and the level of
supervision. Where an existing government survey has only 2
levels, 2 intermediate levels may be created by dividing by 3,
the difference between the 2 levels offered, adding the
quotient thus obtained to the first level and subtracting that
quotient from the second level.
(q) Any alien admitted under section 101(a)(15)(B) may accept
an honorarium payment and associated incidental expenses for a
usual academic activity or activities (lasting not longer than
9 days at any single institution), as defined by the Attorney
General in consultation with the Secretary of Education, if
such payment is offered by an institution or organization
described in subsection (p)(1) and is made for services
conducted for the benefit of that institution or entity and if
the alien has not accepted such payment or expenses from more
than 5 institutions or organizations in the previous 6-month
period.
(r) Subsection (a)(5)(C) shall not apply to an alien who
seeks to enter the United States for the purpose of performing
labor as a nurse who presents to the consular officer (or in
the case of an adjustment of status, the Attorney General) a
certified statement from the Commission on Graduates of Foreign
Nursing Schools (or an equivalent independent credentialing
organization approved for the certification of nurses under
subsection (a)(5)(C) by the Attorney General in consultation
with the Secretary of Health and Human Services) that--
(1) the alien has a valid and unrestricted license as
a nurse in a State where the alien intends to be
employed and such State verifies that the foreign
licenses of alien nurses are authentic and
unencumbered;
(2) the alien has passed the National Council
Licensure Examination (NCLEX);
(3) the alien is a graduate of a nursing program--
(A) in which the language of instruction was
English;
(B) located in a country--
(i) designated by such commission not
later than 30 days after the date of
the enactment of the Nursing Relief for
Disadvantaged Areas Act of 1999, based
on such commission's assessment that
the quality of nursing education in
that country, and the English language
proficiency of those who complete such
programs in that country, justify the
country's designation; or
(ii) designated on the basis of such
an assessment by unanimous agreement of
such commission and any equivalent
credentialing organizations which have
been approved under subsection
(a)(5)(C) for the certification of
nurses under this subsection; and
(C)(i) which was in operation on or before
the date of the enactment of the Nursing Relief
for Disadvantaged Areas Act of 1999; or
(ii) has been approved by unanimous agreement
of such commission and any equivalent
credentialing organizations which have been
approved under subsection (a)(5)(C) for the
certification of nurses under this subsection.
(s) In determining whether an alien described in subsection
(a)(4)(C)(i) is inadmissible under subsection (a)(4) or
ineligible to receive an immigrant visa or otherwise to adjust
to the status of permanent resident by reason of subsection
(a)(4), the consular officer or the Attorney General shall not
consider any benefits the alien may have received that were
authorized under section 501 of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (8 U.S.C. 1641(c)).
(t)(1) No alien may be admitted or provided status as a
nonimmigrant under section 101(a)(15)(H)(i)(b1) or section
101(a)(15)(E)(iii) in an occupational classification unless the
employer has filed with the Secretary of Labor an attestation
stating the following:
(A) The employer--
(i) is offering and will offer during the
period of authorized employment to aliens
admitted or provided status under section
101(a)(15)(H)(i)(b1) or section
101(a)(15)(E)(iii) wages that are at least--
(I) the actual wage level paid by the
employer to all other individuals with
similar experience and qualifications
for the specific employment in
question; or
(II) the prevailing wage level for
the occupational classification in the
area of employment,
whichever is greater, based on the best
information available as of the time of filing
the attestation; and
(ii) will provide working conditions for such
a nonimmigrant that will not adversely affect
the working conditions of workers similarly
employed.
(B) There is not a strike or lockout in the course of
a labor dispute in the occupational classification at
the place of employment.
(C) The employer, at the time of filing the
attestation--
(i) has provided notice of the filing under
this paragraph to the bargaining representative
(if any) of the employer's employees in the
occupational classification and area for which
aliens are sought; or
(ii) if there is no such bargaining
representative, has provided notice of filing
in the occupational classification through such
methods as physical posting in conspicuous
locations at the place of employment or
electronic notification to employees in the
occupational classification for which
nonimmigrants under section
101(a)(15)(H)(i)(b1) or section
101(a)(15)(E)(iii) are sought.
(D) A specification of the number of workers sought,
the occupational classification in which the workers
will be employed, and wage rate and conditions under
which they will be employed.
(2)(A) The employer shall make available for public
examination, within one working day after the date on which an
attestation under this subsection is filed, at the employer's
principal place of business or worksite, a copy of each such
attestation (and such accompanying documents as are necessary).
(B)(i) The Secretary of Labor shall compile, on a current
basis, a list (by employer and by occupational classification)
of the attestations filed under this subsection. Such list
shall include, with respect to each attestation, the wage rate,
number of aliens sought, period of intended employment, and
date of need.
(ii) The Secretary of Labor shall make such list available
for public examination in Washington, D.C.
(C) The Secretary of Labor shall review an attestation filed
under this subsection only for completeness and obvious
inaccuracies. Unless the Secretary of Labor finds that an
attestation is incomplete or obviously inaccurate, the
Secretary of Labor shall provide the certification described in
section 101(a)(15)(H)(i)(b1) or section 101(a)(15)(E)(iii)
within 7 days of the date of the filing of the attestation.
(3)(A) The Secretary of Labor shall establish a process for
the receipt, investigation, and disposition of complaints
respecting the failure of an employer to meet a condition
specified in an attestation submitted under this subsection or
misrepresentation by the employer of material facts in such an
attestation. Complaints may be filed by any aggrieved person or
organization (including bargaining representatives). No
investigation or hearing shall be conducted on a complaint
concerning such a failure or misrepresentation unless the
complaint was filed not later than 12 months after the date of
the failure or misrepresentation, respectively. The Secretary
of Labor shall conduct an investigation under this paragraph if
there is reasonable cause to believe that such a failure or
misrepresentation has occurred.
(B) Under the process described in subparagraph (A), the
Secretary of Labor shall provide, within 30 days after the date
a complaint is filed, for a determination as to whether or not
a reasonable basis exists to make a finding described in
subparagraph (C). If the Secretary of Labor determines that
such a reasonable basis exists, the Secretary of Labor shall
provide for notice of such determination to the interested
parties and an opportunity for a hearing on the complaint, in
accordance with section 556 of title 5, United States Code,
within 60 days after the date of the determination. If such a
hearing is requested, the Secretary of Labor shall make a
finding concerning the matter by not later than 60 days after
the date of the hearing. In the case of similar complaints
respecting the same applicant, the Secretary of Labor may
consolidate the hearings under this subparagraph on such
complaints.
(C)(i) If the Secretary of Labor finds, after notice and
opportunity for a hearing, a failure to meet a condition of
paragraph (1)(B), a substantial failure to meet a condition of
paragraph (1)(C) or (1)(D), or a misrepresentation of material
fact in an attestation--
(I) the Secretary of Labor shall notify the Secretary
of State and the Secretary of Homeland Security of such
finding and may, in addition, impose such other
administrative remedies (including civil monetary
penalties in an amount not to exceed $1,000 per
violation) as the Secretary of Labor determines to be
appropriate; and
(II) the Secretary of State or the Secretary of
Homeland Security, as appropriate, shall not approve
petitions or applications filed with respect to that
employer under section 204, 214(c),
101(a)(15)(H)(i)(b1), or 101(a)(15)(E)(iii) or section
101(a)(15)(E)(iii) during a period of at least 1 year
for aliens to be employed by the employer.
(ii) If the Secretary of Labor finds, after notice and
opportunity for a hearing, a willful failure to meet a
condition of paragraph (1), a willful misrepresentation of
material fact in an attestation, or a violation of clause
(iv)--
(I) the Secretary of Labor shall notify the Secretary
of State and the Secretary of Homeland Security of such
finding and may, in addition, impose such other
administrative remedies (including civil monetary
penalties in an amount not to exceed $5,000 per
violation as the Secretary of Labor determines to be
appropriate; and
(II) the Secretary of State or the Secretary of
Homeland Security, as appropriate, shall not approve
petitions or applications filed with respect to that
employer under section 204, 214(c),
101(a)(15)(H)(i)(b1), or 101(a)(15)(E)(iii) or section
101(a)(15)(E)(iii) during a period of at least 2 years
for aliens to be employed by the employer.
(iii) If the Secretary of Labor finds, after notice and
opportunity for a hearing, a willful failure to meet a
condition of paragraph (1) or a willful misrepresentation of
material fact in an attestation, in the course of which failure
or misrepresentation the employer displaced a United States
worker employed by the employer within the period beginning 90
days before and ending 90 days after the date of filing of any
visa petition or application supported by the attestation--
(I) the Secretary of Labor shall notify the Secretary
of State and the Secretary of Homeland Security of such
finding and may, in addition, impose such other
administrative remedies (including civil monetary
penalties in an amount not to exceed $35,000 per
violation) as the Secretary of Labor determines to be
appropriate; and
(II) the Secretary of State or the Secretary of
Homeland Security, as appropriate, shall not approve
petitions or applications filed with respect to that
employer under section 204, 214(c),
101(a)(15)(H)(i)(b1), or 101(a)(15)(E)(iii) or section
101(a)(15)(E)(iii) during a period of at least 3 years
for aliens to be employed by the employer.
(iv) It is a violation of this clause for an employer who has
filed an attestation under this subsection to intimidate,
threaten, restrain, coerce, blacklist, discharge, or in any
other manner discriminate against an employee (which term, for
purposes of this clause, includes a former employee and an
applicant for employment) because the employee has disclosed
information to the employer, or to any other person, that the
employee reasonably believes evidences a violation of this
subsection, or any rule or regulation pertaining to this
subsection, or because the employee cooperates or seeks to
cooperate in an investigation or other proceeding concerning
the employer's compliance with the requirements of this
subsection or any rule or regulation pertaining to this
subsection.
(v) The Secretary of Labor and the Secretary of Homeland
Security shall devise a process under which a nonimmigrant
under section 101(a)(15)(H)(i)(b1) or section
101(a)(15)(E)(iii) who files a complaint regarding a violation
of clause (iv) and is otherwise eligible to remain and work in
the United States may be allowed to seek other appropriate
employment in the United States for a period not to exceed the
maximum period of stay authorized for such nonimmigrant
classification.
(vi)(I) It is a violation of this clause for an employer who
has filed an attestation under this subsection to require a
nonimmigrant under section 101(a)(15)(H)(i)(b1) or section
101(a)(15)(E)(iii) to pay a penalty for ceasing employment with
the employer prior to a date agreed to by the nonimmigrant and
the employer. The Secretary of Labor shall determine whether a
required payment is a penalty (and not liquidated damages)
pursuant to relevant State law.
(II) If the Secretary of Labor finds, after notice and
opportunity for a hearing, that an employer has committed a
violation of this clause, the Secretary of Labor may impose a
civil monetary penalty of $1,000 for each such violation and
issue an administrative order requiring the return to the
nonimmigrant of any amount paid in violation of this clause,
or, if the nonimmigrant cannot be located, requiring payment of
any such amount to the general fund of the Treasury.
(vii)(I) It is a failure to meet a condition of paragraph
(1)(A) for an employer who has filed an attestation under this
subsection and who places a nonimmigrant under section
101(a)(15)(H)(i)(b1) or section 101(a)(15)(E)(iii) designated
as a full-time employee in the attestation, after the
nonimmigrant has entered into employment with the employer, in
nonproductive status due to a decision by the employer (based
on factors such as lack of work), or due to the nonimmigrant's
lack of a permit or license, to fail to pay the nonimmigrant
full-time wages in accordance with paragraph (1)(A) for all
such nonproductive time.
(II) It is a failure to meet a condition of paragraph (1)(A)
for an employer who has filed an attestation under this
subsection and who places a nonimmigrant under section
101(a)(15)(H)(i)(b1) or section 101(a)(15)(E)(iii) designated
as a part-time employee in the attestation, after the
nonimmigrant has entered into employment with the employer, in
nonproductive status under circumstances described in subclause
(I), to fail to pay such a nonimmigrant for such hours as are
designated on the attestation consistent with the rate of pay
identified on the attestation.
(III) In the case of a nonimmigrant under section
101(a)(15)(H)(i)(b1) or section 101(a)(15)(E)(iii) who has not
yet entered into employment with an employer who has had
approved an attestation under this subsection with respect to
the nonimmigrant, the provisions of subclauses (I) and (II)
shall apply to the employer beginning 30 days after the date
the nonimmigrant first is admitted into the United States, or
60 days after the date the nonimmigrant becomes eligible to
work for the employer in the case of a nonimmigrant who is
present in the United States on the date of the approval of the
attestation filed with the Secretary of Labor.
(IV) This clause does not apply to a failure to pay wages to
a nonimmigrant under section 101(a)(15)(H)(i)(b1) or section
101(a)(15)(E)(iii) for nonproductive time due to non-work-
related factors, such as the voluntary request of the
nonimmigrant for an absence or circumstances rendering the
nonimmigrant unable to work.
(V) This clause shall not be construed as prohibiting an
employer that is a school or other educational institution from
applying to a nonimmigrant under section 101(a)(15)(H)(i)(b1)
or section 101(a)(15)(E)(iii) an established salary practice of
the employer, under which the employer pays to nonimmigrants
under section 101(a)(15)(H)(i)(b1) or section
101(a)(15)(E)(iii) and United States workers in the same
occupational classification an annual salary in disbursements
over fewer than 12 months, if--
(aa) the nonimmigrant agrees to the compressed annual
salary payments prior to the commencement of the
employment; and
(bb) the application of the salary practice to the
nonimmigrant does not otherwise cause the nonimmigrant
to violate any condition of the nonimmigrant's
authorization under this Act to remain in the United
States.
(VI) This clause shall not be construed as superseding clause
(viii).
(viii) It is a failure to meet a condition of paragraph
(1)(A) for an employer who has filed an attestation under this
subsection to fail to offer to a nonimmigrant under section
101(a)(15)(H)(i)(b1) or section 101(a)(15)(E)(iii), during the
nonimmigrant's period of authorized employment, benefits and
eligibility for benefits (including the opportunity to
participate in health, life, disability, and other insurance
plans; the opportunity to participate in retirement and savings
plans; and cash bonuses and non-cash compensation, such as
stock options (whether or not based on performance)) on the
same basis, and in accordance with the same criteria, as the
employer offers to United States workers.
(D) If the Secretary of Labor finds, after notice and
opportunity for a hearing, that an employer has not paid wages
at the wage level specified in the attestation and required
under paragraph (1), the Secretary of Labor 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.
(E) The Secretary of Labor may, on a case-by-case basis,
subject an employer to random investigations for a period of up
to 5 years, beginning on the date on which the employer is
found by the Secretary of Labor to have committed a willful
failure to meet a condition of paragraph (1) or to have made a
willful misrepresentation of material fact in an attestation.
The authority of the Secretary of Labor under this subparagraph
shall not be construed to be subject to, or limited by, the
requirements of subparagraph (A).
(F) Nothing in this subsection shall be construed as
superseding or preempting any other enforcement-related
authority under this Act (such as the authorities under section
274B), or any other Act.
(4) For purposes of this subsection:
(A) The term ``area of employment'' means the area
within normal commuting distance of the worksite or
physical location where the work of the nonimmigrant
under section 101(a)(15)(H)(i)(b1) or section
101(a)(15)(E)(iii) is or will be performed. If such
worksite or location is within a Metropolitan
Statistical Area, any place within such area is deemed
to be within the area of employment.
(B) In the case of an attestation with respect to one
or more nonimmigrants under section
101(a)(15)(H)(i)(b1) or section 101(a)(15)(E)(iii) by
an employer, the employer is considered to ``displace''
a United States worker from a job if the employer lays
off the worker from a job that is essentially the
equivalent of the job for which the nonimmigrant or
nonimmigrants is or are sought. A job shall not be
considered to be essentially equivalent of another job
unless it involves essentially the same
responsibilities, was held by a United States worker
with substantially equivalent qualifications and
experience, and is located in the same area of
employment as the other job.
(C)(i) The term ``lays off'', with respect to a
worker--
(I) means to cause the worker's loss of
employment, other than through a discharge for
inadequate performance, violation of workplace
rules, cause, voluntary departure, voluntary
retirement, or the expiration of a grant or
contract; but
(II) does not include any situation in which
the worker is offered, as an alternative to
such loss of employment, a similar employment
opportunity with the same employer at
equivalent or higher compensation and benefits
than the position from which the employee was
discharged, regardless of whether or not the
employee accepts the offer.
(ii) Nothing in this subparagraph is intended to
limit an employee's rights under a collective
bargaining agreement or other employment contract.
(D) The term ``United States worker'' means an
employee who--
(i) is a citizen or national of the United
States; or
(ii) is an alien who is lawfully admitted for
permanent residence, is admitted as a refugee
under section 207 of this title, is granted
asylum under section 208, or is an immigrant
otherwise authorized, by this Act or by the
Secretary of Homeland Security, to be employed.
(t)(1) Except as provided in paragraph (2), no person
admitted under section 101(a)(15)(Q)(ii)(I), or acquiring such
status after admission, shall be eligible to apply for
nonimmigrant status, an immigrant visa, or permanent residence
under this Act until it is established that such person has
resided and been physically present in the person's country of
nationality or last residence for an aggregate of at least 2
years following departure from the United States.
(2) The Secretary of Homeland Security may waive the
requirement of such 2-year foreign residence abroad if the
Secretary determines that--
(A) departure from the United States would impose
exceptional hardship upon the alien's spouse or child
(if such spouse or child is a citizen of the United
States or an alien lawfully admitted for permanent
residence); or
(B) the admission of the alien is in the public
interest or the national interest of the United States.
* * * * * * *
Chapter 4--Inspection, Apprehension, Examination, Exclusion, and
Removal
* * * * * * *
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 or who arrives in the United States (whether
or not at a designated port of arrival and including an
alien 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 and certain other aliens who have not been
admitted or paroled.--
(A) Screening.--
(i) In general.--If an immigration
officer determines that an alien (other
than an alien described in subparagraph
(F)) who is arriving in the United
States or is described in clause (iii)
is inadmissible under [section
212(a)(6)(C)] subparagraph (A) or (C)
of section 212(a)(6) or 212(a)(7), the
officer shall order the alien removed
from the United States without further
hearing or review unless the alien
indicates either an intention to apply
for asylum under section 208 or a fear
of persecution.
(ii) Claims for asylum.--If an
immigration officer determines that an
alien (other than an alien described in
subparagraph (F)) who is arriving in
the United States or is described in
clause (iii) is inadmissible under
[section 212(a)(6)(C)] subparagraph (A)
or (C) of section 212(a)(6) or
212(a)(7) and the alien indicates
either 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).
(iii) Application to certain other
aliens.--
(I) In general.--The Attorney
General may apply clauses (i)
and (ii) of this subparagraph
to any or all aliens described
in subclause (II) as designated
by the Attorney General. Such
designation shall be in the
sole and unreviewable
discretion of the Attorney
General and may be modified at
any time.
(II) Aliens described.--An
alien described in this clause
is an alien who is not
described in subparagraph (F),
who has not been admitted or
paroled into the United States,
and who has not affirmatively
shown, to the satisfaction of
an immigration officer, that
the alien has been physically
present in the United States
continuously for the 2-year
period immediately prior to the
date of the determination of
inadmissibility under this
subparagraph.
(iv) Ineligibility for parole.--An
alien described in clause (i) or (ii)
shall not be eligible for parole except
as expressly authorized pursuant to
section 212(d)(5), or for parole or
release pursuant to section 236(a).
(B) Asylum interviews.--
(i) Conduct by asylum officers.--An
asylum officer shall conduct interviews
of aliens referred under subparagraph
(A)(ii), either at a port of entry or
at such other place designated by the
Attorney General.
(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.] asylum and shall not be
released (including pursuant to parole
or release pursuant to section 236(a)
but excluding as expressly authorized
pursuant to section 212(d)(5)) other
than to be removed or returned to a
country as described in paragraph (3).
(iii) Removal without further review
if no credible fear of persecution.--
(I) In general.--Subject to
subclause (III), 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) Record of
determination.--The officer
shall prepare a written record
of a determination under
subclause (I). Such record
shall include a summary of the
material facts as stated by the
applicant, such additional
facts (if any) relied upon by
the officer, and the officer's
analysis of why, in the light
of such facts, the alien has
not established a credible fear
of persecution. A copy of the
officer's interview notes shall
be attached to the written
summary.
(III) Review of
determination.--The Attorney
General shall provide by
regulation and upon the alien's
request for prompt review by an
immigration judge of a
determination under subclause
(I) that the alien does not
have a credible fear of
persecution. Such review shall
include an opportunity for the
alien to be heard and
questioned by the immigration
judge, either in person or by
telephonic or video connection.
Review shall be concluded as
expeditiously as possible, to
the maximum extent practicable
within 24 hours, but in no case
later than 7 days after the
date of the determination under
subclause (I).
(IV) Mandatory [detention]
detention, return, or
removal.--Any alien subject to
the procedures under this
clause shall be detained
pending a final determination
of credible fear of persecution
and, if found not to have such
a fear, until removed. The
alien shall not be released
(including pursuant to parole
or release pursuant to section
236(a) but excluding as
expressly authorized pursuant
to section 212(d)(5)) other
than to be removed or returned
to a country as described in
paragraph (3).
(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 unreasonably delay the process.
(v) Credible fear of persecution
defined.--For purposes of this
subparagraph, the term ``credible fear
of persecution'' means that [there is a
significant possibility, taking into
account the credibility of the
statements made by the alien in support
of the alien's claim and such other
facts as are known to the officer, that
the alien could establish eligibility
for asylum under section 208.], taking
into account the credibility of the
statements made by the alien in support
of the alien's claim, as determined
pursuant to section 208(b)(1)(B)(iii),
and such other facts as are known to
the officer, the alien more likely than
not could establish eligibility for
asylum under section 208, and it is
more likely than not that the
statements made by, and on behalf of,
the alien in support of the alien's
claim are true.
(C) Limitation on administrative review.--
Except as provided in subparagraph
(B)(iii)(III), 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, to
have been admitted as a refugee under section
207, or to have been granted asylum under
section 208.
(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).
(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 comparable to that
provided to full-time adjudicators of
applications under section 208, and
(ii) is supervised by an officer who
meets the condition described in clause
(i) and has had substantial experience
adjudicating asylum applications.
(F) Exception.--Subparagraph (A) shall not
apply to an alien who is a native or citizen of
a country in the Western Hemisphere with whose
government the United States does not have full
diplomatic relations and who arrives by
aircraft at a port of entry.
(G) Commonwealth of the northern mariana
islands.--Nothing in this subsection shall be
construed to authorize or require any person
described in section 208(e) to be permitted to
apply for asylum under section 208 at any time
before January 1, 2014.
(2) Inspection of other aliens.--
(A) In general.--[Subject to subparagraphs
(B) and (C),] Subject to subparagraph (B) and
paragraph (3), 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 proceeding under section 240.
The alien shall not be released (including
pursuant to parole or release pursuant to
section 236(a) but excluding as expressly
authorized pursuant to section 212(d)(5)) other
than to be removed or returned to a country as
described in paragraph (3).
(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.
[(C) Treatment of aliens arriving from
contiguous territory.--In the case of an alien
described in subparagraph (A) who is arriving
on land (whether or not at a designated port of
arrival) from a foreign territory contiguous to
the United States, the Attorney General may
return the alien to that territory pending a
proceeding under section 240.]
(3) Return to foreign territory contiguous to the
united states.--
(A) In general.--The Secretary of Homeland
Security may return to a foreign territory
contiguous to the United States any alien
arriving on land from that territory (whether
or not at a designated port of entry) pending a
proceeding under section 240 or review of a
determination under subsection
(b)(1)(B)(iii)(III).
(B) Mandatory return.--If at any time the
Secretary of Homeland Security cannot--
(i) comply with its obligations to
detain an alien as required under
clause (ii) and (iii)(IV) of subsection
(b)(1)(B) and subsection (b)(2)(A); or
(ii) remove an alien to a country
described in section 208(a)(2)(A),
the Secretary of Homeland Security shall,
without exception, including pursuant to parole
or release pursuant to section 236(a) but
excluding as expressly authorized pursuant to
section 212(d)(5), return to a foreign
territory contiguous to the United States any
alien arriving on land from that territory
(whether or not at a designated port of entry)
pending a proceeding under section 240 or
review of a determination under subsection
(b)(1)(B)(iii)(III).
(4) Enforcement by state attorneys general.--The
attorney general of a State, or other authorized State
officer, alleging a violation of the detention, return,
or removal requirements under paragraph (1), (2), or
(3) that affects such State or its residents, may bring
an action against the Secretary of Homeland Security on
behalf of the residents of the State in an appropriate
United States district court to obtain appropriate
injunctive relief.
[(3)] (5) 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 proceeding 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.
(e) Authority to Prohibit Introduction of Certain Aliens.--If
the Secretary of Homeland Security determines, in his
discretion, that the prohibition of the introduction of aliens
who are inadmissible under subparagraph (A) or (C) of section
212(a)(6) or under section 212(a)(7) at an international land
or maritime border of the United States is necessary to achieve
operational control (as defined in section 2 of the Secure
Fence Act of 2006 (8 U.S.C. 1701 note)) of such border, the
Secretary may prohibit, in whole or in part, the introduction
of such aliens at such border for such period of time as the
Secretary determines is necessary for such purpose.
* * * * * * *
Chapter 8--General Penalty Provisions
* * * * * * *
unlawful employment of aliens
Sec. 274A. (a) Making Employment of Unauthorized Aliens
Unlawful.--
(1) In general.--It is unlawful for a person or other
entity--
(A) to hire, or to recruit or refer [for a
fee], for employment in the United States an
alien knowing the alien is an unauthorized
alien (as defined in subsection (h)(3)) with
respect to such employment, or
[(B)(i) to hire for employment in the United
States an individual without complying with the
requirements of subsection (b) or (ii) if the
person or entity is an agricultural
association, agricultural employer, or farm
labor contractor (as defined in section 3 of
the Migrant and Seasonal Agricultural Worker
Protection Act), to hire, or to recruit or
refer for a fee, for employment in the United
States an individual without complying with the
requirements of subsection (b).]
(B) to hire, continue to employ, or to
recruit or refer for employment in the United
States an individual without complying with the
requirements of subsection (b).
(2) Continuing employment.--It is unlawful for a
person or other entity, [after hiring an alien for
employment in accordance with paragraph (1),] after
complying with paragraph (1), to continue to employ the
alien in the United States knowing the alien is (or has
become) an unauthorized alien with respect to such
employment.
[(3) Defense.--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.]
(3) Good faith defense.--
(A) Defense.--An employer (or person or
entity that hires, employs, recruits, or refers
(as defined in subsection (h)(5)), or is
otherwise obligated to comply with this
section) who establishes that it has complied
in good faith with the requirements of
subsection (b)--
(i) shall not be liable to a job
applicant, an employee, the Federal
Government, or a State or local
government, under Federal, State, or
local criminal or civil law for any
employment-related action taken with
respect to a job applicant or employee
in good-faith reliance on information
provided through the system established
under subsection (d); and
(ii) has established compliance with
its obligations under subparagraphs (A)
and (B) of paragraph (1) and subsection
(b) absent a showing by the Secretary
of Homeland Security, by clear and
convincing evidence, that the employer
had knowledge that an employee is an
unauthorized alien.
(B) Mitigation element.--For purposes of
subparagraph (A)(i), if an employer proves by a
preponderance of the evidence that the employer
uses a reasonable, secure, and established
technology to authenticate the identity of the
new employee, that fact shall be taken into
account for purposes of determining good faith
use of the system established under subsection
(d).
(C) Failure to seek and obtain
verification.--Subject to the effective dates
and other deadlines applicable under subsection
(b), in the case of a person or entity in the
United States that hires, or continues to
employ, an individual, or recruits or refers an
individual for employment, the following
requirements apply:
(i) Failure to seek verification.--
(I) In general.--If the
person or entity has not made
an inquiry, under the mechanism
established under subsection
(d) and in accordance with the
timeframes established under
subsection (b), seeking
verification of the identity
and work eligibility of the
individual, the defense under
subparagraph (A) shall not be
considered to apply with
respect to any employment,
except as provided in subclause
(II).
(II) Special rule for failure
of verification mechanism.--If
such a person or entity in good
faith attempts to make an
inquiry in order to qualify for
the defense under subparagraph
(A) and the verification
mechanism has registered that
not all inquiries were
responded to during the
relevant time, the person or
entity can make an inquiry
until the end of the first
subsequent working day in which
the verification mechanism
registers no nonresponses and
qualify for such defense.
(ii) Failure to obtain
verification.--If the person or entity
has made the inquiry described in
clause (i)(I) but has not received an
appropriate verification of such
identity and work eligibility under
such mechanism within the time period
specified under subsection (d)(2) after
the time the verification inquiry was
received, the defense under
subparagraph (A) shall not be
considered to apply with respect to any
employment after the end of such time
period.
(4) Use of labor through contract.--For purposes of
this section, a person or other entity who uses a
contract, subcontract, or exchange, entered into,
renegotiated, or extended after the date of the
enactment of this section, to obtain the labor of an
alien in the United States knowing that the alien is an
unauthorized alien (as defined in subsection (h)(3))
with respect to performing such labor, shall be
considered to have hired the alien for employment in
the United States in violation of paragraph (1)(A).
(5) Use of state employment agency documentation.--
For purposes of paragraphs (1)(B) and (3), a person or
entity shall be deemed to have complied with the
requirements of subsection (b) with respect to the
hiring of an individual who was referred for such
employment by a State employment agency (as defined by
the Attorney General), if the person or entity has and
retains (for the period and in the manner described in
subsection (b)(3)) appropriate documentation of such
referral by that agency, which documentation certifies
that the agency has complied with the procedures
specified in subsection (b) with respect to the
individual's referral.
(6) Treatment of documentation for certain
employees.--
(A) In general.--For purposes of this
section, 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 3 years, or, if less, the
period of time that the individual is
authorized to be employed in the United States.
(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
alien not authorized to work in the
United States, 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
alien not authorized to work in the
United States.
(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
alien not authorized to work in the
United States.
(iii) Exception.--Clause (i) shall
not apply in any prosecution under
subsection (f)(1).
(7) Application to federal government.--For purposes
of this section, the term ``entity'' includes an entity
in any branch of the Federal Government.
[(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) In general.--The person or entity must
attest, under penalty of perjury and on a form
designated or established by the Attorney
General by regulation, that it has verified
that the individual is not an unauthorized
alien by examining--
[(i) a document described in
subparagraph (B), or
[(ii) a document described in
subparagraph (C) and a document
described in subparagraph (D).
A person or entity has complied with the
requirement of this paragraph with respect to
examination of a document if the document
reasonably appears on its face to be genuine.
If an individual provides a document or
combination of documents that reasonably
appears on its face to be genuine and that is
sufficient to meet the requirements of the
first sentence of this paragraph, nothing in
this paragraph shall be construed as requiring
the person or entity to solicit the production
of any other document or as requiring the
individual to produce such another document.
[(B) Documents establishing both employment
authorization and identity.--A document
described in this subparagraph is an
individual's--
[(i) United States passport;
[(ii) resident alien card, alien
registration card, or other document
designated by the Attorney General, if
the document--
[(I) contains a photograph of
the individual and such other
personal identifying
information relating to the
individual as the Attorney
General finds, by regulation,
sufficient for purposes of this
subsection,
[(II) is evidence of
authorization of employment in
the United States, and
[(III) contains security
features to make it resistant
to tampering, counterfeiting,
and fraudulent use.
[(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); or
[(ii) 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.
[(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.
[(E) Authority to prohibit use of certain
documents.--If the Attorney General finds, by
regulation, that any document described in
subparagraph (B), (C), or (D) as establishing
employment authorization or identity does not
reliably establish such authorization or
identity or is being used fraudulently to an
unacceptable degree, the Attorney General may
prohibit or place conditions on its use for
purposes of this subsection.
[(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.
[(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) Good faith compliance.--
[(A) In general.--Except as provided in
subparagraphs (B) and (C), a person or entity
is considered to have complied with a
requirement of this subsection notwithstanding
a technical or procedural failure to meet such
requirement if there was a good faith attempt
to comply with the requirement.
[(B) Exception if failure to correct after
notice.--Subparagraph (A) shall not apply if--
[(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.
[(C) Exception for pattern or practice
violators.--Subparagraph (A) shall not apply to
a person or entity that has or is engaging in a
pattern or practice of violations of subsection
(a)(1)(A) or (a)(2).]
(b) Employment Eligibility Verification Process.--
(1) New hires, recruitment, and referral.--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 following:
(A) Attestation after examination of
documentation.--
(i) Attestation.--During the
verification period (as defined in
subparagraph (E)), the person or entity
shall attest, under penalty of perjury
and on a form, including electronic
format, designated or established by
the Secretary by regulation not later
than 6 months after the date of the
enactment of the Legal Workforce Act,
that it has verified that the
individual is not an unauthorized alien
by--
(I) obtaining from the
individual the individual's
social security account number
or United States passport
number and recording the number
on the form (if the individual
claims to have been issued such
a number), and, if the
individual does not attest to
United States nationality under
subparagraph (B), obtaining
such identification or
authorization number
established by the Department
of Homeland Security for the
alien as the Secretary of
Homeland Security may specify,
and recording such number on
the form; and
(II) examining--
(aa) a document
relating to the
individual presenting
it described in clause
(ii); or
(bb) a document
relating to the
individual presenting
it described in clause
(iii) and a document
relating to the
individual presenting
it described in clause
(iv).
(ii) Documents evidencing employment
authorization and establishing
identity.--A document described in this
subparagraph is an individual's--
(I) unexpired United States
passport or passport card;
(II) unexpired permanent
resident card that contains a
photograph;
(III) unexpired employment
authorization card that
contains a photograph;
(IV) in the case of a
nonimmigrant alien authorized
to work for a specific employer
incident to status, a foreign
passport with Form I-94 or Form
I-94A, or other documentation
as designated by the Secretary
specifying the alien's
nonimmigrant status as long as
the period of status has not
yet expired and the proposed
employment is not in conflict
with any restrictions or
limitations identified in the
documentation;
(V) passport from the
Federated States of Micronesia
(FSM) or the Republic of the
Marshall Islands (RMI) with
Form I-94 or Form I-94A, or
other documentation as
designated by the Secretary,
indicating nonimmigrant
admission under the Compact of
Free Association Between the
United States and the FSM or
RMI; or
(VI) other document
designated by the Secretary of
Homeland Security, if the
document--
(aa) contains a
photograph of the
individual and
biometric
identification data
from the individual and
such other personal
identifying information
relating to the
individual as the
Secretary of Homeland
Security finds, by
regulation, sufficient
for purposes of this
clause;
(bb) is evidence of
authorization of
employment in the
United States; and
(cc) contains
security features to
make it resistant to
tampering,
counterfeiting, and
fraudulent use.
(iii) Documents evidencing 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).
(iv) Documents establishing identity
of individual.--A document described in
this subparagraph is--
(I) an individual's unexpired
State issued driver's license
or identification card if it
contains a photograph and
information such as name, date
of birth, gender, height, eye
color, and address;
(II) an individual's
unexpired U.S. military
identification card;
(III) an individual's
unexpired Native American
tribal identification document
issued by a tribal entity
recognized by the Bureau of
Indian Affairs; or
(IV) in the case of an
individual under 18 years of
age, a parent or legal
guardian's attestation under
penalty of law as to the
identity and age of the
individual.
(v) Authority to prohibit use of
certain documents.--If the Secretary of
Homeland Security finds, by regulation,
that any document described in clause
(i), (ii), or (iii) as establishing
employment authorization or identity
does not reliably establish such
authorization or identity or is being
used fraudulently to an unacceptable
degree, the Secretary may prohibit or
place conditions on its use for
purposes of this paragraph.
(vi) Signature.--Such attestation may
be manifested by either a handwritten
or electronic signature.
(B) Individual attestation of employment
authorization.--During the ver-i-fi-ca-tion
period (as defined in subparagraph (E)), the
individual shall attest, under penalty of
perjury on the form designated or established
for purposes of subparagraph (A), that the
individual is a citizen or national of the
United States, an alien lawfully admitted for
permanent residence, or an alien who is
authorized under this Act or by the Secretary
of Homeland Security to be hired, recruited, or
referred for such employment. Such attestation
may be manifested by either a handwritten or
electronic signature. The individual shall also
provide that individual's social security
account number or United States passport number
(if the individual claims to have been issued
such a number), and, if the individual does not
attest to United States nationality under this
subparagraph, such identification or
authorization number established by the
Department of Homeland Security for the alien
as the Secretary may specify.
(C) Retention of verification form and
verification.--
(i) In general.--After completion of
such form in accordance with
subparagraphs (A) and (B), the person
or entity shall--
(I) retain a paper or
electronic version of the form
and make it available for
inspection by officers of the
Department of Homeland
Security, the Department of
Justice, or the Department of
Labor during a period beginning
on the date of the recruiting
or referral of the individual,
or, in the case of the hiring
of an individual, the date on
which the verification is
completed, and ending--
(aa) in the case of
the recruiting or
referral of an
individual, 3 years
after the date of the
recruiting or referral;
and
(bb) in the case of
the hiring of an
individual, the later
of 3 years after the
date the ver-i-fi-ca-
tion is completed or
one year after the date
the individual's
employment is
terminated; and
(II) during the verification
period (as defined in
subparagraph (E)), make an
inquiry, as provided in
subsection (d), using the
verification system to seek
verification of the identity
and employment eligibility of
an individual.
(ii) Confirmation.--
(I) Confirmation received.--
If the person or other entity
receives an appropriate
confirmation of an individual's
identity and work eligibility
under the verification system
within the time period
specified, the person or entity
shall record on the form an
appropriate code that is
provided under the system and
that indicates a final
confirmation of such identity
and work eligibility of the
individual.
(II) Tentative
nonconfirmation received.--If
the person or other entity
receives a tentative
nonconfirmation of an
individual's identity or work
eligibility under the
verification system within the
time period specified, the
person or entity shall so
inform the individual for whom
the verification is sought. If
the individual does not contest
the nonconfirmation within the
time period specified, the
nonconfirmation shall be
considered final. The person or
entity shall then record on the
form an appropriate code which
has been provided under the
system to indicate a final
nonconfirmation. If the
individual does contest the
nonconfirmation, the individual
shall utilize the process for
secondary verification provided
under subsection (d). The
nonconfirmation will remain
tentative until a final
confirmation or nonconfirmation
is provided by the ver-i-fi-ca-
tion system within the time
period specified. In no case
shall an employer terminate
employment of an individual
because of a failure of the
individual to have identity and
work eligibility confirmed
under this section until a
nonconfirmation becomes final.
Nothing in this clause shall
apply to a termination of
employment for any reason other
than because of such a failure.
In no case shall an employer
rescind the offer of employment
to an individual because of a
failure of the individual to
have identity and work
eligibility confirmed under
this subsection until a
nonconfirmation becomes final.
Nothing in this subclause shall
apply to a recission of the
offer of employment for any
reason other than because of
such a failure.
(III) Final confirmation or
nonconfirmation received.--If a
final confirmation or
nonconfirmation is provided by
the verification system
regarding an individual, the
person or entity shall record
on the form an appropriate code
that is provided under the
system and that indicates a
confirmation or nonconfirmation
of identity and work
eligibility of the individual.
(IV) Extension of time.--If
the person or other entity in
good faith attempts to make an
inquiry during the time period
specified and the verification
system has registered that not
all inquiries were received
during such time, the person or
entity may make an inquiry in
the first subsequent working
day in which the verification
system registers that it has
received all inquiries. If the
verification system cannot
receive inquiries at all times
during a day, the person or
entity merely has to assert
that the entity attempted to
make the inquiry on that day
for the previous sentence to
apply to such an inquiry, and
does not have to provide any
additional proof concerning
such inquiry.
(V) Consequences of
nonconfirmation.--
(aa) Termination or
notification of
continued employment.--
If the person or other
entity has received a
final nonconfirmation
regarding an
individual, the person
or entity may terminate
employment of the
individual (or decline
to recruit or refer the
individual). If the
person or entity does
not terminate
employment of the
individual or proceeds
to recruit or refer the
individual, the person
or entity shall notify
the Secretary of
Homeland Security of
such fact through the
verification system or
in such other manner as
the Secretary may
specify.
(bb) Failure to
notify.--If the person
or entity fails to
provide notice with
respect to an
individual as required
under item (aa), the
failure is deemed to
constitute a violation
of subsection (a)(1)(A)
with respect to that
individual.
(VI) Continued employment
after final nonconfirmation.--
If the person or other entity
continues to employ (or to
recruit or refer) an individual
after receiving final
nonconfirmation, a rebuttable
presumption is created that the
person or entity has violated
subsection (a)(1)(A).
(D) Effective dates of new procedures.--
(i) Hiring.--Except as provided in
clause (iii), the provisions of this
paragraph shall apply to a person or
other entity hiring an individual for
employment in the United States as
follows:
(I) With respect to employers
having 10,000 or more employees
in the United States on the
date of the enactment of the
Legal Workforce Act, on the
date that is 6 months after the
date of the enactment of such
Act.
(II) With respect to
employers having 500 or more
employees in the United States,
but less than 10,000 employees
in the United States, on the
date of the enactment of the
Legal Workforce Act, on the
date that is 12 months after
the date of the enactment of
such Act.
(III) With respect to
employers having 20 or more
employees in the United States,
but less than 500 employees in
the United States, on the date
of the enactment of the Legal
Workforce Act, on the date that
is 18 months after the date of
the enactment of such Act.
(IV) With respect to
employers having one or more
employees in the United States,
but less than 20 employees in
the United States, on the date
of the enactment of the Legal
Workforce Act, on the date that
is 24 months after the date of
the enactment of such Act.
(ii) Recruiting and referring.--
Except as provided in clause (iii), the
provisions of this paragraph shall
apply to a person or other entity
recruiting or referring an individual
for employment in the United States on
the date that is 12 months after the
date of the enactment of the Legal
Workforce Act.
(iii) Agricultural labor or
services.--With respect to an employee
performing agricultural labor or
services, this paragraph shall not
apply with respect to the verification
of the employee until the date that is
36 months after the date of the
enactment of the Legal Workforce Act.
For purposes of the preceding sentence,
the term ``agricultural labor or
services'' has the meaning given such
term by the Secretary of Agriculture in
regulations and includes agricultural
labor as defined in section 3121(g) of
the Internal Revenue Code of 1986,
agriculture as defined in section 3(f)
of the Fair Labor Standards Act of 1938
(29 U.S.C. 203(f)), the handling,
planting, drying, packing, packaging,
processing, freezing, or grading prior
to delivery for storage of any
agricultural or horticultural commodity
in its unmanufactured state, all
activities required for the
preparation, processing or
manufacturing of a product of
agriculture (as such term is defined in
such section 3(f)) for further
distribution, and activities similar to
all the foregoing as they relate to
fish or shellfish facilities. An
employee described in this clause shall
not be counted for purposes of clause
(i).
(iv) Extensions.--
(I) On request.--Upon request
by an employer having 50 or
fewer employees, the Secretary
shall allow a one-time 6-month
extension of the effective date
set out in this subparagraph
applicable to such employer.
Such request shall be made to
the Secretary and shall be made
prior to such effective date.
(II) Following report.--If
the study under section 715 of
the Legal Workforce Act has
been submitted in accordance
with such section, the
Secretary of Homeland Security
may extend the effective date
set out in clause (iii) on a
one-time basis for 12 months.
(v) Transition rule.--Subject to
paragraph (4), the following shall
apply to a person or other entity
hiring, recruiting, or referring an
individual for employment in the United
States until the effective date or
dates applicable under clauses (i)
through (iii):
(I) This subsection, as in
effect before the enactment of
the Legal Workforce Act.
(II) Subtitle A of title IV
of the Illegal Immigration
Reform and Immigrant
Responsibility Act of 1996 (8
U.S.C. 1324a note), as in
effect before the effective
date in section 707(c) of the
Legal Workforce Act.
(III) Any other provision of
Federal law requiring the
person or entity to participate
in the E-Verify Program
described in section 403(a) of
the Illegal Immigration Reform
and Immigrant Responsibility
Act of 1996 (8 U.S.C. 1324a
note), as in effect before the
effective date in section
707(c) of the Legal Workforce
Act, including Executive Order
13465 (8 U.S.C. 1324a note;
relating to Government
procurement).
(E) Verification period defined.--
(i) In general.--For purposes of this
paragraph:
(I) In the case of
recruitment or referral, the
term ``verification period''
means the period ending on the
date recruiting or referring
commences.
(II) In the case of hiring,
the term ``verification
period'' means the period
beginning on the date on which
an offer of employment is
extended and ending on the date
that is three business days
after the date of hire, except
as provided in clause (iii).
The offer of employment may be
conditioned in accordance with
clause (ii).
(ii) Job offer may be conditional.--A
person or other entity may offer a
prospective employee an employment
position that is conditioned on final
verification of the identity and
employment eligibility of the employee
using the procedures established under
this paragraph.
(iii) Special rule.--Not-with-stand-
ing clause (i)(II), in the case of an
alien who is authorized for employment
and who provides evidence from the
Social Security Administration that the
alien has applied for a social security
account number, the verification period
ends three business days after the
alien receives the social security
account number.
(2) Reverification for individuals with limited work
authorization.--
(A) In general.--Except as provided in
subparagraph (B), a person or entity shall make
an inquiry, as provided in subsection (d),
using the verification system to seek re-ver-i-
fi-ca-tion of the identity and employment
eligibility of all individuals with a limited
period of work authorization employed by the
person or entity during the three business days
after the date on which the employee's work
authorization expires as follows:
(i) With respect to employers having
10,000 or more employees in the United
States on the date of the enactment of
the Legal Workforce Act, beginning on
the date that is 6 months after the
date of the enactment of such Act.
(ii) With respect to employers having
500 or more employees in the United
States, but less than 10,000 employees
in the United States, on the date of
the enactment of the Legal Workforce
Act, beginning on the date that is 12
months after the date of the enactment
of such Act.
(iii) With respect to employers
having 20 or more employees in the
United States, but less than 500
employees in the United States, on the
date of the enactment of the Legal
Workforce Act, beginning on the date
that is 18 months after the date of the
enactment of such Act.
(iv) With respect to employers having
one or more employees in the United
States, but less than 20 employees in
the United States, on the date of the
enactment of the Legal Workforce Act,
beginning on the date that is 24 months
after the date of the enactment of such
Act.
(B) Agricultural labor or services.--With
respect to an employee performing agricultural
labor or services, or an employee recruited or
referred by a farm labor contractor (as defined
in section 3 of the Migrant and Seasonal
Agricultural Worker Protection Act (29 U.S.C.
1801)), subparagraph (A) shall not apply with
respect to the reverification of the employee
until the date that is 36 months after the date
of the enactment of the Legal Workforce Act.
For purposes of the preceding sentence, the
term ``agricultural labor or services'' has the
meaning given such term by the Secretary of
Agriculture in regulations and includes
agricultural labor as defined in section
3121(g) of the Internal Revenue Code of 1986,
agriculture as defined in section 3(f) of the
Fair Labor Standards Act of 1938 (29 U.S.C.
203(f)), the handling, planting, drying,
packing, packaging, processing, freezing, or
grading prior to delivery for storage of any
agricultural or horticultural commodity in its
unmanufactured state, all activities required
for the preparation, processing, or
manufacturing of a product of agriculture (as
such term is defined in such section 3(f)) for
further distribution, and activities similar to
all the foregoing as they relate to fish or
shellfish facilities. An employee described in
this subparagraph shall not be counted for
purposes of subparagraph (A).
(C) Reverification.--Paragraph (1)(C)(ii)
shall apply to reverifications pursuant to this
paragraph on the same basis as it applies to
verifications pursuant to paragraph (1), except
that employers shall--
(i) use a form designated or
established by the Secretary by
regulation for purposes of this
paragraph; and
(ii) retain a paper or electronic
version of the form and make it
available for inspection by officers of
the Department of Homeland Security,
the Department of Justice, or the
Department of Labor during the period
beginning on the date the
reverification commences and ending on
the date that is the later of 3 years
after the date of such reverification
or 1 year after the date the
individual's employment is terminated.
(3) Previously hired individuals.--
(A) On a mandatory basis for certain
employees.--
(i) In general.--Not later than the
date that is 6 months after the date of
the enactment of the Legal Workforce
Act, an employer shall make an inquiry,
as provided in subsection (d), using
the verification system to seek
verification of the identity and
employment eligibility of any
individual described in clause (ii)
employed by the employer whose
employment eligibility has not been
verified under the E-Verify Program
described in section 403(a) of the
Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (8
U.S.C. 1324a note).
(ii) Individuals described.--An
individual described in this clause is
any of the following:
(I) An employee of any unit
of a Federal, State, or local
government.
(II) An employee who requires
a Federal security clearance
working in a Federal, State, or
local government building, a
military base, a nuclear energy
site, a weapons site, or an
airport or other facility that
requires workers to carry a
Transportation Worker
Identification Credential
(TWIC).
(III) An employee assigned to
perform work in the United
States under a Federal
contract, except that this
subclause--
(aa) is not
applicable to
individuals who have a
clearance under
Homeland Security
Presidential Directive
12 (HSPD 12 clearance),
are administrative or
overhead personnel, or
are working solely on
contracts that provide
Commercial Off The
Shelf goods or services
as set forth by the
Federal Acquisition
Regulatory Council,
unless they are subject
to verification under
subclause (II); and
(bb) only applies to
contracts over the
simple acquisition
threshold as defined in
section 2.101 of title
48, Code of Federal
Regulations.
(B) On a mandatory basis for multiple users
of same social security account number.--In the
case of an employer who is required by this
subsection to use the verification system
described in subsection (d), or has elected
voluntarily to use such system, the employer
shall make inquiries to the system in
accordance with the following:
(i) The Commissioner of Social
Security shall notify annually
employees (at the employee address
listed on the Wage and Tax Statement)
who submit a social security account
number to which more than one employer
reports income and for which there is a
pattern of unusual multiple use. The
notification letter shall identify the
number of employers to which income is
being reported as well as sufficient
information notifying the employee of
the process to contact the Social
Security Administration Fraud Hotline
if the employee believes the employee's
identity may have been stolen. The
notice shall not share information
protected as private, in order to avoid
any recipient of the notice from being
in the position to further commit or
begin committing identity theft.
(ii) If the person to whom the social
security account number was issued by
the Social Security Administration has
been identified and confirmed by the
Commissioner, and indicates that the
social security account number was used
without their knowledge, the Secretary
and the Commissioner shall lock the
social security account number for
employment eligibility verification
purposes and shall notify the employers
of the individuals who wrongfully
submitted the social security account
number that the employee may not be
work eligible.
(iii) Each employer receiving such
notification of an incorrect social
security account number under clause
(ii) shall use the verification system
described in subsection (d) to check
the work eligibility status of the
applicable employee within 10 business
days of receipt of the notification.
(C) On a voluntary basis.--Subject to
paragraph (2), and subparagraphs (A) through
(C) of this paragraph, beginning on the date
that is 30 days after the date of the enactment
of the Legal Workforce Act, an employer may
make an inquiry, as provided in subsection (d),
using the verification system to seek
verification of the identity and employment
eligibility of any individual employed by the
employer. If an employer chooses voluntarily to
seek verification of any individual employed by
the employer, the employer shall seek
verification of all individuals employed at the
same geographic location or, at the option of
the employer, all individuals employed within
the same job category, as the employee with
respect to whom the employer seeks voluntarily
to use the verification system. An employer's
decision about whether or not voluntarily to
seek verification of its current workforce
under this subparagraph may not be considered
by any government agency in any proceeding,
investigation, or review provided for in this
Act.
(D) Verification.--Paragraph (1)(C)(ii) shall
apply to verifications pursuant to this
paragraph on the same basis as it applies to
verifications pursuant to paragraph (1), except
that employers shall--
(i) use a form designated or
established by the Secretary by
regulation for purposes of this
paragraph; and
(ii) retain a paper or electronic
version of the form and make it
available for inspection by officers of
the Department of Homeland Security,
the Department of Justice, or the
Department of Labor during the period
beginning on the date the verification
commences and ending on the date that
is the later of 3 years after the date
of such verification or 1 year after
the date the individual's employment is
terminated.
(4) Early compliance.--
(A) Former e-verify required users, including
federal contractors.--Notwithstanding the
deadlines in paragraphs (1) and (2), beginning
on the date of the enactment of the Legal
Workforce Act, the Secretary is authorized to
commence requiring employers required to
participate in the E-Verify Program described
in section 403(a) of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996
(8 U.S.C. 1324a note), including employers
required to participate in such program by
reason of Federal acquisition laws (and
regulations promulgated under those laws,
including the Federal Acquisition Regulation),
to commence compliance with the requirements of
this subsection (and any additional
requirements of such Federal acquisition laws
and regulation) in lieu of any requirement to
participate in the E-Verify Program.
(B) Former e-verify voluntary users and
others desiring early compliance.--
Notwithstanding the deadlines in paragraphs (1)
and (2), beginning on the date of the enactment
of the Legal Workforce Act, the Secretary shall
provide for the voluntary compliance with the
requirements of this subsection by employers
voluntarily electing to participate in the E-
Verify Program described in section 403(a) of
the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (8 U.S.C. 1324a
note) before such date, as well as by other
employers seeking voluntary early compliance.
(5) 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.
(6) Limitation on use of forms.--A form designated or
established by the Secretary of Homeland Security 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 any other
provision of Federal criminal law.
(7) Good faith compliance.--
(A) In general.--Except as otherwise provided
in this subsection, a person or entity is
considered to have complied with a requirement
of this subsection notwithstanding a technical
or procedural failure to meet such requirement
if there was a good faith attempt to comply
with the requirement.
(B) Exception if failure to correct after
notice.--Subparagraph (A) shall not apply if--
(i) the failure is not de minimus;
(ii) the Secretary of Homeland
Security has explained to the person or
entity the basis for the failure and
why it is not de minimus;
(iii) the person or entity has been
provided a period of not less than 30
calendar days (beginning after the date
of the explanation) within which to
correct the failure; and
(iv) the person or entity has not
corrected the failure voluntarily
within such period.
(C) Exception for pattern or practice
violators.--Subparagraph (A) shall not apply to
a person or entity that has engaged or is
engaging in a pattern or practice of violations
of subsection (a)(1)(A) or (a)(2).
(8) Single extension of deadlines upon
certification.--In a case in which the Secretary of
Homeland Security has certified to the Congress that
the employment eligibility verification system required
under subsection (d) will not be fully operational by
the date that is 6 months after the date of the
enactment of the Legal Workforce Act, each deadline
established under this section for an employer to make
an inquiry using such system shall be extended by 6
months. No other extension of such a deadline shall be
made except as authorized under paragraph (1)(D)(iv).
(c) No Authorization of National Identification Cards.--
Nothing in this section shall be construed to authorize,
directly or indirectly, the issuance or use of national
identification cards or the establishment of a national
identification card.
[(d) Evaluation and Changes in Employment Verification
System.--
[(1) Presidential monitoring and improvements in
system.--
[(A) Monitoring.--The President shall provide
for the monitoring and evaluation of the degree
to which the employment verification system
established under subsection (b) provides a
secure system to determine employment
eligibility in the United States and shall
examine the suitability of existing Federal and
State identification systems for use for this
purpose.
[(B) Improvements to establish secure
system.--To the extent that the system
established under subsection (b) is found not
to be a secure system to determine employment
eligibility in the United States, the President
shall, subject to paragraph (3) and taking into
account the results of any demonstration
projects conducted under paragraph (4),
implement such changes in (including additions
to) the requirements of subsection (b) as may
be necessary to establish a secure system to
determine employment eligibility in the United
States. Such changes in the system may be
implemented only if the changes conform to the
requirements of paragraph (2).
[(2) Restrictions on changes in system.--Any change
the President proposes to implement under paragraph (1)
in the verification system must be designed in a manner
so the verification system, as so changed, meets the
following requirements:
[(A) Reliable determination of identity.--The
system must be capable of reliably determining
whether--
[(i) a person with the identity
claimed by an employee or prospective
employee is eligible to work, and
[(ii) the employee or prospective
employee is claiming the identity of
another individual.
[(B) Using of counterfeit-resistant
documents.--If the system requires that a
document be presented to or examined by an
employer, the document must be in a form which
is resistant to counterfeiting and tampering.
[(C) Limited use of system.--Any personal
information utilized by the system may not be
made available to Government agencies,
employers, and other persons except to the
extent necessary to verify that an individual
is not an unauthorized alien.
[(D) Privacy of information.--The system must
protect the privacy and security of personal
information and identifiers utilized in the
system.
[(E) Limited denial of verification.--A
verification that an employee or prospective
employee is eligible to be employed in the
United States may not be withheld or revoked
under the system for any reason other than that
the employee or prospective employee is an
unauthorized alien.
[(F) Limited use for law enforcement
purposes.--The system may not be used for law
enforcement purposes, other than for
enforcement of this Act or sections 1001, 1028,
1546, and 1621 of title 18, United States Code.
[(G) Restriction on use of new documents.--If
the system requires individuals to present a
new card or other document (designed
specifically for use for this purpose) at the
time of hiring, recruitment, or referral, then
such document may not be required to be
presented for any purpose other than under this
Act (or enforcement of sections 1001, 1028,
1546, and 1621 of title 18, United States Code)
nor to be carried on one's person.
[(3) Notice to congress before implementing
changes.--
[(A) In general.--The President may not
implement any change under paragraph (1) unless
at least--
[(i) 60 days,
[(ii) one year, in the case of a
major change described in subparagraph
(D)(iii), or
[(iii) two years, in the case of a
major change described in clause (i) or
(ii) of subparagraph (D),
before the date of implementation of the
change, the President has prepared and
transmitted to the Committee on the Judiciary
of the House of Representatives and to the
Committee on the Judiciary of the Senate a
written report setting forth the proposed
change. If the President proposes to make any
change regarding social security account number
cards, the President shall transmit to the
Committee on Ways and Means of the House of
Representatives and to the Committee on Finance
of the Senate a written report setting forth
the proposed change. The President promptly
shall cause to have printed in the Federal
Register the substance of any major change
(described in subparagraph (D)) proposed and
reported to Congress.
[(B) Contents of report.--In any report under
subparagraph (A) the President shall include
recommendations for the establishment of civil
and criminal sanctions for unauthorized use or
disclosure of the information or identifiers
contained in such system.
[(C) Congressional review of major changes.--
[(i) Hearings and review.--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 any major change described in
subparagraph (D), shall hold hearings
respecting the feasibility and
desirability of implementing such a
change, and, within the two year period
before implementation, shall report to
their respective Houses findings on
whether or not such a change should be
implemented.
[(ii) Congressional action.--No major
change may be implemented unless the
Congress specifically provides, in an
appropriations or other Act, for funds
for implementation of the change.
[(D) Major changes defined.--As used in this
paragraph, the term ``major change'' means a
change which would--
[(i) require an individual to present
a new card or other document (designed
specifically for use for this purpose)
at the time of hiring, recruitment, or
referral,
[(ii) provide for a telephone
verification system under which an
employer, recruiter, or referrer must
transmit to a Federal official
information concerning the immigration
status of prospective employees and the
official transmits to the person, and
the person must record, a verification
code, or
[(iii) require any change in any card
used for accounting purposes under the
Social Security Act, including any
change requiring that the only social
security account number cards which may
be presented in order to comply with
subsection (b)(1)(C)(i) are such cards
as are in a counterfeit-resistant form
consistent with the second sentence of
section 205(c)(2)(D) of the Social
Security Act.
[(E) General revenue funding of social
security card changes.--Any costs incurred in
developing and implementing any change
described in subparagraph (D)(iii) for purposes
of this subsection shall not be paid for out of
any trust fund established under the Social
Security Act.
[(4) Demonstration projects.--
[(A) Authority.--The President may undertake
demonstration projects (consistent with
paragraph (2)) of different changes in the
requirements of subsection (b). No such project
may extend over a period of longer than five
years.
[(B) Reports on projects.--The President
shall report to the Congress on the results of
demonstration projects conducted under this
paragraph.]
(d) Employment Eligibility Verification System.--
(1) In general.--Patterned on the employment
eligibility confirmation system established under
section 404 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a
note), the Secretary of Homeland Security shall
establish and administer a verification system through
which the Secretary (or a designee of the Secretary,
which may be a nongovernmental entity)--
(A) responds to inquiries made by persons at
any time through a toll-free electronic media
concerning an individual's identity and whether
the individual is authorized to be employed;
and
(B) maintains records of the inquiries that
were made, of verifications provided (or not
provided), and of the codes provided to
inquirers as evidence of their compliance with
their obligations under this section.
(2) Initial response.--The verification system shall
provide confirmation or a tentative nonconfirmation of
an individual's identity and employment eligibility
within 3 working days of the initial inquiry. If
providing confirmation or tentative nonconfirmation,
the verification system shall provide an appropriate
code indicating such confirmation or such
nonconfirmation.
(3) Secondary confirmation process in case of
tentative nonconfirmation.--In cases of tentative
nonconfirmation, the Secretary shall specify, in
consultation with the Commissioner of Social Security,
an available secondary verification process to confirm
the validity of information provided and to provide a
final confirmation or nonconfirmation not later than 10
working days after the date on which the notice of the
tentative nonconfirmation is received by the employee.
The Secretary, in consultation with the Commissioner,
may extend this deadline once on a case-by-case basis
for a period of 10 working days, and if the time is
extended, shall document such extension within the
verification system. The Secretary, in consultation
with the Commissioner, shall notify the employee and
employer of such extension. The Secretary, in
consultation with the Commissioner, shall create a
standard process of such extension and notification and
shall make a description of such process available to
the public. When final confirmation or nonconfirmation
is provided, the verification system shall provide an
appropriate code indicating such confirmation or
nonconfirmation.
(4) Design and operation of system.--The verification
system shall be designed and operated--
(A) to maximize its reliability and ease of
use by persons and other entities consistent
with insulating and protecting the privacy and
security of the underlying information;
(B) to respond to all inquiries made by such
persons and entities on whether individuals are
authorized to be employed and to register all
times when such inquiries are not received;
(C) with appropriate administrative,
technical, and physical safeguards to prevent
unauthorized disclosure of personal
information;
(D) to have reasonable safeguards against the
system's resulting in unlawful discriminatory
practices based on national origin or
citizenship status, including--
(i) the selective or unauthorized use
of the system to verify eligibility; or
(ii) the exclusion of certain
individuals from consideration for
employment as a result of a perceived
likelihood that additional verification
will be required, beyond what is
required for most job applicants;
(E) to maximize the prevention of identity
theft use in the system; and
(F) to limit the subjects of verification to
the following individuals:
(i) Individuals hired, referred, or
recruited, in accordance with paragraph
(1) or (4) of subsection (b).
(ii) Employees and prospective
employees, in accordance with paragraph
(1), (2), (3), or (4) of subsection
(b).
(iii) Individuals seeking to confirm
their own employment eligibility on a
voluntary basis.
(5) Responsibilities of commissioner of social
security.--As part of the verification system, the
Commissioner of Social Security, in consultation with
the Secretary of Homeland Security (and any designee of
the Secretary selected to establish and administer the
verification system), shall establish a reliable,
secure method, which, within the time periods specified
under paragraphs (2) and (3), compares the name and
social security account number provided in an inquiry
against such information maintained by the Commissioner
in order to validate (or not validate) the information
provided regarding an individual whose identity and
employment eligibility must be confirmed, the
correspondence of the name and number, and whether the
individual has presented a social security account
number that is not valid for employment. The
Commissioner shall not disclose or release social
security information (other than such confirmation or
nonconfirmation) under the verification system except
as provided for in this section or section 205(c)(2)(I)
of the Social Security Act.
(6) Responsibilities of secretary of homeland
security.--As part of the verification system, the
Secretary of Homeland Security (in consultation with
any designee of the Secretary selected to establish and
administer the verification system), shall establish a
reliable, secure method, which, within the time periods
specified under paragraphs (2) and (3), compares the
name and alien identification or authorization number
(or any other information as determined relevant by the
Secretary) which are provided in an inquiry against
such information maintained or accessed by the
Secretary in order to validate (or not validate) the
information provided, the correspondence of the name
and number, whether the alien is authorized to be
employed in the United States, or to the extent that
the Secretary determines to be feasible and
appropriate, whether the records available to the
Secretary verify the identity or status of a national
of the United States.
(7) Updating information.--The Commissioner of Social
Security and the Secretary of Homeland Security shall
update their information in a manner that promotes the
maximum accuracy and shall provide a process for the
prompt correction of erroneous information, including
instances in which it is brought to their attention in
the secondary verification process described in
paragraph (3).
(8) Limitation on use of the verification system and
any related systems.--
(A) No national identification card.--Nothing
in this section shall be construed to
authorize, directly or indirectly, the issuance
or use of national identification cards or the
establishment of a national identification
card.
(B) Critical infrastructure.--The Secretary
may authorize or direct any person or entity
responsible for granting access to, protecting,
securing, operating, administering, or
regulating part of the critical infrastructure
(as defined in section 1016(e) of the Critical
Infrastructure Protection Act of 2001 (42
U.S.C. 5195c(e))) to use the verification
system to the extent the Secretary determines
that such use will assist in the protection of
the critical infrastructure.
(9) Remedies.--If an individual alleges that the
individual would not have been dismissed from a job or
would have been hired for a job but for an error of the
verification mechanism, the individual may seek
compensation only through the mechanism of the Federal
Tort Claims Act, and injunctive relief to correct such
error. No class action may be brought under this
paragraph.
(e) Compliance.--
(1) Complaints and investigations.--The [Attorney
General] Secretary of Homeland Security 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] Secretary of Homeland
Security determines to be appropriate, and
(D) for the designation in the [Service]
Department of Homeland Security of a unit which
has, as its primary duty, the prosecution of
cases of violations of subsection (a) or (g)(1)
under this subsection.
(2) Authority in investigations.--In conducting
investigations and hearings under this subsection--
(A) immigration officers and administrative
law judges shall have reasonable access to
examine evidence of any person or entity being
investigated,
(B) administrative law judges, may, if
necessary, compel by subpoena the attendance of
witnesses and the production of evidence at any
designated place or hearing, and
(C) immigration officers designated by the
Commissioner may compel by subpoena the
attendance of witnesses and the production of
evidence at any designated place prior to the
filing of a complaint in a case under paragraph
(2).
In case of contumacy or refusal to obey a subpoena
lawfully issued under this paragraph and upon
application of the Attorney General, an appropriate
district court of the United States may issue an order
requiring compliance with such subpoena and any failure
to obey such order may be punished by such court as a
contempt thereof.
(3) Hearing.--
(A) In general.--Before imposing an order
described in paragraph (4), (5), or (6) against
a person or entity under this subsection for a
violation of subsection (a) or (g)(1), the
Attorney General shall provide the person or
entity with notice and, upon request made
within a reasonable time (of not less than 30
days, as established by the Attorney General)
of the date of the notice, a hearing respecting
the violation.
(B) Conduct of hearing.--Any hearing so
requested shall be conducted before an
administrative law judge. The hearing shall be
conducted in accordance with the requirements
of section 554 of title 5, United States Code.
The hearing shall be held at the nearest
practicable place to the place where the person
or entity resides or of the place where the
alleged violation occurred. If no hearing is so
requested, the Attorney General's imposition of
the order shall constitute a final and
unappealable order.
(C) Issuance of orders.--If the
administrative law judge determines, upon the
preponderance of the evidence received, that a
person or entity named in the complaint has
violated subsection (a) or (g)(1), the
administrative law judge shall state his
findings of fact and issue and cause to be
served on such person or entity an order
described in paragraph (4), (5), or (6).
(4) Cease and desist order with civil money penalty
for hiring, recruiting, and referral violations.--With
respect to a violation of subsection (a)(1)(A) or
(a)(2), the order under this subsection--
(A) shall require the person or entity to
cease and desist from such violations and to
pay a civil penalty in an amount, subject to
paragraph (10), of--
(i) [not less than $250 and not more
than $2,000] not less than $2,500 and
not more than $5,000 for each
unauthorized alien with respect to whom
a violation of either such subsection
occurred,
(ii) [not less than $2,000 and not
more than $5,000] not less than $5,000
and not more than $10,000 for each such
alien in the case of a person or entity
previously subject to one order under
this paragraph, or
(iii) [not less than $3,000 and not
more than $10,000] not less than
$10,000 and not more than $25,000 for
each such alien in the case of a person
or entity previously subject to more
than one order under this paragraph;
and
[(B) may require the person or entity--
[(i) to comply with the requirements
of subsection (b) (or subsection (d) if
applicable) with respect to individuals
hired (or recruited or referred for
employment for a fee) during a period
of up to three years, and
[(ii) to take such other remedial
action as is appropriate.]
(B)may require the person or entity to take
such other remedial action as is appropriate.
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.
(5) Order for civil money penalty for [paperwork]
violations.--With respect to a violation of subsection
(a)(1)(B), the order under this subsection shall
require the person or entity to pay a civil penalty in
an amount, subject to paragraphs (10) through (12), of
not less than [$100] $1,000 and not more than [$1,000]
$25,000 for each individual with respect to whom such
violation occurred. In determining the amount of the
penalty, due consideration shall be given to the size
of the business of the employer being charged, the good
faith of the employer, the seriousness of the
violation, whether or not the individual was an
unauthorized alien, and the history of previous
violations. Failure by a person or entity to utilize
the employment eligibility verification system as
required by law, or providing information to the system
that the person or entity knows or reasonably believes
to be false, shall be treated as a violation of
subsection (a)(1)(A).
(6) Order for prohibited indemnity bonds.--With
respect to a violation of subsection (g)(1), the order
under this subsection may provide for the remedy
described in subsection (g)(2).
(7) Administrative appellate review.--The decision
and order of an administrative law judge shall become
the final agency decision and order of the Attorney
General unless either (A) within 30 days, an official
delegated by regulation to exercise review authority
over the decision and order modifies or vacates the
decision and order, or (B) within 30 days of the date
of such a modification or vacation (or within 60 days
of the date of decision and order of an administrative
law judge if not so modified or vacated) the decision
and order is referred to the Attorney General pursuant
to regulations, in which case the decision and order of
the Attorney General shall become the final agency
decision and order under this subsection. The Attorney
General may not delegate the Attorney General's
authority under this paragraph to any entity which has
review authority over immigration-related matters.
(8) Judicial review.--A person or entity adversely
affected by a final order respecting an assessment may,
within 45 days after the date the final order is
issued, file a petition in the Court of Appeals for the
appropriate circuit for review of the order.
(9) Enforcement of orders.--If a person or entity
fails to comply with a final order issued under this
subsection against the person or entity, the Attorney
General shall file a suit to seek compliance with the
order in any appropriate district court of the United
States. In any such suit, the validity and
appropriateness of the final order shall not be subject
to review.
(10) Exemption from penalty for good faith
violation.--In the case of imposition of a civil
penalty under paragraph (4)(A) with respect to a
violation of subsection (a)(1)(A) or (a)(2) for hiring
or continuation of employment or recruitment or
referral by person or entity and in the case of
imposition of a civil penalty under paragraph (5) for a
violation of subsection (a)(1)(B) for hiring or
recruitment or referral by a person or entity, the
penalty otherwise imposed may be waived or reduced if
the violator establishes that the violator acted in
good faith.
(11) Mitigation element.--For purposes of paragraph
(4), the size of the business shall be taken into
account when assessing the level of civil money
penalty.
(12) Authority to debar employers for certain
violations.--
(A) In general.--If a person or entity is
determined by the Secretary of Homeland
Security to be a repeat violator of paragraph
(1)(A) or (2) of subsection (a), or is
convicted of a crime under this section, such
person or entity may be considered for
debarment from the receipt of Federal
contracts, grants, or cooperative agreements in
accordance with the debarment standards and
pursuant to the debarment procedures set forth
in the Federal Acquisition Regulation.
(B) Does not have contract, grant,
agreement.--If the Secretary of Homeland
Security or the Attorney General wishes to have
a person or entity considered for debarment in
accordance with this paragraph, and such a
person or entity does not hold a Federal
contract, grant, or cooperative agreement, the
Secretary or Attorney General shall refer the
matter to the Administrator of General Services
to determine whether to list the person or
entity on the List of Parties Excluded from
Federal Procurement, and if so, for what
duration and under what scope.
(C) Has contract, grant, agreement.--If the
Secretary of Homeland Security or the Attorney
General wishes to have a person or entity
considered for debarment in accordance with
this paragraph, and such person or entity holds
a Federal contract, grant, or cooperative
agreement, the Secretary or Attorney General
shall advise all agencies or departments
holding a contract, grant, or cooperative
agreement with the person or entity of the
Government's interest in having the person or
entity considered for debarment, and after
soliciting and considering the views of all
such agencies and departments, the Secretary or
Attorney General may refer the matter to any
appropriate lead agency to determine whether to
list the person or entity on the List of
Parties Excluded from Federal Procurement, and
if so, for what duration and under what scope.
(D) Review.--Any decision to debar a person
or entity in accordance with this paragraph
shall be reviewable pursuant to part 9.4 of the
Federal Acquisition Regulation.
(13) Office for state and local government
complaints.--The Secretary of Homeland Security shall
establish an office--
(A) to which State and local government
agencies may submit information indicating
potential violations of subsection (a), (b), or
(g)(1) that were generated in the normal course
of law enforcement or the normal course of
other official activities in the State or
locality;
(B) that is required to indicate to the
complaining State or local agency within five
business days of the filing of such a complaint
by identifying whether the Secretary will
further investigate the information provided;
(C) that is required to investigate those
complaints filed by State or local government
agencies that, on their face, have a
substantial probability of validity;
(D) that is required to notify the
complaining State or local agency of the
results of any such investigation conducted;
and
(E) that is required to report to the
Congress annually the number of complaints
received under this paragraph, the States and
localities that filed such complaints, and the
resolution of the complaints investigated by
the Secretary.
(f) Criminal Penalties and Injunctions for Pattern or
Practice Violations.--
[(1) Criminal penalty.--Any person or entity which
engages in a pattern or practice of violations of
subsection (a)(1)(A) or (a)(2) shall be fined not more
than $3,000 for each unauthorized alien with respect to
whom such a violation occurs, imprisoned for not more
than six months for the entire pattern or practice, or
both, notwithstanding the provisions of any other
Federal law relating to fine levels.]
(1) Criminal penalty.--Any person or entity which
engages in a pattern or practice of violations of
subsection (a) (1) or (2) shall be fined not more than
$5,000 for each unauthorized alien with respect to
which such a violation occurs, imprisoned for not more
than 18 months, or both, notwithstanding the provisions
of any other Federal law relating to fine levels.
(2) Enjoining of pattern or practice violations.--
Whenever the Attorney General has reasonable cause to
believe that a person or entity is engaged in a pattern
or practice of employment, recruitment, or referral in
violation of paragraph (1)(A) or (2) of subsection (a),
the Attorney General may bring a civil action in the
appropriate district court of the United States
requesting such relief, including a permanent or
temporary injunction, restraining order, or other order
against the person or entity, as the Attorney General
deems necessary.
(g) Prohibition of Indemnity Bonds.--
(1) Prohibition.--It is unlawful for a person or
other entity, in the hiring, recruiting, or referring
for employment of any individual, to require the
individual to post a bond or security, to pay or agree
to pay an amount, or otherwise to provide a financial
guarantee or indemnity, against any potential liability
arising under this section relating to such hiring,
recruiting, or referring of the individual.
(2) Civil penalty.--Any person or entity which is
determined, after notice and opportunity for an
administrative hearing under subsection (e), to have
violated paragraph (1) shall be subject to a civil
penalty of $1,000 for each violation and to an
administrative order requiring the return of any
amounts received in violation of such paragraph to the
employee or, if the employee cannot be located, to the
general fund of the Treasury.
(h) Miscellaneous Provisions.--
(1) Documentation.--In providing documentation or
endorsement of authorization of aliens (other than
aliens lawfully admitted for permanent residence)
authorized to be employed in the United States, the
Attorney General shall provide that any limitations
with respect to the period or type of employment or
employer shall be conspicuously stated on the
documentation or endorsement.
[(2) Preemption.--The provisions of this section
preempt any State or local law imposing civil or
criminal sanctions (other than through licensing and
similar laws) upon those who employ, or recruit or
refer for a fee for employment, unauthorized aliens.]
(2) Preemption.--
(A) Single, national policy.--The provisions
of this section preempt any State or local law,
ordinance, policy, or rule, including any
criminal or civil fine or penalty structure,
insofar as they may now or hereafter relate to
the hiring, continued employment, or status
verification for employment eligibility
purposes, of unauthorized aliens.
(B) State enforcement of federal law.--
(i) Business licensing.--A State,
locality, municipality, or political
subdivision may exercise its authority
over business licensing and similar
laws as a penalty for failure to use
the verification system described in
subsection (d) to verify employment
eligibility when and as required under
subsection (b).
(ii) General rules.--A State, at its
own cost, may enforce the provisions of
this section, but only insofar as such
State follows the Federal regulations
implementing this section, applies the
Federal penalty structure set out in
this section, and complies with all
Federal rules and guidance concerning
implementation of this section. Such
State may collect any fines assessed
under this section. An employer may not
be subject to enforcement, including
audit and investigation, by both a
Federal agency and a State for the same
violation under this section. Whichever
entity, the Federal agency or the
State, is first to initiate the
enforcement action, has the right of
first refusal to proceed with the
enforcement action. The Secretary must
provide copies of all guidance,
training, and field instructions
provided to Federal officials
implementing the provisions of this
section to each State.
(3) Definition of unauthorized alien.--As used in
this section, the term ``unauthorized alien'' means,
with respect to the employment of an alien at a
particular time, that the alien is not at that time
either (A) an alien lawfully admitted for permanent
residence, or (B) authorized to be so employed by this
Act or by the Attorney General.
(4) Definition of date of hire.--As used in this
section, the term ``date of hire'' means the date of
actual commencement of employment for wages or other
remuneration, unless otherwise specified.
(5) Definition of recruit or refer.--As used in this
section, the term ``refer'' means the act of sending or
directing a person who is in the United States or
transmitting documentation or information to another,
directly or indirectly, with the intent of obtaining
employment in the United States for such person. Only
persons or entities referring for remuneration (whether
on a retainer or contingency basis) are included in the
definition, except that union hiring halls that refer
union members or nonunion individuals who pay union
membership dues are included in the definition whether
or not they receive remuneration, as are labor service
entities or labor service agencies, whether public,
private, for-profit, or nonprofit, that refer,
dispatch, or otherwise facilitate the hiring of
laborers for any period of time by a third party. As
used in this section, the term ``recruit'' means the
act of soliciting a person who is in the United States,
directly or indirectly, and referring the person to
another with the intent of obtaining employment for
that person. Only persons or entities referring for
remuneration (whether on a retainer or contingency
basis) are included in the definition, except that
union hiring halls that refer union members or nonunion
individuals who pay union membership dues are included
in this definition whether or not they receive
remuneration, as are labor service entities or labor
service agencies, whether public, private, for-profit,
or nonprofit that recruit, dispatch, or otherwise
facilitate the hiring of laborers for any period of
time by a third party.
* * * * * * *
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 or if the alien was
previously convicted of an offense under subsection (e)(2)(A),
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] not less
than $500 and not more than $1,000 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 or subsection
(e)(2)(B).
Civil penalties under this subsection are in addition to, and
not in lieu of, any criminal or other civil penalties that may
be imposed.
(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.
(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.
(e) Visa Overstays.--
(1) In general.--An alien who was admitted as a
nonimmigrant has violated this paragraph if the alien,
for an aggregate of 10 days or more, has failed--
(A) to maintain the nonimmigrant status in
which the alien was admitted, or to which it
was changed under section 248, including
complying with the period of stay authorized by
the Secretary of Homeland Security in
connection with such status; or
(B) to comply otherwise with the conditions
of such nonimmigrant status.
(2) Penalties.--An alien who has violated paragraph
(1)--
(A) shall--
(i) for the first commission of such
a violation, be fined under title 18,
United States Code, or imprisoned not
more than 6 months, or both; and
(ii) for a subsequent commission of
such a violation, or if the alien was
previously convicted of an offense
under subsection (a), be fined under
such title 18, or imprisoned not more
than 2 years, or both; and
(B) in addition to, and not in lieu of, any
penalty under subparagraph (A) and any other
criminal or civil penalties that may be
imposed, shall be subject to a civil penalty
of--
(i) not less than $500 and not more
than $1,000 for each violation; or
(ii) twice the amount specified in
clause (i), in the case of an alien who
has been previously subject to a civil
penalty under this subparagraph or
subsection (b).
* * * * * * *
----------
WILLIAM WILBERFORCE TRAFFICKING VICTIMS PROTECTION REAUTHORIZATION ACT
OF 2008
* * * * * * *
TITLE II--COMBATING TRAFFICKING IN PERSONS IN THE UNITED STATES
* * * * * * *
Subtitle D--Activities of the United States Government
* * * * * * *
SEC. 235. ENHANCING EFFORTS TO COMBAT THE TRAFFICKING OF CHILDREN.
(a) Combating Child Trafficking at the Border and Ports of
Entry of the United States.--
(1) Policies and procedures.--In order to enhance the
efforts of the United States to prevent trafficking in
persons, the Secretary of Homeland Security, in
conjunction with the Secretary of State, the Attorney
General, and the Secretary of Health and Human
Services, shall develop policies and procedures to
ensure that unaccompanied alien children in the United
States are safely repatriated to their country of
nationality or of last habitual residence.
(2) [Special rules for children from contiguous
countries.--] Rules for unaccompanied alien children._
(A) Determinations.--Any unaccompanied alien
child [who is a national or habitual resident
of a country that is contiguous with the United
States] shall be treated in accordance with
subparagraph (B), if the Secretary of Homeland
Security determines, on a case-by-case basis,
that--
(i) such child has not been a victim
of a severe form of trafficking in
persons, and there is no credible
evidence that such child is at risk of
being trafficked upon return to the
child's country of nationality or of
last habitual residence; and
(ii) such child does not have a fear
of returning to the child's country of
nationality or of last habitual
residence owing to a credible fear of
persecution[; and].
[(iii) the child is able to make an
independent decision to withdraw the
child's application for admission to
the United States.]
(B) Return.--An immigration officer who finds
an unaccompanied alien child described in
subparagraph (A) at a land border or port of
entry of the United States and determines that
such child is inadmissible under the
Immigration and Nationality Act [(8 U.S.C. 1101
et seq.) may--] (8 U.S.C. 1101 et seq.)--
(i) may permit such child to withdraw
the child's application for admission
pursuant to section 235(a)(4) of the
Immigration and Nationality Act (8
U.S.C. 1225(a)(4)); and
(ii) shall return such child to the
child's country of nationality or
country of last habitual residence.
(C) Contiguous country agreements.--The
Secretary of State shall negotiate agreements
between the United States and countries
contiguous to the United States with respect to
the repatriation of children. Such agreements
shall be designed to protect children from
severe forms of trafficking in persons, and
shall, at a minimum, provide that--
(i) no child shall be returned to the
child's country of nationality or of
last habitual residence unless returned
to appropriate employees or officials,
including child welfare officials where
available, of the accepting country's
government;
(ii) no child shall be returned to
the child's country of nationality or
of last habitual residence outside of
reasonable business hours; and
(iii) border personnel of the
countries that are parties to such
agreements are trained in the terms of
such agreements.
(3) Rule for other children.--The custody of
unaccompanied alien children not described in paragraph
(2)(A) who are apprehended at the border of the United
States or at a United States port of entry shall be
treated in accordance with subsection (b).
(4) Screening.--Within 48 hours of the apprehension
of a child who is believed to be described in paragraph
(2)(A), but in any event prior to returning such child
to the child's country of nationality or of last
habitual residence, the child shall be screened to
determine whether the child meets the criteria listed
in paragraph (2)(A). If the child does not meet such
criteria, or if no determination can be made within 48
hours of apprehension, the child shall immediately be
transferred to the Secretary of Health and Human
Services and treated in accordance with subsection (b).
Nothing in this paragraph may be construed to preclude
an earlier transfer of the child.
(5) Ensuring the safe repatriation of children.--
(A) Repatriation pilot program.--To protect
children from trafficking and exploitation, the
Secretary of State shall create a pilot
program, in conjunction with the Secretary of
Health and Human Services and the Secretary of
Homeland Security, nongovernmental
organizations, and other national and
international agencies and experts, to develop
and implement best practices to ensure the safe
and sustainable repatriation and reintegration
of unaccompanied alien children into their
country of nationality or of last habitual
residence, including placement with their
families, legal guardians, or other sponsoring
agencies.
(B) Assessment of country conditions.--The
Secretary of Homeland Security shall consult
the Department of State's Country Reports on
Human Rights Practices and the Trafficking in
Persons Report in assessing whether to
repatriate an unaccompanied alien child to a
particular country.
(C) Report on repatriation of unaccompanied
alien children.--Not later than 18 months after
the date of the enactment of this Act, and
annually thereafter, the Secretary of State and
the Secretary of Health and Human Services,
with assistance from the Secretary of Homeland
Security, shall submit a report to the
Committee on the Judiciary of the Senate and
the Committee on the Judiciary of the House of
Representatives on efforts to improve
repatriation programs for unaccompanied alien
children. Such report shall include--
(i) the number of unaccompanied alien
children ordered removed and the number
of such children actually removed from
the United States;
(ii) a statement of the
nationalities, ages, and gender of such
children;
(iii) a description of the policies
and procedures used to effect the
removal of such children from the
United States and the steps taken to
ensure that such children were safely
and humanely repatriated to their
country of nationality or of last
habitual residence, including a
description of the repatriation pilot
program created pursuant to
subparagraph (A);
(iv) a description of the type of
immigration relief sought and denied to
such children;
(v) any information gathered in
assessments of country and local
conditions pursuant to paragraph (2);
and
(vi) statistical information and
other data on unaccompanied alien
children as provided for in section
462(b)(1)(J) of the Homeland Security
Act of 2002 (6 U.S.C. 279(b)(1)(J)).
(D) Placement in removal proceedings.--Any
unaccompanied alien child sought to be removed
by the Department of Homeland Security[, except
for an unaccompanied alien child from a
contiguous country subject to exceptions under
subsection (a)(2),] who does not meet the
criteria listed in paragraph (2)(A) shall be--
(i) placed in removal proceedings
under section 240 of the Immigration
and Nationality Act (8 U.S.C. 1229a),
which shall include a hearing before an
immigration judge not later than 14
days after being screened under
paragraph (4);
(ii) eligible for relief under
section 240B of such Act (8 U.S.C.
1229c) at no cost to the child; and
(iii) provided access to counsel in
accordance with subsection (c)(5).
(b) Combating Child Trafficking and Exploitation in the
United States.--
(1) Care and custody of unaccompanied alien
children.--Consistent with section 462 of the Homeland
Security Act of 2002 (6 U.S.C. 279), and except as
otherwise provided under subsection (a), the care and
custody of all unaccompanied alien children, including
responsibility for their detention, where appropriate,
shall be the responsibility of the Secretary of Health
and Human Services.
(2) Notification.--Each department or agency of the
Federal Government shall notify the Department of
Health and Human services within 48 hours upon--
(A) the apprehension or discovery of an
unaccompanied alien child believed not to meet
the criteria listed in subsection (a)(2)(A); or
(B) any claim or suspicion that an alien in
the custody of such department or agency is
under 18 years of age and does not meet the
criteria listed in subsection (a)(2)(A).
(3) Transfers of unaccompanied alien children.--
Except in the case of exceptional circumstances, any
department or agency of the Federal Government that has
[an unaccompanied alien child in custody shall transfer
the custody of such child to the Secretary of Health
and Human Services not later than 72 hours after
determining that such child is an unaccompanied alien
child.] an unaccompanied alien child in custody--
(A) in the case of a child who does not meet
the criteria listed in subsection (a)(2)(A),
shall transfer the custody of such child to the
Secretary of Health and Human Services not
later than 30 days after determining that such
child is an unaccompanied alien child who does
not meet such criteria; or
(B) in the case of a child who meets the
criteria listed in subsection (a)(2)(A), may
transfer the custody of such child to the
Secretary of Health and Human Services after
determining that such child is an unaccompanied
alien child who meets such criteria.
(4) Age determinations.--The Secretary of Health and
Human Services, in consultation with the Secretary of
Homeland Security, shall develop procedures to make a
prompt determination of the age of an alien, which
shall be used by the Secretary of Homeland Security and
the Secretary of Health and Human Services for children
in their respective custody. At a minimum, these
procedures shall take into account multiple forms of
evidence, including the non-exclusive use of
radiographs, to determine the age of the unaccompanied
alien.
(c) Providing Safe and Secure Placements for Children.--
(1) Policies and programs.--The Secretary of Health
and Human Services, Secretary of Homeland Security,
Attorney General, and Secretary of State shall
establish policies and programs to ensure that
unaccompanied alien children in the United States are
protected from traffickers and other persons seeking to
victimize or otherwise engage such children in
criminal, harmful, or exploitative activity, including
policies and programs reflecting best practices in
witness security programs.
(2) Safe and secure placements.--
(A) Minors in department of health and human
services custody.--Subject to section 462(b)(2)
of the Homeland Security Act of 2002 (6 U.S.C.
279(b)(2)), an unaccompanied alien child in the
custody of the Secretary of Health and Human
Services shall be promptly placed in the least
restrictive setting that is in the best
interest of the child. In making such
placements, the Secretary may consider danger
to self, danger to the community, and risk of
flight. Placement of child trafficking victims
may include placement in an Unaccompanied
Refugee Minor program, pursuant to section
412(d) of the Immigration and Nationality Act
(8 U.S.C. 1522(d)), if a suitable family member
is not available to provide care. A child shall
not be placed in a secure facility absent a
determination that the child poses a danger to
self or others or has been charged with having
committed a criminal offense. The placement of
a child in a secure facility shall be reviewed,
at a minimum, on a monthly basis, in accordance
with procedures prescribed by the Secretary, to
determine if such placement remains warranted.
(B) Aliens transferred from department of
health and human services to department of
homeland security custody.--If a minor
described in subparagraph (A) reaches 18 years
of age and is transferred to the custody of the
Secretary of Homeland Security, the Secretary
shall consider placement in the least
restrictive setting available after taking into
account the alien's danger to self, danger to
the community, and risk of flight. Such aliens
shall be eligible to participate in alternative
to detention programs, utilizing a continuum of
alternatives based on the alien's need for
supervision, which may include placement of the
alien with an individual or an organizational
sponsor, or in a supervised group home.
(3) Safety and suitability assessments.--
(A) In general.--Subject to the requirements
of subparagraph (B), an unaccompanied alien
child may not be placed with a person or entity
unless the Secretary of Health and Human
Services makes a determination that the
proposed custodian is capable of providing for
the child's physical and mental well-being.
Such determination shall, at a minimum, include
verification of the custodian's identity and
relationship to the child, if any, as well as
an independent finding that the individual has
not engaged in any activity that would indicate
a potential risk to the child.
(B) Home studies.--Before placing the child
with an individual, the Secretary of Health and
Human Services shall determine whether a home
study is first necessary. A home study shall be
conducted for a child who is a victim of a
severe form of trafficking in persons, a
special needs child with a disability (as
defined in section 3 of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12102(2))),
a child who has been a victim of physical or
sexual abuse under circumstances that indicate
that the child's health or welfare has been
significantly harmed or threatened, or a child
whose proposed sponsor clearly presents a risk
of abuse, maltreatment, exploitation, or
trafficking to the child based on all available
objective evidence. The Secretary of Health and
Human Services shall conduct follow-up
services, during the pendency of removal
proceedings, on children for whom a home study
was conducted and is authorized to conduct
follow-up services in cases involving children
with mental health or other needs who could
benefit from ongoing assistance from a social
welfare agency.
(C) Access to information.--Not later than 2
weeks after receiving a request from the
Secretary of Health and Human Services, the
Secretary of Homeland Security shall provide
information necessary to conduct suitability
assessments from appropriate Federal, State,
and local law enforcement and immigration
databases.
(D) Information about individuals with whom
children are placed.--
(i) Information to be provided to
homeland security.--Before placing a
child with an individual, the Secretary
of Health and Human Services shall
provide to the Secretary of Homeland
Security, regarding the individual with
whom the child will be placed,
information on--
(I) the name of the
individual;
(II) the social security
number of the individual;
(III) the date of birth of
the individual;
(IV) the location of the
individual's residence where
the child will be placed;
(V) the immigration status of
the individual, if known; and
(VI) contact information for
the individual.
(ii) Activities of the secretary of
homeland security.--Not later than 30
days after receiving the information
listed in clause (i), the Secretary of
Homeland Security, upon determining
that an individual with whom a child is
placed is unlawfully present in the
United States and not in removal
proceedings pursuant to chapter 4 of
title II of the Immigration and
Nationality Act (8 U.S.C. 1221 et
seq.), shall initiate such removal
proceedings.
(4) Legal orientation presentations.--The Secretary
of Health and Human Services shall cooperate with the
Executive Office for Immigration Review to ensure that
custodians receive legal orientation presentations
provided through the Legal Orientation Program
administered by the Executive Office for Immigration
Review. At a minimum, such presentations shall address
the custodian's responsibility to attempt to ensure the
child's appearance at all immigration proceedings and
to protect the child from mistreatment, exploitation,
and trafficking.
(5) Access to counsel.--The Secretary of Health and
Human Services shall ensure, to the greatest extent
practicable (at no expense to the Government) and
consistent with section 292 of the Immigration and
Nationality Act (8 U.S.C. 1362), that all unaccompanied
alien children who are or have been in the custody of
the Secretary or the Secretary of Homeland Security,
and who are not described in subsection (a)(2)(A),
[have counsel to represent them] have access to counsel
to represent them in legal proceedings or matters and
protect them from mistreatment, exploitation, and
trafficking. To the greatest extent practicable, the
Secretary of Health and Human Services shall make every
effort to utilize the services of pro bono counsel who
agree to provide representation to such children
without charge.
(6) Child advocates.--
(A) In general.--The Secretary of Health and
Human Services is authorized to appoint
independent child advocates for child
trafficking victims and other vulnerable
unaccompanied alien children. A child advocate
shall be provided access to materials necessary
to effectively advocate for the best interest
of the child. The child advocate shall not be
compelled to testify or provide evidence in any
proceeding concerning any information or
opinion received from the child in the course
of serving as a child advocate. The child
advocate shall be presumed to be acting in good
faith and be immune from civil liability for
lawful conduct of duties as described in this
provision.
(B) Appointment of child advocates.--
(i) Initial sites.--Not later than 2
years after the date of the enactment
of the Violence Against Women
Reauthorization Act of 2013, the
Secretary of Health and Human Services
shall appoint child advocates at 3 new
immigration detention sites to provide
independent child advocates for
trafficking victims and vulnerable
unaccompanied alien children.
(ii) Additional sites.--Not later
than 3 years after the date of the
enactment of the Violence Against Women
Reauthorization Act of 2013, the
Secretary shall appoint child advocates
at not more than 3 additional
immigration detention sites.
(iii) Selection of sites.--Sites at
which child advocate programs will be
established under this subparagraph
shall be located at immigration
detention sites at which more than 50
children are held in immigration
custody, and shall be selected
sequentially, with priority given to
locations with--
(I) the largest number of
unaccompanied alien children;
and
(II) the most vulnerable
populations of unaccompanied
children.
(C) Restrictions.--
(i) Administrative expenses.--A child
advocate program may not use more that
10 percent of the Federal funds
received under this section for
administrative expenses.
(ii) Nonexclusivity.--Nothing in this
section may be construed to restrict
the ability of a child advocate program
under this section to apply for or
obtain funding from any other source to
carry out the programs described in
this section.
(iii) Contribution of funds.--A child
advocate program selected under this
section shall contribute non-Federal
funds, either directly or through in-
kind contributions, to the costs of the
child advocate program in an amount
that is not less than 25 percent of the
total amount of Federal funds received
by the child advocate program under
this section. In-kind contributions may
not exceed 40 percent of the matching
requirement under this clause.
(D) Annual report to congress.--Not later
than 1 year after the date of the enactment of
the Violence Against Women Reauthorization Act
of 2013, and annually thereafter, the Secretary
of Health and Human Services shall submit a
report describing the activities undertaken by
the Secretary to authorize the appointment of
independent Child Advocates for trafficking
victims and vulnerable unaccompanied alien
children to the Committee on the Judiciary of
the Senate and the Committee on the Judiciary
of the House of Representatives.
(E) Assessment of child advocate program.--
(i) In general.--As soon as
practicable after the date of the
enactment of the Violence Against Women
Reauthorization Act of 2013, the
Comptroller General of the United
States shall conduct a study regarding
the effectiveness of the Child Advocate
Program operated by the Secretary of
Health and Human Services.
(ii) Matters to be studied.--In the
study required under clause (i), the
Comptroller General shall-- collect
information and analyze the following:
(I) analyze the effectiveness
of existing child advocate
programs in improving outcomes
for trafficking victims and
other vulnerable unaccompanied
alien children;
(II) evaluate the
implementation of child
advocate programs in new sites
pursuant to subparagraph (B);
(III) evaluate the extent to
which eligible trafficking
victims and other vulnerable
unaccompanied children are
receiving child advocate
services and assess the
possible budgetary implications
of increased participation in
the program;
(IV) evaluate the barriers to
improving outcomes for
trafficking victims and other
vulnerable unaccompanied
children; and
(V) make recommendations on
statutory changes to improve
the Child Advocate Program in
relation to the matters
analyzed under subclauses (I)
through (IV).
(iii) GAO report.--Not later than 3
years after the date of the enactment
of this Act, the Comptroller General of
the United States shall submit the
results of the study required under
this subparagraph to--
(I) the Committee on the
Judiciary of the Senate;
(II) the Committee on Health,
Education, Labor, and Pensions
of the Senate;
(III) the Committee on the
Judiciary of the House of
Representatives; and
(IV) the Committee on
Education and the Workforce of
the House of Representatives.
(F) Authorization of appropriations.--There
are authorized to be appropriated to the
Secretary of Health and Human Services to carry
out this subsection--
(i) $1,000,000 for each of the fiscal
years 2014 and 2015; and
(ii) $2,000,000 for each of fiscal
years 2018 through 2021.
(d) Permanent Protection for Certain At-Risk Children.--
(1) In general.--Section 101(a)(27)(J) of the
Immigration and Nationality Act (8 U.S.C.
1101(a)(27)(J)) is amended--
(A) in clause (i), by striking ``State and
who has been deemed eligible by that court for
long-term foster care due to abuse, neglect, or
abandonment;'' and inserting ``State, or an
individual or entity appointed by a State or
juvenile court located in the United States,
and whose reunification with 1 or both of the
immigrant's parents is not viable due to abuse,
neglect, abandonment, or a similar basis found
under State law;''; and
(B) in clause (iii)--
(i) in the matter preceding subclause
(I), by striking ``the Attorney General
expressly consents to the dependency
order serving as a precondition to the
grant of special immigrant juvenile
status;'' and inserting ``the Secretary
of Homeland Security consents to the
grant of special immigrant juvenile
status,''; and
(ii) in subclause (I), by striking
``in the actual or constructive custody
of the Attorney General unless the
Attorney General specifically consents
to such jurisdiction;'' and inserting
``in the custody of the Secretary of
Health and Human Services unless the
Secretary of Health and Human Services
specifically consents to such
jurisdiction;''.
(2) Expeditious adjudication.--All applications for
special immigrant status under section 101(a)(27)(J) of
the Immigration and Nationality Act (8 U.S.C.
1101(a)(27)(J)) shall be adjudicated by the Secretary
of Homeland Security not later than 180 days after the
date on which the application is filed.
(3) Adjustment of status.--Section 245(h)(2)(A) of
the Immigration and Nationality Act (8 U.S.C.
1255(h)(2)(A)) is amended to read as follows:
``(A) paragraphs (4), (5)(A), (6)(A), (6)(C),
(6)(D), (7)(A), and (9)(B) of section 212(a)
shall not apply; and''.
(4) Eligibility for assistance.--
(A) In general.--A child who has been granted
special immigrant status under section
101(a)(27)(J) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(27)(J)) and
who was in the custody of the Secretary of
Health and Human Services at the time a
dependency order was granted for such child,
was receiving services pursuant to section
501(a) of the Refugee Education Assistance Act
of 1980 (8 U.S.C. 1522 note) at the time such
dependency order was granted, or has been
granted status under section 101(a)(15)(U) of
the Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(U)),, shall be eligible for
placement and services under section 412(d) of
the Immigration and Nationality Act (8 U.S.C.
1522(d)) until the earlier of--
(i) the date on which the child
reaches the age designated in section
412(d)(2)(B) of the Immigration and
Nationality Act (8 U.S.C.
1522(d)(2)(B)); or
(ii) the date on which the child is
placed in a permanent adoptive home.
(B) State reimbursement.--Subject to the
availability of appropriations, if State foster
care funds are expended on behalf of a child
who is not described in subparagraph (A) and
has been granted special immigrant status under
section 101(a)(27)(J) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(27)(J)), or
status under section 101(a)(15)(U) of the
Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(U)),, the Federal Government shall
reimburse the State in which the child resides
for such expenditures by the State.
(5) State courts acting in loco parentis.--A
department or agency of a State, or an individual or
entity appointed by a State court or juvenile court
located in the United States, acting in loco parentis,
shall not be considered a legal guardian for purposes
of this section or section 462 of the Homeland Security
Act of 2002 (6 U.S.C. 279).
(6) Transition rule.--Notwithstanding any other
provision of law, an alien described in section
101(a)(27)(J) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(27)(J)), as amended by paragraph (1),
may not be denied special immigrant status under such
section after the date of the enactment of this Act
based on age if the alien was a child on the date on
which the alien applied for such status.
(7) Access to asylum protections.--Section 208 of the
Immigration and Nationality Act (8 U.S.C. 1158) is
amended--
(A) in subsection (a)(2), by adding at the
end the following:
``(E) Applicability.--Subparagraphs (A) and
(B) shall not apply to an unaccompanied alien
child (as defined in section 462(g) of the
Homeland Security Act of 2002 (6 U.S.C.
279(g))).''; and
(B) in subsection (b)(3), by adding at the
end the following:
``(C) Initial jurisdiction.--An asylum
officer (as defined in section 235(b)(1)(E))
shall have initial jurisdiction over any asylum
application filed by an unaccompanied alien
child (as defined in section 462(g) of the
Homeland Security Act of 2002 (6 U.S.C.
279(g))), regardless of whether filed in
accordance with this section or section
235(b).''.
(8) Specialized needs of unaccompanied alien
children.--Applications for asylum and other forms of
relief from removal in which an unaccompanied alien
child is the principal applicant shall be governed by
regulations which take into account the specialized
needs of unaccompanied alien children and which address
both procedural and substantive aspects of handling
unaccompanied alien children's cases.
(e) Training.--The Secretary of State, the Secretary of
Homeland Security, the Secretary of Health and Human Services,
and the Attorney General shall provide specialized training to
all Federal personnel, and upon request, state and local
personnel, who have substantive contact with unaccompanied
alien children. Such personnel shall be trained to work with
unaccompanied alien children, including identifying children
who are victims of severe forms of trafficking in persons, and
children for whom asylum or special immigrant relief may be
appropriate, including children described in subsection (a)(2).
(f) Amendments to the Homeland Security Act of 2002.--
(1) Additional responsibilities.--Section
462(b)(1)(L) of the Homeland Security Act of 2002 (6
U.S.C. 279(b)(1)(L)) is amended by striking the period
at the end and inserting ``, including regular follow-
up visits to such facilities, placements, and other
entities, to assess the continued suitability of such
placements.''.
(2) Technical corrections.--Section 462(b) of such
Act (6 U.S.C. 279(b)) is further amended--
(A) in paragraph (3), by striking ``paragraph
(1)(G),'' and inserting ``paragraph (1),''; and
(B) by adding at the end the following:
``(4) Rule of construction.--Nothing in paragraph
(2)(B) may be construed to require that a bond be
posted for an unaccompanied alien child who is released
to a qualified sponsor.''.
(g) Definition of Unaccompanied Alien Child.--For purposes of
this section, the term ``unaccompanied alien child'' has the
meaning given such term in section 462(g) of the Homeland
Security Act of 2002 (6 U.S.C. 279(g)).
(h) Effective Date.--This section--
(1) shall take effect on the date that is 90 days
after the date of the enactment of this Act; and
(2) shall also apply to all aliens in the United
States in pending proceedings before the Department of
Homeland Security or the Executive Office for
Immigration Review, or related administrative or
Federal appeals, on the date of the enactment of this
Act.
(i) Grants and Contracts.--The Secretary of Health and Human
Services may award grants to, and enter into contracts with,
voluntary agencies to carry out this section and section 462 of
the Homeland Security Act of 2002 (6 U.S.C. 279).
(j) Construction.--
(1) In general.--Notwithstanding any other provision
of law, judicial determination, consent decree, or
settlement agreement, the detention of any alien child
who is not an unaccompanied alien child shall be
governed by sections 217, 235, 236, and 241 of the
Immigration and Nationality Act (8 U.S.C. 1187, 1225,
1226, and 1231). There is no presumption that an alien
child who is not an unaccompanied alien child should
not be detained.
(2) Family detention.--The Secretary of Homeland
Security shall--
(A) maintain the care and custody of an
alien, during the period during which the
charges described in clause (i) are pending,
who--
(i) is charged only with a
misdemeanor offense under section
275(a) of the Immigration and
Nationality Act (8 U.S.C. 1325(a)); and
(ii) entered the United States with
the alien's child who has not attained
18 years of age; and
(B) detain the alien with the alien's child.
* * * * * * *
----------
ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT OF 1996
DIVISION C--ILLEGAL IMMIGRATION REFORM AND IMMIGRANT RESPONSIBILITY ACT
OF 1996
SEC. 1. SHORT TITLE OF DIVISION; AMENDMENTS TO IMMIGRATION AND
NATIONALITY ACT; APPLICATION OF DEFINITIONS OF SUCH
ACT; TABLE OF CONTENTS OF DIVISION; SEVERABILITY.
(a) Short Title.--This division may be cited as the ``Illegal
Immigration Reform and Immigrant Responsibility Act of 1996''.
(b) Amendments to Immigration and Nationality Act.--Except as
otherwise specifically provided--
(1) * * *
* * * * * * *
(c) Application of Certain Definitions.--Except as otherwise
provided in this division, for purposes of titles I andVI of
this division, the terms ``alien'', ``Attorney General'',
``border crossing identification card'', ``entry'',
``immigrant'', ``immigrant visa'', ``lawfully admitted for
permanent residence'', ``national'',``naturalization'',
``refugee'', ``State'', and ``United States'' shall havethe
meaning given such terms in section 101(a) of the Immigration
and Nationality Act.
(d) Table of Contents of Division.--The table of contents of
this division is as follows:
Sec. 1. Short title of division; amendments to Immigration and
Nationality Act; application of definitions of such Act; table
of contents of division; severability.
* * * * * * *
TITLE IV--ENFORCEMENT OF RESTRICTIONS AGAINST EMPLOYMENT
[Subtitle A--Pilot Programs for Employment Eligibility Confirmation
[Sec. 401. Establishment of programs.
[Sec. 402. Voluntary election to participate in a pilot program.
[Sec. 403. Procedures for participants in pilot programs.
[Sec. 404. Employment eligibility confirmation system.
[Sec. 405. Reports.]
* * * * * * *
(e) Severability.--If any provision of this division or the
application of such provision to any person or circumstances
isheld to be unconstitutional, the remainder of this division
and the application of the provisions of this division to any
person or circumstance shall not be affected thereby.
* * * * * * *
TITLE IV--ENFORCEMENT OF RESTRICTIONS AGAINST EMPLOYMENT
[Subtitle A--Pilot Programs for Employment Eligibility Confirmation
[SEC. 401. ESTABLISHMENT OF PROGRAMS.
[(a) In General.--The Secretary of Homeland Security shall
conduct 3 pilot programs of employment eligibility confirmation
under this subtitle.
[(b) Implementation Deadline; Termination.--The Secretary of
Homeland Security shall implement the pilot programs in a
manner that permits persons and other entities to have
elections under section 402 of this division made and in effect
no later than 1 year after the date of the enactment of this
Act. Unless the Congress otherwise provides, the Secretary of
Homeland Security shall terminate a pilot program on September
30, 2015.
[(c) Scope of Operation of Pilot Programs.--The Secretary of
Homeland Security shall provide for the operation--
[(1) of the E-Verify Program (described in section
403(a) of this division) in, at a minimum, 5 of the 7
States with the highest estimated population of aliens
who are not lawfully present in the United States, and
the Secretary of Homeland Security shall expand the
operation of the program to all 50 States not later
than December 1, 2004;
[(2) of the citizen attestation pilot program
(described in section 403(b) of this division) in at
least 5 States (or, if fewer, all of the States) that
meet the condition described in section 403(b)(2)(A) of
this division; and
[(3) of the machine-readable-document pilot program
(described in section 403(c) of this division) in at
least 5 States (or, if fewer, all of the States) that
meet the condition described in section 403(c)(2) of
this division.
[(d) References in Subtitle.--In this subtitle--
[(1) Pilot program references.--The terms ``program''
or ``pilot program'' refer to any of the 3 pilot
programs provided for under this subtitle.
[(2) Confirmation system.--The term ``confirmation
system'' means the confirmation system established
under section 404 of this division.
[(3) References to section 274a.--Any reference in
this subtitle to section 274A (or a subdivision of such
section) is deemed a reference to such section (or
subdivision thereof) of the Immigration and Nationality
Act.
[(4) I-9 or similar form.--The term ``I-9 or similar
form'' means the form used for purposes of section
274A(b)(1)(A) or such other form as the Secretary of
Homeland Security determines to be appropriate.
[(5) Limited application to recruiters and
referrers.--Any reference to recruitment or referral
(or a recruiter or referrer) in relation to employment
is deemed a reference only to such recruitment or
referral (or recruiter or referrer) that is subject to
section 274A(a)(1)(B)(ii).
[(6) United states citizenship.--The term ``United
States citizenship'' includes United States
nationality.
[(7) State.--The term ``State'' has the meaning given
such term in section 101(a)(36) of the Immigration and
Nationality Act.
[SEC. 402. VOLUNTARY ELECTION TO PARTICIPATE IN A PILOT PROGRAM.
[(a) Voluntary Election.--Subject to subsection (c)(3)(B),
any person or other entity that conducts any hiring (or
recruitment or referral) in a State in which a pilot program is
operating may elect to participate in that pilot program.
Except as specifically provided in subsection (e), the
Secretary of Homeland Security may not require any person or
other entity to participate in a pilot program.
[(b) Benefit of Rebuttable Presumption.--
[(1) In general.--If a person or other entity is
participating in a pilot program and obtains
confirmation of identity and employment eligibility in
compliance with the terms and conditions of the program
with respect to the hiring (or recruitment or referral)
of an individual for employment in the United States,
the person or entity has established a rebuttable
presumption that the person or entity has not violated
section 274A(a)(1)(A) with respect to such hiring (or
such recruitment or referral).
[(2) Construction.--Paragraph (1) shall not be
construed as preventing a person or other entity that
has an election in effect under subsection (a) from
establishing an affirmative defense under section
274A(a)(3) if the person or entity complies with the
requirements of section 274A(a)(1)(B) but fails to
obtain confirmation under paragraph (1).
[(c) General Terms of Elections.--
[(1) In general.--An election under subsection (a)
shall be in such form and manner, under such terms and
conditions, and shall take effect, as the Secretary of
Homeland Security shall specify. The Secretary of
Homeland Security may not impose any fee as a condition
of making an election or participating in a pilot
program.
[(2) Scope of election.--
[(A) In general.--Subject to paragraph (3),
any electing person or other entity may provide
that the election under subsection (a) shall
apply (during the period in which the election
is in effect)--
[(i) to all its hiring (and all
recruitment or referral) in the State
(or States) in which the pilot program
is operating, or
[(ii) to its hiring (or recruitment
or referral) in one or more pilot
program States or one or more places of
hiring (or recruitment or referral, as
the case may be) in the pilot program
States.
[(B) Application of programs in non-pilot
program states.--In addition, the Secretary of
Homeland Security may permit a person or entity
electing the citizen attestation pilot program
(described in 403(b) of this division) or the
machine-readable-document pilot program
(described in section 403(c) of this division)
to provide that the election applies to its
hiring (or recruitment or referral) in one or
more States or places of hiring (or recruitment
or referral) in which the pilot program is not
otherwise operating but only if such States
meet the requirements of 403(b)(2)(A) and
403(c)(2) of this division, respectively.
[(3) Termination of elections.--The Secretary of
Homeland Security may terminate an election by a person
or other entity under this section because the person
or entity has substantially failed to comply with its
obligations under the pilot program. A person or other
entity may terminate an election in such form and
manner as the Secretary of Homeland Security shall
specify.
[(d) Consultation, Education, and Publicity.--
[(1) Consultation.--The Secretary of Homeland
Security shall closely consult with representatives of
employers (and recruiters and referrers) in the
development and implementation of the pilot programs,
including the education of employers (and recruiters
and referrers) about such programs.
[(2) Publicity.--The Secretary of Homeland Security
shall widely publicize the election process and pilot
programs, including the voluntary nature of the pilot
programs and the advantages to employers (and
recruiters and referrers) of making an election under
this section.
[(3) Assistance through district offices.--The
Secretary of Homeland Security shall designate one or
more individuals in each District office of the
Immigration and Naturalization Service for a Service
District in which a pilot program is being
implemented--
[(A) to inform persons and other entities
that seek information about pilot programs of
the voluntary nature of such programs, and
[(B) to assist persons and other entities in
electing and participating in any pilot
programs in effect in the District, in
complying with the requirements of section
274A, and in facilitating confirmation of the
identity and employment eligibility of
individuals consistent with such section.
[(e) Select Entities Required to Participate in a Pilot
Program.--
[(1) Federal government.--
[(A) Executive departments.--
[(i) In general.--Each Department of
the Federal Government shall elect to
participate in a pilot program and
shall comply with the terms and
conditions of such an election.
[(ii) Election.--Subject to clause
(iii), the Secretary of each such
Department--
[(I) shall elect the pilot
program (or programs) in which
the Department shall
participate, and
[(II) may limit the election
to hiring occurring in certain
States (or geographic areas)
covered by the program (or
programs) and in specified
divisions within the
Department, so long as all
hiring by such divisions and in
such locations is covered.
[(iii) Role of attorney general.--The
Secretary of Homeland Security shall
assist and coordinate elections under
this subparagraph in such manner as
assures that--
[(I) a significant portion of
the total hiring within each
Department within States
covered by a pilot program is
covered under such a program,
and
[(II) there is significant
participation by the Federal
Executive branch in each of the
pilot programs.
[(B) Legislative branch.--Each Member of
Congress, each officer of Congress, and the
head of each agency of the legislative branch,
that conducts hiring in a State in which a
pilot program is operating shall elect to
participate in a pilot program, may specify
which pilot program or programs (if there is
more than one) in which the Member, officer, or
agency will participate, and shall comply with
the terms and conditions of such an election.
[(2) Application to certain violators.--An order
under section 274A(e)(4) or section 274B(g) of the
Immigration and Nationality Act may require the subject
of the order to participate in, and comply with the
terms of, a pilot program with respect to the subject's
hiring (or recruitment or referral) of individuals in a
State covered by such a program.
[(3) Consequence of failure to participate.--If a
person or other entity is required under this
subsection to participate in a pilot program and fails
to comply with the requirements of such program with
respect to an individual--
[(A) such failure shall be treated as a
violation of section 274A(a)(1)(B) with respect
to that individual, and
[(B) a rebuttable presumption is created that
the person or entity has violated section
274A(a)(1)(A).
Subparagraph (B) shall not apply in any prosecution
under section 274A(f)(1).
[(f) Construction.--This subtitle shall not affect the
authority of the Secretary of Homeland Security under any other
law (including section 274A(d)(4)) to conduct demonstration
projects in relation to section 274A.
[SEC. 403. PROCEDURES FOR PARTICIPANTS IN PILOT PROGRAMS.
[(a) E-Verify Program.--A person or other entity that elects
to participate in the E-Verify Program described in this
subsection agrees to conform to the following procedures in the
case of the hiring (or recruitment or referral) for employment
in the United States of each individual covered by the
election:
[(1) Provision of additional information.--The person
or entity shall obtain from the individual (and the
individual shall provide) and shall record on the I-9
or similar form--
[(A) the individual's social security account
number, if the individual has been issued such
a number, and
[(B) if the individual does not attest to
United States citizenship under section
274A(b)(2), such identification or
authorization number established by the
Immigration and Naturalization Service for the
alien as the Secretary of Homeland Security
shall specify,
and shall retain the original form and make it
available for inspection for the period and in the
manner required of I-9 forms under section 274A(b)(3).
[(2) Presentation of documentation.--
[(A) In general.--The person or other entity,
and the individual whose identity and
employment eligibility are being confirmed,
shall, subject to subparagraph (B), fulfill the
requirements of section 274A(b) with the
following modifications:
[(i) A document referred to in
section 274A(b)(1)(B)(ii) (as
redesignated by section 412(a) of this
division) must be designated by the
Secretary of Homeland Security as
suitable for the purpose of
identification in a pilot program.
[(ii) A document referred to in
section 274A(b)(1)(D) must contain a
photograph of the individual.
[(iii) The person or other entity has
complied with the requirements of
section 274A(b)(1) with respect to
examination of a document if the
document reasonably appears on its face
to be genuine and it reasonably appears
to pertain to the individual whose
identity and work eligibility is being
confirmed.
[(B) Limitation of requirement to examine
documentation.--If the Secretary of Homeland
Security finds that a pilot program would
reliably determine with respect to an
individual whether--
[(i) the person with the identity
claimed by the individual is authorized
to work in the United States, and
[(ii) the individual is claiming the
identity of another person,
if a person or entity could fulfill the
requirement to examine documentation contained
in subparagraph (A) of section 274A(b)(1) by
examining a document specified in either
subparagraph (B) or (D) of such section, the
Secretary of Homeland Security may provide
that, for purposes of such requirement, only
such a document need be examined. In such case,
any reference in section 274A(b)(1)(A) to a
verification that an individual is not an
unauthorized alien shall be deemed to be a
verification of the individual's identity.
[(3) Seeking confirmation.--
[(A) In general.--The person or other entity
shall make an inquiry, as provided in section
404(a)(1) of this division, using the
confirmation system to seek confirmation of the
identity and employment eligibility of an
individual, by not later than the end of 3
working days (as specified by the Secretary of
Homeland Security) after the date of the hiring
(or recruitment or referral, as the case may
be).
[(B) Extension of time period.--If the person
or other entity in good faith attempts to make
an inquiry during such 3 working days and the
confirmation system has registered that not all
inquiries were received during such time, the
person or entity can make an inquiry in the
first subsequent working day in which the
confirmation system registers that it has
received all inquiries. If the confirmation
system cannot receive inquiries at all times
during a day, the person or entity merely has
to assert that the entity attempted to make the
inquiry on that day for the previous sentence
to apply to such an inquiry, and does not have
to provide any additional proof concerning such
inquiry.
[(4) Confirmation or nonconfirmation.--
[(A) Confirmation upon initial inquiry.--If
the person or other entity receives an
appropriate confirmation of an individual's
identity and work eligibility under the
confirmation system within the time period
specified under section 404(b) of this
division, the person or entity shall record on
the I-9 or similar form an appropriate code
that is provided under the system and that
indicates a final confirmation of such identity
and work eligibility of the individual.
[(B) Nonconfirmation upon initial inquiry and
secondary verification.--
[(i) Nonconfirmation.--If the person
or other entity receives a tentative
nonconfirmation of an individual's
identity or work eligibility under the
confirmation system within the time
period specified under 404(b) of this
division, the person or entity shall so
inform the individual for whom the
confirmation is sought.
[(ii) No contest.--If the individual
does not contest the nonconfirmation
within the time period specified in
section 404(c) of this division, the
nonconfirmation shall be considered
final. The person or entity shall then
record on the I-9 or similar form an
appropriate code which has been
provided under the system to indicate a
tentative nonconfirmation.
[(iii) Contest.--If the individual
does contest the nonconfirmation, the
individual shall utilize the process
for secondary verification provided
under section 404(c) of this division.
The nonconfirmation will remain
tentative until a final confirmation or
nonconfirmation is provided by the
confirmation system within the time
period specified in such section. In no
case shall an employer terminate
employment of an individual because of
a failure of the individual to have
identity and work eligibility confirmed
under this section until a
nonconfirmation becomes final. Nothing
in this clause shall apply to a
termination of employment for any
reason other than because of such a
failure.
[(iv) Recording of conclusion on
form.--If a final confirmation or
nonconfirmation is provided by the
confirmation system under section
404(c) of this division regarding an
individual, the person or entity shall
record on the I-9 or similar form an
appropriate code that is provided under
the system and that indicates a
confirmation or nonconfirmation of
identity and work eligibility of the
individual.
[(C) Consequences of nonconfirmation.--
[(i) Termination or notification of
continued employment.--If the person or
other entity has received a final
nonconfirmation regarding an individual
under subparagraph (B), the person or
entity may terminate employment (or
recruitment or referral) of the
individual. If the person or entity
does not terminate employment (or
recruitment or referral) of the
individual, the person or entity shall
notify the Secretary of Homeland
Security of such fact through the
confirmation system or in such other
manner as the Secretary of Homeland
Security may specify.
[(ii) Failure to notify.--If the
person or entity fails to provide
notice with respect to an individual as
required under clause (i), the failure
is deemed to constitute a violation of
section 274A(a)(1)(B) with respect to
that individual and the applicable
civil monetary penalty under section
274A(e)(5) shall be (notwithstanding
the amounts specified in such section)
no less than $500 and no more than
$1,000 for each individual with respect
to whom such violation occurred.
[(iii) Continued employment after
final nonconfirmation.--If the person
or other entity continues to employ (or
to recruit or refer) an individual
after receiving final nonconfirmation,
a rebuttable presumption is created
that the person or entity has violated
section 274A(a)(1)(A). The previous
sentence shall not apply in any
prosecution under section 274A(f)(1).
[(b) Citizen Attestation Pilot Program.--
[(1) In general.--Except as provided in paragraphs
(3) through (5), the procedures applicable under the
citizen attestation pilot program under this subsection
shall be the same procedures as those under the E-
Verify Program under subsection (a).
[(2) Restrictions.--
[(A) State document requirement to
participate in pilot program.--The Secretary of
Homeland Security may not provide for the
operation of the citizen attestation pilot
program in a State unless each driver's license
or similar identification document described in
section 274A(b)(1)(D)(i) issued by the State--
[(i) contains a photograph of the
individual involved, and
[(ii) has been determined by the
Secretary of Homeland Security to have
security features, and to have been
issued through application and issuance
procedures, which make such document
sufficiently resistant to
counterfeiting, tampering, and
fraudulent use that it is a reliable
means of identification for purposes of
this section.
[(B) Authorization to limit employer
participation.--The Secretary of Homeland
Security may restrict the number of persons or
other entities that may elect to participate in
the citizen attestation pilot program under
this subsection as the Secretary of Homeland
Security determines to be necessary to produce
a representative sample of employers and to
reduce the potential impact of fraud.
[(3) No confirmation required for certain individuals
attesting to u.s. citizenship.--In the case of a person
or other entity hiring (or recruiting or referring) an
individual under the citizen attestation pilot program,
if the individual attests to United States citizenship
(under penalty of perjury on an I-9 or similar form
which form states on its face the criminal and other
penalties provided under law for a false representation
of United States citizenship)--
[(A) the person or entity may fulfill the
requirement to examine documentation contained
in subparagraph (A) of section 274A(b)(1) by
examining a document specified in either
subparagraph (B)(i) or (D) of such section; and
[(B) the person or other entity is not
required to comply with respect to such
individual with the procedures described in
paragraphs (3) and (4) of subsection (a), but
only if the person or entity retains the form
and makes it available for inspection in the
same manner as in the case of an I-9 form under
section 274A(b)(3).
[(4) Waiver of document presentation requirement in
certain cases.--
[(A) In general.--In the case of a person or
entity that elects, in a manner specified by
the Secretary of Homeland Security consistent
with subparagraph (B), to participate in the
pilot program under this paragraph, if an
individual being hired (or recruited or
referred) attests (in the manner described in
paragraph (3)) to United States citizenship and
the person or entity retains the form on which
the attestation is made and makes it available
for inspection in the same manner as in the
case of an I-9 form under section 274A(b)(3),
the person or entity is not required to comply
with the procedures described in section
274A(b).
[(B) Restriction.--The Secretary of Homeland
Security shall restrict the election under this
paragraph to no more than 1,000 employers and,
to the extent practicable, shall select among
employers seeking to make such election in a
manner that provides for such an election by a
representative sample of employers.
[(5) Nonreviewable determinations.--The
determinations of the Secretary of Homeland Security
under paragraphs (2) and (4) are within the discretion
of the Secretary of Homeland Security and are not
subject to judicial or administrative review.
[(c) Machine-Readable-Document Pilot Program.--
[(1) In general.--Except as provided in paragraph
(3), the procedures applicable under the machine-
readable-document pilot program under this subsection
shall be the same procedures as those under the E-
Verify Program under subsection (a).
[(2) State document requirement to participate in
pilot program.--The Secretary of Homeland Security may
not provide for the operation of the machine-readable-
document pilot program in a State unless driver's
licenses and similar identification documents described
in section 274A(b)(1)(D)(i) issued by the State include
a machine-readable social security account number.
[(3) Use of machine-readable documents.--If the
individual whose identity and employment eligibility
must be confirmed presents to the person or entity
hiring (or recruiting or referring) the individual a
license or other document described in paragraph (2)
that includes a machine-readable social security
account number, the person or entity must make an
inquiry through the confirmation system by using a
machine-readable feature of such document. If the
individual does not attest to United States citizenship
under section 274A(b)(2), the individual's
identification or authorization number described in
subsection (a)(1)(B) shall be provided as part of the
inquiry.
[(d) Protection From Liability for Actions Taken on the Basis
of Information Provided by the Confirmation System.--No person
or entity participating in a pilot program shall be civilly or
criminally liable under any law for any action taken in good
faith reliance on information provided through the confirmation
system.
[SEC. 404. EMPLOYMENT ELIGIBILITY CONFIRMATION SYSTEM.
[(a) In General.--The Secretary of Homeland Security shall
establish a pilot program confirmation system through which the
Secretary of Homeland Security (or a designee of the Secretary
of Homeland Security, which may be a nongovernmental entity)--
[(1) responds to inquiries made by electing persons
and other entities (including those made by the
transmittal of data from machine-readable documents
under the machine-readable pilot program) at any time
through a toll-free telephone line or other toll-free
electronic media concerning an individual's identity
and whether the individual is authorized to be
employed, and
[(2) maintains records of the inquiries that were
made, of confirmations provided (or not provided), and
of the codes provided to inquirers as evidence of their
compliance with their obligations under the pilot
programs.
To the extent practicable, the Secretary of Homeland Security
shall seek to establish such a system using one or more
nongovernmental entities.
[(b) Initial Response.--The confirmation system shall provide
confirmation or a tentative nonconfirmation of an individual's
identity and employment eligibility within 3 working days of
the initial inquiry. If providing confirmation or tentative
nonconfirmation, the confirmation system shall provide an
appropriate code indicating such confirmation or such
nonconfirmation.
[(c) Secondary Verification Process in Case of Tentative
Nonconfirmation.--In cases of tentative nonconfirmation, the
Secretary of Homeland Security shall specify, in consultation
with the Commissioner of Social Security and the Commissioner
of the Immigration and Naturalization Service, an available
secondary verification process to confirm the validity of
information provided and to provide a final confirmation or
nonconfirmation within 10 working days after the date of the
tentative nonconfirmation. When final confirmation or
nonconfirmation is provided, the confirmation system shall
provide an appropriate code indicating such confirmation or
nonconfirmation.
[(d) Design and Operation of System.--The confirmation system
shall be designed and operated--
[(1) to maximize its reliability and ease of use by
persons and other entities making elections under
section 402(a) of this division consistent with
insulating and protecting the privacy and security of
the underlying information;
[(2) to respond to all inquiries made by such persons
and entities on whether individuals are authorized to
be employed and to register all times when such
inquiries are not received;
[(3) with appropriate administrative, technical, and
physical safeguards to prevent unauthorized disclosure
of personal information; and
[(4) to have reasonable safeguards against the
system's resulting in unlawful discriminatory practices
based on national origin or citizenship status,
including--
[(A) the selective or unauthorized use of the
system to verify eligibility;
[(B) the use of the system prior to an offer
of employment; or
[(C) the exclusion of certain individuals
from consideration for employment as a result
of a perceived likelihood that additional
verification will be required, beyond what is
required for most job applicants.
[(e) Responsibilities of the Commissioner of Social
Security.--As part of the confirmation system, the Commissioner
of Social Security, in consultation with the entity responsible
for administration of the system, shall establish a reliable,
secure method, which, within the time periods specified under
subsections (b) and (c), compares the name and social security
account number provided in an inquiry against such information
maintained by the Commissioner in order to confirm (or not
confirm) the validity of the information provided regarding an
individual whose identity and employment eligibility must be
confirmed, the correspondence of the name and number, and
whether the individual has presented a social security account
number that is not valid for employment. The Commissioner shall
not disclose or release social security information (other than
such confirmation or nonconfirmation).
[(f) Responsibilities of the Commissioner of the Immigration
and Naturalization Service.--As part of the confirmation
system, the Commissioner of the Immigration and Naturalization
Service, in consultation with the entity responsible for
administration of the system, shall establish a reliable,
secure method, which, within the time periods specified under
subsections (b) and (c), compares the name and alien
identification or authorization number described in section
403(a)(1)(B) of this division which are provided in an inquiry
against such information maintained by the Commissioner in
order to confirm (or not confirm) the validity of the
information provided, the correspondence of the name and
number, and whether the alien is authorized to be employed in
the United States.
[(g) Updating Information.--The Commissioners of Social
Security and the Immigration and Naturalization Service shall
update their information in a manner that promotes the maximum
accuracy and shall provide a process for the prompt correction
of erroneous information, including instances in which it is
brought to their attention in the secondary verification
process described in subsection (c).
[(h) Limitation on Use of the Confirmation System and Any
Related Systems.--
[(1) In general.--Notwithstanding any other provision
of law, nothing in this subtitle shall be construed to
permit or allow any department, bureau, or other agency
of the United States Government to utilize any
information, data base, or other records assembled
under this subtitle for any other purpose other than as
provided for under this subtitle.
[(2) No national identification card.--Nothing in
this subtitle shall be construed to authorize, directly
or indirectly, the issuance or use of national
identification cards or the establishment of a national
identification card.
[SEC. 405. REPORTS.
[(a) In General.--The Secretary of Homeland Security shall
submit to the Committees on the Judiciary of the House of
Representatives and of the Senate reports on the pilot programs
within 3 months after the end of the third and fourth years in
which the programs are in effect. Such reports shall--
[(1) assess the degree of fraudulent attesting of
United States citizenship,
[(2) include recommendations on whether or not the
pilot programs should be continued or modified, and
[(3) assess the benefits of the pilot programs to
employers and the degree to which they assist in the
enforcement of section 274A.
[(b) Report on Expansion.--Not later than June 1, 2004, the
Secretary of Homeland Security shall submit to the Committees
on the Judiciary of the House of Representatives and the Senate
a report--
[(1) evaluating whether the problems identified by
the report submitted under subsection (a) have been
substantially resolved; and
[(2) describing what actions the Secretary of
Homeland Security shall take before undertaking the
expansion of the E-Verify Program to all 50 States in
accordance with section 401(c)(1), in order to resolve
any outstanding problems raised in the report filed
under subsection (a).]
* * * * * * *
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TITLE 18, UNITED STATES CODE
* * * * * * *
PART I--CRIMES
* * * * * * *
CHAPTER 75--PASSPORTS AND VISAS
* * * * * * *
Sec. 1546. Fraud and misuse of visas, permits, and other documents
(a) Whoever knowingly forges, counterfeits, alters, or
falsely makes any immigrant or nonimmigrant visa, permit,
border crossing card, alien registration receipt card, or other
document prescribed by statute or regulation for entry into or
as evidence of authorized stay or employment in the United
States, or utters, uses, attempts to use, possesses, obtains,
accepts, or receives any such visa, permit, border crossing
card, alien registration receipt card, or other document
prescribed by statute or regulation for entry into or as
evidence of authorized stay or employment in the United States,
knowing it to be forged, counterfeited, altered, or falsely
made, or to have been procured by means of any false claim or
statement, or to have been otherwise procured by fraud or
unlawfully obtained; or
Whoever, except under direction of the Attorney General or
the Commissioner of the Immigration and Naturalization Service,
or other proper officer, knowingly possesses any blank permit,
or engraves, sells, brings into the United States, or has in
his control or possession any plate in the likeness of a plate
designed for the printing of permits, or makes any print,
photograph, or impression in the likeness of any immigrant or
nonimmigrant visa, permit or other document required for entry
into the United States, or has in his possession a distinctive
paper which has been adopted by the Attorney General or the
Commissioner of the Immigration and Naturalization Service for
the printing of such visas, permits, or documents; or
Whoever, when applying for an immigrant or nonimmigrant visa,
permit, or other document required for entry into the United
States, or for admission to the United States personates
another, or falsely appears in the name of a deceased
individual, or evades or attempts to evade the immigration laws
by appearing under an assumed or fictitious name without
disclosing his true identity, or sells or otherwise disposes
of, or offers to sell or otherwise dispose of, or utters, such
visa, permit, or other document, to any person not authorized
by law to receive such document; or
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 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
25 years (if the offense was committed to facilitate an act of
international terrorism (as defined in section 2331 of this
title)), 20 years (if the offense was committed to facilitate a
drug trafficking crime (as defined in section 929(a) of this
title)), 10 years (in the case of the first or second such
offense, if the offense was not committed to facilitate such an
act of international terrorism or a drug trafficking crime), or
15 years (in the case of any other offense), or both.
(b) Whoever uses--
(1) an [identification document,] identification
document or document meant to establish work
authorization (including the documents described in
section 274A(b) of the Immigration and Nationality
Act), knowing (or having reason to know) that the
document was not issued lawfully for the use of the
possessor,
(2) an [identification document] identification
document or document meant to establish work
authorization (including the documents described in
section 274A(b) of the Immigration and Nationality
Act), knowing (or having reason to know) that the
document is false, or
(3) a false attestation,
for the purpose of satisfying a requirement of section 274A(b)
of the Immigration and Nationality Act, shall be fined under
this title, imprisoned not more than 5 years, or both.
(c) This section does not prohibit any lawfully authorized
investigative, protective, or intelligence activity of a law
enforcement agency of the United States, a State, or a
subdivision of a State, or of an intelligence agency of the
United States, or any activity authorized under title V of the
Organized Crime Control Act of 1970 (18 U.S.C. note prec.
3481). For purposes of this section, the term ``State'' means a
State of the United States, the District of Columbia, and any
commonwealth, territory, or possession of the United States.
* * * * * * *
Minority Views
I. INTRODUCTION
H.R. 2640 is cruel, extreme, and unworkable legislation
that continues the Republicans' anti-immigrant, enforcement-
only approach to immigration. It would wreck our economy,
destroy the asylum system, criminalize visa overstays, send
unaccompanied children back to dangerous situations, and jail
children indefinitely. We should all be working together to fix
the broken immigration system. Democrats are ready to work with
serious Republicans to pass meaningful changes, just as we did
with the Farm Workforce Modernization Act and the American
Dream and Promise Act in prior congresses.
Unfortunately, this bill is not a serious attempt to reform
our broken immigration system. It does nothing to address the
root causes of migration, improve border security, or create
additional legal pathways for people to enter the United States
lawfully. If we can create a more humane immigration system
that recognizes both the horrific conditions that cause
migrants to flee and the contributions of immigrants to
America, we can decrease unauthorized crossings, strengthen our
economy, and protect migrants and citizens from harm.
Republicans want to take us back to the failed, illegal,
and immoral policies of the Trump administration. President
Trump's radical, inhumane, and racist immigration actions
weakened the U.S. economy, undermined our moral standing in the
world, led to increased numbers of migrants at the southern
border and did not make us any safer. In the absence of a
credible plan to fix our broken immigration system, Republicans
have resorted to political stunts instead of real solutions. If
Republicans were truly concerned with securing the border, they
would work with Democrats to secure our ports of entry, expand
legal pathways for migrants, and address the root causes of
migration. Immigration reform is a complex problem that
requires comprehensive solutions, and an enforcement-only
strategy simply doesn't work.
H.R. 2640 consists of seven titles, each of which would
unleash untold suffering on migrants fleeing unspeakable
conditions, and it would be particularly devastating to
children.
Title I would completely upend the asylum
system (making it nearly impossible for anyone to come
to our borders and seek asylum) as well as the process
in place for unaccompanied children.
Title II would require that all migrants
seeking admission without a visa be detained, removed,
or subjected to a ``Return to Mexico''-style program.
Title III would mandate indefinite detention
for all asylum-seeking families and other immigrants
attempting to enter the United States without a visa.
Title IV would subject all unaccompanied
children to an even more draconian version of the
expedited removal process, allow children to be
detained in Customs and Border Protection (CBP)
facilities for an entire month, and summarily send
children back into the hands of smugglers and those
seeking to exploit them.
Title V would criminalize overstaying visas
and status violations, subjecting first-time violators
to up to 6 months in prison and civil penalties of up
to $1,000.
Title VI would severely restrict the
administration's ability to parole individuals into the
United States, including ending the current parole
initiatives for Ukrainians fleeing Russia and certain
military families, and would strip most parolees of
their ability to obtain work authorization.
Title VII would require all U.S. employers
to use the E-Verify system without the necessary due
process protections for workers or reforms to the
immigration system to make mandatory E-Verify workable.
This legislation is not a serious solution for our broken
immigration system.
II. H.R. 2640 WOULD COMPLETELY UPEND THE ASYLUM SYSTEM
Title I, the ``Asylum Reform and Border Protection Act of
2023,'' would slash protections for asylum seekers and other
vulnerable populations. Indeed, the bill does not reform our
asylum system as much as dismantle it. Doubling down on Donald
Trump's anti-humanitarian policies, Title I would return asylum
seekers of all ages and circumstances to further persecution,
and too often, death.
Republicans predicate this bill on their belief that our
asylum system is rife with fraud and abuse. However, there is
no reliable evidence to support this position. Nearly every
group that works with asylees offers compelling evidence of
legitimate claims and rampant human rights abuses in sending
countries that drive many of these individuals to seek
sanctuary.
Most problematically, this title: (1) authorizes DHS to
deport virtually every asylum seeker that reached the United
States through a third country, such as Mexico; (2) makes
sweeping changes to the definitions of various grounds of
asylum, including particular social group and political
opinion; (3) impracticably elevates the evidentiary standard in
credible fear screenings; and (4) introduces wide-reaching new
bars to asylum, including (a) barring anyone (including
unaccompanied children) who entered between ports of entry from
obtaining asylum; (b) barring from asylum any individual who
has or could have had even temporary status in a third country;
and (c) massively expanding the criminal bars to asylum and
allowing adjudicators to use unreliable evidence, such as
Interpol Red Notices and facts not found by a criminal court,
as proof that the applicant committed a crime.
While the Majority claims that these provisions close
loopholes in our humanitarian system, in reality, when taken
together, they serve as a wholesale ban on asylum. Only the
lucky few who can come directly to the United States and meet
the significantly narrowed asylum grounds would be able to
obtain protection.
Due to the numerous concerns about how this title would
decimate our asylum system, Democrats offered amendments that
would strike Title I in its entirety, exempt individuals
fleeing from communist and totalitarian countries from the
asylum bars for individuals who cross between ports of entry,
and exempt all unaccompanied children, then unaccompanied
children under the age of 5, or unaccompanied children under
the age of one from the asylum bar. These amendments were all
defeated on party line roll call votes.
III. ATTEMPTS TO FIX H.R. 2640 FAIL TO MITIGATE CONCERNS THAT THE BILL
WOULD BE UNWORKABLE AND INHUMANE
Title II, the ``Border Safety and Migrant Protection Act of
2023,'' seems to be the Majority's attempt at creating a more
palatable version of H.R. 29, the ``Border Safety and Security
Act of 2023,'' legislation so extreme that even Republicans
called it un-American and un-Christian and blocked it from
consideration on the House Floor.\1\ Despite the fig leaf of
modest improvement, H.R. 2640 utterly fails in creating a
workable and humane asylum system.
---------------------------------------------------------------------------
\1\Emily Brooks and Rafael Bernal, Tensions High as House GOP
Tackles Take Two at Border Bill, The Hill (Mar. 28, 2023) https://
thehill.com/latino/3920921-tensions-high-as-house-gop-tackles-take-two-
at-border-bill/.
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The title shares much of the prior attempt's problems--it
would overturn our current asylum system and require the
Secretary of Homeland Security to detain, deport, or return to
Mexico all asylum seekers who attempt to enter the United
States at the border without a visa. During the markup,
Representative Roy (R-TX) offered an amendment that was adopted
by the Committee that stripped out the provision of the bill
that requires the Secretary of Homeland Security to suspend the
entry of all asylum seekers if he cannot detain, deport, or
return them all to Mexico. However, this title still
constitutes an unprecedented attack on our asylum system and an
attempt to unilaterally force Mexico to accept our asylum
seekers.
No Congress--under Republican or Democratic leadership--has
ever appropriated sufficient resources to detain all migrants.
The cost of detaining all migrants would be astronomical--in
2015, the conservative American Action Forum estimated that
detaining every undocumented migrant in the country would cost
approximately $35.7 billion.\2\ In contrast, former President
Trump requested $3.1 billion for detention space in FY 2021.\3\
The research further estimates that deporting all undocumented
migrants and continuing to enforce a strict deportation scheme
into the future would cost anywhere between $419.6 billion and
$619.4 billion.\4\ Former President Trump's 2021 budget
requested $49.7 billion for all of DHS, including for its non-
immigration-related components.\5\
---------------------------------------------------------------------------
\2\Ben Gitis & Laura Collins, The Budgetary and Economic Costs of
Addressing Unauthorized Immigration: Alternative Strategies, Am. Action
Forum (Mar. 6, 2015) https://www.americanactionforum.org/research/the-
budgetary-and-economic-costs-of-addressing-unauthorized-immigration-
alt/.
\3\A Budget for America's Future, Office of Management and Budget
(Feb. 10, 2020), https://trumpwhitehouse.archives.gov/wp-content/
uploads/2020/02/budget_fy21.pdf.
\4\Gitis & Collins, supra note 1.
\5\Office of Management and Budget, supra note 3.
---------------------------------------------------------------------------
Likewise, the use of Remain in Mexico and Title 42 exposed
migrants to extreme danger and served as a boon to the cartels.
As of February 2021, there were over 1,500 publicly reported
cases of murder, rape, torture, kidnapping and other violent
assaults against migrants returned under Remain in Mexico.\6\
Our restrictive policies have also caused Mexico to harden its
own policies--deporting thousands and detaining others in
crowded detention facilities in extremely poor conditions.\7\
Continuing to push migrants back into Mexico will only serve to
further put vulnerable migrants at risk, as we saw all too well
when migrants in an immigration center in Ciudad Juarez were
left to be burned alive in March.\8\
---------------------------------------------------------------------------
\6\Id.
\7\Raquel Aldana, Migrant deaths in Mexico put spotlight on US
policy that shifted immigration enforcement south, The Conversation
(Apr. 1, 2023), https://theconversation.com/migrant-deaths-in-mexico-
put-spotlight-on-us-policy-that-shifted-immigration-enforcement-south-
202896.
\8\Id.
---------------------------------------------------------------------------
Finally, as part of Representative Roy's amendment, the
Majority added a new provision to the bill which would reopen
numerous closed Immigration and Customs Enforcement (ICE)
detention facilities that were shut down due to egregious human
rights abuses. This includes the Irwin County Detention Center,
the site of numerous horrifying allegations of detainees forced
to undergo unnecessary invasive gynecological procedures.\9\
These facilities were closed for good reasons, and the fact
that Republicans wish to reopen them is deeply disturbing.
---------------------------------------------------------------------------
\9\Morgan Lee, Senate panel finds `extraordinary disturbing'
medical procedures at closed Georgia immigration jail, FOX 5 Atlanta
(Nov. 16, 2022), https://www.fox5atlanta.com/news/irwin-county-
detention-center-surgeries-senate-investigation.
---------------------------------------------------------------------------
Many of Democrats' concerns with this section centered on
Representative Roy's wrongheaded idea to close the border to
all asylum seekers if the Secretary of Homeland Security cannot
detain, deport, or return to Mexico all asylum seekers. We
submitted an amendment to exempt individuals fleeing from
communist and totalitarian countries from that provision before
Representative Roy filed his amendment removing it. The
amendment was opposed on a party line vote.
IV. H.R. 2640 WOULD HAVE A DEVASTATING IMPACT ON CHILDREN AND FAMILIES
Title III, the ``Ensuring United Families at the Border
Act,'' would require indefinite family detention for any
families attempting to enter the United States to seek asylum,
as well as any families who previously entered the United
States without visas. It would also require family detention
throughout the pendency of a parent's immigration case which
could take years. The bill argues that it satisfies the
provisions of the Flores Settlement Agreement for children
detained with their families, which is intended to ensure that
migrant children are released from detention as expeditiously
as possible, and that any children who cannot be released be
transferred to facilities licensed by the States as appropriate
for housing dependent children. The Flores Agreement is only in
place until ``publication of final regulations implementing
th[e] Agreement'' are put in place.\10\ It is unclear, however,
how this bill, which directly contravenes the purpose of
Flores, could be considered to be ``implementing'' the
Agreement.
---------------------------------------------------------------------------
\10\Stipulated Settlement Agreement, Jenny Lissette Flores v. Reno,
Case No. 85-4544-RJK (C.D. CA 1997), para.40.
---------------------------------------------------------------------------
The harm of detaining children is clear: According to the
American Academy of Pediatrics, ``there is no evidence that any
amount of time in detention is `safe' for children. In fact,
even short periods of detention can cause psychological trauma
and long-term mental health risks for children.''\11\ According
to a physician and psychiatrist who investigated family
detention facilities for the Department of Homeland Security's
Office of Civil Rights and Civil Liberties, ``shorter lengths
of detention did not sufficiently mitigate the harmful
conditions that we observed and their deleterious consequences;
most of the harms we documented were in families detained less
than 20 days.''\12\
---------------------------------------------------------------------------
\11\Devin Miller, Pediatricians speak out: Detention is not the
answer to family separation, American Academy of Pediatrics (Jul. 24,
2018) https://publications.aap.org/aapnews/news/12792.
\12\Letter to Joseph R. Biden, President of the United States, and
Alejandro Mayorkas, Secretary, Dep't of Homeland Security from Dr.
Scott A. Allen & Dr. Pamela McPherson re: Renewed Concerns of DHS
Medical Experts Regarding Harms to Children Caused by Family Detention
(Mar. 8, 2023) https://assets.law360news.com/1584000/1584237/
letter.pdf.
---------------------------------------------------------------------------
The bill applies retroactively, which means a family who
has been waiting for their asylum hearing for three years,
during which time they have been living and working in the
United States would be required to be remanded into immigration
detention. Finally, the bill has a specific provision to keep
family units together if the parent is prosecuted under 8
U.S.C. Sec. 1325(a) for improper entry. This is the crime the
Trump administration used as a pretext to separate families in
2018. Because this provision requires family units to stay in
DHS custody while this prosecution is pending, it also seems to
contemplate an unworkable scenario where DHS detention
facilities would be required to have camera access to federal
criminal courts. Further, there is no mention of what occurs if
the parent is sentenced to jail time as a result of
prosecution. The answer is family separation.
The dangers posed by this title are clear. This would lead
to harmful family detention and family separation. As such,
Democrats proposed an amendment that would delay the
implementation of this title until all the families separated
under the Trump administration are reunited. This amendment was
defeated on a party-line vote.
V. H.R. 2640 WOULD STRIP VITAL PROTECTIONS FROM UNACCOMPANIED CHILDREN
Title IV, the so-called ``Protection of Children Act of
2023,'' would subject all unaccompanied children to a summary
removal process that is even worse than the one currently
applicable to unaccompanied children from Mexico. It removes
the current requirement that CBP ensure that a child is capable
of making an independent decision to voluntarily withdraw his
or her application for admission to the country. According to
CBP policy, young children under the age of 14 (also known as
``tender age'') are presumed to be lacking capacity to make an
independent decision to withdraw and therefore CBP transfers
them to ORR custody for further screening and the opportunity
to appear in immigration court.\13\ This rule also currently
applies to children with intellectual disabilities or other
issues which would prevent them from having the capacity to
make an independent decision. Removing this vital protection
will result in the rapid deportation of tender age children and
those with disabilities.
---------------------------------------------------------------------------
\13\Unaccompanied Alien Children: Actions Needed to Ensure Children
Receive Required Care in DHS Custody, U.S. Govn't Accountability Office
(Jul. 14, 2015), https://www.gao.gov/products/gao-15-521.
---------------------------------------------------------------------------
Furthermore, this title would result in the lengthy
detention of many children because it eliminates the current
requirement that DHS transfer children within 72 hours to HHS
custody. This title would also limit the provision of attorneys
to unaccompanied children through federal programs because it
contains a strict prohibition on the use of government funds
for legal counsel. Additionally, it limits crucial protections
like Special Immigrant Juvenile Status visas from certain
children, limiting the legal pathways previously available to
them and increasing the likelihood that they are deported to
abusive situations in their home counties.
This title does nothing to protect children and instead,
every provision would harm children, particularly those in
danger of trafficking. If implemented, this title would result
in the rapid return of a child to his or her country of origin
without an adequate assessment of whether the child has a fear
of persecution or trafficking. For these reasons, Democrats
offered amendments to ensure that children in custody are
transferred within 72 hours to be in the care of child welfare
experts and to allow for government appointed counsel for
unaccompanied children. These amendments were struck down on
party line votes.
VI. H.R. 2640 WOULD SUBJECT INDIVIDUALS WHO OVERSTAY A VISA BY MISTAKE
OR FOR REASONS BEYOND THEIR CONTROL TO CRUEL CRIMINAL PENALTIES
Title V, the ``Visa Overstays Penalties Act,'' would
criminalize overstaying a visa or violating a nonimmigrant
status for an aggregate of 10 or more days. First-time
violators could receive up to 6 months in prison and/or up to
$1,000 fines. Subsequent violations would subject them to 2
years in prison and/or up to $2,000 in fines. The title's text
does not contain a waiver for mistaken violations or violations
that occur due to circumstances that are beyond the
individual's control. The immense breadth of the bill would
lead to cruel consequences--where people who run afoul of the
title's provisions through no fault of their own, including
children, would be subject to imprisonment and fines. To temper
the draconian nature of this title, Democrats offered
amendments to create an exception for those who did not intend
to overstay or violate their status, for those who experienced
a medical emergency which caused them to overstay or violate
their status, and for those in Temporary Protected Status. All
of these amendments were rejected in a party line vote.
VII. H.R. 2640 WOULD DECIMATE THE PAROLE POWER USED BY PRESIDENTS OF
BOTH PARTIES FOR DECADES FOR HUMANITARIAN PURPOSES
Title VI, the ``Immigration Parole Act of 2023,'' would
decimate the parole power used by every president since
Eisenhower. Where presidents historically were able to parole
in individuals in response to humanitarian emergencies or in
furtherance of foreign policy or public interest objectives,
under this bill, such discretion would be severely curtailed.
The changes proposed in the bill would prevent a future
administration from utilizing parole in response to widespread
emergencies, as the Biden Administration did in response to the
fall of Afghanistan and Russia's unprovoked and unwarranted
attack on Ukraine. The Majority picks and chooses winners and
losers between currently existing parole programs, keeping the
Cuban family reunification program, but axing a similar program
for Haitians. It likewise precludes the President's recent
parole programs for Ukrainians, Cubans, Haitians, Nicaraguans,
and Venezuelans.
This provision also pretends to include a provision to
cover the current military parole in place program, however the
version contained in the legislation is far narrower than what
exists in current policy. Title VI also limits the benefits
available to parolees, allowing only paroled spouses and minor
children of active duty servicemembers and Cuban family
reunification parolees to obtain work authorization. All other
parolees, including applicants for adjustment of status, would
no longer be eligible for work authorization under this bill.
Title VI's far-reaching restrictions on the use of parole
also impose extreme statutory limitations on ICE's discretion
to release certain recent entrants, including vulnerable asylum
seekers, from detention. The lengthy detention periods
resulting from ICE's near-universal failure to exercise this
discretion under the previous administration\14\ illustrate the
consequences of eliminating such discretion altogether. The
Homeland Security Advisory Committee, for example, after
examining the practice of detaining asylum-seeking family
units, concluded that, ``the cumulative effect over the course
of longer stays can be and has been devastating for many
families.''\15\
---------------------------------------------------------------------------
\14\Meredith Hoffman, Trump Era Ushers in New Unofficial Policy on
Asylum-Seekers (Apr. 4, 2017) Rolling Stone, available at: http://
www.rollingstone.com/politics/features/trump-era-ushers-in-new-
unofficial-policy-on-asylum-seekers-w473930.
\15\DHS Advisory Committee on Family Residential Centers, ACFRC
Consolidated Draft Subcommittees' Recommendation Report, ``Report of
the DHS Advisory Committee on Family Residential Centers'' (Sep. 30,
2016); https://www.ice.gov/sites/default/files/documents/Report/2016/
ACFRC-sc-16093.pdf.
---------------------------------------------------------------------------
The limitations on parole contained within this title would
serve only to handicap an administration's ability to use all
the tools it traditionally has to respond to humanitarian
emergencies. As such, Democrats proffered numerous amendments
to this title to continue the implementation of the current
Haitian Family Reunification Program, the Uniting for Ukraine
Program, and the Military Parole in Place Program, as well as
to allow adjustment of status applicants to continue to obtain
work authorization. Each amendment was rejected on a party line
basis, but the Majority did indicate its willingness to further
discuss the issue of adjustment of status applicants.
VIII. H.R. 2640 WOULD WRECK THE U.S. ECONOMY, HARM WORKERS, AND COST
THE U.S. GOVERNMENT BILLIONS OF DOLLARS
Title VII, the ``Legal Workforce Act,'' would make the use
of E-Verify mandatory for all employers in the United States.
E-Verify is an electronic employment eligibility verification
system that began as a voluntary pilot program and is currently
used by a small percentage of the nation's employers.
Without providing other reforms, including any meaningful
opportunity for undocumented workers to regularize their
status, this title would damage the U.S. economy, harm American
workers, and result in billions of dollars in lost government
revenue. For example, the Congressional Budget Office (CBO) and
the Joint Committee on Taxation (JCT), in scoring the Legal
Workforce Act in the 113th Congress, concluded that the bill
would have resulted in a net revenue loss to the unified budget
of $39 billion over ten years and increased budget deficits
over that period by about $30 billion.\16\ Contrast that with
CBO and JCT's finding that the comprehensive reform bill which
passed the Senate in 2013 would have reduced budget deficits by
$158 billion over the first ten years and by about $685 billion
over the next ten years.\17\
---------------------------------------------------------------------------
\16\Congressional Budget Office, Cost Estimate, H.R. 1772 (Dec. 17,
2013), http://www.cbo.gov/sites/default/files/cbofiles/attachments/
hr1772.pdf.
\17\Letter from Douglas W. Elmendorf, Director, Congressional
Budget Office, to Hon. Patrick J. Leahy, Chairman, S. Comm. on the
Judiciary (July 3, 2013), http://www.cbo.gov/sites/default/files/
cbofiles/attachments/s744aspassed.pdf.
---------------------------------------------------------------------------
Moreover, as with prior versions of the Legal Workforce
Act, this title has few due process protections for American
workers who are wrongfully denied job opportunities or
terminated as a result of E-Verify errors. The bill would also
likely increase employment discrimination and worker abuse
because of the manner in which it permits E Verify to be used
and the lack of meaningful penalties for employers who abuse
the system.
Our nation's immigration system is in desperate need of
reform, as demonstrated by the 11 million undocumented
immigrants currently living in the United States. Many are here
because the U.S. economy needed their labor, but U.S.
immigration laws did not provide viable pathways for their
legal immigration. Nowhere is this truer than in agriculture,
where 50 percent or more of the labor force is comprised of
undocumented workers.
Mandating the nationwide use of E-Verify, without otherwise
reforming the immigration system, would eliminate an important
labor pool and destabilize agriculture and other industries
that are at least partially dependent on foreign labor.
Mandatory E-Verify would put U.S. farms out of business, ship
millions of American jobs overseas, and increase U.S. reliance
on imported food. Mandatory E-Verify would result in hundreds
of thousands of unfilled farm jobs and would leave unpicked
crops rotting in the fields, as we saw in Georgia in 2011 when
a mandatory E-Verify law in the state resulted in over 11,000
farm jobs going unfilled during peak harvest season.\18\
Workers--both documented and undocumented--were too scared to
go to work, crops were left rotting in the field, and growers
struggled to keep their businesses afloat. It would also
eliminate millions of jobs supported by agriculture.
Farmworkers support about 3.1 million upstream and downstream
jobs for U.S. citizens in the food processing, packaging,
transportation, marketing, and retail sectors, according to the
Department of Agriculture.\19\ The elimination of on-the-farm
jobs through mandatory E-Verify would eliminate three times as
many jobs for U.S. citizens in other sectors.
---------------------------------------------------------------------------
\18\Steven Gray, Convicts or Illegals: Georgia Hunts for
Farmworkers As Tough Immigration Law Takes Hold, TIME, June 26, 2011,
available at http://www.time.com/time/nation/article/
0,8599,2079542,00.html.
\19\Hearing to Review the Labor Needs of American Agriculture:
Hearing Before the H. Comm. on Agriculture, 110th Cong. 16 (2007)
(testimony of James Holt, Agricultural Labor Economist), available at
http://agriculture.house.gov/sites/republicans.agriculture.house.gov/
files/testimony/110/110 30.pdf.
---------------------------------------------------------------------------
Members on both sides of the aisle agree that mandating the
nationwide use of E Verify without any additional reforms or
protections is a dangerous and wrongheaded idea. Representative
Massie (R-KY) joined with Democrats in opposing this title,
supporting a Democratic amendment to strike the title, and he
offered several amendments of his own to address his concerns,
but none of them garnered support from his fellow Republicans.
He voted against final passage of the bill.
Democrats also offered an amendment to delay the
implementation of the expanded E Verify requirements until the
Secretaries of Homeland Security and Agriculture can certify
that it would not cause a significant shortage of agricultural
labor.
IX. CONCLUSION
H.R. 2640 is dangerously flawed legislation that would
wreck our economy, destroy the asylum system, criminalize visa
overstays, send unaccompanied children back to dangerous
situations, and jail children indefinitely. Instead of working
with Democrats on legislation that would fix our broken
immigration system, Republicans are advancing a cruel, extreme,
and unworkable proposal that takes us back to the failed,
illegal, and immoral policies of the Trump administration.
Immigration reform is a complex problem that requires
comprehensive solutions, and an enforcement-only strategy
simply doesn't work. If Republicans were actually concerned
with securing the border, they would work with Democrats to
secure our ports of entry, expand legal pathways for migrants,
and address the root causes of migration. H.R. 2640 is not a
serious solution for our broken immigration system.
For all of these reasons, I dissent, and I urge all of my
colleagues to oppose this legislation.
Jerrold Nadler,
Ranking Member.
[all]