II
Calendar No. 946
110th CONGRESS
2d Session
S. 3061
IN THE SENATE OF THE UNITED STATES
May 22, 2008
Mr. Biden (for himself, Mr. Brownback, Mr. Hatch, Mr. Cardin, Mr. Specter, Mr. Durbin, and Mrs. Feinstein) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
September 8, 2008
Reported by Mr. Leahy, with amendments
Insert the parts printed in italic
A BILL
To authorize appropriations for fiscal years 2008 through 2011 for the Trafficking Victims Protection Act of 2000, to enhance measures to combat trafficking in persons, and for other purposes.
Short title; table of contents
Short title
This Act may be cited as the William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008
.
Table of contents
The table of contents for this Act is as follows:
Sec. 1. Short title; table of contents.
TITLE I—Combating international trafficking in persons
Sec. 101. Interagency Task Force to Monitor and Combat Trafficking.
Sec. 102. Office to Monitor and Combat Trafficking.
Sec. 103. Assistance for victims of trafficking in other countries.
Sec. 104. Increasing effectiveness of anti-trafficking programs.
Sec. 105. Minimum standards for the elimination of trafficking.
Sec. 106. Actions against governments failing to meet minimum standards.
Sec. 107. Research on domestic and international trafficking in persons.
Sec. 108. Presidential Award for Extraordinary Efforts to Combat Trafficking in Persons.
Sec. 109. Report on activities of the Department of Labor to monitor and combat forced labor and child labor.
TITLE II—Combating trafficking in persons in the United States
Subtitle A—Ensuring availability of possible witnesses and informants
Sec. 201. Protecting trafficking victims against retaliation.
Sec. 202. Information for work-based nonimmigrants on legal rights and resources.
Sec. 203. Domestic worker protections.
Sec. 204. Relief for certain victims pending actions on petitions and applications for relief.
Sec. 205. Expansion of authority to permit continued presence in the United States.
Sec. 206. Implementation of Trafficking Victims Protection Reauthorization Act of 2005.
Subtitle B—Assistance for trafficking victims
Sec. 211. Assistance for certain nonimmigrant status applicants.
Sec. 212. Interim assistance for child victims of trafficking.
Sec. 213. Ensuring assistance for all victims of trafficking in persons.
Subtitle C—Penalties against traffickers and other crimes
Sec. 221. Restitution of forfeited assets; enhancement of civil action.
Sec. 222. Enhancing trafficking offenses.
Sec. 223. Jurisdiction in certain trafficking offenses.
Sec. 224. Sex tourism and removal of sex offenders.
Subtitle D—Activities of the United States Government
Sec. 231. Annual report by the Attorney General.
Sec. 232. Defense contract audit agency audit.
Sec. 233. Senior Policy Operating Group.
Sec. 234. Preventing United States travel by traffickers.
Sec. 235. Enhancing efforts to combat the trafficking of children.
Sec. 236. Temporary increase in fee for certain consular services.
TITLE III—Authorizations of appropriations
Sec. 301. Trafficking Victims Protection Act of 2000.
Sec. 302. Trafficking Victims Protection Reauthorization Act of 2005.
Sec. 303. Rule of construction.
Sec. 304. Technical amendments.
TITLE IV—Child Soldiers Prevention and Accountability
Sec. 401. Short title.
Sec. 402. Definitions.
Sec. 403. Prohibition.
Sec. 404. Reports.
Sec. 405. Training for foreign service officers.
Sec. 406. Accountability for the recruitment and use of child soldiers.
Sec. 407. Effective date; applicability.
Combating international trafficking in persons
Interagency Task Force to Monitor and Combat Trafficking
Section 105(b) of the Trafficking Victims
Protection Act of 2000 (22 U.S.C. 7103(b)) is amended by inserting the
Secretary of Education,
after the Secretary of Homeland
Security,
.
Office to Monitor and Combat Trafficking
Section 105(e) of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7103(e)) is amended to read as follows:
Office To monitor and combat trafficking
Establishment
The Secretary of State shall establish within the Department of State an Office to Monitor and Combat Trafficking. The Office shall be headed by a Director, with the rank of Ambassador at Large, who shall be appointed by the President, by and with the advice and consent of the Senate.
Responsibilities
The Director shall have the following responsibilities:
The Director shall have primary responsibility for assisting the Secretary of State in carrying out the purposes of this division, shall provide assistance to the Task Force, and may have additional responsibilities as determined by the Secretary of State.
The Director shall consult with nongovernmental organizations and multilateral organizations, and with trafficking victims or other affected persons. The Director may collect evidence in public hearings or by other means if such collection does not disrupt an ongoing criminal investigation.
The Director, in coordination and cooperation with other officials at the Department of State involved in corporate responsibility, the Deputy Under Secretary for International Affairs of the Department of Labor, and other relevant officials of the United States Government, shall promote, build, and sustain partnerships between the United States Government and private entities (including foundations, universities, corporations, community-based organizations, and other nongovernmental organizations) to ensure that—
United States citizens do not use any item, product, or material produced or extracted with the use of labor from victims of severe forms of trafficking; and
such entities do not contribute to trafficking in persons involving sexual exploitation.
Coordination
Any trafficking in persons programs of the Department of State or the United States Agency for International Development that are not centrally controlled by the Director of the Office to Monitor and Combat Trafficking shall be carried out with concurrence of the Director.
.
Assistance for victims of trafficking in other countries
Section 107(a) of Trafficking Victims Protection Act of 2000 (22 U.S.C. 7105(a)) is amended—
in paragraph (1)—
in the second
sentence, by inserting at the end before the period the following: , and
shall be carried out in a manner which takes into account the cross-border,
regional, and transnational aspects of trafficking in persons
;
and
by adding at the end the following:
In cooperation and coordination with relevant organizations, such as the United Nations High Commissioner for Refugees, the International Organization for Migration, and private nongovernmental organizations that contract with, and receive grants from, the United States Government to assist refugees and internally displaced persons, support for—
increased protections for refugees and internally displaced persons, including outreach and education efforts to prevent such refugees and internally displaced persons from being exploited by traffickers; and
performance of best interest determinations for unaccompanied and separated children who come to the attention of the United Nations High Commissioner for Refugees, its partner organizations, or any organization that contracts with the Department of State in order to identify child trafficking victims and to assist their safe integration, reintegration, and resettlement.
; and
in paragraph (2), by adding at the end the
following: In carrying out this paragraph, the Secretary and the
Administrator shall take all appropriate steps to ensure that cooperative
efforts among foreign countries are undertaken on a regional
basis.
.
Increasing effectiveness of anti-trafficking programs
The Trafficking Victims Protection Act of 2000 (22 U.S.C. 7101 et seq.) is amended by inserting after section 107 the following:
Increasing effectiveness of anti-trafficking programs
Awarding of Grants, Cooperative Agreements, and Contracts
In administering funds made available to carry out this Act in the United States and abroad—
solicitations of grants, cooperative agreements, and contracts for such programs shall be made publicly available;
grants, cooperative agreements, and contracts shall be subject to full and open competition, in accordance with applicable laws;
grants shall be evaluated by a review panel that is composed of Federal experts and nongovernmental experts, as appropriate; and
the internal department or agency review process for such grants, cooperative agreements, and contracts shall not be subject to ad hoc or intermittent review or influence by individuals or organizations outside the United States Government except as provided under paragraphs (1) through (3).
Eligibility
In general
An applicant desiring a grant, contract, or cooperative agreement under this Act shall certify that persons or entities providing legal services, social services, health services, or other assistance have completed, or will complete, training in connection with severe forms of trafficking in persons.
Disclosure
If appropriate, applicants should indicate collaboration with nongovernmental organizations, including organizations with expertise in severe forms of trafficking and forced labor.
Evaluation of Anti-Trafficking Programs
In general
The President shall establish a system to evaluate the effectiveness and efficiency of the assistance provided under anti-trafficking programs established under this Act on a program-by-program basis in order to maximize the long-term sustainable development impact of such assistance.
Requirements
In carrying out paragraph (1), the President shall—
establish performance goals for the assistance described in paragraph (1), expressed in an objective and quantifiable form, to the extent practicable;
ensure that performance indicators are used for programs authorized under this Act to measure and assess the achievement of the performance goals described in subparagraph (A);
provide a basis for recommendations for adjustments to the assistance described in paragraph (1) to enhance the impact of such assistance; and
ensure that evaluations, to the extent practicable, are conducted by subject matter experts in and outside the United States Government.
Targeted Use of Anti-Trafficking Programs
The Director of the Office to Monitor and Combat Trafficking shall provide assistance to foreign countries and nongovernmental organizations receiving assistance under this division based on the priorities and country assessments contained in the most recent report submitted by the Secretary of State to Congress pursuant to section 110(b) of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008.
Consistency With Other Programs
The President shall ensure that the design, monitoring, and evaluation of United States assistance programs for emergency relief, development, and poverty alleviation under part I and chapter 4 of part II of the Foreign Assistance Act of 1961 (22 U.S.C. 2151 et seq. and 2346 et seq.) and other similar United States assistance programs are consistent with United States policies and other United States programs relating to combating trafficking in persons.
Authorization of appropriations
For each of the fiscal years 2008 through 2011, not more than 5 percent of the amounts made available to carry out this division may be used to carry out this section, including—
evaluations of promising anti-trafficking programs and projects funded by the disbursing agency pursuant to this Act; and
evaluations of emerging problems or global trends.
.
Minimum standards for the elimination of trafficking
Criteria
Section 108(b) of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7106(b)) is amended—
in paragraph (1)—
in the first
sentence, by inserting at the end before the period the following: ,
including in all appropriate cases requiring incarceration of individuals
convicted of such acts
; and
by inserting after
the first sentence the following new sentence: For purposes of the
preceding sentence, suspended or significantly-reduced sentences for
convictions of principal actors in cases of severe forms of trafficking in
persons shall be considered, on a case-by-case basis, whether to be considered
an indicator of serious and sustained efforts to eliminate severe forms of
trafficking in persons.
; and
in paragraph (2),
by inserting at the end before the period the following: , including by
providing training to law enforcement and immigration officials in the
identification and treatment of trafficking victims using approaches that focus
on the needs of the victims
.
Actions against governments failing to meet minimum standards
Countries on special watch list relating to trafficking in persons for 3 consecutive years
Section 110(b)(3) of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7107(b)(3)) is amended by adding at the end the following:
Countries on special watch list for 3 consecutive years
In general
Except as provided under clause (ii), a country that is included on the special watch list described in subparagraph (A) for 3 consecutive years after the date of the enactment of this subparagraph, shall be included on the list of countries described in paragraph (1)(C).
Exercise of waiver authority
The President may waive the application of clause (i) for up to 1 year if the President determines and certifies to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives that such a waiver would promote the purposes of this Act or is otherwise in the national interest of the United States.
.
Clarification of measures against certain foreign countries
Section 110(d)(1)(A)(ii) of such Act is
amended by inserting such assistance to the government of the country
for the subsequent fiscal year and will not provide
after will
not provide
.
Translation of Trafficking in Persons Report
The Secretary of State shall—
timely translate the annual report submitted under section 110(b) of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7107(b)) into the principal languages of as many countries as possible, with particular emphasis on the languages of the countries on the lists described in subparagraphs (B) and (C) of section 110(b)(1) of such Act; and
ensure that such translations are made available to the public, including through postings on the Internet website of the Department of State and other appropriate websites.
Research on domestic and international trafficking in persons
Integrated database
Section 112A of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7109a) is amended—
in subsection (a), by amending paragraph (5) to read as follows:
An effective mechanism for quantifying the number of victims of trafficking on a national, regional, and international basis, which shall include, not later than 2 years after the date of the enactment of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, the establishment and maintenance of an integrated database within the Human Smuggling and Trafficking Center.
; and
by amending subsection (b) to read as follows:
Role of Human Smuggling and Trafficking Center
In general
The research initiatives described in paragraphs (4) and (5) of subsection (a) shall be carried out by the Human Trafficking and Smuggling Center, established under section 7202 of the 9/11 Commission Implementation Act of 2004 (8 U.S.C. 1777).
Database
The database described in subsection (a)(5) shall be established by combining all applicable data collected by each Federal department and agency represented on the Interagency Task Force to Monitor and Combat Trafficking, consistent with the protection of sources and methods, and, to the maximum extent practicable, applicable data from relevant international organizations, to—
improve the coordination of the collection of data related to trafficking in persons by each agency of the United States Government that collects such data;
promote uniformity of such data collection and standards and systems related to such collection;
undertake a meta-analysis of patterns of trafficking in persons, slavery, and slave-like conditions to develop and analyze global trends in human trafficking;
identify emerging issues in human trafficking and establishing integrated methods to combat them; and
identify research priorities to respond to global patterns and emerging issues.
Consultation
The database established in accordance with paragraph (2) shall be maintained in consultation with the Director of the Office to Monitor and Combat Trafficking in Persons of the Department of State.
Authorization of appropriations
There are authorized to be appropriated $3,000,000 to the Human Trafficking and Smuggling Center for each of the fiscal years 2008 through 2011 to carry out the activities described in this subsection.
.
Report
Section 110(b)(1) of such Act (22 U.S.C. 7107(b)(1)) is amended—
in subparagraph
(C), by striking and
at the end;
in subparagraph (D), by striking the period at the end and inserting a semicolon; and
by adding at the end the following:
reporting and analysis on the emergence or shifting of global patterns in human trafficking, including data on the number of victims trafficked to, through, or from major source and destination countries, disaggregated by nationality, gender, and age, as possible; and
emerging issues in human trafficking.
.
Presidential Award for Extraordinary Efforts to Combat Trafficking in Persons
The Trafficking Victims Protection Act of 2000 (22 U.S.C. 7101 et seq.) is amended by inserting after section 112A the following:
Presidential Award for Extraordinary Efforts to Combat Trafficking in Persons
Establishment of award
The President is
authorized to establish an award, to be known as the Paul D. Wellstone
Presidential Award for Extraordinary Efforts To Combat Trafficking in
Persons
, for extraordinary efforts to combat trafficking in persons. To
the maximum extent practicable, the Secretary of State shall present the award
annually to not more than 5 individuals or organizations, including—
individuals who are United States citizens or foreign nationals; and
United States or foreign nongovernmental organizations.
Selection
The President shall establish procedures for selecting recipients of the award authorized under subsection (a).
Ceremony
The Secretary of State shall host an annual ceremony for recipients of the award authorized under subsection (a) as soon as practicable after the date on which the Secretary submits to Congress the report required under section 110(b)(1). The Secretary of State may pay the travel costs of each recipient and a guest of each recipient who attends the ceremony.
Authorization of appropriations
There are authorized to be appropriated, for each of the fiscal years 2008 through 2011, such sums as may be necessary to carry out this section.
.
Report on activities of the Department of Labor to monitor and combat forced labor and child labor
Final report; public availability of list
Not later than January 15, 2009, the Secretary of Labor shall—
submit to the appropriate congressional committees a final report that—
describes the implementation of section 105(b) of the Trafficking Victims Protection Reauthorization Act of 2005 (22 U.S.C. 7103(b)); and
includes an initial list of goods described in paragraph (2)(C) of such section; and
make the list of goods described in paragraph (1)(B) available to the public.
Appropriate congressional committees defined
In this section, the term appropriate congressional committees has the meaning given the term in section 103 of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7102).
Combating trafficking in persons in the United States
Ensuring availability of possible witnesses and informants
Protecting trafficking victims against retaliation
T Visas
Section 101(a)(15)(T) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(T)) is amended—
in clause (i)—
in the matter
preceding subclause (I), by striking Security and the Attorney General
jointly;
and inserting Security, in consultation with the
Attorney General,
;
in subclause (I), by striking the comma at the end and inserting a semicolon;
in subclause (II),
by adding at the end the following: including physical presence on
account of the alien having been allowed entry into the United States for
participation in investigative or judicial processes;
;
in subclause (III)—
in item (aa), by
striking or
at the end;
by redesignating item (bb) as item (cc);
by inserting after item (aa) the following:
after consultation with the Attorney General, is unlikely or unable to cooperate with a request described in item (aa) due to physical or psychological trauma; or
; and
in
item (cc), as redesignated, by striking , and
at the end and
inserting ; and
;
in subclause (IV),
by adding and
at the end;
in clause (ii)—
in subclause (I),
by striking or
at the end;
in subclause (II),
by striking and
at the end and inserting or
;
and
by adding at the end the following:
any parent or minor sibling of an alien described in subclause (I) or (II) who a law enforcement officer determines faces a present danger of retaliation as a result of the alien’s escape from the severe form of trafficking or cooperation with law enforcement.
; and
by striking clause (iii).
Requirements for T visa issuance
Section 214(o) of the Immigration and Nationality Act (8 U.S.C. 1184(o)) is amended—
in paragraph (7)(B)—
by striking
subparagraph (A) if a Federal
and inserting the following:
“subparagraph (A) if—
a Federal
;
by striking the
period at the end and inserting ; or
; and
by adding at the end the following:
the Secretary of Homeland Security determines that an extension of the period of such nonimmigrant status is warranted due to exceptional circumstances.
; and
by adding at the end the following:
In determining the existence of extreme hardship under section 101(a)(15)(T)(i)(IV), the Secretary of Homeland Security, in consultation with the Attorney General and other relevant individuals responsible for working with victims and witnesses, may consider—
whether the country to which the alien is likely to be removed could adequately address security concerns; and
the mental and physical health needs of the alien and of the family members of the alien (as described in section 101(a)(15)(T)(ii)).
.
Conditions on nonimmigrant status for certain crime victims
Section 214(p)(6)
of the Immigration and Nationality Act (8 U.S.C. 1184(p)(6)) is amended by
adding at the end the following: The Secretary of Homeland Security may
extend the authorized period of status of an alien as a nonimmigrant under
section 101(a)(15)(U) for a period in excess of 4 years if the Secretary
determines that an extension of such period is warranted due to exceptional
circumstances. Such alien’s nonimmigrant status shall be extended if the alien
is eligible for relief under section 245(m) and is unable to obtain such relief
because regulations have not been issued to implement such
section.
.
Adjustment of Status for trafficking victims
Section 245(l) of the Immigration and Nationality Act (8 U.S.C. 1255(l)) is amended—
in paragraph (1)—
in the matter preceding subparagraph (A),
by striking the Attorney General,,
and inserting in the
opinion of the Secretary of Homeland Security, in consultation with the
Attorney General,
;
in subparagraph (B)—
by inserting
subject to paragraph (6),
after (B)
; and
by striking
, and
and inserting ; and
; and
in subparagraph (C)—
in clause (i), by striking ,
or
and inserting ; or
; and
in clause (ii), by striking , or in
the case of subparagraph (C)(i), the Attorney General,
;
in paragraph (3), by striking the period at the end and inserting the following: “, unless—
the absence was necessary to assist in the investigation or prosecution described in paragraph (1)(A); or
an official involved in the investigation or prosecution certifies that the absence was otherwise justified.
; and
by adding at the end the following:
For purposes of paragraph (1)(B), the Secretary of Homeland Security may waive consideration of a disqualification from good moral character with respect to an alien if the disqualification was caused by, or incident to, the trafficking described in section 101(a)(15)(T)(i)(I). All costs or fees associated with filing an application for relief through final adjudication of the adjustment of status for a VAWA self-petitioner and for relief under sections 101(a)(15)(T), 101(a)(15)(U), 106, 240A(b)(2), or 244(a)(3) (as in effect on March 31, 1997) shall be eligible for fee waivers.
.
Adjustment of status for crime victims
Section 245(m)(1) of the Immigration and Nationality Act (8 U.S.C. 1255(m)(1)) is amended, in the matter preceding subparagraph (A)—
by inserting
The
before Secretary of Homeland Security
;
and
by striking
unless the Attorney General
and inserting unless the
Secretary, in consultation with the Attorney General,
.
Information for work-based nonimmigrants on legal rights and resources
Information pamphlet
Development and distribution
The Secretary of Homeland Security, in consultation with the Secretary of State, the Attorney General, and the Secretary of Labor, shall develop an information pamphlet on legal rights and resources for aliens applying for employment-based nonimmigrant visas.
Consultation
In developing the information pamphlet under paragraph (1), the Secretary of Homeland Security shall consult with nongovernmental organizations with expertise on the legal rights of workers and victims of severe forms of trafficking in persons.
Contents
The information pamphlet developed under subsection (a) shall include information concerning—
the nonimmigrant visa application processes, including information about the portability of employment;
the legal rights of employment-based nonimmigrant visa holders under Federal immigration, labor, and employment law;
the illegality of slavery, peonage, trafficking in persons, sexual assault, extortion, blackmail, and worker exploitation in the United States;
the legal rights of immigrant victims of worker exploitation, including—
the right of access to immigrant and labor rights groups;
the right to seek redress in United States courts; and
the right to report abuse without retaliation; and
services for victims of severe forms of trafficking in persons and worker exploitation in the United States, including Federal law enforcement and victim services complaint lines.
Translation
In general
To best serve the language groups having the greatest concentration of employment-based nonimmigrant visas, the Secretary of Homeland Security shall translate the information pamphlet developed under subsection (a) into not fewer than 14 foreign languages, to be determined by the Secretary based on the languages spoken by the greatest concentrations of employment-based nonimmigrant visa applicants.
Revision
Every 2 years, the Secretary of Homeland Security, in consultation with the Attorney General and the Secretary of State, shall determine the 14 specific languages into which the information pamphlet will be translated based on the languages spoken by the greatest concentrations of employment-based nonimmigrant visa applicants.
Availability and distribution
Posting on federal websites
The information pamphlet developed under subsection (a) shall be posted on the websites of the Department of State, the Department of Homeland Security, the Department of Justice, the Department of Labor, and all United States consular posts processing applications for nonimmigrant visas.
Other distribution
The information pamphlet developed under subsection (a) shall be made available to any—
government agency;
nongovernmental advocacy organization; or
foreign labor broker doing business in the United States.
Deadline for pamphlet development and distribution
Not later than 180 days after the date of the enactment of this Act, the Secretary of Homeland Security shall distribute and make available the information pamphlet developed under subsection (a) in all the languages referred to in subsection (c).
Responsibilities of consular officers of the Department of State
Interviews
A consular officer conducting an interview of an alien for an employment-based nonimmigrant visa shall—
orally disclose to the alien the information described in paragraphs (2) and (3) in a language that the alien understands; and
distribute the pamphlet required under subsection (a).
Legal rights
The consular officer shall disclose to the alien—
the legal rights of employment-based nonimmigrant visa holders under Federal immigration, labor, and employment laws;
the illegality of slavery, peonage, trafficking in persons, sexual assault, extortion, blackmail, and worker exploitation in the United States; and
the legal rights of immigrant victims of trafficking in persons, worker exploitation, and other related crimes, including—
the right of access to immigrant and labor rights groups;
the right to seek redress in United States courts; and
the right to report abuse without retaliation.
Victim services
In carrying out the disclosure requirement under this subsection, the consular officer shall disclose to the alien the availability of services for victims of human trafficking and worker exploitation in the United States, including victim services complaint hotlines.
Definitions
In this section:
Employment-based nonimmigrant visa
The term employment-based nonimmigrant visa means a nonimmigrant visa issued for the purpose of employment, education, or training in the United States, including visas issued under subparagraph (A)(iii), (B)(i) (but only for domestic servants described in clause (i) or (ii) of section 274a.12(c)(17) of title 8, Code of Federal Regulations (as in effect on December 4, 2007)), (G)(v), (H), (J), (L), (Q), or (R) of section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)).
Severe forms of trafficking in persons
The term severe forms of trafficking in persons has the meaning given the term in section 103 of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7102).
Domestic worker protections
Definitions
In this section:
A–3 visa
The term A–3 visa means a nonimmigrant visa issued pursuant to section 101(a)(15)(A)(iii) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(A)(iii)).
G–5 visa
The term G–5 visa means a nonimmigrant visa issued pursuant to section 101(a)(15)(G)(v) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(G)(v)).
Secretary
The term Secretary means the Secretary of State.
Distribution of anti-trafficking information to applicants for A–3 and G–5 visas
In general
The Secretary shall ensure the content, consistency, and accuracy of information disseminated to—
recipients of A–3 and G–5 visas; and
sponsors or employers of such visa applicants or visa holders.
Information pamphlet
Development
Pursuant to paragraph (1), the Secretary, in consultation with the Secretary of the Department of Homeland Security, the Attorney General, the Secretary of Labor, and nongovernmental organizations with expertise in the legal rights of, and services for, human trafficking victims and immigrant workers, shall develop an information pamphlet for applicants seeking A–3 and G–5 visas.
Content
The pamphlet required under this paragraph shall include information on—
the visa application process;
the terms and conditions of the immigration status granted such visa holders in the United States, if admitted;
the rights of A–3 and G–5 visa holders under Federal immigration, labor, and employment laws, including—
the right to report abuse without retaliation;
the right of access to immigrant and labor rights groups; and
the right to seek redress in United States courts;
the laws of the United States prohibiting slavery, peonage, trafficking in persons, sexual assault, extortion, blackmail, and worker exploitation;
the right of the visa holder to retain possession of their passport;
the requirement of an employment contract between the employer and the visa holder and an explanation of the rights and protections included in the contract; and
information about nongovernmental organizations that provide services to trafficking victims, including—
the National Trafficking in Persons and Worker Exploitation Task Force complaint line;
the Operation Rescue and Restore hotline; and
a general description of the types of victims services available if an individual is subject to trafficking in persons.
Translation
The Secretary, in consultation with the Secretary of Homeland Security, shall translate the information pamphlet required under this paragraph into at least 10 languages based upon the languages spoken by the greatest concentration of A–3 and G–5 visa holders.
Availability
By mail
The Secretary shall mail the information pamphlet developed under this paragraph to each applicant for an A–3 or G–5 visa. The pamphlet shall be in the primary language of the applicant, or in English if no translation into the applicant’s primary language is available.
Consular interviews
The consular officer conducting the personal interview with the visa applicant shall provide the information pamphlet developed under this paragraph to the applicant. If a version of the pamphlet is not available in the primary language of the applicant, the officer shall—
provide the applicant with a copy of the pamphlet in English; and
if the officer determines that the applicant is illiterate, review the pamphlet with the applicant orally in the primary language of the applicant.
Website
The Secretary shall ensure that the information pamphlet developed under this paragraph is posted on—
the Internet website of the Department of State; and
on the Internet websites of all consular posts processing A–3 and G–5 visa applications.
Limitations on issuance of A–3 and G–5 visas
Contract requirement
Notwithstanding any other provision of law, the Secretary may not issue a visa—
under section 101(a)(15)(A)(iii) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(A)(iii)) unless the applicant is employed, or has signed a contract to be employed, by the Ambassador, Deputy Chief of Mission, or principal officer or deputy principal officer of a diplomatic mission or consular post; or
under section 101(a)(15)(G)(v) of such Act unless the applicant is employed, or has signed a contract to be employed by an employee in a senior management position in an international organization.
Suspension requirement
Notwithstanding any other provision of law, the Secretary shall suspend, for such period as the Secretary determines necessary, the issuance of visas under subparagraphs (A)(iii) and (G)(v) of section 101(a)(15) of the Immigration and Nationality Act to applicants seeking to work for officials of a diplomatic mission, if the Secretary finds that such mission, or the employees of such mission, have a record of abusing or exploiting A–3 or G–5 visa holders, or of tolerating such actions.
Protections and remedies for A–3 and G–5 visa holders employed by diplomats and staff of international organizations
In general
The Secretary may not issue or renew an A–3 or G–5 visa unless—
the visa applicant has executed a contract with the employer or prospective employer containing provisions described in paragraph (2); and
a consular officer has conducted a personal interview with the applicant outside the presence of the employer or any recruitment agent in which the officer reviewed the terms of the contract and the provisions of the pamphlet required under subsection (b)(2).
Mandatory contract
The contract between the employer and domestic worker required under paragraph (1) shall include—
an agreement by the employer to abide by all Federal, State, and local laws in the United States;
information on the frequency and form of payment, work duties, weekly work hours, holidays, sick days, and vacation days; and
an agreement by the employer not to withhold the passport, employment contract, or other personal property of the employee.
Training of consular officers
The Secretary shall provide appropriate training to consular officers on fair labor standards in the United States, trafficking in persons, and the provisions of this section.
Recordkeeping
In general
The Secretary shall maintain records on the presence of A–3 and G–5 visa holders in the United States, including—
a copy of the employment contract of applicants for such visas;
information about when the visa holder entered and permanently exited the country place of residence;
the official title, contact information, and immunity level of the employer; and
information regarding any allegations of abuse received by the Department of State.
Protection from removal during legal actions against former employers
Remaining in the United States to seek legal redress
In general
Effect of complaint filing
If an A–3 or G–5 visa holder working in the United States files a complaint regarding a violation of any of the terms contained in the contract or violation of any other Federal, State, or local law in the United States governing the terms and conditions of employment of the visa holder, the Attorney General and the Secretary of Homeland Security shall permit the visa holder to remain legally in the United States for time sufficient to participate fully and effectively in all administrative and legal proceedings related to the complaint.
Failure to exercise due diligence
If the Secretary of Homeland Security, after consultation with the Attorney General, determines that the A–3 or G–5 visa holder has failed to exercise due diligence in pursuing such action, the Secretary may revoke the order permitting the A–3 or G–5 visa holder to remain in the United States.
Authorization to work
The Attorney General and the Secretary of Homeland Security shall authorize visa holders described in subparagraph (A) to engage in employment in the United States during the period the visa holder is in the United States pursuant to subparagraph (A).
Study and report
Investigation report
In general
Not later than 180 days after the date of the enactment of this Act, and every 2 years thereafter for the following 10 years, the Secretary shall submit a report to the appropriate congressional committees on the implementation of this section.
Contents
The report submitted under subparagraph (A) shall include—
an assessment of the actions taken by the Department of State and the Department of Justice to investigate allegations of trafficking or abuse of A–3 and G–5 visa holders; and
the results of such investigations.
Feasibility of oversight of employees of diplomats and representatives of other institutions report
Not later than 180 days after the date of the enactment of this Act, the Secretary shall submit a report to the appropriate congressional committees on the feasibility of—
establishing a system to monitor the treatment of A–3 and G–5 visa holders who have been admitted to the United States;
a range of compensation approaches, such as a bond program, compensation fund, or insurance scheme, to ensure that such visa holders receive appropriate compensation if their employers violate the terms of their employment contracts; and
with respect to each proposed compensation approach described in subparagraph (B), an evaluation and proposal describing the proposed processes for—
adjudicating claims of rights violations;
determining the level of compensation; and
administering the program, fund, or scheme.
Relief for certain victims pending actions on petitions and applications for relief
Section 237 of the Immigration and Nationality Act (8 U.S.C. 1227) is amended by adding at the end the following:
If an application for nonimmigrant status under section 101(a)(15)(T) filed for an alien in the United States sets forth a prima facie case for approval, the Secretary of Homeland Security may grant the alien a stay of removal or deportation until—
the application is approved; or
the application is denied, after the exhaustion of administrative appeals.
Any appeal of the denial of a stay of removal or deportation under this subsection shall accompany any appeal of the underlying substantive petition or application for benefits.
During any period in which an alien is provided a stay of removal under this subsection, the alien may not be removed or deported.
Nothing in this subsection may be construed to limit the authority of the Secretary of Homeland Security to grant a stay of removal or deportation in any case not described in this subsection.
.
Expansion of authority to permit continued presence in the United States
Expansion of authority
In general
Section 107(c)(3) of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7105(c)(3)) is amended to read as follows:
Authority to permit continued presence in the United States
Trafficking victims
In general
If a Federal law enforcement official files an application that makes a prima facie showing that an alien may be a victim of a severe form of trafficking and may be a potential witness to such trafficking, the Secretary of Homeland Security may permit the alien to remain in the United States to facilitate the investigation and prosecution of those responsible for such crime.
Safety
While investigating and prosecuting suspected traffickers, Federal law enforcement officials described in clause (i) shall make reasonable efforts to protect the safety of trafficking victims, including taking measures to protect trafficked persons and their family members from intimidation, threats of reprisals, and reprisals from traffickers and their associates.
Continuation of presence
The Secretary shall permit an alien described in clause (i) who has filed a civil action under section 1595 of title 18, United States Code, to remain in the United States until such action is concluded. If the Secretary, in consultation with the Attorney General, determines that the alien has failed to exercise due diligence in pursuing such action, the Secretary may revoke the order permitting the alien to remain in the United States.
Parole for relatives
Law enforcement officials may submit written requests to the Secretary of Homeland Security, in accordance with section 240A(b)(6) of the Immigration and Nationality Act (8 U.S.C. 1229b(b)(b)), to permit the parole into the United States of certain relatives of an alien described in subparagraph (A)(i).
State and local law enforcement
The Secretary of Homeland Security, in consultation with the Attorney General, shall—
develop materials to assist State and local law enforcement officials in working with Federal law enforcement to obtain continued presence for victims of a severe form of trafficking in cases investigated or prosecuted at the State or local level; and
distribute the materials developed under clause (i) to State and local law enforcement officials.
.
Effective date
The amendment made by paragraph (1)—
shall take effect on the date of the enactment of this Act;
shall apply to requests for continued presence filed pursuant to section 107(c)(3) of the Trafficking Victims Protection Act (22 U.S.C. 7105(c)(3)) before, on, or after such date; and
may not be applied to an alien who is not present in the United States.
Parole for derivatives of trafficking victims
Section 240A(b) of the Immigration and Nationality Act (8 U.S.C. 1229b(b)) is amended by adding at the end the following:
Relatives of trafficking victims
In general
Upon written request by a law enforcement official, the Secretary of Homeland Security may parole under section 212(d)(5) any alien who is a relative of an alien granted continued presence under section 107(c)(3)(A) of the Trafficking Victims Protection Act (22 U.S.C. 7105(c)(3)(A)), if the relative—
was, on the date on which law enforcement applied for such continued presence—
in the case of an alien granted continued presence who is under 21 years of age, the spouse, child, parent, or unmarried sibling under 18 years of age, of the alien; or
in the case of an alien granted continued presence who is 21 years of age or older, the spouse or child of the alien; or
is a parent or sibling of the alien who the requesting law enforcement official determines to be in present danger of retaliation as a result of the alien’s escape from the severe form of trafficking or cooperation with law enforcement, irrespective of age.
Duration of parole
In general
The Secretary shall extend the parole granted under subparagraph (A) until the final adjudication of the application filed by the principal alien under section 101(a)(15)(T)(ii).
Other limits on duration
If an application described in clause (i) is not filed, the parole granted under subparagraph (A) shall extend until the later of—
the date on which the principal alien’s authority to remain in the United States under section 107(c)(3)(A) of the Trafficking Victims Protection Act (22 U.S.C. 7105(c)(3)(A)) is terminated; or
the date on which a civil action filed by the principal alien under section 1595 of title 18, United States Code, is concluded.
Due diligence
Failure by the principal alien to exercise due diligence in filing a visa petition on behalf of an alien described in clause (i) or (ii) of subparagraph (A), or in pursuing the civil action described in clause (ii)(II) (as determined by the Secretary of Homeland Security in consultation with the Attorney General), may result in revocation of parole.
Other limitations
A relative may not be granted parole under this paragraph if—
the Secretary of Homeland Security or the Attorney General has reason to believe that the relative was knowingly complicit in the trafficking of an alien permitted to remain in the United States under section 107(c)(3)(A) of the Trafficking Victims Protection Act (22 U.S.C. 7105(c)(3)(A)); or
the relative is an alien described in paragraph (2) or (3) of section 212(a) or paragraph (2) or (4) of section 237(a).
.
Implementation of Trafficking Victims Protection Reauthorization Act of 2005
Rulemaking
Not later than 120 days after the date of the enactment of this Act, the Secretary of Homeland Security shall issue interim regulations regarding the adjustment of status to permanent residence for nonimmigrants admitted into the United States under section 101(a)(15)(T) or (U) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(T) and (U)).
Report
If the interim regulations required under subsection (a) are not issued by the deadline set forth in subsection (a), the Secretary shall submit a report providing a detailed explanation of the reasons such regulations have not been issued to—
the Committee on Foreign Relations of the Senate;
the Committee on the Judiciary of the Senate;
the Committee on Foreign Affairs of the House of Representatives; and
the Committee on the Judiciary of the House of Representatives.
Extension of eligibility until issuance of regulations
Section 214(o)(7)(B) of the Immigration and Nationality Act (8 U.S.C. 1184(o)(7)(B)) is amended—
by striking
if a Federal
and inserting “if—
a Federal
; and
by striking the
period at the end and inserting ; or
the alien is eligible for relief under section 245(l) and is unable to obtain such relief because regulations have not been issued to implement such section.
.
Assistance for trafficking victims
Assistance for certain nonimmigrant status applicants
In general
Section 431(c) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1641(c)) is amended—
in paragraph
(2)(B), by striking or
at the end;
in paragraph
(3)(B), by striking the period at the end and inserting ; or
;
and
by inserting after paragraph (3) the following:
an alien for which a petition has been approved, or is pending, that sets forth a prima facie case for status as a nonimmigrant under section 101(a)(15)(T) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(T)).
.
Effective date
The amendments made by subsection (a) shall apply to applications for public benefits and public benefits provided on or after the date of the enactment of this Act without regard to whether regulations have been implemented to carry out such amendments.
Interim assistance for child victims of trafficking
In general
Section 107(b)(1) of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7105(b)(1)) is amended—
in subparagraph (E)—
in clause (i)—
in subclause (I), by inserting or is
unlikely or unable to cooperate with such a request due to physical or
psychological trauma
before the semicolon; and
in subclause
(II)(bb), by striking the Attorney General and
; and
in clause (ii), by
striking Attorney General
; and
by adding at the end the following:
Eligibility of interim assistance for child victims
Determination
Upon receiving credible information that a person described in subparagraph (C)(ii)(I) who is seeking assistance under this paragraph has been subjected to a severe form of trafficking in persons, the Secretary of Health and Human Services shall promptly determine if the person is eligible for interim assistance under this paragraph. The Secretary shall have exclusive authority to make interim eligibility determinations under this clause.
Notification
The Secretary of Health and Human Services shall notify the Attorney General and the Secretary of Homeland Security not later than 48 hours after all interim eligibility determinations have been made under clause (i) if there is evidence of an ongoing violation.
Duration
Assistance under this paragraph may be provided to individuals determined to be eligible under clause (i) for a period of up to 90 days and may be extended for an additional 30 days.
Long-term assistance for child victims
Eligibility determination
Before the expiration of the period for interim assistance under clause (iii), the Secretary of Health and Human Services shall determine if the person referred to in clause (i) is eligible for assistance under this paragraph.
Consultation
In making a determination, the Secretary must consult with the Attorney General, the Secretary of Homeland Security, and nongovernmental organizations with expertise on victims of severe form of trafficking.
Letter of eligibility
If the Secretary, after receiving information the Secretary believes, taken as a whole, indicates that the person referred to in clause (i) was a victim of a severe form of human trafficking, the Secretary shall issue a letter confirming that the person is eligible for assistance under this paragraph. The Secretary may not require that the person meet with law enforcement as a condition for receiving such letter of eligibility.
Notification of child victims for interim assistance
Federal officials
Not later than 24 hours after a Federal official discovers that a person who is under 18 years of age may be a victim of a severe form of trafficking in persons, the official shall notify the Secretary of Health and Human Services to facilitate the provision of interim assistance under subparagraph (F).
State and local officials
Not later than 48 hours after a State or local official discovers that a person who is under 18 years of age may be a victim of trafficking in persons, the official shall notify the Secretary of Health and Human Services to facilitate the provision of interim assistance under subparagraph (F).
.
Training of government personnel
Section 107(c)(4) of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7105(c)(4)) is amended to read as follows:
Training of government personnel
Federal personnel
Appropriate personnel of the Department of State, the Department of Justice, the Department of Homeland Security, and the Department of Health and Human Services shall be trained to—
identify victims of severe forms of trafficking, including juvenile victims; and
provide for the protection of such victims.
State and local officials
The Attorney General and the Secretary of Heath and Human Services shall provide education and guidance to State and local officials regarding—
the identification of aliens who are the victims of severe forms of trafficking, particularly child victims of trafficking; and
the requirements of subsection (b)(1)(G)(ii).
.
Ensuring assistance for all victims of trafficking in persons
Amendments to the Trafficking Victims Protection Act of 2000
Assistance for United States citizens and lawful permanent residents
Section 107 of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7105) is amended by inserting after subsection (e) the following:
Assistance for United States citizens and lawful permanent residents
In general
The Secretary of Health and Human Services and the Attorney General, in consultation with the Secretary of Labor, shall establish a program to assist United States citizens and aliens lawfully admitted for permanent residence (as defined in section 101(a)(20) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(20))) who are victims of severe forms of trafficking. In determining the assistance that would be most beneficial for such victims, the Secretary and the Attorney General shall consult with nongovernmental organizations that provide services to victims of severe forms of trafficking in the United States.
Use of existing programs
In addition to specialized services required for victims described in paragraph (1), the program established pursuant to paragraph (1) shall—
facilitate communication and coordination between the providers of assistance to such victims;
provide a means to identify such providers; and
provide a means to make referrals to programs for which such victims are already eligible, including programs administered by the Department of Justice and the Department of Health and Human Services.
Grants
In general
The Secretary of Health and Human Services and the Attorney General may award grants to States, Indian tribes, units of local government, and nonprofit, nongovernmental victim service organizations to develop, expand, and strengthen victim service programs authorized under this subsection.
Maximum federal share
The Federal share of a grant awarded under this paragraph may not exceed 75 percent of the total costs of the projects described in the application submitted by the grantee.
.
Authorization of appropriations
Section 113 of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7110) is amended—
in subsection (b)—
by
striking To carry out
and inserting the following:
Eligibility for benefits and assistance
To carry out
; and
by adding at the end the following:
Additional benefits for trafficking victims
To carry out the purposes of section 107(f), there are authorized to be appropriated to the Secretary of Health and Human Services—
$2,500,000 for fiscal year 2008;
$5,000,0000 for fiscal year 2009;
$10,000,000 for fiscal year 2010; and
$15,000,000 for fiscal year 2011.
; and
in subsection (d)—
by
striking To carry out the purposes of section 107(b)
and
inserting the following:
Eligibility for benefits and assistance
To carry out the purposes of section 107(b)
;
by
striking To carry out the purposes of section 134
and inserting
the following:
Assistance to foreign countries
To carry out the purposes of section 134
; and
by adding at the end the following:
Additional benefits for trafficking victims
To carry out the purposes of section 107(f), there are authorized to be appropriated to the Attorney General—
$2,500,000 for fiscal year 2008;
$5,000,0000 for fiscal year 2009;
$10,000,000 for fiscal year 2010; and
$15,000,000 for fiscal year 2011.
.
Technical assistance
Section 107(b)(2)(B)(ii) of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7105(b)(2)(B)(ii)) is amended to read as follows:
5 percent for training and technical assistance, including increasing capacity and expertise on security for and protection of service providers from intimidation or retaliation for their activities.
.
Study
Requirement
Not later than 1 year after the date of the enactment of this Act, the Attorney General and the Secretary of Health and Human Services shall submit a report to the appropriate congressional committees that identifies the existence or extent of any service gap between foreign and United States citizen victims of severe forms of trafficking and victims of sex trafficking (as defined in section 103 of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7102)).
Elements
In carrying out the study under subparagraph (1), the Attorney General and the Secretary of Health and Human Services shall—
investigate factors relating to the legal ability of foreign and United States citizen victims of trafficking to access government-funded social services in general, including the application of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1641(c)(5)) and the Illegal Immigration and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208; 110 Stat. 3009 et seq.);
investigate any other impediments to the access of foreign and United States citizen victims of trafficking to government-funded social services;
investigate any impediments to the access of foreign and United States citizen victims of trafficking to government-funded services targeted to victims of severe forms of trafficking and victims of sex trafficking;
investigate the effect of trafficking service-provider infrastructure development, continuity of care, and availability of caseworkers on the eventual restoration and rehabilitation of foreign and United States citizen victims of trafficking; and
include findings, best practices, and recommendations, if any, based on the study of the elements described in subparagraphs (A) through (D) and any other related information.
Penalties against traffickers and other crimes
Restitution of forfeited assets; enhancement of civil action
Chapter 77 of title 18, United States Code, is amended—
in section 1593(b), by adding at the end the following:
The distribution of proceeds among multiple victims in an order of restitution under this section shall govern the distribution of forfeited funds through the processes of remission or restoration under this section or any other statute that explicitly authorizes restoration or remission of forfeited property.
;
in section 1594—
in subsection
(b), by striking The court,
and inserting Subject to
remission or restoration, the court,
; and
in subsection (c), by adding at the end the following:
The Attorney General shall grant restoration or remission of property to victims of—
an offense under this chapter that results in forfeiture under this section; or
an offense under any other statute that explicitly authorizes restoration or remission of forfeited property.
In a prosecution brought under Federal law, the Attorney General may grant restoration or remission of property to victims of severe forms of trafficking (as defined in section 103 of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7102)), in accordance with section 1593(b)(4).
; and
in section 1595—
in subsection (a)—
by
striking of section 1589, 1590, or 1591
; and
by
inserting (or any person who knowingly benefits, financially or by
receiving anything of value from participation in a venture which has engaged
in an act in violation of this chapter)
after
perpetrator
; and
by adding at the end the following:
No action may be maintained under this section unless it is commenced not later than 10 years after the cause of action arose.
.
Enhancing trafficking offenses
Detention
Section 3142(e) of title 18, United States Code, is amended—
by redesignating paragraphs (1), (2), and (3) as subparagraphs (A), (B), and (C), respectively;
by inserting
(1)
before If, after a
hearing
;
by inserting
(2)
before In a
case
;
by inserting
(3)
before Subject to
rebuttal
;
by striking
paragraph (1) of this subsection
each place it appears and
inserting subparagraph (A)
;
in paragraph (3), as redesignated—
by striking
committed an offense
and inserting the following:
“committed—
an offense
;
by striking
46, an offense
and inserting the following: “46;
an offense
;
by striking
title, or an offense
and inserting the following: “title;
an offense
; and
by striking
prescribed or an offense
and inserting the following:
“prescribed;
an offense under chapter 77 of this title for which a maximum term of imprisonment of 20 years or more is prescribed; or
an offense
.
Preventing obstruction
Enticement into slavery
Section 1583 of title 18, United States Code, is amended to read as follows:
Enticement into slavery
Any person who—
kidnaps or carries away any other person, with the intent that such other person be sold into involuntary servitude, or held as a slave;
entices, persuades, or induces any other person to go on board any vessel or to any other place with the intent that he may be made or held as a slave, or sent out of the country to be so made or held; or
obstructs, or attempts to obstruct, or in any way interferes with or prevents the enforcement of this section,
Any person who violates this section shall be fined under this title, imprisoned for any term of years or for life, or both if—
the violation results in the death of the victim; or
the violation includes kidnapping, an attempt to kidnap, aggravated sexual abuse, an attempt to commit aggravated sexual abuse, or an attempt to kill.
.
Sale into involuntary servitude
Section 1584 of such title is amended—
by inserting
(a)
before Whoever
; and
by adding at the end the following:
Whoever obstructs, attempts to obstruct, or in any way interferes with or prevents the enforcement of this section, shall be subject to the penalties under subsection (a).
.
Trafficking
Section 1590 of such title is amended—
by inserting
(a)
before Whoever
; and
by adding at the end the following:
Whoever obstructs, attempts to obstruct, or in any way interferes with or prevents the enforcement of this section, shall be subject to the penalties under subsection (a).
.
Sex trafficking of children
Section 1591 of such title is amended—
in subsection
(a), by striking that force, fraud, or coercion described in subsection
(c)(2)
and inserting , or in reckless disregard of the fact,
that means of force, threats of force, fraud, coercion described in subsection
(c)(2), or any combination of such means
;
in subsection
(b)(1), by striking force, fraud, or coercion
and inserting
means of force, threats of force, fraud, coercion, or any combination of
such means,
;
by redesignating subsection (c) as subsection (d);
by inserting after subsection (b) the following:
Whoever obstructs, attempts to obstruct, or in any way interferes with or prevents the enforcement of this section, shall be subject to the penalties under subsection (b).
; and
in subsection (d), as redesignated—
by redesignating paragraph (3) as paragraph (5);
by redesignating paragraph (1) as paragraph (3);
by inserting before paragraph (2) the following:
The term abuse or threatened abuse of law or legal process means the use or threatened use of a law or legal process, whether civil or criminal, against another person primarily to accomplish a purpose for which the law was not designed, in order to exert pressure on another person to cause that person to take some action or refrain from taking some action.
; and
by inserting after paragraph (3), as redesignated, the following:
The term serious harm means any harm, whether physical or nonphysical, that is sufficiently serious, under all the surrounding circumstances, to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing labor or services in order to avoid incurring that harm.
.
Unlawful conduct
Section 1592 of such title is amended by adding at the end the following:
Whoever obstructs, attempts to obstruct, or in any way interferes with or prevents the enforcement of this section, shall be subject to the penalties under subsection (a).
.
Holding conspirators accountable
Section 1594 of title 18, United States Code, is amended—
by redesignating subsections (b), (c), and (d) as subsections (c), (d), and (e) respectively; and
by inserting after subsection (a) the following:
Whoever conspires with another to violate section 1581, 1583, 1589, 1590, 1591, or 1592 shall be punished in the same manner as a completed violation of that section.
.
Punishing financial gain from trafficked labor
Section 1589 of title 18, United States Code, is amended to read as follows:
Forced labor
Whoever knowingly provides or obtains the labor or services of a person by any one of, or by any combination of, the following means—
by means of force, threats of force, physical restraint, or threats of physical restraint to that person or another person;
by means of serious harm or threats of serious harm to that person or another person;
by means of the abuse or threatened abuse of law or legal process; or
by means of any scheme, plan, or pattern intended to cause the person to believe that, if that person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint,
Whoever knowingly benefits, financially or by receiving anything of value, from participation in a venture, which has engaged in the providing or obtaining of labor or services by any of the means described in subsection (a), knowing or in reckless disregard of the fact that the venture has engaged in the providing or obtaining of labor or services by any of such means, shall be punished as provided in subsection (d).
In this section:
The term abuse or threatened abuse of law or legal process means the use or threatened use of a law or legal process, whether civil or criminal, against another person primarily to accomplish a purpose for which the law was not designed, in order to exert pressure on another person to cause that person to take some action or refrain from taking some action.
The term serious harm means any harm, whether physical or nonphysical, that is sufficiently serious, under all the surrounding circumstances, to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing labor or services in order to avoid incurring that harm.
Any person who violates this section shall be fined under this title, imprisoned not more than 20 years, or both. If death results from a violation of this section, or if the violation includes kidnapping, an attempt to kidnap, aggravated sexual abuse, or an attempt to kill, the defendant shall be fined under this title, imprisoned for any term of years, or both.
.
Benefitting from financial gain in peonage, slavery, and trafficking in persons
In general
Chapter 77 of title 18, United States Code, is amended—
by redesignating sections 1593, 1594, and 1595 as sections 1594, 1595, and 1596, respectively; and
by inserting after section 1592 the following:
Benefitting from financial gain in peonage, slavery, and trafficking in persons
Whoever knowingly benefits, financially or by receiving anything of value, from participation in a venture which has engaged in any act in violation of section 1581(a), 1592, or 1595(a), knowing or in reckless disregard of the fact that the venture has engaged in such violation, shall be fined under this title in the same manner as a completed violation of such section.
.
Conforming amendment
The table of sections at the beginning of such chapter is amended by striking the items relating to sections 1593, 1594, and 1595, and inserting the following:
Sec. 1593. Benefitting from financial gain in peonage, slavery, and trafficking in persons.
Sec. 1594. Mandatory restitution.
Sec. 1595. General provisions.
Sec. 1596. Civil remedy.
.
Tightening immigration prohibitions
Ground of inadmissibility for trafficking
Section 212(a)(2)(H)(i) of the
Immigration and Nationality Act (8 U.S.C. 1182(a)(2)(H)(i)) is amended by
striking who is listed in a report submitted pursuant to section 111(b)
of the Trafficking Victims Protection Act of 2000
and inserting
who commits or conspires to commit human trafficking offenses in the
United States or outside the United States
.
Ground of removability
Section 237(a)(2) of such Act (8 U.S.C. 1227(a)(2)) is amended by adding at the end the following:
Trafficking
Any alien described in section 212(a)(2)(H) is deportable.
.
Sex tourism
Chapter 117 of title 18, United States Code, is amended by adding at the end the following:
Sex tourism
Whoever, for the purpose of commercial advantage or private financial gain, arranges, induces, or procures the travel of a person in foreign commerce for the purpose of engaging in any commercial sex act for which any person can be charged with an offense in the jurisdiction in which the commercial sex act occurs, or attempts such conduct, shall be fined under this title, imprisoned not more than 10 years, or both.
.
Jurisdiction in certain trafficking offenses
In general
Chapter 77 of title 18, United States Code, is amended by adding at the end the following:
Additional jurisdiction in certain trafficking offenses
In general
In addition to any domestic or extra-territorial jurisdiction otherwise provided by law, the courts of the United States have extra-territorial jurisdiction over any offense (or any attempt or conspiracy to commit an offense) under section 1581, 1583, 1584, 1589, 1590, or 2429 if—
an alleged offender is a national of the United States or an alien lawfully admitted for permanent residence (as those terms are defined in section 101 of the Immigration and Nationality Act (8 U.S.C. 1101)); or
an alleged offender is present in the United States, irrespective of the nationality of the alleged offender.
Limitation on prosecutions of offenses prosecuted in other countries
No prosecution may be commenced against a person under this section if a foreign government, in accordance with jurisdiction recognized by the United States, has prosecuted or is prosecuting such person for the conduct constituting such offense, except upon the approval of the Attorney General or the Deputy Attorney General (or a person acting in either such capacity), which function of approval may not be delegated.
.
Clerical amendment
The table of sections at the beginning of chapter 77 of title 18, United States Code, is amended by adding at the end the following new item:
1596. Additional jurisdiction in certain trafficking offenses.
.
Sex tourism and removal of sex offenders
In general
The Attorney General shall notify—
the Secretary of State in a timely manner regarding any conviction of an individual of a violation of section 2423 of title 18, United States Code, for appropriate action under subsection (b); and
the Secretary of Homeland Security in a timely manner regarding any conviction of an alien of a sex offense for appropriate action under subsection (c).
Authority To restrict passport
Ineligibility for passport
In general
The Secretary of State shall not issue a passport to an individual who is convicted of a Federal sex offense during the covered period if the individual used a passport or otherwise crossed an international border in committing the Federal sex offense.
Passport revocation
The Secretary of State shall revoke a passport issued to an individual described in subparagraph (A) before the date on which the individual was convicted of the applicable Federal sex offense.
Emergency and humanitarian exceptions
Notwithstanding paragraph (1), the Secretary of State may issue a passport, in emergency circumstances or for humanitarian reasons, to an individual described in paragraph (1)(A).
Definitions
In this subsection—
the term covered period means the period beginning on the date on which an individual is convicted of a Federal sex offense and ending on the latter of—
the date on which the individual is released from a sentence of imprisonment relating to the Federal sex offense; and
the end of a period of parole or other supervised release of the covered individual relating to the Federal sex offense;
the term Federal sex offense means a felony violation of section 2423 of title 18, United States Code; and
the term imprisoned means being confined in or otherwise restricted to a jail, prison, half-way house, treatment facility, or another institution, on a full or part-time basis, pursuant to the sentence imposed as the result of a criminal conviction.
Removal of aliens
The Secretary of Homeland Security shall place an alien convicted of a sex offense in removal proceedings under section 240 of the Immigration and Nationality Act (8 U.S.C. 1229a).
Grounds of inadmissibility and removability
In general
Section 212(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(2)) is amended by adding at the end the following:
Sexual abuse of a minor
In general
An alien who is convicted of sexual abuse of a minor is inadmissible.
Sex offenses
For purposes of this subparagraph, an alien who has been convicted of a sex offense (as that term is defined in section 111 of the Adam Walsh Child Protection and Safety Act of 2006 (42 U.S.C. 16911)) shall be considered to have been convicted of sexual abuse of a minor. An alien convicted of a sex offense shall be ineligible for any discretionary relief under this Act.
.
Deportable aliens
Section 237(a)(2)(A)(iii) of the Immigration and
Nationality Act (8 U.S.C. 1227(a)(2)(A)(iii)) is amended by adding at the end
the following For purposes of this clause, an alien who has been
convicted of a sex offense (as that term is defined in section 111 of the Adam
Walsh Child Protection and Safety Act of 2006 (42 U.S.C. 16911)) shall be
considered to have been convicted of sexual abuse of a minor.
.
Definition of sex offense
In this section, the term sex offense has the meaning given that term in section 111 of the Adam Walsh Child Protection and Safety Act of 2006 (42 U.S.C. 16911).
Activities of the United States Government
Annual report by the Attorney General
Section 105(d)(7) of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7103(d)(7)) is amended—
in subparagraph (A)—
by striking section 107(b)
and inserting subsections (b) and (f) of section 107
; and
by inserting the Attorney
General,
after the Secretary of Labor,
;
in subparagraph
(G), by striking and
at the end;
by redesignating subparagraph (H) as subparagraph (J); and
by inserting after subparagraph (G) the following:
activities by the Department of Defense to combat trafficking in persons, including—
educational efforts for, and disciplinary actions taken against, members of the United States Armed Forces;
the development of materials used to train the armed forces of foreign countries; and
efforts to ensure that United States Government contractors and their employees or United States Government subcontractors and their employees do not engage in trafficking in persons;
activities or actions by Federal departments and agencies to enforce—
section 106(g) and any similar law, regulation, or policy relating to United States Government contractors and their employees or United States Government subcontractors and their employees that engage in severe forms of trafficking in persons, the procurement of commercial sex acts, or the use of forced labor, including debt bondage;
section 307 of the Tariff Act of 1930 (19 U.S.C. 1307; relating to prohibition on importation of convict-made goods), including any determinations by the Secretary of Homeland Security to waive the restrictions of such section; and
prohibitions on the procurement by the United States Government of items or services produced by slave labor, consistent with Executive Order 13107 (December 10, 1998); and
.
Defense contract audit agency audit
Audit
The Defense Contract Audit Agency shall conduct an audit of all contractors and subcontractors of the Department of Defense implementing contracts abroad where there is substantial evidence to suggest trafficking in persons, including—
confiscation of passports;
restriction on mobility;
abrupt or evasive repatriation,
deception of work destination; or
forced labor.
Congressional notification
In general
Not later than 90 days after the completion of each audit under subsection (a), the Secretary of Defense shall—
notify the congressional committees listed in paragraph (2) of the findings of the audit; and
certify that the contractor or subcontractor has not engaged in, or is no longer engaged in, the activities described in subsection (a).
Congressional committees
The committees list in this paragraph are—
the Committee on Armed Services of the Senate;
the Committee on Foreign Relations of the Senate;
the Committee on Armed Services of the House of Representatives; and
the Committee on Foreign Affairs of the House of Representatives.
Senior Policy Operating Group
Section 206 of
the Trafficking Victims Protection Reauthorization Act of 2005 (42 U.S.C.
14044d) is amended by striking , as the department or agency determines
appropriate,
.
Preventing United States travel by traffickers
Section 212(a)(2)(H)(i) of the Immigration
and Nationality Act (8 U.S.C. 1182(a)(2)(H)(i)) is amended by striking
consular officer
and inserting consular officer, the
Secretary of Homeland Security, the Secretary of State,
.
Enhancing efforts to combat the trafficking of children
Combating child trafficking at the border and ports of entry of the United States
Policies and procedures
In order to enhance the efforts of the United States to prevent trafficking in persons, the Secretary of Homeland Security, in conjunction with the Secretary of State, the Attorney General, and the Secretary of Health and Human Services, shall develop policies and procedures to ensure that unaccompanied alien children in the United States are safely repatriated to their country of nationality or of last habitual residence.
Special rules for children from contiguous countries
Determinations
Any unaccompanied alien child who is a national or habitual resident of a country that is contiguous with the United States shall be treated in accordance with subparagraph (B), if the Secretary of Homeland Security determines, on a case-by-case basis, that—
such child has not been a victim of a severe form of trafficking in persons, and there is no credible evidence that such child is at risk of being trafficked upon return to the child’s country of nationality or of last habitual residence;
such child does not have a fear of returning to the child’s country of nationality or of last habitual residence owing to a credible fear of persecution;
there is no credible evidence that the return of such child to the child’s country of nationality or of last habitual residence would endanger the life or safety of such child; and
the child is able to make an independent decision to withdraw the child’s application for admission to the United States.
Return
An immigration officer who finds an unaccompanied alien child described in subparagraph (A) at a land border or port of entry of the United States and determines that such child is inadmissible under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) shall—
permit such child to withdraw the child’s application for admission pursuant to section 235(a)(4) of the Immigration and Nationality Act (8 U.S.C. 1225(a)(4)); and
return such child to the child’s country of nationality or country of last habitual residence.
Contiguous country agreements
The Secretary of State shall negotiate agreements between the United States and countries contiguous to the United States with respect to the repatriation of children. Such agreements shall be designed to protect children from severe forms of trafficking in persons, and shall, at a minimum, provide that—
no child shall be returned to the child’s country of nationality or of last habitual residence unless returned to appropriate officials or employees of the accepting country’s government;
no child shall be returned to the child’s country of nationality or of last habitual residence outside of reasonable business hours; and
border personnel of the countries that are parties to such agreements are trained in the terms of such agreements.
Rule for other children
The custody of unaccompanied alien children not described in paragraph (2)(A) who are apprehended at the border of the United States or at a United States port of entry shall be treated in accordance with subsection (c).
Screening
Within 48 hours of the apprehension of a child who is believed to be described in paragraph (2)(A), but in any event prior to returning such child to the child’s country of nationality or of last habitual residence, the child shall be screened to determine whether the child meets the criteria listed in paragraph (2)(A). If the child does not meet such criteria, or if no determination can be made within 48 hours of apprehension, the child shall immediately be transferred to the Secretary of Health and Human Services and treated in accordance with subsection (c).
Ensuring the safe repatriation of children
Repatriation pilot program
To protect children from trafficking and exploitation, the Secretary of State shall create a pilot program, in conjunction with non-governmental organizations and other national and international agencies and experts, to develop and implement best practices to ensure the safe and secure repatriation and reintegration of unaccompanied alien children into their country of nationality or of last habitual residence, including placement with their families or other sponsoring agencies.
Assessment of country conditions
The Secretary of Homeland Security shall consult the State Department’s Country Reports on Human Rights Practices and the Trafficking in Persons Report in assessing whether to repatriate an unaccompanied alien child to a particular country. Such assessment shall consider whether there is reasonable risk that repatriation of an unaccompanied alien child would threaten the life or safety of the child.
Report on repatriation of unaccompanied alien children
Not later than 18 months after the date of the enactment of this Act, and annually thereafter, the Secretary of Homeland Security, in conjunction with the Secretary of State and Secretary of Health and Human Services, shall submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives on efforts to repatriate unaccompanied alien children. Such report shall include—
the number of unaccompanied alien children ordered removed and the number of such children actually removed from the United States;
a statement of the nationalities, ages, and gender of such children;
a description of the policies and procedures used to effect the removal of such children from the United States and the steps taken to ensure that such children were safely and humanely repatriated to their country of nationality or of last habitual residence, including a description of the repatriation pilot program created pursuant to subparagraph (A);
a description of the type of immigration relief sought and denied to such children;
any information gathered in assessments of country and local conditions pursuant to paragraph (2); and
statistical information and other data on unaccompanied alien children as provided for in section 462(b)(1)(J) of the Homeland Security Act of 2002 (6 U.S.C. 279(b)(1)(J)).
Placement in removal proceedings
Any unaccompanied alien child sought to be removed by the Department of Homeland Security, except for an unaccompanied alien child from a contiguous country subject to exceptions under subsection (a)(2), shall be placed in removal proceedings under section 240 of the Immigration and Nationality Act (8 U.S.C. 1229a) and shall be safely repatriated pursuant to 240B of such Act (8 U.S.C. 1229c).
Combating child trafficking and exploitation in the United States
Care and custody of unaccompanied alien children
Consistent with section 462 of the Homeland Security Act of 2002 (6 U.S.C. 279), and except as otherwise provided under subsection (a), the care and custody of all unaccompanied alien children, including responsibility for their detention, where appropriate, shall be the responsibility of the Secretary of Health and Human Services.
Notification
Each department or agency of the Federal Government shall notify the Department of Health and Human services within 48 hours upon—
the apprehension or discovery of an unaccompanied alien child; or
any claim or suspicion that an alien in the custody of such department or agency is under 18 years of age.
Transfers of unaccompanied alien children
Except in the case of exceptional circumstances, any department or agency of the Federal Government that has an unaccompanied alien child in custody shall transfer the custody of such child to the Secretary of Health and Human Services not later than 72 hours after determining that such child is an unaccompanied alien child.
Age determinations
In general
The Secretary of Health and Human Services shall make an age determination for an alien described in paragraph (2)(B) and take whatever other steps are necessary to determine whether such alien is eligible for treatment under this section or section 462 of the Homeland Security Act of 2002 (6 U.S.C. 279).
Procedures
The Secretary of Health and Human Services, in consultation with the Secretary of Homeland Security, shall develop procedures to make a prompt determination of the age of an alien, which shall be used by the Secretary of Homeland Security and the Secretary of Health and Human Services for children in their respective custody. At a minimum, these procedures shall permit the presentation of multiple forms of evidence, including the non-exclusive use of radiographs, to determine the age of the unaccompanied alien.
Providing safe and secure placements for children
Policies and programs
The Secretary of Health and Human Services, Secretary of Homeland Security, Attorney General, and Secretary of State shall establish policies and programs to ensure that unaccompanied alien children in the United States are protected from traffickers and other persons seeking to victimize or otherwise engage such children in criminal, harmful, or exploitative activity, including policies and programs reflecting best practices in witness security programs.
Safe and secure placements
Subject to section 462(b)(2) of the Homeland Security Act of 2002 (6 U.S.C. 279(b)(2)), an unaccompanied alien child in the custody of the Secretary of Health and Human Services shall be promptly placed in the least restrictive setting that is in the best interest of the child. Placement of child trafficking victims may include placement in an Unaccompanied Refugee Minor program, pursuant to section 501(a) of the Refugee Education Assistance Act of 1980 (8 U.S.C. 1522 note), if a suitable family member is not available to provide care. A child shall not be placed in a secure facility absent an independent finding that the child poses a danger to self or others.
Safety and suitability assessments
In general
Subject to the requirements of subparagraph (B), an unaccompanied alien child may not be placed with a person or entity unless the Secretary of Health and Human Services makes a determination that the proposed custodian is capable of providing for the child’s physical and mental well-being. Such determination shall, at a minimum, include verification of the custodian’s identity and relationship to the child, if any, as well as an independent finding that the individual has not engaged in any activity that would indicate a potential risk to the child.
Home studies
Before placing the child with an individual, the Secretary of Health and Human Services shall determine whether a home study is first necessary. A home study shall be conducted for a child who is a victim of a severe form of trafficking in persons, a special needs child with a disability (as defined in section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102(2))), or a child who has been a victim of physical or sexual abuse under circumstances that indicate that the child’s health or welfare has been significantly harmed or threatened or a child whose proposed sponsor clearly presents a risk of abuse, maltreatment, exploitation, or trafficking to the child based on all available objective evidence. The Secretary of Health and Human Services shall conduct follow-up services, during the pendency of removal proceedings, on children and custodians for whom a home study was conducted and is authorized to conduct follow-up services in cases involving children with mental health or other needs who could benefit from ongoing assistance from a social welfare agency.
Access to information
Not later than 2 weeks after receiving a request from the Secretary of Health and Human Services, the Secretary of Homeland Security shall provide information necessary to conduct suitability assessments from appropriate Federal, State, and local law enforcement and immigration databases.
Legal orientation presentations
The Secretary of Health and Human Services shall cooperate with the Executive Office for Immigration Review to ensure that custodians receive legal orientation presentations provided through the Legal Orientation Program administered by the Executive Office for Immigration Review. Such presentations shall address the custodian’s responsibility to ensure the child’s appearance at all immigration proceedings and to protect the child from mistreatment, exploitation, and trafficking.
Access to counsel
The Secretary of Health and Human Services shall ensure, to the greatest extent practicable, that all unaccompanied alien children who are or have been in the custody of the Secretary or the Secretary of Homeland Security, and who are not described in subsection (a)(2)(A), have competent counsel to represent them in legal proceedings or matters and protect them from mistreatment, exploitation, and trafficking. To the greatest extent practicable, the Secretary of Health and Human Services shall make every effort to utilize the services of competent pro bono counsel who agree to provide representation to such children without charge. Consistent with section 292 of the Immigration and Nationality Act (8 U.S.C. 1362), nothing in this Act may be construed to require the Government of the United States to pay for counsel to any unaccompanied alien child.
Child advocates
The Secretary of Health and Human Services is authorized to appoint independent child advocates for child trafficking victims and other vulnerable unaccompanied alien children. A child advocate shall be provided access to materials necessary to effectively advocate for the best interest of the child. The child advocate shall not be compelled to testify or provide evidence in any proceeding concerning any information or opinion received from the child in the course of serving as a child advocate. The child advocate shall be presumed to be acting in good faith and be immune from civil and criminal liability for lawful conduct of duties as described in this provision.
Confidentiality
The Secretary of Health and Human Services shall maintain the privacy and confidentiality of all information gathered in the course of the care, custody, and placement of unaccompanied alien children, consistent with its role and responsibilities under the Homeland Security Act of 2002 to act as guardian in loco parentis in the best interest of the unaccompanied alien child, by not disclosing such information to other government agencies or nonparental third parties. The Secretary shall provide information to a duly recognized law enforcement entity in connection with a prosecution or investigation of an offense described in paragraph (2) or (3) of section 212(a) of the Immigration and Nationality Act (8 U.S.C. 1182(a)), when such information is requested in writing by such entity.
Permanent protection for certain at-risk children
In general
Section 101(a)(27)(J) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27)(J)) is amended—
in clause (i), by
striking State and who has been deemed eligible by that court for
long-term foster care due to abuse, neglect, or abandonment;
and
inserting State, or an individual or entity appointed by a State or
juvenile court located in the United States, and whose reunification with 1 or
both of the immigrant’s parents is not viable due to abuse, neglect,
abandonment, or a similar basis found under State law;
; and
in clause (iii)—
in
the matter preceding subclause (I), by striking the Attorney General
expressly consents to the dependency order serving as a precondition to the
grant of special immigrant juvenile status;
and inserting the
Secretary of Homeland Security consents to the grant of special immigrant
juvenile status,
; and
in
subclause (I), by striking in the actual or constructive custody of the
Attorney General unless the Attorney General specifically consents to such
jurisdiction;
and inserting in the custody of the Secretary of
Health and Human Services unless the Secretary of Health and Human Services
specifically consents to such jurisdiction;
.
Expeditious adjudication
All applications for special immigrant status under section 101(a)(27)(J) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27)(J)) shall be adjudicated by the Secretary of Homeland Security not later than 180 days after the date on which the application is filed.
Adjustment of status
Section 245(h)(2)(A) of the Immigration and Nationality Act (8 U.S.C. 1255(h)(2)(A)) is amended to read as follows:
paragraphs (4), (5)(A), (6)(A), (6)(C), (6)(D), (7)(A), 9(B), and 9(C)(i)(I) of section 212(a) shall not apply; and
.
Eligibility for assistance
In general
A child who has been granted special immigrant status under section 101(a)(27)(J) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27)(J)) and who was either in the custody of the Secretary of Health and Human Services at the time a dependency order was granted for such child or who was receiving services pursuant to section 501(a) of the Refugee Education Assistance Act of 1980 (8 U.S.C. 1522 note) at the time such dependency order was granted, shall be eligible for placement and services under section 412(d) of the Immigration and Nationality Act (8 U.S.C. 1522(d)) until the earlier of—
the date on which the child reaches the age designated in section 412(d)(2)(B) of the Immigration and Nationality Act (8 U.S.C. 1522(d)(2)(B)); or
the date on which the child is placed in a permanent adoptive home.
State reimbursement
If State foster care funds are expended on behalf of a child who is not described in subparagraph (A) and has been granted special immigrant status under section 101(a)(27)(J) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27)(J)), the Federal Government shall reimburse the State in which the child resides for such expenditures by the State.
State courts acting in loco parentis
A department or agency of a State, or an individual or entity appointed by a State court or juvenile court located in the United States, acting in loco parentis, shall not be considered a legal guardian for purposes of this section or section 462 of the Homeland Security Act of 2002 (6 U.S.C. 279).
Transition rule
Notwithstanding any other provision of law, an alien described in section 101(a)(27)(J) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27)(J)), as amended by paragraph (1), may not be denied special immigrant status under such section after the date of the enactment of this Act based on age if the alien was a child on the date on which the alien applied for such status.
Access to asylum protections
Section 208 of the Immigration and Nationality Act (8 U.S.C. 1158) is amended—
in subsection (a)(2), by adding at the end the following:
Applicability
Subparagraphs (A) and (B) shall not apply to an unaccompanied alien child (as defined in section 462(g) of the Homeland Security Act of 2002 (6 U.S.C. 279(g))).
; and
in subsection (b)(3), by adding at the end the following:
Initial jurisdiction
An asylum officer (as defined in section 235(b)(1)(E)) shall have initial jurisdiction over any asylum application filed by an unaccompanied alien child (as defined in section 462(g) of the Homeland Security Act of 2002 (6 U.S.C. 279(g))), regardless of whether filed in accordance with this section or section 235(b).
.
Specialized needs of children
Applications for asylum and other forms of relief from removal in which a child is the principal applicant shall be governed by regulations which take into account the specialized needs of children and which address both procedural and substantive aspects of handling children’s cases.
Training
The Secretary of State, the Secretary of Homeland Security, the Secretary of Health and Human Services, and the Attorney General shall provide specialized training to all Federal personnel, and upon request, state and local personnel, who come into contact with unaccompanied alien children. Such personnel shall be trained to work with unaccompanied alien children, including identifying children who are a victim of a severe form of trafficking in persons, and children for whom asylum or special immigrant relief may be appropriate, including children described in subsection (a)(2).
Amendments to the Homeland Security Act of 2002
Additional responsibilities
Section 462(b)(1)(L) of the Homeland Security
Act of 2002 (6 U.S.C. 279(b)(1)(L)) is amended by striking the period at the
end and inserting , including regular follow-up visits to such
facilities, placements, and other entities, to assess the continued suitability
of such placements.
.
Technical corrections
Section 462(b) of such Act (6 U.S.C. 279(b)) is further amended—
in paragraph (3),
by striking paragraph (1)(G),
and inserting paragraph
(1),
; and
by adding at the end the following:
Rule of construction
Nothing in paragraph (2)(B) may be construed to require that a bond be posted for an unaccompanied alien child who is released to a qualified sponsor.
.
Definition of unaccompanied alien child
For purposes of this section, the term unaccompanied alien child has the meaning given such term in section 462(g) of the Homeland Security Act of 2002 (6 U.S.C. 279(g)).
Effective date
This section shall—
take effect on the date that is 90 days after the date of the enactment of this Act; and
apply to all aliens in the United States, pending proceedings before the Executive Office for Immigration Review or related administrative or Federal appeals on or after the date of the enactment of this Act.
Grants and contracts
The Secretary of Health and Human Services may award grants to, and enter into contracts with, voluntary agencies to carry out this section and section 462 of the Homeland Security Act of 2002 (6 U.S.C. 279).
Temporary increase in fee for certain consular services
Increase in Fee
Notwithstanding any other provision of law, not later than October 1, 2008, the Secretary of State shall increase by $2 the fee or surcharge assessed under section 140(a) of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995 (Public Law 103–236; 8 U.S.C. 1351 note) for processing machine-readable nonimmigrant visas and machine-readable combined border crossing identification cards and nonimmigrant visas.
Deposit of Amounts
Notwithstanding section 140(a)(2) of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995 (Public Law 103–236; 8 U.S.C. 1351 note), the additional amount collected pursuant the fee increase under subsection (a) shall be deposited in the Treasury.
Duration of Increase
The fee increase authorized under subsection (a) shall terminate on the date that is 2 years after the first date on which such increased fee is collected.
Authorizations of appropriations
Trafficking Victims Protection Act of 2000
Section 113 of the Trafficking Victims Protection Act of 2000, as amended by section 213(a)(2), is amended—
in subsection (a)—
in the first sentence—
by
striking section 104, and
; and
by
striking $1,500,000
and all that follows through
$5,500,000 for each of the fiscal years 2006 and 2007
and
inserting $5,500,000 for each of the fiscal years 2008 through
2011
; and
in the second sentence—
by
striking for official reception and representation expenses
$3,000
and inserting $1,500,000 for additional personnel for
each of the fiscal years 2008 through 2011, and $3,000 for official reception
and representation expenses
; and
by
striking 2006 and 2007
and inserting 2008 through
2011
;
in subsection (b)(1), by striking
$5,000,000
and all that follows and inserting $15,000,000
for each of the fiscal years 2008 through 2011
;
in subsection (c)—
in paragraph (1)—
by
striking 2004, 2005, 2006, and 2007
each place it appears and
inserting 2008 through 2011
; and
in
subparagraph (B), by adding at the end the following: To carry out the
purposes of section 107(a)(1)(F), there are authorized to be appropriated to
the Secretary of State $500,000 for fiscal year 2008, $750,000 for fiscal year
2009, and $1,000,000 for each of the fiscal years 2010 and
2011.
;
by striking paragraph (2);
by redesignating paragraph (3) as paragraph (2); and
in paragraph (2), as redesignated—
by striking section 104
and
inserting sections 116(f) and 502B(h) of the Foreign Assistance Act of
1961 (22 U.S.C. 2151n(f) and 2304(h))
; and
by
striking , including the preparation
and all that follows and
inserting a period;
in subsection (d)—
in the first sentence, by striking
$10,000,000
and all that follows through 2007
and
inserting $15,000,000 for each of the fiscal years 2008 through
2011
; and
in the second sentence, by striking
$250,000
and all that follows through 2007
and
inserting $500,000 for each of the fiscal years 2008 through
2011
;
in subsection (e)—
in paragraph (1), by striking
$5,000,000
and all that follows and inserting $15,000,000
for each of the fiscal years 2008 through 2011.
;
in paragraph (2)—
by
striking section 109
and inserting section 134 of the
Foreign Assistance Act of 1961 (22 U.S.C. 2152d)
; and
by striking $5,000,000
and
all that follows and inserting $15,000,000 for each of the fiscal years
2008 through 2011.
; and
in paragraph (3),
by striking $300,000
and all that follows and inserting
$3,000,000 for each of the fiscal years 2008 through
2011.
;
in subsection (f), by striking
$5,000,000
and all that follows and inserting $15,000,000
for each of the fiscal years 2008 through 2011.
;
in subsection (h),
by striking fiscal year 2006
and inserting each of the
fiscal years 2008 through 2011
; and
in subsection (i), by striking
$18,000,000 for each of the fiscal years 2006 and 2007
and
inserting $18,000,000 for each of the fiscal years 2008 through
2011
.
Trafficking Victims Protection Reauthorization Act of 2005
The Trafficking Victims Protection Reauthorization Act of 2005 (Public Law 109–164) is amended—
in section
102(b)(7), by striking 2006 and 2007
and inserting 2008
through 2011
;
in section 201(c)—
in paragraph (1), by striking
$2,500,000 for each of the fiscal years 2006 and 2007
each place
it appears and inserting $3,000,000 for each of the fiscal years 2008
through 2011
; and
in paragraph (2), by striking 2006
and 2007
and inserting 2008 through 2011
;
in section 202(d),
by striking $10,000,000 for each of the fiscal years 2006 and
2007
and inserting $15,000,000 for each of the fiscal years 2008
through 2011
;
in section 203(g), by striking 2006
and 2007
and inserting 2008 through 2011
; and
in section 204(d), by striking 2006
and 2007
and inserting 2008 through 2011
.
Rule of construction
The amendments made by sections 301 and 302 may not be construed to affect the availability of funds appropriated pursuant to the authorizations of appropriations under the Trafficking Victims Protection Act of 2000 (division A of Public Law 106–386; 22 U.S.C. 7101 et seq.) and the Trafficking Victims Protection Reauthorization Act of 2005 (Public Law 109–164) before the date of the enactment of this Act.
Technical amendments
Trafficking Victims Protection Act of 2000
Sections 103(1) and 105(d)(7) of
the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7102(1) and
7103(d)(7)) are amended by striking Committee on International
Relations
each place it appears and inserting Committee on
Foreign Affairs
.
Trafficking Victims Protection Reauthorization Act of 2005
Section 102(b)(6)
and subsections (c)(2)(B)(i) and (e)(2) of section 104 of the Trafficking
Victims Protection Reauthorization Act of 2005 (Public Law 109–164) are amended
by striking Committee on International Relations
each place it
appears and inserting Committee on Foreign Affairs
.
Child Soldiers Prevention and Accountability
Short title
This title may be cited
as the Child Soldiers Prevention and
Accountability Act of 2008
.
Definitions
In this title:
Appropriate congressional committees
The term appropriate congressional committees means—
the Committee on Foreign Relations of the Senate;
the Committee on Appropriations of the Senate;
the Committee on Foreign Affairs of the House of Representatives; and
the Committee on Appropriations of the House of Representatives.
Child soldier
Consistent with the provisions of the Optional Protocol to the Convention of the Rights of the Child, the term child soldier—
means—
any person under 18 years of age who takes a direct part in hostilities as a member of governmental armed forces;
any person under 18 years of age who has been compulsorily recruited into governmental armed forces;
any person under 16 years of age who has been voluntarily recruited into governmental armed forces; or
any person under 18 years of age who has been recruited or used in hostilities by armed forces distinct from the armed forces of a state; and
includes any person described in clauses (ii), (iii), or (iv) of subparagraph (A) who is serving in any capacity, including in a support role such as a cook, porter, messenger, medic, guard, or sex slave.
Prohibition
In general
Subject to subsections (c), (d), and (e), none of the funds appropriated or otherwise made available for international military education and training, foreign military financing, or the transfer of excess defense articles under section 116 or 502B of the Foreign Assistance Act of 1961 (22 U.S.C. 2151n(f) and 2304(h)), the Arms Export Control Act (22 U.S.C. 2751), the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2008 (division J of Public Law 110–161) or under any other Act making appropriations for foreign operations, export financing, and related programs may be obligated or otherwise made available, and no licenses for direct commercial sales of military equipment may be issued to the government of a country that is clearly identified, in the Department of State’s Country Report on Human Rights Practices for the most recent year preceding the fiscal year in which the appropriated funds, transfer, or license, would have been used or issued in the absence of a violation of this title, as having governmental armed forces or government-supported armed groups, including paramilitaries, militias, or civil defense forces, that recruit and use child soldiers.
Notification to Countries in Violation of Standards
The Secretary of State shall formally notify any government identified pursuant to subsection (a).
National Interest Waiver
Waiver
The President may waive the application to a country of the prohibition in subsection (a) if the President determines that such waiver is in the national interest of the United States.
Publication and notification
Not later than 45 days after each waiver is granted under paragraph (1), the President shall publish such waiver in the Federal Register with the justification for granting such waiver.
Reinstatement of Assistance
The President may provide to a country assistance otherwise prohibited under subsection (a) upon certifying to the appropriate congressional committees that the government of such country—
has implemented measures that include an action plan and actual steps to come into compliance with the standards outlined in section 404(b); and
has implemented policies and mechanisms to prohibit and prevent future government or government-supported use of child soldiers and to ensure that no children are recruited, conscripted, or otherwise compelled to serve as child soldiers.
Exception for Programs Directly Related To Addressing the Problem of Child Soldiers or Professionalization of the Military
In general
The President may provide assistance to a country for international military education, training, and nonlethal supplies (as defined in section 2557(d)(1)(B) of title 10, United States Code) otherwise prohibited under subsection (a) upon certifying to the appropriate congressional committees that—
the government of such country is taking reasonable steps to implement effective measures to demobilize child soldiers in its forces or in government-supported paramilitaries and is taking reasonable steps within the context of its national resources to provide demobilization, rehabilitation, and reintegration assistance to those former child soldiers; and
the assistance provided by the United States Government to the government of such country will go to programs that will directly support professionalization of the military.
Limitation
The exception under paragraph (1) may not remain in effect for a country for more than 2 years.
Reports
Investigation of Allegations Regarding Child Soldiers
United States missions abroad shall thoroughly investigate reports of the use of child soldiers.
Information for Annual Human Rights Reports
In preparing those portions of the annual Human Rights Report that relate to child soldiers under sections 116 and 502B of the Foreign Assistance Act of 1961 (22 U.S.C. 2151n(f) and 2304(h)), the Secretary of State shall ensure that such reports include—
any determination that a government has violated the standards under this title; and
a description of the use of child soldiers in each foreign country, whether or not such use constitutes a violation of such standards, including—
trends toward improvement in such country of the status of child soldiers or the continued or increased tolerance of such practices; and
the role of the government of such country in engaging in or tolerating the use of child soldiers.
Annual report to Congress
Not later than June 15 of each of the 10 years following the date of the enactment of this Act, the President shall submit a report to the appropriate congressional committees that contains—
a list of the countries receiving notification that they are in violation of the standards under this title;
a list of any waivers or exceptions exercised under this title;
justification for any such waivers and exceptions; and
a description of any assistance provided under this title pursuant to the issuance of such waiver.
Implementation report
Not later than 180 days after the date of the enactment of this Act, the Secretary of State and the Secretary of Defense shall jointly submit a report to the appropriate congressional committees that—
sets forth a strategy and a program to assist governments that have expressed the political will to achieve the policy objectives described in this title; and
includes a description of an effective mechanism for coordination of United States Government efforts to implement this strategy.
Training for foreign service officers
Section 708 of the Foreign Service Act of 1980 (22 U.S.C. 4028) is amended by adding at the end the following:
The Secretary of State, with the assistance of other relevant officials, shall establish as part of the standard training provided for chiefs of mission, deputy chiefs of mission, and other officers of the Service who are or will be involved in the assessment of child soldier use or the drafting of the annual Human Rights Report, instruction on matters related to child soldiers, and the substance of the Child Soldiers Prevention and Accountability Act of 2008.
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Accountability for the recruitment and use of child soldiers
Crime for Recruiting or Using Child Soldiers
In general
Chapter 118 of title 18, United States Code, is amended by adding at the end the following:
Recruitment or use of child soldiers
Offense
Any person who knowingly recruits, enlists, or conscripts a person under 15 years of age into an armed force or group, or knowingly uses a person under 15 years of age to participate actively in hostilities—
shall be fined under this title, imprisoned not more than 20 years, or both; and
if the death of any person results, shall be fined under this title and imprisoned for any term of years or for life.
Attempt and conspiracy
Any person who attempts or conspires to commit an offense under this section shall be punished in the same manner as a person who completes the offense.
Jurisdiction
There is jurisdiction over an offense described in subsection (a), and any attempt or conspiracy to commit such offense, if—
the alleged offender is a national of the United States (as defined in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22))) or an alien lawfully admitted for permanent residence in the United States (as defined in section 101(a)(20) of such Act (8 U.S.C. 1101(a)(20));
the alleged offender is a stateless person whose habitual residence is in the United States;
the alleged offender is present in the United States, irrespective of the nationality of the alleged offender; or
the offense occurs in whole or in part within the United States.
Definitions
In this section:
Participate actively in hostilities
The term participate actively in hostilities means taking part in—
combat or military activities related to combat, including scouting, spying, sabotage, and serving as a decoy, a courier, or at a military checkpoint; or
direct support functions related to combat, including taking supplies to the front line and other services at the front line.
Armed force or group
The term armed force or group means any army, militia, or other military organization, whether or not it is state-sponsored, excluding any group assembled solely for nonviolent political association.
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Statute of limitations
Chapter 213 of title 18, United States Code, is amended by adding at the end the following:
Recruitment or use of child soldiers
No person may be prosecuted, tried, or punished for a violation of section 2442 unless the indictment or the information is filed not later than 10 years after the commission of the offense.
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Clerical amendments
Title 18, United States Code, is amended—
in the table of sections for chapter 118, by adding at the end the following:
Sec. 2442. Recruitment or use of child soldiers.
;
in the table of sections for chapter 213, by adding at the end the following:
Sec. 3300. Recruitment or use of child soldiers.
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Ground of Inadmissibility for Recruiting or Using Child Soldiers
Section 212(a)(3) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)) is amended by adding at the end the following:
Recruitment or use of child soldiers
Any alien who has engaged in the recruitment or use of child soldiers in violation of section 2442 of title 18, United States Code, is inadmissible.
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Ground of Removability for Recruiting or Using Child Soldiers
Section 237(a)(4) of the Immigration and Nationality Act (8 U.S.C. 1227(a)(4)) is amended by adding at the end the following:
Recruitment or use of child soldiers
Any alien who has engaged in the recruitment or use of child soldiers in violation of section 2442 of title 18, United States Code, is deportable.
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Asylum and withholding of removal
Not later than 60 days after the date of the enactment of this Act, the Attorney General shall promulgate final regulations establishing that, for purposes of sections 208(b)(2)(A)(iii) and 241(b)(3)(B)(iii) of the Immigration and Nationality Act (8 U.S.C. 1158(b)(2)(A)(iii) and 1231(b)(3)(B)(iii)), an alien who is inadmissible under section 212(a)(3)(G) of such Act or removable under section 237(a)(4)(F) of such Act shall be considered an alien with respect to whom there are serious reasons to believe that the alien committed a serious nonpolitical crime.
Effective date; applicability
This title, and the amendments made by this title, shall take effect 180 days after the date of the enactment of this Act and shall apply to funds obligated after such effective date.
September 8, 2008
Reported with amendments
