203
(d) CUBAN OR HAITIAN ENTRANT.—In applying this section, a Cuban or
Haitian entrant described by section 13151(1) or (2)(A) of this title is
deemed to have entered the United States and to be in an unlawful status
in the United States.
§ 9303. Applications for change of status to alien lawfully
admitted for temporary residence
(a) CONTENTS.—An application for a change of status under section
9302(a) of this title shall contain information the Attorney General re-
quires, including information on each living relative of the applicant with
respect to whom the applicant may file a petition at a later date under sec-
tion 4301 (a) or (b) of this title.
(b) WHO MAY RECEIVE APPLICATIONS.—The Attorney General shall pro-
vide that an application for a change of status under section 9302(a) of this
title may be filed with the Attorney General or with an entity designated
under subsection (c) of this section if the applicant consents to having the
application forwarded to the Attorney General.
(c) DESIGNATING ENTITIES TO RECEIVE APPLICATIONS.—To assist in
the legalization program under this chapter, the Attorney General—
(1) shall designate qualified voluntary organizations and other quali-
fied State, local, and community organizations; and
(2) may designate other persons the Attorney General decides are
qualified and have substantial experience, demonstrated competence,
and traditional long-term involvement in preparing and submitting ap-
plications for a change of status under section 5107 or 9101 of this
title, the Act of November 2, 1966 (Public Law 89–732, 80 Stat.
1161), or the Act of October 28, 1977 (Public Law 95–145, 91 Stat.
1223).
(d) TREATMENT OF APPLICATIONS BY DESIGNATED ENTITIES.—An en-
tity designated under subsection (c) of this section must agree to forward
to the Attorney General only those applications filed with it under sub-
section (b) of this section that the applicants consent to being forwarded.
An entity may not make a decision under this chapter required to be made
by the Attorney General.
§ 9304. Change of status from temporary residence to per-
manent residence
(a) REQUIREMENTS.—The Attorney General shall change the status of an
alien lawfully admitted for temporary residence under section 9302 of this
title to that of an alien lawfully admitted for permanent residence if the
alien—
204
(1) applies for the change during the 2-year period beginning with
the 19th month that begins after the alien acquired the status of an
alien lawfully admitted for temporary residence;
(2) has resided continuously in the United States since the alien ac-
quired the status of an alien lawfully admitted for temporary residence;
(3) is admissible as an immigrant, except as provided by sections
9305 and 9306 of this title;
(4) has not been convicted of a felony or of not more than 2 mis-
demeanors committed in the United States; and
(5)(A) meets the requirements of section 20301(a) (7) and (8) of
this title; or
(B) is pursuing satisfactorily a course of study, recognized by the At-
torney General, to meet the requirements of section 20301(a) (7) and
(8) of this title.
(b) EXCEPTIONS.—(1) An alien does not violate the continuous residence
requirement of subsection (a)(2) of this section because of an absence from
the United States allowed under section 9302(b) of this title.
(2) The Attorney General may waive any part of the requirements of sub-
section (a)(5) of this section for an alien who is at least 65 years of age
or developmentally disabled.
(c) RELATION
TO NATURALIZATION EXAMINATION.—An alien dem-
onstrating under subsection (a)(5)(A) of this section that the alien meets
the requirements of section 20301(a) (7) and (8) of this title may be
deemed to have satisfied those requirements for becoming naturalized as a
citizen of the United States under subtitle V of this title.
§ 9305. Medical examination
An alien must undergo, at the alien’s expense, an appropriate medical ex-
amination (including establishing the alien’s immunization status) that com-
plies with generally accepted professional standards of medical practice be-
fore a decision on the alien’s admissibility under sections 9302(a)(6),
9304(a)(3), and 9311(2) of this title may be made.
§ 9306. Nonapplication and waiver of certain provisions of
law
(a) GROUNDS OF EXCLUSION THAT DO NOT APPLY OR THAT MAY BE
WAIVED.—When the Attorney General is deciding on an alien’s admissibility
under sections 9302(a)(6), 9304(a)(3), and 9311(2) of this title—
(1) sections 4104(c)(2), (d)(3), and (g) (1) and (2), 4311(a), 6313,
and 9106 of this title do not apply; and
(2) except as provided by subsection (b) of this section, the Attorney
General may waive section 2121(a) and subchapter I of chapter 63 of
this title for an individual alien—
205
(A) for humanitarian purposes;
(B) to ensure family unity; or
(C) when otherwise in the public interest.
(b) GROUNDS THAT MAY NOT BE WAIVED.—Notwithstanding subsection
(a)(2) of this section, the Attorney General may not waive—
(1) section 6304(a) of this title to the extent it is related to an appli-
cation for a change of status to an alien lawfully admitted for perma-
nent residence, except that section 6304(a) may be waived for an alien
who is or was an aged, blind, or disabled individual (as defined by sec-
tion 1614(a)(1) of the Social Security Act (42 U.S.C. 1382c(a)(1)));
(2) section 6307(a)(1)–(4) of this title, except as section 6307(a)(3)
is related to a single offense of simple possession of not more than 30
grams of marijuana; or
(3) section 6308 or 6309 of this title.
(c) SPECIAL RULE
FOR DECIDING WHETHER ALIENS ARE PUBLIC
CHARGES.—An alien is not ineligible for a change of status under this chap-
ter because of inadmissibility under section 6304(a) of this title if the alien
demonstrates a history of employment in the United States showing self-
support without reliance on public cash assistance.
§ 9307. Fees
(a) FEE SCHEDULE.—The Attorney General shall establish a schedule of
fees for applying for a change of status under section 9302 or 9304 of this
title. The Attorney General shall provide for an additional fee for applying
for a change of status under section 9304 of this title after the end of the
first year of the 2-year period described by section 9304(a)(1) of this title.
(b) USE OF FEES.—The Attorney General shall deposit amounts received
under subsection (a) of this section in a separate account. The amounts may
be used, without fiscal year limitation, for expenses related to reviewing ap-
plications filed under section 9302 or 9304 of this title. Capital assets ac-
quired with amounts in the account are available for the general use of the
Immigration and Naturalization Service when the assets are not needed for
activities related to reviewing those applications.
§ 9308. Confidentiality of information
(a) LIMITATION ON ACCESS.—A record of an entity designated under sec-
tion 9303(c) of this title, related to an alien seeking assistance or informa-
tion about filing an application under this chapter, is confidential. The At-
torney General may have access to the record only with the consent of the
alien.
(b) LIMITATIONS ON USE.—The Attorney General or an officer or em-
ployee of the Department of Justice—
206
(1) may use information provided by making an application under
this chapter only—
(A) to make a decision on the application; or
(B) to enforce section 10155 of this title;
(2) may disclose information provided under this chapter in the same
way that census information may be disclosed under section 8 of title
13;
(3) may not make a publication that allows the information provided
by a particular individual to be identified; and
(4) may allow only a sworn officer or employee of the Department
or of an entity designated under section 9303(c) of this title (for an
application filed with the entity) to examine an application.
§ 9309. Temporary stay of deportation
(a) If an alien was apprehended before May 5, 1987, and could have es-
tablished a prima facie case of eligibility for a change of status under sec-
tion 9302 of this title, except that the alien could not apply for the adjust-
ment before May 5, 1987, the Attorney General shall provide that, unless
the alien had an opportunity after May 4, 1987, and before June 4, 1987,
to complete the filing of an application for a change of status, the alien—
(1) may not be deported;
(2) may work in the United States; and
(3) shall be provided an ‘‘employment authorized’’ endorsement or
other appropriate work permit.
(b) If an alien presented a prima facie application for a change of status
under section 9302 of this title after May 4, 1987, and before May 5, 1988,
the Attorney General shall provide that, until a final decision has been made
on the application, the alien—
(1) may not be deported;
(2) may work in the United States; and
(3) shall be provided an ‘‘employment authorized’’ endorsement or
other appropriate work permit.
§ 9310. Temporary ineligibility to receive certain assistance
(a) PERIOD OF INELIGIBILITY.—(1) Except as provided by paragraphs
(3) and (4) of this subsection and subsection (b) of this section, an alien
who acquires the status of an alien lawfully admitted for temporary resi-
dence under section 9302 of this title is not eligible for the following, during
the 5–year period beginning on the date the alien was granted the status:
(A) financial assistance under the program of aid to families with
dependent children under part A of title IV of the Social Security Act
(42 U.S.C. 601 et seq.).
(B) any other program of financial assistance—
207
(i) provided under a law of the United States on a financial-
need basis; and
(ii) identified by the Attorney General in consultation with the
heads of other agencies.
(C) medical assistance under a State plan approved under title XIX
of the Social Security Act (42 U.S.C. 1396 et seq.).
(D) assistance under the Food Stamp Act of 1977 (7 U.S.C. 2011
et seq.).
(2) To the extent consistent with this subsection and subsection (b) of
this section, a State or political subdivision of a State may provide that the
alien is not eligible for financial assistance referred to in paragraph (1) (A)
and (B) of this subsection or for medical assistance referred to in paragraph
(1)(C) of this subsection provided under a law of the State or political sub-
division.
(3) Paragraph (1) of this subsection does not apply to—
(A) a Cuban or Haitian entrant (as defined by section 501(e)(1) or
(2)(A) of the Refugee Education Assistance Act of 1980 (Public Law
96–422, 94 Stat. 1810) as in effect on April 1, 1983); or
(B) assistance (except aid to families with dependent children) pro-
vided an alien who is an aged, blind, or disabled individual (as defined
by section 1614(a)(1) of the Social Security Act (42 U.S.C.
1382c(a)(1)).
(4) Assistance provided under the following laws is not financial assist-
ance referred to in paragraph (1)(B) of this subsection:
(A) title IV of the Higher Education Act of 1965 (20 U.S.C. 1070
et seq. and 42 U.S.C. 2751 et seq.).
(B) the Carl D. Perkins Vocational and Applied Technology Edu-
cation Act (20 U.S.C. 2301 et seq.).
(C) the Job Training Partnership Act (29 U.S.C. 1501 et seq.).
(D) the Public Health Service Act (42 U.S.C. 201 et seq.).
(E) titles I, X, XIV, and XVI of the Social Security Act (42 U.S.C.
301 et seq., 1201 et seq., 1351 et seq., 1381 et seq.) as in effect with-
out regard to the amendment made by section 301 of the Social Secu-
rity Amendments of 1972 (Public Law 92–603, 86 Stat. 1465).
(F) parts B, D, and E of title IV and titles V, XVI, and XX of the
Social Security Act (42 U.S.C. 620 et seq., 651 et seq., 670 et seq.,
701 et seq., 1381 et seq., 1397 et seq.).
(G) the National School Lunch Act (42 U.S.C. 1751 et seq.).
(H) the Child Nutrition Act of 1966 (42 U.S.C. 1771 et seq.).
(b) RESTRICTED MEDICAL ASSISTANCE.—(1) In this subsection—
208
(A) ‘‘medical assistance’’ means medical assistance under a State
plan approved under title XIX of the Social Security Act (42 U.S.C.
1396 et seq.); and
(B) an alien lawfully admitted for temporary residence under section
9302 of this title is deemed to be residing permanently in the United
States under color of law as long as the alien’s temporary residence
status is not changed.
(2) Except as provided by paragraph (3) of this subsection and notwith-
standing title XIX of the Social Security Act (42 U.S.C. 1396 et seq.), an
alien lawfully admitted for temporary residence under section 9302 of this
title is eligible for only the following medical assistance during the 5-year
period beginning on the date the alien is granted temporary residence sta-
tus:
(A) emergency services as provided under section 1916(a)(2)(D) of
the Social Security Act (42 U.S.C. 1396o(a)(2)(D)).
(B) services for pregnant women as described by section
1916(a)(2)(B) of the Social Security Act (42 U.S.C. 1396o(a)(2)(B)).
(3) An alien lawfully admitted for temporary residence under section
9302 of this title is eligible for any medical assistance during the 5-year
period beginning on the date the alien is granted temporary residence status
if the alien is—
(A) an alien described by subsection (a)(3) of this section; or
(B) less than 18 years of age.
(c) CHANGE IN STATUS NOT AFFECTING CERTAIN BENEFITS.—Assist-
ance under subchapter IV of chapter 131 of this title shall be continued
without regard to a change of the alien’s status under this chapter.
(d) ALIEN NOT RESIDING PERMANENTLY IN THE UNITED STATES.—Un-
less otherwise specifically provided, an alien lawfully admitted for temporary
residence under section 9302 of this title is not residing permanently in the
United States under color of law for purposes of a law of a State or political
subdivision of a State providing for a program of financial assistance.
§ 9311. Unfavorable ending of temporary residence status
The Attorney General shall end the temporary residence status granted
an alien under section 9302 of this title—
(1) if the Attorney General believes the alien was not eligible for that
status;
(2) if the alien—
(A) commits an act that makes the alien inadmissible to the
United States as an immigrant, except as provided by sections
9305 and 9306 of this title; or
209
(B) is convicted of a felony or of at least 3 misdemeanors com-
mitted in the United States; or
(3) at the end of the 43d month after the alien is granted the status,
unless the alien has applied under section 9304 of this title for a
change of status to that of an alien lawfully admitted for permanent
residence and the application has not been denied.
§ 9312. Administrative and judicial review
(a) EXCLUSIVENESS OF REVIEW.—The only administrative and judicial
reviews of a decision made under this chapter about an application for a
change of status of an alien shall be the reviews provided by this section.
(b) ADMINISTRATIVE REVIEW.—Except as provided by subsection (d) of
this section, the Attorney General shall maintain an appellate authority to
provide for a single level of administrative appellate review of a decision de-
scribed by subsection (a) of this section. The review shall be based only on
the administrative record established at the time of the decision and on ad-
ditional or newly discovered evidence not available at the time the decision
was made.
(c) JUDICIAL REVIEW.—Except as provided by subsection (d) of this sec-
tion, a decision made under this chapter denying a change of status of an
alien may be reviewed judicially only by judicial review of an order of depor-
tation under section 6535 of this title. The review shall be based only on
the administrative record established at the time of the review by the appel-
late authority. The findings of fact and decisions contained in the record
of the authority are conclusive unless the applicant establishes abuse of dis-
cretion or that the findings are directly contrary to clear and convincing
facts contained in the record considered as a whole.
(d) NO REVIEW FOR LATE FILING.—A denial of a change of status
under this chapter because an application for the change was filed late may
not be reviewed in an administrative proceeding of the United States Gov-
ernment or by a court of the United States or a State.
§ 9313. Administrative
(a) REGULATIONS.—After consulting with the Committees on the Judici-
ary of the House of Representatives and the Senate, the Attorney General
shall prescribe—
(1) regulations establishing a definition of ‘‘resided continuously’’ for
this chapter and evidence needed to establish that an alien has resided
continuously in the United States under this chapter; and
(2) other regulations necessary to carry out this chapter.
(b) CONSIDERATIONS.—In prescribing regulations under subsection (a)(1)
of this section, the Attorney General—
210
(1) shall specify individual and total periods of absence from the
United States that will break a period of continuous residence in the
United States and shall consider any absence that is only a brief and
casual trip outside the United States;
(2) shall provide that—
(A) an alien has not resided continuously in the United States
if the alien was outside the United States, during a period for
which continuous residence is required, because of a deportation
order; and
(B) time during which an alien is outside the United States
under the advance parole procedures of the Attorney General is
not part of the time during which an alien is outside the United
States under this chapter;
(3) may provide for a waiver of the periods specified in clause (1)
of this subsection if the absence is a brief temporary trip outside the
United States required by an emergency or extenuating circumstance
outside the control of the alien; and
(4) shall require that continuous residence and physical presence in
the United States be established by documents (employment-related if
available) and independent corroboration of the information the docu-
ments contain.
PART G—PENALTIES
CHAPTER 101—PENALTIES
SUBCHAPTER I—GENERAL
Sec.
10101.
Settlement, compromise, and discontinuance of certain proceedings.
SUBCHAPTER II—CIVIL PENALTIES
10111.
Violating regulations related to ports of entry for aliens arriving by aircraft.
10112.
Failure to deliver lists of passengers.
10113.
Failure to provide lists and reports about alien crewmembers.
10114.
Failure to control alien crewmembers.
10115.
Improper discharge of alien crewmembers.
10116.
Employing alien crewmembers having disabilities and diseases.
10117.
Employing alien crewmembers for certain longshore work.
10118.
Violations involving certifications for longshore work by alien crewmembers.
10119.
Bringing in aliens excludable because of health.
10120.
Bringing in aliens not having passports and visas.
10121.
Assisting unlawful entry as alien crewmembers.
10122.
Failure to prevent unauthorized landings.
10123.
Failure to detain and deport alien stowaways.
10124.
Failure to carry out orders related to detained aliens and bringing in deported aliens.
10125.
Document fraud.
10126.
Clearing vessels and aircraft.
SUBCHAPTER III—CRIMINAL PENALTIES
10141.
Violating period of conditional landing permit.
10142.
Failure to register and be fingerprinted.
10143.
Failure to carry a certificate of alien registration or alien registration receipt card.
10144.
Failure to provide addresses.
10145.
False and fraudulent registration.
10146.
Counterfeiting alien registration documents.
10147.
Bringing in and harboring aliens.
211
10148.
Improper entry of aliens.
10149.
Reentry of deported aliens.
10150.
Assisting certain excludable aliens to enter the United States.
10151.
Importing aliens for immoral purposes.
10152.
Violation of supervision pending deportation.
10153.
Willful failure to leave the United States.
10154.
Marriage to evade immigration laws.
10155.
Misrepresentations in applications for change of status.
10156.
Disclosing confidential information in applications.
10157.
Establishing a commercial enterprise to evade immigration laws.
SUBCHAPTER I—GENERAL
§ 10101. Settlement, compromise, and discontinuance of cer-
tain proceedings
A judicial proceeding for violating this title (except subchapter I of chap-
ter 5, subchapters I, III, and IV of chapter 131, chapters 133–137, and
section 13902) may be settled, compromised, or discontinued only with the
consent of the court. A settlement, compromise, or discontinuance, and the
reasons for it, shall be entered on the record.
SUBCHAPTER II—CIVIL PENALTIES
§ 10111. Violating regulations related to ports of entry for
aliens arriving by aircraft
(a) CIVIL PENALTY AND COMPROMISE.—A person violating a regulation
prescribed under section 6901 of this title is liable to the United States
Government for a civil penalty of $2,000. The Attorney General may com-
promise the amount of the penalty. A decision on a penalty or compromise
under this section is final.
(b) LIEN ON AIRCRAFT.—When the owner or individual in command of
an aircraft violates a regulation referred to in subsection (a) of this section,
the aircraft is subject to a lien for the civil penalty. The aircraft may be
seized summarily by, and placed in the custody of, a person authorized
under regulations prescribed by the Attorney General.
(c) RELEASE OF AIRCRAFT.—An aircraft seized under this section may
be released from custody—
(1) on deposit of—
(A) an amount (but not more than $2,000) prescribed by the
Attorney General; or
(B) a bond in an amount and with an insurer prescribed by the
Attorney General; and
(2) conditioned on payment of the penalty decided on by the Attor-
ney General.
(d) COLLECTION OF PENALTY.—A civil action in rem may be brought
against the aircraft to collect the civil penalty. The action shall conform as
nearly as practicable to civil actions in admiralty.
212
§ 10112. Failure to deliver lists of passengers
(a) CIVIL PENALTY.—If the Attorney General is satisfied that a person
has not delivered an accurate list of passengers as required under section
6902 of this title, the person is liable to the United States Government for
a civil penalty of $300 for each passenger for whom the list is not sworn
and delivered as required.
(b) PROHIBITION ON COMPROMISE.—The Attorney General may not com-
promise the amount of a civil penalty under this section.
§ 10113. Failure to provide lists and reports about alien
crewmembers
(a) CIVIL PENALTY.—A person not delivering a list or report required by
section 2701 or 2702 of this title is liable to the United States Government
for a civil penalty of $200 for each alien crewmember not listed or reported
as required.
(b) PROHIBITION ON COMPROMISE.—The Attorney General may not com-
promise the amount of a civil penalty under this section.
§ 10114. Failure to control alien crewmembers
(a) CIVIL PENALTY.—A person not detaining or deporting an alien crew-
member as required by section 2704 of this title is liable to the United
States Government for a civil penalty of $3,000 for each alien crewmember
not detained or deported.
(b) COMPROMISE.—The Attorney General may compromise the amount of
a civil penalty under this section to not less than $200 for each alien crew-
member involved.
§ 10115. Improper discharge of alien crewmembers
(a) CIVIL PENALTY.—If the Attorney General is satisfied that a person
has violated section 2706 of this title, the person is liable to the United
States Government for a civil penalty of $3,000 for each violation.
(b) COMPROMISE.—The Attorney General may compromise the amount of
a civil penalty under this section to not less than $1,500 for each violation.
§ 10116. Employing alien crewmembers having disabilities
and diseases
(a) CIVIL PENALTY.—The owner, agent, master, commanding officer, or
consignee of a vessel or aircraft is liable to the United States Government
for a civil penalty of $1,000 for each alien crewmember employed in viola-
tion of section 2705(a) of this title if the Attorney General is satisfied, from
an examination certified by a medical officer of the Public Health Service,
that—
(1) the crewmember was afflicted with a disability or disease referred
to in section 2705(a) of this title when the crewmember was taken on
board the vessel or aircraft; and
213
(2) the disability or disease could have been detected by a competent
medical examination.
(b) COMPROMISE.—The Attorney General may compromise the amount of
a civil penalty under this section.
§ 10117. Employing alien crewmembers for certain longshore
work
(a) CIVIL PENALTY.—An owner, agent, master, commanding officer, or
consignee of a vessel that hires an alien crewmember classified as a non-
immigrant under section 2305 of this title to perform longshore work not
included in the normal operation and service on a vessel under section 2723,
2724, or 2725 of this title is liable to the United States Government for
a civil penalty of $5,000.
(b) LIEN ON VESSEL.—A vessel referred to in subsection (a) of this sec-
tion is subject to a lien for the amount of the civil penalty.
(c) PROHIBITION ON COMPROMISE.—The Attorney General may not com-
promise the amount of a civil penalty under this section.
§ 10118. Violations involving certifications for longshore
work by alien crewmembers
If the Secretary of Labor finds under section 2723(f) of this title that
an employer has failed to meet a condition, or misrepresented a material
fact, in its attestation under section 2723(a) of this title, the Secretary may
impose a civil penalty of not more than $5,000 for each alien crewmember
the employer employs to perform unauthorized longshore work.
§ 10119. Bringing in aliens excludable because of health
(a) CIVIL PENALTY.—A person is liable to the United States Government
for a civil penalty of $3,000 for each alien the person brings to the United
States in violation of section 6906(b) of this title.
(b) PROHIBITION ON COMPROMISE.—The Attorney General may not com-
promise the amount of a civil penalty under this section.
§ 10120. Bringing in aliens not having passports and visas
(a) CIVIL PENALTY.—If the Attorney General is satisfied that a person
has brought an alien to the United States in violation of section 6906(a)
of this title, the person is liable to the United States Government for a civil
penalty of—
(1) $3,000 for each such alien; plus
(2) except for an alien admitted or allowed to land temporarily, an
amount equal to the amount the alien paid to be transported from the
initial port of departure, as shown on the alien’s ticket, to the port of
arrival.
214
(b) RETURN OF AMOUNT TO ALIEN.—The amount paid under subsection
(a)(2) of this section shall be paid to the alien brought in violation of sec-
tion 6906(a) of this title.
(c) COMPROMISE.—The Attorney General may compromise the amount of
a civil penalty under this section only if the Attorney General is satisfied
that the person, before the vessel or aircraft carrying the alien left the last
port outside the United States, did not know and could not have learned
by reasonable diligence that the individual transported was an alien required
to have a passport and visa.
(d) NONAPPLICATION.—This section does not apply to a carrier or an
owner, agent, master, commanding officer, charterer, or consignee of a ves-
sel or aircraft relying on a visa or other documentation that has been re-
voked unless reasonable notice of the revocation is received before the alien
leaves.
§ 10121. Assisting unlawful entry as alien crewmembers
(a) CIVIL PENALTY.—A person, including the owner, agent, master, com-
manding officer, or consignee of a vessel or aircraft arriving in the United
States, is liable to the United States Government for a civil penalty of not
more than $10,000 for each alien whom the person—
(1) knowingly signs on the articles of the vessel, or brings to the
United States as a crewmember of the vessel or aircraft, with intent
to allow or assist the alien to enter or land in the United States unlaw-
fully; or
(2) knowingly and falsely represents to a consular officer when the
alien applies for a visa, or to an immigration officer at the port of ar-
rival in the United States, that the alien is a crewmember.
(b) LIEN ON VESSEL OR AIRCRAFT.—A vessel or aircraft referred to in
subsection (a) of this section is subject to a lien for the civil penalty and
may be seized. A civil action in rem may be brought against the vessel or
aircraft to collect the penalty.
§ 10122. Failure to prevent unauthorized landings
(a) CIVIL PENALTY.—A person violating section 6904(a) of this title is
liable to the United States Government for a civil penalty of $3,000 for each
violation, to be imposed by the Attorney General.
(b) LIEN ON VESSEL OR AIRCRAFT.—The vessel or aircraft used in
transporting an alien landed in violation of this section is subject to a lien
for the civil penalty. A civil action in rem may be brought against the vessel
or aircraft to collect the penalty.
(c) COMPROMISE.—The Attorney General may compromise the amount of
a civil penalty under this section.
215
§ 10123. Failure to detain and deport alien stowaways
A person not detaining or deporting an alien stowaway as required by sec-
tion 6907(b) (2) or (3) of this title is liable to the United States Govern-
ment for a civil penalty of $3,000 for each alien stowaway not detained or
deported.
§ 10124. Failure to carry out orders related to detained
aliens and bringing in deported aliens
(a) CIVIL PENALTY.—If the Attorney General is satisfied that a person
has violated section 6903, 6906(c), 6907(a), or 6908 of this title or an
order of the Attorney General under one of those sections, the person is lia-
ble to the United States Government for a civil penalty of $2,000 for each
violation.
(b) PROHIBITION ON COMPROMISE.—The Attorney General may not com-
promise the amount of a civil penalty under this section.
§ 10125. Document fraud
(a) DEFINITION.—In this section, ‘‘person’’, in addition to its meaning
under section 1 of title 1, includes a governmental authority.
(b) VIOLATIONS.—(1) A person may not knowingly—
(A) forge, counterfeit, alter, or falsely make a document to satisfy
a requirement of this title;
(B) use, attempt to use, possess, obtain, accept, receive, or provide
a forged, counterfeit, altered, or falsely made document to satisfy a re-
quirement of this title;
(C) use, provide, or attempt to use or provide, a document lawfully
issued to a person other than the possessor (including a deceased indi-
vidual), to satisfy a requirement of this title; or
(D) accept, receive, or provide a document lawfully issued to a per-
son other than the possessor (including a deceased individual), to com-
ply with section 11103 of this title.
(2) This subsection does not apply to subchapter I of chapter 5, sub-
chapters I, III, and IV of chapter 131, chapters 133–137, and section
13902 of this title.
(c) AUTHORITY IN CONDUCTING INVESTIGATIONS AND HEARINGS.—(1)
In conducting an investigation or hearing under this section—
(A) an immigration officer or administrative law judge shall have
reasonable access to examine evidence of a person being investigated;
and
(B) an administrative law judge may subpena, if necessary, the at-
tendance of witnesses and the production of evidence at any designated
place.
216
(2) If a person disobeys a subpena issued under this subsection, an ap-
propriate district court of the United States, on application by the Attorney
General, may issue an order to comply with the subpena. The court may
punish a failure to comply with the order of the court as a contempt of
court.
(d) HEARINGS.—(1) The Attorney General may issue an order referred
to in subsection (e) of this section against a person for violating subsection
(b) of this section only after notice and an opportunity for a hearing. A
hearing must be requested within a reasonable time (established by the At-
torney General, but at least 30 days) after the date of the notice.
(2) If a timely request for a hearing is not made, the Attorney General
may issue an order referred to in subsection (e) of this section without a
hearing.
(3) If a timely request for a hearing is made, the hearing shall be con-
ducted by an administrative law judge as provided by section 554 of title
5 at the nearest practicable place to the place where the person resides or
the alleged violation occurred. If the judge finds by a preponderance of the
evidence that the person has violated subsection (b) of this section, the
judge shall—
(A) state findings of fact; and
(B) issue and have served on the person an order referred to in sub-
section (e) of this section.
(e) CEASE AND DESIST ORDERS.—(1) For a violation of subsection (b)
of this section, an order issued under this section shall require the person
to cease and desist from the violation and to pay a civil penalty of—
(A) at least $250, but not more than $2,000, for each document
used, accepted, or created and each time a document is used, accepted,
or created; or
(B) at least $2,000, but not more than $5,000, for each document
used, accepted, or created and each time a document is used, accepted,
or created, if the person previously was subject to an order under this
subsection.
(2) In applying this subsection, if an entity is composed of distinct, phys-
ically separate subdivisions each of which provides separately for the hiring,
recruiting, or referring for employment, without reference to the practices
of, and not under control of or common control with, another subdivision,
each subdivision is deemed a separate entity.
(f) FINALITY OF DECISIONS AND ORDERS.—The decision and order of an
administrative law judge under this section becomes the final decision and
order of the Attorney General unless the Attorney General changes or va-
217
cates the decision and order within 30 days after the date of the decision
and order.
(g) JUDICIAL REVIEW.—(1) Except as provided by paragraph (2) of this
subsection, a person adversely affected by a final order under this section
may file a petition for review of the order in the court of appeals for the
appropriate circuit within 45 days after the date the final order is issued.
(2) An order of the Attorney General issued without a hearing as pro-
vided by subsection (d)(2) of this section is not appealable.
(h) ENFORCEMENT OF ORDER.—If a person does not comply with a final
order issued under this section, the Attorney General shall bring a civil ac-
tion in an appropriate district court of the United States to seek compliance
with the order. The validity and appropriateness of the order may not be
reviewed in the action.
(i) INVESTIGATIVE, PROTECTIVE, AND INTELLIGENCE ACTIVITIES NOT
PROHIBITED.—This section does not prohibit—
(1) any lawfully authorized investigative, protective, or intelligence
activity of a law enforcement agency of the United States, a State, or
a subdivision of a State or of an intelligence agency of the United
States; or
(2) any activity authorized under chapter 224 of title 18.
(j) CONSTRUCTION.—This section does not affect a penalty that may be
imposed for an activity prohibited under both this section and title 18.
§ 10126. Clearing vessels and aircraft
(a) CLEARANCE BEFORE DECISION ON LIABILITY.—A vessel or aircraft
may be granted clearance before a decision on liability is made under sec-
tion 10112–10117, 10119, 10120, 10123, or 10124 of this title only if a
bond approved by the Attorney General or an amount sufficient to pay the
civil penalty is deposited.
(b) PROHIBITION ON CLEARANCE WHEN PENALTY UNPAID.—A vessel or
aircraft may not be granted clearance if a civil penalty imposed under sec-
tion 10112–10117, 10119, 10120, 10123, or 10124 of this title is not paid.
SUBCHAPTER III—CRIMINAL PENALTIES
§ 10141. Violating period of conditional landing permit
An alien crewmember willfully remaining in the United States after the
period allowed by a conditional permit granted under section 2703(b) of this
title shall be fined under title 18, imprisoned for not more than 6 months,
or both.
§ 10142. Failure to register and be fingerprinted
An alien required to apply for registration and to be fingerprinted in the
United States and willfully failing to apply or to be fingerprinted, and a
parent or legal guardian required to apply for the registration of an alien
218
and willfully failing to apply, shall be fined under title 18, imprisoned for
not more than 6 months, or both.
§ 10143. Failure to carry a certificate of alien registration or
alien registration receipt card
An alien violating section 8103(b) of this title shall be fined under title
18, imprisoned for not more than 30 days, or both.
§ 10144. Failure to provide addresses
An individual violating section 8104 of this title shall be fined under title
18, imprisoned for not more than 30 days, or both.
§ 10145. False and fraudulent registration
An alien, or a parent or legal guardian of an alien, who files an applica-
tion for registration knowing that the application contains a false statement,
or who registers or attempts to register himself, herself, or another individ-
ual through fraud, shall be fined under title 18, imprisoned for not more
than 6 months, or both.
§ 10146. Counterfeiting alien registration documents
A person that with unlawful intent makes an engraving, photograph,
print, impression, or imitation of a certificate of alien registration or an
alien registration receipt card, except when authorized under regulations
prescribed by the Attorney General, shall be fined under title 18, imprisoned
for not more than 5 years, or both.
§ 10147. Bringing in and harboring aliens
(a) CRIMINAL PENALTIES.—(1)(A) A person shall be fined under title 18,
imprisoned for not more than 5 years, or both, if the person—
(i) knowing an individual is an alien, brings or attempts to bring the
individual to the United States at a place not designated as a port of
entry or not designated by the Attorney General, even if the alien has
received prior authorization to come to, enter, or reside in the United
States, and regardless of any future official action that may be taken
with respect to the alien;
(ii) knowing, or in reckless disregard of whether, an alien has come
to, has entered, or remains in the United States in violation of law,
transports or moves, or attempts to transport or move, the alien within
the United States in furtherance of that violation;
(iii) knowing, or in reckless disregard of whether, an alien has come
to, has entered, or remains in the United States in violation of law,
conceals, harbors, or shields from detection, or attempts to conceal,
harbor, or shield from detection, the alien; or
(iv) encourages or induces an alien to come to, enter, or reside in
the United States, knowing, or in reckless disregard of whether, the
coming, entering, or residing is unlawful.
219
(B) A separate violation occurs under paragraph (1) of this subsection
for each alien involved in a violation.
(2) A person that, knowing, or in reckless disregard of whether, an alien
has not received prior authorization to come to, enter, or reside in the Unit-
ed States (regardless of any future official action that may be taken with
respect to the alien), brings or attempts to bring the alien to the United
States shall be fined under title 18, imprisoned for not more than one year,
or both, for each transaction violating this paragraph without regard to the
number of aliens involved. However, the person shall be fined under title
18, imprisoned for not more than 5 years, or both, if the violation is—
(A) a subsequent violation;
(B) done for commercial advantage or private financial gain; or
(C) one in which the alien is not brought and presented to an immi-
gration officer at a designated port of entry immediately on arrival.
(b) SEIZURE
AND FORFEITURE
OF CONVEYANCE.—(1) A conveyance
used in violating subsection (a) of this section shall be seized and may be
forfeited. However, a conveyance—
(A) used by a person as a common carrier in carrying out common
carrier business may be forfeited only if the owner or person in charge
of the conveyance consented to, or was privy to, the violation; and
(B) may not be forfeited if the owner establishes that another person
committed the violation when the conveyance was in the possession of
another person in violation of the criminal laws of the United States
or of a State.
(2) A conveyance may be seized under this section without a warrant if
there is probable cause to believe it has been or is being used in violating
subsection (a) of this section and circumstances exist in which a warrant
is not required constitutionally.
(c) DISPOSITION OF FORFEITED CONVEYANCE.—When a conveyance is
forfeited under this section, the Attorney General may—
(1) keep the conveyance for official use;
(2) sell the conveyance and shall use the proceeds to pay the ex-
penses of the proceedings for forfeiture and sale, including seizure,
maintenance of custody, advertising, and court costs;
(3) require the Administrator of General Services, or the Adminis-
trator of the Maritime Administration if appropriate under section
203(i) of the Federal Property and Administrative Services Act of
1949 (40 U.S.C. 484(i)), to take custody of the conveyance and dispose
of it under law; or
(4) dispose of the conveyance under a compromise made by the At-
torney General.
220
(d) PROOF IN FORFEITURE ACTION.—In a civil action brought to forfeit
a conveyance seized under this section, a person claiming the conveyance
has the burden of proof. However, the Attorney General first must show
probable cause in bringing the action. In deciding whether probable cause
exists, each of the following is prima facie evidence that an alien involved
in an alleged violation had not received prior authorization to come to,
enter, or reside in the United States or had come to, entered, or remained
in the United States unlawfully:
(1) a record of a judicial or administrative proceeding in which the
alien’s status was an issue and in which it was decided that the alien
had not received prior authorization to come to, enter, or reside in the
United States or had come to, entered, or remained in the United
States unlawfully.
(2) official records of the Immigration and Naturalization Service or
the Department of State showing that the alien had not received prior
authorization to come to, enter, or reside in the United States or had
come to, entered, or remained in the United States unlawfully.
(3) testimony by an immigration officer, having personal knowledge
about the alien’s status, that the alien had not received prior authoriza-
tion to come to, enter, or reside in the United States or had come to,
entered, or remained in the United States unlawfully.
(e) APPLICATION OF LAWS RELATED TO SEIZURES AND FORFEITURES
FOR VIOLATING CUSTOMS LAWS.—Laws related to the seizure, forfeiture,
and condemnation of property for violating the customs laws, disposition of
the property or the proceeds of sale of the property, compromise of the for-
feiture or a related claim, and award of compensation to an informer be-
cause of the forfeiture apply to a seizure or forfeiture under this section
if not inconsistent with this section. However, duties and powers of persons
in seizing and forfeiting property under the customs laws shall be carried
out by persons the Attorney General authorizes to conduct a seizure or for-
feiture under this section.
(f) INDIVIDUALS AUTHORIZED TO MAKE ARRESTS.—Only officers and
employees of the Service designated by the Attorney General, individually
or by class, and other officers and employees who enforce criminal laws,
may make arrests for a violation of this section.
§ 10148. Improper entry of aliens
(a) CRIMINAL OFFENSES.—An alien shall be punished as provided by
subsection (b) of this section if the alien—
(1) enters or attempts to enter the United States—
(A) at a time or place not designated by an immigration officer;
or
221
(B) by a willfully false or misleading representation or the will-
ful concealment of a material fact; or
(2) eludes inspection or examination by an immigration officer.
(b) CRIMINAL PENALTIES.—An alien violating subsection (a) of this sec-
tion shall be—
(1) fined under title 18, imprisoned for not more than 6 months, or
both, for a first violation; and
(2) fined under title 18, imprisoned for not more than 2 years, or
both, for a subsequent violation.
(c) VENUE.—A proceeding under this section may be brought in any judi-
cial district in which the violation occurs or in which the alien is appre-
hended.
§ 10149. Reentry of deported aliens
(a) CRIMINAL PENALTY.—(1) Except as otherwise provided by this sec-
tion, an alien who has been arrested and deported or excluded and deported
and then enters, attempts to enter, or is found in the United States shall
be fined under title 18, imprisoned for not more than 2 years, or both.
(2) If the alien’s deportation followed conviction of a felony (except an
aggravated felony) and the alien enters, attempts to enter, or is found in
the United States after November 17, 1988, the alien shall be fined under
title 18, imprisoned for not more than 5 years, or both.
(3) If the alien’s deportation followed conviction of an aggravated felony
and the alien enters, attempts to enter, or is found in the United States
after November 17, 1988, the alien shall be fined under title 18, imprisoned
for not more than 15 years, or both.
(b) NONAPPLICATION.—Subsection (a) of this section does not apply to
an alien—
(1) when the Attorney General specifically consents to the alien’s
reapplying for admission before the alien—
(A) reboards at a place outside the United States; or
(B) applies for admission from a foreign territory contiguous to
the United States; or
(2) previously excluded and deported who establishes that prior con-
sent by the Attorney General is not required under this title or other
prior law.
(c) VENUE.—A proceeding under this section may be brought in any judi-
cial district in which the violation occurs or in which the alien is appre-
hended.
222
§ 10150. Assisting certain excludable aliens to enter the
United States
A person knowingly assisting or conspiring to assist an alien to enter the
United States shall be fined under title 18, imprisoned for not more than
10 years, or both, if—
(1)(A) the alien is excludable under section 6307(a)(1)–(5) and (7)
of this title because of an aggravated felony; and
(B) the assistance occurred after November 17, 1988; or
(2) the alien is excludable under section 6308 of this title.
§ 10151. Importing aliens for immoral purposes
(a) CRIMINAL PENALTY.—A person shall be fined under title 18, impris-
oned for not more than 10 years, or both, if the person—
(1) imports or attempts to import an alien into the United States
for prostitution or another immoral purpose; or
(2) holds, attempts to hold, maintains, controls, supports, employs,
or harbors an alien in furthering an importation violating clause (1)
of this subsection.
(b) VENUE.—A proceeding under this section may be brought in any judi-
cial district into which the alien is brought in violation of this section or
in which a violation of this section occurs.
(c) TESTIMONY OF SPOUSE.—Testimony of a spouse is admissible and is
competent evidence in a proceeding under this section.
§ 10152. Violation of supervision pending deportation
An alien willfully violating a requirement imposed under section 6536(d)
of this title, including giving false information in response to such a require-
ment, shall be fined under title 18, imprisoned for not more than one year,
or both.
§ 10153. Willful failure to leave the United States
(a) CRIMINAL PENALTY.—An alien against whom the Attorney General
has issued a final order of deportation because of any ground described by
sections 6506–6509 of this title shall be fined under title 18, imprisoned
for not more than 10 years, or both, if the alien—
(1) willfully does not—
(A) leave the United States within the 6-month period that be-
gins on the latest of—
(i) the date of the Attorney General’s final order;
(ii) if judicial review occurs, the date of the court’s final
order; or
(iii) if section 6536(f) of this title applies, the date on
which the Attorney General decides that the alien has reen-
tered the United States unlawfully;
223
(B) apply timely in good faith for a document the alien needs
to leave the United States; or
(C) appear for deportation at the time and place the Attorney
General requires under the order of deportation; or
(2) takes an action to prevent or hamper, or conspire to prevent or
hamper, the alien from leaving the United States under the deportation
order.
(b) ATTEMPTED RELIEF NOT PROHIBITED.—Subsection (a) of this sec-
tion does not prohibit an alien from trying to obtain—
(1) a cancellation of the deportation order;
(2) an exemption from the deportation order; or
(3) a release from incarceration or custody.
(c) SUSPENSION OF SENTENCE AND RELEASE.—(1) For good cause, the
court sentencing an alien convicted of violating subsection (a) of this section
may suspend the sentence and order the alien released on conditions the
court prescribes.
(2) In deciding whether good cause exists for releasing an alien under
paragraph (1) of this subsection, the court shall consider factors such as—
(A) the age, health, and period of detention of the alien;
(B) the effect of the alien’s release on the security of the United
States and public peace or safety;
(C) the likelihood that the alien will resume or follow a course of
conduct that made or would make the alien deportable;
(D) efforts the alien or a representative of a country to which the
alien is ordered deported makes to expedite the alien’s leaving the
United States;
(E) the reason why the United States Government cannot obtain a
passport or other travel document or deportation facilities from a coun-
try to which the alien is ordered deported; and
(F) the eligibility of the alien for discretionary release under the im-
migration laws.
§ 10154. Marriage to evade immigration laws
(a) CRIMINAL PENALTY.—An individual who knowingly marries to evade
the immigration laws shall be fined under title 18, imprisoned for not more
than 5 years, or both.
(b) VENUE.—A proceeding under this section may be brought in any judi-
cial district in which the violation occurs or in which the individual is appre-
hended.
224
§ 10155. Misrepresentations in applications for change of
status
An individual knowingly and willfully making a material misrepresenta-
tion in an application or supporting document filed under section 9303 of
this title, or making or using a false document in connection with the appli-
cation, shall be fined under title 18, imprisoned for not more than 5 years,
or both.
§ 10156. Disclosing confidential information in applications
An individual violating section 9308(b) of this title shall be fined under
title 18, imprisoned for not more than 5 years, or both.
§ 10157. Establishing a commercial enterprise to evade im-
migration laws
(a) CRIMINAL PENALTY.—An individual who knowingly establishes a
commercial enterprise to evade the immigration laws shall be fined under
title 18, imprisoned for not more than 5 years, or both.
(b) VENUE.—A proceeding under this section may be brought in any judi-
cial district in which the violation occurs or in which the individual is appre-
hended.
SUBTITLE III—UNLAWFUL EMPLOYMENT
PRACTICES
CHAPTER
Sec.
111.
UNLAWFUL EMPLOYMENT OF ALIENS ................................................
11101
113.
IMMIGRATION-RELATED UNFAIR EMPLOYMENT PRACTICES .......
11301
CHAPTER 111—UNLAWFUL EMPLOYMENT OF ALIENS
Sec.
11101.
Definitions.
11102.
Employment of unauthorized aliens.
11103.
Employment verification system.
11104.
Evaluating and changing employment verification system.
11105.
Compliance.
11106.
Criminal penalties and civil actions for pattern or practice violations.
11107.
Indemnity prohibition.
11108.
Conspicuous statement requirement.
11109.
Preemption of State and local law.
§ 11101. Definitions
In this chapter—
(1) ‘‘person’’, in addition to its meaning under section 1 of title 1,
includes a governmental authority.
(2) ‘‘unauthorized alien’’ means, with respect to employment at a
particular time, an alien who is not at that time—
(A) lawfully admitted for permanent residence; or
(B) authorized to be employed in that employment by this title
or by the Attorney General.
§ 11102. Employment of unauthorized aliens
(a) PROHIBITIONS.—(1) A person—
225
(A) may not hire, or recruit or refer for a fee, for employment in
the United States an alien knowing the alien is an unauthorized alien;
(B) may not hire for employment in the United States an individual
without complying with section 11103 of this title; or
(C) if the person is an agricultural association, agricultural em-
ployer, or farm labor contractor (as defined by section 3 of the Migrant
and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1802)),
may not recruit or refer for a fee for employment in the United States
an individual without complying with section 11103 of this title.
(2) A person may not continue to employ in the United States an alien
knowing the alien is an unauthorized alien.
(b) USE OF LABOR THROUGH CONTRACT.—A person violates subsection
(a)(1)(A) of this section if the person uses a contract or exchange that is
made, renegotiated, or extended after November 6, 1986, to obtain the labor
of an alien in the United States, knowing the alien is an unauthorized alien.
(c) DEFENSE.—Good faith compliance with section 11103 of this title is
an affirmative defense under subsection (a)(1)(A) of this section.
(d) STATE EMPLOYMENT AGENCY DOCUMENTATION.—For purposes of
subsections (a)(1)(B) and (C) and (c) of this section, a person hiring an
individual referred by a State employment agency (as defined by the Attor-
ney General) is deemed to have complied with section 11103 of this title
if the person has and retains (for the period and in the way described by
section 11103(c)) appropriate documentation of the referral certifying that
the agency complied with section 11103 for that individual.
(e) NONAPPLICATION.—(1) Subsection (a)(1) of this section does not
apply to hiring, recruiting, or referring that occurred before November 6,
1986.
(2) Subsection (a)(2) of this section does not apply to continuing employ-
ment of an alien hired before November 6, 1986.
(f) TEMPORARY PROVISIONS.—(1) The Attorney General may not con-
duct a proceeding or issue an order under this chapter for a violation al-
leged to have occurred during the period from December 1, 1986, through
May 31, 1987.
(2) If the Attorney General has reason to believe that a person has com-
mitted a first violation of this section during the period from June 1, 1987,
through May 31, 1988, the Attorney General—
(A) shall issue a citation to the person; and
(B) may not conduct a proceeding or issue an order for the violation.
(3) In applying paragraphs (1) and (2) of this subsection when an alien
is deemed to be employed in the United States under this chapter as pro-
vided by section 8704 of title 46—
226
(A) in paragraph (1), substitute ‘‘August 1, 1988, through January
31, 1989’’ for ‘‘December 1, 1986, through May 31, 1987’’; and
(B) in paragraph (2), substitute ‘‘February 1, 1989, through Janu-
ary 31, 1990’’ for ‘‘June 1, 1987, through May 31, 1988’’.
§ 11103. Employment verification system
(a) ATTESTATION AFTER EXAMINING DOCUMENTS.—(1) A person hiring,
or recruiting or referring for a fee, an individual for employment in the
United States must attest, under penalty of perjury and on a form pre-
scribed by the Attorney General, that the person has verified that the indi-
vidual is not an unauthorized alien by examining—
(A) a document specified in paragraph (3) of this subsection; or
(B)(i) a document specified in paragraph (4) of this subsection; and
(ii) a document specified in paragraph (5) of this subsection.
(2) A person has examined a document as required by paragraph (1) of
this subsection if the person has found that the document reasonably ap-
pears on its face to be genuine. The person is not required to request, and
the individual is not required to provide, another document if the individual
has provided a document or combination of documents complying with para-
graph (1) that reasonably appear on their face to be genuine.
(3) A document required under paragraph (1)(A) of this subsection is an
individual’s—
(A) United States passport;
(B) certificate of United States citizenship;
(C) certificate of naturalization;
(D) unexpired foreign passport, if the passport has an appropriate,
unexpired endorsement of the Attorney General authorizing the individ-
ual’s employment in the United States; or
(E) resident alien card or other alien registration card, if the card—
(i) contains the individual’s photograph or other identifying in-
formation the Attorney General prescribes by regulation as accept-
able; and
(ii) is evidence of authorization of employment in the United
States.
(4) A document required under paragraph (1)(B)(i) of this subsection is
an individual’s—
(A) social security account number card (unless it states on its face
that issuance of the card does not authorize employment in the United
States);
(B) certificate of birth in the United States or establishing United
States nationality at birth, if the certificate is acceptable under regula-
tions prescribed by the Attorney General; or
227
(C) other documentation providing authorization of employment in
the United States that the Attorney General prescribes by regulation
as acceptable.
(5) A document required under paragraph (1)(B)(ii) of this subsection is
an individual’s—
(A) driver’s license or similar document issued for identification by
a State, if it contains the individual’s photograph or other identifying
information the Attorney General prescribes by regulation as accept-
able; or
(B) for an individual less than 16 years of age or in a State that
does not issue an identification document other than a driver’s license,
documentation of personal identity that the Attorney General pre-
scribes by regulation as providing a reliable means of identification.
(b) INDIVIDUAL ATTESTATION OF EMPLOYMENT AUTHORIZATION.—The
individual must attest, under penalty of perjury and on the form prescribed
under subsection (a) of this section, that the individual is—
(1) a national of the United States;
(2) an alien lawfully admitted for permanent residence; or
(3) an alien authorized by this title or by the Attorney General to
be hired, recruited, or referred for the employment.
(c) RETENTION OF VERIFICATION FORM.—After the form is completed
as provided by subsections (a) and (b) of this section, the person must re-
tain the form and make it available for inspection by officers and employees
of the Immigration and Naturalization Service, the Special Counsel for Im-
migration-Related Unfair Employment Practices, and the Secretary of
Labor during a period beginning on the date of the hiring, recruiting, or
referral and ending—
(1) if the individual is recruited or referred for a fee but not hired,
3 years after the date of the recruiting or referral; or
(2) if the individual is hired, 3 years after the date of hire or one
year after the date the employment ends, whichever is later.
(d) COPYING DOCUMENTATION.—A person may copy a document pre-
sented by an individual under this section and retain the copy, but only (ex-
cept as otherwise permitted by law) to comply with this section.
(e) LIMITATION ON USE OF FORMS.—A form completed under this sec-
tion, and information contained in or appended to the form, may be used
only to enforce this title and sections 1001, 1028, 1546, and 1621 of title
18.
(f) NATIONAL IDENTIFICATION CARD NOT AUTHORIZED.—This chapter
does not authorize the establishment, issuance, or use of a national identi-
fication card.
228
§ 11104. Evaluating and changing employment verification
system
(a) DEFINITION.—In this section, ‘‘major change’’ means a change that
would—
(1) require an individual to present a new card or other document
(designed specifically to verify employment eligibility) at the time of
hiring, recruitment, or referral;
(2) provide for a telephone verification system under which—
(A) an employer, recruiter, or referrer must give an officer or
employee of the United States Government information about the
immigration status of a prospective employee; and
(B) the officer or employee of the Government gives the em-
ployer, recruiter, or referrer a verification code that the employer,
recruiter, or referrer must record; or
(3) require a change in a card used for accounting under the Social
Security Act (42 U.S.C. 301 et seq.), including a change requiring that
the only social security account number card that may be presented to
comply with section 11103(a)(4)(A) of this title is a card in a counter-
feit-resistant form consistent with section 205(c)(2)(F)(last sentence)
of the Social Security Act (42 U.S.C. 405(c)(2)(F)(last sentence)).
(b) PRESIDENTIAL MONITORING AND IMPROVEMENTS.—(1) The Presi-
dent shall—
(A) provide for monitoring and evaluating the degree to which the
employment verification system under section 11103 of this title pro-
vides a secure system to verify employment eligibility in the United
States; and
(B) examine the suitability of using existing Government and State
identification systems to verify employment eligibility in the United
States.
(2) To the extent the President finds the system is not a secure system
to verify employment eligibility in the United States, the President shall
make changes in and additions to the system necessary to establish a secure
system to verify employment eligibility in the United States—
(A) subject to subsections (c)–(f) of this section; and
(B) after considering the results of any demonstration project con-
ducted under subsection (g) of this section.
(c) CHANGE REQUIREMENTS.—A change proposed by the President
under subsection (b) of this section must be designed so that the system,
as changed, will meet the following requirements:
(1) The system must be able to verify reliably whether—
229
(A) an individual with the identity claimed by an employee or
prospective employee is eligible to work; and
(B) the employee or prospective employee is claiming the iden-
tity of another individual.
(2) If the system requires that a document be presented to or exam-
ined by an employer, the document must be in a form resistant to
counterfeiting and tampering.
(3) Personal information used by the system may be made available
only to the extent necessary to verify that an individual is not an unau-
thorized alien.
(4) The system must protect the privacy and security of personal in-
formation and identifiers used in the system.
(5) A verification that an individual is eligible to be employed in the
United States may be withheld or revoked only if the individual is an
unauthorized alien.
(6) The system may not be used for law enforcement, except to en-
force this title and sections 1001, 1028, 1546, and 1621 of title 18.
(7) If the system requires an individual to present a new card or
other document (designed specifically to verify employment eligibility)
at the time of hiring, recruitment, or referral, the document may not
be required to be presented for another purpose (except under this title
or for enforcement of sections 1001, 1028, 1546, and 1621 of title 18)
or to be carried on the individual.
(d) NOTICES TO CONGRESS BEFORE MAKING CHANGES.—(1) Before car-
rying out a change, the President must submit a written report of the pro-
posed change to the Committees on the Judiciary of the Senate and the
House of Representatives. If the President proposes a change affecting so-
cial security account number cards, the President also shall submit the re-
port to the Committee on Finance of the Senate and the Committee on
Ways and Means of the House of Representatives. A report under this para-
graph shall include recommendations for civil and criminal penalties for un-
authorized use or disclosure of the information or identifiers used in the sys-
tem. The report shall be submitted at least—
(A) 60 days before the date the change is to be carried out if the
change is not a major change;
(B) one year before the date the change is to be carried out if the
change is a major change as defined by subsection (a)(3) of this sec-
tion; or
(C) 2 years before the date the change is to be carried out if the
change is a major change as defined by subsection (a)(1) or (2) of this
section.
230
(2) The President shall publish promptly in the Federal Register the sub-
stance of a major change reported to Congress under this subsection.
(e) CONGRESSIONAL REVIEW OF MAJOR CHANGES.—(1) The Committees
on the Judiciary of the Senate and the House of Representatives shall—
(A) publish in the Congressional Record the substance of a major
change submitted by the President under subsection (d) of this section;
(B) hold hearings on the feasibility and desirability of the change;
and
(C) within the 2-year period before the change is to be carried out,
report to their respective Houses findings on whether the change
should be made.
(2) A major change may be carried out only if an amount is appropriated
by law specifically to carry out the change.
(f) PAYMENT OF COSTS.—Costs incurred under this section in developing
and carrying out a change described by subsection (a)(3) of this section may
not be paid out of a trust fund established under the Social Security Act
(42 U.S.C. 301 et seq.).
(g) DEMONSTRATION PROJECTS.—The President may undertake dem-
onstration projects consistent with subsection (c) of this section of different
changes in the system. A project may not be for more than 3 years. The
President shall report to Congress on the results of each project conducted
under this subsection.
§ 11105. Compliance
(a) COMPLAINTS AND INVESTIGATIONS.—The Attorney General shall es-
tablish procedures for—
(1) a person to file a written, signed complaint of a violation of sec-
tion 11102 or 11107(a) of this title;
(2) investigating a complaint that, on its face, has a substantial
probability of validity;
(3) investigating other violations of section 11102 or 11107(a) of
this title that the Attorney General considers appropriate; and
(4) designating a unit in the Immigration and Naturalization Service
that has, as its primary duty, the prosecution under this section of vio-
lations of section 11102 or 11107(a) of this title.
(b) AUTHORITY IN CONDUCTING INVESTIGATIONS AND HEARINGS.—(1)
In conducting an investigation or hearing under this section—
(A) the immigration officer or administrative law judge conducting
the investigation or hearing shall have reasonable access to examine
evidence of a person being investigated; and
231
(B) the administrative law judge may subpena, if necessary, the at-
tendance of witnesses and the production of evidence at any designated
place.
(2) If a person disobeys a subpena issued under this subsection, an ap-
propriate district court of the United States, on application by the Attorney
General, may issue an order to comply with the subpena. The court may
punish a failure to comply with the order of the court as a contempt of
court.
(c) HEARINGS.—(1) The Attorney General may issue an order referred
to in subsections (d)–(f) of this section against a person for violating section
11102 or 11107(a) of this title only after notice and an opportunity for a
hearing. A hearing must be requested within a reasonable time (established
by the Attorney General, but at least 30 days) after the date of the notice.
(2) If a timely request for a hearing is not made, the Attorney General
may issue an order referred to in subsections (d)–(f) of this section without
a hearing.
(3) If a timely request for a hearing is made, the hearing shall be con-
ducted by an administrative law judge as provided by section 554 of title
5 at the nearest practicable place to the place where the person resides or
the alleged violation occurred. If the judge finds by a preponderance of the
evidence that the person has violated section 11102 or 11107(a) of this title,
the judge shall—
(A) state findings of fact; and
(B) issue and have served on the person an order referred to in sub-
sections (d)–(f) of this section.
(d) ORDERS INVOLVING HIRING, RECRUITING, AND REFERRAL VIOLA-
TIONS.—(1) For a violation of section 11102(a)(1)(A) or (2) of this title,
an order issued under this section—
(A) shall require the person to cease and desist from the violation
and to pay a civil penalty of—
(i) at least $250, but not more than $2,000, for each unauthor-
ized alien involved in the violation;
(ii) at least $2,000, but not more than $5,000, for each unau-
thorized alien involved in the violation if the person previously was
subject to one order under this subsection; or
(iii) at least $3,000, but not more than $10,000, for each unau-
thorized alien involved in the violation if the person previously was
subject to more than one order under this subsection; and
(B) may require the person—
232
(i) to comply for not more than 3 years with section 11103 of
this title or, if applicable, with section 11104 of this title, for indi-
viduals hired or recruited or referred for a fee; and
(ii) to take other appropriate remedial action.
(2) In applying this subsection, if an entity is composed of distinct, phys-
ically separate subdivisions each of which provides separately for the hiring,
recruiting, or referring for employment, without reference to the practices
of, and not under control of or common control with, another subdivision,
each subdivision is deemed a separate entity.
(e) ORDERS INVOLVING PAPERWORK VIOLATIONS.—For a violation of
section 11102(a)(1)(B) or (C) of this title, an order issued under this sec-
tion shall require the person to pay a civil penalty of at least $100, but not
more than $1,000, for each individual about whom the violation occurred.
In deciding on the amount of the penalty, consideration shall be given to—
(1) the size of the business of the person;
(2) the good faith of the person;
(3) the seriousness of the violation;
(4) whether the individual was an unauthorized alien; and
(5) any history of prior violations.
(f) ORDERS INVOLVING INDEMNITY VIOLATIONS.—For a violation of sec-
tion 11107(a) of this title, an order issued under this section may provide
for the penalty described by section 11107(b) of this title.
(g) FINALITY OF DECISIONS AND ORDERS.—The decision and order of
an administrative law judge under this section become the final decision and
order of the Attorney General unless the Attorney General changes or va-
cates the decision and order within 30 days after the date of the decision
and order. The Attorney General may not delegate the Attorney General’s
authority under this subsection to a person having review authority over im-
migration-related matters.
(h) JUDICIAL REVIEW.—(1) Except as provided by paragraph (2) of this
subsection, a person adversely affected by a final order imposing a civil pen-
alty under this section may file a petition for review of the order in the
court of appeals for the appropriate circuit within 45 days after the date
the final order is issued.
(2) An order of the Attorney General issued without a hearing as pro-
vided by subsection (c)(2) of this section is not appealable.
(i) ENFORCEMENT OF ORDERS.—If a person does not comply with a final
order issued under this section, the Attorney General shall bring a civil ac-
tion in an appropriate district court of the United States to seek compliance
with the order. The validity and appropriateness of the order may not be
reviewed in the action.
233
§ 11106. Criminal penalties and civil actions for pattern or
practice violations
(a) CRIMINAL PENALTY.—A person engaging in a pattern or practice of
violations of section 11102(a)(1)(A) or (2) of this title shall be fined not
more than $3,000 for each unauthorized alien involved in a violation (not-
withstanding the provisions of title 18 on the amount of fines), imprisoned
for not more than 6 months for the entire pattern or practice, or both.
(b) CIVIL ACTIONS.—If the Attorney General has reason to believe that
a person is engaged in a pattern or practice of employment, recruitment,
or referral in violation of section 11102(a)(1)(A) or (2) of this title, the At-
torney General may bring a civil action in the appropriate district court of
the United States for relief the Attorney General considers necessary.
§ 11107. Indemnity prohibition
(a) GENERAL.—A person hiring, recruiting, or referring an individual for
employment may not require the individual to post a bond or security, to
pay or agree to pay an amount, or to give another financial guarantee or
indemnity, against potential liability arising under this chapter related to
the hiring, recruiting, or referral.
(b) CIVIL PENALTY.—After notice and an opportunity for a hearing
under section 11105 of this title, a person found to have violated subsection
(a) of this section—
(1) is liable to the United States Government for a civil penalty of
$1,000; and
(2) may be ordered administratively to return any amount received
in violation of subsection (a) of this section to the individual or, if the
individual cannot be located, to pay that amount to the general fund
of the Treasury.
§ 11108. Conspicuous statement requirement
In providing for the documentation or endorsement of authorization for
employment in the United States for an alien (except an alien lawfully ad-
mitted for permanent residence), the Attorney General shall provide that a
limitation on the period or type of employment or employer be stated con-
spicuously on the documentation or endorsement.
§ 11109. Preemption of State and local law
This chapter preempts State and local law imposing a civil or criminal
penalty (except through licensing and similar laws) on a person employing,
or recruiting or referring for a fee for employment, an unauthorized alien.
CHAPTER 113—IMMIGRATION-RELATED UNFAIR
EMPLOYMENT PRACTICES
Sec.
11301.
Definitions.
11302.
Immigration-related unfair employment practices.
234
11303.
Special Counsel for Immigration-Related Unfair Employment Practices.
11304.
Filing charges of unfair practices.
11305.
Investigating charges and filing complaints.
11306.
Hearings on complaints.
11307.
Authority in conducting investigations and hearings.
11308.
Orders of administrative law judges.
11309.
Judicial review of final orders.
11310.
Judicial enforcement of administrative orders.
11311.
Attorney fees.
11312.
Certain agency authority not affected.
§ 11301. Definitions
In this chapter—
(1) ‘‘protected individual’’—
(A) means an individual who is—
(i) a national of the United States; or
(ii) an alien lawfully admitted for permanent residence,
lawfully admitted for temporary residence under section 9302
of this title or section 210(a) or 210A(a) of the Immigration
and Nationality Act (66 Stat. 163), admitted as a refugee
under section 5105 of this title, or granted asylum under sec-
tion 5106 of this title; but
(B) does not include an alien who—
(i) did not apply for naturalization within 6 months after
first becoming eligible (because of a period of lawful perma-
nent residence) to apply, or, if later, before May 7, 1987; or
(ii) timely applied but was not naturalized within 2 years
after applying (excluding time taken by the Immigration and
Naturalization Service in processing the application), unless
the alien establishes that the alien is actively pursuing natu-
ralization.
(2) ‘‘person’’, in addition to its meaning under section 1 of title 1,
includes a governmental authority.
§ 11302. Immigration-related unfair employment practices
(a) IMMIGRATION-RELATED UNFAIR EMPLOYMENT PRACTICES.—It is an
immigration-related unfair employment practice for a person—
(1) to discriminate against an individual (except an unauthorized
alien as defined by section 11101(2) of this title) in hiring, or recruit-
ing or referring for employment for a fee, the individual or discharging
the individual from employment because of the individual’s national ori-
gin or, if the individual is a protected individual, because of the individ-
ual’s citizenship status; or
(2) after November 28, 1990, to intimidate, threaten, coerce, or re-
taliate against an individual—
(A) for the purpose of interfering with a right or privilege under
this chapter; or
235
(B) because the individual intends to file or has filed a charge
or complaint or assisted or participated in an investigation or pro-
ceeding under this chapter.
(b) CERTAIN DOCUMENT PRACTICES AS BEING UNFAIR.—After Novem-
ber 28, 1990, it is deemed to be an immigration-related unfair employment
practice under subsection (a)(1) of this section related to the hiring of an
individual, for a person to request, to satisfy the requirements of section
11103 of this title, more or different documents than are required under
section 11103 or to refuse to honor a document that on its face reasonably
appears to be genuine.
(c) NONAPPLICATION.—Subsection (a)(1) of this section does not apply
to—
(1) a person employing fewer than 4 employees;
(2) discrimination by a person because of an individual’s national or-
igin if the discrimination by that person against that individual is cov-
ered by section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–
2); or
(3) discrimination because of citizenship status that is—
(A) required to comply with a law, a regulation, or an executive
order;
(B) required by a contract of the United States Government or
a State or local government; or
(C) found by the Attorney General to be essential for an em-
ployer to do business with an agency of the Government or a State
or local government.
(d) PREFERENCE FOR EQUALLY QUALIFIED NATIONALS.—It is not an
immigration-related unfair employment practice for a person to hire, recruit,
or refer an individual who is a national of the United States instead of an
individual who is an alien if both individuals are equally qualified.
§ 11303. Special Counsel for Immigration-Related Unfair
Employment Practices
(a) APPOINTMENT.—The President shall appoint, by and with the advice
and consent of the Senate, a Special Counsel for Immigration-Related Un-
fair Employment Practices. The Special Counsel serves in the Department
of Justice for a term of 4 years. When the position is vacant, the President
may designate an officer or employee of the United States Government to
act as Special Counsel during the vacancy.
(b) DUTIES AND POWERS.—The Special Counsel shall carry out the du-
ties and powers given the Special Counsel under this chapter.
(c) DISSEMINATION
OF INFORMATION.—(1) In cooperation with the
Chairman of the Equal Employment Opportunity Commission, the Secretary
236
of Labor, and the Administrator of the Small Business Administration, the
Special Counsel shall conduct a campaign—
(A) to disseminate information on the rights and remedies prescribed
under this chapter and title VII of the Civil Rights Act of 1964 (42
U.S.C. 2000e et seq.) related to immigration-related unfair employment
practices; and
(B) to increase the knowledge of employers, employees, and the pub-
lic about employer and employee rights, responsibilities, and remedies
under this chapter and title VII.
(2) To carry out this subsection, the Special Counsel—
(A) to the extent considered appropriate and subject to the availabil-
ity of appropriations, may make contracts with public and private orga-
nizations for outreach activities under the campaign; and
(B) shall consult with the Chairman, the Secretary, and the heads
of other appropriate departments, agencies, and instrumentalities of
the United States Government.
(3) Not more than $10,000,000 may be appropriated for each fiscal year
to carry out this subsection.
(d) COMPENSATION.—The Special Counsel is entitled to a rate of pay
that is not more than the rate for GS–17.
(e) REGIONAL OFFICES.—Under regulations prescribed by the Attorney
General, the Special Counsel shall establish regional offices necessary to
carry out the duties and powers of the Special Counsel.
§ 11304. Filing charges of unfair practices
(a) FILING CHARGES.—(1) Except as provided by subsection (c) of this
section, a charge of an immigration-related unfair employment practice may
be filed with the Special Counsel for Immigration-Related Unfair Employ-
ment Practices by—
(A) a person alleging to be adversely affected directly by the practice,
or by another person for that person; or
(B) an officer of the Immigration and Naturalization Service alleging
that the practice has occurred or is occurring.
(2) A charge filed under this subsection must be in writing and under
oath and contain information the Attorney General requires.
(b) SERVICE OF NOTICE OF CHARGES.—The Special Counsel shall serve
a notice of a charge filed under subsection (a) of this section (including the
date, place, and circumstances of the alleged practice) on the person alleged
to have committed the practice. The notice shall be served by certified mail
not later than 10 days after the charge is filed.
(c) LIMITATIONS ON FILING CHARGES.—A charge of an immigration-re-
lated unfair employment practice involving discrimination because of na-
237
tional origin may not be filed under this section if a charge of that practice
based on the same set of facts has been filed with the Equal Employment
Opportunity Commission under title VII of the Civil Rights Act of 1964 (42
U.S.C. 2000e et seq.), unless the charge is dismissed as being outside the
scope of title VII. A charge about an employment practice may not be filed
with the Equal Employment Opportunity Commission under title VII if a
charge about that practice based on the same set of facts has been filed
under this section, unless the charge is dismissed as being outside the scope
of this chapter.
§ 11305. Investigating charges and filing complaints
(a) SPECIAL COUNSEL.—(1) The Special Counsel for Immigration-Relat-
ed Unfair Employment Practices shall investigate each charge filed under
section 11304 of this title. Not later than 120 days after the charge has
been filed, the Special Counsel shall decide whether there is reasonable
cause to believe the charge is true and whether to file a complaint about
the charge with an administrative law judge.
(2) On the Special Counsel’s own initiative, the Special Counsel may in-
vestigate an immigration-related unfair employment practice and, subject to
subsection (c) of this section, file a complaint about the practice with an
administrative law judge.
(3) Failure to file a complaint within the 120-day period does not prevent
the Special Counsel from investigating the charge or filing a complaint with
an administrative law judge during the 90-day period referred to in sub-
section (b) of this section.
(b) PRIVATE ACTIONS.—Subject to subsection (c) of this section, if a
charge alleges knowing and intentional discriminatory activity or a pattern
or practice of discriminatory activity, and the Special Counsel does not file
a complaint with an administrative law judge within 120 days after the
charge is filed with the Special Counsel under subsection (a)(1) of this sec-
tion, the Special Counsel shall notify the person that filed the charge during
the 120-day period of the decision not to file a complaint. The person may
file a complaint directly with an administrative law judge not later than 90
days after receiving the notice.
(c) TIME LIMITATION.—A complaint about an immigration-related unfair
employment practice may not be filed with an administrative law judge if
the practice occurred more than 180 days before the charge about that
practice was filed with the Special Counsel. This subsection does not prevent
subsequently amending a charge or complaint under section 11306(c)(1) of
this title.
(d) DISCRIMINATION DEEMED TO HAVE OCCURRED.—An individual in-
timidated, threatened, coerced, or retaliated against in violation of section
238
11302(a)(2) of this title is deemed to have been discriminated against under
this section.
§ 11306. Hearings on complaints
(a) DESIGNATING ADMINISTRATIVE LAW JUDGES.—A hearing on a com-
plaint alleging an immigration-related unfair employment practice shall be
conducted by an administrative law judge who—
(1) is specially designated by the Attorney General as having special
training in employment discrimination; and
(2) to the extent possible, conducts hearings only on complaints in-
volving immigration-related unfair employment practices under this
chapter.
(b) NOTICE OF HEARINGS.—When a complaint alleging an immigration-
related unfair employment practice is filed with an administrative law judge,
the judge shall issue and have served on the person named in the complaint
a copy of the complaint and a notice of the hearing. The date of the hearing
shall be at least 5 days after the complaint is served.
(c) PLEADINGS, APPEARANCES, AND PARTIES.—(1) On motion of the
party that filed the complaint, the judge may amend the complaint at any
time before issuing an order based on the complaint.
(2) The person named in the complaint may file an answer to the original
or amended complaint, appear in person or otherwise, and present testi-
mony.
(3) The person that filed the charge with the Special Counsel for Immi-
gration-Related Unfair Employment Practices is a party to the proceeding
before the judge and in any appeal from that proceeding.
(4) The judge conducting the hearing may allow any other person to in-
tervene and to present testimony.
(d) TRANSCRIPT AND ADDITIONAL TESTIMONY OR ARGUMENT.—A tran-
script shall be prepared of the testimony in the hearing. After the transcript
is prepared, the judge, by notice, may provide for further testimony or hear
argument.
§ 11307. Authority in conducting investigations and hear-
ings
(a) GENERAL.—In conducting an investigation or hearing under this
chapter—
(1) the Special Counsel for Immigration-Related Unfair Employment
Practices and the administrative law judge conducting the investigation
or hearing, under regulations prescribed by the Attorney General, shall
have reasonable access to examine evidence of a person being inves-
tigated; and
239
(2) the administrative law judge may subpena the attendance of wit-
nesses and the production of evidence at any designated place.
(b) JUDICIAL ENFORCEMENT OF SUBPENAS.—If a person disobeys a sub-
pena issued under subsection (a)(2) of this section, an appropriate district
court of the United States, on application by the administrative law judge,
may issue an order to comply with the subpena. The court may punish a
failure to comply with the order of the court as a contempt of court.
§ 11308. Orders of administrative law judges
(a) GENERAL.—In a proceeding by an administrative law judge under
this chapter, the judge shall issue an order and have the order served on
the parties to the proceeding. The order is final unless a petition for review
is filed under section 11309 of this title.
(b) ORDERS FINDING UNFAIR PRACTICES.—(1) If the administrative law
judge finds by a preponderance of the evidence that the person named in
the complaint has engaged, or is engaging, in an immigration-related unfair
employment practice, the judge shall state findings of fact about the prac-
tice and issue and have served on the person an order requiring the person
to cease and desist from the practice.
(2) The order also may require the person—
(A) to comply with section 11103 of this title for not more than 3
years;
(B) to retain for not more than 3 years, and only for use as provided
under section 11103(e) of this title, the name and address of each indi-
vidual applying (whether in person or in writing) for an existing posi-
tion, or for recruitment or referral for a fee, for employment in the
United States;
(C) to hire an individual directly and adversely affected, with or
without back pay;
(D) to pay to the United States Government a civil penalty of—
(i) at least $250, but not more than $2,000, for each individual
discriminated against;
(ii) at least $2,000, but not more than $5,000, for each individ-
ual discriminated against if the person previously was subject to
an order under this subsection;
(iii) at least $3,000, but not more than $10,000, for each indi-
vidual discriminated against if the person previously was subject
to more than one order under this subsection; or
(iv) at least $100, but not more than $1,000, for each individ-
ual discriminated against, for an immigration-related unfair em-
ployment practice described by section 11302(b) of this title;
240
(E) to post notices to employees about their rights under this chap-
ter and the obligations of employers under chapter 111 of this title;
(F) to educate all personnel involved in hiring or complying with this
chapter and chapter 111 of this title about the requirements of this
chapter and chapter 111;
(G) to remove, as appropriate, a false performance review or false
warning from an employee’s personnel file; and
(H) to lift, as appropriate, a restriction on an employee’s assign-
ments, work shifts, or movements.
(3) An order of back pay under paragraph (2)(C) of this subsection may
not require back pay for more than the 2-year period occurring before the
charge was filed with the Special Counsel for Immigration-Related Unfair
Employment Practices. Back pay otherwise allowable shall be reduced by
amounts earned, or earnable with reasonable diligence, during the period
covered by the back pay order. An order may require hiring an individual
or paying back pay to an individual only if the individual was refused em-
ployment for discrimination because of national origin or citizenship status.
(4) In applying this section, if an entity is composed of distinct, physically
separate subdivisions each of which provides separately for the hiring, re-
cruiting, or referring for employment, without reference to the practices of,
and not under control of or common control with, another subdivision, each
subdivision is deemed a separate entity.
(c) DISCRIMINATION DEEMED TO HAVE OCCURRED.—An individual in-
timidated, threatened, coerced, or retaliated against in violation of section
11302(a)(2) of this title is deemed to have been discriminated against under
this section.
(d) ORDERS FINDING NO UNFAIR PRACTICES.—If the administrative law
judge finds by a preponderance of the evidence that the person named in
the complaint has not engaged, and is not engaging, in an immigration-re-
lated unfair employment practice, the judge shall state findings of fact
about such a practice not existing and issue an order dismissing the com-
plaint.
§ 11309. Judicial review of final orders
(a) GENERAL.—A person adversely affected by a final order issued by an
administrative law judge under section 11308 of this title may file a petition
for review of the order in the court of appeals of the United States for the
circuit in which the alleged unfair practice occurred or in which the em-
ployer resides or does business. The petition must be filed within 60 days
after the date the final order is issued.
(b) EXCLUSIVE JURISDICTION.—When the record of the proceedings is
filed with the court, the court has exclusive jurisdiction to review the order.
241
§ 11310. Judicial enforcement of administrative orders
(a) CIVIL ACTIONS FOR ENFORCEMENT.—If a petition for review of an
order of an administrative law judge under section 11308 of this title is not
filed under section 11309 of this title, the Special Counsel for Immigration-
Related Unfair Employment Practices or, if the Special Counsel does not
act, the person that filed the charge with the Special Counsel, may bring
a civil action to enforce the order. The action must be brought in the dis-
trict court of the United States for the judicial district in which a violation
of the order is alleged to have occurred or in which the person against whom
the order is directed resides or does business. The order of the administra-
tive law judge may not be reviewed in the action.
(b) ENFORCEMENT BY COURT OF APPEALS IN ORIGINAL REVIEW.—If
the court of appeals does not reverse an order of an administrative law
judge reviewed under section 11309 of this title, the court may issue an
order enforcing the order of the judge.
§ 11311. Attorney fees
In a proceeding before an administrative law judge under this chapter,
or in a judicial proceeding for review or enforcement of an order of an ad-
ministrative law judge under section 11308 of this chapter, the prevailing
party (except the United States Government) may be awarded reasonable
attorney fees if the losing party’s argument is without reasonable foundation
in law and fact.
§ 11312. Certain agency authority not affected
Except as specifically provided by this chapter, this chapter does not af-
fect the authority of the Equal Employment Opportunity Commission to in-
vestigate allegations of unlawful employment practices.
SUBTITLE IV—REFUGEE AND IMMIGRANT
PROGRAMS
CHAPTER
Sec.
131.
REFUGEE COORDINATION AND ASSISTANCE .....................................
13101
133.
INTERNATIONAL PARTICIPATION AND EMERGENCY ASSIST-
ANCE.
13301
135.
IMMIGRANT EDUCATION ASSISTANCE ..................................................
13501
137.
STATE LEGALIZATION IMPACT-ASSISTANCE GRANTS .....................
13701
139.
REIMBURSEMENT FOR COSTS OF IMPRISONING CUBAN NATION-
ALS AND ILLEGAL ALIENS.
13901
CHAPTER 131—REFUGEE COORDINATION AND
ASSISTANCE
SUBCHAPTER I—POLICY COORDINATION
Sec.
13101.
United States Coordinator for Refugee Affairs.
13102.
Duties of the United States Coordinator for Refugee Affairs.
SUBCHAPTER II—RESETTLEMENT ASSISTANCE
13111.
Congressional intent.
13112.
Definition.
13113.
Office of Refugee Resettlement.
242
13114.
Initial resettlement assistance programs.
13115.
Initial resettlement assistance grants and contracts.
13116.
Project grants and contracts for services.
13117.
Assistance for refugee children.
13118.
Cash and medical assistance.
13119.
Administrative.
13120.
Annual reports.
13121.
Limitations.
13122.
Authorization of appropriations.
SUBCHAPTER III—EDUCATION ASSISTANCE
13131.
Definitions.
13132.
Basic educational services grants.
13133.
Supplementary educational services grants.
13134.
Adult education program grants.
13135.
Applications.
13136.
Use of estimated information and consultation with other agencies.
13137.
State administrative costs.
13138.
Withholding payments.
13139.
Authorization of appropriations and allocation of total amount appropriated.
SUBCHAPTER IV—CUBAN AND HAITIAN ENTRANTS
13151.
Definition.
13152.
Presidential authority.
13153.
General assistance.
SUBCHAPTER I—POLICY COORDINATION
§ 13101. United States Coordinator for Refugee Affairs
The President shall appoint, by and with the advice and consent of the
Senate, a United States Coordinator for Refugee Affairs. The Coordinator
has the rank of ambassador at large.
§ 13102. Duties of the United States Coordinator for Refugee
Affairs
(a) GENERAL AUTHORITY.—The United States Coordinator for Refugee
Affairs is responsible—
(1) to the President in carrying out this section;
(2) for developing overall United States refugee admission and reset-
tlement policy;
(3) for coordinating all United States domestic and international ref-
ugee admission and resettlement programs in a way that ensures that
policy objectives are met timely;
(4) for designing an overall budget strategy to provide individual
agencies with policy guidance on refugee matters in preparing their
budget requests, and to provide the Director of the Office of Manage-
ment and Budget with an overview of all refugee-related budget re-
quests;
(5) for presenting to Congress the President’s overall refugee policy
and the relationship of individual agency refugee budgets to the overall
policy;
(6) for advising the President, the Secretary of State, the Attorney
General, and the Secretary of Health and Human Services on the rela-
243
tionship of overall United States refugee policy to the admission and
resettlement of refugees in the United States;
(7) for representing the United States Government, under the direc-
tion of the Secretary of State, in discussions and negotiations with gov-
ernments of foreign countries and international organizations on refu-
gee matters and, when appropriate, submitting refugee issues for inclu-
sion in other international negotiations;
(8) for developing an effective and responsive liaison between the
Government and voluntary organizations, Governors, mayors, and oth-
ers involved in refugee relief and resettlement work to reflect overall
Government policy;
(9) for recommending to the President and to Congress policies, ob-
jectives, and priorities on Government duties and powers related to ref-
ugee admission and resettlement in the United States; and
(10) for reviewing regulations, guidelines, requirements, criteria, and
procedures of agencies on carrying out duties and powers related to ref-
ugee admission and resettlement in the United States.
(b) CONSULTATION.—In carrying out subsection (a) of this section, the
Coordinator shall consult regularly with State governments, political subdivi-
sions, and private nonprofit voluntary organizations on the sponsorship
process and the intended distribution of refugees.
(c) REPORTS BY SECRETARIES.—The Secretaries of Labor and Education
shall provide the Coordinator with regular reports describing the efforts of
their respective departments in increasing refugee access to programs within
their jurisdictions. The Coordinator shall include information on these pro-
grams in reports submitted under section 13120 of this title.
SUBCHAPTER II—RESETTLEMENT ASSISTANCE
§ 13111. Congressional intent
It is the intent of Congress that in providing refugee assistance under
this subchapter—
(1) employable refugees should be placed in jobs as soon as possible
after the refugees arrive in the United States;
(2) social service expenditures should be focused on employment-re-
lated services, instruction in English-as-a-second-language (in non-work
hours when possible), and case-management services; and
(3) local voluntary organization activities should be carried out in
close cooperation and advance consultation with State and local govern-
ments.
§ 13112. Definition
In this subchapter, ‘‘refugee’’ includes a spouse or child described by sec-
tion 5105(c) of this title.
244
§ 13113. Office of Refugee Resettlement
(a) OFFICE OF REFUGEE RESETTLEMENT.—The Office of Refugee Re-
settlement is an office in the Department of Health and Human Services.
(b) DIRECTOR.—The head of the Office is a Director appointed by the
Secretary of Health and Human Services.
(c) AUTHORITY OF THE DIRECTOR.—In consultation with, and under the
general policy guidance of, the United States Coordinator for Refugee Af-
fairs, the Director shall carry out this subchapter (directly or through ar-
rangements with other agencies) except—
(1) that the Secretaries of Education, Health and Human Services,
and State and the Attorney General may prescribe regulations that
each Secretary or the Attorney General considers appropriate to carry
out this subchapter; and
(2) as otherwise provided by this subchapter.
§ 13114. Initial resettlement assistance programs
(a) EDUCATION AND TRAINING PROGRAMS.—The Director of the Office
of Refugee Resettlement may develop programs of orientation, instruction
in English, job training, and other education and training of refugees that
will assist in their resettlement in the United States. The programs may be
carried out by—
(1) the Director consistent with this subchapter, for refugees in the
United States; and
(2) the Secretary of State, for refugees waiting to enter the United
States.
(b) TEMPORARY CARE PROGRAMS.—In consultation with the United
States Coordinator for Refugee Affairs, the Secretary of Health and Human
Services may make arrangements (including cooperative arrangements with
other agencies) for the temporary care of refugees in the United States in
emergency circumstances, including establishing necessary processing cen-
ters. In carrying out this subsection, the Secretary may waive provisions of
law (except section 13121(b) of this title) on making, carrying out, and
changing contracts and on United States Government expenditures.
(c) MEDICAL PROGRAMS.—(1) In consultation with the Coordinator, the
Secretary of Health and Human Services shall—
(A) ensure that an adequate number of trained personnel are avail-
able at a location at which refugees enter the United States so that
all necessary medical records are available and in order;
(B) provide for identifying refugees with medical conditions affecting
the public health and requiring treatment;
245
(C) ensure that State and local health officials at a resettlement des-
tination in the United States are notified promptly of the arrival of
each refugee and are provided with all applicable medical records; and
(D) provide for monitoring refugees referred to in clause (B) of this
paragraph to ensure that the refugees receive appropriate and timely
treatment.
(2) The Secretary of Health and Human Services shall develop and carry
out ways to monitor and assess the quality of medical screening and related
health services provided to refugees waiting to be resettled in the United
States.
§ 13115. Initial resettlement assistance grants and contracts
(a) GENERAL AUTHORITY.—(1) The Director of the Office of Refugee
Resettlement (or other officer if the President decides the Director should
not administer this subsection) may make grants to, and contracts with,
public agencies and private nonprofit voluntary organizations for the initial
resettlement (including the initial reception and placement with sponsors)
of refugees in the United States. A grant to, or contract with, a private non-
profit voluntary organization shall be consistent with this subchapter, con-
sidering the different resettlement approaches and practices of that organi-
zation. Assistance under this subsection shall be provided in coordination
with other assistance provided under this subchapter. The administering
agency shall use the criteria described by subsection (c) of this section in
awarding or renewing a grant or contract under this section.
(2) An amount provided to an agency or organization under a grant or
contract may be obligated or expended only during the fiscal year in which
the amount is provided, or a subsequent fiscal period approved by the ad-
ministering agency or officer making the contract, to carry out this section.
(b) REQUIREMENTS.—(1) Each grant and contract to an agency or orga-
nization under subsection (a) of this section shall require that the agency
or organization—
(A) provide quarterly performance and financial status reports to the
administering agency;
(B) provide notice—
(i) to the appropriate local welfare office or its local affiliate
when the agency or organization receiving the grant or contract
becomes aware that a refugee is offered employment; and
(ii) to the refugee that notice to the local welfare office or affili-
ate has been given;
(C) when requested by a local welfare office to which a refugee has
applied for cash assistance, provide documentation to that office about
cash or other resources provided directly by the agency or organization
246
receiving the grant or contract to the refugee under this section and
section 13114 of this title;
(D) ensure that a refugee, that the agency or organization receiving
the grant or contract knows has been identified under section
13114(c)(1)(B) of this title as having a medical condition affecting the
public health and requiring treatment, reports to the appropriate health
agency when the refugee resettles in an area;
(E) fulfill its responsibility to provide for the basic needs (including
food, clothing, shelter, and transportation for job interviews and train-
ing) of each refugee resettled, to develop and carry out a resettlement
plan (including the early employment of each refugee resettled), and to
monitor how the plan is being carried out; and
(F) submit to the administering agency an annual report on—
(i) the number of refugees placed (by county of placement) and
the expenditures made during the year covered by the report
under the grant or contract, including the proportion of the ex-
penditures used for administrative purposes and for providing
services;
(ii) the proportion of refugees that the agency or organization
receiving the grant or contract has placed in the prior year who
are receiving cash or medical assistance described by section
13118 of this title;
(iii) the efforts made by the agency or organization receiving the
grant or contract to monitor placement of refugees and the activi-
ties of local affiliates of the agency or organization;
(iv) the extent to which the agency or organization receiving the
grant or contract has coordinated its activities with local social
service providers in a way that avoids duplication of activities, has
provided notice to the local welfare offices, and has reported medi-
cal conditions of certain aliens to local health departments as re-
quired under clause (D) of this paragraph; and
(v) other information the administering agency considers is ap-
propriate in monitoring the effectiveness of the agency or organi-
zation receiving the grant or contract in carrying out its functions
under the grant or contract.
(2) The administering agency shall submit promptly to the Committees
on the Judiciary of the House of Representatives and the Senate a copy
of each report submitted under paragraph (1)(F) of this subsection.
(3) Paragraph (1)(A), (C), and (F) of this subsection applies to a grant
or contract made or renewed after December 5, 1986. Paragraph (1)(E) of
247
this subsection applies to a grant or contract made or renewed after May
5, 1987.
(c) PERFORMANCE CRITERIA.—The administering agency shall prescribe
criteria for the performance of each agency or organization receiving a grant
or contract under subsection (a) of this section. The prescribed criteria shall
include criteria related to that agency’s or organization’s—
(1) efforts to reduce welfare dependency among refugees resettled by
the agency or organization;
(2) collection of travel loans made to refugees resettled by the agency
or organization for travel to the United States;
(3) arrangements for effective local sponsorship and other nonpublic
assistance for refugees resettled by the agency or organization;
(4) cooperation with refugee mutual assistance associations, local so-
cial service providers, health agencies, and welfare offices;
(5) compliance with guidelines established by the Director of the Of-
fice of Refugee Resettlement for placing and resettling refugees in the
United States; and
(6) compliance with other requirements contained in the grant or
contract, including requirements under subsection (b) of this section.
(d) MEDICAL SCREENING AND TREATMENT.—The Director may make a
grant to, or contract with, a State or local health agency for payments to
meet the agency’s costs of providing medical screening and initial medical
treatment to refugees.
§ 13116. Project grants and contracts for services
(a) SERVICE PROJECTS.—(1) The Director of the Office of Refugee Re-
settlement may make grants to, and contracts with, public agencies and pri-
vate nonprofit voluntary organizations for projects specifically designed—
(A) to assist refugees in obtaining skills necessary for economic self-
sufficiency, including projects for job training, employment services,
day care, and professional refresher training and other recertification
services;
(B) to provide instruction in English when necessary even when refu-
gees are employed or are receiving assistance; and
(C) to provide health (including mental health) services, social serv-
ices, and educational and other services when specific needs have been
shown and recognized by the Director.
(2) Amounts available in a fiscal year for grants and contracts under this
subsection shall be allocated among the States based on the total number
of refugees who—
(A) arrived in the United States within the 36 months before the be-
ginning of the fiscal year; and
248
(B) actually are residing in each State (taking into account second-
ary migration) at the beginning of the fiscal year.
(3) A limitation that the Director establishes on that part of amounts al-
located to a State under this subsection that the State may use for services
(except those services described by section 13111(2) of this title) does not
apply if the Director—
(A) receives a plan that has been established by or with the consulta-
tion of political subdivisions; and
(B) decides that the plan provides for the maximum appropriate em-
ployment services for, and the maximum placement of, employable refu-
gees consistent with the performance standards established under sec-
tion 106 of the Job Training Partnership Act (29 U.S.C. 1516).
(b) TARGETED ASSISTANCE PROJECT GRANTS.—(1) The Director may
make a grant to a State for assistance to a political subdivision in the State
that has a demonstrated specific need for additional available resources for
providing services to refugees because of factors such as—
(A) an unusually large refugee population (including secondary mi-
gration);
(B) high refugee concentrations; and
(C) high use of public assistance by refugees.
(2) The Director shall make a grant under this subsection—
(A) primarily to facilitate refugee employment and self-sufficiency;
and
(B) in a way that does not supplant amounts available under other
refugee programs and ensures that at least 95 percent of the amount
of the grant is made available to the political subdivision.
(c) MAINTAINING LEVEL OF SERVICE PROJECTS.—To the extent of avail-
able appropriations, the Director may not—
(1) reduce the maximum average contribution level of the United
States Government for each refugee in the voluntary agency program,
known as the matching grant program and financed under subsection
(a) of this section, below the level in effect under the program for
grants in the fiscal year that ended September 30, 1985; or
(2) increase the percentage grantee matching requirement under the
program above the percentage in effect under the program for grants
in the fiscal year that ended September 30, 1985.
§ 13117. Assistance for refugee children
(a) SPECIAL EDUCATIONAL SERVICES.—Where a need is shown, the Sec-
retary of Education may make grants and contracts for projects to provide
special educational services (including instruction in English) to refugee
children in elementary and secondary schools.
249
(b) CHILD WELFARE SERVICES.—The Director of the Office of Refugee
Resettlement may provide assistance, reimburse States, and make grants to,
and contracts with, public agencies and private voluntary nonprofit organi-
zations to provide child welfare services (including foster care maintenance
payments and services and health care) to a refugee child during the 36-
month period that begins with the first month the child is in the United
States. If a refugee child is unaccompanied by a parent or other close adult
relative (as defined by the Director), those services may be provided until
the month after the child becomes 18 years of age (or a later age prescribed
in the State’s child welfare services plan under part B of title IV of the
Social Security Act (42 U.S.C. 620 et seq.) for the availability of those serv-
ices to another child in the State).
(c) PLACING UNACCOMPANIED CHILDREN.—(1) The Director shall try to
arrange, under the laws of the States, to place an unaccompanied refugee
child referred to in subsection (b) of this section who has been accepted for
admission to the United States. The Director shall make the arrangements
before or as soon as possible after the child arrives in the United States.
If necessary, the Director shall assume legal and financial responsibility for
the child during the period before the child is placed when the child is in
the United States or is traveling to the United States. The Director may
make necessary decisions to provide for the child’s immediate care.
(2) In carrying out this subsection, the Director may make contracts with
appropriate public agencies and private nonprofit voluntary organizations
under conditions the Director considers appropriate.
(3) The Director shall maintain a list of—
(A) all unaccompanied refugee children who have entered the United
States after April 1, 1975;
(B) the name and last known residence of each living parent of each
of those children at the child’s time of arrival; and
(C) the locations, status, and progress of the children.
§ 13118. Cash and medical assistance
(a) GENERAL AUTHORITY.—The Director of the Office of Refugee Reset-
tlement may provide assistance, reimburse States, and make grants to, and
contracts with, public agencies and private nonprofit voluntary organizations
for 100 percent of the cash and medical assistance provided to a refugee
during the 36-month period that begins with the first month the refugee
enters the United States. The Director also may pay for the identifiable and
reasonable administrative costs of providing the assistance.
(b) CONDITIONS AND LIMITATION.—(1) Except for good cause shown,
cash assistance may be provided to an employable refugee under this section
only if the refugee—
250
(A) registers with an appropriate public agency or private nonprofit
voluntary organization providing employment services described by sec-
tion 13116(a)(1)(A) of this title, or, if such an agency or organization
is not available, with an appropriate State or local employment service;
(B) participates in an available and appropriate service or targeted
assistance project grant financed under section 13116 of this title pro-
viding job or language training in the area in which the refugee resides;
and
(C) accepts an appropriate offer of employment.
(2)(A) Cash assistance provided under this section shall be suspended for
any alien entering the United States as a refugee after March 31, 1987,
who refuses—
(i) an offer of employment that the public agency or private non-
profit voluntary organization providing initial resettlement assistance
under section 13115(a) of this title or the appropriate State or local
employment service decides is appropriate;
(ii) to go to a job interview that has been arranged through the
agency, organization, or employment service; or
(iii) to participate in a service or targeted assistance project grant
referred to in paragraph (1)(B) of this subsection that the agency, or-
ganization, or employment service decides is available and appropriate.
(B) The assistance shall be suspended for 3 months for the first refusal
and for 6 months for any subsequent refusal. The refugee shall be given
an opportunity for a proceeding before cash assistance is suspended.
(3) A refugee who is a full-time student in an institution of higher edu-
cation, as defined by the Director after consultation with the Secretary of
Education, may not receive cash assistance.
(c) INSTRUCTION AND TRAINING FOR REFUGEES RECEIVING ASSIST-
ANCE.—The Director shall develop plans to provide instruction in English
and other appropriate services and training to a refugee receiving cash as-
sistance.
(d) LIMITATION ON USE OF AMOUNTS.—If a refugee is eligible for aid
or assistance under a State plan approved under part A of title IV or under
title XIX of the Social Security Act (42 U.S.C. 601 et seq., 1396 et seq.)
or for supplemental security income benefits (including State supplementary
payments) under the program established under title XVI of that Act (42
U.S.C. 1381 et seq.), amounts to carry out this section may be used only
to pay the part of the aid or assistance not paid by the United States Gov-
ernment under part A of title IV or under title XIX for cash and medical
assistance provided the refugee, and for State supplementary payments.
251
(e) MEDICAL ASSISTANCE FOR REFUGEES OTHERWISE INELIGIBLE.—
During the one-year period after a refugee enters the United States, the Di-
rector may authorize medical assistance of the kind provided under sub-
section (a) of this section to a refugee if—
(1) the refugee does not qualify for assistance under a State plan
approved under title XIX of that Act (42 U.S.C. 1396 et seq.) because
of financial resources or income requirements of the plan; and
(2) the Director decides that—
(A) providing the medical services will encourage economic self-
sufficiency or avoid a significant burden on State and local govern-
ments; and
(B) the refugee meets alternative financial resources and income
requirements the Director establishes.
(f) ALTERNATIVE ASSISTANCE PROJECTS.—(1) The Secretary of Health
and Human Services shall develop and carry out alternative projects for ref-
ugees who have been in the United States less than 36 months. The projects
shall provide refugees with interim support, medical services, support serv-
ices, and case-management services, as needed, in a way that encourages
self-sufficiency, reduces welfare dependency, and fosters greater coordina-
tion among public agencies, private nonprofit voluntary organizations pro-
viding resettlement assistance, and service providers. The Secretary may
provide an alternative project to cover a specific group of refugees who have
been in the United States at least 36 months if the Secretary decides that—
(A) refugees in the group have been significantly and disproportion-
ately dependent on welfare;
(B) those refugees need the services provided under the project to
become self-sufficient; and
(C) including those refugees under the project would be cost-effec-
tive.
(2) A refugee in an alternative project may not receive cash or medical
assistance under another subsection of this section or under part A of title
IV or under title XIX of that Act (42 U.S.C. 601 et seq., 1396 et seq.).
(3) Amounts appropriated to carry out this subchapter, section 13901 of
this title, or part A of title IV or title XIX of that Act (42 U.S.C. 601 et
seq., 1396 et seq.) may be used to carry out and evaluate alternative
projects under this subsection, to the extent the use of those amounts is
consistent with the purposes of this subchapter, section 13901, part A of
title IV, and title XIX.
(g) NOTIFICATION OF APPLICATION BY REFUGEE FOR ASSISTANCE.—As
a condition for receiving assistance, reimbursement, or a contract under this
section, a State, public agency, or private nonprofit voluntary organization
252
must ensure that when a refugee applies for cash or medical assistance for
which assistance or reimbursement is provided under this section, the State,
agency, or organization will notify promptly the agency or organization (or
local affiliate of the organization) that provided for the initial resettlement
of the refugee under section 13115(a) of this title that the refugee has ap-
plied for the assistance.
§ 13119. Administrative
(a) AUTHORITY OF THE DIRECTOR.—In providing assistance under this
subchapter, the Director of the Office of Refugee Resettlement, to the ex-
tent of available appropriations—
(1) shall make available sufficient resources for employment training
and placement to permit refugees to achieve economic self-sufficiency
as soon as possible;
(2) shall provide refugees with the opportunity to acquire sufficient
instruction in English to enable them to become resettled effectively as
quickly as possible;
(3) shall ensure that cash assistance is made available to refugees
as provided under section 13118(b) of this title in a way that will not
discourage economic self-sufficiency;
(4) shall ensure that women have the same opportunities as men to
participate in training and instruction;
(5) shall make a periodic assessment, based on refugee population
and other relevant factors, of the relative needs of refugees for assist-
ance and services under this subchapter and the resources available to
meet those needs;
(6) in allocating resources, shall avoid duplicating services and pro-
vide for maximum coordination among agencies and organizations pro-
viding related services; and
(7) shall compile and maintain information on—
(A) the secondary migration of refugees in the United States;
and
(B) the proportion of refugees, by State of residence and nation-
ality, receiving cash or medical assistance described by section
13118 of this title.
(b) LIMITATION ON DELEGATION.—The Director may not delegate to a
State government or political subdivision authority to review or approve a
grant or contract under this subchapter or the terms under which a grant
or contract is made.
(c) NONDISCRIMINATION.—Assistance and services under this subchapter
shall be provided to refugees without regard to race, religion, nationality,
sex, or political opinion.
253
(d) CONSULTATION WITH STATE AND LOCAL GOVERNMENTS AND ORGA-
NIZATIONS.—(1) The Director and the administering agency under section
13115(a) of this title, together with the United States Coordinator for Refu-
gee Affairs, shall consult at least quarterly with State governments, political
subdivisions, and private nonprofit voluntary organizations on the sponsor-
ship process and the intended distribution of refugees among the States and
political subdivisions before placing refugees in each of the States and politi-
cal subdivisions.
(2) In consultation with representatives of private nonprofit voluntary or-
ganizations, State governments, and political subdivisions, the Director shall
develop and carry out policies and strategies for placing and resettling refu-
gees in the United States. To the extent practicable and except under un-
usual circumstances the Director may recognize, the policies and strategies
shall—
(A) ensure that a refugee is not placed or resettled initially in an
area highly impacted (as decided under regulations prescribed by the
Director after consultation with private nonprofit voluntary organiza-
tions, State governments, and political subdivisions) by the presence of
refugees or comparable populations unless the refugee has a spouse,
parent, sibling, or child residing in that area;
(B) provide for a mechanism for representatives of local affiliates of
private nonprofit voluntary organizations to meet at least quarterly
with representatives of State governments and political subdivisions to
plan and coordinate, in advance of the arrival of the refugees, the ap-
propriate placement of the refugees among the States and political sub-
divisions; and
(C) consider—
(i) the proportion of refugees and comparable entrants in the
population in the area;
(ii) the availability of employment opportunities, affordable
housing, and public and private resources for refugees in the area,
including educational, health care, and mental health services;
(iii) the likelihood of refugees placed in the area becoming self-
sufficient and free from long-term dependence on public assist-
ance; and
(iv) the secondary migration of refugees to and from the area
that is likely to occur.
(3) To the maximum extent possible and consistent with the policies and
strategies developed under paragraph (2) of this subsection, the administer-
ing agency under section 13115(a) of this title shall consider the rec-
254
ommendations of the State in deciding where to place refugees in that
State.
(4) In providing assistance to refugees, a State government or political
subdivision shall consider the recommendations of, and assistance provided
by, a public agency or private nonprofit voluntary organization receiving a
grant or contract under section 13115(a) of this title.
(e) REQUIREMENTS FOR GRANTS AND CONTRACTS.—A grant or contract
may be made under this subchapter only when an appropriate proposal and
application (that includes a description of the ability of a public agency or
private nonprofit voluntary organization to provide the services specified in
the proposal) are submitted to and approved by the appropriate administer-
ing official. A grant shall be made to, or a contract shall be made with,
a public agency or private nonprofit voluntary organization that the admin-
istering official decides can best provide the services. Payment under the
grant or contract may be made in advance or by reimbursement.
(f) GRANT AND CONTRACT PROPOSALS AND APPLICATIONS.—To receive
assistance under this subchapter, a State—
(1) must submit to the Director a plan that—
(A) describes how the State plans to encourage effective refugee
resettlement and to promote economic self-sufficiency as quickly as
possible;
(B) describes how the State will ensure that instruction in Eng-
lish and employment services are made available to refugees re-
ceiving cash assistance;
(C) provides for the designation of a State officer or employee
to be responsible for ensuring coordination of public and private
resources in refugee resettlement;
(D) provides for the care and supervision of, and legal respon-
sibility for, unaccompanied refugee children in the State; and
(E) provides for identifying refugees who at the time of resettle-
ment in the State have medical conditions requiring, or medical
histories indicating a need for, treatment or observation and pro-
vides necessary monitoring of the treatment or observation;
(2) must meet standards, goals, and priorities developed by the Di-
rector that—
(A) ensure effective resettlement of refugees;
(B) promote economic self-sufficiency of refugees as quickly as
possible; and
(C) provide that services are provided efficiently; and
255
(3) within a reasonable time after the end of each fiscal year, must
submit to the Director a report on the uses of amounts provided under
this subchapter for which the State is responsible for administering.
(g) AUTHORITY TO MAKE LOANS AND ACCEPT GIFTS.—In carrying out
this subchapter, each appropriate administering official may—
(1) make loans; and
(2) accept and use money, property, and services made available by
gift, devise, bequest, grant, or otherwise to carry out this subchapter.
(h) SYSTEM TO MONITOR ASSISTANCE.—The Secretary of Health and
Human Services, and the Secretary of State in carrying out sections 13114
and 13115 of this title, shall maintain a system of monitoring assistance
provided under this subchapter. The system shall include—
(1) evaluations of the effectiveness of the programs and projects car-
ried out under this subchapter and the performance of States, grantees,
and contractors;
(2) financial audits and other appropriate monitoring to detect
fraud, abuse, and mismanagement in operating the programs and
projects; and
(3) information collection on services provided and results achieved.
(i) INFORMATION PROVIDED BY REFUGEES.—The Attorney General shall
provide the Director with information provided by refugees with their appli-
cations for a change in status. The Director shall compile, summarize, and
evaluate the information.
§ 13120. Annual reports
In consultation with the United States Coordinator for Refugee Affairs,
the Secretary of Health and Human Services shall submit a report to the
Committees on the Judiciary of the House of Representatives and the Sen-
ate not later than each January 31 on activities under this subchapter for
the prior fiscal year. Each report shall include—
(1) a current profile of the employment and labor force statistics for
refugees who entered the United States under this title—
(A) during the 5 fiscal years immediately before the fiscal year
in which the report is submitted; and
(B) before that 5-year period and who have been significantly
and disproportionately dependent on welfare;
(2) a description of the extent to which refugees received each kind
of assistance and service under this subchapter during the 5 fiscal
years immediately before the fiscal year in which the report is submit-
ted;
(3) a description of the geographic locations of refugees;
256
(4) a summary of the results of the monitoring conducted under sec-
tion 13119(h) of this title for the fiscal year;
(5) a description of—
(A) the activities, expenditures, and policies of the Office of Ref-
ugee Resettlement under this subchapter;
(B) the activities of States, voluntary organizations, and spon-
sors of refugees under this subchapter; and
(C) plans of the Director of the Office of Refugee Resettlement
for improving refugee resettlement;
(6) evaluations of the extent to which—
(A) services provided under this subchapter are assisting refu-
gees in achieving economic self-sufficiency, ability in English, and
employment commensurate with their skills and abilities; and
(B) fraud, abuse, and mismanagement have been reported in
providing assistance or services;
(7) a description of the assistance provided under section 13118(e)
of this title;
(8) a summary of the locations and status of unaccompanied refugee
children admitted to the United States; and
(9) a summary of the information compiled and evaluated under sec-
tion 13119(i) of this title.
§ 13121.
Limitations
(a) CONSOLIDATED GRANTS PROHIBITED.—Amounts made available to a
State or political subdivision to carry out this subchapter (except section
13115(a) of this title) may not be in the form of a block grant, per capita
grant, or similar consolidated grant. Amounts shall be made available under
separate grants or contracts for—
(1) medical screening and initial medical treatment for refugees
under section 13115(d) of this title;
(2) social services to refugees under section 13116(a) of this title;
(3) targeted assistance project grants under section 13116(b) of this
title; and
(4) assistance for refugee children under section 13117(b) and (c)
of this title.
(b) CONTRACTS.—A contract made under this subchapter is effective only
to the extent and in the amount provided in advance by an appropriation
law.
§ 13122. Authorization of appropriations
Amounts necessary to carry out this subchapter and section 13901 of this
title may be appropriated for the fiscal year ending September 30, 1994.
257
SUBCHAPTER III—EDUCATION ASSISTANCE
§ 13131. Definitions
In this subchapter—
(1) ‘‘elementary school’’, ‘‘local educational agency’’, ‘‘secondary
school’’, ‘‘State’’, and ‘‘State educational agency’’ have the same mean-
ings given those terms in section 1471 of the Elementary and Second-
ary Education Act of 1965 (20 U.S.C. 2891).
(2) ‘‘elementary or secondary nonpublic school’’ means a school—
(A) complying with the compulsory education laws of the State
in which it is located; and
(B) exempt from taxation under section 501(c)(3) of the Inter-
nal Revenue Code of 1986 (26 U.S.C. 501(c)(3)).
(3) ‘‘eligible participant’’ means an alien—
(A) during the 36-month period that begins with the first month
the alien entered the United States, who—
(i) has been admitted to the United States as a refugee
under section 5105 of this title;
(ii) has been paroled into the United States as a refugee
under section 6123 of this title; or
(iii) has fled from the alien’s country of origin and, under
an executive order, has been allowed to enter and remain in
the United States indefinitely for humanitarian reasons;
(B) during the 36-month period that begins with the month the
alien began applying for asylum, who is applying for, or has been
granted, asylum in the United States; or
(C) during the 36-month period that begins with the first month
the alien entered the United States as a Cuban-Haitian entrant
or otherwise became a Cuban-Haitian entrant, who entered the
United States after October 31, 1979, and is in the United States
classified as a Cuban-Haitian entrant.
§ 13132. Basic educational services grants
(a) GRANTS.—The Secretary of Education shall make a grant to each
State educational agency for each fiscal year to assist local educational
agencies of the State in providing basic educational services for eligible par-
ticipants enrolled in the elementary and secondary public schools under the
jurisdiction of the local educational agencies of the State. The State edu-
cational agency may use the grant only as provided in its application ap-
proved under section 13135(b) of this title.
(b) APPLICATIONS.—To receive a grant under this section, the State edu-
cational agency must submit an application to the Secretary. In the applica-
tion, the State educational agency must—
258
(1) agree that payments under the grant will be used as provided
by subsection (a) of this section;
(2) agree to ensure that those payments will be allocated among the
local educational agencies in the State using the same formula and re-
ductions for the local educational agencies as the Secretary is required
to use in making allocations to State educational agencies under sub-
section (d) of this section;
(3) specify the amounts referred to in subsection (d) of this section
that are made available under other laws of the United States for ex-
penditure in the State for the same purpose for which an amount is
made available under this section and the local educational agencies to
which those amounts are available; and
(4) comply with section 13135(a) of this title.
(c) PRESCRIBING GRANT FORMULA.—As soon as possible, the Secretary
shall prescribe a formula to be used in determining the amount of the grant
to which each State educational agency (except the agencies for American
Samoa, Guam, the Northern Mariana Islands, the Trust Territory of the
Pacific Islands, and the Virgin Islands) is entitled under this section for a
fiscal year. The formula shall be based on the full amount authorized under
section 13139(b) of this title. In prescribing the formula, the Secretary—
(1) shall consider—
(A) the number of years each eligible participant assisted under
this section has resided in the United States; and
(B) the relative costs, by grade level, of educating elementary
and secondary school children; and
(2) shall provide that amounts be allocated without regard to dif-
ferences in educational costs among different geographical areas.
(d) ALLOCATIONS.—The Secretary shall allocate the amount appropriated
to carry out this section for a fiscal year among the State educational agen-
cies (except the agencies for American Samoa, Guam, the Northern Mariana
Islands, the Trust Territory of the Pacific Islands, and the Virgin Islands).
Except as provided by section 13136 of this title, the amount of the grant
to which an agency is entitled under this section for a fiscal year is equal
to the amount allocated to it under the formula, reduced by the amounts
available for that fiscal year under other laws of the United States for ex-
penditure in the State for the same purpose for which an amount is made
available under this section. However, the reduction shall be made only to
the extent the amounts are available under the other laws—
(1) for that purpose specifically because the individuals served by the
amounts have refugee, parolee, or asylum status; and
(2) to assist individuals eligible for services under this section.
259
(e) GRANT
AMOUNTS
FOR
TERRITORIES
AND
POSSESSIONS.—The
amounts of the grants to which the State educational agencies of American
Samoa, Guam, the Northern Mariana Islands, the Trust Territory of the
Pacific Islands, and the Virgin Islands are entitled under this section are
the amounts the Secretary determines they need based on criteria the Sec-
retary prescribes. The total amount of those grants for a period may not
be more than one percent of the amount authorized to be appropriated to
carry out this section during the period. If the total of the amounts the Sec-
retary determines those agencies need is more than one percent, the amount
of the grant to each of those agencies is reduced proportionately so that the
total is not more than one percent.
§ 13133. Supplementary educational services grants
(a) DEFINITIONS.—In this section—
(1) ‘‘enrolled eligible participant in the State’’ means an eligible par-
ticipant enrolled in an elementary or secondary public school under the
jurisdiction of a qualified local educational agency in the State or in
an elementary or secondary nonpublic school in the district served by
a qualified local educational agency in the State.
(2) ‘‘qualified local educational agency’’ means a local educational
agency that—
(A) during the fiscal year for which a grant is to be made under
this section, has enrolled in the elementary and secondary public
schools under its jurisdiction and in the elementary and secondary
nonpublic schools in the district it serves a number of eligible par-
ticipants receiving supplementary educational services during the
fiscal year at least equal to the lesser of—
(i) 500; or
(ii) 5 percent of the total number of students enrolled in
those public or nonpublic schools during that fiscal year; or
(B) is eligible to receive assistance because of section 3(b)(last
sentence) and (c)(2)(B) of the Act of September 30, 1950 (20
U.S.C. 238(b)(last sentence) and (c)(2)(B)).
(b) GENERAL AUTHORITY.—(1) The Secretary of Education shall make
a grant, as provided by this subchapter, to each State educational agency
for each fiscal year to provide supplementary educational services for en-
rolled eligible participants in the State. Those services include—
(A) services necessary to enable eligible participants to perform satis-
factorily, including—
(i) instruction in English;
(ii) other bilingual educational services; and
(iii) special materials and supplies;
260
(B) additional basic instructional services directly attributable to the
presence of eligible participants in the school districts, including—
(i) additional classroom supplies;
(ii) overhead;
(iii) construction;
(iv) acquiring or renting space; and
(v) transportation; and
(C) special inservice training of personnel who will provide the in-
structional services described by clauses (A) and (B) of this paragraph.
(2) The State educational agency may use the grant only as provided in
its application as approved under section 13135(b) of this title.
(c) APPLICATIONS.—To receive a grant under this section, a State edu-
cational agency must submit an application to the Secretary. In the applica-
tion, the State educational agency must—
(1) agree to administer, or supervise the administration of, the edu-
cational programs, services, and activities paid for under this section;
(2) agree to ensure that payments under the grant will be used as
provided by subsection (b) of this section;
(3) agree to ensure that those payments will be allocated among the
local educational agencies in the State using the same formula and re-
ductions for the local educational agencies as the Secretary is required
to use in making allocations to State educational agencies under sub-
section (d) of this section;
(4) specify the amounts referred to in subsection (d)(2) of this sec-
tion that are made available under other laws of the United States to
agencies or other entities for educational or education-related services
or activities in the State because of a significant concentration of eligi-
ble participants and the local educational agencies that have jurisdic-
tion over elementary and secondary public schools, or that serve ele-
mentary and secondary nonpublic schools, in which are enrolled eligible
participants who receive services paid for by those amounts;
(5) agree to ensure the Secretary that—
(A) to the extent consistent with the number of eligible partici-
pants enrolled in elementary and secondary nonpublic schools in
the district served by a local educational agency, the local edu-
cational agency, after consulting with the appropriate officials of
the schools, will provide secular, neutral, and nonideological mate-
rials, equipment, and services necessary to educate those eligible
participants;
(B) a public agency will—
261
(i) administer the amounts provided under this section for
the materials, equipment, and services referred to in
subclause (A) of this clause; and
(ii) own and administer property that is repaired, remod-
eled, or constructed with those amounts;
(C) those amounts will not be commingled with State or local
money; and
(D) a public agency will provide to each of those elementary or
secondary nonpublic schools the services referred to in subclause
(A) of this clause through—
(i) officers and employees under the control of the agency;
or
(ii) a contract with a person or agency that is under the
control of the public agency and, when providing the services,
is independent of the school and of any religious organization;
and
(6) comply with section 13135(a) of this title.
(d) ALLOCATIONS.—(1) The Secretary shall allocate the amount appro-
priated to carry out this section for a fiscal year among the State edu-
cational agencies (except the agencies for American Samoa, Guam, the
Northern Mariana Islands, the Trust Territory of the Pacific Islands, and
the Virgin Islands). Except as provided by this section and section 13136
of this title, the amount of the grant to which an agency is entitled under
this section for a fiscal year is equal to the sum of—
(A) the product of—
(i) the number of aliens who are enrolled eligible participants
in the State, during the period for which the determination of that
number is made, and who have been eligible participants less than
one year; multiplied by
(ii) $700;
(B) the product of—
(i) the number of aliens who are enrolled eligible participants
in the State, during the period for which the determination is
made, and who have been eligible participants at least one year
but not more than 2 years; multiplied by
(ii) $500; and
(C) the product of—
(i) the number of aliens who are enrolled eligible participants
in the State, during the period for which the determination is
made, and who have been eligible participants more than 2 years
but not more than 3 years; multiplied by
262
(ii) $300.
(2) If amounts are available for a fiscal year under other laws of the
United States to agencies or other entities for educational or education-re-
lated services or activities in the State because of a significant concentration
of eligible participants, the amount of the grant under paragraph (1) of this
subsection for that fiscal year is reduced by those amounts.
(e) REALLOCATION OF UNUSED AMOUNTS.—When the Secretary deter-
mines that a part of a payment made to a State educational agency under
this section for a fiscal year will not be used by the agency to carry out
the purpose for which the payment was made, the Secretary shall make that
part available to another State educational agency to the extent the Sec-
retary decides the other agency can use the additional amount to carry out
the purpose. An amount made available under this subsection to a State
educational agency from an appropriation for a fiscal year is deemed in this
section to be a part of the grant (as determined under subsection (d) of
this section) to that agency for that fiscal year, and remains available until
the end of the next fiscal year.
(f) GRANT
AMOUNTS
FOR
TERRITORIES
AND
POSSESSIONS.—The
amounts of the grants to which the State educational agencies of American
Samoa, Guam, the Northern Mariana Islands, the Trust Territory of the
Pacific Islands, and the Virgin Islands are entitled under this section are
the amounts the Secretary determines they need based on criteria the Sec-
retary prescribes. The total amount of those grants for a period may not
be more than one percent of the amount authorized to be appropriated to
carry out this section during the period. If the total of the amounts the Sec-
retary determines those agencies need is more than one percent, the amount
of the grant to each of those agencies is reduced proportionately so that the
total is not more than one percent.
(g) PROVIDING ASSISTANCE
TO NONPUBLIC SCHOOLS WHEN STATE
DOES NOT.—If a State is prohibited by law from providing materials,
equipment, and services for children enrolled in elementary and secondary
nonpublic schools as required by subsection (c)(5) of this section, or if the
Secretary decides that a local educational agency has failed substantially to
or will not provide for the participation on an equitable basis of eligible par-
ticipants enrolled in those schools, the Secretary—
(1) may waive the requirements of subsection (c)(5) of this section;
and
(2) subject to the other requirements of this subchapter, shall ar-
range that materials, equipment, and services be provided for those eli-
gible participants.
263
§ 13134. Adult education program grants
(a) GENERAL AUTHORITY.—(1) The Secretary of Education shall make
a grant, as provided by this subchapter, to each State educational agency
for each fiscal year to be used to provide adult education programs to eligi-
ble participants at least 16 years of age in need of the services and not en-
rolled in an elementary or secondary public school under the jurisdiction of
a local educational agency. The grant may be used for—
(A) programs of instruction—
(i) to teach the eligible participants basic reading and mathe-
matics;
(ii) to develop and enhance skills needed by the eligible partici-
pants; and
(iii) to promote literacy among the eligible participants;
(B) administrative costs of planning and operating the programs re-
ferred to in clause (A) of this paragraph;
(C) educational support services needed by the eligible participants,
including services to guide and counsel the eligible participants about
educational, career, and employment opportunities; and
(D) special projects designed to operate with existing programs and
activities that develop occupational and related skills, particularly pro-
grams authorized under the Job Training Partnership Act (29 U.S.C.
1501 et seq.) or the Carl D. Perkins Vocational Education Act (20
U.S.C. 2301 et seq.).
(2) The State educational agency may use the grant only as provided in
its application as approved under section 13135(b) of this title.
(b) APPLICATIONS.—To receive a grant under this section, the State edu-
cational agency must submit an application to the Secretary. In the applica-
tion, the State educational agency must—
(1) agree that payments under the grant will be used as provided
by subsection (a) of this section;
(2) agree to make periodic reports to the Secretary evaluating the
effectiveness of those payments;
(3) specify the amounts referred to in subsection (c)(2) of this sec-
tion that are made available under other laws of the United States for
expenditure in the State for the same purpose for which an amount is
made available under this section; and
(4) comply with section 13135(a) of this title.
(c) ALLOCATIONS.—(1) The Secretary shall allocate the amount appro-
priated to carry out this section for a fiscal year among the State edu-
cational agencies (except the agencies for American Samoa, Guam, the
Northern Mariana Islands, the Trust Territory of the Pacific Islands, and
264
the Virgin Islands). Except as provided by paragraph (2) of this subsection
and section 13136 of this title, the amount of the grant to which an agency
is entitled under this section for a fiscal year is equal to the product of—
(A) the number of eligible participants at least 16 years of age who,
during the period for which the determination of that number is made,
are enrolled in programs of instruction described by subsection
(a)(1)(A) of this section and offered in the State, but who are not en-
rolled in elementary and secondary public schools under the jurisdiction
of local educational agencies; multiplied by
(B) $300.
(2) If amounts are available for a fiscal year under other laws of the
United States for expenditure in the State for the same purpose for which
an amount is made available under this section, the amount of the grant
under paragraph (1) of this subsection for that fiscal year is reduced by
those amounts. However, the reduction is made only to the extent the
amounts are available under the other laws—
(A) for that purpose specifically because the individuals served by the
amounts have refugee, parolee, or asylum status; and
(B) to assist individuals eligible for services under this section.
(d) METHODS OF PROVIDING PROGRAMS.—(1) A State educational agen-
cy may provide adult education programs directly or may make grants to,
or contracts with, local educational agencies, public agencies, and private
nonprofit voluntary organizations to provide the programs. The State edu-
cational agency shall review an application for a grant or contract under
this subsection in a way that is consistent with the purposes of section
306(b)(12) and (13) of the Adult Education Act.
(2) The State educational agency shall use the grant it receives under
this section in a way that enables the maximum number of eligible partici-
pants at least 16 years of age residing in the State to receive education
under the programs of instruction described by subsection (a)(1)(A) of this
section.
(e) GRANT
AMOUNTS
FOR
TERRITORIES
AND
POSSESSIONS.—The
amounts of the grants to which the State educational agencies of American
Samoa, Guam, the Northern Mariana Islands, the Trust Territory of the
Pacific Islands, and the Virgin Islands are entitled under this section are
the amounts the Secretary determines they need based on criteria the Sec-
retary prescribes. The total amount of those grants for a period may not
be more than one percent of the amount authorized to be appropriated to
carry out this section during the period. If the total of the amounts the Sec-
retary determines those agencies need is more than one percent, the amount
265
of the grant to each of those agencies is reduced proportionately so that the
total is not more than one percent.
§ 13135. Applications
(a) REQUIREMENTS.—(1) In its application for a grant under this sub-
chapter, a State educational agency must agree—
(A) to ensure that it will not disapprove finally any part of a local
educational agency’s application for an amount of a grant to the State
educational agency under section 13132, 13133, or 13134 of this title
without giving the local educational agency reasonable notice and op-
portunity for a proceeding; and
(B) to make reports the Secretary of Education reasonably requires
to carry out this subchapter.
(2) The State educational agency must submit an application at the time,
in the way, and containing or accompanied by information, the Secretary
requires.
(b) APPROVAL.—The Secretary shall approve an application meeting the
requirements of this section and section 13132, 13133, or 13134 of this
title, as the case may be. The Secretary may not disapprove finally an appli-
cation without giving the applicant reasonable notice and opportunity for a
hearing on the record.
§ 13136. Use of estimated information and consultation with
other agencies
(a) USE OF ESTIMATES.—When actual satisfactory information is not
available, the Secretary of Education shall use estimates to determine for
any period the number of eligible participants and the amount of a reduc-
tion required under section 13132(d), 13133(d)(2), or 13134(c)(2) of this
title. A determination based on an overestimate or underestimate may not
deprive a State educational agency of any part of the amount the agency
would be entitled to receive under this subchapter if the determination were
based on accurate information.
(b) CONSULTATION WITH OTHER AGENCIES.—To the extent it will make
it easier to determine the amount of a reduction required under section
13132(d), 13133(d)(2), or 13134(c)(2) of this title, the Secretary shall con-
sult with the heads of other agencies providing assistance to eligible partici-
pants—
(1) to obtain information about the amounts those agencies disburse
for educational purposes under programs the agency heads administer;
and
(2) when feasible, to coordinate the programs those agency heads ad-
minister and the programs under this subchapter.
266
§ 13137. State administrative costs
The Secretary of Education may pay each State educational agency an
amount equal to the amount the agency expends in carrying out its duties
and powers properly and efficiently under this subchapter. However, the
total payments for a period may not be more than 2 percent of the amount
the agency receives for the period under this subchapter.
§ 13138. Withholding payments
(a) AUTHORITY TO WITHHOLD.—When the Secretary of Education de-
cides that a State educational agency receiving payments under section
13132, 13133, or 13134 of this title, or a local educational agency or other
entity receiving payments from the State educational agency under section
13134, is not complying with a requirement of this subchapter that applies
to the section, the Secretary, until satisfied that there is no longer a failure
to comply, shall—
(1) stop making payments to the State educational agency under sec-
tion 13132, 13133, or 13134 of this title; or
(2) prohibit the State educational agency from making payments
under section 13134 to the local educational agency or other entity that
is causing, or involved in, the failure.
(b) NOTICE AND OPPORTUNITY FOR PROCEEDING.—The Secretary—
(1) may act under subsection (a) of this section only after giving the
State educational agency reasonable notice and opportunity for a pro-
ceeding; and
(2) shall notify the State educational agency of the action the Sec-
retary is taking under subsection (a) of this section.
§ 13139. Authorization of appropriations and allocation of
total amount appropriated
(a) GENERAL AUTHORIZATION OF APPROPRIATIONS.—Amounts necessary
to make grants to each State educational agency under this subchapter and
to pay for administrative costs under section 13137 of this title may be ap-
propriated for the fiscal year ending September 30, 19l. The amounts
shall be appropriated in a lump sum for all programs under this subchapter.
(b) AUTHORIZATION
OF APPROPRIATIONS
FOR BASIC PUBLIC EDU-
CATIONAL SERVICES GRANTS.—To make grants to State educational agen-
cies in the way provided under this section, an amount may be appropriated
under subsection (a) of this section for each fiscal year equal to the product
of—
(1) the number of eligible participants enrolled in elementary or sec-
ondary public schools under the jurisdiction of local educational agen-
cies in all States (except American Samoa, Guam, the Northern Mari-
ana Islands, the Trust Territory of the Pacific Islands, and the Virgin
267
Islands) during the fiscal year for which the determination of that
number is made; multiplied by
(2) $400.
(c) ALLOCATIONS OF APPROPRIATIONS.—(1) If the amounts appropriated
for a fiscal year to make grants under this subchapter are not enough to
pay the total amount of the grants to which State educational agencies are
entitled under sections 13132–13134 of this title for the fiscal year, the al-
location to each agency under each of those sections shall be ratably reduced
so that the total of the allocations is not more than the amounts appro-
priated.
(2) Allocations reduced under paragraph (1) of this subsection shall be
increased on the same basis that they were reduced if amounts later become
available to make grants under this subchapter for the period.
SUBCHAPTER IV—CUBAN AND HAITIAN ENTRANTS
§ 13151. Definition
In this subchapter, ‘‘Cuban or Haitian entrant’’ means—
(1) an alien granted parole status as a Cuban/Haitian Entrant (Sta-
tus Pending) or granted another special status later established under
law for nationals of Cuba or Haiti, without regard to the status of the
alien when assistance is provided under this subchapter; and
(2) any other national of Cuba or Haiti—
(A)(i) paroled into the United States who has not acquired an-
other status under this title;
(ii) who is the subject of exclusion or deportation proceedings
under this title; or
(iii) having an application for asylum pending before the Attor-
ney General; and
(B) about whom a final, nonappealable, and legally enforceable
exclusion or deportation order has not been entered.
§ 13152. Presidential authority
The President has the same duties and powers related to a Cuban or Hai-
tian entrant as the duties and powers vested under subchapter II of this
chapter. Those duties and powers apply to assistance and services provided
to a Cuban or Haitian entrant at any time after the entrant’s arrival in
the United States, including periods before October 10, 1980. The President
may provide by regulation that benefits granted under a law of the United
States (except this title) to an individual admitted to the United States
under section 4305 of this title shall be provided in the same way and to
the same extent to a Cuban or Haitian entrant.
268
§ 13153. General assistance
(a) TYPES OF ASSISTANCE.—Under the direction of the President, any
agency may provide assistance (including materials, supplies, equipment,
work, services, or facilities) for the processing, care, security, transportation,
and initial reception and placement in the United States of a Cuban or Hai-
tian entrant on terms the President prescribes. The President may direct
the head of one agency to detail personnel (on a reimbursable or
nonreimbursable basis) for temporary duty with another agency that the
President has directed to supervise or manage assistance under this section.
(b) REIMBURSEMENT.—Amounts to carry out this section—
(1) shall be used to reimburse State governments and political sub-
divisions for expenses incurred in providing assistance under subsection
(a) of this section; and
(2) may be used to reimburse an agency providing assistance under
subsection (a) of this section.
(c) APPLICATION
OF
NATIONAL
ENVIRONMENTAL
POLICY
ACT
OF
1969.—The carrying out of a duty or power under this section is not a
major action of the United States Government significantly affecting the
quality of the human environment under the National Environmental Policy
Act of 1969 (42 U.S.C. 4321 et seq.).
(d) AVAILABILITY OF APPROPRIATIONS.—Amounts—
(1) appropriated under section 13122 of this title are available to
carry out this subchapter; and
(2) available to carry out this subchapter remain available until ex-
pended.
CHAPTER 133—INTERNATIONAL PARTICIPATION AND
EMERGENCY ASSISTANCE
Sec.
13301.
Participation in International Organization for Migration.
13302.
Contributions to international organizations.
13303.
Assistance to further foreign policy interests.
13304.
Assistance for unexpected urgent needs.
13305.
Allocation, transfer, availability, and accounting of amounts.
13306.
Audits.
13307.
Administrative.
§ 13301. Participation in International Organization for Mi-
gration
The President may continue United States membership in the Inter-
national Organization for Migration. To assist in the movement of refugees
and migrants and to enhance the economic progress of the developing coun-
tries by providing for a coordinated supply of a selected labor force,
amounts necessary to pay for the United States Government’s contribution
to the Organization and necessary pay and expenses incident to the Govern-
ment’s participation in the Organization may be appropriated.
269
§ 13302. Contributions to international organizations
The President may make contributions to—
(1) the activities of the United Nations High Commissioner for Refu-
gees for assistance to or for refugees and other persons assisted by the
Commissioner;
(2) the International Organization for Migration;
(3) the International Committee of the Red Cross for assistance to
or for refugees; and
(4) other international organizations for assistance to or for refu-
gees.
§ 13303. Assistance to further foreign policy interests
The President may provide assistance to or for refugees outside the Unit-
ed States designated by the President when the President decides that the
assistance will contribute to the foreign policy interests of the United
States. The President shall designate the refugees by class, group, countries
of origin, or areas of residence.
§ 13304. Assistance for unexpected urgent needs
(a) GENERAL AUTHORITY.—The President may provide assistance to
meet unexpected urgent refugee and migration needs on terms the President
prescribes when the President decides the assistance is important to the in-
terests of the United States.
(b) UNITED STATES EMERGENCY REFUGEE AND MIGRATION ASSIST-
ANCE FUND.—There is a United States Emergency Refugee and Migration
Assistance Fund to carry out this section. Amounts necessary for the Fund
may be appropriated to the President. However, an amount may not be ap-
propriated that, when added to amounts previously appropriated and not ob-
ligated, would cause the total amount in the Fund to be more than
$50,000,000. Amounts appropriated remain available until expended.
(c) JUSTIFICATION OF APPROPRIATIONS.—When the President requests
an appropriation under this section, the President shall justify the request
to the Committee on Foreign Relations of the Senate, the Speaker of the
House of Representatives, and the Committees on Appropriations of the
Senate and House of Representatives.
§ 13305. Allocation, transfer, availability, and accounting of
amounts
(a) ALLOCATION AND TRANSFER.—The President may allocate or trans-
fer to an agency an amount available to carry out this chapter. The amount
is available for obligation and expenditure for the purpose for which the
amount originally was made available under this chapter or under authority
governing the activities of the agency to which the amount was allocated
270
or transferred. An amount allocated or transferred may be carried in a sep-
arate appropriation account of the Treasury.
(b) PURPOSES FOR WHICH AMOUNTS ARE AVAILABLE.—(1) An amount
made available under this chapter may be used for—
(A) pay, allowances, and travel of personnel, including members of
the Foreign Service whose services are used primarily in carrying out
this chapter, without regard to another law, that may be necessary to
carry out this chapter;
(B) printing and binding, expenditure outside the United States for
supplies and services, and administrative and operating purposes except
pay, without regard to a law or regulation governing the obligation and
expenditure of amounts of the United States Government, that may be
necessary to carry out this chapter;
(C) employment and assignment of members of the Foreign Service
serving under limited appointments when carrying out this chapter;
(D) the exchange of amounts without regard to loss by exchanges;
(E) making contracts for personal services outside the United States;
(F) expenses authorized by the Foreign Service Act of 1980 (22
U.S.C. 3901 et seq.) not otherwise provided for;
(G) expenses authorized by the State Department Basic Authorities
Act of 1956 (22 U.S.C. 2662, 2669 et seq.); and
(H) other expenses the President decides are necessary to carry out
this chapter.
(2) An individual employed by contract with amounts made available
under paragraph (1)(E) of this subsection is not an employee of the Govern-
ment under any law carried out by the Director of the Office of Personnel
Management. However, the Secretary of State may apply to that individ-
ual—
(A) section 2(f) of the State Department Basic Authorities Act of
1956 (22 U.S.C. 2669(f)); and
(B) any other law carried out by the Secretary as that law is related
to employment of individuals by contract to perform personal services
outside the United States.
§ 13306. Audits
(a) PROGRAM AUDITS.—Amounts may be made available under this chap-
ter or another law to the United Nations High Commissioner for Refugees
only if—
(1) an annual program audit will be conducted to determine the use
of those amounts, including the use by implementing partners; and
(2) the audit will be made available through the Secretary of State
for inspection by the Comptroller General.
271
(b) INSPECTIONS
AND REPORTS
BY COMPTROLLER GENERAL.—The
Comptroller General shall inspect each audit and submit to Congress a re-
port on the inspection.
§ 13307. Administrative
(a) AUTHORITY OF THE PRESIDENT.—To carry out this chapter, the
President may—
(1) make loans, advances, and grants to, and agreements with, a
person, government or government agency in or outside the United
States, and international and intergovernmental organizations;
(2) accept and use money, property, and services made available to
carry out this chapter; and
(3) provide assistance and make contributions, notwithstanding an-
other provision of law that restricts assistance to foreign countries.
(b) WAIVER.—If the President decides that it carries out this chapter, the
President may waive a provision of law on making, carrying out, and chang-
ing contracts and on United States Government expenditures.
(c) DELEGATION OF DUTIES AND POWERS.—If the President delegates
to an officer under section 301 of title 3 a duty or power of the President
under this chapter, the President also may authorize the officer to
redelegate the duty or power to a subordinate officer or employee of the offi-
cer. However, the President may not authorize the redelegation of the waiv-
er authority under subsection (b) of this section.
(d) INFORMING CONGRESSIONAL COMMITTEES.—The President shall
keep appropriate committees of Congress currently informed on the use of
expenditures and the exercise of duties and powers under this chapter.
CHAPTER 135—IMMIGRANT EDUCATION ASSISTANCE
Sec.
13501.
Definitions and application.
13502.
Supplementary educational service.
13503.
Applications.
13504.
State entitlements.
13505.
Providing assistance to nonpublic schools when local agency does not.
13506.
State administrative costs.
13507.
Withholding payments.
13508.
Reports.
13509.
Authorization and allocation of appropriations.
§ 13501. Definitions and application
(a) DEFINITIONS.—In this chapter—
(1) the definitions in section 1471 of the Elementary and Secondary
Education Act of 1965 (20 U.S.C. 2891) apply, except ‘‘local edu-
cational agency’’ and ‘‘Secretary’’.
(2) ‘‘elementary or secondary nonpublic school’’ means a school—
(A) complying with the compulsory attendance laws of the State
in which it is located; and
272
(B) exempt from taxation under section 501(c)(3) of the Inter-
nal Revenue Code of 1986 (26 U.S.C. 501(c)(3)).
(3) ‘‘immigrant children’’ means children born outside any State who
have been attending school in at least one State for less than 3 com-
plete academic years.
(4) ‘‘local educational agency’’ has the same meaning given that
term in section 1471 of the Elementary and Secondary Education Act
of 1965 (20 U.S.C. 2891), except that it includes only an agency for
which the number of immigrant children enrolled in elementary and
secondary public schools under its jurisdiction and in elementary and
secondary nonpublic schools in the district it serves, during the fiscal
year for which a grant is to be made under this chapter, is at least
equal to the lesser of—
(A) 500; or
(B) 3 percent of the total number of students enrolled in those
public or nonpublic schools during that fiscal year.
(b) APPLICATION.—Sections 8002–8005 of the Elementary and Second-
ary Education Act of 1965 (20 U.S.C. 3382–3384, 3386) apply to this
chapter.
§ 13502. Supplementary educational service
(a) GENERAL AUTHORITY.—The Secretary of Education shall make a
grant, as provided by this chapter, to each State educational agency for the
fiscal year ending September 30, 19l, for supplementary educational serv-
ices for immigrant children enrolled in—
(1) elementary and secondary public schools under the jurisdiction
of the local educational agencies of the State; and
(2) elementary and secondary nonpublic schools in the districts
served by those agencies.
(b) SERVICES INCLUDED.—The supplementary services referred to in
subsection (a) of this section include—
(1) services necessary to enable the immigrant children to perform
satisfactorily, including—
(A) instruction in English;
(B) other bilingual educational services; and
(C) special materials and supplies;
(2) additional basic instructional services directly attributable to the
presence of immigrant children in the school districts, including—
(A) additional classroom supplies;
(B) overhead;
(C) construction;
(D) acquiring or renting space; and
273
(E) transportation; and
(3) essential inservice training of personnel who will provide the in-
structional services described by clauses (1) and (2) of this subsection.
(c) GRANT USE.—The State educational agency may use the grant only
as provided in its application as approved under section 13503(b) of this
title.
§ 13503. Applications
(a) REQUIREMENTS.—To receive a grant under this chapter, a State edu-
cational agency must submit an application to the Secretary of Education
at the time, in the way, and containing or accompanied by information the
Secretary requires. In the application, the State educational agency must
agree—
(1) to administer, or supervise the administration of, the educational
programs, services, and activities paid for under this chapter;
(2) to ensure that payments under the grant will be used as provided
by section 13502 of this title;
(3) to ensure that those payments will be allocated among the local
educational agencies in the State so that each agency receives an
amount—
(A) based on the number of immigrant children counted for that
agency under section 13504(a)(1) of this title; and
(B) reduced by an amount under section 13504(a)(2) of this
title attributable to that agency;
(4) to ensure that it will not disapprove finally any part of a local
educational agency’s application for an amount under this chapter
without giving the local educational agency reasonable notice and op-
portunity for a proceeding;
(5) to make reports the Secretary requires to carry out this chapter;
and
(6) to ensure that—
(A) to the extent consistent with the number of immigrant chil-
dren enrolled in elementary and secondary nonpublic schools in the
district served by a local educational agency, the local educational
agency, after consulting with the appropriate officials of the
schools, will provide secular, neutral, and nonideological materials,
equipment, and services necessary to educate those children;
(B) a public agency will—
(i) administer the amounts provided under this section for
the materials, equipment, and services referred to in
subclause (A) of this clause; and
274
(ii) own and administer property that is repaired, remod-
eled, or constructed with those amounts;
(C) those amounts will not be commingled with State or local
money; and
(D) a public agency will provide to each of those elementary or
secondary nonpublic schools the services referred to in subclause
(A) of this clause through—
(i) officers and employees under the control of the agency;
or
(ii) a contract with a person or agency that is under the
control of the public agency and, when providing the services,
is independent of the school and of any religious organization.
(b) APPROVAL.—The Secretary shall approve an application meeting the
requirements of subsection (a) of this section. The Secretary may not dis-
approve finally an application without giving the applicant reasonable notice
and opportunity for a hearing on the record.
§ 13504. State entitlements
(a) ALLOCATIONS.—(1) The Secretary of Education shall allocate the
amount appropriated to carry out this chapter for a fiscal year among the
State educational agencies. Except as provided by this section, the amount
of the grant to which an agency is entitled under this chapter for a fiscal
year is equal to the product of—
(A) the number of immigrant children enrolled during the fiscal year
in elementary and secondary public schools under the jurisdiction of the
local educational agencies of the State and in elementary and secondary
nonpublic schools in the districts served by the local educational agen-
cies of the State; multiplied by
(B) $500.
(2)(A) If amounts are available for a fiscal year under other laws of the
United States for expenditure in a State for the same purpose for which
an amount is made available under this chapter, the amount of the grant
under paragraph (1) of this subsection for that fiscal year is reduced by
those amounts. However, the reduction shall be made only to the extent the
amounts are available under the other laws—
(i) for that purpose specifically because the individuals served by the
amounts have refugee, parolee, immigrant, or asylum status; and
(ii) to assist individuals eligible for services under this chapter.
(B) Subparagraph (A) of this paragraph does not apply to the extent a
reduction is made under a comparable provision of another law of the Unit-
ed States in the amount available under that law for a fiscal year for ex-
275
penditure in the State based on the amount assumed to be available under
this chapter.
(b) DETERMINING NUMBER OF IMMIGRANT CHILDREN.—(1) The Sec-
retary shall determine the number of immigrant children for a State edu-
cational agency under this section based on information or estimates pro-
vided by the agency under criteria prescribed by the Secretary. However,
after notice and opportunity for a proceeding, the Secretary may disregard
information or estimates that the Secretary decides are clearly erroneous.
(2) A determination under this subsection based on an overestimate or
underestimate may not deprive a State educational agency of any part of
the amount the agency would be entitled to receive under this chapter if
the determination were based on accurate information.
(c) REALLOCATION OF UNUSED AMOUNTS.—When the Secretary deter-
mines that a part of a payment made to a State educational agency under
this chapter for a fiscal year will not be used by the agency to carry out
the purpose for which the payment was made, the Secretary shall make that
part available to another State educational agency to the extent the Sec-
retary decides the other agency can use the additional amount to carry out
the purpose. An amount made available under this subsection to a State
educational agency from an appropriation for a fiscal year is deemed in this
chapter to be a part of the grant (as determined under subsection (a) of
this section) to that agency for that fiscal year, and remains available until
the end of the next fiscal year.
§ 13505. Providing assistance to nonpublic schools when
local agency does not
(a) GENERAL AUTHORITY.—If a local educational agency is prohibited by
law from providing materials, equipment, and services for children enrolled
in elementary and secondary nonpublic schools as required by section
13503(a)(6) of this title, or if the Secretary of Education decides that a
local educational agency has failed substantially or will not provide for the
participation on an equitable basis of children enrolled in those schools, the
Secretary—
(1) may waive the requirements of section 13503(a)(6) of this title;
and
(2) subject to the other requirements of this chapter, shall arrange
for materials, equipment, and services to be provided for those children.
(b) WAIVER REQUIREMENTS.—A waiver under this section is subject to
consultation, withholding, notice, and judicial review requirements as pro-
vided by chapter 1 of title I of the Elementary and Secondary Education
Act of 1965 (20 U.S.C. 2701 et seq.).
276
§ 13506. State administrative costs
The Secretary of Education may pay each State educational agency an
amount equal to the amount the agency expends in carrying out its duties
and powers properly and efficiently under this chapter. However, the total
payments for a period may not be more than 1.5 percent of the amount
the agency is entitled to receive for the period under this chapter.
§ 13507. Withholding payments
(a) AUTHORITY TO WITHHOLD.—When the Secretary of Education de-
cides that a State educational agency receiving payments under this chapter,
or a local educational agency receiving payments from the State educational
agency, is not complying with a requirement of this chapter, the Secretary,
until satisfied that there is no longer a failure to comply, shall—
(1) stop making payments to the State educational agency under this
chapter; or
(2) prohibit the State educational agency from making payments
under this chapter to the local educational agency that is causing, or
involved in, the failure.
(b) NOTICE AND OPPORTUNITY FOR PROCEEDING.—The Secretary—
(1) may act under subsection (a) of this section only after giving the
State educational agency reasonable notice and opportunity for a pro-
ceeding; and
(2) shall notify the State educational agency of the action the Sec-
retary is taking under subsection (a) of this section.
§ 13508. Reports
(a) REPORTS
BY STATE EDUCATIONAL AGENCIES.—Each State edu-
cational agency receiving amounts under this chapter shall submit a report
each year to the Secretary of Education on the expenditure of amounts by
local educational agencies of the States under this chapter. Each local edu-
cational agency of a State receiving amounts under this chapter shall submit
to the State educational agency information necessary for the report.
(b) REPORTS BY THE SECRETARY.—The Secretary shall submit a report
twice a year to the appropriate committees of Congress about programs
under this chapter.
§ 13509. Authorization and allocation of appropriations
(a) AUTHORIZATION OF APPROPRIATIONS.—Necessary amounts may be
appropriated for the fiscal year ending September 30, 19l, to make grants
under this chapter and to pay for administrative costs under section 13506
of this title.
(b) ALLOCATIONS OF APPROPRIATIONS.—(1) If the amounts appropriated
for a fiscal year to make grants under this chapter are not enough to pay
the total amount of the grants to which State educational agencies are enti-
277
tled under this chapter for the fiscal year, the allocation to each agency
shall be ratably reduced so that the total of the allocations is not more than
the amounts appropriated.
(2) Allocations reduced under paragraph (1) of this subsection shall be
increased on the same basis that they were reduced if amounts later become
available to make grants under this chapter for the period.
CHAPTER 137—STATE LEGALIZATION IMPACT-
ASSISTANCE GRANTS
Sec.
13701.
Definitions.
13702.
Allotments and allotment uses.
13703.
Applications and statements about allotments.
13704.
Determining and paying allotments.
13705.
Nondiscrimination.
13706.
Consultation with State and local officials.
13707.
Reports and audits.
13708.
Criminal penalties.
13709.
Appropriations.
§ 13701. Definitions
In this chapter—
(1) ‘‘eligible legalized alien’’ means an alien having the status of an
alien lawfully admitted for temporary residence under chapter 93 of
this title, but only until the end of the 5-year period beginning on the
date the alien first acquired the status.
(2) ‘‘program of public assistance’’ means a program in a State or
political subdivision of a State that—
(A) provides for cash, medical, or other assistance (as defined
by the Secretary of Health and Human Services) designed to meet
the basic subsistence or health needs of individuals;
(B) is available generally to needy individuals residing in the
State or political subdivision; and
(C) receives financing from the State government or political
subdivision.
(3) ‘‘program of public health assistance’’ means a program in a
State or political subdivision that—
(A) provides public health services, including immunizations for
immunizable diseases, testing and treatment for tuberculosis and
sexually-transmitted diseases, and family planning services;
(B) is available generally to needy individuals residing in the
State or political subdivision; and
(C) receives financing from the State government or political
subdivision.
278
§ 13702. Allotments and allotment uses
(a) GENERAL AUTHORITY.—A State may be paid an allotment as pro-
vided under this chapter. The State may use amounts allotted to the State
only—
(1) to reimburse the costs of programs of public assistance provided
for eligible legalized aliens not disqualified under section 9310 of this
title when the assistance is provided;
(2) to reimburse the costs of programs of public health assistance
provided to any alien who is, or who applied before May 5, 1988, to
become, an eligible legalized alien;
(3) to pay a State educational agency for assisting a local edu-
cational agency in providing educational services for eligible legalized
aliens;
(4) to pay for public education and outreach (including providing in-
formation to individual applicants, but not including client counseling
or another service that would assume responsibility for an alien’s appli-
cation for change of status) to inform aliens lawfully admitted for tem-
porary residence about—
(A) the requirements of chapter 93 of this title related to a
change of status;
(B) sources of assistance for aliens obtaining a change of status,
including educational, informational, and referral services, and in-
formation about the rights and responsibilities of those aliens and
aliens lawfully admitted for permanent residence;
(C) the identification of health, employment, and social services;
and
(D) the importance of identifying oneself to service providers as
an alien lawfully admitted for temporary residence; and
(5) to pay for education and outreach efforts by State agencies about
unfair discrimination in employment practices because of national ori-
gin or citizenship status, except that State agencies may initiate these
efforts only after consulting with the Special Counsel for Immigration-
Related Unfair Employment Practices to ensure, to the maximum ex-
tent possible, a uniform program.
(b) DISCRETION TO DISTRIBUTE AMONG USES.—Except as provided by
subsection (c) of this section, a State may decide on the distribution of
amounts among the uses described by subsection (a) of this section.
(c) REQUIRED USE PERCENTAGES.—(1) Except as provided by para-
graphs (2) and (3) of this subsection, of the amounts allotted to a State
under this chapter in a fiscal year—
279
(A) 10 percent shall be used by the State for reimbursement under
subsection (a)(1) of this section;
(B) 10 percent shall be used by the State for reimbursement under
subsection (a)(2) of this section; and
(C) 10 percent shall be used by the State for payments under sub-
section (a)(3) of this section.
(2) Subject to paragraph (3) of this subsection, a State not requiring all
of the 10 percent of an allotted amount for a use described by subsection
(a)(1), (2), or (3) of this section for a fiscal year shall distribute the unused
amount equally between the other 2 uses described by subsection (a)(1)–(3).
(3) Amounts provided under this chapter may not be used to provide re-
imbursement for more than 100 percent of the costs described by subsection
(a)(1) or (2) of this section.
(4) Of the amounts allotted to a State under this chapter in a fiscal year,
the State may not use more than the greater of—
(A) one percent or $100,000, for payments under subsection (a)(4)
of this section; and
(B) one percent or $100,000, for payments under subsection (a)(5)
of this section.
(d) LIMITATION ON PAYMENTS.—A payment under this chapter—
(1) may be made to a State only for costs for assistance of a pro-
gram of public assistance or public health assistance to the extent the
assistance otherwise generally is available under the program to citizens
residing in the State; and
(2) may not be made for costs to the extent the costs otherwise are
reimbursed or paid for under another United States Government pro-
gram.
(e) APPLICATION OF CHAPTER 135.—Chapter 135 of this title applies to
a payment under subsection (a)(3) of this section except that—
(1) a reference in chapter 135 to ‘‘immigrant children’’ is deemed
to be a reference to ‘‘eligible legalized aliens’’ (including aliens over 16
years of age) during the 5-year period beginning with the first month
in which such an alien acquires the status of an alien lawfully admitted
for temporary residence under this title;
(2) in determining a payment for an eligible legalized alien over 16
years of age, the exception in section 13501(4) of this title does not
apply;
(3) the State educational agency may provide educational services to
adult eligible legalized aliens through local educational agencies and
other public agencies and private nonprofit organizations, including
community-based organizations of demonstrated effectiveness; and
280
(4) the services may include instruction in English and other pro-
grams designed to enable aliens to acquire the citizenship skills de-
scribed by section 20301(a)(7) and (8) of this title.
§ 13703. Applications and statements about allotments
(a) GENERAL REQUIREMENTS.—A State is eligible for payment of an
amount allotted under section 13704 of this title only if the State—
(1) has filed with the Secretary of Health and Human Services an
application containing information, and criteria for and administrative
methods of distributing amounts received under this chapter, the Sec-
retary decides is necessary to carry out this chapter;
(2) has its application approved by the Secretary; and
(3) submits to the Secretary a statement certifying that—
(A) amounts allotted to the State under this chapter will be
used only as provided under section 13702(a) of this title;
(B) the State will decide on, and provide a fair method for, allo-
cating amounts among State and local authorities consistent with
subsection (b) of this section and section 13702(c) of this title;
and
(C) fiscal control and accounting procedures will be established
that are adequate to meet the requirements of subsection (b) of
this section and sections 13702(d) and 13707 of this title.
(b) APPLICATION INFORMATION REQUIREMENTS.—The application of
each State under this section for each fiscal year must include detailed in-
formation on—
(1) the number of eligible legalized aliens residing in the State; and
(2) the costs (excluding costs otherwise paid by the United States
Government) that the State and each political subdivision is likely to
incur for the purposes described by section 13702(a) of this title.
§ 13704. Determining and paying allotments
(a) PRESCRIBING ALLOTMENT FORMULA.—From amounts appropriated
under section 13709(a) of this title for a fiscal year (less the amount re-
served for United States Government administrative costs), the Secretary of
Health and Human Services shall allot to each State with an application
approved under section 13703(a) of this title an amount determined by a
formula, prescribed by the Secretary by regulation, that considers—
(1) the number of eligible legalized aliens residing in the State in
that fiscal year;
(2) the ratio of eligible legalized aliens in the State to—
(A) the total number of residents of the State; and
(B) the total number of eligible legalized aliens in all States in
that fiscal year;
281
(3) the expenditures the State is likely to incur in that fiscal year
in providing assistance for eligible legalized aliens for which reimburse-
ment or payment may be made under this chapter;
(4) the ratio of expenditures in the State to expenditures in all
States;
(5) changes for the difference in prior years between the State’s ac-
tual expenditures incurred in providing assistance for eligible legalized
aliens for which reimbursement or payment may be made under this
chapter and the allotment provided the State under this chapter for
those years; and
(6) other factors the Secretary considers appropriate to provide for
an equitable distribution of the amounts.
(b) ESTIMATING THE NUMBER OF ELIGIBLE LEGALIZED ALIENS.—In
determining the number of eligible legalized aliens under subsection (a) of
this section, the Secretary may estimate the number of those aliens on the
basis of information the Secretary considers appropriate.
(c) ADDITIONAL ALLOTMENTS OF UNALLOTTED AMOUNTS.—If all States
have not qualified for allotments under this chapter for the fiscal year, or
if at least one State has indicated in its description of activities that it does
not intend to use, in that fiscal year or in any subsequent fiscal year begin-
ning before October 1, 1994, the complete allotment, amounts appropriated
under this chapter for a fiscal year and not allotted to those States shall
be allotted among the remaining States in proportion to the amount other-
wise allotted to the remaining States for the fiscal year.
(d) MAKING PAYMENTS.—For each fiscal year, the Secretary shall make
payments, as provided by section 6503 of title 31, to each State from its
allotment under this section. An amount paid to a State for a fiscal year
and remaining unobligated at the end of the year remains available to the
State in subsequent fiscal years for the purposes for which it was made.
However, the amount is not available after September 30, 1994.
(e) REALLOTMENT OF UNEXPENDED AMOUNTS.—The Secretary shall
reallot amounts not expended by the States before December 31, 1994, to
States that expended their complete allotment. Reallotment shall be based
on each State’s proportionate share of the total unreimbursed legalized alien
costs in all States. Reallotted amounts are not available after June 30,
1995.
§ 13705. Nondiscrimination
(a) PROHIBITIONS.—(1) A program or activity receiving financial assist-
ance made available under this chapter is a program or activity receiving
financial assistance from the United States Government in applying—
(A) the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.);
282
(B) section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794);
(C) title IX of the Education Amendments of 1972 (20 U.S.C. 1681
et seq.); or
(D) title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et
seq.).
(2) A person may not be excluded, because of sex or religion, from par-
ticipating in, denied a benefit of, or discriminated against under, a program
or activity receiving financial assistance made available under this chapter.
(b) VIOLATION NOTICES AND COMPLIANCE REQUESTS.—When the Sec-
retary of Health and Human Services finds that a State or political subdivi-
sion receiving a payment from an allotment under this chapter is not com-
plying with a law referred to in subsection (a)(1) of this section, with sub-
section (a)(2) of this section, or with an applicable regulation (including a
regulation prescribed to carry out subsection (a)(2)), the Secretary shall no-
tify the chief executive officer of the State and shall request the chief execu-
tive officer to secure compliance by the State or political subdivision.
(c) ADMINISTRATIVE ACTIONS.—If within a reasonable time (but not
more than 60 days after providing notice under subsection (b) of this sec-
tion) the chief executive officer does not secure compliance, the Secretary
may—
(1) refer the matter to the Attorney General with a recommendation
that a civil action be brought;
(2) act under the Age Discrimination Act of 1975 (42 U.S.C. 6101
et seq.), section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794),
or title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.),
as the case may be; or
(3) take other action provided by law.
(d) CIVIL ACTIONS.—The Attorney General may bring a civil action in
an appropriate district court of the United States for appropriate relief
when—
(1) a matter is referred to the Attorney General under subsection
(c)(1) of this section; or
(2) the Attorney General believes the program or activity receiving
financial assistance made available under this chapter is engaged in a
pattern or practice in violation of—
(A) a law referred to in subsection (a)(1) of this section; or
(B) subsection (a)(2) of this section.
§ 13706. Consultation with State and local officials
In establishing regulations and guidelines to carry out this chapter, the
Secretary of Health and Human Services shall consult with representatives
of State governments and political subdivisions.
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§ 13707. Reports and audits
(a) STATE ANNUAL REPORTS.—Each State shall submit to the Secretary
of Health and Human Services an annual report on its activities under this
chapter. To evaluate properly and compare the performance of different
States provided assistance under this chapter and to ensure the proper ex-
penditure of amounts under this chapter, the report shall be in the form
and contain information the Secretary decides (after consulting with the
States and the Comptroller General) is necessary—
(1) to provide an accurate description of the activities;
(2) to provide a complete record of the purposes for which amounts
were expended and of the recipients of the amounts; and
(3) to establish the extent to which amounts were expended consist-
ent with this chapter.
(b) ANNUAL REPORTS BY SECRETARY.—The Secretary—
(1) shall report annually to Congress on activities for which amounts
are provided under this chapter; and
(2) shall submit a copy of the report to each State.
(c) AUDITS.—(1) Audits shall be conducted as provided under chapter 75
of title 31.
(2) Amounts allotted to a State but not expended consistent with this
chapter—
(A) shall be repaid by the State to the United States Government;
or
(B) may be offset by the Secretary against any other amount to
which the State is or may become entitled under this chapter.
(3) After notice and an opportunity for a proceeding, the Secretary may
withhold payment of amounts to a State not using its allotment as provided
under this chapter. The Secretary may withhold the amounts until the Sec-
retary finds that the reason for withholding no longer exists and there is
reasonable assurance that it will not recur.
(d) RECORDS.—(1) To evaluate and review assistance provided under this
chapter, a record related to the assistance that is in the possession, custody,
or control of a State, a political subdivision of a State, or a grantee of a
State or political subdivision shall be made available to the Secretary and
the Comptroller General.
(2) A State, political subdivision, or grantee is not required to create or
prepare new records to comply with paragraph (1) of this subsection.
(e) AVAILABILITY OF REPORTS AND AUDITS.—(1) A State shall make
copies of each report and audit required under this section available for
public inspection within the State.
284
(2) On request, a copy of the annual report required by subsection (a)
of this section shall be provided to any interested public agency. Each agen-
cy may submit its views on the report to Congress.
§ 13708. Criminal penalties
A person shall be fined under title 18, imprisoned for not more than 5
years, or both, if the person—
(1) knowingly and willfully makes or causes to be made a false state-
ment or misrepresentation of a material fact related to providing assist-
ance or services for which payment may be made by a State from
amounts allotted to the State under this chapter; or
(2) knowing of the occurrence of an event affecting the initial or con-
tinued right to a payment, conceals or does not disclose the event with
an intent to receive payment fraudulently—
(A) in a greater amount than is due; or
(B) when no payment is authorized.
§ 13709. Appropriations
(a) ANNUAL APPROPRIATION.—For the fiscal year ending September 30,
1994, there is appropriated $812,000,000 to carry out this chapter for costs
incurred after September 30, 1989, including United States Government,
State government, and political subdivision administrative costs.
(b) CHANGES IN APPROPRIATED AMOUNTS.—(1) Except as provided by
paragraphs (2) and (3) of this subsection, the amount appropriated for a
fiscal year is decreased by the amount estimated to be expended by the Gov-
ernment in that year (as contained in the annual budget submitted by the
President to Congress for that year) for programs of financial assistance,
medical assistance, and assistance under the Food Stamp Act of 1977 (7
U.S.C. 2011 et seq.) for aliens eligible for assistance under section
9310(a)(1) of this title only because of section 9310(a)(3) and (b) of this
title.
(2) The amount estimated under paragraph (1) of this section shall ex-
clude an amount attributable to supplemental security benefits paid under
title XVI of the Social Security Act (42 U.S.C. 1381 et seq.) or medical
assistance provided under a State plan approved under title XIX of the So-
cial Security Act (42 U.S.C. 1396 et seq.) for—
(A) an alien who the Secretary of Health and Human Services de-
cides, based on an application filed before May 5, 1988, for benefits
under section 212 of the Act of July 9, 1973 (42 U.S.C. 1382 (note))
or title XVI, is—
(i) residing permanently in the United States under color of law
as provided by section 1614(a)(1)(B)(ii) of the Social Security Act
(42 U.S.C. 1382c(a)(1)(B)(ii)); and
285
(ii) eligible to receive the benefits under section 212 or title XVI
for April, 1988; and
(B) as long as the alien continues without interruption to be eligible
to receive the benefits under section 212 or title XVI.
(3) If expenditures by the Government (as described by paragraph (1) of
this subsection) for a fiscal year are more than, or less than, the amount
estimated to be expended for that year under paragraph (1) (considering
any change under this paragraph), the amount described by this section for
the next fiscal year shall be decreased or increased, respectively, by the
amount of the excess or deficit for the prior fiscal year.
CHAPTER 139—REIMBURSEMENT FOR COSTS OF
IMPRISONING CUBAN NATIONALS AND ILLEGAL ALIENS
Sec.
13901.
Payment of costs of imprisoning certain Cuban nationals.
13902.
Reimbursement of costs of imprisoning certain Cuban nationals and illegal aliens.
13903.
Limitation.
§ 13901. Payment of costs of imprisoning certain Cuban na-
tionals
(a) PAYMENTS TO STATES AND COUNTIES.—The Attorney General shall
pay a State or county for costs incurred by the State or county in imprison-
ing, during the fiscal year for which payment is made, a Cuban national
who—
(1) was paroled into the United States in 1980 by the Attorney Gen-
eral;
(2) after being paroled, violated a State or county law for which a
term of imprisonment was imposed; and
(3) at the time of the parole and violation, was not lawfully admitted
for permanent residence or not admitted under an immigrant or non-
immigrant visa issued under this title.
(b) APPLICATIONS FOR PAYMENTS.—For a State or county to be paid
under this section, the chief executive officer of the State or county shall
submit an application to the Attorney General, under regulations prescribed
by the Attorney General. The application shall contain—
(1) the number and names of Cuban nationals for whose imprison-
ment the State or county is entitled to be paid; and
(2) other information the Attorney General requires.
(c) REDUCTION
IF APPROPRIATIONS INSUFFICIENT.—For each fiscal
year, the Attorney General shall make payment under this section to States
and counties the Attorney General decides are eligible under this section.
However, if amounts appropriated for the fiscal year to carry out this sec-
tion are not sufficient to make all payments, each payment shall be ratably
reduced so that the total of the payments equals the amount appropriated.