I 

111TH CONGRESS 

1ST SESSION H. R. 4321 

To provide for comprehensive immigration reform, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

DECEMBER 15, 2009 

Mr. ORTIZ (for himself, Mr. CONYERS, Mr. SERRANO, Mr. RANGEL, Mr. PASTOR of Arizona, Mr. STARK, Mr. GUTIERREZ, Mr. WAXMAN, Mr. BECERRA, Mr. FRANK of Massachusetts, Ms. ROYBAL-ALLARD, Mr. BERMAN, 

Ms. VELA ́ZQUEZ, Mrs. CHRISTENSEN, Mr. HINOJOSA, Mr. TOWNS, Mr. 

REYES, Mr. LEWIS of Georgia, Mr. BACA, Mr. PALLONE, Mr. GONZALEZ, 

Mr. ANDREWS, Mrs. NAPOLITANO, Mr. MCDERMOTT, Mr. GRIJALVA, Mr. 

ENGEL, Mr. CUELLAR, Mr. FALEOMAVAEGA, Mr. SALAZAR, Mr. NEAL of 

Massachusetts, Mr. SIRES, Mr. ABERCROMBIE, Mr. LUJA ́N, Ms. NORTON, 

Mr. PIERLUISI, Mr. MORAN of Virginia, Mr. SABLAN, Mr. NADLER of 

New York, Mr. OLVER, Ms. WATERS, Ms. CORRINE BROWN of Florida, 

Mr. FARR, Mr. FILNER, Mr. GENE GREEN of Texas, Mr. HASTINGS of 

Florida, Ms. EDDIE BERNICE JOHNSON of Texas, Mrs. MALONEY, Mr. 

RUSH, Mr. SCOTT of Virginia, Ms. WOOLSEY, Mr. BLUMENAUER, Mr. 

FATTAH, Mr. JACKSON of Illinois, Ms. JACKSON-LEE of Texas, Mrs. 

CAPPS, Mr. DAVIS of Illinois, Ms. DEGETTE, Ms. KILPATRICK of Michigan, Mr. KUCINICH, Ms. LEE of California, Mr. MCGOVERN, Mr. MEEKS

of New York, Ms. SCHAKOWSKY, Ms. BERKLEY, Mr. CAPUANO, Mr. 

CROWLEY, Mr. WEINER, Mr. CLAY, Mr. HONDA, Mr. ISRAEL, Ms. WATSON, Ms. BORDALLO, Mr. MEEK of Florida, Mr. CLEAVER, Mr. AL

GREEN of Texas, Ms. MATSUI, Ms. MOORE of Wisconsin, Mr. CARSON

of Indiana, Ms. CLARKE, Ms. EDWARDS of Maryland, Mr. ELLISON, Ms. 

FUDGE, Ms. HIRONO, Mr. JOHNSON of Georgia, Mr. PERLMUTTER, Ms. 

RICHARDSON, Mr. WELCH, Ms. CHU, Mr. HEINRICH, Ms. PINGREE of 

Maine, Mr. POLIS of Colorado, and Mr. QUIGLEY) introduced the following bill; which was referred to the Committee on the Judiciary, and 

in addition to the Committees on Homeland Security, Armed Services, 

Foreign Affairs, Natural Resources, Ways and Means, Education and 

Labor, Oversight and Government Reform, and House Administration, 

for a period to be subsequently determined by the Speaker, in each case 

for consideration of such provisions as fall within the jurisdiction of the 

committee concerned 


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A BILL 

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 for America’s Secu6 rity and Prosperity Act of 2009’’, the ‘‘Comprehensive Im7 migration Reform ASAP Act of 2009’’, or as the ‘‘CIR 

8 ASAP Act of 2009’’. 

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

10 this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. Findings. 

Sec. 3. Reference to the Immigration and Nationality Act. 

Sec. 4. Definitions. 

Sec. 5. Severability. 

TITLE I—BORDER SECURITY AND ENFORCEMENT 

Sec. 101. Sense of Congress. 

Subtitle A—Border Security 

Sec. 111. National Strategy for Border Security. 

Sec. 112. Increase in number of Customs and Border Protection Officers. 

Sec. 113. Improving ports of entry for border security and other purposes. 

Sec. 114. Inventory of personnel. 

Sec. 115. Standards of professional conduct. 

Sec. 116. Inventory of assets. 

Sec. 117. Customs border patrol and border protection assets. 

Sec. 118. Technological assets. 

Sec. 119. Secure communication. 

Sec. 120. Surveillance plan. 

Sec. 121. Surveillance technologies programs. 

Sec. 122. Border security searches of electronic devices. 

Sec. 123. Border relief grant program. 

Sec. 124. Northern and Southern border drug prosecution initiative. 

Sec. 125. Operation Streamline prosecution initiative. 


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Sec. 126. Project Gunrunner. 

Sec. 127. Operation Armas Cruzadas. 

Sec. 128. Combating human smuggling. 

Sec. 129. Report on deaths and strategy study. 

Sec. 130. United States-Mexico Border Enforcement Commission. 

Sec. 131. Prohibition on military involvement in nonemergency border enforcement. 

Sec. 132. Definitions. 

Sec. 133. Border protection strategy. 

Sec. 134. Actions to further secure operational control of the international land 

borders of the United States. 

Sec. 135. Borderlands monitoring and mitigation. 

Sec. 136. Border Communities Liaison Office. 

Sec. 137. Office of Civil Rights and Civil Liberties and Office of Inspector General. 

Sec. 138. Improving ports of entry for border security and other purposes. 

Sec. 139. Ports of entry. 

Sec. 140. Ports of entry infrastructure and operations assessment study. 

Sec. 141. National Land Border Ports of Entry Security Plan. 

Sec. 142. Ports of entry technology demonstration program. 

Sec. 143. Reports on improving the exchange of information on North American security. 

Sec. 144. Southern Border Security Task Force. 

Sec. 145. Cooperation with the Government of Mexico. 

Sec. 146. Enhanced international cooperation. 

Sec. 147. Expansion of commerce security programs. 

Sec. 148. Authorization of appropriations. 

Subtitle B—Detention 

Sec. 151. Definitions. 

Sec. 152. Detention conditions. 

Sec. 153. Specific detention requirements for short-term detention facilities. 

Sec. 154. Rulemaking and enforcement. 

Sec. 155. Immigration Detention Commission. 

Sec. 156. Death in custody reporting requirement. 

Sec. 157. Protection of community-based organizations, faith-based organizations and other institutions. 

Sec. 158. Apprehension procedures for immigration-related enforcement activities. 

Sec. 159. Protections against unlawful detentions of United States citizens. 

Sec. 160. Basic protections for vulnerable populations. 

Sec. 161. Report on protections for vulnerable populations impacted by immigration enforcement activities. 

Sec. 162. Family Detention and Unity Protections. 

Sec. 163. Apprehension procedures for families and parents. 

Sec. 164. Child welfare services for children separated from parents detained or 

removed from the United States for immigration violations. 

Sec. 165. Vulnerable population and child welfare training for immigration enforcement officers. 

Sec. 166. Access for parents, legal guardians, and, primary caregiver relatives. 

Sec. 167. Enhanced protections for vulnerable unaccompanied alien children 

and female detainees. 

Sec. 168. Preventing unnecessary detention of refugees. 

Sec. 169. Reports on protections from unlawful detention. 


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Sec. 170. Rulemaking. 

Subtitle C—Enforcement 

Sec. 181. Labor enforcement. 

Sec. 182. Mandatory address reporting requirements. 

Sec. 183. Preemption of State and local law. 

Sec. 184. Delegation of immigration authority. 

Sec. 185. Immigration and Customs Enforcement Ombudsman. 

Sec. 186. Eliminating arbitrary bar to asylum. 

Sec. 187. Restoration of judicial review. 

TITLE II—EMPLOYMENT VERIFICATION 

Sec. 201. Employment verification. 

Sec. 202. Parity with Civil Rights Act of 1964. 

Sec. 203. Amendments to the Social Security Act. 

TITLE III—VISA REFORMS 

Sec. 301. Elimination of existing backlogs. 

Sec. 302. Reclassification of spouses and minor children of legal permanent 

residents as immediate relatives. 

Sec. 303. Country limits. 

Sec. 304. Promoting family unity. 

Sec. 305. Surviving relatives. 

Sec. 306. Extension of waiver authority. 

Sec. 307. Discretionary waiver for long-term lawful permanent residents. 

Sec. 308. Continuous presence. 

Sec. 309. Bar on the removal of certain refugees, parolees or asylees. 

Sec. 310. Exemption from immigrant visa limit for certain veterans who are natives of Philippines. 

Sec. 311. Fiance ́e or fiance ́ child status protection. 

Sec. 312. Equal treatment for all stepchildren. 

Sec. 313. Sons and daughters of Filipino World War II veterans. 

Sec. 314. Determinations under the Haitian Refugee Immigration Fairness Act 

of 1998. 

Sec. 315. Discretionary authority. 

Sec. 316. Affidavit of support. 

Sec. 317. Visa to prevent unauthorized migration. 

Sec. 318. Adjustment of status. 

Sec. 319. Rulemaking. 

Sec. 320. United States-educated immigrants. 

Sec. 321. Retaining workers subject to green card backlog. 

Sec. 322. Return of talent program. 

TITLE IV—EARNED LEGALIZATION OF UNDOCUMENTED 

INDIVIDUALS 

Subtitle A—Conditional Nonimmigrants 

Sec. 401. Conditional nonimmigrants. 

Sec. 402. Adjustment of status for conditional nonimmigrants. 

Sec. 403. Administrative and judicial review. 

Sec. 404. Mandatory disclosure of information. 

Sec. 405. Penalties for false statements in applications. 

Sec. 406. Aliens not subject to direct numerical limitations. 


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Sec. 407. Employer protections. 

Sec. 408. Limitations on eligibility. 

Sec. 409. Rulemaking. 

Sec. 410. Correction of Social Security records. 

Sec. 411. Restoration of State option to determine residency for purposes of 

higher education benefits. 

Sec. 412. Authorization of appropriations. 

Subtitle B—Agricultural Job Opportunities, Benefits, and Security 

CHAPTER 1—TITLE AND DEFINITIONS

Sec. 421. Short title. 

Sec. 422. Definitions. 

CHAPTER 2—PILOT PROGRAM FOR EARNED STATUS ADJUSTMENT OF

AGRICULTURAL WORKERS

SUBCHAPTER A—BLUE CARD STATUS

Sec. 431. Requirements for blue card status. 

Sec. 432. Treatment of aliens granted blue card status. 

Sec. 433. Adjustment to permanent residence. 

Sec. 434. Applications. 

Sec. 435. Waiver of numerical limitations and certain grounds for inadmissibility. 

Sec. 436. Administrative and judicial review. 

Sec. 437. Use of information. 

Sec. 438. Regulations, effective date, authorization of appropriations. 

SUBCHAPTER B—CORRECTION OF SOCIAL SECURITY RECORDS

Sec. 441. Correction of Social Security records. 

CHAPTER 3—REFORM OF H–2A WORKER PROGRAM

Sec. 451. Amendments to the Immigration and Nationality Act. 

CHAPTER 4—MISCELLANEOUS PROVISIONS

Sec. 461. Determination and use of user fees. 

Sec. 462. Regulations. 

Sec. 463. Reports to Congress. 

Sec. 464. Effective date. 

TITLE V—STRENGTHENING THE U.S. ECONOMY AND 

WORKFORCE 

Subtitle A—Immigration and Labor 

CHAPTER 1—IMMIGRATION AND LABOR MARKETS

Sec. 501. Commission on Immigration and Labor Markets. 

Sec. 502. Security and prosperity account. 

Sec. 503. American recruit and match system. 

CHAPTER 2—PROTECTION OF WORKERS RECRUITED ABROAD

Sec. 511. Protections for workers recruited abroad. 


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Sec. 512. Enforcement provisions. 

Sec. 513. Procedures in addition to other rights of employees. 

Sec. 514. Authority to prescribe regulations. 

Sec. 515. Definitions. 

CHAPTER 3—TECHNICAL CORRECTION

Sec. 521. Technical correction. 

Subtitle B—Reforms of Certain Classes of Employment-based Visas 

CHAPTER 1—H–1B VISA FRAUD AND ABUSE PROTECTIONS

SUBCHAPTER A—H–1B EMPLOYER APPLICATION REQUIREMENTS

Sec. 531. Modification of application requirements. 

Sec. 532. New application requirements. 

Sec. 533. Application review requirements. 

SUBCHAPTER B—INVESTIGATION AND DISPOSITION OF COMPLAINTS AGAINST

H–1B

Sec. 541. General modification of procedures for investigation and disposition. 

Sec. 542. Investigation, working conditions, and penalties. 

Sec. 543. Waiver requirements. 

Sec. 544. Initiation of investigations. 

Sec. 545. Information sharing. 

Sec. 546. Conforming amendment. 

SUBCHAPTER C—OTHER H–1B PROVISIONS

Sec. 551. Posting available H–1B positions through the Department of Labor. 

Sec. 552. H–1B government authority and requirements. 

Sec. 553. Additional Department of Labor employees. 

CHAPTER 2—L–1 NONIMMIGRANTS

Sec. 561. Prohibition on outplacement of L–1 nonimmigrants. 

Sec. 562. L–1 employer petition requirements for employment at new offices. 

Sec. 563. Cooperation with Secretary of State. 

Sec. 564. Investigation and disposition of complaints against L–1 employers. 

Sec. 565. Wage rate and working conditions for L–1 nonimmigrant. 

Sec. 566. Penalties. 

Sec. 567. Prohibition on retaliation against L–1 nonimmigrants. 

Sec. 568. Technical amendments. 

Sec. 569. Reports on L–1 nonimmigrants. 

Sec. 570. Application. 

Sec. 571. Report on L–1 blanket petition process. 

Sec. 572. Requirements for information for H–1B and L–1 nonimmigrants. 

CHAPTER 3—PROTECTION OF H–2B NONIMMIGRANTS

Sec. 581. Enforcement of federal labor laws relating to H–2B nonagricultural 

guest workers. 

Sec. 582. Recruitment of United States workers. 

Sec. 583. Prevailing wages for United States workers and H–2B workers. 

Sec. 584. Certification requirement. 

Sec. 585. Protections for workers. 


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Sec. 586. Petitions by employers that have signed labor agreements with unions 

that operate hiring halls. 

Sec. 587. H–2B nonimmigrant labor certification application fees. 

CHAPTER 4—ADJUSTMENTS TO THE EB–5 VISA PROGRAM

Sec. 591. Permanent reauthorization of EB–5 regional center program; application fee. 

Sec. 592. Premium processing fee for EB–5 immigrant investors. 

Sec. 593. Concurrent filing of EB–5 petitions and applications for adjustment 

of status. 

Sec. 594. Improved set-aside for targeted employment areas. 

Sec. 595. Set-aside of visas for regional center program. 

Sec. 596. Extension. 

Sec. 597. Study. 

Sec. 598. Full-time equivalents. 

Sec. 599. Eligibility for adjustment of status. 

Sec. 599A. Expansion of EB–5 eligibility to include qualified immigrants who 

complete investment agreements. 

CHAPTER 5—EFFECTIVE DATE

Sec. 599B. Application. 

TITLE VI—INTEGRATION OF NEW AMERICANS 

Subtitle A—Citizenship Promotion 

Sec. 601. Immigration service fees. 

Sec. 602. Administration of tests for naturalization; fulfillment by elderly persons of requirement for naturalization relating to knowledge of 

english language. 

Sec. 603. Voluntary electronic filing of applications. 

Sec. 604. Timely background checks. 

Sec. 605. National citizenship promotion program. 

Sec. 606. Effective date. 

Subtitle B—Miscellaneous 

Sec. 611. Grants to support public education and community training. 

Sec. 612. Grant program to assist applicants for naturalization. 

Sec. 613. Naturalization for certain U.S. high school graduates. 

Sec. 614. Family integration. 

Sec. 615. Consideration for domestic resettlement of refugees. 

Sec. 616. Credits for teachers of English language learners. 

Sec. 617. Credits for employer-provided adult english literacy and basic education programs. 

Sec. 618. Grants to States to form New American Councils. 

Sec. 619. Independence Day Ceremonies for oaths of allegiance. 

1 SEC. 2. FINDINGS. 

2 Congress makes the following findings: 


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1 (1) Federal immigration laws must uphold 

2 America’s long history of being a Nation of immi3 grants from every continent in the world, and reaf4 firm our Nation’s commitment to strong and united 

5 families, civil rights, economic opportunity and di6 versity. 

7 (2) The Government of the United States 

8 should reduce the deficit by ensuring that all individ9 uals and employers pay their fair share of taxes and 

10 contribute equally to the prosperity of our great Na11 tion. 

12 (3) The Government of the United States has 

13 an obligation to ensure the labor rights of all work14 ers in our country, and end the driving down of 

15 wages and workplace standards that exists today due 

16 to our broken immigration system. Unscrupulous 

17 employers should not be able to profit off of the 

18 backs of a workforce with no voice in the workplace 

19 or civic society. 

20 (4) The Government of the United States also 

21 has an obligation to ensure the growth and vitality 

22 of honest American businesses that are playing by 

23 the rules and fueling our economic recovery. 

24 (5) The labor and immigration policies of the 

25 United States Government should be modernized to 


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1 reflect the current needs of American workers and 

2 the American economy. 

3 (6) The Government of the United States can4 not effectively carry out its national security policies 

5 unless it requires undocumented immigrants to come 

6 forward and participate fully in our communities 

7 and legally in the economy of the United States, so 

8 that enforcement efforts are concentrated on the 

9 truly bad actors. 

10 (7) Elimination of America’s immigrant work11 force is not an effective or honest solution to Amer12 icas economic crisis. We need a solution that levels 

13 the playing field and promotes equal rights for all. 

14 (8) Dividing American families in not a moral 

15 or just solution to the broken immigration system. 

16 We need policies that treat all families equally and 

17 keep them together, to support each other and build 

18 strong communities. 

19 (9) Flawed immigration laws and persistent un20 equal administration of justice at the local level, 

21 based on race or national origin, has undermined ef22 fective community policing by discouraging the re23 porting of crime and cooperation with prosecutors in 

24 immigrant communities, due to well-founded fears of 

25 immigration enforcement action against them. This 


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1 puts entire communities at risk and undermines 

2 public safety for all. 

3 (10) The Government of the United States 

4 should ensure that racial profiling and unequal ad5 ministration of the law based on race or national ori6 gin is not permitted by any agency of Federal, State 

7 or local government bodies. 

8 (11) Our Government should ensure that our 

9 Nation’s borders are secure by investing in effective 

10 strategies, eliminating the millions of dollars cur11 rently being allocated to ineffective ones, and by re12 quiring consultation with state and local commu13 nities on both the northern and southern borders be14 fore implementing new border enforcement strate15 gies. 

16 (12) Foreign governments, particularly those 

17 that share an international border with the United 

18 States, must play a critical role in securing inter19 national borders and deterring illegal entry of for20 eign nationals into the United States. 

21 (13) The Government of the United States has 

22 an obligation to reaffirm its commitment to effective 

23 immigrant integration by supporting the teaching 

24 and promoting the learning of English. 


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1 (14) Comprehensive immigration reform and 

2 strong enforcement of immigration laws will encour3 age legal immigration, deter illegal immigration, and 

4 promote the economic and national security interests 

5 of the United States. 

6 SEC. 3. REFERENCE TO THE IMMIGRATION AND NATION7 ALITY ACT. 

8 Except as otherwise expressly provided, whenever in 

9 this Act an amendment or repeal is expressed in terms 

10 of an amendment to, or repeal of, a section or other provi11 sion, the reference shall be considered to be made to a 

12 section or other provision of the Immigration and Nation13 ality Act (8 U.S.C. 1101 et seq.). 

14 SEC. 4. DEFINITIONS. 

15 In this Act: 

16 (1) DEPARTMENT.—Except as otherwise pro17 vided, the term ‘‘Department’’ means the Depart18 ment of Homeland Security. 

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

20 the term ‘‘Secretary’’ means the Secretary of Home21 land Security. 

22 SEC. 5. SEVERABILITY. 

23 If any provision of this Act, any amendment made 

24 by this Act, or the application of such provision or amend25 ment to any person or circumstance is held to be invalid 


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

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

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

4 affected by such holding. 

5 TITLE I—BORDER SECURITY 

6 AND ENFORCEMENT 

7 SEC. 101. SENSE OF CONGRESS. 

8 It is the sense of Congress that— 

9 (1) the Secretary of Homeland Security should 

10 establish a national strategic plan for short-term and 

11 long-term border security with improved account12 ability and transparency in agency functions; 

13 (2) the Secretary’s border security priorities 

14 must support and strengthen the significant ad15 vances in operational control of the border; 

16 (3) the Secretary must secure our Nation’s 

17 ports of entry and facilitate the flow of commerce 

18 and travel; 

19 (4) the ports of entry to the United States re20 quire additional assets, personnel, infrastructure and 

21 improvements in technology; 

22 (5) although states along the Southern and 

23 Northern borders play a unique role in supporting 

24 the Federal Government, border security and enVerDate Nov 24 2008 00:39 Dec 17, 2009 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H4321.IH H4321

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1 forcement of the immigration laws are the responsi2 bility of the Federal Government; 

3 (6) combating human smuggling, arms traf4 ficking and drug trafficking are essential to border 

5 security; 

6 (7) protecting the economic and civic vitality of 

7 the border region is central to border security; and 

8 (8) effective border security depends on sus9 tained international cooperation. 

10 Subtitle A—Border Security 

11 SEC. 111. NATIONAL STRATEGY FOR BORDER SECURITY. 

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

13 in consultation with the heads of other appropriate Fed14 eral agencies, shall develop a National Strategy for Border 

15 Security that describes actions to be carried out to main16 tain operational control over all ports of entry into the 

17 United States and the international land and maritime 

18 borders of the United States. 

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

20 Security shall include the following: 

21 (1) An assessment of the threat posed by ter22 rorists and terrorist groups that may try to infiltrate 

23 the United States at locations along the inter24 national land and maritime borders of the United 

25 States. 


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1 (2) A risk assessment for all United States 

2 ports of entry and all portions of the international 

3 land and maritime borders of the United States that 

4 includes a description of activities being under5 taken— 

6 (A) to prevent the entry of terrorists, un7 lawful aliens, instruments of terrorism, nar8 cotics, and other contraband into the United 

9 States; and 

10 (B) to protect critical infrastructure at or 

11 near such ports of entry or borders. 

12 (3) An assessment of the most appropriate, 

13 practical, and cost-effective means of defending the 

14 international land and maritime borders of the 

15 United States against threats to security and illegal 

16 transit, including intelligence capacities, technology, 

17 equipment, personnel, and training needed to ad18 dress security vulnerabilities to include— 

19 (A) a comprehensive assessment of risks in 

20 terms of cost, probability, and threats to society 

21 and risk prevention and response measures cur22 rently taken and potentially taken relative to 

23 that assessment of risks; 


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1 (B) prevention efforts and response meas2 ures to address such risks, whether already un3 derway or planned; 

4 (C) recommendations on realignment of 

5 programs, locations, and resources to best ad6 dress the comprehensive assessment of risks. 

7 (4) An assessment of staffing needs for all bor8 der security functions, taking into account threat 

9 and vulnerability information pertaining to the bor10 ders and the impact of new security programs, poli11 cies, and technologies. 

12 (5) A description of the border security roles 

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

14 tribal authorities, and recommendations regarding 

15 actions the Secretary can carry out to improve co16 ordination with such authorities to enable border se17 curity and enforcement activities to be carried out in 

18 a more efficient and effective manner. 

19 (6) An assessment of existing programs, activi20 ties and technologies used for border security and 

21 the effect of the use of such efforts and technologies 

22 on civil rights, family unity, private property rights, 

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1 ers, trafficking victims, unaccompanied minor aliens, 

2 and other vulnerable populations. 

3 (7) A prioritized list of research and develop4 ment objectives to enhance the security of the inter5 national land and maritime borders of the United 

6 States. 

7 (8) A description of ways to ensure that the 

8 free flow of legitimate travel and commerce is not di9 minished by efforts, activities, and programs aimed 

10 at securing the international land and maritime bor11 ders of the United States. 

12 (9) A description of the performance metrics to 

13 be used to ensure accountability by the bureaus of 

14 the Department in implementing such Strategy. 

15 (10) A schedule for the implementation of the 

16 security measures described in such Strategy, includ17 ing a prioritization of security measures, realistic 

18 deadlines for addressing the security and enforce19 ment needs, an estimate of the resources needed to 

20 carry out such measures, and a description of how 

21 such resources should be allocated. 

22 (c) CONSULTATION.—In developing the National 

23 Strategy for Border Security, the Secretary shall consult 

24 with representatives of— 


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1 (1) State, local, and tribal authorities with re2 sponsibility for locations along the international land 

3 and maritime borders of the United States; and 

4 (2) appropriate private sector entities, non5 governmental organizations, and affected commu6 nities that have expertise in areas related to border 

7 management. 

8 (d) COORDINATION.—The National Strategy for Bor9 der Security shall be consistent with the National Strategy 

10 for Maritime Security developed pursuant to Homeland 

11 Security Presidential Directive 13, dated December 21, 

12 2004. 

13 (e) SUBMISSION TO CONGRESS.— 

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

15 date of enactment of this Act, the Secretary shall 

16 submit to Congress the National Strategy for Border 

17 Security. 

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

19 Congress any change of such Strategy that the Sec20 retary determines is necessary, not later than 30 

21 days after such determination. 

22 (f) IMMEDIATE ACTION.—Nothing in this section 

23 may be construed to relieve the Secretary of the responsi24 bility to take all actions necessary and appropriate to 


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1 maintain and enhance operational control of the inter2 national land and maritime borders of the United States. 

3 SEC. 112. INCREASE IN NUMBER OF CUSTOMS AND BORDER 

4 PROTECTION OFFICERS. 

5 (a) CUSTOMS AND BORDER PROTECTION OFFI6 CERS.—During the 5-year period between fiscal years 

7 2010 and 2014, the Secretary of Homeland Security shall, 

8 subject to the availability of appropriations for such pur9 pose, increase by not fewer than 5,000 the total number 

10 of full-time, active-duty Customs and Border Protection 

11 Officers within United States Customs and Border Protec12 tion for posting at United States ports of entry above the 

13 number of such officers for which funds were made avail14 able during fiscal year 2009. 

15 (b) AGRICULTURE SPECIALISTS.—During the 5-year 

16 period between fiscal years 2010 and 2014, the Secretary 

17 of Homeland Security shall, subject to the availability of 

18 appropriations for such border security purposes, increase 

19 by not fewer than a total of 1,200 the number of full20 time Customs and Border Protection agriculture special21 ists for United States ports of entry above the number 

22 of such support personnel for which funds were made 

23 available during fiscal year 2009. 

24 (c) BORDER SECURITY SUPPORT PERSONNEL.— 

25 During the 5-year period between fiscal years 2010 and 


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1 2014, the Secretary of Homeland Security shall, subject 

2 to the availability of appropriations for such purpose, in3 crease by not fewer than a total of 350 the number of 

4 full-time border security support personnel for United 

5 States ports of entry above the number of such support 

6 personnel for which funds were made available during fis7 cal year 2009. 

8 SEC. 113. IMPROVING PORTS OF ENTRY FOR BORDER SECU9 RITY AND OTHER PURPOSES. 

10 (a) IN GENERAL.—There are authorized to be appro11 priated to the Administrator of the General Services Ad12 ministration $1,000,000,000 for each of fiscal years 2010 

13 through 2014 to make improvements to existing ports of 

14 entry in the United States to improve border security and 

15 for other purposes. 

16 (b) PRIORITY.—In making improvements described 

17 in subsection (a), the Administrator of the General Serv18 ices Administration, in coordination with the Commis19 sioner of Customs and Border Protection, shall give pri20 ority to the ports of entry that the Administrator deter21 mines are in most need of repair to improve border secu22 rity and for other purposes in accordance with port of 

23 entry infrastructure assessment studies required in section 

24 603 of title VI, division E, of the Consolidated Appropria25 tions Act of 2008 (Public Law 101–161). 


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1 SEC. 114. INVENTORY OF PERSONNEL. 

2 (a) INVENTORY.—The Secretary shall identify and 

3 inventory the current personnel or other human resources 

4 dedicated to border security and enforcement prior to any 

5 increase in personnel or other human resources. 

6 (b) REPORT.—The Secretary shall submit the inven7 tory required in subsection (a) to the following congres8 sional committees, 90 days after the enactment of this 

9 Act— 

10 (1) the Committee on Homeland Security and 

11 Governmental Affairs and the Committee on the Ju12 diciary of the Senate; 

13 (2) the Committee on Homeland Security and 

14 the Committee on the Judiciary of the House of 

15 Representatives; and 

16 (3) the Committee on Oversight and Govern17 ment Reform of the House of Representatives. 

18 SEC. 115. STANDARDS OF PROFESSIONAL CONDUCT. 

19 (a) ESTABLISHMENT OF STANDARDS.—Not more 

20 than 90 days after the date of enactment of this Act, the 

21 Secretary of Homeland Security shall establish clear 

22 standards of professional conduct for interaction with the 

23 public, for all Customs and Border Protection agents, U.S. 

24 Border Patrol agents, Immigration and Customs Enforce25 ment agents, and Agricultural Inspectors stationed within 


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1 100 miles of all land and marine borders and at ports of 

2 entry. 

3 (b) PURPOSE.—These standards of professional con4 duct will provide agents with a better understanding of 

5 the prohibitions and limitations pertaining to their con6 duct and activities while representing the Department of 

7 Homeland Security. These standards are intended to— 

8 (1) alert agents to some of the more sensitive 

9 and often problematic matters involved in agent con10 duct; 

11 (2) specify, where possible, actions and inac12 tions that are contrary to and that conflict with the 

13 duties and responsibilities of Department of Home14 land security agents; and 

15 (3) guide agents in conducting themselves in a 

16 manner that reflects standards of deportment and 

17 professionalism. 

18 (c) STANDARDS.—Department of Homeland Security 

19 agents stationed within 100 miles of all land and marine 

20 borders and at ports of entry— 

21 (1) shall not violate any law or any agency pol22 icy, rule, or procedure; 

23 (2) shall obey all lawful orders; 

24 (3) shall not engage in any conduct or activities 

25 on- or off-duty that reflect discredit on the agents, 


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1 tend to bring the agency into disrepute, or impair its 

2 efficient and effective operation; 

3 (4) shall conduct themselves toward the public 

4 in a civil and professional manner that connotes a 

5 service orientation and that will foster public respect 

6 and cooperation; 

7 (5) shall treat violators, or perceived violators, 

8 with respect and courtesy, guard against employing 

9 an officious or overbearing attitude or language that 

10 may belittle, ridicule, or intimidate the individual, or 

11 act in a manner that unnecessarily delays the per12 formance of their duty; 

13 (6) while recognizing the need to demonstrate 

14 authority and control over suspects and detainees, 

15 agents shall adhere to this agency’s use-of-force pol16 icy and shall observe the civil rights and protect the 

17 well-being of those in their charge; and 

18 (7) shall not use their agency powers to resolve 

19 personal grievances (e.g., those involving the officer, 

20 family members, relatives, or friends) with individ21 uals. In cases where there is personal involvement 

22 with a member of the public that would reasonably 

23 require law enforcement intervention, agents shall 

24 summon other on-duty personnel and a supervisor. 


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1 (d) OVERSIGHT AND EVALUATION.—The Depart2 ment of Homeland Security shall develop and implement 

3 a plan that applies the aforementioned standards in officer 

4 evaluation and supervisor evaluation. This plan shall in5 clude the following provisions to ensure responsibility and 

6 protect civil rights: 

7 (1) Adherence to the standards of professional 

8 conduct shall be a central criterion in the change 

9 from probationary to journeyman status, as well as 

10 periodic evaluations and promotions of officers. 

11 (2) Managers and senior officers will be held re12 sponsible for— 

13 (A) performance according to these stand14 ards; 

15 (B) assessments of subordinates according 

16 to these standards; and 

17 (C) performance of their subordinates on 

18 these standards, with meaningful penalties to 

19 supervisors for failures of subordinates to ad20 here to such standards. 

21 (3) The Department shall establish strong pen22 alties for failures to follow the standards of profes23 sional conduct that were unaddressed until exposed 

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1 ors who uncover and act on failures or abuses shall 

2 be exempt from such penalties. 

3 (4) Agents should not be indemnified when it is 

4 determined that a violation of civil rights standards 

5 occurred. 

6 (e) EXCEPTION.—The standards of conduct set forth 

7 in this section are not intended to serve as an exhaustive 

8 treatment of requirements, limitations, or prohibitions on 

9 agent conduct and activities established by the Secretary 

10 of Homeland Security. 

11 (f) NOTICE.—The standards of conduct established 

12 under this section shall be posted at all ports of entry in 

13 locations easily viewed by members of the public. 

14 (g) COMPLAINTS.—Not more than 180 days after en15 actment, the Secretary shall, in consultation with the Of16 fice of Civil Rights and Civil Liberties, establish a uniform 

17 and standardized process for the public regarding com18 plaints against all Customs and Border Protection agents, 

19 U.S. Border Patrol agents, and Agricultural Inspectors for 

20 violations of standards of professional conduct. The com21 plaint process shall— 

22 (1) quickly review, effectively investigate, mean23 ingfully resolve complaints and identify patterns of 

24 abuse or malfeasance and be accessible, transparent, 

25 consistent, effective, and fair; 


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1 (2) apply uniformly to all Border Patrol Sectors 

2 and Ports of Entry; 

3 (3) specify to whom, how, and where complaints 

4 are to be filed; 

5 (4) be visible to the public at all ports of entry 

6 and interior checkpoints, and be accessible in mul7 tiple languages; 

8 (5) receive staff and funding commensurate 

9 with the quantity of complaints submitted and with 

10 the funding disbursed to Department enforcement 

11 initiatives; 

12 (6) establish a publicly accessible national, 

13 standardized database capable of tracking and ana14 lyzing complaints and their resolution; and 

15 (7) provide publicly accessible records, with cop16 ies of complaints and their resolutions permanently 

17 preserved and available for inspection, while main18 taining the confidentiality of complainants’ identi19 ties. 

20 (h) COMPLAINANTS.—The following shall apply to all 

21 complainants: 

22 (1) Any interested party may file a complaint 

23 through the complaint procedure, including a legal 

24 representative. 


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1 (2) Complainants shall be protected from retal2 iatory action by law enforcement. 

3 (3) No officer of the US may use the informa4 tion from a complaint to initiate removal pro5 ceedings or removals against any person filing a 

6 complaint or identified in the complaint, nor remove 

7 any individual involved in a complaint while the com8 plaint is pending. 

9 (4) There shall be no publication of information 

10 to related to an individual involved in a complaint 

11 which would result in identification of the individual. 

12 (5) Complainants shall receive full assistance 

13 from the Department in filing complaints, including 

14 language assistance, accommodations for disabilities, 

15 and accurate and complete responses to their ques16 tions. 

17 (i) REPORTING.—The Secretary shall report annually 

18 to the following Congressional Committees on the number 

19 and type of complaints received in each sector, demo20 graphic of complainants, results of investigations includ21 ing violations of standards and any disciplinary actions 

22 taken, and identifying any complaint patterns that could 

23 be prevented or reduced by policy or practice changes— 


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1 (1) the Committee on Homeland Security and 

2 Governmental Affairs and the Committee on the Ju3 diciary of the Senate; 

4 (2) the Committee on Homeland Security and 

5 the Committee on the Judiciary of the House of 

6 Representatives; and 

7 (3) the Committee on Oversight and Govern8 ment Reform of the House of Representatives. 

9 SEC. 116. INVENTORY OF ASSETS. 

10 (a) INVENTORY.—The Secretary shall identify and 

11 inventory the current assets, equipment, supplies, or other 

12 physical resources dedicated to border security and en13 forcement prior to any increase in assets, equipment, sup14 plies or other physical resources. 

15 (b) REPORT.—The Secretary shall submit the inven16 tory required in subsection (a) to the following congres17 sional committees, 90 days from the enactment of this 

18 Act— 

19 (1) the Committee on Homeland Security and 

20 Governmental Affairs and the Committee on the Ju21 diciary of the Senate; 

22 (2) the Committee on Homeland Security and 

23 the Committee on the Judiciary of the House of 

24 Representatives; and 


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1 (3) the Committee on Oversight and Govern2 ment Reform of the House of Representatives. 

3 SEC. 117. CUSTOMS BORDER PATROL AND BORDER PRO4 TECTION ASSETS. 

5 (a) PERSONAL EQUIPMENT.— 

6 (1) BODY ARMOR.—The Secretary shall ensure 

7 that every agent is issued high-quality body armor 

8 that is appropriate for the climate and risks faced 

9 by the agent. Each agent shall be permitted to select 

10 from among a variety of approved brands and styles. 

11 Agents shall be strongly encouraged, but not re12 quired, to wear such body armor whenever prac13 ticable. All body armor shall be replaced not less 

14 often than once every five years. 

15 (2) WEAPONS.—The Secretary shall ensure 

16 that agents are equipped with weapons that are reli17 able and effective to protect themselves, their fellow 

18 agents, and innocent third parties from the threats 

19 posed by armed criminals. The Secretary shall en20 sure that the policies of the Department authorize 

21 all agents to carry weapons that are suited to the 

22 potential threats that they face. 

23 (3) UNIFORMS.—The Secretary shall ensure 

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1 mate, footwear, belts, holsters, and personal protec2 tive equipment, at no cost to such agents. Such 

3 items shall be replaced at no cost to such agents as 

4 such items become worn or unserviceable or no 

5 longer fit properly 

6 (b) HELICOPTERS AND POWER BOATS.— 

7 (1) HELICOPTERS.—The Secretary shall con8 duct a review of asset needs, and if determined to 

9 be insufficient, shall increase the number of heli10 copters under the control of the Border Patrol. The 

11 Secretary shall ensure that appropriate types of heli12 copters are procured for the various missions being 

13 performed. 

14 (2) POWER BOATS.—The Secretary shall con15 duct a review of asset needs and if determined to be 

16 insufficient, shall increase the number of power 

17 boats under the control of the Border Patrol. The 

18 Secretary shall ensure that the types of power boats 

19 that are procured are appropriate for both the wa20 terways in which they are used and the mission re21 quirements. 

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

23 (A) establish an overall policy on how the 

24 helicopters and power boats procured under this 

25 subsection will be used; and 


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1 (B) implement training programs for the 

2 agents who use such assets, including safe oper3 ating procedures and rescue operations. 

4 (c) MOTOR VEHICLES.— 

5 (1) QUANTITY.—The Secretary shall conduct a 

6 review of asset needs and if determined to be insuffi7 cient, establish a fleet of motor vehicles appropriate 

8 for use by the Border Patrol. The Secretary shall 

9 ensure that there are sufficient numbers and types 

10 of other motor vehicles to support the mission of the 

11 Border Patrol. 

12 (2) FEATURES.—All motor vehicles purchased 

13 for the Border Patrol shall— 

14 (A) be appropriate for the mission of the 

15 Border Patrol; and 

16 (B) have a panic button and a global posi17 tioning system device that is activated solely in 

18 emergency situations to track the location of 

19 agents in distress. 

20 (d) ELECTRONIC EQUIPMENT.— 

21 (1) PORTABLE COMPUTERS.—The Secretary 

22 shall ensure that each police-type motor vehicle in 

23 the fleet of the Border Patrol is equipped with a 

24 portable computer with access to all necessary law 

25 enforcement databases and otherwise suited to the 


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1 unique operational requirements of the Border Pa2 trol. 

3 (2) RADIO EQUIPMENT.—The Secretary shall 

4 augment the existing radio communications system 

5 so that all law enforcement personnel working in 

6 each area where Border Patrol operations are con7 ducted have clear and encrypted 2-way radio com8 munication capabilities at all times. Each portable 

9 communications device shall be equipped with a 

10 panic button and a global positioning system device 

11 that is activated solely in emergency situations to 

12 track the location of agents in distress. 

13 (3) HANDHELD GLOBAL POSITIONING SYSTEM

14 DEVICES.—The Secretary shall ensure that each 

15 Border Patrol agent who is determined by the Sec16 retary to need a handheld global positioning device 

17 to effectively and safely carry out his or her duties 

18 is issued a state-of-the-art handheld global posi19 tioning system device for navigational purposes. 

20 (4) NIGHT VISION EQUIPMENT.—The Secretary 

21 shall ensure that sufficient quantities of state-of-the22 art night vision equipment are procured and main23 tained to enable each Border Patrol agent working 

24 during the hours of darkness to be equipped with a 

25 portable night vision device. 


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1 (e) APPROPRIATIONS.—There are authorized to be 

2 appropriated to the Secretary such sums as may be nec3 essary for each of fiscal years 2011 through 2015 to carry 

4 out this section. 

5 SEC. 118. TECHNOLOGICAL ASSETS. 

6 (a) INCREASED AVAILABILITY OF EQUIPMENT.—The 

7 Secretary and the Secretary of Defense shall analyze use 

8 of authorities provided to the Secretary of Defense under 

9 chapter 18 of title 10, United States Code, and whether 

10 to increase the availability and use of Department of De11 fense equipment, including unmanned aerial vehicles, teth12 ered aerostat radars, and other surveillance equipment, to 

13 assist the Secretary in carrying out surveillance activities 

14 conducted at or near the international land borders of the 

15 United States to deter criminal activity and terrorist 

16 threats. 

17 (b) REPORT.—Not later than 180 days after the date 

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

19 of Defense shall submit to Congress a report that contains 

20 (1) an analysis of the current use of Depart21 ment of Defense equipment to assist the Secretary 

22 in carrying out surveillance of the international land 

23 borders of the United States and assessment of the 

24 risks to citizens of the United States and foreign 


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1 policy interests associated with the use of such 

2 equipment; 

3 (2) an analysis of projected future use of De4 partment of Defense equipment to assist such sur5 veillance activities, including any increases; 

6 (3) an analysis of the types of equipment and 

7 other support to be provided by the Secretary of De8 fense under such plan during the one-year period be9 ginning on the date of the submission of the report; 

10 (4) an analysis of costs and cost-effectiveness 

11 related to any increase in the availability and use of 

12 Department of Defense equipment; and 

13 (5) an analysis of projected schedules for imple14 mentation. 

15 (c) 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 (d) AUTHORIZATION OF APPROPRIATIONS.—There 

21 are authorized to be appropriated to the Secretary such 

22 sums as may be necessary for each of fiscal years 2011 

23 through 2015 to carry out this section. 


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1 SEC. 119. SECURE COMMUNICATION. 

2 The Secretary shall, as expeditiously as practicable, 

3 develop and implement a plan to improve the use of sat4 ellite communications and other technologies to ensure 

5 clear and secure 2-way communication capabilities— 

6 (1) among all Border Patrol agents conducting 

7 operations between ports of entry; 

8 (2) between Border Patrol agents and their re9 spective Border Patrol stations; 

10 (3) between Border Patrol agents and residents 

11 in remote areas along the international land borders 

12 of the United States; and 

13 (4) between all appropriate border security 

14 agencies of the Department and State, local, and 

15 tribal law enforcement agencies. 

16 SEC. 120. SURVEILLANCE PLAN. 

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

18 develop a comprehensive plan for the systematic surveil19 lance of the international land and maritime borders of 

20 the United States. 

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

22 shall include the following: 

23 (1) An assessment of existing technologies em24 ployed on the international land and maritime bor25 ders of the United States. 


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1 (2) A description of the compatibility of new 

2 surveillance technologies with surveillance tech3 nologies in use by the Secretary on the date of en4 actment of this Act. 

5 (3) A description of how the Commissioner of 

6 the United States Customs and Border Protection is 

7 working, or is expected to work, with the Under Sec8 retary for Science and Technology of the Depart9 ment to identify and test surveillance technology. 

10 (4) A description of the specific surveillance 

11 technology to be deployed. 

12 (5) Identification of any obstacles that may im13 pede such deployment. 

14 (6) A detailed estimate of all costs associated 

15 with such deployment and with continued mainte16 nance of such technologies. 

17 (7) A description of how the Secretary is work18 ing with the Administrator of the Federal Aviation 

19 Administration on safety and airspace control issues 

20 associated with the use of unmanned aerial vehicles. 

21 (8) A description of the demonstration program 

22 to fully integrate and utilize aerial surveillance tech23 nologies developed pursuant to section 121(a). 


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1 (9) A description of the Integrated and Auto2 mated Surveillance demonstration program estab3 lished pursuant to section 121(b). 

4 (c) SUBMISSION TO CONGRESS.—Not later than 180 

5 days after the date of enactment of this Act, the Secretary 

6 shall submit to Congress the plan required by this section. 

7 SEC. 121. SURVEILLANCE TECHNOLOGIES PROGRAMS. 

8 (a) AERIAL SURVEILLANCE DEMONSTRATION PRO9 GRAM.— 

10 (1) IN GENERAL.—In conjunction with the bor11 der surveillance plan developed under section 5201 

12 of the Intelligence Reform and Terrorism Prevention 

13 Act of 2004 (Public Law 108–458; 8 U.S.C. 1701 

14 note), the Secretary, not later than 90 days after the 

15 date of enactment of this Act, shall develop a dem16 onstration program to fully integrate and utilize aer17 ial surveillance technologies, including unmanned 

18 aerial vehicles, to enhance the security of the inter19 national border between the United States and Can20 ada and the international border between the United 

21 States and Mexico. 

22 (2) ASSESSMENT AND CONSULTATION REQUIRE23 MENTS.—In developing the program under this sub24 section, the Secretary shall— 


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1 (A) consider current and proposed aerial 

2 surveillance technologies; 

3 (B) assess the feasibility and advisability 

4 of utilizing such technologies to address border 

5 threats, including an assessment of the tech6 nologies considered best suited to address re7 spective threats, cost-effectiveness, reliability, 

8 and minimal impact on border residential areas; 

9 (C) consult with the Secretary of Defense 

10 regarding any technologies or equipment, which 

11 the Secretary may deploy along an international 

12 border of the United States; 

13 (D) consult with the Administrator of the 

14 Federal Aviation Administration regarding safe15 ty, airspace coordination and regulation, and 

16 any other issues necessary for implementation 

17 of the program; and 

18 (E) conduct a privacy impact assessment 

19 with the Officer for Civil Rights and Civil Lib20 erties with the Department that includes rec21 ommendations with respect to ensuring the civil 

22 liberties and civil rights of individuals in sur23 rounding communities. 

24 (3) ADDITIONAL REQUIREMENTS.— 


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1 (A) IN GENERAL.—The demonstration pro2 gram developed under this subsection may in3 clude the use of a variety of aerial surveillance 

4 technologies in a variety of topographies and 

5 areas, including populated and unpopulated 

6 areas located on or near an international border 

7 of the United States, in order to evaluate, for 

8 a range of circumstances— 

9 (i) the significance of previous experi10 ences with such technologies in border se11 curity or critical infrastructure protection; 

12 (ii) the cost and effectiveness of var13 ious technologies for border security, in14 cluding varying levels of technical com15 plexity; and 

16 (iii) liability, safety, and privacy con17 cerns relating to the utilization of such 

18 technologies for border security. 

19 (4) CONTINUED USE OF AERIAL SURVEILLANCE

20 TECHNOLOGIES.—The Secretary may continue the 

21 operation of aerial surveillance technologies while de22 veloping the demonstration program and assessing 

23 the effectiveness of the utilization of such tech24 nologies. 


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1 (5) REPORT TO CONGRESS.—Not later than 

2 180 days after developing the demonstration pro3 gram under this subsection, the Secretary shall sub4 mit to Congress a report regarding such program. 

5 The Secretary shall include in the report a descrip6 tion of such program together with any rec7 ommendations that the Secretary finds appropriate 

8 for implementing or terminating the program. 

9 (b) INTEGRATED AND AUTOMATED SURVEILLANCE

10 DEMONSTRATION PROGRAM.— 

11 (1) REQUIREMENT FOR PROGRAM.—Subject to 

12 the availability of appropriations, the Secretary shall 

13 establish a demonstration program to procure addi14 tional unmanned aerial vehicles, cameras, poles, sen15 sors, satellites, radar coverage, and other tech16 nologies necessary to enhance operational control of 

17 the international borders of the United States. Such 

18 program shall be known as the Integrated and Auto19 mated Surveillance Demonstration Program. 

20 (2) PROGRAM COMPONENTS.—The Secretary 

21 shall ensure, to the maximum extent feasible, that— 

22 (A) the technologies utilized in the Inte23 grated and Automated Surveillance Demonstra24 tion Program are integrated and function cohe25 sively in an automated fashion, including the 


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1 integration of motion sensor alerts and cameras 

2 in a manner where a sensor alert automatically 

3 activates a corresponding camera to pan and 

4 tilt in the direction of the triggered sensor; 

5 (B) cameras utilized in the Program do 

6 not have to be manually operated; 

7 (C) such camera views and positions are 

8 not fixed; 

9 (D) surveillance video taken by such cam10 eras is able to be viewed at multiple designated 

11 communications centers; 

12 (E) a standard process is used to collect, 

13 catalog, and report intrusion and response data 

14 collected under the Program; 

15 (F) future remote surveillance technology 

16 investments and upgrades for the Program can 

17 be integrated with existing systems; 

18 (G) performance measures are developed 

19 and applied that can evaluate whether the Pro20 gram is providing desired results and increasing 

21 response effectiveness in monitoring and detect22 ing illegal intrusions along the international 

23 borders of the United States; 

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1 tion, and environmental assessment processes to 

2 minimize delays of installing surveillance tech3 nology infrastructure; 

4 (I) standards are developed under the Pro5 gram to expand the shared use of existing pri6 vate and governmental structures to install re7 mote surveillance technology infrastructure 

8 where possible; and 

9 (J) standards are developed under the Pro10 gram to identify and deploy the use of non11 permanent or mobile surveillance platforms that 

12 will increase the Secretary’s mobility and ability 

13 to identify illegal border intrusions. 

14 (3) REPORT TO CONGRESS.—Not later than one 

15 year after the initial implementation of the Inte16 grated and Automated Surveillance Demonstration 

17 Program, the Secretary shall submit to Congress a 

18 report regarding the Program. The Secretary shall 

19 include in the report a description of the Program 

20 together with any recommendation that the Sec21 retary finds appropriate for enhancing or termi22 nating the program. 

23 (4) EVALUATION OF CONTRACTORS.— 

24 (A) REQUIREMENT FOR STANDARDS.—The 

25 Secretary shall develop appropriate standards 


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1 to evaluate the performance of any contractor 

2 providing goods or services to carry out the In3 tegrated and Automated Surveillance Dem4 onstration Program. 

5 (B) REVIEW BY THE INSPECTOR GEN6 ERAL.— 

7 (i) IN GENERAL.—The Inspector Gen8 eral of the Department shall review each 

9 new contract related to the Program that 

10 has a value of more than $5,000,000 in a 

11 timely manner, to determine whether such 

12 contract fully complies with applicable cost 

13 requirements, performance objectives, pro14 gram milestones, and schedules. 

15 (ii) REPORTS.—The Inspector General 

16 shall report the findings of each review 

17 carried out under clause (i) to the Sec18 retary in a timely manner. Not later than 

19 30 days after the date the Secretary re20 ceives a report of findings from the Inspec21 tor General, the Secretary shall submit to 

22 the Committee on Homeland Security and 

23 Governmental Affairs of the Senate and 

24 the Committee on Homeland Security of 

25 the House of Representatives a report of 


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1 such findings and a description of any the 

2 steps that the Secretary has taken or plans 

3 to take in response to such findings. 

4 (5) AUTHORIZATION OF APPROPRIATIONS.— 

5 There are authorized to be appropriated such sums 

6 as may be necessary to carry out this section. 

7 SEC. 122. BORDER SECURITY SEARCHES OF ELECTRONIC 

8 DEVICES. 

9 (a) RULE.—Not later than 180 days after the date 

10 of the enactment of this Act, the Secretary, acting through 

11 the Commissioner of United States Customs and Border 

12 Protection, in coordination with the Assistant Secretary 

13 of Homeland Security for United States Immigration and 

14 Customs Enforcement and the senior official appointed 

15 pursuant to section 222 of the Homeland Security Act of 

16 2002 (6 U.S.C. 142), shall issue a rule with respect to 

17 the scope of and procedural and record keeping require18 ments associated with border security searches of elec19 tronic devices. 

20 (b) CONTENT.—The rule issued pursuant to sub21 section (a) shall include the following: 

22 (1) A requirement that information collected 

23 during a border security search of an electronic de24 vice that is determined to be commercial informa25 tion, including trade secrets, information subject to 


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1 attorney-client privilege, information subject to doc2 tor-patient privilege, or information subject to an3 other privilege or protection shall be handled con4 sistent with the laws, rules, and regulations gov5 erning such information and shall not be shared 

6 with a Federal, State, local, tribal, or foreign agency 

7 unless it is determined that such agency has the 

8 mechanisms in place to comply with such laws, rules, 

9 and regulations. 

10 (2) A requirement that authorized agents, to 

11 the greatest extent practicable, conduct all border 

12 security searches of electronic devices at a port of 

13 entry in the presence of a supervisor and, where ap14 propriate, in the presence of the individuals whose 

15 electronic devices are subject to such searches. 

16 (3) A determination of the number of days that 

17 an electronic device subjected to a border security 

18 search or the information collected from such device 

19 may be retained, unless probable cause exists, that 

20 prohibits retention exceeding the period necessary to 

21 translate, decrypt, or reasonably search such device 

22 or information and that requires such information to 

23 be destroyed if in the custody of an authorized agent 

24 after such number of days. 


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1 (4) A requirement that if information collected 

2 from an electronic device subjected to a border secu3 rity search is copied, shared, retained, or entered 

4 into an electronic database, the individual from 

5 whose electronic device such information is collected 

6 shall receive written notification of such copying, 

7 sharing, retention, or entry unless such notification 

8 would hinder an investigation involving national se9 curity or would meet another criteria established by 

10 the Secretary in the rule. 

11 (5) A requirement that an individual subjected 

12 to a border security search of an electronic device 

13 shall receive a receipt for such device if such device 

14 is removed from the possession of such individual. 

15 (6) A requirement that an individual subjected 

16 to a border security search of an electronic device 

17 shall receive notice of how to report abuses or con18 cerns and how to seek redress from the Department 

19 of Homeland Security. 

20 (7) A requirement that information on the 

21 rights of individuals with respect to border security 

22 searches and Department of Homeland Security re23 dress procedures shall be posted at all ports of entry 

24 in locations that are likely to be viewed by individ25 uals subject to border security searches. 


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1 (8) A privacy impact assessment of the rule, as 

2 prepared by the senior official appointed pursuant to 

3 section 222 of the Homeland Security Act of 2002, 

4 that includes recommendations with respect to the 

5 copying, sharing, retention, and entry into an elec6 tronic database of personally identifiable information 

7 collected from electronic devices subjected to a bor8 der security search. 

9 (9) A civil liberties impact assessment of the 

10 rule, as prepared by the Officer for Civil Rights and 

11 Civil Liberties of the Department of Homeland Se12 curity. 

13 (c) TRAINING AND AUDITING WITH RESPECT TO

14 SEARCHES.— 

15 (1) TRAINING.—The Secretary shall provide 

16 each authorized agent with appropriate training to 

17 conduct border security searches of electronic devices 

18 at ports of entry in accordance with the rule issued 

19 pursuant to subsection (a). The training shall in20 clude instruction on constitutional, privacy, civil 

21 rights, and civil liberties issues related to such 

22 searches. 

23 (2) AUDITING.—The Secretary, acting through 

24 the Inspector General of the Department of Home25 land Security, shall develop and annually administer 


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1 an auditing mechanism to review whether authorized 

2 agents are conducting border security searches of 

3 electronic devices at ports of entry in accordance 

4 with the rule issued pursuant to subsection (a). 

5 (d) REPORT.—Not later than 180 days after the ef6 fective date of the rule issued pursuant to subsection (a), 

7 and quarterly thereafter, the Secretary shall submit to the 

8 Committee on Homeland Security of the House of Rep9 resentatives and to the Committee on Homeland Security 

10 and Governmental Affairs of the Senate a report that shall 

11 include the following: 

12 (1) A description of the activities of authorized 

13 agents with respect to border security searches of 

14 electronic devices at ports of entry. 

15 (2) A description of the manner in which the 

16 Department of Homeland Security has complied 

17 with this Act. 

18 (3) The number, by port of entry, of border se19 curity searches of electronic devices at ports of entry 

20 conducted during the reporting period. 

21 (4) The number, by port of entry, of instances 

22 during the reporting period that information from 

23 an electronic device subjected to a border security 

24 search was retained, copied, shared, or entered in an 

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1 tronic devices retained as the result of a border se2 curity search. 

3 (5) The race, ethnicity, national origin, and citi4 zenship of each individual whose electronic device 

5 was subjected to a border security at a port of entry 

6 search during the reporting period, to determine the 

7 existence or absence of racial profiling. 

8 (6) The number of instances during the report9 ing period that information collected from an elec10 tronic device subjected to a border security search at 

11 a port of entry was referred to a law enforcement or 

12 intelligence agency for further action, including 

13 whether such information resulted in a prosecution 

14 or conviction. 

15 (e) DEFINITIONS.—In this section, the following defi16 nitions apply: 

17 (1) AUTHORIZED AGENT.—The term ‘‘author18 ized agent’’ means an agent, officer, or official of 

19 United States Customs and Border Protection, 

20 United States Immigration and Customs Enforce21 ment, or any other office or agency of the Depart22 ment of Homeland Security who is authorized to 

23 conduct a border security search. 

24 (2) BORDER SECURITY SEARCH.—The term 

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1 thorized agent of persons, baggage, or cargo enter2 ing, departing, or passing through the United States 

3 through any port of entry. 

4 (3) ELECTRONIC DEVICE.—The term ‘‘elec5 tronic device’’ means an electronic, magnetic, opti6 cal, electrochemical, or other high-speed data proc7 essing device performing logical, arithmetic, or stor8 age functions, such as a computer, a cellular tele9 phone, or any other device used for electronic com10 munication or for storing electronic, digital or ana11 log data, and which includes any data storage facil12 ity or communications facility directly related to or 

13 operating in conjunction with such device. 

14 SEC. 123. BORDER RELIEF GRANT PROGRAM. 

15 (a) GRANTS AUTHORIZED.— 

16 (1) IN GENERAL.—The Attorney General is au17 thorized to award grants to— 

18 (A) eligible law enforcement agencies, or a 

19 coalition of such agencies, including sheriff’s of20 fices, police departments and tribal police de21 partments; and 

22 (B) institutions of higher education that 

23 provide assistance to law enforcement agencies 

24 in counties described in subparagraph (A) or 


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1 (B) of subsection (d)(1) to provide the re2 sources described in subsection (b)(4). 

3 (2) COMPETITIVE BASIS.—The Attorney Gen4 eral shall award grants under this section on a com5 petitive basis. 

6 (3) PRIORITY.—In awarding grants for the uses 

7 described in paragraphs (1) through (3) of sub8 section (b), the Attorney General shall give priority 

9 to law enforcement agencies: 

10 (A) located in a county that is within 100 

11 miles from the United States border with Mex12 ico or Canada; and 

13 (B) in compliance with Federal and State 

14 racial profiling laws and guidelines. 

15 (4) DURATION.—Grants awarded under this 

16 section shall not exceed two years. Prior awardees 

17 must reapply to be considered for continued funding. 

18 (5) PROHIBITION.—The Attorney General shall 

19 not award a grant to any applicant that is under in20 vestigation for violations of federal or state racial 

21 profiling laws or guidelines. 

22 (b) USE OF FUNDS.—Grants awarded under this sec23 tion may only be used to provide additional resources for 

24 eligible law enforcement agencies to address drug-related 

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1 scribed in paragraph (4) for organizations described in 

2 subsection (a)(3), including resources to— 

3 (1) combat criminal activities along the North4 ern and Southern border by— 

5 (A) obtaining, upgrading, or maintain 

6 equipment; 

7 (B) hiring additional personnel; 

8 (C) reimbursing operational expenditures, 

9 including overtime and transportation costs; 

10 and 

11 (D) providing other assistance necessary to 

12 address drug-related criminal activity; 

13 (2) facilitate information sharing and collabora14 tion by— 

15 (A) establishing, maintaining, or enhancing 

16 multi-jurisdictional intelligence gathering and 

17 sharing activities; 

18 (B) facilitating regional crime prevention 

19 and reduction efforts; and 

20 (C) strengthening partnerships between 

21 Federal, tribal, State, and local law enforce22 ment agencies; 

23 (3) enhance jails, community corrections, and 

24 detention operations by— 


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1 (A) improving the administration and oper2 ations of correction functions related to reduc3 ing and preventing criminal narcotics activity; 

4 (B) improving access to intelligence and 

5 collaboration between law enforcement and cor6 rectional system personnel; 

7 (C) reducing the recidivism rates of drug 

8 offenders; and 

9 (D) hiring detention, probation, parole, 

10 and other corrections personnel for implementa11 tion of the efforts described in this paragraph; 

12 and 

13 (4) provide training and technical assistance, 

14 including training and assistance related to— 

15 (A) narcotics-related kidnapping negotia16 tion and rescue tactics; 

17 (B) intelligence and information sharing on 

18 drug trafficking organizations; and 

19 (C) the interdiction of narcotics, weapons, 

20 and illegal drug proceeds. 

21 (c) APPLICATION.— 

22 (1) IN GENERAL.—Each eligible law enforce23 ment agency, or coalition of such agencies, seeking 

24 a grant under this section shall submit an applica25 tion to the Attorney General at such time, in such 


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1 manner, and accompanied by such information as 

2 the Attorney General may reasonably require. 

3 (2) CONTENTS.—Each application submitted 

4 under paragraph (1) shall— 

5 (A) describe the activities for which assist6 ance under this section is sought; 

7 (B) disclose whether the applicant has ever 

8 been investigated for or convicted of violation of 

9 Federal or State racial profiling laws or guide10 lines; and 

11 (C) provide such additional assurances as 

12 the Attorney General determines to be essential 

13 to ensure compliance with the requirements 

14 under this section. 

15 (d) MONITORING AND OVERSIGHT.— 

16 (1) Each grantee shall submit to the Attorney 

17 General documentation of the use of grant funds, in18 cluding an assessment of their utility in protecting 

19 border community safety, the prevention of smug20 gling activities, and the apprehension of persons in21 volved in violence and organized crime. 

22 (2) These reports will determine whether the 

23 grantee uses funds appropriately and should be con24 sidered for a renewal grant. 

25 (e) DEFINITIONS.—In this section: 


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1 (1) ELIGIBLE LAW ENFORCEMENT AGENCY.— 

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

3 a tribal, State, or local law enforcement agency, in4 cluding a community corrections agency and any 

5 agency that employs prosecutors, probation officers, 

6 or parole officers, which is located or performs du7 ties in— 

8 (A) a county that is not more than 100 

9 miles from a United States border with Mexico; 

10 (B) a county that is not more than 100 

11 miles from a United States border with Canada; 

12 or 

13 (C) a jurisdiction that has been designated 

14 by the Director of the Office of Drug Control 

15 Policy as a High Intensity Drug Trafficking 

16 Area. 

17 (2) HIGH INTENSITY DRUG TRAFFICKING

18 AREA.—The term ‘‘High Intensity Drug Trafficking 

19 Area’’ means any jurisdiction designated as a ‘‘High 

20 Intensity Drug Trafficking Area’’ by the National 

21 Drug Control Program under section 707 of the Of22 fice of National Drug Control Policy Reauthorization 

23 Act of 1998 (21 U.S.C. 1706). 

24 (f) ASSESSMENT AND REPORT.—The Attorney Gen25 eral shall submit a bi-annual report assessing the success 


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1 of the program in combating and reducing drug-traf2 ficking and drug-related criminal activity, cost-effective3 ness of the program, and future value and viability of the 

4 program to— 

5 (1) the Committee on the Judiciary of the 

6 House of Representatives; and 

7 (2) the Committee on the Judiciary of the Sen8 ate. 

9 (g) AUTHORIZATION OF APPROPRIATIONS.— 

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

11 appropriated $100,000,000 for each of the fiscal 

12 years 2011 through 2015 to carry out the provisions 

13 of this section. 

14 (2) ALLOCATION OF AUTHORIZED FUNDS.—Of 

15 the amounts appropriated pursuant to paragraph 

16 (1)— 

17 (A) not more than 33 percent may be set 

18 aside for High Intensity Drug Trafficking 

19 Areas; and 

20 (B) not more than 30 percent may be used 

21 for activities described in paragraphs (3) and 

22 (4) of subsection (b). 

23 (3) SUPPLEMENT NOT SUPPLANT.—Amounts 

24 appropriated for grants pursuant to paragraph (1) 

25 shall be used to supplement and not to supplant 


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1 other tribal, State, and local public funds obligated 

2 for the purposes provided under this section. 

3 SEC. 124. NORTHERN AND SOUTHERN BORDER DRUG PROS4 ECUTION INITIATIVE. 

5 (a) REIMBURSEMENT TO STATE AND LOCAL PROS6 ECUTORS FOR PROSECUTING FEDERALLY INITIATED

7 DRUG CASES.—The Attorney General shall, subject to the 

8 availability of appropriations, reimburse State and county 

9 prosecutors located in States along the Northern or South10 ern border of the United States for prosecuting federally 

11 initiated and referred drug cases. 

12 (b) AUTHORIZATION OF APPROPRIATIONS.—There 

13 are authorized to be appropriated such sums as necessary 

14 for each of the fiscal years 2011 through 2015 to carry 

15 out subsection (a). 

16 SEC. 125. OPERATION STREAMLINE PROSECUTION INITIA17 TIVE. 

18 (a) SUSPENSION OF OPERATION STREAMLINE.—The 

19 Secretary shall suspend the program pending submission 

20 of the report in subsection (b) to the relevant congres21 sional committees in subsection (c) and a revaluation of 

22 the program’s future viability. 

23 (b) REPORTING REQUIREMENT.—Not later than 180 

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1 torney General, shall submit a report to the relevant con2 gressional committees set forth in subsection (c) that pro3 vides details about— 

4 (1) operational goals and oversight mechanisms 

5 of ‘‘Operation Streamline’’ and similar programs; 

6 (2) costs of seeking Federal court prosecution 

7 and jail time for all illegal entrants prior to referral 

8 to immigration court removal proceedings, as com9 pared to initial referral of such entrants to immigra10 tion courts upon apprehension; 

11 (3) costs of detentions, prosecutions, and incar12 cerations for immigrant offenses under Operation 

13 Streamline programs over the three years prior to 

14 enactment of this Act; 

15 (4) cost estimates for federal resources that 

16 would be necessary to implement Operation Stream17 line effectively in each Border Patrol sector, includ18 ing sufficient judicial resources, Federal Public De19 fenders, U.S. Marshals, detention facilities, United 

20 States Attorneys, and costs already being incurred 

21 in active areas; 

22 (5) the impact of Operation Streamline pro23 grams on federal prosecutorial initiatives focused on 

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1 dering or other financial offenses to disrupt the il2 licit firearms trade, human smuggling, and cross3 border drug and currency trafficking; 

4 (6) the impact of Operation Streamline pro5 grams on discretionary prosecutorial decisions; 

6 (7) the numbers of Federal prosecutions for 

7 drug trafficking, human smuggling, white-collar, 

8 civil rights, environmental, and other criminal cases 

9 over the three years prior to enactment of this Act 

10 in areas utilizing Operation Streamline initiatives; 

11 (8) lengths of imprisonment, names, convic12 tions, and locations of prisons used for those ar13 rested under Operation Streamline programs over 

14 the three years prior to enactment of this Act; 

15 (9) Federal convictions obtained under Oper16 ation Streamline including number of non-violent 

17 immigration offenses; 

18 (10) comparison of rates of Federal prosecu19 tions and convictions in districts along the southern 

20 border in relation to other districts nationwide; and 

21 (11) interviews with criminal defense attorneys 

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1 torneys prior to conviction, and the ratio of defend2 ants to defense attorneys. 

3 (c) RELEVANT CONGRESSIONAL COMMITTEES IN

4 THIS SECTION.— 

5 (1) The Committee on Appropriations of the 

6 Senate. 

7 (2) The Committee on the Judiciary of the Sen8 ate. 

9 (3) The Committee on Appropriations of the 

10 House of Representatives. 

11 (4) The Committee on the Judiciary of the 

12 House of Representatives. 

13 (5) The Committee on Homeland Security and 

14 Governmental Affairs of the Senate. 

15 (6) The Committee on Homeland Security of 

16 the House of Representatives. 

17 (d) RE-EVALUATION OF PROGRAM.—The Secretary 

18 of Homeland Security, in coordination with the Attorney 

19 General, shall have 180 additional days, after submission 

20 of the report in subsection (b) to the relevant congres21 sional committees, to re-evaluate the future viability of the 

22 program. At the end of the 180 day period, the Secretary 

23 shall determine whether to continue or terminate the pro24 gram. 


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1 SEC. 126. PROJECT GUNRUNNER. 

2 (a) IN GENERAL.—The Attorney General shall dedi3 cate and expand the resources provided for the Project 

4 Gunrunner initiative of the Bureau of Alcohol, Tobacco, 

5 Firearms, and Explosives to identify, investigate, and 

6 prosecute individuals involved in the trafficking of fire7 arms across the international border between the United 

8 States and Mexico. 

9 (b) ACTIVITIES.—In carrying out this section, the At10 torney General shall 

11 (1) assign additional agents of the Bureau of 

12 Alcohol, Tobacco, Firearms, and Explosives to the 

13 area of the United States adjacent to the inter14 national border between the United States and Mex15 ico to support the expansion of Project Gunrunner 

16 teams; 

17 (2) establish not fewer than one Project Gun18 runner team in each State along the international 

19 border between the United States and Mexico; and 

20 (3) coordinate with the heads of other relevant 

21 Federal law enforcement agencies and State and 

22 local law enforcement agencies to address firearms 

23 trafficking in a comprehensive manner. 

24 (c) ADDITIONAL STAFF.—The Attorney General may 

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1 sives agents for, and otherwise expend additional resources 

2 needed to adequately support, Project Gunrunner. 

3 (d) AUTHORIZATION OF APPROPRIATIONS.—There is 

4 authorized to be appropriated $15,000,000 for each of fis5 cal years 2011 and 2015 to carry out this section. 

6 SEC. 127. OPERATION ARMAS CRUZADAS. 

7 (a) IN GENERAL.—In accordance with subsection (b), 

8 the Secretary of Homeland Security shall dedicate and ex9 pand the resources provided for Operation Armas 

10 Cruzadas of United States Immigration and Customs En11 forcement (ICE) to identify, investigate, and prosecute in12 dividuals involved in the trafficking and smuggling of fire13 arms across the international border between the United 

14 States and Mexico. 

15 (b) RESOURCES.—To achieve the goal described in 

16 subsection (a), the Secretary of Homeland Security 

17 shall— 

18 (1) increase the number of ICE agents assigned 

19 to Operation Armas Cruzadas over the number of 

20 such agents who are so assigned as of the date of 

21 the enactment of this section; 

22 (2) increase the number of Border Enforcement 

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1 tioned as of the date of the enactment of this sec2 tion; and 

3 (3) coordinate with the heads of other relevant 

4 Federal, State, and local law enforcement agencies 

5 to address firearms trafficking in a comprehensive 

6 manner. 

7 (c) AUTHORIZATION OF APPROPRIATIONS.—There is 

8 authorized to be appropriated $15,000,000 for each of fis9 cal years 2011 and 2012 to carry out this section. 

10 SEC. 128. COMBATING HUMAN SMUGGLING. 

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

12 develop and implement a plan to improve coordination 

13 among United States Immigration and Customs Enforce14 ment and United States Customs and Border Protection 

15 and any other Federal, State, local, or tribal authorities, 

16 as determined appropriate by the Secretary, to improve 

17 coordination efforts to combat human smuggling. 

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

19 subsection (a), the Secretary shall consider— 

20 (1) the interoperability of databases utilized to 

21 prevent human smuggling; 

22 (2) adequate and effective personnel training, 

23 including methods to ascertain crime victims and 

24 vulnerable populations as described in subtitle B of 

25 this title; 


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1 (3) methods and programs to effectively target 

2 networks that engage in such smuggling; 

3 (4) effective utilization of— 

4 (A) visas for victims of trafficking and 

5 other crimes; and 

6 (B) investigatory techniques, equipment, 

7 and procedures that prevent, detect, and pros8 ecute international money laundering and other 

9 operations that are utilized in smuggling; 

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

11 to enhance intelligence sharing and cooperation with 

12 foreign governments whose citizens are preyed on by 

13 human smugglers; and 

14 (6) other measures that the Secretary considers 

15 appropriate to combat human smuggling. 

16 (c) REPORT.—Not later than one year after imple17 menting the plan described in subsection (a), the Sec18 retary shall submit to Congress a report on such plan, in19 cluding any recommendations for legislative action to im20 prove efforts to combating human smuggling. 

21 SEC. 129. REPORT ON DEATHS AND STRATEGY STUDY. 

22 (a) IN GENERAL.—The Commissioner of the United 

23 States Customs and Border Protection shall do the fol24 lowing: 


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1 (1) COLLECTION OF STATISTICS.—Collect sta2 tistics relating to deaths occurring at the border be3 tween the United States and Mexico, including— 

4 (A) the causes of the deaths; and 

5 (B) the total number of deaths. 

6 (2) PUBLICATION OF STATISTICS.—Publish the 

7 statistics collected in paragraph (1) quarterly. 

8 (3) REPORT.—Not later than 1 year after the 

9 date of enactment of this Act, and annually there10 after, submit to the Secretary a report that— 

11 (A) analyzes trends with respect to the sta12 tistics collected under subsection (a) during the 

13 preceding year; and 

14 (B) recommends actions to reduce and pre15 vent the deaths described in subsection (a). 

16 (b) SOUTHWEST BORDER STRATEGY STUDY & ANAL17 YSIS.—The Secretary shall conduct a study of Southwest 

18 Border Enforcement operations since 1994 and its rela19 tionship to death rates on the US-Mexico border. 

20 (1) SUBSTANCE.—The study shall include— 

21 (A) an analysis on the relationship of bor22 der enforcement and deaths on the border; 

23 (B) an analysis of whether physical bar24 riers, technology, and enforcement programs 

25 have contributed to the rate of migrant deaths; 


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1 (C) an analysis of the effectiveness of geo2 graphical terrain as a natural barrier for entry 

3 into the United States in achieving Department 

4 goals and its role in contributing to rates of mi5 grant deaths; and 

6 (D) consultation with nongovernmental or7 ganizations and other community stakeholders 

8 involved in recovering and identifying migrant 

9 deaths; and 

10 (E) an assessment of existing protocol re11 lated to reporting, tracking and inter-agency 

12 communications between CBP and local first 

13 responders and consular services. 

14 (2) REPORT.—The studies shall be submitted 

15 to— 

16 (3) the United States-Mexico Border Enforce17 ment Commission as established in section 130; 

18 (4) the Committee on Homeland Security and 

19 Governmental Affairs and the Committee on the Ju20 diciary of the Senate; 

21 (5) the Committee on Homeland Security and 

22 the Committee on the Judiciary of the House of 

23 Representatives; and 

24 (6) the Committee on Oversight and Govern25 ment Reform of the House of Representatives. 


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1 (c) AUTHORIZATION OF APPROPRIATIONS.—There 

2 are authorized to be appropriated such sums as are nec3 essary to carry out this section. 

4 SEC. 130. UNITED STATES-MEXICO BORDER ENFORCEMENT 

5 COMMISSION. 

6 (a) ESTABLISHMENT OF COMMISSION.— 

7 (1) IN GENERAL.—There is established an inde8 pendent commission to be known as the Immigration 

9 and United States-Mexico Border Enforcement 

10 Commission (referred to in this section as the ‘‘Com11 mission’’). 

12 (2) PURPOSES.—The purposes of the Commis13 sion are— 

14 (A) to study the overall enforcement strat15 egies, programs and policies of Federal agencies 

16 along the United States-Mexico border, includ17 ing the Department of Homeland Security, Jus18 tice and other relevant agencies; 

19 (B) to strengthen relations and collabora20 tion between communities in the border regions 

21 and the Department of Homeland Security, 

22 Justice and other Federal agencies that carry 

23 out such strategies, programs and policies; 

24 (C) to ensure the strategies, programs and 

25 policies of Federal agencies along the United 


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1 States-Mexico border and the agents and em2 ployees charged to implement them protect the 

3 due process and civil and human rights of all 

4 individuals and communities at and near the 

5 border; and 

6 (D) to make recommendations to the 

7 President and Congress with respect to such 

8 strategies, programs, and policies. 

9 (3) MEMBERSHIP.—The Commission shall be 

10 composed of 16 voting members, who shall be ap11 pointed as follows: 

12 (A) The Governors of the States of Cali13 fornia, New Mexico, Arizona, and Texas shall 

14 each appoint 4 voting members of whom— 

15 (i) 1 shall be a local elected official 

16 from the State’s border region; 

17 (ii) 1 shall be a local law enforcement 

18 official from the State’s border region; and 

19 (iii) 2 shall be from the State’s com20 munities of academia, religious leaders, 

21 civic leaders or community leaders. 

22 (B) 2 nonvoting members, of whom— 

23 (i) 1 shall be appointed by the Sec24 retary; and 


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1 (ii) 1 shall be appointed by the Attor2 ney General. 

3 (4) QUALIFICATIONS.— 

4 (A) IN GENERAL.—Members of the Com5 mission shall be— 

6 (i) individuals with expertise in migra7 tion, border enforcement and protection, 

8 civil and human rights, community rela9 tions, cross-border trade and commerce or 

10 other pertinent qualifications or experience; 

11 and 

12 (ii) representative of a broad cross 

13 section of perspectives from the region 

14 along the international border between the 

15 United States and Mexico. 

16 (B) POLITICAL AFFILIATION.—Not more 

17 than 2 members of the Commission appointed 

18 by each Governor under paragraph (3)(A) may 

19 be members of the same political party. 

20 (C) NONGOVERNMENTAL APPOINTEES.— 

21 An individual appointed as a voting member to 

22 the Commission may not be an officer or em23 ployee of the Federal Government. 

24 (5) DEADLINE FOR APPOINTMENT.—All mem25 bers of the Commission shall be appointed not later 


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1 than 6 months after the enactment of this Act. If 

2 any member of the Commission described in para3 graph (3)(A) is not appointed by such date, the 

4 Commission shall carry out its duties under this sec5 tion without the participation of such member. 

6 (6) TERM OF SERVICE.—The term of office for 

7 members shall be for the life of the Commission, or 

8 3 years, whichever is shorter. 

9 (7) VACANCIES.—Any vacancy in the Commis10 sion shall not affect its powers, but shall be filled in 

11 the same manner in which the original appointment 

12 was made. 

13 (8) MEETINGS.— 

14 (A) INITIAL MEETING.—The Commission 

15 shall meet and begin the operations of the Com16 mission as soon as practical. 

17 (B) SUBSEQUENT MEETINGS.—After its 

18 initial meeting, the Commission shall meet upon 

19 the call of the chairman or a majority of its 

20 members. 

21 (C) OUTREACH.—The Commission shall 

22 formulate and implement an effective outreach 

23 strategy to border communities. 

24 (9) QUORUM.—Nine members of the Commis25 sion shall constitute a quorum. 


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1 (10) CHAIR AND VICE CHAIR.—The voting 

2 members of the Commission shall elect a Chairman 

3 and Vice Chairman from among its members. The 

4 term of office shall be for the life of the Commission 

5 or by a vote of a minimum of quorum members of 

6 the Commission. 

7 (11) STRUCTURE.—The Review Commission 

8 will have a Federal, regional and local review struc9 ture, and will be divided into two subcommittees— 

10 one focused on border technology, equipment and in11 frastructure, and a second to focus on border and 

12 immigration enforcement policies and programs. 

13 (b) DUTIES.—The Commission shall review, examine, 

14 and make recommendations regarding immigration and 

15 border enforcement policies, strategies, and programs, in16 cluding recommendations regarding— 

17 (1) the compliance of the Department of Home18 land Security and other immigration and border-re19 lated agencies with existing laws and regulations; 

20 (2) the extent to which agency policies and 

21 practices protect the civil rights of migrants and 

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1 able suspicion and probable cause, and racial 

2 profiling; 

3 (3) the frequency, adequacy and effectiveness of 

4 human and civil rights training of border enforce5 ment personnel and others from Federal agencies 

6 who have contact with the public in the border re7 gions; 

8 (4) the complaint process and the extent to 

9 which the process is transparent and accessible to 

10 the public, investigations are opened as necessary 

11 and effectively pursued and complaints are resolved 

12 in a timely and transparent manner; 

13 (5) the effectiveness and capacity of agency 

14 oversight, accountability, and management including 

15 prevention and disciplinary policies involving use of 

16 force, abuse, malfeasance, corruption and illegal ac17 tivity, 

18 (6) the effect of operations, technology, and en19 forcement infrastructure along such border on the— 

20 (A) environment; 

21 (B) crossborder traffic and commerce; 

22 (C) privacy rights and other civil liberties; 

23 and 

24 (D) the quality of life of border commu25 nities; 


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1 (7) the extent to which State and local law en2 forcement engage in the enforcement of Federal im3 migration law; 

4 (8) the extent of compliance with due process 

5 standards and equal protection of the law for immi6 grants and other individuals at and near the border; 

7 (9) whether border policies and agencies are ac8 complishing their stated goals; and 

9 (10) any other matters regarding immigration 

10 and border enforcement policies, strategies, and pro11 grams the Commission determines appropriate. 

12 (c) POWERS OF COMMISSION.— 

13 (1) IN GENERAL.— 

14 (A) HEARINGS AND EVIDENCE.—The 

15 Commission or, on the authority of the Com16 mission, any subcommittee or member thereof, 

17 may, for the purpose of carrying out this title— 

18 (i) hold such hearings and sit and act 

19 at such times and places, take such testi20 mony, receive such evidence, administer 

21 such oaths; and 

22 (ii) subject to paragraph (2)(A), re23 quire, by subpoena or otherwise, the at24 tendance and testimony of such witnesses 

25 and the production of such books, records, 


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1 correspondence, memoranda, papers, and 

2 documents, as the Commission or such 

3 designated subcommittee or designated 

4 member may determine advisable. 

5 (B) SUBPOENAS.— 

6 (i) ISSUANCE.—A subpoena may be 

7 issued under this subsection only— 

8 (I) by the agreement of the 

9 chairman and the vice chairman; or 

10 (II) by the affirmative vote of 6 

11 members of the Commission. 

12 (ii) SIGNATURE.—Subject to clause 

13 (i), subpoenas issued under this subsection 

14 may be issued under the signature of the 

15 chairman or any member designated by a 

16 majority of the Commission, and may be 

17 served by any person designated by the 

18 chairman or by a member designated by a 

19 majority of the Commission. 

20 (iii) ENFORCEMENT.—In the case of 

21 contumacy or failure to obey a subpoena 

22 issued under subsection (a), the United 

23 States district court for the judicial district 

24 in which the subpoenaed person resides, is 

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1 poena is returnable, may issue an order re2 quiring such person to appear at any des3 ignated place to testify or to produce docu4 mentary or other evidence. Any failure to 

5 obey the order of the court may be pun6 ished by the court as a contempt of that 

7 court. 

8 (2) RECOMMENDATIONS.— 

9 (A) The Commission has the ability to 

10 make recommendations to the Secretary of 

11 Homeland Security on the disposition of cases 

12 and discipline of personnel under the Immigra13 tion and Naturalization Act. 

14 (B) Within 180 days of receipt of a Com15 mission report, the Secretary of Homeland Se16 curity shall issue a response, which shall de17 scribe how the Department of Homeland Secu18 rity, the Department of Justice, and the De19 partment of Defense have addressed the rec20 ommendation. 

21 (3) CONTRACTING.—The Commission may, to 

22 such extent and in such amounts as are provided in 

23 appropriation Acts, enter into contracts to enable 

24 the Commission to discharge its duties under this 

25 title. 


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1 (4) INFORMATION FROM FEDERAL AGENCIES.— 

2 (A) IN GENERAL.—The Commission is au3 thorized to secure directly from any executive 

4 department, bureau, agency, board, commission, 

5 office, independent establishment, or instrumen6 tality of the Government, information, sugges7 tions, estimates, and statistics for the purposes 

8 of this title. Each department, bureau, agency, 

9 board, commission, office, independent estab10 lishment, or instrumentality shall, to the extent 

11 authorized by law, furnish such information, 

12 suggestions, estimates, and statistics directly to 

13 the Commission, upon request made by the 

14 chairman, the chairman of any subcommittee 

15 created by a majority of the Commission, or 

16 any member designated by a majority of the 

17 Commission. 

18 (B) RECEIPT, HANDLING, STORAGE, AND

19 DISSEMINATION.—Information shall only be re20 ceived, handled, stored, and disseminated by 

21 members of the Commission and its staff con22 sistent with all applicable statutes, regulations, 

23 and Executive orders. 

24 (5) ASSISTANCE FROM FEDERAL AGENCIES.— 


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1 (A) GENERAL SERVICES ADMINISTRA2 TION.—The Administrator of General Services 

3 shall provide to the Commission on a reimburs4 able basis administrative support and other 

5 services for the performance of the Commis6 sion’s functions. 

7 (B) OTHER DEPARTMENTS AND AGEN8 CIES.—In addition to the assistance prescribed 

9 in paragraph (1), departments and agencies of 

10 the United States may provide to the Commis11 sion such services, funds, facilities, staff, and 

12 other support services as they may determine 

13 advisable and as may be authorized by law. 

14 (6) POSTAL SERVICES.—The Commission may 

15 use the United States mails in the same manner and 

16 under the same conditions as departments and agen17 cies of the United States. 

18 (d) COMPENSATION.— 

19 (1) IN GENERAL.—Members of the Commission 

20 shall serve without pay. 

21 (2) REIMBURSEMENT OF EXPENSES.—All mem22 bers of the Commission shall be reimbursed for rea23 sonable travel expenses and subsistence, and other 

24 reasonable and necessary expenses incurred by them 

25 in the performance of their duties. 


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1 (e) TRAINING.—The Commission shall establish a 

2 process and criteria by which Commission members re3 ceive orientation and training on human, constitutional 

4 and civil rights. 

5 (f) REPORT.—Not later than 2 years after the date 

6 of the first meeting called pursuant to (a)(8)(A), the Com7 mission shall submit a report to the President and Con8 gress that contains— 

9 (1) findings with respect to the duties of the 

10 Commission; 

11 (2) recommendations regarding border and im12 migration enforcement policies, strategies, and pro13 grams; 

14 (3) suggestions for the implementation of the 

15 Commission’s recommendations; and 

16 (4) a recommendation as to whether the Com17 mission should continue to exist after the date of 

18 termination described in subsection (g), and if so, a 

19 description of the purposes and duties recommended 

20 to be carried out by the Commission after such date. 

21 (g) AUTHORIZATION OF APPROPRIATIONS.—There 

22 are authorized to be appropriated such sums as may be 

23 necessary to carry out this section. 

24 (h) SUNSET.—Unless the Commission is re-author25 ized by Congress, the Commission shall terminate on the 


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1 date that is 60 days after the date the Commission sub2 mits the report described in subsection (f). 

3 SEC. 131. PROHIBITION ON MILITARY INVOLVEMENT IN 

4 NONEMERGENCY BORDER ENFORCEMENT. 

5 (a) IN GENERAL.—The Armed Forces of the United 

6 States, including the National Guard, are prohibited from 

7 assisting in Federal, State and local and civilian law en8 forcement of immigration laws. 

9 (b) EXCEPTION.—The Armed Forces of the United 

10 States, including the National Guard may assist in Fed11 eral, State and local and civilian law enforcement of immi12 gration laws when the President of the United States has 

13 declared a national emergency or when required for spe14 cific counter-terrorism duties. In the case that, Armed 

15 Forces of the United States, including the National Guard 

16 are required to perform such duties, those duties in sup17 port of Federal, State and local and civilian law enforce18 ment of immigration laws shall be limited to— 

19 (1) rear echelon support duties, including 

20 logistical support, construction, and intelligence col21 lection from positions at least 25 miles from the bor22 der; 

23 (2) nonarmed operations within 25 miles of the 

24 border, including listening posts and observation 

25 post operations; and 


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1 (3) armed operations outside 25 miles of the 

2 border, including listening posts and observation 

3 post operations. 

4 (c) REPORT.—The Secretary shall submit on an an5 nual basis a report to Congress that details the involve6 ment of the Armed Forces in border security and the en7 forcement of Federal immigration laws. 

8 SEC. 132. DEFINITIONS. 

9 For sections 124 through 128: 

10 (a) INDIAN TRIBE.—The term ‘‘Indian tribe’’ has the 

11 meaning given such term in section 4 of the Indian Self12 Determination and Education Assistance Act (25 U.S.C. 

13 450b). 

14 (b) SECRETARY CONCERNED.—The term ‘‘Secretary 

15 concerned’’ means the Secretary of Agriculture with re16 spect to land under the jurisdiction of the Secretary of 

17 Agriculture, the Secretary of the Interior with respect to 

18 land under the jurisdiction of the Secretary of the Interior, 

19 the Secretary of Defense with respect to land under the 

20 jurisdiction of the Secretary of Defense or the secretary 

21 of a military department, or the Secretary of Commerce 

22 with respect to land under the jurisdiction of the Secretary 

23 of Commerce. 


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1 SEC. 133. BORDER PROTECTION STRATEGY. 

2 (a) IN GENERAL.—Not later than September 30, 

3 2010, the Secretary, the Secretary of the Interior, the Sec4 retary of Agriculture, the Secretary of Defense, and the 

5 Secretary of Commerce, in consultation with tribal, State, 

6 and local officials, shall jointly develop and submit to Con7 gress a border protection strategy for the international 

8 land borders of the United States. 

9 (b) ELEMENTS OF THE STRATEGY.—The strategy 

10 developed in accordance with subsection (a) shall include 

11 the following components: 

12 (1) A comparative analysis of the levels of oper13 ational control, based on auditable and verifiable 

14 data, achievable through alternative tactical infra15 structure and other security measures. Measures as16 sessed shall include, at a minimum— 

17 (A) pedestrian fencing; 

18 (B) vehicle barriers, especially in the vicin19 ity of existing or planned roads; 

20 (C) additional Border Patrol agents; 

21 (D) efficacy of natural barriers and open 

22 space in response to unauthorized or unlawful 

23 border crossing; 

24 (E) fielding of advanced remote sensing 

25 and information integration technology, includ26 ing the use of unmanned aerial vehicles and 


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1 other advanced technologies and systems, in2 cluding systems developed and employed, or 

3 under development, for tactical surveillance, 

4 multisource information integration, and re5 sponse analysis in difficult terrain and under 

6 adverse environmental conditions; 

7 (F) regional as well as urban and rural 

8 variation in border security methodologies, and 

9 incorporation of natural barriers; 

10 (G) enhanced cooperation with, and assist11 ance to, intelligence, security, and law enforce12 ment agencies in Mexico and Canada in detect13 ing, reporting, analyzing, and successfully re14 sponding to unauthorized or unlawful border 

15 crossings from or into Mexico or Canada; and 

16 (H) removal of obstructive non-native vege17 tation. 

18 (2) A comprehensive analysis of cost and other 

19 impacts of security measures assessed in paragraph 

20 (1), including an assessment of— 

21 (A) land acquisition costs, including re22 lated litigation and other costs; 

23 (B) construction costs, including both 

24 labor and material costs; 

25 (C) maintenance costs over 25 years; 


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1 (D) contractor costs; 

2 (E) management and overhead costs; 

3 (F) the impacts on wildlife, wildlife habi4 tat, natural communities, and functioning cross5 border wildlife migration corridors and hydrol6 ogy (including water quantity, quality, and nat7 ural hydrologic flows) on Federal, tribal, State, 

8 local, and private lands along the border; and 

9 (G) costs of fully mitigating the adverse 

10 impacts to Federal, tribal, State, local, and pri11 vate lands, waters (including water quality, 

12 quantity, and hydrological flows), wildlife, and 

13 wildlife habitats, including, where such action is 

14 possible, the full costs of the replacement or 

15 restoration of severed wildlife migration cor16 ridors with protected corridors of equivalent bi17 ological functionality, as determined by each 

18 Secretary concerned, in consultation with ap19 propriate authorities of tribal, State, and local 

20 governments and appropriate authorities of 

21 Mexico and Canada. 

22 (3) A comprehensive compilation of the fiscal 

23 investments in acquiring or managing Federal, trib24 al, State, local, and private lands and waters in the 

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1 ders of the United States that have been acquired or 

2 managed in whole or in part for conservation pur3 poses (including the creation or management of pro4 tected wildlife migration corridors) in— 

5 (A) units of the National Park System; 

6 (B) National Forest System land; 

7 (C) land under the jurisdiction of the Bu8 reau of Land Management; 

9 (D) land under the jurisdiction of the 

10 United States Fish and Wildlife Service; 

11 (E) other relevant land under the jurisdic12 tion of the Department of the Interior or the 

13 Department of Agriculture; 

14 (F) land under the jurisdiction of the De15 partment of Defense or the individual military 

16 department; 

17 (G) land under the jurisdiction of the De18 partment of Commerce; 

19 (H) tribal lands; 

20 (I) State and private lands; and 

21 (J) lands within Mexico and Canada. 

22 (4) Recommendations for strategic border secu23 rity management based on comparative security as 

24 detailed in paragraph (1), the cost-benefit analysis 

25 as detailed in paragraph (2), as well as protection of 


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1 investments in public lands specified in paragraph 

2 (3). 

3 (c) TRAINING.— 

4 (1) REQUIRED TRAINING.—The Secretary, in 

5 cooperation with the Secretary concerned, shall pro6 vide— 

7 (A) natural resource protection training for 

8 Customs and Border Protection agents or other 

9 Federal personnel assigned to plan or oversee 

10 the construction or operation of border security 

11 tactical infrastructure or to patrol land along or 

12 in the vicinity of a land border of the United 

13 States; and 

14 (B) cultural resource training for Customs 

15 and Border Protection agents and other Fed16 eral personnel assigned to plan or oversee the 

17 construction or operation of border security tac18 tical infrastructure or to patrol tribal lands. 

19 (2) ADDITIONAL CONSIDERATIONS.—In devel20 oping and providing training under subparagraph 

21 (A) of paragraph (1), the Secretary shall coordinate 

22 with the Secretary concerned and the relevant tribal 

23 government to ensure that such training is appro24 priate to the mission of the relevant agency and is 

25 focused on achieving border security objectives while 


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1 avoiding or minimizing the adverse impact on nat2 ural and cultural resources resulting from border se3 curity tactical infrastructure, operations, or other 

4 activities. 

5 SEC. 134. ACTIONS TO FURTHER SECURE OPERATIONAL 

6 CONTROL OF THE INTERNATIONAL LAND 

7 BORDERS OF THE UNITED STATES. 

8 (a) IN GENERAL.—Section 102 of the Illegal Immi9 gration Reform and Immigrant Responsibility Act of 1996 

10 (Public Law 104–208; 8 U.S.C. 1103 note) is amended 

11 to read as follows: 

12 ‘‘SEC. 102. IMPROVEMENT OF OPERATIONAL CONTROL OF 

13 BORDER. 

14 ‘‘(a) IN GENERAL.—The Secretary of Homeland Se15 curity shall take such actions as may be required to gain 

16 operational control of the international land borders of the 

17 United States. Such actions may be taken only in accord18 ance with the border protection strategy developed under 

19 section 124(a). 

20 ‘‘(b) PRIORITY OF METHODS.—In carrying out the 

21 requirements of subsection (a), the Secretary of Homeland 

22 Security shall, where practicable, give first priority to the 

23 use of remote cameras, sensors, removal of nonnative 

24 vegetation, incorporation of natural barriers, additional 


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1 manpower, unmanned aerial vehicles, or other low impact 

2 border enforcement techniques. 

3 ‘‘(c) CONSULTATION.— 

4 ‘‘(1) IN GENERAL.—In carrying out this sec5 tion, the Secretary of Homeland Security shall con6 sult with the Secretary of the Interior, the Secretary 

7 of Agriculture, the Secretary of Defense, Secretary 

8 of Commerce, States, local governments, tribal gov9 ernments, and private property owners in the United 

10 States to minimize the impact on the environment, 

11 culture, commerce, safety, and quality of life for the 

12 communities and residents located near the sites at 

13 which actions under subsection (a) are proposed to 

14 be taken. 

15 ‘‘(2) RULE OF CONSTRUCTION.—Nothing in 

16 this subsection may be construed to— 

17 ‘‘(A) create or negate any right of action 

18 for a State, local government, tribal govern19 ment, or other person or entity affected by this 

20 subsection; 

21 ‘‘(B) affect the eminent domain laws of the 

22 United States or of any State; or 

23 ‘‘(C) waive the application of any other ap24 plicable Federal, State, local, or tribal law. 


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1 ‘‘(3) LIMITATION ON REQUIREMENTS.—Not2 withstanding subsection (a), nothing in this section 

3 shall require the Secretary of Homeland Security to 

4 install fencing, physical barriers, roads, lighting, 

5 cameras, or sensors in a particular location along an 

6 international border of the United States if the Sec7 retary determines that the use or placement of such 

8 resources is not the most effective and appropriate 

9 means to achieve and maintain operational control 

10 over the international border at such location, or if 

11 the Secretary determines that the direct and indirect 

12 costs of or the impacts on the environment, culture, 

13 commerce, safety, or quality of life for the commu14 nities and residents along the border likely to result 

15 from the use or placement of such resources out16 weigh the benefits of such use or placement.’’. 

17 (b) PRECONDITIONS.—In fulfilling the requirements 

18 of section 102 of the Illegal Immigration Reform and Im19 migrant Responsibility Act of 1996, as amended by this 

20 section, the Secretary of Homeland Security shall not com21 mence any construction of fencing, physical barriers, 

22 roads, lighting, cameras, sensors, or other tactical infra23 structure along or in the vicinity of an international land 

24 border of the United States, or award or expend funds 

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1 to, prior to 90 days following the submission to Congress 

2 of the border protection strategy required under section 

3 133(a) of this subtitle. 

4 SEC. 135. BORDERLANDS MONITORING AND MITIGATION. 

5 (a) IN GENERAL.—The Secretary, in consultation 

6 with the Secretary of the Interior, the Secretary of Agri7 culture, the Secretary of Defense, the Secretary of Com8 merce, and the heads of appropriate State and tribal wild9 life agencies and entities, shall develop and implement a 

10 comprehensive monitoring and mitigation plan to address 

11 the ecological and environmental impacts of border secu12 rity infrastructure, measures, and activities along the 

13 international land borders of the United States. 

14 (b) REQUIREMENTS.—The mitigation plan required 

15 under subsection (a) shall include, at a minimum, meas16 ures to address and mitigate the full range of ecological 

17 and environmental impacts of border security infrastruc18 ture, measures, and activities, including— 

19 (1) preserving, maintaining, and, if necessary, 

20 restoring wildlife migration corridors, key habitats, 

21 and the ecologically functional connectivity between 

22 and among key habitats sufficient to ensure that 

23 species (whether or not designated as rare, pro24 tected, or of concern) remain viable and are able to 

25 adapt to the impacts of climate change; 


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1 (2) addressing control of invasive species and 

2 implementing measures necessary to avoid the 

3 spread of such species; 

4 (3) maintaining hydrological functionality, in5 cluding water quantity and quality; 

6 (4) incorporating adaptive management, includ7 ing detailed provisions for long-term monitoring of 

8 the mitigation plan’s effectiveness and for necessary 

9 adjustments to such plan based on such monitoring 

10 results; and 

11 (5) protection of cultural and historical re12 sources. 

13 (c) PREEMPTION.— 

14 (1) IN GENERAL.—Notwithstanding any other 

15 provision of law, the Secretary may, subject to para16 graph (2), carry out the mitigation plan required 

17 under subsection (a) on any Federal, State, local, 

18 tribal, or private lands in the vicinity of or eco19 logically related to an international land border of 

20 the United States regardless of which individual, 

21 agency, or entity has ownership of or principal re22 sponsibility for the management of any such lands. 

23 (2) CONDITIONS.—Activities carried out pursu24 ant to paragraph (1) in connection with the mitiga25 tion plan shall be carried out in full consultation 


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1 with, and with the concurrence of, the owner of, or 

2 entity with principal responsibility for, the manage3 ment of the lands described in such paragraph. 

4 (d) ADMINISTRATION.— 

5 (1) AUTHORIZATION.—The Secretary of Home6 land Security may transfer funds of the Department 

7 of Homeland Security to other Federal agencies 

8 for— 

9 (A) expenditure under programs (including 

10 any international programs) of such agencies 

11 that are designed to fund conservation related 

12 activities (directly or through grants or similar 

13 mechanisms) on non-Federal lands, including 

14 land acquisition programs; and 

15 (B) mitigation activities on Federal lands 

16 managed by such agencies, if such activities are 

17 required to implement the mitigation plan re18 quired under subsection (a) and if the costs of 

19 such activities are higher than the costs associ20 ated with managing such lands in the absence 

21 of such activities. 

22 (2) EXEMPTION FROM REPROGRAMMING RE23 QUIREMENTS.—Funds transferred pursuant to the 

24 authorization under paragraph (1) shall not be sub25 ject to reprogramming requirements. 


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1 (3) ACCEPTANCE AND USE OF DONATIONS.— 

2 The Secretary may accept and use donations for the 

3 purpose of developing and implementing the mitiga4 tion plan required under subsection (a), and may 

5 transfer such funds to any other Federal agency for 

6 expenditure under such plan pursuant to paragraph 

7 (1). 

8 (e) AUTHORIZATION OF APPROPRIATIONS.—Notwith9 standing any other provision of law, funds appropriated 

10 to the Department of Homeland Security for border secu11 rity infrastructure and activities may be used by the Sec12 retary to develop and implement the mitigation plan re13 quired under subsection (a). 

14 SEC. 136. BORDER COMMUNITIES LIAISON OFFICE. 

15 (a) ESTABLISHMENT.—The Secretary shall establish, 

16 in consultation with the Office of Civil Rights and Civil 

17 Liberties, a Border Communities Liaison Office in every 

18 border patrol sector at the southern and northern borders. 

19 (b) PURPOSE.—The purpose of the Border Commu20 nities Liaison Office shall be— 

21 (1) to foster and institutionalize consultation 

22 with border communities; 

23 (2) to consult with border communities on 

24 agency policies, directives and laws; 


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1 (3) to consult with border communities on 

2 agency strategies and strategy development; 

3 (4) to consult with border communities on 

4 agency services and operational issues; 

5 (5) to receive assessments on agency perform6 ance from border communities; and 

7 (6) to receive complaints regarding agency per8 formance and agent conduct. 

9 (c) AUTHORIZATION OF APPROPRIATIONS.—There 

10 are authorized to be appropriated such sums as are nec11 essary to carry out this section. 

12 SEC. 137. OFFICE OF CIVIL RIGHTS AND CIVIL LIBERTIES 

13 AND OFFICE OF INSPECTOR GENERAL. 

14 There are authorized to be appropriated such sums 

15 as are necessary for the Department’s Office of Inspector 

16 General and the Department’s Office of Civil Rights and 

17 Civil Liberties to be comparable to those of other Federal 

18 agencies and commensurate with the size and scope of the 

19 DHS operational budget. 

20 SEC. 138. IMPROVING PORTS OF ENTRY FOR BORDER SECU21 RITY AND OTHER PURPOSES. 

22 (a) IN GENERAL.—There are authorized to be appro23 priated to the Administrator of the General Services Ad24 ministration such sums as may be necessary for each of 

25 fiscal years 2011 through 2015 to make improvements to 


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1 existing ports of entry in the United States to improve 

2 border security and for other purposes. 

3 (b) PRIORITY.—In making improvements described 

4 in subsection (a), the Administrator of the General Serv5 ices Administration, in coordination with the Commis6 sioner of Customs and Border Protection, shall give pri7 ority to the ports of entry that the Administrator deter8 mines are in most need of repair to improve border secu9 rity and for other purposes in accordance with port of 

10 entry infrastructure assessment studies required in section 

11 603 of title VI, division E, of the Consolidated Appropria12 tions Act of 2008 (Public Law 101–161). 

13 SEC. 139. PORTS OF ENTRY. 

14 (a) IN GENERAL.—In order to aid in the enforcement 

15 of Federal customs, immigration, and agriculture laws, 

16 and national security goals the Customs and Border Pro17 tection Commissioner may— 

18 (1) design, construct, and modify land ports of 

19 entry and other structures and facilities, including 

20 living quarters for officers, agents, and personnel; 

21 (2) acquire, by purchase, donation, or exchange, 

22 land or any interest in land determined to be nec23 essary to carry out the Commissioner’s duties under 

24 this section; and 


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1 (3) construct additional ports of entry along the 

2 southern border and the northern border. 

3 (b) CONSULTATION.— 

4 (1) LOCATIONS FOR NEW PORTS OF ENTRY.— 

5 The Secretary of Homeland Security shall consult 

6 with the Secretary of the Interior, the Secretary of 

7 Agriculture, the Secretary of State, the International 

8 Boundary and Water Commission, the International 

9 Joint Commission, and appropriate representatives 

10 of States, local governments, Indian tribes, and 

11 property owners to— 

12 (A) determine locations for new ports of 

13 entry; and 

14 (B) minimize adverse impacts from such 

15 ports on the environment, historic and cultural 

16 resources, commerce, and quality of life for the 

17 communities and residents located near such 

18 ports. 

19 (2) ACQUISITION OF LEASEHOLD INTEREST.— 

20 The Secretary of Homeland Security may acquire a 

21 leasehold interest in real property, and may con22 struct or modify any facility on the leased property, 

23 if the Secretary determines that the acquisition of 

24 such interest, and such construction or modification, 


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1 are necessary to facilitate the implementation of this 

2 Act. 

3 (3) CONSTRUCTION OF BORDER CONTROL FA4 CILITIES.—Subject to the availability of appropria5 tions, the Secretary may construct all-weather roads 

6 and acquire additional vehicle barriers and facilities 

7 necessary to maintain and enhance operational con8 trol of the international borders of the United 

9 States. 

10 SEC. 140. PORTS OF ENTRY INFRASTRUCTURE AND OPER11 ATIONS ASSESSMENT STUDY. 

12 (a) REQUIREMENT TO UPDATE.—Not later than 

13 January 31 of each year, the Administrator of General 

14 Services shall update the Port of Entry Infrastructure and 

15 Operations Assessment Study prepared by United States 

16 Customs and Border Protection in accordance with the 

17 matter relating to the ports of entry infrastructure assess18 ment that is set out in the joint explanatory statement 

19 in the conference report accompanying H.R. 2490 of the 

20 106th Congress, 1st session (House of Representatives 

21 Rep. No. 106–319, on page 67) and submit such updated 

22 study to Congress. 

23 (b) CONSULTATION.—In preparing the updated stud24 ies required in subsection (a), the Administrator of Gen25 eral Services shall consult with the Director of the Office 


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1 of Management and Budget, the Secretary, and the Com2 missioner of U.S. Customs and Border Protection. 

3 (c) CONTENT.—Each updated study required in sub4 section (a) shall— 

5 (1) identify port of entry infrastructure and 

6 technology improvement projects that would enhance 

7 border security and facilitate the flow of legitimate 

8 travel and commerce if implemented; 

9 (2) identify port operations and practices (to in10 clude, but not be limited to training and staffing lev11 els) that would enhance border security and facili12 tate the flow of legitimate individual travel and com13 merce if implemented; 

14 (3) establish a process to identify and prioritize 

15 needs at ports for shelter from the elements, Ameri16 cans with Disability Act compliance, and related 

17 issues; 

18 (4) include the projects identified in the Na19 tional Land Border Ports of Entry Security Plan re20 quired by section 141; and 

21 (5) prioritize the projects described in para22 graphs (1), (2), (3), and (4) based on the ability of 

23 a project to— 

24 (A) fulfill immediate security requirements; 


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1 (B) facilitate trade across the borders of 

2 the United States; 

3 (C) facilitate individual travel; and 

4 (D) reduce individual and commercial wait 

5 times for pedestrians and vehicles. 

6 (d) PROJECT IMPLEMENTATION.—The Commissioner 

7 shall implement the infrastructure, operations, and tech8 nology improvement projects described in subsection (c) 

9 in the order of priority assigned to each project under 

10 paragraph (3) of such subsection. 

11 (e) DIVERGENCE FROM PRIORITIES.—The Commis12 sioner may diverge from the priority order if the Commis13 sioner determines that significantly changed cir14 cumstances, such as immediate security needs or changes 

15 in infrastructure in Mexico or Canada, compellingly alter 

16 the need for a project in the United States. 

17 SEC. 141. NATIONAL LAND BORDER PORTS OF ENTRY SECU18 RITY PLAN. 

19 (a) IN GENERAL.—Not later than one year after the 

20 date of enactment of this Act, and annually thereafter, 

21 the Secretary, after consultation with representatives of 

22 Federal, State, and local law enforcement agencies and 

23 private entities that are involved in international trade 

24 across Northern or Southern ports of entry, shall submit 


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1 a National Land Border Ports of Entry Security Plan to 

2 Congress. 

3 (b) VULNERABILITY ASSESSMENT.— 

4 (1) IN GENERAL.—The plan required in sub5 section (a) shall include a vulnerability assessment 

6 of each port of entry located on the northern border 

7 or the southern border. 

8 (2) PORT SECURITY COORDINATORS.—The Sec9 retary may establish 1 or more port security coordi10 nators at each port of entry located on the northern 

11 border or the southern border— 

12 (A) to assist in conducting a vulnerability 

13 assessment at such port; and 

14 (B) to provide other assistance with the 

15 preparation of the plan required in subsection 

16 (a). 

17 SEC. 142. PORTS OF ENTRY TECHNOLOGY DEMONSTRATION 

18 PROGRAM. 

19 (a) DEMONSTRATION PROGRAM.—The Secretary 

20 shall carry out 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. 


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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, including weapons of mass destruc15 tion. 

16 (2) DEVELOPMENT OF FACILITIES.—At a dem17 onstration site selected pursuant to subsection 

18 (c)(2), the Secretary shall develop facilities to pro19 vide appropriate training to law enforcement per20 sonnel who have responsibility for border security, 

21 including— 

22 (A) cross-training among agencies; 

23 (B) advanced law enforcement training; 

24 and 

25 (C) equipment orientation. 


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1 (c) DEMONSTRATION SITES.— 

2 (1) NUMBER.—The Secretary shall carry out 

3 the demonstration program at not less than three 

4 sites and not more than five sites. 

5 (2) SELECTION CRITERIA.—To ensure that at 

6 least 1 of the facilities selected as a port of entry 

7 demonstration site for the demonstration program 

8 has the most up-to-date design, contains sufficient 

9 space to conduct the demonstration program, has a 

10 traffic volume low enough to easily incorporate new 

11 technologies without interrupting normal processing 

12 activity, and is able to efficiently carry out dem13 onstration and port of entry operations, at least 1 

14 port of entry selected as a demonstration site shall— 

15 (A) have been established not more than 

16 15 years before the date of enactment of this 

17 Act; 

18 (B) consist of not less than 65 acres, with 

19 the possibility of expansion to not less than 25 

20 adjacent acres; and 

21 (C) have serviced an average of not more 

22 than 50,000 vehicles per month during the one23 year period ending on the date of enactment of 

24 this Act. 


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1 (d) RELATIONSHIP WITH OTHER AGENCIES.—The 

2 Secretary shall permit personnel from an appropriate Fed3 eral or State agency to utilize a demonstration site de4 scribed in subsection (c) to test technologies that enhance 

5 port of entry operations, including technologies described 

6 in subparagraphs (A) through (H) of subsection (b)(1). 

7 (e) REPORT.— 

8 (1) REQUIREMENT.—Not later than one year 

9 after the date of enactment of this Act, and annually 

10 thereafter, the Secretary shall submit to Congress a 

11 report on the activities carried out at each dem12 onstration site under the technology demonstration 

13 program established under this section. 

14 (2) CONTENT.—The report submitted under 

15 paragraph (1) shall include an assessment by the 

16 Secretary of the feasibility of incorporating any dem17 onstrated technology for use throughout United 

18 States Customs and Border Protection. 

19 SEC. 143. REPORTS ON IMPROVING THE EXCHANGE OF IN20 FORMATION ON NORTH AMERICAN SECU21 RITY. 

22 (a) REQUIREMENT FOR REPORTS.—Not later than 

23 one year after the date of enactment of this Act, and an24 nually thereafter, the Secretary of State, in coordination 

25 with the Secretary and the heads of other appropriate 


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1 Federal agencies, shall submit to Congress a report on the 

2 status of improvements to information exchange related 

3 to the security of North America. 

4 (b) CONTENTS.—Each report submitted under sub5 section (a) shall contain a description of the following: 

6 (1) SECURITY CLEARANCES AND DOCUMENT IN7 TEGRITY.—The status of the development of com8 mon enrollment, security, technical, and biometric 

9 standards for the issuance, authentication, valida10 tion, and repudiation of secure documents, includ11 ing— 

12 (A) technical and biometric standards 

13 based on best practices and consistent with 

14 international standards for the issuance, au15 thentication, validation, and repudiation of trav16 el documents, including— 

17 (i) passports; 

18 (ii) visas; and 

19 (iii) permanent resident cards; 

20 (B) working with Canada and Mexico to 

21 encourage foreign governments to enact laws to 

22 combat alien smuggling and trafficking, and 

23 laws to forbid the use and manufacture of 

24 fraudulent travel documents; and 


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1 (C) applying the necessary pressures and 

2 support to ensure that other countries meet 

3 proper travel document standards and are com4 mitted to travel document verification before 

5 the citizens of such countries travel internation6 ally, including travel by such citizens to the 

7 United States. 

8 (2) IMMIGRATION AND VISA MANAGEMENT.— 

9 The progress of efforts to share information regard10 ing high-risk individuals who may attempt to enter 

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

12 progress made— 

13 (A) in implementing the Statement of Mu14 tual Understanding on Information Sharing, 

15 signed by Canada and the United States in 

16 February 2003; and 

17 (B) in identifying trends related to immi18 gration fraud, including asylum and document 

19 fraud, and to analyze such trends. 

20 (3) VISA POLICY COORDINATION AND IMMIGRA21 TION SECURITY.—The progress made by Canada, 

22 Mexico, and the United States to enhance the secu23 rity of North America by cooperating on visa policy 

24 and identifying best practices regarding immigration 

25 security, including the progress made— 


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1 (A) in enhancing consultation among offi2 cials who issue visas at the consulates or em3 bassies of Canada, Mexico, or the United States 

4 throughout the world to share information, 

5 trends, and best practices on visa flows; 

6 (B) in comparing the procedures and poli7 cies of Canada and the United States related to 

8 visitor visa processing, including— 

9 (i) application process; 

10 (ii) interview policy; 

11 (iii) general screening procedures; 

12 (iv) visa validity; 

13 (v) quality control measures; and 

14 (vi) access to appeal or review; 

15 (C) in exploring methods for Canada, Mex16 ico, and the United States to waive visa re17 quirements for nationals and citizens of the 

18 same foreign countries; 

19 (D) 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; 


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1 (E) 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 (F) 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 status of 

16 the capacity of the United States to combat ter17 rorism through the coordination of counterterrorism 

18 efforts, including any progress made— 

19 (A) in developing and implementing bilat20 eral agreements between Canada and the 

21 United States and between Mexico and the 

22 United States to govern the sharing of terrorist 

23 watch list data and to comprehensively enu24 merate the uses of such data by the govern25 ments of each country; 


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1 (B) in establishing appropriate linkages 

2 among Canada, Mexico, and the United States 

3 Terrorist Screening Center; 

4 (C) in exploring with foreign governments 

5 the establishment of a multilateral watch list 

6 mechanism that would facilitate direct coordina7 tion between the country that identifies an indi8 vidual as an individual included on a watch list, 

9 and the country that owns such list, including 

10 procedures that satisfy the security concerns 

11 and are consistent with the privacy and other 

12 laws of each participating country; and 

13 (D) in establishing transparent standards 

14 and processes that enable innocent individuals 

15 to remove their names from a watch list. 

16 (6) MONEY LAUNDERING, CURRENCY SMUG17 GLING, AND ALIEN SMUGGLING.—The progress made 

18 in improving information sharing and law enforce19 ment cooperation in combating organized crime, in20 cluding the progress made— 

21 (A) in combating currency smuggling, 

22 money laundering, alien smuggling, and traf23 ficking in alcohol, firearms, and explosives; 


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

4 (C) in developing a joint threat assessment 

5 on organized crime between Canada and the 

6 United States; 

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

9 crime between Mexico and the United States; 

10 (E) in developing mechanisms to exchange 

11 information on findings, seizures, and capture 

12 of individuals transporting undeclared currency; 

13 and 

14 (F) 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 to identify sus23 pected criminals or terrorists, including exploring 

24 the formation of law enforcement teams that include 


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1 personnel from the United States and Mexico, and 

2 appropriate procedures for such teams. 

3 SEC. 144. SOUTHERN BORDER SECURITY TASK FORCE. 

4 (a) ESTABLISHMENT.—Not later than 180 days after 

5 the date of the enactment of this Act, the Secretary of 

6 Homeland Security shall establish a Southern Border Se7 curity Task Force (in this Act referred to as the ‘‘Task 

8 Force’’) to coordinate the efforts of Federal, State, and 

9 local border and law enforcement officials and task forces 

10 to protect United States border cities and communities 

11 from violence associated with drug trafficking, 

12 gunrunning, illegal alien smuggling, violence, and kidnap13 ping along and across the international border between the 

14 United States and Mexico. 

15 (b) COMPOSITION AND DEPLOYMENT.— 

16 (1) COMPOSITION.—The Task Force shall be 

17 comprised of personnel from— 

18 (A) United States Customs and Border 

19 Protection; 

20 (B) United States Immigration and Cus21 toms Enforcement; 

22 (C) the Coast Guard; 

23 (D) other Federal agencies, as appropriate; 

24 (E) southern border State law enforcement 

25 agencies; and 


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1 (F) local law enforcement agencies from 

2 affected southern border cities and commu3 nities. 

4 (2) DEPLOYMENT.—The Secretary of Home5 land Security shall deploy the Task Force along the 

6 international border between the United States and 

7 Mexico in cities and communities most affected by 

8 violence, as determined by the Secretary. 

9 (c) DIRECTOR.—The Secretary of Homeland Security 

10 shall appoint as a Director of the Task Force an individual 

11 who is experienced and knowledgeable in law enforcement 

12 generally and border security issues specifically. 

13 (d) REPORT.—Not later than 180 days after the date 

14 of the establishment of the Task Force under subsection 

15 (a) and annually thereafter, the Secretary of Homeland 

16 Security shall submit to the Committee on Homeland Se17 curity of the House of Representatives and the Committee 

18 on Homeland Security and Governmental Affairs of the 

19 Senate a report on the effectiveness of the Task Force 

20 in reducing the drug trafficking, gunrunning, illegal alien 

21 smuggling, violence, and kidnapping along and across the 

22 international border between the United States and Mex23 ico as measured by crime statistics, including violent 

24 deaths, incidents of violence, and drug related arrests. 


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1 (e) AUTHORIZATION OF APPROPRIATIONS.—There is 

2 authorized to be appropriated to the Secretary of Home3 land Security $10,000,000 for each of fiscal years 2010 

4 through 2014— 

5 (1) to establish and operate the Task Force, in6 cluding to provide for operational, administrative, 

7 and technological costs to Federal, State, and local 

8 law enforcement agencies participating in the Task 

9 Force; and 

10 (2) to investigate, apprehend, and prosecute in11 dividuals engaged in drug trafficking, gunrunning, 

12 illegal alien smuggling, violence, and kidnapping 

13 along and across the international border between 

14 the United States and Mexico. 

15 SEC. 145. COOPERATION WITH THE GOVERNMENT OF MEX16 ICO. 

17 (a) COOPERATION REGARDING BORDER SECU18 RITY.—The Secretary of State, in cooperation with the 

19 Secretary and representatives of Federal, State, and local 

20 law enforcement agencies that are involved in border secu21 rity and immigration enforcement efforts, shall work with 

22 the appropriate officials from the Government of Mexico 

23 to improve coordination between the United States and 

24 Mexico regarding— 


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1 (1) improved border security along the inter2 national border between the United States and Mex3 ico; 

4 (2) the reduction of human trafficking and 

5 smuggling between the United States and Mexico; 

6 (3) the reduction of drug trafficking and smug7 gling between the United States and Mexico; 

8 (4) the reduction of gang membership in the 

9 United States and Mexico; 

10 (5) the reduction of violence against women in 

11 the United States and Mexico; and 

12 (6) the reduction of other violence and criminal 

13 activity. 

14 (b) COOPERATION REGARDING EDUCATION ON IMMI15 GRATION LAWS.—The Secretary of State, in cooperation 

16 with other appropriate Federal officials, shall work with 

17 the appropriate officials from the Government of Mexico 

18 to carry out activities to educate citizens and nationals 

19 of Mexico regarding eligibility for status as a non20 immigrant under Federal law to ensure that the citizens 

21 and nationals are not exploited while working in the 

22 United States. 

23 (c) COOPERATION REGARDING CIRCULAR MIGRA24 TION.—The Secretary of State, in cooperation with the 

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1 cials, shall work with the appropriate officials from the 

2 Government of Mexico to improve coordination between 

3 the United States and Mexico to encourage circular migra4 tion, including assisting in the development of economic 

5 opportunities and providing job training for citizens and 

6 nationals in Mexico. 

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

8 and local representatives in the United States shall work 

9 to cooperate with their counterparts in Mexico concerning 

10 border security structures along the international border 

11 between the United States and Mexico, as authorized by 

12 this title, in order to— 

13 (1) solicit the views of affected communities; 

14 (2) lessen tensions; and 

15 (3) foster greater understanding and stronger 

16 cooperation on this and other important security 

17 issues of mutual concern. 

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

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

20 the Secretary of State shall submit to Congress a report 

21 on the actions taken by the United States and Mexico 

22 under this section. 

23 SEC. 146. ENHANCED INTERNATIONAL COOPERATION. 

24 (a) IN GENERAL.—The Attorney General, in coopera25 tion with the Secretary of State, shall— 


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1 (1) assign agents of the Bureau of Alcohol, To2 bacco, Firearms, and Explosives to the United 

3 States mission in Mexico, to work with Mexican law 

4 enforcement agencies in conducting investigations 

5 relating to firearms trafficking and other criminal 

6 enterprises; 

7 (2) provide the equipment and technological re8 sources necessary to support investigations and to 

9 trace firearms recovered in Mexico; and 

10 (3) support the training of Mexican law en11 forcement officers in serial number restoration tech12 niques, canine explosive detection, and anti-traf13 ficking tactics. 

14 (b) AUTHORIZATION OF APPROPRIATIONS.—There is 

15 authorized to be appropriated $9,500,000 for each of fis16 cal years 2011 and 2012 to carry out this section. 

17 SEC. 147. EXPANSION OF COMMERCE SECURITY PRO18 GRAMS. 

19 (a) CUSTOMS-TRADE PARTNERSHIP AGAINST TER20 RORISM.— 

21 (1) IN GENERAL.—Not later than 180 days 

22 after the date of enactment of this Act, the Commis23 sioner, in consultation with the Secretary, shall de24 velop a plan to expand the programs of the Cus25 toms–Trade Partnership Against Terrorism estabVerDate Nov 24 2008 00:39 Dec 17, 2009 Jkt 089200 PO 00000 Frm 00113 Fmt 6652 Sfmt 6201 E:\BILLS\H4321.IH H4321

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1 lished pursuant to section 211 of the SAFE Port 

2 Act (6 U.S.C. 961), including adding additional per3 sonnel for such programs, along the northern border 

4 and southern border, including the following pro5 grams: 

6 (A) The Business Anti-Smuggling Coali7 tion. 

8 (B) The Carrier Initiative Program. 

9 (C) The Americas Counter Smuggling Ini10 tiative. 

11 (D) The Container Security Initiative es12 tablished pursuant to section 205 of the SAFE 

13 Port Act (6 U.S.C. 945). 

14 (E) The Free and Secure Trade Initiative. 

15 (F) Other industry partnership programs 

16 administered by the Commissioner. 

17 (2) SOUTHERN BORDER DEMONSTRATION PRO18 GRAM.—Not later than 180 days after the date of 

19 enactment of this Act, the Commissioner shall imple20 ment, on a demonstration basis, at least 1 Customs– 

21 Trade Partnership Against Terrorism program, 

22 which has been successfully implemented along the 

23 northern border, along the southern border. 

24 (b) DEMONSTRATION PROGRAM.—Not later than 180 

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1 sioner shall establish a demonstration program to develop 

2 a cooperative trade security system to improve supply 

3 chain security. 

4 SEC. 148. AUTHORIZATION OF APPROPRIATIONS. 

5 (a) IN GENERAL.—In addition to any funds other6 wise available, there are authorized to be appropriated 

7 such sums as may be necessary for the fiscal years 2011 

8 through 2015 to carry out this subtitle. 

9 (b) INTERNATIONAL AGREEMENTS.—Amounts ap10 propriated pursuant to the authorization of appropriations 

11 in subsection (a) may be used for the implementation of 

12 projects described in the Declaration on Embracing Tech13 nology and Cooperation to Promote the Secure and Effi14 cient Flow of People and Commerce across our Shared 

15 Border between the United States and Mexico, agreed to 

16 March 22, 2002, Monterrey, Mexico or the Smart Border 

17 Declaration between the United States and Canada, 

18 agreed to December 12, 2001, Ottawa, Canada that are 

19 consistent with the provisions of this subtitle. 

20 Subtitle B—Detention 

21 SEC. 151. DEFINITIONS. 

22 In this subtitle: 

23 (1) DETENTION.—The term ‘‘detention’’, in the 

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1 tion of an individual’s freedom of movement by gov2 ernment agents. 

3 (2) DETENTION FACILITY.—The term ‘‘deten4 tion facility’’ means any Federal, State, local govern5 ment facility, or privately owned and operated facil6 ity that is used to hold immigration detainees for 

7 more than 72 hours. 

8 (3) SHORT-TERM DETENTION FACILITY.—The 

9 term ‘‘short-term detention facility’’ means any Fed10 eral, State, local government facility, or privately 

11 owned and operated facility that is used to hold im12 migration detainees for 72 hours or less. 

13 (4) IMMIGRATION-RELATED ENFORCEMENT AC14 TIVITY.—The term ‘‘immigration-related enforce15 ment activity’’ means any government action in 

16 which— 

17 (A) an individual suspected of an immigra18 tion violation is detained for such violation; or 

19 (B) an individual who has been detained 

20 by government agents is questioned about pos21 sible immigration violations. 

22 (5) SECURE ALTERNATIVES PROGRAMS.—The 

23 term ‘‘secure alternatives’’ means custodial or non24 custodial programs under which aliens are screened 

25 and provided with appearance assistance services or 


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1 placed in supervision programs as needed to ensure 

2 they appear at all immigration interviews, appoint3 ments and hearings. 

4 (6) UNACCOMPANIED ALIEN CHILDREN.—The 

5 term ‘‘unaccompanied alien child or children’’ shall 

6 be defined as found in section 462(g) of the Home7 land Security Act of 2002 (6 U.S.C. 279(g)) 

8 (7) APPREHENSION.—The term ‘‘apprehen9 sion’’, in the context of an immigration enforcement 

10 related activity, means government detention, arrest, 

11 or custody, or any significant deprivation of an indi12 viduals freedom of action by government officials or 

13 entities acting under agreement with the Depart14 ment of Homeland Security for suspicion of viola15 tions under the Immigration and Nationality Act (8 

16 U.S.C. 1101 et seq.). 

17 (8) SSA.—The term ‘‘SSA’’ means the appro18 priate State or local service agency, including rel19 evant nongovernmental organizations, child welfare 

20 agencies, child protective service agencies, school and 

21 head start administrators, mental health and legal 

22 service providers, and hospitals. 

23 SEC. 152. DETENTION CONDITIONS. 

24 (a) IN GENERAL.—The Secretary shall— 


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1 (1) ensure that all detainees are treated hu2 manely and granted the protections described in this 

3 section; and 

4 (2) comply with the minimum requirements set 

5 forth in this section. 

6 (b) QUALITY OF MEDICAL CARE.— 

7 (1) RIGHT TO MEDICAL CARE.—Each detainee 

8 has the right to— 

9 (A) prompt and adequate medical care, de10 signed to ensure continuity of care, at no cost 

11 to the detainee; 

12 (B) care to address medical needs that ex13 isted prior to detention; and 

14 (C) primary care, emergency care, chronic 

15 care, prenatal care, dental care, eye care, men16 tal health care, and other medically necessary 

17 specialized care. 

18 (2) SCREENINGS AND EXAMINATIONS.—Each 

19 detainee shall receive— 

20 (A) a comprehensive medical, dental, and 

21 mental health intake screening, including 

22 screening for sexual abuse or assault by a li23 censed health care professional upon arrival at 

24 a detention facility or short-term detention fa25 cility; and 


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1 (B) a comprehensive medical and mental 

2 health examination by a licensed health care 

3 professional not later than 14 days after the de4 tainee’s arrival at a detention facility. 

5 (3) MEDICATIONS AND TREATMENT.— 

6 (A) PRESCRIPTIONS.—Each detainee tak7 ing prescribed medications prior to detention 

8 shall be allowed to continue taking such medica9 tions, on schedule and without interruption, 

10 until and unless a licensed health care profes11 sional examines the immigration detainee and 

12 decides upon an alternative course of treatment. 

13 Detainees who arrive at a detention facility 

14 without prescription medications and report 

15 being on such medications shall be evaluated by 

16 a qualified health care professional not later 

17 than 24 hours after arrival. All decisions to dis18 continue or modify a detainee’s reported pre19 scription medication regimen shall be conveyed 

20 to the detainee in a language that the detainee 

21 understands and shall be recorded in writing in 

22 the detainee’s medical records. 

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1 wise to control the detainee’s behavior. Involun2 tary psychotropic medication may only be used, 

3 to the extent authorized by applicable law, in 

4 emergency situations after a physician has per5 sonally examined the detainee and determined 

6 that— 

7 (i) the detainee is imminently dan8 gerous to self or others due to a mental ill9 ness; and 

10 (ii) involuntary psychotropic medica11 tion is medically appropriate to treat the 

12 mental illness and necessary to prevent 

13 harm. 

14 (C) TREATMENT.—Each detainee shall be 

15 provided medically necessary treatment, includ16 ing prenatal care, prenatal vitamins, hormonal 

17 therapies, and birth control. Female detainees 

18 shall be provided with adequate access to sani19 tary products. 

20 (4) MEDICAL CARE DECISIONS.—Any decision 

21 regarding requested medical care for a detainee— 

22 (A) shall be made in writing by an on-site 

23 licensed health care professional not later than 

24 72 hours after such medical care is requested; 

25 and 


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1 (B) shall be immediately communicated to 

2 the detainee. 

3 (5) ADMINISTRATIVE APPEALS PROCESS.— 

4 (A) IN GENERAL.—Detention facilities, in 

5 conjunction with the Department of Homeland 

6 Security, shall ensure that detainees, medical 

7 providers, and legally appointed advocates have 

8 the opportunity to appeal a denial of requested 

9 health care services by an on-site provider to an 

10 independent appeals board. 

11 (B) APPEALS BOARD.—The appeals board 

12 shall include health care professionals in the 

13 fields relevant to the request for medical or 

14 mental health care. 

15 (C) DECISION.—Not later than 7 days 

16 after an appeal is received by the appeals board 

17 under this paragraph, or earlier if medically 

18 necessary, the appeals board shall issue a writ19 ten decision regarding the appeal and notify the 

20 detention facility and the appellee of such deci21 sion. 

22 (6) REVIEW OF ON-SITE MEDICAL PROVIDER

23 REQUESTS.— 

24 (A) IN GENERAL.—The Secretary shall re25 spond within 72 hours to any request by an onVerDate Nov 24 2008 00:39 Dec 17, 2009 Jkt 089200 PO 00000 Frm 00121 Fmt 6652 Sfmt 6201 E:\BILLS\H4321.IH H4321

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1 site medical provider for authorization to pro2 vide medical or mental health care to a de3 tainee. 

4 (B) WRITTEN EXPLANATION.—If the Sec5 retary denies or fails to grant a request de6 scribed in subparagraph (A), the Secretary shall 

7 immediately provide a written explanation of 

8 the reasons for such decision to the on-site 

9 medical provider and the detainee. 

10 (C) APPEALS BOARD.—The on-site medical 

11 provider and the detainee (or the detainee’s le12 gally appointed advocate) shall be permitted to 

13 appeal the denial of, or failure to grant, a re14 quest described in subparagraph (A) to an inde15 pendent appeals board. 

16 (D) DECISION.—Not later than 7 days 

17 after an appeal is received by the appeals board 

18 under this paragraph, or earlier if medically 

19 necessary, the appeals board shall issue a writ20 ten decision regarding the appeal and notify the 

21 on-site medical provider, the detainee, and the 

22 detention facility of such decision. 

23 (7) CONDITIONAL RELEASE.— 

24 (A) IN GENERAL.—If a licensed health 

25 care professional determines that a detainee has 


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1 a medical or mental health care condition, is 

2 pregnant, or is a nursing mother, the Secretary 

3 shall consider releasing the detainee on parole, 

4 on bond, or into a secure alternatives program. 

5 (B) REEVALUATION.—If a detainee de6 scribed in subparagraph (A) is not initially re7 leased under this paragraph, the Secretary shall 

8 periodically reevaluate the situation of the de9 tainee to determine if such a release would be 

10 appropriate. 

11 (C) DISCHARGE PLANNING.—Upon re12 moval or release, all detainees with medical or 

13 mental health conditions and women who are 

14 pregnant, post-natal, and nursing mothers shall 

15 receive discharge planning to ensure continuity 

16 of care for a reasonable period of time. 

17 (8) MEDICAL RECORDS.— 

18 (A) IN GENERAL.—The Secretary shall 

19 maintain complete, confidential medical records 

20 for every detainee and make such records avail21 able to a detainee or to individuals authorized 

22 by the detainee not later than 72 hours after 

23 receiving a request for such records. 

24 (B) TRANSFER OF MEDICAL RECORDS.— 

25 Immediately upon a detainee’s transfer between 


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1 detention facilities, the detainee’s complete 

2 medical records, including any transfer sum3 mary, shall be provided to the receiving deten4 tion facility. 

5 (c) ACCESS TO TELEPHONES.—Detention facilities 

6 shall provide to detainees reasonable and equitable access 

7 to working telephones, and the ability to contact, through 

8 confidential toll-free numbers, legal representatives, family 

9 courts, child protective services, foreign consulates, the im10 migration courts, Federal and state courts in which the 

11 detainee is, or may become, involved in a legal proceeding, 

12 the Board of Immigration Appeals, nongovernmental orga13 nizations designated by the Secretary, all government im14 migration agencies and adjudicatory bodies including the 

15 Office of the Inspector General of the Department of 

16 Homeland Security and the Office for Civil Rights and 

17 Civil Liberties of the Department of Homeland Security, 

18 in addition to persons and offices contacted for the pur19 pose of obtaining legal representation. Detention facilities 

20 shall provide to detainees access to telephones during facil21 ity working hours and on an emergency basis in accord22 ance with the following: 

23 (1) The detention facility shall provide to each 

24 detainee a copy of its rules governing telephone ac25 cess and shall post those rules, together with an exVerDate Nov 24 2008 00:39 Dec 17, 2009 Jkt 089200 PO 00000 Frm 00124 Fmt 6652 Sfmt 6201 E:\BILLS\H4321.IH H4321

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1 planation of how to make calls, within sight of each 

2 telephone available to detainees. These rules shall be 

3 translated into Spanish and two additional lan4 guages spoken by a substantial part of the detainee 

5 population of the detention facility. If a detention fa6 cility has determined that more than 5 percent of its 

7 population is of a certain language group, the docu8 ment should be translated into that language 

9 group’s appropriate language. The detention facility 

10 shall also provide oral interpretation and written 

11 translation assistance to detainees in reading any 

12 relevant materials required to request telephone ac13 cess, including oral interpretation assistance for 

14 those who are not literate in English, Spanish, and 

15 other languages spoken by the detainee population 

16 of the facility. 

17 (2) The rates charged for telephone calls shall 

18 be reasonable and equitable and shall not signifi19 cantly impair detainees’ access to telephones. 

20 (3) The detention facility shall not restrict the 

21 number of calls detainees may place to their legal 

22 representatives or consular officials, or to any others 

23 for the purpose of obtaining legal representation, or 

24 limit the duration of those calls by rule or automatic 

25 cut-off, unless necessary for security reasons. The 


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1 detention facility shall have a reasonable number of 

2 working phones available to detainees, and at a min3 imum one phone per each 25 users. 

4 (4) The detention facility shall ensure the pri5 vacy of telephone conversations between detainees 

6 and legal representatives or consular officials, and 

7 calls made for the purpose of obtaining legal rep8 resentation. Means to ensure privacy may include 

9 the use of privacy panels, the placement of phones 

10 in housing pods, and other appropriate measures. 

11 (5) Detainees’ telephone calls to a court, legal 

12 representative, or consular official, or for the pur13 pose of obtaining legal representation, shall not be 

14 monitored or recorded without a court order and 

15 without prior notification to the detainee. 

16 (6) The detention facility shall take and deliver 

17 telephone messages to detainees as promptly as pos18 sible, but no less often than twice a day. Detainees 

19 shall be permitted to make confidential telephone 

20 calls promptly within 8 hours of receipt of messages 

21 left by a court, legal representative, prospective legal 

22 representative, or consular official as soon as reason23 ably possible after the delivery of the message. 

24 (d) SEXUAL ABUSE REGULATIONS CONCERNING

25 CARE AND CUSTODY OF DETAINEES.— 


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1 (1) IN GENERAL.—Detention facilities shall 

2 take all necessary measures to prevent sexual abuse 

3 of detainees, including sexual assaults, and shall ob4 serve the minimum standards under the Prison Rape 

5 Elimination Act of 2003 (42 U.S.C. 15601 et seq.). 

6 (2) MEASURES WHERE ABUSE OCCURS.—Where 

7 sexual abuse occurs, detention facilities shall ensure 

8 that— 

9 (A) prompt and appropriate medical inter10 vention is taken to minimize medical and psy11 chological trauma; 

12 (B) a medical history is taken and a phys13 ical examination is conducted by qualified and 

14 culturally appropriate licensed medical profes15 sionals to determine the extent of physical in16 jury and whether referral to another medical fa17 cility is indicated; 

18 (C) prophylactic treatment and follow-up 

19 for sexually transmitted diseases are provided 

20 within the appropriate time frame; 

21 (D) the case is evaluated by a qualified 

22 and culturally appropriate mental health profes23 sional for crisis intervention counseling and 

24 long-term follow-up; 


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1 (E) victims are separated from their abus2 ers and are considered for release on parole or 

3 for an alternative to detention program— 

4 (i) shall not result in the transfer of 

5 the victim away from counsel absent 

6 expectional circumstances; and 

7 (ii) shall never result in the placement 

8 of the victim in solitary confinement; and 

9 (F) any and all medical and mental health 

10 records arising out of a detainee’s allegation of 

11 sexual abuse shall be treated as confidential, as 

12 required by the Health Insurance Portability 

13 and Accountability Act of 1996. 

14 (3) REPORTING.—A detention facility shall not 

15 subject any person to punishment or any other form 

16 of retaliation for reporting incidents of sexual abuse. 

17 (4) INVESTIGATION.—In all cases of alleged 

18 sexual abuse, the detention facility shall conduct a 

19 thorough and timely investigation and shall provide 

20 to the Secretary of Homeland Security a report of 

21 the circumstances and the response of the detention 

22 facility. If the report is not completed within 30 

23 days after alleged sexual abuse comes to the atten24 tion of the detention facility, the detention facility 

25 shall submit to the Secretary of Homeland Security 


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1 a description of the status of the investigation and 

2 an estimated date of completion 30 days after the 

3 alleged sexual abuse comes to the attention of the 

4 detention facility and every 30 days thereafter until 

5 the report is provided to the Secretary of Homeland 

6 Security. The report required by this subsection 

7 shall include at minimum a determination of wheth8 er the alleged sexual abuse occurred, an in-depth 

9 analysis of the relevant facts including the causes of 

10 any sexual abuse that may have occurred and wheth11 er and to what extent the alleged abuse indicates a 

12 failure of policy, a failure of training, a failure of 

13 oversight, or a failure of management, and a de14 scription of the actions that the facility will take to 

15 prevent the occurrence of similar incidents in the fu16 ture and a plan for monitoring the implementation 

17 of those actions. The detention facility shall provide 

18 to the Secretary of Homeland Security periodic re19 ports monitoring the implementation of the plan in 

20 accordance with the schedule set forth in such plan 

21 as approved by the Secretary of Homeland Security. 

22 (e) TRANSFER OF DETAINEES.— 

23 (1) PROCEDURES.—In adopting procedures gov24 erning the transfer of individuals detained under the 

25 Immigration and Nationality Act (8 U.S.C. 1226), 


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1 the Secretary of Homeland Security shall prohibit 

2 transfer of a detainee if such transfer would— 

3 (A) negatively affect an existing attorney4 client relationship; 

5 (B) negatively affect the detainee’s legal 

6 proceedings, including merits or calendar hear7 ings, or a pending application with United 

8 States Citizenship and Immigration Services or 

9 the Executive Office for Immigration Review, 

10 by— 

11 (i) limiting the detainee’s access to se12 curing legal representation; 

13 (ii) limiting the detainee’s ability to 

14 prepare a legal defense to removal; or 

15 (iii) removing the detainee from the 

16 legal venue of such proceeding; 

17 (C) negatively affect the detainee’s health 

18 and medical fitness; or 

19 (D) to the extent it does not conflict with 

20 clauses (i), (ii), and (iii)— 

21 (i) place the detainee in a location 

22 more distant from the detainee’s residence 

23 than the original detention location; or 


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1 (ii) place the detainee in a location 

2 more distant from family members than 

3 the original detention location. 

4 (2) NOTICE.—Unless exigent circumstances dic5 tate an immediate transfer— 

6 (A) the Secretary of Homeland Security 

7 shall provide not less than 72 hours notice to 

8 any detainee prior to transferring the detainee 

9 to another detention facility; 

10 (B) detainees shall be afforded at least one 

11 toll-free call and the Secretary of Homeland Se12 curity shall notify the detainee’s legal represent13 ative or if unrepresented, an adult family mem14 ber or other person designated by the detainee, 

15 of the transfer and the detainee’s new location 

16 by telephone and in writing; 

17 (C) if removal proceedings are pending, the 

18 Secretary of Homeland Security shall also 

19 promptly notify the Immigration Court, Board 

20 of Immigration Appeals, or the Circuit Court of 

21 Appeals, as appropriate of the transfer and the 

22 detainee’s new address; and 

23 (D) the Secretary of Homeland Security 

24 shall not transfer any detainee who has already 


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1 requested, and is awaiting, a bond hearing or a 

2 bond redetermination hearing. 

3 (3) EXCEPTION.—The Secretary may transfer a 

4 detainee who has an existing attorney-client relation5 ship to an alternate detention facility if such trans6 fer is necessitated by a highly unusual emergency, 

7 such as a natural disaster or comparable emergency. 

8 (4) PROTECTING DETAINEES LEGAL RIGHTS.— 

9 If the Secretary determines that a transfer is nec10 essary due to a highly unusual emergency, the Sec11 retary shall ensure that the detainee’s legal rights 

12 are not prejudiced and the existing attorney-client 

13 relationship is not impaired, including evaluating the 

14 location of the detention facility based on it prox15 imity to the detainee’s counsel or nongovernmental 

16 or pro bono organizations providing free or low cost 

17 immigration legal services. 

18 (5) RECORD.—In cases in which a detainee is 

19 transferred, the Secretary shall make a record of the 

20 reasons and circumstances necessitating such trans21 fer. 

22 SEC. 153. SPECIFIC DETENTION REQUIREMENTS FOR 

23 SHORT-TERM DETENTION FACILITIES. 

24 (a) ACCESS TO BASIC NEEDS, PEOPLE, AND PROP25 ERTY.— 


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1 (1) BASIC NEEDS.—All detainees in short-term 

2 detention facilities shall receive— 

3 (A) potable water; 

4 (B) food, if detained for more than 5 

5 hours; 

6 (C) basic toiletries, diapers, sanitary prod7 ucts, and blankets; 

8 (D) access to bathroom facilities; and 

9 (E) access to telephones. 

10 (2) PEOPLE.—The Secretary shall provide con11 sular officials with access to detainees held at any 

12 short-term detention facility. Detainees shall be af13 forded reasonable access to a licensed health care 

14 professional. The Secretary shall ensure that nursing 

15 mothers in such facilities have access to their chil16 dren. 

17 (3) PROPERTY.—Any property belonging to a 

18 detainee that was confiscated by an official of the 

19 Department of Homeland Security shall be returned 

20 to the detainee upon repatriation or transfer. 

21 (b) PROTECTIONS FOR CHILDREN.— 

22 (1) QUALIFIED STAFF.—The Secretary shall 

23 ensure that adequately trained and qualified staff 

24 are stationed at each major port of entry at which, 

25 during the most recent 2 fiscal years, an average of 


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1 not fewer than 50 unaccompanied alien children per 

2 year have been held by United States Customs and 

3 Border Protection, such staff shall include— 

4 (A) independent licensed social workers 

5 dedicated to ensuring the proper temporary 

6 care for the children while in the custody of 

7 United States Customs and Border Protection; 

8 and 

9 (B) agents charged primarily with the safe, 

10 swift, and humane transportation of such chil11 dren to the custody of the Office of Refugee Re12 settlement. 

13 (2) SPECIFIC RIGHTS.—The social workers de14 scribed in paragraph (1)(A) shall ensure that each 

15 unaccompanied alien child— 

16 (A) receives emergency medical care; 

17 (B) receives mental health care in case of 

18 trauma; 

19 (C) has access to psychosocial health serv20 ices; 

21 (D) is provided with— 

22 (i) a pillow, linens, and sufficient 

23 blankets to rest at a comfortable tempera24 ture; and 


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1 (ii) a bed and mattress placed in an 

2 area specifically designated for residential 

3 use; 

4 (E) receives adequate nutrition; 

5 (F) enjoys a safe and sanitary living envi6 ronment; 

7 (G) receives educational materials; and 

8 (H) has access to at least 3 hours of in9 door and outdoor recreational programs and ac10 tivities per day. 

11 (c) CONFIDENTIALITY.— 

12 (1) IN GENERAL.—The Secretary of Health and 

13 Human Services shall maintain the privacy and con14 fidentiality of all information gathered in the course 

15 of providing care, custody, placement, and follow-up 

16 services to unaccompanied alien children and sepa17 rated children as defined in section 164(c), con18 sistent with the best interest of such children, by not 

19 disclosing such information to other government 

20 agencies or nonparental third parties, except as pro21 vided under paragraph (2). 

22 (2) LIMITED DISCLOSURE OF INFORMATION.— 

23 The Secretary may only disclose information regard24 ing an unaccompanied alien child if— 


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1 (A) the child authorizes such disclosure 

2 and such is consistent with the child’s best in3 terest; or 

4 (B) the disclosure is to a duly recognized 

5 law enforcement entity and is necessary to pre6 vent imminent and serious harm to another in7 dividual. 

8 (3) WRITTEN RECORD.—All disclosures under 

9 paragraph (2) shall be duly recorded in writing and 

10 placed in the child’s file. 

11 SEC. 154. RULEMAKING AND ENFORCEMENT. 

12 (a) REGULATIONS.— 

13 (1) NOTICE OF PROPOSED RULEMAKING.—Not 

14 later than 60 days after the date of the enactment 

15 of this Act, the Secretary shall issue a notice of pro16 posed rulemaking regarding the implementation of 

17 this Act. 

18 (2) FINAL REGULATIONS.—Not later than 180 

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

20 Secretary shall promulgate regulations, which shall 

21 be binding upon all detention facilities and short22 term detention facilities, to ensure that the detention 

23 requirements under sections 142 and 143 are fully 

24 implemented and enforced and that all facilities 

25 comply with the regulations. 


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1 (b) ENFORCEMENT.— 

2 (1) IN GENERAL.—The Secretary shall enforce 

3 all regulations and standards promulgated under 

4 subsection (a). Not later than 180 days after the 

5 date of the enactment of this Act, the Secretary 

6 shall issue guidance to detention facilities and short7 term detention facilities to ensure compliance with 

8 all the detention requirements under sections 142 

9 and 143. 

10 (2) INVESTIGATION.— 

11 (A) GRIEVANCES.—Each detainee has the 

12 right to file grievances with the staff of deten13 tion facilities, short-term detention facilities, 

14 and the Department of Homeland Security, and 

15 shall be protected from retaliation for exercising 

16 such right. 

17 (B) REVIEW.—The Secretary shall— 

18 (i) review any grievance or other com19 plaint containing evidence that a detention 

20 facility or short-term detention facility has 

21 violated any requirement under this Act; 

22 (ii) issue a determination in writing to 

23 the complainant indicating the Secretary’s 

24 findings regarding the alleged violation not 


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1 later than 30 days after receiving such 

2 complaint; 

3 (iii) remedy any violation not later 

4 than 30 days after issuing a determination 

5 under clause (ii); and 

6 (iv) promptly advise the complainant 

7 of the remedy referred to in clause (iii). 

8 (C) WRITTEN RESPONSE.—If the Sec9 retary issues a written response under subpara10 graph (B)(ii) indicating that no violation has 

11 occurred, such response shall constitute final 

12 agency action for the purposes of section 702 of 

13 title 5, United States Code. 

14 (3) PENALTIES.—The Secretary shall enforce 

15 compliance with the detention requirements under 

16 sections 142 and 143 by— 

17 (A) imposing financial penalties upon de18 tention facilities and short-term detention facili19 ties that are not in compliance with such re20 quirements; and 

21 (B) terminating the contracts of such fa22 cilities if such noncompliance persists. 

23 (4) COMPLIANCE OFFICER.— 

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1 ignate an officer to ensure compliance with the 

2 provisions of this Act. 

3 (B) DUTIES.—Each officer designated 

4 under subparagraph (A) shall— 

5 (i) investigate all evidence pertaining 

6 to a violation of this Act; and 

7 (ii) if a violation is identified, remedy 

8 the violation within 30 days. 

9 (C) JUDICIAL REVIEW.—A detainee may 

10 not seek judicial review of the detention facili11 ty’s determination until after the passage of the 

12 30-day period, except where irreparable harm 

13 would result. 

14 (c) RULE OF CONSTRUCTION.—Nothing in this sec15 tion may be construed to preclude review of noncompliance 

16 with this Act under— 

17 (1) section 1331 or 2241 of title 28, United 

18 States Code; or 

19 (2) section 1979 of the Revised Statutes (42 

20 U.S.C. 1983). 

21 (d) PUNITIVE DAMAGES.—No individual may seek 

22 punitive damages for any violation under this Act. 

23 SEC. 155. IMMIGRATION DETENTION COMMISSION. 

24 (a) APPOINTMENT.—The Secretary shall appoint and 

25 convene an Immigration Detention Commission (referred 


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1 to in this section as the ‘‘Commission’’), which shall be 

2 comprised of— 

3 (1) experts from United States Immigration 

4 and Customs Enforcement, United States Customs 

5 and Border Protection, the Office of Refugee Reset6 tlement, and the Division of Immigration Health 

7 Services of the Department of Health and Human 

8 Services; and 

9 (2) independent experts, in a number equal to 

10 the number of experts appointed under paragraph 

11 (1), from nongovernmental organizations and inter12 governmental organizations with expertise in work13 ing on behalf of detainees and other vulnerable pop14 ulations. 

15 (b) DUTIES.—The Commission shall conduct inde16 pendent investigations, and evaluate and report on the 

17 compliance of detention facilities, short-term detention fa18 cilities, and the Department of Homeland Security with 

19 the detention requirements under sections 142 and 143. 

20 (c) BIENNIAL REPORTS.—Not later than 60 days 

21 after the end of the first fiscal year beginning after the 

22 date of the enactment of this Act, and every 2 years there23 after, the Commission shall submit a report containing the 

24 findings of its investigations and evaluations under sub25 section (b) to— 


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1 (1) the Committee on the Judiciary of the Sen2 ate; 

3 (2) the Committee on Homeland Security and 

4 Governmental Affairs of the Senate; 

5 (3) the Committee on the Judiciary of the 

6 House of Representatives; and 

7 (4) the Committee on Homeland Security of the 

8 House of Representatives. 

9 SEC. 156. DEATH IN CUSTODY REPORTING REQUIREMENT. 

10 (a) IN GENERAL.—If an individual dies while in the 

11 custody of the Department of Homeland Security or en 

12 route to or from such custody— 

13 (1) the supervising official at the detention fa14 cility or short-term detention facility at which the 

15 death took place shall immediately notify the Sec16 retary of such death; and 

17 (2) not later than 48 hours after receiving a no18 tification under paragraph (1), the Secretary shall 

19 report the death to— 

20 (A) the Office of the Inspector General of 

21 the Department of Homeland Security; and 

22 (B) the Department of Justice. 

23 (b) MORBIDITY AND MORTALITY REVIEW.—The De24 partment of Homeland Security shall complete an inves25 tigation of each detainee death that shall be conducted 


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1 consistent with established medical practice for morbidity 

2 and mortality reviews and examine both individual and 

3 systemic contributors to the death. The investigation shall 

4 be conducted by a panel of physicians with experience in 

5 morbidity and mortality reviews and shall include the med6 ical staff of the facility or facilities that cared for the de7 ceased detainee, physicians from within the Department, 

8 and independent physicians not affiliated with the Depart9 ment or facility. The panel shall complete a report and 

10 corrective action plan in each case. 

11 (c) REPORT TO CONGRESS.—Not later than 60 days 

12 after the end of each fiscal year, the Secretary shall sub13 mit a report containing detailed information regarding all 

14 the deaths of individuals in the custody of the Department 

15 of Homeland Security during the preceding fiscal year to 

16 the committees set forth in section 155(c). 

17 (d) CONTENTS.—The reports submitted under sub18 section (a)(2) and subsection (c) shall include— 

19 (1) the name, gender, race, ethnicity, and age 

20 of the deceased; 

21 (2) the date, time, and location of death; 

22 (3) the law enforcement agency that detained, 

23 arrested, or was in the process of arresting the de24 ceased; 


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1 (4) a description of the circumstances sur2 rounding the death; 

3 (5) the status and results of any investigation 

4 that has been conducted into the circumstances sur5 rounding the death; and 

6 (6) all medical records of the deceased. 

7 SEC. 157. PROTECTION OF COMMUNITY-BASED ORGANIZA8 TIONS, FAITH-BASED ORGANIZATIONS AND 

9 OTHER INSTITUTIONS. 

10 (a) IN GENERAL.—The Secretary shall issue regula11 tions requiring officials of the Department of Homeland 

12 Security to— 

13 (1) prohibit the apprehension of persons on the 

14 premises or in the immediate vicinity of— 

15 (A) a childcare provider; 

16 (B) a school; 

17 (C) a legal-service provider; 

18 (D) a Federal court or State court pro19 ceeding; 

20 (E) an administrative proceeding; 

21 (F) a funeral home; 

22 (G) a cemetery; 

23 (H) a college, university, or community 

24 college; 

25 (I) a victim services agency; 


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1 (J) a social service agency; 

2 (K) a hospital or emergency care center; 

3 (L) a health care clinic; 

4 (M) a place of worship; 

5 (N) a day care center; 

6 (O) a head start center; 

7 (P) a school bus stop; 

8 (Q) a recreation center; 

9 (R) a mental health facility; and 

10 (S) a community center; and 

11 (2) tightly control investigative operations at 

12 the locations described in paragraph (1). 

13 (b) NOTICE TO APPEAR.—The Secretary shall amend 

14 the Notice to Appear form to include a statement that no 

15 immigration enforcement activity was undertaken in any 

16 of the locations described in subsection (a)(1). 

17 SEC. 158. APPREHENSION PROCEDURES FOR IMMIGRA18 TION-RELATED ENFORCEMENT ACTIVITIES. 

19 (a) IN GENERAL.—Any immigration-related enforce20 ment activity engaged in by the Department of Homeland 

21 Security or by other entities under agreement with the De22 partment of Homeland Security for alleged violations 

23 under the Immigration and Nationality Act (8 U.S.C. 

24 1101 et seq.), which results in the apprehension of at least 


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1 1 alien shall be carried out in accordance with the proce2 dures described in this section. 

3 (b) APPREHENSION PROCEDURES.—The Department 

4 of Homeland Security and entities under agreement with 

5 the Department of Homeland Security shall— 

6 (1) conduct an initial review of each individual 

7 apprehended in an immigration-related enforcement 

8 activity to ascertain whether such individual may be 

9 a United States citizen, a lawful permanent resident 

10 of the United States, or an alien lawfully present in 

11 the United States; 

12 (2) if an individual claims to be a United States 

13 citizen, a lawful permanent resident of the United 

14 States, or an alien lawfully present in the United 

15 States, ensure that personnel of the Department of 

16 Homeland Security or personnel under agreement 

17 with the Department of Homeland Security inves18 tigates the individual’s claims and considers the indi19 vidual for release under section 160(c); 

20 (3) notify SSAs of such immigration-related en21 forcement activity not later than 24 hours before the 

22 commencement of such activity, specifically notifying 

23 the SSAs of— 

24 (A) the specific area of the State that will 

25 be affected; and 


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1 (B) the languages anticipated may be spo2 ken by individuals at the targeted site; 

3 (4) if such immigration-related enforcement ac4 tivities cannot be planned more than 24 hours in ad5 vance, notify SSAs in a timely fashion before the ac6 tivity commences or, if this is not possible, imme7 diately following the commencement of such activity; 

8 (5) provide SSAs with ongoing confidential ac9 cess to individuals apprehended by the Department 

10 of Homeland Security or any entity operating under 

11 agreement with the Department of Homeland Secu12 rity within six hours of the individual’s apprehen13 sion, to assist the Department of Homeland Security 

14 in determining if he or she is a member of a vulner15 able population as described in section 160(a)(2); 

16 (6) notify local law enforcement of the specific 

17 area of the State that will be affected by such immi18 gration-related enforcement activity not later than 

19 24 hours before the commencement of such activity 

20 or, if such immigration-related enforcement activity 

21 cannot be planned more than 24 hours in advance, 

22 notify local law enforcement in a timely fashion be23 fore the activity commences, or if this is not pos24 sible, immediately following the commencement of 

25 such activity; 


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1 (7) provide all Department of Homeland Secu2 rity personnel, personnel from entities under agree3 ment with the Department of Homeland Security 

4 participating, SSAs, and medical personnel with de5 tailed instructions on what steps to take if they en6 counter individuals who are a member of a vulner7 able population; 

8 (8) ensure that not fewer than one independent 

9 certified interpreter who is fluent in Spanish or any 

10 language other than English spoken by more than 5 

11 percent of the target population of the immigration12 related enforcement activity is available for in-person 

13 translation for every 5 individuals targeted by an 

14 immigration-related enforcement activity, and that 

15 the Department of Homeland Security and entities 

16 operating under agreement with the Department of 

17 Homeland Security utilize appropriate translation 

18 services where interpreters cannot or have not been 

19 retained prior to commencement of an immigration20 related enforcement activity; 

21 (9) permit nonprofit legal service providers, or22 ganizations, and attorneys to offer free legal services 

23 to individuals subject to an immigration-related en24 forcement activity at the time of the apprehension of 

25 such individuals; and 


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1 (10) permit access to a telephone within 6 

2 hours after an individual is detained. 

3 SEC. 159. PROTECTIONS AGAINST UNLAWFUL DETENTIONS 

4 OF UNITED STATES CITIZENS. 

5 (a) NOTIFICATIONS.— 

6 (1) IN GENERAL.—Prior to questioning an indi7 vidual who has been detained on the basis of a sus8 pected immigration violation or has been detained 

9 during an immigration-related enforcement activity, 

10 a Department of Homeland Security or other officer 

11 must first advise the detainee, in the language spo12 ken by the detainee that— 

13 (A) the detainee has the right to be rep14 resented by counsel at no expense to the Fed15 eral Government; 

16 (B) the detainee may remain silent; and 

17 (C) any statement made by the detainee 

18 may be used against the detainee in a subse19 quent removal or criminal proceeding. 

20 (2) EFFECT OF VIOLATION.—Any evidence ob21 tained by an officer from a detainee in violation of 

22 paragraph (1) may not be— 

23 (A) admissible in a removal proceeding 

24 against the detainee; or 


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1 (B) used to confirm that the detainee is a 

2 noncitizen for purposes of issuing an immigra3 tion detainer. 

4 (b) LEGAL ORIENTATION PROGRAM.— 

5 (1) IN GENERAL.—The Attorney General, in 

6 consultation with the Secretary, shall ensure that all 

7 detained aliens who are in, or may be subject to, de8 tention by the Department of Homeland Security, 

9 Immigration and Customs Enforcement, and who 

10 are, or may be, in EOIR Immigration Court pro11 ceedings pursuant to sections 235, 238, 240, and 

12 241 of the Immigration and Nationality Act receive 

13 legal orientation through a program administered 

14 and implemented by the Executive Office of Immi15 gration Review of the Department of Justice. 

16 (2) CONTENT OF THE PROGRAM.—The legal 

17 orientation program developed pursuant to this sec18 tion shall be based on the Legal Orientation Pro19 gram carried out by the Executive Office for Immi20 gration Review on the date of the enactment of this 

21 Act. 

22 (3) AUTHORIZATION OF APPROPRIATIONS.— 

23 There are authorized to be appropriated such sums 

24 as may be necessary to carry out suchlegal orienta25 tion program. 


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1 (c) ACCESS TO COUNSEL.— 

2 (1) IN GENERAL.—An individual who is subject 

3 to or detained during an immigration-related en4 forcement activity may be represented by legal coun5 sel at any time. 

6 (2) LIST OF FREE LEGAL SERVICES.—The ex7 amining officer shall, in the language spoken by the 

8 individual being detained— 

9 (A) provide the individual, prior to trans10 ferring the individual from the point of appre11 hension to the detention facility for an immi12 gration-related violation with a list of available 

13 free or low-cost legal services provided by orga14 nizations and attorneys that are located in the 

15 region in which the arrest occurred; and 

16 (B) certify on the Notice to Appear issued 

17 to such individual that such a list was provided 

18 to the individual. 

19 (3) AMENDMENT.—Section 236 of the Immi20 gration and Nationality Act (8 U.S.C. 1226) is 

21 amended— 

22 (A) by redesignating subsection (e) as sub23 section (l); 


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1 (B) by redesignating subsections (b), (c), 

2 (d), and (e) as subsections (f), (g), and (h), and 

3 (i) respectively; and 

4 (C) by inserting before subsection (l), as 

5 redesignated, the following: 

6 ‘‘(k) RIGHT OF ACCESS TO COUNSEL.—An individual 

7 may be represented by counsel of the individual’s choosing 

8 while being subject to any immigration-related enforce9 ment activity, including— 

10 ‘‘(1) interviews; 

11 ‘‘(2) processing appointments; 

12 ‘‘(3) booking or intake questions; 

13 ‘‘(4) hearings; and 

14 ‘‘(5) any procedure that may result in a conclu15 sion that the detainee will be detained or removed 

16 from the United States.’’. 

17 (d) REPRESENTATION OF DISABLED ALIENS; AC18 CESS TO COUNSEL.—The Attorney General shall ensure 

19 that any alien with a legal, mental or physical disability 

20 that prevents him from meaningfully representing himself 

21 in proceedings shall have counsel, including counsel ap22 pointed by the Attorney General at the expense of the Gov23 ernment. 

24 (e) NOTICE.— 


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1 (1) AMENDMENT.—Section 236 of such Act, as 

2 amended by subsection (b)(3), is further amended by 

3 inserting before subsection (k), the following: 

4 ‘‘(j) NOTICE AND CHARGES.— 

5 ‘‘(1) IN GENERAL.—Not later than 48 hours 

6 after the commencement of a detention of an indi7 vidual under this section, the Secretary of Homeland 

8 Security shall— 

9 ‘‘(A) file a Notice to Appear or other rel10 evant charging document with the immigration 

11 court closest to the location at which the indi12 vidual was apprehended; and 

13 ‘‘(B) serve such notice or charging docu14 ment on the individual. 

15 ‘‘(2) CUSTODY DETERMINATION.—Any indi16 vidual who is detained under this section for more 

17 than 48 hours shall be brought before an immigra18 tion judge for a custody determination not later than 

19 72 hours after the commencement of such detention 

20 unless the individual waives the right in accordance 

21 with paragraph (3). 

22 ‘‘(3) WAIVER.—The requirements of this sub23 section may be waived for not more than 7 days if 

24 the detainee— 


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1 ‘‘(A) enters into a written agreement with 

2 the Department of Homeland Security to waive 

3 such requirements; and 

4 ‘‘(B) is prima facie eligible for immigration 

5 benefits or demonstrates prima facie eligibility 

6 for a defense against removal.’’. 

7 (2) APPLICABILITY OF OTHER LAW.—Nothing 

8 in section 236(f) of the Immigration and Nationality 

9 Act, as added by paragraph (1), may be construed 

10 to repeal section 236A of such Act (8 U.S.C. 

11 1226a). 

12 (f) ISSUANCE OF DETAINERS.— 

13 (1) IN GENERAL.—Section 287(d) is amended 

14 by adding at the end the following: ‘‘The alien and 

15 his or her attorney in the criminal proceeding shall 

16 be provided with a written notice of the detainer in17 dicating the intention of the Secretary to assume 

18 custody of the alien upon completion of the pending 

19 criminal proceedings. The written notice shall in20 clude information about the specific basis for issuing 

21 the detainer and instructions about how individuals 

22 can challenge a detainer lodged in error. Where the 

23 state or federal criminal court has granted pre-trial 

24 release, and the alien has complied with conditions 

25 of such release, DHS shall not take custody of the 


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1 alien until resolution of the pending criminal 

2 charges. The existence of a detainer shall not be 

3 used as a basis for denying pre-trial release. This 

4 section is the sole authority for issuance of immigra5 tion detainers.’’. 

6 (2) RULEMAKING.—The Secretary shall issue 

7 regulations that require officials of the Department 

8 of Homeland Security to confirm, before issuing a 

9 detainer, the alienage of the individual to be made 

10 subject to such detainer. The regulations shall re11 quire officials of the Department of Homeland Secu12 rity to confirm— 

13 (A) the alienage of an individual through 

14 lawfully obtained information, including the 

15 name of the individual; the date of birth of the 

16 individual; or the fingerprints of the individual; 

17 and 

18 (B) whether the individual is removable 

19 from the United States. 

20 (3) DATA COLLECTION.—The Secretary of 

21 Homeland Security shall collect data regarding de22 tainers issued under section 287(d) of the Immigra23 tion and Nationality Act (8 U.S.C. 1357(d)) includ24 ing— 


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1 (A) the criminal charge for which the indi2 vidual was arrested and/or convicted; 

3 (B) the date the detainer was issued; 

4 (C) the basis for issuance of the detainer; 

5 (D) the date(s) the detainer was lifted; 

6 (E) the date(s) of release of the individual 

7 ordered by a State or Federal criminal court or 

8 other government entity; 

9 (F) the date that DHS took custody of the 

10 individual; 

11 (G) the race and ethnicity and country of 

12 origin of the individual against whom the de13 tainer was issued; 

14 (H) the disposition of criminal case; 

15 (I) the ultimate disposition of immigration 

16 case or whether individual was discovered to be 

17 a United States citizen; 

18 (J) the grounds of removal if applicable 

19 and any charges brought by the Secretary; and 

20 (K) the number of individuals removed 

21 after the Secretary took custody while any 

22 criminal matter was still pending. 

23 (4) REPORT ON DETAINERS.—On a yearly basis 

24 beginning one year after the date of the enactment 

25 of this Act, the Secretary of Homeland Security 


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1 shall report the results of the Secretary’s data collec2 tion to the Department of Homeland Security In3 spector General, the Department of Justice Civil 

4 Rights Division, Congress, and the Department of 

5 Homeland Security Office of Civil Rights and Civil 

6 Liberties for purposes of ascertaining the extent to 

7 which detainers are erroneously lodged against indi8 viduals who are United States citizens or not deport9 able, how often individuals remain in detention un10 lawfully past the expiration of the detainer, whether 

11 detainers are lodged disproportionately against cer12 tain ethnicities, whether the lodging of detainers re13 sults in longer incarceration times, and whether de14 tainers are lodged for an investigatory purpose to in15 vestigate criminal activity instead of placing individ16 uals in removal proceedings. 

17 (5) AUTHORIZATION OF APPROPRIATIONS.— 

18 There are authorized to be appropriated such sums 

19 as may be necessary to carry out this section for 

20 each of fiscal years 2008 through 2012 to carry out 

21 this section. 

22 SEC. 160. BASIC PROTECTIONS FOR VULNERABLE POPU23 LATIONS. 

24 (a) VULNERABLE POPULATIONS.— 


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1 (1) IN GENERAL.—Not later than 48 hours 

2 after the commencement of an immigration-related 

3 enforcement activity, the Department of Homeland 

4 Security shall screen each detainee to determine 

5 whether the detainee is a member of a vulnerable 

6 population. 

7 (2) VULNERABLE POPULATIONS.—A member of 

8 a vulnerable population includes any of the fol9 lowing: 

10 (A) Individuals with a nonfrivolous claim 

11 to United States citizenship. 

12 (B) Individuals who have a disability or 

13 have been determined by a medically trained 

14 professional to have medical or mental health 

15 needs. 

16 (C) Pregnant or nursing women. 

17 (D) Individuals who are detained with 1 or 

18 more of their children, and their detained chil19 dren. 

20 (E) Individuals who provide financial, 

21 physical, and other direct support to their 

22 minor children, parents, or other dependents. 

23 (F) Individuals who are at least 65 years 

24 of age. 


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1 (G) Children (as defined in section 

2 101(b)(1) of the Immigration and Nationality 

3 Act (8 U.S.C. 1101(b)(1))). 

4 (H) Victims of abuse, violence, crime, or 

5 human trafficking. 

6 (I) Individuals who have been referred for 

7 a credible fear interview, a reasonable fear 

8 interview, or an asylum hearing. 

9 (J) Stateless individuals. 

10 (K) Individuals who have applied or intend 

11 to apply for asylum, withholding of removal, or 

12 protection under the Convention Against Tor13 ture and Other Cruel, Inhuman or Degrading 

14 Treatment or Punishment, done at New York, 

15 December 10, 1984, and entered into force 

16 June 26, 1987. 

17 (L) Individuals who make a prima facie 

18 case for eligibility for relief under any provision 

19 of the Immigration and Nationality Act (8 

20 U.S.C. 1101 et seq.), including returning lawful 

21 permanent residents. 

22 (M) Any group designated by the Sec23 retary as a vulnerable population. 

24 (b) OPTIONS REGARDING DETENTION DECISIONS

25 FOR VULNERABLE POPULATIONS.—Section 236 of the 


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1 Immigration and Nationality Act, as amended by this Act, 

2 is further amended— 

3 (1) in subsection (a)— 

4 (A) in the matter preceding paragraph (1), 

5 by striking ‘‘(c)’’ and inserting ‘‘(g)’’; and 

6 (B) in paragraph (2)— 

7 (i) in subparagraph (A), by striking 

8 ‘‘or’’ at the end; 

9 (ii) in subparagraph (B), by striking 

10 ‘‘but’’ and inserting ‘‘or’’; and 

11 (iii) by adding at the end the fol12 lowing: 

13 ‘‘(C) the individual’s own recognizance;’’; 

14 (C) by redesignating paragraph (3) as 

15 paragraph (4); and 

16 (D) by inserting after paragraph (2) the 

17 following: 

18 ‘‘(3) may enroll the alien in a secure alter19 natives program; but’’; and 

20 (2) by inserting after subsection (a) the fol21 lowing: 

22 ‘‘(b) DETENTION DECISION STANDARDS.— 

23 ‘‘(1) CRITERIA TO BE CONSIDERED.—If an 

24 alien is not subject to mandatory detention under 

25 subsection (g) or section 236A, the criteria that the 


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1 Secretary or the Attorney General shall use to dem2 onstrate that detention of the alien is necessary are 

3 the following: 

4 ‘‘(A) Whether the alien poses a risk to 

5 public safety, including a risk to national secu6 rity. 

7 ‘‘(B) Whether— 

8 ‘‘(i) the alien poses a risk of flight; 

9 and 

10 ‘‘(ii) there are no conditions of release 

11 that will reasonably ensure that the alien 

12 will appear for immigration proceedings, 

13 including bond or other conditions of re14 lease that reduce the risk of flight. 

15 ‘‘(2) EXCEPTION FOR MANDATORY DETAIN16 EES.—The requirements described in paragraph (1) 

17 shall not apply if the Secretary of Homeland Secu18 rity demonstrates by substantial evidence that the 

19 alien is subject to detention under subsection (g). 

20 ‘‘(c) CUSTODY DECISIONS FOR VULNERABLE POPU21 LATIONS.— 

22 ‘‘(1) IN GENERAL.—Not later than 72 hours 

23 after an individual is detained under this section 

24 (unless the 72-hour requirement is waived in writing 

25 by the individual), an individual who is a member of 


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1 a vulnerable population (as defined by section 

2 5(a)(3) of the Protect Citizens and Residents from 

3 Unlawful Detention Act) shall be released from the 

4 custody of the Department of Homeland Security 

5 and shall not be subject to electronic monitoring un6 less the Department demonstrates by a preponder7 ance of the evidence that the individual— 

8 ‘‘(A) is subject to mandatory custody or 

9 mandatory detention under subsection (g) or 

10 section 236A; 

11 ‘‘(B) poses a risk to the national security 

12 of the United States; or 

13 ‘‘(C) is a flight risk and the risk cannot be 

14 mitigated through supervision in a non-custo15 dial secure alternatives program. 

16 ‘‘(2) RELEASE.—An individual shall be released 

17 from custody under this subsection— 

18 ‘‘(A) on the individual’s own recognizance; 

19 ‘‘(B) by posting a minimum bond under 

20 subsection (a)(2)(a); or 

21 ‘‘(C) on parole in accordance with section 

22 212(d)(5)(A). 

23 ‘‘(d) DECISIONS TO DETAIN ALIENS.— 

24 ‘‘(1) IN GENERAL.—All detention decisions 

25 under this section shall— 


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1 ‘‘(A) be made in writing by an official of 

2 the Department of Homeland Security; 

3 ‘‘(B) specify the reasons for the decision, if 

4 the decision is made to continue the detention 

5 without bond or parole; and 

6 ‘‘(C) be served upon the detainee, in the 

7 language spoken by the alien, not later than 72 

8 hours after— 

9 ‘‘(i) the commencement of the deten10 tion; or 

11 ‘‘(ii) a positive determination of cred12 ible fear of persecution or reasonable fear 

13 of persecution or torture, if the detainee is 

14 subject to section 235 or 241(a)(5). 

15 ‘‘(2) REDETERMINATION.— 

16 ‘‘(A) REQUEST.—Any alien detained by 

17 the Department of Homeland Security, at any 

18 time after being served with the decision de19 scribed in paragraph (1)(A), may request a re20 determination of such decision by an immigra21 tion judge. 

22 ‘‘(B) OTHER DECISIONS.—All custody de23 cisions by the Secretary of Homeland Security 

24 shall be subject to redetermination by an immi25 gration judge. 


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1 ‘‘(C) SAVINGS PROVISION.—Nothing in 

2 this paragraph may be construed to prevent a 

3 detainee from requesting a bond redetermina4 tion. 

5 ‘‘(e) SECURE ALTERNATIVES PROGRAMS.— 

6 ‘‘(1) IN GENERAL.—The Secretary of Homeland 

7 Security shall establish secure alternatives programs 

8 to ensure public safety and appearances at immigra9 tion proceedings. 

10 ‘‘(2) CONTRACT AUTHORITY.—The Secretary 

11 shall contract with nongovernmental organizations to 

12 conduct screening of detainees, provide appearance 

13 assistance services, and operate community-based 

14 supervision programs. 

15 ‘‘(3) INDIVIDUALIZED DETERMINATIONS.— 

16 When deciding whether to use secure alternatives, 

17 the Secretary shall make an individualized deter18 mination and review each case on a monthly basis. 

19 ‘‘(4) CUSTODY.—If an individual is not eligible 

20 for release from custody, the Secretary shall con21 sider the alien for placement in secure alternatives 

22 that maintain custody over the alien, including the 

23 use of electronic ankle devices. The Secretary may 

24 use secure alternatives programs to maintain cusVerDate Nov 24 2008 00:39 Dec 17, 2009 Jkt 089200 PO 00000 Frm 00163 Fmt 6652 Sfmt 6201 E:\BILLS\H4321.IH H4321

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1 tody over any alien detained under this Act except 

2 for aliens detained under section 236A.’’. 

3 SEC. 161. REPORT ON PROTECTIONS FOR VULNERABLE 

4 POPULATIONS IMPACTED BY IMMIGRATION 

5 ENFORCEMENT ACTIVITIES. 

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

7 year after the date of the enactment of this Act, and annu8 ally thereafter, the Secretary of Homeland Security shall 

9 submit a report to Congress that describes the impact of 

10 immigration-related enforcement activities and fugitive op11 erations on United States citizens, lawful permanent resi12 dents, individuals otherwise lawfully present in the United 

13 States, and, where possible, undocumented aliens present 

14 in the United States. 

15 (b) CONTENT.—The report submitted under sub16 section (a) shall include an assessment of— 

17 (1) the number of individuals apprehended dur18 ing immigration-related enforcement activities who 

19 are children, United States citizens, lawful perma20 nent residents, lawfully present non-citizens; 

21 (2) immigration-related apprehensions at 

22 homes, schools, school bus stops, day care centers, 

23 colleges, places of worship, hospitals, health care 

24 clinics, funeral homes, cemeteries, victim services 

25 agencies, social services agencies, head start centers, 


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1 recreation centers, legal service providers, courts and 

2 community centers; 

3 (3) apprehensions, detentions, and removals of 

4 sole caregivers, primary breadwinners, pregnant and 

5 nursing mothers, and other vulnerable populations 

6 during an immigration-related enforcement activity; 

7 (4) the extent to which the Department of 

8 Homeland Security cooperates and coordinates with 

9 State and local law enforcement during immigration10 related enforcement activities; 

11 (5) the number of immigration-related enforce12 ment apprehensions resulting from cooperation with 

13 State and local law enforcement; 

14 (6) whether apprehended individuals are pro15 vided access to a telephone; 

16 (7) how quickly apprehended individuals are 

17 provided access to a telephone; 

18 (8) the manner through which family members 

19 of the target population of the immigration-related 

20 enforcement activity are notified of their family 

21 member’s detention; 

22 (9) the number of parents, guardians, or care23 givers of children removed from the United States; 


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1 (10) the number of parents, guardians, or care2 givers of children removed from the United States 

3 whose children accompany or join them; 

4 (11) the number of parents, guardians, or care5 givers of children removed from the United States 

6 who are removed without their children; 

7 (12) the number of occasions on which both 

8 parents of a particular children are removed from 

9 the United States without their children; 

10 (13) the length of time the parents, guardians, 

11 or caregivers of children were present in the United 

12 States before their removal from the United Sates; 

13 (14) the number of United States citizen chil14 dren that remain in the United States after the re15 moval of a parent, guardian, or caregiver; 

16 (15) the number of individuals apprehended de17 termined to be part of a vulnerable population re18 leased within specified time limit under section 

19 160(c); 

20 (16) the length of time between when an indi21 vidual is determined to be part of a vulnerable popu22 lation and that individual is released under section 

23 160(c); 

24 (17) the methodology of the Department of 

25 Homeland Security for notifying agents and entities 


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1 under agreement with the Department of Homeland 

2 Security about standards regarding enforcement ac3 tions concerning vulnerable populations and holding 

4 them accountable when such standards are violated; 

5 (18) the number of officials of the Department 

6 of Homeland Security disciplined for violations dur7 ing apprehensions and in making detention deci8 sions; 

9 (19) transfers of immigrants during the course 

10 of an immigration-related enforcement activity, in11 cluding— 

12 (A) whether the immigrants had access to 

13 legal counsel before being transferred; 

14 (B) whether the immigrant received notice 

15 of an impending transfer; and 

16 (C) whether the immigrant was evaluated 

17 for vulnerability under section 160(a) before 

18 being transferred; 

19 (20) apprehension procedures for immigration20 related enforcement activities, and compliance with 

21 screening procedures for vulnerable populations; 

22 (21) recommendations for improving immigra23 tion-related enforcement activities and fugitive oper24 ations by reducing the negative impact on children 

25 and vulnerable populations; 


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1 (22) secure alternatives programs, including the 

2 types of programs used, number of individuals 

3 placed in theses programs, reasons for not placing 

4 immigrants that qualify as a member of a vulnerable 

5 population as defined in section 160(a) in these pro6 grams, percentage of cases in which adjustment of 

7 immigration status is granted, percentage of cases in 

8 which removal is undertaken, and frequency of ab9 sconding; and 

10 (23) the number of individuals apprehended 

11 after officials were notified by a health or mental 

12 health professional. 

13 SEC. 162. FAMILY DETENTION AND UNITY PROTECTIONS. 

14 (a) DEFINITION OF FAMILIES WITH CHILDREN.—- 

15 Family with Children is defined as any parent or legal 

16 guardian who is apprehended with one or more of their 

17 children. 

18 (b) PLACEMENT IN REMOVAL PROCEEDINGS.—Any 

19 family with children sought to be removed by the Depart20 ment of Homeland Security shall be placed in removal pro21 ceedings under section 240 of the Immigration and Na22 tionality Act (8 U.S.C. 1229a). 

23 (c) CUSTODY OF FAMILIES WITH CHILDREN.—The 

24 following requirements shall apply with respect to families 

25 with children: 


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1 (1) Families with children shall not be sepa2 rated or taken into custody except when justified by 

3 exceptional circumstances, or when required by law. 

4 (2) In exceptional circumstances where release 

5 or a secure alternatives program is not an option, 

6 the Secretary shall ensure that— 

7 (A) special non-penal, residential, home8 like facilities that enable families to live as a 

9 family unit are designed to house families with 

10 children, taking into account the particular 

11 needs and vulnerabilities of the children; 

12 (B) procedures and conditions of custody 

13 are appropriate for families with children; 

14 (C) entities with demonstrated experience 

15 and expertise in child welfare shall staff and be 

16 responsible for the management of facilities 

17 housing families with children; 

18 (D) no restrictions on freedom of move19 ment; visitations; telephone, internet, library, 

20 and law library access; possession of personal 

21 property, including personal clothing; age ap22 propriate education; or religious practice shall 

23 apply other than to prevent flight and ensure 

24 the safety of residents; 


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1 (E) individualized reviews by an immigra2 tion judge of each family’s well being, custody 

3 status and the need for continued detention are 

4 conducted every 30 days for any family held in 

5 such a facility for more than three weeks, and 

6 all families shall be notified in writing of the 

7 decision and of the individualized reasons for 

8 the decision; and 

9 (F) parents retain fundamental parental 

10 rights and responsibilities, including the dis11 cipline of children, in keeping with applicable 

12 State laws. 

13 (d) DISCRETIONARY WAIVER AUTHORITY FOR FAMI14 LIES WITH CHILDREN.—Section 235(b)(1)(B)(iii) of the 

15 Immigration and Nationality Act (8 U.S.C. 

16 1225(b)(1)(B)(iii)) is amended— 

17 (1) in subclause (IV), by striking ‘‘Any alien’’ 

18 and inserting ‘‘Except as provided in subclause (V), 

19 any alien’’; and 

20 (2) by adding at the end the following: 

21 ‘‘(V) DISCRETIONARY WAIVER

22 AUTHORITY FOR FAMILIES WITH

23 CHILDREN.—The Secretary of Home24 land Security may decide for humani25 tarian reasons or significant public 


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1 benefit not to detain families with 

2 children who are otherwise subject to 

3 mandatory detention under subclause 

4 (IV).’’. 

5 SEC. 163. APPREHENSION PROCEDURES FOR FAMILIES 

6 AND PARENTS. 

7 The Department of Homeland Security and entities 

8 under agreement with the Department of Homeland Secu9 rity shall— 

10 (1) offer confidential psychosocial and mental 

11 health services to children and family members of 

12 such individuals at the time of the apprehension; 

13 (2) provide, and advertise in the mainstream 

14 and foreign language media, as well as make avail15 able to the public via the website of the Department 

16 of Homeland Security, a toll-free number through 

17 which family members of persons apprehended as a 

18 result of an immigration enforcement-related activity 

19 may report information relevant to the release of an 

20 apprehended family member as a member of a vul21 nerable population, which will be conveyed to the ap22 propriate Department of Homeland Security official 

23 and applicable SSA, and through which State child 

24 welfare service providers, family members, and legal 

25 counsel representing those who are apprehended may 


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1 obtain information about the apprehended family 

2 members, including their location, in English and 

3 the majority language of those who are apprehended; 

4 (3) if there is reason to believe that an indi5 vidual who is apprehended is a parent, legal guard6 ian, or primary caregiver relative of a dependent 

7 child in the United States, provide this parent, legal 

8 guardian, or primary caregiver relative with— 

9 (A) confidential and toll-free telephone 

10 calls to arrange for care of dependent children 

11 within 2 hours of screening; 

12 (B) information regarding and contact in13 formation for legal service providers, organiza14 tions, and attorneys that can offer free legal ad15 vice regarding child welfare and custody deter16 minations; and 

17 (C) information regarding and contact in18 formation for multiple State and local child wel19 fare providers; 

20 (4) ensure that personnel of the Department of 

21 Homeland Security and of entities operating under 

22 agreement with the Department do not— 

23 (A) interrogate or screen individuals in the 

24 immediate presence of children; 


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1 (B) interrogate, arrest, or detain any child 

2 apprehended with his or her parent or parents 

3 without the presence or consent of a parent, 

4 family member, legal guardian, or legal counsel; 

5 or 

6 (C) compel or request children to translate 

7 for other individuals who are encountered as 

8 part of an immigration enforcement-related ac9 tivity; and 

10 (5) ensure that the best interests of children 

11 are considered in decisions and actions relating to 

12 the detention or release of any individual appre13 hended by the Department of Homeland Security, 

14 and that there be a preference for family unity 

15 whenever appropriate. 

16 SEC. 164. CHILD WELFARE SERVICES FOR CHILDREN SEPA17 RATED FROM PARENTS DETAINED OR RE18 MOVED FROM THE UNITED STATES FOR IM19 MIGRATION VIOLATIONS. 

20 (a) STATE PLAN REQUIREMENTS.—Section 471(a) 

21 of the Social Security Act (42 U.S.C. 671(a)) is amend22 ed— 

23 (1) by striking ‘‘and’’ at the end of paragraph 

24 (32); 


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1 (2) by striking the period at the end of para2 graph (33) and inserting ‘‘; and’’; and 

3 (3) by adding at the end the following: 

4 ‘‘(34) provides that the State shall— 

5 ‘‘(A) create and implement protocols to 

6 provide guidance on how all employees of State 

7 agencies providing services to children under 

8 the State plan should handle cases of separated 

9 children that take into account the best interest 

10 of the child, including consideration of the best 

11 outcome for the family of the child; 

12 ‘‘(B) develop and implement memoranda of 

13 understanding or protocols with the Depart14 ment of Homeland Security, Federal, State, 

15 and local government agencies to facilitate com16 munication between the agencies and such a 

17 child, a parent, guardian, or relative referred to 

18 in section 475(9)(B), family members of such a 

19 child, family courts, providers of services to 

20 such a child under the State plan, providers of 

21 long-term care to such a child, and legal rep22 resentatives of such a child or of such a parent, 

23 guardian, or relative; 

24 ‘‘(C) develop and implement joint protocols 

25 and training with law enforcement agencies to 


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1 minimize the trauma, at the time of the appre2 hension of such a parent, guardian, or relative, 

3 to a child who will become a separated child as 

4 a result of the apprehension, including protocols 

5 and training for apprehension of such a parent, 

6 guardian, or relative in the presence of the child 

7 and how to best ensure appropriate and prompt 

8 care arrangements for the child; 

9 ‘‘(D) ensure that the case manager for 

10 such a child is capable of communicating in the 

11 native language of the child and of the family 

12 of the child, or an interpreter who is so capable 

13 is provided to communicate with the child and 

14 the family of the child at no cost to the child 

15 or the family of the child; 

16 ‘‘(E) require that, in all decisions and ac17 tions relating to the care, custody, and place18 ment of such a child, the best interest of the 

19 child, including the best outcome for the family 

20 of the child, be considered, and ensure that the 

21 decisions are based on clearly articulated fac22 tors that do not include predictions or conclu23 sions about immigration status or pending Fed24 eral immigration proceedings; and 


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1 ‘‘(F) coordinate with the Department of 

2 Homeland Security, foreign consular officials 

3 and nongovernmental organizations designated 

4 by the Secretary to ensure that parents of such 

5 a child who wish for the child to accompany 

6 them to their country of origin are given ade7 quate time to obtain a passport and visa, collect 

8 all relevant vital documents such as birth cer9 tificate, health and educational records, and 

10 other information.’’. 

11 (b) ADDITIONAL INFORMATION TO BE INCLUDED IN

12 CASE PLAN.—Section 475(1) of such Act (42 U.S.C. 

13 675(1)) is amended by adding at the end the following: 

14 ‘‘(H) In the case of a separated child with 

15 respect to whom the State plan requires the 

16 State to provide services pursuant to section 

17 471(a)(34)— 

18 ‘‘(i) the location of the parent, guard19 ian, or relative referred to in paragraph 

20 (9)(B) of this subsection from whom the 

21 child has been separated; and 

22 ‘‘(ii) a written record of each disclo23 sure to a government agency or person 

24 (other than such a parent, guardian, or 

25 relative) of information gathered in the 


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1 course of tracking the care, custody, and 

2 placement of, and follow-up services pro3 vided to, the child.’’. 

4 (c) SEPARATED CHILDREN DEFINED.—Section 475 

5 of such Act (42 U.S.C. 675) is amended by adding at the 

6 end the following: 

7 ‘‘(9) The term ‘separated children’ means indi8 viduals who— 

9 ‘‘(A) have a parent, legal guardian, or pri10 mary caregiver relative who has been detained 

11 by a Federal, State, or local law enforcement 

12 agency in the enforcement of an immigration 

13 law, or removed from the United States as a re14 sult of a violation of such a law; and 

15 ‘‘(B) are in foster care under the responsi16 bility of a State.’’. 

17 SEC. 165. VULNERABLE POPULATION AND CHILD WELFARE 

18 TRAINING FOR IMMIGRATION ENFORCEMENT 

19 OFFICERS. 

20 (a) MANDATORY TRAINING.— 

21 (1) IN GENERAL.—The Secretary of Homeland 

22 Security, in consultation with the Secretary of 

23 Health and Human Services, and independent child 

24 welfare experts shall mandate live specialized train25 ing of all Federal personnel, relevant personnel emVerDate Nov 24 2008 00:39 Dec 17, 2009 Jkt 089200 PO 00000 Frm 00177 Fmt 6652 Sfmt 6201 E:\BILLS\H4321.IH H4321

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1 ployed by those States reimbursed for activities re2 lated to care and services for separated children, and 

3 State and local personnel and relevant SSAs, who 

4 come into contact with vulnerable populations as de5 fined at section 160(a) in all relevant legal authori6 ties, policies, and procedures pertaining to the hu7 manitarian and due process protections for these 

8 vulnerable populations. 

9 (2) VULNERABLE POPULATIONS.—Such per10 sonnel shall be trained to work with vulnerable popu11 lations, including identifying members of a vulner12 able population, and identifying members of a vul13 nerable population for whom asylum or special juve14 nile immigrant relief may be appropriate. 

15 (3) MENTAL HEALTH NEEDS.—Personnel shall 

16 establish collaborative relationships with local mental 

17 health professionals to provide training in prepara18 tion for apprehensions of individuals with mental 

19 health needs. 

20 (4) BEST PRACTICES.—Participants will be re21 quired to undertake periodic and continuing training 

22 on best practices and changes in the law, policies, 

23 and procedures for these vulnerable populations. 

24 (b) MEMORANDA OF UNDERSTANDING.—The Sec25 retary of Homeland Security shall require all law enforceVerDate Nov 24 2008 00:39 Dec 17, 2009 Jkt 089200 PO 00000 Frm 00178 Fmt 6652 Sfmt 6201 E:\BILLS\H4321.IH H4321

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1 ment agencies under agreement with the Department of 

2 Homeland Security to establish Memoranda of Under3 standing with SSAs with respect to the availability of serv4 ices relevant to the humanitarian and due process protec5 tions for vulnerable populations as defined in section 

6 160(a). 

7 SEC. 166. ACCESS FOR PARENTS, LEGAL GUARDIANS, AND, 

8 PRIMARY CAREGIVER RELATIVES. 

9 (a) IN GENERAL.—The Secretary of the Department 

10 of Homeland Security shall ensure that all detention facili11 ties operated by or under agreement with the Department 

12 take steps to preserve family unity and ensure that the 

13 best outcome for families can be considered in decisions 

14 and actions relating to the custody of children whose par15 ent, legal guardian, or primary caregiver relative is de16 tained by reason of the parent’s, legal guardian’s, or pri17 mary caregiver relative’s immigration status. 

18 (b) TRAINING.—The Secretary of Homeland Secu19 rity, in consultation with the Department of Health and 

20 Human Services, the Department of Justice, the Depart21 ment of State, and independent family law experts, shall 

22 mandate live, specialized training of all personnel at deten23 tion facilities operated by the Department of Homeland 

24 Security or under agreement with the Department of 

25 Homeland Security in all relevant legal authorities, poliVerDate Nov 24 2008 00:39 Dec 17, 2009 Jkt 089200 PO 00000 Frm 00179 Fmt 6652 Sfmt 6201 E:\BILLS\H4321.IH H4321

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1 cies and procedures related to ensuring that parents, legal 

2 guardians, and primary caregiver relatives of children 

3 have regular, ongoing and in-person access to children, 

4 State family courts, consular officers and staff of State 

5 social service agencies responsible for administering child 

6 welfare programs. Such personnel shall be required to un7 dertake periodic and continuing training on best practices 

8 and changes in relevant law, policies, and procedures per9 taining to the preservation of family unity. 

10 (c) ACCESS TO CHILDREN, LOCAL AND STATE

11 COURTS, CHILD PROTECTIVE SERVICES, AND CONSULAR

12 OFFICIALS.—The Secretary of Homeland Security shall 

13 be responsible for— 

14 (1) ensuring that detained parents, legal guard15 ians, and primary caregiver relatives of children 

16 under 18 years of age are granted free and confiden17 tial phone calls with their children on a daily basis; 

18 (2) ensuring that detained parents, legal guard19 ians, and primary caregiver relatives of children 

20 under 18 years of age are permitted regular contact 

21 visits with their children; 

22 (3) ensuring that detained parents, legal guard23 ians, and primary caregiver relatives of children 

24 under 18 years of age are able to participate fully, 

25 and to the extent possible in-person, in all family 


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1 court proceedings and any other proceeding impact2 ing upon custody of their children; 

3 (4) ensuring that detained parents, legal guard4 ians, and primary caregiver relatives of children 

5 under 18 years of age are able to fully participate 

6 in and comply with all family court orders impacting 

7 upon custody of their child; 

8 (5) ensuring that detained parents, legal guard9 ians, and primary caregiver relatives of children 

10 under 18 years of age have regular, on-site access to 

11 reunification programming including parenting class12 es; 

13 (6) ensuring that detained parents, legal guard14 ians, and primary caregiver relatives of children 

15 under 18 years of age are provided with contact in16 formation for child protective services entities and 

17 family courts in all fifty States, the District of Co18 lumbia, all United States territories, and are granted 

19 free, confidential, and unlimited telephone access to 

20 child protective services entities and family courts to 

21 report child abuse, abandonment or neglect; 

22 (7) ensuring that detained parents, legal guard23 ians, and primary caregiver relatives of children 

24 under 18 years of age are granted regular, confiden25 tial and in-person access to consular officials; free, 


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1 unlimited, confidential phone calls to consular offi2 cials; and access to United States passport applica3 tions for the purpose of obtaining travel documents 

4 for their children; 

5 (8) ensuring that detained parents, legal guard6 ians, and primary caregiver relatives of children 

7 under 18 years of age who wish to take their chil8 dren with them to their country of origin are grant9 ed adequate time prior to being removed to obtain 

10 a passport and other relevant travel documents nec11 essary for children to accompany them on their re12 turn to their country of origin or join them in their 

13 country of origin; and 

14 (9) facilitating detained parents’, legal guard15 ians’, and primary caregiver relatives’ ability to re16 unify with their children under 18 years of age at 

17 the time of removal to their country of origin, in18 cluding providing information about the detained 

19 parent, legal guardian, or primary caregiver rel20 ative’s travel arrangements to State social service 

21 agencies or other caregivers. 


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1 SEC. 167. ENHANCED PROTECTIONS FOR VULNERABLE UN2 ACCOMPANIED ALIEN CHILDREN AND FE3 MALE DETAINEES. 

4 (a) MANDATORY TRAINING.—The Secretary of 

5 Homeland Security, in consultation with the Office of Ref6 ugee Resettlement of the Department of Health and 

7 Human Services and independent child welfare experts, 

8 shall mandate live training of all personnel who come into 

9 contact with unaccompanied alien children (as defined in 

10 section 462 of the Homeland Security Act of 2002 (6 

11 U.S.C. 279)) in all relevant legal authorities, policies, and 

12 procedures pertaining to this vulnerable population. 

13 (b) CARE AND TRANSPORTATION.—Notwithstanding 

14 any other provision of law, the Secretary of Homeland Se15 curity shall ensure that all unaccompanied children who 

16 will undergo any immigration proceedings before the De17 partment of Homeland Security and the Executive Office 

18 for Immigration Review are duly transported and placed 

19 in the care and legal and physical custody of the Office 

20 of Refugee Resettlement within a maximum of 24 hours 

21 of their apprehension absent narrowly defined exceptional 

22 circumstances, including a natural disaster or comparable 

23 emergency beyond the control of the Secretary of Home24 land Security or the Office of Refugee Resettlement. The 

25 Secretary of Homeland Security shall ensure that female 

26 officers are responsible and at all times present during the 


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1 transfer and transport of female detainees who are in the 

2 custody of the Secretary of Homeland Security. 

3 (c) NOTIFICATION.—The Secretary of Homeland Se4 curity shall immediately notify the Office of Refugee Re5 settlement of an unaccompanied alien child in the custody 

6 of the Department of Homeland Security to effectively and 

7 efficiently coordinate the child’s transfer to and placement 

8 with the Office of Refugee Resettlement. 

9 (d) NOTICE OF RIGHTS AND ACCESS TO COUNSEL.— 

10 The Secretary of Homeland Security shall ensure that an 

11 independent licensed social worker, as described in section 

12 153(b)(1)(A), provides all unaccompanied alien children 

13 upon apprehension with both a video orientation and oral 

14 and written notice of their rights under the Immigration 

15 and Nationality Act including their rights to relief from 

16 removal and their rights to confer with counsel (as guar17 anteed under section 292 of such Act), family, or friends 

18 while in the Department of Homeland Security’s tem19 porary custody and relevant complaint mechanisms to re20 port any abuse or misconduct they may have experienced. 

21 The Secretary of Homeland Security shall ensure that the 

22 video orientation and written notice of rights is available 

23 in English and in the five most common native languages 

24 spoken by the unaccompanied children held in custody at 

25 that location during the preceding fiscal year, and that 


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1 the oral notice of rights is available in English and in the 

2 most common native language spoken by the unaccom3 panied children held in custody at that location during the 

4 preceding fiscal year. 

5 (e) CONFIDENTIALITY.—The Secretary of Health 

6 and Human Services shall maintain the privacy and con7 fidentiality of all information gathered in the course of 

8 providing care, custody, placement and follow-up services 

9 to unaccompanied alien children, consistent with the best 

10 interest of the unaccompanied alien child, by not dis11 closing such information to other government agencies or 

12 nonparental third parties. The Secretary may share infor13 mation when authorized to do so by the child and when 

14 consistent with the child’s best interest. The Secretary 

15 may provide information to a duly recognized law enforce16 ment entity, if such disclosure would prevent imminent 

17 and serious harm to another individual. All disclosures 

18 shall be duly recorded in writing and placed in the child’s 

19 files. 

20 (f) OTHER POLICIES AND PROCEDURES.—The Sec21 retary shall further adopt fundamental child protection 

22 policies and procedures— 

23 (1) for reliable age-determinations of children 

24 which exclude the use of fallible forensic testing of 


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1 children’s bone and teeth developed in consultation 

2 with medical and child welfare experts; 

3 (2) to ensure the safe and secure repatriation 

4 and reintegration of unaccompanied alien children to 

5 their home countries through specialized programs 

6 developed in close consultation with the Secretary of 

7 State, the Office of the Refugee Resettlement and 

8 reputable independent child welfare experts includ9 ing placement of children with their families or non10 governmental agencies to provide food, shelter and 

11 vocational training and microfinance opportunities; 

12 (3) to utilize all legal authorities to defer the 

13 child’s removal if the child faces a risk of life-threat14 ening harm upon return including due to the child’s 

15 mental health or medical condition; and 

16 (4) to ensure that unaccompanied alien children 

17 (as defined in section 462 of the Homeland Security 

18 Act of 2002 (6 U.S.C. 279)) are physically sepa19 rated from any adult who is not a family member, 

20 guardian, or caregiver and are separated by sight 

21 and sound from immigration detainees and inmates 

22 with criminal convictions, pretrial inmates facing 

23 criminal prosecution, children who have been adju24 dicated delinquents or convicted of adult offenses or 

25 are pending delinquency or criminal proceedings, 


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1 and those inmates exhibiting violent behavior while 

2 in detention as is consistent with the Juvenile Jus3 tice and Delinquency Prevention Act of 1974 (42 

4 U.S.C. 5601 et seq.). 

5 SEC. 168. PREVENTING UNNECESSARY DETENTION OF REF6 UGEES. 

7 Section 209 of the Immigration and Nationality Act 

8 (8 U.S.C. 1159) is amended— 

9 (1) in subsection (a)(1) by striking ‘‘return or 

10 be returned to the Department of Homeland Secu11 rity for inspection and examination for admission’’ 

12 and also ‘‘in accordance with the provisions of sec13 tions 235, 240, and 241’’ and inserting ‘‘be eligible 

14 for adjustment of status’’; 

15 (2) in subsection (a)(2) by striking ‘‘upon in16 spection and examination’’; and 

17 (3) in subsection (c) by adding at the end ‘‘An 

18 application for adjustment under this section may be 

19 filed up to 3 months before the date the applicant 

20 would first otherwise be eligible for adjustment 

21 under this section.’’. 

22 SEC. 169. REPORTS ON PROTECTIONS FROM UNLAWFUL 

23 DETENTION. 

24 (a) REPORT REQUIREMENT.—Not later than 1 year 

25 after the date of the enactment of this Act, and annually 


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1 thereafter, the Secretary shall prepare and submit a report 

2 to Congress that describes the impact of worksite and fu3 gitive operations on United States citizens, lawful perma4 nent residents, and individuals otherwise lawfully present 

5 in the United States. 

6 (b) CONTENT.—The report submitted under sub7 section (a) shall include an assessment of— 

8 (1)(A) United States Immigration and Customs 

9 Enforcement protocol for humanitarian screening 

10 during a worksite enforcement action; 

11 (B) the compliance with such protocol; and 

12 (C) the nature of any related protocol in small13 er worksite or nonworksite actions; 

14 (2) collateral arrests under the National Fugi15 tive Operations Program and worksite enforcement 

16 initiatives; 

17 (3) whether individuals detained in an immigra18 tion-related enforcement activity are notified of their 

19 right to counsel; 

20 (4) whether United States Immigration and 

21 Customs Enforcement agents— 

22 (A) use excessive force in executing war23 rants, arrests, detentions, or other immigration24 enforcement activities; 


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1 (B) enter private homes or residences with2 out a search warrant or consent; or 

3 (C) display and use weapons during immi4 gration-enforcement activities or interrogations; 

5 (5) whether United States Immigration and 

6 Customs Enforcement agents identify themselves 

7 when entering a location for enforcement purposes; 

8 (6) the conditions under which individuals are 

9 confined; 

10 (7) whether detainees are notified of their 

11 rights in a language they can understand; 

12 (8) whether individuals detained during a raid 

13 or an immigration enforcement activity are forced or 

14 coerced to sign any documents or waive any rights 

15 without consulting with an attorney; 

16 (9) the procedures used by the Department of 

17 Homeland Security— 

18 (A) to notify agents about humanitarian 

19 standards regarding enforcement actions; and 

20 (B) hold agents accountable when they vio21 late such standards; 

22 (10) the per detainee cost of each raid involving 

23 more than 50 detainees; 


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1 (11) the number of United States Immigration 

2 and Customs Enforcement agents disciplined for vio3 lations in detention proceedings; and 

4 (12) recommendations for improving worksite 

5 operations and fugitive operations. 

6 (c) AUTHORIZATION OF APPROPRIATIONS.—There is 

7 authorized to be appropriated such sums as may be nec8 essary to carry out this section. 

9 SEC. 170. RULEMAKING. 

10 Not later than 1 year after the date of the enactment 

11 of this Act, the Secretary shall promulgate regulations to 

12 implement this subtitle and the amendments made by this 

13 subtitle. 

14 Subtitle C—Enforcement 

15 SEC. 181. LABOR ENFORCEMENT. 

16 (a) LABOR ENFORCEMENT ACTIONS.—Section 

17 274A(e) of the Immigration and Nationality Act (8 U.S.C. 

18 1324a(e)) is amended to add a new paragraph (10). 

19 ‘‘(10) CONDUCT IN ENFORCEMENT ACTIONS.— 

20 ‘‘(A) ENFORCEMENT ACTION.—When an 

21 enforcement action is undertaken by the De22 partment of Homeland Security and the De23 partment receives information that there is a 

24 labor dispute in progress, or that information 

25 was provided to the Department of Homeland 


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1 Security to retaliate against employees for exer2 cising their employment rights, the Department 

3 shall ensure that any aliens who are arrested or 

4 detained and are necessary for the prosecution 

5 of any labor or employment law violations are 

6 not removed from the country without notifying 

7 the appropriate law enforcement agency that 

8 has jurisdiction over the violations and pro9 viding the agency with the opportunity to inter10 view such aliens. The Department shall ensure 

11 that no aliens entitled to a stay of removal 

12 under this section are removed. 

13 ‘‘(B) INTERVIEWS.—Any arrangements for 

14 aliens to be held or interviewed shall be made 

15 in consultation with the relevant labor and em16 ployment law enforcement agencies. 

17 ‘‘(C) STAY OF REMOVAL.— 

18 ‘‘(i) An alien against whom removal 

19 proceedings have been initiated pursuant 

20 to chapter 4 of title III of the Immigration 

21 and Nationality Act, who has filed a work22 place claim or who is a material witness in 

23 any pending or anticipated proceeding in24 volving a workplace claim, shall be entitled 

25 to a stay of removal and to an employment 


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1 authorized endorsement unless the Depart2 ment establishes by a preponderance of the 

3 evidence in proceedings before the immi4 gration judge presiding over that alien’s 

5 removal hearing that— 

6 ‘‘(I) the Department initiated the 

7 alien’s removal proceeding for wholly 

8 independent reasons and not in any 

9 respect based on, or as a result of, 

10 any information provided to or ob11 tained by the Department from the 

12 aliens employer, from any outside 

13 source, including any anonymous 

14 source, or as a result of the filing or 

15 prosecution of the workplace claim; 

16 and 

17 ‘‘(II) the workplace claim was 

18 filed in a bad faith with the intent to 

19 delay or avoid the alien’s removal. 

20 ‘‘(ii) Any stay of removal or work au21 thorization issued pursuant to subsection 

22 (i) shall remain valid and in effect at least 

23 during the pendency of the proceedings 

24 concerning such workplace claim. The Sec25 retary of Homeland Security shall extend 


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1 such relief for a period of not longer than 

2 3 additional years upon determining that— 

3 ‘‘(I) such relief would enable the 

4 alien asserting the workplace claim to 

5 be made whole; 

6 ‘‘(II) the deterrent goals of any 

7 statute underlying the workplace 

8 claim would thereby be served; or 

9 ‘‘(III) such extension would oth10 erwise further the interests of justice. 

11 ‘‘(iii) In this section— 

12 ‘‘(I) the term ‘workplace claim’ 

13 shall include any claim, charge, com14 plaint, or grievance filed with or sub15 mitted to the employer, a Federal or 

16 State or local agency or court, or an 

17 arbitrator, to challenge an employer’s 

18 alleged civil or criminal violation of 

19 any legal or administrative rule or re20 quirement affecting the terms or con21 ditions of its workers employment, the 

22 treatment of workers, or the hiring or 

23 firing of its workers; and 

24 ‘‘(II) the term ‘material witness’ 

25 means an individual who presents a 


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1 declaration from an attorney inves2 tigating, prosecuting, or defending the 

3 workplace claim or from the presiding 

4 officer overseeing the workplace claim 

5 attesting that, to the best of the de6 clarant’s knowledge and belief, reason7 able cause exists to believe that the 

8 testimony of the individual will be rel9 evant to the outcome of the workplace 

10 claim.’’ 

11 (b) WHISTLE BLOWER PROTECTIONS; VICTIMS OF

12 CRIMINAL ACTIVITY.—Section 101(a)(15)(U) of the Im13 migration and Nationality Act (8 U.S.C. 1101(a)(15)(U)) 

14 is amended— 

15 (1) in clause (ii), by striking ‘‘and’’ at the end; 

16 (2) in clause (iii)— 

17 (A) by striking ‘‘or’’ before ‘‘attempt’’; and 

18 (B) by adding at the end the following: ‘‘a 

19 civil violation of Federal, State, orlocal employ20 ment or labor laws; and’’; and 

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

22 ‘‘(iv) the Secretary may not grant a 

23 petition filed by an alien based on a civil 

24 violation of Federal employment or labor 

25 laws unless the alien has— 


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1 ‘‘(I) a reasonable fear of retalia2 tion based on immigration status; 

3 ‘‘(II) has been threatened with 

4 retaliation based on immigration; or 

5 ‘‘(III) has been retaliated against 

6 based on immigration status for at7 tempting to remedy such violations; 

8 or’’. 

9 SEC. 182. MANDATORY ADDRESS REPORTING REQUIRE10 MENTS. 

11 (a) CLARIFYING ADDRESS REPORTING REQUIRE12 MENTS.—Section 265 (8 U.S.C. 1305) is amended— 

13 (1) in subsection (a)— 

14 (A) by striking ‘‘notify the Attorney Gen15 eral in writing’’ and inserting ‘‘submit written 

16 or electronic notification to the Secretary of 

17 Homeland Security, in a manner approved by 

18 the Secretary,’’; 

19 (B) by striking ‘‘the Attorney General may 

20 require’’ and inserting ‘‘the Secretary may re21 quire’’; and 

22 (C) by adding at the end the following: ‘‘If 

23 the alien is involved in proceedings before an 

24 immigration judge or in an administrative ap25 peal of such proceedings, the alien shall submit 


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1 to the Attorney General the alien’s current ad2 dress and a telephone number, if any, at which 

3 the alien may be contacted.’’; 

4 (2) in subsection (b), by striking ‘‘Attorney 

5 General’’ each place such term appears and inserting 

6 ‘‘Secretary of Homeland Security’’; 

7 (3) in subsection (c), by striking ‘‘given to such 

8 parent’’ and inserting ‘‘given by such parent’’; and 

9 (4) by adding at the end the following: 

10 ‘‘(d) ADDRESS TO BE PROVIDED.— 

11 ‘‘(1) IN GENERAL.—Except as otherwise pro12 vided by the Secretary under paragraph (2), an ad13 dress provided by an alien under this section shall 

14 be the alien’s current residential mailing address, 

15 and shall not be a post office box or other nonresi16 dential mailing address or the address of an attor17 ney, representative, labor organization, or employer. 

18 ‘‘(2) SPECIFIC REQUIREMENTS.—The Secretary 

19 may provide specific requirements with respect to— 

20 ‘‘(A) designated classes of aliens and spe21 cial circumstances, including aliens who are em22 ployed at a remote location; and 

23 ‘‘(B) the reporting of address information 

24 by aliens who are incarcerated in a Federal, 

25 State, or local correctional facility. 


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1 ‘‘(3) DETENTION.—An alien who is being de2 tained by the Secretary under this Act is not re3 quired to report the alien’s current address under 

4 this section during the time the alien remains in de5 tention, but shall be required to notify the Secretary 

6 of the alien’s address under this section at the time 

7 of the alien’s release from detention. 

8 ‘‘(e) USE OF MOST RECENT ADDRESS PROVIDED BY

9 THE ALIEN.— 

10 ‘‘(1) IN GENERAL.—Notwithstanding any other 

11 provision of law, the Secretary may provide for the 

12 appropriate coordination and cross referencing of 

13 address information provided by an alien under this 

14 section with other information relating to the alien’s 

15 address under other Federal programs, including— 

16 ‘‘(A) any information pertaining to the 

17 alien, which is submitted in any application, pe18 tition, or motion filed under this Act with the 

19 Secretary of Homeland Security, the Secretary 

20 of State, or the Secretary of Labor; 

21 ‘‘(B) any information available to the At22 torney General with respect to an alien in a 

23 proceeding before an immigration judge or an 

24 administrative appeal or judicial review of such 

25 proceeding; 


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1 ‘‘(C) any information collected with respect 

2 to nonimmigrant foreign students or exchange 

3 program participants under section 641 of the 

4 Illegal Immigration Reform and Immigrant Re5 sponsibility Act of 1996 (8 U.S.C. 1372); and 

6 ‘‘(D) any information collected from State 

7 or local correctional agencies pursuant to the 

8 State Criminal Alien Assistance Program. 

9 ‘‘(2) RELIANCE.—The Secretary may rely on 

10 the most recent address provided by the alien under 

11 this section or section 264 to send to the alien any 

12 notice, form, document, or other matter pertaining 

13 to Federal immigration laws, including service of a 

14 notice to appear. The Attorney General and the Sec15 retary may rely on the most recent address provided 

16 by the alien under section 239(a)(1)(F) to contact 

17 the alien about pending removal proceedings. 

18 ‘‘(3) OBLIGATION.—The alien’s provision of an 

19 address for any other purpose under the Federal im20 migration laws does not excuse the alien’s obligation 

21 to submit timely notice of the alien’s address to the 

22 Secretary under this section (or to the Attorney 

23 General under section 239(a)(1)(F) with respect to 

24 an alien in a proceeding before an immigration judge 

25 or an administrative appeal of such proceeding). 


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1 ‘‘(f) REQUIREMENT FOR DATABASE.—The Secretary 

2 of Homeland Security shall establish an electronic data3 base to timely record and preserve addresses provided 

4 under this section.’’. 

5 (b) CONFORMING CHANGES WITH RESPECT TO REG6 ISTRATION REQUIREMENTS.—Chapter 7 of title II (8 

7 U.S.C. 1301 et seq.) is amended— 

8 (1) in section 262(c), by striking ‘‘Attorney 

9 General’’ and inserting ‘‘Secretary of Homeland Se10 curity’’; 

11 (2) in section 263(a), by striking ‘‘Attorney 

12 General’’ and inserting ‘‘Secretary of Homeland Se13 curity’’; and 

14 (3) in section 264— 

15 (A) in subsections (a), (b), (c), and (d), by 

16 striking ‘‘Attorney General’’ each place it ap17 pears and inserting ‘‘Secretary of Homeland 

18 Security’’; and 

19 (B) in subsection (f)— 

20 (i) by striking ‘‘Attorney General is 

21 authorized’’ and inserting ‘‘Secretary of 

22 Homeland Security and Attorney General 

23 are authorized’’; and 


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1 (ii) by striking ‘‘Attorney General or 

2 the Service’’ and inserting ‘‘Secretary or 

3 the Attorney General’’. 

4 (c) EFFECT ON ELIGIBILITY FOR IMMIGRATION BEN5 EFITS.—If an alien fails to comply with section 262, 263, 

6 or 265 of the Immigration and Nationality Act (8 U.S.C. 

7 1302, 1303, and 1305) or section 264.1 of title 8, Code 

8 of Federal Regulations, or removal orders or voluntary de9 parture agreements based on any such section for acts 

10 committed prior to the enactment of this Act such failure 

11 shall not affect the eligibility of the alien to apply for a 

12 benefit under the Immigration and Nationality Act (8 

13 U.S.C. 1101 et seq.). 

14 (d) TECHNICAL AMENDMENTS.—Section 266 (8 

15 U.S.C. 1306) is amended by striking ‘‘Attorney General’’ 

16 each place it appears and inserting ‘‘Secretary of Home17 land Security’’. 

18 (e) EFFECTIVE DATES.— 

19 (1) IN GENERAL.—Except as provided in para20 graph (2), the amendments made by this section 

21 shall take effect on the date of the enactment of this 

22 Act. 

23 (2) EXCEPTIONS.—The amendments made by 

24 paragraphs (1)(A), (1)(B), (2), and (3) of subsection 

25 (a) shall take effect as if enacted on March 1, 2003. 


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1 SEC. 183. PREEMPTION OF STATE AND LOCAL LAW. 

2 (a) PREEMPTION.—This Act preempts any State or 

3 local law, contract, license, or other standard, require4 ment, action or instrument— 

5 (1) discriminating among persons on the basis 

6 of immigration status, except as specifically author7 ized in Federal law; or 

8 (2) imposing any sanction or liability— 

9 (A) on any individual based on his or her 

10 immigration status; 

11 (B) on any person or entity based on the 

12 immigration status of its clients, employees, 

13 tenants, or other associates; or 

14 (C) relating to a violation or alleged viola15 tion of immigration law. 

16 (b) DEFINITION.—For purposes of this section, ‘‘im17 migration status’’ refers to a person’s present or previous: 

18 visa classification, refugee status, temporary protected 

19 status, status as an immigrant lawfully admitted for per20 manent residence, lawful presence, work authorization, or 

21 other classification or category created by, or related to 

22 this, Act or the Immigration and Nationality Act. 

23 SEC. 184. DELEGATION OF IMMIGRATION AUTHORITY. 

24 Section 287(g) (8 U.S.C. 1357(g)) is amended to 

25 read as follows: 


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1 ‘‘(g) Except as provided in section 103(a)(10), 242, 

2 or 274(c), the authority to investigate, identify, appre3 hend, arrest, or detain persons for a violation of any sec4 tion of this Act or regulation pursuant to this Act is re5 stricted to immigration officers and employees of the De6 partment. Any such authority is further subject to any 

7 specific limitations set forth in this Act.’’. 

8 SEC. 185. IMMIGRATION AND CUSTOMS ENFORCEMENT OM9 BUDSMAN. 

10 (a) ESTABLISHMENT.—Subtitle D of title III of the 

11 Homeland Security Act of 2002 (6 U.S.C. 251 et seq.) 

12 is amended by adding at the end the following: 

13 ‘‘SEC. 447. IMMIGRATION AND CUSTOMS ENFORCEMENT 

14 OMBUDSMAN. 

15 ‘‘(a) IN GENERAL.—There established in the Depart16 ment of Homeland Security a position of Immigration and 

17 Customs Enforcement Ombudsman (referred to in this 

18 section as the ‘Ombudsman’). 

19 ‘‘(b) REQUIREMENTS.—The Ombudsman shall— 

20 ‘‘(1) report directly to the Assistant Secretary 

21 for Immigration and Customs Enforcement (referred 

22 to in this section as the ‘Assistant Secretary’); and 

23 ‘‘(2) have a background in immigration law. 

24 ‘‘(c) FUNCTIONS.—The Ombudsman shall— 


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1 ‘‘(1) undertake regular and unannounced in2 spections of detention facilities and local offices of 

3 United States Immigration and Customs Enforce4 ment to determine whether the facilities and offices 

5 comply with relevant policies, procedures, standards, 

6 laws, and regulations; 

7 ‘‘(2) report all findings of compliance or non8 compliance of the facilities and local offices de9 scribed in paragraph (1) to the Secretary and the 

10 Assistant Secretary; 

11 ‘‘(3) develop procedures for detainees or their 

12 representatives to submit confidential written com13 plaints directly to the Ombudsman; 

14 ‘‘(4) investigate and resolve all complaints, in15 cluding confidential and anonymous complaints, re16 lated to decisions, recommendations, acts, or omis17 sions made by the Assistant Secretary or the Com18 missioner of United States Customs and Border 

19 Protection in the course of custody and detention 

20 operations; 

21 ‘‘(5) initiate investigations into allegations of 

22 systemic problems at detention facilities; 

23 ‘‘(6) conduct any review or audit relating to de24 tention, as directed by the Secretary or Assistant 

25 Secretary; 


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1 ‘‘(7) refer matters, as appropriate, to the Office 

2 of Inspector General of the Department of Justice, 

3 the Office of Civil Rights and Civil Liberties of the 

4 Department, or any other relevant office or agency; 

5 ‘‘(8) propose changes in the policies or practices 

6 of United States Immigration and Customs Enforce7 ment to improve the treatment of United States citi8 zens and residents, immigrants, detainees, and oth9 ers subject to immigration-related enforcement oper10 ations; 

11 ‘‘(9) establish a public advisory group con12 sisting of nongovernmental organization representa13 tives and Federal, State, and local government offi14 cials with expertise in detention and vulnerable pop15 ulations to provide the Ombudsman with input on— 

16 ‘‘(A) the priorities of the Ombudsman; and 

17 ‘‘(B) current practices of United States 

18 Immigration and Customs Enforcement; and 

19 ‘‘(10) recommend to the Assistant Secretary 

20 personnel action based on any finding of noncompli21 ance. 

22 ‘‘(d) ANNUAL REPORT.— 

23 ‘‘(1) OBJECTIVES.—Not later than June 30 of 

24 each year, the Ombudsman shall prepare and submit 

25 a report to the Committee on the Judiciary of the 


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1 Senate and the Committee on the Judiciary of the 

2 House of Representatives on the objectives of the 

3 Office of the Ombudsman for the next fiscal year. 

4 ‘‘(2) CONTENTS.—Each report submitted under 

5 paragraph (1) shall include— 

6 ‘‘(A) full and substantive analysis of the 

7 objectives of the Office of the Ombudsman; 

8 ‘‘(B) statistical information regarding such 

9 objectives; 

10 ‘‘(C) a description of each detention facil11 ity found to be in noncompliance with the de12 tention standards of the Department of Home13 land Security or other applicable regulations; 

14 ‘‘(D) a description of the actions taken by 

15 the Department of Homeland Security to rem16 edy any findings of noncompliance or other 

17 identified problems; 

18 ‘‘(E) information regarding whether the 

19 actions described in subparagraph (D) resulted 

20 in compliance with detention standards; 

21 ‘‘(F) a summary of the most pervasive and 

22 serious problems encountered by individuals 

23 subject to the enforcement operations of the 

24 Department of Homeland Security, including a 

25 description of the nature of such problems; and 


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1 ‘‘(G) such other information as the Om2 budsman may consider advisable.’’. 

3 (b) AMENDMENT.—The table of contents in section 

4 1(b) of the Homeland Security Act of 2002 (6 U.S.C. 101 

5 et seq.) is amended by inserting after the item relating 

6 to section 446 the following: 

‘‘Sec. 447. Immigration and Customs Enforcement Ombudsman.’’. 

7 SEC. 186. ELIMINATING ARBITRARY BAR TO ASYLUM. 

8 Section 208(a)(2) (8. U.S.C. 1158(a)(2)) is amend9 ed— 

10 (1) by striking subparagraph (B); 

11 (2) in subparagraph (C), by striking ‘‘(D)’’ and 

12 inserting ‘‘(C)’’; 

13 (3) in subparagraph (D), by striking ‘‘subpara14 graphs (B) and (C),’’ and inserting ‘‘subparagraph 

15 (B),’’; and 

16 (4) by redesignating subparagraphs (C) and 

17 (D) as subparagraphs (B) and (C), respectively. 

18 SEC. 187. RESTORATION OF JUDICIAL REVIEW. 

19 Section 242 (8 U.S.C. 1252) is amended— 

20 (1) by striking subsection (a)(2) (matters not 

21 subject to judicial review); 

22 (2) in subsection (b)(1), by striking ‘‘30 days’’ 

23 and inserting ‘‘60 days’’; 

24 (3) in subsection (b)(3)(B), by striking ‘‘does 

25 not’’ and inserting ‘‘shall’’; 


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1 (4) in subsection (b)(3)(C), by striking ‘‘shall’’ 

2 and inserting ‘‘may’’; 

3 (5) in subsection (b)(4)(B), by striking ‘‘any 

4 reasonable adjudicator would be compelled to con5 clude to the contrary’’ and inserting ‘‘the findings 

6 are not supported by substantial evidence’’; 

7 (6) in subsection (b)(8)(C), by inserting ‘‘unless 

8 a stay is automatically granted by any provision of 

9 law or any court of competent jurisdiction’’ after ‘‘to 

10 defer removal of the alien’’; 

11 (7) in subsection (b)(9), by striking ‘‘Except as 

12 otherwise provided in this section, no court shall 

13 have jurisdiction, by habeas corpus under section 

14 2241 of title 28 or any other habeas corpus provi15 sion, by section 1361 or 1651 of such title, or by 

16 any other provision of law (statutory or nonstatu17 tory), to review such an order or such questions of 

18 law or fact.’’; 

19 (8) by striking subsection (e)(1)(B); 

20 (9) in subsection (e)(2)(B) by inserting ‘‘law21 fully’’ after ‘‘was’’ and before ‘‘ordered’’; 

22 (10) by striking subsection (e)(3); 

23 (11) by redesignating subsection (e)(4) as sub24 section (e)(3); 


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1 (12) by redesignating subsection (e)(5) as sub2 section (e)(4); 

3 (13) by striking subsection (f); 

4 (14) by redesignating subsection (g) as sub5 section (f); and 

6 (15) in subsection (g) (as so redesignated), by 

7 striking ‘‘and notwithstanding any other provision of 

8 law (statutory or nonstatutory), including section 

9 2241 of title 28, or any other habeas corpus provi10 sion, and sections 1361 and 1651 of such title,’’. 

11 TITLE II—EMPLOYMENT 

12 VERIFICATION 

13 SEC. 201. EMPLOYMENT VERIFICATION. 

14 (a) IN GENERAL.—Section 274A (8 U.S.C. 1324a) 

15 is amended to read as follows: 

16 ‘‘SEC. 274A. EMPLOYMENT VERIFICATION. 

17 ‘‘(a) MAKING EMPLOYMENT OF UNAUTHORIZED

18 ALIENS UNLAWFUL.— 

19 ‘‘(1) IN GENERAL.—It is unlawful for an em20 ployer— 

21 ‘‘(A) to hire, recruit, or refer for a fee an 

22 alien for employment in the United States 

23 knowing or with reckless disregard that the 

24 alien is an unauthorized alien with respect to 

25 such employment; or 


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1 ‘‘(B) to hire in the United States an indi2 vidual unless such employer meets the require3 ments of subsections (b) and (c). 

4 ‘‘(2) CONTINUING EMPLOYMENT.—It is unlaw5 ful for an employer, after lawfully hiring an alien for 

6 employment, to continue to employ the alien in the 

7 United States knowing that the alien is (or has be8 come) an unauthorized alien with respect to such 

9 employment. 

10 ‘‘(3) USE OF LABOR THROUGH CONTRACT.—An 

11 employer who uses a contract, subcontract, or ex12 change entered into, renegotiated, or extended after 

13 the date of the enactment of this Act to obtain the 

14 labor of an alien in the United States knowing or 

15 with reckless disregard that the alien is an unau16 thorized alien with respect to performing such labor, 

17 shall be considered to have hired the alien for em18 ployment in the United States in violation of para19 graph (1)(A). 

20 ‘‘(4) TREATMENT OF DOCUMENTATION FOR

21 CERTAIN EMPLOYEES.— 

22 ‘‘(A) IN GENERAL.—For purposes of this 

23 section, if— 

24 ‘‘(i) an individual is a member of a 

25 collective-bargaining unit and is employed, 


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1 under a collective bargaining agreement 

2 entered into between one or more employee 

3 organizations and an association of two or 

4 more employers, by an employer that is a 

5 member of such association; and 

6 ‘‘(ii) within the period specified in 

7 subparagraph (B), another employer that 

8 is a member of the association (or an 

9 agent of such association on behalf of the 

10 employer) has complied with the require11 ments of subsection (b) of this section with 

12 respect to the employment of the indi13 vidual, the subsequent employer shall be 

14 deemed to have complied with the require15 ments of subsection (b) of this section with 

16 respect to the hiring of the employee and 

17 shall not be liable for civil penalties de18 scribed in subsection (d)(4) of this section. 

19 ‘‘(B) PERIOD.—The period described in 

20 this subparagraph is 3 years, or, if less, the pe21 riod of time that the individual is authorized to 

22 be employed in the United States. 

23 ‘‘(C) LIABILITY.— 

24 ‘‘(i) IN GENERAL.—If any employer 

25 that is a member of an association hires 


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1 for employment in the United States an in2 dividual and relies upon the provisions of 

3 subparagraph (A) to comply with the re4 quirements of subsection (b) of this section 

5 and the individual is an alien not author6 ized to work in the United States, then for 

7 the purposes of paragraph (1)(A), subject 

8 to clause (ii), the employer shall be pre9 sumed to have known at the time of hiring 

10 or afterward that the individual was an 

11 alien not authorized to work in the United 

12 States. 

13 ‘‘(ii) REBUTTAL OF PRESUMPTION.— 

14 The presumption established by clause (i) 

15 may be rebutted by the employer only 

16 through the presentation of clear and con17 vincing evidence that the employer did not 

18 know (and could not reasonably have 

19 known) that the individual at the time of 

20 hiring or afterward was an alien not au21 thorized to work in the United States. 

22 ‘‘(iii) EXCEPTION.—Clause (i) shall 

23 not apply in any prosecution under sub24 section (e)(1) of this section. 


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1 ‘‘(5) ORDER OF INTERNAL REVIEW AND CER2 TIFICATION OF COMPLIANCE.— 

3 ‘‘(A) AUTHORITY TO REQUIRE CERTIFI4 CATION.—If the Secretary has reasonable cause 

5 to believe that an employer has failed to comply 

6 with this section, the Secretary is authorized, at 

7 any time, to require that the employer certify 

8 that the employer is in compliance with this 

9 section or has instituted a program to come 

10 into compliance with the section. 

11 ‘‘(B) CONTENT OF CERTIFICATION.—Not 

12 later than 60 days after the date an employer 

13 receives a request for a certification under sub14 paragraph (A) the employer shall certify under 

15 penalty of perjury that— 

16 ‘‘(i) the employer is in compliance 

17 with the requirements of subsections (b) 

18 and (c); or 

19 ‘‘(ii) that the employer has instituted 

20 a program to come into compliance with 

21 such requirements. 

22 ‘‘(C) EXTENSION.—The 60-day period re23 ferred to in subparagraph (B), may be extended 

24 by the Secretary for good cause, at the request 

25 of the employer. 


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1 ‘‘(D) PUBLICATION.—The Secretary is au2 thorized to publish in the Federal Register 

3 standards or methods for certification under 

4 subparagraph (A) and for specific record5 keeping practices with respect to such certifi6 cation, and procedures for the audit of any 

7 records related to such certification. 

8 ‘‘(6) DEFENSE.— 

9 ‘‘(A) IN GENERAL.—Subject to subpara10 graph (B), an employer that establishes that 

11 the employer has complied in good faith, not12 withstanding a technical or procedural failure, 

13 with the requirements of subsections (b) and (c) 

14 with respect to the hiring of an individual has 

15 established an affirmative defense that the em16 ployer has not violated paragraph (1)(B) with 

17 respect to such hiring. 

18 ‘‘(B) EXCEPTION.—Until the date that an 

19 employer is required to participate in the Elec20 tronic Employment Verification System under 

21 subsection (c), the employer may establish an 

22 affirmative defense under subparagraph (A) 

23 without a showing of compliance with sub24 section (c). 


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1 ‘‘(7) NO AUTHORIZATION OF NATIONAL IDENTI2 FICATION CARDS.—Nothing in this title may be con3 strued to authorize, directly or indirectly, the 

4 issuance, use, or establishment of a national identi5 fication card or a national identification system. 

6 ‘‘(b) DOCUMENT VERIFICATION REQUIREMENTS.— 

7 An employer hiring an individual for employment in the 

8 United States shall verify that the individual is eligible for 

9 such employment by meeting the following requirements: 

10 ‘‘(1) ATTESTATION BY EMPLOYER.— 

11 ‘‘(A) REQUIREMENTS.— 

12 ‘‘(i) IN GENERAL.—The employer 

13 shall attest, under penalty of perjury and 

14 on a form prescribed by the Secretary, that 

15 the employer has verified the identity and 

16 eligibility for employment of the individual 

17 by examining an original, unexpired docu18 ment or documents described in section 

19 274a.2(b)(1)(v) of title 8, Code of Federal 

20 Regulation as evidence of the individual’s 

21 employment authorization and identity. 

22 ‘‘(ii) SIGNATURE REQUIREMENTS.— 

23 An attestation required by clause (i) may 

24 be manifested by a handwritten or elec25 tronic signature. 


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1 ‘‘(iii) STANDARDS FOR EXAMINA2 TION.—An employer has complied with the 

3 requirement of this paragraph with respect 

4 to examination of a document if the docu5 ment examined reasonably appears on its 

6 face to be genuine and relates to the indi7 vidual whose identity and eligibility for em8 ployment in the United States is being 

9 verified. Nothing in this paragraph may be 

10 construed as requiring the employer to so11 licit the production of any other document 

12 or as requiring the individual to produce 

13 such other document. 

14 ‘‘(B) AUTHORITY TO PROHIBIT USE OF

15 CERTAIN DOCUMENTS.— 

16 ‘‘(i) AUTHORITY.—If the Secretary 

17 finds that a document or class of docu18 ments described in subparagraph (A)(i) is 

19 not reliable to establish identity or eligi20 bility for employment (as the case may be) 

21 or is being used fraudulently to an unac22 ceptable degree, the Secretary is author23 ized to prohibit, or impose conditions on, 

24 the use of such document or class of docu25 ments for purposes of this subsection. 


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1 ‘‘(ii) REQUIREMENT FOR PUBLICA2 TION.—The Secretary shall publish notice 

3 of any findings under clause (i) in the Fed4 eral Register. 

5 ‘‘(2) ATTESTATION OF INDIVIDUAL.— 

6 ‘‘(A) IN GENERAL.—The individual shall 

7 attest, under penalty of perjury on a form pre8 scribed by the Secretary, that the individual 

9 is— 

10 ‘‘(i) a national of the United States; 

11 ‘‘(ii) an alien lawfully admitted for 

12 permanent residence; or 

13 ‘‘(iii) an alien who is authorized under 

14 this Act or by the Secretary to be em15 ployed in the United States. 

16 ‘‘(B) SIGNATURE FOR EXAMINATION.—An 

17 attestation required by subparagraph (A) may 

18 be manifested by a handwritten or electronic 

19 signature. 

20 ‘‘(C) PENALTIES.—An individual who 

21 falsely attests that he or she is eligible for em22 ployment in the United States shall be subject 

23 to the terms and penalties regarding document 

24 fraud described in section 274C of the Immi25 gration and Nationality Act. 


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1 ‘‘(D) SCHEDULE.— 

2 ‘‘(i) REPLACEMENT DOCUMENTS.—An 

3 employer shall accept a receipt for the ap4 plication for a replacement document or a 

5 document described in subparagraph (B) 

6 of subsection (b)(1) in lieu of the required 

7 document in order to comply with any re8 quirement to examine documentation im9 posed by this section, in the following cir10 cumstances: 

11 ‘‘(I) The individual is unable to 

12 provide the required document within 

13 the time specified in this section be14 cause the document was lost, stolen, 

15 or damaged. 

16 ‘‘(II) The individual presents a 

17 receipt for the application for the doc18 ument within the time specified in 

19 this section. 

20 ‘‘(III) The individual presents 

21 the document within 90 days of the 

22 hire. If the actual document or re23 placement document is to be issued by 

24 the United States Citizenship and Im25 migration Services and the application 


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1 is still under review 60 days after re2 ceipt of the application, United States 

3 Citizenship and Immigration Services 

4 shall, not later than the 60th day 

5 after receipt of the application, issue a 

6 letter for the applicant to take to the 

7 employer which shall automatically 

8 grant the individual an additional 90 

9 days from the original deadline in 

10 subsection (b)(6)(A)(i)(II) to present 

11 the document or replacement docu12 ment; and 

13 ‘‘(ii) PROHIBITION ON ACCEPTANCE

14 OF A RECEIPT FOR SHORT-TERM EMPLOY15 MENT.—An employer may not accept a re16 ceipt in lieu of the required document if 

17 the individual is hired for a duration of 

18 less than 10 working days. 

19 ‘‘(3) DOCUMENT RETENTION AND RECORD20 KEEPING REQUIREMENTS.—The System described in 

21 subsection (c) shall include an auto-save feature al22 lowing the employer to retain an electronic version 

23 of an attestation submitted under paragraph (1) or 

24 (2) for an individual and a record of any action 

25 taken, and copies of any correspondence written or 


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1 received, with respect to the verification of an indi2 vidual’s identity or eligibility for employment in the 

3 United States, including records received through 

4 the Electronic Employment Verification System 

5 under subsection (c). The employer shall retain such 

6 records, either in electronic, paper, microfiche, or 

7 microfilm form, and make such attestations available 

8 for inspection by an officer of the Department of 

9 Homeland Security, any other person designated by 

10 the Secretary, the Special Counsel for Immigration11 Related Unfair Employment Practices of the De12 partment of Justice, or the Secretary of Labor— 

13 ‘‘(A) during a period beginning on the date 

14 of the hiring of the individual and ending on 

15 the date that is the later of— 

16 ‘‘(i) 3 years after the date of such hir17 ing; or 

18 ‘‘(ii) 1 year after the date the individ19 ual’s employment is terminated; or 

20 ‘‘(B) during a shorter period determined 

21 by the Secretary, if the Secretary reduces the 

22 period described in subparagraph (A) for the 

23 employer or a class of employers that includes 

24 the employer. 


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1 ‘‘(C) USE OF RETAINED DOCUMENTS.—An 

2 employer shall use copies retained under clause 

3 (i) or (ii) of subparagraph (A) only for the pur4 poses of complying with the requirements of 

5 this subsection, except as otherwise permitted 

6 under law. 

7 ‘‘(4) PENALTIES.—An employer that fails to 

8 comply with the requirement of this subsection shall 

9 be subject to the penalties described in subsection 

10 (d)(4)(B). 

11 ‘‘(c) ELECTRONIC EMPLOYMENT VERIFICATION SYS12 TEM.— 

13 ‘‘(1) REQUIREMENT FOR SYSTEM.—The Sec14 retary, in cooperation with the Commissioner of So15 cial Security, shall implement an Electronic Employ16 ment Verification System (referred to in this sub17 section as the ‘System’) as described in this sub18 section. 

19 ‘‘(2) TECHNOLOGY STANDARD TO VERIFY EM20 PLOYMENT ELIGIBILITY.— 

21 ‘‘(A) IN GENERAL.—The Secretary, based 

22 upon recommendations from the Director of the 

23 National Institute of Standards and Tech24 nology, shall not later than 180 days after the 

25 date of the enactment of the this Act develop 


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1 and certify a technology standard as described 

2 in this subparagraph. The Secretary shall have 

3 discretion to extend the 180-day period if the 

4 Secretary determines that such extension will 

5 result in substantial improvement of the Sys6 tem. 

7 ‘‘(B) INTEGRATED.—Notwithstanding any 

8 other provision of Federal law, the technology 

9 standard developed shall be the technological 

10 basis for a secure cross-agency, cross-platform 

11 electronic system that is a cost-effective, effi12 cient, fully integrated means to share immigra13 tion and Social Security information necessary 

14 to confirm the employment eligibility of all indi15 viduals seeking employment while protecting in16 dividual privacy. 

17 ‘‘(C) REPORT.—Not later than 18 months 

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

19 Secretary and the Director of the National In20 stitute of Standards and Technology shall joint21 ly submit to Congress a report describing the 

22 development, implementation, efficacy, and pri23 vacy implications of the technology standard 

24 and the System. 


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1 ‘‘(3) IDENTITY AND EMPLOYMENT ELIGIBILITY

2 VERIFICATION.—An employer shall verify the iden3 tity and eligibility for employment of an individual 

4 hired by the employer through the System as fol5 lows: 

6 ‘‘(A) INITIAL INQUIRY.—The employer 

7 shall submit through the Internet or other elec8 tronic media, or over a telephone line an inquiry 

9 through the System to seek confirmation of the 

10 individual’s identity and eligibility for employ11 ment in the United States not earlier than on 

12 the first day such employment actually com13 mences and not later than 5 working days after 

14 the date such employment actually commences. 

15 ‘‘(i) IN GENERAL.—The Secretary, 

16 through the System, shall confirm or ten17 tatively nonconfirm an individual’s identity 

18 and eligibility for employment in the 

19 United States not later than 1 working day 

20 after an employer submits an inquiry re21 garding the employee. 

22 ‘‘(ii) MANUAL VERIFICATION.—If the 

23 System provides a tentative nonconfirma24 tion with respect to an individual under 

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1 sioner shall complete a secondary manual 

2 verification not later than 6 working days 

3 after such tentative nonconfirmation is 

4 made. 

5 ‘‘(iii) DETERMINATION.—Not later 

6 than 10 days after the employer submits 

7 an inquiry under subparagraph (A) the 

8 Secretary, through the System, shall pro9 vide to the employer the results of the 

10 verification required by clause (i) and (ii). 

11 Such results shall be a determination 

12 that— 

13 ‘‘(I) confirms the individual’s 

14 identity and eligibility for employment 

15 in the United States; or 

16 ‘‘(II) the System is tentatively 

17 unable to confirm the individual’s 

18 identity or eligibility for employment 

19 (referred to in this section as a ‘ten20 tative nonconfirmation’). 

21 ‘‘(B) SUBMISSION OF INFORMATION.—An 

22 individual who is the subject of a tentative non23 confirmation may submit to the Secretary or 

24 Commissioner, through the System, information 

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1 bility for employment or to otherwise contest 

2 such tentative nonconfirmation not later than 

3 15 working days after the individual receives 

4 notice of such tentative nonconfirmation. 

5 ‘‘(C) EXTENSION.—The 15-day period re6 ferred to in subparagraph (B) may be extended 

7 by the Secretary for good cause at the request 

8 of the individual. 

9 ‘‘(D) PROHIBITION ON TERMINATION FOR

10 TENTATIVE NONCONFIRMATION.—An employer 

11 may not terminate the employment of an indi12 vidual based on tentative nonconfirmation. 

13 ‘‘(E) FINAL DETERMINATION.—Not later 

14 than 10 days after the individual contests such 

15 tentative nonconfirmation or, in the case of an 

16 individual who fails to contest such tentative 

17 nonconfirmation, not later than 25 days after 

18 the date of the initial tentative nonconfirma19 tion, the Secretary shall provide, through the 

20 system to the employer the results of the 

21 verification. Such results shall be a determina22 tion that— 

23 ‘‘(i) confirms the individual’s identity 

24 and eligibility for employment in the 

25 United States; or 


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1 ‘‘(ii) the System is unable to confirm 

2 the individual’s identity or eligibility for 

3 employment (referred to in this section as 

4 a ‘final nonconfirmation’). 

5 ‘‘(F) ADMINISTRATIVE AND JUDICIAL RE6 VIEW.—If the Secretary, through the System, 

7 provides a final nonconfirmation with respect to 

8 an individual, the individual shall have the right 

9 to administrative review under paragraph (21) 

10 and judicial review under paragraph (22) of 

11 such final nonconfirmation. 

12 ‘‘(G) TERMINATION OF EMPLOYEE.—If an 

13 employer receives a final nonconfirmation with 

14 respect to an individual under paragraph (E), 

15 the employer shall terminate the employment of 

16 such individual after the conclusion of the 30- 

17 day period for the individual to file an adminis18 trative appeal as described in paragraph (21), 

19 unless the Secretary or the Commissioner stays 

20 the final nonconfirmation notice pending the 

21 resolution of the administrative appeal or judi22 cial review. 

23 ‘‘(H) RIGHT TO REVIEW AND CORRECT

24 SYSTEM INFORMATION.— 


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1 ‘‘(i) The Secretary, in consultation 

2 with the Commissioner of Social Security, 

3 shall establish procedures to permit an in4 dividual to verify the individual’s eligibility 

5 for employment in the United States prior 

6 to obtaining or changing employment, to 

7 view the individual’s own records in the 

8 System in order to ensure the accuracy of 

9 such records, and to correct or update the 

10 information used by the System regarding 

11 the individual. To the greatest practicable 

12 extent such procedures shall allow elec13 tronic submission of such information. 

14 ‘‘(ii) The Secretary, in consultation 

15 with the Commissioner of Social Security, 

16 shall establish procedures for an Enhanced 

17 Verification System under paragraph (25) 

18 through which an individual who has 

19 viewed the individual’s own record may 

20 electronically block he use of the individ21 ual’s social security number and may reg22 ister a phone number or e-mail address to 

23 be contacted upon removal of the block 

24 under the System and remove such block 

25 in order to prevent the fraudulent or other 


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1 misuse of a social security account num2 ber, prevent employer misuse of the sys3 tem, protect privacy, and limit erroneous 

4 non-confirmations during employment 

5 verification. 

6 ‘‘(H) REVERIFICATION.— 

7 ‘‘(i) IN GENERAL.—It is an unfair im8 migration-related employment practice 

9 under section 274B for an employer to 

10 reverify an individual’s identity and em11 ployment eligibility unless— 

12 ‘‘(I) the individual’s work author13 ization expires as described in section 

14 274a.2(b)(1)(vii) of title 8, Code of 

15 Federal Regulation or a subsequent 

16 similar regulation, in which case— 

17 ‘‘(aa) not later than 30 days 

18 prior to the expiration of the in19 dividual’s work authorization, the 

20 Secretary shall notify the em21 ployer of such expiration and of 

22 the employer’s need to reverify 

23 the individual’s employment eligi24 bility; and 


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1 ‘‘(bb) the individual may 

2 present, and the employer shall 

3 accept, a receipt for the applica4 tion for a replacement document, 

5 extension of work authorization, 

6 or a document described in 

7 clause (i) through (v) of subpara8 graph (B) of subsection (b)(1) in 

9 lieu of the required document by 

10 the expiration date in order to 

11 comply with any requirement to 

12 examine documentation imposed 

13 by this section, and the individual 

14 shall present the required docu15 ment within 90 days from the 

16 date the employment authoriza17 tion expires. If the actual docu18 ment or replacement document is 

19 to be issued by United States 

20 Citizenship and Immigration 

21 Services and the application is 

22 still under review 60 days after 

23 the employment authorization ex24 piration date, United States Citi25 zenship and Immigration Services 


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1 shall by the 60th day after the 

2 expiration date of the employ3 ment authorization, issue a letter 

4 for the applicant to take to the 

5 employer which shall automati6 cally grant the individual an ad7 ditional 90 days to present the 

8 document or replacement docu9 ment; and 

10 ‘‘(II) the employer has actual or 

11 constructive knowledge that the indi12 vidual is not authorized to work in the 

13 United States; or 

14 ‘‘(III) unless otherwise required 

15 by law. 

16 ‘‘(ii) CONTINUING EMPLOYMENT.—An 

17 employer may not verify an individual’s 

18 employment eligibility if the individual is 

19 continuing in his or her employment as de20 scribed in section 274a.2(b)(1)(viii) of title 

21 8, Code of Federal Regulation or any sub22 sequent similar regulation. 

23 ‘‘(4) DESIGN AND OPERATION OF SYSTEM.— 

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1 sioner of Social Security, shall design and operate 

2 the System— 

3 ‘‘(A) to maximize reliability and ease of 

4 use by employers and employees in a manner 

5 that protects and maintains the privacy and se6 curity of the information maintained in the Sys7 tem; 

8 ‘‘(B) to permit an employer to submit an 

9 inquiry to the System through the Internet or 

10 other electronic media or over a telephone line; 

11 ‘‘(C) to respond to each inquiry made by 

12 an employer; 

13 ‘‘(D) to maintain a record of each such in14 quiry and each such response; 

15 ‘‘(E) to track and record any occurrence 

16 when the System is unable to receive such an 

17 inquiry; 

18 ‘‘(F) to include appropriate administrative, 

19 technical, and physical safeguards to prevent 

20 unauthorized disclosure of personal information 

21 during use, transmission, storage, or disposal of 

22 that information, including the use of 

23 encryption, carrying out periodic testing of the 

24 System to detect, prevent, and respond to 


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1 vulnerabilities or other failures, and utilizing 

2 periodic security updates; 

3 ‘‘(G) to allow for monitoring of the use of 

4 the System and provide an audit capability; 

5 ‘‘(H) to have reasonable safeguards, devel6 oped in consultation with the Attorney General, 

7 to prevent employers from engaging in unlawful 

8 discriminatory practices; 

9 ‘‘(I) to permit an employer to submit the 

10 attestations required by subsection (b); and 

11 ‘‘(J) to permit an employer to utilize any 

12 technology that is consistent with this section 

13 and with any regulation or guidance from the 

14 Secretary to streamline the procedures to com15 ply with the attestation and employment eligi16 bility verification requirements contained in this 

17 section. 

18 ‘‘(5) LIMITATION ON DATA ELEMENTS

19 STORED.— 

20 ‘‘(A) The System and any databases cre21 ated by the Commissioner of Social Security or 

22 the Secretary for use in the System shall store 

23 only the minimum data about each individual 

24 for whom an inquiry was made through the 

25 System to facilitate the successful operation of 


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1 the System, and in no case shall the data stored 

2 be other than— 

3 ‘‘(i) the individual’s full legal name; 

4 ‘‘(ii) the individual’s date of birth; 

5 ‘‘(iii) the individual’s social security 

6 account number or employment authoriza7 tion status identification number; 

8 ‘‘(iv) the address of the employer 

9 making the inquiry and the dates of any 

10 prior inquiries concerning the identity and 

11 authorization of the individual by the em12 ployer or any other employer and the ad13 dress of such employer; 

14 ‘‘(v) a record of each prior determina15 tion regarding the individual’s identity and 

16 employment eligibility issued through the 

17 System; and 

18 ‘‘(vi) in the case of the individual who 

19 successfully contested or appealed a ten20 tative nonconfirmation or final noncon21 firmation, explanatory information con22 cerning the successful resolution of any er23 roneous data or confusion regarding the 

24 identity or eligibility for employment of the 


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1 individual, including the source of that 

2 error. 

3 ‘‘(B) Information provided pursuant to 

4 subsection (c)(5)(A)(i)–(v) shall be deleted from 

5 the System one year after the date of entry un6 less the Secretary shall determine it is relevant 

7 to an ongoing determination or appeal, a review 

8 of errors or compensation for errors, or an on9 going investigation of fraud or misuse of the 

10 system. The Secretary shall not retain any data 

11 pursuant to this subsection after the completion 

12 of an appeal or investigation except as de13 scribed in subsection (c)(5)(A)(vi). 

14 ‘‘(6) RESPONSIBILITIES OF THE COMMISSIONER

15 OF SOCIAL SECURITY.—The Commissioner of Social 

16 Security shall establish a reliable, secure method to 

17 provide through the System, within the time periods 

18 required by subparagraphs (B) and (C) of para19 graph (2)— 

20 ‘‘(A) a confirmation of whether or not the 

21 individual is a United States citizen; 

22 ‘‘(B) a determination of whether the name 

23 and social security account number provided, 

24 with respect to an individual, in an inquiry by 

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1 tained by the Commissioner in order to confirm 

2 the validity of the information provided; 

3 ‘‘(C) a determination of whether such so4 cial security account number was issued to the 

5 individual; and 

6 ‘‘(D) a determination described in subpara7 graph (B) or (C) of paragraph (2), in a manner 

8 that ensures that other information maintained 

9 by the Commissioner is not disclosed or re10 leased to employers through the System. 

11 ‘‘(7) RESPONSIBILITIES OF THE SECRETARY.— 

12 The Secretary shall establish a reliable, secure meth13 od to provide, through the System, within the time 

14 periods required by subparagraphs (B) and (C) of 

15 paragraph (2)— 

16 ‘‘(A) a determination of whether the name 

17 and alien identification or authorization number 

18 provided, with respect to an individual, in an in19 quiry by an employer match such information 

20 maintained by the Secretary in order to confirm 

21 the validity of the information provided; 

22 ‘‘(B) a determination of whether such 

23 number was issued to the individual; 


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1 ‘‘(C) a determination of whether the indi2 vidual is authorized to be employed in the 

3 United States; and 

4 ‘‘(D) any other related information that 

5 the Secretary determines is appropriate. 

6 ‘‘(8) PRIVACY IMPACT ASSESSMENT.—The 

7 Commissioner of Social Security and the Secretary 

8 shall each complete a privacy impact assessment as 

9 described in section 208 of the E-Government Act of 

10 2002 (Public Law 107–347; 44 U.S.C. 3501 note) 

11 with regard to the System. 

12 ‘‘(9) TRAINING.—Not later than 6 months be13 fore implementation of the EEVS, the Commissioner 

14 of Social Security and the Secretary shall institute 

15 a comprehensive program of outreach and training 

16 for employers regarding the operation of the 

17 verification system described in this section and in18 forming them of ongoing assistance resources for the 

19 implementation and use of such systems. 

20 ‘‘(10) PUBLIC EDUCATION.—Not later than 6 

21 months before implementation of the EEVS, the 

22 Commissioner of Social Security and the Secretary 

23 shall develop a public education campaign regarding 

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1 structional materials provided without cost to the 

2 public regarding how to use the EEVS. 

3 ‘‘(11) HOTLINE.—The Secretary shall establish 

4 a fully staffed 24-hour toll-free hotline that shall re5 ceive inquiries from individuals or employers con6 cerning determinations made by the System and 

7 shall identify for an individual, at the time of in8 quiry, the particular data that resulted in a deter9 mination that the System was unable to verify the 

10 individual’s identity or eligibility for employment. 

11 ‘‘(12) PARTICIPATION.— 

12 ‘‘(A) REQUIREMENTS FOR PARTICIPA13 TION.—Except as provided in subparagraphs 

14 (D) and (E), the Secretary shall require em15 ployers to participate in the System as follows: 

16 ‘‘(i) CRITICAL EMPLOYERS.—Not later 

17 than 6 months after the date of enactment 

18 of this Act, the Secretary shall require all 

19 agencies and departments of the United 

20 States (including the Armed Forces), a 

21 State government (including a State em22 ployment agency before making a referral), 

23 or any other employer if it employs individ24 uals working in a location that is a Fed25 eral, State, or local government building, a 


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1 military base, a nuclear energy site, a 

2 weapon site, or an airport, but only to the 

3 extent of such individuals, to participate in 

4 the System, with respect to all individuals 

5 hired after the date the Secretary requires 

6 such participation. 

7 ‘‘(ii) LARGE EMPLOYERS.—Not later 

8 than 1 year after the date of enactment of 

9 this Act the Secretary shall require an em10 ployer with 5,000 or more employees in the 

11 United States to participate in the System, 

12 with respect to all employees hired by the 

13 employer after the date the Secretary re14 quires such participation. 

15 ‘‘(iii) MIDSIZED EMPLOYERS.—Not 

16 later than 2 years after the date of enact17 ment of this Act the Secretary shall re18 quire an employer with less than 5,000 

19 employees and 1,000 or more employees in 

20 the United States to participate in the Sys21 tem, with respect to all employees hired by 

22 the employer after the date the Secretary 

23 requires such participation. 

24 ‘‘(iv) SMALL EMPLOYERS.—Not later 

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1 ment of the this Act, the Secretary shall 

2 require all employers with less than 1,000 

3 employees in the United States to partici4 pate in the System, with respect to all em5 ployees hired by the employer after the 

6 date the Secretary requires such participa7 tion. 

8 ‘‘(B) REQUIREMENT TO PUBLISH.—The 

9 Secretary shall publish in the Federal Register 

10 the requirements for participation in the Sys11 tem for employers described in clauses (i) 

12 through (iv) of subparagraph (A) prior to the 

13 effective date of such requirements. 

14 ‘‘(C) OTHER PARTICIPATION IN SYSTEM.— 

15 Notwithstanding subparagraph (A), the Sec16 retary has the authority to permit any employer 

17 that is not required to participate in the System 

18 under subparagraph (A) to participate in the 

19 System on a voluntary basis 

20 ‘‘(D) WAIVER.— 

21 ‘‘(i) AUTHORITY TO PROVIDE A WAIV22 ER.—The Secretary is authorized to waive 

23 or delay the participation requirements of 

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1 retary provides notice to Congress of such 

2 waiver prior to the date such waiver is 

3 granted. 

4 ‘‘(ii) REQUIREMENT TO PROVIDE A

5 WAIVER.—The Secretary shall waive or 

6 delay the participation requirements of 

7 subparagraph (A) with respect to any em8 ployer or class of employers until the date 

9 that the Comptroller General of the United 

10 States submits the initial certification de11 scribed in paragraph (19)(E) and shall 

12 waive or delay such participation during a 

13 year if the Comptroller General fails to 

14 submit a certification of paragraph (19)(E) 

15 for such year. 

16 ‘‘(E) CONSEQUENCE OF FAILURE TO PAR17 TICIPATE.—If an employer is required to par18 ticipate in the System and fails to comply with 

19 the requirements of the System with respect to 

20 an individual— 

21 ‘‘(i) such failure shall be treated as a 

22 violation of subsection (a)(1)(B); and 

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1 tion may not apply to a prosecution under 

2 subsection (e)(1). 

3 ‘‘(13) EMPLOYER REQUIREMENTS.— 

4 ‘‘(A) IN GENERAL.—An employer that par5 ticipates in the System, with respect to the hir6 ing of an individual for employment in the 

7 United States, shall— 

8 ‘‘(i) notify the individual of the use of 

9 the System and that the System may be 

10 used for immigration enforcement pur11 poses; 

12 ‘‘(ii) obtain from the individual the 

13 documents required by subsection (b)(1) 

14 and record on the form designated by the 

15 Secretary— 

16 ‘‘(I) the individual’s social secu17 rity account number; and 

18 ‘‘(II) in the case of an individual 

19 who does not attest that the indi20 vidual is a national of the United 

21 States under subsection (b)(2), such 

22 identification or authorization number 

23 that the Secretary shall require; 

24 ‘‘(iii) retain such form in electronic, 

25 paper, microfilm, or microfiche form and 


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1 make such form available for inspection for 

2 the periods and in the manner described in 

3 subsection (b)(3); and 

4 ‘‘(iv) safeguard any information col5 lected for purposes of the System and pro6 tect any means of access to such informa7 tion to ensure that such information is not 

8 used for any purpose other than to deter9 mine the identity and employment eligi10 bility of the individual and to protect the 

11 confidentiality of such information, includ12 ing ensuring that such information is not 

13 provided to any person other than a person 

14 who carries out the employer’s responsibil15 ities under this subsection. Failure to safe16 guard such information shall be a violation 

17 of subsection (c)(14). 

18 ‘‘(B) CONFIRMATION, TENTATIVE NONCON19 FIRMATION, OR FINAL NONCONFIRMATION.— 

20 ‘‘(i) CONFIRMATION.—If an employer 

21 receives a determination through the Sys22 tem under paragraph (3) for an individual, 

23 the employer shall retain either an elec24 tronic, paper, or microfiche form record of 


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1 such confirmation for the period required 

2 by subsection (b)(4)(A). 

3 ‘‘(ii) TENTATIVE NONCONFIRMATION

4 AND VERIFICATION.— 

5 ‘‘(I) NONCONFIRMATION.—If an 

6 employer receives a tentative noncon7 firmation with respect to an indi8 vidual, the employer shall retain either 

9 an electronic or paper record of such 

10 nonconfirmation for the period re11 quired by subsection (b)(4)(A) and in12 form such individual not later than 3 

13 working days after the issuance of 

14 such notice in the manner prescribed 

15 by the Secretary that includes infor16 mation regarding the individual’s 

17 right to submit information to contest 

18 the tentative nonconfirmation and the 

19 address and telephone numbers estab20 lished by the Commissioner and the 

21 Secretary to obtain information on 

22 how to submit such information. The 

23 individual must acknowledge in writ24 ing whether or not the individual 

25 chooses to contest or not contest the 


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1 tentative nonconfirmation. The em2 ployer shall submit to the System the 

3 individual’s action. 

4 ‘‘(II) NO CONTEST.—If the indi5 vidual does not contest the tentative 

6 nonconfirmation notice within 15 

7 working days of receiving notice from 

8 the individual’s employer, the notice 

9 shall become final and the employer 

10 shall retain either an electronic or 

11 paper record of such final noncon12 firmation for the period required by 

13 subsection (b)(4)(A). An individual’s 

14 failure to contest a tentative noncon15 firmation may not be the basis for de16 termining that the employer acted in 

17 a knowing (as defined in section 

18 274a.1 of title 8, Code of Federal 

19 Regulations, or any corresponding 

20 similar regulation) manner. 

21 ‘‘(III) CONTEST.—If the indi22 vidual contests the tentative noncon23 firmation notice under subclause (I), 

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1 tice to the Secretary or Commissioner 

2 of Social Security within 15 working 

3 days of receiving notice from the indi4 vidual’s employer and shall utilize the 

5 verification process developed under 

6 paragraph (3)(B). 

7 ‘‘(IV) EFFECTIVE PERIOD OF

8 TENTATIVE NONCONFIRMATION.—A 

9 tentative nonconfirmation notice shall 

10 remain in effect until such notice be11 comes final under clause (II) or a 

12 final confirmation notice or final non13 confirmation notice is issued by the 

14 System. 

15 ‘‘(V) PROHIBITION.—An em16 ployer may not terminate the employ17 ment of an individual based on a ten18 tative nonconfirmation notice. Noth19 ing in this clause shall apply to termi20 nation of employment for any legiti21 mate reason other than because of 

22 such a tentative nonconfirmation. 

23 ‘‘(iii) FINAL NONCONFIRMATION.— 

24 ‘‘(I) If an employer has received 

25 a final nonconfirmation with respect 


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1 to an individual, the employer shall 

2 terminate the employment of the indi3 vidual after the expiration of the time 

4 period prescribed in paragraph (21) 

5 for the individual to file an adminis6 trative appeal of a final nonconfirma7 tion notice, unless the Secretary or 

8 the Commissioner stays the final non9 confirmation notice pending the reso10 lution of the administrative appeal, or 

11 a stay is issued pending judicial re12 view. 

13 ‘‘(II) CONTINUED EMPLOYMENT

14 AFTER FINAL NONCONFIRMATION.—If 

15 the employer continues to employ (or 

16 to recruit or refer) an individual after 

17 the expiration of the period for the in18 dividual to file an administrative ap19 peal of a final nonconfirmation notice 

20 under paragraph (21) (unless the Sec21 retary or the Commissioner stayed the 

22 final nonconfirmation notice pending 

23 the resolution of the administrative 

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1 tion is created that the employer has 

2 violated subsections paragraphs 

3 (1)(A) and (2) of subsection (a). Such 

4 presumption may not apply to a pros5 ecution under subsection (e)(1). 

6 ‘‘(14) PROHIBITION OF UNLAWFUL ACCESSING

7 AND OBTAINING OF INFORMATION.— 

8 ‘‘(A) IN GENERAL.—It shall be unlawful 

9 for any individual other than an employee of 

10 the Social Security Administration or the De11 partment of Homeland Security specifically 

12 charged with maintaining the System to inten13 tionally and knowingly— 

14 ‘‘(i) access the System or the data15 bases utilized to verify identity or employ16 ment eligibility for the System for any pur17 pose other than verifying identity or em18 ployment eligibility or modifying the Sys19 tem pursuant to law or regulation; or 

20 ‘‘(ii) obtain the information con21 cerning an individual stored in the System 

22 or the databases utilized to verify identity 

23 or employment eligibility for the System 

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1 fying the System pursuant to law or regu2 lation. 

3 ‘‘(B) PENALTIES.— 

4 ‘‘(i) UNLAWFUL ACCESS.—Any indi5 vidual who unlawfully accesses the System 

6 or the databases as described in subpara7 graph (A)(i) shall be fined no more than 

8 $1,000 per individual or sentenced to no 

9 more than 6 months imprisonment or both 

10 per individual whose file was compromised. 

11 ‘‘(ii) UNLAWFUL USE.—Any indi12 vidual who unlawfully obtains information 

13 stored in the System in the database uti14 lized to verify identity or employment eligi15 bility for the System and uses the informa16 tion to commit identity theft for financial 

17 gain or to evade security or to assist an18 other in gaining financially or evading se19 curity, shall be fined no more than 

20 $10,000 per individual or sentenced to no 

21 more than 1 year of imprisonment or both 

22 per individual whose information was ob23 tained and misappropriated. 

24 ‘‘(15) PROTECTION FROM LIABILITY.—No em25 ployer that participates in the System and complies 


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1 in good faith with the attestation in subsection 

2 (b)(1) and the employer requirements of this section 

3 shall be liable under any law for any employment-re4 lated action taken with respect to an individual in 

5 good faith reliance on information provided by the 

6 System regarding that individual. 

7 ‘‘(16) LIMITATION ON USE OF THE SYSTEM.— 

8 Notwithstanding any other provision of law, nothing 

9 in this subsection shall be construed to permit or 

10 allow any department, bureau, or other agency of 

11 the United States to utilize any information, data12 base, or other records used in the System for any 

13 purpose other than as provided for under this sub14 section. 

15 ‘‘(17) ACCESS TO DATABASE.—No officer or 

16 employee of any agency or department of the United 

17 States, other than such an officer or employee who 

18 is responsible for the verification of employment eli19 gibility or for the evaluation of an employment eligi20 bility verification program at the Social Security Ad21 ministration, the Department of Homeland Security, 

22 and the Department of Labor, may have access to 

23 any information, database, or other records utilized 

24 by the System. 


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1 ‘‘(18) MODIFICATION AUTHORITY.—The Sec2 retary, after notice is submitted to Congress and 

3 provided to the public in the Federal Register, is au4 thorized to modify the requirements of this sub5 section, including requirements with respect to com6 pletion of forms, method of storage, attestations, 

7 copying of documents, signatures, methods of trans8 mitting information, and other operational and tech9 nical aspects to improve the efficiency, accuracy, and 

10 security of the System. 

11 ‘‘(19) ANNUAL STUDY AND REPORT.— 

12 ‘‘(A) REQUIREMENT FOR STUDY.—The 

13 Comptroller General of the United States shall 

14 conduct an annual study of the System as de15 scribed in this paragraph. 

16 ‘‘(B) PURPOSE OF THE STUDY.—The 

17 Comptroller General shall, for each year, under18 take a study to determine whether the System 

19 meets the following requirements: 

20 ‘‘(i) DEMONSTRATED ACCURACY OF

21 THE DATABASES.—New information and 

22 information changes submitted by an indi23 vidual to the System is updated in all of 

24 the relevant databases not later than 3 


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1 working days after submission in at least 

2 99 percent of all cases. 

3 ‘‘(ii) LOW ERROR RATES AND DELAYS

4 IN VERIFICATION.— 

5 ‘‘(I) RATES OF INCORRECT FINAL

6 NONCONFIRMATION NOTICES.—That, 

7 during a year, not more than .5 per8 cent of all final nonconfirmations pro9 vided through the System during such 

10 year are incorrect. 

11 ‘‘(II) RATES OF INCORRECT TEN12 TATIVE NONCONFIRMATION NO13 TICES.— 

14 ‘‘(aa) That, during a year, 

15 not more than 1 percent of na16 tive-born United States citizens 

17 whose identity and work eligi18 bility are submitted to the system 

19 is the subject of a tentative non20 confirmation. 

21 ‘‘(bb) That, during a year, 

22 not more than 3 percent of for23 eign-born, work authorized indi24 viduals whose identity and work 

25 eligibility are submitted to the 


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1 System are the subject of a ten2 tative nonconfirmation. 

3 ‘‘(iii) CONTAINMENT OF ERROR

4 RATES.—That, during a year, the rate of 

5 incorrect final and incorrect tentative non6 confirmations shall not have increased by 

7 more than 3 percent over the previous 

8 year. 

9 ‘‘(iv) MEASURABLE EMPLOYER COM10 PLIANCE WITH SYSTEM REQUIREMENTS.— 

11 ‘‘(I) NO DISCRIMINATION BASED

12 ON SYSTEM OPERATIONS.—The Sys13 tem has not resulted in increased em14 ployment discrimination on the basis 

15 of race or national origin. 

16 ‘‘(II) REQUIREMENT FOR INDE17 PENDENT STUDY.—The determination 

18 described in subclause (I) shall be 

19 based on an independent study com20 missioned by the Comptroller General 

21 in each phase of expansion of the Sys22 tem. 

23 ‘‘(v) PROTECTION OF WORKERS’ PRI24 VATE INFORMATION.—At least 97 percent 

25 of employers who participate in the System 


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1 are in full compliance with the privacy re2 quirements described in this subsection. 

3 ‘‘(vi) EFFECTIVE SECURITY.—An as4 sessment of the privacy and confidentiality 

5 of the system and of the overall security of 

6 the system with respect to cybertheft and 

7 theft and misuse of private data. 

8 ‘‘(vii) ADEQUATE AGENCY STAFFING

9 AND FUNDING.—The Secretary and Com10 missioner of Social Security have sufficient 

11 funding to meet all of the deadlines and re12 quirements of this subsection. 

13 ‘‘(C) CONSULTATION.—In conducting a 

14 study under this paragraph, the Comptroller 

15 General shall consult with representatives of 

16 business, labor, immigrant communities, State 

17 governments, privacy advocates, and appro18 priate departments of the United States. 

19 ‘‘(D) REQUIREMENT FOR REPORTS.—Not 

20 later than 21 months after the date of the en21 actment of this Act and annually thereafter, the 

22 Comptroller General shall submit to the Sec23 retary and to Congress a report containing the 

24 findings of the study carried out under this 

25 paragraph. 


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1 ‘‘(E) CERTIFICATION.—If the Comptroller 

2 General determines that the System meets the 

3 requirements set out in clauses (i) through (vii) 

4 of subparagraph (B) for a year, the Comptroller 

5 shall certify such determination and submit 

6 such certification to Congress with the report 

7 required by subparagraph (D). 

8 ‘‘(20) ANNUAL AUDIT AND REPORT.— 

9 ‘‘(A) PURPOSE OF THE AUDIT AND RE10 PORT.—The Office for Civil Rights and Civil 

11 Liberties shall conduct annual audits of the sys12 tem described in section 403(a) of the Illegal 

13 Immigration Reform and Responsibility Act of 

14 1996, Public Law 104–208, Div. C, 110 Stat. 

15 3009-546, to assess employer compliance with 

16 System requirements, including civil rights and 

17 civil liberties protections, and compliance with 

18 the System rules and procedures set forth in 

19 the Memorandum of Understanding between 

20 employers and the Social Security Administra21 tion and the Department of Homeland Security. 

22 ‘‘(B) REQUIREMENTS OF AUDIT.—Annual 

23 audits shall include, but are not limited to, the 

24 following activities: 


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1 ‘‘(i) Use of testers to check if employ2 ers are using E-Verify as outlined in the 

3 Memorandum of Understanding between 

4 employers and the Department of Home5 land Security and the Social Security Ad6 ministration, including if employers are 

7 misusing the system to prescreen job appli8 cants, if employers are giving proper notifi9 cation to employees’ regarding tentative 

10 non-confirmations, and if employers are 

11 taking adverse actions against workers 

12 based upon tentative non-confirmations. 

13 ‘‘(ii) Random audits of employers to 

14 confirm that employers are using the sys15 tem as outlined in the Memorandum of 

16 Understanding and in a manner consistent 

17 with civil rights and civil liberties protec18 tions. 

19 ‘‘(iii) Periodic audits of employers for 

20 which the Special Counsel has received in21 formation or complaints and/or actual 

22 charges of citizenship/national origin dis23 crimination or document abuse. 

24 ‘‘(C) AUTHORITY OF OFFICE FOR CIVIL

25 RIGHTS AND CIVIL LIBERTIES.—The Office 


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1 shall have the authority to obtain from users of 

2 the E-Verify program relevant documents and 

3 testimony and answers to written interrog4 atories. The Office shall also have the authority 

5 to conduct site visits, and interview employees. 

6 ‘‘(D) FAILURE OF EMPLOYERS TO CO7 OPERATE.—Employers that fail to cooperate 

8 with the Office for Civil Rights and Civil Lib9 erties shall be noted in the annual report set 

10 forth below in subsection (E). 

11 ‘‘(E) REQUIREMENT FOR REPORTS.—Not 

12 later than 18 months after the date of enact13 ment of this Act, and annually thereafter, the 

14 Office for Civil Rights and Civil Liberties shall 

15 submit to the President of the Senate, the 

16 Speaker of the House of Representatives, and 

17 the appropriate committees and subcommittees 

18 of Congress a report containing the findings of 

19 the audit carried out under this paragraph. 

20 ‘‘(21) ADMINISTRATIVE REVIEW.— 

21 ‘‘(A) IN GENERAL.—An individual who re22 ceives a final nonconfirmation may, not later 

23 than 30 days after the date of such notice, file 

24 an appeal of such final nonconfirmation. An in25 dividual subject to a final nonconfirmation may 


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1 file an appeal thereof after the 30-day period if 

2 the appeal is accompanied by evidence that the 

3 individual did not receive timely notice of a ten4 tative or final nonconfirmation, or that there 

5 was good cause for the failure to file an appeal 

6 within the 30-day period. 

7 ‘‘(B) PROCEDURES.— 

8 ‘‘(i) The Secretary and Commissioner 

9 of Social Security shall develop procedures 

10 to review appeals filed under subparagraph 

11 (A) and to make final determinations on 

12 such appeals. The review on appeal may 

13 include any additional or newly discovered 

14 evidence presented by the appellant during 

15 the time of the pending appeal or subse16 quently by motion to reopen. 

17 ‘‘(ii) The Secretary or the Commis18 sioner shall stay the final nonconfirmation 

19 notice pending the resolution of the admin20 istrative appeal unless the Secretary or the 

21 Commissioner determines that the admin22 istrative appeal is frivolous, unlikely to 

23 succeed on the merits, or filed for purposes 

24 of delay. 


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1 ‘‘(C) REVIEW FOR ERRORS.—If a final de2 termination on an appeal filed under subpara3 graph (A) results in a confirmation of an indi4 vidual’s eligibility for employment in the United 

5 States, the administrative review process shall 

6 require the Secretary to determine if the final 

7 nonconfirmation issued for the individual was 

8 the result of— 

9 ‘‘(i) an error or negligence on the part 

10 of an employee or official operating or re11 sponsible for the System; 

12 ‘‘(ii) an error or negligence on the 

13 part of an employer or entity acting on be14 half of the employer; 

15 ‘‘(iii) the decision rules, processes, or 

16 procedures utilized by the System; or 

17 ‘‘(iv) erroneous system information 

18 that was not the result of acts or omissions 

19 of the individual. 

20 ‘‘(D) COMPENSATION FOR ERROR.— 

21 ‘‘(i) IN GENERAL.—If the individual 

22 was denied a stay under subparagraph 

23 (B)(2) and Secretary makes a determina24 tion under subparagraph (C) that the final 

25 nonconfirmation issued for an individual 


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1 was not caused by an act or omission of 

2 the individual or the employer, the Sec3 retary shall compensate the individual for 

4 lost wages and for reasonable costs and at5 torneys’ fees not exceeding $75,000, sub6 ject to annual inflation adjustments per 

7 the US Consumer Price Index - All Urban 

8 Consumers (CPI-U) compiled by the Bu9 reau of Labor Statistics. 

10 ‘‘(ii) CALCULATION OF LOST

11 WAGES.—Lost wages shall be calculated 

12 based on the wage rate and work schedule 

13 that prevailed prior to termination. The in14 dividual shall be compensated for wages 

15 lost beginning on the first scheduled work 

16 day after employment was terminated and 

17 ending 180 days after completion of the 

18 administrative review process described in 

19 this paragraph, or judicial review if any, or 

20 the day after the individual is reinstated or 

21 obtains employment elsewhere, whichever 

22 occurs first. If the individual obtains em23 ployment elsewhere at a lower wage rate, 

24 the individual shall be compensated for the 

25 difference in wages for the period ending 


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1 180 days after completion of the adminis2 trative review process or judicial review, if 

3 any. 

4 ‘‘(iii) LIMITATION ON COMPENSA5 TION.—For purposes of determining an in6 dividual’s compensation for the loss of em7 ployment, such compensation shall not in8 clude any period in which the individual 

9 was ineligible for employment in the 

10 United States. 

11 ‘‘(iv) SOURCE OF FUNDS.—Compensa12 tion or reimbursement provided under this 

13 paragraph shall not be provided from 

14 funds appropriated in annual appropria15 tions Acts to the Secretary for the Depart16 ment of Homeland Security. 

17 ‘‘(E) TEMPORARY STAY OF FINAL ADMIN18 ISTRATIVE DECISION DENYING APPEAL.—If the 

19 appeal is denied, the Secretary shall stay the 

20 decision for a period of 15 days to permit the 

21 individual to seek judicial review of the decision 

22 pursuant to paragraph (21). 

23 ‘‘(22) JUDICIAL REVIEW.— 

24 ‘‘(A) IN GENERAL.—After the Secretary 

25 makes a final determination on an appeal filed 


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1 by an individual under paragraph (19), the in2 dividual may obtain judicial review of such de3 termination in a civil action commenced not 

4 later than 90 days after notice of such decision, 

5 or such further time as the Secretary may 

6 allow. 

7 ‘‘(B) JURISDICTION.—A civil action for 

8 such judicial review shall be brought in the dis9 trict court of the United States for the judicial 

10 district in which the plaintiff resides, or has a 

11 principal place of business, or, if the plaintiff 

12 does not reside or have a principal place of 

13 business within any such judicial district, in the 

14 District Court of the United States for the Dis15 trict of Columbia. 

16 ‘‘(C) ANSWER.—As part of the Secretary’s 

17 answer to a complaint for such judicial review, 

18 the Secretary shall file a certified copy of the 

19 administrative record compiled during the ad20 ministrative review under paragraph (21), in21 cluding the evidence upon which the findings 

22 and decision complained of are based. The court 

23 shall have power to enter, upon the pleadings 

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1 tive review, with or without remanding the 

2 cause for a rehearing. 

3 ‘‘(D) COMPENSATION FOR ERROR.— 

4 ‘‘(i) IN GENERAL.—In cases in which 

5 the individual was denied a stay under 

6 subparagraph (19)(B)(2) and such judicial 

7 review reverses the final determination of 

8 the Secretary made under paragraph (21), 

9 the court shall compensate the individual 

10 for lost wages and for reasonable costs and 

11 attorneys’ fees not exceeding $75,000, sub12 ject to annual inflation adjustments per 

13 the US Consumer Price Index - All Urban 

14 Consumers (CPI-U) compiled by the Bu15 reau of Labor Statistics. 

16 ‘‘(ii) CALCULATION OF LOST

17 WAGES.—Lost wages shall be calculated 

18 based on the wage rate and work schedule 

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 


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1 obtains employment elsewhere, whichever 

2 occurs first. If the individual obtains em3 ployment elsewhere at a lower wage rate, 

4 the individual shall be compensated for the 

5 difference in wages for the period ending 

6 180 days after completion of the adminis7 trative and judicial review process. 

8 ‘‘(23) PRIVATE RIGHT OF ACTION.—If the Sec9 retary makes a determination under paragraph (21) 

10 that the final nonconfirmation issued for an indi11 vidual was caused by an act or negligence on the 

12 part of the employer, the individual may seek recov13 ery of damages, reinstatement, back pay, and other 

14 appropriate remedies in a civil action against the 

15 employer. Such action must be commenced not later 

16 than 90 days after notice of the Secretary’s decision. 

17 The action shall be brought in the district court of 

18 the United States for the judicial district in which 

19 the plaintiff resides, or has a principal place of busi20 ness, or, if the plaintiff does not reside or have a 

21 principal place of business within any such judicial 

22 district, in the District Court of the United States 

23 for the District of Columbia. 

24 ‘‘(24) STATUTORY CONSTRUCTION.—Nothing in 

25 this subsection shall affect any existing rights and 


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1 obligations of employers or employees under other 

2 Federal, State, or local laws. 

3 ‘‘(25) ENHANCED VERIFICATION SYSTEM.—The 

4 Secretary, in consultation with the Commissioner of 

5 Social Security, shall establish a voluntary self6 verification system in order to prevent the fraudu7 lent or other misuse of the individual’s Social Secu8 rity number during employment verification, to pre9 vent employer misuse of the system, to protect pri10 vacy, and to limit erroneous nonconfirmation during 

11 employment verification. The voluntary system shall 

12 allow an individual to verify the individual’s own 

13 record, to block and unblock the use of the individ14 ual’s Social Security number, and to register a 

15 phone number or e-mail address to be contacted 

16 upon removal of the block. 

17 ‘‘(A) VOLUNTARY ENROLLMENT.—An indi18 vidual may enroll in the Enhanced Verification 

19 System on a voluntary basis. 

20 ‘‘(B) SELECT ENTITIES REQUIRED TO PAR21 TICIPATE IN THE ENHANCED VERIFICATION

22 SYSTEM.— 

23 ‘‘(i) EXECUTIVE DEPARTMENTS.— 

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1 hanced Verification System and shall com2 ply with the terms and conditions of such 

3 an election. 

4 ‘‘(ii) LEGISLATIVE BRANCH.—Each 

5 Member of Congress, each officer of Con6 gress, and the head of each agency of the 

7 legislative branch shall elect to participate 

8 in the Enhanced Verification System and 

9 shall comply with the terms and conditions 

10 of such an election. 

11 ‘‘(C) ELECTRONIC ACCESS.—The Secretary 

12 shall establish procedures allowing individuals 

13 to use a Personal Identification Number (PIN) 

14 or other biographic information to authenticate 

15 the individual’s identity and to block and 

16 unblock the individual’s Social Security number 

17 electronically. 

18 ‘‘(D) USE OF ENHANCED VERIFICATION

19 SYSTEM RECEIPT FOR PURPOSE OF EMPLOY20 MENT VERIFICATION.— 

21 ‘‘(i) ENCRYPTED CODE.—The Sec22 retary shall establish procedures to allow 

23 an individual who has authenticated the in24 dividual’s identity and unblocked the indi25 vidual’s Social Security number to receive 


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1 a single-use encrypted code which may be 

2 presented to the employer instead of the 

3 documents described in subsection (b) and 

4 for the employer to submit the encrypted 

5 single-use code to the system. 

6 ‘‘(ii) CONFIRMATION.—An employer 

7 who submits a valid single-use encrypted 

8 code with respect to an individual shall im9 mediately receive a confirmation through 

10 the system. 

11 ‘‘(iii) EXPEDITED REVIEW PROC12 ESS.—The Secretary shall establish an ex13 pedited review process to allow an indi14 vidual who has authenticated the individ15 ual’s identity and unblocked the individ16 ual’s Social Security number immediately 

17 to correct user or system errors which re18 sult in an erroneous non-confirmation of 

19 work eligibility. 

20 ‘‘(E) REPORTS.— 

21 ‘‘(i) IN GENERAL.—The Secretary of 

22 Homeland Security shall submit to the 

23 Committees on the Judiciary of the House 

24 of Representatives and of the Senate re25 ports on the Enhanced Verification System 


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1 within 3 months after the end of the third 

2 and fourth years in which the programs 

3 are in effect. Such reports shall— 

4 ‘‘(I) assess the degree of fraudu5 lent attesting of United States citizen6 ship; 

7 ‘‘(II) assess the benefits of the 

8 Enhanced Verification System to em9 ployers and the degree to which it 

10 prevents fraudulent claims of United 

11 States citizenship or legal residence 

12 and strengthens the enforcement of 

13 section 274A; 

14 ‘‘(III) assess the benefits of the 

15 Enhanced Verification System to indi16 viduals and the degree to which they 

17 prevent misuse of the System and er18 roneous non-confirmations during em19 ployment verification; 

20 ‘‘(IV) assess if the Enhanced 

21 Verification System aides in reducing 

22 discrimination during the employment 

23 verification process; 

24 ‘‘(V) assess the degree to which 

25 the Enhanced Verification System 


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1 protects employee civil liberties and 

2 privacy; and 

3 ‘‘(VI) include recommendations 

4 on whether or not Enhanced 

5 Verification System should be contin6 ued or modified, and 

7 ‘‘(ii) REPORT ON EXPANSION.—Not 

8 later than 6 months after the end of the 

9 fourth year in which the programs are in 

10 effect, the Secretary of Homeland Security 

11 shall submit to the Committees on the Ju12 diciary of the House of Representatives 

13 and the Senate a report— 

14 ‘‘(I) evaluating whether the prob15 lems identified by the report sub16 mitted under subsection (i) have been 

17 substantially resolved; and 

18 ‘‘(II) describing what actions the 

19 Secretary of Homeland Security shall 

20 take before requiring any individuals 

21 to participate in the Enhanced 

22 Verification System. 

23 ‘‘(F) LIMITATION ON USE OF THE CON24 FIRMATION SYSTEM AND ANY RELATED SYS25 TEMS.—Notwithstanding any other provision of 


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1 law, nothing in this subtitle shall be construed 

2 to permit or allow any department, bureau, or 

3 other agency of the United States Government 

4 to utilize any information, data base, or other 

5 records assembled under this subtitle for any 

6 other purpose other than as provided for under 

7 the Enhanced Verification System. 

8 ‘‘(d) COMPLIANCE.— 

9 ‘‘(1) COMPLAINTS AND INVESTIGATIONS.—The 

10 Secretary shall establish procedures— 

11 ‘‘(A) for a person to file a complaint re12 garding a potential violation of paragraph 

13 (1)(A), (1)(B), or (2) of subsection (a); 

14 ‘‘(B) for the investigation of any such com15 plaint that the Secretary determines is appro16 priate to investigate; and 

17 ‘‘(C) for the investigation of such other 

18 violation of paragraph (1)(A), (1)(B), or (2) of 

19 subsection (a) that the Secretary determines is 

20 appropriate. 

21 ‘‘(2) AUTHORITY IN INVESTIGATIONS.— 

22 ‘‘(A) IN GENERAL.—In conducting inves23 tigations and hearings under this subsection, of24 ficers and employees of the Department of 

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1 retary, may compel by subpoena the attendance 

2 of witnesses and the production of evidence at 

3 any designated place in an investigation or case 

4 under this subsection. 

5 ‘‘(B) FAILURE TO COOPERATE.—In case of 

6 refusal to obey a subpoena lawfully issued 

7 under subparagraph (A), the Secretary may re8 quest that the Attorney General apply in an ap9 propriate district court of the United States for 

10 an order requiring compliance with such sub11 poena, and any failure to obey such order may 

12 be punished by such court as contempt. 

13 ‘‘(C) DEPARTMENT OF LABOR.—The Sec14 retary of Labor shall have the investigative au15 thority provided under section 11(a) of the Fair 

16 Labor Standards Act of 1938 (29 U.S.C. 

17 211(a)) to ensure compliance with the provi18 sions of this section, or any regulation or order 

19 issued under this section. 

20 ‘‘(D) AGENCY REPRESENTATION AND CO21 ORDINATION.—United States Immigration and 

22 Customs Enforcement officials may not mis23 represent to employees or employers that they 

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1 forces health and safety law or other labor laws, 

2 provides health care services, or any other serv3 ices intended to protect life and safety. 

4 ‘‘(3) COMPLIANCE PROCEDURES.— 

5 ‘‘(A) PREPENALTY NOTICE.—If the Sec6 retary has reasonable cause to believe that 

7 there has been a violation of a requirement of 

8 this section and determines that further pro9 ceedings related to such violation are war10 ranted, the Secretary shall issue to the em11 ployer concerned a written notice of the Sec12 retary’s intention to issue a claim for a fine or 

13 other penalty. Such notice shall— 

14 ‘‘(i) describe the violation; 

15 ‘‘(ii) specify the laws and regulations 

16 allegedly violated; 

17 ‘‘(iii) disclose the material facts which 

18 establish the alleged violation; and 

19 ‘‘(iv) inform such employer that the 

20 employer shall have a reasonable oppor21 tunity to make representations as to why a 

22 claim for a monetary or other penalty 

23 should not be imposed. 

24 ‘‘(B) REMISSION OR MITIGATION OF PEN25 ALTIES.— 


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1 ‘‘(i) PETITION BY EMPLOYER.—If an 

2 employer receives written notice of a fine 

3 or other penalty in accordance with sub4 paragraph (A), the employer may file with5 in 45 days from receipt of such notice, 

6 with the Secretary a petition for the remis7 sion or mitigation of such fine or penalty, 

8 or a petition for termination of the pro9 ceedings. The petition may include any rel10 evant evidence or proffer of evidence the 

11 employer wishes to present, and shall be 

12 filed and considered in accordance with 

13 procedures to be established by the Sec14 retary. 

15 ‘‘(ii) REVIEW BY SECRETARY.—If the 

16 Secretary finds that such fine or other 

17 penalty was incurred erroneously, or finds 

18 the existence of such mitigating cir19 cumstances as to justify the remission or 

20 mitigation of such fine or penalty, the Sec21 retary may remit or mitigate such fine or 

22 other penalty on the terms and conditions 

23 as the Secretary determines are reasonable 

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1 gating circumstances may include good 

2 faith compliance and participation in, or 

3 agreement to participate in, the System, if 

4 not otherwise required. 

5 ‘‘(iii) APPLICABILITY.—This subpara6 graph may not apply to an employer that 

7 has or is engaged in a pattern or practice 

8 of violations of paragraph (1)(A), (1)(B), 

9 or (2) of subsection (a) or of any other re10 quirements of this section. 

11 ‘‘(C) PENALTY CLAIM.—After considering 

12 evidence and representations offered by the em13 ployer pursuant to subparagraph (B), the Sec14 retary shall determine whether there was a vio15 lation and promptly issue a written final deter16 mination setting forth the findings of fact and 

17 conclusions of law on which the determination 

18 is based and the appropriate penalty. 

19 ‘‘(4) CIVIL PENALTIES.— 

20 ‘‘(A) HIRING OR CONTINUING TO EMPLOY

21 UNAUTHORIZED ALIENS.—Any employer that 

22 violates paragraph (1)(A) or (2) of subsection 

23 (a) shall pay civil penalties as follows: 

24 ‘‘(i) Pay a civil penalty of not less 

25 than $500 and not more than $4,000 for 


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1 each unauthorized alien with respect to 

2 each such violation. 

3 ‘‘(ii) If the employer has previously 

4 been fined 1 time within the preceding 12 

5 months under this subparagraph, pay a 

6 civil penalty of not less than $4,000 and 

7 not more than $10,000 for each unauthor8 ized alien with respect to each such viola9 tion. 

10 ‘‘(iii) If the employer has previously 

11 been fined more than 1 time within the 

12 preceding 12 months under this subpara13 graph or has failed to comply with a pre14 viously issued and final order related to 

15 any such provision, pay a civil penalty of 

16 not less than $6,000 and not more than 

17 $20,000 for each unauthorized alien with 

18 respect to each such violation. 

19 ‘‘(B) RECORDKEEPING OR VERIFICATION

20 PRACTICES.—Any employer that violates or fails 

21 to comply with paragraph (1)(B) of subsection 

22 (a) shall pay a civil penalty as follows: 

23 ‘‘(i) Pay a civil penalty of not less 

24 than $200 and not more than $2,000 for 

25 each such violation or failure. 


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1 ‘‘(ii) If the employer has previously 

2 been fined 1 time within the preceding 12 

3 months under this subparagraph, pay a 

4 civil penalty of not less than $400 and not 

5 more than $4,000 for each such violation 

6 of failure. 

7 ‘‘(iii) If the employer has previously 

8 been fined more than 1 time within the 

9 preceding 12 months under this subpara10 graph or has failed to comply with a pre11 viously issued and final order related to 

12 such requirements, pay a civil penalty of 

13 $6,000 for each such violation or failure. 

14 ‘‘(iv) SPECIAL RULE GOVERNING PA15 PERWORK VIOLATION.—In the case where 

16 an employer commits a violation of this 

17 section that is deemed to be purely a pa18 perwork violation where the Secretary fails 

19 to establish any intent to hire an individual 

20 who is not unauthorized for employment in 

21 the United States, the Secretary shall per22 mit the employer to correct such paper23 work error within 30 days of receiving no24 tice from the Secretary of such violation. 


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1 ‘‘(C) OTHER PENALTIES.—Notwith2 standing subparagraphs (A) and (B), the Sec3 retary may impose additional penalties for vio4 lations, including cease and desist orders, spe5 cially designed compliance plans to prevent fur6 ther violations, suspended fines to take effect in 

7 the event of a further violation, and in appro8 priate cases, the civil penalty described in sub9 section (e)(2). 

10 ‘‘(5) JUDICIAL REVIEW.— 

11 ‘‘(A) IN GENERAL.—An employer adversely 

12 affected by a final determination may, within 

13 45 days after the date the final determination 

14 is issued, obtain judicial review of such deter15 mination. 

16 ‘‘(B) REPORT.—Not later than 180 days 

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

18 Director of the Federal Judicial Center shall 

19 submit to Congress a report on judicial review 

20 of a final determination. The report shall con21 tain recommendations on jurisdiction and pro22 cedures that shall be instituted to seek ade23 quate and timely review of such decision. 

24 ‘‘(6) ENFORCEMENT OF ORDERS.—If an em25 ployer fails to comply with a final determination 


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1 issued against that employer under this subsection, 

2 and the final determination is not subject to review 

3 as provided in paragraph (5), the Attorney General 

4 may file suit to enforce compliance with the final de5 termination, not earlier than 46 days and not later 

6 than 90 days, after the date the final determination 

7 is issued, in any appropriate district court of the 

8 United States. The burden shall remain on the em9 ployer to show that the final determination was not 

10 supported by a preponderance of the evidence. 

11 ‘‘(7) RECOVERY OF COSTS AND ATTORNEYS’ 

12 FEES.—In any appeal brought under paragraph (5) 

13 or suit brought under paragraph (6), the employer 

14 shall be entitled to recover from the Secretary rea15 sonable costs and attorneys’ fees if such employer 

16 prevails on the merits of the case. The award of at17 torneys’ fees shall not exceed $75,000. Such amount 

18 shall be subject to annual inflation adjustments per 

19 the United States Consumer Price Index - All Urban 

20 Consumers (CPI-U) compiled by the Bureau of 

21 Labor Statistics. Any costs and attorneys’ fees as22 sessed against the Secretary shall be charged against 

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1 ment is made, and shall not be reimbursed from any 

2 other source. 

3 ‘‘(8) COORDINATION.—An investigation under 

4 paragraph (1)(C) shall be coordinated with the ap5 propriate regional office of the National Labor Rela6 tions Board, the Department of Labor, and all rel7 evant State and local agencies that are charged with 

8 enforcing workplace standards. Evidence gathered 

9 from such agencies shall be considered in deter10 mining whether the entity under investigation has 

11 violated subsection (a). 

12 ‘‘(e) CRIMINAL PENALTIES AND INJUNCTIONS FOR

13 PATTERN OR PRACTICE VIOLATIONS.— 

14 ‘‘(1) CRIMINAL PENALTY.—An employer that 

15 engages in a pattern or practice of knowing viola16 tions of paragraph (1)(A) or (2) of subsection (a) 

17 shall be fined not more than $20,000 for each unau18 thorized alien with respect to whom such a violation 

19 occurs, imprisoned for not more than 3 years for the 

20 entire pattern or practice, or both. 

21 ‘‘(2) ENJOINING OF PATTERN OR PRACTICE

22 VIOLATIONS.—If the Secretary or the Attorney Gen23 eral has reasonable cause to believe that an employer 

24 is engaged in a pattern or practice of employment in 

25 violation of paragraph (1)(A) or (2) of subsection 


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1 (a), the Attorney General may bring a civil action in 

2 the appropriate district court of the United States 

3 requesting such relief, including a permanent or 

4 temporary injunction, restraining order, or other 

5 order against the employer, as the Secretary deems 

6 necessary. 

7 ‘‘(f) ADJUSTMENT FOR INFLATION.—All penalties 

8 and limitations on the recovery of costs and attorney’s fees 

9 in this section shall be increased every 4 years beginning 

10 January 2010 to reflect the percentage increase in the 

11 consumer price index for all urban consumers (all items; 

12 United States city average) for the 48 month period end13 ing with September of the year preceding the year such 

14 adjustment is made. Any adjustment under this subpara15 graph shall be rounded to the nearest dollar. 

16 ‘‘(g) PROHIBITION OF INDEMNITY BONDS.— 

17 ‘‘(1) PROHIBITION.—It is unlawful for an em18 ployer, in the hiring of an individual, to require the 

19 individual to post a bond or security, to pay or agree 

20 to pay an amount, or otherwise to provide a finan21 cial guaranty or indemnity, against any potential li22 ability arising under this section relating to such hir23 ing of the individual. 

24 ‘‘(2) CIVIL PENALTY.—Any employer which is 

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1 tion of the monetary penalty under subsection (d), 

2 to have violated paragraph (1) shall be subject to a 

3 civil penalty of $10,000 for each violation and to an 

4 administrative order requiring the return of any 

5 amounts received in violation of such paragraph to 

6 the individual. 

7 ‘‘(h) PROHIBITION ON AWARD OF GOVERNMENT

8 CONTRACTS, GRANTS, AND AGREEMENTS.— 

9 ‘‘(1) EMPLOYERS WITH NO CONTRACTS, 

10 GRANTS, OR AGREEMENTS.— 

11 ‘‘(A) IN GENERAL.—If an employer who 

12 does not hold a Federal contract, grant, or co13 operative agreement is determined by the Sec14 retary to be a repeat violator of this section the 

15 employer shall be debarred from the receipt of 

16 a Federal contract, grant, or cooperative agree17 ment for a period of 5 years. The Secretary or 

18 the Attorney General shall advise the Adminis19 trator of General Services of such a debarment, 

20 and the Administrator of General Services shall 

21 list the employer on the List of Parties Ex22 cluded from Federal Procurement and Non23 procurement Programs for a period of 5 years. 

24 ‘‘(B) WAIVER.—The Administrator of Gen25 eral Services, in consultation with the Secretary 


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1 and the Attorney General, may waive operation 

2 of this subsection or may limit the duration or 

3 scope of the debarment. 

4 ‘‘(2) EMPLOYERS WITH CONTRACTS, GRANTS, 

5 OR AGREEMENTS.— 

6 ‘‘(A) IN GENERAL.—An employer who 

7 holds a Federal contract, grant, or cooperative 

8 agreement and is determined by the Secretary 

9 to be a repeat violator of this section or is con10 victed of a crime under this section, shall be 

11 debarred from the receipt of new Federal con12 tracts, grants, or cooperative agreements for a 

13 period of 5 years. 

14 ‘‘(B) NOTICE TO AGENCIES.—Prior to de15 barring the employer under subparagraph (A), 

16 the Secretary, in cooperation with the Adminis17 trator of General Services, shall advise any 

18 agency or department holding a contract, grant, 

19 or cooperative agreement with the employer of 

20 the Government’s intention to debar the em21 ployer from the receipt of new Federal con22 tracts, grants, or cooperative agreements for a 

23 period of 5 years. 

24 ‘‘(C) REVIEW.—The decision of whether to 

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1 graph shall be reviewable pursuant to section 9, 

2 Federal Acquisition Regulation. 

3 ‘‘(3) SUSPENSION.—Indictments for violations 

4 of this section or adequate evidence of actions that 

5 could form the basis for debarment under this sub6 section shall be considered a cause for suspension 

7 under the procedures and standards for suspension 

8 prescribed by the Federal Acquisition Regulation. 

9 ‘‘(4) REPEAT VIOLATOR DEFINED.—In this 

10 subsection, the term ‘repeat violator’ means, with re11 spect to an employer, that the employer has violated 

12 paragraph (1)(A), (1)(B), or (2) of subsection (a) 

13 more than 1 time and that such violations were dis14 covered as a result of more than 1 separate inves15 tigation of the employer. A violation of such para16 graph (1)(B) that is inadvertent and unrelated to a 

17 violation of subsection (a)(1)(A) and (a)(2) may not 

18 be considered to be a violation of such paragraph 

19 (1)(B) for the purposes of this paragraph. 

20 ‘‘(i) MISCELLANEOUS PROVISIONS.— 

21 ‘‘(1) DOCUMENTATION.—In providing docu22 mentation or endorsement of authorization of aliens 

23 (other than aliens lawfully admitted for permanent 

24 residence) eligible to be employed in the United 

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1 tions with respect to the period or type of employ2 ment or employer shall be conspicuously stated on 

3 the documentation or endorsement. 

4 ‘‘(2) PREEMPTION.—The provisions of this sec5 tion preempt any State or local law, contract license, 

6 or other standard, requirement, action or instrument 

7 from— 

8 ‘‘(A) imposing sanctions or liabilities for 

9 employing, or recruiting or referring for em10 ployment, unauthorized aliens, or for working 

11 without employment authorization; 

12 ‘‘(B) requiring those hiring, recruiting, or 

13 referring individuals for employment to ascer14 tain or verify the individuals’ employment au15 thorization or to participate in an employment 

16 authorization verification system, or requiring 

17 individuals to demonstrate employment author18 ization; and 

19 ‘‘(C) requiring, authorizing or permitting 

20 the use of an employment verification system, 

21 unless otherwise mandated by Federal law, for 

22 any other purpose including, but without limita23 tion, such purposes as verifying the status of 

24 renters, determining eligibility for receipt of 

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1 taining a business license or other license, or 

2 conducting a background check. 

3 ‘‘(j) BACKPAY REMEDIES.—Neither backpay nor any 

4 other monetary remedy for unlawful employment prac5 tices, workplace injuries or other causes of action giving 

6 rise to liability shall be denied to a present or former em7 ployee on account of: the employer’s or the employee’s fail8 ure to comply with the requirements of this section in es9 tablishing or maintaining the employment relationship; the 

10 employee’s violation of the provisions of federal law related 

11 to the employment verification system set forth in sub12 section (a); or the employee’s continuing status as an un13 authorized alien both during and after termination of em14 ployment. 

15 ‘‘(k) DEFINITIONS.—In this section— 

16 ‘‘(1) EMPLOYER.—The term ‘employer’ means 

17 any person or entity, including any entity of the 

18 Government of the United States, hiring an indi19 vidual for employment in the United States. 

20 ‘‘(2) SECRETARY.—Except as otherwise pro21 vided, the term ‘Secretary’ means the Secretary of 

22 Homeland Security. 

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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 E-VERIFY.—Sections 401, 

10 402, 403, 404, and 405 of the Illegal Immigra11 tion Reform and Immigrant Responsibility Act 

12 of 1996 (division C of Public Law 104–208; 8 

13 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 


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1 Public Law 104–208; 8 U.S.C. 1360 note) 

2 is repealed. 

3 (C) REPEAL OF DEFINITION.—Paragraph 

4 (1)(F) of section 1961 of title 18, United 

5 States Code, is repealed. 

6 (2) CONSTRUCTION.—Nothing in this sub7 section or in subsection (c) of section 274A, as 

8 amended by subsection (a), may be construed to 

9 limit the authority of the Secretary to allow or con10 tinue to allow the participation of employers who 

11 participated in the E-Verify program under such 

12 sections 401, 402, 403, 404, and 405 of the Illegal 

13 Immigration Reform and Immigrant Responsibility 

14 Act of 1996 (division C of Public Law 104–208; 8 

15 U.S.C. 1324a note) in the Electronic Employment 

16 Verification System established pursuant to such 

17 subsection (d). 

18 (c) TECHNICAL AMENDMENTS.— 

19 (1) DEFINITION OF UNAUTHORIZED ALIEN.— 

20 Sections 218(i)(1) (8 U.S.C. 1188(i)(1)), 245(c)(8) 

21 (8 U.S.C. 1255(c)(8)), 274(a)(3)(B)(i) (8 U.S.C. 

22 1324(a)(3)(B)(i)), and 274B(a)(1) (8 U.S.C. 

23 1324b(a)(1)) are amended by striking ‘‘274A(h)(3)’’ 

24 and inserting ‘‘274A(h)’’. 


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1 (2) DOCUMENT REQUIREMENTS.—Section 274B 

2 (8 U.S.C. 1324b) is amended— 

3 (A) in subsections (a)(6) and (g)(2)(B), by 

4 striking ‘‘274A(b)’’ and inserting ‘‘274A(d)’’; 

5 and 

6 (B) in subsection (g)(2)(B)(ii), by striking 

7 ‘‘274A(b)(5)’’ and inserting ‘‘274A(d)(9)’’. 

8 (d) EMPLOYMENT VERIFICATION ADVISORY

9 PANEL.— 

10 (1) IN GENERAL.—Not later than 180 days 

11 after the date of enactment of this Act, the Sec12 retary shall establish an Employment Verification 

13 Advisory Panel (hereinafter in the subsection re14 ferred to as the ‘‘Advisory Panel’’). 

15 (2) MEMBERSHIP.—The Advisory Panel should 

16 consist of members appointed by the Secretary, after 

17 consulting with the Commissioner of Social Security, 

18 the Director of National Institutes of Standards and 

19 Technology, and other appropriate Federal agencies. 

20 Such members should include representatives from 

21 appropriate Federal agencies and private sector rep22 resentatives of affected industries and groups, in23 cluding immigration policy, human resource, em24 ployer and employee organizations, experts in fields 


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1 including database security, employment verification, 

2 biometrics, and privacy. 

3 (3) FUNCTIONS.— 

4 (A) ADVICE ON IMPLEMENTATION AND DE5 PLOYMENT.—The Advisory Panel shall advise 

6 the Secretary and the Commissioner of Social 

7 Security on the implementation and deployment 

8 of the verification systems established under the 

9 amendments made by this section, including— 

10 (i) the best means of promoting effi11 ciency, compliance responsiveness, accu12 racy, public education, user support, inter13 operability, and cost-effectiveness of the 

14 systems established under this section; 

15 (ii) the best practices and procedures 

16 in order to protect the privacy and identi17 ties of individuals enrolled in the systems 

18 established under this section; 

19 (iii) standards of database accuracy, 

20 error rates, privacy, and measurable com21 pliance with system rules that must be met 

22 before implementation begins and before 

23 each additional phase of implementation; 

24 and 


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1 (iv) the best means by which data ob2 tained through such systems may be used 

3 to timely improve the accuracy of data4 bases maintained by the Secretary and the 

5 Commissioner of Social Security. 

6 (B) STUDY AND REPORT ON IDENTITY FRAUD

7 AND ALTERNATIVES FOR STRENGTHENING IDENTITY

8 AUTHENTICATION.— 

9 (i) STUDY.—The Advisory Panel shall 

10 evaluate the vulnerability of the System to iden11 tity fraud and the degree to which individuals 

12 not authorized for employment in the United 

13 States are able to be confirmed by the System. 

14 (ii) REPORT.—Not later than 180 days 

15 after its establishment, the Advisory Panel shall 

16 issue a report to the Secretary on alternatives 

17 for strengthening identity authentication and 

18 preventing fraudulent confirmations by the Sys19 tem. The report shall— 

20 (I) survey available technologies for 

21 identity authentication, including but not 

22 limited to biometric and biographical iden23 tity assurance systems; 

24 (II) analyze alternatives to identity 

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1 hanced verification system described in 

2 subsection (c)(25) of section 274A of the 

3 Immigration and Nationality Act, as 

4 amended by this section; 

5 (III) analyze the technical feasibility 

6 of adding new identity authentication re7 quirements to the System described in sub8 section (c) of such section, including by 

9 considering: 

10 (IV) process burdens (at the point of 

11 collection, information processing, etc.); 

12 (V) performance burdens (anticipated 

13 system throughputs, scalability, 

14 reconfigurability, etc); 

15 (VI) accuracy and realistic failure 

16 rates and projected increases in erroneous 

17 nonconfirmations of work authorized indi18 viduals; 

19 (VII) projected compliance and non20 compliance rates, 

21 (VIII) data Security, data storage re22 quirements, and added risk to individuals’ 

23 privacy; 

24 (IX) estimate the costs and benefits of 

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1 tity authentication and evaluate their over2 all strengths and weaknesses, including but 

3 not limited to requirements that employers 

4 collect biometric, biographical, or other 

5 data from new employees instead of or in 

6 addition to the data identified in sub7 sections (b) and (c) of such section and re8 quirements that individuals participate in 

9 the enhanced verification system described 

10 in subsection (c)(25) of such section. 

11 (4) TERMINATION.—The Advisory Panel shall 

12 terminate 5 years after the date of the enactment of 

13 this Act. 

14 (e) EFFECTIVE DATE.—The amendments made by 

15 subsections (a), (b), and (c) shall take effect on the date 

16 that is 180 days after the date of the enactment of this 

17 Act. 

18 SEC. 202. PARITY WITH CIVIL RIGHTS ACT OF 1964. 

19 (a) PROHIBITION OF EMPLOYMENT DISCRIMINA20 TION.—Section 274B(a) (8 U.S.C. 1324b(a)) is amend21 ed— 

22 (1) by amending paragraph (1) to read as fol23 lows: 

24 ‘‘(1) IN GENERAL.—It is an unfair immigra25 tion-related employment practice for a person or 


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1 other entity to discriminate against any individual 

2 (other than an unauthorized alien defined in section 

3 274A(h)(3)) with respect to— 

4 ‘‘(A) the hiring, or recruitment or referral 

5 for a fee, of the individual for employment, the 

6 verification of the individual’s eligibility for em7 ployment, or the discharging of the individual 

8 from employment— 

9 ‘‘(i) because of such individual’s na10 tional origin; or 

11 ‘‘(ii) because of such individual’s citi12 zenship status; 

13 ‘‘(B) the compensation, terms, or condi14 tions of the employment of the individual.’’; 

15 (2) by amending paragraph (2)(A) to read as 

16 follows: 

17 ‘‘(A) a person or other entity that employs 

18 three or fewer employees, except for an ‘employ19 ment agency,’ meaning any person regularly un20 dertaking with or without compensation to pro21 cure employees for an employer or to procure 

22 for employees opportunities to work for an em23 ployer and includes an agent of such a per24 son.’’; 


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1 (3) by repealing section 274(a)(3) (8 U.S.C. 

2 1324(a)(3)); 

3 (4) in paragraph (6), by striking ‘‘if made for 

4 the purpose or with the intent of discriminating 

5 against an individual in violation of paragraph (1)’’ 

6 and inserting ‘‘in violation of paragraph (1). Addi7 tional information and compliance assistance will be 

8 provided to employers to assist them in complying 

9 with the law’’; 

10 (5) by inserting a new paragraph (7) as follows: 

11 ‘‘(7) ANTIDISCRIMINATION REQUIREMENTS OF

12 THE ELECTRONIC EMPLOYMENT VERIFICATION SYS13 TEM.—It is an unfair immigration-related employ14 ment practice for a person or other entity, in the 

15 course of the Electronic Employment Verification 

16 System described in section 274A(c)— 

17 ‘‘(A) to terminate the employment of an 

18 individual or take any adverse employment ac19 tion due to a tentative nonconfirmation issued 

20 by such System, with respect to that individual; 

21 ‘‘(B) to use the System for screening of an 

22 applicant for employment prior to making the 

23 individual an offer of employment; 

24 ‘‘(C) to use the System for the 

25 reverification of an employee after the employee 


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1 has satisfied the process described in (b)(1), 

2 unless otherwise required by Federal law. 

3 ‘‘(D) to use the System selectively to ex4 clude certain individuals from consideration for 

5 employment as a result of a perceived likelihood 

6 that additional verification will be required, be7 yond what is required for most job applicants; 

8 or 

9 ‘‘(E) to use the System to deny workers’ 

10 employment benefits or otherwise interfere with 

11 their labor rights, or to engage in any other un12 lawful employment practice.’’; 

13 (6) by inserting a new paragraph (8) as follows: 

14 ‘‘(8) BURDEN OF PROOF IN DISPARATE IMPACT

15 CASES.— 

16 ‘‘(A) An unlawful immigration-related em17 ployment practice or unfair labor practice case 

18 based on disparate impact is established under 

19 this general rule only if— 

20 ‘‘(i) a complaining party demonstrates 

21 that a respondent uses a particular em22 ployment practice that causes a disparate 

23 impact on the basis of national origin or 

24 citizenship status and the respondent fails 

25 to demonstrate that the challenged practice 


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1 is job related for the position in question 

2 and consistent with business necessity; or 

3 ‘‘(ii) the complaining party makes the 

4 demonstration with respect to an alter5 native employment practice and the re6 spondent refuses to adopt such an alter7 native employment practice. An alternative 

8 employment practice is defined as a policy 

9 that would satisfy the employer’s legiti10 mate interests without having a disparate 

11 impact on a protected class. 

12 ‘‘(B) With respect to demonstrating that a 

13 particular employment practice causes a dis14 parate impact as described in subparagraph 

15 (8)(A), the complaining party shall demonstrate 

16 that each particular challenged employment 

17 practice causes a disparate impact, except that 

18 if the complaining party can demonstrate to the 

19 court that the elements of a respondent’s deci20 sion-making process are not capable of separa21 tion for analysis, the decisionmaking process 

22 may be analyzed as one employment practice. 

23 ‘‘(C) If the respondent demonstrates that a 

24 specific employment practice does not cause the 

25 disparate impact, the respondent shall not be 


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1 required to demonstrate that such practice is 

2 required by business necessity. 

3 ‘‘(D) A demonstration that an employment 

4 practice is required by business necessity may 

5 not be used as a defense against a claim of in6 tentional discrimination under this statute.’’; 

7 and 

8 (7) by inserting a new paragraph (9) as follows: 

9 ‘‘(9) Except as otherwise provided in this sub10 chapter, an unlawful immigration-related unfair em11 ployment practice is established when the charging 

12 party demonstrates that citizenship status or na13 tional origin was a motivating factor for any employ14 ment practice, even though other factors also moti15 vated the practice.’’ 

16 (b) CHARGES AND COMPLAINTS.—Section 274B(d) 

17 (8 U.S.C. 1324b(d)) is amended— 

18 (1) in paragraph (1), by striking ‘‘within 120 

19 days of the date of the receipt of the charge’’ and 

20 ‘‘subject to paragraph (3)’’; 

21 (2) by striking ‘‘The Special Counsel’s failure 

22 to file such a complaint within such 120-day period 

23 shall not affect the right of the Special Counsel to 

24 investigate the charge or to bring a complaint before 

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1 riod.’’ and inserting at the end of paragraph (2) 

2 ‘‘Nothing contained in this Act shall relieve any Gov3 ernment agency or official of his or her responsibility 

4 for unlawful electronic employment verification prac5 tices.’’; 

6 (3) by striking paragraph (3). 

7 (c) INCREASE IN CIVIL MONEY PENALTIES.—Section 

8 274B(g)(2)(B)(iv) (8 U.S.C. 1324b(g)(2)(B)(iv)) is 

9 amended— 

10 (1) in subclause (I), by striking ‘‘$250 and not 

11 more than $1,000’’ and inserting ‘‘$2,000 and not 

12 more than $4,000’’; 

13 (2) in subclause (II), by striking ‘‘$2,000 and 

14 not more than $5,000’’ and inserting ‘‘$4,000 and 

15 not more than $10,000’’; 

16 (3) in subclause (III), by striking ‘‘$3,000 and 

17 not more than $10,000’’ and inserting ‘‘$6,000 and 

18 not more than $20,000’’; 

19 (4) in subclause (IV), by striking ‘‘$100 and 

20 not more than $1,000’’ and inserting ‘‘$500 and not 

21 more than $5,000.’’ 

22 (d) ORDERS FINDING VIOLATIONS.—Section 

23 274B(g) (8 U.S.C. 1324b(g)) is amended— 

24 (1) in paragraph (2)(B)(iii), by inserting ‘‘, and 

25 to provide such other relief as the administrative law 


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1 judge determines appropriate to make the individual 

2 whole’’ before the semicolon at the end; and 

3 (2) by inserting the following at the end of 

4 paragraph (2)(B)(viii): 

5 ‘‘(ix)(I) No order of the court shall re6 quire the admission or reinstatement of an 

7 individual as a member of a union, or the 

8 hiring, reinstatement, or promotion of an 

9 individual as an employee, or the payment 

10 to him of any back pay, if such individual 

11 was refused admission, suspended, or ex12 pelled, or was refused employment or ad13 vancement or was suspended or discharged 

14 for any reason other than discrimination 

15 on account of citizenship status or national 

16 origin or in violation of this section. 

17 ‘‘(II) On a claim in which an indi18 vidual proves a violation under subsection 

19 (a)(7) and a respondent demonstrates that 

20 the respondent would have taken the same 

21 action in the absence of the impermissible 

22 motivating factor, the court may grant de23 claratory relief, injunctive relief (except as 

24 provided in clause (b)), and attorney’s fees 

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1 tributable only to the pursuit of a claim 

2 under subsection (a)(7); and shall not 

3 award damages or issue an order requiring 

4 any admission, reinstatement, hiring, pro5 motion, or payment, described in subpara6 graph (I).’’; 

7 (3) by inserting at the end of paragraph (2) a 

8 new subparagraph (E) as follows: 

9 ‘‘(E) COMPENSATORY AND PUNITIVE DAM10 AGES.— 

11 ‘‘(i) DETERMINATION OF PUNITIVE

12 DAMAGES.—A complaining party may ac13 quire punitive damages against a respond14 ent (other than the federal government or 

15 a federal government agency) if the com16 plaining party demonstrates that the re17 spondent engaged in discriminatory prac18 tice or practices with malice or reckless in19 difference to the federally protected rights 

20 of an aggrieved individual under subsection 

21 (a)(1). 

22 ‘‘(ii) COMPENSATORY DAMAGES

23 AWARDED UNDER THIS SECTION.—Com24 pensatory damages awarded under this 

25 section shall not include backpay, interest 


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1 on backpay, or any other type of relief au2 thorized under subparagraphs (B) and (C) 

3 of subsection (g)(2). 

4 ‘‘(iii) LIMITATIONS.—The sum of 

5 compensatory damages awarded under this 

6 section for future pecuniary losses, emo7 tional pain, suffering, inconvenience, men8 tal anguish, loss of enjoyment of life, and 

9 other nonpecuniary losses on account of 

10 national origin discrimination shall not ex11 ceed $50,000 for each complaining party. 

12 In the case of citizenship status discrimi13 nation, the limitations should be as follows: 

14 ‘‘(I) In the case of a respondent 

15 who has more than 3 and fewer than 

16 101 employees in each of 20 or more 

17 calendar weeks in the current or pre18 ceding calendar year, $50,000. 

19 ‘‘(II) In the case of a respondent 

20 who has more than 100 and fewer 

21 than 201 employees in each of 20 or 

22 more calendar weeks in the current or 

23 preceding calendar year, $100,000. 

24 ‘‘(III) In the case of a respond25 ent who has more than 200 and fewer 


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1 than 501 employees in each of 20 or 

2 more calendar weeks in the current or 

3 preceding calendar year, $200,000. 

4 ‘‘(IV) In the case of a respondent 

5 who has more than 500 employees in 

6 each of 20 or more calendar weeks in 

7 the current or preceding calendar 

8 year, $300,000.’’. 

9 (e) DISSEMINATION OF INFORMATION.—Section 

10 274B is amended— 

11 (1) in subparagraph (l)(3), by striking 

12 ‘‘$10,000,000’’ and inserting ‘‘$50,000,000’’. 

13 (2) by adding at the end the following: 

14 ‘‘(m) REPORTS.—The Secretary of Homeland Secu15 rity shall make transactional data and citizenship status 

16 data available upon request by the Special Counsel (ap17 pointed under subsection (c) of this section).’’. 

18 (f) EFFECTIVE DATE.—The amendments made by 

19 this section shall take effect on the date of the enactment 

20 of this Act and shall apply to violations occurring on or 

21 after such date. 

22 SEC. 203. AMENDMENTS TO THE SOCIAL SECURITY ACT. 

23 (a) SOCIAL SECURITY ACT.—Section 205(c)(2) of the 

24 Social Security Act (42 U.S.C. 405(c)(2)) is amended by 

25 adding at the end the following new subparagraphs: 


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1 ‘‘(I)(i) The Commissioner of Social Secu2 rity shall, subject to the provisions of title III 

3 of the this Act, establish a reliable, secure 

4 method to provide through the employment 

5 verfication systems established pursuant to sec6 tion 274A of the Immigration and Nationality 

7 Act (referred to in this subparagraph as the 

8 ‘System’), within the time periods required by 

9 such section— 

10 ‘‘(I) a determination of whether the 

11 name, date of birth, employer identification 

12 number, and social security account num13 ber of an individual provided in an inquiry 

14 made to the System by an employer is con15 sistent with such information maintained 

16 by the Commissioner in order to confirm 

17 the validity of the information provided; 

18 ‘‘(II) a determination of the citizen19 ship status associated with such name and 

20 social security account number, according 

21 to the records maintained by the Commis22 sioner; 

23 ‘‘(III) a determination of whether the 

24 name and number belongs to an individual 


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1 who is deceased, according to the records 

2 maintained by the Commissioner; 

3 ‘‘(IV) a determination of whether the 

4 name and number is blocked in accordance 

5 with clause (ii); and 

6 ‘‘(V) a confirmation or a nonconfirma7 tion described in such subsection (c), in a 

8 manner that ensures that other informa9 tion maintained by the Commissioner is 

10 not disclosed or released to employers 

11 through the System. 

12 ‘‘(ii) The Commissioner of Social Security 

13 shall prevent the fraudulent or other misuse of 

14 a social security account number by establishing 

15 procedures under which an individual who has 

16 been assigned a social security account number 

17 may block the use of such number under the 

18 System and remove such block. 

19 ‘‘(J) In assigning social security account 

20 numbers to aliens who are authorized to work 

21 in the United States under section 218A of the 

22 Immigration and Nationality Act, the Commis23 sioner of Social Security shall, to the maximum 

24 extent practicable, assign such numbers by em25 ploying the enumeration procedure administered 


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1 jointly by the Commissioner, the Secretary of 

2 State, and the Secretary.’’. 

3 (b) AUTHORIZATION OF APPROPRIATIONS.— 

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

5 appropriated to the Secretary such sums as are nec6 essary to carry out the amendments made by this 

7 section. 

8 (2) LIMITATION ON VERIFICATION RESPON9 SIBILITIES OF COMMISSIONER OF SOCIAL SECU10 RITY.—The Commissioner of Social Security is au11 thorized to perform activities with respect to car12 rying out the Commissioner’s responsibilities in this 

13 title or the amendments made by this title, but only 

14 to the extent the Secretary has provided, in advance, 

15 funds to cover the Commissioner’s full costs in car16 rying out such responsibilities. In no case shall 

17 funds from the Federal Old-Age and Survivors In18 surance Trust Fund or the Federal Disability Insur19 ance Trust Fund be used to carry out such respon20 sibilities. 

21 (c) EFFECTIVE DATE.—The amendments made by 

22 this section shall take effect on the date that is 180 days 

23 after the date of the enactment of this Act. 


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1 TITLE III—VISA REFORMS 

2 SEC. 301. ELIMINATION OF EXISTING BACKLOGS. 

3 (a) WORLDWIDE LEVEL OF FAMILY-SPONSORED IM4 MIGRANTS.—Section 201(c) of the Immigration and Na5 tionality Act (8 U.S.C. 1151(c)) is amended to read as 

6 follows: 

7 ‘‘(c) WORLDWIDE LEVEL OF FAMILY-SPONSORED

8 IMMIGRANTS.— 

9 ‘‘(1) IN GENERAL.—Subject to subparagraph 

10 (B), the worldwide level of family-sponsored immi11 grants under this subsection for a fiscal year is 

12 equal to the sum of— 

13 ‘‘(A) 480,000; and 

14 ‘‘(B) the sum of— 

15 ‘‘(i) the number computed under 

16 paragraph (2); and 

17 ‘‘(ii) the number computed under 

18 paragraph (3). 

19 ‘‘(2) UNUSED VISA NUMBERS FROM PREVIOUS

20 FISCAL YEAR.—The number computed under this 

21 paragraph for a fiscal year is the difference, if any, 

22 between— 

23 ‘‘(A) the worldwide level of family-spon24 sored immigrant visas established for the pre25 vious fiscal year; and 


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1 ‘‘(B) the number of visas issued under sec2 tion 203(a), subject to this subsection, during 

3 the previous fiscal year. 

4 ‘‘(3) UNUSED VISA NUMBERS FROM FISCAL

5 YEARS 1992 THROUGH 2009.—The number computed 

6 under this paragraph is the difference, if any, be7 tween— 

8 ‘‘(A) the difference, if any, between— 

9 ‘‘(i) the sum of the worldwide levels of 

10 family-sponsored immigrant visas estab11 lished for each of fiscal years 1992 

12 through 2008; and 

13 ‘‘(ii) the number of visas issued under 

14 section 203(a), subject to this subsection, 

15 during such fiscal years; and 

16 ‘‘(B) the number of unused visas from fis17 cal years 1992 through 2008 that were issued 

18 after fiscal year 2007 under section 203(a), 

19 subject to this subsection.’’. 

20 (b) WORLDWIDE LEVEL OF EMPLOYMENT-BASED

21 IMMIGRANTS.—Section 201(d) of the Immigration and 

22 Nationality Act (8 U.S.C. 1151(d)) is amended to read 

23 as follows: 

24 ‘‘(d) WORLDWIDE LEVEL OF EMPLOYMENT-BASED

25 IMMIGRANTS.— 


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1 ‘‘(1) IN GENERAL.—The worldwide level of em2 ployment-based immigrants under this subsection for 

3 a fiscal year is equal to the sum of— 

4 ‘‘(A) 290,000; 

5 ‘‘(B) the number computed under para6 graph (2); and 

7 ‘‘(C) the number computed under para8 graph (3). 

9 ‘‘(2) UNUSED VISA NUMBERS FROM PREVIOUS

10 FISCAL YEAR.—The number computed under this 

11 paragraph for a fiscal year is the difference, if any, 

12 between— 

13 ‘‘(A) the worldwide level established under 

14 paragraph (1) for the previous fiscal year; and 

15 ‘‘(B) the number of visas actually issued 

16 under section 203(b), subject to this subsection, 

17 during the previous fiscal year. 

18 ‘‘(3) UNUSED VISA NUMBERS FROM FISCAL

19 YEARS 1992 THROUGH 2009.—The number computed 

20 under this paragraph is the difference, if any, be21 tween— 

22 ‘‘(A) the difference, if any, between— 

23 ‘‘(i) the sum of the worldwide levels 

24 established under paragraph (1) for fiscal 

25 years 1992 through 2009; and 


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1 ‘‘(ii) the number of visas actually 

2 issued under section 203(b), subject to this 

3 subsection, during such fiscal years; and 

4 ‘‘(B) the number of visas actually issued 

5 after fiscal year 2009 pursuant to an immi6 grant visa number issued under section 203(b), 

7 subject to this subsection, during fiscal years 

8 1992 through 2009.’’. 

9 (c) EXCEPTION TO NONDISCRIMINATION.—Section 

10 202(a)(1)(A) (8 U.S.C. 1152(a)(1)(A)) is amended by 

11 striking ‘‘201(b)(2)(A)(i)’’ and inserting ‘‘201(b)’’. 

12 (d) EFFECTIVE DATE.—The amendments made by 

13 this section shall take effect on the date which is 60 days 

14 after the date of the enactment of this Act. 

15 SEC. 302. RECLASSIFICATION OF SPOUSES AND MINOR 

16 CHILDREN OF LEGAL PERMANENT RESI17 DENTS AS IMMEDIATE RELATIVES. 

18 (a) IN GENERAL.—Section 201(b)(2) of the Immi19 gration and Nationality Act (8 U.S.C. 1151(b)(2)) is 

20 amended to read as follows: 

21 ‘‘(2) IMMEDIATE RELATIVE.— 

22 ‘‘(A) IN GENERAL.— 

23 ‘‘(i) IMMEDIATE RELATIVE DE24 FINED.—In this subparagraph, the term 

25 ‘immediate relative’ means a child, spouse, 


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1 or parent of a citizen of the United States 

2 or a child or spouse of a lawful permanent 

3 resident (and for each family member of a 

4 citizen or lawful permanent resident under 

5 this subparagraph, such individual’s spouse 

6 or child who is accompanying or following 

7 to join the individual), except that, in the 

8 case of parents, such citizens shall be at 

9 least 21 years of age. 

10 ‘‘(ii) PREVIOUSLY ISSUED VISA.— 

11 Aliens admitted under section 211(a) on 

12 the basis of a prior issuance of a visa 

13 under section 203(a) to their accom14 panying parent who is an immediate rel15 ative. 

16 ‘‘(iii) PARENTS AND CHILDREN.—An 

17 alien who was the child or the parent of a 

18 citizen of the United States or a child of 

19 a lawful permanent resident at the time of 

20 the citizen’s or resident’s death if the alien 

21 files a petition under section 

22 204(a)(1)(A)(ii) within 2 years after such 

23 date or prior to reaching 21 years of age. 

24 ‘‘(iv) SPOUSE.—In the case of an 

25 alien who was the spouse of a citizen of the 


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1 United States or spouse of a lawful perma2 nent resident and was not legally separated 

3 from the citizen or resident at the time of 

4 the citizen’s or resident’s death, the alien 

5 (and each child of the alien) shall be con6 sidered for purposes of this subsection, to 

7 remain an immediate relative after the 

8 date of the citizen’s or resident’s death if 

9 the spouse files a petition under section 

10 204(a)(1)(A)(ii) before the earlier of— 

11 ‘‘(I) 2 years after such date; or 

12 ‘‘(II) the date on which the 

13 spouse remarries. 

14 ‘‘(v) SPECIAL RULE.—For purposes of 

15 this subparagraph, an alien who has filed 

16 a petition under clause (iii) or (iv) of sec17 tion 204(a)(1)(A) remains an immediate 

18 relative if the United States citizen or law19 ful permanent resident spouse or parent 

20 loses United States citizenship or residence 

21 on account of the abuse. 

22 ‘‘(B) BIRTH DURING TEMPORARY VISIT

23 ABROAD.—Aliens born to an alien lawfully ad24 mitted for permanent residence during a tem25 porary visit abroad.’’. 


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1 (b) ALLOCATION OF IMMIGRANT VISAS.—Section 

2 203(a) of the Immigration and Nationality Act (8 U.S.C. 

3 1153(a)) is amended— 

4 (1) in paragraph (1), by striking ‘‘23,400’’ and 

5 inserting ‘‘38,000’’; 

6 (2) by striking paragraph (2) and inserting the 

7 following: 

8 ‘‘(2) UNMARRIED SONS AND UNMARRIED

9 DAUGHTERS OF PERMANENT RESIDENT ALIENS.— 

10 Qualified immigrants who are the unmarried sons or 

11 unmarried daughters (but are not the children) of 

12 an alien lawfully admitted for permanent residence 

13 shall be allocated visas in a number not to exceed 

14 60,000, plus any visas not required for the class 

15 specified in paragraph (1).’’; 

16 (3) in paragraph (3), by striking ‘‘23,400’’ and 

17 inserting ‘‘38,000’’; and 

18 (4) in paragraph (4), by striking ‘‘65,000’’ and 

19 inserting ‘‘90,000’’. 

20 (c) TECHNICAL AND CONFORMING AMENDMENTS.— 

21 (1) RULES FOR DETERMINING WHETHER CER22 TAIN ALIENS ARE IMMEDIATE RELATIVES.—Section 

23 201(f) of the Immigration and Nationality Act (8 

24 U.S.C. 1151(f)) is amended— 


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1 (A) in paragraph (1), by striking ‘‘para2 graphs (2) and (3),’’ and inserting ‘‘paragraph 

3 (2),’’; 

4 (B) by striking paragraph (2); 

5 (C) by redesignating paragraphs (3) and 

6 (4) as paragraphs (2) and (3), respectively; and 

7 (D) in paragraph (3), as redesignated by 

8 subparagraph (C), by striking ‘‘through (3)’’ 

9 and inserting ‘‘and (2)’’. 

10 (2) NUMERICAL LIMITATION TO ANY SINGLE

11 FOREIGN STATE.—Section 202 of the Immigration 

12 and Nationality Act (8 U.S.C. 1152) is amended— 

13 (A) in subsection (a)(4)— 

14 (i) by striking subparagraphs (A) and 

15 (B); 

16 (ii) by redesignating subparagraphs 

17 (C) and (D) as subparagraphs (A) and 

18 (B), respectively; and 

19 (iii) in subparagraph (A), as redesig20 nated by clause (ii) of this paragraph, by 

21 striking ‘‘section 203(a)(2)(B)’’ and insert22 ing ‘‘section 203(a)(2)’’; and 

23 (B) in subsection (e), in the flush matter 

24 following paragraph (3), by striking ‘‘, or as 

25 limiting the number of visas that may be issued 


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1 under section 203(a)(2)(A) pursuant to sub2 section (a)(4)(A)’’. 

3 (3) ALLOCATION OF IMMIGRATION VISAS.—Sec4 tion 203(h) of the Immigration and Nationality Act 

5 (8 U.S.C. 1153(h)) is amended— 

6 (A) in paragraph (1)— 

7 (i) in the matter preceding subpara8 graph (A), by striking ‘‘subsections 

9 (a)(2)(A) and (d)’’ and inserting ‘‘sub10 section (d)’’; 

11 (ii) in subparagraph (A), by striking 

12 ‘‘becomes available for such alien (or, in 

13 the case of subsection (d), the date on 

14 which an immigrant visa number became 

15 available for the alien’s parent),’’ and in16 serting ‘‘became available for the alien’s 

17 parent,’’; and 

18 (iii) in subparagraph (B), by striking 

19 ‘‘applicable’’; 

20 (B) by amending paragraph (2) to read as 

21 follows: 

22 ‘‘(2) PETITIONS DESCRIBED.—The petition de23 scribed in this paragraph is a petition filed under 

24 section 204 for classification of the alien’s parent 


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1 under subsection (a), (b), or (c) of this section.’’; 

2 and 

3 (C) in paragraph (3), by striking ‘‘sub4 sections (a)(2)(A) and (d)’’ and inserting ‘‘sub5 section (d)’’. 

6 (4) PROCEDURE FOR GRANTING IMMIGRANT

7 STATUS.—Section 204 of the Immigration and Na8 tionality Act (8 U.S.C. 1154) is amended— 

9 (A) in subsection (a)(1)— 

10 (i) in subparagraph (A)— 

11 (I) in clause (i), by inserting ‘‘or 

12 lawful permanent resident’’ after ‘‘cit13 izen’’; 

14 (II) in clause (ii), by striking 

15 ‘‘described in the second sentence of 

16 section 201(b)(2)(A)(i) also’’ and in17 serting ‘‘, alien child, or alien parent 

18 described in section 201(b)(2)(A)’’; 

19 (III) in clause (iii)— 

20 (aa) in subclause (I)(aa), by 

21 inserting ‘‘or legal permanent 

22 resident’’ after ‘‘citizen’’; and 

23 (bb) in subclause (II)(aa)— 

24 (AA) in subitems (AA) 

25 and (BB), by inserting ‘‘or 


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1 legal permanent resident;’’ 

2 after ‘‘citizen’’ each place 

3 that term appears; 

4 (BB) in subitem (CC), 

5 by inserting ‘‘or legal per6 manent resident’’ after ‘‘cit7 izen’’ each place that term 

8 appears; and 

9 (CC) in subitem 

10 (CC)(bbb), by inserting ‘‘or 

11 legal permanent resident’’ 

12 after ‘‘citizenship’’; 

13 (IV) in clause (iv), by inserting 

14 ‘‘or legal permanent resident’’ after 

15 ‘‘citizen’’ each place that term ap16 pears; 

17 (V) in clause (v)(I), by inserting 

18 ‘‘or legal permanent resident’’ after 

19 ‘‘citizen’’; and 

20 (VI) in clause (vi)— 

21 (aa) by inserting ‘‘or legal 

22 permanent resident status’’ after 

23 ‘‘renunciation of citizenship’’; 

24 and 


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1 (bb) by inserting ‘‘or legal 

2 permanent resident’’ after ‘‘abus3 er’s citizenship’’; 

4 (ii) by striking subparagraph (B); 

5 (iii) in subparagraph (C), by striking 

6 ‘‘subparagraph (A)(iii), (A)(iv), (B)(ii), or 

7 (B)(iii)’’ and inserting ‘‘clause (iii) or (iv) 

8 of subparagraph (A)’’; and 

9 (iv) in subparagraph (J), by striking 

10 ‘‘or clause (ii) or (iii) of subparagraph 

11 (B)’’; 

12 (B) in subsection (a), by striking para13 graph (2); 

14 (C) in subsection (c)(1), by striking ‘‘or 

15 preference status’’; and 

16 (D) in subsection (h), by striking ‘‘or a pe17 tition filed under subsection (a)(1)(B)(ii)’’. 

18 SEC. 303. COUNTRY LIMITS. 

19 Section 202(a) of the Immigration and Nationality 

20 Act (8 U.S.C. 1152(a)) is amended— 

21 (1) in paragraph (2)— 

22 (A) by striking ‘‘, (4), and (5)’’ and insert23 ing ‘‘and (4)’’; 

24 (B) by striking ‘‘subsections (a) and (b) of 

25 section 203’’ and inserting ‘‘section 203(a)’’; 


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1 (C) by striking ‘‘7 percent (in the case of 

2 a single foreign state) or 2 percent’’ and insert3 ing ‘‘10 percent (in the case of a single foreign 

4 state) or 5 percent’’; and 

5 (D) by striking ‘‘such subsections’’ and in6 serting ‘‘such section’’; and 

7 (2) by striking paragraph (5). 

8 SEC. 304. PROMOTING FAMILY UNITY. 

9 (a) WAIVERS OF INADMISSIBILITY.—Section 

10 212(a)(9) of the Immigration and Nationality Act (8 

11 U.S.C. 1182(a)(9)) is amended— 

12 (1) in subparagraph (B)— 

13 (A) in clause (iii)— 

14 (i) in subclause (I), by striking ‘‘18 

15 years of age’’ and inserting ‘‘21 years of 

16 age’’; 

17 (ii) by moving subclause (V) 4 ems to 

18 the right; and 

19 (iii) by adding at the end the fol20 lowing: 

21 ‘‘(VI) Clause (i) shall not apply 

22 to an alien for whom an immigrant 

23 visa is available or was available on or 

24 before the date of the enactment of 

25 the CIR ASAP Act of 2009, and is 


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1 otherwise admissible to the United 

2 States for permanent residence; and’’; 

3 (B) in clause (v)— 

4 (i) by striking ‘‘spouse or son or 

5 daughter’’ and inserting ‘‘spouse, son, 

6 daughter, or parent’’; 

7 (ii) by striking ‘‘extreme’’; 

8 (iii) by inserting ‘‘, son, daughter,’’ 

9 after ‘‘lawfully resident spouse’’; and 

10 (iv) by striking ‘‘alien.’’ and inserting 

11 ‘‘alien or, if the Attorney General deter12 mines that a waiver is necessary for hu13 manitarian purposes, to ensure family 

14 unity or is otherwise in the public inter15 est.’’; and 

16 (2) in subparagraph (C), by amending clause 

17 (ii) to read as follows: 

18 ‘‘(ii) EXCEPTIONS.—Clause (i) shall 

19 not apply to an alien— 

20 ‘‘(I) seeking admission more than 

21 10 years after the date of the alien’s 

22 last departure from the United States 

23 if, prior to the alien’s reembarkation 

24 at a place outside the United States 

25 or attempt to be readmitted from a 


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1 foreign contiguous territory, the Sec2 retary of Homeland Security has con3 sented to the alien’s reapplication for 

4 admission; or 

5 ‘‘(II) for whom an immigrant 

6 visa is available or was available on or 

7 before the date of the enactment of 

8 this Act, and is otherwise admissible 

9 to the United States for permanent 

10 residence.’’. 

11 (b) FALSE CLAIMS AND MISREPRESENTATIONS.— 

12 The Immigration and Nationality Act (8 U.S.C. 1101, et 

13 seq.) is amended— 

14 (1) in section 237(a)(3)(D) (8 U.S.C. 

15 1227(a)(3)(D)), by inserting ‘‘and willfully’’ after 

16 ‘‘falsely’’ each place such term appears; 

17 (2) in section 212(a)(6)(C)(ii) (8 U.S.C. 

18 1182(a)(6)(C)(ii)), by inserting ‘‘and willfully’’ after 

19 ‘‘falsely’’ each place such term appears; 

20 (3) in section 212(a)(6)(C)(iii) (8 U.S.C. 

21 1182(a)(6)(C)(iii)), by striking ‘‘of clause (i)’’; and 

22 (4) by amending section 212(i)(1) (8 U.S.C. 

23 1182(i)(1)) to read as follows: 

24 ‘‘(1) The Attorney General or the Secretary of 

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1 torney General or the Secretary, waive the applica2 tion of subsection (a)(6)(C) in the case of an immi3 grant who is the parent, spouse, son, or daughter of 

4 a United States citizen or of an alien lawfully admit5 ted for permanent residence, or an alien granted 

6 classification under clause (iii) or (iv) of section 

7 204(a)(1)(A), if it is established to the satisfaction 

8 of the Attorney General or the Secretary that the 

9 admission to the United States of such alien would 

10 not be contrary to the national welfare, safety, or se11 curity of the United States.’’. 

12 SEC. 305. SURVIVING RELATIVES. 

13 (a) CONTINUED WAIVER ELIGIBILITY FOR WIDOWS, 

14 WIDOWERS AND ORPHANS.—Section 212(a)(2)(F) is 

15 amended to read as follows: 

16 ‘‘(F) CONTINUED WAIVER ELIGIBILITY

17 FOR WIDOWS, WIDOWERS AND ORPHANS.—In 

18 the case of an alien who would have been statu19 torily eligible for a waiver of inadmissibility 

20 under the Immigration and Nationality Act but 

21 for the death of the qualifying relative, the alien 

22 may be considered for any waiver under the Im23 migration and Nationality Act notwithstanding 

24 the death of the qualifying relative upon a 

25 showing of hardship to the alien or a family 


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1 member, or that the granting of the waiver is 

2 in the public interest.’’. 

3 (b) NATURALIZATION OF SURVIVING RELATIVES.— 

4 Section 319(a) of the Immigration and Nationality Act (8 

5 U.S.C. 1430(a)) is amended by inserting ‘‘(or, if the 

6 spouse is deceased, the spouse was a citizen of the United 

7 States)’’ after ‘‘citizen of the United States’’. 

8 (c) PROTECTION FOR THE SURVIVING RELATIVES OF

9 REFUGEES AND ASYLEES.—An alien described in section 

10 204(l)(2)(D) of the Immigration and Nationality Act may 

11 have such petition described in paragraph (2) of section 

12 204(l) or an application for adjustment of status to that 

13 of a person admitted for lawful permanent residence based 

14 upon the family relationship described in such paragraph, 

15 and any related applications, adjudicated notwithstanding 

16 the death of the qualifying relative, regardless of whether 

17 the alien is present inside or outside the United States 

18 at the time of the qualifying relative’s death or after the 

19 qualifying relative’s death. 

20 SEC. 306. EXTENSION OF WAIVER AUTHORITY. 

21 Section 217(c)(8)(A)(iii) of the Immigration and Na22 tionality Act (8 U.S.C. 1187(c)(8)(A)(iii)) is amended— 

23 (1) by striking ‘‘June 30, 2009’’ and inserting 

24 ‘‘June 30, 2011’’; and 


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1 (2) by striking ‘‘July 1, 2009’’ and inserting 

2 ‘‘July 1, 2011’’. 

3 SEC. 307. DISCRETIONARY WAIVER FOR LONG-TERM LAW4 FUL PERMANENT RESIDENTS. 

5 Section 240A(a) is amended by inserting after para6 graph (3) the following: 

7 ‘‘The Attorney General may waive the application of sub8 paragraph (C) to an individual only if the individual’s con9 viction resulted in a sentence served of two years or less 

10 and the Attorney General determines in his or her sole 

11 discretion that the individual does not pose a danger to 

12 the community or a national security threat and that sub13 paragraph (C) should be waived for compelling reasons 

14 such as to preserve family unity or because removal is oth15 erwise not in the public interest.’’. 

16 SEC. 308. CONTINUOUS PRESENCE. 

17 Section 240A(d) of the Immigration and Nationality 

18 Act (8 U.S.C. 1229b(d)) is amended by striking para19 graph (1). 

20 SEC. 309. BAR ON THE REMOVAL OF CERTAIN REFUGEES, 

21 PAROLEES OR ASYLEES. 

22 (a) IN GENERAL.—Chapter 4 of title II of the Immi23 gration and Nationality Act is amended by inserting after 

24 section 237 the following new section: 


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1 ‘‘SEC. 237A. BAR ON REMOVAL OF CERTAIN REFUGEES, PA2 ROLEES OR ASYLEES. 

3 ‘‘ ‘No individual who fled their homeland for fear of 

4 persecution while under the age of 12 years and was later 

5 admitted to the United States as a refugee or parolee or 

6 was granted asylum in the United States shall be removed 

7 from the United States.’ ’’. 

8 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

9 The table of sections for the Immigration and Nationality 

10 Act is amended by inserting after the item relating to sec11 tion 237 the following new item: 

‘‘Sec. 237A. Bar on removal of certain refugees, parolees or asylees.’’. 

12 SEC. 310. EXEMPTION FROM IMMIGRANT VISA LIMIT FOR 

13 CERTAIN VETERANS WHO ARE NATIVES OF 

14 PHILIPPINES. 

15 Section 201(b)(1) of the Immigration and Nationality 

16 Act (8 U.S.C. 1151(b)(1)) is amended by adding at the 

17 end the following: 

18 ‘‘(F) Aliens who are eligible for an immi19 grant visa under paragraph (1) or (3) of section 

20 203(a) and who have a parent who was natural21 ized pursuant to section 405 of the Immigration 

22 Act of 1990 (8 U.S.C. 1440 note).’’. 

23 SEC. 311. FIANCE ́ E OR FIANCE ́ CHILD STATUS PROTECTION. 

24 (a) DEFINITION.—Section 101(a)(15)(K)(iii) of the 

25 Immigration and Nationality Act (8 U.S.C. 


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1 1101(a)(15)(K)(iii)) is amended by inserting before the 

2 semicolon at the end the following: ‘‘if a determination of 

3 the age of such minor child is made using the age of the 

4 alien on the date on which the petition is filed with the 

5 Secretary of Homeland Security to classify the alien’s par6 ent as the fiance ́e or fiance ́ of a United States citizen (in 

7 the case of an alien parent described in clause (i)) or as 

8 the spouse of a United States citizen under section 

9 201(b)(2)(A)(i) (in the case of an alien parent described 

10 in clause (ii))’’. 

11 (b) ADJUSTMENT OF STATUS AUTHORIZED.—Section 

12 214(d) of the Immigration and Nationality Act (8 U.S.C. 

13 1184(d)) is amended— 

14 (1) by redesignating paragraphs (2) and (3) as 

15 paragraphs (3) and (4), respectively; 

16 (2) in paragraph (1), by striking the last sen17 tence; and 

18 (3) by inserting after paragraph (1) the fol19 lowing: 

20 ‘‘(2)(A) If an alien does not marry the peti21 tioner under paragraph (1) within 3 months after 

22 the alien and the alien’s minor children are admitted 

23 into the United States, such alien and children shall 

24 be required to depart from the United States. If 

25 such aliens fail to depart from the United States, 


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1 they shall be removed in accordance with sections 

2 240 and 241. 

3 ‘‘(B) Subject to subparagraphs (C) and (D), if 

4 an alien marries the petitioner described in section 

5 101(a)(15)(K)(i) within 3 months after the alien is 

6 admitted into the United States, the Secretary of 

7 Homeland Security or the Attorney General, subject 

8 to the provisions of section 245(d), may adjust the 

9 status of the alien, and any minor children accom10 panying or following to join the alien, to that of an 

11 alien lawfully admitted for permanent residence on 

12 a conditional basis under section 216 if the alien 

13 and any such minor children apply for such adjust14 ment and are not determined to be inadmissible to 

15 the United States. 

16 ‘‘(C) Paragraphs (5) and (7)(A) of section 

17 212(a) shall not apply to an alien who is eligible to 

18 apply for adjustment of his or her status to an alien 

19 lawfully admitted for permanent residence under this 

20 section. 

21 ‘‘(D) An alien eligible for a waiver of inadmis22 sibility as otherwise authorized under this Act shall 

23 be permitted to apply for adjustment of his or her 

24 status to that of an alien lawfully admitted for per25 manent residence under this section.’’. 


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1 (c) AGE DETERMINATION.—Section 245(d) of the 

2 Immigration and Nationality Act (8 U.S.C. 1155(d)) is 

3 amended— 

4 (1) by striking ‘‘(d) The Attorney General’’ in5 serting the following: 

6 ‘‘(d)(1) The Attorney General’’; and 

7 (2) by adding at the end the following: 

8 ‘‘(2) A determination of the age of an alien ad9 mitted to the United States under section 

10 101(a)(15)(K)(iii) shall be made, for purposes of ad11 justment to the status of an alien lawfully admitted 

12 for permanent residence on a conditional basis under 

13 section 216, using the age of the alien on the date 

14 on which the petition is filed with the Secretary of 

15 Homeland Security to classify the alien’s parent as 

16 the fiance ́e or fiance ́ of a United States citizen (in 

17 the case of an alien parent admitted to the United 

18 States under section 101(a)(15)(K)(i)) or as the 

19 spouse of a United States citizen under section 

20 201(b)(2)(A)(i) (in the case of an alien parent ad21 mitted to the United States under section 

22 101(a)(15)(K)(ii)).’’. 

23 (d) EFFECTIVE DATE.— 

24 (1) IN GENERAL.—The amendments made by 

25 this section shall be effective as if included in the 


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1 Immigration Marriage Fraud Amendments of 1986 

2 (Public Law 99–639). 

3 (2) APPLICABILITY.—The amendments made 

4 by this section shall apply to all petitions or applica5 tions described in such amendments that— 

6 (A) are pending as of the date of the en7 actment of this Act; or 

8 (B) have been denied, but would have been 

9 approved if such amendments had been in effect 

10 at the time of adjudication of the petition or 

11 application. 

12 (3) MOTION TO REOPEN OR RECONSIDER.—A 

13 motion to reopen or reconsider a petition or applica14 tion described in paragraph (2)(B) shall be granted 

15 if such motion is filed with the Secretary of Home16 land Security or the Attorney General not later than 

17 2 years after the date of the enactment of this Act 

18 and the Secretary shall use parole authority to per19 mit an alien outside the United States to pursue a 

20 petition or application that has been reopened. 

21 SEC. 312. EQUAL TREATMENT FOR ALL STEPCHILDREN. 

22 Section 101(b)(1)(B) of the Immigration and Nation23 ality Act (8 U.S.C. 1101(b)(1)(B)) is amended by striking 

24 ‘‘, provided the child had not reached the age of eighteen 


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1 years at the time the marriage creating the status of step2 child occurred’’. 

3 SEC. 313. SONS AND DAUGHTERS OF FILIPINO WORLD WAR 

4 II VETERANS. 

5 Section 201(b)(1) (8 U.S.C. 1151(b)(1)), as amended 

6 by section 310 of this Act, is further amended by adding 

7 at the end the following: 

8 ‘‘(G) Aliens who are eligible for a visa 

9 under paragraph (1) or (3) of section 203(a) 

10 and are the son or daughter of a citizen of the 

11 United States who was naturalized pursuant to 

12 section 405 of the Immigration Act of 1990 (8 

13 U.S.C. 1440 note).’’. 

14 SEC. 314. DETERMINATIONS UNDER THE HAITIAN REFUGEE 

15 IMMIGRATION FAIRNESS ACT OF 1998. 

16 (a) IN GENERAL.—Section 902(d) of the Haitian 

17 Refugee Immigration Fairness Act of 1998 (8 U.S.C. 

18 1255 note) is amended by adding at the end the following: 

19 ‘‘(3) DETERMINATIONS WITH RESPECT TO

20 CHILDREN.— 

21 ‘‘(A) USE OF APPLICATION FILING

22 DATE.—Determinations made under this sub23 section as to whether an individual is a child of 

24 a parent shall be made using the age and status 

25 of the individual on October 21, 1998. 


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1 ‘‘(B) APPLICATION SUBMISSION BY PAR2 ENT.—Notwithstanding paragraph (1)(C), an 

3 application under this subsection filed based on 

4 status as a child may be filed for the benefit of 

5 such child by a parent or guardian of the child, 

6 if the child is physically present in the United 

7 States on such filing date.’’. 

8 (b) NEW APPLICATIONS AND MOTIONS TO RE9 OPEN.— 

10 (1) NEW APPLICATIONS.—Notwithstanding sec11 tion 902(a)(1)(A) of the Haitian Refugee Immigra12 tion Fairness Act of 1998, an alien who is eligible 

13 for adjustment of status under such Act may submit 

14 an application for adjustment of status under such 

15 Act not later than the later of— 

16 (A) 2 years after the date of the enactment 

17 of this Act; or 

18 (B) 1 year after the date on which final 

19 regulations are promulgated to implement this 

20 section and the amendment made by subsection 

21 (a). 

22 (2) MOTIONS TO REOPEN.—The Secretary shall 

23 establish procedures for the reopening and reconsid24 eration of applications for adjustment of status 

25 under the Haitian Refugee Immigration Fairness 


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1 Act of 1998 that are affected by the amendment 

2 made by subsection (a). 

3 (3) RELATIONSHIP OF APPLICATION TO CER4 TAIN ORDERS.—Section 902(a)(3) of the Haitian 

5 Refugee Immigration Fairness Act of 1998 shall 

6 apply to an alien present in the United States who 

7 has been ordered excluded, deported, removed, or or8 dered to depart voluntarily, and who files an applica9 tion under paragraph (1) or a motion under para10 graph (2), in the same manner as such section 

11 902(a)(3) applied to aliens filing applications for ad12 justment of status under such Act prior to April 1, 

13 2000. 

14 (c) INADMISSIBILITY DETERMINATION.—Section 902 

15 of the Haitian Refugee Immigration Fairness Act of 1998 

16 (8 U.S.C. 1255 note) is amended— 

17 (1) in subsection (a)(1)(B), by inserting 

18 ‘‘(6)(C)(i),’’ after ‘‘(6)(A),’’; and 

19 (2) in subsection (d)(1)(D), by inserting 

20 ‘‘(6)(C)(i),’’ after ‘‘(6)(A),’’. 

21 SEC. 315. DISCRETIONARY AUTHORITY. 

22 Section 240(c)(4) of the Immigration and Nationality 

23 Act (8 U.S.C. 1229a(c)(4)) is amended by adding at the 

24 end the following: 


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1 ‘‘(D) DISCRETION OF JUDGE IN CASE OF

2 CITIZEN CHILD.—In the case of an alien subject 

3 to removal, deportation, or exclusion who is the 

4 parent of a child who is a citizen of the United 

5 States, the immigration judge may exercise dis6 cretion to decline to order the alien removed, 

7 deported, or excluded from the United States if 

8 the judge determines that such removal, depor9 tation, or exclusion is clearly against the best 

10 interests of the child, except that this subpara11 graph shall not apply to any alien who the 

12 judge determines— 

13 ‘‘(i) is described in section 212(a)(3) 

14 or 237(a)(4); or 

15 ‘‘(ii) has engaged in conduct described 

16 in paragraph (8) or (9) of section 103 of 

17 the Trafficking Victims Protection Act of 

18 2000 (22 U.S.C. 7102).’’. 

19 SEC. 316. AFFIDAVIT OF SUPPORT. 

20 Section 213A of the Immigration and Nationality Act 

21 (8 U.S.C. 1183a) is amended— 

22 (1) in subsection (a)(1)(A) by striking ‘‘125’’ 

23 and inserting ‘‘100’’; 

24 (2) in subsection (f)(1)(E), by striking ‘‘125’’ 

25 and inserting ‘‘100’’; 


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1 (3) in subsection (f)(4)(B)(i), by striking ‘‘125’’ 

2 and inserting ‘‘100’’; and 

3 (4) in subsection (f)(5)(A), by striking ‘‘125’’ 

4 and inserting ‘‘100’’. 

5 SEC. 317. VISA TO PREVENT UNAUTHORIZED MIGRATION. 

6 (a) WORLDWIDE LEVEL OF TRANSITIONAL VISAS.— 

7 Section 201 of the Immigration and Nationality Act (8 

8 U.S.C. 1152) is amended by adding at the end the fol9 lowing: 

10 ‘‘(g) WORLDWIDE LEVEL OF PUM IMMIGRANTS.— 

11 The worldwide level of PUM immigrants is equal to 

12 100,000 for each fiscal year the PUM visa is authorized.’’. 

13 (b) TRANSITION TO SAFE AND LEGAL IMMIGRA14 TION.—Section 203 of the Immigration and Nationality 

15 Act is amended by adding at the end the following: 

16 ‘‘(i) PREVENT UNAUTHORIZED MIGRATION (PUM) 

17 TRANSITIONAL VISA.— 

18 ‘‘(1) IN GENERAL.—Except as provided in para19 graph (2), aliens subject to the worldwide level speci20 fied in section 201(g) for PUM immigrants shall be 

21 allotted visas during the first three fiscal years fol22 lowing 6 months after enactment of the CIR ASAP 

23 Act of 2009 as follows: 

24 ‘‘(A) DETERMINATION OF ADMISSION

25 STATES.—The Secretary shall determine for the 


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1 most recent previous 5-fiscal year period for 

2 which data are available— 

3 ‘‘(i) each country (in this paragraph 

4 referred to as a ‘transitional visa admis5 sion state’) whose nationals represented 

6 not less than 5 percent of the total number 

7 of unauthorized immigrants to the United 

8 States during the 5-fiscal year period; and 

9 ‘‘(ii) the percentage of unauthorized 

10 immigrants that nationals of each transi11 tional visa admission state represented of 

12 the total number of unauthorized immi13 grants to all transitional visa admission 

14 states during the 5-year period. 

15 ‘‘(B) DISTRIBUTION OF VISAS.— 

16 ‘‘(i) FOR A TRANSITIONAL VISA AD17 MISSION STATE.—Subject to clause (ii), 

18 the percentage of immigrant visas made 

19 available under this paragraph to nationals 

20 of any single transitional visa admission 

21 state shall not exceed the percentage deter22 mined for that transitional visa admission 

23 state in subparagraph (A)(ii). 

24 ‘‘(ii) REDISTRIBUTION OF UNUSED

25 VISA NUMBERS.—If the Secretary of State 


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1 estimates that the number of immigrant 

2 visas to be issued to nationals in any state 

3 for a fiscal year under this paragraph is 

4 less than the number of immigrant visas 

5 made available to such nationals under this 

6 paragraph for the fiscal year, the excess 

7 visa numbers shall be made available to 

8 nationals of the other states in proportion 

9 to the percentages otherwise specified in 

10 subparagraph (A)(ii). 

11 ‘‘(2) ELIGIBILITY.—An alien is not eligible for 

12 a visa under this subsection unless the alien— 

13 ‘‘(A) at the time of application for such a 

14 visa, is not present in the United States and is 

15 not entitled to an immigrant status under any 

16 other provision of the Immigration and Nation17 ality Act; 

18 ‘‘(B) has no other employment-based or 

19 family-based visa application pending; 

20 ‘‘(C) submits to a security and law en21 forcement background check, according to pro22 cedures established by the Secretary; and 

23 ‘‘(D) with regard to education, has com24 pleted less than a 4-year college degree pro25 gram. 


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1 ‘‘(3) REQUIREMENT WITH REGARD TO PARTICI2 PATION IN DATA COLLECTION AND STUDY.—Transi3 tional visa holders shall be required to participate in 

4 data collection and study as described in section 

5 501(b)(1)(G) of this Act that the Labor Commission 

6 deems necessary or helpful to fulfill its purpose and 

7 mission. 

8 ‘‘(4) MAINTENANCE OF INFORMATION.—The 

9 Secretary of State shall maintain information on the 

10 age, occupation, education level, and other relevant 

11 characteristics of immigrants issued visas under this 

12 subsection and share such information to the Labor 

13 Commission in Title V of this Act as needed. 

14 ‘‘(5) ORDER OF CONSIDERATION.—Immigrant 

15 visas made available each fiscal year under this sub16 section shall be issued to eligible qualified immi17 grants in a random order established by the Sec18 retary of State.’’. 

19 SEC. 318. ADJUSTMENT OF STATUS. 

20 (a) CONDITIONAL PERMANENT RESIDENT STA21 TUS.— 

22 (1) IN GENERAL.— 

23 (A) CONDITIONAL BASIS FOR STATUS.— 

24 Notwithstanding any other provision of law, an 

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1 section (b) to that of an alien lawfully admitted 

2 for permanent residence shall be considered to 

3 have obtained such status on a conditional basis 

4 subject to the provisions of this paragraph. 

5 Such conditional permanent resident status 

6 shall be valid for a period of 3 years, subject to 

7 termination under paragraph (2). 

8 (B) NOTICE OF REQUIREMENTS.—At the 

9 time an alien obtains permanent resident status 

10 on a conditional basis under subsection (b), the 

11 Secretary of Homeland Security shall provide 

12 notice to the alien regarding the provisions of 

13 this section and the requirements of paragraph 

14 (3) to have the conditional basis of such status 

15 removed. 

16 (2) TERMINATION OF STATUS.— 

17 (A) IN GENERAL.—The Secretary shall ter18 minate the conditional permanent resident sta19 tus of any alien who obtained such status under 

20 this Act, if the Secretary determines that the 

21 alien ceases to meet the requirements of sub22 section (b)(1). 

23 (B) RETURN TO COUNTRY OF ORIGIN.— 

24 Any alien whose conditional permanent resident 

25 status is terminated under subparagraph (A) 


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1 shall be required to return to their country of 

2 origin. 

3 (3) REQUIREMENTS OF TIMELY PETITION FOR

4 REMOVAL OF CONDITION.— 

5 (A) IN GENERAL.—In order for the condi6 tional basis of the permanent resident status 

7 obtained by an alien under subsection (b) to be 

8 removed, the alien must file with the Secretary 

9 of Homeland Security, in accordance with para10 graph (4), a petition which requests the re11 moval of such conditional basis and which pro12 vides, under penalty of perjury, the facts and 

13 information so that the Secretary may make the 

14 determination described in subparagraph (B)(i). 

15 (B) ADJUDICATION OF PETITION TO RE16 MOVE CONDITION.— 

17 (i) IN GENERAL.—If a petition is filed 

18 in accordance with clause (A) for an alien, 

19 the Secretary shall make a determination 

20 as to whether the alien meets the require21 ments set out in subparagraphs (A) and 

22 (B) of paragraph (4). 

23 (ii) REMOVAL OF CONDITIONAL BASIS

24 IF FAVORABLE DETERMINATION.—If the 

25 Secretary determines that the alien meets 


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1 such requirements, the Secretary shall no2 tify the alien of such determination and 

3 immediately remove the conditional basis 

4 of the status of the alien. 

5 (iii) TERMINATION OF CONDITIONAL

6 STATUS IF UNFAVORABLE DETERMINA7 TION.—If the Secretary determines that 

8 the alien does not meet such requirements, 

9 the Secretary shall notify the alien of such 

10 determination and terminate conditional 

11 permanent resident status of the alien as 

12 of the date of the determination. 

13 (C) TIME TO FILE PETITION.—An alien 

14 may petition to remove the conditional basis of 

15 lawful resident status during the period begin16 ning 90 days before and ending 180 days after 

17 either the date that is 3 years after the date of 

18 granting conditional permanent resident status 

19 or any other expiration date of the conditional 

20 permanent resident status provided by the Sec21 retary in accordance with this Act. The alien 

22 shall be deemed in conditional permanent resi23 dent status in the United States during the pe24 riod in which the petition is pending. 

25 (4) DETAILS OF PETITION.— 


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1 (A) CONTENTS OF PETITION.—Each peti2 tion for an alien under paragraph (3)(A) shall 

3 contain information to permit the Secretary to 

4 determine whether each of the following re5 quirements is met: 

6 (i) The alien has demonstrated good 

7 moral character during the entire period 

8 the alien has been a conditional permanent 

9 resident. 

10 (ii) The alien is in compliance with 

11 subsection (b)(1). 

12 (iii) The alien has not abandoned the 

13 alien’s residence in the United States. The 

14 Secretary shall presume that the alien has 

15 abandoned such residence if the alien is 

16 absent from the United States for more 

17 than 365 days, in the aggregate, during 

18 the period of conditional residence, unless 

19 the alien demonstrates that the alien has 

20 not abandoned the alien’s residence. An 

21 alien who is absent from the United States 

22 due to active service in the uniformed serv23 ices has not abandoned the alien’s resi24 dence in the United States during the pe25 riod of such service. 


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1 (iv) The alien has satisfied all Federal 

2 income tax liabilities and is in good stand3 ing with the Internal Revenue Service as 

4 described in (B) of this paragraph. 

5 (v) where applicable, can establish 

6 proof of registration under the Military Se7 lective Service Act (50 U.S.C. App. 451 et 

8 seq.). 

9 (B) PAYMENT OF INCOME TAXES.— 

10 (i) IN GENERAL.—Not later than the 

11 date on which status is adjusted under this 

12 section, a conditional nonimmigrant or 

13 conditional nonimmigrant dependent shall 

14 satisfy any applicable Federal tax liability 

15 by establishing that— 

16 (I) no such tax liability exists; 

17 (II) all outstanding liabilities 

18 have been paid; or 

19 (III) the conditional non20 immigrant has entered into, and is in 

21 compliance with, an agreement for 

22 payment of all outstanding liabilities 

23 with the Internal Revenue Service. 

24 (ii) APPLICABLE FEDERAL TAX LI25 ABILITY.—For purposes of (i), the term 


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1 ‘‘applicable Federal tax liability’’ means li2 ability for Federal taxes, including pen3 alties and interest, owed for any year while 

4 classified as a conditional permanent resi5 dent for which the statutory period for as6 sessment of any deficiency for such taxes 

7 has not expired. 

8 (iii) IRS COOPERATION.—The Sec9 retary of the Treasury shall establish rules 

10 and procedures under which the Commis11 sioner of Internal Revenue shall provide 

12 documentation to— 

13 (I) a conditional permanent resi14 dent, upon request, to establish the 

15 payment of all taxes required under 

16 this subsection; or 

17 (II) the Secretary, upon request, 

18 regarding the payment of Federal 

19 taxes by an alien applying for a ben20 efit under this section. 

21 (iv) COMPLIANCE.—The alien may 

22 satisfy proof of compliance with this sub23 section by submitting documentation that 

24 establishes that— 

25 (I) no such tax liability exists; 


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1 (II) all outstanding liabilities 

2 have been met; or 

3 (III) the alien has entered into, 

4 and is in compliance with, an agree5 ment for payment of all outstanding 

6 liabilities with the Internal Revenue 

7 Service. 

8 (b) ADJUSTMENT OF STATUS.— 

9 (1) ADJUSTMENT OF STATUS.—Notwith10 standing any other provision of law, and except as 

11 otherwise provided in this Act, the Secretary of 

12 Homeland Security may adjust the status of an alien 

13 granted a PUM visa, subject to the conditional basis 

14 described in subsection (a), if the alien demonstrates 

15 that the alien is not inadmissible under paragraph 

16 (2) (criminal grounds), (3) (security grounds), 4(A) 

17 and (B) (public charge), 6(E) (smugglers), or 10(C) 

18 (child abductors) of section 212(a) of the Immigra19 tion and Nationality Act (8 U.S.C. 1182(a)), 

20 (2) MANDATORY FEE.—Aliens granted a waiver 

21 of inadmissibility from 212(a) not listed in (1) shall 

22 pay a $500 fee that shall be deposited into the Secu23 rity and Prosperity Account as described in section 

24 502 of the Comprehensive Immigration Reform 

25 ASAP Act of 2009. 


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1 (3) ALIENS NOT SUBJECT TO DIRECT NUMER2 ICAL LIMITATIONS.—Section 201(b)(1) (8 U.S.C. 

3 1151(b)(1)), as amended by sections 310, 313, and 

4 317(a) of this Act, is further amended by adding at 

5 the end the following: 

6 ‘‘(I) Aliens whose status is adjusted under 

7 section 203(i).’’. 

8 SEC. 319. RULEMAKING. 

9 The Secretary shall promulgate regulations regarding 

10 the timely filing and processing of applications for visas 

11 awarded under section 203(i) of the Immigration and Na12 tionality Act, as added by section 317(b) of this Act. 

13 SEC. 320. UNITED STATES-EDUCATED IMMIGRANTS. 

14 (a) EXEMPTION FROM NUMERICAL LIMITATIONS.— 

15 (1) IN GENERAL.—Section 201(b)(1) (8 U.S.C. 

16 1151(b)(1)), as amended by sections 310, 313, 

17 317(a), and 318(b)(3) of this Act, is further amend18 ed by adding at the end the following: 

19 ‘‘(J) Aliens who have earned a master’s or 

20 higher degree from an accredited university in 

21 the United States. 

22 ‘‘(K) Aliens who have been awarded med23 ical specialty certification based on postdoctoral 

24 training and experience in the United States 


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1 preceding their application for an immigrant 

2 visa under section 203(b). 

3 ‘‘(L) Aliens who will perform labor in 

4 shortage occupations designated by the Sec5 retary of Labor for blanket certification under 

6 section 212(a)(5)(A) as lacking sufficient 

7 United States workers able, willing, qualified, 

8 and available for such occupations and for 

9 which the employment of aliens will not ad10 versely affect the terms and conditions of simi11 larly employed United States workers. 

12 ‘‘(M) Aliens who have earned a master’s 

13 degree or higher in science, technology, engi14 neering, or mathematics and have been working 

15 in a related field in the United States in a non16 immigrant status during the 3-year period pre17 ceding their application for an immigrant visa 

18 under section 203(b). 

19 ‘‘(N) Aliens described in subparagraph (A) 

20 or (B) of section 203(b)(1) or who have re21 ceived a national interest waiver under section 

22 203(b)(2)(B). 

23 ‘‘(O) The spouse and minor children of an 

24 alien described in subparagraph (J), (K), (L), 

25 (M), or (N).’’. 


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1 (2) APPLICABILITY.—The amendment made by 

2 paragraph (1) shall apply to any visa application— 

3 (A) pending on the date of the enactment 

4 of this Act; or 

5 (B) filed on or after such date of enact6 ment. 

7 (b) LABOR CERTIFICATIONS.—Section 

8 212(a)(5)(A)(ii) (8 U.S.C. 1182(a)(5)(A)(ii)) is amend9 ed— 

10 (1) in subclause (I), by striking ‘‘, or’’ and in11 serting a semicolon; 

12 (2) in subclause (II), by striking the period at 

13 the end and inserting ‘‘; or’’; and 

14 (3) by adding at the end the following: 

15 ‘‘(III) is a member of the profes16 sions and has a master’s degree or 

17 higher from an accredited university 

18 in the United States or has been 

19 awarded medical specialty certification 

20 based on postdoctoral training and ex21 perience in the United States.’’. 

22 (c) ATTESTATION BY HEALTH CARE WORKERS.— 

23 (1) REQUIREMENT FOR ATTESTATION.—Section 

24 212(a)(5) (8 U.S.C. 1182(a)(5)) is amended by add25 ing at the end the following: 


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1 ‘‘(E) HEALTH CARE WORKERS WITH

2 OTHER OBLIGATIONS.— 

3 ‘‘(i) IN GENERAL.—An alien who 

4 seeks to enter the United States for the 

5 purpose of performing labor as a physician 

6 or other health care worker is inadmissible 

7 unless the alien submits to the Secretary of 

8 Homeland Security or the Secretary of 

9 State, as appropriate, an attestation that 

10 the alien is not seeking to enter the United 

11 States for such purpose during any period 

12 in which the alien has an outstanding obli13 gation to the government of the alien’s 

14 country of origin or the alien’s country of 

15 residence. 

16 ‘‘(ii) OBLIGATION DEFINED.—In this 

17 subparagraph, the term ‘obligation’ means 

18 an obligation incurred as part of a valid, 

19 voluntary individual agreement in which 

20 the alien received financial assistance to 

21 defray the costs of education or training to 

22 qualify as a physician or other health care 

23 worker in consideration for a commitment 

24 to work as a physician or other health care 


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1 worker in the alien’s country of origin or 

2 the alien’s country of residence. 

3 ‘‘(iii) WAIVER.—The Secretary of 

4 Homeland Security may waive a finding of 

5 inadmissibility under clause (i) if the Sec6 retary determines that— 

7 ‘‘(I) the obligation was incurred 

8 by coercion or other improper means; 

9 ‘‘(II) the alien and the govern10 ment of the country to which the alien 

11 has an outstanding obligation have 

12 reached a valid, voluntary agreement, 

13 pursuant to which the alien’s obliga14 tion has been deemed satisfied, or the 

15 alien has shown to the satisfaction of 

16 the Secretary that the alien has been 

17 unable to reach such an agreement 

18 because of coercion or other improper 

19 means; or 

20 ‘‘(III) the obligation should not 

21 be enforced due to other extraordinary 

22 circumstances, including undue hard23 ship that would be suffered by the 

24 alien in the absence of a waiver.’’. 

25 (2) EFFECTIVE DATE AND APPLICATION.— 


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1 (A) EFFECTIVE DATE.—The amendment 

2 made by paragraph (1) shall become effective 

3 180 days after the date of the enactment of this 

4 Act. 

5 (B) APPLICATION BY THE SECRETARY.— 

6 The Secretary shall begin to carry out section 

7 212(a)(5)(E) of the Immigration and Nation8 ality Act, as added by paragraph (1), not later 

9 than the effective date described in subpara10 graph (A), including the requirement for the at11 testation and the granting of a waiver described 

12 in such section, regardless of whether regula13 tions to implement such section have been pro14 mulgated. 

15 SEC. 321. RETAINING WORKERS SUBJECT TO GREEN CARD 

16 BACKLOG. 

17 (a) ADJUSTMENT OF STATUS.—Section 245 (8 

18 U.S.C. 1255), as amended by this title, is further amended 

19 by adding at the end the following: 

20 ‘‘(n) ADJUSTMENT OF STATUS FOR EMPLOYMENT21 BASED IMMIGRANTS.— 

22 ‘‘(1) ELIGIBILITY.—The Secretary of Homeland 

23 Security shall promulgate regulations to provide for 

24 the filing of an application for adjustment of status 

25 by an alien (and any eligible dependents of such 


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1 alien), regardless of whether an immigrant visa is 

2 immediately available at the time the application is 

3 filed, if the alien— 

4 ‘‘(A) has an approved petition under sub5 paragraph (E) or (F) of section 204(a)(1); or 

6 ‘‘(B) at the discretion of the Secretary, has 

7 a pending petition under subparagraph (E) or 

8 (F) of section 204(a)(1). 

9 ‘‘(2) VISA AVAILABILITY.—An application filed 

10 pursuant to paragraph (1) may not be approved 

11 until an immigrant visa becomes available. 

12 ‘‘(3) FEES.—If an application is filed pursuant 

13 to paragraph (1), the beneficiary of such application 

14 shall pay a supplemental fee of $500. Such fee may 

15 not be charged to any dependent accompanying or 

16 following to join such beneficiary. 

17 ‘‘(4) EXTENSION OF EMPLOYMENT AUTHORIZA18 TION AND ADVANCED PAROLE DOCUMENT.— 

19 ‘‘(A) IN GENERAL.—The Secretary of 

20 Homeland Security shall provide employment 

21 authorization and advanced parole documents, 

22 in 3-year increments, to beneficiaries of an ap23 plication for adjustment of status based on a 

24 petition that is filed or, at the discretion of the 


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1 Secretary, pending, under subparagraph (E) or 

2 (F) of section 204(a)(1). 

3 ‘‘(B) FEE ADJUSTMENTS.—Application 

4 fees under this subsection may be adjusted in 

5 accordance with the 3-year period of validity as6 signed to the employment authorization or ad7 vanced parole documents under subparagraph 

8 (A).’’. 

9 (b) USE OF FEES.—Section 286 (8 U.S.C. 1356) is 

10 amended— 

11 (1) in subsection (m)— 

12 (A) by striking ‘‘(m) Notwithstanding any 

13 other provisions of law,’’ and inserting the fol14 lowing: 

15 ‘‘(m) IMMIGRATION EXAMINATIONS FEE AC16 COUNT.— 

17 ‘‘(1) IN GENERAL.—Notwithstanding any other 

18 provision of law, all fees collected under section 

19 245(o)(3) and’’; 

20 (B) by striking ‘‘: Provided, however, That 

21 all’’ and inserting the following: 

22 ‘‘(2) VIRGIN ISLANDS; GUAM.—All’’; and 

23 (C) by striking ‘‘: Provided further, That 

24 fees’’ and inserting the following: 

25 ‘‘(3) COST RECOVERY.—Fees’’; 


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1 (2) in subsection (n)— 

2 (A) by striking ‘‘(n) All deposits’’ and in3 serting the following: 

4 ‘‘(4) USE OF FUNDS.— 

5 ‘‘(A) IN GENERAL.—Except as provided 

6 under subparagraph (B), all deposits’’; and 

7 (B) adding at the end the following: 

8 ‘‘(B) SUPPLEMENTAL FEE FOR ADJUST9 MENT OF STATUS OF EMPLOYMENT-BASED IM10 MIGRANTS.—Any amounts deposited into the 

11 Immigration Examinations Fee Account that 

12 were collected under section 245(o)(3) shall re13 main available until expended by the Secretary 

14 of Homeland Security for backlog reduction and 

15 clearing security background check delays.’’; 

16 (3) in subsection (o), by striking ‘‘(o) The At17 torney General’’ and inserting the following: 

18 ‘‘(5) ANNUAL FINANCIAL REPORT TO CON19 GRESS.—The Attorney General’’; and 

20 (4) in subsection (p), by striking ‘‘(p) The pro21 visions set forth in subsections (m), (n), and (o) of 

22 this section’’ and inserting the following: 

23 ‘‘(6) APPLICABILITY.—The provisions set forth 

24 in this subsection shall’’. 


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1 SEC. 322. RETURN OF TALENT PROGRAM. 

2 (a) SHORT TITLE.—This section may be cited as the 

3 ‘‘Return of Talent Act’’. 

4 (b) ESTABLISHMENT.— 

5 (1) IN GENERAL.—Title III (8 U.S.C. 1401 et 

6 seq.) is amended by inserting after section 317 the 

7 following: 

8 ‘‘SEC. 317A. TEMPORARY ABSENCE OF PERSONS PARTICI9 PATING IN THE RETURN OF TALENT PRO10 GRAM. 

11 ‘‘(a) IN GENERAL.—The Secretary of Homeland Se12 curity, in consultation with the Secretary of State, shall 

13 establish the Return of Talent Program to permit eligible 

14 aliens to temporarily return to the alien’s country of citi15 zenship in order to make a material contribution to that 

16 country if the country is engaged in postconflict or natural 

17 disaster reconstruction activities, for a period not longer 

18 than 2 years, unless an exception is granted under sub19 section (d). 

20 ‘‘(b) ELIGIBLE ALIEN.—An alien is eligible to partici21 pate in the Return of Talent Program established under 

22 subsection (a) if the alien meets the special immigrant de23 scription under section 101(a)(27)(N). 

24 ‘‘(c) FAMILY MEMBERS.—The spouse, parents, sib25 lings, and any minor children of an alien who participates 

26 in the Return of Talent Program established under subVerDate Nov 24 2008 00:39 Dec 17, 2009 Jkt 089200 PO 00000 Frm 00351 Fmt 6652 Sfmt 6201 E:\BILLS\H4321.IH H4321

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1 section (a) may return to such alien’s country of citizen2 ship with the alien and reenter the United States with the 

3 alien. 

4 ‘‘(d) EXTENSION OF TIME.—The Secretary of Home5 land Security may extend the 2-year period referred to in 

6 subsection (a) upon a showing that circumstances warrant 

7 that an extension is necessary for postconflict or natural 

8 disaster reconstruction efforts. 

9 ‘‘(e) RESIDENCY REQUIREMENTS.—An immigrant 

10 described in section 101(a)(27)(N) who participates in the 

11 Return of Talent Program established under subsection 

12 (a), and the spouse, parents, siblings, and any minor chil13 dren who accompany such immigrant to that immigrant’s 

14 country of citizenship, shall be considered, during such pe15 riod of participation in the program— 

16 ‘‘(1) for purposes of section 316(a), physically 

17 present and residing in the United States for pur18 poses of naturalization within the meaning of that 

19 section; and 

20 ‘‘(2) for purposes of section 316(b), to meet the 

21 continuous residency requirements in that section. 

22 ‘‘(f) OVERSIGHT AND ENFORCEMENT.—The Sec23 retary of Homeland Security, in consultation with the Sec24 retary of State, shall oversee and enforce the requirements 

25 of this section.’’. 


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1 (2) TABLE OF CONTENTS.—The table of con2 tents (8 U.S.C. 1101 et seq.) is amended by insert3 ing after the item relating to section 317 the fol4 lowing: 

‘‘317A. Temporary absence of persons participating in the Return of Talent 

Program’’.’’ 

5 (c) ELIGIBLE IMMIGRANTS.—Section 101(a)(27) (8 

6 U.S.C. 1101(a)(27)) is amended by adding at the end the 

7 following: 

8 ‘‘(N) an immigrant who— 

9 ‘‘(i) has been lawfully admitted to the 

10 United States for permanent residence; 

11 ‘‘(ii) demonstrates an ability and will12 ingness to make a material contribution to 

13 the postconflict or natural disaster recon14 struction in the alien’s country of citizen15 ship; and 

16 ‘‘(iii) as determined by the Secretary 

17 of State in consultation with the Secretary 

18 of Homeland Security— 

19 ‘‘(I) is a citizen of a country in 

20 which Armed Forces of the United 

21 States are engaged, or have engaged 

22 in the 10 years preceding such deter23 mination, in combat or peacekeeping 

24 operations; 


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1 ‘‘(II) is a citizen of a country 

2 where authorization for United Na3 tions peacekeeping operations was ini4 tiated by the United Nations Security 

5 Council during the 10 years preceding 

6 such determination; or 

7 ‘‘(III) is a citizen of a country 

8 which received, during the preceding 2 

9 years, funding from the Office of For10 eign Disaster Assistance of the United 

11 States Agency for International Devel12 opment in response to a declared dis13 aster in such country by the United 

14 States Ambassador, the Chief of the 

15 U.S. Mission, or the appropriate As16 sistant Secretary of State, that is be17 yond the ability of such country’s re18 sponse capacity and warrants a re19 sponse by the United States Govern20 ment.’’. 

21 (d) REPORT TO CONGRESS.—Not later than 2 years 

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

23 in consultation with the Secretary of State, shall submit 

24 a report to Congress that describes— 


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1 (1) the countries of citizenship of the partici2 pants in the Return of Talent Program established 

3 under section 317A of the Immigration and Nation4 ality Act, as added by subsection (b); 

5 (2) the postconflict or natural disaster recon6 struction efforts that benefitted, or were made pos7 sible, through participation in the program; and 

8 (3) any other information that the Secretary 

9 determines to be appropriate. 

10 (e) REGULATIONS.—Not later than 6 months after 

11 the date of the enactment of this Act, the Secretary shall 

12 promulgate regulations to carry out this section and the 

13 amendments made by this section. 

14 (f) AUTHORIZATION OF APPROPRIATIONS.—There 

15 are authorized to be appropriated to United States Citi16 zenship and Immigration Services such sums as may be 

17 necessary to carry out this section and the amendments 

18 made by this section. 

19 TITLE IV—EARNED LEGALIZA20 TION OF UNDOCUMENTED IN21 DIVIDUALS 

22 Subtitle A—Conditional 

23 Nonimmigrants 

24 SEC. 401. CONDITIONAL NONIMMIGRANTS. 

25 (a) IN GENERAL.— 


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1 (1) REQUIRED REGISTRATION.—An alien as de2 scribed in this section shall register with the Depart3 ment of Homeland Security by submitting biometric 

4 identification pursuant to subsection (b) and filing 

5 an application with the Secretary that demonstrates 

6 the alien’s compliance with the requirements listed 

7 in subsections (b) through (e). 

8 (2) CLASSIFICATION.—Notwithstanding any 

9 other provision of law, including section 244(h) of 

10 the Immigration and Nationality Act (8 U.S.C. 

11 1254a(h)), the Secretary shall classify an alien as a 

12 conditional nonimmigrant or conditional non13 immigrant dependent if the alien registers pursuant 

14 to paragraph (1) and is determined to meet the re15 quirements listed in this section. 

16 (b) COMPLIANCE WITH SECURITY AND LAW EN17 FORCEMENT BACKGROUND CHECKS.—Registration and 

18 classification as a conditional nonimmigrant or conditional 

19 nonimmigrant dependent under this section is contingent 

20 upon the submission of all required biometric data in ac21 cordance with procedures established by the Secretary. 

22 (c) PHYSICAL PRESENCE.— 

23 (1) PRESENCE IN THE UNITED STATES.—The 

24 alien shall establish that the alien— 


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1 (A) was present in the United States on 

2 the date of the introduction of this Act in the 

3 United States House of Representatives; 

4 (B) has been continuously present in the 

5 United States since the date described in sub6 paragraph (A); and 

7 (C) was not legally present in the United 

8 States on the date of the introduction of this 

9 Act in the United States House of Representa10 tives under any classification described in sec11 tion 101(a)(15) of the Immigration and Nation12 ality Act (8 U.S.C. 1101(a)(15)) or has been in 

13 violation of status on or before such date. 

14 (2) CONTINUOUS PRESENCE.—For purposes of 

15 this subsection, an absence from the United States 

16 without authorization for a continuous period of 

17 more than 180 days between the date of the enact18 ment of this Act and the beginning of the applica19 tion period for classification as a conditional non20 immigrant or conditional nonimmigrant dependent 

21 shall constitute a break in continuous physical pres22 ence. Individuals absent under advance parole shall 

23 not be considered as failing to meet the continuous 

24 physical presence requirement. 


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1 (d) OTHERWISE ADMISSIBLE TO THE UNITED

2 STATES.— 

3 (1) IN GENERAL.—An alien shall be eligible for 

4 classification as a conditional nonimmigrant or con5 ditional nonimmigrant dependent if the Secretary 

6 determines that the alien— 

7 (A) is not inadmissible to the United 

8 States under section 212(a) of the Immigration 

9 and Nationality Act (8 U.S.C. 1182(a)), except 

10 as provided in paragraph (2); 

11 (B) has not ordered, incited, assisted, or 

12 otherwise participated in the persecution of any 

13 person on account of race, religion, nationality, 

14 membership in a particular social group, or po15 litical opinion; and 

16 (C) is not an alien— 

17 (i) who has been convicted by final 

18 judgment of a particularly serious crime 

19 and constitutes a danger to the community 

20 of the United States; 

21 (ii) for whom there are reasonable 

22 grounds for believing that the alien has 

23 committed a particularly serious crime out24 side the United States before arriving in 

25 the United States; or 


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1 (iii) for whom there are reasonable 

2 grounds for regarding the alien as a dan3 ger to the security of the United States; 

4 and 

5 (iv) who has been convicted of a fel6 ony or 3 or more misdemeanors for which 

7 the alien has served not less than 12 

8 months of imprisonment in the aggregate. 

9 (2) GROUNDS OF INADMISSIBILITY.—In deter10 mining an alien’s admissibility under paragraph 

11 (1)(A)— 

12 (A) paragraphs (5), (6), (7), (9), and 

13 (10)(B) of section 212(a) of such Act shall not 

14 apply; 

15 (B) the Secretary may not waive— 

16 (i) subparagraph (A), (B), (C), 

17 (D)(ii), (E), (G), (H), or (I) of section 

18 212(a)(2) of such Act (relating to crimi19 nals); 

20 (ii) section 212(a)(3) of such Act (re21 lating to security and related grounds); or 

22 (iii) subparagraph (A), (C), or (D) of 

23 section 212(a)(10) of such Act (relating to 

24 polygamists and child abductors); 


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1 (C) the Secretary may waive the applica2 tion of any provision of section 212(a) of such 

3 Act not listed in subparagraph (B) on behalf of 

4 an individual alien for humanitarian purposes, 

5 to ensure family unity, or if such waiver is oth6 erwise in the public interest; and 

7 (D) nothing in this paragraph shall be con8 strued as affecting the authority of the Sec9 retary other than under this paragraph to waive 

10 the provisions of section 212(a) of such Act. 

11 (3) APPLICABILITY OF OTHER PROVISIONS.— 

12 Sections 240B(d) and 241(a)(5) of the Immigration 

13 and Nationality Act (8 U.S.C. 1229c(d) and 

14 1231(a)(5)) shall not apply to an alien who is apply15 ing for classification under this section for conduct 

16 that occurred before the date of enactment of this 

17 Act. 

18 (e) CONTRIBUTIONS TO THE UNITED STATES

19 THROUGH EMPLOYMENT, EDUCATION, MILITARY SERV20 ICE OR OTHER COMMITMENT TO THE COMMUNITY.— 

21 (1) IN GENERAL.—The Secretary shall not ac22 cept the registration of an alien, or classify an alien 

23 as a conditional nonimmigrant or conditional non24 immigrant dependent unless the alien attests, under 

25 penalty of perjury, that he or she is contributing to 


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1 the United States through one or more of the fol2 lowing enterprises— 

3 (A) the alien is employed full-time, part4 time, or seasonally in the United States, is self5 employed, or is actively seeking employment; or 

6 (B) is enrolled full- or part-time in an ac7 credited secondary or post-secondary school, 

8 university, or other institution of higher edu9 cation, or an accredited vocational, technical, or 

10 other training program; or 

11 (C) is a member of the active or reserve 

12 Armed Services, the National Guard, or other 

13 government sponsored civil service program; or 

14 (D) otherwise establishes, to the satisfac15 tion of the Secretary, that the alien is an active 

16 volunteer or community member. 

17 (2) EXEMPTIONS.—The requirements in para18 graph (1) shall not apply to any individual who, at 

19 the time of registration— 

20 (A) is 65 years of age or older, has a phys21 ical or mental disability, is pregnant, is the pri22 mary caregiver to a child under the age of 16 

23 or to an elderly or disabled person, or is on offi24 cial extended medical leave; or 


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1 (B) is the spouse of a United States citizen 

2 or lawful permanent resident; 

3 (C) is a child 21 years of age or younger 

4 of a United States citizen or lawful permanent 

5 resident; or 

6 (D) has been physically present in the 

7 United States for a continuous period of not 

8 less than 5 years immediately preceding the 

9 date of enactment of this Act, and had not yet 

10 reached the age of 16 years at the time of ini11 tial entry and had not yet reached the age of 

12 35 years on the date of the enactment of this 

13 Act. 

14 (3) DEFINITIONS.—In this subtitle: 

15 (A) INSTITUTION OF HIGHER EDU16 CATION.—The term ‘‘institution of higher edu17 cation’’ has the meaning given that term in sec18 tion 101 of the Higher Education Act of 1965 

19 (20 U.S.C. 1001). 

20 (B) UNIFORMED SERVICES.—The term 

21 ‘‘uniformed services’’ has the meaning given 

22 that term in section 101(a) of title 10, United 

23 States Code. 

24 (f) SPECIAL RULE FOR SPOUSES AND CHILDREN.— 

25 Notwithstanding any other provision of law, the Secretary 


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1 shall classify the spouse or child of a conditional non2 immigrant as a conditional nonimmigrant dependent, or 

3 provide the spouse or child with a conditional non4 immigrant dependent visa if— 

5 (1) the spouse or child is not otherwise inadmis6 sible to the United States as described in subsection 

7 (d); 

8 (2) in the case of a child, was 21 years of age 

9 or younger on the date of enactment of this Act; or 

10 (3) in the case of a spouse, was married to the 

11 conditional nonimmigrant on or before the date of 

12 enactment and is married at the time of the applica13 tion; 

14 (4) except that the spouse or child of an alien 

15 who was subsequently classified as a conditional 

16 nonimmigrant under this Act may apply for classi17 fication as a conditional nonimmigrant if the spousal 

18 or parental relationship has terminated and— 

19 (A) the termination of the relationship 

20 with such spouse or parent was connected to 

21 domestic violence; and 

22 (B) the spouse or child has been battered 

23 or subjected to extreme cruelty by the spouse or 

24 parent who is a conditional nonimmigrant. 


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1 (g) APPLICATION PROCEDURES, FEE AND PEN2 ALTY.— 

3 (1) APPLICATION PROCEDURES.—For purposes 

4 of establishing enrollment in this program, an appli5 cation shall be considered complete if it includes ap6 propriate biometric data, applicable fees, penalties 

7 through fines, and answers fully and completely all 

8 questions attesting to eligibility as described in sub9 sections (a) through (f). The Secretary may require 

10 evidence upon initial submission of the application 

11 sufficient to establish prima facie eligibility for con12 ditional nonimmigrant or conditional nonimmigrant 

13 dependent status. The Secretary may, at his or her 

14 discretion, require additional evidence or an inter15 view to make a final determination that an alien has 

16 established eligibility for classification. 

17 (2) APPLICATION FEE AND PENALTY.— 

18 (A) APPLICATION FEE.—The Secretary 

19 shall impose a fee for filing an application 

20 under this section. Such fee shall be sufficient 

21 to cover the administrative and other expenses 

22 incurred in connection with the review of such 

23 applications. 

24 (B) PENALTY.— 


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1 (i) IN GENERAL.—Except as provided 

2 under clause (ii), an alien filing an applica3 tion under this section shall submit to the 

4 Secretary, in addition to the fee required 

5 under subparagraph (A), a fine of $500. 

6 (ii) EXCEPTION.—An alien who is 

7 classified as a conditional nonimmigrant 

8 who qualifies for classification based on the 

9 exemption in subsection (e)(2)(D) or a 

10 conditional nonimmigrant dependent be11 cause he or she was younger than 21 years 

12 of age on the date of enactment of this Act 

13 shall not be required to pay a fine under 

14 this paragraph. 

15 (C) DISPOSITION OF FEES AND FINES.— 

16 (i) FEES.—Fees collected under this 

17 paragraph shall be deposited into the Im18 migration Examination Fee Account and 

19 remain available as provided under sub20 sections (m) and (n) of section 286 of the 

21 Immigration and Nationality Act (8 U.S.C. 

22 1356). 

23 (ii) FINES.—Fines collected under 

24 this paragraph shall be deposited into the 


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1 Security and Prosperity Account estab2 lished under section 286(w) of such Act. 

3 (h) TREATMENT OF APPLICANTS.— 

4 (1) IN GENERAL.—An alien who files an appli5 cation under this section to become a conditional 

6 nonimmigrant or a conditional nonimmigrant de7 pendent shall be considered enrolled in the program 

8 pursuant to subsection (a)(2) until such time as a 

9 final determination is made on the application for 

10 classification. Following submission of biometric 

11 data pursuant to subsection (b) and successful clear12 ance of the Secretary’s security and criminal back13 ground checks, a registered alien— 

14 (A) shall be granted employment author15 ization pending final adjudication of the alien’s 

16 application; 

17 (B) shall be granted permission to travel 

18 abroad; 

19 (C) may not be detained for immigration 

20 purposes, determined inadmissible or deport21 able, or removed pending final adjudication of 

22 the alien’s application, unless the alien, due to 

23 subsequent conduct or criminal conviction, be24 comes ineligible for conditional nonimmigrant 

25 classification; and 


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1 (D) may not be considered an unauthor2 ized alien (as defined in section 274A(h)(3) of 

3 the Immigration and Nationality Act (8 U.S.C. 

4 1324a(h)(3))) until employment authorization 

5 under subparagraph (A) is denied. 

6 (2) DOCUMENT OF AUTHORIZATION.—The Sec7 retary shall provide each alien described in para8 graph (1) with a counterfeit-resistant document of 

9 authorization that— 

10 (A) meets all current requirements estab11 lished by the Secretary for travel documents, in12 cluding the requirements under section 403 of 

13 the Illegal Immigration Reform and Immigrant 

14 Responsibility Act of 1996 (8 U.S.C. 1324a 

15 note); and 

16 (B) reflects the benefits and status set 

17 forth in paragraph (1). 

18 (3) BEFORE APPLICATION PERIOD.—If an alien 

19 is apprehended between the date of the enactment of 

20 this Act and the date on which the alien files an ap21 plication under this section, and the alien can estab22 lish prima facie eligibility as a conditional non23 immigrant or a conditional nonimmigrant dependent, 

24 the alien shall not be detained and the Secretary 


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1 shall provide the alien with a reasonable opportunity 

2 to file an application under this section. 

3 (4) DURING CERTAIN PROCEEDINGS.—Notwith4 standing any provision of the Immigration and Na5 tionality Act, if an immigration judge determines 

6 that an alien who is in removal proceedings has 

7 made a prima facie case of eligibility for classifica8 tion as a conditional nonimmigrant or a conditional 

9 nonimmigrant dependent, the judge shall adminis10 tratively close such proceedings and permit the alien 

11 a reasonable opportunity to apply for such classifica12 tion. 

13 (5) RELATIONSHIPS OF APPLICATION TO CER14 TAIN ORDERS.— 

15 (A) IN GENERAL.—An alien who is present 

16 in the United States and has been ordered ex17 cluded, deported, removed, or ordered to depart 

18 voluntarily from the United States under any 

19 provision of the Immigration and Nationality 

20 Act— 

21 (i) notwithstanding such order, may 

22 apply for classification as a conditional 

23 nonimmigrant or conditional nonimmigrant 

24 dependent under this subtitle; 


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1 (ii) shall not be required to file a sep2 arate motion to reopen, reconsider, or va3 cate the exclusion, deportation, removal, or 

4 voluntary departure order; and 

5 (iii) the filing of an application for 

6 conditional nonimmigrant or conditional 

7 nonimmigrant dependent status shall stay 

8 the removal of the alien pending final adju9 dication of the application, unless the re10 moval or detainment of the alien is based 

11 on criminal or national security-related 

12 grounds that would render the alien ineli13 gible under this section. 

14 (B) APPLICATION GRANTED.—If the Sec15 retary grants the application described in sub16 paragraph (A)(i), the Secretary shall cancel the 

17 order described in subparagraph (A). 

18 (C) APPLICATION DENIED.—If the Sec19 retary renders a final administrative decision to 

20 deny the application described in subparagraph 

21 (A)(i), the order described in subparagraph (A) 

22 shall be effective and enforceable to the same 

23 extent as if the application had not been made. 

24 (i) CLASSIFICATION.— 


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1 (1) BENEFITS AND DOCUMENTATION.—If the 

2 Secretary determines that an alien is eligible for 

3 classification as a conditional nonimmigrant or con4 ditional nonimmigrant dependent, the alien shall be 

5 entitled to all benefits described in subsection (h)(1). 

6 The Secretary may authorize the use of a document 

7 described in subsection (h)(2) as evidence of such 

8 classification or may issue additional documentation 

9 as evidence of classification as a conditional non10 immigrant or conditional nonimmigrant dependent. 

11 (2) PERIOD OF AUTHORIZED STAY.— 

12 (A) IN GENERAL.—Except as provided 

13 under subparagraph (C), the period of author14 ized stay for a conditional nonimmigrant or a 

15 conditional nonimmigrant dependent shall be 6 

16 years from the date on which such status is 

17 conferred. 

18 (B) EXTENSION.—The Secretary may ex19 tend the period described in subparagraph (A) 

20 in additional 5-year increments provided that 

21 the alien continues to meet the requirements of 

22 this section. 

23 (j) TERMINATION OF BENEFITS.— 

24 (1) IN GENERAL.—Any benefit provided to an 

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1 immigrant or conditional nonimmigrant dependent, 

2 or who is classified as such, under this section shall 

3 terminate if— 

4 (A) the Secretary determines that the alien 

5 is ineligible for such classification and all review 

6 procedures under section 603 have been ex7 hausted or waived by the alien; 

8 (B) the alien has used documentation 

9 issued under this section for unlawful or fraud10 ulent purposes; or 

11 (C) in the case of the spouse or child of an 

12 alien applying for classification as a conditional 

13 nonimmigrant or classified as a conditional non14 immigrant under this section, the benefits for 

15 the principal alien are terminated unless bene16 fits are terminated due to the death of the prin17 cipal applicant; provided that the spouse or 

18 child shall be given a reasonable opportunity to 

19 apply independently for classification under this 

20 section. 

21 (k) DISSEMINATION OF INFORMATION ON CONDI22 TIONAL NONIMMIGRANT PROGRAM.—During the 12- 

23 month period immediately following the issuance of regu24 lations implementing this section, the Secretary, in co25 operation with entities approved by the Secretary, shall 


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1 broadly disseminate information respecting conditional 

2 nonimmigrant or conditional nonimmigrant dependent 

3 classification under this section and the requirements to 

4 be satisfied to obtain such classification. The Secretary 

5 shall disseminate information to employers and labor 

6 unions to advise them of the rights and protections avail7 able to them and to workers who file applications under 

8 this section. Such information shall be broadly dissemi9 nated, in the principal languages, as determined by the 

10 Secretary, spoken by aliens who would qualify for classi11 fication under this section, including to television, radio, 

12 and print media to which such aliens would have access. 

13 (l) CONSTRUCTION CLAUSE.—Nothing in this sub14 section shall be construed to prevent an alien described 

15 in this section from filing an application for an immigra16 tion benefit in accordance with any other provision of law. 

17 SEC. 402. ADJUSTMENT OF STATUS FOR CONDITIONAL 

18 NONIMMIGRANTS. 

19 (a) REQUIREMENTS.— 

20 (1) IN GENERAL.—Notwithstanding any other 

21 provision of law, including section 244(h) of the Im22 migration and Nationality Act (8 U.S.C. 1254a(h)), 

23 the Secretary may adjust the status of a conditional 

24 nonimmigrant or a conditional nonimmigrant de25 pendent to that of an alien lawfully admitted for 


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1 permanent residence if the conditional nonimmigrant 

2 or conditional nonimmigrant dependent satisfies the 

3 applicable requirements under this subsection. 

4 (2) FULFILLMENT OF CONDITIONAL REQUIRE5 MENTS.—A conditional nonimmigrant applying for 

6 adjustment of status under this section shall estab7 lish that during the 5-year period immediately pre8 ceding the application for adjustment of status, he 

9 or she has fulfilled the requirements of the alien’s 

10 conditional status by demonstrating that the alien— 

11 (A) has not been convicted of any offenses 

12 that would render the alien inadmissible as de13 scribed in subsection (b); 

14 (B) has satisfied all past or current Fed15 eral income tax liabilities and is in good stand16 ing with the Internal Revenue Service as de17 scribed in subsection (c); 

18 (C) can establish that he or she has con19 tributed to the community through employment, 

20 education, military service or other enterprise 

21 as described in subsection (d); 

22 (D) has demonstrated sufficient mastery of 

23 basic English skills as described in subsection 

24 (e); and 


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1 (E) where applicable, can establish proof of 

2 registration under the Military Selective Service 

3 Act (50 U.S.C. App. 451 et seq.). 

4 (b) ADMISSIBLE UNDER IMMIGRATION LAWS.—A 

5 conditional nonimmigrant or conditional nonimmigrant 

6 dependent applying for adjustment of status under this 

7 section shall establish that he or she is not inadmissible 

8 under section 212(a) of the Immigration and Nationality 

9 Act (8 U.S.C. 1182(a)), except for any provision under 

10 that section that is not applicable or waived under para11 graph (2) or (3) of section 401(d). For purposes of an 

12 application filed under this section, any prior waiver of 

13 inadmissibility granted to an alien under section 401(d)(2) 

14 shall remain in effect with respect to the specific conduct 

15 considered by the Secretary at the time of classification 

16 under section 401. 

17 (c) PAYMENT OF INCOME TAXES.— 

18 (1) IN GENERAL.—Not later than the date on 

19 which status is adjusted under this section, a condi20 tional nonimmigrant or conditional nonimmigrant 

21 dependent shall satisfy any applicable Federal tax li22 ability by establishing that— 

23 (A) no such tax liability exists; 

24 (B) all outstanding liabilities have been 

25 paid; or 


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1 (C) the conditional nonimmigrant has en2 tered into, and is in compliance with, an agree3 ment for payment of all outstanding liabilities 

4 with the Internal Revenue Service. 

5 (2) APPLICABLE FEDERAL TAX LIABILITY.— 

6 For purposes of paragraph (1), the term ‘‘applicable 

7 Federal tax liability’’ means liability for Federal 

8 taxes, including penalties and interest, owed for any 

9 year while classified as a conditional nonimmigrant 

10 or conditional nonimmigrant dependent for which 

11 the statutory period for assessment of any deficiency 

12 for such taxes has not expired. 

13 (3) IRS COOPERATION.—The Secretary of the 

14 Treasury shall establish rules and procedures under 

15 which the Commissioner of Internal Revenue shall 

16 provide documentation to— 

17 (A) a conditional nonimmigrant or condi18 tional nonimmigrant dependent, upon request, 

19 to establish the payment of all taxes required 

20 under this subsection; or 

21 (B) the Secretary, upon request, regarding 

22 the payment of Federal taxes by an alien apply23 ing for a benefit under this section. 


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1 (4) COMPLIANCE.—The alien may satisfy proof 

2 of compliance with this subsection by submitting 

3 documentation that establishes that— 

4 (A) no such tax liability exists; 

5 (B) all outstanding liabilities have been 

6 met; or 

7 (C) the alien has entered into, and is in 

8 compliance with, an agreement for payment of 

9 all outstanding liabilities with the Internal Rev10 enue Service. 

11 (d) CONTRIBUTIONS TO THE UNITED STATES

12 THROUGH EMPLOYMENT, EDUCATION, MILITARY SERV13 ICE OR OTHER COMMITMENT TO THE COMMUNITY.— 

14 (1) An alien shall demonstrate contributions to 

15 the United States by submitting evidence that he or 

16 she— 

17 (A) is or has been engaged in full-time, 

18 part-time, self, or seasonal employment in the 

19 United States; or 

20 (B) has completed or is enrolled in an ac21 credited education program as described under 

22 subsection (e)(1)(B) of section 401; or 

23 (C) is serving in the military or has com24 pleted military service as described in sub25 section (e)(1)(C) of section 401; or 


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1 (D) otherwise establishes, to the satisfac2 tion of the Secretary, that the alien is an active 

3 volunteer or community member; or 

4 (E) is exempt from these requirements, as 

5 described under subsection (e)(2) of section 

6 401; and 

7 (F) is self-sufficient or self-supporting, in8 cluding through the support of family, commu9 nity members, or others, as determined by the 

10 Secretary, such that the alien is not a public 

11 charge or at risk of becoming a public charge. 

12 (2) EVIDENCE OF EMPLOYMENT, EDUCATION, 

13 MILITARY SERVICE OR OTHER CONTRIBUTIONS.— 

14 (A) CONCLUSIVE DOCUMENTS.—An alien 

15 may conclusively establish compliance with 

16 paragraph (1) by submitting records to the Sec17 retary that demonstrate such employment, edu18 cation, military service, or other contributions 

19 that have been maintained by the Social Secu20 rity Administration, the Internal Revenue Serv21 ice, the Armed Services or any other Federal, 

22 State, or local government agency or public or 

23 private educational institution. 

24 (B) OTHER DOCUMENTS.—An alien who is 

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1 paragraph (A) may satisfy the requirement 

2 under paragraph (1) by submitting to the Sec3 retary at least 2 other types of reliable docu4 ments that provide evidence of contributions to 

5 the United States, including— 

6 (i) bank records; 

7 (ii) business records; 

8 (iii) employer records; 

9 (iv) records of a labor union, day 

10 labor center, or organization that assists 

11 workers in employment; 

12 (v) records of a registered charitable, 

13 voluntary or 501(c)(3) nonprofit organiza14 tion; and 

15 (vi) sworn affidavits from nonrelatives 

16 who have direct knowledge of the alien’s 

17 contribution, that contain— 

18 (I) the name, address, and tele19 phone number of the affiant; 

20 (II) the nature and duration of 

21 the relationship between the affiant 

22 and the alien; and 

23 (III) other verification or infor24 mation; and 

25 (vii) remittance records. 


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1 (C) ADDITIONAL DOCUMENTS AND RE2 STRICTIONS.—The Secretary may— 

3 (i) designate additional documents to 

4 evidence employment, education, military 

5 service or and other contributions to the 

6 United States; and 

7 (ii) set such terms and conditions on 

8 the use of affidavits as is necessary to 

9 verify and confirm the identity of any affi10 ant or otherwise prevent fraudulent sub11 missions. 

12 (4) BURDEN OF PROOF.—An alien described in 

13 paragraph (1) who is applying for adjustment of sta14 tus under this section shall prove, by a preponder15 ance of the evidence, that the alien has satisfied the 

16 requirements of this subsection. An alien may meet 

17 such burden of proof by producing sufficient evi18 dence to demonstrate employment, education, mili19 tary service, or other contribution to the United 

20 States as a matter of reasonable inference. 

21 (e) BASIC CITIZENSHIP SKILLS.— 

22 (1) IN GENERAL.—Except as provided under 

23 paragraph (2), a conditional nonimmigrant or condi24 tional nonimmigrant dependent shall establish that 

25 he or she— 


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1 (A) meets the requirements under section 

2 312 of the Immigration and Nationality Act (8 

3 U.S.C. 1423); 

4 (B) earned a high school diploma or ob5 tained a general education development certifi6 cate in the United States; or 

7 (C) is satisfactorily pursuing a course of 

8 study to achieve such an understanding of 

9 English and knowledge and understanding of 

10 the history and Government of the United 

11 States. 

12 (2) RELATION TO NATURALIZATION EXAMINA13 TION.—A conditional nonimmigrant or conditional 

14 nonimmigrant dependent who demonstrates that he 

15 or she meets the requirements under such section 

16 312 may be considered to have satisfied the require17 ments of that section for purposes of becoming natu18 ralized as a citizen of the United States under title 

19 III of the Immigration and Nationality Act (8 

20 U.S.C. 1401 et seq.). 

21 (3) EXCEPTIONS.— 

22 (A) MANDATORY.—Paragraph (1) shall 

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1 pairment (as described in section 312(b)(1) of 

2 the Immigration and Nationality Act (8 U.S.C. 

3 1423(b)(1))). 

4 (B) DISCRETIONARY.—The Secretary may 

5 waive all or part of paragraph (1) for a condi6 tional nonimmigrant who is at least 65 years of 

7 age on the date on which an application is filed 

8 for adjustment of status under this section. 

9 (f) APPLICATION PROCEDURE, FEES, AND FINES.— 

10 (1) COMPLIANCE WITH ALL REQUIREMENTS.— 

11 A conditional nonimmigrant or conditional non12 immigrant dependent seeking to adjust status to 

13 that of a lawful permanent resident shall submit to 

14 a full medical examination and all security and other 

15 law enforcement checks required of an applicant for 

16 adjustment under section 245 of the Immigration 

17 and Nationality Act. 

18 (2) APPLICATION AND FEE.—The Secretary 

19 shall promulgate regulations establishing procedures 

20 for submitting an application for adjustment of sta21 tus under this section. The Secretary shall impose a 

22 fee for filing an application for adjustment of status 

23 under this section which shall be sufficient to cover 

24 the administrative and other expenses incurred in 

25 connection with the review of such applications. 


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1 (3) DEPOSIT OF FEES.—Fees collected under 

2 this paragraph shall be deposited into the Immigra3 tion Examination Fee Account and shall remain 

4 available as provided under subsections (m) and (n) 

5 of section 286 of the Immigration and Nationality 

6 Act (8 U.S.C. 1356). 

7 (g) TREATMENT OF CONDITIONAL NONIMMIGRANT

8 DEPENDENTS.— 

9 (1) ADJUSTMENT OF STATUS.—Notwith10 standing any other provision of law, the Secretary 

11 may— 

12 (A) adjust the status of a conditional non13 immigrant dependent to that of a person admit14 ted for lawful permanent residence if the prin15 cipal conditional nonimmigrant spouse or par16 ent has been found eligible for adjustment of 

17 status under this section, provided that the de18 pendent complies with subparagraphs (A), (B), 

19 and (E), where applicable, of subsection (a)(2) 

20 and completes the application requirements de21 scribed in subsection (f); 

22 (B) adjust the status of a conditional non23 immigrant dependent who was the spouse or 

24 child of an alien who was classified as a condi25 tional nonimmigrant, or was eligible for such 


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1 classification under section 401, to that of a 

2 person admitted for permanent residence if— 

3 (i) the termination of the relationship 

4 with such spouse or parent was connected 

5 to domestic violence; and 

6 (ii) the spouse or child has been bat7 tered or subjected to extreme cruelty by 

8 the spouse or parent; provided that the de9 pendent complies with subparagraphs (A), 

10 (B), and (E), where applicable, of sub11 section (a)(2) and completes the applica12 tion requirements described in subsection 

13 (g). 

14 (2) APPLICATION OF OTHER LAW.—In proc15 essing applications under this subsection on behalf 

16 of aliens who have been battered or subjected to ex17 treme cruelty, the Secretary shall apply— 

18 (A) the provisions under section 

19 204(a)(1)(J) of the Immigration and Nation20 ality Act (8 U.S.C. 1154(a)(1)(J)); and 

21 (B) the protections, prohibitions, and pen22 alties under section 384 of the Illegal Immigra23 tion Reform and Immigrant Responsibility Act 

24 of 1996 (8 U.S.C. 1367). 

25 (h) BACK OF THE LINE.— 


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1 (1) IN GENERAL.—An alien may not adjust sta2 tus to that of a lawful permanent resident status 

3 under this Act until that earlier of— 

4 (A) 30 days after an immigrant visa be5 comes available for petitions filed under section 

6 201, 202, or 203 of the Immigration and Na7 tionality Act (8 U.S.C. 1151, 1152, and 1153), 

8 which were filed before the date of enactment of 

9 this Act; or 

10 (B) 6 years after the date of the enact11 ment of this Act. 

12 (2) SPECIAL RULE FOR CONDITIONAL IMMI13 GRANTS QUALIFYING UNDER SUBSECTION (e)(2)(D) 

14 OF SECTION 401.—An alien who qualifies as a condi15 tional nonimmigrant as described in subsection 

16 (e)(2)(D) of section 401 shall be eligible to apply for 

17 adjustment of status immediately upon the comple18 tion of one of the following: 

19 (A) The alien has acquired a degree from 

20 an institution of higher education in the United 

21 States or has completed at least 2 years, in 

22 good standing, in a program for a bachelor’s 

23 degree or higher degree in the United States. 


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1 (B) The alien has served in the uniformed 

2 services for at least 2 years and, if discharged, 

3 has received an honorable discharge. 

4 (C) The alien has been employed full-time, 

5 part-time, or seasonally for at least 2 years 

6 prior to date of application. 

7 (3) NATURALIZATION.—For purposes of natu8 ralization only, aliens who adjust their status to that 

9 of a lawful permanent resident under the special rule 

10 described in paragraph (2) shall be eligible to apply 

11 for naturalization 3 years after the date on which 

12 adjustment of status is granted. 

13 (i) INELIGIBILITY FOR PUBLIC BENEFITS.—For pur14 poses of section 403 of the Personal Responsibility and 

15 Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 

16 1613), an alien whose status has been adjusted under this 

17 section shall not be eligible for any Federal means-tested 

18 public benefit unless the alien meets the alien eligibility 

19 criteria for such benefit under title IV of such Act (8 

20 U.S.C. 1601 et seq.). 

21 SEC. 403. ADMINISTRATIVE AND JUDICIAL REVIEW. 

22 (a) ADMINISTRATIVE REVIEW.— 

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1 ity within the Bureau of Citizenship and Immigra2 tion Services to provide for a single level of adminis3 trative appellate review of a determination respect4 ing an application for classification or adjustment of 

5 status under this subtitle. 

6 (2) STANDARD FOR REVIEW.—Administrative 

7 appellate review referred to in paragraph (1) shall be 

8 based solely upon the administrative record estab9 lished at the time of the determination on the appli10 cation and upon the presentation of additional or 

11 newly discovered evidence during the time of the 

12 pending appeal or subsequently on motion to reopen. 

13 (b) JUDICIAL REVIEW.— 

14 (1) DIRECT REVIEW.—A person whose applica15 tion for classification or adjustment of status under 

16 this subtitle is denied after administrative appellate 

17 review under subsection (a) may seek review of such 

18 denial, in accordance with chapter 7 of title 5, 

19 United States Code, before the United States dis20 trict court for the district in which the person re21 sides. 

22 (2) REVIEW AFTER REMOVAL PROCEEDINGS.— 

23 There shall be judicial review in the Federal courts 

24 of appeal of the denial of an application for classi25 fication or adjustment of status under this subtitle 


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1 in conjunction with judicial review of an order of re2 moval, deportation, or exclusion. 

3 (3) STANDARD FOR JUDICIAL REVIEW.—Judi4 cial review of a denial of an application under this 

5 subtitle shall be based upon the administrative 

6 record established at the time of the review, but the 

7 court may remand the case to the agency for consid8 eration of additional evidence where the court finds 

9 that the evidence is material and there were reason10 able grounds for failure to adduce the evidence be11 fore the agency. Notwithstanding any other provi12 sion of law, judicial review of all questions arising 

13 from a denial of an application under this subtitle 

14 shall be governed by the standard of review set forth 

15 in chapter 7 of title 5, United States Code. 

16 (4) REMEDIAL POWERS.—Notwithstanding any 

17 other provision of law, the district courts of the 

18 United States shall have jurisdiction over any cause 

19 or claim arising from a pattern or practice of the 

20 Secretary of Homeland Security in the operation or 

21 implementation of this subtitle that is arbitrary, ca22 pricious, or otherwise contrary to law, and may 

23 order any appropriate relief. The district courts may 

24 order any appropriate relief in accordance with the 

25 preceding sentence without regard to exhaustion, 


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1 ripeness, or other standing requirements (other than 

2 constitutionally-mandated requirements), if the court 

3 determines that resolution of such cause or claim 

4 will serve judicial and administrative efficiency or 

5 that a remedy would otherwise not be reasonably 

6 available or practicable. 

7 (c) STAY OF REMOVAL.—Aliens seeking administra8 tive or judicial review under this section shall not be re9 moved from the United States until a final decision is ren10 dered establishing ineligibility under this subtitle. 

11 SEC. 404. MANDATORY DISCLOSURE OF INFORMATION. 

12 (a) MANDATORY DISCLOSURE.—The Secretary and 

13 the Secretary of State shall provide a duly recognized law 

14 enforcement entity that submits a written request with the 

15 information furnished pursuant to an application filed 

16 under this subtitle, and any other information derived 

17 from such furnished information, in connection with a 

18 criminal investigation or prosecution, or a national secu19 rity investigation or prosecution, of an individual suspect 

20 or group of suspects. 

21 (b) LIMITATIONS.—Except as otherwise provided 

22 under this section, no Federal agency, or any officer, em23 ployee, or agent of such agency, may— 

24 (1) use the information furnished by the appli25 cant pursuant to an application for benefits under 


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1 this subtitle for any purpose other than to make a 

2 determination on the application; 

3 (2) make any publication through which the in4 formation furnished by any particular applicant can 

5 be identified; or 

6 (3) permit anyone other than the sworn officers 

7 and employees of such agency to examine individual 

8 applications. 

9 (c) CONSTRUCTION.—Nothing under subsection (b) 

10 shall prevent an alien or an alien’s attorney access to his 

11 or her application, case file, or information related to such 

12 application or adjudication thereof. 

13 (d) CRIMINAL PENALTY.—Any person who knowingly 

14 uses, publishes, or permits information to be examined in 

15 violation of this section shall be fined not more than 

16 $10,000. 

17 SEC. 405. PENALTIES FOR FALSE STATEMENTS IN APPLICA18 TIONS. 

19 (a) CRIMINAL PENALTY.— 

20 (1) VIOLATION.—It shall be unlawful for any 

21 person— 

22 (A) to file, or assist in filing, an applica23 tion for benefits under this subtitle; and 


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1 (i) to knowingly and willfully falsify, 

2 misrepresent, conceal, or cover up a mate3 rial fact; 

4 (ii) to make any false, fictitious, or 

5 fraudulent statements or representations; 

6 or 

7 (iii) to make or use any false writing 

8 or document knowing the same to contain 

9 any false, fictitious, or fraudulent state10 ment or entry; or 

11 (B) to create or supply a false writing or 

12 document for use in making such an applica13 tion. 

14 (2) PENALTY.—Any person who violates para15 graph (1) shall be fined in accordance with title 18, 

16 United States Code, imprisoned not more than 5 

17 years, or both. 

18 (b) INADMISSIBILITY.—An alien who is convicted of 

19 violating subsection (a) shall be considered to be inadmis20 sible to the United States on the ground described in sec21 tion 212(a)(6)(C)(i) of the Immigration and Nationality 

22 Act (8 U.S.C. 1182(a)(6)(C)(i)). 

23 (c) EXCEPTION.—Notwithstanding subsections (a) 

24 and (b), any alien or other entity (including an employer 

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1 tains incorrect data used by the alien to obtain such em2 ployment, shall not, on that ground, be determined to have 

3 violated this section. 

4 SEC. 406. ALIENS NOT SUBJECT TO DIRECT NUMERICAL 

5 LIMITATIONS. 

6 Section 201(b)(1) (8 U.S.C. 1151(b)(1)), as amended 

7 by title III, is further amended— 

8 (1) in subparagraph (A), by striking ‘‘subpara9 graph (A) or (B) of’’; and 

10 (2) by adding at the end the following: 

11 ‘‘(N) Aliens whose status is adjusted from 

12 that of a conditional nonimmigrant or condi13 tional nonimmigrant dependent.’’. 

14 SEC. 407. EMPLOYER PROTECTIONS. 

15 (a) IMMIGRATION STATUS OF ALIEN.—Employers of 

16 aliens applying for conditional nonimmigrant or condi17 tional nonimmigrant dependent classification or adjust18 ment of status under section 401 or 402 shall not be sub19 ject to civil and criminal tax liability relating directly to 

20 the employment of such alien before receiving employment 

21 authorization under this subtitle. 

22 (b) PROVISION OF EMPLOYMENT RECORDS.—Em23 ployers that provide unauthorized aliens with copies of em24 ployment records or other evidence of employment pursu25 ant to an application for conditional nonimmigrant or conVerDate Nov 24 2008 00:39 Dec 17, 2009 Jkt 089200 PO 00000 Frm 00391 Fmt 6652 Sfmt 6201 E:\BILLS\H4321.IH H4321

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1 ditional nonimmigrant dependent classification or adjust2 ment of status under section 401 or 402 or any other ap3 plication or petition pursuant to any other immigration 

4 law, shall not be subject to civil and criminal liability 

5 under section 274A of the Immigration and Nationality 

6 Act (8 U.S.C. 1324a) for employing such unauthorized 

7 aliens. 

8 (c) APPLICABILITY OF OTHER LAW.—Nothing in this 

9 section may be used to shield an employer from liability 

10 under section 274B of the Immigration and Nationality 

11 Act (8 U.S.C. 1324b) or any other labor or employment 

12 law. 

13 SEC. 408. LIMITATIONS ON ELIGIBILITY. 

14 (a) IN GENERAL.—An alien is not ineligible for any 

15 immigration benefit under any provision of this subtitle, 

16 or any amendment made by this subtitle, solely on the 

17 basis that the alien violated section 1543, 1544, or 1546 

18 of title 18, United States Code, or any amendment made 

19 by this Act, during the period beginning on the date of 

20 the enactment of this Act and ending on the date on which 

21 the alien applies for any benefits under this subtitle. 

22 (b) PROSECUTION.—An alien who violates section 

23 1543, 1544, or 1546 of such title, or any amendment 

24 made by this Act, during the period beginning on the date 

25 of the enactment of this Act and ending on the date that 


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1 the alien applies for eligibility for such benefit may be 

2 prosecuted for the violation if the alien′′s application for 

3 such benefit is denied. 

4 SEC. 409. RULEMAKING. 

5 The Secretary shall promulgate regulations regarding 

6 the timely filing and processing of applications for benefits 

7 under this subtitle. 

8 SEC. 410. CORRECTION OF SOCIAL SECURITY RECORDS. 

9 (a) IN GENERAL.—Section 208(e)(1) of the Social 

10 Security Act (42 U.S.C. 408(e)(1)) is amended— 

11 (1) in subparagraph (B)(ii), by striking ‘‘or’’ at 

12 the end; 

13 (2) in subparagraph (C), by inserting ‘‘or’’ at 

14 the end; 

15 (3) by inserting after subparagraph (C) the fol16 lowing: 

17 ‘‘(D) who is granted an adjustment of im18 migration status pursuant to the CIR ASAP 

19 Act of 2009 or an amendment made by that 

20 Act,’’; and 

21 (4) by striking ‘‘1990.’’ and inserting ‘‘1990, or 

22 in the case of an alien described in subparagraph 

23 (D), if such conduct is alleged to have occurred be24 fore the date on which the alien was granted an ad25 justment of status described in such subparagraph.’’. 


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1 (b) EFFECTIVE DATE.—The amendments made by 

2 subsection (a) shall take effect on the first day of the sev3 enth month that begins after the date of the enactment 

4 of this Act. 

5 SEC. 411. RESTORATION OF STATE OPTION TO DETERMINE 

6 RESIDENCY FOR PURPOSES OF HIGHER EDU7 CATION BENEFITS. 

8 (a) IN GENERAL.—Section 505 of the Illegal Immi9 gration Reform and Immigrant Responsibility Act of 1996 

10 (8 U.S.C. 1623) is repealed. 

11 (b) EFFECTIVE DATE.—The repeal under subsection 

12 (a) shall take effect as if included in the enactment of the 

13 Illegal Immigration Reform and Immigrant Responsibility 

14 Act of 1996 (division C of Public Law 104–208; 110 Stat. 

15 3009–546). 

16 SEC. 412. AUTHORIZATION OF APPROPRIATIONS. 

17 (a) IN GENERAL.—There are authorized to be appro18 priated to the Secretary such sums as may be necessary 

19 to carry out this subtitle and the amendments made by 

20 this subtitle. 

21 (b) AVAILABILITY OF FUNDS.—Funds appropriated 

22 pursuant to subsection (a) shall remain available until ex23 pended. 

24 (c) SENSE OF CONGRESS.—It is the sense of Con25 gress that funds authorized to be appropriated under subVerDate Nov 24 2008 00:39 Dec 17, 2009 Jkt 089200 PO 00000 Frm 00394 Fmt 6652 Sfmt 6201 E:\BILLS\H4321.IH H4321

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1 section (a) should be directly appropriated so as to facili2 tate the orderly and timely commencement of the proc3 essing of applications filed under sections 401 and 402. 

4 Subtitle B—Agricultural Job Op5 portunities, Benefits, and Secu6 rity 

7 CHAPTER 1—TITLE AND DEFINITIONS 

8 SEC. 421. SHORT TITLE. 

9 This subtitle may be cited as the ‘‘Agricultural Job 

10 Opportunities, Benefits, and Security Act of 2009’’ or the 

11 ‘‘AgJOBS Act of 2009’’. 

12 SEC. 422. DEFINITIONS. 

13 In this Act: 

14 (1) AGRICULTURAL EMPLOYMENT.—The term 

15 ‘‘agricultural employment’’ means any service or ac16 tivity that is considered to be agricultural under sec17 tion 3(f) of the Fair Labor Standards Act of 1938 

18 (29 U.S.C. 203(f)) or agricultural labor under sec19 tion 3121(g) of the Internal Revenue Code of 1986 

20 or the performance of agricultural labor or services 

21 described in section 101(a)(15)(H)(ii)(a) of the Im22 migration and Nationality Act (8 U.S.C. 

23 1101(a)(15)(H)(ii)(a)). 

24 (2) BLUE CARD STATUS.—The term ‘‘blue card 

25 status’’ means the status of an alien who has been 


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1 lawfully admitted into the United States for tem2 porary residence under section 101(a). 

3 (3) DEPARTMENT.—The term ‘‘Department’’ 

4 means the Department of Homeland Security. 

5 (4) 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 (5) SECRETARY.—Except as otherwise provided, 

10 the term ‘‘Secretary’’ means the Secretary of Home11 land Security. 

12 (6) WORK DAY.—The term ‘‘work day’’ means 

13 any day in which the individual is employed 5.75 or 

14 more hours in agricultural employment. 

15 CHAPTER 2—PILOT PROGRAM FOR 

16 EARNED STATUS ADJUSTMENT OF AG17 RICULTURAL WORKERS 

18 Subchapter A—Blue Card Status 

19 SEC. 431. REQUIREMENTS FOR BLUE CARD STATUS. 

20 (a) REQUIREMENT TO GRANT BLUE CARD STA21 TUS.—Notwithstanding any other provision of law, the 

22 Secretary shall, pursuant to the requirements of this sec23 tion, grant blue card status to an alien who qualifies under 

24 this section if the Secretary determines that the alien— 


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1 (1) during the 24-month period ending on De2 cember 31, 2008— 

3 (A) performed agricultural employment in 

4 the United States for at least 863 hours or 150 

5 work days; or 

6 (B) earned at least $7,500 from agricul7 tural employment in the United States; 

8 (2) applied for such status during the 18-month 

9 application period beginning on the first day of the 

10 seventh month that begins after the date of enact11 ment of this Act; 

12 (3) is otherwise admissible to the United States 

13 under section 212 of the Immigration and Nation14 ality Act (8 U.S.C. 1182), except as otherwise pro15 vided under section 105(b); and 

16 (4) has not been convicted of any felony or a 

17 misdemeanor, an element of which involves bodily in18 jury, threat of serious bodily injury, or harm to 

19 property in excess of $500. 

20 (b) AUTHORIZED TRAVEL.—An alien who is granted 

21 blue card status is authorized to travel outside the United 

22 States (including commuting to the United States from 

23 a residence in a foreign country) in the same manner as 

24 an alien lawfully admitted for permanent residence. 


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1 (c) AUTHORIZED EMPLOYMENT.—The Secretary 

2 shall provide an alien who is granted blue card status an 

3 employment authorized endorsement or other appropriate 

4 work permit, in the same manner as an alien lawfully ad5 mitted for permanent residence. 

6 (d) TERMINATION OF BLUE CARD STATUS.— 

7 (1) DEPORTABLE ALIENS.—The Secretary shall 

8 terminate blue card status granted to an alien if the 

9 Secretary determines that the alien is deportable. 

10 (2) OTHER GROUNDS FOR TERMINATION.—The 

11 Secretary shall terminate blue card status granted to 

12 an alien if— 

13 (A) the Secretary finds, by a preponder14 ance of the evidence, that the adjustment to 

15 blue card status was the result of fraud or will16 ful misrepresentation, as described in section 

17 212(a)(6)(C)(i) of the Immigration and Nation18 ality Act (8 U.S.C. 1182(a)(6)(C)(i)); or 

19 (B) the alien— 

20 (i) commits an act that makes the 

21 alien inadmissible to the United States 

22 under section 212 of the Immigration and 

23 Nationality Act (8 U.S.C. 1182), except as 

24 provided under section 105(b); 


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1 (ii) is convicted of a felony or 3 or 

2 more misdemeanors committed in the 

3 United States; 

4 (iii) is convicted of an offense, an ele5 ment of which involves bodily injury, threat 

6 of serious bodily injury, or harm to prop7 erty in excess of $500; or 

8 (iv) fails to perform the agricultural 

9 employment required under paragraph 

10 (1)(A) of section 103(a) unless the alien 

11 was unable to work in agricultural employ12 ment due to the extraordinary cir13 cumstances described in paragraph (3) of 

14 such section. 

15 (e) RECORD OF EMPLOYMENT.— 

16 (1) IN GENERAL.—Each employer of an alien 

17 granted blue card status shall annually— 

18 (A) provide a written record of employ19 ment to the alien; and 

20 (B) provide a copy of such record to the 

21 Secretary. 

22 (2) CIVIL PENALTIES.— 

23 (A) IN GENERAL.—If the Secretary finds, 

24 after notice and opportunity for a hearing, that 

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1 tus has failed to provide the record of employ2 ment required under paragraph (1) or has pro3 vided a false statement of material fact in such 

4 a record, the employer shall be subject to a civil 

5 penalty in an amount not to exceed $1,000 per 

6 violation. 

7 (B) LIMITATION.—The penalty applicable 

8 under subparagraph (A) for failure to provide 

9 records shall not apply unless the alien has pro10 vided the employer with evidence of employment 

11 authorization granted under this section. 

12 (3) SUNSET.—The obligation under paragraph 

13 (1) shall terminate on the date that is 6 years after 

14 the date of the enactment of this Act. 

15 (f) REQUIRED FEATURES OF IDENTITY CARD.—The 

16 Secretary shall provide each alien granted blue card sta17 tus, and the spouse and any child of each such alien resid18 ing in the United States, with a card that contains— 

19 (1) an encrypted, machine-readable, electronic 

20 identification strip that is unique to the alien to 

21 whom the card is issued; 

22 (2) biometric identifiers, including fingerprints 

23 and a digital photograph; and 


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1 (3) physical security features designed to pre2 vent tampering, counterfeiting, or duplication of the 

3 card for fraudulent purposes. 

4 (g) FINE.—An alien granted blue card status shall 

5 pay a fine of $100 to the Secretary. 

6 (h) MAXIMUM NUMBER.—The Secretary may not 

7 issue more than 1,350,000 blue cards during the 5-year 

8 period beginning on the date of the enactment of this Act. 

9 SEC. 432. TREATMENT OF ALIENS GRANTED BLUE CARD 

10 STATUS. 

11 (a) IN GENERAL.—Except as otherwise provided 

12 under this section, an alien granted blue card status (in13 cluding a spouse or child of the alien granted derivative 

14 status) shall be considered to be an alien lawfully admitted 

15 for permanent residence for purposes of any law other 

16 than any provision of the Immigration and Nationality Act 

17 (8 U.S.C. 1101 et seq.). 

18 (b) DELAYED ELIGIBILITY FOR CERTAIN FEDERAL

19 PUBLIC BENEFITS.—Except as otherwise provided in law, 

20 an alien granted blue card status shall not be eligible, by 

21 reason of such status, for any form of assistance or benefit 

22 described in section 403(a) of the Personal Responsibility 

23 and Work Opportunity Reconciliation Act of 1996 (8 

24 U.S.C. 1613(a)) until 5 years after the date on which the 


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1 alien is granted an adjustment of status under section 

2 103. 

3 SEC. 433. ADJUSTMENT TO PERMANENT RESIDENCE. 

4 (a) IN GENERAL.—Except as provided in subsection 

5 (b), the Secretary shall adjust the status of an alien grant6 ed blue card status to that of an alien lawfully admitted 

7 for permanent residence if the Secretary determines that 

8 the following requirements are satisfied: 

9 (1) QUALIFYING EMPLOYMENT.— 

10 (A) IN GENERAL.—Subject to subpara11 graph (B), the alien has performed at least— 

12 (i) 5 years of agricultural employment 

13 in the United States for at least 100 work 

14 days per year, during the 5-year period be15 ginning on the date of the enactment of 

16 this Act; or 

17 (ii) 3 years of agricultural employ18 ment in the United States for at least 150 

19 work days per year, during the 3-year pe20 riod beginning on the date of the enact21 ment of this Act. 

22 (B) 4-YEAR PERIOD OF EMPLOYMENT.— 

23 An alien shall be considered to meet the re24 quirements of subparagraph (A) if the alien has 

25 performed 4 years of agricultural employment 


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1 in the United States for at least 150 work days 

2 during 3 years of those 4 years and at least 

3 100 work days during the remaining year, dur4 ing the 4-year period beginning on the date of 

5 the enactment of this Act. 

6 (2) PROOF.—An alien may demonstrate compli7 ance with the requirement under paragraph (1) by 

8 submitting— 

9 (A) the record of employment described in 

10 section 101(e); or 

11 (B) documentation that may be submitted 

12 under section 104(c). 

13 (3) EXTRAORDINARY CIRCUMSTANCES.— 

14 (A) IN GENERAL.—In determining whether 

15 an alien has met the requirement of paragraph 

16 (1)(A), the Secretary may credit the alien with 

17 not more than 12 additional months of agricul18 tural employment in the United States to meet 

19 such requirement if the alien was unable to 

20 work in agricultural employment due to— 

21 (i) pregnancy, injury, or disease, if the 

22 alien can establish such pregnancy, dis23 abling injury, or disease through medical 

24 records; 


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1 (ii) illness, disease, or other special 

2 needs of a minor child, if the alien can es3 tablish such illness, disease, or special 

4 needs through medical records; 

5 (iii) severe weather conditions that 

6 prevented the alien from engaging in agri7 cultural employment for a significant pe8 riod of time; or 

9 (iv) termination from agricultural em10 ployment, if the Secretary finds that the 

11 termination was without just cause and 

12 that the alien was unable to find alter13 native agricultural employment after a rea14 sonable job search. 

15 (B) EFFECT OF FINDING.—A finding 

16 made under subparagraph (A)(iv), with respect 

17 to an alien, shall not— 

18 (i) be conclusive, binding, or admis19 sible in a separate or subsequent judicial 

20 or administrative action or proceeding be21 tween the alien and a current or prior em22 ployer of the alien or any other party; or 

23 (ii) subject the alien’s employer to the 

24 payment of attorney fees incurred by the 


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1 alien in seeking to obtain a finding under 

2 subparagraph (A)(iv). 

3 (4) APPLICATION PERIOD.—The alien applies 

4 for adjustment of status not later than 7 years after 

5 the date of the enactment of this Act. 

6 (5) FINE.—The alien pays a fine of $400 to the 

7 Secretary. 

8 (b) GROUNDS FOR DENIAL OF ADJUSTMENT OF STA9 TUS.—The Secretary shall deny an alien granted blue card 

10 status an adjustment of status under this section if— 

11 (1) the Secretary finds, by a preponderance of 

12 the evidence, that the adjustment to blue card status 

13 was the result of fraud or willful misrepresentation, 

14 as described in section 212(a)(6)(C)(i) of the Immi15 gration and Nationality Act (8 U.S.C. 

16 1182(a)(6)(C)(i)); or 

17 (2) the alien— 

18 (A) commits an act that makes the alien 

19 inadmissible to the United States under section 

20 212 of the Immigration and Nationality Act (8 

21 U.S.C. 1182), except as provided under section 

22 105(b); 

23 (B) is convicted of a felony or 3 or more 

24 misdemeanors committed in the United States; 


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1 (C) is convicted of an offense, an element 

2 of which involves bodily injury, threat of serious 

3 bodily injury, or harm to property in excess of 

4 $500; or 

5 (D) failed to perform the agricultural em6 ployment required under paragraph (1)(A) of 

7 subsection (a) unless the alien was unable to 

8 work in agricultural employment due to the ex9 traordinary circumstances described in para10 graph (3) of such subsection. 

11 (c) GROUNDS FOR REMOVAL.—Any alien granted 

12 blue card status who does not apply for adjustment of sta13 tus under this section before the expiration of the applica14 tion period described in subsection (a)(4) or who fails to 

15 meet the other requirements of subsection (a) by the end 

16 of the application period, is deportable and may be re17 moved under section 240 of the Immigration and Nation18 ality Act (8 U.S.C. 1229a). 

19 (d) PAYMENT OF TAXES.— 

20 (1) IN GENERAL.—Not later than the date on 

21 which an alien’s status is adjusted under this sec22 tion, the alien shall establish that the alien does not 

23 owe any applicable Federal tax liability by estab24 lishing that— 

25 (A) no such tax liability exists; 


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1 (B) all such outstanding tax liabilities have 

2 been paid; or 

3 (C) the alien has entered into an agree4 ment for payment of all outstanding liabilities 

5 with the Internal Revenue Service. 

6 (2) APPLICABLE FEDERAL TAX LIABILITY.—In 

7 paragraph (1) the term ‘‘applicable Federal tax li8 ability’’ means liability for Federal taxes, including 

9 penalties and interest, owed for any year during the 

10 period of employment required under subsection 

11 (a)(1) for which the statutory period for assessment 

12 of any deficiency for such taxes has not expired. 

13 (3) IRS COOPERATION.—The Secretary of the 

14 Treasury shall establish rules and procedures under 

15 which the Commissioner of Internal Revenue shall 

16 provide documentation to an alien upon request to 

17 establish the payment of all taxes required by this 

18 subsection. 

19 (e) SPOUSES AND MINOR CHILDREN.— 

20 (1) IN GENERAL.—Notwithstanding any other 

21 provision of law, the Secretary shall confer the sta22 tus of lawful permanent resident on the spouse and 

23 minor child of an alien granted any adjustment of 

24 status under subsection (a), including any individual 

25 who was a minor child on the date such alien was 


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1 granted blue card status, if the spouse or minor 

2 child applies for such status, or if the principal alien 

3 includes the spouse or minor child in an application 

4 for adjustment of status to that of a lawful perma5 nent resident. 

6 (2) TREATMENT OF SPOUSES AND MINOR CHIL7 DREN.— 

8 (A) GRANTING OF STATUS AND RE9 MOVAL.—The Secretary shall grant derivative 

10 status to the alien spouse and any minor child 

11 residing in the United States of an alien grant12 ed blue card status and shall not remove such 

13 derivative spouse or child during the period that 

14 the alien granted blue card status maintains 

15 such status, except as provided in paragraph 

16 (3). A grant of derivative status to such a 

17 spouse or child under this subparagraph shall 

18 not decrease the number of aliens who may re19 ceive blue card status under subsection (h) of 

20 section 101. 

21 (B) TRAVEL.—The derivative spouse and 

22 any minor child of an alien granted blue card 

23 status may travel outside the United States in 

24 the same manner as an alien lawfully admitted 

25 for permanent residence. 


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1 (C) EMPLOYMENT.—The derivative spouse 

2 of an alien granted blue card status may apply 

3 to the Secretary for a work permit to authorize 

4 such spouse to engage in any lawful employ5 ment in the United States while such alien 

6 maintains blue card status. 

7 (3) GROUNDS FOR DENIAL OF ADJUSTMENT OF

8 STATUS AND REMOVAL.—The Secretary shall deny 

9 an alien spouse or child adjustment of status under 

10 paragraph (1) and may remove such spouse or child 

11 under section 240 of the Immigration and Nation12 ality Act (8 U.S.C. 1229a) if the spouse or child— 

13 (A) commits an act that makes the alien 

14 spouse or child inadmissible to the United 

15 States under section 212 of such Act (8 U.S.C. 

16 1182), except as provided under section 105(b); 

17 (B) is convicted of a felony or 3 or more 

18 misdemeanors committed in the United States; 

19 or 

20 (C) is convicted of an offense, an element 

21 of which involves bodily injury, threat of serious 

22 bodily injury, or harm to property in excess of 

23 $500. 

24 SEC. 434. APPLICATIONS. 

25 (a) SUBMISSION.—The Secretary shall provide that— 


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1 (1) applications for blue card status may be 

2 submitted— 

3 (A) to the Secretary if the applicant is rep4 resented by an attorney or a nonprofit religious, 

5 charitable, social service, or similar organization 

6 recognized by the Board of Immigration Ap7 peals under section 292.2 of title 8, Code of 

8 Federal Regulations; or 

9 (B) to a qualified designated entity if the 

10 applicant consents to the forwarding of the ap11 plication to the Secretary; and 

12 (2) applications for adjustment of status under 

13 section 103 shall be filed directly with the Secretary. 

14 (b) QUALIFIED DESIGNATED ENTITY DEFINED.—In 

15 this section, the term ‘‘qualified designated entity’’ 

16 means— 

17 (1) a qualified farm labor organization or an 

18 association of employers designated by the Sec19 retary; or 

20 (2) any such other person designated by the 

21 Secretary if that Secretary determines such person 

22 is qualified and has substantial experience, dem23 onstrated competence, and has a history of long24 term involvement in the preparation and submission 

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1 tion 209, 210, or 245 of the Immigration and Na2 tionality Act (8 U.S.C. 1159, 1160, and 1255), the 

3 Act entitled ‘‘An Act to adjust the status of Cuban 

4 refugees to that of lawful permanent residents of the 

5 United States, and for other purposes’’, approved 

6 November 2, 1966 (Public Law 89–732; 8 U.S.C. 

7 1255 note), Public Law 95–145 (8 U.S.C. 1255 

8 note), or the Immigration Reform and Control Act 

9 of 1986 (Public Law 99–603; 100 Stat. 3359) or 

10 any amendment made by that Act. 

11 (c) PROOF OF ELIGIBILITY.— 

12 (1) IN GENERAL.—An alien may establish that 

13 the alien meets the requirement of section 101(a)(1) 

14 or 103(a)(1) through government employment 

15 records or records supplied by employers or collec16 tive bargaining organizations, and other reliable doc17 umentation as the alien may provide. The Secretary 

18 shall establish special procedures to properly credit 

19 work in cases in which an alien was employed under 

20 an assumed name. 

21 (2) DOCUMENTATION OF WORK HISTORY.— 

22 (A) BURDEN OF PROOF.—An alien apply23 ing for status under section 101(a) or 103(a) 

24 has the burden of proving by a preponderance 

25 of the evidence that the alien has worked the 


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1 requisite number of hours or days required 

2 under section 101(a)(1) or 103(a)(1), as appli3 cable. 

4 (B) TIMELY PRODUCTION OF RECORDS.— 

5 If an employer or farm labor contractor employ6 ing such an alien has kept proper and adequate 

7 records respecting such employment, the alien’s 

8 burden of proof under subparagraph (A) may 

9 be met by securing timely production of those 

10 records under regulations to be promulgated by 

11 the Secretary. 

12 (C) SUFFICIENT EVIDENCE.—An alien 

13 may meet the burden of proof under subpara14 graph (A) to establish that the alien has per15 formed the days or hours of work required by 

16 section 101(a)(1) or 103(a)(1) by producing 

17 sufficient evidence to show the extent of that 

18 employment as a matter of just and reasonable 

19 inference. 

20 (d) APPLICATIONS SUBMITTED TO QUALIFIED DES21 IGNATED ENTITIES.— 

22 (1) REQUIREMENTS.—Each qualified des23 ignated entity shall agree— 

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1 section (a)(1)(B) if the applicant has consented 

2 to such forwarding; 

3 (B) not to forward to the Secretary any 

4 such application if the applicant has not con5 sented to such forwarding; and 

6 (C) to assist an alien in obtaining docu7 mentation of the alien’s work history, if the 

8 alien requests such assistance. 

9 (2) NO AUTHORITY TO MAKE DETERMINA10 TIONS.—No qualified designated entity may make a 

11 determination required by this subtitle to be made 

12 by the Secretary. 

13 (e) LIMITATION ON ACCESS TO INFORMATION.—Files 

14 and records collected or compiled by a qualified designated 

15 entity for the purposes of this section are confidential and 

16 the Secretary shall not have access to such a file or record 

17 relating to an alien without the consent of the alien, except 

18 as allowed by a court order issued pursuant to subsection 

19 (f). 

20 (f) CONFIDENTIALITY OF INFORMATION.— 

21 (1) IN GENERAL.—Except as otherwise pro22 vided in this section, the Secretary or any other offi23 cial or employee of the Department or a bureau or 

24 agency of the Department is prohibited from— 


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1 (A) using information furnished by the ap2 plicant pursuant to an application filed under 

3 this subtitle, the information provided by an ap4 plicant to a qualified designated entity, or any 

5 information provided by an employer or former 

6 employer for any purpose other than to make a 

7 determination on the application or for impos8 ing the penalties described in subsection (g); 

9 (B) making any publication in which the 

10 information furnished by any particular indi11 vidual can be identified; or 

12 (C) permitting a person other than a 

13 sworn officer or employee of the Department or 

14 a bureau or agency of the Department or, with 

15 respect to applications filed with a qualified 

16 designated entity, that qualified designated en17 tity, to examine individual applications. 

18 (2) REQUIRED DISCLOSURES.—The Secretary 

19 shall provide the information furnished under this 

20 subtitle or any other information derived from such 

21 furnished information to— 

22 (A) a duly recognized law enforcement en23 tity in connection with a criminal investigation 

24 or prosecution, if such information is requested 

25 in writing by such entity; or 


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1 (B) an official coroner, for purposes of af2 firmatively identifying a deceased individual, 

3 whether or not the death of such individual re4 sulted from a crime. 

5 (3) CONSTRUCTION.— 

6 (A) IN GENERAL.—Nothing in this sub7 section shall be construed to limit the use, or 

8 release, for immigration enforcement purposes 

9 or law enforcement purposes, of information 

10 contained in files or records of the Department 

11 pertaining to an application filed under this sec12 tion, other than information furnished by an 

13 applicant pursuant to the application, or any 

14 other information derived from the application, 

15 that is not available from any other source. 

16 (B) CRIMINAL CONVICTIONS.—Notwith17 standing any other provision of this subsection, 

18 information concerning whether the alien apply19 ing for blue card status or an adjustment of 

20 status under section 103 has been convicted of 

21 a crime at any time may be used or released for 

22 immigration enforcement or law enforcement 

23 purposes. 

24 (4) CRIME.—Any person who knowingly uses, 

25 publishes, or permits information to be examined in 


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1 violation of this subsection shall be subject to a fine 

2 in an amount not to exceed $10,000. 

3 (g) PENALTIES FOR FALSE STATEMENTS IN APPLI4 CATIONS.— 

5 (1) CRIMINAL PENALTY.—Any person who— 

6 (A) files an application for blue card status 

7 or an adjustment of status under section 103 

8 and knowingly and willfully falsifies, conceals, 

9 or covers up a material fact or makes any false, 

10 fictitious, or fraudulent statements or represen11 tations, or makes or uses any false writing or 

12 document knowing the same to contain any 

13 false, fictitious, or fraudulent statement or 

14 entry; or 

15 (B) creates or supplies a false writing or 

16 document for use in making such an applica17 tion, 

18 shall be fined in accordance with title 18, United 

19 States Code, imprisoned not more than 5 years, or 

20 both. 

21 (2) INADMISSIBILITY.—An alien who is con22 victed of a crime under paragraph (1) shall be con23 sidered to be inadmissible to the United States on 

24 the ground described in section 212(a)(6)(C)(i) of 


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1 the Immigration and Nationality Act (8 U.S.C. 

2 1182(a)(6)(C)(i)). 

3 (h) ELIGIBILITY FOR LEGAL SERVICES.—Section 

4 504(a)(11) of Public Law 104–134 (110 Stat. 1321–53 

5 et seq.) shall not be construed to prevent a recipient of 

6 funds under the Legal Services Corporation Act (42 

7 U.S.C. 2996 et seq.) from providing legal assistance di8 rectly related to an application for blue card status or an 

9 adjustment of status under section 103. 

10 (i) APPLICATION FEES.— 

11 (1) FEE SCHEDULE.—The Secretary shall pro12 vide for a schedule of fees that— 

13 (A) shall be charged for the filing of an 

14 application for blue card status or for an ad15 justment of status under section 103; and 

16 (B) may be charged by qualified des17 ignated entities to help defray the costs of serv18 ices provided to such applicants. 

19 (2) PROHIBITION ON EXCESS FEES BY QUALI20 FIED DESIGNATED ENTITIES.—A qualified des21 ignated entity may not charge any fee in excess of, 

22 or in addition to, the fees authorized under para23 graph (1)(B) for services provided to applicants. 

24 (3) DISPOSITION OF FEES.— 


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1 (A) IN GENERAL.—There is established in 

2 the general fund of the Treasury a separate ac3 count, which shall be known as the ‘‘Agricul4 tural Worker Immigration Status Adjustment 

5 Account’’. Notwithstanding any other provision 

6 of law, there shall be deposited as offsetting re7 ceipts into the account all fees collected under 

8 paragraph (1)(A). 

9 (B) USE OF FEES FOR APPLICATION PROC10 ESSING.—Amounts deposited in the ‘‘Agricul11 tural Worker Immigration Status Adjustment 

12 Account’’ shall remain available to the Sec13 retary until expended for processing applica14 tions for blue card status or an adjustment of 

15 status under section 103. 

16 SEC. 435. WAIVER OF NUMERICAL LIMITATIONS AND CER17 TAIN GROUNDS FOR INADMISSIBILITY. 

18 (a) NUMERICAL LIMITATIONS DO NOT APPLY.—The 

19 numerical limitations of sections 201 and 202 of the Im20 migration and Nationality Act (8 U.S.C. 1151 and 1152) 

21 shall not apply to the adjustment of aliens to lawful per22 manent resident status under section 103. 

23 (b) WAIVER OF CERTAIN GROUNDS OF INADMIS24 SIBILITY.—In the determination of an alien’s eligibility for 

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1 justment of status under section 103(b)(2)(A) the fol2 lowing rules shall apply: 

3 (1) GROUNDS OF EXCLUSION NOT APPLICA4 BLE.—The provisions of paragraphs (5), (6)(A), (7), 

5 and (9) of section 212(a) of the Immigration and 

6 Nationality Act (8 U.S.C. 1182(a)) shall not apply. 

7 (2) WAIVER OF OTHER GROUNDS.— 

8 (A) IN GENERAL.—Except as provided in 

9 subparagraph (B), the Secretary may waive any 

10 other provision of such section 212(a) in the 

11 case of individual aliens for humanitarian pur12 poses, to ensure family unity, or if otherwise in 

13 the public interest. 

14 (B) GROUNDS THAT MAY NOT BE

15 WAIVED.—Subparagraphs (A), (B), (C), (D), 

16 (G), (H), and (I) of paragraph (2) and para17 graphs (3) and (4) of such section 212(a) may 

18 not be waived by the Secretary under subpara19 graph (A). 

20 (C) CONSTRUCTION.—Nothing in this 

21 paragraph shall be construed as affecting the 

22 authority of the Secretary other than under this 

23 subparagraph to waive provisions of such sec24 tion 212(a). 


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1 (3) SPECIAL RULE FOR DETERMINATION OF

2 PUBLIC CHARGE.—An alien is not ineligible for blue 

3 card status or an adjustment of status under section 

4 103 by reason of a ground of inadmissibility under 

5 section 212(a)(4) of the Immigration and Nation6 ality Act (8 U.S.C. 1182(a)(4)) if the alien dem7 onstrates a history of employment in the United 

8 States evidencing self-support without reliance on 

9 public cash assistance. 

10 (c) TEMPORARY STAY OF REMOVAL AND WORK AU11 THORIZATION FOR CERTAIN APPLICANTS.— 

12 (1) BEFORE APPLICATION PERIOD.—Effective 

13 on the date of enactment of this Act, the Secretary 

14 shall provide that, in the case of an alien who is ap15 prehended before the beginning of the application 

16 period described in section 101(a)(2) and who can 

17 establish a nonfrivolous case of eligibility for blue 

18 card status (but for the fact that the alien may not 

19 apply for such status until the beginning of such pe20 riod), until the alien has had the opportunity during 

21 the first 30 days of the application period to com22 plete the filing of an application for blue card status, 

23 the alien— 

24 (A) may not be removed; and 


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1 (B) shall be granted authorization to en2 gage in employment in the United States and 

3 be provided an employment authorized endorse4 ment or other appropriate work permit for such 

5 purpose. 

6 (2) DURING APPLICATION PERIOD.—The Sec7 retary shall provide that, in the case of an alien who 

8 presents a nonfrivolous application for blue card sta9 tus during the application period described in section 

10 101(a)(2), including an alien who files such an ap11 plication within 30 days of the alien’s apprehension, 

12 and until a final determination on the application 

13 has been made in accordance with this section, the 

14 alien— 

15 (A) may not be removed; and 

16 (B) shall be granted authorization to en17 gage in employment in the United States and 

18 be provided an employment authorized endorse19 ment or other appropriate work permit for such 

20 purpose. 

21 SEC. 436. ADMINISTRATIVE AND JUDICIAL REVIEW. 

22 (a) IN GENERAL.—There shall be no administrative 

23 or judicial review of a determination respecting an applica24 tion for blue card status or adjustment of status under 

25 section 103 except in accordance with this section. 


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1 (b) ADMINISTRATIVE REVIEW.— 

2 (1) SINGLE LEVEL OF ADMINISTRATIVE APPEL3 LATE REVIEW.—The Secretary shall establish an ap4 pellate authority to provide for a single level of ad5 ministrative appellate review of such a determina6 tion. 

7 (2) STANDARD FOR REVIEW.—Such administra8 tive appellate review shall be based solely upon the 

9 administrative record established at the time of the 

10 determination on the application and upon such ad11 ditional or newly discovered evidence as may not 

12 have been available at the time of the determination. 

13 (c) JUDICIAL REVIEW.— 

14 (1) LIMITATION TO REVIEW OF REMOVAL.— 

15 There shall be judicial review of such a determina16 tion only in the judicial review of an order of re17 moval under section 242 of the Immigration and 

18 Nationality Act (8 U.S.C. 1252). 

19 (2) STANDARD FOR JUDICIAL REVIEW.—Such 

20 judicial review shall be based solely upon the admin21 istrative record established at the time of the review 

22 by the appellate authority and the findings of fact 

23 and determinations contained in such record shall be 

24 conclusive unless the applicant can establish abuse 

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1 trary to clear and convincing facts contained in the 

2 record considered as a whole. 

3 SEC. 437. USE OF INFORMATION. 

4 Beginning not later than the first day of the applica5 tion period described in section 101(a)(2), the Secretary, 

6 in cooperation with qualified designated entities (as that 

7 term is defined in section 104(b)), shall broadly dissemi8 nate information respecting the benefits that aliens may 

9 receive under this subtitle and the requirements that an 

10 alien is required to meet to receive such benefits. 

11 SEC. 438. REGULATIONS, EFFECTIVE DATE, AUTHORIZA12 TION OF APPROPRIATIONS. 

13 (a) REGULATIONS.—The Secretary shall issue regula14 tions to implement this subtitle not later than the first 

15 day of the seventh month that begins after the date of 

16 enactment of this Act. 

17 (b) EFFECTIVE DATE.—This subtitle shall take effect 

18 on the date that regulations required by subsection (a) are 

19 issued, regardless of whether such regulations are issued 

20 on an interim basis or on any other basis. 

21 (c) AUTHORIZATION OF APPROPRIATIONS.—There 

22 are authorized to be appropriated to the Secretary such 

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1 tiation of such implementation, for fiscal years 2009 and 

2 2010. 

3 Subchapter B—Correction of Social Security 

4 Records 

5 SEC. 441. CORRECTION OF SOCIAL SECURITY RECORDS. 

6 (a) IN GENERAL.—Section 208(e)(1) of the Social 

7 Security Act (42 U.S.C. 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) who is granted blue card status under the 

15 Agricultural Job Opportunities, Benefits, and Secu16 rity Act of 2009’’; 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 be20 fore the date on which the alien was granted blue 

21 card status.’’. 

22 (b) EFFECTIVE DATE.—The amendments made by 

23 subsection (a) shall take effect on the first day of the sev24 enth month that begins after the date of the enactment 

25 of this Act. 


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1 CHAPTER 3—REFORM OF H–2A WORKER 

2 PROGRAM 

3 SEC. 451. AMENDMENTS TO THE IMMIGRATION AND NA4 TIONALITY ACT. 

5 (a) IN GENERAL.—Title II of the Immigration and 

6 Nationality Act (8 U.S.C. 1151 et seq.) is amended by 

7 striking section 218 and inserting the following: 

8 ‘‘SEC. 218. H–2A EMPLOYER APPLICATIONS. 

9 ‘‘(a) APPLICATIONS TO THE SECRETARY OF

10 LABOR.— 

11 ‘‘(1) IN GENERAL.—No alien may be admitted 

12 to the United States as an H–2A worker, or other13 wise provided status as an H–2A worker, unless the 

14 employer has filed with the Secretary of Labor an 

15 application containing— 

16 ‘‘(A) the assurances described in sub17 section (b); 

18 ‘‘(B) a description of the nature and loca19 tion of the work to be performed; 

20 ‘‘(C) the anticipated period (expected be21 ginning and ending dates) for which the work22 ers will be needed; and 

23 ‘‘(D) the number of job opportunities in 

24 which the employer seeks to employ the work25 ers. 


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1 ‘‘(2) ACCOMPANIED BY JOB OFFER.—Each ap2 plication filed under paragraph (1) shall be accom3 panied by a copy of the job offer describing the 

4 wages and other terms and conditions of employ5 ment and the bona fide occupational qualifications 

6 that shall be possessed by a worker to be employed 

7 in the job opportunity in question. 

8 ‘‘(b) ASSURANCES FOR INCLUSION IN APPLICA9 TIONS.—The assurances referred to in subsection (a)(1) 

10 are the following: 

11 ‘‘(1) JOB OPPORTUNITIES COVERED BY COL12 LECTIVE BARGAINING AGREEMENTS.—With respect 

13 to a job opportunity that is covered under a collec14 tive bargaining agreement: 

15 ‘‘(A) UNION CONTRACT DESCRIBED.—The 

16 job opportunity is covered by a union contract 

17 which was negotiated at arm’s length between a 

18 bona fide union and the employer. 

19 ‘‘(B) STRIKE OR LOCKOUT.—The specific 

20 job opportunity for which the employer is re21 questing an H–2A worker is not vacant because 

22 the former occupant is on strike or being locked 

23 out in the course of a labor dispute. 

24 ‘‘(C) NOTIFICATION OF BARGAINING REP25 RESENTATIVES.—The employer, at the time of 


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1 filing the application, has provided notice of the 

2 filing under this paragraph to the bargaining 

3 representative of the employer’s employees in 

4 the occupational classification at the place or 

5 places of employment for which aliens are 

6 sought. 

7 ‘‘(D) TEMPORARY OR SEASONAL JOB OP8 PORTUNITIES.—The job opportunity is tem9 porary or seasonal. 

10 ‘‘(E) OFFERS TO UNITED STATES WORK11 ERS.—The employer has offered or will offer 

12 the job to any eligible United States worker 

13 who applies and is equally or better qualified 

14 for the job for which the nonimmigrant is, or 

15 the nonimmigrants are, sought and who will be 

16 available at the time and place of need. 

17 ‘‘(F) PROVISION OF INSURANCE.—If the 

18 job opportunity is not covered by the State 

19 workers’ compensation law, the employer will 

20 provide, at no cost to the worker, insurance cov21 ering injury and disease arising out of, and in 

22 the course of, the worker’s employment which 

23 will provide benefits at least equal to those pro24 vided under the State’s workers’ compensation 

25 law for comparable employment. 


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1 ‘‘(2) JOB OPPORTUNITIES NOT COVERED BY

2 COLLECTIVE BARGAINING AGREEMENTS.—With re3 spect to a job opportunity that is not covered under 

4 a collective bargaining agreement: 

5 ‘‘(A) STRIKE OR LOCKOUT.—The specific 

6 job opportunity for which the employer has ap7 plied for an H–2A worker is not vacant because 

8 the former occupant is on strike or being locked 

9 out in the course of a labor dispute. 

10 ‘‘(B) TEMPORARY OR SEASONAL JOB OP11 PORTUNITIES.—The job opportunity is tem12 porary or seasonal. 

13 ‘‘(C) BENEFIT, WAGE, AND WORKING CON14 DITIONS.—The employer will provide, at a min15 imum, the benefits, wages, and working condi16 tions required by section 218A to all workers 

17 employed in the job opportunities for which the 

18 employer has applied for an H–2A worker 

19 under subsection (a) and to all other workers in 

20 the same occupation at the place of employ21 ment. 

22 ‘‘(D) NONDISPLACEMENT OF UNITED

23 STATES WORKERS.—The employer did not dis24 place and will not displace a United States 

25 worker employed by the employer during the 


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1 period of employment and for a period of 30 

2 days preceding the period of employment in the 

3 occupation at the place of employment for 

4 which the employer has applied for an H–2A 

5 worker. 

6 ‘‘(E) REQUIREMENTS FOR PLACEMENT OF

7 THE NONIMMIGRANT WITH OTHER EMPLOY8 ERS.—The employer will not place the non9 immigrant with another employer unless— 

10 ‘‘(i) the nonimmigrant performs du11 ties in whole or in part at 1 or more work12 sites owned, operated, or controlled by 

13 such other employer; 

14 ‘‘(ii) there are indicia of an employ15 ment relationship between the non16 immigrant and such other employer; and 

17 ‘‘(iii) the employer has inquired of the 

18 other employer as to whether, and has no 

19 actual knowledge or notice that, during the 

20 period of employment and for a period of 

21 30 days preceding the period of employ22 ment, the other employer has displaced or 

23 intends to displace a United States worker 

24 employed by the other employer in the oc25 cupation at the place of employment for 


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1 which the employer seeks approval to em2 ploy H–2A workers. 

3 ‘‘(F) STATEMENT OF LIABILITY.—The ap4 plication form shall include a clear statement 

5 explaining the liability under subparagraph (E) 

6 of an employer if the other employer described 

7 in such subparagraph displaces a United States 

8 worker as described in such subparagraph. 

9 ‘‘(G) PROVISION OF INSURANCE.—If the 

10 job opportunity is not covered by the State 

11 workers’ compensation law, the employer will 

12 provide, at no cost to the worker, insurance cov13 ering injury and disease arising out of and in 

14 the course of the worker’s employment which 

15 will provide benefits at least equal to those pro16 vided under the State’s workers’ compensation 

17 law for comparable employment. 

18 ‘‘(H) EMPLOYMENT OF UNITED STATES

19 WORKERS.— 

20 ‘‘(i) RECRUITMENT.—The employer 

21 has taken or will take the following steps 

22 to recruit United States workers for the 

23 job opportunities for which the H–2A non24 immigrant is, or H–2A nonimmigrants are, 

25 sought: 


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1 ‘‘(I) CONTACTING FORMER

2 WORKERS.—The employer shall make 

3 reasonable efforts through the sending 

4 of a letter by United States Postal 

5 Service mail, or otherwise, to contact 

6 any United States worker the em7 ployer employed during the previous 

8 season in the occupation at the place 

9 of intended employment for which the 

10 employer is applying for workers and 

11 has made the availability of the em12 ployer’s job opportunities in the occu13 pation at the place of intended em14 ployment known to such previous 

15 workers, unless the worker was termi16 nated from employment by the em17 ployer for a lawful job-related reason 

18 or abandoned the job before the work19 er completed the period of employ20 ment of the job opportunity for which 

21 the worker was hired. 

22 ‘‘(II) FILING A JOB OFFER WITH

23 THE LOCAL OFFICE OF THE STATE

24 EMPLOYMENT SECURITY AGENCY.— 

25 Not later than 28 days before the 


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1 date on which the employer desires to 

2 employ an H–2A worker in a tem3 porary or seasonal agricultural job op4 portunity, the employer shall submit a 

5 copy of the job offer described in sub6 section (a)(2) to the local office of the 

7 State employment security agency 

8 which serves the area of intended em9 ployment and authorize the posting of 

10 the job opportunity on ‘America’s Job 

11 Bank’ or other electronic job registry, 

12 except that nothing in this subclause 

13 shall require the employer to file an 

14 interstate job order under section 653 

15 of title 20, Code of Federal Regula16 tions. 

17 ‘‘(III) ADVERTISING OF JOB OP18 PORTUNITIES.—Not later than 14 

19 days before the date on which the em20 ployer desires to employ an H–2A 

21 worker in a temporary or seasonal ag22 ricultural job opportunity, the em23 ployer shall advertise the availability 

24 of the job opportunities for which the 

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1 lication in the local labor market that 

2 is likely to be patronized by potential 

3 farm workers. 

4 ‘‘(IV) EMERGENCY PROCE5 DURES.—The Secretary of Labor 

6 shall, by regulation, provide a proce7 dure for acceptance and approval of 

8 applications in which the employer 

9 has not complied with the provisions 

10 of this subparagraph because the em11 ployer’s need for H–2A workers could 

12 not reasonably have been foreseen. 

13 ‘‘(ii) JOB OFFERS.—The employer has 

14 offered or will offer the job to any eligible 

15 United States worker who applies and is 

16 equally or better qualified for the job for 

17 which the nonimmigrant is, or non18 immigrants are, sought and who will be 

19 available at the time and place of need. 

20 ‘‘(iii) PERIOD OF EMPLOYMENT.—The 

21 employer will provide employment to any 

22 qualified United States worker who applies 

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1 ployment and ending on the date on which 

2 50 percent of the period of employment for 

3 which the H–2A worker who is in the job 

4 was hired has elapsed, subject to the fol5 lowing requirements: 

6 ‘‘(I) PROHIBITION.—No person 

7 or entity shall willfully and knowingly 

8 withhold United States workers before 

9 the arrival of H–2A workers in order 

10 to force the hiring of United States 

11 workers under this clause. 

12 ‘‘(II) COMPLAINTS.—Upon re13 ceipt of a complaint by an employer 

14 that a violation of subclause (I) has 

15 occurred, the Secretary of Labor shall 

16 immediately investigate. The Sec17 retary of Labor shall, within 36 hours 

18 of the receipt of the complaint, issue 

19 findings concerning the alleged viola20 tion. If the Secretary of Labor finds 

21 that a violation has occurred, the Sec22 retary of Labor shall immediately sus23 pend the application of this clause 

24 with respect to that certification for 

25 that date of need. 


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1 ‘‘(III) PLACEMENT OF UNITED

2 STATES WORKERS.—Before referring 

3 a United States worker to an em4 ployer during the period described in 

5 the matter preceding subclause (I), 

6 the Secretary of Labor shall make all 

7 reasonable efforts to place the United 

8 States worker in an open job accept9 able to the worker, if there are other 

10 job offers pending with the job service 

11 that offer similar job opportunities in 

12 the area of intended employment. 

13 ‘‘(iv) STATUTORY CONSTRUCTION.— 

14 Nothing in this subparagraph shall be con15 strued to prohibit an employer from using 

16 such legitimate selection criteria relevant 

17 to the type of job that are normal or cus18 tomary to the type of job involved so long 

19 as such criteria are not applied in a dis20 criminatory manner. 

21 ‘‘(c) APPLICATIONS BY ASSOCIATIONS ON BEHALF

22 OF EMPLOYER MEMBERS.— 

23 ‘‘(1) IN GENERAL.—An agricultural association 

24 may file an application under subsection (a) on be25 half of 1 or more of its employer members that the 


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1 association certifies in its application has or have 

2 agreed in writing to comply with the requirements of 

3 this section and sections 218A, 218B, and 218C. 

4 ‘‘(2) TREATMENT OF ASSOCIATIONS ACTING AS

5 EMPLOYERS.—If an association filing an application 

6 under paragraph (1) is a joint or sole employer of 

7 the temporary or seasonal agricultural workers re8 quested on the application, the certifications granted 

9 under subsection (e)(2)(B) to the association may be 

10 used for the certified job opportunities of any of its 

11 producer members named on the application, and 

12 such workers may be transferred among such pro13 ducer members to perform the agricultural services 

14 of a temporary or seasonal nature for which the cer15 tifications were granted. 

16 ‘‘(d) WITHDRAWAL OF APPLICATIONS.— 

17 ‘‘(1) IN GENERAL.—An employer may withdraw 

18 an application filed pursuant to subsection (a), ex19 cept that if the employer is an agricultural associa20 tion, the association may withdraw an application 

21 filed pursuant to subsection (a) with respect to 1 or 

22 more of its members. To withdraw an application, 

23 the employer or association shall notify the Sec24 retary of Labor in writing, and the Secretary of 

25 Labor shall acknowledge in writing the receipt of 


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1 such withdrawal notice. An employer who withdraws 

2 an application under subsection (a), or on whose be3 half an application is withdrawn, is relieved of the 

4 obligations undertaken in the application. 

5 ‘‘(2) LIMITATION.—An application may not be 

6 withdrawn while any alien provided status under sec7 tion 101(a)(15)(H)(ii)(a) pursuant to such applica8 tion is employed by the employer. 

9 ‘‘(3) OBLIGATIONS UNDER OTHER STATUTES.— 

10 Any obligation incurred by an employer under any 

11 other law or regulation as a result of the recruit12 ment of United States workers or H–2A workers 

13 under an offer of terms and conditions of employ14 ment required as a result of making an application 

15 under subsection (a) is unaffected by withdrawal of 

16 such application. 

17 ‘‘(e) REVIEW AND APPROVAL OF APPLICATIONS.— 

18 ‘‘(1) RESPONSIBILITY OF EMPLOYERS.—The 

19 employer shall make available for public examina20 tion, within 1 working day after the date on which 

21 an application under subsection (a) is filed, at the 

22 employer’s principal place of business or worksite, a 

23 copy of each such application (and such accom24 panying documents as are necessary). 


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1 ‘‘(2) RESPONSIBILITY OF THE SECRETARY OF

2 LABOR.— 

3 ‘‘(A) COMPILATION OF LIST.—The Sec4 retary of Labor shall compile, on a current 

5 basis, a list (by employer and by occupational 

6 classification) of the applications filed under 

7 subsection (a). Such list shall include the wage 

8 rate, number of workers sought, period of in9 tended employment, and date of need. The Sec10 retary of Labor shall make such list available 

11 for examination in the District of Columbia. 

12 ‘‘(B) REVIEW OF APPLICATIONS.—The 

13 Secretary of Labor shall review such an applica14 tion only for completeness and obvious inac15 curacies. Unless the Secretary of Labor finds 

16 that the application is incomplete or obviously 

17 inaccurate, the Secretary of Labor shall certify 

18 that the intending employer has filed with the 

19 Secretary of Labor an application as described 

20 in subsection (a). Such certification shall be 

21 provided within 7 days of the filing of the appli22 cation.’’ 

23 ‘‘SEC. 218A. H–2A EMPLOYMENT REQUIREMENTS. 

24 ‘‘(a) PREFERENTIAL TREATMENT OF ALIENS PRO25 HIBITED.—Employers seeking to hire United States workVerDate Nov 24 2008 00:39 Dec 17, 2009 Jkt 089200 PO 00000 Frm 00438 Fmt 6652 Sfmt 6201 E:\BILLS\H4321.IH H4321

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1 ers shall offer the United States workers no less than the 

2 same benefits, wages, and working conditions that the em3 ployer is offering, intends to offer, or will provide to H– 

4 2A workers. Conversely, no job offer may impose on 

5 United States workers any restrictions or obligations 

6 which will not be imposed on the employer’s H–2A work7 ers. 

8 ‘‘(b) MINIMUM BENEFITS, WAGES, AND WORKING

9 CONDITIONS.—Except in cases where higher benefits, 

10 wages, or working conditions are required by the provi11 sions of subsection (a), in order to protect similarly em12 ployed United States workers from adverse effects with 

13 respect to benefits, wages, and working conditions, every 

14 job offer which shall accompany an application under sec15 tion 218(b)(2) shall include each of the following benefit, 

16 wage, and working condition provisions: 

17 ‘‘(1) REQUIREMENT TO PROVIDE HOUSING OR A

18 HOUSING ALLOWANCE.— 

19 ‘‘(A) IN GENERAL.—An employer applying 

20 under section 218(a) for H–2A workers shall 

21 offer to provide housing at no cost to all work22 ers in job opportunities for which the employer 

23 has applied under that section and to all other 

24 workers in the same occupation at the place of 


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1 employment, whose place of residence is beyond 

2 normal commuting distance. 

3 ‘‘(B) TYPE OF HOUSING.—In complying 

4 with subparagraph (A), an employer may, at 

5 the employer’s election, provide housing that 

6 meets applicable Federal standards for tem7 porary labor camps or secure housing that 

8 meets applicable local standards for rental or 

9 public accommodation housing or other sub10 stantially similar class of habitation, or in the 

11 absence of applicable local standards, State 

12 standards for rental or public accommodation 

13 housing or other substantially similar class of 

14 habitation. In the absence of applicable local or 

15 State standards, Federal temporary labor camp 

16 standards shall apply. 

17 ‘‘(C) FAMILY HOUSING.—If it is the pre18 vailing practice in the occupation and area of 

19 intended employment to provide family housing, 

20 family housing shall be provided to workers 

21 with families who request it. 

22 ‘‘(D) WORKERS ENGAGED IN THE RANGE

23 PRODUCTION OF LIVESTOCK.—The Secretary of 

24 Labor shall issue regulations that address the 

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1 ing to workers engaged in the range production 

2 of livestock. 

3 ‘‘(E) LIMITATION.—Nothing in this para4 graph shall be construed to require an employer 

5 to provide or secure housing for persons who 

6 were not entitled to such housing under the 

7 temporary labor certification regulations in ef8 fect on June 1, 1986. 

9 ‘‘(F) CHARGES FOR HOUSING.— 

10 ‘‘(i) CHARGES FOR PUBLIC HOUS11 ING.—If public housing provided for mi12 grant agricultural workers under the aus13 pices of a local, county, or State govern14 ment is secured by an employer, and use of 

15 the public housing unit normally requires 

16 charges from migrant workers, such 

17 charges shall be paid by the employer di18 rectly to the appropriate individual or enti19 ty affiliated with the housing’s manage20 ment. 

21 ‘‘(ii) DEPOSIT CHARGES.—Charges in 

22 the form of deposits for bedding or other 

23 similar incidentals related to housing shall 

24 not be levied upon workers by employers 

25 who provide housing for their workers. An 


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1 employer may require a worker found to 

2 have been responsible for damage to such 

3 housing which is not the result of normal 

4 wear and tear related to habitation to re5 imburse the employer for the reasonable 

6 cost of repair of such damage. 

7 ‘‘(G) HOUSING ALLOWANCE AS ALTER8 NATIVE.— 

9 ‘‘(i) IN GENERAL.—If the requirement 

10 set out in clause (ii) is satisfied, the em11 ployer may provide a reasonable housing 

12 allowance instead of offering housing 

13 under subparagraph (A). Upon the request 

14 of a worker seeking assistance in locating 

15 housing, the employer shall make a good 

16 faith effort to assist the worker in identi17 fying and locating housing in the area of 

18 intended employment. An employer who of19 fers a housing allowance to a worker, or 

20 assists a worker in locating housing which 

21 the worker occupies, pursuant to this 

22 clause shall not be deemed a housing pro23 vider under section 203 of the Migrant and 

24 Seasonal Agricultural Worker Protection 

25 Act (29 U.S.C. 1823) solely by virtue of 


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1 providing such housing allowance. No 

2 housing allowance may be used for housing 

3 which is owned or controlled by the em4 ployer. 

5 ‘‘(ii) CERTIFICATION.—The require6 ment of this clause is satisfied if the Gov7 ernor of the State certifies to the Secretary 

8 of Labor that there is adequate housing 

9 available in the area of intended employ10 ment for migrant farm workers and H–2A 

11 workers who are seeking temporary hous12 ing while employed in agricultural work. 

13 Such certification shall expire after 3 years 

14 unless renewed by the Governor of the 

15 State. 

16 ‘‘(iii) AMOUNT OF ALLOWANCE.— 

17 ‘‘(I) NONMETROPOLITAN COUN18 TIES.—If the place of employment of 

19 the workers provided an allowance 

20 under this subparagraph is a non21 metropolitan county, the amount of 

22 the housing allowance under this sub23 paragraph shall be equal to the state24 wide average fair market rental for 

25 existing housing for nonmetropolitan 


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1 counties for the State, as established 

2 by the Secretary of Housing and 

3 Urban Development pursuant to sec4 tion 8(c) of the United States Hous5 ing Act of 1937 (42 U.S.C. 1437f(c)), 

6 based on a 2-bedroom dwelling unit 

7 and an assumption of 2 persons per 

8 bedroom. 

9 ‘‘(II) METROPOLITAN COUN10 TIES.—If the place of employment of 

11 the workers provided an allowance 

12 under this paragraph is in a metro13 politan county, the amount of the 

14 housing allowance under this subpara15 graph shall be equal to the statewide 

16 average fair market rental for existing 

17 housing for metropolitan counties for 

18 the State, as established by the Sec19 retary of Housing and Urban Devel20 opment pursuant to section 8(c) of 

21 the United States Housing Act of 

22 1937 (42 U.S.C. 1437f(c)), based on 

23 a 2-bedroom dwelling unit and an as24 sumption of 2 persons per bedroom. 

25 ‘‘(2) REIMBURSEMENT OF TRANSPORTATION.— 


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1 ‘‘(A) TO PLACE OF EMPLOYMENT.—A 

2 worker who completes 50 percent of the period 

3 of employment of the job opportunity for which 

4 the worker was hired shall be reimbursed by the 

5 employer for the cost of the worker’s transpor6 tation and subsistence from the place from 

7 which the worker came to work for the em8 ployer (or place of last employment, if the 

9 worker traveled from such place) to the place of 

10 employment. 

11 ‘‘(B) FROM PLACE OF EMPLOYMENT.—A 

12 worker who completes the period of employment 

13 for the job opportunity involved shall be reim14 bursed by the employer for the cost of the 

15 worker’s transportation and subsistence from 

16 the place of employment to the place from 

17 which the worker, disregarding intervening em18 ployment, came to work for the employer, or to 

19 the place of next employment, if the worker has 

20 contracted with a subsequent employer who has 

21 not agreed to provide or pay for the worker’s 

22 transportation and subsistence to such subse23 quent employer’s place of employment. 

24 ‘‘(C) LIMITATION.— 


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1 ‘‘(i) AMOUNT OF REIMBURSEMENT.— 

2 Except as provided in clause (ii), the 

3 amount of reimbursement provided under 

4 subparagraph (A) or (B) to a worker or 

5 alien shall not exceed the lesser of— 

6 ‘‘(I) the actual cost to the worker 

7 or alien of the transportation and sub8 sistence involved; or 

9 ‘‘(II) the most economical and 

10 reasonable common carrier transpor11 tation charges and subsistence costs 

12 for the distance involved. 

13 ‘‘(ii) DISTANCE TRAVELED.—No reim14 bursement under subparagraph (A) or (B) 

15 shall be required if the distance traveled is 

16 100 miles or less, or the worker is not re17 siding in employer-provided housing or 

18 housing secured through an allowance as 

19 provided in paragraph (1)(G). 

20 ‘‘(D) EARLY TERMINATION.—If the worker 

21 is laid off or employment is terminated for con22 tract impossibility (as described in paragraph 

23 (4)(D)) before the anticipated ending date of 

24 employment, the employer shall provide the 

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1 paragraph (B) and, notwithstanding whether 

2 the worker has completed 50 percent of the pe3 riod of employment, shall provide the transpor4 tation reimbursement required by subparagraph 

5 (A). 

6 ‘‘(E) TRANSPORTATION BETWEEN LIVING

7 QUARTERS AND WORKSITE.—The employer 

8 shall provide transportation between the work9 er’s living quarters and the employer’s worksite 

10 without cost to the worker, and such transpor11 tation will be in accordance with applicable laws 

12 and regulations. 

13 ‘‘(3) REQUIRED WAGES.— 

14 ‘‘(A) IN GENERAL.—An employer applying 

15 for workers under section 218(a) shall offer to 

16 pay, and shall pay, all workers in the occupa17 tion for which the employer has applied for 

18 workers, not less (and is not required to pay 

19 more) than the greater of the prevailing wage 

20 in the occupation in the area of intended em21 ployment or the adverse effect wage rate. No 

22 worker shall be paid less than the greater of the 

23 hourly wage prescribed under section 6(a)(1) of 

24 the Fair Labor Standards Act of 1938 (29 


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1 U.S.C. 206(a)(1)) or the applicable State min2 imum wage. 

3 ‘‘(B) LIMITATION.—Effective on the date 

4 of the enactment of the Agricultural Job Op5 portunities, Benefits, and Security Act of 2009 

6 and continuing for 3 years thereafter, no ad7 verse effect wage rate for a State may be more 

8 than the adverse effect wage rate for that State 

9 in effect on January 1, 2009, as established by 

10 section 655.107 of title 20, Code of Federal 

11 Regulations. 

12 ‘‘(C) REQUIRED WAGES AFTER 3-YEAR

13 FREEZE.— 

14 ‘‘(i) FIRST ADJUSTMENT.—If Con15 gress does not set a new wage standard 

16 applicable to this section before the first 

17 March 1 that is not less than 3 years after 

18 the date of enactment of this section, the 

19 adverse effect wage rate for each State be20 ginning on such March 1 shall be the wage 

21 rate that would have resulted if the ad22 verse effect wage rate in effect on January 

23 1, 2009, had been annually adjusted, be24 ginning on March 1, 2012, by the lesser 

25 of— 


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1 ‘‘(I) the 12-month percentage 

2 change in the Consumer Price Index 

3 for All Urban Consumers between De4 cember of the second preceding year 

5 and December of the preceding year; 

6 and 

7 ‘‘(II) 4 percent. 

8 ‘‘(ii) SUBSEQUENT ANNUAL ADJUST9 MENTS.—Beginning on the first March 1 

10 that is not less than 4 years after the date 

11 of enactment of this section, and each 

12 March 1 thereafter, the adverse effect 

13 wage rate then in effect for each State 

14 shall be adjusted by the lesser of— 

15 ‘‘(I) the 12-month percentage 

16 change in the Consumer Price Index 

17 for All Urban Consumers between De18 cember of the second preceding year 

19 and December of the preceding year; 

20 and 

21 ‘‘(II) 4 percent. 

22 ‘‘(D) DEDUCTIONS.—The employer shall 

23 make only those deductions from the worker’s 

24 wages that are authorized by law or are reason25 able and customary in the occupation and area 


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1 of employment. The job offer shall specify all 

2 deductions not required by law which the em3 ployer will make from the worker’s wages. 

4 ‘‘(E) FREQUENCY OF PAY.—The employer 

5 shall pay the worker not less frequently than 

6 twice monthly, or in accordance with the pre7 vailing practice in the area of employment, 

8 whichever is more frequent. 

9 ‘‘(F) HOURS AND EARNINGS STATE10 MENTS.—The employer shall furnish to the 

11 worker, on or before each payday, in 1 or more 

12 written statements— 

13 ‘‘(i) the worker’s total earnings for 

14 the pay period; 

15 ‘‘(ii) the worker’s hourly rate of pay, 

16 piece rate of pay, or both; 

17 ‘‘(iii) the hours of employment which 

18 have been offered to the worker (broken 

19 out by hours offered in accordance with 

and over and above the 3 20 ⁄4 guarantee de21 scribed in paragraph (4); 

22 ‘‘(iv) the hours actually worked by the 

23 worker; 

24 ‘‘(v) an itemization of the deductions 

25 made from the worker’s wages; and 


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1 ‘‘(vi) if piece rates of pay are used, 

2 the units produced daily. 

3 ‘‘(G) REPORT ON WAGE PROTECTIONS.— 

4 Not later than December 31, 2011, the Comp5 troller General of the United States shall pre6 pare and transmit to the Secretary of Labor, 

7 the Committee on the Judiciary of the Senate, 

8 and Committee on the Judiciary of the House 

9 of Representatives, a report that addresses— 

10 ‘‘(i) whether the employment of H–2A 

11 or unauthorized aliens in the United States 

12 agricultural workforce has depressed 

13 United States farm worker wages below 

14 the levels that would otherwise have pre15 vailed if alien farm workers had not been 

16 employed in the United States; 

17 ‘‘(ii) whether an adverse effect wage 

18 rate is necessary to prevent wages of 

19 United States farm workers in occupations 

20 in which H–2A workers are employed from 

21 falling below the wage levels that would 

22 have prevailed in the absence of the em23 ployment of H–2A workers in those occu24 pations; 


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1 ‘‘(iii) whether alternative wage stand2 ards, such as a prevailing wage standard, 

3 would be sufficient to prevent wages in oc4 cupations in which H–2A workers are em5 ployed from falling below the wage level 

6 that would have prevailed in the absence of 

7 H–2A employment; 

8 ‘‘(iv) whether any changes are war9 ranted in the current methodologies for 

10 calculating the adverse effect wage rate 

11 and the prevailing wage; and 

12 ‘‘(v) recommendations for future wage 

13 protection under this section. 

14 ‘‘(H) COMMISSION ON WAGE STAND15 ARDS.— 

16 ‘‘(i) ESTABLISHMENT.—There is es17 tablished the Commission on Agricultural 

18 Wage Standards under the H–2A program 

19 (in this subparagraph referred to as the 

20 ‘Commission’). 

21 ‘‘(ii) COMPOSITION.—The Commission 

22 shall consist of 10 members as follows: 

23 ‘‘(I) Four representatives of agri24 cultural employers and 1 representa25 tive of the Department of Agriculture, 


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1 each appointed by the Secretary of 

2 Agriculture. 

3 ‘‘(II) Four representatives of ag4 ricultural workers and 1 representa5 tive of the Department of Labor, each 

6 appointed by the Secretary of Labor. 

7 ‘‘(iii) FUNCTIONS.—The Commission 

8 shall conduct a study that shall address— 

9 ‘‘(I) whether the employment of 

10 H–2A or unauthorized aliens in the 

11 United States agricultural workforce 

12 has depressed United States farm 

13 worker wages below the levels that 

14 would otherwise have prevailed if alien 

15 farm workers had not been employed 

16 in the United States; 

17 ‘‘(II) whether an adverse effect 

18 wage rate is necessary to prevent 

19 wages of United States farm workers 

20 in occupations in which H–2A work21 ers are employed from falling below 

22 the wage levels that would have pre23 vailed in the absence of the employ24 ment of H–2A workers in those occu25 pations; 


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1 ‘‘(III) whether alternative wage 

2 standards, such as a prevailing wage 

3 standard, would be sufficient to pre4 vent wages in occupations in which 

5 H–2A workers are employed from fall6 ing below the wage level that would 

7 have prevailed in the absence of H–2A 

8 employment; 

9 ‘‘(IV) whether any changes are 

10 warranted in the current methodolo11 gies for calculating the adverse effect 

12 wage rate and the prevailing wage 

13 rate; and 

14 ‘‘(V) recommendations for future 

15 wage protection under this section. 

16 ‘‘(iv) FINAL REPORT.—Not later than 

17 December 31, 2011, the Commission shall 

18 submit a report to the Congress setting 

19 forth the findings of the study conducted 

20 under clause (iii). 

21 ‘‘(v) TERMINATION DATE.—The Com22 mission shall terminate upon submitting 

23 its final report. 

24 ‘‘(4) GUARANTEE OF EMPLOYMENT.— 


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1 ‘‘(A) OFFER TO WORKER.—The employer 

2 shall guarantee to offer the worker employment 

for the hourly equivalent of at least 3 3 ⁄4 of the 

4 work days of the total period of employment, 

5 beginning with the first work day after the ar6 rival of the worker at the place of employment 

7 and ending on the expiration date specified in 

8 the job offer. For purposes of this subpara9 graph, the hourly equivalent means the number 

10 of hours in the work days as stated in the job 

11 offer and shall exclude the worker’s Sabbath 

12 and Federal holidays. If the employer affords 

13 the United States or H–2A worker less employ14 ment than that required under this paragraph, 

15 the employer shall pay such worker the amount 

16 which the worker would have earned had the 

17 worker, in fact, worked for the guaranteed 

18 number of hours. 

19 ‘‘(B) FAILURE TO WORK.—Any hours 

20 which the worker fails to work, up to a max21 imum of the number of hours specified in the 

22 job offer for a work day, when the worker has 

23 been offered an opportunity to do so, and all 

24 hours of work actually performed (including vol25 untary work in excess of the number of hours 


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1 specified in the job offer in a work day, on the 

2 worker’s Sabbath, or on Federal holidays) may 

3 be counted by the employer in calculating 

4 whether the period of guaranteed employment 

5 has been met. 

6 ‘‘(C) ABANDONMENT OF EMPLOYMENT, 

7 TERMINATION FOR CAUSE.—If the worker vol8 untarily abandons employment before the end 

9 of the contract period, or is terminated for 

cause, the worker is not entitled to the ‘3 10 ⁄4

11 guarantee’ described in subparagraph (A). 

12 ‘‘(D) CONTRACT IMPOSSIBILITY.—If, be13 fore the expiration of the period of employment 

14 specified in the job offer, the services of the 

15 worker are no longer required for reasons be16 yond the control of the employer due to any 

17 form of natural disaster, including a flood, hur18 ricane, freeze, earthquake, fire, drought, plant 

19 or animal disease or pest infestation, or regu20 latory drought, before the guarantee in sub21 paragraph (A) is fulfilled, the employer may 

22 terminate the worker’s employment. In the 

23 event of such termination, the employer shall 

24 fulfill the employment guarantee in subpara25 graph (A) for the work days that have elapsed 


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1 from the first work day after the arrival of the 

2 worker to the termination of employment. In 

3 such cases, the employer will make efforts to 

4 transfer the United States worker to other com5 parable employment acceptable to the worker. If 

6 such transfer is not effected, the employer shall 

7 provide the return transportation required in 

8 paragraph (2)(D). 

9 ‘‘(5) MOTOR VEHICLE SAFETY.— 

10 ‘‘(A) MODE OF TRANSPORTATION SUBJECT

11 TO COVERAGE.— 

12 ‘‘(i) IN GENERAL.—Except as pro13 vided in clauses (iii) and (iv), this sub14 section applies to any H–2A employer that 

15 uses or causes to be used any vehicle to 

16 transport an H–2A worker within the 

17 United States. 

18 ‘‘(ii) DEFINED TERM.—In this para19 graph, the term ‘uses or causes to be 

20 used’— 

21 ‘‘(I) applies only to transpor22 tation provided by an H–2A employer 

23 to an H–2A worker, or by a farm 

24 labor contractor to an H–2A worker 


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1 at the request or direction of an H– 

2 2A employer; and 

3 ‘‘(II) does not apply to— 

4 ‘‘(aa) transportation pro5 vided, or transportation arrange6 ments made, by an H–2A work7 er, unless the employer specifi8 cally requested or arranged such 

9 transportation; or 

10 ‘‘(bb) car pooling arrange11 ments made by H–2A workers 

12 themselves, using 1 of the work13 ers’ own vehicles, unless specifi14 cally requested by the employer 

15 directly or through a farm labor 

16 contractor. 

17 ‘‘(iii) CLARIFICATION.—Providing a 

18 job offer to an H–2A worker that causes 

19 the worker to travel to or from the place 

20 of employment, or the payment or reim21 bursement of the transportation costs of 

22 an H–2A worker by an H–2A employer, 

23 shall not constitute an arrangement of, or 

24 participation in, such transportation. 


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1 ‘‘(iv) AGRICULTURAL MACHINERY AND

2 EQUIPMENT EXCLUDED.—This subsection 

3 does not apply to the transportation of an 

4 H–2A worker on a tractor, combine, har5 vester, picker, or other similar machinery 

6 or equipment while such worker is actually 

7 engaged in the planting, cultivating, or 

8 harvesting of agricultural commodities or 

9 the care of livestock or poultry or engaged 

10 in transportation incidental thereto. 

11 ‘‘(v) COMMON CARRIERS EX12 CLUDED.—This subsection does not apply 

13 to common carrier motor vehicle transpor14 tation in which the provider holds itself out 

15 to the general public as engaging in the 

16 transportation of passengers for hire and 

17 holds a valid certification of authorization 

18 for such purposes from an appropriate 

19 Federal, State, or local agency. 

20 ‘‘(B) APPLICABILITY OF STANDARDS, LI21 CENSING, AND INSURANCE REQUIREMENTS.— 

22 ‘‘(i) IN GENERAL.—When using, or 

23 causing to be used, any vehicle for the pur24 pose of providing transportation to which 


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1 this subparagraph applies, each employer 

2 shall— 

3 ‘‘(I) ensure that each such vehi4 cle conforms to the standards pre5 scribed by the Secretary of Labor 

6 under section 401(b) of the Migrant 

7 and Seasonal Agricultural Worker 

8 Protection Act (29 U.S.C. 1841(b)) 

9 and other applicable Federal and 

10 State safety standards; 

11 ‘‘(II) ensure that each driver has 

12 a valid and appropriate license, as 

13 provided by State law, to operate the 

14 vehicle; and 

15 ‘‘(III) have an insurance policy 

16 or a liability bond that is in effect 

17 which insures the employer against li18 ability for damage to persons or prop19 erty arising from the ownership, oper20 ation, or causing to be operated, of 

21 any vehicle used to transport any H– 

22 2A worker. 

23 ‘‘(ii) AMOUNT OF INSURANCE RE24 QUIRED.—The level of insurance required 

25 shall be determined by the Secretary of 


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1 Labor pursuant to regulations to be issued 

2 under this subsection. 

3 ‘‘(iii) EFFECT OF WORKERS’ COM4 PENSATION COVERAGE.—If the employer 

5 of any H–2A worker provides workers’ 

6 compensation coverage for such worker in 

7 the case of bodily injury or death as pro8 vided by State law, the following adjust9 ments in the requirements of subparagraph 

10 (B)(i)(III) relating to having an insurance 

11 policy or liability bond apply: 

12 ‘‘(I) No insurance policy or liabil13 ity bond shall be required of the em14 ployer, if such workers are trans15 ported only under circumstances for 

16 which there is coverage under such 

17 State law. 

18 ‘‘(II) An insurance policy or li19 ability bond shall be required of the 

20 employer for circumstances under 

21 which coverage for the transportation 

22 of such workers is not provided under 

23 such State law. 

24 ‘‘(c) COMPLIANCE WITH LABOR LAWS.—An em25 ployer shall assure that, except as otherwise provided in 


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1 this section, the employer will comply with all applicable 

2 Federal, State, and local labor laws, including laws affect3 ing migrant and seasonal agricultural workers, with re4 spect to all United States workers and alien workers em5 ployed by the employer, except that a violation of this as6 surance shall not constitute a violation of the Migrant and 

7 Seasonal Agricultural Worker Protection Act (29 U.S.C. 

8 1801 et seq.). 

9 ‘‘(d) COPY OF JOB OFFER.—The employer shall pro10 vide to the worker, not later than the day the work com11 mences, a copy of the employer’s application and job offer 

12 described in section 218(a), or, if the employer will require 

13 the worker to enter into a separate employment contract 

14 covering the employment in question, such separate em15 ployment contract. 

16 ‘‘(e) RANGE PRODUCTION OF LIVESTOCK.—Nothing 

17 in this section, section 218, or section 218B shall preclude 

18 the Secretary of Labor and the Secretary from continuing 

19 to apply special procedures and requirements to the ad20 mission and employment of aliens in occupations involving 

21 the range production of livestock. 

22 ‘‘SEC. 218B. PROCEDURE FOR ADMISSION AND EXTENSION 

23 OF STAY OF H–2A WORKERS. 

24 ‘‘(a) PETITIONING FOR ADMISSION.—An employer, 

25 or an association acting as an agent or joint employer for 


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1 its members, that seeks the admission into the United 

2 States of an H–2A worker may file a petition with the 

3 Secretary. The petition shall be accompanied by an accept4 ed and currently valid certification provided by the Sec5 retary of Labor under section 218(e)(2)(B) covering the 

6 petitioner. 

7 ‘‘(b) EXPEDITED ADJUDICATION BY THE SEC8 RETARY.—The Secretary shall establish a procedure for 

9 expedited adjudication of petitions filed under subsection 

10 (a) and within 7 working days shall, by fax, cable, or other 

11 means assuring expedited delivery, transmit a copy of no12 tice of action on the petition to the petitioner and, in the 

13 case of approved petitions, to the appropriate immigration 

14 officer at the port of entry or United States consulate (as 

15 the case may be) where the petitioner has indicated that 

16 the alien beneficiary (or beneficiaries) will apply for a visa 

17 or admission to the United States. 

18 ‘‘(c) CRITERIA FOR ADMISSIBILITY.— 

19 ‘‘(1) IN GENERAL.—An H–2A worker shall be 

20 considered admissible to the United States if the 

21 alien is otherwise admissible under this section, sec22 tion 218, and section 218A, and the alien is not in23 eligible under paragraph (2). 

24 ‘‘(2) DISQUALIFICATION.—An alien shall be 

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1 eligible for nonimmigrant status under section 

2 101(a)(15)(H)(ii)(a) if the alien has, at any time 

3 during the past 5 years— 

4 ‘‘(A) violated a material provision of this 

5 section, including the requirement to promptly 

6 depart the United States when the alien’s au7 thorized period of admission under this section 

8 has expired; or 

9 ‘‘(B) otherwise violated a term or condition 

10 of admission into the United States as a non11 immigrant, including overstaying the period of 

12 authorized admission as such a nonimmigrant. 

13 ‘‘(3) WAIVER OF INELIGIBILITY FOR UNLAW14 FUL PRESENCE.— 

15 ‘‘(A) IN GENERAL.—An alien who has not 

16 previously been admitted into the United States 

17 pursuant to this section, and who is otherwise 

18 eligible for admission in accordance with para19 graphs (1) and (2), shall not be deemed inad20 missible by virtue of section 212(a)(9)(B). If an 

21 alien described in the preceding sentence is 

22 present in the United States, the alien may 

23 apply from abroad for H–2A status, but may 

24 not be granted that status in the United States. 


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1 ‘‘(B) MAINTENANCE OF WAIVER.—An 

2 alien provided an initial waiver of ineligibility 

3 pursuant to subparagraph (A) shall remain eli4 gible for such waiver unless the alien violates 

5 the terms of this section or again becomes ineli6 gible under section 212(a)(9)(B) by virtue of 

7 unlawful presence in the United States after 

8 the date of the initial waiver of ineligibility pur9 suant to subparagraph (A). 

10 ‘‘(d) PERIOD OF ADMISSION.— 

11 ‘‘(1) IN GENERAL.—The alien shall be admitted 

12 for the period of employment in the application cer13 tified by the Secretary of Labor pursuant to section 

14 218(e)(2)(B), not to exceed 10 months, supple15 mented by a period of not more than 1 week before 

16 the beginning of the period of employment for the 

17 purpose of travel to the worksite and a period of 14 

18 days following the period of employment for the pur19 pose of departure or extension based on a subse20 quent offer of employment, except that— 

21 ‘‘(A) the alien is not authorized to be em22 ployed during such 14-day period except in the 

23 employment for which the alien was previously 

24 authorized; and 


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1 ‘‘(B) the total period of employment, in2 cluding such 14-day period, may not exceed 10 

3 months. 

4 ‘‘(2) CONSTRUCTION.—Nothing in this sub5 section shall limit the authority of the Secretary to 

6 extend the stay of the alien under any other provi7 sion of this Act. 

8 ‘‘(e) ABANDONMENT OF EMPLOYMENT.— 

9 ‘‘(1) IN GENERAL.—An alien admitted or pro10 vided status under section 101(a)(15)(H)(ii)(a) who 

11 abandons the employment which was the basis for 

12 such admission or status shall be considered to have 

13 failed to maintain nonimmigrant status as an H–2A 

14 worker and shall depart the United States or be sub15 ject to removal under section 237(a)(1)(C)(i). 

16 ‘‘(2) REPORT BY EMPLOYER.—The employer, or 

17 association acting as agent for the employer, shall 

18 notify the Secretary not later than 7 days after an 

19 H–2A worker prematurely abandons employment. 

20 ‘‘(3) REMOVAL BY THE SECRETARY.—The Sec21 retary shall promptly remove from the United States 

22 any H–2A worker who violates any term or condi23 tion of the worker’s nonimmigrant status. 

24 ‘‘(4) VOLUNTARY TERMINATION.—Notwith25 standing paragraph (1), an alien may voluntarily 


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1 terminate his or her employment if the alien prompt2 ly departs the United States upon termination of 

3 such employment. 

4 ‘‘(f) REPLACEMENT OF ALIEN.— 

5 ‘‘(1) IN GENERAL.—Upon presentation of the 

6 notice to the Secretary required by subsection (e)(2), 

7 the Secretary of State shall promptly issue a visa to, 

8 and the Secretary shall admit into the United 

9 States, an eligible alien designated by the employer 

10 to replace an H–2A worker— 

11 ‘‘(A) who abandons or prematurely termi12 nates employment; or 

13 ‘‘(B) whose employment is terminated 

14 after a United States worker is employed pur15 suant to section 218(b)(2)(H)(iii), if the United 

16 States worker voluntarily departs before the 

17 end of the period of intended employment or if 

18 the employment termination is for a lawful job19 related reason. 

20 ‘‘(2) CONSTRUCTION.—Nothing in this sub21 section is intended to limit any preference required 

22 to be accorded United States workers under any 

23 other provision of this Act. 

24 ‘‘(g) IDENTIFICATION DOCUMENT.— 


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1 ‘‘(1) IN GENERAL.—Each alien authorized to be 

2 admitted under section 101(a)(15)(H)(ii)(a) shall be 

3 provided an identification and employment eligibility 

4 document to verify eligibility for employment in the 

5 United States and verify the alien’s identity. 

6 ‘‘(2) REQUIREMENTS.—No identification and 

7 employment eligibility document may be issued 

8 which does not meet the following requirements: 

9 ‘‘(A) The document shall be capable of re10 liably determining whether— 

11 ‘‘(i) the individual with the identifica12 tion and employment eligibility document 

13 whose eligibility is being verified is in fact 

14 eligible for employment; 

15 ‘‘(ii) the individual whose eligibility is 

16 being verified is claiming the identity of 

17 another person; and 

18 ‘‘(iii) the individual whose eligibility is 

19 being verified is authorized to be admitted 

20 into, and employed in, the United States 

21 as an H–2A worker. 

22 ‘‘(B) The document shall be in a form that 

23 is resistant to counterfeiting and to tampering. 

24 ‘‘(C) The document shall— 


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1 ‘‘(i) be compatible with other data2 bases of the Secretary for the purpose of 

3 excluding aliens from benefits for which 

4 they are not eligible and determining 

5 whether the alien is unlawfully present in 

6 the United States; and 

7 ‘‘(ii) be compatible with law enforce8 ment databases to determine if the alien 

9 has been convicted of criminal offenses. 

10 ‘‘(h) EXTENSION OF STAY OF H–2A ALIENS IN THE

11 UNITED STATES.— 

12 ‘‘(1) EXTENSION OF STAY.—If an employer 

13 seeks approval to employ an H–2A alien who is law14 fully present in the United States, the petition filed 

15 by the employer or an association pursuant to sub16 section (a), shall request an extension of the alien’s 

17 stay and a change in the alien’s employment. 

18 ‘‘(2) LIMITATION ON FILING A PETITION FOR

19 EXTENSION OF STAY.—A petition may not be filed 

20 for an extension of an alien’s stay— 

21 ‘‘(A) for a period of more than 10 months; 

22 or 

23 ‘‘(B) to a date that is more than 3 years 

24 after the date of the alien’s last admission to 

25 the United States under this section. 


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1 ‘‘(3) WORK AUTHORIZATION UPON FILING A

2 PETITION FOR EXTENSION OF STAY.— 

3 ‘‘(A) IN GENERAL.—An alien who is law4 fully present in the United States may com5 mence the employment described in a petition 

6 under paragraph (1) on the date on which the 

7 petition is filed. 

8 ‘‘(B) DEFINITION.—For purposes of sub9 paragraph (A), the term ‘file’ means sending 

10 the petition by certified mail via the United 

11 States Postal Service, return receipt requested, 

12 or delivered by guaranteed commercial delivery 

13 which will provide the employer with a docu14 mented acknowledgment of the date of receipt 

15 of the petition. 

16 ‘‘(C) HANDLING OF PETITION.—The em17 ployer shall provide a copy of the employer’s pe18 tition to the alien, who shall keep the petition 

19 with the alien’s identification and employment 

20 eligibility document as evidence that the peti21 tion has been filed and that the alien is author22 ized to work in the United States. 

23 ‘‘(D) APPROVAL OF PETITION.—Upon ap24 proval of a petition for an extension of stay or 

25 change in the alien’s authorized employment, 


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1 the Secretary shall provide a new or updated 

2 employment eligibility document to the alien in3 dicating the new validity date, after which the 

4 alien is not required to retain a copy of the pe5 tition. 

6 ‘‘(4) LIMITATION ON EMPLOYMENT AUTHORIZA7 TION OF ALIENS WITHOUT VALID IDENTIFICATION

8 AND EMPLOYMENT ELIGIBILITY DOCUMENT.—An ex9 pired identification and employment eligibility docu10 ment, together with a copy of a petition for exten11 sion of stay or change in the alien’s authorized em12 ployment that complies with the requirements of 

13 paragraph (1), shall constitute a valid work author14 ization document for a period of not more than 60 

15 days beginning on the date on which such petition 

16 is filed, after which time only a currently valid iden17 tification and employment eligibility document shall 

18 be acceptable. 

19 ‘‘(5) LIMITATION ON AN INDIVIDUAL’S STAY IN

20 STATUS.— 

21 ‘‘(A) MAXIMUM PERIOD.—The maximum 

22 continuous period of authorized status as an 

23 H–2A worker (including any extensions) is 3 

24 years. 


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1 ‘‘(B) REQUIREMENT TO REMAIN OUTSIDE

2 THE UNITED STATES.— 

3 ‘‘(i) IN GENERAL.—Subject to clause 

4 (ii), in the case of an alien outside the 

5 United States whose period of authorized 

6 status as an H–2A worker (including any 

7 extensions) has expired, the alien may not 

8 again apply for admission to the United 

9 States as an H–2A worker unless the alien 

10 has remained outside the United States for 

a continuous period equal to at least 1 11 ⁄5

12 the duration of the alien’s previous period 

13 of authorized status as an H–2A worker 

14 (including any extensions). 

15 ‘‘(ii) EXCEPTION.—Clause (i) shall 

16 not apply in the case of an alien if the 

17 alien’s period of authorized status as an 

18 H–2A worker (including any extensions) 

19 was for a period of not more than 10 

20 months and such alien has been outside 

21 the United States for at least 2 months 

22 during the 12 months preceding the date 

23 the alien again is applying for admission to 

24 the United States as an H–2A worker. 


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1 ‘‘(i) SPECIAL RULES FOR ALIENS EMPLOYED AS

2 SHEEPHERDERS, GOAT HERDERS, OR DAIRY WORK3 ERS.—Notwithstanding any provision of the Agricultural 

4 Job Opportunities, Benefits, and Security Act of 2009, an 

5 alien admitted under section 101(a)(15)(H)(ii)(a) for em6 ployment as a sheepherder, goat herder, or dairy worker— 

7 ‘‘(1) may be admitted for an initial period of 12 

8 months; 

9 ‘‘(2) subject to subsection (j)(5), may have such 

10 initial period of admission extended for a period of 

11 up to 3 years; and 

12 ‘‘(3) shall not be subject to the requirements of 

13 subsection (h)(5) (relating to periods of absence 

14 from the United States). 

15 ‘‘(j) ADJUSTMENT TO LAWFUL PERMANENT RESI16 DENT STATUS FOR ALIENS EMPLOYED AS SHEEP17 HERDERS, GOAT HERDERS, OR DAIRY WORKERS.— 

18 ‘‘(1) ELIGIBLE ALIEN.—For purposes of this 

19 subsection, the term ‘eligible alien’ means an alien— 

20 ‘‘(A) having nonimmigrant status under 

21 section 101(a)(15)(H)(ii)(a) based on employ22 ment as a sheepherder, goat herder, or dairy 

23 worker; 

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1 mulative total of 36 months (excluding any pe2 riod of absence from the United States); and 

3 ‘‘(C) who is seeking to receive an immi4 grant visa under section 203(b)(3)(A)(iii). 

5 ‘‘(2) CLASSIFICATION PETITION.—In the case 

6 of an eligible alien, the petition under section 204 

7 for classification under section 203(b)(3)(A)(iii) may 

8 be filed by— 

9 ‘‘(A) the alien’s employer on behalf of the 

10 eligible alien; or 

11 ‘‘(B) the eligible alien. 

12 ‘‘(3) NO LABOR CERTIFICATION REQUIRED.— 

13 Notwithstanding section 203(b)(3)(C), no deter14 mination under section 212(a)(5)(A) is required with 

15 respect to an immigrant visa described in paragraph 

16 (1)(C) for an eligible alien. 

17 ‘‘(4) EFFECT OF PETITION.—The filing of a pe18 tition described in paragraph (2) or an application 

19 for adjustment of status based on the approval of 

20 such a petition shall not constitute evidence of an 

21 alien’s ineligibility for nonimmigrant status under 

22 section 101(a)(15)(H)(ii)(a). 

23 ‘‘(5) EXTENSION OF STAY.—The Secretary 

24 shall extend the stay of an eligible alien having a 

25 pending or approved classification petition described 


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1 in paragraph (2) in 1-year increments until a final 

2 determination is made on the alien’s eligibility for 

3 adjustment of status to that of an alien lawfully ad4 mitted for permanent residence. 

5 ‘‘(6) CONSTRUCTION.—Nothing in this sub6 section shall be construed to prevent an eligible alien 

7 from seeking adjustment of status in accordance 

8 with any other provision of law. 

9 ‘‘SEC. 218C. WORKER PROTECTIONS AND LABOR STAND10 ARDS ENFORCEMENT. 

11 ‘‘(a) ENFORCEMENT AUTHORITY.— 

12 ‘‘(1) INVESTIGATION OF COMPLAINTS.— 

13 ‘‘(A) AGGRIEVED PERSON OR THIRD-PARTY

14 COMPLAINTS.—The Secretary of Labor shall es15 tablish a process for the receipt, investigation, 

16 and disposition of complaints respecting a peti17 tioner’s failure to meet a condition specified in 

18 section 218(b), or an employer’s misrepresenta19 tion of material facts in an application under 

20 section 218(a). Complaints may be filed by any 

21 aggrieved person or organization (including bar22 gaining representatives). No investigation or 

23 hearing shall be conducted on a complaint con24 cerning such a failure or misrepresentation un25 less the complaint was filed not later than 12 


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1 months after the date of the failure, or mis2 representation, respectively. The Secretary of 

3 Labor shall conduct an investigation under this 

4 subparagraph if there is reasonable cause to be5 lieve that such a failure or misrepresentation 

6 has occurred. 

7 ‘‘(B) DETERMINATION ON COMPLAINT.— 

8 Under such process, the Secretary of Labor 

9 shall provide, within 30 days after the date 

10 such a complaint is filed, for a determination as 

11 to whether or not a reasonable basis exists to 

12 make a finding described in subparagraph (C), 

13 (D), (E), or (G). If the Secretary of Labor de14 termines that such a reasonable basis exists, 

15 the Secretary of Labor shall provide for notice 

16 of such determination to the interested parties 

17 and an opportunity for a hearing on the com18 plaint, in accordance with section 556 of title 5, 

19 United States Code, within 60 days after the 

20 date of the determination. If such a hearing is 

21 requested, the Secretary of Labor shall make a 

22 finding concerning the matter not later than 60 

23 days after the date of the hearing. In the case 

24 of similar complaints respecting the same appli25 cant, the Secretary of Labor may consolidate 


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1 the hearings under this subparagraph on such 

2 complaints. 

3 ‘‘(C) FAILURES TO MEET CONDITIONS.—If 

4 the Secretary of Labor finds, after notice and 

5 opportunity for a hearing, a failure to meet a 

6 condition of paragraph (1)(A), (1)(B), (1)(D), 

7 (1)(F), (2)(A), (2)(B), or (2)(G) of section 

8 218(b), a substantial failure to meet a condition 

9 of paragraph (1)(C), (1)(E), (2)(C), (2)(D), 

10 (2)(E), or (2)(H) of section 218(b), or a mate11 rial misrepresentation of fact in an application 

12 under section 218(a)— 

13 ‘‘(i) the Secretary of Labor shall no14 tify the Secretary of such finding and may, 

15 in addition, impose such other administra16 tive remedies (including civil money pen17 alties in an amount not to exceed $1,000 

18 per violation) as the Secretary of Labor 

19 determines to be appropriate; and 

20 ‘‘(ii) the Secretary may disqualify the 

21 employer from the employment of aliens 

22 described in section 101(a)(15)(H)(ii)(a) 

23 for a period of 1 year. 

24 ‘‘(D) WILLFUL FAILURES AND WILLFUL

25 MISREPRESENTATIONS.—If the Secretary of 


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1 Labor finds, after notice and opportunity for 

2 hearing, a willful failure to meet a condition of 

3 section 218(b), a willful misrepresentation of a 

4 material fact in an application under section 

5 218(a), or a violation of subsection (d)(1)— 

6 ‘‘(i) the Secretary of Labor shall no7 tify the Secretary of such finding and may, 

8 in addition, impose such other administra9 tive remedies (including civil money pen10 alties in an amount not to exceed $5,000 

11 per violation) as the Secretary of Labor 

12 determines to be appropriate; 

13 ‘‘(ii) the Secretary of Labor may seek 

14 appropriate legal or equitable relief to ef15 fectuate the purposes of subsection (d)(1); 

16 and 

17 ‘‘(iii) the Secretary may disqualify the 

18 employer from the employment of H–2A 

19 workers for a period of 2 years. 

20 ‘‘(E) DISPLACEMENT OF UNITED STATES

21 WORKERS.—If the Secretary of Labor finds, 

22 after notice and opportunity for hearing, a will23 ful failure to meet a condition of section 218(b) 

24 or a willful misrepresentation of a material fact 

25 in an application under section 218(a), in the 


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1 course of which failure or misrepresentation the 

2 employer displaced a United States worker em3 ployed by the employer during the period of em4 ployment on the employer’s application under 

5 section 218(a) or during the period of 30 days 

6 preceding such period of employment— 

7 ‘‘(i) the Secretary of Labor shall no8 tify the Secretary of such finding and may, 

9 in addition, impose such other administra10 tive remedies (including civil money pen11 alties in an amount not to exceed $15,000 

12 per violation) as the Secretary of Labor 

13 determines to be appropriate; and 

14 ‘‘(ii) the Secretary may disqualify the 

15 employer from the employment of H–2A 

16 workers for a period of 3 years. 

17 ‘‘(F) LIMITATIONS ON CIVIL MONEY PEN18 ALTIES.—The Secretary of Labor shall not im19 pose total civil money penalties with respect to 

20 an application under section 218(a) in excess of 

21 $90,000. 

22 ‘‘(G) FAILURES TO PAY WAGES OR RE23 QUIRED BENEFITS.—If the Secretary of Labor 

24 finds, after notice and opportunity for a hear25 ing, that the employer has failed to pay the 


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1 wages, or provide the housing allowance, trans2 portation, subsistence reimbursement, or guar3 antee of employment, required under section 

4 218A(b), the Secretary of Labor shall assess 

5 payment of back wages, or other required bene6 fits, due any United States worker or H–2A 

7 worker employed by the employer in the specific 

8 employment in question. The back wages or 

9 other required benefits under section 218A(b) 

10 shall be equal to the difference between the 

11 amount that should have been paid and the 

12 amount that actually was paid to such worker. 

13 ‘‘(2) STATUTORY CONSTRUCTION.—Nothing in 

14 this section shall be construed as limiting the au15 thority of the Secretary of Labor to conduct any 

16 compliance investigation under any other labor law, 

17 including any law affecting migrant and seasonal ag18 ricultural workers, or, in the absence of a complaint 

19 under this section, under section 218 or 218A. 

20 ‘‘(b) RIGHTS ENFORCEABLE BY PRIVATE RIGHT OF

21 ACTION.—H–2A workers may enforce the following rights 

22 through the private right of action provided in subsection 

23 (c), and no other right of action shall exist under Federal 

24 or State law to enforce such rights: 


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1 ‘‘(1) The providing of housing or a housing al2 lowance as required under section 218A(b)(1). 

3 ‘‘(2) The reimbursement of transportation as 

4 required under section 218A(b)(2). 

5 ‘‘(3) The payment of wages required under sec6 tion 218A(b)(3) when due. 

7 ‘‘(4) The benefits and material terms and con8 ditions of employment expressly provided in the job 

9 offer described in section 218(a)(2), not including 

10 the assurance to comply with other Federal, State, 

11 and local labor laws described in section 218A(c), 

12 compliance with which shall be governed by the pro13 visions of such laws. 

14 ‘‘(5) The guarantee of employment required 

15 under section 218A(b)(4). 

16 ‘‘(6) The motor vehicle safety requirements 

17 under section 218A(b)(5). 

18 ‘‘(7) The prohibition of discrimination under 

19 subsection (d)(2). 

20 ‘‘(c) PRIVATE RIGHT OF ACTION.— 

21 ‘‘(1) MEDIATION.—Upon the filing of a com22 plaint by an H–2A worker aggrieved by a violation 

23 of rights enforceable under subsection (b), and with24 in 60 days of the filing of proof of service of the 

25 complaint, a party to the action may file a request 


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1 with the Federal Mediation and Conciliation Service 

2 to assist the parties in reaching a satisfactory reso3 lution of all issues involving all parties to the dis4 pute. Upon a filing of such request and giving of no5 tice to the parties, the parties shall attempt medi6 ation within the period specified in subparagraph 

7 (B). 

8 ‘‘(A) MEDIATION SERVICES.—The Federal 

9 Mediation and Conciliation Service shall be 

10 available to assist in resolving disputes arising 

11 under subsection (b) between H–2A workers 

12 and agricultural employers without charge to 

13 the parties. 

14 ‘‘(B) 90-DAY LIMIT.—The Federal Medi15 ation and Conciliation Service may conduct me16 diation or other nonbinding dispute resolution 

17 activities for a period not to exceed 90 days be18 ginning on the date on which the Federal Medi19 ation and Conciliation Service receives the re20 quest for assistance unless the parties agree to 

21 an extension of this period of time. 

22 ‘‘(C) AUTHORIZATION.— 

23 ‘‘(i) IN GENERAL.—Subject to clause 

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1 ciliation Service $500,000 for each fiscal 

2 year to carry out this section. 

3 ‘‘(ii) MEDIATION.—Notwithstanding 

4 any other provision of law, the Director of 

5 the Federal Mediation and Conciliation 

6 Service is authorized to conduct the medi7 ation or other dispute resolution activities 

8 from any other appropriated funds avail9 able to the Director and to reimburse such 

10 appropriated funds when the funds are ap11 propriated pursuant to this authorization, 

12 such reimbursement to be credited to ap13 propriations currently available at the time 

14 of receipt. 

15 ‘‘(2) MAINTENANCE OF CIVIL ACTION IN DIS16 TRICT COURT BY AGGRIEVED PERSON.—An H–2A 

17 worker aggrieved by a violation of rights enforceable 

18 under subsection (b) by an agricultural employer or 

19 other person may file suit in any district court of the 

20 United States having jurisdiction over the parties, 

21 without regard to the amount in controversy, with22 out regard to the citizenship of the parties, and 

23 without regard to the exhaustion of any alternative 

24 administrative remedies under this Act, not later 

25 than 3 years after the date the violation occurs. 


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1 ‘‘(3) ELECTION.—An H–2A worker who has 

2 filed an administrative complaint with the Secretary 

3 of Labor may not maintain a civil action under 

4 paragraph (2) unless a complaint based on the same 

5 violation filed with the Secretary of Labor under 

6 subsection (a)(1) is withdrawn before the filing of 

7 such action, in which case the rights and remedies 

8 available under this subsection shall be exclusive. 

9 ‘‘(4) PREEMPTION OF STATE CONTRACT

10 RIGHTS.—Nothing in this Act shall be construed to 

11 diminish the rights and remedies of an H–2A worker 

12 under any other Federal or State law or regulation 

13 or under any collective bargaining agreement, except 

14 that no court or administrative action shall be avail15 able under any State contract law to enforce the 

16 rights created by this Act. 

17 ‘‘(5) WAIVER OF RIGHTS PROHIBITED.—Agree18 ments by employees purporting to waive or modify 

19 their rights under this Act shall be void as contrary 

20 to public policy, except that a waiver or modification 

21 of the rights or obligations in favor of the Secretary 

22 of Labor shall be valid for purposes of the enforce23 ment of this Act. The preceding sentence may not 

24 be construed to prohibit agreements to settle private 

25 disputes or litigation. 


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1 ‘‘(6) AWARD OF DAMAGES OR OTHER EQUI2 TABLE RELIEF.— 

3 ‘‘(A) If the court finds that the respondent 

4 has intentionally violated any of the rights en5 forceable under subsection (b), it shall award 

6 actual damages, if any, or equitable relief. 

7 ‘‘(B) Any civil action brought under this 

8 section shall be subject to appeal as provided in 

9 chapter 83 of title 28, United States Code. 

10 ‘‘(7) WORKERS’ COMPENSATION BENEFITS; EX11 CLUSIVE REMEDY.— 

12 ‘‘(A) Notwithstanding any other provision 

13 of this section, where a State’s workers’ com14 pensation law is applicable and coverage is pro15 vided for an H–2A worker, the workers’ com16 pensation benefits shall be the exclusive remedy 

17 for the loss of such worker under this section 

18 in the case of bodily injury or death in accord19 ance with such State’s workers’ compensation 

20 law. 

21 ‘‘(B) The exclusive remedy prescribed in 

22 subparagraph (A) precludes the recovery under 

23 paragraph (6) of actual damages for loss from 

24 an injury or death but does not preclude other 

25 equitable relief, except that such relief shall not 


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1 include back or front pay or in any manner, di2 rectly or indirectly, expand or otherwise alter or 

3 affect— 

4 ‘‘(i) a recovery under a State workers’ 

5 compensation law; or 

6 ‘‘(ii) rights conferred under a State 

7 workers’ compensation law. 

8 ‘‘(8) TOLLING OF STATUTE OF LIMITATIONS.— 

9 If it is determined under a State workers’ compensa10 tion law that the workers’ compensation law is not 

11 applicable to a claim for bodily injury or death of an 

12 H–2A worker, the statute of limitations for bringing 

13 an action for actual damages for such injury or 

14 death under subsection (c) shall be tolled for the pe15 riod during which the claim for such injury or death 

16 under such State workers’ compensation law was 

17 pending. The statute of limitations for an action for 

18 actual damages or other equitable relief arising out 

19 of the same transaction or occurrence as the injury 

20 or death of the H–2A worker shall be tolled for the 

21 period during which the claim for such injury or 

22 death was pending under the State workers’ com23 pensation law. 

24 ‘‘(9) PRECLUSIVE EFFECT.—Any settlement by 

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1 son reached through the mediation process required 

2 under subsection (c)(1) shall preclude any right of 

3 action arising out of the same facts between the par4 ties in any Federal or State court or administrative 

5 proceeding, unless specifically provided otherwise in 

6 the settlement agreement. 

7 ‘‘(10) SETTLEMENTS.—Any settlement by the 

8 Secretary of Labor with an H–2A employer on be9 half of an H–2A worker of a complaint filed with the 

10 Secretary of Labor under this section or any finding 

11 by the Secretary of Labor under subsection 

12 (a)(1)(B) shall preclude any right of action arising 

13 out of the same facts between the parties under any 

14 Federal or State court or administrative proceeding, 

15 unless specifically provided otherwise in the settle16 ment agreement. 

17 ‘‘(d) DISCRIMINATION PROHIBITED.— 

18 ‘‘(1) IN GENERAL.—It is a violation of this sub19 section for any person who has filed an application 

20 under section 218(a), to intimidate, threaten, re21 strain, coerce, blacklist, discharge, or in any other 

22 manner discriminate against an employee (which 

23 term, for purposes of this subsection, includes a 

24 former employee and an applicant for employment) 

25 because the employee has disclosed information to 


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1 the employer, or to any other person, that the em2 ployee reasonably believes evidences a violation of 

3 section 218 or 218A or any rule or regulation per4 taining to section 218 or 218A, or because the em5 ployee cooperates or seeks to cooperate in an inves6 tigation or other proceeding concerning the employ7 er’s compliance with the requirements of section 218 

8 or 218A or any rule or regulation pertaining to ei9 ther of such sections. 

10 ‘‘(2) DISCRIMINATION AGAINST H–2A WORK11 ERS.—It is a violation of this subsection for any per12 son who has filed an application under section 

13 218(a), to intimidate, threaten, restrain, coerce, 

14 blacklist, discharge, or in any manner discriminate 

15 against an H–2A employee because such worker has, 

16 with just cause, filed a complaint with the Secretary 

17 of Labor regarding a denial of the rights enumer18 ated and enforceable under subsection (b) or insti19 tuted, or caused to be instituted, a private right of 

20 action under subsection (c) regarding the denial of 

21 the rights enumerated under subsection (b), or has 

22 testified or is about to testify in any court pro23 ceeding brought under subsection (c). 

24 ‘‘(e) AUTHORIZATION TO SEEK OTHER APPRO25 PRIATE EMPLOYMENT.—The Secretary of Labor and the 


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1 Secretary shall establish a process under which an H–2A 

2 worker who files a complaint regarding a violation of sub3 section (d) and is otherwise eligible to remain and work 

4 in the United States may be allowed to seek other appro5 priate employment in the United States for a period not 

6 to exceed the maximum period of stay authorized for such 

7 nonimmigrant classification. 

8 ‘‘(f) ROLE OF ASSOCIATIONS.— 

9 ‘‘(1) VIOLATION BY A MEMBER OF AN ASSOCIA10 TION.—An employer on whose behalf an application 

11 is filed by an association acting as its agent is fully 

12 responsible for such application, and for complying 

13 with the terms and conditions of sections 218 and 

14 218A, as though the employer had filed the applica15 tion itself. If such an employer is determined, under 

16 this section, to have committed a violation, the pen17 alty for such violation shall apply only to that mem18 ber of the association unless the Secretary of Labor 

19 determines that the association or other member 

20 participated in, had knowledge, or reason to know, 

21 of the violation, in which case the penalty shall be 

22 invoked against the association or other association 

23 member as well. 

24 ‘‘(2) VIOLATIONS BY AN ASSOCIATION ACTING

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1 cation as a sole or joint employer is determined to 

2 have committed a violation under this section, the 

3 penalty for such violation shall apply only to the as4 sociation unless the Secretary of Labor determines 

5 that an association member or members participated 

6 in or had knowledge, or reason to know of the viola7 tion, in which case the penalty shall be invoked 

8 against the association member or members as well. 

9 ‘‘SEC. 218D. DEFINITIONS. 

10 ‘‘For purposes of this section and section 218, 218A, 

11 218B, and 218C: 

12 ‘‘(1) AGRICULTURAL EMPLOYMENT.—The term 

13 ‘agricultural employment’ means any service or ac14 tivity that is considered to be agricultural under sec15 tion 3(f) of the Fair Labor Standards Act of 1938 

16 (29 U.S.C. 203(f)) or agricultural labor under sec17 tion 3121(g) of the Internal Revenue Code of 1986 

18 or the performance of agricultural labor or services 

19 described in section 101(a)(15)(H)(ii)(a). 

20 ‘‘(2) BONA FIDE UNION.—The term ‘bona fide 

21 union’ means any organization in which employees 

22 participate and which exists for the purpose of deal23 ing with employers concerning grievances, labor dis24 putes, wages, rates of pay, hours of employment, or 

25 other terms and conditions of work for agricultural 


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1 employees. Such term does not include an organiza2 tion formed, created, administered, supported, domi3 nated, financed, or controlled by an employer or em4 ployer association or its agents or representatives. 

5 ‘‘(3) DISPLACE.—The term ‘displace’, in the 

6 case of an application with respect to 1 or more H– 

7 2A workers by an employer, means laying off a 

8 United States worker from a job for which the H– 

9 2A worker or workers is or are sought. 

10 ‘‘(4) ELIGIBLE.—The term ‘eligible’, when used 

11 with respect to an individual, means an individual 

12 who is not an unauthorized alien (as defined in sec13 tion 274A). 

14 ‘‘(5) EMPLOYER.—The term ‘employer’ means 

15 any person or entity, including any farm labor con16 tractor and any agricultural association, that em17 ploys workers in agricultural employment. 

18 ‘‘(6) H–2A EMPLOYER.—The term ‘H–2A em19 ployer’ means an employer who seeks to hire 1 or 

20 more nonimmigrant aliens described in section 

21 101(a)(15)(H)(ii)(a). 

22 ‘‘(7) H–2A WORKER.—The term ‘H–2A worker’ 

23 means a nonimmigrant described in section 

24 101(a)(15)(H)(ii)(a). 


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1 ‘‘(8) JOB OPPORTUNITY.—The term ‘job oppor2 tunity’ means a job opening for temporary or sea3 sonal full-time employment at a place in the United 

4 States to which United States workers can be re5 ferred. 

6 ‘‘(9) LAYING OFF.— 

7 ‘‘(A) IN GENERAL.—The term ‘laying off’, 

8 with respect to a worker— 

9 ‘‘(i) means to cause the worker’s loss 

10 of employment, other than through a dis11 charge for inadequate performance, viola12 tion of workplace rules, cause, voluntary 

13 departure, voluntary retirement, contract 

14 impossibility (as described in section 

15 218A(b)(4)(D)), or temporary suspension 

16 of employment due to weather, markets, or 

17 other temporary conditions; but 

18 ‘‘(ii) does not include any situation in 

19 which the worker is offered, as an alter20 native to such loss of employment, a simi21 lar employment opportunity with the same 

22 employer (or, in the case of a placement of 

23 a worker with another employer under sec24 tion 218(b)(2)(E), with either employer de25 scribed in such section) at equivalent or 


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1 higher compensation and benefits than the 

2 position from which the employee was dis3 charged, regardless of whether or not the 

4 employee accepts the offer. 

5 ‘‘(B) STATUTORY CONSTRUCTION.—Noth6 ing in this paragraph is intended to limit an 

7 employee’s rights under a collective bargaining 

8 agreement or other employment contract. 

9 ‘‘(10) REGULATORY DROUGHT.—The term ‘reg10 ulatory drought’ means a decision subsequent to the 

11 filing of the application under section 218 by an en12 tity not under the control of the employer making 

13 such filing which restricts the employer’s access to 

14 water for irrigation purposes and reduces or limits 

15 the employer’s ability to produce an agricultural 

16 commodity, thereby reducing the need for labor. 

17 ‘‘(11) SEASONAL.—Labor is performed on a 

18 ‘seasonal’ basis if— 

19 ‘‘(A) ordinarily, it pertains to or is of the 

20 kind exclusively performed at certain seasons or 

21 periods of the year; and 

22 ‘‘(B) from its nature, it may not be contin23 uous or carried on throughout the year. 


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1 ‘‘(12) SECRETARY.—Except as otherwise pro2 vided, the term ‘Secretary’ means the Secretary of 

3 Homeland Security. 

4 ‘‘(13) TEMPORARY.—A worker is employed on a 

5 ‘temporary’ basis where the employment is intended 

6 not to exceed 10 months. 

7 ‘‘(14) UNITED STATES WORKER.—The term 

8 ‘United States worker’ means any worker, whether 

9 a national of the United States, an alien lawfully ad10 mitted for permanent residence, or any other alien, 

11 who is authorized to work in the job opportunity 

12 within the United States, except an alien admitted 

13 or otherwise provided status under section 

14 101(a)(15)(H)(ii)(a).’’. 

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

16 the Immigration and Nationality Act (8 U.S.C. 1101 et 

17 seq.) is amended by striking the item relating to section 

18 218 and inserting the following: 

‘‘Sec. 218. H–2A employer applications. 

‘‘Sec. 218A. H–2A employment requirements. 

‘‘Sec. 218B. Procedure for admission and extension of stay of H–2A workers. 

‘‘Sec. 218C. Worker protections and labor standards enforcement. 

‘‘Sec. 218D. Definitions.’’. 

19 CHAPTER 4—MISCELLANEOUS 

20 PROVISIONS 

21 SEC. 461. DETERMINATION AND USE OF USER FEES. 

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1 ployment of aliens pursuant to the amendment made by 

2 section 451(a) of this Act and a collection process for such 

3 fees from employers. Such fees shall be the only fees 

4 chargeable to employers for services provided under such 

5 amendment. 

6 (b) DETERMINATION OF SCHEDULE.— 

7 (1) IN GENERAL.—The schedule under sub8 section (a) shall reflect a fee rate based on the num9 ber of job opportunities indicated in the employer’s 

10 application under section 218 of the Immigration 

11 and Nationality Act, as amended by section 451 of 

12 this Act, and sufficient to provide for the direct 

13 costs of providing services related to an employer’s 

14 authorization to employ aliens pursuant to the 

15 amendment made by section 451(a) of this Act, to 

16 include the certification of eligible employers, the 

17 issuance of documentation, and the admission of eli18 gible aliens. 

19 (2) PROCEDURE.— 

20 (A) IN GENERAL.—In establishing and ad21 justing such a schedule, the Secretary shall 

22 comply with Federal cost accounting and fee 

23 setting standards. 

24 (B) PUBLICATION AND COMMENT.—The 

25 Secretary shall publish in the Federal Register 


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1 an initial fee schedule and associated collection 

2 process and the cost data or estimates upon 

3 which such fee schedule is based, and any sub4 sequent amendments thereto, pursuant to which 

5 public comment shall be sought and a final rule 

6 issued. 

7 (c) USE OF PROCEEDS.—Notwithstanding any other 

8 provision of law, all proceeds resulting from the payment 

9 of the fees pursuant to the amendment made by section 

10 451(a) of this Act shall be available without further appro11 priation and shall remain available without fiscal year lim12 itation to reimburse the Secretary, the Secretary of State, 

13 and the Secretary of Labor for the costs of carrying out— 

14 (1) sections 218 and 218B of the Immigration 

15 and Nationality Act, as amended and added, respec16 tively, by section 451 of this Act; and 

17 (2) the provisions of this Act. 

18 SEC. 462. REGULATIONS. 

19 (a) REQUIREMENT FOR THE SECRETARY TO CON20 SULT.—The Secretary shall consult with the Secretary of 

21 Labor and the Secretary of Agriculture during the promul22 gation of all regulations to implement the duties of the 

23 Secretary under this Act and the amendments made by 

24 this Act. 


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1 (b) REQUIREMENT FOR THE SECRETARY OF STATE

2 TO CONSULT.—The Secretary of State shall consult with 

3 the Secretary, the Secretary of Labor, and the Secretary 

4 of Agriculture on all regulations to implement the duties 

5 of the Secretary of State under this Act and the amend6 ments made by this Act. 

7 (c) REQUIREMENT FOR THE SECRETARY OF LABOR

8 TO CONSULT.—The Secretary of Labor shall consult with 

9 the Secretary of Agriculture and the Secretary on all regu10 lations to implement the duties of the Secretary of Labor 

11 under this Act and the amendments made by this Act. 

12 (d) DEADLINE FOR ISSUANCE OF REGULATIONS.— 

13 All regulations to implement the duties of the Secretary, 

14 the Secretary of State, and the Secretary of Labor created 

15 under sections 218, 218A, 218B, 218C, and 218D of the 

16 Immigration and Nationality Act, as amended or added 

17 by section 451 of this Act, shall take effect on the effective 

18 date of section 451 and shall be issued not later than 1 

19 year after the date of enactment of this Act. 

20 SEC. 463. REPORTS TO CONGRESS. 

21 (a) ANNUAL REPORT.—Not later than September 30 

22 of each year, the Secretary shall submit a report to Con23 gress that identifies, for the previous year— 

24 (1) the number of job opportunities approved 

25 for employment of aliens admitted under section 


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1 101(a)(15)(H)(ii)(a) of the Immigration and Nation2 ality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)), and the 

3 number of workers actually admitted, disaggregated 

4 by State and by occupation; 

5 (2) the number of such aliens reported to have 

6 abandoned employment pursuant to subsection 

7 (e)(2) of section 218B of such Act, as added by sec8 tion 451; 

9 (3) the number of such aliens who departed the 

10 United States within the period specified in sub11 section (d) of such section 218B; 

12 (4) the number of aliens who applied for blue 

13 card status pursuant to section 431(a); 

14 (5) the number of aliens who were granted such 

15 status pursuant section 431(a); 

16 (6) the number of aliens who applied for an ad17 justment of status pursuant to section 433(a); and 

18 (7) the number of aliens who received an ad19 justment of status pursuant section 433(a). 

20 (b) IMPLEMENTATION REPORT.—Not later than 180 

21 days after the date of the enactment of this Act, the Sec22 retary shall prepare and submit to Congress a report that 

23 describes the measures being taken and the progress made 

24 in implementing this Act. 


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1 SEC. 464. EFFECTIVE DATE. 

2 The amendments made by section 451 and section 

3 461 shall take effect 1 year after the date of the enact4 ment of this Act. 

5 TITLE V—STRENGTHENING THE 

6 U.S. ECONOMY AND WORKFORCE 

7 Subtitle A—Immigration and Labor 

8 CHAPTER 1—IMMIGRATION AND LABOR 

9 MARKETS 

10 SEC. 501. COMMISSION ON IMMIGRATION AND LABOR MAR11 KETS. 

12 (a) ESTABLISHMENT OF COMMISSION.— 

13 (1) IN GENERAL.—There is established a per14 manent, independent, Federal agency within the Ex15 ecutive Branch of the United States to be known as 

16 the Commission on Immigration and Labor Markets 

17 (referred to in this section as ‘‘Commission’’). 

18 (2) PURPOSES.—Through objective, thorough, 

19 accurate and nonpartisan review and analysis, the 

20 purposes of the Commission are to— 

21 (A) establish employment-based immigra22 tion policies that promote America’s economic 

23 growth and competitiveness while minimizing 

24 job displacement, wage depression and unau25 thorized employment in the United States; 


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1 (B) create and implement a policy-focused 

2 research agenda on the economic impacts of im3 migration at the national, regional, state, indus4 try and occupation levels; 

5 (C) collect and analyze information about 

6 employment-based immigration and the labor 

7 market and share the data and analysis with 

8 lawmakers, researchers and the American pub9 lic; 

10 (D) recommend to the Congress and the 

11 President on a regular basis an evidence-based 

12 methodology for determining the level of em13 ployment-based immigration; and 

14 (E) recommend to Congress and the Presi15 dent the numeric levels and characteristics of 

16 workers to be admitted in various employment17 based visa categories. 

18 (3) MEMBERSHIP.—The Commission shall be 

19 composed of— 

20 (A) 7 voting members— 

21 (i) who shall be appointed by the 

22 President, with the advice and consent of 

23 the Senate, no later than 6 months after 

24 the date of the enactment of this Act; 


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1 (ii) who shall serve for 5-year stag2 gered terms; 

3 (iii) one of whom the President shall 

4 appoint as Chair of the commission to 

5 serve a 6-year term, which can be extended 

6 for 1 additional 3-year term; 

7 (iv) who shall have expertise in eco8 nomics, demography, sociology, labor, busi9 ness, civil rights, immigration or other per10 tinent qualifications or experience; and 

11 (v) not more than 4 of whom may be 

12 members of the same political party; and 

13 (B) 8 ex-officio members, including— 

14 (i) the Secretary; 

15 (ii) the Secretary of State; 

16 (iii) the Attorney General; 

17 (iv) the Secretary of Labor; 

18 (v) the Secretary of Commerce 

19 (vi) the Secretary of Health and 

20 Human Services; 

21 (vii) the Secretary of Agriculture; and 

22 (viii) The Commissioner of Social Se23 curity. 


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1 (4) VACANCIES.—Any vacancy in the Commis2 sion shall be filled in the same manner as the origi3 nal appointment. 

4 (5) MEETINGS.— 

5 (A) INITIAL MEETING.—The Commission 

6 shall meet and begin carrying out the duties de7 scribed in subsection (b) as soon as practicable. 

8 (B) SUBSEQUENT MEETINGS.—After its 

9 initial meeting, the Commission shall meet upon 

10 the call of the Chair or a majority of its mem11 bers. 

12 (C) QUORUM.—Five voting members of the 

13 Commission shall constitute a quorum. 

14 (b) DUTIES OF THE COMMISSION.—The Commission 

15 shall— 

16 (1) collect, analyze and publish data regard17 ing— 

18 (A) the historic migration patterns to and 

19 from the United States and demographic 

20 trends, including the birth rate, education lev21 els, and age profiles of the immigrant and na22 tive population of the United States; 

23 (B) the impact of employment-based immi24 gration— 


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1 (i) at the national, regional, state and 

2 local levels; 

3 (ii) within industries and business sec4 tors; 

5 (iii) on occupations and occupational 

6 levels; 

7 (iv) on small business; and 

8 (v) on employment and unemployment 

9 levels; 

10 (C) the current and anticipated needs of 

11 employers for skilled and unskilled labor; 

12 (D) the current and anticipated supply of 

13 skilled and unskilled labor; 

14 (E) the impact of employment-based immi15 gration on the economic growth and competi16 tiveness and labor standards, conditions, and 

17 wages; 

18 (F) the extent and impact of unauthorized 

19 employment in the United States; 

20 (G) the factors that determine the eco21 nomic success of immigrants to the United 

22 States; and 

23 (H) any other matters regarding the im24 pact of employment-based immigration that the 

25 Commission considers appropriate; 


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1 (2) after soliciting and reviewing input from the 

2 public, develop and publish in the federal register a 

3 plan for the performance of its duties, including a 

4 description of the methodologies it will employ to 

5 measure the need for immigrant workers or non6 immigrant foreign workers in different regions, 

7 states, industries and occupations; 

8 (3) submit to the Congress, according to the 

9 procedures in subsection (c), the methodologies it 

10 proposes to use to determine the need for immigrant 

11 workers and nonimmigrant foreign workers; 

12 (4) submit to the Congress, according to the 

13 procedures in subsection (c), any amendments which 

14 the Commission deems appropriate to the numeric 

15 levels of visas established by the Immigration and 

16 Nationality Act for temporary or permanent employ17 ment; 

18 (5) annually thereafter, submit a report to the 

19 President and Congress that— 

20 (A) contains any amendments to the nu21 meric levels set according to the procedures in 

22 subsection (c)(2), which shall take effect in the 

23 same manner described therein unless dis24 approved by the passage of a resolution in Con25 gress; and 


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1 (B) makes other recommendations regard2 ing employment-based visas or immigration, in3 cluding legislative or administrative action, that 

4 the Commission determines to be in the na5 tional interest; and 

6 (6) establish collaborative relationships with 

7 international organizations and agencies in countries 

8 of origin to encourage the deposit of remittances 

9 with financial institutions that will reinvest the re10 mittances received from the United States to pro11 mote job development in those countries of origin 

12 that have sent immigrants to the United States. 

13 (c) PROCEDURES TO DETERMINE APPROPRIATE

14 LEVEL OF EMPLOYMENT BASED IMMIGRATION FOR TEM15 PORARY OR PERMANENT EMPLOYMENT.— 

16 (1) METHODOLOGY.—Not later than 12 months 

17 after Congress appropriates funds for its operation, 

18 the Commission shall submit to Congress the meth19 odologies it proposes to use to determine the need 

20 for immigrant workers and nonimmigrant foreign 

21 workers. Congress shall have 90 days to enact a res22 olution of disapproval. In the absence of such action, 

23 the methodologies shall stand approved. 

24 (2) INITIAL DETERMINATION OF NUMERIC LEV25 ELS.—At the beginning of the first regular session 


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1 of Congress after the methodologies in paragraph 

2 (1) have been approved, but not later than the first 

3 day of April, the Commission shall submit to Con4 gress the numeric levels of visas it recommends, by 

5 majority vote, to be made available for temporary or 

6 permanent employment under the Immigration and 

7 Nationality Act and a statement of the reasons 

8 therefore. Congress shall have 90 days to enact a 

9 resolution of disapproval. In absence of such action, 

10 the numeric levels shall stand approved and be im11 plemented at the start of the next fiscal year. 

12 (3) ANNUAL DETERMINATIONS.—Once the ini13 tial determination of numeric levels is established, 

14 the Commission shall annually thereafter submit to 

15 Congress any increase or decrease in numeric levels 

16 of employment based immigration it recommends by 

17 majority vote, which shall be disapproved by Con18 gress in the same manner as in clause (2), or stand 

19 approved for the next fiscal year. 

20 (d) POWERS OF THE COMMISSION.— 

21 (1) The Commission, by vote of a majority of 

22 the members present and voting, shall have the 

23 power to— 

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1 sion as are necessary to carry out the purposes 

2 of this section; 

3 (B) appoint and fix the salary and duties 

4 of the Staff Director of the Commission, who 

5 shall serve at the discretion of the Commission 

6 and who shall be compensated at a rate not to 

7 exceed the highest rate now or hereafter pre8 scribed for Level 6 of the Senior Executive 

9 Service Schedule (5 U.S.C. 5382), and such 

10 other personnel as may be necessary to enable 

11 the Commission to carry out its functions; 

12 (C) deny, revise, or ratify any request for 

13 regular, supplemental, or deficiency appropria14 tions prior to any submission of such request to 

15 the Office of Management and Budget by the 

16 Chair; 

17 (D) utilize, with their consent, the services, 

18 equipment, personnel, information, and facilities 

19 of other Federal, State, local, and private agen20 cies and instrumentalities with or without reim21 bursement therefor; 

22 (E) without regard to section 3324 of title 

23 31, United States Code, enter into and perform 

24 such contracts, leases, cooperative agreements, 

25 and other transactions as may be necessary in 


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1 the conduct of the functions of the Commission, 

2 with any public agency, or with any person, 

3 firm, association, corporation, educational insti4 tution, or nonprofit organization; 

5 (F) accept and employ, in carrying out the 

6 provisions of this title, voluntary and uncom7 pensated services, notwithstanding the provi8 sions of section 1342 of title 31, United States 

9 Code, however, individuals providing such serv10 ices shall not be considered Federal employees 

11 except for purposes of chapter 81 of title 5, 

12 United States Code, with respect to job-in13 curred disability and title 28, United States 

14 Code, with respect to tort claims; 

15 (G) request such information, data, and re16 ports from any Federal agency as the Commis17 sion may from time to time require and as may 

18 be produced consistent with other law; 

19 (H) arrange with the head of any other 

20 Federal agency for the performance by such 

21 agency of any function of the Commission, with 

22 or without reimbursement; 

23 (I) establish a research and development 

24 program within the Commission for the purpose 

25 of understanding and documenting the effects 


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1 of immigration and the temporary admission of 

2 foreign workers on the labor market and na3 tional competitiveness; 

4 (J) collect systematically the data obtained 

5 from studies, research, and the empirical expe6 rience of public and private agencies concerning 

7 the need for and effects of employment-based 

8 immigration and the admission of non9 immigrant workers; 

10 (K) interview and confer with state and 

11 local officials, representatives of labor and in12 dustry, and experts in academia to obtain infor13 mation about the need for or benefit of addi14 tional immigrant or nonimmigrant workers; 

15 (L) make recommendations to Congress 

16 concerning modification or enactment of stat17 utes relating to matters that the Commission 

18 finds to be necessary and advisable to carry out 

19 an effective employment-based immigration pol20 icy; 

21 (M) hold hearings and call witnesses to as22 sist the Commission in the exercise of its pow23 ers or duties; 


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1 (N) retain and, in its discretion pay rea2 sonable attorneys’ fees out if its appropriated 

3 funds to, private attorneys who— 

4 (i) shall provide legal advice to the 

5 Commission in the conduct of its work, or 

6 to appear for or represent the Commission 

7 in any case in which the Commission is au8 thorized by law to represent itself, or in 

9 which the Commission is representing itself 

10 with the consent of the Department of 

11 Justice; and 

12 (ii) when serving as officers or em13 ployees of the United States, shall be con14 sidered special government employees as 

15 defined in section 202(a) of title 18; and 

16 (O) grant incentive awards to its employ17 ees pursuant to chapter 45 of title 5, United 

18 States Code. 

19 (2) The Commission shall have such other pow20 ers and duties and shall perform such other func21 tions as may be necessary to carry out the purposes 

22 of this section, and may delegate to any member or 

23 designated person such powers as may be appro24 priate. 


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1 (e) INFORMATION AND ASSISTANCE FROM FEDERAL

2 AGENCIES.— 

3 (1) INFORMATION.—The head of any Federal 

4 department or agency that receives a request from 

5 the Commission for information, including sugges6 tions, estimates, and statistics, as the Commission 

7 considers necessary to carry out the provisions of 

8 this section, shall furnish such information to the 

9 Commission, to the extent allowed by law. 

10 (2) ASSISTANCE.— 

11 (A) GENERAL SERVICES ADMINISTRA12 TION.—The Administrator of General Services 

13 shall, on a reimbursable basis, provide the Com14 mission with administrative support and other 

15 services for the performance of the Commis16 sion’s functions. 

17 (B) OTHER FEDERAL AGENCIES.—The de18 partments and agencies of the United States 

19 may provide the Commission with such services, 

20 funds, facilities, staff, and other support serv21 ices as heads of such departments and agencies 

22 determine advisable and authorized by law. 

23 (f) PERSONNEL MATTERS.— 

24 (1) STAFF.— 


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1 (A) Except as provided under subpara2 graph (B), any personnel of the Commission 

3 who are employees shall be considered to be em4 ployees under section 2105 of title 5, United 

5 States Code, for purposes of chapters 63, 81, 

6 83, 84, 85, 87, 89 and 90 of such title. 

7 (B) Subparagraph (A) shall not apply to 

8 members of the Commission. 

9 (2) DETAILEES.—Any employee of the Federal 

10 Government may be detailed to the Commission 

11 without reimbursement from the Commission. Such 

12 detailee shall retain the rights, status, and privileges 

13 of his or her regular employment without interrup14 tion. 

15 (3) CONSULTANT SERVICES.—The Commission 

16 may procure the services of experts and consultants 

17 in accordance with section 3109 of title 5, United 

18 States Code, at rates not to exceed the daily rate 

19 paid a person occupying a position at level IV of Ex20 ecutive Schedule under section 5315 of such title 5. 

21 (g) COMPENSATION AND TRAVEL EXPENSES.— 

22 (1) COMPENSATION.—Each voting member of 

23 the Commission may be compensated at a rate not 

24 to exceed the daily equivalent of the annual rate of 

25 basic pay in effect for a position at level IV of the 


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1 Executive Schedule under section 5315 of title 5, 

2 United States Code, for each day during which that 

3 member is engaged in the actual performance of the 

4 duties of the Commission. 

5 (2) TRAVEL EXPENSES.—Members of the Com6 mission shall be allowed travel expenses, including 

7 per diem in lieu of subsistence, in the same manner 

8 as persons employed intermittently in Government 

9 service are allowed expenses under section 5703(b) 

10 of title 5, United States Code, while away from their 

11 homes or regular places of business in performance 

12 of services for the Commission. 

13 (h) AUTHORIZATION OF APPROPRIATIONS.—There 

14 are authorized to carry out the purposes of this section 

15 such sums as may be necessary. 

16 SEC. 502. SECURITY AND PROSPERITY ACCOUNT. 

17 Section 286 (8 U.S.C. 1356) is amended by adding 

18 at the end the following new subsection: 

19 ‘‘(w) PROSPERITY ACCOUNT.— 

20 ‘‘(1) ESTABLISHMENT.—There is established in 

21 the general fund of the Treasury an account, which 

22 shall be known as the ‘Security and Prosperity Ac23 count’. 

24 ‘‘(2) DEPOSITS.—Notwithstanding any other 

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1 setting receipts into the Security and Prosperity Ac2 count— 

3 ‘‘(A) all fines collected under section 

4 401(g)(2)(B) of the CIR ASAP Act of 2009; 

5 and 

6 ‘‘(B) all fees collected under section 

7 401(g)(2)(A) of such Act. 

8 ‘‘(3) USE OF FUNDS.—The fees and fines de9 posited into the Security and Prosperity Fund shall 

10 be allocated as follows: 

11 ‘‘(A) 25 percent shall be allocated for 

12 ‘Training and Employment Services’ for activi13 ties under the Workforce Investment Act (WIA) 

14 of 1998 which shall distributed as follows: 

15 ‘‘(i) 25 percent for grants to the 

16 States for adult employment and training 

17 activities. 

18 ‘‘(ii) 20 percent for grants to the 

19 States for dislocated worker employment 

20 and training activities. 

21 ‘‘(iii) 10 percent shall be allocated for 

22 the dislocated workers assistance national 

23 reserve, except that— 

24 ‘‘(I) such funds shall be made 

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1 tities that serve areas of high unem2 ployment or high poverty and only for 

3 purposes described in subsection 

4 173(a)(1) of the WIA; and 

5 ‘‘(II) the Secretary of Labor shall 

6 ensure that applicants for such funds 

7 demonstrate how income support, 

8 child care and other supportive serv9 ices necessary for an individual’s par10 ticipation in job training will be pro11 vided; and 

12 ‘‘(iv) 45 percent for a program of 

13 competitive grants for worker training and 

14 placement in high growth and emerging in15 dustry sectors. 

16 ‘‘(B) 5 percent shall be allocated for the 

17 American Worker Recruit and Match System 

18 described in section 503 of the CIR ASAP Act 

19 of 2009. 

20 ‘‘(C) 10 percent shall be allocated to the 

21 Secretary of Homeland Security for the proc22 essing of immigration benefits applications and 

23 to subsidize the costs of immigration benefits 

24 applications described in section 321. 


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1 ‘‘(D) 3 percent shall be allocated to imple2 ment title VI of the CIR ASAP Act of 2009. 

3 ‘‘(E) 2 percent shall be allocated for the 

4 establishment and operations of the Commis5 sion on Labor Markets and Immigration as de6 scribed in section 501 of such Act. 

7 ‘‘(F) 30 percent shall be allocated to im8 plement the amendments made by title II of the 

9 CIR ASAP Act of 2009, and enforcement ef10 forts mandated in such amendments to ensure 

11 compliance with the employment practices de12 scribed in such amendments. 

13 ‘‘(G) 25 percent distributed equally among 

14 the programs established in title I of the CIR 

15 ASAP Act of 2009 for border security, deten16 tion, and enforcement.’’. 

17 SEC. 503. AMERICAN RECRUIT AND MATCH SYSTEM. 

18 (a) ESTABLISHMENT OF PROGRAM.—Each State 

19 Workforce Agency (SWA) shall establish an Internet20 based program entitled ‘‘American Worker Recruit and 

21 Match’’ program, to be incorporated with existing SWA 

22 Web-based job search engines, if any— 

23 (1) whereby employers may electronically post 

24 employment opportunities in fields and occupations 

25 that have traditionally relied on unauthorized labor, 


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1 such as hospitality, agriculture, construction, domes2 tic services, food services and as determined by the 

3 Secretary of Labor; 

4 (2) whereby individuals may electronically post 

5 employment profiles; and 

6 (3) that shall be searchable and shall match 

7 employers with qualified individuals. 

8 (b) SINGLE INTERNET LINK.—The Secretary of 

9 Labor shall establish a publicly accessible Web page on 

10 the Internet website of the Department of Labor that pro11 vides a single internet link to each State workforce agen12 cy’s American Worker Recruit and Match program. 

13 (c) EDUCATION.—Each State workforce agency shall 

14 conduct monthly seminars that shall be publicly noticed, 

15 to educate employers and individuals regarding use of the 

16 American Recruit and Match System. 

17 (d) FUNDING.—Fees and fines deposited in the Pros18 perity Fund under section 286(w)(3)(B) of the Immigra19 tion and Nationality Act may be used to carry out this 

20 section. 


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1 CHAPTER 2—PROTECTION OF WORKERS 

2 RECRUITED ABROAD 

3 SEC. 511. PROTECTIONS FOR WORKERS RECRUITED 

4 ABROAD. 

5 (a) BASIC REQUIREMENTS.—(1) Each employer and 

6 foreign labor contractor who engages in foreign labor con7 tracting activity shall ascertain and disclose to each such 

8 worker who is recruited for employment the following in9 formation at the time of the worker’s recruitment: 

10 (A) The place of employment. 

11 (B) The compensation for the employment. 

12 (C) A description of employment activities. 

13 (D) The period of employment. 

14 (E) The transportation, housing, and any other 

15 employee benefit to be provided and any costs to be 

16 charged for each benefit. 

17 (F) The existence of any labor organizing ef18 fort, strike, lockout, or other labor dispute at the 

19 place of employment. 

20 (G) The existence of any arrangements with 

21 any owner or agent of any establishment in the area 

22 of employment under which the contractor or em23 ployer is to receive a commission or any other ben24 efit resulting from any sales (including the provision 

25 of services) by such establishment to the workers. 


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1 (H) Whether and the extent to which workers 

2 will be compensated through workers’ compensation, 

3 private insurance, or otherwise for injuries or death, 

4 including work related injuries and death, during the 

5 period of employment and, if so, the name of the 

6 State workers’ compensation insurance carrier or the 

7 name of the policyholder of the private insurance, 

8 the name and the telephone number of each person 

9 who must be notified of an injury or death, and the 

10 time period within which such notice must be given. 

11 (I) Any education or training to be provided or 

12 made available, including the nature and cost of 

13 such training, who will pay such costs, and whether 

14 the training is a condition of employment, continued 

15 employment, or future employment. 

16 (J) A statement, approved by the Secretary of 

17 Labor, describing the protections of this part for 

18 workers recruited abroad. 

19 (2) No foreign labor contractor or employer shall 

20 knowingly provide false or misleading information to any 

21 worker concerning any matter required to be disclosed in 

22 paragraph (1). 

23 (3) The information required to be disclosed by para24 graph (1) to workers shall be provided in written form. 

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1 essary and reasonable, in the language of the worker being 

2 recruited. The Department of Labor shall make forms 

3 available in English, Spanish, and other languages, as nec4 essary, which may be used in providing workers with infor5 mation required under this section. 

6 (4) No fees may be charged to a worker for recruit7 ment. 

8 (5) No employer or foreign labor contractor shall, 

9 without justification, violate the terms of any working ar10 rangement made by that contractor or employer. 

11 (6) The employer shall pay the transportation costs, 

12 including subsistence costs during the period of travel, for 

13 the worker from the place of recruitment to the place of 

14 employment and from the place of employment to such 

15 worker’s place of permanent residence. 

16 (7)(A) It shall be unlawful for an employer or a for17 eign labor contractor to fail or refuse to hire or to dis18 charge any individual, or otherwise discriminate against 

19 an individual with respect to compensation, terms, condi20 tions, or privileges of employment because such individ21 ual’s race, color, creed, sex, national origin, religion, age, 

22 or disability. 

23 (B) For the purposes of determining the existence of 

24 unlawful discrimination under subclause (A)— 


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1 (i) in the case of a claim of discrimination 

2 based on race, color, creed, sex, national origin, or 

3 religion, the same legal standards shall apply as are 

4 applicable under title VII of the Civil Rights Act of 

5 1964 (42 U.S.C. 2000e et seq.); 

6 (ii) in the case of a claim of discrimination 

7 based on unlawful discrimination based on age, the 

8 same legal standards shall apply as are applicable 

9 under the Age Discrimination in Employment Act of 

10 1967 (29 U.S.C. 621 et seq.); and 

11 (iii) in the case of a claim of discrimination 

12 based on disability, the same legal standards shall 

13 apply as are applicable under title I of the Ameri14 cans With Disabilities Act (42 U.S.C. 12101 et 

15 seq.). 

16 (b) OTHER WORKER PROTECTIONS.—(1) Each em17 ployer shall notify the Secretary of the identity of any for18 eign labor contractor involved in any foreign labor con19 tractor activity for or on behalf of the employer. The em20 ployer shall be subject to the civil remedies of this chapter 

21 for violations committed by such foreign labor contractor 

22 to the same extent as if the employer had committed the 

23 violation. The employer shall notify the Secretary of the 

24 identity of such a foreign labor contractor whose activities 

25 do not comply with this chapter. 


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1 (2) The Secretary shall maintain a list of all foreign 

2 labor contractors whom the Secretary knows or believes 

3 have been involved in violations of this chapter, and make 

4 that list publicly available. The Secretary shall provide a 

5 procedure by which an employer, a foreign labor con6 tractor, or someone acting on behalf of such contractor 

7 may seek to have a foreign labor contractor’s name re8 moved from such list by demonstrating to the Secretary’s 

9 satisfaction that the foreign labor contractor has not vio10 lated this chapter in the previous five years. 

11 (3) No foreign labor contractor shall violate, without 

12 justification, the terms of any written agreements made 

13 with an employer pertaining to any contracting activity or 

14 worker protection under this chapter. 

15 (c) DISCRIMINATION PROHIBITED AGAINST WORK16 ERS SEEKING RELIEF UNDER THIS CHAPTER.—No per17 son shall intimidate, threaten, restrain, coerce, blacklist, 

18 discharge, or in any manner discriminate against any 

19 worker because such worker has, with just cause, filed any 

20 complaint or instituted, or caused to be instituted, any 

21 proceeding under or related to this chapter, or has testi22 fied or is about to testify in any such proceedings, or be23 cause of the exercise, with just cause, by such worker on 

24 behalf of himself or others of any right or protection af25 forded by this chapter. 


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1 SEC. 512. ENFORCEMENT PROVISIONS. 

2 (a) CRIMINAL SANCTIONS.—Whoever knowingly vio3 lates this chapter shall be fined under title 18, United 

4 States Code, or imprisoned not more than one year, or 

5 both. Upon conviction, after a first conviction under this 

6 section, for a second or subsequent violation of this chap7 ter, the defendant shall be fined under title 18, United 

8 States Code, or imprisoned not more than three years, or 

9 both. 

10 (b) ADMINISTRATIVE SANCTIONS.—(1)(A) Subject to 

11 subparagraph (B), the Secretary may assess a civil money 

12 penalty of not more than $5,000 on any person who vio13 lates this chapter. 

14 (B) In determining the amount of any penalty to be 

15 assessed under subparagraph (A), the Secretary shall take 

16 into account (i) the previous record of the person in terms 

17 of compliance with this chapter and with comparable re18 quirements of the Fair Labor Standards Act of 1938, and 

19 with regulations promulgated under such Acts, and (ii) the 

20 gravity of the violation. 

21 (2) Any employer who uses the services of a foreign 

22 labor contractor who is on the list maintained by the Sec23 retary pursuant to section 2(b)(2), shall, if the actions of 

24 such foreign labor contractor have contributed to a viola25 tion of this chapter by the employer, be fined $10,000 per 


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1 violation in addition to any other fines or penalties for 

2 which the employer may be liable for the violation. 

3 (c) ACTIONS BY SECRETARY.—The Secretary may 

4 take such actions, including seeking appropriate injunctive 

5 relief and specific performance of contractual obligations, 

6 as may be necessary to assure employer compliance with 

7 terms and conditions of employment under this chapter 

8 and with this chapter. 

9 (d) WAIVER OF RIGHTS.—Agreements by employees 

10 purporting to waive or to modify their rights under this 

11 chapter shall be void as contrary to public policy. 

12 (e) REPRESENTATION IN COURT.—Except as pro13 vided in section 518(a) of title 28, United States Code, 

14 relating to litigation before the Supreme Court, the Solic15 itor of Labor may appear for and represent the Secretary 

16 in any civil litigation brought under this chapter, but all 

17 such litigation shall be subject to the direction and control 

18 of the Attorney General. 

19 SEC. 513. PROCEDURES IN ADDITION TO OTHER RIGHTS OF 

20 EMPLOYEES. 

21 The rights and remedies provided to workers by this 

22 chapter are in addition to, and not in lieu of, any other 

23 contractual or statutory rights and remedies of the work24 ers, and are not intended to alter or affect such rights 

25 and remedies. 


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1 SEC. 514. AUTHORITY TO PRESCRIBE REGULATIONS. 

2 The Secretary of Labor shall prescribe such regula3 tions as may be necessary to carry out this chapter. 

4 SEC. 515. DEFINITIONS. 

5 (a) IN GENERAL.—Except as otherwise provided by 

6 this chapter, for purposes of this chapter the terms used 

7 in this chapter shall have the same meanings, respectively, 

8 as are given those terms in section 3 of the Fair Labor 

9 Standards Act of 1938. 

10 (b) OTHER DEFINITIONS.—As used in this chapter: 

11 (1) The term ‘‘State’’ means any State of the 

12 United States and includes the District of Columbia, 

13 Puerto Rico, Guam, American Samoa, the Common14 wealth of the Northern Mariana Islands, and the 

15 Virgin Islands of the United States. 

16 (2) The term ‘‘foreign labor contractor’’ means 

17 any person who for any money or other valuable 

18 consideration paid or promised to be paid, performs 

19 any foreign labor contracting activity. 

20 (3) The term ‘‘foreign labor contracting activ21 ity’’ means recruiting, soliciting, hiring, employing, 

22 or furnishing, an individual who resides outside of 

23 the United States to be employed in the United 

24 States. 

25 (4) The term ‘‘Secretary’’ means the Secretary 

26 of Labor. 


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1 (5) The term ‘‘worker’’ means an individual 

2 who is the subject of foreign labor contracting activ3 ity. 

4 CHAPTER 3—TECHNICAL CORRECTION 

5 SEC. 521. TECHNICAL CORRECTION. 

6 Section 212 of the Immigration and Nationality Act 

7 is amended by redesignating the second subsection (t), as 

8 added by section 1(b)(2)(B) of the Act entitled ‘‘An Act 

9 to amend and extend the Irish Peace Process Cultural and 

10 Training Program Act of 1998’’ (Public Law 108–449 

11 (118 Stat. 3470)), as subsection (u). 

12 Subtitle B—Reforms of Certain 

13 Classes of Employment-based Visas 

14 CHAPTER 1—H–1B VISA FRAUD AND 

15 ABUSE PROTECTIONS 

16 Subchapter A—H–1B Employer Application 

17 Requirements 

18 SEC. 531. MODIFICATION OF APPLICATION REQUIRE19 MENTS. 

20 (a) GENERAL APPLICATION REQUIREMENTS.—Sub21 paragraph (A) of section 212(n)(1) of the Immigration 

22 and Nationality Act (8 U.S.C. 1182(n)(1)) is amended to 

23 read as follows: 

24 ‘‘(A) The employer— 


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1 ‘‘(i) is offering and will offer to H–1B non2 immigrants, during the period of authorized 

3 employment for each H–1B nonimmigrant, 

4 wages that are determined based on the best in5 formation available at the time the application 

6 is filed and which are not less than the highest 

7 of— 

8 ‘‘(I) the locally determined prevailing 

9 wage level for the occupational classifica10 tion in the area of employment; 

11 ‘‘(II) the median average wage for all 

12 workers in the occupational classification 

13 in the area of employment; and 

14 ‘‘(III) the median wage for skill level 

15 2 in the occupational classification found 

16 in the most recent Occupational Employ17 ment Statistics survey; and 

18 ‘‘(ii) will provide working conditions for 

19 such H–1B nonimmigrant that will not ad20 versely affect the working conditions of other 

21 workers similarly employed.’’. 

22 (b) INTERNET POSTING REQUIREMENT.—Subpara23 graph (C) of such section 212(n)(1) is amended— 

24 (1) by redesignating clause (ii) as subclause 

25 (II); 


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1 (2) by striking ‘‘(i) has provided’’ and inserting 

2 the following: 

3 ‘‘(ii)(I) has provided’’; and 

4 (3) by inserting before clause (ii), as redesig5 nated by paragraph (2) of this subsection, the fol6 lowing: 

7 ‘‘(i) has posted on the Internet website de8 scribed in paragraph (3), for at least 30 cal9 endar days, a detailed description of each posi10 tion for which a nonimmigrant is sought that 

11 includes a description of— 

12 ‘‘(I) the wages and other terms and 

13 conditions of employment; 

14 ‘‘(II) the minimum education, train15 ing, experience, and other requirements for 

16 the position; and 

17 ‘‘(III) the process for applying for the 

18 position; and’’. 

19 (c) WAGE DETERMINATION INFORMATION.—Sub20 paragraph (D) of such section 212(n)(1) is amended by 

21 inserting ‘‘the wage determination methodology used 

22 under subparagraph (A)(i),’’ after ‘‘shall contain’’. 

23 (d) APPLICATION OF REQUIREMENTS TO ALL EM24 PLOYERS.— 


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1 (1) NONDISPLACEMENT.—Subparagraph (E) of 

2 such section 212(n)(1) is amended— 

3 (A) in clause (i)— 

4 (i) by striking ‘‘90 days’’ both places 

5 it appears and inserting ‘‘180 days’’; and 

6 (ii) by striking ‘‘(i) In the case of an 

7 application described in clause (ii), the’’ 

8 and inserting ‘‘The’’; and 

9 (B) by striking clause (ii). 

10 (2) RECRUITMENT.—Subparagraph (G)(i) of 

11 such section 212(n)(1) is amended by striking ‘‘In 

12 the case of an application described in subparagraph 

13 (E)(ii), subject’’ and inserting ‘‘Subject’’. 

14 (e) REQUIREMENT FOR WAIVER.—Subparagraph (F) 

15 of such section 212(n)(1) is amended to read as follows: 

16 ‘‘(F) The employer shall not place, outsource, 

17 lease, or otherwise contract for the services or place18 ment of H–1B nonimmigrants with another em19 ployer unless the employer of the alien has been 

20 granted a waiver under paragraph (2)(E).’’. 

21 SEC. 532. NEW APPLICATION REQUIREMENTS. 

22 Section 212(n)(1) of the Immigration and Nationality 

23 Act (8 U.S.C. 1182(n)(1)) is amended by inserting after 

24 clause (ii) of subparagraph (G) the following: 


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1 ‘‘(H)(i) The employer has not advertised any 

2 available position specified in the application in an 

3 advertisement that states or indicates that— 

4 ‘‘(I) such position is only available to an 

5 individual who is or will be an H–1B non6 immigrant; or 

7 ‘‘(II) an individual who is or will be an H– 

8 1B nonimmigrant shall receive priority or a 

9 preference in the hiring process for such posi10 tion. 

11 ‘‘(ii) The employer has not solely recruited indi12 viduals who are or who will be H–1B nonimmigrants 

13 to fill such position. 

14 ‘‘(I) If the employer employs 50 or more em15 ployees in the United States, the sum of the number 

16 of such employees who are H–1B nonimmigrants 

17 plus the number of such employees who are non18 immigrants described in section 101(a)(15)(L) may 

19 not exceed 50 percent of the total number of em20 ployees. 

21 ‘‘(J) If the employer, in such previous period as 

22 the Secretary shall specify, employed 1 or more H– 

23 1B nonimmigrants, the employer shall submit to the 

24 Secretary the Internal Revenue Service Form W–2 

25 Wage and Tax Statement filed by the employer with 


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1 respect to the H–1B nonimmigrants for such pe2 riod.’’. 

3 SEC. 533. APPLICATION REVIEW REQUIREMENTS. 

4 (a) TECHNICAL AMENDMENT.—Section 212(n)(1) of 

5 the Immigration and Nationality Act (8 U.S.C. 

6 1182(n)(1)), as amended by section 102, is further 

7 amended in the undesignated paragraph at the end, by 

8 striking ‘‘The employer’’ and inserting the following: 

9 ‘‘(K) The employer.’’. 

10 (b) APPLICATION REVIEW REQUIREMENTS.—Sub11 paragraph (K) of such section 212(n)(1), as designated 

12 by subsection (a), is amended— 

13 (1) by inserting ‘‘and through the Department 

14 of Labor’s website, without charge.’’ after ‘‘D.C.’’; 

15 (2) by striking ‘‘only for completeness’’ and in16 serting ‘‘for completeness and clear indicators of 

17 fraud or misrepresentation of material fact,’’; 

18 (3) by striking ‘‘or obviously inaccurate’’ and 

19 inserting ‘‘, presents clear indicators of fraud or 

20 misrepresentation of material fact, or is obviously in21 accurate’’; 

22 (4) by striking ‘‘within 7 days of’’ and inserting 

23 ‘‘not later than 14 days after’’; and 

24 (5) by adding at the end the following: ‘‘If the 

25 Secretary’s review of an application identifies clear 


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1 indicators of fraud or misrepresentation of material 

2 fact, the Secretary may conduct an investigation and 

3 hearing in accordance with paragraph (2).’’. 

4 Subchapter B—Investigation and Disposition 

5 of Complaints Against H–1B 

6 SEC. 541. GENERAL MODIFICATION OF PROCEDURES FOR 

7 INVESTIGATION AND DISPOSITION. 

8 Subparagraph (A) of section 212(n)(2) of the Immi9 gration and Nationality Act (8 U.S.C. 1182(n)(2)) is 

10 amended— 

11 (1) by striking ‘‘(A) Subject’’ and inserting 

12 ‘‘(A)(i) Subject’’; 

13 (2) by striking ‘‘12 months’’ and inserting ‘‘24 

14 months’’; 

15 (3) by striking the last sentence; and 

16 (4) by adding at the end the following: 

17 ‘‘(ii)(I) Upon the receipt of such a com18 plaint, the Secretary may initiate an investiga19 tion to determine if such a failure or misrepre20 sentation has occurred. 

21 ‘‘(II) The Secretary may conduct surveys 

22 of the degree to which employers comply with 

23 the requirements of this subsection and may 

24 conduct annual compliance audits of employers 

25 that employ H–1B nonimmigrants. 


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1 ‘‘(III) The Secretary shall— 

2 ‘‘(aa) conduct annual compliance au3 dits of not less than 1 percent of the em4 ployers that employ H–1B nonimmigrants 

5 during the applicable calendar year; 

6 ‘‘(bb) conduct annual compliance au7 dits of each employer with more than 100 

8 employees who work in the United States 

9 if more than 15 percent of such employees 

10 are H–1B nonimmigrants; and 

11 ‘‘(cc) make available to the public an 

12 executive summary or report describing the 

13 general findings of the audits carried out 

14 pursuant to this subclause.’’. 

15 SEC. 542. INVESTIGATION, WORKING CONDITIONS, AND 

16 PENALTIES. 

17 Subparagraph (C) of section 212(n)(2) of the Immi18 gration and Nationality Act (8 U.S.C. 1182(n)(2)) is 

19 amended— 

20 (1) in clause (i)— 

21 (A) in the matter preceding subclause 

22 (I)— 

23 (i) by striking ‘‘a condition of para24 graph (1)(B), (1)(E), or (1)(F)’’ and in25 serting ‘‘a condition under subparagraph 


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1 (A), (B), (C)(i), (E), (F), (G)(i)(I), (H), 

2 (I), or (J) of paragraph (1)’’; and 

3 (ii) by striking ‘‘(1)(C)’’ and inserting 

4 ‘‘(1)(C)(ii)’’; and 

5 (B) in subclause (I)— 

6 (i) by striking ‘‘$1,000’’ and inserting 

7 ‘‘$2,000’’; and 

8 (ii) by striking ‘‘and’’ at the end; 

9 (C) in subclause (II), by striking the pe10 riod at the end and inserting a semicolon and 

11 ‘‘and’’; 

12 (D) by adding at the end the following: 

13 ‘‘(III) an employer that violates such subpara14 graph (A) shall be liable to the employees harmed by 

15 such violations for lost wages and benefits.’’; and 

16 (2) in clause (ii)— 

17 (A) in subclause (I)— 

18 (i) by striking ‘‘may’’ and inserting 

19 ‘‘shall’’; and 

20 (ii) by striking ‘‘$5,000’’ and insert21 ing ‘‘$10,000’’; and 

22 (B) in subclause (II), by striking the pe23 riod at the end and inserting a semicolon and 

24 ‘‘and’’; 

25 (C) by adding at the end the following: 


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1 ‘‘(III) an employer that violates such subpara2 graph (A) shall be liable to the employees harmed by 

3 such violations for lost wages and benefits.’’; and 

4 (3) in clause (iii)— 

5 (A) in the matter preceding subclause (I), 

6 by striking ‘‘90 days’’ both places it appears 

7 and inserting ‘‘180 days’’; 

8 (B) in subclause (I)— 

9 (i) by striking ‘‘may’’ and inserting 

10 ‘‘shall’’; and 

11 (ii) by striking ‘‘and’’ at the end; 

12 (C) in subclause (II), by striking the pe13 riod at the end and inserting a semicolon and 

14 ‘‘and’’; and 

15 (D) by adding at the end the following: 

16 ‘‘(III) an employer that violates subparagraph 

17 (A) of such paragraph shall be liable to the employ18 ees harmed by such violations for lost wages and 

19 benefits.’’; 

20 (4) in clause (iv)— 

21 (A) by inserting ‘‘to take, fail to take, or 

22 threaten to take or fail to take, a personnel ac23 tion, or’’ before ‘‘to intimidate’’; 

24 (B) by inserting ‘‘(I)’’ after ‘‘(iv)’’; and 

25 (C) by adding at the end the following: 


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1 ‘‘(II) An employer that violates this clause shall 

2 be liable to the employees harmed by such violation 

3 for lost wages and benefits.’’; and 

4 (5) in clause (vi)— 

5 (A) by amending subclause (I) to read as 

6 follows: 

7 ‘‘(I) It is a violation of this clause for an em8 ployer who has filed an application under this sub9 section— 

10 ‘‘(aa) to require an H–1B nonimmigrant to 

11 pay a penalty for ceasing employment with the 

12 employer prior to a date agreed to by the non13 immigrant and the employer (the Secretary 

14 shall determine whether a required payment is 

15 a penalty, and not liquidated damages, pursu16 ant to relevant State law); and 

17 ‘‘(bb) to fail to offer to an H–1B non18 immigrant, during the nonimmigrant’s period of 

19 authorized employment, on the same basis, and 

20 in accordance with the same criteria, as the em21 ployer offers to United States workers, benefits 

22 and eligibility for benefits, including— 

23 ‘‘(AA) the opportunity to participate 

24 in health, life, disability, and other insur25 ance plans; 


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1 ‘‘(BB) the opportunity to participate 

2 in retirement and savings plans; and 

3 ‘‘(CC) cash bonuses and noncash com4 pensation, such as stock options (whether 

5 or not based on performance).’’; and 

6 (B) in subclause (III), by striking 

7 ‘‘$1,000’’ and inserting ‘‘$2,000’’. 

8 SEC. 543. WAIVER REQUIREMENTS. 

9 (a) IN GENERAL.—Subparagraph (E) of section 

10 212(n)(2) of the Immigration and Nationality Act (8 

11 U.S.C. 1182(n)(2)) is amended to read as follows: 

12 ‘‘(E)(i) The Secretary of Labor may waive the prohi13 bition in paragraph (1)(F) if the Secretary determines 

14 that the employer seeking the waiver has established 

15 that— 

16 ‘‘(I) the employer with whom the H–1B non17 immigrant would be placed has not displaced, and 

18 does not intend to displace, a United States worker 

19 employed by the employer within the period begin20 ning 180 days before and ending 180 days after the 

21 date of the placement of the nonimmigrant with the 

22 employer; 

23 ‘‘(II) the H–1B nonimmigrant will not be con24 trolled and supervised principally by the employer 


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1 with whom the H–1B nonimmigrant would be 

2 placed; and 

3 ‘‘(III) the placement of the H–1B non4 immigrant is not essentially an arrangement to pro5 vide labor for hire for the employer with whom the 

6 H–1B nonimmigrant will be placed. 

7 ‘‘(ii) The Secretary shall grant or deny a waiver 

8 under this subparagraph not later than 7 days after the 

9 Secretary receives the application for such waiver.’’. 

10 (b) REQUIREMENT FOR RULES.— 

11 (1) RULES FOR WAIVERS.—The Secretary of 

12 Labor shall promulgate rules, after notice and a pe13 riod for comment, for an employer to apply for a 

14 waiver under subparagraph (E) of section 212(n)(2) 

15 of such Act, as amended by subsection (a). 

16 (2) REQUIREMENT FOR PUBLICATION.—The 

17 Secretary of Labor shall submit to Congress and 

18 publish in the Federal Register and other appro19 priate media a notice of the date that rules required 

20 by paragraph (1) are published. 

21 SEC. 544. INITIATION OF INVESTIGATIONS. 

22 Subparagraph (G) of section 212(n)(2) of the Immi23 gration and Nationality Act (8 U.S.C. 1182(n)(2)) is 

24 amended— 


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1 (1) in clause (i), by striking ‘‘if the Secretary’’ 

2 and all that follows and inserting ‘‘with regard to 

3 the employer’s compliance with the requirements of 

4 this subsection.’’; 

5 (2) in clause (ii), by striking ‘‘and whose iden6 tity’’ and all that follows through ‘‘failure or fail7 ures.’’ and inserting ‘‘the Secretary of Labor may 

8 conduct an investigation into the employer’s compli9 ance with the requirements of this subsection.’’; 

10 (3) in clause (iii), by striking the last sentence; 

11 (4) by striking clauses (iv) and (v); 

12 (5) by redesignating clauses (vi), (vii), and (viii) 

13 as clauses (iv), (v), and (vi), respectively; 

14 (6) in clause (iv), as so redesignated, by strik15 ing ‘‘meet a condition described in clause (ii), unless 

16 the Secretary of Labor receives the information not 

17 later than 12 months’’ and inserting ‘‘comply with 

18 the requirements under this subsection, unless the 

19 Secretary of Labor receives the information not later 

20 than 24 months’’; 

21 (7) by amending clause (v), as so redesignated, 

22 to read as follows: 

23 ‘‘(v) The Secretary of Labor shall provide no24 tice to an employer of the intent to conduct an in25 vestigation. The notice shall be provided in such a 


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1 manner, and shall contain sufficient detail, to permit 

2 the employer to respond to the allegations before an 

3 investigation is commenced. The Secretary is not re4 quired to comply with this clause if the Secretary de5 termines that such compliance would interfere with 

6 an effort by the Secretary to investigate or secure 

7 compliance by the employer with the requirements of 

8 this subsection. A determination by the Secretary 

9 under this clause shall not be subject to judicial re10 view.’’; 

11 (8) in clause (vi), as so redesignated, by strik12 ing ‘‘An investigation’’ and all that follows through 

13 ‘‘the determination.’’ and inserting ‘‘If the Secretary 

14 of Labor, after an investigation under clause (i) or 

15 (ii), determines that a reasonable basis exists to 

16 make a finding that the employer has failed to com17 ply with the requirements under this subsection, the 

18 Secretary shall provide interested parties with notice 

19 of such determination and an opportunity for a 

20 hearing in accordance with section 556 of title 5, 

21 United States Code, not later than 120 days after 

22 the date of such determination.’’; and 

23 (9) by adding at the end the following: 

24 ‘‘(vii) If the Secretary of Labor, after a hear25 ing, finds a reasonable basis to believe that the emVerDate Nov 24 2008 00:39 Dec 17, 2009 Jkt 089200 PO 00000 Frm 00540 Fmt 6652 Sfmt 6201 E:\BILLS\H4321.IH H4321

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1 ployer has violated the requirements under this sub2 section, the Secretary shall impose a penalty under 

3 subparagraph (C).’’. 

4 SEC. 545. INFORMATION SHARING. 

5 Subparagraph (H) of section 212(n)(2) of the Immi6 gration and Nationality Act (8 U.S.C. 1182(n)(2)) is 

7 amended to read as follows: 

8 ‘‘(H) The Director of United States Citizenship and 

9 Immigration Services shall provide the Secretary of Labor 

10 with any information contained in the materials submitted 

11 by employers of H–1B nonimmigrants as part of the adju12 dication process that indicates that the employer is not 

13 complying with visa program requirements for H–1B non14 immigrants. The Secretary may initiate and conduct an 

15 investigation and hearing under this paragraph after re16 ceiving information of noncompliance under this subpara17 graph.’’. 

18 SEC. 546. CONFORMING AMENDMENT. 

19 Subparagraph (F) of section 212(n)(2) of the Immi20 gration and Nationality Act (8 U.S.C. 1182) is amended 

21 by striking ‘‘The preceding sentence shall apply to an em22 ployer regardless of whether or not the employer is an H– 

23 1B-dependent employer.’’. 


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1 Subchapter C—Other H–1B Provisions 

2 SEC. 551. POSTING AVAILABLE H–1B POSITIONS THROUGH 

3 THE DEPARTMENT OF LABOR. 

4 (a) DEPARTMENT OF LABOR WEBSITE.—Paragraph 

5 (3) of section 212(n) of the Immigration and Nationality 

6 Act (8 U.S.C. 1182(n)) is amended to read as follows: 

7 ‘‘(3)(A) Not later than 90 days after the date 

8 of the enactment of the H–1B and L–1 Visa Reform 

9 Act of 2009, the Secretary of Labor shall establish 

10 a searchable Internet website for posting positions 

11 as required by paragraph (1)(C). Such website shall 

12 be available to the public without charge. 

13 ‘‘(B) The Secretary may work with private com14 panies or nonprofit organizations to develop and op15 erate the Internet website described in subparagraph 

16 (A). 

17 ‘‘(C) The Secretary may promulgate rules, after 

18 notice and a period for comment, to carry out the 

19 requirements of this paragraph.’’. 

20 (b) REQUIREMENT FOR PUBLICATION.—The Sec21 retary of Labor shall submit to Congress and publish in 

22 the Federal Register and other appropriate media a notice 

23 of the date that the Internet website required by para24 graph (3) of section 212(n) of such Act, as amended by 

25 subsection (a), will be operational. 


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1 (c) APPLICATION.—The amendments made by sub2 section (a) shall apply to an application filed on or after 

3 the date that is 30 days after the date described in sub4 section (b). 

5 SEC. 552. H–1B GOVERNMENT AUTHORITY AND REQUIRE6 MENTS. 

7 (a) IMMIGRATION DOCUMENTS.—Section 204 of the 

8 Immigration and Nationality Act (8 U.S.C. 1154) is 

9 amended by adding at the end the following: 

10 ‘‘(l) EMPLOYER TO PROVIDE IMMIGRATION PAPER11 WORK EXCHANGED WITH FEDERAL AGENCIES.—Not 

12 later than 21 business days after receiving a written re13 quest from a former, current, or future employee or bene14 ficiary, an employer shall provide such employee or bene15 ficiary with the original (or a certified copy of the original) 

16 of all petitions, notices, and other written communication 

17 exchanged between the employer and the Department of 

18 Labor, the Department of Homeland Security, or any 

19 other Federal agency or department that is related to an 

20 immigrant or nonimmigrant petition filed by the employer 

21 for such employee or beneficiary.’’. 

22 (b) REPORT ON JOB CLASSIFICATION AND WAGE

23 DETERMINATIONS.—Not later than 1 year after the date 

24 of the enactment of this Act, the Comptroller General of 

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1 curacy and effectiveness of the Secretary of Labor’s cur2 rent job classification and wage determination system. The 

3 report shall— 

4 (1) specifically address whether the systems in 

5 place accurately reflect the complexity of current job 

6 types as well as geographic wage differences; and 

7 (2) make recommendations concerning nec8 essary updates and modifications. 

9 SEC. 553. ADDITIONAL DEPARTMENT OF LABOR EMPLOY10 EES. 

11 (a) IN GENERAL.—The Secretary of Labor is author12 ized to hire 200 additional employees to administer, over13 see, investigate, and enforce programs involving non14 immigrant employees described in section 

15 101(a)(15)(H)(i)(B). 

16 (b) AUTHORIZATION OF APPROPRIATIONS.—There 

17 are authorized to be appropriated such sums as may be 

18 necessary to carry out this section. 

19 CHAPTER 2—L–1 NONIMMIGRANTS 

20 SEC. 561. PROHIBITION ON OUTPLACEMENT OF L–1 NON21 IMMIGRANTS. 

22 (a) IN GENERAL.—Subparagraph (F) of section 

23 214(c)(2) of the Immigration and Nationality Act (8 

24 U.S.C. 1184(c)(2)) is amended to read as follows: 


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1 ‘‘(F)(i) Unless an employer receives a 

2 waiver under clause (ii), an employer may not 

3 employ an alien, for a cumulative period of 

4 more than 1 year, who— 

5 ‘‘(I) will serve in a capacity involving 

6 specialized knowledge with respect to an 

7 employer for purposes of section 

8 101(a)(15)(L); and 

9 ‘‘(II) will be stationed primarily at the 

10 worksite of an employer other than the pe11 titioning employer or its affiliate, sub12 sidiary, or parent, including pursuant to 

13 an outsourcing, leasing, or other con14 tracting agreement. 

15 ‘‘(ii) The Secretary of Homeland Security 

16 may grant a waiver of the requirements of 

17 clause (i) for an employer if the Secretary de18 termines that the employer has established 

19 that— 

20 ‘‘(I) the employer with whom the alien 

21 referred to in clause (i) would be placed 

22 has not displaced and does not intend to 

23 displace a United States worker employed 

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1 ning 180 days after the date of the place2 ment of such alien with the employer; 

3 ‘‘(II) such alien will not be controlled 

4 and supervised principally by the employer 

5 with whom the nonimmigrant would be 

6 placed; and 

7 ‘‘(III) the placement of the non8 immigrant is not essentially an arrange9 ment to provide labor for hire for an unaf10 filiated employer with whom the non11 immigrant will be placed, rather than a 

12 placement in connection with the provision 

13 or a product or service for which special14 ized knowledge specific to the petitioning 

15 employer is necessary. 

16 ‘‘(iii) The Secretary shall grant or deny a 

17 waiver under clause (ii) not later than 7 days 

18 after the date that the Secretary receives the 

19 application for the waiver.’’. 

20 (b) REGULATIONS.—The Secretary of Homeland Se21 curity shall promulgate rules, after notice and a period 

22 for comment, for an employer to apply for a waiver under 

23 subparagraph (F)(ii) of section 214(c)(2), as added by 

24 subsection (a). 


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1 SEC. 562. L–1 EMPLOYER PETITION REQUIREMENTS FOR 

2 EMPLOYMENT AT NEW OFFICES. 

3 Section 214(c)(2) of the Immigration and Nationality 

4 Act (8 U.S.C. 1184(c)(2)) is amended by adding at the 

5 end the following: 

6 ‘‘(G)(i) If the beneficiary of a petition 

7 under this paragraph is coming to the United 

8 States to open, or be employed in, a new office, 

9 the petition may be approved for up to 12 

10 months only if— 

11 ‘‘(I) the alien has not been the bene12 ficiary of 2 or more petitions under this 

13 subparagraph during the immediately pre14 ceding 2 years; and 

15 ‘‘(II) the employer operating the new 

16 office has— 

17 ‘‘(aa) an adequate business plan; 

18 ‘‘(bb) sufficient physical premises 

19 to carry out the proposed business ac20 tivities; and 

21 ‘‘(cc) the financial ability to com22 mence doing business immediately 

23 upon the approval of the petition. 

24 ‘‘(ii) An extension of the approval period 

25 under clause (i) may not be granted until the 

26 importing employer submits an application to 


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1 the Secretary of Homeland Security that con2 tains— 

3 ‘‘(I) evidence that the importing em4 ployer meets the requirements of this sub5 section; 

6 ‘‘(II) evidence that the beneficiary of 

7 the petition is eligible for nonimmigrant 

8 status under section 101(a)(15)(L); 

9 ‘‘(III) a statement summarizing the 

10 original petition; 

11 ‘‘(IV) evidence that the importing em12 ployer has fully complied with the business 

13 plan submitted under clause (i)(I); 

14 ‘‘(V) evidence of the truthfulness of 

15 any representations made in connection 

16 with the filing of the original petition; 

17 ‘‘(VI) evidence that the importing em18 ployer, for the entire period beginning on 

19 the date on which the petition was ap20 proved under clause (i), has been doing 

21 business at the new office through regular, 

22 systematic, and continuous provision of 

23 goods and services; 

24 ‘‘(VII) a statement of the duties the 

25 beneficiary has performed at the new office 


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1 during the approval period under clause (i) 

2 and the duties the beneficiary will perform 

3 at the new office during the extension pe4 riod granted under this clause; 

5 ‘‘(VIII) a statement describing the 

6 staffing at the new office, including the 

7 number of employees and the types of posi8 tions held by such employees; 

9 ‘‘(IX) evidence of wages paid to em10 ployees; 

11 ‘‘(X) evidence of the financial status 

12 of the new office; and 

13 ‘‘(XI) any other evidence or data pre14 scribed by the Secretary. 

15 ‘‘(iii) A NEW OFFICE EMPLOYING THE

16 BENEFICIARY OF AN L.—1 petition approved 

17 under this paragraph shall do business only 

18 through regular, systematic, and continuous 

19 provision of goods and services for the entire 

20 period for which the petition is sought. 

21 ‘‘(iv) Notwithstanding clause (ii), and sub22 ject to the maximum period of authorized ad23 mission set forth in subparagraph (D), the Sec24 retary of Homeland Security, in the Secretary’s 

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1 tition on behalf of the beneficiary to continue 

2 employment at the office described in this sub3 paragraph for a period beyond the initially 

4 granted 12-month period if the importing em5 ployer has been doing business at the new office 

6 through regular, systematic, and continuous 

7 provision of goods and services for the 6 

8 months immediately preceding the date of ex9 tension petition filing and demonstrates that 

10 the failure to satisfy any of the requirements 

11 described in those subclauses was directly 

12 caused by extraordinary circumstances, as de13 termined by the Secretary in the Secretary’s 

14 discretion.’’. 

15 SEC. 563. COOPERATION WITH SECRETARY OF STATE. 

16 Section 214(c)(2) of the Immigration and Nationality 

17 Act (8 U.S.C. 1184(c)(2)), as amended by section 202, 

18 is further amended by adding at the end the following: 

19 ‘‘(H) For purposes of approving petitions 

20 under this paragraph, the Secretary of Home21 land Security shall work cooperatively with the 

22 Secretary of State to verify the existence or 

23 continued existence of a company or office in 

24 the United States or in a foreign country.’’. 


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1 SEC. 564. INVESTIGATION AND DISPOSITION OF COM2 PLAINTS AGAINST L–1 EMPLOYERS. 

3 Section 214(c)(2) of the Immigration and Nationality 

4 Act (8 U.S.C. 1184(c)(2)), as amended by sections 202 

5 and 203, is further amended by adding at the end the 

6 following: 

7 ‘‘(I)(i) The Secretary of Homeland Secu8 rity may initiate an investigation of any em9 ployer that employs nonimmigrants described in 

10 section 101(a)(15)(L) with regard to the em11 ployer’s compliance with the requirements of 

12 this subsection. 

13 ‘‘(ii) If the Secretary receives specific cred14 ible information from a source who is likely to 

15 have knowledge of an employer’s practices, em16 ployment conditions, or compliance with the re17 quirements under this subsection, the Secretary 

18 may conduct an investigation into the employ19 er’s compliance with the requirements of this 

20 subsection. The Secretary may withhold the 

21 identity of the source from the employer, and 

22 the source’s identity shall not be subject to dis23 closure under section 552 of title 5, United 

24 States Code. 

25 ‘‘(iii) The Secretary shall establish a proce26 dure for any person desiring to provide to the 


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1 Secretary information described in clause (ii) 

2 that may be used, in whole or in part, as the 

3 basis for the commencement of an investigation 

4 described in such clause, to provide the infor5 mation in writing on a form developed and pro6 vided by the Secretary and completed by or on 

7 behalf of the person. 

8 ‘‘(iv) No investigation described in clause 

9 (ii) (or hearing described in clause (vi) based on 

10 such investigation) may be conducted with re11 spect to information about a failure to comply 

12 with the requirements under this subsection, 

13 unless the Secretary receives the information 

14 not later than 24 months after the date of the 

15 alleged failure. 

16 ‘‘(v) Before commencing an investigation 

17 of an employer under clause (i) or (ii), the Sec18 retary shall provide notice to the employer of 

19 the intent to conduct such investigation. The 

20 notice shall be provided in such a manner, and 

21 shall contain sufficient detail, to permit the em22 ployer to respond to the allegations before an 

23 investigation is commenced. The Secretary is 

24 not required to comply with this clause if the 

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1 fere with an effort by the Secretary to inves2 tigate or secure compliance by the employer 

3 with the requirements of this subsection. There 

4 shall be no judicial review of a determination by 

5 the Secretary under this clause. 

6 ‘‘(vi) If the Secretary, after an investiga7 tion under clause (i) or (ii), determines that a 

8 reasonable basis exists to make a finding that 

9 the employer has failed to comply with the re10 quirements under this subsection, the Secretary 

11 shall provide the interested parties with notice 

12 of such determination and an opportunity for a 

13 hearing in accordance with section 556 of title 

14 5, United States Code, not later than 120 days 

15 after the date of such determination. If such a 

16 hearing is requested, the Secretary shall make 

17 a finding concerning the matter by not later 

18 than 120 days after the date of the hearing. 

19 ‘‘(vii) If the Secretary, after a hearing, 

20 finds a reasonable basis to believe that the em21 ployer has violated the requirements under this 

22 subsection, the Secretary shall impose a penalty 

23 under subparagraph (L). 


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1 ‘‘(viii)(I) The Secretary may conduct sur2 veys of the degree to which employers comply 

3 with the requirements under this section. 

4 ‘‘(II) The Secretary shall— 

5 ‘‘(aa) conduct annual compliance au6 dits of not less than 1 percent of the em7 ployers that employ nonimmigrants de8 scribed in section 101(a)(15)(L) during the 

9 applicable fiscal year; 

10 ‘‘(bb) conduct annual compliance au11 dits of each employer with more than 100 

12 employees who work in the United States 

13 if more than 15 percent of such employees 

14 are nonimmigrants described in 

15 101(a)(15)(L); and 

16 ‘‘(cc) make available to the public an 

17 executive summary or report describing the 

18 general findings of the audits carried out 

19 pursuant to this subclause.’’. 

20 SEC. 565. WAGE RATE AND WORKING CONDITIONS FOR L– 

21 1 NONIMMIGRANT. 

22 (a) IN GENERAL.—Section 214(c)(2) of the Immigra23 tion and Nationality Act (8 U.S.C. 1184(c)(2)), as amend24 ed by section 202, 203, and 204, is further amended by 

25 adding at the end the following: 


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1 ‘‘(J)(i) An employer that employs a nonimmigrant 

2 described in section 101(a)(15)(L) for a cumulative period 

3 of time in excess of 1 year shall— 

4 ‘‘(I) offer such nonimmigrant, during the period 

5 of authorized employment, wages, based on the best 

6 information available at the time the application is 

7 filed, which are not less than the highest of— 

8 ‘‘(aa) the locally determined prevailing 

9 wage level for the occupational classification in 

10 the area of employment; 

11 ‘‘(bb) the median average wage for all 

12 workers in the occupational classification in the 

13 area of employment; and 

14 ‘‘(cc) the median wage for skill level 2 in 

15 the occupational classification found in the 

16 most recent Occupational Employment Statis17 tics survey; and 

18 ‘‘(II) provide working conditions for such non19 immigrant that will not adversely affect the working 

20 conditions of workers similarly employed. 

21 ‘‘(ii) If an employer, in such previous period specified 

22 by the Secretary of Homeland Security, employed 1 or 

23 more such nonimmigrants, the employer shall provide to 

24 the Secretary of Homeland Security the Internal Revenue 

25 Service Form W–2 Wage and Tax Statement filed by the 


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1 employer with respect to such nonimmigrants for such pe2 riod. 

3 ‘‘(iii) It is a failure to meet a condition under this 

4 subparagraph for an employer who has filed a petition to 

5 import 1 or more aliens as nonimmigrants described in 

6 section 101(a)(15)(L)— 

7 ‘‘(I) to require such a nonimmigrant to pay a 

8 penalty for ceasing employment with the employer 

9 before a date mutually agreed to by the non10 immigrant and the employer; or 

11 ‘‘(II) to fail to offer to such a nonimmigrant, 

12 during the nonimmigrant’s period of authorized em13 ployment, on the same basis, and in accordance with 

14 the same criteria, as the employer offers to United 

15 States workers, benefits and eligibility for benefits, 

16 including— 

17 ‘‘(aa) the opportunity to participate in 

18 health, life, disability, and other insurance 

19 plans; 

20 ‘‘(bb) the opportunity to participate in re21 tirement and savings plans; and 

22 ‘‘(cc) cash bonuses and noncash compensa23 tion, such as stock options (whether or not 

24 based on performance). 


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1 ‘‘(iv) The Secretary of Homeland Security shall de2 termine whether a required payment under clause (iii)(I) 

3 is a penalty (and not liquidated damages) pursuant to rel4 evant State law.’’. 

5 (b) REGULATIONS.—The Secretary of Homeland Se6 curity shall promulgate rules, after notice and a period 

7 of comment, to implement the requirements of subpara8 graph (J) of section 214(c)(2) of the Immigration and Na9 tionality Act (8 U.S.C. 1184(c)(2)), as added by sub10 section (a). In promulgating these rules, the Secretary 

11 shall take into consideration any special circumstances re12 lating to intracompany transfers. 

13 SEC. 566. PENALTIES. 

14 Section 214(c)(2) of the Immigration and Nationality 

15 Act (8 U.S.C. 1184(c)(2)), as amended by sections 202, 

16 203, 204, and 205, is further amended by adding at the 

17 end the following: 

18 ‘‘(K)(i) If the Secretary of Homeland Security finds, 

19 after notice and an opportunity for a hearing, a failure 

20 by an employer to meet a condition under subparagraph 

21 (F), (G), (J), or (L) or a misrepresentation of material 

22 fact in a petition to employ 1 or more aliens as non23 immigrants described in section 101(a)(15)(L)— 

24 ‘‘(I) the Secretary shall impose such adminis25 trative remedies (including civil monetary penalties 


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1 in an amount not to exceed $2,000 per violation) as 

2 the Secretary determines to be appropriate; 

3 ‘‘(II) the Secretary may not, during a period of 

4 at least 1 year, approve a petition for that employer 

5 to employ 1 or more aliens as such nonimmigrants; 

6 and 

7 ‘‘(III) in the case of a violation of subparagraph 

8 (J) or (L), the employer shall be liable to the em9 ployees harmed by such violation for lost wages and 

10 benefits. 

11 ‘‘(ii) If the Secretary finds, after notice and an oppor12 tunity for a hearing, a willful failure by an employer to 

13 meet a condition under subparagraph (F), (G), (J), or (L) 

14 or a willful misrepresentation of material fact in a petition 

15 to employ 1 or more aliens as nonimmigrants described 

16 in section 101(a)(15)(L)— 

17 ‘‘(I) the Secretary shall impose such adminis18 trative remedies (including civil monetary penalties 

19 in an amount not to exceed $10,000 per violation) 

20 as the Secretary determines to be appropriate; 

21 ‘‘(II) the Secretary may not, during a period of 

22 at least 2 years, approve a petition filed for that em23 ployer to employ 1 or more aliens as such non24 immigrants; and 


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1 ‘‘(III) in the case of a violation of subparagraph 

2 (J) or (L), the employer shall be liable to the em3 ployees harmed by such violation for lost wages and 

4 benefits.’’. 

5 SEC. 567. PROHIBITION ON RETALIATION AGAINST L–1 

6 NONIMMIGRANTS. 

7 Section 214(c)(2) of the Immigration and Nationality 

8 Act (8 U.S.C. 1184(c)(2)), as amended by section 202, 

9 203, 204, 205, and 206, is further amended by adding 

10 at the end the following: 

11 ‘‘(L)(i) It is a violation of this subparagraph for an 

12 employer who has filed a petition to import 1 or more 

13 aliens as nonimmigrants described in section 

14 101(a)(15)(L) to take, fail to take, or threaten to take 

15 or fail to take, a personnel action, or to intimidate, threat16 en, restrain, coerce, blacklist, discharge, or discriminate 

17 in any other manner against an employee because the em18 ployee— 

19 ‘‘(I) has disclosed information that the em20 ployee reasonably believes evidences a violation of 

21 this subsection, or any rule or regulation pertaining 

22 to this subsection; or 

23 ‘‘(II) cooperates or seeks to cooperate with the 

24 requirements of this subsection, or any rule or regu25 lation pertaining to this subsection. 


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1 ‘‘(ii) In this subparagraph, the term ‘employee’ in2 cludes— 

3 ‘‘(I) a current employee; 

4 ‘‘(II) a former employee; and 

5 ‘‘(III) an applicant for employment.’’. 

6 SEC. 568. TECHNICAL AMENDMENTS. 

7 Section 214(c)(2) of the Immigration and Nationality 

8 Act (8 U.S.C. 1184(c)(2)) is amended by striking ‘‘Attor9 ney General’’ each place it appears and inserting ‘‘Sec10 retary of Homeland Security’’. 

11 SEC. 569. REPORTS ON L–1 NONIMMIGRANTS. 

12 Section 214(c)(8) of the Immigration and Nationality 

13 Act (8 U.S.C. 1184(c)(8)) is amended by inserting ‘‘(L),’’ 

14 after ‘‘(H),’’. 

15 SEC. 570. APPLICATION. 

16 The amendments made by sections 201 through 207 

17 shall apply to applications filed on or after the date of 

18 the enactment of this Act. 

19 SEC. 571. REPORT ON L–1 BLANKET PETITION PROCESS. 

20 (a) REQUIREMENT FOR REPORT.—Not later than 6 

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

22 Inspector General of the Department of Homeland Secu23 rity shall submit to the appropriate committees of Con24 gress a report regarding the use of blanket petitions under 

25 section 214(c)(2)(A) of the Immigration and Nationality 


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1 Act (8 U.S.C. 1184(c)(2)(A)). Such report shall assess the 

2 efficiency and reliability of the process for reviewing such 

3 blanket petitions, including whether the process includes 

4 adequate safeguards against fraud and abuse. 

5 (b) APPROPRIATE COMMITTEES OF CONGRESS.—In 

6 this section the term ‘‘appropriate committees of Con7 gress’’ means— 

8 (1) the Committee on Homeland Security and 

9 Governmental Affairs of the Senate; 

10 (2) the Committee on the Judiciary of the Sen11 ate; 

12 (3) the Committee on Homeland Security of the 

13 House of Representatives; and 

14 (4) the Committee on the Judiciary of the 

15 House of Representatives. 

16 SEC. 572. REQUIREMENTS FOR INFORMATION FOR H–1B 

17 AND L–1 NONIMMIGRANTS. 

18 Section 214 of the Immigration and Nationality Act 

19 (8 U.S.C. 1184) is amended by adding at the end the fol20 lowing: 

21 ‘‘(s) REQUIREMENTS FOR INFORMATION FOR H–1B 

22 AND L–1 NONIMMIGRANTS.— 

23 ‘‘(1) IN GENERAL.—Upon issuing a visa to an 

24 applicant for nonimmigrant status pursuant to sub25 paragraph (H)(i)(b) or (L) of section 101(a)(15) 


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1 who is outside the United States, the issuing office 

2 shall provide the applicant with— 

3 ‘‘(A) a brochure outlining the obligations 

4 of the applicant’s employer and the rights of 

5 the applicant with regard to employment under 

6 Federal law, including labor and wage protec7 tions; 

8 ‘‘(B) the contact information for appro9 priate Federal agencies or departments that 

10 offer additional information or assistance in 

11 clarifying such obligations and rights; and 

12 ‘‘(C) a copy of the application submitted 

13 for the nonimmigrant under section 212(n) or 

14 the petition submitted for the nonimmigrant 

15 under subsection (c)(2)(A), as appropriate. 

16 ‘‘(2) Upon the issuance of a visa to an appli17 cant referred to in paragraph (1) who is inside the 

18 United States, the issuing officer of the Department 

19 of Homeland Security shall provide the applicant 

20 with the material described in clauses (i), (ii), and 

21 (iii) of subparagraph (A).’’. 


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1 CHAPTER 3—PROTECTION OF H–2B 

2 NONIMMIGRANTS 

3 SEC. 581. ENFORCEMENT OF FEDERAL LABOR LAWS RE4 LATING TO H–2B NONAGRICULTURAL GUEST 

5 WORKERS. 

6 (a) IN GENERAL.—Section 214(c)(14) of the Immi7 gration and Nationality Act (8 U.S.C. 1184(c)(14)) is 

8 amended— 

9 (1) in subparagraph (A), by striking ‘‘of Home10 land Security’’ each place it appears and inserting 

11 ‘‘of Labor’’; 

12 (2) by striking subparagraph (B); 

13 (3) by redesignating subparagraphs (C) and 

14 (D) as subparagraphs (B) and (C), respectively; and 

15 (4) by adding at the end the following: 

16 ‘‘(D) The Secretary of Labor is authorized 

17 to take such actions, including imposing appro18 priate penalties and seeking appropriate injunc19 tive relief and specific performance of contrac20 tual obligations, as may be necessary to assure 

21 employer compliance with the terms and condi22 tions required under this Act for employing 

23 nonimmigrant workers described in section 

24 101(a)(15)(H)(ii)(b), and as required under the 

25 Increasing American Wages and Benefits Act of 


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1 2007. The authority of the Secretary of Labor 

2 under this subparagraph shall not preempt any 

3 other rights which affected persons may have 

4 under Federal or State law. 

5 ‘‘(E) Any aggrieved person whose wages or 

6 working conditions have been directly and ad7 versely affected by an employer in violation of 

8 applicable laws and regulations governing the 

9 employment of nonimmigrant workers described 

10 in section 101(a)(15)(H)(ii)(b), or by a viola11 tion of the terms and conditions of employment, 

12 may bring a civil action against such employer 

13 in the appropriate district court of the United 

14 States. Such cause of action shall not be subject 

15 to exhaustion of administrative remedies and 

16 shall be in addition to any other causes of ac17 tion and remedies that may exist. 

18 ‘‘(F) Notwithstanding any other provision 

19 of law, the Legal Services Corporation may pro20 vide legal services on behalf of nonimmigrant 

21 workers described in section 

22 101(a)(15)(H)(ii)(b) regarding the terms and 

23 conditions of employment, transportation, and 

24 housing and other provisions of law applicable 

25 to the employment of such nonimmigrants.’’. 


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1 (b) REPORT.—Section 214(g)(10) of the Immigration 

2 and Nationality Act (8 U.S.C. 1184(g)(10)) is amended— 

3 (1) by inserting ‘‘(A)’’ after ‘‘(10)’’; and 

4 (2) by adding at the end the following: 

5 ‘‘(B) Each employer that hires a non6 immigrant worker described in section 

7 101(a)(15)(H)(ii)(b) shall— 

8 ‘‘(i) notify the Secretary of Labor not 

9 later than 30 days after the conclusion of 

10 each such nonimmigrant’s term of employ11 ment; and 

12 ‘‘(ii) submit to the Secretary of Labor 

13 employment payroll records and similar 

14 documentation showing that the employer 

15 paid the required prevailing wage and 

16 transportation, and other expenses re17 quired under this section and section 

18 212.’’. 

19 SEC. 582. RECRUITMENT OF UNITED STATES WORKERS. 

20 Section 212 of the Immigration and Nationality Act 

21 (8 U.S.C. 1182) is amended— 

22 (1) in subsection (p)(3), by striking ‘‘(a)(5)(A), 

23 (n)(1)(A)(i)(II),’’ and inserting ‘‘(n)(1)(A)(i)(II)’’; 


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1 (2) by redesignating subsection (t) (as added by 

2 section 1(b)(2)(B) of Public Law 108-449) as sub3 section (u); and 

4 (3) by adding at the end the following: 

5 ‘‘(v)(1) Except as provided under paragraph (5), an 

6 employer that seeks to employ an alien described in section 

7 101(a)(15)(H)(ii)(b) (referred to in this subsection as an 

8 ‘H-2B nonimmigrant’) shall take the following steps to re9 cruit United States workers for the position for which the 

10 alien is sought not later than 14 days before filing an ap11 plication under paragraph (3): 

12 ‘‘(A) The employer shall submit a copy of the 

13 job offer, including a description of the wages and 

14 other terms and conditions of employment, to the 

15 State Workforce Agency that serves the area of em16 ployment in the State in which the employer is lo17 cated (referred to in this subsection as the ‘SWA’). 

18 The SWA shall provide the employer with an ac19 knowledgment of receipt of such documentation in 

20 accordance with this paragraph. 

21 ‘‘(B) The employer shall authorize the SWA to 

22 post the job opportunity on the Internet through the 

23 web site for ‘America’s Job Bank’, with local job 

24 banks, and with unemployment agencies and other 


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1 labor referral and recruitment sources pertinent to 

2 such job opportunity. 

3 ‘‘(C) The employer shall authorize the SWA to 

4 provide notification of the job opportunity, and the 

5 SWA shall designate that these are job opportunities 

6 for which H-2B visas have been requested, to— 

7 ‘‘(i) the central office of the State Federa8 tion of Labor in the State in which the job is 

9 located; and 

10 ‘‘(ii) the office of the local union which 

11 represents the employees in the same or sub12 stantially equivalent job classification, if appli13 cable. 

14 ‘‘(D) The employer shall post the availability of 

15 the job opportunity for which the employer is seek16 ing a worker in conspicuous locations at the place of 

17 employment for all employees to see. 

18 ‘‘(E) The employer shall advertise the avail19 ability of the job opportunity for which the employer 

20 is seeking a worker in a publication with the highest 

21 circulation in the labor market that is likely to be 

22 patronized by a potential worker for at least 5 con23 secutive days. 

24 ‘‘(F) Based on recommendations by the local 

25 job service, the employer shall advertise the availVerDate Nov 24 2008 00:39 Dec 17, 2009 Jkt 089200 PO 00000 Frm 00567 Fmt 6652 Sfmt 6201 E:\BILLS\H4321.IH H4321

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1 ability of the job opportunity in professional, trade, 

2 or local minority and ethnic publications that are 

3 likely to be patronized by a potential worker. 

4 ‘‘(2) An employer that seeks to employ an H-2B non5 immigrant shall— 

6 ‘‘(A) first offer the job to any eligible United 

7 States worker who— 

8 ‘‘(i) applies; 

9 ‘‘(ii) is qualified for the job; and 

10 ‘‘(iii) is available at the time of need; and 

11 ‘‘(B) maintain, for at least 3 years after the 

12 employment relation is terminated, documentation of 

13 recruitment efforts and responses conducted and re14 ceived before filing an application with the Depart15 ment of Labor, including— 

16 ‘‘(i) resumes; 

17 ‘‘(ii) applications; and 

18 ‘‘(iii) tests of United States workers who 

19 applied and were not hired for the job the em20 ployer seeks to fill with a nonimmigrant worker, 

21 if applicable. 

22 ‘‘(3) An employer that seeks to hire an H-2B non23 immigrant shall submit an application to the Secretary of 

24 Labor that includes a certification, under penalty of per25 jury, that— 


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1 ‘‘(A) the employer has not made a job offer to 

2 a United States worker, which imposed restrictions 

3 or obligations that will not be imposed on an H-2B 

4 nonimmigrant; 

5 ‘‘(B) the employer has complied with the re6 cruitment requirements under paragraph (1); 

7 ‘‘(C) the employer will offer an H-2B non8 immigrant not less than the same benefits and work9 ing conditions provided to United States workers 

10 similarly employed in the same occupational classi11 fication at the same actual place of employment in 

12 addition to paying an H-2B nonimmigrant a pre13 vailing wage rate not less than the wage rate offered 

14 to United States workers; 

15 ‘‘(D) there is currently no strike, lockout, or 

16 labor dispute (as defined in section 2(9) of the 

17 Labor-Management Relations Act (29 U.S.C. 

18 152(9)), at the same place of employment, which af19 fects employees in the same occupational classifica20 tion in which an H-2B nonimmigrant will be em21 ployed; 

22 ‘‘(E) the employer will comply with all applica23 ble laws and regulations relating to the right of 

24 workers to join or organize a union (including rights 


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1 protected under section 7 of the Labor-Management 

2 Relations Act (29 U.S.C. 157)); 

3 ‘‘(F) the employer has— 

4 ‘‘(i) provided notice of the filing of an ap5 plication to the bargaining representative of em6 ployees, if any, working in the same occupa7 tional classification at the place of employment 

8 as an H-2B nonimmigrant who the employer in9 tends to employ; or 

10 ‘‘(ii) if there is no such bargaining rep11 resentative, posted notice of filing such applica12 tion in conspicuous locations at the place of em13 ployment for all employees to see for not fewer 

14 than 14 business days; and 

15 ‘‘(G) the requirements applicable to the job, 

16 which the employer intends to hire an H-2B non17 immigrant to perform, represent the actual min18 imum requirements applicable to that job and the 

19 employer will not hire an H-2B nonimmigrant to 

20 perform the job who has less training or experience 

21 than the employer’s other employees. 

22 ‘‘(4)(A) An employer that applies to hire an H-2B 

23 nonimmigrant shall hire any qualified United States work24 er who applies for the job for which such nonimmigrant 

25 was intended to be employed if such United States worker 


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1 applies before the date that is 30 days before the date 

2 on which the last such H-2B nonimmigrant is scheduled 

3 to begin work for such employer. 

4 ‘‘(B) The Secretary of Labor, through the workforce 

5 agency of a State, as appropriate, shall provide informa6 tion about applications for H-2B nonimmigrants, includ7 ing information about domestic workers who apply for jobs 

8 but are not hired, to a United States worker, nonprofit 

9 organization, or union not later than 48 hours after such 

10 worker, organization, or union requests such informa11 tion.’’. 

12 SEC. 583. PREVAILING WAGES FOR UNITED STATES WORK13 ERS AND H–2B WORKERS. 

14 Section 212 of the Immigration and Nationality Act 

15 (8 U.S.C. 1182), as amended by section 102, is further 

16 amended by adding at the end the following: 

17 ‘‘(w)(1) No alien may be admitted or provided status 

18 as a nonimmigrant under section 101(a)(15)(H)(ii)(b) in 

19 an occupational classification unless the Secretary of 

20 Labor certifies that the employer— 

21 ‘‘(A) is offering and will offer during the period 

22 of authorized employment to aliens admitted or pro23 vided such status the wage rate set forth in the col24 lective bargaining agreement, if the job opportunity 

25 is covered by a collective bargaining agreement; 


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1 ‘‘(B) if the job opportunity is not covered by a 

2 collective bargaining agreement, the wage the em3 ployer is offering and will offer, to any alien or 

4 United States worker employed by or offered em5 ployment by the employer, during the period of au6 thorized employment for aliens admitted or provided 

7 such status, wages that are not less than the higher 

8 of— 

9 ‘‘(i) the wage determination, if any, issued 

10 pursuant to subchapter IV of chapter 31 of title 

11 40, United States Code (commonly known as 

12 the ‘Davis-Bacon Act’); 

13 ‘‘(ii) the wage determination, if any, issued 

14 pursuant to the Service Contract Act of 1965 

15 (41 U.S.C. 351 et seq.); 

16 ‘‘(iii) the median rate of the highest 66 

17 percent of the wage data applicable to such oc18 cupational classification under the most recently 

19 published Occupational Employment Statistics 

20 Survey, compiled by the Bureau of Labor Sta21 tistics; or 

22 ‘‘(iv) a wage that is not less than 150 per23 cent of the Federal minimum wage in effect 

24 under the Fair Labor Standards Act (29 U.S.C. 

25 201 et seq.); and 


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1 ‘‘(C) will provide working conditions for such 

2 alien that will not adversely affect the working con3 ditions of workers similarly employed. 

4 ‘‘(2) An employer may not appeal a decision of the 

5 Secretary of Labor concerning the wages required to be 

6 paid under paragraph (1)(A) unless United States workers 

7 and their labor representatives are given the opportunity 

8 to submit contrary evidence or appeal that such required 

9 wages are too low. 

10 ‘‘(3) An employer may not hire a nonimmigrant de11 scribed in section 101(a)(15)(H)(ii)(b) unless— 

12 ‘‘(A) real prevailing wages in the occupational 

13 classification in which such nonimmigrant is to be 

14 hired are at least 3 percent higher than such wages 

15 during the preceding year under the Occupational 

16 Employment Statistics Survey compiled by the Bu17 reau of Labor Statistics; or 

18 ‘‘(B) the employer offers to pay the H-2B 

19 worker or a United States worker a wage in the oc20 cupational classification in which such worker is to 

21 be hired that is at least 3 percent higher during the 

22 preceding year, after adjusting for inflation under 

23 the Occupational Employment Survey.’’. 


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1 SEC. 584. CERTIFICATION REQUIREMENT. 

2 Section 214(c)(14) of the Immigration and Nation3 ality Act, as amended by section 101, is further amended 

4 by adding at the end the following: 

5 ‘‘(G) A petition by an employer seeking to hire an 

6 alien described in section 101(a)(15)(H)(ii)(b) shall not 

7 be approved until the employer has provided written cer8 tification, under penalty of perjury, to the Secretary of 

9 Labor that— 

10 ‘‘(i) the employer has not been required under 

11 law to provide a notice of a mass layoff pursuant to 

12 the Worker Adjustment and Retraining Notification 

13 Act (29 U.S.C. 2101 et seq.) during the 12-month 

14 period immediately preceding the date on which the 

15 alien is to be hired; and 

16 ‘‘(ii) the employer does not intend to provide a 

17 notice of a mass layoff pursuant to such Act. 

18 ‘‘(H) If an employer is required under law to provide 

19 a notice of a mass layoff pursuant to such Act after hiring 

20 nonimmigrants granted status under section 

21 101(a)(15)(H)(ii)(b), the status of such nonimmigrants 

22 shall expire on the date that is 60 days after the date 

23 on which such notice is provided. 

24 ‘‘(I) An employer shall be exempt from the require25 ments under subparagraphs (G) and (H) if the employer 

26 provides written certification, under penalty of perjury, 


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1 that the total number of the employer’s employees in the 

2 United States will not be reduced as a result of a mass 

3 layoff.’’. 

4 SEC. 585. PROTECTIONS FOR WORKERS. 

5 Section 214(c)(14) of the Immigration and Nation6 ality Act, as amended by section 104, is further amended 

7 by adding at the end the following: 

8 ‘‘(J) Employers who hire nonimmigrants 

9 described in section 101(a)(15)(H)(ii)(b) shall 

10 reimburse the nonimmigrants for the reasonable 

11 transportation costs incurred by such non12 immigrants and United States workers to ini13 tially reach the job site and, once the period of 

14 employment for the job opportunity is com15 pleted, to return to their countries of origin or 

16 to the next place of employment, if the worker 

17 has contracted with a subsequent employer who 

18 has not agreed to provide or pay for the work19 er’s transportation to such subsequent employ20 er’s place of employment. The amount of reim21 bursement for such transportation expenses 

22 shall not exceed the lesser of— 

23 ‘‘(i) the actual cost to the worker or 

24 alien of the transportation and subsistence 

25 involved; or 


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1 ‘‘(ii) the most economical and reason2 able common carrier transportation 

3 charges and subsistence costs for the dis4 tance involved. 

5 ‘‘(K)(i) Employers who hire non6 immigrants described in section 

7 101(a)(15)(H)(ii)(b) shall guarantee to offer 

8 the worker employment for at least 75 percent 

9 of the workdays of the total periods during 

10 which the work contract and all extensions of 

11 such contract are in effect, beginning with the 

12 first workday after the arrival of the worker at 

13 the place of employment and ending on the ex14 piration date specified in the work contract or 

15 in its extensions, if any. 

16 ‘‘(ii) If the employer affords a worker dur17 ing the total work contract period less employ18 ment than that required under this subpara19 graph, the employer shall pay the worker the 

20 amount which the worker would have earned 

21 had the worker worked for the guaranteed num22 ber of days. 

23 ‘‘(iii) In this subparagraph, the term 

24 ‘workday’— 


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1 ‘‘(I) means a day in which the worker 

2 is offered the number of hours stated in 

3 the job order; and 

4 ‘‘(II) excludes the worker’s Sabbath 

5 and Federal holidays. 

6 ‘‘(iv) A work guarantee does not meet the 

7 requirements under this subparagraph unless 

8 the number of hours of work offered by the em9 ployer is equal to not less than the product of— 

10 ‘‘(I) 75 percent of the workdays; mul11 tiplied by 

12 ‘‘(II) the average number of hours per 

13 day stated in the job order. 

14 ‘‘(v) A worker may be offered more than 

15 the specified hours of work on a single workday. 

16 ‘‘(vi) The employer may not require, for 

17 purposes of meeting the work guarantee, that 

18 the worker work longer than the number of 

19 hours specified in the job order on a workday, 

20 the worker’s Sabbath, or a Federal holiday. 

21 ‘‘(L) If the job opportunity is not covered 

22 by the State workers’ compensation law, the 

23 employer will provide, at no cost to the worker, 

24 insurance covering injury and disease arising 

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1 ployment which will provide benefits at least 

2 equal to those provided under the State’s work3 ers’ compensation law for comparable employ4 ment.’’. 

5 SEC. 586. PETITIONS BY EMPLOYERS THAT HAVE SIGNED 

6 LABOR AGREEMENTS WITH UNIONS THAT OP7 ERATE HIRING HALLS. 

8 Section 212(v) of the Immigration and Nationality 

9 Act, as added by section 102, is amended by adding at 

10 the end the following: 

11 ‘‘(5) An employer that seeks to hire an H-2B 

12 nonimmigrant may file an application with the Sec13 retary of Labor in accordance with this paragraph, 

14 instead of complying with paragraphs (1) through 

15 (4), if— 

16 ‘‘(A) the employer has signed a labor 

17 agreement with a labor organization (as defined 

18 in section 2(5) of the Labor-Management Rela19 tions Act (29 U.S.C. 152(5)) under which the 

20 labor organization is responsible for referring 

21 applicants for employment to the employer 

22 under a procedure commonly known as a ‘hiring 

23 hall’ or ‘referral hall’; and 


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1 ‘‘(B) the application is accompanied by a 

2 written statement prepared by the labor organi3 zation attesting that— 

4 ‘‘(i) the labor organization operates a 

5 hiring hall that, pursuant to contractual 

6 agreement and actual practice, is a source 

7 of employees in the same or substantially 

8 equivalent occupational classification in 

9 which the employer seeks to employ an H10 2B nonimmigrant; 

11 ‘‘(ii) the labor organization does not 

12 have a sufficient number of qualified appli13 cants available for referral in the same or 

14 substantially equivalent occupational classi15 fication in which the employer seeks to em16 ploy an H-2B nonimmigrant; 

17 ‘‘(iii) the labor organization has ad18 vertised, for at least 5 consecutive days, 

19 the availability of the job opportunity for 

20 which the employer is seeking to employ an 

21 H-2B nonimmigrant in the publication 

22 with the highest circulation in the labor 

23 market that is likely to be patronized by 

24 potential applicants; 


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1 ‘‘(iv) the employer is contractually ob2 ligated to pay all employees, in the same or 

3 substantially equivalent occupational classi4 fication in which the employer seeks to em5 ploy an H-2B nonimmigrant, wages and 

6 benefits set forth in a labor agreement 

7 with the labor organization, which equals 

8 or exceeds the prevailing wage rate the em9 ployer would be obligated to pay; and 

10 ‘‘(v) the H-2B nonimmigrants who 

11 the employer seeks to employ will be paid 

12 not less than the same wages and benefits 

13 and be subject to the same terms and con14 ditions of employment set forth in the em15 ployer’s labor agreement with the labor or16 ganization.’’. 

17 SEC. 587. H–2B NONIMMIGRANT LABOR CERTIFICATION AP18 PLICATION FEES. 

19 (a) ESTABLISHMENT OF FEES.—Section 

20 212(a)(5)(A) of the Immigration and Nationality Act (8 

21 U.S.C. 1182(a)(5)(A)) is amended by adding the fol22 lowing: 

23 ‘‘(v) ESTABLISHMENT OF H-2B EM24 PLOYMENT CERTIFICATION APPLICATION

25 FEE.— 


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1 ‘‘(I) IN GENERAL.—The Sec2 retary of Labor shall impose a fee on 

3 an employer that submits an applica4 tion for an employment certification 

5 for aliens granted nonimmigrant sta6 tus under section 101(a)(15)(H)(ii)(b) 

7 to the Secretary of Labor under this 

8 subparagraph on or after the date 

9 that is 30 days after the date of en10 actment of the Increasing American 

11 Wages and Benefits Act of 2007. 

12 ‘‘(II) FEE DURING INITIAL

13 YEAR.—During the period beginning 

14 30 days after the date of enactment of 

15 the Increasing American Wages and 

16 Benefits Act of 2007 and ending 1 

17 year after such date, the fee imposed 

18 under subclause (I) shall be $800 for 

19 each application. 

20 ‘‘(III) FEE AFTER INITIAL

21 YEAR.—After the date that is one 

22 year after the date of enactment of 

23 the Increasing American Wages and 

24 Benefits Act of 2007, the fee imposed 

25 under subclause (I) shall be set at a 


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1 level the Secretary of Labor deter2 mines will ensure recovery of the full 

3 costs of carrying out labor certifi4 cation activities under this subpara5 graph and will recover any additional 

6 costs associated with the administra7 tion of the fees collected. 

8 ‘‘(IV) PROHIBITION ON EM9 PLOYER ACCEPTING REIMBURSEMENT

10 OF FEE.— 

11 ‘‘(aa) IN GENERAL.—An em12 ployer subject to a fee under this 

13 clause shall not require or accept 

14 reimbursement, directly or indi15 rectly, of or other compensation 

16 for all or part of the cost of such 

17 fee. 

18 ‘‘(bb) CIVIL PENALTY.—If 

19 the Secretary of Labor deter20 mines, after notice and oppor21 tunity for a hearing, that a viola22 tion of item (aa) has occurred, 

23 the Secretary of Labor may im24 pose a civil penalty in an amount 


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1 not to exceed $5,000 per viola2 tion. 

3 ‘‘(V) DEPOSIT OF FEES AND

4 PENALTIES.—Fees and civil penalties 

5 collected under this clause shall be de6 posited in the ‘H-2B Employment 

7 Certification Application Fee Account’ 

8 established under section 286(x).’’. 

9 (b) ESTABLISHMENT OF ACCOUNT AND USE OF

10 FUND.—Section 286 of the Immigration and Nationality 

11 Act (8 U.S.C. 1356) is amended by adding at the end the 

12 following: 

13 ‘‘(x) H-2B EMPLOYMENT CERTIFICATION APPLICA14 TION FEE ACCOUNT.— 

15 ‘‘(1) ESTABLISHMENT OF ACCOUNT.—There is 

16 established in the general fund of the Treasury a 

17 separate account, which shall be known as the ‘H18 2B Employment Certification Application Fee Ac19 count’. Notwithstanding any other provision of this 

20 title, there shall be deposited as offsetting receipts 

21 into the account all amounts from the fees and civil 

22 penalties collected under section 212(a)(5)(A)(v). 

23 ‘‘(2) USE OF FEES.—Of the amounts deposited 

24 into the H-2B Employment Certification Application 

25 Fee Account under this subsection in each fiscal 


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1 year, the Secretary of Labor shall use such amounts 

2 as the Secretary of Labor determines are necessary 

3 for the costs of Federal administration, including 

4 personnel, in carrying out labor certification activi5 ties under section 212(a)(5)(A), and to assist the 

6 States, as appropriate, in the determination of pre7 vailing wages for purposes of carrying out such sec8 tion. 

9 ‘‘(3) AVAILABILITY OF FUNDS.—The fees de10 posited into the H-2B Employment Certification Ap11 plication Fee Account under this subsection shall re12 main available until expended for the activities de13 scribed in paragraph (2).’’. 

14 (c) PROGRAM INTEGRITY.—Section 212(a)(5)(A) of 

15 the Immigration and Nationality Act (8 U.S.C. 

16 1182(a)(5)(A)), as amended by subsection (a), is further 

17 amended by adding at the end the following: 

18 ‘‘(vi) PROGRAM INTEGRITY REGULA19 TIONS.—The Secretary of Labor may pre20 scribe such regulations as may be nec21 essary to ensure the integrity of the labor 

22 certification process carried out under this 

23 subparagraph. Such regulations may in24 clude standards and procedures under 

25 which employers and their representatives 


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1 are excluded from participation in the 

2 labor certification process under this sub3 paragraph.’’. 

4 CHAPTER 4—ADJUSTMENTS TO THE EB–5 

5 VISA PROGRAM 

6 SEC. 591. PERMANENT REAUTHORIZATION OF EB–5 RE7 GIONAL CENTER PROGRAM; APPLICATION 

8 FEE. 

9 (a) IN GENERAL.—Section 610 of the Departments 

10 of Commerce, Justice, and State, the Judiciary, and Re11 lated Agencies Appropriations Act, 1993 (8 U.S.C. 1153 

12 note) is amended— 

13 (1) by striking ‘‘pilot’’ each place it appears; 

14 (2) in subsection (b), by striking ‘‘for 15 

15 years’’; and 

16 (3) by adding at the end the following: 

17 ‘‘(e) In addition to any other fees authorized by law, 

18 the Secretary of Homeland Security shall impose a fee of 

19 $2,500 to apply for designation as a regional center under 

20 this section. Fees collected under this subsection shall be 

21 deposited in the Treasury in accordance with section 

22 286(y) of the Immigration and Nationality Act (8 U.S.C. 

23 1356(y)).’’. 

24 (b) ESTABLISHMENT OF ACCOUNT; USE OF FEES.— 

25 Section 286 of the Immigration and Nationality Act (8 


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1 U.S.C. 1356) is amended by adding at the end the fol2 lowing: 

3 ‘‘(y) IMMIGRANT ENTREPRENEUR REGIONAL CEN4 TER ACCOUNT.— 

5 ‘‘(1) IN GENERAL.—There is established in the 

6 general fund of the Treasury a separate account, 

7 which shall be known as the ‘Immigrant Entre8 preneur Regional Center Account’. Notwithstanding 

9 any other provision of law, there shall be deposited 

10 as offsetting receipts into the account all fees col11 lected under section 610(b) of the Departments of 

12 Commerce, Justice, and State, the Judiciary, and 

13 Related Agencies Appropriations Act, 1993 (8 

14 U.S.C. 1153 note) and any fees collected in connec15 tion with forms I-526 or I-829. 

16 ‘‘(2) USE OF FEES.—Fees collected under this 

17 section may only be used by the Secretary of Home18 land Security to administer and operate the employ19 ment creation program described in section 

20 203(b)(5).’’. 

21 (c) RULEMAKING.—Not later than 120 days after the 

22 date of the enactment of this Act, the Secretary of Home23 land Security shall prescribe regulations to implement the 

24 amendments made by this section. 


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1 (d) EFFECTIVE DATE.—The amendments made by 

2 subsections (a)(3) and (b) shall take effect on the effective 

3 date of the regulations prescribed pursuant to subsection 

4 (c). The remaining amendments made by this section shall 

5 take effect on the date of the enactment of this Act. 

6 SEC. 592. PREMIUM PROCESSING FEE FOR EB–5 IMMI7 GRANT INVESTORS. 

8 Section 286(u) of the Immigration and Nationality 

9 Act (8 U.S.C. 1356(u)) is amended by adding at the end 

10 the following: ‘‘In the case of a petition filed under section 

11 204(a)(1)(H) for classification under section 203(b)(5), if 

12 the petitioner desires a guarantee of a decision on the peti13 tion in 60 days or less, the premium fee under this sub14 section shall be set at $2,500 and shall be deposited as 

15 offsetting receipts in the Immigrant Entrepreneur Re16 gional Center Account established under subsection (y).’’. 

17 SEC. 593. CONCURRENT FILING OF EB–5 PETITIONS AND 

18 APPLICATIONS FOR ADJUSTMENT OF STA19 TUS. 

20 Section 245 of the Immigration and Nationality Act 

21 (8 U.S.C. 1255) is amended by adding at the end the fol22 lowing: 

23 ‘‘(n) If, at the time a petition is filed for classification 

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1 able to the alien beneficiary, the alien beneficiary’s adjust2 ment application under this section shall be considered to 

3 be properly filed whether the application is submitted con4 currently with, or subsequent to, the visa petition.’’. 

5 SEC. 594. IMPROVED SET-ASIDE FOR TARGETED EMPLOY6 MENT AREAS. 

7 Section 203(b)(5)(B) of the Immigration and Nation8 ality Act (8 U.S.C. 1153(b)(5)(B)) is amended as follows: 

9 (1) TARGETED EMPLOYMENT AREA DEFINED.— 

10 Clause (ii) is amended to read as follows: 

11 ‘‘(ii) TARGETED EMPLOYMENT AREA

12 DEFINED.—In this paragraph, the term 

13 ‘targeted employment area’ means, at the 

14 time a petition for classification under this 

15 paragraph is filed, any of the following: 

16 ‘‘(I) A rural area. 

17 ‘‘(II) An area that has experi18 enced high unemployment (of at least 

19 150 percent of the national average 

20 rate). 

21 ‘‘(III) A county that has had a 

22 20 percent or more decrease in popu23 lation since 1970. 

24 ‘‘(IV) An area that is within the 

25 boundaries established for purposes of 


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1 a State or Federal economic develop2 ment incentive program, including 

3 areas defined as Enterprise Zones, 

4 Renewal Communities and Empower5 ment Zones. 

6 ‘‘(V) An area designated by a 

7 State agency to which the Governor 

8 has delegated the authority to des9 ignate targeted employment areas 

10 within the State.’’. 

11 (2) RURAL AREA DEFINED.—Clause (iii) is 

12 amended by striking ‘‘other than an area within a 

13 metropolitan statistical area or’’. 

14 (3) EFFECT OF PRIOR DETERMINATION.—Such 

15 section is amended by adding at the end the fol16 lowing: 

17 ‘‘(iv) EFFECT OF PRIOR DETERMINA18 TION.—In a case in which a geographic 

19 area is determined under clause (ii) to be 

20 a targeted employment area, such deter21 mination shall remain in effect during the 

22 2-year period beginning on the date of the 

23 determination for purposes of any alien 

24 seeking a visa reserved under this subpara25 graph.’’. 


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1 SEC. 595. SET-ASIDE OF VISAS FOR REGIONAL CENTER 

2 PROGRAM. 

3 Section 610(b) of the Departments of Commerce, 

4 Justice, and State, the Judiciary, and Related Agencies 

5 Appropriations Act, 1993 (8 U.S.C. 1153 note) is amend6 ed by striking ‘‘3,000’’ and inserting ‘‘10,000’’. 

7 SEC. 596. EXTENSION. 

8 Subparagraph (A) of section 216A(d)(2) of the Immi9 gration and Nationality Act (8 U.S.C. 1186b(d)(2)(A)) is 

10 amended by adding at the end the following: ‘‘A date spec11 ified by the applicant (but not later than the fourth anni12 versary) shall be substituted for the second anniversary 

13 in applying the preceding sentence if the applicant dem14 onstrates that the applicant has attempted to follow his 

15 business model in good faith, provides an explanation for 

16 the delay in filing the petition that is based on cir17 cumstances outside of the applicant’s control, and dem18 onstrates that such circumstances will be able to be re19 solved within the specified period.’’. 

20 SEC. 597. STUDY. 

21 (a) IN GENERAL.—The Secretary of the Department 

22 of Homeland Security, in appropriate consultation with 

23 the Secretary of Commerce and other interested parties, 

24 shall conduct a study concerning the following: 

25 (1) Current job creation counting methodology 

26 and initial projections under section 203(b)(5) of the 


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1 Immigration and Nationality Act (8 U.S.C. 

2 1153(b)(5)). 

3 (2) How best to promote the employment cre4 ation program described in such section overseas to 

5 potential immigrant investors. 

6 (b) REPORT.—The Secretary of Homeland Security 

7 shall submit a report to the Congress not later than 1 

8 year after the date of the enactment of this Act containing 

9 the results of the study conducted under subsection (a). 

10 SEC. 598. FULL-TIME EQUIVALENTS. 

11 (a) IN GENERAL.—Section 203(b)(5)(A)(ii) of the 

12 Immigration and Nationality Act (8 U.S.C. 

13 1153(b)(5)(A)(ii)) is amended by inserting ‘‘(or full-time 

14 equivalent)’’ after ‘‘full-time’’. 

15 (b) DEFINITION.—Section 203(b)(5)(D) of such Act 

16 (8 U.S.C. 1153(b)(5)(D)) is amended to read as follows: 

17 ‘‘(D) EMPLOYMENT-RELATED DEFINI18 TIONS.— 

19 ‘‘(i) FULL-TIME EMPLOYMENT DE20 FINED.—In this paragraph, the term ‘full21 time employment’ means employment in a 

22 position that requires at least 35 hours of 

23 service per week at any time, regardless of 

24 who fills the position. 


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1 ‘‘(ii) FULL-TIME EQUIVALENT EM2 PLOYMENT DEFINED.—In this paragraph, 

3 the term ‘full-time equivalent employment’ 

4 means employment representing the num5 ber of full-time employees that could have 

6 been employed if the reported number of 

7 hours worked by part-time employees had 

8 been worked by full-time employees. This 

9 shall be calculated by dividing the part10 time hours paid by the standard number of 

11 hours for full-time employees.’’. 

12 SEC. 599. ELIGIBILITY FOR ADJUSTMENT OF STATUS. 

13 Section 245(k) of the Immigration and Nationality 

14 Act (8 U.S.C. 1255(k)) is amended, in the matter pre15 ceding paragraph (1), by striking ‘‘(1), (2), or (3)’’ and 

16 inserting ‘‘(1), (2), (3), or (5)’’. 

17 SEC. 599A. EXPANSION OF EB–5 ELIGIBILITY TO INCLUDE 

18 QUALIFIED IMMIGRANTS WHO COMPLETE IN19 VESTMENT AGREEMENTS. 

20 (a) CHANGES TO INVESTMENT CRITERIA.—Section 

21 203(b)(5)(A) of the Immigration and Nationality Act (8 

22 U.S.C. 1153(b)(5)(A)) is amended— 

23 (1) in the matter preceding clause (i), by strik24 ing ‘‘partnership)—’’ and inserting ‘‘partnership) as 

25 follows:’’ 


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1 (2) in clause (i)— 

2 (A) by striking ‘‘(i) in which’’ and insert3 ing the following: 

4 ‘‘(i) A new commercial enterprise— 

5 ‘‘(I) in which’’; 

6 (B) by striking ‘‘, and’’ at the end and in7 serting a semicolon; and 

8 (C) by adding at the end the following: 

9 ‘‘(II) with respect to which such 

10 alien has completed an investment 

11 agreement with a qualified venture 

12 capital operating company for an in13 vestment in the enterprise of an 

14 amount not less than the amount 

15 specified in subparagraph (C); or 

16 ‘‘(III) with respect to which such 

17 alien has completed an investment 

18 agreement with 1 or more angel inves19 tors for an investment in the enter20 prise of an amount not less than the 

21 amount specified in subparagraph 

22 (C).’’; and 

23 (3) in clause (ii)— 

24 (A) by striking ‘‘(ii) which will’’ and insert25 ing the following: 


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1 ‘‘(ii) In the case of an enterprise— 

2 ‘‘(I) described in clause (i)(I), 

3 which will’’; 

4 (B) by striking the period at the end and 

5 inserting ‘‘; or’’; and 

6 (C) by adding at the end the following: 

7 ‘‘(II) described in subparagraph 

8 (II) or (III) of clause (i), which will 

9 benefit the United States economy 

10 and create full-time employment for 

11 not fewer than 5 United States citi12 zens or aliens lawfully admitted for 

13 permanent residence or other immi14 grants lawfully authorized to be em15 ployed in the United States (other 

16 than the immigrant and the immi17 grant’s spouse, sons, or daughters).’’. 

18 (b) CHANGES TO CAPITAL REQUIREMENTS.—Section 

19 203(b)(5)(C)(i) of such Act (8 U.S.C. 1153(b)(5)(C)(i)) 

20 is amended by inserting after ‘‘$1,000,000’’ the following: 

21 ‘‘in the case of an enterprise described in subparagraph 

22 (A)(i)(I), $500,000 in the case of an enterprise described 

23 in subparagraph (A)(i)(II), and $500,000 in the case of 

24 an enterprise described in subparagraph (A)(i)(III)’’. 


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1 (c) DEFINITIONS.—Section 203(b)(5) of such Act (8 

2 U.S.C. 1153(b)(5)) is amended by adding at the end the 

3 following: 

4 ‘‘(E) QUALIFIED VENTURE CAPITAL OPER5 ATING COMPANY DEFINED.—In this paragraph, 

6 the term ‘qualified venture capital operating 

7 company’ means an entity that— 

8 ‘‘(i) is registered under the Invest9 ment Company Act of 1940 (15 U.S.C. 

10 80a-1 et seq.); or 

11 ‘‘(ii) is an investment company, as de12 fined in subsection (a)(1) of section 3 of 

13 such Act (15 U.S.C. 80a-3), that is exempt 

14 from registration under subsection (c)(1) 

15 or (c)(7) of such section, is not registered, 

16 and— 

17 ‘‘(I) is organized or incorporated, 

18 and domiciled, in the United States, 

19 and the majority ownership of which 

20 is composed of United States citizens 

21 or aliens lawfully admitted to the 

22 United States for permanent resi23 dence; or 

24 ‘‘(II) is owned or controlled by an 

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1 porated, and domiciled, in the United 

2 States, and the majority ownership of 

3 that entity is composed of United 

4 States citizens or aliens lawfully ad5 mitted to the United States for per6 manent residence. 

7 ‘‘(F) ANGEL INVESTOR DEFINED.—In this 

8 paragraph, the term ‘angel investor’ means— 

9 ‘‘(i) any individual who is a United 

10 States citizen or an alien lawfully admitted 

11 to the United States for permanent resi12 dence, or any entity wholly owned and con13 trolled by United States citizens or aliens 

14 lawfully admitted to the United States for 

15 permanent residence; or 

16 ‘‘(ii) any entity that has made at least 

17 5 angel investments totaling at least 

18 $500,000 during the 3 years preceding the 

19 completion of an investment agreement de20 scribed in subparagraph (A)(i)(III). 

21 ‘‘(G) ANGEL INVESTMENT.—In this para22 graph, the term ‘angel investment’ means an in23 vestment made in a commercial enterprise that, 

24 prior to such investment, was not owned or con25 trolled by— 


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1 ‘‘(i) the investor; 

2 ‘‘(ii) any member of the immediate 

3 family of the investor; or 

4 ‘‘(iii) any entity owned or controlled 

5 by any member of the immediate family of 

6 the investor.’’. 

7 (d) CONFORMING AMENDMENTS TO CONDITIONAL

8 PERMANENT STATUS PROVISIONS.— 

9 (1) TERMINATION OF STATUS IF FINDING THAT

10 QUALIFYING ENTREPRENEURSHIP IMPROPER.—Sec11 tion 216A(b)(1)(B) of such Act (8 U.S.C. 

12 1186b(b)(1)(B)) is amended to read as follows: 

13 ‘‘(B)(i) the alien— 

14 ‘‘(I) did not invest, or was not actively 

15 in the process of investing, the requisite 

16 capital described in section 

17 203(b)(5)(A)(i)(I), or was not sustaining 

18 such actions throughout the period of the 

19 alien’s residence in the United States; or 

20 ‘‘(II) did not complete an investment 

21 agreement described in subclause (II) or 

22 (III) of section 203(b)(5)(A)(i), or such 

23 agreement was not carried out or was not 

24 actively in the process of being carried out; 

25 or 


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1 ‘‘(ii) the commercial enterprise did not— 

2 ‘‘(I) create the minimum number of 

3 jobs required to be created under section 

4 203(b)(5)(A)(ii); or 

5 ‘‘(II) generate a profit and at least 

6 $1,000,000 in revenue; or’’. 

7 (2) CONTENTS OF PETITION.—Section 

8 216A(d)(1) of such Act (8 U.S.C. 1186b(d)(1)) is 

9 amended— 

10 (A) in the matter preceding subparagraph 

11 (A), by striking ‘‘that the alien—’’ and insert12 ing ‘‘that—’’; 

13 (B) by amending subparagraph (A) to read 

14 as follows: 

15 ‘‘(A)(i) the alien— 

16 ‘‘(I) invested, or was actively in the 

17 process of investing, the requisite capital 

18 described in section 203(b)(5)(A)(i)(I), and 

19 sustained such actions throughout the pe20 riod of the alien’s residence in the United 

21 States; or 

22 ‘‘(II) completed an investment agree23 ment described in subclause (II) or (III) of 

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1 ment was carried out or was actively in the 

2 process of being carried out; and 

3 ‘‘(ii) the commercial enterprise— 

4 ‘‘(I) created the minimum number of 

5 jobs required to be created under section 

6 203(b)(5)(A)(ii); or 

7 ‘‘(II) generated a profit and at least 

8 $1,000,000 in revenue; and’’; and 

9 (C) in subparagraph (B), by inserting ‘‘the 

10 alien’’ before ‘‘is otherwise’’. 

11 CHAPTER 5—EFFECTIVE DATE 

12 SEC. 599B. APPLICATION. 

13 Except as specifically otherwise provided, the amend14 ments made by this title shall apply to applications filed 

15 on or after the date of the enactment of this Act. 

16 TITLE VI—INTEGRATION OF 

17 NEW AMERICANS 

18 Subtitle A—Citizenship Promotion 

19 SEC. 601. IMMIGRATION SERVICE FEES. 

20 (a) IN GENERAL.—Subsection (m) of section 286 of 

21 the Immigration and Nationality Act (8 U.S.C. 1356(m)) 

22 is amended to read as follows: 

23 ‘‘(m) IMMIGRATION SERVICE FEES.— 

24 ‘‘(1) IN GENERAL.—Except as provided in para25 graph (2) and notwithstanding any other provision 


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1 of law, all adjudication fees as are designated by the 

2 Secretary of Homeland Security in regulations shall 

3 be deposited as offsetting receipts into a separate ac4 count entitled ‘Immigration Examinations Fee Ac5 count’ in the Treasury of the United States, whether 

6 collected directly by the Secretary or through clerks 

7 of courts. 

8 ‘‘(2) VIRGIN ISLANDS AND GUAM.—All fees re9 ceived by the Secretary of Homeland Security from 

10 applicants residing in the Virgin Islands of the 

11 United States, or in Guam, under this subsection 

12 shall be paid over to the treasury of the Virgin Is13 lands or to the treasury of Guam, respectively. 

14 ‘‘(3) FEES FOR IMMIGRATION SERVICES.— 

15 ‘‘(A) IN GENERAL.—Subject to subpara16 graph (B), the Secretary of Homeland Security 

17 may set fees for providing immigration services 

18 at a level that will— 

19 ‘‘(i) ensure recovery of the full costs 

20 of providing such services, or a portion 

21 thereof, including the costs of similar serv22 ices provided without charge to asylum ap23 plicants or other immigrants; and 


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1 ‘‘(ii) recover the full cost of admin2 istering the collection of fees under this 

3 paragraph, or a portion thereof. 

4 ‘‘(B) REPORT REQUIREMENT.—The Sec5 retary of Homeland Security may not increase 

6 any fee under this paragraph above the level of 

7 such fee on the day before the date of the intro8 duction of the Citizenship Promotion Act of 

9 2009, until— 

10 ‘‘(i) the Secretary submits to the 

11 Committee on the Judiciary of the Senate 

12 and the Committee on the Judiciary of the 

13 House of Representatives a report that— 

14 ‘‘(I) identifies the direct and 

15 overhead costs associated with pro16 viding immigration services, and dis17 tinguishes such costs from immigra18 tion enforcement and national security 

19 costs; 

20 ‘‘(II) identifies the costs allocable 

21 to providing the premium processing 

22 services to business customers pre23 scribed by section 286(u) of this Act; 

24 describes the extent to which the fee 

25 prescribed in that section is set at a 


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1 level that ensures recovery of those 

2 costs; and identifies the amount of 

3 funding that is being allocated for the 

4 infrastructure improvements in the 

5 adjudications and customer-service 

6 processes as prescribed by that sec7 tion; and 

8 ‘‘(III) contains information re9 garding the amount the fee will be in10 creased; and 

11 ‘‘(ii) a period of 45 days has expired 

12 beginning on the date that the report in 

13 clause (i) is received by the committees de14 scribed in such clause. 

15 ‘‘(4) WAIVERS OF FEES FOR IMMIGRATION

16 SERVICES.— 

17 ‘‘(A) Except as otherwise provided in this 

18 paragraph, any of the fees for immigration 

19 services described in paragraph (3)(A) of this 

20 section may be waived by the Department of 

21 Homeland Security in any case under its juris22 diction in which the alien or other party af23 fected is able to substantiate that he or she is 

24 unable to pay the prescribed fee. The person 

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1 davit, or unsworn declaration made pursuant to 

2 section 1746 of title 28, United States Code, 

3 asking for permission to prosecute without pay4 ment of fee of the application, petition, appeal, 

5 motion, or request, and stating his or her belief 

6 that he or she is entitled to or deserving of the 

7 benefit requested and the reasons for his or her 

8 inability to pay. The officer of the Department 

9 of Homeland Security having jurisdiction to 

10 render a decision on the application, petition, 

11 appeal, motion, or request may, in his or her 

12 discretion, grant the waiver of fee. The payment 

13 of the additional sum prescribed by section 

14 245(i) of the Act when applying for adjustment 

15 of status under section 245 of the Act may not 

16 be waived. The fee for the employment-based 

17 petitions and applications prescribed by section 

18 286(u) of the Act may not be waived. 

19 ‘‘(B) The Secretary of Homeland Security 

20 shall prescribe by regulations the criteria that 

21 applicants must meet for the approval of the 

22 waivers of fees in subparagraph (A), and the 

23 documentation that applicants must submit to 

24 substantiate that they meet such criteria. The 

25 regulations shall include a form for the affidavit 


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1 or declaration described in subparagraph (A) 

2 that must be completed by applicants for the 

3 waivers of fees. An applicant shall be deemed to 

4 have substantiated that he or she is unable to 

5 pay the prescribed fee if— 

6 ‘‘(i) the individual has demonstrated 

7 that within 180 days of the receipt of the 

8 application, he or she qualified for or re9 ceived any public benefit funded in whole 

10 or in part by funds provided by the Fed11 eral Government that the Federal agency 

12 administering the Federal funds has deter13 mined to be a Federal ‘means-tested public 

14 benefit’ under the Personal Responsibility 

15 and Work Opportunity Reconciliation Act 

16 of 1996, Public Law 104–193; or 

17 ‘‘(ii) the individual has demonstrated 

18 that his or her annual household income is 

19 at or below 125 percent of the poverty 

20 level, as indicated in the most recent Fed21 eral poverty guidelines set by the Secretary 

22 of Health and Human Services.’’. 

23 (b) SENSE OF CONGRESS.—It is the sense of Con24 gress that— 


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1 (1) the Secretary of Homeland Security should 

2 set fees under section 286(m)(3) of the Immigration 

3 and Nationality Act (8 U.S.C. 1356(m)(3)), as 

4 amended by subsection (a) of this section, at a level 

5 that ensures recovery of only the direct costs associ6 ated with the services described in such section 

7 286(m)(3); and 

8 (2) Congress should appropriate to the Sec9 retary of Homeland Security such funds as may be 

10 necessary to cover the indirect costs associated with 

11 the services described in such section 286(m)(3). 

12 (c) TECHNICAL AMENDMENT.—Section 286 of the 

13 Immigration and Nationality Act (8 U.S.C. 1356) is 

14 amended— 

15 (1) in subsections (d), (e), (f), (h), (i), (j), (k), 

16 (l), (n), (o), (q), (t), and (u), by striking ‘‘Attorney 

17 General’’ each place it appears and inserting ‘‘Sec18 retary of Homeland Security’’; 

19 (2) in subsection (i) of such section, by striking 

20 ‘‘Attorney General’s’’ and inserting ‘‘Secretary’s’’; 

21 and 

22 (3) in subsection (r)— 

23 (A) in paragraph (2), by striking ‘‘Depart24 ment of Justice’’ and inserting ‘‘Department of 

25 Homeland Security’’; and 


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1 (B) in paragraphs (3) and (4), by striking 

2 ‘‘Attorney General’’ each place it appears and 

3 inserting ‘‘Secretary of Homeland Security’’. 

4 (d) FUNDING.—Fees and fines deposited in the Secu5 rity and Prosperity Account under section 286(w)(3)(B) 

6 of the Immigration and Nationality Act may be used to 

7 carry out this section. 

8 SEC. 602. ADMINISTRATION OF TESTS FOR NATURALIZA9 TION; FULFILLMENT BY ELDERLY PERSONS 

10 OF REQUIREMENT FOR NATURALIZATION RE11 LATING TO KNOWLEDGE OF ENGLISH LAN12 GUAGE. 

13 (a) IN GENERAL.—Subsection (a) of section 312 of 

14 the Immigration and Nationality Act (8 U.S.C. 1423) is 

15 amended to read as follows: 

16 ‘‘(a) NATURALIZATION TEST.— 

17 ‘‘(1) REQUIREMENTS.—Except as otherwise 

18 provided in this title, a person may not be natural19 ized as a citizen of the United States upon the appli20 cation of such person if such person cannot dem21 onstrate the following: 

22 ‘‘(A) An understanding of the English lan23 guage, including an ability to read, write, and 

24 speak words in the ordinary usage in the 

25 English language. 


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1 ‘‘(B) A knowledge and understanding of— 

2 ‘‘(i) the fundamentals of the history of 

3 the United States; and 

4 ‘‘(ii) the principles and form of gov5 ernment of the United States. 

6 ‘‘(2) TESTING.— 

7 ‘‘(A) UNIFORMITY OF TEST ADMINISTRA8 TION.—The Secretary of Homeland Security, in 

9 administering any test that the Secretary uses 

10 to determine whether an applicant for natu11 ralization as a citizen of the United States has 

12 the proficiency and knowledge sufficient to meet 

13 the requirements of paragraph (1), shall admin14 ister such test uniformly throughout the United 

15 States, including the application of the criteria 

16 set forth in subparagraph (B). 

17 ‘‘(B) CONSIDERATION.—In selecting and 

18 phrasing items in the administration of a test 

19 described in subparagraph (A) and in evalu20 ating the performance of an applicant on such 

21 test, the Secretary shall consider the following: 

22 ‘‘(i) The age of the applicant. 

23 ‘‘(ii) The education level of the appli24 cant. 


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1 ‘‘(iii) The amount of time the appli2 cant has resided in the United States. 

3 ‘‘(iv) The efforts made by the appli4 cant, and the opportunities available to the 

5 applicant, to acquire the knowledge and 

6 proficiencies required by paragraph (1). 

7 ‘‘(v) Such other factors as the Sec8 retary considers appropriate. 

9 ‘‘(C) ENGLISH LANGUAGE TESTING.—The 

10 requirement in paragraph (1)(A) shall be satis11 factorily met if an applicant can— 

12 ‘‘(i) speak words in ordinary usage in 

13 the English language; and 

14 ‘‘(ii) read or write simple words and 

15 phrases in ordinary usage in the English 

16 language. 

17 ‘‘(D) PROHIBITION ON EXTRAORDINARY

18 AND UNREASONABLE CONDITIONS.—The Sec19 retary may not impose any extraordinary or un20 reasonable condition on any applicant seeking 

21 to meet the requirements of paragraph (1).’’. 

22 (b) PROMOTING CITIZENSHIP AMONG THE ELDER23 LY.—Subsection (b) of such section is amended— 

24 (1) in paragraph (1), by striking ‘‘subsection 

25 (a)’’ and inserting ‘‘subsection (a)(1)’’; 


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1 (2) by amending paragraph (2) to read as fol2 lows: 

3 ‘‘(2) The requirement of subsection (a)(1)(A) 

4 shall not apply to any person who, on the date of the 

5 filing of the person’s application for naturalization 

6 as provided in section 334— 

7 ‘‘(A) is over 50 years of age and has been 

8 living in the United States for periods totaling 

9 at least twenty years subsequent to a lawful ad10 mission for permanent residence, 

11 ‘‘(B) is over 55 years of age and has been 

12 living in the United States for periods totaling 

13 at least 15 years subsequent to a lawful admis14 sion for permanent residence; or 

15 ‘‘(C) is over 60 years of age and has been 

16 living in the United States for periods totaling 

17 at least 5 years subsequent to a lawful admis18 sion for permanent residence.’’. 

19 SEC. 603. VOLUNTARY ELECTRONIC FILING OF APPLICA20 TIONS. 

21 The Secretary of Homeland Security may not require 

22 that an applicant or petitioner for permanent residence or 

23 citizenship of the United States use an electronic method 

24 to file any application to, or access a customer account. 


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1 SEC. 604. TIMELY BACKGROUND CHECKS. 

2 (a) STUDY.— 

3 (1) IN GENERAL.—The Comptroller General of 

4 the United States shall conduct a study on the proc5 ess used by the Department of Justice or the De6 partment of Homeland Security on the day before 

7 the date of the enactment of this Act to conduct a 

8 background check on an applicant for citizenship of 

9 the United States. 

10 (2) REPORT.—Not later than 1 year after the 

11 date of the enactment of this Act and annually 

12 thereafter, the Comptroller General of the United 

13 States shall report to Congress on the findings of 

14 the study required by paragraph (1). 

15 (3) CONTENTS OF REPORT.—The report re16 quired by paragraph (2) shall include the following 

17 information with respect to the calendar year pre18 ceding the date on which the report is filed: 

19 (A) The number of background checks con20 ducted by the Department of Justice or the De21 partment of Homeland Security on applicants 

22 for citizenship of the United States. 

23 (B) The types of such background checks 

24 conducted. 

25 (C) The average time spent on each such 

26 type of background check. 


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1 (D) A description of the obstacles that im2 pede the timely completion of such background 

3 checks. 

4 (4) EXAMINATION OF NAME CHECK CON5 DUCTED BY THE DEPARTMENT OF JUSTICE.—The 

6 first report required by paragraph (2) shall also in7 clude an examination of the name check conducted 

8 by the Department of Justice to assess the extent to 

9 which the name check provides information relating 

10 to the eligibility of applicants for citizenship of the 

11 United States that is not otherwise provided by 

12 other background checks conducted by the Depart13 ment of Justice or the Department of Homeland Se14 curity. 

15 (b) TIMELY COMPLETION OF BACKGROUND

16 CHECKS.— 

17 (1) ATTORNEY GENERAL BACKGROUND

18 CHECKS.—With respect to a request submitted to 

19 the Attorney General by the Secretary of Homeland 

20 Security for a background check on an applicant for 

21 temporary or permanent residence or citizenship of 

22 the United States, the Attorney General shall make 

23 a reasonable effort to complete a background check 

24 on such applicant not later than 90 days after the 


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1 Attorney General receives such request from the 

2 Secretary of Homeland Security. 

3 (2) DEPARTMENT OF HOMELAND SECURITY

4 BACKGROUND CHECKS.—With respect to background 

5 checks on an applicant for temporary or permanent 

6 residence or citizenship of the United States, the 

7 Secretary of Homeland Security shall make a rea8 sonable effort to complete the background check on 

9 such applicant not later than 90 days after the date 

10 the application is received by the Department of 

11 Homeland Security. 

12 (3) DELAYS ON ATTORNEY GENERAL BACK13 GROUND CHECKS.—If a background check described 

14 in paragraph (1) is not completed by the Attorney 

15 General before the date that is 91 days after the 

16 date that the Attorney General receives a request de17 scribed in paragraph (1)— 

18 (A) the Attorney General shall document 

19 the reason why such background check was not 

20 completed before such date; and 

21 (B) if such background check is not com22 pleted before the date that is 181 days after the 

23 date of such receipt, then the Attorney General 

24 shall, not later than 210 days after the date of 

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1 sional committees and the Secretary of Home2 land Security a report that describes— 

3 (i) the reason that such background 

4 check was not completed within 180 days; 

5 and 

6 (ii) the earliest date on which the At7 torney General is certain the background 

8 check will be completed. 

9 (4) DELAYS ON DEPARTMENT OF HOMELAND

10 SECURITY BACKGROUND CHECKS.—If a background 

11 check described in paragraph (2) is not completed by 

12 the Secretary of Homeland Security before the date 

13 that is 91 days after the date that the Department 

14 of Homeland Security receives the application de15 scribed in paragraph (2)— 

16 (A) the Secretary of Homeland Security 

17 shall document the reason why such back18 ground check was not completed before such 

19 date; and 

20 (B) if such background check is not com21 pleted before the date that is 181 days after the 

22 date of such receipt, then the Secretary of 

23 Homeland Security shall, not later than 210 

24 days after the date of such receipt, submit to 


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1 the appropriate congressional committees a re2 port that describes— 

3 (i) the reason that such background 

4 check was not completed within 180 days; 

5 and 

6 (ii) the earliest date on which the Sec7 retary of Homeland Security is certain the 

8 background check will be completed. 

9 (5) ANNUAL REPORT ON DELAYED ATTORNEY

10 GENERAL BACKGROUND CHECKS.—Not later than 

11 the end of each fiscal year, the Attorney General 

12 shall submit to the appropriate congressional com13 mittees a report containing, with respect to that fis14 cal year— 

15 (A) the number of background checks de16 scribed in subparagraph (B) of paragraph (3); 

17 (B) the time taken to complete each such 

18 background check; 

19 (C) a statistical analysis of the causes of 

20 the delays in completing such background 

21 checks; and 

22 (D) a description of the efforts being made 

23 by the Attorney General to address each such 

24 cause. 


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1 (6) NOTIFICATION TO APPLICANT.—If, with re2 spect to a background check on an applicant de3 scribed in paragraph (2), the Secretary of Homeland 

4 Security is required to furnish a report under para5 graph (3)(B), then the Secretary shall provide to 

6 such applicant a copy of such report, redacted to re7 move any classified information contained therein. 

8 (7) ANNUAL REPORT ON DELAYED HOMELAND

9 SECURITY BACKGROUND CHECKS.—Not later than 

10 the end of each fiscal year, the Secretary of Home11 land Security shall submit to the appropriate con12 gressional committees a report containing, with re13 spect to that fiscal year— 

14 (A) the number of background checks de15 scribed in subparagraph (B) of paragraph (4); 

16 (B) the time taken to complete each such 

17 background check; 

18 (C) a statistical analysis of the causes of 

19 the delays in completing such background 

20 checks; and 

21 (D) a description of the efforts being made 

22 by the Secretary of Homeland Security to ad23 dress each such cause. 

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1 scribed in paragraph (2), the Secretary of Homeland 

2 Security is required to furnish a report to the appro3 priate congressional committees under subsection 

4 (b)(4)(B), then the Secretary shall provide to such 

5 applicant a copy of such report, redacted to remove 

6 any classified information contained therein. 

7 (9) APPROPRIATE CONGRESSIONAL COMMIT8 TEES.—In this subsection, the term ‘‘appropriate 

9 congressional committees’’ means the following: 

10 (A) The Committee on the Judiciary of the 

11 Senate. 

12 (B) The Committee on Homeland Security 

13 and Governmental Affairs of the Senate. 

14 (C) The Committee on the Judiciary of the 

15 House of Representatives. 

16 (D) The Committee on Homeland Security 

17 of the House of Representatives. 

18 (10) FUNDING.—Fees and fines deposited in 

19 the Security and Prosperity Account under section 

20 286(w)(3)(B) of the Immigration and Nationality 

21 Act may be used to carry out this section. 

22 SEC. 605. NATIONAL CITIZENSHIP PROMOTION PROGRAM. 

23 (a) ESTABLISHMENT.— 

24 (1) IN GENERAL.—Not later than 6 months fol25 lowing the date of enactment of this Act, the SecVerDate Nov 24 2008 00:39 Dec 17, 2009 Jkt 089200 PO 00000 Frm 00616 Fmt 6652 Sfmt 6201 E:\BILLS\H4321.IH H4321

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1 retary of Homeland Security shall establish a pro2 gram to assist aliens who have been lawfully admit3 ted for permanent residence in becoming citizens of 

4 the United States. 

5 (2) DESIGNATION.—The program required by 

6 paragraph (1) shall be known as the ‘‘New Ameri7 cans Initiative’’ (in this section referred to as the 

8 ‘‘Program’’). 

9 (b) PROGRAM ACTIVITIES.—As part of the Program 

10 required by subsection (a), the Secretary of Homeland Se11 curity shall— 

12 (1) award grants in accordance with subsection 

13 (c); and 

14 (2) carry out outreach activities in accordance 

15 with subsection (d). 

16 (c) GRANTS TO SUPPORT NATURALIZATION EF17 FORTS.— 

18 (1) IN GENERAL.—The Secretary of Homeland 

19 Security shall award grants to eligible entities to as20 sist aliens who have been lawfully admitted for per21 manent residence in becoming citizens of the United 

22 States. 

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1 profit organization that has experience working with 

2 immigrant communities. 

3 (3) USE OF FUNDS.—Grants awarded under 

4 this subsection shall be used for activities to assist 

5 aliens who have been lawfully admitted for perma6 nent residence in becoming citizens of the United 

7 States, including— 

8 (A) conducting English language and citi9 zenship classes for such aliens; 

10 (B) providing legal assistance, by attorneys 

11 or entities recognized by the Board of Immigra12 tion Appeals, to such aliens to assist such aliens 

13 in becoming citizens of the United States; 

14 (C) carrying out outreach activities and 

15 providing education to immigrant communities 

16 to assist such aliens in becoming citizens of the 

17 United States; and 

18 (D) assisting such aliens with applications 

19 to become citizens of the United States, as al20 lowed by Federal and State law. 

21 (4) APPLICATION FOR GRANT.— 

22 (A) IN GENERAL.—Each eligible entity 

23 seeking a grant under this subsection shall sub24 mit an application to the Secretary of Home25 land Security at such time, in such manner, 


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1 and accompanied by such information as the 

2 Secretary shall require. 

3 (B) CONTENTS.—Each application sub4 mitted pursuant to subparagraph (A) shall in5 clude a description of— 

6 (i) the activities for which a grant 

7 under this section is sought; 

8 (ii) the manner in which the entity 

9 plans to leverage available private and 

10 State and local government resources to 

11 assist aliens who have been lawfully admit12 ted for permanent residence in becoming 

13 citizens of the United States; 

14 (iii) the experience of the entity in 

15 carrying out the activities for which a 

16 grant under this section is sought, includ17 ing the number of aliens and geographic 

18 regions served by such entity; and 

19 (iv) the manner in which the entity 

20 plans to employ best practices developed by 

21 adult educators, State and local govern22 ments, and community organizations— 

23 (I) to promote citizenship and 

24 civic participation by such aliens; and 


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1 (II) to provide assistance to such 

2 aliens with the process of becoming 

3 citizens of the United States. 

4 (d) OUTREACH.—The Secretary of Homeland Secu5 rity shall— 

6 (1) develop outreach materials targeted to 

7 aliens who have been lawfully admitted for perma8 nent residence to encourage such aliens to apply to 

9 become citizens of the United States; and 

10 (2) make such outreach materials available 

11 through— 

12 (A) public service announcements; 

13 (B) advertisements; and 

14 (C) such other media as the Secretary de15 termines is appropriate. 

16 (e) FUNDING.—Fees and fines deposited in the Secu17 rity and Prosperity Account under section 286(w)(3)(B) 

18 of the Immigration and Nationality Act may be used to 

19 carry out this section. 

20 SEC. 606. EFFECTIVE DATE. 

21 The amendments made by this title shall take effect 

22 on the date of the enactment of this Act and shall apply 

23 to applications for naturalization pending on or after such 

24 date. 


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1 Subtitle B—Miscellaneous 

2 SEC. 611. GRANTS TO SUPPORT PUBLIC EDUCATION AND 

3 COMMUNITY TRAINING. 

4 (a) GRANTS AUTHORIZED.—The Assistant Attorney 

5 General, Office of Justice Programs, may award grants 

6 to qualified nonprofit community organizations to educate, 

7 train, and support non-profit agencies, immigrant commu8 nities, and other interested entities regarding the provi9 sions of this Act and the amendments made by this Act. 

10 (b) USE OF FUNDS.— 

11 (1) IN GENERAL.—Grants awarded under this 

12 section shall be used— 

13 (A) for public education, training, technical 

14 assistance, government liaison, and all related 

15 costs (including personnel and equipment) in16 curred by the grantee in providing services re17 lated to this Act; and 

18 (B) to educate, train, and support non19 profit organizations, immigrant communities, 

20 and other interested parties regarding this Act 

21 and the amendments made by this Act and on 

22 matters related to its implementation. 

23 (2) EDUCATION.—In addition to the purposes 

24 described in paragraph (1), grants awarded under 

25 this section shall be used to— 


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1 (A) educate immigrant communities and 

2 other interested entities regarding— 

3 (i) the individuals and organizations 

4 that can provide authorized legal represen5 tation in immigration matters under regu6 lations prescribed by the Secretary; and 

7 (ii) the dangers of securing legal ad8 vice and assistance from those who are not 

9 authorized to provide legal representation 

10 in immigration matters; 

11 (B) educate interested entities regarding 

12 the requirements for obtaining nonprofit rec13 ognition and accreditation to represent immi14 grants under regulations prescribed by the Sec15 retary; 

16 (C) provide nonprofit agencies with train17 ing and technical assistance on the recognition 

18 and accreditation process; and 

19 (D) educate nonprofit community organi20 zations, immigrant communities, and other in21 terested entities regarding— 

22 (i) the process for obtaining benefits 

23 under this Act or under an amendment 

24 made by this Act; and 


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1 (ii) the availability of authorized legal 

2 representation for low-income persons who 

3 may qualify for benefits under this Act or 

4 under an amendment made by this Act. 

5 (c) DIVERSITY.—The Assistant Attorney General 

6 shall ensure, to the extent possible, that the nonprofit 

7 community organizations receiving grants under this sec8 tion serve geographically diverse locations and ethnically 

9 diverse populations who may qualify for benefits under the 

10 Act. 

11 (d) FUNDING.—Fees and fines deposited in the Secu12 rity and Prosperity Account under section 286(w)(3)(B) 

13 of the Immigration and Nationality Act may be used to 

14 carry out this section. 

15 SEC. 612. GRANT PROGRAM TO ASSIST APPLICANTS FOR 

16 NATURALIZATION. 

17 (a) PURPOSE.—The purpose of this section is to es18 tablish a grant program within United States 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 natu23 ralization. 

24 (b) DEFINITIONS.—In this section: 


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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 (c). 

12 (c) ESTABLISHMENT OF INITIAL ENTRY, ADJUST13 MENT, AND CITIZENSHIP ASSISTANCE GRANT PRO14 GRAM.— 

15 (1) GRANTS AUTHORIZED.—The Secretary, 

16 working through the Director of United States 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 conditional 


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1 nonimmigrant or conditional nonimmigrant de2 pendent classification under section 401. Such 

3 assistance may include assisting applicants in— 

4 (i) screening to assess prospective ap5 plicants’ potential eligibility for partici6 pating in such program; 

7 (ii) filling out applications for such 

8 program; 

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 section 401. 

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 402 of this Act or section 245 

24 of the Immigration and Nationality Act (8 

25 U.S.C. 1255). 


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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.—Subject to subparagraph 

11 (B), each grant awarded under this section 

12 shall be awarded for a period of not more than 

13 3 years. 

14 (B) RENEWAL.—The Secretary may renew 

15 any grant awarded under this section in 1-year 

16 increments. 

17 (4) APPLICATION FOR GRANTS.—Each entity 

18 desiring an IEACA grant under this section shall 

19 submit an application to the Secretary at such time, 

20 in such manner, and accompanied by such informa21 tion as the Secretary may require. 

22 (5) ELIGIBLE ORGANIZATIONS.—A community23 based organization applying for a grant under this 

24 section to provide services described in subparagraph 


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1 (A), (B), or (C)(iv) of paragraph (2) may not receive 

2 such a grant unless the organization is— 

3 (A) recognized by the Board of Immigra4 tion Appeals under section 292.2 of title 8, 

5 Code of Federal Regulations; or 

6 (B) otherwise directed by an attorney. 

7 (6) SELECTION OF GRANTEES.—Grants award8 ed under this section shall be awarded on a competi9 tive basis. 

10 (7) GEOGRAPHIC DISTRIBUTION OF GRANTS.— 

11 The Secretary shall approve applications under this 

12 section in a manner that ensures, to the greatest ex13 tent practicable, that— 

14 (A) not less than 50 percent of the funding 

15 for grants under this section are awarded to 

16 programs located in the 10 States with the 

17 highest percentage of residents who were born 

18 in foreign countries; and 

19 (B) not less than 20 percent of the funding 

20 for grants under this section are awarded to 

21 programs located in States that are not de22 scribed in subparagraph (A). 

23 (8) ETHNIC DIVERSITY.—The Secretary shall 

24 ensure that community-based organizations receiving 

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1 nically diverse population, to the greatest extent pos2 sible. 

3 (d) LIAISON BETWEEN USCIS AND GRANTEES.— 

4 The Secretary shall establish a liaison between United 

5 States Citizenship and Immigration Services and the com6 munity of providers of services under this section to assure 

7 quality control, efficiency, and greater client willingness 

8 to come forward. 

9 (e) REPORTS TO CONGRESS.—Not later than 180 

10 days after the date of enactment of this Act, and July 

11 1 of each subsequent year, the Secretary shall submit a 

12 report to Congress that includes information regarding— 

13 (1) the status of the implementation of this sec14 tion; 

15 (2) the grants issued pursuant to this section; 

16 and 

17 (3) the activities carried out with such grants. 

18 (f) SOURCE OF GRANT FUNDS.— 

19 (1) APPLICATION FEES.—The Secretary may 

20 use funds made available under section 401(g)(2)(A) 

21 of this Act and section 218A(b)(3) of the Immigra22 tion and Nationality Act, as added by this Act, to 

23 carry out this section. 

24 (2) FUNDING.—Fees and fines deposited in the 

25 Security and Prosperity Account under section 


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1 286(w)(3)(B) of the Immigration and Nationality 

2 Act may be used to carry out this section. 

3 (g) DISTRIBUTION OF CONDITIONAL NONIMMIGRANT

4 VISA FEES AND FINES.—Notwithstanding section 

5 401(g)(2)(B), 2 percent of the fees and fines collected 

6 under section 401 shall be made available for grants under 

7 the Initial Entry, Adjustment, and Citizenship Assistance 

8 Grant Program established under this section. 

9 SEC. 613. NATURALIZATION FOR CERTAIN U.S. HIGH 

10 SCHOOL GRADUATES. 

11 (a) IN GENERAL.—Title III of the Immigration and 

12 Nationality Act (8 U.S.C. 1401 et seq.) is amended by 

13 inserting after section 320 the following: 

14 ‘‘SEC. 321. CITIZENSHIP FOR CERTAIN U.S. HIGH SCHOOL 

15 GRADUATES. 

16 ‘‘(a) REQUIREMENTS DEEMED SATISFIED.—In the 

17 case of an alien described in subsection (b), the alien shall 

18 be deemed to have satisfied the requirements of section 

19 312(a). 

20 ‘‘(b) ALIENS DESCRIBED.—An alien is described in 

21 this subsection if the alien is under 25 years of age on 

22 the date on which the alien submits an application for nat23 uralization under section 334 that contains the following: 

24 ‘‘(1) Transcripts from public or private schools 

25 in the United States that demonstrate the following: 


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1 ‘‘(A) The alien completed grades 6 through 

2 12 in the United States and was graduated 

3 with a high school diploma. 

4 ‘‘(B) The alien completed a curriculum 

5 that reflects knowledge of United States his6 tory, Government, and civics. 

7 ‘‘(2) A copy of the alien’s high school diploma. 

8 ‘‘(c) REDUCED FEE.—The Secretary of Homeland 

9 Security shall reduce the naturalization application fee for 

10 an alien described in subsection (b) by 50 percent.’’. 

11 (b) CLERICAL AMENDMENT.—The table of contents 

12 for the Immigration and Nationality Act is amended by 

13 inserting after the item relating to section 320 the fol14 lowing: 

‘‘Sec. 321. Citizenship for certain U.S. high school graduates.’’. 

15 (c) APPLICABILITY.—The amendments made by this 

16 Section shall take effect on the date of the enactment of 

17 this Act and shall apply to applicants for naturalization 

18 who apply for naturalization on or after such date. 

19 (d) REGULATIONS.—The Secretary of Homeland Se20 curity shall promulgate regulations to carry out this Sec21 tion and the amendments made by this Section not later 

22 than 180 days after the date of the enactment of this Act. 

23 SEC. 614. FAMILY INTEGRATION. 

24 Section 201 of the Immigration and Nationality Act 

25 (8 U.S.C. 1151) is amended by striking in subsection 


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1 (b)(2)(A)(i) the number ‘‘21’’ and inserting the number 

2 ‘‘18’’. 

3 SEC. 615. CONSIDERATION FOR DOMESTIC RESETTLEMENT 

4 OF REFUGEES. 

5 Section 412 is amended as follows: 

6 (1) In subsection (a)(2)(C)(i) strike ‘‘insure’’ 

7 and insert ‘‘ensure’’. 

8 (2) At the end, add the following: 

9 ‘‘(V) the geography, climate and 

10 environmental composition of the pro11 posed resettlement area compared 

12 with that of the geography, climate 

13 and environmental composition of 

14 their country of origin.’’. 

15 SEC. 616. CREDITS FOR TEACHERS OF ENGLISH LANGUAGE 

16 LEARNERS. 

17 (a) IN GENERAL.—Subpart A of part IV of sub18 chapter A of chapter 1 of the Internal Revenue Code of 

19 1986 (relating to nonrefundable personal credits) is 

20 amended by inserting after section 25D the following new 

21 section: 

22 ‘‘SEC. 25E. TEACHERS OF ENGLISH LANGUAGE LEARNERS. 

23 ‘‘(a) IN GENERAL.—In the case of an eligible teacher, 

24 there shall be allowed a credit against the tax imposed 

25 by this chapter for the taxable year an amount equal to— 


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1 ‘‘(1) $1,500, for each of the first 5 taxable 

2 years for which the taxpayer is allowed a credit 

3 under this section; and 

4 ‘‘(2) $1,000, for any other taxable year. 

5 ‘‘(b) CREDIT ALLOWED ONLY FOR 10 TAXABLE

6 YEARS.—No credit shall be allowed under this section 

7 with respect to a taxpayer for any taxable year after the 

8 10th taxable year for which such taxpayer is allowed a 

9 credit under this section. 

10 ‘‘(c) ELIGIBLE TEACHER.—For purposes of this sec11 tion— 

12 ‘‘(1) IN GENERAL.—Except as provided in para13 graph (2), the term ‘eligible teacher’ means, with re14 spect to a taxable year, any individual who is— 

15 ‘‘(A) a full-time teacher of English as a 

16 second language or bilingual instruction for the 

17 academic year ending in such taxable year, or 

18 ‘‘(B) an eligible part-time teacher of 

19 English as a second language or bilingual in20 struction for the academic year ending in such 

21 taxable year. 

22 ‘‘(2) ELIGIBLE PART-TIME TEACHER.—The 

23 term ‘eligible part-time teacher’ means, with respect 

24 to a taxable year, an individual who teaches at least 

25 20 hours per week during the academic year ending 


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1 in such taxable year. Such term does not include any 

2 individual who is a full-time teacher of English as a 

3 second language during such academic year. 

4 ‘‘(3) SPECIAL RULE.—In the case of an eligible 

5 part-time teacher, subsection (a) shall be applied by 

6 substituting ‘$375’ for ‘$750’ and by substituting 

7 ‘$250’ for ‘$500’.’’. 

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

9 for such subpart is amended by inserting after the item 

10 relating to section 25D the following new item: 

‘‘Sec. 25E. Teachers of English language learners.’’. 

11 (c) TEACHER CERTIFICATION EXPENSES.—Part VII 

12 of subchapter B of chapter 1 of the Internal Revenue Code 

13 of 1986 (relating to additional itemized deductions for in14 dividuals) is amended by redesignating section 224 as sec15 tion 225 and by inserting after section 223 the following 

16 new section: 

17 ‘‘SEC. 224. CERTIFICATION EXPENSES FOR TEACHERS OF 

18 ENGLISH LANGUAGE LEARNERS. 

19 ‘‘(a) IN GENERAL.—In the case of an individual, 

20 there shall be allowed a deduction for eligible teacher cer21 tification expenses paid or incurred by the taxpayer for 

22 the taxable year. 

23 ‘‘(b) ELIGIBLE TEACHER CERTIFICATION EX24 PENSES.—The term ‘eligible teacher certification ex25 penses’— 


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1 ‘‘(1) means the tuition and fees required for the 

2 enrollment or attendance of the taxpayer at an eligi3 ble educational institution (as defined in section 

4 25A) for a course which is required for certification 

5 or licensure of such individual as qualified to provide 

6 English as a second language or bilingual instruction 

7 to elementary or secondary school students who are 

8 limited English proficient (as defined in section 

9 9901 of the Elementary and Secondary Education 

10 Act of 1965); and 

11 ‘‘(2) shall not include any amounts that are— 

12 ‘‘(A) used for a course that is part of the 

13 individual’s degree program; or 

14 ‘‘(B) funded by another person or any gov15 ernmental entity. 

16 ‘‘(c) DENIAL OF DOUBLE BENEFIT.—No deduction 

17 shall be allowed under this section for any expense for 

18 which a deduction or credit is allowed under any other 

19 provision of this chapter. 

20 ‘‘(d) TERMINATION.—This section shall not apply to 

21 expenses paid or incurred after December 31, 2014.’’. 

22 (d) CERTIFICATION DEDUCTION ALLOWED WHETH23 ER OR NOT TAXPAYER ITEMIZES OTHER DEDUCTIONS.— 

24 Subsection (a) of section 62 of such Code is amended by 


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1 inserting after paragraph (21) the following new para2 graph: 

3 ‘‘(22) TEACHER CERTIFICATION EXPENSES.— 

4 The deduction allowed by section 224.’’. 

5 (e) CLERICAL AMENDMENT.—The table of sections 

6 for part VII of subchapter B of chapter 1 of such Code 

7 is amended by striking the last item and inserting the fol8 lowing new item: 

‘‘Sec. 224. Certification expenses for teachers of English language learners.’’. 

9 (f) REGULATIONS.—Not later than 180 days after 

10 the date of the enactment of this Act, the Secretary of 

11 the Treasury shall promulgate regulations implementing 

12 the provisions of this section. 

13 (g) EFFECTIVE DATE.—The amendments made by 

14 this section shall apply to taxable years beginning after 

15 December 31, 2009. 

16 SEC. 617. CREDITS FOR EMPLOYER-PROVIDED ADULT 

17 ENGLISH LITERACY AND BASIC EDUCATION 

18 PROGRAMS. 

19 (a) IN GENERAL.—Subpart D of part IV of sub20 chapter A of chapter 1 of the Internal Revenue Code of 

21 1986 (relating to business related credits) is amended by 

22 adding at the end the following: 


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1 ‘‘SEC. 45R. EMPLOYER-PROVIDED ADULT ENGLISH LIT2 ERACY AND BASIC EDUCATION PROGRAMS. 

3 ‘‘(a) IN GENERAL.—For the purposes of section 38, 

4 the credit determined under this section with respect to 

5 any employer for the taxable year is an amount equal to 

6 20 percent of qualified education program expenses, but 

7 in no case shall the employer receive a credit in an amount 

8 of more than $1,000 per full-time employee participating 

9 in the qualified education program. 

10 ‘‘(b) QUALIFIED EDUCATION PROGRAM EX11 PENSES.—For purposes of this section— 

12 ‘‘(1) IN GENERAL.—The term ‘qualified edu13 cation program expenses’ means expenses paid or in14 curred by an employer to make available qualified 

15 education to employees of the employer, who— 

16 ‘‘(A) are English language learners; and 

17 ‘‘(B)(i) have not received a secondary 

18 school diploma, or its recognized equivalent; or 

19 ‘‘(ii) lack sufficient mastery of basic edu20 cational skills, including financial literacy, to 

21 enable the individuals to function effectively in 

22 society. 

23 ‘‘(2) QUALIFIED EDUCATION.—The term ‘quali24 fied education’ means adult education and literacy 

25 activities provided— 


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1 ‘‘(A) by an eligible provider which for the 

2 fiscal year ending during the employer’s taxable 

3 year receives or is eligible to receive Federal 

4 funds under section 231 of the Adult Education 

5 and Family Literacy Act for adult education 

6 and literacy activities; or 

7 ‘‘(B) in curriculum approved by the De8 partment of Education, the Employment and 

9 Training Administration of the Department of 

10 Labor, or in current use by a Federal agency. 

11 ‘‘(3) ELIGIBLE PROVIDER; ADULT EDUCATION

12 AND LITERACY ACTIVITIES.—The terms ‘eligible pro13 vider’ and ‘adult education and literacy activities’ 

14 shall have the respective meanings given to such 

15 terms in section 203 of the Adult Education and 

16 Family Literacy Act. 

17 ‘‘(4) ENGLISH LANGUAGE LEARNER.—The term 

18 ‘English language learner’ shall have the same 

19 meaning given to such term in section 9101(25) of 

20 the Elementary and Secondary Education Act of 

21 1965. 

22 ‘‘(c) SPECIAL RULES.—For purposes of this sec23 tion— 

24 ‘‘(1) FULL-TIME EMPLOYMENT.—An employee 

25 shall be considered full-time if such employee is emVerDate Nov 24 2008 00:39 Dec 17, 2009 Jkt 089200 PO 00000 Frm 00637 Fmt 6652 Sfmt 6201 E:\BILLS\H4321.IH H4321

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1 ployed at least 30 hours per week for 25 or more 

2 calendar weeks in the taxable year. 

3 ‘‘(2) AGGREGATION RULE.—All persons treated 

4 as a single employer under subsection (a) or (b) or 

5 section 52, or subsection (m) or (o) of section 414, 

6 shall be treated as 1 person. 

7 ‘‘(d) DENIAL OF DOUBLE BENEFIT.—No deduction 

8 or credit shall be allowed under any other provision of this 

9 chapter for any amount taken into account in determining 

10 the credit under this section. 

11 ‘‘(e) TERMINATION.—This section shall not apply to 

12 expenses paid or incurred after December 31, 2014.’’. 

13 (b) CREDIT TO BE PART OF GENERAL BUSINESS

14 CREDIT.—Subsection (b) of section 38 of such Code (re15 lating to the current year business credit) is amended— 

16 (1) by striking ‘‘plus’’ at the end of paragraph 

17 (34); 

18 (2) by striking the period at the end of para19 graph (35) and inserting ‘‘, plus’’; and 

20 (3) by adding at the end the following new 

21 paragraph: 

22 ‘‘(36) the adult English literacy and basic edu23 cation programs credit determined under section 

24 45R.’’. 


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1 (c) CLERICAL AMENDMENT.—The table of sections 

2 for subpart D of part IV of subchapter A of chapter 1 

3 of the such Code is amended by adding at the end the 

4 following new item: 

‘‘Sec. 45R. Employer-provided adult English literacy and basic education programs.’’. 

5 (d) REGULATIONS.—Not later than 180 days after 

6 the date of the enactment of this Act, the Secretary of 

7 the Treasury shall promulgate regulations implementing 

8 the provisions of this section. 

9 (e) EFFECTIVE DATE.—The amendments made by 

10 this section shall apply to taxable years beginning after 

11 December 31, 2009. 

12 SEC. 618. GRANTS TO STATES TO FORM NEW AMERICAN 

13 COUNCILS. 

14 (a) AUTHORITY TO PROVIDE GRANTS.—Subject to 

15 subsections (c) and (d), the Chief of the Office of Citizen16 ship and Immigrant Integration is authorized to provide 

17 competitive grants to States to form State New American 

18 Councils as described in subsection (b) to carry out activi19 ties described in section 303. 

20 (b) STATE NEW AMERICAN COUNCILS.—A State 

21 New American Council shall consist of not less than 15 

22 and not more than 19 individuals from the State and shall 

23 include, to the extent practicable, representatives from the 

24 following sectors: 


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1 (1) Business. 

2 (2) Faith-based organizations. 

3 (3) Civic organizations. 

4 (4) Philanthropic leaders. 

5 (5) Nonprofit organizations, including those 

6 with experience working with immigrant commu7 nities. 

8 (6) Representatives from key education stake9 holders, such as State educational agencies, local 

10 educational agencies, community colleges, teachers, 

11 or organizations representing teachers and other em12 ployees. 

13 (7) Representatives of State adult education of14 fices. 

15 (8) Representatives of State or local public li16 braries. 

17 (9) Representatives of statewide or local govern18 ment officials. 

19 (c) WAIVER OF REQUIREMENT.— 

20 (1) AUTHORITY TO GRANT.—The Chief of the 

21 Office of Citizenship and Immigrant Integration 

22 may award a grant under subsection (a) to a State 

23 without requiring the State to form a State New 

24 American Council if the Chief determines that the 

25 State is carrying out similar statewide initiatives to 


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1 introduce immigrants into the State and into the 

2 United States. 

3 (2) GUIDELINES.—The Chief shall establish 

4 guidelines for awarding grants to States described in 

5 paragraph (1). 

6 (d) GRANTS TO LOCAL GOVERNMENTS.—The Chief 

7 of the Office of Citizenship and Immigrant Integration 

8 may provide a grant under subsection (a) to a local gov9 ernment at the discretion of the Chief. 

10 (e) APPLICATION.—To be eligible to receive a grant 

11 under this section, an applicant shall submit an applica12 tion to the Chief of the Office of Citizenship and Immi13 grant Integration at such time, in such manner, and con14 taining such information as the Chief may reasonably re15 quire. Such application shall include— 

16 (1) if the applicant is a State seeking to form 

17 a State New American Council, an assurance that 

18 such State New American Council will meet the re19 quirements of subsection (b); 

20 (2) the number of immigrants in the State in 

21 which the applicant is located; 

22 (3) a description of the challenges in intro23 ducing new Americans in the State and local com24 munity; and 


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1 (4) any other information that the Chief may 

2 reasonably require. 

3 (f) DURATION.—A grant awarded under subsection 

4 (a) shall be for a period of 5 years. 

5 (g) PRIORITY.—Priority shall be given to grant appli6 cations that— 

7 (1) use matching funds, from non-Federal 

8 sources, which may include in-kind contributions; 

9 and 

10 (2) demonstrate collaboration with private enti11 ties to achieve the goals of their comprehensive plan. 

12 (h) ADDITIONAL CONSIDERATION.—Additional con13 sideration shall be given to grant applications submitted 

14 by States with a large increase in the population of immi15 grants over the previous 10 years relative to past migra16 tion patterns, based on data compiled by the Office of Im17 migration Statistics of the Department of Homeland Secu18 rity. 

19 (i) GRANT AMOUNT.—The amount of a grant award20 ed under subsection (a) shall be not less than $500,000 

21 and not more than $5,000,000 for each fiscal year. 

22 (j) RESERVATIONS.— 

23 (1) NATIONAL.—The Chief of the Office of Citi24 zenship and Immigrant Integration shall reserve not 

25 more than 1 percent of the amount appropriated to 


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1 carry out this section for such Office, including the 

2 evaluation of funds distributed. 

3 (2) STATES.—A State awarded a grant under 

4 subsection (a) may reserve not more than 10 percent 

5 of such grant amount for the creation and operation 

6 of the State New American Council. 

7 (k) FUNDING.—Fees and fines deposited in the Secu8 rity and Prosperity Account under section 286(w)(3)(B) 

9 of the Immigration and Nationality Act may be used to 

10 carry out this section. 

11 SEC. 619. INDEPENDENCE DAY CEREMONIES FOR OATHS 

12 OF ALLEGIANCE. 

13 (a) IN GENERAL.—The Secretary of Homeland Secu14 rity shall make available funds each fiscal year to the Di15 rector of U.S. Citizenship and Immigration Services or to 

16 public or private nonprofit entities to support public cere17 monies for administering oaths of allegiance under section 

18 337(a) of the Immigration and Nationality Act (8 U.S.C. 

19 1448(a)) to legal immigrants whose applications for natu20 ralization have been approved. 

21 (b) CEREMONIES.—A ceremony conducted with funds 

22 under this section— 

23 (1) shall be held on a date that is on or near 

24 Independence Day; and 


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1 (2) shall include appropriate outreach, ceremo2 nial, and celebratory activities. 

3 (c) SELECTION OF SITES.— 

4 (1) IN GENERAL.—The Secretary of Homeland 

5 Security shall select the site for each ceremony con6 ducted with funds under this section. 

7 (2) SELECTION PROCESS.—In selecting a site 

8 under paragraph (1), the Secretary of Homeland Se9 curity should consider— 

10 (A) the number of naturalization appli11 cants living in proximity to the site; and 

12 (B) the degree of participation in and sup13 port for the ceremony by the local community 

14 at the site. 

15 (d) AMOUNTS AVAILABLE; USE OF FUNDS.— 

16 (1) AMOUNTS AVAILABLE.—Amounts made 

17 available under this section for each ceremony shall 

18 not exceed $5,000. 

19 (2) USE OF FUNDS.—Funds made available 

20 under this section may be used only for the fol21 lowing: 

22 (A) Costs of personnel of the Department 

23 of Homeland Security and the Federal judiciary 

24 (including travel and overtime expenses). 


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1 (B) Site rental, including audio equipment 

2 rental. 

3 (C) Logistical requirements, including 

4 sanitation. 

5 (D) Costs for printing brochures about the 

6 naturalization participants and the naturaliza7 tion process. 

8 (3) FUNDING.—Fees and fines deposited in the 

9 Security and Prosperity Account under section 

10 286(w)(3)(B) of the Immigration and Nationality 

11 Act may be used to carry out this section. 

12 (e) APPLICATION.—No amount may be made avail13 able under this section to an entity that is not part of 

14 the Department of Homeland Security, for supporting a 

15 ceremony described in subsection (b), unless— 

16 (1) the entity submits an application to the Sec17 retary of Homeland Security, in a form and manner 

18 specified by the Secretary of Homeland Security; 

19 and 

20 (2) the Secretary of Homeland Security ap21 proves the application. 

Æ 


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