368
Title VIII, Subtitle B
HR 2202 RH
over the area of intended employ-
ment; and
‘‘(iii) states each of the items
described in paragraph (2) and in-
cludes 
information 
identifying
the employer or association and
agricultural job opportunities in-
volved; and
‘‘(B) the employer is not disquali-
fied from employing H–2B aliens pur-
suant to subsection (g).
‘‘(2) CONTENTS OF LABOR CONDITION AT-
TESTATION.—Each labor condition attesta-
tion filed by or on behalf of, an employer
shall include the following:
‘‘(A) WAGE
RATE.—The employer
will pay H–2B aliens and all other
workers in the occupation not less
than the prevailing wage for similarly
employed workers in the area of em-
ployment, and not less than the appli-
cable Federal, State or local statutory
minimum wage.
‘‘(B) 
WORKING
CONDITIONS.—The
employment of H–2B aliens will not
369
Title VIII, Subtitle B
HR 2202 RH
adversely affect the working condi-
tions with respect to housing and
transportation of similarly employed
workers in the area of employment.
‘‘(C) LIMITATION ON EMPLOYMENT.—
An H–2B alien will not be employed
in any job opportunity which is not
temporary or seasonal, and will not
be employed by the employer in any
job opportunity for more than 10
months in any 12-consecutive-month
period.
‘‘(D) NO LABOR DISPUTE.—No H–2B
alien will be employed in any job op-
portunity which is vacant because its
former occupant is involved in a
strike, lockout or work stoppage in
the course of a labor dispute in the
occupation at the place of employ-
ment.
‘‘(E) NOTICE.—The employer, at
the time of filing the attestation, has
provided notice of the attestation to
workers employed in the occupation
370
Title VIII, Subtitle B
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in which H–2B aliens will be em-
ployed.
‘‘(F) JOB
ORDERS.—The employer
will file one or more job orders for
the occupation (or occupations) cov-
ered by the attestation with the quali-
fied State employment security agen-
cy no later than the day on which the
employer first employs any H–2B
aliens in the occupation.
‘‘(G) 
PREFERENCE
TO
DOMESTIC
WORKERS.—The employer will give
preference to able, willing and quali-
fied United States workers who apply
to the employer and are available at
the time and place needed, for the
first 25 days after the filing of the job
order in an occupation or until 5 days
before the date employment of work-
ers in the occupation begins, which-
ever occurs later.
‘‘(3) ESTABLISHMENT AS PILOT PROGRAM;
RESTRICTION OF ADMISSIONS TO PILOT PRO-
GRAM PERIOD.—
371
Title VIII, Subtitle B
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‘‘(A) IN
GENERAL.—The program
under this section is deemed to be a
pilot program and no alien may be
admitted or provided status as an H–
2B alien under this section except
during the pilot program period spec-
ified in subparagraph (B).
‘‘(B) PILOT PROGRAM PERIOD.—
‘‘(i) IN
GENERAL.—Subject to
clause (ii), the pilot program pe-
riod under this subparagraph is
the period (ending on October 1,
1999) during which the employ-
ment eligibility verification sys-
tem is in effect under section
274A(b)(7) (as amended by the Im-
migration in the National Interest
Act of 1995).
‘‘(ii) CONSIDERATION OF EXTEN-
SION.—If Congress extends such
verification 
system, 
Congress
shall also extend the pilot pro-
gram period under this subpara-
graph for the same period of time.
372
Title VIII, Subtitle B
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‘‘(C) ANNUAL REPORTS.—The Comp-
troller General shall submit to Con-
gress annual reports on the operation
of the pilot program under this sec-
tion during the pilot program period.
Such reports shall include an assess-
ment of the program and of the need
for foreign workers to perform tem-
porary agricultural employment in
the United States.
‘‘(4) 
LIMITATIONS
ON
NUMBER
OF
VISAS.—
‘‘(A) IN GENERAL.—In no case may
the number of aliens who are admit-
ted or provided status as an H–2B
alien in a fiscal year exceed the nu-
merical limitation specified under
subparagraph (B) for that fiscal year.
‘‘(B) NUMERICAL
LIMITATION.—The
numerical limitation specified in this
subparagraph for—
‘‘(i) the first fiscal year in
which this section is applied is
250,000; and
373
Title VIII, Subtitle B
HR 2202 RH
‘‘(ii) 
any 
subsequent 
fiscal
year is the numerical limitation
specified in this subparagraph for
the previous fiscal year decreased
by 25,000.
‘‘(b) FILING A LABOR CONDITION ATTESTA-
TION.—
‘‘(1) FILING
BY
EMPLOYERS—Any em-
ployer in the United States is eligible to
file a labor condition attestation.
‘‘(2) FILING BY ASSOCIATIONS ON BEHALF
OF
EMPLOYER
MEMBERS.—An agricultural
association may file a labor condition at-
testation as an agent on behalf of its
members. Such an attestation filed by an
agricultural association acting as an
agent for its members, when accepted,
shall apply to those employer members of
the association that the association cer-
tifies to the qualified State employment
security agency are members of the asso-
ciation and have agreed in writing to
comply with the requirements of this sec-
tion.
374
Title VIII, Subtitle B
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‘‘(3) PERIOD OF VALIDITY.—A labor con-
dition attestation is valid from the date
on which it is accepted by the qualified
State employment security agency for the
period of time requested by the employer,
but not to exceed 12 months.
‘‘(4) WHERE
TO
FILE.—A labor condi-
tion attestation shall be filed with such
agency having jurisdiction over the area
of intended employment of the workers
covered by the attestation. If an em-
ployer, or the members of an association
of employers, will be employing workers
in an area or areas covered by more than
one such agency, the attestation shall be
filed with each such agency having juris-
diction over an area where the workers
will be employed.
‘‘(5) DEADLINE
FOR
FILING.—An em-
ployer may file a labor condition attesta-
tion at any time up to 12 months prior to
the date of the employer’s anticipated
need for workers in the occupation (or
occupations) covered by the attestation.
375
Title VIII, Subtitle B
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‘‘(6) FILING
FOR
MULTIPLE
OCCUPA-
TIONS.—A labor condition attestation may
be filed for one or more occupations and
cover one or more periods of employ-
ment.
‘‘(7) 
MAINTAINING
REQUIRED
DOCU-
MENTATION.—
‘‘(A) BY
EMPLOYERS.—Each em-
ployer covered by an accepted labor
condition attestation must maintain a
file of the documentation required in
subsection (c) for each occupation in-
cluded in an accepted attestation cov-
ering the employer. The documenta-
tion shall be retained for a period of
one year following the expiration of
an accepted attestation. The em-
ployer shall make the documentation
available to representatives of the
Secretary during normal business
hours.
‘‘(B) BY ASSOCIATIONS.—In comply-
ing with subparagraph (A), docu-
mentation maintained by an associa-
tion filing a labor condition attesta-
376
Title VIII, Subtitle B
HR 2202 RH
tion on behalf of an employer shall be
deemed to be maintained by the em-
ployer.
‘‘(8) WITHDRAWAL.—
‘‘(A) COMPLIANCE
WITH
ATTESTA-
TION OBLIGATIONS.—An employer cov-
ered by an accepted labor condition
attestation for an occupation shall
comply with the terms and conditions
of the attestation from the date the
attestation is accepted and continu-
ing throughout the period any per-
sons are employed in an occupation
covered by such an accepted attesta-
tion, whether or not H–2B aliens are
employed in the occupation, unless
the attestation is withdrawn.
‘‘(B) 
TERMINATION
OF
OBLIGA-
TIONS.—An employer may withdraw a
labor condition attestation in total, or
with respect to a particular occupa-
tion covered by the attestation. An as-
sociation may withdraw such an at-
testation with respect to one or more
of its members. To withdraw an attes-
377
Title VIII, Subtitle B
HR 2202 RH
tation the employer or association
must notify in writing the qualified
State employment security agency of-
fice with which the attestation was
filed of the withdrawal of the attesta-
tion. An employer who withdraws an
attestation, or on whose behalf an at-
testation is withdrawn by an associa-
tion, is relieved of the obligations un-
dertaken in the attestation with re-
spect to the occupation (or occupa-
tions) with respect to which the attes-
tation was withdrawn, upon acknowl-
edgement by the appropriate quali-
fied State employment security agen-
cy of receipt of the withdrawal no-
tice. An attestation may not be with-
drawn with respect to any occupation
while any H–2B aliens covered by
that attestation are employed in the
occupation.
‘‘(C) OBLIGATIONS
UNDER
OTHER
STATUTES.—Any obligation incurred
by the employer under any other law
or regulation as a result of recruit-
378
Title VIII, Subtitle B
HR 2202 RH
ment of United States workers under
an offer of terms and conditions of
employment required by the H–2B
program is unaffected by withdrawal
of a labor condition attestation.
‘‘(c) EMPLOYER RESPONSIBILITIES AND RE-
QUIREMENTS
FOR
EMPLOYING
H–2B
NONIMMIGRANTS.—
‘‘(1) REQUIREMENT TO PAY THE PREVAIL-
ING WAGE.—
‘‘(A) EFFECT OF THE ATTESTATION.—
Employers shall pay each worker in
an occupation covered by an accept-
ed labor condition attestation at least
the prevailing wage in the occupation
in the area of intended employment.
The preceding sentence does not re-
quire employers to pay all workers in
the occupation the same wage. The
employer may, in the sole discretion
of the employer, maintain pay dif-
ferentials based on experience, ten-
ure with the employer, skill, or any
other work-related factor, if the dif-
ferential is not based on a criterion
380
Title VIII, Subtitle B
HR 2202 RH
‘‘(ii) are being paid at least
the prevailing wage so deter-
mined.
‘‘(C) RELIANCE ON WAGE SURVEY.—
In lieu of the procedures of subpara-
graph (B), an employer may rely on
other information, such as an em-
ployer generated prevailing wage sur-
vey and determination, which meets
criteria specified by the Secretary by
regulation. In the event of a com-
plaint that the employer has failed to
pay the required wage, the Secretary
shall investigate to determine if the
information upon which the employer
relied complied with the criteria for
prevailing wage determinations.
‘‘(D) ALTERNATE METHODS OF PAY-
MENT PERMITTED.—
‘‘(i) IN GENERAL.—A prevailing
wage may be expressed as an
hourly wage, a piece rate, a task
rate (described in clause (ii)), or
other incentive pay system, in-
cluding a group rate (described in
381
Title VIII, Subtitle B
HR 2202 RH
clause (iii)). The requirement to
pay at least the prevailing wage
in the occupation and area of in-
tended employment does not re-
quire an employer to pay by the
method of pay in which the pre-
vailing rate is expressed. How-
ever, if the employer adopts a
method of pay other than the pre-
vailing rate, the burden of proof
is on the employer to demonstrate
that the employer’s method of pay
is designed to produce earnings
equivalent to the earnings that
would result from payment of the
prevailing rate.
‘‘(ii) TASK RATE.—For purposes
of this subparagraph, a task rate
is an incentive payment based on
a unit of work performed such
that the incentive rate varies
with the level of effort required to
perform individual units of work.
‘‘(iii) GROUP
RATE.—For pur-
poses of this subparagraph, a
382
Title VIII, Subtitle B
HR 2202 RH
group rate is an incentive pay-
ment system in which the pay-
ment is shared among a group of
workers working together to per-
form the task.
‘‘(E) REQUIRED
DOCUMENTATION.—
The employer or association shall
document compliance with this para-
graph by retaining on file the em-
ployer or association’s request for a
determination by a qualified State
employment security agency and the
prevailing wage determination re-
ceived from such agency or other in-
formation upon which the employer
or association relied to assure compli-
ance with the prevailing wage re-
quirement.
‘‘(2) REQUIREMENT TO PROVIDE HOUSING
AND TRANSPORTATION.—
‘‘(A) EFFECT OF THE ATTESTATION.—
The employment of H–2B aliens shall
not adversely affect the working con-
ditions of United States workers simi-
larly employed in the area of in-
383
Title VIII, Subtitle B
HR 2202 RH
tended employment. The employer’s
obligation not to adversely affect
working conditions shall continue for
the duration of the period of employ-
ment by the employer of any H–2B
aliens in the occupation and area of
intended employment. An employer
will be deemed to be in compliance
with this attestation if the employer
offers at least the benefits required
by subparagraphs (B) through (D).
The previous sentence does not re-
quire an employer to offer more than
such benefits.
‘‘(B) HOUSING REQUIRED.—
‘‘(i) HOUSING OFFER.—The em-
ployer must offer to H–2B aliens
and United States workers re-
cruited from beyond normal re-
cruiting distance housing, or a
housing allowance, if it is prevail-
ing practice in the occupation
and area of intended employment
to offer housing or a housing al-
lowance to workers who are re-
384
Title VIII, Subtitle B
HR 2202 RH
cruited from beyond normal com-
muting distance.
‘‘(ii) HOUSING
STANDARDS.—If
the employer offers housing to
such workers, the housing shall
meet (at the option of the em-
ployer) applicable Federal farm
labor housing standards or appli-
cable local or State standards for
rental, public accommodation, or
other substantially similar class
of habitation.
‘‘(iii) CHARGES FOR HOUSING.—
An employer who offers housing
to such workers may charge an
amount equal to the fair market
value (but not greater than the
employer’s actual cost) for utili-
ties and maintenance, or such
lesser amount as permitted by
law.
‘‘(iv) HOUSING
ALLOWANCE
AS
ALTERNATIVE.—In lieu of offering
housing to such workers, at the
employer’s sole discretion on an
385
Title VIII, Subtitle B
HR 2202 RH
individual basis, the employer
may provide a reasonable housing
allowance. An employer who of-
fers a housing allowance to such
a worker under this subpara-
graph shall not be deemed to be a
housing provider under section
203 of the Migrant and Seasonal
Agricultural Worker Protection
Act (29 U.S.C. 1823) merely by vir-
tue of providing such housing al-
lowance.
‘‘(v) SECURITY
DEPOSIT.—The
requirement, if any, to offer hous-
ing to such a worker under this
subparagraph shall not preclude
an employer from requiring a rea-
sonable deposit to protect against
gross negligence or willful de-
struction of property, as a condi-
tion for providing such housing.
‘‘(vi) DAMAGES.—An employer
who offers housing to such a
worker shall not be precluded
from requiring a worker found to
386
Title VIII, Subtitle B
HR 2202 RH
have been responsible for damage
to such housing which is not the
result of normal wear and tear re-
lated to habitation to reimburse
the employer for the reasonable
cost of repair of such damage.
‘‘(C) TRANSPORTATION.—If the em-
ployer provides transportation ar-
rangements or assistance to H–2B
aliens, the employer must offer to
provide the same transportation ar-
rangements or assistance (generally
comparable in expense and scope) for
other individuals employed by the
employer in the occupation at the
place of employment who were re-
cruited from beyond normal commut-
ing distance.
‘‘(D) WORKERS’ COMPENSATION.—If
the employment covered by a labor
condition attestation is not covered
by the State workers’ compensation
law, the employer must provide, at no
cost to the worker, insurance cover-
ing injury and disease arising out of
387
Title VIII, Subtitle B
HR 2202 RH
and in the course of the workers’ em-
ployment which will provide benefits
at least equal to those provided under
the State workers’ compensation law
for comparable employment.
‘‘(E) REQUIRED DOCUMENTATION.—
‘‘(i) HOUSING
AND
TRANSPOR-
TATION.—No specific documenta-
tion is required to be maintained
to evidence compliance with the
requirements of subparagraphs
(B) and (C). In the event of a com-
plaint alleging a failure to comply
with such a requirement, the bur-
den of proof shall be on the em-
ployer to show that the employer
offered the required benefit to the
complainant, or that the employer
was not required by the terms of
this paragraph to offer such bene-
fit to the complainant.
‘‘(ii) 
WORKERS’ 
COMPENSA-
TION.—The employer shall main-
tain copies of certificates of insur-
ance evidencing compliance with
388
Title VIII, Subtitle B
HR 2202 RH
subparagraph (D) throughout the
period of validity of the labor
condition attestation.
‘‘(3) REQUIREMENT TO EMPLOY ALIENS IN
TEMPORARY
OR
SEASONAL
AGRICULTURAL
JOB OPPORTUNITIES.—
‘‘(A) LIMITATIONS.—
‘‘(i) 
IN
GENERAL.—The 
em-
ployer may employ H–2B aliens
only in agricultural employment
which is temporary or seasonal.
‘‘(ii) SEASONAL BASIS.—For pur-
poses of this section, labor is per-
formed on a seasonal basis where,
ordinarily, the employment per-
tains to or is of the kind exclu-
sively performed at certain sea-
sons or periods of the year and
which, from its nature, may not
be 
continuous 
or 
carried 
on
throughout the year.
‘‘(iii) TEMPORARY
BASIS.—For
purposes of this section, a worker
is employed on a temporary basis
389
Title VIII, Subtitle B
HR 2202 RH
where 
the 
employment 
is 
in-
tended not to exceed 10 months.
‘‘(B) REQUIRED
DOCUMENTATION.—
No 
specific 
documentation 
is 
re-
quired to demonstrate compliance
with the requirement of subpara-
graph (A). In the event of a com-
plaint, the burden of proof shall fall
on the employer to show that the em-
ployment meets such requirement.
‘‘(4) REQUIREMENT
NOT
TO
EMPLOY
ALIENS IN JOB OPPORTUNITIES VACANT BE-
CAUSE OF A LABOR DISPUTE.—
‘‘(A) IN GENERAL.—No H–2B alien
may be employed in any job oppor-
tunity which is vacant because its
former occupant is involved in a
strike, lockout, or work stoppage in
the course of a labor dispute in the
occupation at the place of employ-
ment.
‘‘(B) REQUIRED
DOCUMENTATION.—
No 
specific 
documentation 
is 
re-
quired to demonstrate compliance
with the requirement of subpara-
390
Title VIII, Subtitle B
HR 2202 RH
graph (A). In the event of a com-
plaint, the burden of proof shall fall
on the employer to show that the job
opportunity in which the H–2B alien
was employed was not vacant be-
cause the former occupant was on
strike, locked out, or participating in
a work stoppage in the course of a
labor dispute in the occupation at the
place of employment.
‘‘(5) NOTICE OF FILING OF ATTESTATION
AND SUPPORTING DOCUMENTATION.—
‘‘(A) IN
GENERAL.—The employer
shall—
‘‘(i) provide notice of the filing
of a labor condition attestation to
the appropriate certified bargain-
ing agent (if any) which rep-
resents workers of the employer
in the occupation (or occupa-
tions) at the place of employment
covered by the attestation; or
‘‘(ii) in the case where no ap-
propriate bargaining agent exists,
post notice of the filing of such an
391
Title VIII, Subtitle B
HR 2202 RH
attestation in at least two con-
spicuous locations where applica-
tions for employment are accept-
ed.
‘‘(B) PERIOD FOR POSTING.—The re-
quirement for a posting under sub-
paragraph (A)(ii) begins on the day
the attestation is filed, and continues
through the period during which the
employer’s job order is required to re-
main active pursuant to paragraph
(6)(A).
‘‘(C) REQUIRED
DOCUMENTATION.—
The employer shall maintain a copy
of the notice provided to the bargain-
ing agent (if any), together with evi-
dence that the notice was provided
(such as a signed receipt of evidence
of attempt to send the notice by cer-
tified or registered mail). In the case
where no appropriate certified bar-
gaining agent exists, the employer
shall retain a copy of the posted no-
tice, together with information as to
392
Title VIII, Subtitle B
HR 2202 RH
the dates and locations where the no-
tice was displayed.
‘‘(6) REQUIREMENT
TO
FILE
A
JOB
ORDER.—
‘‘(A) EFFECT OF THE ATTESTATION.—
The employer, or an association act-
ing as agent for its members, shall
file the information necessary to com-
plete a local job order for each occu-
pation covered by an accepted labor
condition attestation with the appro-
priate local office of the qualified
State employment security agency
having jurisdiction over the area of
intended employment, or with the
State office of such an agency if
workers will be employed in an area
within the jurisdiction of more than
one local office of such an agency.
The job orders shall remain on file
for 25 calendar days or until 5 cal-
endar days before the anticipated
date of need for workers in the occu-
pation covered by the job order,
whichever occurs later. The job order
393
Title VIII, Subtitle B
HR 2202 RH
shall provide at least the minimum
terms and conditions of employment
required for participation in the H–
2B program.
‘‘(B) DEADLINE FOR FILING.—A job
order shall be filed under subpara-
graph (A) no later than the date on
which the employer files a petition
with the Attorney General for admis-
sion or extension of stay for aliens to
be employed in the occupation for
which the order is filed.
‘‘(C) REQUIRED
DOCUMENTATION.—
The office of the qualified State em-
ployment security agency which the
employer 
or 
association 
provides
with information necessary to file a
local job order shall provide the em-
ployer with evidence that the infor-
mation was provided in a timely man-
ner as required by this paragraph,
and the employer or association shall
retain such evidence for each occupa-
tion in which H–2B aliens are em-
ployed.
394
Title VIII, Subtitle B
HR 2202 RH
‘‘(7) REQUIREMENT TO GIVE PREFERENCE
TO QUALIFIED UNITED STATES WORKERS.—
‘‘(A) FILING 30 DAYS OR MORE BE-
FORE DATE OF NEED.—If a job order is
filed 30 days or more before the an-
ticipated date of need for workers in
an occupation covered by a labor con-
dition attestation and for which the
job order has been filed, the employer
shall offer to employ able, willing,
and qualified United States workers
who apply to the employer and who
will be available at the time and
place needed for the job opportuni-
ties covered by the attestation until 5
calendar days before the anticipated
date of need for workers in the occu-
pation, or until the employer’s job op-
portunities in the occupation are
filled with qualified United States
workers, if that occurs more than 5
days before the anticipated date of
need for workers in the occupation.
‘‘(B) FILLING FEWER THAN 30 DAYS
BEFORE DATE OF NEED.—If a job order
395
Title VIII, Subtitle B
HR 2202 RH
is filed fewer than 30 days before the
anticipated date of need for workers
in an occupation covered by such an
attestation and for which a job order
has been filed, the employer shall
offer to employ able, willing, and
qualified United States workers who
are or will be available at the time
and place needed during the first 25
days after the job order is filed or
until the employer’s job opportunities
in the occupation are filled with Unit-
ed 
States 
workers, 
regardless 
of
whether any of the job opportunities
may already be occupied by H–2B
aliens.
‘‘(C) FILING
VACANCIES.—An em-
ployer may fill a job opportunity in
an occupation covered by an accept-
ed attestation which remains or be-
comes vacant after expiration of the
required preference period specified
in subparagraph (A) or (B) of para-
graph (6) without regard to such pref-
erence.
396
Title VIII, Subtitle B
HR 2202 RH
‘‘(D) JOB-RELATED REQUIREMENTS.—
No employer shall be required to ini-
tially employ a worker who fails to
meet lawful job-related employment
criteria, nor to continue the employ-
ment of a worker who fails to meet
lawful job-related standards of con-
duct and performance, including fail-
ure to meet minimum productivity
standards after a 3-day break-in pe-
riod.
‘‘(E) REQUIRED
DOCUMENTATION.—
No 
specific 
documentation 
is 
re-
quired to demonstrate compliance
with the requirements of this para-
graph. In the event of a complaint,
the burden of proof shall be on the
complainant to show that the com-
plainant applied for the job and was
available at the time and place need-
ed. If the complainant makes such a
showing, the burden of proof shall be
on the employer to show that the
complainant was not qualified or that
the preference period had expired.
397
Title VIII, Subtitle B
HR 2202 RH
‘‘(8) REQUIREMENTS OF NOTICE OF CER-
TAIN BREAKS IN EMPLOYMENT.—
‘‘(A) IN
GENERAL.—The employer
(or an association in relation to an H–
2B alien) shall notify the Service
within 7 days if an H–2B alien pre-
maturely abandons the alien’s em-
ployment.
‘‘(B) 
OUT-OF-STATUS.—An 
H–2B
alien who abandons the alien’s em-
ployment shall be considered to have
failed to maintain nonimmigrant sta-
tus as an alien described in section
101(a)(15)(H)(ii)(b) and shall leave the
United States or be subject to depor-
tation under section 241(a)(1)(C)(i).
‘‘(d) ACCEPTANCE BY QUALIFIED STATE EM-
PLOYMENT SECURITY AGENCY.—The qualified
State employment security agency shall re-
view labor condition attestations submitted
by employers or associations only for com-
pleteness and obvious inaccuracies. Unless
such an agency finds that the application is
incomplete or obviously inaccurate, the agen-
cy shall accept the attestation within 7 days
398
Title VIII, Subtitle B
HR 2202 RH
of the date of filing of the attestation, and re-
turn a copy to the applicant marked ‘accept-
ed’.
‘‘(e) 
PUBLIC
REGISTRY.—The 
Secretary
shall maintain a registry of all accepted labor
condition attestations and make such registry
available for public inspection.
‘‘(f) RESPONSIBILITIES
OF
THE
QUALIFIED
STATE EMPLOYMENT SECURITY AGENCIES.—
‘‘(1) DISSEMINATION OF LABOR MARKET
INFORMATION.—The Secretary shall direct
qualified 
State 
employment 
security
agencies to disseminate nonemployer-
specific information about potential labor
needs based on accepted attestations
filed by employers. Such dissemination
shall be separate from the clearance of
job orders through the Interstate and
Intrastate Clearance Systems, and shall
create no obligations for employers ex-
cept as provided in this section.
‘‘(2) REFERRAL OF WORKERS ON QUALI-
FIED STATE EMPLOYMENT SECURITY AGENCY
JOB ORDERS.—Such agencies holding job
orders filed by employers covered by ap-
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Title VIII, Subtitle B
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proved labor condition attestations shall
be authorized to refer any able, willing,
and qualified eligible job applicant who
will be available at the time and place
needed and who is authorized to work in
the united States, including H–2B aliens
who are seeking additional work in the
United States and whose eligibility to re-
main in the United States pursuant to
subsection (h) has not expired, on job or-
ders filed by holders of accepted attesta-
tions.
‘‘(g) ENFORCEMENT AND PENALTIES.—
‘‘(1) ENFORCEMENT AUTHORITY.—
‘‘(A) 
INVESTIGATION
OF
COM-
PLAINTS.—The Secretary shall estab-
lish a process for the receipt, inves-
tigation, 
and 
disposition 
of 
com-
plaints respecting an employer’s fail-
ure to meet a condition specified in
subsection (a) or an employer’s mis-
representation of material facts in
such an application. Complaints may
be filed by any aggrieved person or
organizations (including bargaining
400
Title VIII, Subtitle B
HR 2202 RH
representatives). No investigation or
hearing shall be conducted on a com-
plaint concerning such a failure or
misrepresentation unless the com-
plaint was filed not later than 12
months after the date of the failure or
misrepresentation, respectively. The
Secretary shall conduct an investiga-
tion under this subparagraph if there
is reasonable cause to believe that
such a failure or misrepresentation
has occurred.
‘‘(B) WRITTEN NOTICE OF FINDINGS
AND
OPPORTUNITY
FOR
APPEAL.—After
an investigation has been conducted,
the Secretary shall issue a written de-
termination as to whether or not any
violation described in paragraph (2)
has been committed. The Secretary’s
determination shall be served on the
complainant and the employer, and
shall provide an opportunity for an
appeal of the Secretary’s decision to
an administrative law judge, who
may conduct a de novo hearing.
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‘‘(2) REMEDIES.—
‘‘(A) BACK
WAGES.—Upon a final
determination that the employer has
failed to pay wages as required under
this section, the Secretary may assess
payment of back wages due to any
United States worker or H–2B alien
employed by the employer in the spe-
cific employment in question. The
back wages shall be equal to the dif-
ference between the amount that
should 
have 
been 
paid 
and 
the
amount that actually was paid to
such worker.
‘‘(B) FAILURE TO PAY WAGES.—Upon
a final determination that the em-
ployer has failed to pay the wages re-
quired under this section, the Sec-
retary may assess a civil money pen-
alty up to $1,000 for each failure, and
may recommend to the Attorney Gen-
eral the disqualification of the em-
ployer from the employment of H–2B
aliens for a period of time determined
by the Secretary not to exceed 1 year.
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‘‘(C) OTHER
VIOLATIONS.—If the
Secretary, as a result of an investiga-
tion pursuant to a complaint, deter-
mines that an employer covered by
an accepted labor condition attesta-
tion has—
‘‘(i) filed an attestation which
misrepresents a material fact; or
‘‘(ii) failed to meet a condition
specified in subsection (a),
the Secretary may assess a civil
money penalty not to exceed $1,000
for each violation. In determining the
amount of civil money penalty to be
assessed, the Secretary shall consider
the seriousness of the violation, the
good faith of the employer, the size of
the business of the employer being
charged, the history of previous viola-
tions by the employer, whether the
employer obtained a financial gain
from the violation, whether the viola-
tion was willful, and other relevant
factors.
‘‘(D) PROGRAM DISQUALIFICATION.—
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Title VIII, Subtitle B
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‘‘(i) 3-YEARS FOR SECOND VIOLA-
TION.—Upon a second final deter-
mination that an employer has
failed to pay the wages required
under this section, the Secretary
shall report such determination
to the Attorney General and the
Attorney General shall disqualify
the employer from the employ-
ment of H–2B aliens for a period
of 3 years.
‘‘(ii) PERMANENT
FOR
THIRD
VIOLATION.—Upon a third final de-
termination that an employer has
failed to pay the wages required
under this section, the Secretary
shall report such determination
to the Attorney General and the
Attorney General shall disqualify
the employer from any subse-
quent employment of H–2B aliens.
‘‘(3) ROLE OF ASSOCIATIONS.—
‘‘(A) VIOLATION BY A MEMBER OF AN
ASSOCIATION.—An employer on whose
behalf a labor condition attestation is
404
Title VIII, Subtitle B
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filed by an association acting as its
agent is fully responsible for such at-
testation, and for complying with the
terms and conditions of this section,
as though the employer had filed the
attestation itself. If such an employer
is determined to have violated a re-
quirement of this section, the penalty
for such violation shall be assessed
against the employer who committed
the violation and not against the as-
sociation or other members of the as-
sociation.
‘‘(B) VIOLATION BY AN ASSOCIATION
ACTING AS AN EMPLOYER.—If an asso-
ciation filing a labor condition attes-
tation on its own behalf as an em-
ployer is determined to have commit-
ted a violation under this subsection
which results in disqualification from
the program under paragraph (2)(D),
no individual member of such asso-
ciation may be the beneficiary of the
services of an H–2B alien in an occu-
pation in which such alien was em-
405
Title VIII, Subtitle B
HR 2202 RH
ployed by the association during the
period such disqualification is in ef-
fect, unless such member files a labor
condition attestation as an individual
employer or such an attestation is
filed on the employer’s behalf by an
association with which the employer
has an agreement that the employer
will comply with the requirements of
this section.
‘‘(h) PROCEDURE FOR ADMISSION OR EXTEN-
SION OF H–2B Aliens.—
‘‘(1) ALIENS WHO ARE OUTSIDE THE UNIT-
ED STATES.—
‘‘(A) PETITIONING FOR ADMISSION.—
An employer or an association acting
as agent for its members who seeks
the admission into the United States
of H–2B aliens may file a petition
with the District Director of the Serv-
ice having jurisdiction over the loca-
tion where the aliens will be em-
ployed. The petition shall be accom-
panied by an accepted and currently
valid labor condition attestation cov-
406
Title VIII, Subtitle B
HR 2202 RH
ering the petitioner. The petition may
be for named or unnamed individual
or multiple beneficiaries.
‘‘(B) EXPEDITED
ADJUDICATION
BY
DISTRICT DIRECTOR.—If an employer’s
petition for admission of H–2B aliens
is correctly filled out, and the em-
ployer is not ineligible to employ H–
2B aliens, the District Director (or the
Director’s designee) shall approve the
petition within 3 working days of re-
ceipt of the petition and accepted
labor condition attestation and imme-
diately (by fax, cable, or other means
assuring expedited delivery) transmit
a copy of the approved petition to the
petitioner and to the appropriate im-
migration officer at the port of entry
or United States consulate (as the
case may be) where the petitioner has
indicated that the alien beneficiary
(or beneficiaries) will apply for a visa
or admission to the United States.
‘‘(C) UNNAMED
BENEFICIARIES
SE-
LECTED BY PETITIONER.—The petition-
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Title VIII, Subtitle B
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ing employer or association or its
representative shall approve the issu-
ance of visas to beneficiaries who are
unnamed on a petition for admission
granted to the employer or associa-
tion.
‘‘(D) CRITERIA FOR ADMISSIBILITY.—
‘‘(i) 
IN
GENERAL.—An 
alien
shall be admissible under this sec-
tion if the alien is otherwise ad-
missible under this Act and the
alien is not debarred pursuant to
the provisions of clause (ii).
‘‘(ii) 
DISQUALIFICATION.—An
alien shall be debarred from ad-
mission or being provided status
as an H–2B alien under this sec-
tion if the alien has, at any time—
‘‘(I) violated a material
provision of this section, in-
cluding the requirement to
promptly depart the United
States when the alien’s au-
thorized period of admission
408
Title VIII, Subtitle B
HR 2202 RH
under this section has ex-
pired; or
‘‘(II) has otherwise vio-
lated a term or condition of
admission 
to 
the 
United
States as a nonimmigrant, in-
cluding overstaying the pe-
riod of authorized admission
as such a nonimmigrant.
‘‘(E) PERIOD
OF
ADMISSION.—The
alien shall be admitted for the period
requested by the petitioner not to ex-
ceed 10 months, or the remaining va-
lidity period of the petitioner’s ap-
proved labor condition attestation,
whichever is shorter, plus an addi-
tional period of 14 days, during which
the alien shall seek authorized em-
ployment in the United States. Dur-
ing the 14-day period following the
expiration of the alien’s work author-
ization, the alien is not authorized to
be employed unless the original peti-
tioner or a subsequent petitioner has
409
Title VIII, Subtitle B
HR 2202 RH
filed an extension of stay on behalf of
the alien.
‘‘(F) ISSUANCE
OF
IDENTIFICATION
AND
EMPLOYMENT
ELIGIBILITY
DOCU-
MENT.—
‘‘(i) IN GENERAL.—The Attorney
General shall cause to be issued
to each H–2B alien a card in a
form which is resistant to coun-
terfeiting and tampering for the
purpose of providing proof of
identity and employment eligi-
bility under section 274A.
‘‘(ii) DESIGN
OF
CARD.—Each
card issued pursuant to clause (i)
shall be designed in such a man-
ner and contain a photograph and
other 
identifying 
information
(such as date of birth, sex, and
distinguishing marks) that would
allow an employer to determine
with reasonable certainty that the
bearer is not claiming the iden-
tity of another individual, and
shall—
410
Title VIII, Subtitle B
HR 2202 RH
‘‘(I) contain a fingerprint
or other biometric identifying
data (or both);
‘‘(II) specify the date of
the aliens authorization as an
H–2B alien;
‘‘(III) specify the expira-
tion date of the alien’s work
authorization; and
‘‘(IV) specify the alien’s
admission number or alien
file number.
‘‘(2) EXTENSION OF STAY.—
‘‘(A) APPLICATION
FOR
EXTENSION
OF STAY.—If a petitioner seeks to em-
ploy an H–2B alien already in the
United States, the petitioner shall file
an application for an extension of
stay. The application for extension of
stay shall be accompanied by a cur-
rently valid labor condition attesta-
tion.
‘‘(B) LIMITATION ON FILING AN AP-
PLICATION FOR EXTENSION OF STAY.—An
application may not be filed for an
411
Title VIII, Subtitle B
HR 2202 RH
extension of an alien’s stay for a pe-
riod of more than 10 months, or later
than a date which is 2 years from the
date of the alien’s last admission to
the United States as a H–2B alien,
whichever occurs first. An applica-
tion for extension of stay may not be
filed during the pendency of an
alien’s previous authorized period of
admission, nor after the alien’s au-
thorized stay in the United States has
expired.
‘‘(C) WORK
AUTHORIZATION
UPON
FILING AN APPLICATION FOR EXTENSION
OF STAY.—An employer may begin em-
ploying an alien already in the Unit-
ed States in H–2B status on the day
the employer files its application for
extension of stay with the Service.
For the purpose of this requirement,
the term ‘filing’ means sending the
application by certified mail via the
United States Postal Service, return
receipt requested, or delivered by
guaranteed 
commercial 
delivery
412
Title VIII, Subtitle B
HR 2202 RH
which will provide the employer with
a documented acknowledgment of re-
ceipt of the application. The employer
shall provide a copy of the employer’s
application for extension of stay to
the alien, who shall keep the applica-
tion with the alien’s identification
and employment eligibility card as
evidence that the extension has been
filed and that the alien is authorized
to work in the United States. Upon
approval of an application for exten-
sion of stay, the Service shall provide
a new employment document to the
alien indicating a new validity date,
after which the alien is not required
to retain a copy of the application for
extension of stay.
‘‘(D) LIMITATION
ON
EMPLOYMENT
AUTHORIZATION
OF
H–2B
ALIENS
WITH-
OUT VALID IDENTIFICATION AND EMPLOY-
MENT
ELIGIBILITY
CARD.—An expired
identification and employment eligi-
bility card, together with a copy of an
application for extension of stay,
413
Title VIII, Subtitle B
HR 2202 RH
shall constitute a valid work author-
ization document for a period of not
more than 60 days from the date of
application for the extension of stay,
after which time only a currently
valid identification and employment
eligibility card shall be acceptable.
‘‘(3) LIMITATION
ON
AN
INDIVIDUAL’S
STAY IN H–2B STATUS.—An alien having sta-
tus as an H–2B alien may not have the
status extended for a continuous period
longer than 2 years unless the alien re-
mains outside the United States for an
uninterrupted period of 6 months. An ab-
sence from the United States may break
the continuity of the period for which an
H–2B visa is valid. If the alien has resided
in the United States 10 months or less, an
absence breaks the continuity of the pe-
riod if it lasts for at least 2 months. If the
alien has resided in the United States 10
months or more, an absence breaks the
continuity of the period if it lasts for at
least one-fifth the duration of the stay.
414
Title VIII, Subtitle B
HR 2202 RH
‘‘(i) TRUST FUND TO ASSURE WORKER RE-
TURN.—
‘‘(1) ESTABLISHMENT.—There is estab-
lished in the Treasury of the United
States a trust fund (in this section re-
ferred to as the ‘Trust Fund’) for the pur-
pose of providing a monetary incentive
for H–2B aliens to return to their country
of origin upon expiration of their visas
under this section.
‘‘(2) WITHHOLDING OF WAGES; PAYMENT
INTO THE TRUST FUND.—
‘‘(A) IN
GENERAL.—Employers of
H–2B aliens shall—
‘‘(i) withhold from the wages
of their H–2B alien workers an
amount equivalent to 25 percent
of the wages of each H–2B alien
worker and pay such withheld
amount into the Trust Fund in ac-
cordance with paragraph (3); and
‘‘(ii) pay to the Trust Fund an
amount equivalent to the Federal
tax on the wages paid to H–2B
aliens that the employer would be
415
Title VIII, Subtitle B
HR 2202 RH
obligated to pay under the Fed-
eral Unemployment Tax Act and
the Federal Insurance Contribu-
tions Act.
Amounts withheld under clause (i)
shall be maintained in such interest
bearing account with such a financial
institution as the Attorney General
shall specify.
‘‘(3) 
DISTRIBUTION
OF
FUNDS.—The
amounts paid into the Trust Fund and
held pursuant to paragraph (2)(A)(i), and
interest earned thereon, shall be paid by
the Attorney General as follows:
‘‘(A) 
REIMBURSEMENT
OF
EMER-
GENCY
MEDICAL
EXPENSES.—To reim-
burse valid claims for reimbursement
of emergency medical services fur-
nished to H–2B aliens, to the extent
that sufficient funds are not available
on an annual basis from the Trust
Fund 
pursuant 
to 
paragraphs
(2)(A)(ii) and (4)(B).
‘‘(B) 
PAYMENTS
TO
WORKERS.—
Amounts paid into the Trust Fund on
416
Title VIII, Subtitle B
HR 2202 RH
behalf of a worker, and interest
earned thereon, less a pro rata reduc-
tion for any payments made pursuant
to subparagraph (A), shall be paid by
the Attorney General to the worker
if—
‘‘(i) the worker applies to the
Attorney General (or the designee
of the Attorney General) for pay-
ment within 30 days of the expira-
tion of the alien’s last authorized
stay in the United States as a H–
2B alien;
‘‘(ii) in such application the
worker establishes that the work-
er has complied with the terms
and conditions of this section;
and
‘‘(iii) in connection with the
application, the worker tenders
the identification and employ-
ment authorization card issued to
the 
worker 
pursuant 
to 
sub-
section (h)(1)(F) and establishes
that the worker is identified as
417
Title VIII, Subtitle B
HR 2202 RH
the person to whom the card was
issued based on the biometric
identification 
information 
con-
tained on the card.
‘‘(4) 
ADMINISTRATIVE
EXPENSES
AND
EMERGENCY
MEDICAL
EXPENSES.—The
amounts paid into the Trust Fund and
held pursuant to paragraph (2)(A)(ii), and
interest earned thereon, shall be paid by
the Attorney General as follows:
‘‘(A) ADMINISTRATIVE
EXPENSES.—
First, to the Attorney General, the
Secretary of Labor, and the Secretary
of State in amounts equivalent to the
expenses incurred by such officials in
the 
administration 
of 
section
101(a)(15)(H)(ii)(b) and this section.
‘‘(B) 
REIMBURSEMENT
OF
EMER-
GENCY
MEDICAL
SERVICES.—Any 
re-
maining amounts shall be available
on an annual basis to reimburse hos-
pitals for emergency medical services
furnished to H–2B aliens as provided
in subsection (k)(2).
418
Title VIII, Subtitle B
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‘‘(5) REGULATIONS.—The Attorney Gen-
eral shall prescribe regulations to carry
out this subsection.
‘‘(j) INVESTMENT OF TRUST FUND.—
‘‘(1) IN GENERAL.—It shall be the duty
of the Secretary of the Treasury to invest
such portion of the Trust Fund as is not,
in the Secretary’s judgement, required to
meet current withdrawals. Such invest-
ments may be made only in interest-bear-
ing obligations of the United States or in
obligations guaranteed as to both prin-
cipal and interest by the United States.
For such purpose, such obligations may
be acquired—
‘‘(A) on original issue at the price;
or
‘‘(B) by purchase of outstanding
obligations at the market price.
The purposes for which obligations of the
United States may be issued under chap-
ter 31 of title 31, United States Code, are
hereby extended to authorize the issu-
ance at par of special obligations exclu-
sively to the Trust Fund. Such special ob-
419
Title VIII, Subtitle B
HR 2202 RH
ligations shall bear interest at a rate
equal to the average rate of interest, com-
puted as to the end of the calendar
month next preceding the date of such
issue, borne by all marketable interest-
bearing obligations of the United States
then forming a part of the public debt,
except that where such average rate is
not a multiple of one-eighth of 1 percent
next lower than such average rate. Such
special obligations shall be issued only if
the Secretary of the Treasury determines
that the purchase of other interest-bear-
ing obligations of the United States, or of
obligations guaranteed as to both prin-
cipal and interest by the United States on
original issue or at the market price, is
not in the public interest.
‘‘(2) SALE OF OBLIGATION.—Any obliga-
tion acquired by the Trust Fund (except
special obligations issued exclusively to
the Trust Fund) may be sold by the Sec-
retary of the Treasury at the market
price, and such special obligations may
be redeemed at par plus accrued interest.
420
Title VIII, Subtitle B
HR 2202 RH
‘‘(3) CREDITS TO TRUST FUND.—The in-
terest on, and the proceeds from the sale
or redemption of, any obligations held in
the Trust Fund shall be credited to and
form a part of the Trust Fund.
‘‘(4) REPORT TO CONGRESS.—It shall be
the duty of the Secretary of the Treasury
to hold the Trust Fund, and (after con-
sultation with the Attorney General) to
report to the Congress each year on the
financial condition and the results of the
operations of the Trust Fund during the
preceding fiscal year and on its expected
condition and operations during the next
fiscal year. Such report shall be printed
as both a House and a Senate document
of the session of the Congress to which
the report is made.
‘‘(k) REIMBURSEMENT
OF COST
OF EMER-
GENCY MEDICAL SERVICES.—
‘‘(1) IN GENERAL.—The Attorney Gen-
eral shall establish procedures for reim-
bursement of hospitals operated by a
State or by a unit of local government (or
corporation owned or controlled by the
421
Title VIII, Subtitle B
HR 2202 RH
State or unit) for the reasonable cost of
providing emergency medical services (as
defined by the Attorney General in con-
sultation with the Secretary of Health
and Human Services) in the United
States to H–2B aliens for which payment
has not been otherwise reimbursed.
‘‘(2) SOURCE OF FUNDS FOR REIMBURSE-
MENT.—Funds for reimbursement of hos-
pitals pursuant to paragraph (1) shall be
drawn—
‘‘(A) 
first 
under 
subsection
(i)(4)(B), from amounts deposited in
the Trust Fund under subsection
(i)(2)(A)(ii) after reimbursement of
certain administrative expenses; and
‘‘(B) 
then 
under 
subsection
(i)(3)(A), to the extent that funds de-
scribed in subparagraph (A) are in-
sufficient to meet valid claims, from
amounts deposited in the Trust Fund
under subsection (i)(2)(A)(i).
‘‘(l) MISCELLANEOUS PROVISIONS.—
‘‘(1) APPLICABILITY
OF
LABOR
LAWS.—
Except as provided in paragraphs (2), (3),
422
Title VIII, Subtitle B
HR 2202 RH
and (4), all Federal, State, and local labor
laws (including laws affecting migrant
farm workers) applicable to United States
workers shall also apply to H–2B aliens.
‘‘(2) LIMITATION
OF
WRITTEN
DISCLO-
SURE IMPOSED UPON RECRUITERS.—Any dis-
closure required of recruiters under sec-
tion 201(a) of the Migrant and Seasonal
Agricultural Worker Protection Act (29
U.S.C. 1821(a)) need not be given to H–2B
aliens prior to the time their visa is is-
sued permitted entry into the United
States.
‘‘(3) EXEMPTION
FROM
FICA
AND
FUTA
TAXES.—The wages paid to H–2B aliens
shall be excluded from wages subject to
taxation under the Federal Unemploy-
ment Tax Act and under the Federal In-
surance Contributions Act.
‘‘(4) INELIGIBILITY FOR CERTAIN PUBLIC
BENEFITS PROGRAMS.—
‘‘(A) IN
GENERAL.—Notwithstand-
ing any other provision of law and ex-
cept as provided in subparagraph (B),
any alien provided status as an H–2B
423
Title VIII, Subtitle B
HR 2202 RH
alien shall not be eligible for any Fed-
eral or State or local means-tested
public benefit program.
‘‘(B) 
EXCEPTIONS.—Subparagraph
(A) shall not apply to the following:
‘‘(i) EMERGENCY MEDICAL SERV-
ICES.—The provision of emergency
medical services (as defined by
the Attorney General in consulta-
tion with the Secretary of Health
and Human Services).
‘‘(ii) PUBLIC HEALTH IMMUNIZA-
TIONS.—Public health assistance
for immunizations with respect to
immunizable 
diseases 
and 
for
testing and treatment for commu-
nicable diseases.
‘‘(iii) SHORT-TERM
EMERGENCY
DISASTER
RELIEF.—The provision
of non-cash, in-kind, short-term
emergency disaster relief.
‘‘(m) CONSULTATION ON REGULATIONS.—
‘‘(1) REGULATIONS OF THE SECRETARY.—
The Secretary shall consult with the Sec-
retary of Agriculture, and the Attorney
424
Title VIII, Subtitle B
HR 2202 RH
General shall approve, all regulations
dealing with the approval of labor condi-
tion attestations for H–2B aliens or en-
forcement of the requirements for em-
ploying H–2B aliens under an approved
attestation.
‘‘(2) REGULATIONS
OF
THE
ATTORNEY
GENERAL.—The Attorney General shall
consult with the Secretary of Agriculture
on all regulations dealing with the ap-
proval of petitions for admission or ex-
tension of stay of H–2B aliens or the re-
quirements for employing H–2B aliens or
the enforcement of such requirements.
‘‘(n) DEFINITIONS.—For the purpose of this
section:
‘‘(1) AGRICULTURAL
ASSOCIATION.—The
term ‘agricultural association’ means any
nonprofit or cooperative association of
farmers, growers, or ranchers incor-
porated or qualified under applicable
State law, which recruits, solicits, hires,
employs, furnishes, or transports any ag-
ricultural workers.
425
Title VIII, Subtitle B
HR 2202 RH
‘‘(2) AGRICULTURAL EMPLOYMENT.—The
term ‘agricultural employment’ means
any service or activity included within
the provisions of section 3(f) of the Fair
Labor Standards Act of 1938 (29 U.S.C.
203(f)) or section 3121(g) of the Internal
Revenue Code of 1986 and the handling,
planting, 
drying, 
packing, 
packaging,
processing, freezing, or grading prior to
delivery for storage of any agricultural or
horticultural commodity in its unmanu-
factured state.
‘‘(3) EMPLOYER.—The term ‘employer’
means any person or entity, including
any independent contractor and any agri-
cultural association, that employs work-
ers.
‘‘(4) H–2B 
ALIEN.—The term ‘H–2B
alien’ means an alien admitted to the
United States or provided status as a
nonimmigrant 
under 
section
101(a)(15)(H)(ii)(b).
‘‘(5) QUALIFIED STATE EMPLOYMENT SE-
CURITY AGENCY.—The term ‘qualified State
employment security agency’ means a
426
Title VIII, Subtitle B
HR 2202 RH
State employment security agency in a
State in which the Secretary has deter-
mined that the State operates a job serv-
ice that actively seeks to match agricul-
tural workers with jobs and participates
in a multi-State job service program in
States where significant supplies of farm
labor exist.
‘‘(6) SECRETARY.—The term ‘Secretary’
means the Secretary of Labor.
‘‘(7) 
UNITED
STATES
WORKER.—The
term ‘United States worker’ means any
worker, whether a United States citizen,
a United States national, or an alien, who
is legally permitted to work in the job op-
portunity within the United States other
than aliens admitted pursuant to this sec-
tion.’’
(b) CLERICAL AMENDMENT.—The table of
contents is amended by inserting after the
item relating to section 218 the following new
item:
‘‘Sec. 218A. Alternative agricultural worker program.’’.
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Title VIII, Subtitle B
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SECTION 1. SHORT TITLE; AMENDMENTS TO IMMIGRATION
AND NATIONALITY ACT; TABLE OF CONTENTS.
(a) SHORT TITLE.—This Act may be cited as the ‘‘Im-
migration in the National Interest Act of 1995’’.
(b) AMENDMENTS TO IMMIGRATION AND NATIONALITY
ACT.—Except as otherwise specifically provided—
(1) whenever in this Act an amendment or re-
peal is expressed as the amendment or repeal of a sec-
tion or other provision, the reference shall be consid-
ered to be made to that section or provision in the
Immigration and Nationality Act, and
(2) amendments to a section or other provision
are to such section or other provision as in effect on
the date of the enactment of this Act and before any
amendment made to such section or other provision
elsewhere in this Act.
(c) TABLE OF CONTENTS.—The table of contents for
this Act is as follows:
Sec. 1. Short title; amendments to Immigration and Nationality Act; table of con-
tents.
TITLE 
I—DETERRENCE 
OF 
ILLEGAL 
IMMIGRATION
THROUGH IMPROVED BORDER ENFORCEMENT, PILOT
PROGRAMS, AND INTERIOR ENFORCEMENT
Subtitle A—Improved Enforcement at Border
Sec. 101. Border patrol agents and support personnel.
Sec. 102. Improvement of barriers at border.
Sec. 103. Improved border equipment and technology.
Sec. 104. Improvement in border crossing identification card.
Sec. 105. Civil penalties for illegal entry.
Sec. 106. Prosecution of aliens repeatedly reentering the United States unlaw-
fully.
Sec. 107. Inservice training for the border patrol.
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Subtitle B—Pilot Programs
Sec. 111. Pilot program on interior repatriation.
Sec. 112. Pilot program on use of closed military bases for the detention of inad-
missible or deportable aliens.
Sec. 113. Pilot program to collect records of departing passengers.
Subtitle C—Interior Enforcement
Sec. 121. Increase in personnel for interior enforcement.
TITLE II—ENHANCED ENFORCEMENT AND PENALTIES
AGAINST ALIEN SMUGGLING; DOCUMENT FRAUD
Subtitle A—Enhanced Enforcement and Penalties Against
Alien Smuggling
Sec. 201. Wiretap authority for alien smuggling investigations.
Sec. 202. Racketeering offenses relating to alien smuggling.
Sec. 203. Increased criminal penalties for alien smuggling.
Sec. 204. Increased number of Assistant United States Attorneys.
Sec. 205. Undercover investigation authority.
Subtitle B—Deterrence of Document Fraud
Sec. 211. Increased criminal penalties for fraudulent use of government-issued
documents.
Sec. 212. New civil penalties for document fraud.
Sec. 213. New civil penalty for failure to present documents and for preparing
immigration documents without authorization.
Sec. 214. New criminal penalties for failure to disclose role as preparer of false
application for asylum and for preparing certain post-convic-
tion applications.
Sec. 215. Criminal penalty for knowingly presenting document which fails to
contain reasonable basis in law or fact.
Sec. 216. Criminal penalties for false claim to citizenship.
Subtitle C—Asset Forfeiture for Passport and Visa Offenses
Sec. 221. Criminal forfeiture for passport and visa related offenses.
Sec. 222. Subpoenas for bank records.
Sec. 223. Effective date.
TITLE III—INSPECTION, APPREHENSION, DETENTION, AD-
JUDICATION, AND REMOVAL OF INADMISSIBLE AND DE-
PORTABLE ALIENS
Subtitle A—Revision of Procedures for Removal of Aliens
Sec. 300. Overview of changes in removal procedures.
Sec. 301. Treating persons present in the United States without authorization as
not admitted.
Sec. 302. Inspection of aliens; expedited removal of inadmissible arriving aliens;
referral for hearing (revised section 235).
Sec. 303. Apprehension and detention of aliens not lawfully in the United States
(revised section 236).
Sec. 304. Removal proceedings; cancellation of removal and adjustment of status;
voluntary departure (revised and new sections 239 to 240C).
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Sec. 305. Detention and removal of aliens ordered removed (new section 241).
Sec. 306. Appeals from orders of removal (new section 242).
Sec. 307. Penalties relating to removal (revised section 243).
Sec. 308. Redesignation and reorganization of other provisions; additional con-
forming amendments.
Sec. 309. Effective dates; transition.
Subtitle B—Removal of Alien Terrorists
PART 1—REMOVAL PROCEDURES FOR ALIEN TERRORISTS
Sec. 321. Removal procedures for alien terrorists.
‘‘TITLE V—SPECIAL REMOVAL PROCEDURES FOR ALIEN
TERRORISTS
‘‘Sec. 501. Definitions.
‘‘Sec. 502. Establishment of special removal court; panel of attorneys to as-
sist with classified information.
‘‘Sec. 503. Application for initiation of special removal proceeding.
‘‘Sec. 504. Consideration of application.
‘‘Sec. 505. Special removal hearings.
‘‘Sec. 506. Consideration of classified information.
‘‘Sec. 507. Appeals.
‘‘Sec. 508. Detention and custody.’’
Sec. 322. Funding for detention and removal of alien terrorists.
PART 2—INADMISSIBILITY AND DENIAL OF RELIEF FOR ALIEN TERRORISTS
Sec. 331. Membership in terrorist organization as ground of inadmissibility.
Sec. 332. Denial of relief for alien terrorists.
Subtitle C—Deterring Transportation of Unlawful Aliens to the
United States
Sec. 341. Definition of stowaway.
Sec. 342. List of alien and citizen passengers arriving.
Subtitle D—Additional Provisions
Sec. 351. Definition of conviction.
Sec. 352. Immigration judges and compensation.
Sec. 353. Rescission of lawful permanent resident status.
Sec. 354. Civil penalties for failure to depart.
Sec. 355. Clarification of district court jurisdiction.
Sec. 356. Use of retired Federal employees for institutional hearing program.
Sec. 357. Enhanced penalties for failure to depart, illegal reentry, and passport
and visa fraud.
Sec. 358. Authorization of additional funds for removal of aliens.
Sec. 359. Application of additional civil penalties to enforcement.
Sec. 360. Prisoner transfer treaties.
Sec. 361. Criminal alien identification system.
Sec. 362. Waiver of exclusion and deportation ground for certain section 274C
violators.
Sec. 363. Authorizing registration of aliens on criminal probation or criminal
parole.
Sec. 364. Confidentiality provision for certain alien battered spouses and chil-
dren.
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TITLE IV—ENFORCEMENT OF RESTRICTIONS AGAINST
EMPLOYMENT
Sec. 401. Strengthened enforcement of the employer sanctions provisions.
Sec. 402. Strengthened enforcement of wage and hour laws.
Sec. 403. Changes in the employer sanctions program.
Sec. 404. Reports on earnings of aliens not authorized to work.
Sec. 405. Authorizing maintenance of certain information on aliens.
Sec. 406. Limiting liability for certain technical violations of paperwork require-
ments.
Sec. 407. Unfair immigration-related employment practices.
TITLE V—REFORM OF LEGAL IMMIGRATION SYSTEM
Sec. 500. Overview of new legal immigration system.
Subtitle A—Worldwide Numerical Limits
Sec. 501. Worldwide numerical limitation on family-sponsored immigrants.
Sec. 502. Worldwide numerical limitation on employment-based immigrants.
Sec. 503. Worldwide numerical limitation on diversity immigrants.
Sec. 504. Establishment of numerical limitation on humanitarian immigrants.
Sec. 505. Requiring congressional review and reauthorization of worldwide levels
every 5 years.
Subtitle B—Changes in Preference System
Sec. 511. Limitation of immediate relatives to spouses and children.
Sec. 512. Change in family-sponsored classification.
Sec. 513. Change in employment-based classification.
Sec. 514. Changes in diversity immigrant program.
Sec. 515. Authorization to require periodic confirmation of classification peti-
tions.
Sec. 516. Changes in special immigrant status.
Sec. 517. Requirements for removal of conditional status of entrepreneurs.
Sec. 518. Adult disabled children.
Sec. 519. Miscellaneous conforming amendments.
Subtitle C—Refugees, Parole, and Humanitarian Admissions
Sec. 521. Changes in refugee annual admissions.
Sec. 522. Persecution for resistance to coercive population control methods.
Sec. 523. Parole available only on a case-by-case basis for humanitarian reasons
or significant public benefit.
Sec. 524. Admission of humanitarian immigrants.
Subtitle D—Asylum Reform
Sec. 531. Asylum reform.
Sec. 532. Fixing numerical adjustments for asylees at 10,000 each year.
Sec. 533. Increased resources for reducing asylum application backlogs.
Subtitle E—General Effective Date; Transition Provisions
Sec. 551. General effective date.
Sec. 552. General transition for current classification petitions.
Sec. 553. Special transition for certain backlogged spouses and children of lawful
permanent resident aliens.
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Sec. 554. Special treatment of certain disadvantaged family first preference im-
migrants.
Sec. 555. Authorization of reimbursement of petitioners for eliminated family-
sponsored categories.
TITLE VI—RESTRICTIONS ON BENEFITS FOR ALIENS
Sec. 600. Statements of national policy concerning welfare and immigration.
Subtitle A—Eligibility of Illegal Aliens for Public Benefits
PART 1—PUBLIC BENEFITS GENERALLY
Sec. 601. Making illegal aliens ineligible for public assistance, contracts, and li-
censes.
Sec. 602. Making unauthorized aliens ineligible for unemployment benefits.
Sec. 603. General exceptions.
Sec. 604. Treatment of expenses subject to emergency medical services exception.
Sec. 605. Report on disqualification of illegal aliens from housing assistance pro-
grams.
Sec. 606. Verification of student eligibility for postsecondary Federal student fi-
nancial assistance.
Sec. 607. Payment of public assistance benefits.
Sec. 608. Definitions.
Sec. 609. Regulations and effective dates.
PART 2—EARNED INCOME TAX CREDIT
Sec. 611. Earned income tax credit denied to individuals not authorized to be em-
ployed in the United States.
Subtitle B—Expansion of Disqualification From Immigration
Benefits on the Basis of Public Charge
Sec. 621. Ground for inadmissibility.
Sec. 622. Ground for deportability.
Subtitle C—Attribution of Income and Affidavits of Support
Sec. 631. Attribution of sponsor’s income and resources to family-sponsored im-
migrants.
Sec. 632. Requirements for sponsor’s affidavit of support.
TITLE VII—FACILITATION OF LEGAL ENTRY
Sec. 701. Additional land border inspectors; infrastructure improvements.
Sec. 702. Commuter lane pilot programs.
Sec. 703. Preinspection at foreign airports.
Sec. 704. Training of airline personnel in detection of fraudulent documents.
TITLE VIII—MISCELLANEOUS PROVISIONS
Subtitle A—Amendments to the Immigration and Nationality
Act
Sec. 801. Nonimmigrant status for spouses and children of members of the Armed
Services.
Sec. 802. Amended definition of aggravated felony.
Sec. 803. Authority to determine visa processing procedures.
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Title I, Subtitle A
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Sec. 804. Waiver authority concerning notice of denial of application for visas.
Sec. 805. Treatment of Canadian landed immigrants.
Sec. 806. Changes relating to H–1B nonimmigrants.
Sec. 807. Validity of period of visas.
Sec. 808. Limitation on adjustment of status of individuals not lawfully present
in the United States.
Sec. 809. Limited access to certain confidential INS files.
Sec. 810. Change of nonimmigrant classification.
Subtitle B—Other Provisions
Sec. 831. Commission report on fraud associated with birth certificates.
Sec. 832. Uniform vital statistics.
Sec. 833. Communication between State and local government agencies, and the
Immigration and Naturalization Service.
Sec. 834. Criminal alien reimbursement costs.
Sec. 835. Female genital mutilation.
Sec. 836. Designation of Portugal as a visa waiver pilot program country with
probationary status.
Subtitle C—Technical Corrections
Sec. 851. Miscellaneous technical corrections.
TITLE I—DETERRENCE OF ILLE-
GAL IMMIGRATION THROUGH
IMPROVED 
BORDER 
EN-
FORCEMENT, 
PILOT 
PRO-
GRAMS, AND INTERIOR EN-
FORCEMENT
Subtitle A—Improved Enforcement
at Border
SEC. 101. BORDER PATROL AGENTS AND SUPPORT PERSON-
NEL.
(a) INCREASED NUMBER OF BORDER PATROL POSI-
TIONS.—The number of border patrol agents shall be in-
creased, for each fiscal year beginning with the fiscal year
1996 and ending with the fiscal year 2000, by 1,000 full-
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Title I, Subtitle A
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time equivalent positions above the number of equivalent
positions as of September 30, 1994.
(b) INCREASE IN SUPPORT PERSONNEL.—The number
of full-time support positions for personnel in support of
border enforcement, investigation, detention and deporta-
tion, intelligence, information and records, legal proceed-
ings, and management and administration in the Immigra-
tion and Naturalization Service shall be increased, begin-
ning with fiscal year 1996, by 800 positions above the num-
ber of equivalent positions as of September 30, 1994.
(c) 
DEPLOYMENT
OF
NEW
BORDER
PATROL
AGENTS.—The Attorney General shall, to the maximum ex-
tent practicable, ensure that the border patrol agents hired
pursuant to subsection (a) shall—
(1) be deployed among the various Immigration
and Naturalization Service sectors in proportion to
the level of illegal crossing of the borders of the United
States measured in each sector during the preceding
fiscal year and reasonably anticipated in the next fis-
cal year, and
(2) be actively engaged in law enforcement ac-
tivities related to such illegal crossings.
SEC. 102. IMPROVEMENT OF BARRIERS AT BORDER.
(a) IN GENERAL.—The Attorney General, in consulta-
tion with the Commissioner of the Immigration and Natu-
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ralization Service, shall take such actions as may be nec-
essary to install additional physical barriers and roads (in-
cluding the removal of obstacles to detection of illegal en-
trants) in the vicinity of the United States border to deter
illegal crossings in areas of high illegal entry into the
United States.
(b) CONSTRUCTION OF FENCING AND ROAD IMPROVE-
MENTS IN THE BORDER AREA NEAR SAN DIEGO, CALIFOR-
NIA.—
(1) IN
GENERAL.—In carrying out subsection
(a), the Attorney General shall provide for the con-
struction along the 14 miles of the international land
border of the United States, starting at the Pacific
Ocean and extending eastward, of second and third
fences, in addition to the existing reinforced fence,
and for roads between the fences.
(2) PROMPT ACQUISITION OF NECESSARY EASE-
MENTS.—The Attorney General shall promptly ac-
quire such easements as may be necessary to carry
out this subsection and shall commence construction
of fences immediately following such acquisition (or
conclusion of portions thereof).
(3) AUTHORIZATION
OF
APPROPRIATIONS.—
There are authorized to be appropriated to carry out
this subsection not to exceed $12,000,000. Amounts
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appropriated under this paragraph are authorized to
remain available until expended.
(c) WAIVER.—The provisions of the Endangered Spe-
cies Act of 1973 are waived to the extent the Attorney Gen-
eral determines necessary to assure expeditious construction
of the barriers and roads under this section.
(d) FORWARD DEPLOYMENT.—
(1) IN GENERAL.—The Attorney General shall
forward deploy existing border patrol agents in those
areas of the border identified as areas of high illegal
entry into the United States in order to provide a
uniform and visible deterrent to illegal entry on a
continuing basis.
(2) REPORT.—By not later than 6 months after
the date of the enactment of this Act, the Attorney
General shall submit to the appropriate committees of
Congress a report on the progress and effectiveness of
such forward deployments.
SEC. 103. IMPROVED BORDER EQUIPMENT AND TECH-
NOLOGY.
The Attorney General is authorized to acquire and uti-
lize, for the purpose of detection, interdiction, and reduction
of illegal immigration into the United States, any Federal
equipment (including fixed wing aircraft, helicopters, four-
wheel drive vehicles, sedans, night vision goggles, night vi-
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Title I, Subtitle A
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sion scopes, and sensor units) determined available for
transfer by any other agency of the Federal Government
upon request of the Attorney General.
SEC. 104. IMPROVEMENT IN BORDER CROSSING IDENTI-
FICATION CARD.
(a) IN
GENERAL.—Section 101(a)(6) (8 U.S.C.
1101(a)(6)) is amended by adding at the end the following:
‘‘Such regulations shall provide that (A) each such docu-
ment include a biometric identifier (such as the fingerprint
or handprint of the alien) that is machine readable and
(B) an alien presenting a border crossing identification
card is not permitted to cross over the border into the
United States unless the biometric identifier contained on
the card matches the appropriate biometric characteristic
of the alien.’’.
(b) EFFECTIVE DATES.—
(1) Clause (A) of the sentence added by the
amendment made by subsection (a) shall apply to
documents issued on or after 6 months after the date
of the enactment of this Act.
(2) Clause (B) of such sentence shall apply to
cards presented on or after 3 years after the date of
the enactment of this Act.
(c) REPORT.—Not later than one year after the imple-
mentation of clause (A) of the sentence added by the amend-
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ment made by subsection (a) the Attorney General shall sub-
mit to Congress a report on the impact of such clause on
border crossing activities.
SEC. 105. CIVIL PENALTIES FOR ILLEGAL ENTRY.
(a) IN GENERAL.—Section 275 (8 U.S.C. 1325) is
amended—
(1) by redesignating subsections (b) and (c) as
subsections (c) and (d), respectively, and
(2) by inserting after subsection (a) the following
new subsection:
‘‘(b) Any alien who is apprehended while entering (or
attempting to enter) the United States at a time or place
other than as designated by immigration officers shall be
subject to a civil penalty of—
‘‘(1) at least $50 and not more than $250 for
each such entry (or attempted entry), or
‘‘(2) twice the amount specified in paragraph (1)
in the case of an alien who has been previously sub-
ject to a civil penalty under this subsection.
Civil penalties under this subsection are in addition to, and
not in lieu of, any criminal or other civil penalties that
may be imposed.’’.
(b) EFFECTIVE DATE.—The amendments made by sub-
section (a) shall apply to illegal entries or attempts to enter
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occurring on or after the first day of the sixth month begin-
ning after the date of the enactment of this Act.
SEC. 106. PROSECUTION OF ALIENS REPEATEDLY REENTER-
ING THE UNITED STATES UNLAWFULLY.
(a) AUTHORIZATION OF APPROPRIATIONS.—There are
authorized to be appropriated to the Attorney General such
sums as may be necessary to provide for detention and pros-
ecution of each alien who commits an act that constitutes
a violation of section 275(a) of the Immigration and Na-
tionality Act if the alien has committed such an act on two
previous occasions. Funds appropriated pursuant to this
subsection are authorized to remain available until ex-
pended.
(b) SENSE OF CONGRESS.—It is the sense of Congress
that the Attorney General should use available resources to
assure detention and prosecution of aliens in the cases de-
scribed in subsection (a).
SEC. 107. INSERVICE TRAINING FOR THE BORDER PATROL.
(a) REQUIREMENT.—Section 103 (8 U.S.C. 1103) is
amended by adding at the end the following new subsection:
‘‘(e)(1) The Attorney General shall continue to provide
for such programs (including intensive language training
programs) of inservice training for full-time and part-time
personnel of the Border Patrol in contact with the public
as will familiarize the personnel with the rights and varied
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Title I, Subtitle B
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cultural backgrounds of aliens and citizens in order to en-
sure and safeguard the constitutional and civil rights, per-
sonal safety, and human dignity of all individuals, aliens
as well as citizens, within the jurisdiction of the United
States with whom such personnel have contact in their
work.
‘‘(2) The Attorney General shall provide that the an-
nual report of the Service include a description of steps
taken to carry out paragraph (1).’’.
(b) AUTHORIZATION OF APPROPRIATIONS.—There are
authorized to be appropriated to the Attorney General such
sums as may be necessary for fiscal year 1996 to carry out
the inservice training described in section 103(e)(1) of the
Immigration and Nationality Act. The funds appropriated
pursuant to this subsection are authorized to remain avail-
able until expended.
Subtitle B—Pilot Programs
SEC. 111. PILOT PROGRAM ON INTERIOR REPATRIATION.
(a) ESTABLISHMENT.—Not later than 120 days after
the date of the enactment of this Act, the Attorney General,
after consultation with the Secretary of State, shall estab-
lish a pilot program for up to 2 years which provides for
methods to deter multiple illegal entries by aliens into the
United States. The pilot program may include the develop-
ment and use of interior repatriation, third country repa-
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Title I, Subtitle B
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triation, and other disincentives for multiple illegal entries
into the United States.
(b) REPORT.—Not later than 30 months after the date
of the enactment of this Act, the Attorney General, together
with the Secretary of State, shall submit a report to the
Committees on the Judiciary of the House of Representa-
tives and of the Senate on the operation of the pilot pro-
gram under this section and whether the pilot program or
any part thereof should be extended or made permanent.
SEC. 112. PILOT PROGRAM ON USE OF CLOSED MILITARY
BASES FOR THE DETENTION OF INADMIS-
SIBLE OR DEPORTABLE ALIENS.
(a) ESTABLISHMENT.—The Attorney General and the
Secretary of Defense shall establish one or more pilot pro-
grams for up to 2 years each to determine the feasibility
of the use of military bases available because of actions
under a base closure law as detention centers by the Immi-
gration and Naturalization Service.
(b) REPORT.—Not later than 30 months after the date
of the enactment of this Act, the Attorney General, together
with the Secretary of State, shall submit a report to the
Committees on the Judiciary of the House of Representa-
tives and of the Senate, and the Committees on Armed Serv-
ices of the House of Representatives and of the Senate, on
the feasibility of using military bases closed under a base
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Title I, Subtitle B
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closure law as detention centers by the Immigration and
Naturalization Service.
(c) DEFINITION.—For purposes of this section, the
term ‘‘base closure law’’ means each of the following:
(1) The Defense Base Closure and Realignment
Act of 1990 (part A of title XXIX of Public Law 101–
510; 10 U.S.C. 2687 note).
(2) Title II of the Defense Authorization Amend-
ments and Base Closure and Realignment Act (Public
Law 100–526; 10 U.S.C. 2687 note).
(3) Section 2687 of title 10, United States Code.
(4) Any other similar law enacted after the date
of the enactment of this Act.
SEC. 113. PILOT PROGRAM TO COLLECT RECORDS OF DE-
PARTING PASSENGERS.
(a) ESTABLISHMENT.—The Commissioner of the Im-
migration and Naturalization Service shall, within 180
days after the date of the enactment of this Act, establish
a pilot program in which officers of the Service collect a
record of departure for every alien departing the United
States and match the records of departure with the record
of the alien’s arrival in the United States. The program
shall be operated in as many air ports of entry as is deemed
appropriate, but at no less than 3 of the 5 air ports of entry
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with the heaviest volume of incoming traffic from foreign
territories.
(b) REPORT.—
(1) DEADLINE.—The Commissioner shall submit
a report to Congress not later than 2 years after the
date the pilot program is implemented under sub-
section (a).
(2) INFORMATION.—The report shall include the
following information for each participating port of
entry:
(A) The number of departure records col-
lected, with an accounting by country of nation-
ality of the departing alien.
(B) The number of departure records that
were successfully matched to records of the alien’s
prior arrival in the United States, with an ac-
counting by the alien’s country of nationality
and by the alien’s classification as an immi-
grant or nonimmigrant.
(C) The number of aliens who arrived at the
port of entry as nonimmigrants, or as a visitor
under the visa waiver program under section
217 of the Immigration and Nationality Act, for
whom no matching departure record has been ob-
tained through the pilot program or through
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Title I, Subtitle C
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other means, with an accounting by the alien’s
country of nationality and date of arrival in the
United States.
(D) The estimated cost of establishing a na-
tional system to verify the departure from the
United States of aliens admitted temporarily as
nonimmigrants.
(3) RECOMMENDATIONS.—The report also shall
include specific recommendations for implementation
of the pilot program on a permanent basis.
(c) USE OF INFORMATION ON VISA OVERSTAYS.—In-
formation on instances of visa overstay identified through
the pilot program shall be integrated into appropriate data
bases of the Immigration and Naturalization Service and
the Department of State, including those used at ports of
entry and at consular offices.
Subtitle C—Interior Enforcement
SEC. 121. INCREASE IN PERSONNEL FOR INTERIOR EN-
FORCEMENT.
Subject to the availability of appropriations, the Attor-
ney General shall provide for an increase in the number
of investigators and enforcement personnel of the Immigra-
tion and Naturalization Service who are deployed in the
interior so that the number of such personnel is adequate
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Title II, Subtitle A
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properly to investigate violations of, and to enforce, immi-
gration laws.
TITLE II—ENHANCED ENFORCE-
MENT 
AND 
PENALTIES
AGAINST ALIEN SMUGGLING;
DOCUMENT FRAUD
Subtitle A—Enhanced Enforcement
and 
Penalties 
Against 
Alien
Smuggling
SEC. 201. WIRETAP AUTHORITY FOR ALIEN SMUGGLING IN-
VESTIGATIONS.
Section 2516(1) of title 18, United States Code, is
amended—
(1) by striking ‘‘and’’ at the end of paragraph
(n),
(2) by redesignating paragraph (o) as paragraph
(p), and
(3) by inserting after paragraph (n) the follow-
ing new paragraph:
‘‘(o)(1) a felony violation of section 1028 (relat-
ing to production of false identification documenta-
tion), section 1541 (relating to passport issuance
without authority), section 1542 (relating to false
statements in passport applications), section 1543
(relating to forgery or false use of passport), section
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Title II, Subtitle A
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1544 (relating to misuse of passport), section 1546
(relating to fraud or misuse of visas, permits, or other
documents) of this title; or
‘‘(2) a violation of section 274, 277, or 278 of the
Immigration and Nationality Act (relating to the
smuggling of aliens); or’’.
SEC. 202. RACKETEERING OFFENSES RELATING TO ALIEN
SMUGGLING.
Section 1961(1) of title 18, United States Code, is
amended—
(1) by inserting ‘‘section 1028 (relating to fraud
and related activity in connection with identification
documents),’’ before ‘‘section 1029’’;
(2) by inserting ‘‘section 1542 (relating to false
statement in application and use of passport), section
1543 (relating to forgery or false use of passport), sec-
tion 1544 (relating to misuse of passport), section
1546 (relating to fraud and misuse of visas, permits,
and other documents), sections 1581–1588 (relating to
peonage and slavery),’’ after ‘‘section 1513 (relating
to retaliating against a witness, victim, or an inform-
ant),’’;
(3) by striking ‘‘or’’ before ‘‘(E)’’; and
(4) by inserting before the period at the end the
following: ‘‘, or (F) any act which is indictable under
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the Immigration and Nationality Act, section 274
(relating to bringing in and harboring certain
aliens), section 277 (relating to aiding or assisting
certain aliens to enter the United States), or section
278 (relating to importation of alien for immoral
purpose)’’.
SEC. 203. INCREASED CRIMINAL PENALTIES FOR ALIEN
SMUGGLING.
(a) IN
GENERAL.—Section 274(a)(1) (8 U.S.C.
1324(a)(1)) is amended—
(1) in subparagraph (B)(i), by inserting ‘‘or in
the case of a violation of subparagraph (A)(ii), (iii),
or (iv) in which the offense was done for the purpose
of commercial advantage or private financial gain’’
after ‘‘subparagraph (A)(i)’’, and
(2) by adding at the end the following new sub-
paragraph:
‘‘(C) Any person who engages in any conspiracy to
commit, or aids or abets the commission of, any of the acts
described in—
‘‘(i) subparagraph (A)(i) shall be fined under
title 18, United States Code, imprisoned not more
than 10 years, or both; or
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‘‘(ii) clause (ii), (iii), or (iv) of subparagraph
(A) shall be fined under title 18, United States Code,
imprisoned not more than 5 years, or both.’’.
(b) SMUGGLING
OF ALIENS WHO WILL COMMIT
CRIMES.—Section 274(a)(2) (8 U.S.C. 1324(a)(2)) is
amended—
(1) in subparagraph (B)—
(A) by striking ‘‘or’’ at the end of clause
(ii),
(B) by adding ‘‘or’’ at the end of clause
(iii), and
(C) by inserting after clause (iii) the follow-
ing:
‘‘(iv) an offense committed with the in-
tent or with reason to believe that the alien
unlawfully brought into the United States
will commit an offense against the United
States or any State punishable by impris-
onment for more than 1 year,’’; and
(2) by striking ‘‘be fined’’ and all that follows
through the final period at the end and inserting the
following: ‘‘be fined under title 18, United States
Code, and shall be imprisoned not less than 3 years
or more than 10 years.’’.
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(c) APPLYING CERTAIN PENALTIES ON A PER ALIEN
BASIS.—Section 274(a)(2) (8 U.S.C. 1324(a)(2)) is amend-
ed by striking ‘‘for each transaction constituting a violation
of this paragraph, regardless of the number of aliens in-
volved’’ and inserting ‘‘for each alien in respect to whom
a violation of this paragraph occurs’’.
SEC. 204. INCREASED NUMBER OF ASSISTANT UNITED
STATES ATTORNEYS.
(a) IN GENERAL.—The number of Assistant United
States Attorneys employed by the Department of Justice for
the fiscal year 1996 shall be increased by 25 above the num-
ber of Assistant United States Attorneys that were author-
ized to be employed as of September 30, 1994.
(b) ASSIGNMENT.—Individuals employed to fill the ad-
ditional positions described in subsection (a) shall be spe-
cially trained to be used for the prosecution of persons who
bring into the United States or harbor illegal aliens, fraud,
and other criminal statutes involving illegal aliens.
SEC. 205. UNDERCOVER INVESTIGATION AUTHORITY.
(a) IN GENERAL.—Title II is amended by adding at
the end the following new section:
‘‘UNDERCOVER INVESTIGATION AUTHORITY
‘‘SEC. 294. (a) IN GENERAL.—With respect to any un-
dercover investigative operation of the Service which is nec-
essary for the detection and prosecution of crimes against
the United States—
449
Title II, Subtitle A
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‘‘(1) sums appropriated for the Service may be
used for leasing space within the United States and
the territories and possessions of the United States
without regard to the following provisions of law:
‘‘(A) section 3679(a) of the Revised Statutes
(31 U.S.C. 1341),
‘‘(B) section 3732(a) of the Revised Statutes
(41 U.S.C. 11(a)),
‘‘(C) section 305 of the Act of June 30, 1949
(63 Stat. 396; 41 U.S.C. 255),
‘‘(D) the third undesignated paragraph
under the heading ‘Miscellaneous’ of the Act of
March 3, 1877 (19 Stat. 370; 40 U.S.C. 34),
‘‘(E) section 3648 of the Revised Statutes
(31 U.S.C. 3324),
‘‘(F) section 3741 of the Revised Statutes
(41 U.S.C. 22), and
‘‘(G) subsections (a) and (c) of section 304
of the Federal Property and Administrative
Services Act of 1949 (63 Stat. 395; 41 U.S.C.
254 (a) and (c));
‘‘(2) sums appropriated for the Service may be
used to establish or to acquire proprietary corpora-
tions or business entities as part of an undercover op-
eration, and to operate such corporations or business
450
Title II, Subtitle A
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entities on a commercial basis, without regard to the
provisions of section 304 of the Government Corpora-
tion Control Act (31 U.S.C. 9102);
‘‘(3) sums appropriated for the Service, and the
proceeds from the undercover operation, may be de-
posited in banks or other financial institutions with-
out regard to the provisions of section 648 of title 18,
United States Code, and of section 3639 of the Re-
vised Statutes (31 U.S.C. 3302); and
‘‘(4) the proceeds from the undercover operation
may be used to offset necessary and reasonable ex-
penses incurred in such operation without regard to
the provisions of section 3617 of the Revised Statutes
(31 U.S.C. 3302).
The authority set forth in this subsection may be exercised
only upon written certification of the Commissioner, in
consultation with the Deputy Attorney General, that any
action authorized by paragraph (1), (2), (3), or (4) is nec-
essary for the conduct of the undercover operation.
‘‘(b) DISPOSITION
OF PROCEEDS NO LONGER RE-
QUIRED.—As soon as practicable after the proceeds from an
undercover investigative operation, carried out under para-
graphs (3) and (4) of subsection (a), are no longer necessary
for the conduct of the operation, the proceeds or the balance
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of the proceeds remaining at the time shall be deposited into
the Treasury of the United States as miscellaneous receipts.
‘‘(c) DISPOSITION OF CERTAIN CORPORATIONS AND
BUSINESS ENTITIES.—If a corporation or business entity
established or acquired as part of an undercover operation
under paragraph (2) of subsection (a) with a net value of
over $50,000 is to be liquidated, sold, or otherwise disposed
of, the Service, as much in advance as the Commissioner
or Commissioner’s designee determines practicable, shall re-
port the circumstances to the Attorney General, the Director
of the Office of Management and Budget, and the Comptrol-
ler General. The proceeds of the liquidation, sale, or other
disposition, after obligations are met, shall be deposited in
the Treasury of the United States as miscellaneous receipts.
‘‘(d) FINANCIAL AUDITS.—The Service shall conduct
detailed financial audits of closed undercover operations on
a quarterly basis and shall report the results of the audits
in writing to the Deputy Attorney General.’’.
(b) CLERICAL AMENDMENT.—The table of contents is
amended by inserting after the item relating to section 293
the following:
‘‘Sec. 294. Undercover investigation authority.’’.
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Title II, Subtitle B
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Subtitle B—Deterrence of Document
Fraud
SEC. 211. INCREASED CRIMINAL PENALTIES FOR FRAUDU-
LENT USE OF GOVERNMENT-ISSUED DOCU-
MENTS.
(a) FRAUD
AND MISUSE
OF GOVERNMENT-ISSUED
IDENTIFICATION DOCUMENTS.—Section 1028(b) of title 18,
United States Code, is amended—
(1) in paragraph (1), by inserting ‘‘except as
provided in paragraphs (3) and (4),’’ after ‘‘(1)’’ and
by striking ‘‘five years’’ and inserting ‘‘15 years’’;
(2) in paragraph (2), by inserting ‘‘except as
provided in paragraphs (3) and (4),’’ after ‘‘(2)’’ and
by striking ‘‘and’’ at the end;
(3) by redesignating paragraph (3) as para-
graph (5); and
(4) by inserting after paragraph (2) the follow-
ing new paragraphs:
‘‘(3) a fine under this title or imprisonment for
not more than 20 years, or both, if the offense is com-
mitted to facilitate a drug trafficking crime (as de-
fined in section 929(a)(2) of this title);
‘‘(4) a fine under this title or imprisonment for
not more than 25 years, or both, if the offense is com-
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Title II, Subtitle B
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mitted to facilitate an act of international terrorism
(as defined in section 2331(1) of this title); and’’.
(b) CHANGES TO THE SENTENCING LEVELS.—Pursu-
ant to section 944 of title 28, United States Code, and sec-
tion 21 of the Sentencing Act of 1987, the United States
Sentencing Commission shall promulgate guidelines, or
amend existing guidelines, relating to defendants convicted
of violating, or conspiring to violate, sections 1546(a) and
1028(a) of title 18, United States Code. The basic offense
level under section 2L2.1 of the United States Sentencing
Guidelines shall be increased to—
(1) not less than offense level 15 if the offense in-
volves 100 or more documents;
(2) not less than offense level 20 if the offense in-
volves 1,000 or more documents, or if the documents
were used to facilitate any other criminal activity de-
scribed in section 212(a)(2)(A)(i)(II) of the Immigra-
tion and Nationality Act (8 U.S.C. 1182(a)(A)(i)(II))
or in section 101(a)(43) of such Act; and
(3) not less than offense level 25 if the offense in-
volves—
(A) the provision of documents to a person
known or suspected of engaging in a terrorist ac-
tivity (as such terms are defined in section
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Title II, Subtitle B
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212(a)(3)(B) of the Immigration and National-
ity Act (8 U.S.C. 1182(a)(3)(B));
(B) the provision of documents to facilitate
a terrorist activity or to assist a person to en-
gage in terrorist activity (as such terms are de-
fined in section 212(a)(3)(B) of the Immigration
and Nationality Act (8 U.S.C. 1182(a)(3)(B));
or
(C) the provision of documents to persons
involved in racketeering enterprises (described in
section 1952(a) of title 18, United States Code).
SEC. 212. NEW CIVIL PENALTIES FOR DOCUMENT FRAUD.
(a) ACTIVITIES PROHIBITED.—Section 274C(a) (8
U.S.C. 1324c(a)) is amended—
(1) by striking ‘‘or’’ at the end of paragraph (3);
(2) by striking the period at the end of para-
graph (4) and inserting ‘‘, or’’; and
(3) by adding at the end the following:
‘‘(5) in reckless disregard of the fact that the in-
formation is false or does not relate to the applicant,
to prepare, to file, or to assist another in preparing
or filing, documents which are falsely made for the
purpose of satisfying a requirement of this Act.
For purposes of this section, the term ‘falsely made’ in-
cludes, with respect to a document or application, the prep-
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Title II, Subtitle B
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aration or provision of the document or application with
knowledge or in reckless disregard of the fact that such docu-
ment contains a false, fictitious, or fraudulent statement or
material representation, or has no basis in law or fact, or
otherwise fails to state a material fact pertaining to the
document or application.’’.
(b) CONFORMING
AMENDMENTS
FOR
CIVIL
PEN-
ALTIES.—Section 274C(d)(3) (8 U.S.C. 1324c(d)(3)) is
amended by striking ‘‘each document used, accepted, or cre-
ated and each instance of use, acceptance, or creation’’ both
places it appears and inserting ‘‘each instance of a viola-
tion under subsection (a)’’.
(c) EFFECTIVE DATES.—(1) The amendments made by
subsection (a) shall apply to the preparation or filing of
documents, and assistance in such preparation or filing,
occurring on or after the date of the enactment of this Act.
(2) The amendment made by subsection (b) shall apply
to violations occurring on or after the date of the enactment
of this Act.
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Title II, Subtitle B
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SEC. 213. NEW CIVIL PENALTY FOR FAILURE TO PRESENT
DOCUMENTS AND FOR PREPARING IMMIGRA-
TION 
DOCUMENTS 
WITHOUT 
AUTHORIZA-
TION.
(a) IN
GENERAL.—Section 274C(a) (8 U.S.C.
1324c(a)), as amended by section 212(a), is further amend-
ed—
(1) by striking ‘‘or’’ at the end of paragraph (4);
(2) by striking the period at the end of para-
graph (5) and inserting a comma; and
(3) by inserting after paragraph (5) the follow-
ing new paragraphs:
‘‘(6) to present before boarding a common carrier
for the purpose of coming to the United States a docu-
ment which relates to the alien’s eligibility to enter
the United States and to fail to present such docu-
ment to an immigration officer upon arrival at a
United States port of entry, or
‘‘(7) to prepare or assist in the preparation and
submission of immigration forms, petitions, and ap-
plications if the person or entity is not authorized to
represent aliens, or to prepare or assist in the prepa-
ration and submission of such forms, petitions, and
applications pursuant to regulations promulgated by
the Attorney General.’’; and
(4) by adding at the end the following:
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Title II, Subtitle B
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‘‘The Attorney General may, in the discretion of the Attor-
ney General, waive the penalties of this section with respect
to an alien who knowingly violates paragraph (6) if the
alien is granted asylum under section 208 or withholding
of deportation under section 243(h).’’.
(b) EFFECTIVE DATE.—The amendments made by sub-
section (a) shall apply to individuals who board a common
carrier on or after 30 days after the date of the enactment
of this Act.
SEC. 214. NEW CRIMINAL PENALTIES FOR FAILURE TO DIS-
CLOSE ROLE AS PREPARER OF FALSE APPLI-
CATION FOR ASYLUM AND FOR PREPARING
CERTAIN POST-CONVICTION APPLICATIONS.
Section 274C (8 U.S.C. 1324c) is amended by adding
at the end the following new subsection:
‘‘(e) CRIMINAL PENALTIES
FOR FAILURE TO DIS-
CLOSE ROLE AS DOCUMENT PREPARER.—
‘‘(1) If a person is required by law or regulation
to disclose the fact that the person, on behalf of an-
other person and for a fee or other remuneration, has
prepared or assisted in preparing an application for
asylum pursuant to section 208, or the regulations
promulgated thereunder, and the person knowingly
and willfully fails to disclose, conceals, or covers up
458
Title II, Subtitle B
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such fact, and the application was falsely made, the
person shall—
‘‘(A) be imprisoned for not less than 2 nor
more than 5 years, fined in accordance with title
18, United States Code, or both, and
‘‘(B) be prohibited from preparing or assist-
ing in preparing, regardless of whether for a fee
or other remuneration, any other such applica-
tion for a period of at least 5 years and not
more than 15 years.
‘‘(2) Whoever, having been convicted of a viola-
tion of paragraph (1), knowingly and willfully pre-
pares or assists in preparing an application for asy-
lum pursuant to section 208, or the regulations pro-
mulgated thereunder, regardless of whether for a fee or
other remuneration, in violation of paragraph (1)(B)
shall be imprisoned for not less than 5 years or more
than 15 years, fined in accordance with title 18,
United States Code, or both, and prohibited from pre-
paring or assisting in preparing any other such ap-
plication.’’.
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Title II, Subtitle B
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SEC. 215. CRIMINAL PENALTY FOR KNOWINGLY PRESENT-
ING DOCUMENT WHICH FAILS TO CONTAIN
REASONABLE BASIS IN LAW OR FACT.
The fourth paragraph of section 1546(a) of title 18,
United States Code, is amended by striking ‘‘containing
any such false statement’’ and inserting ‘‘which contains
any such false statement or which fails to contain any rea-
sonable basis in law or fact’’.
SEC. 216. CRIMINAL PENALTIES FOR FALSE CLAIM TO CITI-
ZENSHIP.
Section 1015 of title 18, United States Code, is amend-
ed—
(1) by striking the dash at the end of paragraph
(d) and inserting ‘‘; or’’, and
(2) by inserting after paragraph (d) the follow-
ing:
‘‘(e) Whoever knowingly makes any false statement or
claim that he is, or at any time has been, a citizen or na-
tional of the United States, with the intent to obtain on
behalf of himself, or any other person, any Federal benefit
or service, or to engage unlawfully in employment in the
United States; or
‘‘(f) Whoever knowingly makes any false statement or
claim that he is a citizen of the United States in order to
register to vote or to vote in any Federal, State, or local
460
Title II, Subtitle C
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election
(including
an
initiative,
recall,
or
referen-
dum)—’’.
Subtitle C—Asset Forfeiture for
Passport and Visa Offenses
SEC. 221. CRIMINAL FORFEITURE FOR PASSPORT AND VISA
RELATED OFFENSES.
Section 982 of title 18, United States Code, is amend-
ed—
(1) in subsection (a), by inserting after para-
graph (5) the following new paragraph:
‘‘(6) The court, in imposing sentence on a person con-
victed of a violation of, or conspiracy to violate, section
1541, 1542, 1543, 1544, or 1546 of this title, or a violation
of, or conspiracy to violate, section 1028 of this title if com-
mitted in connection with passport or visa issuance or use,
shall order that the person forfeit to the United States any
property, real or personal, which the person used, or in-
tended to be used, in committing, or facilitating the com-
mission of, the violation, and any property constituting, or
derived from, or traceable to, any proceeds the person ob-
tained, directly or indirectly, as a result of such violation.’’,
and
(2) in subsection (b)(1)(B), by inserting ‘‘or
(a)(6)’’ after ‘‘(a)(2)’’.
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Title III, Subtitle A
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SEC. 222. SUBPOENAS FOR BANK RECORDS.
Section 986(a) of title 18, United States Code, is
amended by inserting ‘‘1028, 1541, 1542, 1543, 1544,
1546,’’ before ‘‘1956’’.
SEC. 223. EFFECTIVE DATE.
The amendments made by this subtitle shall take effect
on the first day of the first month that begins more than
90 days after the date of the enactment of this Act.
TITLE III—INSPECTION, APPRE-
HENSION, DETENTION, ADJU-
DICATION, AND REMOVAL OF
INADMISSIBLE AND DEPORT-
ABLE ALIENS
Subtitle A—Revision of Procedures
for Removal of Aliens
SEC. 300. OVERVIEW OF CHANGES IN REMOVAL PROCE-
DURES.
This subtitle amends the provisions of the Immigration
and Nationality Act relating to procedures for inspection,
exclusion, and deportation of aliens so as to provide for the
following:
(1) EXPEDITED REMOVAL FOR UNDOCUMENTED
ALIENS.—Aliens arriving without valid documents
are subject to an expedited removal process, without
an evidentiary hearing and subject to strictly limited
judicial review.
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Title III, Subtitle A
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(2) NO REWARD FOR ILLEGAL ENTRANTS OR VISA
OVERSTAYERS.—Aliens who enter illegally or who
overstay the period of authorized admission will have
a greater burden of proof in removal proceedings and
will face tougher standards for most discretionary im-
migration benefits, such as suspension of removal and
work authorization.
(3) STRICTER STANDARDS TO ASSURE DETEN-
TION OF ALIENS.—There are more stringent standards
for the release of aliens (particularly aliens convicted
of aggravated felonies) during and after removal pro-
ceedings.
(4) SIMPLIFIED, SINGLE REMOVAL PROCEEDING
(IN PLACE OF SEPARATE EXCLUSION AND DEPORTA-
TION
PROCEEDINGS).—The procedures for exclusion
and deportation are consolidated into a simpler, sin-
gle procedure for removal of inadmissible and deport-
able aliens.
(5) STREAMLINED JUDICIAL REVIEW.—Judicial
review is streamlined through removing a layer of re-
view in exclusion cases, shortening the time period to
file for review, and permitting the removal of inad-
missible aliens pending the review.
(6) INCREASED PENALTIES TO ASSURE REMOVAL
AND PREVENT FURTHER REENTRY.—Aliens who are
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Title III, Subtitle A
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ordered removed are subject to civil money penalties
for failure to depart on time and if they seek reentry
they are subject to immediate removal under the prior
order.
(7) PROTECTION OF APPLICANTS FOR ASYLUM.—
Throughout the process, the procedures protect those
aliens who present credible claims for asylum by giv-
ing them an opportunity for a full hearing on their
claims.
(8) REORGANIZATION.—The provisions of the Act
are reorganized to provide a more logical progression
from arrival and inspection through proceedings and
removal.
SEC. 301. TREATING PERSONS PRESENT IN THE UNITED
STATES WITHOUT AUTHORIZATION AS NOT
ADMITTED.
(a) ‘‘ADMISSION’’ DEFINED.—Paragraph (13) of sec-
tion 101(a) (8 U.S.C. 1101(a)) is amended to read as fol-
lows:
‘‘(13)(A) The terms ‘admission’ and ‘admitted’ mean,
with respect to an alien, the entry of the alien into the
United States after inspection and authorization by an im-
migration officer.
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Title III, Subtitle A
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‘‘(B) An alien who is paroled under section 212(d)(5)
or permitted to land temporarily as an alien crewman shall
not be considered to have been admitted.
‘‘(C) An alien lawfully admitted for permanent resi-
dence in the United States shall not be regarded as seeking
an admission into the United States for purposes of the im-
migration laws unless the alien—
‘‘(i) has abandoned or relinquished that status,
‘‘(ii) has engaged in illegal activity after having
departed the United States,
‘‘(iii) has departed from the United States while
under legal process seeking removal of the alien from
the United States, including removal proceedings
under this Act and extradition proceedings,
‘‘(iv) has been convicted of an aggravated felony,
unless since such conviction the alien has been grant-
ed relief under section 240A(a), or
‘‘(v) is attempting to enter at a time or place
other than as designated by immigration officers or
has not been admitted to the United States after in-
spection and authorization by an immigration offi-
cer.’’.
(b) INADMISSIBILITY OF ALIENS PRESENT WITHOUT
ADMISSION OR PAROLE.—
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Title III, Subtitle A
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(1) IN
GENERAL.—Section 212(a) (8 U.S.C.
1182(a)) is amended by redesignating paragraph (9)
as paragraph (10) and by inserting after paragraph
(8) the following new paragraph:
‘‘(9) PRESENT
WITHOUT
ADMISSION
OR
PA-
ROLE.—
‘‘(A) IN GENERAL.—An alien present in the
United States without being admitted or paroled,
or who arrives in the United States at any time
or place other than as designated by the Attorney
General, is inadmissible.
‘‘(B) EXCEPTION FOR CERTAIN BATTERED
WOMEN
AND
CHILDREN.—Subparagraph (A)
shall not apply to an alien who can demonstrate
that—
‘‘(i) the alien qualifies for immigrant
status 
under 
subparagraphs 
(A)(iii),
(A)(iv), (B)(ii), or (B)(iii) of section
204(a)(1),
‘‘(ii)(I) the alien has been battered or
subject to extreme cruelty by a spouse or
parent, or by a member of the spouse’s or
parent’s family residing in the same house-
hold as the alien and the spouse or parent
consented or acquiesced to such battery or
466
Title III, Subtitle A
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cruelty, or (II) the alien’s child has been
battered or subject to extreme cruelty by a
spouse or parent of the alien (without the
active participation of the alien in the bat-
tery or extreme cruelty) or by a member of
the spouse’s or parent’s family residing in
the same household as the alien when the
spouse or parent consented to or acquiesced
in such battery or cruelty and the alien did
not actively participate in such battery or
cruelty, and
‘‘(iii) there was a substantial connec-
tion between the battery or cruelty described
in subclause (I) or (II) and the alien’s un-
lawful entry into the United States.’’.
(2) TRANSITION
FOR
BATTERED
SPOUSE
OR
CHILD PROVISION.—The requirements of clauses (ii)
and (iii) of section 212(a)(9)(B) of the Immigration
and Nationality Act, as inserted by paragraph (1),
shall not apply to an alien who demonstrates that the
alien first arrived in the United States before the title
III–A effective date (described in section 309(a)).
(c) REVISION TO GROUND OF INADMISSIBILITY FOR IL-
LEGAL ENTRANTS
AND IMMIGRATION VIOLATORS.—Sub-
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Title III, Subtitle A
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paragraphs (A) and (B) of section 212(a)(6) (8 U.S.C.
1182(a)(6)) are amended to read as follows:
‘‘(A) ALIENS PREVIOUSLY REMOVED.—
‘‘(i) ARRIVING
ALIENS.—Any alien
who has been ordered removed under section
235(b)(1) or at the end of proceedings under
section 240 initiated upon the alien’s arriv-
al in the United States and who again seeks
admission within 5 years of the date of such
removal is inadmissible.
‘‘(ii) OTHER ALIENS.—Any alien not
described in clause (i) who has been ordered
removed under section 240 or any other
provision of law and who again seeks ad-
mission within 10 years of the date of such
removal (or at any time in the case of an
alien convicted of an aggravated felony) is
inadmissible.
‘‘(iii) EXCEPTION.—Clauses (i) and
(ii) shall not apply to an alien seeking ad-
mission within a period if, prior to the
alien’s reembarkation at a place outside the
United States or attempt to be admitted
from foreign contiguous territory, the Attor-
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Title III, Subtitle A
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ney General has consented to the alien’s
reapplying for admission.
‘‘(B) ALIENS
PRESENT
UNLAWFULLY
FOR
MORE THAN 1 YEAR.—
‘‘(i) IN GENERAL.—Any alien who was
unlawfully present in the United States for
an aggregate period totaling 1 year is inad-
missible unless the alien has remained out-
side the United States for a period of 10
years.
‘‘(ii) EXCEPTIONS.—
‘‘(I) MINORS.—No period of time
in which an alien is under 18 years of
age shall be taken into account in de-
termining the period of unlawful pres-
ence in the United States under clause
(i).
‘‘(II) ASYLEES.—No period of
time in which an alien has a bona fide
application for asylum pending under
section 208 shall be taken into account
in determining the period of unlawful
presence in the United States under
clause (i).
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Title III, Subtitle A
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‘‘(III) ALIENS
WITH
WORK
AU-
THORIZATION.—No period of time in
which an alien is provided authoriza-
tion to engage in employment in the
United States (including such an au-
thorization 
under 
section
244A(a)(1)(B)), or in which the alien
is the spouse of such an alien, shall be
taken into account in determining the
period of unlawful presence in the
United States under clause (i).
‘‘(IV) FAMILY UNITY.—No period
of time in which the alien is a bene-
ficiary of family unity protection pur-
suant to section 301 of the Immigra-
tion Act of 1990 shall be taken into ac-
count in determining the period of un-
lawful presence in the United States
under clause (i).
‘‘(V) 
BATTERED
WOMEN
AND
CHILDREN.—Clause (i) shall not apply
to an alien described in paragraph
(9)(B).
‘‘(iii) EXTENSION.—The Attorney Gen-
eral may extend the period of 1 year under
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Title III, Subtitle A
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clause (i) to a period of 15 months in the
case of an alien who applies to the Attorney
General (before the alien has been present
unlawfully in the United States for a period
totaling 1 year) and establishes to the satis-
faction of the Attorney General that—
‘‘(I) the alien is not inadmissible
under clause (i) at the time of the ap-
plication, and
‘‘(II) the failure to extend such pe-
riod would constitute an extreme hard-
ship for the alien.
‘‘(iv) WAIVER.—In the case of an alien
who is the spouse, parent, or child of a
United States citizen or the spouse or child
of a permanent resident alien, the Attorney
General may waive clause (i) for humani-
tarian purposes, to assure family unity, or
when it is otherwise in the public interest.
‘‘(v) NATIONAL
INTEREST
WAIVER.—
The Attorney General may waive clause (i)
if the Attorney General determines that such
a waiver is necessary to substantially bene-
fit—
471
Title III, Subtitle A
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‘‘(I) the national security, na-
tional defense, or Federal, State, or
local law enforcement;
‘‘(II) health care, housing, or edu-
cational opportunities for an indigent
or low-income population or in an un-
derserved geographical area;
‘‘(III) economic or employment
opportunities for a specific industry or
specific geographical area;
‘‘(IV) the development of new tech-
nologies; or
‘‘(V) environmental protection or
the productive use of natural resources;
and
the alien will engage in a specific undertak-
ing to advance one or more of the interests
identified in subclauses (I) through (V).’’.
(d) WAIVER OF MISREPRESENTATION GROUND OF IN-
ADMISSIBILITY FOR CERTAIN ALIENS.—Subsection (i) of
section 212 is amended to read as follows:
‘‘(i) The Attorney General may, in the discretion of
the Attorney General, waive the application of clause (i)
of subsection (a)(6)(C)—
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‘‘(1) in the case of an immigrant who is the
spouse, son, or daughter of a United States citizen; or
‘‘(2) in the case of an immigrant who is the
spouse or son or daughter of an alien lawfully admit-
ted for permanent residence, if it is established to the
satisfaction of the Attorney General that the refusal of
admission to the United States of such immigrant
alien would result in extreme hardship to the lawfully
resident spouse or parent of such an alien.’’.
(e) PROHIBITION ON ISSUANCE OF VISAS FOR FORMER
CITIZENS
WHO
RENOUNCED
CITIZENSHIP
TO
AVOID
UNITED STATES TAXATION.—Section 212(a)(10) (8 U.S.C.
1182(a)(10)), as redesignated by subsection (b)(1), is
amended by adding at the end the following:
‘‘(D) FORMER CITIZENS WHO RENOUNCED
CITIZENSHIP
TO
AVOID
TAXATION.—Any alien
who is a former citizen of the United States who
officially renounced United States citizenship
and who is determined by the Attorney General
to have renounced United States citizenship for
the purpose of avoiding taxation by the United
States is excludable.’’.
(f) PROOF OF VACCINATION REQUIREMENT FOR IMMI-
GRANTS.—
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(1) IN
GENERAL.—Section 212(a)(1)(A) (8
U.S.C. 1182(a)(1)(A)) is amended—
(A) by redesignating clauses (ii) and (iii)
as clauses (iii) and (iv), respectively, and
(B) by inserting after clause (i) the follow-
ing new clause:
‘‘(ii) who seeks admission as an immi-
grant, or who seeks adjustment of status to
the status of an alien lawfully admitted for
permanent residence, and who has failed to
present documentation of having received
vaccination against vaccine-preventable dis-
eases, which shall include at least the fol-
lowing diseases: mumps, measles, rubella,
polio, tetanus and diphtheria toxoids, per-
tussis, influenza type B and hepatitis B,
and any other vaccinations against vaccine-
preventable diseases recommended by the
Advisory 
Committee 
for 
Immunization
Practices,’’.
(2) WAIVER.—Section 212(g) (8 U.S.C. 1182(g)
is amended by striking ‘‘, or’’ at the end of paragraph
(1) and all that follows and inserting a semicolon and
the following:
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‘‘in accordance with such terms, conditions, and con-
trols, if any, including the giving of bond, as the At-
torney General, in the discretion of the Attorney Gen-
eral after consultation with the Secretary of Health
and Human Services, may by regulation prescribe;
‘‘(2) subsection (a)(1)(A)(ii) in the case of any
alien—
‘‘(A) who receives vaccination against the
vaccine-preventable disease or diseases for which
the alien has failed to present documentation of
previous vaccination, or
‘‘(B) for whom a civil surgeon, medical offi-
cer, or panel physician (as those terms are de-
fined by 42 C.F.R. 34.2) certifies, according to
such regulations as the Secretary of Health and
Human Services may prescribe, that such vac-
cination would not be medically appropriate; or
‘‘(3) subsection (a)(1)(A)(iii) in the case of any
alien, in accordance with such terms, conditions, and
controls, if any, including the giving of bond, as the
Attorney General, in the discretion of the Attorney
General after consultation with the Secretary of
Health and Human Services, may by regulation pre-
scribe.’’.
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(3) EFFECTIVE DATE.—The amendments made
by this subsection shall apply with respect to applica-
tions for immigrant visas or for adjustment of status
filed after September 30, 1996.
(g) ADJUSTMENT IN GROUNDS FOR DEPORTATION.—
Section 241 (8 U.S.C. 1251), before redesignation as section
237 by section 305(a)(2), is amended—
(1) in the matter before paragraph (1) of sub-
section (a), by striking ‘‘in the United States’’ and
inserting ‘‘in and admitted to the United States’’;
(2) in subsection (a)(1), by striking ‘‘EXCLUD-
ABLE’’ each place it appears and inserting ‘‘INADMIS-
SIBLE’’;
(3) in subsection (a)(1)(A), by striking ‘‘exclud-
able’’ and inserting ‘‘inadmissible’’; and
(4) by amending subparagraph (B) of subsection
(a)(1) to read as follows:
‘‘(B) PRESENT IN VIOLATION OF LAW.—Any
alien who is present in the United States in vio-
lation of this Act or any other law of the United
States is deportable.’’.
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SEC. 302. INSPECTION OF ALIENS; EXPEDITED REMOVAL OF
INADMISSIBLE ARRIVING ALIENS; REFERRAL
FOR HEARING (REVISED SECTION 235).
Section 235 (8 U.S.C. 1225) is amended to read as
follows:
‘‘INSPECTION BY IMMIGRATION OFFICERS; EXPEDITED RE-
MOVAL OF INADMISSIBLE ARRIVING ALIENS; REFER-
RAL FOR HEARING
‘‘SEC. 235. (a) INSPECTION.—
‘‘(1) ALIENS TREATED AS APPLICANTS FOR AD-
MISSION.—An alien present in the United States who
has not been admitted, who arrives in the United
States (whether or not at a designated port of arriv-
al), or who is brought to the United States after hav-
ing been interdicted in international or United States
waters shall be deemed for purposes of this Act an ap-
plicant for admission.
‘‘(2) STOWAWAYS.—An arriving alien who is a
stowaway is not eligible to apply for admission or to
be admitted and shall be ordered removed upon in-
spection by an immigration officer. Upon such in-
spection if the alien indicates an intention to apply
for asylum under section 208 or a fear of persecution,
the officer shall refer the alien for an interview under
subsection (b)(1)(B). A stowaway may apply for asy-
lum only if the stowaway is found to have a credible
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fear of persecution under subsection (b)(1)(B). In no
case may a stowaway be considered an applicant for
admission or eligible for a hearing under section 240.
‘‘(3) INSPECTION.—All aliens (including alien
crewmen) who are applicants for admission or other-
wise seeking admission or readmission to or transit
through the United States shall be inspected by immi-
gration officers.
‘‘(4) WITHDRAWAL OF APPLICATION FOR ADMIS-
SION.—An alien applying for admission may, in the
discretion of the Attorney General and at any time,
be permitted to withdraw the application for admis-
sion and depart immediately from the United States.
‘‘(5) STATEMENTS.—An applicant for admission
may be required to state under oath any information
sought by an immigration officer regarding the pur-
poses and intentions of the applicant in seeking ad-
mission to the United States, including the appli-
cant’s intended length of stay and whether the appli-
cant intends to remain permanently or become a
United States citizen, and whether the applicant is
inadmissible.
‘‘(b) INSPECTION OF APPLICANTS FOR ADMISSION.—
‘‘(1) INSPECTION OF ALIENS ARRIVING IN THE
UNITED STATES.—
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‘‘(A) SCREENING.—If the examining immi-
gration officer determines that an alien arriving
in the United States (whether or not at a port
of 
entry) 
is 
inadmissible 
under 
section
212(a)(6)(C) or 212(a)(7) and the alien—
‘‘(i) does not indicate either an inten-
tion to apply for asylum under section 208
or a fear of persecution, the officer shall
order the alien removed from the United
States without further hearing or review; or
‘‘(ii) indicates an intention to apply
for asylum under section 208 or a fear of
persecution, the officer shall refer the alien
for an interview by an asylum officer under
subparagraph (B).
‘‘(B) ASYLUM INTERVIEWS.—
‘‘(i) CONDUCT BY ASYLUM OFFICERS.—
An asylum officer shall promptly conduct
interviews of aliens referred under subpara-
graph (A)(ii).
‘‘(ii) 
REFERRAL
OF
CERTAIN
ALIENS.—If the officer determines at the
time of the interview that an alien has a
credible fear of persecution (within the
meaning of clause (v)), the alien shall be de-
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tained for further consideration of the ap-
plication for asylum.
‘‘(iii) REMOVAL
WITHOUT
FURTHER
REVIEW IF NO CREDIBLE FEAR OF PERSE-
CUTION.—
‘‘(I) IN
GENERAL.—Subject to
subclause (II), if the officer determines
that an alien does not have a credible
fear of persecution, the officer shall
order the alien removed from the Unit-
ed States without further hearing or
review.
‘‘(II) REVIEW OF DETERMINATION
BY SUPERVISORY OFFICER.—The Attor-
ney General shall promulgate regula-
tions to provide for the immediate re-
view by a supervisory asylum officer at
the port of entry of a determination
under subclause (I).
‘‘(iv) 
INFORMATION
ABOUT
INTER-
VIEWS.—The Attorney General shall provide
information concerning the asylum inter-
view described in this subparagraph to
aliens who may be eligible. An alien who is
eligible for such interview may consult with
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a person or persons of the alien’s choosing
prior to the interview or any review thereof,
according to regulations prescribed by the
Attorney General. Such consultation shall
be at no expense to the Government and
shall not delay the process.
‘‘(v) CREDIBLE FEAR OF PERSECUTION
DEFINED.—For purposes of this subpara-
graph, the term ‘credible fear of persecution’
means (I) that it is more probable than not
that the statements made by the alien in
support of the alien’s claim are true, and
(II) that there is a significant possibility,
in light of such statements and of such other
facts as are known to the officer, that the
alien could establish eligibility for asylum
under section 208.
‘‘(C) LIMITATION ON ADMINISTRATIVE RE-
VIEW.—A removal order entered in accordance
with subparagraph (A)(i) or (B)(iii)(I) is not
subject to administrative appeal, except that the
Attorney General shall provide by regulation for
prompt review of such an order under subpara-
graph (A)(i) against an alien who claims under
oath, or as permitted under penalty of perjury
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under section 1746 of title 28, United States
Code, after having been warned of the penalties
for falsely making such claim under such condi-
tions, to have been lawfully admitted for perma-
nent residence.
‘‘(D) LIMIT ON COLLATERAL ATTACKS.—In
any action brought against an alien under sec-
tion 275(a) or section 276, the court shall not
have jurisdiction to hear any claim attacking the
validity of an order of removal entered under
subparagraph (A)(i) or (B)(iii)(I).
‘‘(E) ASYLUM OFFICER DEFINED.—As used
in this paragraph, the term ‘asylum officer’
means an immigration officer who—
‘‘(i) has had professional training in
country conditions, asylum law, and inter-
view techniques, and
‘‘(ii) is supervised by an officer who
meets the condition described in clause (i).
‘‘(2) INSPECTION OF OTHER ALIENS.—
‘‘(A) IN
GENERAL.—Subject to subpara-
graph (B), in the case of an alien who is an ap-
plicant for admission, if the examining immi-
gration officer determines that an alien seeking
admission is not clearly and beyond a doubt en-
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titled to be admitted, the alien shall be detained
for a hearing under section 240.
‘‘(B) EXCEPTION.—Subparagraph (A) shall
not apply to an alien—
‘‘(i) who is a crewman,
‘‘(ii) to whom paragraph (1) applies,
or
‘‘(iii) who is a stowaway.
‘‘(3) CHALLENGE OF DECISION.—The decision of
the examining immigration officer, if favorable to the
admission of any alien, shall be subject to challenge
by any other immigration officer and such challenge
shall operate to take the alien whose privilege to be
admitted is so challenged, before an immigration
judge for a hearing under section 240.
‘‘(c) REMOVAL OF ALIENS INADMISSIBLE ON SECURITY
AND RELATED GROUNDS.—
‘‘(1) REMOVAL WITHOUT FURTHER HEARING.—If
an immigration officer or an immigration judge sus-
pects that an arriving alien may be inadmissible
under subparagraph (A) (other than clause (ii)), (B),
or (C) of section 212(a)(3), the officer or judge shall—
‘‘(A) order the alien removed, subject to re-
view under paragraph (2);
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‘‘(B) report the order of removal to the At-
torney General; and
‘‘(C) not conduct any further inquiry or
hearing until ordered by the Attorney General.
‘‘(2) REVIEW
OF
ORDER.—(A) The Attorney
General shall review orders issued under paragraph
(1).
‘‘(B) If the Attorney General—
‘‘(i) is satisfied on the basis of confidential
information that the alien is inadmissible under
subparagraph (A) (other than clause (ii)), (B),
or (C) of section 212(a)(3), and
‘‘(ii) after consulting with appropriate secu-
rity agencies of the United States Government,
concludes that disclosure of the information
would be prejudicial to the public interest, safe-
ty, or security,
the Attorney General may order the alien removed
without further inquiry or hearing by an immigra-
tion judge.
‘‘(C) If the Attorney General does not order the
removal of the alien under subparagraph (B), the At-
torney General shall specify the further inquiry or
hearing that shall be conducted in the case.
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‘‘(3) SUBMISSION OF STATEMENT AND INFORMA-
TION.—The alien or the alien’s representative may
submit a written statement and additional informa-
tion for consideration by the Attorney General.
‘‘(d) AUTHORITY RELATING TO INSPECTIONS.—
‘‘(1) AUTHORITY
TO
SEARCH
CONVEYANCES.—
Immigration officers are authorized to board and
search any vessel, aircraft, railway car, or other con-
veyance or vehicle in which they believe aliens are
being brought into the United States.
‘‘(2) AUTHORITY TO ORDER DETENTION AND DE-
LIVERY OF ARRIVING ALIENS.—Immigration officers
are authorized to order an owner, agent, master, com-
manding officer, person in charge, purser, or con-
signee of a vessel or aircraft bringing an alien (except
an alien crewmember) to the United States—
‘‘(A) to detain the alien on the vessel or at
the airport of arrival, and
‘‘(B) to deliver the alien to an immigration
officer for inspection or to a medical officer for
examination.
‘‘(3) ADMINISTRATION OF OATH AND CONSIDER-
ATION OF EVIDENCE.—The Attorney General and any
immigration officer shall have power to administer
oaths and to take and consider evidence of or from
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any person touching the privilege of any alien or per-
son he believes or suspects to be an alien to enter, re-
enter, transit through, or reside in the United States
or concerning any matter which is material and rel-
evant to the enforcement of this Act and the adminis-
tration of the Service.
‘‘(4) SUBPOENA AUTHORITY.—(A) The Attorney
General and any immigration officer shall have
power to require by subpoena the attendance and tes-
timony of witnesses before immigration officers and
the production of books, papers, and documents relat-
ing to the privilege of any person to enter, reenter, re-
side in, or pass through the United States or concern-
ing any matter which is material and relevant to the
enforcement of this Act and the administration of the
Service, and to that end may invoke the aid of any
court of the United States.
‘‘(B) Any United States district court within the
jurisdiction of which investigations or inquiries are
being conducted by an immigration officer may, in
the event of neglect or refusal to respond to a sub-
poena issued under this paragraph or refusal to tes-
tify before an immigration officer, issue an order re-
quiring such persons to appear before an immigration
officer, produce books, papers, and documents if de-
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manded, and testify, and any failure to obey such
order of the court may be punished by the court as
a contempt thereof.’’.
SEC. 303. APPREHENSION AND DETENTION OF ALIENS NOT
LAWFULLY IN THE UNITED STATES (REVISED
SECTION 236).
(a) IN GENERAL.—Section 236 (8 U.S.C. 1226) is
amended to read as follows:
‘‘APPREHENSION AND DETENTION OF ALIENS NOT
LAWFULLY IN THE UNITED STATES
‘‘SEC. 236. (a) ARREST, DETENTION, AND RELEASE.—
On a warrant issued by the Attorney General, an alien may
be arrested and detained pending a decision on whether the
alien is to be removed from the United States. Except as
provided in subsection (c) and pending such decision, the
Attorney General—
‘‘(1) may continue to detain the arrested alien;
and
‘‘(2) may release the alien on—
‘‘(A) bond of at least $1,500 with security
approved by, and containing conditions pre-
scribed by, the Attorney General; or
‘‘(B) conditional parole; but
‘‘(3) may not provide the alien with work au-
thorization (including an ‘employment authorized’
endorsement or other appropriate work permit), un-
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Title III, Subtitle A
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less the alien is lawfully admitted for permanent resi-
dence or otherwise would (without regard to removal
proceedings) be provided such authorization.
‘‘(b) REVOCATION OF BOND OR PAROLE.—The Attor-
ney General at any time may revoke a bond or parole au-
thorized under subsection (a), rearrest the alien under the
original warrant, and detain the alien.
‘‘(c) ALIENS
CONVICTED
OF
AGGRAVATED
FELO-
NIES.—
‘‘(1) CUSTODY.—The Attorney General shall take
into custody any alien convicted of an aggravated fel-
ony when the alien is released, without regard to
whether the alien is released on parole, supervised re-
lease, or probation, and without regard to whether the
alien may be arrested or imprisoned again for the
same offense.
‘‘(2) RELEASE.—The Attorney General may re-
lease the alien only if—
‘‘(A) the alien was lawfully admitted to the
United States and satisfies the Attorney General
that the alien will not pose a danger to the safety
of other persons or of property and is likely to
appear for any scheduled proceeding;
‘‘(B) the alien was not lawfully admitted to
the United States, cannot be removed because the
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designated country of removal will not accept the
alien, and satisfies the Attorney General that the
alien will not pose a danger to the safety of other
persons or of property and is likely to appear for
any scheduled proceeding; or
‘‘(C) the Attorney General decides pursuant
to section 3521 of title 18, United States Code,
that release of the alien from custody is nec-
essary to provide protection to a witness, a po-
tential witness, a person cooperating with an in-
vestigation into major criminal activity, or an
immediate family member or close associate of a
witness, potential witness, or person cooperating
with such an investigation.
A decision relating to such release shall take place in
accordance with a procedure that considers the sever-
ity of the offense committed by the alien.
‘‘(d) IDENTIFICATION OF ALIENS CONVICTED OF AG-
GRAVATED FELONIES.—(1) The Attorney General shall de-
vise and implement a system—
‘‘(A) to make available, daily (on a 24-hour
basis), to Federal, State, and local authorities the in-
vestigative resources of the Service to determine
whether individuals arrested by such authorities for
aggravated felonies are aliens;
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Title III, Subtitle A
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‘‘(B) to designate and train officers and employ-
ees of the Service to serve as a liaison to Federal,
State, and local law enforcement and correctional
agencies and courts with respect to the arrest, convic-
tion, and release of any alien charged with an aggra-
vated felony; and
‘‘(C) which uses computer resources to maintain
a current record of aliens who have been convicted of
an aggravated felony and who have been removed.
‘‘(2) The record under paragraph (1)(C) shall be made
available—
‘‘(A) to inspectors at ports of entry and to border
patrol agents at sector headquarters for purposes of
immediate identification of any such previously re-
moved alien seeking to reenter the United States, and
‘‘(B) to officials of the Department of State for
use in its automated visa lookout system.’’.
(b) INCREASE IN INS DETENTION FACILITIES.—Sub-
ject to the availability of appropriations, the Attorney Gen-
eral shall provide for an increase in the detention facilities
of the Immigration and Naturalization Service to at least
9,000 beds by fiscal year 1997.
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SEC. 304. REMOVAL PROCEEDINGS; CANCELLATION OF RE-
MOVAL AND ADJUSTMENT OF STATUS; VOL-
UNTARY DEPARTURE (REVISED AND NEW
SECTIONS 239 TO 240C).
(a) IN GENERAL.—Chapter 4 of title II is amended—
(1) by redesignating section 239 as section 234
and by moving such section to immediately follow sec-
tion 233;
(2) by redesignating section 240 (8 U.S.C. 1230)
as section 240C; and
(3) by inserting after section 238 the following
new sections:
‘‘INITIATION OF REMOVAL PROCEEDINGS
‘‘SEC. 239. (a) NOTICE TO APPEAR.—
‘‘(1) IN
GENERAL.—In removal proceedings
under section 240, written notice (in this section re-
ferred to as a ‘notice to appear’) shall be given in per-
son to the alien (or, if personal service is not prac-
ticable, through service by mail to the alien or to the
alien’s counsel of record, if any) specifying the follow-
ing:
‘‘(A) The nature of the proceedings against
the alien.
‘‘(B) The legal authority under which the
proceedings are conducted.
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‘‘(C) The acts or conduct alleged to be in
violation of law.
‘‘(D) The charges against the alien and the
statutory provisions alleged to have been vio-
lated.
‘‘(E) The alien may be represented by coun-
sel and the alien will be provided (i) a period of
time to secure counsel under subsection (b)(1)
and (ii) a current list of counsel prepared under
subsection (b)(2).
‘‘(F)(i) The requirement that the alien must
immediately provide (or have provided) the At-
torney General with a written record of an ad-
dress and telephone number (if any) at which the
alien may be contacted respecting proceedings
under section 240.
‘‘(ii) The requirement that the alien must
provide the Attorney General immediately with
a written record of any change of the alien’s ad-
dress or telephone number.
‘‘(iii) 
The 
consequences 
under 
section
240(b)(5) of failure to provide address and tele-
phone information pursuant to this subpara-
graph.
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‘‘(G)(i) The time and place at which the
proceedings will be held.
‘‘(ii) 
The 
consequences 
under 
section
240(b)(5) of the failure, except under exceptional
circumstances, to appear at such proceedings.
‘‘(2) NOTICE OF CHANGE IN TIME OR PLACE OF
PROCEEDINGS.—
‘‘(A) IN GENERAL.—In removal proceedings
under section 240, in the case of any change or
postponement in the time and place of such pro-
ceedings, subject to subparagraph (B) a written
notice shall be given in person to the alien (or,
if personal service is not practicable, through
service by mail to the alien or to the alien’s
counsel of record, if any) specifying—
‘‘(i) the new time or place of the pro-
ceedings, and
‘‘(ii) the consequences under section
240(b)(5) of failing, except under excep-
tional circumstances, to attend such pro-
ceedings.
‘‘(B) EXCEPTION.—In the case of an alien
not in detention, a written notice shall not be re-
quired under this paragraph if the alien has
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failed to provide the address required under
paragraph (1)(F).
‘‘(3) CENTRAL ADDRESS FILES.—The Attorney
General shall create a system to record and preserve
on a timely basis notices of addresses and telephone
numbers (and changes) provided under paragraph
(1)(F).
‘‘(b) SECURING OF COUNSEL.—
‘‘(1) IN GENERAL.—In order that an alien be
permitted the opportunity to secure counsel before the
first hearing date in proceedings under section 240,
the hearing date shall not be scheduled earlier than 10
days after the service of the notice to appear, unless
the alien requests in writing an earlier hearing date.
‘‘(2) CURRENT LISTS OF COUNSEL.—The Attor-
ney General shall provide for lists (updated not less
often than quarterly) of persons who have indicated
their availability to represent pro bono aliens in pro-
ceedings under section 240. Such lists shall be pro-
vided under subsection (a)(1)(E) and otherwise made
generally available.
‘‘(c) SERVICE BY MAIL.—Service by mail under this
section shall be sufficient if there is proof of attempted deliv-
ery to the last address provided by the alien in accordance
with subsection (a)(1)(F).
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‘‘(d) PROMPT INITIATION OF REMOVAL.—(1) In the
case of an alien who is convicted of an offense which makes
the alien deportable, the Attorney General shall begin any
removal proceeding as expeditiously as possible after the
date of the conviction.
‘‘(2) Nothing in this subsection shall be construed to
create any substantive or procedural right or benefit that
is legally enforceable by any party against the United
States or its agencies or officers or any other person.
‘‘REMOVAL PROCEEDINGS
‘‘SEC. 240. (a) PROCEEDING.—
‘‘(1) IN GENERAL.—An immigration judge shall
conduct proceedings for deciding the inadmissibility
or deportability of an alien.
‘‘(2) CHARGES.—An alien placed in proceedings
under this section may be charged with any applica-
ble ground of inadmissibility under section 212(a) or
any applicable ground of deportability under section
237(a).
‘‘(3) EXCLUSIVE
PROCEDURES.—Unless other-
wise specified in this Act, a proceeding under this sec-
tion shall be the sole and exclusive procedure for de-
termining whether an alien may be admitted to the
United States or, if the alien has been so admitted,
removed from the United States. Nothing in this sec-
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tion shall affect proceedings conducted pursuant to
section 238.
‘‘(b) CONDUCT OF PROCEEDING.—
‘‘(1) AUTHORITY OF IMMIGRATION JUDGE.—The
immigration judge shall administer oaths, receive evi-
dence, and interrogate, examine, and cross-examine
the alien and any witnesses. The immigration judge
may issue subpoenas for the attendance of witnesses
and presentation of evidence. The immigration judge
shall have authority (under regulations prescribed by
the Attorney General) to sanction by civil money pen-
alty any action (or inaction) in contempt of the
judge’s proper exercise of authority under this Act.
‘‘(2) FORM OF PROCEEDING.—
‘‘(A) IN
GENERAL.—The proceeding may
take place—
‘‘(i) in person,
‘‘(ii) through video conference, or
‘‘(iii) subject to subparagraph (B),
through telephone conference.
‘‘(B) CONSENT
REQUIRED
IN
CERTAIN
CASES.—An evidentiary hearing on the merits
may only be conducted through a telephone con-
ference with the consent of the alien involved
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after the alien has been advised of the right to
proceed in person or through video conference.
‘‘(3) PRESENCE OF ALIEN.—If it is impractica-
ble by reason of an alien’s mental incompetency for
the alien to be present at the proceeding, the Attorney
General shall prescribe safeguards to protect the rights
and privileges of the alien.
‘‘(4) ALIENS RIGHTS IN PROCEEDING.—In pro-
ceedings under this section, under regulations of the
Attorney General—
‘‘(A) the alien shall have the privilege of
being represented, at no expense to the Govern-
ment, by counsel of the alien’s choosing who is
authorized to practice in such proceedings,
‘‘(B) the alien shall have a reasonable op-
portunity to examine the evidence against the
alien, to present evidence on the alien’s own be-
half, and to cross-examine witnesses presented by
the Government, and
‘‘(C) a complete record shall be kept of all
testimony and evidence produced at the proceed-
ing.
‘‘(5) CONSEQUENCES OF FAILURE TO APPEAR.—
‘‘(A) IN GENERAL.—Any alien who, after
written notice required under paragraph (1) or
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(2) of section 239(a) has been provided to the
alien or the alien’s counsel of record, does not at-
tend a proceeding under this section, shall be or-
dered removed in absentia if the Service estab-
lishes by clear, unequivocal, and convincing evi-
dence that the written notice was so provided
and that the alien is removable (as defined in
subsection (e)(2)). The written notice by the At-
torney General shall be considered sufficient for
purposes of this subparagraph if provided at the
most recent address provided under section
239(a)(1)(F).
‘‘(B) NO NOTICE IF FAILURE TO PROVIDE
ADDRESS INFORMATION.—No written notice shall
be required under subparagraph (A) if the alien
has failed to provide the address required under
section 239(a)(1)(F).
‘‘(C) RESCISSION
OF
ORDER.—Such an
order may be rescinded only—
‘‘(i) upon a motion to reopen filed
within 180 days after the date of the order
of removal if the alien demonstrates that the
failure to appear was because of exceptional
circumstances (as defined in subsection
(e)(1)), or
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‘‘(ii) upon a motion to reopen filed at
any time if the alien demonstrates that the
alien did not receive notice in accordance
with paragraph (1) or (2) of section 239(a)
or the alien demonstrates that the alien was
in Federal or State custody and did not ap-
pear through no fault of the alien.
The filing of the motion to reopen described in
clause (i) or (ii) shall stay the removal of the
alien pending disposition of the motion.
‘‘(D) EFFECT ON JUDICIAL REVIEW.—Any
petition for review under section 242 of an order
entered in absentia under this paragraph shall
(except in cases described in section 242(b)(5)) be
confined to (i) the validity of the notice provided
to the alien, (ii) the reasons for the alien’s not
attending the proceeding, and (iii) whether or
not the alien is removable.
‘‘(6) TREATMENT
OF
FRIVOLOUS
BEHAVIOR.—
The Attorney General shall, by regulation—
‘‘(A) define in a proceeding before an immi-
gration judge or before an appellate administra-
tive body under this title, frivolous behavior for
which attorneys may be sanctioned,
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‘‘(B) specify the circumstances under which
an administrative appeal of a decision or ruling
will be considered frivolous and will be sum-
marily dismissed, and
‘‘(C) impose appropriate sanctions (which
may include suspension and disbarment) in the
case of frivolous behavior.
Nothing in this paragraph shall be construed as lim-
iting the authority of the Attorney General to take ac-
tions with respect to inappropriate behavior.
‘‘(7) LIMITATION ON DISCRETIONARY RELIEF FOR
FAILURE TO APPEAR.—Any alien against whom a
final order of removal is entered in absentia under
this subsection and who, at the time of the notice de-
scribed in paragraph (1) or (2) of section 239(a), was
provided oral notice, either in the alien’s native lan-
guage or in another language the alien understands,
of the time and place of the proceedings and of the
consequences under this paragraph of failing, other
than because of exceptional circumstances (as defined
in subsection (e)(1)) to attend a proceeding under this
section, shall not be eligible for relief under section
240A, 240B, 245, 248, or 249 for a period of 10 years
after the date of the entry of the final order of re-
moval.
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‘‘(c) DECISION AND BURDEN OF PROOF.—
‘‘(1) DECISION.—
‘‘(A) IN GENERAL.—At the conclusion of the
proceeding the immigration judge shall decide
whether an alien is removable from the United
States. The determination of the immigration
judge shall be based only on the evidence pro-
duced at the hearing.
‘‘(B) CERTAIN MEDICAL DECISIONS.—If a
medical officer or civil surgeon or board of medi-
cal officers has certified under section 232(b)
that an alien has a disease, illness, or addiction
which would make the alien inadmissible under
paragraph (1) of section 212(a), the decision of
the immigration judge shall be based solely upon
such certification.
‘‘(2) BURDEN ON ALIEN.—In the proceeding the
alien has the burden of establishing—
‘‘(A) if the alien is an applicant for admis-
sion, that the alien is clearly and beyond doubt
entitled to be admitted and is not inadmissible
under section 212; or
‘‘(B) by clear and convincing evidence, that
the alien is lawfully present in the United States
pursuant to a prior admission.
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In meeting the burden of proof under subparagraph
(B), the alien shall have access to the alien’s visa or
other entry document, if any, and any other records
and documents, not considered by the Attorney Gen-
eral to be confidential, pertaining to the alien’s ad-
mission or presence in the United States.
‘‘(3) BURDEN ON SERVICE IN CASES OF DEPORT-
ABLE ALIENS.—In the proceeding the Service has the
burden of establishing by clear and convincing evi-
dence that, in the case of an alien who has been ad-
mitted to the United States, the alien is deportable.
No decision on deportability shall be valid unless it
is based upon reasonable, substantial, and probative
evidence.
‘‘(4) NOTICE.—If the immigration judge decides
that the alien is removable and orders the alien to be
removed, the judge shall inform the alien of the right
to appeal that decision and of the consequences for
failure to depart under the order of removal, includ-
ing civil and criminal penalties.
‘‘(5) MOTIONS TO RECONSIDER.—
‘‘(A) IN GENERAL.—The alien may file one
motion to reconsider a decision that the alien is
removable from the United States.
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‘‘(B) DEADLINE.—The motion must be filed
within 30 days of the date of entry of a final ad-
ministrative order of removal.
‘‘(C) CONTENTS.—The motion shall specify
the errors of law or fact in the previous order
and shall be supported by pertinent authority.
‘‘(6) MOTIONS TO REOPEN.—
‘‘(A) IN GENERAL.—An alien may file one
motion to reopen proceedings under this section.
‘‘(B) CONTENTS.—The motion to reopen
shall state the new facts that will be proven at
a hearing to be held if the motion is granted,
and shall be supported by affidavits or other evi-
dentiary material.
‘‘(C) DEADLINE.—
‘‘(i) IN GENERAL.—Except as provided
in this subparagraph, the motion to reopen
shall be filed within 90 days of the date of
entry of a final administrative order of re-
moval.
‘‘(ii) ASYLUM.—There is no time limit
on the filing of a motion to reopen if the
basis of the motion is to apply for relief
under sections 208 or 241(b)(3) and is
based on changed country conditions aris-
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ing in the country of nationality or the
country to which removal has been ordered,
if such evidence is material and was not
available and would not have been discov-
ered or presented at the previous proceeding.
‘‘(iii) FAILURE TO APPEAR.—A motion
to reopen may be filed within 180 days
after the date of the final order of removal
if the order has been entered pursuant to
subsection (b)(5) due to the alien’s failure to
appear for proceedings under this section
and the alien establishes that the alien’s
failure to appear was because of exceptional
circumstances beyond the control of the
alien or because the alien did not receive the
notice required under section 239(a)(2).
‘‘(d) STIPULATED REMOVAL.—The Attorney General
shall provide by regulation for the entry by an immigration
judge of an order of removal stipulated to by the alien (or
the alien’s representative) and the Service. A stipulated
order shall constitute a conclusive determination of the
alien’s removability from the United States.
‘‘(e) DEFINITIONS.—In this section and section 240A:
‘‘(1) EXCEPTIONAL CIRCUMSTANCES.—The term
‘exceptional circumstances’ refers to exceptional cir-
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cumstances (such as serious illness of the alien or se-
rious illness or death of the spouse, child, or parent
of the alien, but not including less compelling cir-
cumstances) beyond the control of the alien.
‘‘(2) 
REMOVABLE.—The 
term 
‘removable’
means—
‘‘(A) in the case of an alien not admitted to
the United States, that the alien is inadmissible
under section 212, or
‘‘(B) in the case of an alien admitted to the
United States, that the alien is deportable under
section 237.
‘‘CANCELLATION OF REMOVAL; ADJUSTMENT OF STATUS
‘‘SEC. 240A. (a) CANCELLATION OF REMOVAL FOR
CERTAIN PERMANENT RESIDENTS.—The Attorney General
may cancel removal in the case of an alien who is inadmis-
sible or deportable from the United States if the alien—
‘‘(1) has been an alien lawfully admitted for per-
manent residence for not less than 5 years,
‘‘(2) has resided in the United States continu-
ously for 7 years after having been admitted in any
status, and
‘‘(3) has not been convicted of an aggravated fel-
ony or felonies for which the alien has been sentenced,
in the aggregate, to a term of imprisonment of at
least 5 years.
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‘‘(b) CANCELLATION OF REMOVAL AND ADJUSTMENT
OF STATUS FOR CERTAIN NONPERMANENT RESIDENTS.—
‘‘(1) IN GENERAL.—The Attorney General may
cancel removal in the case of an alien who is deport-
able from the United States if the alien—
‘‘(A) has been physically present in the
United States for a continuous period of not less
than 7 years immediately preceding the date of
such application;
‘‘(B) has been a person of good moral char-
acter during such period;
‘‘(C) has not been convicted of an aggra-
vated felony; and
‘‘(D) establishes that removal would result
in extreme hardship to the alien or to the alien’s
spouse, parent, or child, who is a citizen of the
United States or an alien lawfully admitted for
permanent residence.
‘‘(2) SPECIAL RULE FOR BATTERED SPOUSE OR
CHILD.—The Attorney General may cancel removal
in the case of an alien who is inadmissible or deport-
able from the United States if the alien—
‘‘(A) has been battered or subjected to ex-
treme cruelty in the United States by a spouse
or parent who is a United States citizen or law-
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ful permanent resident (or is the parent of a
child of a United States citizen or lawful perma-
nent resident and the child has been battered or
subjected to extreme cruelty in the United States
by such citizen or permanent resident parent);
‘‘(B) has been physically present in the
United States for a continuous period of not less
than 3 years immediately preceding the date of
such application;
‘‘(C) has been a person of good moral char-
acter during such period;
‘‘(D) is not inadmissible under paragraph
(2) or (3) of section 212(a), is not deportable
under paragraph (1)(G) or (2) through (4) of
section 237(a), and has not been convicted of an
aggravated felony; and
‘‘(E) establishes that removal would result
in extreme hardship to the alien, the alien’s
child, or (in the case of an alien who is a child)
to the alien’s parent.
In acting on applications under this paragraph, the
Attorney General shall consider any credible evidence
relevant to the application. The determination of
what evidence is credible and the weight to be given
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that evidence shall be within the sole discretion of the
Attorney General.
‘‘(3) ADJUSTMENT
OF
STATUS.—The Attorney
General may adjust to the status of an alien lawfully
admitted for permanent residence any alien who the
Attorney General determines meets the requirements
of paragraph (1) or (2). The number of adjustments
under this paragraph shall not exceed 4,000 for any
fiscal year. The Attorney General shall record the
alien’s lawful admission for permanent residence as
of the date the Attorney General’s cancellation of re-
moval under paragraph (1) or (2) or determination
under this paragraph.
‘‘(c) ALIENS INELIGIBLE FOR RELIEF.—The provi-
sions of subsections (a) and (b)(1) shall not apply to any
of the following aliens:
‘‘(1) An alien who entered the United States as
a crewman subsequent to June 30, 1964.
‘‘(2) An alien who was admitted to the United
States as a nonimmigrant exchange alien as defined
in section 101(a)(15)(J), or has acquired the status of
such a nonimmigrant exchange alien after admission,
in order to receive graduate medical education or
training, regardless of whether or not the alien is sub-
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ject to or has fulfilled the two-year foreign residence
requirement of section 212(e).
‘‘(3) An alien who—
‘‘(A) was admitted to the United States as
a nonimmigrant exchange alien as defined in
section 101(a)(15)(J) or has acquired the status
of such a nonimmigrant exchange alien after ad-
mission other than to receive graduate medical
education or training,
‘‘(B) is subject to the two-year foreign resi-
dence requirement of section 212(e), and
‘‘(C) has not fulfilled that requirement or
received a waiver thereof.
‘‘(4) An alien who is inadmissible under section
212(a)(3) or deportable under subparagraph (B) or
(D) of section 237(a)(4).
‘‘(d) SPECIAL RULES RELATING TO CONTINUOUS RES-
IDENCE OR PHYSICAL PRESENCE.—
‘‘(1) TERMINATION OF CONTINUOUS PERIOD.—
For purposes of this section, any period of continuous
residence or continuous physical presence in the Unit-
ed States shall be deemed to end when the alien is
served a notice to appear under section 239(a).
‘‘(2) TREATMENT OF CERTAIN BREAKS IN PRES-
ENCE.—An alien shall be considered to have failed to
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maintain continuous physical presence in the United
States under subsections (b)(1) and (b)(2) if the alien
has departed from the United States for any periods
in the aggregate exceeding 180 days, unless the Attor-
ney General finds that return could not be accom-
plished within that time period due to emergent rea-
sons.
‘‘(3) CONTINUITY NOT REQUIRED BECAUSE OF
HONORABLE SERVICE IN ARMED FORCES AND PRES-
ENCE UPON ENTRY INTO SERVICE.—The requirements
of continuous residence or continuous physical pres-
ence in the United States under subsections (a) and
(b) shall not apply to an alien who—
‘‘(A) has served for a minimum period of 24
months in an active-duty status in the Armed
Forces of the United States and, if separated
from such service, was separated under honorable
conditions, and
‘‘(B) at the time of the alien’s enlistment or
induction was in the United States.
‘‘VOLUNTARY DEPARTURE
‘‘SEC. 240B. (a) CERTAIN CONDITIONS.—
‘‘(1) IN GENERAL.—The Attorney General may
permit an alien voluntarily to depart the United
States at the alien’s own expense under this sub-
section, in lieu of being subject to proceedings under
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section 240 or prior to the completion of such proceed-
ings, if the alien is not deportable under section
237(a)(2)(A)(iii) or section 237(a)(4)(B).
‘‘(2) PERIOD.—Permission to depart voluntarily
under this subsection shall not be valid for a period
exceeding 120 days.
‘‘(3) BOND.—The Attorney General may require
an alien permitted to depart voluntarily under this
subsection to post a voluntary departure bond, to be
surrendered upon proof that the alien has departed
the United States within the time specified.
‘‘(4) TREATMENT OF ALIENS ARRIVING IN THE
UNITED STATES.—In the case of an alien who is ar-
riving in the United States and with respect to whom
proceedings under section 240 are (or would otherwise
be) initiated at the time of such alien’s arrival, para-
graph (1) shall not apply. Nothing in this paragraph
shall be construed as preventing such an alien from
withdrawing the application for admission in accord-
ance with section 235(a)(4).
‘‘(b) AT CONCLUSION OF PROCEEDINGS.—
‘‘(1) IN GENERAL.—The Attorney General may
permit an alien voluntarily to depart the United
States at the alien’s own expense if, at the conclusion
of a proceeding under section 240, the immigration
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judge enters an order granting voluntary departure
in lieu of removal and finds that—
‘‘(A) the alien has been physically present
in the United States for a period of at least one
year immediately preceding the date the notice
to appear was served under section 239(a);
‘‘(B) the alien is, and has been, a person of
good moral character for at least 5 years imme-
diately preceding the alien’s application for vol-
untary departure;
‘‘(C) the alien is not deportable under sec-
tion 237(a)(2)(A)(iii) or section 237(a)(4); and
‘‘(D) the alien has established by clear and
convincing evidence that the alien has the means
to depart the United States and intends to do so.
‘‘(2) PERIOD.—Permission to depart voluntarily
under this subsection shall not be valid for a period
exceeding 60 days.
‘‘(3) BOND.—An alien permitted to depart vol-
untarily under this subsection shall be required to
post a voluntary departure bond, in an amount nec-
essary to ensure that the alien will depart, to be sur-
rendered upon proof that the alien has departed the
United States within the time specified.
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‘‘(c) ALIENS NOT ELIGIBLE.—The Attorney General
shall not permit an alien to depart voluntarily under this
section if the alien was previously permitted to so depart
after having been found inadmissible under section
212(a)(9).
‘‘(d) CIVIL PENALTY FOR FAILURE TO DEPART.—If an
alien is permitted to depart voluntarily under this section
and fails voluntarily to depart the United States within
the time period specified, the alien shall be subject to a civil
penalty of not less than $1,000 and not more than $5,000,
and be ineligible for a period of 10 years for any further
relief under this section and sections 240A, 245, 248, and
249.
‘‘(e) ADDITIONAL CONDITIONS.—The Attorney General
may by regulation limit eligibility for voluntary departure
under this section for any class or classes of aliens.
‘‘(f) APPEALS OF DENIALS.—An alien may appeal
from denial of a request for an order of voluntary departure
under subsection (b) in accordance with the procedures in
section 242. Notwithstanding the pendency of such appeal,
the alien shall be removable from the United States 60 days
after entry of the order of removal. The alien’s removal from
the United States shall not moot the appeal.’’.
(b) REPEAL OF SECTION 212(c).—Section 212(c) (8
U.S.C. 1182(c)) is repealed.
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SEC. 305. DETENTION AND REMOVAL OF ALIENS ORDERED
REMOVED (NEW SECTION 241).
(a) IN GENERAL.—Title II is further amended—
(1) by striking section 237 (8 U.S.C. 1227),
(2) by redesignating section 241 as section 237
and by moving such section to immediately follow sec-
tion 236, and
(3) by inserting after section 240C (as redesig-
nated by section 304(a)(2)) the following new section:
‘‘DETENTION AND REMOVAL OF ALIENS ORDERED REMOVED
‘‘SEC. 241. (a) DETENTION, RELEASE, AND REMOVAL
OF ALIENS ORDERED REMOVED.—
‘‘(1) REMOVAL PERIOD.—
‘‘(A) IN
GENERAL.—Except as otherwise
provided in this section, when an alien is or-
dered removed, the Attorney General shall re-
move the alien from the United States within a
period of 90 days (in this section referred to as
the ‘removal period’).
‘‘(B) BEGINNING OF PERIOD.—The removal
period begins on the latest of the following:
‘‘(i) The date the order of removal be-
comes administratively final.
‘‘(ii) If the removal order is judicially
reviewed and such review serves to stay the
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removal of the alien, the date of the court’s
final order.
‘‘(iii) If the alien is detained or con-
fined (except under an immigration proc-
ess), the date the alien is released from de-
tention or confinement.
‘‘(C) SUSPENSION
OF
PERIOD.—The re-
moval period shall be extended beyond a period
of 90 days and the alien may remain in deten-
tion during such extended period if the alien
willfully fails or refuses to make timely applica-
tion in good faith for travel or other documents
necessary to the alien’s departure or conspires or
acts to prevent the alien’s removal subject to an
order of removal.
‘‘(2) DETENTION AND RELEASE BY THE ATTOR-
NEY GENERAL.—During the removal period, the At-
torney General shall detain the alien. If there is in-
sufficient detention space to detain the alien, the At-
torney General shall make a specific finding to this
effect and may release the alien on a bond containing
such conditions as the Attorney General may pre-
scribe.
‘‘(3) SUPERVISION AFTER 90-DAY PERIOD.—If the
alien does not leave or is not removed within the re-
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moval period, the alien, pending removal, shall be
subject to supervision under regulations prescribed by
the Attorney General. The regulations shall include
provisions requiring the alien—
‘‘(A) to appear before an immigration offi-
cer periodically for identification;
‘‘(B) to submit, if necessary, to a medical
and psychiatric examination at the expense of
the United States Government;
‘‘(C) to give information under oath about
the alien’s nationality, circumstances, habits, as-
sociations, and activities, and other information
the Attorney General considers appropriate; and
‘‘(D) to obey reasonable written restrictions
on the alien’s conduct or activities that the At-
torney General prescribes for the alien.
‘‘(4) ALIENS IMPRISONED, ARRESTED, OR ON PA-
ROLE, SUPERVISED RELEASE, OR PROBATION.—Ex-
cept as provided in section 343(a) of the Public
Health Service Act (42 U.S.C. 259(a)), the Attorney
General may not remove an alien who is sentenced to
imprisonment until the alien is released from impris-
onment. Parole, supervised release, probation, or pos-
sibility of arrest or further imprisonment is not a
reason to defer removal.
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‘‘(5) REINSTATEMENT
OF
REMOVAL
ORDERS
AGAINST ALIENS ILLEGALLY REENTERING.—If the At-
torney General finds that an alien has reentered the
United States illegally after having been removed or
having departed voluntarily, under an order of re-
moval, the prior order of removal is reinstated from
its original date and is not subject to being reopened
or reviewed, and the alien shall be removed under the
prior order at any time after the reentry.
‘‘(6) INADMISSIBLE ALIENS.—An alien ordered
removed who is inadmissible under section 212 may
be detained beyond the removal period and, if re-
leased, shall be subject to the terms of supervision in
paragraph (3).
‘‘(7) EMPLOYMENT
AUTHORIZATION.—No alien
ordered removed shall be eligible to receive authoriza-
tion to be employed in the United States unless the
Attorney General makes a specific finding that—
‘‘(A) the alien cannot be removed due to the
refusal of all countries designated by the alien or
under this section to receive the alien, or
‘‘(B) the removal of the alien is otherwise
impracticable or contrary to the public interest.
‘‘(b) COUNTRIES TO WHICH ALIENS MAY BE RE-
MOVED.—
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‘‘(1) 
ALIENS
ARRIVING
AT
THE
UNITED
STATES.—Subject to paragraph (3)—
‘‘(A) IN GENERAL.—Except as provided by
subparagraphs (B) and (C), an alien who ar-
rives at the United States and with respect to
whom proceedings under section 240 were initi-
ated at the time of such alien’s arrival shall be
removed to the country in which the alien
boarded the vessel or aircraft on which the alien
arrived in the United States.
‘‘(B) TRAVEL
FROM
CONTIGUOUS
TERRI-
TORY.—If the alien boarded the vessel or aircraft
on which the alien arrived in the United States
in a foreign territory contiguous to the United
States, an island adjacent to the United States,
or an island adjacent to a foreign territory con-
tiguous to the United States, and the alien is not
a native, citizen, subject, or national of, or does
not reside in, the territory or island, removal
shall be to the country in which the alien
boarded the vessel that transported the alien to
the territory or island.
‘‘(C) ALTERNATIVE COUNTRIES.—If the gov-
ernment of the country designated in subpara-
graph (A) or (B) is unwilling to accept the alien
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into that country’s territory, removal shall be to
any of the following countries, as directed by the
Attorney General:
‘‘(i) The country of which the alien is
a citizen, subject, or national.
‘‘(ii) The country in which the alien
was born.
‘‘(iii) The country in which the alien
has a residence.
‘‘(iv) A country with a government
that will accept the alien into the country’s
territory if removal to each country de-
scribed in a previous clause of this subpara-
graph is impracticable, inadvisable, or im-
possible.
‘‘(2) OTHER
ALIENS.—Subject to paragraph
(3)—
‘‘(A) SELECTION OF COUNTRY BY ALIEN.—
Except as otherwise provided in this para-
graph—
‘‘(i) any alien not described in para-
graph (1) who has been ordered removed
may designate one country to which the
alien wants to be removed, and
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‘‘(ii) the Attorney General shall remove
the alien to the country the alien so des-
ignates.
‘‘(B) LIMITATION
ON
DESIGNATION.—An
alien may designate under subparagraph (A)(i)
a foreign territory contiguous to the United
States, an adjacent island, or an island adjacent
to a foreign territory contiguous to the United
States as the place to which the alien is to be re-
moved only if the alien is a native, citizen, sub-
ject, or national of, or has resided in, that des-
ignated territory or island.
‘‘(C) DISREGARDING
DESIGNATION.—The
Attorney General may disregard a designation
under subparagraph (A)(i) if—
‘‘(i) the alien fails to designate a coun-
try promptly;
‘‘(ii) the government of the country
does not inform the Attorney General fi-
nally, within 30 days after the date the At-
torney General first inquires, whether the
government will accept the alien into the
country;
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‘‘(iii) the government of the country is
not willing to accept the alien into the
country; or
‘‘(iv) the Attorney General decides that
removing the alien to the country is preju-
dicial to the United States.
‘‘(D) ALTERNATIVE COUNTRY.—If an alien
is not removed to a country designated under
subparagraph (A)(i), the Attorney General shall
remove the alien to a country of which the alien
is a subject, national, or citizen unless the gov-
ernment of the country—
‘‘(i) does not inform the Attorney Gen-
eral or the alien finally, within 30 days
after the date the Attorney General first in-
quires or within another period of time the
Attorney General decides is reasonable,
whether the government will accept the alien
into the country; or
‘‘(ii) is not willing to accept the alien
into the country.
‘‘(E) ADDITIONAL REMOVAL COUNTRIES.—If
an alien is not removed to a country under the
previous subparagraphs of this paragraph, the
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Attorney General shall remove the alien to any
of the following countries:
‘‘(i) The country from which the alien
was admitted to the United States.
‘‘(ii) The country in which is located
the foreign port from which the alien left for
the United States or for a foreign territory
contiguous to the United States.
‘‘(iii) A country in which the alien re-
sided before the alien entered the country
from which the alien entered the United
States.
‘‘(iv) The country in which the alien
was born.
‘‘(v) The country that had sovereignty
over the alien’s birthplace when the alien
was born.
‘‘(vi) The country in which the alien’s
birthplace is located when the alien is or-
dered removed.
‘‘(vii) If impracticable, inadvisable, or
impossible to remove the alien to each coun-
try described in a previous clause of this
subparagraph, another country whose gov-
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ernment will accept the alien into that
country.
‘‘(F) REMOVAL
COUNTRY
WHEN
UNITED
STATES IS AT WAR.—When the United States is
at war and the Attorney General decides that it
is impracticable, inadvisable, inconvenient, or
impossible to remove an alien under this sub-
section because of the war, the Attorney General
may remove the alien—
‘‘(i) to the country that is host to a
government in exile of the country of which
the alien is a citizen or subject if the gov-
ernment of the host country will permit the
alien’s entry; or
‘‘(ii) if the recognized government of
the country of which the alien is a citizen
or subject is not in exile, to a country, or
a political or territorial subdivision of a
country, that is very near the country of
which the alien is a citizen or subject, or,
with the consent of the government of the
country of which the alien is a citizen or
subject, to another country.
‘‘(c) REMOVAL
OF ALIENS ARRIVING
AT PORT
OF
ENTRY.—
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‘‘(1) VESSELS AND AIRCRAFT.—An alien arriv-
ing at a port of entry of the United States who is or-
dered removed either without a hearing under section
235(a)(1) or 235(c) or pursuant to proceedings under
section 240 initiated at the time of such alien’s arriv-
al shall be removed immediately on a vessel or air-
craft owned by the owner of the vessel or aircraft on
which the alien arrived in the United States, unless—
‘‘(A) it is impracticable to remove the alien
on one of those vessels or aircraft within a rea-
sonable time, or
‘‘(B) the alien is a stowaway—
‘‘(i) who has been ordered removed in
accordance with section 235(a)(1),
‘‘(ii) who has requested asylum, and
‘‘(iii) whose application has not been
adjudicated or whose asylum application
has been denied but who has not exhausted
all appeal rights.
‘‘(2) STAY OF REMOVAL.—
‘‘(A) IN GENERAL.—The Attorney General
may stay the removal of an alien under this sub-
section if the Attorney General decides that—
‘‘(i) immediate removal is not prac-
ticable or proper; or
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‘‘(ii) the alien is needed to testify in
the prosecution of a person for a violation
of a law of the United States or of any
State.
‘‘(B) PAYMENT
OF
DETENTION
COSTS.—
During the period an alien is detained because
of a stay of removal under subparagraph (A)(ii),
the Attorney General may pay from the appro-
priation ‘Immigration and Naturalization Serv-
ice—Salaries and Expenses’—
‘‘(i) the cost of maintenance of the
alien; and
‘‘(ii) a witness fee of $1 a day.
‘‘(C) RELEASE DURING STAY.—The Attor-
ney General may release an alien whose removal
is stayed under subparagraph (A)(ii) on—
‘‘(i) the alien’s filing a bond of at least
$500 with security approved by the Attor-
ney General;
‘‘(ii) condition that the alien appear
when required as a witness and for removal;
and
‘‘(iii) other conditions the Attorney
General may prescribe.
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‘‘(3) COSTS OF DETENTION AND MAINTENANCE
PENDING REMOVAL.—
‘‘(A) IN GENERAL.—Except as provided in
subparagraph (B) and subsection (d), an owner
of a vessel or aircraft bringing an alien to the
United States shall pay the costs of detaining
and maintaining the alien—
‘‘(i) while the alien is detained under
subsection (d)(1), and
‘‘(ii) in the case of an alien who is a
stowaway, while the alien is being detained
pursuant to—
‘‘(I) 
subsection 
(d)(2)(A) 
or
(d)(2)(B)(i),
‘‘(II) subsection (d)(2)(B)(ii) or
(iii) for the period of time reasonably
necessary for the owner to arrange for
repatriation or removal of the stow-
away, including obtaining necessary
travel documents, but not to extend be-
yond 
the 
date 
on 
which 
it 
is
ascertained that such travel documents
cannot be obtained from the country to
which the stowaway is to be returned,
or
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‘‘(III) section 235(b)(1)(B)(ii), for
a period not to exceed 15 days (exclud-
ing Saturdays, Sundays, and holidays)
commencing on the first such day
which begins on the earlier of 72 hours
after the time of the initial presen-
tation of the stowaway for inspection
or at the time the stowaway is deter-
mined to have a credible fear of perse-
cution.
‘‘(B) NONAPPLICATION.—Subparagraph (A)
shall not apply if—
‘‘(i) the alien is a crewmember;
‘‘(ii) the alien has an immigrant visa;
‘‘(iii) the alien has a nonimmigrant
visa or other documentation authorizing the
alien to apply for temporary admission to
the United States and applies for admission
not later than 120 days after the date the
visa or documentation was issued;
‘‘(iv) the alien has a reentry permit
and applies for admission not later than
120 days after the date of the alien’s last
inspection and admission;
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Title III, Subtitle A
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‘‘(v)(I) the alien has a nonimmigrant
visa or other documentation authorizing the
alien to apply for temporary admission to
the United States or a reentry permit;
‘‘(II) the alien applies for admission
more than 120 days after the date the visa
or documentation was issued or after the
date of the last inspection and admission
under the reentry permit; and
‘‘(III) the owner of the vessel or air-
craft satisfies the Attorney General that the
existence of the condition relating to inad-
missibility could not have been discovered
by exercising reasonable care before the
alien boarded the vessel or aircraft; or
‘‘(vi) the individual claims to be a na-
tional of the United States and has a Unit-
ed States passport.
‘‘(d) REQUIREMENTS OF PERSONS PROVIDING TRANS-
PORTATION.—
‘‘(1) REMOVAL AT TIME OF ARRIVAL.—An owner,
agent, master, commanding officer, person in charge,
purser, or consignee of a vessel or aircraft bringing
an alien (except an alien crewmember) to the United
States shall—
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Title III, Subtitle A
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‘‘(A) receive an alien back on the vessel or
aircraft or another vessel or aircraft owned or
operated by the same interests if the alien is or-
dered removed under this part; and
‘‘(B) take the alien to the foreign country to
which the alien is ordered removed.
‘‘(2) ALIEN STOWAWAYS.—An owner, agent, mas-
ter, commanding officer, charterer, or consignee of a
vessel or aircraft arriving in the United States with
an alien stowaway—
‘‘(A) shall detain the alien on board the ves-
sel or aircraft, or at such place as the Attorney
General shall designate, until completion of the
inspection of the alien by an immigration offi-
cer;
‘‘(B) may not permit the stowaway to land
in the United States, except pursuant to regula-
tions of the Attorney General temporarily—
‘‘(i) for medical treatment,
‘‘(ii) for detention of the stowaway by
the Attorney General, or
‘‘(iii) for departure or removal of the
stowaway; and
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Title III, Subtitle A
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‘‘(C) if ordered by an immigration officer,
shall remove the stowaway on the vessel or air-
craft or on another vessel or aircraft.
The Attorney General shall grant a timely request to
remove the stowaway under subparagraph (C) on a
vessel or aircraft other than that on which the stow-
away arrived if any travel documents necessary for
departure or repatriation of the stowaway have been
obtained and removal of the stowaway will not be un-
reasonably delayed.
‘‘(3) REMOVAL UPON ORDER.—An owner, agent,
master, commanding officer, person in charge, purser,
or consignee of a vessel, aircraft, or other transpor-
tation line shall comply with an order of the Attorney
General to take on board, guard safely, and transport
to the destination specified any alien ordered to be re-
moved under this Act.
‘‘(e) PAYMENT OF EXPENSES OF REMOVAL.—
‘‘(1) COSTS OF REMOVAL AT TIME OF ARRIVAL.—
In the case of an alien who is a stowaway or who is
ordered removed either without a hearing under sec-
tion 235(a)(1) or 235(c) or pursuant to proceedings
under section 240 initiated at the time of such alien’s
arrival, the owner of the vessel or aircraft (if any) on
which the alien arrived in the United States shall
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Title III, Subtitle A
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pay the transportation cost of removing the alien. If
removal is on a vessel or aircraft not owned by the
owner of the vessel or aircraft on which the alien ar-
rived in the United States, the Attorney General
may—
‘‘(A) pay the cost from the appropriation
‘Immigration and Naturalization Service—Sala-
ries and Expenses’; and
‘‘(B) recover the amount of the cost in a
civil action from the owner, agent, or consignee
of the vessel or aircraft (if any) on which the
alien arrived in the United States.
‘‘(2) COSTS OF REMOVAL TO PORT OF REMOVAL
FOR ALIENS ADMITTED OR PERMITTED TO LAND.—In
the case of an alien who has been admitted or per-
mitted to land and is ordered removed, the cost (if
any) of removal of the alien to the port of removal
shall be at the expense of the appropriation for the en-
forcement of this Act.
‘‘(3) COSTS OF REMOVAL FROM PORT OF RE-
MOVAL
FOR
ALIENS
ADMITTED
OR
PERMITTED
TO
LAND.—
‘‘(A) THROUGH
APPROPRIATION.—Except
as provided in subparagraph (B), in the case of
an alien who has been admitted or permitted to
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Title III, Subtitle A
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land and is ordered removed, the cost (if any) of
removal of the alien from the port of removal
shall be at the expense of the appropriation for
the enforcement of this Act.
‘‘(B) THROUGH OWNER.—
‘‘(i) IN GENERAL.—In the case of an
alien described in clause (ii), the cost of re-
moval of the alien from the port of removal
may be charged to any owner of the vessel,
aircraft, or other transportation line by
which the alien came to the United States.
‘‘(ii) ALIENS
DESCRIBED.—An alien
described in this clause is an alien who—
‘‘(I) is admitted to the United
States (other than lawfully admitted
for permanent residence) and is or-
dered removed within 5 years of the
date of admission based on a ground
that existed before or at the time of ad-
mission, or
‘‘(II) is an alien crewman per-
mitted to land temporarily under sec-
tion 252 and is ordered removed with-
in 5 years of the date of landing.
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Title III, Subtitle A
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‘‘(C) COSTS
OF
REMOVAL
OF
CERTAIN
ALIENS GRANTED VOLUNTARY DEPARTURE.—In
the case of an alien who has been granted vol-
untary departure under section 240B and who is
financially unable to depart at the alien’s own
expense and whose removal the Attorney General
deems to be in the best interest of the United
States, the expense of such removal may be paid
from the appropriation for the enforcement of
this Act.
‘‘(f) ALIENS REQUIRING PERSONAL CARE DURING RE-
MOVAL.—
‘‘(1) IN GENERAL.—If the Attorney General be-
lieves that an alien being removed requires personal
care because of the alien’s mental or physical condi-
tion, the Attorney General may employ a suitable
person for that purpose who shall accompany and
care for the alien until the alien arrives at the final
destination.
‘‘(2) COSTS.—The costs of providing the service
described in paragraph (1) shall be defrayed in the
same manner as the expense of removing the accom-
panied alien is defrayed under this section.
‘‘(g) PLACES OF DETENTION.—
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Title III, Subtitle A
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‘‘(1) IN GENERAL.—The Attorney General shall
arrange for appropriate places of detention for aliens
detained pending removal or a decision on removal.
When United States Government facilities are un-
available or facilities adapted or suitably located for
detention are unavailable for rental, the Attorney
General may expend from the appropriation ‘Immi-
gration and Naturalization Service—Salaries and
Expenses’, without regard to section 3709 of the Re-
vised Statutes (41 U.S.C. 5), amounts necessary to
acquire land and to acquire, build, remodel, repair,
and operate facilities (including living quarters for
immigration officers if not otherwise available) nec-
essary for detention.
‘‘(2) DETENTION FACILITIES OF THE IMMIGRA-
TION AND NATURALIZATION SERVICE.—Prior to initi-
ating any project for the construction of any new de-
tention facility for the Service, the Commissioner
shall consider the availability for purchase or lease of
any existing prison, jail, detention center, or other
comparable facility suitable for such use.
‘‘(h) STATUTORY CONSTRUCTION.—Nothing in this
section shall be construed to create any substantive or proce-
dural right or benefit that is legally enforceable by any
534
Title III, Subtitle A
HR 2202 RH
party against the United States or its agencies or officers
or any other person.’’.
(b) MODIFICATION OF AUTHORITY.—
(1) Section 241(i), as redesignated by section
306(a)(1), is amended—
(A) in paragraph (3)(A) by striking ‘‘felony
and sentenced to a term of imprisonment’’ and
inserting ‘‘felony or two or more misdemeanors’’,
and
(B) by adding at the end the following new
paragraph:
‘‘(6) In this subsection, the term ‘incarceration’
includes imprisonment in a State or local prison or
jail the time of which is counted towards completion
of a sentence or the detention of an alien previously
convicted of a felony or misdemeanor who has been
arrested and is being held pending judicial action on
new charges or pending transfer to Federal custody.’’.
(2) The amendments made by paragraph (1)
shall apply beginning with fiscal year 1996.
(c) MISCELLANEOUS CONFORMING AMENDMENT.—Sec-
tion 212(a)(4) (8 U.S.C. 1182(a)(4)), as amended by section
621(a), is amended by striking ‘‘241(a)(5)(B)’’ each place
it appears and inserting ‘‘237(a)(5)(B)’’.
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Title III, Subtitle A
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SEC. 306. APPEALS FROM ORDERS OF REMOVAL (NEW SEC-
TION 242).
(a) IN GENERAL.—Section 242 (8 U.S.C. 1252) is
amended—
(1) by redesignating subsection (j) as subsection
(i) and by moving such subsection and adding it at
the end of section 241, as inserted by section
305(a)(3); and
(2) by amending the remainder of section 242 to
read as follows:
‘‘JUDICIAL REVIEW OF ORDERS OF REMOVAL
‘‘SEC. 242. (a) APPLICABLE PROVISIONS.—
‘‘(1) GENERAL ORDERS OF REMOVAL.—Judicial
review of a final order of removal (other than an
order of removal without a hearing pursuant to sec-
tion 235(b)(1)) is governed only by chapter 158 of
title 28 of the United States Code, except as provided
in subsection (b) and except that the court may not
order the taking of additional evidence under section
2347(c) of such title.
‘‘(2) LIMITATIONS ON REVIEW RELATING TO SEC-
TION 235(b)(1).—Notwithstanding any other provision
of law, no court shall have jurisdiction to review—
‘‘(A) except as provided in subsection (f),
any individual determination or to entertain
any other cause or claim arising from or relat-
536
Title III, Subtitle A
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ing to the implementation or operation of an
order of removal pursuant to section 235(b)(1),
‘‘(B) a decision by the Attorney General to
invoke the provisions of such section,
‘‘(C) the application of such section to indi-
vidual aliens, including the determination made
under section 235(b)(1)(B), or
‘‘(D) procedures and policies adopted by the
Attorney General to implement the provisions of
section 235(b)(1).
‘‘(3) TREATMENT OF CERTAIN DECISIONS.—No
alien shall have a right to appeal from a decision of
an immigration judge which is based solely on a cer-
tification described in section 240(c)(1)(B).
‘‘(b) REQUIREMENTS FOR ORDERS OF REMOVAL.—
With respect to review of an order of removal under sub-
section (a)(1), the following requirements apply:
‘‘(1) DEADLINE.—The petition for review must
be filed not later than 30 days after the date of the
final order of removal.
‘‘(2) VENUE AND FORMS.—The petition for re-
view shall be filed with the court of appeals for the
judicial circuit in which the immigration judge com-
pleted the proceedings. The record and briefs do not
have to be printed. The court of appeals shall review
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Title III, Subtitle A
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the proceeding on a typewritten record and on type-
written briefs.
‘‘(3) SERVICE.—
‘‘(A) IN GENERAL.—The respondent is the
Attorney General. The petition shall be served on
the Attorney General and on the officer or em-
ployee of the Service in charge of the Service dis-
trict in which the initial proceedings under sec-
tion 240 were conducted.
‘‘(B) STAY OF ORDER.—
‘‘(i) IN GENERAL.—Except as provided
in clause (ii), service of the petition on the
officer or employee stays the removal of an
alien pending the court’s decision on the pe-
tition, unless the court orders otherwise.
‘‘(ii) EXCEPTION.—If the alien has
been convicted of an aggravated felony, or
the alien has been ordered removed pursu-
ant to a finding that the alien is inadmis-
sible under section 212, service of the peti-
tion does not stay the removal unless the
court orders otherwise.
‘‘(4) DECISION.—Except as provided in para-
graph (5)(B)—
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Title III, Subtitle A
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‘‘(A) the court of appeals shall decide the
petition only on the administrative record on
which the order of removal is based,
‘‘(B) the administrative findings of fact are
conclusive if supported by reasonable, substan-
tial, and probative evidence on the record consid-
ered as a whole, and
‘‘(C) a decision that an alien is not eligible
for admission to the United States is conclusive
unless manifestly contrary to law.
‘‘(5) TREATMENT OF NATIONALITY CLAIMS.—
‘‘(A) COURT DETERMINATION IF NO ISSUE
OF FACT.—If the petitioner claims to be a na-
tional of the United States and the court of ap-
peals finds from the pleadings and affidavits
that no genuine issue of material fact about the
petitioner’s nationality is presented, the court
shall decide the nationality claim.
‘‘(B) TRANSFER IF ISSUE OF FACT.—If the
petitioner claims to be a national of the United
States and the court of appeals finds that a gen-
uine issue of material fact about the petitioner’s
nationality is presented, the court shall transfer
the proceeding to the district court of the United
States for the judicial district in which the peti-
539
Title III, Subtitle A
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tioner resides for a new hearing on the national-
ity claim and a decision on that claim as if an
action had been brought in the district court
under section 2201 of title 28, United States
Code.
‘‘(C) LIMITATION ON DETERMINATION.—The
petitioner may have such nationality claim de-
cided only as provided in this paragraph.
‘‘(6) CONSOLIDATION WITH REVIEW OF MOTIONS
TO
REOPEN
OR
RECONSIDER.—When a petitioner
seeks review of an order under this section, any re-
view sought of a motion to reopen or reconsider the
order shall be consolidated with the review of the
order.
‘‘(7) CHALLENGE TO VALIDITY OF ORDERS IN
CERTAIN CRIMINAL PROCEEDINGS.—
‘‘(A) IN GENERAL.—If the validity of an
order of removal has not been judicially decided,
a defendant in a criminal proceeding charged
with violating section 243(a) may challenge the
validity of the order in the criminal proceeding
only by filing a separate motion before trial. The
district court, without a jury, shall decide the
motion before trial.
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Title III, Subtitle A
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‘‘(B) CLAIMS OF UNITED STATES NATIONAL-
ITY.—If the defendant claims in the motion to be
a national of the United States and the district
court finds that—
‘‘(i) no genuine issue of material fact
about the defendant’s nationality is pre-
sented, the court shall decide the motion
only on the administrative record on which
the removal order is based and the adminis-
trative findings of fact are conclusive if
supported by reasonable, substantial, and
probative evidence on the record considered
as a whole; or
‘‘(ii) a genuine issue of material fact
about the defendant’s nationality is pre-
sented, the court shall hold a new hearing
on the nationality claim and decide that
claim as if an action had been brought
under section 2201 of title 28, United States
Code.
The defendant may have such nationality claim
decided only as provided in this subparagraph.
‘‘(C) CONSEQUENCE OF INVALIDATION.—If
the district court rules that the removal order is
invalid, the court shall dismiss the indictment
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Title III, Subtitle A
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for violation of section 243(a). The United States
Government may appeal the dismissal to the
court of appeals for the appropriate circuit with-
in 30 days after the date of the dismissal.
‘‘(D) LIMITATION ON FILING PETITIONS FOR
REVIEW.—The defendant in a criminal proceed-
ing under section 243(a) may not file a petition
for review under subsection (a) during the crimi-
nal proceeding.
‘‘(8) CONSTRUCTION.—This subsection—
‘‘(A) does not prevent the Attorney General,
after a final order of removal has been issued,
from detaining the alien under section 241(a);
‘‘(B) does not relieve the alien from comply-
ing with section 241(a)(4) and section 243(g);
and
‘‘(C) except as provided in paragraph (3),
does not require the Attorney General to defer re-
moval of the alien.
‘‘(c) REQUIREMENTS FOR PETITION.—A petition for
review or for habeas corpus of an order of removal shall
state whether a court has upheld the validity of the order,
and, if so, shall state the name of the court, the date of
the court’s ruling, and the kind of proceeding.
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‘‘(d) REVIEW OF FINAL ORDERS.—A court may review
a final order of removal only if—
‘‘(1) the alien has exhausted all administrative
remedies available to the alien as of right, and
‘‘(2) another court has not decided the validity
of the order, unless the reviewing court finds that the
petition presents grounds that could not have been
presented in the prior judicial proceeding or that the
remedy provided by the prior proceeding was inad-
equate or ineffective to test the validity of the order.
‘‘(e) LIMITED REVIEW FOR NON-PERMANENT RESI-
DENTS CONVICTED OF AGGRAVATED FELONIES.—
‘‘(1) IN GENERAL.—A petition for review filed by
an alien against whom a final order of removal has
been issued under section 238 may challenge only
whether—
‘‘(A) the alien is the alien described in the
order,
‘‘(B) the alien is an alien described in sec-
tion 238(b)(2) and has been convicted after entry
into the United States of an aggravated felony,
and
‘‘(C) proceedings against the alien complied
with section 238(b)(4).
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Title III, Subtitle A
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‘‘(2) LIMITED JURISDICTION.—A court reviewing
the petition has jurisdiction only to review the issues
described in paragraph (1).
‘‘(f) JUDICIAL REVIEW OF ORDERS UNDER SECTION
235(b)(1).—
‘‘(1) APPLICATION.—The provisions of this sub-
section apply with respect to judicial review of orders
of removal effected under section 235(b)(1).
‘‘(2) LIMITATIONS ON RELIEF.—Regardless of the
nature of the action or claim and regardless of the
identity of the party or parties bringing the action,
no court shall have jurisdiction or authority to enter
declaratory, injunctive, or other equitable relief not
specifically authorized in this subsection, or to certify
a class under Rule 23 of the Federal Rules of Civil
Procedure.
‘‘(3) LIMITATION TO HABEAS CORPUS.—Judicial
review of any matter, cause, claim, or individual de-
termination made or arising under or pertaining to
section 235(b)(1) shall only be available in habeas
corpus proceedings, and shall be limited to determina-
tions of—
‘‘(A) whether the petitioner is an alien,
‘‘(B) whether the petitioner was ordered re-
moved under such section, and
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Title III, Subtitle A
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‘‘(C) whether the petitioner can prove by a
preponderance of the evidence that the petitioner
is an alien lawfully admitted for permanent res-
idence and is entitled to such further inquiry as
prescribed by the Attorney General pursuant to
section 235(b)(1)(C).
‘‘(4) DECISION.—In any case where the court de-
termines that the petitioner—
‘‘(A) is an alien who was not ordered re-
moved under section 235(b)(1), or
‘‘(B) has demonstrated by a preponderance
of the evidence that the alien is a lawful perma-
nent resident,
the court may order no remedy or relief other than
to require that the petitioner be provided a hearing
in accordance with section 240. Any alien who is pro-
vided a hearing under section 240 pursuant to this
paragraph may thereafter obtain judicial review of
any resulting final order of removal pursuant to sub-
section (a)(1).
‘‘(5) SCOPE OF INQUIRY.—In determining wheth-
er an alien has been ordered removed under section
235(b)(1), the court’s inquiry shall be limited to
whether such an order in fact was issued and whether
it relates to the petitioner. There shall be no review
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Title III, Subtitle A
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of whether the alien is actually inadmissible or enti-
tled to any relief from removal.
‘‘(g) LIMIT ON INJUNCTIVE RELIEF.—Regardless of the
nature of the action or claim or of the identity of the party
or parties bringing the action, no court (other than the Su-
preme Court) shall have jurisdiction or authority to enjoin
or restrain the operation of the provisions of chapter 4 of
title II, as amended by the Immigration in the National
Interest Act of 1995, other than with respect to the applica-
tion of such provisions to an individual alien against whom
proceedings under such chapter have been initiated.’’.
(b) REPEAL OF SECTION 106.—Section 106 (8 U.S.C.
1105a) is repealed.
SEC. 307. PENALTIES RELATING TO REMOVAL (REVISED
SECTION 243).
(a) IN GENERAL.—Section 243 (8 U.S.C. 1253) is
amended to read as follows:
‘‘PENALTIES RELATED TO REMOVAL
‘‘SEC. 243. (a) PENALTY FOR FAILURE TO DEPART.—
‘‘(1) IN GENERAL.—Any alien against whom a
final order of removal is outstanding by reason of
being a member of any of the classes described in sec-
tion 237(a), who—
‘‘(A) willfully fails or refuses to depart from
the United States within a period of 90 days
from the date of the final order of removal under
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administrative processes, or if judicial review is
had, then from the date of the final order of the
court,
‘‘(B) willfully fails or refuses to make time-
ly application in good faith for travel or other
documents necessary to the alien’s departure,
‘‘(C) connives or conspires, or takes any
other action, designed to prevent or hamper or
with the purpose of preventing or hampering the
alien’s departure pursuant to such, or
‘‘(D) willfully fails or refuses to present
himself or herself for removal at the time and
place required by the Attorney General pursuant
to such order,
shall be fined under title 18, United States Code, or
imprisoned not more than four years (or 10 years if
the alien is a member of any of the classes described
in paragraph (1)(E), (2), (3), or (4) of section
237(a)), or both.
‘‘(2) EXCEPTION.—It is not a violation of para-
graph (1) to take any proper steps for the purpose of
securing cancellation of or exemption from such order
of removal or for the purpose of securing the alien’s
release from incarceration or custody.
547
Title III, Subtitle A
HR 2202 RH
‘‘(3) SUSPENSION.—The court may for good
cause suspend the sentence of an alien under this sub-
section and order the alien’s release under such condi-
tions as the court may prescribe. In determining
whether good cause has been shown to justify releasing
the alien, the court shall take into account such fac-
tors as—
‘‘(A) the age, health, and period of detention
of the alien;
‘‘(B) the effect of the alien’s release upon the
national security and public peace or safety;
‘‘(C) the likelihood of the alien’s resuming
or following a course of conduct which made or
would make the alien deportable;
‘‘(D) the character of the efforts made by
such alien himself and by representatives of the
country or countries to which the alien’s removal
is directed to expedite the alien’s departure from
the United States;
‘‘(E) the reason for the inability of the Gov-
ernment of the United States to secure passports,
other travel documents, or removal facilities from
the country or countries to which the alien has
been ordered removed; and
548
Title III, Subtitle A
HR 2202 RH
‘‘(F) the eligibility of the alien for discre-
tionary relief under the immigration laws.
‘‘(b) WILLFUL FAILURE TO COMPLY WITH TERMS OF
RELEASE UNDER SUPERVISION.—An alien who shall will-
fully fail to comply with regulations or requirements issued
pursuant to section 241(a)(3) or knowingly give false infor-
mation in response to an inquiry under such section shall
be fined not more than $1,000 or imprisoned for not more
than one year, or both.
‘‘(c) PENALTIES RELATING
TO VESSELS
AND AIR-
CRAFT.—
‘‘(1) CIVIL PENALTIES.—
‘‘(A) FAILURE TO CARRY OUT CERTAIN OR-
DERS.—If the Attorney General is satisfied that
a person has violated subsection (d) or (e) of sec-
tion 241, the person shall pay to the Commis-
sioner the sum of $2,000 for each violation.
‘‘(B) FAILURE
TO
REMOVE
ALIEN
STOW-
AWAYS.—If the Attorney General is satisfied that
a person has failed to remove an alien stowaway
as required under section 241(d)(2), the person
shall pay to the Commissioner the sum of $5,000
for each alien stowaway not removed.
587
Title III, Subtitle B
HR 2202 RH
‘‘CONSIDERATION OF APPLICATION
‘‘SEC. 504. (a) IN GENERAL.—In the case of an appli-
cation under section 503 to the special removal court, a sin-
gle judge of the court shall be assigned to consider the appli-
cation. The judge, in accordance with the rules of the court,
shall consider the application and may consider other infor-
mation, including classified information, presented under
oath or affirmation. The judge shall consider the applica-
tion (and any hearing thereof) in camera and ex parte. A
verbatim record shall be maintained of any such hearing.
‘‘(b) APPROVAL OF ORDER.—The judge shall enter ex
parte the order requested in the application if the judge
finds, on the basis of such application and such other infor-
mation (if any), that there is probable cause to believe
that—
‘‘(1) the alien who is the subject of the applica-
tion has been correctly identified and is an alien ter-
rorist, and
‘‘(2) adherence to the provisions of title II re-
garding the removal of the identified alien would pose
a risk to the national security of the United States.
‘‘(c) DENIAL OF ORDER.—If the judge denies the order
requested in the application, the judge shall prepare a writ-
ten statement of the judge’s reasons for the denial.
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Title VI, Subtitle C
HR 2202 RH
a spouse or parent or by a member of the spouse
or parent’s family residing in the same house-
hold as the applicant and the spouse or parent
consented or acquiesced to such battery or cru-
elty, or
‘‘(ii) the applicant’s child has been battered
or subject to extreme cruelty in the United States
by the applicant’s spouse or parent (without the
active participation of the applicant in the bat-
tery or extreme cruelty), or by a member of the
spouse or parent’s family residing in the same
household as the applicant when the spouse or
parent consented or acquiesced to and the appli-
cant did not actively participate in such battery
or cruelty;
‘‘(B) such battery or cruelty has led to the issu-
ance of an order of a judge or an administrative law
judge or a prior determination of the Service; and
‘‘(C) the need for the public benefits received as
to which amounts are owing had a substantial con-
nection to the battery or cruelty described in subpara-
graph (A).’’.
(d) CLERICAL AMENDMENT.—The table of contents is
amended by inserting after the item relating to section 213
the following:
‘‘Sec. 213A.
Requirements for sponsor’s affidavit of support.’’.
806
Title VIII, Subtitle A
HR 2202 RH
‘‘(iii) Clause (ii) shall not apply to an employ-
er’s placement of an H–1B nonimmigrant with an-
other employer if—
‘‘(I) the other employer has executed an at-
testation that it, within the period beginning 6
months before and ending 90 days following the
date of filing of the application or during the 90
days immediately preceding and following the
date of filing of any visa petition supported by
the application, has not laid off and will not lay
off any protected individual with substantially
equivalent qualifications and experience in the
specific employment as to which the H–1B non-
immigrant is being sought or is employed, or
‘‘(II) the employer pays a wage to the non-
immigrant that is at least 110 percent of the
arithmetic mean of the last wage earned by all
such laid off individuals (or, if greater, at least
110 percent of the arithmetic mean of the highest
wage earned by all such laid off individuals
within the most recent year if the other employer
reduced the wage of any such laid off individual
during such year other than in accordance with
a general company-wide reduction of wages for
substantially all employees).
824
Title VIII, Subtitle C
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(A) by striking ‘‘APPLICATION’’ and all that
follows through ‘‘This’’ and inserting ‘‘APPLICA-
BILITY
OF
TRANSMISSION
REQUIREMENTS.—
This’’;
(B) by striking ‘‘any residency or other re-
tention requirements for’’ and inserting ‘‘the ap-
plication of any provision of law relating to resi-
dence or physical presence in the United States
for purposes of transmitting United States’’; and
(C) by striking ‘‘as in effect’’ and all that
follows through the end and inserting ‘‘to any
person whose claim is based on the amendment
made by subsection (a) or through whom such a
claim is derived.’’.
(2) Section 102 of INTCA is amended by adding
at the end the following new subsection:
‘‘(e) TRANSITION.—In applying the amendment made
by subsection (a) to children born before November 14, 1986,
any reference in the matter inserted by such amendment
to ‘five years, at least two of which’ is deemed a reference
to ‘10 years, at least 5 of which’.’’.
(3) Section 351(a) (8 U.S.C. 1483(a)), as
amended by section 105(a)(2)(A) of INTCA, is
amended by striking the comma after ‘‘nationality’’.