(2) in subsection (a), by striking ‘‘Any alien’’ 
and inserting ‘‘Except as provided in subsection (b), 
any alien’’; 
(3) in subsection (a), by striking ‘‘or’’ before 
(3) and by inserting after ‘‘concealment of a mate-
rial fact,’’ the following: ‘‘or (4) is otherwise present 
in the United States in violation of the immigration 
laws or the regulations prescribed thereunder,’’; 
(4) in subsection (a), by striking ‘‘6 months’’ 
and inserting ‘‘one year and a day’’; 
(5) in subsection (c)— 
(A) by striking ‘‘5 years’’ and inserting 
‘‘10 years’’; and 
(B) by adding at the end the following: 
‘‘An offense under this subsection continues 
until the fraudulent nature of the marriage is 
discovered by an immigration officer.’’; 
(6) in subsection (d)— 
(A) by striking ‘‘5 years’’ and inserting 
‘‘10 years’’; 
(B) by adding at the end the following: 
‘‘An offense under this subsection continues 
until the fraudulent nature of the commercial 
enterprise is discovered by an immigration offi-
cer’’; and
(7) by adding at the end the following new sub-
sections: 
‘‘(e)(1) Any alien described in paragraph (2)— 
‘‘(A) shall be fined under title 18, United 
States Code, imprisoned not more than 10 years, or 
both, if the offense described in such paragraph was 
committed subsequent to a conviction or convictions 
for commission of three or more misdemeanors in-
volving drugs, crimes against the person, or both, or 
a felony (other than an aggravated felony); or 
‘‘(B) shall be fined under title 18, United 
States Code, imprisoned not more than 20 years, or 
both, if such offense was committed subsequent to a 
conviction for commission of an aggravated felony. 
‘‘(2) An alien described in this paragraph is an alien 
who— 
‘‘(A) enters or attempts to enter the United 
States at any time or place other than as designated 
by immigration officers; 
‘‘(B) eludes examination or inspection by immi-
gration officers; 
‘‘(C) attempts to enter or obtains entry to the 
United States by a willfully false or misleading rep-
resentation or the willful concealment of a material 
fact; or
‘‘(D) is otherwise present in the United States 
in violation of the immigration laws or the regula-
tions prescribed thereunder. 
‘‘(3) The prior convictions in subparagraph (A) or 
(B) of paragraph (1) are elements of those crimes and 
the penalties in those subparagraphs shall apply only in 
cases in which the conviction (or convictions) that form 
the basis for the additional penalty are alleged in the in-
dictment or information and are proven beyond a reason-
able doubt at trial or admitted by the defendant in plead-
ing guilty. Any admissible evidence may be used to show 
that the prior conviction is an aggravated felony or other 
qualifying crime, and the criminal trial for a violation of 
this section shall not be bifurcated. 
‘‘(4) An offense under subsection (a) or paragraph 
(1) of this subsection continues until the alien is discov-
ered within the United States by immigration officers. 
‘‘(f) For purposes of this section, the term ‘attempts 
to enter’ refers to the general intent of the alien to enter 
the United States and does not refer to the intent of the 
alien to violate the law.’’. 
SEC. 204. REENTRY OF REMOVED ALIENS. 
Section 276 of the Immigration and Nationality Act 
(8 U.S.C. 1326) is amended— 
(1) in subsection (a)—
(A) in paragraph (2), by striking all that 
follows ‘‘United States’’ and inserting a comma; 
(B) in the matter following paragraph (2), 
by striking ‘‘imprisoned not more than 2 
years,’’ and insert ‘‘imprisoned for a term of 
not less than 1 year and not more than 2 
years,’’; 
(C) by adding at the end the following: ‘‘It 
shall be an affirmative defense to an offense 
under this subsection that (A) prior to an 
alien’s reembarkation at a place outside the 
United States or an alien’s application for ad-
mission from foreign contiguous territory, the 
Secretary of Homeland Security has expressly 
consented to the alien’s reapplying for admis-
sion; or (B) with respect to an alien previously 
denied admission and removed, such alien was 
not required to obtain such advance consent 
under this Act or any prior Act.’’; 
(2) in subsection (b)— 
(A) in paragraph (1), by striking ‘‘impris-
oned not more than 10 years,’’ and insert ‘‘im-
prisoned for a term of not less than 5 years and 
not more than 10 years,’’;