109TH CONGRESS

2D SESSION S. 2611

AN ACT

To provide for comprehensive immigration reform and for

other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Comprehensive Immigration Reform Act of 2006’’.
 †

2

S 2611 ES

1 (b) TABLE OF CONTENTS.—The table of contents for

2 this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Reference to the Immigration and Nationality Act.

Sec. 3. Definitions.

Sec. 4. Severability.

TITLE I—BORDER ENFORCEMENT

Subtitle A—Assets for Controlling United States Borders

Sec. 101. Enforcement personnel.

Sec. 102. Technological assets.

Sec. 103. Infrastructure.

Sec. 104. Border patrol checkpoints.

Sec. 105. Ports of entry.

Sec. 106. Construction of strategic border fencing and vehicle barriers.

Subtitle B—Border Security Plans, Strategies, and Reports

Sec. 111. Surveillance plan.

Sec. 112. National Strategy for Border Security.

Sec. 113. Reports on improving the exchange of information on North American security.

Sec. 114. Improving the security of Mexico’s southern border.

Sec. 115. Combating human smuggling.

Sec. 116. Deaths at United States-Mexico border.

Sec. 117. Cooperation with the Government of Mexico.

Subtitle C—Other Border Security Initiatives

Sec. 121. Biometric data enhancements.

Sec. 122. Secure communication.

Sec. 123. Border patrol training capacity review.

Sec. 124. US–VISIT System.

Sec. 125. Document fraud detection.

Sec. 126. Improved document integrity.

Sec. 127. Cancellation of visas.

Sec. 128. Biometric entry-exit system.

Sec. 129. Border study.

Sec. 130. Secure border initiative financial accountability.

Sec. 131. Mandatory detention for aliens apprehended at or between ports of

entry.

Sec. 132. Evasion of inspection or violation of arrival, reporting, entry, or clearance requirements.

Sec. 133. Temporary National Guard support for securing the southern land

border of the United States.

Sec. 134. Report on incentives to encourage certain members and former members of the Armed Forces to serve in the Bureau of Customs

and Border Protection.

Sec. 135. Western Hemisphere Travel Initiative.

Subtitle D—Border Tunnel Prevention Act

Sec. 141. Short title.
†

3

S 2611 ES

Sec. 142. Construction of border tunnel or passage.

Sec. 143. Directive to the United States Sentencing Commission.

Subtitle E—Border Law Enforcement Relief Act

Sec. 151. Short title.

Sec. 152. Findings.

Sec. 153. Border relief grant program.

Sec. 154. Enforcement of Federal immigration law.

Subtitle F—Rapid Response Measures

Sec. 161. Deployment of Border Patrol agents.

Sec. 162. Border Patrol major assets.

Sec. 163. Electronic equipment.

Sec. 164. Personal equipment.

Sec. 165. Authorization of appropriations.

TITLE II—INTERIOR ENFORCEMENT

Sec. 201. Removal and denial of benefits to terrorist aliens.

Sec. 202. Detention and removal of aliens ordered removed.

Sec. 203. Aggravated felony.

Sec. 204. Terrorist bars.

Sec. 205. Increased criminal penalties related to gang violence, removal, and

alien smuggling.

Sec. 206. Illegal entry.

Sec. 207. Illegal reentry.

Sec. 208. Reform of passport, visa, and immigration fraud offenses.

Sec. 209. Inadmissibility and removal for passport and immigration fraud offenses.

Sec. 210. Incarceration of criminal aliens.

Sec. 211. Encouraging aliens to depart voluntarily.

Sec. 212. Deterring aliens ordered removed from remaining in the United

States unlawfully.

Sec. 213. Prohibition of the sale of firearms to, or the possession of firearms

by certain aliens.

Sec. 214. Uniform statute of limitations for certain immigration, naturalization,

and peonage offenses.

Sec. 215. Diplomatic security service.

Sec. 216. Field agent allocation and background checks.

Sec. 217. Construction.

Sec. 218. State criminal alien assistance program.

Sec. 219. Transportation and processing of illegal aliens apprehended by State

and local law enforcement officers.

Sec. 220. Reducing illegal immigration and alien smuggling on tribal lands.

Sec. 221. Alternatives to detention.

Sec. 222. Conforming amendment.

Sec. 223. Reporting requirements.

Sec. 224. State and local enforcement of Federal immigration laws.

Sec. 225. Removal of drunk drivers.

Sec. 226. Medical services in underserved areas.

Sec. 227. Expedited removal.

Sec. 228. Protecting immigrants from convicted sex offenders.

Sec. 229. Law enforcement authority of States and political subdivisions and

transfer to Federal custody.
†

4

S 2611 ES

Sec. 230. Laundering of monetary instruments.

Sec. 231. Listing of immigration violators in the National Crime Information

Center database.

Sec. 232. Cooperative enforcement programs.

Sec. 233. Increase of Federal detention space and the utilization of facilities

identified for closures as a result of the Defense Base Closure

Realignment Act of 1990.

Sec. 234. Determination of immigration status of individuals charged with Federal offenses.

Sec. 235. Expansion of the Justice Prisoner and Alien Transfer System.

TITLE III—UNLAWFUL EMPLOYMENT OF ALIENS

Sec. 301. Unlawful employment of aliens.

Sec. 302. Employer Compliance Fund.

Sec. 303. Additional worksite enforcement and fraud detection agents.

Sec. 304. Clarification of ineligibility for misrepresentation.

Sec. 305. Antidiscrimination protections.

TITLE IV—NONIMMIGRANT AND IMMIGRANT VISA REFORM

Subtitle A—Temporary Guest Workers

Sec. 401. Immigration impact study.

Sec. 402. Nonimmigrant temporary worker.

Sec. 403. Admission of nonimmigrant temporary guest workers.

Sec. 404. Employer obligations.

Sec. 405. Alien employment management system.

Sec. 406. Rulemaking; effective date.

Sec. 407. Recruitment of United States workers.

Sec. 408. Temporary guest worker visa program task force.

Sec. 409. Requirements for participating countries.

Sec. 410. S visas.

Sec. 411. L visa limitations.

Sec. 412. Compliance investigators.

Sec. 413. VISA waiver program expansion.

Sec. 414. Authorization of appropriations.

Subtitle B—Immigration Injunction Reform

Sec. 421. Short title.

Sec. 422. Appropriate remedies for immigration legislation.

Sec. 423. Effective date.

TITLE V—BACKLOG REDUCTION

Sec. 501. Elimination of existing backlogs.

Sec. 502. Country limits.

Sec. 503. Allocation of immigrant visas.

Sec. 504. Relief for minor children and widows.

Sec. 505. Shortage occupations.

Sec. 506. Relief for widows and orphans.

Sec. 507. Student visas.

Sec. 508. Visas for individuals with advanced degrees.

Sec. 509. Children of Filipino World War II veterans.

Sec. 510. Expedited adjudication of employer petitions for aliens of extraordinary artistic ability.
†

5

S 2611 ES

Sec. 511. Powerline workers.

Sec. 512. Determinations with respect to children under the Haitian Refugee

Immigration Fairness Act of 1998.

Subtitle B—SKIL Act

Sec. 521. Short title.

Sec. 522. H–1B visa holders.

Sec. 523. Market-based visa limits.

Sec. 524. United States educated immigrants.

Sec. 525. Student visa reform.

Sec. 526. L–1 visa holders subject to visa backlog.

Sec. 527. Retaining workers subject to green card backlog.

Sec. 528. Streamlining the adjudication process for established employers.

Sec. 529. Providing premium processing of employment-based visa petitions.

Sec. 530. Eliminating procedural delays in labor certification process.

Sec. 531. Completion of background and security checks.

Sec. 532. Visa revalidation.

Subtitle C—Preservation of Immigration Benefits for Hurricane Katrina

Victims

Sec. 541. Short title.

Sec. 542. Definitions.

Sec. 543. Special immigrant status.

Sec. 544. Extension of filing or reentry deadlines.

Sec. 545. Humanitarian relief for certain surviving spouses and children.

Sec. 546. Recipient of public benefits.

Sec. 547. Age-out protection.

Sec. 548. Employment eligibility verification.

Sec. 549. Naturalization.

Sec. 550. Discretionary authority.

Sec. 551. Evidentiary standards and regulations.

Sec. 552. Identification documents.

Sec. 553. Waiver of regulations.

Sec. 554. Notices of change of address.

Sec. 555. Foreign students and exchange program participants.

TITLE VI—WORK AUTHORIZATION AND LEGALIZATION OF

UNDOCUMENTED INDIVIDUALS

Subtitle A—Access to Earned Adjustment and Mandatory Departure and

Reentry

Sec. 601. Access to earned adjustment and mandatory departure and reentry.

Subtitle B—Agricultural Job Opportunities, Benefits, and Security

Sec. 611. Short title.

Sec. 612. Definitions.

CHAPTER 1—PILOT PROGRAM FOR EARNED STATUS ADJUSTMENT OF

AGRICULTURAL WORKERS

Sec. 613. Agricultural workers.

Sec. 614. Correction of Social Security records.

CHAPTER 2—REFORM OF H–2A WORKER PROGRAM
†

6

S 2611 ES

Sec. 615. Amendment to the Immigration and Nationality Act.

CHAPTER 3—MISCELLANEOUS PROVISIONS

Sec. 616. Determination and use of user fees.

Sec. 617. Regulations.

Sec. 618. Report to Congress.

Sec. 619. Effective date.

Subtitle C—DREAM Act

Sec. 621. Short title.

Sec. 622. Definitions.

Sec. 623. Restoration of State option to determine residency for purposes of

higher education benefits.

Sec. 624. Cancellation of removal and adjustment of status of certain long-term

residents who entered the United States as children.

Sec. 625. Conditional permanent resident status.

Sec. 626. Retroactive benefits.

Sec. 627. Exclusive jurisdiction.

Sec. 628. Penalties for false statements in application.

Sec. 629. Confidentiality of information.

Sec. 630. Expedited processing of applications; prohibition on fees.

Sec. 631. Higher education assistance.

Sec. 632. GAO report.

Subtitle D—Programs To Assist Nonimmigrant Workers

Sec. 641. Ineligibility and removal prior to application period.

Sec. 642. Grants to support public education and community training.

Sec. 643. Strengthening American citizenship.

Sec. 644. Supplemental immigration fee.

Sec. 645. Addressing poverty in Mexico.

TITLE VII—MISCELLANEOUS

Subtitle A—Immigration Litigation Reduction

CHAPTER 1—APPEALS AND REVIEW

Sec. 701. Additional immigration personnel.

CHAPTER 2—IMMIGRATION REVIEW REFORM

Sec. 702. Board of Immigration Appeals.

Sec. 703. Immigration judges.

Sec. 704. Removal and review of judges.

Sec. 705. Legal orientation program.

Sec. 706. Regulations.

Sec. 707. GAO study on the appellate process for immigration appeals.

Sec. 708. Senior judge participation in the selection of magistrates.

Subtitle B—Citizenship Assistance for Members of the Armed Services

Sec. 711. Short title.

Sec. 712. Waiver of requirement for fingerprints for members of the Armed

Forces.
†

7

S 2611 ES

Sec. 713. Provision of information on naturalization to members of the Armed

Forces.

Sec. 714. Provision of information on naturalization to the public.

Sec. 715. Reports.

Subtitle C—State Court Interpreter Grant Program

Sec. 721. Short title.

Sec. 722. Findings.

Sec. 723. State court interpreter program.

Sec. 724. Authorization of appropriations.

Subtitle D—Border Infrastructure and Technology Modernization

Sec. 731. Short title.

Sec. 732. Definitions.

Sec. 733. Port of Entry Infrastructure Assessment Study.

Sec. 734. National Land Border Security Plan.

Sec. 735. Expansion of commerce security programs.

Sec. 736. Port of entry technology demonstration program.

Sec. 737. Authorization of appropriations.

Subtitle E—Family Humanitarian Relief

Sec. 741. Short title.

Sec. 742. Adjustment of status for certain nonimmigrant victims of terrorism.

Sec. 743. Cancellation of removal for certain immigrant victims of terrorism.

Sec. 744. Exceptions.

Sec. 745. Evidence of death.

Sec. 746. Definitions.

Subtitle F—Other Matters

Sec. 751. Noncitizen membership in the Armed Forces.

Sec. 752. Nonimmigrant alien status for certain athletes.

Sec. 753. Extension of returning worker exemption.

Sec. 754. Surveillance technologies programs.

Sec. 755. Comprehensive immigration efficiency review.

Sec. 756. Northern Border Prosecution Initiative.

Sec. 757. Southwest Border Prosecution Initiative.

Sec. 758. Grant program to assist eligible applicants.

Sec. 759. Screening of municipal solid waste.

Sec. 760. Access to immigration services in areas that are not accessible by

road.

Sec. 761. Border security on certain Federal land.

Sec. 762. Unmanned aerial vehicles.

Sec. 763. Relief for widows and orphans.

Sec. 764. Terrorist activities.

Sec. 765. Family unity.

Sec. 766. Travel document plan.

Sec. 767. English as national language.

Sec. 768. Requirements for naturalization.

Sec. 769. Declaration of English.

Sec. 770. Preserving and enhancing the role of the English language.

Sec. 771. Exclusion of illegal aliens from congressional apportionment tabulations.

Sec. 772. Office of Internal Corruption Investigation.
†

8

S 2611 ES

Sec. 773. Adjustment of status for certain persecuted religious minorities.

Sec. 774. Eligibility of agricultural and forestry workers for certain legal assistance.

Sec. 775. Designation of program countries.

Sec. 776. Global healthcare cooperation.

Sec. 777. Attestation by healthcare workers.

Sec. 778. Public access to the Statue of Liberty.

Sec. 779. National security determination.

TITLE VIII—INTERCOUNTRY ADOPTION REFORM

Sec. 801. Short title.

Sec. 802. Findings; purposes.

Sec. 803. Definitions.

Subtitle A—Administration of Intercountry Adoptions

Sec. 811. Office of Intercountry Adoptions.

Sec. 812. Recognition of convention adoptions in the United States.

Sec. 813. Technical and conforming amendment.

Sec. 814. Transfer of functions.

Sec. 815. Transfer of resources.

Sec. 816. Incidental transfers.

Sec. 817. Savings provisions.

Subtitle B—Reform of United States Laws Governing Intercountry Adoptions

Sec. 821. Automatic acquisition of citizenship for adopted children born outside

the United States.

Sec. 822. Revised procedures.

Sec. 823. Nonimmigrant visas for children traveling to the United States to be

adopted by a United States citizen.

Sec. 824. Definition of adoptable child.

Sec. 825. Approval to adopt.

Sec. 826. Adjudication of child status.

Sec. 827. Funds.

Subtitle C—Enforcement

Sec. 831. Civil penalties and enforcement.

Sec. 832. Criminal penalties.

1 SEC. 2. REFERENCE TO THE IMMIGRATION AND NATION2 ALITY ACT.

3 Except as otherwise expressly provided, whenever in

4 this Act an amendment or repeal is expressed in terms

5 of an amendment to, or repeal of, a section or other provi6 sion, the reference shall be considered to be made to a
†

9

S 2611 ES

1 section or other provision of the Immigration and Nation2 ality Act (8 U.S.C. 1101 et seq.).

3 SEC. 3. DEFINITIONS.

4 In this Act:

5 (1) DEPARTMENT.—Except as otherwise pro6 vided, the term ‘‘Department’’ means the Depart7 ment of Homeland Security.

8 (2) SECRETARY.—Except as otherwise provided,

9 the term ‘‘Secretary’’ means the Secretary of Home10 land Security.

11 SEC. 4. SEVERABILITY.

12 If any provision of this Act, any amendment made

13 by this Act, or the application of such provision or amend14 ment to any person or circumstance is held to be invalid

15 for any reason, the remainder of this Act, the amendments

16 made by this Act, and the application of the provisions

17 of such to any other person or circumstance shall not be

18 affected by such holding.

19 TITLE I—BORDER

20 ENFORCEMENT

21 Subtitle A—Assets for Controlling

22 United States Borders

23 SEC. 101. ENFORCEMENT PERSONNEL.

24 (a) ADDITIONAL PERSONNEL.—
†

10

S 2611 ES

1 (1) PORT OF ENTRY INSPECTORS.—In each of

2 the fiscal years 2007 through 2011, the Secretary

3 shall, subject to the availability of appropriations, in4 crease by not less than 500 the number of positions

5 for full-time active duty port of entry inspectors and

6 provide appropriate training, equipment, and sup7 port to such additional inspectors.

8 (2) INVESTIGATIVE PERSONNEL.—

9 (A) IMMIGRATION AND CUSTOMS EN10 FORCEMENT INVESTIGATORS.—Section 5203 of

11 the Intelligence Reform and Terrorism Preven12 tion Act of 2004 (Public Law 108–458; 118

13 Stat. 3734) is amended by striking ‘‘800’’ and

14 inserting ‘‘1000’’.

15 (B) ADDITIONAL PERSONNEL.—In addi16 tion to the positions authorized under section

17 5203 of the Intelligence Reform and Terrorism

18 Prevention Act of 2004, as amended by sub19 paragraph (A), during each of the fiscal years

20 2007 through 2011, the Secretary shall, subject

21 to the availability of appropriations, increase by

22 not less than 200 the number of positions for

23 personnel within the Department assigned to

24 investigate alien smuggling.
†

11

S 2611 ES

1 (3) DEPUTY UNITED STATES MARSHALS.—In

2 each of the fiscal years 2007 through 2011, the At3 torney General shall, subject to the availability of

4 appropriations, increase by not less than 50 the

5 number of positions for full-time active duty Deputy

6 United States Marshals that investigate criminal

7 matters related to immigration.

8 (4) RECRUITMENT OF FORMER MILITARY PER9 SONNEL.—

10 (A) IN GENERAL.—The Commissioner of

11 United States Customs and Border Protection,

12 in conjunction with the Secretary of Defense or

13 a designee of the Secretary of Defense, shall es14 tablish a program to actively recruit members

15 of the Army, Navy, Air Force, Marine Corps,

16 and Coast Guard who have elected to separate

17 from active duty.

18 (B) REPORT.—Not later than 180 days

19 after the date of the enactment of this Act, the

20 Commissioner shall submit a report on the im21 plementation of the recruitment program estab22 lished pursuant to subparagraph (A) to the

23 Committee on the Judiciary of the Senate and

24 the Committee on the Judiciary of the House of

25 Representatives.
†

12

S 2611 ES

1 (b) AUTHORIZATION OF APPROPRIATIONS.—

2 (1) PORT OF ENTRY INSPECTORS.—There are

3 authorized to be appropriated to the Secretary such

4 sums as may be necessary for each of the fiscal

5 years 2007 through 2011 to carry out paragraph (1)

6 of subsection (a).

7 (2) DEPUTY UNITED STATES MARSHALS.—

8 There are authorized to be appropriated to the At9 torney General such sums as may be necessary for

10 each of the fiscal years 2007 through 2011 to carry

11 out subsection (a)(3).

12 (3) BORDER PATROL AGENTS.—Section 5202 of

13 the Intelligence Reform and Terrorism Prevention

14 Act of 2004 (118 Stat. 3734) is amended to read as

15 follows:

16 ‘‘SEC. 5202. INCREASE IN FULL-TIME BORDER PATROL

17 AGENTS.

18 ‘‘(a) ANNUAL INCREASES.—The Secretary of Home19 land Security shall, subject to the availability of appropria20 tions for such purpose, increase the number of positions

21 for full-time active-duty border patrol agents within the

22 Department of Homeland Security (above the number of

23 such positions for which funds were appropriated for the

24 preceding fiscal year), by—

25 ‘‘(1) 2,000 in fiscal year 2006;
†

13

S 2611 ES

1 ‘‘(2) 2,400 in fiscal year 2007;

2 ‘‘(3) 2,400 in fiscal year 2008;

3 ‘‘(4) 2,400 in fiscal year 2009;

4 ‘‘(5) 2,400 in fiscal year 2010; and

5 ‘‘(6) 2,400 in fiscal year 2011;

6 ‘‘(b) NORTHERN BORDER.—In each of the fiscal

7 years 2006 through 2011, in addition to the border patrol

8 agents assigned along the northern border of the United

9 States during the previous fiscal year, the Secretary shall

10 assign a number of border patrol agents equal to not less

11 than 20 percent of the net increase in border patrol agents

12 during each such fiscal year.

13 ‘‘(c) AUTHORIZATION OF APPROPRIATIONS.—There

14 are authorized to be appropriated such sums as may be

15 necessary for each of fiscal years 2007 through 2011 to

16 carry out this section.’’.

17 SEC. 102. TECHNOLOGICAL ASSETS.

18 (a) ACQUISITION.—Subject to the availability of ap19 propriations, the Secretary shall procure additional un20 manned aerial vehicles, cameras, poles, sensors, and other

21 technologies necessary to achieve operational control of the

22 international borders of the United States and to establish

23 a security perimeter known as a ‘‘virtual fence’’ along such

24 international borders to provide a barrier to illegal immi25 gration.
†

14

S 2611 ES

1 (b) INCREASED AVAILABILITY OF EQUIPMENT.—The

2 Secretary and the Secretary of Defense shall develop and

3 implement a plan to use authorities provided to the Sec4 retary of Defense under chapter 18 of title 10, United

5 States Code, to increase the availability and use of Depart6 ment of Defense equipment, including unmanned aerial

7 vehicles, tethered aerostat radars, and other surveillance

8 equipment, to assist the Secretary in carrying out surveil9 lance activities conducted at or near the international land

10 borders of the United States to prevent illegal immigra11 tion.

12 (c) REPORT.—Not later than 6 months after the date

13 of enactment of this Act, the Secretary and the Secretary

14 of Defense shall submit to Congress a report that

15 contains—

16 (1) a description of the current use of Depart17 ment of Defense equipment to assist the Secretary

18 in carrying out surveillance of the international land

19 borders of the United States and assessment of the

20 risks to citizens of the United States and foreign

21 policy interests associated with the use of such

22 equipment;

23 (2) the plan developed under subsection (b) to

24 increase the use of Department of Defense equip25 ment to assist such surveillance activities; and
†

15

S 2611 ES

1 (3) a description of the types of equipment and

2 other support to be provided by the Secretary of De3 fense under such plan during the 1-year period be4 ginning on the date of the submission of the report.

5 (d) AUTHORIZATION OF APPROPRIATIONS.—There

6 are authorized to be appropriated to the Secretary such

7 sums as may be necessary for each of the fiscal years 2007

8 through 2011 to carry out subsection (a).

9 (e) UNMANNED AERIAL VEHICLE PILOT PRO10 GRAM.—During the 1-year period beginning on the date

11 on which the report is submitted under subsection (c), the

12 Secretary shall conduct a pilot program to test unmanned

13 aerial vehicles for border surveillance along the inter14 national border between Canada and the United States.

15 (f) CONSTRUCTION.—Nothing in this section may be

16 construed as altering or amending the prohibition on the

17 use of any part of the Army or the Air Force as a posse

18 comitatus under section 1385 of title 18, United States

19 Code.

20 SEC. 103. INFRASTRUCTURE.

21 (a) CONSTRUCTION OF BORDER CONTROL FACILI22 TIES.—Subject to the availability of appropriations, the

23 Secretary shall construct all-weather roads and acquire

24 additional vehicle barriers and facilities necessary to
†

16

S 2611 ES

1 achieve operational control of the international borders of

2 the United States.

3 (b) AUTHORIZATION OF APPROPRIATIONS.—There

4 are authorized to be appropriated to the Secretary such

5 sums as may be necessary for each of the fiscal years 2007

6 through 2011 to carry out subsection (a).

7 SEC. 104. BORDER PATROL CHECKPOINTS.

8 The Secretary may maintain temporary or permanent

9 checkpoints on roadways in border patrol sectors that are

10 located in proximity to the international border between

11 the United States and Mexico.

12 SEC. 105. PORTS OF ENTRY.

13 The Secretary is authorized to—

14 (1) construct additional ports of entry along the

15 international land borders of the United States, at

16 locations to be determined by the Secretary; and

17 (2) make necessary improvements to the ports

18 of entry in existence on the date of the enactment

19 of this Act.

20 SEC. 106. CONSTRUCTION OF STRATEGIC BORDER FENC21 ING AND VEHICLE BARRIERS.

22 (a) TUCSON SECTOR.—The Secretary shall—

23 (1) replace all aged, deteriorating, or damaged

24 primary fencing in the Tucson Sector located proxi25 mate to population centers in Douglas, Nogales,
†

17

S 2611 ES

1 Naco, and Lukeville, Arizona with double- or triple2 layered fencing running parallel to the international

3 border between the United States and Mexico;

4 (2) extend the double- or triple-layered fencing

5 for a distance of not less than 2 miles beyond urban

6 areas, except that the double- or triple-layered fence

7 shall extend west of Naco, Arizona, for a distance of

8 10 miles; and

9 (3) construct not less than 150 miles of vehicle

10 barriers and all-weather roads in the Tucson Sector

11 running parallel to the international border between

12 the United States and Mexico in areas that are

13 known transit points for illegal cross-border traffic.

14 (b) YUMA SECTOR.—The Secretary shall—

15 (1) replace all aged, deteriorating, or damaged

16 primary fencing in the Yuma Sector located proxi17 mate to population centers in Yuma, Somerton, and

18 San Luis, Arizona with double- or triple-layered

19 fencing running parallel to the international border

20 between the United States and Mexico;

21 (2) extend the double- or triple-layered fencing

22 for a distance of not less than 2 miles beyond urban

23 areas in the Yuma Sector; and

24 (3) construct not less than 50 miles of vehicle

25 barriers and all-weather roads in the Yuma Sector
†

18

S 2611 ES

1 running parallel to the international border between

2 the United States and Mexico in areas that are

3 known transit points for illegal cross-border traffic.

4 (c) OTHER HIGH TRAFFICKED AREAS.—The Sec5 retary shall construct not less than 370 miles of triple6 layered fencing which may include portions already con7 structed in San Diego Tucson and Yuma Sectors, and 500

8 miles of vehicle barriers in other areas along the southwest

9 border that the Secretary determines are areas that are

10 most often used by smugglers and illegal aliens attempting

11 to gain illegal entry into the United States.

12 (d) CONSTRUCTION DEADLINE.—The Secretary shall

13 immediately commence construction of the fencing, bar14 riers, and roads described in subsections (a), (b), and (c)

15 and shall complete such construction not later than 2

16 years after the date of the enactment of this Act.

17 (e) REPORT.—Not later than 1 year after the date

18 of the enactment of this Act, the Secretary shall submit

19 a report to the Committee on the Judiciary of the Senate

20 and the Committee on the Judiciary of the House of Rep21 resentatives that describes the progress that has been

22 made in constructing the fencing, barriers, and roads de23 scribed in subsections (a), (b), and (c).
†

19

S 2611 ES

1 (f) AUTHORIZATION OF APPROPRIATIONS.—There

2 are authorized to be appropriated such sums as may be

3 necessary to carry out this section.

4 Subtitle B—Border Security Plans,

5 Strategies, and Reports

6 SEC. 111. SURVEILLANCE PLAN.

7 (a) REQUIREMENT FOR PLAN.—The Secretary shall

8 develop a comprehensive plan for the systematic surveil9 lance of the international land and maritime borders of

10 the United States.

11 (b) CONTENT.—The plan required by subsection (a)

12 shall include the following:

13 (1) An assessment of existing technologies em14 ployed on the international land and maritime bor15 ders of the United States.

16 (2) A description of the compatibility of new

17 surveillance technologies with surveillance tech18 nologies in use by the Secretary on the date of the

19 enactment of this Act.

20 (3) A description of how the Commissioner of

21 the United States Customs and Border Protection of

22 the Department is working, or is expected to work,

23 with the Under Secretary for Science and Tech24 nology of the Department to identify and test sur25 veillance technology.
†

20

S 2611 ES

1 (4) A description of the specific surveillance

2 technology to be deployed.

3 (5) Identification of any obstacles that may im4 pede such deployment.

5 (6) A detailed estimate of all costs associated

6 with such deployment and with continued mainte7 nance of such technologies.

8 (7) A description of how the Secretary is work9 ing with the Administrator of the Federal Aviation

10 Administration on safety and airspace control issues

11 associated with the use of unmanned aerial vehicles.

12 (c) SUBMISSION TO CONGRESS.—Not later than 6

13 months after the date of the enactment of this Act, the

14 Secretary shall submit to Congress the plan required by

15 this section.

16 SEC. 112. NATIONAL STRATEGY FOR BORDER SECURITY.

17 (a) REQUIREMENT FOR STRATEGY.—The Secretary,

18 in consultation with the heads of other appropriate Fed19 eral agencies, shall develop a National Strategy for Border

20 Security that describes actions to be carried out to achieve

21 operational control over all ports of entry into the United

22 States and the international land and maritime borders

23 of the United States.

24 (b) CONTENT.—The National Strategy for Border

25 Security shall include the following:
†

21

S 2611 ES

1 (1) The implementation schedule for the com2 prehensive plan for systematic surveillance described

3 in section 111.

4 (2) An assessment of the threat posed by ter5 rorists and terrorist groups that may try to infiltrate

6 the United States at locations along the inter7 national land and maritime borders of the United

8 States.

9 (3) A risk assessment for all United States

10 ports of entry and all portions of the international

11 land and maritime borders of the United States that

12 includes a description of activities being

13 undertaken—

14 (A) to prevent the entry of terrorists, other

15 unlawful aliens, instruments of terrorism, nar16 cotics, and other contraband into the United

17 States; and

18 (B) to protect critical infrastructure at or

19 near such ports of entry or borders.

20 (4) An assessment of the legal requirements

21 that prevent achieving and maintaining operational

22 control over the entire international land and mari23 time borders of the United States.

24 (5) An assessment of the most appropriate,

25 practical, and cost-effective means of defending the
†

22

S 2611 ES

1 international land and maritime borders of the

2 United States against threats to security and illegal

3 transit, including intelligence capacities, technology,

4 equipment, personnel, and training needed to ad5 dress security vulnerabilities.

6 (6) An assessment of staffing needs for all bor7 der security functions, taking into account threat

8 and vulnerability information pertaining to the bor9 ders and the impact of new security programs, poli10 cies, and technologies.

11 (7) A description of the border security roles

12 and missions of Federal, State, regional, local, and

13 tribal authorities, and recommendations regarding

14 actions the Secretary can carry out to improve co15 ordination with such authorities to enable border se16 curity and enforcement activities to be carried out in

17 a more efficient and effective manner.

18 (8) An assessment of existing efforts and tech19 nologies used for border security and the effect of

20 the use of such efforts and technologies on civil

21 rights, personal property rights, privacy rights, and

22 civil liberties, including an assessment of efforts to

23 take into account asylum seekers, trafficking vic24 tims, unaccompanied minor aliens, and other vulner25 able populations.
†

23

S 2611 ES

1 (9) A prioritized list of research and develop2 ment objectives to enhance the security of the inter3 national land and maritime borders of the United

4 States.

5 (10) A description of ways to ensure that the

6 free flow of travel and commerce is not diminished

7 by efforts, activities, and programs aimed at secur8 ing the international land and maritime borders of

9 the United States.

10 (11) An assessment of additional detention fa11 cilities and beds that are needed to detain unlawful

12 aliens apprehended at United States ports of entry

13 or along the international land borders of the United

14 States.

15 (12) A description of the performance metrics

16 to be used to ensure accountability by the bureaus

17 of the Department in implementing such Strategy.

18 (13) A schedule for the implementation of the

19 security measures described in such Strategy, includ20 ing a prioritization of security measures, realistic

21 deadlines for addressing the security and enforce22 ment needs, an estimate of the resources needed to

23 carry out such measures, and a description of how

24 such resources should be allocated.
†

24

S 2611 ES

1 (c) CONSULTATION.—In developing the National

2 Strategy for Border Security, the Secretary shall consult

3 with representatives of—

4 (1) State, local, and tribal authorities with re5 sponsibility for locations along the international land

6 and maritime borders of the United States; and

7 (2) appropriate private sector entities, non8 governmental organizations, and affected commu9 nities that have expertise in areas related to border

10 security.

11 (d) COORDINATION.—The National Strategy for Bor12 der Security shall be consistent with the National Strategy

13 for Maritime Security developed pursuant to Homeland

14 Security Presidential Directive 13, dated December 21,

15 2004.

16 (e) SUBMISSION TO CONGRESS.—

17 (1) STRATEGY.—Not later than 1 year after the

18 date of the enactment of this Act, the Secretary

19 shall submit to Congress the National Strategy for

20 Border Security.

21 (2) UPDATES.—The Secretary shall submit to

22 Congress any update of such Strategy that the Sec23 retary determines is necessary, not later than 30

24 days after such update is developed.
†

25

S 2611 ES

1 (f) IMMEDIATE ACTION.—Nothing in this section or

2 section 111 may be construed to relieve the Secretary of

3 the responsibility to take all actions necessary and appro4 priate to achieve and maintain operational control over the

5 entire international land and maritime borders of the

6 United States.

7 SEC. 113. REPORTS ON IMPROVING THE EXCHANGE OF IN8 FORMATION ON NORTH AMERICAN SECU9 RITY.

10 (a) REQUIREMENT FOR REPORTS.—Not later than 1

11 year after the date of the enactment of this Act, and annu12 ally thereafter, the Secretary of State, in coordination with

13 the Secretary and the heads of other appropriate Federal

14 agencies, shall submit to Congress a report on improving

15 the exchange of information related to the security of

16 North America.

17 (b) CONTENTS.—Each report submitted under sub18 section (a) shall contain a description of the following:

19 (1) SECURITY CLEARANCES AND DOCUMENT IN20 TEGRITY.—The progress made toward the develop21 ment of common enrollment, security, technical, and

22 biometric standards for the issuance, authentication,

23 validation, and repudiation of secure documents,

24 including—
†

26

S 2611 ES

1 (A) technical and biometric standards

2 based on best practices and consistent with

3 international standards for the issuance, au4 thentication, validation, and repudiation of trav5 el documents, including—

6 (i) passports;

7 (ii) visas; and

8 (iii) permanent resident cards;

9 (B) working with Canada and Mexico to

10 encourage foreign governments to enact laws to

11 combat alien smuggling and trafficking, and

12 laws to forbid the use and manufacture of

13 fraudulent travel documents and to promote in14 formation sharing;

15 (C) applying the necessary pressures and

16 support to ensure that other countries meet

17 proper travel document standards and are com18 mitted to travel document verification before

19 the citizens of such countries travel internation20 ally, including travel by such citizens to the

21 United States; and

22 (D) providing technical assistance for the

23 development and maintenance of a national

24 database built upon identified best practices for
†

27

S 2611 ES

1 biometrics associated with visa and travel docu2 ments.

3 (2) IMMIGRATION AND VISA MANAGEMENT.—

4 The progress of efforts to share information regard5 ing high-risk individuals who may attempt to enter

6 Canada, Mexico, or the United States, including the

7 progress made—

8 (A) in implementing the Statement of Mu9 tual Understanding on Information Sharing,

10 signed by Canada and the United States in

11 February 2003; and

12 (B) in identifying trends related to immi13 gration fraud, including asylum and document

14 fraud, and to analyze such trends.

15 (3) VISA POLICY COORDINATION AND IMMIGRA16 TION SECURITY.—The progress made by Canada,

17 Mexico, and the United States to enhance the secu18 rity of North America by cooperating on visa policy

19 and identifying best practices regarding immigration

20 security, including the progress made—

21 (A) in enhancing consultation among offi22 cials who issue visas at the consulates or em23 bassies of Canada, Mexico, or the United States

24 throughout the world to share information,

25 trends, and best practices on visa flows;
†

28

S 2611 ES

1 (B) in comparing the procedures and poli2 cies of Canada and the United States related to

3 visitor visa processing, including—

4 (i) application process;

5 (ii) interview policy;

6 (iii) general screening procedures;

7 (iv) visa validity;

8 (v) quality control measures; and

9 (vi) access to appeal or review;

10 (C) in exploring methods for Canada, Mex11 ico, and the United States to waive visa re12 quirements for nationals and citizens of the

13 same foreign countries;

14 (D) in providing technical assistance for

15 the development and maintenance of a national

16 database built upon identified best practices for

17 biometrics associated with immigration viola18 tors;

19 (E) in developing and implementing an im20 migration security strategy for North America

21 that works toward the development of a com22 mon security perimeter by enhancing technical

23 assistance for programs and systems to support

24 advance automated reporting and risk targeting

25 of international passengers;
†

29

S 2611 ES

1 (F) in sharing information on lost and sto2 len passports on a real-time basis among immi3 gration or law enforcement officials of Canada,

4 Mexico, and the United States; and

5 (G) in collecting 10 fingerprints from each

6 individual who applies for a visa.

7 (4) NORTH AMERICAN VISITOR OVERSTAY PRO8 GRAM.—The progress made by Canada and the

9 United States in implementing parallel entry-exit

10 tracking systems that, while respecting the privacy

11 laws of both countries, share information regarding

12 third country nationals who have overstayed their

13 period of authorized admission in either Canada or

14 the United States.

15 (5) TERRORIST WATCH LISTS.—The progress

16 made in enhancing the capacity of the United States

17 to combat terrorism through the coordination of

18 counterterrorism efforts, including the progress

19 made—

20 (A) in developing and implementing bilat21 eral agreements between Canada and the

22 United States and between Mexico and the

23 United States to govern the sharing of terrorist

24 watch list data and to comprehensively enu-
†

30

S 2611 ES

1 merate the uses of such data by the govern2 ments of each country;

3 (B) in establishing appropriate linkages

4 among Canada, Mexico, and the United States

5 Terrorist Screening Center; and

6 (C) in exploring with foreign governments

7 the establishment of a multilateral watch list

8 mechanism that would facilitate direct coordina9 tion between the country that identifies an indi10 vidual as an individual included on a watch list,

11 and the country that owns such list, including

12 procedures that satisfy the security concerns

13 and are consistent with the privacy and other

14 laws of each participating country.

15 (6) MONEY LAUNDERING, CURRENCY SMUG16 GLING, AND ALIEN SMUGGLING.—The progress made

17 in improving information sharing and law enforce18 ment cooperation in combating organized crime, in19 cluding the progress made—

20 (A) in combating currency smuggling,

21 money laundering, alien smuggling, and traf22 ficking in alcohol, firearms, and explosives;

23 (B) in implementing the agreement be24 tween Canada and the United States known as

25 the Firearms Trafficking Action Plan;
†

31

S 2611 ES

1 (C) in determining the feasibility of formu2 lating a firearms trafficking action plan be3 tween Mexico and the United States;

4 (D) in developing a joint threat assessment

5 on organized crime between Canada and the

6 United States;

7 (E) in determining the feasibility of formu8 lating a joint threat assessment on organized

9 crime between Mexico and the United States;

10 (F) in developing mechanisms to exchange

11 information on findings, seizures, and capture

12 of individuals transporting undeclared currency;

13 and

14 (G) in developing and implementing a plan

15 to combat the transnational threat of illegal

16 drug trafficking.

17 (7) LAW ENFORCEMENT COOPERATION.—The

18 progress made in enhancing law enforcement co19 operation among Canada, Mexico, and the United

20 States through enhanced technical assistance for the

21 development and maintenance of a national database

22 built upon identified best practices for biometrics as23 sociated with known and suspected criminals or ter24 rorists, including exploring the formation of law en25 forcement teams that include personnel from the
†

32

S 2611 ES

1 United States and Mexico, and appropriate proce2 dures for such teams.

3 SEC. 114. IMPROVING THE SECURITY OF MEXICO’S SOUTH4 ERN BORDER.

5 (a) TECHNICAL ASSISTANCE.—The Secretary of

6 State, in coordination with the Secretary, shall work to

7 cooperate with the head of Foreign Affairs Canada and

8 the appropriate officials of the Government of Mexico to

9 establish a program—

10 (1) to assess the specific needs of Guatemala

11 and Belize in maintaining the security of the inter12 national borders of such countries;

13 (2) to use the assessment made under para14 graph (1) to determine the financial and technical

15 support needed by Guatemala and Belize from Can16 ada, Mexico, and the United States to meet such

17 needs;

18 (3) to provide technical assistance to Guatemala

19 and Belize to promote issuance of secure passports

20 and travel documents by such countries; and

21 (4) to encourage Guatemala and Belize—

22 (A) to control alien smuggling and traf23 ficking;

24 (B) to prevent the use and manufacture of

25 fraudulent travel documents; and
†

33

S 2611 ES

1 (C) to share relevant information with

2 Mexico, Canada, and the United States.

3 (b) BORDER SECURITY FOR BELIZE, GUATEMALA,

4 AND MEXICO.—The Secretary, in consultation with the

5 Secretary of State, shall work to cooperate—

6 (1) with the appropriate officials of the Govern7 ment of Guatemala and the Government of Belize to

8 provide law enforcement assistance to Guatemala

9 and Belize that specifically addresses immigration

10 issues to increase the ability of the Government of

11 Guatemala to dismantle human smuggling organiza12 tions and gain additional control over the inter13 national border between Guatemala and Belize; and

14 (2) with the appropriate officials of the Govern15 ment of Belize, the Government of Guatemala, the

16 Government of Mexico, and the governments of

17 neighboring contiguous countries to establish a pro18 gram to provide needed equipment, technical assist19 ance, and vehicles to manage, regulate, and patrol

20 the international borders between Mexico and Guate21 mala and between Mexico and Belize.

22 (c) TRACKING CENTRAL AMERICAN GANGS.—The

23 Secretary of State, in coordination with the Secretary and

24 the Director of the Federal Bureau of Investigation, shall

25 work to cooperate with the appropriate officials of the
†

34

S 2611 ES

1 Government of Mexico, the Government of Guatemala, the

2 Government of Belize, and the governments of other Cen3 tral American countries—

4 (1) to assess the direct and indirect impact on

5 the United States and Central America of deporting

6 violent criminal aliens;

7 (2) to establish a program and database to

8 track individuals involved in Central American gang

9 activities;

10 (3) to develop a mechanism that is acceptable

11 to the governments of Belize, Guatemala, Mexico,

12 the United States, and other appropriate countries

13 to notify such a government if an individual sus14 pected of gang activity will be deported to that coun15 try prior to the deportation and to provide support

16 for the reintegration of such deportees into that

17 country; and

18 (4) to develop an agreement to share all rel19 evant information related to individuals connected

20 with Central American gangs.

21 (d) LIMITATIONS ON ASSISTANCE.—Any funds made

22 available to carry out this section shall be subject to the

23 limitations contained in section 551 of the Foreign Oper24 ations, Export Financing, and Related Programs Appro-
†

35

S 2611 ES

1 priations Act of 2006 (Public Law 109–102; 119 Stat.

2 2218).

3 SEC. 115. COMBATING HUMAN SMUGGLING.

4 (a) REQUIREMENT FOR PLAN.—The Secretary shall

5 develop and implement a plan to improve coordination be6 tween the Bureau of Immigration and Customs Enforce7 ment and the Bureau of Customs and Border Protection

8 of the Department and any other Federal, State, local,

9 or tribal authorities, as determined appropriate by the

10 Secretary, to improve coordination efforts to combat

11 human smuggling.

12 (b) CONTENT.—In developing the plan required by

13 subsection (a), the Secretary shall consider—

14 (1) the interoperability of databases utilized to

15 prevent human smuggling;

16 (2) adequate and effective personnel training;

17 (3) methods and programs to effectively target

18 networks that engage in such smuggling;

19 (4) effective utilization of—

20 (A) visas for victims of trafficking and

21 other crimes; and

22 (B) investigatory techniques, equipment,

23 and procedures that prevent, detect, and pros24 ecute international money laundering and other

25 operations that are utilized in smuggling;
†

36

S 2611 ES

1 (5) joint measures, with the Secretary of State,

2 to enhance intelligence sharing and cooperation with

3 foreign governments whose citizens are preyed on by

4 human smugglers; and

5 (6) other measures that the Secretary considers

6 appropriate to combating human smuggling.

7 (c) REPORT.—Not later than 1 year after imple8 menting the plan described in subsection (a), the Sec9 retary shall submit to Congress a report on such plan, in10 cluding any recommendations for legislative action to im11 prove efforts to combating human smuggling.

12 (d) SAVINGS PROVISION.—Nothing in this section

13 may be construed to provide additional authority to any

14 State or local entity to enforce Federal immigration laws.

15 SEC. 116. DEATHS AT UNITED STATES-MEXICO BORDER.

16 (a) COLLECTION OF STATISTICS.—The Commis17 sioner of the Bureau of Customs and Border Protection

18 shall collect statistics relating to deaths occurring at the

19 border between the United States and Mexico, including—

20 (1) the causes of the deaths; and

21 (2) the total number of deaths.

22 (b) REPORT.—Not later than 1 year after the date

23 of enactment of this Act, and annually thereafter, the

24 Commissioner of the Bureau of Customs and Border Pro25 tection shall submit to the Secretary a report that—
†

37

S 2611 ES

1 (1) analyzes trends with respect to the statistics

2 collected under subsection (a) during the preceding

3 year; and

4 (2) recommends actions to reduce the deaths

5 described in subsection (a).

6 SEC. 117. COOPERATION WITH THE GOVERNMENT OF MEX7 ICO.

8 (a) COOPERATION REGARDING BORDER SECU9 RITY.—The Secretary of State, in cooperation with the

10 Secretary and representatives of Federal, State, and local

11 law enforcement agencies that are involved in border secu12 rity and immigration enforcement efforts, shall work with

13 the appropriate officials from the Government of Mexico

14 to improve coordination between the United States and

15 Mexico regarding—

16 (1) improved border security along the inter17 national border between the United States and Mex18 ico;

19 (2) the reduction of human trafficking and

20 smuggling between the United States and Mexico;

21 (3) the reduction of drug trafficking and smug22 gling between the United States and Mexico;

23 (4) the reduction of gang membership in the

24 United States and Mexico;
†

38

S 2611 ES

1 (5) the reduction of violence against women in

2 the United States and Mexico; and

3 (6) the reduction of other violence and criminal

4 activity.

5 (b) COOPERATION REGARDING EDUCATION ON IMMI6 GRATION LAWS.—The Secretary of State, in cooperation

7 with other appropriate Federal officials, shall work with

8 the appropriate officials from the Government of Mexico

9 to carry out activities to educate citizens and nationals

10 of Mexico regarding eligibility for status as a non11 immigrant under Federal law to ensure that the citizens

12 and nationals are not exploited while working in the

13 United States.

14 (c) COOPERATION REGARDING CIRCULAR MIGRA15 TION.—The Secretary of State, in cooperation with the

16 Secretary of Labor and other appropriate Federal offi17 cials, shall work with the appropriate officials from the

18 Government of Mexico to improve coordination between

19 the United States and Mexico to encourage circular migra20 tion, including assisting in the development of economic

21 opportunities and providing job training for citizens and

22 nationals in Mexico.

23 (d) CONSULTATION REQUIREMENT.—Federal, State,

24 and local representatives in the United States shall consult

25 with their counterparts in Mexico concerning the construc-
†

39

S 2611 ES

1 tion of additional fencing and related border security

2 structures along the international border between the

3 United States and Mexico, as authorized by this title, be4 fore the commencement of any such construction in order

5 to—

6 (1) solicit the views of affected communities;

7 (2) lessen tensions; and

8 (3) foster greater understanding and stronger

9 cooperation on this and other important security

10 issues of mutual concern.

11 (e) ANNUAL REPORT.—Not later than 180 days after

12 the date of enactment of this Act, and annually thereafter,

13 the Secretary of State shall submit to Congress a report

14 on the actions taken by the United States and Mexico

15 under this section.

16 Subtitle C—Other Border Security

17 Initiatives

18 SEC. 121. BIOMETRIC DATA ENHANCEMENTS.

19 Not later than October 1, 2007, the Secretary shall—

20 (1) in consultation with the Attorney General,

21 enhance connectivity between the Automated Bio22 metric Fingerprint Identification System (IDENT)

23 of the Department and the Integrated Automated

24 Fingerprint Identification System (IAFIS) of the
†

40

S 2611 ES

1 Federal Bureau of Investigation to ensure more ex2 peditious data searches; and

3 (2) in consultation with the Secretary of State,

4 collect all fingerprints from each alien required to

5 provide fingerprints during the alien’s initial enroll6 ment in the integrated entry and exit data system

7 described in section 110 of the Illegal Immigration

8 Reform and Immigrant Responsibility Act of 1996

9 (8 U.S.C. 1365a).

10 SEC. 122. SECURE COMMUNICATION.

11 The Secretary shall, as expeditiously as practicable,

12 develop and implement a plan to improve the use of sat13 ellite communications and other technologies to ensure

14 clear and secure 2-way communication capabilities—

15 (1) among all Border Patrol agents conducting

16 operations between ports of entry;

17 (2) between Border Patrol agents and their re18 spective Border Patrol stations;

19 (3) between Border Patrol agents and residents

20 in remote areas along the international land borders

21 of the United States; and

22 (4) between all appropriate border security

23 agencies of the Department and State, local, and

24 tribal law enforcement agencies.
†

41

S 2611 ES

1 SEC. 123. BORDER PATROL TRAINING CAPACITY REVIEW.

2 (a) IN GENERAL.—The Comptroller General of the

3 United States shall conduct a review of the basic training

4 provided to Border Patrol agents by the Secretary to en5 sure that such training is provided as efficiently and cost6 effectively as possible.

7 (b) COMPONENTS OF REVIEW.—The review under

8 subsection (a) shall include the following components:

9 (1) An evaluation of the length and content of

10 the basic training curriculum provided to new Bor11 der Patrol agents by the Federal Law Enforcement

12 Training Center, including a description of how such

13 curriculum has changed since September 11, 2001,

14 and an evaluation of language and cultural diversity

15 training programs provided within such curriculum.

16 (2) A review and a detailed breakdown of the

17 costs incurred by the Bureau of Customs and Bor18 der Protection and the Federal Law Enforcement

19 Training Center to train 1 new Border Patrol agent.

20 (3) A comparison, based on the review and

21 breakdown under paragraph (2), of the costs, effec22 tiveness, scope, and quality, including geographic

23 characteristics, with other similar training programs

24 provided by State and local agencies, nonprofit orga25 nizations, universities, and the private sector.
†

42

S 2611 ES

1 (4) An evaluation of whether utilizing com2 parable non-Federal training programs, proficiency

3 testing, and long-distance learning programs may

4 affect—

5 (A) the cost-effectiveness of increasing the

6 number of Border Patrol agents trained per

7 year;

8 (B) the per agent costs of basic training;

9 and

10 (C) the scope and quality of basic training

11 needed to fulfill the mission and duties of a

12 Border Patrol agent.

13 SEC. 124. US–VISIT SYSTEM.

14 Not later than 6 months after the date of the enact15 ment of this Act, the Secretary, in consultation with the

16 heads of other appropriate Federal agencies, shall submit

17 to Congress a schedule for—

18 (1) equipping all land border ports of entry of

19 the United States with the U.S.-Visitor and Immi20 grant Status Indicator Technology (US–VISIT) sys21 tem implemented under section 110 of the Illegal

22 Immigration Reform and Immigrant Responsibility

23 Act of 1996 (8 U.S.C. 1365a);
†

43

S 2611 ES

1 (2) developing and deploying at such ports of

2 entry the exit component of the US–VISIT system;

3 and

4 (3) making interoperable all immigration

5 screening systems operated by the Secretary.

6 SEC. 125. DOCUMENT FRAUD DETECTION.

7 (a) TRAINING.—Subject to the availability of appro8 priations, the Secretary shall provide all Customs and

9 Border Protection officers with training in identifying and

10 detecting fraudulent travel documents. Such training shall

11 be developed in consultation with the head of the Forensic

12 Document Laboratory of the Bureau of Immigration and

13 Customs Enforcement.

14 (b) FORENSIC DOCUMENT LABORATORY.—The Sec15 retary shall provide all Customs and Border Protection of16 ficers with access to the Forensic Document Laboratory.

17 (c) ASSESSMENT.—

18 (1) REQUIREMENT FOR ASSESSMENT.—The In19 spector General of the Department shall conduct an

20 independent assessment of the accuracy and reli21 ability of the Forensic Document Laboratory.

22 (2) REPORT TO CONGRESS.—Not later than 6

23 months after the date of the enactment of this Act,

24 the Inspector General shall submit to Congress the
†

44

S 2611 ES

1 findings of the assessment required by paragraph

2 (1).

3 (d) AUTHORIZATION OF APPROPRIATIONS.—There

4 are authorized to be appropriated to the Secretary such

5 sums as may be necessary for each of fiscal years 2007

6 through 2011 to carry out this section.

7 SEC. 126. IMPROVED DOCUMENT INTEGRITY.

8 (a) IN GENERAL.—Section 303 of the Enhanced Bor9 der Security and Visa Entry Reform Act of 2002 (8

10 U.S.C. 1732) is amended—

11 (1) by striking ‘‘Attorney General’’ each place

12 it appears and inserting ‘‘Secretary of Homeland Se13 curity’’;

14 (2) in the heading, by striking ‘‘ENTRY AND

15 EXIT DOCUMENTS’’ and inserting ‘‘TRAVEL AND

16 ENTRY DOCUMENTS AND EVIDENCE OF STA17 TUS’’;

18 (3) in subsection (b)(1)—

19 (A) by striking ‘‘Not later than October

20 26, 2004, the’’ and inserting ‘‘The’’; and

21 (B) by striking ‘‘visas and’’ both places it

22 appears and inserting ‘‘visas, evidence of status,

23 and’’;

24 (4) by redesignating subsection (d) as sub25 section (e); and
†

45

S 2611 ES

1 (5) by inserting after subsection (c) the fol2 lowing:

3 ‘‘(d) OTHER DOCUMENTS.—Not later than October

4 26, 2007, every document, other than an interim docu5 ment, issued by the Secretary of Homeland Security,

6 which may be used as evidence of an alien’s status as an

7 immigrant, nonimmigrant, parolee, asylee, or refugee,

8 shall be machine-readable and tamper-resistant, and shall

9 incorporate a biometric identifier to allow the Secretary

10 of Homeland Security to verify electronically the identity

11 and status of the alien.’’.

12 SEC. 127. CANCELLATION OF VISAS.

13 Section 222(g) (8 U.S.C. 1202(g)) is amended—

14 (1) in paragraph (1)—

15 (A) by striking ‘‘Attorney General’’ and in16 serting ‘‘Secretary of Homeland Security’’; and

17 (B) by inserting ‘‘and any other non18 immigrant visa issued by the United States that

19 is in the possession of the alien’’ after ‘‘such

20 visa’’; and

21 (2) in paragraph (2)(A), by striking ‘‘(other

22 than the visa described in paragraph (1)) issued in

23 a consular office located in the country of the alien’s

24 nationality’’ and inserting ‘‘(other than a visa de25 scribed in paragraph (1)) issued in a consular office
†

46

S 2611 ES

1 located in the country of the alien’s nationality or

2 foreign residence’’.

3 SEC. 128. BIOMETRIC ENTRY-EXIT SYSTEM.

4 (a) COLLECTION OF BIOMETRIC DATA FROM ALIENS

5 DEPARTING THE UNITED STATES.—Section 215 (8

6 U.S.C. 1185) is amended—

7 (1) by redesignating subsection (c) as sub8 section (g);

9 (2) by moving subsection (g), as redesignated

10 by paragraph (1), to the end; and

11 (3) by inserting after subsection (b) the fol12 lowing:

13 ‘‘(c) The Secretary of Homeland Security is author14 ized to require aliens departing the United States to pro15 vide biometric data and other information relating to their

16 immigration status.’’.

17 (b) INSPECTION OF APPLICANTS FOR ADMISSION.—

18 Section 235(d) (8 U.S.C. 1225(d)) is amended by adding

19 at the end the following:

20 ‘‘(5) AUTHORITY TO COLLECT BIOMETRIC

21 DATA.—In conducting inspections under subsection

22 (b), immigration officers are authorized to collect bi23 ometric data from—

24 ‘‘(A) any applicant for admission or alien

25 seeking to transit through the United States; or
†

47

S 2611 ES

1 ‘‘(B) any lawful permanent resident who is

2 entering the United States and who is not re3 garded as seeking admission pursuant to sec4 tion 101(a)(13)(C).’’.

5 (c) COLLECTION OF BIOMETRIC DATA FROM ALIEN

6 CREWMEN.—Section 252 (8 U.S.C. 1282) is amended by

7 adding at the end the following:

8 ‘‘(d) An immigration officer is authorized to collect

9 biometric data from an alien crewman seeking permission

10 to land temporarily in the United States.’’.

11 (d) GROUNDS OF INADMISSIBILITY.—Section 212 (8

12 U.S.C. 1182) is amended—

13 (1) in subsection (a)(7), by adding at the end

14 the following:

15 ‘‘(C) WITHHOLDERS OF BIOMETRIC

16 DATA.—Any alien who knowingly fails to com17 ply with a lawful request for biometric data

18 under section 215(c) or 235(d) is inadmis19 sible.’’; and

20 (2) in subsection (d), by inserting after para21 graph (1) the following:

22 ‘‘(2) The Secretary of Homeland Security shall

23 determine whether a ground for inadmissibility ex24 ists with respect to an alien described in subpara25 graph (C) of subsection (a)(7) and may waive the
†

48

S 2611 ES

1 application of such subparagraph for an individual

2 alien or a class of aliens, at the discretion of the

3 Secretary.’’.

4 (e) IMPLEMENTATION.—Section 7208 of the 9/11

5 Commission Implementation Act of 2004 (8 U.S.C.

6 1365b) is amended—

7 (1) in subsection (c), by adding at the end the

8 following:

9 ‘‘(3) IMPLEMENTATION.—In fully implementing

10 the automated biometric entry and exit data system

11 under this section, the Secretary is not required to

12 comply with the requirements of chapter 5 of title 5,

13 United States Code (commonly referred to as the

14 Administrative Procedure Act) or any other law re15 lating to rulemaking, information collection, or pub16 lication in the Federal Register.’’; and

17 (2) in subsection (l)—

18 (A) by striking ‘‘There are authorized’’

19 and inserting the following:

20 ‘‘(1) IN GENERAL.—There are authorized’’; and

21 (B) by adding at the end the following:

22 ‘‘(2) IMPLEMENTATION AT ALL LAND BORDER

23 PORTS OF ENTRY.—There are authorized to be ap24 propriated such sums as may be necessary for each

25 of fiscal years 2007 and 2008 to implement the
†

49

S 2611 ES

1 automated biometric entry and exit data system at

2 all land border ports of entry.’’.

3 SEC. 129. BORDER STUDY.

4 (a) SOUTHERN BORDER STUDY.—The Secretary, in

5 consultation with the Attorney General, the Secretary of

6 the Interior, the Secretary of Agriculture, the Secretary

7 of Defense, the Secretary of Commerce, and the Adminis8 trator of the Environmental Protection Agency, shall con9 duct a study on the construction of a system of physical

10 barriers along the southern international land and mari11 time border of the United States. The study shall

12 include—

13 (1) an assessment of the necessity of con14 structing such a system, including the identification

15 of areas of high priority for the construction of such

16 a system determined after consideration of factors

17 including the amount of narcotics trafficking and

18 the number of illegal immigrants apprehended in

19 such areas;

20 (2) an assessment of the feasibility of con21 structing such a system;

22 (3) an assessment of the international, national,

23 and regional environmental impact of such a system,

24 including the impact on zoning, global climate
†

50

S 2611 ES

1 change, ozone depletion, biodiversity loss, and

2 transboundary pollution;

3 (4) an assessment of the necessity for ports of

4 entry along such a system;

5 (5) an assessment of the impact such a system

6 would have on international trade, commerce, and

7 tourism;

8 (6) an assessment of the effect of such a system

9 on private property rights including issues of emi10 nent domain and riparian rights;

11 (7) an estimate of the costs associated with

12 building a barrier system, including costs associated

13 with excavation, construction, and maintenance;

14 (8) an assessment of the effect of such a system

15 on Indian reservations and units of the National

16 Park System;

17 (9) an assessment of the necessity of con18 structing such a system after the implementation of

19 provisions of this Act relating to guest workers, visa

20 reform, and interior and worksite enforcement, and

21 the likely effect of such provisions on undocumented

22 immigration and the flow of illegal immigrants

23 across the international border of the United States;

24 (10) an assessment of the impact of such a sys25 tem on diplomatic relations between the United
†

51

S 2611 ES

1 States and Mexico, Central America, and South

2 America, including the likely impact of such a sys3 tem on existing and potential areas of bilateral and

4 multilateral cooperative enforcement efforts;

5 (11) an assessment of the impact of such a sys6 tem on the quality of life within border communities

7 in the United States and Mexico, including its im8 pact on noise and light pollution, housing, transpor9 tation, security, and environmental health;

10 (12) an assessment of the likelihood that such

11 a system would lead to increased violations of the

12 human rights, health, safety, or civil rights of indi13 viduals in the region near the southern international

14 border of the United States, regardless of the immi15 gration status of such individuals;

16 (13) an assessment of the effect such a system

17 would have on violence near the southern inter18 national border of the United States; and

19 (14) an assessment of the effect of such a sys20 tem on the vulnerability of the United States to in21 filtration by terrorists or other agents intending to

22 inflict direct harm on the United States.

23 (b) REPORT.—Not later than 9 months after the date

24 of the enactment of this Act, the Secretary shall submit
†

52

S 2611 ES

1 to Congress a report on the study described in subsection

2 (a).

3 SEC. 130. SECURE BORDER INITIATIVE FINANCIAL AC4 COUNTABILITY.

5 (a) IN GENERAL.—The Inspector General of the De6 partment shall review each contract action relating to the

7 Secure Border Initiative having a value of more than

8 $20,000,000, to determine whether each such action fully

9 complies with applicable cost requirements, performance

10 objectives, program milestones, inclusion of small, minor11 ity, and women-owned business, and time lines. The In12 spector General shall complete a review under this sub13 section with respect to each contract action—

14 (1) not later than 60 days after the date of the

15 initiation of the action; and

16 (2) upon the conclusion of the performance of

17 the contract.

18 (b) INSPECTOR GENERAL.—

19 (1) ACTION.—If the Inspector General becomes

20 aware of any improper conduct or wrongdoing in the

21 course of conducting a contract review under sub22 section (a), the Inspector General shall, as expedi23 tiously as practicable, refer information relating to

24 such improper conduct or wrongdoing to the Sec25 retary, or to another appropriate official of the De-
†

53

S 2611 ES

1 partment, who shall determine whether to tempo2 rarily suspend the contractor from further participa3 tion in the Secure Border Initiative.

4 (2) REPORT.—Upon the completion of each re5 view described in subsection (a), the Inspector Gen6 eral shall submit to the Secretary a report con7 taining the findings of the review, including findings

8 regarding—

9 (A) cost overruns;

10 (B) significant delays in contract execu11 tion;

12 (C) lack of rigorous departmental contract

13 management;

14 (D) insufficient departmental financial

15 oversight;

16 (E) bundling that limits the ability of

17 small businesses to compete; or

18 (F) other high risk business practices.

19 (c) REPORTS BY THE SECRETARY.—

20 (1) IN GENERAL.—Not later than 30 days after

21 the receipt of each report required under subsection

22 (b)(2), the Secretary shall submit a report, to the

23 Committee on the Judiciary of the Senate and the

24 Committee on the Judiciary of the House of Rep25 resentatives, that describes—
†

54

S 2611 ES

1 (A) the findings of the report received

2 from the Inspector General; and

3 (B) the steps the Secretary has taken, or

4 plans to take, to address the problems identified

5 in such report.

6 (2) CONTRACTS WITH FOREIGN COMPANIES.—

7 Not later than 60 days after the initiation of each

8 contract action with a company whose headquarters

9 is not based in the United States, the Secretary

10 shall submit a report to the Committee on the Judi11 ciary of the Senate and the Committee on the Judi12 ciary of the House of Representatives, regarding the

13 Secure Border Initiative.

14 (d) REPORTS ON UNITED STATES PORTS.—Not later

15 that 30 days after receiving information regarding a pro16 posed purchase of a contract to manage the operations of

17 a United States port by a foreign entity, the Committee

18 on Foreign Investment in the United States shall submit

19 a report to Congress that describes—

20 (1) the proposed purchase;

21 (2) any security concerns related to the pro22 posed purchase; and

23 (3) the manner in which such security concerns

24 have been addressed.
†

55

S 2611 ES

1 (e) AUTHORIZATION OF APPROPRIATIONS.—In addi2 tion to amounts that are otherwise authorized to be appro3 priated to the Office of the Inspector General of the De4 partment, there are authorized to be appropriated to the

5 Office, to enable the Office to carry out this section—

6 (1) for fiscal year 2007, not less than 5 percent

7 of the overall budget of the Office for such fiscal

8 year;

9 (2) for fiscal year 2008, not less than 6 percent

10 of the overall budget of the Office for such fiscal

11 year; and

12 (3) for fiscal year 2009, not less than 7 percent

13 of the overall budget of the Office for such fiscal

14 year.

15 SEC. 131. MANDATORY DETENTION FOR ALIENS APPRE16 HENDED AT OR BETWEEN PORTS OF ENTRY.

17 (a) IN GENERAL.—Beginning on October 1, 2007, an

18 alien (other than a national of Mexico) who is attempting

19 to illegally enter the United States and who is appre20 hended at a United States port of entry or along the inter21 national land and maritime border of the United States

22 shall be detained until removed or a final decision granting

23 admission has been determined, unless the alien—

24 (1) is permitted to withdraw an application for

25 admission under section 235(a)(4) of the Immigra-
†

56

S 2611 ES

1 tion and Nationality Act (8 U.S.C. 1225(a)(4)) and

2 immediately departs from the United States pursu3 ant to such section; or

4 (2) is paroled into the United States by the

5 Secretary for urgent humanitarian reasons or sig6 nificant public benefit in accordance with section

7 212(d)(5)(A) of such Act (8 U.S.C. 1182(d)(5)(A)).

8 (b) REQUIREMENTS DURING INTERIM PERIOD.—Be9 ginning 60 days after the date of the enactment of this

10 Act and before October 1, 2007, an alien described in sub11 section (a) may be released with a notice to appear only

12 if—

13 (1) the Secretary determines, after conducting

14 all appropriate background and security checks on

15 the alien, that the alien does not pose a national se16 curity risk; and

17 (2) the alien provides a bond of not less than

18 $5,000.

19 (c) RULES OF CONSTRUCTION.—

20 (1) ASYLUM AND REMOVAL.—Nothing in this

21 section shall be construed as limiting the right of an

22 alien to apply for asylum or for relief or deferral of

23 removal based on a fear of persecution.

24 (2) TREATMENT OF CERTAIN ALIENS.—The

25 mandatory detention requirement in subsection (a)
†

57

S 2611 ES

1 does not apply to any alien who is a native or citizen

2 of a country in the Western Hemisphere with whose

3 government the United States does not have full dip4 lomatic relations.

5 (3) DISCRETION.—Nothing in this section shall

6 be construed as limiting the authority of the Sec7 retary, in the Secretary’s sole unreviewable discre8 tion, to determine whether an alien described in

9 clause (ii) of section 235(b)(1)(B) of the Immigra10 tion and Nationality Act shall be detained or re11 leased after a finding of a credible fear of persecu12 tion (as defined in clause (v) of such section).

13 SEC. 132. EVASION OF INSPECTION OR VIOLATION OF AR14 RIVAL, REPORTING, ENTRY, OR CLEARANCE

15 REQUIREMENTS.

16 (a) IN GENERAL.—Chapter 27 of title 18, United

17 States Code, is amended by adding at the end the fol18 lowing:

19 ‘‘§ 555. Evasion of inspection or during violation of

20 arrival, reporting, entry, or clearance re21 quirements

22 ‘‘(a) PROHIBITION.—A person shall be punished as

23 described in subsection (b) if such person attempts to

24 elude or eludes customs, immigration, or agriculture in25 spection or fails to stop at the command of an officer or
†

58

S 2611 ES

1 employee of the United States charged with enforcing the

2 immigration, customs, or other laws of the United States

3 at a port of entry or customs or immigration checkpoint.

4 ‘‘(b) PENALTIES.—A person who commits an offense

5 described in subsection (a) shall be—

6 ‘‘(1) fined under this title;

7 ‘‘(2)(A) imprisoned for not more than 3 years,

8 or both;

9 ‘‘(B) imprisoned for not more than 10 years, or

10 both, if in commission of this violation, attempts to

11 inflict or inflicts bodily injury (as defined in section

12 1365(g) of this title); or

13 ‘‘(C) imprisoned for any term of years or for

14 life, or both, if death results, and may be sentenced

15 to death; or

16 ‘‘(3) both fined and imprisoned under this sub17 section.

18 ‘‘(c) CONSPIRACY.—If 2 or more persons conspire to

19 commit an offense described in subsection (a), and 1 or

20 more of such persons do any act to effect the object of

21 the conspiracy, each shall be punishable as a principal, ex22 cept that the sentence of death may not be imposed.

23 ‘‘(d) PRIMA FACIE EVIDENCE.—For the purposes of

24 seizure and forfeiture under applicable law, in the case of

25 use of a vehicle or other conveyance in the commission
†

59

S 2611 ES

1 of this offense, or in the case of disregarding or disobeying

2 the lawful authority or command of any officer or em3 ployee of the United States under section 111(b) of this

4 title, such conduct shall constitute prima facie evidence of

5 smuggling aliens or merchandise.’’.

6 (b) CONFORMING AMENDMENT.—The table of sec7 tions for chapter 27 of title 18, United States Code, is

8 amended by inserting at the end:

‘‘555. Evasion of inspection or during violation of arrival, reporting, entry, or

clearance requirements.’’.

9 (c) FAILURE TO OBEY BORDER ENFORCEMENT OF10 FICERS.—Section 111 of title 18, United States Code, is

11 amended by inserting after subsection (b) the following:

12 ‘‘(c) FAILURE TO OBEY LAWFUL ORDERS OF BOR13 DER ENFORCEMENT OFFICERS.—Whoever willfully dis14 regards or disobeys the lawful authority or commend of

15 any officer or employee of the United States charged with

16 enforcing the immigration, customs, or other laws of the

17 United States while engaged in, or on account of, the per18 formance of official duties shall be fined under this title

19 or imprisoned for not more than 5 years, or both.’’.

20 SEC. 133. TEMPORARY NATIONAL GUARD SUPPORT FOR SE21 CURING THE SOUTHERN LAND BORDER OF

22 THE UNITED STATES.

23 (a) AUTHORITY TO PROVIDE ASSISTANCE.—(1) With

24 the approval of the Secretary of Defense, the Governor
†

60

S 2611 ES

1 of a State may order any units or personnel of the Na2 tional Guard of such State to perform annual training

3 duty under section 502(a) of title 32, United States Code,

4 to carry out in any State along the southern land border

5 of the United States the activities authorized in subsection

6 (b), for the purpose of securing such border. Such duty

7 shall not exceed 21 days in any year.

8 (2) With the approval of the Secretary of Defense,

9 the Governor of a State may order any units or personnel

10 of the National Guard of such State to perform duty

11 under section 502(f) of title 32, United States Code, to

12 provide command, control, and continuity of support for

13 units or personnel performing annual training duty under

14 paragraph (1).

15 (b) AUTHORIZED ACTIVITIES.—The activities author16 ized by this subsection are any of the following:

17 (1) Ground reconnaissance activities;

18 (2) Airborne reconnaissance activities;

19 (3) Logistical support;

20 (4) Provision of translation services and train21 ing;

22 (5) Administrative support services;

23 (6) Technical training services;

24 (7) Emergency medical assistance and services;

25 (8) Communications services;
†

61

S 2611 ES

1 (9) Rescue of aliens in peril;

2 (10) Construction of roadways, patrol roads,

3 fences, barriers, and other facilities to secure the

4 southern land border of the United States; and

5 (11) Ground and air transportation.

6 (c) COOPERATIVE AGREEMENTS.—Units and per7 sonnel of the National Guard of a State may perform ac8 tivities in another State under subsection (a) only pursu9 ant to the terms of an emergency management assistance

10 compact or other cooperative arrangement entered into be11 tween Governors of such States for purposes of this sec12 tion, and only with the approval of the Secretary of De13 fense.

14 (d) COORDINATION OF ASSISTANCE.—The Secretary

15 of Homeland Security shall, in consultation with the Sec16 retary of Defense and the Governors of the States con17 cerned, coordinate the performance of activities under this

18 section by units and personnel of the National Guard.

19 (e) ANNUAL TRAINING.—Annual training duty per20 formed by members of the National Guard under sub21 section (a) shall be appropriate for the units and indi22 vidual members concerned, taking into account the types

23 of units and military occupational specialties of individual

24 members performing such duty.

25 (f) DEFINITIONS.—In this section:
†

62

S 2611 ES

1 (1) The term ‘‘Governor of a State’’ means, in

2 the case of the District of Columbia, the Com3 manding General of the National Guard of the Dis4 trict of Columbia.

5 (2) The term ‘‘State’’ means each of the several

6 States, the District of Columbia, the Commonwealth

7 of Puerto Rico, Guam, and the Virgin Islands.

8 (3) The term ‘‘State along the southern border

9 of the United States’’ means each of the following:

10 (A) The State of Arizona.

11 (B) The State of California.

12 (C) The State of New Mexico.

13 (D) The State of Texas.

14 (g) DURATION OF AUTHORITY.—The authority of

15 this section shall expire on January 1, 2009.

16 (h) PROHIBITION ON DIRECT PARTICIPATION IN LAW

17 ENFORCEMENT.—Activities carried out under the author18 ity of this section shall not include the direct participation

19 of a member of the National Guard in a search, seizure,

20 arrest, or similar activity.
†

63

S 2611 ES

1 SEC. 134. REPORT ON INCENTIVES TO ENCOURAGE CER2 TAIN MEMBERS AND FORMER MEMBERS OF

3 THE ARMED FORCES TO SERVE IN THE BU4 REAU OF CUSTOMS AND BORDER PROTEC5 TION.

6 (a) REPORT REQUIRED.—Not later than 60 days

7 after the date of the enactment of this Act, the Secretary

8 of Homeland Security and the Secretary of Defense shall

9 jointly submit to the appropriate committees of Congress

10 a report assessing the desirability and feasibility of offer11 ing incentives to covered members and former members

12 of the Armed Forces for the purpose of encouraging such

13 members to serve in the Bureau of Customs and Border

14 Protection.

15 (b) COVERED MEMBERS AND FORMER MEMBERS OF

16 THE ARMED FORCES.—For purposes of this section, cov17 ered members and former members of the Armed Forces

18 are the following:

19 (1) Members of the reserve components of the

20 Armed Forces.

21 (2) Former members of the Armed Forces with22 in two years of separation from service in the Armed

23 Forces.

24 (c) REQUIREMENTS AND LIMITATIONS.—

25 (1) NATURE OF INCENTIVES.—In considering

26 incentives for purposes of the report required by
†

64

S 2611 ES

1 subsection (a), the Secretaries shall consider such

2 incentives, whether monetary or otherwise and

3 whether or not authorized by current law or regula4 tions, as the Secretaries jointly consider appropriate.

5 (2) TARGETING OF INCENTIVES.—In assessing

6 any incentive for purposes of the report, the Secre7 taries shall give particular attention to the utility of

8 such incentive in—

9 (A) encouraging service in the Bureau of

10 Customs and Border Protection after service in

11 the Armed Forces by covered members and

12 former of the Armed Forces who have provided

13 border patrol or border security assistance to

14 the Bureau as part of their duties as members

15 of the Armed Forces; and

16 (B) leveraging military training and expe17 rience by accelerating training, or allowing

18 credit to be applied to related areas of training,

19 required for service with the Bureau of Cus20 toms and Border Protection.

21 (3) PAYMENT.—In assessing incentives for pur22 poses of the report, the Secretaries shall assume

23 that any costs of such incentives shall be borne by

24 the Department of Homeland Security.
†

65

S 2611 ES

1 (d) ELEMENTS.—The report required by subsection

2 (a) shall include the following:

3 (1) A description of various monetary and non4 monetary incentives considered for purposes of the

5 report.

6 (2) An assessment of the desirability and feasi7 bility of utilizing any such incentive for the purpose

8 specified in subsection (a), including an assessment

9 of the particular utility of such incentive in encour10 aging service in the Bureau of Customs and Border

11 Protection after service in the Armed Forces by cov12 ered members and former members of the Armed

13 Forces described in subsection (c)(2).

14 (3) Any other matters that the Secretaries

15 jointly consider appropriate.

16 (e) APPROPRIATE COMMITTEES OF CONGRESS DE17 FINED.—In this section, the term ‘‘appropriate commit18 tees of Congress’’ means—

19 (1) the Committees on Armed Services, Home20 land Security and Governmental Affairs, and Appro21 priations of the Senate; and

22 (2) the Committees on Armed Services, Home23 land Security, and Appropriations of the House of

24 Representatives.
†

66

S 2611 ES

1 SEC. 135. WESTERN HEMISPHERE TRAVEL INITIATIVE.

2 (a) FINDINGS.—Congress makes the following find3 ings:

4 (1) United States citizens make approximately

5 130,000,000 land border crossings each year be6 tween the United States and Canada and the United

7 States and Mexico, with approximately 23,000,000

8 individual United States citizens crossing the border

9 annually.

10 (2) Approximately 27 percent of United States

11 citizens possess United States passports.

12 (3) In fiscal year 2005, the Secretary of State

13 issued an estimated 10,100,000 passports, rep14 resenting an increase of 15 percent from fiscal year

15 2004.

16 (4) The Secretary of State estimates that

17 13,000,000 passports will be issued in fiscal year

18 2006, 16,000,000 passports will be issued in fiscal

19 year 2007, and 17,000,000 passports will be issued

20 in fiscal year 2008.

21 (b) EXTENSION OF WESTERN HEMISPHERE TRAVEL

22 INITIATIVE IMPLEMENTATION DEADLINE.—Section

23 7209(b)(1) of the Intelligence Reform and Terrorism Pre24 vention Act of 2004 (Public Law 108–458; 8 U.S.C. 1185

25 note) is amended by striking ‘‘January 1, 2008’’ and in26 serting ‘‘the later of June 1, 2009, or 3 months after the
†

67

S 2611 ES

1 Secretary of State and the Secretary of Homeland Secu2 rity make the certification required in subsection (i) of sec3 tion 133 of the Comprehensive Immigration Reform Act

4 of 2006.’’.

5 (c) PASSPORT CARDS.—

6 (1) AUTHORITY TO ISSUE.—In order to facili7 tate travel of United States citizens to Canada, Mex8 ico, the countries located in the Caribbean, and Ber9 muda, the Secretary of State, in consultation with

10 the Secretary, is authorized to develop a travel docu11 ment known as a Passport Card.

12 (2) ISSUANCE.—In accordance with the West13 ern Hemisphere Travel Initiative carried out pursu14 ant to section 7209 of the Intelligence Reform and

15 Terrorism Prevention Act of 2004 (Public Law 108–

16 458; 8 U.S.C. 1185 note), the Secretary of State, in

17 consultation with the Secretary, shall be authorized

18 to issue to a citizen of the United States who sub19 mits an application in accordance with paragraph

20 (5) a travel document that will serve as a Passport

21 Card.

22 (3) APPLICABILITY.—A Passport Card shall be

23 deemed to be a United States passport for the pur24 pose of United States laws and regulations relating

25 to United States passports.
†

68

S 2611 ES

1 (4) VALIDITY.—A Passport Card shall be valid

2 for the same period as a United States passport.

3 (5) LIMITATION ON USE.—A Passport Card

4 may only be used for the purpose of international

5 travel by United States citizens through land and

6 sea ports of entry between—

7 (A) the United States and Canada;

8 (B) the United States and Mexico; and

9 (C) the United States and a country lo10 cated in the Caribbean or Bermuda.

11 (6) APPLICATION FOR ISSUANCE.—To be issued

12 a Passport Card, a United States citizen shall sub13 mit an application to the Secretary of State. The

14 Secretary of State shall require that such application

15 shall contain the same information as is required to

16 determine citizenship, identity, and eligibility for

17 issuance of a United States passport.

18 (7) TECHNOLOGY.—

19 (A) EXPEDITED TRAVELER PROGRAMS.—

20 To the maximum extent practicable, a Passport

21 Card shall be designed and produced to provide

22 a platform on which the expedited traveler pro23 grams carried out by the Secretary, such as

24 NEXUS, NEXUS AIR, SENTRI, FAST, and

25 Register Traveler may be added. The Secretary
†

69

S 2611 ES

1 of State and the Secretary shall notify Congress

2 not later than July 1, 2007, if the technology

3 to add expedited travel features to the Passport

4 Card is not developed by that date.

5 (B) TECHNOLOGY.—The Secretary and the

6 Secretary of State shall establish a technology

7 implementation plan that accommodates desired

8 technology requirements of the Department of

9 State and the Department, allows for future

10 technological innovations, and ensures max11 imum facilitation at the northern and southern

12 borders.

13 (8) SPECIFICATIONS FOR CARD.—A Passport

14 Card shall be easily portable and durable. The Sec15 retary of State and the Secretary shall consult re16 garding the other technical specifications of the

17 Card, including whether the security features of the

18 Card could be combined with other existing identity

19 documentation.

20 (9) FEE.—

21 (A) IN GENERAL.—An applicant for a

22 Passport Card shall submit an application

23 under paragraph (6) together with a nonrefund24 able fee in an amount to be determined by the

25 Secretary of State. Passport Card fees shall be
†

70

S 2611 ES

1 deposited as an offsetting collection to the ap2 propriate Department of State appropriation, to

3 remain available until expended.

4 (B) LIMITATION ON FEES.—

5 (i) IN GENERAL.—The Secretary of

6 State shall seek to make the application

7 fee under this paragraph as low as pos8 sible.

9 (ii) MAXIMUM FEE WITHOUT CERTIFI10 CATION.—Except as provided in clause

11 (iii), the application fee may not exceed

12 $24.

13 (iii) MAXIMUM FEE WITH CERTIFI14 CATION.—The application fee may be not

15 more than $34 if the Secretary of State,

16 the Secretary, and the Postmaster

17 General—

18 (I) jointly certify to Congress

19 that the cost to produce and issue a

20 Passport Card significantly exceeds

21 $24; and

22 (II) provide a detailed cost anal23 ysis for such fee.

24 (C) REDUCTION OF FEE.—The Secretary

25 of State shall reduce the fee for a Passport
†

71

S 2611 ES

1 Card for an individual who submits an applica2 tion for a Passport Card together with an appli3 cation for a United States passport.

4 (D) WAIVER OF FEE FOR CHILDREN.—

5 The Secretary of State shall waive the fee for

6 a Passport Card for a child under 18 years of

7 age.

8 (E) AUDIT.—In the event that the fee for

9 a Passport Card exceeds $24, the Comptroller

10 General of the United States shall conduct an

11 audit to determine whether Passport Cards are

12 issued at the lowest possible cost.

13 (10) ACCESSIBILITY.—In order to make the

14 Passport Card easily obtainable, an application for a

15 Passport Card shall be accepted in the same manner

16 and at the same locations as an application for a

17 United States passport.

18 (11) RULE OF CONSTRUCTION.—Nothing in

19 this section shall be construed as limiting, altering,

20 modifying, or otherwise affecting the validity of a

21 United States passport. A United States citizen may

22 possess a United States passport and a Passport

23 Card.

24 (d) STATE ENROLLMENT DEMONSTRATION PRO25 GRAM.—
†

72

S 2611 ES

1 (1) IN GENERAL.—Notwithstanding any other

2 provisions of law, the Secretary of State and the

3 Secretary shall enter into a memorandum of under4 standing with 1 or more appropriate States to carry

5 out at least 1 demonstration program as follows:

6 (A) A State may include an individual’s

7 United States citizenship status on a driver’s li8 cense which meets the requirements of section

9 202 of the REAL ID Act of 2005 (division B

10 of Public Law 109–13; 49 U.S.C. 30301 note).

11 (B) The Secretary of State shall develop a

12 mechanism to communicate with a participating

13 State to verify the United States citizenship

14 status of an applicant who voluntarily seeks to

15 have the applicant’s United States citizenship

16 status included on a driver’s license.

17 (C) All information collected about the in18 dividual shall be managed exclusively in the

19 same manner as information collected through

20 a passport application and no further distribu21 tion of such information shall be permitted.

22 (D) A State may not require an individual

23 to include the individual’s citizenship status on

24 a driver’s license.
†

73

S 2611 ES

1 (E) Notwithstanding any other provision of

2 law, a driver’s license which meets the require3 ments of this paragraph shall be deemed to be

4 sufficient documentation to permit the bearer to

5 enter the United States from Canada or Mexico

6 through not less than at least 1 designated

7 international border crossing in each State par8 ticipating in the demonstration program.

9 (2) RULE OF CONSTRUCTION.—Nothing in this

10 subsection shall have the effect of creating a na11 tional identity card.

12 (3) AUTHORITY TO EXPAND.—The Secretary of

13 State and the Secretary may expand the demonstra14 tion program under this subsection so that such pro15 gram is carried out in additional States, through ad16 ditional ports of entry, for additional foreign coun17 tries, and in a manner that permits the use of addi18 tional types of identification documents to prove

19 identity under the program.

20 (4) STUDY.—Not later than 6 months after the

21 date that the demonstration program under this sub22 section is carried out, the Comptroller General of the

23 United States shall conduct a study of—
†

74

S 2611 ES

1 (A) the cost of the production and issuance

2 of documents that meet the requirements of the

3 program compared with other travel documents;

4 (B) the impact of the program on the flow

5 of cross-border traffic and the economic impact

6 of the program; and

7 (C) the security of travel documents that

8 meet the requirements of the program com9 pared with other travel documents.

10 (5) RECIPROCITY WITH CANADA.—Notwith11 standing any other provision of law, if the Secretary

12 of State and the Secretary certify that certain iden13 tity documents issued by Canada (or any of its prov14 inces) meet security and citizenship standards com15 parable to the requirements described in paragraph

16 (1), the Secretary may determine that such docu17 ments are sufficient to permit entry into the United

18 States. The Secretary shall work, to the maximum

19 extent possible, to ensure that identification docu20 ments issued by Canada that are used as described

21 in this paragraph contain the same technology as

22 identification documents issued by the United States

23 (or any State).

24 (6) ADDITIONAL PILOT PROGRAMS.—To the

25 maximum extent possible, the Secretary shall seek to
†

75

S 2611 ES

1 conduct pilot programs related to Passport Cards

2 and the State Enrollment Demonstration Program

3 described in this subsection on the international bor4 der between the United States and Canada and the

5 international border between the United States and

6 Mexico.

7 (e) EXPEDITED PROCESSING FOR REPEAT TRAV8 ELERS.—

9 (1) LAND CROSSINGS.—To the maximum extent

10 practicable at the United States border with Canada

11 and the United States border with Mexico, the Sec12 retary shall expand expedited traveler programs car13 ried out by the Secretary to all ports of entry and

14 should encourage citizens of the United States to

15 participate in the preenrollment programs, as such

16 programs assist border control officers of the United

17 States in the fight against terrorism by increasing

18 the number of known travelers crossing the border.

19 The identities of such expedited travelers should be

20 entered into a database of known travelers who have

21 been subjected to in-depth background and watch22 list checks to permit border control officers to focus

23 more attention on unknown travelers, potential

24 criminals, and terrorists. The Secretary, in consulta25 tion with the appropriate officials of the Government
†

76

S 2611 ES

1 of Canada, shall equip at least 6 additional northern

2 border crossings with NEXUS technology and 6 ad3 ditional southern ports of entry with SENTRI tech4 nology.

5 (2) SEA CROSSINGS.—The Commissioner of

6 Customs and Border Patrol shall conduct and ex7 pand trusted traveler programs and pilot programs

8 to facilitate expedited processing of United States

9 citizens returning from pleasure craft trips in Can10 ada, Mexico, the Caribbean, or Bermuda. One such

11 program shall be conducted in Florida and modeled

12 on the I–68 program.

13 (f) PROCESS FOR INDIVIDUALS LACKING APPRO14 PRIATE DOCUMENTS.—

15 (1) IN GENERAL.—The Secretary shall establish

16 a program that satisfies section 7209 of the Intel17 ligence Reform and Terrorism Prevention Act of

18 2004 (Public Law 108–458; 8 U.S.C. 1185 note)—

19 (A) to permit a citizen of the United

20 States who has not been issued a United States

21 passport or other appropriate travel document

22 to cross the international border and return to

23 the United States for a time period of not more

24 than 72 hours, on a limited basis, and at no ad25 ditional fee; or
†

77

S 2611 ES

1 (B) to establish a process to ascertain the

2 identity of, and make admissibility determina3 tions for, a citizen described in paragraph (A)

4 upon the arrival of such citizen at an inter5 national border of the United States.

6 (2) GRACE PERIOD.—During a time period de7 termined by the Secretary, officers of the United

8 States Customs and Border Patrol may permit citi9 zens of the United States and Canada who are un10 aware of the requirements of section 7209 of the In11 telligence Reform and Terrorism Prevention Act of

12 2004 (Public Law 108–458; 8 U.S.C. 1185 note), or

13 otherwise lacking appropriate documentation, to

14 enter the United States upon a demonstration of

15 citizenship satisfactory to the officer. Officers of the

16 United States Customs and Border Patrol shall edu17 cate such individuals about documentary require18 ments.

19 (g) TRAVEL BY CHILDREN.—Notwithstanding any

20 other provision of law, the Secretary shall develop a proce21 dure to accommodate groups of children traveling by land

22 across an international border under adult supervision

23 with parental consent without requiring a government24 issued identity and citizenship document.
†

78

S 2611 ES

1 (h) PUBLIC PROMOTION.—The Secretary of State, in

2 consultation with the Secretary, shall develop and imple3 ment an outreach plan to inform United States citizens

4 about the Western Hemisphere Travel Initiative and the

5 provisions of this Act, to facilitate the acquisition of ap6 propriate documentation to travel to Canada, Mexico, the

7 countries located in the Caribbean, and Bermuda, and to

8 educate United States citizens who are unaware of the re9 quirements for such travel. Such outreach plan should

10 include—

11 (1) written notifications posted at or near pub12 lic facilities, including border crossings, schools, li13 braries, Amtrak stations, and United States Post

14 Offices located within 50 miles of the international

15 border between the United States and Canada or the

16 international border between the United States and

17 Mexico and other ports of entry;

18 (2) provisions to seek consent to post such noti19 fications on commercial property, such as offices of

20 State departments of motor vehicles, gas stations,

21 supermarkets, convenience stores, hotels, and travel

22 agencies;

23 (3) the collection and analysis of data to meas24 ure the success of the public promotion plan; and

25 (4) additional measures as appropriate.
†

79

S 2611 ES

1 (i) CERTIFICATION.—Notwithstanding any other pro2 vision of law, the Secretary may not implement the plan

3 described in section 7209(b) of the Intelligence Reform

4 and Terrorism Prevention Act of 2004 (Public Law 108–

5 458; 8 U.S.C. 1185 note) until the later of June 1, 2009,

6 or the date that is 3 months after the Secretary of State

7 and the Secretary certify to Congress that—

8 (1)(A) if the Secretary and the Secretary of

9 State develop and issue Passport Cards under this

10 section—

11 (i) such cards have been distributed to at

12 least 90 percent of the eligible United States

13 citizens who applied for such cards during the

14 6-month period beginning not earlier than the

15 date the Secretary of State began accepting ap16 plications for such cards and ending not earlier

17 than 10 days prior to the date of certification;

18 (ii) Passport Cards are provided to appli19 cants, on average, within 4 weeks of application

20 or within the same period of time required to

21 adjudicate a passport; and

22 (iii) a successful pilot has demonstrated

23 the effectiveness of the Passport Card; or

24 (B) if the Secretary and the Secretary of State

25 do not develop and issue Passport Cards under this
†

80

S 2611 ES

1 section and develop a program to issue an alter2 native document that satisfies the requirements of

3 section 7209 of the Intelligence Reform and Ter4 rorism Prevention Act of 2004, in addition to the

5 NEXUS, SENTRI, FAST and Border Crossing

6 Card programs, such alternative document is widely

7 available and well publicized;

8 (2) United States border crossings have been

9 equipped with sufficient document readers and other

10 technologies to ensure that implementation will not

11 substantially slow the flow of traffic and persons

12 across international borders;

13 (3) officers of the Bureau of Customs and Bor14 der Protection have received training and been pro15 vided the infrastructure necessary to accept Pass16 port Cards and all alternative identity documents at

17 all United States border crossings; and

18 (4) the outreach plan described in subsection

19 (g) has been implemented and the Secretary deter20 mines such plan has been successful in providing in21 formation to United States citizens.

22 (j) AUTHORIZATION OF APPROPRIATIONS.—There is

23 authorized to be appropriated to the Secretary of State

24 and the Secretary such sums as may be necessary to carry

25 out this section, and the amendment made by this section.
†

81

S 2611 ES

1 Subtitle D—Border Tunnel

2 Prevention Act

3 SEC. 141. SHORT TITLE.

4 This subtitle may be cited as the ‘‘Border Tunnel

5 Prevention Act’’.

6 SEC. 142. CONSTRUCTION OF BORDER TUNNEL OR PAS7 SAGE.

8 (a) IN GENERAL.—Chapter 27 of title 18, United

9 States Code, as amended by section 132, is further amend10 ed by adding at the end the following:

11 ‘‘§ 556. Border tunnels and passages

12 ‘‘(a) Any person who knowingly constructs or fi13 nances the construction of a tunnel or subterranean pas14 sage that crosses the international border between the

15 United States and another country, other than a lawfully

16 authorized tunnel or passage known to the Secretary of

17 Homeland Security and subject to inspection by the Bu18 reau of Immigration and Customs Enforcement, shall be

19 fined under this title and imprisoned for not more than

20 20 years.

21 ‘‘(b) Any person who knows or recklessly disregards

22 the construction or use of a tunnel or passage described

23 in subsection (a) on land that the person owns or controls

24 shall be fined under this title and imprisoned for not more

25 than 10 years.
†

82

S 2611 ES

1 ‘‘(c) Any person who uses a tunnel or passage de2 scribed in subsection (a) to unlawfully smuggle an alien,

3 goods (in violation of section 545), controlled substances,

4 weapons of mass destruction (including biological weap5 ons), or a member of a terrorist organization (as defined

6 in section 212(a)(3)(B)(vi) of the Immigration and Na7 tionality Act (8 U.S.C. 1182(a)(3)(B)(vi))) shall be sub8 ject to a maximum term of imprisonment that is twice the

9 maximum term of imprisonment that would have other10 wise been applicable had the unlawful activity not made

11 use of such a tunnel or passage.’’.

12 (b) CLERICAL AMENDMENT.—The table of sections

13 for chapter 27 of title 18, United States Code, as amended

14 by section 132, is further amended by adding at the end

15 the following:

‘‘Sec. 556. Border tunnels and passages.’’.

16 (c) CRIMINAL FORFEITURE.—Section 982(a)(6) of

17 title 18, United States Code, is amended by inserting

18 ‘‘556,’’ before ‘‘1425,’’.

19 SEC. 143. DIRECTIVE TO THE UNITED STATES SENTENCING

20 COMMISSION.

21 (a) IN GENERAL.—Pursuant to its authority under

22 section 994 of title 28, United States Code, and in accord23 ance with this section, the United States Sentencing Com24 mission shall promulgate or amend sentencing guidelines

25 to provide for increased penalties for persons convicted of
†

83

S 2611 ES

1 offenses described in section 556 of title 18, United States

2 Code, as added by section 142.

3 (b) REQUIREMENTS.—In carrying out this section,

4 the United States Sentencing Commission shall—

5 (1) ensure that the sentencing guidelines, policy

6 statements, and official commentary reflect the seri7 ous nature of the offenses described in section 556

8 of title 18, United States Code, and the need for ag9 gressive and appropriate law enforcement action to

10 prevent such offenses;

11 (2) provide adequate base offense levels for of12 fenses under such section;

13 (3) account for any aggravating or mitigating

14 circumstances that might justify exceptions,

15 including—

16 (A) the use of a tunnel or passage de17 scribed in subsection (a) of such section to fa18 cilitate other felonies; and

19 (B) the circumstances for which the sen20 tencing guidelines currently provide applicable

21 sentencing enhancements;

22 (4) ensure reasonable consistency with other

23 relevant directives, other sentencing guidelines, and

24 statutes;
†

84

S 2611 ES

1 (5) make any necessary and conforming

2 changes to the sentencing guidelines and policy

3 statements; and

4 (6) ensure that the sentencing guidelines ade5 quately meet the purposes of sentencing set forth in

6 section 3553(a)(2) of title 18, United States Code.

7 Subtitle E—Border Law

8 Enforcement Relief Act

9 SEC. 151. SHORT TITLE.

10 This subtitle may be cited as the ‘‘Border Law En11 forcement Relief Act of 2006’’.

12 SEC. 152. FINDINGS.

13 Congress finds the following:

14 (1) It is the obligation of the Federal Govern15 ment of the United States to adequately secure the

16 Nation’s borders and prevent the flow of undocu17 mented persons and illegal drugs into the United

18 States.

19 (2) Despite the fact that the United States

20 Border Patrol apprehends over 1,000,000 people

21 each year trying to illegally enter the United States,

22 according to the Congressional Research Service, the

23 net growth in the number of unauthorized aliens has

24 increased by approximately 500,000 each year. The

25 Southwest border accounts for approximately 94
†

85

S 2611 ES

1 percent of all migrant apprehensions each year. Cur2 rently, there are an estimated 11,000,000 unauthor3 ized aliens in the United States.

4 (3) The border region is also a major corridor

5 for the shipment of drugs. According to the El Paso

6 Intelligence Center, 65 percent of the narcotics that

7 are sold in the markets of the United States enter

8 the country through the Southwest Border.

9 (4) Border communities continue to incur sig10 nificant costs due to the lack of adequate border se11 curity. A 2001 study by the United States-Mexico

12 Border Counties Coalition found that law enforce13 ment and criminal justice expenses associated with

14 illegal immigration exceed $89,000,000 annually for

15 the Southwest border counties.

16 (5) In August 2005, the States of New Mexico

17 and Arizona declared states of emergency in order to

18 provide local law enforcement immediate assistance

19 in addressing criminal activity along the Southwest

20 border.

21 (6) While the Federal Government provides

22 States and localities assistance in covering costs re23 lated to the detention of certain criminal aliens and

24 the prosecution of Federal drug cases, local law en25 forcement along the border are provided no assist-
†

86

S 2611 ES

1 ance in covering such expenses and must use their

2 limited resources to combat drug trafficking, human

3 smuggling, kidnappings, the destruction of private

4 property, and other border-related crimes.

5 (7) The United States shares 5,525 miles of

6 border with Canada and 1,989 miles with Mexico.

7 Many of the local law enforcement agencies located

8 along the border are small, rural departments

9 charged with patrolling large areas of land. Counties

10 along the Southwest United States-Mexico border

11 are some of the poorest in the country and lack the

12 financial resources to cover the additional costs asso13 ciated with illegal immigration, drug trafficking, and

14 other border-related crimes.

15 (8) Federal assistance is required to help local

16 law enforcement operating along the border address

17 the unique challenges that arise as a result of their

18 proximity to an international border and the lack of

19 overall border security in the region

20 SEC. 153. BORDER RELIEF GRANT PROGRAM.

21 (a) GRANTS AUTHORIZED.—

22 (1) IN GENERAL.—The Secretary is authorized

23 to award grants, subject to the availability of appro24 priations, to an eligible law enforcement agency to

25 provide assistance to such agency to address—
†

87

S 2611 ES

1 (A) criminal activity that occurs in the ju2 risdiction of such agency by virtue of such

3 agency’s proximity to the United States border;

4 and

5 (B) the impact of any lack of security

6 along the United States border.

7 (2) DURATION.—Grants may be awarded under

8 this subsection during fiscal years 2007 through

9 2011.

10 (3) COMPETITIVE BASIS.—The Secretary shall

11 award grants under this subsection on a competitive

12 basis, except that the Secretary shall give priority to

13 applications from any eligible law enforcement agen14 cy serving a community—

15 (A) with a population of less than 50,000;

16 and

17 (B) located no more than 100 miles from

18 a United States border with—

19 (i) Canada; or

20 (ii) Mexico.

21 (b) USE OF FUNDS.—Grants awarded pursuant to

22 subsection (a) may only be used to provide additional re23 sources for an eligible law enforcement agency to address

24 criminal activity occurring along any such border,

25 including—
†

88

S 2611 ES

1 (1) to obtain equipment;

2 (2) to hire additional personnel;

3 (3) to upgrade and maintain law enforcement

4 technology;

5 (4) to cover operational costs, including over6 time and transportation costs; and

7 (5) such other resources as are available to as8 sist that agency.

9 (c) APPLICATION.—

10 (1) IN GENERAL.—Each eligible law enforce11 ment agency seeking a grant under this section shall

12 submit an application to the Secretary at such time,

13 in such manner, and accompanied by such informa14 tion as the Secretary may reasonably require.

15 (2) CONTENTS.—Each application submitted

16 pursuant to paragraph (1) shall—

17 (A) describe the activities for which assist18 ance under this section is sought; and

19 (B) provide such additional assurances as

20 the Secretary determines to be essential to en21 sure compliance with the requirements of this

22 section.

23 (d) DEFINITIONS.—For the purposes of this section:
†

89

S 2611 ES

1 (1) ELIGIBLE LAW ENFORCEMENT AGENCY.—

2 The term ‘‘eligible law enforcement agency’’ means

3 a tribal, State, or local law enforcement agency—

4 (A) located in a county no more than 100

5 miles from a United States border with—

6 (i) Canada; or

7 (ii) Mexico; or

8 (B) located in a county more than 100

9 miles from any such border, but where such

10 county has been certified by the Secretary as a

11 High Impact Area.

12 (2) HIGH IMPACT AREA.—The term ‘‘High Im13 pact Area’’ means any county designated by the Sec14 retary as such, taking into consideration—

15 (A) whether local law enforcement agencies

16 in that county have the resources to protect the

17 lives, property, safety, or welfare of the resi18 dents of that county;

19 (B) the relationship between any lack of

20 security along the United States border and the

21 rise, if any, of criminal activity in that county;

22 and

23 (C) any other unique challenges that local

24 law enforcement face due to a lack of security

25 along the United States border.
†

90

S 2611 ES

1 (e) AUTHORIZATION OF APPROPRIATIONS.—

2 (1) IN GENERAL.—There are authorized to be

3 appropriated $50,000,000 for each of fiscal years

4 2007 through 2011 to carry out the provisions of

5 this section.

6 (2) DIVISION OF AUTHORIZED FUNDS.—Of the

7 amounts authorized under paragraph (1)—

(A) 2 8 ⁄3 shall be set aside for eligible law en9 forcement agencies located in the 6 States with

10 the largest number of undocumented alien ap11 prehensions; and

(B) 1 12 ⁄3 shall be set aside for areas des13 ignated as a High Impact Area under sub14 section (d).

15 (f) SUPPLEMENT NOT SUPPLANT.—Amounts appro16 priated for grants under this section shall be used to sup17 plement and not supplant other State and local public

18 funds obligated for the purposes provided under this title.

19 SEC. 154. ENFORCEMENT OF FEDERAL IMMIGRATION LAW.

20 Nothing in this subtitle shall be construed to author21 ize State or local law enforcement agencies or their officers

22 to exercise Federal immigration law enforcement author23 ity.
†

91

S 2611 ES

1 Subtitle F—Rapid Response

2 Measures

3 SEC. 161. DEPLOYMENT OF BORDER PATROL AGENTS.

4 (a) EMERGENCY DEPLOYMENT OF BORDER PATROL

5 AGENTS.—

6 (1) IN GENERAL.—If the Governor of a State

7 on an international border of the United States de8 clares an international border security emergency

9 and requests additional United States Border Patrol

10 agents (referred to in this subtitle as ‘‘agents’’) from

11 the Secretary, the Secretary, subject to paragraphs

12 (1) and (2), may provide the State with not more

13 than 1,000 additional agents for the purpose of pa14 trolling and defending the international border, in

15 order to prevent individuals from crossing the inter16 national border into the United States at any loca17 tion other than an authorized port of entry.

18 (2) CONSULTATION.—Upon receiving a request

19 for agents under paragraph (1), the Secretary, after

20 consultation with the President, shall grant such re21 quest to the extent that providing such agents will

22 not significantly impair the Department’s ability to

23 provide border security for any other State.

24 (3) COLLECTIVE BARGAINING.—Emergency de25 ployments under this subsection shall be made in ac-
†

92

S 2611 ES

1 cordance with all applicable collective bargaining

2 agreements and obligations.

3 (b) ELIMINATION OF FIXED DEPLOYMENT OF BOR4 DER PATROL AGENTS.—The Secretary shall ensure that

5 agents are not precluded from performing patrol duties

6 and apprehending violators of law, except in unusual cir7 cumstances if the temporary use of fixed deployment posi8 tions is necessary.

9 (c) INCREASE IN FULL-TIME BORDER PATROL

10 AGENTS.—Section 5202(a)(1) of the Intelligence Reform

11 and Terrorism Prevention Act of 2004 (118 Stat. 3734),

12 as amended by section 101(b)(2), is further amended by

13 striking ‘‘2,000’’ and inserting ‘‘3,000’’.

14 SEC. 162. BORDER PATROL MAJOR ASSETS.

15 (a) CONTROL OF BORDER PATROL ASSETS.—The

16 United States Border Patrol shall have complete and ex17 clusive administrative and operational control over all the

18 assets utilized in carrying out its mission, including, air19 craft, watercraft, vehicles, detention space, transportation,

20 and all of the personnel associated with such assets.

21 (b) HELICOPTERS AND POWER BOATS.—

22 (1) HELICOPTERS.—The Secretary shall in23 crease, by not less than 100, the number of heli24 copters under the control of the United States Bor25 der Patrol. The Secretary shall ensure that appro-
†

93

S 2611 ES

1 priate types of helicopters are procured for the var2 ious missions being performed.

3 (2) POWER BOATS.—The Secretary shall in4 crease, by not less than 250, the number of power

5 boats under the control of the United States Border

6 Patrol. The Secretary shall ensure that the types of

7 power boats that are procured are appropriate for

8 both the waterways in which they are used and the

9 mission requirements.

10 (3) USE AND TRAINING.—The Secretary shall—

11 (A) establish an overall policy on how the

12 helicopters and power boats procured under this

13 subsection will be used; and

14 (B) implement training programs for the

15 agents who use such assets, including safe oper16 ating procedures and rescue operations.

17 (c) MOTOR VEHICLES.—

18 (1) QUANTITY.—The Secretary shall establish a

19 fleet of motor vehicles appropriate for use by the

20 United States Border Patrol that will permit a ratio

21 of not less than 1 police-type vehicle for every 3

22 agents. These police-type vehicles shall be replaced

23 not less than every 3 years. The Secretary shall en24 sure that there are sufficient numbers and types of
†

94

S 2611 ES

1 other motor vehicles to support the mission of the

2 United States Border Patrol.

3 (2) FEATURES.—All motor vehicles purchased

4 for the United States Border Patrol shall—

5 (A) be appropriate for the mission of the

6 United States Border Patrol; and

7 (B) have a panic button and a global posi8 tioning system device that is activated solely in

9 emergency situations to track the location of

10 agents in distress.

11 SEC. 163. ELECTRONIC EQUIPMENT.

12 (a) PORTABLE COMPUTERS.—The Secretary shall en13 sure that each police-type motor vehicle in the fleet of the

14 United States Border Patrol is equipped with a portable

15 computer with access to all necessary law enforcement

16 databases and otherwise suited to the unique operational

17 requirements of the United States Border Patrol.

18 (b) RADIO COMMUNICATIONS.—The Secretary shall

19 augment the existing radio communications system so that

20 all law enforcement personnel working in each area where

21 United States Border Patrol operations are conducted

22 have clear and encrypted 2-way radio communication ca23 pabilities at all times. Each portable communications de24 vice shall be equipped with a panic button and a global
†

95

S 2611 ES

1 positioning system device that is activated solely in emer2 gency situations to track the location of agents in distress.

3 (c) HAND-HELD GLOBAL POSITIONING SYSTEM DE4 VICES.—The Secretary shall ensure that each United

5 States Border Patrol agent is issued a state-of-the-art

6 hand-held global positioning system device for navigational

7 purposes.

8 (d) NIGHT VISION EQUIPMENT.—The Secretary shall

9 ensure that sufficient quantities of state-of-the-art night

10 vision equipment are procured and maintained to enable

11 each United States Border Patrol agent working during

12 the hours of darkness to be equipped with a portable night

13 vision device.

14 SEC. 164. PERSONAL EQUIPMENT.

15 (a) BORDER ARMOR.—The Secretary shall ensure

16 that every agent is issued high-quality body armor that

17 is appropriate for the climate and risks faced by the agent.

18 Each agent shall be permitted to select from among a vari19 ety of approved brands and styles. Agents shall be strongly

20 encouraged, but not required, to wear such body armor

21 whenever practicable. All body armor shall be replaced not

22 less than every 5 years.

23 (b) WEAPONS.—The Secretary shall ensure that

24 agents are equipped with weapons that are reliable and

25 effective to protect themselves, their fellow agents, and in-
†

96

S 2611 ES

1 nocent third parties from the threats posed by armed

2 criminals. The Secretary shall ensure that the policies of

3 the Department authorize all agents to carry weapons that

4 are suited to the potential threats that they face.

5 (c) UNIFORMS.—The Secretary shall ensure that all

6 agents are provided with all necessary uniform items, in7 cluding outerwear suited to the climate, footwear, belts,

8 holsters, and personal protective equipment, at no cost to

9 such agents. Such items shall be replaced at no cost to

10 such agents as they become worn, unserviceable, or no

11 longer fit properly.

12 SEC. 165. AUTHORIZATION OF APPROPRIATIONS.

13 There are authorized to be appropriated to the Sec14 retary such sums as may be necessary for each of the fis15 cal years 2007 through 2011 to carry out this subtitle.

16 TITLE II—INTERIOR

17 ENFORCEMENT

18 SEC. 201. REMOVAL AND DENIAL OF BENEFITS TO TER19 RORIST ALIENS.

20 (a) ASYLUM.—Section 208(b)(2)(A)(v) (8 U.S.C.

21 1158(b)(2)(A)(v)) is amended by striking ‘‘or (VI)’’ and

22 inserting ‘‘(V), (VI), (VII), or (VIII)’’.

23 (b) CANCELLATION OF REMOVAL.—Section

24 240A(c)(4) (8 U.S.C. 1229b(c)(4)) is amended—
†

97

S 2611 ES

1 (1) by striking ‘‘inadmissible under’’ and insert2 ing ‘‘described in’’; and

3 (2) by striking ‘‘deportable under’’ and insert4 ing ‘‘described in’’.

5 (c) VOLUNTARY DEPARTURE.—Section

6 240B(b)(1)(C) (8 U.S.C. 1229c(b)(1)(C)) is amended by

7 striking ‘‘deportable under section 237(a)(2)(A)(iii) or

8 section 237(a)(4)’’ and inserting ‘‘described in paragraph

9 (2)(A)(iii) or (4) of section 237(a)’’.

10 (d) RESTRICTION ON REMOVAL.—Section

11 241(b)(3)(B) (8 U.S.C. 1231(b)(3)(B)) is amended—

12 (1) in clause (iii), by striking ‘‘or’’ at the end;

13 (2) in clause (iv) by striking the period at the

14 end and inserting ‘‘; or’’;

15 (3) by inserting after clause (iv) the following:

16 ‘‘(v) the alien is described in section

17 237(a)(4)(B) (other than an alien de18 scribed in section 212(a)(3)(B)(i)(IV) if

19 the Secretary of Homeland Security deter20 mines that there are not reasonable

21 grounds for regarding the alien as a dan22 ger to the security of the United States).’’;

23 and

24 (4) in the undesignated paragraph, by striking

25 ‘‘For purposes of clause (iv), an alien who is de-
†

98

S 2611 ES

1 scribed in section 237(a)(4)(B) shall be considered

2 to be an alien with respect to whom there are rea3 sonable grounds for regarding as a danger to the se4 curity of the United States.’’.

5 (e) RECORD OF ADMISSION.—Section 249 (8 U.S.C.

6 1259) is amended to read as follows:

7 ‘‘SEC. 249. RECORD OF ADMISSION FOR PERMANENT RESI8 DENCE IN THE CASE OF CERTAIN ALIENS

9 WHO ENTERED THE UNITED STATES PRIOR

10 TO JANUARY 1, 1972.

11 ‘‘A record of lawful admission for permanent resi12 dence may be made, in the discretion of the Secretary of

13 Homeland Security and under such regulations as the Sec14 retary may prescribe, for any alien, as of the date of the

15 approval of the alien’s application or, if entry occurred be16 fore July 1, 1924, as of the date of such entry if no such

17 record is otherwise available, if the alien establishes that

18 the alien—

19 ‘‘(1) is not described in section 212(a)(3)(E) or

20 in section 212(a) (insofar as it relates to criminals,

21 procurers, other immoral persons, subversives, viola22 tors of the narcotics laws, or smugglers of aliens);

23 ‘‘(2) entered the United States before January

24 1, 1972;
†

99

S 2611 ES

1 ‘‘(3) has resided in the United States continu2 ously since such entry;

3 ‘‘(4) is a person of good moral character;

4 ‘‘(5) is not ineligible for citizenship; and

5 ‘‘(6) is not described in section 237(a)(4)(B).’’.

6 (f) EFFECTIVE DATE AND APPLICATION.—The

7 amendments made by this section shall—

8 (1) take effect on the date of the enactment of

9 this Act; and

10 (2) apply to any act or condition constituting a

11 ground for inadmissibility, excludability, or removal

12 occurring or existing on or after the date of the en13 actment of this Act.

14 SEC. 202. DETENTION AND REMOVAL OF ALIENS ORDERED

15 REMOVED.

16 (a) IN GENERAL.—

17 (1) AMENDMENTS.—Section 241(a) (8 U.S.C.

18 1231(a)) is amended—

19 (A) by striking ‘‘Attorney General’’ the

20 first place it appears and inserting ‘‘Secretary

21 of Homeland Security’’;

22 (B) by striking ‘‘Attorney General’’ any

23 other place it appears and inserting ‘‘Sec24 retary’’;

25 (C) in paragraph (1)—
†

100

S 2611 ES

1 (i) in subparagraph (B), by amending

2 clause (ii) to read as follows:

3 ‘‘(ii) If a court, the Board of Immi4 gration Appeals, or an immigration judge

5 orders a stay of the removal of the alien,

6 the expiration date of the stay of re7 moval.’’;

8 (ii) by amending subparagraph (C) to

9 read as follows:

10 ‘‘(C) EXTENSION OF PERIOD.—The re11 moval period shall be extended beyond a period

12 of 90 days and the alien may remain in deten13 tion during such extended period if the alien

14 fails or refuses to—

15 ‘‘(i) make all reasonable efforts to

16 comply with the removal order; or

17 ‘‘(ii) fully cooperate with the Sec18 retary’s efforts to establish the alien’s

19 identity and carry out the removal order,

20 including failing to make timely application

21 in good faith for travel or other documents

22 necessary to the alien’s departure, or con23 spiring or acting to prevent the alien’s re24 moval.’’; and
†

101

S 2611 ES

1 (iii) by adding at the end the fol2 lowing:

3 ‘‘(D) TOLLING OF PERIOD.—If, at the

4 time described in subparagraph (B), the alien is

5 not in the custody of the Secretary under the

6 authority of this Act, the removal period shall

7 not begin until the alien is taken into such cus8 tody. If the Secretary lawfully transfers custody

9 of the alien during the removal period to an10 other Federal agency or to a State or local gov11 ernment agency in connection with the official

12 duties of such agency, the removal period shall

13 be tolled, and shall recommence on the date on

14 which the alien is returned to the custody of the

15 Secretary.’’;

16 (D) in paragraph (2), by adding at the end

17 the following: ‘‘If a court, the Board of Immi18 gration Appeals, or an immigration judge or19 ders a stay of removal of an alien who is sub20 ject to an administrative final order of removal,

21 the Secretary, in the exercise of discretion, may

22 detain the alien during the pendency of such

23 stay of removal.’’;

24 (E) in paragraph (3), by amending sub25 paragraph (D) to read as follows:
†

102

S 2611 ES

1 ‘‘(D) to obey reasonable restrictions on the

2 alien’s conduct or activities, or to perform af3 firmative acts, that the Secretary prescribes for

4 the alien—

5 ‘‘(i) to prevent the alien from ab6 sconding;

7 ‘‘(ii) for the protection of the commu8 nity; or

9 ‘‘(iii) for other purposes related to the

10 enforcement of the immigration laws.’’;

11 (F) in paragraph (6), by striking ‘‘removal

12 period and, if released,’’ and inserting ‘‘removal

13 period, in the discretion of the Secretary, with14 out any limitations other than those specified in

15 this section, until the alien is removed. If an

16 alien is released, the alien’’;

17 (G) by redesignating paragraph (7) as

18 paragraph (10); and

19 (H) by inserting after paragraph (6) the

20 following:

21 ‘‘(7) PAROLE.—If an alien detained pursuant to

22 paragraph (6) is an applicant for admission, the

23 Secretary of Homeland Security, in the Secretary’s

24 discretion, may parole the alien under section

25 212(d)(5) and may provide, notwithstanding section
†

103

S 2611 ES

1 212(d)(5), that the alien shall not be returned to

2 custody unless either the alien violates the conditions

3 of the alien’s parole or the alien’s removal becomes

4 reasonably foreseeable, provided that in no cir5 cumstance shall such alien be considered admitted.

6 ‘‘(8) ADDITIONAL RULES FOR DETENTION OR

7 RELEASE OF ALIENS.—The following procedures

8 shall apply to an alien detained under this section:

9 ‘‘(A) DETENTION REVIEW PROCESS FOR

10 ALIENS WHO HAVE EFFECTED AN ENTRY AND

11 FULLY COOPERATE WITH REMOVAL.—The Sec12 retary of Homeland Security shall establish an

13 administrative review process to determine

14 whether an alien described in subparagraph (B)

15 should be detained or released after the removal

16 period in accordance with this paragraph.

17 ‘‘(B) ALIEN DESCRIBED.—An alien is de18 scribed in this subparagraph if the alien—

19 ‘‘(i) has effected an entry into the

20 United States;

21 ‘‘(ii) has made all reasonable efforts

22 to comply with the alien’s removal order;

23 ‘‘(iii) has cooperated fully with the

24 Secretary’s efforts to establish the alien’s

25 identity and to carry out the removal
†

104

S 2611 ES

1 order, including making timely application

2 in good faith for travel or other documents

3 necessary for the alien’s departure; and

4 ‘‘(iv) has not conspired or acted to

5 prevent removal.

6 ‘‘(C) EVIDENCE.—In making a determina7 tion under subparagraph (A), the Secretary—

8 ‘‘(i) shall consider any evidence sub9 mitted by the alien;

10 ‘‘(ii) may consider any other evidence,

11 including—

12 ‘‘(I) any information or assist13 ance provided by the Department of

14 State or other Federal agency; and

15 ‘‘(II) any other information avail16 able to the Secretary pertaining to the

17 ability to remove the alien.

18 ‘‘(D) AUTHORITY TO DETAIN FOR 90 DAYS

19 BEYOND REMOVAL PERIOD.—The Secretary, in

20 the exercise of the Secretary’s discretion and

21 without any limitations other than those speci22 fied in this section, may detain an alien for 90

23 days beyond the removal period (including any

24 extension of the removal period under para25 graph (1)(C)).
†

105

S 2611 ES

1 ‘‘(E) AUTHORITY TO DETAIN FOR ADDI2 TIONAL PERIOD.—The Secretary, in the exer3 cise of the Secretary’s discretion and without

4 any limitations other than those specified in

5 this section, may detain an alien beyond the 90-

6 day period authorized under subparagraph (D)

7 until the alien is removed, if the Secretary—

8 ‘‘(i) determines that there is a signifi9 cant likelihood that the alien will be re10 moved in the reasonably foreseeable future;

11 or

12 ‘‘(ii) certifies in writing—

13 ‘‘(I) in consultation with the Sec14 retary of Health and Human Services,

15 that the alien has a highly contagious

16 disease that poses a threat to public

17 safety;

18 ‘‘(II) after receipt of a written

19 recommendation from the Secretary of

20 State, that the release of the alien

21 would likely have serious adverse for22 eign policy consequences for the

23 United States;

24 ‘‘(III) based on information avail25 able to the Secretary (including classi-
†

106

S 2611 ES

1 fied, sensitive, or national security in2 formation, and regardless of the

3 grounds upon which the alien was or4 dered removed), that there is reason

5 to believe that the release of the alien

6 would threaten the national security

7 of the United States;

8 ‘‘(IV) that—

9 ‘‘(aa) the release of the alien

10 would threaten the safety of the

11 community or any person, and

12 conditions of release cannot rea13 sonably be expected to ensure the

14 safety of the community or any

15 person; and

16 ‘‘(bb) the alien—

17 ‘‘(AA) has been con18 victed of 1 or more aggra19 vated felonies (as defined in

20 section 101(a)(43)(A)), or of

21 1 or more attempts or con22 spiracies to commit any such

23 aggravated felonies for an

24 aggregate term of imprison25 ment of at least 5 years; or
†

107

S 2611 ES

1 ‘‘(BB) has committed a

2 crime of violence (as defined

3 in section 16 of title 18,

4 United States Code, but not

5 including a purely political

6 offense) and, because of a

7 mental condition or person8 ality disorder and behavior

9 associated with that condi10 tion or disorder, is likely to

11 engage in acts of violence in

12 the future; or

13 ‘‘(V) that—

14 ‘‘(aa) the release of the alien

15 would threaten the safety of the

16 community or any person, not17 withstanding conditions of release

18 designed to ensure the safety of

19 the community or any person;

20 and

21 ‘‘(bb) the alien has been

22 convicted of 1 or more aggra23 vated felonies (as defined in sec24 tion 101(a)(43)) for which the

25 alien was sentenced to an aggre-
†

108

S 2611 ES

1 gate term of imprisonment of not

2 less than 1 year.

3 ‘‘(F) ADMINISTRATIVE REVIEW PROC4 ESS.—The Secretary, without any limitations

5 other than those specified in this section, may

6 detain an alien pending a determination under

7 subparagraph (E)(ii), if the Secretary has initi8 ated the administrative review process identified

9 in subparagraph (A) not later than 30 days

10 after the expiration of the removal period (in11 cluding any extension of the removal period

12 under paragraph (1)(C)).

13 ‘‘(G) RENEWAL AND DELEGATION OF CER14 TIFICATION.—

15 ‘‘(i) RENEWAL.—The Secretary may

16 renew a certification under subparagraph

17 (E)(ii) every 6 months, without limitation,

18 after providing the alien with an oppor19 tunity to request reconsideration of the

20 certification and to submit documents or

21 other evidence in support of that request.

22 If the Secretary does not renew such cer23 tification, the Secretary shall release the

24 alien, pursuant to subparagraph (H).
†

109

S 2611 ES

1 ‘‘(ii) DELEGATION.—Notwithstanding

2 any other provision of law, the Secretary

3 may not delegate the authority to make or

4 renew a certification described in subclause

5 (II), (III), or (V) of subparagraph (E)(ii)

6 to any employee reporting to the Assistant

7 Secretary for Immigration and Customs

8 Enforcement.

9 ‘‘(iii) HEARING.—The Secretary may

10 request that the Attorney General, or a

11 designee of the Attorney General, provide

12 for a hearing to make the determination

13 described in subparagraph

14 (E)(ii)(IV)(bb)(BB).

15 ‘‘(H) RELEASE ON CONDITIONS.—If it is

16 determined that an alien should be released

17 from detention, the Secretary may, in the Sec18 retary’s discretion, impose conditions on release

19 in accordance with the regulations prescribed

20 pursuant to paragraph (3).

21 ‘‘(I) REDETENTION.—The Secretary, with22 out any limitations other than those specified in

23 this section, may detain any alien subject to a

24 final removal order who has previously been re25 leased from custody if—
†

110

S 2611 ES

1 ‘‘(i) the alien fails to comply with the

2 conditions of release;

3 ‘‘(ii) the alien fails to continue to sat4 isfy the conditions described in subpara5 graph (B); or

6 ‘‘(iii) upon reconsideration, the Sec7 retary determines that the alien can be de8 tained under subparagraph (E).

9 ‘‘(J) APPLICABILITY.—This paragraph and

10 paragraphs (6) and (7) shall apply to any alien

11 returned to custody under subparagraph (I) as

12 if the removal period terminated on the day of

13 the redetention.

14 ‘‘(K) DETENTION REVIEW PROCESS FOR

15 ALIENS WHO HAVE EFFECTED AN ENTRY AND

16 FAIL TO COOPERATE WITH REMOVAL.—The

17 Secretary shall detain an alien until the alien

18 makes all reasonable efforts to comply with a

19 removal order and to cooperate fully with the

20 Secretary’s efforts, if the alien—

21 ‘‘(i) has effected an entry into the

22 United States; and

23 ‘‘(ii)(I) and the alien faces a signifi24 cant likelihood that the alien will be re25 moved in the reasonably foreseeable future,
†

111

S 2611 ES

1 or would have been removed if the alien

2 had not—

3 ‘‘(aa) failed or refused to make

4 all reasonable efforts to comply with a

5 removal order;

6 ‘‘(bb) failed or refused to fully

7 cooperate with the Secretary’s efforts

8 to establish the alien’s identity and

9 carry out the removal order, including

10 the failure to make timely application

11 in good faith for travel or other docu12 ments necessary to the alien’s depar13 ture; or

14 ‘‘(cc) conspired or acted to pre15 vent removal; or

16 ‘‘(II) the Secretary makes a certifi17 cation as specified in subparagraph (E), or

18 the renewal of a certification specified in

19 subparagraph (G).

20 ‘‘(L) DETENTION REVIEW PROCESS FOR

21 ALIENS WHO HAVE NOT EFFECTED AN

22 ENTRY.—Except as otherwise provided in this

23 subparagraph, the Secretary shall follow the

24 guidelines established in section 241.4 of title 8,

25 Code of Federal Regulations, when detaining
†

112

S 2611 ES

1 aliens who have not effected an entry. The Sec2 retary may decide to apply the review process

3 outlined in this paragraph.

4 ‘‘(9) JUDICIAL REVIEW.—Without regard to the

5 place of confinement, judicial review of any action or

6 decision made pursuant to paragraph (6), (7), or (8)

7 shall be available exclusively in a habeas corpus pro8 ceeding brought in a United States district court

9 and only if the alien has exhausted all administrative

10 remedies (statutory and nonstatutory) available to

11 the alien as of right.’’.

12 (2) EFFECTIVE DATE.—The amendments made

13 by paragraph (1)—

14 (A) shall take effect on the date of the en15 actment of this Act; and

16 (B) shall apply to—

17 (i) any alien subject to a final admin18 istrative removal, deportation, or exclusion

19 order that was issued before, on, or after

20 the date of the enactment of this Act; and

21 (ii) any act or condition occurring or

22 existing before, on, or after the date of the

23 enactment of this Act.

24 (b) CRIMINAL DETENTION OF ALIENS.—Section

25 3142 of title 18, United States Code, is amended—
†

113

S 2611 ES

1 (1) in subsection (e)—

2 (A) by redesignating paragraphs (1), (2),

3 and (3) as subparagraphs (A), (B), and (C), re4 spectively;

5 (B) by inserting ‘‘(1)’’ before ‘‘If, after a

6 hearing’’;

7 (C) in subparagraphs (B) and (C), as re8 designated, by striking ‘‘paragraph (1)’’ and in9 serting ‘‘subparagraph (A)’’; and

10 (D) by adding after subparagraph (C), as

11 redesignated, the following:

12 ‘‘(2) Subject to rebuttal by the person, it shall be pre13 sumed that no condition or combination of conditions will

14 reasonably assure the appearance of the person as re15 quired if the judicial officer finds that there is probable

16 cause to believe that the person—

17 ‘‘(A) is an alien; and

18 ‘‘(B)(i) has no lawful immigration status in the

19 United States;

20 ‘‘(ii) is the subject of a final order of removal;

21 or

22 ‘‘(iii) has committed a felony offense under sec23 tion 911, 922(g)(5), 1015, 1028, 1425, or 1426 of

24 this title, chapter 75 or 77 of this title, or section

25 243, 274, 275, 276, 277, or 278 of the Immigration
†

114

S 2611 ES

1 and Nationality Act (8 U.S.C. 1253, 1324, 1325,

2 1326, 2327, and 1328).’’; and

3 (2) in subsection (g)(3)—

4 (A) in subparagraph (A), by striking

5 ‘‘and’’ at the end; and

6 (B) by adding at the end the following:

7 ‘‘(C) the person’s immigration status;

8 and’’.

9 SEC. 203. AGGRAVATED FELONY.

10 (a) DEFINITION OF AGGRAVATED FELONY.—Section

11 101(a)(43) (8 U.S.C. 1101(a)(43)) is amended—

12 (1) by striking ‘‘The term ‘aggravated felony’

13 means—’’ and inserting ‘‘Notwithstanding any other

14 provision of law (except for the provision providing

15 an effective date for section 203 of the Comprehen16 sive Immigration Reform Act of 2006), the term ‘ag17 gravated felony’ applies to an offense described in

18 this paragraph, whether in violation of Federal or

19 State law and to such an offense in violation of the

20 law of a foreign country, for which the term of im21 prisonment was completed within the previous 15

22 years, even if the length of the term of imprisonment

23 is based on recidivist or other enhancements and re24 gardless of whether the conviction was entered be-
†

115

S 2611 ES

1 fore, on, or after September 30, 1996, and means—

2 ’’;

3 (2) in subparagraph (A), by striking ‘‘murder,

4 rape, or sexual abuse of a minor;’’ and inserting

5 ‘‘murder, rape, or sexual abuse of a minor, whether

6 or not the minority of the victim is established by

7 evidence contained in the record of conviction or by

8 evidence extrinsic to the record of conviction;’’;

9 (3) in subparagraph (N), by striking ‘‘para10 graph (1)(A) or (2) of’’;

11 (4) in subparagraph (O), by striking ‘‘section

12 275(a) or 276 committed by an alien who was pre13 viously deported on the basis of a conviction for an

14 offense described in another subparagraph of this

15 paragraph’’ and inserting ‘‘section 275 or 276 for

16 which the term of imprisonment is at least 1 year’’;

17 (5) in subparagraph (U), by striking ‘‘an at18 tempt or conspiracy to commit an offense described

19 in this paragraph’’ and inserting ‘‘aiding or abetting

20 an offense described in this paragraph, or soliciting,

21 counseling, procuring, commanding, or inducing an22 other, attempting, or conspiring to commit such an

23 offense’’; and

24 (6) by striking the undesignated matter fol25 lowing subparagraph (U).
†

116

S 2611 ES

1 (b) EFFECTIVE DATE AND APPLICATION.—

2 (1) IN GENERAL.—The amendments made by

3 subsection (a) shall—

4 (A) take effect on the date of the enact5 ment of this Act; and

6 (B) apply to any act that occurred on or

7 after the date of the enactment of this Act.

8 (2) APPLICATION OF IIRAIRA AMENDMENTS.—

9 The amendments to section 101(a)(43) of the Immi10 gration and Nationality Act made by section 321 of

11 the Illegal Immigration Reform and Immigrant Re12 sponsibility Act of 1996 (division C of Public Law

13 104–208; 110 Stat. 3009–627) shall continue to

14 apply, whether the conviction was entered before, on,

15 or after September 30, 1996.

16 SEC. 204. TERRORIST BARS.

17 (a) DEFINITION OF GOOD MORAL CHARACTER.—

18 Section 101(f) (8 U.S.C. 1101(f)) is amended—

19 (1) by inserting after paragraph (1) the fol20 lowing:

21 ‘‘(2) an alien described in section 212(a)(3) or

22 237(a)(4), as determined by the Secretary of Home23 land Security or Attorney General based upon any

24 relevant information or evidence, including classified,

25 sensitive, or national security information;’’;
†

117

S 2611 ES

1 (2) in paragraph (8), by striking ‘‘(as defined

2 in subsection (a)(43))’’ and inserting the following:

3 ‘‘, regardless of whether the crime was defined as an

4 aggravated felony under subsection (a)(43) at the

5 time of the conviction, unless—

6 ‘‘(A) the person completed the term of im7 prisonment and sentence not later than 10

8 years before the date of application; and

9 ‘‘(B) the Secretary of Homeland Security

10 or the Attorney General waives the application

11 of this paragraph; or’’; and

12 (3) in the undesignated matter following para13 graph (9), by striking ‘‘a finding that for other rea14 sons such person is or was not of good moral char15 acter’’ and inserting the following: ‘‘a discretionary

16 finding for other reasons that such a person is or

17 was not of good moral character. In determining an

18 applicant’s moral character, the Secretary of Home19 land Security and the Attorney General may take

20 into consideration the applicant’s conduct and acts

21 at any time and are not limited to the period during

22 which good moral character is required.’’.

23 (b) PENDING PROCEEDINGS.—Section 204(b) (8

24 U.S.C. 1154(b)) is amended by adding at the end the fol25 lowing: ‘‘A petition may not be approved under this section
†

118

S 2611 ES

1 if there is any administrative or judicial proceeding

2 (whether civil or criminal) pending against the petitioner

3 that could directly or indirectly result in the petitioner’s

4 denaturalization or the loss of the petitioner’s lawful per5 manent resident status.’’.

6 (c) CONDITIONAL PERMANENT RESIDENT STATUS.—

7 (1) IN GENERAL.—Section 216(e) (8 U.S.C.

8 1186a(e)) is amended by inserting ‘‘if the alien has

9 had the conditional basis removed pursuant to this

10 section’’ before the period at the end.

11 (2) CERTAIN ALIEN ENTREPRENEURS.—Section

12 216A(e) (8 U.S.C. 1186b(e)) is amended by insert13 ing ‘‘if the alien has had the conditional basis re14 moved pursuant to this section’’ before the period at

15 the end.

16 (d) JUDICIAL REVIEW OF NATURALIZATION APPLI17 CATIONS.—Section 310(c) (8 U.S.C. 1421(c)) is

18 amended—

19 (1) by inserting ‘‘, not later than 120 days after

20 the Secretary of Homeland Security’s final deter21 mination,’’ after ‘‘may’’; and

22 (2) by adding at the end the following: ‘‘Except

23 that in any proceeding, other than a proceeding

24 under section 340, the court shall review for sub25 stantial evidence the administrative record and find-
†

119

S 2611 ES

1 ings of the Secretary of Homeland Security regard2 ing whether an alien is a person of good moral char3 acter, understands and is attached to the principles

4 of the Constitution of the United States, or is well

5 disposed to the good order and happiness of the

6 United States. The petitioner shall have the burden

7 of showing that the Secretary’s denial of the applica8 tion was contrary to law.’’.

9 (e) PERSONS ENDANGERING NATIONAL SECURITY.—

10 Section 316 (8 U.S.C. 1427) is amended by adding at the

11 end the following:

12 ‘‘(g) PERSONS ENDANGERING THE NATIONAL SECU13 RITY.—A person may not be naturalized if the Secretary

14 of Homeland Security determines, based upon any rel15 evant information or evidence, including classified, sen16 sitive, or national security information, that the person

17 was once an alien described in section 212(a)(3) or

18 237(a)(4).’’.

19 (f) CONCURRENT NATURALIZATION AND REMOVAL

20 PROCEEDINGS.—Section 318 (8 U.S.C. 1429) is amended

21 by striking ‘‘the Attorney General if’’ and all that follows

22 and inserting: ‘‘the Secretary of Homeland Security or any

23 court if there is pending against the applicant any removal

24 proceeding or other proceeding to determine the appli25 cant’s inadmissibility or deportability, or to determine
†

120

S 2611 ES

1 whether the applicant’s lawful permanent resident status

2 should be rescinded, regardless of when such proceeding

3 was commenced. The findings of the Attorney General in

4 terminating removal proceedings or canceling the removal

5 of an alien under this Act shall not be deemed binding

6 in any way upon the Secretary of Homeland Security with

7 respect to the question of whether such person has estab8 lished eligibility for naturalization in accordance with this

9 title.’’.

10 (g) DISTRICT COURT JURISDICTION.—Section

11 336(b) (8 U.S.C. 1447(b)) is amended to read as follows:

12 ‘‘(b) REQUEST FOR HEARING BEFORE DISTRICT

13 COURT.—If there is a failure to render a final administra14 tive decision under section 335 before the end of the 180-

15 day period beginning on the date on which the Secretary

16 of Homeland Security completes all examinations and

17 interviews required under such section, the applicant may

18 apply to the district court for the district in which the

19 applicant resides for a hearing on the matter. The Sec20 retary shall notify the applicant when such examinations

21 and interviews have been completed. Such district court

22 shall only have jurisdiction to review the basis for delay

23 and remand the matter, with appropriate instructions, to

24 the Secretary for the Secretary’s determination on the ap25 plication.’’.
†

121

S 2611 ES

1 (h) EFFECTIVE DATE.—The amendments made by

2 this section—

3 (1) shall take effect on the date of the enact4 ment of this Act; and

5 (2) shall apply to any act that occurred on or

6 after such date of enactment.

7 SEC. 205. INCREASED CRIMINAL PENALTIES RELATED TO

8 GANG VIOLENCE, REMOVAL, AND ALIEN

9 SMUGGLING.

10 (a) CRIMINAL STREET GANGS.—

11 (1) INADMISSIBILITY.—Section 212(a)(2) (8

12 U.S.C. 1182(a)(2)) is amended—

13 (A) by redesignating subparagraph (F) as

14 subparagraph (J); and

15 (B) by inserting after subparagraph (E)

16 the following:

17 ‘‘(F) MEMBERS OF CRIMINAL STREET

18 GANGS.—Unless the Secretary of Homeland Se19 curity or the Attorney General waives the appli20 cation of this subparagraph, any alien who a

21 consular officer, the Attorney General, or the

22 Secretary of Homeland Security knows or has

23 reason to believe—
†

122

S 2611 ES

1 ‘‘(i) is, or has been, a member of a

2 criminal street gang (as defined in section

3 521(a) of title 18, United States Code); or

4 ‘‘(ii) has participated in the activities

5 of a criminal street gang, knowing or hav6 ing reason to know that such activities pro7 moted, furthered, aided, or supported the

8 illegal activity of the criminal gang,

9 is inadmissible.’’.

10 (2) DEPORTABILITY.—Section 237(a)(2) (8

11 U.S.C. 1227(a)(2)) is amended by adding at the end

12 the following:

13 ‘‘(F) MEMBERS OF CRIMINAL STREET

14 GANGS.—Unless the Secretary of Homeland Se15 curity or the Attorney General waives the appli16 cation of this subparagraph, any alien who the

17 Secretary of Homeland Security or the Attorney

18 General knows or has reason to believe—

19 ‘‘(i) is, or at any time after admission

20 has been, a member of a criminal street

21 gang (as defined in section 521(a) of title

22 18, United States Code); or

23 ‘‘(ii) has participated in the activities

24 of a criminal street gang, knowing or hav25 ing reason to know that such activities pro-
†

123

S 2611 ES

1 moted, furthered, aided, or supported the

2 illegal activity of the criminal gang,

3 is deportable.’’.

4 (3) TEMPORARY PROTECTED STATUS.—Section

5 244 (8 U.S.C. 1254a) is amended—

6 (A) by striking ‘‘Attorney General’’ each

7 place it appears and inserting ‘‘Secretary of

8 Homeland Security’’;

9 (B) in subsection (b)(3)—

10 (i) in subparagraph (B), by striking

11 the last sentence and inserting the fol12 lowing: ‘‘Notwithstanding any other provi13 sion of this section, the Secretary of

14 Homeland Security may, for any reason

15 (including national security), terminate or

16 modify any designation under this section.

17 Such termination or modification is effec18 tive upon publication in the Federal Reg19 ister, or after such time as the Secretary

20 may designate in the Federal Register.’’;

21 (ii) in subparagraph (C), by striking

22 ‘‘a period of 12 or 18 months’’ and insert23 ing ‘‘any other period not to exceed 18

24 months’’;

25 (C) in subsection (c)—
†

124

S 2611 ES

1 (i) in paragraph (1)(B), by striking

2 ‘‘The amount of any such fee shall not ex3 ceed $50.’’;

4 (ii) in paragraph (2)(B)—

5 (I) in clause (i), by striking ‘‘,

6 or’’ at the end;

7 (II) in clause (ii), by striking the

8 period at the end and inserting ‘‘; or’’;

9 and

10 (III) by adding at the end the

11 following:

12 ‘‘(iii) the alien is, or at any time after

13 admission has been, a member of a crimi14 nal street gang (as defined in section

15 521(a) of title 18, United States Code).’’;

16 and

17 (D) in subsection (d)—

18 (i) by striking paragraph (3); and

19 (ii) in paragraph (4), by adding at the

20 end the following: ‘‘The Secretary of

21 Homeland Security may detain an alien

22 provided temporary protected status under

23 this section whenever appropriate under

24 any other provision of law.’’.
†

125

S 2611 ES

1 (b) PENALTIES RELATED TO REMOVAL.—Section

2 243 (8 U.S.C. 1253) is amended—

3 (1) in subsection (a)(1)—

4 (A) in the matter preceding subparagraph

5 (A), by inserting ‘‘212(a) or’’ after ‘‘section’’;

6 and

7 (B) in the matter following subparagraph

8 (D)—

9 (i) by striking ‘‘or imprisoned not

10 more than four years’’ and inserting ‘‘and

11 imprisoned for not less than 6 months or

12 more than 5 years’’; and

13 (ii) by striking ‘‘, or both’’;

14 (2) in subsection (b), by striking ‘‘not more

15 than $1000 or imprisoned for not more than one

16 year, or both’’ and inserting ‘‘under title 18, United

17 States Code, and imprisoned for not less than 6

18 months or more than 5 years (or for not more than

19 10 years if the alien is a member of any of the class20 es described in paragraphs (1)(E), (2), (3), and (4)

21 of section 237(a)).’’; and

22 (3) by amending subsection (d) to read as fol23 lows:

24 ‘‘(d) DENYING VISAS TO NATIONALS OF COUNTRY

25 DENYING OR DELAYING ACCEPTING ALIEN.—The Sec-
†

126

S 2611 ES

1 retary of Homeland Security, after making a determina2 tion that the government of a foreign country has denied

3 or unreasonably delayed accepting an alien who is a cit4 izen, subject, national, or resident of that country after

5 the alien has been ordered removed, and after consultation

6 with the Secretary of State, may instruct the Secretary

7 of State to deny a visa to any citizen, subject, national,

8 or resident of that country until the country accepts the

9 alien that was ordered removed.’’.

10 (c) ALIEN SMUGGLING AND RELATED OFFENSES.—

11 (1) IN GENERAL.—Section 274 (8 U.S.C.

12 1324), is amended to read as follows:

13 ‘‘SEC. 274. ALIEN SMUGGLING AND RELATED OFFENSES.

14 ‘‘(a) CRIMINAL OFFENSES AND PENALTIES.—

15 ‘‘(1) PROHIBITED ACTIVITIES.—Except as pro16 vided in paragraph (3), a person shall be punished

17 as provided under paragraph (2), if the person—

18 ‘‘(A) facilitates, encourages, directs, or in19 duces a person to come to or enter the United

20 States, or to cross the border to the United

21 States, knowing or in reckless disregard of the

22 fact that such person is an alien who lacks law23 ful authority to come to, enter, or cross the bor24 der to the United States;
†

127

S 2611 ES

1 ‘‘(B) facilitates, encourages, directs, or in2 duces a person to come to or enter the United

3 States, or to cross the border to the United

4 States, at a place other than a designated port

5 of entry or place other than as designated by

6 the Secretary of Homeland Security, knowing

7 or in reckless disregard of the fact that such

8 person is an alien and regardless of whether

9 such alien has official permission or lawful au10 thority to be in the United States;

11 ‘‘(C) transports, moves, harbors, conceals,

12 or shields from detection a person outside of

13 the United States knowing or in reckless dis14 regard of the fact that such person is an alien

15 in unlawful transit from 1 country to another

16 or on the high seas, under circumstances in

17 which the alien is seeking to enter the United

18 States without official permission or legal au19 thority;

20 ‘‘(D) encourages or induces a person to re21 side in the United States, knowing or in reck22 less disregard of the fact that such person is an

23 alien who lacks lawful authority to reside in the

24 United States;
†

128

S 2611 ES

1 ‘‘(E) transports or moves a person in the

2 United States, knowing or in reckless disregard

3 of the fact that such person is an alien who

4 lacks lawful authority to enter or be in the

5 United States, if the transportation or move6 ment will further the alien’s illegal entry into or

7 illegal presence in the United States;

8 ‘‘(F) harbors, conceals, or shields from de9 tection a person in the United States, knowing

10 or in reckless disregard of the fact that such

11 person is an alien who lacks lawful authority to

12 be in the United States; or

13 ‘‘(G) conspires or attempts to commit any

14 of the acts described in subparagraphs (A)

15 through (F).

16 ‘‘(2) CRIMINAL PENALTIES.—A person who vio17 lates any provision under paragraph (1)—

18 ‘‘(A) except as provided in subparagraphs

19 (C) through (G), if the offense was not com20 mitted for commercial advantage, profit, or pri21 vate financial gain, shall be fined under title 18,

22 United States Code, imprisoned for not more

23 than 5 years, or both;

24 ‘‘(B) except as provided in subparagraphs

25 (C) through (G), if the offense was committed
†

129

S 2611 ES

1 for commercial advantage, profit, or private fi2 nancial gain—

3 ‘‘(i) if the violation is the offender’s

4 first violation under this subparagraph,

5 shall be fined under such title, imprisoned

6 for not more than 20 years, or both; or

7 ‘‘(ii) if the violation is the offender’s

8 second or subsequent violation of this sub9 paragraph, shall be fined under such title,

10 imprisoned for not less than 3 years or

11 more than 20 years, or both;

12 ‘‘(C) if the offense furthered or aided the

13 commission of any other offense against the

14 United States or any State that is punishable

15 by imprisonment for more than 1 year, shall be

16 fined under such title, imprisoned for not less

17 than 5 years or more than 20 years, or both;

18 ‘‘(D) shall be fined under such title, im19 prisoned not less than 5 years or more than 20

20 years, or both, if the offense created a substan21 tial and foreseeable risk of death, a substantial

22 and foreseeable risk of serious bodily injury (as

23 defined in section 2119(2) of title 18, United

24 States Code), or inhumane conditions to an25 other person, including—
†

130

S 2611 ES

1 ‘‘(i) transporting the person in an en2 gine compartment, storage compartment,

3 or other confined space;

4 ‘‘(ii) transporting the person at an ex5 cessive speed or in excess of the rated ca6 pacity of the means of transportation; or

7 ‘‘(iii) transporting the person in, har8 boring the person in, or otherwise sub9 jecting the person to crowded or dangerous

10 conditions;

11 ‘‘(E) if the offense caused serious bodily

12 injury (as defined in section 2119(2) of title 18,

13 United States Code) to any person, shall be

14 fined under such title, imprisoned for not less

15 than 7 years or more than 30 years, or both;

16 ‘‘(F) shall be fined under such title and

17 imprisoned for not less than 10 years or more

18 than 30 years if the offense involved an alien

19 who the offender knew or had reason to believe

20 was—

21 ‘‘(i) engaged in terrorist activity (as

22 defined in section 212(a)(3)(B)); or

23 ‘‘(ii) intending to engage in terrorist

24 activity;
†

131

S 2611 ES

1 ‘‘(G) if the offense caused or resulted in

2 the death of any person, shall be punished by

3 death or imprisoned for a term of years not less

4 than 10 years and up to life, and fined under

5 title 18, United States Code.

6 ‘‘(3) LIMITATION.—It is not a violation of sub7 paragraph (D), (E), or (F) of paragraph (1)—

8 ‘‘(A) for a religious denomination having a

9 bona fide nonprofit, religious organization in

10 the United States, or the agents or officers of

11 such denomination or organization, to encour12 age, invite, call, allow, or enable an alien who

13 is present in the United States to perform the

14 vocation of a minister or missionary for the de15 nomination or organization in the United States

16 as a volunteer who is not compensated as an

17 employee, notwithstanding the provision of

18 room, board, travel, medical assistance, and

19 other basic living expenses, provided the min20 ister or missionary has been a member of the

21 denomination for at least 1 year; or

22 ‘‘(B) for an individual or organization, not

23 previously convicted of a violation of this sec24 tion, to provide an alien who is present in the

25 United States with humanitarian assistance, in-
†

132

S 2611 ES

1 cluding medical care, housing, counseling, vic2 tim services, and food, or to transport the alien

3 to a location where such assistance can be ren4 dered.

5 ‘‘(4) EXTRATERRITORIAL JURISDICTION.—

6 There is extraterritorial Federal jurisdiction over the

7 offenses described in this subsection.

8 ‘‘(b) EMPLOYMENT OF UNAUTHORIZED ALIENS.—

9 ‘‘(1) CRIMINAL OFFENSE AND PENALTIES.—

10 Any person who, during any 12-month period, know11 ingly employs 10 or more individuals with actual

12 knowledge or in reckless disregard of the fact that

13 the individuals are aliens described in paragraph (2),

14 shall be fined under title 18, United States Code,

15 imprisoned for not more than 10 years, or both.

16 ‘‘(2) DEFINITION.—An alien described in this

17 paragraph is an alien who—

18 ‘‘(A) is an unauthorized alien (as defined

19 in section 274A(i));

20 ‘‘(B) is present in the United States with21 out lawful authority; and

22 ‘‘(C) has been brought into the United

23 States in violation of this subsection.

24 ‘‘(c) SEIZURE AND FORFEITURE.—
†

133

S 2611 ES

1 ‘‘(1) IN GENERAL.—Any real or personal prop2 erty used to commit or facilitate the commission of

3 a violation of this section, the gross proceeds of such

4 violation, and any property traceable to such prop5 erty or proceeds, shall be subject to forfeiture.

6 ‘‘(2) APPLICABLE PROCEDURES.—Seizures and

7 forfeitures under this subsection shall be governed

8 by the provisions of chapter 46 of title 18, United

9 States Code, relating to civil forfeitures, except that

10 such duties as are imposed upon the Secretary of

11 the Treasury under the customs laws described in

12 section 981(d) shall be performed by such officers,

13 agents, and other persons as may be designated for

14 that purpose by the Secretary of Homeland Security.

15 ‘‘(3) PRIMA FACIE EVIDENCE IN DETERMINA16 TIONS OF VIOLATIONS.—In determining whether a

17 violation of subsection (a) has occurred, prima facie

18 evidence that an alien involved in the alleged viola19 tion lacks lawful authority to come to, enter, reside

20 in, remain in, or be in the United States or that

21 such alien had come to, entered, resided in, re22 mained in, or been present in the United States in

23 violation of law shall include—

24 ‘‘(A) any order, finding, or determination

25 concerning the alien’s status or lack of status
†

134

S 2611 ES

1 made by a Federal judge or administrative ad2 judicator (including an immigration judge or

3 immigration officer) during any judicial or ad4 ministrative proceeding authorized under Fed5 eral immigration law;

6 ‘‘(B) official records of the Department of

7 Homeland Security, the Department of Justice,

8 or the Department of State concerning the

9 alien’s status or lack of status; and

10 ‘‘(C) testimony by an immigration officer

11 having personal knowledge of the facts con12 cerning the alien’s status or lack of status.

13 ‘‘(d) AUTHORITY TO ARREST.—No officer or person

14 shall have authority to make any arrests for a violation

15 of any provision of this section except—

16 ‘‘(1) officers and employees designated by the

17 Secretary of Homeland Security, either individually

18 or as a member of a class; and

19 ‘‘(2) other officers responsible for the enforce20 ment of Federal criminal laws.

21 ‘‘(e) ADMISSIBILITY OF VIDEOTAPED WITNESS TES22 TIMONY.—Notwithstanding any provision of the Federal

23 Rules of Evidence, the videotaped or otherwise audio24 visually preserved deposition of a witness to a violation

25 of subsection (a) who has been deported or otherwise ex-
†

135

S 2611 ES

1 pelled from the United States, or is otherwise unavailable

2 to testify, may be admitted into evidence in an action

3 brought for that violation if—

4 ‘‘(1) the witness was available for cross exam5 ination at the deposition by the party, if any, oppos6 ing admission of the testimony; and

7 ‘‘(2) the deposition otherwise complies with the

8 Federal Rules of Evidence.

9 ‘‘(f) OUTREACH PROGRAM.—

10 ‘‘(1) IN GENERAL.—The Secretary of Homeland

11 Security, in consultation with the Attorney General

12 and the Secretary of State, as appropriate, shall—

13 ‘‘(A) develop and implement an outreach

14 program to educate people in and out of the

15 United States about the penalties for bringing

16 in and harboring aliens in violation of this sec17 tion; and

18 ‘‘(B) establish the American Local and In19 terior Enforcement Needs (ALIEN) Task Force

20 to identify and respond to the use of Federal,

21 State, and local transportation infrastructure to

22 further the trafficking of unlawful aliens within

23 the United States.

24 ‘‘(2) FIELD OFFICES.—The Secretary of Home25 land Security, after consulting with State and local
†

136

S 2611 ES

1 government officials, shall establish such field offices

2 as may be necessary to carry out this subsection.

3 ‘‘(3) AUTHORIZATION OF APPROPRIATIONS.—

4 There are authorized to be appropriated such sums

5 are necessary for the fiscal years 2007 through 2011

6 to carry out this subsection.

7 ‘‘(g) DEFINITIONS.—In this section:

8 ‘‘(1) CROSSED THE BORDER INTO THE UNITED

9 STATES.—An alien is deemed to have crossed the

10 border into the United States regardless of whether

11 the alien is free from official restraint.

12 ‘‘(2) LAWFUL AUTHORITY.—The term ‘lawful

13 authority’ means permission, authorization, or li14 cense that is expressly provided for in the immigra15 tion laws of the United States or accompanying reg16 ulations. The term does not include any such au17 thority secured by fraud or otherwise obtained in

18 violation of law or authority sought, but not ap19 proved. No alien shall be deemed to have lawful au20 thority to come to, enter, reside in, remain in, or be

21 in the United States if such coming to, entry, resi22 dence, remaining, or presence was, is, or would be

23 in violation of law.

24 ‘‘(3) PROCEEDS.—The term ‘proceeds’ includes

25 any property or interest in property obtained or re-
†

137

S 2611 ES

1 tained as a consequence of an act or omission in vio2 lation of this section.

3 ‘‘(4) UNLAWFUL TRANSIT.—The term ‘unlawful

4 transit’ means travel, movement, or temporary pres5 ence that violates the laws of any country in which

6 the alien is present or any country from which the

7 alien is traveling or moving.’’.

8 (2) CLERICAL AMENDMENT.—The table of con9 tents is amended by striking the item relating to sec10 tion 274 and inserting the following:

‘‘Sec. 274. Alien smuggling and related offenses.’’.

11 (d) PROHIBITING CARRYING OR USING A FIREARM

12 DURING AND IN RELATION TO AN ALIEN SMUGGLING

13 CRIME.—Section 924(c) of title 18, United States Code,

14 is amended—

15 (1) in paragraph (1)—

16 (A) in subparagraph (A), by inserting ‘‘,

17 alien smuggling crime,’’ after ‘‘any crime of vio18 lence’’;

19 (B) in subparagraph (A), by inserting ‘‘,

20 alien smuggling crime,’’ after ‘‘such crime of vi21 olence’’;

22 (C) in subparagraph (D)(ii), by inserting

23 ‘‘, alien smuggling crime,’’ after ‘‘crime of vio24 lence’’; and

25 (2) by adding at the end the following:
†

138

S 2611 ES

1 ‘‘(6) For purposes of this subsection, the term ‘alien

2 smuggling crime’ means any felony punishable under sec3 tion 274(a), 277, or 278 of the Immigration and Nation4 ality Act (8 U.S.C. 1324(a), 1327, and 1328).’’.

5 SEC. 206. ILLEGAL ENTRY.

6 (a) IN GENERAL.—Section 275 (8 U.S.C. 1325) is

7 amended to read as follows:

8 ‘‘SEC. 275. ILLEGAL ENTRY.

9 ‘‘(a) IN GENERAL.—

10 ‘‘(1) CRIMINAL OFFENSES.—An alien shall be

11 subject to the penalties set forth in paragraph (2) if

12 the alien—

13 ‘‘(A) knowingly enters or crosses the bor14 der into the United States at any time or place

15 other than as designated by the Secretary of

16 Homeland Security;

17 ‘‘(B) knowingly eludes examination or in18 spection by an immigration officer (including

19 failing to stop at the command of such officer),

20 or a customs or agriculture inspection at a port

21 of entry; or

22 ‘‘(C) knowingly enters or crosses the bor23 der to the United States by means of a know24 ingly false or misleading representation or the

25 knowing concealment of a material fact (includ-
†

139

S 2611 ES

1 ing such representation or concealment in the

2 context of arrival, reporting, entry, or clearance

3 requirements of the customs laws, immigration

4 laws, agriculture laws, or shipping laws).

5 ‘‘(2) CRIMINAL PENALTIES.—Any alien who

6 violates any provision under paragraph (1)—

7 ‘‘(A) shall, for the first violation, be fined

8 under title 18, United States Code, imprisoned

9 not more than 6 months, or both;

10 ‘‘(B) shall, for a second or subsequent vio11 lation, or following an order of voluntary depar12 ture, be fined under such title, imprisoned not

13 more than 2 years, or both;

14 ‘‘(C) if the violation occurred after the

15 alien had been convicted of 3 or more mis16 demeanors or for a felony, shall be fined under

17 such title, imprisoned not more than 10 years,

18 or both;

19 ‘‘(D) if the violation occurred after the

20 alien had been convicted of a felony for which

21 the alien received a term of imprisonment of

22 not less than 30 months, shall be fined under

23 such title, imprisoned not more than 15 years,

24 or both; and
†

140

S 2611 ES

1 ‘‘(E) if the violation occurred after the

2 alien had been convicted of a felony for which

3 the alien received a term of imprisonment of

4 not less than 60 months, such alien shall be

5 fined under such title, imprisoned not more

6 than 20 years, or both.

7 ‘‘(3) PRIOR CONVICTIONS.—The prior convic8 tions described in subparagraphs (C) through (E) of

9 paragraph (2) are elements of the offenses described

10 in that paragraph and the penalties in such subpara11 graphs shall apply only in cases in which the convic12 tion or convictions that form the basis for the addi13 tional penalty are—

14 ‘‘(A) alleged in the indictment or informa15 tion; and

16 ‘‘(B) proven beyond a reasonable doubt at

17 trial or admitted by the defendant.

18 ‘‘(4) DURATION OF OFFENSE.—An offense

19 under this subsection continues until the alien is dis20 covered within the United States by an immigration

21 officer.

22 ‘‘(5) ATTEMPT.—Whoever attempts to commit

23 any offense under this section shall be punished in

24 the same manner as for a completion of such of25 fense.
†

141

S 2611 ES

1 ‘‘(b) IMPROPER TIME OR PLACE; CIVIL PEN2 ALTIES.—

3 ‘‘(1) IN GENERAL.—Any alien who is appre4 hended while entering, attempting to enter, or know5 ingly crossing or attempting to cross the border to

6 the United States at a time or place other than as

7 designated by immigration officers shall be subject

8 to a civil penalty, in addition to any criminal or

9 other civil penalties that may be imposed under any

10 other provision of law, in an amount equal to—

11 ‘‘(A) not less than $50 or more than $250

12 for each such entry, crossing, attempted entry,

13 or attempted crossing; or

14 ‘‘(B) twice the amount specified in para15 graph (1) if the alien had previously been sub16 ject to a civil penalty under this subsection.

17 ‘‘(2) CROSSED THE BORDER DEFINED.—In this

18 section, an alien is deemed to have crossed the bor19 der if the act was voluntary, regardless of whether

20 the alien was under observation at the time of the

21 crossing.’’.

22 (b) CLERICAL AMENDMENT.—The table of contents

23 is amended by striking the item relating to section 275

24 and inserting the following:

‘‘Sec. 275. Illegal entry.’’.
†

142

S 2611 ES

1 SEC. 207. ILLEGAL REENTRY.

2 Section 276 (8 U.S.C. 1326) is amended to read as

3 follows:

4 ‘‘SEC. 276. REENTRY OF REMOVED ALIEN.

5 ‘‘(a) REENTRY AFTER REMOVAL.—Any alien who

6 has been denied admission, excluded, deported, or re7 moved, or who has departed the United States while an

8 order of exclusion, deportation, or removal is outstanding,

9 and subsequently enters, attempts to enter, crosses the

10 border to, attempts to cross the border to, or is at any

11 time found in the United States, shall be fined under title

12 18, United States Code, imprisoned not more than 2

13 years, or both.

14 ‘‘(b) REENTRY OF CRIMINAL OFFENDERS.—Not15 withstanding the penalty provided in subsection (a), if an

16 alien described in that subsection—

17 ‘‘(1) was convicted for 3 or more misdemeanors

18 or a felony before such removal or departure, the

19 alien shall be fined under title 18, United States

20 Code, imprisoned not more than 10 years, or both;

21 ‘‘(2) was convicted for a felony before such re22 moval or departure for which the alien was sen23 tenced to a term of imprisonment of not less than

24 30 months, the alien shall be fined under such title,

25 imprisoned not more than 15 years, or both;
†

143

S 2611 ES

1 ‘‘(3) was convicted for a felony before such re2 moval or departure for which the alien was sen3 tenced to a term of imprisonment of not less than

4 60 months, the alien shall be fined under such title,

5 imprisoned not more than 20 years, or both;

6 ‘‘(4) was convicted for 3 felonies before such re7 moval or departure, the alien shall be fined under

8 such title, imprisoned not more than 20 years, or

9 both; or

10 ‘‘(5) was convicted, before such removal or de11 parture, for murder, rape, kidnaping, or a felony of12 fense described in chapter 77 (relating to peonage

13 and slavery) or 113B (relating to terrorism) of such

14 title, the alien shall be fined under such title, impris15 oned not more than 20 years, or both.

16 ‘‘(c) REENTRY AFTER REPEATED REMOVAL.—Any

17 alien who has been denied admission, excluded, deported,

18 or removed 3 or more times and thereafter enters, at19 tempts to enter, crosses the border to, attempts to cross

20 the border to, or is at any time found in the United States,

21 shall be fined under title 18, United States Code, impris22 oned not more than 10 years, or both.

23 ‘‘(d) PROOF OF PRIOR CONVICTIONS.—The prior

24 convictions described in subsection (b) are elements of the

25 crimes described in that subsection, and the penalties in
†

144

S 2611 ES

1 that subsection shall apply only in cases in which the con2 viction or convictions that form the basis for the additional

3 penalty are—

4 ‘‘(1) alleged in the indictment or information;

5 and

6 ‘‘(2) proven beyond a reasonable doubt at trial

7 or admitted by the defendant.

8 ‘‘(e) AFFIRMATIVE DEFENSES.—It shall be an af9 firmative defense to a violation of this section that—

10 ‘‘(1) prior to the alleged violation, the alien had

11 sought and received the express consent of the Sec12 retary of Homeland Security to reapply for admis13 sion into the United States; or

14 ‘‘(2) with respect to an alien previously denied

15 admission and removed, the alien—

16 ‘‘(A) was not required to obtain such ad17 vance consent under the Immigration and Na18 tionality Act or any prior Act; and

19 ‘‘(B) had complied with all other laws and

20 regulations governing the alien’s admission into

21 the United States.

22 ‘‘(f) LIMITATION ON COLLATERAL ATTACK ON UN23 DERLYING REMOVAL ORDER.—In a criminal proceeding

24 under this section, an alien may not challenge the validity

25 of any prior removal order concerning the alien unless the
†

145

S 2611 ES

1 alien demonstrates by clear and convincing evidence

2 that—

3 ‘‘(1) the alien exhausted all administrative rem4 edies that may have been available to seek relief

5 against the order;

6 ‘‘(2) the removal proceedings at which the order

7 was issued improperly deprived the alien of the op8 portunity for judicial review; and

9 ‘‘(3) the entry of the order was fundamentally

10 unfair.

11 ‘‘(g) REENTRY OF ALIEN REMOVED PRIOR TO COM12 PLETION OF TERM OF IMPRISONMENT.—Any alien re13 moved pursuant to section 241(a)(4) who enters, attempts

14 to enter, crosses the border to, attempts to cross the bor15 der to, or is at any time found in, the United States shall

16 be incarcerated for the remainder of the sentence of im17 prisonment which was pending at the time of deportation

18 without any reduction for parole or supervised release un19 less the alien affirmatively demonstrates that the Sec20 retary of Homeland Security has expressly consented to

21 the alien’s reentry. Such alien shall be subject to such

22 other penalties relating to the reentry of removed aliens

23 as may be available under this section or any other provi24 sion of law.
†

146

S 2611 ES

1 ‘‘(h) LIMITATION.—It is not aiding and abetting a

2 violation of this section for an individual to provide an

3 alien with emergency humanitarian assistance, including

4 emergency medical care and food, or to transport the alien

5 to a location where such assistance can be rendered with6 out compensation or the expectation of compensation.

7 ‘‘(i) DEFINITIONS.—In this section:

8 ‘‘(1) CROSSES THE BORDER.—The term

9 ‘crosses the border’ applies if an alien acts volun10 tarily, regardless of whether the alien was under ob11 servation at the time of the crossing.

12 ‘‘(2) FELONY.—Term ‘felony’ means any crimi13 nal offense punishable by a term of imprisonment of

14 more than 1 year under the laws of the United

15 States, any State, or a foreign government.

16 ‘‘(3) MISDEMEANOR.—The term ‘misdemeanor’

17 means any criminal offense punishable by a term of

18 imprisonment of not more than 1 year under the ap19 plicable laws of the United States, any State, or a

20 foreign government.

21 ‘‘(4) REMOVAL.—The term ‘removal’ includes

22 any denial of admission, exclusion, deportation, or

23 removal, or any agreement by which an alien stipu24 lates or agrees to exclusion, deportation, or removal.
†

147

S 2611 ES

1 ‘‘(5) STATE.—The term ‘State’ means a State

2 of the United States, the District of Columbia, and

3 any commonwealth, territory, or possession of the

4 United States.’’.

5 SEC. 208. REFORM OF PASSPORT, VISA, AND IMMIGRATION

6 FRAUD OFFENSES.

7 (a) PASSPORT, VISA, AND IMMIGRATION FRAUD.—

8 (1) IN GENERAL.—Chapter 75 of title 18,

9 United States Code, is amended to read as follows:

10 ‘‘CHAPTER 75—PASSPORT, VISA, AND

11 IMMIGRATION FRAUD

‘‘Sec.

‘‘1541. Trafficking in passports.

‘‘1542. False statement in an application for a passport.

‘‘1543. Forgery and unlawful production of a passport.

‘‘1544. Misuse of a passport.

‘‘1545. Schemes to defraud aliens.

‘‘1546. Immigration and visa fraud.

‘‘1547. Marriage fraud.

‘‘1548. Attempts and conspiracies.

‘‘1549. Alternative penalties for certain offenses.

‘‘1550. Seizure and forfeiture.

‘‘1551. Additional jurisdiction.

‘‘1552. Additional venue.

‘‘1553. Definitions.

‘‘1554. Authorized law enforcement activities.

‘‘1555. Exception for refugees and asylees.

12 ‘‘§ 1541. Trafficking in passports

13 ‘‘(a) MULTIPLE PASSPORTS.—Any person who, dur14 ing any 3-year period, knowingly—

15 ‘‘(1) and without lawful authority produces,

16 issues, or transfers 10 or more passports;

17 ‘‘(2) forges, counterfeits, alters, or falsely

18 makes 10 or more passports;
†

148

S 2611 ES

1 ‘‘(3) secures, possesses, uses, receives, buys,

2 sells, or distributes 10 or more passports, knowing

3 the passports to be forged, counterfeited, altered,

4 falsely made, stolen, procured by fraud, or produced

5 or issued without lawful authority; or

6 ‘‘(4) completes, mails, prepares, presents, signs,

7 or submits 10 or more applications for a United

8 States passport (including any supporting docu9 mentation), knowing the applications to contain any

10 false statement or representation,

11 shall be fined under this title, imprisoned not more than

12 20 years, or both.

13 ‘‘(b) PASSPORT MATERIALS.—Any person who know14 ingly and without lawful authority produces, counterfeits,

15 secures, possesses, or uses any official paper, seal,

16 hologram, image, text, symbol, stamp, engraving, plate, or

17 other material used to make a passport shall be fined

18 under this title, imprisoned not more than 20 years, or

19 both.

20 ‘‘§ 1542. False statement in an application for a pass21 port

22 ‘‘Any person who knowingly—

23 ‘‘(1) makes any false statement or representa24 tion in an application for a United States passport

25 (including any supporting documentation);
†

149

S 2611 ES

1 ‘‘(2) completes, mails, prepares, presents, signs,

2 or submits an application for a United States pass3 port (including any supporting documentation)

4 knowing the application to contain any false state5 ment or representation; or

6 ‘‘(3) causes or attempts to cause the production

7 of a passport by means of any fraud or false applica8 tion for a United States passport (including any

9 supporting documentation), if such production oc10 curs or would occur at a facility authorized by the

11 Secretary of State for the production of passports,

12 shall be fined under this title, imprisoned not more than

13 15 years, or both.

14 ‘‘§ 1543. Forgery and unlawful production of a pass15 port

16 ‘‘(a) FORGERY.—Any person who—

17 ‘‘(1) knowingly forges, counterfeits, alters, or

18 falsely makes any passport; or

19 ‘‘(2) knowingly transfers any passport knowing

20 it to be forged, counterfeited, altered, falsely made,

21 stolen, or to have been produced or issued without

22 lawful authority,

23 shall be fined under this title, imprisoned not more than

24 15 years, or both.
†

150

S 2611 ES

1 ‘‘(b) UNLAWFUL PRODUCTION.—Any person who

2 knowingly and without lawful authority—

3 ‘‘(1) produces, issues, authorizes, or verifies a

4 passport in violation of the laws, regulations, or

5 rules governing the issuance of the passport;

6 ‘‘(2) produces, issues, authorizes, or verifies a

7 United States passport for or to any person not

8 owing allegiance to the United States; or

9 ‘‘(3) transfers or furnishes a passport to a per10 son for use when such person is not the person for

11 whom the passport was issued or designed,

12 shall be fined under this title, imprisoned not more than

13 15 years, or both.

14 ‘‘§ 1544. Misuse of a passport

15 ‘‘(a) IN GENERAL.—Any person who—

16 ‘‘(1) knowingly uses any passport issued or de17 signed for the use of another;

18 ‘‘(2) knowingly uses any passport in violation of

19 the conditions or restrictions therein contained, or in

20 violation of the laws, regulations, or rules governing

21 the issuance and use of the passport;

22 ‘‘(3) knowingly secures, possesses, uses, re23 ceives, buys, sells, or distributes any passport know24 ing it to be forged, counterfeited, altered, falsely
†

151

S 2611 ES

1 made, procured by fraud, or produced or issued

2 without lawful authority; or

3 ‘‘(4) knowingly violates the terms and condi4 tions of any safe conduct duly obtained and issued

5 under the authority of the United States,

6 shall be fined under this title, imprisoned not more than

7 15 years, or both.

8 ‘‘(b) ENTRY; FRAUD.—Any person who knowingly

9 uses any passport, knowing the passport to be forged,

10 counterfeited, altered, falsely made, procured by fraud,

11 produced or issued without lawful authority, or issued or

12 designed for the use of another—

13 ‘‘(1) to enter or to attempt to enter the United

14 States; or

15 ‘‘(2) to defraud the United States, a State, or

16 a political subdivision of a State,

17 shall be fined under this title, imprisoned not more than

18 15 years, or both.

19 ‘‘§ 1545. Schemes to defraud aliens

20 ‘‘(a) IN GENERAL.—Any person who knowingly exe21 cutes a scheme or artifice, in connection with any matter

22 that is authorized by or arises under Federal immigration

23 laws, or any matter the offender claims or represents is

24 authorized by or arises under Federal immigration laws—

25 ‘‘(1) to defraud any person, or
†

152

S 2611 ES

1 ‘‘(2) to obtain or receive from any person, by

2 means of false or fraudulent pretenses, representa3 tions, promises, money or anything else of value,

4 shall be fined under this title, imprisoned not more than

5 15 years, or both.

6 ‘‘(b) MISREPRESENTATION.—Any person who know7 ingly and falsely represents himself to be an attorney in

8 any matter arising under Federal immigration laws shall

9 be fined under this title, imprisoned not more than 15

10 years, or both.

11 ‘‘§ 1546. Immigration and visa fraud

12 ‘‘(a) IN GENERAL.—Any person who knowingly—

13 ‘‘(1) uses any immigration document issued or

14 designed for the use of another;

15 ‘‘(2) forges, counterfeits, alters, or falsely

16 makes any immigration document;

17 ‘‘(3) completes, mails, prepares, presents, signs,

18 or submits any immigration document knowing it to

19 contain any materially false statement or representa20 tion;

21 ‘‘(4) secures, possesses, uses, transfers, re22 ceives, buys, sells, or distributes any immigration

23 document knowing it to be forged, counterfeited, al24 tered, falsely made, stolen, procured by fraud, or

25 produced or issued without lawful authority;
†

153

S 2611 ES

1 ‘‘(5) adopts or uses a false or fictitious name to

2 evade or to attempt to evade the immigration laws;

3 or

4 ‘‘(6) transfers or furnishes an immigration doc5 ument to a person without lawful authority for use

6 if such person is not the person for whom the immi7 gration document was issued or designed,

8 shall be fined under this title, imprisoned not more than

9 15 years, or both.

10 ‘‘(b) MULTIPLE VIOLATIONS.—Any person who, dur11 ing any 3-year period, knowingly—

12 ‘‘(1) and without lawful authority produces,

13 issues, or transfers 10 or more immigration docu14 ments;

15 ‘‘(2) forges, counterfeits, alters, or falsely

16 makes 10 or more immigration documents;

17 ‘‘(3) secures, possesses, uses, buys, sells, or dis18 tributes 10 or more immigration documents, know19 ing the immigration documents to be forged, coun20 terfeited, altered, stolen, falsely made, procured by

21 fraud, or produced or issued without lawful author22 ity; or

23 ‘‘(4) completes, mails, prepares, presents, signs,

24 or submits 10 or more immigration documents
†

154

S 2611 ES

1 knowing the documents to contain any materially

2 false statement or representation,

3 shall be fined under this title, imprisoned not more than

4 20 years, or both.

5 ‘‘(c) IMMIGRATION DOCUMENT MATERIALS.—Any

6 person who knowingly and without lawful authority pro7 duces, counterfeits, secures, possesses, or uses any official

8 paper, seal, hologram, image, text, symbol, stamp, engrav9 ing, plate, or other material, used to make an immigration

10 document shall be fined under this title, imprisoned not

11 more than 20 years, or both.

12 ‘‘§ 1547. Marriage fraud

13 ‘‘(a) EVASION OR MISREPRESENTATION.—Any per14 son who—

15 ‘‘(1) knowingly enters into a marriage for the

16 purpose of evading any provision of the immigration

17 laws; or

18 ‘‘(2) knowingly misrepresents the existence or

19 circumstances of a marriage—

20 ‘‘(A) in an application or document author21 ized by the immigration laws; or

22 ‘‘(B) during any immigration proceeding

23 conducted by an administrative adjudicator (in24 cluding an immigration officer or examiner, a
†

155

S 2611 ES

1 consular officer, an immigration judge, or a

2 member of the Board of Immigration Appeals),

3 shall be fined under this title, imprisoned not more than

4 10 years, or both.

5 ‘‘(b) MULTIPLE MARRIAGES.—Any person who—

6 ‘‘(1) knowingly enters into 2 or more marriages

7 for the purpose of evading any immigration law; or

8 ‘‘(2) knowingly arranges, supports, or facilitates

9 2 or more marriages designed or intended to evade

10 any immigration law,

11 shall be fined under this title, imprisoned not more than

12 20 years, or both.

13 ‘‘(c) COMMERCIAL ENTERPRISE.—Any person who

14 knowingly establishes a commercial enterprise for the pur15 pose of evading any provision of the immigration laws

16 shall be fined under this title, imprisoned for not more

17 than 10 years, or both.

18 ‘‘(d) DURATION OF OFFENSE.—

19 ‘‘(1) IN GENERAL.—An offense under sub20 section (a) or (b) continues until the fraudulent na21 ture of the marriage or marriages is discovered by

22 an immigration officer.

23 ‘‘(2) COMMERCIAL ENTERPRISE.—An offense

24 under subsection (c) continues until the fraudulent
†

156

S 2611 ES

1 nature of commercial enterprise is discovered by an

2 immigration officer or other law enforcement officer.

3 ‘‘§ 1548. Attempts and conspiracies

4 ‘‘Any person who attempts or conspires to violate any

5 section of this chapter shall be punished in the same man6 ner as a person who completed a violation of that section.

7 ‘‘§ 1549. Alternative penalties for certain offenses

8 ‘‘(a) TERRORISM.—Any person who violates any sec9 tion of this chapter—

10 ‘‘(1) knowing that such violation will facilitate

11 an act of international terrorism or domestic ter12 rorism (as those terms are defined in section 2331);

13 or

14 ‘‘(2) with the intent to facilitate an act of inter15 national terrorism or domestic terrorism,

16 shall be fined under this title, imprisoned not more than

17 25 years, or both.

18 ‘‘(b) OFFENSE AGAINST GOVERNMENT.—Any person

19 who violates any section of this chapter—

20 ‘‘(1) knowing that such violation will facilitate

21 the commission of any offense against the United

22 States (other than an offense in this chapter) or

23 against any State, which offense is punishable by

24 imprisonment for more than 1 year; or
†

157

S 2611 ES

1 ‘‘(2) with the intent to facilitate the commission

2 of any offense against the United States (other than

3 an offense in this chapter) or against any State,

4 which offense is punishable by imprisonment for

5 more than 1 year,

6 shall be fined under this title, imprisoned not more than

7 20 years, or both.

8 ‘‘§ 1550. Seizure and forfeiture

9 ‘‘(a) FORFEITURE.—Any property, real or personal,

10 used to commit or facilitate the commission of a violation

11 of any section of this chapter, the gross proceeds of such

12 violation, and any property traceable to such property or

13 proceeds, shall be subject to forfeiture.

14 ‘‘(b) APPLICABLE LAW.—Seizures and forfeitures

15 under this section shall be governed by the provisions of

16 chapter 46 relating to civil forfeitures, except that such

17 duties as are imposed upon the Secretary of the Treasury

18 under the customs laws described in section 981(d) shall

19 be performed by such officers, agents, and other persons

20 as may be designated for that purpose by the Secretary

21 of Homeland Security, the Secretary of State, or the At22 torney General.

23 ‘‘§ 1551. Additional jurisdiction

24 ‘‘(a) IN GENERAL.—Any person who commits an of25 fense under this chapter within the special maritime and
†

158

S 2611 ES

1 territorial jurisdiction of the United States shall be pun2 ished as provided under this chapter.

3 ‘‘(b) EXTRATERRITORIAL JURISDICTION.—Any per4 son who commits an offense under this chapter outside

5 the United States shall be punished as provided under this

6 chapter if—

7 ‘‘(1) the offense involves a United States immi8 gration document (or any document purporting to be

9 such a document) or any matter, right, or benefit

10 arising under or authorized by Federal immigration

11 laws;

12 ‘‘(2) the offense is in or affects foreign com13 merce;

14 ‘‘(3) the offense affects, jeopardizes, or poses a

15 significant risk to the lawful administration of Fed16 eral immigration laws, or the national security of the

17 United States;

18 ‘‘(4) the offense is committed to facilitate an

19 act of international terrorism (as defined in section

20 2331) or a drug trafficking crime (as defined in sec21 tion 929(a)(2)) that affects or would affect the na22 tional security of the United States;

23 ‘‘(5) the offender is a national of the United

24 States (as defined in section 101(a)(22) of the Im25 migration and Nationality Act (8 U.S.C.
†

159

S 2611 ES

1 1101(a)(22))) or an alien lawfully admitted for per2 manent residence in the United States (as defined in

3 section 101(a)(20) of such Act); or

4 ‘‘(6) the offender is a stateless person whose

5 habitual residence is in the United States.

6 ‘‘§ 1552. Additional venue

7 ‘‘(a) IN GENERAL.—An offense under section 1542

8 may be prosecuted in—

9 ‘‘(1) any district in which the false statement or

10 representation was made;

11 ‘‘(2) any district in which the passport applica12 tion was prepared, submitted, mailed, received, proc13 essed, or adjudicated; or

14 ‘‘(3) in the case of an application prepared and

15 adjudicated outside the United States, in the district

16 in which the resultant passport was produced.

17 ‘‘(b) SAVINGS CLAUSE.—Nothing in this section lim18 its the venue otherwise available under sections 3237 and

19 3238.

20 ‘‘§ 1553. Definitions

21 ‘‘As used in this chapter:

22 ‘‘(1) The term ‘falsely make’ means to prepare

23 or complete an immigration document with knowl24 edge or in reckless disregard of the fact that the

25 document—
†

160

S 2611 ES

1 ‘‘(A) contains a statement or representa2 tion that is false, fictitious, or fraudulent;

3 ‘‘(B) has no basis in fact or law; or

4 ‘‘(C) otherwise fails to state a fact which

5 is material to the purpose for which the docu6 ment was created, designed, or submitted.

7 ‘‘(2) The term a ‘false statement or representa8 tion’ includes a personation or an omission.

9 ‘‘(3) The term ‘felony’ means any criminal of10 fense punishable by a term of imprisonment of more

11 than 1 year under the laws of the United States, any

12 State, or a foreign government.

13 ‘‘(4) The term ‘immigration document’—

14 ‘‘(A) means—

15 ‘‘(i) any passport or visa; or

16 ‘‘(ii) any application, petition, affi17 davit, declaration, attestation, form, identi18 fication card, alien registration document,

19 employment authorization document, bor20 der crossing card, certificate, permit,

21 order, license, stamp, authorization, grant

22 of authority, or other evidentiary docu23 ment, arising under or authorized by the

24 immigration laws of the United States; and
†

161

S 2611 ES

1 ‘‘(B) includes any document, photograph,

2 or other piece of evidence attached to or sub3 mitted in support of an immigration document.

4 ‘‘(5) The term ‘immigration laws’ includes—

5 ‘‘(A) the laws described in section

6 101(a)(17) of the Immigration and Nationality

7 Act (8 U.S.C. 1101(a)(17));

8 ‘‘(B) the laws relating to the issuance and

9 use of passports; and

10 ‘‘(C) the regulations prescribed under the

11 authority of any law described in paragraphs

12 (1) and (2).

13 ‘‘(6) The term ‘immigration proceeding’ in14 cludes an adjudication, interview, hearing, or review.

15 ‘‘(7) A person does not exercise ‘lawful author16 ity’ if the person abuses or improperly exercises law17 ful authority the person otherwise holds.

18 ‘‘(8) The term ‘passport’ means a travel docu19 ment attesting to the identity and nationality of the

20 bearer that is issued under the authority of the Sec21 retary of State, a foreign government, or an inter22 national organization; or any instrument purporting

23 to be the same.

24 ‘‘(9) The term ‘produce’ means to make, pre25 pare, assemble, issue, print, authenticate, or alter.
†

162

S 2611 ES

1 ‘‘(10) The term ‘State’ means a State of the

2 United States, the District of Columbia, or any com3 monwealth, territory, or possession of the United

4 States.

5 ‘‘§ 1554. Authorized law enforcement activities

6 ‘‘Nothing in this chapter shall prohibit any lawfully

7 authorized investigative, protective, or intelligence activity

8 of a law enforcement agency of the United States, a State,

9 or a political subdivision of a State, or an intelligence

10 agency of the United States, or any activity authorized

11 under title V of the Organized Crime Control Act of 1970

12 (84 Stat. 933).

13 ‘‘§ 1555. Exception for refugees, asylees, and other

14 vulnerable persons

15 ‘‘(a) IN GENERAL.—If a person believed to have vio16 lated section 1542, 1544, 1546, or 1548 while attempting

17 to enter the United States, without delay, indicates an in18 tention to apply for asylum under section 208 or 241(b)(3)

19 of the Immigration and Nationality Act (8 U.S.C. 1158

20 and 1231), or for relief under the Convention Against Tor21 ture and Other Cruel, Inhuman or Degrading Treatment

22 or Punishment (in accordance with section 208.17 of title

23 8, Code of Federal Regulations), or under section

24 101(a)(15)(T), 101(a)(15)(U), 101(a)(27)(J),

25 101(a)(51), 216(c)(4)(C), 240A(b)(2), or 244(a)(3) (as in
†

163

S 2611 ES

1 effect prior to March 31, 1997) of such Act, or a credible

2 fear of persecution or torture—

3 ‘‘(1) the person shall be referred to an appro4 priate Federal immigration official to review such

5 claim and make a determination if such claim is

6 warranted;

7 ‘‘(2) if the Federal immigration official deter8 mines that the person qualifies for the claimed relief,

9 the person shall not be considered to have violated

10 any such section; and

11 ‘‘(3) if the Federal immigration official deter12 mines that the person does not qualify for the

13 claimed relief, the person shall be referred to an ap14 propriate Federal official for prosecution under this

15 chapter.

16 ‘‘(b) SAVINGS PROVISION.—Nothing in this section

17 shall be construed to diminish, increase, or alter the obli18 gations of refugees or the United States under article

19 31(1) of the Convention Relating to the Status of Refu20 gees, done at Geneva July 28, 1951 (as made applicable

21 by the Protocol Relating to the Status of Refugees, done

22 at New York January 31, 1967 (19 UST 6223)).’’.

23 (2) CLERICAL AMENDMENT.—The table of

24 chapters in title 18, United States Code, is amended
†

164

S 2611 ES

1 by striking the item relating to chapter 75 and in2 serting the following:

‘‘75. Passport, visa, and immigration fraud ............................. 1541’’.

3 (b) PROTECTION FOR LEGITIMATE REFUGEES AND

4 ASYLUM SEEKERS.—Section 208 (8 U.S.C. 1158) is

5 amended by adding at the end the following:

6 ‘‘(e) PROTECTION FOR LEGITIMATE REFUGEES AND

7 ASYLUM SEEKERS.—The Attorney General, in consulta8 tion with the Secretary of Homeland Security, shall de9 velop binding prosecution guidelines for federal prosecu10 tors to ensure that any prosecution of an alien seeking

11 entry into the United States by fraud is consistent with

12 the written terms and limitations of Article 31(1) of the

13 Convention Relating to the Status of Refugees, done at

14 Geneva July 28, 1951 (as made applicable by the Protocol

15 Relating to the Status of Refugees, done at New York

16 January 31, 1967 (19 UST 6223)).’’.

17 SEC. 209. INADMISSIBILITY AND REMOVAL FOR PASSPORT

18 AND IMMIGRATION FRAUD OFFENSES.

19 (a) INADMISSIBILITY.—Section 212(a)(2)(A)(i) (8

20 U.S.C. 1182(a)(2)(A)(i)) is amended—

21 (1) in subclause (I), by striking ‘‘, or’’ at the

22 end and inserting a semicolon;

23 (2) in subclause (II), by striking the comma at

24 the end and inserting ‘‘; or’’; and
†

165

S 2611 ES

1 (3) by inserting after subclause (II) the fol2 lowing:

3 ‘‘(III) a violation of (or a con4 spiracy or attempt to violate) any pro5 vision of chapter 75 of title 18,

6 United States Code,’’.

7 (b) REMOVAL.—Section 237(a)(3)(B)(iii) (8 U.S.C.

8 1227(a)(3)(B)(iii)) is amended to read as follows:

9 ‘‘(iii) of a violation of any provision of

10 chapter 75 of title 18, United States

11 Code,’’.

12 (c) EFFECTIVE DATE.—The amendments made by

13 subsections (a) and (b) shall apply to proceedings pending

14 on or after the date of the enactment of this Act, with

15 respect to conduct occurring on or after that date.

16 SEC. 210. INCARCERATION OF CRIMINAL ALIENS.

17 (a) INSTITUTIONAL REMOVAL PROGRAM.—

18 (1) CONTINUATION.—The Secretary shall con19 tinue to operate the Institutional Removal Program

20 (referred to in this section as the ‘‘Program’’) or

21 shall develop and implement another program to—

22 (A) identify removable criminal aliens in

23 Federal and State correctional facilities;

24 (B) ensure that such aliens are not re25 leased into the community; and
†

166

S 2611 ES

1 (C) remove such aliens from the United

2 States after the completion of their sentences.

3 (2) EXPANSION.—The Secretary may extend

4 the scope of the Program to all States.

5 (b) AUTHORIZATION FOR DETENTION AFTER COM6 PLETION OF STATE OR LOCAL PRISON SENTENCE.—Law

7 enforcement officers of a State or political subdivision of

8 a State may—

9 (1) hold an illegal alien for a period not to ex10 ceed 14 days after the completion of the alien’s

11 State prison sentence to effectuate the transfer of

12 the alien to Federal custody if the alien is removable

13 or not lawfully present in the United States; or

14 (2) issue a detainer that would allow aliens who

15 have served a State prison sentence to be detained

16 by the State prison until authorized employees of the

17 Bureau of Immigration and Customs Enforcement

18 can take the alien into custody.

19 (c) TECHNOLOGY USAGE.—Technology, such as

20 videoconferencing, shall be used to the maximum extent

21 practicable to make the Program available in remote loca22 tions. Mobile access to Federal databases of aliens, such

23 as IDENT, and live scan technology shall be used to the

24 maximum extent practicable to make these resources
†

167

S 2611 ES

1 available to State and local law enforcement agencies in

2 remote locations.

3 (d) REPORT TO CONGRESS.—Not later than 6

4 months after the date of the enactment of this Act, and

5 annually thereafter, the Secretary shall submit a report

6 to Congress on the participation of States in the Program

7 and in any other program authorized under subsection (a).

8 (e) AUTHORIZATION OF APPROPRIATIONS.—There

9 are authorized to be appropriated such sums as may be

10 necessary in each of the fiscal years 2007 through 2011

11 to carry out the Program.

12 SEC. 211. ENCOURAGING ALIENS TO DEPART VOLUN13 TARILY.

14 (a) IN GENERAL.—Section 240B (8 U.S.C. 1229c)

15 is amended—

16 (1) in subsection (a)—

17 (A) by amending paragraph (1) to read as

18 follows:

19 ‘‘(1) INSTEAD OF REMOVAL PROCEEDINGS.—If

20 an alien is not described in paragraph (2)(A)(iii) or

21 (4) of section 237(a), the Secretary of Homeland Se22 curity may permit the alien to voluntarily depart the

23 United States at the alien’s own expense under this

24 subsection instead of being subject to proceedings

25 under section 240.’’;
†

168

S 2611 ES

1 (B) by striking paragraph (3);

2 (C) by redesignating paragraph (2) as

3 paragraph (3);

4 (D) by adding after paragraph (1) the fol5 lowing:

6 ‘‘(2) BEFORE THE CONCLUSION OF REMOVAL

7 PROCEEDINGS.—If an alien is not described in para8 graph (2)(A)(iii) or (4) of section 237(a), the Attor9 ney General may permit the alien to voluntarily de10 part the United States at the alien’s own expense

11 under this subsection after the initiation of removal

12 proceedings under section 240 and before the con13 clusion of such proceedings before an immigration

14 judge.’’;

15 (E) in paragraph (3), as redesignated—

16 (i) by amending subparagraph (A) to

17 read as follows:

18 ‘‘(A) INSTEAD OF REMOVAL.—Subject to

19 subparagraph (C), permission to voluntarily de20 part under paragraph (1) shall not be valid for

21 any period in excess of 120 days. The Secretary

22 may require an alien permitted to voluntarily

23 depart under paragraph (1) to post a voluntary

24 departure bond, to be surrendered upon proof
†

169

S 2611 ES

1 that the alien has departed the United States

2 within the time specified.’’;

3 (ii) by redesignating subparagraphs

4 (B), (C), and (D) as paragraphs (C), (D),

5 and (E), respectively;

6 (iii) by adding after subparagraph (A)

7 the following:

8 ‘‘(B) BEFORE THE CONCLUSION OF RE9 MOVAL PROCEEDINGS.—Permission to volun10 tarily depart under paragraph (2) shall not be

11 valid for any period in excess of 60 days, and

12 may be granted only after a finding that the

13 alien has the means to depart the United States

14 and intends to do so. An alien permitted to vol15 untarily depart under paragraph (2) shall post

16 a voluntary departure bond, in an amount nec17 essary to ensure that the alien will depart, to be

18 surrendered upon proof that the alien has de19 parted the United States within the time speci20 fied. An immigration judge may waive the re21 quirement to post a voluntary departure bond

22 in individual cases upon a finding that the alien

23 has presented compelling evidence that the

24 posting of a bond will pose a serious financial

25 hardship and the alien has presented credible
†

170

S 2611 ES

1 evidence that such a bond is unnecessary to

2 guarantee timely departure.’’;

3 (iv) in subparagraph (C), as redesig4 nated, by striking ‘‘subparagraphs (C)

5 and(D)(ii)’’ and inserting ‘‘subparagraphs

6 (D) and (E)(ii)’’;

7 (v) in subparagraph (D), as redesig8 nated, by striking ‘‘subparagraph (B)’’

9 each place that term appears and inserting

10 ‘‘subparagraph (C)’’; and

11 (vi) in subparagraph (E), as redesig12 nated, by striking ‘‘subparagraph (B)’’

13 each place that term appears and inserting

14 ‘‘subparagraph (C)’’; and

15 (F) in paragraph (4), by striking ‘‘para16 graph (1)’’ and inserting ‘‘paragraphs (1) and

17 (2)’’;

18 (2) in subsection (b)(2), by striking ‘‘a period

19 exceeding 60 days’’ and inserting ‘‘any period in ex20 cess of 45 days’’;

21 (3) by amending subsection (c) to read as fol22 lows:

23 ‘‘(c) CONDITIONS ON VOLUNTARY DEPARTURE.—

24 ‘‘(1) VOLUNTARY DEPARTURE AGREEMENT.—

25 Voluntary departure may only be granted as part of
†

171

S 2611 ES

1 an affirmative agreement by the alien. A voluntary

2 departure agreement under subsection (b) shall in3 clude a waiver of the right to any further motion,

4 appeal, application, petition, or petition for review

5 relating to removal or relief or protection from re6 moval.

7 ‘‘(2) CONCESSIONS BY THE SECRETARY.—In

8 connection with the alien’s agreement to depart vol9 untarily under paragraph (1), the Secretary of

10 Homeland Security may agree to a reduction in the

11 period of inadmissibility under subparagraph (A) or

12 (B)(i) of section 212(a)(9).

13 ‘‘(3) ADVISALS.—Agreements relating to vol14 untary departure granted during removal pro15 ceedings under section 240, or at the conclusion of

16 such proceedings, shall be presented on the record

17 before the immigration judge. The immigration

18 judge shall advise the alien of the consequences of

19 a voluntary departure agreement before accepting

20 such agreement.

21 ‘‘(4) FAILURE TO COMPLY WITH AGREE22 MENT.—

23 ‘‘(A) IN GENERAL.—If an alien agrees to

24 voluntary departure under this section and fails

25 to depart the United States within the time al-
†

172

S 2611 ES

1 lowed for voluntary departure or fails to comply

2 with any other terms of the agreement (includ3 ing failure to timely post any required bond),

4 the alien is—

5 ‘‘(i) ineligible for the benefits of the

6 agreement;

7 ‘‘(ii) subject to the penalties described

8 in subsection (d); and

9 ‘‘(iii) subject to an alternate order of

10 removal if voluntary departure was granted

11 under subsection (a)(2) or (b).

12 ‘‘(B) EFFECT OF FILING TIMELY AP13 PEAL.—If, after agreeing to voluntary depar14 ture, the alien files a timely appeal of the immi15 gration judge’s decision granting voluntary de16 parture, the alien may pursue the appeal in17 stead of the voluntary departure agreement.

18 Such appeal operates to void the alien’s vol19 untary departure agreement and the con20 sequences of such agreement, but precludes the

21 alien from another grant of voluntary departure

22 while the alien remains in the United States.

23 ‘‘(5) VOLUNTARY DEPARTURE PERIOD NOT AF24 FECTED.—Except as expressly agreed to by the Sec25 retary in writing in the exercise of the Secretary’s
†

173

S 2611 ES

1 discretion before the expiration of the period allowed

2 for voluntary departure, no motion, appeal, applica3 tion, petition, or petition for review shall affect, rein4 state, enjoin, delay, stay, or toll the alien’s obligation

5 to depart from the United States during the period

6 agreed to by the alien and the Secretary.’’;

7 (4) by amending subsection (d) to read as fol8 lows:

9 ‘‘(d) PENALTIES FOR FAILURE TO DEPART.—If an

10 alien is permitted to voluntarily depart under this section

11 and fails to voluntarily depart from the United States

12 within the time period specified or otherwise violates the

13 terms of a voluntary departure agreement, the alien will

14 be subject to the following penalties:

15 ‘‘(1) CIVIL PENALTY.—The alien shall be liable

16 for a civil penalty of $3,000. The order allowing vol17 untary departure shall specify the amount of the

18 penalty, which shall be acknowledged by the alien on

19 the record. If the Secretary thereafter establishes

20 that the alien failed to depart voluntarily within the

21 time allowed, no further procedure will be necessary

22 to establish the amount of the penalty, and the Sec23 retary may collect the civil penalty at any time

24 thereafter and by whatever means provided by law.
†

174

S 2611 ES

1 An alien will be ineligible for any benefits under this

2 chapter until this civil penalty is paid.

3 ‘‘(2) INELIGIBILITY FOR RELIEF.—The alien

4 shall be ineligible during the time the alien remains

5 in the United States and for a period of 10 years

6 after the alien’s departure for any further relief

7 under this section and sections 240A, 245, 248, and

8 249. The order permitting the alien to depart volun9 tarily shall inform the alien of the penalties under

10 this subsection.

11 ‘‘(3) REOPENING.—The alien shall be ineligible

12 to reopen the final order of removal that took effect

13 upon the alien’s failure to depart, or upon the alien’s

14 other violations of the conditions for voluntary de15 parture, during the period described in paragraph

16 (2). This paragraph does not preclude a motion to

17 reopen to seek withholding of removal under section

18 241(b)(3) or protection against torture, if the

19 motion—

20 ‘‘(A) presents material evidence of changed

21 country conditions arising after the date of the

22 order granting voluntary departure in the coun23 try to which the alien would be removed; and
†

175

S 2611 ES

1 ‘‘(B) makes a sufficient showing to the sat2 isfaction of the Attorney General that the alien

3 is otherwise eligible for such protection.’’; and

4 (5) by amending subsection (e) to read as fol5 lows:

6 ‘‘(e) ELIGIBILITY.—

7 ‘‘(1) PRIOR GRANT OF VOLUNTARY DEPAR8 TURE.—An alien shall not be permitted to volun9 tarily depart under this section if the Secretary of

10 Homeland Security or the Attorney General pre11 viously permitted the alien to depart voluntarily.

12 ‘‘(2) RULEMAKING.—The Secretary may pro13 mulgate regulations to limit eligibility or impose ad14 ditional conditions for voluntary departure under

15 subsection (a)(1) for any class of aliens. The Sec16 retary or Attorney General may by regulation limit

17 eligibility or impose additional conditions for vol18 untary departure under subsections (a)(2) or (b) of

19 this section for any class or classes of aliens.’’; and

20 (6) in subsection (f), by adding at the end the

21 following: ‘‘Notwithstanding section 242(a)(2)(D) of

22 this Act, sections 1361, 1651, and 2241 of title 28,

23 United States Code, any other habeas corpus provi24 sion, and any other provision of law (statutory or

25 nonstatutory), no court shall have jurisdiction to af-
†

176

S 2611 ES

1 fect, reinstate, enjoin, delay, stay, or toll the period

2 allowed for voluntary departure under this section.’’.

3 (b) RULEMAKING.—The Secretary shall promulgate

4 regulations to provide for the imposition and collection of

5 penalties for failure to depart under section 240B(d) of

6 the Immigration and Nationality Act (8 U.S.C. 1229c(d)).

7 (c) EFFECTIVE DATES.—

8 (1) IN GENERAL.—Except as provided in para9 graph (2), the amendments made by this section

10 shall apply with respect to all orders granting vol11 untary departure under section 240B of the Immi12 gration and Nationality Act (8 U.S.C. 1229c) made

13 on or after the date that is 180 days after the enact14 ment of this Act.

15 (2) EXCEPTION.—The amendment made by

16 subsection (a)(6) shall take effect on the date of the

17 enactment of this Act and shall apply with respect

18 to any petition for review which is filed on or after

19 such date.

20 SEC. 212. DETERRING ALIENS ORDERED REMOVED FROM

21 REMAINING IN THE UNITED STATES UNLAW22 FULLY.

23 (a) INADMISSIBLE ALIENS.—Section 212(a)(9)(A) (8

24 U.S.C. 1182(a)(9)(A)) is amended—
†

177

S 2611 ES

1 (1) in clause (i), by striking ‘‘seeks admission

2 within 5 years of the date of such removal (or within

3 20 years’’ and inserting ‘‘seeks admission not later

4 than 5 years after the date of the alien’s removal (or

5 not later than 20 years after the alien’s removal’’;

6 and

7 (2) in clause (ii), by striking ‘‘seeks admission

8 within 10 years of the date of such alien’s departure

9 or removal (or within 20 years of’’ and inserting

10 ‘‘seeks admission not later than 10 years after the

11 date of the alien’s departure or removal (or not later

12 than 20 years after’’.

13 (b) BAR ON DISCRETIONARY RELIEF.—Section 274D

14 (9 U.S.C. 324d) is amended—

15 (1) in subsection (a), by striking ‘‘Commis16 sioner’’ and inserting ‘‘Secretary of Homeland Secu17 rity’’; and

18 (2) by adding at the end the following:

19 ‘‘(c) INELIGIBILITY FOR RELIEF.—

20 ‘‘(1) IN GENERAL.—Unless a timely motion to

21 reopen is granted under section 240(c)(6), an alien

22 described in subsection (a) shall be ineligible for any

23 discretionary relief from removal (including cancella24 tion of removal and adjustment of status) during the

25 time the alien remains in the United States and for
†

178

S 2611 ES

1 a period of 10 years after the alien’s departure from

2 the United States.

3 ‘‘(2) SAVINGS PROVISION.—Nothing in para4 graph (1) shall preclude a motion to reopen to seek

5 withholding of removal under section 241(b)(3) or

6 protection against torture, if the motion—

7 ‘‘(A) presents material evidence of changed

8 country conditions arising after the date of the

9 final order of removal in the country to which

10 the alien would be removed; and

11 ‘‘(B) makes a sufficient showing to the sat12 isfaction of the Attorney General that the alien

13 is otherwise eligible for such protection.’’.

14 (c) EFFECTIVE DATES.—The amendments made by

15 this section shall take effect on the date of the enactment

16 of this Act with respect to aliens who are subject to a final

17 order of removal entered on or after such date.

18 SEC. 213. PROHIBITION OF THE SALE OF FIREARMS TO, OR

19 THE POSSESSION OF FIREARMS BY CERTAIN

20 ALIENS.

21 Section 922 of title 18, United States Code, is

22 amended—

23 (1) in subsection (d)(5)—

24 (A) in subparagraph (A), by striking ‘‘or’’

25 at the end;
†

179

S 2611 ES

1 (B) in subparagraph (B), by striking

2 ‘‘(y)(2)’’ and all that follows and inserting ‘‘(y),

3 is in a nonimmigrant classification; or’’; and

4 (C) by adding at the end the following:

5 ‘‘(C) has been paroled into the United

6 States under section 212(d)(5) of the Immigra7 tion and Nationality Act (8 U.S.C.

8 1182(d)(5));’’;

9 (2) in subsection (g)(5)—

10 (A) in subparagraph (A), by striking ‘‘or’’

11 at the end;

12 (B) in subparagraph (B), by striking

13 ‘‘(y)(2)’’ and all that follows and inserting ‘‘(y),

14 is in a nonimmigrant classification; or’’; and

15 (C) by adding at the end the following:

16 ‘‘(C) has been paroled into the United

17 States under section 212(d)(5) of the Immigra18 tion and Nationality Act (8 U.S.C.

19 1182(d)(5));’’; and

20 (3) in subsection (y)—

21 (A) in the header, by striking ‘‘ADMITTED

22 UNDER NONIMMIGRANT VISAS’’ and inserting

23 ‘‘IN A NONIMMIGRANT CLASSIFICATION’’;

24 (B) in paragraph (1), by amending sub25 paragraph (B) to read as follows:
†

180

S 2611 ES

1 ‘‘(B) the term ‘nonimmigrant classifica2 tion’ includes all classes of nonimmigrant aliens

3 described in section 101(a)(15) of the Immigra4 tion and Nationality Act (8 U.S.C.

5 1101(a)(15)), or otherwise described in the im6 migration laws (as defined in section

7 101(a)(17) of such Act).’’;

8 (C) in paragraph (2), by striking ‘‘has

9 been lawfully admitted to the United States

10 under a nonimmigrant visa’’ and inserting ‘‘is

11 in a nonimmigrant classification’’; and

12 (D) in paragraph (3)(A), by striking ‘‘Any

13 individual who has been admitted to the United

14 States under a nonimmigrant visa may receive

15 a waiver from the requirements of subsection

16 (g)(5)’’ and inserting ‘‘Any alien in a non17 immigrant classification may receive a waiver

18 from the requirements of subsection (g)(5)(B)’’.

19 SEC. 214. UNIFORM STATUTE OF LIMITATIONS FOR CER20 TAIN IMMIGRATION, NATURALIZATION, AND

21 PEONAGE OFFENSES.

22 (a) IN GENERAL.—Section 3291 of title 18, United

23 States Code, is amended to read as follows:
†

181

S 2611 ES

1 ‘‘§ 3291. Immigration, naturalization, and peonage of2 fenses

3 ‘‘No person shall be prosecuted, tried, or punished

4 for a violation of any section of chapters 69 (relating to

5 nationality and citizenship offenses), 75 (relating to pass6 port, visa, and immigration offenses), or 77 (relating to

7 peonage, slavery, and trafficking in persons), for an at8 tempt or conspiracy to violate any such section, for a viola9 tion of any criminal provision under section 243, 266, 274,

10 275, 276, 277, or 278 of the Immigration and Nationality

11 Act (8 U.S.C. 1253, 1306, 1324, 1325, 1326, 1327, and

12 1328), or for an attempt or conspiracy to violate any such

13 section, unless the indictment is returned or the informa14 tion filed not later than 10 years after the commission

15 of the offense.’’.

16 (b) CLERICAL AMENDMENT.—The table of sections

17 for chapter 213 of title 18, United States Code, is amend18 ed by striking the item relating to section 3291 and insert19 ing the following:

‘‘3291. Immigration, naturalization, and peonage offenses.’’.

20 SEC. 215. DIPLOMATIC SECURITY SERVICE.

21 Section 2709(a)(1) of title 22, United States Code,

22 is amended to read as follows:

23 ‘‘(1) conduct investigations concerning—

24 ‘‘(A) illegal passport or visa issuance or

25 use;
†

182

S 2611 ES

1 ‘‘(B) identity theft or document fraud af2 fecting or relating to the programs, functions,

3 and authorities of the Department of State;

4 ‘‘(C) violations of chapter 77 of title 18,

5 United States Code; and

6 ‘‘(D) Federal offenses committed within

7 the special maritime and territorial jurisdiction

8 of the United States (as defined in section 7(9)

9 of title 18, United States Code);’’.

10 SEC. 216. FIELD AGENT ALLOCATION AND BACKGROUND

11 CHECKS.

12 (a) IN GENERAL.—Section 103 (8 U.S.C. 1103) is

13 amended—

14 (1) by amending subsection (f) to read as fol15 lows:

16 ‘‘(f) MINIMUM NUMBER OF AGENTS IN STATES.—

17 ‘‘(1) IN GENERAL.—The Secretary of Homeland

18 Security shall allocate to each State—

19 ‘‘(A) not fewer than 40 full-time active

20 duty agents of the Bureau of Immigration and

21 Customs Enforcement to—

22 ‘‘(i) investigate immigration viola23 tions; and

24 ‘‘(ii) ensure the departure of all re25 movable aliens; and
†

183

S 2611 ES

1 ‘‘(B) not fewer than 15 full-time active

2 duty agents of the Bureau of Citizenship and

3 Immigration Services to carry out immigration

4 and naturalization adjudication functions.

5 ‘‘(2) WAIVER.—The Secretary may waive the

6 application of paragraph (1) for any State with a

7 population of less than 2,000,000, as most recently

8 reported by the Bureau of the Census’’; and

9 (2) by adding at the end the following:

10 ‘‘(i) Notwithstanding any other provision of law, ap11 propriate background and security checks, as determined

12 by the Secretary of Homeland Security, shall be completed

13 and assessed and any suspected or alleged fraud relating

14 to the granting of any status (including the granting of

15 adjustment of status), relief, protection from removal, or

16 other benefit under this Act shall be investigated and re17 solved before the Secretary or the Attorney General may—

18 ‘‘(1) grant or order the grant of adjustment of

19 status of an alien to that of an alien lawfully admit20 ted for permanent residence;

21 ‘‘(2) grant or order the grant of any other sta22 tus, relief, protection from removal, or other benefit

23 under the immigration laws; or
†

184

S 2611 ES

1 ‘‘(3) issue any documentation evidencing or re2 lated to such grant by the Secretary, the Attorney

3 General, or any court.’’.

4 (b) EFFECTIVE DATE.—The amendment made by

5 subsection (a)(1) shall take effect on the date that is 90

6 days after the date of the enactment of this Act.

7 (c) AUTHORIZATION OF APPROPRIATIONS.—There is

8 authorized to be appropriated to the Director of the Fed9 eral Bureau of Investigations $3,125,000 for each of fiscal

10 years 2007 through 2011 for improving the speed and ac11 curacy of background and security checks conducted by

12 the Federal Bureau of Investigations on behalf of the Bu13 reau of Citizenship and Immigrations Services.

14 (d) REPORT ON BACKGROUND AND SECURITY

15 CHECKS.—

16 (1) IN GENERAL.—Not later than 180 days

17 after the date of the enactment of this Act, the Di18 rector of the Federal Bureau of Investigations shall

19 submit to the Committee on the Judiciary of the

20 Senate and the Committee on the Judiciary of the

21 House of Representatives a report on the back22 ground and security checks conducted by the Fed23 eral Bureau of Investigations on behalf of the Bu24 reau of Citizenship and Immigrations Services
†

185

S 2611 ES

1 (2) CONTENT.—The report required under

2 paragraph (1) shall include—

3 (A) a description of the background and

4 security check program;

5 (B) a statistical breakdown of the back6 ground and security check delays associated

7 with different types of immigration applications;

8 (C) a statistical breakdown of the back9 ground and security check delays by applicant

10 country of origin; and

11 (D) the steps the Federal Bureau of Inves12 tigations is taking to expedite background and

13 security checks that have been pending for

14 more than 60 days.

15 SEC. 217. CONSTRUCTION.

16 (a) IN GENERAL.—Chapter 4 of title III (8 U.S.C.

17 1501 et seq.) is amended by adding at the end the fol18 lowing:

19 ‘‘SEC. 362. CONSTRUCTION.

20 ‘‘(a) IN GENERAL.—Nothing in this Act or in any

21 other provision of law shall be construed to require the

22 Secretary of Homeland Security, the Attorney General,

23 the Secretary of State, the Secretary of Labor, or any

24 other authorized head of any Federal agency to grant any

25 application, approve any petition, or grant or continue any
†

186

S 2611 ES

1 status or benefit under the immigration laws by, to, or

2 on behalf of—

3 ‘‘(1) any alien described in subparagraph (A)(i),

4 (A)(iii), (B), or (F) of section 212(a)(3) or subpara5 graph (A)(i), (A)(iii), or (B) of section 237(a)(4);

6 ‘‘(2) any alien with respect to whom a criminal

7 or other investigation or case is pending that is ma8 terial to the alien’s inadmissibility, deportability, or

9 eligibility for the status or benefit sought; or

10 ‘‘(3) any alien for whom all law enforcement

11 checks, as deemed appropriate by such authorized

12 official, have not been conducted and resolved.

13 ‘‘(b) DENIAL; WITHHOLDING.—An official described

14 in subsection (a) may deny or withhold (with respect to

15 an alien described in subsection (a)(1)) or withhold pend16 ing resolution of the investigation, case, or law enforce17 ment checks (with respect to an alien described in para18 graph (2) or (3) of subsection (a)) any such application,

19 petition, status, or benefit on such basis.’’.

20 (b) CLERICAL AMENDMENT.—The table of contents

21 is amended by inserting after the item relating to section

22 361 the following:

‘‘Sec. 362. Construction.’’.

23 SEC. 218. STATE CRIMINAL ALIEN ASSISTANCE PROGRAM.

24 (a) REIMBURSEMENT FOR COSTS ASSOCIATED WITH

25 PROCESSING CRIMINAL ILLEGAL ALIENS.—The Secretary
†

187

S 2611 ES

1 shall reimburse States and units of local government for

2 costs associated with processing undocumented criminal

3 aliens through the criminal justice system, including—

4 (1) indigent defense;

5 (2) criminal prosecution;

6 (3) autopsies;

7 (4) translators and interpreters; and

8 (5) courts costs.

9 (b) AUTHORIZATION OF APPROPRIATIONS.—

10 (1) PROCESSING CRIMINAL ILLEGAL ALIENS.—

11 There are authorized to be appropriated

12 $400,000,000 for each of the fiscal years 2007

13 through 2012 to carry out subsection (a).

14 (2) COMPENSATION UPON REQUEST.—Section

15 241(i)(5) (8 U.S.C. 1231(i)) is amended to read as

16 follows:

17 ‘‘(5) There are authorized to be appropriated to

18 carry this subsection—

19 ‘‘(A) such sums as may be necessary for

20 fiscal year 2007;

21 ‘‘(B) $750,000,000 for fiscal year 2008;

22 ‘‘(C) $850,000,000 for fiscal year 2009;

23 and

24 ‘‘(D) $950,000,000 for each of the fiscal

25 years 2010 through 2012.’’.
†

188

S 2611 ES

1 (c) TECHNICAL AMENDMENT.—Section 501 of the

2 Immigration Reform and Control Act of 1986 (8 U.S.C.

3 1365) is amended by striking ‘‘Attorney General’’ each

4 place it appears and inserting ‘‘Secretary of Homeland Se5 curity’’.

6 SEC. 219. TRANSPORTATION AND PROCESSING OF ILLEGAL

7 ALIENS APPREHENDED BY STATE AND LOCAL

8 LAW ENFORCEMENT OFFICERS.

9 (a) IN GENERAL.—The Secretary shall provide suffi10 cient transportation and officers to take illegal aliens ap11 prehended by State and local law enforcement officers into

12 custody for processing at a detention facility operated by

13 the Department.

14 (b) AUTHORIZATION OF APPROPRIATIONS.—There

15 are authorized to be appropriated such sums as may be

16 necessary for each of fiscal years 2007 through 2011 to

17 carry out this section.

18 SEC. 220. REDUCING ILLEGAL IMMIGRATION AND ALIEN

19 SMUGGLING ON TRIBAL LANDS.

20 (a) GRANTS AUTHORIZED.—The Secretary may

21 award grants to Indian tribes with lands adjacent to an

22 international border of the United States that have been

23 adversely affected by illegal immigration.

24 (b) USE OF FUNDS.—Grants awarded under sub25 section (a) may be used for—
†

189

S 2611 ES

1 (1) law enforcement activities;

2 (2) health care services;

3 (3) environmental restoration; and

4 (4) the preservation of cultural resources.

5 (c) REPORT.—Not later than 180 days after the date

6 of the enactment of this Act, the Secretary shall submit

7 a report to the Committee on the Judiciary of the Senate

8 and the Committee on the Judiciary of the House of Rep9 resentatives that—

10 (1) describes the level of access of Border Pa11 trol agents on tribal lands;

12 (2) describes the extent to which enforcement of

13 immigration laws may be improved by enhanced ac14 cess to tribal lands;

15 (3) contains a strategy for improving such ac16 cess through cooperation with tribal authorities; and

17 (4) identifies grants provided by the Depart18 ment for Indian tribes, either directly or through

19 State or local grants, relating to border security ex20 penses.

21 (d) AUTHORIZATION OF APPROPRIATIONS.—There

22 are authorized to be appropriated such sums as may be

23 necessary for each of the fiscal years 2007 through 2011

24 to carry out this section.
†

190

S 2611 ES

1 SEC. 221. ALTERNATIVES TO DETENTION.

2 The Secretary shall conduct a study of—

3 (1) the effectiveness of alternatives to detention,

4 including electronic monitoring devices and intensive

5 supervision programs, in ensuring alien appearance

6 at court and compliance with removal orders;

7 (2) the effectiveness of the Intensive Super8 vision Appearance Program and the costs and bene9 fits of expanding that program to all States; and

10 (3) other alternatives to detention, including—

11 (A) release on an order of recognizance;

12 (B) appearance bonds; and

13 (C) electronic monitoring devices.

14 SEC. 222. CONFORMING AMENDMENT.

15 Section 101(a)(43)(P) (8 U.S.C. 1101(a)(43)(P)) is

16 amended—

17 (1) by striking ‘‘(i) which either is falsely mak18 ing, forging, counterfeiting, mutilating, or altering a

19 passport or instrument in violation of section 1543

20 of title 18, United States Code, or is described in

21 section 1546(a) of such title (relating to document

22 fraud) and (ii)’’ and inserting ‘‘which is described in

23 chapter 75 of title 18, United States Code, and’’;

24 and
†

191

S 2611 ES

1 (2) by inserting the following: ‘‘that is not de2 scribed in section 1548 of such title (relating to in3 creased penalties), and’’ after ‘‘first offense’’.

4 SEC. 223. REPORTING REQUIREMENTS.

5 (a) CLARIFYING ADDRESS REPORTING REQUIRE6 MENTS.—Section 265 (8 U.S.C. 1305) is amended—

7 (1) in subsection (a)—

8 (A) by striking ‘‘notify the Attorney Gen9 eral in writing’’ and inserting ‘‘submit written

10 or electronic notification to the Secretary of

11 Homeland Security, in a manner approved by

12 the Secretary,’’;

13 (B) by striking ‘‘the Attorney General may

14 require by regulation’’ and inserting ‘‘the Sec15 retary may require’’; and

16 (C) by adding at the end the following: ‘‘If

17 the alien is involved in proceedings before an

18 immigration judge or in an administrative ap19 peal of such proceedings, the alien shall submit

20 to the Attorney General the alien’s current ad21 dress and a telephone number, if any, at which

22 the alien may be contacted.’’;

23 (2) in subsection (b), by striking ‘‘Attorney

24 General’’ each place such term appears and inserting

25 ‘‘Secretary of Homeland Security’’;
†

192

S 2611 ES

1 (3) in subsection (c), by striking ‘‘given to such

2 parent’’ and inserting ‘‘given by such parent’’; and

3 (4) by adding at the end the following:

4 ‘‘(d) ADDRESS TO BE PROVIDED.—

5 ‘‘(1) IN GENERAL.—Except as otherwise pro6 vided by the Secretary under paragraph (2), an ad7 dress provided by an alien under this section shall

8 be the alien’s current residential mailing address,

9 and shall not be a post office box or other non-resi10 dential mailing address or the address of an attor11 ney, representative, labor organization, or employer.

12 ‘‘(2) SPECIFIC REQUIREMENTS.—The Secretary

13 may provide specific requirements with respect to—

14 ‘‘(A) designated classes of aliens and spe15 cial circumstances, including aliens who are em16 ployed at a remote location; and

17 ‘‘(B) the reporting of address information

18 by aliens who are incarcerated in a Federal,

19 State, or local correctional facility.

20 ‘‘(3) DETENTION.—An alien who is being de21 tained by the Secretary under this Act is not re22 quired to report the alien’s current address under

23 this section during the time the alien remains in de24 tention, but shall be required to notify the Secretary
†

193

S 2611 ES

1 of the alien’s address under this section at the time

2 of the alien’s release from detention.

3 ‘‘(e) USE OF MOST RECENT ADDRESS PROVIDED BY

4 THE ALIEN.—

5 ‘‘(1) IN GENERAL.—Notwithstanding any other

6 provision of law, the Secretary may provide for the

7 appropriate coordination and cross referencing of

8 address information provided by an alien under this

9 section with other information relating to the alien’s

10 address under other Federal programs, including—

11 ‘‘(A) any information pertaining to the

12 alien, which is submitted in any application, pe13 tition, or motion filed under this Act with the

14 Secretary of Homeland Security, the Secretary

15 of State, or the Secretary of Labor;

16 ‘‘(B) any information available to the At17 torney General with respect to an alien in a

18 proceeding before an immigration judge or an

19 administrative appeal or judicial review of such

20 proceeding;

21 ‘‘(C) any information collected with respect

22 to nonimmigrant foreign students or exchange

23 program participants under section 641 of the

24 Illegal Immigration Reform and Immigrant Re25 sponsibility Act of 1996 (8 U.S.C. 1372); and
†

194

S 2611 ES

1 ‘‘(D) any information collected from State

2 or local correctional agencies pursuant to the

3 State Criminal Alien Assistance Program.

4 ‘‘(2) RELIANCE.—The Secretary may rely on

5 the most recent address provided by the alien under

6 this section or section 264 to send to the alien any

7 notice, form, document, or other matter pertaining

8 to Federal immigration laws, including service of a

9 notice to appear. The Attorney General and the Sec10 retary may rely on the most recent address provided

11 by the alien under section 239(a)(1)(F) to contact

12 the alien about pending removal proceedings.

13 ‘‘(3) OBLIGATION.—The alien’s provision of an

14 address for any other purpose under the Federal im15 migration laws does not excuse the alien’s obligation

16 to submit timely notice of the alien’s address to the

17 Secretary under this section (or to the Attorney

18 General under section 239(a)(1)(F) with respect to

19 an alien in a proceeding before an immigration judge

20 or an administrative appeal of such proceeding).’’.

21 (b) CONFORMING CHANGES WITH RESPECT TO REG22 ISTRATION REQUIREMENTS.—Chapter 7 of title II (8

23 U.S.C. 1301 et seq.) is amended—
†

195

S 2611 ES

1 (1) in section 262(c), by striking ‘‘Attorney

2 General’’ and inserting ‘‘Secretary of Homeland Se3 curity’’;

4 (2) in section 263(a), by striking ‘‘Attorney

5 General’’ and inserting ‘‘Secretary of Homeland Se6 curity’’; and

7 (3) in section 264—

8 (A) in subsections (a), (b), (c), and (d), by

9 striking ‘‘Attorney General’’ each place it ap10 pears and inserting ‘‘Secretary of Homeland

11 Security’’; and

12 (B) in subsection (f)—

13 (i) by striking ‘‘Attorney General is

14 authorized’’ and inserting ‘‘Secretary of

15 Homeland Security and Attorney General

16 are authorized’’; and

17 (ii) by striking ‘‘Attorney General or

18 the Service’’ and inserting ‘‘Secretary or

19 the Attorney General’’.

20 (c) PENALTIES.—Section 266 (8 U.S.C. 1306) is

21 amended—

22 (1) by amending subsection (b) to read as fol23 lows:

24 ‘‘(b) FAILURE TO PROVIDE NOTICE OF ALIEN’S

25 CURRENT ADDRESS.—
†

196

S 2611 ES

1 ‘‘(1) CRIMINAL PENALTIES.—Any alien or any

2 parent or legal guardian in the United States of any

3 minor alien who fails to notify the Secretary of

4 Homeland Security of the alien’s current address in

5 accordance with section 265 shall be fined under

6 title 18, United States Code, imprisoned for not

7 more than 6 months, or both.

8 ‘‘(2) EFFECT ON IMMIGRATION STATUS.—Any

9 alien who violates section 265 (regardless of whether

10 the alien is punished under paragraph (1)) and does

11 not establish to the satisfaction of the Secretary that

12 such failure was reasonably excusable or was not

13 willful shall be taken into custody in connection with

14 removal of the alien. If the alien has not been in15 spected or admitted, or if the alien has failed on

16 more than 1 occasion to submit notice of the alien’s

17 current address as required under section 265, the

18 alien may be presumed to be a flight risk. The Sec19 retary or the Attorney General, in considering any

20 form of relief from removal which may be granted

21 in the discretion of the Secretary or the Attorney

22 General, may take into consideration the alien’s fail23 ure to comply with section 265 as a separate nega24 tive factor. If the alien failed to comply with the re25 quirements of section 265 after becoming subject to
†

197

S 2611 ES

1 a final order of removal, deportation, or exclusion,

2 the alien’s failure shall be considered as a strongly

3 negative factor with respect to any discretionary mo4 tion for reopening or reconsideration filed by the

5 alien.’’;

6 (2) in subsection (c), by inserting ‘‘or a notice

7 of current address’’ before ‘‘containing statements’’;

8 and

9 (3) in subsections (c) and (d), by striking ‘‘At10 torney General’’ each place it appears and inserting

11 ‘‘Secretary’’.

12 (d) EFFECTIVE DATES.—

13 (1) IN GENERAL.—Except as provided in para14 graph (2), the amendments made by this section

15 shall apply to proceedings initiated on or after the

16 date of the enactment of this Act.

17 (2) CONFORMING AND TECHNICAL AMEND18 MENTS.—The amendments made by paragraphs

19 (1)(A), (1)(B), (2) and (3) of subsection (a) are ef20 fective as if enacted on March 1, 2003.

21 SEC. 224. STATE AND LOCAL ENFORCEMENT OF FEDERAL

22 IMMIGRATION LAWS.

23 (a) IN GENERAL.—Section 287(g) (8 U.S.C.

24 1357(g)) is amended—
†

198

S 2611 ES

1 (1) in paragraph (2), by adding at the end the

2 following: ‘‘If such training is provided by a State or

3 political subdivision of a State to an officer or em4 ployee of such State or political subdivision of a

5 State, the cost of such training (including applicable

6 overtime costs) shall be reimbursed by the Secretary

7 of Homeland Security.’’; and

8 (2) in paragraph (4), by adding at the end the

9 following: ‘‘The cost of any equipment required to be

10 purchased under such written agreement and nec11 essary to perform the functions under this sub12 section shall be reimbursed by the Secretary of

13 Homeland Security.’’.

14 (b) AUTHORIZATION OF APPROPRIATIONS.—There

15 are authorized to be appropriated to the Secretary such

16 sums as may be necessary to carry out this section and

17 the amendments made by this section.

18 SEC. 225. REMOVAL OF DRUNK DRIVERS.

19 (a) IN GENERAL.—Section 101(a)(43)(F) (8 U.S.C.

20 1101(a)(43)(F)) is amended by inserting ‘‘, including a

21 third drunk driving conviction, regardless of the States in

22 which the convictions occurred or whether the offenses are

23 classified as misdemeanors or felonies under State law,’’

24 after ‘‘offense)’’.
†

199

S 2611 ES

1 (b) EFFECTIVE DATE.—The amendment made by

2 subsection (a) shall—

3 (1) take effect on the date of the enactment of

4 this Act; and

5 (2) apply to convictions entered on or after

6 such date.

7 SEC. 226. MEDICAL SERVICES IN UNDERSERVED AREAS.

8 Section 220(c) of the Immigration and Nationality

9 Technical Corrections Act of 1994 (8 U.S.C. 1182 note)

10 is amended by striking ‘‘and before June 1, 2006.’’.

11 SEC. 227. EXPEDITED REMOVAL.

12 (a) IN GENERAL.—Section 238 (8 U.S.C. 1228) is

13 amended—

14 (1) by striking the section heading and insert15 ing ‘‘EXPEDITED REMOVAL OF CRIMINAL ALIENS’’;

16 (2) in subsection (a), by striking the subsection

17 heading and inserting: ‘‘EXPEDITED REMOVAL

18 FROM CORRECTIONAL FACILITIES.—’’;

19 (3) in subsection (b), by striking the subsection

20 heading and inserting: ‘‘REMOVAL OF CRIMINAL

21 ALIENS.—’’;

22 (4) in subsection (b), by striking paragraphs

23 (1) and (2) and inserting the following:

24 ‘‘(1) IN GENERAL.—The Secretary of Homeland

25 Security may, in the case of an alien described in
†

200

S 2611 ES

1 paragraph (2), determine the deportability of such

2 alien and issue an order of removal pursuant to the

3 procedures set forth in this subsection or section

4 240.

5 ‘‘(2) ALIENS DESCRIBED.—An alien is de6 scribed in this paragraph if the alien—

7 ‘‘(A) has not been lawfully admitted to the

8 United States for permanent residence; and

9 ‘‘(B) was convicted of any criminal offense

10 described in subparagraph (A)(iii), (C), or (D)

11 of section 237(a)(2).’’;

12 (5) in the subsection (c) that relates to pre13 sumption of deportability, by striking ‘‘convicted of

14 an aggravated felony’’ and inserting ‘‘described in

15 subsection (b)(2)’’;

16 (6) by redesignating the subsection (c) that re17 lates to judicial removal as subsection (d); and

18 (7) in subsection (d)(5) (as so redesignated), by

19 striking ‘‘, who is deportable under this Act,’’.

20 (b) APPLICATION TO CERTAIN ALIENS.—

21 (1) IN GENERAL.—Section 235(b)(1)(A)(iii) (8

22 U.S.C. 1225(b)(1)(A)(iii)) is amended—

23 (A) in subclause (I), by striking ‘‘Attorney

24 General’’ and inserting ‘‘Secretary of Homeland

25 Security’’ each place it appears; and
†

201

S 2611 ES

1 (B) by adding at the end the following new

2 subclause:

3 ‘‘(III) EXCEPTION.—Notwith4 standing subclauses (I) and (II), the

5 Secretary of Homeland Security shall

6 apply clauses (i) and (ii) of this sub7 paragraph to any alien (other than an

8 alien described in subparagraph (F))

9 who is not a national of a country

10 contiguous to the United States, who

11 has not been admitted or paroled into

12 the United States, and who is appre13 hended within 100 miles of an inter14 national land border of the United

15 States and within 14 days of entry.’’.

16 (2) EXCEPTIONS.—Section 235(b)(1)(F) of the

17 Immigration and Nationality Act (8 U.S.C.

18 1225(b)(1)(F)) is amended—

19 (A) by striking ‘‘and who arrives by air20 craft at a port of entry’’ and inserting ‘‘and—

21 ’’; and

22 (B) by adding at the end the following:

23 ‘‘(i) who arrives by aircraft at a port

24 of entry; or
†

202

S 2611 ES

1 ‘‘(ii) who is present in the United

2 States and arrived in any manner at or be3 tween a port of entry.’’.

4 (c) EFFECTIVE DATE.—The amendments made by

5 this section shall take effect on the date of the enactment

6 of this Act and shall apply to all aliens apprehended or

7 convicted on or after such date.

8 SEC. 228. PROTECTING IMMIGRANTS FROM CONVICTED

9 SEX OFFENDERS.

10 (a) IMMIGRANTS.—Section 204(a)(1) (8 U.S.C.

11 1154(a)(1)), is amended—

12 (1) in subparagraph (A)(i), by striking ‘‘Any’’

13 and inserting ‘‘Except as provided in clause (vii),

14 any’’;

15 (2) in subparagraph (A), by inserting after

16 clause (vi) the following:

17 ‘‘(vii) Clause (i) shall not apply to a citizen of the

18 United States who has been convicted of an offense de19 scribed in subparagraph (A), (I), or (K) of section

20 101(a)(43), unless the Secretary of Homeland Security,

21 in the Secretary’s sole and unreviewable discretion, deter22 mines that the citizen poses no risk to the alien with re23 spect to whom a petition described in clause (i) is filed.’’;

24 and

25 (3) in subparagraph (B)(i)—
†

203

S 2611 ES

1 (A) by striking ‘‘Any alien’’ and inserting

2 the following: ‘‘(I) Except as provided in sub3 clause (II), any alien’’; and

4 (B) by adding at the end the following:

5 ‘‘(II) Subclause (I) shall not apply in the case of an

6 alien admitted for permanent residence who has been con7 victed of an offense described in subparagraph (A), (I),

8 or (K) of section 101(a)(43), unless the Secretary of

9 Homeland Security, in the Secretary’s sole and

10 unreviewable discretion, determines that the alien lawfully

11 admitted for permanent residence poses no risk to the

12 alien with respect to whom a petition described in sub13 clause (I) is filed.’’.

14 (b) NONIMMIGRANTS.—Section 101(a)(15)(K) (8

15 U.S.C. 1101(a)(15)(K)), is amended by inserting ‘‘(other

16 than a citizen described in section 204(a)(1)(A)(vii))’’

17 after ‘‘citizen of the United States’’ each place that phrase

18 appears.

19 SEC. 229. LAW ENFORCEMENT AUTHORITY OF STATES AND

20 POLITICAL SUBDIVISIONS AND TRANSFER TO

21 FEDERAL CUSTODY.

22 (a) IN GENERAL.—Title II (8 U.S.C. 1151 et. seq.)

23 is amended by adding after section 240C the following new

24 section:
†

204

S 2611 ES

1 ‘‘SEC. 240D. LAW ENFORCEMENT AUTHORITY OF STATES

2 AND POLITICAL SUBDIVISIONS AND TRANS3 FER OF ALIENS TO FEDERAL CUSTODY.

4 ‘‘(a) AUTHORITY.—Notwithstanding any other provi5 sion of law, law enforcement personnel of a State, or a

6 political subdivision of a State, have the inherent authority

7 of a sovereign entity to investigate, apprehend, arrest, de8 tain, or transfer to Federal custody (including the trans9 portation across State lines to detention centers) an alien

10 for the purpose of assisting in the enforcement of the

11 criminal provisions of the immigration laws of the United

12 States in the normal course of carrying out the law en13 forcement duties of such personnel. This State authority

14 has never been displaced or preempted by a Federal law.

15 ‘‘(b) CONSTRUCTION.—Nothing in this section shall

16 be construed to require law enforcement personnel of a

17 State or a political subdivision to assist in the enforcement

18 of the immigration laws of the United States.

19 ‘‘(c) TRANSFER.—If the head of a law enforcement

20 entity of a State (or, if appropriate, a political subdivision

21 of the State) exercising authority with respect to the ap22 prehension or arrest of an alien submits a request to the

23 Secretary of Homeland Security that the alien be taken

24 into Federal custody, the Secretary of Homeland

25 Security—

26 ‘‘(1) shall—
†

205

S 2611 ES

1 ‘‘(A) deem the request to include the in2 quiry to verify immigration status described in

3 section 642(c) of the Illegal Immigration Re4 form and Immigrant Responsibility Act of 1996

5 (8 U.S.C. 1373(c)), and expeditiously inform

6 the requesting entity whether such individual is

7 an alien lawfully admitted to the United States

8 or is otherwise lawfully present in the United

9 States; and

10 ‘‘(B) if the individual is an alien who is not

11 lawfully admitted to the United States or other12 wise is not lawfully present in the United

13 States—

14 ‘‘(i) take the illegal alien into the cus15 tody of the Federal Government not later

16 than 72 hours after—

17 ‘‘(I) the conclusion of the State

18 charging process or dismissal process;

19 or

20 ‘‘(II) the illegal alien is appre21 hended, if no State charging or dis22 missal process is required; or

23 ‘‘(ii) request that the relevant State or

24 local law enforcement agency temporarily
†

206

S 2611 ES

1 detain or transport the alien to a location

2 for transfer to Federal custody; and

3 ‘‘(2) shall designate at least 1 Federal, State,

4 or local prison or jail or a private contracted prison

5 or detention facility within each State as the central

6 facility for that State to transfer custody of aliens

7 to the Department of Homeland Security.

8 ‘‘(d) REIMBURSEMENT.—

9 ‘‘(1) IN GENERAL.—The Secretary of Homeland

10 Security shall reimburse a State, or a political sub11 division of a State, for expenses, as verified by the

12 Secretary, incurred by the State or political subdivi13 sion in the detention and transportation of an alien

14 as described in subparagraphs (A) and (B) of sub15 section (c)(1).

16 ‘‘(2) COST COMPUTATION.—Compensation pro17 vided for costs incurred under subparagraphs (A)

18 and (B) of subsection (c)(1) shall be—

19 ‘‘(A) the product of—

20 ‘‘(i) the average daily cost of incarcer21 ation of a prisoner in the relevant State, as

22 determined by the chief executive officer of

23 a State (or, as appropriate, a political sub24 division of the State); multiplied by
†

207

S 2611 ES

1 ‘‘(ii) the number of days that the alien

2 was in the custody of the State or political

3 subdivision; plus

4 ‘‘(B) the cost of transporting the alien

5 from the point of apprehension or arrest to the

6 location of detention, and if the location of de7 tention and of custody transfer are different, to

8 the custody transfer point; plus

9 ‘‘(C) the cost of uncompensated emergency

10 medical care provided to a detained alien during

11 the period between the time of transmittal of

12 the request described in subsection (c) and the

13 time of transfer into Federal custody.

14 ‘‘(e) REQUIREMENT FOR APPROPRIATE SECURITY.—

15 The Secretary of Homeland Security shall ensure that—

16 ‘‘(1) aliens incarcerated in a Federal facility

17 pursuant to this section are held in facilities which

18 provide an appropriate level of security; and

19 ‘‘(2) if practicable, aliens detained solely for

20 civil violations of Federal immigration law are sepa21 rated within a facility or facilities.

22 ‘‘(f) REQUIREMENT FOR SCHEDULE.—In carrying

23 out this section, the Secretary of Homeland Security shall

24 establish a regular circuit and schedule for the prompt

25 transportation of apprehended aliens from the custody of
†

208

S 2611 ES

1 those States, and political subdivisions of States, which

2 routinely submit requests described in subsection (c), into

3 Federal custody.

4 ‘‘(g) AUTHORITY FOR CONTRACTS.—

5 ‘‘(1) IN GENERAL.—The Secretary of Homeland

6 Security may enter into contracts or cooperative

7 agreements with appropriate State and local law en8 forcement and detention agencies to implement this

9 section.

10 ‘‘(2) DETERMINATION BY SECRETARY.—Prior

11 to entering into a contract or cooperative agreement

12 with a State or political subdivision of a State under

13 paragraph (1), the Secretary shall determine wheth14 er the State, or if appropriate, the political subdivi15 sion in which the agencies are located, has in place

16 any formal or informal policy that violates section

17 642 of the Illegal Immigration Reform and Immi18 grant Responsibility Act of 1996 (8 U.S.C. 1373).

19 The Secretary shall not allocate any of the funds

20 made available under this section to any State or po21 litical subdivision that has in place a policy that vio22 lates such section.’’.

23 (b) AUTHORIZATION OF APPROPRIATIONS FOR THE

24 DETENTION AND TRANSPORTATION TO FEDERAL CUS25 TODY OF ALIENS NOT LAWFULLY PRESENT.—There are
†

209

S 2611 ES

1 authorized to be appropriated $850,000,000 for fiscal year

2 2007 and each subsequent fiscal year for the detention

3 and removal of aliens not lawfully present in the United

4 States under the Immigration and Nationality Act (8

5 U.S.C. 1101 et. seq.).

6 SEC. 230. LAUNDERING OF MONETARY INSTRUMENTS.

7 Section 1956(c)(7)(D) of title 18, United States

8 Code, is amended—

9 (1) by inserting ‘‘section 1590 (relating to traf10 ficking with respect to peonage, slavery, involuntary

11 servitude, or forced labor),’’ after ‘‘section 1363 (re12 lating to destruction of property within the special

13 maritime and territorial jurisdiction),’’; and

14 (2) by inserting ‘‘section 274(a) of the Immi15 gration and Nationality Act (8 U.S.C.1324(a)) (re16 lating to bringing in and harboring certain aliens),’’

17 after ‘‘section 590 of the Tariff Act of 1930 (19

18 U.S.C. 1590) (relating to aviation smuggling),’’.

19 SEC. 231. LISTING OF IMMIGRATION VIOLATORS IN THE NA20 TIONAL CRIME INFORMATION CENTER DATA21 BASE.

22 (a) PROVISION OF INFORMATION TO THE NATIONAL

23 CRIME INFORMATION CENTER.—

24 (1) IN GENERAL.—Except as provided in para25 graph (3), not later than 180 days after the date of
†

210

S 2611 ES

1 the enactment of this Act, the Secretary shall pro2 vide to the head of the National Crime Information

3 Center of the Department of Justice the information

4 that the Secretary has or maintains related to any

5 alien—

6 (A) against whom a final order of removal

7 has been issued;

8 (B) who enters into a voluntary departure

9 agreement, or is granted voluntary departure by

10 an immigration judge, whose period for depar11 ture has expired under subsection (a)(3) of sec12 tion 240B of the Immigration and Nationality

13 Act (8 U.S.C. 1229c) (as amended by section

14 211(a)(1)(C)), subsection (b)(2) of such section

15 240B, or who has violated a condition of a vol16 untary departure agreement under such section

17 240B;

18 (C) whom a Federal immigration officer

19 has confirmed to be unlawfully present in the

20 United States; and

21 (D) whose visa has been revoked.

22 (2) REMOVAL OF INFORMATION.—The head of

23 the National Crime Information Center should

24 promptly remove any information provided by the

25 Secretary under paragraph (1) related to an alien
†

211

S 2611 ES

1 who is granted lawful authority to enter or remain

2 legally in the United States.

3 (3) PROCEDURE FOR REMOVAL OF ERRONEOUS

4 INFORMATION.—The Secretary, in consultation with

5 the head of the National Crime Information Center

6 of the Department of Justice, shall develop and im7 plement a procedure by which an alien may petition

8 the Secretary or head of the National Crime Infor9 mation Center, as appropriate, to remove any erro10 neous information provided by the Secretary under

11 paragraph (1) related to such alien. Under such pro12 cedures, failure by the alien to receive notice of a

13 violation of the immigration laws shall not constitute

14 cause for removing information provided by the Sec15 retary under paragraph (1) related to such alien, un16 less such information is erroneous. Notwithstanding

17 the 180-day time period set forth in paragraph (1),

18 the Secretary shall not provide the information re19 quired under paragraph (1) until the procedures re20 quired by this paragraph are developed and imple21 mented.

22 (b) INCLUSION OF INFORMATION IN THE NATIONAL

23 CRIME INFORMATION CENTER DATABASE.—Section

24 534(a) of title 28, United States Code, is amended—
†

212

S 2611 ES

1 (1) in paragraph (3), by striking ‘‘and’’ at the

2 end;

3 (2) by redesignating paragraph (4) as para4 graph (5); and

5 (3) by inserting after paragraph (3) the fol6 lowing new paragraph:

7 ‘‘(4) acquire, collect, classify, and preserve

8 records of violations of the immigration laws of the

9 United States; and’’.

10 SEC. 232. COOPERATIVE ENFORCEMENT PROGRAMS.

11 Not later than 2 years after the date of the enact12 ment of this Act, the Secretary shall negotiate and exe13 cute, where practicable, a cooperative enforcement agree14 ment described in section 287(g) of the Immigration and

15 Nationality Act (8 U.S.C. 1357(g)) with at least 1 law

16 enforcement agency in each State, to train law enforce17 ment officers in the detection and apprehension of individ18 uals engaged in transporting, harboring, sheltering, or en19 couraging aliens in violation of section 274 of such Act

20 (8 U.S.C. 1324).
†

213

S 2611 ES

1 SEC. 233. INCREASE OF FEDERAL DETENTION SPACE AND

2 THE UTILIZATION OF FACILITIES IDENTIFIED

3 FOR CLOSURES AS A RESULT OF THE DE4 FENSE BASE CLOSURE REALIGNMENT ACT

5 OF 1990.

6 (a) CONSTRUCTION OR ACQUISITION OF DETENTION

7 FACILITIES.—

8 (1) IN GENERAL.—The Secretary shall con9 struct or acquire, in addition to existing facilities for

10 the detention of aliens, at least 20 detention facili11 ties in the United States that have the capacity to

12 detain a combined total of not less than 20,000 indi13 viduals at any time for aliens detained pending re14 moval or a decision on removal of such aliens from

15 the United States subject to available appropria16 tions.

17 (b) CONSTRUCTION OF OR ACQUISITION OF DETEN18 TION FACILITIES.—

19 (1) REQUIREMENT TO CONSTRUCT OR AC20 QUIRE.—The Secretary shall construct or acquire

21 additional detention facilities in the United States to

22 accommodate the detention beds required by section

23 5204(a) of the Intelligence Reform and Terrorism

24 Protection Act of 2004, as amended by subsection

25 (a), subject to available appropriations.
†

214

S 2611 ES

1 (2) USE OF ALTERNATE DETENTION FACILI2 TIES.—Subject to the availability of appropriations,

3 the Secretary shall fully utilize all possible options to

4 cost effectively increase available detention capac5 ities, and shall utilize detention facilities that are

6 owned and operated by the Federal Government if

7 the use of such facilities is cost effective.

8 (3) USE OF INSTALLATIONS UNDER BASE CLO9 SURE LAWS.—In acquiring additional detention fa10 cilities under this subsection, the Secretary shall

11 consider the transfer of appropriate portions of mili12 tary installations approved for closure or realign13 ment under the Defense Base Closure and Realign14 ment Act of 1990 (part A of title XXIX of Public

15 Law 101–510; 10 U.S.C. 2687 note) for use in ac16 cordance with subsection (a).

17 (4) DETERMINATION OF LOCATION.—The loca18 tion of any detention facility constructed or acquired

19 in accordance with this subsection shall be deter20 mined, with the concurrence of the Secretary, by the

21 senior officer responsible for Detention and Removal

22 Operations in the Department. The detention facili23 ties shall be located so as to enable the officers and

24 employees of the Department to increase to the max-
†

215

S 2611 ES

1 imum extent practicable the annual rate and level of

2 removals of illegal aliens from the United States.

3 (c) ANNUAL REPORT TO CONGRESS.—Not later than

4 1 year after the date of the enactment of this Act, and

5 annually thereafter, in consultation with the heads of

6 other appropriate Federal agencies, the Secretary shall

7 submit to Congress an assessment of the additional deten8 tion facilities and bed space needed to detain unlawful

9 aliens apprehended at the United States ports of entry or

10 along the international land borders of the United States.

11 (d) TECHNICAL AND CONFORMING AMENDMENT.—

12 Section 241(g)(1) (8 U.S.C. 1231(g)(1)) is amended by

13 striking ‘‘may expend’’ and inserting ‘‘shall expend’’.

14 (e) AUTHORIZATION OF APPROPRIATIONS.—There

15 are authorized to be appropriated such sums as may be

16 necessary to carry out this section.

17 SEC. 234. DETERMINATION OF IMMIGRATION STATUS OF

18 INDIVIDUALS CHARGED WITH FEDERAL OF19 FENSES.

20 (a) RESPONSIBILITY OF UNITED STATES ATTOR21 NEYS.—Beginning not later than 2 years after the date

22 of the enactment of this Act, the office of the United

23 States Attorney that is prosecuting a criminal case in a

24 Federal court—
†

216

S 2611 ES

1 (1) shall determine, not later than 30 days

2 after filing the initial pleadings in the case, whether

3 each defendant in the case is lawfully present in the

4 United States (subject to subsequent legal pro5 ceedings to determine otherwise);

6 (2)(A) if the defendant is determined to be an

7 alien lawfully present in the United States, shall no8 tify the court in writing of the determination and

9 the current status of the alien under the Immigra10 tion and Nationality Act (8 U.S.C. 1101 et seq.);

11 and

12 (B) if the defendant is determined not to be

13 lawfully present in the United States, shall notify

14 the court in writing of the determination, the de15 fendant’s alien status, and, to the extent possible,

16 the country of origin or legal residence of the de17 fendant; and

18 (3) ensure that the information described in

19 paragraph (2) is included in the case file and the

20 criminal records system of the office of the United

21 States attorney.

22 (b) GUIDELINES.—A determination made under sub23 section (a)(1) shall be made in accordance with guidelines

24 of the Executive Office for Immigration Review of the De25 partment of Justice.
†

217

S 2611 ES

1 (c) RESPONSIBILITIES OF FEDERAL COURTS.—

2 (1) MODIFICATIONS OF RECORDS AND CASE

3 MANAGEMENTS SYSTEMS.—Not later than 2 years

4 after the date of the enactment of this Act, all Fed5 eral courts that hear criminal cases, or appeals of

6 criminal cases, shall modify their criminal records

7 and case management systems, in accordance with

8 guidelines which the Director of the Administrative

9 Office of the United States Courts shall establish, so

10 as to enable accurate reporting of information de11 scribed in subsection (a)(2).

12 (2) DATA ENTRIES.—Beginning not later than

13 2 years after the date of the enactment of this Act,

14 each Federal court described in paragraph (1) shall

15 enter into its electronic records the information con16 tained in each notification to the court under sub17 section (a)(2).

18 (d) CONSTRUCTION.—Nothing in this section may be

19 construed to provide a basis for admitting evidence to a

20 jury or releasing information to the public regarding an

21 alien’s immigration status.

22 (e) ANNUAL REPORT TO CONGRESS.—The Director

23 of the Administrative Office of the United States Courts

24 shall include, in the annual report filed with Congress

25 under section 604 of title 28, United States Code—
†

218

S 2611 ES

1 (1) statistical information on criminal trials of

2 aliens in the courts and criminal convictions of

3 aliens in the lower courts and upheld on appeal, in4 cluding the type of crime in each case and including

5 information on the legal status of the aliens; and

6 (2) recommendations on whether additional

7 court resources are needed to accommodate the vol8 ume of criminal cases brought against aliens in the

9 Federal courts.

10 (f) AUTHORIZATION OF APPROPRIATIONS.—There

11 are authorized to be appropriated for each of fiscal years

12 2007 through 2011, such sums as may be necessary to

13 carry out this Act. Funds appropriated pursuant to this

14 subsection in any fiscal year shall remain available until

15 expended.

16 SEC. 235. EXPANSION OF THE JUSTICE PRISONER AND

17 ALIEN TRANSFER SYSTEM.

18 Not later than 60 days after the date of enactment

19 of this Act, the Attorney General shall issue a directive

20 to expand the Justice Prisoner and Alien Transfer System

21 (JPATS) so that such System provides additional services

22 with respect to aliens who are illegally present in the

23 United States. Such expansion should include—

24 (1) increasing the daily operations of such Sys25 tem with buses and air hubs in 3 geographic regions;
†

219

S 2611 ES

1 (2) allocating a set number of seats for such

2 aliens for each metropolitan area;

3 (3) allowing metropolitan areas to trade or give

4 some of seats allocated to them under the System

5 for such aliens to other areas in their region based

6 on the transportation needs of each area; and

7 (4) requiring an annual report that analyzes of

8 the number of seats that each metropolitan area is

9 allocated under this System for such aliens and

10 modifies such allocation if necessary.

11 TITLE III—UNLAWFUL

12 EMPLOYMENT OF ALIENS

13 SEC. 301. UNLAWFUL EMPLOYMENT OF ALIENS.

14 (a) IN GENERAL.—Section 274A (8 U.S.C. 1324a)

15 is amended to read as follows:

16 ‘‘SEC. 274A. UNLAWFUL EMPLOYMENT OF ALIENS.

17 ‘‘(a) MAKING EMPLOYMENT OF UNAUTHORIZED

18 ALIENS UNLAWFUL.—

19 ‘‘(1) IN GENERAL.—It is unlawful for an

20 employer—

21 ‘‘(A) to hire, or to recruit or refer for a

22 fee, an alien for employment in the United

23 States knowing, or with reckless disregard, that

24 the alien is an unauthorized alien with respect

25 to such employment; or
†

220

S 2611 ES

1 ‘‘(B) to hire, or to recruit or refer for a

2 fee, for employment in the United States an in3 dividual unless such employer meets the re4 quirements of subsections (c) and (d).

5 ‘‘(2) CONTINUING EMPLOYMENT.—It is unlaw6 ful for an employer, after lawfully hiring an alien for

7 employment, to continue to employ the alien in the

8 United States knowing that the alien is (or has be9 come) an unauthorized alien with respect to such

10 employment.

11 ‘‘(3) USE OF LABOR THROUGH CONTRACT.—

12 ‘‘(A) IN GENERAL.—An employer who uses

13 a contract, subcontract, or exchange to obtain

14 the labor of an alien in the United States know15 ing, or with reckless disregard—

16 ‘‘(i) that the alien is an unauthorized

17 alien with respect to performing such

18 labor, shall be considered to have hired the

19 alien in violation of paragraph (1)(A); or

20 ‘‘(ii) that the person hiring such alien

21 failed to comply with the requirements of

22 subsections (c) and (d) shall be considered

23 to have hired the alien in violation of para24 graph (1)(B).
†

221

S 2611 ES

1 ‘‘(B) INFORMATION SHARING.—The person

2 hiring the alien shall provide to the employer,

3 who obtains the labor of the alien, the employer

4 identification number assigned to such person

5 by the Commissioner of Internal Revenue. Fail6 ure to provide such number shall be considered

7 a recordkeeping violation under subsection

8 (e)(4)(B).

9 ‘‘(C) REPORTING REQUIREMENT.—The

10 employer shall submit to the Electronic

11 Verification System established under sub12 section (d), in a manner prescribed by the Sec13 retary, the employer identification number pro14 vided by the person hiring the alien. Failure to

15 submit such number shall be considered a rec16 ordkeeping violation under subsection (e)(4)(B).

17 ‘‘(D) ENFORCEMENT.—The Secretary shall

18 implement procedures to utilize the information

19 obtained under subparagraphs (B) and (C) to

20 identify employers who use a contract, sub21 contract, or exchange to obtain the labor of an

22 alien from another person, where such person

23 hiring such alien fails to comply with the re24 quirements of subsections (c) and (d).

25 ‘‘(4) DEFENSE.—
†

222

S 2611 ES

1 ‘‘(A) IN GENERAL.—Subject to subpara2 graph (B), an employer that establishes that

3 the employer has complied in good faith with

4 the requirements of subsections (c) and (d) has

5 established an affirmative defense that the em6 ployer has not violated paragraph (1)(A) with

7 respect to such hiring, recruiting, or referral.

8 ‘‘(B) EXCEPTION.—Until the date that an

9 employer is required to participate in the Elec10 tronic Employment Verification System under

11 subsection (d) or is participating in such Sys12 tem on a voluntary basis, the employer may es13 tablish an affirmative defense under subpara14 graph (A) by complying with the requirements

15 of subsection (c).

16 ‘‘(b) ORDER OF INTERNAL REVIEW AND CERTIFI17 CATION OF COMPLIANCE.—

18 ‘‘(1) AUTHORITY TO REQUIRE CERTIFI19 CATION.—If the Secretary has reasonable cause to

20 believe that an employer has failed to comply with

21 this section, the Secretary is authorized, at any time,

22 to require that the employer certify that the em23 ployer is in compliance with this section, or has in24 stituted a program to come into compliance.
†

223

S 2611 ES

1 ‘‘(2) CONTENT OF CERTIFICATION.—Not later

2 than 60 days after the date an employer receives a

3 request for a certification under paragraph (1) the

4 employer shall certify under penalty of perjury

5 that—

6 ‘‘(A) the employer is in compliance with

7 the requirements of subsections (c) and (d); or

8 ‘‘(B) that the employer has instituted a

9 program to come into compliance with such re10 quirements.

11 ‘‘(3) EXTENSION.—The 60-day period referred

12 to in paragraph (2), may be extended by the Sec13 retary for good cause, at the request of the em14 ployer.

15 ‘‘(4) PUBLICATION.—The Secretary is author16 ized to publish in the Federal Register standards or

17 methods for certification under paragraph (1) and

18 for specific recordkeeping practices with respect to

19 such certification, and procedures for the audit of

20 any records related to such certification.

21 ‘‘(c) DOCUMENT VERIFICATION REQUIREMENTS.—

22 An employer hiring, or recruiting or referring for a fee,

23 an individual for employment in the United States shall

24 verify that the individual is eligible for such employment

25 by meeting the following requirements:
†

224

S 2611 ES

1 ‘‘(1) ATTESTATION BY EMPLOYER.—

2 ‘‘(A) REQUIREMENTS.—

3 ‘‘(i) IN GENERAL.—The employer

4 shall attest, under penalty of perjury and

5 on a form prescribed by the Secretary, that

6 the employer has verified the identity and

7 eligibility for employment of the individual

8 by examining a document described in sub9 paragraph (B).

10 ‘‘(ii) SIGNATURE REQUIREMENTS.—

11 An attestation required by clause (i) may

12 be manifested by a handwritten or elec13 tronic signature.

14 ‘‘(iii) STANDARDS FOR EXAMINA15 TION.—The employer has complied with

16 the requirement of this paragraph with re17 spect to examination of documentation if a

18 reasonable person would conclude that the

19 document examined is genuine and relates

20 to the individual whose identity and eligi21 bility for employment in the United States

22 is being verified. If the individual provides

23 a document sufficient to meet the require24 ments of this paragraph, nothing in this

25 paragraph shall be construed as requiring
†

225

S 2611 ES

1 an employer to solicit any other document

2 or as requiring the individual to produce

3 any other document.

4 ‘‘(B) IDENTIFICATION DOCUMENTS.—A

5 document described in this subparagraph is—

6 ‘‘(i) in the case of an individual who

7 is a national of the United States—

8 ‘‘(I) a United States passport; or

9 ‘‘(II) a driver’s license or identity

10 card issued by a State, the Common11 wealth of the Northern Mariana Is12 lands, or an outlying possession of the

13 United States that satisfies the re14 quirements of division B of Public

15 Law 109–13 (119 Stat. 302);

16 ‘‘(ii) in the case of an alien lawfully

17 admitted for permanent residence in the

18 United States, a permanent resident card,

19 as specified by the Secretary;

20 ‘‘(iii) in the case of an alien who is

21 authorized under this Act or by the Sec22 retary to be employed in the United States,

23 an employment authorization card, as

24 specified by the Secretary that—
†

226

S 2611 ES

1 ‘‘(I) contains a photograph of the

2 individual or other identifying infor3 mation, including name, date of birth,

4 gender, and address; and

5 ‘‘(II) contains security features

6 to make the document resistant to

7 tampering, counterfeiting, and fraudu8 lent use;

9 ‘‘(iv) in the case of an individual who

10 is unable to obtain a document described

11 in clause (i), (ii), or (iii), a document des12 ignated by the Secretary that—

13 ‘‘(I) contains a photograph of the

14 individual or other identifying infor15 mation, including name, date of birth,

16 gender, and address; and

17 ‘‘(II) contains security features

18 to make the document resistant to

19 tampering, counterfeiting, and fraudu20 lent use; or

21 ‘‘(v) until the date that an employer is

22 required to participate in the Electronic

23 Employment Verification System under

24 subsection (d) or is participating in such

25 System on a voluntary basis, a document,
†

227

S 2611 ES

1 or a combination of documents, of such

2 type that, as of the date of the enactment

3 of the Comprehensive Immigration Reform

4 Act of 2006, the Secretary had established

5 by regulation were sufficient for purposes

6 of this section.

7 ‘‘(C) AUTHORITY TO PROHIBIT USE OF

8 CERTAIN DOCUMENTS.—

9 ‘‘(i) AUTHORITY.—If the Secretary

10 finds that a document or class of docu11 ments described in subparagraph (B) is

12 not reliable to establish identity or is being

13 used fraudulently to an unacceptable de14 gree, the Secretary shall prohibit, or im15 pose conditions, on the use of such docu16 ment or class of documents for purposes of

17 this subsection.

18 ‘‘(ii) REQUIREMENT FOR PUBLICA19 TION.—The Secretary shall publish notice

20 of any findings under clause (i) in the Fed21 eral Register.

22 ‘‘(2) ATTESTATION OF EMPLOYEE.—

23 ‘‘(A) REQUIREMENTS.—

24 ‘‘(i) IN GENERAL.—The individual

25 shall attest, under penalty of perjury on
†

228

S 2611 ES

1 the form described in paragraph (1)(A)(i),

2 that the individual is a national of the

3 United States, an alien lawfully admitted

4 for permanent residence, or an alien who is

5 authorized under this Act or by the Sec6 retary to be hired, or to be recruited or re7 ferred for a fee, in the United States.

8 ‘‘(ii) SIGNATURE FOR EXAMINA9 TION.—An attestation required by clause

10 (i) may be manifested by a handwritten or

11 electronic signature.

12 ‘‘(B) PENALTIES.—An individual who

13 falsely represents that the individual is eligible

14 for employment in the United States in an at15 testation required by subparagraph (A) shall,

16 for each such violation, be subject to a fine of

17 not more than $5,000, a term of imprisonment

18 not to exceed 3 years, or both.

19 ‘‘(3) RETENTION OF ATTESTATION.—The em20 ployer shall retain a paper, microfiche, microfilm, or

21 electronic version of the attestations made under

22 paragraph (1) and (2) and make such attestations

23 available for inspection by an officer of the Depart24 ment of Homeland Security, any other person des25 ignated by the Secretary, the Special Counsel for
†

229

S 2611 ES

1 Immigration-Related Unfair Employment Practices

2 of the Department of Justice, or the Secretary of

3 Labor during a period beginning on the date of the

4 hiring, or recruiting or referring for a fee, of the in5 dividual and ending—

6 ‘‘(A) in the case of the recruiting or refer7 ral for a fee (without hiring) of an individual,

8 5 years after the date of the recruiting or refer9 ral; or

10 ‘‘(B) in the case of the hiring of an indi11 vidual the later of—

12 ‘‘(i) 5 years after the date of such hir13 ing;

14 ‘‘(ii) 1 year after the date the individ15 ual’s employment is terminated; or

16 ‘‘(iii) in the case of an employer or

17 class of employers, a period that is less

18 than the applicable period described in

19 clause (i) or (ii) if the Secretary reduces

20 such period for such employer or class of

21 employers.

22 ‘‘(4) DOCUMENT RETENTION AND RECORD23 KEEPING REQUIREMENTS.—

24 ‘‘(A) RETENTION OF DOCUMENTS.—Not25 withstanding any other provision of law, an em-
†

230

S 2611 ES

1 ployer shall retain, for the applicable period de2 scribed in paragraph (3), the following docu3 ments:

4 ‘‘(i) IN GENERAL.—The employer

5 shall copy all documents presented by an

6 individual described in paragraph (1)(B)

7 and shall retain paper, microfiche, micro8 film, or electronic copies of such docu9 ments. Such copies shall be designated as

10 copied documents.

11 ‘‘(ii) OTHER DOCUMENTS.—The em12 ployer shall maintain records of any action

13 taken and copies of any correspondence

14 written or received with respect to the

15 verification of an individual’s identity or

16 eligibility for employment in the United

17 States.

18 ‘‘(B) USE OF RETAINED DOCUMENTS.—An

19 employer shall use copies retained under clause

20 (i) or (ii) of subparagraph (A) only for the pur21 poses of complying with the requirements of

22 this subsection, except as otherwise permitted

23 under law.

24 ‘‘(5) PENALTIES.—An employer that fails to

25 comply with the recordkeeping requirements of this
†

231

S 2611 ES

1 subsection shall be subject to the penalties described

2 in subsection (e)(4)(B).

3 ‘‘(6) NO AUTHORIZATION OF NATIONAL IDENTI4 FICATION CARDS.—Nothing in this section may be

5 construed to authorize, directly or indirectly, the

6 issuance, use, or establishment of a national identi7 fication card.

8 ‘‘(d) ELECTRONIC EMPLOYMENT VERIFICATION SYS9 TEM.—

10 ‘‘(1) REQUIREMENT FOR SYSTEM.—The Sec11 retary, in cooperation with the Commissioner of So12 cial Security, shall implement an Electronic Employ13 ment Verification System (referred to in this sub14 section as the ‘System’) to determine whether—

15 ‘‘(A) the identifying information submitted

16 by an individual is consistent with the informa17 tion maintained by the Secretary or the Com18 missioner of Social Security; and

19 ‘‘(B) such individual is eligible for employ20 ment in the United States.

21 ‘‘(2) REQUIREMENT FOR PARTICIPATION.—The

22 Secretary shall require all employers in the United

23 States to participate in the System, with respect to

24 all employees hired by the employer on or after the

25 date that is 18 months after the date that not less
†

232

S 2611 ES

1 than $400,000,000 have been appropriated and

2 made available to implement this subsection.

3 ‘‘(3) OTHER PARTICIPATION IN SYSTEM.—Not4 withstanding paragraph (2), the Secretary has the

5 authority—

6 ‘‘(A) to permit any employer that is not re7 quired to participate in the System under para8 graph (2) to participate in the System on a vol9 untary basis; and

10 ‘‘(B) to require any employer or class of

11 employers to participate on a priority basis in

12 the System with respect to individuals employed

13 as of, or hired after, the date of enactment of

14 the Comprehensive Immigration Reform Act of

15 2006—

16 ‘‘(i) if the Secretary designates such

17 employer or class of employers as a critical

18 employer based on an assessment of home19 land security or national security needs; or

20 ‘‘(ii) if the Secretary has reasonable

21 cause to believe that the employer has en22 gaged in material violations of paragraph

23 (1), (2), or (3) of subsection (a).

24 ‘‘(4) REQUIREMENT TO NOTIFY.—The Sec25 retary shall notify the employer or class of employers
†

233

S 2611 ES

1 in writing regarding the requirement for participa2 tion in the System under paragraph (3)(B) not less

3 than 60 days prior to the effective date of such re4 quirement. Such notice shall include the training

5 materials described in paragraph (8)(E)(v).

6 ‘‘(5) REGISTRATION OF EMPLOYERS.—An em7 ployer shall register the employer’s participation in

8 the System in the manner prescribed by the Sec9 retary prior to the date the employer is required or

10 permitted to submit information with respect to an

11 employee under this subsection.

12 ‘‘(6) ADDITIONAL GUIDANCE.—A registered em13 ployer shall be permitted to utilize any technology

14 that is consistent with this section and with any reg15 ulation or guidance from the Secretary to streamline

16 the procedures to facilitate compliance with—

17 ‘‘(A) the attestation requirement in sub18 section (c); and

19 ‘‘(B) the employment eligibility verification

20 requirements in this subsection.

21 ‘‘(7) CONSEQUENCE OF FAILURE TO PARTICI22 PATE.—If an employer is required to participate in

23 the System and fails to comply with the require24 ments of the System with respect to an employee—
†

234

S 2611 ES

1 ‘‘(A) such failure shall be treated as a vio2 lation of subsection (a)(1)(B); and

3 ‘‘(B) a rebuttable presumption is created

4 that the employer has violated subsection

5 (a)(1)(A), however, such presumption may not

6 apply to a prosecution under subsection (f)(1).

7 ‘‘(8) DESIGN AND OPERATION OF SYSTEM.—

8 ‘‘(A) IN GENERAL.—The Secretary shall,

9 through the System—

10 ‘‘(i) respond to each inquiry made by

11 a registered employer through the Internet

12 or other electronic media, or over a toll13 free telephone line regarding an individ14 ual’s identity and eligibility for employ15 ment in the United States; and

16 ‘‘(ii) maintain a record of each such

17 inquiry and the information provided in re18 sponse to such inquiry.

19 ‘‘(B) INITIAL INQUIRY.—

20 ‘‘(i) INFORMATION REQUIRED.—A

21 registered employer shall, with respect to

22 the hiring, or recruiting or referring for a

23 fee, any individual for employment in the

24 United States, obtain from the individual
†

235

S 2611 ES

1 and record on the form described in sub2 section (c)(1)(A)(i)—

3 ‘‘(I) the individual’s name and

4 date of birth and, if the individual

5 was born in the United States, the

6 State in which such individual was

7 born;

8 ‘‘(II) the individual’s social secu9 rity account number;

10 ‘‘(III) the employment identifica11 tion number of the individual’s em12 ployer during any one of the 5 most

13 recently completed calendar years;

14 and

15 ‘‘(IV) in the case of an individual

16 who does not attest that the indi17 vidual is a national of the United

18 States under subsection (c)(1)(A)(i),

19 such alien identification or authoriza20 tion number that the Secretary shall

21 require.

22 ‘‘(ii) SUBMISSION TO SYSTEM.—A reg23 istered employer shall submit an inquiry

24 through the System to seek confirmation of
†

236

S 2611 ES

1 the individual’s identity and eligibility for

2 employment in the United States—

3 ‘‘(I) not later than 3 days after

4 the date of the hiring, or recruiting or

5 referring for a fee, of the individual

6 (as the case may be); or

7 ‘‘(II) in the case of an employee

8 hired by a critical employer des9 ignated by the Secretary under para10 graph (3)(B) at such time as the Sec11 retary shall specify.

12 ‘‘(iii) EIN REQUIREMENTS.—

13 ‘‘(I) REQUIREMENT TO PRO14 VIDE.—An employer shall provide the

15 employer identification number issued

16 to such employer to the individual,

17 upon request, for purposes of pro18 viding the information under clause

19 (i)(III).

20 ‘‘(II) REQUIREMENT TO AFFIRM21 ATIVELY STATE A LACK OF RECENT

22 EMPLOYMENT.—An individual pro23 viding information under clause

24 (i)(III) who was not employed in the

25 United States during any of the 5
†

237

S 2611 ES

1 most recently completed calendar

2 years shall affirmatively state on the

3 form described in subsection

4 (c)(1)(A)(i) that no employer identi5 fication number is provided because

6 the individual was not employed in the

7 United States during such period.

8 ‘‘(C) INITIAL RESPONSE.—Not later than

9 10 days after an employer submits an inquiry

10 to the System regarding an individual, the Sec11 retary shall provide, through the System, to the

12 employer—

13 ‘‘(i) if the System is able to confirm

14 the individual’s identity and eligibility for

15 employment in the United States, a con16 firmation notice, including the appropriate

17 codes on such confirmation notice; or

18 ‘‘(ii) if the System is unable to con19 firm the individual’s identity or eligibility

20 for employment in the United States, and

21 after a secondary manual verification has

22 been conducted, a tentative nonconfirma23 tion notice, including the appropriate codes

24 on such tentative nonconfirmation notice.
†

238

S 2611 ES

1 ‘‘(D) CONFIRMATION OR NONCONFIRMA2 TION.—

3 ‘‘(i) CONFIRMATION UPON INITIAL IN4 QUIRY.—If an employer receives a con5 firmation notice under paragraph (C)(i) for

6 an individual, the employer shall record, on

7 the form described in subsection

8 (c)(1)(A)(i), the appropriate code provided

9 in such notice.

10 ‘‘(ii) TENTATIVE NONCONFIRMA11 TION.—If an employer receives a tentative

12 nonconfirmation notice under paragraph

13 (C)(ii) for an individual, the employer shall

14 inform such individual of the issuance of

15 such notice in writing, on a form pre16 scribed by the Secretary not later than 3

17 days after receiving such notice. Such indi18 vidual shall acknowledge receipt of such

19 notice in writing on the form described in

20 subsection (c)(1)(A)(i).

21 ‘‘(iii) NO CONTEST.—If the individual

22 does not contest the tentative nonconfirma23 tion notice within 10 days of receiving no24 tice from the individual’s employer, the no25 tice shall become final and the employer
†

239

S 2611 ES

1 shall record on the form described in sub2 section (1)(A)(i), the appropriate code pro3 vided through the System to indicate the

4 individual did not contest the tentative

5 nonconfirmation. An individual’s failure to

6 contest a tentative nonconfirmation shall

7 not be considered an admission of guilt

8 with respect to any violation of this Act or

9 any other provision of law.

10 ‘‘(iv) CONTEST.—If the individual

11 contests the tentative nonconfirmation no12 tice, the individual shall submit appro13 priate information to contest such notice

14 under the procedures established in sub15 paragraph (E)(iii) not later than 10 days

16 after receiving the notice from the individ17 ual’s employer.

18 ‘‘(v) EFFECTIVE PERIOD OF TEN19 TATIVE NONCONFIRMATION NOTICE.—A

20 tentative nonconfirmation notice shall re21 main in effect until such notice becomes

22 final under clause (iii), or the earlier of—

23 ‘‘(I) a final confirmation notice

24 or final nonconfirmation notice is

25 issued through the System; or
†

240

S 2611 ES

1 ‘‘(II) 30 days after the individual

2 contests a tentative nonconfirmation

3 under clause (iv).

4 ‘‘(vi) AUTOMATIC FINAL NOTICE.—

5 ‘‘(I) IN GENERAL.—If a final no6 tice is not issued within the 30-day

7 period described in clause (v)(II), the

8 Secretary shall automatically provide

9 to the employer, through the System,

10 the appropriate code indicating a final

11 notice.

12 ‘‘(II) PERIOD PRIOR TO INITIAL

13 CERTIFICATION.—During the period

14 beginning on the date of the enact15 ment of the Comprehensive Immigra16 tion Reform Act of 2006 and ending

17 on the date the Secretary submits the

18 initial report described in subpara19 graph (E)(ii), an automatic notice

20 issued under subclause (I) shall be a

21 final confirmation notice.

22 ‘‘(III) PERIOD AFTER INITIAL

23 CERTIFICATION.—After the date that

24 the Secretary submits the initial re25 port described in subparagraph
†

241

S 2611 ES

1 (E)(ii), an automatic notice issued

2 under subclause (I) shall be a final

3 confirmation notice unless the most

4 recent such report includes a certifi5 cation that the System is able to cor6 rectly issue, within the period begin7 ning on the date an employer submits

8 an inquiry to the System and ending

9 on the date an automatic default no10 tice would be issued by the System, a

11 final notice in at least 99 percent of

12 the cases in which the notice relates

13 to an individual who is eligible for em14 ployment in the United States. If the

15 most recent such report includes such

16 a certification, the automatic notice

17 issued under subclause (I) shall be a

18 final nonconfirmation notice.

19 ‘‘(IV) ADDITIONAL AUTHOR20 ITY.—Notwithstanding the second

21 sentence of subclause (III), the Sec22 retary shall have the authority to

23 issue a final confirmation notice for

24 an individual who would be subject to

25 a final nonconfirmation notice under
†

242

S 2611 ES

1 such sentence. In such a case, the

2 Secretary shall determine the individ3 ual’s eligibility for employment in the

4 United States and record the results

5 of such determination in the System

6 within 12 months.

7 ‘‘(vii) EFFECTIVE PERIOD OF FINAL

8 NOTICE.—A final confirmation notice

9 issued under this paragraph for an indi10 vidual shall remain in effect—

11 ‘‘(I) during any continuous pe12 riod of employment of such individual

13 by such employer, unless the Sec14 retary determines the final confirma15 tion was the result of identity fraud;

16 or

17 ‘‘(II) in the case of an alien au18 thorized to be employed in the United

19 States for a temporary period, during

20 such period.

21 ‘‘(viii) PROHIBITION ON TERMI22 NATION.—An employer may not terminate

23 the employment of an individual based on

24 a tentative nonconfirmation notice until

25 such notice becomes final under clause (iii)
†

243

S 2611 ES

1 or a final nonconfirmation notice is issued

2 for the individual by the System. Nothing

3 in this clause shall prohibit the termination

4 of employment for any reason other than

5 such tentative nonconfirmation.

6 ‘‘(ix) RECORDING OF CONTEST RESO7 LUTION.—The employer shall record on

8 the form described in subsection

9 (c)(1)(A)(i) the appropriate code that is

10 provided through the System to indicate a

11 final confirmation notice or final noncon12 firmation notice.

13 ‘‘(x) CONSEQUENCES OF NONCON14 FIRMATION.—If the employer has received

15 a final nonconfirmation regarding an indi16 vidual, the employer shall terminate the

17 employment, recruitment, or referral of the

18 individual. Such employer shall provide to

19 the Secretary any information relating to

20 the individual that the Secretary deter21 mines would assist the Secretary in enforc22 ing or administering the immigration laws.

23 If the employer continues to employ, re24 cruit, or refer the individual after receiving

25 final nonconfirmation, a rebuttable pre-
†

244

S 2611 ES

1 sumption is created that the employer has

2 violated subsections (a)(1)(A) and (a)(2).

3 Such presumption may not apply to a

4 prosecution under subsection (f)(1).

5 ‘‘(E) RESPONSIBILITIES OF THE SEC6 RETARY.—

7 ‘‘(i) IN GENERAL.—The Secretary

8 shall establish a reliable, secure method to

9 provide through the System, within the

10 time periods required by this subsection—

11 ‘‘(I) a determination of whether

12 the name and alien identification or

13 authorization number provided in an

14 inquiry by an employer is consistent

15 with such information maintained by

16 the Secretary in order to confirm the

17 validity of the information provided;

18 and

19 ‘‘(II) a determination of whether

20 the individual is authorized to be em21 ployed in the United States.

22 ‘‘(ii) ANNUAL REPORT AND CERTIFI23 CATION.—Not later than the date that is

24 24 months after the date that not less

25 than $400,000,000 have been appropriated
†

245

S 2611 ES

1 and made available to the Secretary to im2 plement this subsection, and annually

3 thereafter, the Secretary shall submit to

4 Congress a report that includes—

5 ‘‘(I) an assessment of whether

6 the System is able to correctly issue,

7 within the period described in sub8 paragraph (D)(v)(II), a final notice in

9 at least 99 percent of the cases in

10 which the final notice relates to an in11 dividual who is eligible for employ12 ment in the United States (excluding

13 an individual who fails to contest a

14 tentative nonconfirmation notice); and

15 ‘‘(II) if the assessment under

16 subclause (I) is that the System is

17 able to correctly issue within the spec18 ified time period a final notice in at

19 least 99 percent of the cases described

20 in such subclause, a certification of

21 such assessment.

22 ‘‘(iii) CONTEST AND SELF23 VERIFICATION.—The Secretary in con24 sultation with the Commissioner of Social

25 Security, shall establish procedures to per-
†

246

S 2611 ES

1 mit an individual who contests a tentative

2 or final nonconfirmation notice, or seeks to

3 verify the individual’s own employment eli4 gibility prior to obtaining or changing em5 ployment, to contact the appropriate agen6 cy and, in a timely manner, correct or up7 date the information used by the System.

8 ‘‘(iv) INFORMATION TO EMPLOYEE.—

9 The Secretary shall develop a written form

10 for employers to provide to individuals who

11 receive a tentative or final nonconfirmation

12 notice. Such form shall be made available

13 in a language other than English, as nec14 essary and reasonable, and shall include—

15 ‘‘(I) information about the reason

16 for such notice;

17 ‘‘(II) the right to contest such

18 notice;

19 ‘‘(III) contact information for the

20 appropriate agency and instructions

21 for initiating such contest; and

22 ‘‘(IV) a 24-hour toll-free tele23 phone number to respond to inquiries

24 related to such notice.
†

247

S 2611 ES

1 ‘‘(v) TRAINING MATERIALS.—The Sec2 retary shall make available or provide to

3 the employer, upon request, not later than

4 60 days prior to such employer’s participa5 tion in the System, appropriate training

6 materials to facilitate compliance with this

7 subsection, and sections 274B(a)(7) and

8 274C(a).

9 ‘‘(F) RESPONSIBILITIES OF THE COMMIS10 SIONER OF SOCIAL SECURITY.—The responsibil11 ities of the Commissioner of Social Security

12 with respect to the System are set out in sec13 tion 205(c)(2) of the Social Security Act.

14 ‘‘(9) PROTECTION FROM LIABILITY.—No em15 ployer that participates in the System shall be liable

16 under any law for any employment-related action

17 taken with respect to an individual in good faith reli18 ance on information provided by the System.

19 ‘‘(10) ADMINISTRATIVE REVIEW.—

20 ‘‘(A) IN GENERAL.—An individual who is

21 terminated from employment as a result of a

22 final nonconfirmation notice may, not later than

23 60 days after the date of such termination, file

24 an appeal of such notice.
†

248

S 2611 ES

1 ‘‘(B) PROCEDURES.—The Secretary and

2 Commissioner of Social Security shall develop

3 procedures to review appeals filed under sub4 paragraph (A) and to make final determina5 tions on such appeals.

6 ‘‘(C) REVIEW FOR ERRORS.—If a final de7 termination on an appeal filed under subpara8 graph (A) results in a confirmation of an indi9 vidual’s eligibility to work in the United States,

10 the administrative review process shall require

11 the Secretary to determine if the final noncon12 firmation notice issued for the individual was

13 the result of—

14 ‘‘(i) an error or negligence on the part

15 of an employee or official operating or re16 sponsible for the System;

17 ‘‘(ii) the decision rules, processes, or

18 procedures utilized by the System; or

19 ‘‘(iii) erroneous system information

20 that was not the result of acts or omissions

21 of the individual.

22 ‘‘(D) COMPENSATION FOR ERROR.—

23 ‘‘(i) IN GENERAL.—If the Secretary

24 makes a determination under subpara25 graph (C) that the final nonconfirmation
†

249

S 2611 ES

1 notice issued for an individual was not

2 caused by an act or omission of the indi3 vidual, the Secretary shall compensate the

4 individual for lost wages.

5 ‘‘(ii) CALCULATION OF LOST

6 WAGES.—Lost wages shall be calculated

7 based on the wage rate and work schedule

8 that prevailed prior to termination. The in9 dividual shall be compensated for wages

10 lost beginning on the first scheduled work

11 day after employment was terminated and

12 ending 180 days after completion of the

13 administrative review process described in

14 this paragraph or the day after the indi15 vidual is reinstated or obtains employment

16 elsewhere, whichever occurs first.

17 ‘‘(E) LIMITATION ON COMPENSATION.—

18 For purposes of determining an individual’s

19 compensation for the loss of employment, such

20 compensation shall not include any period in

21 which the individual was ineligible for employ22 ment in the United States.

23 ‘‘(F) SOURCE OF FUNDS.—Compensation

24 or reimbursement provided under this para25 graph shall not be provided from funds appro-
†

250

S 2611 ES

1 priated in annual appropriations Acts to the

2 Secretary for the Department of Homeland Se3 curity.

4 ‘‘(11) JUDICIAL REVIEW.—

5 ‘‘(A) IN GENERAL.—After the Secretary

6 makes a final determination on an appeal filed

7 by an individual under the administrative re8 view process described in paragraph (10), the

9 individual may obtain judicial review of such

10 determination by a civil action commenced not

11 later than 60 days after the date of such deci12 sion, or such further time as the Secretary may

13 allow.

14 ‘‘(B) JURISDICTION.—A civil action for

15 such judicial review shall be brought in the dis16 trict court of the United States for the judicial

17 district in which the plaintiff resides, or has a

18 principal place of business, or, if the plaintiff

19 does not reside or have a principal place of

20 business within any such judicial district, in the

21 District Court of the United States for the Dis22 trict of Columbia.

23 ‘‘(C) ANSWER.—As part of the Secretary’s

24 answer to a complaint for such judicial review,

25 the Secretary shall file a certified copy of the
†

251

S 2611 ES

1 administrative record compiled during the ad2 ministrative review under paragraph (10), in3 cluding the evidence upon which the findings

4 and decision complained of are based. The court

5 shall have power to enter, upon the pleadings

6 and transcript of the record, a judgment affirm7 ing or reversing the result of that administra8 tive review, with or without remanding the

9 cause for a rehearing.

10 ‘‘(D) COMPENSATION FOR ERROR.—

11 ‘‘(i) IN GENERAL.—In cases in which

12 such judicial review reverses the final de13 termination of the Secretary made under

14 paragraph (10), the court shall compensate

15 the individual for lost wages.

16 ‘‘(ii) CALCULATION OF LOST

17 WAGES.—Lost wages shall be calculated

18 based on the wage rate and work scheduled

19 that prevailed prior to termination. The in20 dividual shall be compensated for wages

21 lost beginning on the first scheduled work

22 day after employment was terminated and

23 ending 180 days after completion of the ju24 dicial review described in this paragraph or

25 the day after the individual is reinstated or
†

252

S 2611 ES

1 obtains employment elsewhere, whichever

2 occurs first.

3 ‘‘(12) LIMITATION ON COLLECTION AND USE

4 OF DATA.—

5 ‘‘(A) LIMITATION ON COLLECTION OF

6 DATA.—

7 ‘‘(i) IN GENERAL.—The System shall

8 collect and maintain only the minimum

9 data necessary to facilitate the successful

10 operation of the System, and in no case

11 shall the data be other than—

12 ‘‘(I) information necessary to

13 register employers under paragraph

14 (5);

15 ‘‘(II) information necessary to

16 initiate and respond to inquiries or

17 contests under paragraph (8);

18 ‘‘(III) information necessary to

19 establish and enforce compliance with

20 paragraphs (5) and (8);

21 ‘‘(IV) information necessary to

22 detect and prevent employment re23 lated identity fraud; and

24 ‘‘(V) such other information the

25 Secretary determines is necessary,
†

253

S 2611 ES

1 subject to a 180 day notice and com2 ment period in the Federal Register.

3 ‘‘(ii) PENALTIES.—Any officer, em4 ployee, or contractor who willfully and

5 knowingly collects and maintains data in

6 the System other than data described in

7 clause (i) shall be guilty of a misdemeanor

8 and fined not more than $1,000 for each

9 violation.

10 ‘‘(B) LIMITATION ON USE OF DATA.—

11 Whoever willfully and knowingly accesses, dis12 closes, or uses any information obtained or

13 maintained by the System—

14 ‘‘(i) for the purpose of committing

15 identity fraud, or assisting another person

16 in committing identity fraud, as defined in

17 section 1028 of title 18, United States

18 Code;

19 ‘‘(ii) for the purpose of unlawfully ob20 taining employment in the United States

21 or unlawfully obtaining employment in the

22 United States for any other person; or

23 ‘‘(iii) for any purpose other than as

24 provided for under any provision of law;
†

254

S 2611 ES

1 shall be guilty of a felony and upon conviction

2 shall be fined under title 18, United States

3 Code, or imprisoned for not more than 5 years,

4 or both.

5 ‘‘(C) EXCEPTIONS.—Nothing in subpara6 graph (A) or (B) may be construed to limit the

7 collection, maintenance, or use of data by the

8 Commissioner of Internal Revenue or the Com9 missioner of Social Security as provided by law.

10 ‘‘(13) MODIFICATION AUTHORITY.—The Sec11 retary, after notice is submitted to Congress and

12 provided to the public in the Federal Register, is au13 thorized to modify the requirements of this sub14 section with respect to completion of forms, method

15 of storage, attestations, copying of documents, sig16 natures, methods of transmitting information, and

17 other operational and technical aspects to improve

18 the efficiency, accuracy, and security of the System.

19 ‘‘(14) ANNUAL GAO STUDY AND REPORT.—

20 ‘‘(A) REQUIREMENT.—The Comptroller

21 General of the United States shall conduct an

22 annual study of the System.

23 ‘‘(B) PURPOSE.—The study shall evaluate

24 the accuracy, efficiency, integrity, and impact of

25 the System.
†

255

S 2611 ES

1 ‘‘(C) REPORT.—Not later than the date

2 that is 24 months after the date that not less

3 than $400,000,000 have been appropriated and

4 made available to the Secretary to implement

5 this subsection, and annually thereafter, the

6 Comptroller General shall submit to Congress a

7 report containing the findings of the study car8 ried out under this paragraph. Each such re9 port shall include, at a minimum, the following:

10 ‘‘(i) An assessment of the annual re11 port and certification described in para12 graph (8)(E)(ii).

13 ‘‘(ii) An assessment of System per14 formance with respect to the rate at which

15 individuals who are eligible for employment

16 in the United States are correctly approved

17 within each of the periods specified in

18 paragraph (8), including a separate assess19 ment of such rate for nationals and aliens.

20 ‘‘(iii) An assessment of the privacy

21 and security of the System and its effects

22 on identity fraud or the misuse of personal

23 data.
†

256

S 2611 ES

1 ‘‘(iv) An assessment of the effects of

2 the System on the employment of unau3 thorized aliens.

4 ‘‘(v) An assessment of the effects of

5 the System, including the effects of ten6 tative confirmations, on unfair immigra7 tion-related employment practices and em8 ployment discrimination based on national

9 origin or citizenship status.

10 ‘‘(vi) An assessment of whether the

11 Secretary and the Commissioner of Social

12 Security have adequate resources to carry

13 out the duties and responsibilities of this

14 section.

15 ‘‘(e) COMPLIANCE.—

16 ‘‘(1) COMPLAINTS AND INVESTIGATIONS.—The

17 Secretary shall establish procedures—

18 ‘‘(A) for individuals and entities to file

19 complaints regarding potential violations of sub20 section (a);

21 ‘‘(B) for the investigation of such com22 plaints that the Secretary determines are ap23 propriate to investigate; and
†

257

S 2611 ES

1 ‘‘(C) for the investigation of other viola2 tions of subsection (a) that the Secretary deter3 mines is appropriate.

4 ‘‘(2) AUTHORITY IN INVESTIGATIONS.—

5 ‘‘(A) IN GENERAL.—In conducting inves6 tigations and hearings under this subsection, of7 ficers and employees of the Department of

8 Homeland Security—

9 ‘‘(i) shall have reasonable access to

10 examine evidence regarding any employer

11 being investigated; and

12 ‘‘(ii) if designated by the Secretary,

13 may compel by subpoena the attendance of

14 witnesses and the production of evidence at

15 any designated place in an investigation or

16 case under this subsection.

17 ‘‘(B) FAILURE TO COOPERATE.—In case of

18 refusal to obey a subpoena lawfully issued

19 under subparagraph (A)(ii), the Secretary may

20 request that the Attorney General apply in an

21 appropriate district court of the United States

22 for an order requiring compliance with such

23 subpoena, and any failure to obey such order

24 may be punished by such court as contempt.
†

258

S 2611 ES

1 ‘‘(C) DEPARTMENT OF LABOR.—The Sec2 retary of Labor shall have the investigative au3 thority provided under section 11(a) of the Fair

4 Labor Standards Act of 1938 (29 U.S.C.

5 211(a)) to ensure compliance with the provi6 sions of this section.

7 ‘‘(3) COMPLIANCE PROCEDURES.—

8 ‘‘(A) PREPENALTY NOTICE.—If the Sec9 retary has reasonable cause to believe that

10 there has been a violation of a requirement of

11 this section and determines that further pro12 ceedings related to such violation are war13 ranted, the Secretary shall issue to the em14 ployer concerned a written notice of the Sec15 retary’s intention to issue a claim for a fine or

16 other penalty. Such notice shall—

17 ‘‘(i) describe the violation;

18 ‘‘(ii) specify the laws and regulations

19 allegedly violated;

20 ‘‘(iii) specify the amount of fines or

21 other penalties to be imposed;

22 ‘‘(iv) disclose the material facts which

23 establish the alleged violation; and

24 ‘‘(v) inform such employer that the

25 employer shall have a reasonable oppor-
†

259

S 2611 ES

1 tunity to make representations as to why a

2 claim for a monetary or other penalty

3 should not be imposed.

4 ‘‘(B) REMISSION OR MITIGATION OF PEN5 ALTIES.—

6 ‘‘(i) REVIEW BY SECRETARY.—If the

7 Secretary determines that such fine or

8 other penalty was incurred erroneously, or

9 determines the existence of such mitigating

10 circumstances as to justify the remission

11 or mitigation of such fine or penalty, the

12 Secretary may remit or mitigate such fine

13 or other penalty on the terms and condi14 tions as the Secretary determines are rea15 sonable and just, or order termination of

16 any proceedings related to the notice.

17 ‘‘(ii) APPLICABILITY.—This subpara18 graph may not apply to an employer that

19 has or is engaged in a pattern or practice

20 of violations of paragraph (1), (2), or (3)

21 of subsection (a) or of any other require22 ments of this section.

23 ‘‘(C) PENALTY CLAIM.—After considering

24 evidence and representations offered by the em25 ployer, the Secretary shall determine whether
†

260

S 2611 ES

1 there was a violation and promptly issue a writ2 ten final determination setting forth the find3 ings of fact and conclusions of law on which the

4 determination is based and the appropriate pen5 alty.

6 ‘‘(4) CIVIL PENALTIES.—

7 ‘‘(A) HIRING OR CONTINUING TO EMPLOY

8 UNAUTHORIZED ALIENS.—Any employer that

9 violates any provision of paragraph (1), (2), or

10 (3) of subsection (a) shall pay civil penalties as

11 follows:

12 ‘‘(i) Pay a civil penalty of not less

13 than $500 and not more than $4,000 for

14 each unauthorized alien with respect to

15 each such violation.

16 ‘‘(ii) If the employer has previously

17 been fined 1 time during the 12-month pe18 riod preceding the violation under this sub19 paragraph, pay a civil penalty of not less

20 than $4,000 and not more than $10,000

21 for each unauthorized alien with respect to

22 each such violation.

23 ‘‘(iii) If the employer has previously

24 been fined more than 1 time during the

25 24-month period preceding the violation
†

261

S 2611 ES

1 under this subparagraph or has failed to

2 comply with a previously issued and final

3 order related to any such provision, pay a

4 civil penalty of not less than $6,000 and

5 not more than $20,000 for each unauthor6 ized alien with respect to each such viola7 tion.

8 ‘‘(B) RECORDKEEPING OR VERIFICATION

9 PRACTICES.—Any employer that violates or fails

10 to comply with the recordkeeping requirements

11 of subsections (a), (c), and (d), shall pay a civil

12 penalty as follows:

13 ‘‘(i) Pay a civil penalty of not less

14 than $200 and not more than $2,000 for

15 each such violation.

16 ‘‘(ii) If the employer has previously

17 been fined 1 time during the 12-month pe18 riod preceding the violation under this sub19 paragraph, pay a civil penalty of not less

20 than $400 and not more than $4,000 for

21 each such violation.

22 ‘‘(iii) If the employer has previously

23 been fined more than 1 time during the

24 24-month period preceding the violation

25 under this subparagraph or has failed to
†

262

S 2611 ES

1 comply with a previously issued and final

2 order related to such requirements, pay a

3 civil penalty of not less than $600 and not

4 more than $6,000 for each such violation.

5 ‘‘(C) OTHER PENALTIES.—Notwith6 standing subparagraphs (A) and (B), the Sec7 retary may impose additional penalties for vio8 lations, including violations of cease and desist

9 orders, specially designed compliance plans to

10 prevent further violations, suspended fines to

11 take effect in the event of a further violation,

12 and in appropriate cases, the criminal penalty

13 described in subsection (f).

14 ‘‘(5) JUDICIAL REVIEW.—An employer ad15 versely affected by a final determination may, within

16 45 days after the date the final determination is

17 issued, file a petition in any appropriate district

18 court of the United States. The filing of a petition

19 as provided in this paragraph shall stay the Sec20 retary’s determination until entry of judgment by

21 the court. The burden shall be on the employer to

22 show that the final determination was not supported

23 by substantial evidence. The Secretary is authorized

24 to require that the petitioner provide, prior to filing

25 for review, security for payment of fines and pen-
†

263

S 2611 ES

1 alties through bond or other guarantee of payment

2 acceptable to the Secretary.

3 ‘‘(6) ENFORCEMENT OF ORDERS.—If an em4 ployer fails to comply with a final determination

5 issued against that employer under this subsection,

6 and the final determination is not subject to review

7 as provided in paragraph (5), the Attorney General

8 may file suit to enforce compliance with the final de9 termination, not earlier than 46 days and not later

10 than 180 days after the date the final determination

11 is issued, in any appropriate district court of the

12 United States. In any such suit, the validity and ap13 propriateness of the final determination shall not be

14 subject to review.

15 ‘‘(7) RECOVERY OF COSTS AND ATTORNEY’S

16 FEES.—In any appeal brought under paragraph (5)

17 or suit brought under paragraph (6) of this section

18 the employer shall be entitled to recover from the

19 Secretary reasonable costs and attorney’s fees if

20 such employer substantially prevails on the merits of

21 the case. Such an award of attorney’s fees may not

22 exceed $25,000. Any such costs and attorney’s fees

23 assessed against the Secretary shall be charged

24 against the operating expenses of the Department
†

264

S 2611 ES

1 for the fiscal year in which the assessment is made,

2 and may not be reimbursed from any other source.

3 ‘‘(f) CRIMINAL PENALTIES AND INJUNCTIONS FOR

4 PATTERN OR PRACTICE VIOLATIONS.—

5 ‘‘(1) CRIMINAL PENALTY.—An employer that

6 engages in a pattern or practice of knowing viola7 tions of subsection (a)(1)(A) or (a)(2) shall be fined

8 not more than $20,000 for each unauthorized alien

9 with respect to whom such a violation occurs, im10 prisoned for not more than 3 years for the entire

11 pattern or practice, or both.

12 ‘‘(2) ENJOINING OF PATTERN OR PRACTICE

13 VIOLATIONS.—If the Secretary or the Attorney Gen14 eral has reasonable cause to believe that an employer

15 is engaged in a pattern or practice of employment,

16 recruitment, or referral in violation of paragraph

17 (1)(A) or (2) of subsection (a), the Attorney General

18 may bring a civil action in the appropriate district

19 court of the United States requesting a permanent

20 or temporary injunction, restraining order, or other

21 order against the employer, as the Secretary deems

22 necessary.

23 ‘‘(g) ADJUSTMENT FOR INFLATION.—All penalties

24 and limitations on the recovery of costs and attorney’s fees

25 in this section shall be increased every 4 years beginning
†

265

S 2611 ES

1 January 2010 to reflect the percentage increase in the

2 consumer price index for all urban consumers (all items;

3 U.S. city average) for the 48 month period ending with

4 September of the year preceding the year such adjustment

5 is made. Any adjustment under this subparagraph shall

6 be rounded to the nearest dollar.

7 ‘‘(h) PROHIBITION OF INDEMNITY BONDS.—

8 ‘‘(1) PROHIBITION.—It is unlawful for an em9 ployer, in the hiring, recruiting, or referring for a

10 fee, of an individual, to require the individual to post

11 a bond or security, to pay or agree to pay an

12 amount, or otherwise to provide a financial guar13 antee or indemnity, against any potential liability

14 arising under this section relating to such hiring, re15 cruiting, or referring of the individual.

16 ‘‘(2) CIVIL PENALTY.—Any employer which is

17 determined, after notice and opportunity for mitiga18 tion of the monetary penalty under subsection (e), to

19 have violated paragraph (1) of this subsection shall

20 be subject to a civil penalty of $10,000 for each vio21 lation and to an administrative order requiring the

22 return of any amounts received in violation of such

23 paragraph to the employee or, if the employee can24 not be located, to the Employer Compliance Fund

25 established under section 286(w).
†

266

S 2611 ES

1 ‘‘(i) PROHIBITION ON AWARD OF GOVERNMENT CON2 TRACTS, GRANTS, AND AGREEMENTS.—

3 ‘‘(1) EMPLOYERS WITH NO CONTRACTS,

4 GRANTS, OR AGREEMENTS.—

5 ‘‘(A) IN GENERAL.—If an employer who

6 does not hold a Federal contract, grant, or co7 operative agreement is determined by the Sec8 retary to be a repeat violator of this section or

9 is convicted of a crime under this section, the

10 employer shall be debarred from the receipt of

11 a Federal contract, grant, or cooperative agree12 ment for a period of 5 years. The Secretary or

13 the Attorney General shall advise the Adminis14 trator of General Services of such a debarment,

15 and the Administrator of General Services shall

16 list the employer on the List of Parties Ex17 cluded from Federal Procurement and Non18 procurement Programs for a period of 5 years.

19 ‘‘(B) WAIVER.—The Administrator of Gen20 eral Services, in consultation with the Secretary

21 and the Attorney General, may waive operation

22 of this subsection or may limit the duration or

23 scope of the debarment.

24 ‘‘(2) EMPLOYERS WITH CONTRACTS, GRANTS,

25 OR AGREEMENTS.—
†

267

S 2611 ES

1 ‘‘(A) IN GENERAL.—An employer who

2 holds a Federal contract, grant, or cooperative

3 agreement and is determined by the Secretary

4 to be a repeat violator of this section or is con5 victed of a crime under this section, shall be

6 debarred from the receipt of new Federal con7 tracts, grants, or cooperative agreements for a

8 period of 5 years.

9 ‘‘(B) NOTICE TO AGENCIES.—Prior to de10 barring the employer under subparagraph (A),

11 the Secretary, in cooperation with the Adminis12 trator of General Services, shall advise any

13 agency or department holding a contract, grant,

14 or cooperative agreement with the employer of

15 the Government’s intention to debar the em16 ployer from the receipt of new Federal con17 tracts, grants, or cooperative agreements for a

18 period of 5 years.

19 ‘‘(C) WAIVER.—After consideration of the

20 views of any agency or department that holds

21 a contract, grant, or cooperative agreement

22 with the employer, the Secretary may, in lieu of

23 debarring the employer from the receipt of new

24 Federal contracts, grants, or cooperative agree25 ments for a period of 5 years, waive operation
†

268

S 2611 ES

1 of this subsection, limit the duration or scope of

2 the debarment, or may refer to an appropriate

3 lead agency the decision of whether to debar the

4 employer, for what duration, and under what

5 scope in accordance with the procedures and

6 standards prescribed by the Federal Acquisition

7 Regulation. However, any proposed debarment

8 predicated on an administrative determination

9 of liability for civil penalty by the Secretary or

10 the Attorney General shall not be reviewable in

11 any debarment proceeding. The decision of

12 whether to debar or take alternate action under

13 this subparagraph shall not be judicially re14 viewed.

15 ‘‘(3) SUSPENSION.—Indictments for violations

16 of this section or adequate evidence of actions that

17 could form the basis for debarment under this sub18 section shall be considered a cause for suspension

19 under the procedures and standards for suspension

20 prescribed by the Federal Acquisition Regulation.

21 ‘‘(j) MISCELLANEOUS PROVISIONS.—

22 ‘‘(1) DOCUMENTATION.—In providing docu23 mentation or endorsement of authorization of aliens

24 eligible to be employed in the United States, the

25 Secretary shall provide that any limitations with re-
†

269

S 2611 ES

1 spect to the period or type of employment or em2 ployer shall be conspicuously stated on the docu3 mentation or endorsement (other than aliens law4 fully admitted for permanent residence).

5 ‘‘(2) PREEMPTION.—The provisions of this sec6 tion preempt any State or local law imposing civil or

7 criminal sanctions (other than through licensing and

8 similar laws) upon those who employ, or recruit or

9 refer for a fee for employment, unauthorized aliens.

10 ‘‘(k) DEPOSIT OF AMOUNTS RECEIVED.—Except as

11 otherwise specified, civil penalties collected under this sec12 tion shall be deposited by the Secretary into the Employer

13 Compliance Fund established under section 286(w).

14 ‘‘(l) DEFINITIONS.—In this section:

15 ‘‘(1) EMPLOYER.—The term ‘employer’ means

16 any person or entity, including any entity of the

17 Government of the United States, hiring, recruiting,

18 or referring an individual for employment in the

19 United States.

20 ‘‘(2) SECRETARY.—Except as otherwise pro21 vided, the term ‘Secretary’ means the Secretary of

22 Homeland Security.

23 ‘‘(3) UNAUTHORIZED ALIEN.—The term ‘unau24 thorized alien’ means, with respect to the employ-
†

270

S 2611 ES

1 ment of an alien at a particular time, that the alien

2 is not at that time either—

3 ‘‘(A) an alien lawfully admitted for perma4 nent residence; or

5 ‘‘(B) authorized to be so employed by this

6 Act or by the Secretary.’’.

7 (b) CONFORMING AMENDMENTS.—

8 (1) AMENDMENTS.—

9 (A) REPEAL OF BASIC PILOT.—Sections

10 401, 402, 403, 404, and 405 of the Illegal Im11 migration Reform and Immigrant Responsibility

12 Act of 1996 (division C of Public Law 104–

13 208; 8 U.S.C. 1324a note) are repealed.

14 (B) REPEAL OF REPORTING REQUIRE15 MENTS.—

16 (i) REPORT ON EARNINGS OF ALIENS

17 NOT AUTHORIZED TO WORK.—Subsection

18 (c) of section 290 (8 U.S.C. 1360) is re19 pealed.

20 (ii) REPORT ON FRAUDULENT USE OF

21 SOCIAL SECURITY ACCOUNT NUMBERS.—

22 Subsection (b) of section 414 of the Illegal

23 Immigration Reform and Immigrant Re24 sponsibility Act of 1996 (division C of
†

271

S 2611 ES

1 Public Law 104–208; 8 U.S.C. 1360 note)

2 is repealed.

3 (2) CONSTRUCTION.—Nothing in this sub4 section or in subsection (d) of section 274A, as

5 amended by subsection (a), may be construed to

6 limit the authority of the Secretary to allow or con7 tinue to allow the participation of employers who

8 participated in the basic pilot program under sec9 tions 401, 402, 403, 404, and 405 of the Illegal Im10 migration Reform and Immigrant Responsibility Act

11 of 1996 (division C of Public Law 104–208; 8

12 U.S.C. 1324a note) in the Electronic Employment

13 Verification System established pursuant to such

14 subsection (d).

15 (c) TECHNICAL AMENDMENTS.—

16 (1) DEFINITION OF UNAUTHORIZED ALIEN.—

17 Sections 218(i)(1) (8 U.S.C. 1188(i)(1)), 245(c)(8)

18 (8 U.S.C. 1255(c)(8)), 274(a)(3)(B)(i) (8 U.S.C.

19 1324(a)(3)(B)(i)), and 274B(a)(1) (8 U.S.C.

20 1324b(a)(1)) are amended by striking ‘‘274A(h)(3)’’

21 and inserting ‘‘274A’’.

22 (2) DOCUMENT REQUIREMENTS.—Section 274B

23 (8 U.S.C. 1324b) is amended—
†

272

S 2611 ES

1 (A) in subsections (a)(6) and (g)(2)(B), by

2 striking ‘‘274A(b)’’ and inserting ‘‘274A(c) and

3 (d)’’; and

4 (B) in subsection (g)(2)(B)(ii), by striking

5 ‘‘274A(b)(5)’’ and inserting ‘‘274A(c)’’.

6 (d) AMENDMENTS TO THE SOCIAL SECURITY ACT.—

7 Section 205(c)(2) of the Social Security Act (42 U.S.C.

8 405(c)(2)) is amended by adding at the end the following

9 new subparagraphs:

10 ‘‘(I)(i) The Commissioner of Social Security shall,

11 subject to the provisions of section 301(f)(2) of the Com12 prehensive Immigration Reform Act of 2006, establish a

13 reliable, secure method to provide through the Electronic

14 Employment Verification System established pursuant to

15 subsection (d) of section 274A of the Immigration and Na16 tionality Act (referred to in this subparagraph as the ‘Sys17 tem’), within the time periods required by paragraph (8)

18 of such subsection—

19 ‘‘(I) a determination of whether the name, date

20 of birth, employer identification number, and social

21 security account number of an individual provided in

22 an inquiry made to the System by an employer is

23 consistent with such information maintained by the

24 Commissioner in order to confirm the validity of the

25 information provided;
†

273

S 2611 ES

1 ‘‘(II) a determination of the citizenship status

2 associated with such name and social security ac3 count number, according to the records maintained

4 by the Commissioner;

5 ‘‘(III) a determination of whether the name and

6 number belongs to an individual who is deceased, ac7 cording to the records maintained by the Commis8 sioner;

9 ‘‘(IV) a determination of whether the name and

10 number is blocked in accordance with clause (ii); and

11 ‘‘(V) a confirmation notice or a nonconfirma12 tion notice described in such paragraph (8), in a

13 manner that ensures that other information main14 tained by the Commissioner is not disclosed or re15 leased to employers through the System.

16 ‘‘(ii) The Commissioner of Social Security shall pre17 vent the fraudulent or other misuse of a social security

18 account number by establishing procedures under which

19 an individual who has been assigned a social security ac20 count number may block the use of such number under

21 the System and remove such block.

22 ‘‘(J) In assigning social security account numbers to

23 aliens who are authorized to work in the United States

24 under section 218A of the Immigration and Nationality

25 Act, the Commissioner of Social Security shall, to the
†

274

S 2611 ES

1 maximum extent practicable, assign such numbers by em2 ploying the enumeration procedure administered jointly by

3 the Commissioner, the Secretary of State, and the Sec4 retary.’’.

5 (e) DISCLOSURE OF CERTAIN TAXPAYER IDENTITY

6 INFORMATION.—

7 (1) IN GENERAL.—Section 6103(l) of the Inter8 nal Revenue Code of 1986 is amended by adding at

9 the end the following new paragraph:

10 ‘‘(21) DISCLOSURE OF CERTAIN TAXPAYER

11 IDENTITY INFORMATION BY SOCIAL SECURITY AD12 MINISTRATION TO DEPARTMENT OF HOMELAND SE13 CURITY.—

14 ‘‘(A) IN GENERAL.—From taxpayer iden15 tity information which has been disclosed to the

16 Social Security Administration and upon writ17 ten request by the Secretary of Homeland Secu18 rity, the Commissioner of Social Security shall

19 disclose directly to officers, employees, and con20 tractors of the Department of Homeland Secu21 rity the following information:

22 ‘‘(i) DISCLOSURE OF EMPLOYER NO23 MATCH NOTICES.—Taxpayer identity infor24 mation of each person who has filed an in25 formation return required by reason of sec-
†

275

S 2611 ES

1 tion 6051 during calendar year 2006,

2 2007, or 2008 which contains—

3 ‘‘(I) more than 100 names and

4 taxpayer identifying numbers of em5 ployees (within the meaning of such

6 section) that did not match the

7 records maintained by the Commis8 sioner of Social Security, or

9 ‘‘(II) more than 10 names of em10 ployees (within the meaning of such

11 section) with the same taxpayer iden12 tifying number.

13 ‘‘(ii) DISCLOSURE OF INFORMATION

14 REGARDING USE OF DUPLICATE EMPLOYEE

15 TAXPAYER IDENTIFYING INFORMATION.—

16 Taxpayer identity information of each per17 son who has filed an information return re18 quired by reason of section 6051 which the

19 Commissioner of Social Security has rea20 son to believe, based on a comparison with

21 information submitted by the Secretary of

22 Homeland Security, contains evidence of

23 identity fraud due to the multiple use of

24 the same taxpayer identifying number (as-
†

276

S 2611 ES

1 signed under section 6109) of an employee

2 (within the meaning of section 6051).

3 ‘‘(iii) DISCLOSURE OF INFORMATION

4 REGARDING NONPARTICIPATING EMPLOY5 ERS.—Taxpayer identity information of

6 each person who has filed an information

7 return required by reason of section 6051

8 which the Commissioner of Social Security

9 has reason to believe, based on a compari10 son with information submitted by the Sec11 retary of Homeland Security, contains evi12 dence of such person’s failure to register

13 and participate in the Electronic Employ14 ment Verification System authorized under

15 section 274A(d) of the Immigration and

16 Nationality Act (hereafter in this para17 graph referred to as the ‘System’).

18 ‘‘(iv) DISCLOSURE OF INFORMATION

19 REGARDING NEW EMPLOYEES OF NON20 PARTICIPATING EMPLOYERS.—Taxpayer

21 identity information of all employees (with22 in the meaning of section 6051) hired after

23 the date a person identified in clause (iii)

24 is required to participate in the System

25 under section 274A(d)(2) or section
†

277

S 2611 ES

1 274A(d)(3)(B) of the Immigration and Na2 tionality Act.

3 ‘‘(v) DISCLOSURE OF INFORMATION

4 REGARDING EMPLOYEES OF CERTAIN DES5 IGNATED EMPLOYERS.—Taxpayer identity

6 information of all employees (within the

7 meaning of section 6051) of each person

8 who is required to participate in the Sys9 tem under section 274A(d)(3)(B) of the

10 Immigration and Nationality Act.

11 ‘‘(vi) DISCLOSURE OF NEW HIRE TAX12 PAYER IDENTITY INFORMATION.—Tax13 payer identity information of each person

14 participating in the System and taxpayer

15 identity information of all employees (with16 in the meaning of section 6051) of such

17 person hired during the period beginning

18 with the later of—

19 ‘‘(I) the date such person begins

20 to participate in the System, or

21 ‘‘(II) the date of the request im22 mediately preceding the most recent

23 request under this clause,

24 ending with the date of the most recent re25 quest under this clause.
†

278

S 2611 ES

1 ‘‘(B) RESTRICTION ON DISCLOSURE.—The

2 Commissioner of Social Security shall disclose

3 taxpayer identity information under subpara4 graph (A) only for purposes of, and to the ex5 tent necessary in—

6 ‘‘(i) establishing and enforcing em7 ployer participation in the System,

8 ‘‘(ii) carrying out, including through

9 civil administrative and civil judicial pro10 ceedings, of sections 212, 217, 235, 237,

11 238, 274A, 274B, and 274C of the Immi12 gration and Nationality Act, and

13 ‘‘(iii) the civil operation of the Alien

14 Terrorist Removal Court.

15 ‘‘(C) REIMBURSEMENT.—The Commis16 sioner of Social Security shall prescribe a rea17 sonable fee schedule for furnishing taxpayer

18 identity information under this paragraph and

19 collect such fees in advance from the Secretary

20 of Homeland Security.

21 ‘‘(D) TERMINATION.—This paragraph

22 shall not apply to any request made after the

23 date which is 3 years after the date of the en24 actment of this paragraph.’’.
†

279

S 2611 ES

1 (2) COMPLIANCE BY DHS CONTRACTORS WITH

2 CONFIDENTIALITY SAFEGUARDS.—

3 (A) IN GENERAL.—Section 6103(p) of

4 such Code is amended by adding at the end the

5 following new paragraph:

6 ‘‘(9) DISCLOSURE TO DHS CONTRACTORS.—

7 Notwithstanding any other provision of this section,

8 no return or return information shall be disclosed to

9 any contractor of the Department of Homeland Se10 curity unless such Department, to the satisfaction of

11 the Secretary—

12 ‘‘(A) has requirements in effect which re13 quire each such contractor which would have

14 access to returns or return information to pro15 vide safeguards (within the meaning of para16 graph (4)) to protect the confidentiality of such

17 returns or return information,

18 ‘‘(B) agrees to conduct an on-site review

19 every 3 years (mid-point review in the case of

20 contracts or agreements of less than 1 year in

21 duration) of each contractor to determine com22 pliance with such requirements,

23 ‘‘(C) submits the findings of the most re24 cent review conducted under subparagraph (B)
†

280

S 2611 ES

1 to the Secretary as part of the report required

2 by paragraph (4)(E), and

3 ‘‘(D) certifies to the Secretary for the most

4 recent annual period that such contractor is in

5 compliance with all such requirements.

6 The certification required by subparagraph (D) shall

7 include the name and address of each contractor, a

8 description of the contract or agreement with such

9 contractor, and the duration of such contract or

10 agreement.’’.

11 (3) CONFORMING AMENDMENTS.—

12 (A) Section 6103(a)(3) of such Code is

13 amended by striking ‘‘or (20)’’ and inserting

14 ‘‘(20), or (21)’’.

15 (B) Section 6103(p)(3)(A) of such Code is

16 amended by adding at the end the following

17 new sentence: ‘‘The Commissioner of Social Se18 curity shall provide to the Secretary such infor19 mation as the Secretary may require in carrying

20 out this paragraph with respect to return infor21 mation inspected or disclosed under the author22 ity of subsection (l)(21).’’.

23 (C) Section 6103(p)(4) of such Code is

24 amended—
†

281

S 2611 ES

1 (i) by striking ‘‘or (17)’’ both places it

2 appears and inserting ‘‘(17), or (21)’’, and

3 (ii) by striking ‘‘or (20)’’ each place it

4 appears and inserting ‘‘(20), or (21)’’.

5 (D) Section 6103(p)(8)(B) of such Code is

6 amended by inserting ‘‘or paragraph (9)’’ after

7 ‘‘subparagraph (A)’’.

8 (E) Section 7213(a)(2) of such Code is

9 amended by striking ‘‘or (20)’’ and inserting

10 ‘‘(20), or (21)’’.

11 (f) AUTHORIZATION OF APPROPRIATIONS.—

12 (1) IN GENERAL.—There are authorized to be

13 appropriated to the Secretary such sums as are nec14 essary to carry out the amendments made by this

15 section.

16 (2) LIMITATION ON VERIFICATION RESPON17 SIBILITIES OF COMMISSIONER OF SOCIAL SECU18 RITY.—The Commissioner of Social Security is au19 thorized to perform activities with respect to car20 rying out the Commissioner’s responsibilities in this

21 title or the amendments made by this title, but only

22 to the extent the Secretary has provided, in advance,

23 funds to cover the Commissioner’s full costs in car24 rying out such responsibilities. In no case shall

25 funds from the Federal Old-Age and Survivors In-
†

282

S 2611 ES

1 surance Trust Fund or the Federal Disability Insur2 ance Trust Fund be used to carry out such respon3 sibilities.

4 (g) EFFECTIVE DATES.—

5 (1) IN GENERAL.—The amendments made by

6 subsections (a), (b), (c), and (d) shall take effect on

7 the date that is 180 days after the date of the enact8 ment of this Act.

9 (2) SUBSECTION (e).—

10 (A) IN GENERAL.—The amendments made

11 by subsection (e) shall apply to disclosures

12 made after the date of the enactment of this

13 Act.

14 (B) CERTIFICATIONS.—The first certifi15 cation under section 6103(p)(9)(D) of the In16 ternal Revenue Code of 1986, as added by sub17 section (e)(2), shall be made with respect to cal18 endar year 2007.

19 SEC. 302. EMPLOYER COMPLIANCE FUND.

20 Section 286 (8 U.S.C. 1356) is amended by adding

21 at the end the following new subsection:

22 ‘‘(w) EMPLOYER COMPLIANCE FUND.—

23 ‘‘(1) IN GENERAL.—There is established in the

24 general fund of the Treasury, a separate account,
†

283

S 2611 ES

1 which shall be known as the ‘Employer Compliance

2 Fund’ (referred to in this subsection as the ‘Fund’).

3 ‘‘(2) DEPOSITS.—There shall be deposited as

4 offsetting receipts into the Fund all civil monetary

5 penalties collected by the Secretary of Homeland Se6 curity under section 274A.

7 ‘‘(3) PURPOSE.—Amounts refunded to the Sec8 retary from the Fund shall be used for the purposes

9 of enhancing and enforcing employer compliance

10 with section 274A.

11 ‘‘(4) AVAILABILITY OF FUNDS.—Amounts de12 posited into the Fund shall remain available until

13 expended and shall be refunded out of the Fund by

14 the Secretary of the Treasury, at least on a quar15 terly basis, to the Secretary of Homeland Security.’’.

16 SEC. 303. ADDITIONAL WORKSITE ENFORCEMENT AND

17 FRAUD DETECTION AGENTS.

18 (a) INCREASE IN NUMBER OF PERSONNEL.—The

19 Secretary shall, subject to the availability of appropria20 tions for such purpose, annually increase, by not less than

21 2,200, the number of personnel of the Bureau of Immigra22 tion and Customs Enforcement during the 5-year period

23 beginning on the date of the enactment of this Act.

24 (b) USE OF PERSONNEL.—The Secretary shall en25 sure that not less than 25 percent of all the hours ex-
†

284

S 2611 ES

1 pended by personnel of the Bureau of Immigration and

2 Customs Enforcement shall be used to enforce compliance

3 with sections 274A and 274C of the Immigration and Na4 tionality Act (8 U.S.C. 1324a and 1324c).

5 (c) AUTHORIZATION OF APPROPRIATIONS.—There

6 are authorized to be appropriated to the Secretary for

7 each of the fiscal years 2007 through 2011 such sums as

8 may be necessary to carry out this section.

9 SEC. 304. CLARIFICATION OF INELIGIBILITY FOR MIS10 REPRESENTATION.

11 Section 212(a)(6)(C)(ii)(I) (8 U.S.C.

12 1182(a)(6)(C)(ii)(I)), is amended by striking ‘‘citizen’’

13 and inserting ‘‘national’’.

14 SEC. 305. ANTIDISCRIMINATION PROTECTIONS.

15 (a) APPLICATION OF PROHIBITION OF DISCRIMINA16 TION TO VERIFICATION SYSTEM.—Section 274B(a)(1) (8

17 U.S.C. 1324b(a)(1)) is amended by inserting ‘‘, the

18 verification of the individual’s work authorization through

19 the Electronic Employment Verification System described

20 in section 274A(d),’’ after ‘‘the individual for employ21 ment’’.

22 (b) CLASSES OF ALIENS AS PROTECTED INDIVID23 UALS.—Section 274B(a)(3)(B) (8 U.S.C. 1324b(a)(3)(B))

24 is amended to read as follows:

25 ‘‘(B) is an alien who is—
†

285

S 2611 ES

1 ‘‘(i) lawfully admitted for permanent

2 residence;

3 ‘‘(ii) granted the status of an alien

4 lawfully admitted for temporary residence

5 under section 210(a) or 245(a)(1);

6 ‘‘(iii) admitted as a refugee under sec7 tion 207;

8 ‘‘(iv) granted asylum under section

9 208;

10 ‘‘(v) granted the status of a non11 immigrant under section

12 101(a)(15)(H)(ii)(c);

13 ‘‘(vi) granted temporary protected sta14 tus under section 244; or

15 ‘‘(vii) granted parole under section

16 212(d)(5).’’.

17 (c) REQUIREMENTS FOR ELECTRONIC EMPLOYMENT

18 VERIFICATION.—Section 274B(a) (8 U.S.C. 1324b(a)) is

19 amended by adding at the end the following:

20 ‘‘(7) ANTIDISCRIMINATION REQUIREMENTS OF

21 THE ELECTRONIC EMPLOYMENT VERIFICATION SYS22 TEM.—It is an unfair immigration-related employ23 ment practice for a person or other entity, in the

24 course of the electronic verification process described

25 in section 274A(d)—
†

286

S 2611 ES

1 ‘‘(A) to terminate or undertake any ad2 verse employment action due to a tentative non3 confirmation;

4 ‘‘(B) to use the verification system for

5 screening of an applicant prior to an offer of

6 employment;

7 ‘‘(C) except as described in section

8 274A(d)(3)(B), to use the verification system

9 for a current employee after the first 3 days of

10 employment, or for the reverification of an em11 ployee after the employee has satisfied the proc12 ess described in section 274A(d); or

13 ‘‘(D) to require an individual to make an

14 inquiry under the self-verification procedures

15 established in section 274A(d)(8)(E)(iii).’’.

16 (d) INCREASE IN CIVIL MONEY PENALTIES.—Section

17 274B(g)(2) (8 U.S.C. 1324b(g)(2)) is amended—

18 (1) in subparagraph (B)(iv)—

19 (A) in subclause (I), by striking ‘‘$250 and

20 not more than $2,000’’ and inserting ‘‘$1,000

21 and not more than $4,000’’;

22 (B) in subclause (II), by striking ‘‘$2,000

23 and not more than $5,000’’ and inserting

24 ‘‘$4,000 and not more than $10,000’’;
†

287

S 2611 ES

1 (C) in subclause (III), by striking ‘‘$3,000

2 and not more than $10,000’’ and inserting

3 ‘‘$6,000 and not more than $20,000’’; and

4 (D) in subclause (IV), by striking ‘‘$100

5 and not more than $1,000’’ and inserting

6 ‘‘$500 and not more than $5,000’’.

7 (e) INCREASED FUNDING OF INFORMATION CAM8 PAIGN.—Section 274B(l)(3) (8 U.S.C. 1324b(l)(3)) is

9 amended by inserting ‘‘and an additional $40,000,000 for

10 each of fiscal years 2007 through 2009’’ before the period

11 at the end.

12 (f) EFFECTIVE DATE.—The amendments made by

13 this section shall take effect on the date that is 180 days

14 after the date of the enactment of this Act and shall apply

15 to violations occurring on or after such date.

16 TITLE IV—NONIMMIGRANT AND

17 IMMIGRANT VISA REFORM

18 Subtitle A—Temporary Guest

19 Workers

20 SEC. 401. IMMIGRATION IMPACT STUDY.

21 (a) EFFECTIVE DATE.—Any regulation that would

22 increase the number of aliens who are eligible for legal

23 status may not take effect before 90 days after the date

24 on which the Director of the Bureau of the Census sub25 mits a report to Congress under subsection (c).
†

288

S 2611 ES

1 (b) STUDY.—The Director of the Bureau of the Cen2 sus, jointly with the Secretary, the Secretary of Agri3 culture, the Secretary of Education, the Secretary of En4 ergy, the Secretary of Health and Human Services, the

5 Secretary of Housing and Urban Development, the Sec6 retary of the Interior, the Secretary of Labor, the Sec7 retary of Transportation, the Secretary of the Treasury,

8 the Attorney General, and the Administrator of the Envi9 ronmental Protection Agency, shall undertake a study ex10 amining the impacts of the current and proposed annual

11 grants of legal status, including immigrant and non12 immigrant status, along with the current level of illegal

13 immigration, on the infrastructure of and quality of life

14 in the United States.

15 (c) REPORT.—Not later than 90 days after the date

16 of the enactment of this Act, the Director of the Bureau

17 of the Census shall submit to Congress a report on the

18 findings of the study required by subsection (b), including

19 the following information:

20 (1) An estimate of the total legal and illegal im21 migrant populations of the United States, as they

22 relate to the total population.

23 (2) The projected impact of legal and illegal im24 migration on the size of the population of the United

25 States over the next 50 years, which regions of the
†

289

S 2611 ES

1 country are likely to experience the largest increases,

2 which small towns and rural counties are likely to

3 lose their character as a result of such growth, and

4 how the proposed regulations would affect these pro5 jections.

6 (3) The impact of the current and projected

7 foreign-born populations on the natural environment,

8 including the consumption of nonrenewable re9 sources, waste production and disposal, the emission

10 of pollutants, and the loss of habitat and productive

11 farmland, an estimate of the public expenditures re12 quired to maintain current standards in each of

13 these areas, the degree to which current standards

14 will deteriorate if such expenditures are not forth15 coming, and the additional effects the proposed reg16 ulations would have.

17 (4) The impact of the current and projected

18 foreign-born populations on employment and wage

19 rates, particularly in industries such as agriculture

20 and services in which the foreign born are con21 centrated, an estimate of the associated public costs,

22 and the additional effects the proposed regulations

23 would have.

24 (5) The impact of the current and projected

25 foreign-born populations on the need for additions
†

290

S 2611 ES

1 and improvements to the transportation infrastruc2 ture of the United States, an estimate of the public

3 expenditures required to meet this need, the impact

4 on Americans’ mobility if such expenditures are not

5 forthcoming, and the additional effect the proposed

6 regulations would have.

7 (6) The impact of the current and projected

8 foreign-born populations on enrollment, class size,

9 teacher-student ratios, and the quality of education

10 in public schools, an estimate of the public expendi11 tures required to maintain current median stand12 ards, the degree to those standards will deteriorate

13 if such expenditures are not forthcoming, and the

14 additional effect the proposed regulations would

15 have.

16 (7) The impact of the current and projected

17 foreign-born populations on home ownership rates,

18 housing prices, and the demand for low-income and

19 subsidized housing, the public expenditures required

20 to maintain current median standards in these

21 areas, the degree to which those standards will dete22 riorate if such expenditures are not forthcoming, and

23 the additional effect the proposed regulations would

24 have.
†

291

S 2611 ES

1 (8) The impact of the current and projected

2 foreign-born populations on access to quality health

3 care and on the cost of health care and health insur4 ance, an estimate of the public expenditures required

5 to maintain current median standards, the degree to

6 which those standards will deteriorate if such ex7 penditures are not forthcoming, and the additional

8 effect the proposed regulations would have.

9 (9) The impact of the current and projected

10 foreign-born populations on the criminal justice sys11 tem in the United States, an estimate of the associ12 ated public costs, and the additional effect the pro13 posed regulations would have.

14 SEC. 402. NONIMMIGRANT TEMPORARY WORKER.

15 (a) TEMPORARY WORKER CATEGORY.—Section

16 101(a)(15)(H) (8 U.S.C. 1101(a)(15)(H)) is amended to

17 read as follows:

18 ‘‘(H) an alien—

19 ‘‘(i)(b) subject to section 212(j)(2)—

20 ‘‘(aa) who is coming temporarily

21 to the United States to perform serv22 ices (other than services described in

23 clause (ii)(a) or subparagraph (O) or

24 (P)) in a specialty occupation de-
†

292

S 2611 ES

1 scribed in section 214(i)(1) or as a

2 fashion model;

3 ‘‘(bb) who meets the require4 ments for the occupation specified in

5 section 214(i)(2) or, in the case of a

6 fashion model, is of distinguished

7 merit and ability; and

8 ‘‘(cc) with respect to whom the

9 Secretary of Labor determines and

10 certifies to the Secretary of Homeland

11 Security that the intending employer

12 has filed an application with the Sec13 retary in accordance with section

14 212(n)(1);

15 ‘‘(b1)(aa) who is entitled to enter the

16 United States under the provisions of an

17 agreement listed in section 214(g)(8)(A);

18 ‘‘(bb) who is engaged in a specialty

19 occupation described in section 214(i)(3);

20 and

21 ‘‘(cc) with respect to whom the Sec22 retary of Labor determines and certifies to

23 the Secretary of Homeland Security and

24 the Secretary of State that the intending

25 employer has filed an attestation with the
†

293

S 2611 ES

1 Secretary of Labor in accordance with sec2 tion 212(t)(1); or

3 ‘‘(c)(aa) who is coming temporarily to

4 the United States to perform services as a

5 registered nurse;

6 ‘‘(bb) who meets the qualifications de7 scribed in section 212(m)(1); and

8 ‘‘(cc) with respect to whom the Sec9 retary of Labor determines and certifies to

10 the Secretary of Homeland Security that

11 an unexpired attestation is on file and in

12 effect under section 212(m)(2) for the fa13 cility (as defined in section 212(m)(6)) for

14 which the alien will perform the services;

15 or

16 ‘‘(ii)(a) who—

17 ‘‘(aa) has a residence in a foreign

18 country which the alien has no inten19 tion of abandoning; and

20 ‘‘(bb) is coming temporarily to

21 the United States to perform agricul22 tural labor or services (as defined by

23 the Secretary of Labor), including ag24 ricultural labor (as defined in section

25 3121(g) of the Internal Revenue Code
†

294

S 2611 ES

1 of 1986), agriculture (as defined in

2 section 3(f) of the Fair Labor Stand3 ards Act of 1938 (29 U.S.C. 203(f))),

4 and the pressing of apples for cider on

5 a farm, of a temporary or seasonal

6 nature;

7 ‘‘(b) who—

8 ‘‘(aa) has a residence in a foreign

9 country which the alien has no inten10 tion of abandoning;

11 ‘‘(bb) is coming temporarily to

12 the United States to perform non13 agricultural work or services of a tem14 porary or seasonal nature (if unem15 ployed persons capable of performing

16 such work or services cannot be found

17 in the United States), excluding med18 ical school graduates coming to the

19 United States to perform services as

20 members of the medical profession; or

21 ‘‘(c) who—

22 ‘‘(aa) has a residence in a foreign

23 country which the alien has no inten24 tion of abandoning;
†

295

S 2611 ES

1 ‘‘(bb) is coming temporarily to

2 the United States to perform tem3 porary labor or services other than the

4 labor or services described in clause

5 (i)(b), (i)(c), (ii)(a), or (iii), or sub6 paragraph (L), (O), (P), or (R) (if

7 unemployed persons capable of per8 forming such labor or services cannot

9 be found in the United States); and

10 ‘‘(cc) meets the requirements of

11 section 218A, including the filing of a

12 petition under such section on behalf

13 of the alien;

14 ‘‘(iii) who—

15 ‘‘(a) has a residence in a foreign

16 country which the alien has no inten17 tion of abandoning; and

18 ‘‘(b) is coming temporarily to the

19 United States as a trainee (other than

20 to receive graduate medical education

21 or training) in a training program

22 that is not designed primarily to pro23 vide productive employment; or

24 ‘‘(iv) who—
†

296

S 2611 ES

1 ‘‘(a) is the spouse or a minor

2 child of an alien described in this sub3 paragraph; and

4 ‘‘(b) is accompanying or following

5 to join such alien.’’.

6 (b) EFFECTIVE DATE AND APPLICATION.—The

7 amendment made by subsection (a) shall take effect on

8 the date that is 18 months after the date that not less

9 than $400,000,000 have been appropriated and made

10 available to the Secretary to implement the Electronic

11 Employment Verification System established under

12 274A(d) of the Immigration and Nationality Act, as

13 amended by section 301(a), with respect to aliens, who,

14 on such effective date, are outside of the United States.

15 SEC. 403. ADMISSION OF NONIMMIGRANT TEMPORARY

16 GUEST WORKERS.

17 (a) TEMPORARY GUEST WORKERS.—

18 (1) IN GENERAL.—Chapter 2 of title II (8

19 U.S.C. 1181 et seq.) is amended by inserting after

20 section 218 the following:

21 ‘‘SEC. 218A. ADMISSION OF H–2C NONIMMIGRANTS.

22 ‘‘(a) AUTHORIZATION.—The Secretary of State may

23 grant a temporary visa to an H–2C nonimmigrant who

24 demonstrates an intent to perform labor or services in the

25 United States (other than the labor or services described
†

297

S 2611 ES

1 in clause (i)(b) or (ii)(a) of section 101(a)(15)(H) or sub2 paragraph (L), (O), (P), or (R)) of section 101(a)(15).

3 ‘‘(b) REQUIREMENTS FOR ADMISSION.—An alien

4 shall be eligible for H–2C nonimmigrant status if the alien

5 meets the following requirements:

6 ‘‘(1) ELIGIBILITY TO WORK.—The alien shall

7 establish that the alien is capable of performing the

8 labor or services required for an occupation under

9 section 101(a)(15)(H)(ii)(c).

10 ‘‘(2) EVIDENCE OF EMPLOYMENT.—The alien

11 shall establish that the alien has received a job offer

12 from an employer who has complied with the re13 quirements of 218B.

14 ‘‘(3) FEE.—The alien shall pay a $500 visa

15 issuance fee in addition to the cost of processing and

16 adjudicating such application. Nothing in this para17 graph shall be construed to affect consular proce18 dures for charging reciprocal fees.

19 ‘‘(4) MEDICAL EXAMINATION.—The alien shall

20 undergo a medical examination (including a deter21 mination of immunization status), at the alien’s ex22 pense, that conforms to generally accepted standards

23 of medical practice.

24 ‘‘(5) APPLICATION CONTENT AND WAIVER.—
†

298

S 2611 ES

1 ‘‘(A) APPLICATION FORM.—The alien shall

2 submit to the Secretary a completed applica3 tion, on a form designed by the Secretary of

4 Homeland Security, including proof of evidence

5 of the requirements under paragraphs (1) and

6 (2).

7 ‘‘(B) CONTENT.—In addition to any other

8 information that the Secretary requires to de9 termine an alien’s eligibility for H–2C non10 immigrant status, the Secretary shall require an

11 alien to provide information concerning the

12 alien’s—

13 ‘‘(i) physical and mental health;

14 ‘‘(ii) criminal history and gang mem15 bership;

16 ‘‘(iii) immigration history; and

17 ‘‘(iv) involvement with groups or indi18 viduals that have engaged in terrorism,

19 genocide, persecution, or who seek the

20 overthrow of the United States Govern21 ment.

22 ‘‘(C) KNOWLEDGE.—The alien shall in23 clude with the application submitted under this

24 paragraph a signed certification in which the

25 alien certifies that—
†

299

S 2611 ES

1 ‘‘(i) the alien has read and under2 stands all of the questions and statements

3 on the application form;

4 ‘‘(ii) the alien certifies under penalty

5 of perjury under the laws of the United

6 States that the application, and any evi7 dence submitted with it, are all true and

8 correct; and

9 ‘‘(iii) the applicant authorizes the re10 lease of any information contained in the

11 application and any attached evidence for

12 law enforcement purposes.

13 ‘‘(c) GROUNDS OF INADMISSIBILITY.—

14 ‘‘(1) IN GENERAL.—In determining an alien’s

15 admissibility as an H–2C nonimmigrant—

16 ‘‘(A) paragraphs (5), (6)(A), (7), (9)(B),

17 and (9)(C) of section 212(a) may be waived for

18 conduct that occurred before the effective date

19 of the Comprehensive Immigration Reform Act

20 of 2006;

21 ‘‘(B) the Secretary of Homeland Security

22 may not waive the application of—

23 ‘‘(i) subparagraph (A), (B), (C), (E),

24 (G), (H), or (I) of section 212(a)(2) (relat25 ing to criminals);
†

300

S 2611 ES

1 ‘‘(ii) section 212(a)(3) (relating to se2 curity and related grounds); or

3 ‘‘(iii) subparagraph (A), (C) or (D) of

4 section 212(a)(10) (relating to polygamists

5 and child abductors); and

6 ‘‘(C) for conduct that occurred before the

7 date of the enactment of the Comprehensive

8 Immigration Reform Act of 2006, the Secretary

9 of Homeland Security may waive the applica10 tion of any provision of section 212(a) not list11 ed in subparagraph (B) on behalf of an indi12 vidual alien—

13 ‘‘(i) for humanitarian purposes;

14 ‘‘(ii) to ensure family unity; or

15 ‘‘(iii) if such a waiver is otherwise in

16 the public interest.

17 ‘‘(2) RENEWAL OF AUTHORIZED ADMISSION

18 AND SUBSEQUENT ADMISSIONS.—An alien seeking

19 renewal of authorized admission or subsequent ad20 mission as an H–2C nonimmigrant shall establish

21 that the alien is not inadmissible under section

22 212(a).

23 ‘‘(d) BACKGROUND CHECKS.—The Secretary of

24 Homeland Security shall not admit, and the Secretary of

25 State shall not issue a visa to, an alien seeking H–2C non-
†

301

S 2611 ES

1 immigrant status unless all appropriate background

2 checks have been completed.

3 ‘‘(e) INELIGIBLE TO CHANGE NONIMMIGRANT CLAS4 SIFICATION.—An H–2C nonimmigrant may not change

5 nonimmigrant classification under section 248.

6 ‘‘(f) PERIOD OF AUTHORIZED ADMISSION.—

7 ‘‘(1) AUTHORIZED PERIOD AND RENEWAL.—

8 The initial period of authorized admission as an H–

9 2C nonimmigrant shall be 3 years, and the alien

10 may seek 1 extension for an additional 3-year pe11 riod.

12 ‘‘(2) INTERNATIONAL COMMUTERS.—An alien

13 who resides outside the United States and commutes

14 into the United States to work as an H–2C non15 immigrant, is not subject to the time limitations

16 under paragraph (1).

17 ‘‘(3) LOSS OF EMPLOYMENT.—

18 ‘‘(A) IN GENERAL.—

19 ‘‘(i) PERIOD OF UNEMPLOYMENT.—

20 Subject to clause (ii) and subsection (c),

21 the period of authorized admission of an

22 H–2C nonimmigrant shall terminate if the

23 alien is unemployed for 60 or more con24 secutive days.
†

302

S 2611 ES

1 ‘‘(ii) EXCEPTION.—The period of au2 thorized admission of an H–2C non3 immigrant shall not terminate if the alien

4 is unemployed for 60 or more consecutive

5 days if such unemployment is caused by—

6 ‘‘(I) a period of physical or men7 tal disability of the alien or the

8 spouse, son, daughter, or parent (as

9 defined in section 101 of the Family

10 and Medical Leave Act of 1993 (29

11 U.S.C. 2611)) of the alien;

12 ‘‘(II) a period of vacation, med13 ical leave, maternity leave, or similar

14 leave from employment authorized by

15 employer policy, State law, or Federal

16 law; or

17 ‘‘(III) any other period of tem18 porary unemployment caused by cir19 cumstances beyond the control of the

20 alien.

21 ‘‘(B) RETURN TO FOREIGN RESIDENCE.—

22 Any alien whose period of authorized admission

23 terminates under subparagraph (A) shall be re24 quired to leave the United States.
†

303

S 2611 ES

1 ‘‘(C) PERIOD OF VISA VALIDITY.—Any

2 alien, whose period of authorized admission ter3 minates under subparagraph (A), who leaves

4 the United States under subparagraph (B),

5 may reenter the United States as an H–2C

6 nonimmigrant to work for an employer, if the

7 alien has complied with the requirements of

8 subsection (b). The Secretary may, in the Sec9 retary’s sole and unreviewable discretion, reau10 thorize such alien for admission as an H–2C

11 nonimmigrant without requiring the alien’s de12 parture from the United States.

13 ‘‘(4) VISITS OUTSIDE UNITED STATES.—

14 ‘‘(A) IN GENERAL.—Under regulations es15 tablished by the Secretary of Homeland Secu16 rity, an H–2C nonimmigrant—

17 ‘‘(i) may travel outside of the United

18 States; and

19 ‘‘(ii) may be readmitted without hav20 ing to obtain a new visa if the period of

21 authorized admission has not expired.

22 ‘‘(B) EFFECT ON PERIOD OF AUTHORIZED

23 ADMISSION.—Time spent outside the United

24 States under subparagraph (A) shall not extend
†

304

S 2611 ES

1 the period of authorized admission in the

2 United States.

3 ‘‘(5) BARS TO EXTENSION OR ADMISSION.—An

4 alien may not be granted H–2C nonimmigrant sta5 tus, or an extension of such status, if—

6 ‘‘(A) the alien has violated any material

7 term or condition of such status granted pre8 viously, including failure to comply with the

9 change of address reporting requirements under

10 section 265;

11 ‘‘(B) the alien is inadmissible as a non12 immigrant; or

13 ‘‘(C) the granting of such status or exten14 sion of such status would allow the alien to ex15 ceed 6 years as an H–2C nonimmigrant, unless

16 the alien has resided and been physically

17 present outside the United States for at least 1

18 year after the expiration of such H–2C non19 immigrant status.

20 ‘‘(g) EVIDENCE OF NONIMMIGRANT STATUS.—Each

21 H–2C nonimmigrant shall be issued documentary evidence

22 of nonimmigrant status, which—

23 ‘‘(1) shall be machine-readable, tamper-resist24 ant, and allow for biometric authentication;
†

305

S 2611 ES

1 ‘‘(2) shall be designed in consultation with the

2 Forensic Document Laboratory of the Bureau of

3 Immigration and Customs Enforcement;

4 ‘‘(3) shall, during the alien’s authorized period

5 of admission under subsection (f), serve as a valid

6 entry document for the purpose of applying for ad7 mission to the United States—

8 ‘‘(A) instead of a passport and visa if the

9 alien—

10 ‘‘(i) is a national of a foreign territory

11 contiguous to the United States; and

12 ‘‘(ii) is applying for admission at a

13 land border port of entry; and

14 ‘‘(B) in conjunction with a valid passport,

15 if the alien is applying for admission at an air

16 or sea port of entry;

17 ‘‘(4) may be accepted during the period of its

18 validity by an employer as evidence of employment

19 authorization and identity under section

20 274A(b)(1)(B); and

21 ‘‘(5) shall be issued to the H–2C nonimmigrant

22 by the Secretary of Homeland Security promptly

23 after the final adjudication of such alien’s applica24 tion for H–2C nonimmigrant status.
†

306

S 2611 ES

1 ‘‘(h) PENALTY FOR FAILURE TO DEPART.—If an H–

2 2C nonimmigrant fails to depart the United States before

3 the date which is 10 days after the date that the alien’s

4 authorized period of admission as an H–2C nonimmigrant

5 terminates, the H–2C nonimmigrant may not apply for

6 or receive any immigration relief or benefit under this Act

7 or any other law, except for relief under sections 208 and

8 241(b)(3) and relief under the Convention Against Tor9 ture and Other Cruel, Inhuman or Degrading Treatment

10 or Punishment, for an alien who indicates either an inten11 tion to apply for asylum under section 208 or a fear of

12 persecution or torture.

13 ‘‘(i) PENALTY FOR ILLEGAL ENTRY OR OVERSTAY.—

14 Any alien who enters, attempts to enter, or crosses the

15 border after the date of the enactment of this section, and

16 is physically present in the United States after such date

17 in violation of this Act or of any other Federal law, may

18 not receive, for a period of 10 years—

19 ‘‘(1) any relief under section 240A(a),

20 240A(b)(1), or 240B; or

21 ‘‘(2) nonimmigrant status under section

22 101(a)(15) (except subparagraphs (T) and (U)).

23 ‘‘(j) PORTABILITY.—A nonimmigrant alien described

24 in this section, who was previously issued a visa or other-
†

307

S 2611 ES

1 wise provided H–2C nonimmigrant status, may accept a

2 new offer of employment with a subsequent employer, if—

3 ‘‘(1) the employer complies with section 218B;

4 and

5 ‘‘(2) the alien, after lawful admission to the

6 United States, did not work without authorization.

7 ‘‘(k) CHANGE OF ADDRESS.—An H–2C non8 immigrant shall comply with the change of address report9 ing requirements under section 265 through either elec10 tronic or paper notification.

11 ‘‘(l) COLLECTION OF FEES.—All fees collected under

12 this section shall be deposited in the Treasury in accord13 ance with section 286(c).

14 ‘‘(m) ISSUANCE OF H–4 NONIMMIGRANT VISAS FOR

15 SPOUSE AND CHILDREN.—

16 ‘‘(1) IN GENERAL.—The alien spouse and chil17 dren of an H–2C nonimmigrant (referred to in this

18 section as ‘dependent aliens’) who are accompanying

19 or following to join the H–2C nonimmigrant may be

20 issued nonimmigrant visas under section

21 101(a)(15)(H)(iv).

22 ‘‘(2) REQUIREMENTS FOR ADMISSION.—A de23 pendent alien is eligible for nonimmigrant status

24 under 101(a)(15)(H)(iv) if the dependent alien

25 meets the following requirements:
†

308

S 2611 ES

1 ‘‘(A) ELIGIBILITY.—The dependent alien is

2 admissible as a nonimmigrant and does not fall

3 within a class of aliens ineligible for H–4A non4 immigrant status listed under subsection (c).

5 ‘‘(B) MEDICAL EXAMINATION.—Before a

6 nonimmigrant visa is issued to a dependent

7 alien under this subsection, the dependent alien

8 shall submit to a medical examination (includ9 ing a determination of immunization status) at

10 the alien’s expense, that conforms to generally

11 accepted standards of medical practice.

12 ‘‘(C) BACKGROUND CHECKS.—Before a

13 nonimmigrant visa is issued to a dependent

14 alien under this section, the consular officer

15 shall conduct such background checks as the

16 Secretary of State, in consultation with the Sec17 retary of Homeland Security, considers appro18 priate.

19 ‘‘(n) DEFINITIONS.—In this section and sections

20 218B, 218C, and 218D:

21 ‘‘(1) AGGRIEVED PERSON.— term ‘aggrieved

22 person’ means a person adversely affected by an al23 leged violation of this section, including—
†

309

S 2611 ES

1 ‘‘(A) a worker whose job, wages, or work2 ing conditions are adversely affected by the vio3 lation; and

4 ‘‘(B) a representative for workers whose

5 jobs, wages, or working conditions are adversely

6 affected by the violation who brings a complaint

7 on behalf of such worker.

8 ‘‘(2) AREA OF EMPLOYMENT.—The terms ‘area

9 of employment’ and ‘area of intended employment’

10 mean the area within normal commuting distance of

11 the worksite or physical location at which the work

12 of the temporary worker is or will be performed. If

13 such worksite or location is within a Metropolitan

14 Statistical Area, any place within such area is

15 deemed to be within the area of employment.

16 ‘‘(3) ELIGIBLE INDIVIDUAL.—The term ‘eligible

17 individual’ means, with respect to employment, an

18 individual who is not an unauthorized alien (as de19 fined in section 274A) with respect to that employ20 ment.

21 ‘‘(4) EMPLOY; EMPLOYEE; EMPLOYER.—The

22 terms ‘employ’, ‘employee’, and ‘employer’ have the

23 meanings given such terms in section 3 of the Fair

24 Labor Standards Act of 1938 (29 U.S.C. 203).
†

310

S 2611 ES

1 ‘‘(5) FOREIGN LABOR CONTRACTOR.—The term

2 ‘foreign labor contractor’ means any person who for

3 any compensation or other valuable consideration

4 paid or promised to be paid, performs any foreign

5 labor contracting activity.

6 ‘‘(6) FOREIGN LABOR CONTRACTING ACTIV7 ITY.—The term ‘foreign labor contracting activity’

8 means recruiting, soliciting, hiring, employing, or

9 furnishing, an individual who resides outside of the

10 United States for employment in the United States

11 as a nonimmigrant alien described in section

12 101(a)(15)(H)(ii)(c).

13 ‘‘(7) H–2C NONIMMIGRANT.—The term ‘H–2C

14 nonimmigrant’ means a nonimmigrant described in

15 section 101(a)(15)(H)(ii)(c).

16 ‘‘(8) SEPARATION FROM EMPLOYMENT.—The

17 term ‘separation from employment’ means the work18 er’s loss of employment, other than through a dis19 charge for inadequate performance, violation of

20 workplace rules, cause, voluntary departure, vol21 untary retirement, or the expiration of a grant or

22 contract. The term does not include any situation in

23 which the worker is offered, as an alternative to

24 such loss of employment, a similar employment op25 portunity with the same employer at equivalent or
†

311

S 2611 ES

1 higher compensation and benefits than the position

2 from which the employee was discharged, regardless

3 of whether the employee accepts the offer. Nothing

4 in this paragraph shall limit an employee’s rights

5 under a collective bargaining agreement or other em6 ployment contract.

7 ‘‘(9) UNITED STATES WORKER.—The term

8 ‘United States worker’ means an employee who is—

9 ‘‘(A) a citizen or national of the United

10 States; or

11 ‘‘(B) an alien who is—

12 ‘‘(i) lawfully admitted for permanent

13 residence;

14 ‘‘(ii) admitted as a refugee under sec15 tion 207;

16 ‘‘(iii) granted asylum under section

17 208; or

18 ‘‘(iv) otherwise authorized, under this

19 Act or by the Secretary of Homeland Secu20 rity, to be employed in the United States.’’.

21 (2) CLERICAL AMENDMENT.—The table of con22 tents for the Immigration and Nationality Act (8

23 U.S.C. 1101 et seq.) is amended by inserting after

24 the item relating to section 218 the following:

‘‘Sec. 218A. Admission of temporary H–2C workers.’’.
†

312

S 2611 ES

1 SEC. 404. EMPLOYER OBLIGATIONS.

2 (a) IN GENERAL.—Title II (8 U.S.C. 1201 et seq.)

3 is amended by inserting after section 218A, as added by

4 section 403, the following:

5 ‘‘SEC. 218B. EMPLOYER OBLIGATIONS.

6 ‘‘(a) GENERAL REQUIREMENTS.—Each employer

7 who employs an H–2C nonimmigrant shall—

8 ‘‘(1) file a petition in accordance with sub9 section (b); and

10 ‘‘(2) pay the appropriate fee, as determined by

11 the Secretary of Labor.

12 ‘‘(b) REQUIRED PROCEDURE.—Except where the

13 Secretary of Labor has determined that there is a shortage

14 of United States workers in the occupation and area of

15 intended employment to which the H–2C nonimmigrant

16 is sought—

17 ‘‘(1) EFFORTS TO RECRUIT UNITED STATES

18 WORKERS.—During the period beginning not later

19 than 90 days prior to the date on which a petition

20 is filed under subsection (a)(1), and ending on the

21 date that is 14 days prior to the date on which the

22 petition is filed, the employer involved shall take the

23 following steps to recruit United States workers for

24 the position for which the H–2C nonimmigrant is

25 sought under the petition:
†

313

S 2611 ES

1 ‘‘(A) Submit a copy of the job opportunity,

2 including a description of the wages and other

3 terms and conditions of employment and the

4 minimum education, training, experience and

5 other requirements of the job, to the State Em6 ployment Service Agency that serves the area of

7 employment in the State in which the employer

8 is located.

9 ‘‘(B) Authorize the State Employment

10 Service Agency to post the job opportunity on

11 the Internet through the website for America’s

12 Job Bank, with local job banks, and with unem13 ployment agencies and other labor referral and

14 recruitment sources pertinent to the job in15 volved.

16 ‘‘(C) Authorize the State Employment

17 Service Agency to notify labor organizations in

18 the State in which the job is located, and if ap19 plicable, the office of the local union which rep20 resents the employees in the same or substan21 tially equivalent job classification of the job op22 portunity.

23 ‘‘(D) Post the availability of the job oppor24 tunity for which the employer is seeking a
†

314

S 2611 ES

1 worker in conspicuous locations at the place of

2 employment for all employees to see.

3 ‘‘(2) EFFORTS TO EMPLOY UNITED STATES

4 WORKERS.—An employer that seeks to employ an

5 H–2C nonimmigrant shall—

6 ‘‘(A) first offer the job to any eligible

7 United States worker who applies, is qualified

8 for the job and is available at the time of need,

9 notwithstanding any other valid employment

10 criteria.

11 ‘‘(c) PETITION.—A petition to hire an H–2C non12 immigrant under this section shall include an attestation

13 by the employer of the following:

14 ‘‘(1) PROTECTION OF UNITED STATES WORK15 ERS.—The employment of an H–2C

16 nonimmigrant—

17 ‘‘(A) will not adversely affect the wages

18 and working conditions of workers in the

19 United States similarly employed; and

20 ‘‘(B) did not and will not cause the separa21 tion from employment of a United States work22 er employed by the employer within the 180-day

23 period beginning 90 days before the date on

24 which the petition is filed.

25 ‘‘(2) WAGES.—
†

315

S 2611 ES

1 ‘‘(A) IN GENERAL.—The H–2C non2 immigrant will be paid not less than the greater

3 of—

4 ‘‘(i) the actual wage level paid by the

5 employer to all other individuals with simi6 lar experience and qualifications for the

7 specific employment in question; or

8 ‘‘(ii) the prevailing wage level for the

9 occupational classification in the area of

10 employment, taking into account experi11 ence and skill levels of employees.

12 ‘‘(B) CALCULATION.—The wage levels

13 under subparagraph (A) shall be calculated

14 based on the best information available at the

15 time of the filing of the application.

16 ‘‘(C) PREVAILING WAGE LEVEL.—For pur17 poses of subparagraph (A)(ii), the prevailing

18 wage level shall be determined in accordance as

19 follows:

20 ‘‘(i) If the job opportunity is covered

21 by a collective bargaining agreement be22 tween a union and the employer, the pre23 vailing wage shall be the wage rate set

24 forth in the collective bargaining agree25 ment.
†

316

S 2611 ES

1 ‘‘(ii) If the job opportunity is not cov2 ered by such an agreement and it is in an

3 occupation that is covered by a wage deter4 mination under a provision of subchapter

5 IV of chapter 31 of title 40, United States

6 Code, or the Service Contract Act of 1965

7 (41 U.S.C. 351 et seq.), the prevailing

8 wage level shall be the appropriate statu9 tory wage.

10 ‘‘(iii)(I) If the job opportunity is not

11 covered by such an agreement and it is in

12 an occupation that is not covered by a

13 wage determination under a provision of

14 subchapter IV of chapter 31 of title 40,

15 United States Code, or the Service Con16 tract Act of 1965 (41 U.S.C. 351 et seq.),

17 the prevailing wage level shall be based on

18 published wage data for the occupation

19 from the Bureau of Labor Statistics, in20 cluding the Occupational Employment Sta21 tistics survey, Current Employment Statis22 tics data, National Compensation Survey,

23 and Occupational Employment Projections

24 program. If the Bureau of Labor Statistics

25 does not have wage data applicable to such
†

317

S 2611 ES

1 occupation, the employer may base the pre2 vailing wage level on another wage survey

3 approved by the Secretary of Labor.

4 ‘‘(II) The Secretary shall promulgate

5 regulations applicable to approval of such

6 other wage surveys that require, among

7 other things, that the Bureau of Labor

8 Statistics determine such surveys are sta9 tistically viable.

10 ‘‘(3) WORKING CONDITIONS.—All workers in

11 the occupation at the place of employment at which

12 the H–2C nonimmigrant will be employed will be

13 provided the working conditions and benefits that

14 are normal to workers similarly employed in the area

15 of intended employment.

16 ‘‘(4) LABOR DISPUTE.—There is not a strike,

17 lockout, or work stoppage in the course of a labor

18 dispute in the occupation at the place of employment

19 at which the H–2C nonimmigrant will be employed.

20 If such strike, lockout, or work stoppage occurs fol21 lowing submission of the petition, the employer will

22 provide notification in accordance with regulations

23 promulgated by the Secretary of Labor.

24 ‘‘(5) PROVISION OF INSURANCE.—If the posi25 tion for which the H–2C nonimmigrant is sought is
†

318

S 2611 ES

1 not covered by the State workers’ compensation law,

2 the employer will provide, at no cost to the H–2C

3 nonimmigrant, insurance covering injury and disease

4 arising out of, and in the course of, the worker’s em5 ployment, which will provide benefits at least equal

6 to those provided under the State workers’ com7 pensation law for comparable employment.

8 ‘‘(6) NOTICE TO EMPLOYEES.—

9 ‘‘(A) IN GENERAL.—The employer has pro10 vided notice of the filing of the petition to the

11 bargaining representative of the employer’s em12 ployees in the occupational classification and

13 area of employment for which the H–2C non14 immigrant is sought.

15 ‘‘(B) NO BARGAINING REPRESENTATIVE.—

16 If there is no such bargaining representative,

17 the employer has—

18 ‘‘(i) posted a notice of the filing of the

19 petition in a conspicuous location at the

20 place or places of employment for which

21 the H–2C nonimmigrant is sought; or

22 ‘‘(ii) electronically disseminated such

23 a notice to the employer’s employees in the

24 occupational classification for which the

25 H–2C nonimmigrant is sought.
†

319

S 2611 ES

1 ‘‘(7) RECRUITMENT.—Except where the Sec2 retary of Labor has determined that there is a

3 shortage of United States workers in the occupation

4 and area of intended employment for which the H–

5 2C nonimmigrant is sought—

6 ‘‘(A) there are not sufficient workers who

7 are able, willing, and qualified, and who will be

8 available at the time and place needed, to per9 form the labor or services involved in the peti10 tion; and

11 ‘‘(B) good faith efforts have been taken to

12 recruit United States workers, in accordance

13 with regulations promulgated by the Secretary

14 of Labor, which efforts included—

15 ‘‘(i) the completion of recruitment

16 during the period beginning on the date

17 that is 90 days before the date on which

18 the petition was filed with the Department

19 of Homeland Security and ending on the

20 date that is 14 days before such filing

21 date; and

22 ‘‘(ii) the actual wage paid by the em23 ployer for the occupation in the areas of

24 intended employment was used in con25 ducting recruitment.
†

320

S 2611 ES

1 ‘‘(8) INELIGIBILITY.—The employer is not cur2 rently ineligible from using the H–2C nonimmigrant

3 program described in this section.

4 ‘‘(9) BONAFIDE OFFER OF EMPLOYMENT.—The

5 job for which the H–2C nonimmigrant is sought is

6 a bona fide job—

7 ‘‘(A) for which the employer needs labor or

8 services;

9 ‘‘(B) which has been and is clearly open to

10 any United States worker; and

11 ‘‘(C) for which the employer will be able to

12 place the H–2C nonimmigrant on the payroll.

13 ‘‘(10) PUBLIC AVAILABILITY AND RECORDS RE14 TENTION.—A copy of each petition filed under this

15 section and documentation supporting each attesta16 tion, in accordance with regulations promulgated by

17 the Secretary of Labor, will—

18 ‘‘(A) be provided to every H–2C non19 immigrant employed under the petition;

20 ‘‘(B) be made available for public examina21 tion at the employer’s place of business or work

22 site;

23 ‘‘(C) be made available to the Secretary of

24 Labor during any audit; and
†

321

S 2611 ES

1 ‘‘(D) remain available for examination for

2 5 years after the date on which the petition is

3 filed.

4 ‘‘(11) NOTIFICATION UPON SEPARATION FROM

5 OR TRANSFER OF EMPLOYMENT.—The employer will

6 notify the Secretary of Labor and the Secretary of

7 Homeland Security of an H–2C nonimmigrant’s sep8 aration from employment or transfer to another em9 ployer not more than 3 business days after the date

10 of such separation or transfer, in accordance with

11 regulations promulgated by the Secretary of Home12 land Security.

13 ‘‘(12) ACTUAL NEED FOR LABOR OR SERV14 ICES.—The petition was filed not more than 60 days

15 before the date on which the employer needed labor

16 or services for which the H–2C nonimmigrant is

17 sought.

18 ‘‘(d) AUDIT OF ATTESTATIONS.—

19 ‘‘(1) REFERRALS BY SECRETARY OF HOMELAND

20 SECURITY.—The Secretary of Homeland Security

21 shall refer all approved petitions for H–2C non22 immigrants to the Secretary of Labor for potential

23 audit.

24 ‘‘(2) AUDITS AUTHORIZED.—The Secretary of

25 Labor may audit any approved petition referred pur-
†

322

S 2611 ES

1 suant to paragraph (1), in accordance with regula2 tions promulgated by the Secretary of Labor.

3 ‘‘(e) INELIGIBLE EMPLOYERS.—

4 ‘‘(1) IN GENERAL.—The Secretary of Homeland

5 Security shall not approve an employer’s petitions,

6 applications, certifications, or attestations under any

7 immigrant or nonimmigrant program if the Sec8 retary of Labor determines, after notice and an op9 portunity for a hearing, that the employer submit10 ting such documents—

11 ‘‘(A) has, with respect to the attestations

12 required under subsection (b)—

13 ‘‘(i) misrepresented a material fact;

14 ‘‘(ii) made a fraudulent statement; or

15 ‘‘(iii) failed to comply with the terms

16 of such attestations; or

17 ‘‘(B) failed to cooperate in the audit proc18 ess in accordance with regulations promulgated

19 by the Secretary of Labor.

20 ‘‘(2) LENGTH OF INELIGIBILITY.—An employer

21 described in paragraph (1) shall be ineligible to par22 ticipate in the labor certification programs of the

23 Secretary of Labor for not less than the time period

24 determined by the Secretary, not to exceed 3 years.
†

323

S 2611 ES

1 ‘‘(3) EMPLOYERS IN HIGH UNEMPLOYMENT

2 AREAS.—Beginning on the date that is 1 year after

3 the date of the enactment of the Initial Entry, Ad4 justment, and Citizenship Assistance Grant Act of

5 2006, the Secretary of Homeland Security may not

6 approve any employer’s petition under subsection (b)

7 if the work to be performed by the H–2C non8 immigrant is not agriculture based and is located in

9 a metropolitan or micropolitan statistical area (as

10 defined by the Office of Management and Budget)

11 in which the unemployment rate for workers who

12 have not completed any education beyond a high

13 school diploma during the most recently completed

14 6-month period averaged more than 9.0 percent.

15 ‘‘(f) REGULATION OF FOREIGN LABOR CONTRAC16 TORS.—

17 ‘‘(1) COVERAGE.—Notwithstanding any other

18 provision of law, an H–2C nonimmigrant may not be

19 treated as an independent contractor.

20 ‘‘(2) APPLICABILITY OF LAWS.—An H–2C non21 immigrant shall not be denied any right or any rem22 edy under Federal, State, or local labor or employ23 ment law that would be applicable to a United

24 States worker employed in a similar position with
†

324

S 2611 ES

1 the employer because of the alien’s status as a non2 immigrant worker.

3 ‘‘(3) TAX RESPONSIBILITIES.—With respect to

4 each employed H–2C nonimmigrant, an employer

5 shall comply with all applicable Federal, State, and

6 local tax and revenue laws.

7 ‘‘(g) WHISTLEBLOWER PROTECTION.—It shall be un8 lawful for an employer or a labor contractor of an H–2C

9 nonimmigrant to intimidate, threaten, restrain, coerce, re10 taliate, discharge, or in any other manner, discriminate

11 against an employee or former employee because the em12 ployee or former employee—

13 ‘‘(1) discloses information to the employer or

14 any other person that the employee or former em15 ployee reasonably believes demonstrates a violation

16 of this Act; or

17 ‘‘(2) cooperates or seeks to cooperate in an in18 vestigation or other proceeding concerning compli19 ance with the requirements of this Act.

20 ‘‘(h) LABOR RECRUITERS.—

21 ‘‘(1) IN GENERAL.—Each employer that en22 gages in foreign labor contracting activity and each

23 foreign labor contractor shall ascertain and disclose,

24 to each such worker who is recruited for employment

25 at the time of the worker’s recruitment—
†

325

S 2611 ES

1 ‘‘(A) the place of employment;

2 ‘‘(B) the compensation for the employ3 ment;

4 ‘‘(C) a description of employment activi5 ties;

6 ‘‘(D) the period of employment;

7 ‘‘(E) any other employee benefit to be pro8 vided and any costs to be charged for each ben9 efit;

10 ‘‘(F) any travel or transportation expenses

11 to be assessed;

12 ‘‘(G) the existence of any labor organizing

13 effort, strike, lockout, or other labor dispute at

14 the place of employment;

15 ‘‘(H) the existence of any arrangement

16 with any owner, employer, foreign contractor,

17 or its agent where such person receives a com18 mission from the provision of items or services

19 to workers;

20 ‘‘(I) the extent to which workers will be

21 compensated through workers’ compensation,

22 private insurance, or otherwise for injuries or

23 death, including—

24 ‘‘(i) work related injuries and death

25 during the period of employment;
†

326

S 2611 ES

1 ‘‘(ii) the name of the State workers’

2 compensation insurance carrier or the

3 name of the policyholder of the private in4 surance;

5 ‘‘(iii) the name and the telephone

6 number of each person who must be noti7 fied of an injury or death; and

8 ‘‘(iv) the time period within which

9 such notice must be given;

10 ‘‘(J) any education or training to be pro11 vided or required, including—

12 ‘‘(i) the nature and cost of such train13 ing;

14 ‘‘(ii) the entity that will pay such

15 costs; and

16 ‘‘(iii) whether the training is a condi17 tion of employment, continued employ18 ment, or future employment; and

19 ‘‘(K) a statement, in a form specified by

20 the Secretary of Labor, describing the protec21 tions of this Act for workers recruited abroad.

22 ‘‘(2) FALSE OR MISLEADING INFORMATION.—

23 No foreign labor contractor or employer who en24 gages in foreign labor contracting activity shall

25 knowingly provide material false or misleading infor-
†

327

S 2611 ES

1 mation to any worker concerning any matter re2 quired to be disclosed in paragraph (1).

3 ‘‘(3) LANGUAGES.—The information required to

4 be disclosed under paragraph (1) shall be provided

5 in writing in English or, as necessary and reason6 able, in the language of the worker being recruited.

7 The Secretary of Labor shall make forms available

8 in English, Spanish, and other languages, as nec9 essary, which may be used in providing workers with

10 information required under this section.

11 ‘‘(4) FEES.—A person conducting a foreign

12 labor contracting activity shall not assess any fee to

13 a worker for such foreign labor contracting activity.

14 ‘‘(5) TERMS.—No employer or foreign labor

15 contractor shall, without justification, violate the

16 terms of any agreement made by that contractor or

17 employer regarding employment under this program.

18 ‘‘(6) TRAVEL COSTS.—If the foreign labor con19 tractor or employer charges the employee for trans20 portation such transportation costs shall be reason21 able.

22 ‘‘(7) OTHER WORKER PROTECTIONS.—

23 ‘‘(A) NOTIFICATION.—Not less frequently

24 than once every 2 years, each employer shall

25 notify the Secretary of Labor of the identity of
†

328

S 2611 ES

1 any foreign labor contractor engaged by the em2 ployer in any foreign labor contractor activity

3 for, or on behalf of, the employer.

4 ‘‘(B) REGISTRATION OF FOREIGN LABOR

5 CONTRACTORS.—

6 ‘‘(i) IN GENERAL.—No person shall

7 engage in foreign labor recruiting activity

8 unless such person has a certificate of reg9 istration from the Secretary of Labor

10 specifying the activities that such person is

11 authorized to perform. An employer who

12 retains the services of a foreign labor con13 tractor shall only use those foreign labor

14 contractors who are registered under this

15 subparagraph.

16 ‘‘(ii) ISSUANCE.—The Secretary shall

17 promulgate regulations to establish an effi18 cient electronic process for the investiga19 tion and approval of an application for a

20 certificate of registration of foreign labor

21 contractors not later than 14 days after

22 such application is filed, including—

23 ‘‘(I) requirements under para24 graphs (1), (4), and (5) of section 102

25 of the Migrant and Seasonal Agricul-
†

329

S 2611 ES

1 tural Worker Protection Act (29

2 U.S.C. 1812);

3 ‘‘(II) an expeditious means to up4 date registrations and renew certifi5 cates; and

6 ‘‘(III) any other requirements

7 that the Secretary may prescribe.

8 ‘‘(iii) TERM.—Unless suspended or re9 voked, a certificate under this subpara10 graph shall be valid for 2 years.

11 ‘‘(iv) REFUSAL TO ISSUE; REVOCA12 TION; SUSPENSION.—In accordance with

13 regulations promulgated by the Secretary

14 of Labor, the Secretary may refuse to issue

15 or renew, or may suspend or revoke, a cer16 tificate of registration under this subpara17 graph if—

18 ‘‘(I) the application or holder of

19 the certification has knowingly made a

20 material misrepresentation in the ap21 plication for such certificate;

22 ‘‘(II) the applicant for, or holder

23 of, the certification is not the real

24 party in interest in the application or
†

330

S 2611 ES

1 certificate of registration and the real

2 party in interest—

3 ‘‘(aa) is a person who has

4 been refused issuance or renewal

5 of a certificate;

6 ‘‘(bb) has had a certificate

7 suspended or revoked; or

8 ‘‘(cc) does not qualify for a

9 certificate under this paragraph;

10 or

11 ‘‘(III) the applicant for or holder

12 of the certification has failed to com13 ply with this Act.

14 ‘‘(C) REMEDY FOR VIOLATIONS.—An em15 ployer engaging in foreign labor contracting ac16 tivity and a foreign labor contractor that vio17 lates the provisions of this subsection shall be

18 subject to remedies for foreign labor contractor

19 violations under subsections (h) and (i). If a

20 foreign labor contractor acting as an agent of

21 an employer violates any provision of this sub22 section, the employer shall also be subject to

23 remedies under subsections (h) and (i). An em24 ployer that violates a provision of this sub25 section relating to employer obligations shall be
†

331

S 2611 ES

1 subject to remedies under subsections (h) and

2 (i).

3 ‘‘(D) EMPLOYER NOTIFICATION.—An em4 ployer shall notify the Secretary of Labor if the

5 employer becomes aware of a violation of this

6 subsection by a foreign labor recruiter.

7 ‘‘(E) WRITTEN AGREEMENTS.—A foreign

8 labor contractor may not violate the terms of

9 any written agreements made with an employer

10 relating to any contracting activity or worker

11 protection under this subsection.

12 ‘‘(F) BONDING REQUIREMENT.—The Sec13 retary of Labor may require a foreign labor

14 contractor to post a bond in an amount suffi15 cient to ensure the protection of individuals re16 cruited by the foreign labor contractor. The

17 Secretary may consider the extent to which the

18 foreign labor contractor has sufficient ties to

19 the United States to adequately enforce this

20 subsection.

21 ‘‘(i) ENFORCEMENT.—

22 ‘‘(1) IN GENERAL.—The Secretary of Labor

23 shall promulgate regulations for the receipt, inves24 tigation, and disposition of complaints by an ag25 grieved person respecting a violation of this section.
†

332

S 2611 ES

1 ‘‘(2) FILING DEADLINE.—No investigation or

2 hearing shall be conducted on a complaint con3 cerning a violation under this section unless the

4 complaint was filed not later than 12 months after

5 the date of such violation.

6 ‘‘(3) REASONABLE CAUSE.—The Secretary of

7 Labor shall conduct an investigation under this sub8 section if there is reasonable cause to believe that a

9 violation of this section has occurred. The process

10 established under this subsection shall provide that,

11 not later than 30 days after a complaint is filed, the

12 Secretary shall determine if there is reasonable

13 cause to find such a violation.

14 ‘‘(4) NOTICE AND HEARING.—

15 ‘‘(A) IN GENERAL.—Not later than 60

16 days after the Secretary of Labor makes a de17 termination of reasonable cause under para18 graph (4), the Secretary shall issue a notice to

19 the interested parties and offer an opportunity

20 for a hearing on the complaint, in accordance

21 with section 556 of title 5, United States Code.

22 ‘‘(B) COMPLAINT.—If the Secretary of

23 Labor, after receiving a complaint under this

24 subsection, does not offer the aggrieved party

25 or organization an opportunity for a hearing
†

333

S 2611 ES

1 under subparagraph (A), the Secretary shall no2 tify the aggrieved party or organization of such

3 determination and the aggrieved party or orga4 nization may seek a hearing on the complaint

5 in accordance with such section 556.

6 ‘‘(C) HEARING DEADLINE.—Not later than

7 60 days after the date of a hearing under this

8 paragraph, the Secretary of Labor shall make a

9 finding on the matter in accordance with para10 graph (5).

11 ‘‘(5) ATTORNEYS’ FEES.—A complainant who

12 prevails with respect to a claim under this sub13 section shall be entitled to an award of reasonable

14 attorneys’ fees and costs.

15 ‘‘(6) POWER OF THE SECRETARY.—The Sec16 retary may bring an action in any court of com17 petent jurisdiction—

18 ‘‘(A) to seek remedial action, including in19 junctive relief;

20 ‘‘(B) to recover the damages described in

21 subsection (i); or

22 ‘‘(C) to ensure compliance with terms and

23 conditions described in subsection (g).

24 ‘‘(7) SOLICITOR OF LABOR.—Except as pro25 vided in section 518(a) of title 28, United States
†

334

S 2611 ES

1 Code, the Solicitor of Labor may appear for and rep2 resent the Secretary of Labor in any civil litigation

3 brought under this subsection. All such litigation

4 shall be subject to the direction and control of the

5 Attorney General.

6 ‘‘(8) PROCEDURES IN ADDITION TO OTHER

7 RIGHTS OF EMPLOYEES.—The rights and remedies

8 provided to workers under this section are in addi9 tion to any other contractual or statutory rights and

10 remedies of the workers, and are not intended to

11 alter or affect such rights and remedies.

12 ‘‘(j) PENALTIES.—

13 ‘‘(1) IN GENERAL.—If, after notice and an op14 portunity for a hearing, the Secretary of Labor finds

15 a violation of subsection (b), (e), (f), or (g), the Sec16 retary may impose administrative remedies and pen17 alties, including—

18 ‘‘(A) back wages;

19 ‘‘(B) benefits; and

20 ‘‘(C) civil monetary penalties.

21 ‘‘(2) CIVIL PENALTIES.—The Secretary of

22 Labor may impose, as a civil penalty—

23 ‘‘(A) for a violation of subsection (e) or

24 (f)—
†

335

S 2611 ES

1 ‘‘(i) a fine in an amount not to exceed

2 $2,000 per violation per affected worker;

3 ‘‘(ii) if the violation was willful viola4 tion, a fine in an amount not to exceed

5 $5,000 per violation per affected worker;

6 ‘‘(iii) if the violation was willful and if

7 in the course of such violation a United

8 States worker was harmed, a fine in an

9 amount not to exceed $25,000 per viola10 tion per affected worker; and

11 ‘‘(B) for a violation of subsection (g)—

12 ‘‘(i) a fine in an amount not less than

13 $500 and not more than $4,000 per viola14 tion per affected worker;

15 ‘‘(ii) if the violation was willful, a fine

16 in an amount not less than $2,000 and not

17 more than $5,000 per violation per af18 fected worker; and

19 ‘‘(iii) if the violation was willful and if

20 in the course of such violation a United

21 States worker was harmed, a fine in an

22 amount not less than $6,000 and not more

23 than $35,000 per violation per affected

24 worker.
†

336

S 2611 ES

1 ‘‘(3) USE OF CIVIL PENALTIES.—All penalties

2 collected under this subsection shall be deposited in

3 the Treasury in accordance with section 286(w).

4 ‘‘(4) CRIMINAL PENALTIES.—If a willful and

5 knowing violation of subsection (g) causes extreme

6 physical or financial harm to an individual, the per7 son in violation of such subsection may be impris8 oned for not more than 6 months, fined in an

9 amount not more than $35,000, or both.’’.

10 (b) CLERICAL AMENDMENT.—The table of contents

11 is amended by inserting after the item relating to section

12 218A, as added by section 403, the following:

‘‘Sec. 218B. Employer obligations.’’.

13 SEC. 405. ALIEN EMPLOYMENT MANAGEMENT SYSTEM.

14 (a) IN GENERAL.—Title II (8 U.S.C. 1151 et seq.)

15 is amended by inserting after section 218B, as added by

16 section 404, the following:

17 ‘‘SEC. 218C. ALIEN EMPLOYMENT MANAGEMENT SYSTEM.

18 ‘‘(a) ESTABLISHMENT.—The Secretary of Homeland

19 Security, in consultation with the Secretary of Labor, the

20 Secretary of State, and the Commission of Social Security,

21 shall develop and implement a program (referred to in this

22 section as the ‘alien employment management system’) to

23 manage and track the employment of aliens described in

24 sections 218A and 218D.
†

337

S 2611 ES

1 ‘‘(b) REQUIREMENTS.—The alien employment man2 agement system shall—

3 ‘‘(1) provide employers who seek employees with

4 an opportunity to recruit and advertise employment

5 opportunities available to United States workers be6 fore hiring an H–2C nonimmigrant;

7 ‘‘(2) collect sufficient information from employ8 ers to enable the Secretary of Homeland Security to

9 determine—

10 ‘‘(A) if the nonimmigrant is employed;

11 ‘‘(B) which employers have hired an H–2C

12 nonimmigrant;

13 ‘‘(C) the number of H–2C nonimmigrants

14 that an employer is authorized to hire and is

15 currently employing;

16 ‘‘(D) the occupation, industry, and length

17 of time that an H–2C nonimmigrant has been

18 employed in the United States;

19 ‘‘(3) allow employers to request approval of

20 multiple H–2C nonimmigrant workers; and

21 ‘‘(4) permit employers to submit applications

22 under this section in an electronic form.’’.

23 (b) CLERICAL AMENDMENT.—The table of contents

24 for the Immigration and Nationality Act (8 U.S.C. 1101
†

338

S 2611 ES

1 et seq.) is amended by inserting after the item relating

2 to section 218B, as added by section 404, the following:

‘‘Sec. 218C. Alien employment management system.’’.

3 SEC. 406. RULEMAKING; EFFECTIVE DATE.

4 (a) RULEMAKING.—Not later than 6 months after

5 the date of enactment of this Act, the Secretary of Labor

6 shall promulgate regulations, in accordance with the notice

7 and comment provisions of section 553 of title 5, United

8 States Code, to carry out the provisions of sections 218A,

9 218B, and 218C, as added by this Act.

10 (b) EFFECTIVE DATE.—The amendments made by

11 sections 403, 404, and 405 shall take effect on the date

12 that is 1 year after the date of the enactment of this Act

13 with regard to aliens, who, on such effective date, are in

14 the foreign country where they maintain residence.

15 SEC. 407. RECRUITMENT OF UNITED STATES WORKERS.

16 (a) ELECTRONIC JOB REGISTRY.—The Secretary of

17 Labor shall establish a publicly accessible Web page on

18 the Internet website of the Department of Labor that pro19 vides a single Internet link to each State workforce agen20 cy’s statewide electronic registry of jobs available through21 out the United States to United States workers.

22 (b) RECRUITMENT OF UNITED STATES WORKERS.—

23 (1) POSTING.—An employer shall attest that

24 the employer has posted an employment opportunity

25 at a prevailing wage level (as described in section
†

339

S 2611 ES

1 218B(b)(2)(C) of the Immigration and Nationality

2 Act).

3 (2) RECORDS.—An employer shall maintain

4 records for not less than 1 year after the date on

5 which an H–2C nonimmigrant is hired that describe

6 the reasons for not hiring any of the United States

7 workers who may have applied for such position.

8 (c) OVERSIGHT AND MAINTENANCE OF RECORDS.—

9 The Secretary of Labor shall promulgate regulations re10 garding the maintenance of electronic job registry records

11 for the purpose of audit or investigation.

12 (d) ACCESS TO ELECTRONIC JOB REGISTRY.—The

13 Secretary of Labor shall ensure that job opportunities ad14 vertised on an electronic job registry established under

15 this section are accessible—

16 (1) by the State workforce agencies, which may

17 further disseminate job opportunity information to

18 other interested parties; and

19 (2) through the Internet, for access by workers,

20 employers, labor organizations, and other interested

21 parties.
†

340

S 2611 ES

1 SEC. 408. TEMPORARY GUEST WORKER VISA PROGRAM

2 TASK FORCE.

3 (a) ESTABLISHMENT.—There is established a task

4 force to be known as the ‘‘Temporary Worker Task

5 Force’’ (referred to in this section as the ‘‘Task Force’’).

6 (b) PURPOSES.—The purposes of the Task Force

7 are—

8 (1) to study the impact of the admission of

9 aliens under section 101(a)(15)(ii)(c) on the wages,

10 working conditions, and employment of United

11 States workers; and

12 (2) to make recommendations to the Secretary

13 of Labor regarding the need for an annual numerical

14 limitation on the number of aliens that may be ad15 mitted in any fiscal year under section

16 101(a)(15)(ii)(c).

17 (c) MEMBERSHIP.—

18 (1) IN GENERAL.—The Task Force shall be

19 composed of 10 members, of whom—

20 (A) 1 shall be appointed by the President

21 and shall serve as chairman of the Task Force;

22 (B) 1 shall be appointed by the leader of

23 the minority party in the Senate, in consulta24 tion with the leader of the minority party in the

25 House of Representatives, and shall serve as

26 vice chairman of the Task Force;
†

341

S 2611 ES

1 (C) 2 shall be appointed by the majority

2 leader of the Senate;

3 (D) 2 shall be appointed by the minority

4 leader of the Senate;

5 (E) 2 shall be appointed by the Speaker of

6 the House of Representatives; and

7 (F) 2 shall be appointed by the minority

8 leader of the House of Representatives.

9 (2) DEADLINE FOR APPOINTMENT.—All mem10 bers of the Task Force shall be appointed not later

11 than 6 months after the date of the enactment of

12 this Act.

13 (3) VACANCIES.—Any vacancy in the Task

14 Force shall not affect its powers, but shall be filled

15 in the same manner in which the original appoint16 ment was made.

17 (4) QUORUM.—Six members of the Task Force

18 shall constitute a quorum.

19 (d) QUALIFICATIONS.—

20 (1) IN GENERAL.—Members of the Task Force

21 shall be—

22 (A) individuals with expertise in economics,

23 demography, labor, business, or immigration or

24 other pertinent qualifications or experience; and
†

342

S 2611 ES

1 (B) representative of a broad cross-section

2 of perspectives within the United States, includ3 ing the public and private sectors and aca4 demia.

5 (2) POLITICAL AFFILIATION.—Not more than 5

6 members of the Task Force may be members of the

7 same political party.

8 (3) NONGOVERNMENTAL APPOINTEES.—An in9 dividual appointed to the Task Force may not be an

10 officer or employee of the Federal Government or of

11 any State or local government.

12 (e) MEETINGS.—

13 (1) INITIAL MEETING.—The Task Force shall

14 meet and begin the operations of the Task Force as

15 soon as practicable.

16 (2) SUBSEQUENT MEETINGS.—After its initial

17 meeting, the Task Force shall meet upon the call of

18 the chairman or a majority of its members.

19 (f) REPORT.—Not later than 18 months after the

20 date of the enactment of this Act, the Task Force shall

21 submit, to Congress, the Secretary of Labor, and the Sec22 retary, a report that contains—

23 (1) findings with respect to the duties of the

24 Task Force; and
†

343

S 2611 ES

1 (2) recommendations for imposing a numerical

2 limit.

3 (g) NUMERICAL LIMITATIONS.—Section 214(g)(1) (8

4 U.S.C. 1184(g)(1)) is amended—

5 (1) in subparagraph (B), by striking the period

6 at the end and inserting ‘‘; and’’; and

7 (2) by adding at the end the following:

8 ‘‘(C) under section 101(a)(15)(H)(ii)(c)

9 may not exceed 200,000.’’.

10 (h) ADJUSTMENT TO LAWFUL PERMANENT RESI11 DENT STATUS.—Section 245 (8 U.S.C. 1255) is amended

12 by adding at the end the following:

13 ‘‘(n)(1) For purposes of adjustment of status under

14 subsection (a), employment-based immigrant visas shall be

15 made available, subject to the numerical limitations set

16 out in sections 201(d) and 203(b), to an alien having non17 immigrant status described in section 101(a)(15)(H)(ii)(c)

18 upon the filing of a petition for such a visa—

19 ‘‘(A) by the alien’s employer; or

20 ‘‘(B) by the alien, if—

21 ‘‘(i) the alien has been employed in H–2C

22 status for a cumulative period of not less than

23 4 years;

24 ‘‘(ii) an employer attests that the employer

25 will employ the alien in the offered job position;
†

344

S 2611 ES

1 ‘‘(iii) the Secretary of Labor determines

2 and certifies that there are not sufficient

3 United States workers who are able, willing,

4 qualified, and available to fill the job position;

5 or

6 ‘‘(iv) the Secretary of Labor determines

7 and certifies that there are not sufficient

8 United States workers who are able, willing,

9 qualified, and available to fill the position in

10 which the alien is, or will be, employed; and

11 ‘‘(v) the alien submits at least 2 documents

12 to establish current employment, as follows:

13 ‘‘(I) Records maintained by the Social

14 Security Administration.

15 ‘‘(II) Records maintained by the

16 alien’s employer, such as pay stubs, time

17 sheets, or employment work verification.

18 ‘‘(III) Records maintained by the In19 ternal Revenue Service.

20 ‘‘(IV) Records maintained by any

21 other government agency, such as worker

22 compensation records, disability records, or

23 business licensing records.
†

345

S 2611 ES

1 ‘‘(2) An alien having nonimmigrant status described

2 in section 101(a)(15)(H)(ii)(c) may not apply for adjust3 ment of status under this section unless the alien—

4 ‘‘(A) is physically present in the United States;

5 and

6 ‘‘(B) establishes that the alien meets the re7 quirements of section 312.

8 ‘‘(3) An alien who demonstrates that the alien meets

9 the requirements of section 312 may be considered to have

10 satisfied the requirements of that section for purposes of

11 becoming naturalized as a citizen of the United States

12 under title III.

13 ‘‘(4) Filing a petition under paragraph (1) on behalf

14 of an alien or otherwise seeking permanent residence in

15 the United States for such alien shall not constitute evi16 dence of the alien’s ineligibility for nonimmigrant status

17 under section 101(a)(15)(H)(ii)(c).

18 ‘‘(5) The Secretary of Homeland Security shall ex19 tend, in 1-year increments, the stay of an alien for whom

20 a labor certification petition filed under section 203(b) or

21 an immigrant visa petition filed under section 204(b) is

22 pending until a final decision is made on the alien’s lawful

23 permanent residence.

24 ‘‘(6) Nothing in this subsection shall be construed to

25 prevent an alien having nonimmigrant status described in
†

346

S 2611 ES

1 section 101(a)(15)(H)(ii)(c) from filing an application for

2 adjustment of status under this section in accordance with

3 any other provision of law.’’.

4 SEC. 409. REQUIREMENTS FOR PARTICIPATING COUN5 TRIES.

6 (a) IN GENERAL.—The Secretary of State, in co7 operation with the Secretary and the Attorney General,

8 shall negotiate with each home country of aliens described

9 in section 101(a)(15)(H)(ii)(c) of the Immigration and

10 Nationality Act, as added by section 402, to enter into

11 a bilateral agreement with the United States that con12 forms to the requirements under subsection (b).

13 (b) REQUIREMENTS OF BILATERAL AGREEMENTS.—

14 Each agreement negotiated under subsection (a) shall re15 quire the participating home country to—

16 (1) accept the return of nationals who are or17 dered removed from the United States within 3 days

18 of such removal;

19 (2) cooperate with the United States Govern20 ment to—

21 (A) identify, track, and reduce gang mem22 bership, violence, and human trafficking and

23 smuggling; and

24 (B) control illegal immigration;
†

347

S 2611 ES

1 (3) provide the United States Government

2 with—

3 (A) passport information and criminal

4 records of aliens who are seeking admission to,

5 or are present in, the United States; and

6 (B) admission and entry data to facilitate

7 United States entry-exit data systems; and

8 (4) educate nationals of the home country re9 garding United States temporary worker programs

10 to ensure that such nationals are not exploited; and

11 (5) evaluate means to provide housing incen12 tives in the alien’s home country for returning work13 ers.

14 SEC. 410. S VISAS.

15 (a) EXPANSION OF S VISA CLASSIFICATION.—Sec16 tion 101(a)(15)(S) (8 U.S.C. 1101(a)(15)(S)) is

17 amended—

18 (1) in clause (i)—

19 (A) by striking ‘‘Attorney General’’ each

20 place that term appears and inserting ‘‘Sec21 retary of Homeland Security’’;

22 (B) in subclause (I), by inserting before

23 the semicolon, ‘, including a criminal enterprise

24 undertaken by a foreign government, its agents,

25 representatives, or officials’;
†

348

S 2611 ES

1 (C) in subclause (III), by inserting ‘‘where

2 the information concerns a criminal enterprise

3 undertaken by an individual or organization

4 that is not a foreign government, its agents,

5 representatives, or officials,’’ before ‘‘whose’’;

6 and

7 (D) by striking ‘‘or’’ at the end; and

8 (2) in clause (ii)—

9 (A) by striking ‘‘Attorney General’’ and in10 serting ‘‘Secretary of Homeland Security’’; and

11 (B) by striking ‘‘1956,’’ and all that fol12 lows through ‘‘the alien;’’ and inserting the fol13 lowing: ‘‘1956; or

14 ‘‘(iii) who the Secretary of Homeland Se15 curity and the Secretary of State, in consulta16 tion with the Director of Central Intelligence,

17 jointly determine—

18 ‘‘(I) is in possession of critical reliable

19 information concerning the activities of

20 governments or organizations, or their

21 agents, representatives, or officials, with

22 respect to weapons of mass destruction

23 and related delivery systems, if such gov24 ernments or organizations are at risk of
†

349

S 2611 ES

1 developing, selling, or transferring such

2 weapons or related delivery systems; and

3 ‘‘(II) is willing to supply or has sup4 plied, fully and in good faith, information

5 described in subclause (I) to appropriate

6 persons within the United States Govern7 ment;

8 ‘‘and, if the Secretary of Homeland Security (or

9 with respect to clause (ii), the Secretary of State

10 and the Secretary of Homeland Security jointly)

11 considers it to be appropriate, the spouse, married

12 and unmarried sons and daughters, and parents of

13 an alien described in clause (i), (ii), or (iii) if accom14 panying, or following to join, the alien;’’.

15 (b) NUMERICAL LIMITATION.—Section 214(k)(1) (8

16 U.S.C. 1184(k)(1)) is amended by striking ‘‘The number

17 of aliens’’ and all that follows through the period and in18 serting the following: ‘‘The number of aliens who may be

19 provided a visa as nonimmigrants under section

20 101(a)(15)(S) in any fiscal year may not exceed 1,000.’’.

21 (c) REPORTS.—

22 (1) CONTENT.—Paragraph (4) of section

23 214(k) (8 U.S.C. 1184(k)) is amended—

24 (A) in the matter preceding subparagraph

25 (A)—
†

350

S 2611 ES

1 (i) by striking ‘‘The Attorney Gen2 eral’’ and inserting ‘‘The Secretary of

3 Homeland Security’’; and

4 (ii) by striking ‘‘concerning—’’ and

5 inserting ‘‘that includes—’’;

6 (B) in subparagraph (D), by striking

7 ‘‘and’’;

8 (C) in subparagraph (E), by striking the

9 period at the end and inserting ‘‘; and’’; and

10 (D) by inserting at the end the following:

11 ‘‘(F) in the event that the total number of such

12 nonimmigrants admitted is fewer than 25 percent of

13 the total number provided for under paragraph (1)

14 of this subsection—

15 ‘‘(i) the reasons why the number of such

16 nonimmigrants admitted is fewer than 25 per17 cent of that provided for by law;

18 ‘‘(ii) the efforts made by the Secretary of

19 Homeland Security to admit such non20 immigrants; and

21 ‘‘(iii) any extenuating circumstances that

22 contributed to the admission of a number of

23 such nonimmigrants that is fewer than 25 per24 cent of that provided for by law.’’.
†

351

S 2611 ES

1 (2) FORM OF REPORT.—Section 214(k) (8

2 U.S.C. 1184(k)) is amended by adding at the end

3 the following new paragraph:

4 ‘‘(5) To the extent required by law and if it is

5 in the interests of national security or the security

6 of such nonimmigrants that are admitted, as deter7 mined by the Secretary of Homeland Security, the

8 information contained in a report described in para9 graph (4) may be classified, and the Secretary of

10 Homeland Security shall, to the extent feasible, sub11 mit a non-classified version of the report to the

12 Committee on the Judiciary of the House of Rep13 resentatives and the Committee on the Judiciary of

14 the Senate.’’.

15 SEC. 411. L VISA LIMITATIONS.

16 Section 214(c)(2) (8 U.S.C. 1184(c)(2)) is

17 amended—

18 (1) by striking ‘‘Attorney General’’ each place

19 it appears and inserting ‘‘Secretary of Homeland Se20 curity’’;

21 (2) in subparagraph (E), by striking ‘‘In the

22 case’’ and inserting ‘‘Except as provided in subpara23 graph (H), in the case’’; and

24 (3) by adding at the end the following:
†

352

S 2611 ES

1 ‘‘(G)(i) If the beneficiary of a petition under

2 this subsection is coming to the United States to

3 open, or be employed in, a new facility, the petition

4 may be approved for a period not to exceed 12

5 months only if the employer operating the new facil6 ity has—

7 ‘‘(I) a business plan;

8 ‘‘(II) sufficient physical premises to carry

9 out the proposed business activities; and

10 ‘‘(III) the financial ability to commence

11 doing business immediately upon the approval

12 of the petition.

13 ‘‘(ii) An extension of the approval period under

14 clause (i) may not be granted until the importing

15 employer submits to the Secretary of Homeland

16 Security—

17 ‘‘(I) evidence that the importing employer

18 meets the requirements of this subsection;

19 ‘‘(II) evidence that the beneficiary meets

20 the requirements of section 101(a)(15)(L);

21 ‘‘(III) a statement summarizing the origi22 nal petition;

23 ‘‘(IV) evidence that the importing employer

24 has fully complied with the business plan sub25 mitted under clause (i);
†

353

S 2611 ES

1 ‘‘(V) evidence of the truthfulness of any

2 representations made in connection with the fil3 ing of the original petition;

4 ‘‘(VI) evidence that the importing em5 ployer, during the previous 12 months, has been

6 doing business at the new facility through reg7 ular, systematic, and continuous provision of

8 goods or services, or has otherwise been taking

9 commercially reasonable steps to establish the

10 new facility as a commercial enterprise;

11 ‘‘(VII) a statement of the duties the bene12 ficiary has performed at the new facility during

13 the previous 12 months and the duties the ben14 eficiary will perform at the new facility during

15 the extension period approved under this clause;

16 ‘‘(VIII) a statement describing the staffing

17 at the new facility, including the number of em18 ployees and the types of positions held by such

19 employees;

20 ‘‘(IX) evidence of wages paid to employees

21 if the beneficiary will be employed in a manage22 rial or executive capacity;

23 ‘‘(X) evidence of the financial status of the

24 new facility; and
†

354

S 2611 ES

1 ‘‘(XI) any other evidence or data pre2 scribed by the Secretary.

3 ‘‘(iii) Notwithstanding subclauses (I) through

4 (VI) of clause (ii) and subject to the maximum pe5 riod of authorized admission set forth in subpara6 graph (D), the Secretary of Homeland Security may

7 approve a subsequently filed petition on behalf of the

8 beneficiary to continue employment at the facility

9 described in this subsection for a period beyond the

10 initially granted 12-month period if the importing

11 employer demonstrates that the failure to satisfy any

12 of the requirements described in those subclauses

13 was directly caused by extraordinary circumstances

14 beyond the control of the importing employer.

15 ‘‘(H)(i) The Secretary of Homeland Security

16 may not authorize the spouse of an alien described

17 under section 101(a)(15)(L), who is a dependent of

18 a beneficiary under subparagraph (G), to engage in

19 employment in the United States during the initial

20 9-month period described in subparagraph (G)(i).

21 ‘‘(ii) A spouse described in clause (i) may be

22 provided employment authorization upon the ap23 proval of an extension under subparagraph (G)(ii).

24 ‘‘(I) For purposes of determining the eligibility

25 of an alien for classification under Section
†

355

S 2611 ES

1 101(a)(15)(L) of this Act, the Secretary of Home2 land Security shall establish a program to work co3 operatively with the Department of State to verify a

4 company or facility’s existence in the United States

5 and abroad.’’.

6 SEC. 412. COMPLIANCE INVESTIGATORS.

7 The Secretary of Labor shall, subject to the avail8 ability of appropriations for such purpose, annually in9 crease, by not less than 2,000, the number of positions

10 for compliance investigators dedicated to enforcing compli11 ance with this title, and the amendments made by this

12 title.

13 SEC. 413. VISA WAIVER PROGRAM EXPANSION.

14 Section 217(c) (8 U.S.C. 1187(c)) is amended by

15 adding at the end the following:

16 ‘‘(8) PROBATIONARY ADMISSION.—

17 ‘‘(A) DEFINITION OF MATERIAL SUP18 PORT.—In this paragraph, the term ‘material

19 support’ means the current provision of the

20 equivalent of, but not less than, a battalion

21 (which consists of 300 to 1,000 military per22 sonnel) to Operation Iraqi Freedom or Oper23 ation Enduring Freedom to provide training,

24 logistical or tactical support, or a military pres25 ence.
†

356

S 2611 ES

1 ‘‘(B) DESIGNATION AS A PROGRAM COUN2 TRY.—Notwithstanding any other provision of

3 this section, a country may be designated as a

4 program country, on a probationary basis,

5 under this section if—

6 ‘‘(i) the country is a member of the

7 European Union;

8 ‘‘(ii) the country is providing material

9 support to the United States or the multi10 lateral forces in Afghanistan or Iraq, as

11 determined by the Secretary of Defense, in

12 consultation with the Secretary of State;

13 and

14 ‘‘(iii) the Secretary of Homeland Se15 curity, in consultation with the Secretary

16 of State, determines that participation of

17 the country in the visa waiver program

18 under this section does not compromise the

19 law enforcement interests of the United

20 States.

21 ‘‘(C) REFUSAL RATES; OVERSTAY

22 RATES.—The determination under subpara23 graph (B)(iii) shall only take into account any

24 refusal rates or overstay rates after the expira-
†

357

S 2611 ES

1 tion of the first full year of the country’s admis2 sion into the European Union.

3 ‘‘(D) FULL COMPLIANCE.—Not later than

4 2 years after the date of a country’s designation

5 under subparagraph (B), the country—

6 ‘‘(i) shall be in full compliance with all

7 applicable requirements for program coun8 try status under this section; or

9 ‘‘(ii) shall have its program country

10 designation terminated.

11 ‘‘(E) EXTENSIONS.—The Secretary of

12 State may extend, for a period not to exceed 2

13 years, the probationary designation granted

14 under subparagraph (B) if the country—

15 ‘‘(i) is making significant progress to16 wards coming into full compliance with all

17 applicable requirements for program coun18 try status under this section;

19 ‘‘(ii) is likely to achieve full compli20 ance before the end of such 2–year period;

21 and

22 ‘‘(iii) continues to be an ally of the

23 United States against terrorist states, or24 ganizations, and individuals, as determined
†

358

S 2611 ES

1 by the Secretary of Defense, in consulta2 tion with the Secretary of State.’’.

3 SEC. 414. AUTHORIZATION OF APPROPRIATIONS.

4 There are authorized to be appropriated to the Sec5 retary such sums as may be necessary to carry out this

6 subtitle and the amendments made by this subtitle for the

7 first fiscal year beginning before the date of enactment

8 of this Act and each of the subsequent fiscal years begin9 ning not more than 7 years after the effective date of the

10 regulations promulgated by the Secretary to implement

11 this subtitle.

12 Subtitle B—Immigration Injunction

13 Reform

14 SEC. 421. SHORT TITLE.

15 This subtitle may be cited as the ‘‘Fairness in Immi16 gration Litigation Act of 2006’’.

17 SEC. 422. APPROPRIATE REMEDIES FOR IMMIGRATION

18 LEGISLATION.

19 (a) REQUIREMENTS FOR AN ORDER GRANTING PRO20 SPECTIVE RELIEF AGAINST THE GOVERNMENT.—

21 (1) IN GENERAL.—If a court determines that

22 prospective relief should be ordered against the Gov23 ernment in any civil action pertaining to the admin24 istration or enforcement of the immigration laws of

25 the United States, the court shall—
†

359

S 2611 ES

1 (A) limit the relief to the minimum nec2 essary to correct the violation of law;

3 (B) adopt the least intrusive means to cor4 rect the violation of law;

5 (C) minimize, to the greatest extent prac6 ticable, the adverse impact on national security,

7 border security, immigration administration and

8 enforcement, and public safety, and

9 (D) provide for the expiration of the relief

10 on a specific date, which is not later than the

11 earliest date necessary for the Government to

12 remedy the violation.

13 (2) WRITTEN EXPLANATION.—The require14 ments described in subsection (1) shall be discussed

15 and explained in writing in the order granting pro16 spective relief and must be sufficiently detailed to

17 allow review by another court.

18 (3) EXPIRATION OF PRELIMINARY INJUNCTIVE

19 RELIEF.—Preliminary injunctive relief shall auto20 matically expire on the date that is 90 days after the

21 date on which such relief is entered, unless the

22 court—

23 (A) makes the findings required under

24 paragraph (1) for the entry of permanent pro25 spective relief; and
†

360

S 2611 ES

1 (B) makes the order final before expiration

2 of such 90-day period.

3 (4) REQUIREMENTS FOR ORDER DENYING MO4 TION.—This subsection shall apply to any order de5 nying the Government’s motion to vacate, modify,

6 dissolve or otherwise terminate an order granting

7 prospective relief in any civil action pertaining to the

8 administration or enforcement of the immigration

9 laws of the United States.

10 (b) PROCEDURE FOR MOTION AFFECTING ORDER

11 GRANTING PROSPECTIVE RELIEF AGAINST THE GOVERN12 MENT.—

13 (1) IN GENERAL.—A court shall promptly rule

14 on the Government’s motion to vacate, modify, dis15 solve or otherwise terminate an order granting pro16 spective relief in any civil action pertaining to the

17 administration or enforcement of the immigration

18 laws of the United States.

19 (2) AUTOMATIC STAYS.—

20 (A) IN GENERAL.—The Government’s mo21 tion to vacate, modify, dissolve, or otherwise

22 terminate an order granting prospective relief

23 made in any civil action pertaining to the ad24 ministration or enforcement of the immigration

25 laws of the United States shall automatically,
†

361

S 2611 ES

1 and without further order of the court, stay the

2 order granting prospective relief on the date

3 that is 15 days after the date on which such

4 motion is filed unless the court previously has

5 granted or denied the Government’s motion.

6 (B) DURATION OF AUTOMATIC STAY.—An

7 automatic stay under subparagraph (A) shall

8 continue until the court enters an order grant9 ing or denying the Government’s motion.

10 (C) POSTPONEMENT.—The court, for good

11 cause, may postpone an automatic stay under

12 subparagraph (A) for not longer than 15 days.

13 (D) ORDERS BLOCKING AUTOMATIC

14 STAYS.—Any order staying, suspending, delay15 ing, or otherwise barring the effective date of

16 the automatic stay described in subparagraph

17 (A), other than an order to postpone the effec18 tive date of the automatic stay for not longer

19 than 15 days under subparagraph (C), shall

20 be—

21 (i) treated as an order refusing to va22 cate, modify, dissolve or otherwise termi23 nate an injunction; and
†

362

S 2611 ES

1 (ii) immediately appealable under sec2 tion 1292(a)(1) of title 28, United States

3 Code.

4 (c) SETTLEMENTS.—

5 (1) CONSENT DECREES.—In any civil action

6 pertaining to the administration or enforcement of

7 the immigration laws of the United States, the court

8 may not enter, approve, or continue a consent decree

9 that does not comply with subsection (a).

10 (2) PRIVATE SETTLEMENT AGREEMENTS.—

11 Nothing in this section shall preclude parties from

12 entering into a private settlement agreement that

13 does not comply with subsection (a) if the terms of

14 that agreement are not subject to court enforcement

15 other than reinstatement of the civil proceedings

16 that the agreement settled.

17 (d) DEFINITIONS.—In this section:

18 (1) CONSENT DECREE.—The term ‘‘consent

19 decree’’—

20 (A) means any relief entered by the court

21 that is based in whole or in part on the consent

22 or acquiescence of the parties; and

23 (B) does not include private settlements.
†

363

S 2611 ES

1 (2) GOOD CAUSE.—The term ‘‘good cause’’

2 does not include discovery or congestion of the

3 court’s calendar.

4 (3) GOVERNMENT.—The term ‘‘Government’’

5 means the United States, any Federal department or

6 agency, or any Federal agent or official acting with7 in the scope of official duties.

8 (4) PERMANENT RELIEF.—The term ‘‘perma9 nent relief’’ means relief issued in connection with a

10 final decision of a court.

11 (5) PRIVATE SETTLEMENT AGREEMENT.—The

12 term ‘‘private settlement agreement’’ means an

13 agreement entered into among the parties that is not

14 subject to judicial enforcement other than the rein15 statement of the civil action that the agreement set16 tled.

17 (6) PROSPECTIVE RELIEF.—The term ‘‘pro18 spective relief’’ means temporary, preliminary, or

19 permanent relief other than compensatory monetary

20 damages.

21 (e) EXPEDITED PROCEEDINGS.—It shall be the duty

22 of every court to advance on the docket and to expedite

23 the disposition of any civil action or motion considered

24 under this section.
†

364

S 2611 ES

1 SEC. 423. EFFECTIVE DATE.

2 (a) IN GENERAL.—This subtitle shall apply with re3 spect to all orders granting prospective relief in any civil

4 action pertaining to the administration or enforcement of

5 the immigration laws of the United States, whether such

6 relief was ordered before, on, or after the date of the en7 actment of this Act.

8 (b) PENDING MOTIONS.—Every motion to vacate,

9 modify, dissolve or otherwise terminate an order granting

10 prospective relief in any such action, which motion is

11 pending on the date of the enactment of this Act, shall

12 be treated as if it had been filed on such date of enact13 ment.

14 (c) AUTOMATIC STAY FOR PENDING MOTIONS.—

15 (1) IN GENERAL.—An automatic stay with re16 spect to the prospective relief that is the subject of

17 a motion described in subsection (b) shall take effect

18 without further order of the court on the date which

19 is 10 days after the date of the enactment of this

20 Act if the motion—

21 (A) was pending for 45 days as of the date

22 of the enactment of this Act; and

23 (B) is still pending on the date which is 10

24 days after such date of enactment.

25 (2) DURATION OF AUTOMATIC STAY.—An auto26 matic stay that takes effect under paragraph (1)
†

365

S 2611 ES

1 shall continue until the court enters an order grant2 ing or denying the Government’s motion under sec3 tion 422(b). There shall be no further postponement

4 of the automatic stay with respect to any such pend5 ing motion under section 422(b)(2). Any order, stay6 ing, suspending, delaying or otherwise barring the

7 effective date of this automatic stay with respect to

8 pending motions described in subsection (b) shall be

9 an order blocking an automatic stay subject to im10 mediate appeal under section 422(b)(2)(D).

11 TITLE V—BACKLOG REDUCTION

12 SEC. 501. ELIMINATION OF EXISTING BACKLOGS.

13 (a) FAMILY-SPONSORED IMMIGRANTS.—Section

14 201(c) (8 U.S.C. 1151(c)) is amended to read as follows:

15 ‘‘(c) WORLDWIDE LEVEL OF FAMILY-SPONSORED

16 IMMIGRANTS.—The worldwide level of family-sponsored

17 immigrants under this subsection for a fiscal year is equal

18 to the sum of—

19 ‘‘(1) 480,000;

20 ‘‘(2) the difference between the maximum num21 ber of visas authorized to be issued under this sub22 section during the previous fiscal year and the num23 ber of visas issued during the previous fiscal year;

24 ‘‘(3) the difference between—
†

366

S 2611 ES

1 ‘‘(A) the maximum number of visas au2 thorized to be issued under this subsection dur3 ing fiscal years 2001 through 2005 minus the

4 number of visas issued under this subsection

5 during those fiscal years; and

6 ‘‘(B) the number of visas calculated under

7 subparagraph (A) that were issued after fiscal

8 year 2005.’’.

9 (b) EMPLOYMENT-BASED IMMIGRANTS.—Section

10 201(d) (8 U.S.C. 1151(d)) is amended to read as follows:

11 ‘‘(d) WORLDWIDE LEVEL OF EMPLOYMENT-BASED

12 IMMIGRANTS.—

13 ‘‘(1) IN GENERAL.—Subject to paragraph (2),

14 the worldwide level of employment-based immigrants

15 under this subsection for a fiscal year is equal to the

16 sum of—

17 ‘‘(A)(i) 450,000, for each of the fiscal

18 years 2007 through 2016; or

19 ‘‘(ii) 290,000, for fiscal year 2017 and

20 each subsequent fiscal year;

21 ‘‘(B) the difference between the maximum

22 number of visas authorized to be issued under

23 this subsection during the previous fiscal year

24 and the number of visas issued during the pre25 vious fiscal year; and
†

367

S 2611 ES

1 ‘‘(C) the difference between—

2 ‘‘(i) the maximum number of visas au3 thorized to be issued under this subsection

4 during fiscal years 2001 through 2005 and

5 the number of visa numbers issued under

6 this subsection during those fiscal years;

7 and

8 ‘‘(ii) the number of visas calculated

9 under clause (i) that were issued after fis10 cal year 2005.

11 ‘‘(2) VISAS FOR SPOUSES AND CHILDREN.—

12 ‘‘(A) IN GENERAL.—Except as provided in

13 subparagraph (B), immigrant visas issued on or

14 after October 1, 2004, to spouses and children

15 of employment-based immigrants shall not be

16 counted against the numerical limitation set

17 forth in paragraph (1).

18 ‘‘(B) NUMERICAL LIMITATION.—The total

19 number of visas issued under paragraph (1)(A)

20 and paragraph (2), excluding such visas issued

21 to aliens pursuant to section 245B or section

22 245C of the Immigration and Nationality Act,

23 may not exceed 650,000 during any fiscal year.

24 ‘‘(C) CONSTRUCTION.—Nothing in this

25 paragraph may be construed to modify the re-
†

368

S 2611 ES

1 quirement set out in 245B(a)(1)(I) or

2 245C(i)(2)(A) that prohibit an alien from re3 ceiving an adjustment of status to that of a

4 legal permanent resident prior to the consider5 ation of all applications filed under section 201,

6 202, or 203 before the date of enactment of

7 section 245B and 245C.’’.

8 SEC. 502. COUNTRY LIMITS.

9 Section 202(a) (8 U.S.C. 1152(a)) is amended by

10 striking ‘‘7 percent (in the case of a single foreign state)

11 or 2 percent’’ and inserting ‘‘10 percent (in the case of

12 a single foreign state) or 5 percent’’.

13 SEC. 503. ALLOCATION OF IMMIGRANT VISAS.

14 (a) PREFERENCE ALLOCATION FOR FAMILY-SPON15 SORED IMMIGRANTS.—Section 203(a) (8 U.S.C. 1153(a))

16 is amended to read as follows:

17 ‘‘(a) PREFERENCE ALLOCATIONS FOR FAMILY-SPON18 SORED IMMIGRANTS.—Aliens subject to the worldwide

19 level specified in section 201(c) for family-sponsored immi20 grants shall be allocated visas as follows:

21 ‘‘(1) UNMARRIED SONS AND DAUGHTERS OF

22 CITIZENS.—Qualified immigrants who are the un23 married sons or daughters of citizens of the United

24 States shall be allocated visas in a quantity not to

25 exceed the sum of—
†

369

S 2611 ES

1 ‘‘(A) 10 percent of such worldwide level;

2 and

3 ‘‘(B) any visas not required for the class

4 specified in paragraph (4).

5 ‘‘(2) SPOUSES AND UNMARRIED SONS AND

6 DAUGHTERS OF PERMANENT RESIDENT ALIENS.—

7 ‘‘(A) IN GENERAL.—Visas in a quantity

8 not to exceed 50 percent of such worldwide level

9 plus any visas not required for the class speci10 fied in paragraph (1) shall be allocated to quali11 fied immigrants who are—

12 ‘‘(i) the spouses or children of an

13 alien lawfully admitted for permanent resi14 dence; or

15 ‘‘(ii) the unmarried sons or daughters

16 of an alien lawfully admitted for perma17 nent residence.

18 ‘‘(B) MINIMUM PERCENTAGE.—Visas allo19 cated to individuals described in subparagraph

20 (A)(i) shall constitute not less than 77 percent

21 of the visas allocated under this paragraph.

22 ‘‘(3) MARRIED SONS AND DAUGHTERS OF CITI23 ZENS.—Qualified immigrants who are the married

24 sons and daughters of citizens of the United States
†

370

S 2611 ES

1 shall be allocated visas in a quantity not to exceed

2 the sum of—

3 ‘‘(A) 10 percent of such worldwide level;

4 and

5 ‘‘(B) any visas not required for the classes

6 specified in paragraphs (1) and (2).

7 ‘‘(4) BROTHERS AND SISTERS OF CITIZENS.—

8 Qualified immigrants who are the brothers or sisters

9 of a citizen of the United States who is at least 21

10 years of age shall be allocated visas in a quantity

11 not to exceed 30 percent of the worldwide level.’’.

12 (b) PREFERENCE ALLOCATION FOR EMPLOYMENT13 BASED IMMIGRANTS.—Section 203(b) (8 U.S.C. 1153(b))

14 is amended—

15 (1) in paragraph (1), by striking ‘‘28.6 per16 cent’’ and inserting ‘‘15 percent’’;

17 (2) in paragraph (2)(A), by striking ‘‘28.6 per18 cent’’ and inserting ‘‘15 percent’’;

19 (3) in paragraph (3)(A)—

20 (A) by striking ‘‘28.6 percent’’ and insert21 ing ‘‘35 percent’’; and

22 (B) by striking clause (iii);

23 (4) by striking paragraph (4);

24 (5) by redesignating paragraph (5) as para25 graph (4);
†

371

S 2611 ES

1 (6) in paragraph (4)(A), as redesignated, by

2 striking ‘‘7.1 percent’’ and inserting ‘‘5 percent’’;

3 (7) by inserting after paragraph (4), as redesig4 nated, the following:

5 ‘‘(5) OTHER WORKERS.—

6 ‘‘(A) IN GENERAL.—Visas shall be made

7 available, in a number not to exceed 30 percent

8 of such worldwide level, plus any visa numbers

9 not required for the classes specified in para10 graphs (1) through (4), to qualified immigrants

11 who are capable, at the time of petitioning for

12 classification under this paragraph, of per13 forming unskilled labor that is not of a tem14 porary or seasonal nature, for which qualified

15 workers are determined to be unavailable in the

16 United States.

17 ‘‘(B) PRIORITY IN ALLOCATING VISAS.—In

18 allocating visas under subparagraph (A) for

19 each of the fiscal years 2007 through 2017, the

20 Secretary shall reserve 30 percent of such visas

21 for qualified immigrants who were physically

22 present in the United States before January 7,

23 2004.’’; and

24 (8) by striking paragraph (6).
†

372

S 2611 ES

1 (c) SPECIAL IMMIGRANTS NOT SUBJECT TO NUMER2 ICAL LIMITATIONS.—Section 201(b)(1)(A) (8 U.S.C.

3 1151(b)(1)(A)) is amended by striking ‘‘subparagraph (A)

4 or (B) of ’’.

5 (d) CONFORMING AMENDMENTS.—

6 (1) DEFINITION OF SPECIAL IMMIGRANT.—Sec7 tion 101(a)(27)(M) (8 U.S.C. 1101(a)(27)(M)) is

8 amended by striking ‘‘subject to the numerical limi9 tations of section 203(b)(4),’’.

10 (2) REPEAL OF TEMPORARY REDUCTION IN

11 WORKERS’ VISAS.—Section 203(e) of the Nicaraguan

12 Adjustment and Central American Relief Act (Public

13 Law 105–100; 8 U.S.C. 1153 note) is repealed.

14 SEC. 504. RELIEF FOR MINOR CHILDREN AND WIDOWS.

15 (a) IN GENERAL.—Section 201(b)(2) (8 U.S.C.

16 1151(b)(2)) is amended to read as follows:

17 ‘‘(2)(A)(i) Aliens admitted under section 211(a)

18 on the basis of a prior issuance of a visa under sec19 tion 203(a) to their accompanying parent who is an

20 immediate relative.

21 ‘‘(ii) In this subparagraph, the term ‘immediate

22 relative’ means a child, spouse, or parent of a citizen

23 of the United States (and each child of such child,

24 spouse, or parent who is accompanying or following

25 to join the child, spouse, or parent), except that, in
†

373

S 2611 ES

1 the case of parents, such citizens shall be at least 21

2 years of age.

3 ‘‘(iii) An alien who was the spouse of a citizen

4 of the United States for not less than 2 years at the

5 time of the citizen’s death or, if married for less

6 than 2 years at the time of the citizen’s death,

7 proves by a preponderance of the evidence that the

8 marriage was entered into in good faith and not

9 solely for the purpose of obtaining an immigration

10 benefit and was not legally separated from the cit11 izen at the time of the citizen’s death, and each child

12 of such alien, shall be considered, for purposes of

13 this subsection, to remain an immediate relative

14 after the date of the citizen’s death if the spouse

15 files a petition under section 204(a)(1)(A)(ii) before

16 the earlier of—

17 ‘‘(I) 2 years after such date; or

18 ‘‘(II) the date on which the spouse remar19 ries.

20 ‘‘(iv) In this clause, an alien who has filed a pe21 tition under clause (iii) or (iv) of section

22 204(a)(1)(A) remains an immediate relative if the

23 United States citizen spouse or parent loses United

24 States citizenship on account of the abuse.
†

374

S 2611 ES

1 ‘‘(B) Aliens born to an alien lawfully admitted

2 for permanent residence during a temporary visit

3 abroad.’’.

4 (b) PETITION.—Section 204(a)(1)(A)(ii) (8 U.S.C.

5 1154(a)(1)(A)(ii)) is amended by striking ‘‘in the second

6 sentence of section 201(b)(2)(A)(i) also’’ and inserting ‘‘in

7 section 201(b)(2)(A)(iii) or an alien child or alien parent

8 described in the 201(b)(2)(A)(iv)’’.

9 SEC. 505. SHORTAGE OCCUPATIONS.

10 (a) EXCEPTION TO DIRECT NUMERICAL LIMITA11 TIONS.—Section 201(b)(1) (8 U.S.C. 1151(b)(1)) is

12 amended by adding at the end the following new subpara13 graph:

14 ‘‘(F)(i) During the period beginning on the

15 date of the enactment the Comprehensive Immi16 gration Reform Act of 2006 and ending on Sep17 tember 30, 2017, an alien—

18 ‘‘(I) who is otherwise described in sec19 tion 203(b); and

20 ‘‘(II) who is seeking admission to the

21 United States to perform labor in shortage

22 occupations designated by the Secretary of

23 Labor for blanket certification under sec24 tion 212(a)(5)(A) due to the lack of suffi25 cient United States workers able, willing,
†

375

S 2611 ES

1 qualified, and available for such occupa2 tions and for which the employment of

3 aliens will not adversely affect the terms

4 and conditions of similarly employed

5 United States workers.

6 ‘‘(ii) During the period described in clause

7 (i), the spouse or dependents of an alien de8 scribed in clause (i), if accompanying or fol9 lowing to join such alien.’’.

10 (b) EXCEPTION TO NONDISCRIMINATION REQUIRE11 MENTS.—Section 202(a)(1)(A) (8 U.S.C. 1152(a)(1)(A))

12 is amended by striking ‘‘201(b)(2)(A)(i)’’ and inserting

13 ‘‘201(b)’’.

14 (c) EXCEPTION TO PER COUNTRY LEVELS FOR FAM15 ILY-SPONSORED AND EMPLOYMENT-BASED IMMI16 GRANTS.—Section 202(a)(2) (8 U.S.C. 1152(a)(2)), as

17 amended by section 502(1), is further amended by insert18 ing ‘‘, except for aliens described in section 201(b),’’ after

19 ‘‘any fiscal year’’.

20 (d) INCREASING THE DOMESTIC SUPPLY OF NURSES

21 AND PHYSICAL THERAPISTS.—Not later than January 1,

22 2007, the Secretary of Health and Human Services

23 shall—
†

376

S 2611 ES

1 (1) submit to Congress a report on the source

2 of newly licensed nurses and physical therapists in

3 each State, which report shall—

4 (A) include the past 3 years for which data

5 are available;

6 (B) provide separate data for each occupa7 tion and for each State;

8 (C) separately identify those receiving their

9 initial license and those licensed by endorse10 ment from another State;

11 (D) within those receiving their initial li12 cense in each year, identify the number who re13 ceived their professional education in the

14 United States and those who received such edu15 cation outside the United States; and

16 (E) to the extent possible, identify, by

17 State of residence and country of education, the

18 number of nurses and physical therapists who

19 were educated in any of the 5 countries (other

20 than the United States) from which the most

21 nurses and physical therapists arrived;

22 (F) identify the barriers to increasing the

23 supply of nursing faculty, domestically trained

24 nurses, and domestically trained physical thera25 pists;
†

377

S 2611 ES

1 (G) recommend strategies to be followed by

2 Federal and State governments that would be

3 effective in removing such barriers, including

4 strategies that address barriers to advancement

5 to become registered nurses for other health

6 care workers, such as home health aides and

7 nurses assistants;

8 (H) recommend amendments to Federal

9 legislation that would increase the supply of

10 nursing faculty, domestically trained nurses,

11 and domestically trained physical therapists;

12 (I) recommend Federal grants, loans, and

13 other incentives that would provide increases in

14 nurse educators, nurse training facilities, and

15 other steps to increase the domestic education

16 of new nurses and physical therapists;

17 (J) identify the effects of nurse emigration

18 on the health care systems in their countries of

19 origin; and

20 (K) recommend amendments to Federal

21 law that would minimize the effects of health

22 care shortages in the countries of origin from

23 which immigrant nurses arrived;

24 (2) enter into a contract with the National

25 Academy of Sciences Institute of Medicine to deter-
†

378

S 2611 ES

1 mine the level of Federal investment under titles VII

2 and VIII of the Public Health Service Act necessary

3 to eliminate the domestic nursing and physical ther4 apist shortage not later than 7 years from the date

5 on which the report is published; and

6 (3) collaborate with other agencies, as appro7 priate, in working with ministers of health or other

8 appropriate officials of the 5 countries from which

9 the most nurses and physical therapists arrived,

10 to—

11 (A) address health worker shortages

12 caused by emigration;

13 (B) ensure that there is sufficient human

14 resource planning or other technical assistance

15 needed to reduce further health worker short16 ages in such countries.

17 SEC. 506. RELIEF FOR WIDOWS AND ORPHANS.

18 (a) SHORT TITLE.—This section may be cited as the

19 ‘‘Widows and Orphans Act of 2006’’.

20 (b) NEW SPECIAL IMMIGRANT CATEGORY.—

21 (1) CERTAIN CHILDREN AND WOMEN AT RISK

22 OF HARM.—Section 101(a)(27) (8 U.S.C.

23 1101(a)(27)) is amended—

24 (A) in subparagraph (L), by inserting a

25 semicolon at the end;
†

379

S 2611 ES

1 (B) in subparagraph (M), by striking the

2 period at the end and inserting ‘‘; or’’; and

3 (C) by adding at the end the following:

4 ‘‘(N) subject to subsection (j), an immi5 grant who is not present in the United States—

6 ‘‘(i) who is—

7 ‘‘(I) referred to a consular, immi8 gration, or other designated official by

9 a United States Government agency,

10 an international organization, or rec11 ognized nongovernmental entity des12 ignated by the Secretary of State for

13 purposes of such referrals; and

14 ‘‘(II) determined by such official

15 to be a minor under 18 years of age

16 (as determined under subsection

17 (j)(5))—

18 ‘‘(aa) for whom no parent or

19 legal guardian is able to provide

20 adequate care;

21 ‘‘(bb) who faces a credible

22 fear of harm related to his or her

23 age;

24 ‘‘(cc) who lacks adequate

25 protection from such harm; and
†

380

S 2611 ES

1 ‘‘(dd) for whom it has been

2 determined to be in his or her

3 best interests to be admitted to

4 the United States; or

5 ‘‘(ii) who is—

6 ‘‘(I) referred to a consular or im7 migration official by a United States

8 Government agency, an international

9 organization or recognized nongovern10 mental entity designated by the Sec11 retary of State for purposes of such

12 referrals; and

13 ‘‘(II) determined by such official

14 to be a female who has—

15 ‘‘(aa) a credible fear of

16 harm related to her sex; and

17 ‘‘(bb) a lack of adequate

18 protection from such harm.’’.

19 (2) STATUTORY CONSTRUCTION.—Section 101

20 (8 U.S.C. 1101) is amended by adding at the end

21 the following:

22 ‘‘(j)(1) No natural parent or prior adoptive parent

23 of any alien provided special immigrant status under sub24 section (a)(27)(N)(i) shall thereafter, by virtue of such
†

381

S 2611 ES

1 parentage, be accorded any right, privilege, or status

2 under this Act.

3 ‘‘(2)(A) No alien who qualifies for a special immi4 grant visa under subsection (a)(27)(N)(ii) may apply for

5 derivative status or petition for any spouse who is rep6 resented by the alien as missing, deceased, or the source

7 of harm at the time of the alien’s application and admis8 sion. The Secretary of Homeland Security may waive this

9 requirement for an alien who demonstrates that the alien’s

10 representations regarding the spouse were bona fide.

11 ‘‘(B) An alien who qualifies for a special immigrant

12 visa under subsection (a)(27)(N) may apply for derivative

13 status or petition for any sibling under the age of 18 years

14 or children under the age of 18 years of any such alien,

15 if accompanying or following to join the alien. For pur16 poses of this subparagraph, a determination of age shall

17 be made using the age of the alien on the date the petition

18 is filed with the Department of Homeland Security.

19 ‘‘(3) An alien who qualifies for a special immigrant

20 visa under subsection (a)(27)(N) shall be treated in the

21 same manner as a refugee solely for purposes of section

22 412.

23 ‘‘(4) The provisions of paragraphs (4), (5), and

24 (7)(A) of section 212(a) shall not be applicable to any

25 alien seeking admission to the United States under sub-
†

382

S 2611 ES

1 section (a)(27)(N), and the Secretary of Homeland Secu2 rity may waive any other provision of such section (other

3 than paragraph 2(C) or subparagraph (A), (B), (C), or

4 (E) of paragraph (3)) with respect to such an alien for

5 humanitarian purposes, to assure family unity, or when

6 it is otherwise in the public interest. Any such waiver by

7 the Secretary of Homeland Security shall be in writing

8 and shall be granted only on an individual basis following

9 an investigation. The Secretary of Homeland Security

10 shall provide for the annual reporting to Congress of the

11 number of waivers granted under this paragraph in the

12 previous fiscal year and a summary of the reasons for

13 granting such waivers.

14 ‘‘(5) For purposes of subsection (a)(27)(N)(i)(II), a

15 determination of age shall be made using the age of the

16 alien on the date on which the alien was referred to the

17 consular, immigration, or other designated official.

18 ‘‘(6) The Secretary of Homeland Security shall waive

19 any application fee for a special immigrant visa for an

20 alien described in section 101(a)(27)(N).’’.

21 (3) EXPEDITED PROCESS.—Not later than 45

22 days after the date of referral to a consular, immi23 gration, or other designated official (as described in

24 section 101(a)(27)(N) of the Immigration and Na25 tionality Act, as added by paragraph (1))—
†

383

S 2611 ES

1 (A) special immigrant status shall be adju2 dicated; and

3 (B) if special immigrant status is granted,

4 the alien shall be paroled to the United States

5 pursuant to section 212(d)(5) of that Act (8

6 U.S.C. 1182(d)(5)) and allowed to apply for ad7 justment of status to permanent residence

8 under section 245 of that Act (8 U.S.C. 1255)

9 within 1 year after the alien’s arrival in the

10 United States.

11 (4) REPORT TO CONGRESS.—Not later than 1

12 year after the date of the enactment of this Act, the

13 Secretary shall submit a report to the Committee on

14 the Judiciary of the Senate and the Committee on

15 the Judiciary of the House of Representatives on the

16 progress of the implementation of this section and

17 the amendments made by this section, including—

18 (A) data related to the implementation of

19 this section and the amendments made by this

20 section;

21 (B) data regarding the number of place22 ments of females and children who faces a cred23 ible fear of harm as referred to in section

24 101(a)(27)(N) of the Immigration and Nation25 ality Act, as added by paragraph (1); and
†

384

S 2611 ES

1 (C) any other information that the Sec2 retary considers appropriate.

3 (5) AUTHORIZATION OF APPROPRIATIONS.—

4 There are authorized to be appropriated such sums

5 as may be necessary to carry out this subsection and

6 the amendments made by this subsection.

7 (c) REQUIREMENTS FOR ALIENS.—

8 (1) REQUIREMENT PRIOR TO ENTRY INTO THE

9 UNITED STATES.—

10 (A) DATABASE SEARCH.—An alien may

11 not be admitted to the United States unless the

12 Secretary has ensured that a search of each

13 database maintained by an agency or depart14 ment of the United States has been conducted

15 to determine whether such alien is ineligible to

16 be admitted to the United States on criminal,

17 security, or related grounds.

18 (B) COOPERATION AND SCHEDULE.—The

19 Secretary and the head of each appropriate

20 agency or department of the United States shall

21 work cooperatively to ensure that each database

22 search required by subparagraph (A) is com23 pleted not later than 45 days after the date on

24 which an alien files a petition seeking a special

25 immigration visa under section 101(a)(27)(N)
†

385

S 2611 ES

1 of the Immigration and Nationality Act, as

2 added by subsection (b)(1).

3 (2) REQUIREMENT AFTER ENTRY INTO THE

4 UNITED STATES.—

5 (A) REQUIREMENT TO SUBMIT FINGER6 PRINTS.—

7 (i) IN GENERAL.—Not later than 30

8 days after the date that an alien enters the

9 United States, the alien shall be

10 fingerprinted and submit to the Secretary

11 such fingerprints and any other personal

12 biometric data required by the Secretary.

13 (ii) OTHER REQUIREMENTS.—The

14 Secretary may prescribe regulations that

15 permit fingerprints submitted by an alien

16 under section 262 of the Immigration and

17 Nationality Act (8 U.S.C. 1302) or any

18 other provision of law to satisfy the re19 quirement to submit fingerprints of clause

20 (i).

21 (B) DATABASE SEARCH.—The Secretary

22 shall ensure that a search of each database that

23 contains fingerprints that is maintained by an

24 agency or department of the United States be

25 conducted to determine whether such alien is
†

386

S 2611 ES

1 ineligible for an adjustment of status under any

2 provision of the Immigration and Nationality

3 Act (8 U.S.C. 1101 et seq.) on criminal, secu4 rity, or related grounds.

5 (C) COOPERATION AND SCHEDULE.—The

6 Secretary and the head of each appropriate

7 agency or department of the United States shall

8 work cooperatively to ensure that each database

9 search required by subparagraph (B) is com10 pleted not later than 180 days after the date on

11 which the alien enters the United States.

12 (D) ADMINISTRATIVE AND JUDICIAL RE13 VIEW.—

14 (i) IN GENERAL.—There may be no

15 review of a determination by the Secretary,

16 after a search required by subparagraph

17 (B), that an alien is ineligible for an ad18 justment of status, under any provision of

19 the Immigration and Nationality Act (8

20 U.S.C. 1101 et seq.) on criminal, security,

21 or related grounds except as provided in

22 this subparagraph.

23 (ii) ADMINISTRATIVE REVIEW.—An

24 alien may appeal a determination described

25 in clause (i) through the Administrative
†

387

S 2611 ES

1 Appeals Office of the Bureau of Citizen2 ship and Immigration Services. The Sec3 retary shall ensure that a determination on

4 such appeal is made not later than 60 days

5 after the date that the appeal is filed.

6 (iii) JUDICIAL REVIEW.—There may

7 be no judicial review of a determination de8 scribed in clause (i).

9 SEC. 507. STUDENT VISAS.

10 (a) IN GENERAL.—Section 101(a)(15)(F) (8 U.S.C.

11 1101(a)(15)(F)) is amended—

12 (1) in clause (i)—

13 (A) by striking ‘‘he has no intention of

14 abandoning, who is’’ and inserting the fol15 lowing: ‘‘except in the case of an alien described

16 in clause (iv), the alien has no intention of

17 abandoning, who is—

18 ‘‘(I)’’;

19 (B) by striking ‘‘consistent with section

20 214(l)’’ and inserting ‘‘(except for a graduate

21 program described in clause (iv)) consistent

22 with section 214(m)’’;

23 (C) by striking the comma at the end and

24 inserting the following: ‘‘; or
†

388

S 2611 ES

1 ‘‘(II) engaged in temporary employment

2 for optional practical training related to the

3 alien’s area of study, which practical training

4 shall be authorized for a period or periods of up

5 to 24 months;’’;

6 (2) in clause (ii)—

7 (A) by inserting ‘‘or (iv)’’ after ‘‘clause

8 (i)’’; and

9 (B) by striking ‘‘, and’’ and inserting a

10 semicolon; and

11 (3) by adding at the end the following:

12 ‘‘(iv) an alien described in clause (i)

13 who has been accepted and plans to attend

14 an accredited graduate program in mathe15 matics, engineering, technology, or the

16 sciences in the United States for the pur17 pose of obtaining an advanced degree; and

18 ‘‘(v) an alien who maintains actual

19 residence and place of abode in the alien’s

20 country of nationality, who is described in

21 clause (i), except that the alien’s actual

22 course of study may involve a distance

23 learning program, for which the alien is

24 temporarily visiting the United States for

25 a period not to exceed 30 days.
†

389

S 2611 ES

1 (b) CREATION OF J–STEM VISA CATEGORY.—Sec2 tion 101(a)(15)(J) (8 U.S.C. 1101(a)(15)(J)) is amended

3 to read as follows:

4 ‘‘(J) an alien with a residence in a foreign

5 country that (except in the case of an alien de6 scribed in clause (ii)) the alien has no intention

7 of abandoning, who is a bona fide student,

8 scholar, trainee, teacher, professor, research as9 sistant, specialist, or leader in a field of special10 ized knowledge or skill, or other person of simi11 lar description, and who—

12 ‘‘(i) is coming temporarily to the

13 United States as a participant in a pro14 gram (other than a graduate program de15 scribed in clause (ii)) designated by the

16 Secretary of State, for the purpose of

17 teaching, instructing or lecturing, studying,

18 observing, conducting research, consulting,

19 demonstrating special skills, or receiving

20 training and who, if coming to the United

21 States to participate in a program under

22 which the alien will receive graduate med23 ical education or training, also meets the

24 requirements of section 212(j), and the

25 alien spouse and minor children of any
†

390

S 2611 ES

1 such alien if accompanying the alien or fol2 lowing to join the alien; or

3 ‘‘(ii) has been accepted and plans to

4 attend an accredited graduate program in

5 the sciences, technology, engineering, or

6 mathematics in the United States for the

7 purpose of obtaining an advanced degree.

8 (c) ADMISSION OF NONIMMIGRANTS.—Section

9 214(b) (8 U.S.C. 1184(b)) is amended by striking ‘‘sub10 paragraph (L) or (V)’’ and inserting ‘‘subparagraph

11 (F)(iv), (J)(ii), (L), or (V)’’.

12 (d) REQUIREMENTS FOR F–4 OR J–STEM VISA.—

13 Section 214(m) (8 U.S.C. 1184(m)) is amended—

14 (1) by inserting before paragraph (1) the fol15 lowing:

16 ‘‘(m) NONIMMIGRANT ELEMENTARY, SECONDARY,

17 AND POST-SECONDARY SCHOOL STUDENTS.—’’; and

18 (2) by adding at the end the following:

19 ‘‘(3) A visa issued to an alien under subparagraph

20 (F)(iv) or (J)(ii) of section 101(a)(15) shall be valid—

21 ‘‘(A) during the intended period of study in a

22 graduate program described in such section;

23 ‘‘(B) for an additional period, not to exceed 1

24 year after the completion of the graduate program,

25 if the alien is actively pursuing an offer of employ-
†

391

S 2611 ES

1 ment related to the knowledge and skills obtained

2 through the graduate program; and

3 ‘‘(C) for the additional period necessary for the

4 adjudication of any application for labor certifi5 cation, employment-based immigrant petition, and

6 application under section 245(a)(2) to adjust such

7 alien’s status to that of an alien lawfully admitted

8 for permanent residence, if such application for

9 labor certification or employment-based immigrant

10 petition has been filed not later than 1 year after

11 the completion of the graduate program.

12 (e) WAIVER OF FOREIGN RESIDENCE REQUIRE13 MENT.—Section 212(e) (8 U.S.C. 1182(e)) is amended—

14 (1) by inserting ‘‘(1)’’ before ‘‘No person’’;

15 (2) by striking ‘‘admission (i) whose’’ and in16 serting the following: ‘‘admission—

17 ‘‘(A) whose

18 (3) by striking ‘‘residence, (ii) who’’ and insert19 ing the following: ‘‘residence;

20 ‘‘(B) who

21 (4) by striking ‘‘engaged, or (iii) who’’ and in22 serting the following: ‘‘engaged; or

23 ‘‘(C) who

24 (5) by striking ‘‘training, shall’’ and inserting

25 the following: ‘‘training,
†

392

S 2611 ES

1 ‘‘shall

2 (6) by striking ‘‘United States: Provided, That

3 upon’’ and inserting the following: ‘‘United States.

4 ‘‘(2) Upon’’;

5 (7) by striking ‘‘section 214(l): And provided

6 further, That, except’’ and inserting the following:

7 ‘‘section 214(l).

8 ‘‘(3) Except’’; and

9 (8) by adding at the end the following:

10 ‘‘(4) An alien who has been issued a visa or otherwise

11 provided nonimmigrant status under section

12 101(a)(15)(J)(ii), or who would have qualified for such

13 nonimmigrant status if section 101(a)(15)(J)(ii) had been

14 enacted before the completion of such alien’s graduate

15 studies, shall not be subject to the 2-year foreign residency

16 requirement under this subsection.

17 (f) OFF CAMPUS WORK AUTHORIZATION FOR FOR18 EIGN STUDENTS.—

19 (1) IN GENERAL.—Aliens admitted as non20 immigrant students described in section

21 101(a)(15)(F) of the Immigration and Nationality

22 Act (8 U.S.C. 1101(a)(15)(F)) may be employed in

23 an off-campus position unrelated to the alien’s field

24 of study if—
†

393

S 2611 ES

1 (A) the alien has enrolled full-time at the

2 educational institution and is maintaining good

3 academic standing;

4 (B) the employer provides the educational

5 institution and the Secretary of Labor with an

6 attestation that the employer—

7 (i) has spent at least 21 days recruit8 ing United States citizens to fill the posi9 tion; and

10 (ii) will pay the alien and other simi11 larly situated workers at a rate equal to

12 not less than the greater of—

13 (I) the actual wage level for the

14 occupation at the place of employ15 ment; or

16 (II) the prevailing wage level for

17 the occupation in the area of employ18 ment; and

19 (C) the alien will not be employed more

20 than—

21 (i) 20 hours per week during the aca22 demic term; or

23 (ii) 40 hours per week during vacation

24 periods and between academic terms.
†

394

S 2611 ES

1 (2) DISQUALIFICATION.—If the Secretary of

2 Labor determines that an employer has provided an

3 attestation under paragraph (1)(B) that is materi4 ally false or has failed to pay wages in accordance

5 with the attestation, the employer, after notice and

6 opportunity for a hearing, shall be disqualified from

7 employing an alien student under paragraph (1).

8 (g) ADJUSTMENT OF STATUS.—Section 245(a) (8

9 U.S.C. 1255(a)) is amended to read as follows:

10 ‘‘(a) AUTHORIZATION.—

11 ‘‘(1) IN GENERAL.—The status of an alien, who

12 was inspected and admitted or paroled into the

13 United States, or who has an approved petition for

14 classification under subparagraph (A)(iii), (A)(iv),

15 (B)(ii), or (B)(iii) of section 204(a)(1), may be ad16 justed by the Secretary of Homeland Security or the

17 Attorney General, under such regulations as the Sec18 retary or the Attorney General may prescribe, to

19 that of an alien lawfully admitted for permanent res20 idence if—

21 ‘‘(A) the alien makes an application for

22 such adjustment;

23 ‘‘(B) the alien is eligible to receive an im24 migrant visa;
†

395

S 2611 ES

1 ‘‘(C) the alien is admissible to the United

2 States for permanent residence; and

3 ‘‘(D) an immigrant visa is immediately

4 available to the alien at the time the application

5 is filed.

6 ‘‘(2) STUDENT VISAS.—Notwithstanding the re7 quirement under paragraph (1)(D), an alien may file

8 an application for adjustment of status under this

9 section if—

10 ‘‘(A) the alien has been issued a visa or

11 otherwise provided nonimmigrant status under

12 subparagraph (J)(ii) or (F)(iv) of section

13 101(a)(15), or would have qualified for such

14 nonimmigrant status if subparagraph (J)(ii) or

15 (F)(iv) of section 101(a)(15) had been enacted

16 before the completion of such alien’s graduate

17 studies;

18 ‘‘(B) the alien has earned an advanced de19 gree in the sciences, technology, engineering, or

20 mathematics;

21 ‘‘(C) the alien is the beneficiary of a peti22 tion filed under subparagraph (E) or (F) of sec23 tion 204(a)(1); and

24 ‘‘(D) a fee of $2,000 is remitted to the

25 Secretary on behalf of the alien.
†

396

S 2611 ES

1 ‘‘(3) LIMITATION.—An application for adjust2 ment of status filed under this section may not be

3 approved until an immigrant visa number becomes

4 available.

5 ‘‘(4) FILING IN CASES OF UNAVAILABLE VISA

6 NUMBERS.—Subject to the limitation described in

7 paragraph (3), if a supplemental petition fee is paid

8 for a petition under subparagraph (E) or (F) of sec9 tion 204(a)(1), an application under paragraph (1)

10 on behalf of an alien that is a beneficiary of the peti11 tion (including a spouse or child who is accom12 panying or following to join the beneficiary) may be

13 filed without regard to the requirement under para14 graph (1)(D).

15 ‘‘(5) PENDING APPLICATIONS.—Subject to the

16 limitation described in paragraph (3), if a petition

17 under subparagraph (E) or (F) of section 204(a)(1)

18 is pending or approved as of the date of enactment

19 of this paragraph, on payment of the supplemental

20 petition fee under that section, the alien that is the

21 beneficiary of the petition may submit an application

22 for adjustment of status under this subsection with23 out regard to the requirement under paragraph

24 (1)(D).
†

397

S 2611 ES

1 ‘‘(6) EMPLOYMENT AUTHORIZATIONS AND AD2 VANCED PAROLE TRAVEL DOCUMENTATION.—The

3 Attorney General shall—

4 ‘‘(A) provide to any immigrant who has

5 submitted an application for adjustment of sta6 tus under this subsection not less than 3 incre7 ments, the duration of each of which shall be

8 not less than 3 years, for any applicable em9 ployment authorization or advanced parole trav10 el document of the immigrant; and

11 ‘‘(B) adjust each applicable fee payment

12 schedule in accordance with the increments pro13 vided under subparagraph (A) so that 1 fee for

14 each authorization or document is required for

15 each 3-year increment.’’

16 (h) USE OF FEES.—

17 (1) JOB TRAINING; SCHOLARSHIPS.—Section

18 286(s)(1) (8 U.S.C. 1356(s)(1)) is amended by in19 serting ‘‘and 80 percent of the fees collected under

20 section 245(a)(2)(D)’’ before the period at the end.

21 (2) FRAUD PREVENTION AND DETECTION.—

22 Section 286(v)(1) (8 U.S.C. 1356(v)(1)) is amended

23 by inserting ‘‘and 20 percent of the fees collected

24 under section 245(a)(2)(D)’’ before the period at the

25 end.
†

398

S 2611 ES

1 SEC. 508. VISAS FOR INDIVIDUALS WITH ADVANCED DE2 GREES.

3 (a) ALIENS WITH CERTAIN ADVANCED DEGREES

4 NOT SUBJECT TO NUMERICAL LIMITATIONS ON EMPLOY5 MENT BASED IMMIGRANTS.—

6 (1) IN GENERAL.—Section 201(b)(1) (8 U.S.C.

7 1151(b)(1)), as amended by section 505, is amended

8 by adding at the end the following:

9 ‘‘(G) Aliens who have earned an advanced

10 degree in science, technology, engineering, or

11 math and have been working in a related field

12 in the United States under a nonimmigrant visa

13 during the 3-year period preceding their appli14 cation for an immigrant visa under section

15 203(b).

16 ‘‘(H) Aliens described in subparagraph (A)

17 or (B) of section 203(b)(1)(A) or who have re18 ceived a national interest waiver under section

19 203(b)(2)(B).

20 ‘‘(I) The spouse and minor children of an

21 alien who is admitted as an employment-based

22 immigrant under section 203(b).’’.

23 (2) APPLICABILITY.—The amendment made by

24 paragraph (1) shall apply to any visa application—

25 (A) pending on the date of the enactment

26 of this Act; or
†

399

S 2611 ES

1 (B) filed on or after such date of enact2 ment.

3 (b) LABOR CERTIFICATION.—Section

4 212(a)(5)(A)(ii) (8 U.S.C. 1182(a)(5)(A)(ii)) is

5 amended—

6 (1) in subclause (I), by striking ‘‘or’’ at the

7 end;

8 (2) in subclause (II), by striking the period at

9 the end and inserting ‘‘; or’’; and

10 (3) by adding at the end the following:

11 ‘‘(III) has an advanced degree in

12 the sciences, technology, engineering,

13 or mathematics from an accredited

14 university in the United States and is

15 employed in a field related to such de16 gree.’’.

17 (c) TEMPORARY WORKERS.—Section 214(g) (8

18 U.S.C. 1184(g)) is amended—

19 (1) in paragraph (1)—

20 (A) by striking ‘‘(beginning with fiscal year

21 1992)’’; and

22 (B) in subparagraph (A)—

23 (i) in clause (vii), by striking ‘‘each

24 succeeding fiscal year; or’’ and inserting
†

400

S 2611 ES

1 ‘‘each of fiscal years 2004, 2005, and

2 2006;’’; and

3 (ii) by adding after clause (vii) the

4 following:

5 ‘‘(viii) 115,000 in the first fiscal year

6 beginning after the date of the enactment

7 of this clause; and

8 ‘‘(ix) the number calculated under

9 paragraph (9) in each fiscal year after the

10 year described in clause (viii); or’’;

11 (2) in paragraph (5)—

12 (A) in subparagraph (B), by striking ‘‘or’’

13 at the end;

14 (B) in subparagraph (C), by striking the

15 period at the end and inserting ‘‘; or’’; and

16 (C) by adding at the end the following:

17 ‘‘(D) has earned an advanced degree in

18 science, technology, engineering, or math.’’;

19 (3) by redesignating paragraphs (9), (10), and

20 (11) as paragraphs (10), (11), and (12), respec21 tively; and

22 (4) by inserting after paragraph (8) the fol23 lowing:

24 ‘‘(9) If the numerical limitation in paragraph

25 (1)(A)—
†

401

S 2611 ES

1 ‘‘(A) is reached during a given fiscal year,

2 the numerical limitation under paragraph

3 (1)(A)(ix) for the subsequent fiscal year shall

4 be equal to 120 percent of the numerical limita5 tion of the given fiscal year; or

6 ‘‘(B) is not reached during a given fiscal

7 year, the numerical limitation under paragraph

8 (1)(A)(ix) for the subsequent fiscal year shall

9 be equal to the numerical limitation of the given

10 fiscal year.’’.

11 (d) APPLICABILITY.—The amendment made by sub12 section (c)(2) shall apply to any visa application—

13 (1) pending on the date of the enactment of

14 this Act; or

15 (2) filed on or after such date of enactment.

16 (e) WORLDWIDE LEVEL OF IMMIGRANTS WITH AD17 VANCED DEGREES.—Section 201 (8 U.S.C. 1151) is

18 amended—

19 (1) in subsection (a)(3), by inserting ‘‘and im20 migrants with advanced degrees’’ after ‘‘diversity

21 immigrants’’; and

22 (2) by amending subsection (e) to read as fol23 lows:

24 ‘‘(e) WORLDWIDE LEVEL OF DIVERSITY IMMIGRANTS

25 AND IMMIGRANTS WITH ADVANCED DEGREES.—
†

402

S 2611 ES

1 ‘‘(1) DIVERSITY IMMIGRANTS.—The worldwide

2 level of diversity immigrants described in section

3 203(c)(1) is equal to 18,333 for each fiscal year.

4 ‘‘(2) IMMIGRANTS WITH ADVANCED DE5 GREES.—The worldwide level of immigrants with ad6 vanced degrees described in section 203(c)(2) is

7 equal to 36,667 for each fiscal year.’’.

8 (f) IMMIGRANTS WITH ADVANCED DEGREES.—Sec9 tion 203 (8 U.S.C. 1153(c)) is amended—

10 (1) in subsection (c)—

11 (A) in paragraph (1), by striking ‘‘para12 graph (2), aliens subject to the worldwide level

13 specified in section 201(e)’’ and inserting

14 ‘‘paragraphs (2) and (3), aliens subject to the

15 worldwide level specified in section 201(e)(1)’’;

16 (B) by redesignating paragraphs (2) and

17 (3) as paragraphs (3) and (4), respectively;

18 (C) by inserting after paragraph (1) the

19 following:

20 ‘‘(2) ALIENS WHO HOLD AN ADVANCED DEGREE

21 IN SCIENCE, MATHEMATICS, TECHNOLOGY, OR ENGI22 NEERING.—

23 ‘‘(A) IN GENERAL.—Qualified immigrants

24 who hold a master’s or doctorate degree in the

25 life sciences, the physical sciences, mathematics,
†

403

S 2611 ES

1 technology, or engineering from an accredited

2 university in the United States, or an equiva3 lent foreign degree, shall be allotted visas each

4 fiscal year in a number not to exceed the world5 wide level specified in section 201(e)(2).

6 ‘‘(B) ECONOMIC CONSIDERATIONS.—Be7 ginning on the date which is 1 year after the

8 date of the enactment of this paragraph, the

9 Secretary of State, in consultation with the Sec10 retary of Commerce and the Secretary of

11 Labor, and after notice and public hearing,

12 shall determine which of the degrees described

13 in subparagraph (A) will provide immigrants

14 with the knowledge and skills that are most

15 needed to meet anticipated workforce needs and

16 protect the economic security of the United

17 States.’’;

18 (D) in paragraph (3), as redesignated, by

19 striking ‘‘this subsection’’ each place it appears

20 and inserting ‘‘paragraph (1)’’; and

21 (E) by amending paragraph (4), as redes22 ignated, to read as follows:

23 ‘‘(4) MAINTENANCE OF INFORMATION.—

24 ‘‘(A) DIVERSITY IMMIGRANTS.—The Sec25 retary of State shall maintain information on
†

404

S 2611 ES

1 the age, occupation, education level, and other

2 relevant characteristics of immigrants issued

3 visas under paragraph (1).

4 ‘‘(B) IMMIGRANTS WITH ADVANCED DE5 GREES.—The Secretary of State shall maintain

6 information on the age, degree (including field

7 of study), occupation, work experience, and

8 other relevant characteristics of immigrants

9 issued visas under paragraph (2).’’; and

10 (2) in subsection (e)—

11 (A) in paragraph (2), by striking ‘‘(c)’’ and

12 inserting ‘‘(c)(1)’’;

13 (B) by redesignating paragraph (3) as

14 paragraph (4); and

15 (C) by inserting after paragraph (2) the

16 following:

17 ‘‘(3) Immigrant visas made available under sub18 section (c)(2) shall be issued as follows:

19 ‘‘(A) If the Secretary of State has not made a deter20 mination under subsection (c)(2)(B), immigrant visas

21 shall be issued in a strictly random order established by

22 the Secretary for the fiscal year involved.

23 ‘‘(B) If the Secretary of State has made a determina24 tion under subsection (c)(2)(B) and the number of eligible

25 qualified immigrants who have a degree selected under
†

405

S 2611 ES

1 such subsection and apply for an immigrant visa described

2 in subsection (c)(2) is greater than the worldwide level

3 specified in section 201(e)(2), the Secretary shall issue im4 migrant visas only to such immigrants and in a strictly

5 random order established by the Secretary for the fiscal

6 year involved.

7 ‘‘(C) If the Secretary of State has made a determina8 tion under subsection (c)(2)(B) and the number of eligible

9 qualified immigrants who have degrees selected under

10 such subsection and apply for an immigrant visa described

11 in subsection (c)(2) is not greater than the worldwide level

12 specified in section 201(e)(2), the Secretary shall—

13 ‘‘(i) issue immigrant visas to eligible qualified immi14 grants with degrees selected in subsection (c)(2)(B); and

15 ‘‘(ii) issue any immigrant visas remaining thereafter

16 to other eligible qualified immigrants with degrees de17 scribed in subsection (c)(2)(A) in a strictly random order

18 established by the Secretary for the fiscal year involved.’’.

19 (g) EFFECTIVE DATE.—The amendments made by

20 subsections (e) and (f) shall take effect on October 1,

21 2006.
†

406

S 2611 ES

1 SEC. 509. CHILDREN OF FILIPINO WORLD WAR II VET2 ERANS.

3 Section 201(b)(1) (8 U.S.C. 1151(b)(1)), as amended

4 by sections 505 and 508, is further amended by adding

5 at the end the following:

6 ‘‘(J) Aliens who are eligible for a visa under

7 paragraph (1) or (3) of section 203(a) and are the

8 children of a citizen of the United States who was

9 naturalized pursuant to section 405 of the Immigra10 tion Act of 1990 (8 U.S.C. 1440 note).’’.

11 SEC. 510. EXPEDITED ADJUDICATION OF EMPLOYER PETI12 TIONS FOR ALIENS OF EXTRAORDINARY AR13 TISTIC ABILITY.

14 Section 214(c) (8 U.S.C. 1184(c)) is amended—

15 (1) by striking ‘‘Attorney General’’ each place

16 it appears and inserting ‘‘Secretary of Homeland Se17 curity’’; and

18 (2) in paragraph (6)(D)—

19 (A) by Striking ‘‘Any person’’ and insert20 ing ‘‘(i) Except as provided in clause (ii), any

21 person’’; and

22 (B) adding at the end the following:

23 ‘‘(ii) The Secretary of Homeland Security shall

24 adjudicate each petition for an alien with extraor25 dinary ability in the arts (as described in section

26 101(a)(15)(O)(i)), an alien accompanying such an
†

407

S 2611 ES

1 alien (as described in clauses (ii) and (iii) of section

2 101(a)(15)(O)), or an alien described in section

3 101(a)(15)(P) not later than 30 days after—

4 ‘‘(I) the date on which the petitioner sub5 mits the petition with a written advisory opin6 ion, letter of no objection, or request for a waiv7 er; or

8 ‘‘(II) the date on which the 15-day period

9 described in clause (i) has expired, if the peti10 tioner has had an opportunity, as appropriate,

11 to supply rebuttal evidence.

12 ‘‘(iii) If a petition described in clause (ii) is not

13 adjudicated before the end of the 30-day period de14 scribed in clause (ii) and the petitioner is a qualified

15 nonprofit organization or an individual or entity pe16 titioning primarily on behalf of a qualified nonprofit

17 organization, the Secretary of Homeland Security

18 shall provide the petitioner with the premium-proc19 essing services referred to in section 286(u), without

20 a fee.’’.

21 SEC. 511. POWERLINE WORKERS.

22 Section 214(e) (8 U.S.C. 1184(e)) is amended by

23 adding at the end the following new paragraph:

24 ‘‘(7) A citizen of Canada who is a powerline

25 worker, who has received significant training, and
†

408

S 2611 ES

1 who seeks admission to the United States to perform

2 powerline repair and maintenance services shall be

3 admitted in the same manner and under the same

4 authority as a citizen of Canada described in para5 graph (2).’’.

6 SEC. 512. DETERMINATIONS WITH RESPECT TO CHILDREN

7 UNDER THE HAITIAN REFUGEE IMMIGRA8 TION FAIRNESS ACT OF 1998.

9 (a) IN GENERAL.—Section 902(d) of the Haitian

10 Refugee Immigration Fairness Act of 1998 (8 U.S.C.

11 1255 note) is amended by adding at the end the following:

12 ‘‘(3) DETERMINATIONS WITH RESPECT TO

13 CHILDREN.—

14 ‘‘(A) USE OF APPLICATION FILING

15 DATE.—Determinations made under this sub16 section as to whether an individual is a child of

17 a parent shall be made using the age and status

18 of the individual on October 21, 1998.

19 ‘‘(B) APPLICATION SUBMISSION BY PAR20 ENT.—Notwithstanding paragraph (1)(C), an

21 application under this subsection filed based on

22 status as a child may be filed for the benefit of

23 such child by a parent or guardian of the child,

24 if the child is physically present in the United

25 States on such filing date.’’.
†

409

S 2611 ES

1 (b) NEW APPLICATIONS AND MOTIONS TO RE2 OPEN.—

3 (1) NEW APPLICATIONS.—Notwithstanding sec4 tion 902(a)(1)(A) of the Haitian Refugee Immigra5 tion Fairness Act of 1998, an alien who is eligible

6 for adjustment of status under such Act, as amend7 ed by subsection (a), may submit an application for

8 adjustment of status under such Act not later than

9 the later of—

10 (A) 2 years after the date of the enactment

11 of this Act; or

12 (B) 1 year after the date on which final

13 regulations implementing this section, and the

14 amendment made by subsection (a), are pro15 mulgated.

16 (2) MOTIONS TO REOPEN.—The Secretary shall

17 establish procedures for the reopening and reconsid18 eration of applications for adjustment of status

19 under the Haitian Refugee Immigration Fairness

20 Act of 1998 that are affected by the amendment

21 made by subsection (a).

22 (3) RELATIONSHIP OF APPLICATION TO CER23 TAIN ORDERS.—Section 902(a)(3) of the Haitian

24 Refugee Immigration Fairness Act of 1998 shall

25 apply to an alien present in the United States who
†

410

S 2611 ES

1 has been ordered excluded, deported, removed, or or2 dered to depart voluntarily, and who files an applica3 tion under paragraph (1) or a motion under para4 graph (2), in the same manner as such section

5 902(a)(3) applied to aliens filing applications for ad6 justment of status under such Act prior to April 1,

7 2000.

8 (c) INADMISSIBILITY DETERMINATION.—Section 902

9 of the Haitian Refugee Immigration Fairness Act of 1998

10 (8 U.S.C. 1255 note) is amended in subsections (a)(1)(B)

11 and (d)(1)(D) by inserting ‘‘(6)(C)(i),’’ after ‘‘(6)(A),’’.

12 Subtitle B—SKIL Act

13 SEC. 521. SHORT TITLE.

14 This subtitle may be cited as the ‘‘Securing Knowl15 edge, Innovation, and Leadership Act of 2006’’ or the

16 ‘‘SKIL Act of 2006’’

17 SEC. 522. H–1B VISA HOLDERS.

18 (a) IN GENERAL.—Section 214(g)(5) (8 U.S.C.

19 1184(g)(5)) is amended—

20 (1) in subparagraph (B)—

21 (A) by striking ‘‘nonprofit research’’ and

22 inserting ‘‘nonprofit’’;

23 (B) by inserting ‘‘Federal, State, or local’’

24 before ‘‘governmental’’; and

25 (C) by striking ‘‘or’’ at the end;
†

411

S 2611 ES

1 (2) in subparagraph (C)—

2 (A) by striking ‘‘a United States institu3 tion of higher education (as defined in section

4 101(a) of the Higher Education Act of 1965

5 (20 U.S.C. 1001(a))),’’ and inserting ‘‘an insti6 tution of higher education in a foreign coun7 try,’’; and

8 (B) by striking the period at the end and

9 inserting a semicolon;

10 (3) by adding at the end, the following new sub11 paragraphs:

12 ‘‘(D) has earned a master’s or higher degree

13 from a United States institution of higher education

14 (as defined in section 101(a) of the Higher Edu15 cation Act of 1965 (20 U.S.C. 1001(a)));

16 ‘‘(E) has been awarded medical specialty certifi17 cation based on post-doctoral training and experi18 ence in the United States; or’’.

19 (b) APPLICABILITY.—The amendments made by sub20 section (a) shall apply to any petition or visa application

21 pending on the date of enactment of this Act and any peti22 tion or visa application filed on or after such date.

23 SEC. 523. MARKET-BASED VISA LIMITS.

24 Section 214(g) (8 U.S.C. 1184(g)) is amended—

25 (1) in paragraph (1)—
†

412

S 2611 ES

1 (A) in the matter preceding subparagraph

2 (A), by striking ‘‘(beginning with fiscal year

3 1992)’’; and

4 (B) in subparagraph (A)—

5 (i) in clause (vi) by striking ‘‘and’’;

6 (ii) in clause (vii), by striking ‘‘each

7 succeeding fiscal year; or’’ and inserting

8 ‘‘each of fiscal years 2004, 2005, and

9 2006;’’; and

10 (iii) by adding after clause (vii) the

11 following:

12 ‘‘(viii) 115,000 in the first fiscal year

13 beginning after the date of the enactment

14 of the Securing Knowledge, Innovation,

15 and Leadership Act of 2006; and

16 ‘‘(ix) the number calculated under

17 paragraph (9) in each fiscal year after the

18 year described in clause (viii); or’’;

19 (2) in paragraph (8), by striking subparagraphs

20 (B)(iv) and (D);

21 (3) by redesignating paragraphs (9), (10), and

22 (11) as paragraphs (10), (11), and (12), respec23 tively; and

24 (4) by inserting after paragraph (8) the fol25 lowing:
†

413

S 2611 ES

1 ‘‘(9) If the numerical limitation in paragraph

2 (1)(A)—

3 ‘‘(A) is reached during a given fiscal year,

4 the numerical limitation under paragraph

5 (1)(A)(ix) for the subsequent fiscal year shall

6 be equal to 120 percent of the numerical limita7 tion of the given fiscal year; or

8 ‘‘(B) is not reached during a given fiscal

9 year, the numerical limitation under paragraph

10 (1)(A)(ix) for the subsequent fiscal year shall

11 be equal to the numerical limitation of the given

12 fiscal year.’’.

13 SEC. 524. UNITED STATES EDUCATED IMMIGRANTS.

14 (a) IN GENERAL.—Section 201(b)(1) (8 U.S.C.

15 1151(b)(1)) is amended by adding at the end the fol16 lowing:

17 ‘‘(F) Aliens who have earned a master’s or

18 higher degree from an accredited United States

19 university.

20 ‘‘(G) Aliens who have been awarded med21 ical specialty certification based on post-doc22 toral training and experience in the United

23 States preceding their application for an immi24 grant visa under section 203(b).
†

414

S 2611 ES

1 ‘‘(H) Aliens who will perform labor in

2 shortage occupations designated by the Sec3 retary of Labor for blanket certification under

4 section 212(a)(5)(A) as lacking sufficient

5 United States workers able, willing, qualified,

6 and available for such occupations and for

7 which the employment of aliens will not ad8 versely affect the terms and conditions of simi9 larly employed United States workers.

10 ‘‘(I) Aliens who have earned a master’s de11 gree or higher in science, technology, engineer12 ing, or math and have been working in a re13 lated field in the United States in a non14 immigrant status during the 3-year period pre15 ceding their application for an immigrant visa

16 under section 203(b).

17 ‘‘(J) Aliens described in subparagraph (A)

18 or (B) of section 203(b)(1) or who have re19 ceived a national interest waiver under section

20 203(b)(2)(B).

21 ‘‘(K) The spouse and minor children of an

22 alien who is admitted as an employment-based

23 immigrant under section 203(b).’’.
†

415

S 2611 ES

1 (b) LABOR CERTIFICATIONS.—Section

2 212(a)(5)(A)(ii) (8 U.S.C. 1182(a)(5)(A)(ii)) is

3 amended—

4 (1) by striking ‘‘or’’ at the end of subclause (I);

5 (2) by striking the period at the end of sub6 clause (II) and inserting ‘‘; or’’; and

7 (3) by adding at the end the following:

8 ‘‘(III) is a member of the profes9 sions and has a master’s degree or

10 higher from an accredited United

11 States university or has been awarded

12 medical specialty certification based

13 on post-doctoral training and experi14 ence in the United States.’’.

15 SEC. 525. STUDENT VISA REFORM.

16 (a) IN GENERAL.—

17 (1) NONIMMIGRANT CLASSIFICATION.—Section

18 101(a)(15)(F) (8 U.S.C. 1101(a)(15)(F)) is amend19 ed to read as follows:

20 ‘‘(F) an alien—

21 ‘‘(i) who—

22 ‘‘(I) is a bona fide student qualified to

23 pursue a full course of study in mathe24 matics, engineering, technology, or the

25 sciences leading to a bachelors or graduate
†

416

S 2611 ES

1 degree and who seeks to enter the United

2 States for the purpose of pursuing such a

3 course of study consistent with section

4 214(m) at an institution of higher edu5 cation (as defined by section 101(a) of the

6 Higher Education Act of 1965 (20 U.S.C.

7 1001(a))) in the United States, particu8 larly designated by the alien and approved

9 by the Secretary of Homeland Security,

10 after consultation with the Secretary of

11 Education, which institution or place of

12 study shall have agreed to report to the

13 Secretary the termination of attendance of

14 each nonimmigrant student, and if any

15 such institution of learning or place of

16 study fails to make reports promptly the

17 approval shall be withdrawn; or

18 ‘‘(II) is engaged in temporary employ19 ment for optional practical training related

20 to such alien’s area of study following com21 pletion of the course of study described in

22 subclause (I) for a period or periods of not

23 more than 24 months;

24 ‘‘(ii) who—
†

417

S 2611 ES

1 ‘‘(I) has a residence in a foreign coun2 try which the alien has no intention of

3 abandoning, who is a bona fide student

4 qualified to pursue a full course of study,

5 and who seeks to enter the United States

6 temporarily and solely for the purpose of

7 pursuing such a course of study consistent

8 with section 214(m) at an established col9 lege, university, seminary, conservatory,

10 academic high school, elementary school, or

11 other academic institution or in a language

12 training program in the United States,

13 particularly designated by the alien and

14 approved by the Secretary of Homeland

15 Security, after consultation with the Sec16 retary of Education, which institution or

17 place of study shall have agreed to report

18 to the Secretary the termination of attend19 ance of each nonimmigrant student, and if

20 any such institution of learning or place of

21 study fails to make reports promptly the

22 approval shall be withdrawn; or

23 ‘‘(II) is engaged in temporary employ24 ment for optional practical training related

25 to such alien’s area of study following com-
†

418

S 2611 ES

1 pletion of the course of study described in

2 subclause (I) for a period or periods of not

3 more than 24 months;

4 ‘‘(iii) who is the spouse or minor child of

5 an alien described in clause (i) or (ii) if accom6 panying or following to join such an alien; or

7 ‘‘(iv) who—

8 ‘‘(I) is a national of Canada or Mex9 ico, who maintains actual residence and

10 place of abode in the country of nation11 ality, who is described in clause (i) or (ii)

12 except that the alien’s qualifications for

13 and actual course of study may be full or

14 part-time, and who commutes to the

15 United States institution or place of study

16 from Canada or Mexico; or

17 ‘‘(II) is engaged in temporary employ18 ment for optional practical training related

19 to such the student’s area of study fol20 lowing completion of the course of study

21 described in subclause (I) for a period or

22 periods of not more than 24 months;’’.

23 (2) ADMISSION.—Section 214(b) (8 U.S.C.

24 1184(b)) is amended by inserting ‘‘(F)(i),’’ before

25 ‘‘(L) or (V)’’.
†

419

S 2611 ES

1 (3) CONFORMING AMENDMENT.—Section

2 214(m)(1) (8 U.S.C. 1184(m)(1)) is amended, in the

3 matter preceding subparagraph (A), by striking ‘‘(i)

4 or (iii)’’ and inserting ‘‘(i), (ii), or (iv)’’.

5 (b) OFF CAMPUS WORK AUTHORIZATION FOR FOR6 EIGN STUDENTS.—

7 (1) IN GENERAL.—Aliens admitted as non8 immigrant students described in section

9 101(a)(15)(F), as amended by subsection (a), (8

10 U.S.C. 1101(a)(15)(F)) may be employed in an off11 campus position unrelated to the alien’s field of

12 study if—

13 (A) the alien has enrolled full-time at the

14 educational institution and is maintaining good

15 academic standing;

16 (B) the employer provides the educational

17 institution and the Secretary of Labor with an

18 attestation that the employer—

19 (i) has spent at least 21 days recruit20 ing United States citizens to fill the posi21 tion; and

22 (ii) will pay the alien and other simi23 larly situated workers at a rate equal to

24 not less than the greater of—
†

420

S 2611 ES

1 (I) the actual wage level for the

2 occupation at the place of employ3 ment; or

4 (II) the prevailing wage level for

5 the occupation in the area of employ6 ment; and

7 (C) the alien will not be employed more

8 than—

9 (i) 20 hours per week during the aca10 demic term; or

11 (ii) 40 hours per week during vacation

12 periods and between academic terms.

13 (2) DISQUALIFICATION.—If the Secretary of

14 Labor determines that an employer has provided an

15 attestation under paragraph (1)(B) that is materi16 ally false or has failed to pay wages in accordance

17 with the attestation, the employer, after notice and

18 opportunity for a hearing, shall be disqualified from

19 employing an alien student under paragraph (1).

20 SEC. 526. L–1 VISA HOLDERS SUBJECT TO VISA BACKLOG.

21 Section 214(c)(2) (8 U.S.C. 1184(c)(2)) is amended

22 by adding at the end the following new subparagraph:

23 ‘‘(G) The limitations contained in subparagraph (D)

24 with respect to the duration of authorized stay shall not

25 apply to any nonimmigrant alien previously issued a visa
†

421

S 2611 ES

1 or otherwise provided nonimmigrant status under section

2 101(a)(15)(L) on whose behalf a petition under section

3 204(b) to accord the alien immigrant status under section

4 203(b), or an application for labor certification (if such

5 certification is required for the alien to obtain status

6 under such section 203(b)) has been filed, if 365 days or

7 more have elapsed since such filing. The Secretary of

8 Homeland Security shall extend the stay of an alien who

9 qualifies for an exemption under this subparagraph until

10 such time as a final decision is made on the alien’s lawful

11 permanent residence.’’.

12 SEC. 527. RETAINING WORKERS SUBJECT TO GREEN CARD

13 BACKLOG.

14 (a) ADJUSTMENT OF STATUS.—

15 (1) IN GENERAL.—Section 245(a) (8 U.S.C.

16 1255(a)) is amended to read as follows:

17 ‘‘(a) ELIGIBILITY.—

18 ‘‘(1) IN GENERAL.—The status of an alien who

19 was inspected and admitted or paroled into the

20 United States or the status of any other alien having

21 an approved petition for classification under sub22 paragraph (A)(iii), (A)(iv), (B)(ii), or (B)(iii) of sec23 tion 204(a)(1) may be adjusted by the Secretary of

24 Homeland Security or the Attorney General, in the

25 discretion of the Secretary or the Attorney General
†

422

S 2611 ES

1 under such regulations as the Secretary or Attorney

2 General may prescribe, to that of an alien lawfully

3 admitted for permanent residence if—

4 ‘‘(A) the alien makes an application for

5 such adjustment;

6 ‘‘(B) the alien is eligible to receive an im7 migrant visa and is admissible to the United

8 States for permanent residence; and

9 ‘‘(C) an immigrant visa is immediately

10 available to the alien at the time the application

11 is filed.

12 ‘‘(2) SUPPLEMENTAL FEE.—An application

13 under paragraph (1) that is based on a petition ap14 proved or approvable under subparagraph (E) or (F)

15 of section 204(a)(1) may be filed without regard to

16 the limitation set forth in paragraph (1)(C) if a sup17 plemental fee of $500 is paid by the principal alien

18 at the time the application is filed. A supplemental

19 fee may not be required for any dependent alien ac20 companying or following to join the principal alien.

21 ‘‘(3) VISA AVAILABILITY.—An application for

22 adjustment filed under this paragraph may not be

23 approved until such time as an immigrant visa be24 come available.’’.
†

423

S 2611 ES

1 (b) USE OF FEES.—Section 286(v)(1) (8 U.S.C.

2 1356(v)(1)) is amended by inserting before the period at

3 the end ‘‘and the fees collected under section 245(a)(2).’’.

4 SEC. 528. STREAMLINING THE ADJUDICATION PROCESS

5 FOR ESTABLISHED EMPLOYERS.

6 Section 214(c) (8. U.S.C. 1184) is amended by add7 ing at the end the following new paragraph:

8 ‘‘(1) Not later than 180 days after the date of the

9 enactment of the Securing Knowledge, Innovation, and

10 Leadership Act of 2006, the Secretary of Homeland Secu11 rity shall establish a pre-certification procedure for em12 ployers who file multiple petitions described in this sub13 section or section 203(b). Such precertification procedure

14 shall enable an employer to avoid repeatedly submitting

15 documentation that is common to multiple petitions and

16 establish through a single filing criteria relating to the em17 ployer and the offered employment opportunity.’’.

18 SEC. 529. PROVIDING PREMIUM PROCESSING OF EMPLOY19 MENT-BASED VISA PETITIONS.

20 (a) IN GENERAL.—Pursuant to section 286(u) of the

21 Immigration and Nationality Act (8 U.S.C. 1356(u)), the

22 Secretary of Homeland Security shall establish and collect

23 a fee for premium processing of employment-based immi24 grant petitions.
†

424

S 2611 ES

1 (b) APPEALS.—Pursuant to such section 286(u), the

2 Secretary of Homeland Security shall establish and collect

3 a fee for premium processing of an administrative appeal

4 of any decision on a permanent employment-based immi5 grant petition.

6 SEC. 530. ELIMINATING PROCEDURAL DELAYS IN LABOR

7 CERTIFICATION PROCESS.

8 (a) PREVAILING WAGE RATE.—

9 (1) REQUIREMENT TO PROVIDE.—The Sec10 retary of Labor shall provide prevailing wage deter11 minations to employers seeking a labor certification

12 for aliens pursuant to part 656 of title 20, Code of

13 Federal Regulation (or any successor regulation).

14 The Secretary of Labor may not delegate this func15 tion to any agency of a State.

16 (2) SCHEDULE FOR DETERMINATION.—Except

17 as provided in paragraph (3), the Secretary of Labor

18 shall provide a response to an employer’s request for

19 a prevailing wage determination in no more than 20

20 calendar days from the date of receipt of such re21 quest. If the Secretary of Labor fails to reply during

22 such 20-day period, then the wage proposed by the

23 employer shall be the valid prevailing wage rate.

24 (3) USE OF SURVEYS.—The Secretary of Labor

25 shall accept an alternative wage survey provided by
†

425

S 2611 ES

1 the employer unless the Secretary of Labor deter2 mines that the wage component of the Occupational

3 Employment Statistics Survey is more accurate for

4 the occupation in the labor market area.

5 (b) PLACEMENT OF JOB ORDER.—The Secretary of

6 Labor shall maintain a website with links to the official

7 website of each workforce agency of a State, and such offi8 cial website shall contain instructions on the filing of a

9 job order in order to satisfy the job order requirements

10 of section 656.17(e)(1) of title 20, Code of Federal Regu11 lation (or any successor regulation).

12 (c) TECHNICAL CORRECTIONS.—The Secretary of

13 Labor shall establish a process by which employers seeking

14 certification under section 212(a)(5) of the Immigration

15 and Nationality Act (8 U.S.C. 1182(a)(5)), as amended

16 by section 524(b), may make technical corrections to ap17 plications in order to avoid requiring employers to conduct

18 additional recruitment to correct an initial technical error.

19 A technical error shall include any error that would not

20 have a material effect on the validity of the employer’s

21 recruitment of able, willing, and qualified United States

22 workers.

23 (d) ADMINISTRATIVE APPEALS.—Motions to recon24 sider, and administrative appeals of, a denial of a perma25 nent labor certification application, shall be decided by the
†

426

S 2611 ES

1 Secretary of Labor not later than 60 days after the date

2 of the filing of such motion or such appeal.

3 (e) APPLICATIONS UNDER PREVIOUS SYSTEM.—Not

4 later than 180 days after the date of the enactment of

5 this Act, the Secretary of Labor shall process and issue

6 decisions on all applications for permanent alien labor cer7 tification that were filed prior to March 28, 2005.

8 (f) EFFECTIVE DATE.—The provisions of this section

9 shall take effect 90 days after the date of enactment of

10 this Act, whether or not the Secretary of Labor has

11 amended the regulations at part 656 of title 20, Code of

12 Federal Regulation to implement such changes.

13 SEC. 531. COMPLETION OF BACKGROUND AND SECURITY

14 CHECKS.

15 Section 103 (8 U.S.C. 1103) is amended by adding

16 at the end the following new subsection:

17 ‘‘(i) REQUIREMENT FOR BACKGROUND CHECKS.—

18 Notwithstanding any other provision of law, until appro19 priate background and security checks, as determined by

20 the Secretary of Homeland Security, have been completed,

21 and the information provided to and assessed by the offi22 cial with jurisdiction to grant or issue the benefit or docu23 mentation, on an in camera basis as may be necessary

24 with respect to classified, law enforcement, or other infor25 mation that cannot be disclosed publicly, the Secretary of
†

427

S 2611 ES

1 Homeland Security, the Attorney General, or any court

2 may not—

3 ‘‘(1) grant or order the grant of adjustment of

4 status of an alien to that of an alien lawfully admit5 ted for permanent residence;

6 ‘‘(2) grant or order the grant of any other sta7 tus, relief, protection from removal, or other benefit

8 under the immigration laws; or

9 ‘‘(3) issue any documentation evidencing or re10 lated to such grant by the Secretary, the Attorney

11 General, or any court.

12 ‘‘(j) REQUIREMENT TO RESOLVE FRAUD ALLEGA13 TIONS.—Notwithstanding any other provision of law, until

14 any suspected or alleged fraud relating to the granting of

15 any status (including the granting of adjustment of sta16 tus), relief, protection from removal, or other benefit

17 under this Act has been investigated and resolved, the Sec18 retary of Homeland Security and the Attorney General

19 may not be required to—

20 ‘‘(1) grant or order the grant of adjustment of

21 status of an alien to that of an alien lawfully admit22 ted for permanent residence;

23 ‘‘(2) grant or order the grant of any other sta24 tus, relief, protection from removal, or other benefit

25 under the immigration laws; or
†

428

S 2611 ES

1 ‘‘(3) issue any documentation evidencing or re2 lated to such grant by the Secretary, the Attorney

3 General, or any court.

4 ‘‘(k) PROHIBITION OF JUDICIAL ENFORCEMENT.—

5 Notwithstanding any other provision of law, no court may

6 require any act described in subsection (i) or (j) to be com7 pleted by a certain time or award any relief for the failure

8 to complete such acts.’’.

9 SEC. 532. VISA REVALIDATION.

10 (a) IN GENERAL.—Section 222 (8 U.S.C. 1202) is

11 amended by adding at the end the following:

12 ‘‘(i) The Secretary of State shall permit an alien

13 granted a nonimmigrant visa under subparagraph E, H,

14 I, L, O, or P of section 101(a)(15) to apply for a renewal

15 of such visa within the United States if—

16 ‘‘(1) such visa expired during the 12-month pe17 riod ending on the date of such application;

18 ‘‘(2) the alien is seeking a nonimmigrant visa

19 under the same subparagraph under which the alien

20 had previously received a visa; and

21 ‘‘(3) the alien has complied with the immigra22 tion laws and regulations of the United States.’’.

23 (b) CONFORMING AMENDMENT.—Section 222(h) of

24 such Act is amended, in the matter preceding subpara-
†

429

S 2611 ES

1 graph (1), by inserting ‘‘and except as provided under sub2 section (i),’’ after ‘‘Act’’.

3 Subtitle C—Preservation of Immi4 gration Benefits for Hurricane

5 Katrina Victims

6 SEC. 541. SHORT TITLE.

7 This subtitle may be cited as the ‘‘Hurricane Katrina

8 Victims Immigration Benefits Preservation Act’’.

9 SEC. 542. DEFINITIONS.

10 In this subtitle:

11 (1) APPLICATION OF DEFINITIONS FROM THE

12 IMMIGRATION AND NATIONALITY ACT.—Except as

13 otherwise specifically provided in this subtitle, the

14 definitions in the Immigration and Nationality Act

15 shall apply in the administration of this subtitle.

16 (2) DIRECT RESULT OF A SPECIFIED HURRI17 CANE DISASTER.—The term ‘‘direct result of a spec18 ified hurricane disaster’’—

19 (A) means physical damage, disruption of

20 communications or transportation, forced or

21 voluntary evacuation, business closures, or

22 other circumstances directly caused by Hurri23 cane Katrina (on or after August 26, 2005) or

24 Hurricane Rita (on or after September 21,

25 2005); and
†

430

S 2611 ES

1 (B) does not include collateral or con2 sequential economic effects in or on the United

3 States or global economies.

4 SEC. 543. SPECIAL IMMIGRANT STATUS.

5 (a) PROVISION OF STATUS.—

6 (1) IN GENERAL.—For purposes of the Immi7 gration and Nationality Act (8 U.S.C. 1101 et seq.),

8 the Secretary may provide an alien described in sub9 section (b) with the status of a special immigrant

10 under section 101(a)(27) of such Act (8 U.S.C.

11 1101(a)(27)), if the alien—

12 (A) files with the Secretary a petition

13 under section 204 of such Act (8 U.S.C. 1154)

14 for classification under section 203(b)(4) of

15 such Act (8 U.S.C. 1153(b)(4));

16 (B) is otherwise eligible to receive an im17 migrant visa; and

18 (C) is otherwise admissible to the United

19 States for permanent residence.

20 (2) INAPPLICABLE PROVISION.—In determining

21 admissibility under paragraph (1)(C), the grounds

22 for inadmissibility specified in section 212(a)(4) of

23 such Act (8 U.S.C. 1182(a)(4)) shall not apply.

24 (b) ALIENS DESCRIBED.—
†

431

S 2611 ES

1 (1) PRINCIPAL ALIENS.—An alien is described

2 in this subsection if—

3 (A) the alien was the beneficiary of—

4 (i) a petition that was filed with the

5 Secretary on or before August 26, 2005—

6 (I) under section 204 of the Im7 migration and Nationality Act (8

8 U.S.C. 1154) to classify the alien as

9 a family-sponsored immigrant under

10 section 203(a) of such Act (8 U.S.C.

11 1153(a)) or as an employment-based

12 immigrant under section 203(b) of

13 such Act (8 U.S.C. 1153(b)); or

14 (II) under section 214(d) of such

15 Act (8 U.S.C. 1184(d)) to authorize

16 the issuance of a nonimmigrant visa

17 to the alien under section

18 101(a)(15)(K) of such Act (8 U.S.C.

19 1101(a)(15)(K)); or

20 (ii) an application for labor certifi21 cation under section 212(a)(5)(A) of such

22 Act (8 U.S.C. 1182(a)(5)(A)) that was

23 filed under regulations of the Secretary of

24 Labor on or before such date; and
†

432

S 2611 ES

1 (B) such petition or application was re2 voked or terminated (or otherwise rendered

3 null), before or after its approval, solely due

4 to—

5 (i) the death or disability of the peti6 tioner, applicant, or alien beneficiary as a

7 direct result of a specified hurricane dis8 aster; or

9 (ii) loss of employment as a direct re10 sult of a specified hurricane disaster.

11 (2) SPOUSES AND CHILDREN.—

12 (A) IN GENERAL.—An alien is described in

13 this subsection if—

14 (i) the alien, as of August 26, 2005,

15 was the spouse or child of a principal alien

16 described in paragraph (1); and

17 (ii) the alien—

18 (I) is accompanying such prin19 cipal alien; or

20 (II) is following to join such prin21 cipal alien not later than August 26,

22 2007.

23 (B) CONSTRUCTION.—In construing the

24 terms ‘‘accompanying’’ and ‘‘following to join’’

25 in subparagraph (A)(ii), the death of a prin-
†

433

S 2611 ES

1 cipal alien described in paragraph (1)(B)(i)

2 shall be disregarded.

3 (3) GRANDPARENTS OR LEGAL GUARDIANS OF

4 ORPHANS.—An alien is described in this subsection

5 if the alien is a grandparent or legal guardian of a

6 child whose parents died as a direct result of a spec7 ified hurricane disaster, if either of the deceased

8 parents was, as of August 26, 2005, a citizen or na9 tional of the United States or an alien lawfully ad10 mitted for permanent residence in the United States.

11 (c) PRIORITY DATE.—Immigrant visas made avail12 able under this section shall be issued to aliens in the

13 order in which a petition on behalf of each such alien is

14 filed with the Secretary under subsection (a)(1), except

15 that if an alien was assigned a priority date with respect

16 to a petition described in subsection (b)(1)(A)(i), the alien

17 may maintain that priority date.

18 (d) NUMERICAL LIMITATIONS.—In applying sections

19 201 through 203 of the Immigration and Nationality Act

20 (8 U.S.C. 1151–1153) in any fiscal year, aliens eligible

21 to be provided status under this section shall be treated

22 as special immigrants who are not described in subpara23 graph (A), (B), (C), or (K) of section 101(a)(27) of such

24 Act (8 U.S.C. 1101(a)(27)).
†

434

S 2611 ES

1 SEC. 544. EXTENSION OF FILING OR REENTRY DEADLINES.

2 (a) AUTOMATIC EXTENSION OF NONIMMIGRANT STA3 TUS.—

4 (1) IN GENERAL.—Notwithstanding section 214

5 of the Immigration and Nationality Act (8 U.S.C.

6 1184), an alien described in paragraph (2) who was

7 lawfully present in the United States as a non8 immigrant on August 26, 2005, may, unless other9 wise determined by the Secretary in the Secretary’s

10 discretion, lawfully remain in the United States in

11 the same nonimmigrant status until the later of—

12 (A) the date on which such lawful non13 immigrant status would have otherwise termi14 nated absent the enactment of this subsection;

15 or

16 (B) 1 year after the death or onset of dis17 ability described in paragraph (2).

18 (2) ALIENS DESCRIBED.—

19 (A) PRINCIPAL ALIENS.—An alien is de20 scribed in this paragraph if the alien was dis21 abled as a direct result of a specified hurricane

22 disaster.

23 (B) SPOUSES AND CHILDREN.—An alien is

24 described in this paragraph if the alien, as of

25 August 26, 2005, was the spouse or child of—
†

435

S 2611 ES

1 (i) a principal alien described in sub2 paragraph (A); or

3 (ii) an alien who died as a direct re4 sult of a specified hurricane disaster.

5 (3) AUTHORIZED EMPLOYMENT.—During the

6 period in which a principal alien or alien spouse is

7 in lawful nonimmigrant status under paragraph (1),

8 the alien may be provided an ‘‘employment author9 ized’’ endorsement or other appropriate document

10 signifying authorization of employment.

11 (b) NEW DEADLINES FOR EXTENSION OR CHANGE

12 OF NONIMMIGRANT STATUS.—

13 (1) FILING DELAYS.—

14 (A) IN GENERAL.—If an alien, who was

15 lawfully present in the United States as a non16 immigrant on August 26, 2005, was prevented

17 from filing a timely application for an extension

18 or change of nonimmigrant status as a direct

19 result of a specified hurricane disaster, the

20 alien’s application may be considered timely

21 filed if it is filed not later 1 year after the ap22 plication would have otherwise been due.

23 (B) CIRCUMSTANCES PREVENTING TIMELY

24 ACTION.—For purposes of subparagraph (A),
†

436

S 2611 ES

1 circumstances preventing an alien from timely

2 acting are—

3 (i) office closures;

4 (ii) mail or courier service cessations

5 or delays;

6 (iii) other closures, cessations, or

7 delays affecting case processing or travel

8 necessary to satisfy legal requirements;

9 (iv) mandatory evacuation and reloca10 tion; or

11 (v) other circumstances, including

12 medical problems or financial hardship.

13 (2) DEPARTURE DELAYS.—

14 (A) IN GENERAL.—If an alien, who was

15 lawfully present in the United States as a non16 immigrant on August 26, 2005, is unable to

17 timely depart the United States as a direct re18 sult of a specified hurricane disaster, the alien

19 shall not be considered to have been unlawfully

20 present in the United States during the period

21 beginning on August 26, 2005, and ending on

22 the date of the alien’s departure, if such depar23 ture occurred on or before February 28, 2006.

24 (B) CIRCUMSTANCES PREVENTING TIMELY

25 ACTION.—For purposes of subparagraph (A),
†

437

S 2611 ES

1 circumstances preventing an alien from timely

2 acting are—

3 (i) office closures;

4 (ii) transportation cessations or

5 delays;

6 (iii) other closures, cessations, or

7 delays affecting case processing or travel

8 necessary to satisfy legal requirements;

9 (iv) mandatory evacuation and reloca10 tion; or

11 (v) other circumstances, including

12 medical problems or financial hardship.

13 (c) DIVERSITY IMMIGRANTS.—Section

14 204(a)(1)(I)(ii)(II) (8 U.S.C. 1154(a)(1)(I)(ii)(II)), is

15 amended to read as follows:

16 ‘‘(II) An immigrant visa made available under sub17 section 203(c) for fiscal year 1998, or for a subsequent

18 fiscal year, may be issued, or adjustment of status under

19 section 245(a) based upon the availability of such visa may

20 be granted, to an eligible qualified alien who has properly

21 applied for such visa or adjustment in the fiscal year for

22 which the alien was selected notwithstanding the end of

23 such fiscal year. Such visa or adjustment of status shall

24 be counted against the worldwide level set forth in sub-
†

438

S 2611 ES

1 section 201(e) for the fiscal year for which the alien was

2 selected.’’.

3 (d) EXTENSION OF FILING PERIOD.—If an alien is

4 unable to timely file an application to register or reregister

5 for Temporary Protected Status under section 244 of the

6 Immigration and Nationality Act (8 U.S.C. 1254a) as a

7 direct result of a specified hurricane disaster, the alien’s

8 application may be considered timely filed if it is filed not

9 later than 90 days after it otherwise would have been due.

10 (e) VOLUNTARY DEPARTURE.—

11 (1) IN GENERAL.—Notwithstanding section

12 240B of the Immigration and Nationality Act (8

13 U.S.C. 1229c), if a period for voluntary departure

14 under such section expired during the period begin15 ning on August 26, 2005, and ending on December

16 31, 2005, and the alien was unable to voluntarily de17 part before the expiration date as a direct result of

18 a specified hurricane disaster, such voluntary depar19 ture period is deemed extended for an additional 60

20 days.

21 (2) CIRCUMSTANCES PREVENTING DEPAR22 TURE.—For purposes of this subsection, cir23 cumstances preventing an alien from voluntarily de24 parting the United States are—

25 (A) office closures;
†

439

S 2611 ES

1 (B) transportation cessations or delays;

2 (C) other closures, cessations, or delays af3 fecting case processing or travel necessary to

4 satisfy legal requirements;

5 (D) mandatory evacuation and removal;

6 and

7 (E) other circumstances, including medical

8 problems or financial hardship.

9 (f) CURRENT NONIMMIGRANT VISA HOLDERS.—

10 (1) IN GENERAL.—An alien, who was lawfully

11 present in the United States on August 26, 2005, as

12 a nonimmigrant under section 101(a)(15)(H) of the

13 Immigration and Nationality Act (8 U.S.C.

14 1101(a)(15)(H)) and lost employment as a direct re15 sult of a specified hurricane disaster may accept new

16 employment upon the filing by a prospective em17 ployer of a new petition on behalf of such non18 immigrant not later than August 26, 2006.

19 (2) CONTINUATION OF EMPLOYMENT AUTHOR20 IZATION.—Employment authorization shall continue

21 for such alien until the new petition is adjudicated.

22 If the new petition is denied, such employment shall

23 cease.

24 (3) SAVINGS PROVISION.—Nothing in this sub25 section shall be construed to limit eligibility for port-
†

440

S 2611 ES

1 ability under section 214(n) of the Immigration and

2 Nationality Act (8 U.S.C. 1184(n)).

3 SEC. 545. HUMANITARIAN RELIEF FOR CERTAIN SURVIVING

4 SPOUSES AND CHILDREN.

5 (a) TREATMENT AS IMMEDIATE RELATIVES.—

6 (1) SPOUSES.—Notwithstanding the second

7 sentence of section 201(b)(2)(A)(i) of the Immigra8 tion and Nationality Act (8 U.S.C.

9 1151(b)(2)(A)(i)), in the case of an alien who was

10 the spouse of a citizen of the United States at the

11 time of the citizen’s death and was not legally sepa12 rated from the citizen at the time of the citizen’s

13 death, if the citizen died as a direct result of a speci14 fied hurricane disaster, the alien (and each child of

15 the alien) may be considered, for purposes of section

16 201(b) of such Act, to remain an immediate relative

17 after the date of the citizen’s death if the alien files

18 a petition under section 204(a)(1)(A)(ii) of such Act

19 not later than 2 years after such date and only until

20 the date on which the alien remarries. For purposes

21 of such section 204(a)(1)(A)(ii), an alien granted re22 lief under this paragraph shall be considered an

23 alien spouse described in the second sentence of sec24 tion 201(b)(2)(A)(i) of such Act.

25 (2) CHILDREN.—
†

441

S 2611 ES

1 (A) IN GENERAL.—In the case of an alien

2 who was the child of a citizen of the United

3 States at the time of the citizen’s death, if the

4 citizen died as a direct result of a specified hur5 ricane disaster, the alien may be considered, for

6 purposes of section 201(b) of the Immigration

7 and Nationality Act (8 U.S.C. 1151(b)), to re8 main an immediate relative after the date of the

9 citizen’s death (regardless of subsequent

10 changes in age or marital status), but only if

11 the alien files a petition under subparagraph

12 (B) not later than 2 years after such date.

13 (B) PETITIONS.—An alien described in

14 subparagraph (A) may file a petition with the

15 Secretary for classification of the alien under

16 section 201(b)(2)(A)(i) of the Immigration and

17 Nationality Act (8 U.S.C. 1151(b)(2)(A)(i)),

18 which shall be considered a petition filed under

19 section 204(a)(1)(A) of such Act (8 U.S.C.

20 1154(a)(1)(A)).

21 (b) SPOUSES, CHILDREN, UNMARRIED SONS AND

22 DAUGHTERS OF LAWFUL PERMANENT RESIDENT

23 ALIENS.—

24 (1) IN GENERAL.—Any spouse, child, or unmar25 ried son or daughter of an alien described in para-
†

442

S 2611 ES

1 graph (3) who is included in a petition for classifica2 tion as a family-sponsored immigrant under section

3 203(a)(2) of the Immigration and Nationality Act (8

4 U.S.C. 1153(a)(2)) that was filed by such alien be5 fore August 26, 2005, may be considered (if the

6 spouse, child, son, or daughter has not been admit7 ted or approved for lawful permanent residence by

8 such date) a valid petitioner for preference status

9 under such section with the same priority date as

10 that assigned before the death described in para11 graph (3)(A). No new petition shall be required to

12 be filed. Such spouse, child, son, or daughter may be

13 eligible for deferred action and work authorization.

14 (2) SELF-PETITIONS.—Any spouse, child, or

15 unmarried son or daughter of an alien described in

16 paragraph (3) who is not a beneficiary of a petition

17 for classification as a family-sponsored immigrant

18 under section 203(a)(2) of the Immigration and Na19 tionality Act may file a petition for such classifica20 tion with the Secretary, if the spouse, child, son, or

21 daughter was present in the United States on Au22 gust 26, 2005. Such spouse, child, son, or daughter

23 may be eligible for deferred action and work author24 ization.
†

443

S 2611 ES

1 (3) ALIENS DESCRIBED.—An alien is described

2 in this paragraph if the alien—

3 (A) died as a direct result of a specified

4 hurricane disaster; and

5 (B) on the day of such death, was lawfully

6 admitted for permanent residence in the United

7 States.

8 (c) APPLICATIONS FOR ADJUSTMENT OF STATUS BY

9 SURVIVING SPOUSES AND CHILDREN OF EMPLOYMENT10 BASED IMMIGRANTS.—

11 (1) IN GENERAL.—Any alien who was, on Au12 gust 26, 2005, the spouse or child of an alien de13 scribed in paragraph (2), and who applied for ad14 justment of status before the death described in

15 paragraph (2)(A), may have such application adju16 dicated as if such death had not occurred.

17 (2) ALIENS DESCRIBED.—An alien is described

18 in this paragraph if the alien—

19 (A) died as a direct result of a specified

20 hurricane disaster; and

21 (B) on the day before such death, was—

22 (i) an alien lawfully admitted for per23 manent residence in the United States by

24 reason of having been allotted a visa under
†

444

S 2611 ES

1 section 203(b) of the Immigration and Na2 tionality Act (8 U.S.C. 1153(b)); or

3 (ii) an applicant for adjustment of

4 status to that of an alien described in

5 clause (i), and admissible to the United

6 States for permanent residence.

7 (d) APPLICATIONS BY SURVIVING SPOUSES AND

8 CHILDREN OF REFUGEES AND ASYLEES.—

9 (1) IN GENERAL.—Any alien who, on August

10 26, 2005, was the spouse or child of an alien de11 scribed in paragraph (2), may have his or her eligi12 bility to be admitted under section 207(c)(2)(A) or

13 208(b)(3)(A) of the Immigration and Nationality

14 Act (8 U.S.C. 1157(c)(2)(A), 1158(b)(3)(A)) consid15 ered as if the alien’s death had not occurred.

16 (2) ALIENS DESCRIBED.—An alien is described

17 in this paragraph if the alien—

18 (A) died as a direct result of a specified

19 hurricane disaster; and

20 (B) on the day before such death, was—

21 (i) an alien admitted as a refugee

22 under section 207 of the Immigration and

23 Nationality Act (8 U.S.C. 1157); or

24 (ii) granted asylum under section 208

25 of such Act (8 U.S.C. 1158).
†

445

S 2611 ES

1 (e) WAIVER OF PUBLIC CHARGE GROUNDS.—In de2 termining the admissibility of any alien accorded an immi3 gration benefit under this section, the grounds for inad4 missibility specified in section 212(a)(4) of the Immigra5 tion and Nationality Act (8 U.S.C. 1182(a)(4)) shall not

6 apply.

7 SEC. 546. RECIPIENT OF PUBLIC BENEFITS.

8 An alien shall not be inadmissible under section

9 212(a)(4) of the Immigration and Nationality Act (8

10 U.S.C. 1182(a)(4)) or deportable under section 237(a)(5)

11 of such Act (8 U.S.C. 1227(a)(5)) on the basis that the

12 alien received any public benefit as a direct result of a

13 specified hurricane disaster.

14 SEC. 547. AGE-OUT PROTECTION.

15 In administering the immigration laws, the Secretary

16 and the Attorney General may grant any application or

17 benefit notwithstanding the applicant or beneficiary (in18 cluding a derivative beneficiary of the applicant or bene19 ficiary) reaching an age that would render the alien ineli20 gible for the benefit sought, if the alien’s failure to meet

21 the age requirement occurred as a direct result of a speci22 fied hurricane disaster.

23 SEC. 548. EMPLOYMENT ELIGIBILITY VERIFICATION.

24 (a) IN GENERAL.—The Secretary may suspend or

25 modify any requirement under section 274A(b) of the Im-
†

446

S 2611 ES

1 migration and Nationality Act (8 U.S.C. 1324a(b)) or

2 subtitle A of title IV of the Illegal Immigration Reform

3 and Immigrant Responsibility Act of 1996 (8 U.S.C.

4 1324a note), either generally or with respect to particular

5 persons, class of persons, geographic areas, or economic

6 sectors, to the extent to which the Secretary determines

7 necessary or appropriate to respond to national emer8 gencies or disasters.

9 (b) NOTIFICATION.—If the Secretary suspends or

10 modifies any requirement under section 274A(b) of the

11 Immigration and Nationality Act pursuant to subsection

12 (a), the Secretary shall send notice of such decision, in13 cluding the reasons for the suspension or modification,

14 to—

15 (1) the Committee on the Judiciary of the Sen16 ate; and

17 (2) the Committee of the Judiciary of the

18 House of Representatives.

19 (c) SUNSET DATE.—The authority under subsection

20 (a) shall expire on August 26, 2008.

21 SEC. 549. NATURALIZATION.

22 The Secretary may, with respect to applicants for

23 naturalization in any district of the United States Citizen24 ship and Immigration Services affected by a specified hur25 ricane disaster, administer the provisions of Title III of
†

447

S 2611 ES

1 the Immigration and Nationality Act (8 U.S.C. 1401 et

2 seq.) notwithstanding any provision of such title relating

3 to the jurisdiction of an eligible court to administer the

4 oath of allegiance, or requiring residence to be maintained

5 or any action to be taken in any specific district or State

6 within the United States.

7 SEC. 550. DISCRETIONARY AUTHORITY.

8 The Secretary or the Attorney General may waive vio9 lations of the immigration laws committed, on or before

10 March 1, 2006, by an alien—

11 (1) who was in lawful status on August 26,

12 2005; and

13 (2) whose failure to comply with the immigra14 tion laws was a direct result of a specified hurricane

15 disaster.

16 SEC. 551. EVIDENTIARY STANDARDS AND REGULATIONS.

17 The Secretary shall establish appropriate evidentiary

18 standards for demonstrating, for purposes of this subtitle,

19 that a specified hurricane disaster directly resulted in—

20 (1) death;

21 (2) disability; or

22 (3) loss of employment due to physical damage

23 to, or destruction of, a business.
†

448

S 2611 ES

1 SEC. 552. IDENTIFICATION DOCUMENTS.

2 (a) TEMPORARY IDENTIFICATION.—The Secretary

3 shall have the authority to instruct any Federal agency

4 to issue temporary identification documents to individuals

5 affected by a specified hurricane disaster. Such documents

6 shall be acceptable for purposes of identification under any

7 Federal law or regulation until August 26, 2006.

8 (b) ISSUANCE.—An agency may not issue identity

9 documents under this section after January 1, 2006.

10 (c) NO COMPULSION TO ACCEPT OR CARRY IDENTI11 FICATION DOCUMENTS.—Nationals of the United States

12 shall not be compelled to accept or carry documents issued

13 under this section.

14 (d) NO PROOF OF CITIZENSHIP.—Identity docu15 ments issued under this section shall not constitute proof

16 of citizenship or immigration status.

17 SEC. 553. WAIVER OF REGULATIONS.

18 The Secretary shall carry out the provisions of this

19 subtitle as expeditiously as possible. The Secretary is not

20 required to promulgate regulations before implementing

21 this subtitle. The requirements of chapter 5 of title 5,

22 United States Code (commonly referred to as the ‘‘Admin23 istrative Procedure Act’’) or any other law relating to rule

24 making, information collection, or publication in the Fed25 eral Register, shall not apply to any action to implement

26 this subtitle to the extent the Secretary of Homeland Se-
†

449

S 2611 ES

1 curity, the Secretary of Labor, or the Secretary of State

2 determine that compliance with such requirement would

3 impede the expeditious implementation of such Act.

4 SEC. 554. NOTICES OF CHANGE OF ADDRESS.

5 (a) IN GENERAL.—If a notice of change of address

6 otherwise required to be submitted to the Secretary by an

7 alien described in subsection (b) relates to a change of

8 address occurring during the period beginning on August

9 26, 2005, and ending on the date of the enactment of this

10 Act, the alien may submit such notice.

11 (b) ALIENS DESCRIBED.—An alien is described in

12 this subsection if the alien—

13 (1) resided, on August 26, 2005, within a dis14 trict of the United States that was declared by the

15 President to be affected by a specified hurricane dis16 aster; and

17 (2) is required, under section 265 of the Immi18 gration and Nationality Act (8 U.S.C. 1305) or any

19 other provision of law, to notify the Secretary in

20 writing of a change of address.

21 SEC. 555. FOREIGN STUDENTS AND EXCHANGE PROGRAM

22 PARTICIPANTS.

23 (a) IN GENERAL.—The nonimmigrant status of an

24 alien described in subsection (b) shall be deemed to have

25 been maintained during the period beginning on August
†

450

S 2611 ES

1 26, 2005, and ending on September 15, 2006, if, on Sep2 tember 15, 2006, the alien is enrolled in a course of study,

3 or participating in a designated exchange visitor program,

4 sufficient to satisfy the terms and conditions of the alien’s

5 nonimmigrant status on August 26, 2005.

6 (b) ALIENS DESCRIBED.—An alien is described in

7 this subsection if the alien—

8 (1) was, on August 26, 2005, lawfully present

9 in the United States in the status of a non10 immigrant described in subparagraph (F), (J), or

11 (M) of section 101(a)(15) of the Immigration and

12 Nationality Act (8 U.S.C. 1101(a)(15)); and

13 (2) fails to satisfy a term or condition of such

14 status as a direct result of a specified hurricane dis15 aster.
†

451

S 2611 ES

1 TITLE VI—WORK AUTHORIZA2 TION AND LEGALIZATION OF

3 UNDOCUMENTED INDIVID4 UALS

5 Subtitle A—Access to Earned Ad6 justment and Mandatory Depar7 ture and Reentry

8 SEC. 601. ACCESS TO EARNED ADJUSTMENT AND MANDA9 TORY DEPARTURE AND REENTRY.

10 (a) SHORT TITLE.—This section may be cited as the

11 ‘‘Immigrant Accountability Act of 2006’’.

12 (b) ADJUSTMENT OF STATUS.—

13 (1) IN GENERAL.—Chapter 5 of title II (8

14 U.S.C. 1255 et seq.) is amended by inserting after

15 section 245A the following:

16 ‘‘SEC. 245B. ACCESS TO EARNED ADJUSTMENT.

17 ‘‘(a) ADJUSTMENT OF STATUS.—

18 ‘‘(1) PRINCIPAL ALIENS.—Notwithstanding any

19 other provision of law, including section 244(h) of

20 this Act, the Secretary of Homeland Security shall

21 adjust to the status of an alien lawfully admitted for

22 permanent residence, an alien who satisfies the fol23 lowing requirements:

24 ‘‘(A) APPLICATION.—The alien shall file

25 an application establishing eligibility for adjust-
†

452

S 2611 ES

1 ment of status and pay the fine required under

2 subsection (m) and any additional amounts

3 owed under that subsection.

4 ‘‘(B) CONTINUOUS PHYSICAL PRESENCE.—

5 ‘‘(i) IN GENERAL.—The alien shall es6 tablish that the alien—

7 ‘‘(I) was physically present in the

8 United States on or before the date

9 that is 5 years before April 5, 2006;

10 ‘‘(II) was not legally present in

11 the United States on April 5, 2006,

12 under any classification set forth in

13 section 101(a)(15); and

14 ‘‘(III) did not depart from the

15 United States during the 5-year pe16 riod ending on April 5, 2006, except

17 for brief, casual, and innocent depar18 tures.

19 ‘‘(ii) LEGALLY PRESENT.—For pur20 poses of this subparagraph, an alien who

21 has violated any conditions of his or her

22 visa shall be considered not to be legally

23 present in the United States.

24 ‘‘(C) ADMISSIBLE UNDER IMMIGRATION

25 LAWS.—The alien shall establish that the alien
†

453

S 2611 ES

1 is not inadmissible under section 212(a) except

2 for any provision of that section that is waived

3 under subsection (b) of this section.

4 ‘‘(D) EMPLOYMENT IN UNITED STATES.—

5 ‘‘(i) IN GENERAL.—The alien shall

6 have been employed in the United States,

7 in the aggregate, for—

8 ‘‘(I) at least 3 years during the

9 5-year period ending on April 5, 2006;

10 and

11 ‘‘(II) at least 6 years after the

12 date of enactment of the Immigrant

13 Accountability Act of 2006.

14 ‘‘(ii) EXCEPTIONS.—

15 ‘‘(I) The employment require16 ment in clause (i)(I) shall not apply to

17 an individual who is under 20 years of

18 age on the date of enactment of the

19 Immigrant Accountability Act of

20 2006.

21 ‘‘(II) The employment require22 ment in clause (i)(II) shall be reduced

23 for an individual who cannot dem24 onstrate employment based on a phys-
†

454

S 2611 ES

1 ical or mental disability or as a result

2 of pregnancy.

3 ‘‘(III) The employment require4 ment in clause (i)(II) shall be reduced

5 for an individual who is under 20

6 years of age on the date of enactment

7 of the Immigrant Accountability Act

8 of 2006 by a period of time equal to

9 the time period beginning on such

10 date of enactment and ending on the

11 date on which the individual reaches

12 20 years of age.

13 ‘‘(IV) The employment require14 ments in clause (i) shall be reduced by

15 1 year for each year of full time post16 secondary study in the United States

17 during the relevant period.

18 ‘‘(V) The employment require19 ment under clause (i)(I) shall not

20 apply to any individual who is 65

21 years of age or older on the date of

22 the enactment of the Immigrant Ac23 countability Act of 2006.

24 ‘‘(iii) PORTABILITY.—An alien shall

25 not be required to complete the employ-
†

455

S 2611 ES

1 ment requirements in clause (i) with the

2 same employer.

3 ‘‘(iv) EVIDENCE OF EMPLOYMENT.—

4 ‘‘(I) CONCLUSIVE DOCUMENTS.—

5 For purposes of satisfying the require6 ments in clause (i), the alien shall

7 submit at least 2 of the following doc8 uments for each period of employ9 ment, which shall be considered con10 clusive evidence of such employment:

11 ‘‘(aa) Records maintained by

12 the Social Security Administra13 tion.

14 ‘‘(bb) Records maintained by

15 an employer, such as pay stubs,

16 time sheets, or employment work

17 verification.

18 ‘‘(cc) Records maintained by

19 the Internal Revenue Service.

20 ‘‘(dd) Records maintained

21 by a union or day labor center.

22 ‘‘(ee) Records maintained by

23 any other government agency,

24 such as worker compensation
†

456

S 2611 ES

1 records, disability records, or

2 business licensing records.

3 ‘‘(II) OTHER DOCUMENTS.—An

4 alien who is unable to submit a docu5 ment described in subclause (I) may

6 satisfy the requirement in clause (i)

7 by submitting to the Secretary at

8 least 2 other types of reliable docu9 ments that provide evidence of em10 ployment for each required period of

11 employment, including—

12 ‘‘(aa) bank records;

13 ‘‘(bb) business records;

14 ‘‘(cc) sworn affidavits from

15 non-relatives who have direct

16 knowledge of the alien’s work, in17 cluding the name, address, and

18 phone number of the affiant, the

19 nature and duration of the rela20 tionship between the affiant and

21 the alien, and other verification

22 information; or

23 ‘‘(dd) remittance records.

24 ‘‘(v) BURDEN OF PROOF.—An alien

25 applying for adjustment of status under
†

457

S 2611 ES

1 this subsection has the burden of proving

2 by a preponderance of the evidence that

3 the alien has satisfied the employment re4 quirements in clause (i). Once the burden

5 is met, the burden shall shift to the Sec6 retary of Homeland Security to disprove

7 the alien’s evidence with a showing which

8 negates the reasonableness of the inference

9 to be drawn from the evidence.

10 ‘‘(E) PAYMENT OF INCOME TAXES.—

11 ‘‘(i) IN GENERAL.—Not later than the

12 date on which status is adjusted under this

13 section, the alien establishes the payment

14 of any applicable Federal tax liability by

15 establishing that—

16 ‘‘(I) no such tax liability exists;

17 ‘‘(II) all outstanding liabilities

18 have been paid; or

19 ‘‘(III) the alien has entered into

20 an agreement for payment of all out21 standing liabilities with the Internal

22 Revenue Service.

23 ‘‘(ii) APPLICABLE FEDERAL TAX LI24 ABILITY.—For purposes of clause (i), the

25 term ‘applicable Federal tax liability’
†

458

S 2611 ES

1 means liability for Federal taxes, including

2 penalties and interest, owed for any year

3 during the period of employment required

4 by subparagraph (D)(i) for which the stat5 utory period for assessment of any defi6 ciency for such taxes has not expired.

7 ‘‘(iii) IRS COOPERATION.—The Sec8 retary of the Treasury shall establish rules

9 and procedures under which the Commis10 sioner of Internal Revenue shall provide

11 documentation to an alien upon request to

12 establish the payment of all taxes required

13 by this subparagraph.

14 ‘‘(i) IN GENERAL.—The alien may satisfy such

15 requirement by establishing that—

16 ‘‘(I) no such tax liability exists;

17 ‘‘(II) all outstanding liabilities have been

18 met; or

19 ‘‘(III) the alien has entered into an agree20 ment for payment of all outstanding liabil21 ities with the Internal Revenue Service and

22 with the department of revenue of each

23 State to which taxes are owed.

24 ‘‘(ii) LIMITATION.—Provided further that an

25 alien required to pay taxes under this subpara-
†

459

S 2611 ES

1 graph, or who otherwise satisfies the require2 ments of clause (i), shall not be allowed to col3 lect any tax refund for any taxable year prior

4 to 2006, or to file any claim for the Earned In5 come Tax Credit, or any other tax credit other6 wise allowable under the tax code, prior to such

7 taxable year.

8 ‘‘(F) BASIC CITIZENSHIP SKILLS.—

9 ‘‘(i) IN GENERAL.—Except as pro10 vided in clause (ii), the alien shall dem11 onstrate that the alien meets the require12 ments of section 312(a) (relating to

13 English proficiency and understanding of

14 United States history and Government).

15 ‘‘(ii) EXCEPTIONS.—

16 ‘‘(I) MANDATORY.—The require17 ments of clause (i) shall not apply to

18 any person who is unable to comply

19 with those requirements because of a

20 physical or developmental disability or

21 mental impairment.

22 ‘‘(II) DISCRETIONARY.—The Sec23 retary of Homeland Security may

24 waive all or part of the requirements

25 of clause (i) in the case of an alien
†

460

S 2611 ES

1 who is 65 years of age or older as of

2 the date of the filing of the applica3 tion for adjustment of status.

4 ‘‘(G) SECURITY AND LAW ENFORCEMENT

5 CLEARANCES.—The alien shall submit finger6 prints in accordance with procedures estab7 lished by the Secretary of Homeland Security.

8 Such fingerprints shall be submitted to relevant

9 Federal agencies to be checked against existing

10 databases for information relating to criminal,

11 national security, or other law enforcement ac12 tions that would render the alien ineligible for

13 adjustment of status under this subsection. The

14 relevant Federal agencies shall work to ensure

15 that such clearances are completed within 90

16 days of the submission of fingerprints. An ap17 peal of a security clearance determination by

18 the Secretary of Homeland Security shall be

19 processed through the Department of Home20 land Security.

21 ‘‘(H) MILITARY SELECTIVE SERVICE.—The

22 alien shall establish that if the alien is within

23 the age period required under the Military Se24 lective Service Act (50 U.S.C. App. 451 et seq.)

25 that such alien has registered under that Act.
†

461

S 2611 ES

1 ‘‘(I) ADJUSTMENT OF STATUS.—The Sec2 retary may not adjust the status of an alien

3 under this section to that of lawful permanent

4 resident until the Secretary determines that the

5 priority dates have become current for the class

6 of aliens whose family-based or employment7 based petitions for permanent residence were

8 pending on the date of the enactment of the

9 Comprehensive Immigration Reform Act of

10 2006.

11 ‘‘(2) SPOUSES AND CHILDREN.—

12 ‘‘(A) IN GENERAL.—

13 ‘‘(i) ADJUSTMENT OF STATUS.—Not14 withstanding any other provision of law,

15 the Secretary of Homeland Security shall,

16 if otherwise eligible under subparagraph

17 (B), adjust the status to that of a lawful

18 permanent resident for—

19 ‘‘(I) the spouse, or child who was

20 under 21 years of age on the date of

21 enactment of the Immigrant Account22 ability Act of 2006, of an alien who

23 adjusts status or is eligible to adjust

24 status to that of a permanent resident

25 under paragraph (1); or
†

462

S 2611 ES

1 ‘‘(II) an alien who, within 5

2 years preceding the date of enactment

3 of the Immigrant Accountability Act

4 of 2006, was the spouse or child of an

5 alien who adjusts status to that of a

6 permanent resident under paragraph

7 (1), if—

8 ‘‘(aa) the termination of the

9 qualifying relationship was con10 nected to domestic violence; or

11 ‘‘(bb) the spouse or child

12 has been battered or subjected to

13 extreme cruelty by the spouse or

14 parent who adjusts status or is

15 eligible to adjust status to that of

16 a permanent resident under para17 graph (1).

18 ‘‘(ii) APPLICATION OF OTHER LAW.—

19 In acting on applications filed under this

20 paragraph with respect to aliens who have

21 been battered or subjected to extreme cru22 elty, the Secretary of Homeland Security

23 shall apply the provisions of section

24 204(a)(1)(J) and the protections, prohibi25 tions, and penalties under section 384 of
†

463

S 2611 ES

1 the Illegal Immigration Reform and Immi2 grant Responsibility Act of 1996 (8 U.S.C.

3 1367).

4 ‘‘(B) GROUNDS OF INADMISSIBILITY NOT

5 APPLICABLE.—In establishing admissibility to

6 the United States, the spouse or child described

7 in subparagraph (A) shall establish that they

8 are not inadmissible under section 212(a), ex9 cept for any provision of that section that is

10 waived under subsection (b) of this section.

11 ‘‘(C) SECURITY AND LAW ENFORCEMENT

12 CLEARANCE.—The spouse or child, if that child

13 is 14 years of age or older, described in sub14 paragraph (A) shall submit fingerprints in ac15 cordance with procedures established by the

16 Secretary of Homeland Security. Such finger17 prints shall be submitted to relevant Federal

18 agencies to be checked against existing data19 bases for information relating to criminal, na20 tional security, or other law enforcement actions

21 that would render the alien ineligible for adjust22 ment of status under this subsection. The rel23 evant Federal agencies shall work to ensure

24 that such clearances are completed within 90

25 days of the submission of fingerprints. An ap-
†

464

S 2611 ES

1 peal of a denial by the Secretary of Homeland

2 Security shall be processed through the Depart3 ment of Homeland Security.

4 ‘‘(3) NONAPPLICABILITY OF NUMERICAL LIMI5 TATIONS.—When an alien is granted lawful perma6 nent resident status under this subsection, the num7 ber of immigrant visas authorized to be issued under

8 any provision of this Act shall not be reduced.

9 ‘‘(b) GROUNDS OF INADMISSIBILITY.—

10 ‘‘(1) APPLICABLE PROVISIONS.—In the deter11 mination of an alien’s admissibility under para12 graphs (1)(C) and (2) of subsection (a), the fol13 lowing provisions of section 212(a) shall apply and

14 may not be waived by the Secretary of Homeland

15 Security under paragraph (3)(A):

16 ‘‘(A) Paragraph (1) (relating to health).

17 ‘‘(B) Paragraph (2) (relating to criminals).

18 ‘‘(C) Paragraph (3) (relating to security

19 and related grounds).

20 ‘‘(D) Subparagraphs (A) and (C) of para21 graph (10) (relating to polygamists and child

22 abductors).

23 ‘‘(2) GROUNDS OF INADMISSIBILITY NOT APPLI24 CABLE.—The provisions of paragraphs (5), (6)(A),

25 (6)(B), (6)(C), (6)(F), (6)(G), (7), (9) (other than
†

465

S 2611 ES

1 subparagraph (C)(i)(II)), and (10)(B) of section

2 212(a) shall not apply to an alien who is applying

3 for adjustment of status under subsection (a).

4 ‘‘(3) WAIVER OF OTHER GROUNDS.—

5 ‘‘(A) IN GENERAL.—Except as provided in

6 paragraph (1), the Secretary of Homeland Se7 curity may waive any provision of section

8 212(a) in the case of individual aliens for hu9 manitarian purposes, to ensure family unity, or

10 when it is otherwise in the public interest.

11 ‘‘(B) CONSTRUCTION.—Nothing in this

12 paragraph shall be construed as affecting the

13 authority of the Secretary of Homeland Secu14 rity, other than under this subparagraph, to

15 waive the provisions of section 212(a).

16 ‘‘(4) SPECIAL RULE FOR DETERMINATION OF

17 PUBLIC CHARGE.—An alien is not ineligible for ad18 justment of status under subsection (a) by reason of

19 a ground of inadmissibility under section 212(a)(4)

20 if the alien establishes a history of employment in

21 the United States evidencing self-support without

22 public cash assistance.

23 ‘‘(5) SPECIAL RULE FOR INDIVIDUALS WHERE

24 THERE IS NO COMMERCIAL PURPOSE.—An alien is

25 not ineligible for adjustment of status under sub-
†

466

S 2611 ES

1 section (a) by reason of a ground of inadmissibility

2 under section 212(a)(6)(E) if the alien establishes

3 that the action referred to in that section was taken

4 for humanitarian purposes, to ensure family unity,

5 or was otherwise in the public interest.

6 ‘‘(6) APPLICABILITY OF OTHER PROVISIONS.—

7 Section 241(a)(5) and section 240B(d) shall not

8 apply with respect to an alien who is applying for

9 adjustment of status under subsection (a).

10 ‘‘(6) INELIGIBILITY.—

11 ‘‘(A) IN GENERAL.—An alien is ineligible

12 for adjustment to lawful permanent resident

13 status under this section if—

14 ‘‘(i) the alien has been ordered re15 moved from the United States—

16 ‘‘(I) for overstaying the period of

17 authorized admission under section

18 217;

19 ‘‘(II) under section 235 or 238;

20 or

21 ‘‘(III) pursuant to a final order

22 of removal under section 240;

23 ‘‘(ii) the alien failed to depart the

24 United States during the period of a vol-
†

467

S 2611 ES

1 untary departure order issued under sec2 tion 240B;

3 ‘‘(iii) the alien is subject to section

4 241(a)(5);

5 ‘‘(iv) the Secretary of Homeland Secu6 rity determines that—

7 ‘‘(I) the alien, having been con8 victed by a final judgment of a serious

9 crime, constitutes a danger to the

10 community of the United States;

11 ‘‘(II) there are reasonable

12 grounds for believing that the alien

13 has committed a serious crime outside

14 the United States prior to the arrival

15 of the alien in the United States; or

16 ‘‘(III) there are reasonable

17 grounds for regarding the alien as a

18 danger to the security of the United

19 States; or

20 ‘‘(v) the alien has been convicted of a

21 felony or 3 or more misdemeanors.

22 ‘‘(B) EXCEPTION.—Notwithstanding sub23 paragraph (A), an alien who has not been or24 dered removed from the United States shall re25 main eligible for adjustment to lawful perma-
†

468

S 2611 ES

1 nent resident status under this section if the

2 alien’s ineligibility under subparagraph (A) is

3 solely related to the alien’s—

4 ‘‘(i) entry into the United States with5 out inspection;

6 ‘‘(ii) remaining in the United States

7 beyond the period of authorized admission;

8 or

9 ‘‘(iii) failure to maintain legal status

10 while in the United States.

11 ‘‘(C) WAIVER.—The Secretary may, in the

12 Secretary’s sole and unreviewable discretion,

13 waive the application of subparagraph (A) if the

14 alien was ordered removed on the basis that the

15 alien—

16 ‘‘(i) entered without inspection;

17 ‘‘(ii) failed to maintain status; or

18 ‘‘(iii) was ordered removed under

19 212(a)(6)(C)(i) prior to April 7, 2006,

20 ‘‘and—

21 ‘‘(i) demonstrates that the alien did

22 not receive notice of removal proceedings

23 in accordance with paragraph (1) or (2) of

24 section 239(a); or
†

469

S 2611 ES

1 ‘‘(ii) establishes that the alien’s fail2 ure to appear was due to exceptional cir3 cumstances beyond the control of the alien;

4 or

5 ‘‘(iii) the alien’s departure from the

6 United States now would result in extreme

7 hardship to the alien’s spouse, parent, or

8 child who is a citizen of the United States

9 or an alien lawfully admitted for perma10 nent residence.

11 ‘‘(c) TREATMENT OF APPLICANTS.—

12 ‘‘(1) IN GENERAL.—An alien who files an appli13 cation under subsection (a)(1)(A) for adjustment of

14 status, including a spouse or child who files for ad15 justment of status under subsection (b)—

16 ‘‘(A) shall be granted employment author17 ization pending final adjudication of the alien’s

18 application for adjustment of status;

19 ‘‘(B) shall be granted permission to travel

20 abroad pursuant to regulation pending final ad21 judication of the alien’s application for adjust22 ment of status;

23 ‘‘(C) shall not be detained, determined in24 admissible or deportable, or removed pending

25 final adjudication of the alien’s application for
†

470

S 2611 ES

1 adjustment of status, unless the alien commits

2 an act which renders the alien ineligible for

3 such adjustment of status; and

4 ‘‘(D) shall not be considered an unauthor5 ized alien as defined in section 274A(i) until

6 such time as employment authorization under

7 subparagraph (A) is denied.

8 ‘‘(2) DOCUMENT OF AUTHORIZATION.—The

9 Secretary of Homeland Security shall provide each

10 alien described in paragraph (1) with a counterfeit11 resistant document of authorization that—

12 ‘‘(A) meets all current requirements estab13 lished by the Secretary of Homeland Security

14 for travel documents, including the require15 ments under section 403 of the Illegal Immigra16 tion Reform and Immigrant Responsibility Act

17 of 1996 (8 U.S.C. 1324a note); and

18 ‘‘(B) reflects the benefits and status set

19 forth in paragraph (1).

20 ‘‘(3) SECURITY AND LAW ENFORCEMENT

21 CLEARANCE.—Before an alien is granted employ22 ment authorization or permission to travel under

23 paragraph (1), the alien shall be required to undergo

24 a name check against existing databases for infor25 mation relating to criminal, national security, or
†

471

S 2611 ES

1 other law enforcement actions. The relevant Federal

2 agencies shall work to ensure that such name checks

3 are completed not later than 90 days after the date

4 on which the name check is requested.

5 ‘‘(4) TERMINATION OF PROCEEDINGS.—An

6 alien in removal proceedings who establishes prima

7 facie eligibility for adjustment of status under sub8 section (a) shall be entitled to termination of the

9 proceedings pending the outcome of the alien’s appli10 cation, unless the removal proceedings are based on

11 criminal or national security grounds.

12 ‘‘(e) CONFIDENTIALITY OF INFORMATION.—

13 ‘‘(1) IN GENERAL.—Except as otherwise pro14 vided in this section, no Federal agency or bureau,

15 nor any officer or employee of such agency or bu16 reau, may—

17 ‘‘(A) use the information furnished by the

18 applicant pursuant to an application filed under

19 paragraph (1) or (2) of subsection (a) for any

20 purpose other than to make a determination on

21 the application;

22 ‘‘(B) make any publication through which

23 the information furnished by any particular ap24 plicant can be identified; or
†

472

S 2611 ES

1 ‘‘(C) permit anyone other than the sworn

2 officers and employees of such agency, bureau,

3 or approved entity, as approved by the Sec4 retary of Homeland Security, to examine indi5 vidual applications that have been filed.

6 ‘‘(2) REQUIRED DISCLOSURES.—The Secretary

7 of Homeland Security and the Secretary of State

8 shall provide the information furnished pursuant to

9 an application filed under paragraph (1) or (2) of

10 subsection (a), and any other information derived

11 from such furnished information, to a duly recog12 nized law enforcement entity in connection with a

13 criminal investigation or prosecution or a national

14 security investigation or prosecution, in each in15 stance about an individual suspect or group of sus16 pects, when such information is requested in writing

17 by such entity.

18 ‘‘(3) CRIMINAL PENALTY.—Any person who

19 knowingly uses, publishes, or permits information to

20 be examined in violation of this subsection shall be

21 fined not more than $10,000.

22 ‘‘(f) PENALTIES FOR FALSE STATEMENTS IN APPLI23 CATIONS.—

24 ‘‘(1) CRIMINAL PENALTY.—
†

473

S 2611 ES

1 ‘‘(A) VIOLATION.—It shall be unlawful for

2 any person to—

3 ‘‘(i) file or assist in filing an applica4 tion for adjustment of status under this

5 section and knowingly and willfully falsify,

6 conceal, or cover up a material fact or

7 make any false, fictitious, or fraudulent

8 statements or representations, or make or

9 use any false writing or document knowing

10 the same to contain any false, fictitious, or

11 fraudulent statement or entry; or

12 ‘‘(ii) create or supply a false writing

13 or document for use in making such an ap14 plication.

15 ‘‘(B) PENALTY.—Any person who violates

16 subparagraph (A) shall be fined in accordance

17 with title 18, United States Code, or imprisoned

18 not more than 5 years, or both.

19 ‘‘(2) INADMISSIBILITY.—An alien who is con20 victed of a crime under paragraph (1) shall be con21 sidered to be inadmissible to the United States.

22 ‘‘(3) EXCEPTION.—Notwithstanding paragraphs

23 (1) and (2), any alien or other entity (including an

24 employer or union) that submits an employment

25 record that contains incorrect data that the alien
†

474

S 2611 ES

1 used in order to obtain such employment, shall not

2 have violated this subsection.

3 ‘‘(g) INELIGIBILITY FOR PUBLIC BENEFITS.—For

4 purposes of section 403 of the Personal Responsibility and

5 Work Opportunity Reconciliation Act of 1996 (8 U.S.C.

6 1613), an alien whose status has been adjusted in accord7 ance with subsection (a) shall not be eligible for any Fed8 eral means-tested public benefit unless the alien meets the

9 alien eligibility criteria for such benefit under title IV of

10 such Act (8 U.S.C. 1601 et seq.).

11 ‘‘(h) RELATIONSHIPS OF APPLICATION TO CERTAIN

12 ORDERS.—

13 ‘‘(1) IN GENERAL.—An alien who is present in

14 the United States and has been ordered excluded,

15 deported, removed, or to depart voluntarily from the

16 United States or is subject to reinstatement of re17 moval under any provision of this Act may, notwith18 standing such order, apply for adjustment of status

19 under subsection (a). Such an alien shall not be re20 quired, as a condition of submitting or granting such

21 application, to file a separate motion to reopen, re22 consider, or vacate the exclusion, deportation, re23 moval or voluntary departure order. If the Secretary

24 of Homeland Security grants the application, the

25 order shall be canceled. If the Secretary of Home-
†

475

S 2611 ES

1 land Security renders a final administrative decision

2 to deny the application, such order shall be effective

3 and enforceable. Nothing in this paragraph shall af4 fect the review or stay of removal under subsection

5 (j).

6 ‘‘(2) STAY OF REMOVAL.—The filing of an ap7 plication described in paragraph (1) shall stay the

8 removal or detainment of the alien pending final ad9 judication of the application, unless the removal or

10 detainment of the alien is based on criminal or na11 tional security grounds.

12 ‘‘(i) APPLICATION OF OTHER PROVISIONS.—Nothing

13 in this section shall preclude an alien who may be eligible

14 to be granted adjustment of status under subsection (a)

15 from seeking such status under any other provision of law

16 for which the alien may be eligible.

17 ‘‘(j) ADMINISTRATIVE AND JUDICIAL REVIEW.—

18 ‘‘(1) IN GENERAL.—Except as provided in this

19 subsection, there shall be no administrative or judi20 cial review of a determination respecting an applica21 tion for adjustment of status under subsection (a).

22 ‘‘(2) ADMINISTRATIVE REVIEW.—

23 ‘‘(A) SINGLE LEVEL OF ADMINISTRATIVE

24 APPELLATE REVIEW.—The Secretary of Home25 land Security shall establish an appellate au-
†

476

S 2611 ES

1 thority to provide for a single level of adminis2 trative appellate review of a determination re3 specting an application for adjustment of status

4 under subsection (a).

5 ‘‘(B) STANDARD FOR REVIEW.—Adminis6 trative appellate review referred to in subpara7 graph (A) shall be based solely upon the admin8 istrative record established at the time of the

9 determination on the application and upon the

10 presentation of additional or newly discovered

11 evidence during the time of the pending appeal.

12 ‘‘(3) JUDICIAL REVIEW.—

13 ‘‘(A) DIRECT REVIEW.—A person whose

14 application for adjustment of status under sub15 section (a) is denied after administrative appel16 late review under paragraph (2) may seek re17 view of such denial, in accordance with chapter

18 7 of title 5, United States Code, before the

19 United States district court for the district in

20 which the person resides.

21 ‘‘(B) REVIEW AFTER REMOVAL PRO22 CEEDINGS.—There shall be judicial review in

23 the Federal courts of appeal of the denial of an

24 application for adjustment of status under sub25 section (a) in conjunction with judicial review of
†

477

S 2611 ES

1 an order of removal, deportation, or exclusion,

2 but only if the validity of the denial has not

3 been upheld in a prior judicial proceeding under

4 subparagraph (A). Notwithstanding any other

5 provision of law, the standard for review of

6 such a denial shall be governed by subpara7 graph (C).

8 ‘‘(C) STANDARD FOR JUDICIAL REVIEW.—

9 Judicial review of a denial of an application

10 under this section shall be based solely upon the

11 administrative record established at the time of

12 the review. The findings of fact and other de13 terminations contained in the record shall be

14 conclusive unless the applicant can establish

15 abuse of discretion or that the findings are di16 rectly contrary to clear and convincing facts

17 contained in the record, considered as a whole.

18 ‘‘(4) STAY OF REMOVAL.—Aliens seeking ad19 ministrative or judicial review under this subsection

20 shall not be removed from the United States until a

21 final decision is rendered establishing ineligibility

22 under this section, unless such removal is based on

23 criminal or national security grounds.

24 ‘‘(k) DISSEMINATION OF INFORMATION ON ADJUST25 MENT PROGRAM.—During the 12 months following the
†

478

S 2611 ES

1 issuance of final regulations in accordance with subsection

2 (o), the Secretary of Homeland Security, in cooperation

3 with approved entities, approved by the Secretary of

4 Homeland Security, shall broadly disseminate information

5 respecting adjustment of status under this section and the

6 requirements to be satisfied to obtain such status. The

7 Secretary of Homeland Security shall also disseminate in8 formation to employers and labor unions to advise them

9 of the rights and protections available to them and to

10 workers who file applications under this section. Such in11 formation shall be broadly disseminated, in the languages

12 spoken by the top 15 source countries of the aliens who

13 would qualify for adjustment of status under this section,

14 including to television, radio, and print media such aliens

15 would have access to.

16 ‘‘(l) EMPLOYER PROTECTIONS.—

17 ‘‘(1) IMMIGRATION STATUS OF ALIEN.—Em18 ployers of aliens applying for adjustment of status

19 under this section shall not be subject to civil and

20 criminal tax liability relating directly to the employ21 ment of such alien.

22 ‘‘(2) PROVISION OF EMPLOYMENT RECORDS.—

23 Employers that provide unauthorized aliens with

24 copies of employment records or other evidence of

25 employment pursuant to an application for adjust-
†

479

S 2611 ES

1 ment of status under this section or any other appli2 cation or petition pursuant to other provisions of the

3 immigration laws, shall not be subject to civil and

4 criminal liability pursuant to section 274A for em5 ploying such unauthorized aliens.

6 ‘‘(3) APPLICABILITY OF OTHER LAW.—Nothing

7 in this subsection shall be used to shield an employer

8 from liability pursuant to section 274B or any other

9 labor and employment law provisions.

10 ‘‘(m) AUTHORIZATION OF FUNDS; FINES.—

11 ‘‘(1) AUTHORIZATION OF APPROPRIATIONS.—

12 There are authorized to be appropriated to the De13 partment of Homeland Security such sums as are

14 necessary to commence the processing of applica15 tions filed under this section.

16 ‘‘(2) FINE.—An alien who files an application

17 under this section shall pay a fine commensurate

18 with levels charged by the Department of Homeland

19 Security for other applications for adjustment of sta20 tus.

21 ‘‘(3) ADDITIONAL AMOUNTS OWED.—Prior to

22 the adjudication of an application for adjustment of

23 status filed under this section, the alien shall pay an

24 amount equaling $2,000, but such amount shall not

25 be required from an alien under the age of 18.
†

480

S 2611 ES

1 ‘‘(4) USE OF AMOUNTS COLLECTED.—The Sec2 retary of Homeland Security shall deposit payments

3 received under paragraphs (2) and (3) in the Immi4 gration Examinations Fee Account, and these pay5 ments in such account shall be available, without fis6 cal year limitation, such that—

7 ‘‘(A) 80 percent of such funds shall be

8 available to the Department of Homeland Secu9 rity for border security purposes;

10 ‘‘(B) 10 percent of such funds shall be

11 available to the Department of Homeland Secu12 rity for implementing and processing applica13 tions under this section; and

14 ‘‘(C) 10 percent of such funds shall be

15 available to the Department of Homeland Secu16 rity and the Department of State to cover ad17 ministrative and other expenses incurred in con18 nection with the review of applications filed by

19 immediate relatives of aliens applying for ad20 justment of status under this section.

21 ‘‘(5) STATE IMPACT ASSISTANCE FEE.—

22 ‘‘(A) IN GENERAL.—In addition to any

23 other amounts required to be paid under this

24 subsection, an alien shall submit, at the time
†

481

S 2611 ES

1 the alien files an application under this section,

2 a State impact assistance fee equal to—

3 ‘‘(i) $750 for the principal alien; and

4 ‘‘(ii) $100 for the spouse and each

5 child described in subsection (a)(2).

6 ‘‘(B) USE OF FEE.—The fees collected

7 under subparagraph (A) shall be deposited in

8 the State Impact Assistance Account estab9 lished under section 286(x).

10 ‘‘(n) MANDATORY DEPARTURE AND REENTRY.—Any

11 alien who was physically present in the United States on

12 January 7, 2004, who seeks to adjust status under this

13 section, but does not satisfy the requirements of subpara14 graph (B) or (D) of subsection (a)(1), shall be eligible to

15 depart the United States and to seek admission as a non16 immigrant or an immigrant alien described in section

17 245C.

18 ‘‘(o) ISSUANCE OF REGULATIONS.—Not later than

19 120 days after the date of enactment of the Immigrant

20 Accountability Act of 2006, the Secretary of Homeland

21 Security shall issue regulations to implement this sec22 tion.’’.

23 (2) TABLE OF CONTENTS.—The table of con24 tents (8 U.S.C. 1101 et seq.) is amended by insert-
†

482

S 2611 ES

1 ing after the item relating to section 245A the fol2 lowing:

‘‘245B. Access to Earned Adjustment.’’.

3 (c) MANDATORY DEPARTURE AND REENTRY.—

4 (1) IN GENERAL.—Chapter 5 of title II (8

5 U.S.C. 1255 et seq.), as amended by subsection

6 (b)(1), is further amended by inserting after section

7 245B the following:

8 ‘‘SEC. 245C. MANDATORY DEPARTURE AND REENTRY.

9 ‘‘(a) IN GENERAL.—The Secretary of Homeland Se10 curity may grant Deferred Mandatory Departure status

11 to aliens who are in the United States illegally to allow

12 such aliens time to depart the United States and to seek

13 admission as a nonimmigrant or immigrant alien.

14 ‘‘(b) REQUIREMENTS.—Notwithstanding section

15 244(h), an alien desiring an adjustment of status under

16 subsection (a) shall meet the following requirements:

17 ‘‘(1) PRESENCE.—The alien shall establish that

18 the alien—

19 ‘‘(A) was physically present in the United

20 States on January 7, 2004;

21 ‘‘(B) has been continuously in the United

22 States since such date, except for brief, casual,

23 and innocent departures; and
†

483

S 2611 ES

1 ‘‘(C) was not legally present in the United

2 States on that date under any classification set

3 forth in section 101(a)(15).

4 ‘‘(2) EMPLOYMENT.—

5 ‘‘(A) IN GENERAL.—The alien shall estab6 lish that the alien—

7 ‘‘(i) was employed in the United

8 States, whether full time, part time, sea9 sonally, or self-employed, before January

10 7, 2004; and

11 ‘‘(ii) has been continuously employed

12 in the United States since that date, ex13 cept for brief periods of unemployment

14 lasting not longer than 60 days.

15 ‘‘(B) EVIDENCE OF EMPLOYMENT.—

16 ‘‘(i) IN GENERAL.—An alien may con17 clusively establish employment status in

18 compliance with subparagraph (A) by sub19 mitting to the Secretary of Homeland Se20 curity records demonstrating such employ21 ment maintained by—

22 ‘‘(I) the Social Security Adminis23 tration, Internal Revenue Service, or

24 by any other Federal, State, or local

25 government agency;
†

484

S 2611 ES

1 ‘‘(II) an employer; or

2 ‘‘(III) a labor union, day labor

3 center, or an organization that assists

4 workers in matters related to employ5 ment.

6 ‘‘(ii) OTHER DOCUMENTS.—An alien

7 who is unable to submit a document de8 scribed in subclauses (I) through (III) of

9 clause (i) may satisfy the requirement in

10 subparagraph (A) by submitting to the

11 Secretary at least 2 other types of reliable

12 documents that provide evidence of em13 ployment, including—

14 ‘‘(I) bank records;

15 ‘‘(II) business records;

16 ‘‘(III) sworn affidavits from non17 relatives who have direct knowledge of

18 the alien’s work, including the name,

19 address, and phone number of the af20 fiant, the nature and duration of the

21 relationship between the affiant and

22 the alien, and other verification infor23 mation; or

24 ‘‘(IV) remittance records.
†

485

S 2611 ES

1 ‘‘(iii) INTENT OF CONGRESS.—It is

2 the intent of Congress that the require3 ment in this subsection be interpreted and

4 implemented in a manner that recognizes

5 and takes into account the difficulties en6 countered by aliens in obtaining evidence

7 of employment due to the undocumented

8 status of the alien.

9 ‘‘(iv) BURDEN OF PROOF.—An alien

10 who is applying for adjustment of status

11 under this section has the burden of prov12 ing by a preponderance of the evidence

13 that the alien has satisfied the require14 ments of this subsection. An alien may

15 meet such burden of proof by producing

16 sufficient evidence to demonstrate such

17 employment as a matter of reasonable in18 ference.

19 ‘‘(C) EXEMPTION.—The employment re20 quirement under subparagraph (A) shall not

21 apply to any individual who is 65 years of age

22 or older on the date of the enactment of the

23 Immigrant Accountability Act of 2006.

24 ‘‘(3) ADMISSIBILITY.—
†

486

S 2611 ES

1 ‘‘(A) IN GENERAL.—The alien shall estab2 lish that such alien—

3 ‘‘(i) is admissible to the United

4 States, except as provided as in (B); and

5 ‘‘(ii) has not assisted in the persecu6 tion of any person or persons on account

7 of race, religion, nationality, membership

8 in a particular social group, or political

9 opinion.

10 ‘‘(B) GROUNDS NOT APPLICABLE.—The

11 provisions of paragraphs (5), (6)(A), (7), and

12 (9)(B) of section 212(a) shall not apply.

13 ‘‘(C) WAIVER.—The Secretary of Home14 land Security may waive any other provision of

15 section 212(a), or a ground of ineligibility

16 under paragraph (4), in the case of individual

17 aliens for humanitarian purposes, to assure

18 family unity, or when it is otherwise in the pub19 lic interest.

20 ‘‘(4) INELIGIBILITY.—

21 ‘‘(A) IN GENERAL.—The alien is ineligible

22 for Deferred Mandatory Departure status if the

23 alien—

24 ‘‘(i) has been ordered removed from

25 the United States—
†

487

S 2611 ES

1 ‘‘(I) for overstaying the period of

2 authorized admission under section

3 217;

4 ‘‘(II) under section 235 or 238;

5 or

6 ‘‘(III) pursuant to a final order

7 of removal under section 240;

8 ‘‘(ii) the alien failed to depart the

9 United States during the period of a vol10 untary departure order issued under sec11 tion 240B;

12 ‘‘(iii) the alien is subject to section

13 241(a)(5);

14 ‘‘(iv) the Secretary of Homeland Secu15 rity determines that—

16 ‘‘(I) the alien, having been con17 victed by a final judgment of a serious

18 crime, constitutes a danger to the

19 community of the United States;

20 ‘‘(II) there are reasonable

21 grounds for believing that the alien

22 has committed a serious crime outside

23 the United States prior to the arrival

24 of the alien in the United States; or
†

488

S 2611 ES

1 ‘‘(III) there are reasonable

2 grounds for regarding the alien as a

3 danger to the security of the United

4 States; or

5 ‘‘(v) the alien has been convicted of a

6 felony or 3 or more misdemeanors.

7 ‘‘(B) EXCEPTION.—Notwithstanding sub8 paragraph (A), an alien who has not been or9 dered removed from the United States shall re10 main eligible for adjustment to lawful perma11 nent resident status under this section if the

12 alien’s ineligibility under subparagraph (A) is

13 solely related to the alien’s—

14 ‘‘(i) entry into the United States with15 out inspection;

16 ‘‘(ii) remaining in the United States

17 beyond the period of authorized admission;

18 or

19 ‘‘(iii) failure to maintain legal status

20 while in the United States.

21 ‘‘(C) WAIVER.—The Secretary may, in the

22 Secretary’s sole and unreviewable discretion,

23 waive the application of subparagraph (A) if the

24 alien was ordered removed on the basis that the

25 alien—
†

489

S 2611 ES

1 ‘‘(i) entered without inspection;

2 ‘‘(ii) failed to maintain status; or

3 ‘‘(iii) was ordered removed under

4 212(a)(6)(C)(i) prior to April 7, 2006,

5 ‘‘and—

6 ‘‘(i) demonstrates that the alien did

7 not receive notice of removal proceedings

8 in accordance with paragraph (1) or (2) of

9 section 239(a); or

10 ‘‘(ii) establishes that the alien’s fail11 ure to appear was due to exceptional cir12 cumstances beyond the control of the alien;

13 or

14 ‘‘(iii) the alien’s departure from the

15 United States now would result in extreme

16 hardship to the alien’s spouse, parent, or

17 child who is a citizen of the United States

18 or an alien lawfully admitted for perma19 nent residence.

20 ‘‘(5) MEDICAL EXAMINATION.—The alien may

21 be required, at the alien’s expense, to undergo such

22 a medical examination (including a determination of

23 immunization status) as is appropriate and conforms

24 to generally accepted professional standards of med25 ical practice.
†

490

S 2611 ES

1 ‘‘(6) TERMINATION.—The Secretary of Home2 land Security may terminate an alien’s Deferred

3 Mandatory Departure status if—

4 ‘‘(A) the Secretary of Homeland Security

5 determines that the alien was not in fact eligi6 ble for such status; or

7 ‘‘(B) the alien commits an act that makes

8 the alien removable from the United States.

9 ‘‘(7) APPLICATION CONTENT AND WAIVER.—

10 ‘‘(A) APPLICATION FORM.—The Secretary

11 of Homeland Security shall create an applica12 tion form that an alien shall be required to

13 complete as a condition of obtaining Deferred

14 Mandatory Departure status.

15 ‘‘(B) CONTENT.—In addition to any other

16 information that the Secretary requires to de17 termine an alien’s eligibility for Deferred Man18 datory Departure, the Secretary shall require

19 an alien to answer questions concerning the

20 alien’s physical and mental health, criminal his21 tory, gang membership, renunciation of gang

22 affiliation, immigration history, involvement

23 with groups or individuals that have engaged in

24 terrorism, genocide, persecution, or who seek

25 the overthrow of the United States Government,
†

491

S 2611 ES

1 voter registration history, claims to United

2 States citizenship, and tax history.

3 ‘‘(C) WAIVER.—The Secretary of Home4 land Security shall require an alien to include

5 with the application a waiver of rights that ex6 plains to the alien that, in exchange for the dis7 cretionary benefit of obtaining Deferred Manda8 tory Departure status, the alien agrees to waive

9 any right to judicial review or to contest any re10 moval action, other than on the basis of an ap11 plication for asylum or restriction of removal

12 pursuant to the provisions contained in section

13 208 or 241(b)(3), or under the Convention

14 Against Torture and Other Cruel, Inhuman or

15 Degrading Treatment or Punishment, done at

16 New York December 10, 1984, or cancellation

17 of removal pursuant to section 240A(a).

18 ‘‘(D) KNOWLEDGE.—The Secretary of

19 Homeland Security shall require an alien to in20 clude with the application a signed certification

21 in which the alien certifies that the alien has

22 read and understood all of the questions and

23 statements on the application form, and that

24 the alien certifies under penalty of perjury

25 under the laws of the United States that the
†

492

S 2611 ES

1 application, and any evidence submitted with it,

2 are all true and correct, and that the applicant

3 authorizes the release of any information con4 tained in the application and any attached evi5 dence for law enforcement purposes.

6 ‘‘(c) IMPLEMENTATION AND APPLICATION TIME PE7 RIODS.—

8 ‘‘(1) IN GENERAL.—The Secretary of Homeland

9 Security shall ensure that the application process is

10 secure and incorporates antifraud protection. The

11 Secretary of Homeland Security shall interview an

12 alien to determine eligibility for Deferred Mandatory

13 Departure status and shall utilize biometric authen14 tication at time of document issuance.

15 ‘‘(2) INITIAL RECEIPT OF APPLICATIONS.—The

16 Secretary of Homeland Security shall begin accept17 ing applications for Deferred Mandatory Departure

18 status not later than 3 months after the date on

19 which the application form is first made available.

20 ‘‘(3) APPLICATION.—An alien must submit an

21 initial application for Deferred Mandatory Depar22 ture status not later than 6 months after the date

23 on which the application form is first made avail24 able. An alien that fails to comply with this require25 ment is ineligible for Deferred Mandatory Departure
†

493

S 2611 ES

1 status. The provisions under subsections (e) and (f)

2 of section 245B shall apply to applications filed

3 under this section.

4 ‘‘(4) COMPLETION OF PROCESSING.—The Sec5 retary of Homeland Security shall ensure that all

6 applications for Deferred Mandatory Departure sta7 tus are processed not later than 12 months after the

8 date on which the application form is first made

9 available.

10 ‘‘(d) SECURITY AND LAW ENFORCEMENT BACK11 GROUND CHECKS.—An alien may not be granted Deferred

12 Mandatory Departure status unless the alien submits bio13 metric data in accordance with procedures established by

14 the Secretary of Homeland Security. The Secretary of

15 Homeland Security may not grant Deferred Mandatory

16 Departure status until all appropriate background checks

17 are completed to the satisfaction of the Secretary of

18 Homeland Security.

19 ‘‘(e) ACKNOWLEDGMENT.—

20 ‘‘(1) IN GENERAL.—An alien who applies for

21 Deferred Mandatory Departure status shall submit

22 to the Secretary of Homeland Security—

23 ‘‘(A) an acknowledgment made in writing

24 and under oath that the alien—
†

494

S 2611 ES

1 ‘‘(i) is unlawfully present in the

2 United States and subject to removal or

3 deportation, as appropriate, under this

4 Act; and

5 ‘‘(ii) understands the terms of the

6 terms of Deferred Mandatory Departure;

7 ‘‘(B) any Social Security account number

8 or card in the possession of the alien or relied

9 upon by the alien;

10 ‘‘(C) any false or fraudulent documents in

11 the alien’s possession.

12 ‘‘(2) USE OF INFORMATION.—None of the doc13 uments or other information provided in accordance

14 with paragraph (1) may be used in a criminal pro15 ceeding against the alien providing such documents

16 or information.

17 ‘‘(f) MANDATORY DEPARTURE.—

18 ‘‘(1) IN GENERAL.—The Secretary of Homeland

19 Security shall grant Deferred Mandatory Departure

20 status to an alien who meets the requirements of

21 this section for a period not to exceed 3 years.

22 ‘‘(2) REGISTRATION AT TIME OF DEPAR23 TURE.—An alien granted Deferred Mandatory De24 parture shall—
†

495

S 2611 ES

1 ‘‘(A) depart from the United States before

2 the expiration of the period of Deferred Manda3 tory Departure status;

4 ‘‘(B) register with the Secretary of Home5 land Security at the time of departure; and

6 ‘‘(C) surrender any evidence of Deferred

7 Mandatory Departure status at the time of de8 parture.

9 ‘‘(3) APPLICATION FOR READMISSION.—

10 ‘‘(A) IN GENERAL.—An alien under this

11 section may apply for admission to the United

12 States as an immigrant or nonimmigrant while

13 in the United States or from any location out14 side of the United States, but may not be

15 granted admission until the alien has departed

16 from the United States in accordance with

17 paragraph (2).

18 ‘‘(B) APPROVAL.—The Secretary may ap19 prove an application under subparagraph (A)

20 during the period in which the alien is present

21 in the United States under Deferred Mandatory

22 Departure status.

23 ‘‘(C) US–VISIT.—An alien in Deferred

24 Mandatory Departure status who is seeking ad25 mission as a nonimmigrant or immigrant alien
†

496

S 2611 ES

1 may exit the United States and immediately re2 enter the United States at any land port of

3 entry at which the US–VISIT exit and entry

4 system can process such alien for admission

5 into the United States.

6 ‘‘(D) INTERVIEW REQUIREMENTS.—Not7 withstanding any other provision of law, any

8 admission requirement involving in-person

9 interviews at a consulate of the United States

10 shall be waived for aliens granted Deferred

11 Mandatory Departure status under this section.

12 ‘‘(E) WAIVER OF NUMERICAL LIMITA13 TIONS.—The numerical limitations under sec14 tion 214 shall not apply to any alien who is ad15 mitted as a nonimmigrant under this para16 graph.

17 ‘‘(4) EFFECT OF READMISSION ON SPOUSE OR

18 CHILD.—The spouse or child of an alien granted De19 ferred Mandatory Departure and subsequently

20 granted an immigrant or nonimmigrant visa before

21 departing the United States shall be—

22 ‘‘(A) deemed to have departed under this

23 section upon the successful admission of the

24 principal alien; and
†

497

S 2611 ES

1 ‘‘(B) eligible for the derivative benefits as2 sociated with the immigrant or nonimmigrant

3 visa granted to the principal alien without re4 gard to numerical caps related to such visas.

5 ‘‘(5) WAIVERS.—The Secretary of Homeland

6 Security may waive the departure requirement under

7 this subsection if the alien—

8 ‘‘(A) is granted an immigrant or non9 immigrant visa; and

10 ‘‘(B) can demonstrate that the departure

11 of the alien would create a substantial hardship

12 on the alien or an immediate family member of

13 the alien.

14 ‘‘(6) RETURN IN LEGAL STATUS.—An alien who

15 complies with the terms of Deferred Mandatory De16 parture status and who departs before the expiration

17 of such status—

18 ‘‘(A) shall not be subject to section

19 212(a)(9)(B);

20 ‘‘(B) if otherwise eligible, may immediately

21 seek admission as a nonimmigrant or immi22 grant; and

23 ‘‘(C) is eligible to be employed by an em24 ployer in the United States regardless of wheth-
†

498

S 2611 ES

1 er the employer has complied with the require2 ments of section 218B(b)(7).

3 ‘‘(7) FAILURE TO DEPART.—An alien who fails

4 to depart the United States prior to the expiration

5 of Mandatory Deferred Departure status is not eligi6 ble and may not apply for or receive any immigra7 tion relief or benefit under this Act or any other law

8 for a period of 10 years, with the exception of sec9 tion 208 or 241(b)(3) or the Convention Against

10 Torture and Other Cruel, Inhuman or Degrading

11 Treatment or Punishment, done at New York De12 cember 10, 1984, in the case of an alien who indi13 cates either an intention to apply for asylum under

14 section 208 or a fear of persecution or torture.

15 ‘‘(8) PENALTIES FOR DELAYED DEPARTURE.—

16 An alien who fails to depart immediately shall be

17 subject to—

18 ‘‘(A) no fine if the alien departs not later

19 than 1 year after the grant of Deferred Manda20 tory Departure;

21 ‘‘(B) a fine of $2,000 if the alien does not

22 depart within 2 years after the grant of De23 ferred Mandatory Departure; and
†

499

S 2611 ES

1 ‘‘(C) a fine of $3,000 if the alien does not

2 depart within 3 years after the grant of De3 ferred Mandatory Departure.

4 ‘‘(g) EVIDENCE OF DEFERRED MANDATORY DEPAR5 TURE STATUS.—Evidence of Deferred Mandatory Depar6 ture status shall be machine-readable and tamper-resist7 ant, shall allow for biometric authentication, and shall

8 comply with the requirements under section 403 of the

9 Illegal Immigration Reform and Immigrant Responsibility

10 Act of 1996 (8 U.S.C. 1324a note). The Secretary of

11 Homeland Security is authorized to incorporate inte12 grated-circuit technology into the document. The Sec13 retary of Homeland Security shall consult with the Foren14 sic Document Laboratory in designing the document. The

15 document may serve as a travel, entry, and work author16 ization document during the period of its validity. The

17 document may be accepted by an employer as evidence of

18 employment authorization and identity under section

19 274A(c).

20 ‘‘(h) TERMS OF STATUS.—

21 ‘‘(1) REPORTING.—During the period of De22 ferred Mandatory Departure, an alien shall comply

23 with all registration requirements under section 264.

24 ‘‘(2) TRAVEL.—
†

500

S 2611 ES

1 ‘‘(A) An alien granted Deferred Mandatory

2 Departure is not subject to section 212(a)(9)

3 for any unlawful presence that occurred prior to

4 the Secretary of Homeland Security granting

5 the alien Deferred Mandatory Departure status.

6 ‘‘(B) Under regulations established by the

7 Secretary of Homeland Security, an alien grant8 ed Deferred Mandatory Departure—

9 ‘‘(i) may travel outside of the United

10 States and may be readmitted if the period

11 of Deferred Mandatory Departure status

12 has not expired; and

13 ‘‘(ii) must establish at the time of ap14 plication for admission that the alien is ad15 missible under section 212.

16 ‘‘(C) EFFECT ON PERIOD OF AUTHORIZED

17 ADMISSION.—Time spent outside the United

18 States under subparagraph (B) shall not extend

19 the period of Deferred Mandatory Departure

20 status.

21 ‘‘(3) BENEFITS.—During the period in which

22 an alien is granted Deferred Mandatory Departure

23 under this section—

24 ‘‘(A) the alien shall not be considered to be

25 permanently residing in the United States
†

501

S 2611 ES

1 under the color of law and shall be treated as

2 a nonimmigrant admitted under section 214;

3 and

4 ‘‘(B) the alien may be deemed ineligible for

5 public assistance by a State (as defined in sec6 tion 101(a)(36)) or any political subdivision

7 thereof which furnishes such assistance.

8 ‘‘(i) PROHIBITION ON CHANGE OF STATUS OR AD9 JUSTMENT OF STATUS.—

10 ‘‘(1) IN GENERAL.—Before leaving the United

11 States, an alien granted Deferred Mandatory Depar12 ture status may not apply to change status under

13 section 248.

14 ‘‘(2) ADJUSTMENT OF STATUS.—An alien may

15 not adjust to an immigrant classification under this

16 section until after the earlier of—

17 ‘‘(A) the consideration of all applications

18 filed under section 201, 202, or 203 before the

19 date of enactment of this section; or

20 ‘‘(B) 8 years after the date of enactment

21 of this section.

22 ‘‘(j) APPLICATION FEE.—

23 ‘‘(1) IN GENERAL.—An alien seeking a grant of

24 Deferred Mandatory Departure status shall submit,
†

502

S 2611 ES

1 in addition to any other fees authorized by law, an

2 application fee of $1,000.

3 ‘‘(2) USE OF FEE.—The fees collected under

4 paragraph (1) shall be available for use by the Sec5 retary of Homeland Security for activities to iden6 tify, locate, or remove illegal aliens.

7 ‘‘(3) STATE IMPACT ASSISTANCE FEE.—

8 ‘‘(A) IN GENERAL.—In addition to any

9 other amounts required to be paid under this

10 subsection, an alien seeking Deferred Manda11 tory Departure status shall submit, at the time

12 the alien files an application under this section,

13 a State impact assistance fee equal to $750.

14 ‘‘(B) USE OF FEE.—The fees collected

15 under subparagraph (A) shall be deposited in

16 the State Impact Assistance Account estab17 lished under section 286(x).

18 ‘‘(k) FAMILY MEMBERS.—

19 ‘‘(1) IN GENERAL.—Subject to subsection

20 (f)(4), the spouse or child of an alien granted De21 ferred Mandatory Departure status is subject to the

22 same terms and conditions as the principal alien.

23 ‘‘(2) APPLICATION FEE.—

24 ‘‘(A) IN GENERAL.—The spouse or child of

25 an alien seeking Deferred Mandatory Departure
†

503

S 2611 ES

1 status shall submit, in addition to any other fee

2 authorized by law, an additional fee of $500.

3 ‘‘(B) USE OF FEE.—The fees collected

4 under subparagraph (A) shall be available for

5 use by the Secretary of Homeland Security for

6 activities to identify, locate, or remove aliens

7 who are removable under section 237.

8 ‘‘(3) STATE IMPACT ASSISTANCE FEE.—

9 ‘‘(A) IN GENERAL.—In addition to any

10 other amounts required to be paid under this

11 subsection, the spouse and each child of an

12 alien seeking Deferred Mandatory Departure

13 status shall submit a State impact assistance

14 fee equal to $100.

15 ‘‘(B) USE OF FEE.—The fees collected

16 under subparagraph (A) shall be deposited in

17 the State Impact Assistance Account estab18 lished under section 286(x).

19 ‘‘(l) EMPLOYMENT.—

20 ‘‘(1) IN GENERAL.—An alien who has applied

21 for or has been granted Deferred Mandatory Depar22 ture status may be employed in the United States.

23 ‘‘(2) CONTINUOUS EMPLOYMENT.—An alien

24 granted Deferred Mandatory Departure status must

25 be employed while in the United States. An alien
†

504

S 2611 ES

1 who fails to be employed for 60 days is ineligible for

2 hire until the alien has departed the United States

3 and reentered. The Secretary of Homeland Security

4 may reauthorize an alien for employment without re5 quiring the alien’s departure from the United States.

6 ‘‘(m) ENUMERATION OF SOCIAL SECURITY NUM7 BER.—The Secretary of Homeland Security, in coordina8 tion with the Commissioner of the Social Security system,

9 shall implement a system to allow for the enumeration of

10 a Social Security number and production of a Social Secu11 rity card at the time the Secretary of Homeland Security

12 grants an alien Deferred Mandatory Departure status.

13 ‘‘(n) PENALTIES FOR FALSE STATEMENTS IN APPLI14 CATION FOR DEFERRED MANDATORY DEPARTURE.—

15 ‘‘(1) CRIMINAL PENALTY.—

16 ‘‘(A) VIOLATION.—It shall be unlawful for

17 any person—

18 ‘‘(i) to file or assist in filing an appli19 cation for adjustment of status under this

20 section and knowingly and willfully falsify,

21 misrepresent, conceal, or cover up a mate22 rial fact or make any false, fictitious, or

23 fraudulent statements or representations,

24 or make or use any false writing or docu25 ment knowing the same to contain any
†

505

S 2611 ES

1 false, fictitious, or fraudulent statement or

2 entry; or

3 ‘‘(ii) to create or supply a false writ4 ing or document for use in making such an

5 application.

6 ‘‘(B) PENALTY.—Any person who violates

7 subparagraph (A) shall be fined in accordance

8 with title 18, United States Code, imprisoned

9 not more than 5 years, or both.

10 ‘‘(2) INADMISSIBILITY.—An alien who is con11 victed of a crime under paragraph (1) shall be con12 sidered to be inadmissible to the United States on

13 the ground described in section 212(a)(6)(C)(i).

14 ‘‘(o) RELATION TO CANCELLATION OF REMOVAL.—

15 With respect to an alien granted Deferred Mandatory De16 parture status under this section, the period of such status

17 shall not be counted as a period of physical presence in

18 the United States for purposes of section 240A(a), unless

19 the Secretary of Homeland Security determines that ex20 treme hardship exists.

21 ‘‘(p) WAIVER OF RIGHTS.—An alien is not eligible

22 for Deferred Mandatory Departure status, unless the alien

23 has waived any right under subsection (b)(7)(C), other

24 than on the basis of an application for asylum, restriction

25 of removal, or protection under the Convention Against
†

506

S 2611 ES

1 Torture and Other Cruel, Inhuman or Degrading Treat2 ment or Punishment, done at New York December 10,

3 1984, or cancellation of removal pursuant to section

4 240A(a), any action for deportation or removal of the alien

5 that is instituted against the alien subsequent to a grant

6 of Deferred Mandatory Departure status.

7 ‘‘(q) DENIAL OF DISCRETIONARY RELIEF.—The de8 termination of whether an alien is eligible for a grant of

9 Deferred Mandatory Departure status is solely within the

10 discretion of the Secretary of Homeland Security. Not11 withstanding any other provision of law, no court shall

12 have jurisdiction to review—

13 ‘‘(1) any judgment regarding the granting of

14 relief under this section; or

15 ‘‘(2) any other decision or action of the Sec16 retary of Homeland Security the authority for which

17 is specified under this section to be in the discretion

18 of the Secretary, other than the granting of relief

19 under section 208(a).

20 ‘‘(r) JUDICIAL REVIEW.—

21 ‘‘(1) LIMITATIONS ON RELIEF.—Without regard

22 to the nature of the action or claim and without re23 gard to the identity of the party or parties bringing

24 the action, no court may—
†

507

S 2611 ES

1 ‘‘(A) enter declaratory, injunctive, or other

2 equitable relief in any action pertaining to—

3 ‘‘(i) an order or notice denying an

4 alien a grant of Deferred Mandatory De5 parture status or any other benefit arising

6 from such status; or

7 ‘‘(ii) an order of removal, exclusion, or

8 deportation entered against an alien after

9 a grant of Deferred Mandatory Departure

10 status; or

11 ‘‘(B) certify a class under Rule 23 of the

12 Federal Rules of Civil Procedure in any action

13 for which judicial review is authorized under a

14 subsequent paragraph of this subsection.

15 ‘‘(2) CHALLENGES TO VALIDITY.—

16 ‘‘(A) IN GENERAL.—Any right or benefit

17 not otherwise waived or limited pursuant this

18 section is available in an action instituted in the

19 United States District Court for the District of

20 Columbia, but shall be limited to determina21 tions of—

22 ‘‘(i) whether such section, or any reg23 ulation issued to implement such section,

24 violates the Constitution of the United

25 States; or
†

508

S 2611 ES

1 ‘‘(ii) whether such a regulation, or a

2 written policy directive, written policy

3 guideline, or written procedure issued by

4 or under the authority of the Secretary of

5 Homeland Security to implement such sec6 tion, is not consistent with applicable pro7 visions of this section or is otherwise in

8 violation of law.’’.

9 (2) TABLE OF CONTENTS.—The table of con10 tents (8 U.S.C. 1101 et seq.), as amended by this

11 subsection (b)(2), is further amended by inserting

12 after the item relating to section 245B the following:

‘‘245C. Mandatory Departure and Reentry.’’.

13 (3) CONFORMING AMENDMENT.—Section

14 237(a)(2)(A)(i)(II) (8 U.S.C. 1227(a)(2)(A)(i)(II))

15 is amended by inserting ‘‘(or 6 months in the case

16 of an alien granted Deferred Mandatory Departure

17 status under section 245C)’’ after ‘‘imposed’’.

18 (4) STATUTORY CONSTRUCTION.—Nothing in

19 this subsection, or any amendment made by this

20 subsection, shall be construed to create any sub21 stantive or procedural right or benefit that is legally

22 enforceable by any party against the United States

23 or its agencies or officers or any other person.

24 (5) AUTHORIZATION OF APPROPRIATIONS.—

25 There are authorized to be appropriated such
†

509

S 2611 ES

1 amounts as may be necessary for facilities, personnel

2 (including consular officers), training, technology,

3 and processing necessary to carry out the amend4 ments made by this subsection.

5 (d) CORRECTION OF SOCIAL SECURITY RECORDS.—

6 Section 208(e)(1) of the Social Security Act (42 U.S.C.

7 408(e)(1)) is amended—

8 (1) in subparagraph (B)(ii), by striking ‘‘or’’ at

9 the end;

10 (2) in subparagraph (C), by inserting ‘‘or’’ at

11 the end;

12 (3) by inserting after subparagraph (C) the fol13 lowing:

14 ‘‘(D) whose status is adjusted to that of

15 lawful permanent resident under section 245B

16 of the Immigration and Nationality Act,’’; and

17 (4) by striking ‘‘1990.’’ and inserting ‘‘1990, or

18 in the case of an alien described in subparagraph

19 (D), if such conduct is alleged to have occurred prior

20 to the date on which the alien became lawfully ad21 mitted for temporary residence.’’.

22 (e) STATE IMPACT ASSISTANCE ACCOUNT.—Section

23 286 (8 U.S.C. 1356) is amended by inserting after sub24 section (w) the following:

25 ‘‘(x) STATE IMPACT ASSISTANCE ACCOUNT.—
†

510

S 2611 ES

1 ‘‘(1) ESTABLISHMENT.—There is established in

2 the general fund of the Treasury a separate account,

3 which shall be known as the ‘State Impact Assist4 ance Account’.

5 ‘‘(2) SOURCE OF FUNDS.—Notwithstanding any

6 other provision under this Act, there shall be depos7 ited as offsetting receipts into the State Impact As8 sistance Account all State impact assistance fees col9 lected under section 245B(m)(5) and subsections

10 (j)(3) and (k)(3) of section 245C.

11 ‘‘(3) USE OF FUNDS.—Amounts deposited into

12 the State Impact Assistance Account may only be

13 used to carry out the State Impact Assistance Grant

14 Program established under paragraph (4).

15 ‘‘(4) STATE IMPACT ASSISTANCE GRANT PRO16 GRAM.—

17 ‘‘(A) ESTABLISHMENT.—The Secretary of

18 Health and Human Services, in consultation

19 with the Secretary of Education, shall establish

20 the State Impact Assistance Grant Program

21 (referred to in this section as the ‘Program’),

22 under which the Secretary may award grants to

23 States to provide health and education services

24 to noncitizens in accordance with this para25 graph.
†

511

S 2611 ES

1 ‘‘(B) STATE ALLOCATIONS.—The Sec2 retary of Health and Human Services shall an3 nually allocate the amounts available in the

4 State Impact Assistance Account among the

5 States as follows:

6 ‘‘(i) NONCITIZEN POPULATION.—

7 Eighty percent of such amounts shall be

8 allocated so that each State receives the

9 greater of—

10 ‘‘(I) $5,000,000; or

11 ‘‘(II) after adjusting for alloca12 tions under subclause (I), the percent13 age of the amount to be distributed

14 under this clause that is equal to the

15 noncitizen resident population of the

16 State divided by the noncitizen resi17 dent population of all States, based on

18 the most recent data available from

19 the Bureau of the Census.

20 ‘‘(ii) HIGH GROWTH RATES.—Twenty

21 percent of such amounts shall be allocated

22 among the 20 States with the largest

23 growth rates in noncitizen resident popu24 lation, as determined by the Secretary of

25 Health and Human Services, so that each
†

512

S 2611 ES

1 such State receives the percentage of the

2 amount distributed under this clause that

3 is equal to—

4 ‘‘(I) the growth rate in the non5 citizen resident population of the

6 State during the most recent 3-year

7 period for which data is available from

8 the Bureau of the Census; divided by

9 ‘‘(II) the average growth rate in

10 noncitizen resident population for the

11 20 States during such 3-year period.

12 ‘‘(iii) LEGISLATIVE APPROPRIA13 TIONS.—The use of grant funds allocated

14 to States under this paragraph shall be

15 subject to appropriation by the legislature

16 of each State in accordance with the terms

17 and conditions under this paragraph.

18 ‘‘(C) FUNDING FOR LOCAL GOVERN19 MENT.—

20 ‘‘(i) DISTRIBUTION CRITERIA.—Grant

21 funds received by States under this para22 graph shall be distributed to units of local

23 government based on need and function.

24 ‘‘(ii) MINIMUM DISTRIBUTION.—Ex25 cept as provided in clause (iii), a State
†

513

S 2611 ES

1 shall distribute not less than 30 percent of

2 the grant funds received under this para3 graph to units of local government not

4 later than 180 days after receiving such

5 funds.

6 ‘‘(iii) EXCEPTION.—If an eligible unit

7 of local government that is available to

8 carry out the activities described in sub9 paragraph (D) cannot be found in a State,

10 the State does not need to comply with

11 clause (ii).

12 ‘‘(iv) UNEXPENDED FUNDS.—Any

13 grant funds distributed by a State to a

14 unit of local government that remain unex15 pended as of the end of the grant period

16 shall revert to the State for redistribution

17 to another unit of local government.

18 ‘‘(D) USE OF FUNDS.—States and units of

19 local government shall use grant funds received

20 under this paragraph to provide health services,

21 educational services, and related services to

22 noncitizens within their jurisdiction directly, or

23 through contracts with eligible services pro24 viders, including—

25 ‘‘(i) health care providers;
†

514

S 2611 ES

1 ‘‘(ii) local educational agencies; and

2 ‘‘(iii) charitable and religious organi3 zations.

4 ‘‘(E) STATE DEFINED.—In this paragraph,

5 the term ‘State’ means each of the several

6 States of the United States, the District of Co7 lumbia, the Commonwealth of Puerto Rico, the

8 Virgin Islands, Guam, American Samoa, and

9 the Commonwealth of the Northern Mariana Is10 lands.

11 ‘‘(F) CERTIFICATION.—In order to receive

12 a payment under this section, the State shall

13 provide the Secretary of Health and Human

14 Services with a certification that the State’s

15 proposed uses of the fund are consistent with

16 (D).

17 ‘‘(G) ANNUAL REPORT.—The Secretary of

18 Health and Human Services shall inform the

19 States annually of the amount of funds avail20 able to each State under the Program.’’.
†

515

S 2611 ES

1 Subtitle B—Agricultural Job Op2 portunities, Benefits, and Secu3 rity

4 SEC. 611. SHORT TITLE.

5 This subtitle may be cited as the ‘‘Agricultural Job

6 Opportunities, Benefits, and Security Act of 2006’’ or the

7 ‘‘AgJOBS Act of 2006’’.

8 SEC. 612. DEFINITIONS.

9 In this subtitle:

10 (1) AGRICULTURAL EMPLOYMENT.—The term

11 ‘‘agricultural employment’’ means any service or ac12 tivity that is considered to be agricultural under sec13 tion 3(f) of the Fair Labor Standards Act of 1938

14 (29 U.S.C. 203(f)) or agricultural labor under sec15 tion 3121(g) of the Internal Revenue Code of 1986

16 (26 U.S.C. 3121(g)). For purposes of this para17 graph, agricultural employment includes employment

18 under section 101(a)(15)(H)(ii)(a) of the Immigra19 tion and Nationality Act (8 U.S.C.

20 1101(a)(15)(H)(ii)(a)).

21 (2) BLUE CARD STATUS.—The term ‘‘blue card

22 status’’ means the status of an alien who has been

23 lawfully admitted into the United States for tem24 porary residence under section 613(a).
†

516

S 2611 ES

1 (3) EMPLOYER.—The term ‘‘employer’’ means

2 any person or entity, including any farm labor con3 tractor and any agricultural association, that em4 ploys workers in agricultural employment.

5 (4) JOB OPPORTUNITY.—The term ‘‘job oppor6 tunity’’ means a job opening for temporary full-time

7 employment at a place in the United States to which

8 United States workers can be referred.

9 (5) TEMPORARY.—A worker is employed on a

10 ‘‘temporary’’ basis where the employment is in11 tended not to exceed 10 months.

12 (6) UNITED STATES WORKER.—The term

13 ‘‘United States worker’’ means any worker, whether

14 a United States citizen or national, a lawfully admit15 ted permanent resident alien, or any other alien,

16 who is authorized to work in the job opportunity

17 within the United States, except an alien admitted

18 or otherwise provided status under section

19 101(a)(15)(H)(ii)(a) of the Immigration and Nation20 ality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)).

21 (7) WORK DAY.—The term ‘‘work day’’ means

22 any day in which the individual is employed 5.75 or

23 more hours in agricultural employment.
†

517

S 2611 ES

1 CHAPTER 1—PILOT PROGRAM FOR

2 EARNED STATUS ADJUSTMENT OF AG3 RICULTURAL WORKERS

4 SEC. 613. AGRICULTURAL WORKERS.

5 (a) BLUE CARD PROGRAM.—

6 (1) IN GENERAL.—Notwithstanding any other

7 provision of law, the Secretary shall confer blue card

8 status upon an alien who qualifies under this sub9 section if the Secretary determines that the alien—

10 (A) has performed agricultural employment

11 in the United States for at least 863 hours or

12 150 work days during the 24-month period end13 ing on December 31, 2005;

14 (B) applied for such status during the 18-

15 month application period beginning on the first

16 day of the seventh month that begins after the

17 date of enactment of this Act; and

18 (C) is otherwise admissible to the United

19 States under section 212 of the Immigration

20 and Nationality Act (8 U.S.C. 1182), except as

21 otherwise provided under subsection (e)(2).

22 (2) AUTHORIZED TRAVEL.—An alien in blue

23 card status has the right to travel abroad (including

24 commutation from a residence abroad) in the same
†

518

S 2611 ES

1 manner as an alien lawfully admitted for permanent

2 residence.

3 (3) AUTHORIZED EMPLOYMENT.—An alien in

4 blue card status shall be provided an ‘‘employment

5 authorized’’ endorsement or other appropriate work

6 permit, in the same manner as an alien lawfully ad7 mitted for permanent residence.

8 (4) TERMINATION OF BLUE CARD STATUS.—

9 (A) IN GENERAL.—The Secretary may ter10 minate blue card status granted under this sub11 section only upon a determination under this

12 subtitle that the alien is deportable.

13 (B) GROUNDS FOR TERMINATION OF BLUE

14 CARD STATUS.—Before any alien becomes eligi15 ble for adjustment of status under subsection

16 (c), the Secretary may deny adjustment to per17 manent resident status and provide for termi18 nation of the blue card status granted such

19 alien under paragraph (1) if—

20 (i) the Secretary finds, by a prepon21 derance of the evidence, that the adjust22 ment to blue card status was the result of

23 fraud or willful misrepresentation (as de24 scribed in section 212(a)(6)(C)(i) of the
†

519

S 2611 ES

1 Immigration and Nationality Act (8 U.S.C.

2 1182(a)(6)(C)(i)); or

3 (ii) the alien—

4 (I) commits an act that makes

5 the alien inadmissible to the United

6 States as an immigrant, except as

7 provided under subsection (e)(2);

8 (II) is convicted of a felony or 3

9 or more misdemeanors committed in

10 the United States; or

11 (III) is convicted of an offense,

12 an element of which involves bodily in13 jury, threat of serious bodily injury,

14 or harm to property in excess of $500.

15 (5) RECORD OF EMPLOYMENT.—

16 (A) IN GENERAL.—Each employer of a

17 worker granted status under this subsection

18 shall annually—

19 (i) provide a written record of employ20 ment to the alien; and

21 (ii) provide a copy of such record to

22 the Secretary.

23 (B) SUNSET.—The obligation under sub24 paragraph (A) shall terminate on the date that
†

520

S 2611 ES

1 is 6 years after the date of the enactment of

2 this Act.

3 (6) REQUIRED FEATURES OF BLUE CARD.—The

4 Secretary shall provide each alien granted blue card

5 status and the spouse and children of each such

6 alien residing in the United States with a card that

7 contains—

8 (A) an encrypted, machine-readable, elec9 tronic identification strip that is unique to the

10 alien to whom the card is issued;

11 (B) biometric identifiers, including finger12 prints and a digital photograph; and

13 (C) physical security features designed to

14 prevent tampering, counterfeiting, or duplica15 tion of the card for fraudulent purposes.

16 (7) FINE.—An alien granted blue card status

17 shall pay a fine to the Secretary in an amount equal

18 to $100.

19 (8) MAXIMUM NUMBER.—The Secretary may

20 issue not more than 1,500,000 blue cards during the

21 5-year period beginning on the date of the enact22 ment of this Act.

23 (b) RIGHTS OF ALIENS GRANTED BLUE CARD STA24 TUS.—
†

521

S 2611 ES

1 (1) IN GENERAL.—Except as otherwise pro2 vided under this subsection, an alien in blue card

3 status shall be considered to be an alien lawfully ad4 mitted for permanent residence for purposes of any

5 law other than any provision of the Immigration and

6 Nationality Act (8 U.S.C. 1101 et seq.).

7 (2) DELAYED ELIGIBILITY FOR CERTAIN FED8 ERAL PUBLIC BENEFITS.—An alien in blue card sta9 tus shall not be eligible, by reason of such status, for

10 any form of assistance or benefit described in section

11 403(a) of the Personal Responsibility and Work Op12 portunity Reconciliation Act of 1996 (8 U.S.C.

13 1613(a)) until 5 years after the date on which the

14 Secretary confers blue card status upon that alien.

15 (3) TERMS OF EMPLOYMENT RESPECTING

16 ALIENS ADMITTED UNDER THIS SECTION.—

17 (A) PROHIBITION.—No alien granted blue

18 card status may be terminated from employ19 ment by any employer during the period of blue

20 card status except for just cause.

21 (B) TREATMENT OF COMPLAINTS.—

22 (i) ESTABLISHMENT OF PROCESS.—

23 The Secretary shall establish a process for

24 the receipt, initial review, and disposition

25 of complaints by aliens granted blue card
†

522

S 2611 ES

1 status who allege that they have been ter2 minated without just cause. No proceeding

3 shall be conducted under this subpara4 graph with respect to a termination unless

5 the Secretary determines that the com6 plaint was filed not later than 6 months

7 after the date of the termination.

8 (ii) INITIATION OF ARBITRATION.—If

9 the Secretary finds that a complaint has

10 been filed in accordance with clause (i) and

11 there is reasonable cause to believe that

12 the complainant was terminated without

13 just cause, the Secretary shall initiate

14 binding arbitration proceedings by request15 ing the Federal Mediation and Conciliation

16 Service to appoint a mutually agreeable ar17 bitrator from the roster of arbitrators

18 maintained by such Service for the geo19 graphical area in which the employer is lo20 cated. The procedures and rules of such

21 Service shall be applicable to the selection

22 of such arbitrator and to such arbitration

23 proceedings. The Secretary shall pay the

24 fee and expenses of the arbitrator, subject
†

523

S 2611 ES

1 to the availability of appropriations for

2 such purpose.

3 (iii) ARBITRATION PROCEEDINGS.—

4 The arbitrator shall conduct the pro5 ceeding in accordance with the policies and

6 procedures promulgated by the American

7 Arbitration Association applicable to pri8 vate arbitration of employment disputes.

9 The arbitrator shall make findings respect10 ing whether the termination was for just

11 cause. The arbitrator may not find that

12 the termination was for just cause unless

13 the employer so demonstrates by a prepon14 derance of the evidence. If the arbitrator

15 finds that the termination was not for just

16 cause, the arbitrator shall make a specific

17 finding of the number of days or hours of

18 work lost by the employee as a result of

19 the termination. The arbitrator shall have

20 no authority to order any other remedy, in21 cluding, but not limited to, reinstatement,

22 back pay, or front pay to the affected em23 ployee. Within 30 days from the conclusion

24 of the arbitration proceeding, the arbi25 trator shall transmit the findings in the
†

524

S 2611 ES

1 form of a written opinion to the parties to

2 the arbitration and the Secretary. Such

3 findings shall be final and conclusive, and

4 no official or court of the United States

5 shall have the power or jurisdiction to re6 view any such findings.

7 (iv) EFFECT OF ARBITRATION FIND8 INGS.—If the Secretary receives a finding

9 of an arbitrator that an employer has ter10 minated an alien granted blue card status

11 without just cause, the Secretary shall

12 credit the alien for the number of days or

13 hours of work lost for purposes of the re14 quirement of subsection (c)(1).

15 (v) TREATMENT OF ATTORNEY’S

16 FEES.—The parties shall bear the cost of

17 their own attorney’s fees involved in the

18 litigation of the complaint.

19 (vi) NONEXCLUSIVE REMEDY.—The

20 complaint process provided for in this sub21 paragraph is in addition to any other

22 rights an employee may have in accordance

23 with applicable law.

24 (vii) EFFECT ON OTHER ACTIONS OR

25 PROCEEDINGS.—Any finding of fact or
†

525

S 2611 ES

1 law, judgment, conclusion, or final order

2 made by an arbitrator in the proceeding

3 before the Secretary shall not be conclusive

4 or binding in any separate or subsequent

5 action or proceeding between the employee

6 and the employee’s current or prior em7 ployer brought before an arbitrator, admin8 istrative agency, court, or judge of any

9 State or the United States, regardless of

10 whether the prior action was between the

11 same or related parties or involved the

12 same facts, except that the arbitrator’s

13 specific finding of the number of days or

14 hours of work lost by the employee as a re15 sult of the employment termination may be

16 referred to the Secretary pursuant to

17 clause (iv).

18 (C) CIVIL PENALTIES.—

19 (i) IN GENERAL.—If the Secretary

20 finds, after notice and opportunity for a

21 hearing, that an employer of an alien

22 granted blue card status has failed to pro23 vide the record of employment required

24 under subsection (a)(5) or has provided a

25 false statement of material fact in such a
†

526

S 2611 ES

1 record, the employer shall be subject to a

2 civil money penalty in an amount not to

3 exceed $1,000 per violation.

4 (ii) LIMITATION.—The penalty appli5 cable under clause (i) for failure to provide

6 records shall not apply unless the alien has

7 provided the employer with evidence of em8 ployment authorization granted under this

9 section.

10 (c) ADJUSTMENT TO PERMANENT RESIDENCE.—

11 (1) AGRICULTURAL WORKERS.—

12 (A) IN GENERAL.—Except as provided in

13 subparagraph (B), the Secretary shall adjust

14 the status of an alien granted blue card status

15 to that of an alien lawfully admitted for perma16 nent residence if the Secretary determines that

17 the following requirements are satisfied:

18 (i) QUALIFYING EMPLOYMENT.—The

19 alien has performed at least—

20 (I) 5 years of agricultural em21 ployment in the United States, for at

22 least 100 work days or 575 hours, but

23 in no case less than 575 hours per

24 year, during the 5-year period begin-
†

527

S 2611 ES

1 ning on the date of the enactment of

2 this Act; or

3 (II) 3 years of agricultural em4 ployment in the United States, for at

5 least 150 work days or 863 hours, but

6 in no case less than 863 hours per

7 year, during the 5-year period begin8 ning on the date of the enactment of

9 this Act.

10 (ii) PROOF.—An alien may dem11 onstrate compliance with the requirement

12 under clause (i) by submitting—

13 (I) the record of employment de14 scribed in subsection (a)(5); or

15 (II) such documentation as may

16 be submitted under subsection (d)(3).

17 (iii) EXTRAORDINARY CIR18 CUMSTANCES.—In determining whether an

19 alien has met the requirement under clause

20 (i)(I), the Secretary may credit the alien

21 with not more than 12 additional months

22 to meet the requirement under clause (i) if

23 the alien was unable to work in agricul24 tural employment due to—
†

528

S 2611 ES

1 (I) pregnancy, injury, or disease,

2 if the alien can establish such preg3 nancy, disabling injury, or disease

4 through medical records;

5 (II) illness, disease, or other spe6 cial needs of a minor child, if the alien

7 can establish such illness, disease, or

8 special needs through medical records;

9 or

10 (III) severe weather conditions

11 that prevented the alien from engag12 ing in agricultural employment for a

13 significant period of time.

14 (iv) APPLICATION PERIOD.—The alien

15 applies for adjustment of status not later

16 than 7 years after the date of the enact17 ment of this Act.

18 (v) FINE.—The alien pays a fine to

19 the Secretary in an amount equal to $400.

20 (B) GROUNDS FOR DENIAL OF ADJUST21 MENT OF STATUS.—The Secretary may deny an

22 alien adjustment to permanent resident status,

23 and provide for termination of the blue card

24 status granted such alien, if—
†

529

S 2611 ES

1 (i) the Secretary finds by a prepon2 derance of the evidence that the adjust3 ment to blue card status was the result of

4 fraud or willful misrepresentation, as de5 scribed in section 212(a)(6)(C)(i) of the

6 Immigration and Nationality Act (8 U.S.C.

7 1182(a)(6)(C)(i)); or

8 (ii) the alien—

9 (I) commits an act that makes

10 the alien inadmissible to the United

11 States under section 212 of the Immi12 gration and Nationality Act (8 U.S.C.

13 1182), except as provided under sub14 section (e)(2);

15 (II) is convicted of a felony or 3

16 or more misdemeanors committed in

17 the United States; or

18 (III) is convicted of a single mis19 demeanor for which the actual sen20 tence served is 6 months or longer.

21 (C) GROUNDS FOR REMOVAL.—Any alien

22 granted blue card status who does not apply for

23 adjustment of status under this subsection be24 fore the expiration of the application period de25 scribed in subparagraph (A)(iv), or who fails to
†

530

S 2611 ES

1 meet the other requirements of subparagraph

2 (A) by the end of the applicable period, is de3 portable and may be removed under section 240

4 of the Immigration and Nationality Act (8

5 U.S.C. 1229a).

6 (D) PAYMENT OF TAXES.—

7 (i) IN GENERAL.—Not later than the

8 date on which an alien’s status is adjusted

9 under this subsection, the alien shall estab10 lish the payment of any applicable Federal

11 tax liability by establishing that—

12 (I) no such tax liability exists;

13 (II) all outstanding liabilities

14 have been paid; or

15 (III) the alien has entered into

16 an agreement for payment of all out17 standing liabilities with the Internal

18 Revenue Service.

19 (ii) APPLICABLE FEDERAL TAX LI20 ABILITY.—For purposes of clause (i), the

21 term ‘‘applicable Federal tax liability’’

22 means liability for Federal taxes, including

23 penalties and interest, owed for any year

24 during the period of employment required

25 under paragraph (1)(A) for which the stat-
†

531

S 2611 ES

1 utory period for assessment of any defi2 ciency for such taxes has not expired.

3 (iii) IRS COOPERATION.—The Sec4 retary of the Treasury shall establish rules

5 and procedures under which the Commis6 sioner of Internal Revenue shall provide

7 documentation to an alien upon request to

8 establish the payment of all taxes required

9 by this subparagraph.

10 (2) SPOUSES AND MINOR CHILDREN.—

11 (A) IN GENERAL.—Notwithstanding any

12 other provision of law, the Secretary shall con13 fer the status of lawful permanent resident on

14 the spouse and minor child of an alien granted

15 status under paragraph (1), including any indi16 vidual who was a minor child on the date such

17 alien was granted blue card status, if the

18 spouse or minor child applies for such status, or

19 if the principal alien includes the spouse or

20 minor child in an application for adjustment of

21 status to that of a lawful permanent resident.

22 (B) TREATMENT OF SPOUSES AND MINOR

23 CHILDREN BEFORE ADJUSTMENT OF STATUS.—

24 (i) REMOVAL.—The spouse and any

25 minor child of an alien granted blue card
†

532

S 2611 ES

1 status may not be removed while such

2 alien maintains such status, except as pro3 vided in subparagraph (C).

4 (ii) TRAVEL.—The spouse and any

5 minor child of an alien granted blue card

6 status may travel outside the United

7 States in the same manner as an alien law8 fully admitted for permanent residence.

9 (iii) EMPLOYMENT.—The spouse of an

10 alien granted blue card status may apply

11 to the Secretary for a work permit to au12 thorize such spouse to engage in any law13 ful employment in the United States while

14 such alien maintains blue card status.

15 (C) GROUNDS FOR DENIAL OF ADJUST16 MENT OF STATUS AND REMOVAL.—The Sec17 retary may deny an alien spouse or child ad18 justment of status under subparagraph (A) and

19 may remove such spouse or child under section

20 240 of the Immigration and Nationality Act (8

21 U.S.C. 1229a) if the spouse or child—

22 (i) commits an act that makes the

23 alien spouse or child inadmissible to the

24 United States under section 212 of such
†

533

S 2611 ES

1 Act (8 U.S.C. 1182), except as provided

2 under subsection (e)(2);

3 (ii) is convicted of a felony or 3 or

4 more misdemeanors committed in the

5 United States; or

6 (iii) is convicted of a single mis7 demeanor for which the actual sentence

8 served is 6 months or longer.

9 (d) APPLICATIONS.—

10 (1) TO WHOM MAY BE MADE.—The Secretary

11 shall provide that—

12 (A) applications for blue card status may

13 be filed—

14 (i) with the Secretary, but only if the

15 applicant is represented by an attorney or

16 a non-profit religious, charitable, social

17 service, or similar organization recognized

18 by the Board of Immigration Appeals

19 under section 292.2 of title 8, Code of

20 Federal Regulations; or

21 (ii) with a qualified designated entity

22 (designated under paragraph (2)), but only

23 if the applicant consents to the forwarding

24 of the application to the Secretary; and
†

534

S 2611 ES

1 (B) applications for adjustment of status

2 under subsection (c) shall be filed directly with

3 the Secretary.

4 (2) DESIGNATION OF ENTITIES TO RECEIVE AP5 PLICATIONS.—

6 (A) IN GENERAL.—For purposes of receiv7 ing applications under subsection (a), the

8 Secretary—

9 (i) shall designate qualified farm labor

10 organizations and associations of employ11 ers; and

12 (ii) may designate such other persons

13 as the Secretary determines are qualified

14 and have substantial experience, dem15 onstrate competence, and have traditional

16 long-term involvement in the preparation

17 and submission of applications for adjust18 ment of status under section 209, 210, or

19 245 of the Immigration and Nationality

20 Act, Public Law 89–732, Public Law 95–

21 145, or the Immigration Reform and Con22 trol Act of 1986.

23 (B) REFERENCES.—Organizations, asso24 ciations, and persons designated under subpara-
†

535

S 2611 ES

1 graph (A) are referred to in this subtitle as

2 ‘‘qualified designated entities’’.

3 (3) PROOF OF ELIGIBILITY.—

4 (A) IN GENERAL.—An alien may establish

5 that the alien meets the requirement of sub6 section (a)(1)(A) or (c)(1)(A) through govern7 ment employment records or records supplied

8 by employers or collective bargaining organiza9 tions, and other reliable documentation as the

10 alien may provide. The Secretary shall establish

11 special procedures to properly credit work in

12 cases in which an alien was employed under an

13 assumed name.

14 (B) DOCUMENTATION OF WORK HIS15 TORY.—

16 (i) BURDEN OF PROOF.—An alien ap17 plying for status under subsection (a)(1)

18 or (c)(1) has the burden of proving by a

19 preponderance of the evidence that the

20 alien has worked the requisite number of

21 hours or days (as required under sub22 section (a)(1)(A) or (c)(1)(A)).

23 (ii) TIMELY PRODUCTION OF

24 RECORDS.—If an employer or farm labor

25 contractor employing such an alien has
†

536

S 2611 ES

1 kept proper and adequate records respect2 ing such employment, the alien’s burden of

3 proof under clause (i) may be met by se4 curing timely production of those records

5 under regulations to be promulgated by the

6 Secretary.

7 (iii) SUFFICIENT EVIDENCE.—An

8 alien can meet the burden of proof under

9 clause (i) to establish that the alien has

10 performed the work described in subsection

11 (a)(1)(A) or (c)(1)(A) by producing suffi12 cient evidence to show the extent of that

13 employment as a matter of just and rea14 sonable inference.

15 (4) TREATMENT OF APPLICATIONS BY QUALI16 FIED DESIGNATED ENTITIES.—Each qualified des17 ignated entity shall agree to forward to the Sec18 retary applications filed with it in accordance with

19 paragraph (1)(A)(i)(II) but shall not forward to the

20 Secretary applications filed with it unless the appli21 cant has consented to such forwarding. No such en22 tity may make a determination required by this sec23 tion to be made by the Secretary. Upon the request

24 of the alien, a qualified designated entity shall assist
†

537

S 2611 ES

1 the alien in obtaining documentation of the work

2 history of the alien.

3 (5) LIMITATION ON ACCESS TO INFORMA4 TION.—Files and records prepared for purposes of

5 this subsection by qualified designated entities oper6 ating under this subsection are confidential and the

7 Secretary shall not have access to such files or

8 records relating to an alien without the consent of

9 the alien, except as allowed by a court order issued

10 pursuant to paragraph (6).

11 (6) CONFIDENTIALITY OF INFORMATION.—

12 (A) IN GENERAL.—Except as otherwise

13 provided in this subsection, neither the Sec14 retary, nor any other official or employee of the

15 Department, or a bureau or agency of the De16 partment, may—

17 (i) use the information furnished by

18 the applicant pursuant to an application

19 filed under this section, the information

20 provided to the applicant by a person des21 ignated under paragraph (2)(A), or any in22 formation provided by an employer or

23 former employer, for any purpose other

24 than to make a determination on the appli-
†

538

S 2611 ES

1 cation, or for enforcement of paragraph

2 (7);

3 (ii) make any publication whereby the

4 information furnished by any particular in5 dividual can be identified; or

6 (iii) permit anyone other than the

7 sworn officers and employees of the De8 partment, or a bureau or agency of the

9 Department, or, with respect to applica10 tions filed with a qualified designated enti11 ty, that qualified designated entity, to ex12 amine individual applications.

13 (B) REQUIRED DISCLOSURES.—The Sec14 retary shall provide the information furnished

15 under this section, or any other information de16 rived from such furnished information, to—

17 (i) a duly recognized law enforcement

18 entity in connection with a criminal inves19 tigation or prosecution, if such information

20 is requested in writing by such entity; or

21 (ii) an official coroner, for purposes of

22 affirmatively identifying a deceased indi23 vidual, whether or not the death of such

24 individual resulted from a crime.

25 (C) CONSTRUCTION.—
†

539

S 2611 ES

1 (i) IN GENERAL.—Nothing in this

2 paragraph shall be construed to limit the

3 use, or release, for immigration enforce4 ment purposes or law enforcement pur5 poses of information contained in files or

6 records of the Department pertaining to an

7 application filed under this section, other

8 than information furnished by an applicant

9 pursuant to the application, or any other

10 information derived from the application,

11 that is not available from any other source.

12 (ii) CRIMINAL CONVICTIONS.—Infor13 mation concerning whether the applicant

14 has at any time been convicted of a crime

15 may be used or released for immigration

16 enforcement or law enforcement purposes.

17 (D) CRIME.—Any person who knowingly

18 uses, publishes, or permits information to be ex19 amined in violation of this paragraph shall be

20 subject to a fine in an amount not to exceed

21 $10,000.

22 (7) PENALTIES FOR FALSE STATEMENTS IN AP23 PLICATIONS.—

24 (A) CRIMINAL PENALTY.—Any person

25 who—
†

540

S 2611 ES

1 (i) files an application for status

2 under subsection (a) or (c) and knowingly

3 and willfully falsifies, conceals, or covers

4 up a material fact or makes any false, fic5 titious, or fraudulent statements or rep6 resentations, or makes or uses any false

7 writing or document knowing the same to

8 contain any false, fictitious, or fraudulent

9 statement or entry; or

10 (ii) creates or supplies a false writing

11 or document for use in making such an ap12 plication,

13 shall be fined in accordance with title 18,

14 United States Code, imprisoned not more than

15 5 years, or both.

16 (B) INADMISSIBILITY.—An alien who is

17 convicted of a crime under subparagraph (A)

18 shall be considered to be inadmissible to the

19 United States on the ground described in sec20 tion 212(a)(6)(C)(i) of the Immigration and

21 Nationality Act (8 U.S.C. 1182(a)(6)(C)(i)).

22 (8) ELIGIBILITY FOR LEGAL SERVICES.—Sec23 tion 504(a)(11) of Public Law 104–134 (110 Stat.

24 1321–53 et seq.) shall not be construed to prevent

25 a recipient of funds under the Legal Services Cor-
†

541

S 2611 ES

1 poration Act (42 U.S.C. 2996 et seq.) from pro2 viding legal assistance directly related to an applica3 tion for adjustment of status under this section.

4 (9) APPLICATION FEES.—

5 (A) FEE SCHEDULE.—The Secretary shall

6 provide for a schedule of fees that—

7 (i) shall be charged for the filing of

8 applications for status under subsections

9 (a) and (c); and

10 (ii) may be charged by qualified des11 ignated entities to help defray the costs of

12 services provided to such applicants.

13 (B) PROHIBITION ON EXCESS FEES BY

14 QUALIFIED DESIGNATED ENTITIES.—A quali15 fied designated entity may not charge any fee

16 in excess of, or in addition to, the fees author17 ized under subparagraph (A)(ii) for services

18 provided to applicants.

19 (C) DISPOSITION OF FEES.—

20 (i) IN GENERAL.—There is established

21 in the general fund of the Treasury a sepa22 rate account, which shall be known as the

23 ‘‘Agricultural Worker Immigration Status

24 Adjustment Account’’. Notwithstanding

25 any other provision of law, there shall be
†

542

S 2611 ES

1 deposited as offsetting receipts into the ac2 count all fees collected under subparagraph

3 (A)(i).

4 (ii) USE OF FEES FOR APPLICATION

5 PROCESSING.—Amounts deposited in the

6 ‘‘Agricultural Worker Immigration Status

7 Adjustment Account’’ shall remain avail8 able to the Secretary until expended for

9 processing applications for status under

10 subsections (a) and (c).

11 (e) WAIVER OF NUMERICAL LIMITATIONS AND CER12 TAIN GROUNDS FOR INADMISSIBILITY.—

13 (1) NUMERICAL LIMITATIONS DO NOT APPLY.—

14 The numerical limitations of sections 201 and 202

15 of the Immigration and Nationality Act (8 U.S.C.

16 1151 and 1152) shall not apply to the adjustment

17 of aliens to lawful permanent resident status under

18 this section.

19 (2) WAIVER OF CERTAIN GROUNDS OF INAD20 MISSIBILITY.—In the determination of an alien’s eli21 gibility for status under subsection (a)(1)(C) or an

22 alien’s eligibility for adjustment of status under sub23 section (c)(1)(B)(ii)(I), the following rules shall

24 apply:
†

543

S 2611 ES

1 (A) GROUNDS OF EXCLUSION NOT APPLI2 CABLE.—The provisions of paragraphs (5),

3 (6)(A), (7), and (9) of section 212(a) of the Im4 migration and Nationality Act (8 U.S.C.

5 1182(a)) shall not apply.

6 (B) WAIVER OF OTHER GROUNDS.—

7 (i) IN GENERAL.—Except as provided

8 in clause (ii), the Secretary may waive any

9 other provision of such section 212(a) in

10 the case of individual aliens for humani11 tarian purposes, to ensure family unity, or

12 if otherwise in the public interest.

13 (ii) GROUNDS THAT MAY NOT BE

14 WAIVED.—Paragraphs (2)(A), (2)(B),

15 (2)(C), (3), and (4) of such section 212(a)

16 may not be waived by the Secretary under

17 clause (i).

18 (iii) CONSTRUCTION.—Nothing in this

19 subparagraph shall be construed as affect20 ing the authority of the Secretary other

21 than under this subparagraph to waive

22 provisions of such section 212(a).

23 (C) SPECIAL RULE FOR DETERMINATION

24 OF PUBLIC CHARGE.—An alien is not ineligible

25 for status under this section by reason of a
†

544

S 2611 ES

1 ground of inadmissibility under section

2 212(a)(4) of the Immigration and Nationality

3 Act (8 U.S.C. 1182(a)(4)) if the alien dem4 onstrates a history of employment in the United

5 States evidencing self-support without reliance

6 on public cash assistance.

7 (f) TEMPORARY STAY OF REMOVAL AND WORK AU8 THORIZATION FOR CERTAIN APPLICANTS.—

9 (1) BEFORE APPLICATION PERIOD.—Effective

10 on the date of enactment of this Act, the Secretary

11 shall provide that, in the case of an alien who is ap12 prehended before the beginning of the application

13 period described in subsection (a)(1)(B) and who

14 can establish a nonfrivolous case of eligibility for

15 blue card status (but for the fact that the alien may

16 not apply for such status until the beginning of such

17 period), until the alien has had the opportunity dur18 ing the first 30 days of the application period to

19 complete the filing of an application for blue card

20 status, the alien—

21 (A) may not be removed; and

22 (B) shall be granted authorization to en23 gage in employment in the United States and

24 be provided an ‘‘employment authorized’’ en-
†

545

S 2611 ES

1 dorsement or other appropriate work permit for

2 such purpose.

3 (2) DURING APPLICATION PERIOD.—The Sec4 retary shall provide that, in the case of an alien who

5 presents a nonfrivolous application for blue card sta6 tus during the application period described in sub7 section (a)(1)(B), including an alien who files such

8 an application within 30 days of the alien’s appre9 hension, and until a final determination on the ap10 plication has been made in accordance with this sec11 tion, the alien—

12 (A) may not be removed; and

13 (B) shall be granted authorization to en14 gage in employment in the United States and

15 be provided an ‘‘employment authorized’’ en16 dorsement or other appropriate work permit for

17 such purpose.

18 (g) ADMINISTRATIVE AND JUDICIAL REVIEW.—

19 (1) IN GENERAL.—There shall be no adminis20 trative or judicial review of a determination respect21 ing an application for status under subsection (a) or

22 (c) except in accordance with this subsection.

23 (2) ADMINISTRATIVE REVIEW.—

24 (A) SINGLE LEVEL OF ADMINISTRATIVE

25 APPELLATE REVIEW.—The Secretary shall es-
†

546

S 2611 ES

1 tablish an appellate authority to provide for a

2 single level of administrative appellate review of

3 such a determination.

4 (B) STANDARD FOR REVIEW.—Such ad5 ministrative appellate review shall be based

6 solely upon the administrative record estab7 lished at the time of the determination on the

8 application and upon such additional or newly

9 discovered evidence as may not have been avail10 able at the time of the determination.

11 (3) JUDICIAL REVIEW.—

12 (A) LIMITATION TO REVIEW OF RE13 MOVAL.—There shall be judicial review of such

14 a determination only in the judicial review of an

15 order of removal under section 242 of the Im16 migration and Nationality Act (8 U.S.C. 1252).

17 (B) STANDARD FOR JUDICIAL REVIEW.—

18 Such judicial review shall be based solely upon

19 the administrative record established at the

20 time of the review by the appellate authority

21 and the findings of fact and determinations

22 contained in such record shall be conclusive un23 less the applicant can establish abuse of discre24 tion or that the findings are directly contrary to
†

547

S 2611 ES

1 clear and convincing facts contained in the

2 record considered as a whole.

3 (h) DISSEMINATION OF INFORMATION ON ADJUST4 MENT PROGRAM.—Beginning not later than the first day

5 of the application period described in subsection (a)(1)(B),

6 the Secretary, in cooperation with qualified designated en7 tities, shall broadly disseminate information respecting the

8 benefits that aliens may receive under this section and the

9 requirements to be satisfied to obtain such benefits.

10 (i) REGULATIONS.—The Secretary shall issue regula11 tions to implement this section not later than the first day

12 of the seventh month that begins after the date of enact13 ment of this Act.

14 (j) EFFECTIVE DATE.—This section shall take effect

15 on the date that regulations are issued implementing this

16 section on an interim or other basis.

17 (k) AUTHORIZATION OF APPROPRIATIONS.—There

18 are authorized to be appropriated to the Secretary to carry

19 out this section $40,000,000 for each of fiscal years 2007

20 through 2010.

21 SEC. 614. CORRECTION OF SOCIAL SECURITY RECORDS.

22 (a) IN GENERAL.—Section 208(d)(1) of the Social

23 Security Act (42 U.S.C. 408(d)(1)) is amended—

24 (1) in subparagraph (B)(ii), by striking ‘‘or’’ at

25 the end;
†

548

S 2611 ES

1 (2) in subparagraph (C), by inserting ‘‘or’’ at

2 the end;

3 (3) by inserting after subparagraph (C) the fol4 lowing:

5 ‘‘(D) who is granted blue card status under the

6 Agricultural Job Opportunity, Benefits, and Security

7 Act of 2006,’’; and

8 (4) by striking ‘‘1990.’’ and inserting ‘‘1990, or

9 in the case of an alien described in subparagraph

10 (D), if such conduct is alleged to have occurred be11 fore the date on which the alien was granted blue

12 card status.’’.

13 (b) EFFECTIVE DATE.—The amendments made by

14 subsection (a) shall take effect on the first day of the sev15 enth month that begins after the date of the enactment

16 of this Act.

17 CHAPTER 2—REFORM OF H–2A WORKER

18 PROGRAM

19 SEC. 615. AMENDMENT TO THE IMMIGRATION AND NATION20 ALITY ACT.

21 (a) IN GENERAL.—Title II (8 U.S.C. 1151 et seq.)

22 is amended—

23 (1) by striking section 218 and inserting the

24 following:
†

549

S 2611 ES

1 ‘‘SEC. 218. H–2A EMPLOYER APPLICATIONS.

2 ‘‘(a) APPLICATIONS TO THE SECRETARY OF

3 LABOR.—

4 ‘‘(1) IN GENERAL.—No alien may be admitted

5 to the United States as an H–2A worker, or other6 wise provided status as an H–2A worker, unless the

7 employer has filed with the Secretary of Labor an

8 application containing—

9 ‘‘(A) the assurances described in sub10 section (b);

11 ‘‘(B) a description of the nature and loca12 tion of the work to be performed;

13 ‘‘(C) the anticipated period (expected be14 ginning and ending dates) for which the work15 ers will be needed; and

16 ‘‘(D) the number of job opportunities in

17 which the employer seeks to employ the work18 ers.

19 ‘‘(2) ACCOMPANIED BY JOB OFFER.—Each ap20 plication filed under paragraph (1) shall be accom21 panied by a copy of the job offer describing the

22 wages and other terms and conditions of employ23 ment and the bona fide occupational qualifications

24 that shall be possessed by a worker to be employed

25 in the job opportunity in question.
†

550

S 2611 ES

1 ‘‘(b) ASSURANCES FOR INCLUSION IN APPLICA2 TIONS.—The assurances referred to in subsection (a)(1)

3 are the following:

4 ‘‘(1) JOB OPPORTUNITIES COVERED BY COL5 LECTIVE BARGAINING AGREEMENTS.—With respect

6 to a job opportunity that is covered under a collec7 tive bargaining agreement:

8 ‘‘(A) UNION CONTRACT DESCRIBED.—The

9 job opportunity is covered by a union contract

10 which was negotiated at arm’s length between a

11 bona fide union and the employer.

12 ‘‘(B) STRIKE OR LOCKOUT.—The specific

13 job opportunity for which the employer is re14 questing an H–2A worker is not vacant because

15 the former occupant is on strike or being locked

16 out in the course of a labor dispute.

17 ‘‘(C) NOTIFICATION OF BARGAINING REP18 RESENTATIVES.—The employer, at the time of

19 filing the application, has provided notice of the

20 filing under this paragraph to the bargaining

21 representative of the employer’s employees in

22 the occupational classification at the place or

23 places of employment for which aliens are

24 sought.
†

551

S 2611 ES

1 ‘‘(D) TEMPORARY OR SEASONAL JOB OP2 PORTUNITIES.—The job opportunity is tem3 porary or seasonal.

4 ‘‘(E) OFFERS TO UNITED STATES WORK5 ERS.—The employer has offered or will offer

6 the job to any eligible United States worker

7 who applies and is equally or better qualified

8 for the job for which the nonimmigrant is, or

9 the nonimmigrants are, sought and who will be

10 available at the time and place of need.

11 ‘‘(F) PROVISION OF INSURANCE.—If the

12 job opportunity is not covered by the State

13 workers’ compensation law, the employer will

14 provide, at no cost to the worker, insurance cov15 ering injury and disease arising out of, and in

16 the course of, the worker’s employment which

17 will provide benefits at least equal to those pro18 vided under the State’s workers’ compensation

19 law for comparable employment.

20 ‘‘(2) JOB OPPORTUNITIES NOT COVERED BY

21 COLLECTIVE BARGAINING AGREEMENTS.—With re22 spect to a job opportunity that is not covered under

23 a collective bargaining agreement:

24 ‘‘(A) STRIKE OR LOCKOUT.—The specific

25 job opportunity for which the employer is re-
†

552

S 2611 ES

1 questing an H–2A worker is not vacant because

2 the former occupant is on strike or being locked

3 out in the course of a labor dispute.

4 ‘‘(B) TEMPORARY OR SEASONAL JOB OP5 PORTUNITIES.—The job opportunity is tem6 porary or seasonal.

7 ‘‘(C) BENEFIT, WAGE, AND WORKING CON8 DITIONS.—The employer will provide, at a min9 imum, the benefits, wages, and working condi10 tions required by section 218E to all workers

11 employed in the job opportunities for which the

12 employer has applied under subsection (a) and

13 to all other workers in the same occupation at

14 the place of employment.

15 ‘‘(D) NONDISPLACEMENT OF UNITED

16 STATES WORKERS.—The employer did not dis17 place and will not displace a United States

18 worker employed by the employer during the

19 period of employment and for a period of 30

20 days preceding the period of employment in the

21 occupation at the place of employment for

22 which the employer seeks approval to employ

23 H–2A workers.

24 ‘‘(E) REQUIREMENTS FOR PLACEMENT OF

25 NONIMMIGRANT WITH OTHER EMPLOYERS.—
†

553

S 2611 ES

1 The employer will not place the nonimmigrant

2 with another employer unless—

3 ‘‘(i) the nonimmigrant performs du4 ties in whole or in part at 1 or more work

5 sites owned, operated, or controlled by

6 such other employer;

7 ‘‘(ii) there are indicia of an employ8 ment relationship between the non9 immigrant and such other employer; and

10 ‘‘(iii) the employer has inquired of the

11 other employer as to whether, and has no

12 actual knowledge or notice that, during the

13 period of employment and for a period of

14 30 days preceding the period of employ15 ment, the other employer has displaced or

16 intends to displace a United States worker

17 employed by the other employer in the oc18 cupation at the place of employment for

19 which the employer seeks approval to em20 ploy H–2A workers.

21 ‘‘(F) STATEMENT OF LIABILITY.—The ap22 plication form shall include a clear statement

23 explaining the liability under subparagraph (E)

24 of an employer if the other employer described
†

554

S 2611 ES

1 in such subparagraph displaces a United States

2 worker as described in such subparagraph.

3 ‘‘(G) PROVISION OF INSURANCE.—If the

4 job opportunity is not covered by the State

5 workers’ compensation law, the employer will

6 provide, at no cost to the worker, insurance cov7 ering injury and disease arising out of and in

8 the course of the worker’s employment which

9 will provide benefits at least equal to those pro10 vided under the State’s workers’ compensation

11 law for comparable employment.

12 ‘‘(H) EMPLOYMENT OF UNITED STATES

13 WORKERS.—

14 ‘‘(i) RECRUITMENT.—The employer

15 has taken or will take the following steps

16 to recruit United States workers for the

17 job opportunities for which the H–2A non18 immigrant is, or H–2A nonimmigrants are,

19 sought:

20 ‘‘(I) CONTACTING FORMER

21 WORKERS.—The employer shall make

22 reasonable efforts through the sending

23 of a letter by United States Postal

24 Service mail, or otherwise, to contact

25 any United States worker the em-
†

555

S 2611 ES

1 ployer employed during the previous

2 season in the occupation at the place

3 of intended employment for which the

4 employer is applying for workers and

5 has made the availability of the em6 ployer’s job opportunities in the occu7 pation at the place of intended em8 ployment known to such previous

9 workers, unless the worker was termi10 nated from employment by the em11 ployer for a lawful job-related reason

12 or abandoned the job before the work13 er completed the period of employ14 ment of the job opportunity for which

15 the worker was hired.

16 ‘‘(II) FILING A JOB OFFER WITH

17 THE LOCAL OFFICE OF THE STATE

18 EMPLOYMENT SECURITY AGENCY.—

19 Not later than 28 days before the

20 date on which the employer desires to

21 employ an H–2A worker in a tem22 porary or seasonal agricultural job op23 portunity, the employer shall submit a

24 copy of the job offer described in sub25 section (a)(2) to the local office of the
†

556

S 2611 ES

1 State employment security agency

2 which serves the area of intended em3 ployment and authorize the posting of

4 the job opportunity on ‘America’s Job

5 Bank’ or other electronic job registry,

6 except that nothing in this subclause

7 shall require the employer to file an

8 interstate job order under section 653

9 of title 20, Code of Federal Regula10 tions.

11 ‘‘(III) ADVERTISING OF JOB OP12 PORTUNITIES.—Not later than 14

13 days before the date on which the em14 ployer desires to employ an H–2A

15 worker in a temporary or seasonal ag16 ricultural job opportunity, the em17 ployer shall advertise the availability

18 of the job opportunities for which the

19 employer is seeking workers in a pub20 lication in the local labor market that

21 is likely to be patronized by potential

22 farm workers.

23 ‘‘(IV) EMERGENCY PROCE24 DURES.—The Secretary of Labor

25 shall, by regulation, provide a proce-
†

557

S 2611 ES

1 dure for acceptance and approval of

2 applications in which the employer

3 has not complied with the provisions

4 of this subparagraph because the em5 ployer’s need for H–2A workers could

6 not reasonably have been foreseen.

7 ‘‘(ii) JOB OFFERS.—The employer has

8 offered or will offer the job to any eligible

9 United States worker who applies and is

10 equally or better qualified for the job for

11 which the nonimmigrant is, or non12 immigrants are, sought and who will be

13 available at the time and place of need.

14 ‘‘(iii) PERIOD OF EMPLOYMENT.—The

15 employer will provide employment to any

16 qualified United States worker who applies

17 to the employer during the period begin18 ning on the date on which the foreign

19 worker departs for the employer’s place of

20 employment and ending on the date on

21 which 50 percent of the period of employ22 ment for which the foreign worker who is

23 in the job was hired has elapsed, subject to

24 the following requirements:
†

558

S 2611 ES

1 ‘‘(I) PROHIBITION.—No person

2 or entity shall willfully and knowingly

3 withhold United States workers before

4 the arrival of H–2A workers in order

5 to force the hiring of United States

6 workers under this clause.

7 ‘‘(II) COMPLAINTS.—Upon re8 ceipt of a complaint by an employer

9 that a violation of subclause (I) has

10 occurred, the Secretary of Labor shall

11 immediately investigate. The Sec12 retary of Labor shall, within 36 hours

13 of the receipt of the complaint, issue

14 findings concerning the alleged viola15 tion. If the Secretary of Labor finds

16 that a violation has occurred, the Sec17 retary of Labor shall immediately sus18 pend the application of this clause

19 with respect to that certification for

20 that date of need.

21 ‘‘(III) PLACEMENT OF UNITED

22 STATES WORKERS.—Before referring

23 a United States worker to an em24 ployer during the period described in

25 the matter preceding subclause (I),
†

559

S 2611 ES

1 the Secretary of Labor shall make all

2 reasonable efforts to place the United

3 States worker in an open job accept4 able to the worker, if there are other

5 job offers pending with the job service

6 that offer similar job opportunities in

7 the area of intended employment.

8 ‘‘(iv) STATUTORY CONSTRUCTION.—

9 Nothing in this subparagraph shall be con10 strued to prohibit an employer from using

11 such legitimate selection criteria relevant

12 to the type of job that are normal or cus13 tomary to the type of job involved so long

14 as such criteria are not applied in a dis15 criminatory manner.

16 ‘‘(c) APPLICATIONS BY ASSOCIATIONS ON BEHALF

17 OF EMPLOYER MEMBERS.—

18 ‘‘(1) IN GENERAL.—An agricultural association

19 may file an application under subsection (a) on be20 half of 1 or more of its employer members that the

21 association certifies in its application has or have

22 agreed in writing to comply with the requirements of

23 this section and sections 218E through 218G.

24 ‘‘(2) TREATMENT OF ASSOCIATIONS ACTING AS

25 EMPLOYERS.—If an association filing an application
†

560

S 2611 ES

1 under paragraph (1) is a joint or sole employer of

2 the temporary or seasonal agricultural workers re3 quested on the application, the certifications granted

4 under subsection (e)(2)(B) to the association may be

5 used for the certified job opportunities of any of its

6 producer members named on the application, and

7 such workers may be transferred among such pro8 ducer members to perform the agricultural services

9 of a temporary or seasonal nature for which the cer10 tifications were granted.

11 ‘‘(d) WITHDRAWAL OF APPLICATIONS.—

12 ‘‘(1) IN GENERAL.—An employer may withdraw

13 an application filed pursuant to subsection (a), ex14 cept that if the employer is an agricultural associa15 tion, the association may withdraw an application

16 filed pursuant to subsection (a) with respect to 1 or

17 more of its members. To withdraw an application,

18 the employer or association shall notify the Sec19 retary of Labor in writing, and the Secretary of

20 Labor shall acknowledge in writing the receipt of

21 such withdrawal notice. An employer who withdraws

22 an application under subsection (a), or on whose be23 half an application is withdrawn, is relieved of the

24 obligations undertaken in the application.
†

561

S 2611 ES

1 ‘‘(2) LIMITATION.—An application may not be

2 withdrawn while any alien provided status under sec3 tion 101(a)(15)(H)(ii)(a) pursuant to such applica4 tion is employed by the employer.

5 ‘‘(3) OBLIGATIONS UNDER OTHER STATUTES.—

6 Any obligation incurred by an employer under any

7 other law or regulation as a result of the recruit8 ment of United States workers or H–2A workers

9 under an offer of terms and conditions of employ10 ment required as a result of making an application

11 under subsection (a) is unaffected by withdrawal of

12 such application.

13 ‘‘(e) REVIEW AND APPROVAL OF APPLICATIONS.—

14 ‘‘(1) RESPONSIBILITY OF EMPLOYERS.—The

15 employer shall make available for public examina16 tion, within 1 working day after the date on which

17 an application under subsection (a) is filed, at the

18 employer’s principal place of business or work site,

19 a copy of each such application (and such accom20 panying documents as are necessary).

21 ‘‘(2) RESPONSIBILITY OF THE SECRETARY OF

22 LABOR.—

23 ‘‘(A) COMPILATION OF LIST.—The Sec24 retary of Labor shall compile, on a current

25 basis, a list (by employer and by occupational
†

562

S 2611 ES

1 classification) of the applications filed under

2 this subsection. Such list shall include the wage

3 rate, number of workers sought, period of in4 tended employment, and date of need. The Sec5 retary of Labor shall make such list available

6 for examination in the District of Columbia.

7 ‘‘(B) REVIEW OF APPLICATIONS.—The

8 Secretary of Labor shall review such an applica9 tion only for completeness and obvious inac10 curacies. Unless the Secretary of Labor finds

11 that the application is incomplete or obviously

12 inaccurate, the Secretary of Labor shall certify

13 that the intending employer has filed with the

14 Secretary of Labor an application as described

15 in subsection (a). Such certification shall be

16 provided within 7 days of the filing of the appli17 cation.’’; and

18 (2) by inserting after section 218D, as added

19 by section 601 of this Act, the following:

20 ‘‘SEC. 218E. H–2A EMPLOYMENT REQUIREMENTS.

21 ‘‘(a) PREFERENTIAL TREATMENT OF ALIENS PRO22 HIBITED.—Employers seeking to hire United States work23 ers shall offer the United States workers no less than the

24 same benefits, wages, and working conditions that the em25 ployer is offering, intends to offer, or will provide to H–
†

563

S 2611 ES

1 2A workers. Conversely, no job offer may impose on

2 United States workers any restrictions or obligations

3 which will not be imposed on the employer’s H–2A work4 ers.

5 ‘‘(b) MINIMUM BENEFITS, WAGES, AND WORKING

6 CONDITIONS.—Except in cases where higher benefits,

7 wages, or working conditions are required by the provi8 sions of subsection (a), in order to protect similarly em9 ployed United States workers from adverse effects with

10 respect to benefits, wages, and working conditions, every

11 job offer which shall accompany an application under sec12 tion 218(b)(2) shall include each of the following benefit,

13 wage, and working condition provisions:

14 ‘‘(1) REQUIREMENT TO PROVIDE HOUSING OR A

15 HOUSING ALLOWANCE.—

16 ‘‘(A) IN GENERAL.—An employer applying

17 under section 218(a) for H–2A workers shall

18 offer to provide housing at no cost to all work19 ers in job opportunities for which the employer

20 has applied under that section and to all other

21 workers in the same occupation at the place of

22 employment, whose place of residence is beyond

23 normal commuting distance.

24 ‘‘(B) TYPE OF HOUSING.—In complying

25 with subparagraph (A), an employer may, at
†

564

S 2611 ES

1 the employer’s election, provide housing that

2 meets applicable Federal standards for tem3 porary labor camps or secure housing that

4 meets applicable local standards for rental or

5 public accommodation housing or other sub6 stantially similar class of habitation, or in the

7 absence of applicable local standards, State

8 standards for rental or public accommodation

9 housing or other substantially similar class of

10 habitation. In the absence of applicable local or

11 State standards, Federal temporary labor camp

12 standards shall apply.

13 ‘‘(C) FAMILY HOUSING.—When it is the

14 prevailing practice in the occupation and area

15 of intended employment to provide family hous16 ing, family housing shall be provided to workers

17 with families who request it.

18 ‘‘(D) WORKERS ENGAGED IN THE RANGE

19 PRODUCTION OF LIVESTOCK.—The Secretary of

20 Labor shall issue regulations that address the

21 specific requirements for the provision of hous22 ing to workers engaged in the range production

23 of livestock.

24 ‘‘(E) LIMITATION.—Nothing in this para25 graph shall be construed to require an employer
†

565

S 2611 ES

1 to provide or secure housing for persons who

2 were not entitled to such housing under the

3 temporary labor certification regulations in ef4 fect on June 1, 1986.

5 ‘‘(F) CHARGES FOR HOUSING.—

6 ‘‘(i) CHARGES FOR PUBLIC HOUS7 ING.—If public housing provided for mi8 grant agricultural workers under the aus9 pices of a local, county, or State govern10 ment is secured by an employer, and use of

11 the public housing unit normally requires

12 charges from migrant workers, such

13 charges shall be paid by the employer di14 rectly to the appropriate individual or enti15 ty affiliated with the housing’s manage16 ment.

17 ‘‘(ii) DEPOSIT CHARGES.—Charges in

18 the form of deposits for bedding or other

19 similar incidentals related to housing shall

20 not be levied upon workers by employers

21 who provide housing for their workers. An

22 employer may require a worker found to

23 have been responsible for damage to such

24 housing which is not the result of normal

25 wear and tear related to habitation to re-
†

566

S 2611 ES

1 imburse the employer for the reasonable

2 cost of repair of such damage.

3 ‘‘(G) HOUSING ALLOWANCE AS ALTER4 NATIVE.—

5 ‘‘(i) IN GENERAL.—If the requirement

6 under clause (ii) is satisfied, the employer

7 may provide a reasonable housing allow8 ance instead of offering housing under sub9 paragraph (A). Upon the request of a

10 worker seeking assistance in locating hous11 ing, the employer shall make a good faith

12 effort to assist the worker in identifying

13 and locating housing in the area of in14 tended employment. An employer who of15 fers a housing allowance to a worker, or

16 assists a worker in locating housing which

17 the worker occupies, pursuant to this

18 clause shall not be deemed a housing pro19 vider under section 203 of the Migrant and

20 Seasonal Agricultural Worker Protection

21 Act (29 U.S.C. 1823) solely by virtue of

22 providing such housing allowance. No

23 housing allowance may be used for housing

24 which is owned or controlled by the em25 ployer.
†

567

S 2611 ES

1 ‘‘(ii) CERTIFICATION.—The require2 ment of this clause is satisfied if the Gov3 ernor of the State certifies to the Secretary

4 of Labor that there is adequate housing

5 available in the area of intended employ6 ment for migrant farm workers, and H–2A

7 workers, who are seeking temporary hous8 ing while employed at farm work. Such

9 certification shall expire after 3 years un10 less renewed by the Governor of the State.

11 ‘‘(iii) AMOUNT OF ALLOWANCE.—

12 ‘‘(I) NONMETROPOLITAN COUN13 TIES.—If the place of employment of

14 the workers provided an allowance

15 under this subparagraph is a non16 metropolitan county, the amount of

17 the housing allowance under this sub18 paragraph shall be equal to the state19 wide average fair market rental for

20 existing housing for nonmetropolitan

21 counties for the State, as established

22 by the Secretary of Housing and

23 Urban Development pursuant to sec24 tion 8(c) of the United States Hous25 ing Act of 1937 (42 U.S.C. 1437f(c)),
†

568

S 2611 ES

1 based on a 2 bedroom dwelling unit

2 and an assumption of 2 persons per

3 bedroom.

4 ‘‘(II) METROPOLITAN COUN5 TIES.—If the place of employment of

6 the workers provided an allowance

7 under this paragraph is in a metro8 politan county, the amount of the

9 housing allowance under this subpara10 graph shall be equal to the statewide

11 average fair market rental for existing

12 housing for metropolitan counties for

13 the State, as established by the Sec14 retary of Housing and Urban Devel15 opment pursuant to section 8(c) of

16 the United States Housing Act of

17 1937 (42 U.S.C. 1437f(c)), based on

18 a 2-bedroom dwelling unit and an as19 sumption of 2 persons per bedroom.

20 ‘‘(2) REIMBURSEMENT OF TRANSPORTATION.—

21 ‘‘(A) TO PLACE OF EMPLOYMENT.—A

22 worker who completes 50 percent of the period

23 of employment of the job opportunity for which

24 the worker was hired shall be reimbursed by the

25 employer for the cost of the worker’s transpor-
†

569

S 2611 ES

1 tation and subsistence from the place from

2 which the worker came to work for the em3 ployer (or place of last employment, if the

4 worker traveled from such place) to the place of

5 employment.

6 ‘‘(B) FROM PLACE OF EMPLOYMENT.—A

7 worker who completes the period of employment

8 for the job opportunity involved shall be reim9 bursed by the employer for the cost of the

10 worker’s transportation and subsistence from

11 the place of employment to the place from

12 which the worker, disregarding intervening em13 ployment, came to work for the employer, or to

14 the place of next employment, if the worker has

15 contracted with a subsequent employer who has

16 not agreed to provide or pay for the worker’s

17 transportation and subsistence to such subse18 quent employer’s place of employment.

19 ‘‘(C) LIMITATION.—

20 ‘‘(i) AMOUNT OF REIMBURSEMENT.—

21 Except as provided in clause (ii), the

22 amount of reimbursement provided under

23 subparagraph (A) or (B) to a worker or

24 alien shall not exceed the lesser of—
†

570

S 2611 ES

1 ‘‘(I) the actual cost to the worker

2 or alien of the transportation and sub3 sistence involved; or

4 ‘‘(II) the most economical and

5 reasonable common carrier transpor6 tation charges and subsistence costs

7 for the distance involved.

8 ‘‘(ii) DISTANCE TRAVELED.—No reim9 bursement under subparagraph (A) or (B)

10 shall be required if the distance traveled is

11 100 miles or less, or the worker is not re12 siding in employer-provided housing or

13 housing secured through an allowance as

14 provided in paragraph (1)(G).

15 ‘‘(D) EARLY TERMINATION.—If the worker

16 is laid off or employment is terminated for con17 tract impossibility (as described in paragraph

18 (4)(D)) before the anticipated ending date of

19 employment, the employer shall provide the

20 transportation and subsistence required by sub21 paragraph (B) and, notwithstanding whether

22 the worker has completed 50 percent of the pe23 riod of employment, shall provide the transpor24 tation reimbursement required by subparagraph

25 (A).
†

571

S 2611 ES

1 ‘‘(E) TRANSPORTATION BETWEEN LIVING

2 QUARTERS AND WORK SITE.—The employer

3 shall provide transportation between the work4 er’s living quarters and the employer’s work site

5 without cost to the worker, and such transpor6 tation will be in accordance with applicable laws

7 and regulations.

8 ‘‘(3) REQUIRED WAGES.—

9 ‘‘(A) IN GENERAL.—An employer applying

10 for workers under section 218(a) shall offer to

11 pay, and shall pay, all workers in the occupa12 tion for which the employer has applied for

13 workers, not less (and is not required to pay

14 more) than the greater of the prevailing wage

15 in the occupation in the area of intended em16 ployment or the adverse effect wage rate. No

17 worker shall be paid less than the greater of the

18 hourly wage prescribed under section 6(a)(1) of

19 the Fair Labor Standards Act of 1938 (29

20 U.S.C. 206(a)(1)) or the applicable State min21 imum wage.

22 ‘‘(B) LIMITATION.—Effective on the date

23 of the enactment of the Agricultural Job Op24 portunities, Benefits, and Security Act of 2006

25 and continuing for 3 years thereafter, no ad-
†

572

S 2611 ES

1 verse effect wage rate for a State may be more

2 than the adverse effect wage rate for that State

3 in effect on January 1, 2003, as established by

4 section 655.107 of title 20, Code of Federal

5 Regulations.

6 ‘‘(C) REQUIRED WAGES AFTER 3-YEAR

7 FREEZE.—

8 ‘‘(i) FIRST ADJUSTMENT.—If Con9 gress does not set a new wage standard

10 applicable to this section before the first

11 March 1 that is not less than 3 years after

12 the date of enactment of this section, the

13 adverse effect wage rate for each State be14 ginning on such March 1 shall be the wage

15 rate that would have resulted if the ad16 verse effect wage rate in effect on January

17 1, 2003, had been annually adjusted, be18 ginning on March 1, 2006, by the lesser

19 of—

20 ‘‘(I) the 12 month percentage

21 change in the Consumer Price Index

22 for All Urban Consumers between De23 cember of the second preceding year

24 and December of the preceding year;

25 and
†

573

S 2611 ES

1 ‘‘(II) 4 percent.

2 ‘‘(ii) SUBSEQUENT ANNUAL ADJUST3 MENTS.—Beginning on the first March 1

4 that is not less than 4 years after the date

5 of enactment of this section, and each

6 March 1 thereafter, the adverse effect

7 wage rate then in effect for each State

8 shall be adjusted by the lesser of—

9 ‘‘(I) the 12 month percentage

10 change in the Consumer Price Index

11 for All Urban Consumers between De12 cember of the second preceding year

13 and December of the preceding year;

14 and

15 ‘‘(II) 4 percent.

16 ‘‘(D) DEDUCTIONS.—The employer shall

17 make only those deductions from the worker’s

18 wages that are authorized by law or are reason19 able and customary in the occupation and area

20 of employment. The job offer shall specify all

21 deductions not required by law which the em22 ployer will make from the worker’s wages.

23 ‘‘(E) FREQUENCY OF PAY.—The employer

24 shall pay the worker not less frequently than

25 twice monthly, or in accordance with the pre-
†

574

S 2611 ES

1 vailing practice in the area of employment,

2 whichever is more frequent.

3 ‘‘(F) HOURS AND EARNINGS STATE4 MENTS.—The employer shall furnish to the

5 worker, on or before each payday, in 1 or more

6 written statements—

7 ‘‘(i) the worker’s total earnings for

8 the pay period;

9 ‘‘(ii) the worker’s hourly rate of pay,

10 piece rate of pay, or both;

11 ‘‘(iii) the hours of employment which

12 have been offered to the worker (broken

13 out by hours offered in accordance with

14 and over and above the three-quarters

15 guarantee described in paragraph (4);

16 ‘‘(iv) the hours actually worked by the

17 worker;

18 ‘‘(v) an itemization of the deductions

19 made from the worker’s wages; and

20 ‘‘(vi) if piece rates of pay are used,

21 the units produced daily.

22 ‘‘(G) REPORT ON WAGE PROTECTIONS.—

23 Not later than December 31, 2008, the Comp24 troller General of the United States shall pre25 pare and transmit to the Secretary of Labor,
†

575

S 2611 ES

1 the Committee on the Judiciary of the Senate,

2 and Committee on the Judiciary of the House

3 of Representatives, a report that addresses—

4 ‘‘(i) whether the employment of H–2A

5 or unauthorized aliens in the United States

6 agricultural work force has depressed

7 United States farm worker wages below

8 the levels that would otherwise have pre9 vailed if alien farm workers had not been

10 employed in the United States;

11 ‘‘(ii) whether an adverse effect wage

12 rate is necessary to prevent wages of

13 United States farm workers in occupations

14 in which H–2A workers are employed from

15 falling below the wage levels that would

16 have prevailed in the absence of the em17 ployment of H–2A workers in those occu18 pations;

19 ‘‘(iii) whether alternative wage stand20 ards, such as a prevailing wage standard,

21 would be sufficient to prevent wages in oc22 cupations in which H–2A workers are em23 ployed from falling below the wage level

24 that would have prevailed in the absence of

25 H–2A employment;
†

576

S 2611 ES

1 ‘‘(iv) whether any changes are war2 ranted in the current methodologies for

3 calculating the adverse effect wage rate

4 and the prevailing wage; and

5 ‘‘(v) recommendations for future wage

6 protection under this section.

7 ‘‘(H) COMMISSION ON WAGE STAND8 ARDS.—

9 ‘‘(i) ESTABLISHMENT.—There is es10 tablished the Commission on Agricultural

11 Wage Standards under the H–2A program

12 (in this subparagraph referred to as the

13 ‘Commission’).

14 ‘‘(ii) COMPOSITION.—The Commission

15 shall consist of 10 members as follows:

16 ‘‘(I) 4 representatives of agricul17 tural employers and 1 representative

18 of the Department of Agriculture,

19 each appointed by the Secretary of

20 Agriculture.

21 ‘‘(II) 4 representatives of agricul22 tural workers and 1 representative of

23 the Department of Labor, each ap24 pointed by the Secretary of Labor.
†

577

S 2611 ES

1 ‘‘(iii) FUNCTIONS.—The Commission

2 shall conduct a study that shall address—

3 ‘‘(I) whether the employment of

4 H–2A or unauthorized aliens in the

5 United States agricultural workforce

6 has depressed United States farm

7 worker wages below the levels that

8 would otherwise have prevailed if alien

9 farm workers had not been employed

10 in the United States;

11 ‘‘(II) whether an adverse effect

12 wage rate is necessary to prevent

13 wages of United States farm workers

14 in occupations in which H–2A work15 ers are employed from falling below

16 the wage levels that would have pre17 vailed in the absence of the employ18 ment of H–2A workers in those occu19 pations;

20 ‘‘(III) whether alternative wage

21 standards, such as a prevailing wage

22 standard, would be sufficient to pre23 vent wages in occupations in which

24 H–2A workers are employed from fall25 ing below the wage level that would
†

578

S 2611 ES

1 have prevailed in the absence of H–2A

2 employment;

3 ‘‘(IV) whether any changes are

4 warranted in the current methodolo5 gies for calculating the adverse effect

6 wage rate and the prevailing wage

7 rate; and

8 ‘‘(V) recommendations for future

9 wage protection under this section.

10 ‘‘(iv) FINAL REPORT.—Not later than

11 December 31, 2008, the Commission shall

12 submit a report to the Congress setting

13 forth the findings of the study conducted

14 under clause (iii).

15 ‘‘(v) TERMINATION DATE.—The Com16 mission shall terminate upon submitting

17 its final report.

18 ‘‘(4) GUARANTEE OF EMPLOYMENT.—

19 ‘‘(A) OFFER TO WORKER.—The employer

20 shall guarantee to offer the worker employment

21 for the hourly equivalent of at least three22 fourths of the work days of the total period of

23 employment, beginning with the first work day

24 after the arrival of the worker at the place of

25 employment and ending on the expiration date
†

579

S 2611 ES

1 specified in the job offer. For purposes of this

2 subparagraph, the hourly equivalent means the

3 number of hours in the work days as stated in

4 the job offer and shall exclude the worker’s

5 Sabbath and Federal holidays. If the employer

6 affords the United States or H–2A worker less

7 employment than that required under this para8 graph, the employer shall pay such worker the

9 amount which the worker would have earned

10 had the worker, in fact, worked for the guaran11 teed number of hours.

12 ‘‘(B) FAILURE TO WORK.—Any hours

13 which the worker fails to work, up to a max14 imum of the number of hours specified in the

15 job offer for a work day, when the worker has

16 been offered an opportunity to do so, and all

17 hours of work actually performed (including vol18 untary work in excess of the number of hours

19 specified in the job offer in a work day, on the

20 worker’s Sabbath, or on Federal holidays) may

21 be counted by the employer in calculating

22 whether the period of guaranteed employment

23 has been met.

24 ‘‘(C) ABANDONMENT OF EMPLOYMENT,

25 TERMINATION FOR CAUSE.—If the worker vol-
†

580

S 2611 ES

1 untarily abandons employment before the end

2 of the contract period, or is terminated for

3 cause, the worker is not entitled to the ‘three4 fourths guarantee’ described in subparagraph

5 (A).

6 ‘‘(D) CONTRACT IMPOSSIBILITY.—If, be7 fore the expiration of the period of employment

8 specified in the job offer, the services of the

9 worker are no longer required for reasons be10 yond the control of the employer due to any

11 form of natural disaster, including but not lim12 ited to a flood, hurricane, freeze, earthquake,

13 fire, drought, plant or animal disease or pest in14 festation, or regulatory drought, before the

15 guarantee in subparagraph (A) is fulfilled, the

16 employer may terminate the worker’s employ17 ment. In the event of such termination, the em18 ployer shall fulfill the employment guarantee in

19 subparagraph (A) for the work days that have

20 elapsed from the first work day after the arrival

21 of the worker to the termination of employ22 ment. In such cases, the employer will make ef23 forts to transfer the United States worker to

24 other comparable employment acceptable to the

25 worker. If such transfer is not effected, the em-
†

581

S 2611 ES

1 ployer shall provide the return transportation

2 required in paragraph (2)(D).

3 ‘‘(5) MOTOR VEHICLE SAFETY.—

4 ‘‘(A) MODE OF TRANSPORTATION SUBJECT

5 TO COVERAGE.—

6 ‘‘(i) IN GENERAL.—Except as pro7 vided in clauses (iii) and (iv), this sub8 section applies to any H–2A employer that

9 uses or causes to be used any vehicle to

10 transport an H–2A worker within the

11 United States.

12 ‘‘(ii) DEFINED TERM.—In this para13 graph, the term ‘uses or causes to be

14 used’—

15 ‘‘(I) applies only to transpor16 tation provided by an H–2A employer

17 to an H–2A worker, or by a farm

18 labor contractor to an H–2A worker

19 at the request or direction of an H–

20 2A employer; and

21 ‘‘(II) does not apply to—

22 ‘‘(aa) transportation pro23 vided, or transportation arrange24 ments made, by an H–2A work25 er, unless the employer specifi-
†

582

S 2611 ES

1 cally requested or arranged such

2 transportation; or

3 ‘‘(bb) car pooling arrange4 ments made by H–2A workers

5 themselves, using 1 of the work6 ers’ own vehicles, unless specifi7 cally requested by the employer

8 directly or through a farm labor

9 contractor.

10 ‘‘(iii) CLARIFICATION.—Providing a

11 job offer to an H–2A worker that causes

12 the worker to travel to or from the place

13 of employment, or the payment or reim14 bursement of the transportation costs of

15 an H–2A worker by an H–2A employer,

16 shall not constitute an arrangement of, or

17 participation in, such transportation.

18 ‘‘(iv) AGRICULTURAL MACHINERY AND

19 EQUIPMENT EXCLUDED.—This subsection

20 does not apply to the transportation of an

21 H–2A worker on a tractor, combine, har22 vester, picker, or other similar machinery

23 or equipment while such worker is actually

24 engaged in the planting, cultivating, or

25 harvesting of agricultural commodities or
†

583

S 2611 ES

1 the care of livestock or poultry or engaged

2 in transportation incidental thereto.

3 ‘‘(v) COMMON CARRIERS EX4 CLUDED.—This subsection does not apply

5 to common carrier motor vehicle transpor6 tation in which the provider holds itself out

7 to the general public as engaging in the

8 transportation of passengers for hire and

9 holds a valid certification of authorization

10 for such purposes from an appropriate

11 Federal, State, or local agency.

12 ‘‘(B) APPLICABILITY OF STANDARDS, LI13 CENSING, AND INSURANCE REQUIREMENTS.—

14 ‘‘(i) IN GENERAL.—When using, or

15 causing to be used, any vehicle for the pur16 pose of providing transportation to which

17 this subparagraph applies, each employer

18 shall—

19 ‘‘(I) ensure that each such vehi20 cle conforms to the standards pre21 scribed by the Secretary of Labor

22 under section 401(b) of the Migrant

23 and Seasonal Agricultural Worker

24 Protection Act (29 U.S.C. 1841(b))
†

584

S 2611 ES

1 and other applicable Federal and

2 State safety standards;

3 ‘‘(II) ensure that each driver has

4 a valid and appropriate license, as

5 provided by State law, to operate the

6 vehicle; and

7 ‘‘(III) have an insurance policy

8 or a liability bond that is in effect

9 which insures the employer against li10 ability for damage to persons or prop11 erty arising from the ownership, oper12 ation, or causing to be operated, of

13 any vehicle used to transport any H–

14 2A worker.

15 ‘‘(ii) AMOUNT OF INSURANCE RE16 QUIRED.—The level of insurance required

17 shall be determined by the Secretary of

18 Labor pursuant to regulations to be issued

19 under this subsection.

20 ‘‘(iii) EFFECT OF WORKERS’ COM21 PENSATION COVERAGE.—If the employer

22 of any H–2A worker provides workers’

23 compensation coverage for such worker in

24 the case of bodily injury or death as pro25 vided by State law, the following adjust-
†

585

S 2611 ES

1 ments in the requirements of subparagraph

2 (B)(i)(III) relating to having an insurance

3 policy or liability bond apply:

4 ‘‘(I) No insurance policy or liabil5 ity bond shall be required of the em6 ployer, if such workers are trans7 ported only under circumstances for

8 which there is coverage under such

9 State law.

10 ‘‘(II) An insurance policy or li11 ability bond shall be required of the

12 employer for circumstances under

13 which coverage for the transportation

14 of such workers is not provided under

15 such State law.

16 ‘‘(c) COMPLIANCE WITH LABOR LAWS.—An em17 ployer shall assure that, except as otherwise provided in

18 this section, the employer will comply with all applicable

19 Federal, State, and local labor laws, including laws affect20 ing migrant and seasonal agricultural workers, with re21 spect to all United States workers and alien workers em22 ployed by the employer, except that a violation of this as23 surance shall not constitute a violation of the Migrant and

24 Seasonal Agricultural Worker Protection Act (29 U.S.C.

25 1801 et seq.).
†

586

S 2611 ES

1 ‘‘(d) COPY OF JOB OFFER.—The employer shall pro2 vide to the worker, not later than the day the work com3 mences, a copy of the employer’s application and job offer

4 described in section 218(a), or, if the employer will require

5 the worker to enter into a separate employment contract

6 covering the employment in question, such separate em7 ployment contract.

8 ‘‘(e) RANGE PRODUCTION OF LIVESTOCK.—Nothing

9 in this section, section 218, or section 218F shall preclude

10 the Secretary of Labor and the Secretary from continuing

11 to apply special procedures and requirements to the ad12 mission and employment of aliens in occupations involving

13 the range production of livestock.

14 ‘‘SEC. 218F. PROCEDURE FOR ADMISSION AND EXTENSION

15 OF STAY OF H–2A WORKERS.

16 ‘‘(a) PETITIONING FOR ADMISSION.—An employer,

17 or an association acting as an agent or joint employer for

18 its members, that seeks the admission into the United

19 States of an H–2A worker may file a petition with the

20 Secretary. The petition shall be accompanied by an accept21 ed and currently valid certification provided by the Sec22 retary of Labor under section 218(e)(2)(B) covering the

23 petitioner.

24 ‘‘(b) EXPEDITED ADJUDICATION BY THE SEC25 RETARY.—The Secretary shall establish a procedure for
†

587

S 2611 ES

1 expedited adjudication of petitions filed under subsection

2 (a) and within 7 working days shall, by fax, cable, or other

3 means assuring expedited delivery, transmit a copy of no4 tice of action on the petition to the petitioner and, in the

5 case of approved petitions, to the appropriate immigration

6 officer at the port of entry or United States consulate (as

7 the case may be) where the petitioner has indicated that

8 the alien beneficiary (or beneficiaries) will apply for a visa

9 or admission to the United States.

10 ‘‘(c) CRITERIA FOR ADMISSIBILITY.—

11 ‘‘(1) IN GENERAL.—An H–2A worker shall be

12 considered admissible to the United States if the

13 alien is otherwise admissible under this section, sec14 tion 218, and section 218E, and the alien is not in15 eligible under paragraph (2).

16 ‘‘(2) DISQUALIFICATION.—An alien shall be

17 considered inadmissible to the United States and in18 eligible for nonimmigrant status under section

19 101(a)(15)(H)(ii)(a) if the alien has, at any time

20 during the past 5 years—

21 ‘‘(A) violated a material provision of this

22 section, including the requirement to promptly

23 depart the United States when the alien’s au24 thorized period of admission under this section

25 has expired; or
†

588

S 2611 ES

1 ‘‘(B) otherwise violated a term or condition

2 of admission into the United States as a non3 immigrant, including overstaying the period of

4 authorized admission as such a nonimmigrant.

5 ‘‘(3) WAIVER OF INELIGIBILITY FOR UNLAW6 FUL PRESENCE.—

7 ‘‘(A) IN GENERAL.—An alien who has not

8 previously been admitted into the United States

9 pursuant to this section, and who is otherwise

10 eligible for admission in accordance with para11 graphs (1) and (2), shall not be deemed inad12 missible by virtue of section 212(a)(9)(B). If an

13 alien described in the preceding sentence is

14 present in the United States, the alien may

15 apply from abroad for H–2A status, but may

16 not be granted that status in the United States.

17 ‘‘(B) MAINTENANCE OF WAIVER.—An

18 alien provided an initial waiver of ineligibility

19 pursuant to subparagraph (A) shall remain eli20 gible for such waiver unless the alien violates

21 the terms of this section or again becomes ineli22 gible under section 212(a)(9)(B) by virtue of

23 unlawful presence in the United States after

24 the date of the initial waiver of ineligibility pur25 suant to subparagraph (A).
†

589

S 2611 ES

1 ‘‘(d) PERIOD OF ADMISSION.—

2 ‘‘(1) IN GENERAL.—The alien shall be admitted

3 for the period of employment in the application cer4 tified by the Secretary of Labor pursuant to section

5 218(e)(2)(B), not to exceed 10 months, supple6 mented by a period of not more than 1 week before

7 the beginning of the period of employment for the

8 purpose of travel to the work site and a period of

9 14 days following the period of employment for the

10 purpose of departure or extension based on a subse11 quent offer of employment, except that—

12 ‘‘(A) the alien is not authorized to be em13 ployed during such 14-day period except in the

14 employment for which the alien was previously

15 authorized; and

16 ‘‘(B) the total period of employment, in17 cluding such 14-day period, may not exceed 10

18 months.

19 ‘‘(2) CONSTRUCTION.—Nothing in this sub20 section shall limit the authority of the Secretary to

21 extend the stay of the alien under any other provi22 sion of this Act.

23 ‘‘(e) ABANDONMENT OF EMPLOYMENT.—

24 ‘‘(1) IN GENERAL.—An alien admitted or pro25 vided status under section 101(a)(15)(H)(ii)(a) who
†

590

S 2611 ES

1 abandons the employment which was the basis for

2 such admission or status shall be considered to have

3 failed to maintain nonimmigrant status as an H–2A

4 worker and shall depart the United States or be sub5 ject to removal under section 237(a)(1)(C)(i).

6 ‘‘(2) REPORT BY EMPLOYER.—The employer, or

7 association acting as agent for the employer, shall

8 notify the Secretary not later than 7 days after an

9 H–2A worker prematurely abandons employment.

10 ‘‘(3) REMOVAL BY THE SECRETARY.—The Sec11 retary shall promptly remove from the United States

12 any H–2A worker who violates any term or condi13 tion of the worker’s nonimmigrant status.

14 ‘‘(4) VOLUNTARY TERMINATION.—Notwith15 standing paragraph (1), an alien may voluntarily

16 terminate his or her employment if the alien prompt17 ly departs the United States upon termination of

18 such employment.

19 ‘‘(f) REPLACEMENT OF ALIEN.—

20 ‘‘(1) IN GENERAL.—Upon presentation of the

21 notice to the Secretary required by subsection (e)(2),

22 the Secretary of State shall promptly issue a visa to,

23 and the Secretary shall admit into the United

24 States, an eligible alien designated by the employer

25 to replace an H–2A worker—
†

591

S 2611 ES

1 ‘‘(A) who abandons or prematurely termi2 nates employment; or

3 ‘‘(B) whose employment is terminated

4 after a United States worker is employed pur5 suant to section 218(b)(2)(H)(iii), if the United

6 States worker voluntarily departs before the

7 end of the period of intended employment or if

8 the employment termination is for a lawful job9 related reason.

10 ‘‘(2) CONSTRUCTION.—Nothing in this sub11 section is intended to limit any preference required

12 to be accorded United States workers under any

13 other provision of this Act.

14 ‘‘(g) IDENTIFICATION DOCUMENT.—

15 ‘‘(1) IN GENERAL.—Each alien authorized to be

16 admitted under section 101(a)(15)(H)(ii)(a) shall be

17 provided an identification and employment eligibility

18 document to verify eligibility for employment in the

19 United States and verify such person’s proper iden20 tity.

21 ‘‘(2) REQUIREMENTS.—No identification and

22 employment eligibility document may be issued

23 which does not meet the following requirements:

24 ‘‘(A) The document shall be capable of re25 liably determining whether—
†

592

S 2611 ES

1 ‘‘(i) the individual with the identifica2 tion and employment eligibility document

3 whose eligibility is being verified is in fact

4 eligible for employment;

5 ‘‘(ii) the individual whose eligibility is

6 being verified is claiming the identity of

7 another person; and

8 ‘‘(iii) the individual whose eligibility is

9 being verified is authorized to be admitted

10 into, and employed in, the United States

11 as an H–2A worker.

12 ‘‘(B) The document shall be in a form that

13 is resistant to counterfeiting and to tampering.

14 ‘‘(C) The document shall—

15 ‘‘(i) be compatible with other data16 bases of the Secretary for the purpose of

17 excluding aliens from benefits for which

18 they are not eligible and determining

19 whether the alien is unlawfully present in

20 the United States; and

21 ‘‘(ii) be compatible with law enforce22 ment databases to determine if the alien

23 has been convicted of criminal offenses.

24 ‘‘(h) EXTENSION OF STAY OF H–2A ALIENS IN THE

25 UNITED STATES.—
†

593

S 2611 ES

1 ‘‘(1) EXTENSION OF STAY.—If an employer

2 seeks approval to employ an H–2A alien who is law3 fully present in the United States, the petition filed

4 by the employer or an association pursuant to sub5 section (a), shall request an extension of the alien’s

6 stay and a change in the alien’s employment.

7 ‘‘(2) LIMITATION ON FILING A PETITION FOR

8 EXTENSION OF STAY.—A petition may not be filed

9 for an extension of an alien’s stay—

10 ‘‘(A) for a period of more than 10 months;

11 or

12 ‘‘(B) to a date that is more than 3 years

13 after the date of the alien’s last admission to

14 the United States under this section.

15 ‘‘(3) WORK AUTHORIZATION UPON FILING A

16 PETITION FOR EXTENSION OF STAY.—

17 ‘‘(A) IN GENERAL.—An alien who is law18 fully present in the United States may com19 mence the employment described in a petition

20 under paragraph (1) on the date on which the

21 petition is filed.

22 ‘‘(B) DEFINITION.—For purposes of sub23 paragraph (A), the term ‘file’ means sending

24 the petition by certified mail via the United

25 States Postal Service, return receipt requested,
†

594

S 2611 ES

1 or delivered by guaranteed commercial delivery

2 which will provide the employer with a docu3 mented acknowledgment of the date of receipt

4 of the petition.

5 ‘‘(C) HANDLING OF PETITION.—The em6 ployer shall provide a copy of the employer’s pe7 tition to the alien, who shall keep the petition

8 with the alien’s identification and employment

9 eligibility document as evidence that the peti10 tion has been filed and that the alien is author11 ized to work in the United States.

12 ‘‘(D) APPROVAL OF PETITION.—Upon ap13 proval of a petition for an extension of stay or

14 change in the alien’s authorized employment,

15 the Secretary shall provide a new or updated

16 employment eligibility document to the alien in17 dicating the new validity date, after which the

18 alien is not required to retain a copy of the pe19 tition.

20 ‘‘(4) LIMITATION ON EMPLOYMENT AUTHORIZA21 TION OF ALIENS WITHOUT VALID IDENTIFICATION

22 AND EMPLOYMENT ELIGIBILITY DOCUMENT.—An ex23 pired identification and employment eligibility docu24 ment, together with a copy of a petition for exten25 sion of stay or change in the alien’s authorized em-
†

595

S 2611 ES

1 ployment that complies with the requirements of

2 paragraph (1), shall constitute a valid work author3 ization document for a period of not more than 60

4 days beginning on the date on which such petition

5 is filed, after which time only a currently valid iden6 tification and employment eligibility document shall

7 be acceptable.

8 ‘‘(5) LIMITATION ON AN INDIVIDUAL’S STAY IN

9 STATUS.—

10 ‘‘(A) MAXIMUM PERIOD.—The maximum

11 continuous period of authorized status as an

12 H–2A worker (including any extensions) is 3

13 years.

14 ‘‘(B) REQUIREMENT TO REMAIN OUTSIDE

15 THE UNITED STATES.—

16 ‘‘(i) IN GENERAL.—Subject to clause

17 (ii), in the case of an alien outside the

18 United States whose period of authorized

19 status as an H–2A worker (including any

20 extensions) has expired, the alien may not

21 again apply for admission to the United

22 States as an H–2A worker unless the alien

23 has remained outside the United States for

a continuous period equal to at least 1 24 ⁄5

25 the duration of the alien’s previous period
†

596

S 2611 ES

1 of authorized status as an H–2A worker

2 (including any extensions).

3 ‘‘(ii) EXCEPTION.—Clause (i) shall

4 not apply in the case of an alien if the

5 alien’s period of authorized status as an

6 H–2A worker (including any extensions)

7 was for a period of not more than 10

8 months and such alien has been outside

9 the United States for at least 2 months

10 during the 12 months preceding the date

11 the alien again is applying for admission to

12 the United States as an H–2A worker.

13 ‘‘(i) SPECIAL RULES FOR ALIENS EMPLOYED AS

14 SHEEPHERDERS, GOAT HERDERS, OR DAIRY WORK15 ERS.—Notwithstanding any provision of the Agricultural

16 Job Opportunities, Benefits, and Security Act of 2006, an

17 alien admitted under section 101(a)(15)(H)(ii)(a) for em18 ployment as a sheepherder, goat herder, or dairy worker—

19 ‘‘(1) may be admitted for an initial period of 12

20 months;

21 ‘‘(2) subject to subsection (j)(5), may have such

22 initial period of admission extended for a period of

23 up to 3 years; and
†

597

S 2611 ES

1 ‘‘(3) shall not be subject to the requirements of

2 subsection (h)(5) (relating to periods of absence

3 from the United States).

4 ‘‘(j) ADJUSTMENT TO LAWFUL PERMANENT RESI5 DENT STATUS FOR ALIENS EMPLOYED AS SHEEP6 HERDERS, GOAT HERDERS, OR DAIRY WORKERS.—

7 ‘‘(1) ELIGIBLE ALIEN.—For purposes of this

8 subsection, the term ‘eligible alien’ means an alien—

9 ‘‘(A) having nonimmigrant status under

10 section 101(a)(15)(H)(ii)(a) based on employ11 ment as a sheepherder, goat herder, or dairy

12 worker;

13 ‘‘(B) who has maintained such non14 immigrant status in the United States for a cu15 mulative total of 36 months (excluding any pe16 riod of absence from the United States); and

17 ‘‘(C) who is seeking to receive an immi18 grant visa under section 203(b)(3)(A)(iii).

19 ‘‘(2) CLASSIFICATION PETITION.—In the case

20 of an eligible alien, the petition under section 204

21 for classification under section 203(b)(3)(A)(iii) may

22 be filed by—

23 ‘‘(A) the alien’s employer on behalf of an

24 eligible alien; or

25 ‘‘(B) the eligible alien.
†

598

S 2611 ES

1 ‘‘(3) NO LABOR CERTIFICATION REQUIRED.—

2 Notwithstanding section 203(b)((3)(C), no deter3 mination under section 212(a)(5)(A) is required with

4 respect to an immigrant visa described in paragraph

5 (1)(C) for an eligible alien.

6 ‘‘(4) EFFECT OF PETITION.—The filing of a pe7 tition described in paragraph (2) or an application

8 for adjustment of status based on the approval of

9 such a petition, shall not constitute evidence of an

10 alien’s ineligibility for nonimmigrant status under

11 section 101(a)(15)(H)(ii)(a).

12 ‘‘(5) EXTENSION OF STAY.—The Secretary of

13 Homeland Security shall extend the stay of an eligi14 ble alien having a pending or approved classification

15 petition described in paragraph (2) in 1-year incre16 ments until a final determination is made on the

17 alien’s eligibility for adjustment of status to that of

18 an alien lawfully admitted for permanent residence.

19 ‘‘(6) CONSTRUCTION.—Nothing in this sub20 section shall be construed to prevent an eligible alien

21 from seeking adjustment of status in accordance

22 with any other provision of law.

23 ‘‘SEC. 218G. WORKER PROTECTIONS AND LABOR STAND24 ARDS ENFORCEMENT.

25 ‘‘(a) ENFORCEMENT AUTHORITY.—
†

599

S 2611 ES

1 ‘‘(1) INVESTIGATION OF COMPLAINTS.—

2 ‘‘(A) AGGRIEVED PERSON OR THIRD-PARTY

3 COMPLAINTS.—The Secretary of Labor shall es4 tablish a process for the receipt, investigation,

5 and disposition of complaints respecting a peti6 tioner’s failure to meet a condition specified in

7 section 218(b), or an employer’s misrepresenta8 tion of material facts in an application under

9 section 218(a). Complaints may be filed by any

10 aggrieved person or organization (including bar11 gaining representatives). No investigation or

12 hearing shall be conducted on a complaint con13 cerning such a failure or misrepresentation un14 less the complaint was filed not later than 12

15 months after the date of the failure, or mis16 representation, respectively. The Secretary of

17 Labor shall conduct an investigation under this

18 subparagraph if there is reasonable cause to be19 lieve that such a failure or misrepresentation

20 has occurred.

21 ‘‘(B) DETERMINATION ON COMPLAINT.—

22 Under such process, the Secretary of Labor

23 shall provide, within 30 days after the date

24 such a complaint is filed, for a determination as

25 to whether or not a reasonable basis exists to
†

600

S 2611 ES

1 make a finding described in subparagraph (C),

2 (D), (E), or (H). If the Secretary of Labor de3 termines that such a reasonable basis exists,

4 the Secretary of Labor shall provide for notice

5 of such determination to the interested parties

6 and an opportunity for a hearing on the com7 plaint, in accordance with section 556 of title 5,

8 United States Code, within 60 days after the

9 date of the determination. If such a hearing is

10 requested, the Secretary of Labor shall make a

11 finding concerning the matter not later than 60

12 days after the date of the hearing. In the case

13 of similar complaints respecting the same appli14 cant, the Secretary of Labor may consolidate

15 the hearings under this subparagraph on such

16 complaints.

17 ‘‘(C) FAILURES TO MEET CONDITIONS.—If

18 the Secretary of Labor finds, after notice and

19 opportunity for a hearing, a failure to meet a

20 condition of paragraph (1)(A), (1)(B), (1)(D),

21 (1)(F), (2)(A), (2)(B), or (2)(G) of section

22 218(b), a substantial failure to meet a condition

23 of paragraph (1)(C), (1)(E), (2)(C), (2)(D),

24 (2)(E), or (2)(H) of section 218(b), or a mate-
†

601

S 2611 ES

1 rial misrepresentation of fact in an application

2 under section 218(a)—

3 ‘‘(i) the Secretary of Labor shall no4 tify the Secretary of such finding and may,

5 in addition, impose such other administra6 tive remedies (including civil money pen7 alties in an amount not to exceed $1,000

8 per violation) as the Secretary of Labor

9 determines to be appropriate; and

10 ‘‘(ii) the Secretary may disqualify the

11 employer from the employment of aliens

12 described in section 101(a)(15)(H)(ii)(a)

13 for a period of 1 year.

14 ‘‘(D) WILLFUL FAILURES AND WILLFUL

15 MISREPRESENTATIONS.—If the Secretary of

16 Labor finds, after notice and opportunity for

17 hearing, a willful failure to meet a condition of

18 section 218(b), a willful misrepresentation of a

19 material fact in an application under section

20 218(a), or a violation of subsection (d)(1)—

21 ‘‘(i) the Secretary of Labor shall no22 tify the Secretary of such finding and may,

23 in addition, impose such other administra24 tive remedies (including civil money pen25 alties in an amount not to exceed $5,000
†

602

S 2611 ES

1 per violation) as the Secretary of Labor

2 determines to be appropriate;

3 ‘‘(ii) the Secretary of Labor may seek

4 appropriate legal or equitable relief to ef5 fectuate the purposes of subsection (d)(1);

6 and

7 ‘‘(iii) the Secretary may disqualify the

8 employer from the employment of H–2A

9 workers for a period of 2 years.

10 ‘‘(E) DISPLACEMENT OF UNITED STATES

11 WORKERS.—If the Secretary of Labor finds,

12 after notice and opportunity for hearing, a will13 ful failure to meet a condition of section 218(b)

14 or a willful misrepresentation of a material fact

15 in an application under section 218(a), in the

16 course of which failure or misrepresentation the

17 employer displaced a United States worker em18 ployed by the employer during the period of em19 ployment on the employer’s application under

20 section 218(a) or during the period of 30 days

21 preceding such period of employment—

22 ‘‘(i) the Secretary of Labor shall no23 tify the Secretary of such finding and may,

24 in addition, impose such other administra25 tive remedies (including civil money pen-
†

603

S 2611 ES

1 alties in an amount not to exceed $15,000

2 per violation) as the Secretary of Labor

3 determines to be appropriate; and

4 ‘‘(ii) the Secretary may disqualify the

5 employer from the employment of H–2A

6 workers for a period of 3 years.

7 ‘‘(F) LIMITATIONS ON CIVIL MONEY PEN8 ALTIES.—The Secretary of Labor shall not im9 pose total civil money penalties with respect to

10 an application under section 218(a) in excess of

11 $90,000.

12 ‘‘(G) FAILURES TO PAY WAGES OR RE13 QUIRED BENEFITS.—If the Secretary of Labor

14 finds, after notice and opportunity for a hear15 ing, that the employer has failed to pay the

16 wages, or provide the housing allowance, trans17 portation, subsistence reimbursement, or guar18 antee of employment, required under section

19 218E(b), the Secretary of Labor shall assess

20 payment of back wages, or other required bene21 fits, due any United States worker or H–2A

22 worker employed by the employer in the specific

23 employment in question. The back wages or

24 other required benefits under section 218E(b)

25 shall be equal to the difference between the
†

604

S 2611 ES

1 amount that should have been paid and the

2 amount that actually was paid to such worker.

3 ‘‘(2) STATUTORY CONSTRUCTION.—Nothing in

4 this section shall be construed as limiting the au5 thority of the Secretary of Labor to conduct any

6 compliance investigation under any other labor law,

7 including any law affecting migrant and seasonal ag8 ricultural workers, or, in the absence of a complaint

9 under this section, under section 218 or 218E.

10 ‘‘(b) RIGHTS ENFORCEABLE BY PRIVATE RIGHT OF

11 ACTION.—H–2A workers may enforce the following rights

12 through the private right of action provided in subsection

13 (c), and no other right of action shall exist under Federal

14 or State law to enforce such rights:

15 ‘‘(1) The providing of housing or a housing al16 lowance as required under section 218E(b)(1).

17 ‘‘(2) The reimbursement of transportation as

18 required under section 218E(b)(2).

19 ‘‘(3) The payment of wages required under sec20 tion 218E(b)(3) when due.

21 ‘‘(4) The benefits and material terms and con22 ditions of employment expressly provided in the job

23 offer described in section 218(a)(2), not including

24 the assurance to comply with other Federal, State,

25 and local labor laws described in section 218E(c),
†

605

S 2611 ES

1 compliance with which shall be governed by the pro2 visions of such laws.

3 ‘‘(5) The guarantee of employment required

4 under section 218E(b)(4).

5 ‘‘(6) The motor vehicle safety requirements

6 under section 218E(b)(5).

7 ‘‘(7) The prohibition of discrimination under

8 subsection (d)(2).

9 ‘‘(c) PRIVATE RIGHT OF ACTION.—

10 ‘‘(1) MEDIATION.—Upon the filing of a com11 plaint by an H–2A worker aggrieved by a violation

12 of rights enforceable under subsection (b), and with13 in 60 days of the filing of proof of service of the

14 complaint, a party to the action may file a request

15 with the Federal Mediation and Conciliation Service

16 to assist the parties in reaching a satisfactory reso17 lution of all issues involving all parties to the dis18 pute. Upon a filing of such request and giving of no19 tice to the parties, the parties shall attempt medi20 ation within the period specified in subparagraph

21 (B).

22 ‘‘(A) MEDIATION SERVICES.—The Federal

23 Mediation and Conciliation Service shall be

24 available to assist in resolving disputes arising

25 under subsection (b) between H–2A workers
†

606

S 2611 ES

1 and agricultural employers without charge to

2 the parties.

3 ‘‘(B) 90-DAY LIMIT.—The Federal Medi4 ation and Conciliation Service may conduct me5 diation or other non-binding dispute resolution

6 activities for a period not to exceed 90 days be7 ginning on the date on which the Federal Medi8 ation and Conciliation Service receives the re9 quest for assistance unless the parties agree to

10 an extension of this period of time.

11 ‘‘(C) AUTHORIZATION.—

12 ‘‘(i) IN GENERAL.—Subject to clause

13 (ii), there are authorized to be appro14 priated to the Federal Mediation and Con15 ciliation Service $500,000 for each fiscal

16 year to carry out this section.

17 ‘‘(ii) MEDIATION.—Notwithstanding

18 any other provision of law, the Director of

19 the Federal Mediation and Conciliation

20 Service is authorized to conduct the medi21 ation or other dispute resolution activities

22 from any other appropriated funds avail23 able to the Director and to reimburse such

24 appropriated funds when the funds are ap25 propriated pursuant to this authorization,
†

607

S 2611 ES

1 such reimbursement to be credited to ap2 propriations currently available at the time

3 of receipt.

4 ‘‘(2) MAINTENANCE OF CIVIL ACTION IN DIS5 TRICT COURT BY AGGRIEVED PERSON.—An H–2A

6 worker aggrieved by a violation of rights enforceable

7 under subsection (b) by an agricultural employer or

8 other person may file suit in any district court of the

9 United States having jurisdiction of the parties,

10 without regard to the amount in controversy, with11 out regard to the citizenship of the parties, and

12 without regard to the exhaustion of any alternative

13 administrative remedies under this Act, not later

14 than 3 years after the date the violation occurs.

15 ‘‘(3) ELECTION.—An H–2A worker who has

16 filed an administrative complaint with the Secretary

17 of Labor may not maintain a civil action under

18 paragraph (2) unless a complaint based on the same

19 violation filed with the Secretary of Labor under

20 subsection (a)(1) is withdrawn before the filing of

21 such action, in which case the rights and remedies

22 available under this subsection shall be exclusive.

23 ‘‘(4) PREEMPTION OF STATE CONTRACT

24 RIGHTS.—Nothing in this Act shall be construed to

25 diminish the rights and remedies of an H–2A worker
†

608

S 2611 ES

1 under any other Federal or State law or regulation

2 or under any collective bargaining agreement, except

3 that no court or administrative action shall be avail4 able under any State contract law to enforce the

5 rights created by this Act.

6 ‘‘(5) WAIVER OF RIGHTS PROHIBITED.—Agree7 ments by employees purporting to waive or modify

8 their rights under this Act shall be void as contrary

9 to public policy, except that a waiver or modification

10 of the rights or obligations in favor of the Secretary

11 of Labor shall be valid for purposes of the enforce12 ment of this Act. The preceding sentence may not

13 be construed to prohibit agreements to settle private

14 disputes or litigation.

15 ‘‘(6) AWARD OF DAMAGES OR OTHER EQUI16 TABLE RELIEF.—

17 ‘‘(A) If the court finds that the respondent

18 has intentionally violated any of the rights en19 forceable under subsection (b), it shall award

20 actual damages, if any, or equitable relief.

21 ‘‘(B) Any civil action brought under this

22 section shall be subject to appeal as provided in

23 chapter 83 of title 28, United States Code.

24 ‘‘(7) WORKERS’ COMPENSATION BENEFITS; EX25 CLUSIVE REMEDY.—
†

609

S 2611 ES

1 ‘‘(A) Notwithstanding any other provision

2 of this section, where a State’s workers’ com3 pensation law is applicable and coverage is pro4 vided for an H–2A worker, the workers’ com5 pensation benefits shall be the exclusive remedy

6 for the loss of such worker under this section

7 in the case of bodily injury or death in accord8 ance with such State’s workers’ compensation

9 law.

10 ‘‘(B) The exclusive remedy prescribed in

11 subparagraph (A) precludes the recovery under

12 paragraph (6) of actual damages for loss from

13 an injury or death but does not preclude other

14 equitable relief, except that such relief shall not

15 include back or front pay or in any manner, di16 rectly or indirectly, expand or otherwise alter or

17 affect—

18 ‘‘(i) a recovery under a State workers’

19 compensation law; or

20 ‘‘(ii) rights conferred under a State

21 workers’ compensation law.

22 ‘‘(8) TOLLING OF STATUTE OF LIMITATIONS.—

23 If it is determined under a State workers’ compensa24 tion law that the workers’ compensation law is not

25 applicable to a claim for bodily injury or death of an
†

610

S 2611 ES

1 H–2A worker, the statute of limitations for bringing

2 an action for actual damages for such injury or

3 death under subsection (c) shall be tolled for the pe4 riod during which the claim for such injury or death

5 under such State workers’ compensation law was

6 pending. The statute of limitations for an action for

7 actual damages or other equitable relief arising out

8 of the same transaction or occurrence as the injury

9 or death of the H–2A worker shall be tolled for the

10 period during which the claim for such injury or

11 death was pending under the State workers’ com12 pensation law.

13 ‘‘(9) PRECLUSIVE EFFECT.—Any settlement by

14 an H–2A worker and an H–2A employer or any per15 son reached through the mediation process required

16 under subsection (c)(1) shall preclude any right of

17 action arising out of the same facts between the par18 ties in any Federal or State court or administrative

19 proceeding, unless specifically provided otherwise in

20 the settlement agreement.

21 ‘‘(10) SETTLEMENTS.—Any settlement by the

22 Secretary of Labor with an H–2A employer on be23 half of an H–2A worker of a complaint filed with the

24 Secretary of Labor under this section or any finding

25 by the Secretary of Labor under subsection
†

611

S 2611 ES

1 (a)(1)(B) shall preclude any right of action arising

2 out of the same facts between the parties under any

3 Federal or State court or administrative proceeding,

4 unless specifically provided otherwise in the settle5 ment agreement.

6 ‘‘(d) DISCRIMINATION PROHIBITED.—

7 ‘‘(1) IN GENERAL.—It is a violation of this sub8 section for any person who has filed an application

9 under section 218(a), to intimidate, threaten, re10 strain, coerce, blacklist, discharge, or in any other

11 manner discriminate against an employee (which

12 term, for purposes of this subsection, includes a

13 former employee and an applicant for employment)

14 because the employee has disclosed information to

15 the employer, or to any other person, that the em16 ployee reasonably believes evidences a violation of

17 section 218 or 218E or any rule or regulation per18 taining to section 218 or 218E, or because the em19 ployee cooperates or seeks to cooperate in an inves20 tigation or other proceeding concerning the employ21 er’s compliance with the requirements of section 218

22 or 218E or any rule or regulation pertaining to ei23 ther of such sections.

24 ‘‘(2) DISCRIMINATION AGAINST H–2A WORK25 ERS.—It is a violation of this subsection for any per-
†

612

S 2611 ES

1 son who has filed an application under section

2 218(a), to intimidate, threaten, restrain, coerce,

3 blacklist, discharge, or in any manner discriminate

4 against an H–2A employee because such worker has,

5 with just cause, filed a complaint with the Secretary

6 of Labor regarding a denial of the rights enumer7 ated and enforceable under subsection (b) or insti8 tuted, or caused to be instituted, a private right of

9 action under subsection (c) regarding the denial of

10 the rights enumerated under subsection (b), or has

11 testified or is about to testify in any court pro12 ceeding brought under subsection (c).

13 ‘‘(e) AUTHORIZATION TO SEEK OTHER APPRO14 PRIATE EMPLOYMENT.—The Secretary of Labor and the

15 Secretary shall establish a process under which an H–2A

16 worker who files a complaint regarding a violation of sub17 section (d) and is otherwise eligible to remain and work

18 in the United States may be allowed to seek other appro19 priate employment in the United States for a period not

20 to exceed the maximum period of stay authorized for such

21 nonimmigrant classification.

22 ‘‘(f) ROLE OF ASSOCIATIONS.—

23 ‘‘(1) VIOLATION BY A MEMBER OF AN ASSOCIA24 TION.—An employer on whose behalf an application

25 is filed by an association acting as its agent is fully
†

613

S 2611 ES

1 responsible for such application, and for complying

2 with the terms and conditions of sections 218 and

3 218E, as though the employer had filed the applica4 tion itself. If such an employer is determined, under

5 this section, to have committed a violation, the pen6 alty for such violation shall apply only to that mem7 ber of the association unless the Secretary of Labor

8 determines that the association or other member

9 participated in, had knowledge, or reason to know,

10 of the violation, in which case the penalty shall be

11 invoked against the association or other association

12 member as well.

13 ‘‘(2) VIOLATIONS BY AN ASSOCIATION ACTING

14 AS AN EMPLOYER.—If an association filing an appli15 cation as a sole or joint employer is determined to

16 have committed a violation under this section, the

17 penalty for such violation shall apply only to the as18 sociation unless the Secretary of Labor determines

19 that an association member or members participated

20 in or had knowledge, or reason to know of the viola21 tion, in which case the penalty shall be invoked

22 against the association member or members as well.

23 ‘‘SEC. 218H. DEFINITIONS.

24 ‘‘For purposes of this section, section 218, and sec25 tions 218E through 218G:
†

614

S 2611 ES

1 ‘‘(1) AGRICULTURAL EMPLOYMENT.—The term

2 ‘agricultural employment’ means any service or ac3 tivity that is considered to be agricultural under sec4 tion 3(f) of the Fair Labor Standards Act of 1938

5 (29 U.S.C. 203(f)) or agricultural labor under sec6 tion 3121(g) of the Internal Revenue Code of 1986

7 (26 U.S.C. 3121(g)). For purposes of this para8 graph, agricultural employment includes employment

9 under section 101(a)(15)(H)(ii)(a).

10 ‘‘(2) BONA FIDE UNION.—The term ‘bona fide

11 union’ means any organization in which employees

12 participate and which exists for the purpose of deal13 ing with employers concerning grievances, labor dis14 putes, wages, rates of pay, hours of employment, or

15 other terms and conditions of work for agricultural

16 employees. Such term does not include an organiza17 tion formed, created, administered, supported, domi18 nated, financed, or controlled by an employer or em19 ployer association or its agents or representatives.

20 ‘‘(3) DISPLACE.—The term ‘displace’, in the

21 case of an application with respect to 1 or more H–

22 2A workers by an employer, means laying off a

23 United States worker from a job for which the H–

24 2A worker or workers is or are sought.
†

615

S 2611 ES

1 ‘‘(4) ELIGIBLE.—The term ‘eligible’, when used

2 with respect to an individual, means an individual

3 who is not an unauthorized alien (as defined in sec4 tion 274A).

5 ‘‘(5) EMPLOYER.—The term ‘employer’ means

6 any person or entity, including any farm labor con7 tractor and any agricultural association, that em8 ploys workers in agricultural employment.

9 ‘‘(6) H–2A EMPLOYER.—The term ‘H–2A em10 ployer’ means an employer who seeks to hire 1 or

11 more nonimmigrant aliens described in section

12 101(a)(15)(H)(ii)(a).

13 ‘‘(7) H–2A WORKER.—The term ‘H–2A worker’

14 means a nonimmigrant described in section

15 101(a)(15)(H)(ii)(a).

16 ‘‘(8) JOB OPPORTUNITY.—The term ‘job oppor17 tunity’ means a job opening for temporary full-time

18 employment at a place in the United States to which

19 United States workers can be referred.

20 ‘‘(9) LAYS OFF.—

21 ‘‘(A) IN GENERAL.—The term ‘lays off’,

22 with respect to a worker—

23 ‘‘(i) means to cause the worker’s loss

24 of employment, other than through a dis25 charge for inadequate performance, viola-
†

616

S 2611 ES

1 tion of workplace rules, cause, voluntary

2 departure, voluntary retirement, contract

3 impossibility (as described in section

4 218E(b)(4)(D)), or temporary layoffs due

5 to weather, markets, or other temporary

6 conditions; but

7 ‘‘(ii) does not include any situation in

8 which the worker is offered, as an alter9 native to such loss of employment, a simi10 lar employment opportunity with the same

11 employer (or, in the case of a placement of

12 a worker with another employer under sec13 tion 218(b)(2)(E), with either employer de14 scribed in such section) at equivalent or

15 higher compensation and benefits than the

16 position from which the employee was dis17 charged, regardless of whether or not the

18 employee accepts the offer.

19 ‘‘(B) STATUTORY CONSTRUCTION.—Noth20 ing in this paragraph is intended to limit an

21 employee’s rights under a collective bargaining

22 agreement or other employment contract.

23 ‘‘(10) REGULATORY DROUGHT.—The term ‘reg24 ulatory drought’ means a decision subsequent to the

25 filing of the application under section 218 by an en-
†

617

S 2611 ES

1 tity not under the control of the employer making

2 such filing which restricts the employer’s access to

3 water for irrigation purposes and reduces or limits

4 the employer’s ability to produce an agricultural

5 commodity, thereby reducing the need for labor.

6 ‘‘(11) SEASONAL.—Labor is performed on a

7 ‘seasonal’ basis if—

8 ‘‘(A) ordinarily, it pertains to or is of the

9 kind exclusively performed at certain seasons or

10 periods of the year; and

11 ‘‘(B) from its nature, it may not be contin12 uous or carried on throughout the year.

13 ‘‘(12) SECRETARY.—The term ‘Secretary’

14 means the Secretary of Homeland Security.

15 ‘‘(13) TEMPORARY.—A worker is employed on a

16 ‘temporary’ basis where the employment is intended

17 not to exceed 10 months.

18 ‘‘(14) UNITED STATES WORKER.—The term

19 ‘United States worker’ means any worker, whether

20 a United States citizen or national, a lawfully admit21 ted permanent resident alien, or any other alien,

22 who is authorized to work in the job opportunity

23 within the United States, except an alien admitted

24 or otherwise provided status under section

25 101(a)(15)(H)(ii)(a).’’.
†

618

S 2611 ES

1 (b) TABLE OF CONTENTS.—The table of contents (8

2 U.S.C. 1101 et seq.) is amended—

3 (1) by striking the item relating to section 218

4 and inserting the following:

‘‘Sec. 218. H–2A employer applications.’’

5 and

6 (2) by inserting after the item relating to sec7 tion 218D, as added by section 601 of this Act, the

8 following:

‘‘Sec. 218E. H–2A employment requirements.

‘‘Sec. 218F. Procedure for admission and extension of stay of H–2A workers.

‘‘Sec. 218G. Worker protections and labor standards enforcement.

‘‘Sec. 218H. Definitions.’’.

9 CHAPTER 3—MISCELLANEOUS

10 PROVISIONS

11 SEC. 616. DETERMINATION AND USE OF USER FEES.

12 (a) SCHEDULE OF FEES.—The Secretary shall estab13 lish and periodically adjust a schedule of fees for the em14 ployment of aliens under this subtitle and the amendments

15 made by this subtitle, and a collection process for such

16 fees from employers participating in the program provided

17 under this subtitle. Such fees shall be the only fees charge18 able to employers for services provided under this subtitle.

19 (b) DETERMINATION OF SCHEDULE.—

20 (1) IN GENERAL.—The schedule under sub21 section (a) shall reflect a fee rate based on the num22 ber of job opportunities indicated in the employer’s
†

619

S 2611 ES

1 application under section 218 of the Immigration

2 and Nationality Act, as added by section 615 of this

3 Act, and sufficient to provide for the direct costs of

4 providing services related to an employer’s author5 ization to employ eligible aliens pursuant to this sub6 title, to include the certification of eligible employ7 ers, the issuance of documentation, and the admis8 sion of eligible aliens.

9 (2) PROCEDURE.—

10 (A) IN GENERAL.—In establishing and ad11 justing such a schedule, the Secretary shall

12 comply with Federal cost accounting and fee

13 setting standards.

14 (B) PUBLICATION AND COMMENT.—The

15 Secretary shall publish in the Federal Register

16 an initial fee schedule and associated collection

17 process and the cost data or estimates upon

18 which such fee schedule is based, and any sub19 sequent amendments thereto, pursuant to which

20 public comment shall be sought and a final rule

21 issued.

22 (c) USE OF PROCEEDS.—Notwithstanding any other

23 provision of law, all proceeds resulting from the payment

24 of the alien employment user fees shall be available with25 out further appropriation and shall remain available with-
†

620

S 2611 ES

1 out fiscal year limitation to reimburse the Secretary, the

2 Secretary of State, and the Secretary of Labor for the

3 costs of carrying out sections 218 and 218F of the Immi4 gration and Nationality Act, as added by section 615 of

5 this Act, and the provisions of this subtitle.

6 SEC. 617. REGULATIONS.

7 (a) REGULATIONS OF THE SECRETARY.—The Sec8 retary shall consult with the Secretary of Labor and the

9 Secretary of Agriculture on all regulations to implement

10 the duties of the Secretary under this subtitle and the

11 amendments made by this subtitle.

12 (b) REGULATIONS OF THE SECRETARY OF STATE.—

13 The Secretary of State shall consult with the Secretary,

14 the Secretary of Labor, and the Secretary of Agriculture

15 on all regulations to implement the duties of the Secretary

16 of State under this subtitle and the amendments made by

17 this subtitle.

18 (c) REGULATIONS OF THE SECRETARY OF LABOR.—

19 The Secretary of Labor shall consult with the Secretary

20 of Agriculture and the Secretary on all regulations to im21 plement the duties of the Secretary of Labor under this

22 subtitle and the amendments made by this subtitle.

23 (d) DEADLINE FOR ISSUANCE OF REGULATIONS.—

24 All regulations to implement the duties of the Secretary,

25 the Secretary of State, and the Secretary of Labor created
†

621

S 2611 ES

1 under sections 218, 218E, 218F, and 218G of the Immi2 gration and Nationality Act, as added by section 615 of

3 this Act, shall take effect on the effective date of section

4 615 and shall be issued not later than 1 year after the

5 date of enactment of this Act.

6 SEC. 618. REPORT TO CONGRESS.

7 Not later than September 30 of each year, the Sec8 retary shall submit a report to Congress that identifies,

9 for the previous year—

10 (1) the number of job opportunities approved

11 for employment of aliens admitted under section

12 101(a)(15)(H)(ii)(a) of the Immigration and Nation13 ality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)), and the

14 number of workers actually admitted, by State and

15 by occupation;

16 (2) the number of such aliens reported to have

17 abandoned employment pursuant to subsection

18 218F(e)(2) of such Act;

19 (3) the number of such aliens who departed the

20 United States within the period specified in sub21 section 218F(d) of such Act;

22 (4) the number of aliens who applied for adjust23 ment of status pursuant to section 613(a);

24 (5) the number of such aliens whose status was

25 adjusted under section 613(a);
†

622

S 2611 ES

1 (6) the number of aliens who applied for perma2 nent residence pursuant to section 613(c); and

3 (7) the number of such aliens who were ap4 proved for permanent residence pursuant section

5 613(c).

6 SEC. 619. EFFECTIVE DATE.

7 (a) IN GENERAL.—Except as otherwise provided, sec8 tions 615 and 616 shall take effect 1 year after the date

9 of the enactment of this Act.

10 (b) REPORT.—Not later than 180 days after the date

11 of the enactment of this Act, the Secretary shall prepare

12 and submit to the appropriate committees of Congress a

13 report that describes the measures being taken and the

14 progress made in implementing this subtitle.

15 Subtitle C—DREAM Act

16 SEC. 621. SHORT TITLE.

17 This subtitle may be cited as the ‘‘Development, Re18 lief, and Education for Alien Minors Act of 2006’’ or the

19 ‘‘DREAM Act of 2006’’.

20 SEC. 622. DEFINITIONS.

21 In this subtitle:

22 (1) INSTITUTION OF HIGHER EDUCATION.—The

23 term ‘‘institution of higher education’’ has the

24 meaning given that term in section 101 of the High25 er Education Act of 1965 (20 U.S.C. 1001).
†

623

S 2611 ES

1 (2) UNIFORMED SERVICES.—The term ‘‘uni2 formed services’’ has the meaning given that term in

3 section 101(a) of title 10, United States Code.

4 SEC. 623. RESTORATION OF STATE OPTION TO DETERMINE

5 RESIDENCY FOR PURPOSES OF HIGHER EDU6 CATION BENEFITS.

7 (a) IN GENERAL.—Section 505 of the Illegal Immi8 gration Reform and Immigrant Responsibility Act of 1996

9 (8 U.S.C. 1623) is repealed.

10 (b) EFFECTIVE DATE.—The repeal under subsection

11 (a) shall take effect as if included in the enactment of the

12 Illegal Immigration Reform and Immigrant Responsibility

13 Act of 1996.

14 SEC. 624. CANCELLATION OF REMOVAL AND ADJUSTMENT

15 OF STATUS OF CERTAIN LONG-TERM RESI16 DENTS WHO ENTERED THE UNITED STATES

17 AS CHILDREN.

18 (a) SPECIAL RULE FOR CERTAIN LONG-TERM RESI19 DENTS WHO ENTERED THE UNITED STATES AS CHIL20 DREN.—

21 (1) IN GENERAL.—Notwithstanding any other

22 provision of law and except as otherwise provided in

23 this subtitle, the Secretary may cancel removal of,

24 and adjust to the status of an alien lawfully admit25 ted for permanent residence, subject to the condi-
†

624

S 2611 ES

1 tional basis described in section 625, an alien who

2 is inadmissible or deportable from the United States,

3 if the alien demonstrates that—

4 (A) the alien has been physically present in

5 the United States for a continuous period of

6 not less than 5 years immediately preceding the

7 date of enactment of this Act, and had not yet

8 reached the age of 16 years at the time of ini9 tial entry;

10 (B) the alien has been a person of good

11 moral character since the time of application;

12 (C) the alien—

13 (i) is not inadmissible under para14 graph (2), (3), (6)(B), (6)(C), (6)(E),

15 (6)(F), or (6)(G) of section 212(a) of the

16 Immigration and Nationality Act (8 U.S.C.

17 1182(a)), or, if inadmissible solely under

18 subparagraph (C) or (F) of paragraph (6)

19 of such subsection, the alien was under the

20 age of 16 years at the time the violation

21 was committed; and

22 (ii) is not deportable under paragraph

23 (1)(E), (1)(G), (2), (3)(B), (3)(C), (3)(D),

24 (4), or (6) of section 237(a) of the Immi25 gration and Nationality Act (8 U.S.C.
†

625

S 2611 ES

1 1227(a)), or, if deportable solely under

2 subparagraphs (C) or (D) of paragraph (3)

3 of such subsection, the alien was under the

4 age of 16 years at the time the violation

5 was committed;

6 (D) the alien, at the time of application,

7 has been admitted to an institution of higher

8 education in the United States, or has earned

9 a high school diploma or obtained a general

10 education development certificate in the United

11 States; and

12 (E) the alien has never been under a final

13 administrative or judicial order of exclusion, de14 portation, or removal, unless the alien has re15 mained in the United States under color of law

16 or received the order before attaining the age of

17 16 years.

18 (2) WAIVER.—The Secretary may waive the

19 grounds of ineligibility under section 212(a)(6) of

20 the Immigration and Nationality Act and the

21 grounds of deportability under paragraphs (1), (3),

22 and (6) of section 237(a) of that Act for humani23 tarian purposes or family unity or when it is other24 wise in the public interest.
†

626

S 2611 ES

1 (3) PROCEDURES.—The Secretary shall provide

2 a procedure by regulation allowing eligible individ3 uals to apply affirmatively for the relief available

4 under this subsection without being placed in re5 moval proceedings.

6 (b) TERMINATION OF CONTINUOUS PERIOD.—For

7 purposes of this section, any period of continuous resi8 dence or continuous physical presence in the United States

9 of an alien who applies for cancellation of removal under

10 this section shall not terminate when the alien is served

11 a notice to appear under section 239(a) of the Immigra12 tion and Nationality Act (8 U.S.C. 1229(a)).

13 (c) TREATMENT OF CERTAIN BREAKS IN PRES14 ENCE.—

15 (1) IN GENERAL.—An alien shall be considered

16 to have failed to maintain continuous physical pres17 ence in the United States under subsection (a) if the

18 alien has departed from the United States for any

19 period in excess of 90 days or for any periods in the

20 aggregate exceeding 180 days.

21 (2) EXTENSIONS FOR EXCEPTIONAL CIR22 CUMSTANCES.—The Secretary may extend the time

23 periods described in paragraph (1) if the alien dem24 onstrates that the failure to timely return to the

25 United States was due to exceptional circumstances.
†

627

S 2611 ES

1 The exceptional circumstances determined sufficient

2 to justify an extension should be no less compelling

3 than serious illness of the alien, or death or serious

4 illness of a parent, grandparent, sibling, or child.

5 (d) EXEMPTION FROM NUMERICAL LIMITATIONS.—

6 Nothing in this section may be construed to apply a nu7 merical limitation on the number of aliens who may be

8 eligible for cancellation of removal or adjustment of status

9 under this section.

10 (e) REGULATIONS.—

11 (1) PROPOSED REGULATIONS.—Not later than

12 180 days after the date of enactment of this Act, the

13 Secretary shall publish proposed regulations imple14 menting this section. Such regulations shall be effec15 tive immediately on an interim basis, but are subject

16 to change and revision after public notice and oppor17 tunity for a period for public comment.

18 (2) INTERIM, FINAL REGULATIONS.—Within a

19 reasonable time after publication of the interim reg20 ulations in accordance with paragraph (1), the Sec21 retary shall publish final regulations implementing

22 this section.

23 (f) REMOVAL OF ALIEN.—The Secretary may not re24 move any alien who has a pending application for condi25 tional status under this subtitle.
†

628

S 2611 ES

1 SEC. 625. CONDITIONAL PERMANENT RESIDENT STATUS.

2 (a) IN GENERAL.—

3 (1) CONDITIONAL BASIS FOR STATUS.—Not4 withstanding any other provision of law, and except

5 as provided in section 626, an alien whose status has

6 been adjusted under section 624 to that of an alien

7 lawfully admitted for permanent residence shall be

8 considered to have obtained such status on a condi9 tional basis subject to the provisions of this section.

10 Such conditional permanent resident status shall be

11 valid for a period of 6 years, subject to termination

12 under subsection (b).

13 (2) NOTICE OF REQUIREMENTS.—

14 (A) AT TIME OF OBTAINING PERMANENT

15 RESIDENCE.—At the time an alien obtains per16 manent resident status on a conditional basis

17 under paragraph (1), the Secretary shall pro18 vide for notice to the alien regarding the provi19 sions of this section and the requirements of

20 subsection (c) to have the conditional basis of

21 such status removed.

22 (B) EFFECT OF FAILURE TO PROVIDE NO23 TICE.—The failure of the Secretary to provide

24 a notice under this paragraph—
†

629

S 2611 ES

1 (i) shall not affect the enforcement of

2 the provisions of this subtitle with respect

3 to the alien; and

4 (ii) shall not give rise to any private

5 right of action by the alien.

6 (b) TERMINATION OF STATUS.—

7 (1) IN GENERAL.—The Secretary shall termi8 nate the conditional permanent resident status of

9 any alien who obtained such status under this sub10 title, if the Secretary determines that the alien—

11 (A) ceases to meet the requirements of

12 subparagraph (B) or (C) of section 624(a)(1);

13 (B) has become a public charge; or

14 (C) has received a dishonorable or other

15 than honorable discharge from the uniformed

16 services.

17 (2) RETURN TO PREVIOUS IMMIGRATION STA18 TUS.—Any alien whose conditional permanent resi19 dent status is terminated under paragraph (1) shall

20 return to the immigration status the alien had im21 mediately prior to receiving conditional permanent

22 resident status under this subtitle.

23 (c) REQUIREMENTS OF TIMELY PETITION FOR RE24 MOVAL OF CONDITION.—
†

630

S 2611 ES

1 (1) IN GENERAL.—In order for the conditional

2 basis of permanent resident status obtained by an

3 alien under subsection (a) to be removed, the alien

4 must file with the Secretary, in accordance with

5 paragraph (3), a petition which requests the removal

6 of such conditional basis and which provides, under

7 penalty of perjury, the facts and information so that

8 the Secretary may make the determination described

9 in paragraph (2)(A).

10 (2) ADJUDICATION OF PETITION TO REMOVE

11 CONDITION.—

12 (A) IN GENERAL.—If a petition is filed in

13 accordance with paragraph (1) for an alien, the

14 Secretary shall make a determination as to

15 whether the alien meets the requirements set

16 out in subparagraphs (A) through (E) of sub17 section (d)(1).

18 (B) REMOVAL OF CONDITIONAL BASIS IF

19 FAVORABLE DETERMINATION.—If the Secretary

20 determines that the alien meets such require21 ments, the Secretary shall notify the alien of

22 such determination and immediately remove the

23 conditional basis of the status of the alien.

24 (C) TERMINATION IF ADVERSE DETER25 MINATION.—If the Secretary determines that
†

631

S 2611 ES

1 the alien does not meet such requirements, the

2 Secretary shall notify the alien of such deter3 mination and terminate the conditional perma4 nent resident status of the alien as of the date

5 of the determination.

6 (3) TIME TO FILE PETITION.—An alien may pe7 tition to remove the conditional basis to lawful resi8 dent status during the period beginning 180 days

9 before and ending 2 years after either the date that

10 is 6 years after the date of the granting of condi11 tional permanent resident status or any other expi12 ration date of the conditional permanent resident

13 status as extended by the Secretary in accordance

14 with this subtitle. The alien shall be deemed in con15 ditional permanent resident status in the United

16 States during the period in which the petition is

17 pending.

18 (d) DETAILS OF PETITION.—

19 (1) CONTENTS OF PETITION.—Each petition

20 for an alien under subsection (c)(1) shall contain in21 formation to permit the Secretary to determine

22 whether each of the following requirements is met:

23 (A) The alien has demonstrated good

24 moral character during the entire period the
†

632

S 2611 ES

1 alien has been a conditional permanent resi2 dent.

3 (B) The alien is in compliance with section

4 624(a)(1)(C).

5 (C) The alien has not abandoned the

6 alien’s residence in the United States. The Sec7 retary shall presume that the alien has aban8 doned such residence if the alien is absent from

9 the United States for more than 365 days, in

10 the aggregate, during the period of conditional

11 residence, unless the alien demonstrates that

12 alien has not abandoned the alien’s residence.

13 An alien who is absent from the United States

14 due to active service in the uniformed services

15 has not abandoned the alien’s residence in the

16 United States during the period of such service.

17 (D) The alien has completed at least 1 of

18 the following:

19 (i) The alien has acquired a degree

20 from an institution of higher education in

21 the United States or has completed at

22 least 2 years, in good standing, in a pro23 gram for a bachelor’s degree or higher de24 gree in the United States.
†

633

S 2611 ES

1 (ii) The alien has served in the uni2 formed services for at least 2 years and, if

3 discharged, has received an honorable dis4 charge.

5 (E) The alien has provided a list of all of

6 the secondary educational institutions that the

7 alien attended in the United States.

8 (2) HARDSHIP EXCEPTION.—

9 (A) IN GENERAL.—The Secretary may, in

10 the Secretary’s discretion, remove the condi11 tional status of an alien if the alien—

12 (i) satisfies the requirements of sub13 paragraphs (A), (B), and (C) of paragraph

14 (1);

15 (ii) demonstrates compelling cir16 cumstances for the inability to complete

17 the requirements described in paragraph

18 (1)(D); and

19 (iii) demonstrates that the alien’s re20 moval from the United States would result

21 in exceptional and extremely unusual hard22 ship to the alien or the alien’s spouse, par23 ent, or child who is a citizen or a lawful

24 permanent resident of the United States.
†

634

S 2611 ES

1 (B) EXTENSION.—Upon a showing of good

2 cause, the Secretary may extend the period of

3 the conditional resident status for the purpose

4 of completing the requirements described in

5 paragraph (1)(D).

6 (e) TREATMENT OF PERIOD FOR PURPOSES OF NAT7 URALIZATION.—For purposes of title III of the Immigra8 tion and Nationality Act (8 U.S.C. 1401 et seq.), in the

9 case of an alien who is in the United States as a lawful

10 permanent resident on a conditional basis under this sec11 tion, the alien shall be considered to have been admitted

12 as an alien lawfully admitted for permanent residence and

13 to be in the United States as an alien lawfully admitted

14 to the United States for permanent residence. However,

15 the conditional basis must be removed before the alien

16 may apply for naturalization.

17 SEC. 626. RETROACTIVE BENEFITS.

18 If, on the date of enactment of this Act, an alien has

19 satisfied all the requirements of subparagraphs (A)

20 through (E) of section 624(a)(1) and section

21 625(d)(1)(D), the Secretary may adjust the status of the

22 alien to that of a conditional resident in accordance with

23 section 624. The alien may petition for removal of such

24 condition at the end of the conditional residence period

25 in accordance with section 625(c) if the alien has met the
†

635

S 2611 ES

1 requirements of subparagraphs (A), (B), and (C) of sec2 tion 625(d)(1) during the entire period of conditional resi3 dence.

4 SEC. 627. EXCLUSIVE JURISDICTION.

5 (a) IN GENERAL.—The Secretary shall have exclusive

6 jurisdiction to determine eligibility for relief under this

7 subtitle, except where the alien has been placed into depor8 tation, exclusion, or removal proceedings either prior to

9 or after filing an application for relief under this subtitle,

10 in which case the Attorney General shall have exclusive

11 jurisdiction and shall assume all the powers and duties

12 of the Secretary until proceedings are terminated, or if

13 a final order of deportation, exclusion, or removal is en14 tered the Secretary shall resume all powers and duties del15 egated to the Secretary under this subtitle.

16 (b) STAY OF REMOVAL OF CERTAIN ALIENS EN17 ROLLED IN PRIMARY OR SECONDARY SCHOOL.—The At18 torney General shall stay the removal proceedings of any

19 alien who—

20 (1) meets all the requirements of subpara21 graphs (A), (B), (C), and (E) of section 624(a)(1);

22 (2) is at least 12 years of age; and

23 (3) is enrolled full time in a primary or sec24 ondary school.
†

636

S 2611 ES

1 (c) EMPLOYMENT.—An alien whose removal is stayed

2 pursuant to subsection (b) may be engaged in employment

3 in the United States, consistent with the Fair Labor

4 Standards Act (29 U.S.C. 201 et seq.), and State and

5 local laws governing minimum age for employment.

6 (d) LIFT OF STAY.—The Attorney General shall lift

7 the stay granted pursuant to subsection (b) if the alien—

8 (1) is no longer enrolled in a primary or sec9 ondary school; or

10 (2) ceases to meet the requirements of sub11 section (b)(1).

12 SEC. 628. PENALTIES FOR FALSE STATEMENTS IN APPLICA13 TION.

14 Whoever files an application for relief under this sub15 title and willfully and knowingly falsifies, misrepresents,

16 or conceals a material fact or makes any false or fraudu17 lent statement or representation, or makes or uses any

18 false writing or document knowing the same to contain

19 any false or fraudulent statement or entry, shall be fined

20 in accordance with title 18, United States Code, or impris21 oned not more than 5 years, or both.

22 SEC. 629. CONFIDENTIALITY OF INFORMATION.

23 (a) PROHIBITION.—No officer or employee of the

24 United States may—
†

637

S 2611 ES

1 (1) use the information furnished by the appli2 cant pursuant to an application filed under this sub3 title to initiate removal proceedings against any per4 sons identified in the application;

5 (2) make any publication whereby the informa6 tion furnished by any particular individual pursuant

7 to an application under this subtitle can be identi8 fied; or

9 (3) permit anyone other than an officer or em10 ployee of the United States Government or, in the

11 case of applications filed under this subtitle with a

12 designated entity, that designated entity, to examine

13 applications filed under this subtitle.

14 (b) REQUIRED DISCLOSURE.—The Attorney General

15 or the Secretary shall provide the information furnished

16 under this section, and any other information derived from

17 such furnished information, to—

18 (1) a duly recognized law enforcement entity in

19 connection with an investigation or prosecution of an

20 offense described in paragraph (2) or (3) of section

21 212(a) of the Immigration and Nationality Act (8

22 U.S.C. 1182(a)), when such information is requested

23 in writing by such entity; or

24 (2) an official coroner for purposes of affirma25 tively identifying a deceased individual (whether or
†

638

S 2611 ES

1 not such individual is deceased as a result of a

2 crime).

3 (c) PENALTY.—Whoever knowingly uses, publishes,

4 or permits information to be examined in violation of this

5 section shall be fined not more than $10,000.

6 SEC. 630. EXPEDITED PROCESSING OF APPLICATIONS; PRO7 HIBITION ON FEES.

8 Regulations promulgated under this subtitle shall

9 provide that applications under this subtitle will be consid10 ered on an expedited basis and without a requirement for

11 the payment by the applicant of any additional fee for

12 such expedited processing.

13 SEC. 631. HIGHER EDUCATION ASSISTANCE.

14 Notwithstanding any provision of the Higher Edu15 cation Act of 1965 (20 U.S.C. 1001 et seq.), with respect

16 to assistance provided under title IV of the Higher Edu17 cation Act of 1965 (20 U.S.C. 1070 et seq.), an alien who

18 adjusts status to that of a lawful permanent resident

19 under this subtitle shall be eligible only for the following

20 assistance under such title IV:

21 (1) Student loans under parts B, D, and E of

22 such title IV (20 U.S.C. 1071 et seq., 1087a et seq.,

23 1087aa et seq.), subject to the requirements of such

24 parts.
†

639

S 2611 ES

1 (2) Federal work-study programs under part C

2 of such title IV (42 U.S.C. 2751 et seq.), subject to

3 the requirements of such part.

4 (3) Services under such title IV (20 U.S.C.

5 1070 et seq.), subject to the requirements for such

6 services.

7 SEC. 632. GAO REPORT.

8 Seven years after the date of enactment of this Act,

9 the Comptroller General of the United States shall submit

10 a report to the Committee on the Judiciary of the Senate

11 and the Committee on the Judiciary of the House of Rep12 resentatives, which sets forth—

13 (1) the number of aliens who were eligible for

14 cancellation of removal and adjustment of status

15 under section 624(a);

16 (2) the number of aliens who applied for adjust17 ment of status under section 624(a);

18 (3) the number of aliens who were granted ad19 justment of status under section 624(a); and

20 (4) the number of aliens whose conditional per21 manent resident status was removed under section

22 625.
†

640

S 2611 ES

1 Subtitle D—Programs To Assist

2 Nonimmigrant Workers

3 SEC. 641. INELIGIBILITY AND REMOVAL PRIOR TO APPLI4 CATION PERIOD.

5 (a) LIMITATIONS ON INELIGIBILITY.—

6 (1) IN GENERAL.—An alien is not ineligible for

7 any immigration benefit under any provision of this

8 title, or any amendment made by this title, solely on

9 the basis that the alien violated section 1543, 1544,

10 or 1546 of chapter 75 of title 18, United States

11 Code, during the period beginning on the date of the

12 enactment of this Act and ending on the date that

13 the Department of Homeland Security begins ac14 cepting applications for benefits under title VI.

15 (2) PROSECUTION.—An alien who commits a

16 violation of such section 1543, 1544, or 1546 during

17 the period beginning on the date the enactment of

18 this Act and ending on the date that the alien ap19 plies for eligibility for such benefit may be pros20 ecuted for the violation if the alien’s application for

21 such benefit is denied.

22 (b) LIMITATION ON REMOVAL.—If an alien who is

23 apprehended prior to the beginning of the applicable appli24 cation period described in a provision of this title, or an

25 amendment made by this title, is able to establish prima
†

641

S 2611 ES

1 facie eligibility for an adjustment of status under such a

2 provision, the alien may not be removed from the United

3 States for any reason until the date that is 180 days after

4 the first day of such applicable application period unless

5 the alien has engaged in criminal conduct or is a threat

6 to the national security of the United States.

7 SEC. 642. GRANTS TO SUPPORT PUBLIC EDUCATION AND

8 COMMUNITY TRAINING.

9 (a) GRANTS AUTHORIZED.—The Assistant Attorney

10 General, Office of Justice Programs, may award grants

11 to qualified non-profit community organizations to edu12 cate, train, and support non-profit agencies, immigrant

13 communities, and other interested entities regarding the

14 provisions of this Act and the amendments made by this

15 Act.

16 (b) USE OF FUNDS.—

17 (1) IN GENERAL.—Grants awarded under this

18 section shall be used—

19 (A) for public education, training, technical

20 assistance, government liaison, and all related

21 costs (including personnel and equipment) in22 curred by the grantee in providing services re23 lated to this Act; and

24 (B) to educate, train, and support non25 profit organizations, immigrant communities,
†

642

S 2611 ES

1 and other interested parties regarding this Act

2 and the amendments made by this Act and on

3 matters related to its implementation.

4 (2) EDUCATION.—In addition to the purposes

5 described in paragraph (1), grants awarded under

6 this section shall be used to—

7 (A) educate immigrant communities and

8 other interested entities regarding—

9 (i) the individuals and organizations

10 that can provide authorized legal represen11 tation in immigration matters under regu12 lations prescribed by the Secretary; and

13 (ii) the dangers of securing legal ad14 vice and assistance from those who are not

15 authorized to provide legal representation

16 in immigration matters;

17 (B) educate interested entities regarding

18 the requirements for obtaining nonprofit rec19 ognition and accreditation to represent immi20 grants under regulations prescribed by the Sec21 retary;

22 (C) provide nonprofit agencies with train23 ing and technical assistance on the recognition

24 and accreditation process; and
†

643

S 2611 ES

1 (D) educate nonprofit community organi2 zations, immigrant communities, and other in3 terested entities regarding—

4 (i) the process for obtaining benefits

5 under this Act or under an amendment

6 made by this Act; and

7 (ii) the availability of authorized legal

8 representation for low-income persons who

9 may qualify for benefits under this Act or

10 under an amendment made by this Act.

11 (c) DIVERSITY.—The Assistant Attorney General

12 shall ensure, to the extent possible, that the nonprofit

13 community organizations receiving grants under this sec14 tion serve geographically diverse locations and ethnically

15 diverse populations who may qualify for benefits under the

16 Act.

17 (d) AUTHORIZATION OF APPROPRIATIONS.—There

18 are authorized to be appropriated to the Office of Justice

19 Programs of the Department of Justice such sums as may

20 be necessary for each of the fiscal years 2007 through

21 2009 to carry out this section.

22 SEC. 643. STRENGTHENING AMERICAN CITIZENSHIP.

23 (a) SHORT TITLE.—This section may be cited as the

24 ‘‘Strengthening American Citizenship Act of 2006’’.
†

644

S 2611 ES

1 (b) DEFINITION.—In this section, the term ‘‘Oath of

2 Allegiance’’ means the binding oath (or affirmation) of al3 legiance required to be naturalized as a citizen of the

4 United States, as prescribed in section 337(e) of the Im5 migration and Nationality Act, as added by subsection

6 (h)(1)(B).

7 (c) ENGLISH FLUENCY.—

8 (1) EDUCATION GRANTS.—

9 (A) ESTABLISHMENT.—The Chief of the

10 Office of Citizenship of the Department (re11 ferred to in this paragraph as the ‘‘Chief’’)

12 shall establish a grant program to provide

13 grants in an amount not to exceed $500 to as14 sist legal residents of the United States who de15 clare an intent to apply for citizenship in the

16 United States to meet the requirements under

17 section 312 of the Immigration and Nationality

18 Act (8 U.S.C. 1423).

19 (B) USE OF FUNDS.—Grant funds award20 ed under this paragraph shall be paid directly

21 to an accredited institution of higher education

22 or other qualified educational institution (as de23 termined by the Chief) for tuition, fees, books,

24 and other educational resources required by a
†

645

S 2611 ES

1 course on the English language in which the

2 legal resident is enrolled.

3 (C) APPLICATION.—A legal resident desir4 ing a grant under this paragraph shall submit

5 an application to the Chief at such time, in

6 such manner, and accompanied by such infor7 mation as the Chief may reasonably require.

8 (D) PRIORITY.—If insufficient funds are

9 available to award grants to all qualified appli10 cants, the Chief shall give priority based on the

11 financial need of the applicants.

12 (E) NOTICE.—The Secretary, upon rel13 evant registration of a legal resident with the

14 Department, shall notify such legal resident of

15 the availability of grants under this paragraph

16 for legal residents who declare an intent to

17 apply for United States citizenship.

18 (F) DEFINITION.—For purposes of this

19 subsection, the term ‘‘legal resident’’ means a

20 lawful permanent resident or a lawfully admit21 ted alien who, in order to adjust status to that

22 of a lawful permanent resident must dem23 onstrate a knowledge of the English language

24 or satisfactory pursuit of a course of study to
†

646

S 2611 ES

1 acquire such knowledge of the English lan2 guage.

3 (2) FASTER CITIZENSHIP FOR ENGLISH FLU4 ENCY.—Section 316 (8 U.S.C. 1427) is amended by

5 adding at the end the following:

6 ‘‘(g) A lawful permanent resident of the United

7 States who demonstrates English fluency, in accordance

8 with regulations prescribed by the Secretary of Homeland

9 Security, in consultation with the Secretary of State, will

10 satisfy the residency requirement under subsection (a)

11 upon the completion of 4 years of continuous legal resi12 dency in the United States.’’.

13 (3) SAVINGS PROVISION.—Nothing in this sub14 section shall be construed to—

15 (A) modify the English language require16 ments for naturalization under section

17 312(a)(1) of the Immigration and Nationality

18 Act (8 U.S.C. 1423(a)(1)); or

19 (B) influence the naturalization test rede20 sign process of the Office of Citizenship (except

21 for the requirement under subsection (h)(2)).

22 (d) AMERICAN CITIZENSHIP GRANT PROGRAM.—

23 (1) IN GENERAL.—The Secretary shall establish

24 a competitive grant program to provide financial as25 sistance for—
†

647

S 2611 ES

1 (A) efforts by entities (including veterans

2 and patriotic organizations) certified by the Of3 fice of Citizenship to promote the patriotic inte4 gration of prospective citizens into the Amer5 ican way of life by providing civics, history, and

6 English as a second language courses, with a

7 specific emphasis on attachment to principles of

8 the Constitution of the United States, the he9 roes of American history (including military he10 roes), and the meaning of the Oath of Alle11 giance; and

12 (B) other activities approved by the Sec13 retary to promote the patriotic integration of

14 prospective citizens and the implementation of

15 the Immigration and Nationality Act (8 U.S.C.

16 1101 et seq.), including grants—

17 (i) to promote an understanding of

18 the form of government and history of the

19 United States; and

20 (ii) to promote an attachment to the

21 principles of the Constitution of the United

22 States and the well being and happiness of

23 the people of the United States.

24 (2) ACCEPTANCE OF GIFTS.—The Secretary

25 may accept and use gifts from the United States
†

648

S 2611 ES

1 Citizenship Foundation, if the foundation is estab2 lished under subsection (e), for grants under this

3 subsection.

4 (3) AUTHORIZATION OF APPROPRIATIONS.—

5 There are authorized to be appropriated such sums

6 as may be necessary to carry out this subsection.

7 (e) FUNDING FOR THE OFFICE OF CITIZENSHIP.—

8 (1) AUTHORIZATION.—The Secretary, acting

9 through the Director of the Bureau of Citizenship

10 and Immigration Services, is authorized to establish

11 the United States Citizenship Foundation (referred

12 to in this subsection as the ‘‘Foundation’’), an orga13 nization duly incorporated in the District of Colum14 bia, exclusively for charitable and educational pur15 poses to support the functions of the Office of Citi16 zenship.

17 (2) DEDICATED FUNDING.—

18 (A) IN GENERAL.—Not less than 1.5 per19 cent of the funds made available to the Bureau

20 of Citizenship and Immigration Services from

21 fees shall be dedicated to the functions of the

22 Office of Citizenship, which shall include the

23 patriotic integration of prospective citizens

24 into—
†

649

S 2611 ES

1 (i) American common values and tra2 ditions, including an understanding of

3 American history and the principles of the

4 Constitution of the United States; and

5 (ii) civic traditions of the United

6 States, including the Pledge of Allegiance,

7 respect for the flag of the United States,

8 and voting in public elections.

9 (B) SENSE OF CONGRESS.—It is the sense

10 of Congress that dedicating increased funds to

11 the Office of Citizenship should not result in an

12 increase in fees charged by the Bureau of Citi13 zenship and Immigration Services.

14 (3) GIFTS.—

15 (A) TO FOUNDATION.—The Foundation

16 may solicit, accept, and make gifts of money

17 and other property in accordance with section

18 501(c)(3) of the Internal Revenue Code of

19 1986.

20 (B) FROM FOUNDATION.—The Office of

21 Citizenship may accept gifts from the Founda22 tion to support the functions of the Office.

23 (4) AUTHORIZATION OF APPROPRIATIONS.—

24 There are authorized to be appropriated such sums

25 as may be necessary to carry out the mission of the
†

650

S 2611 ES

1 Office of Citizenship, including the functions de2 scribed in paragraph (2)(A).

3 (f) RESTRICTION ON USE OF FUNDS.—No funds ap4 propriated to carry out a program under this subsection

5 (d) or (e) may be used to organize individuals for the pur6 pose of political activism or advocacy.

7 (g) REPORTING REQUIREMENT.—

8 (1) IN GENERAL.—The Chief of the Office of

9 Citizenship shall submit an annual report to the

10 Committee on Health, Education, Labor, and Pen11 sions of the Senate, the Committee on the Judiciary

12 of the Senate, the Committee on Education and the

13 Workforce of the House of Representatives, and the

14 Committee on the Judiciary of the House of Rep15 resentatives.

16 (2) CONTENTS.—The report submitted under

17 paragraph (1) shall include—

18 (A) a list of the entities that have received

19 funds from the Office of Citizenship during the

20 reporting period under this section and the

21 amount of funding received by each such entity;

22 (B) an evaluation of the extent to which

23 grants received under this section successfully

24 promoted an understanding of—

25 (i) the English language; and
†

651

S 2611 ES

1 (ii) American history and government,

2 including the heroes of American history,

3 the meaning of the Oath of Allegiance, and

4 an attachment to the principles of the Con5 stitution of the United States; and

6 (C) information about the number of legal

7 residents who were able to achieve the knowl8 edge described under paragraph (2) as a result

9 of the grants provided under this section.

10 (h) OATH OR AFFIRMATION OF RENUNCIATION AND

11 ALLEGIANCE.—

12 (1) REVISION OF OATH.—Section 337 (8 U.S.C.

13 1448) is amended—

14 (A) in subsection (a), by striking ‘‘under

15 section 310(b) an oath’’ and all that follows

16 through ‘‘personal moral code.’’ and inserting

17 ‘‘under section 310(b), the oath (or affirmation)

18 of allegiance prescribed in subsection (e).’’; and

19 (B) by adding at the end the following:

20 ‘‘(e)(1) Subject to paragraphs (2) and (3), the oath

21 (or affirmation) of allegiance prescribed in this subsection

22 is as follows: ‘I take this oath solemnly, freely, and without

23 any mental reservation. I absolutely and entirely renounce

24 all allegiance to any foreign state or power of which I have

25 been a subject or citizen. My fidelity and allegiance from
†

652

S 2611 ES

1 this day forward are to the United States of America. I

2 will bear true faith and allegiance to the Constitution and

3 laws of the United States, and will support and defend

4 them against all enemies, foreign and domestic. I will bear

5 arms, or perform noncombatant military or civilian serv6 ice, on behalf of the United States when required by law.

7 This I do solemnly swear, so help me God.’.

8 ‘‘(2) If a person, by reason of religious training and

9 belief (or individual interpretation thereof) or for other

10 reasons of good conscience, cannot take the oath pre11 scribed in paragraph (1)—

12 ‘‘(A) with the term ‘oath’ included, the term

13 ‘affirmation’ shall be substituted for the term ‘oath’;

14 and

15 ‘‘(B) with the phrase ‘so help me God’ included,

16 the phrase ‘so help me God’ shall be omitted.

17 ‘‘(3) If a person shows by clear and convincing evi18 dence to the satisfaction of the Attorney General that such

19 person, by reason of religious training and belief, cannot

20 take the oath prescribed in paragraph (1)—

21 ‘‘(A) because such person is opposed to the

22 bearing of arms in the Armed Forces of the United

23 States, the words ‘bear arms, or’ shall be omitted;

24 and
†

653

S 2611 ES

1 ‘‘(B) because such person is opposed to any

2 type of service in the Armed Forces of the United

3 States, the words ‘bear arms, or’ and ‘noncombatant

4 military or’ shall be omitted.

5 ‘‘(4) As used in this subsection, the term ‘religious

6 training and belief’—

7 ‘‘(A) means a belief of an individual in relation

8 to a Supreme Being involving duties superior to

9 those arising from any human relation; and

10 ‘‘(B) does not include essentially political, socio11 logical, or philosophical views or a merely personal

12 moral code.

13 ‘‘(5) Any reference in this title to ‘oath’ or ‘oath of

14 allegiance’ under this section shall be deemed to refer to

15 the oath (or affirmation) of allegiance prescribed under

16 this subsection.’’.

17 (2) HISTORY AND GOVERNMENT TEST.—The

18 Secretary shall incorporate a knowledge and under19 standing of the meaning of the Oath of Allegiance

20 into the history and government test given to appli21 cants for citizenship.

22 (3) NOTICE TO FOREIGN EMBASSIES.—Upon

23 the naturalization of a new citizen, the Secretary, in

24 cooperation with the Secretary of State, shall notify
†

654

S 2611 ES

1 the embassy of the country of which the new citizen

2 was a citizen or subject that such citizen has—

3 (A) renounced allegiance to that foreign

4 country; and

5 (B) sworn allegiance to the United States.

6 (4) EFFECTIVE DATE.—The amendments made

7 by paragraph (1) shall take effect on the date that

8 is 6 months after the date of enactment of this Act.

9 (i) ESTABLISHMENT OF NEW CITIZENS AWARD PRO10 GRAM.—

11 (1) ESTABLISHMENT.—There is established a

12 new citizens award program to recognize citizens

13 who—

14 (A) have made an outstanding contribution

15 to the United States; and

16 (B) were naturalized during the 10-year

17 period ending on the date of such recognition.

18 (2) PRESENTATION AUTHORIZED.—

19 (A) IN GENERAL.—The President is au20 thorized to present a medal, in recognition of

21 outstanding contributions to the United States,

22 to citizens described in paragraph (1).

23 (B) MAXIMUM NUMBER OF AWARDS.—Not

24 more than 10 citizens may receive a medal

25 under this subsection in any calendar year.
†

655

S 2611 ES

1 (3) DESIGN AND STRIKING.—The Secretary of

2 the Treasury shall strike a medal with suitable em3 blems, devices, and inscriptions, to be determined by

4 the President.

5 (4) NATIONAL MEDALS.—The medals struck

6 pursuant to this subsection are national medals for

7 purposes of chapter 51 of title 31, United States

8 Code.

9 (j) NATURALIZATION CEREMONIES.—

10 (1) IN GENERAL.—The Secretary, in consulta11 tion with the Director of the National Park Service,

12 the Archivist of the United States, and other appro13 priate Federal officials, shall develop and implement

14 a strategy to enhance the public awareness of natu15 ralization ceremonies.

16 (2) VENUES.—In developing the strategy under

17 this subsection, the Secretary shall consider the use

18 of outstanding and historic locations as venues for

19 select naturalization ceremonies.

20 (3) REPORTING REQUIREMENT.—The Secretary

21 shall submit an annual report to Congress that

22 includes—

23 (A) the content of the strategy developed

24 under this subsection; and
†

656

S 2611 ES

1 (B) the progress made towards the imple2 mentation of such strategy.

3 SEC. 644. SUPPLEMENTAL IMMIGRATION FEE.

4 (a) AUTHORIZATION OF FEE.—

5 (1) IN GENERAL.—Subject to paragraph (2),

6 any alien who receives any immigration benefit

7 under this title, or the amendments made by this

8 title, shall, before receiving such benefit, pay a fee

9 to the Secretary in an amount equal to $500, in ad10 dition to other applicable fees and penalties imposed

11 under this title, or the amendments made by this

12 title.

13 (2) FEES CONTINGENT ON APPROPRIATIONS.—

14 No fee may be collected under this section except to

15 the extent that the expenditure of the fee to pay the

16 costs of activities and services for which the fee is

17 imposed, as described in subsection (b), is provided

18 for in advance in an appropriations Act.

19 (b) DEPOSIT AND EXPENDITURE OF FEES.—

20 (1) DEPOSIT.—Amounts collected under sub21 section (a) shall be deposited as an offsetting collec22 tion in, and credited to, the accounts providing

23 appropriations—
†

657

S 2611 ES

1 (A) to carry out the apprehension and de2 tention of any alien who is inadmissible by rea3 son of any offense described in section 212(a);

4 (B) to carry out the apprehension and de5 tention of any alien who is deportable for any

6 offense under section 237(a);

7 (C) to acquire border sensor and surveil8 lance technology;

9 (D) for air and marine interdiction, oper10 ations, maintenance, and procurement;

11 (E) for construction projects in support of

12 the United States Customs and Border Protec13 tion;

14 (F) to train Federal law enforcement per15 sonnel; and

16 (G) for maritime security activities.

17 (2) AVAILABILITY OF FEES.—Amounts depos18 ited under paragraph (1) shall remain available until

19 expended for the activities and services described in

20 paragraph (1).

21 SEC. 645. ADDRESSING POVERTY IN MEXICO.

22 (a) FINDINGS.—Congress finds the following:

23 (1) There is a strong correlation between eco24 nomic freedom and economic prosperity.
†

658

S 2611 ES

1 (2) Trade policy, fiscal burden of government,

2 government intervention in the economy, monetary

3 policy, capital flows and foreign investment, banking

4 and finance, wages and prices, property rights, regu5 lation, and informal market activity are key factors

6 in economic freedom.

7 (3) Poverty in Mexico, including rural poverty,

8 can be mitigated through strengthened economic

9 freedom within Mexico.

10 (4) Strengthened economic freedom in Mexico

11 can be a major influence in mitigating illegal immi12 gration.

13 (5) Advancing economic freedom within Mexico

14 is an important part of any comprehensive plan to

15 understanding the sources of poverty and the path

16 to economic prosperity.

17 (b) GRANT AUTHORIZED.—The Secretary of State

18 may award a grant to a land grant university in the

19 United States to establish a national program for a broad,

20 university-based Mexican rural poverty mitigation pro21 gram.

22 (c) FUNCTIONS OF MEXICAN RURAL POVERTY MITI23 GATION PROGRAM.—The program established pursuant to

24 subsection (b) shall—
†

659

S 2611 ES

1 (1) match a land grant university in the United

2 States with the lead Mexican public university in

3 each of Mexico’s 31 states to provide state-level co4 ordination of rural poverty programs in Mexico;

5 (2) establish relationships and coordinate pro6 grammatic ties between universities in the United

7 States and universities in Mexico to address the

8 issue of rural poverty in Mexico;

9 (3) establish and coordinate relationships with

10 key leaders in the United States and Mexico to ex11 plore the effect of rural poverty on illegal immigra12 tion of Mexicans into the United States; and

13 (4) address immigration and border security

14 concerns through a university-based, binational ap15 proach for long-term institutional change.

16 (d) USE OF FUNDS.—

17 (1) AUTHORIZED USES.—Grant funds awarded

18 under this section may be used—

19 (A) for education, training, technical as20 sistance, and any related expenses (including

21 personnel and equipment) incurred by the

22 grantee in implementing a program described in

23 subsection (a); and

24 (B) to establish an administrative struc25 ture for such program in the United States.
†

660

S 2611 ES

1 (2) LIMITATIONS.—Grant funds awarded under

2 this section may not be used for activities, respon3 sibilities, or related costs incurred by entities in

4 Mexico.

5 (e) AUTHORIZATION OF APPROPRIATIONS.—There

6 are authorized to be appropriated such funds as may be

7 necessary to carry out this section.

8 TITLE VII—MISCELLANEOUS

9 Subtitle A—Immigration Litigation

10 Reduction

11 CHAPTER 1—APPEALS AND REVIEW

12 SEC. 701. ADDITIONAL IMMIGRATION PERSONNEL.

13 (a) DEPARTMENT OF HOMELAND SECURITY.—

14 (1) TRIAL ATTORNEYS.—In each of fiscal years

15 2007 through 2011, the Secretary shall, subject to

16 the availability of appropriations for such purpose,

17 increase the number of positions for attorneys in the

18 Office of General Counsel of the Department who

19 represent the Department in immigration matters by

20 not less than 100 above the number of such posi21 tions for which funds were made available during

22 each preceding fiscal year.

23 (2) AUTHORIZATION OF APPROPRIATIONS.—

24 There are authorized to be appropriated to the Sec25 retary for each of fiscal years 2007 through 2011
†

661

S 2611 ES

1 such sums as may be necessary to carry out this

2 subsection.

3 (b) DEPARTMENT OF JUSTICE.—

4 (1) LITIGATION ATTORNEYS.—In each of fiscal

5 years 2007 through 2011, the Attorney General

6 shall, subject to the availability of appropriations for

7 such purpose, increase by not less than 50 the num8 ber of positions for attorneys in the Office of Immi9 gration Litigation of the Department of Justice.

10 (2) UNITED STATES ATTORNEYS.—In each of

11 fiscal years 2007 through 2011, the Attorney Gen12 eral shall, subject to the availability of appropria13 tions for such purpose, increase by not less than 50

14 the number of attorneys in the United States Attor15 neys’ office to litigate immigration cases in the Fed16 eral courts.

17 (3) IMMIGRATION JUDGES.—In each of fiscal

18 years 2007 through 2011, the Attorney General

19 shall, subject to the availability of appropriations for

20 such purpose—

21 (A) increase by not less than 20 the num22 ber of full-time immigration judges compared to

23 the number of such positions for which funds

24 were made available during the preceding fiscal

25 year; and
†

662

S 2611 ES

1 (B) increase by not less than 80 the num2 ber of positions for personnel to support the im3 migration judges described in subparagraph (A)

4 compared to the number of such positions for

5 which funds were made available during the

6 preceding fiscal year.

7 (4) STAFF ATTORNEYS.—In each of fiscal years

8 2007 through 2011, the Attorney General shall, sub9 ject to the availability of appropriations for such

10 purpose—

11 (A) increase by not less than 10 the num12 ber of positions for full-time staff attorneys in

13 the Board of Immigration Appeals compared to

14 the number of such positions for which funds

15 were made available during the preceding fiscal

16 year; and

17 (B) increase by not less than 10 the num18 ber of positions for personnel to support the

19 staff attorneys described in subparagraph (A)

20 compared to the number of such positions for

21 which funds were made available during the

22 preceding fiscal year

23 (5) AUTHORIZATION OF APPROPRIATIONS.—

24 There are authorized to be appropriated to the At25 torney General for each of the fiscal years 2007
†

663

S 2611 ES

1 through 2011 such sums as may be necessary to

2 carry out this subsection, including the hiring of

3 necessary support staff.

4 (c) ADMINISTRATIVE OFFICE OF THE UNITED

5 STATES COURTS.—In each of the fiscal years 2007

6 through 2011, the Director of the Administrative Office

7 of the United States Courts shall, subject to the avail8 ability of appropriations, increase by not less than 50 the

9 number of attorneys in the Federal Defenders Program

10 who litigate criminal immigration cases in the Federal

11 courts.

12 CHAPTER 2—IMMIGRATION REVIEW

13 REFORM

14 SEC. 702. BOARD OF IMMIGRATION APPEALS.

15 (a) COMPOSITION AND APPOINTMENT.—Notwith16 standing any other provision of law, the Board of Immi17 gration Appeals of the Department of Justice (referred to

18 in this section as the ‘‘Board’’), shall be composed of a

19 Chair and 22 other immigration appeals judges, who shall

20 be appointed by the Attorney General. Upon the expiration

21 of a term of office, a Board member may continue to act

22 until a successor has been appointed and qualified.

23 (b) QUALIFICATIONS.—Each member of the Board,

24 including the Chair, shall—
†

664

S 2611 ES

1 (1) be an attorney in good standing of a bar of

2 a State or the District of Columbia;

3 (2) have at least—

4 (A) 7 years of professional, legal expertise;

5 or

6 (B) 5 years of professional, legal expertise

7 in immigration and nationality law; and

8 (3) meet the minimum appointment require9 ments of an administrative law judge under title 5,

10 United States Code.

11 (c) DUTIES OF THE CHAIR.—The Chair of the Board,

12 subject to the supervision of the Director of the Executive

13 Office for Immigration Review, shall—

14 (1) be responsible, on behalf of the Board, for

15 the administrative operations of the Board and shall

16 have the power to appoint such administrative as17 sistants, attorneys, clerks, and other personnel as

18 may be needed for that purpose;

19 (2) direct, supervise, and establish internal op20 erating procedures and policies of the Board;

21 (3) designate a member of the Board to act as

22 Chair if the Chair is absent or unavailable;

23 (4) adjudicate cases as a member of the Board;

24 (5) form 3-member panels as provided by sub25 section (g);
†

665

S 2611 ES

1 (6) direct that a case be heard en banc as pro2 vided by subsection (h); and

3 (7) exercise such other authorities as the Direc4 tor may provide.

5 (d) BOARD MEMBERS DUTIES.—In deciding a case

6 before the Board, the Board—

7 (1) shall exercise independent judgment and

8 discretion; and

9 (2) may take any action that is appropriate and

10 necessary for the disposition of such case that is

11 consistent with the authority provided in this section

12 and any regulations established in accordance with

13 this section.

14 (e) JURISDICTION.—

15 (1) IN GENERAL.—The Board shall have juris16 diction to hear appeals described in section

17 1003.1(b) of title 8, Code of Federal Regulations (or

18 any corresponding similar regulation).

19 (2) LIMITATION.—The Board shall not have ju20 risdiction to hear an appeal of a decision of an im21 migration judge for an order of removal entered in

22 absentia.

23 (f) SCOPE OF REVIEW.—

24 (1) FINDINGS OR FACT.—The Board shall—
†

666

S 2611 ES

1 (A) accept findings of fact determined by

2 an immigration judge, including findings as to

3 the credibility of testimony, unless the findings

4 are clearly erroneous; and

5 (B) give due deference to an immigration

6 judge’s application of the law to the facts.

7 (2) QUESTIONS OF LAW.—The Board shall re8 view de novo questions of law, discretion, and judg9 ment, and all other issues in appeals from decisions

10 of immigration judges.

11 (3) APPEALS FROM OFFICERS’ DECISIONS.—

12 (A) STANDARD OF REVIEW.—The Board

13 shall review de novo all questions arising in ap14 peals from decisions issued by officers of the

15 Department.

16 (B) PROHIBITION OF FACT FINDING.—Ex17 cept for taking administrative notice of com18 monly known facts such as current events or

19 the contents of official documents, the Board

20 may not engage in fact-finding in the course of

21 deciding appeals.

22 (C) REMAND.—A party asserting that the

23 Board cannot properly resolve an appeal with24 out further fact-finding shall file a motion for

25 remand. If further fact-finding is needed in a
†

667

S 2611 ES

1 case, the Board shall remand the proceeding to

2 the immigration judge or, as appropriate, to the

3 Secretary.

4 (g) PANELS.—

5 (1) IN GENERAL.—Except as provided in para6 graph (5) all cases shall be subject to review by a

7 3-member panel. The Chair shall divide the Board

8 into 3-member panels and designate a presiding

9 member.

10 (2) AUTHORITY.—Each panel may exercise the

11 appropriate authority of the Board that is necessary

12 for the adjudication of cases before the Board.

13 (3) QUORUM.—Two members appointed to a

14 panel shall constitute a quorum for such panel.

15 (4) CHANGES IN COMPOSITION.—The Chair

16 may from time to time make changes in the com17 position of a panel and of the presiding member of

18 a panel.

19 (5) PRESIDING MEMBER DECISIONS.—The pre20 siding member of a panel may act alone on any mo21 tion as provided in paragraphs (2) and (3) of sub22 section (i) and may not otherwise dismiss or deter23 mine an appeal as a single Board member.

24 (h) EN BANC PROCESS.—
†

668

S 2611 ES

1 (1) IN GENERAL.—The Board may on its own

2 motion, by a majority vote of the Board members,

3 or by direction of the Chair—

4 (A) consider any case as the full Board en

5 banc; or

6 (B) reconsider as the full Board en banc

7 any case that has been considered or decided by

8 a 3-member panel or by a limited en banc

9 panel.

10 (2) QUORUM.—A majority of the Board mem11 bers shall constitute a quorum of the Board sitting

12 en banc.

13 (i) DECISIONS OF THE BOARD.—

14 (1) AFFIRMANCE WITHOUT OPINION.—Upon in15 dividualized review of a case, the Board may affirm

16 the decision of an immigration judge without opinion

17 only if—

18 (A) the decision of the immigration judge

19 resolved all issues in the case;

20 (B) the issue on appeal is squarely con21 trolled by existing Board or Federal court

22 precedent and does not involve the application

23 of precedent to a novel fact situation;

24 (C) the factual and legal questions raised

25 on appeal are so insubstantial that the case
†

669

S 2611 ES

1 does not warrant the issuance of a written opin2 ion in the case; and

3 (D) the Board approves both the result

4 reached in the decision below and all of the rea5 soning of that decision.

6 (2) SUMMARY DISMISSAL OF APPEALS.—The 3-

7 member panel or the presiding member acting alone

8 may summarily dismiss any appeal or portion of any

9 appeal in any case which—

10 (A) the party seeking the appeal fails to

11 specify the reasons for the appeal;

12 (B) the only reason for the appeal specified

13 by such party involves a finding of fact or a

14 conclusion of law that was conceded by that

15 party at a prior proceeding;

16 (C) the appeal is from an order that grant17 ed such party the relief that had been re18 quested;

19 (D) the appeal is determined to be filed for

20 an improper purpose, such as to cause unneces21 sary delay; or

22 (E) the appeal lacks an arguable basis in

23 fact or in law and is not supported by a good

24 faith argument for extension, modification, or

25 reversal of existing law.
†

670

S 2611 ES

1 (3) UNOPPOSED DISPOSITIONS.—The 3-member

2 panel or the presiding member acting alone may—

3 (A) grant an unopposed motion or a mo4 tion to withdraw an appeal pending before the

5 Board; or

6 (B) adjudicate a motion to remand any

7 appeal—

8 (i) from the decision of an officer of

9 the Department if the appropriate official

10 of the Department requests that the mat11 ter be remanded back for further consider12 ation;

13 (ii) if remand is required because of a

14 defective or missing transcript; or

15 (iii) if remand is required for any

16 other procedural or ministerial issue.

17 (4) NOTICE OF RIGHT TO APPEAL.—The deci18 sion by the Board shall include notice to the alien

19 of the alien’s right to file a petition for review in a

20 United States Court of Appeals not later than 30

21 days after the date of the decision.

22 SEC. 703. IMMIGRATION JUDGES.

23 (a) APPOINTMENT OF IMMIGRATION JUDGES.—

24 (1) IN GENERAL.—The Chief Immigration

25 Judge (as described in section 1003.9 of title 8,
†

671

S 2611 ES

1 Code of Federal Regulations, or any corresponding

2 similar regulation) and other immigration judges

3 shall be appointed by the Attorney General. Upon

4 the expiration of a term of office, the immigration

5 judge may continue to act until a successor has been

6 appointed and qualified.

7 (2) QUALIFICATIONS.—Each immigration

8 judge, including the Chief Immigration Judge, shall

9 be an attorney in good standing of a bar of a State

10 or the District of Columbia and shall have at least

11 5 years of professional, legal expertise or at least 3

12 years professional or legal expertise in immigration

13 and nationality law.

14 (b) JURISDICTION.—An Immigration judge shall

15 have the authority to hear matters related to any removal

16 proceeding pursuant to section 240 of the Immigration

17 and Nationality Act (8 U.S.C. 1229a) described in section

18 1240.1(a) of title 8, Code of Federal Regulations (or any

19 corresponding similar regulation).

20 (c) DUTIES OF IMMIGRATION JUDGES.—In deciding

21 a case, an immigration judge—

22 (1) shall exercise independent judgment and

23 discretion; and

24 (2) may take any action that is appropriate and

25 necessary for the disposition of such case that is
†

672

S 2611 ES

1 consistent with their authorities under this section

2 and regulations established in accordance with this

3 section.

4 (d) REVIEW.—Decisions of immigration judges are

5 subject to review by the Board of Immigration Appeals

6 in any case in which the Board has jurisdiction.

7 SEC. 704. REMOVAL AND REVIEW OF JUDGES.

8 No immigration judge or member of the Board may

9 be removed or otherwise subject to disciplinary or adverse

10 action for their exercise of independent judgment and dis11 cretion as prescribed by this chapter.

12 SEC. 705. LEGAL ORIENTATION PROGRAM.

13 (a) CONTINUED OPERATION.—The Director of the

14 Executive Office for Immigration Review shall continue to

15 operate a legal orientation program to provide basic infor16 mation about immigration court procedures for immigra17 tion detainees and shall expand the legal orientation pro18 gram to provide such information on a nationwide basis.

19 (b) AUTHORIZATION OF APPROPRIATIONS.—There

20 are authorized to be appropriated such sums as may be

21 necessary to carry out such legal orientation program.

22 SEC. 706. REGULATIONS.

23 Not later than 180 days after the date of the enact24 ment of this Act, the Attorney General shall issue regula25 tions to implement this subtitle.
†

673

S 2611 ES

1 SEC. 707. GAO STUDY ON THE APPELLATE PROCESS FOR

2 IMMIGRATION APPEALS.

3 (a) IN GENERAL.—The Comptroller General of the

4 United States shall, not later than 180 days after enact5 ment of this Act, conduct a study on the appellate process

6 for immigration appeals.

7 (b) REQUIREMENTS.—In conducting the study under

8 subsection (a), the Comptroller General shall consider the

9 possibility of consolidating all appeals from the Board of

10 Immigration Appeals and habeas corpus petitions in immi11 gration cases into 1 United States Court of Appeals, by—

12 (1) consolidating all such appeals into an exist13 ing circuit court, such as the United States Court of

14 Appeals for the Federal Circuit;

15 (2) consolidating all such appeals into a central16 ized appellate court consisting of active circuit court

17 judges temporarily assigned from the various cir18 cuits, in a manner similar to the Foreign Intel19 ligence Surveillance Court or the Temporary Emer20 gency Court of Appeals; or

21 (3) implementing a mechanism by which a

22 panel of active circuit court judges shall have the au23 thority to reassign such appeals from circuits with

24 relatively high caseloads to circuits with relatively

25 low caseloads.
†

674

S 2611 ES

1 (c) FACTORS TO CONSIDER.—In conducting the

2 study under subsection (a), the Comptroller General, in

3 consultation with the Attorney General, the Secretary, and

4 the Judicial Conference of the United States, shall

5 consider—

6 (1) the resources needed for each alternative,

7 including judges, attorneys and other support staff,

8 case management techniques including technological

9 requirements, physical infrastructure, and other pro10 cedural and logistical issues as appropriate;

11 (2) the impact of each plan on various circuits,

12 including their caseload in general and caseload per

13 panel;

14 (3) the possibility of utilizing case management

15 techniques to reduce the impact of any consolidation

16 option, such as requiring certificates of reviewability,

17 similar to procedures for habeas and existing sum18 mary dismissal procedures in local rules of the

19 courts of appeals;

20 (4) the effect of reforms in this Act on the abil21 ity of the circuit courts to adjudicate such appeals;

22 (5) potential impact, if any, on litigants; and

23 (6) other reforms to improve adjudication of

24 immigration matters, including appellate review of

25 motions to reopen and reconsider, and attorney fee
†

675

S 2611 ES

1 awards with respect to review of final orders of re2 moval.

3 SEC. 708. SENIOR JUDGE PARTICIPATION IN THE SELEC4 TION OF MAGISTRATES.

5 Section 631(a) of title 28, United States Code, is

6 amended by striking ‘‘Northern Mariana Islands’’ the first

7 place it appears and inserting ‘‘Northern Mariana Islands,

8 including any judge in regular active service and any judge

9 who has retired from regular active service under section

10 371(b) of this title,’’.

11 Subtitle B—Citizenship Assistance

12 for Members of the Armed Services

13 SEC. 711. SHORT TITLE.

14 This subtitle may be cited as the ‘‘Kendell Frederick

15 Citizenship Assistance Act’’.

16 SEC. 712. WAIVER OF REQUIREMENT FOR FINGERPRINTS

17 FOR MEMBERS OF THE ARMED FORCES.

18 Notwithstanding any other provision of law or any

19 regulation, the Secretary shall use the fingerprints pro20 vided by an individual at the time the individual enlists

21 in the Armed Forces to satisfy any requirement for finger22 prints as part of an application for naturalization if the

23 individual—
†

676

S 2611 ES

1 (1) may be naturalized pursuant to section 328

2 or 329 of the Immigration and Nationality Act (8

3 U.S.C. 1439 or 1440);

4 (2) was fingerprinted in accordance with the re5 quirements of the Department of Defense at the

6 time the individual enlisted in the Armed Forces;

7 and

8 (3) submits an application for naturalization

9 not later than 12 months after the date the indi10 vidual enlisted in the Armed Forces.

11 SEC. 713. PROVISION OF INFORMATION ON NATURALIZA12 TION TO MEMBERS OF THE ARMED FORCES.

13 The Secretary shall—

14 (1) establish a dedicated toll-free telephone

15 service available only to members of the Armed

16 Forces and the families of such members to provide

17 information related to naturalization pursuant to

18 section 328 or 329 of the Immigration and Nation19 ality Act (8 U.S.C. 1439 or 1440), including the sta20 tus of an application for such naturalization;

21 (2) ensure that the telephone service required

22 by paragraph (1) is operated by employees of the

23 Department who—

24 (A) have received specialized training on

25 the naturalization process for members of the
†

677

S 2611 ES

1 Armed Forces and the families of such mem2 bers; and

3 (B) are physically located in the same unit

4 as the military processing unit that adjudicates

5 applications for naturalization pursuant to such

6 section 328 or 329; and

7 (3) implement a quality control program to

8 monitor, on a regular basis, the accuracy and quality

9 of information provided by the employees who oper10 ate the telephone service required by paragraph (1),

11 including the breadth of the knowledge related to the

12 naturalization process of such employees.

13 SEC. 714. PROVISION OF INFORMATION ON NATURALIZA14 TION TO THE PUBLIC.

15 Not later than 30 days after the date that a modifica16 tion to any law or regulation related to the naturalization

17 process becomes effective, the Secretary shall update the

18 appropriate application form for naturalization, the in19 structions and guidebook for obtaining naturalization, and

20 the Internet website maintained by the Secretary to reflect

21 such modification.

22 SEC. 715. REPORTS.

23 (a) ADJUDICATION PROCESS.—Not later than 120

24 days after the date of the enactment of this Act, the

25 Comptroller General of the United States shall submit to
†

678

S 2611 ES

1 the appropriate congressional committees a report on the

2 entire process for the adjudication of an application for

3 naturalization filed pursuant to section 328 or 329 of the

4 Immigration and Nationality Act (8 U.S.C. 1439 or

5 1440), including the process that begins at the time the

6 application is mailed to, or received by, the Secretary, re7 gardless of whether the Secretary determines that such

8 application is complete, through the final disposition of

9 such application. Such report shall include a description

10 of—

11 (1) the methods of the Secretary to prepare,

12 handle, and adjudicate such applications;

13 (2) the effectiveness of the chain of authority,

14 supervision, and training of employees of the Gov15 ernment or of other entities, including contract em16 ployees, who have any role in the such process or ad17 judication; and

18 (3) the ability of the Secretary to use tech19 nology to facilitate or accomplish any aspect of such

20 process or adjudication.

21 (b) IMPLEMENTATION.—

22 (1) STUDY.—The Comptroller General of the

23 United States shall conduct a study on the imple24 mentation of this subtitle by the Secretary, including

25 studying any technology that may be used to im-
†

679

S 2611 ES

1 prove the efficiency of the naturalization process for

2 members of the Armed Forces.

3 (2) REPORT.—Not later than 180 days after

4 the date that the Comptroller General submits the

5 report required by subsection (a), the Comptroller

6 General shall submit to the appropriate congres7 sional committees a report on the study required by

8 paragraph (1). The report shall include any rec9 ommendations of the Comptroller General for im10 proving the implementation of this subtitle by the

11 Secretary.

12 (c) APPROPRIATE CONGRESSIONAL COMMITTEES DE13 FINED.—In this section, the term ‘‘appropriate congres14 sional committees’’ means—

15 (1) the Committee on Armed Services and the

16 Committee on the Judiciary of the Senate; and

17 (2) the Committee on Armed Services and the

18 Committee on the Judiciary of the House of Rep19 resentatives.

20 Subtitle C—State Court Interpreter

21 Grant Program

22 SEC. 721. SHORT TITLE.

23 This subtitle may be cited as the ‘‘State Court Inter24 preter Grant Program Act’’.
†

680

S 2611 ES

1 SEC. 722. FINDINGS.

2 Congress finds that—

3 (1) the fair administration of justice depends on

4 the ability of all participants in a courtroom pro5 ceeding to understand that proceeding, regardless of

6 their English proficiency;

7 (2) 19 percent of the population of the United

8 States over 5 years of age speaks a language other

9 than English at home;

10 (3) only qualified court interpreters can ensure

11 that persons with limited English proficiency com12 prehend judicial proceedings in which they are a

13 party;

14 (4) the knowledge and skills required of a quali15 fied court interpreter differ substantially from those

16 required in other interpretation settings, such as so17 cial service, medical, diplomatic, and conference in18 terpreting;

19 (5) the Federal Government has demonstrated

20 its commitment to equal administration of justice re21 gardless of English proficiency;

22 (6) regulations implementing title VI of the

23 Civil Rights Act of 1964, as well as the guidance

24 issued by the Department of Justice pursuant to Ex25 ecutive Order 13166, issued August 11, 2000, clar26 ify that all recipients of Federal financial assistance,
†

681

S 2611 ES

1 including State courts, are required to take reason2 able steps to provide meaningful access to their pro3 ceedings for persons with limited English pro4 ficiency;

5 (7) 34 States have developed, or are developing,

6 court interpreting programs;

7 (8) robust, effective court interpreter

8 programs—

9 (A) actively recruit skilled individuals to be

10 court interpreters;

11 (B) train those individuals in the interpre12 tation of court proceedings;

13 (C) develop and use a thorough, systematic

14 certification process for court interpreters; and

15 (D) have sufficient funding to ensure that

16 a qualified interpreter will be available to the

17 court whenever necessary; and

18 (9) Federal funding is necessary to—

19 (A) encourage State courts that do not

20 have court interpreter programs to develop

21 them;

22 (B) assist State courts with nascent court

23 interpreter programs to implement them;

24 (C) assist State courts with limited court

25 interpreter programs to enhance them; and
†

682

S 2611 ES

1 (D) assist State courts with robust court

2 interpreter programs to make further improve3 ments and share successful programs with other

4 States.

5 SEC. 723. STATE COURT INTERPRETER PROGRAM.

6 (a) GRANTS AUTHORIZED.—

7 (1) IN GENERAL.—The Administrator of the

8 Office of Justice Programs of the Department of

9 Justice (referred to in this section as the ‘‘Adminis10 trator’’) shall make grants, in accordance with such

11 regulations as the Attorney General may prescribe,

12 to State courts to develop and implement programs

13 to assist individuals with limited English proficiency

14 to access and understand State court proceedings in

15 which they are a party.

16 (2) TECHNICAL ASSISTANCE.—The Adminis17 trator shall allocate, for each fiscal year, $500,000

18 of the amount appropriated pursuant to section 724

19 to be used to establish a court interpreter technical

20 assistance program to assist State courts receiving

21 grants under this subtitle.

22 (b) USE OF GRANTS.—Grants awarded under sub23 section (a) may be used by State courts to—

24 (1) assess regional language demands;
†

683

S 2611 ES

1 (2) develop a court interpreter program for the

2 State courts;

3 (3) develop, institute, and administer language

4 certification examinations;

5 (4) recruit, train, and certify qualified court in6 terpreters;

7 (5) pay for salaries, transportation, and tech8 nology necessary to implement the court interpreter

9 program developed under paragraph (2); and

10 (6) engage in other related activities, as pre11 scribed by the Attorney General.

12 (c) APPLICATION.—

13 (1) IN GENERAL.—The highest State court of

14 each State desiring a grant under this section shall

15 submit an application to the Administrator at such

16 time, in such manner, and accompanied by such in17 formation as the Administrator may reasonably re18 quire.

19 (2) STATE COURTS.—The highest State court

20 of each State submitting an application under para21 graph (1) shall include in the application—

22 (A) an identification of each State court in

23 that State which would receive funds from the

24 grant;
†

684

S 2611 ES

1 (B) the amount of funds each State court

2 identified under subparagraph (A) would re3 ceive from the grant; and

4 (C) the procedures the highest State court

5 would use to directly distribute grant funds to

6 State courts identified under subparagraph (A).

7 (d) STATE COURT ALLOTMENTS.—

8 (1) BASE ALLOTMENT.—From amounts appro9 priated for each fiscal year pursuant to section 724,

10 the Administrator shall allocate $100,000 to each of

11 the highest State court of each State, which has an

12 application approved under subsection (c).

13 (2) DISCRETIONARY ALLOTMENT.—From

14 amounts appropriated for each fiscal year pursuant

15 to section 724, the Administrator shall allocate a

16 total of $5,000,000 to the highest State court of

17 States that have extraordinary needs that must be

18 addressed in order to develop, implement, or expand

19 a State court interpreter program.

20 (3) ADDITIONAL ALLOTMENT.—In addition to

21 the allocations made under paragraphs (1) and (2),

22 the Administrator shall allocate to each of the high23 est State court of each State, which has an applica24 tion approved under subsection (c), an amount equal

25 to the product reached by multiplying—
†

685

S 2611 ES

1 (A) the unallocated balance of the amount

2 appropriated for each fiscal year pursuant to

3 section 724; and

4 (B) the ratio between the number of people

5 over 5 years of age who speak a language other

6 than English at home in the State and the

7 number of people over 5 years of age who speak

8 a language other than English at home in all

9 the States that receive an allocation under

10 paragraph (1), as those numbers are deter11 mined by the Bureau of the Census.

12 SEC. 724. AUTHORIZATION OF APPROPRIATIONS.

13 There are authorized to be appropriated $15,000,000

14 for each of the fiscal years 2007 through 2010 to carry

15 out this subtitle.

16 Subtitle D—Border Infrastructure

17 and Technology Modernization

18 SEC. 731. SHORT TITLE.

19 This subtitle may be cited as the ‘‘Border Infrastruc20 ture and Technology Modernization Act’’.

21 SEC. 732. DEFINITIONS.

22 In this subtitle:

23 (1) COMMISSIONER.—The term ‘‘Commis24 sioner’’ means the Commissioner of the Bureau of
†

686

S 2611 ES

1 Customs and Border Protection of the Department

2 of Homeland Security.

3 (2) MAQUILADORA.—The term ‘‘maquiladora’’

4 means an entity located in Mexico that assembles

5 and produces goods from imported parts for export

6 to the United States.

7 (3) NORTHERN BORDER.—The term ‘‘northern

8 border’’ means the international border between the

9 United States and Canada.

10 (4) SOUTHERN BORDER.—The term ‘‘southern

11 border’’ means the international border between the

12 United States and Mexico.

13 SEC. 733. PORT OF ENTRY INFRASTRUCTURE ASSESSMENT

14 STUDY.

15 (a) REQUIREMENT TO UPDATE.—Not later than

16 January 31 of each year, the Administrator of General

17 Services shall update the Port of Entry Infrastructure As18 sessment Study prepared by the Bureau of Customs and

19 Border Protection in accordance with the matter relating

20 to the ports of entry infrastructure assessment that is set

21 out in the joint explanatory statement in the conference

22 report accompanying H.R. 2490 of the 106th Congress,

23 1st session (House of Representatives Rep. No. 106–319,

24 on page 67) and submit such updated study to Congress.
†

687

S 2611 ES

1 (b) CONSULTATION.—In preparing the updated stud2 ies required in subsection (a), the Administrator of Gen3 eral Services shall consult with the Director of the Office

4 of Management and Budget, the Secretary, and the Com5 missioner.

6 (c) CONTENT.—Each updated study required in sub7 section (a) shall—

8 (1) identify port of entry infrastructure and

9 technology improvement projects that would enhance

10 border security and facilitate the flow of legitimate

11 commerce if implemented;

12 (2) include the projects identified in the Na13 tional Land Border Security Plan required by sec14 tion 734; and

15 (3) prioritize the projects described in para16 graphs (1) and (2) based on the ability of a project

17 to—

18 (A) fulfill immediate security requirements;

19 and

20 (B) facilitate trade across the borders of

21 the United States.

22 (d) PROJECT IMPLEMENTATION.—The Commissioner

23 shall implement the infrastructure and technology im24 provement projects described in subsection (c) in the order
†

688

S 2611 ES

1 of priority assigned to each project under subsection

2 (c)(3).

3 (e) DIVERGENCE FROM PRIORITIES.—The Commis4 sioner may diverge from the priority order if the Commis5 sioner determines that significantly changed cir6 cumstances, such as immediate security needs or changes

7 in infrastructure in Mexico or Canada, compellingly alter

8 the need for a project in the United States.

9 SEC. 734. NATIONAL LAND BORDER SECURITY PLAN.

10 (a) IN GENERAL.—Not later than 1 year after the

11 date of the enactment of this Act, an annually thereafter,

12 the Secretary, after consultation with representatives of

13 Federal, State, and local law enforcement agencies and

14 private entities that are involved in international trade

15 across the northern border or the southern border, shall

16 submit a National Land Border Security Plan to Con17 gress.

18 (b) VULNERABILITY ASSESSMENT.—

19 (1) IN GENERAL.—The plan required in sub20 section (a) shall include a vulnerability assessment

21 of each port of entry located on the northern border

22 or the southern border.

23 (2) PORT SECURITY COORDINATORS.—The Sec24 retary may establish 1 or more port security coordi-
†

689

S 2611 ES

1 nators at each port of entry located on the northern

2 border or the southern border—

3 (A) to assist in conducting a vulnerability

4 assessment at such port; and

5 (B) to provide other assistance with the

6 preparation of the plan required in subsection

7 (a).

8 SEC. 735. EXPANSION OF COMMERCE SECURITY PRO9 GRAMS.

10 (a) CUSTOMS-TRADE PARTNERSHIP AGAINST TER11 RORISM.—

12 (1) IN GENERAL.—Not later than 180 days

13 after the date of enactment of this Act, the Commis14 sioner, in consultation with the Secretary, shall de15 velop a plan to expand the size and scope, including

16 personnel, of the Customs–Trade Partnership

17 Against Terrorism programs along the northern bor18 der and southern border, including—

19 (A) the Business Anti-Smuggling Coali20 tion;

21 (B) the Carrier Initiative Program;

22 (C) the Americas Counter Smuggling Ini23 tiative;

24 (D) the Container Security Initiative;
†

690

S 2611 ES

1 (E) the Free and Secure Trade Initiative;

2 and

3 (F) other Industry Partnership Programs

4 administered by the Commissioner.

5 (2) SOUTHERN BORDER DEMONSTRATION PRO6 GRAM.—Not later than 180 days after the date of

7 enactment of this Act, the Commissioner shall imple8 ment, on a demonstration basis, at least 1 Customs–

9 Trade Partnership Against Terrorism program,

10 which has been successfully implemented along the

11 northern border, along the southern border.

12 (b) MAQUILADORA DEMONSTRATION PROGRAM.—

13 Not later than 180 days after the date of enactment of

14 this Act, the Commissioner shall establish a demonstration

15 program to develop a cooperative trade security system to

16 improve supply chain security.

17 SEC. 736. PORT OF ENTRY TECHNOLOGY DEMONSTRATION

18 PROGRAM.

19 (a) ESTABLISHMENT.—The Secretary shall carry out

20 a technology demonstration program to—

21 (1) test and evaluate new port of entry tech22 nologies;

23 (2) refine port of entry technologies and oper24 ational concepts; and

25 (3) train personnel under realistic conditions.
†

691

S 2611 ES

1 (b) TECHNOLOGY AND FACILITIES.—

2 (1) TECHNOLOGY TESTING.—Under the tech3 nology demonstration program, the Secretary shall

4 test technologies that enhance port of entry oper5 ations, including operations related to—

6 (A) inspections;

7 (B) communications;

8 (C) port tracking;

9 (D) identification of persons and cargo;

10 (E) sensory devices;

11 (F) personal detection;

12 (G) decision support; and

13 (H) the detection and identification of

14 weapons of mass destruction.

15 (2) DEVELOPMENT OF FACILITIES.—At a dem16 onstration site selected pursuant to subsection

17 (c)(2), the Secretary shall develop facilities to pro18 vide appropriate training to law enforcement per19 sonnel who have responsibility for border security,

20 including—

21 (A) cross-training among agencies;

22 (B) advanced law enforcement training;

23 and

24 (C) equipment orientation.

25 (c) DEMONSTRATION SITES.—
†

692

S 2611 ES

1 (1) NUMBER.—The Secretary shall carry out

2 the demonstration program at not less than 3 sites

3 and not more than 5 sites.

4 (2) SELECTION CRITERIA.—To ensure that at

5 least 1 of the facilities selected as a port of entry

6 demonstration site for the demonstration program

7 has the most up-to-date design, contains sufficient

8 space to conduct the demonstration program, has a

9 traffic volume low enough to easily incorporate new

10 technologies without interrupting normal processing

11 activity, and can efficiently carry out demonstration

12 and port of entry operations, at least 1 port of entry

13 selected as a demonstration site shall—

14 (A) have been established not more than

15 15 years before the date of the enactment of

16 this Act;

17 (B) consist of not less than 65 acres, with

18 the possibility of expansion to not less than 25

19 adjacent acres; and

20 (C) have serviced an average of not more

21 than 50,000 vehicles per month during the 1-

22 year period ending on the date of the enactment

23 of this Act.

24 (d) RELATIONSHIP WITH OTHER AGENCIES.—The

25 Secretary shall permit personnel from an appropriate Fed-
†

693

S 2611 ES

1 eral or State agency to utilize a demonstration site de2 scribed in subsection (c) to test technologies that enhance

3 port of entry operations, including technologies described

4 in subparagraphs (A) through (H) of subsection (b)(1).

5 (e) REPORT.—

6 (1) REQUIREMENT.—Not later than 1 year

7 after the date of the enactment of this Act, and an8 nually thereafter, the Secretary shall submit to Con9 gress a report on the activities carried out at each

10 demonstration site under the technology demonstra11 tion program established under this section.

12 (2) CONTENT.—The report submitted under

13 paragraph (1) shall include an assessment by the

14 Secretary of the feasibility of incorporating any dem15 onstrated technology for use throughout the Bureau

16 of Customs and Border Protection.

17 SEC. 737. AUTHORIZATION OF APPROPRIATIONS.

18 (a) IN GENERAL.—In addition to any funds other19 wise available, there are authorized to be appropriated—

20 (1) such sums as may be necessary for the fis21 cal years 2007 through 2011 to carry out the provi22 sions of section 733(a);

23 (2) to carry out section 733(d)—

24 (A) $100,000,000 for each of the fiscal

25 years 2007 through 2011; and
†

694

S 2611 ES

1 (B) such sums as may be necessary in any

2 succeeding fiscal year;

3 (3) to carry out section 735(a)—

4 (A) $30,000,000 for fiscal year 2007, of

5 which $5,000,000 shall be made available to

6 fund the demonstration project established in

7 section 736(a)(2); and

8 (B) such sums as may be necessary for the

9 fiscal years 2008 through 2011;

10 (4) to carry out section 735(b)—

11 (A) $5,000,000 for fiscal year 2007; and

12 (B) such sums as may be necessary for the

13 fiscal years 2008 through 2011; and

14 (5) to carry out section 736, provided that not

15 more than $10,000,000 may be expended for tech16 nology demonstration program activities at any 1

17 port of entry demonstration site in any fiscal year—

18 (A) $50,000,000 for fiscal year 2007; and

19 (B) such sums as may be necessary for

20 each of the fiscal years 2008 through 2011.

21 (b) INTERNATIONAL AGREEMENTS.—Amounts au22 thorized to be appropriated under this subtitle may be

23 used for the implementation of projects described in the

24 Declaration on Embracing Technology and Cooperation to

25 Promote the Secure and Efficient Flow of People and
†

695

S 2611 ES

1 Commerce across our Shared Border between the United

2 States and Mexico, agreed to March 22, 2002, Monterrey,

3 Mexico (commonly known as the Border Partnership Ac4 tion Plan) or the Smart Border Declaration between the

5 United States and Canada, agreed to December 12, 2001,

6 Ottawa, Canada that are consistent with the provisions of

7 this subtitle.

8 Subtitle E—Family Humanitarian

9 Relief

10 SEC. 741. SHORT TITLE.

11 This subtitle may be cited as the ‘‘September 11

12 Family Humanitarian Relief and Patriotism Act’’.

13 SEC. 742. ADJUSTMENT OF STATUS FOR CERTAIN NON14 IMMIGRANT VICTIMS OF TERRORISM.

15 (a) ADJUSTMENT OF STATUS.—

16 (1) IN GENERAL.—The status of any alien de17 scribed in subsection (b) shall be adjusted by the

18 Secretary to that of an alien lawfully admitted for

19 permanent residence, if the alien—

20 (A) applies for such adjustment not later

21 than 2 years after the date on which the Sec22 retary promulgates final regulations to imple23 ment this section; and

24 (B) is otherwise admissible to the United

25 States for permanent residence, except in deter-
†

696

S 2611 ES

1 mining such admissibility the grounds for inad2 missibility specified in paragraphs (4), (5),

3 (6)(A), (7)(A), and (9)(B) of section 212(a) of

4 the Immigration and Nationality Act (8 U.S.C.

5 1182(a)) shall not apply.

6 (2) RULES IN APPLYING CERTAIN PROVI7 SIONS.—

8 (A) IN GENERAL.—In the case of an alien

9 described in subsection (b) who is applying for

10 adjustment of status under this section—

11 (i) the provisions of section 241(a)(5)

12 of the Immigration and Nationality Act (8

13 U.S.C. 1231(a)(5)) shall not apply; and

14 (ii) the Secretary may grant the alien

15 a waiver on the grounds of inadmissibility

16 under subparagraphs (A) and (C) of sec17 tion 212(a)(9) of such Act (8 U.S.C.

18 1182(a)(9)).

19 (B) STANDARDS.—In granting waivers

20 under subparagraph (A)(ii), the Secretary shall

21 use standards used in granting consent under

22 subparagraphs (A)(iii) and (C)(ii) of such sec23 tion 212(a)(9).

24 (3) RELATIONSHIP OF APPLICATION TO CER25 TAIN ORDERS.—
†

697

S 2611 ES

1 (A) APPLICATION PERMITTED.—An alien

2 present in the United States who has been or3 dered excluded, deported, removed, or ordered

4 to depart voluntarily from the United States

5 under any provision of the Immigration and

6 Nationality Act (8 U.S.C. 1101 et seq.) may,

7 notwithstanding such order, apply for adjust8 ment of status under paragraph (1).

9 (B) MOTION NOT REQUIRED.—An alien

10 described in subparagraph (A) may not be re11 quired, as a condition of submitting or granting

12 such application, to file a separate motion to re13 open, reconsider, or vacate such order.

14 (C) EFFECT OF DECISION.—If the Sec15 retary grants a request under subparagraph

16 (A), the Secretary shall cancel the order. If the

17 Secretary renders a final administrative deci18 sion to deny the request, the order shall be ef19 fective and enforceable to the same extent as if

20 the application had not been made.

21 (b) ALIENS ELIGIBLE FOR ADJUSTMENT OF STA22 TUS.—The benefits provided by subsection (a) shall apply

23 to any alien who—

24 (1) was lawfully present in the United States as

25 a nonimmigrant alien described in section
†

698

S 2611 ES

1 101(a)(15) of the Immigration and Nationality Act

2 (8 U.S.C. 1101(a)(15)) on September 10, 2001;

3 (2) was, on such date, the spouse, child, de4 pendent son, or dependent daughter of an alien

5 who—

6 (A) was lawfully present in the United

7 States as a nonimmigrant alien described in

8 section 101(a)(15) of the Immigration and Na9 tionality Act (8 U.S.C. 1101(a)(15)) on such

10 date; and

11 (B) died as a direct result of a specified

12 terrorist activity; and

13 (3) was deemed to be a beneficiary of, and by,

14 the September 11th Victim Compensation Fund of

15 2001 (49 U.S.C. 40101 note).

16 (c) STAY OF REMOVAL; WORK AUTHORIZATION.—

17 (1) IN GENERAL.—The Secretary shall estab18 lish, by regulation, a process by which an alien sub19 ject to a final order of removal may seek a stay of

20 such order based on the filing of an application

21 under subsection (a).

22 (2) DURING CERTAIN PROCEEDINGS.—Notwith23 standing any provision of the Immigration and Na24 tionality Act (8 U.S.C. 1101 et seq.), the Secretary

25 shall not order any alien to be removed from the
†

699

S 2611 ES

1 United States, if the alien is in removal proceedings

2 under any provision of such Act and has applied for

3 adjustment of status under subsection (a), except

4 where the Secretary has rendered a final administra5 tive determination to deny the application.

6 (3) WORK AUTHORIZATION.—The Secretary

7 shall authorize an alien who has applied for adjust8 ment of status under subsection (a) to engage in

9 employment in the United States during the pend10 ency of such application.

11 (d) AVAILABILITY OF ADMINISTRATIVE REVIEW.—

12 The Secretary shall provide to applicants for adjustment

13 of status under subsection (a) the same right to, and pro14 cedures for, administrative review as are provided to—

15 (1) applicants for adjustment of status under

16 section 245 of the Immigration and Nationality Act

17 (8 U.S.C. 1255); or

18 (2) aliens subject to removal proceedings under

19 section 240 of such Act (8 U.S.C. 1229a).

20 SEC. 743. CANCELLATION OF REMOVAL FOR CERTAIN IMMI21 GRANT VICTIMS OF TERRORISM.

22 (a) IN GENERAL.—Subject to the provisions of the

23 Immigration and Nationality Act (8 U.S.C. 1101 et seq.),

24 other than subsections (b)(1), (d)(1), and (e) of section

25 240A of such Act (8 U.S.C. 1229b), the Secretary shall,
†

700

S 2611 ES

1 under such section 240A, cancel the removal of, and ad2 just to the status of an alien lawfully admitted for perma3 nent residence, an alien described in subsection (b), if the

4 alien applies for such relief.

5 (b) ALIENS ELIGIBLE FOR CANCELLATION OF RE6 MOVAL.—The benefits provided by subsection (a) shall

7 apply to any alien who—

8 (1) was, on September 10, 2001, the spouse,

9 child, dependent son, or dependent daughter of an

10 alien who died as a direct result of a specified ter11 rorist activity; and

12 (2) was deemed to be a beneficiary of, and by,

13 the September 11th Victim Compensation Fund of

14 2001 (49 U.S.C. 40101 note).

15 (c) STAY OF REMOVAL; WORK AUTHORIZATION.—

16 (1) IN GENERAL.—The Secretary shall provide

17 by regulation for an alien subject to a final order of

18 removal to seek a stay of such order based on the

19 filing of an application under subsection (a).

20 (2) WORK AUTHORIZATION.—The Secretary

21 shall authorize an alien who has applied for cancella22 tion of removal under subsection (a) to engage in

23 employment in the United States during the pend24 ency of such application.
†

701

S 2611 ES

1 (d) MOTIONS TO REOPEN REMOVAL PRO2 CEEDINGS.—

3 (1) IN GENERAL.—Notwithstanding any limita4 tion imposed by law on motions to reopen removal

5 proceedings (except limitations premised on an

6 alien’s conviction of an aggravated felony (as defined

7 in section 101(a)(43) of the Immigration and Na8 tionality Act (8 U.S.C. 1101(a)(43))), any alien who

9 has become eligible for cancellation of removal as a

10 result of the enactment of this section may file 1

11 motion to reopen removal proceedings to apply for

12 such relief.

13 (2) FILING PERIOD.—The Secretary shall des14 ignate a specific time period in which all such mo15 tions to reopen are required to be filed. The period

16 shall begin not later than 60 days after the date of

17 enactment of this Act and shall extend for a period

18 not to exceed 240 days.

19 SEC. 744. EXCEPTIONS.

20 Notwithstanding any other provision of this subtitle,

21 an alien may not be provided relief under this subtitle if

22 the alien is—

23 (1) inadmissible under paragraph (2) or (3) of

24 section 212(a) of the Immigration and Nationality

25 Act (8 U.S.C. 1182(a)), or deportable under para-
†

702

S 2611 ES

1 graph (2) or (4) of section 237(a) of such Act (8

2 U.S.C. 1227(a)), including any individual culpable

3 for a specified terrorist activity; or

4 (2) a family member of an alien described in

5 paragraph (1).

6 SEC. 745. EVIDENCE OF DEATH.

7 For purposes of this subtitle, the Secretary shall use

8 the standards established under section 426 of the Uniting

9 and Strengthening America by Providing Appropriate

10 Tools Required to Intercept and Obstruct Terrorism (USA

11 PATRIOT ACT) Act of 2001 (115 Stat. 362) in deter12 mining whether death occurred as a direct result of a spec13 ified terrorist activity.

14 SEC. 746. DEFINITIONS.

15 (a) APPLICATION OF IMMIGRATION AND NATION16 ALITY ACT PROVISIONS.—Except as otherwise specifically

17 provided in this subtitle, the definitions used in the Immi18 gration and Nationality Act (8 U.S.C. 1101 et seq.), other

19 than the definitions applicable exclusively to title III of

20 such Act, shall apply in the administration of this subtitle.

21 (b) SPECIFIED TERRORIST ACTIVITY.—For purposes

22 of this subtitle, the term ‘‘specified terrorist activity’’

23 means any terrorist activity conducted against the Govern24 ment or the people of the United States on September 11,

25 2001.
†

703

S 2611 ES

1 Subtitle F—Other Matters

2 SEC. 751. NONCITIZEN MEMBERSHIP IN THE ARMED

3 FORCES.

4 Section 329 of the Immigration and Nationality Act

5 (8 U.S.C. 1440) is amended—

6 (1) in subsection (b), by striking ‘‘subsection

7 (a)’’ and inserting ‘‘subsection (a) and (d)’’; and

8 (2) by adding at the end the following:

9 ‘‘(d) Notwithstanding any other provision of law, ex10 cept for provisions relating to revocation of citizenship

11 under subsection (c), individuals who are not United

12 States citizens shall not be denied the opportunity to apply

13 for membership in the United States Armed Forces. Such

14 individuals who become active duty members of the United

15 States Armed Forces shall, consistent with subsections (a)

16 through (e) and with the approval of their chain of com17 mand, be granted United States citizenship after per18 forming at least 2 years of honorable and satisfactory

19 service on active duty. Not later than 90 days after such

20 requirements are met with respect to an individual, such

21 individual shall be granted United States citizenship.

22 ‘‘(e) An alien described in subsection (d) shall be nat23 uralized without regard to the requirements of title III of

24 the Immigration and Nationality Act (8 U.S.C. 1401 et

25 seq.) and any other requirements, processes, or procedures
†

704

S 2611 ES

1 of the Immigration and Naturalization Service, if the

2 alien—

3 ‘‘(1) filed an application for naturalization in

4 accordance with such procedures to carry out this

5 section as may be established by regulation by the

6 Secretary of Homeland Security or the Secretary of

7 Defense;

8 ‘‘(2) demonstrates to his or her military chain

9 of command, proficiency in the English language,

10 good moral character, and knowledge of the Federal

11 Government and United States history, consistent

12 with the requirements contained in the Immigration

13 and Nationality Act; and

14 ‘‘(3) takes the oath required under section 337

15 of such Act (8 U.S.C. 1448 et seq.) and participates

16 in an oath administration ceremony in accordance

17 with such Act.’’.

18 SEC. 752. NONIMMIGRANT ALIEN STATUS FOR CERTAIN

19 ATHLETES.

20 (a) IN GENERAL.—Section 214(c)(4)(A) (8 U.S.C.

21 1184(c)(4)(A)) is amended by striking clauses (i) and (ii)

22 and inserting the following:

23 ‘‘(i)(I) performs as an athlete, individually or as

24 part of a group or team, at an internationally recog25 nized level of performance,
†

705

S 2611 ES

1 ‘‘(II) is a professional athlete, as defined in sec2 tion 204(i)(2),

3 ‘‘(III) performs as an athlete, or as a coach, as

4 part of a team or franchise that is located in the

5 United States and a member of a foreign league or

6 association of 15 or more amateur sports teams, if—

7 ‘‘(aa) the foreign league or association is

8 the highest level of amateur performance of

9 that sport in the relevant foreign country,

10 ‘‘(bb) participation in such league or asso11 ciation renders players ineligible, whether on a

12 temporary or permanent basis, to earn a schol13 arship in, or participate in, that sport at a col14 lege or university in the United States under

15 the rules of the National Collegiate Athletic As16 sociation (NCAA), and

17 ‘‘(cc) a significant number of the individ18 uals who play in such league or association are

19 drafted by a major sports league or a minor

20 league affiliate of such a sports league, or

21 ‘‘(IV) is a professional athlete or amateur ath22 lete who performs individually or as part of a group

23 in a theatrical ice skating production, and

24 ‘‘(ii) seeks to enter the United States tempo25 rarily and solely for the purpose of performing—
†

706

S 2611 ES

1 ‘‘(I) as such an athlete with respect to a

2 specific athletic competition, or

3 ‘‘(II) in the case of an individual described

4 in clause (i)(IV), in a specific theatrical ice

5 skating production or tour.’’.

6 (b) PETITIONS FOR MULTIPLE ALIENS.—Section

7 214(c)(4) (8 U.S.C. 1184(c)(4)) is amended by adding at

8 the end the following new paragraph:

9 ‘‘(F) The Secretary of Homeland Security shall per10 mit a petition under this subsection to seek classification

11 of more than one alien as a nonimmigrant under section

12 101(a)(15)(P)(i)(a). The fee charged for such a petition

13 may not be more than the fee charged for a petition seek14 ing classification of one such alien.’’.

15 (c) RELATIONSHIP TO OTHER PROVISIONS OF THE

16 IMMIGRATION AND NATIONALITY ACT.—Section

17 214(c)(4) (8 U.S.C. 1184(c)(4)), as amended by sub18 section (c), is further amended by adding at the end the

19 following new paragraph:

20 ‘‘(G) Notwithstanding any other provision of this

21 title, the Secretary of Homeland Security shall permit an

22 athlete, or the employer of an athlete, to seek admission

23 to the United States for such athlete under a provision

24 of this Act other than section 101(a)(15)(P)(i).’’.
†

707

S 2611 ES

1 SEC. 753. EXTENSION OF RETURNING WORKER EXEMPTION.

2 Section 402(b)(1) of the Save Our Small and Sea3 sonal Businesses Act of 2005 (title IV of division B of

4 Public Law 109–13; 8 U.S.C. 1184 note) is amended by

5 striking ‘‘2006’’ and inserting ‘‘2009’’.

6 SEC. 754. SURVEILLANCE TECHNOLOGIES PROGRAMS.

7 (a) AERIAL SURVEILLANCE PROGRAM.—

8 (1) IN GENERAL.—In conjunction with the bor9 der surveillance plan developed under section 5201

10 of the Intelligence Reform and Terrorism Prevention

11 Act of 2004 (Public Law 108–458; 8 U.S.C. 1701

12 note), the Secretary, not later than 90 days after the

13 date of enactment of this Act, shall develop and im14 plement a program to fully integrate and utilize aer15 ial surveillance technologies, including unmanned

16 aerial vehicles, to enhance the security of the inter17 national border between the United States and Can18 ada and the international border between the United

19 States and Mexico. The goal of the program shall be

20 to ensure continuous monitoring of each mile of each

21 such border.

22 (2) ASSESSMENT AND CONSULTATION REQUIRE23 MENTS.—In developing the program under this sub24 section, the Secretary shall—

25 (A) consider current and proposed aerial

26 surveillance technologies;
†

708

S 2611 ES

1 (B) assess the feasibility and advisability

2 of utilizing such technologies to address border

3 threats, including an assessment of the tech4 nologies considered best suited to address re5 spective threats;

6 (C) consult with the Secretary of Defense

7 regarding any technologies or equipment, which

8 the Secretary may deploy along an international

9 border of the United States; and

10 (D) consult with the Administrator of the

11 Federal Aviation Administration regarding safe12 ty, airspace coordination and regulation, and

13 any other issues necessary for implementation

14 of the program.

15 (3) ADDITIONAL REQUIREMENTS.—

16 (A) IN GENERAL.—The program developed

17 under this subsection shall include the use of a

18 variety of aerial surveillance technologies in a

19 variety of topographies and areas, including

20 populated and unpopulated areas located on or

21 near an international border of the United

22 States, in order to evaluate, for a range of

23 circumstances—
†

709

S 2611 ES

1 (i) the significance of previous experi2 ences with such technologies in border se3 curity or critical infrastructure protection;

4 (ii) the cost and effectiveness of var5 ious technologies for border security, in6 cluding varying levels of technical com7 plexity; and

8 (iii) liability, safety, and privacy con9 cerns relating to the utilization of such

10 technologies for border security.

11 (4) CONTINUED USE OF AERIAL SURVEILLANCE

12 TECHNOLOGIES.—The Secretary may continue the

13 operation of aerial surveillance technologies while as14 sessing the effectiveness of the utilization of such

15 technologies.

16 (5) REPORT TO CONGRESS.—Not later than

17 180 days after implementing the program under this

18 subsection, the Secretary shall submit a report to

19 Congress regarding the program developed under

20 this subsection. The Secretary shall include in the

21 report a description of the program together with

22 such recommendations as the Secretary finds appro23 priate for enhancing the program.
†

710

S 2611 ES

1 (6) AUTHORIZATION OF APPROPRIATIONS.—

2 There are authorized to be appropriated such sums

3 as may be necessary to carry out this subsection.

4 (b) INTEGRATED AND AUTOMATED SURVEILLANCE

5 PROGRAM.—

6 (1) REQUIREMENT FOR PROGRAM.—Subject to

7 the availability of appropriations, the Secretary shall

8 establish a program to procure additional unmanned

9 aerial vehicles, cameras, poles, sensors, satellites,

10 radar coverage, and other technologies necessary to

11 achieve operational control of the international bor12 ders of the United States and to establish a security

13 perimeter known as a ‘‘virtual fence’’ along such

14 international borders to provide a barrier to illegal

15 immigration. Such program shall be known as the

16 Integrated and Automated Surveillance Program.

17 (2) PROGRAM COMPONENTS.—The Secretary

18 shall ensure, to the maximum extent feasible, the In19 tegrated and Automated Surveillance Program is

20 carried out in a manner that—

21 (A) the technologies utilized in the Pro22 gram are integrated and function cohesively in

23 an automated fashion, including the integration

24 of motion sensor alerts and cameras, whereby a

25 sensor alert automatically activates a cor-
†

711

S 2611 ES

1 responding camera to pan and tilt in the direc2 tion of the triggered sensor;

3 (B) cameras utilized in the Program do

4 not have to be manually operated;

5 (C) such camera views and positions are

6 not fixed;

7 (D) surveillance video taken by such cam8 eras can be viewed at multiple designated com9 munications centers;

10 (E) a standard process is used to collect,

11 catalog, and report intrusion and response data

12 collected under the Program;

13 (F) future remote surveillance technology

14 investments and upgrades for the Program can

15 be integrated with existing systems;

16 (G) performance measures are developed

17 and applied that can evaluate whether the Pro18 gram is providing desired results and increasing

19 response effectiveness in monitoring and detect20 ing illegal intrusions along the international

21 borders of the United States;

22 (H) plans are developed under the Pro23 gram to streamline site selection, site valida24 tion, and environmental assessment processes to
†

712

S 2611 ES

1 minimize delays of installing surveillance tech2 nology infrastructure;

3 (I) standards are developed under the Pro4 gram to expand the shared use of existing pri5 vate and governmental structures to install re6 mote surveillance technology infrastructure

7 where possible; and

8 (J) standards are developed under the Pro9 gram to identify and deploy the use of non10 permanent or mobile surveillance platforms that

11 will increase the Secretary’s mobility and ability

12 to identify illegal border intrusions.

13 (3) REPORT TO CONGRESS.—Not later than 1

14 year after the initial implementation of the Inte15 grated and Automated Surveillance Program, the

16 Secretary shall submit to Congress a report regard17 ing the Program. The Secretary shall include in the

18 report a description of the Program together with

19 any recommendation that the Secretary finds appro20 priate for enhancing the program.

21 (4) EVALUATION OF CONTRACTORS.—

22 (A) REQUIREMENT FOR STANDARDS.—The

23 Secretary shall develop appropriate standards

24 to evaluate the performance of any contractor
†

713

S 2611 ES

1 providing goods or services to carry out the In2 tegrated and Automated Surveillance Program.

3 (B) REVIEW BY THE INSPECTOR GEN4 ERAL.—The Inspector General of the Depart5 ment shall timely review each new contract re6 lated to the Program that has a value of more

7 than $5,000,000, to determine whether such

8 contract fully complies with applicable cost re9 quirements, performance objectives, program

10 milestones, and schedules. The Inspector Gen11 eral shall report the findings of such review to

12 the Secretary in a timely manner. Not later

13 than 30 days after the date the Secretary re14 ceives a report of findings from the Inspector

15 General, the Secretary shall submit to the Com16 mittee on Homeland Security and Govern17 mental Affairs of the Senate and the Committee

18 on Homeland Security of the House of Rep19 resentatives a report of such findings and a de20 scription of any the steps that the Secretary

21 has taken or plans to take in response to such

22 findings.

23 (5) AUTHORIZATION OF APPROPRIATIONS.—

24 There are authorized to be appropriated such sums

25 as may be necessary to carry out this subsection.
†

714

S 2611 ES

1 SEC. 755. COMPREHENSIVE IMMIGRATION EFFICIENCY RE2 VIEW.

3 (a) REVIEW.—The Secretary, in consultation with the

4 Secretary of State, shall conduct a comprehensive review

5 of the immigration procedures in existence as of the date

6 of the enactment of this Act.

7 (b) REPORT.—Not later than 90 days after the date

8 of the enactment of this Act, the Secretary shall submit

9 to Congress a report, in classified form, if necessary,

10 that—

11 (1) identifies inefficient immigration proce12 dures; and

13 (2) outlines a plan to improve the efficiency and

14 responsiveness of the immigration process.

15 SEC. 756. NORTHERN BORDER PROSECUTION INITIATIVE.

16 (a) INITIATIVE REQUIRED.—

17 (1) IN GENERAL.—From amounts made avail18 able to carry out this section, the Attorney General,

19 acting through the Director of the Bureau of Justice

20 Assistance of the Office of Justice Programs, shall

21 establish and carry out a program, to be known as

22 the Northern Border Prosecution Initiative, to pro23 vide funds to reimburse eligible northern border en24 tities for costs incurred by those entities for han25 dling case dispositions of criminal cases that are fed26 erally initiated but federally declined-referred.
†

715

S 2611 ES

1 (2) RELATION WITH SOUTHWESTERN BORDER

2 PROSECUTION INITIATIVE.—The program estab3 lished in paragraph (1) shall—

4 (A) be modeled after the Southwestern

5 Border Prosecution Initiative; and

6 (B) serve as a partner program to that ini7 tiative to reimburse local jurisdictions for proc8 essing Federal cases.

9 (b) PROVISION AND ALLOCATION OF FUNDS.—

10 Funds provided under the program established in sub11 section (a) shall be—

12 (1) provided in the form of direct reimburse13 ments; and

14 (2) allocated in a manner consistent with the

15 manner under which funds are allocated under the

16 Southwestern Border Prosecution Initiative.

17 (c) USE OF FUNDS.—Funds provided to an eligible

18 northern border entity under this section may be used by

19 the entity for any lawful purpose, including:

20 (1) Prosecution and related costs;

21 (2) Court costs;

22 (3) Costs of courtroom technology;

23 (4) Costs of constructing holding spaces;

24 (5) Costs of administrative staff;
†

716

S 2611 ES

1 (6) Costs of defense counsel for indigent de2 fendants; and

3 (7) Detention costs, including pre-trial and

4 post-trial detention.

5 (d) DEFINITIONS.—In this section:

6 (1) CASE DISPOSITION.—The term ‘‘case

7 disposition’’—

8 (A) for purposes of the Northern Border

9 Prosecution Initiative, refers to the time be10 tween the arrest of a suspect and the resolution

11 of the criminal charges through a county or

12 State judicial or prosecutorial process; and

13 (B) does not include incarceration time for

14 sentenced offenders, or time spent by prosecu15 tors on judicial appeals.

16 (2) ELIGIBLE NORTHERN BORDER ENTITY.—

17 The term ‘‘eligible northern border entity’’ means—

18 (A) the States of Alaska, Idaho, Maine,

19 Michigan, Minnesota, Montana, New Hamp20 shire, New York, North Dakota, Ohio, Pennsyl21 vania, Vermont, Washington, and Wisconsin; or

22 (B) any unit of local government within a

23 State referred to in subparagraph (A).

24 (3) FEDERALLY DECLINED-REFERRED.—The

25 term ‘‘federally declined-referred’’—
†

717

S 2611 ES

1 (A) means, with respect to a criminal case,

2 that a decision has been made in that case by

3 a United States Attorney or a Federal law en4 forcement agency during a Federal investiga5 tion to no longer pursue Federal criminal

6 charges against a defendant and to refer such

7 investigation to a State or local jurisdiction for

8 possible prosecution; and

9 (B) includes a decision made on an individ10 ualized case-by-case basis as well as a decision

11 made pursuant to a general policy or practice

12 or pursuant to prosecutorial discretion.

13 (4) FEDERALLY INITIATED.—The term ‘‘feder14 ally initiated’’ means, with respect to a criminal

15 case, that the case results from a criminal investiga16 tion or an arrest involving Federal law enforcement

17 authorities for a potential violation of Federal crimi18 nal law, including investigations resulting from

19 multi-jurisdictional task forces.

20 (e) AUTHORIZATION OF APPROPRIATIONS.—There

21 are authorized to be appropriated to carry out this section

22 $28,000,000 for fiscal year 2006 and such sums as may

23 be necessary for fiscal years thereafter.
†

718

S 2611 ES

1 SEC. 757. SOUTHWEST BORDER PROSECUTION INITIATIVE.

2 (a) REIMBURSEMENT TO STATE AND LOCAL PROS3 ECUTORS FOR PROSECUTING FEDERALLY INITIATED

4 DRUG CASES.—The Attorney General shall, subject to the

5 availability of appropriations, reimburse Southern Border

6 State and county prosecutors for prosecuting federally ini7 tiated and referred drug cases.

8 (b) AUTHORIZATION OF APPROPRIATIONS.—There

9 are authorized to be appropriated $50,000,000 for each

10 of the fiscal years 2007 through 2012 to carry out sub11 section (a).

12 SEC. 758. GRANT PROGRAM TO ASSIST ELIGIBLE APPLI13 CANTS.

14 (a) SHORT TITLE.—This section may be cited as the

15 ‘‘Initial Entry, Adjustment, and Citizenship Assistance

16 Grant Act of 2006’’.

17 (b) PURPOSE.—The purpose of this section is to es18 tablish a grant program within the Bureau of Citizenship

19 and Immigration Services that provides funding to com20 munity-based organizations, including community-based

21 legal service organizations, as appropriate, to develop and

22 implement programs to assist eligible applicants for the

23 conditional nonimmigrant worker program established

24 under this Act by providing them with the services de25 scribed in subsection (d)(2).

26 (c) DEFINITIONS.—In this section:
†

719

S 2611 ES

1 (1) COMMUNITY-BASED ORGANIZATION.—The

2 term ‘‘community-based organization’’ means a non3 profit, tax-exempt organization, including a faith4 based organization, whose staff has experience and

5 expertise in meeting the legal, social, educational,

6 cultural educational, or cultural needs of immi7 grants, refugees, persons granted asylum, or persons

8 applying for such statuses.

9 (2) IEACA GRANT.—The term ‘‘IEACA grant’’

10 means an Initial Entry, Adjustment, and Citizenship

11 Assistance Grant authorized under subsection (d).

12 (d) ESTABLISHMENT OF INITIAL ENTRY, ADJUST13 MENT, AND CITIZENSHIP ASSISTANCE GRANT PRO14 GRAM.—

15 (1) GRANTS AUTHORIZED.—The Secretary,

16 working through the Director of the Bureau of Citi17 zenship and Immigration Services, may award

18 IEACA grants to community-based organizations.

19 (2) USE OF FUNDS.—Grants awarded under

20 this section may be used for the design and imple21 mentation of programs to provide the following serv22 ices:

23 (A) INITIAL APPLICATION.—Assistance

24 and instruction, including legal assistance, to

25 aliens making initial application for treatment
†

720

S 2611 ES

1 under the program established by section 218D

2 of the Immigration and Nationality Act, as

3 added by section 601. Such assistance may in4 clude assisting applicants in—

5 (i) screening to assess prospective ap6 plicants’ potential eligibility or lack of eli7 gibility;

8 (ii) filling out applications;

9 (iii) gathering proof of identification,

10 employment, residence, and tax payment;

11 (iv) gathering proof of relationships of

12 eligible family members;

13 (v) applying for any waivers for which

14 applicants and qualifying family members

15 may be eligible; and

16 (vi) any other assistance that the Sec17 retary or grantee considers useful to aliens

18 who are interested in filing applications for

19 treatment under such section 218D.

20 (B) ADJUSTMENT OF STATUS.—Assistance

21 and instruction, including legal assistance, to

22 aliens seeking to adjust their status in accord23 ance with section 245 or 245B of the Immigra24 tion and Nationality Act.
†

721

S 2611 ES

1 (C) CITIZENSHIP.—Assistance and instruc2 tion to applicants on—

3 (i) the rights and responsibilities of

4 United States Citizenship;

5 (ii) English as a second language;

6 (iii) civics; or

7 (iv) applying for United States citi8 zenship.

9 (3) DURATION AND RENEWAL.—

10 (A) DURATION.—Each grant awarded

11 under this section shall be awarded for a period

12 of not more than 3 years.

13 (B) RENEWAL.—The Secretary may renew

14 any grant awarded under this section in 1-year

15 increments.

16 (4) APPLICATION FOR GRANTS.—Each entity

17 desiring an IEACA grant under this section shall

18 submit an application to the Secretary at such time,

19 in such manner, and accompanied by such informa20 tion as the Secretary may require.

21 (5) ELIGIBLE ORGANIZATIONS.—A community22 based organization applying for a grant under this

23 section to provide services described in subparagraph

24 (A), (B), or (C)(iv) of paragraph (2) may not receive

25 such a grant unless the organization is—
†

722

S 2611 ES

1 (A) recognized by the Board of Immigra2 tion Appeals under section 292.2 of title 8,

3 Code of Federal Regulations; or

4 (B) otherwise directed by an attorney.

5 (6) SELECTION OF GRANTEES.—Grants award6 ed under this section shall be awarded on a competi7 tive basis.

8 (7) GEOGRAPHIC DISTRIBUTION OF GRANTS.—

9 The Secretary shall approve applications under this

10 section in a manner that ensures, to greatest extent

11 practicable, that—

12 (A) not less than 50 percent of the funding

13 for grants under this section are awarded to

14 programs located in the 10 States with the

15 highest percentage of foreign-born residents;

16 and

17 (B) not less than 20 percent of the funding

18 for grants under this section are awarded to

19 programs located in States that are not de20 scribed in subparagraph (A).

21 (8) ETHNIC DIVERSITY.—The Secretary shall

22 ensure that community-based organizations receiving

23 grants under this section provide services to an eth24 nically diverse population, to the greatest extent pos25 sible.
†

723

S 2611 ES

1 (e) LIAISON BETWEEN USCIS AND GRANTEES.—

2 The Secretary shall establish a liaison between the Bureau

3 of Citizenship and Immigration Services and the commu4 nity of providers of services under this section to assure

5 quality control, efficiency, and greater client willingness

6 to come forward.

7 (f) REPORTS TO CONGRESS.—Not later than 180

8 days after the date of the enactment of this Act, and each

9 subsequent July 1, the Secretary shall submit a report to

10 Congress that includes information regarding—

11 (1) the status of the implementation of this sec12 tion;

13 (2) the grants issued pursuant to this section;

14 and

15 (3) the results of those grants.

16 (g) SOURCE OF GRANT FUNDS.—

17 (1) APPLICATION FEES.—The Secretary may

18 use funds made available under sections 218A(l)(2)

19 and 218D(f)(4)(B) of the Immigration and Nation20 ality Act, as added by this Act, to carry out this sec21 tion.

22 (2) AUTHORIZATION OF APPROPRIATIONS.—

23 (A) AMOUNTS AUTHORIZED.—In addition

24 to the amounts made available under paragraph

25 (1), there are authorized to be appropriated
†

724

S 2611 ES

1 such additional sums as may be necessary for

2 each of the fiscal years 2007 through 2011 to

3 carry out this section.

4 (B) AVAILABILITY.—Any amounts appro5 priated pursuant to subparagraph (A) shall re6 main available until expended.

7 (h) DISTRIBUTION OF FEES AND FINES.—

8 (1) H–2C VISA FEES.—Notwithstanding section

9 218A(l) of the Immigration and Nationality Act, as

10 added by section 403, 2 percent of the fees collected

11 under section 218A of such Act shall be made avail12 able for grants under the Initial Entry, Adjustment,

13 and Citizenship Assistance Grant Program estab14 lished under this section.

15 (2) CONDITIONAL NONIMMIGRANT VISA FEES

16 AND FINES.—Notwithstanding section 218D(f)(4) of

17 the Immigration and Nationality Act, as added by

18 section 601, 2 percent of the fees and fines collected

19 under section 218D of such Act shall be made avail20 able for grants under the Initial Entry, Adjustment,

21 and Citizenship Assistance Grant Program estab22 lished under this section.

23 SEC. 759. SCREENING OF MUNICIPAL SOLID WASTE.

24 (a) DEFINITIONS.—In this section:
†

725

S 2611 ES

1 (1) BUREAU.—The term ‘‘ Bureau’’ means the

2 Bureau of Customs and Border Protection.

3 (2) COMMERCIAL MOTOR VEHICLE.—The term

4 ‘‘commercial motor vehicle’’ has the meaning given

5 the term in section 31101 of title 49, United States

6 Code.

7 (3) COMMISSIONER.—The term ‘‘Commis8 sioner’’ means the Commissioner of the Bureau.

9 (4) MUNICIPAL SOLID WASTE.—The term ‘‘mu10 nicipal solid waste’’ includes sludge (as defined in

11 section 1004 of the Solid Waste Disposal Act (42

12 U.S.C. 6903)).

13 (b) REPORTS TO CONGRESS.—Not later than 90 days

14 after the date of enactment of this Act, the Commissioner

15 shall submit to Congress a report that—

16 (1) indicates whether the methodologies and

17 technologies used by the Bureau to screen for and

18 detect the presence of chemical, nuclear, biological,

19 and radiological weapons in municipal solid waste

20 are as effective as the methodologies and tech21 nologies used by the Bureau to screen for those ma22 terials in other items of commerce entering the

23 United States through commercial motor vehicle

24 transport; and
†

726

S 2611 ES

1 (2) if the report indicates that the methodolo2 gies and technologies used to screen municipal solid

3 waste are less effective than those used to screen

4 other items of commerce, identifies the actions that

5 the Bureau will take to achieve the same level of ef6 fectiveness in the screening of municipal solid waste,

7 including actions necessary to meet the need for ad8 ditional screening technologies.

9 (c) IMPACT ON COMMERCIAL MOTOR VEHICLES.—If

10 the Commissioner fails to fully implement an action identi11 fied under subsection (b)(2) before the earlier of the date

12 that is 180 days after the date on which the report under

13 subsection (b) is required to be submitted or the date that

14 is 180 days after the date on which the report is sub15 mitted, the Secretary shall deny entry into the United

16 States of any commercial motor vehicle carrying municipal

17 solid waste until the Secretary certifies to Congress that

18 the methodologies and technologies used by the Bureau

19 to screen for and detect the presence of chemical, nuclear,

20 biological, and radiological weapons in municipal solid

21 waste are as effective as the methodologies and tech22 nologies used by the Bureau to screen for those materials

23 in other items of commerce entering into the United

24 States through commercial motor vehicle transport.
†

727

S 2611 ES

1 SEC. 760. ACCESS TO IMMIGRATION SERVICES IN AREAS

2 THAT ARE NOT ACCESSIBLE BY ROAD.

3 Notwithstanding any other provision of law, the Sec4 retary shall permit an employee of Customs and Border

5 Protection or Immigration and Customs Enforcement who

6 carries out the functions of Customs and Border Protec7 tion or Immigration and Customs Enforcement in a geo8 graphic area that is not accessible by road to carry out

9 any function that was performed by an employee of the

10 Immigration and Naturalization Service in such area prior

11 to the date of the enactment of the Homeland Security

12 Act of 2002 (6 U.S.C. 101 et seq.).

13 SEC. 761. BORDER SECURITY ON CERTAIN FEDERAL LAND.

14 (a) DEFINITIONS.—In this section:

15 (1) PROTECTED LAND.—The term ‘‘protected

16 land’’ means land under the jurisdiction of the Sec17 retary concerned.

18 (2) SECRETARY CONCERNED.—The term ‘‘Sec19 retary concerned’’ means—

20 (A) with respect to land under the jurisdic21 tion of the Secretary of Agriculture, the Sec22 retary of Agriculture; and

23 (B) with respect to land under the jurisdic24 tion of the Secretary of the Interior, the Sec25 retary of the Interior.

26 (b) SUPPORT FOR BORDER SECURITY NEEDS.—
†

728

S 2611 ES

1 (1) IN GENERAL.—To gain operational control

2 over the international land borders of the United

3 States and to prevent the entry of terrorists, unlaw4 ful aliens, narcotics, and other contraband into the

5 United States, the Secretary, in cooperation with the

6 Secretary concerned, shall provide—

7 (A) increased Customs and Border Protec8 tion personnel to secure protected land along

9 the international land borders of the United

10 States;

11 (B) Federal land resource training for

12 Customs and Border Protection agents dedi13 cated to protected land; and

14 (C) Unmanned Aerial Vehicles, aerial as15 sets, Remote Video Surveillance camera sys16 tems, and sensors on protected land that is di17 rectly adjacent to the international land border

18 of the United States, with priority given to

19 units of the National Park System.

20 (2) COORDINATION.—In providing training for

21 Customs and Border Protection agents under para22 graph (1)(B), the Secretary shall coordinate with the

23 Secretary concerned to ensure that the training is

24 appropriate to the mission of the National Park

25 Service, the United States Fish and Wildlife Service,
†

729

S 2611 ES

1 the Forest Service, or the relevant agency of the De2 partment of the Interior or the Department of Agri3 culture to minimize the adverse impact on natural

4 and cultural resources from border protection activi5 ties.

6 (c) INVENTORY OF COSTS AND ACTIVITIES.—The

7 Secretary concerned shall develop and submit to the Sec8 retary an inventory of costs incurred by the Secretary con9 cerned relating to illegal border activity, including the cost

10 of equipment, training, recurring maintenance, construc11 tion of facilities, restoration of natural and cultural re12 sources, recapitalization of facilities, and operations.

13 (d) RECOMMENDATIONS.—The Secretary shall—

14 (1) develop joint recommendations with the Na15 tional Park Service, the United States Fish and

16 Wildlife Service, and the Forest Service for an ap17 propriate cost recovery mechanism relating to items

18 identified in subsection (c); and

19 (2) not later than March 31, 2007, submit to

20 the appropriate congressional committees (as defined

21 in section 2 of the Homeland Security Act of 2002

22 (6 U.S.C. 101)), including the Subcommittee on Na23 tional Parks of the Senate and the Subcommittee on

24 National Parks, Recreation and Public Lands of the
†

730

S 2611 ES

1 House of Representatives, the recommendations de2 veloped under paragraph (1).

3 (e) BORDER PROTECTION STRATEGY.—The Sec4 retary, the Secretary of the Interior, and the Secretary

5 of Agriculture shall jointly develop a border protection

6 strategy that supports the border security needs of the

7 United States in the manner that best protects—

8 (1) units of the National Park System;

9 (2) National Forest System land;

10 (3) land under the jurisdiction of the United

11 States Fish and Wildlife Service; and

12 (4) other relevant land under the jurisdiction of

13 the Department of the Interior or the Department

14 of Agriculture.

15 SEC. 762. UNMANNED AERIAL VEHICLES.

16 (a) UNMANNED AERIAL VEHICLES AND ASSOCIATED

17 INFRASTRUCTURE.—The Secretary shall acquire and

18 maintain MQ–9 unmanned aerial vehicles for use on the

19 border, including related equipment such as—

20 (1) additional sensors;

21 (2) critical spares;

22 (3) satellite command and control; and

23 (4) other necessary equipment for operational

24 support.

25 (b) AUTHORIZATION OF APPROPRIATIONS.—
†

731

S 2611 ES

1 (1) IN GENERAL.—There are authorized to be

2 appropriated to the Secretary to carry out sub3 section (a)—

4 (A) $178,400,000 for fiscal year 2007; and

5 (B) $276,000,000 for fiscal year 2008.

6 (2) AVAILABILITY OF FUNDS.—Amounts appro7 priated pursuant to paragraph (1) shall remain

8 available until expended.

9 SEC. 763. RELIEF FOR WIDOWS AND ORPHANS.

10 (a) IN GENERAL.—

11 (1) IN GENERAL.—In applying clause (iii) of

12 section 201(b)(2)(A) of the Immigration and Na13 tionality Act, as added by section 504(a), to an alien

14 whose citizen relative died before the date of the en15 actment of this Act, the alien relative may (notwith16 standing the deadlines specified in such clause) file

17 the classification petition under section

18 204(a)(1)(A)(ii) of such Act not later than 2 years

19 after the date of the enactment of this Act.

20 (2) ELIGIBILITY FOR PAROLE.—If an alien was

21 excluded, deported, removed or departed voluntarily

22 before the date of the enactment of this Act based

23 solely upon the alien’s lack of classification as an

24 immediate relative (as defined by 201(b)(2)(A)(ii) of
†

732

S 2611 ES

1 the Immigration and Nationality Act) due to the

2 citizen’s death—

3 (A) such alien shall be eligible for parole

4 into the United States pursuant to the Attorney

5 General’s discretionary authority under section

6 212(d)(5) of such Act; and

7 (B) such alien’s application for adjustment

8 of status shall be considered notwithstanding

9 section 212(a)(9) of such Act.

10 (b) ADJUSTMENT OF STATUS.—Section 245 (8

11 U.S.C. 1255), as amended by section 408(h) of this Act,

12 is further amended by adding at the end the following:

13 ‘‘(o) APPLICATION FOR ADJUSTMENT OF STATUS BY

14 SURVIVING SPOUSES, PARENTS, AND CHILDREN.—

15 ‘‘(1) IN GENERAL.—Any alien described in

16 paragraph (2) who applies for adjustment of status

17 before the death of the qualifying relative, may have

18 such application adjudicated as if such death had

19 not occurred.

20 ‘‘(2) ALIEN DESCRIBED.—An alien is described

21 in this paragraph is an alien who—

22 ‘‘(A) is an immediate relative (as described

23 in section 201(b)(2)(A));
†

733

S 2611 ES

1 ‘‘(B) is a family-sponsored immigrant (as

2 described in subsection (a) or (d) of section

3 203);

4 ‘‘(C) is a derivative beneficiary of an em5 ployment-based immigrant under section 203(b)

6 (as described in section 203(d)); or

7 ‘‘(D) is a derivative beneficiary of a diver8 sity immigrant (as described in section

9 203(c)).’’.

10 (c) TRANSITION PERIOD.—

11 (1) IN GENERAL.—Notwithstanding a denial of

12 an application for adjustment of status for an alien

13 whose qualifying relative died before the date of the

14 enactment of this Act, such application may be re15 newed by the alien through a motion to reopen,

16 without fee, if such motion is filed not later than 2

17 years after such date of enactment.

18 (2) ELIGIBILITY FOR PAROLE.—If an alien was

19 excluded, deported, removed or departed voluntarily

20 before the date of the enactment of this Act—

21 (A) such alien shall be eligible for parole

22 into the United States pursuant to the Attorney

23 General’s discretionary authority under section

24 212(d)(5) of the Immigration and Nationality

25 Act; and
†

734

S 2611 ES

1 (B) such alien’s application for adjustment

2 of status shall be considered notwithstanding

3 section 212(a)(9) of such Act.

4 (d) PROCESSING OF IMMIGRANT VISAS.—Section

5 204(b) (8 U.S.C. 1154), as amended by section 204(b)

6 of this Act, is further amended—

7 (1) by striking ‘‘After an investigation’’ and in8 serting the following:

9 ‘‘(1) IN GENERAL.—After an investigation’’;

10 and

11 (2) by adding at the end the following:

12 ‘‘(2) DEATH OF QUALIFYING RELATIVE.—

13 ‘‘(A) IN GENERAL.—Any alien described in

14 paragraph (2) whose qualifying relative died be15 fore the completion of immigrant visa proc16 essing may have an immigrant visa application

17 adjudicated as if such death had not occurred.

18 An immigrant visa issued before the death of

19 the qualifying relative shall remain valid after

20 such death.

21 ‘‘(B) ALIEN DESCRIBED.—An alien is de22 scribed in this paragraph is an alien who—

23 ‘‘(i) is an immediate relative (as de24 scribed in section 201(b)(2)(A));
†

735

S 2611 ES

1 ‘‘(ii) is a family-sponsored immigrant

2 (as described in subsection (a) or (d) of

3 section 203);

4 ‘‘(iii) is a derivative beneficiary of an

5 employment-based immigrant under section

6 203(b) (as described in section 203(d)); or

7 ‘‘(iv) is a derivative beneficiary of a

8 diversity immigrant (as described in sec9 tion 203(c)).’’.

10 (e) NATURALIZATION.—Section 319(a) (8 U.S.C.

11 1429(a)) is amended by inserting ‘‘(or, if the spouse is

12 deceased, the spouse was a citizen of the United States)’’

13 after ‘‘citizen of the United States’’.

14 SEC. 764. TERRORIST ACTIVITIES.

15 Section 212(a)(3)(B)(i) (8 U.S.C. 1182(a)(3)(B)(i))

16 is amended—

17 (1) in subclause (III), by striking ‘‘, under cir18 cumstances indicating an intention to cause death or

19 serious bodily harm, incited’’ and inserting ‘‘incited

20 or advocated’’; and

21 (2) in subclause (VII), by striking ‘‘or espouses

22 terrorist activity or persuades others to endorse or

23 espouse’’ and inserting ‘‘espouses, or advocates ter24 rorist activity or persuades others to endorse,

25 espouse, or advocate’’.
†

736

S 2611 ES

1 SEC. 765. FAMILY UNITY.

2 Section 212(a)(9) (8 U.S.C. 1182(a)(9)), as amended

3 by section 212(a) of this Act, is further amended—

4 (1) in subparagraph (C)(ii), by striking ‘‘be5 tween—’’ and all that follows and inserting the fol6 lowing: ‘‘between—

7 ‘‘(I) the alien having been bat8 tered or subjected to extreme cruelty;

9 and

10 ‘‘(II) the alien’s removal, depar11 ture from the United States, reentry

12 or reentries into the United States, or

13 attempted reentry into the United

14 States.’’; and

15 (2) by adding at the end the following:

16 ‘‘(D) WAIVER.—

17 ‘‘(i) IN GENERAL.—The Secretary

18 may waive the application of subpara19 graphs (B) and (C) for an alien who is a

20 beneficiary of a petition filed under section

21 201 or 203 if such petition was filed not

22 later than the date of the enactment of the

23 Comprehensive Immigration Reform Act of

24 2006.
†

737

S 2611 ES

1 ‘‘(ii) FINE.—An alien who is granted

2 a waiver under clause (i) shall pay a

3 $2,000 fine.’’.

4 SEC. 766. TRAVEL DOCUMENT PLAN.

5 Section 7209 (b)(1) of the Intelligence Reform and

6 Terrorism Prevention Act of 2004 (8 U.S.C. 1185 note)

7 is amended by striking ‘‘January 1, 2008’’ and inserting

8 ‘‘June 1, 2009’’.

9 SEC. 767. ENGLISH AS NATIONAL LANGUAGE.

10 (a) IN GENERAL.—Title 4, United States Code, is

11 amended by adding at the end the following:

12 ‘‘CHAPTER 6—LANGUAGE OF THE

13 GOVERNMENT

‘‘Sec.

‘‘161. Declaration of national language.

‘‘162. Preserving and enhancing the role of the national language.

14 ‘‘§ 161. Declaration of national language

15 ‘‘English is the national language of the United

16 States.

17 ‘‘§ 162. Preserving and enhancing the role of the na18 tional language

19 ‘‘The Government of the United States shall preserve

20 and enhance the role of English as the national language

21 of the United States of America. Unless otherwise author22 ized or provided by law, no person has a right, entitlement,

23 or claim to have the Government of the United States or
†

738

S 2611 ES

1 any of its officials or representatives act, communicate,

2 perform or provide services, or provide materials in any

3 language other than English. If exceptions are made, that

4 does not create a legal entitlement to additional services

5 in that language or any language other than English. If

6 any forms are issued by the Federal Government in a lan7 guage other than English (or such forms are completed

8 in a language other than English), the English language

9 version of the form is the sole authority for all legal pur10 poses.’’.

11 (b) CONFORMING AMENDMENT.—The table of chap12 ters for title 4, United States Code, is amended by adding

13 at the end the following:

‘‘6. Language of the Government ................................................. 161’’.

14 SEC. 768. REQUIREMENTS FOR NATURALIZATION.

15 (a) FINDINGS.—The Senate makes the following

16 findings:

17 (1) Under United States law (8 U.S.C. 1423

18 (a)), lawful permanent residents of the United

19 States who have immigrated from foreign countries

20 must, among other requirements, demonstrate an

21 understanding of the English language, United

22 States history and Government, to become citizens

23 of the United States.

24 (2) The Department of Homeland Security is

25 currently conducting a review of the testing process
†

739

S 2611 ES

1 used to ensure prospective United States citizens

2 demonstrate said knowledge of the English language

3 and United States history and Government for the

4 purpose of redesigning said test.

5 (b) DEFINITIONS.—For purposes of this section only,

6 the following words are defined:

7 (1) KEY DOCUMENTS.—The term ‘‘key docu8 ments’’ means the documents that established or ex9 plained the foundational principles of democracy in

10 the United States, including the United States Con11 stitution and the amendments to the Constitution

12 (particularly the Bill of Rights), the Declaration of

13 Independence, the Federalist Papers, and the Eman14 cipation Proclamation.

15 (2) KEY EVENTS.—The term ‘‘key events’’

16 means the critical turning points in the history of

17 the United States (including the American Revolu18 tion, the Civil War, the world wars of the twentieth

19 century, the civil rights movement, and the major

20 court decisions and legislation) that contributed to

21 extending the promise of democracy in American

22 life.

23 (3) KEY IDEAS.—The term ‘‘key ideas’’ means

24 the ideas that shaped the democratic institutions

25 and heritage of the United States, including the no-
†

740

S 2611 ES

1 tion of equal justice under the law, freedom, individ2 ualism, human rights, and a belief in progress.

3 (4) KEY PERSONS.—The term ‘‘key persons’’

4 means the men and women who led the United

5 States as founding fathers, elected officials, sci6 entists, inventors, pioneers, advocates of equal

7 rights, entrepreneurs, and artists.

8 (c) GOALS FOR CITIZENSHIP TEST REDESIGN.—The

9 Department of Homeland Security shall establish as goals

10 of the testing process designed to comply with provisions

11 of (8 U.S.C. 1423 (a)) that prospective citizens—

12 (1) demonstrate a sufficient understanding of

13 the English language for usage in everyday life;

14 (2) demonstrate an understanding of American

15 common values and traditions, including the prin16 ciples of the Constitution of the United States, the

17 Pledge of Allegiance, respect for the flag of the

18 United States, the National Anthem, and voting in

19 public elections;

20 (3) demonstrate an understanding of the his21 tory of the United States, including the key events,

22 key persons, key ideas, and key documents that

23 shaped the institutions and democratic heritage of

24 the United States;
†

741

S 2611 ES

1 (4) demonstrate an attachment to the principles

2 of the Constitution of the United States and the well

3 being and happiness of the people of the United

4 States; and

5 (5) demonstrate an understanding of the rights

6 and responsibilities of citizenship in the United

7 States.

8 (d) IMPLEMENTATION.—The Secretary of Homeland

9 Security shall implement changes to the testing process

10 designed to ensure compliance with (8 U.S.C. 1423 (a))

11 not later than January 1, 2008.

12 SEC. 769. DECLARATION OF ENGLISH.

13 English is the common and unifying language of the

14 United States that helps provide unity for the people of

15 the United States.

16 SEC. 770. PRESERVING AND ENHANCING THE ROLE OF THE

17 ENGLISH LANGUAGE.

18 The Government of the United States shall preserve

19 and enhance the role of English as the common and uni20 fying language of America. Nothing herein shall diminish

21 or expand any existing rights under the law of the United

22 States relative to services or materials provided by the

23 Government of the United States in any language other

24 than English.
†

742

S 2611 ES

1 For the purposes of this section, law is defined as

2 including provisions of the United States Code and the

3 United States Constitution, controlling judicial decisions,

4 regulations, and controlling Presidential Executive Orders.

5 (a) CONFORMING AMENDMENT.—The table of chap6 ters for title 4, United States Code, is amended by adding

7 at the end Language of Government of the United States.

8 SEC. 771. EXCLUSION OF ILLEGAL ALIENS FROM CONGRES9 SIONAL APPORTIONMENT TABULATIONS.

10 In addition to any report under this Act the Director

11 of the Bureau of the Census shall submit to Congress a

12 report on the impact of illegal immigration on the appor13 tionment of Representatives of Congress among the sev14 eral States, and any methods and procedures that the Di15 rector determines to be feasible and appropriate, to ensure

16 that individuals who are found by an authorized Federal

17 agency to be unlawfully present in the United States are

18 not counted in tabulating population for purposes of ap19 portionment of Representatives in Congress among the

20 several States.

21 SEC. 772. OFFICE OF INTERNAL CORRUPTION INVESTIGA22 TION.

23 (a) INTERNAL CORRUPTION; BENEFITS FRAUD.—

24 Section 453 of the Homeland Security Act of 2002 (6

25 U.S.C. 273) is amended—
†

743

S 2611 ES

1 (1) by striking ‘‘the Bureau of’’ each place it

2 appears and inserting ‘‘United States’’;

3 (2) in subsection (a)—

4 (A) by striking paragraph (1) and insert5 ing the following:

6 ‘‘(1) establishing the Office of Internal Corrup7 tion Investigation, which shall—

8 ‘‘(A) receive, process, administer, and in9 vestigate criminal and noncriminal allegations

10 of misconduct, corruption, and fraud involving

11 any employee or contract worker of United

12 States Citizenship and Immigration Services

13 that are not subject to investigation by the In14 spector General for the Department;

15 ‘‘(B) ensure that all complaints alleging

16 any violation described in subparagraph (A) are

17 handled and stored in a manner appropriate to

18 their sensitivity;

19 ‘‘(C) have access to all records, reports,

20 audits, reviews, documents, papers, rec21 ommendations, or other material available to

22 United States Citizenship and Immigration

23 Services, which relate to programs and oper24 ations for which the Director is responsible

25 under this Act;
†

744

S 2611 ES

1 ‘‘(D) request such information or assist2 ance from any Federal, State, or local govern3 ment agency as may be necessary for carrying

4 out the duties and responsibilities under this

5 section;

6 ‘‘(E) require the production of all informa7 tion, documents, reports, answers, records, ac8 counts, papers, and other data and documen9 tary evidence necessary to carry out the func10 tions under this section—

11 ‘‘(i) by subpoena, which shall be en12 forceable, in the case of contumacy or re13 fusal to obey, by order of any appropriate

14 United States district court; or

15 ‘‘(ii) through procedures other than

16 subpoenas if obtaining documents or infor17 mation from Federal agencies;

18 ‘‘(F) administer to, or take from, any per19 son an oath, affirmation, or affidavit, as nec20 essary to carry out the functions under this sec21 tion, which oath, affirmation, or affidavit, if ad22 ministered or taken by or before an agent of

23 the Office of Internal Corruption Investigation

24 shall have the same force and effect as if ad-
†

745

S 2611 ES

1 ministered or taken by or before an officer hav2 ing a seal;

3 ‘‘(G) investigate criminal allegations and

4 noncriminal misconduct;

5 ‘‘(H) acquire adequate office space, equip6 ment, and supplies as necessary to carry out

7 the functions and responsibilities under this

8 section; and

9 ‘‘(I) be under the direct supervision of the

10 Director.’’;

11 (B) in paragraph (2), by striking ‘‘and’’ at

12 the end;

13 (C) in paragraph (3), by striking the pe14 riod at the end and inserting ‘‘; and’’; and

15 (D) by adding at the end the following:

16 ‘‘(4) establishing the Office of Immigration

17 Benefits Fraud Investigation, which shall—

18 ‘‘(A) conduct administrative investigations,

19 including site visits, to address immigration

20 benefit fraud;

21 ‘‘(B) assist United States Citizenship and

22 Immigration Services provide the right benefit

23 to the right person at the right time;
†

746

S 2611 ES

1 ‘‘(C) track, measure, assess, conduct pat2 tern analysis, and report fraud-related data to

3 the Director; and

4 ‘‘(D) work with counterparts in other Fed5 eral agencies on matters of mutual interest or

6 information-sharing relating to immigration

7 benefit fraud.’’; and

8 (3) by adding at the end the following:

9 ‘‘(c) ANNUAL REPORT.—The Director, in consulta10 tion with the Office of Internal Corruption Investigations,

11 shall submit an annual report to the Committee on the

12 Judiciary of the Senate and the Committee on the Judici13 ary of the House of Representatives that describes—

14 ‘‘(1) the activities of the Office, including the

15 number of investigations began, completed, pending,

16 turned over to the Inspector General for criminal in17 vestigations, and turned over to a United States At18 torney for prosecution; and

19 ‘‘(2) the types of allegations investigated by the

20 Office during the 12-month period immediately pre21 ceding the submission of the report that relate to the

22 misconduct, corruption, and fraud described in sub23 section (a)(1).’’.

24 (b) USE OF IMMIGRATION FEES TO COMBAT

25 FRAUD.—Section 286(v)(2)(B) (8 U.S.C. 1356(v)(2)(B))
†

747

S 2611 ES

1 is amended by adding at the end the following: ‘‘Not less

2 than 20 percent of the funds made available under this

3 subparagraph shall be used for activities and functions de4 scribed in paragraphs (1) and (4) of section 453(a) of the

5 Homeland Security Act of 2002 (6 U.S.C. 273(a)).’’.

6 SEC. 773. ADJUSTMENT OF STATUS FOR CERTAIN PER7 SECUTED RELIGIOUS MINORITIES.

8 (a) IN GENERAL.—The Secretary shall adjust the

9 status of an alien to that of an alien lawfully admitted

10 for permanent residence if the alien—

11 (1) is a persecuted religious minority;

12 (2) is admissible to the United States as an im13 migrant, except as provided under subsection (b);

14 (3) had an application for asylum pending on

15 May 1, 2003;

16 (4) applies for such adjustment of status;

17 (5) was physically present in the United States

18 on the date the application for such adjustment is

19 filed; and

20 (6) pays a fee, in an amount determined by the

21 Secretary, for the processing of such application.

22 (b) WAIVER OF CERTAIN GROUNDS FOR INADMIS23 SIBILITY.—

24 (1) INAPPLICABLE PROVISION.—Section

25 212(a)(7) of the Immigration and Nationality Act (8
†

748

S 2611 ES

1 U.S.C. 1182(a)(7)) shall not apply to any adjust2 ment of status under this section.

3 (2) WAIVER.—The Secretary may waive any

4 other provision of section 212(a) of such Act (except

5 for paragraphs (2) and (3)) if extraordinary and

6 compelling circumstances warrant such an adjust7 ment for humanitarian purposes, to ensure family

8 unity, or if it is otherwise in the public interest.

9 SEC. 774. ELIGIBILITY OF AGRICULTURAL AND FORESTRY

10 WORKERS FOR CERTAIN LEGAL ASSISTANCE.

11 Section 305 of the Immigration Reform and Control

12 Act of 1986 (8 U.S.C. 1101 note; Public Law 99–603)

13 is amended—

14 (1) by striking ‘‘section 101(a)(15)(H)(ii)(a) of

15 the Immigration and Nationality Act (8 U.S.C.

16 1101(a)(15)(H)(ii)(a))’’ and inserting ‘‘item (a) or

17 (b) of section 101(a)(15)(H)(ii) of the Immigration

18 and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii))’’;

19 and

20 (2) by inserting ‘‘or forestry’’ after ‘‘agricul21 tural’’.

22 SEC. 775. DESIGNATION OF PROGRAM COUNTRIES.

23 Section 217(c)(1) (8 U.S.C. 1187(c)(1)) is amended

24 to read as follows:
†

749

S 2611 ES

1 ‘‘(1) IN GENERAL.—As soon as any country

2 fully meets the requirements under paragraph (2),

3 the Secretary of Homeland Security, in consultation

4 with the Secretary of State, shall designate such

5 country as a program country.’’.

6 SEC. 776. GLOBAL HEALTHCARE COOPERATION.

7 (a) GLOBAL HEALTHCARE COOPERATION.—Title III

8 (8 U.S.C. 1401 et seq.) is amended by inserting after sec9 tion 317 the following:

10 ‘‘SEC. 317A. TEMPORARY ABSENCE OF ALIENS PROVIDING

11 HEALTHCARE IN DEVELOPING COUNTRIES.

12 ‘‘(a) IN GENERAL.—Notwithstanding any other pro13 vision of this Act, the Secretary of Homeland Security

14 shall allow an eligible alien and the spouse or child of such

15 alien to reside in a candidate country during the period

16 that the eligible alien is working as a physician or other

17 healthcare worker in a candidate country. During such pe18 riod the eligible alien and such spouse or child shall be

19 considered—

20 ‘‘(1) to be physically present and residing in the

21 United States for purposes of naturalization under

22 section 316(a); and

23 ‘‘(2) to meet the continuous residency require24 ments under section 316(b).

25 ‘‘(b) DEFINITIONS.—In this section:
†

750

S 2611 ES

1 ‘‘(1) CANDIDATE COUNTRY.—The term ‘can2 didate country’ means a country that the Secretary

3 of State determines is—

4 ‘‘(A) eligible for assistance from the Inter5 national Development Association, in which the

6 per capita income of the country is equal to or

7 less than the historical ceiling of the Inter8 national Development Association for the appli9 cable fiscal year, as defined by the International

10 Bank for Reconstruction and Development;

11 ‘‘(B) classified as a lower middle income

12 country in the then most recent edition of the

13 World Development Report for Reconstruction

14 and Development published by the International

15 Bank for Reconstruction and Development and

16 having an income greater than the historical

17 ceiling for International Development Associa18 tion eligibility for the applicable fiscal year; or

19 ‘‘(C) qualifies to be a candidate country

20 due to special circumstances, including natural

21 disasters or public health emergencies.

22 ‘‘(2) ELIGIBLE ALIEN.—The term ‘eligible

23 alien’ means an alien who—

24 ‘‘(A) has been lawfully admitted to the

25 United States for permanent residence; and
†

751

S 2611 ES

1 ‘‘(B) is a physician or other healthcare

2 worker.

3 ‘‘(c) CONSULTATION.—The Secretary of Homeland

4 Security shall consult with the Secretary of State in car5 rying out this subsection.

6 ‘‘(d) PUBLICATION.—The Secretary of State shall

7 publish—

8 ‘‘(1) not later than 6 months after the date of

9 the enactment of the Comprehensive Immigration

10 Reform Act of 2006, and annually thereafter, a list

11 of candidate countries; and

12 ‘‘(2) an immediate amendment to such list at

13 any time to include any country that qualifies as a

14 candidate country due to special circumstances

15 under subsection (b)(1)(C).’’.

16 (b) RULEMAKING.—

17 (1) REQUIREMENT.—Not later than 6 months

18 after the date of the enactment of this Act, the Sec19 retary shall promulgate regulations to carry out the

20 amendments made by this section.

21 (2) CONTENT.—The regulations required by

22 paragraph (1) shall—

23 (A) permit an eligible alien (as defined in

24 section 317A of the Immigration and Nation25 ality Act, as added by subsection (a)) and the
†

752

S 2611 ES

1 spouse or child of the eligible alien to reside in

2 a foreign country to work as a physician or

3 other healthcare worker as described in sub4 section (a) of such section 317A for not less

5 than a 12-month period and not more than a

6 24-month period, and shall permit the Sec7 retary to extend such period for an additional

8 period not to exceed 12 months, if the Sec9 retary determines that such country has a con10 tinuing need for such a physician or other

11 healthcare worker;

12 (B) provide for the issuance of documents

13 by the Secretary to such eligible alien, and such

14 spouse or child, if appropriate, to demonstrate

15 that such eligible alien, and such spouse or

16 child, if appropriate, is authorized to reside in

17 such country under such section 317A; and

18 (C) provide for an expedited process

19 through which the Secretary shall review appli20 cations for such an eligible alien to reside in a

21 foreign country pursuant to subsection (a) of

22 such section 317A if the Secretary of State de23 termines a country is a candidate country pur24 suant to subsection (b)(1)(C) of such section

25 317A.
†

753

S 2611 ES

1 (c) TECHNICAL AND CONFORMING AMENDMENTS.—

2 The Immigration and Nationality Act is amended as fol3 lows:

4 (1) Section 101(a)(13)(C)(ii) (8 U.S.C.

5 1101(a)(13)(C)(ii)) is amended by adding at the end

6 ‘‘except in the case of an eligible alien, or the spouse

7 or child of such alien, authorized to be absent from

8 the United States pursuant to section 317A,’’.

9 (2) Section 211(b) (8 U.S.C. 1181(b)) is

10 amended by inserting ‘‘, including an eligible alien

11 authorized to reside in a foreign country pursuant to

12 section 317A and the spouse or child of such eligible

13 alien, if appropriate,’’ after ‘‘101(a)(27)(A),’’.

14 (3) Section 212(a)(7)(A)(i)(I) (8 U.S.C.

15 1182(a)(7)(A)(i)(I)) is amended by inserting ‘‘other

16 than an eligible alien authorized to reside in a for17 eign country pursuant to section 317A and the

18 spouse or child of such eligible alien, if appropriate,’’

19 after ‘‘Act,’’.

20 (4) Section 319(b)(1)(B) (8 U.S.C.

21 1430(b)(1)(B)) is amended by inserting ‘‘an eligible

22 alien who is residing or has resided in a foreign

23 country pursuant to section 317A’’ before ‘‘and’’ at

24 the end.
†

754

S 2611 ES

1 (5) The table of contents is amended by insert2 ing after the item relating to section 317 the fol3 lowing:

‘‘Sec. 317A. Temporary absence of aliens providing healthcare in developing

countries.’’.

4 (d) AUTHORIZATION OF APPROPRIATIONS.—There

5 are authorized to be appropriated to the Bureau of Citi6 zenship and Immigration Services such sums as may be

7 necessary to carry out this section and the amendments

8 made by this section.

9 SEC. 777. ATTESTATION BY HEALTHCARE WORKERS.

10 (a) REQUIREMENT FOR ATTESTATION.—Section

11 212(a)(5) (8 U.S.C. 1182(a)(5)) is amended by adding at

12 the end the following new subparagraph:

13 ‘‘(E) HEALTHCARE WORKERS WITH OTHER

14 OBLIGATIONS.—

15 ‘‘(i) IN GENERAL.—An alien who

16 seeks to enter the United States for the

17 purpose of performing labor as a physician

18 or other healthcare worker is inadmissible

19 unless the alien submits to the Secretary of

20 Homeland Security or the Secretary of

21 State, as appropriate, an attestation that

22 the alien is not seeking to enter the United

23 States for such purpose during any period

24 in which the alien has an outstanding obli-
†

755

S 2611 ES

1 gation to the government of the alien’s

2 country of origin or the alien’s country of

3 residence.

4 ‘‘(ii) OBLIGATION DEFINED.—In this

5 subparagraph, the term ‘obligation’ means

6 an obligation incurred as part of a valid,

7 voluntary individual agreement in which

8 the alien received financial assistance to

9 defray the costs of education or training to

10 qualify as a physician or other healthcare

11 worker in consideration for a commitment

12 to work as a physician or other healthcare

13 worker in the alien’s country of origin or

14 the alien’s country of residence.

15 ‘‘(iii) WAIVER.—The Secretary of

16 Homeland Security may waive a finding of

17 inadmissibility under clause (i) if the Sec18 retary determines that—

19 ‘‘(I) the obligation was incurred

20 by coercion or other improper means;

21 ‘‘(II) the alien and the govern22 ment of the country to which the alien

23 has an outstanding obligation have

24 reached a valid, voluntary agreement,

25 pursuant to which the alien’s obliga-
†

756

S 2611 ES

1 tion has been deemed satisfied, or the

2 alien has shown to the satisfaction of

3 the Secretary that the alien has been

4 unable to reach such an agreement

5 because of coercion or other improper

6 means; or

7 ‘‘(III) the obligation should not

8 be enforced due to other extraordinary

9 circumstances, including undue hard10 ship that would be suffered by the

11 alien in the absence of a waiver.’’.

12 (b) EFFECTIVE DATE AND APPLICATION.—

13 (1) EFFECTIVE DATE.—The amendment made

14 by subsection (a) shall become effective 180 days

15 after the date of the enactment of this Act.

16 (2) APPLICATION BY THE SECRETARY.—The

17 Secretary shall begin to carry out the subparagraph

18 (E) of section 212(a)(5) of the Immigration and Na19 tionality Act (8 U.S.C. 1182(a)(5)), as added by

20 subsection (a), not later than the effective date de21 scribed in paragraph (1), including the requirement

22 for the attestation and the granting of a waiver de23 scribed in such subparagraph, regardless of whether

24 regulations to implement such subparagraph have

25 been promulgated.
†

757

S 2611 ES

1 SEC. 778. PUBLIC ACCESS TO THE STATUE OF LIBERTY.

2 Not later than 60 days after the date of the enact3 ment of this Act, the Secretary of the Interior shall ensure

4 that all persons who satisfy reasonable and appropriate

5 security measures shall have full access to the public areas

6 of the Statue of Liberty, including the crown and the

7 stairs leading thereto.

8 SEC. 779. NATIONAL SECURITY DETERMINATION.

9 Notwithstanding any other provision of this Act, the

10 President shall ensure that no provision of title IV or title

11 VI of this Act, or any amendment made by either such

12 title, is carried out until after the date on which the Presi13 dent makes a determination that the implementation of

14 such title IV and title VI, and the amendments made by

15 either such title, will strengthen the national security of

16 the United States.

17 TITLE VIII—INTERCOUNTRY

18 ADOPTION REFORM

19 SEC. 801. SHORT TITLE.

20 This title may be cited as the ‘‘Intercountry Adoption

21 Reform Act of 2006’’ or the ‘‘ICARE Act’’.

22 SEC. 802. FINDINGS; PURPOSES.

23 (a) FINDINGS.—Congress finds the following:

24 (1) That a child, for the full and harmonious

25 development of his or her personality, should grow
†

758

S 2611 ES

1 up in a family environment, in an atmosphere of

2 happiness, love, and understanding.

3 (2) That intercountry adoption may offer the

4 advantage of a permanent family to a child for

5 whom a suitable family cannot be found in his or her

6 country of origin.

7 (3) There has been a significant growth in

8 intercountry adoptions. In 1990, Americans adopted

9 7,093 children from abroad. In 2004, they adopted

10 23,460 children from abroad.

11 (4) Americans increasingly seek to create or en12 large their families through intercountry adoptions.

13 (5) There are many children worldwide that are

14 without permanent homes.

15 (6) In the interest of children without a perma16 nent family and the United States citizens who are

17 waiting to bring them into their families, reforms

18 are needed in the intercountry adoption process used

19 by United States citizens.

20 (7) Before adoption, each child should have the

21 benefit of measures taken to ensure that inter22 country adoption is in his or her best interest and

23 that prevents the abduction, selling, or trafficking of

24 children.
†

759

S 2611 ES

1 (8) In addition, Congress recognizes that for2 eign-born adopted children do not make the decision

3 whether to immigrate to the United States. They are

4 being chosen by Americans to become part of their

5 immediate families.

6 (9) As such these children should not be classi7 fied as immigrants in the traditional sense. Once

8 fully and finally adopted, they should be treated as

9 children of United States citizens.

10 (10) Since a child who is fully and finally

11 adopted is entitled to the same rights, duties, and

12 responsibilities as a biological child, the law should

13 reflect such equality.

14 (11) Therefore, foreign-born adopted children of

15 United States citizens should be accorded the same

16 procedural treatment as biological children born

17 abroad to a United States citizen.

18 (12) If a United States citizen can confer citi19 zenship to a biological child born abroad, then the

20 same citizen is entitled to confer such citizenship to

21 their legally and fully adopted foreign-born child im22 mediately upon final adoption.

23 (13) If a United States citizen cannot confer

24 citizenship to a biological child born abroad, then

25 such citizen cannot confer citizenship to their legally
†

760

S 2611 ES

1 and fully adopted foreign-born child, except through

2 the naturalization process.

3 (b) PURPOSES.—The purposes of this title are—

4 (1) to ensure the any adoption of a foreign-born

5 child by parents in the United States is carried out

6 in the manner that is in the best interest of the

7 child;

8 (2) to ensure that foreign-born children adopted

9 by United States citizens will be treated identically

10 to a biological child born abroad to the same citizen

11 parent; and

12 (3) to improve the intercountry adoption proc13 ess to make it more citizen friendly and focused on

14 the protection of the child.

15 SEC. 803. DEFINITIONS.

16 In this title:

17 (1) ADOPTABLE CHILD.—The term ‘‘adoptable

18 child’’ has the same meaning given such term in sec19 tion 101(c)(3) of the Immigration and Nationality

20 Act (8 U.S.C. 1101(c)(3)), as added by section

21 824(a) of this Act.

22 (2) AMBASSADOR AT LARGE.—The term ‘‘Am23 bassador at Large’’ means the Ambassador at Large

24 for Intercountry Adoptions appointed to head the

25 Office pursuant to section 811(b).
†

761

S 2611 ES

1 (3) COMPETENT AUTHORITY.—The term ‘‘com2 petent authority’’ means the entity or entities au3 thorized by the law of the child’s country of resi4 dence to engage in permanent placement of children

5 who are no longer in the legal or physical custody

6 of their biological parents.

7 (4) CONVENTION.—The term ‘‘Convention’’

8 means the Convention on Protection of Children and

9 Co-operation in Respect of Intercountry Adoption,

10 done at The Hague on May 29, 1993.

11 (5) FULL AND FINAL ADOPTION.—The term

12 ‘‘full and final adoption’’ means an adoption—

13 (A) that is completed according to the laws

14 of the child’s country of residence or the State

15 law of the parent’s residence;

16 (B) under which a person is granted full

17 and legal custody of the adopted child;

18 (C) that has the force and effect of sev19 ering the child’s legal ties to the child’s biologi20 cal parents;

21 (D) under which the adoptive parents meet

22 the requirements of section 825; and

23 (E) under which the child has been adju24 dicated to be an adoptable child in accordance

25 with section 826.
†

762

S 2611 ES

1 (6) OFFICE.—The term ‘‘Office’’ means the Of2 fice of Intercountry Adoptions established under sec3 tion 811(a).

4 (7) READILY APPROVABLE.—A petition or cer5 tification is ‘‘readily approvable’’ if the documentary

6 support provided along with such petition or certifi7 cation demonstrates that the petitioner satisfies the

8 eligibility requirements and no additional informa9 tion or investigation is necessary.

10 Subtitle A—ADMINISTRATION OF

11 INTERCOUNTRY ADOPTIONS

12 SEC. 811. OFFICE OF INTERCOUNTRY ADOPTIONS.

13 (a) ESTABLISHMENT.—Not later than 180 days after

14 the date of enactment of this Act, there shall be estab15 lished within the Department of State, an Office of Inter16 country Adoptions which shall be headed by the Ambas17 sador at Large for Intercountry Adoptions.

18 (b) AMBASSADOR AT LARGE.—

19 (1) APPOINTMENT.—The Ambassador at Large

20 shall be appointed by the President, by and with the

21 advice and consent of the Senate, from among indi22 viduals who have background, experience, and train23 ing in intercountry adoptions.

24 (2) CONFLICTS OF INTEREST.—The individual

25 appointed to be the Ambassador at Large shall be
†

763

S 2611 ES

1 free from any conflict of interest that could impede

2 such individual’s ability to serve as the Ambassador.

3 (3) AUTHORITY.—The Ambassador at Large

4 shall report directly to the Secretary of State, in

5 consultation with the Assistant Secretary for Con6 sular Affairs.

7 (4) REGULATIONS.—The Ambassador at Large

8 may not issue rules or regulations unless such rules

9 or regulations have been approved by the Secretary

10 of State.

11 (5) DUTIES OF THE AMBASSADOR AT LARGE.—

12 The Ambassador at Large shall have the following

13 responsibilities:

14 (A) IN GENERAL.—The primary respon15 sibilities of the Ambassador at Large shall be—

16 (i) to ensure that any adoption of a

17 foreign-born child by parents in the United

18 States is carried out in the manner that is

19 in the best interest of the child; and

20 (ii) to assist the Secretary of State in

21 fulfilling the responsibilities designated to

22 the central authority under title I of the

23 Intercountry Adoption Act of 2000 (42

24 U.S.C. 14911 et seq.).
†

764

S 2611 ES

1 (B) ADVISORY ROLE.—The Ambassador at

2 Large shall be a principal advisor to the Presi3 dent and the Secretary of State regarding mat4 ters affecting intercountry adoption and the

5 general welfare of children abroad and shall

6 make recommendations regarding—

7 (i) the policies of the United States

8 with respect to the establishment of a sys9 tem of cooperation among the parties to

10 the Convention;

11 (ii) the policies to prevent abandon12 ment, to strengthen families, and to ad13 vance the placement of children in perma14 nent families; and

15 (iii) policies that promote the protec16 tion and well-being of children.

17 (C) DIPLOMATIC REPRESENTATION.—Sub18 ject to the direction of the President and the

19 Secretary of State, the Ambassador at Large

20 may represent the United States in matters and

21 cases relevant to international adoption in—

22 (i) fulfillment of the responsibilities

23 designated to the central authority under

24 title I of the Intercountry Adoption Act of

25 2000 (42 U.S.C. 14911 et seq.);
†

765

S 2611 ES

1 (ii) contacts with foreign governments,

2 intergovernmental organizations, and spe3 cialized agencies of the United Nations and

4 other international organizations of which

5 the United States is a member; and

6 (iii) multilateral conferences and

7 meetings relevant to international adop8 tion.

9 (D) INTERNATIONAL POLICY DEVELOP10 MENT.—The Ambassador at Large shall advise

11 and support the Secretary of State and other

12 relevant Bureaus of the Department of State in

13 the development of sound policy regarding child

14 protection and intercountry adoption.

15 (E) REPORTING RESPONSIBILITIES.—The

16 Ambassador at Large shall have the following

17 reporting responsibilities:

18 (i) IN GENERAL.—The Ambassador at

19 Large shall assist the Secretary of State

20 and other relevant Bureaus in preparing

21 those portions of the Human Rights Re22 ports that relate to the abduction, sale,

23 and trafficking of children.

24 (ii) ANNUAL REPORT ON INTER25 COUNTRY ADOPTION.—Not later than Sep-
†

766

S 2611 ES

1 tember 1 of each year, the Secretary of

2 State shall prepare and submit to Congress

3 an annual report on intercountry adoption.

4 Each annual report shall include—

5 (I) a description of the status of

6 child protection and adoption in each

7 foreign country, including—

8 (aa) trends toward improve9 ment in the welfare and protec10 tion of children and families;

11 (bb) trends in family reunifi12 cation, domestic adoption, and

13 intercountry adoption;

14 (cc) movement toward ratifi15 cation and implementation of the

16 Convention; and

17 (dd) census information on

18 the number of children in or19 phanages, foster homes, and

20 other types of nonpermanent res21 idential care as reported by the

22 foreign country;

23 (II) the number of intercountry

24 adoptions by United States citizens,

25 including the country from which each
†

767

S 2611 ES

1 child emigrated, the State in which

2 each child resides, and the country in

3 which the adoption was finalized;

4 (III) the number of intercountry

5 adoptions involving emigration from

6 the United States, including the coun7 try where each child now resides and

8 the State from which each child emi9 grated;

10 (IV) the number of placements

11 for adoption in the United States that

12 were disrupted, including the country

13 from which the child emigrated, the

14 age of the child, the date of the place15 ment for adoption, the reasons for the

16 disruption, the resolution of the dis17 ruption, the agencies that handled the

18 placement for adoption, and the plans

19 for the child, and in addition, any in20 formation regarding disruption or dis21 solution of adoptions of children from

22 other countries received pursuant to

23 section 422(b)(14) of the Social Secu24 rity Act (42 U.S.C. 622(b)(14));
†

768

S 2611 ES

1 (V) the average time required for

2 completion of an adoption, set forth

3 by the country from which the child

4 emigrated;

5 (VI) the current list of agencies

6 accredited and persons approved

7 under the Intercountry Adoption Act

8 of 2000 (42 U.S.C. 14901 et seq.) to

9 provide adoption services;

10 (VII) the names of the agencies

11 and persons temporarily or perma12 nently debarred under the Inter13 country Adoption Act of 2000 (42

14 U.S.C. 14901 et seq.), and the rea15 sons for the debarment;

16 (VIII) the range of adoption fees

17 involving adoptions by United States

18 citizens and the median of such fees

19 set forth by the country of origin;

20 (IX) the range of fees charged

21 for accreditation of agencies and the

22 approval of persons in the United

23 States engaged in providing adoption

24 services under the Convention; and
†

769

S 2611 ES

1 (X) recommendations of ways the

2 United States might act to improve

3 the welfare and protection of children

4 and families in each foreign country.

5 (c) FUNCTIONS OF OFFICE.—The Office shall have

6 the following 7 functions:

7 (1) APPROVAL OF A FAMILY TO ADOPT.—To

8 approve or disapprove the eligibility of a United

9 States citizen to adopt a child born in a foreign

10 country.

11 (2) CHILD ADJUDICATION.—To investigate and

12 adjudicate the status of a child born in a foreign

13 country to determine whether that child is an adopt14 able child.

15 (3) FAMILY SERVICES.—To provide assistance

16 to United States citizens engaged in the intercountry

17 adoption process in resolving problems with respect

18 to that process and to track intercountry adoption

19 cases so as to ensure that all such adoptions are

20 processed in a timely manner.

21 (4) INTERNATIONAL POLICY DEVELOPMENT.—

22 To advise and support the Ambassador at Large and

23 other relevant Bureaus of the Department of State

24 in the development of sound policy regarding child

25 protection and intercountry adoption.
†

770

S 2611 ES

1 (5) CENTRAL AUTHORITY.—To assist the Sec2 retary of State in carrying out duties of the central

3 authority as defined in section 3 of the Intercountry

4 Adoption Act of 2000 (42 U.S.C. 14902).

5 (6) ENFORCEMENT.—To investigate, either di6 rectly or in cooperation with other appropriate inter7 national, Federal, State, or local entities, impropri8 eties relating to intercountry adoption, including

9 issues of child protection, birth family protection,

10 and consumer fraud.

11 (7) ADMINISTRATION.—To perform administra12 tive functions related to the functions performed

13 under paragraphs (1) through (6), including legal

14 functions and congressional liaison and public affairs

15 functions.

16 (d) ORGANIZATION.—

17 (1) IN GENERAL.—All functions of the Office

18 shall be performed by officers employed in a central

19 office located in Washington, D.C. Within that of20 fice, there shall be 7 divisions corresponding to the

21 7 functions of the Office. The director of each such

22 division shall report directly to the Ambassador at

23 Large.
†

771

S 2611 ES

1 (2) APPROVAL TO ADOPT.—The division re2 sponsible for approving parents to adopt shall be di3 vided into regions of the United States as follows:

4 (A) Northwest.

5 (B) Northeast.

6 (C) Southwest.

7 (D) Southeast.

8 (E) Midwest.

9 (F) West.

10 (3) CHILD ADJUDICATION.—To the extent prac11 ticable, the division responsible for the adjudication

12 of foreign-born children as adoptable shall be divided

13 by world regions which correspond to the world re14 gions used by other divisions within the Department

15 of State.

16 (4) USE OF INTERNATIONAL FIELD OFFI17 CERS.—Nothing in this section shall be construed to

18 prohibit the use of international field officers posted

19 abroad, as necessary, to fulfill the requirements of

20 this Act.

21 (5) COORDINATION.—The Ambassador at

22 Large shall coordinate with appropriate employees of

23 other agencies and departments of the United

24 States, whenever appropriate, in carrying out the

25 duties of the Ambassador.
†

772

S 2611 ES

1 (e) QUALIFICATIONS AND TRAINING.—In addition to

2 meeting the employment requirements of the Department

3 of State, officers employed in any of the 7 divisions of

4 the Office shall undergo extensive and specialized training

5 in the laws and processes of intercountry adoption as well

6 as understanding the cultural, medical, emotional, and so7 cial issues surrounding intercountry adoption and adoptive

8 families. The Ambassador at Large shall, whenever pos9 sible, recruit and hire individuals with background and ex10 perience in intercountry adoptions, taking care to ensure

11 that such individuals do not have any conflicts of interest

12 that might inhibit their ability to serve.

13 (f) USE OF ELECTRONIC DATABASES AND FILING.—

14 To the extent possible, the Office shall make use of cen15 tralized, electronic databases and electronic form filing.

16 SEC. 812. RECOGNITION OF CONVENTION ADOPTIONS IN

17 THE UNITED STATES.

18 Section 505(a)(1) of the Intercountry Adoption Act

19 of 2000 (42 U.S.C. 14901 note) is amended by inserting

20 ‘‘301, 302,’’ after ‘‘205,’’.

21 SEC. 813. TECHNICAL AND CONFORMING AMENDMENT.

22 Section 104 of the Intercountry Adoption Act of 2000

23 (42 U.S.C. 14914) is repealed.
†

773

S 2611 ES

1 SEC. 814. TRANSFER OF FUNCTIONS.

2 (a) IN GENERAL.—Subject to subsection (c), all func3 tions under the immigration laws of the United States

4 with respect to the adoption of foreign-born children by

5 United States citizens and their admission to the United

6 States that have been vested by statute in, or exercised

7 by, the Secretary of Homeland Security immediately prior

8 to the effective date of this Act, are transferred to the

9 Secretary of State on the effective date of this Act and

10 shall be carried out by the Ambassador at Large, under

11 the supervision of the Secretary of State, in accordance

12 with applicable laws and this Act.

13 (b) EXERCISE OF AUTHORITIES.—Except as other14 wise provided by law, the Ambassador at Large may, for

15 purposes of performing any function transferred to the

16 Ambassador at Large under subsection (a), exercise all

17 authorities under any other provision of law that were

18 available with respect to the performance of that function

19 to the official responsible for the performance of the func20 tion immediately before the effective date of the transfer

21 of the function pursuant to this subtitle.

22 (c) LIMITATION ON TRANSFER OF PENDING ADOP23 TIONS.—If an individual has filed a petition with the Im24 migration and Naturalization Service or the Department

25 of Homeland Security with respect to the adoption of a

26 foreign-born child prior to the date of enactment of this
†

774

S 2611 ES

1 Act, the Secretary of Homeland Security shall have the

2 authority to make the final determination on such petition

3 and such petition shall not be transferred to the Office.

4 SEC. 815. TRANSFER OF RESOURCES.

5 Subject to section 1531 of title 31, United States

6 Code, upon the effective date of this Act, there are trans7 ferred to the Ambassador at Large for appropriate alloca8 tion in accordance with this Act, the assets, liabilities, con9 tracts, property, records, and unexpended balance of ap10 propriations, authorizations, allocations, and other funds

11 employed, held, used, arising from, available to, or to be

12 made available to the Department of Homeland Security

13 in connection with the functions transferred pursuant to

14 this subtitle.

15 SEC. 816. INCIDENTAL TRANSFERS.

16 The Ambassador at Large may make such additional

17 incidental dispositions of personnel, assets, liabilities,

18 grants, contracts, property, records, and unexpended bal19 ances of appropriations, authorizations, allocations, and

20 other funds held, used, arising from, available to, or to

21 be made available in connection with such functions, as

22 may be necessary to carry out this subtitle. The Ambas23 sador at Large shall provide for such further measures

24 and dispositions as may be necessary to effectuate the pur25 poses of this subtitle.
†

775

S 2611 ES

1 SEC. 817. SAVINGS PROVISIONS.

2 (a) LEGAL DOCUMENTS.—All orders, determinations,

3 rules, regulations, permits, grants, loans, contracts, agree4 ments, including collective bargaining agreements, certifi5 cates, licenses, and privileges—

6 (1) that have been issued, made, granted, or al7 lowed to become effective by the President, the Am8 bassador at Large, the former Commissioner of the

9 Immigration and Naturalization Service, or the Sec10 retary of Homeland Security, or their delegates, or

11 any other Government official, or by a court of com12 petent jurisdiction, in the performance of any func13 tion that is transferred pursuant to this subtitle; and

14 (2) that are in effect on the effective date of

15 such transfer (or become effective after such date

16 pursuant to their terms as in effect on such effective

17 date);

18 shall continue in effect according to their terms until

19 modified, terminated, superseded, set aside, or revoked in

20 accordance with law by the President, any other author21 ized official, a court of competent jurisdiction, or operation

22 of law, except that any collective bargaining agreement

23 shall remain in effect until the date of termination speci24 fied in the agreement.

25 (b) PROCEEDINGS.—
†

776

S 2611 ES

1 (1) PENDING.—The transfer of functions under

2 section 814 shall not affect any proceeding or any

3 application for any benefit, service, license, permit,

4 certificate, or financial assistance pending on the ef5 fective date of this subtitle before an office whose

6 functions are transferred pursuant to this subtitle,

7 but such proceedings and applications shall be con8 tinued.

9 (2) ORDERS.—Orders shall be issued in such

10 proceedings, appeals shall be taken therefrom, and

11 payments shall be made pursuant to such orders, as

12 if this Act had not been enacted, and orders issued

13 in any such proceeding shall continue in effect until

14 modified, terminated, superseded, or revoked by a

15 duly authorized official, by a court of competent ju16 risdiction, or by operation of law.

17 (3) DISCONTINUANCE OR MODIFICATION.—

18 Nothing in this section shall be considered to pro19 hibit the discontinuance or modification of any such

20 proceeding under the same terms and conditions and

21 to the same extent that such proceeding could have

22 been discontinued or modified if this section had not

23 been enacted.

24 (c) SUITS.—This subtitle shall not affect suits com25 menced before the effective date of this subtitle, and in
†

777

S 2611 ES

1 all such suits, proceeding shall be had, appeals taken, and

2 judgments rendered in the same manner and with the

3 same effect as if this Act had not been enacted.

4 (d) NONABATEMENT OF ACTIONS.—No suit, action,

5 or other proceeding commenced by or against the Depart6 ment of State, the Immigration and Naturalization Serv7 ice, or the Department of Homeland Security, or by or

8 against any individual in the official capacity of such indi9 vidual as an officer or employee in connection with a func10 tion transferred pursuant to this section, shall abate by

11 reason of the enactment of this Act.

12 (e) CONTINUANCE OF SUIT WITH SUBSTITUTION OF

13 PARTIES.—If any Government officer in the official capac14 ity of such officer is party to a suit with respect to a func15 tion of the officer, and pursuant to this subtitle such func16 tion is transferred to any other officer or office, then such

17 suit shall be continued with the other officer or the head

18 of such other office, as applicable, substituted or added

19 as a party.

20 (f) ADMINISTRATIVE PROCEDURE AND JUDICIAL RE21 VIEW.—Except as otherwise provided by this subtitle, any

22 statutory requirements relating to notice, hearings, action

23 upon the record, or administrative or judicial review that

24 apply to any function transferred pursuant to any provi25 sion of this subtitle shall apply to the exercise of such
†

778

S 2611 ES

1 function by the head of the office, and other officers of

2 the office, to which such function is transferred pursuant

3 to such provision.

4 Subtitle B—Reform of United

5 States Laws Governing Inter6 country Adoptions

7 SEC. 821. AUTOMATIC ACQUISITION OF CITIZENSHIP FOR

8 ADOPTED CHILDREN BORN OUTSIDE THE

9 UNITED STATES.

10 (a) AUTOMATIC CITIZENSHIP PROVISIONS.—

11 (1) AMENDMENT OF THE INA.—Section 320 of

12 the Immigration and Nationality Act (8 U.S.C.

13 1431) is amended to read as follows:

14 ‘‘SEC. 320. CONDITIONS FOR AUTOMATIC CITIZENSHIP FOR

15 CHILDREN BORN OUTSIDE THE UNITED

16 STATES.

17 ‘‘(a) IN GENERAL.—A child born outside of the

18 United States automatically becomes a citizen of the

19 United States—

20 ‘‘(1) if the child is not an adopted child—

21 ‘‘(A) at least 1 parent of the child is a cit22 izen of the United States, whether by birth or

23 naturalization, who has been physically present

24 (as determined under subsection (b)) in the

25 United States or its outlying possessions for a
†

779

S 2611 ES

1 period or periods totaling not less than 5 years,

2 at least 2 of which were after attaining the age

3 of 14 years; and

4 ‘‘(B) the child is under the age of 18

5 years; or

6 ‘‘(2) if the child is an adopted child, on the date

7 of the full and final adoption of the child—

8 ‘‘(A) at least 1 parent of the child is a cit9 izen of the United States, whether by birth or

10 naturalization, who has been physically present

11 (as determined under subsection (b)) in the

12 United States or its outlying possessions for a

13 period or periods totaling not less than 5 years,

14 at least 2 of which were after attaining the age

15 of 14 years;

16 ‘‘(B) the child is an adoptable child;

17 ‘‘(C) the child is the beneficiary of a full

18 and final adoption decree entered by a foreign

19 government or a court in the United States;

20 and

21 ‘‘(D) the child is under the age of 16

22 years.

23 ‘‘(b) PHYSICAL PRESENCE.—For the purposes of

24 subsection (a)(2)(A), the requirement for physical pres-
†

780

S 2611 ES

1 ence in the United States or its outlying possessions may

2 be satisfied by the following:

3 ‘‘(1) Any periods of honorable service in the

4 Armed Forces of the United States.

5 ‘‘(2) Any periods of employment with the

6 United States Government or with an international

7 organization as that term is defined in section 1 of

8 the International Organizations Immunities Act (22

9 U.S.C. 288) by such citizen parent.

10 ‘‘(3) Any periods during which such citizen par11 ent is physically present outside the United States or

12 its outlying possessions as the dependent unmarried

13 son or daughter and a member of the household of

14 a person—

15 ‘‘(A) honorably serving with the Armed

16 Forces of the United States; or

17 ‘‘(B) employed by the United States Gov18 ernment or an international organization as de19 fined in section 1 of the International Organiza20 tions Immunities Act (22 U.S.C. 288).

21 ‘‘(c) FULL AND FINAL ADOPTION.—In this section,

22 the term ‘full and final adoption’ means an adoption—

23 ‘‘(1) that is completed under the laws of the

24 child’s country of residence or the State law of the

25 parent’s residence;
†

781

S 2611 ES

1 ‘‘(2) under which a person is granted full and

2 legal custody of the adopted child;

3 ‘‘(3) that has the force and effect of severing

4 the child’s legal ties to the child’s biological parents;

5 ‘‘(4) under which the adoptive parents meet the

6 requirements of section 825 of the Intercountry

7 Adoption Reform Act of 2006; and

8 ‘‘(5) under which the child has been adjudicated

9 to be an adoptable child in accordance with section

10 826 of the Intercountry Adoption Reform Act of

11 2006.’’.

12 (b) CONFORMING AMENDMENT.—The table of con13 tents in the first section of the Immigration and Nation14 ality Act (66 Stat. 163) is amended by striking the item

15 relating to section 320 and inserting the following:

‘‘Sec. 320. Conditions for automatic citizenship for children born outside the

United States.’’.

16 (c) EFFECTIVE DATE.—This section shall take effect

17 as if enacted on June 27, 1952.

18 SEC. 822. REVISED PROCEDURES.

19 Notwithstanding any other provision of law, the fol20 lowing requirements shall apply with respect to the adop21 tion of foreign born children by United States citizens:

22 (1) Upon completion of a full and final adop23 tion, the Secretary shall issue a United States pass24 port and a Consular Report of Birth for a child who
†

782

S 2611 ES

1 satisfies the requirements of section 320(a)(2) of the

2 Immigration and Nationality Act (8 U.S.C.

3 1431(a)(2)), as amended by section 821 of this Act,

4 upon application by a United States citizen parent.

5 (2) An adopted child described in paragraph (1)

6 shall not require the issuance of a visa for travel and

7 admission to the United States but shall be admitted

8 to the United States upon presentation of a valid,

9 unexpired United States passport.

10 (3) No affidavit of support under section 213A

11 of the Immigration and Nationality Act (8 U.S.C.

12 1183a) shall be required in the case of any adopt13 able child.

14 (4) The Secretary of State, acting through the

15 Ambassador at Large, shall require that agencies

16 provide prospective adoptive parents an opportunity

17 to conduct an independent medical exam and a copy

18 of any medical records of the child known to exist

19 (to the greatest extent practicable, these documents

20 shall include an English translation) on a date that

21 is not later than the earlier of the date that is 2

22 weeks before the adoption, or the date on which pro23 spective adoptive parents travel to such a foreign

24 country to complete all procedures in such country

25 relating to adoption.
†

783

S 2611 ES

1 (5) The Secretary of State, acting through the

2 Ambassador at Large, shall take necessary measures

3 to ensure that all prospective adoptive parents

4 adopting internationally are provided with training

5 that includes counseling and guidance for the pur6 pose of promoting a successful intercountry adoption

7 before such parents travel to adopt the child or the

8 child is placed with such parents for adoption.

9 (6) The Secretary of State, acting through the

10 Ambassador at Large, shall take necessary measures

11 to ensure that—

12 (A) prospective adoptive parents are given

13 full disclosure of all direct and indirect costs of

14 intercountry adoption before the parents are

15 matched with a child for adoption;

16 (B) fees charged in relation to the inter17 country adoption be on a fee-for-service basis

18 not on a contingent fee basis; and

19 (C) that the transmission of fees between

20 the adoption agency, the country of origin, and

21 the prospective adoptive parents is carried out

22 in a transparent and efficient manner.

23 (7) The Secretary of State, acting through the

24 Ambassador at Large, shall take all measures nec25 essary to ensure that all documents provided to a
†

784

S 2611 ES

1 country of origin on behalf of a prospective adoptive

2 parent are truthful and accurate.

3 SEC. 823. NONIMMIGRANT VISAS FOR CHILDREN TRAV4 ELING TO THE UNITED STATES TO BE ADOPT5 ED BY A UNITED STATES CITIZEN.

6 (a) NONIMMIGRANT CLASSIFICATION.—

7 (1) IN GENERAL.—Section 101(a)(15) of the

8 Immigration and Nationality Act (8 U.S.C.

9 1101(a)(15)) is amended by adding at the end the

10 following:

11 ‘‘(W) an adoptable child who is coming into the

12 United States for adoption by a United States cit13 izen and a spouse jointly or by an unmarried United

14 States citizen at least 25 years of age, who has been

15 approved to adopt by the Office of International

16 Adoption of the Department of State.’’.

17 (2) TECHNICAL AND CONFORMING AMEND18 MENTS.—Such section 101(a)(15) is further

19 amended—

20 (A) by striking ‘‘or’’ at the end of subpara21 graph (U); and

22 (B) by striking the period at the end of

23 subparagraph (V) and inserting ‘‘; or’’.

24 (b) TERMINATION OF PERIOD OF AUTHORIZED AD25 MISSION.—Section 214 of the Immigration and Nation-
†

785

S 2611 ES

1 ality Act (8 U.S.C. 1184) is amended by adding at the

2 end the following:

3 ‘‘(s) In the case of a nonimmigrant described in sec4 tion 101(a)(15)(W), the period of authorized admission

5 shall terminate on the earlier of—

6 ‘‘(1) the date on which the adoption of the non7 immigrant is completed by the courts of the State

8 where the parents reside; or

9 ‘‘(2) the date that is 4 years after the date of

10 admission of the nonimmigrant into the United

11 States, unless a petitioner is able to show cause as

12 to why the adoption could not be completed prior to

13 such date and the Secretary of State extends such

14 period for the period necessary to complete the adop15 tion.’’.

16 (c) TEMPORARY TREATMENT AS LEGAL PERMANENT

17 RESIDENT.—Notwithstanding any other law, all benefits

18 and protections that apply to a legal permanent resident

19 shall apply to a nonimmigrant described in section

20 101(a)(15)(W) of the Immigration and Nationality Act,

21 as added by subsection (a), pending a full and final adop22 tion.

23 (d) EXCEPTION FROM IMMUNIZATION REQUIREMENT

24 FOR CERTAIN ADOPTED CHILDREN.—Section
†

786

S 2611 ES

1 212(a)(1)(C) of the Immigration and Nationality Act (8

2 U.S.C. 1182(a)(1)(C)) is amended—

3 (1) in the heading by striking ‘‘10 YEARS’’ and

4 inserting ‘‘18 YEARS’’; and

5 (2) in clause (i), by striking ‘‘10 years’’ and in6 serting ‘‘18 years’’.

7 (e) REGULATIONS.—Not later than 90 days after the

8 date of enactment of this Act, the Secretary of State shall

9 prescribe such regulations as may be necessary to carry

10 out this section.

11 SEC. 824. DEFINITION OF ADOPTABLE CHILD.

12 (a) IN GENERAL.—Section 101(c) of the Immigration

13 and Nationality Act (8 U.S.C. 1101(c)) is amended by

14 adding at the end the following:

15 ‘‘(3) The term ‘adoptable child’ means an unmarried

16 person under the age of 18—

17 ‘‘(A)(i) whose biological parents (or parent, in

18 the case of a child who has one sole or surviving

19 parent) or other persons or institutions that retain

20 legal custody of the child—

21 ‘‘(I) have freely given their written irrev22 ocable consent to the termination of their legal

23 relationship with the child, and to the child’s

24 emigration and adoption and that such consent

25 has not been induced by payment or compensa-
†

787

S 2611 ES

1 tion of any kind and has not been given prior

2 to the birth of the child;

3 ‘‘(II) are unable to provide proper care for

4 the child, as determined by the competent au5 thority of the child’s residence; or

6 ‘‘(III) have voluntarily relinquished the

7 child to the competent authorities pursuant to

8 the law of the child’s residence; or

9 ‘‘(ii) who, as determined by the competent au10 thority of the child’s residence—

11 ‘‘(I) has been abandoned or deserted by

12 their biological parent, parents, or legal guard13 ians; or

14 ‘‘(II) has been orphaned due to the death

15 or disappearance of their biological parent, par16 ents, or legal guardians;

17 ‘‘(B) with respect to whom the Secretary of

18 State is satisfied that the proper care will be fur19 nished the child if admitted to the United States;

20 ‘‘(C) with respect to whom the Secretary of

21 State is satisfied that the purpose of the adoption is

22 to form a bona fide parent-child relationship and

23 that the parent-child relationship of the child and

24 the biological parents has been terminated (and in

25 carrying out both obligations under this subpara-
†

788

S 2611 ES

1 graph the Secretary of State, in consultation with

2 the Secretary of Homeland Security, may consider

3 whether there is a petition pending to confer immi4 grant status on one or both of the biological par5 ents);

6 ‘‘(D) with respect to whom the Secretary of

7 State, is satisfied that there has been no induce8 ment, financial or otherwise, offered to obtain the

9 consent nor was it given before the birth of the

10 child;

11 ‘‘(E) with respect to whom the Secretary of

12 State, in consultation with the Secretary of Home13 land Security, is satisfied that the person is not a

14 security risk; and

15 ‘‘(F) whose eligibility for adoption and emigra16 tion to the United States has been certified by the

17 competent authority of the country of the child’s

18 place of birth or residence.’’.

19 (b) CONFORMING AMENDMENT.—Section 204(d) of

20 the Immigration and Nationality Act (8 U.S.C. 1154(d))

21 is amended by inserting ‘‘and an adoptable child as de22 fined in section 101(c)(3)’’ before ‘‘unless a valid home23 study’’.
†

789

S 2611 ES

1 SEC. 825. APPROVAL TO ADOPT.

2 (a) IN GENERAL.—Prior to the issuance of a visa

3 under section 101(a)(15)(W) of the Immigration and Na4 tionality Act, as added by section 823(a) of this Act, or

5 the issuance of a full and final adoption decree, the United

6 States citizen adoptive parent shall have approved by the

7 Office a petition to adopt. Such petition shall be subject

8 to the same terms and conditions as are applicable to peti9 tions for classification under section 204.3 of title 8 of

10 the Code of Federal Regulations, as in effect on the day

11 before the date of enactment of this Act.

12 (b) EXPIRATION OF APPROVAL.—Approval to adopt

13 under this Act is valid for 24 months from the date of

14 approval. Nothing in this section may prevent the Sec15 retary of Homeland Security from periodically updating

16 the fingerprints of an individual who has filed a petition

17 for adoption.

18 (c) EXPEDITED REAPPROVAL PROCESS OF FAMILIES

19 PREVIOUSLY APPROVED TO ADOPT.—The Secretary of

20 State shall prescribe such regulations as may be necessary

21 to provide for an expedited and streamlined process for

22 families who have been previously approved to adopt and

23 whose approval has expired, so long as not more than 4

24 years have lapsed since the original application.

25 (d) DENIAL OF PETITION.—
†

790

S 2611 ES

1 (1) NOTICE OF INTENT.—If the officer adjudi2 cating the petition to adopt finds that it is not read3 ily approvable, the officer shall notify the petitioner,

4 in writing, of the officer’s intent to deny the peti5 tion. Such notice shall include the specific reasons

6 why the petition is not readily approvable.

7 (2) PETITIONER’S RIGHT TO RESPOND.—Upon

8 receiving a notice of intent to deny, the petitioner

9 has 30 days to respond to such notice.

10 (3) DECISION.—Within 30 days of receipt of

11 the petitioner’s response the Office must reach a

12 final decision regarding the eligibility of the peti13 tioner to adopt. Notice of a formal decision must be

14 delivered in writing.

15 (4) RIGHT TO AN APPEAL.—Unfavorable deci16 sions may be appealed to the Department of State

17 and, after the exhaustion of the appropriate appeals

18 process of the Department, to a United States dis19 trict court.

20 (5) REGULATIONS REGARDING APPEALS.—Not

21 later than 6 months after the date of enactment of

22 this Act, the Secretary of State shall promulgate for23 mal regulations regarding the process for appealing

24 the denial of a petition.
†

791

S 2611 ES

1 SEC. 826. ADJUDICATION OF CHILD STATUS.

2 (a) IN GENERAL.—Prior to the issuance of a full and

3 final adoption decree or a visa under section

4 101(a)(15)(W) of the Immigration and Nationality Act,

5 as added by section 823(a) of this Act—

6 (1) the Ambassador at Large shall obtain from

7 the competent authority of the country of the child’s

8 residence a certification, together with documentary

9 support, that the child sought to be adopted meets

10 the definition of an adoptable child; and

11 (2) not later than 15 days after the date of the

12 receipt of the certification referred to in paragraph

13 (1), the Secretary of State shall make a final deter14 mination on whether the certification and the docu15 mentary support are sufficient to meet the require16 ments of this section or whether additional investiga17 tion or information is required.

18 (b) PROCESS FOR DETERMINATION.—

19 (1) IN GENERAL.—The Ambassador at Large

20 shall work with the competent authorities of the

21 child’s country of residence to establish a uniform,

22 transparent, and efficient process for the exchange

23 and approval of the certification and documentary

24 support required under subsection (a).

25 (2) NOTICE OF INTENT.—If the Secretary of

26 State determines that a certification submitted by
†

792

S 2611 ES

1 the competent authority of the child’s country of ori2 gin is not readily approvable, the Ambassador at

3 Large shall—

4 (A) notify the competent authority and the

5 prospective adoptive parents, in writing, of the

6 specific reasons why the certification is not suf7 ficient; and

8 (B) provide the competent authority and

9 the prospective adoptive parents the oppor10 tunity to address the stated insufficiencies.

11 (3) PETITIONERS RIGHT TO RESPOND.—Upon

12 receiving a notice of intent to find that a certifi13 cation is not readily approvable, the prospective

14 adoptive parents shall have 30 days to respond to

15 such notice.

16 (4) DECISION.—Not later than 30 days after

17 the date of receipt of a response submitted under

18 paragraph (3), the Secretary of State shall reach a

19 final decision regarding the child’s eligibility as an

20 adoptable child. Notice of such decision must be in

21 writing.

22 (5) RIGHT TO AN APPEAL.—Unfavorable deci23 sions on a certification may be appealed through the

24 appropriate process of the Department of State and,
†

793

S 2611 ES

1 after the exhaustion of such process, to a United

2 States district court.

3 SEC. 827. FUNDS.

4 The Secretary of State shall provide the Ambassador

5 at Large with such funds as may be necessary for—

6 (1) the hiring of staff for the Office;

7 (2) investigations conducted by such staff; and

8 (3) travel and other expenses necessary to carry

9 out this title.

10 Subtitle C—Enforcement

11 SEC. 831. CIVIL PENALTIES AND ENFORCEMENT.

12 (a) CIVIL PENALTIES.—A person shall be subject, in

13 addition to any other penalty that may be prescribed by

14 law, to a civil money penalty of not more than $50,000

15 for a first violation, and not more than $100,000 for each

16 succeeding violation if such person—

17 (1) violates a provision of this title or an

18 amendment made by this title;

19 (2) makes a false or fraudulent statement, or

20 misrepresentation, with respect to a material fact, or

21 offers, gives, solicits, or accepts inducement by way

22 of compensation, intended to influence or affect in

23 the United States or a foreign country—

24 (A) a decision for an approval under title

25 II;
†

794

S 2611 ES

1 (B) the relinquishment of parental rights

2 or the giving of parental consent relating to the

3 adoption of a child; or

4 (C) a decision or action of any entity per5 forming a central authority function; or

6 (3) engages another person as an agent, wheth7 er in the United States or in a foreign country, who

8 in the course of that agency takes any of the actions

9 described in paragraph (1) or (2).

10 (b) CIVIL ENFORCEMENT.—

11 (1) AUTHORITY OF ATTORNEY GENERAL.—The

12 Attorney General may bring a civil action to enforce

13 subsection (a) against any person in any United

14 States district court.

15 (2) FACTORS TO BE CONSIDERED IN IMPOSING

16 PENALTIES.—In imposing penalties the court shall

17 consider the gravity of the violation, the degree of

18 culpability of the defendant, and any history of prior

19 violations by the defendant.

20 SEC. 832. CRIMINAL PENALTIES.

21 Whoever knowingly and willfully commits a violation

22 described in paragraph (1) or (2) of section 831(a) shall
†

795

S 2611 ES

1 be subject to a fine of not more than $250,000, imprison2 ment for not more than 5 years, or both.

Passed the Senate May 25, 2006.

Attest:

Secretary.
109TH CONGRESS

2D SESSION S. 2611

AN ACT

To provide for comprehensive immigration reform

and for other purposes.