II 

108TH CONGRESS 

2D SESSION S. 2381 

To provide for earned adjustment to reward work, reunify families, establish 

a temporary worker program that protects United States and foreign 

workers, and strengthen national security under the immigration laws 

of the United States. 

IN THE SENATE OF THE UNITED STATES 

MAY 4, 2004 

Mr. KENNEDY (for himself, Mr. FEINGOLD, and Mrs. CLINTON) introduced 

the following bill; which was read twice and referred to the Committee 

on the Judiciary 

A BILL 

To provide for earned adjustment to reward work, reunify 

families, establish a temporary worker program that protects United States and foreign workers, and strengthen 

national security under the immigration laws of the 

United States. 

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. 

4 This Act may be cited as— 

5 (1) the ‘‘Safe, Orderly, Legal Visas and En6 forcement Act of 2004’’; or 

7 (2) the ‘‘S.O.L.V.E. Act of 2004’’. 
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•S 2381 IS 

1 TITLE I—EARNED ADJUSTMENT 

2 PROGRAM 

3 SEC. 101. ADJUSTMENT OF STATUS. 

4 (a) PRINCIPAL ALIENS.—Notwithstanding any other 

5 provision of law, the Secretary of Homeland Security shall 

6 adjust to the status of an alien lawfully admitted for per7 manent residence an alien who satisfies the following re8 quirements: 

9 (1) APPLICATION.—The alien shall file an ap10 plication establishing eligibility for adjustment of 

11 status and pay the requisite filing fee under section 

12 115, not later than 2 years after the date of the 

13 issuance of final regulations implementing this title. 

14 (2) CONTINUOUS PHYSICAL PRESENCE.— 

15 (A) IN GENERAL.—The alien shall estab16 lish that the alien— 

17 (i) was physically present in the 

18 United States, lawfully or unlawfully, for 

19 at least 5 years preceding the date on 

20 which this Act was introduced; 

21 (ii) on such date, was not legally 

22 present in the United States pursuant to 

23 any classification set forth in section 

24 101(a)(15) of the Immigration and Nation-
3 

•S 2381 IS 

1 ality Act (with the exception of subpara2 graph (V) of such section); and 

3 (iii) has not departed from the United 

4 States except pursuant to the following pa5 rameters: 

6 (I) Single departures of 90 days 

7 or less, and multiple departures total8 ing 180 days or less, will not be con9 sidered to interrupt continuous phys10 ical presence for purposes of this sec11 tion. 

12 (II) The burden will be on the 

13 alien to demonstrate that all single 

14 departures exceeding 90 days, and 

15 multiple departures totaling more 

16 than 180 days, were due to excep17 tional circumstances. 

18 (III) Departures pursuant to vol19 untary departure shall not in them20 selves be considered to interrupt the 

21 period of physical presence. 

22 (B) CONSTRUCTION.—A person who has 

23 violated any conditions of his visa shall not be 

24 considered to be legally present for purposes of 

25 subparagraph (A). 
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1 (3) ADMISSIBLE UNDER IMMIGRATION LAWS.— 

2 In establishing admissibility to the United States, 

3 the alien shall establish that the alien is not inad4 missible under section 212(a) of the Immigration 

5 and Nationality Act (8 U.S.C. 1182(a)), except for 

6 any provision of that section that is not applicable 

7 or waived under section 102. 

8 (4) EMPLOYMENT IN UNITED STATES.— 

9 (A) IN GENERAL.—The alien shall have 

10 been employed, including self-employment, law11 fully or unlawfully, in the United States, in the 

12 aggregate, for at least 2 years of the 5 years 

13 immediately preceding the date on which this 

14 Act was introduced. For purposes of this sec15 tion, either 1,800 hours or 260 days shall con16 stitute 2 years of employment. An alien shall 

17 not be required to complete such employment 

18 requirements with the same employer. 

19 (B) EXCEPTION.—Subparagraph (A) shall 

20 not apply to an individual who is under 21 

21 years of age on the date on which the applica22 tion was filed under this section. Subparagraph 

23 (A) also shall not apply to an individual who 

24 has not been employed as a result of pregnancy, 

25 or because of primary caretaker responsibilities 
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•S 2381 IS 

1 of a child or other person who requires super2 vision or is unable to take care of him or herself. 

3 (C) DISABILITY.—In determining whether 

4 an alien has met the requirements of (A), the 

5 Secretary of Homeland Security shall credit the 

6 alien with any workdays lost because the alien 

7 was unable to work due to injury or disease 

8 arising out of and in the course of the alien’s 

9 employment, if the alien can establish such dis10 abling injury or disease through medical 

11 records. 

12 (D) EDUCATIONAL ALTERNATIVE.—School 

13 attendance by an alien after the age of 18 years 

14 of each year of high school, or postsecondary 

15 education (at least half-time) shall constitute 

16 one year of employment for purposes of this 

17 section. 

18 (E) EVIDENCE OF EMPLOYMENT.— 

19 (i) CONCLUSIVE DOCUMENTS.—For 

20 purposes of satisfying the requirement in 

21 subparagraph (A), the alien shall submit at 

22 least 1 of the following documents for each 

23 period of employment, which shall be con24 sidered conclusive evidence of such employ25 ment: 
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•S 2381 IS 

1 (I) Records maintained by the 

2 Social Security Administration. 

3 (II) Records maintained by an 

4 employer, such as pay stubs, time 

5 sheets, or employment work 

6 verification. 

7 (III) Records maintained by the 

8 Internal Revenue Service. 

9 (IV) Records maintained by a 

10 labor union, day labor center, or an 

11 organization that assists workers in 

12 matters related to employment. 

13 (V) Records maintained by any 

14 other government agency, such as 

15 worker compensation records, dis16 ability records, or business licensing 

17 records. 

18 (ii) OTHER DOCUMENTS.—Aliens un19 able to submit a document described in 

20 clause (i) shall submit at least 2 other 

21 types of reliable documents, including 

22 sworn declarations for each period of em23 ployment to satisfy the requirement in sub24 paragraph (A). Such documents may in25 clude: 
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•S 2381 IS 

1 (I) Bank records. 

2 (II) Business records. 

3 (III) Affidavits from nonrelatives 

4 who have direct knowledge of the ap5 plicant’s work. 

6 (IV) Remittance records. 

7 (V) Business correspondence. 

8 (iii) INTENT OF CONGRESS.—It is the 

9 intent of Congress that the requirement in 

10 subparagraph (A) be interpreted and im11 plemented in a manner that recognizes and 

12 takes into account the difficulties encoun13 tered by aliens in obtaining evidence of em14 ployment due to the undocumented status 

15 of the alien. 

16 (F) BURDEN OF PROOF.—An alien apply17 ing for adjustment of status under this section 

18 has the burden of proving by a preponderance 

19 of the evidence that the alien has worked the 

20 requisite time period (as required under sub21 paragraph (A)). An alien may meet such bur22 den of proof by producing sufficient evidence to 

23 show the extent of that employment as a matter 

24 of just and reasonable inference. In such a case, 

25 the burden then shifts to the Secretary of 
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•S 2381 IS 

1 Homeland Security to disprove the alien’s evi2 dence with a showing which negates the reason3 ableness of the inference to be drawn from the 

4 evidence. 

5 (5) PAYMENT OF INCOME TAXES.—Not later 

6 than the date on which status is adjusted under this 

7 section, the alien shall establish the payment of all 

8 Federal income taxes owed for employment during 

9 the period of employment required under paragraph 

10 (4)(A). The alien may satisfy such requirement by 

11 establishing that— 

12 (A) no such tax liability exists; 

13 (B) all outstanding liabilities have been 

14 met; or 

15 (C) the alien has entered into an agree16 ment for payment of all outstanding liabilities 

17 with the Internal Revenue Service (IRS). 

18 (D) The IRS shall be directed to cooperate 

19 in providing documentation to the alien pursu20 ant to this title. 

21 (6) BASIC CITIZENSHIP SKILLS.— 

22 (A) IN GENERAL.—Except as provided in 

23 subparagraph (B), the alien shall establish that 

24 the alien meets the requirements of section 

25 312(a) of the Immigration and Nationality Act 
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•S 2381 IS 

1 (8 U.S.C. 1423(a)) (relating to minimal under2 standing of ordinary English and a knowledge 

3 and understanding of the history and govern4 ment of the United States), or is pursuing, or 

5 is enrolled or registered to pursue such knowl6 edge and understanding of English and civics. 

7 (B) EXCEPTIONS.—The requirements of 

8 subparagraph (A) shall not apply to any person 

9 who is 55 years of age or older or who is unable 

10 to comply with those requirements because of a 

11 physical or developmental disability or mental 

12 impairment. 

13 (C) AUTHORIZATION OF APPROPRIA14 TIONS.—There are authorized to be appro15 priated such sums for English and civics classes 

16 as are necessary to carry out this section. 

17 (7) SECURITY AND LAW ENFORCEMENT CLEAR18 ANCES.—The alien shall submit fingerprints in ac19 cordance with procedures established by the Sec20 retary of Homeland Security. Such fingerprints shall 

21 be submitted to relevant Federal agencies to be 

22 checked against existing databases for information 

23 relating to criminal, national security, or other law 

24 enforcement actions that would render the alien in25 eligible for adjustment of status under this section. 
10 

•S 2381 IS 

1 The relevant Federal agencies shall work to ensure 

2 that such clearances are completed as expeditiously 

3 as possible. An appeal of a denial by the Secretary 

4 of Homeland Security shall be processed through the 

5 Administrative Appeals Office of the Bureau of Citi6 zenship and Immigration Services. 

7 (8) MILITARY SELECTIVE SERVICE.—The alien 

8 shall establish that if the alien is within the age pe9 riod required under the Military Selective Service 

10 Act (50 U.S.C. App. 451 et seq.), that such alien 

11 has registered under that Act. 

12 (b) SPOUSES AND CHILDREN.— 

13 (1) IN GENERAL.— 

14 (A) ADJUSTMENT OF STATUS.—Notwith15 standing any other provision of law, the Sec16 retary of Homeland Security shall, if otherwise 

17 eligible under paragraph (2), adjust the status 

18 to that of a lawful permanent resident for, or 

19 provide an immigrant visa to— 

20 (i) the spouse or child, defined as a 

21 person who was under 21 years of age on 

22 the date of the enactment of this Act, of 

23 an alien who adjusts status to that of a 

24 permanent resident under subsection (a); or 
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•S 2381 IS 

1 (ii) an alien who, within 5 years pre2 ceding such date, was the spouse or child 

3 of an alien who adjusts status or is eligible 

4 to adjust status to that of a permanent 

5 resident under subsection (a), if— 

6 (I) the termination of the quali7 fying relationship was connected to 

8 domestic violence; and 

9 (II) the spouse or child has been 

10 battered or subjected to extreme cru11 elty by the spouse or parent who ad12 justs status to that of a permanent 

13 resident under subsection (a). 

14 (B) APPLICATION OF OTHER LAW.—In 

15 acting on applications filed under this sub16 section with respect to aliens who have been 

17 battered or subjected to extreme cruelty, the 

18 Secretary of Homeland Security shall apply the 

19 provisions of section 204(a)(1)(J) of the Immi20 gration and Nationality Act (8 U.S.C. 

21 1154(a)(1)(J)) and the protections, prohibi22 tions, and penalties under section 384 of the Il23 legal Immigration Reform and Immigrant Re24 sponsibility Act of 1996 (8 U.S.C. 1367). 
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1 (2) WAIVER OF INADMISSIBILITY.—In estab2 lishing admissibility to the United States, the spouse 

3 or child described in paragraph (1) shall establish 

4 that they are not inadmissible under section 212(a) 

5 of the Immigration and Nationality Act (8 U.S.C. 

6 1182(a)), except for any provision of that section 

7 that is not applicable or waived under section 102. 

8 (3) SECURITY AND LAW ENFORCEMENT CLEAR9 ANCE.—The spouse or child, if that child is 14 years 

10 of age or older, described in paragraph (1) shall sub11 mit fingerprints in accordance with procedures es12 tablished by the Secretary of Homeland Security. 

13 Such fingerprints shall be submitted to relevant 

14 Federal agencies to be checked against existing 

15 databases for information relating to criminal, na16 tional security, or other law enforcement actions 

17 that would render the alien ineligible for adjustment 

18 of status under this section. The relevant Federal 

19 agencies shall work to ensure that such clearances 

20 are completed as expeditiously as possible. An appeal 

21 of a denial by the Secretary of Homeland Security 

22 shall be processed through the Administrative Ap23 peals Office of the Bureau of Citizenship and Immi24 gration Services. 
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•S 2381 IS 

1 (c) NONAPPLICABILITY OF NUMERICAL LIMITA2 TIONS.—When an alien is granted lawful permanent resi3 dent status under this section, the number of immigrant 

4 visas authorized to be issued under any provision of the 

5 Immigration and Nationality Act (8 U.S.C. 1101 et seq.) 

6 shall not be reduced. 

7 SEC. 102. GROUNDS OF INADMISSIBILITY. 

8 In the determination of an alien’s admissibility under 

9 subsections (a)(3) or (b)(2) of section 101, the following 

10 shall apply: 

11 (1) GROUNDS THAT MAY NOT BE WAIVED.— 

12 The following provisions of section 212(a) of the Im13 migration and Nationality Act (8 U.S.C. 1182(a)) 

14 may not be waived by the Secretary of Homeland 

15 Security or the Secretary of State under paragraph 

16 (3)(A): 

17 (A) Subparagraphs (A), (B), (C), (E), (G), 

18 (H), and (I) of paragraph (2) of such section 

19 (relating to criminals). 

20 (B) Paragraph (3) of such section (relating 

21 to security and related grounds). 

22 (C) Subparagraphs (A) and (C) of para23 graph (10) of such section (relating to polyg24 amists and child abductors). 
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•S 2381 IS 

1 (2) GROUNDS OF INADMISSIBILITY NOT APPLI2 CABLE.—The provisions of paragraphs (4), (5), 

3 (6)(A), (6)(B), (6)(C), (6)(F), (6)(G), (7), (9), and 

4 (10)(B) of section 212(a) of the Immigration and 

5 Nationality Act (8 U.S.C. 1182(a)) shall not apply. 

6 (3) WAIVER OF OTHER GROUNDS.— 

7 (A) IN GENERAL.—Except as provided in 

8 paragraph (1), the Secretary of Homeland Se9 curity or the Secretary of State may waive any 

10 provision of section 212(a) of the Immigration 

11 and Nationality Act (8 U.S.C. 1182(a)) in the 

12 case of individual aliens for humanitarian pur13 poses, to ensure family unity, or when it is oth14 erwise in the public interest. 

15 (B) CONSTRUCTION.—Nothing in this 

16 paragraph shall be construed as affecting the 

17 authority of the Secretary of Homeland Secu18 rity or the Secretary of State other than under 

19 this paragraph to waive the provisions of sec20 tion 212(a) of the Immigration and Nationality 

21 Act (8 U.S.C. 1182(a)). 

22 (4) SPECIAL RULE FOR INDIVIDUALS WHERE

23 THERE IS NO COMMERCIAL PURPOSE.—An alien is 

24 not ineligible for adjustment of status under section 

25 101 by reason of a ground of inadmissibility under 
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•S 2381 IS 

1 section 212(a)(6)(E) of the Immigration and Na2 tionality Act (8 U.S.C. 1182(a)(6)(E)) if the alien 

3 establishes that the action referred to in that section 

4 was taken for humanitarian purposes, to ensure 

5 family unity, or was otherwise in the public interest. 

6 (5) APPLICABILITY OF OTHER PROVISIONS.— 

7 Section 241(a)(5) of the Immigration and Nation8 ality Act (8 U.S.C. 1231(a)(5)) and section 240B(d) 

9 of that Act (8 U.S.C. 1229c(d)) shall not apply with 

10 respect to an alien who is applying for adjustment 

11 of status under section 101. 

12 SEC. 103. TREATMENT OF APPLICANTS. 

13 (a) IN GENERAL.—An alien who files an application 

14 under section 101 for adjustment of status, including a 

15 spouse or child who files for adjustment of status under 

16 section 101(b)— 

17 (1) shall be granted employment authorization 

18 pending final adjudication of the alien’s application 

19 for adjustment of status; 

20 (2) shall be granted permission to travel abroad 

21 pursuant to regulation pending final adjudication of 

22 alien’s application for adjustment of status; 

23 (3) shall not be detained, determined inadmis24 sible or deportable, or removed pending final adju25 dication of the alien’s application for adjustment of 
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1 status, unless the alien commits an act which ren2 ders the alien ineligible for such adjustment of sta3 tus; and 

4 (4) shall not be considered an unauthorized 

5 alien (as defined in section 274A(h)(3) of the Immi6 gration and Nationality Act (8 U.S.C. 1324a(h)(3))) 

7 until such time as employment authorization under 

8 paragraph (1) is denied. 

9 (b) SECURITY AND LAW ENFORCEMENT CLEAR10 ANCE.—Before an alien is granted employment authoriza11 tion or permission to travel under subsection (a), the alien 

12 shall be required to undergo a name check against existing 

13 databases for information relating to criminal, national se14 curity, or other law enforcement actions. The relevant 

15 Federal agencies shall work to ensure that such name 

16 checks are completed not later than 90 days after the date 

17 on which the name check is requested. 

18 (c) BIOMETRIC DOCUMENTS.—The Secretary of 

19 Homeland Security shall issue to each alien described in 

20 paragraph (a) a machine-readable tamper-resistant docu21 ment that uses biometric identifiers consistent with the re22 quirements of section 303 of the Enhanced Border Secu23 rity Visa Reform Act, Public Law 107–173, and rep24 resents the benefits and status set forth therein. 
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1 (d) TERMINATION OF PROCEEDINGS.—An alien in 

2 removal proceedings who establishes prima facie eligibility 

3 for adjustment of status under section 101 shall be enti4 tled to a termination of immigration proceedings pending 

5 the outcome of the alien’s application, unless the pro6 ceedings are based on criminal or national security 

7 grounds. 

8 SEC. 104. APPREHENSION BEFORE APPLICATION PERIOD. 

9 The Secretary of Homeland Security shall provide 

10 that, in the case of an alien who is apprehended before 

11 the beginning of the application period described in section 

12 101 and who can establish prima facie eligibility to have 

13 the alien’s status adjusted under that section (but for the 

14 fact that the alien may not apply for such adjustment until 

15 the beginning of such period), until the alien has had the 

16 opportunity during the first 180 days of the application 

17 period to complete the filing of an application for adjust18 ment, the alien— 

19 (1) may not be detained solely for a violation of 

20 immigration status as described in section 102(2); 

21 (2) may not be removed from the United 

22 States; and 

23 (3) shall be granted employment authorization 

24 after undergoing all clearances determined appro25 priate by the Secretary of Homeland Security. 
18 

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1 SEC. 105. CONFIDENTIALITY OF INFORMATION. 

2 (a) IN GENERAL.—Except as otherwise provided in 

3 this title, no Federal agency or bureau, nor any officer 

4 or employee of such agency or bureau, may— 

5 (1) use the information furnished by the appli6 cant pursuant to an application filed under sub7 section (a) or (b) of section 101 for any purpose 

8 other than to make a determination on the applica9 tion; 

10 (2) make any publication through which the in11 formation furnished by any particular applicant can 

12 be identified; or 

13 (3) permit anyone other than the sworn officers 

14 and employees of such agency or bureau or, with re15 spect to applications filed with a recognized organi16 zation under section 112, that recognized organiza17 tion, to examine individual applications. 

18 (b) REQUIRED DISCLOSURES.—Notwithstanding 

19 subsections (b) and (c) of section 112, the Secretary of 

20 Homeland Security and the Secretary of State shall pro21 vide the information furnished pursuant to an application 

22 filed under subsection (a) or (b) of section 101, and any 

23 other information derived from such furnished informa24 tion, to a duly recognized law enforcement entity in con25 nection with a criminal investigation or prosecution or a 

26 national security investigation or prosecution, in each in-
19 

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1 stance about an individual suspect or group of suspects, 

2 when such information is requested in writing by such en3 tity. 

4 (c) CRIMINAL PENALTY.—Any person who knowingly 

5 uses, publishes, or permits information to be examined in 

6 violation of this section shall be fined not more than 

7 $10,000. 

8 SEC. 106. PENALTIES FOR FALSE STATEMENTS IN APPLICA9 TIONS. 

10 (a) CRIMINAL PENALTY.— 

11 (1) VIOLATION.—It shall be unlawful for any 

12 person— 

13 (A) to file or assist in filing an application 

14 for adjustment of status under this title and 

15 knowingly and willfully falsify, conceal, or cover 

16 up a material fact or make any false, fictitious, 

17 or fraudulent statements or representations, or 

18 make or use any false writing or document 

19 knowing the same to contain any false, fictitious, 

20 or fraudulent statement or entry; or 

21 (B) to create or supply a false writing or 

22 document for use in making such an applica23 tion. 

24 (2) PENALTY.—Any person who violates para25 graph (1) shall be fined in accordance with title 18, 
20 

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1 United States Code, imprisoned not more than 5 

2 years, or both. 

3 (b) INADMISSIBILITY.—An alien who is convicted of 

4 a crime under subsection (a) shall be considered to be in5 admissible to the United States on the ground described 

6 in section 212(a)(6)(C)(i) of the Immigration and Nation7 ality Act (8 U.S.C. 1182(a)(6)(C)(i)). 

8 (c) EXCEPTION.—Notwithstanding subsections (a) 

9 and (b), any alien or other entity (including an employer 

10 or union) that submits an employment record that con11 tains incorrect data that the alien used in order to obtain 

12 such employment, shall not, on that ground, be determined 

13 to have violated this section. 

14 SEC. 107. INELIGIBILITY FOR PUBLIC BENEFITS. 

15 An alien whose status has been adjusted in accord16 ance with section 101 shall be ineligible for any Federal 

17 means-tested public benefit as defined for purposes of sec18 tion 403 of the Personal Responsibility and Work Oppor19 tunity Reconciliation Act of 1996 (8 U.S.C. 1613) unless 

20 the alien meets the alien eligibility criteria for such benefit 

21 provided under title IV of such Act (8 U.S.C. 1601 et 

22 seq.). 
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1 SEC. 108. RELATIONSHIPS OF APPLICATION TO CERTAIN 

2 ORDERS. 

3 (a) IN GENERAL.—An alien who is present in the 

4 United States and has been ordered excluded, deported, 

5 removed, or to depart voluntarily from the United States 

6 under any provision of the Immigration and Nationality 

7 Act (8 U.S.C. 1101 et seq.) may, notwithstanding such 

8 order, apply for adjustment of status under section 101. 

9 Such an alien shall not be required, as a condition of sub10 mitting or granting such application, to file a separate mo11 tion to reopen, reconsider, or vacate the exclusion, depor12 tation, removal or voluntary departure order. If the Sec13 retary of Homeland Security grants the application, the 

14 Secretary of Homeland Security shall cancel such order. 

15 If the Secretary of Homeland Security renders a final ad16 ministrative decision to deny the application, such order 

17 shall be effective and enforceable 90 days after the date 

18 of the denial. 

19 (b) STAY OF REMOVAL.—The filing of an application 

20 described in subsection (a) shall stay the removal of the 

21 alien pending final adjudication of the application. Noth22 ing in this section affects review and stays of removal 

23 under section 110. 
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1 SEC. 109. APPLICATION OF OTHER IMMIGRATION AND NA2 TIONALITY ACT PROVISIONS. 

3 Nothing in this title shall preclude an alien who may 

4 be eligible to be granted adjustment of status under sec5 tion 101 from seeking such status under any other provi6 sion of law for which the alien may be eligible. 

7 SEC. 110. ADMINISTRATIVE AND JUDICIAL REVIEW. 

8 (a) IN GENERAL.—Except as provided in this section, 

9 there shall be no administrative or judicial review of a de10 termination respecting an application for adjustment of 

11 status under section 101. 

12 (b) ADMINISTRATIVE REVIEW.— 

13 (1) SINGLE LEVEL OF ADMINISTRATIVE APPEL14 LATE REVIEW.—The Secretary of Homeland Secu15 rity shall establish an appellate authority within the 

16 Bureau of Citizenship and Immigration Services to 

17 provide for a single level of administrative appellate 

18 review of a determination respecting an application 

19 for adjustment of status under section 101. 

20 (2) STANDARD FOR REVIEW.—Administrative 

21 appellate review referred to in paragraph (1) shall be 

22 based solely upon the administrative record estab23 lished at the time of the determination on the appli24 cation and upon the presentation of additional or 

25 newly discovered evidence during the time of the 

26 pending appeal. 
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•S 2381 IS 

1 (c) JUDICIAL REVIEW.— 

2 (1) DIRECT REVIEW.—A person whose applica3 tion for adjustment of status under section 101 is 

4 denied after administrative appellate review under 

5 subsection (b) may seek review of such denial, in ac6 cordance with chapter 7 of title 5, United States 

7 Code, before the United States district court for the 

8 district in which the person resides. 

9 (2) REVIEW AFTER REMOVAL PROCEEDINGS.— 

10 There shall be judicial review in the Federal courts 

11 of appeal of the denial of an application for adjust12 ment of status under section 101 in conjunction with 

13 judicial review of an order of removal, deportation, 

14 or exclusion, but only if the validity of the denial has 

15 not been upheld in a prior judicial proceeding under 

16 paragraph (1). Notwithstanding any other provision 

17 of law, the standard for review of such a denial shall 

18 be governed by paragraph (3). 

19 (3) STANDARD FOR JUDICIAL REVIEW.—Judi20 cial review of a denial of an application under this 

21 title shall be based solely upon the administrative 

22 record established at the time of the review. The 

23 findings of fact and other determinations contained 

24 in the record shall be conclusive unless the applicant 

25 can establish abuse of discretion or that the findings 
24 

•S 2381 IS 

1 are directly contrary to clear and convincing facts 

2 contained in the record, considered as a whole. 

3 (4) JURISDICTION OF COURTS.—Notwith4 standing any other provision of law, the district 

5 courts of the United States shall have jurisdiction 

6 over any cause or claim arising from a pattern or 

7 practice of the Secretary of Homeland Security in 

8 the operation or implementation of this title that is 

9 arbitrary, capricious, or otherwise contrary to law, 

10 and may order any appropriate relief. The district 

11 courts may order any appropriate relief in accord12 ance with the preceding sentence without regard to 

13 exhaustion, ripeness, or other standing requirements, 

14 if the court determines that resolution of such cause 

15 or claim will serve judicial and administrative effi16 ciency or that a remedy would otherwise not be rea17 sonably available or practicable. 

18 (d) STAY OF REMOVAL.—Aliens seeking administra19 tive or judicial review under this section shall not be re20 moved from the United States until a final decision is ren21 dered establishing ineligibility under this title. 

22 SEC. 111. DISSEMINATION OF INFORMATION ON ADJUST23 MENT PROGRAM. 

24 The Secretary of Homeland Security, in cooperation 

25 with recognized organizations described in section 112 
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•S 2381 IS 

1 shall broadly disseminate information respecting adjust2 ment of status under this title and the requirements to 

3 be satisfied to obtain such status. The Secretary of Home4 land Security shall also disseminate information to em5 ployers and labor organizations to advise them of the 

6 rights and protections available to them and to workers 

7 who file applications under this title. Such information 

8 shall be broadly disseminated, in the top 10 languages spo9 ken by the aliens expected to qualify for adjustment of 

10 status under this title, including to television, radio, and 

11 print media such aliens would have access to. 

12 SEC. 112. ENTITIES QUALIFIED TO RECEIVE APPLICATIONS. 

13 (a) IN GENERAL.—For purposes of assisting in the 

14 adjustment of status program provided under this title, 

15 the Secretary of Homeland Security shall authorize orga16 nizations recognized by the Board of Immigration Appeals 

17 to receive applications filed under section 101. 

18 (b) TREATMENT OF APPLICATIONS BY RECOGNIZED

19 ORGANIZATIONS.—Each recognized organization shall 

20 agree to forward all applications filed with the entity to 

21 the Secretary of Homeland Security, but only if the appli22 cant has consented to such forwarding in writing. 

23 (c) LIMITATION ON ACCESS TO INFORMATION.—Files 

24 and records of recognized organizations relating to an 

25 alien’s seeking assistance or information with respect to 
26 

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1 filing an application under this title are confidential and 

2 no government agency shall have access to such files or 

3 records without the consent of the alien or pursuant to 

4 a legally recognized subpoena. 

5 SEC. 113. CORRECTION OF SOCIAL SECURITY RECORDS. 

6 Section 208(d)(1) of the Social Security Act (42 

7 U.S.C. 408(d)(1)) is amended— 

8 (1) in subparagraph (B), by striking ‘‘or’’ at 

9 the end of clause (ii); 

10 (2) in subparagraph (C), by inserting ‘‘or’’ at 

11 the end; 

12 (3) by inserting after subparagraph (C) the fol13 lowing: 

14 ‘‘(D) whose status is adjusted to that of 

15 lawful permanent resident under title I of the 

16 S.O.L.V.E. Act of 2004,’’; and 

17 (4) by striking ‘‘1990.’’ and inserting ‘‘1990, or 

18 in the case of an alien described in subparagraph 

19 (D), if such conduct is alleged to have occurred prior 

20 to the date on which the alien became lawfully ad21 mitted for temporary residence.’’. 

22 SEC. 114. EMPLOYER PROTECTIONS. 

23 (a) IMMIGRATION STATUS OF ALIEN.—Employers of 

24 aliens applying for adjustment of status under this title 
27 

•S 2381 IS 

1 shall not be subject to civil and criminal tax liability relat2 ing directly to the employment of such alien. 

3 (b) PROVISION OF EMPLOYMENT RECORDS.—Em4 ployers that provide unauthorized aliens with copies of em5 ployment records or other evidence of employment pursu6 ant to an application for adjustment of status under this 

7 title or any other application or petition pursuant to other 

8 provisions of the immigration laws, shall not be subject 

9 to civil and criminal liability pursuant to section 274A of 

10 the Immigration and Nationality Act (8 U.S.C. 1324a) for 

11 employing such unauthorized aliens. 

12 (c) APPLICABILITY OF OTHER LAW.—Nothing in this 

13 section shall be used to shield an employer from liability 

14 pursuant to section 274B of the Immigration and Nation15 ality Act (8 U.S.C. 1324b) or any other labor and employ16 ment law provisions. 

17 SEC. 115. AUTHORIZATION OF FUNDS; FEES. 

18 (a) AUTHORIZATION OF FUNDS.— 

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

20 appropriated to the Secretary of Homeland Security 

21 such sums as may be necessary to— 

22 (A) commence the processing of applica23 tions filed under this title and title II of this 

24 Act; 
28 

•S 2381 IS 

1 (B) reimburse or make grants to qualified 

2 designated entities described in section 113 to 

3 carry out the functions described in sections 

4 112 and 113; and 

5 (C) otherwise carry out this title. 

6 (2) PERIOD OF AUTHORIZATION.—Funds ap7 propriated pursuant to this subsection shall be avail8 able until expended. 

9 (3) SENSE OF CONGRESS.—It is the sense of 

10 Congress that funds authorized under paragraph 

11 (1)(A) should be directly appropriated so as to facili12 tate the orderly and timely commencement of the 

13 processing of applications filed under this title. 

14 (b) APPLICATION FEE.—An alien who files an appli15 cation under this title shall pay an application fee, set by 

16 the Secretary of Homeland Security, at a level equal to 

17 the full cost of adjudicating such applications. 

18 (c) ADDITIONAL AMOUNTS OWED.—Prior to the ad19 judication of an application for adjustment of status filed 

20 under this title, the alien shall pay an amount equaling 

21 $500, but such amount shall not be required from an alien 

22 under the age of 21. 

23 (d) USE OF AMOUNTS COLLECTED.—The Secretary 

24 of Homeland Security shall deposit payments received 

25 under this section in the Immigration Examinations Fee 
29 

•S 2381 IS 

1 Account, and these payments in such account shall be 

2 available, without fiscal year limitation, to cover adminis3 trative and other expenses incurred in connection with the 

4 review of applications filed under this title and in title II 

5 of this Act. Any remaining funds not used in accordance 

6 with this subsection shall be used to process other applica7 tions for adjustment of status or naturalization. 

8 SEC. 116. ALIENS WHO DO NOT SATISFY THE REQUIRE9 MENTS FOR EARNED ADJUSTMENT OF STA10 TUS. 

11 (a) ELIGIBILITY FOR TRANSITIONAL STATUS.—Any 

12 alien who is physically present in the United States, 

13 whether lawfully or unlawfully, on the date of introduction 

14 of this Act, who on such date was not legally present pur15 suant to any classification set forth in section 101(a)(15) 

16 of the Immigration and Nationality Act (8 U.S.C. 

17 1101(a)(15)) (with the exception of subparagraph (V) of 

18 such section), and who cannot satisfy the requirements of 

19 subparagraph (2) or (4) of section 101(a) of this Act shall 

20 be eligible— 

21 (1) to apply for a transitional status without 

22 having to depart the United States, which shall have 

23 a duration period of not more than 5 years from the 

24 date of issuance of the transitional status; and 
30 

•S 2381 IS 

1 (2) be granted employment authorization and 

2 permission to travel abroad for a period of time co3 extensive with the validity period of the transitional 

4 status. 

5 (b) SECURITY AND LAW ENFORCEMENT CLEAR6 ANCE.—Before an alien described in subsection (a) is 

7 granted employment authorization or permission to travel 

8 abroad, such alien shall be required to undergo a name 

9 check against existing databases for information relating 

10 to criminal, security, and other law enforcement actions. 

11 The relevant Federal agencies shall work to ensure that 

12 such name checks are completed as expeditiously as pos13 sible. 

14 (c) BIOMETRIC DOCUMENTS.—The Secretary of 

15 Homeland Security shall issue to each alien described in 

16 subsection (a) a machine-readable, tamper-resistant docu17 ment that uses biometric identifiers consistent with the re18 quirements of section 303 of the Enhanced Border Secu19 rity Visa Reform Act, Public Law 107–173, and rep20 resents the benefits and status set forth therein. 

21 (d) ELIGIBILITY FOR ADJUSTMENT OF STATUS.—An 

22 alien who is granted employment authorization under sub23 section (a) and is lawfully employed in the United States 

24 in the aggregate, for at least 2 years of the 5 years imme25 diately following the date on which this Act was intro-
31 

•S 2381 IS 

1 duced, shall be eligible for adjustment of status to that 

2 of a lawful permanent resident. For purposes of this sec3 tion, either 1,800 hours or 260 days shall constitute 2 

4 years of employment. An alien shall not be required to 

5 complete such employment with the same employer. Sec6 tion 101(a)(4)(C) shall apply to such an alien for purposes 

7 of satisfying the lawful employment requirement under 

8 this subsection. 

9 (e) ADJUSTMENT OF STATUS.—An alien who meets 

10 the requirements of subsection (d) and applies for adjust11 ment of status to that of a lawful permanent resident shall 

12 be required to comply with the requirements of paragraphs 

13 (3), (5), (6), (7), and (8) of section 101(a). In adjudi14 cating such an application, the Secretary of Homeland Se15 curity shall determine the admissibility of the alien in ac16 cordance with section 102. 

17 (f) SPOUSES AND CHILDREN.— 

18 (1) ADJUSTMENT OF STATUS.—Notwith19 standing any other provision of law, the Secretary of 

20 Homeland Security shall, if otherwise eligible under 

21 section 102, adjust the status to that of a lawful 

22 permanent resident or provide an immigrant visa 

23 to— 

24 (A) the spouse or child of an alien who ad25 justs status or is eligible to adjust status to 
32 

•S 2381 IS 

1 that of a lawful permanent resident under sub2 section (a); or 

3 (B) an alien who was the spouse or child 

4 of an alien who adjusts status to that of a law5 ful permanent resident under this section, if— 

6 (i) the termination of the qualifying 

7 relationship was connected to domestic vio8 lence; and 

9 (ii) the spouse or child has been bat10 tered or subjected to extreme cruelty by 

11 the spouse or parent who adjusts status to 

12 that of a lawful permanent resident under 

13 this section. 

14 (2) APPLICATION OF OTHER LAW.—In acting 

15 on applications filed under this section with respect 

16 to aliens who have been battered or subjected to ex17 treme cruelty, the Secretary of Homeland Security 

18 shall apply the provisions of section 204(a)(1)(J) of 

19 the Immigration and Nationality Act (8 U.S.C. 

20 1154(a)(1)(J)) and the protections, prohibitions, and 

21 penalties under section 384 of the Illegal Immigra22 tion Reform and Immigrant Responsibility Act of 

23 1996 (8 U.S.C. 1367). 

24 (g) NONAPPLICABILITY OF NUMERICAL LIMITA25 TIONS.—When an alien is granted adjustment of status 
33 

•S 2381 IS 

1 under this section, the number of immigrant visas author2 ized to be issued under any provision of the Immigration 

3 and Nationality Act (8 U.S.C. 1101 et seq.) shall not be 

4 reduced. 

5 SEC. 117. ELIGIBILITY FOR LEGAL SERVICES. 

6 Section 504(a)(11) of Public Law 104–134 (110 

7 Stat. 1321–53 et seq.) shall not be construed to prevent 

8 a recipient of funds under the Legal Services Corporation 

9 Act (42 U.S.C. 2996 et seq.) from providing legal assist10 ance directly related to an application for adjustment of 

11 status under this title. 

12 SEC. 118. ADJUSTMENT OF STATUS FOR CERTAIN EN13 TRANTS. 

14 (a) EXEMPTION OF CERTAIN CLASS MEMBERS.—Ef15 fective November 6, 1986, subsection (f)(4)(C) of section 

16 245A of the Immigration and Nationality Act (8 U.S.C. 

17 1255a) shall not apply to a class member in Northwest 

18 Immigrant Right Project et al. v. USCIS et al., No. 88– 

19 379 (W.D. Washington) (formerly Immigrant Assistance 

20 Project v. INS). 

21 (b) WAIVER FOR LEGALIZATION APPLICANTS DE22 NIED BECAUSE OF SECTION 245A(g)(2)(B).— 

23 (1) IN GENERAL.—Section 245A(g)(2)(B)(i) of 

24 the Immigration and Nationality Act (8 U.S.C. 

25 1255a(g)(2)(B)(i)) is amended by striking ‘‘and’’ at 
34 

•S 2381 IS 

1 the end and inserting the following: ‘‘except that if 

2 a waiver of inadmissibility is granted pursuant to 

3 subsection (d)(2)(B), then the alien shall be deemed 

4 to have maintained continuous residence in the 

5 United States, and’’. 

6 (2) EFFECTIVE DATE.—The amendment made 

7 by paragraph (1) shall be effective as if included in 

8 the enactment of the Immigration Reform and Con9 trol Act of 1986. 

10 SEC. 119. ISSUANCE OF REGULATIONS. 

11 Not later than 120 days after the date of enactment 

12 of this Act, the Secretary of Homeland Security shall issue 

13 regulations to implement this title. 

14 TITLE II—FAMILY 

15 REUNIFICATION 

16 SEC. 201. TREATMENT OF IMMEDIATE RELATIVES WITH RE17 SPECT TO THE FAMILY IMMIGRATION CAP. 

18 (a) EXEMPTION OF IMMEDIATE RELATIVES FROM

19 FAMILY-SPONSORED IMMIGRANT CAP.—Section 

20 201(c)(1)(A) of the Immigration and Nationality Act (8 

21 U.S.C. 1151(c)(1)(A)) is amended by striking clauses (i), 

22 (ii), and (iii) and inserting the following: 

23 ‘‘(i) 480,000, minus; 

24 ‘‘(ii) the number computed under paragraph 

25 (3); plus 
35 

•S 2381 IS 

1 ‘‘(iii) the number (if any) computed under para2 graph (2).’’. 

3 (b) TECHNICAL AND CONFORMING AMENDMENTS.— 

4 Section 201(c) of the Immigration and Nationality Act (8 

5 U.S.C. 1151(c)) is amended— 

6 (1) by striking paragraph (2); and 

7 (2) by redesignating paragraphs (3), (4), and 

8 (5) as paragraphs (2), (3), and (4), respectively. 

9 SEC. 202. RECLASSIFICATION OF SPOUSES AND MINOR 

10 CHILDREN OF LEGAL PERMANENT RESI11 DENTS AS IMMEDIATE RELATIVES. 

12 (a) IMMEDIATE RELATIVES.—Section 

13 201(b)(2)(A)(i) of the Immigration and Nationality Act 

14 (8 U.S.C. 1151(b)(2)(A)(i)) is amended— 

15 (1) in the first sentence, by inserting ‘‘or the 

16 spouses and children of aliens lawfully admitted for 

17 permanent residence,’’ after ‘‘United States,’’; 

18 (2) in the second sentence— 

19 (A) by inserting ‘‘or lawful permanent resi20 dent’’ after ‘‘citizen’’ each place that term ap21 pears; and 

22 (B) by inserting ‘‘or lawful permanent resi23 dent’s’’ after ‘‘citizen’s’’ each place that term 

24 appears; 
36 

•S 2381 IS 

1 (3) in the third sentence, by inserting ‘‘or the 

2 lawful permanent resident loses lawful permanent 

3 resident status’’ after ‘‘United States citizenship’’; 

4 and 

5 (4) by adding at the end the following: ‘‘A 

6 spouse or child, as defined in subparagraph (A), (B), 

7 (C), (D), or (E) of section 101(b)(1) shall be enti8 tled to the same status, and the same order of con9 sideration provided in the respective subsection, if 

10 accompanying or following to join the spouse or par11 ent. The same treatment shall apply to parents of 

12 citizens of the United States being entitled to the 

13 same status, and the same order of consideration 

14 provided in the respective subsection, if accom15 panying or following to join their daughter or son.’’. 

16 (b) ALLOCATION OF IMMIGRANT VISAS.—Section 

17 203(a) of the Immigration and Nationality Act (8 U.S.C. 

18 1153(a)) is amended— 

19 (1) in paragraph (1), by striking ‘‘23,400’’ and 

20 inserting ‘‘127,200’’; 

21 (2) by striking paragraph (2) and inserting the 

22 following: 

23 ‘‘(2) UNMARRIED SONS AND UNMARRIED

24 DAUGHTERS OF PERMANENT RESIDENT ALIENS.— 

25 Qualified immigrants who are the unmarried sons or 
37 

•S 2381 IS 

1 unmarried daughters (but are not the children) of 

2 an alien lawfully admitted for permanent residence 

3 shall be allocated visas in a number not to exceed 

4 80,640, plus any visas not required for the class 

5 specified in paragraph (1).’’; 

6 (3) in paragraph (3), by striking ‘‘23,400’’ and 

7 inserting ‘‘80,640’’; and 

8 (4) in paragraph (4), by striking ‘‘65,000’’ and 

9 inserting ‘‘191,520’’. 

10 (c) TECHNICAL AND CONFORMING AMENDMENTS.— 

11 (1) RULES FOR DETERMINING WHETHER CER12 TAIN ALIENS ARE IMMEDIATE RELATIVES.—Section 

13 201(f) of the Immigration and Nationality Act (8 

14 U.S.C. 1151(f)) is amended— 

15 (A) in paragraph (1), by striking ‘‘para16 graphs (2) and (3),’’ and inserting ‘‘paragraph 

17 (2),’’; 

18 (B) by striking paragraph (2); and 

19 (C) by redesignating paragraph (3) as 

20 paragraph (2). 

21 (2) NUMERICAL LIMITATION TO ANY SINGLE

22 FOREIGN STATE.—Section 202 of the Immigration 

23 and Nationality Act (8 U.S.C. 1152) is amended— 

24 (A) in subsection (a)(4)— 
38 

•S 2381 IS 

1 (i) by striking subparagraphs (A) and 

2 (B); 

3 (ii) by redesignating subparagraphs 

4 (C) and (D) as subparagraphs (A) and (B) 

5 respectively; and 

6 (iii) in subparagraph (A), as so redes7 ignated, by striking ‘‘section 203(a)(2)(B)’’ 

8 and inserting ‘‘section 203(a)(2)’’; and 

9 (B) in subsection (e), in the flush matter 

10 following paragraph (3), by striking ‘‘, or as 

11 limiting the number of visas that may be issued 

12 under section 203(a)(2)(A) pursuant to sub13 section (a)(4)(A)’’. 

14 (3) ALLOCATION OF IMMIGRATION VISAS.—Sec15 tion 203(h) of the Immigration and Nationality Act 

16 (8 U.S.C. 1153(h)) is amended— 

17 (A) in paragraph (1)— 

18 (i) in the matter preceding subpara19 graph (A), by striking ‘‘subsections 

20 (a)(2)(A) and (d)’’ and inserting ‘‘sub21 section (d)’’; 

22 (ii) in subparagraph (A), by striking 

23 ‘‘becomes available for such alien (or, in 

24 the case of subsection (d), the date on 

25 which an immigrant visa number became 
39 

•S 2381 IS 

1 available for the alien’s parent),’’ and in2 serting ‘‘became available for the alien’s 

3 parent,’’; and 

4 (iii) in subparagraph (B), by striking 

5 ‘‘applicable’’; 

6 (B) in paragraph (2), by striking ‘‘The pe7 tition’’ and all that follows through the period 

8 and inserting ‘‘The petition described in this 

9 paragraph is a petition filed under section 204 

10 for classification of the alien’s parent under 

11 subsection (a), (b), or (c).’’; and 

12 (C) in paragraph (3), by striking ‘‘sub13 sections (a)(2)(A) and (d)’’ and inserting ‘‘sub14 section (d)’’. 

15 (4) PROCEDURE FOR GRANTING IMMIGRANT

16 STATUS.—Section 204 of the Immigration and Na17 tionality Act (8 U.S.C. 1154) is amended— 

18 (A) in subsection (a)(1)— 

19 (i) in subparagraph (A)— 

20 (I) in clause (iii)— 

21 (aa) by inserting ‘‘or legal 

22 permanent resident’’ after ‘‘cit23 izen’’ each place that term ap24 pears; and 
40 

•S 2381 IS 

1 (bb) in subclause 

2 (II)(aa)(CC)(bbb), by inserting 

3 ‘‘or legal permanent resident’’ 

4 after ‘‘citizenship’’; 

5 (II) in clause (iv)— 

6 (aa) by inserting ‘‘or legal 

7 permanent resident’’ after ‘‘cit8 izen’’ each place that term ap9 pears; and 

10 (bb) by inserting ‘‘or legal 

11 permanent resident’’ after ‘‘citi12 zenship’’; 

13 (III) in clause (v)(I), by inserting 

14 ‘‘or legal permanent resident’’; and 

15 (IV) in clause (vi)— 

16 (aa) by inserting ‘‘or legal 

17 permanent resident status’’ after 

18 ‘‘renunciation of citizenship’’; 

19 and 

20 (bb) by inserting ‘‘or legal 

21 permanent resident’’ after ‘‘abus22 er’s citizenship’’; 

23 (ii) by striking subparagraph (B); 
41 

•S 2381 IS 

1 (iii) by redesignating subparagraphs 

2 (C) through (J) as subparagraphs (B) 

3 through (I), respectively; 

4 (iv) in subparagraph (B), as so redes5 ignated, by striking ‘‘subparagraph 

6 (A)(iii), (A)(iv), (B)(ii), or (B)(iii)’’ and in7 serting ‘‘clause (iii) or (iv) of subpara8 graph (A)’’; and 

9 (v) in subparagraph (I), as so redesig10 nated— 

11 (I) by striking ‘‘or clause (ii) or 

12 (iii) of subparagraph (B)’’; and 

13 (II) by striking ‘‘under subpara14 graphs (C) and (D)’’ and inserting 

15 ‘‘under subparagraphs (B) and (C)’’; 

16 (B) by striking subsection (a)(2); 

17 (C) in subsection (h), by striking ‘‘or a pe18 tition filed under subsection (a)(1)(B)(ii)’’; and 

19 (D) in subsection (j), by striking ‘‘sub20 section (a)(1)(D)’’ and inserting ‘‘subsection 

21 (a)(1)(C)’’. 
42 

•S 2381 IS 

1 SEC. 203. DERIVATIVE ELIGIBILITY FOR RELATIVES OF IM2 MEDIATE RELATIVES. 

3 Section 201(b)(2)(A) of the Immigration and Nation4 ality Act (8 U.S.C. 1151(b)(2)(A)) is amended by adding 

5 at the end the following: 

6 ‘‘(iii) An alien who is the child of an immediate 

7 relative described in clause (i), if accompanying or 

8 following to join the child’s parent.’’. 

9 SEC. 204. WAIVER OF NUMERICAL LIMITATIONS ON VISAS 

10 FOR LONG-WAITING FAMILY-SPONSORED IM11 MIGRANTS. 

12 Notwithstanding numerical limitations under section 

13 202(a)(2), section 201(b)(1) of the Immigration and Na14 tionality Act is amended by adding at the end the fol15 lowing: 

16 ‘‘(F) Qualified family-sponsored immigrants de17 scribed in section 203(a) who are awaiting the issuance 

18 of an immigrant visa number under such section, begin19 ning in the fiscal year that commences after the 5th anni20 versary of the date on which the petition for the immigrant 

21 was filed as provided in section 204, and notwithstanding 

22 the numerical limitation in section 202(a)(2).’’. 

23 SEC. 205. RECAPTURE OF UNUSED VISA NUMBERS. 

24 (a) FAMILY-SPONSORED IMMIGRANTS.—Section 

25 201(c)(2) of the Immigration and Nationality Act (8 
43 

•S 2381 IS 

1 U.S.C. 1151(c)(2)) (as redesignated by section 201 of this 

2 Act) is amended by adding at the end the following: 

3 ‘‘(D) The number computed under this paragraph for 

4 a fiscal year shall be increased by the number of immi5 grant visas made available under section 203(a) in the 

6 previous fiscal year that were not issued to qualified immi7 grants for any reason. Visas made available under this 

8 subparagraph shall not be subject to the limitations in sec9 tion 202(a).’’. 

10 (b) EMPLOYMENT-BASED IMMIGRANTS.—Section 

11 201(d)(2) of the Immigration and Nationality Act (8 

12 U.S.C. 1151(d)(2)) is amended by adding at the end the 

13 following: 

14 ‘‘(D) The number computed under this paragraph for 

15 a fiscal year shall be increased by the number of immi16 grant visas made available under section 203(b) in the 

17 previous fiscal year that were not issued to qualified immi18 grants for any reason. Visas made available under this 

19 subparagraph shall not be subject to the limitations in sec20 tion 202(a).’’. 

21 (c) ELIGIBILITY FOR DIVERSITY VISAS.—Section 

22 204(a)(1)(I)(ii)(II) of the Immigration and Nationality 

23 Act (8 U.S.C. 1154(a)(1)(I)(ii)(II)) is amended by strik24 ing the period at the end and inserting the following: ‘‘, 

25 except that any such visa that may not be issued due to 
44 

•S 2381 IS 

1 the pendency of a security, or security-related, check at 

2 the end of such fiscal year shall remain available for 

3 issuance to the alien in subsequent fiscal years until a rea4 sonable period, determined by the Secretary of Homeland 

5 Security, after the completion of such check.’’. 

6 (d) ENSURING SECURITY CLEARANCES DO NOT

7 CAUSE VISA LOSS.—Section 203(e) of the Immigration 

8 and Nationality Act (8 U.S.C. 1153(e)) is amended by 

9 adding at the end the following: 

10 ‘‘(4) Notwithstanding any other provision of this Act, 

11 a delay in the completion of a security, or security-related, 

12 check shall not result in the forfeiture of an immigrant 

13 visa that otherwise would be made available, or issued, to 

14 an eligible immigrant under this section.’’. 

15 SEC. 206. REFORM OF AFFIDAVIT OF SUPPORT REQUIRE16 MENTS. 

17 Section 213A of the Immigration and Nationality Act 

18 (8 U.S.C. 1183a) is amended, in each of subsections 

19 (a)(1)(A) and (f)(1)(E), by striking ‘‘125’’ and inserting 

20 ‘‘100’’. 

21 SEC. 207. INCREASE AGE FOR DERIVATIVE CITIZENSHIP. 

22 (a) IN GENERAL.—Title III of the Immigration and 

23 Nationality Act (8 U.S.C. 1401 et seq.) is amended, in 

24 each of sections 320 and 322, by striking ‘‘eighteen’’ and 

25 inserting ‘‘21’’. 
45 

•S 2381 IS 

1 (b) EFFECTIVE DATE.—The amendments made by 

2 subsection (a) shall take effect as if enacted on February 

3 27, 2001. 

4 SEC. 208. REPEAL BARRIERS TO REENTRY. 

5 (a) IN GENERAL.—Subparagraphs (B) and (C) of 

6 section 212(a)(9) of the Immigration and Nationality Act 

7 (8 U.S.C. 1182(a)(9)) are repealed. 

8 (b) EFFECTIVE DATE.—Subsection (a) shall take ef9 fect as if enacted as part of section 301(b) of the Illegal 

10 Immigration Reform and Immigrant Responsibility Act of 

11 1996 (110 Stat. 3009–575 et seq.). 

12 SEC. 209. BIOMETRIC DOCUMENTS. 

13 Each alien who is issued a visa or otherwise provided 

14 immigrant status under this title shall be issued a ma15 chine-readable, tamper-resistant visa or document that 

16 uses biometric identifiers consistent with the requirements 

17 of section 303 of the Enhanced Border Security and Visa 

18 Reform Act, Public Law 107–173. 

19 SEC. 210. AUTHORIZATION OF APPROPRIATIONS. 

20 There are authorized to be appropriated such sums 

21 for English and civics classes as may be necessary to carry 

22 out this title. 
46 

•S 2381 IS 

1 TITLE III—TEMPORARY WORKER 

2 PROGRAM 

3 SEC. 301. TEMPORARY WORKERS. 

4 (a) H–2b WORKERS.—Section 101(a)(15)(H)(ii)(b) 

5 of the Immigration and Nationality Act (8 U.S.C. 

6 1101(a)(15)(H)(ii)(b)) is amended— 

7 (1) by inserting ‘‘subject to section 212(u),’’ be8 fore ‘‘having a residence in a foreign country’’; and 

9 (2) by striking ‘‘temporary service or labor’’ 

10 and inserting ‘‘short-term service or labor, lasting 

11 not more than 9 months’’. 

12 (b) H–1d WORKERS.—Section 101(a)(15)(H)(i)(c) of 

13 the Immigration and Nationality Act (8 U.S.C. 

14 1101(a)(15)(H)(i)(c)) is amended by striking the semi15 colon and inserting the following: ‘‘, or (d) subject to sec16 tion 212(u), who is coming temporarily to the United 

17 States to perform labor or services, other than those occu18 pation classifications covered under the provisions of 

19 clauses (i)(b) or (ii)(a) or subparagraphs (L), (O), or (P), 

20 for a United States employer, if United States workers 

21 capable of performing such labor or service cannot be iden22 tified or are unavailable.’’. 
47 

•S 2381 IS 

1 SEC. 302. RECRUITMENT OF UNITED STATES WORKERS. 

2 Section 212 of the Immigration and Nationality Act 

3 (8 U.S.C. 1182) is amended by adding at the end the fol4 lowing: 

5 ‘‘(u)(1) An employer that seeks to employ an alien 

6 described in clause (i)(d) or (ii)(b) of section 

7 101(a)(15)(H) shall take the following steps to recruit 

8 United States workers for the position for which the non9 immigrant worker is sought 14 days prior to filing an ap10 plication under paragraph (3) (with respect to an alien 

11 described in such clause (ii)(b)) or 30 days prior to filing 

12 an application under such paragraph (with respect to an 

13 alien described in such clause (i)(d)): 

14 ‘‘(A) Submit a copy of the job offer, including 

15 a description of the wages and other terms and con16 ditions of employment, to the State Employment 

17 Service Agency (SESA) which— 

18 ‘‘(i) serves the area of employment in the 

19 State in which the employer is located; and 

20 ‘‘(ii) shall provide the employers with an 

21 acknowledgment of receipt of the documenta22 tion provided to the SESA in accordance with 

23 this subparagraph. 

24 ‘‘(B) Authorize the SESA to post the job op25 portunity on the Internet through the web site for 

26 ‘America’s Job Bank’, with local job banks, and with 
48 

•S 2381 IS 

1 unemployment agencies and other labor referral and 

2 recruitment sources pertinent to the job in question. 

3 ‘‘(C) Authorize the SESA to notify the central 

4 office of the State Federation of Labor in the State 

5 in which the job is located, and if applicable, the of6 fice of the local union which represents the employ7 ees in the same or substantially equivalent job classi8 fication of the job opportunity. 

9 ‘‘(D) Post the availability of the job opportunity 

10 for which the employer is seeking a worker in con11 spicuous locations at the place of employment for all 

12 employees to see. 

13 ‘‘(E) Advertise the availability of the job oppor14 tunity for which the employer is seeking a worker in 

15 a publication with the highest circulation in the 

16 labor market that is likely to be patronized by a po17 tential worker for at least 3 consecutive days (with 

18 respect to an alien described in such clause (ii)(b)) 

19 or for at least 10 consecutive days (with respect to 

20 an alien described in such clause (i)(d)). 

21 ‘‘(F) Based on recommendations by the local 

22 job service, advertise the availability of the job op23 portunity in professional, trade, or local minority 

24 and ethnic publications that are likely to be patron25 ized by a potential worker. 
49 

•S 2381 IS 

1 ‘‘(2) An employer that seeks to employ an alien de2 scribed in clause (i)(d) or (ii)(b) of section 101(a)(15)(H) 

3 shall— 

4 ‘‘(A) first offer the job to any eligible United 

5 States worker who applies, is qualified for the job, 

6 and is available at the time of need; 

7 ‘‘(B) be required to maintain for at least 1 year 

8 after the employment relation is terminated, docu9 mentation of recruitment efforts and responses con10 ducted and received prior to the filing of the employ11 er’s application with the Department of Labor, in12 cluding resumes, applications, and if applicable, tests 

13 of United States workers who applied and were not 

14 hired for the job the employer seeks to fill with a 

15 nonimmigrant worker; and 

16 ‘‘(C) attest that there are not sufficient United 

17 States workers who are able, willing, qualified, and 

18 available at the time of the filing of the applica19 tion.’’. 

20 SEC. 303. ADMISSION OF TEMPORARY WORKERS. 

21 (a) APPLICATION TO THE SECRETARY OF LABOR.— 

22 Section 212(u) of the Immigration and Nationality Act (8 

23 U.S.C. 1182(u)), as added by section 302, is amended by 

24 adding after paragraph (2) the following: 
50 

•S 2381 IS 

1 ‘‘(3) An employer that seeks to fill a position with 

2 an alien described in clause (i)(d) or (ii)(b) of section 

3 101(a)(15)(H), shall file with the Secretary of Labor an 

4 application attesting that— 

5 ‘‘(A) the employer is offering and will offer dur6 ing the period of authorized employment to aliens 

7 admitted or provided status as a nonimmigrant de8 scribed in clause (i)(d) or (ii)(b) of section 

9 101(a)(15)(H), the prevailing wage that shall be de10 termined as follows: 

11 ‘‘(i) if the job opportunity is covered by a 

12 collective bargaining agreement between a union 

13 and the employer, the wage rate set forth in the 

14 collective bargaining agreement; 

15 ‘‘(ii) if the job opportunity is not covered 

16 by a collective bargaining agreement between a 

17 union and the employer and it is in an occupa18 tion that is covered by a wage determination 

19 under the Davis-Bacon Act (40 U.S.C. 276a et 

20 seq.) or the Service Contract Act of 1965 (41 

21 U.S.C. 351 et seq.), the appropriate statutory 

22 wage determination; or 

23 ‘‘(iii) if clauses (i) and (ii) do not apply, 

24 the highest 66 percent of the wage data pro25 vided by the Department of Labor’s Bureau of 
51 

•S 2381 IS 

1 Labor Statistics, Occupational Employment 

2 Survey; 

3 based on the best information available at the time 

4 of the filing of the application; 

5 ‘‘(B) the employer will offer the same wages, 

6 benefits, and working conditions for such non7 immigrants as those provided to United States work8 ers similarly employed in the same occupation and 

9 the same place of employment (defined as the actual 

10 place where the work is performed); 

11 ‘‘(C) there is not a strike, lockout, or labor dis12 pute in the occupational classification at the place of 

13 employment (including any concerted activity to 

14 which section 7 of the Labor Management Relations 

15 Act (29 U.S.C. 157) applies); 

16 ‘‘(D) the employer will abide by all applicable 

17 laws and regulations relating to the right of workers 

18 to join or organize a union; 

19 ‘‘(E) the employer has provided notice of the 

20 filing of the application to the bargaining represent21 ative, if any, of the employer’s employees in the oc22 cupational classification at the place of employment 

23 or, if there is no such bargaining representative, has 

24 posted notice of the filing in conspicuous locations at 

25 the place of employment for all employees to see for 
52 

•S 2381 IS 

1 not less than 14 business days for an alien described 

2 in clause (ii)(b) of section 101(a)(15)(H) and for not 

3 less than 30 business days for an alien described in 

4 clause (i)(d) of such section; 

5 ‘‘(F) the requirements for the job opportunity 

6 represent the employer’s actual minimum require7 ments for that job and the employer will not hire 

8 nonimmigrant workers with less training or experi9 ence; 

10 ‘‘(G) the employer, within the 60 days prior to 

11 the filing of the application and the 60 days fol12 lowing the filing, has not laid-off, and will not lay13 off, any United States worker employed by the em14 ployer in the same position at the place of employ15 ment; 

16 ‘‘(H) the employer, prior to the filing of the ap17 plication, has complied with the recruitment require18 ments in accordance with paragraph (1); and 

19 ‘‘(I) no job offer may impose on United States 

20 workers any restrictions or obligations that will not 

21 be imposed by an employer on a nonimmigrant 

22 worker described in clause (i)(d) or (ii)(b) of section 

23 101(a)(15)(H).’’. 

24 (b) ACCOMPANIED BY JOB OFFER.—Section 212(u) 

25 of the Immigration and Nationality Act (8 U.S.C. 
53 

•S 2381 IS 

1 1182(u)), as amended by subsection (a), is further amend2 ed by adding after paragraph (3) the following: 

3 ‘‘(4) Each application filed under paragraph (3) shall 

4 be accompanied by— 

5 ‘‘(A) a copy of the job offer describing the 

6 wages and other terms and conditions of employ7 ment; 

8 ‘‘(B) a statement of the minimum education, 

9 training, experience, and requirements for the job 

10 opportunity in question; 

11 ‘‘(C) copies of the documentation submitted to 

12 the State Employment Service Agency to recruit 

13 United States workers in accordance with paragraph 

14 (1); 

15 ‘‘(D) copies of the advertisements to recruit 

16 United States workers placed in publications in ac17 cordance with paragraph (1); and 

18 ‘‘(E) a copy of the acknowledgment of receipt 

19 provided to the employer by the State Employment 

20 Service Agency in accordance with paragraph 

21 (1)(A)(ii).’’. 

22 (c) INCOMPLETE APPLICATIONS; RETENTION OF AP23 PLICATION; FILING OF PETITION.—Section 212(u) of the 

24 Immigration and Nationality Act (8 U.S.C. 1182(u)), as 
54 

•S 2381 IS 

1 amended by subsection (b), is further amended by adding 

2 after paragraph (4) the following: 

3 ‘‘(5) The Secretary of Labor shall review the applica4 tion and requisite documents filed in accordance with 

5 paragraphs (3) and (4) for completeness and accuracy and 

6 if deficiencies are found, the Secretary of Labor shall no7 tify the employer and provide the employer with an oppor8 tunity to address such deficiencies. 

9 ‘‘(6) A copy of the application and requisite docu10 ments filed with the Secretary of Labor in accordance with 

11 paragraphs (3) and (4) shall be retained by the employer 

12 in a public access file at the employer’s headquarters or 

13 principal place of employment of the alien for the duration 

14 of the employment relationship and for 1 year after the 

15 termination of that employment relationship. 

16 ‘‘(7) Upon approval of an application by the Sec17 retary of Labor, an employer who seeks to employ an alien 

18 described in clause (i)(d) or (ii)(b) of section 

19 101(a)(15)(H) shall file a petition as required under sec20 tion 214(c)(1) with the Bureau of Citizenship and Immi21 gration Services within the Department of Homeland Se22 curity.’’. 

23 (d) BIOMETRIC DOCUMENTS.—Each alien who is 

24 issued a visa or otherwise provided nonimmigrant status 

25 under section 101(a)(15)(H)(i)(d) or (ii)(b) of the Immi-
55 

•S 2381 IS 

1 gration and Nationality Act shall be issued a machine2 readable, tamper-resistant visa or document that uses bio3 metric identifiers consistent with the requirements of sec4 tion 303 of the Enhanced Border Security and Visa Re5 form Act, Public Law 107–173. 

6 SEC. 304. WORKER PROTECTIONS. 

7 Section 212(u) of the Immigration and Nationality 

8 Act (8 U.S.C. 1182(u)), as amended by section 303, is 

9 further amended by adding after paragraph (7) the fol10 lowing: 

11 ‘‘(8)(A) Nothing in this subsection shall be construed 

12 to limit the rights of an employee under a collective bar13 gaining agreement or other employment contract. 

14 ‘‘(B) An alien admitted or otherwise provided status 

15 under clause (i)(d) or (ii)(b) of section 101(a)(15)(H) 

16 shall not be denied any right or remedy under Federal, 

17 State, or local labor and employment laws applicable to 

18 a United States worker employed in a similar position with 

19 the employer because of the status of the alien as a non20 immigrant worker. 

21 ‘‘(C) It shall be unlawful for an employer who has 

22 filed a petition for a nonimmigrant worker described in 

23 clause (i)(d) or (ii)(b) of section 101(a)(15)(H) to intimi24 date, threaten, restrain, coerce, blacklist, discharge, or in 
56 

•S 2381 IS 

1 any other manner, discriminate against an employee (in2 cluding a former employee) because the employee— 

3 ‘‘(i) disclosed information, to the employer or to 

4 any other person, that the employee reasonably be5 lieves evidences a violation of this subsection or any 

6 rule or regulation pertaining to this subsection; or 

7 ‘‘(ii) because the employee cooperates or seeks 

8 to cooperate in an investigation or other proceeding 

9 concerning the employer’s compliance with the re10 quirements of this subsection or any rule or regula11 tion pertaining to this subsection. 

12 ‘‘(D) The Secretary of Labor and the Secretary of 

13 Homeland Security shall establish a process under which 

14 a nonimmigrant worker described in clause (i)(d) or (ii)(b) 

15 of section 101(a)(15)(H) who files a complaint regarding 

16 a violation of this subsection, or any other rule or regula17 tion pertaining to this subsection and is otherwise eligible 

18 to remain and work in the United States may be allowed 

19 to seek other appropriate employment in the United States 

20 for a period not to exceed the maximum period of stay 

21 authorized for that nonimmigrant classification. 

22 ‘‘(E)(i) The Secretary of Labor shall establish a proc23 ess for the receipt, investigation, and disposition of com24 plaints respecting a petitioner’s failure to meet a condition 

25 specified in the application submitted under paragraph 
57 

•S 2381 IS 

1 (3), or a petitioner’s misrepresentation of a material fact 

2 in an application submitted under paragraph (3). Com3 plaints may be filed by an aggrieved person or organiza4 tion (including bargaining representatives). No investiga5 tion or hearing shall be conducted on a complaint con6 cerning such a failure or misrepresentation unless the 

7 complaint was filed not later than 12 months after the 

8 date of the failure or misrepresentation, respectively. The 

9 Secretary of Labor shall conduct an investigation under 

10 this clause if there is reasonable cause to believe that such 

11 a failure or misrepresentation has occurred. 

12 ‘‘(ii) The process established under clause (i) shall 

13 provide that, not later than 30 days after a complaint is 

14 filed, a determination of whether or not a reasonable basis 

15 exists to find a violation shall be made. 

16 ‘‘(iii) If it is determined that a reasonable basis exists 

17 under clause (ii), then not later than 60 days after that 

18 determination is made, the Secretary of Labor shall issue 

19 a notice to the interested parties and offer an opportunity 

20 for a hearing on the complaint, in accordance with section 

21 556 of title 5, United States Code. 

22 ‘‘(iv) If the Secretary of Labor, after receiving a com23 plaint under clause (i), does not offer the aggrieved party 

24 or organization an opportunity for a hearing under clause 

25 (iii), the Secretary of Labor shall notify the aggrieved 
58 

•S 2381 IS 

1 party or organization of such determination and the ag2 grieved party or organization may seek a hearing on the 

3 complaint in accordance with section 556 of title 5, United 

4 States Code. 

5 ‘‘(v) If a hearing is requested under clause (iii) or 

6 (iv), then not later than 60 days after the date of the hear7 ing, the Secretary of Labor shall make a finding on the 

8 matter in accordance with paragraph (6). 

9 ‘‘(vi) If the Secretary of Labor finds, after notice and 

10 opportunity for a hearing, a failure to meet a requirement 

11 of paragraph (3), or a misrepresentation of a material fact 

12 in an application— 

13 ‘‘(I) the Secretary of Labor shall notify the Sec14 retary of Homeland Security of such findings, and 

15 may impose administrative remedies, including civil 

16 monetary penalties not to exceed $3,000 per viola17 tion; and 

18 ‘‘(II) the Secretary of Homeland Security shall 

19 not approve petitions filed by that employer under 

20 section 214(c) for a period of at least 1 year for 

21 aliens to be employed by the employer. 

22 ‘‘(vii) If the Secretary of Labor finds, after notice and 

23 opportunity for a hearing, a willful failure to meet a re24 quirement of paragraph (3), or a willful misrepresentation 

25 of a material fact in an application— 
59 

•S 2381 IS 

1 ‘‘(I) the Secretary of Labor shall notify the Sec2 retary of Homeland Security of such findings, and 

3 may impose administrative remedies, including civil 

4 monetary penalties in an amount not to exceed 

5 $8,000 per violation; and 

6 ‘‘(II) the Secretary of Homeland Security shall 

7 not approve petitions filed with respect to that em8 ployer under section 214(c) during a period of at 

9 least 2 years for aliens to be employed by the em10 ployer. 

11 ‘‘(viii) If the Secretary of Labor finds, after notice 

12 and opportunity for a hearing, a willful failure by an em13 ployer to meet a requirement of paragraph (3), or a willful 

14 misrepresentation of material fact in an application, in the 

15 course of which failure or misrepresentation the employer 

16 displaced a United States worker employed by the em17 ployer within the period beginning 60 days before and end18 ing 60 days after the date of filing of any visa petition 

19 supported by the application— 

20 ‘‘(I) the Secretary of Labor shall notify the Sec21 retary of Homeland Security of such findings, and 

22 may impose administrative remedies, including civil 

23 monetary penalties in an amount not to exceed 

24 $35,000 per violation; and 
60 

•S 2381 IS 

1 ‘‘(II) the Secretary of Homeland Security shall 

2 not approve petitions filed with respect to that em3 ployer under section 214(c) during a period of at 

4 least 3 years for aliens to be employed by the em5 ployer. 

6 ‘‘(F) The Department of Labor shall have the author7 ity to initiate and pursue investigations and audits of em8 ployers, whether upon complaint or otherwise, in order to 

9 ensure that employers are not violating the rights guaran10 teed under this subsection to nonimmigrant workers de11 scribed in clause (i)(d) or (ii)(b) of section 101(a)(15)(H). 

12 ‘‘(G) In any complaint respecting a willful failure by 

13 an employer to meet a requirement of law or a regulation 

14 concerning the employment of nonimmigrants described in 

15 clause (i)(d) or (ii)(b) of section 101(a)(H) or a willful 

16 misrepresentation of material fact in an application, the 

17 court in its discretion, may allow a prevailing party, other 

18 than the United States, a reasonable attorney’s fee. 

19 ‘‘(H) A nonimmigrant worker described in clause 

20 (i)(d) of (ii)(b) of section 101(a)(15)(H) aggrieved by a 

21 violation of rights enforceable under section 212(u)(8) by 

22 an employer or other person may file suit in any district 

23 court of the United States having jurisdiction of the par24 ties, without regard to the amount in controversy, without 

25 regard to the citizenship of the parties, and without regard 
61 

•S 2381 IS 

1 to the exhaustion of any alternative administrative remedy 

2 under this Act, not later than 3 years after the date on 

3 which the violation occurs.’’. 

4 SEC. 305. PORTABILITY. 

5 Section 212(u) of the Immigration and Nationality 

6 Act (8 U.S.C. 1182(u)), as amended by section 304, is 

7 further amended by adding after paragraph (8) the fol8 lowing: 

9 ‘‘(9)(A) Any alien admitted or otherwise provided sta10 tus as a nonimmigrant described in section 

11 101(a)(15)(H)(i)(d) or (ii)(b) may change employers only 

12 after the alien has been employed by the petitioning em13 ployer for at least 3 months from the date of admission 

14 or the date such status was otherwise acquired. 

15 ‘‘(B) The 3-month employment requirement in sub16 paragraph (A) may be waived (without loss of status dur17 ing the period of the waiver) in circumstances where— 

18 ‘‘(i) the alien began and continued the employ19 ment in good faith but the employer violated a term 

20 or condition of sponsorship of the alien under this 

21 Act or violated any other law or regulation relating 

22 to the employment of the alien; or 

23 ‘‘(ii) the personal circumstances of the alien 

24 changed so as to require a change of employer, in25 cluding family, medical, or humanitarian reasons, a 
62 

•S 2381 IS 

1 disability, or other factor rendering the alien unable 

2 to perform the job. 

3 ‘‘(C) If a waiver under subparagraph (B) is sought, 

4 the application shall be accompanied by such evidence to 

5 warrant the approval of such waiver. 

6 ‘‘(D) A nonimmigrant alien admitted or otherwise 

7 provided status as a nonimmigrant described in clause 

8 (i)(d) or (ii)(b) of section 101(a)(15)(H) may accept new 

9 employment with a new employer upon the filing by the 

10 new employer of a new application on behalf of such alien 

11 as provided under paragraph (3). Employment authoriza12 tion shall continue until the new petition is adjudicated. 

13 If the new petition is denied, the alien’s right to work as 

14 established by this subsection shall cease. The alien’s right 

15 to work, if any, established by any other provision of law, 

16 shall not be affected by the denial of such new applica17 tion.’’. 

18 SEC. 306. SPOUSES AND CHILDREN OF TEMPORARY WORK19 ERS. 

20 Section 212(u) of the Immigration and Nationality 

21 Act (8 U.S.C. 1182(u)), as amended by section 305, is 

22 further amended by adding after paragraph (9) the fol23 lowing: 

24 ‘‘(10) A spouse or child of a nonimmigrant worker 

25 described in clause (i)(d) or (ii)(b) of section 
63 

•S 2381 IS 

1 101(a)(15)(H) shall be eligible for derivative status by ac2 companying or following to join the alien.’’. 

3 SEC. 307. PETITIONS BY EMPLOYER GROUPS AND UNIONS. 

4 Section 214(c)(1) of the Immigration and Nationality 

5 Act (8 U.S.C. 1184(c)(1)) is amended— 

6 (1) by inserting after the first sentence the fol7 lowing: ‘‘In the case of an alien or aliens described 

8 in clause (i)(d) or (ii)(b) of section 101(a)(15)(H), 

9 the petition may be filed by an associated or affili10 ated group of employers that have multiple openings 

11 for similar employment on behalf of the individual 

12 employers or by a union or union consortium. The 

13 petition, if approved, will be valid for employment in 

14 the described positions for the member employers, 

15 the union, or union consortium, provided the em16 ploying entity has complied with all applicable re17 cruitment requirements and paid the requisite peti18 tion fees.’’; and 

19 (2) by adding at the end the following: ‘‘Noth20 ing in this paragraph shall be construed to permit 

21 a recruiting entity or job shop to petition for an 

22 alien described in clause (i)(d) or (ii)(b) of section 

23 101(a)(15)(H).’’. 
64 

•S 2381 IS 

1 SEC. 308. PROCESSING TIME FOR PETITIONS. 

2 Section 214(c) of the Immigration and Nationality 

3 Act (8 U.S.C. 1184(c)) is amended by adding at the end 

4 the following: 

5 ‘‘(12) The Secretary of Labor shall review the appli6 cation filed under section 212(u)(3) for completeness and 

7 accuracy and issue a determination with regard to the ap8 plication not later than 10 workings days after the date 

9 on which the application was filed. 

10 ‘‘(13) The Secretary of Homeland Security shall es11 tablish a process for reviewing and completing adjudica12 tion of petitions filed under this subsection with respect 

13 to nonimmigrant workers described in clause (i)(d) or 

14 (ii)(b) of section 101(a)(15)(H) and derivative applica15 tions associated with these petitions, not later than 60 

16 days after the completed petition has been filed.’’. 

17 SEC. 309. TERMS OF ADMISSION. 

18 Section 214(g) of the Immigration and Nationality 

19 Act (8 U.S.C. 1184(g)) is amended by adding at the end 

20 the following: 

21 ‘‘(9) In the case of a nonimmigrant described in sec22 tion 101(a)(15)(H)(ii)(b), the initial period of authorized 

23 admission shall be for not more than 9 months from the 

24 date of application for admission in such status in any 

25 1-year period. No nonimmigrant described in such section 
65 

•S 2381 IS 

1 may be admitted for a total period that exceeds an aggre2 gate of 40 months. 

3 ‘‘(10) In the case of a nonimmigrant described in sec4 tion 101(a)(15)(H)(i)(d), the initial period of authorized 

5 admission shall be for not more than 2 years. The em6 ployer may petition for extensions of such status for 2 ad7 ditional periods of not more than 2 years each. No non8 immigrant described in such section shall be admitted for 

9 a total period that exceeds 6 years. 

10 ‘‘(11)(A) The limitation contained in paragraphs (9) 

11 and (10) with respect to the duration of authorized stay 

12 shall not apply to any nonimmigrant alien previously 

13 issued a visa or otherwise provided nonimmigrant status 

14 under clause (i)(d) or (ii)(b) of section 101(a)(15)(H) on 

15 whose behalf a petition has been filed under section 204(b) 

16 to accord the alien immigrant status under section 203(b), 

17 or an application for adjustment of status has been filed 

18 under section 245 to accord the alien status under section 

19 203(b), if 365 days or more have elapsed since— 

20 ‘‘(i) the filing of a labor certification application 

21 on behalf of the alien (if such certification is re22 quired for the alien to obtain status under section 

23 203(b)); or 

24 ‘‘(ii) the filing of the petition under section 

25 204(a). 
66 

•S 2381 IS 

1 ‘‘(B) The Secretary of Homeland Security shall ex2 tend the stay of an alien who qualifies for an exemption 

3 under subparagraph (A) until such time as a final decision 

4 is made— 

5 ‘‘(i) to deny the application described in sub6 paragraph (A)(i), or, in a case in which such appli7 cation is granted, to deny a petition described in 

8 subparagraph (A)(ii) filed on behalf of the alien pur9 suant to such grant; 

10 ‘‘(ii) to deny the petition described in subpara11 graph (A)(ii); or 

12 ‘‘(iii) to grant or deny the alien’s application for 

13 an immigrant visa or for adjustment of status to 

14 that of an alien lawfully admitted for permanent res15 idence.’’. 

16 SEC. 310. NUMBER OF VISAS ISSUED. 

17 Section 214 (g)(1)(B) of the Immigration and Na18 tionality Act (8 U.S.C. 1184(g)(1)(B)) is amended to read 

19 as follows: 

20 ‘‘(B)(i) under section 101(a)(15)(H)(i)(d) may 

21 not exceed 250,000; and 

22 ‘‘(ii) under section 101(a)(15)(H)(ii)(b) may 

23 not exceed 100,000.’’. 
67 

•S 2381 IS 

1 SEC. 311. CHANGE OF STATUS. 

2 Section 212(u) of the Immigration and Nationality 

3 Act (8 U.S.C. 1182(u)), as amended by section 306, is 

4 further amended by adding after paragraph (10) the fol5 lowing: 

6 ‘‘(11) An alien admitted as a nonimmigrant or other7 wise provided status under clause (i)(d) or (ii)(b) of sec8 tion 101(a)(15)(H) shall be eligible to obtain a change of 

9 status to another immigrant or nonimmigrant classifica10 tion that the alien may be eligible for.’’. 

11 SEC. 312. ADJUSTMENT OF STATUS TO LAWFUL PERMA12 NENT RESIDENT. 

13 (a) EMPLOYMENT-BASED IMMIGRANT VISAS.—Sec14 tion 212(u) of the Immigration and Nationality Act (8 

15 U.S.C. 1182(u)), as amended by section 311, is further 

16 amended by adding after paragraph (11) the following: 

17 ‘‘(12)(A) Nonimmigrant aliens admitted or otherwise 

18 provided status under clause (i)(d) or (ii)(b) of section 

19 101(a)(15)(H) shall be eligible for an employment-based 

20 immigrant visa pursuant to section 203(b)(3) and adjust21 ment of status pursuant to section 245. 

22 ‘‘(B) Pursuant to subparagraph (A), for purposes of 

23 adjustment of status under section 245(a) or issuance of 

24 an immigrant visa under section 203(b)(3), employment25 based immigrant visas shall be made available without nu26 merical limitation to an alien having nonimmigrant status 
68 

•S 2381 IS 

1 described in clause (i)(d) or (ii)(b) of section 

2 101(a)(15)(H) upon the filing of a petition for such a visa 

3 by— 

4 ‘‘(i) the employer of the alien; or 

5 ‘‘(ii) the alien, provided the alien has been em6 ployed under such nonimmigrant status for at least 

7 2 years. 

8 ‘‘(C) The spouse or child of an alien granted status 

9 under clause (i)(d) or (ii)(b) of section 101(a)(15)(H) 

10 shall be eligible as a derivative beneficiary for an immi11 grant visa and adjustment of status.’’. 

12 (b) DUAL INTENT.—Section 214(h) of the Immigra13 tion and Nationality Act (8 U.S.C. 1184(h)) is amended 

14 by inserting ‘‘(H)(ii)(b),’’ after ‘‘(H)(i)(d),’’. 

15 SEC. 313. NOTIFICATION OF EMPLOYEE RIGHTS. 

16 Section 214(c), as amended by section 208, is further 

17 amended by adding at the end the following: 

18 ‘‘(15) An employer that employs an alien de19 scribed in clause (i)(d) or (ii)(b) of section 

20 101(a)(15)(H) shall provide such alien with the 

21 same notification of the alien’s rights under Federal, 

22 State, or local laws that the employer is required to 

23 provide to United States workers.’’. 
69 

•S 2381 IS 

1 SEC. 314. GROUNDS OF INADMISSIBILITY. 

2 Section 212(u) of the Immigration and Nationality 

3 Act (8 U.S.C. 1182(u)), as amended by section 312, is 

4 further amended by adding after paragraph (12) the fol5 lowing: 

6 ‘‘(13) In determining the admissibility of an alien 

7 under clause (i)(d) or (ii)(b) of section 101(a)(15)(H), vio8 lations of grounds of inadmissibility described in para9 graphs (5), (6)(A), (6)(B), (6)(C), (6)(G), (7), (9), and 

10 (10)(B) of section 212(a) committed prior to the issuance 

11 or a visa under such section, or the approval of a change 

12 of status to a classification under such section shall not 

13 apply.’’. 

14 SEC. 315. PETITION FEES. 

15 Section 212(u) of the Immigration and Nationality 

16 Act (8 U.S.C. 1182(u)), as amended by section 314, is 

17 further amended by adding after paragraph (13) the fol18 lowing: 

19 ‘‘(14)(A) An employer filing a petition for an alien 

20 described in section 101(a)(15)(H)(i)(d) shall be required 

21 to pay a filing fee based on the cost of carrying out the 

22 processing duties under this subsection, and a secondary 

23 fee of— 

24 ‘‘(i) $250, in the case of an employer employing 

25 25 employees or less; 
70 

•S 2381 IS 

1 ‘‘(ii) $500, in the case of an employer employ2 ing between 26 and 150 employees; 

3 ‘‘(iii) $750, in the case of an employer employ4 ing between 151 and 500 employees; or 

5 ‘‘(iv) $1,000, in the case of an employer em6 ploying more than 500 employees. 

7 ‘‘(B) An employer filing a petition for an alien de8 scribed in section 101(a)(15)(H)(ii)(b) shall be required 

9 to pay a filing fee based on the costs of carrying out the 

10 processing duties under this subsection, and a secondary 

11 fee of— 

12 ‘‘(i) $125, in the case of an employer employing 

13 25 employees or less; 

14 ‘‘(ii) $250, in the case of an employer employ15 ing between 26 and 150 employees; 

16 ‘‘(iii) $375, in the case of an employer employ17 ing between 151 and 500 employees; or 

18 ‘‘(iv) $500, in the case of an employer employ19 ing more than 500 employees. 

20 ‘‘(C) An employer filing a petition for an alien de21 scribed in clause (i)(d) or (ii)(b) of section 101(a)(15)(H) 

22 shall be prohibited from charging the alien for a fee re23 quired under subparagraph (A) or (B). 

24 ‘‘(D) The fees collected under this paragraph shall 

25 be deposited into accounts within the Department of 
71 

•S 2381 IS 

1 Homeland Security, the Department of Labor, and the 

2 Department of State, and allocated such that— 

3 ‘‘(i) 20 percent of the amounts received shall be 

4 made available to the Department of Homeland Se5 curity until expended to carry out the requirements 

6 related to processing petitions filed by employers for 

7 aliens described in clause (i)(d) or (ii)(b) of section 

8 101(a)(15)(H); 

9 ‘‘(ii) 15 percent of the amounts received shall 

10 be made available to the Department of Labor until 

11 expended to carry out the requirements related to 

12 processing attestation applications filed by employers 

13 for aliens described in clause (i)(d) or (ii)(b) of sec14 tion 101(a)(15)(H); 

15 ‘‘(iii) 20 percent of the amounts received shall 

16 be made available to the Department of State until 

17 expended to carry out the requirements related to 

18 processing applications for visas by aliens under 

19 clause (i)(d) or (ii)(b) of section 101(a)(15)(H); 

20 ‘‘(iv) 15 percent of the amounts received shall 

21 be made available to the Department of Labor until 

22 expended to carry out the requirements described in 

23 paragraph (8); 

24 ‘‘(v) 15 percent of the amounts received shall be 

25 made available to the Department of Labor until ex-
72 

•S 2381 IS 

1 pended to increase the funds available to the United 

2 States Employment Service to assist State employ3 ment service agencies in responding to employers 

4 and employees contacting such agencies as a result 

5 of the requirements described in paragraph (1); and 

6 ‘‘(vi) 15 percent of the amounts received shall 

7 be made available to the Department of Homeland 

8 Security until expended to make improvements in 

9 technology for border security, including the use of 

10 machine-readable, tamper-resistant documents with 

11 biometric identifiers, expanding the use of readers 

12 and scanners, expanding programs for pre-enroll13 ment and pre-clearance, updating and correcting 

14 electronic databases, and other improvements to fa15 cilitate the flow of commerce and persons at ports 

16 of entry.’’. 

17 SEC. 316. DEFINITIONS. 

18 Section 212(u) of the Immigration and Nationality 

19 Act (8 U.S.C. 1182(u)), as amended by section 315, is 

20 further amended by adding after paragraph (14) the fol21 lowing: 

22 ‘‘(15) In this subsection: 

23 ‘‘(A) The term ‘U.S. employer’ means any per24 son or entity with a principal place of business in 

25 the United States that employs workers in labor or 
73 

•S 2381 IS 

1 services that are not agricultural, and shall not in2 clude recruiting entities or job shops. 

3 ‘‘(B) The term ‘job opportunity’ means a job 

4 opening for short-term full-time or part-time employ5 ment at a place in the United States to which 

6 United States workers can be referred. 

7 ‘‘(C)(i) The term ‘layoffs’, with respect to a 

8 worker— 

9 ‘‘(I) means to cause the worker’s loss of 

10 employment, other than through a discharge for 

11 inadequate performance, violation of workplace 

12 rules, cause, voluntary departure, voluntary re13 tirement, contract impossibility, termination of 

14 the position or company, temporary layoffs due 

15 to weather, markets, or other temporary condi16 tions; but 

17 ‘‘(II) does not include any situation in 

18 which the worker is offered, as an alternative to 

19 such loss of employment, a similar employment 

20 opportunity with the same employer at equiva21 lent or higher compensation and benefits than 

22 the position from which the employee was dis23 charged, regardless of whether or not the em24 ployee accepts the offer. 
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•S 2381 IS 

1 ‘‘(ii) Nothing in this subparagraph is intended 

2 to limit an employee’s rights under a collective bar3 gaining agreement or other employment contract. 

4 ‘‘(D) The term ‘United States worker’ means 

5 any worker, whether a United States citizen or na6 tional, a lawfully admitted permanent resident alien, 

7 or any other alien, who is authorized to work in the 

8 job opportunity within the United States, except an 

9 alien admitted or otherwise provided status under 

10 clauses (i)(b), (i)(d), (ii)(a), or (ii)(b) of section 

11 101(a)(15)(H), (L), (O), or (P) of section 

12 101(a)(15).’’. 

13 SEC. 317. COLLECTIVE BARGAINING AGREEMENTS. 

14 Notwithstanding any other provision of law, the fact 

15 that an individual holds a visa as a nonimmigrant worker 

16 described in clause (i)(d) or (ii)(b) of section 

17 101(a)(15)(H) of the Immigration and Nationality Act (8 

18 U.S.C. 1101(a)(15)(H)) shall not render that individual 

19 ineligible to qualify as an employee under the National 

20 Labor Relations Act (29 U.S.C. 151 et seq.) or to be pro21 tected under section 7 of that Act (29 U.S.C. 157). 

22 SEC. 318. INVESTIGATIONS BY DEPARTMENT OF HOME23 LAND SECURITY DURING LABOR DISPUTES. 

24 (a) IN GENERAL.—When information is received by 

25 the Department of Homeland Security concerning the em-
75 

•S 2381 IS 

1 ployment of undocumented or unauthorized aliens, consid2 eration should be given to whether the information is 

3 being provided to interfere with the rights of employees 

4 to— 

5 (1) form, join, or assist labor organizations or 

6 to exercise their rights not to do so; 

7 (2) be paid minimum wages and overtime; 

8 (3) have safe work places; 

9 (4) receive compensation for work related inju10 ries; 

11 (5) be free from discrimination based on race, 

12 gender, age, national origin, religion, or handicap; or 

13 (6) retaliate against employees for seeking to 

14 vindicate these rights. 

15 (b) DETERMINATION OF LABOR DISPUTE.—When16 ever information received from any source creates a sus17 picion that an immigration enforcement action might in18 volve the Department of Homeland Security in a labor dis19 pute, a reasonable attempt should be made by Department 

20 of Homeland Security enforcement officers to determine 

21 whether a labor dispute is in progress. The information 

22 officer at the regional office of the National Labor Rela23 tions Board can supply status information on unfair labor 

24 practice charges or union election or decertification peti25 tions that are pending involving most private sector, non-
76 

•S 2381 IS 

1 agricultural employers. Wage and hour information can be 

2 obtained from the Wage and Hour Division of the Depart3 ment of Labor or the State labor department. 

4 (c) RELEVANT QUESTIONS FOR INFORMANT.—In 

5 order to protect the Department of Homeland Security 

6 from unknowingly becoming involved in a labor dispute, 

7 persons who provide information to the Department of 

8 Homeland Security about the employer or employees in9 volved in the dispute should be asked— 

10 (1) their names; 

11 (2) whether there is a labor dispute in progress 

12 at the worksite; 

13 (3) whether the person is or was employed at 

14 the worksite in question (or by a union representing 

15 workers at the worksite); 

16 (4) if applicable, whether the person is or was 

17 employed in a supervisory or managerial capacity or 

18 is related to anyone who is; 

19 (5) how the person came to know that the sub20 jects lacked legal authorization to work, as well as 

21 the source and reliability of the information con22 cerning the subject’s status; 

23 (6) whether the person had or is having a dis24 pute with the employer or the subjects of the infor25 mation; and 
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•S 2381 IS 

1 (7) if the subjects of the information have 

2 raised complaints or grievances about hours, work3 ing conditions, discriminatory practices, or union 

4 representation or actions, or whether the subjects 

5 have filed workers’ compensation claims. 

6 (d) BICE REVIEW.—There is no prohibition for en7 forcing the Immigration and Nationality Act (8 U.S.C. 

8 1101 et seq.), even when there may be a labor dispute 

9 in progress, however, where it appears that information 

10 may have been provided in order to interfere with or to 

11 retaliate against employees for exercising their rights, no 

12 action should be taken on this information without review 

13 and approval by the Bureau of Immigration and Customs 

14 Enforcement of the Department of Homeland Security. 

15 (e) ENFORCEMENT ACTION.—When enforcement ac16 tion is taken by the Department of Homeland Security 

17 and the Department determines that there is a labor dis18 pute in progress, or that information was provided to the 

19 Department of Homeland Security to retaliate against em20 ployees for exercising their employment rights, the lead 

21 immigration officer in charge of the Department of Home22 land Security enforcement team at the worksite must en23 sure, to the extent possible, that any aliens who are ar24 rested or detained and are necessary for the prosecution 

25 of any violations are not removed from the country with-
78 

•S 2381 IS 

1 out notifying the appropriate law enforcement agency that 

2 has jurisdiction over the violations. 

3 (f) INTERVIEWS.—Any arrangements for aliens to be 

4 held or interviewed by investigators or attorneys for the 

5 Department of Labor, the State labor department, the Na6 tional Labor Relations Board, or any other agencies or 

7 entities that enforce labor or employment laws will be de8 termined on a case-by-case basis. 

9 SEC. 319. PROTECTION OF WITNESSES. 

10 Chapter 8 of title II of the Immigration and Nation11 ality Act (8 U.S.C. 1151 et seq.) is amended by adding 

12 after section 280 the following: 

13 ‘‘STAY OF REMOVAL

14 ‘‘SEC. 280A. (a) An alien against whom removal pro15 ceedings have been initiated pursuant to chapter 4, who 

16 has filed a workplace claim or who is a material witness 

17 in any pending or anticipated proceeding involving a work18 place claim, shall be entitled to a stay of removal and to 

19 an employment authorized endorsement unless the De20 partment of Labor established by a preponderance of the 

21 evidence in proceedings before the immigration judge pre22 siding over that alien’s removal hearing that— 

23 ‘‘(1) the Department of Homeland Security ini24 tiated the alien’s removal proceeding for wholly inde25 pendent reasons and not in any respect based on, or 

26 as a result of, any information provided to or ob-
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•S 2381 IS 

1 tained by the Department of Homeland Security 

2 from the alien’s employer, from any outside source, 

3 including any anonymous source, or as a result of 

4 the filing or prosecution of the workplace claim; and 

5 ‘‘(2) the workplace claim was filed in a bad 

6 faith intent to delay or avoid the alien’s removal. 

7 ‘‘(b) Any stay of removal or work authorization 

8 issued pursuant to subsection (a) shall remain valid and 

9 in effect at least during the pendency of the proceedings 

10 concerning such workplace claim. The Secretary of Home11 land Security shall extend such relief for a period of not 

12 longer than 3 additional years upon determining that— 

13 ‘‘(1) such relief would enable the alien asserting 

14 the workplace claim to be made whole; 

15 ‘‘(2) the deterrent goals of any statute under16 lying the workplace claim would thereby be served; 

17 or 

18 ‘‘(3) such extension would otherwise further the 

19 interests of justice. 

20 ‘‘(c) In this section— 

21 ‘‘(1) the term ‘workplace claim’ shall include 

22 any claim, charge, complaint, or grievance filed with 

23 or submitted to the employer, a Federal or State 

24 agency or court, or an arbitrator, to challenge an 

25 employer’s alleged civil or criminal violation of any 
80 

•S 2381 IS 

1 legal or administrative rule or requirement affecting 

2 the terms or conditions of its workers’ employment, 

3 the treatment of workers, or the hiring or firing of 

4 its workers; and 

5 ‘‘(2) the term ‘material witness’ means an indi6 vidual who presents an affidavit from an attorney 

7 prosecuting or defending the workplace claim or 

8 from the presiding officer overseeing the workplace 

9 claim attesting that, to the best of the affiant’s 

10 knowledge and belief, reasonable cause exists to be11 lieve that the testimony of the individual will be cru12 cial to the outcome of the workplace claim. 

13 ‘‘CONFIDENTIALITY OF IMMIGRATION INFORMATION

14 OBTAINED DURING ADMINISTRATIVE PROCEEDINGS

15 ‘‘SEC. 280B. (a) No officer or employee, including 

16 any former officer or employee, of any Federal or State 

17 administrative agency with jurisdiction over any employ18 er’s workplace shall disclose to the Department of Home19 land Security, or cause to be published in a manner that 

20 discloses to the Department of Homeland Security, any 

21 information concerning the immigration status of any 

22 worker obtained by that officer or employee in connection 

23 with the official duties of that officer or employee, and 

24 the Department of Homeland Security shall not, in any 

25 enforcement action or removal proceeding, use or rely 

26 upon, in whole or in part, any information so obtained. 
81 

•S 2381 IS 

1 ‘‘(b) Any person who knowingly uses, publishes, or 

2 permits information to be used in violation of subsection 

3 (a) shall be fined not more than $10,000.’’. 

4 SEC. 320. DOCUMENT FRAUD. 

5 Section 274C(d)(3) of the Immigration and Nation6 ality Act (8 U.S.C. 1324c(d)(3)) is amended by inserting 

7 before ‘‘In applying this subsection’’ the following: ‘‘The 

8 civil penalties set forth in subparagraphs (A) and (B) shall 

9 be tripled in the case of any commercial enterprise that 

10 commits any violation of subsection (a) principally for 

11 commercial advantage or financial gain.’’. 

12 SEC. 321. CONTINUED APPLICATION OF BACKPAY REM13 EDIES. 

14 (a) IN GENERAL.—Section 274A(h) of the Immigra15 tion and Nationality Act (8 U.S.C. 1324a(h)) is amended 

16 by adding at the end the following: 

17 ‘‘(4) BACKPAY REMEDIES.—Backpay or other 

18 monetary relief for unlawful employment practices 

19 shall not be denied to a present or former employee 

20 as a result of the employer’s or employee’s— 

21 ‘‘(A) failure to comply with the require22 ments of this section; or 

23 ‘‘(B) violation of a provision of Federal law 

24 related to the employment verification system 
82 

•S 2381 IS 

1 described in subsection (b) in establishing or 

2 maintaining the employment relationship.’’. 

3 (b) EFFECTIVE DATE.—The amendment made by 

4 subsection (a) shall apply to any failure to comply or any 

5 violation that occurs prior to, on, or after the date of en6 actment of this Act. 

7 SEC. 322. UNFAIR IMMIGRATION-RELATED EMPLOYMENT 

8 PRACTICES. 

9 Section 274B of the Immigration and Nationality Act 

10 (8 U.S.C. 1324b) is amended— 

11 (1) in subsection (a)(5)— 

12 (A) by striking ‘‘Prohibition of intimida13 tion or retaliation.—It is also’’ and inserting 

14 ‘‘Prohibition of intimidation, retaliation, or un15 lawful discrimination in employment.— 

16 ‘‘(A) IN GENERAL.—It is’’; and 

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

18 ‘‘(B) PROHIBITION ON THREATS OF RE19 MOVAL.—It is an unfair immigration-related 

20 employment practice for any employer, directly 

21 or indirectly, to threaten any individual with re22 moval or any other adverse consequence or legal 

23 process pertaining to the immigration status or 

24 benefits of that individual for the purpose of— 
83 

•S 2381 IS 

1 ‘‘(i) intimidating, pressuring, or coerc2 ing any such individual not to exercise any 

3 right protected by Federal or State labor 

4 or employment law, including section 7 of 

5 the National Labor Relations Act (29 

6 U.S.C. 157); or 

7 ‘‘(ii) retaliating against any such indi8 vidual for having exercised, or having stat9 ed an intention to exercise, any such right. 

10 ‘‘(C) PROHIBITION ON UNLAWFUL DIS11 CRIMINATION.—It is an unfair immigration-re12 lated employment practice for any employer, ex13 cept to the extent specifically authorized or re14 quired by law, to discriminate in any term or 

15 condition of employment against any individual 

16 employed by such employer on the basis of the 

17 immigration status of such individual.’’; 

18 (2) in subsection (c)— 

19 (A) in paragraph (2)— 

20 (i) by striking ‘‘The’’ and inserting 

21 the following: 

22 ‘‘(A) IN GENERAL.—The’’; and 

23 (ii) by adding at the end the fol24 lowing: 

25 ‘‘(B) DISCLOSURES.— 
84 

•S 2381 IS 

1 ‘‘(i) IN GENERAL.—The Special Coun2 sel shall not disclose to any government 

3 agency or employee, and shall not cause to 

4 be published in a manner that discloses to 

5 any government agency or employee, any 

6 information obtained in any manner by the 

7 Special Counsel concerning the immigra8 tion status of any individual who has filed 

9 a charge under this section or the identity 

10 of any individual or entity that is a party 

11 or witness to a proceeding brought pursu12 ant to such a charge. 

13 ‘‘(ii) RELIANCE ON INFORMATION.— 

14 The Department of Labor shall not rely, in 

15 whole or in part in any enforcement action 

16 or removal proceeding, upon any informa17 tion obtained as a result of the filing or 

18 prosecution of an unfair immigration-re19 lated employment practice charge. 

20 ‘‘(C) VIOLATION.—Any person who knowingly 

21 uses, publishes, or permits information to be used in 

22 violation of subparagraph (B) shall be fined not 

23 more than $10,000.’’; and 

24 (B) by adding at the end the following: 
85 

•S 2381 IS 

1 ‘‘(5) SPECIAL COUNSEL DEFINITION.—In this 

2 subsection, the term ‘Special Counsel’ includes indi3 viduals formerly appointed to the position of Special 

4 Counsel and any current or former employee of the 

5 Office of the Special Counsel.’’; 

6 (3) in subsection (d)(3), by striking ‘‘180 days’’ 

7 and inserting ‘‘1 year’’; 

8 (4) in subsection (g)(2)— 

9 (A) in subparagraph (B)— 

10 (i) in clause (iii), by inserting before 

11 the semicolon the following: ‘‘, or to make 

12 whole (including by requiring reinstate13 ment where appropriate) any individual 

14 who has been injured in his or her person 

15 or property by reason of any unfair immi16 gration-related employment practice’’; and 

17 (ii) in clause (iv)— 

18 (I) in subclause (I), by striking 

19 ‘‘not less than $250 and not more 

20 than $2,000’’ and inserting ‘‘not less 

21 than $500 and not more than 

22 $4,000’’; 

23 (II) in subclause (II), by striking 

24 ‘‘not less than $2,000 and not more 

25 than $5,000’’ and inserting ‘‘not less 
86 

•S 2381 IS 

1 than $4,000 and not more than 

2 $10,000’’; 

3 (III) in subclause (III), by strik4 ing ‘‘not less than $3,000 and not 

5 more than $10,000’’ and inserting 

6 ‘‘not less than $6,000 and not more 

7 than $20,000’’; and 

8 (IV) by striking subclause (IV) 

9 and inserting the following: 

10 ‘‘(IV) in the case of an unfair immi11 gration-related employment practice de12 scribed in subparagraph (B) or (C) of sub13 section (a)(5), if the person or entity has 

14 been found by a Federal or State agency 

15 or court of competent jurisdiction, at any 

16 time during the preceding 5 years, to have 

17 committed violations affecting 2 or more 

18 workers of any Federal or State statute 

19 proscribing workplace discrimination, re20 quiring the payment of wages or benefits, 

21 protecting the right to engage in concerted 

22 activities for the purpose of mutual aid or 

23 protection, or mandating the protection of 

24 worker safety of health, to pay a civil pen25 alty of not less than $5,000 and not more 
87 

•S 2381 IS 

1 than $20,000 for each individual discrimi2 nated against, and in addition, to pay a 

3 fine equivalent to the sum required to be 

4 paid to the individual discriminated 

5 against pursuant to clause (i).’’; and 

6 (B) in subparagraph (C)— 

7 (i) by striking ‘‘two years’’ and insert8 ing ‘‘3 years’’; and 

9 (ii) by striking ‘‘or the payment to an 

10 individual of any backpay,’’; 

11 (5) in subsection (h), by striking ‘‘, if the losing 

12 party’s argument is without reasonable foundation 

13 in law and fact’’; 

14 (6) in subsection (j)(4), by striking ‘‘but only if 

15 the losing party’s argument is without reasonable 

16 foundation in law and fact’’; and 

17 (7) in subsection (l), by striking ‘‘Not later 

18 than 3 months after the date of enactment of this 

19 subsection’’ and inserting ‘‘Not later than 3 months 

20 after the date of the enactment of the S.O.L.V.E. 

21 Act of 2004’’. 

22 SEC. 323. TEMPORARY WORKERS PROGRAM COMMISSION. 

23 (a) ESTABLISHMENT OF COMMISSION.— 

24 (1) ESTABLISHMENT.—There is established a 

25 commission to be known as the Temporary Worker 
88 

•S 2381 IS 

1 Programs Commission (hereafter in this section re2 ferred to as the ‘‘Commission’’). 

3 (2) PURPOSE.—The purpose of the Commission 

4 is to study the temporary worker programs created 

5 under this title, their effect on the security of the 

6 United States, the United States workforce, busi7 nesses, workers participating in such programs, and 

8 their countries of origin, and make recommendations 

9 to Congress with respect to such programs. 

10 (3) MEMBERSHIP OF COMMISSION.— 

11 (A) COMPOSITION.—The Commission shall 

12 be composed of 14 members as follows: 

13 (i) 3 members shall be appointed by 

14 the Majority Leader of the Senate. 

15 (ii) 3 members shall be appointed by 

16 the Speaker of the United States House of 

17 Representatives. 

18 (iii) 3 members shall be appointed by 

19 the Minority Leader of the Senate. 

20 (iv) 3 members shall be appointed by 

21 the Minority Leader of the United States 

22 House of Representatives. 

23 (v) 1 member shall be a designee of 

24 the Secretary of Labor. 
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•S 2381 IS 

1 (vi) 1 member shall be a designee of 

2 the Secretary of Homeland Security. 

3 (B) QUALIFICATIONS OF MEMBERS.— 

4 (i) APPOINTMENTS.—Persons who are 

5 appointed under subparagraph (A) shall be 

6 persons who have expertise in economics, 

7 demography, labor, business, immigration 

8 and immigration law, national security, or 

9 other pertinent qualifications or experience. 

10 (ii) OTHER CONSIDERATIONS.—In ap11 pointing Commission members, every effort 

12 shall be made to ensure that the mem13 bers— 

14 (I) are representative of a broad 

15 cross-section of perspectives within 

16 the United States, including the pub17 lic and private sectors, academics, im18 migrant leaders and advocates, and 

19 law enforcement and security experts; 

20 and 

21 (II) provide fresh insights to ex22 amining the temporary worker pro23 grams. 

24 (4) PERIOD OF APPOINTMENT; VACANCIES.— 
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•S 2381 IS 

1 (A) IN GENERAL.—Members shall be ap2 pointed not later than 120 days after the enact3 ment of this Act and the appointment shall be 

4 for the life of the Commission. 

5 (B) VACANCIES.—Any vacancy in the 

6 Commission shall not affect its powers, but 

7 shall be filled in the same manner as the origi8 nal appointment. 

9 (5) INITIAL MEETING.— Not later than 60 days 

10 after the date on which all members of the Commis11 sion have been appointed, the Commission shall hold 

12 its first meeting. 

13 (6) MEETINGS.—The Commission shall meet at 

14 the call of the Chairperson. 

15 (7) CHAIRPERSON AND VICE CHAIRPERSON.— 

16 The members of the Commission shall elect a chair17 person and vice chairperson from among the mem18 bers of the Commission. 

19 (8) QUORUM.—A majority of the members of 

20 the Commission shall constitute a quorum for the 

21 transaction of business. 

22 (9) VOTING.—Each member of the Commission 

23 shall be entitled to 1 vote, which shall be equal to 

24 the vote of every other member of the Commission. 
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•S 2381 IS 

1 (10) COMPENSATION AND EXPENSES.—The 

2 members of the Commission shall not receive com3 pensation for the performance of services for the 

4 Commission, but shall be allowed travel expenses, in5 cluding per diem in lieu of subsistence, at rates au6 thorized for employees of agencies under subchapter 

7 I of chapter 57 of title 5, United States Code, while 

8 away from their homes or regular places of business 

9 in the performance of services for the Commission. 

10 (11) STAFF.—The Chair, in accordance with 

11 rules agreed upon by the Commission, may appoint 

12 and fix the compensation of an executive director, 

13 staff members, and such other personnel as may be 

14 necessary to enable the Commission to carry out its 

15 functions, without regard to the provisions of title 5, 

16 United States Code, governing appointments in the 

17 competitive services, and without regard to the pro18 visions of chapter 51 and subchapter III of chapter 

19 53 of such title, relating to classification and Gen20 eral Schedule pay rates, except that no rate of pay 

21 fixed under this paragraph may exceed the equiva22 lent of that payable for a position at level V of the 

23 Executive Schedule under section 5316 of such title. 

24 (12) DETAILEES.—Any Federal Government 

25 employee may be detailed to the Commission without 
92 

•S 2381 IS 

1 reimbursement from the Commission, and such 

2 detailee shall retain the rights, status, and privileges 

3 of his or her regular employment without interrup4 tion. 

5 (13) CONSULTANT SERVICES.—The Commis6 sion is authorized to procure the services of experts 

7 and consultants in accordance with section 3109 of 

8 title 5, United States Code, but at rates not to ex9 ceed the daily rate paid a person occupying a posi10 tion at level IV of the Executive Schedule under sec11 tion 5315 of title 5, United States Code. 

12 (b) ADMINISTRATIVE PROVISIONS.— 

13 (1) INFORMATION FROM FEDERAL AGENCIES.— 

14 The Commission may secure directly from any Fed15 eral department or agency such information, sugges16 tions, estimates, and statistics as the Commission 

17 considers necessary to carry out the provisions of 

18 this section. Upon request of the Commission, the 

19 head of such department or agency shall furnish 

20 such information to the Commission. 

21 (2) HEARINGS.—The Commission may hold 

22 such hearings, sit and act at such times and places, 

23 take such testimony, and receive such evidence as 

24 the Commission considers advisable to carry out the 

25 objectives of this section, except that, to the extent 
93 

•S 2381 IS 

1 possible, the Commission shall use existing data and 

2 research. The Commission shall provide all interested 

3 parties an opportunity for input regarding the duties 

4 into the fact-finding undertaken pursuant to their 

5 knowledge and expertise 

6 (3) POSTAL SERVICES.—The Commission may 

7 use the United States mails in the same manner and 

8 under the same conditions as departments and agen9 cies of the Federal Government. 

10 (4) ASSISTANCE FROM FEDERAL AGENCIES.— 

11 The Administrator of General Services shall provide 

12 to the Commission on a reimbursable basis adminis13 trative support and other services for the perform14 ance of the Commission’s functions. The depart15 ments and agencies of the United States may pro16 vide to the Commission such services, funds, facili17 ties, staff, and other support services as they may 

18 determine advisable and as may be authorized by 

19 law. 

20 (c) REPORTS.—Not later than 3 years after all of the 

21 members are appointed to the Commission, the Commis22 sion shall submit to the Congress, the Secretary of Labor, 

23 and the Secretary of Homeland Security a preliminary re24 port that summarizes the directions of the Commission 

25 and initial recommendations. Not later than 5 years after 
94 

•S 2381 IS 

1 the Commission members are appointed, the Commission 

2 shall submit to the Congress, the Secretary of Labor, and 

3 the Secretary of Homeland Security a report that contains 

4 the findings of the Commission and makes such rec5 ommendations as are consistent with the purpose and du6 ties of the Commission, including recommendations for 

7 legislative and administrative actions to implement the 

8 conclusions of the Commission. 

9 (d) DUTIES OF THE COMMISSION.—The Commission 

10 shall examine— 

11 (1) the effect that the employment of workers 

12 described in clause (ii)(b) or (i)(d) of section 

13 101(a)(15)(H) of the Immigration and Nationality 

14 Act (8 U.S.C. 1101(a)(15)(H)) has on the national 

15 security of the United States, including the impact 

16 such programs have had on screening aliens seeking 

17 admission at the U.S. borders and ports of entry; 

18 (2) the effect that the employment of workers 

19 described in clause (ii)(b) or (i)(d) of section 

20 101(a)(15)(H) of the Immigration and Nationality 

21 Act (8 U.S.C. 1101(a)(15)(H)) has on the United 

22 States workforce, including the wages, employment 

23 and working conditions of United States workers; 

24 whether actual shortages existed for the positions 

25 sought to be filled, alternative methods to address 
95 

•S 2381 IS 

1 skill shortages, and whether the positions filled 

2 under the programs were actually temporary; 

3 (3) the effect that the employment of workers 

4 described in clause (ii)(b) or (i)(d) of section 

5 101(a)(15)(H) of the Immigration and Nationality 

6 Act (8 U.S.C. 1101(a)(15)(H)) has on United States 

7 businesses, including any alleviation of workforce 

8 shortages or creation of new jobs; 

9 (4) the effect that the employment of workers 

10 described in clause (ii)(b) or (i)(d) of section 

11 101(a)(15)(H) of the Immigration and Nationality 

12 Act (8 U.S.C. 1101(a)(15)(H)) has on such workers, 

13 including the wages and working conditions of such 

14 workers; 

15 (5) the effect that the employment of workers 

16 described in clause (ii)(b) or (i)(d) of section 

17 101(a)(15)(H) of the Immigration and Nationality 

18 Act (8 U.S.C. 1101(a)(15)(H)) has on the countries 

19 of origin of such workers, including the impact of re20 mittances, economic development, and brain drain 

21 on such countries; 

22 (6) the adequacy and accuracy of the current 

23 wage calculation system, and whether changes are 

24 needed to improve such system, including the Occu25 pational Employment System survey, its calculation 
96 

•S 2381 IS 

1 of wage data based on skill and experience levels, 

2 difference among types of employers (specifically for3 profit and nonprofit, and government and non-gov4 ernment) and the use of private, independent wage 

5 surveys; 

6 (7) the adequacy of past labor certification sys7 tems under the H–2b program, in comparison to the 

8 labor attestation system created by this title; wheth9 er changes are needed to improve such system; and 

10 recommendations for such improvements; 

11 (8) the factors necessary to develop and imple12 ment an appropriate labor market test governing the 

13 temporary worker programs described in this sec14 tion, including measures related to unemployment 

15 levels that are geographic and occupational-specific, 

16 and median wages in the occupations and vacancy 

17 rates; and make recommendations to promulgate 

18 such a labor market test; 

19 (9) the current enforcement mechanisms con20 tained in the temporary worker programs and 

21 whether changes are needed to improve the inves22 tigation and enforcement of violations; 

23 (10) any other recommendations that are war24 ranted. 
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•S 2381 IS 

1 (e) AUTHORIZATION OF APPROPRIATIONS.—There 

2 are authorized to be appropriated such sums as may be 

3 necessary to carry out the provisions of this section. 

4 SEC. 324. SUBMISSION TO CONGRESS OF INFORMATION RE5 GARDING H–2B AND H–1D NONIMMIGRANTS. 

6 Section 416 of the American Competitiveness and 

7 Workforce Improvement Act of 1998 (title IV of division 

8 C of Public Law 105–277; 8 U.S.C. 1184 note) is amend9 ed— 

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

11 that term appears and inserting ‘‘Secretary of 

12 Homeland Security’’; and 

13 (2) by adding at the end the following new sub14 section: 

15 ‘‘(d) PROVISION OF INFORMATION.— 

16 ‘‘(1) QUARTERLY NOTIFICATION.—Beginning 

17 not later than December 1, 2005, the Secretary of 

18 Homeland Security shall notify, on a quarterly basis, 

19 the Committees on the Judiciary of the House of 

20 Representatives and the Senate of the numbers of 

21 aliens who during the preceding 3-month period— 

22 ‘‘(A) were issued visas or otherwise pro23 vided nonimmigrant status under clause (i)(d) 

24 or (ii)(b) of section 101(a)(15)(H) of the Immi-
98 

•S 2381 IS 

1 gration and Nationality Act (8 U.S.C. 

2 1101(a)(15)(H)); or 

3 ‘‘(B) had such a visa or such status expire 

4 or be revoked or otherwise terminated. 

5 ‘‘(2) ANNUAL SUBMISSION.—Beginning with 

6 fiscal year 2006, the Secretary of Homeland Secu7 rity shall submit on an annual basis, to the Commit8 tees on the Judiciary of the House of Representa9 tives and the Senate— 

10 ‘‘(A) information on the countries of origin 

11 and occupations of, and compensation paid to, 

12 aliens who were issued visas or otherwise pro13 vided nonimmigrant status under clause (i)(d) 

14 or (ii)(b) of section 101(a)(15)(H) of the Immi15 gration and Nationality Act (8 U.S.C. 

16 1101(a)(15)(H)) during the previous fiscal 

17 year; 

18 ‘‘(B) the number of aliens who during each 

19 month of such fiscal year had such a visa or 

20 such status expire or be revoked or otherwise 

21 terminated; 

22 ‘‘(C) the number of aliens who were pro23 vided nonimmigrant status under such section 

24 during both such fiscal year and the fiscal year 

25 preceding such fiscal year; and 
99 

•S 2381 IS 

1 ‘‘(D) the number of aliens provided non2 immigrant status under such section who adjust 

3 status to lawful permanent residence based on 

4 a petition filed by an employer or a self-peti5 tion.’’. 

Æ