< Back to H.R. 1645 (110th Congress, 2007–2009)

Text of the Security Through Regularized Immigration and a Vibrant Economy Act of 2007

This bill was introduced on March 22, 2007, in a previous session of Congress, but was not enacted. The text of the bill below is as of Mar 22, 2007 (Introduced).

Download PDF

Source: GPO

I

110th CONGRESS

1st Session

H. R. 1645

IN THE HOUSE OF REPRESENTATIVES

March 22, 2007

(for himself, Mr. Flake, Mr. Baca, Mr. Lincoln Diaz-Balart of Florida, Mr. Emanuel, Mr. Radanovich, Ms. Jackson-Lee of Texas, Mr. LaHood, Mr. Crowley, Mr. Mario Diaz-Balart of Florida, Ms. Giffords, Ms. Ros-Lehtinen, Ms. Schakowsky, Mr. Fortuño, Mr. Becerra, Mr. Cardoza, Mr. Cuellar, Mr. Gonzalez, Mr. Grijalva, Mr. Hinojosa, Mrs. Napolitano, Mr. Ortiz, Mr. Pastor, Mr. Reyes, Mr. Rodriguez, Ms. Roybal-Allard, Mr. Salazar, Mr. Serrano, Mr. Sires, and Ms. Solis) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Homeland Security, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL

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

1.

Short title; table of contents

(a)

Short Title

This Act may be cited as the Security Through Regularized Immigration and a Vibrant Economy Act of 2007 or as the STRIVE Act of 2007.

(b)

Table of Contents

The table of contents for this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Reference to the Immigration and Nationality Act.

Sec. 3. Definitions.

Sec. 4. Severability.

Sec. 5. Certification requirements prior to implementation of the New Worker Program and the conditional nonimmigrant classification.

Title I—BORDER ENFORCEMENT

Subtitle A—Assets for Controlling United States Borders

Sec. 101. Enforcement personnel.

Sec. 102. Technological assets.

Sec. 103. Infrastructure.

Sec. 104. Ports of entry.

Sec. 105. Secure communication.

Sec. 106. Unmanned aerial vehicles.

Sec. 107. Surveillance technologies programs.

Subtitle B—Border Security Plans, Strategies, and Reports

Sec. 111. Surveillance plan.

Sec. 112. National Strategy for Border Security.

Sec. 113. Reports on improving the exchange of information on North American security.

Sec. 114. Border Patrol training capacity review.

Sec. 115. Secure Border Initiative financial accountability.

Subtitle C—Southern Border Security

Sec. 121. Improving the security of Mexico’s southern border.

Sec. 122. Report on deaths at the United States-Mexico border.

Sec. 123. Cooperation with the Government of Mexico.

Sec. 124. Temporary National Guard support for securing the southern land border of the United States.

Sec. 125. United States-Mexico Border Enforcement Review Commission.

Subtitle D—Secure Entry Initiatives

Sec. 131. Biometric data enhancements.

Sec. 132. US–VISIT System.

Sec. 133. Document fraud detection.

Sec. 134. Improved document integrity.

Sec. 135. Biometric entry-exit system.

Sec. 136. Evasion of inspection or violation of arrival, reporting, entry, or clearance requirements.

Subtitle E—Law Enforcement Relief for States

Sec. 141. Border relief grant program.

Sec. 142. Northern and southern border prosecution initiative.

Subtitle F—Rapid Response Measures

Sec. 151. Deployment of Border Patrol agents.

Sec. 152. Border Patrol major assets.

Sec. 153. Electronic equipment.

Sec. 154. Personal equipment.

Sec. 155. Authorization of appropriations.

Subtitle G—Border Infrastructure and Technology Modernization

Sec. 161. Definitions.

Sec. 162. Port of Entry Infrastructure Assessment Study.

Sec. 163. National Land Border Security Plan.

Sec. 164. Expansion of commerce security programs.

Sec. 165. Port of entry technology demonstration program.

Sec. 166. Authorization of appropriations.

Subtitle H—Safe and Secure Detention

Sec. 171. Definitions.

Sec. 172. Recording secondary inspection interviews.

Sec. 173. Procedures governing detention decisions.

Sec. 174. Legal orientation program.

Sec. 175. Conditions of detention.

Sec. 176. Office of Detention Oversight.

Sec. 177. Secure alternatives program.

Sec. 178. Less restrictive detention facilities.

Sec. 179. Authorization of appropriations; effective date.

Subtitle I—Other Border Security Initiatives

Sec. 181. Combating human smuggling.

Sec. 182. Screening of municipal solid waste.

Sec. 183. Border security on certain Federal land.

Title II—Interior Enforcement

Subtitle A—Reducing the number of illegal aliens in the United States

Sec. 201. Incarceration of criminal aliens.

Sec. 202. Encouraging aliens to depart voluntarily.

Sec. 203. Deterring aliens ordered removed from remaining in the United States unlawfully.

Sec. 204. Prohibition of the sale of firearms to, or the possession of firearms by certain aliens.

Sec. 205. Uniform statute of limitations for certain Immigration, naturalization, and peonage offenses.

Sec. 206. Expedited removal.

Sec. 207. Field agent allocation.

Sec. 208. Streamlined processing of background checks conducted for immigration benefit applications and petitions.

Sec. 209. State criminal alien assistance program.

Sec. 210. Transportation and processing of illegal aliens apprehended by State and local law enforcement officers.

Sec. 211. Reducing illegal immigration and alien smuggling on tribal lands.

Sec. 212. Mandatory address reporting requirements.

Sec. 213. State and local Enforcement of Federal Immigration laws.

Sec. 214. Increased criminal penalties related to drunk driving.

Sec. 215. Law enforcement authority of States and political subdivisions and transfer to Federal custody.

Sec. 216. Laundering of monetary instruments.

Sec. 217. Increase of Federal detention space and the utilization of facilities identified for closures as a result of the Defense Base Closure Realignment Act of 1990.

Sec. 218. Determination of immigration status of individuals charged with Federal offenses.

Sec. 219. Expansion of the Justice Prisoner and Alien Transfer System.

Sec. 220. Cancellation of visas.

Subtitle B—Passport and visa security

Sec. 221. Reform of passport fraud offenses.

Sec. 222. Other immigration reforms.

Subtitle C—Detention and removal of aliens who illegally enter or remain in the United States

Sec. 231. Detention and removal of aliens ordered removed.

Sec. 232. Increased criminal penalties for immigration violations.

Sec. 233. Aggravated felony.

Sec. 234. Increased criminal penalties related to gang violence, removal, and alien smuggling.

Sec. 235. Illegal entry.

Sec. 236. Illegal reentry.

Title III—Employment Verification

Sec. 301. Employment verification.

Sec. 302. Clarification of ineligibility for misrepresentation.

Sec. 303. Antidiscrimination protections.

Sec. 304. Additional protections.

Sec. 305. Additional worksite enforcement and fraud detection agents.

Sec. 306. Amendments to the Social Security Act and the Internal Revenue Code.

Title IV—New worker program

Sec. 401. Nonimmigrant worker.

Sec. 402. Admission of nonimmigrant workers.

Sec. 403. Employer obligations.

Sec. 404. Alien employment management system.

Sec. 405. Recruitment of United States workers.

Sec. 406. Numerical limitations.

Sec. 407. Adjustment to lawful permanent resident status.

Sec. 408. Requirements for participating countries.

Sec. 409. Compliance investigators.

Sec. 410. Standing commission on immigration and labor markets.

Sec. 411. Admission of nonimmigrants.

Sec. 412. Agency representation and coordination.

Sec. 413. Sense of Congress regarding personal protective equipment.

Sec. 414. Rulemaking; effective date.

Sec. 415. Authorization of appropriations.

Title V—Visa Reforms

Subtitle A—Backlog Reduction

Sec. 501. Elimination of existing backlogs.

Sec. 502. Increasing country limits and exempting family-sponsored and employment-based immigrants.

Sec. 503. Allocation of immigrant visas.

Sec. 504. Nursing shortage.

Sec. 505. Expedited adjudication of employer petitions for aliens of extraordinary artistic ability.

Sec. 506. Powerline workers and boilermakers.

Sec. 507. H–1B visas.

Sec. 508. United States educated immigrants.

Sec. 509. Student visa reform.

Sec. 510. L–1 visa holders subject to visa backlog.

Sec. 511. Retaining workers subject to green card backlog.

Sec. 512. Streamlining the adjudication process for established employers.

Sec. 513. Providing premium processing of Employment-Based visa petitions.

Sec. 514. Eliminating procedural delays in labor certification process.

Sec. 515. Visa revalidation.

Sec. 516. Relief for minor children and widows.

Sec. 517. Relief for widows and orphans.

Sec. 518. Sons and daughters of Filipino World War II veterans.

Sec. 519. Determinations under the Haitian Refugee Immigration Fairness Act of 1998.

Sec. 520. S visas.

Sec. 521. L visa limitations.

Sec. 522. Establishment of new fashion model nonimmigrant classification.

Sec. 523. EB–5 regional center program.

Sec. 524. Return of Talent Program.

Subtitle B—Preservation of Immigration Benefits for Victims of a Major Disaster or Emergency

Sec. 531. Short title.

Sec. 532. Definitions.

Sec. 533. Special immigrant status.

Sec. 534. Extension of filing or reentry deadlines.

Sec. 535. Humanitarian relief for certain surviving spouses and children.

Sec. 536. Recipient of public benefits.

Sec. 537. Age-out protection.

Sec. 538. Employment eligibility verification.

Sec. 539. Naturalization.

Sec. 540. Discretionary authority.

Sec. 541. Evidentiary standards and regulations.

Sec. 542. Identification documents.

Sec. 543. Waiver of regulations.

Sec. 544. Notices of change of address.

Sec. 545. Foreign students and exchange program participants.

Title VI—Legalization of undocumented individuals

Subtitle A—Conditional nonimmigrants

Sec. 601. Conditional nonimmigrants.

Sec. 602. Adjustment of status for conditional nonimmigrants.

Sec. 603. Administrative and judicial review.

Sec. 604. Mandatory disclosure of information.

Sec. 605. Penalties for false statements in applications.

Sec. 606. Aliens not subject to direct numerical limitations.

Sec. 607. Employer protections.

Sec. 608. Limitations on eligibility.

Sec. 609. Rulemaking.

Sec. 610. Authorization of appropriations.

Subtitle B—DREAM Act of 2007

Sec. 621. Short title.

Sec. 622. Definitions.

Sec. 623. Restoration of State option to determine residency for purposes of higher education benefits.

Sec. 624. Cancellation of removal and adjustment of status of certain long-term residents who entered the United States as children.

Sec. 625. Conditional permanent resident status.

Sec. 626. Retroactive benefits under this Act.

Sec. 627. Exclusive jurisdiction.

Sec. 628. Penalties for false statements in application.

Sec. 629. Confidentiality of information.

Sec. 630. Expedited processing of applications; prohibition on fees.

Sec. 631. Higher education assistance.

Sec. 632. GAO report.

Subtitle C—AgJOBS Act of 2007

Sec. 641. Short title.

Sec. 642. Definitions.

Chapter 1—Pilot Program for Earned Status Adjustment of Agricultural Workers

Subchapter A—Blue card status

Sec. 643. Requirements for blue card status.

Sec. 644. Treatment of aliens granted blue card status.

Sec. 645. Adjustment to permanent residence.

Sec. 646. Applications.

Sec. 647. Waiver of numerical limitations and certain grounds for inadmissibility.

Sec. 648. Administrative and judicial review.

Sec. 649. Use of information.

Sec. 650. Regulations, effective date, authorization of appropriations.

Subchapter B—Correction of Social Security Records

Sec. 651. Correction of Social Security records.

Chapter 2—Reform of H–2A Worker Program

Sec. 652. Amendment to the Immigration and Nationality Act.

Chapter 3—Miscellaneous Provisions

Sec. 653. Determination and use of user fees.

Sec. 654. Regulations.

Sec. 655. Reports to Congress.

Sec. 656. Effective date.

Subtitle D—Programs to assist nonimmigrant workers

Sec. 661. Grants to support public education and community training.

Sec. 662. Grant program to assist applicants for naturalization.

Sec. 663. Strengthening American citizenship.

Sec. 664. Addressing poverty in Mexico.

Title VII—MISCELLANEOUS

Subtitle A—Increasing Court Personnel

Sec. 701. Additional immigration personnel.

Sec. 702. Senior judge participation in the selection of magistrates.

Sec. 703. Study on the appellate process for immigration appeals.

Sec. 704. Sense of Congress regarding the establishment of an immigration court system.

Subtitle B—Citizenship assistance for members of the Armed Services

Sec. 711. Waiver of requirement for fingerprints for members of the Armed Forces.

Sec. 712. Noncitizen membership in the Armed Forces.

Sec. 713. Provision of information on naturalization to members of the Armed Forces.

Sec. 714. Provision of information on naturalization to the public.

Sec. 715. Reports.

Subtitle C—Family Humanitarian Relief

Sec. 721. Adjustment of status for certain nonimmigrant victims of terrorism.

Sec. 722. Cancellation of removal for certain immigrant victims of terrorism.

Sec. 723. Exceptions.

Sec. 724. Evidence of death.

Sec. 725. Definitions.

Subtitle D—Other Matters

Sec. 731. Office of Internal Corruption Investigation.

Sec. 732. Adjustment of status for certain persecuted religious minorities.

Sec. 733. Eligibility of agricultural and forestry workers for certain legal assistance.

Sec. 734. State court interpreter grants.

Sec. 735. Adequate notice for alternate country of removal.

Sec. 736. Standards for biometric documents.

Sec. 737. State Impact Assistance Account.

Sec. 738. New Worker Program and Conditional Nonimmigrant Fee Account.

2.

Reference to the Immigration and Nationality Act

Except as otherwise expressly provided, whenever in this Act an amendment or repeal is expressed in terms of an amendment to, or repeal of, a section or other provision, the reference shall be considered to be made to a section or other provision of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).

3.

Definitions

In this Act:

(1)

Department

Except as otherwise provided, the term Department means the Department of Homeland Security.

(2)

Secretary

Except as otherwise provided, the term Secretary means the Secretary of Homeland Security.

4.

Severability

If any provision of this Act, any amendment made by this Act, or the application of such provision or amendment to any person or circumstance is held to be invalid for any reason, the remainder of this Act, the amendments made by this Act, and the application of the provisions of such to any other person or circumstance shall not be affected by such holding.

5.

Certification requirements prior to implementation of the New Worker Program and the conditional nonimmigrant classification

Notwithstanding any other provision of this Act, the Secretary may not implement the New Worker Program established in the amendments made by title IV or grant conditional nonimmigrant classification under the amendments made by title VI prior to the date that the Secretary submits to the President and Congress a certification that the following conditions have been met:

(1)

Secure border

The Secretary has submitted to Congress a report on the status of the implementation of the border surveillance technology improvements described in the Secure Border Initiative, including target dates for the completion of such improvements.

(2)

Secure documents

That the systems and infrastructure necessary to carry out the improvements to immigration document security required by this Act and the amendments made by this Act, including documents that will be issued under the New Worker Program and to aliens granted conditional nonimmigrant classification, have been developed, tested for reliability and accuracy, and are ready for use, including systems and infrastructure necessary to permit the Director of the Federal Bureau of Investigation to conduct required background checks.

(3)

First phase implementation of the electronic employment eligibility verification system

The first phase of the Electronic Employment Verification System described in section 274A of the Immigration and Nationality Act, as amended by section 301 of this Act, for critical infrastructure employers described in subsection (c)(10)(i) of such section 274A has been implemented.

I

BORDER ENFORCEMENT

A

Assets for Controlling United States Borders

101.

Enforcement personnel

(a)

Port of entry inspectors

(1)

Additional inspectors

In each of the fiscal years 2008 through 2012, the Secretary shall, subject to the availability of appropriations, increase by not less than 500 the number of positions for full-time active duty port of entry inspectors and provide appropriate training, equipment, and support to such additional inspectors.

(2)

Authorization of appropriations

There are authorized to be appropriated to the Secretary such sums as may be necessary for each of the fiscal years 2008 through 2012 to carry out paragraph (1).

(b)

Border Patrol agents

Section 5202 of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108–458; 118 Stat. 3734) is amended to read as follows:

5202.

Increase in Full-Time Border Patrol agents

(a)

Annual Increases

The Secretary of Homeland Security shall, subject to the availability of appropriations for such purpose, increase the number of positions for full-time active-duty Border Patrol agents within the Department of Homeland Security (above the number of such positions for which funds were appropriated for the preceding fiscal year), by—

(1)

2,000 in fiscal year 2008;

(2)

2,400 in fiscal year 2009;

(3)

2,400 in fiscal year 2010;

(4)

2,400 in fiscal year 2011; and

(5)

2,400 in fiscal year 2012.

(b)

Northern Border

In each of the fiscal years 2008 through 2012, in addition to the Border Patrol agents assigned along the northern border of the United States during the previous fiscal year, the Secretary shall assign a number of Border Patrol agents equal to not less than 20 percent of the net increase in Border Patrol agents during each such fiscal year.

(c)

Authorization of Appropriations

There are authorized to be appropriated such sums as may be necessary for each of fiscal years 2008 through 2012 to carry out this section.

.

(c)

Investigative personnel

(1)

Immigration and customs enforcement investigators

Section 5203 of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108–458; 118 Stat. 3734) is amended by striking 800 and inserting 1000.

(2)

Additional personnel

In addition to the positions authorized under section 5203 of the Intelligence Reform and Terrorism Prevention Act of 2004, as amended by paragraph (1), during each of the fiscal years 2008 through 2012, the Secretary shall, subject to the availability of appropriations, increase by not less than 200 the number of positions for personnel within the Department assigned to investigate alien smuggling.

(3)

Authorization of appropriations

There are authorized to be appropriated to the Secretary such sums as may be necessary for each of the fiscal years 2008 through 2012 to carry out this section.

(d)

Deputy United States Marshals

(1)

Additional United States Marshals

In each of the fiscal years 2008 through 2012, the Attorney General shall, subject to the availability of appropriations, increase by not less than 50 the number of positions for full-time active duty Deputy United States Marshals that investigate criminal matters related to immigration.

(2)

Authorization of appropriations

There are authorized to be appropriated to the Attorney General such sums as may be necessary for each of the fiscal years 2008 through 2012 to carry out paragraph (1).

(e)

Recruitment of former members of the Armed Forces and members of reserve components of the Armed Forces

(1)

Requirement for program

The Secretary, in conjunction with the Secretary of Defense, shall establish a program to actively recruit covered members or former members of the Armed Forces to serve in United States Customs and Border Protection.

(2)

Report on recruitment incentives

(A)

Requirement

Not later than 60 days after the date of enactment of this Act, the Secretary and the Secretary of Defense shall jointly submit to the appropriate committees of Congress a report assessing the desirability and feasibility of offering an incentive to a covered member or former member of the Armed Forces for the purpose of encouraging such member to serve in United States Customs and Border Protection. The Secretary and the Secretary of Defense shall assume that the cost of any such incentive shall be borne by the Secretary.

(B)

Content

The report required by subparagraph (A) shall include—

(i)

an assessment of the desirability and feasibility of offering any incentive, including a monetary incentive, that the Secretary and the Secretary of Defense jointly consider appropriate, regardless of whether such incentive is authorized by law or regulations on the date of enactment of this Act;

(ii)

a detailed assessment of the desirability and feasibility of such an incentive that would—

(I)

encourage service in United States Customs and Border Protection by a covered member or a former member of the Armed Forces who provided border patrol or border security assistance to United States Customs and Border Protection as part of the member's duties as a member of the Armed Forces; and

(II)

leverage military training and experience by accelerating training, or allowing credit to be applied to related areas of training, required for service with United States Customs and Border Protection;

(iii)

a description of various monetary and non-monetary incentives considered for purposes of the report;

(iv)

an assessment of the desirability and feasibility of utilizing any such incentive for the purpose described in subparagraph (A); and

(v)

any other matter that the Secretary and the Secretary of Defense jointly consider appropriate.

(3)

Definitions

In this subsection:

(A)

Appropriate Committees of Congress

The term appropriate committees of Congress means—

(i)

the Committee on Appropriations, the Committee on Armed Services, and the Committee on Homeland Security and Governmental Affairs of the Senate; and

(ii)

the Committee on Appropriations, the Committee on Armed Services, and the Committee on Homeland Security of the House of Representatives.

(B)

Covered member or former member of the Armed Forces

The term covered member or former member of the Armed Forces means an individual—

(i)

who is a member of a reserve component of the Armed Forces; or

(ii)

who is a former member of the Armed Forces within 2 years of separation from service in the Armed Forces.

102.

Technological assets

(a)

Increased Availability of Equipment

The Secretary and the Secretary of Defense shall develop and implement a plan to use authorities provided to the Secretary of Defense under chapter 18 of title 10, United States Code, to increase the availability and use of Department of Defense equipment, including unmanned aerial vehicles, tethered aerostat radars, and other surveillance equipment, to assist the Secretary in carrying out surveillance activities conducted at or near the international land borders of the United States to prevent illegal immigration.

(b)

Report

Not later than 6 months after the date of enactment of this Act, the Secretary and the Secretary of Defense shall submit to Congress a report that contains—

(1)

a description of the current use of Department of Defense equipment to assist the Secretary in carrying out surveillance of the international land borders of the United States and assessment of the risks to citizens of the United States and foreign policy interests associated with the use of such equipment;

(2)

the plan developed under subsection (b) to increase the use of Department of Defense equipment to assist such surveillance activities; and

(3)

a description of the types of equipment and other support to be provided by the Secretary of Defense under such plan during the 1-year period beginning on the date of the submission of the report.

(c)

Unmanned Aerial Vehicle Pilot Program

During the 1-year period beginning on the date on which the report is submitted under subsection (b), the Secretary shall conduct a pilot program to test unmanned aerial vehicles for border surveillance along the international border between Canada and the United States.

(d)

Construction

Nothing in this section may be construed as altering or amending the prohibition on the use of any part of the Army or the Air Force as a posse comitatus under section 1385 of title 18, United States Code.

(e)

Authorization of Appropriations

There are authorized to be appropriated to the Secretary such sums as may be necessary for each of the fiscal years 2008 through 2012 to carry out subsection (a).

103.

Infrastructure

(a)

Construction of border control facilities

Subject to the availability of appropriations, the Secretary shall construct all-weather roads and acquire additional vehicle barriers and facilities necessary to achieve operational control of the international borders of the United States.

(b)

Authorization of Appropriations

There are authorized to be appropriated to the Secretary such sums as may be necessary for each of the fiscal years 2008 through 2012 to carry out subsection (a).

104.

Ports of entry

The Secretary is authorized to—

(1)

construct additional ports of entry along the international land borders of the United States, at locations to be determined by the Secretary; and

(2)

make necessary improvements to the ports of entry in existence on the date of enactment of this Act.

105.

Secure communication

The Secretary shall, as expeditiously as practicable, develop and implement a plan to improve the use of satellite communications and other technologies to ensure clear and secure 2-way communication capabilities—

(1)

among all Border Patrol agents conducting operations between ports of entry;

(2)

between Border Patrol agents and their respective Border Patrol stations;

(3)

between Border Patrol agents and residents in remote areas along the international land borders of the United States; and

(4)

between all appropriate border security agencies of the Department and State, local, and tribal law enforcement agencies.

106.

Unmanned aerial vehicles

(a)

Unmanned aerial vehicles and associated infrastructure

The Secretary shall acquire and maintain unmanned aerial vehicles and related equipment for use to patrol the international borders of the United States, including equipment such as—

(1)

additional sensors;

(2)

critical spares;

(3)

satellite command and control; and

(4)

other necessary equipment for operational support.

(b)

Authorization of appropriations

(1)

In general

There are authorized to be appropriated to the Secretary for each of the fiscal years 2008 and 2009 such sums as may be necessary to carry out subsection (a).

(2)

Availability of funds

Amounts appropriated pursuant to the authorization of appropriations in paragraph (1) are authorized to remain available until expended.

107.

Surveillance technologies programs

(a)

Aerial surveillance program

(1)

In general

In conjunction with the border surveillance plan developed under section 5201 of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108–458; 8 U.S.C. 1701 note), the Secretary, not later than 90 days after the date of enactment of this Act, shall develop and implement a program to fully integrate and utilize aerial surveillance technologies, including unmanned aerial vehicles, to enhance the security of the international border between the United States and Canada and the international border between the United States and Mexico. The goal of the program shall be to ensure continuous monitoring of each mile of each such border.

(2)

Assessment and consultation requirements

In developing the program under this subsection, the Secretary shall—

(A)

consider current and proposed aerial surveillance technologies;

(B)

assess the feasibility and advisability of utilizing such technologies to address border threats, including an assessment of the technologies considered best suited to address respective threats;

(C)

consult with the Secretary of Defense regarding any technologies or equipment, which the Secretary may deploy along an international border of the United States; and

(D)

consult with the Administrator of the Federal Aviation Administration regarding safety, airspace coordination and regulation, and any other issues necessary for implementation of the program.

(3)

Additional requirements

(A)

In general

The program developed under this subsection shall include the use of a variety of aerial surveillance technologies in a variety of topographies and areas, including populated and unpopulated areas located on or near an international border of the United States, in order to evaluate, for a range of circumstances—

(i)

the significance of previous experiences with such technologies in border security or critical infrastructure protection;

(ii)

the cost and effectiveness of various technologies for border security, including varying levels of technical complexity; and

(iii)

liability, safety, and privacy concerns relating to the utilization of such technologies for border security.

(4)

Continued use of aerial surveillance technologies

The Secretary may continue the operation of aerial surveillance technologies while assessing the effectiveness of the utilization of such technologies.

(5)

Report to Congress

Not later than 180 days after implementing the program under this subsection, the Secretary shall submit to Congress a report regarding such program. The Secretary shall include in the report a description of such program together with any recommendations that the Secretary finds appropriate for enhancing the program.

(6)

Authorization of appropriations

There are authorized to be appropriated such sums as may be necessary to carry out this subsection.

(b)

Integrated and Automated Surveillance Program

(1)

Requirement for program

Subject to the availability of appropriations, the Secretary shall establish a program to procure additional unmanned aerial vehicles, cameras, poles, sensors, satellites, radar coverage, and other technologies necessary to achieve operational control of the international borders of the United States and to establish a security perimeter known as a virtual fence along such international borders to provide a barrier to illegal immigration. Such program shall be known as the Integrated and Automated Surveillance Program.

(2)

Program components

The Secretary shall ensure, to the maximum extent feasible, that—

(A)

the technologies utilized in the Integrated and Automated Surveillance Program are integrated and function cohesively in an automated fashion, including the integration of motion sensor alerts and cameras in a manner where a sensor alert automatically activates a corresponding camera to pan and tilt in the direction of the triggered sensor;

(B)

cameras utilized in the Program do not have to be manually operated;

(C)

such camera views and positions are not fixed;

(D)

surveillance video taken by such cameras is able to be viewed at multiple designated communications centers;

(E)

a standard process is used to collect, catalog, and report intrusion and response data collected under the Program;

(F)

future remote surveillance technology investments and upgrades for the Program can be integrated with existing systems;

(G)

performance measures are developed and applied that can evaluate whether the Program is providing desired results and increasing response effectiveness in monitoring and detecting illegal intrusions along the international borders of the United States;

(H)

plans are developed under the Program to streamline site selection, site validation, and environmental assessment processes to minimize delays of installing surveillance technology infrastructure;

(I)

standards are developed under the Program to expand the shared use of existing private and governmental structures to install remote surveillance technology infrastructure where possible; and

(J)

standards are developed under the Program to identify and deploy the use of nonpermanent or mobile surveillance platforms that will increase the Secretary’s mobility and ability to identify illegal border intrusions.

(3)

Report to Congress

Not later than 1 year after the initial implementation of the Integrated and Automated Surveillance Program, the Secretary shall submit to Congress a report regarding the Program. The Secretary shall include in the report a description of the Program together with any recommendation that the Secretary finds appropriate for enhancing the program.

(4)

Evaluation of contractors

(A)

Requirement for standards

The Secretary shall develop appropriate standards to evaluate the performance of any contractor providing goods or services to carry out the Integrated and Automated Surveillance Program.

(B)

Review by the inspector general

(i)

In general

The Inspector General of the Department shall review each new contract related to the Program that has a value of more than $5,000,000 in a timely manner, to determine whether such contract fully complies with applicable cost requirements, performance objectives, program milestones, and schedules.

(ii)

Reports

The Inspector General shall report the findings of each review carried out under clause (i) to the Secretary in a timely manner. Not later than 30 days after the date the Secretary receives a report of findings from the Inspector General, the Secretary shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Homeland Security of the House of Representatives a report of such findings and a description of any the steps that the Secretary has taken or plans to take in response to such findings.

(5)

Authorization of appropriations

There are authorized to be appropriated such sums as may be necessary to carry out this subsection.

B

Border Security Plans, Strategies, and Reports

111.

Surveillance plan

(a)

Requirement for Plan

The Secretary shall develop a comprehensive plan for the systematic surveillance of the international land and maritime borders of the United States.

(b)

Content

The plan required by subsection (a) shall include the following:

(1)

An assessment of existing technologies employed on the international land and maritime borders of the United States.

(2)

A description of the compatibility of new surveillance technologies with surveillance technologies in use by the Secretary on the date of enactment of this Act.

(3)

A description of how the Commissioner of the United States Customs and Border Protection is working, or is expected to work, with the Under Secretary for Science and Technology of the Department to identify and test surveillance technology.

(4)

A description of the specific surveillance technology to be deployed.

(5)

Identification of any obstacles that may impede such deployment.

(6)

A detailed estimate of all costs associated with such deployment and with continued maintenance of such technologies.

(7)

A description of how the Secretary is working with the Administrator of the Federal Aviation Administration on safety and airspace control issues associated with the use of unmanned aerial vehicles.

(8)

A description of the program to fully integrate and utilize aerial surveillance technologies developed pursuant to section 107(a).

(9)

A description of the Integrated and Automated Surveillance Program established pursuant to section 107(b).

(c)

Submission to Congress

Not later than 6 months after the date of enactment of this Act, the Secretary shall submit to Congress the plan required by this section.

112.

National Strategy for Border Security

(a)

Requirement for Strategy

The Secretary, in consultation with the heads of other appropriate Federal agencies, shall develop a National Strategy for Border Security that describes actions to be carried out to achieve operational control over all ports of entry into the United States and the international land and maritime borders of the United States.

(b)

Content

The National Strategy for Border Security shall include the following:

(1)

The implementation schedule for the comprehensive plan for systematic surveillance described in section 111.

(2)

An assessment of the threat posed by terrorists and terrorist groups that may try to infiltrate the United States at locations along the international land and maritime borders of the United States.

(3)

A risk assessment for all United States ports of entry and all portions of the international land and maritime borders of the United States that includes a description of activities being undertaken—

(A)

to prevent the entry of terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband into the United States; and

(B)

to protect critical infrastructure at or near such ports of entry or borders.

(4)

An assessment of the legal requirements that prevent achieving and maintaining operational control over the entire international land and maritime borders of the United States.

(5)

An assessment of the most appropriate, practical, and cost-effective means of defending the international land and maritime borders of the United States against threats to security and illegal transit, including intelligence capacities, technology, equipment, personnel, and training needed to address security vulnerabilities.

(6)

An assessment of staffing needs for all border security functions, taking into account threat and vulnerability information pertaining to the borders and the impact of new security programs, policies, and technologies.

(7)

A description of the border security roles and missions of Federal, State, regional, local, and tribal authorities, and recommendations regarding actions the Secretary can carry out to improve coordination with such authorities to enable border security and enforcement activities to be carried out in a more efficient and effective manner.

(8)

An assessment of existing efforts and technologies used for border security and the effect of the use of such efforts and technologies on civil rights, private property rights, privacy rights, and civil liberties, including an assessment of efforts to take into account asylum seekers, trafficking victims, unaccompanied minor aliens, and other vulnerable populations.

(9)

A prioritized list of research and development objectives to enhance the security of the international land and maritime borders of the United States.

(10)

A description of ways to ensure that the free flow of travel and commerce is not diminished by efforts, activities, and programs aimed at securing the international land and maritime borders of the United States.

(11)

An assessment of additional detention facilities and beds that are needed to detain unlawful aliens apprehended at United States ports of entry or along the international land borders of the United States.

(12)

A description of the performance metrics to be used to ensure accountability by the bureaus of the Department in implementing such Strategy.

(13)

A schedule for the implementation of the security measures described in such Strategy, including a prioritization of security measures, realistic deadlines for addressing the security and enforcement needs, an estimate of the resources needed to carry out such measures, and a description of how such resources should be allocated.

(c)

Consultation

In developing the National Strategy for Border Security, the Secretary shall consult with representatives of—

(1)

State, local, and tribal authorities with responsibility for locations along the international land and maritime borders of the United States; and

(2)

appropriate private sector entities, nongovernmental organizations, and affected communities that have expertise in areas related to border security.

(d)

Coordination

The National Strategy for Border Security shall be consistent with the National Strategy for Maritime Security developed pursuant to Homeland Security Presidential Directive 13, dated December 21, 2004.

(e)

Submission to Congress

(1)

Strategy

Not later than 1 year after the date of enactment of this Act, the Secretary shall submit to Congress the National Strategy for Border Security.

(2)

Updates

The Secretary shall submit to Congress any update of such Strategy that the Secretary determines is necessary, not later than 30 days after such update is developed.

(f)

Immediate Action

Nothing in this section or section 111 may be construed to relieve the Secretary of the responsibility to take all actions necessary and appropriate to achieve and maintain operational control over the entire international land and maritime borders of the United States.

113.

Reports on improving the exchange of information on North American security

(a)

Requirement for Reports

Not later than 1 year after the date of enactment of this Act, and annually thereafter, the Secretary of State, in coordination with the Secretary and the heads of other appropriate Federal agencies, shall submit to Congress a report on improving the exchange of information related to the security of North America.

(b)

Contents

Each report submitted under subsection (a) shall contain a description of the following:

(1)

Security clearances and document integrity

The progress made toward the development of common enrollment, security, technical, and biometric standards for the issuance, authentication, validation, and repudiation of secure documents, including—

(A)

technical and biometric standards based on best practices and consistent with international standards for the issuance, authentication, validation, and repudiation of travel documents, including—

(i)

passports;

(ii)

visas; and

(iii)

permanent resident cards;

(B)

working with Canada and Mexico to encourage foreign governments to enact laws to combat alien smuggling and trafficking, and laws to forbid the use and manufacture of fraudulent travel documents and to promote information sharing;

(C)

applying the necessary pressures and support to ensure that other countries meet proper travel document standards and are committed to travel document verification before the citizens of such countries travel internationally, including travel by such citizens to the United States; and

(D)

providing technical assistance for the development and maintenance of a national database built upon identified best practices for biometrics associated with visa and travel documents.

(2)

Immigration and visa management

The progress of efforts to share information regarding high-risk individuals who may attempt to enter Canada, Mexico, or the United States, including the progress made—

(A)

in implementing the Statement of Mutual Understanding on Information Sharing, signed by Canada and the United States in February 2003; and

(B)

in identifying trends related to immigration fraud, including asylum and document fraud, and to analyze such trends.

(3)

Visa policy coordination and immigration security

The progress made by Canada, Mexico, and the United States to enhance the security of North America by cooperating on visa policy and identifying best practices regarding immigration security, including the progress made—

(A)

in enhancing consultation among officials who issue visas at the consulates or embassies of Canada, Mexico, or the United States throughout the world to share information, trends, and best practices on visa flows;

(B)

in comparing the procedures and policies of Canada and the United States related to visitor visa processing, including—

(i)

application process;

(ii)

interview policy;

(iii)

general screening procedures;

(iv)

visa validity;

(v)

quality control measures; and

(vi)

access to appeal or review;

(C)

in exploring methods for Canada, Mexico, and the United States to waive visa requirements for nationals and citizens of the same foreign countries;

(D)

in providing technical assistance for the development and maintenance of a national database built upon identified best practices for biometrics associated with immigration violators;

(E)

in developing and implementing an immigration security strategy for North America that works toward the development of a common security perimeter by enhancing technical assistance for programs and systems to support advance automated reporting and risk targeting of international passengers;

(F)

in sharing information on lost and stolen passports on a real-time basis among immigration or law enforcement officials of Canada, Mexico, and the United States; and

(G)

in collecting 10 fingerprints from each individual who applies for a visa.

(4)

North american visitor overstay program

The progress made by Canada and the United States in implementing parallel entry-exit tracking systems that, while respecting the privacy laws of both countries, share information regarding third country nationals who have overstayed their period of authorized admission in either Canada or the United States.

(5)

Terrorist watch lists

The progress made in enhancing the capacity of the United States to combat terrorism through the coordination of counterterrorism efforts, including the progress made—

(A)

in developing and implementing bilateral agreements between Canada and the United States and between Mexico and the United States to govern the sharing of terrorist watch list data and to comprehensively enumerate the uses of such data by the governments of each country;

(B)

in establishing appropriate linkages among Canada, Mexico, and the United States Terrorist Screening Center; and

(C)

in exploring with foreign governments the establishment of a multilateral watch list mechanism that would facilitate direct coordination between the country that identifies an individual as an individual included on a watch list, and the country that owns such list, including procedures that satisfy the security concerns and are consistent with the privacy and other laws of each participating country.

(6)

Money laundering, currency smuggling, and alien smuggling

The progress made in improving information sharing and law enforcement cooperation in combating organized crime, including the progress made—

(A)

in combating currency smuggling, money laundering, alien smuggling, and trafficking in alcohol, firearms, and explosives;

(B)

in determining the feasibility of formulating a firearms trafficking action plan between Mexico and the United States;

(C)

in developing a joint threat assessment on organized crime between Canada and the United States;

(D)

in determining the feasibility of formulating a joint threat assessment on organized crime between Mexico and the United States;

(E)

in developing mechanisms to exchange information on findings, seizures, and capture of individuals transporting undeclared currency; and

(F)

in developing and implementing a plan to combat the transnational threat of illegal drug trafficking.

(7)

Law enforcement cooperation

The progress made in enhancing law enforcement cooperation among Canada, Mexico, and the United States through enhanced technical assistance for the development and maintenance of a national database built upon identified best practices for biometrics associated with known and suspected criminals or terrorists, including exploring the formation of law enforcement teams that include personnel from the United States and Mexico, and appropriate procedures for such teams.

114.

Border Patrol training capacity review

(a)

In General

The Comptroller General of the United States shall conduct a review of the basic training provided to Border Patrol agents by the Secretary to ensure that such training is provided as efficiently and cost-effectively as possible.

(b)

Components of Review

The review under subsection (a) shall include the following components:

(1)

An evaluation of the length and content of the basic training curriculum provided to new Border Patrol agents by the Federal Law Enforcement Training Center, including a description of how such curriculum has changed since September 11, 2001, and an evaluation of language and cultural diversity training programs provided within such curriculum.

(2)

A review and a detailed breakdown of the costs incurred by United States Customs and Border Protection and the Federal Law Enforcement Training Center to train 1 new Border Patrol agent.

(3)

A comparison, based on the review and breakdown under paragraph (2), of the costs, effectiveness, scope, and quality, including geographic characteristics, with other similar training programs provided by State and local agencies, nonprofit organizations, universities, and the private sector.

(4)

An evaluation of whether utilizing comparable non-Federal training programs, proficiency testing, and long-distance learning programs may affect—

(A)

the cost-effectiveness of increasing the number of Border Patrol agents trained per year;

(B)

the per agent costs of basic training; and

(C)

the scope and quality of basic training needed to fulfill the mission and duties of a Border Patrol agent.

115.

Secure Border Initiative financial accountability

(a)

In General

The Inspector General of the Department shall review each contract action relating to the Secure Border Initiative having a value of more than $20,000,000, to determine whether each such action fully complies with applicable cost requirements, performance objectives, program milestones, inclusion of small, minority, and women-owned business, and time lines. The Inspector General shall complete a review under this subsection with respect to each contract action—

(1)

not later than 60 days after the date of the initiation of the action; and

(2)

upon the conclusion of the performance of the contract.

(b)

Inspector General

(1)

Action

If the Inspector General becomes aware of any improper conduct or wrongdoing in the course of conducting a contract review under subsection (a), the Inspector General shall, as expeditiously as practicable, refer information relating to such improper conduct or wrongdoing to the Secretary, or to another appropriate official of the Department, who shall determine whether to temporarily suspend the contractor from further participation in the Secure Border Initiative.

(2)

Report

Upon the completion of each review described in subsection (a), the Inspector General shall submit to the Secretary a report containing the findings of the review, including findings regarding—

(A)

cost overruns;

(B)

significant delays in contract execution;

(C)

lack of rigorous departmental contract management;

(D)

insufficient departmental financial oversight;

(E)

bundling that limits the ability of small businesses to compete; or

(F)

other high-risk business practices.

(c)

Reports by the Secretary

(1)

In general

Not later than 30 days after the receipt of each report required under subsection (b)(2), the Secretary shall submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives, that describes—

(A)

the findings of the report received from the Inspector General; and

(B)

the steps the Secretary has taken, or plans to take, to address the problems identified in such report.

(2)

Contracts with foreign companies

Not later than 60 days after the initiation of each contract action with a company whose headquarters are not based in the United States, the Secretary shall submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives, regarding the Secure Border Initiative.

(d)

Reports on United States Ports

Not later that 30 days after receiving information regarding a proposed purchase of a contract to manage the operations of a United States port by a foreign entity, the Committee on Foreign Investment in the United States shall submit a report to Congress that describes—

(1)

the proposed purchase;

(2)

any security concerns related to the proposed purchase; and

(3)

the manner in which such security concerns have been addressed.

(e)

Authorization of Appropriations

In addition to amounts that are otherwise authorized to be appropriated to the Office of the Inspector General of the Department, there are authorized to be appropriated to the Office, to enable the Office to carry out this section—

(1)

for fiscal year 2008, not less than 5 percent of the overall budget of the Office for such fiscal year;

(2)

for fiscal year 2009, not less than 6 percent of the overall budget of the Office for such fiscal year; and

(3)

for fiscal year 2010, not less than 7 percent of the overall budget of the Office for such fiscal year.

C

Southern Border Security

121.

Improving the security of Mexico’s southern border

(a)

Technical Assistance

The Secretary of State, in coordination with the Secretary, shall work to cooperate with the head of Foreign Affairs Canada and the appropriate officials of the Government of Mexico to establish a program—

(1)

to assess the specific needs of the countries of Central America in maintaining the security of the international borders of such countries;

(2)

to use the assessment made under paragraph (1) to determine the financial and technical support needed by the countries of Central America from Canada, Mexico, and the United States to meet such needs;

(3)

to provide technical assistance to the countries of Central America to promote issuance of secure passports and travel documents by such countries; and

(4)

to encourage the countries of Central America—

(A)

to control alien smuggling and trafficking;

(B)

to prevent the use and manufacture of fraudulent travel documents; and

(C)

to share relevant information with Mexico, Canada, and the United States.

(b)

Border Security for the countries of Central America

The Secretary, in consultation with the Secretary of State, shall work to cooperate—

(1)

with the appropriate officials of the governments of the countries of Central America to provide law enforcement assistance to such countries to specifically address immigration issues to increase the ability of such governments to dismantle human smuggling organizations and gain additional control over the international borders between the countries of Central America; and

(2)

with the appropriate officials of the governments of the countries of Central America to establish a program to provide needed equipment, technical assistance, and vehicles to manage, regulate, and patrol such international borders.

(c)

Tracking Central American Gangs

The Secretary of State, in coordination with the Secretary and the Director of the Federal Bureau of Investigation, shall work to cooperate with the appropriate officials of the governments of other countries of Central America—

(1)

to assess the direct and indirect impact on the United States and Central America of deporting violent criminal aliens;

(2)

to establish a program and database to track individuals involved in Central American gang activities;

(3)

to develop a mechanism that is acceptable to the governments of the countries of Central America and of the United States to notify such a government if an individual suspected of gang activity will be deported to that country prior to the deportation and to provide support for the reintegration of such deportees into that country; and

(4)

to develop an agreement to share all relevant information related to individuals connected with Central American gangs.

(d)

Limitations on Assistance

Any funds made available to carry out this section shall be subject to the limitations contained in section 551 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2006 (Public Law 109–102; 119 Stat. 2218).

122.

Report on deaths at the United States-Mexico border

(a)

Collection of Statistics

The Commissioner of the United States Customs and Border Protection shall collect statistics relating to deaths occurring at the border between the United States and Mexico, including—

(1)

the causes of the deaths; and

(2)

the total number of deaths.

(b)

Report

Not later than 1 year after the date of enactment of this Act, and annually thereafter, the Commissioner of United States Customs and Border Protection shall submit to the Secretary a report that—

(1)

analyzes trends with respect to the statistics collected under subsection (a) during the preceding year; and

(2)

recommends actions to reduce the deaths described in subsection (a).

123.

Cooperation with the Government of Mexico

(a)

Cooperation Regarding Border Security

The Secretary of State, in cooperation with the Secretary and representatives of Federal, State, and local law enforcement agencies that are involved in border security and immigration enforcement efforts, shall work with the appropriate officials from the Government of Mexico to improve coordination between the United States and Mexico regarding—

(1)

improved border security along the international border between the United States and Mexico;

(2)

the reduction of human trafficking and smuggling between the United States and Mexico;

(3)

the reduction of drug trafficking and smuggling between the United States and Mexico;

(4)

the reduction of gang membership in the United States and Mexico;

(5)

the reduction of violence against women in the United States and Mexico; and

(6)

the reduction of other violence and criminal activity.

(b)

Cooperation Regarding Education on Immigration Laws

The Secretary of State, in cooperation with other appropriate Federal officials, shall work with the appropriate officials from the Government of Mexico to carry out activities to educate citizens and nationals of Mexico regarding eligibility for status as a nonimmigrant under Federal law to ensure that the citizens and nationals are not exploited while working in the United States.

(c)

Cooperation Regarding Circular Migration

The Secretary of State, in cooperation with the Secretary of Labor and other appropriate Federal officials, shall work with the appropriate officials from the Government of Mexico to improve coordination between the United States and Mexico to encourage circular migration, including assisting in the development of economic opportunities and providing job training for citizens and nationals in Mexico.

(d)

Consultation Requirement

Federal, State, and local representatives in the United States shall work to cooperate with their counterparts in Mexico concerning border security structures along the international border between the United States and Mexico, as authorized by this title, in order to—

(1)

solicit the views of affected communities;

(2)

lessen tensions; and

(3)

foster greater understanding and stronger cooperation on this and other important security issues of mutual concern.

(e)

Annual Report

Not later than 180 days after the date of enactment of this Act, and annually thereafter, the Secretary of State shall submit to Congress a report on the actions taken by the United States and Mexico under this section.

124.

Temporary National Guard support for securing the southern land border of the United States

(a)

Authority To Provide Assistance

(1)

In general

With the approval of the Secretary of Defense, the Governor of a State may order any units or personnel of the National Guard of such State to perform annual training duty under section 502(a) of title 32, United States Code, to carry out in any State along the southern land border of the United States the activities authorized in subsection (b), for the purpose of securing such border. Such duty shall not exceed 21 days in any year.

(2)

Support

With the approval of the Secretary of Defense, the Governor of a State may order any units or personnel of the National Guard of such State to perform duty under section 502(f) of title 32, United States Code, to provide command, control, and continuity of support for units or personnel performing annual training duty under paragraph (1).

(b)

Authorized Activities

The activities authorized by this subsection are any of the following:

(1)

Ground reconnaissance activities.

(2)

Airborne reconnaissance activities.

(3)

Logistical support.

(4)

Provision of translation services and training.

(5)

Administrative support services.

(6)

Technical training services.

(7)

Emergency medical assistance and services.

(8)

Communications services.

(9)

Rescue of aliens in peril.

(10)

Construction of roadways, patrol roads, fences, barriers, and other facilities to secure the southern land border of the United States.

(11)

Ground and air transportation.

(c)

Cooperative Agreements

Units and personnel of the National Guard of a State may perform activities in another State under subsection (a) only pursuant to the terms of an emergency management assistance compact or other cooperative arrangement entered into between Governors of such States for purposes of this section, and only with the approval of the Secretary of Defense.

(d)

Coordination of Assistance

The Secretary of Homeland Security shall, in consultation with the Secretary of Defense and the Governors of the States concerned, coordinate the performance of activities under this section by units and personnel of the National Guard.

(e)

Annual Training

Annual training duty performed by members of the National Guard under subsection (a) shall be appropriate for the units and individual members concerned, taking into account the types of units and military occupational specialties of individual members performing such duty.

(f)

Definitions

In this section:

(1)

The term Governor of a State means, in the case of the District of Columbia, the Commanding General of the National Guard of the District of Columbia.

(2)

The term State means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.

(3)

The term State along the southern border of the United States means each of the following:

(A)

The State of Arizona.

(B)

The State of California.

(C)

The State of New Mexico.

(D)

The State of Texas.

(g)

Duration of Authority

The authority of this section shall expire on January 1, 2009.

(h)

Prohibition on Direct Participation in Law Enforcement

Activities carried out under the authority of this section shall not include the direct participation of a member of the National Guard in a search, seizure, arrest, or similar activity.

125.

United States-Mexico Border Enforcement Review Commission

(a)

Establishment of commission

(1)

In general

There is established an independent commission to be known as the United States-Mexico Border Enforcement Review Commission (referred to in this section as the Commission).

(2)

Purposes

The purposes of the Commission are—

(A)

to study the overall enforcement and detention strategies, programs and policies of Federal agencies along the United States-Mexico border; and

(B)

to make recommendations to the President and Congress with respect to such strategies, programs and policies.

(3)

Membership

The Commission shall be composed of 16 voting members, who shall be appointed as follows:

(A)

The Governors of the States of California, New Mexico, Arizona, and Texas shall each appoint 4 voting members of whom—

(i)

1 shall be a local elected official from the State's border region;

(ii)

1 shall be a local law enforcement official from the State's border region; and

(iii)

2 shall be from the State's communities of academia, religious leaders, civic leaders or community leaders.

(B)

2 nonvoting members, of whom—

(i)

1 shall be appointed by the Secretary; and

(ii)

1 shall be appointed by the Attorney General.

(4)

Qualifications

(A)

In general

Members of the Commission shall be—

(i)

individuals with expertise in migration, border enforcement and protection, civil and human rights, community relations, cross-border trade and commerce or other pertinent qualifications or experience; and

(ii)

representative of a broad cross section of perspectives from the region along the international border between the United States and Mexico;

(B)

Political affiliation

Not more than 2 members of the Commission appointed by each Governor under paragraph (3)(A) may be members of the same political party.

(C)

Nongovernmental appointees

An individual appointed as a voting member to the Commission may not be an officer or employee of the Federal Government.

(5)

Deadline for appointment

All members of the Commission shall be appointed not later than 6 months after the enactment of this Act. If any member of the Commission described in paragraph (3)(A) is not appointed by such date, the Commission shall carry out its duties under this section without the participation of such member.

(6)

Term of service

The term of office for members shall be for the life of the Commission, or 3 years, whichever is sooner.

(7)

Vacancies

Any vacancy in the Commission shall not affect its powers, but shall be filled in the same manner in which the original appointment was made.

(8)

Meetings

(A)

Initial meeting

The Commission shall meet and begin the operations of the Commission as soon as practicable.

(B)

Subsequent meetings

After its initial meeting, the Commission shall meet upon the call of the chairman or a majority of its members.

(9)

Quorum

Nine members of the Commission shall constitute a quorum.

(10)

Chair and vice chair

The voting members of the Commission shall elect a Chairman and Vice Chairman from among its members. The term of office shall be for the life of the Commission.

(b)

Duties

The Commission shall review, examine, and make recommendations regarding border enforcement policies, strategies, and programs, including recommendations regarding—

(1)

the protection of human and civil rights of community residents and migrants along the international border between the United States and Mexico;

(2)

the adequacy and effectiveness of human and civil rights training of enforcement personnel on such border;

(3)

the adequacy of the complaint process within the agencies and programs of the Department that are employed when an individual files a grievance;

(4)

the effect of the operations, technology, and enforcement infrastructure along such border on the—

(A)

environment;

(B)

cross border traffic and commerce; and

(C)

the quality of life of border communities;

(5)

State and local law enforcement involvement in the enforcement of Federal immigration law;

(6)

the adequacy of detention standards and conditions, and the extent to which the standards and conditions are enforced; and

(7)

any other matters regarding border enforcement policies, strategies, and programs the Commission determines appropriate.

(c)

Information and assistance from Federal agencies

(1)

Information from Federal agencies

The Commission may seek directly from any department or agency of the United States such information, including suggestions, estimates, and statistics, as allowed by law and as the Commission considers necessary to carry out the provisions of this section. Upon request of the Commission, the head of such department or agency shall furnish such information to the Commission.

(2)

Assistance from Federal agencies

The Administrator of General Services shall, on a reimbursable basis, provide the Commission with administrative support and other services for the performance of the Commission’s functions. The departments and agencies of the United States may provide the Commission with such services, funds, facilities, staff, and other support services as they determine advisable and as authorized by law.

(d)

Compensation

(1)

In general

Members of the Commission shall serve without pay.

(2)

Reimbursement of expenses

All members of the Commission shall be reimbursed for reasonable travel expenses and subsistence, and other reasonable and necessary expenses incurred by them in the performance of their duties.

(e)

Report

Not later than 2 years after the date of the first meeting called pursuant to (a)(8)(A), the Commission shall submit a report to the President and Congress that contains—

(1)

findings with respect to the duties of the Commission;

(2)

recommendations regarding border enforcement policies, strategies, and programs;

(3)

suggestions for the implementation of the Commission's recommendations; and

(4)

a recommendation as to whether the Commission should continue to exist after the date of termination described in subsection (g), and if so, a description of the purposes and duties recommended to be carried out by the Commission after such date.

(f)

Authorization of appropriations

There are authorized to be appropriated such sums as may be necessary to carry out this section.

(g)

Sunset

Unless the Commission is re-authorized by Congress, the Commission shall terminate on the date that is 90 days after the date the Commission submits the report described in subsection (e).

D

Secure Entry Initiatives

131.

Biometric data enhancements

Not later than December 31, 2008, the Secretary shall—

(1)

in consultation with the Attorney General, enhance connectivity between the Automated Biometric Fingerprint Identification System (IDENT) of the Department and the Integrated Automated Fingerprint Identification System (IAFIS) of the Federal Bureau of Investigation to ensure more expeditious data searches; and

(2)

in consultation with the Secretary of State, collect all fingerprints from each alien required to provide fingerprints during the alien’s initial enrollment in the integrated entry and exit data system described in section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1365a).

132.

US–VISIT System

Not later than 6 months after the date of enactment of this Act, the Secretary, in consultation with the heads of other appropriate Federal agencies, shall submit to Congress a schedule for—

(1)

equipping all land border ports of entry of the United States with the U.S.-Visitor and Immigrant Status Indicator Technology (US–VISIT) system implemented under the authority of section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1365a);

(2)

developing and deploying at such ports of entry the exit component of the US–VISIT system; and

(3)

making interoperable all immigration screening systems operated by the Secretary.

133.

Document fraud detection

(a)

Training

Subject to the availability of appropriations, the Secretary shall provide all officers of the United States Customs and Border Protection with training in identifying and detecting fraudulent travel documents. Such training shall be developed in consultation with the head of the Forensic Document Laboratory of United States Immigration and Customs Enforcement.

(b)

Forensic Document Laboratory

The Secretary shall provide all United States Customs and Border Protection officers with access to the Forensic Document Laboratory.

(c)

Assessment

(1)

Requirement for assessment

The Inspector General of the Department shall conduct an independent assessment of the accuracy and reliability of the Forensic Document Laboratory.

(2)

Report to congress

Not later than 6 months after the date of enactment of this Act, the Inspector General shall submit to Congress the findings of the assessment required by paragraph (1).

(d)

Authorization of Appropriations

There are authorized to be appropriated to the Secretary such sums as may be necessary for each of fiscal years 2008 through 2012 to carry out this section.

134.

Improved document integrity

(a)

In General

Section 303 of the Enhanced Border Security and Visa Entry Reform Act of 2002 (8 U.S.C. 1732) is amended—

(1)

by striking Attorney General each place it appears and inserting Secretary of Homeland Security;

(2)

in the heading, by striking entry and exit documents and inserting travel and entry documents and evidence of status;

(3)

in subsection (b)(1)—

(A)

by striking Not later than October 26, 2004, the and inserting The; and

(B)

by striking visas and both places it appears and inserting visas, evidence of status, and;

(4)

by redesignating subsection (d) as subsection (e); and

(5)

by inserting after subsection (c) the following:

(d)

Other Documents

Not later than December 31, 2008, every document, other than an interim document, issued by the Secretary of Homeland Security which may be used as evidence of an alien’s authorization to travel shall be machine-readable and tamper-resistant, and shall incorporate a biometric identifier to allow the Secretary of Homeland Security to verify electronically the identity and status of the alien.

.

135.

Biometric entry-exit system

(a)

Collection of biometric data from aliens departing the United States

Section 215 (8 U.S.C. 1185) is amended—

(1)

by redesignating subsection (c) as subsection (g);

(2)

by moving subsection (g), as redesignated by paragraph (1), to the end; and

(3)

by inserting after subsection (b) the following:

(c)

The Secretary of Homeland Security is authorized to require aliens departing the United States to provide biometric data and other information relating to their immigration status.

.

(b)

Inspection of applicants for admission

Section 235(d) (8 U.S.C. 1225(d)) is amended by adding at the end the following:

(5)

Authority to collect biometric data

In conducting inspections under subsection (b), immigration officers are authorized to collect biometric data from—

(A)

any applicant for admission or alien seeking to transit through the United States; or

(B)

any lawful permanent resident who is entering the United States and who is not regarded as seeking admission pursuant to section 101(a)(13)(C).

.

(c)

Collection of biometric data from alien crewmen

Section 252 (8 U.S.C. 1282) is amended by adding at the end the following:

(d)

An immigration officer is authorized to collect biometric data from an alien crewman seeking permission to land temporarily in the United States.

.

(d)

Grounds of inadmissibility

Section 212 (8 U.S.C. 1182) is amended—

(1)

in subsection (a)(7), by adding at the end the following:

(C)

Withholders of biometric data

Any alien who knowingly fails to comply with a lawful request for biometric data under section 215(c) or 235(d) is inadmissible.

; and

(2)

in subsection (d), by inserting after paragraph (1) the following:

(2)

The Secretary of Homeland Security shall determine whether a ground for inadmissibility exists with respect to an alien described in subparagraph (C) of subsection (a)(7) and may waive the application of such subparagraph for an individual alien or a class of aliens, at the discretion of the Secretary.

.

(e)

Implementation

Section 7208 of the 9/11 Commission Implementation Act of 2004 (8 U.S.C. 1365b) is amended—

(1)

in subsection (c), by adding at the end the following:

(3)

Implementation

In fully implementing the automated biometric entry and exit data system under this section, the Secretary is not required to comply with the requirements of chapter 5 of title 5, United States Code (commonly referred to as the Administrative Procedure Act) or any other law relating to rulemaking, information collection, or publication in the Federal Register.

; and

(2)

in subsection (l)—

(A)

by striking There are authorized and inserting the following:

(1)

In general

There are authorized

; and

(B)

by adding at the end the following:

(2)

Implementation at all land border ports of entry

There are authorized to be appropriated such sums as may be necessary for each of fiscal years 2008 and 2009 to implement the automated biometric entry and exit data system at all land border ports of entry.

.

136.

Evasion of inspection or violation of arrival, reporting, entry, or clearance requirements

(a)

In General

Chapter 27 of title 18, United States Code, is amended by adding at the end the following:

556.

Evasion of inspection or violation of arrival, reporting, entry, or clearance requirements

(a)

Prohibition

A person at a port of entry or customs or immigration checkpoint shall be punished as described in subsection (b) if such person attempts to elude or eludes customs, immigration, or agriculture inspection or fails to stop at the command of an officer or employee of the United States charged with enforcing the immigration, customs, or other laws of the United States at a port of entry or customs or immigration checkpoint.

(b)

Penalties

A person who commits an offense described in subsection (a) shall be—

(1)

fined under this title;

(2)
(A)

imprisoned for not more than 3 years, or both;

(B)

imprisoned for not more than 10 years, or both, if in commission of this violation, such person attempts to inflict or inflicts bodily injury (as defined in section 1365(h) of this title); or

(C)

imprisoned for any term of years or for life, or both, if death results, and may be sentenced to death; or

(3)

both fined and imprisoned under this subsection.

(c)

Conspiracy

If 2 or more persons conspire to commit an offense described in subsection (a), and 1 or more of such persons do any act to effect the object of the conspiracy, each shall be punishable as a principal, except that the sentence of death may not be imposed.

(d)

Prima Facie Evidence

For the purposes of seizure and forfeiture under applicable law, in the case of use of a vehicle or other conveyance in the commission of this offense, or in the case of disregarding or disobeying the lawful authority or command of any officer or employee of the United States under section 111(b) of this title, such conduct shall constitute prima facie evidence of smuggling aliens or merchandise.

.

(b)

Conforming amendment

The table of sections for chapter 27 of title 18, United States Code, is amended by inserting at the end:

556. Evasion of inspection or during violation of arrival, reporting, entry, or clearance requirements.

.

(c)

Failure To Obey Border Enforcement Officers

Section 111 of title 18, United States Code, is amended by inserting after subsection (b) the following:

(c)

Failure To Obey Lawful Orders of Border Enforcement Officers

Whoever willfully disregards or disobeys the lawful authority or command of any officer or employee of the United States charged with enforcing the immigration, customs, or other laws of the United States while engaged in, or on account of, the performance of official duties shall be fined under this title or imprisoned for not more than 5 years, or both.

.

(d)

Technical amendments

(1)

In general

Chapter 27 of title 18, United States Code, is amended by redesignating the section 554 added by section 551(a) of the Department of Homeland Security Appropriations Act, 2007 (Public Law 109–295; 120 Stat. 1389) (relating to border tunnels and passages) as section 555.

(2)

Table of sections

The table of sections for chapter 27 of title 18, United States Code, is amended—

(A)

by striking the following:

554. Border tunnels and passages.

; and

(B)

inserting the following:

555. Border tunnels and passages.

.

(3)

Criminal forfeiture

Section 982(a)(6)(A) of title 18, United States Code, is amended by striking 554 and inserting 555.

(4)

Directive to the United States Sentencing Commission

Section 551(d) of the Department of Homeland Security Appropriations Act, 2007 (Public Law 109–295; 120 Stat. 1390) is amended in paragraphs (1) and (2)(A) by striking 554 and inserting 555.

E

Law Enforcement Relief for States

141.

Border relief grant program

(a)

Grants Authorized

(1)

In general

The Secretary is authorized to award grants, subject to the availability of appropriations, to an eligible law enforcement agency to provide assistance to such agency to address—

(A)

criminal activity that occurs in the jurisdiction of such agency by virtue of such agency’s proximity to the United States border; and

(B)

the impact of any lack of security along the United States border.

(2)

Duration

Grants may be awarded under this subsection during fiscal years 2008 through 2012.

(3)

Competitive basis

The Secretary shall award grants under this subsection on a competitive basis, except that the Secretary shall give priority to applications from any eligible law enforcement agency serving a community with a population of less than 50,000.

(b)

Use of Funds

Grants awarded pursuant to subsection (a) may only be used to provide additional resources for an eligible law enforcement agency to address criminal activity occurring along any such border, including—

(1)

to obtain equipment;

(2)

to hire additional personnel;

(3)

to upgrade and maintain law enforcement technology;

(4)

to cover operational costs, including overtime and transportation costs; and

(5)

such other resources as are available to assist that agency.

(c)

Application

(1)

In general

Each eligible law enforcement agency seeking a grant under this section shall submit an application to the Secretary at such time, in such manner, and accompanied by such information as the Secretary may reasonably require.

(2)

Contents

Each application submitted pursuant to paragraph (1) shall—

(A)

describe the activities for which assistance under this section is sought; and

(B)

provide such additional assurances as the Secretary determines to be essential to ensure compliance with the requirements of this section.

(d)

Definitions

For the purposes of this section:

(1)

Eligible law enforcement agency

The term eligible law enforcement agency means a tribal, State, or local law enforcement agency—

(A)

located in a county that is not more than 100 miles from a United States border with—

(i)

Canada; or

(ii)

Mexico; or

(B)

located in a county more than 100 miles from any such border, but where such county has been certified by the Secretary as a High Impact Area.

(2)

High impact area

The term High Impact Area means any county designated by the Secretary as such, taking into consideration—

(A)

whether local law enforcement agencies in that county have the resources to protect the lives, property, safety, or welfare of the residents of that county;

(B)

the relationship between any lack of security along the United States border and the rise, if any, of criminal activity in that county; and

(C)

any other unique challenges that local law enforcement face due to a lack of security along the United States border.

(e)

Authorization of Appropriations

(1)

In general

There are authorized to be appropriated $50,000,000 for each of fiscal years 2008 through 2012 to carry out the provisions of this section.

(2)

Division of authorized funds

Of the amounts authorized under paragraph (1)—

(A)

2/3 shall be set aside for eligible law enforcement agencies located in the 6 States with the largest number of undocumented alien apprehensions; and

(B)

1/3 shall be set aside for areas designated as a High Impact Area under subsection (d).

(f)

Supplement Not Supplant

Amounts appropriated for grants under this section shall be used to supplement and not supplant other State and local public funds obligated for the purposes provided under this title.

(g)

Enforcement of Federal immigration law

Nothing in this section shall be construed to authorize State or local law enforcement agencies or their officers to exercise Federal immigration law enforcement authority.

142.

Northern and southern border prosecution initiative

(a)

Reimbursement to State and Local Prosecutors for Prosecuting Federally Initiated Drug Cases

The Attorney General shall, subject to the availability of appropriations, reimburse State and county prosecutors located in States along the Northern or Southern border of the United States for prosecuting federally initiated and referred drug cases.

(b)

Authorization of Appropriations

There are authorized to be appropriated $50,000,000 for each of the fiscal years 2008 through 2013 to carry out subsection (a).

F

Rapid Response Measures

151.

Deployment of Border Patrol agents

(a)

Emergency deployment of Border Patrol agents

(1)

In general

If the Governor of a State on an international border of the United States declares an international border security emergency and requests additional agents of the Border Patrol (referred to in this subtitle as agents) from the Secretary, the Secretary, subject to paragraphs (2) and (3), may provide the State with not more than 1,000 additional agents for the purpose of patrolling and defending the international border, in order to prevent individuals from crossing the international border into the United States at any location other than an authorized port of entry.

(2)

Consultation

Upon receiving a request for agents under paragraph (1), the Secretary, after consultation with the President, shall grant such request to the extent that providing such agents will not significantly impair the Department’s ability to provide border security for any other State.

(3)

Collective bargaining

Emergency deployments under this subsection shall be made in accordance with all applicable collective bargaining agreements and obligations.

(b)

Elimination of fixed deployment of Border Patrol agents

The Secretary shall ensure that agents are not precluded from performing patrol duties and apprehending violators of law, except in unusual circumstances if the temporary use of fixed deployment positions is necessary.

152.

Border Patrol major assets

(a)

Control of Border Patrol assets

The Border Patrol shall have complete and exclusive administrative and operational control over all the assets utilized in carrying out its mission, including aircraft, watercraft, vehicles, detention space, transportation, and all of the personnel associated with such assets.

(b)

Helicopters and Power Boats

(1)

Helicopters

The Secretary shall increase, by not less than 100, the number of helicopters under the control of the Border Patrol. The Secretary shall ensure that appropriate types of helicopters are procured for the various missions being performed.

(2)

Power boats

The Secretary shall increase, by not less than 250, the number of power boats under the control of the Border Patrol. The Secretary shall ensure that the types of power boats that are procured are appropriate for both the waterways in which they are used and the mission requirements.

(3)

Use and training

The Secretary shall—

(A)

establish an overall policy on how the helicopters and power boats procured under this subsection will be used; and

(B)

implement training programs for the agents who use such assets, including safe operating procedures and rescue operations.

(c)

Motor Vehicles

(1)

Quantity

The Secretary shall establish a fleet of motor vehicles appropriate for use by the Border Patrol that will permit a ratio of not less than 1 police-type vehicle for every 3 agents. These police-type vehicles shall be replaced not less often than once every 3 years. The Secretary shall ensure that there are sufficient numbers and types of other motor vehicles to support the mission of the Border Patrol.

(2)

Features

All motor vehicles purchased for the Border Patrol shall—

(A)

be appropriate for the mission of the Border Patrol; and

(B)

have a panic button and a global positioning system device that is activated solely in emergency situations to track the location of agents in distress.

153.

Electronic equipment

(a)

Portable Computers

The Secretary shall ensure that each police-type motor vehicle in the fleet of the Border Patrol is equipped with a portable computer with access to all necessary law enforcement databases and otherwise suited to the unique operational requirements of the Border Patrol.

(b)

Radio Equipment

The Secretary shall augment the existing radio communications system so that all law enforcement personnel working in each area where Border Patrol operations are conducted have clear and encrypted 2-way radio communication capabilities at all times. Each portable communications device shall be equipped with a panic button and a global positioning system device that is activated solely in emergency situations to track the location of agents in distress.

(c)

Handheld Global Positioning System Devices

The Secretary shall ensure that each Border Patrol agent is issued a state-of-the-art handheld global positioning system device for navigational purposes.

(d)

Night Vision Equipment

The Secretary shall ensure that sufficient quantities of state-of-the-art night vision equipment are procured and maintained to enable each Border Patrol agent working during the hours of darkness to be equipped with a portable night vision device.

154.

Personal equipment

(a)

Border Armor

The Secretary shall ensure that every agent is issued high-quality body armor that is appropriate for the climate and risks faced by the agent. Each agent shall be permitted to select from among a variety of approved brands and styles. Agents shall be strongly encouraged, but not required, to wear such body armor whenever practicable. All body armor shall be replaced not less often than once every 5 years.

(b)

Weapons

The Secretary shall ensure that agents are equipped with weapons that are reliable and effective to protect themselves, their fellow agents, and innocent third parties from the threats posed by armed criminals. The Secretary shall ensure that the policies of the Department authorize all agents to carry weapons that are suited to the potential threats that they face.

(c)

Uniforms

The Secretary shall ensure that all agents are provided with all necessary uniform items, including outerwear suited to the climate, footwear, belts, holsters, and personal protective equipment, at no cost to such agents. Such items shall be replaced at no cost to such agents as such items become worn or unserviceable or no longer fit properly.

155.

Authorization of appropriations

There are authorized to be appropriated to the Secretary such sums as may be necessary for each of the fiscal years 2008 through 2012 to carry out this subtitle.

G

Border Infrastructure and Technology Modernization

161.

Definitions

In this subtitle:

(1)

Commissioner

The term Commissioner means the Commissioner of United States Customs and Border Protection.

(2)

Northern border

The term northern border means the international border between the United States and Canada.

(3)

Southern border

The term southern border means the international border between the United States and Mexico.

162.

Port of Entry Infrastructure Assessment Study

(a)

Requirement To Update

Not later than January 31 of each year, the Administrator of General Services shall update the Port of Entry Infrastructure Assessment Study prepared by United States Customs and Border Protection in accordance with the matter relating to the ports of entry infrastructure assessment that is set out in the joint explanatory statement in the conference report accompanying H.R. 2490 of the 106th Congress, 1st session (House of Representatives Rep. No. 106–319, on page 67) and submit such updated study to Congress.

(b)

Consultation

In preparing the updated studies required in subsection (a), the Administrator of General Services shall consult with the Director of the Office of Management and Budget, the Secretary, and the Commissioner.

(c)

Content

Each updated study required in subsection (a) shall—

(1)

identify port of entry infrastructure and technology improvement projects that would enhance border security and facilitate the flow of legitimate commerce if implemented;

(2)

include the projects identified in the National Land Border Security Plan required by section 164; and

(3)

prioritize the projects described in paragraphs (1) and (2) based on the ability of a project to—

(A)

fulfill immediate security requirements; and

(B)

facilitate trade across the borders of the United States.

(d)

Project Implementation

The Commissioner shall implement the infrastructure and technology improvement projects described in subsection (c) in the order of priority assigned to each project under paragraph (3) of such subsection.

(e)

Divergence From Priorities

The Commissioner may diverge from the priority order if the Commissioner determines that significantly changed circumstances, such as immediate security needs or changes in infrastructure in Mexico or Canada, compellingly alter the need for a project in the United States.

163.

National Land Border Security Plan

(a)

In General

Not later than 1 year after the date of enactment of this Act, an annually thereafter, the Secretary, after consultation with representatives of Federal, State, and local law enforcement agencies and private entities that are involved in international trade across the northern border or the southern border, shall submit a National Land Border Security Plan to Congress.

(b)

Vulnerability Assessment

(1)

In general

The plan required in subsection (a) shall include a vulnerability assessment of each port of entry located on the northern border or the southern border.

(2)

Port security coordinators

The Secretary may establish 1 or more port security coordinators at each port of entry located on the northern border or the southern border—

(A)

to assist in conducting a vulnerability assessment at such port; and

(B)

to provide other assistance with the preparation of the plan required in subsection (a).

164.

Expansion of commerce security programs

(a)

Customs-Trade Partnership Against Terrorism

(1)

In general

Not later than 180 days after the date of enactment of this Act, the Commissioner, in consultation with the Secretary, shall develop a plan to expand the programs of the Customs–Trade Partnership Against Terrorism established pursuant to section 211 of the SAFE Port Act (6 U.S.C. 961), including adding additional personnel for such programs, along the northern border and southern border, including the following programs:

(A)

The Business Anti-Smuggling Coalition.

(B)

The Carrier Initiative Program.

(C)

The Americas Counter Smuggling Initiative.

(D)

The Container Security Initiative established pursuant to section 205 of the SAFE Port Act (6 U.S.C. 945).

(E)

The Free and Secure Trade Initiative.

(F)

Other industry partnership programs administered by the Commissioner.

(2)

Southern border demonstration program

Not later than 180 days after the date of enactment of this Act, the Commissioner shall implement, on a demonstration basis, at least 1 Customs–Trade Partnership Against Terrorism program, which has been successfully implemented along the northern border, along the southern border.

(b)

Demonstration Program

Not later than 180 days after the date of enactment of this Act, the Commissioner shall establish a demonstration program to develop a cooperative trade security system to improve supply chain security.

165.

Port of entry technology demonstration program

(a)

Establishment

The Secretary shall carry out a technology demonstration program to—

(1)

test and evaluate new port of entry technologies;

(2)

refine port of entry technologies and operational concepts; and

(3)

train personnel under realistic conditions.

(b)

Technology and Facilities

(1)

Technology testing

Under the technology demonstration program, the Secretary shall test technologies that enhance port of entry operations, including operations related to—

(A)

inspections;

(B)

communications;

(C)

port tracking;

(D)

identification of persons and cargo;

(E)

sensory devices;

(F)

personal detection;

(G)

decision support; and

(H)

the detection and identification of weapons of mass destruction.

(2)

Development of facilities

At a demonstration site selected pursuant to subsection (c)(2), the Secretary shall develop facilities to provide appropriate training to law enforcement personnel who have responsibility for border security, including—

(A)

cross-training among agencies;

(B)

advanced law enforcement training; and

(C)

equipment orientation.

(c)

Demonstration Sites

(1)

Number

The Secretary shall carry out the demonstration program at not less than 3 sites and not more than 5 sites.

(2)

Selection criteria

To ensure that at least 1 of the facilities selected as a port of entry demonstration site for the demonstration program has the most up-to-date design, contains sufficient space to conduct the demonstration program, has a traffic volume low enough to easily incorporate new technologies without interrupting normal processing activity, and is able to efficiently carry out demonstration and port of entry operations, at least 1 port of entry selected as a demonstration site shall—

(A)

have been established not more than 15 years before the date of enactment of this Act;

(B)

consist of not less than 65 acres, with the possibility of expansion to not less than 25 adjacent acres; and

(C)

have serviced an average of not more than 50,000 vehicles per month during the 1-year period ending on the date of enactment of this Act.

(d)

Relationship With Other Agencies

The Secretary shall permit personnel from an appropriate Federal or State agency to utilize a demonstration site described in subsection (c) to test technologies that enhance port of entry operations, including technologies described in subparagraphs (A) through (H) of subsection (b)(1).

(e)

Report

(1)

Requirement

Not later than 1 year after the date of enactment of this Act, and annually thereafter, the Secretary shall submit to Congress a report on the activities carried out at each demonstration site under the technology demonstration program established under this section.

(2)

Content

The report submitted under paragraph (1) shall include an assessment by the Secretary of the feasibility of incorporating any demonstrated technology for use throughout United States Customs and Border Protection.

166.

Authorization of appropriations

(a)

In General

In addition to any funds otherwise available, there are authorized to be appropriated such sums as may be necessary for the fiscal years 2008 through 2012 to carry out this subtitle.

(b)

International Agreements

Amounts appropriated pursuant to the authorization of appropriations in subsection (a) may be used for the implementation of projects described in the Declaration on Embracing Technology and Cooperation to Promote the Secure and Efficient Flow of People and Commerce across our Shared Border between the United States and Mexico, agreed to March 22, 2002, Monterrey, Mexico or the Smart Border Declaration between the United States and Canada, agreed to December 12, 2001, Ottawa, Canada that are consistent with the provisions of this subtitle.

H

Safe and Secure Detention

171.

Definitions

In this subtitle:

(1)

Asylum seeker

The term asylum seeker means an applicant for asylum under section 208 of the Immigration and Nationality Act (8 U.S.C. 1158) or for withholding of removal under section 241(b)(3) of that Act (8 U.S.C. 1231(b)(3)) or an alien who indicates an intention to apply for relief under either such section and does not include a person with respect to whom a final adjudication denying an application made under either such section has been entered.

(2)

Credible fear of persecution

The term credible fear of persecution has the meaning given that term in section 235(b)(1)(B)(v) of the Immigration and Nationality Act (8 U.S.C. 1225(b)(1)(B)(v)).

(3)

Detainee

The term detainee means an alien in the Department's custody held in a detention facility.

(4)

Detention facility

The term detention facility means any Federal facility in which an asylum seeker, an alien detained pending the outcome of a removal proceeding, or an alien detained pending the execution of a final order of removal, is detained for more than 72 hours, or any other facility in which such detention services are provided to the Federal Government by contract, and does not include detention at any port of entry in the United States.

(5)

Reasonable fear of persecution or torture

The term reasonable fear of persecution or torture has the meaning described in section 208.31 of title 8, Code of Federal Regulations.

(6)

Standard

The term standard means any policy, procedure, or other requirement.

(7)

Vulnerable populations

The term vulnerable populations means classes of aliens subject to the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) who have special needs requiring special consideration and treatment by virtue of their vulnerable characteristics, including experiences of, or risk of, abuse, mistreatment, or other serious harms threatening their health or safety. Vulnerable populations include the following:

(A)

Asylum seekers.

(B)

Refugees admitted under section 207 of the Immigration and Nationality Act (8 U.S.C. 1157) and individuals seeking such admission.

(C)

Aliens whose deportation is being withheld under section 243(h) of the Immigration and Nationality Act (as in effect immediately before the effective date of section 307 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Public Law 104–208; 110 Stat. 3009–612)) or section 241(b)(3) of the Immigration and Nationality Act (8 U.S.C. 1231(b)(3)).

(D)

Aliens granted or seeking protection under article 3 of the Convention Against Torture and other Cruel, Inhumane, or Degrading Treatment or Punishment, done at New York, December 10, 1994.

(E)

Applicants for relief and benefits under the Immigration and Nationality Act pursuant to the amendments made by the Trafficking Victims Protection Act of 2000 (division A of Public Law 106–386; 114 Stat. 1464), including applicants for nonimmigrant status under subparagraph (T) or (U) of section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)).

(F)

Applicants for relief and benefits under the Immigration and Nationality Act pursuant to the amendments made by the Violence Against Women Act of 2000 (division B of Public Law 106–386; 114 Stat. 1491).

(G)

Unaccompanied alien children (as defined by 462(g) of the Homeland Security Act of 2002 (6 U.S.C. 279(g)).

172.

Recording secondary inspection interviews

(a)

In general

The Secretary shall establish quality assurance procedures to ensure the accuracy and verifiability of signed or sworn statements taken by employees of the Department exercising expedited removal authority under section 235(b) of the Immigration and Nationality Act (8 U.S.C. 1225(b)).

(b)

Factors relating to sworn statements

Where practicable, as determined by the sole and unreviewable discretion of the Secretary, the quality assurance procedures established pursuant to this section shall include taped interviews to ensure the accuracy and verifiability of signed or sworn statements taken by employees of the Department.

(c)

Interpreters

The Secretary shall ensure that a professional fluent interpreter is used when the interviewing officer does not speak a language understood by the alien and there is no other Federal, State, or local government employee available who is able to interpret effectively, accurately, and impartially.

173.

Procedures governing detention decisions

Section 236 (8 U.S.C. 1226) is amended—

(1)

in subsection (a)—

(A)

in the matter preceding paragraph (1)—

(i)

in the first sentence by striking Attorney General and inserting Secretary of Homeland Security;

(ii)

by striking (c) and inserting (d); and

(iii)

in the second sentence by striking Attorney General and inserting Secretary;

(B)

in paragraph (2)—

(i)

in subparagraph (A)—

(I)

by striking Attorney General and inserting Secretary; and

(II)

by striking or at the end;

(ii)

in subparagraph (B), by striking but at the end; and

(iii)

by inserting after subparagraph (B) the following:

(C)

the alien's own recognizance; or

(D)

a secure alternatives program as provided for in this section; but

;

(2)

by redesignating subsections (b), (c), (d), and (e) as subsections (d), (e), (f), and (h), respectively;

(3)

by inserting after subsection (a) the following new subsections:

(b)

Custody decisions

(1)

In general

In the case of a decision under subsection (a) or (d), the following shall apply:

(A)

The decision shall be made in writing and shall be served upon the alien. A decision to continue detention without bond or parole shall specify in writing the reasons for that decision.

(B)

The decision shall be served upon the alien within 72 hours of the alien's detention or, in the case of an alien subject to section 235 or 241(a)(5) who must establish a credible fear of persecution or a reasonable fear of persecution or torture in order to proceed in immigration court, within 72 hours of a positive credible fear of persecution or reasonable fear of persecution or torture determination.

(2)

Criteria to be considered

The criteria to be considered by the Secretary and the Attorney General in making a custody decision shall include—

(A)

whether the alien poses a risk to public safety or national security;

(B)

whether the alien is likely to appear for immigration proceedings; and

(C)

any other relevant factors.

(3)

Custody redetermination

An alien subject to this section may at any time after being served with the Secretary’s decision under subsections (a) or (d) request a redetermination of that decision by an immigration judge. All decisions by the Secretary to detain without bond or parole shall be subject to redetermination by an immigration judge within 2 weeks from the time the alien was served with the decision, unless waived by the alien. The alien may request a further redetermination upon a showing of a material change in circumstances since the last redetermination hearing.

(c)

Exception for mandatory detention

Subsection (b) shall not apply to any alien who is subject to mandatory detention under section  235(b)(1)(B)(iii)(IV), 236(c), or 236A or who has a final order of removal and has no proceedings pending before the Executive Office for Immigration Review.

;

(4)

in subsection (d), as redesignated—

(A)

by striking Attorney General and inserting Secretary; and

(B)

by striking or parole and inserting , parole, or decision to release;;

(5)

in subsection (e), as redesignated—

(A)

by striking Attorney General and inserting Secretary each place it appears; and

(B)

in paragraph (2), by inserting or for humanitarian reasons, after such an investigation,;

(6)

in subsection (f), as redesignated—

(A)

in the matter preceding paragraph (1), by striking Attorney General and inserting Secretary;

(B)

in paragraph (1), in subparagraphs (A) and (B), by striking Service and inserting Department of Homeland Security; and

(C)

in paragraph (3), by striking Service and inserting Secretary of Homeland Security;

(7)

by inserting after subsection (f), as redesignated, the following new subparagraph:

(g)

Administrative Review

If an immigration judge’s custody decision has been stayed by the action of an officer or employee of the Department of Homeland Security, the stay shall expire in 30 days, unless the Board of Immigration Appeals before that time, and upon motion, enters an order continuing the stay.

; and

(8)

in subsection (h), as redesignated—

(A)

by striking Attorney General’s and inserting Secretary of Homeland Security’s; and

(B)

by striking Attorney General and inserting Secretary.

174.

Legal orientation program

(a)

In general

The Attorney General, in consultation with the Secretary, shall ensure that all detained aliens in immigration and asylum proceedings receive legal orientation through a program administered and implemented by the Executive Office for Immigration Review of the Department of Justice.

(b)

Content of program

The legal orientation program developed pursuant to this section shall be based on the Legal Orientation Program carried out by the Executive Office for Immigration Review on the date of the enactment of this Act.

(c)

Expansion of legal assistance

The Secretary shall ensure the expansion through the United States Citizenship and Immigration Service of public-private partnerships that facilitate pro bono counseling and legal assistance for asylum seekers awaiting a credible fear of persecution interview. The pro bono counseling and legal assistance programs developed pursuant to this subsection shall be based on the pilot program developed in Arlington, Virginia by the United States Citizenship and Immigration Service.

175.

Conditions of detention

(a)

In general

The Secretary shall ensure that standards governing conditions and procedures at detention facilities are fully implemented and enforced, and that all detention facilities comply with the standards.

(b)

Procedures and standards

The Secretary shall promulgate new standards, or modify existing detention standards, to improve conditions in detention facilities. The improvements shall address at a minimum the following policies and procedures:

(1)

Fair and humane treatment

Procedures to ensure that detainees are not subject to degrading or inhumane treatment such as verbal or physical abuse or harassment, sexual abuse or harassment, or arbitrary punishment.

(2)

Limitations on shackling

Procedures limiting the use of shackling, handcuffing, solitary confinement, and strip searches of detainees to situations where the use of such techniques is necessitated by security interests or other extraordinary circumstances.

(3)

Investigation of grievances

Procedures for the prompt and effective investigation of grievances raised by detainees, including review of grievances by officials of the Department who do not work at the same detention facility where the detainee filing the grievance is detained.

(4)

Access to telephones

Procedures permitting detainees sufficient access to telephones, and the ability to contact, free of charge, legal representatives, the immigration courts, the Board of Immigration Appeals, and the Federal courts through confidential toll-free numbers.

(5)

Location of facilities

Location of detention facilities, to the extent practicable, near sources of free or low-cost legal representation with expertise in asylum or immigration law.

(6)

Procedures governing transfers of detainees

Procedures governing the transfer of a detainee that take into account—

(A)

the detainee's access to legal representatives; and

(B)

the proximity of the facility to the venue of the asylum or removal proceeding.

(7)

Quality of medical care

Prompt and adequate medical care provided at no cost to the detainee, including dental care, eye care, mental health care, individual and group counseling, medical dietary needs, and other medically necessary specialized care. Medical facilities in all detention facilities used by the Department shall maintain current accreditation by the National Commission on Correctional Health Care (NCCHC). Requirements that each medical facility that is not accredited by the Joint Commission on the Accreditation of Health Care Organizations (JCAHO) will seek to obtain such accreditation. Maintenance of complete medical records for every detainee which shall be made available upon request to a detainee, his legal representative, or other authorized individuals.

(8)

Translation capabilities

The employment of detention facility staff that, to the extent practicable, are qualified in the languages represented in the population of detainees at a detention facility, and the provision of alternative translation services when necessary.

(9)

Recreational programs and activities

Daily access to indoor and outdoor recreational programs and activities.

(c)

Special standards for noncriminal detainees

The Secretary shall promulgate new standards, or modifications to existing standards, that—

(1)

recognize the special characteristics of noncriminal, nonviolent detainees, and ensure that procedures and conditions of detention are appropriate for a noncriminal population; and

(2)

ensure that noncriminal detainees are separated from inmates with criminal convictions, pretrial inmates facing criminal prosecution, and those inmates exhibiting violent behavior while in detention.

(d)

Special standards for vulnerable populations

The Secretary shall promulgate new standards, or modifications to existing standards, that—

(1)

recognize the unique needs of asylum seekers, victims of torture and trafficking, families with children, detainees who do not speak English, detainees with special religious, cultural or spiritual considerations, and other vulnerable populations; and

(2)

ensure that procedures and conditions of detention are appropriate for the populations listed in this subsection.

(e)

Training of personnel

(1)

In general

The Secretary shall ensure that personnel in detention facilities are given specialized training to better understand and work with the population of detainees held at the facilities where such personnel work. The training should address the unique needs of—

(A)

asylum seekers;

(B)

victims of torture or other trauma; and

(C)

other vulnerable populations.

(2)

Specialized training

The training required by this subsection shall be designed to better enable personnel to work with detainees from different countries, and detainees who cannot speak English. The training shall emphasize that many detainees have no criminal records and are being held for civil violations.

176.

Office of Detention Oversight

(a)

Establishment of the Office

(1)

In general

There shall be established within the Department an Office of Detention Oversight (in this section referred to as the Office).

(2)

Head of the office

There shall be at the head of the Office an Administrator who shall be appointed by, and shall report to, the Secretary.

(3)

Schedule

The Office shall be established and the Administrator of the Office appointed not later than 6 months after the date of enactment of this Act.

(b)

Responsibilities of the Office

(1)

Inspections of detention centers

The Administrator of the Office shall—

(A)

undertake frequent and unannounced inspections of all detention facilities;

(B)

develop a procedure for any detainee or the detainee’s representative to file a written complaint directly with the Office; and

(C)

report to the Secretary and to the Assistant Secretary of Homeland Security for United States Immigration and Customs Enforcement all findings of a detention facility’s noncompliance with detention standards.

(2)

Investigations

The Administrator of the Office shall—

(A)

initiate investigations, as appropriate, into allegations of systemic problems at detention facilities or incidents that constitute serious violations of detention standards;

(B)

report to the Secretary and the Assistant Secretary of Homeland Security for United States Immigration and Customs Enforcement the results of all investigations; and

(C)

refer matters, where appropriate, for further action to—

(i)

the Department of Justice;

(ii)

the Office of the Inspector General of the Department;

(iii)

the Office of Civil Rights and Civil Liberties of the Department; or

(iv)

any other relevant office of agency.

(3)

Report to Congress

(A)

In general

The Administrator of the Office shall submit to the Secretary, the Committee on the Judiciary and the Committee on Homeland Security and Governmental Affairs of the Senate, and the Committee on the Judiciary and the Committee on Homeland Security of the House of Representatives an annual report on the Administrator's findings on detention conditions and the results of the investigations carried out by the Administrator.

(B)

Contents of report

Each report required by subparagraph (A) shall include—

(i)

a description of the actions to remedy findings of noncompliance or other problems that are taken by the Secretary or the Assistant Secretary of Homeland Security for United States Immigration and Customs Enforcement, and each detention facility found to be in noncompliance; and

(ii)

information regarding whether such actions were successful and resulted in compliance with detention standards.

(4)

Review of complaints by detainees

The Administrator of the Office shall establish procedures to receive and review complaints of violations of the detention standards promulgated by the Secretary. The procedures shall protect the anonymity of the claimant, including detainees, employees, or others, from retaliation.

(c)

Cooperation with other offices and agencies

Whenever appropriate, the Administrator of the Office shall cooperate and coordinate its activities with—

(1)

the Office of the Inspector General of the Department;

(2)

the Office of Civil Rights and Civil Liberties of the Department;

(3)

the Privacy Officer of the Department;

(4)

the Civil Rights Division of the Department of Justice; or

(5)

any other relevant office or agency.

177.

Secure alternatives program

(a)

Establishment of program

The Secretary shall establish a secure alternatives program under which an alien who has been detained may be released under enhanced supervision to prevent the alien from absconding and to ensure that the alien makes appearances related to such detention.

(b)

Program requirements

(1)

Nationwide implementation

The Secretary shall facilitate the development of the secure alternatives program on a nationwide basis, as a continuation of existing pilot programs such as the Intensive Supervision Appearance Program (ISAP) developed by the Department.

(2)

Utilization of alternatives

The secure alternatives program shall utilize a continuum of alternatives based on the alien's need for supervision, including placement of the alien with an individual or organizational sponsor, or in a supervised group home.

(3)

Aliens eligible for secure alternatives program

(A)

In general

Aliens who would otherwise be subject to detention based on a consideration of the release criteria in section 236(b)(2), or who are released pursuant to section 236(e)(2), shall be considered for the secure alternatives program.

(B)

Design of programs

Secure alternatives programs shall be designed to ensure sufficient supervision of the population described in subparagraph (A).

(4)

Contracts

The Secretary shall enter into contracts with qualified nongovernmental entities to implement the secure alternatives program.

(5)

Other considerations

In designing such program, the Secretary shall—

(A)

consult with relevant experts; and

(B)

consider programs that have proven successful in the past, including the Appearance Assistance Program developed by the Vera Institute and the Intensive Supervision Appearance Program (ISAP) developed by the Department.

178.

Less restrictive detention facilities

(a)

Construction

The Secretary shall facilitate the construction or use of secure but less restrictive detention facilities.

(b)

Criteria

In developing detention facilities pursuant to this section, the Secretary shall—

(1)

consider the design, operation, and conditions of existing secure but less restrictive detention facilities, such as the Department's detention facilities in Broward County, Florida, and Berks County, Pennsylvania;

(2)

to the extent practicable, construct or use detention facilities where—

(A)

movement within and between indoor and outdoor areas of the facility is subject to minimal restrictions;

(B)

detainees have ready access to social, psychological, and medical services;

(C)

detainees with special needs, including those who have experienced trauma or torture, have ready access to services and treatment addressing their needs;

(D)

detainees have ready access to meaningful programmatic and recreational activities;

(E)

detainees are permitted contact visits with legal representatives, family members, and others;

(F)

detainees have access to private toilet and shower facilities;

(G)

prison-style uniforms or jumpsuits are not required; and

(H)

special facilities are provided to families with children.

(c)

Facilities for families with children

For situations where release or secure alternatives programs are not an option, the Secretary shall ensure that special detention facilities are specifically designed to house parents with their minor children, including ensuring that—

(1)

procedures and conditions of detention are appropriate for families with minor children; and

(2)

living and sleeping quarters for parents and minor children are not physically separated.

(d)

Placement in nonpunitive facilities

Priority for placement in less restrictive facilities shall be given to asylum seekers, families with minor children, other vulnerable populations, and nonviolent criminal detainees.

(e)

Procedures and standards

Where necessary, the Secretary shall promulgate new standards, or modify existing detention standards, to promote the development of less restrictive detention facilities.

179.

Authorization of appropriations; effective date

(a)

Authorization of appropriations

There are authorized to be appropriated such sums as are necessary to carry out this subtitle.

(b)

Effective date

This subtitle and the amendments made by this subtitle shall take effect on the date that is 6 months after the date of enactment of this Act.

I

Other Border Security Initiatives

181.

Combating human smuggling

(a)

Requirement for Plan

The Secretary shall develop and implement a plan to improve coordination among United States Immigration and Customs Enforcement and United States Customs and Border Protection and any other Federal, State, local, or tribal authorities, as determined appropriate by the Secretary, to improve coordination efforts to combat human smuggling.

(b)

Content

In developing the plan required by subsection (a), the Secretary shall consider—

(1)

the interoperability of databases utilized to prevent human smuggling;

(2)

adequate and effective personnel training;

(3)

methods and programs to effectively target networks that engage in such smuggling;

(4)

effective utilization of—

(A)

visas for victims of trafficking and other crimes; and

(B)

investigatory techniques, equipment, and procedures that prevent, detect, and prosecute international money laundering and other operations that are utilized in smuggling;

(5)

joint measures, with the Secretary of State, to enhance intelligence sharing and cooperation with foreign governments whose citizens are preyed on by human smugglers; and

(6)

other measures that the Secretary considers appropriate to combat human smuggling.

(c)

Report

Not later than 1 year after implementing the plan described in subsection (a), the Secretary shall submit to Congress a report on such plan, including any recommendations for legislative action to improve efforts to combating human smuggling.

(d)

Savings Provision

Nothing in this section may be construed to provide additional authority to any State or local entity to enforce Federal immigration laws.

182.

Screening of municipal solid waste

(a)

Definitions

In this section:

(1)

Commercial motor vehicle

The term commercial motor vehicle has the meaning given the term in section 31101 of title 49, United States Code.

(2)

Commissioner

The term Commissioner means the Commissioner of United States Customs and Border Protection.

(3)

Municipal solid waste

The term municipal solid waste includes sludge (as defined in section 1004 of the Solid Waste Disposal Act (42 U.S.C. 6903)).

(b)

Report to Congress

Not later than 90 days after the date of enactment of this Act, the Commissioner shall submit to Congress a report that—

(1)

indicates whether the methodologies and technologies used by United States Customs and Border Protection to screen for and detect the presence of chemical, nuclear, biological, and radiological weapons in municipal solid waste are as effective as the methodologies and technologies used by United States Customs and Border Protection to screen for such weapons in other items of commerce entering the United States through commercial motor vehicle transport; and

(2)

if the report indicates that the methodologies and technologies used to screen municipal solid waste are less effective than the methodologies and technologies used to screen other items of commerce, identifies the actions that United States Customs and Border Protection will take to achieve the same level of effectiveness in the screening of municipal solid waste, including actions necessary to meet the need for additional screening technologies.

(c)

Impact on Commercial Motor Vehicles

If the Commissioner fails to fully implement an action identified under subsection (b)(2) before the earlier of the date that is 180 days after the date on which the report under subsection (b) is required to be submitted or the date that is 180 days after the date on which the report is submitted, the Secretary shall deny entry into the United States of any commercial motor vehicle carrying municipal solid waste until the Secretary certifies to Congress that the methodologies and technologies used by United States Customs and Border Protection to screen for and detect the presence of chemical, nuclear, biological, and radiological weapons in municipal solid waste are as effective as the methodologies and technologies used by United States Customs and Border Protection to screen for such weapons in other items of commerce entering into the United States through commercial motor vehicle transport.

183.

Border security on certain Federal land

(a)

Definitions

In this section:

(1)

Protected land

The term protected land means land under the jurisdiction of the Secretary concerned.

(2)

Secretary concerned

The term Secretary concerned means—

(A)

with respect to land under the jurisdiction of the Secretary of Agriculture, the Secretary of Agriculture; and

(B)

with respect to land under the jurisdiction of the Secretary of the Interior, the Secretary of the Interior.

(b)

Support for Border Security Needs

(1)

In general

To gain operational control over the international land borders of the United States and to prevent the entry of terrorists, unlawful aliens, narcotics, and other contraband into the United States, the Secretary, in cooperation with the Secretary concerned, shall provide—

(A)

increased United States Customs and Border Protection personnel to secure protected land along the international land borders of the United States;

(B)

Federal land resource training for United States Customs and Border Protection agents dedicated to protected land; and

(C)

unmanned aerial vehicles, aerial assets, remote video surveillance camera systems, and sensors on protected land that is directly adjacent to the international land border of the United States, with priority given to units of the National Park System.

(2)

Coordination

In providing training for United States Customs and Border Protection agents under paragraph (1)(B), the Secretary shall coordinate with the Secretary concerned to ensure that the training is appropriate to the mission of the National Park Service, the United States Fish and Wildlife Service, the Forest Service, or the relevant agency of the Department of the Interior or the Department of Agriculture to minimize the adverse impact on natural and cultural resources from border protection activities.

(c)

Inventory of costs and activities

The Secretary concerned shall develop and submit to the Secretary an inventory of costs incurred by the Secretary concerned relating to illegal border activity, including the cost of equipment, training, recurring maintenance, construction of facilities, restoration of natural and cultural resources, recapitalization of facilities, and operations.

(d)

Recommendations

The Secretary shall—

(1)

develop joint recommendations with the National Park Service, the United States Fish and Wildlife Service, and the Forest Service for an appropriate cost recovery mechanism relating to items identified in subsection (c); and

(2)

not later than March 31, 2008, submit to the Committee on the Judiciary and the Committee on Energy and Natural Resources of the Senate and the Committee on the Judiciary and the Committee on Natural Resources of the House of Representatives the recommendations developed under paragraph (1).

(e)

Border protection strategy

The Secretary, the Secretary of the Interior, and the Secretary of Agriculture shall jointly develop a border protection strategy that supports the border security needs of the United States in the manner that best protects—

(1)

units of the National Park System;

(2)

National Forest System land;

(3)

land under the jurisdiction of the United States Fish and Wildlife Service; and

(4)

other relevant land under the jurisdiction of the Secretary of the Interior or the Secretary of Agriculture.

II

Interior Enforcement

A

Reducing the number of illegal aliens in the United States

201.

Incarceration of criminal aliens

(a)

Institutional removal program

(1)

Continuation

The Secretary shall continue to operate the Institutional Removal Program (referred to in this section as the Program) or shall develop and implement another program to—

(A)

identify removable criminal aliens in Federal and State correctional facilities;

(B)

ensure that such aliens are not released into the community; and

(C)

remove such aliens from the United States after the completion of their sentences, in accordance with section 241 of the Immigration and Nationality Act (8 U.S.C. 1231), as amended by section 231 of this Act.

(2)

Expansion

The Secretary may extend the scope of the Program to all States.

(b)

Technology usage

Technology, such as videoconferencing, shall be used to the maximum extent practicable to make the Program available in remote locations. Mobile access to Federal databases of aliens, such as the Automated Biometric Fingerprint Identification System (IDENT), and live scan technology shall be used to the maximum extent practicable to make these resources available to State and local law enforcement agencies in remote locations.

(c)

Report to Congress

Not later than 6 months after the date of enactment of this Act, and annually thereafter, the Secretary shall submit to Congress a report on the participation of States in the Program and in any other program carried out pursuant to subsection (a).

(d)

Authorization of appropriations

There are authorized to be appropriated such sums as may be necessary in each of the fiscal years 2008 through 2012 to carry out this section.

202.

Encouraging aliens to depart voluntarily

(a)

In general

Section 240B (8 U.S.C. 1229c) is amended—

(1)

in subsection (a)—

(A)

by amending paragraph (1) to read as follows:

(1)

In general

If an alien is not removable under paragraph (2)(A)(iii) or (4) of section 237(a)—

(A)

the Secretary of Homeland Security may permit the alien to voluntarily depart the United States at the alien’s own expense under this subsection instead of being subject to proceedings under section 240; or

(B)

the Attorney General may permit the alien to voluntarily depart the United States at the alien’s own expense under this subsection after the initiation of removal proceedings under section 240 and before the conclusion of such proceedings before an immigration judge.

;

(B)

in paragraph (2), by amending subparagraph (A) to read as follows:

(A)

In general

(i)

Instead of removal

Subject to subparagraph (B), permission to voluntarily depart under paragraph (1)(A) shall not be valid for any period in excess of 120 days. The Secretary may require an alien permitted to voluntarily depart under paragraph (1)(A) to post a voluntary departure bond, to be surrendered upon proof that the alien has departed the United States within the time specified.

;

(ii)

Before the conclusion of removal proceedings

Permission to voluntarily depart under paragraph (1)(B) shall not be valid for any period longer than 60 days, and may be granted only after a finding that the alien has the means to depart the United States and intends to do so. An immigration judge may require an alien to voluntarily depart under paragraph (1)(B) to post a voluntary departure bond, in an amount necessary to ensure that the alien will depart, to be surrendered upon proof that the alien has departed the United States within the time specified. An immigration judge may waive the requirement to post a voluntary departure bond in individual cases upon a finding that the alien has presented compelling evidence that the posting of a bond will pose a serious financial hardship and the alien has presented credible evidence that such a bond is unnecessary to guarantee timely departure.

; and

(C)

by striking paragraph (3);

(2)

by amending subsection (c) to read as follows:

(c)

Conditions on voluntary departure

(1)

Voluntary departure agreement

Voluntary departure under this section may only be granted as part of an affirmative agreement by the alien.

(2)

Concessions by the Secretary

In connection with the alien’s agreement to depart voluntarily under paragraph (1)(A), the Secretary of Homeland Security may agree to a reduction in the period of inadmissibility under subparagraph (A) or (B)(i) of section 212(a)(9).

(3)

Advisals

Agreements relating to voluntary departure granted during removal proceedings under section 240, or at the conclusion of such proceedings, shall be presented on the record before the immigration judge. The immigration judge shall advise the alien of the consequences of a voluntary departure agreement before accepting such agreement.

(4)

Failure to comply with agreement

If an alien agrees to voluntary departure under this section and fails to depart the United States within the time allowed for voluntary departure or fails to comply with any other terms of the agreement (including failure to timely post any required bond), the alien is—

(A)

ineligible for the benefits of the agreement;

(B)

subject to the penalties described in subsection (d); and

(C)

subject to an alternate order of removal if voluntary departure was granted under subsection (a)(1)(B) or (b).

(5)

Voluntary departure period not affected

Except as expressly agreed to by the Secretary in writing in the exercise of the Secretary’s discretion before the expiration of the period allowed for voluntary departure, no motion, appeal, application, petition, or petition for review shall affect, reinstate, enjoin, delay, stay, or toll the alien’s obligation to depart from the United States during the period agreed to by the alien and the Secretary.

; and

(3)

by amending subsection (d) to read as follows:

(d)

Penalties for failure To depart

If an alien is permitted to voluntarily depart under this section and fails to voluntarily depart from the United States within the time period specified or otherwise violates the terms of a voluntary departure agreement, the alien will be subject to the following penalties:

(1)

Civil penalty

The alien shall be liable for a civil penalty of $3,000. The order allowing voluntary departure shall specify the amount of the penalty, which shall be acknowledged by the alien on the record. If the Secretary thereafter establishes that the alien failed to depart voluntarily within the time allowed, no further procedure will be necessary to establish the amount of the penalty, and the Secretary may collect the civil penalty at any time thereafter and by whatever means provided by law. An alien will be ineligible for any benefits under this chapter until this civil penalty is paid.

(2)

Ineligibility for relief

The alien shall be ineligible during the time the alien remains in the United States and for a period of 10 years after the alien’s departure for any further relief under this section and sections 240A, 245, 248, and 249. The order permitting the alien to depart voluntarily shall inform the alien of the penalties under this subsection.

; and

(4)

by amending subsection (e) to read as follows:

(e)

Eligibility

(1)

Prior grant of voluntary departure

An alien shall not be permitted to voluntarily depart under this section if the Secretary of Homeland Security or the Attorney General previously permitted the alien to depart voluntarily under this section on or after the date of the enactment of the STRIVE Act of 2007.

(2)

Rulemaking

The Secretary may promulgate regulations to limit eligibility or impose additional conditions for voluntary departure under subsection (a)(1)(A) for any class of aliens.

.

(b)

Effective date

The amendments made by this section shall apply with respect to all orders granting voluntary departure under section 240B of the Immigration and Nationality Act (8 U.S.C. 1229c) made on or after the date that is 180 days after the date of enactment of this Act.

203.

Deterring aliens ordered removed from remaining in the United States unlawfully

Section 212(a)(9)(A) (8 U.S.C. 1182(a)(9)(A)) is amended—

(1)

in clause (i), by striking seeks admission within 5 years of the date of such removal (or within 20 years and inserting seeks admission not later than 5 years after the date of the alien’s removal (or not later than 20 years after the alien’s removal; and

(2)

in clause (ii), by striking seeks admission within 10 years of the date of such alien’s departure or removal (or within 20 years of and inserting seeks admission not later than 10 years after the date of the alien’s departure or removal (or not later than 20 years after.

204.

Prohibition of the sale of firearms to, or the possession of firearms by certain aliens

Section 922 of title 18, United States Code, is amended—

(1)

in subsection (d)(5)—

(A)

in subparagraph (A), by striking or at the end;

(B)

in subparagraph (B), by striking (y)(2) and all that follows and inserting (y), is in a nonimmigrant classification; or; and

(C)

by adding at the end the following:

(C)

has been paroled into the United States under section 212(d)(5) of the Immigration and Nationality Act (8 U.S.C. 1182(d)(5));

;

(2)

in subsection (g)(5)—

(A)

in subparagraph (A), by striking or at the end;

(B)

in subparagraph (B), by striking (y)(2) and all that follows and inserting (y), is in a nonimmigrant classification; or; and

(C)

by adding at the end the following:

(C)

has been paroled into the United States under section 212(d)(5) of the Immigration and Nationality Act (8 U.S.C. 1182(d)(5));

; and

(3)

in subsection (y)—

(A)

in the heading, by striking Admitted Under Nonimmigrant Visas and inserting in a Nonimmigrant Classification;

(B)

in paragraph (1), by amending subparagraph (B) to read as follows:

(B)

the term nonimmigrant classification includes all classes of nonimmigrant aliens described in section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)), or otherwise described in the immigration laws (as defined in section 101(a)(17) of such Act).

;

(C)

in paragraph (2), by striking has been lawfully admitted to the United States under a nonimmigrant visa and inserting is in a nonimmigrant classification; and

(D)

in paragraph (3)(A), by striking Any individual who has been admitted to the United States under a nonimmigrant visa may receive a waiver from the requirements of subsection (g)(5) and inserting Any alien in a nonimmigrant classification may receive a waiver from the requirements of subsection (g)(5)(B).

205.

Uniform statute of limitations for certain Immigration, naturalization, and peonage offenses

(a)

In general

Section 3291 of title 18, United States Code, is amended to read as follows:

3291.

Immigration, naturalization, and peonage offenses

No person shall be prosecuted, tried, or punished for a violation of any section of chapters 69 (relating to nationality and citizenship offenses), 75 (relating to passport, visa, and immigration offenses), or 77 (relating to peonage, slavery, and trafficking in persons), for an attempt or conspiracy to violate any such section, for a violation of any criminal provision under section 243, 266, 274, 275, 276, 277, or 278 of the Immigration and Nationality Act (8 U.S.C. 1253, 1306, 1324, 1325, 1326, 1327, and 1328), or for an attempt or conspiracy to violate any such section, unless the indictment is returned or the information filed not later than 10 years after the commission of the offense.

.

(b)

Clerical amendment

The table of sections for chapter 213 of title 18, United States Code, is amended by striking the item relating to section 3291 and inserting the following:

3291. Immigration, naturalization, and peonage offenses.

.

206.

Expedited removal

(a)

In general

Section 238 (8 U.S.C. 1228) is amended—

(1)

by striking the section heading and inserting Expedited removal of criminal aliens;

(2)

in subsection (a), by striking the subsection heading and inserting: Expedited removal from correctional facilities.—;

(3)

in subsection (b), by striking the subsection heading and inserting: Removal of Criminal Aliens.—;

(4)

in subsection (b), by striking paragraphs (1) and (2) and inserting the following:

(1)

In general

The Secretary of Homeland Security may, in the case of an alien described in paragraph (2), determine the deportability of such alien and issue an order of removal pursuant to the procedures set forth in this subsection or section 240.

(2)

Aliens described

An alien is described in this paragraph if the alien—

(A)

has not been lawfully admitted to the United States for permanent residence; and

(B)

was convicted of any criminal offense establishing deportability under subparagraph (A)(iii) or (D)(i) of section 237(a)(2).

; and

(5)

by redesignating the subsection (c) that relates to judicial removal as subsection (d).

(b)

Effective date

The amendments made by this section shall take effect on the date of enactment of this Act and shall apply to all aliens apprehended or convicted on or after such date.

207.

Field agent allocation

(a)

In general

Section 103(f) (8 U.S.C. 1103(f)) is amended to read as follows:

(f)

Minimum number of agents in States

(1)

In general

The Secretary of Homeland Security shall allocate to each State—

(A)

not fewer than 40 full-time active duty agents of the Bureau of Immigration and Customs Enforcement to—

(i)

investigate immigration violations; and

(ii)

ensure the departure of all removable aliens; and

(B)

not fewer than 15 full-time active duty agents of United States Citizenship and Immigration Services to carry out immigration and naturalization adjudication functions.

(2)

Waiver

The Secretary may waive the application of paragraph (1) for any State with a population of less than 2,000,000, as most recently reported by the Bureau of the Census.

.

(b)

Effective date

The amendment made by subsection (a) shall take effect on the date that is 90 days after the date of the enactment of this Act.

(c)

Authorization of appropriations

There are authorized to be appropriated such sums as may be necessary to carry out this section.

208.

Streamlined processing of background checks conducted for immigration benefit applications and petitions

(a)

Information sharing; interagency task force

Section 105 (8 U.S.C. 1105) is amended by adding at the end the following:

(e)

Interagency task force

(1)

In general

The Secretary of Homeland Security shall establish an interagency task force to resolve cases in which an application or petition for an immigration benefit conferred under this Act has been delayed due to an outstanding background check investigation for more than 2 years after the date on which such application or petition was initially filed.

(2)

Membership

The interagency task force established under paragraph (1) shall include representatives from Federal agencies with immigration, law enforcement, or national security responsibilities under this Act.

.

(b)

Authorization of appropriations

There are authorized to be appropriated to the Director of the Federal Bureau of Investigation such sums as are necessary for each fiscal year, 2008 through 2012 for enhancements to existing systems for conducting background and security checks necessary to support immigration security and orderly processing of applications.

(c)

Report on background and security checks

(1)

In general

Not later than 180 days after the date of the enactment of this Act, the Director of the Federal Bureau of Investigation shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report on the background and security checks conducted by the Federal Bureau of Investigation on behalf of United States Citizenship and Immigration Services.

(2)

Content

The report required under paragraph (1) shall include—

(A)

a description of the background and security check program;

(B)

a statistical breakdown of the background and security check delays associated with different types of immigration applications;

(C)

a statistical breakdown of the background and security check delays by applicant country of origin; and

(D)

the steps that the Director of the Federal Bureau of Investigations is taking to expedite background and security checks that have been pending for more than 180 days.

(d)

Ensuring accountability in background check determinations

(1)

In general

Chapter 4 of title III (8 U.S.C. 1501 et seq.) is amended by adding at the end the following:

362.

Construction

(a)

In general

Nothing in this Act (other than section 241(b)(3)) or in any other provision of law (other than the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, done at New York, December 10, 1994, subject to any reservations, understandings, declarations, and provisos contained in the resolution of ratification of the Convention, as implemented by section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998 (Public Law 105–277; 8 U.S.C. 1231 note)) may be construed to require the Secretary of Homeland Security or the Attorney General to grant any application for asylum, adjustment of status, or naturalization, or grant any relief from removal under the immigration laws to—

(1)

any alien with respect to whom a national security, criminal, or other investigation or case is open or pending (including the issuance of an arrest warrant, detainer, or indictment) that is material to the alien’s eligibility for the status or benefit sought; or

(2)

any alien for whom all law enforcement and other background checks have not been conducted and resolved or the information related to such background checks have not provided to or assessed by the reviewing official.

(b)

Timeframes

Notwithstanding subsection (a), the Secretary of Homeland Security may not delay adjudication or document issuance beyond 180 days due to an outstanding background or security check unless the Secretary certifies that such background and security check may establish that the alien poses a risk to national security or public safety. The decision to delay shall be reviewed every 180 days, and such decision may not be delegated below the level of Assistant Secretary. An alien has no right to review or appeal the Secretary's decision to delay adjudication or issuance of documentation under this section, but remains entitled to interim work authorization.

.

(2)

Rulemaking

The Secretary of Homeland Security shall promulgate regulations that describe the conditions under which interim work authorization under paragraph (1) shall be issued.

(3)

Annual report to Congress

The Secretary of Homeland Security, the Attorney General, the Secretary of State, and the Secretary of Labor shall submit an annual report to Congress that includes—

(A)

the number of cases in which paragraph (1) or (2) of subsection (a) is invoked during the reporting period;

(B)

the total number of pending cases in each category at the end of the reporting period;

(C)

the resolution of cases finally decided during the reporting period; and

(D)

statistics on interim employment authorizations issued under this section.

(e)

Clerical amendment

The table of contents is amended by inserting after the item relating to section 361 the following:

Sec. 362. Construction.

.

(f)

Enhanced transparency of clearance process

(1)

Establishment

The Secretary and the Attorney General shall each establish an Office of the Public Advocate for Immigration Clearances within the Department and the Department of Justice, respectively. Each Office shall be headed by a Public Advocate.

(2)

Duties

Each Public Advocate shall—

(A)

serve as a public liaison for their respective Department for identifying and resolving delays in immigration processing caused by background check investigations; and

(B)

serve on the Interagency Task Force established under subsection (e) of section 105 of the Immigration and Nationality Act (8 U.S.C. 1105), as added by subsection (a).

209.

State criminal alien assistance program

(a)

Authorization of appropriations

Section 241(i)(5)(C) (8 U.S.C. 1231(i)(5)(C)) is amended by striking 2011 and inserting 2012.

(b)

Reimbursement of States for preconviction costs relating to the incarceration of illegal aliens

Section 241(i)(3)(A) (8 U.S.C. 1231(i)(3)(A)) is amended by inserting charged with or before convicted.

(c)

Reimbursement of States for indirect costs relating to the incarceration of illegal aliens

Section 501 of the Immigration Reform and Control Act of 1986 (8 U.S.C. 1365) is amended—

(1)

by amending subsection (a) to read as follows:

(a)

Reimbursement of States

Subject to the amounts provided in advance in appropriation Acts, the Secretary of Homeland Security shall reimburse a State for—

(1)

the costs incurred by the State for the imprisonment of any illegal alien or Cuban national who is convicted of a felony by such State; and

(2)

the indirect costs related to the imprisonment described in paragraph (1).

; and

(2)

by amending subsections (c) through (e) to read as follows:

(c)

Manner of allotment of reimbursements

Reimbursements under this section shall be allotted in a manner that gives special consideration for any State that—

(1)

shares a border with Mexico or Canada; or

(2)

includes within the State an area in which a large number of undocumented aliens reside relative to the general population of that area.

(d)

Definitions

In this section:

(1)

Indirect costs

The term indirect costs includes—

(A)

court costs, county attorney costs, detention costs, and criminal proceedings expenditures that do not involve going to trial;

(B)

indigent defense costs; and

(C)

unsupervised probation costs.

(2)

State

The term State has the meaning given such term in section 101(a)(36) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(36)).

(e)

Authorization of appropriations

There are authorized to be appropriated $200,000,000 for each of the fiscal years 2008 through 2012 to carry out subsection (a)(2).

.

210.

Transportation and processing of illegal aliens apprehended by State and local law enforcement officers

(a)

In general

The Secretary shall provide sufficient transportation and officers to take illegal aliens apprehended by State and local law enforcement officers into custody for processing at a detention facility operated by the Department.

(b)

Authorization of appropriations

There are authorized to be appropriated such sums as may be necessary for each of fiscal years 2008 through 2012 to carry out this section.

211.

Reducing illegal immigration and alien smuggling on tribal lands

(a)

Grants authorized

The Secretary may award grants to Indian tribes with lands adjacent to an international border of the United States that have been adversely affected by illegal immigration.

(b)

Use of funds

Grants awarded under subsection (a) may be used for—

(1)

law enforcement activities;

(2)

health care services;

(3)

environmental restoration; and

(4)

the preservation of cultural resources.

(c)

Report

Not later than 180 days after the date of the enactment of this Act, the Secretary shall submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives that—

(1)

describes the level of access of Border Patrol agents on tribal lands;

(2)

describes the extent to which enforcement of immigration laws may be improved by enhanced access to tribal lands;

(3)

contains a strategy for improving such access through cooperation with tribal authorities; and

(4)

identifies grants provided by the Department for Indian tribes, either directly or through State or local grants, relating to border security expenses.

(d)

Authorization of appropriations

There are authorized to be appropriated such sums as may be necessary for each of the fiscal years 2008 through 2012 to carry out this section.

212.

Mandatory address reporting requirements

(a)

Clarifying address reporting requirements

Section 265 (8 U.S.C. 1305) is amended—

(1)

in subsection (a)—

(A)

by striking notify the Attorney General in writing and inserting submit written or electronic notification to the Secretary of Homeland Security, in a manner approved by the Secretary,;

(B)

by striking the Attorney General may require and inserting the Secretary may require; and

(C)

by adding at the end the following: If the alien is involved in proceedings before an immigration judge or in an administrative appeal of such proceedings, the alien shall submit to the Attorney General the alien’s current address and a telephone number, if any, at which the alien may be contacted.;

(2)

in subsection (b), by striking Attorney General each place such term appears and inserting Secretary of Homeland Security;

(3)

in subsection (c), by striking given to such parent and inserting given by such parent; and

(4)

by adding at the end the following:

(d)

Address To be provided

(1)

In general

Except as otherwise provided by the Secretary under paragraph (2), an address provided by an alien under this section shall be the alien’s current residential mailing address, and shall not be a post office box or other nonresidential mailing address or the address of an attorney, representative, labor organization, or employer.

(2)

Specific requirements

The Secretary may provide specific requirements with respect to—

(A)

designated classes of aliens and special circumstances, including aliens who are employed at a remote location; and

(B)

the reporting of address information by aliens who are incarcerated in a Federal, State, or local correctional facility.

(3)

Detention

An alien who is being detained by the Secretary under this Act is not required to report the alien’s current address under this section during the time the alien remains in detention, but shall be required to notify the Secretary of the alien’s address under this section at the time of the alien’s release from detention.

(e)

Use of most recent address provided by the alien

(1)

In general

Notwithstanding any other provision of law, the Secretary may provide for the appropriate coordination and cross referencing of address information provided by an alien under this section with other information relating to the alien’s address under other Federal programs, including—

(A)

any information pertaining to the alien, which is submitted in any application, petition, or motion filed under this Act with the Secretary of Homeland Security, the Secretary of State, or the Secretary of Labor;

(B)

any information available to the Attorney General with respect to an alien in a proceeding before an immigration judge or an administrative appeal or judicial review of such proceeding;

(C)

any information collected with respect to nonimmigrant foreign students or exchange program participants under section 641 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1372); and

(D)

any information collected from State or local correctional agencies pursuant to the State Criminal Alien Assistance Program.

(2)

Reliance

The Secretary may rely on the most recent address provided by the alien under this section or section 264 to send to the alien any notice, form, document, or other matter pertaining to Federal immigration laws, including service of a notice to appear. The Attorney General and the Secretary may rely on the most recent address provided by the alien under section 239(a)(1)(F) to contact the alien about pending removal proceedings.

(3)

Obligation

The alien’s provision of an address for any other purpose under the Federal immigration laws does not excuse the alien’s obligation to submit timely notice of the alien’s address to the Secretary under this section (or to the Attorney General under section 239(a)(1)(F) with respect to an alien in a proceeding before an immigration judge or an administrative appeal of such proceeding).

(f)

Requirement for database

The Secretary of Homeland Security shall establish an electronic database to timely record and preserve addresses provided under this section.

.

(b)

Conforming changes with respect to registration requirements

Chapter 7 of title II (8 U.S.C. 1301 et seq.) is amended—

(1)

in section 262(c), by striking Attorney General and inserting Secretary of Homeland Security;

(2)

in section 263(a), by striking Attorney General and inserting Secretary of Homeland Security; and

(3)

in section 264—

(A)

in subsections (a), (b), (c), and (d), by striking Attorney General each place it appears and inserting Secretary of Homeland Security; and

(B)

in subsection (f)—

(i)

by striking Attorney General is authorized and inserting Secretary of Homeland Security and Attorney General are authorized; and

(ii)

by striking Attorney General or the Service and inserting Secretary or the Attorney General.

(c)

Effect on eligibility for immigration benefits

If an alien fails to comply with section 262, 263, or 265 of the Immigration and Nationality Act (8 U.S.C. 1302, 1303, and 1305) or section 264.1 of title 8, Code of Federal Regulations, or removal orders or voluntary departure agreements based on any such section for acts committed prior to the enactment of this Act such failure shall not affect the eligibility of the alien to apply for a benefit under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).

(d)

Technical amendments

Section 266 (8 U.S.C. 1306 ) is amended by striking Attorney General each place it appears and inserting Secretary of Homeland Security.

(e)

Effective dates

(1)

In general

Except as provided in paragraph (2), the amendments made by this section shall take effect on the date of the enactment of this Act.

(2)

Exceptions

The amendments made by paragraphs (1)(A), (1)(B), (2), and (3) of subsection (a) shall take effect as if enacted on March 1, 2003.

213.

State and local Enforcement of Federal Immigration laws

(a)

In general

Section 287(g) (8 U.S.C. 1357(g)) is amended—

(1)

in paragraph (2), by adding at the end If such training is provided by a State or political subdivision of a State to an officer or employee of such State or political subdivision of a State, the cost of such training (including applicable overtime costs) shall be reimbursed by the Secretary of Homeland Security.; and

(2)

in paragraph (4), by adding at the end The cost of any equipment required to be purchased under such written agreement and necessary to perform the functions under this subsection shall be reimbursed by the Secretary of Homeland Security..

(b)

Authorization of appropriations

There are authorized to be appropriated to the Secretary such sums as may be necessary to carry out this section and the amendments made by this section.

214.

Increased criminal penalties related to drunk driving

(a)

Inadmissibility

Section 212(a)(2) (8 U.S.C. 1182(a)(2)) is amended—

(1)

by redesignating subparagraph (F) as subparagraph (J); and

(2)

by inserting after subparagraph (E) the following:

(F)

Drunk drivers

Any alien who has been convicted of 3 offenses for driving under the influence and at least 1 of the offenses is a felony under Federal or State law, for which the alien was sentenced to more than 1 year imprisonment, is inadmissible.

.

(b)

Deportability

Section 237(a)(2) (8 U.S.C. 1227(a)(2)) is amended by adding at the end the following:

(F)

Drunk drivers

Unless the Secretary of Homeland Security or the Attorney General waives the application of this subparagraph, any alien who has been convicted of 3 offenses for driving under the influence and at least 1 of the offenses is a felony under Federal or State law, for which the alien was sentenced to more than 1 year imprisonment, is deportable.

.

(c)

Judicial advisal

(1)

In general

A court shall not accept a guilty plea for driving under the influence unless the court has administered to the defendant, on the record, the following adivsal:

If you are not a citizen of the United States, you are advised that conviction for driving under the influence, including conviction by entry of any plea, even if the conviction is later expunged, may result in deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.

.

(2)

Failure to advise

Upon request, the court shall allow the defendant a reasonable amount of additional time to consider the appropriateness of the plea in light of the advisement set out in paragraph (1). If the court fails to advise the defendant in accordance with paragraph (1) and the defendant shows that conviction of the offense to which the defendant pleaded guilty may result in the defendant’s deportation, exclusion from the United States, or denial of naturalization pursuant to the laws of the United States, the court, upon a motion by the defendant, shall vacate the judgment and permit the defendant to withdraw the plea and enter a plea of not guilty. If the record does not show that the court provided the required advisement, it shall be presumed that the defendant did not receive the advisement. The defendant shall not be required to disclose his or her immigration status at any time.

(d)

Conforming amendment

Section 212(h) (8 U.S.C. 1182(h)) is amended—

(1)

in the subsection heading, by striking subsection (a)(2)(A)(i)(I), (II), (B), (D),and (E) and inserting certain provisions in subsection (a)(2); and

(2)

in the matter preceding paragraph (1), by striking and (E) and inserting (E), and (F).

(e)

Effective date

The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to convictions entered on or after such date.

215.

Law enforcement authority of States and political subdivisions and transfer to Federal custody

Title II (8 U.S.C. 1151 et seq.) is amended by adding after section 240C the following:

240D.

Law enforcement authority of States and political subdivisions and transfer of aliens to Federal custody

(a)

Authority

Notwithstanding any other provision of law, law enforcement personnel of a State, or a political subdivision of a State, have the inherent authority of a sovereign entity to investigate, apprehend, arrest, detain, or transfer to Federal custody (including the transportation across State lines to detention centers) an alien for the purpose of assisting in the enforcement of the criminal provisions of the immigration laws of the United States in the normal course of carrying out the law enforcement duties of such personnel. This State authority has never been displaced or preempted by a Federal law.

(b)

Transfer

If the head of a law enforcement entity of a State (or a political subdivision of the State), exercising authority with respect to the detention of an alien convicted of a criminal offense, submits a request to the Secretary of Homeland Security, the Secretary shall—

(1)

determine the immigration status of the offender; and

(2)

report to the requesting agency whether the Department of Homeland Security intends to take custody of the offender for violations of Federal immigration laws, with an approximate timeframe for the transfer of custody.

(c)

Reimbursement

The Secretary of Homeland Security is authorized to use funds appropriated pursuant to the authorization of appropriations in section 241(i)(5) to reimburse a State, or a political subdivision of a State for activities described in subparagraph (a) or (b).

(d)

Requirement for appropriate security

The Secretary of Homeland Security shall ensure that—

(1)

aliens incarcerated in a Federal facility pursuant to this section are held in facilities which provide an appropriate level of security; and

(2)

if practicable, aliens detained solely for civil violations of Federal immigration law are separated within a facility or facilities.

(e)

Requirement for schedule

In carrying out this section, the Secretary of Homeland Security shall establish a regular circuit and schedule for the prompt transportation of apprehended aliens from the custody of those States, and political subdivisions of States, which routinely submit requests described in subsection (b), into Federal custody.

(f)

Authority for contracts

(1)

In general

The Secretary of Homeland Security may enter into contracts or cooperative agreements with appropriate State and local law enforcement and detention agencies to implement this section.

(2)

Determination by Secretary

Before entering into a contract or cooperative agreement with a State or political subdivision of a State under paragraph (1), the Secretary shall determine whether the State, or if appropriate, the political subdivision in which the agencies are located, has in place any formal or informal policy that violates section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1373). The Secretary shall not allocate any of the funds made available under this section to any State or political subdivision that has in place a policy that violates such section.

(g)

Construction

Nothing in this section shall be construed to require law enforcement personnel of a State or a political subdivision to assist in the enforcement of the immigration laws of the United States.

(h)

Authorization of appropriations

There are authorized to be appropriated such sums as may be necessary to carry out this section.

.

216.

Laundering of monetary instruments

Section 1956(c)(7)(D) of title 18, United States Code, is amended—

(1)

by inserting section 1590 (relating to trafficking with respect to peonage, slavery, involuntary servitude, or forced labor), after section 1363 (relating to destruction of property within the special maritime and territorial jurisdiction),; and

(2)

by inserting section 274(a) of the Immigration and Nationality Act (8 U.S.C.1324(a)) (relating to bringing in and harboring certain aliens), after section 590 of the Tariff Act of 1930 (19 U.S.C. 1590) (relating to aviation smuggling),.

217.

Increase of Federal detention space and the utilization of facilities identified for closures as a result of the Defense Base Closure Realignment Act of 1990

(a)

Construction or acquisition of detention facilities

(1)

In general

Subject to the availability of appropriations, the Secretary shall construct or acquire, in addition to existing facilities for the detention of aliens, at least 20 detention facilities in the United States that have the capacity to detain a combined total of not less than 20,000 individuals at any time for aliens detained pending removal or a decision on removal of such aliens from the United States.

(2)

Requirement to construct or acquire

Subject to the availability of appropriations, the Secretary shall construct or acquire additional detention facilities in the United States to accommodate the detention beds required by section 5204(a) of the Intelligence Reform and Terrorism Protection Act of 2004 (Public Law 108–458; 118 Stat. 3734).

(3)

Use of alternate detention facilities

Subject to the availability of appropriations, the Secretary shall fully utilize all possible options to cost effectively increase available detention capacities, and shall utilize detention facilities that are owned and operated by the Federal Government if the use of such facilities is cost effective.

(4)

Use of installations under base closure laws

In acquiring additional detention facilities under this subsection, the Secretary shall consider the transfer of appropriate portions of military installations approved for closure or realignment under 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) for use in accordance with this subsection.

(5)

Determination of location

The location of any detention facility constructed or acquired in accordance with this subsection shall be determined, with the concurrence of the Secretary, by the senior officer responsible for Detention and Removal Operations in the Department. The detention facilities shall be located so as to enable the officers and employees of the Department to increase to the maximum extent practicable the annual rate and level of removals of illegal aliens from the United States.

(b)

Annual report to Congress

Not later than 1 year after the date of the enactment of this Act, and annually thereafter, in consultation with the heads of other appropriate Federal agencies, the Secretary shall submit to Congress an assessment of the additional detention facilities and bed space needed to detain unlawful aliens apprehended at the United States ports of entry or along the international land borders of the United States.

(c)

Technical and conforming amendment

Section 241(g)(1) (8 U.S.C. 1231(g)(1)) is amended by striking may expend and inserting shall expend.

(d)

Authorization of appropriations

There are authorized to be appropriated such sums as may be necessary to carry out this section.

218.

Determination of immigration status of individuals charged with Federal offenses

(a)

Responsibility of United States Attorneys

Beginning not later than 2 years after the date of enactment of this Act, the office of the United States Attorney that is prosecuting a criminal case in a Federal court—

(1)

shall determine, not later than 30 days after filing the initial pleadings in the case, whether each defendant in the case is lawfully present in the United States (subject to subsequent legal proceedings to determine otherwise);

(2)
(A)

if the defendant is determined to be an alien lawfully present in the United States, shall notify the court in writing of the determination and the current status of the alien under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.); and

(B)

if the defendant is determined not to be lawfully present in the United States, shall notify the court in writing of the determination, the defendant’s alien status, and, to the extent possible, the country of origin or legal residence of the defendant;

(3)

ensure that the information described in paragraph (2) is included in the case file and the criminal records system of the office of the United States attorney; and

(4)

provide notice to the alien and the counsel for the alien of any such determination and any such submission to the court.

(b)

Guidelines

A determination made under subsection (a)(1) shall be made in accordance with guidelines of the Executive Office for Immigration Review of the Department of Justice.

(c)

Responsibilities of Federal courts

(1)

Modifications of records and case managements systems

Not later than 2 years after the date of enactment of this Act, all Federal courts that hear criminal cases, or appeals of criminal cases, shall modify their criminal records and case management systems, in accordance with guidelines which the Director of the Administrative Office of the United States Courts shall establish, so as to enable accurate reporting of information described in subsection (a)(2).

(2)

Data entries

Beginning not later than 2 years after the date of enactment of this Act, each Federal court described in paragraph (1) shall enter into its electronic records the information contained in each notification to the court under subsection (a)(2).

(d)

Construction

Nothing in this section may be construed to provide a basis for admitting evidence to a jury or releasing information to the public regarding an alien’s immigration status.

(e)

Annual report to Congress

The Director of the Administrative Office of the United States Courts shall include, in the annual report filed with Congress under section 604 of title 28, United States Code—

(1)

statistical information on criminal trials of aliens in the courts and criminal convictions of aliens in the lower courts and upheld on appeal, including the type of crime in each case and including information on the legal status of the aliens; and

(2)

recommendations on whether additional court resources are needed to accommodate the volume of criminal cases brought against aliens in the Federal courts.

(f)

Authorization of appropriations

(1)

In general

There are authorized to be appropriated for each of fiscal years 2008 through 2012, such sums as may be necessary to carry out this section.

(2)

Availability of funds

Funds appropriated pursuant to the authorization of appropriations in this subsection in any fiscal year shall remain available until expended.

219.

Expansion of the Justice Prisoner and Alien Transfer System

Not later than 60 days after the date of enactment of this Act, the Attorney General shall issue a directive to expand the Justice Prisoner and Alien Transfer System so that such System provides additional services with respect to aliens who are illegally present in the United States. Such expansion should include—

(1)

increasing the daily operations of such System with buses and air hubs in 3 geographic regions;

(2)

allocating a set number of seats for such aliens for each metropolitan area;

(3)

allowing metropolitan areas to trade or give some of the seats allocated to the area under such System for such aliens to other areas in their region based on the transportation needs of each area; and

(4)

requiring an annual report that analyzes the number of seats that each metropolitan area is allocated under such System for such aliens and modifies such allocation if necessary.

220.

Cancellation of visas

Section 222(g) (8 U.S.C. 1202(g)) is amended—

(1)

in paragraph (1)—

(A)

by striking Attorney General and inserting Secretary of Homeland Security; and

(B)

by inserting and any other nonimmigrant visa issued by the United States that is in the possession of the alien after such visa; and

(2)

in paragraph (2)(A), by striking (other than the visa described in paragraph (1)) issued in a consular office located in the country of the alien’s nationality and inserting (other than a visa described in paragraph (1)) issued in a consular office located in the country of the alien’s nationality or foreign residence.

B

Passport and visa security

221.

Reform of passport fraud offenses

(a)

Trafficking in passports

Section 1541 of title 18, United States Code, is amended to read as follows:

1541.

Trafficking in passports

(a)

Multiple passports

Any person who, during any period of 3 years or less, knowingly—

(1)

and without lawful authority produces, issues, or transfers 10 or more passports;

(2)

forges, counterfeits, alters, or falsely makes 10 or more passports;

(3)

secures, possesses, uses, receives, buys, sells, or distributes 10 or more passports, knowing the passports to be forged, counterfeited, altered, falsely made, stolen, procured by fraud, or produced or issued without lawful authority; or

(4)

completes, mails, prepares, presents, signs, or submits 10 or more applications for a United States passport, knowing the applications to contain any false statement or representation,

shall be fined under this title, imprisoned not more than 20 years, or both.
(b)

Passport materials

Any person who knowingly and without lawful authority produces, buys, sells, possesses, or uses any official material (or counterfeit of any official material) used to make a passport, including any distinctive paper, seal, hologram, image, text, symbol, stamp, engraving, or plate, shall be fined under this title, imprisoned not more than 20 years, or both.

.

(b)

False statement in an application for a passport

Section 1542 of title 18, United States Code, is amended to read as follows:

1542.

False statement in an application for a passport

(a)

In general

Whoever knowingly makes any false statement or representation in an application for a United States passport, or mails, prepares, presents, or signs an application for a United States passport knowing the application to contain any false statement or representation, shall be fined under this title, imprisoned not more than 15 years, or both.

(b)

Venue

(1)

In general

An offense under subsection (a) may be prosecuted in any district—

(A)

in which the false statement or representation was made or the application for a United States passport was prepared or signed; or

(B)

in which or to which the application was mailed or presented.

(2)

Acts occurring outside the United States

An offense under subsection (a) involving an application for a United States passport prepared and adjudicated outside the United States may be prosecuted in the district in which the resultant passport was or would have been produced.

(c)

Savings clause

Nothing in this section may be construed to limit the venue otherwise available under sections 3237 and 3238 of this title.

.

(c)

Forgery and unlawful production of a passport

Section 1543 of title 18, United States Code, is amended to read as follows:

1543.

Forgery and unlawful production of a passport

(a)

Forgery

Any person who knowingly—

(1)

forges, counterfeits, alters, or falsely makes any passport; or

(2)

transfers any passport knowing it to be forged, counterfeited, altered, falsely made, stolen, or to have been produced or issued without lawful authority,

shall be fined under this title, imprisoned not more than 15 years, or both.
(b)

Unlawful production

Any person who knowingly and without lawful authority—

(1)

produces, issues, authorizes, or verifies a passport in violation of the laws, regulations, or rules governing the issuance of the passport;

(2)

produces, issues, authorizes, or verifies a United States passport for or to any person knowing or in reckless disregard of the fact that such person is not entitled to receive a passport; or

(3)

transfers or furnishes a passport to any person for use by any person other than the person for whom the passport was issued or designed,

shall be fined under this title, imprisoned not more than 15 years, or both.

.

(d)

Misuse of a passport

Section 1544 of title 18, United States Code, is amended to read as follows:

1544.

Misuse of a passport

Any person who knowingly—

(1)

uses any passport issued or designed for the use of another;

(2)

uses any passport in violation of the conditions or restrictions therein contained, or in violation of the laws, regulations, or rules governing the issuance and use of the passport;

(3)

secures, possesses, uses, receives, buys, sells, or distributes any passport knowing it to be forged, counterfeited, altered, falsely made, procured by fraud, or produced or issued without lawful authority; or

(4)

violates the terms and conditions of any safe conduct duly obtained and issued under the authority of the United States,

shall be fined under this title, imprisoned not more than 15 years, or both.

.

(e)

Schemes to defraud aliens

Section 1545 of title 18, United States Code, is amended to read as follows:

1545.

Schemes to defraud aliens

(a)

In general

Any person who knowingly executes a scheme or artifice, in connection with any matter that is authorized by or arises under Federal immigration laws or any matter the offender claims or represents is authorized by or arises under Federal immigration laws, to—

(1)

defraud any person; or

(2)

obtain or receive money or anything else of value from any person by means of false or fraudulent pretenses, representations, or promises,

shall be fined under this title, imprisoned not more than 15 years, or both.
(b)

Misrepresentation

Any person who knowingly and falsely represents that such person is an attorney or an accredited representative (as that term is defined in section 1292.1 of title 8, Code of Federal Regulations (or any successor regulation to such section)) in any matter arising under Federal immigration laws shall be fined under this title, imprisoned not more than 15 years, or both.

.

(f)

Immigration and visa fraud

Section 1546 of title 18, United States Code, is amended—

(1)

by amending the section heading to read as follows:

1546.

Immigration and visa fraud

;

and
(2)

by striking subsections (b) and (c) and inserting the following:

(b)

In general

Any person who knowingly—

(1)

uses any immigration document issued or designed for the use of another;

(2)

forges, counterfeits, alters, or falsely makes any immigration document;

(3)

completes, mails, prepares, presents, signs, or submits any immigration document knowing it to contain any materially false statement or representation;

(4)

secures, possesses, uses, transfers, receives, buys, sells, or distributes any immigration document knowing it to be forged, counterfeited, altered, falsely made, stolen, procured by fraud, or produced or issued without lawful authority;

(5)

adopts or uses a false or fictitioius name to evade or to attempt to evade the immigration laws; or

(6)

transfers or furnishes, without lawful authority, an immigration document to another person for use by a person other than the person for whom the pasport was issued or disgned,

shall be fined under this title, imprisoned not more 15 years, or both.
(c)

Trafficking

Any person who, during any period of 3 years or less, knowingly—

(1)

and without lawful authority produces, issues, or transfers 10 or more immigration documents;

(2)

forges, counterfeits, alters, or falsely makes 10 or more immigration documents;

(3)

secures, possesses, uses, buys, sells, or distributes 10 or more immigration documents, knowing the immigration documents to be forged, counterfeited, altered, stolen, falsely made, procured by fraud, or produced or issued without lawful authority; or

(4)

completes, mails, prepares, presents, signs, or submits 10 or more immigration documents knowing the documents to contain any materially false statement or representation,

shall be fined under this title, imprisoned not more than 20 years, or both.
(d)

Immigration document materials

Any person who knowingly and without lawful authority produces, buys, sells, possesses, or uses any official material (or counterfeit of any official material) used to make immigration documents, including any distinctive paper, seal, hologram, image, text, symbol, stamp, engraving, or plate, shall be fined under this title, imprisoned not more than 20 years, or both.

(e)

Employment documents

Any person who uses—

(1)

an identification document, knowing (or having reason to know) that the document was not issued lawfully for the use of the possessor;

(2)

an identification document knowing (or having reason to know) that the document is false; or

(3)

a false attestation,

for the purpose of satisfying a requirement of section 274A(b) of the Immigration and Nationality Act (8 U.S.C. 1324a(b)), shall be fined under this title, imprisoned not more than 5 years, or both.

.

(g)

Alternative imprisonment maximum for certain offenses

Section 1547 of title 18, United States Code, is amended—

(1)

in the matter preceding paragraph (1), by striking (other than an offense under section 1545);

(2)

in paragraph (1), by striking 15 and inserting 20; and

(3)

in paragraph (2), by striking 20 and inserting 25.

(h)

Attempts, conspiracies, jurisdiction, and definitions

Chapter 75 of title 18, United States Code, is amended by adding after section 1547 the following:

1548.

Attempts and conspiracies

Any person who attempts or conspires to violate any section of this chapter shall be punished in the same manner as a person who completed a violation of that section.

1549.

Additional jurisdiction

(a)

In general

Any person who commits an offense under this chapter within the special maritime and territorial jurisdiction of the United States shall be punished as provided under this chapter.

(b)

Extraterritorial jurisdiction

Any person who commits an offense under this chapter outside the United States shall be punished as provided under this chapter if—

(1)

the offense involves a United States passport or immigration document (or any document purporting to be such a document) or any matter, right, or benefit arising under or authorized by Federal immigration laws;

(2)

the offense is in or affects foreign commerce;

(3)

the offense affects, jeopardizes, or poses a significant risk to the lawful administration of Federal immigration laws, or the national security of the United States;

(4)

the offense is committed to facilitate an act of international terrorism (as defined in section 2331) or a drug trafficking crime (as defined in section 929(a)(2)) that affects or would affect the national security of the United States;

(5)

the offender is a national of the United States or an alien lawfully admitted for permanent residence (as those terms are defined in section 101(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a))); or

(6)

the offender is a stateless person whose habitual residence is in the United States.

1550.

Authorized law enforcement activities

Nothing in this chapter shall prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State, or a political subdivision of a State, or an intelligence agency of the United States, or any activity authorized under title V of the Organized Crime Control Act of 1970 (Public Law 91–452; 84 Stat. 933).

1551.

Definitions

As used in this chapter:

(1)

The term application for a United States passport includes any document, photograph, or other piece of evidence submitted in support of an application for a United States passport.

(2)

The term immigration document

(A)

means any application, petition, affidavit, declaration, attestation, form, visa, identification card, alien registration document, employment authorization document, border crossing card, certificate, permit, order, license, stamp, authorization, grant of authority, or other official document, arising under or authorized by the immigration laws of the United States; and

(B)

includes any document, photograph, or other piece of material evidence attached or submitted in support of an immigration document described in subparagraph (A).

(3)

The term immigration laws includes—

(A)

the laws described in section 101(a)(17) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(17));

(B)

the laws relating to the issuance and use of passports; and

(C)

the regulations prescribed under the authority of any law described in subparagraph (A) or (B).

(4)

A person does not exercise lawful authority if the person abuses or improperly exercises lawful authority the person otherwise holds.

(5)

The term passport means—

(A)

a travel document attesting to the identity and nationality of the bearer that is issued under the authority of the Secretary of State, a foreign government, or an international organization; or

(B)

any instrument purporting to be a document described in subparagraph (A).

(6)

The term produce means to make, prepare, assemble, issue, print, authenticate, or alter.

(7)

The term to present means to offer or submit for official processing, examination, or adjudication. Any such presentation continues until the official processing, examination, or adjudication is complete.

(8)

The use of a passport or an immigration document referred to in section 1541(a), 1543(b), 1544, 1546(a), and 1546(b) of this chapter includes—

(A)

any officially authorized use;

(B)

use to travel;

(C)

use to demonstrate identity, residence, nationality, citizenship, or immigration status;

(D)

use to seek or maintain employment; or

(E)

use in any matter within the jurisdiction of the Federal government or of a State government.

.

(i)

Clerical amendment

The table of sections for chapter 75 of title 18, United States Code, is amended to read as follows:

Sec.

1541. Trafficking in passports.

1542. False statement in an application for a passport.

1543. Forgery and unlawful production of a passport.

1544. Misuse of a passport.

1545. Schemes to defraud aliens.

1546. Immigration and visa fraud.

1547. Alternative imprisonment maximum for certain offenses.

1548. Attempts and conspiracies.

1549. Additional jurisdiction.

1550. Authorized law enforcement activities.

1551. Definitions.

.

222.

Other immigration reforms

(a)

Directive to the United States Sentencing Commission

(1)

In general

Pursuant to the authority under section 994 of title 28, United States Code, the United States Sentencing Commission shall promulgate or amend the sentencing guidelines, policy statements, and official commentaries related to passport fraud offenses, including the offenses described in chapter 75 of title 18, United States Code, as amended by section 221, to reflect the serious nature of such offenses.

(2)

Report

Not later than 1 year after the date of the enactment of this Act, the United States Sentencing Commission shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report on the implementation of this subsection.

(b)

Release and detention prior to disposition

(1)

Detention

Section 3142(e) of title 18, United States Code, is amended to read as follows:

(e)

Detention

(1)

If, after a hearing pursuant to the provisions of subsection (f) of this section, the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community, such judicial officer shall order the detention of the person before trial.

(2)

In a case described in subsection (f)(1) of this section, a rebuttable presumption arises that no condition or combination of conditions will reasonably assure the safety of any other person and the community if such judicial officer finds that—

(A)

the person has been convicted of a Federal offense that is described in subsection (f)(1) of this section, or of a State or local offense that would have been an offense described in subsection (f)(1) of this section if a circumstance giving rise to Federal jurisdiction had existed;

(B)

the offense described in subparagraph (A) of this paragraph was committed while the person was on release pending trial for a Federal, State, or local offense; and

(C)

a period of not more than five years has elapsed since the date of conviction, or the release of the person from imprisonment, for the offense described in subparagraph (A) of this paragraph, whichever is later.

(3)

Subject to rebuttal by the person, it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46, an offense under section 924(c), 956(a), or 2332b of this title, or an offense listed in section 2332b(g)(5)(B) of this title for which a maximum term of imprisonment of 10 years or more is prescribed, or an offense involving a minor victim under section 1201, 1591, 2241, 2242, 2244(a)(1), 2245, 2251, 2251A, 2252(a)(1), 2252(a)(2), 2252(a)(3), 2252A(a)(1), 2252A(a)(2), 2252A(a)(3), 2252A(a)(4), 2260, 2421, 2422, 2423, or 2425 of this title.

.

(c)

Protection for legitimate refugees and asylum seekers

(1)

Protection for legitimate refugees and asylum seekers

The Attorney General, in consultation with the Secretary of Homeland Security, shall develop binding prosecution guidelines for Federal prosecutors to ensure that any prosecution of an alien seeking entry into the United States by fraud is consistent with the United States treaty obligations under Article 31(1) of the Convention Relating to the Status of Refugees, done at Geneva July 28, 1951 (as made applicable by the Protocol Relating to the Status of Refugees, done at New York January 31, 1967 (19 UST 6223)).

(2)

No private right of action

The guidelines developed pursuant to paragraph (1), and any internal office procedures related to such guidelines, are intended solely for the guidance of attorneys of the United States. This subsection, such guidelines, and the process for developing such guidelines are not intended to, do not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil, or criminal matter.

(3)

Waiver

The Secretary may grant a waiver from prosecution under chapter 75 of title 18, United States Code, as amended by section 211 of this Act, to a person—

(A)

seeking protection, classification, or status under section 208 or 241(b)(3) of the Immigration and Nationality Act, or relief under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1994, pursuant to title 8, Code of Federal Regulations;

(B)

referred for a credible fear interview, a reasonable fear interview, or an asylum-only hearing under section 235 of the Immigration and Nationality Act or title 8, Code of Federal Regulations; or

(C)

has filed an application for classification or status under paragraph (15)(T), (15)(U), (27)(J), or (51) of section 101(a) of the Immigration and Nationality Act, section 216(c)(4)(C), 240A(b)(2), or section 244(a)(3) of such Act.

(d)

Diplomatic security service

Section 37(a)(1) of the State Department Basic Authorities Act of 1956 (22 U.S.C. 2709(a)(1)) is amended to read as follows:

(1)

conduct investigations concerning—

(A)

illegal passport or visa issuance or use;

(B)

identity theft or document fraud affecting or relating to the programs, functions, and authorities of the Department of State;

(C)

violations of chapter 77 of title 18, United States Code; and

(D)

Federal offenses committed within the special maritime and territorial jurisdiction defined in paragraph (9) of section 7 of title 18, United States Code;

.

C

Detention and removal of aliens who illegally enter or remain in the United States

231.

Detention and removal of aliens ordered removed

(a)

In general

Section 241(a) (8 U.S.C. 1231(a)) is amended—

(1)

in paragraph (1)(A), by striking Attorney General and inserting Secretary of Homeland Security;

(2)

in paragraphs (3), (4), (5), (6), and (7), by striking Attorney General each place it appears and inserting Secretary;

(3)

in paragraph (1)—

(A)

by amending subparagraph (C) to read as follows:

(C)

Extension of removal period

(i)

In general

The Secretary shall extend the removal period for more than a period of 90 days and the alien may remain in detention during such extended period if, during the removal period—

(I)

the alien—

(aa)

fails or refuses to make timely application in good faith for travel or other documents necessary for the alien to depart the United States; or

(bb)

conspires or acts to prevent the removal of the alien subject to an order of removal; and

(II)

the Secretary makes a certification described in paragraph (8)(B) for such alien.

(ii)

Stay of removal

An alien seeking a stay of removal from an immigration judge, a Federal judge, or the Board of Immigration Appeals shall not be deemed under any provision of law to be conspiring or acting to prevent the removal of the alien.

(iii)

Review

The procedures described in paragraph (8)(E) shall apply to actions taken under this subparagraph.

; and

(B)

by adding at the end the following:

(D)

Tolling of period

If, at the time described in clause (i), (ii), or (iii) of subparagraph (B), the alien is not in the custody of the Secretary under the authority of this Act, the removal period shall not begin until the alien is taken into such custody. If the Secretary lawfully transfers custody of the alien during the removal period to another Federal agency or to a State or local government agency in connection with the official duties of such agency, the removal period shall be tolled until the date on which the alien is returned to the custody of the Secretary.

;

(4)

by amending paragraph (2) to read as follows:

(2)

Detention

During the removal period, the Secretary shall detain the alien. Under no circumstances during the removal period shall the Secretary release an alien who has been found inadmissible under section 212(a)(2) or 212(a)(3)(B) or deportable under section 237(a)(2) or 1227(a)(4)(B). If a court, the Board of Immigration Appeals, or an immigration judge orders a stay of removal of an alien who is subject to an administratively final order of removal, the Secretary, in the exercise of discretion, may detain or supervise the alien during the pendency of such stay of removal, subject to the limitations set forth in subparagraphs (3), (6), and (8).

;

(5)

in paragraph (3)—

(A)

in the matter preceding subparagraph (A), by striking If and inserting Subject to the requirements of paragraphs (6) and (8), if; and

(B)

by striking subparagraph (D) and inserting the following:

(D)

to obey reasonable restrictions on the alien’s conduct or activities, or to perform affirmative acts prescribed by the Secretary—

(i)

to prevent the alien from absconding; or

(ii)

to protect the community;

(E)

if appropriate—

(i)

to utilize an electronic monitoring device;

(ii)

to complete parole and probation requirements for aliens with outstanding obligations under Federal or State law; and

(F)

to comply with any other conditions of such supervision that the Secretary determines is appropriate.

;

(6)

in paragraph (6), by inserting , subject to the provisions of paragraph (8) after beyond the removal period;

(7)

by redesignating paragraph (7) as paragraph (11);

(8)

by inserting after paragraph (6) the following:

(7)

Parole

(A)

In general

If an alien detained pursuant to paragraph (6) is an applicant for admission and is released from detention, such release shall be considered to be made as an exercise of the Secretary’s parole authority under 212(d)(5). Notwithstanding section 212(d)(5), the Secretary may provide that the alien shall not be returned to custody unless—

(i)

the alien violates the conditions of the alien’s parole under this section;

(ii)

the alien's removal becomes reasonably foreseeable; or

(iii)

the alien violates the conditions set out in paragraph (3).

(B)

Not an admission

Under no circumstance shall an alien paroled under this section be considered admitted to the United States.

(8)

Additional rules for detention or release of aliens beyond removal period

(A)

Detention after removal period

The Secretary is authorized to detain an alien who has effected an entry into the United States—

(i)

for not more than 90 days beyond the removal period if the Secretary is seeking to make a certification described in subparagraph (B) for the alien; or

(ii)

for more than 90 days beyond the removal period if the Secretary has made a certification described in subparagraph (B) for the alien, subject to the conditions set out in this paragraph.

(B)

Certification

A certification described in this subparagraph is a written certification made by the Secretary in which the Secretary determines—

(i)

that the alien is significantly likely to be removed in the reasonably foreseeable future;

(ii)

that the alien has failed to make a timely application, in good faith, for travel documents or has otherwise conspired or acted to prevent the removal of the alien;

(iii)

that the alien would have been removed if the alien had not—

(I)

failed or refused to make all reasonable efforts to comply with the removal order;

(II)

failed or refused to fully cooperate with the efforts of the Secretary to establish the alien’s identity and carry out the removal order, including failing to submit a timely application, in good faith, for travel or other documents necessary for the alien’s departure from the United States; or

(III)

conspired or acted to prevent such removal;

(iv)

in consultation with the Secretary of Health and Human Services, that the alien has a highly contagious disease that poses a threat to public safety, in which case the alien may be quarantined in a civil medical facility;

(v)

on the basis of information available to the Secretary (including classified and national security information), regardless of the grounds upon which the alien was ordered removed and pursuant to a written certification under section 236A, that there is reason to believe that the release of the alien would threaten the national security of the United States; or

(vi)

that the release of the alien would threaten the safety of the community, notwithstanding conditions of release designed to ensure the safety of the community or any person and the alien—

(I)

has been convicted of 1 or more aggravated felonies (as defined in section 101(a)(43)(A)), or of 1 or more attempts or conspiracies to commit any such aggravated felonies for which the alien served an aggregate term of imprisonment of at least 5 years and the alien is likely to engage in acts of violence in the future; or

(II)

because of a mental condition or personality disorder (certified under section 232(b)) and behavior associated with that condition or disorder, is likely to engage in acts of violence in the future, in which case the alien may be referred for review and evaluation for civil commitment pursuant to the civil commitment statute of the State in which the alien resides.

(C)

Delegation

Notwithstanding any other provision of law, the Secretary may not delegate the authority to make a certification described in subparagraph (B) to any official lower than the Assistant Secretary for Immigration and Customs Enforcement.

(D)

Administrative review

(i)

In general

The Secretary shall establish an administrative review process to permit an alien to appeal a decision by the Secretary to detain the alien after the removal period under subparagraph (A) or to extend the removal period for the alien under paragraph (1)(C).

(ii)

Review

An immigration judge shall review a determination by the Secretary to detain an alien under subparagraph (A) or paragraph (1)(C). An immigration judge shall uphold such determination of the Secretary if the Secretary establishes at a hearing, by clear and convincing evidence, that such detention is authorized under subparagraph (A) or paragraph (1)(C). In making this determination, the court shall disclose, if otherwise discoverable, to the alien, the counsel of the alien, or both, under procedures and standards set forth in the Classified Information Procedures Act (18 U.S.C. App.), any evidence that the Secretary relied on in making a determination under this section unless the court finds that such disclosure would not assist in determining any legal or factual issue pertinent to the case. The decision of the immigration judge shall not be subject to appeal, but shall be reviewable in a habeas corpus proceeding under section 2241 of title 28, United States Code.

(E)

Renewal of extended detention

(i)

Renewal of detention

The Secretary may renew a certification under subparagraph (B) every 180 days after providing the alien with an opportunity to submit documents or other evidence in support of release. Unless the Secretary determines that continued detention under subparagraph (A) or paragraph (1)(C) is warranted, the Secretary shall release the alien subject to the conditions of supervision described in paragraph (3).

(ii)

Review

Any renewal of a certification under clause (i) shall be subject to review as described in subparagraph (E) and any such review shall be completed before the date that is 180 days after the date the alien's detention was continued under subparagraph (A) or paragraph (1)(C) or the date of the previous renewal of such detention under clause (i).

(F)

Applicability

This paragraph and paragraphs (6) and (7) shall apply to any alien returned to custody under paragraph (9) as if the removal period terminated on the day of the redetention.

(9)

Redetention

The Secretary may not detain any alien subject to a final removal order who has previously been released from custody unless—

(A)

the alien fails to comply with the conditions of departure applicable to the alien;

(B)

the alien fails to continue to satisfy the conditions of supervision under paragraph (3); or

(C)

upon reconsideration, the Secretary makes a certification for the alien described in paragraph (8)(B).

(10)

Judicial review

Without regard to the place of confinement, judicial review of any action or decision made pursuant to paragraph (6), (7), or (8) shall be available exclusively in a habeas corpus proceeding brought in a United States district court in the judicial district in which the alien is detained or in which the alien's removal proceeding was initiated.

.

(b)

Effective date

The amendments made by this section—

(1)

shall take effect on the date of the enactment of this Act; and

(2)

shall apply to—

(A)

any alien subject to a final administrative removal, deportation, or exclusion order that was issued before, on, or after the date of the enactment of this Act; and

(B)

any act or condition occurring or existing before, on, or after the date of the enactment of this Act.

232.

Increased criminal penalties for immigration violations

(a)

Pending proceedings

Section 204(b) (8 U.S.C. 1154(b)) is amended by adding at the end A petition may not be approved under this section if the petitioner has been found removable from the United States..

(b)

Conditional permanent resident status

(1)

In general

Section 216(e) (8 U.S.C. 1186a(e)) is amended by inserting if the alien applied for the removal of condition not less than 90 days before applying for naturalization before the period at the end.

(2)

Certain alien entrepreneurs

Section 216A(e) (8 U.S.C. 1186b(e)) is amended by inserting if the alien applied for the removal of condition not less than 90 days before applying for naturalization before the period at the end.

(c)

Concurrent naturalization and removal proceedings

Section 318 (8 U.S.C. 1429) is amended to read as follows:

318.

Prerequisite to naturalization; Burden of Proof

(a)

In general

Except as otherwise provided in this title, no person shall be naturalized unless the person has been lawfully admitted to the United States for permanent residence in accordance with all applicable provisions of this Act. The burden of proof shall be upon such person to show that the person entered the United States lawfully, and the time, place, and manner of such entry into the United States, but in presenting such proof the person shall be entitled to the production of the person's's immigrant visa, if any, or of other entry document, if any, and of any other documents and records, not considered by the Secretary of Homeland Security to be confidential, pertaining to such entry, in the custody of the Department of Homeland Security.

(b)

Other proceedings

Notwithstanding the provisions of section 405(b), and except as provided in sections 328 and 329, no person shall be naturalized against whom there is outstanding a final finding of deportability pursuant to a warrant of arrest issued under the provisions of this or any other Act and no application for naturalization shall be considered by the Secretary of Homeland Security or any court if there is pending against the applicant any removal proceeding or other proceeding to determine the applicant’s inadmissibility or deportability, or to determine whether the applicant's lawful permanent resident status should be rescinded, if the removal proceeding or other proceeding was commenced before a final agency decision on naturalization made pursuant to a hearing requested under section 336(a). The findings of the Secretary in terminating removal proceedings or canceling the removal of an alien under this Act shall not be binding upon the Secretary in determining whether such person has established eligibility for naturalization under this title.

.

(d)

District court jurisdiction

Section 336(b) (8 U.S.C. 1447(b)) is amended to read as follows:

(b)

Request for hearing before district court

If a final administrative decision is not rendered under section 335 before the end of the 180-day period beginning on the date on which the examination is conducted under such section, the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter. Such court has jurisdiction over the matter and may—

(1)

determine the matter; or

(2)

remand the matter, with appropriate instructions, to the Secretary of Homeland Security, to determine the matter.

.

(e)

Effective date

The amendments made by this section—

(1)

shall apply to any act that occurred on or after the date of enactment of this Act; and

(2)

shall apply to any application for naturalization or any case or matter under the immigration laws filed on or after such date of enactment.

233.

Aggravated felony

(a)

Definition of aggravated felony

Section 101(a)(43) (8 U.S.C. 1101(a)(43)) is amended—

(1)

in the matter preceding subparagraph (A), by striking The term aggravated felony means— and inserting Notwithstanding any other provision of law, the term aggravated felony applies to an offense described in this paragraph, whether in violation of Federal or State law, and to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years, and regardless of whether the conviction was entered before, on, or after September 30, 1996 and means—;

(2)

in subparagraph (N), by striking paragraph (1)(A) or (2) of and inserting paragraph (1)(A), (2), or (4) of; and

(3)

by striking the undesignated matter following subparagraph (U).

(b)

Effective date and application

(1)

In general

The amendments made by subsection (a) shall—

(A)

take effect on the date of enactment of this Act; and

(B)

apply to any act that occurred on or after the date of enactment of this Act.

(2)

Application of IIRAIRA amendments

The amendments to section 101 (a)(43) of the Immigration and Nationality Act made by section 321 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208; 110 Stat. 3009–627) shall continue to apply, whether the conviction was entered before, on, or after September 30, 1996.

234.

Increased criminal penalties related to gang violence, removal, and alien smuggling

(a)

Criminal street gangs

(1)

Inadmissibility

Section 212(a)(2) (8 U.S.C. 1182(a)(2)) is amended—

(A)

by redesignating subparagraph (F) as subparagraph (J); and

(B)

by inserting after subparagraph (E) the following:

(F)

Members of criminal street gangs

Unless the Secretary of Homeland Security or the Attorney General waives the application of this subparagraph, any alien who has been convicted of a crime under section 521 of title 18, United States Code, is inadmissible.

.

(2)

Deportability

Section 237(a)(2) (8 U.S.C. 1227(a)(2)) is amended by adding at the end the following:

(F)

Members of criminal street gangs

Unless the Secretary of Homeland Security or the Attorney General waives the application of this subparagraph, any alien who has been convicted of a crime under section 521 of title 18, United States Code, is deportable.

.

(3)

Temporary protected status

Section 244 (8 U.S.C. 1254a) is amended—

(A)

by striking Attorney General each place it appears and inserting Secretary of Homeland Security;

(B)

in subsection (c)(2)(B)—

(i)

in clause (i), by striking , or at the end;

(ii)

in clause (ii), by striking the period at the end and inserting ; or; and

(iii)

by adding at the end the following:

(iii)

the alien has been convicted of a crime under section 521 of title 18, United States Code.

; and

(C)

in subsection (d)—

(i)

by striking paragraph (3); and

(ii)

in paragraph (4), by adding at the end the following: The Secretary of Homeland Security shall detain an alien provided temporary protected status under this section if the alien is subject to detention under section 236(c)(1)..

(b)

Penalties related to removal

Section 243 (8 U.S.C. 1253) is amended—

(1)

in subsection (a)(1)—

(A)

in the matter preceding subparagraph (A), by inserting 212(a) or after section; and

(B)

in the matter following subparagraph (D)—

(i)

by striking or imprisoned not more than four years and inserting and imprisoned for not more than 5 years; and

(ii)

by striking , or both; and

(2)

in subsection (b), by striking not more than $1000 or imprisoned for not more than one year, or both and inserting under title 18, United States Code, and imprisoned for not more than 5 years (or for not more than 10 years if the alien is removable under paragraph (1)(E), (2), or (4) of section 237(a))..

(c)

Alien smuggling and related offenses

(1)

In general

Section 274 (8 U.S.C. 1324) is amended—

(A)

by striking the section heading and all that follows through subsection (a)(1)(B)(iii);

(B)

by striking subsection (a)(1)(C) and all that follows through the end;

(C)

by redesignating subsection (a)(1)(B)(iv) as subparagraph (G) and indenting such subparagraph (G) four ems from the left margin;

(D)

by amending subparagraph (G), as redesignated by subparagraph (C), by striking in the case of a violation of subparagraph (A) (i), (ii), (iii), (iv), or (v) resulting and inserting if the offense resulted;

(E)

by inserting before subparagraph (G), as redesignated by subparagraph (C), the following:

274.

Alien smuggling and related offenses

(a)

Criminal offenses and penalties

(1)

Prohibited activities

Except as provided in paragraph (3), a person shall be punished as provided under paragraph (2), if the person—

(A)

encourages, directs, or induces a person to come to or enter the United States, or to cross the border to the United States, knowing or in reckless disregard of the fact that such person is an alien who lacks lawful authority to come to, enter, or cross the border to the United States;

(B)

encourages, directs, or induces a person to come to or enter the United States, or to cross the border to the United States, at a place other than a designated port of entry or place other than as designated by the Secretary of Homeland Security, knowing or in reckless disregard of the fact that such person is an alien and regardless of whether such alien has official permission or lawful authority to be in the United States;

(C)

transports, moves, harbors, conceals, or shields from detection a person outside of the United States knowing or in reckless disregard of the fact that such person is an alien in unlawful transit from 1 country to another or on the high seas, under circumstances in which the alien is seeking to enter the United States without official permission or legal authority;

(D)

encourages or induces a person to reside in the United States, knowing or in reckless disregard of the fact that such person is an alien who lacks lawful authority to reside in the United States;

(E)

transports or moves a person in the United States, knowing or in reckless disregard of the fact that such person is an alien who lacks lawful authority to enter or be in the United States, if the transportation or movement will further the alien's illegal entry into or illegal presence in the United States;

(F)

harbors, conceals, or shields from detection a person in the United States, knowing or in reckless disregard of the fact that such person is an alien who lacks lawful authority to be in the United States; or

(G)

conspires or attempts to commit any of the acts described in subparagraphs (A) through (F).

(2)

Criminal penalties

A person who violates any provision under paragraph (1)—

(A)

except as provided in subparagraphs (C) through (G), if the offense was not committed for commercial advantage, profit, or private financial gain, shall be fined under title 18, United States Code, imprisoned for not more than 5 years, or both;

(B)

except as provided in subparagraphs (C) through (G), if the offense was committed for commercial advantage, profit, or private financial gain—

(i)

if the violation is the offender’s first violation under this subparagraph, shall be fined under such title, imprisoned for not more than 15 years, or both; or

(ii)

if the violation is the offender’s second or subsequent violation of this subparagraph, shall be fined under such title, imprisoned for not more than 20 years, or both;

(C)

if the offense furthered or aided the commission of any other offense against the United States or any State that is punishable by imprisonment for more than 1 year, shall be fined under such title, imprisoned for not more than 20 years, or both;

(D)

shall be fined under such title, imprisoned not more than 20 years, or both, if the offense created a substantial and foreseeable risk of death, a substantial and foreseeable risk of serious bodily injury (as defined in section 2119(2) of title 18, United States Code), or inhumane conditions to another person, including—

(i)

transporting the person in an engine compartment, storage compartment, or other confined space;

(ii)

transporting the person at an excessive speed or in excess of the rated capacity of the means of transportation; or

(iii)

transporting the person in, harboring the person in, or otherwise subjecting the person to crowded or dangerous conditions;

(E)

if the offense caused serious bodily injury (as defined in section 2119(2) of title 18, United States Code) to any person, shall be fined under such title, imprisoned for not more than 30 years, or both;

(F)

shall be fined under such title and imprisoned for not more than 30 years if the offense involved an alien who the offender knew was—

(i)

engaged in terrorist activity (as defined in section 212(a)(3)(B)); or

(ii)

intending to engage in terrorist activity; and

(F)

by inserting after subparagraph (G), as redesignated by subparagraph (C), the following:

(4)

Limitation

It is not a violation of subparagraph (D), (E), or (F) of paragraph (1)—

(A)

for a religious denomination having a bona fide nonprofit, religious organization in the United States, or the agents or officers of such denomination or organization, to encourage, invite, call, allow, or enable an alien who is present in the United States to perform the vocation of a minister or missionary for the denomination or organization in the United States as a volunteer who is not compensated as an employee, notwithstanding the provision of room, board, travel, medical assistance, and other basic living expenses, provided the minister or missionary has been a member of the denomination for at least 1 year; or

(B)

for an individual or organization acting without compensation or expectation of compensation and not previously convicted of a violation of this section, to—

(i)

provide, or attempt to provide, an alien who is present in the United States with humanitarian assistance, including medical care, housing, counseling, victim services, and food; or

(ii)

transport the alien to a location where such assistance can be rendered.

(5)

Extraterritorial jurisdiction

There is extraterritorial Federal jurisdiction over the offenses described in this subsection.

; and

(G)

by striking subsections (b) through (e) and inserting the following:

(b)

Employment of unauthorized aliens

(1)

Criminal offense and penalties

Any person who, during any 12-month period, knowingly employs 10 or more individuals with actual knowledge or in reckless disregard of the fact that the individuals are aliens described in paragraph (2), shall be fined under title 18, United States Code, imprisoned for not more than 10 years, or both.

(2)

Definition

An alien described in this paragraph is an alien who—

(A)

is an unauthorized alien (as defined in section 274A);

(B)

is present in the United States without lawful authority; and

(C)

has been brought into the United States in violation of this subsection.

(c)

Seizure and forfeiture

(1)

In general

Any conveyance used to commit or facilitate the commission of a violation of this section, the gross proceeds of such violation, and any property traceable to such property or proceeds, shall be subject to forfeiture.

(2)

Applicable procedures

Seizures and forfeitures under this subsection shall be governed by the provisions of chapter 46 of title 18, United States Code, relating to civil forfeitures, except that such duties as are imposed upon the Secretary of the Treasury under the customs laws described in section 981(d) shall be performed by such officers, agents, and other persons as may be designated for that purpose by the Secretary of Homeland Security.

(3)

Prima facie evidence in determinations of violations

In determining whether a violation of subsection (a) has occurred, prima facie evidence that an alien involved in the alleged violation lacks lawful authority to come to, enter, or reside in the United States, or that such alien had come to, entered, or resided in the United States in violation of law shall include—

(A)

any order, finding, or determination concerning the alien’s status or lack of status made by a Federal judge or administrative adjudicator (including an immigration judge or immigration officer) during any judicial or administrative proceeding authorized under Federal immigration law;

(B)

official records of the Department of Homeland Security, the Department of Justice, or the Department of State concerning the alien’s status or lack of status; and

(C)

testimony by an immigration officer having personal knowledge of the facts concerning the alien’s status or lack of status.

(d)

Authority to arrest

No officer or person shall have authority to make any arrests for a violation of any provision of this section except—

(1)

officers and employees designated by the Secretary of Homeland Security, either individually or as a member of a class; and

(2)

other officers responsible for the enforcement of Federal criminal laws.

(e)

Admissibility of videotaped witness testimony

Notwithstanding any provision of the Federal Rules of Evidence, the videotaped or otherwise audiovisually preserved deposition of a witness to a violation of subsection (a) who has been deported or otherwise expelled from the United States, or is otherwise unavailable to testify, may be admitted into evidence in an action brought for that violation if—

(1)

the witness was available for cross examination at the deposition by the party, if any, opposing admission of the testimony; and

(2)

the deposition otherwise complies with the Federal Rules of Evidence.

(f)

Outreach program

(1)

In general

The Secretary of Homeland Security, in consultation with the Attorney General and the Secretary of State, as appropriate, shall—

(A)

develop and implement an outreach program to educate people in and out of the United States about the penalties for bringing in and harboring aliens in violation of this section; and

(B)

establish the American Local and Interior Enforcement Needs (ALIEN) Task Force to identify and respond to the use of Federal, State, and local transportation infrastructure to further the trafficking of unlawful aliens within the United States.

(2)

Field offices

The Secretary of Homeland Security, after consulting with State and local government officials, shall establish such field offices as may be necessary to carry out this subsection.

(3)

Authorization of appropriations

There are authorized to be appropriated such sums are necessary for the fiscal years 2008 through 2012 to carry out this subsection.

.

(2)

Clerical amendment

The table of contents is amended by striking the item relating to section 274 and inserting the following:

Sec. 274. Alien smuggling and related offenses.

.

(d)

Prohibiting carrying or using a firearm during and in relation to an alien smuggling crime

Section 924(c) of title 18, United States Code, is amended—

(1)

in paragraph (1)—

(A)

in subparagraph (A), by inserting , alien smuggling crime, after any crime of violence;

(B)

in subparagraph (A), by inserting , alien smuggling crime, after such crime of violence;

(C)

in subparagraph (D)(ii), by inserting , alien smuggling crime, after crime of violence; and

(2)

by adding at the end the following:

(6)

For purposes of this subsection, the term alien smuggling crime means any felony punishable under section 274(a), 277, or 278 of the Immigration and Nationality Act (8 U.S.C. 1324(a), 1327, and 1328).

.

235.

Illegal entry

(a)

In general

Section 275 (8 U.S.C. 1325) is amended to read as follows:

275.

Illegal entry

(a)

In General

(1)

Criminal offenses

An alien shall be subject to the penalties set forth in paragraph (2) if the alien—

(A)

knowingly enters or crosses the border into the United States at any time or place other than as designated by the Secretary of Homeland Security;

(B)

knowingly eludes examination or inspection by an immigration officer (including failing to stop at the command of such officer), or a customs or agriculture inspection at a port of entry; or

(C)

knowingly enters or crosses the border to the United States by means of a willfully false or misleading representation or the knowing concealment of a material fact (including such representation or concealment in the context of arrival, reporting, entry, or clearance requirements of the customs laws, immigration laws, agriculture laws, or shipping laws).

(2)

Criminal penalties

Any alien who violates any provision under paragraph (1)—

(A)

shall, for the first violation, be fined under title 18, United States Code, imprisoned not more than 6 months, or both;

(B)

shall, for a second or subsequent violation, or following an order of voluntary departure, be fined under such title, imprisoned not more than 2 years, or both;

(C)

if the violation occurred after the alien had been convicted of 3 or more misdemeanors or for a felony, shall be fined under such title, imprisoned not more than 5 years, or both;

(D)

if the violation occurred after the alien had been convicted of a felony for which the alien received a term of imprisonment of not less than 30 months, shall be fined under such title, imprisoned not more than 10 years, or both; and

(E)

if the violation occurred after the alien had been convicted of a felony for which the alien received a term of imprisonment of not less than 60 months, such alien shall be fined under such title, imprisoned not more than 15 years, or both.

(3)

Prior convictions

The prior convictions described in subparagraphs (C) through (E) of paragraph (2) are elements of the offenses described in that paragraph and the penalties in such subparagraphs shall apply only in cases in which the conviction or convictions that form the basis for the additional penalty are—

(A)

alleged in the indictment or information; and

(B)

proven beyond a reasonable doubt at trial or admitted by the defendant.

(4)

Attempt

Whoever attempts to commit any offense under this section shall be punished in the same manner as for a completion of such offense.

(b)

Improper time or place; civil penalties

Any alien who is apprehended while entering, attempting to enter, or knowingly crossing or attempting to cross the border to the United States at a time or place other than as designated by immigration officers shall be subject to a civil penalty, in addition to any criminal or other civil penalties that may be imposed under any other provision of law, in an amount equal to—

(1)

not less than $50 or more than $250 for each such entry, crossing, attempted entry, or attempted crossing; or

(2)

twice the amount specified in paragraph (1) if the alien had previously been subject to a civil penalty under this subsection.

.

(b)

Clerical amendment

The table of contents is amended by striking the item relating to section 275 and inserting the following:

Sec. 275. Illegal entry.

.

236.

Illegal reentry

Section 276 (8 U.S.C. 1326) is amended to read as follows:

276.

Reentry of removed aliens

(a)

Reentry after removal

Any alien who has been denied admission, excluded, deported, or removed, or who has departed the United States while an order of exclusion, deportation, or removal is outstanding, and subsequently enters, attempts to enter, crosses the border to, attempts to cross the border to, or is at any time found in the United States, shall be fined under title 18, United States Code, imprisoned not more than 2 years, or both.

(b)

Reentry of criminal offenders

Notwithstanding the penalty provided in subsection (a), if an alien described in that subsection—

(1)

was convicted for 3 or more misdemeanors or a felony before such removal or departure, the alien shall be fined under title 18, United States Code, imprisoned not more than 10 years, or both;

(2)

was convicted for a felony before such removal or departure for which the alien was sentenced to a term of imprisonment of not less than 30 months, the alien shall be fined under such title, imprisoned not more than 15 years, or both;

(3)

was convicted for a felony before such removal or departure for which the alien was sentenced to a term of imprisonment of not less than 60 months, the alien shall be fined under such title, imprisoned not more than 20 years, or both;

(4)

was convicted for 3 felonies before such removal or departure, the alien shall be fined under such title, imprisoned not more than 20 years, or both; or

(5)

was convicted, before such removal or departure, for murder, rape, kidnaping, or a felony offense described in chapter 77 (relating to peonage and slavery) or 113B (relating to terrorism) of such title, the alien shall be fined under such title, imprisoned not more than 20 years, or both.

(c)

Reentry after repeated removal

Any alien who has been denied admission, excluded, deported, or removed 3 or more times and thereafter enters, attempts to enter, crosses the border to, attempts to cross the border to, or is at any time found in the United States, shall be fined under title 18, United States Code, imprisoned not more than 10 years, or both.

(d)

Proof of prior convictions

The prior convictions described in subsection (b) are elements of the crimes described in that subsection, and the penalties in that subsection shall apply only in cases in which the conviction or convictions that form the basis for the additional penalty are—

(1)

alleged in the indictment or information; and

(2)

proven beyond a reasonable doubt at trial or admitted by the defendant.

(e)

Affirmative defenses

It shall be an affirmative defense to a violation of this section that—

(1)

prior to the alleged violation, the alien had sought and received the express consent of the Secretary of Homeland Security to reapply for admission into the United States;

(2)

with respect to an alien previously denied admission and removed, the alien—

(A)

was not required to obtain such advance consent under this Act or any prior Act; and

(B)

had complied with all other laws and regulations governing the alien’s admission into the United States;

(3)

the prior order of removal was based on charges filed against the alien before the alien reached 18 years of age; or

(4)

the alien has been found eligible for protection from removal pursuant to section 208.

(f)

Limitation on collateral attack on underlying removal order

In a criminal proceeding under this section, an alien may not challenge the validity of any prior removal order concerning the alien unless the alien demonstrates by clear and convincing evidence that—

(1)

the alien exhausted all administrative remedies that may have been available to seek relief against the order;

(2)

the removal proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and

(3)

the entry of the order was fundamentally unfair.

(g)

Reentry of alien removed prior to completion of term of imprisonment

Any alien removed pursuant to section 241(a)(4) who enters, attempts to enter, crosses the border to, attempts to cross the border to, or is at any time found in, the United States shall be incarcerated for the remainder of the sentence of imprisonment which was pending at the time of deportation without any reduction for parole or supervised release unless the alien affirmatively demonstrates that the Secretary of Homeland Security has expressly consented to the alien’s reentry. Such alien shall be subject to such other penalties relating to the reentry of removed aliens as may be available under this section or any other provision of law.

(h)

Limitation

It is not aiding and abetting a violation of this section for an individual, acting without compensation or the expectation of compensation, to—

(1)

provide, or attempt to provide, an alien with humanitarian assistance, including emergency medical care, food; or

(2)

transport the alien to a location where such assistance can be rendered.

.

III

Employment Verification

301.

Employment verification

(a)

In general

Section 274A (8 U.S.C. 1324a) is amended to read as follows:

274A.

Employment verification

(a)

Making employment of unauthorized aliens unlawful

(1)

In general

It is unlawful for an employer—

(A)

to hire, recruit, or refer for a fee an alien for employment in the United States knowing or with reckless disregard that the alien is an unauthorized alien with respect to such employment; or

(B)

to hire in the United States an individual unless such employer meets the requirements of subsections (b) and (c).

(2)

Continuing employment

It is unlawful for an employer, after lawfully hiring an alien for employment, to continue to employ the alien in the United States knowing that the alien is (or has become) an unauthorized alien with respect to such employment.

(3)

Use of labor through contract

An employer who uses a contract, subcontract, or exchange entered into, renegotiated, or extended after the date of the enactment of the STRIVE Act of 2007, to obtain the labor of an alien in the United States knowing or with reckless disregard that the alien is an unauthorized alien with respect to performing such labor, shall be considered to have hired the alien for employment in the United States in violation of paragraph (1)(A).

(4)

Order of internal review and certification of compliance

(A)

Authority to require certification

If the Secretary has reasonable cause to believe that an employer has failed to comply with this section, the Secretary is authorized, at any time, to require that the employer certify that the employer is in compliance with this section or has instituted a program to come into compliance with the section.

(B)

Content of certification

Not later than 60 days after the date an employer receives a request for a certification under subparagraph (A) the employer shall certify under penalty of perjury that—

(i)

the employer is in compliance with the requirements of subsections (b) and (c); or

(ii)

that the employer has instituted a program to come into compliance with such requirements.

(C)

Extension

The 60-day period referred to in subparagraph (B), may be extended by the Secretary for good cause, at the request of the employer.

(D)

Publication

The Secretary is authorized to publish in the Federal Register standards or methods for certification under subparagraph (A) and for specific recordkeeping practices with respect to such certification, and procedures for the audit of any records related to such certification.

(5)

Defense

(A)

In general

Subject to subparagraph (B), an employer that establishes that the employer has complied in good faith, notwithstanding a technical or procedural failure, with the requirements of subsections (b) and (c) with respect to the hiring of an individual has established an affirmative defense that the employer has not violated paragraph (1)(B) with respect to such hiring.

(B)

Exception

Until the date that an employer is required to participate in the Electronic Employment Verification System under subsection (c), the employer may establish an affirmative defense under subparagraph (A) without a showing of compliance with subsection (c).

(6)

No authorization of national identification cards

Nothing in this title may be construed to authorize, directly or indirectly, the issuance, use, or establishment of a national identification card or a national identification system.

(b)

Document verification requirements

An employer hiring an individual for employment in the United States shall verify that the individual is eligible for such employment by meeting the following requirements:

(1)

Attestation by employer

(A)

Requirements

(i)

In general

The employer shall attest, under penalty of perjury and on a form prescribed by the Secretary, that the employer has verified the identity and eligibility for employment of the individual by examining a document described in subparagraph (B).

(ii)

Signature requirements

An attestation required by clause (i) may be manifested by a handwritten or electronic signature.

(iii)

Standards for examination

An employer has complied with the requirement of this paragraph with respect to examination of a document if the document examined reasonably appears on its face to be genuine and relates to the individual whose identity and eligibility for employment in the United States is being verified. Nothing in this paragraph may be construed as requiring the employer to solicit the production of any other document or as requiring the individual to produce such other document.

(B)

Employment and identification documents

A document described in this subparagraph is—

(i)

in the case of an individual who is a national of the United States—

(I)

a United States passport;

(II)

a biometric, machine readable, tamper-resistant Social Security card, as described in section 205(c)(2)(G) of the Social Security Act (42 U.S.C. 405(c)(2)(G)); or

(III)

a driver's license or identity card issued by a State, the Commonwealth of the Northern Mariana Islands, or an outlying possession of the United States that satisfies the requirements of Division B of Public Law 109–13 (119 Stat. 302);

(ii)

in the case of an alien who is lawfully admitted for permanent residence in the United States—

(I)

a permanent resident card, as specified by the Secretary; or

(II)

a biometric, machine readable, tamper-resistant Social Security card, as described in section 205(c)(2)(G) of the Social Security Act (42 U.S.C. 405(c)(2)(G));

(iii)

in the case of an alien who is not lawfully admitted for permanent residence and who is authorized under this Act or by the Secretary to be employed in the United States—

(I)

an employment authorization card, as specified by the Secretary, that—

(aa)

contains a photograph of the individual or other identifying information, including name, date of birth, gender, and address; and

(bb)

contains security features to make the document resistant to tampering, counterfeiting, and fraudulent use; or

(II)

a biometric, machine readable, tamper-resistant Social Security card, as described in section 205(c)(2)(G) of the Social Security Act (42 U.S.C. 405(c)(2)(G));

(iv)

in the case of an individual who is unable to obtain a document described in clause (i), (ii), or (iii), a document designated by the Secretary that—

(I)

contains a photograph of the individual or other identifying information, including name, date of birth, gender, and address; and

(II)

contains security features to make the document resistant to tampering, counterfeiting, and fraudulent use; or

(v)

until the date that an employer is required to participate in the Electronic Employment Verification System under subsection (c) or is participating in such System on a voluntary basis, a document, or a combination of documents, of such type that, as of the date of the enactment of the STRIVE Act of 2007, the Secretary had established by regulation were sufficient for purposes of this section.

(C)

Special rule for minors

Notwithstanding subparagraph (B), a minor who is under the age of 18 and who is unable to produce an identity document described in clause (i) through (v) of subparagraph (B) is exempt from producing such a document if—

(i)

a parent or legal guardian of the minor completes a form prescribed by the Secretary, and in the space for the minor’s signature, the parent or legal guardian writes the words, minor under age 18;

(ii)

a parent or legal guardian of the minor completes a form prescribed by the Secretary, the Preparer/Translator certification; and

(iii)

the employer of the minor writes in a form prescribed by the Secretary, in the space after the words Document Identification # the words, minor under age 18.

(D)

Special rule for individuals with disabilities

Notwithstanding subparagraph (B), an individual with a disability (as defined in section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102)) who is unable to produce an identity document described in clause (i) through (v) of subparagraph (B), and who is being placed into employment by a nonprofit organization or association or as part of a rehabilitation program, and an individual who demonstrates mental retardation whether or not the individual participates in an employment placement program through a nonprofit organization or association or as part of a rehabilitation program, is exempt from producing such a document if—

(i)

a parent or legal guardian of the individual, or a representative from the nonprofit organization, association, or rehabilitation program placing the individual into a position of employment completes a form prescribed by the Secretary, and in the space for the covered individual’s signature, writes the words, special placement;

(ii)

a parent or legal guardian of the individual or the program representative, completes a form prescribed by the Secretary, the Preparer/Translator certification; and

(iii)

the employer of the covered individual writes in a form prescribed by the Secretary, in the space after the words Document Identification # the words, special placement.

(E)

Authority to prohibit use of certain documents

(i)

Authority

If the Secretary finds that a document or class of documents described in clause (i) through (v) of subparagraph (B) is not reliable to establish identity or eligibility for employment (as the case may be) or is being used fraudulently to an unacceptable degree, the Secretary is authorized to prohibit, or impose conditions on, the use of such document or class of documents for purposes of this subsection.

(ii)

Requirement for publication

The Secretary shall publish notice of any findings under clause (i) in the Federal Register.

(2)

Attestation of individual

(A)

In general

The individual shall attest, under penalty of perjury on a form prescribed by the Secretary, that the individual is—

(i)

a national of the United States;

(ii)

an alien lawfully admitted for permanent residence; or

(iii)

an alien who is authorized under this Act or by the Secretary to be employed in the United States.

(B)

Signature for examination

An attestation required by subparagraph (A) may be manifested by a handwritten or electronic signature.

(C)

Penalties

An individual who falsely represents that the individual is eligible for employment in the United States in an attestation required by subparagraph (A) shall, for each such violation, be subject to a fine of not more than $5,000, a term of imprisonment not to exceed 3 years, or both.

(3)

Retention of attestation

The employer shall retain an attestation described in paragraph (1) or (2) for an individual, either in electronic, paper, microfiche, or microfilm form, and make such attestations available for inspection by an officer of the Department of Homeland Security, any other person designated by the Secretary, the Special Counsel for Immigration-Related Unfair Employment Practices of the Department of Justice, or the Secretary of Labor—

(A)

during a period beginning on the date of the hiring of the individual and ending on the date that is the later of—

(i)

3 years after the date of such hiring; or

(ii)

1 year after the date the individual’s employment is terminated; or

(B)

during a shorter period determined by the Secretary, if the Secretary reduces the period described in subparagraph (A) for the employer or a class of employers that includes the employer.

(4)

Document retention and recordkeeping requirements

(A)

Retention of documents

Notwithstanding any other provision of law, an employer shall retain, for the applicable period described in paragraph (3), the following documents:

(i)

In general

A paper, microfiche, microfilm, or electronic copy of each document described in paragraph (1)(B) presented by an individual that is designated as a copied document.

(ii)

Other documents

A record of any action taken, and copies of any correspondence written or received, with respect to the verification of an individual's identity or eligibility for employment in the United States, including records received through the Electronic Employment Verification System under subsection (c).

(B)

Use of retained documents

An employer shall use copies retained under clause (i) or (ii) of subparagraph (A) only for the purposes of complying with the requirements of this subsection, except as otherwise permitted under law.

(5)

Penalties

An employer that fails to comply with the requirement of this subsection shall be subject to the penalties described in subsection (d)(4)(B).

(c)

Electronic Employment Verification System

(1)

Requirement for System

The Secretary, in cooperation with the Commissioner of Social Security, shall implement an Electronic Employment Verification System (referred to in this subsection as the System) as described in this subsection.

(2)

Technology standard to verify employment eligibility

(A)

In general

The Secretary based upon recommendations from the Director of the National Institute of Standards and Technology, shall not later than 180 days after the date of the enactment of the STRIVE Act of 2007 develop and certify a technology standard as described in this subparagraph. The Secretary shall have discretion to extend the 180-day period if the Secretary determines that such extension will result in substantial improvement of the System.

(B)

Integrated

Notwithstanding any other provision of Federal law, the technology standard developed shall be the technological basis for a cross-agency, cross-platform electronic system that is a cost-effective, efficient, fully integrated means to share immigration and Social Security information necessary to confirm the employment eligibility of all individuals seeking employment.

(C)

Report

Not later than 18 months after the date of the enactment of the STRIVE Act of 2007, the Secretary and the Director of the National Institute of Standards and Technology shall jointly submit to Congress a report describing the development, implementation, efficacy, and privacy implications of the technology standard and the System.

(3)

Identity and employment eligibility verification

An employer shall verify the identity and eligibility for employment of an individual hired by the employer through the System as follows:

(A)

Initial inquiry

The employer shall submit an inquiry through the System to seek confirmation of the individual's identity and eligibility for employment in the United States not later than 5 working days after the date such employment actually commences.

(B)

Initial determination

The Secretary, through the System, shall respond to an inquiry described in subparagraph (A) not later than 1 working day after such inquiry is submitted. Such response shall be a determination that—

(i)

confirms the individual’s identity and eligibility for employment in the United States; or

(ii)

the System is tentatively unable to confirm the individual’s identity or eligibility for employment (referred to in this section as a tentative nonconfirmation).

(C)

Manual verification

(i)

Requirement

If the System provides a tentative nonconfirmation with respect to an individual, the Secretary shall—

(I)

provide the individual an opportunity to submit information to verify the individual's identity and eligibility for employment as described in subparagraph (D); and

(II)

conduct a manual verification to determine the individual’s identity and eligibility for employment.

(ii)

Determination

Not later than 30 days after the last day that an individual may submit information under subparagraph (D) the Secretary, through the System, shall provide to the employer the results of the manual verification required by clause (i). Such results shall be a determination that—

(I)

confirms the individual’s identity and eligibility for employment in the United States; or

(II)

the System is unable to confirm the individual’s identity or eligibility for employment (referred to in this section as a final nonconfirmation).

(D)

Submission of information

An individual who is the subject of a tentative nonconfirmation may submit to the Secretary, through the System, information to confirm such individual's identity or eligibility for employment or to otherwise contest such tentative nonconfirmation not later that 15 days after the individual receives notice of such tentative nonconfirmation.

(E)

Extension

The 15-day period referred to in subparagraph (D) may be extended by the Secretary for good cause at the request of the individual.

(F)

Default confirmation and revocation

If the Secretary, through the System, fails to provide a determination described in clause (i) or (ii) of subparagraph (B) or subclause (I) or (II) of subparagraph (C)(ii) for an individual within the period described in such subparagraph, the Secretary shall, through the System, deem that the individual's identity and eligibility for employment are confirmed through the System and provide notice of such confirmation to the employer.

(G)

Revocation

In the case of a default confirmation in subclause (F), the Secretary reserves the right to revoke such default confirmation if the Secretary later determines the individual is, in fact, not eligible to work. The Secretary shall provide notice of such revocation and final nonconfirmation to the employer. The individual shall have the right to administrative review under paragraph (19) and judicial review under paragraph (20) of such final nonconfirmation.

(H)

Prohibitiion on termination for tentative nonconfirmation

An employer may not terminate the employment of an individual based on tentative nonconfirmation.

(I)

Termination of employee

If an employer receives a final nonconfirmation with respect to an individual, the employer shall terminate the employment of such individual.

(J)

Administrative and judicial review

If the Secretary, through the System, provides a final nonconfirmation with respect to an individual, the individual shall have the right to administrative review under paragraph (19) and judicial review under paragraph (20) of such final nonconfirmation.

(K)

Right to review and correct system information

The Secretary, in consultation with the Commissioner of Social Security, shall establish procedures to permit an individual to verify the individual's eligibility for employment in the United States prior to obtaining or changing employment, to view the individual’s own records in the System in order to ensure the accuracy of such records, and to correct or update the information used by the System regarding the individual.

(L)

Reverification

(i)

In general

It is an unfair immigration-related employment practice under section 274B for an employer to reverify an individual’s identity and employment eligibility unless—

(I)

the individual's work authorization expires as described in section 274a.2(b)(1)(vii) of title 8, Code of Federal Regulation or a subsequent similar regulation, in which case—

(aa)

not later than 30 days prior to the expiration of the individual's work authorization, the Secretary shall notify the employer of such expiration and of the employer's need to reverify the individual's employment eligibility; and

(bb)

the individual may present, and the employer shall accept, a receipt for the application for a replacement document, extension of work authorization, or a document described in clause (i) through (v) of subparagraph (B) of subsection (b)(1) in lieu of the required document by the expiration date in order to comply with any requirement to examine documentation imposed by this section, and the individual shall present the required document within 90 days from the date the employment authorization expires. If the actual document or replacement document is to be issued by United States Citizenship and Immigration Services and the application is still under review 60 days after the employment authorization expiration date, United States Citizenship and Immigration Services shall by the 60th day after the expiration date of the employment authorization, issue a letter for the applicant to take to the employer which shall automatically grant the individual an additional 90 days to present the document or replacement document; and

(II)

the employer has actual or constructive knowledge that the individual is not authorized to work in the United States; or

(III)

unless otherwise required by law.

(ii)

Continuing employment

An employer may not verify an individual’s employment eligibility if the individual is continuing in his or her employment as described in section 274a.2(b)(1)(viii) of title 8, Code of Federal Regulation or any subsequent similar regulation.

(iii)

Special rule for critical infrastructure

Upon the implementation of the System, the Secretary shall require all agencies and departments of the United States (including the Armed Forces), a State government (including a State employment agency before making a referral), or any other employer if it employs individuals working in a location that is a Federal, State, or local government building, a military base, a nuclear energy site, a weapon site, or an airport, to complete a one time reverification of all individuals current employed at these facilities.

(4)

Design and operation of system

The Secretary, in consultation with the Commissioner of Social Security, shall design and operate the System—

(A)

to maximize reliability and ease of use by employers in a manner that protects and maintains the privacy and security of the information maintained in the System;

(B)

to permit an employer to submit an inquiry to the System through the Internet or other electronic media or over a telephone line;

(C)

to respond to each inquiry made by an employer;

(D)

to maintain a record of each such inquiry and each such response;

(E)

to track and record any occurrence when the System is unable to receive such an inquiry;

(F)

to include appropriate administrative, technical, and physical safeguards to prevent unauthorized disclosure of personal information during use, transmission, storage, or disposal of that information, including the use of encryption, carrying out periodic testing of the System to detect, prevent, and respond to vulnerabilities or other failures, and utilizing periodic security updates;

(G)

to allow for monitoring of the use of the System and provide an audit capability;

(H)

to have reasonable safeguards, developed in consultation with the Attorney General, to prevent employers from engaging in unlawful discriminatory practices;

(I)

to permit an employer to submit the attestations required by subsection (b); and

(J)

to permit an employer to utilize any technology that is consistent with this section and with any regulation or guidance from the Secretary to streamline the procedures to comply with the attestation and employment eligibility verification requirements contained in this section.

(5)

Limitation on data elements stored

The System and any databases created by the Commissioner of Social Security or the Secretary for use in the System shall store only the minimum data about each individual for whom an inquiry was made through the System to facilitate the successful operation of the System, and in no case shall the data stored be other than—

(A)

the individual’s full legal name;

(B)

the individual’s date of birth;

(C)

the individual’s social security account number or employment authorization status identification number;

(D)

the address of the employer making the inquiry and the dates of any prior inquiries concerning the identity and authorization of the individual by the employer or any other employer and the address of such employer;

(E)

a record of each prior determination regarding the individual's identity and employment eligibility issued through the System; and

(F)

in the case of the individual who successfully contested or appealed a tentative nonconfirmation or final nonconfirmation, explanatory information concerning the successful resolution of any erroneous data or confusion regarding the identity or eligibility for employment of the individual, including the source of that error.

(6)

Responsibilities of the Commissioner of Social Security

The Commissioner of Social Security shall establish a reliable, secure method to provide through the System, within the time periods required by subparagraphs (B) and (C) of paragraph (2)—

(A)

a determination of whether the name and social security account number provided, with respect to an individual, in an inquiry by an employer, match such information maintained by the Commissioner in order to confirm the validity of the information provided;

(B)

a determination of whether such social security account number was issued to the individual;

(C)

a determination of whether such social security account number is valid for employment in the United States; and

(D)

a determination described in subparagraph (B) or (C) of paragraph (2), in a manner that ensures that other information maintained by the Commissioner is not disclosed or released to employers through the System.

(7)

Responsibilities of the Secretary

The Secretary shall establish a reliable, secure method to provide, through the System, within the time periods required by subparagraphs (B) and (C) of paragraph (2)—

(A)

a determination of whether the name and alien identification or authorization number provided, with respect to an individual, in an inquiry by an employer match such information maintained by the Secretary in order to confirm the validity of the information provided;

(B)

a determination of whether such number was issued to the individual;

(C)

a determination of whether the individual is authorized to be employed in the United States; and

(D)

any other related information that the Secretary determines is appropriate.

(8)

Privacy impact assessment

The Commissioner of Social Security and the Secretary shall each complete a privacy impact assessment as described in section 208 of the E-Government Act of 2002 (Public Law 107–347; 44 U.S.C. 3501 note) with regard to the System.

(9)

Training

The Commissioner of Social Security and the Secretary shall provide appropriate training materials to employers participating in the System to ensure that such employers are able to utilize the System in compliance with the requirements of this section.

(10)

Hotline

The Secretary shall establish a fully staffed 24-hour hotline that shall receive inquiries from individuals or employers concerning determinations made by the System and shall identify for an individual, at the time of inquiry, the particular data that resulted in a determination that the System was unable to verify the individual's identity or eligibility for employment.

(11)

Participation

(A)

Requirements for participation

Except as provided in subparagraphs (D) and (E), the Secretary shall require employers to participate in the System as follows:

(i)

Critical employers

Not later than 1 year after the date of enactment of the STRIVE Act of 2007, the Secretary shall require all agencies and departments of the United States (including the Armed Forces), a State government (including a State employment agency before making a referral), or any other employer if it employs individuals working in a location that is a Federal, State, or local government building, a military base, a nuclear energy site, a weapon site, or an airport, but only to the extent of such individuals, to participate in the System, with respect to all individuals hired after the date the Secretary requires such participation.

(ii)

Large employers

Not later than 2 years after the date of enactment of the STRIVE Act of 2007 the Secretary shall require an employer with 5,000 or more employees in the United States to participate in the System, with respect to all employees hired by the employer after the date the Secretary requires such participation.

(iii)

Mid-sized employers

Not later than 3 years after the date of enactment of the STRIVE Act of 2007 the Secretary shall require an employer with less than 5,000 employees and 1,000 or more employees in the United States to participate in the System, with respect to all employees hired by the employer after the date the Secretary requires such participation.

(iv)

Small employers

Not later than 4 years after the date of the enactment of the STRIVE Act of 2007, the Secretary shall require all employers with less than 1,000 employees in the United States to participate in the System, with respect to all employees hired by the employer after the date the Secretary requires such participation.

(B)

Requirement to publish

The Secretary shall publish in the Federal Register the requirements for participation in the System for employers described in clauses (i) through (iv) of subparagraph (A) prior to the effective date of such requirements.

(C)

Other participation in system

(i)

Voluntary participation

Notwithstanding subparagraph (A), the Secretary has the authority to permit any employer that is not required to participate in the System under subparagraph (A) to participate in the System on a voluntary basis.

(ii)

Employers not required to participate

Notwithstanding subparagraph (A) employers are not required to verify the identify or employment eligibility through the System for—

(I)

an individual performing casual employment for the employer and who provides domestic service in a private home that is sporadic, irregular, or intermittent;

(II)

a worker provided to the employer by a person providing contract services, such as a temporary agency; or

(III)

an independent contractor, performing services for the employer.

(iii)

Relationship to other requirements

Nothing in clause (ii) may be construed to effect the requirements for the contracting party who employs a worker referred to in subclause (II) of such clause or an employer of an independent contractor referred to in subclause (III) of such clause to participate in the System with respect to such worker or independent contractor under this subsection.

(D)

Waiver

(i)

Authority to provide a waiver

The Secretary is authorized to waive or delay the participation requirements of subparagraph (A) with respect to any employer or class of employers if the Secretary provides notice to Congress of such waiver prior to the date such waiver is granted.

(ii)

Requirement to provide a waiver

The Secretary shall waive or delay the participation requirements of subparagraph (A) with respect to any employer or class of employers until the date that the Comptroller General of the United States submits the initial certification described in paragraph (17)(E) and shall waive or delay such participation during a year if the Comptroller General fails to submit a certification of paragraph (17)(E) for such year.

(E)

Consequence of failure to participate

If an employer is required to participate in the System and fails to comply with the requirements of the System with respect to an individual—

(i)

such failure shall be treated as a violation of subsection (a)(1)(B); and

(ii)

a rebuttable presumption is created that the employer has violated subsection (a)(1)(A), however, such presumption may not apply to a prosecution under subsection (e)(1).

(12)

Employer requirements

(A)

In general

An employer that participates in the System, with respect to the hiring of an individual for employment in the United States, shall—

(i)

notify the individual of the use of the System and that the System may be used for immigration enforcement purposes;

(ii)

obtain from the individual the documents required by subsection (b)(1) and record on the form designated by the Secretary—

(I)

the individual's social security account number; and

(II)

in the case of an individual who does not attest that the individual is a national of the United States under subsection (b)(2), such identification or authorization number that the Secretary shall require;

(iii)

retain such form in electronic, paper, microfilm, or microfiche form and make such form available for inspection for the periods and in the manner described in subsection (b)(3); and

(iv)

safeguard any information collected for purposes of the System and protect any means of access to such information to ensure that such information is not used for any purpose other than to determine the identity and employment eligibility of the individual and to protect the confidentiality of such information, including ensuring that such information is not provided to any person other than a person that carries out the employer’s responsibilities under this subsection.

(B)

Schedule

(i)

Replacement documents

An employer shall accept a receipt for the application for a replacement document or a document described in subparagraph (B) of subsection (b)(1) in lieu of the required document in order to comply with any requirement to examine documentation imposed by this section, in the following circumstances:

(I)

The individual is unable to provide the required document within the time specified in this section because the document was lost, stolen, or damaged.

(II)

The individual presents a receipt for the application for the document within the time specified in this section.

(III)

The individual presents the document within 90 days of the hire. If the actual document or replacement document is to be issued by the United States Citizenship and Immigration Services and the application is still under review 60 days after receipt of the application, United States Citizenship and Immigration Services shall, not later than the 60th day after receipt of the application, issue a letter for the applicant to take to the employer which shall automatically grant the individual an additional 90 days from the original deadline in subsection (b)(6)(A)(i)(II) to present the document or replacement document; and

(ii)

Prohibition on acceptance of a receipt for short-term employment

An employer may not accept a receipt in lieu of the required document if the individual is hired for a duration of less than 10 working days.

(C)

Confirmation or nonconfirmation

(i)

Retention

If an employer receives a determination through the System under paragraph (3) for an individual, the employer shall retain either an electronic, paper, or microfiche form record of such confirmation for the period required by subsection (b)(4)(A).

(ii)

Nonconfirmation and verification

(I)

Nonconfirmation

If an employer receives a tentative nonconfirmation with respect to an individual, the employer shall retain either an electronic or paper record of such nonconfirmation for the period required by subsection (b)(4)(A) and inform such individual not later than 10 working days after the issuance of such notice in the manner prescribed by the Secretary that includes information regarding the individual's right to submit information to contest the tentative nonconfirmation under paragraph (2)(D) and the address and telephone numbers established by the Commissioner and the Secretary to obtain information on how to submit such information.

(II)

No contest

If the individual does not contest the tentative nonconfirmation notice within 15 working days of receiving notice from the individual's employer, the notice shall become final and the employer shall retain either an electronic or paper record of such final nonconfirmation for the period required by subsection (b)(4)(A). An individual’s failure to contest a tentative nonconfirmation may not be the basis for determining that the employer acted in a knowing (as defined in section 274a.1 of title 8, Code of Federal Regulations, or any corresponding similar regulation) manner.

(III)

Contest

If the individual contests the tentative nonconfirmation notice under subclause (I), the individual shall submit appropriate information to contest such notice to the System within 15 working days of receiving notice from the individual's employer and shall utilize the verification process developed under paragraph (2)(C)(ii). Such individual shall acknowledge receipt of such notice in writing.

(IV)

Effective period of tentative nonconfirmation

A tentative nonconfirmation notice shall remain in effect until such notice becomes final under clause (II) or a final confirmation notice or final nonconfirmation notice is issued by the System.

(V)

Prohibition

An employer may not terminate the employment of an individual based on a tentative nonconfirmation notice until such notice becomes final under clause (II) or a final nonconfirmation notice is issued for the individual by the System. Nothing in this clause shall apply to termination of employment for any reason other than because of such a tentative nonconfirmation.

(VI)

Recording of conclusion on form

If a final confirmation or nonconfirmation is provided by the System regarding an individual, the employer shall record on the form designated by the Secretary the appropriate code that is provided under the System to indicate a confirmation or nonconfirmation of the identity and employment eligibility of the individual.

(D)

Consequences of nonconfirmation

If an employer has received a final nonconfirmation with respect to an individual, the employer shall terminate the employment of the individual. If the employer continues to employ the individual after receiving final nonconfirmation, a rebuttable presumption is created that the employer has violated paragraphs (1)(A) and (2) of subsection (a). Such presumption may not apply to a prosecution under subsection (e)(1).

(13)

Prohibition of unlawful accessing and obtaining of information

(A)

In general

It shall be unlawful for any individual other than an employee of the Social Security Administration or the Department of Homeland Security specifically charged with maintaining the System to intentionally and knowingly—

(i)

access the System or the databases utilized to verify identity or employment eligibility for the System for any purpose other than verifying identity or employment eligibility or modifying the System pursuant to law or regulation; or

(ii)

obtain the information concerning an individual stored in the System or the databases utilized to verify identity or employment eligibility for the System for any purpose other than verifying identity or employment authorization or modifying the System pursuant to law or regulation.

(B)

Penalties

(i)

Unlawful access

Any individual who unlawfully accesses the System or the databases as described in subparagraph (A)(i) shall be fined no more than $1,000 per individual or sentenced to no more than 6 months imprisonment or both per individual whose file was compromised.

(ii)

Unlawful use

Any individual who unlawfully obtains information stored in the System in the database utilized to verify identity or employment eligibility for the System and uses the information to commit identity theft for financial gain or to evade security or to assist another in gaining financially or evading security, shall be fined no more than $10,000 per individual or sentenced to no more than 1 year of imprisonment or both per individual whose information was obtained and misappropriated.

(14)

Protection from liability

No employer that participates in the System and complies in good faith with the attestation in subsection (b)(1) shall be liable under any law for any employment-related action taken with respect to an individual in good faith reliance on information provided by the System regarding that individual.

(15)

Limitation on use of the System

Notwithstanding any other provision of law, nothing in this subsection shall be construed to permit or allow any department, bureau, or other agency of the United States to utilize any information, database, or other records used in the System for any purpose other than as provided for under this subsection.

(16)

Access to database

No officer or employee of any agency or department of the United States, other than such an officer or employee who is responsible for the verification of employment eligibility or for the evaluation of an employment eligibility verification program at the Social Security Administration, the Department of Homeland Security, and the Department of Labor, may have access to any information, database, or other records utilized by the System.

(17)

Modification authority

The Secretary, after notice is submitted to Congress and provided to the public in the Federal Register, is authorized to modify the requirements of this subsection, including requirements with respect to completion of forms, method of storage, attestations, copying of documents, signatures, methods of transmitting information, and other operational and technical aspects to improve the efficiency, accuracy, and security of the System.

(18)

Annual study and report

(A)

Requirement for study

The Comptroller General of the United States shall conduct an annual study of the System as described in this paragraph.

(B)

Purpose of the study

The Comptroller General shall, for each year, undertake a study to determine whether the System meets the following requirements:

(i)

Demonstrated accuracy of the databases

New information and information changes submitted by an individual to the System is updated in all of the relevant databases not later than 3 working days after submission in at least 99 percent of all cases.

(ii)

Low error rates and delays in verification

(I)

Incorrect tentative nonconfirmation notices

That, during a year, not more than 1 percent of all tentative nonconfirmations provided through the System during such year are incorrect.

(II)

Incorrect final nonconfirmation notices

That, during a year, not more than 3 percent of all final nonconfirmations provided through the System during such year are incorrect.

(III)

Rates of incorrect tentative nonconfirmation notices

That, during a year, the number of incorrect tentative nonconfirmations provided through the System for individuals who are not nationals of the United States is not more than 300 percent more than the number of such incorrect notices provided for nationals of the United States.

(IV)

Rates of incorrect final nonconfirmation notices

That, during a year, the number of incorrect final nonconfirmations provided through the System for individuals who are not nationals of the United States is not more than 300 percent more than the number of such incorrect notices provided for nationals of the United States during such year.

(iii)

Measurable employer compliance with System requirements

(I)

No discrimination based on system operations

The System has not and will not result in increased discrimination or cause reasonable employers to conclude that individuals of certain races or ethnicities are more likely to have difficulties when offered employment caused by the operation of the System.

(II)

Requirement for independent study

The determination described in subclause (I) shall be based on an independent study commissioned by the Comptroller General in each phase of expansion of the System.

(iv)

Protection of workers’ private information

At least 97 percent of employers who participate in the System are in full compliance with the privacy requirements described in this subsection.

(v)

Adequate agency staffing and funding

The Secretary and Commissioner of Social Security have sufficient funding to meet all of the deadlines and requirements of this subsection.

(C)

Consultation

In conducting a study under this paragraph, the Comptroller General shall consult with representatives of business, labor, immigrant communities, State governments, privacy advocates, and appropriate departments of the United States.

(D)

Requirement for reports

Not later than 21 months after the date of the enactment of the STRIVE Act of 2007, and annually thereafter, the Comptroller General shall submit to the Secretary and to Congress a report containing the findings of the study carried out under this paragraph.

(E)

Certification

If the Comptroller General determines that the System meets the requirements set out in clauses (i) through (v) of subparagraph (B) for a year, the Comptroller shall certify such determination and submit such certification to Congress with the report required by subparagraph (D).

(19)

Administrative review

(A)

In general

An individual who is terminated from employment as a result of a final nonconfirmation may, not later than 60 days after the date of such termination, file an appeal of such final nonconfirmation.

(B)

Procedures

The Secretary and Commissioner of Social Security shall develop procedures to review appeals filed under subparagraph (A) and to make final determinations on such appeals.

(C)

Review for errors

If a final determination on an appeal filed under subparagraph (A) results in a confirmation of an individual's eligibility for employment in the United States, the administrative review process shall require the Secretary to determine if the final nonconfirmation issued for the individual was the result of—

(i)

an error or negligence on the part of an employee or official operating or responsible for the System;

(ii)

the decision rules, processes, or procedures utilized by the System; or

(iii)

erroneous system information that was not the result of acts or omissions of the individual.

(D)

Compensation for error

(i)

In general

If the Secretary makes a determination under subparagraph (C) that the final nonconfirmation issued for an individual was not caused by an act or omission of the individual, the Secretary shall compensate the individual for lost wages.

(ii)

Calculation of lost wages

Lost wages shall be calculated based on the wage rate and work schedule that prevailed prior to termination. The individual shall be compensated for wages lost beginning on the first scheduled work day after employment was terminated and ending 180 days after completion of the administrative review process described in this paragraph or the day after the individual is reinstated or obtains employment elsewhere, whichever occurs first.

(E)

Limitation on compensation

For purposes of determining an individual's compensation for the loss of employment, such compensation shall not include any period in which the individual was ineligible for employment in the United States.

(F)

Source of funds

Compensation or reimbursement provided under this paragraph shall not be provided from funds appropriated in annual appropriations Acts to the Secretary for the Department of Homeland Security.

(20)

Judicial review

(A)

In general

After the Secretary makes a final determination on an appeal filed by an individual under paragraph (19), the individual may obtain judicial review of such determination in a civil action commenced not later than 90 days after notice of such decision, or such further time as the Secretary may allow.

(B)

Report

Not later than 180 days after the date of enactment of the STRIVE Act of 2007, the Director of the Federal Judicial Center shall submit to Congress a report on judicial review of an administrative decision on a final nonconfirmation. The report shall contain recommendations on jurisdiction and procedures that shall be instituted to seek adequate and timely review of such decision.

(C)

Compensation for error

(i)

In general

In cases in which such judicial review reverses the final determination of the Secretary made under paragraph (19), the court shall compensate the individual for lost wages.

(ii)

Calculation of lost wages

Lost wages shall be calculated based on the wage rate and work schedule that prevailed prior to termination. The individual shall be compensated for wages lost beginning on the first scheduled work day after employment was terminated and ending 180 days after completion of the judicial review described in this paragraph or the day after the individual is reinstated or obtains employment elsewhere, whichever occurs first.

(21)

Enforcement of violations

No private right of action shall exist for any claim based on a violation of this section. The Government of the United States shall have exclusive enforcement authority over violations of this section and shall use only the powers, penalties, and mechanisms found in this section. This paragraph shall apply to all cases in which a final judgment has not been entered prior to or on the date of enactment of the STRIVE Act of 2007.

(22)

Safe harbor for contractors

A person shall not be liable for a violation of paragraph (1)(A), (1)(B), or (2) of subsection (a) with respect to the hiring or continuation of employment of an unauthorized alien by a subcontractor of that person unless the person knew that the subcontractor hired or continued to employ such alien in violation of such a paragraph.

(23)

Statutory construction

Nothing in this subsection shall affect any existing rights and obligations of employers or employees under other Federal, State, or local laws.

(d)

Compliance

(1)

Complaints and investigations

The Secretary shall establish procedures—

(A)

for a person to file a complaint regarding a potential violation of paragraph (1)(A), (1)(B), or (2) of subsection (a);

(B)

for the investigation of any such complaint that the Secretary determines is appropriate to investigate; and

(C)

for the investigation of such other violation of paragraph (1)(A), (1)(B), or (2) of subsection (a) that the Secretary determines is appropriate.

(2)

Authority in investigations

(A)

In general

In conducting investigations and hearings under this subsection, officers and employees of the Department of Homeland Security, if designated by the Secretary, may compel by subpoena the attendance of witnesses and the production of evidence at any designated place in an investigation or case under this subsection.

(B)

Failure to cooperate

In case of refusal to obey a subpoena lawfully issued under subparagraph (A), the Secretary may request that the Attorney General apply in an appropriate district court of the United States for an order requiring compliance with such subpoena, and any failure to obey such order may be punished by such court as contempt.

(C)

Department of Labor

The Secretary of Labor shall have the investigative authority provided under section 11(a) of the Fair Labor Standards Act of 1938 (29 U.S.C. 211(a)) to ensure compliance with the provisions of this section, or any regulation or order issued under this section.

(3)

Compliance procedures

(A)

Prepenalty notice

If the Secretary has reasonable cause to believe that there has been a violation of a requirement of this section and determines that further proceedings related to such violation are warranted, the Secretary shall issue to the employer concerned a written notice of the Secretary's intention to issue a claim for a fine or other penalty. Such notice shall—

(i)

describe the violation;

(ii)

specify the laws and regulations allegedly violated;

(iii)

disclose the material facts which establish the alleged violation; and

(iv)

inform such employer that the employer shall have a reasonable opportunity to make representations as to why a claim for a monetary or other penalty should not be imposed.

(B)

Remission or mitigation of penalties

(i)

Petition by employer

If an employer receives written notice of a fine or other penalty in accordance with subparagraph (A), the employer may file within 45 days from receipt of such notice, with the Secretary a petition for the remission or mitigation of such fine or penalty, or a petition for termination of the proceedings. The petition may include any relevant evidence or proffer of evidence the employer wishes to present, and shall be filed and considered in accordance with procedures to be established by the Secretary.

(ii)

Review by Secretary

If the Secretary finds that such fine or other penalty was incurred erroneously, or finds the existence of such mitigating circumstances as to justify the remission or mitigation of such fine or penalty, the Secretary may remit or mitigate such fine or other penalty on the terms and conditions as the Secretary determines are reasonable and just, or order termination of any proceedings related to the notice. Such mitigating circumstances may include good faith compliance and participation in, or agreement to participate in, the System, if not otherwise required.

(iii)

Applicability

This subparagraph may not apply to an employer that has or is engaged in a pattern or practice of violations of paragraph (1)(A), (1)(B), or (2) of subsection (a) or of any other requirements of this section.

(C)

Penalty claim

After considering evidence and representations offered by the employer pursuant to subparagraph (B), the Secretary shall determine whether there was a violation and promptly issue a written final determination setting forth the findings of fact and conclusions of law on which the determination is based and the appropriate penalty.

(4)

Civil penalties

(A)

Hiring or continuing to employ unauthorized aliens

Any employer that violates paragraph (1)(A) or (2) of subsection (a) shall pay civil penalties as follows:

(i)

Pay a civil penalty of not less than $500 and not more than $4,000 for each unauthorized alien with respect to each such violation.

(ii)

If the employer has previously been fined 1 time within the preceding 12 months under this subparagraph, pay a civil penalty of not less than $4,000 and not more than $10,000 for each unauthorized alien with respect to each such violation.

(iii)

If the employer has previously been fined more than 1 time within the preceding 12 months under this subparagraph or has failed to comply with a previously issued and final order related to any such provision, pay a civil penalty of not less than $6,000 and not more than $20,000 for each unauthorized alien with respect to each such violation.

(B)

Record keeping or verification practices

Any employer that violates or fails to comply with paragraph (1)(B) of subsection (a) shall pay a civil penalty as follows:

(i)

Pay a civil penalty of not less than $200 and not more than $2,000 for each such violation or failure.

(ii)

If the employer has previously been fined 1 time within the preceding 12 months under this subparagraph, pay a civil penalty of not less than $400 and not more than $4,000 for each such violation of failure.

(iii)

If the employer has previously been fined more than 1 time within the preceding 12 months under this subparagraph or has failed to comply with a previously issued and final order related to such requirements, pay a civil penalty of $6,000 for each such violation or failure.

(iv)

Special rule governing paperwork violation

In the case where an employer commits a violation of this section that is deemed to be purely a paperwork violation where the Secretary fails to establish any intent to hire an individual who is not unauthorized for employment in the United States, the Secretary shall permit the employer to correct such paperwork error within 30 days of receiving notice from the Secretary of such violation.

(C)

Other penalties

Notwithstanding subparagraphs (A) and (B), the Secretary may impose additional penalties for violations, including cease and desist orders, specially designed compliance plans to prevent further violations, suspended fines to take effect in the event of a further violation, and in appropriate cases, the civil penalty described in subsection (f)(2).

(D)

Reduction of penalties

Notwithstanding subparagraphs (A), (B), and (C), the Secretary is authorized to reduce or mitigate penalties imposed upon employers, based upon factors including the employer's hiring volume, compliance history, good-faith implementation of a compliance program, participation in a temporary worker program, and voluntary disclosure of violations of this subsection to the Secretary.

(5)

Judicial review

(A)

In general

An employer adversely affected by a final determination may, within 45 days after the date the final determination is issued, obtain judicial review of such determination.

(B)

Report

Not later than 180 days after the date of enactment of the STRIVE Act of 2007, the Director of the Federal Judicial Center shall submit to Congress a report on judicial review of a final determination. The report shall contain recommendations on jurisdiction and procedures that shall be instituted to seek adequate and timely review of such decision.

(6)

Enforcement of orders

If an employer fails to comply with a final determination issued against that employer under this subsection, and the final determination is not subject to review as provided in paragraph (5), the Attorney General may file suit to enforce compliance with the final determination, not earlier than 46 days and not later than 90 days, after the date the final determination is issued, in any appropriate district court of the United States. The burden shall remain on the employer to show that the final determination was not supported by a preponderance of the evidence.

(7)

Recovery of costs and attorneys’ fees

In any appeal brought under paragraph (5) or suit brought under paragraph (6), the employer shall be entitled to recover from the Secretary reasonable costs and attorneys’ fees if such employer prevails on the merits of the case. The award of attorneys’ fees shall not exceed $50,000. Such amount shall be subject to annual inflation adjustments per the United States Consumer Price Index - All Urban Consumers (CPI-U) compiled by the Bureau of Labor Statistics. Any costs and attorneys’ fees assessed against the Secretary shall be charged against the operating expenses of the Department of Homeland Security for the fiscal year in which the assessment is made, and shall not be reimbursed from any other source.

(e)

Criminal penalties and injunctions for pattern or practice violations

(1)

Criminal penalty

An employer that engages in a pattern or practice of knowing violations of paragraph (1)(A) or (2) of subsection (a) shall be fined not more than $20,000 for each unauthorized alien with respect to whom such a violation occurs, imprisoned for not more than 3 years for the entire pattern or practice, or both.

(2)

Enjoining of pattern or practice violations

If the Secretary or the Attorney General has reasonable cause to believe that an employer is engaged in a pattern or practice of employment in violation of paragraph (1)(A) or (2) of subsection (a), the Attorney General may bring a civil action in the appropriate district court of the United States requesting such relief, including a permanent or temporary injunction, restraining order, or other order against the employer, as the Secretary deems necessary.

(f)

Adjustment for inflation

All penalties and limitations on the recovery of costs and attorney's fees in this section shall be increased every 4 years beginning January 2010 to reflect the percentage increase in the consumer price index for all urban consumers (all items; United States city average) for the 48 month period ending with September of the year preceding the year such adjustment is made. Any adjustment under this subparagraph shall be rounded to the nearest dollar.

(g)

Prohibition of indemnity bonds

(1)

Prohibition

It is unlawful for an employer, in the hiring of an individual, to require the individual to post a bond or security, to pay or agree to pay an amount, or otherwise to provide a financial guaranty or indemnity, against any potential liability arising under this section relating to such hiring of the individual.

(2)

Civil penalty

Any employer which is determined, after notice and opportunity for mitigation of the monetary penalty under subsection (d), to have violated paragraph (1) shall be subject to a civil penalty of $10,000 for each violation and to an administrative order requiring the return of any amounts received in violation of such paragraph to the individual.

(h)

Prohibition on award of government contracts, grants, and agreements

(1)

Employers with no contracts, grants, or agreements

(A)

In general

If an employer who does not hold a Federal contract, grant, or cooperative agreement is determined by the Secretary to be a repeat violator of this section the employer shall be debarred from the receipt of a Federal contract, grant, or cooperative agreement for a period of 5 years. The Secretary or the Attorney General shall advise the Administrator of General Services of such a debarment, and the Administrator of General Services shall list the employer on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs for a period of 5 years.

(B)

Waiver

The Administrator of General Services, in consultation with the Secretary and the Attorney General, may waive operation of this subsection or may limit the duration or scope of the debarment.

(2)

Employers with contracts, grants, or agreements

(A)

In general

An employer who holds a Federal contract, grant, or cooperative agreement and is determined by the Secretary to be a repeat violator of this section or is convicted of a crime under this section, shall be debarred from the receipt of new Federal contracts, grants, or cooperative agreements for a period of 5 years.

(B)

Notice to agencies

Prior to debarring the employer under subparagraph (A), the Secretary, in cooperation with the Administrator of General Services, shall advise any agency or department holding a contract, grant, or cooperative agreement with the employer of the Government's intention to debar the employer from the receipt of new Federal contracts, grants, or cooperative agreements for a period of 5 years.

(C)

Waiver

After consideration of the views of any agency or department that holds a contract, grant, or cooperative agreement with the employer, the Secretary may, in lieu of debarring the employer from the receipt of new Federal contracts, grants, or cooperative agreements for a period of 5 years, waive operation of this subsection, limit the duration or scope of the debarment, or may refer to an appropriate lead agency the decision of whether to debar the employer, for what duration, and under what scope in accordance with the procedures and standards prescribed by the Federal Acquisition Regulation. However, any proposed debarment predicated on an administrative determination of liability for civil penalty by the Secretary or the Attorney General shall not be reviewable in any debarment proceeding.

(D)

Review

The decision of whether to debar or take alternate action under this paragraph shall be reviewable pursuant to section 9, Federal Acquisition Regulation.

(3)

Suspension

Indictments for violations of this section or adequate evidence of actions that could form the basis for debarment under this subsection shall be considered a cause for suspension under the procedures and standards for suspension prescribed by the Federal Acquisition Regulation.

(4)

Repeat violator defined

In this subsection, the term repeat violator means, with respect to an employer, that the employer has violated paragraph (1)(A), (1)(B), or (2) of subsection (a) more than 1 time and that such violations were discovered as a result of more than 1 separate investigation of the employer. A violation of such paragraph (1)(B) that is inadvertent and unrelated to a violation of subsection (a)(1)(A) and (a)(2) may not be considered to be a violation of such paragraph (1)(B) for the purposes of this paragraph.

(i)

Miscellaneous provisions

(1)

Documentation

In providing documentation or endorsement of authorization of aliens (other than aliens lawfully admitted for permanent residence) eligible to be employed in the United States, the Secretary shall provide that any limitations with respect to the period or type of employment or employer shall be conspicuously stated on the documentation or endorsement.

(2)

Preemption

The provisions of this section preempt any State or local law from—

(A)

imposing civil or criminal sanctions upon employers who employ or otherwise do business with unauthorized aliens;

(B)

requiring, authorizing, or permitting the use of a federally mandated employment verification system for any other purpose other than the one mandated in Federal law, including verifying status of renters, determining eligibility for receipt of benefits, enrollment in school, obtaining or retaining a business license or other license provided by the unit of government, or conducting a background check; and

(C)

requiring employers to use an employment verification system, unless otherwise mandated by Federal law, for purposes such as—

(i)

as a condition of receiving a government contract;

(ii)

as a condition of receiving a business license; or

(iii)

as a penalty.

(j)

Definitions

In this section—

(1)

Employer

The term employer means any person or entity, including any entity of the Government of the United States, hiring an individual for employment in the United States.

(2)

Independent contractor

The term independent contractor includes a person who carries on independent business, contracts to do a piece of work according to the person's own means and methods, and are subject to control only as to results. Whether a person is an independent contractor, regardless of any self-designation, will be determined on a case-by-case basis. Factors to be considered in that determination include whether the person—

(A)

supplies the tools or materials;

(B)

makes services available to the general public;

(C)

works for a number of clients at the same time;

(D)

has an opportunity for profit or loss as a result of labor or services provided;

(E)

invests in facilities to carry out the work;

(F)

directs the order or sequence in which the work is to be done; and

(G)

determines the hours during which the work is to be done.

(3)

Secretary

Except as otherwise provided, the term Secretary means the Secretary of Homeland Security.

(4)

Unauthorized alien

The term unauthorized alien means, with respect to the employment of an alien at a particular time, that the alien is not at that time either—

(A)

an alien lawfully admitted for permanent residence; or

(B)

authorized to be so employed by this Act or by the Secretary.

.

(b)

Antifraud measures for Social Security cards

(1)

In general

Section 205(c)(2)(G) of the Social Security Act (42 U.S.C. 405(c)(2)(G)) is amended—

(A)

by inserting (i) after (G);

(B)

by striking banknote paper and inserting durable plastic or similar material; and

(C)

by adding at the end the following new clauses:

(ii)

Each social security card issued under this subparagraph shall include an encrypted machine-readable electronic identification strip which shall be unique to the individual to whom the card is issued. The Commissioner shall develop such electronic identification strip in consultation with the Secretary of Homeland Security, so as to enable employers to use such strip in accordance with section 274A(a)(1)(B) of the Immigration and Nationality Act (8 U.S.C. 1324a(a)(1)(B)) to obtain access to the Electronic Employment Verification System established by subsection (c) of this title.

(iii)

Each social security card issued under this subparagraph shall—

(I)

contain physical security features designed to prevent tampering, counterfeiting, or duplication of the card for fraudulent purposes;

(II)

be consistent with the biometric standards for documents described in section 737 of this Act; and

(III)

contain a disclaimer stating the following: `This card shall not be used for the purpose of identification.

(iv)

The Commissioner shall provide for the issuance (or reissuance) to each individual who—

(I)

has been assigned a Social Security account number under subparagraph (B),

(II)

has attained the minimum age applicable, in the jurisdiction in which such individual engages in employment, for legally engaging in such employment, and

(III)

files application for such card under this clause in such form and manner as shall be prescribed by the Commissioner, a Social Security card which meets the preceding requirements of this subparagraph and which includes a recent digitized photograph of the individual to whom the card is issued.

(v)

The Commissioner shall maintain an ongoing effort to develop measures in relation to the Social Security card and the issuance thereof to preclude fraudulent use thereof.

.

(2)

Sharing of information with the Secretary of Homeland Security

Section 205(c)(2) of such Act is amended by adding at the end the following new subparagraph:

(I)

Upon the issuance of a Social Security account number under subparagraph (B) to any individual or the issuance of a Social Security card under subparagraph (G) to any individual, the Commissioner of Social Security shall transmit to the Secretary of Homeland Security such information received by the Commissioner in the individual's application for such number or such card as such Secretary determines necessary and appropriate for administration of the STRIVE Act of 2007. Such information shall be used solely for inclusion in the Electronic Employment Eligibility Verification System established pursuant to title III of such Act.

.

(3)

Effective Dates

The amendment made by paragraph (1) shall apply with respect to Social Security cards issued 2 years after the date of the enactment of this Act. The amendment made by paragraph (2) shall apply with respect to the issuance of Social Security account numbers and Social Security cards after 2 years after the date of the enactment of this Act.

(c)

Conforming amendments

(1)

Amendments

(A)

Repeal of basic pilot

Sections 401, 402, 403, 404, and 405 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208; 8 U.S.C. 1324a note) are repealed.

(B)

Repeal of reporting requirements

(i)

Report on earnings of aliens not authorized to work

Subsection (c) of section 290 (8 U.S.C. 1360) is repealed.

(ii)

Report on fraudulent use of Social Security account numbers

Subsection (b) of section 414 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208; 8 U.S.C. 1360 note) is repealed.

(C)

Repeal of definition

Paragraph (1)(F) of section 1961 of title 18, United States Code, is repealed.

(2)

Construction

Nothing in this subsection or in subsection (c) of section 274A, as amended by subsection (a), may be construed to limit the authority of the Secretary to allow or continue to allow the participation of employers who participated in the basic pilot program under such sections 401, 402, 403, 404, and 405 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208; 8 U.S.C. 1324a note) in the Electronic Employment Verification System established pursuant to such subsection (d).

(d)

Technical amendments

(1)

Definition of unauthorized alien

Sections 218(i)(1) (8 U.S.C. 1188(i)(1)), 245(c)(8) (8 U.S.C. 1255(c)(8)), 274(a)(3)(B)(i) (8 U.S.C. 1324(a)(3)(B)(i)), and 274B(a)(1) (8 U.S.C. 1324b(a)(1)) are amended by striking 274A(h)(3) and inserting 274A(h).

(2)

Document requirements

Section 274B (8 U.S.C. 1324b) is amended—

(A)

in subsections (a)(6) and (g)(2)(B), by striking 274A(b) and inserting 274A(d); and

(B)

in subsection (g)(2)(B)(ii), by striking 274A(b)(5) and inserting 274A(d)(9).

(e)

Office of Electronic Verification

(1)

In general

The Secretary shall establish the Office of Electronic Verification within the Office of Screening Coordination of the Department.

(2)

Responsibilities

The head of the Office of Electronic Verification shall work with the Commissioner of Social Security—

(A)

to ensure the information maintained in the Electronic Employment Verification System established in subsection (c) of section 274A of the Immigration and Nationality Act, as amended by subsection (a), is updated in a manner that promotes maximum accuracy;

(B)

to ensure a process is provided for correcting erroneous information continued in such System;

(C)

to ensure that the data received from field offices of United States Customs and Border Protection or from other points of contact between aliens and the Department of Homeland Security is registered in all relevant databases;

(D)

to ensure that the data received from field offices of the Social Security Administration and other points of contact between nationals of the United States and the Social Security Administration is registered within all relevant databases;

(E)

to ensure that the Department has a sufficient number of personnel to conduct manual verifications described in paragraph (2)(ii) of such subsection (c);

(F)

to establish and promote telephone help lines accessible to employers and individuals 24-hours a day that provide information regarding the functioning of such System or specific issues related to the issuance of a tentative nonconfirmations issued by the System;

(G)

to establish an outreach and education program to ensure that all new employers are fully informed of their responsibilities under such System;

(H)

to conduct random audits of individual's files in the Government’s database each year to determine accuracy rates and require corrections of errors in a timely manner; and

(I)

to provide to the employer anti-discrimination notices issued by the Office of Special Counsel for Immigration-Related Unfair Employment Practices of the Civil Rights Division of the Department of Justice.

(f)

Requirement for reports

Not later than 2 years after the date of enactment of this Act, and annually thereafter, the Comptroller General of the United States shall submit to the Secretary and to Congress a report on the impact of the Electronic Employment Verification System described in section 274A(c) of the Immigration and Nationality Act, as amended by subsection (a), on employers and employees in the United States. Each such report shall include the following:

(1)

An assessment of the impact of the System on the employment of aliens who are not eligible for employment in the United States, including whether the System has indirectly caused an increase in exploitation of unauthorized workers.

(2)

An assessment of the accuracy of the databases utilized by the System and of the timeliness and accuracy of the responses provided through the System to employers.

(3)

An assessment of the privacy and confidentiality of the System and of the overall security of the System with respect to cybertheft and theft or misuse of private data.

(4)

An assessment of whether the System is being implemented in a nondiscriminatory and nonretaliatory manner.

(5)

An assessment of the most common causes for the erroneous issuance of nonconfirmations by the System and recommendations to correct such causes.

(6)

Recommendations regarding a funding scheme for the maintenance of the System which may include minimal costs to employers or individuals.

(7)

The recommendations of the Comptroller General regarding whether or not the System should be modified prior to further expansion.

(g)

Effective date

The amendments made by subsections (a), (b), and (c) shall take effect on the date that is 180 days after the date of the enactment of this Act.

302.

Clarification of ineligibility for misrepresentation

Section 212(a)(6)(C)(ii)(I) (8 U.S.C. 1182(a)(6)(C)(ii)(I)), is amended by striking citizen and inserting national.

303.

Antidiscrimination protections

(a)

Application of prohibition of discrimination to verification system

Section 274B(a)(1) (8 U.S.C. 1324b(a)(1)) is amended by inserting “, the verification of the individual's eligibility for employment through the Electronic Employment Verification System described in section 274A(c),” after the individual for employment.

(b)

Classes of aliens as protected individuals

Section 274B(a)(3)(B) (8 U.S.C. 1324b(a)(3)(B)) is amended to read as follows—

(B)

is an alien who is—

(i)

lawfully admitted for permanent residence;

(ii)

granted the status of an alien lawfully admitted for temporary residence under section 210(a) or 245A(a);

(iii)

admitted as a refugee under section 207;

(iv)

granted asylum under section 208;

(v)

granted the nonimmigrant status under section 101(a)(15)(H)(ii)(c);

(vi)

granted temporary protected status under section 244; or

(vii)

granted parole under section 212(d)(5).

.

(c)

Requirements for electronic employment verification

Section 274B(a) (8 U.S.C. 1324b(a)) is amended by adding at the end the following:

(7)

Antidiscrimination requirements of the electronic employment verification system

It is an unfair immigration-related employment practice for a person or other entity, in the course of the Electronic Employment Verification System described in section 274A(c)—

(A)

to terminate the employment of an individual due to a tentative nonconfirmation issued by such System, with respect to that individual;

(B)

to use the System for screening of an applicant for employment prior to making the individual an offer of employment;

(C)

to reverify the employment authorization of current employees beyond the time period set out in 274A(c)(2); or

(D)

to use the System selectively to exclude certain individuals from consideration for employment as a result of a perceived likelihood that additional verification will be required, beyond what is required for most job applicants.

.

(d)

Increase in civil money penalties

Section 274B(g)(2) (8 U.S.C. 1324b(g)(2)) is amended—

(1)

in subparagraph (B)(iv)—

(A)

in subclause (I), by striking $250 and not more than $1,000 and inserting $2,000 and not more than $4,000;

(B)

in subclause (II), by striking $2,000 and not more than $5,000 and inserting $4,000 and not more than $10,000;

(C)

in subclause (III), by striking $3,000 and not more than $10,000 and inserting $6,000 and not more than $20,000;

(D)

in subclause (IV), by striking $100 and not more than $1,000 and inserting $500 and not more than $5,000.

(e)

Increased funding of information campaign

Section 274B(l)(3) (8 U.S.C. 1324b(l)(3)) is amended by inserting and an additional $40,000,000 for each of fiscal years 2008 through 2010 before the period at the end.

(f)

Effective date

The amendments made by this title shall take effect on the date of the enactment of this Act and shall apply to violations occurring on or after such date.

304.

Additional protections

Section 274B (8 U.S.C. 1324b) is amended—

(1)

in subsection (a), by amending paragraph (1) to read as follows:

(1)

In general

It is an unfair immigration-related employment practice for a person or other entity to discriminate against any individual (other than an unauthorized alien defined in section 274A(h)(3)) with respect to—

(A)

the hiring, or recruitment or referral for a fee, of the individual for employment or the discharging of the individual from employment—

(i)

because of such individual’s national origin; or

(ii)

in the case of a protected individual, because of such individual’s citizenship status; or

(B)

the compensation, terms, or conditions of the employment of the individual.

;

(2)

in subsection (a)(6), by striking if made for the purpose or with the intent of discriminating against an individual in violation of paragraph (1) and inserting in violation of paragraph (1), subject to additional information and compliance assistance being provided to employers to assist them in complying with the law;

(3)

in subsection (d)—

(A)

in paragraph (1), by striking and, based on such an investigation and subject to paragraph (3), file a complaint before such a judge and inserting Any such investigation shall begin not later than 180 days after the alleged discriminatory act. Any such complaint filed with an administrative law judge shall be filed not later than 1 year after the commencement of the independent investigation.; and

(B)

by striking paragraph (3); and

(4)

in subsection (g)(2)(B)(iii), by inserting , and to provide such other relief as the administrative law judge determines appropriate to make the individual whole before the semicolon at the end.

305.

Additional worksite enforcement and fraud detection agents

(a)

Increase in number of personnel

The Secretary shall, subject to the availability of appropriations for such purpose, annually increase, by not less than 2,200, the number of personnel of the Bureau of Immigration and Customs Enforcement during the 5-year period beginning on the date of the enactment of this Act.

(b)

Use of personnel

The Secretary shall ensure that not less than 25 percent of all the hours expended by personnel of the Bureau of Immigration and Customs Enforcement shall be used to enforce compliance with sections 274A and 274C of the Immigration and Nationality Act (8 U.S.C. 1324a and 1324c).

(c)

Authorization of appropriations

There are authorized to be appropriated to the Secretary for each of the fiscal years 2007 through 2011 such sums as may be necessary to carry out this section.

306.

Amendments to the Social Security Act and the Internal Revenue Code

(a)

Social Security Act

Section 205(c)(2) of the Social Security Act (42 U.S.C. 405(c)(2)) is amended by adding at the end the following new subparagraphs:

(I)
(i)

The Commissioner of Social Security shall, subject to the provisions of title III of the STRIVE Act of 2007, establish a reliable, secure method to provide through the Electronic Employment Verification System established pursuant to section 274A(c) of the Immigration and Nationality Act (referred to in this subparagraph as the System), within the time periods required by such subsection—

(I)

a determination of whether the name, date of birth, employer identification number, and social security account number of an individual provided in an inquiry made to the System by an employer is consistent with such information maintained by the Commissioner in order to confirm the validity of the information provided;

(II)

a determination of the citizenship status associated with such name and social security account number, according to the records maintained by the Commissioner;

(III)

a determination of whether the name and number belongs to an individual who is deceased, according to the records maintained by the Commissioner;

(IV)

a determination of whether the name and number is blocked in accordance with clause (ii); and

(V)

a confirmation or a nonconfirmation described in such subsection (c), in a manner that ensures that other information maintained by the Commissioner is not disclosed or released to employers through the System.

(ii)

The Commissioner of Social Security shall prevent the fraudulent or other misuse of a social security account number by establishing procedures under which an individual who has been assigned a social security account number may block the use of such number under the System and remove such block.

(J)

In assigning social security account numbers to aliens who are authorized to work in the United States under section 218A of the Immigration and Nationality Act, the Commissioner of Social Security shall, to the maximum extent practicable, assign such numbers by employing the enumeration procedure administered jointly by the Commissioner, the Secretary of State, and the Secretary.

.

(b)

Disclosure of certain taxpayer identity information

(1)

In general

Section 6103(l) of the Internal Revenue Code of 1986 is amended by adding at the end the following new paragraph:

(21)

Disclosure of certain taxpayer identity information by Social Security administration to department of homeland security

(A)

In general

From taxpayer identity information which has been disclosed to the Social Security Administration and upon written request by the Secretary of Homeland Security, the Commissioner of Social Security shall disclose directly to officers, employees, and contractors of the Department of Homeland Security the following information:

(i)

Disclosure of employer no-match notices

Taxpayer identity information of each person who has filed an information return required by reason of section 6051 during calendar year 2006, 2007, or 2008 which contains—

(I)

more than 100 names and taxpayer identifying numbers of employees (within the meaning of such section) that did not match the records maintained by the Commissioner of Social Security; or

(II)

more than 10 names of employees (within the meaning of such section) with the same taxpayer identifying number.

(ii)

Disclosure of information regarding use of duplicate employee taxpayer identifying information

Taxpayer identity information of each person who has filed an information return required by reason of section 6051 which the Commissioner of Social Security has reason to believe, based on a comparison with information submitted by the Secretary of Homeland Security, contains evidence of identity fraud due to the multiple use of the same taxpayer identifying number (assigned under section 6109) of an employee (within the meaning of section 6051).

(iii)

Disclosure of information regarding nonparticipating employers

Taxpayer identity information of each person who has filed an information return required by reason of section 6051 which the Commissioner of Social Security has reason to believe, based on a comparison with information submitted by the Secretary of Homeland Security, contains evidence of such person's failure to register and participate in the Electronic Employment Verification System authorized under section 274A(c) of the Immigration and Nationality Act (hereafter in this paragraph referred to as the System).

(iv)

Disclosure of information regarding new employees of nonparticipating employers

Taxpayer identity information of all employees (within the meaning of section 6051) hired after the date a person identified in clause (iii) is required to participate in the System under section 274A(c)(10) of the Immigration and Nationality Act.

(v)

Disclosure of information regarding employees of certain designated employers

Taxpayer identity information of all employees (within the meaning of section 6051) of each person who is required to participate in the System under such section 274A(c)(10) of the Immigration and Nationality Act.

(vi)

Disclosure of new hire taxpayer identity information

Taxpayer identity information of each person participating in the System and taxpayer identity information of all employees (within the meaning of section 6051) of such person hired during the period beginning with the later of—

(I)

the date such person begins to participate in the System; or

(II)

the date of the request immediately preceding the most recent request under this clause,

ending with the date of the most recent request under this clause.
(B)

Restriction on disclosure

The Commissioner of Social Security shall disclose taxpayer identity information under subparagraph (A) only for purposes of, and to the extent necessary in—

(i)

establishing and enforcing employer participation in the System;

(ii)

carrying out, including through civil administrative and civil judicial proceedings, of sections 212, 217, 235, 237, 238, 274A, 274B, and 274C of the Immigration and Nationality Act; and

(iii)

the civil operation of the Alien Terrorist Removal Court.

(C)

Reimbursement

The Commissioner of Social Security shall prescribe a reasonable fee schedule for furnishing taxpayer identity information under this paragraph and collect such fees in advance from the Secretary of Homeland Security.

(D)

Termination

This paragraph shall not apply to any request made after the date which is 3 years after the date of the enactment of this paragraph.

.

(2)

Compliance by DHS contractors with confidentiality safeguards

(A)

In general

Section 6103(p) of such Code is amended by adding at the end the following new paragraph:

(9)

Disclosure to DHS contractors

Notwithstanding any other provision of this section, no return or return information shall be disclosed to any contractor of the Department of Homeland Security unless the Secretary of Homeland Security, to the satisfaction of the Secretary—

(A)

has requirements in effect which require each such contractor which would have access to returns or return information to provide safeguards (within the meaning of paragraph (4)) to protect the confidentiality of such returns or return information;

(B)

agrees to conduct an on-site review every 3 years (mid-point review in the case of contracts or agreements of less than 1 year in duration) of each contractor to determine compliance with such requirements;

(C)

submits the findings of the most recent review conducted under subparagraph (B) to the Secretary as part of the report required by paragraph (4)(E); and

(D)

certifies to the Secretary for the most recent annual period that such contractor is in compliance with all such requirements.

The certification required by subparagraph (D) shall include the name and address of each contractor, a description of the contract or agreement with such contractor, and the duration of such contract or agreement.

.

(3)

Conforming amendments

(A)

Section 6103(a)(3) of such Code is amended by striking or (20) and inserting (20), or (21).

(B)

Section 6103(p)(3)(A) of such Code is amended by adding at the end the following new sentence: The Commissioner of Social Security shall provide to the Secretary such information as the Secretary may require in carrying out this paragraph with respect to return information inspected or disclosed under the authority of subsection (l)(21)..

(C)

Section 6103(p)(4) of such Code is amended—

(i)

by striking or (17) both places it appears and inserting (17), or (21); and

(ii)

by striking or (20) each place it appears and inserting (20), or (21).

(D)

Section 6103(p)(8)(B) of such Code is amended by inserting or paragraph (9) after subparagraph (A).

(E)

Section 7213(a)(2) of such Code is amended by striking or (20) and inserting (20), or (21).

(c)

Authorization of appropriations

(1)

In general

There are authorized to be appropriated to the Secretary such sums as are necessary to carry out the amendments made by this section.

(2)

Limitation on verification responsibilities of Commissioner of Social Security

The Commissioner of Social Security is authorized to perform activities with respect to carrying out the Commissioner's responsibilities in this title or the amendments made by this title, but only to the extent the Secretary has provided, in advance, funds to cover the Commissioner's full costs in carrying out such responsibilities. In no case shall funds from the Federal Old-Age and Survivors Insurance Trust Fund or the Federal Disability Insurance Trust Fund be used to carry out such responsibilities.

(d)

Effective dates

(1)

Social Security Act

The amendments made by subsection (a) shall take effect on the date that is 180 days after the date of the enactment of this Act.

(2)

Internal Revenue Code

(A)

In general

The amendments made by subsection (b) shall apply to disclosures made after the date of the enactment of this Act.

(B)

Certifications

The first certification under section 6103(p)(9)(D) of the Internal Revenue Code of 1986, as added by subsection (b)(2), shall be made with respect to calendar year 2007.

IV

New worker program

401.

Nonimmigrant worker

Section 101(a)(15)(H) (8 U.S.C. 1101(a)(15)(H)) is amended to read as follows:

(H)

an alien—

(i)
(b)

subject to section 212(j)(2)—

(aa)

who is coming temporarily to the United States to perform services (other than services described in clause (ii)(a) or subparagraph (O) or (P)) in a specialty occupation described in section 214(i)(1) or as a fashion model;

(bb)

who meets the requirements for the occupation specified in section 214(i)(2) or, in the case of a fashion model, is of distinguished merit and ability; and

(cc)

with respect to whom the Secretary of Labor determines and certifies to the Secretary of Homeland Security that the intending employer has filed an application with the Secretary in accordance with section 212(n)(1);

(b1)
(aa)

who is entitled to enter the United States under the provisions of an agreement listed in section 214(g)(8)(A);

(bb)

who is engaged in a specialty occupation described in section 214(i)(3); and

(cc)

with respect to whom the Secretary of Labor determines and certifies to the Secretary of Homeland Security and the Secretary of State that the intending employer has filed an attestation with the Secretary of Labor in accordance with section 212(t)(1); or

(c)
(aa)

who is coming temporarily to the United States to perform services as a registered nurse;

(bb)

who meets the qualifications described in section 212(m)(1); and

(cc)

with respect to whom the Secretary of Labor determines and certifies to the Secretary of Homeland Security that an unexpired attestation is on file and in effect under section 212(m)(2) for the facility (as defined in section 212(m)(6)) for which the alien will perform the services; or

(ii)
(a)

who—

(aa)

has a residence in a foreign country which the alien has no intention of abandoning; and

(bb)

is coming temporarily to the United States to perform agricultural labor or services (as defined by the Secretary of Labor), including agricultural labor (as defined in section 3121(g) of the Internal Revenue Code of 1986), agriculture (as defined in section 3(f) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(f))), and the pressing of apples for cider on a farm, of a temporary or seasonal nature;

(b)

who—

(aa)

has a residence in a foreign country which the alien has no intention of abandoning;

(bb)

is coming temporarily to the United States to perform nonagricultural work or services of a temporary or seasonal nature (if unemployed persons capable of performing such work or services cannot be found in the United States), excluding medical school graduates coming to the United States to perform services as members of the medical profession; or

(c)

who—

(aa)

is coming temporarily to the United States to initially perform temporary labor or services other than the labor or services described in clause (i)(b), (i)(b1), (i)(c), (ii)(a), or (iii), subparagraph (D), (E), (I), (L), (O), (P), or (R), or section 214(e) (if United States workers who are able, willing, and qualified to perform such labor or services cannot be found in the United States); and

(bb)

meets the requirements of section 218A, including the filing of a petition under such section on behalf of the alien;

(iii)

who—

(a)

has a residence in a foreign country which the alien has no intention of abandoning; and

(b)

is coming temporarily to the United States as a trainee (other than to receive graduate medical education or training) in a training program that is not designed primarily to provide productive employment; or

(iv)

who—

(a)

is the spouse or a minor child of an alien described in this subparagraph; and

(b)

is accompanying or following to join such alien.

.

402.

Admission of nonimmigrant workers

(a)

New workers

Chapter 2 of title II (8 U.S.C. 1181 et seq.) is amended by inserting after section 218 the following:

218A.

Admission of H–2C nonimmigrants

(a)

Authorization

The Secretary of State may grant a temporary visa to an H–2C nonimmigrant who demonstrates an intent to perform labor or services in the United States (other than the labor or services described in clause (i)(b), (i)(b1), (i)(c), (ii)(a), or (iii) of section 101(a)(15)(H), subparagraph (D), (E), (I), (L), (O), (P), or (R) of section 101(a)(15), or section 214(e) (if United States workers who are able, willing, and qualified to perform such labor or services cannot be found in the United States).

(b)

Requirements for admission

An alien shall be eligible for H–2C nonimmigrant status if the alien meets the following requirements:

(1)

Eligibility to work

The alien shall establish that the alien is capable of performing the labor or services required for an occupation described in section 101(a)(15)(H)(ii)(c).

(2)

Evidence of employment offer

The alien’s evidence of employment shall be provided in accordance with the requirements issued by the Secretary of State, in consultation with the Secretary of Labor. In carrying out this paragraph, the Secretary may consider evidence from employers, employer associations, and labor representatives.

(3)

Fee

The alien shall pay a $500 visa issuance fee in addition to the cost of processing and adjudicating such application. Nothing in this paragraph shall be construed to affect consular procedures for charging reciprocal fees.

(4)

Medical examination

The alien shall undergo a medical examination (including a determination of immunization status), at the alien’s expense, that conforms to generally accepted standards of medical practice.

(5)

Application content and waiver

(A)

Application form

The alien shall submit to the Secretary of State a completed application, which contains evidence that the requirements under paragraphs (1) and (2) have been met.

(B)

Content

In addition to any other information that the Secretary requires to determine an alien’s eligibility for H–2C nonimmigrant status, the Secretary of State shall require an alien to provide information concerning the alien’s—

(i)

physical and mental health;

(ii)

criminal history and gang membership;

(iii)

immigration history; and

(iv)

involvement with groups or individuals that have engaged in terrorism, genocide, persecution, or who seek the overthrow of the United States Government.

(C)

Knowledge

The alien shall include with the application submitted under this paragraph a signed certification in which the alien certifies that—

(i)

the alien has read and understands all of the questions and statements on the application form;

(ii)

the alien certifies under penalty of perjury under the laws of the United States that the application, and any evidence submitted with it, are all true and correct; and

(iii)

the applicant authorizes the release of any information contained in the application and any attached evidence for law enforcement purposes.

(c)

Grounds of inadmissibility

(1)

In general

In determining an alien’s admissibility as an H–2C nonimmigrant—

(A)

paragraphs (5), (6) (except subparagraph (E)), (7), (9), and (10)(B) of section 212(a) may not apply with respect to conduct that occurred before the effective date of the STRIVE Act;

(B)

the Secretary of Homeland Security may not waive the application of—

(i)

subparagraph (A), (B), (C), (D)(ii), (E), (G), (H), or (I) of section 212(a)(2);

(ii)

section 212(a)(3); or

(iii)

subparagraph (A), (C) or (D) of section 212(a)(10);

(C)

the Secretary of State may waive the application of any provision of section 212(a) not listed in subparagraph (B) on behalf of an individual alien—

(i)

for humanitarian purposes;

(ii)

to ensure family unity; or

(iii)

if such a waiver is otherwise in the public interest;

(D)

nothing in this paragraph shall be construed as affecting the authority of the Secretary other than under this paragraph to waive the provisions of section 212(a).

(2)

Renewal of authorized admission and subsequent admissions

An alien seeking renewal of authorized admission or subsequent admission as an H–2C nonimmigrant shall establish that the alien is not inadmissible under section 212(a).

(3)

Background checks

The Secretary of Homeland Security shall not admit, and the Secretary of State shall not issue a visa to, an alien seeking H–2C nonimmigrant status unless all appropriate background checks have been completed.

(d)

Period of authorized admission

(1)

Authorized period

The initial period of authorized admission as an H–2C nonimmigrant shall be 3 years.

(2)

Renewal

Before the expiration of the initial period under paragraph (1), an H–2C nonimmigrant may submit an application to the Secretary of Homeland Security to extend H–2C nonimmigrant status for 1 additional 3-year period. The Secretary may not require an applicant under this paragraph to depart the United States as a condition for granting such extension.

(3)

International commuters

An alien who maintains actual residence and place of abode outside the United States and commutes into the United States to work as an H–2C nonimmigrant, is not subject to the time limitations under paragraphs (1) and (2).

(4)

Loss of employment

(A)

In general

(i)

Period of unemployment

Subject to clause (ii) and subsection (c), the period of authorized admission of an H–2C nonimmigrant shall terminate if the alien is unemployed for 60 or more consecutive days.

(ii)

Exception

The period of authorized admission of an H–2C nonimmigrant shall not terminate if the alien is unemployed for 60 or more consecutive days if the alien submits documentation to the Secretary of Homeland Security that establishes that such unemployment was caused by—

(I)

a period of physical or mental disability of the alien or the spouse, son, daughter, or parent (as defined in section 101 of the Family and Medical Leave Act of 1993 (29 U.S.C. 2611)) of the alien;

(II)

a period of vacation, medical leave, maternity leave, or similar leave from employment authorized by employer policy, State law, or Federal law; or

(III)

any other period of temporary unemployment that is the direct result of a major disaster or emergency (as defined under section 532 of the STRIVE Act.

(B)

Return to foreign residence

Any alien whose period of authorized admission terminates under subparagraph (A) shall be required to leave the United States.

(C)

Period of visa validity

Any alien, whose period of authorized admission terminates under subparagraph (A), who leaves the United States under subparagraph (B), may reenter the United States as an H–2C nonimmigrant to work for an employer, if the alien has complied with the requirements of subsection (b).

(5)

Visits outside the united states

(A)

In general

Under regulations established by the Secretary of Homeland Security, an H–2C nonimmigrant—

(i)

may travel outside of the United States; and

(ii)

may be readmitted without having to obtain a new visa if the period of authorized admission has not expired.

(B)

Effect on period of authorized admission

Time spent outside the United States under subparagraph (A) shall not extend the period of authorized admission in the United States.

(6)

Bars to extension or admission

An alien may not be granted H–2C nonimmigrant status, or an extension of such status, if—

(A)

the alien has violated any material term or condition of such status granted previously, including failure to comply with the change of address reporting requirements under section 265;

(B)

the alien is inadmissible as a nonimmigrant; or

(C)

the granting of such status or extension of such status would allow the alien to exceed 6 years as an H–2C nonimmigrant, unless the alien has resided and been physically present outside the United States for at least 1 year after the expiration of such H–2C nonimmigrant status.

(e)

Evidence of nonimmigrant status

Each H–2C nonimmigrant shall be issued documentary evidence of nonimmigrant status, which—

(1)

shall be machine-readable, tamper-resistant, and allow for biometric authentication;

(2)

shall, during the alien’s authorized period of admission under subsection (f), serve as a valid entry document for the purpose of applying for admission to the United States—

(A)

instead of a passport and visa if the alien—

(i)

is a national of a foreign territory contiguous to the United States; and

(ii)

is applying for admission at a land border port of entry; and

(B)

in conjunction with a valid passport, if the alien is applying for admission at an air or sea port of entry;

(3)

may be accepted during the period of its validity by an employer as evidence of employment authorization and identity under section 274A(b)(1)(B); and

(4)

shall be issued to the H–2C nonimmigrant by the Secretary of Homeland Security promptly after final adjudication of such status or, at the discretion of the Secretary of Homeland Security, may be issued by the Secretary of State at a consulate instead of a visa.

(f)

Penalties for failure To depart

If an H–2C nonimmigrant fails to depart the United States by the date that the alien’s authorized admission as an H–2C nonimmigrant concludes, the visa of the alien shall be void under section 222(g)(1) and the alien shall be ineligible to be readmitted to the United States under section 222(g)(2). The alien may be removed if found to be within 1 or more of the classes of deportable aliens described in section 237.

(g)

Penalty for illegal entry or overstay

Any alien who unlawfully enters, attempts to enter, or crosses the border after the date of the enactment of this section, and is physically present in the United States after such date in violation of the immigration laws of the United States, may not receive, for a period of 10 years—

(1)

any relief under section 240A(a), 240A(b)(1), or 240B; or

(2)

nonimmigrant status under section 101(a)(15) (except subparagraphs (T) and (U)).

(h)

Portability

A nonimmigrant alien described in this section, who was previously issued a visa or otherwise provided H–2C nonimmigrant status, may accept a new offer of employment with a subsequent employer, if—

(1)

the employer complies with section 218B; and

(2)

the alien, after lawful admission to the United States, did not work without authorization.

(i)

Change of address

An H–2C nonimmigrant shall comply with the change of address reporting requirements under section 265 through electronic or paper notification.

(j)

Collection of fees

All fees other than the application filing fee collected under this section shall be deposited in the Treasury in accordance with section 286(w).

.

(b)

Clerical amendment

The table of contents Immigration and Nationality Act (8 U.S.C. 1101 et seq.) is amended by inserting after the item relating to section 218 the following:

Sec. 218A. Admission of H–2C nonimmigrants.

.

403.

Employer obligations

(a)

In general

Title II (8 U.S.C. 1201 et seq.) is amended by inserting after section 218A, as added by section 402, the following:

218B.

Employer obligations

(a)

General requirements

Each employer who employs an H–2C nonimmigrant shall—

(1)

file a petition in accordance with subsection (b); and

(2)

be required to pay—

(A)

an application filing fee for each alien, based on the cost of carrying out the processing duties under this subsection; and

(B)

a secondary fee, to be deposited in the Treasury in accordance with section 286(w), of—

(i)

$250, in the case of an employer employing 25 employees or less;

(ii)

$500, in the case of an employer employing between 26 and 150 employees;

(iii)

$750, in the case of an employer employing between 151 and 500 employees; or

(iv)

$1,000, in the case of an employer employing more than 500 employees. pay the appropriate fee.

(b)

Required procedure

Except where the Secretary of Labor has determined that there is a shortage of United States workers in the occupation and area of intended employment to which the H–2C nonimmigrant is sought, each employer of H–2C nonimmigrants shall comply with the following requirements:

(1)

Efforts to recruit united states workers

During the period beginning not later than 90 days before the date on which a petition is filed under subsection (a)(1), and ending on the date that is 14 days before to such filing date, the employer involved shall recruit United States workers for the position for which the H–2C nonimmigrant is sought under the petition, by—

(A)

submitting a copy of the job opportunity, including a description of the wages and other terms and conditions of employment and the minimum education, training, experience and other requirements of the job, to the State Employment Service Agency that serves the area of employment in the State in which the employer is located;

(B)

authorizing the employment service agency of the State to post the job opportunity on the Internet website established under section 405 of the STRIVE Act, with local job banks, and with unemployment agencies and other labor referral and recruitment sources pertinent to the job involved;

(C)

authorizing the employment service agency of the State to notify—

(i)

labor organizations in the State in which the job is located; and

(ii)

if applicable, the office of the local union which represents the employees in the same or substantially equivalent job classification of the job opportunity;

(D)

posting the availability of the job opportunity for which the employer is seeking a worker in conspicuous locations at the place of employment for all employees to see;

(E)

advertising the availability of the job opportunity for which the employer is seeking a worker in a publication with the highest circulation in the labor market that is likely to be patronized by a potential worker for not fewer than 10 consecutive days; and

(F)

based on recommendations by the local job service, advertising the availability of the job opportunity in professional, trade, or ethnic publications that are likely to be patronized by a potential worker.

(2)

Efforts to employ united states workers

An employer that seeks to employ an H–2C nonimmigrant shall first offer the job to any eligible United States worker who applies, is qualified for the job and is available at the time of need, notwithstanding any other valid employment criteria.

(c)

Petition

A petition to hire an H–2C nonimmigrant under this section shall be filed with the Secretary of Labor and shall include an attestation by the employer of the following:

(1)

Protection of united states workers

The employment of an H–2C nonimmigrant—

(A)

will not adversely affect the wages and working conditions of workers in the United States similarly employed; and

(B)

did not and will not cause the separation from employment of a United States worker employed by the employer within the 180-day period beginning 90 days before the date on which the petition is filed.

(2)

Wages

(A)

In general

The H–2C nonimmigrant will be paid not less than the greater of—

(i)

the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question; or

(ii)

the prevailing wage level for the occupational classification in the area of employment, taking into account experience and skill levels of employees.

(B)

Calculation

The wage levels under subparagraph (A) shall be calculated based on the best information available at the time of the filing of the application.

(C)

Prevailing wage level

For purposes of subparagraph (A)(ii), the prevailing wage level shall be determined in accordance as follows:

(i)

If the job opportunity is covered by a collective bargaining agreement between a union and the employer, the prevailing wage shall be the wage rate set forth in the collective bargaining agreement.

(ii)

If the job opportunity is not covered by such an agreement and it is on a project that is covered by a wage determination under a provision of subchapter IV of chapter 31 of title 40, United States Code, or the Service Contract Act of 1965 (41 U.S.C. 351 et seq.), the prevailing wage level shall be the appropriate statutory wage.

(iii)
(I)

If the job opportunity is not covered by such an agreement and it is not on a project that is covered by a wage determination under a provision of subchapter IV of chapter 31 of title 40, United States Code, or the Service Contract Act of 1965 (41 U.S.C. 351 et seq.), the prevailing wage level shall be based on published wage data for the occupation from the Bureau of Labor Statistics, including the Occupational Employment Statistics survey, Current Employment Statistics data, National Compensation Survey, and Occupational Employment Projections program. If the Bureau of Labor Statistics does not have wage data applicable to such occupation, the employer may base the prevailing wage level on another wage survey approved by the Secretary of Labor.

(II)

The Secretary shall promulgate regulations applicable to approval of such other wage surveys that require, among other things, that the Bureau of Labor Statistics determine such surveys are statistically viable.

(3)

Working conditions

All workers in the occupation at the place of employment at which the H–2C nonimmigrant will be employed will be provided the working conditions and benefits that are normal to workers similarly employed in the area of intended employment.

(4)

Labor dispute

There is not a strike, lockout, or work stoppage in the course of a labor dispute in the occupation at the place of employment at which the H–2C nonimmigrant will be employed. If such strike, lockout, or work stoppage occurs following submission of the petition, the employer will provide notification in accordance with regulations promulgated by the Secretary of Labor.

(5)

Provision of insurance

If the position for which the H–2C nonimmigrant is sought is not covered by the State workers’ compensation law, the employer will provide, at no cost to the H–2C nonimmigrant, insurance covering injury and disease arising out of, and in the course of, the worker’s employment, which will provide benefits at least equal to those provided under the State workers’ compensation law for comparable employment.

(6)

Notice to employees

(A)

In general

The employer has provided notice of the filing of the petition to the bargaining representative of the employer’s employees in the occupational classification and area of employment for which the H–2C nonimmigrant is sought.

(B)

No bargaining representative

If there is no such bargaining representative, the employer has—

(i)

posted a notice of the filing of the petition in a conspicuous location at the place or places of employment for which the H–2C nonimmigrant is sought; or

(ii)

electronically disseminated such a notice to the employer’s employees in the occupational classification for which the H–2C nonimmigrant is sought.

(7)

Recruitment

Except where the Secretary of Labor has determined that there is a shortage of United States workers in the occupation and area of intended employment for which the H–2C nonimmigrant is sought—

(A)

there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services involved in the petition; and

(B)

good faith efforts have been taken to recruit United States workers, in accordance with regulations promulgated by the Secretary of Labor, which efforts included—

(i)

the completion of recruitment during the period beginning on the date that is 90 days before the date on which the petition was filed with the Department of Homeland Security and ending on the date that is 14 days before such filing date; and

(ii)

the actual wage paid by the employer for the occupation in the areas of intended employment was used in conducting recruitment.

(8)

Ineligibility

The employer is not currently ineligible from using the H–2C nonimmigrant program described in this section.

(9)

Bonafide offer of employment

The job for which the H–2C nonimmigrant is sought is a bona fide job—

(A)

for which the employer needs labor or services;

(B)

which has been and is clearly open to any United States worker; and

(C)

for which the employer will be able to place the H–2C nonimmigrant on the payroll.

(10)

Public availability and records retention

A copy of each petition filed under this section and documentation supporting each attestation, in accordance with regulations promulgated by the Secretary of Labor, will—

(A)

be provided to every H–2C nonimmigrant employed under the petition;

(B)

be made available for public examination at the employer’s place of business or work site;

(C)

be made available to the Secretary of Labor during any audit; and

(D)

remain available for examination for 5 years after the date on which the petition is filed.

(11)

Notification upon separation from or transfer of employment

The employer will notify the Secretary of Labor and the Secretary of Homeland Security of an H–2C nonimmigrant’s separation from employment or transfer to another employer not more than 3 business days after the date of such separation or transfer, in accordance with regulations promulgated by the Secretary of Homeland Security.

(12)

Actual need for labor or services

The petition was filed not more than 60 days before the date on which the employer needed labor or services for which the H–2C nonimmigrant is sought.

(d)

Audit of attestations

(1)

Referrals by secretary of homeland security

The Secretary of Homeland Security shall refer all approved petitions for H–2C nonimmigrants to the Secretary of Labor for potential audit.

(2)

Audits authorized

The Secretary of Labor may audit any approved petition referred pursuant to paragraph (1), in accordance with regulations promulgated by the Secretary of Labor.

(e)

Ineligible employers

(1)

In general

The Secretary of Labor shall not approve an employer’s petitions, applications, certifications, or attestations under any immigrant or nonimmigrant program if the Secretary of Labor determines, after notice and an opportunity for a hearing, that the employer submitting such documents—

(A)

has, with respect to the attestations required under subsection (b)—

(i)

misrepresented a material fact;

(ii)

made a fraudulent statement; or

(iii)

failed to comply with the terms of such attestations; or

(B)

failed to cooperate in the audit process in accordance with regulations promulgated by the Secretary of Labor.

(2)

Length of ineligibility

An employer described in paragraph (1) shall be ineligible to participate in the labor certification programs of the Secretary of Labor for not less than the time period determined by the Secretary, not to exceed 3 years.

(3)

Employers in high unemployment areas

The Secretary of Labor may not approve any employer’s petition under subsection (b) if the work to be performed by the H–2C nonimmigrant is not agriculture based and is located in a metropolitan or micropolitan statistical area (as defined by the Office of Management and Budget) in which the unemployment rate for workers who have not completed any education beyond a high school diploma during the most recently completed 6-month period averaged more than 9.0 percent.

(f)

Regulation of foreign labor contractors

(1)

Coverage

Notwithstanding any other provision of law—

(A)

an H–2C nonimmigrant is prohibited from being treated as an independent contractor; and

(B)

no person may treat an H–2C nonimmigrant as an independent contractor.

(2)

Applicability of laws

An H–2C nonimmigrant shall not be denied any right or any remedy under Federal, State, or local labor or employment law that would be applicable to a United States worker employed in a similar position with the employer because of the alien’s status as a nonimmigrant worker.

(3)

Tax responsibilities

With respect to each employed H–2C nonimmigrant, an employer shall comply with all applicable Federal, State, and local tax and revenue laws.

(g)

Whistleblower protection

(1)

Prohibited activities

It shall be unlawful for an employer or a labor contractor of an H–2C nonimmigrant to intimidate, threaten, restrain, coerce, retaliate, discharge, or in any other manner, discriminate against an employee or former employee because the employee or former employee—

(A)

discloses information to the employer or any other person that the employee or former employee reasonably believes demonstrates a violation of this Act, the STRIVE Act, or any other Federal labor or employment law; or