H.R. 4321 (111th): CIR ASAP Act of 2009

111th Congress, 2009–2010. Text as of Dec 15, 2009 (Introduced).

Status & Summary | PDF | Source: GPO

I

111th CONGRESS

1st Session

H. R. 4321

IN THE HOUSE OF REPRESENTATIVES

December 15, 2009

(for himself, Mr. Conyers, Mr. Serrano, Mr. Rangel, Mr. Pastor of Arizona, Mr. Stark, Mr. Gutierrez, Mr. Waxman, Mr. Becerra, Mr. Frank of Massachusetts, Ms. Roybal-Allard, Mr. Berman, Ms. Velázquez, Mrs. Christensen, Mr. Hinojosa, Mr. Towns, Mr. Reyes, Mr. Lewis of Georgia, Mr. Baca, Mr. Pallone, Mr. Gonzalez, Mr. Andrews, Mrs. Napolitano, Mr. McDermott, Mr. Grijalva, Mr. Engel, Mr. Cuellar, Mr. Faleomavaega, Mr. Salazar, Mr. Neal of Massachusetts, Mr. Sires, Mr. Abercrombie, Mr. Luján, Ms. Norton, Mr. Pierluisi, Mr. Moran of Virginia, Mr. Sablan, Mr. Nadler of New York, Mr. Olver, Ms. Waters, Ms. Corrine Brown of Florida, Mr. Farr, Mr. Filner, Mr. Gene Green of Texas, Mr. Hastings of Florida, Ms. Eddie Bernice Johnson of Texas, Mrs. Maloney, Mr. Rush, Mr. Scott of Virginia, Ms. Woolsey, Mr. Blumenauer, Mr. Fattah, Mr. Jackson of Illinois, Ms. Jackson-Lee of Texas, Mrs. Capps, Mr. Davis of Illinois, Ms. DeGette, Ms. Kilpatrick of Michigan, Mr. Kucinich, Ms. Lee of California, Mr. McGovern, Mr. Meeks of New York, Ms. Schakowsky, Ms. Berkley, Mr. Capuano, Mr. Crowley, Mr. Weiner, Mr. Clay, Mr. Honda, Mr. Israel, Ms. Watson, Ms. Bordallo, Mr. Meek of Florida, Mr. Cleaver, Mr. Al Green of Texas, Ms. Matsui, Ms. Moore of Wisconsin, Mr. Carson of Indiana, Ms. Clarke, Ms. Edwards of Maryland, Mr. Ellison, Ms. Fudge, Ms. Hirono, Mr. Johnson of Georgia, Mr. Perlmutter, Ms. Richardson, Mr. Welch, Ms. Chu, Mr. Heinrich, Ms. Pingree of Maine, Mr. Polis of Colorado, and Mr. Quigley) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committees on Homeland Security, Armed Services, Foreign Affairs, Natural Resources, Ways and Means, Education and Labor, Oversight and Government Reform, and House Administration, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL

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

1.

Short title; table of contents

(a)

Short title

This Act may be cited as the Comprehensive Immigration Reform for America’s Security and Prosperity Act of 2009, the Comprehensive Immigration Reform ASAP Act of 2009, or as the CIR ASAP Act of 2009.

(b)

Table of contents

The table of contents for this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Findings.

Sec. 3. Reference to the Immigration and Nationality Act.

Sec. 4. Definitions.

Sec. 5. Severability.

Title I—Border Security and Enforcement

Sec. 101. Sense of Congress.

Subtitle A—Border Security

Sec. 111. National Strategy for Border Security.

Sec. 112. Increase in number of Customs and Border Protection Officers.

Sec. 113. Improving ports of entry for border security and other purposes.

Sec. 114. Inventory of personnel.

Sec. 115. Standards of professional conduct.

Sec. 116. Inventory of assets.

Sec. 117. Customs border patrol and border protection assets.

Sec. 118. Technological assets.

Sec. 119. Secure communication.

Sec. 120. Surveillance plan.

Sec. 121. Surveillance technologies programs.

Sec. 122. Border security searches of electronic devices.

Sec. 123. Border relief grant program.

Sec. 124. Northern and Southern border drug prosecution initiative.

Sec. 125. Operation Streamline prosecution initiative.

Sec. 126. Project Gunrunner.

Sec. 127. Operation Armas Cruzadas.

Sec. 128. Combating human smuggling.

Sec. 129. Report on deaths and strategy study.

Sec. 130. United States-Mexico Border Enforcement Commission.

Sec. 131. Prohibition on military involvement in nonemergency border enforcement.

Sec. 132. Definitions.

Sec. 133. Border protection strategy.

Sec. 134. Actions to further secure operational control of the international land borders of the United States.

Sec. 135. Borderlands monitoring and mitigation.

Sec. 136. Border Communities Liaison Office.

Sec. 137. Office of Civil Rights and Civil Liberties and Office of Inspector General.

Sec. 138. Improving ports of entry for border security and other purposes.

Sec. 139. Ports of entry.

Sec. 140. Ports of entry infrastructure and operations assessment study.

Sec. 141. National Land Border Ports of Entry Security Plan.

Sec. 142. Ports of entry technology demonstration program.

Sec. 143. Reports on improving the exchange of information on North American security.

Sec. 144. Southern Border Security Task Force.

Sec. 145. Cooperation with the Government of Mexico.

Sec. 146. Enhanced international cooperation.

Sec. 147. Expansion of commerce security programs.

Sec. 148. Authorization of appropriations.

Subtitle B—Detention

Sec. 151. Definitions.

Sec. 152. Detention conditions.

Sec. 153. Specific detention requirements for short-term detention facilities.

Sec. 154. Rulemaking and enforcement.

Sec. 155. Immigration Detention Commission.

Sec. 156. Death in custody reporting requirement.

Sec. 157. Protection of community-based organizations, faith-based organizations and other institutions.

Sec. 158. Apprehension procedures for immigration-related enforcement activities.

Sec. 159. Protections against unlawful detentions of United States citizens.

Sec. 160. Basic protections for vulnerable populations.

Sec. 161. Report on protections for vulnerable populations impacted by immigration enforcement activities.

Sec. 162. Family Detention and Unity Protections.

Sec. 163. Apprehension procedures for families and parents.

Sec. 164. Child welfare services for children separated from parents detained or removed from the United States for immigration violations.

Sec. 165. Vulnerable population and child welfare training for immigration enforcement officers.

Sec. 166. Access for parents, legal guardians, and, primary caregiver relatives.

Sec. 167. Enhanced protections for vulnerable unaccompanied alien children and female detainees.

Sec. 168. Preventing unnecessary detention of refugees.

Sec. 169. Reports on protections from unlawful detention.

Sec. 170. Rulemaking.

Subtitle C—Enforcement

Sec. 181. Labor enforcement.

Sec. 182. Mandatory address reporting requirements.

Sec. 183. Preemption of State and local law.

Sec. 184. Delegation of immigration authority.

Sec. 185. Immigration and Customs Enforcement Ombudsman.

Sec. 186. Eliminating arbitrary bar to asylum.

Sec. 187. Restoration of judicial review.

Title II—Employment Verification

Sec. 201. Employment verification.

Sec. 202. Parity with Civil Rights Act of 1964.

Sec. 203. Amendments to the Social Security Act.

Title III—Visa Reforms

Sec. 301. Elimination of existing backlogs.

Sec. 302. Reclassification of spouses and minor children of legal permanent residents as immediate relatives.

Sec. 303. Country limits.

Sec. 304. Promoting family unity.

Sec. 305. Surviving relatives.

Sec. 306. Extension of waiver authority.

Sec. 307. Discretionary waiver for long-term lawful permanent residents.

Sec. 308. Continuous presence.

Sec. 309. Bar on the removal of certain refugees, parolees or asylees.

Sec. 310. Exemption from immigrant visa limit for certain veterans who are natives of Philippines.

Sec. 311. Fiancée or fiancé child status protection.

Sec. 312. Equal treatment for all stepchildren.

Sec. 313. Sons and daughters of Filipino World War II veterans.

Sec. 314. Determinations under the Haitian Refugee Immigration Fairness Act of 1998.

Sec. 315. Discretionary authority.

Sec. 316. Affidavit of support.

Sec. 317. Visa to prevent unauthorized migration.

Sec. 318. Adjustment of status.

Sec. 319. Rulemaking.

Sec. 320. United States-educated immigrants.

Sec. 321. Retaining workers subject to green card backlog.

Sec. 322. Return of talent program.

Title IV—Earned Legalization of Undocumented Individuals

Subtitle A—Conditional Nonimmigrants

Sec. 401. Conditional nonimmigrants.

Sec. 402. Adjustment of status for conditional nonimmigrants.

Sec. 403. Administrative and judicial review.

Sec. 404. Mandatory disclosure of information.

Sec. 405. Penalties for false statements in applications.

Sec. 406. Aliens not subject to direct numerical limitations.

Sec. 407. Employer protections.

Sec. 408. Limitations on eligibility.

Sec. 409. Rulemaking.

Sec. 410. Correction of Social Security records.

Sec. 411. Restoration of State option to determine residency for purposes of higher education benefits.

Sec. 412. Authorization of appropriations.

Subtitle B—Agricultural Job Opportunities, Benefits, and Security

Chapter 1—Title and Definitions

Sec. 421. Short title.

Sec. 422. Definitions.

Chapter 2—Pilot Program for Earned Status Adjustment of Agricultural Workers

Subchapter A—Blue card status

Sec. 431. Requirements for blue card status.

Sec. 432. Treatment of aliens granted blue card status.

Sec. 433. Adjustment to permanent residence.

Sec. 434. Applications.

Sec. 435. Waiver of numerical limitations and certain grounds for inadmissibility.

Sec. 436. Administrative and judicial review.

Sec. 437. Use of information.

Sec. 438. Regulations, effective date, authorization of appropriations.

Subchapter B—Correction of Social Security Records

Sec. 441. Correction of Social Security records.

Chapter 3—Reform of H–2A worker program

Sec. 451. Amendments to the Immigration and Nationality Act.

Chapter 4—Miscellaneous provisions

Sec. 461. Determination and use of user fees.

Sec. 462. Regulations.

Sec. 463. Reports to Congress.

Sec. 464. Effective date.

Title V—Strengthening the U.S. Economy and Workforce

Subtitle A—Immigration and Labor

Chapter 1—Immigration and labor markets

Sec. 501. Commission on Immigration and Labor Markets.

Sec. 502. Security and prosperity account.

Sec. 503. American recruit and match system.

Chapter 2—Protection of workers recruited abroad

Sec. 511. Protections for workers recruited abroad.

Sec. 512. Enforcement provisions.

Sec. 513. Procedures in addition to other rights of employees.

Sec. 514. Authority to prescribe regulations.

Sec. 515. Definitions.

Chapter 3—Technical correction

Sec. 521. Technical correction.

Subtitle B—Reforms of certain classes of employment-based visas

Chapter 1—H–1B visa fraud and abuse protections

Subchapter A—H–1B Employer Application Requirements

Sec. 531. Modification of application requirements.

Sec. 532. New application requirements.

Sec. 533. Application review requirements.

Subchapter B—Investigation and Disposition of Complaints against H–1B

Sec. 541. General modification of procedures for investigation and disposition.

Sec. 542. Investigation, working conditions, and penalties.

Sec. 543. Waiver requirements.

Sec. 544. Initiation of investigations.

Sec. 545. Information sharing.

Sec. 546. Conforming amendment.

Subchapter C—Other H–1B provisions

Sec. 551. Posting available H–1B positions through the Department of Labor.

Sec. 552. H–1B government authority and requirements.

Sec. 553. Additional Department of Labor employees.

Chapter 2—L–1 nonimmigrants

Sec. 561. Prohibition on outplacement of L–1 nonimmigrants.

Sec. 562. L–1 employer petition requirements for employment at new offices.

Sec. 563. Cooperation with Secretary of State.

Sec. 564. Investigation and disposition of complaints against L–1 employers.

Sec. 565. Wage rate and working conditions for L–1 nonimmigrant.

Sec. 566. Penalties.

Sec. 567. Prohibition on retaliation against L–1 nonimmigrants.

Sec. 568. Technical amendments.

Sec. 569. Reports on L–1 nonimmigrants.

Sec. 570. Application.

Sec. 571. Report on L–1 blanket petition process.

Sec. 572. Requirements for information for H–1B and L–1 nonimmigrants.

Chapter 3—Protection of H–2B nonimmigrants

Sec. 581. Enforcement of federal labor laws relating to H–2B nonagricultural guest workers.

Sec. 582. Recruitment of United States workers.

Sec. 583. Prevailing wages for United States workers and H–2B workers.

Sec. 584. Certification requirement.

Sec. 585. Protections for workers.

Sec. 586. Petitions by employers that have signed labor agreements with unions that operate hiring halls.

Sec. 587. H–2B nonimmigrant labor certification application fees.

Chapter 4—Adjustments to the EB–5 visa program

Sec. 591. Permanent reauthorization of EB–5 regional center program; application fee.

Sec. 592. Premium processing fee for EB–5 immigrant investors.

Sec. 593. Concurrent filing of EB–5 petitions and applications for adjustment of status.

Sec. 594. Improved set-aside for targeted employment areas.

Sec. 595. Set-aside of visas for regional center program.

Sec. 596. Extension.

Sec. 597. Study.

Sec. 598. Full-time equivalents.

Sec. 599. Eligibility for adjustment of status.

Sec. 599A. Expansion of EB–5 eligibility to include qualified immigrants who complete investment agreements.

Chapter 5—Effective date

Sec. 599B. Application.

Title VI—Integration of New Americans

Subtitle A—Citizenship Promotion

Sec. 601. Immigration service fees.

Sec. 602. Administration of tests for naturalization; fulfillment by elderly persons of requirement for naturalization relating to knowledge of english language.

Sec. 603. Voluntary electronic filing of applications.

Sec. 604. Timely background checks.

Sec. 605. National citizenship promotion program.

Sec. 606. Effective date.

Subtitle B—Miscellaneous

Sec. 611. Grants to support public education and community training.

Sec. 612. Grant program to assist applicants for naturalization.

Sec. 613. Naturalization for certain U.S. high school graduates.

Sec. 614. Family integration.

Sec. 615. Consideration for domestic resettlement of refugees.

Sec. 616. Credits for teachers of English language learners.

Sec. 617. Credits for employer-provided adult english literacy and basic education programs.

Sec. 618. Grants to States to form New American Councils.

Sec. 619. Independence Day Ceremonies for oaths of allegiance.

2.

Findings

Congress makes the following findings:

(1)

Federal immigration laws must uphold America’s long history of being a Nation of immigrants from every continent in the world, and reaffirm our Nation’s commitment to strong and united families, civil rights, economic opportunity and diversity.

(2)

The Government of the United States should reduce the deficit by ensuring that all individuals and employers pay their fair share of taxes and contribute equally to the prosperity of our great Nation.

(3)

The Government of the United States has an obligation to ensure the labor rights of all workers in our country, and end the driving down of wages and workplace standards that exists today due to our broken immigration system. Unscrupulous employers should not be able to profit off of the backs of a workforce with no voice in the workplace or civic society.

(4)

The Government of the United States also has an obligation to ensure the growth and vitality of honest American businesses that are playing by the rules and fueling our economic recovery.

(5)

The labor and immigration policies of the United States Government should be modernized to reflect the current needs of American workers and the American economy.

(6)

The Government of the United States cannot effectively carry out its national security policies unless it requires undocumented immigrants to come forward and participate fully in our communities and legally in the economy of the United States, so that enforcement efforts are concentrated on the truly bad actors.

(7)

Elimination of America’s immigrant workforce is not an effective or honest solution to Americas economic crisis. We need a solution that levels the playing field and promotes equal rights for all.

(8)

Dividing American families in not a moral or just solution to the broken immigration system. We need policies that treat all families equally and keep them together, to support each other and build strong communities.

(9)

Flawed immigration laws and persistent unequal administration of justice at the local level, based on race or national origin, has undermined effective community policing by discouraging the reporting of crime and cooperation with prosecutors in immigrant communities, due to well-founded fears of immigration enforcement action against them. This puts entire communities at risk and undermines public safety for all.

(10)

The Government of the United States should ensure that racial profiling and unequal administration of the law based on race or national origin is not permitted by any agency of Federal, State or local government bodies.

(11)

Our Government should ensure that our Nation’s borders are secure by investing in effective strategies, eliminating the millions of dollars currently being allocated to ineffective ones, and by requiring consultation with state and local communities on both the northern and southern borders before implementing new border enforcement strategies.

(12)

Foreign governments, particularly those that share an international border with the United States, must play a critical role in securing international borders and deterring illegal entry of foreign nationals into the United States.

(13)

The Government of the United States has an obligation to reaffirm its commitment to effective immigrant integration by supporting the teaching and promoting the learning of English.

(14)

Comprehensive immigration reform and strong enforcement of immigration laws will encourage legal immigration, deter illegal immigration, and promote the economic and national security interests of the United States.

3.

Reference to the Immigration and Nationality Act

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

4.

Definitions

In this Act:

(1)

Department

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

(2)

Secretary

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

5.

Severability

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

I

Border Security and Enforcement

101.

Sense of Congress

It is the sense of Congress that—

(1)

the Secretary of Homeland Security should establish a national strategic plan for short-term and long-term border security with improved accountability and transparency in agency functions;

(2)

the Secretary’s border security priorities must support and strengthen the significant advances in operational control of the border;

(3)

the Secretary must secure our Nation’s ports of entry and facilitate the flow of commerce and travel;

(4)

the ports of entry to the United States require additional assets, personnel, infrastructure and improvements in technology;

(5)

although states along the Southern and Northern borders play a unique role in supporting the Federal Government, border security and enforcement of the immigration laws are the responsibility of the Federal Government;

(6)

combating human smuggling, arms trafficking and drug trafficking are essential to border security;

(7)

protecting the economic and civic vitality of the border region is central to border security; and

(8)

effective border security depends on sustained international cooperation.

A

Border Security

111.

National Strategy for Border Security

(a)

Requirement for strategy

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

(b)

Content

The National Strategy for Border Security shall include the following:

(1)

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

(2)

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

(A)

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

(B)

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

(3)

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

(A)

a comprehensive assessment of risks in terms of cost, probability, and threats to society and risk prevention and response measures currently taken and potentially taken relative to that assessment of risks;

(B)

prevention efforts and response measures to address such risks, whether already underway or planned;

(C)

recommendations on realignment of programs, locations, and resources to best address the comprehensive assessment of risks.

(4)

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

(5)

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

(6)

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

(7)

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

(8)

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

(9)

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

(10)

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

(c)

Consultation

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

(1)

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

(2)

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

(d)

Coordination

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

(e)

Submission to Congress

(1)

Strategy

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

(2)

Updates

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

(f)

Immediate action

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

112.

Increase in number of Customs and Border Protection Officers

(a)

Customs and Border Protection Officers

During the 5-year period between fiscal years 2010 and 2014, the Secretary of Homeland Security shall, subject to the availability of appropriations for such purpose, increase by not fewer than 5,000 the total number of full-time, active-duty Customs and Border Protection Officers within United States Customs and Border Protection for posting at United States ports of entry above the number of such officers for which funds were made available during fiscal year 2009.

(b)

Agriculture specialists

During the 5-year period between fiscal years 2010 and 2014, the Secretary of Homeland Security shall, subject to the availability of appropriations for such border security purposes, increase by not fewer than a total of 1,200 the number of full-time Customs and Border Protection agriculture specialists for United States ports of entry above the number of such support personnel for which funds were made available during fiscal year 2009.

(c)

Border security support personnel

During the 5-year period between fiscal years 2010 and 2014, the Secretary of Homeland Security shall, subject to the availability of appropriations for such purpose, increase by not fewer than a total of 350 the number of full-time border security support personnel for United States ports of entry above the number of such support personnel for which funds were made available during fiscal year 2009.

113.

Improving ports of entry for border security and other purposes

(a)

In general

There are authorized to be appropriated to the Administrator of the General Services Administration $1,000,000,000 for each of fiscal years 2010 through 2014 to make improvements to existing ports of entry in the United States to improve border security and for other purposes.

(b)

Priority

In making improvements described in subsection (a), the Administrator of the General Services Administration, in coordination with the Commissioner of Customs and Border Protection, shall give priority to the ports of entry that the Administrator determines are in most need of repair to improve border security and for other purposes in accordance with port of entry infrastructure assessment studies required in section 603 of title VI, division E, of the Consolidated Appropriations Act of 2008 (Public Law 101–161).

114.

Inventory of personnel

(a)

Inventory

The Secretary shall identify and inventory the current personnel or other human resources dedicated to border security and enforcement prior to any increase in personnel or other human resources.

(b)

Report

The Secretary shall submit the inventory required in subsection (a) to the following congressional committees, 90 days after the enactment of this Act—

(1)

the Committee on Homeland Security and Governmental Affairs and the Committee on the Judiciary of the Senate;

(2)

the Committee on Homeland Security and the Committee on the Judiciary of the House of Representatives; and

(3)

the Committee on Oversight and Government Reform of the House of Representatives.

115.

Standards of professional conduct

(a)

Establishment of standards

Not more than 90 days after the date of enactment of this Act, the Secretary of Homeland Security shall establish clear standards of professional conduct for interaction with the public, for all Customs and Border Protection agents, U.S. Border Patrol agents, Immigration and Customs Enforcement agents, and Agricultural Inspectors stationed within 100 miles of all land and marine borders and at ports of entry.

(b)

Purpose

These standards of professional conduct will provide agents with a better understanding of the prohibitions and limitations pertaining to their conduct and activities while representing the Department of Homeland Security. These standards are intended to—

(1)

alert agents to some of the more sensitive and often problematic matters involved in agent conduct;

(2)

specify, where possible, actions and inactions that are contrary to and that conflict with the duties and responsibilities of Department of Homeland security agents; and

(3)

guide agents in conducting themselves in a manner that reflects standards of deportment and professionalism.

(c)

Standards

Department of Homeland Security agents stationed within 100 miles of all land and marine borders and at ports of entry—

(1)

shall not violate any law or any agency policy, rule, or procedure;

(2)

shall obey all lawful orders;

(3)

shall not engage in any conduct or activities on- or off-duty that reflect discredit on the agents, tend to bring the agency into disrepute, or impair its efficient and effective operation;

(4)

shall conduct themselves toward the public in a civil and professional manner that connotes a service orientation and that will foster public respect and cooperation;

(5)

shall treat violators, or perceived violators, with respect and courtesy, guard against employing an officious or overbearing attitude or language that may belittle, ridicule, or intimidate the individual, or act in a manner that unnecessarily delays the performance of their duty;

(6)

while recognizing the need to demonstrate authority and control over suspects and detainees, agents shall adhere to this agency’s use-of-force policy and shall observe the civil rights and protect the well-being of those in their charge; and

(7)

shall not use their agency powers to resolve personal grievances (e.g., those involving the officer, family members, relatives, or friends) with individuals. In cases where there is personal involvement with a member of the public that would reasonably require law enforcement intervention, agents shall summon other on-duty personnel and a supervisor.

(d)

Oversight and evaluation

The Department of Homeland Security shall develop and implement a plan that applies the aforementioned standards in officer evaluation and supervisor evaluation. This plan shall include the following provisions to ensure responsibility and protect civil rights:

(1)

Adherence to the standards of professional conduct shall be a central criterion in the change from probationary to journeyman status, as well as periodic evaluations and promotions of officers.

(2)

Managers and senior officers will be held responsible for—

(A)

performance according to these standards;

(B)

assessments of subordinates according to these standards; and

(C)

performance of their subordinates on these standards, with meaningful penalties to supervisors for failures of subordinates to adhere to such standards.

(3)

The Department shall establish strong penalties for failures to follow the standards of professional conduct that were unaddressed until exposed by complaint processes or Inspector General investigations. However, organizational peers and superiors who uncover and act on failures or abuses shall be exempt from such penalties.

(4)

Agents should not be indemnified when it is determined that a violation of civil rights standards occurred.

(e)

Exception

The standards of conduct set forth in this section are not intended to serve as an exhaustive treatment of requirements, limitations, or prohibitions on agent conduct and activities established by the Secretary of Homeland Security.

(f)

Notice

The standards of conduct established under this section shall be posted at all ports of entry in locations easily viewed by members of the public.

(g)

Complaints

Not more than 180 days after enactment, the Secretary shall, in consultation with the Office of Civil Rights and Civil Liberties, establish a uniform and standardized process for the public regarding complaints against all Customs and Border Protection agents, U.S. Border Patrol agents, and Agricultural Inspectors for violations of standards of professional conduct. The complaint process shall—

(1)

quickly review, effectively investigate, meaningfully resolve complaints and identify patterns of abuse or malfeasance and be accessible, transparent, consistent, effective, and fair;

(2)

apply uniformly to all Border Patrol Sectors and Ports of Entry;

(3)

specify to whom, how, and where complaints are to be filed;

(4)

be visible to the public at all ports of entry and interior checkpoints, and be accessible in multiple languages;

(5)

receive staff and funding commensurate with the quantity of complaints submitted and with the funding disbursed to Department enforcement initiatives;

(6)

establish a publicly accessible national, standardized database capable of tracking and analyzing complaints and their resolution; and

(7)

provide publicly accessible records, with copies of complaints and their resolutions permanently preserved and available for inspection, while maintaining the confidentiality of complainants’ identities.

(h)

Complainants

The following shall apply to all complainants:

(1)

Any interested party may file a complaint through the complaint procedure, including a legal representative.

(2)

Complainants shall be protected from retaliatory action by law enforcement.

(3)

No officer of the US may use the information from a complaint to initiate removal proceedings or removals against any person filing a complaint or identified in the complaint, nor remove any individual involved in a complaint while the complaint is pending.

(4)

There shall be no publication of information to related to an individual involved in a complaint which would result in identification of the individual.

(5)

Complainants shall receive full assistance from the Department in filing complaints, including language assistance, accommodations for disabilities, and accurate and complete responses to their questions.

(i)

Reporting

The Secretary shall report annually to the following Congressional Committees on the number and type of complaints received in each sector, demographic of complainants, results of investigations including violations of standards and any disciplinary actions taken, and identifying any complaint patterns that could be prevented or reduced by policy or practice changes—

(1)

the Committee on Homeland Security and Governmental Affairs and the Committee on the Judiciary of the Senate;

(2)

the Committee on Homeland Security and the Committee on the Judiciary of the House of Representatives; and

(3)

the Committee on Oversight and Government Reform of the House of Representatives.

116.

Inventory of assets

(a)

Inventory

The Secretary shall identify and inventory the current assets, equipment, supplies, or other physical resources dedicated to border security and enforcement prior to any increase in assets, equipment, supplies or other physical resources.

(b)

Report

The Secretary shall submit the inventory required in subsection (a) to the following congressional committees, 90 days from the enactment of this Act—

(1)

the Committee on Homeland Security and Governmental Affairs and the Committee on the Judiciary of the Senate;

(2)

the Committee on Homeland Security and the Committee on the Judiciary of the House of Representatives; and

(3)

the Committee on Oversight and Government Reform of the House of Representatives.

117.

Customs border patrol and border protection assets

(a)

Personal equipment

(1)

Body armor

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

(2)

Weapons

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

(3)

Uniforms

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

(b)

Helicopters and power boats

(1)

Helicopters

The Secretary shall conduct a review of asset needs, and if determined to be insufficient, shall increase the number of helicopters under the control of the Border Patrol. The Secretary shall ensure that appropriate types of helicopters are procured for the various missions being performed.

(2)

Power boats

The Secretary shall conduct a review of asset needs and if determined to be insufficient, shall increase the number of power boats under the control of the Border Patrol. The Secretary shall ensure that the types of power boats that are procured are appropriate for both the waterways in which they are used and the mission requirements.

(3)

Use and training

The Secretary shall—

(A)

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

(B)

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

(c)

Motor vehicles

(1)

Quantity

The Secretary shall conduct a review of asset needs and if determined to be insufficient, establish a fleet of motor vehicles appropriate for use by the Border Patrol. The Secretary shall ensure that there are sufficient numbers and types of other motor vehicles to support the mission of the Border Patrol.

(2)

Features

All motor vehicles purchased for the Border Patrol shall—

(A)

be appropriate for the mission of the Border Patrol; and

(B)

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

(d)

Electronic equipment

(1)

Portable computers

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

(2)

Radio equipment

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

(3)

Handheld global positioning system devices

The Secretary shall ensure that each Border Patrol agent who is determined by the Secretary to need a handheld global positioning device to effectively and safely carry out his or her duties is issued a state-of-the-art handheld global positioning system device for navigational purposes.

(4)

Night vision equipment

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

(e)

Appropriations

There are authorized to be appropriated to the Secretary such sums as may be necessary for each of fiscal years 2011 through 2015 to carry out this section.

118.

Technological assets

(a)

Increased availability of equipment

The Secretary and the Secretary of Defense shall analyze use of authorities provided to the Secretary of Defense under chapter 18 of title 10, United States Code, and whether to increase the availability and use of Department of Defense equipment, including unmanned aerial vehicles, tethered aerostat radars, and other surveillance equipment, to assist the Secretary in carrying out surveillance activities conducted at or near the international land borders of the United States to deter criminal activity and terrorist threats.

(b)

Report

Not later than 180 days after the date of enactment of this Act, the Secretary and the Secretary of Defense shall submit to Congress a report that contains

(1)

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

(2)

an analysis of projected future use of Department of Defense equipment to assist such surveillance activities, including any increases;

(3)

an analysis of the types of equipment and other support to be provided by the Secretary of Defense under such plan during the one-year period beginning on the date of the submission of the report;

(4)

an analysis of costs and cost-effectiveness related to any increase in the availability and use of Department of Defense equipment; and

(5)

an analysis of projected schedules for implementation.

(c)

Construction

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

(d)

Authorization of Appropriations

There are authorized to be appropriated to the Secretary such sums as may be necessary for each of fiscal years 2011 through 2015 to carry out this section.

119.

Secure communication

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

(1)

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

(2)

between Border Patrol agents and their respective Border Patrol stations;

(3)

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

(4)

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

120.

Surveillance plan

(a)

Requirement for plan

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

(b)

Content

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

(1)

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

(2)

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

(3)

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

(4)

A description of the specific surveillance technology to be deployed.

(5)

Identification of any obstacles that may impede such deployment.

(6)

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

(7)

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

(8)

A description of the demonstration program to fully integrate and utilize aerial surveillance technologies developed pursuant to section 121(a).

(9)

A description of the Integrated and Automated Surveillance demonstration program established pursuant to section 121(b).

(c)

Submission to Congress

Not later than 180 days after the date of enactment of this Act, the Secretary shall submit to Congress the plan required by this section.

121.

Surveillance technologies programs

(a)

Aerial surveillance demonstration program

(1)

In general

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

(2)

Assessment and consultation requirements

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

(A)

consider current and proposed aerial surveillance technologies;

(B)

assess the feasibility and advisability of utilizing such technologies to address border threats, including an assessment of the technologies considered best suited to address respective threats, cost-effectiveness, reliability, and minimal impact on border residential areas;

(C)

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

(D)

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

(E)

conduct a privacy impact assessment with the Officer for Civil Rights and Civil Liberties with the Department that includes recommendations with respect to ensuring the civil liberties and civil rights of individuals in surrounding communities.

(3)

Additional requirements

(A)

In general

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

(i)

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

(ii)

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

(iii)

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

(4)

Continued use of aerial surveillance technologies

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

(5)

Report to congress

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

(b)

Integrated and automated surveillance demonstration program

(1)

Requirement for program

Subject to the availability of appropriations, the Secretary shall establish a demonstration program to procure additional unmanned aerial vehicles, cameras, poles, sensors, satellites, radar coverage, and other technologies necessary to enhance operational control of the international borders of the United States. Such program shall be known as the Integrated and Automated Surveillance Demonstration Program.

(2)

Program components

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

(A)

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

(B)

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

(C)

such camera views and positions are not fixed;

(D)

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

(E)

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

(F)

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

(G)

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

(H)

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

(I)

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

(J)

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

(3)

Report to congress

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

(4)

Evaluation of contractors

(A)

Requirement for standards

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

(B)

Review by the inspector general

(i)

In general

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

(ii)

Reports

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

(5)

Authorization of appropriations

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

122.

Border security searches of electronic devices

(a)

Rule

Not later than 180 days after the date of the enactment of this Act, the Secretary, acting through the Commissioner of United States Customs and Border Protection, in coordination with the Assistant Secretary of Homeland Security for United States Immigration and Customs Enforcement and the senior official appointed pursuant to section 222 of the Homeland Security Act of 2002 (6 U.S.C. 142), shall issue a rule with respect to the scope of and procedural and record keeping requirements associated with border security searches of electronic devices.

(b)

Content

The rule issued pursuant to subsection (a) shall include the following:

(1)

A requirement that information collected during a border security search of an electronic device that is determined to be commercial information, including trade secrets, information subject to attorney-client privilege, information subject to doctor-patient privilege, or information subject to another privilege or protection shall be handled consistent with the laws, rules, and regulations governing such information and shall not be shared with a Federal, State, local, tribal, or foreign agency unless it is determined that such agency has the mechanisms in place to comply with such laws, rules, and regulations.

(2)

A requirement that authorized agents, to the greatest extent practicable, conduct all border security searches of electronic devices at a port of entry in the presence of a supervisor and, where appropriate, in the presence of the individuals whose electronic devices are subject to such searches.

(3)

A determination of the number of days that an electronic device subjected to a border security search or the information collected from such device may be retained, unless probable cause exists, that prohibits retention exceeding the period necessary to translate, decrypt, or reasonably search such device or information and that requires such information to be destroyed if in the custody of an authorized agent after such number of days.

(4)

A requirement that if information collected from an electronic device subjected to a border security search is copied, shared, retained, or entered into an electronic database, the individual from whose electronic device such information is collected shall receive written notification of such copying, sharing, retention, or entry unless such notification would hinder an investigation involving national security or would meet another criteria established by the Secretary in the rule.

(5)

A requirement that an individual subjected to a border security search of an electronic device shall receive a receipt for such device if such device is removed from the possession of such individual.

(6)

A requirement that an individual subjected to a border security search of an electronic device shall receive notice of how to report abuses or concerns and how to seek redress from the Department of Homeland Security.

(7)

A requirement that information on the rights of individuals with respect to border security searches and Department of Homeland Security redress procedures shall be posted at all ports of entry in locations that are likely to be viewed by individuals subject to border security searches.

(8)

A privacy impact assessment of the rule, as prepared by the senior official appointed pursuant to section 222 of the Homeland Security Act of 2002, that includes recommendations with respect to the copying, sharing, retention, and entry into an electronic database of personally identifiable information collected from electronic devices subjected to a border security search.

(9)

A civil liberties impact assessment of the rule, as prepared by the Officer for Civil Rights and Civil Liberties of the Department of Homeland Security.

(c)

Training and auditing with respect to searches

(1)

Training

The Secretary shall provide each authorized agent with appropriate training to conduct border security searches of electronic devices at ports of entry in accordance with the rule issued pursuant to subsection (a). The training shall include instruction on constitutional, privacy, civil rights, and civil liberties issues related to such searches.

(2)

Auditing

The Secretary, acting through the Inspector General of the Department of Homeland Security, shall develop and annually administer an auditing mechanism to review whether authorized agents are conducting border security searches of electronic devices at ports of entry in accordance with the rule issued pursuant to subsection (a).

(d)

Report

Not later than 180 days after the effective date of the rule issued pursuant to subsection (a), and quarterly thereafter, the Secretary shall submit to the Committee on Homeland Security of the House of Representatives and to the Committee on Homeland Security and Governmental Affairs of the Senate a report that shall include the following:

(1)

A description of the activities of authorized agents with respect to border security searches of electronic devices at ports of entry.

(2)

A description of the manner in which the Department of Homeland Security has complied with this Act.

(3)

The number, by port of entry, of border security searches of electronic devices at ports of entry conducted during the reporting period.

(4)

The number, by port of entry, of instances during the reporting period that information from an electronic device subjected to a border security search was retained, copied, shared, or entered in an electronic database, including the number of electronic devices retained as the result of a border security search.

(5)

The race, ethnicity, national origin, and citizenship of each individual whose electronic device was subjected to a border security at a port of entry search during the reporting period, to determine the existence or absence of racial profiling.

(6)

The number of instances during the reporting period that information collected from an electronic device subjected to a border security search at a port of entry was referred to a law enforcement or intelligence agency for further action, including whether such information resulted in a prosecution or conviction.

(e)

Definitions

In this section, the following definitions apply:

(1)

Authorized agent

The term authorized agent means an agent, officer, or official of United States Customs and Border Protection, United States Immigration and Customs Enforcement, or any other office or agency of the Department of Homeland Security who is authorized to conduct a border security search.

(2)

Border security search

The term border security search means a search by an authorized agent of persons, baggage, or cargo entering, departing, or passing through the United States through any port of entry.

(3)

Electronic device

The term electronic device means an electronic, magnetic, optical, electrochemical, or other high-speed data processing device performing logical, arithmetic, or storage functions, such as a computer, a cellular telephone, or any other device used for electronic communication or for storing electronic, digital or analog data, and which includes any data storage facility or communications facility directly related to or operating in conjunction with such device.

123.

Border relief grant program

(a)

Grants Authorized

(1)

In general

The Attorney General is authorized to award grants to—

(A)

eligible law enforcement agencies, or a coalition of such agencies, including sheriff’s offices, police departments and tribal police departments; and

(B)

institutions of higher education that provide assistance to law enforcement agencies in counties described in subparagraph (A) or (B) of subsection (d)(1) to provide the resources described in subsection (b)(4).

(2)

Competitive basis

The Attorney General shall award grants under this section on a competitive basis.

(3)

Priority

In awarding grants for the uses described in paragraphs (1) through (3) of subsection (b), the Attorney General shall give priority to law enforcement agencies:

(A)

located in a county that is within 100 miles from the United States border with Mexico or Canada; and

(B)

in compliance with Federal and State racial profiling laws and guidelines.

(4)

Duration

Grants awarded under this section shall not exceed two years. Prior awardees must reapply to be considered for continued funding.

(5)

Prohibition

The Attorney General shall not award a grant to any applicant that is under investigation for violations of federal or state racial profiling laws or guidelines.

(b)

Use of Funds

Grants awarded under this section may only be used to provide additional resources for eligible law enforcement agencies to address drug-related criminal activity, and for the training and assistance described in paragraph (4) for organizations described in subsection (a)(3), including resources to—

(1)

combat criminal activities along the Northern and Southern border by—

(A)

obtaining, upgrading, or maintain equipment;

(B)

hiring additional personnel;

(C)

reimbursing operational expenditures, including overtime and transportation costs; and

(D)

providing other assistance necessary to address drug-related criminal activity;

(2)

facilitate information sharing and collaboration by—

(A)

establishing, maintaining, or enhancing multi-jurisdictional intelligence gathering and sharing activities;

(B)

facilitating regional crime prevention and reduction efforts; and

(C)

strengthening partnerships between Federal, tribal, State, and local law enforcement agencies;

(3)

enhance jails, community corrections, and detention operations by—

(A)

improving the administration and operations of correction functions related to reducing and preventing criminal narcotics activity;

(B)

improving access to intelligence and collaboration between law enforcement and correctional system personnel;

(C)

reducing the recidivism rates of drug offenders; and

(D)

hiring detention, probation, parole, and other corrections personnel for implementation of the efforts described in this paragraph; and

(4)

provide training and technical assistance, including training and assistance related to—

(A)

narcotics-related kidnapping negotiation and rescue tactics;

(B)

intelligence and information sharing on drug trafficking organizations; and

(C)

the interdiction of narcotics, weapons, and illegal drug proceeds.

(c)

Application

(1)

In general

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

(2)

Contents

Each application submitted under paragraph (1) shall—

(A)

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

(B)

disclose whether the applicant has ever been investigated for or convicted of violation of Federal or State racial profiling laws or guidelines; and

(C)

provide such additional assurances as the Attorney General determines to be essential to ensure compliance with the requirements under this section.

(d)

Monitoring and oversight

(1)

Each grantee shall submit to the Attorney General documentation of the use of grant funds, including an assessment of their utility in protecting border community safety, the prevention of smuggling activities, and the apprehension of persons involved in violence and organized crime.

(2)

These reports will determine whether the grantee uses funds appropriately and should be considered for a renewal grant.

(e)

Definitions

In this section:

(1)

Eligible law enforcement agency

The term eligible law enforcement agency means a tribal, State, or local law enforcement agency, including a community corrections agency and any agency that employs prosecutors, probation officers, or parole officers, which is located or performs duties in—

(A)

a county that is not more than 100 miles from a United States border with Mexico;

(B)

a county that is not more than 100 miles from a United States border with Canada; or

(C)

a jurisdiction that has been designated by the Director of the Office of Drug Control Policy as a High Intensity Drug Trafficking Area.

(2)

High intensity drug trafficking area

The term High Intensity Drug Trafficking Area means any jurisdiction designated as a High Intensity Drug Trafficking Area by the National Drug Control Program under section 707 of the Office of National Drug Control Policy Reauthorization Act of 1998 (21 U.S.C. 1706).

(f)

Assessment and report

The Attorney General shall submit a bi-annual report assessing the success of the program in combating and reducing drug-trafficking and drug-related criminal activity, cost-effectiveness of the program, and future value and viability of the program to—

(1)

the Committee on the Judiciary of the House of Representatives; and

(2)

the Committee on the Judiciary of the Senate.

(g)

Authorization of appropriations

(1)

In general

There are authorized to be appropriated $100,000,000 for each of the fiscal years 2011 through 2015 to carry out the provisions of this section.

(2)

Allocation of authorized funds

Of the amounts appropriated pursuant to paragraph (1)—

(A)

not more than 33 percent may be set aside for High Intensity Drug Trafficking Areas; and

(B)

not more than 30 percent may be used for activities described in paragraphs (3) and (4) of subsection (b).

(3)

Supplement not supplant

Amounts appropriated for grants pursuant to paragraph (1) shall be used to supplement and not to supplant other tribal, State, and local public funds obligated for the purposes provided under this section.

124.

Northern and Southern border drug prosecution initiative

(a)

Reimbursement to state and local prosecutors for prosecuting federally initiated drug cases

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

(b)

Authorization of Appropriations

There are authorized to be appropriated such sums as necessary for each of the fiscal years 2011 through 2015 to carry out subsection (a).

125.

Operation Streamline prosecution initiative

(a)

Suspension of operation streamline

The Secretary shall suspend the program pending submission of the report in subsection (b) to the relevant congressional committees in subsection (c) and a revaluation of the program’s future viability.

(b)

Reporting requirement

Not later than 180 days after the date of the enactment of this Act, the Secretary of Homeland Security, in coordination with the Attorney General, shall submit a report to the relevant congressional committees set forth in subsection (c) that provides details about—

(1)

operational goals and oversight mechanisms of Operation Streamline and similar programs;

(2)

costs of seeking Federal court prosecution and jail time for all illegal entrants prior to referral to immigration court removal proceedings, as compared to initial referral of such entrants to immigration courts upon apprehension;

(3)

costs of detentions, prosecutions, and incarcerations for immigrant offenses under Operation Streamline programs over the three years prior to enactment of this Act;

(4)

cost estimates for federal resources that would be necessary to implement Operation Streamline effectively in each Border Patrol sector, including sufficient judicial resources, Federal Public Defenders, U.S. Marshals, detention facilities, United States Attorneys, and costs already being incurred in active areas;

(5)

the impact of Operation Streamline programs on federal prosecutorial initiatives focused on curbing border violence, including enhanced use of investigations and prosecutions for money laundering or other financial offenses to disrupt the illicit firearms trade, human smuggling, and cross-border drug and currency trafficking;

(6)

the impact of Operation Streamline programs on discretionary prosecutorial decisions;

(7)

the numbers of Federal prosecutions for drug trafficking, human smuggling, white-collar, civil rights, environmental, and other criminal cases over the three years prior to enactment of this Act in areas utilizing Operation Streamline initiatives;

(8)

lengths of imprisonment, names, convictions, and locations of prisons used for those arrested under Operation Streamline programs over the three years prior to enactment of this Act;

(9)

Federal convictions obtained under Operation Streamline including number of non-violent immigration offenses;

(10)

comparison of rates of Federal prosecutions and convictions in districts along the southern border in relation to other districts nationwide; and

(11)

interviews with criminal defense attorneys who have represented defendants charged under Operation Streamline, including review of the opportunity of arrestees to consult with immigration attorneys prior to conviction, and the ratio of defendants to defense attorneys.

(c)

Relevant congressional committees in this section

(1)

The Committee on Appropriations of the Senate.

(2)

The Committee on the Judiciary of the Senate.

(3)

The Committee on Appropriations of the House of Representatives.

(4)

The Committee on the Judiciary of the House of Representatives.

(5)

The Committee on Homeland Security and Governmental Affairs of the Senate.

(6)

The Committee on Homeland Security of the House of Representatives.

(d)

Re-evaluation of program

The Secretary of Homeland Security, in coordination with the Attorney General, shall have 180 additional days, after submission of the report in subsection (b) to the relevant congressional committees, to re-evaluate the future viability of the program. At the end of the 180 day period, the Secretary shall determine whether to continue or terminate the program.

126.

Project Gunrunner

(a)

In general

The Attorney General shall dedicate and expand the resources provided for the Project Gunrunner initiative of the Bureau of Alcohol, Tobacco, Firearms, and Explosives to identify, investigate, and prosecute individuals involved in the trafficking of firearms across the international border between the United States and Mexico.

(b)

Activities

In carrying out this section, the Attorney General shall

(1)

assign additional agents of the Bureau of Alcohol, Tobacco, Firearms, and Explosives to the area of the United States adjacent to the international border between the United States and Mexico to support the expansion of Project Gunrunner teams;

(2)

establish not fewer than one Project Gunrunner team in each State along the international border between the United States and Mexico; and

(3)

coordinate with the heads of other relevant Federal law enforcement agencies and State and local law enforcement agencies to address firearms trafficking in a comprehensive manner.

(c)

Additional staff

The Attorney General may hire Bureau of Alcohol, Tobacco, Firearms, and Explosives agents for, and otherwise expend additional resources needed to adequately support, Project Gunrunner.

(d)

Authorization of Appropriations

There is authorized to be appropriated $15,000,000 for each of fiscal years 2011 and 2015 to carry out this section.

127.

Operation Armas Cruzadas

(a)

In General

In accordance with subsection (b), the Secretary of Homeland Security shall dedicate and expand the resources provided for Operation Armas Cruzadas of United States Immigration and Customs Enforcement (ICE) to identify, investigate, and prosecute individuals involved in the trafficking and smuggling of firearms across the international border between the United States and Mexico.

(b)

Resources

To achieve the goal described in subsection (a), the Secretary of Homeland Security shall—

(1)

increase the number of ICE agents assigned to Operation Armas Cruzadas over the number of such agents who are so assigned as of the date of the enactment of this section;

(2)

increase the number of Border Enforcement Security Task Force (BEST) teams stationed along the border over the number of such teams so stationed as of the date of the enactment of this section; and

(3)

coordinate with the heads of other relevant Federal, State, and local law enforcement agencies to address firearms trafficking in a comprehensive manner.

(c)

Authorization of appropriations

There is authorized to be appropriated $15,000,000 for each of fiscal years 2011 and 2012 to carry out this section.

128.

Combating human smuggling

(a)

Requirement for plan

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

(b)

Content

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

(1)

the interoperability of databases utilized to prevent human smuggling;

(2)

adequate and effective personnel training, including methods to ascertain crime victims and vulnerable populations as described in subtitle B of this title;

(3)

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

(4)

effective utilization of—

(A)

visas for victims of trafficking and other crimes; and

(B)

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

(5)

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

(6)

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

(c)

Report

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

129.

Report on deaths and strategy study

(a)

In general

The Commissioner of the United States Customs and Border Protection shall do the following:

(1)

Collection of statistics

Collect statistics relating to deaths occurring at the border between the United States and Mexico, including—

(A)

the causes of the deaths; and

(B)

the total number of deaths.

(2)

Publication of statistics

Publish the statistics collected in paragraph (1) quarterly.

(3)

Report

Not later than 1 year after the date of enactment of this Act, and annually thereafter, submit to the Secretary a report that—

(A)

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

(B)

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

(b)

Southwest border strategy study & analysis

The Secretary shall conduct a study of Southwest Border Enforcement operations since 1994 and its relationship to death rates on the US-Mexico border.

(1)

Substance

The study shall include—

(A)

an analysis on the relationship of border enforcement and deaths on the border;

(B)

an analysis of whether physical barriers, technology, and enforcement programs have contributed to the rate of migrant deaths;

(C)

an analysis of the effectiveness of geographical terrain as a natural barrier for entry into the United States in achieving Department goals and its role in contributing to rates of migrant deaths; and

(D)

consultation with nongovernmental organizations and other community stakeholders involved in recovering and identifying migrant deaths; and

(E)

an assessment of existing protocol related to reporting, tracking and inter-agency communications between CBP and local first responders and consular services.

(2)

Report

The studies shall be submitted to—

(3)

the United States-Mexico Border Enforcement Commission as established in section 130;

(4)

the Committee on Homeland Security and Governmental Affairs and the Committee on the Judiciary of the Senate;

(5)

the Committee on Homeland Security and the Committee on the Judiciary of the House of Representatives; and

(6)

the Committee on Oversight and Government Reform of the House of Representatives.

(c)

Authorization of appropriations

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

130.

United States-Mexico Border Enforcement Commission

(a)

Establishment of commission

(1)

In general

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

(2)

Purposes

The purposes of the Commission are—

(A)

to study the overall enforcement strategies, programs and policies of Federal agencies along the United States-Mexico border, including the Department of Homeland Security, Justice and other relevant agencies;

(B)

to strengthen relations and collaboration between communities in the border regions and the Department of Homeland Security, Justice and other Federal agencies that carry out such strategies, programs and policies;

(C)

to ensure the strategies, programs and policies of Federal agencies along the United States-Mexico border and the agents and employees charged to implement them protect the due process and civil and human rights of all individuals and communities at and near the border; and

(D)

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

(3)

Membership

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

(A)

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

(i)

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

(ii)

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

(iii)

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

(B)

2 nonvoting members, of whom—

(i)

1 shall be appointed by the Secretary; and

(ii)

1 shall be appointed by the Attorney General.

(4)

Qualifications

(A)

In general

Members of the Commission shall be—

(i)

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

(ii)

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

(B)

Political affiliation

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

(C)

Nongovernmental appointees

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

(5)

Deadline for appointment

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

(6)

Term of service

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

(7)

Vacancies

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

(8)

Meetings

(A)

Initial meeting

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

(B)

Subsequent meetings

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

(C)

Outreach

The Commission shall formulate and implement an effective outreach strategy to border communities.

(9)

Quorum

Nine members of the Commission shall constitute a quorum.

(10)

Chair and vice chair

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

(11)

Structure

The Review Commission will have a Federal, regional and local review structure, and will be divided into two subcommittees—one focused on border technology, equipment and infrastructure, and a second to focus on border and immigration enforcement policies and programs.

(b)

Duties

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

(1)

the compliance of the Department of Homeland Security and other immigration and border-related agencies with existing laws and regulations;

(2)

the extent to which agency policies and practices protect the civil rights of migrants and border community residents, including but not limited to the contexts of engagement, detention, apprehension, use of force, definition and use of reasonable suspicion and probable cause, and racial profiling;

(3)

the frequency, adequacy and effectiveness of human and civil rights training of border enforcement personnel and others from Federal agencies who have contact with the public in the border regions;

(4)

the complaint process and the extent to which the process is transparent and accessible to the public, investigations are opened as necessary and effectively pursued and complaints are resolved in a timely and transparent manner;

(5)

the effectiveness and capacity of agency oversight, accountability, and management including prevention and disciplinary policies involving use of force, abuse, malfeasance, corruption and illegal activity,

(6)

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

(A)

environment;

(B)

crossborder traffic and commerce;

(C)

privacy rights and other civil liberties; and

(D)

the quality of life of border communities;

(7)

the extent to which State and local law enforcement engage in the enforcement of Federal immigration law;

(8)

the extent of compliance with due process standards and equal protection of the law for immigrants and other individuals at and near the border;

(9)

whether border policies and agencies are accomplishing their stated goals; and

(10)

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

(c)

Powers of commission

(1)

In general

(A)

Hearings and evidence

The Commission or, on the authority of the Commission, any subcommittee or member thereof, may, for the purpose of carrying out this title—

(i)

hold such hearings and sit and act at such times and places, take such testimony, receive such evidence, administer such oaths; and

(ii)

subject to paragraph (2)(A), require, by subpoena or otherwise, the attendance and testimony of such witnesses and the production of such books, records, correspondence, memoranda, papers, and documents, as the Commission or such designated subcommittee or designated member may determine advisable.

(B)

Subpoenas

(i)

Issuance

A subpoena may be issued under this subsection only—

(I)

by the agreement of the chairman and the vice chairman; or

(II)

by the affirmative vote of 6 members of the Commission.

(ii)

Signature

Subject to clause (i), subpoenas issued under this subsection may be issued under the signature of the chairman or any member designated by a majority of the Commission, and may be served by any person designated by the chairman or by a member designated by a majority of the Commission.

(iii)

Enforcement

In the case of contumacy or failure to obey a subpoena issued under subsection (a), the United States district court for the judicial district in which the subpoenaed person resides, is served, or may be found, or where the subpoena is returnable, may issue an order requiring such person to appear at any designated place to testify or to produce documentary or other evidence. Any failure to obey the order of the court may be punished by the court as a contempt of that court.

(2)

Recommendations

(A)

The Commission has the ability to make recommendations to the Secretary of Homeland Security on the disposition of cases and discipline of personnel under the Immigration and Naturalization Act.

(B)

Within 180 days of receipt of a Commission report, the Secretary of Homeland Security shall issue a response, which shall describe how the Department of Homeland Security, the Department of Justice, and the Department of Defense have addressed the recommendation.

(3)

Contracting

The Commission may, to such extent and in such amounts as are provided in appropriation Acts, enter into contracts to enable the Commission to discharge its duties under this title.

(4)

Information from federal agencies

(A)

In general

The Commission is authorized to secure directly from any executive department, bureau, agency, board, commission, office, independent establishment, or instrumentality of the Government, information, suggestions, estimates, and statistics for the purposes of this title. Each department, bureau, agency, board, commission, office, independent establishment, or instrumentality shall, to the extent authorized by law, furnish such information, suggestions, estimates, and statistics directly to the Commission, upon request made by the chairman, the chairman of any subcommittee created by a majority of the Commission, or any member designated by a majority of the Commission.

(B)

Receipt, handling, storage, and dissemination

Information shall only be received, handled, stored, and disseminated by members of the Commission and its staff consistent with all applicable statutes, regulations, and Executive orders.

(5)

Assistance from federal agencies

(A)

General services administration

The Administrator of General Services shall provide to the Commission on a reimbursable basis administrative support and other services for the performance of the Commission’s functions.

(B)

Other departments and agencies

In addition to the assistance prescribed in paragraph (1), departments and agencies of the United States may provide to the Commission such services, funds, facilities, staff, and other support services as they may determine advisable and as may be authorized by law.

(6)

Postal services

The Commission may use the United States mails in the same manner and under the same conditions as departments and agencies of the United States.

(d)

Compensation

(1)

In general

Members of the Commission shall serve without pay.

(2)

Reimbursement of expenses

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

(e)

Training

The Commission shall establish a process and criteria by which Commission members receive orientation and training on human, constitutional and civil rights.

(f)

Report

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

(1)

findings with respect to the duties of the Commission;

(2)

recommendations regarding border and immigration enforcement policies, strategies, and programs;

(3)

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

(4)

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

(g)

Authorization of appropriations

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

(h)

Sunset

Unless the Commission is re-authorized by Congress, the Commission shall terminate on the date that is 60 days after the date the Commission submits the report described in subsection (f).

131.

Prohibition on military involvement in nonemergency border enforcement

(a)

In general

The Armed Forces of the United States, including the National Guard, are prohibited from assisting in Federal, State and local and civilian law enforcement of immigration laws.

(b)

Exception

The Armed Forces of the United States, including the National Guard may assist in Federal, State and local and civilian law enforcement of immigration laws when the President of the United States has declared a national emergency or when required for specific counter-terrorism duties. In the case that, Armed Forces of the United States, including the National Guard are required to perform such duties, those duties in support of Federal, State and local and civilian law enforcement of immigration laws shall be limited to—

(1)

rear echelon support duties, including logistical support, construction, and intelligence collection from positions at least 25 miles from the border;

(2)

nonarmed operations within 25 miles of the border, including listening posts and observation post operations; and

(3)

armed operations outside 25 miles of the border, including listening posts and observation post operations.

(c)

Report

The Secretary shall submit on an annual basis a report to Congress that details the involvement of the Armed Forces in border security and the enforcement of Federal immigration laws.

132.

Definitions

For sections 124 through 128:

(a)

Indian Tribe

The term Indian tribe has the meaning given such term in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b).

(b)

Secretary Concerned

The term Secretary concerned means the Secretary of Agriculture with respect to land under the jurisdiction of the Secretary of Agriculture, the Secretary of the Interior with respect to land under the jurisdiction of the Secretary of the Interior, the Secretary of Defense with respect to land under the jurisdiction of the Secretary of Defense or the secretary of a military department, or the Secretary of Commerce with respect to land under the jurisdiction of the Secretary of Commerce.

133.

Border protection strategy

(a)

In general

Not later than September 30, 2010, the Secretary, the Secretary of the Interior, the Secretary of Agriculture, the Secretary of Defense, and the Secretary of Commerce, in consultation with tribal, State, and local officials, shall jointly develop and submit to Congress a border protection strategy for the international land borders of the United States.

(b)

Elements of the strategy

The strategy developed in accordance with subsection (a) shall include the following components:

(1)

A comparative analysis of the levels of operational control, based on auditable and verifiable data, achievable through alternative tactical infrastructure and other security measures. Measures assessed shall include, at a minimum—

(A)

pedestrian fencing;

(B)

vehicle barriers, especially in the vicinity of existing or planned roads;

(C)

additional Border Patrol agents;

(D)

efficacy of natural barriers and open space in response to unauthorized or unlawful border crossing;

(E)

fielding of advanced remote sensing and information integration technology, including the use of unmanned aerial vehicles and other advanced technologies and systems, including systems developed and employed, or under development, for tactical surveillance, multisource information integration, and response analysis in difficult terrain and under adverse environmental conditions;

(F)

regional as well as urban and rural variation in border security methodologies, and incorporation of natural barriers;

(G)

enhanced cooperation with, and assistance to, intelligence, security, and law enforcement agencies in Mexico and Canada in detecting, reporting, analyzing, and successfully responding to unauthorized or unlawful border crossings from or into Mexico or Canada; and

(H)

removal of obstructive non-native vegetation.

(2)

A comprehensive analysis of cost and other impacts of security measures assessed in paragraph (1), including an assessment of—

(A)

land acquisition costs, including related litigation and other costs;

(B)

construction costs, including both labor and material costs;

(C)

maintenance costs over 25 years;

(D)

contractor costs;

(E)

management and overhead costs;

(F)

the impacts on wildlife, wildlife habitat, natural communities, and functioning cross-border wildlife migration corridors and hydrology (including water quantity, quality, and natural hydrologic flows) on Federal, tribal, State, local, and private lands along the border; and

(G)

costs of fully mitigating the adverse impacts to Federal, tribal, State, local, and private lands, waters (including water quality, quantity, and hydrological flows), wildlife, and wildlife habitats, including, where such action is possible, the full costs of the replacement or restoration of severed wildlife migration corridors with protected corridors of equivalent biological functionality, as determined by each Secretary concerned, in consultation with appropriate authorities of tribal, State, and local governments and appropriate authorities of Mexico and Canada.

(3)

A comprehensive compilation of the fiscal investments in acquiring or managing Federal, tribal, State, local, and private lands and waters in the vicinity of, or ecologically related to, the land borders of the United States that have been acquired or managed in whole or in part for conservation purposes (including the creation or management of protected wildlife migration corridors) in—

(A)

units of the National Park System;

(B)

National Forest System land;

(C)

land under the jurisdiction of the Bureau of Land Management;

(D)

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

(E)

other relevant land under the jurisdiction of the Department of the Interior or the Department of Agriculture;

(F)

land under the jurisdiction of the Department of Defense or the individual military department;

(G)

land under the jurisdiction of the Department of Commerce;

(H)

tribal lands;

(I)

State and private lands; and

(J)

lands within Mexico and Canada.

(4)

Recommendations for strategic border security management based on comparative security as detailed in paragraph (1), the cost-benefit analysis as detailed in paragraph (2), as well as protection of investments in public lands specified in paragraph (3).

(c)

Training

(1)

Required training

The Secretary, in cooperation with the Secretary concerned, shall provide—

(A)

natural resource protection training for Customs and Border Protection agents or other Federal personnel assigned to plan or oversee the construction or operation of border security tactical infrastructure or to patrol land along or in the vicinity of a land border of the United States; and

(B)

cultural resource training for Customs and Border Protection agents and other Federal personnel assigned to plan or oversee the construction or operation of border security tactical infrastructure or to patrol tribal lands.

(2)

Additional considerations

In developing and providing training under subparagraph (A) of paragraph (1), the Secretary shall coordinate with the Secretary concerned and the relevant tribal government to ensure that such training is appropriate to the mission of the relevant agency and is focused on achieving border security objectives while avoiding or minimizing the adverse impact on natural and cultural resources resulting from border security tactical infrastructure, operations, or other activities.

134.

Actions to further secure operational control of the international land borders of the United States

(a)

In General

Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Public Law 104–208; 8 U.S.C. 1103 note) is amended to read as follows:

102.

Improvement of operational control of border

(a)

In General

The Secretary of Homeland Security shall take such actions as may be required to gain operational control of the international land borders of the United States. Such actions may be taken only in accordance with the border protection strategy developed under section 124(a).

(b)

Priority of Methods

In carrying out the requirements of subsection (a), the Secretary of Homeland Security shall, where practicable, give first priority to the use of remote cameras, sensors, removal of nonnative vegetation, incorporation of natural barriers, additional manpower, unmanned aerial vehicles, or other low impact border enforcement techniques.

(c)

Consultation

(1)

In general

In carrying out this section, the Secretary of Homeland Security shall consult with the Secretary of the Interior, the Secretary of Agriculture, the Secretary of Defense, Secretary of Commerce, States, local governments, tribal governments, and private property owners in the United States to minimize the impact on the environment, culture, commerce, safety, and quality of life for the communities and residents located near the sites at which actions under subsection (a) are proposed to be taken.

(2)

Rule of construction

Nothing in this subsection may be construed to—

(A)

create or negate any right of action for a State, local government, tribal government, or other person or entity affected by this subsection;

(B)

affect the eminent domain laws of the United States or of any State; or

(C)

waive the application of any other applicable Federal, State, local, or tribal law.

(3)

Limitation on requirements

Notwithstanding subsection (a), nothing in this section shall require the Secretary of Homeland Security to install fencing, physical barriers, roads, lighting, cameras, or sensors in a particular location along an international border of the United States if the Secretary determines that the use or placement of such resources is not the most effective and appropriate means to achieve and maintain operational control over the international border at such location, or if the Secretary determines that the direct and indirect costs of or the impacts on the environment, culture, commerce, safety, or quality of life for the communities and residents along the border likely to result from the use or placement of such resources outweigh the benefits of such use or placement.

.

(b)

Preconditions

In fulfilling the requirements of section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as amended by this section, the Secretary of Homeland Security shall not commence any construction of fencing, physical barriers, roads, lighting, cameras, sensors, or other tactical infrastructure along or in the vicinity of an international land border of the United States, or award or expend funds pursuant to any contract or other agreement related thereto, prior to 90 days following the submission to Congress of the border protection strategy required under section 133(a) of this subtitle.

135.

Borderlands monitoring and mitigation

(a)

In General

The Secretary, in consultation with the Secretary of the Interior, the Secretary of Agriculture, the Secretary of Defense, the Secretary of Commerce, and the heads of appropriate State and tribal wildlife agencies and entities, shall develop and implement a comprehensive monitoring and mitigation plan to address the ecological and environmental impacts of border security infrastructure, measures, and activities along the international land borders of the United States.

(b)

Requirements

The mitigation plan required under subsection (a) shall include, at a minimum, measures to address and mitigate the full range of ecological and environmental impacts of border security infrastructure, measures, and activities, including—

(1)

preserving, maintaining, and, if necessary, restoring wildlife migration corridors, key habitats, and the ecologically functional connectivity between and among key habitats sufficient to ensure that species (whether or not designated as rare, protected, or of concern) remain viable and are able to adapt to the impacts of climate change;

(2)

addressing control of invasive species and implementing measures necessary to avoid the spread of such species;

(3)

maintaining hydrological functionality, including water quantity and quality;

(4)

incorporating adaptive management, including detailed provisions for long-term monitoring of the mitigation plan’s effectiveness and for necessary adjustments to such plan based on such monitoring results; and

(5)

protection of cultural and historical resources.

(c)

Preemption

(1)

In general

Notwithstanding any other provision of law, the Secretary may, subject to paragraph (2), carry out the mitigation plan required under subsection (a) on any Federal, State, local, tribal, or private lands in the vicinity of or ecologically related to an international land border of the United States regardless of which individual, agency, or entity has ownership of or principal responsibility for the management of any such lands.

(2)

Conditions

Activities carried out pursuant to paragraph (1) in connection with the mitigation plan shall be carried out in full consultation with, and with the concurrence of, the owner of, or entity with principal responsibility for, the management of the lands described in such paragraph.

(d)

Administration

(1)

Authorization

The Secretary of Homeland Security may transfer funds of the Department of Homeland Security to other Federal agencies for—

(A)

expenditure under programs (including any international programs) of such agencies that are designed to fund conservation related activities (directly or through grants or similar mechanisms) on non-Federal lands, including land acquisition programs; and

(B)

mitigation activities on Federal lands managed by such agencies, if such activities are required to implement the mitigation plan required under subsection (a) and if the costs of such activities are higher than the costs associated with managing such lands in the absence of such activities.

(2)

Exemption from reprogramming requirements

Funds transferred pursuant to the authorization under paragraph (1) shall not be subject to reprogramming requirements.

(3)

Acceptance and use of donations

The Secretary may accept and use donations for the purpose of developing and implementing the mitigation plan required under subsection (a), and may transfer such funds to any other Federal agency for expenditure under such plan pursuant to paragraph (1).

(e)

Authorization of Appropriations

Notwithstanding any other provision of law, funds appropriated to the Department of Homeland Security for border security infrastructure and activities may be used by the Secretary to develop and implement the mitigation plan required under subsection (a).

136.

Border Communities Liaison Office

(a)

Establishment

The Secretary shall establish, in consultation with the Office of Civil Rights and Civil Liberties, a Border Communities Liaison Office in every border patrol sector at the southern and northern borders.

(b)

Purpose

The purpose of the Border Communities Liaison Office shall be—

(1)

to foster and institutionalize consultation with border communities;

(2)

to consult with border communities on agency policies, directives and laws;

(3)

to consult with border communities on agency strategies and strategy development;

(4)

to consult with border communities on agency services and operational issues;

(5)

to receive assessments on agency performance from border communities; and

(6)

to receive complaints regarding agency performance and agent conduct.

(c)

Authorization of appropriations

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

137.

Office of Civil Rights and Civil Liberties and Office of Inspector General

There are authorized to be appropriated such sums as are necessary for the Department’s Office of Inspector General and the Department’s Office of Civil Rights and Civil Liberties to be comparable to those of other Federal agencies and commensurate with the size and scope of the DHS operational budget.

138.

Improving ports of entry for border security and other purposes

(a)

In General

There are authorized to be appropriated to the Administrator of the General Services Administration such sums as may be necessary for each of fiscal years 2011 through 2015 to make improvements to existing ports of entry in the United States to improve border security and for other purposes.

(b)

Priority

In making improvements described in subsection (a), the Administrator of the General Services Administration, in coordination with the Commissioner of Customs and Border Protection, shall give priority to the ports of entry that the Administrator determines are in most need of repair to improve border security and for other purposes in accordance with port of entry infrastructure assessment studies required in section 603 of title VI, division E, of the Consolidated Appropriations Act of 2008 (Public Law 101–161).

139.

Ports of entry

(a)

In general

In order to aid in the enforcement of Federal customs, immigration, and agriculture laws, and national security goals the Customs and Border Protection Commissioner may—

(1)

design, construct, and modify land ports of entry and other structures and facilities, including living quarters for officers, agents, and personnel;

(2)

acquire, by purchase, donation, or exchange, land or any interest in land determined to be necessary to carry out the Commissioner’s duties under this section; and

(3)

construct additional ports of entry along the southern border and the northern border.

(b)

Consultation

(1)

Locations for new ports of entry

The Secretary of Homeland Security shall consult with the Secretary of the Interior, the Secretary of Agriculture, the Secretary of State, the International Boundary and Water Commission, the International Joint Commission, and appropriate representatives of States, local governments, Indian tribes, and property owners to—

(A)

determine locations for new ports of entry; and

(B)

minimize adverse impacts from such ports on the environment, historic and cultural resources, commerce, and quality of life for the communities and residents located near such ports.

(2)

Acquisition of leasehold interest

The Secretary of Homeland Security may acquire a leasehold interest in real property, and may construct or modify any facility on the leased property, if the Secretary determines that the acquisition of such interest, and such construction or modification, are necessary to facilitate the implementation of this Act.

(3)

Construction of border control facilities

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

140.

Ports of entry infrastructure and operations assessment study

(a)

Requirement To update

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

(b)

Consultation

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

(c)

Content

Each updated study required in subsection (a) shall—

(1)

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

(2)

identify port operations and practices (to include, but not be limited to training and staffing levels) that would enhance border security and facilitate the flow of legitimate individual travel and commerce if implemented;

(3)

establish a process to identify and prioritize needs at ports for shelter from the elements, Americans with Disability Act compliance, and related issues;

(4)

include the projects identified in the National Land Border Ports of Entry Security Plan required by section 141; and

(5)

prioritize the projects described in paragraphs (1), (2), (3), and (4) based on the ability of a project to—

(A)

fulfill immediate security requirements;

(B)

facilitate trade across the borders of the United States;

(C)

facilitate individual travel; and

(D)

reduce individual and commercial wait times for pedestrians and vehicles.

(d)

Project implementation

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

(e)

Divergence from priorities

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

141.

National Land Border Ports of Entry Security Plan

(a)

In general

Not later than one year after the date of enactment of this Act, and annually thereafter, the Secretary, after consultation with representatives of Federal, State, and local law enforcement agencies and private entities that are involved in international trade across Northern or Southern ports of entry, shall submit a National Land Border Ports of Entry Security Plan to Congress.

(b)

Vulnerability assessment

(1)

In general

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

(2)

Port security coordinators

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

(A)

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

(B)

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

142.

Ports of entry technology demonstration program

(a)

Demonstration program

The Secretary shall carry out a technology demonstration program to—

(1)

test and evaluate new port of entry technologies;

(2)

refine port of entry technologies and operational concepts; and

(3)

train personnel under realistic conditions.

(b)

Technology and facilities

(1)

Technology testing

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

(A)

inspections;

(B)

communications;

(C)

port tracking;

(D)

identification of persons and cargo;

(E)

sensory devices;

(F)

personal detection;

(G)

decision support; and

(H)

the detection and identification of weapons, including weapons of mass destruction.

(2)

Development of facilities

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

(A)

cross-training among agencies;

(B)

advanced law enforcement training; and

(C)

equipment orientation.

(c)

Demonstration sites

(1)

Number

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

(2)

Selection criteria

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

(A)

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

(B)

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

(C)

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

(d)

Relationship with other agencies

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

(e)

Report

(1)

Requirement

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

(2)

Content

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

143.

Reports on improving the exchange of information on North American security

(a)

Requirement for reports

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

(b)

Contents

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

(1)

Security clearances and document integrity

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

(A)

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

(i)

passports;

(ii)

visas; and

(iii)

permanent resident cards;

(B)

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

(C)

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

(2)

Immigration and visa management

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

(A)

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

(B)

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

(3)

Visa policy coordination and immigration security

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

(A)

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

(B)

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

(i)

application process;

(ii)

interview policy;

(iii)

general screening procedures;

(iv)

visa validity;

(v)

quality control measures; and

(vi)

access to appeal or review;

(C)

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

(D)

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

(E)

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

(F)

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

(4)

North American visitor overstay program

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

(5)

Terrorist watch lists

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

(A)

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

(B)

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

(C)

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

(D)

in establishing transparent standards and processes that enable innocent individuals to remove their names from a watch list.

(6)

Money laundering, currency smuggling, and alien smuggling

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

(A)

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

(B)

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

(C)

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

(D)

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

(E)

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

(F)

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

(7)

Law enforcement cooperation

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

144.

Southern Border Security Task Force

(a)

Establishment

Not later than 180 days after the date of the enactment of this Act, the Secretary of Homeland Security shall establish a Southern Border Security Task Force (in this Act referred to as the Task Force) to coordinate the efforts of Federal, State, and local border and law enforcement officials and task forces to protect United States border cities and communities from violence associated with drug trafficking, gunrunning, illegal alien smuggling, violence, and kidnapping along and across the international border between the United States and Mexico.

(b)

Composition and Deployment

(1)

Composition

The Task Force shall be comprised of personnel from—

(A)

United States Customs and Border Protection;

(B)

United States Immigration and Customs Enforcement;

(C)

the Coast Guard;

(D)

other Federal agencies, as appropriate;

(E)

southern border State law enforcement agencies; and

(F)

local law enforcement agencies from affected southern border cities and communities.

(2)

Deployment

The Secretary of Homeland Security shall deploy the Task Force along the international border between the United States and Mexico in cities and communities most affected by violence, as determined by the Secretary.

(c)

Director

The Secretary of Homeland Security shall appoint as a Director of the Task Force an individual who is experienced and knowledgeable in law enforcement generally and border security issues specifically.

(d)

Report

Not later than 180 days after the date of the establishment of the Task Force under subsection (a) and annually thereafter, the Secretary of Homeland Security shall submit to the Committee on Homeland Security of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate a report on the effectiveness of the Task Force in reducing the drug trafficking, gunrunning, illegal alien smuggling, violence, and kidnapping along and across the international border between the United States and Mexico as measured by crime statistics, including violent deaths, incidents of violence, and drug related arrests.

(e)

Authorization of appropriations

There is authorized to be appropriated to the Secretary of Homeland Security $10,000,000 for each of fiscal years 2010 through 2014—

(1)

to establish and operate the Task Force, including to provide for operational, administrative, and technological costs to Federal, State, and local law enforcement agencies participating in the Task Force; and

(2)

to investigate, apprehend, and prosecute individuals engaged in drug trafficking, gunrunning, illegal alien smuggling, violence, and kidnapping along and across the international border between the United States and Mexico.

145.

Cooperation with the Government of Mexico

(a)

Cooperation regarding border security

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

(1)

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

(2)

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

(3)

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

(4)

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

(5)

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

(6)

the reduction of other violence and criminal activity.

(b)

Cooperation regarding education on immigration laws

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

(c)

Cooperation regarding circular migration

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

(d)

Consultation requirement

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

(1)

solicit the views of affected communities;

(2)

lessen tensions; and

(3)

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

(e)

Annual report

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

146.

Enhanced international cooperation

(a)

In General

The Attorney General, in cooperation with the Secretary of State, shall—

(1)

assign agents of the Bureau of Alcohol, Tobacco, Firearms, and Explosives to the United States mission in Mexico, to work with Mexican law enforcement agencies in conducting investigations relating to firearms trafficking and other criminal enterprises;

(2)

provide the equipment and technological resources necessary to support investigations and to trace firearms recovered in Mexico; and

(3)

support the training of Mexican law enforcement officers in serial number restoration techniques, canine explosive detection, and anti-trafficking tactics.

(b)

Authorization of Appropriations

There is authorized to be appropriated $9,500,000 for each of fiscal years 2011 and 2012 to carry out this section.

147.

Expansion of commerce security programs

(a)

Customs-trade partnership against terrorism

(1)

In general

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

(A)

The Business Anti-Smuggling Coalition.

(B)

The Carrier Initiative Program.

(C)

The Americas Counter Smuggling Initiative.

(D)

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

(E)

The Free and Secure Trade Initiative.

(F)

Other industry partnership programs administered by the Commissioner.

(2)

Southern border demonstration program

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

(b)

Demonstration program

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

148.

Authorization of appropriations

(a)

In general

In addition to any funds otherwise available, there are authorized to be appropriated such sums as may be necessary for the fiscal years 2011 through 2015 to carry out this subtitle.

(b)

International agreements

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

B

Detention

151.

Definitions

In this subtitle:

(1)

Detention

The term detention, in the context of an immigration-related enforcement activity, means government custody or any other deprivation of an individual’s freedom of movement by government agents.

(2)

Detention facility

The term detention facility means any Federal, State, local government facility, or privately owned and operated facility that is used to hold immigration detainees for more than 72 hours.

(3)

Short-term detention facility

The term short-term detention facility means any Federal, State, local government facility, or privately owned and operated facility that is used to hold immigration detainees for 72 hours or less.

(4)

Immigration-related enforcement activity

The term immigration-related enforcement activity means any government action in which—

(A)

an individual suspected of an immigration violation is detained for such violation; or

(B)

an individual who has been detained by government agents is questioned about possible immigration violations.

(5)

Secure alternatives programs

The term secure alternatives means custodial or non-custodial programs under which aliens are screened and provided with appearance assistance services or placed in supervision programs as needed to ensure they appear at all immigration interviews, appointments and hearings.

(6)

Unaccompanied alien children

The term unaccompanied alien child or children shall be defined as found in section 462(g) of the Homeland Security Act of 2002 (6 U.S.C. 279(g))

(7)

Apprehension

The term apprehension, in the context of an immigration enforcement related activity, means government detention, arrest, or custody, or any significant deprivation of an individuals freedom of action by government officials or entities acting under agreement with the Department of Homeland Security for suspicion of violations under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).

(8)

SSA

The term SSA means the appropriate State or local service agency, including relevant nongovernmental organizations, child welfare agencies, child protective service agencies, school and head start administrators, mental health and legal service providers, and hospitals.

152.

Detention conditions

(a)

In general

The Secretary shall—

(1)

ensure that all detainees are treated humanely and granted the protections described in this section; and

(2)

comply with the minimum requirements set forth in this section.

(b)

Quality of medical care

(1)

Right to medical care

Each detainee has the right to—

(A)

prompt and adequate medical care, designed to ensure continuity of care, at no cost to the detainee;

(B)

care to address medical needs that existed prior to detention; and

(C)

primary care, emergency care, chronic care, prenatal care, dental care, eye care, mental health care, and other medically necessary specialized care.

(2)

Screenings and examinations

Each detainee shall receive—

(A)

a comprehensive medical, dental, and mental health intake screening, including screening for sexual abuse or assault by a licensed health care professional upon arrival at a detention facility or short-term detention facility; and

(B)

a comprehensive medical and mental health examination by a licensed health care professional not later than 14 days after the detainee’s arrival at a detention facility.

(3)

Medications and treatment

(A)

Prescriptions

Each detainee taking prescribed medications prior to detention shall be allowed to continue taking such medications, on schedule and without interruption, until and unless a licensed health care professional examines the immigration detainee and decides upon an alternative course of treatment. Detainees who arrive at a detention facility without prescription medications and report being on such medications shall be evaluated by a qualified health care professional not later than 24 hours after arrival. All decisions to discontinue or modify a detainee’s reported prescription medication regimen shall be conveyed to the detainee in a language that the detainee understands and shall be recorded in writing in the detainee’s medical records.

(B)

Psychotropic medication

Medication may not be forcibly administered to a detainee to facilitate transport, removal, or otherwise to control the detainee’s behavior. Involuntary psychotropic medication may only be used, to the extent authorized by applicable law, in emergency situations after a physician has personally examined the detainee and determined that—

(i)

the detainee is imminently dangerous to self or others due to a mental illness; and

(ii)

involuntary psychotropic medication is medically appropriate to treat the mental illness and necessary to prevent harm.

(C)

Treatment

Each detainee shall be provided medically necessary treatment, including prenatal care, prenatal vitamins, hormonal therapies, and birth control. Female detainees shall be provided with adequate access to sanitary products.

(4)

Medical care decisions

Any decision regarding requested medical care for a detainee—

(A)

shall be made in writing by an on-site licensed health care professional not later than 72 hours after such medical care is requested; and

(B)

shall be immediately communicated to the detainee.

(5)

Administrative appeals process

(A)

In general

Detention facilities, in conjunction with the Department of Homeland Security, shall ensure that detainees, medical providers, and legally appointed advocates have the opportunity to appeal a denial of requested health care services by an on-site provider to an independent appeals board.

(B)

Appeals board

The appeals board shall include health care professionals in the fields relevant to the request for medical or mental health care.

(C)

Decision

Not later than 7 days after an appeal is received by the appeals board under this paragraph, or earlier if medically necessary, the appeals board shall issue a written decision regarding the appeal and notify the detention facility and the appellee of such decision.

(6)

Review of on-site medical provider requests

(A)

In general

The Secretary shall respond within 72 hours to any request by an on-site medical provider for authorization to provide medical or mental health care to a detainee.

(B)

Written explanation

If the Secretary denies or fails to grant a request described in subparagraph (A), the Secretary shall immediately provide a written explanation of the reasons for such decision to the on-site medical provider and the detainee.

(C)

Appeals board

The on-site medical provider and the detainee (or the detainee’s legally appointed advocate) shall be permitted to appeal the denial of, or failure to grant, a request described in subparagraph (A) to an independent appeals board.

(D)

Decision

Not later than 7 days after an appeal is received by the appeals board under this paragraph, or earlier if medically necessary, the appeals board shall issue a written decision regarding the appeal and notify the on-site medical provider, the detainee, and the detention facility of such decision.

(7)

Conditional release

(A)

In general

If a licensed health care professional determines that a detainee has a medical or mental health care condition, is pregnant, or is a nursing mother, the Secretary shall consider releasing the detainee on parole, on bond, or into a secure alternatives program.

(B)

Reevaluation

If a detainee described in subparagraph (A) is not initially released under this paragraph, the Secretary shall periodically reevaluate the situation of the detainee to determine if such a release would be appropriate.

(C)

Discharge planning

Upon removal or release, all detainees with medical or mental health conditions and women who are pregnant, post-natal, and nursing mothers shall receive discharge planning to ensure continuity of care for a reasonable period of time.

(8)

Medical records

(A)

In general

The Secretary shall maintain complete, confidential medical records for every detainee and make such records available to a detainee or to individuals authorized by the detainee not later than 72 hours after receiving a request for such records.

(B)

Transfer of medical records

Immediately upon a detainee’s transfer between detention facilities, the detainee’s complete medical records, including any transfer summary, shall be provided to the receiving detention facility.

(c)

Access to telephones

Detention facilities shall provide to detainees reasonable and equitable access to working telephones, and the ability to contact, through confidential toll-free numbers, legal representatives, family courts, child protective services, foreign consulates, the immigration courts, Federal and state courts in which the detainee is, or may become, involved in a legal proceeding, the Board of Immigration Appeals, nongovernmental organizations designated by the Secretary, all government immigration agencies and adjudicatory bodies including the Office of the Inspector General of the Department of Homeland Security and the Office for Civil Rights and Civil Liberties of the Department of Homeland Security, in addition to persons and offices contacted for the purpose of obtaining legal representation. Detention facilities shall provide to detainees access to telephones during facility working hours and on an emergency basis in accordance with the following:

(1)

The detention facility shall provide to each detainee a copy of its rules governing telephone access and shall post those rules, together with an explanation of how to make calls, within sight of each telephone available to detainees. These rules shall be translated into Spanish and two additional languages spoken by a substantial part of the detainee population of the detention facility. If a detention facility has determined that more than 5 percent of its population is of a certain language group, the document should be translated into that language group’s appropriate language. The detention facility shall also provide oral interpretation and written translation assistance to detainees in reading any relevant materials required to request telephone access, including oral interpretation assistance for those who are not literate in English, Spanish, and other languages spoken by the detainee population of the facility.

(2)

The rates charged for telephone calls shall be reasonable and equitable and shall not significantly impair detainees’ access to telephones.

(3)

The detention facility shall not restrict the number of calls detainees may place to their legal representatives or consular officials, or to any others for the purpose of obtaining legal representation, or limit the duration of those calls by rule or automatic cut-off, unless necessary for security reasons. The detention facility shall have a reasonable number of working phones available to detainees, and at a minimum one phone per each 25 users.

(4)

The detention facility shall ensure the privacy of telephone conversations between detainees and legal representatives or consular officials, and calls made for the purpose of obtaining legal representation. Means to ensure privacy may include the use of privacy panels, the placement of phones in housing pods, and other appropriate measures.

(5)

Detainees’ telephone calls to a court, legal representative, or consular official, or for the purpose of obtaining legal representation, shall not be monitored or recorded without a court order and without prior notification to the detainee.

(6)

The detention facility shall take and deliver telephone messages to detainees as promptly as possible, but no less often than twice a day. Detainees shall be permitted to make confidential telephone calls promptly within 8 hours of receipt of messages left by a court, legal representative, prospective legal representative, or consular official as soon as reasonably possible after the delivery of the message.

(d)

Sexual abuse regulations concerning care and custody of detainees

(1)

In general

Detention facilities shall take all necessary measures to prevent sexual abuse of detainees, including sexual assaults, and shall observe the minimum standards under the Prison Rape Elimination Act of 2003 (42 U.S.C. 15601 et seq.).

(2)

Measures where abuse occurs

Where sexual abuse occurs, detention facilities shall ensure that—

(A)

prompt and appropriate medical intervention is taken to minimize medical and psychological trauma;

(B)

a medical history is taken and a physical examination is conducted by qualified and culturally appropriate licensed medical professionals to determine the extent of physical injury and whether referral to another medical facility is indicated;

(C)

prophylactic treatment and follow-up for sexually transmitted diseases are provided within the appropriate time frame;

(D)

the case is evaluated by a qualified and culturally appropriate mental health professional for crisis intervention counseling and long-term follow-up;

(E)

victims are separated from their abusers and are considered for release on parole or for an alternative to detention program—

(i)

shall not result in the transfer of the victim away from counsel absent expectional circumstances; and

(ii)

shall never result in the placement of the victim in solitary confinement; and

(F)

any and all medical and mental health records arising out of a detainee’s allegation of sexual abuse shall be treated as confidential, as required by the Health Insurance Portability and Accountability Act of 1996.

(3)

Reporting

A detention facility shall not subject any person to punishment or any other form of retaliation for reporting incidents of sexual abuse.

(4)

Investigation

In all cases of alleged sexual abuse, the detention facility shall conduct a thorough and timely investigation and shall provide to the Secretary of Homeland Security a report of the circumstances and the response of the detention facility. If the report is not completed within 30 days after alleged sexual abuse comes to the attention of the detention facility, the detention facility shall submit to the Secretary of Homeland Security a description of the status of the investigation and an estimated date of completion 30 days after the alleged sexual abuse comes to the attention of the detention facility and every 30 days thereafter until the report is provided to the Secretary of Homeland Security. The report required by this subsection shall include at minimum a determination of whether the alleged sexual abuse occurred, an in-depth analysis of the relevant facts including the causes of any sexual abuse that may have occurred and whether and to what extent the alleged abuse indicates a failure of policy, a failure of training, a failure of oversight, or a failure of management, and a description of the actions that the facility will take to prevent the occurrence of similar incidents in the future and a plan for monitoring the implementation of those actions. The detention facility shall provide to the Secretary of Homeland Security periodic reports monitoring the implementation of the plan in accordance with the schedule set forth in such plan as approved by the Secretary of Homeland Security.

(e)

Transfer of detainees

(1)

Procedures

In adopting procedures governing the transfer of individuals detained under the Immigration and Nationality Act (8 U.S.C. 1226), the Secretary of Homeland Security shall prohibit transfer of a detainee if such transfer would—

(A)

negatively affect an existing attorney-client relationship;

(B)

negatively affect the detainee's legal proceedings, including merits or calendar hearings, or a pending application with United States Citizenship and Immigration Services or the Executive Office for Immigration Review, by—

(i)

limiting the detainee's access to securing legal representation;

(ii)

limiting the detainee's ability to prepare a legal defense to removal; or

(iii)

removing the detainee from the legal venue of such proceeding;

(C)

negatively affect the detainee's health and medical fitness; or

(D)

to the extent it does not conflict with clauses (i), (ii), and (iii)—

(i)

place the detainee in a location more distant from the detainee's residence than the original detention location; or

(ii)

place the detainee in a location more distant from family members than the original detention location.

(2)

Notice

Unless exigent circumstances dictate an immediate transfer—

(A)

the Secretary of Homeland Security shall provide not less than 72 hours notice to any detainee prior to transferring the detainee to another detention facility;

(B)

detainees shall be afforded at least one toll-free call and the Secretary of Homeland Security shall notify the detainee’s legal representative or if unrepresented, an adult family member or other person designated by the detainee, of the transfer and the detainee’s new location by telephone and in writing;

(C)

if removal proceedings are pending, the Secretary of Homeland Security shall also promptly notify the Immigration Court, Board of Immigration Appeals, or the Circuit Court of Appeals, as appropriate of the transfer and the detainee’s new address; and

(D)

the Secretary of Homeland Security shall not transfer any detainee who has already requested, and is awaiting, a bond hearing or a bond redetermination hearing.

(3)

Exception

The Secretary may transfer a detainee who has an existing attorney-client relationship to an alternate detention facility if such transfer is necessitated by a highly unusual emergency, such as a natural disaster or comparable emergency.

(4)

Protecting detainees legal rights

If the Secretary determines that a transfer is necessary due to a highly unusual emergency, the Secretary shall ensure that the detainee’s legal rights are not prejudiced and the existing attorney-client relationship is not impaired, including evaluating the location of the detention facility based on it proximity to the detainee’s counsel or nongovernmental or pro bono organizations providing free or low cost immigration legal services.

(5)

Record

In cases in which a detainee is transferred, the Secretary shall make a record of the reasons and circumstances necessitating such transfer.

153.

Specific detention requirements for short-term detention facilities

(a)

Access to basic needs, people, and property

(1)

Basic needs

All detainees in short-term detention facilities shall receive—

(A)

potable water;

(B)

food, if detained for more than 5 hours;

(C)

basic toiletries, diapers, sanitary products, and blankets;

(D)

access to bathroom facilities; and

(E)

access to telephones.

(2)

People

The Secretary shall provide consular officials with access to detainees held at any short-term detention facility. Detainees shall be afforded reasonable access to a licensed health care professional. The Secretary shall ensure that nursing mothers in such facilities have access to their children.

(3)

Property

Any property belonging to a detainee that was confiscated by an official of the Department of Homeland Security shall be returned to the detainee upon repatriation or transfer.

(b)

Protections for children

(1)

Qualified staff

The Secretary shall ensure that adequately trained and qualified staff are stationed at each major port of entry at which, during the most recent 2 fiscal years, an average of not fewer than 50 unaccompanied alien children per year have been held by United States Customs and Border Protection, such staff shall include—

(A)

independent licensed social workers dedicated to ensuring the proper temporary care for the children while in the custody of United States Customs and Border Protection; and

(B)

agents charged primarily with the safe, swift, and humane transportation of such children to the custody of the Office of Refugee Resettlement.

(2)

Specific rights

The social workers described in paragraph (1)(A) shall ensure that each unaccompanied alien child—

(A)

receives emergency medical care;

(B)

receives mental health care in case of trauma;

(C)

has access to psychosocial health services;

(D)

is provided with—

(i)

a pillow, linens, and sufficient blankets to rest at a comfortable temperature; and

(ii)

a bed and mattress placed in an area specifically designated for residential use;

(E)

receives adequate nutrition;

(F)

enjoys a safe and sanitary living environment;

(G)

receives educational materials; and

(H)

has access to at least 3 hours of indoor and outdoor recreational programs and activities per day.

(c)

Confidentiality

(1)

In general

The Secretary of Health and Human Services shall maintain the privacy and confidentiality of all information gathered in the course of providing care, custody, placement, and follow-up services to unaccompanied alien children and separated children as defined in section 164(c), consistent with the best interest of such children, by not disclosing such information to other government agencies or nonparental third parties, except as provided under paragraph (2).

(2)

Limited disclosure of information

The Secretary may only disclose information regarding an unaccompanied alien child if—

(A)

the child authorizes such disclosure and such is consistent with the child’s best interest; or

(B)

the disclosure is to a duly recognized law enforcement entity and is necessary to prevent imminent and serious harm to another individual.

(3)

Written record

All disclosures under paragraph (2) shall be duly recorded in writing and placed in the child’s file.

154.

Rulemaking and enforcement

(a)

Regulations

(1)

Notice of proposed rulemaking

Not later than 60 days after the date of the enactment of this Act, the Secretary shall issue a notice of proposed rulemaking regarding the implementation of this Act.

(2)

Final regulations

Not later than 180 days after the date of the enactment of this Act, the Secretary shall promulgate regulations, which shall be binding upon all detention facilities and short-term detention facilities, to ensure that the detention requirements under sections 142 and 143 are fully implemented and enforced and that all facilities comply with the regulations.

(b)

Enforcement

(1)

In general

The Secretary shall enforce all regulations and standards promulgated under subsection (a). Not later than 180 days after the date of the enactment of this Act, the Secretary shall issue guidance to detention facilities and short-term detention facilities to ensure compliance with all the detention requirements under sections 142 and 143.

(2)

Investigation

(A)

Grievances

Each detainee has the right to file grievances with the staff of detention facilities, short-term detention facilities, and the Department of Homeland Security, and shall be protected from retaliation for exercising such right.

(B)

Review

The Secretary shall—

(i)

review any grievance or other complaint containing evidence that a detention facility or short-term detention facility has violated any requirement under this Act;

(ii)

issue a determination in writing to the complainant indicating the Secretary’s findings regarding the alleged violation not later than 30 days after receiving such complaint;

(iii)

remedy any violation not later than 30 days after issuing a determination under clause (ii); and

(iv)

promptly advise the complainant of the remedy referred to in clause (iii).

(C)

Written response

If the Secretary issues a written response under subparagraph (B)(ii) indicating that no violation has occurred, such response shall constitute final agency action for the purposes of section 702 of title 5, United States Code.

(3)

Penalties

The Secretary shall enforce compliance with the detention requirements under sections 142 and 143 by—

(A)

imposing financial penalties upon detention facilities and short-term detention facilities that are not in compliance with such requirements; and

(B)

terminating the contracts of such facilities if such noncompliance persists.

(4)

Compliance officer

(A)

Designation

Each detention facility and short-term detention facility shall designate an officer to ensure compliance with the provisions of this Act.

(B)

Duties

Each officer designated under subparagraph (A) shall—

(i)

investigate all evidence pertaining to a violation of this Act; and

(ii)

if a violation is identified, remedy the violation within 30 days.

(C)

Judicial review

A detainee may not seek judicial review of the detention facility’s determination until after the passage of the 30-day period, except where irreparable harm would result.

(c)

Rule of construction

Nothing in this section may be construed to preclude review of noncompliance with this Act under—

(1)

section 1331 or 2241 of title 28, United States Code; or

(2)

section 1979 of the Revised Statutes (42 U.S.C. 1983).

(d)

Punitive damages

No individual may seek punitive damages for any violation under this Act.

155.

Immigration Detention Commission

(a)

Appointment

The Secretary shall appoint and convene an Immigration Detention Commission (referred to in this section as the Commission), which shall be comprised of—

(1)

experts from United States Immigration and Customs Enforcement, United States Customs and Border Protection, the Office of Refugee Resettlement, and the Division of Immigration Health Services of the Department of Health and Human Services; and

(2)

independent experts, in a number equal to the number of experts appointed under paragraph (1), from nongovernmental organizations and intergovernmental organizations with expertise in working on behalf of detainees and other vulnerable populations.

(b)

Duties

The Commission shall conduct independent investigations, and evaluate and report on the compliance of detention facilities, short-term detention facilities, and the Department of Homeland Security with the detention requirements under sections 142 and 143.

(c)

Biennial reports

Not later than 60 days after the end of the first fiscal year beginning after the date of the enactment of this Act, and every 2 years thereafter, the Commission shall submit a report containing the findings of its investigations and evaluations under subsection (b) to—

(1)

the Committee on the Judiciary of the Senate;

(2)

the Committee on Homeland Security and Governmental Affairs of the Senate;

(3)

the Committee on the Judiciary of the House of Representatives; and

(4)

the Committee on Homeland Security of the House of Representatives.

156.

Death in custody reporting requirement

(a)

In general

If an individual dies while in the custody of the Department of Homeland Security or en route to or from such custody—

(1)

the supervising official at the detention facility or short-term detention facility at which the death took place shall immediately notify the Secretary of such death; and

(2)

not later than 48 hours after receiving a notification under paragraph (1), the Secretary shall report the death to—

(A)

the Office of the Inspector General of the Department of Homeland Security; and

(B)

the Department of Justice.

(b)

Morbidity and Mortality Review

The Department of Homeland Security shall complete an investigation of each detainee death that shall be conducted consistent with established medical practice for morbidity and mortality reviews and examine both individual and systemic contributors to the death. The investigation shall be conducted by a panel of physicians with experience in morbidity and mortality reviews and shall include the medical staff of the facility or facilities that cared for the deceased detainee, physicians from within the Department, and independent physicians not affiliated with the Department or facility. The panel shall complete a report and corrective action plan in each case.

(c)

Report to Congress

Not later than 60 days after the end of each fiscal year, the Secretary shall submit a report containing detailed information regarding all the deaths of individuals in the custody of the Department of Homeland Security during the preceding fiscal year to the committees set forth in section 155(c).

(d)

Contents

The reports submitted under subsection (a)(2) and subsection (c) shall include—

(1)

the name, gender, race, ethnicity, and age of the deceased;

(2)

the date, time, and location of death;

(3)

the law enforcement agency that detained, arrested, or was in the process of arresting the deceased;

(4)

a description of the circumstances surrounding the death;

(5)

the status and results of any investigation that has been conducted into the circumstances surrounding the death; and

(6)

all medical records of the deceased.

157.

Protection of community-based organizations, faith-based organizations and other institutions

(a)

In general

The Secretary shall issue regulations requiring officials of the Department of Homeland Security to—

(1)

prohibit the apprehension of persons on the premises or in the immediate vicinity of—

(A)

a childcare provider;

(B)

a school;

(C)

a legal-service provider;

(D)

a Federal court or State court proceeding;

(E)

an administrative proceeding;

(F)

a funeral home;

(G)

a cemetery;

(H)

a college, university, or community college;

(I)

a victim services agency;

(J)

a social service agency;

(K)

a hospital or emergency care center;

(L)

a health care clinic;

(M)

a place of worship;

(N)

a day care center;

(O)

a head start center;

(P)

a school bus stop;

(Q)

a recreation center;

(R)

a mental health facility; and

(S)

a community center; and

(2)

tightly control investigative operations at the locations described in paragraph (1).

(b)

Notice to appear

The Secretary shall amend the Notice to Appear form to include a statement that no immigration enforcement activity was undertaken in any of the locations described in subsection (a)(1).

158.

Apprehension procedures for immigration-related enforcement activities

(a)

In general

Any immigration-related enforcement activity engaged in by the Department of Homeland Security or by other entities under agreement with the Department of Homeland Security for alleged violations under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.), which results in the apprehension of at least 1 alien shall be carried out in accordance with the procedures described in this section.

(b)

Apprehension procedures

The Department of Homeland Security and entities under agreement with the Department of Homeland Security shall—

(1)

conduct an initial review of each individual apprehended in an immigration-related enforcement activity to ascertain whether such individual may be a United States citizen, a lawful permanent resident of the United States, or an alien lawfully present in the United States;

(2)

if an individual claims to be a United States citizen, a lawful permanent resident of the United States, or an alien lawfully present in the United States, ensure that personnel of the Department of Homeland Security or personnel under agreement with the Department of Homeland Security investigates the individual’s claims and considers the individual for release under section 160(c);

(3)

notify SSAs of such immigration-related enforcement activity not later than 24 hours before the commencement of such activity, specifically notifying the SSAs of—

(A)

the specific area of the State that will be affected; and

(B)

the languages anticipated may be spoken by individuals at the targeted site;

(4)

if such immigration-related enforcement activities cannot be planned more than 24 hours in advance, notify SSAs in a timely fashion before the activity commences or, if this is not possible, immediately following the commencement of such activity;

(5)

provide SSAs with ongoing confidential access to individuals apprehended by the Department of Homeland Security or any entity operating under agreement with the Department of Homeland Security within six hours of the individual’s apprehension, to assist the Department of Homeland Security in determining if he or she is a member of a vulnerable population as described in section 160(a)(2);

(6)

notify local law enforcement of the specific area of the State that will be affected by such immigration-related enforcement activity not later than 24 hours before the commencement of such activity or, if such immigration-related enforcement activity cannot be planned more than 24 hours in advance, notify local law enforcement in a timely fashion before the activity commences, or if this is not possible, immediately following the commencement of such activity;

(7)

provide all Department of Homeland Security personnel, personnel from entities under agreement with the Department of Homeland Security participating, SSAs, and medical personnel with detailed instructions on what steps to take if they encounter individuals who are a member of a vulnerable population;

(8)

ensure that not fewer than one independent certified interpreter who is fluent in Spanish or any language other than English spoken by more than 5 percent of the target population of the immigration-related enforcement activity is available for in-person translation for every 5 individuals targeted by an immigration-related enforcement activity, and that the Department of Homeland Security and entities operating under agreement with the Department of Homeland Security utilize appropriate translation services where interpreters cannot or have not been retained prior to commencement of an immigration-related enforcement activity;

(9)

permit nonprofit legal service providers, organizations, and attorneys to offer free legal services to individuals subject to an immigration-related enforcement activity at the time of the apprehension of such individuals; and

(10)

permit access to a telephone within 6 hours after an individual is detained.

159.

Protections against unlawful detentions of United States citizens

(a)

Notifications

(1)

In general

Prior to questioning an individual who has been detained on the basis of a suspected immigration violation or has been detained during an immigration-related enforcement activity, a Department of Homeland Security or other officer must first advise the detainee, in the language spoken by the detainee that—

(A)

the detainee has the right to be represented by counsel at no expense to the Federal Government;

(B)

the detainee may remain silent; and

(C)

any statement made by the detainee may be used against the detainee in a subsequent removal or criminal proceeding.

(2)

Effect of violation

Any evidence obtained by an officer from a detainee in violation of paragraph (1) may not be—

(A)

admissible in a removal proceeding against the detainee; or

(B)

used to confirm that the detainee is a noncitizen for purposes of issuing an immigration detainer.

(b)

Legal orientation program

(1)

In general

The Attorney General, in consultation with the Secretary, shall ensure that all detained aliens who are in, or may be subject to, detention by the Department of Homeland Security, Immigration and Customs Enforcement, and who are, or may be, in EOIR Immigration Court proceedings pursuant to sections 235, 238, 240, and 241 of the Immigration and Nationality Act receive legal orientation through a program administered and implemented by the Executive Office of Immigration Review of the Department of Justice.

(2)

Content of the program

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

(3)

Authorization of appropriations

There are authorized to be appropriated such sums as may be necessary to carry out suchlegal orientation program.

(c)

Access to counsel

(1)

In general

An individual who is subject to or detained during an immigration-related enforcement activity may be represented by legal counsel at any time.

(2)

List of free legal services

The examining officer shall, in the language spoken by the individual being detained—

(A)

provide the individual, prior to transferring the individual from the point of apprehension to the detention facility for an immigration-related violation with a list of available free or low-cost legal services provided by organizations and attorneys that are located in the region in which the arrest occurred; and

(B)

certify on the Notice to Appear issued to such individual that such a list was provided to the individual.

(3)

Amendment

Section 236 of the Immigration and Nationality Act (8 U.S.C. 1226) is amended—

(A)

by redesignating subsection (e) as subsection (l);

(B)

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

(C)

by inserting before subsection (l), as redesignated, the following:

(k)

Right of access to counsel

An individual may be represented by counsel of the individual’s choosing while being subject to any immigration-related enforcement activity, including—

(1)

interviews;

(2)

processing appointments;

(3)

booking or intake questions;

(4)

hearings; and

(5)

any procedure that may result in a conclusion that the detainee will be detained or removed from the United States.

.

(d)

Representation of disabled aliens; access to counsel

The Attorney General shall ensure that any alien with a legal, mental or physical disability that prevents him from meaningfully representing himself in proceedings shall have counsel, including counsel appointed by the Attorney General at the expense of the Government.

(e)

Notice

(1)

Amendment

Section 236 of such Act, as amended by subsection (b)(3), is further amended by inserting before subsection (k), the following:

(j)

Notice and charges

(1)

In general

Not later than 48 hours after the commencement of a detention of an individual under this section, the Secretary of Homeland Security shall—

(A)

file a Notice to Appear or other relevant charging document with the immigration court closest to the location at which the individual was apprehended; and

(B)

serve such notice or charging document on the individual.

(2)

Custody determination

Any individual who is detained under this section for more than 48 hours shall be brought before an immigration judge for a custody determination not later than 72 hours after the commencement of such detention unless the individual waives the right in accordance with paragraph (3).

(3)

Waiver

The requirements of this subsection may be waived for not more than 7 days if the detainee—

(A)

enters into a written agreement with the Department of Homeland Security to waive such requirements; and

(B)

is prima facie eligible for immigration benefits or demonstrates prima facie eligibility for a defense against removal.

.

(2)

Applicability of other law

Nothing in section 236(f) of the Immigration and Nationality Act, as added by paragraph (1), may be construed to repeal section 236A of such Act (8 U.S.C. 1226a).

(f)

Issuance of detainers

(1)

In general

Section 287(d) is amended by adding at the end the following: The alien and his or her attorney in the criminal proceeding shall be provided with a written notice of the detainer indicating the intention of the Secretary to assume custody of the alien upon completion of the pending criminal proceedings. The written notice shall include information about the specific basis for issuing the detainer and instructions about how individuals can challenge a detainer lodged in error. Where the state or federal criminal court has granted pre-trial release, and the alien has complied with conditions of such release, DHS shall not take custody of the alien until resolution of the pending criminal charges. The existence of a detainer shall not be used as a basis for denying pre-trial release. This section is the sole authority for issuance of immigration detainers..

(2)

Rulemaking

The Secretary shall issue regulations that require officials of the Department of Homeland Security to confirm, before issuing a detainer, the alienage of the individual to be made subject to such detainer. The regulations shall require officials of the Department of Homeland Security to confirm—

(A)

the alienage of an individual through lawfully obtained information, including the name of the individual; the date of birth of the individual; or the fingerprints of the individual; and

(B)

whether the individual is removable from the United States.

(3)

Data collection

The Secretary of Homeland Security shall collect data regarding detainers issued under section 287(d) of the Immigration and Nationality Act (8 U.S.C. 1357(d)) including—

(A)

the criminal charge for which the individual was arrested and/or convicted;

(B)

the date the detainer was issued;

(C)

the basis for issuance of the detainer;

(D)

the date(s) the detainer was lifted;

(E)

the date(s) of release of the individual ordered by a State or Federal criminal court or other government entity;

(F)

the date that DHS took custody of the individual;

(G)

the race and ethnicity and country of origin of the individual against whom the detainer was issued;

(H)

the disposition of criminal case;

(I)

the ultimate disposition of immigration case or whether individual was discovered to be a United States citizen;

(J)

the grounds of removal if applicable and any charges brought by the Secretary; and

(K)

the number of individuals removed after the Secretary took custody while any criminal matter was still pending.

(4)

Report on detainers

On a yearly basis beginning one year after the date of the enactment of this Act, the Secretary of Homeland Security shall report the results of the Secretary’s data collection to the Department of Homeland Security Inspector General, the Department of Justice Civil Rights Division, Congress, and the Department of Homeland Security Office of Civil Rights and Civil Liberties for purposes of ascertaining the extent to which detainers are erroneously lodged against individuals who are United States citizens or not deportable, how often individuals remain in detention unlawfully past the expiration of the detainer, whether detainers are lodged disproportionately against certain ethnicities, whether the lodging of detainers results in longer incarceration times, and whether detainers are lodged for an investigatory purpose to investigate criminal activity instead of placing individuals in removal proceedings.

(5)

Authorization of appropriations

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

160.

Basic protections for vulnerable populations

(a)

Vulnerable populations

(1)

In general

Not later than 48 hours after the commencement of an immigration-related enforcement activity, the Department of Homeland Security shall screen each detainee to determine whether the detainee is a member of a vulnerable population.

(2)

Vulnerable populations

A member of a vulnerable population includes any of the following:

(A)

Individuals with a nonfrivolous claim to United States citizenship.

(B)

Individuals who have a disability or have been determined by a medically trained professional to have medical or mental health needs.

(C)

Pregnant or nursing women.

(D)

Individuals who are detained with 1 or more of their children, and their detained children.

(E)

Individuals who provide financial, physical, and other direct support to their minor children, parents, or other dependents.

(F)

Individuals who are at least 65 years of age.

(G)

Children (as defined in section 101(b)(1) of the Immigration and Nationality Act (8 U.S.C. 1101(b)(1))).

(H)

Victims of abuse, violence, crime, or human trafficking.

(I)

Individuals who have been referred for a credible fear interview, a reasonable fear interview, or an asylum hearing.

(J)

Stateless individuals.

(K)

Individuals who have applied or intend to apply for asylum, withholding of removal, or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, done at New York, December 10, 1984, and entered into force June 26, 1987.

(L)

Individuals who make a prima facie case for eligibility for relief under any provision of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.), including returning lawful permanent residents.

(M)

Any group designated by the Secretary as a vulnerable population.

(b)

Options regarding detention decisions for vulnerable populations

Section 236 of the Immigration and Nationality Act, as amended by this Act, is further amended—

(1)

in subsection (a)—

(A)

in the matter preceding paragraph (1), by striking (c) and inserting (g); and

(B)

in paragraph (2)—

(i)

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

(ii)

in subparagraph (B), by striking but and inserting or; and

(iii)

by adding at the end the following:

(C)

the individual’s own recognizance;

;

(C)

by redesignating paragraph (3) as paragraph (4); and

(D)

by inserting after paragraph (2) the following:

(3)

may enroll the alien in a secure alternatives program; but

; and

(2)

by inserting after subsection (a) the following:

(b)

Detention decision standards

(1)

Criteria to be considered

If an alien is not subject to mandatory detention under subsection (g) or section 236A, the criteria that the Secretary or the Attorney General shall use to demonstrate that detention of the alien is necessary are the following:

(A)

Whether the alien poses a risk to public safety, including a risk to national security.

(B)

Whether—

(i)

the alien poses a risk of flight; and

(ii)

there are no conditions of release that will reasonably ensure that the alien will appear for immigration proceedings, including bond or other conditions of release that reduce the risk of flight.

(2)

Exception for mandatory detainees

The requirements described in paragraph (1) shall not apply if the Secretary of Homeland Security demonstrates by substantial evidence that the alien is subject to detention under subsection (g).

(c)

Custody decisions for vulnerable populations

(1)

In general

Not later than 72 hours after an individual is detained under this section (unless the 72-hour requirement is waived in writing by the individual), an individual who is a member of a vulnerable population (as defined by section 5(a)(3) of the Protect Citizens and Residents from Unlawful Detention Act) shall be released from the custody of the Department of Homeland Security and shall not be subject to electronic monitoring unless the Department demonstrates by a preponderance of the evidence that the individual—

(A)

is subject to mandatory custody or mandatory detention under subsection (g) or section 236A;

(B)

poses a risk to the national security of the United States; or

(C)

is a flight risk and the risk cannot be mitigated through supervision in a non-custodial secure alternatives program.

(2)

Release

An individual shall be released from custody under this subsection—

(A)

on the individual’s own recognizance;

(B)

by posting a minimum bond under subsection (a)(2)(a); or

(C)

on parole in accordance with section 212(d)(5)(A).

(d)

Decisions To detain aliens

(1)

In general

All detention decisions under this section shall—

(A)

be made in writing by an official of the Department of Homeland Security;

(B)

specify the reasons for the decision, if the decision is made to continue the detention without bond or parole; and

(C)

be served upon the detainee, in the language spoken by the alien, not later than 72 hours after—

(i)

the commencement of the detention; or

(ii)

a positive determination of credible fear of persecution or reasonable fear of persecution or torture, if the detainee is subject to section 235 or 241(a)(5).

(2)

Redetermination

(A)

Request

Any alien detained by the Department of Homeland Security, at any time after being served with the decision described in paragraph (1)(A), may request a redetermination of such decision by an immigration judge.

(B)

Other decisions

All custody decisions by the Secretary of Homeland Security shall be subject to redetermination by an immigration judge.

(C)

Savings provision

Nothing in this paragraph may be construed to prevent a detainee from requesting a bond redetermination.

(e)

Secure alternatives programs

(1)

In general

The Secretary of Homeland Security shall establish secure alternatives programs to ensure public safety and appearances at immigration proceedings.

(2)

Contract authority

The Secretary shall contract with nongovernmental organizations to conduct screening of detainees, provide appearance assistance services, and operate community-based supervision programs.

(3)

Individualized determinations

When deciding whether to use secure alternatives, the Secretary shall make an individualized determination and review each case on a monthly basis.

(4)

Custody

If an individual is not eligible for release from custody, the Secretary shall consider the alien for placement in secure alternatives that maintain custody over the alien, including the use of electronic ankle devices. The Secretary may use secure alternatives programs to maintain custody over any alien detained under this Act except for aliens detained under section 236A.

.

161.

Report on protections for vulnerable populations impacted by immigration enforcement activities

(a)

Requirement for reports

Not later than 1 year after the date of the enactment of this Act, and annually thereafter, the Secretary of Homeland Security shall submit a report to Congress that describes the impact of immigration-related enforcement activities and fugitive operations on United States citizens, lawful permanent residents, individuals otherwise lawfully present in the United States, and, where possible, undocumented aliens present in the United States.

(b)

Content

The report submitted under subsection (a) shall include an assessment of—

(1)

the number of individuals apprehended during immigration-related enforcement activities who are children, United States citizens, lawful permanent residents, lawfully present non-citizens;

(2)

immigration-related apprehensions at homes, schools, school bus stops, day care centers, colleges, places of worship, hospitals, health care clinics, funeral homes, cemeteries, victim services agencies, social services agencies, head start centers, recreation centers, legal service providers, courts and community centers;

(3)

apprehensions, detentions, and removals of sole caregivers, primary breadwinners, pregnant and nursing mothers, and other vulnerable populations during an immigration-related enforcement activity;

(4)

the extent to which the Department of Homeland Security cooperates and coordinates with State and local law enforcement during immigration-related enforcement activities;

(5)

the number of immigration-related enforcement apprehensions resulting from cooperation with State and local law enforcement;

(6)

whether apprehended individuals are provided access to a telephone;

(7)

how quickly apprehended individuals are provided access to a telephone;

(8)

the manner through which family members of the target population of the immigration-related enforcement activity are notified of their family member’s detention;

(9)

the number of parents, guardians, or caregivers of children removed from the United States;

(10)

the number of parents, guardians, or caregivers of children removed from the United States whose children accompany or join them;

(11)

the number of parents, guardians, or caregivers of children removed from the United States who are removed without their children;

(12)

the number of occasions on which both parents of a particular children are removed from the United States without their children;

(13)

the length of time the parents, guardians, or caregivers of children were present in the United States before their removal from the United Sates;

(14)

the number of United States citizen children that remain in the United States after the removal of a parent, guardian, or caregiver;

(15)

the number of individuals apprehended determined to be part of a vulnerable population released within specified time limit under section 160(c);

(16)

the length of time between when an individual is determined to be part of a vulnerable population and that individual is released under section 160(c);

(17)

the methodology of the Department of Homeland Security for notifying agents and entities under agreement with the Department of Homeland Security about standards regarding enforcement actions concerning vulnerable populations and holding them accountable when such standards are violated;

(18)

the number of officials of the Department of Homeland Security disciplined for violations during apprehensions and in making detention decisions;

(19)

transfers of immigrants during the course of an immigration-related enforcement activity, including—

(A)

whether the immigrants had access to legal counsel before being transferred;

(B)

whether the immigrant received notice of an impending transfer; and

(C)

whether the immigrant was evaluated for vulnerability under section 160(a) before being transferred;

(20)

apprehension procedures for immigration-related enforcement activities, and compliance with screening procedures for vulnerable populations;

(21)

recommendations for improving immigration-related enforcement activities and fugitive operations by reducing the negative impact on children and vulnerable populations;

(22)

secure alternatives programs, including the types of programs used, number of individuals placed in theses programs, reasons for not placing immigrants that qualify as a member of a vulnerable population as defined in section 160(a) in these programs, percentage of cases in which adjustment of immigration status is granted, percentage of cases in which removal is undertaken, and frequency of absconding; and

(23)

the number of individuals apprehended after officials were notified by a health or mental health professional.

162.

Family Detention and Unity Protections

(a)

Definition of Families with Children

- Family with Children is defined as any parent or legal guardian who is apprehended with one or more of their children.

(b)

Placement in removal proceedings

Any family with children sought to be removed by the Department of Homeland Security shall be placed in removal proceedings under section 240 of the Immigration and Nationality Act (8 U.S.C. 1229a).

(c)

Custody of families with children

The following requirements shall apply with respect to families with children:

(1)

Families with children shall not be separated or taken into custody except when justified by exceptional circumstances, or when required by law.

(2)

In exceptional circumstances where release or a secure alternatives program is not an option, the Secretary shall ensure that—

(A)

special non-penal, residential, home-like facilities that enable families to live as a family unit are designed to house families with children, taking into account the particular needs and vulnerabilities of the children;

(B)

procedures and conditions of custody are appropriate for families with children;

(C)

entities with demonstrated experience and expertise in child welfare shall staff and be responsible for the management of facilities housing families with children;

(D)

no restrictions on freedom of movement; visitations; telephone, internet, library, and law library access; possession of personal property, including personal clothing; age appropriate education; or religious practice shall apply other than to prevent flight and ensure the safety of residents;

(E)

individualized reviews by an immigration judge of each family’s well being, custody status and the need for continued detention are conducted every 30 days for any family held in such a facility for more than three weeks, and all families shall be notified in writing of the decision and of the individualized reasons for the decision; and

(F)

parents retain fundamental parental rights and responsibilities, including the discipline of children, in keeping with applicable State laws.

(d)

Discretionary waiver authority for families with children

Section 235(b)(1)(B)(iii) of the Immigration and Nationality Act (8 U.S.C. 1225(b)(1)(B)(iii)) is amended—

(1)

in subclause (IV), by striking Any alien and inserting Except as provided in subclause (V), any alien; and

(2)

by adding at the end the following:

(V)

Discretionary waiver authority for families with children

The Secretary of Homeland Security may decide for humanitarian reasons or significant public benefit not to detain families with children who are otherwise subject to mandatory detention under subclause (IV).

.

163.

Apprehension procedures for families and parents

The Department of Homeland Security and entities under agreement with the Department of Homeland Security shall—

(1)

offer confidential psychosocial and mental health services to children and family members of such individuals at the time of the apprehension;

(2)

provide, and advertise in the mainstream and foreign language media, as well as make available to the public via the website of the Department of Homeland Security, a toll-free number through which family members of persons apprehended as a result of an immigration enforcement-related activity may report information relevant to the release of an apprehended family member as a member of a vulnerable population, which will be conveyed to the appropriate Department of Homeland Security official and applicable SSA, and through which State child welfare service providers, family members, and legal counsel representing those who are apprehended may obtain information about the apprehended family members, including their location, in English and the majority language of those who are apprehended;

(3)

if there is reason to believe that an individual who is apprehended is a parent, legal guardian, or primary caregiver relative of a dependent child in the United States, provide this parent, legal guardian, or primary caregiver relative with—

(A)

confidential and toll-free telephone calls to arrange for care of dependent children within 2 hours of screening;

(B)

information regarding and contact information for legal service providers, organizations, and attorneys that can offer free legal advice regarding child welfare and custody determinations; and

(C)

information regarding and contact information for multiple State and local child welfare providers;

(4)

ensure that personnel of the Department of Homeland Security and of entities operating under agreement with the Department do not—

(A)

interrogate or screen individuals in the immediate presence of children;

(B)

interrogate, arrest, or detain any child apprehended with his or her parent or parents without the presence or consent of a parent, family member, legal guardian, or legal counsel; or

(C)

compel or request children to translate for other individuals who are encountered as part of an immigration enforcement-related activity; and

(5)

ensure that the best interests of children are considered in decisions and actions relating to the detention or release of any individual apprehended by the Department of Homeland Security, and that there be a preference for family unity whenever appropriate.

164.

Child welfare services for children separated from parents detained or removed from the United States for immigration violations

(a)

State plan requirements

Section 471(a) of the Social Security Act (42 U.S.C. 671(a)) is amended—

(1)

by striking and at the end of paragraph (32);

(2)

by striking the period at the end of paragraph (33) and inserting ; and; and

(3)

by adding at the end the following:

(34)

provides that the State shall—

(A)

create and implement protocols to provide guidance on how all employees of State agencies providing services to children under the State plan should handle cases of separated children that take into account the best interest of the child, including consideration of the best outcome for the family of the child;

(B)

develop and implement memoranda of understanding or protocols with the Department of Homeland Security, Federal, State, and local government agencies to facilitate communication between the agencies and such a child, a parent, guardian, or relative referred to in section 475(9)(B), family members of such a child, family courts, providers of services to such a child under the State plan, providers of long-term care to such a child, and legal representatives of such a child or of such a parent, guardian, or relative;

(C)

develop and implement joint protocols and training with law enforcement agencies to minimize the trauma, at the time of the apprehension of such a parent, guardian, or relative, to a child who will become a separated child as a result of the apprehension, including protocols and training for apprehension of such a parent, guardian, or relative in the presence of the child and how to best ensure appropriate and prompt care arrangements for the child;

(D)

ensure that the case manager for such a child is capable of communicating in the native language of the child and of the family of the child, or an interpreter who is so capable is provided to communicate with the child and the family of the child at no cost to the child or the family of the child;

(E)

require that, in all decisions and actions relating to the care, custody, and placement of such a child, the best interest of the child, including the best outcome for the family of the child, be considered, and ensure that the decisions are based on clearly articulated factors that do not include predictions or conclusions about immigration status or pending Federal immigration proceedings; and

(F)

coordinate with the Department of Homeland Security, foreign consular officials and nongovernmental organizations designated by the Secretary to ensure that parents of such a child who wish for the child to accompany them to their country of origin are given adequate time to obtain a passport and visa, collect all relevant vital documents such as birth certificate, health and educational records, and other information.

.

(b)

Additional information To be included in case plan

Section 475(1) of such Act (42 U.S.C. 675(1)) is amended by adding at the end the following:

(H)

In the case of a separated child with respect to whom the State plan requires the State to provide services pursuant to section 471(a)(34)—

(i)

the location of the parent, guardian, or relative referred to in paragraph (9)(B) of this subsection from whom the child has been separated; and

(ii)

a written record of each disclosure to a government agency or person (other than such a parent, guardian, or relative) of information gathered in the course of tracking the care, custody, and placement of, and follow-up services provided to, the child.

.

(c)

Separated children defined

Section 475 of such Act (42 U.S.C. 675) is amended by adding at the end the following:

(9)

The term separated children means individuals who—

(A)

have a parent, legal guardian, or primary caregiver relative who has been detained by a Federal, State, or local law enforcement agency in the enforcement of an immigration law, or removed from the United States as a result of a violation of such a law; and

(B)

are in foster care under the responsibility of a State.

.

165.

Vulnerable population and child welfare training for immigration enforcement officers

(a)

Mandatory training

(1)

In general

The Secretary of Homeland Security, in consultation with the Secretary of Health and Human Services, and independent child welfare experts shall mandate live specialized training of all Federal personnel, relevant personnel employed by those States reimbursed for activities related to care and services for separated children, and State and local personnel and relevant SSAs, who come into contact with vulnerable populations as defined at section 160(a) in all relevant legal authorities, policies, and procedures pertaining to the humanitarian and due process protections for these vulnerable populations.

(2)

Vulnerable populations

Such personnel shall be trained to work with vulnerable populations, including identifying members of a vulnerable population, and identifying members of a vulnerable population for whom asylum or special juvenile immigrant relief may be appropriate.

(3)

Mental health needs

Personnel shall establish collaborative relationships with local mental health professionals to provide training in preparation for apprehensions of individuals with mental health needs.

(4)

Best practices

Participants will be required to undertake periodic and continuing training on best practices and changes in the law, policies, and procedures for these vulnerable populations.

(b)

Memoranda of understanding

The Secretary of Homeland Security shall require all law enforcement agencies under agreement with the Department of Homeland Security to establish Memoranda of Understanding with SSAs with respect to the availability of services relevant to the humanitarian and due process protections for vulnerable populations as defined in section 160(a).

166.

Access for parents, legal guardians, and, primary caregiver relatives

(a)

In general

The Secretary of the Department of Homeland Security shall ensure that all detention facilities operated by or under agreement with the Department take steps to preserve family unity and ensure that the best outcome for families can be considered in decisions and actions relating to the custody of children whose parent, legal guardian, or primary caregiver relative is detained by reason of the parent’s, legal guardian’s, or primary caregiver relative’s immigration status.

(b)

Training

The Secretary of Homeland Security, in consultation with the Department of Health and Human Services, the Department of Justice, the Department of State, and independent family law experts, shall mandate live, specialized training of all personnel at detention facilities operated by the Department of Homeland Security or under agreement with the Department of Homeland Security in all relevant legal authorities, policies and procedures related to ensuring that parents, legal guardians, and primary caregiver relatives of children have regular, ongoing and in-person access to children, State family courts, consular officers and staff of State social service agencies responsible for administering child welfare programs. Such personnel shall be required to undertake periodic and continuing training on best practices and changes in relevant law, policies, and procedures pertaining to the preservation of family unity.

(c)

Access to children, local and state courts, child protective services, and consular officials

The Secretary of Homeland Security shall be responsible for—

(1)

ensuring that detained parents, legal guardians, and primary caregiver relatives of children under 18 years of age are granted free and confidential phone calls with their children on a daily basis;

(2)

ensuring that detained parents, legal guardians, and primary caregiver relatives of children under 18 years of age are permitted regular contact visits with their children;

(3)

ensuring that detained parents, legal guardians, and primary caregiver relatives of children under 18 years of age are able to participate fully, and to the extent possible in-person, in all family court proceedings and any other proceeding impacting upon custody of their children;

(4)

ensuring that detained parents, legal guardians, and primary caregiver relatives of children under 18 years of age are able to fully participate in and comply with all family court orders impacting upon custody of their child;

(5)

ensuring that detained parents, legal guardians, and primary caregiver relatives of children under 18 years of age have regular, on-site access to reunification programming including parenting classes;

(6)

ensuring that detained parents, legal guardians, and primary caregiver relatives of children under 18 years of age are provided with contact information for child protective services entities and family courts in all fifty States, the District of Columbia, all United States territories, and are granted free, confidential, and unlimited telephone access to child protective services entities and family courts to report child abuse, abandonment or neglect;

(7)

ensuring that detained parents, legal guardians, and primary caregiver relatives of children under 18 years of age are granted regular, confidential and in-person access to consular officials; free, unlimited, confidential phone calls to consular officials; and access to United States passport applications for the purpose of obtaining travel documents for their children;

(8)

ensuring that detained parents, legal guardians, and primary caregiver relatives of children under 18 years of age who wish to take their children with them to their country of origin are granted adequate time prior to being removed to obtain a passport and other relevant travel documents necessary for children to accompany them on their return to their country of origin or join them in their country of origin; and

(9)

facilitating detained parents’, legal guardians’, and primary caregiver relatives’ ability to reunify with their children under 18 years of age at the time of removal to their country of origin, including providing information about the detained parent, legal guardian, or primary caregiver relative’s travel arrangements to State social service agencies or other caregivers.

167.

Enhanced protections for vulnerable unaccompanied alien children and female detainees

(a)

Mandatory training

The Secretary of Homeland Security, in consultation with the Office of Refugee Resettlement of the Department of Health and Human Services and independent child welfare experts, shall mandate live training of all personnel who come into contact with unaccompanied alien children (as defined in section 462 of the Homeland Security Act of 2002 (6 U.S.C. 279)) in all relevant legal authorities, policies, and procedures pertaining to this vulnerable population.

(b)

Care and transportation

Notwithstanding any other provision of law, the Secretary of Homeland Security shall ensure that all unaccompanied children who will undergo any immigration proceedings before the Department of Homeland Security and the Executive Office for Immigration Review are duly transported and placed in the care and legal and physical custody of the Office of Refugee Resettlement within a maximum of 24 hours of their apprehension absent narrowly defined exceptional circumstances, including a natural disaster or comparable emergency beyond the control of the Secretary of Homeland Security or the Office of Refugee Resettlement. The Secretary of Homeland Security shall ensure that female officers are responsible and at all times present during the transfer and transport of female detainees who are in the custody of the Secretary of Homeland Security.

(c)

Notification

The Secretary of Homeland Security shall immediately notify the Office of Refugee Resettlement of an unaccompanied alien child in the custody of the Department of Homeland Security to effectively and efficiently coordinate the child’s transfer to and placement with the Office of Refugee Resettlement.

(d)

Notice of rights and access to counsel

The Secretary of Homeland Security shall ensure that an independent licensed social worker, as described in section 153(b)(1)(A), provides all unaccompanied alien children upon apprehension with both a video orientation and oral and written notice of their rights under the Immigration and Nationality Act including their rights to relief from removal and their rights to confer with counsel (as guaranteed under section 292 of such Act), family, or friends while in the Department of Homeland Security’s temporary custody and relevant complaint mechanisms to report any abuse or misconduct they may have experienced. The Secretary of Homeland Security shall ensure that the video orientation and written notice of rights is available in English and in the five most common native languages spoken by the unaccompanied children held in custody at that location during the preceding fiscal year, and that the oral notice of rights is available in English and in the most common native language spoken by the unaccompanied children held in custody at that location during the preceding fiscal year.

(e)

Confidentiality

The Secretary of Health and Human Services shall maintain the privacy and confidentiality of all information gathered in the course of providing care, custody, placement and follow-up services to unaccompanied alien children, consistent with the best interest of the unaccompanied alien child, by not disclosing such information to other government agencies or nonparental third parties. The Secretary may share information when authorized to do so by the child and when consistent with the child’s best interest. The Secretary may provide information to a duly recognized law enforcement entity, if such disclosure would prevent imminent and serious harm to another individual. All disclosures shall be duly recorded in writing and placed in the child’s files.

(f)

Other policies and procedures

The Secretary shall further adopt fundamental child protection policies and procedures—

(1)

for reliable age-determinations of children which exclude the use of fallible forensic testing of children’s bone and teeth developed in consultation with medical and child welfare experts;

(2)

to ensure the safe and secure repatriation and reintegration of unaccompanied alien children to their home countries through specialized programs developed in close consultation with the Secretary of State, the Office of the Refugee Resettlement and reputable independent child welfare experts including placement of children with their families or nongovernmental agencies to provide food, shelter and vocational training and microfinance opportunities;

(3)

to utilize all legal authorities to defer the child’s removal if the child faces a risk of life-threatening harm upon return including due to the child’s mental health or medical condition; and

(4)

to ensure that unaccompanied alien children (as defined in section 462 of the Homeland Security Act of 2002 (6 U.S.C. 279)) are physically separated from any adult who is not a family member, guardian, or caregiver and are separated by sight and sound from immigration detainees and inmates with criminal convictions, pretrial inmates facing criminal prosecution, children who have been adjudicated delinquents or convicted of adult offenses or are pending delinquency or criminal proceedings, and those inmates exhibiting violent behavior while in detention as is consistent with the Juvenile Justice and Delinquency Prevention Act of 1974 (42 U.S.C. 5601 et seq.).

168.

Preventing unnecessary detention of refugees

Section 209 of the Immigration and Nationality Act (8 U.S.C. 1159) is amended—

(1)

in subsection (a)(1) by striking return or be returned to the Department of Homeland Security for inspection and examination for admission and also in accordance with the provisions of sections 235, 240, and 241 and inserting be eligible for adjustment of status;

(2)

in subsection (a)(2) by striking upon inspection and examination; and

(3)

in subsection (c) by adding at the end An application for adjustment under this section may be filed up to 3 months before the date the applicant would first otherwise be eligible for adjustment under this section..

169.

Reports on protections from unlawful detention

(a)

Report requirement

Not later than 1 year after the date of the enactment of this Act, and annually thereafter, the Secretary shall prepare and submit a report to Congress that describes the impact of worksite and fugitive operations on United States citizens, lawful permanent residents, and individuals otherwise lawfully present in the United States.

(b)

Content

The report submitted under subsection (a) shall include an assessment of—

(1)
(A)

United States Immigration and Customs Enforcement protocol for humanitarian screening during a worksite enforcement action;

(B)

the compliance with such protocol; and

(C)

the nature of any related protocol in smaller worksite or nonworksite actions;

(2)

collateral arrests under the National Fugitive Operations Program and worksite enforcement initiatives;

(3)

whether individuals detained in an immigration-related enforcement activity are notified of their right to counsel;

(4)

whether United States Immigration and Customs Enforcement agents—

(A)

use excessive force in executing warrants, arrests, detentions, or other immigration-enforcement activities;

(B)

enter private homes or residences without a search warrant or consent; or

(C)

display and use weapons during immigration-enforcement activities or interrogations;

(5)

whether United States Immigration and Customs Enforcement agents identify themselves when entering a location for enforcement purposes;

(6)

the conditions under which individuals are confined;

(7)

whether detainees are notified of their rights in a language they can understand;

(8)

whether individuals detained during a raid or an immigration enforcement activity are forced or coerced to sign any documents or waive any rights without consulting with an attorney;

(9)

the procedures used by the Department of Homeland Security—

(A)

to notify agents about humanitarian standards regarding enforcement actions; and

(B)

hold agents accountable when they violate such standards;

(10)

the per detainee cost of each raid involving more than 50 detainees;

(11)

the number of United States Immigration and Customs Enforcement agents disciplined for violations in detention proceedings; and

(12)

recommendations for improving worksite operations and fugitive operations.

(c)

Authorization of appropriations

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

170.

Rulemaking

Not later than 1 year after the date of the enactment of this Act, the Secretary shall promulgate regulations to implement this subtitle and the amendments made by this subtitle.

C

Enforcement

181.

Labor enforcement

(a)

Labor enforcement actions

Section 274A(e) of the Immigration and Nationality Act (8 U.S.C. 1324a(e)) is amended to add a new paragraph (10).

(10)

Conduct in enforcement actions

(A)

Enforcement action

When an enforcement action is undertaken by the Department of Homeland Security and the Department receives information that there is a labor dispute in progress, or that information was provided to the Department of Homeland Security to retaliate against employees for exercising their employment rights, the Department shall ensure that any aliens who are arrested or detained and are necessary for the prosecution of any labor or employment law violations are not removed from the country without notifying the appropriate law enforcement agency that has jurisdiction over the violations and providing the agency with the opportunity to interview such aliens. The Department shall ensure that no aliens entitled to a stay of removal under this section are removed.

(B)

Interviews

Any arrangements for aliens to be held or interviewed shall be made in consultation with the relevant labor and employment law enforcement agencies.

(C)

Stay of removal

(i)

An alien against whom removal proceedings have been initiated pursuant to chapter 4 of title III of the Immigration and Nationality Act, who has filed a workplace claim or who is a material witness in any pending or anticipated proceeding involving a workplace claim, shall be entitled to a stay of removal and to an employment authorized endorsement unless the Department establishes by a preponderance of the evidence in proceedings before the immigration judge presiding over that alien’s removal hearing that—

(I)

the Department initiated the alien’s removal proceeding for wholly independent reasons and not in any respect based on, or as a result of, any information provided to or obtained by the Department from the aliens employer, from any outside source, including any anonymous source, or as a result of the filing or prosecution of the workplace claim; and

(II)

the workplace claim was filed in a bad faith with the intent to delay or avoid the alien’s removal.

(ii)

Any stay of removal or work authorization issued pursuant to subsection (i) shall remain valid and in effect at least during the pendency of the proceedings concerning such workplace claim. The Secretary of Homeland Security shall extend such relief for a period of not longer than 3 additional years upon determining that—

(I)

such relief would enable the alien asserting the workplace claim to be made whole;

(II)

the deterrent goals of any statute underlying the workplace claim would thereby be served; or

(III)

such extension would otherwise further the interests of justice.

(iii)

In this section—

(I)

the term workplace claim shall include any claim, charge, complaint, or grievance filed with or submitted to the employer, a Federal or State or local agency or court, or an arbitrator, to challenge an employer’s alleged civil or criminal violation of any legal or administrative rule or requirement affecting the terms or conditions of its workers employment, the treatment of workers, or the hiring or firing of its workers; and

(II)

the term material witness means an individual who presents a declaration from an attorney investigating, prosecuting, or defending the workplace claim or from the presiding officer overseeing the workplace claim attesting that, to the best of the declarant’s knowledge and belief, reasonable cause exists to believe that the testimony of the individual will be relevant to the outcome of the workplace claim.

(b)

Whistle blower protections; Victims of criminal activity

Section 101(a)(15)(U) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(U)) is amended—

(1)

in clause (ii), by striking and at the end;

(2)

in clause (iii)—

(A)

by striking or before attempt; and

(B)

by adding at the end the following: a civil violation of Federal, State, orlocal employment or labor laws; and; and

(3)

by adding at the end the following:

(iv)

the Secretary may not grant a petition filed by an alien based on a civil violation of Federal employment or labor laws unless the alien has—

(I)

a reasonable fear of retaliation based on immigration status;

(II)

has been threatened with retaliation based on immigration; or

(III)

has been retaliated against based on immigration status for attempting to remedy such violations; or

.

182.

Mandatory address reporting requirements

(a)

Clarifying address reporting requirements

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

(1)

in subsection (a)—

(A)

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

(B)

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

(C)

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

(2)

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

(3)

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

(4)

by adding at the end the following:

(d)

Address To be provided

(1)

In general

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

(2)

Specific requirements

The Secretary may provide specific requirements with respect to—

(A)

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

(B)

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

(3)

Detention

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

(e)

Use of most recent address provided by the alien

(1)

In general

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

(A)

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

(B)

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

(C)

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

(D)

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

(2)

Reliance

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

(3)

Obligation

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

(f)

Requirement for database

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

.

(b)

Conforming changes with respect to registration requirements

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

(1)

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

(2)

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

(3)

in section 264—

(A)

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

(B)

in subsection (f)—

(i)

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

(ii)

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

(c)

Effect on eligibility for immigration benefits

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

(d)

Technical amendments

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

(e)

Effective dates

(1)

In general

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

(2)

Exceptions

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

183.

Preemption of State and local law

(a)

Preemption

This Act preempts any State or local law, contract, license, or other standard, requirement, action or instrument—

(1)

discriminating among persons on the basis of immigration status, except as specifically authorized in Federal law; or

(2)

imposing any sanction or liability—

(A)

on any individual based on his or her immigration status;

(B)

on any person or entity based on the immigration status of its clients, employees, tenants, or other associates; or

(C)

relating to a violation or alleged violation of immigration law.

(b)

Definition

For purposes of this section, immigration status refers to a person’s present or previous: visa classification, refugee status, temporary protected status, status as an immigrant lawfully admitted for permanent residence, lawful presence, work authorization, or other classification or category created by, or related to this, Act or the Immigration and Nationality Act.

184.

Delegation of immigration authority

Section 287(g) (8 U.S.C. 1357(g)) is amended to read as follows:

(g)

Except as provided in section 103(a)(10), 242, or 274(c), the authority to investigate, identify, apprehend, arrest, or detain persons for a violation of any section of this Act or regulation pursuant to this Act is restricted to immigration officers and employees of the Department. Any such authority is further subject to any specific limitations set forth in this Act.

.

185.

Immigration and Customs Enforcement Ombudsman

(a)

Establishment

Subtitle D of title III of the Homeland Security Act of 2002 (6 U.S.C. 251 et seq.) is amended by adding at the end the following:

447.

Immigration and Customs Enforcement Ombudsman

(a)

In general

There established in the Department of Homeland Security a position of Immigration and Customs Enforcement Ombudsman (referred to in this section as the Ombudsman).

(b)

Requirements

The Ombudsman shall—

(1)

report directly to the Assistant Secretary for Immigration and Customs Enforcement (referred to in this section as the Assistant Secretary); and

(2)

have a background in immigration law.

(c)

Functions

The Ombudsman shall—

(1)

undertake regular and unannounced inspections of detention facilities and local offices of United States Immigration and Customs Enforcement to determine whether the facilities and offices comply with relevant policies, procedures, standards, laws, and regulations;

(2)

report all findings of compliance or noncompliance of the facilities and local offices described in paragraph (1) to the Secretary and the Assistant Secretary;

(3)

develop procedures for detainees or their representatives to submit confidential written complaints directly to the Ombudsman;

(4)

investigate and resolve all complaints, including confidential and anonymous complaints, related to decisions, recommendations, acts, or omissions made by the Assistant Secretary or the Commissioner of United States Customs and Border Protection in the course of custody and detention operations;

(5)

initiate investigations into allegations of systemic problems at detention facilities;

(6)

conduct any review or audit relating to detention, as directed by the Secretary or Assistant Secretary;

(7)

refer matters, as appropriate, to the Office of Inspector General of the Department of Justice, the Office of Civil Rights and Civil Liberties of the Department, or any other relevant office or agency;

(8)

propose changes in the policies or practices of United States Immigration and Customs Enforcement to improve the treatment of United States citizens and residents, immigrants, detainees, and others subject to immigration-related enforcement operations;

(9)

establish a public advisory group consisting of nongovernmental organization representatives and Federal, State, and local government officials with expertise in detention and vulnerable populations to provide the Ombudsman with input on—

(A)

the priorities of the Ombudsman; and

(B)

current practices of United States Immigration and Customs Enforcement; and

(10)

recommend to the Assistant Secretary personnel action based on any finding of noncompliance.

(d)

Annual report

(1)

Objectives

Not later than June 30 of each year, the Ombudsman shall prepare and submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives on the objectives of the Office of the Ombudsman for the next fiscal year.

(2)

Contents

Each report submitted under paragraph (1) shall include—

(A)

full and substantive analysis of the objectives of the Office of the Ombudsman;

(B)

statistical information regarding such objectives;

(C)

a description of each detention facility found to be in noncompliance with the detention standards of the Department of Homeland Security or other applicable regulations;

(D)

a description of the actions taken by the Department of Homeland Security to remedy any findings of noncompliance or other identified problems;

(E)

information regarding whether the actions described in subparagraph (D) resulted in compliance with detention standards;

(F)

a summary of the most pervasive and serious problems encountered by individuals subject to the enforcement operations of the Department of Homeland Security, including a description of the nature of such problems; and

(G)

such other information as the Ombudsman may consider advisable.

.

(b)

Amendment

The table of contents in section 1(b) of the Homeland Security Act of 2002 (6 U.S.C. 101 et seq.) is amended by inserting after the item relating to section 446 the following:

Sec. 447. Immigration and Customs Enforcement Ombudsman.

.

186.

Eliminating arbitrary bar to asylum

Section 208(a)(2) (8. U.S.C. 1158(a)(2)) is amended—

(1)

by striking subparagraph (B);

(2)

in subparagraph (C), by striking (D) and inserting (C);

(3)

in subparagraph (D), by striking subparagraphs (B) and (C), and inserting subparagraph (B),; and

(4)

by redesignating subparagraphs (C) and (D) as subparagraphs (B) and (C), respectively.

187.

Restoration of judicial review

Section 242 (8 U.S.C. 1252) is amended—

(1)

by striking subsection (a)(2) (matters not subject to judicial review);

(2)

in subsection (b)(1), by striking 30 days and inserting 60 days;

(3)

in subsection (b)(3)(B), by striking does not and inserting shall;

(4)

in subsection (b)(3)(C), by striking shall and inserting may;

(5)

in subsection (b)(4)(B), by striking any reasonable adjudicator would be compelled to conclude to the contrary and inserting the findings are not supported by substantial evidence;

(6)

in subsection (b)(8)(C), by inserting unless a stay is automatically granted by any provision of law or any court of competent jurisdiction after to defer removal of the alien;

(7)

in subsection (b)(9), by striking Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of title 28 or any other habeas corpus provision, by section 1361 or 1651 of such title, or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact.;

(8)

by striking subsection (e)(1)(B);

(9)

in subsection (e)(2)(B) by inserting lawfully after was and before ordered;

(10)

by striking subsection (e)(3);

(11)

by redesignating subsection (e)(4) as subsection (e)(3);

(12)

by redesignating subsection (e)(5) as subsection (e)(4);

(13)

by striking subsection (f);

(14)

by redesignating subsection (g) as subsection (f); and

(15)

in subsection (g) (as so redesignated), by striking and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title,.

II

Employment Verification

201.

Employment verification

(a)

In general

Section 274A (8 U.S.C. 1324a) is amended to read as follows:

274A.

Employment verification

(a)

Making employment of unauthorized aliens unlawful

(1)

In general

It is unlawful for an employer—

(A)

to hire, recruit, or refer for a fee an alien for employment in the United States knowing or with reckless disregard that the alien is an unauthorized alien with respect to such employment; or

(B)

to hire in the United States an individual unless such employer meets the requirements of subsections (b) and (c).

(2)

Continuing employment

It is unlawful for an employer, after lawfully hiring an alien for employment, to continue to employ the alien in the United States knowing that the alien is (or has become) an unauthorized alien with respect to such employment.

(3)

Use of labor through contract

An employer who uses a contract, subcontract, or exchange entered into, renegotiated, or extended after the date of the enactment of this Act to obtain the labor of an alien in the United States knowing or with reckless disregard that the alien is an unauthorized alien with respect to performing such labor, shall be considered to have hired the alien for employment in the United States in violation of paragraph (1)(A).

(4)

Treatment of documentation for certain employees

(A)

In general

For purposes of this section, if—

(i)

an individual is a member of a collective-bargaining unit and is employed, under a collective bargaining agreement entered into between one or more employee organizations and an association of two or more employers, by an employer that is a member of such association; and

(ii)

within the period specified in subparagraph (B), another employer that is a member of the association (or an agent of such association on behalf of the employer) has complied with the requirements of subsection (b) of this section with respect to the employment of the individual, the subsequent employer shall be deemed to have complied with the requirements of subsection (b) of this section with respect to the hiring of the employee and shall not be liable for civil penalties described in subsection (d)(4) of this section.

(B)

Period

The period described in this subparagraph is 3 years, or, if less, the period of time that the individual is authorized to be employed in the United States.

(C)

Liability

(i)

In general

If any employer that is a member of an association hires for employment in the United States an individual and relies upon the provisions of subparagraph (A) to comply with the requirements of subsection (b) of this section and the individual is an alien not authorized to work in the United States, then for the purposes of paragraph (1)(A), subject to clause (ii), the employer shall be presumed to have known at the time of hiring or afterward that the individual was an alien not authorized to work in the United States.

(ii)

Rebuttal of presumption

The presumption established by clause (i) may be rebutted by the employer only through the presentation of clear and convincing evidence that the employer did not know (and could not reasonably have known) that the individual at the time of hiring or afterward was an alien not authorized to work in the United States.

(iii)

Exception

Clause (i) shall not apply in any prosecution under subsection (e)(1) of this section.

(5)

Order of internal review and certification of compliance

(A)

Authority to require certification

If the Secretary has reasonable cause to believe that an employer has failed to comply with this section, the Secretary is authorized, at any time, to require that the employer certify that the employer is in compliance with this section or has instituted a program to come into compliance with the section.

(B)

Content of certification

Not later than 60 days after the date an employer receives a request for a certification under subparagraph (A) the employer shall certify under penalty of perjury that—

(i)

the employer is in compliance with the requirements of subsections (b) and (c); or

(ii)

that the employer has instituted a program to come into compliance with such requirements.

(C)

Extension

The 60-day period referred to in subparagraph (B), may be extended by the Secretary for good cause, at the request of the employer.

(D)

Publication

The Secretary is authorized to publish in the Federal Register standards or methods for certification under subparagraph (A) and for specific recordkeeping practices with respect to such certification, and procedures for the audit of any records related to such certification.

(6)

Defense

(A)

In general

Subject to subparagraph (B), an employer that establishes that the employer has complied in good faith, notwithstanding a technical or procedural failure, with the requirements of subsections (b) and (c) with respect to the hiring of an individual has established an affirmative defense that the employer has not violated paragraph (1)(B) with respect to such hiring.

(B)

Exception

Until the date that an employer is required to participate in the Electronic Employment Verification System under subsection (c), the employer may establish an affirmative defense under subparagraph (A) without a showing of compliance with subsection (c).

(7)

No authorization of national identification cards

Nothing in this title may be construed to authorize, directly or indirectly, the issuance, use, or establishment of a national identification card or a national identification system.

(b)

Document verification requirements

An employer hiring an individual for employment in the United States shall verify that the individual is eligible for such employment by meeting the following requirements:

(1)

Attestation by employer

(A)

Requirements

(i)

In general

The employer shall attest, under penalty of perjury and on a form prescribed by the Secretary, that the employer has verified the identity and eligibility for employment of the individual by examining an original, unexpired document or documents described in section 274a.2(b)(1)(v) of title 8, Code of Federal Regulation as evidence of the individual’s employment authorization and identity.

(ii)

Signature requirements

An attestation required by clause (i) may be manifested by a handwritten or electronic signature.

(iii)

Standards for examination

An employer has complied with the requirement of this paragraph with respect to examination of a document if the document examined reasonably appears on its face to be genuine and relates to the individual whose identity and eligibility for employment in the United States is being verified. Nothing in this paragraph may be construed as requiring the employer to solicit the production of any other document or as requiring the individual to produce such other document.

(B)

Authority to prohibit use of certain documents

(i)

Authority

If the Secretary finds that a document or class of documents described in subparagraph (A)(i) is not reliable to establish identity or eligibility for employment (as the case may be) or is being used fraudulently to an unacceptable degree, the Secretary is authorized to prohibit, or impose conditions on, the use of such document or class of documents for purposes of this subsection.

(ii)

Requirement for publication

The Secretary shall publish notice of any findings under clause (i) in the Federal Register.

(2)

Attestation of individual

(A)

In general

The individual shall attest, under penalty of perjury on a form prescribed by the Secretary, that the individual is—

(i)

a national of the United States;

(ii)

an alien lawfully admitted for permanent residence; or

(iii)

an alien who is authorized under this Act or by the Secretary to be employed in the United States.

(B)

Signature for examination

An attestation required by subparagraph (A) may be manifested by a handwritten or electronic signature.

(C)

Penalties

An individual who falsely attests that he or she is eligible for employment in the United States shall be subject to the terms and penalties regarding document fraud described in section 274C of the Immigration and Nationality Act.

(D)

Schedule

(i)

Replacement documents

An employer shall accept a receipt for the application for a replacement document or a document described in subparagraph (B) of subsection (b)(1) in lieu of the required document in order to comply with any requirement to examine documentation imposed by this section, in the following circumstances:

(I)

The individual is unable to provide the required document within the time specified in this section because the document was lost, stolen, or damaged.

(II)

The individual presents a receipt for the application for the document within the time specified in this section.

(III)

The individual presents the document within 90 days of the hire. If the actual document or replacement document is to be issued by the United States Citizenship and Immigration Services and the application is still under review 60 days after receipt of the application, United States Citizenship and Immigration Services shall, not later than the 60th day after receipt of the application, issue a letter for the applicant to take to the employer which shall automatically grant the individual an additional 90 days from the original deadline in subsection (b)(6)(A)(i)(II) to present the document or replacement document; and

(ii)

Prohibition on acceptance of a receipt for short-term employment

An employer may not accept a receipt in lieu of the required document if the individual is hired for a duration of less than 10 working days.

(3)

Document retention and recordkeeping requirements

The System described in subsection (c) shall include an auto-save feature allowing the employer to retain an electronic version of an attestation submitted under paragraph (1) or (2) for an individual and a record of any action taken, and copies of any correspondence written or received, with respect to the verification of an individual’s identity or eligibility for employment in the United States, including records received through the Electronic Employment Verification System under subsection (c). The employer shall retain such records, either in electronic, paper, microfiche, or microfilm form, and make such attestations available for inspection by an officer of the Department of Homeland Security, any other person designated by the Secretary, the Special Counsel for Immigration-Related Unfair Employment Practices of the Department of Justice, or the Secretary of Labor—

(A)

during a period beginning on the date of the hiring of the individual and ending on the date that is the later of—

(i)

3 years after the date of such hiring; or

(ii)

1 year after the date the individual’s employment is terminated; or

(B)

during a shorter period determined by the Secretary, if the Secretary reduces the period described in subparagraph (A) for the employer or a class of employers that includes the employer.

(C)

Use of retained documents

An employer shall use copies retained under clause (i) or (ii) of subparagraph (A) only for the purposes of complying with the requirements of this subsection, except as otherwise permitted under law.

(4)

Penalties

An employer that fails to comply with the requirement of this subsection shall be subject to the penalties described in subsection (d)(4)(B).

(c)

Electronic employment verification system

(1)

Requirement for system

The Secretary, in cooperation with the Commissioner of Social Security, shall implement an Electronic Employment Verification System (referred to in this subsection as the System) as described in this subsection.

(2)

Technology standard to verify employment eligibility

(A)

In general

The Secretary, based upon recommendations from the Director of the National Institute of Standards and Technology, shall not later than 180 days after the date of the enactment of the this Act develop and certify a technology standard as described in this subparagraph. The Secretary shall have discretion to extend the 180-day period if the Secretary determines that such extension will result in substantial improvement of the System.

(B)

Integrated

Notwithstanding any other provision of Federal law, the technology standard developed shall be the technological basis for a secure cross-agency, cross-platform electronic system that is a cost-effective, efficient, fully integrated means to share immigration and Social Security information necessary to confirm the employment eligibility of all individuals seeking employment while protecting individual privacy.

(C)

Report

Not later than 18 months after the date of the enactment of this Act, the Secretary and the Director of the National Institute of Standards and Technology shall jointly submit to Congress a report describing the development, implementation, efficacy, and privacy implications of the technology standard and the System.

(3)

Identity and employment eligibility verification

An employer shall verify the identity and eligibility for employment of an individual hired by the employer through the System as follows:

(A)

Initial inquiry

The employer shall submit through the Internet or other electronic media, or over a telephone line an inquiry through the System to seek confirmation of the individual’s identity and eligibility for employment in the United States not earlier than on the first day such employment actually commences and not later than 5 working days after the date such employment actually commences.

(i)

In general

The Secretary, through the System, shall confirm or tentatively nonconfirm an individual’s identity and eligibility for employment in the United States not later than 1 working day after an employer submits an inquiry regarding the employee.

(ii)

Manual verification

If the System provides a tentative nonconfirmation with respect to an individual under clause (i), the Secretary and/or Commissioner shall complete a secondary manual verification not later than 6 working days after such tentative nonconfirmation is made.

(iii)

Determination

Not later than 10 days after the employer submits an inquiry under subparagraph (A) the Secretary, through the System, shall provide to the employer the results of the verification required by clause (i) and (ii). Such results shall be a determination that—

(I)

confirms the individual’s identity and eligibility for employment in the United States; or

(II)

the System is tentatively unable to confirm the individual’s identity or eligibility for employment (referred to in this section as a tentative nonconfirmation).

(B)

Submission of information

An individual who is the subject of a tentative nonconfirmation may submit to the Secretary or Commissioner, through the System, information to confirm such individual’s identity or eligibility for employment or to otherwise contest such tentative nonconfirmation not later than 15 working days after the individual receives notice of such tentative nonconfirmation.

(C)

Extension

The 15-day period referred to in subparagraph (B) may be extended by the Secretary for good cause at the request of the individual.

(D)

Prohibition on termination for tentative nonconfirmation

An employer may not terminate the employment of an individual based on tentative nonconfirmation.

(E)

Final determination

Not later than 10 days after the individual contests such tentative nonconfirmation or, in the case of an individual who fails to contest such tentative nonconfirmation, not later than 25 days after the date of the initial tentative nonconfirmation, the Secretary shall provide, through the system to the employer the results of the verification. Such results shall be a determination that—

(i)

confirms the individual’s identity and eligibility for employment in the United States; or

(ii)

the System is unable to confirm the individual’s identity or eligibility for employment (referred to in this section as a final nonconfirmation).

(F)

Administrative and judicial review

If the Secretary, through the System, provides a final nonconfirmation with respect to an individual, the individual shall have the right to administrative review under paragraph (21) and judicial review under paragraph (22) of such final nonconfirmation.

(G)

Termination of employee

If an employer receives a final nonconfirmation with respect to an individual under paragraph (E), the employer shall terminate the employment of such individual after the conclusion of the 30-day period for the individual to file an administrative appeal as described in paragraph (21), unless the Secretary or the Commissioner stays the final nonconfirmation notice pending the resolution of the administrative appeal or judicial review.

(H)

Right to review and correct system information

(i)

The Secretary, in consultation with the Commissioner of Social Security, shall establish procedures to permit an individual to verify the individual’s eligibility for employment in the United States prior to obtaining or changing employment, to view the individual’s own records in the System in order to ensure the accuracy of such records, and to correct or update the information used by the System regarding the individual. To the greatest practicable extent such procedures shall allow electronic submission of such information.

(ii)

The Secretary, in consultation with the Commissioner of Social Security, shall establish procedures for an Enhanced Verification System under paragraph (25) through which an individual who has viewed the individual’s own record may electronically block he use of the individual’s social security number and may register a phone number or e-mail address to be contacted upon removal of the block under the System and remove such block in order to prevent the fraudulent or other misuse of a social security account number, prevent employer misuse of the system, protect privacy, and limit erroneous non-confirmations during employment verification.

(H)

Reverification

(i)

In general

It is an unfair immigration-related employment practice under section 274B for an employer to reverify an individual’s identity and employment eligibility unless—

(I)

the individual’s work authorization expires as described in section 274a.2(b)(1)(vii) of title 8, Code of Federal Regulation or a subsequent similar regulation, in which case—

(aa)

not later than 30 days prior to the expiration of the individual’s work authorization, the Secretary shall notify the employer of such expiration and of the employer’s need to reverify the individual’s employment eligibility; and

(bb)

the individual may present, and the employer shall accept, a receipt for the application for a replacement document, extension of work authorization, or a document described in clause (i) through (v) of subparagraph (B) of subsection (b)(1) in lieu of the required document by the expiration date in order to comply with any requirement to examine documentation imposed by this section, and the individual shall present the required document within 90 days from the date the employment authorization expires. If the actual document or replacement document is to be issued by United States Citizenship and Immigration Services and the application is still under review 60 days after the employment authorization expiration date, United States Citizenship and Immigration Services shall by the 60th day after the expiration date of the employment authorization, issue a letter for the applicant to take to the employer which shall automatically grant the individual an additional 90 days to present the document or replacement document; and

(II)

the employer has actual or constructive knowledge that the individual is not authorized to work in the United States; or

(III)

unless otherwise required by law.

(ii)

Continuing employment

An employer may not verify an individual’s employment eligibility if the individual is continuing in his or her employment as described in section 274a.2(b)(1)(viii) of title 8, Code of Federal Regulation or any subsequent similar regulation.

(4)

Design and operation of system

The Secretary, in consultation with the Commissioner of Social Security, shall design and operate the System—

(A)

to maximize reliability and ease of use by employers and employees in a manner that protects and maintains the privacy and security of the information maintained in the System;

(B)

to permit an employer to submit an inquiry to the System through the Internet or other electronic media or over a telephone line;

(C)

to respond to each inquiry made by an employer;

(D)

to maintain a record of each such inquiry and each such response;

(E)

to track and record any occurrence when the System is unable to receive such an inquiry;

(F)

to include appropriate administrative, technical, and physical safeguards to prevent unauthorized disclosure of personal information during use, transmission, storage, or disposal of that information, including the use of encryption, carrying out periodic testing of the System to detect, prevent, and respond to vulnerabilities or other failures, and utilizing periodic security updates;

(G)

to allow for monitoring of the use of the System and provide an audit capability;

(H)

to have reasonable safeguards, developed in consultation with the Attorney General, to prevent employers from engaging in unlawful discriminatory practices;

(I)

to permit an employer to submit the attestations required by subsection (b); and

(J)

to permit an employer to utilize any technology that is consistent with this section and with any regulation or guidance from the Secretary to streamline the procedures to comply with the attestation and employment eligibility verification requirements contained in this section.

(5)

Limitation on data elements stored

(A)

The System and any databases created by the Commissioner of Social Security or the Secretary for use in the System shall store only the minimum data about each individual for whom an inquiry was made through the System to facilitate the successful operation of the System, and in no case shall the data stored be other than—

(i)

the individual’s full legal name;

(ii)

the individual’s date of birth;

(iii)

the individual’s social security account number or employment authorization status identification number;

(iv)

the address of the employer making the inquiry and the dates of any prior inquiries concerning the identity and authorization of the individual by the employer or any other employer and the address of such employer;

(v)

a record of each prior determination regarding the individual’s identity and employment eligibility issued through the System; and

(vi)

in the case of the individual who successfully contested or appealed a tentative nonconfirmation or final nonconfirmation, explanatory information concerning the successful resolution of any erroneous data or confusion regarding the identity or eligibility for employment of the individual, including the source of that error.

(B)

Information provided pursuant to subsection (c)(5)(A)(i)–(v) shall be deleted from the System one year after the date of entry unless the Secretary shall determine it is relevant to an ongoing determination or appeal, a review of errors or compensation for errors, or an ongoing investigation of fraud or misuse of the system. The Secretary shall not retain any data pursuant to this subsection after the completion of an appeal or investigation except as described in subsection (c)(5)(A)(vi).

(6)

Responsibilities of the commissioner of social security

The Commissioner of Social Security shall establish a reliable, secure method to provide through the System, within the time periods required by subparagraphs (B) and (C) of paragraph (2)—

(A)

a confirmation of whether or not the individual is a United States citizen;

(B)

a determination of whether the name and social security account number provided, with respect to an individual, in an inquiry by an employer, match such information maintained by the Commissioner in order to confirm the validity of the information provided;

(C)

a determination of whether such social security account number was issued to the individual; and

(D)

a determination described in subparagraph (B) or (C) of paragraph (2), in a manner that ensures that other information maintained by the Commissioner is not disclosed or released to employers through the System.

(7)

Responsibilities of the secretary

The Secretary shall establish a reliable, secure method to provide, through the System, within the time periods required by subparagraphs (B) and (C) of paragraph (2)—

(A)

a determination of whether the name and alien identification or authorization number provided, with respect to an individual, in an inquiry by an employer match such information maintained by the Secretary in order to confirm the validity of the information provided;

(B)

a determination of whether such number was issued to the individual;

(C)

a determination of whether the individual is authorized to be employed in the United States; and

(D)

any other related information that the Secretary determines is appropriate.

(8)

Privacy impact assessment

The Commissioner of Social Security and the Secretary shall each complete a privacy impact assessment as described in section 208 of the E-Government Act of 2002 (Public Law 107–347; 44 U.S.C. 3501 note) with regard to the System.

(9)

Training

Not later than 6 months before implementation of the EEVS, the Commissioner of Social Security and the Secretary shall institute a comprehensive program of outreach and training for employers regarding the operation of the verification system described in this section and informing them of ongoing assistance resources for the implementation and use of such systems.

(10)

Public education

Not later than 6 months before implementation of the EEVS, the Commissioner of Social Security and the Secretary shall develop a public education campaign regarding the obligations imposed by this section as well as instructional materials provided without cost to the public regarding how to use the EEVS.

(11)

Hotline

The Secretary shall establish a fully staffed 24-hour toll-free hotline that shall receive inquiries from individuals or employers concerning determinations made by the System and shall identify for an individual, at the time of inquiry, the particular data that resulted in a determination that the System was unable to verify the individual’s identity or eligibility for employment.

(12)

Participation

(A)

Requirements for participation

Except as provided in subparagraphs (D) and (E), the Secretary shall require employers to participate in the System as follows:

(i)

Critical employers

Not later than 6 months after the date of enactment of this Act, the Secretary shall require all agencies and departments of the United States (including the Armed Forces), a State government (including a State employment agency before making a referral), or any other employer if it employs individuals working in a location that is a Federal, State, or local government building, a military base, a nuclear energy site, a weapon site, or an airport, but only to the extent of such individuals, to participate in the System, with respect to all individuals hired after the date the Secretary requires such participation.

(ii)

Large employers

Not later than 1 year after the date of enactment of this Act the Secretary shall require an employer with 5,000 or more employees in the United States to participate in the System, with respect to all employees hired by the employer after the date the Secretary requires such participation.

(iii)

Midsized employers

Not later than 2 years after the date of enactment of this Act the Secretary shall require an employer with less than 5,000 employees and 1,000 or more employees in the United States to participate in the System, with respect to all employees hired by the employer after the date the Secretary requires such participation.

(iv)

Small employers

Not later than 3 years after the date of the enactment of the this Act, the Secretary shall require all employers with less than 1,000 employees in the United States to participate in the System, with respect to all employees hired by the employer after the date the Secretary requires such participation.

(B)

Requirement to publish

The Secretary shall publish in the Federal Register the requirements for participation in the System for employers described in clauses (i) through (iv) of subparagraph (A) prior to the effective date of such requirements.

(C)

Other participation in system

Notwithstanding subparagraph (A), the Secretary has the authority to permit any employer that is not required to participate in the System under subparagraph (A) to participate in the System on a voluntary basis

(D)

Waiver

(i)

Authority to provide a waiver

The Secretary is authorized to waive or delay the participation requirements of subparagraph (A) with respect to any employer or class of employers if the Secretary provides notice to Congress of such waiver prior to the date such waiver is granted.

(ii)

Requirement to provide a waiver

The Secretary shall waive or delay the participation requirements of subparagraph (A) with respect to any employer or class of employers until the date that the Comptroller General of the United States submits the initial certification described in paragraph (19)(E) and shall waive or delay such participation during a year if the Comptroller General fails to submit a certification of paragraph (19)(E) for such year.

(E)

Consequence of failure to participate

If an employer is required to participate in the System and fails to comply with the requirements of the System with respect to an individual—

(i)

such failure shall be treated as a violation of subsection (a)(1)(B); and

(ii)

a rebuttable presumption is created that the employer has violated subsection (a)(1)(A), however, such presumption may not apply to a prosecution under subsection (e)(1).

(13)

Employer requirements

(A)

In general

An employer that participates in the System, with respect to the hiring of an individual for employment in the United States, shall—

(i)

notify the individual of the use of the System and that the System may be used for immigration enforcement purposes;

(ii)

obtain from the individual the documents required by subsection (b)(1) and record on the form designated by the Secretary—

(I)

the individual’s social security account number; and

(II)

in the case of an individual who does not attest that the individual is a national of the United States under subsection (b)(2), such identification or authorization number that the Secretary shall require;

(iii)

retain such form in electronic, paper, microfilm, or microfiche form and make such form available for inspection for the periods and in the manner described in subsection (b)(3); and

(iv)

safeguard any information collected for purposes of the System and protect any means of access to such information to ensure that such information is not used for any purpose other than to determine the identity and employment eligibility of the individual and to protect the confidentiality of such information, including ensuring that such information is not provided to any person other than a person who carries out the employer’s responsibilities under this subsection. Failure to safeguard such information shall be a violation of subsection (c)(14).

(B)

Confirmation, tentative nonconfirmation, or final nonconfirmation

(i)

Confirmation

If an employer receives a determination through the System under paragraph (3) for an individual, the employer shall retain either an electronic, paper, or microfiche form record of such confirmation for the period required by subsection (b)(4)(A).

(ii)

Tentative nonconfirmation and verification

(I)

Nonconfirmation

If an employer receives a tentative nonconfirmation with respect to an individual, the employer shall retain either an electronic or paper record of such nonconfirmation for the period required by subsection (b)(4)(A) and inform such individual not later than 3 working days after the issuance of such notice in the manner prescribed by the Secretary that includes information regarding the individual’s right to submit information to contest the tentative nonconfirmation and the address and telephone numbers established by the Commissioner and the Secretary to obtain information on how to submit such information. The individual must acknowledge in writing whether or not the individual chooses to contest or not contest the tentative nonconfirmation. The employer shall submit to the System the individual’s action.

(II)

No contest

If the individual does not contest the tentative nonconfirmation notice within 15 working days of receiving notice from the individual’s employer, the notice shall become final and the employer shall retain either an electronic or paper record of such final nonconfirmation for the period required by subsection (b)(4)(A). An individual’s failure to contest a tentative nonconfirmation may not be the basis for determining that the employer acted in a knowing (as defined in section 274a.1 of title 8, Code of Federal Regulations, or any corresponding similar regulation) manner.

(III)

Contest

If the individual contests the tentative nonconfirmation notice under subclause (I), the individual shall submit appropriate information to contest such notice to the Secretary or Commissioner of Social Security within 15 working days of receiving notice from the individual’s employer and shall utilize the verification process developed under paragraph (3)(B).

(IV)

Effective period of tentative nonconfirmation

A tentative nonconfirmation notice shall remain in effect until such notice becomes final under clause (II) or a final confirmation notice or final nonconfirmation notice is issued by the System.

(V)

Prohibition

An employer may not terminate the employment of an individual based on a tentative nonconfirmation notice. Nothing in this clause shall apply to termination of employment for any legitimate reason other than because of such a tentative nonconfirmation.

(iii)

Final nonconfirmation

(I)

If an employer has received a final nonconfirmation with respect to an individual, the employer shall terminate the employment of the individual after the expiration of the time period prescribed in paragraph (21) for the individual to file an administrative appeal of a final nonconfirmation notice, unless the Secretary or the Commissioner stays the final nonconfirmation notice pending the resolution of the administrative appeal, or a stay is issued pending judicial review.

(II)

Continued employment after final nonconfirmation

If the employer continues to employ (or to recruit or refer) an individual after the expiration of the period for the individual to file an administrative appeal of a final nonconfirmation notice under paragraph (21) (unless the Secretary or the Commissioner stayed the final nonconfirmation notice pending the resolution of the administrative appeal or a stay is issued pending judicial review), a rebuttable presumption is created that the employer has violated subsections paragraphs (1)(A) and (2) of subsection (a). Such presumption may not apply to a prosecution under subsection (e)(1).

(14)

Prohibition of unlawful accessing and obtaining of information

(A)

In general

It shall be unlawful for any individual other than an employee of the Social Security Administration or the Department of Homeland Security specifically charged with maintaining the System to intentionally and knowingly—

(i)

access the System or the databases utilized to verify identity or employment eligibility for the System for any purpose other than verifying identity or employment eligibility or modifying the System pursuant to law or regulation; or

(ii)

obtain the information concerning an individual stored in the System or the databases utilized to verify identity or employment eligibility for the System for any purpose other than verifying identity or employment authorization or modifying the System pursuant to law or regulation.

(B)

Penalties

(i)

Unlawful access

Any individual who unlawfully accesses the System or the databases as described in subparagraph (A)(i) shall be fined no more than $1,000 per individual or sentenced to no more than 6 months imprisonment or both per individual whose file was compromised.

(ii)

Unlawful use

Any individual who unlawfully obtains information stored in the System in the database utilized to verify identity or employment eligibility for the System and uses the information to commit identity theft for financial gain or to evade security or to assist another in gaining financially or evading security, shall be fined no more than $10,000 per individual or sentenced to no more than 1 year of imprisonment or both per individual whose information was obtained and misappropriated.

(15)

Protection from liability

No employer that participates in the System and complies in good faith with the attestation in subsection (b)(1) and the employer requirements of this section shall be liable under any law for any employment-related action taken with respect to an individual in good faith reliance on information provided by the System regarding that individual.

(16)

Limitation on use of the system

Notwithstanding any other provision of law, nothing in this subsection shall be construed to permit or allow any department, bureau, or other agency of the United States to utilize any information, database, or other records used in the System for any purpose other than as provided for under this subsection.

(17)

Access to database

No officer or employee of any agency or department of the United States, other than such an officer or employee who is responsible for the verification of employment eligibility or for the evaluation of an employment eligibility verification program at the Social Security Administration, the Department of Homeland Security, and the Department of Labor, may have access to any information, database, or other records utilized by the System.

(18)

Modification authority

The Secretary, after notice is submitted to Congress and provided to the public in the Federal Register, is authorized to modify the requirements of this subsection, including requirements with respect to completion of forms, method of storage, attestations, copying of documents, signatures, methods of transmitting information, and other operational and technical aspects to improve the efficiency, accuracy, and security of the System.

(19)

Annual study and report

(A)

Requirement for study

The Comptroller General of the United States shall conduct an annual study of the System as described in this paragraph.

(B)

Purpose of the study

The Comptroller General shall, for each year, undertake a study to determine whether the System meets the following requirements:

(i)

Demonstrated accuracy of the databases

New information and information changes submitted by an individual to the System is updated in all of the relevant databases not later than 3 working days after submission in at least 99 percent of all cases.

(ii)

Low error rates and delays in verification

(I)

Rates of incorrect final nonconfirmation notices

That, during a year, not more than .5 percent of all final nonconfirmations provided through the System during such year are incorrect.

(II)

Rates of incorrect tentative nonconfirmation notices

(aa)

That, during a year, not more than 1 percent of native-born United States citizens whose identity and work eligibility are submitted to the system is the subject of a tentative nonconfirmation.

(bb)

That, during a year, not more than 3 percent of foreign-born, work authorized individuals whose identity and work eligibility are submitted to the System are the subject of a tentative nonconfirmation.

(iii)

Containment of error rates

That, during a year, the rate of incorrect final and incorrect tentative nonconfirmations shall not have increased by more than 3 percent over the previous year.

(iv)

Measurable employer compliance with system requirements

(I)

No discrimination based on system operations

The System has not resulted in increased employment discrimination on the basis of race or national origin.

(II)

Requirement for independent study

The determination described in subclause (I) shall be based on an independent study commissioned by the Comptroller General in each phase of expansion of the System.

(v)

Protection of workers’ private information

At least 97 percent of employers who participate in the System are in full compliance with the privacy requirements described in this subsection.

(vi)

Effective security

An assessment of the privacy and confidentiality of the system and of the overall security of the system with respect to cybertheft and theft and misuse of private data.

(vii)

Adequate agency staffing and funding

The Secretary and Commissioner of Social Security have sufficient funding to meet all of the deadlines and requirements of this subsection.

(C)

Consultation

In conducting a study under this paragraph, the Comptroller General shall consult with representatives of business, labor, immigrant communities, State governments, privacy advocates, and appropriate departments of the United States.

(D)

Requirement for reports

Not later than 21 months after the date of the enactment of this Act and annually thereafter, the Comptroller General shall submit to the Secretary and to Congress a report containing the findings of the study carried out under this paragraph.

(E)

Certification

If the Comptroller General determines that the System meets the requirements set out in clauses (i) through (vii) of subparagraph (B) for a year, the Comptroller shall certify such determination and submit such certification to Congress with the report required by subparagraph (D).

(20)

Annual audit and report

(A)

Purpose of the Audit and Report

The Office for Civil Rights and Civil Liberties shall conduct annual audits of the system described in section 403(a) of the Illegal Immigration Reform and Responsibility Act of 1996, Public Law 104–208, Div. C, 110 Stat. 3009-546, to assess employer compliance with System requirements, including civil rights and civil liberties protections, and compliance with the System rules and procedures set forth in the Memorandum of Understanding between employers and the Social Security Administration and the Department of Homeland Security.

(B)

Requirements of Audit

Annual audits shall include, but are not limited to, the following activities:

(i)

Use of testers to check if employers are using E-Verify as outlined in the Memorandum of Understanding between employers and the Department of Homeland Security and the Social Security Administration, including if employers are misusing the system to prescreen job applicants, if employers are giving proper notification to employees’ regarding tentative non-confirmations, and if employers are taking adverse actions against workers based upon tentative non-confirmations.

(ii)

Random audits of employers to confirm that employers are using the system as outlined in the Memorandum of Understanding and in a manner consistent with civil rights and civil liberties protections.

(iii)

Periodic audits of employers for which the Special Counsel has received information or complaints and/or actual charges of citizenship/national origin discrimination or document abuse.

(C)

Authority of Office for Civil Rights and Civil Liberties

The Office shall have the authority to obtain from users of the E-Verify program relevant documents and testimony and answers to written interrogatories. The Office shall also have the authority to conduct site visits, and interview employees.

(D)

Failure of employers to cooperate

Employers that fail to cooperate with the Office for Civil Rights and Civil Liberties shall be noted in the annual report set forth below in subsection (E).

(E)

Requirement for reports

Not later than 18 months after the date of enactment of this Act, and annually thereafter, the Office for Civil Rights and Civil Liberties shall submit to the President of the Senate, the Speaker of the House of Representatives, and the appropriate committees and subcommittees of Congress a report containing the findings of the audit carried out under this paragraph.

(21)

Administrative review

(A)

In general

An individual who receives a final nonconfirmation may, not later than 30 days after the date of such notice, file an appeal of such final nonconfirmation. An individual subject to a final nonconfirmation may file an appeal thereof after the 30-day period if the appeal is accompanied by evidence that the individual did not receive timely notice of a tentative or final nonconfirmation, or that there was good cause for the failure to file an appeal within the 30-day period.

(B)

Procedures

(i)

The Secretary and Commissioner of Social Security shall develop procedures to review appeals filed under subparagraph (A) and to make final determinations on such appeals. The review on appeal may include any additional or newly discovered evidence presented by the appellant during the time of the pending appeal or subsequently by motion to reopen.

(ii)

The Secretary or the Commissioner shall stay the final nonconfirmation notice pending the resolution of the administrative appeal unless the Secretary or the Commissioner determines that the administrative appeal is frivolous, unlikely to succeed on the merits, or filed for purposes of delay.

(C)

Review for errors

If a final determination on an appeal filed under subparagraph (A) results in a confirmation of an individual’s eligibility for employment in the United States, the administrative review process shall require the Secretary to determine if the final nonconfirmation issued for the individual was the result of—

(i)

an error or negligence on the part of an employee or official operating or responsible for the System;

(ii)

an error or negligence on the part of an employer or entity acting on behalf of the employer;

(iii)

the decision rules, processes, or procedures utilized by the System; or

(iv)

erroneous system information that was not the result of acts or omissions of the individual.

(D)

Compensation for error

(i)

In general

If the individual was denied a stay under subparagraph (B)(2) and Secretary makes a determination under subparagraph (C) that the final nonconfirmation issued for an individual was not caused by an act or omission of the individual or the employer, the Secretary shall compensate the individual for lost wages and for reasonable costs and attorneys’ fees not exceeding $75,000, subject to annual inflation adjustments per the US Consumer Price Index - All Urban Consumers (CPI-U) compiled by the Bureau of Labor Statistics.

(ii)

Calculation of lost wages

Lost wages shall be calculated based on the wage rate and work schedule that prevailed prior to termination. The individual shall be compensated for wages lost beginning on the first scheduled work day after employment was terminated and ending 180 days after completion of the administrative review process described in this paragraph, or judicial review if any, or the day after the individual is reinstated or obtains employment elsewhere, whichever occurs first. If the individual obtains employment elsewhere at a lower wage rate, the individual shall be compensated for the difference in wages for the period ending 180 days after completion of the administrative review process or judicial review, if any.

(iii)

Limitation on compensation

For purposes of determining an individual’s compensation for the loss of employment, such compensation shall not include any period in which the individual was ineligible for employment in the United States.

(iv)

Source of funds

Compensation or reimbursement provided under this paragraph shall not be provided from funds appropriated in annual appropriations Acts to the Secretary for the Department of Homeland Security.

(E)

Temporary stay of final administrative decision denying appeal

If the appeal is denied, the Secretary shall stay the decision for a period of 15 days to permit the individual to seek judicial review of the decision pursuant to paragraph (21).

(22)

Judicial review

(A)

In general

After the Secretary makes a final determination on an appeal filed by an individual under paragraph (19), the individual may obtain judicial review of such determination in a civil action commenced not later than 90 days after notice of such decision, or such further time as the Secretary may allow.

(B)

Jurisdiction

A civil action for such judicial review shall be brought in the district court of the United States for the judicial district in which the plaintiff resides, or has a principal place of business, or, if the plaintiff does not reside or have a principal place of business within any such judicial district, in the District Court of the United States for the District of Columbia.

(C)

Answer

As part of the Secretary’s answer to a complaint for such judicial review, the Secretary shall file a certified copy of the administrative record compiled during the administrative review under paragraph (21), including the evidence upon which the findings and decision complained of are based. The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming or reversing the result of that administrative review, with or without remanding the cause for a rehearing.

(D)

Compensation for error

(i)

In general

In cases in which the individual was denied a stay under subparagraph (19)(B)(2) and such judicial review reverses the final determination of the Secretary made under paragraph (21), the court shall compensate the individual for lost wages and for reasonable costs and attorneys’ fees not exceeding $75,000, subject to annual inflation adjustments per the US Consumer Price Index - All Urban Consumers (CPI-U) compiled by the Bureau of Labor Statistics.

(ii)

Calculation of lost wages

Lost wages shall be calculated based on the wage rate and work schedule that prevailed prior to termination. The individual shall be compensated for wages lost beginning on the first scheduled work day after employment was terminated and ending 180 days after completion of the judicial review described in this paragraph or the day after the individual is reinstated or obtains employment elsewhere, whichever occurs first. If the individual obtains employment elsewhere at a lower wage rate, the individual shall be compensated for the difference in wages for the period ending 180 days after completion of the administrative and judicial review process.

(23)

Private right of action

If the Secretary makes a determination under paragraph (21) that the final nonconfirmation issued for an individual was caused by an act or negligence on the part of the employer, the individual may seek recovery of damages, reinstatement, back pay, and other appropriate remedies in a civil action against the employer. Such action must be commenced not later than 90 days after notice of the Secretary’s decision. The action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides, or has a principal place of business, or, if the plaintiff does not reside or have a principal place of business within any such judicial district, in the District Court of the United States for the District of Columbia.

(24)

Statutory construction

Nothing in this subsection shall affect any existing rights and obligations of employers or employees under other Federal, State, or local laws.

(25)

Enhanced verification system

The Secretary, in consultation with the Commissioner of Social Security, shall establish a voluntary self-verification system in order to prevent the fraudulent or other misuse of the individual’s Social Security number during employment verification, to prevent employer misuse of the system, to protect privacy, and to limit erroneous nonconfirmation during employment verification. The voluntary system shall allow an individual to verify the individual’s own record, to block and unblock the use of the individual’s Social Security number, and to register a phone number or e-mail address to be contacted upon removal of the block.

(A)

Voluntary enrollment

An individual may enroll in the Enhanced Verification System on a voluntary basis.

(B)

Select Entities Required to Participate in the Enhanced Verification System

(i)

Executive departments

Each Department of the Federal Government shall elect to participate in the Enhanced Verification System and shall comply with the terms and conditions of such an election.

(ii)

Legislative branch

Each Member of Congress, each officer of Congress, and the head of each agency of the legislative branch shall elect to participate in the Enhanced Verification System and shall comply with the terms and conditions of such an election.

(C)

Electronic access

The Secretary shall establish procedures allowing individuals to use a Personal Identification Number (PIN) or other biographic information to authenticate the individual’s identity and to block and unblock the individual’s Social Security number electronically.

(D)

Use of enhanced verification system receipt for purpose of employment verification

(i)

Encrypted code

The Secretary shall establish procedures to allow an individual who has authenticated the individual’s identity and unblocked the individual’s Social Security number to receive a single-use encrypted code which may be presented to the employer instead of the documents described in subsection (b) and for the employer to submit the encrypted single-use code to the system.

(ii)

Confirmation

An employer who submits a valid single-use encrypted code with respect to an individual shall immediately receive a confirmation through the system.

(iii)

Expedited review process

The Secretary shall establish an expedited review process to allow an individual who has authenticated the individual’s identity and unblocked the individual’s Social Security number immediately to correct user or system errors which result in an erroneous non-confirmation of work eligibility.

(E)

Reports

(i)

In general

The Secretary of Homeland Security shall submit to the Committees on the Judiciary of the House of Representatives and of the Senate reports on the Enhanced Verification System within 3 months after the end of the third and fourth years in which the programs are in effect. Such reports shall—

(I)

assess the degree of fraudulent attesting of United States citizenship;

(II)

assess the benefits of the Enhanced Verification System to employers and the degree to which it prevents fraudulent claims of United States citizenship or legal residence and strengthens the enforcement of section 274A;

(III)

assess the benefits of the Enhanced Verification System to individuals and the degree to which they prevent misuse of the System and erroneous non-confirmations during employment verification;

(IV)

assess if the Enhanced Verification System aides in reducing discrimination during the employment verification process;

(V)

assess the degree to which the Enhanced Verification System protects employee civil liberties and privacy; and

(VI)

include recommendations on whether or not Enhanced Verification System should be continued or modified, and

(ii)

Report on expansion

Not later than 6 months after the end of the fourth year in which the programs are in effect, the Secretary of Homeland Security shall submit to the Committees on the Judiciary of the House of Representatives and the Senate a report—

(I)

evaluating whether the problems identified by the report submitted under subsection (i) have been substantially resolved; and

(II)

describing what actions the Secretary of Homeland Security shall take before requiring any individuals to participate in the Enhanced Verification System.

(F)

Limitation on use of the confirmation system and any related systems

Notwithstanding any other provision of law, nothing in this subtitle shall be construed to permit or allow any department, bureau, or other agency of the United States Government to utilize any information, data base, or other records assembled under this subtitle for any other purpose other than as provided for under the Enhanced Verification System.

(d)

Compliance

(1)

Complaints and investigations

The Secretary shall establish procedures—

(A)

for a person to file a complaint regarding a potential violation of paragraph (1)(A), (1)(B), or (2) of subsection (a);

(B)

for the investigation of any such complaint that the Secretary determines is appropriate to investigate; and

(C)

for the investigation of such other violation of paragraph (1)(A), (1)(B), or (2) of subsection (a) that the Secretary determines is appropriate.

(2)

Authority in investigations

(A)

In general

In conducting investigations and hearings under this subsection, officers and employees of the Department of Homeland Security, if designated by the Secretary, may compel by subpoena the attendance of witnesses and the production of evidence at any designated place in an investigation or case under this subsection.

(B)

Failure to cooperate

In case of refusal to obey a subpoena lawfully issued under subparagraph (A), the Secretary may request that the Attorney General apply in an appropriate district court of the United States for an order requiring compliance with such subpoena, and any failure to obey such order may be punished by such court as contempt.

(C)

Department of Labor

The Secretary of Labor shall have the investigative authority provided under section 11(a) of the Fair Labor Standards Act of 1938 (29 U.S.C. 211(a)) to ensure compliance with the provisions of this section, or any regulation or order issued under this section.

(D)

Agency representation and coordination

United States Immigration and Customs Enforcement officials may not misrepresent to employees or employers that they are a member of any agency or organization that provides domestic violence services, enforces health and safety law or other labor laws, provides health care services, or any other services intended to protect life and safety.

(3)

Compliance procedures

(A)

Prepenalty notice

If the Secretary has reasonable cause to believe that there has been a violation of a requirement of this section and determines that further proceedings related to such violation are warranted, the Secretary shall issue to the employer concerned a written notice of the Secretary’s intention to issue a claim for a fine or other penalty. Such notice shall—

(i)

describe the violation;

(ii)

specify the laws and regulations allegedly violated;

(iii)

disclose the material facts which establish the alleged violation; and

(iv)

inform such employer that the employer shall have a reasonable opportunity to make representations as to why a claim for a monetary or other penalty should not be imposed.

(B)

Remission or mitigation of penalties

(i)

Petition by employer

If an employer receives written notice of a fine or other penalty in accordance with subparagraph (A), the employer may file within 45 days from receipt of such notice, with the Secretary a petition for the remission or mitigation of such fine or penalty, or a petition for termination of the proceedings. The petition may include any relevant evidence or proffer of evidence the employer wishes to present, and shall be filed and considered in accordance with procedures to be established by the Secretary.

(ii)

Review by secretary

If the Secretary finds that such fine or other penalty was incurred erroneously, or finds the existence of such mitigating circumstances as to justify the remission or mitigation of such fine or penalty, the Secretary may remit or mitigate such fine or other penalty on the terms and conditions as the Secretary determines are reasonable and just, or order termination of any proceedings related to the notice. Such mitigating circumstances may include good faith compliance and participation in, or agreement to participate in, the System, if not otherwise required.

(iii)

Applicability

This subparagraph may not apply to an employer that has or is engaged in a pattern or practice of violations of paragraph (1)(A), (1)(B), or (2) of subsection (a) or of any other requirements of this section.

(C)

Penalty claim

After considering evidence and representations offered by the employer pursuant to subparagraph (B), the Secretary shall determine whether there was a violation and promptly issue a written final determination setting forth the findings of fact and conclusions of law on which the determination is based and the appropriate penalty.

(4)

Civil penalties

(A)

Hiring or continuing to employ unauthorized aliens

Any employer that violates paragraph (1)(A) or (2) of subsection (a) shall pay civil penalties as follows:

(i)

Pay a civil penalty of not less than $500 and not more than $4,000 for each unauthorized alien with respect to each such violation.

(ii)

If the employer has previously been fined 1 time within the preceding 12 months under this subparagraph, pay a civil penalty of not less than $4,000 and not more than $10,000 for each unauthorized alien with respect to each such violation.

(iii)

If the employer has previously been fined more than 1 time within the preceding 12 months under this subparagraph or has failed to comply with a previously issued and final order related to any such provision, pay a civil penalty of not less than $6,000 and not more than $20,000 for each unauthorized alien with respect to each such violation.

(B)

Recordkeeping or verification practices

Any employer that violates or fails to comply with paragraph (1)(B) of subsection (a) shall pay a civil penalty as follows:

(i)

Pay a civil penalty of not less than $200 and not more than $2,000 for each such violation or failure.

(ii)

If the employer has previously been fined 1 time within the preceding 12 months under this subparagraph, pay a civil penalty of not less than $400 and not more than $4,000 for each such violation of failure.

(iii)

If the employer has previously been fined more than 1 time within the preceding 12 months under this subparagraph or has failed to comply with a previously issued and final order related to such requirements, pay a civil penalty of $6,000 for each such violation or failure.

(iv)

Special rule governing paperwork violation

In the case where an employer commits a violation of this section that is deemed to be purely a paperwork violation where the Secretary fails to establish any intent to hire an individual who is not unauthorized for employment in the United States, the Secretary shall permit the employer to correct such paperwork error within 30 days of receiving notice from the Secretary of such violation.

(C)

Other penalties

Notwithstanding subparagraphs (A) and (B), the Secretary may impose additional penalties for violations, including cease and desist orders, specially designed compliance plans to prevent further violations, suspended fines to take effect in the event of a further violation, and in appropriate cases, the civil penalty described in subsection (e)(2).

(5)

Judicial review

(A)

In general

An employer adversely affected by a final determination may, within 45 days after the date the final determination is issued, obtain judicial review of such determination.

(B)

Report

Not later than 180 days after the date of enactment of the this Act, the Director of the Federal Judicial Center shall submit to Congress a report on judicial review of a final determination. The report shall contain recommendations on jurisdiction and procedures that shall be instituted to seek adequate and timely review of such decision.

(6)

Enforcement of orders

If an employer fails to comply with a final determination issued against that employer under this subsection, and the final determination is not subject to review as provided in paragraph (5), the Attorney General may file suit to enforce compliance with the final determination, not earlier than 46 days and not later than 90 days, after the date the final determination is issued, in any appropriate district court of the United States. The burden shall remain on the employer to show that the final determination was not supported by a preponderance of the evidence.

(7)

Recovery of costs and attorneys’ fees

In any appeal brought under paragraph (5) or suit brought under paragraph (6), the employer shall be entitled to recover from the Secretary reasonable costs and attorneys’ fees if such employer prevails on the merits of the case. The award of attorneys’ fees shall not exceed $75,000. Such amount shall be subject to annual inflation adjustments per the United States Consumer Price Index - All Urban Consumers (CPI-U) compiled by the Bureau of Labor Statistics. Any costs and attorneys’ fees assessed against the Secretary shall be charged against the operating expenses of the Department of Homeland Security for the fiscal year in which the assessment is made, and shall not be reimbursed from any other source.

(8)

Coordination

An investigation under paragraph (1)(C) shall be coordinated with the appropriate regional office of the National Labor Relations Board, the Department of Labor, and all relevant State and local agencies that are charged with enforcing workplace standards. Evidence gathered from such agencies shall be considered in determining whether the entity under investigation has violated subsection (a).

(e)

Criminal penalties and injunctions for pattern or practice violations

(1)

Criminal penalty

An employer that engages in a pattern or practice of knowing violations of paragraph (1)(A) or (2) of subsection (a) shall be fined not more than $20,000 for each unauthorized alien with respect to whom such a violation occurs, imprisoned for not more than 3 years for the entire pattern or practice, or both.

(2)

Enjoining of pattern or practice violations

If the Secretary or the Attorney General has reasonable cause to believe that an employer is engaged in a pattern or practice of employment in violation of paragraph (1)(A) or (2) of subsection (a), the Attorney General may bring a civil action in the appropriate district court of the United States requesting such relief, including a permanent or temporary injunction, restraining order, or other order against the employer, as the Secretary deems necessary.

(f)

Adjustment for inflation

All penalties and limitations on the recovery of costs and attorney’s fees in this section shall be increased every 4 years beginning January 2010 to reflect the percentage increase in the consumer price index for all urban consumers (all items; United States city average) for the 48 month period ending with September of the year preceding the year such adjustment is made. Any adjustment under this subparagraph shall be rounded to the nearest dollar.

(g)

Prohibition of indemnity bonds

(1)

Prohibition

It is unlawful for an employer, in the hiring of an individual, to require the individual to post a bond or security, to pay or agree to pay an amount, or otherwise to provide a financial guaranty or indemnity, against any potential liability arising under this section relating to such hiring of the individual.

(2)

Civil penalty

Any employer which is determined, after notice and opportunity for mitigation of the monetary penalty under subsection (d), to have violated paragraph (1) shall be subject to a civil penalty of $10,000 for each violation and to an administrative order requiring the return of any amounts received in violation of such paragraph to the individual.

(h)

Prohibition on award of government contracts, grants, and agreements

(1)

Employers with no contracts, grants, or agreements

(A)

In general

If an employer who does not hold a Federal contract, grant, or cooperative agreement is determined by the Secretary to be a repeat violator of this section the employer shall be debarred from the receipt of a Federal contract, grant, or cooperative agreement for a period of 5 years. The Secretary or the Attorney General shall advise the Administrator of General Services of such a debarment, and the Administrator of General Services shall list the employer on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs for a period of 5 years.

(B)

Waiver

The Administrator of General Services, in consultation with the Secretary and the Attorney General, may waive operation of this subsection or may limit the duration or scope of the debarment.

(2)

Employers with contracts, grants, or agreements

(A)

In general

An employer who holds a Federal contract, grant, or cooperative agreement and is determined by the Secretary to be a repeat violator of this section or is convicted of a crime under this section, shall be debarred from the receipt of new Federal contracts, grants, or cooperative agreements for a period of 5 years.

(B)

Notice to agencies

Prior to debarring the employer under subparagraph (A), the Secretary, in cooperation with the Administrator of General Services, shall advise any agency or department holding a contract, grant, or cooperative agreement with the employer of the Government’s intention to debar the employer from the receipt of new Federal contracts, grants, or cooperative agreements for a period of 5 years.

(C)

Review

The decision of whether to debar or take alternate action under this paragraph shall be reviewable pursuant to section 9, Federal Acquisition Regulation.

(3)

Suspension

Indictments for violations of this section or adequate evidence of actions that could form the basis for debarment under this subsection shall be considered a cause for suspension under the procedures and standards for suspension prescribed by the Federal Acquisition Regulation.

(4)

Repeat violator defined

In this subsection, the term repeat violator means, with respect to an employer, that the employer has violated paragraph (1)(A), (1)(B), or (2) of subsection (a) more than 1 time and that such violations were discovered as a result of more than 1 separate investigation of the employer. A violation of such paragraph (1)(B) that is inadvertent and unrelated to a violation of subsection (a)(1)(A) and (a)(2) may not be considered to be a violation of such paragraph (1)(B) for the purposes of this paragraph.

(i)

Miscellaneous provisions

(1)

Documentation

In providing documentation or endorsement of authorization of aliens (other than aliens lawfully admitted for permanent residence) eligible to be employed in the United States, the Secretary shall provide that any limitations with respect to the period or type of employment or employer shall be conspicuously stated on the documentation or endorsement.

(2)

Preemption

The provisions of this section preempt any State or local law, contract license, or other standard, requirement, action or instrument from—

(A)

imposing sanctions or liabilities for employing, or recruiting or referring for employment, unauthorized aliens, or for working without employment authorization;

(B)

requiring those hiring, recruiting, or referring individuals for employment to ascertain or verify the individuals’ employment authorization or to participate in an employment authorization verification system, or requiring individuals to demonstrate employment authorization; and

(C)

requiring, authorizing or permitting the use of an employment verification system, unless otherwise mandated by Federal law, for any other purpose including, but without limitation, such purposes as verifying the status of renters, determining eligibility for receipt of benefits, enrollment in school, obtaining or retaining a business license or other license, or conducting a background check.

(j)

Backpay remedies

Neither backpay nor any other monetary remedy for unlawful employment practices, workplace injuries or other causes of action giving rise to liability shall be denied to a present or former employee on account of: the employer’s or the employee’s failure to comply with the requirements of this section in establishing or maintaining the employment relationship; the employee’s violation of the provisions of federal law related to the employment verification system set forth in subsection (a); or the employee’s continuing status as an unauthorized alien both during and after termination of employment.

(k)

Definitions

In this section—

(1)

Employer

The term employer means any person or entity, including any entity of the Government of the United States, hiring an individual for employment in the United States.

(2)

Secretary

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

(3)

Unauthorized alien

The term unauthorized alien means, with respect to the employment of an alien at a particular time, that the alien is not at that time either—

(A)

an alien lawfully admitted for permanent residence; or

(B)

authorized to be so employed by this Act or by the Secretary.

.

(b)

Conforming amendments

(1)

Amendments

(A)

Repeal of E-Verify

Sections 401, 402, 403, 404, and 405 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208; 8 U.S.C. 1324a note) are repealed.

(B)

Repeal of reporting requirements

(i)

Report on earnings of aliens not authorized to work

Subsection (c) of section 290 (8 U.S.C. 1360) is repealed.

(ii)

Report on fraudulent use of social security account numbers

Subsection (b) of section 414 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208; 8 U.S.C. 1360 note) is repealed.

(C)

Repeal of definition

Paragraph (1)(F) of section 1961 of title 18, United States Code, is repealed.

(2)

Construction

Nothing in this subsection or in subsection (c) of section 274A, as amended by subsection (a), may be construed to limit the authority of the Secretary to allow or continue to allow the participation of employers who participated in the E-Verify program under such sections 401, 402, 403, 404, and 405 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208; 8 U.S.C. 1324a note) in the Electronic Employment Verification System established pursuant to such subsection (d).

(c)

Technical amendments

(1)

Definition of unauthorized alien

Sections 218(i)(1) (8 U.S.C. 1188(i)(1)), 245(c)(8) (8 U.S.C. 1255(c)(8)), 274(a)(3)(B)(i) (8 U.S.C. 1324(a)(3)(B)(i)), and 274B(a)(1) (8 U.S.C. 1324b(a)(1)) are amended by striking 274A(h)(3) and inserting 274A(h).

(2)

Document requirements

Section 274B (8 U.S.C. 1324b) is amended—

(A)

in subsections (a)(6) and (g)(2)(B), by striking 274A(b) and inserting 274A(d); and

(B)

in subsection (g)(2)(B)(ii), by striking 274A(b)(5) and inserting 274A(d)(9).

(d)

Employment verification advisory panel

(1)

In general

Not later than 180 days after the date of enactment of this Act, the Secretary shall establish an Employment Verification Advisory Panel (hereinafter in the subsection referred to as the Advisory Panel).

(2)

Membership

The Advisory Panel should consist of members appointed by the Secretary, after consulting with the Commissioner of Social Security, the Director of National Institutes of Standards and Technology, and other appropriate Federal agencies. Such members should include representatives from appropriate Federal agencies and private sector representatives of affected industries and groups, including immigration policy, human resource, employer and employee organizations, experts in fields including database security, employment verification, biometrics, and privacy.

(3)

Functions

(A)

Advice on implementation and deployment

The Advisory Panel shall advise the Secretary and the Commissioner of Social Security on the implementation and deployment of the verification systems established under the amendments made by this section, including—

(i)

the best means of promoting efficiency, compliance responsiveness, accuracy, public education, user support, interoperability, and cost-effectiveness of the systems established under this section;

(ii)

the best practices and procedures in order to protect the privacy and identities of individuals enrolled in the systems established under this section;

(iii)

standards of database accuracy, error rates, privacy, and measurable compliance with system rules that must be met before implementation begins and before each additional phase of implementation; and

(iv)

the best means by which data obtained through such systems may be used to timely improve the accuracy of databases maintained by the Secretary and the Commissioner of Social Security.

(B)

Study and report on identity fraud and alternatives for strengthening identity authentication

(i)

Study

The Advisory Panel shall evaluate the vulnerability of the System to identity fraud and the degree to which individuals not authorized for employment in the United States are able to be confirmed by the System.

(ii)

Report

Not later than 180 days after its establishment, the Advisory Panel shall issue a report to the Secretary on alternatives for strengthening identity authentication and preventing fraudulent confirmations by the System. The report shall—

(I)

survey available technologies for identity authentication, including but not limited to biometric and biographical identity assurance systems;

(II)

analyze alternatives to identity assurance technologies, including the enhanced verification system described in subsection (c)(25) of section 274A of the Immigration and Nationality Act, as amended by this section;

(III)

analyze the technical feasibility of adding new identity authentication requirements to the System described in subsection (c) of such section, including by considering:

(IV)

process burdens (at the point of collection, information processing, etc.);

(V)

performance burdens (anticipated system throughputs, scalability, reconfigurability, etc);

(VI)

accuracy and realistic failure rates and projected increases in erroneous nonconfirmations of work authorized individuals;

(VII)

projected compliance and non-compliance rates,

(VIII)

data Security, data storage requirements, and added risk to individuals’ privacy;

(IX)

estimate the costs and benefits of different strategies for strengthening identity authentication and evaluate their overall strengths and weaknesses, including but not limited to requirements that employers collect biometric, biographical, or other data from new employees instead of or in addition to the data identified in subsections (b) and (c) of such section and requirements that individuals participate in the enhanced verification system described in subsection (c)(25) of such section.

(4)

Termination

The Advisory Panel shall terminate 5 years after the date of the enactment of this Act.

(e)

Effective date

The amendments made by subsections (a), (b), and (c) shall take effect on the date that is 180 days after the date of the enactment of this Act.

202.

Parity with Civil Rights Act of 1964

(a)

Prohibition of employment discrimination

Section 274B(a) (8 U.S.C. 1324b(a)) is amended—

(1)

by amending paragraph (1) to read as follows:

(1)

In general

It is an unfair immigration-related employment practice for a person or other entity to discriminate against any individual (other than an unauthorized alien defined in section 274A(h)(3)) with respect to—

(A)

the hiring, or recruitment or referral for a fee, of the individual for employment, the verification of the individual’s eligibility for employment, or the discharging of the individual from employment—

(i)

because of such individual’s national origin; or

(ii)

because of such individual’s citizenship status;

(B)

the compensation, terms, or conditions of the employment of the individual.

;

(2)

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

(A)

a person or other entity that employs three or fewer employees, except for an employment agency, meaning any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person.

;

(3)

by repealing section 274(a)(3) (8 U.S.C. 1324(a)(3));

(4)

in paragraph (6), by striking if made for the purpose or with the intent of discriminating against an individual in violation of paragraph (1) and inserting in violation of paragraph (1). Additional information and compliance assistance will be provided to employers to assist them in complying with the law;

(5)

by inserting a new paragraph (7) as follows:

(7)

Antidiscrimination requirements of the electronic employment verification system

It is an unfair immigration-related employment practice for a person or other entity, in the course of the Electronic Employment Verification System described in section 274A(c)—

(A)

to terminate the employment of an individual or take any adverse employment action due to a tentative nonconfirmation issued by such System, with respect to that individual;

(B)

to use the System for screening of an applicant for employment prior to making the individual an offer of employment;

(C)

to use the System for the reverification of an employee after the employee has satisfied the process described in (b)(1), unless otherwise required by Federal law.

(D)

to use the System selectively to exclude certain individuals from consideration for employment as a result of a perceived likelihood that additional verification will be required, beyond what is required for most job applicants; or

(E)

to use the System to deny workers’ employment benefits or otherwise interfere with their labor rights, or to engage in any other unlawful employment practice.

;

(6)

by inserting a new paragraph (8) as follows:

(8)

Burden of proof in disparate impact cases

(A)

An unlawful immigration-related employment practice or unfair labor practice case based on disparate impact is established under this general rule only if—

(i)

a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of national origin or citizenship status and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity; or

(ii)

the complaining party makes the demonstration with respect to an alternative employment practice and the respondent refuses to adopt such an alternative employment practice. An alternative employment practice is defined as a policy that would satisfy the employer’s legitimate interests without having a disparate impact on a protected class.

(B)

With respect to demonstrating that a particular employment practice causes a disparate impact as described in subparagraph (8)(A), the complaining party shall demonstrate that each particular challenged employment practice causes a disparate impact, except that if the complaining party can demonstrate to the court that the elements of a respondent’s decision-making process are not capable of separation for analysis, the decisionmaking process may be analyzed as one employment practice.

(C)

If the respondent demonstrates that a specific employment practice does not cause the disparate impact, the respondent shall not be required to demonstrate that such practice is required by business necessity.

(D)

A demonstration that an employment practice is required by business necessity may not be used as a defense against a claim of intentional discrimination under this statute.

; and

(7)

by inserting a new paragraph (9) as follows:

(9)

Except as otherwise provided in this subchapter, an unlawful immigration-related unfair employment practice is established when the charging party demonstrates that citizenship status or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.

(b)

Charges and complaints

Section 274B(d) (8 U.S.C. 1324b(d)) is amended—

(1)

in paragraph (1), by striking within 120 days of the date of the receipt of the charge and subject to paragraph (3);

(2)

by striking The Special Counsel’s failure to file such a complaint within such 120-day period shall not affect the right of the Special Counsel to investigate the charge or to bring a complaint before an administrative law judge during such 90-day period. and inserting at the end of paragraph (2) Nothing contained in this Act shall relieve any Government agency or official of his or her responsibility for unlawful electronic employment verification practices.;

(3)

by striking paragraph (3).

(c)

Increase in civil money penalties

Section 274B(g)(2)(B)(iv) (8 U.S.C. 1324b(g)(2)(B)(iv)) is amended—

(1)

in subclause (I), by striking $250 and not more than $1,000 and inserting $2,000 and not more than $4,000;

(2)

in subclause (II), by striking $2,000 and not more than $5,000 and inserting $4,000 and not more than $10,000;

(3)

in subclause (III), by striking $3,000 and not more than $10,000 and inserting $6,000 and not more than $20,000;

(4)

in subclause (IV), by striking $100 and not more than $1,000 and inserting $500 and not more than $5,000.

(d)

Orders finding violations

Section 274B(g) (8 U.S.C. 1324b(g)) is amended—

(1)

in paragraph (2)(B)(iii), by inserting , and to provide such other relief as the administrative law judge determines appropriate to make the individual whole before the semicolon at the end; and

(2)

by inserting the following at the end of paragraph (2)(B)(viii):

(ix)
(I)

No order of the court shall require the admission or reinstatement of an individual as a member of a union, or the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was refused admission, suspended, or expelled, or was refused employment or advancement or was suspended or discharged for any reason other than discrimination on account of citizenship status or national origin or in violation of this section.

(II)

On a claim in which an individual proves a violation under subsection (a)(7) and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court may grant declaratory relief, injunctive relief (except as provided in clause (b)), and attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a claim under subsection (a)(7); and shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph (I).

;

(3)

by inserting at the end of paragraph (2) a new subparagraph (E) as follows:

(E)

Compensatory and punitive damages

(i)

Determination of punitive damages

A complaining party may acquire punitive damages against a respondent (other than the federal government or a federal government agency) if the complaining party demonstrates that the respondent engaged in discriminatory practice or practices with malice or reckless indifference to the federally protected rights of an aggrieved individual under subsection (a)(1).

(ii)

Compensatory damages awarded under this section

Compensatory damages awarded under this section shall not include backpay, interest on backpay, or any other type of relief authorized under subparagraphs (B) and (C) of subsection (g)(2).

(iii)

Limitations

The sum of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses on account of national origin discrimination shall not exceed $50,000 for each complaining party. In the case of citizenship status discrimination, the limitations should be as follows:

(I)

In the case of a respondent who has more than 3 and fewer than 101 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $50,000.

(II)

In the case of a respondent who has more than 100 and fewer than 201 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $100,000.

(III)

In the case of a respondent who has more than 200 and fewer than 501 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $200,000.

(IV)

In the case of a respondent who has more than 500 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $300,000.

.

(e)

Dissemination of information

Section 274B is amended—

(1)

in subparagraph (l)(3), by striking $10,000,000 and inserting $50,000,000.

(2)

by adding at the end the following:

(m)

Reports

The Secretary of Homeland Security shall make transactional data and citizenship status data available upon request by the Special Counsel (appointed under subsection (c) of this section).

.

(f)

Effective date

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

203.

Amendments to the Social Security Act

(a)

Social security act

Section 205(c)(2) of the Social Security Act (42 U.S.C. 405(c)(2)) is amended by adding at the end the following new subparagraphs:

(I)
(i)

The Commissioner of Social Security shall, subject to the provisions of title III of the this Act, establish a reliable, secure method to provide through the employment verfication systems established pursuant to section 274A of the Immigration and Nationality Act (referred to in this subparagraph as the System), within the time periods required by such section—

(I)

a determination of whether the name, date of birth, employer identification number, and social security account number of an individual provided in an inquiry made to the System by an employer is consistent with such information maintained by the Commissioner in order to confirm the validity of the information provided;

(II)

a determination of the citizenship status associated with such name and social security account number, according to the records maintained by the Commissioner;

(III)

a determination of whether the name and number belongs to an individual who is deceased, according to the records maintained by the Commissioner;

(IV)

a determination of whether the name and number is blocked in accordance with clause (ii); and

(V)

a confirmation or a nonconfirmation described in such subsection (c), in a manner that ensures that other information maintained by the Commissioner is not disclosed or released to employers through the System.

(ii)

The Commissioner of Social Security shall prevent the fraudulent or other misuse of a social security account number by establishing procedures under which an individual who has been assigned a social security account number may block the use of such number under the System and remove such block.

(J)

In assigning social security account numbers to aliens who are authorized to work in the United States under section 218A of the Immigration and Nationality Act, the Commissioner of Social Security shall, to the maximum extent practicable, assign such numbers by employing the enumeration procedure administered jointly by the Commissioner, the Secretary of State, and the Secretary.

.

(b)

Authorization of appropriations

(1)

In general

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

(2)

Limitation on verification responsibilities of commissioner of social security

The Commissioner of Social Security is authorized to perform activities with respect to carrying out the Commissioner’s responsibilities in this title or the amendments made by this title, but only to the extent the Secretary has provided, in advance, funds to cover the Commissioner’s full costs in carrying out such responsibilities. In no case shall funds from the Federal Old-Age and Survivors Insurance Trust Fund or the Federal Disability Insurance Trust Fund be used to carry out such responsibilities.

(c)

Effective date

The amendments made by this section shall take effect on the date that is 180 days after the date of the enactment of this Act.

III

Visa Reforms

301.

Elimination of existing backlogs

(a)

Worldwide level of family-Sponsored immigrants

Section 201(c) of the Immigration and Nationality Act (8 U.S.C. 1151(c)) is amended to read as follows:

(c)

Worldwide level of family-Sponsored immigrants

(1)

In general

Subject to subparagraph (B), the worldwide level of family-sponsored immigrants under this subsection for a fiscal year is equal to the sum of—

(A)

480,000; and

(B)

the sum of—

(i)

the number computed under paragraph (2); and

(ii)

the number computed under paragraph (3).

(2)

Unused visa numbers from previous fiscal year

The number computed under this paragraph for a fiscal year is the difference, if any, between—

(A)

the worldwide level of family-sponsored immigrant visas established for the previous fiscal year; and

(B)

the number of visas issued under section 203(a), subject to this subsection, during the previous fiscal year.

(3)

Unused visa numbers from fiscal years 1992 through 2009

The number computed under this paragraph is the difference, if any, between—

(A)

the difference, if any, between—

(i)

the sum of the worldwide levels of family-sponsored immigrant visas established for each of fiscal years 1992 through 2008; and

(ii)

the number of visas issued under section 203(a), subject to this subsection, during such fiscal years; and

(B)

the number of unused visas from fiscal years 1992 through 2008 that were issued after fiscal year 2007 under section 203(a), subject to this subsection.

.

(b)

Worldwide Level of Employment-Based Immigrants

Section 201(d) of the Immigration and Nationality Act (8 U.S.C. 1151(d)) is amended to read as follows:

(d)

Worldwide Level of Employment-Based Immigrants

(1)

In general

The worldwide level of employment-based immigrants under this subsection for a fiscal year is equal to the sum of—

(A)

290,000;

(B)

the number computed under paragraph (2); and

(C)

the number computed under paragraph (3).

(2)

Unused visa numbers from previous fiscal year

The number computed under this paragraph for a fiscal year is the difference, if any, between—

(A)

the worldwide level established under paragraph (1) for the previous fiscal year; and

(B)

the number of visas actually issued under section 203(b), subject to this subsection, during the previous fiscal year.

(3)

Unused visa numbers from fiscal years 1992 through 2009

The number computed under this paragraph is the difference, if any, between—

(A)

the difference, if any, between—

(i)

the sum of the worldwide levels established under paragraph (1) for fiscal years 1992 through 2009; and

(ii)

the number of visas actually issued under section 203(b), subject to this subsection, during such fiscal years; and

(B)

the number of visas actually issued after fiscal year 2009 pursuant to an immigrant visa number issued under section 203(b), subject to this subsection, during fiscal years 1992 through 2009.

.

(c)

Exception to nondiscrimination

Section 202(a)(1)(A) (8 U.S.C. 1152(a)(1)(A)) is amended by striking 201(b)(2)(A)(i) and inserting 201(b).

(d)

Effective date

The amendments made by this section shall take effect on the date which is 60 days after the date of the enactment of this Act.

302.

Reclassification of spouses and minor children of legal permanent residents as immediate relatives

(a)

In general

Section 201(b)(2) of the Immigration and Nationality Act (8 U.S.C. 1151(b)(2)) is amended to read as follows:

(2)

Immediate relative

(A)

In general

(i)

Immediate relative defined

In this subparagraph, the term immediate relative means a child, spouse, or parent of a citizen of the United States or a child or spouse of a lawful permanent resident (and for each family member of a citizen or lawful permanent resident under this subparagraph, such individual’s spouse or child who is accompanying or following to join the individual), except that, in the case of parents, such citizens shall be at least 21 years of age.

(ii)

Previously issued visa

Aliens admitted under section 211(a) on the basis of a prior issuance of a visa under section 203(a) to their accompanying parent who is an immediate relative.

(iii)

Parents and children

An alien who was the child or the parent of a citizen of the United States or a child of a lawful permanent resident at the time of the citizen’s or resident’s death if the alien files a petition under section 204(a)(1)(A)(ii) within 2 years after such date or prior to reaching 21 years of age.

(iv)

Spouse

In the case of an alien who was the spouse of a citizen of the United States or spouse of a lawful permanent resident and was not legally separated from the citizen or resident at the time of the citizen’s or resident’s death, the alien (and each child of the alien) shall be considered for purposes of this subsection, to remain an immediate relative after the date of the citizen’s or resident’s death if the spouse files a petition under section 204(a)(1)(A)(ii) before the earlier of—

(I)

2 years after such date; or

(II)

the date on which the spouse remarries.

(v)

Special rule

For purposes of this subparagraph, an alien who has filed a petition under clause (iii) or (iv) of section 204(a)(1)(A) remains an immediate relative if the United States citizen or lawful permanent resident spouse or parent loses United States citizenship or residence on account of the abuse.

(B)

Birth during temporary visit abroad

Aliens born to an alien lawfully admitted for permanent residence during a temporary visit abroad.

.

(b)

Allocation of immigrant visas

Section 203(a) of the Immigration and Nationality Act (8 U.S.C. 1153(a)) is amended—

(1)

in paragraph (1), by striking 23,400 and inserting 38,000;

(2)

by striking paragraph (2) and inserting the following:

(2)

Unmarried sons and unmarried daughters of permanent resident aliens

Qualified immigrants who are the unmarried sons or unmarried daughters (but are not the children) of an alien lawfully admitted for permanent residence shall be allocated visas in a number not to exceed 60,000, plus any visas not required for the class specified in paragraph (1).

;

(3)

in paragraph (3), by striking 23,400 and inserting 38,000; and

(4)

in paragraph (4), by striking 65,000 and inserting 90,000.

(c)

Technical and conforming amendments

(1)

Rules for determining whether certain aliens are immediate relatives

Section 201(f) of the Immigration and Nationality Act (8 U.S.C. 1151(f)) is amended—

(A)

in paragraph (1), by striking paragraphs (2) and (3), and inserting paragraph (2),;

(B)

by striking paragraph (2);

(C)

by redesignating paragraphs (3) and (4) as paragraphs (2) and (3), respectively; and

(D)

in paragraph (3), as redesignated by subparagraph (C), by striking through (3) and inserting and (2).

(2)

Numerical limitation to any single foreign state

Section 202 of the Immigration and Nationality Act (8 U.S.C. 1152) is amended—

(A)

in subsection (a)(4)—

(i)

by striking subparagraphs (A) and (B);

(ii)

by redesignating subparagraphs (C) and (D) as subparagraphs (A) and (B), respectively; and

(iii)

in subparagraph (A), as redesignated by clause (ii) of this paragraph, by striking section 203(a)(2)(B) and inserting section 203(a)(2); and

(B)

in subsection (e), in the flush matter following paragraph (3), by striking , or as limiting the number of visas that may be issued under section 203(a)(2)(A) pursuant to subsection (a)(4)(A).

(3)

Allocation of immigration visas

Section 203(h) of the Immigration and Nationality Act (8 U.S.C. 1153(h)) is amended—

(A)

in paragraph (1)—

(i)

in the matter preceding subparagraph (A), by striking subsections (a)(2)(A) and (d) and inserting subsection (d);

(ii)

in subparagraph (A), by striking becomes available for such alien (or, in the case of subsection (d), the date on which an immigrant visa number became available for the alien’s parent), and inserting became available for the alien’s parent,; and

(iii)

in subparagraph (B), by striking applicable;

(B)

by amending paragraph (2) to read as follows:

(2)

Petitions described

The petition described in this paragraph is a petition filed under section 204 for classification of the alien’s parent under subsection (a), (b), or (c) of this section.

; and

(C)

in paragraph (3), by striking subsections (a)(2)(A) and (d) and inserting subsection (d).

(4)

Procedure for granting immigrant status

Section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) is amended—

(A)

in subsection (a)(1)—

(i)

in subparagraph (A)—

(I)

in clause (i), by inserting or lawful permanent resident after citizen;

(II)

in clause (ii), by striking described in the second sentence of section 201(b)(2)(A)(i) also and inserting , alien child, or alien parent described in section 201(b)(2)(A);

(III)

in clause (iii)—

(aa)

in subclause (I)(aa), by inserting or legal permanent resident after citizen; and

(bb)

in subclause (II)(aa)—

(AA)

in subitems (AA) and (BB), by inserting or legal permanent resident; after citizen each place that term appears;

(BB)

in subitem (CC), by inserting or legal permanent resident after citizen each place that term appears; and

(CC)

in subitem (CC)(bbb), by inserting or legal permanent resident after citizenship;

(IV)

in clause (iv), by inserting or legal permanent resident after citizen each place that term appears;

(V)

in clause (v)(I), by inserting or legal permanent resident after citizen; and

(VI)

in clause (vi)—

(aa)

by inserting or legal permanent resident status after renunciation of citizenship; and

(bb)

by inserting or legal permanent resident after abuser’s citizenship;

(ii)

by striking subparagraph (B);

(iii)

in subparagraph (C), by striking subparagraph (A)(iii), (A)(iv), (B)(ii), or (B)(iii) and inserting clause (iii) or (iv) of subparagraph (A); and

(iv)

in subparagraph (J), by striking or clause (ii) or (iii) of subparagraph (B);

(B)

in subsection (a), by striking paragraph (2);

(C)

in subsection (c)(1), by striking or preference status; and

(D)

in subsection (h), by striking or a petition filed under subsection (a)(1)(B)(ii).

303.

Country limits

Section 202(a) of the Immigration and Nationality Act (8 U.S.C. 1152(a)) is amended—

(1)

in paragraph (2)—

(A)

by striking , (4), and (5) and inserting and (4);

(B)

by striking subsections (a) and (b) of section 203 and inserting section 203(a);

(C)

by striking 7 percent (in the case of a single foreign state) or 2 percent and inserting 10 percent (in the case of a single foreign state) or 5 percent; and

(D)

by striking such subsections and inserting such section; and

(2)

by striking paragraph (5).

304.

Promoting family unity

(a)

Waivers of inadmissibility

Section 212(a)(9) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(9)) is amended—

(1)

in subparagraph (B)—

(A)

in clause (iii)—

(i)

in subclause (I), by striking 18 years of age and inserting 21 years of age;

(ii)

by moving subclause (V) 4 ems to the right; and

(iii)

by adding at the end the following:

(VI)

Clause (i) shall not apply to an alien for whom an immigrant visa is available or was available on or before the date of the enactment of the CIR ASAP Act of 2009, and is otherwise admissible to the United States for permanent residence; and

;

(B)

in clause (v)—

(i)

by striking spouse or son or daughter and inserting spouse, son, daughter, or parent;

(ii)

by striking extreme;

(iii)

by inserting , son, daughter, after lawfully resident spouse; and

(iv)

by striking alien. and inserting alien or, if the Attorney General determines that a waiver is necessary for humanitarian purposes, to ensure family unity or is otherwise in the public interest.; and

(2)

in subparagraph (C), by amending clause (ii) to read as follows:

(ii)

Exceptions

Clause (i) shall not apply to an alien—

(I)

seeking admission more than 10 years after the date of the alien’s last departure from the United States if, prior to the alien’s reembarkation at a place outside the United States or attempt to be readmitted from a foreign contiguous territory, the Secretary of Homeland Security has consented to the alien’s reapplication for admission; or

(II)

for whom an immigrant visa is available or was available on or before the date of the enactment of this Act, and is otherwise admissible to the United States for permanent residence.

.

(b)

False claims and misrepresentations

The Immigration and Nationality Act (8 U.S.C. 1101, et seq.) is amended—

(1)

in section 237(a)(3)(D) (8 U.S.C. 1227(a)(3)(D)), by inserting and willfully after falsely each place such term appears;

(2)

in section 212(a)(6)(C)(ii) (8 U.S.C. 1182(a)(6)(C)(ii)), by inserting and willfully after falsely each place such term appears;

(3)

in section 212(a)(6)(C)(iii) (8 U.S.C. 1182(a)(6)(C)(iii)), by striking of clause (i); and

(4)

by amending section 212(i)(1) (8 U.S.C. 1182(i)(1)) to read as follows:

(1)

The Attorney General or the Secretary of Homeland Security may, in the discretion of the Attorney General or the Secretary, waive the application of subsection (a)(6)(C) in the case of an immigrant who is the parent, spouse, son, or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, or an alien granted classification under clause (iii) or (iv) of section 204(a)(1)(A), if it is established to the satisfaction of the Attorney General or the Secretary that the admission to the United States of such alien would not be contrary to the national welfare, safety, or security of the United States.

.

305.

Surviving relatives

(a)

Continued Waiver Eligibility for Widows, Widowers and Orphans

Section 212(a)(2)(F) is amended to read as follows:

(F)

Continued Waiver Eligibility for Widows, Widowers and Orphans

In the case of an alien who would have been statutorily eligible for a waiver of inadmissibility under the Immigration and Nationality Act but for the death of the qualifying relative, the alien may be considered for any waiver under the Immigration and Nationality Act notwithstanding the death of the qualifying relative upon a showing of hardship to the alien or a family member, or that the granting of the waiver is in the public interest.

.

(b)

Naturalization of surviving relatives

Section 319(a) of the Immigration and Nationality Act (8 U.S.C. 1430(a)) is amended by inserting (or, if the spouse is deceased, the spouse was a citizen of the United States) after citizen of the United States.

(c)

Protection for the surviving relatives of refugees and asylees

An alien described in section 204(l)(2)(D) of the Immigration and Nationality Act may have such petition described in paragraph (2) of section 204(l) or an application for adjustment of status to that of a person admitted for lawful permanent residence based upon the family relationship described in such paragraph, and any related applications, adjudicated notwithstanding the death of the qualifying relative, regardless of whether the alien is present inside or outside the United States at the time of the qualifying relative’s death or after the qualifying relative’s death.

306.

Extension of waiver authority

Section 217(c)(8)(A)(iii) of the Immigration and Nationality Act (8 U.S.C. 1187(c)(8)(A)(iii)) is amended—

(1)

by striking June 30, 2009 and inserting June 30, 2011; and

(2)

by striking July 1, 2009 and inserting July 1, 2011.

307.

Discretionary waiver for long-term lawful permanent residents

Section 240A(a) is amended by inserting after paragraph (3) the following:

The Attorney General may waive the application of subparagraph (C) to an individual only if the individual’s conviction resulted in a sentence served of two years or less and the Attorney General determines in his or her sole discretion that the individual does not pose a danger to the community or a national security threat and that subparagraph (C) should be waived for compelling reasons such as to preserve family unity or because removal is otherwise not in the public interest.

.

308.

Continuous presence

Section 240A(d) of the Immigration and Nationality Act (8 U.S.C. 1229b(d)) is amended by striking paragraph (1).

309.

Bar on the removal of certain refugees, parolees or asylees

(a)

In general

Chapter 4 of title II of the Immigration and Nationality Act is amended by inserting after section 237 the following new section:

237A.

Bar on removal of certain refugees, parolees or asylees

No individual who fled their homeland for fear of persecution while under the age of 12 years and was later admitted to the United States as a refugee or parolee or was granted asylum in the United States shall be removed from the United States.

.

(b)

Technical and conforming amendment

The table of sections for the Immigration and Nationality Act is amended by inserting after the item relating to section 237 the following new item:

Sec. 237A. Bar on removal of certain refugees, parolees or asylees.

.

310.

Exemption from immigrant visa limit for certain veterans who are natives of Philippines

Section 201(b)(1) of the Immigration and Nationality Act (8 U.S.C. 1151(b)(1)) is amended by adding at the end the following:

(F)

Aliens who are eligible for an immigrant visa under paragraph (1) or (3) of section 203(a) and who have a parent who was naturalized pursuant to section 405 of the Immigration Act of 1990 (8 U.S.C. 1440 note).

.

311.

Fiancée or fiancé child status protection

(a)

Definition

Section 101(a)(15)(K)(iii) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(K)(iii)) is amended by inserting before the semicolon at the end the following:if a determination of the age of such minor child is made using the age of the alien on the date on which the petition is filed with the Secretary of Homeland Security to classify the alien’s parent as the fiancée or fiancé of a United States citizen (in the case of an alien parent described in clause (i)) or as the spouse of a United States citizen under section 201(b)(2)(A)(i) (in the case of an alien parent described in clause (ii)).

(b)

Adjustment of status authorized

Section 214(d) of the Immigration and Nationality Act (8 U.S.C. 1184(d)) is amended—

(1)

by redesignating paragraphs (2) and (3) as paragraphs (3) and (4), respectively;

(2)

in paragraph (1), by striking the last sentence; and

(3)

by inserting after paragraph (1) the following:

(2)
(A)

If an alien does not marry the petitioner under paragraph (1) within 3 months after the alien and the alien’s minor children are admitted into the United States, such alien and children shall be required to depart from the United States. If such aliens fail to depart from the United States, they shall be removed in accordance with sections 240 and 241.

(B)

Subject to subparagraphs (C) and (D), if an alien marries the petitioner described in section 101(a)(15)(K)(i) within 3 months after the alien is admitted into the United States, the Secretary of Homeland Security or the Attorney General, subject to the provisions of section 245(d), may adjust the status of the alien, and any minor children accompanying or following to join the alien, to that of an alien lawfully admitted for permanent residence on a conditional basis under section 216 if the alien and any such minor children apply for such adjustment and are not determined to be inadmissible to the United States.

(C)

Paragraphs (5) and (7)(A) of section 212(a) shall not apply to an alien who is eligible to apply for adjustment of his or her status to an alien lawfully admitted for permanent residence under this section.

(D)

An alien eligible for a waiver of inadmissibility as otherwise authorized under this Act shall be permitted to apply for adjustment of his or her status to that of an alien lawfully admitted for permanent residence under this section.

.

(c)

Age determination

Section 245(d) of the Immigration and Nationality Act (8 U.S.C. 1155(d)) is amended—

(1)

by striking (d) The Attorney General inserting the following:

(d)
(1)

The Attorney General

; and

(2)

by adding at the end the following:

(2)

A determination of the age of an alien admitted to the United States under section 101(a)(15)(K)(iii) shall be made, for purposes of adjustment to the status of an alien lawfully admitted for permanent residence on a conditional basis under section 216, using the age of the alien on the date on which the petition is filed with the Secretary of Homeland Security to classify the alien’s parent as the fiancée or fiancé of a United States citizen (in the case of an alien parent admitted to the United States under section 101(a)(15)(K)(i)) or as the spouse of a United States citizen under section 201(b)(2)(A)(i) (in the case of an alien parent admitted to the United States under section 101(a)(15)(K)(ii)).

.

(d)

Effective date

(1)

In general

The amendments made by this section shall be effective as if included in the Immigration Marriage Fraud Amendments of 1986 (Public Law 99–639).

(2)

Applicability

The amendments made by this section shall apply to all petitions or applications described in such amendments that—

(A)

are pending as of the date of the enactment of this Act; or

(B)

have been denied, but would have been approved if such amendments had been in effect at the time of adjudication of the petition or application.

(3)

Motion to reopen or reconsider

A motion to reopen or reconsider a petition or application described in paragraph (2)(B) shall be granted if such motion is filed with the Secretary of Homeland Security or the Attorney General not later than 2 years after the date of the enactment of this Act and the Secretary shall use parole authority to permit an alien outside the United States to pursue a petition or application that has been reopened.

312.

Equal treatment for all stepchildren

Section 101(b)(1)(B) of the Immigration and Nationality Act (8 U.S.C. 1101(b)(1)(B)) is amended by striking , provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred.

313.

Sons and daughters of Filipino World War II veterans

Section 201(b)(1) (8 U.S.C. 1151(b)(1)), as amended by section 310 of this Act, is further amended by adding at the end the following:

(G)

Aliens who are eligible for a visa under paragraph (1) or (3) of section 203(a) and are the son or daughter of a citizen of the United States who was naturalized pursuant to section 405 of the Immigration Act of 1990 (8 U.S.C. 1440 note).

.

314.

Determinations under the Haitian Refugee Immigration Fairness Act of 1998

(a)

In general

Section 902(d) of the Haitian Refugee Immigration Fairness Act of 1998 (8 U.S.C. 1255 note) is amended by adding at the end the following:

(3)

Determinations with respect to children

(A)

Use of Application filing date

Determinations made under this subsection as to whether an individual is a child of a parent shall be made using the age and status of the individual on October 21, 1998.

(B)

Application submission by parent

Notwithstanding paragraph (1)(C), an application under this subsection filed based on status as a child may be filed for the benefit of such child by a parent or guardian of the child, if the child is physically present in the United States on such filing date.

.

(b)

New Applications and motions To reopen

(1)

New Applications

Notwithstanding section 902(a)(1)(A) of the Haitian Refugee Immigration Fairness Act of 1998, an alien who is eligible for adjustment of status under such Act may submit an application for adjustment of status under such Act not later than the later of—

(A)

2 years after the date of the enactment of this Act; or

(B)

1 year after the date on which final regulations are promulgated to implement this section and the amendment made by subsection (a).

(2)

Motions to reopen

The Secretary shall establish procedures for the reopening and reconsideration of applications for adjustment of status under the Haitian Refugee Immigration Fairness Act of 1998 that are affected by the amendment made by subsection (a).

(3)

Relationship of Application to certain orders

Section 902(a)(3) of the Haitian Refugee Immigration Fairness Act of 1998 shall apply to an alien present in the United States who has been ordered excluded, deported, removed, or ordered to depart voluntarily, and who files an application under paragraph (1) or a motion under paragraph (2), in the same manner as such section 902(a)(3) applied to aliens filing applications for adjustment of status under such Act prior to April 1, 2000.

(c)

Inadmissibility determination

Section 902 of the Haitian Refugee Immigration Fairness Act of 1998 (8 U.S.C. 1255 note) is amended—

(1)

in subsection (a)(1)(B), by inserting (6)(C)(i), after (6)(A),; and

(2)

in subsection (d)(1)(D), by inserting (6)(C)(i), after (6)(A),.

315.

Discretionary authority

Section 240(c)(4) of the Immigration and Nationality Act (8 U.S.C. 1229a(c)(4)) is amended by adding at the end the following:

(D)

Discretion of judge in case of citizen child

In the case of an alien subject to removal, deportation, or exclusion who is the parent of a child who is a citizen of the United States, the immigration judge may exercise discretion to decline to order the alien removed, deported, or excluded from the United States if the judge determines that such removal, deportation, or exclusion is clearly against the best interests of the child, except that this subparagraph shall not apply to any alien who the judge determines—

(i)

is described in section 212(a)(3) or 237(a)(4); or

(ii)

has engaged in conduct described in paragraph (8) or (9) of section 103 of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7102).

.

316.

Affidavit of support

Section 213A of the Immigration and Nationality Act (8 U.S.C. 1183a) is amended—

(1)

in subsection (a)(1)(A) by striking 125 and inserting 100;

(2)

in subsection (f)(1)(E), by striking 125 and inserting 100;

(3)

in subsection (f)(4)(B)(i), by striking 125 and inserting 100; and

(4)

in subsection (f)(5)(A), by striking 125 and inserting 100.

317.

Visa to prevent unauthorized migration

(a)

Worldwide level of transitional visas

Section 201 of the Immigration and Nationality Act (8 U.S.C. 1152) is amended by adding at the end the following:

(g)

Worldwide level of pum immigrants

The worldwide level of PUM immigrants is equal to 100,000 for each fiscal year the PUM visa is authorized.

.

(b)

Transition to safe and legal immigration

Section 203 of the Immigration and Nationality Act is amended by adding at the end the following:

(i)

Prevent Unauthorized Migration (PUM) Transitional visa

(1)

In general

Except as provided in paragraph (2), aliens subject to the worldwide level specified in section 201(g) for PUM immigrants shall be allotted visas during the first three fiscal years following 6 months after enactment of the CIR ASAP Act of 2009 as follows:

(A)

Determination of admission states

The Secretary shall determine for the most recent previous 5-fiscal year period for which data are available—

(i)

each country (in this paragraph referred to as a transitional visa admission state) whose nationals represented not less than 5 percent of the total number of unauthorized immigrants to the United States during the 5-fiscal year period; and

(ii)

the percentage of unauthorized immigrants that nationals of each transitional visa admission state represented of the total number of unauthorized immigrants to all transitional visa admission states during the 5-year period.

(B)

Distribution of visas

(i)

For a transitional visa admission state

Subject to clause (ii), the percentage of immigrant visas made available under this paragraph to nationals of any single transitional visa admission state shall not exceed the percentage determined for that transitional visa admission state in subparagraph (A)(ii).

(ii)

Redistribution of unused visa numbers

If the Secretary of State estimates that the number of immigrant visas to be issued to nationals in any state for a fiscal year under this paragraph is less than the number of immigrant visas made available to such nationals under this paragraph for the fiscal year, the excess visa numbers shall be made available to nationals of the other states in proportion to the percentages otherwise specified in subparagraph (A)(ii).

(2)

Eligibility

An alien is not eligible for a visa under this subsection unless the alien—

(A)

at the time of application for such a visa, is not present in the United States and is not entitled to an immigrant status under any other provision of the Immigration and Nationality Act;

(B)

has no other employment-based or family-based visa application pending;

(C)

submits to a security and law enforcement background check, according to procedures established by the Secretary; and

(D)

with regard to education, has completed less than a 4-year college degree program.

(3)

Requirement with regard to participation in data collection and study

Transitional visa holders shall be required to participate in data collection and study as described in section 501(b)(1)(G) of this Act that the Labor Commission deems necessary or helpful to fulfill its purpose and mission.

(4)

Maintenance of information

The Secretary of State shall maintain information on the age, occupation, education level, and other relevant characteristics of immigrants issued visas under this subsection and share such information to the Labor Commission in Title V of this Act as needed.

(5)

Order of consideration

Immigrant visas made available each fiscal year under this subsection shall be issued to eligible qualified immigrants in a random order established by the Secretary of State.

.

318.

Adjustment of status

(a)

Conditional Permanent Resident Status

(1)

In general

(A)

Conditional basis for status

Notwithstanding any other provision of law, an alien whose status has been adjusted under subsection (b) to that of an alien lawfully admitted for permanent residence shall be considered to have obtained such status on a conditional basis subject to the provisions of this paragraph. Such conditional permanent resident status shall be valid for a period of 3 years, subject to termination under paragraph (2).

(B)

Notice of requirements

At the time an alien obtains permanent resident status on a conditional basis under subsection (b), the Secretary of Homeland Security shall provide notice to the alien regarding the provisions of this section and the requirements of paragraph (3) to have the conditional basis of such status removed.

(2)

Termination of status

(A)

In general

The Secretary shall terminate the conditional permanent resident status of any alien who obtained such status under this Act, if the Secretary determines that the alien ceases to meet the requirements of subsection (b)(1).

(B)

Return to country of origin

Any alien whose conditional permanent resident status is terminated under subparagraph (A) shall be required to return to their country of origin.

(3)

Requirements of timely petition for removal of condition

(A)

In general

In order for the conditional basis of the permanent resident status obtained by an alien under subsection (b) to be removed, the alien must file with the Secretary of Homeland Security, in accordance with paragraph (4), a petition which requests the removal of such conditional basis and which provides, under penalty of perjury, the facts and information so that the Secretary may make the determination described in subparagraph (B)(i).

(B)

Adjudication of petition to remove condition

(i)

In general

If a petition is filed in accordance with clause (A) for an alien, the Secretary shall make a determination as to whether the alien meets the requirements set out in subparagraphs (A) and (B) of paragraph (4).

(ii)

Removal of conditional basis if favorable determination

If the Secretary determines that the alien meets such requirements, the Secretary shall notify the alien of such determination and immediately remove the conditional basis of the status of the alien.

(iii)

Termination of conditional status if unfavorable determination

If the Secretary determines that the alien does not meet such requirements, the Secretary shall notify the alien of such determination and terminate conditional permanent resident status of the alien as of the date of the determination.

(C)

Time to file petition

An alien may petition to remove the conditional basis of lawful resident status during the period beginning 90 days before and ending 180 days after either the date that is 3 years after the date of granting conditional permanent resident status or any other expiration date of the conditional permanent resident status provided by the Secretary in accordance with this Act. The alien shall be deemed in conditional permanent resident status in the United States during the period in which the petition is pending.

(4)

Details of petition

(A)

Contents of petition

Each petition for an alien under paragraph (3)(A) shall contain information to permit the Secretary to determine whether each of the following requirements is met:

(i)

The alien has demonstrated good moral character during the entire period the alien has been a conditional permanent resident.

(ii)

The alien is in compliance with subsection (b)(1).

(iii)

The alien has not abandoned the alien’s residence in the United States. The Secretary shall presume that the alien has abandoned such residence if the alien is absent from the United States for more than 365 days, in the aggregate, during the period of conditional residence, unless the alien demonstrates that the alien has not abandoned the alien’s residence. An alien who is absent from the United States due to active service in the uniformed services has not abandoned the alien’s residence in the United States during the period of such service.

(iv)

The alien has satisfied all Federal income tax liabilities and is in good standing with the Internal Revenue Service as described in (B) of this paragraph.

(v)

where applicable, can establish proof of registration under the Military Selective Service Act (50 U.S.C. App. 451 et seq.).

(B)

Payment of Income Taxes

(i)

In general

Not later than the date on which status is adjusted under this section, a conditional nonimmigrant or conditional nonimmigrant dependent shall satisfy any applicable Federal tax liability by establishing that—

(I)

no such tax liability exists;

(II)

all outstanding liabilities have been paid; or

(III)

the conditional nonimmigrant has entered into, and is in compliance with, an agreement for payment of all outstanding liabilities with the Internal Revenue Service.

(ii)

Applicable federal tax liability

For purposes of (i), the term applicable Federal tax liability means liability for Federal taxes, including penalties and interest, owed for any year while classified as a conditional permanent resident for which the statutory period for assessment of any deficiency for such taxes has not expired.

(iii)

IRS cooperation

The Secretary of the Treasury shall establish rules and procedures under which the Commissioner of Internal Revenue shall provide documentation to—

(I)

a conditional permanent resident, upon request, to establish the payment of all taxes required under this subsection; or

(II)

the Secretary, upon request, regarding the payment of Federal taxes by an alien applying for a benefit under this section.

(iv)

Compliance

The alien may satisfy proof of compliance with this subsection by submitting documentation that establishes that—

(I)

no such tax liability exists;

(II)

all outstanding liabilities have been met; or

(III)

the alien has entered into, and is in compliance with, an agreement for payment of all outstanding liabilities with the Internal Revenue Service.

(b)

Adjustment of status

(1)

Adjustment of status

Notwithstanding any other provision of law, and except as otherwise provided in this Act, the Secretary of Homeland Security may adjust the status of an alien granted a PUM visa, subject to the conditional basis described in subsection (a), if the alien demonstrates that the alien is not inadmissible under paragraph (2) (criminal grounds), (3) (security grounds), 4(A) and (B) (public charge), 6(E) (smugglers), or 10(C) (child abductors) of section 212(a) of the Immigration and Nationality Act (8 U.S.C. 1182(a)),

(2)

Mandatory fee

Aliens granted a waiver of inadmissibility from 212(a) not listed in (1) shall pay a $500 fee that shall be deposited into the Security and Prosperity Account as described in section 502 of the Comprehensive Immigration Reform ASAP Act of 2009.

(3)

Aliens not subject to direct numerical limitations

Section 201(b)(1) (8 U.S.C. 1151(b)(1)), as amended by sections 310, 313, and 317(a) of this Act, is further amended by adding at the end the following:

(I)

Aliens whose status is adjusted under section 203(i).

.

319.

Rulemaking

The Secretary shall promulgate regulations regarding the timely filing and processing of applications for visas awarded under section 203(i) of the Immigration and Nationality Act, as added by section 317(b) of this Act.

320.

United States-educated immigrants

(a)

Exemption from numerical limitations

(1)

In general

Section 201(b)(1) (8 U.S.C. 1151(b)(1)), as amended by sections 310, 313, 317(a), and 318(b)(3) of this Act, is further amended by adding at the end the following:

(J)

Aliens who have earned a master’s or higher degree from an accredited university in the United States.

(K)

Aliens who have been awarded medical specialty certification based on postdoctoral training and experience in the United States preceding their application for an immigrant visa under section 203(b).

(L)

Aliens who will perform labor in shortage occupations designated by the Secretary of Labor for blanket certification under section 212(a)(5)(A) as lacking sufficient United States workers able, willing, qualified, and available for such occupations and for which the employment of aliens will not adversely affect the terms and conditions of similarly employed United States workers.

(M)

Aliens who have earned a master’s degree or higher in science, technology, engineering, or mathematics and have been working in a related field in the United States in a nonimmigrant status during the 3-year period preceding their application for an immigrant visa under section 203(b).

(N)

Aliens described in subparagraph (A) or (B) of section 203(b)(1) or who have received a national interest waiver under section 203(b)(2)(B).

(O)

The spouse and minor children of an alien described in subparagraph (J), (K), (L), (M), or (N).

.

(2)

Applicability

The amendment made by paragraph (1) shall apply to any visa application—

(A)

pending on the date of the enactment of this Act; or

(B)

filed on or after such date of enactment.

(b)

Labor certifications

Section 212(a)(5)(A)(ii) (8 U.S.C. 1182(a)(5)(A)(ii)) is amended—

(1)

in subclause (I), by striking , or and inserting a semicolon;

(2)

in subclause (II), by striking the period at the end and inserting ; or; and

(3)

by adding at the end the following:

(III)

is a member of the professions and has a master’s degree or higher from an accredited university in the United States or has been awarded medical specialty certification based on postdoctoral training and experience in the United States.

.

(c)

Attestation by health care workers

(1)

Requirement for attestation

Section 212(a)(5) (8 U.S.C. 1182(a)(5)) is amended by adding at the end the following:

(E)

Health care workers with other obligations

(i)

In general

An alien who seeks to enter the United States for the purpose of performing labor as a physician or other health care worker is inadmissible unless the alien submits to the Secretary of Homeland Security or the Secretary of State, as appropriate, an attestation that the alien is not seeking to enter the United States for such purpose during any period in which the alien has an outstanding obligation to the government of the alien’s country of origin or the alien’s country of residence.

(ii)

Obligation defined

In this subparagraph, the term obligation means an obligation incurred as part of a valid, voluntary individual agreement in which the alien received financial assistance to defray the costs of education or training to qualify as a physician or other health care worker in consideration for a commitment to work as a physician or other health care worker in the alien’s country of origin or the alien’s country of residence.

(iii)

Waiver

The Secretary of Homeland Security may waive a finding of inadmissibility under clause (i) if the Secretary determines that—

(I)

the obligation was incurred by coercion or other improper means;

(II)

the alien and the government of the country to which the alien has an outstanding obligation have reached a valid, voluntary agreement, pursuant to which the alien’s obligation has been deemed satisfied, or the alien has shown to the satisfaction of the Secretary that the alien has been unable to reach such an agreement because of coercion or other improper means; or

(III)

the obligation should not be enforced due to other extraordinary circumstances, including undue hardship that would be suffered by the alien in the absence of a waiver.

.

(2)

Effective date and application

(A)

Effective date

The amendment made by paragraph (1) shall become effective 180 days after the date of the enactment of this Act.

(B)

Application by the secretary

The Secretary shall begin to carry out section 212(a)(5)(E) of the Immigration and Nationality Act, as added by paragraph (1), not later than the effective date described in subparagraph (A), including the requirement for the attestation and the granting of a waiver described in such section, regardless of whether regulations to implement such section have been promulgated.

321.

Retaining workers subject to green card backlog

(a)

Adjustment of status

Section 245 (8 U.S.C. 1255), as amended by this title, is further amended by adding at the end the following:

(n)

Adjustment of status for employment-based immigrants

(1)

Eligibility

The Secretary of Homeland Security shall promulgate regulations to provide for the filing of an application for adjustment of status by an alien (and any eligible dependents of such alien), regardless of whether an immigrant visa is immediately available at the time the application is filed, if the alien—

(A)

has an approved petition under subparagraph (E) or (F) of section 204(a)(1); or

(B)

at the discretion of the Secretary, has a pending petition under subparagraph (E) or (F) of section 204(a)(1).

(2)

Visa availability

An application filed pursuant to paragraph (1) may not be approved until an immigrant visa becomes available.

(3)

Fees

If an application is filed pursuant to paragraph (1), the beneficiary of such application shall pay a supplemental fee of $500. Such fee may not be charged to any dependent accompanying or following to join such beneficiary.

(4)

Extension of employment authorization and advanced parole document

(A)

In general

The Secretary of Homeland Security shall provide employment authorization and advanced parole documents, in 3-year increments, to beneficiaries of an application for adjustment of status based on a petition that is filed or, at the discretion of the Secretary, pending, under subparagraph (E) or (F) of section 204(a)(1).

(B)

Fee adjustments

Application fees under this subsection may be adjusted in accordance with the 3-year period of validity assigned to the employment authorization or advanced parole documents under subparagraph (A).

.

(b)

Use of fees

Section 286 (8 U.S.C. 1356) is amended—

(1)

in subsection (m)—

(A)

by striking (m) Notwithstanding any other provisions of law, and inserting the following:

(m)

Immigration examinations fee account

(1)

In general

Notwithstanding any other provision of law, all fees collected under section 245(o)(3) and

;

(B)

by striking : Provided, however, That all and inserting the following:

(2)

Virgin islands; Guam

All

; and

(C)

by striking : Provided further, That fees and inserting the following:

(3)

Cost recovery

Fees

;

(2)

in subsection (n)—

(A)

by striking (n) All deposits and inserting the following:

(4)

Use of funds

(A)

In general

Except as provided under subparagraph (B), all deposits

; and

(B)

adding at the end the following:

(B)

Supplemental fee for adjustment of status of employment-based immigrants

Any amounts deposited into the Immigration Examinations Fee Account that were collected under section 245(o)(3) shall remain available until expended by the Secretary of Homeland Security for backlog reduction and clearing security background check delays.

;

(3)

in subsection (o), by striking (o) The Attorney General and inserting the following:

(5)

Annual financial report to congress

The Attorney General

; and

(4)

in subsection (p), by striking (p) The provisions set forth in subsections (m), (n), and (o) of this section and inserting the following:

(6)

Applicability

The provisions set forth in this subsection shall

.

322.

Return of talent program

(a)

Short title

This section may be cited as the Return of Talent Act.

(b)

Establishment

(1)

In general

Title III (8 U.S.C. 1401 et seq.) is amended by inserting after section 317 the following:

317A.

Temporary absence of persons participating in the return of talent program

(a)

In general

The Secretary of Homeland Security, in consultation with the Secretary of State, shall establish the Return of Talent Program to permit eligible aliens to temporarily return to the alien’s country of citizenship in order to make a material contribution to that country if the country is engaged in postconflict or natural disaster reconstruction activities, for a period not longer than 2 years, unless an exception is granted under subsection (d).

(b)

Eligible alien

An alien is eligible to participate in the Return of Talent Program established under subsection (a) if the alien meets the special immigrant description under section 101(a)(27)(N).

(c)

Family members

The spouse, parents, siblings, and any minor children of an alien who participates in the Return of Talent Program established under subsection (a) may return to such alien’s country of citizenship with the alien and reenter the United States with the alien.

(d)

Extension of time

The Secretary of Homeland Security may extend the 2-year period referred to in subsection (a) upon a showing that circumstances warrant that an extension is necessary for postconflict or natural disaster reconstruction efforts.

(e)

Residency requirements

An immigrant described in section 101(a)(27)(N) who participates in the Return of Talent Program established under subsection (a), and the spouse, parents, siblings, and any minor children who accompany such immigrant to that immigrant’s country of citizenship, shall be considered, during such period of participation in the program—

(1)

for purposes of section 316(a), physically present and residing in the United States for purposes of naturalization within the meaning of that section; and

(2)

for purposes of section 316(b), to meet the continuous residency requirements in that section.

(f)

Oversight and enforcement

The Secretary of Homeland Security, in consultation with the Secretary of State, shall oversee and enforce the requirements of this section.

.

(2)

Table of contents

The table of contents (8 U.S.C. 1101 et seq.) is amended by inserting after the item relating to section 317 the following:

317A. Temporary absence of persons participating in the Return of Talent Program”.

(c)

Eligible immigrants

Section 101(a)(27) (8 U.S.C. 1101(a)(27)) is amended by adding at the end the following:

(N)

an immigrant who—

(i)

has been lawfully admitted to the United States for permanent residence;

(ii)

demonstrates an ability and willingness to make a material contribution to the postconflict or natural disaster reconstruction in the alien’s country of citizenship; and

(iii)

as determined by the Secretary of State in consultation with the Secretary of Homeland Security—

(I)

is a citizen of a country in which Armed Forces of the United States are engaged, or have engaged in the 10 years preceding such determination, in combat or peacekeeping operations;

(II)

is a citizen of a country where authorization for United Nations peacekeeping operations was initiated by the United Nations Security Council during the 10 years preceding such determination; or

(III)

is a citizen of a country which received, during the preceding 2 years, funding from the Office of Foreign Disaster Assistance of the United States Agency for International Development in response to a declared disaster in such country by the United States Ambassador, the Chief of the U.S. Mission, or the appropriate Assistant Secretary of State, that is beyond the ability of such country’s response capacity and warrants a response by the United States Government.

.

(d)

Report to Congress

Not later than 2 years after the date of the enactment of this Act, the Secretary, in consultation with the Secretary of State, shall submit a report to Congress that describes—

(1)

the countries of citizenship of the participants in the Return of Talent Program established under section 317A of the Immigration and Nationality Act, as added by subsection (b);

(2)

the postconflict or natural disaster reconstruction efforts that benefitted, or were made possible, through participation in the program; and

(3)

any other information that the Secretary determines to be appropriate.

(e)

Regulations

Not later than 6 months after the date of the enactment of this Act, the Secretary shall promulgate regulations to carry out this section and the amendments made by this section.

(f)

Authorization of appropriations

There are authorized to be appropriated to United States Citizenship and Immigration Services such sums as may be necessary to carry out this section and the amendments made by this section.

IV

Earned Legalization of Undocumented Individuals

A

Conditional Nonimmigrants

401.

Conditional nonimmigrants

(a)

In general

(1)

Required registration

An alien as described in this section shall register with the Department of Homeland Security by submitting biometric identification pursuant to subsection (b) and filing an application with the Secretary that demonstrates the alien’s compliance with the requirements listed in subsections (b) through (e).

(2)

Classification

Notwithstanding any other provision of law, including section 244(h) of the Immigration and Nationality Act (8 U.S.C. 1254a(h)), the Secretary shall classify an alien as a conditional nonimmigrant or conditional nonimmigrant dependent if the alien registers pursuant to paragraph (1) and is determined to meet the requirements listed in this section.

(b)

Compliance with security and law enforcement background checks

Registration and classification as a conditional nonimmigrant or conditional nonimmigrant dependent under this section is contingent upon the submission of all required biometric data in accordance with procedures established by the Secretary.

(c)

Physical presence

(1)

Presence in the United States

The alien shall establish that the alien—

(A)

was present in the United States on the date of the introduction of this Act in the United States House of Representatives;

(B)

has been continuously present in the United States since the date described in subparagraph (A); and

(C)

was not legally present in the United States on the date of the introduction of this Act in the United States House of Representatives under any classification described in section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)) or has been in violation of status on or before such date.

(2)

Continuous presence

For purposes of this subsection, an absence from the United States without authorization for a continuous period of more than 180 days between the date of the enactment of this Act and the beginning of the application period for classification as a conditional nonimmigrant or conditional nonimmigrant dependent shall constitute a break in continuous physical presence. Individuals absent under advance parole shall not be considered as failing to meet the continuous physical presence requirement.

(d)

Otherwise admissible to the United States

(1)

In general

An alien shall be eligible for classification as a conditional nonimmigrant or conditional nonimmigrant dependent if the Secretary determines that the alien—

(A)

is not inadmissible to the United States under section 212(a) of the Immigration and Nationality Act (8 U.S.C. 1182(a)), except as provided in paragraph (2);

(B)

has not ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion; and

(C)

is not an alien—

(i)

who has been convicted by final judgment of a particularly serious crime and constitutes a danger to the community of the United States;

(ii)

for whom there are reasonable grounds for believing that the alien has committed a particularly serious crime outside the United States before arriving in the United States; or

(iii)

for whom there are reasonable grounds for regarding the alien as a danger to the security of the United States; and

(iv)

who has been convicted of a felony or 3 or more misdemeanors for which the alien has served not less than 12 months of imprisonment in the aggregate.

(2)

Grounds of inadmissibility

In determining an alien’s admissibility under paragraph (1)(A)—

(A)

paragraphs (5), (6), (7), (9), and (10)(B) of section 212(a) of such Act shall not apply;

(B)

the Secretary may not waive—

(i)

subparagraph (A), (B), (C), (D)(ii), (E), (G), (H), or (I) of section 212(a)(2) of such Act (relating to criminals);

(ii)

section 212(a)(3) of such Act (relating to security and related grounds); or

(iii)

subparagraph (A), (C), or (D) of section 212(a)(10) of such Act (relating to polygamists and child abductors);

(C)

the Secretary may waive the application of any provision of section 212(a) of such Act not listed in subparagraph (B) on behalf of an individual alien for humanitarian purposes, to ensure family unity, or if such waiver is otherwise in the public interest; and

(D)

nothing in this paragraph shall be construed as affecting the authority of the Secretary other than under this paragraph to waive the provisions of section 212(a) of such Act.

(3)

Applicability of other provisions

Sections 240B(d) and 241(a)(5) of the Immigration and Nationality Act (8 U.S.C. 1229c(d) and 1231(a)(5)) shall not apply to an alien who is applying for classification under this section for conduct that occurred before the date of enactment of this Act.

(e)

Contributions to the United States through employment, education, military service or other commitment to the community

(1)

In general

The Secretary shall not accept the registration of an alien, or classify an alien as a conditional nonimmigrant or conditional nonimmigrant dependent unless the alien attests, under penalty of perjury, that he or she is contributing to the United States through one or more of the following enterprises—

(A)

the alien is employed full-time, part-time, or seasonally in the United States, is self-employed, or is actively seeking employment; or

(B)

is enrolled full- or part-time in an accredited secondary or post-secondary school, university, or other institution of higher education, or an accredited vocational, technical, or other training program; or

(C)

is a member of the active or reserve Armed Services, the National Guard, or other government sponsored civil service program; or

(D)

otherwise establishes, to the satisfaction of the Secretary, that the alien is an active volunteer or community member.

(2)

Exemptions

The requirements in paragraph (1) shall not apply to any individual who, at the time of registration—

(A)

is 65 years of age or older, has a physical or mental disability, is pregnant, is the primary caregiver to a child under the age of 16 or to an elderly or disabled person, or is on official extended medical leave; or

(B)

is the spouse of a United States citizen or lawful permanent resident;

(C)

is a child 21 years of age or younger of a United States citizen or lawful permanent resident; or

(D)

has been physically present in the United States for a continuous period of not less than 5 years immediately preceding the date of enactment of this Act, and had not yet reached the age of 16 years at the time of initial entry and had not yet reached the age of 35 years on the date of the enactment of this Act.

(3)

Definitions

In this subtitle:

(A)

Institution of higher education

The term institution of higher education has the meaning given that term in section 101 of the Higher Education Act of 1965 (20 U.S.C. 1001).

(B)

Uniformed services

The term uniformed services has the meaning given that term in section 101(a) of title 10, United States Code.

(f)

Special rule for spouses and children

Notwithstanding any other provision of law, the Secretary shall classify the spouse or child of a conditional nonimmigrant as a conditional nonimmigrant dependent, or provide the spouse or child with a conditional nonimmigrant dependent visa if—

(1)

the spouse or child is not otherwise inadmissible to the United States as described in subsection (d);

(2)

in the case of a child, was 21 years of age or younger on the date of enactment of this Act; or

(3)

in the case of a spouse, was married to the conditional nonimmigrant on or before the date of enactment and is married at the time of the application;

(4)

except that the spouse or child of an alien who was subsequently classified as a conditional nonimmigrant under this Act may apply for classification as a conditional nonimmigrant if the spousal or parental relationship has terminated and—

(A)

the termination of the relationship with such spouse or parent was connected to domestic violence; and

(B)

the spouse or child has been battered or subjected to extreme cruelty by the spouse or parent who is a conditional nonimmigrant.

(g)

Application procedures, fee and penalty

(1)

Application procedures

For purposes of establishing enrollment in this program, an application shall be considered complete if it includes appropriate biometric data, applicable fees, penalties through fines, and answers fully and completely all questions attesting to eligibility as described in subsections (a) through (f). The Secretary may require evidence upon initial submission of the application sufficient to establish prima facie eligibility for conditional nonimmigrant or conditional nonimmigrant dependent status. The Secretary may, at his or her discretion, require additional evidence or an interview to make a final determination that an alien has established eligibility for classification.

(2)

Application fee and penalty

(A)

Application fee

The Secretary shall impose a fee for filing an application under this section. Such fee shall be sufficient to cover the administrative and other expenses incurred in connection with the review of such applications.

(B)

Penalty

(i)

In general

Except as provided under clause (ii), an alien filing an application under this section shall submit to the Secretary, in addition to the fee required under subparagraph (A), a fine of $500.

(ii)

Exception

An alien who is classified as a conditional nonimmigrant who qualifies for classification based on the exemption in subsection (e)(2)(D) or a conditional nonimmigrant dependent because he or she was younger than 21 years of age on the date of enactment of this Act shall not be required to pay a fine under this paragraph.

(C)

Disposition of fees and fines

(i)

Fees

Fees collected under this paragraph shall be deposited into the Immigration Examination Fee Account and remain available as provided under subsections (m) and (n) of section 286 of the Immigration and Nationality Act (8 U.S.C. 1356).

(ii)

Fines

Fines collected under this paragraph shall be deposited into the Security and Prosperity Account established under section 286(w) of such Act.

(h)

Treatment of applicants

(1)

In general

An alien who files an application under this section to become a conditional nonimmigrant or a conditional nonimmigrant dependent shall be considered enrolled in the program pursuant to subsection (a)(2) until such time as a final determination is made on the application for classification. Following submission of biometric data pursuant to subsection (b) and successful clearance of the Secretary’s security and criminal background checks, a registered alien—

(A)

shall be granted employment authorization pending final adjudication of the alien’s application;

(B)

shall be granted permission to travel abroad;

(C)

may not be detained for immigration purposes, determined inadmissible or deportable, or removed pending final adjudication of the alien’s application, unless the alien, due to subsequent conduct or criminal conviction, becomes ineligible for conditional nonimmigrant classification; and

(D)

may not be considered an unauthorized alien (as defined in section 274A(h)(3) of the Immigration and Nationality Act (8 U.S.C. 1324a(h)(3))) until employment authorization under subparagraph (A) is denied.

(2)

Document of authorization

The Secretary shall provide each alien described in paragraph (1) with a counterfeit-resistant document of authorization that—

(A)

meets all current requirements established by the Secretary for travel documents, including the requirements under section 403 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note); and

(B)

reflects the benefits and status set forth in paragraph (1).

(3)

Before application period

If an alien is apprehended between the date of the enactment of this Act and the date on which the alien files an application under this section, and the alien can establish prima facie eligibility as a conditional nonimmigrant or a conditional nonimmigrant dependent, the alien shall not be detained and the Secretary shall provide the alien with a reasonable opportunity to file an application under this section.

(4)

During certain proceedings

Notwithstanding any provision of the Immigration and Nationality Act, if an immigration judge determines that an alien who is in removal proceedings has made a prima facie case of eligibility for classification as a conditional nonimmigrant or a conditional nonimmigrant dependent, the judge shall administratively close such proceedings and permit the alien a reasonable opportunity to apply for such classification.

(5)

Relationships of application to certain orders

(A)

In general

An alien who is present in the United States and has been ordered excluded, deported, removed, or ordered to depart voluntarily from the United States under any provision of the Immigration and Nationality Act—

(i)

notwithstanding such order, may apply for classification as a conditional nonimmigrant or conditional nonimmigrant dependent under this subtitle;

(ii)

shall not be required to file a separate motion to reopen, reconsider, or vacate the exclusion, deportation, removal, or voluntary departure order; and

(iii)

the filing of an application for conditional nonimmigrant or conditional nonimmigrant dependent status shall stay the removal of the alien pending final adjudication of the application, unless the removal or detainment of the alien is based on criminal or national security-related grounds that would render the alien ineligible under this section.

(B)

Application granted

If the Secretary grants the application described in subparagraph (A)(i), the Secretary shall cancel the order described in subparagraph (A).

(C)

Application denied

If the Secretary renders a final administrative decision to deny the application described in subparagraph (A)(i), the order described in subparagraph (A) shall be effective and enforceable to the same extent as if the application had not been made.

(i)

Classification

(1)

Benefits and Documentation

If the Secretary determines that an alien is eligible for classification as a conditional nonimmigrant or conditional nonimmigrant dependent, the alien shall be entitled to all benefits described in subsection (h)(1). The Secretary may authorize the use of a document described in subsection (h)(2) as evidence of such classification or may issue additional documentation as evidence of classification as a conditional nonimmigrant or conditional nonimmigrant dependent.

(2)

Period of authorized stay

(A)

In general

Except as provided under subparagraph (C), the period of authorized stay for a conditional nonimmigrant or a conditional nonimmigrant dependent shall be 6 years from the date on which such status is conferred.

(B)

Extension

The Secretary may extend the period described in subparagraph (A) in additional 5-year increments provided that the alien continues to meet the requirements of this section.

(j)

Termination of benefits

(1)

In general

Any benefit provided to an alien seeking classification as a conditional nonimmigrant or conditional nonimmigrant dependent, or who is classified as such, under this section shall terminate if—

(A)

the Secretary determines that the alien is ineligible for such classification and all review procedures under section 603 have been exhausted or waived by the alien;

(B)

the alien has used documentation issued under this section for unlawful or fraudulent purposes; or

(C)

in the case of the spouse or child of an alien applying for classification as a conditional nonimmigrant or classified as a conditional nonimmigrant under this section, the benefits for the principal alien are terminated unless benefits are terminated due to the death of the principal applicant; provided that the spouse or child shall be given a reasonable opportunity to apply independently for classification under this section.

(k)

Dissemination of information on conditional nonimmigrant program

During the 12-month period immediately following the issuance of regulations implementing this section, the Secretary, in cooperation with entities approved by the Secretary, shall broadly disseminate information respecting conditional nonimmigrant or conditional nonimmigrant dependent classification under this section and the requirements to be satisfied to obtain such classification. The Secretary shall disseminate information to employers and labor unions to advise them of the rights and protections available to them and to workers who file applications under this section. Such information shall be broadly disseminated, in the principal languages, as determined by the Secretary, spoken by aliens who would qualify for classification under this section, including to television, radio, and print media to which such aliens would have access.

(l)

Construction clause

Nothing in this subsection shall be construed to prevent an alien described in this section from filing an application for an immigration benefit in accordance with any other provision of law.

402.

Adjustment of status for conditional nonimmigrants

(a)

Requirements

(1)

In general

Notwithstanding any other provision of law, including section 244(h) of the Immigration and Nationality Act (8 U.S.C. 1254a(h)), the Secretary may adjust the status of a conditional nonimmigrant or a conditional nonimmigrant dependent to that of an alien lawfully admitted for permanent residence if the conditional nonimmigrant or conditional nonimmigrant dependent satisfies the applicable requirements under this subsection.

(2)

Fulfillment of conditional requirements

A conditional nonimmigrant applying for adjustment of status under this section shall establish that during the 5-year period immediately preceding the application for adjustment of status, he or she has fulfilled the requirements of the alien’s conditional status by demonstrating that the alien—

(A)

has not been convicted of any offenses that would render the alien inadmissible as described in subsection (b);

(B)

has satisfied all past or current Federal income tax liabilities and is in good standing with the Internal Revenue Service as described in subsection (c);

(C)

can establish that he or she has contributed to the community through employment, education, military service or other enterprise as described in subsection (d);

(D)

has demonstrated sufficient mastery of basic English skills as described in subsection (e); and

(E)

where applicable, can establish proof of registration under the Military Selective Service Act (50 U.S.C. App. 451 et seq.).

(b)

Admissible under immigration laws

A conditional nonimmigrant or conditional nonimmigrant dependent applying for adjustment of status under this section shall establish that he or she is not inadmissible under section 212(a) of the Immigration and Nationality Act (8 U.S.C. 1182(a)), except for any provision under that section that is not applicable or waived under paragraph (2) or (3) of section 401(d). For purposes of an application filed under this section, any prior waiver of inadmissibility granted to an alien under section 401(d)(2) shall remain in effect with respect to the specific conduct considered by the Secretary at the time of classification under section 401.

(c)

Payment of income taxes

(1)

In general

Not later than the date on which status is adjusted under this section, a conditional nonimmigrant or conditional nonimmigrant dependent shall satisfy any applicable Federal tax liability by establishing that—

(A)

no such tax liability exists;

(B)

all outstanding liabilities have been paid; or

(C)

the conditional nonimmigrant has entered into, and is in compliance with, an agreement for payment of all outstanding liabilities with the Internal Revenue Service.

(2)

Applicable Federal tax liability

For purposes of paragraph (1), the term applicable Federal tax liability means liability for Federal taxes, including penalties and interest, owed for any year while classified as a conditional nonimmigrant or conditional nonimmigrant dependent for which the statutory period for assessment of any deficiency for such taxes has not expired.

(3)

IRS cooperation

The Secretary of the Treasury shall establish rules and procedures under which the Commissioner of Internal Revenue shall provide documentation to—

(A)

a conditional nonimmigrant or conditional nonimmigrant dependent, upon request, to establish the payment of all taxes required under this subsection; or

(B)

the Secretary, upon request, regarding the payment of Federal taxes by an alien applying for a benefit under this section.

(4)

Compliance

The alien may satisfy proof of compliance with this subsection by submitting documentation that establishes that—

(A)

no such tax liability exists;

(B)

all outstanding liabilities have been met; or

(C)

the alien has entered into, and is in compliance with, an agreement for payment of all outstanding liabilities with the Internal Revenue Service.

(d)

Contributions to the United States Through Employment, Education, Military Service or other Commitment to the Community

(1)

An alien shall demonstrate contributions to the United States by submitting evidence that he or she—

(A)

is or has been engaged in full-time, part-time, self, or seasonal employment in the United States; or

(B)

has completed or is enrolled in an accredited education program as described under subsection (e)(1)(B) of section 401; or

(C)

is serving in the military or has completed military service as described in subsection (e)(1)(C) of section 401; or

(D)

otherwise establishes, to the satisfaction of the Secretary, that the alien is an active volunteer or community member; or

(E)

is exempt from these requirements, as described under subsection (e)(2) of section 401; and

(F)

is self-sufficient or self-supporting, including through the support of family, community members, or others, as determined by the Secretary, such that the alien is not a public charge or at risk of becoming a public charge.

(2)

Evidence of employment, education, military service or other contributions

(A)

Conclusive documents

An alien may conclusively establish compliance with paragraph (1) by submitting records to the Secretary that demonstrate such employment, education, military service, or other contributions that have been maintained by the Social Security Administration, the Internal Revenue Service, the Armed Services or any other Federal, State, or local government agency or public or private educational institution.

(B)

Other documents

An alien who is unable to submit a document described in subparagraph (A) may satisfy the requirement under paragraph (1) by submitting to the Secretary at least 2 other types of reliable documents that provide evidence of contributions to the United States, including—

(i)

bank records;

(ii)

business records;

(iii)

employer records;

(iv)

records of a labor union, day labor center, or organization that assists workers in employment;

(v)

records of a registered charitable, voluntary or 501(c)(3) nonprofit organization; and

(vi)

sworn affidavits from nonrelatives who have direct knowledge of the alien’s contribution, that contain—

(I)

the name, address, and telephone number of the affiant;

(II)

the nature and duration of the relationship between the affiant and the alien; and

(III)

other verification or information; and

(vii)

remittance records.

(C)

Additional documents and restrictions

The Secretary may—

(i)

designate additional documents to evidence employment, education, military service or and other contributions to the United States; and

(ii)

set such terms and conditions on the use of affidavits as is necessary to verify and confirm the identity of any affiant or otherwise prevent fraudulent submissions.

(4)

Burden of proof

An alien described in paragraph (1) who is applying for adjustment of status under this section shall prove, by a preponderance of the evidence, that the alien has satisfied the requirements of this subsection. An alien may meet such burden of proof by producing sufficient evidence to demonstrate employment, education, military service, or other contribution to the United States as a matter of reasonable inference.

(e)

Basic citizenship skills

(1)

In general

Except as provided under paragraph (2), a conditional nonimmigrant or conditional nonimmigrant dependent shall establish that he or she—

(A)

meets the requirements under section 312 of the Immigration and Nationality Act (8 U.S.C. 1423);

(B)

earned a high school diploma or obtained a general education development certificate in the United States; or

(C)

is satisfactorily pursuing a course of study to achieve such an understanding of English and knowledge and understanding of the history and Government of the United States.

(2)

Relation to naturalization examination

A conditional nonimmigrant or conditional nonimmigrant dependent who demonstrates that he or she meets the requirements under such section 312 may be considered to have satisfied the requirements of that section for purposes of becoming naturalized as a citizen of the United States under title III of the Immigration and Nationality Act (8 U.S.C. 1401 et seq.).

(3)

Exceptions

(A)

Mandatory

Paragraph (1) shall not apply to any person who is unable to comply with those requirements because of a physical or developmental disability or mental impairment (as described in section 312(b)(1) of the Immigration and Nationality Act (8 U.S.C. 1423(b)(1))).

(B)

Discretionary

The Secretary may waive all or part of paragraph (1) for a conditional nonimmigrant who is at least 65 years of age on the date on which an application is filed for adjustment of status under this section.

(f)

Application procedure, fees, and fines

(1)

Compliance with all requirements

A conditional nonimmigrant or conditional nonimmigrant dependent seeking to adjust status to that of a lawful permanent resident shall submit to a full medical examination and all security and other law enforcement checks required of an applicant for adjustment under section 245 of the Immigration and Nationality Act.

(2)

Application and fee

The Secretary shall promulgate regulations establishing procedures for submitting an application for adjustment of status under this section. The Secretary shall impose a fee for filing an application for adjustment of status under this section which shall be sufficient to cover the administrative and other expenses incurred in connection with the review of such applications.

(3)

Deposit of fees

Fees collected under this paragraph shall be deposited into the Immigration Examination Fee Account and shall remain available as provided under subsections (m) and (n) of section 286 of the Immigration and Nationality Act (8 U.S.C. 1356).

(g)

Treatment of conditional nonimmigrant dependents

(1)

Adjustment of status

Notwithstanding any other provision of law, the Secretary may—

(A)

adjust the status of a conditional nonimmigrant dependent to that of a person admitted for lawful permanent residence if the principal conditional nonimmigrant spouse or parent has been found eligible for adjustment of status under this section, provided that the dependent complies with subparagraphs (A), (B), and (E), where applicable, of subsection (a)(2) and completes the application requirements described in subsection (f);

(B)

adjust the status of a conditional nonimmigrant dependent who was the spouse or child of an alien who was classified as a conditional nonimmigrant, or was eligible for such classification under section 401, to that of a person admitted for permanent residence if—

(i)

the termination of the relationship with such spouse or parent was connected to domestic violence; and

(ii)

the spouse or child has been battered or subjected to extreme cruelty by the spouse or parent; provided that the dependent complies with subparagraphs (A), (B), and (E), where applicable, of subsection (a)(2) and completes the application requirements described in subsection (g).

(2)

Application of other law

In processing applications under this subsection on behalf of aliens who have been battered or subjected to extreme cruelty, the Secretary shall apply—

(A)

the provisions under section 204(a)(1)(J) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)(J)); and

(B)

the protections, prohibitions, and penalties under section 384 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1367).

(h)

Back of the line

(1)

In general

An alien may not adjust status to that of a lawful permanent resident status under this Act until that earlier of—

(A)

30 days after an immigrant visa becomes available for petitions filed under section 201, 202, or 203 of the Immigration and Nationality Act (8 U.S.C. 1151, 1152, and 1153), which were filed before the date of enactment of this Act; or

(B)

6 years after the date of the enactment of this Act.

(2)

Special rule for conditional immigrants qualifying under subsection (e)(2)(D) of section 401

An alien who qualifies as a conditional nonimmigrant as described in subsection (e)(2)(D) of section 401 shall be eligible to apply for adjustment of status immediately upon the completion of one of the following:

(A)

The alien has acquired a degree from an institution of higher education in the United States or has completed at least 2 years, in good standing, in a program for a bachelor’s degree or higher degree in the United States.

(B)

The alien has served in the uniformed services for at least 2 years and, if discharged, has received an honorable discharge.

(C)

The alien has been employed full-time, part-time, or seasonally for at least 2 years prior to date of application.

(3)

Naturalization

For purposes of naturalization only, aliens who adjust their status to that of a lawful permanent resident under the special rule described in paragraph (2) shall be eligible to apply for naturalization 3 years after the date on which adjustment of status is granted.

(i)

Ineligibility for public benefits

For purposes of section 403 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1613), an alien whose status has been adjusted under this section shall not be eligible for any Federal means-tested public benefit unless the alien meets the alien eligibility criteria for such benefit under title IV of such Act (8 U.S.C. 1601 et seq.).

403.

Administrative and judicial review

(a)

Administrative review

(1)

Single level of administrative Appellate review

The Secretary of Homeland Security shall establish an independent appellate authority within the Bureau of Citizenship and Immigration Services to provide for a single level of administrative appellate review of a determination respecting an application for classification or adjustment of status under this subtitle.

(2)

Standard for review

Administrative appellate review referred to in paragraph (1) shall be based solely upon the administrative record established at the time of the determination on the application and upon the presentation of additional or newly discovered evidence during the time of the pending appeal or subsequently on motion to reopen.

(b)

Judicial review

(1)

Direct review

A person whose application for classification or adjustment of status under this subtitle is denied after administrative appellate review under subsection (a) may seek review of such denial, in accordance with chapter 7 of title 5, United States Code, before the United States district court for the district in which the person resides.

(2)

Review after removal proceedings

There shall be judicial review in the Federal courts of appeal of the denial of an application for classification or adjustment of status under this subtitle in conjunction with judicial review of an order of removal, deportation, or exclusion.

(3)

Standard for judicial review

Judicial review of a denial of an application under this subtitle shall be based upon the administrative record established at the time of the review, but the court may remand the case to the agency for consideration of additional evidence where the court finds that the evidence is material and there were reasonable grounds for failure to adduce the evidence before the agency. Notwithstanding any other provision of law, judicial review of all questions arising from a denial of an application under this subtitle shall be governed by the standard of review set forth in chapter 7 of title 5, United States Code.

(4)

Remedial powers

Notwithstanding any other provision of law, the district courts of the United States shall have jurisdiction over any cause or claim arising from a pattern or practice of the Secretary of Homeland Security in the operation or implementation of this subtitle that is arbitrary, capricious, or otherwise contrary to law, and may order any appropriate relief. The district courts may order any appropriate relief in accordance with the preceding sentence without regard to exhaustion, ripeness, or other standing requirements (other than constitutionally-mandated requirements), if the court determines that resolution of such cause or claim will serve judicial and administrative efficiency or that a remedy would otherwise not be reasonably available or practicable.

(c)

Stay of removal

Aliens seeking administrative or judicial review under this section shall not be removed from the United States until a final decision is rendered establishing ineligibility under this subtitle.

404.

Mandatory disclosure of information

(a)

Mandatory disclosure

The Secretary and the Secretary of State shall provide a duly recognized law enforcement entity that submits a written request with the information furnished pursuant to an application filed under this subtitle, and any other information derived from such furnished information, in connection with a criminal investigation or prosecution, or a national security investigation or prosecution, of an individual suspect or group of suspects.

(b)

Limitations

Except as otherwise provided under this section, no Federal agency, or any officer, employee, or agent of such agency, may—

(1)

use the information furnished by the applicant pursuant to an application for benefits under this subtitle for any purpose other than to make a determination on the application;

(2)

make any publication through which the information furnished by any particular applicant can be identified; or

(3)

permit anyone other than the sworn officers and employees of such agency to examine individual applications.

(c)

Construction

Nothing under subsection (b) shall prevent an alien or an alien’s attorney access to his or her application, case file, or information related to such application or adjudication thereof.

(d)

Criminal penalty

Any person who knowingly uses, publishes, or permits information to be examined in violation of this section shall be fined not more than $10,000.

405.

Penalties for false statements in applications

(a)

Criminal Penalty

(1)

Violation

It shall be unlawful for any person—

(A)

to file, or assist in filing, an application for benefits under this subtitle; and

(i)

to knowingly and willfully falsify, misrepresent, conceal, or cover up a material fact;

(ii)

to make any false, fictitious, or fraudulent statements or representations; or

(iii)

to make or use any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry; or

(B)

to create or supply a false writing or document for use in making such an application.

(2)

Penalty

Any person who violates paragraph (1) shall be fined in accordance with title 18, United States Code, imprisoned not more than 5 years, or both.

(b)

Inadmissibility

An alien who is convicted of violating subsection (a) shall be considered to be inadmissible to the United States on the ground described in section 212(a)(6)(C)(i) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(6)(C)(i)).

(c)

Exception

Notwithstanding subsections (a) and (b), any alien or other entity (including an employer or union) that submits an employment record that contains incorrect data used by the alien to obtain such employment, shall not, on that ground, be determined to have violated this section.

406.

Aliens not subject to direct numerical limitations

Section 201(b)(1) (8 U.S.C. 1151(b)(1)), as amended by title III, is further amended—

(1)

in subparagraph (A), by striking subparagraph (A) or (B) of; and

(2)

by adding at the end the following:

(N)

Aliens whose status is adjusted from that of a conditional nonimmigrant or conditional nonimmigrant dependent.

.

407.

Employer protections

(a)

Immigration status of alien

Employers of aliens applying for conditional nonimmigrant or conditional nonimmigrant dependent classification or adjustment of status under section 401 or 402 shall not be subject to civil and criminal tax liability relating directly to the employment of such alien before receiving employment authorization under this subtitle.

(b)

Provision of employment records

Employers that provide unauthorized aliens with copies of employment records or other evidence of employment pursuant to an application for conditional nonimmigrant or conditional nonimmigrant dependent classification or adjustment of status under section 401 or 402 or any other application or petition pursuant to any other immigration law, shall not be subject to civil and criminal liability under section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a) for employing such unauthorized aliens.

(c)

Applicability of other law

Nothing in this section may be used to shield an employer from liability under section 274B of the Immigration and Nationality Act (8 U.S.C. 1324b) or any other labor or employment law.

408.

Limitations on eligibility

(a)

In general

An alien is not ineligible for any immigration benefit under any provision of this subtitle, or any amendment made by this subtitle, solely on the basis that the alien violated section 1543, 1544, or 1546 of title 18, United States Code, or any amendment made by this Act, during the period beginning on the date of the enactment of this Act and ending on the date on which the alien applies for any benefits under this subtitle.

(b)

Prosecution

An alien who violates section 1543, 1544, or 1546 of such title, or any amendment made by this Act, during the period beginning on the date of the enactment of this Act and ending on the date that the alien applies for eligibility for such benefit may be prosecuted for the violation if the alien"s application for such benefit is denied.

409.

Rulemaking

The Secretary shall promulgate regulations regarding the timely filing and processing of applications for benefits under this subtitle.

410.

Correction of Social Security records

(a)

In general

Section 208(e)(1) of the Social Security Act (42 U.S.C. 408(e)(1)) is amended—

(1)

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

(2)

in subparagraph (C), by inserting or at the end;

(3)

by inserting after subparagraph (C) the following:

(D)

who is granted an adjustment of immigration status pursuant to the CIR ASAP Act of 2009 or an amendment made by that Act,

; and

(4)

by striking 1990. and inserting 1990, or in the case of an alien described in subparagraph (D), if such conduct is alleged to have occurred before the date on which the alien was granted an adjustment of status described in such subparagraph..

(b)

Effective date

The amendments made by subsection (a) shall take effect on the first day of the seventh month that begins after the date of the enactment of this Act.

411.

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

(a)

In General

Section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1623) is repealed.

(b)

Effective Date

The repeal under subsection (a) shall take effect as if included in the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208; 110 Stat. 3009–546).

412.

Authorization of appropriations

(a)

In general

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

(b)

Availability of funds

Funds appropriated pursuant to subsection (a) shall remain available until expended.

(c)

Sense of Congress

It is the sense of Congress that funds authorized to be appropriated under subsection (a) should be directly appropriated so as to facilitate the orderly and timely commencement of the processing of applications filed under sections 401 and 402.

B

Agricultural Job Opportunities, Benefits, and Security

1

Title and definitions

421.

Short title

This subtitle may be cited as the Agricultural Job Opportunities, Benefits, and Security Act of 2009 or the AgJOBS Act of 2009.

422.

Definitions

In this Act:

(1)

Agricultural employment

The term agricultural employment means any service or activity that is considered to be agricultural under section 3(f) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(f)) or agricultural labor under section 3121(g) of the Internal Revenue Code of 1986 or the performance of agricultural labor or services described in section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)).

(2)

Blue card status

The term blue card status means the status of an alien who has been lawfully admitted into the United States for temporary residence under section 101(a).

(3)

Department

The term Department means the Department of Homeland Security.

(4)

Employer

The term employer means any person or entity, including any farm labor contractor and any agricultural association, that employs workers in agricultural employment.

(5)

Secretary

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

(6)

Work day

The term work day means any day in which the individual is employed 5.75 or more hours in agricultural employment.

2

Pilot Program for Earned Status Adjustment of Agricultural Workers

A

Blue card status

431.

Requirements for blue card status

(a)

Requirement To grant blue card status

Notwithstanding any other provision of law, the Secretary shall, pursuant to the requirements of this section, grant blue card status to an alien who qualifies under this section if the Secretary determines that the alien—

(1)

during the 24-month period ending on December 31, 2008—

(A)

performed agricultural employment in the United States for at least 863 hours or 150 work days; or

(B)

earned at least $7,500 from agricultural employment in the United States;

(2)

applied for such status during the 18-month application period beginning on the first day of the seventh month that begins after the date of enactment of this Act;

(3)

is otherwise admissible to the United States under section 212 of the Immigration and Nationality Act (8 U.S.C. 1182), except as otherwise provided under section 105(b); and

(4)

has not been convicted of any felony or a misdemeanor, an element of which involves bodily injury, threat of serious bodily injury, or harm to property in excess of $500.

(b)

Authorized travel

An alien who is granted blue card status is authorized to travel outside the United States (including commuting to the United States from a residence in a foreign country) in the same manner as an alien lawfully admitted for permanent residence.

(c)

Authorized employment

The Secretary shall provide an alien who is granted blue card status an employment authorized endorsement or other appropriate work permit, in the same manner as an alien lawfully admitted for permanent residence.

(d)

Termination of blue card status

(1)

Deportable aliens

The Secretary shall terminate blue card status granted to an alien if the Secretary determines that the alien is deportable.

(2)

Other grounds for termination

The Secretary shall terminate blue card status granted to an alien if—

(A)

the Secretary finds, by a preponderance of the evidence, that the adjustment to blue card status was the result of fraud or willful misrepresentation, as described in section 212(a)(6)(C)(i) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(6)(C)(i)); or

(B)

the alien—

(i)

commits an act that makes the alien inadmissible to the United States under section 212 of the Immigration and Nationality Act (8 U.S.C. 1182), except as provided under section 105(b);

(ii)

is convicted of a felony or 3 or more misdemeanors committed in the United States;

(iii)

is convicted of an offense, an element of which involves bodily injury, threat of serious bodily injury, or harm to property in excess of $500; or

(iv)

fails to perform the agricultural employment required under paragraph (1)(A) of section 103(a) unless the alien was unable to work in agricultural employment due to the extraordinary circumstances described in paragraph (3) of such section.

(e)

Record of employment

(1)

In general

Each employer of an alien granted blue card status shall annually—

(A)

provide a written record of employment to the alien; and

(B)

provide a copy of such record to the Secretary.

(2)

Civil penalties

(A)

In general

If the Secretary finds, after notice and opportunity for a hearing, that an employer of an alien granted blue card status has failed to provide the record of employment required under paragraph (1) or has provided a false statement of material fact in such a record, the employer shall be subject to a civil penalty in an amount not to exceed $1,000 per violation.

(B)

Limitation

The penalty applicable under subparagraph (A) for failure to provide records shall not apply unless the alien has provided the employer with evidence of employment authorization granted under this section.

(3)

Sunset

The obligation under paragraph (1) shall terminate on the date that is 6 years after the date of the enactment of this Act.

(f)

Required features of identity card

The Secretary shall provide each alien granted blue card status, and the spouse and any child of each such alien residing in the United States, with a card that contains—

(1)

an encrypted, machine-readable, electronic identification strip that is unique to the alien to whom the card is issued;

(2)

biometric identifiers, including fingerprints and a digital photograph; and

(3)

physical security features designed to prevent tampering, counterfeiting, or duplication of the card for fraudulent purposes.

(g)

Fine

An alien granted blue card status shall pay a fine of $100 to the Secretary.

(h)

Maximum number

The Secretary may not issue more than 1,350,000 blue cards during the 5-year period beginning on the date of the enactment of this Act.

432.

Treatment of aliens granted blue card status

(a)

In general

Except as otherwise provided under this section, an alien granted blue card status (including a spouse or child of the alien granted derivative status) shall be considered to be an alien lawfully admitted for permanent residence for purposes of any law other than any provision of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).

(b)

Delayed eligibility for certain Federal public benefits

Except as otherwise provided in law, an alien granted blue card status shall not be eligible, by reason of such status, for any form of assistance or benefit described in section 403(a) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1613(a)) until 5 years after the date on which the alien is granted an adjustment of status under section 103.

433.

Adjustment to permanent residence

(a)

In general

Except as provided in subsection (b), the Secretary shall adjust the status of an alien granted blue card status to that of an alien lawfully admitted for permanent residence if the Secretary determines that the following requirements are satisfied:

(1)

Qualifying employment

(A)

In general

Subject to subparagraph (B), the alien has performed at least—

(i)

5 years of agricultural employment in the United States for at least 100 work days per year, during the 5-year period beginning on the date of the enactment of this Act; or

(ii)

3 years of agricultural employment in the United States for at least 150 work days per year, during the 3-year period beginning on the date of the enactment of this Act.

(B)

4-year period of employment

An alien shall be considered to meet the requirements of subparagraph (A) if the alien has performed 4 years of agricultural employment in the United States for at least 150 work days during 3 years of those 4 years and at least 100 work days during the remaining year, during the 4-year period beginning on the date of the enactment of this Act.

(2)

Proof

An alien may demonstrate compliance with the requirement under paragraph (1) by submitting—

(A)

the record of employment described in section 101(e); or

(B)

documentation that may be submitted under section 104(c).

(3)

Extraordinary circumstances

(A)

In general

In determining whether an alien has met the requirement of paragraph (1)(A), the Secretary may credit the alien with not more than 12 additional months of agricultural employment in the United States to meet such requirement if the alien was unable to work in agricultural employment due to—

(i)

pregnancy, injury, or disease, if the alien can establish such pregnancy, disabling injury, or disease through medical records;

(ii)

illness, disease, or other special needs of a minor child, if the alien can establish such illness, disease, or special needs through medical records;

(iii)

severe weather conditions that prevented the alien from engaging in agricultural employment for a significant period of time; or

(iv)

termination from agricultural employment, if the Secretary finds that the termination was without just cause and that the alien was unable to find alternative agricultural employment after a reasonable job search.

(B)

Effect of finding

A finding made under subparagraph (A)(iv), with respect to an alien, shall not—

(i)

be conclusive, binding, or admissible in a separate or subsequent judicial or administrative action or proceeding between the alien and a current or prior employer of the alien or any other party; or

(ii)

subject the alien's employer to the payment of attorney fees incurred by the alien in seeking to obtain a finding under subparagraph (A)(iv).

(4)

Application period

The alien applies for adjustment of status not later than 7 years after the date of the enactment of this Act.

(5)

Fine

The alien pays a fine of $400 to the Secretary.

(b)

Grounds for denial of adjustment of status

The Secretary shall deny an alien granted blue card status an adjustment of status under this section if—

(1)

the Secretary finds, by a preponderance of the evidence, that the adjustment to blue card status was the result of fraud or willful misrepresentation, as described in section 212(a)(6)(C)(i) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(6)(C)(i)); or

(2)

the alien—

(A)

commits an act that makes the alien inadmissible to the United States under section 212 of the Immigration and Nationality Act (8 U.S.C. 1182), except as provided under section 105(b);

(B)

is convicted of a felony or 3 or more misdemeanors committed in the United States;

(C)

is convicted of an offense, an element of which involves bodily injury, threat of serious bodily injury, or harm to property in excess of $500; or

(D)

failed to perform the agricultural employment required under paragraph (1)(A) of subsection (a) unless the alien was unable to work in agricultural employment due to the extraordinary circumstances described in paragraph (3) of such subsection.

(c)

Grounds for removal

Any alien granted blue card status who does not apply for adjustment of status under this section before the expiration of the application period described in subsection (a)(4) or who fails to meet the other requirements of subsection (a) by the end of the application period, is deportable and may be removed under section 240 of the Immigration and Nationality Act (8 U.S.C. 1229a).

(d)

Payment of taxes

(1)

In general

Not later than the date on which an alien’s status is adjusted under this section, the alien shall establish that the alien does not owe any applicable Federal tax liability by establishing that—

(A)

no such tax liability exists;

(B)

all such outstanding tax liabilities have been paid; or

(C)

the alien has entered into an agreement for payment of all outstanding liabilities with the Internal Revenue Service.

(2)

Applicable federal tax liability

In paragraph (1) the term applicable Federal tax liability means liability for Federal taxes, including penalties and interest, owed for any year during the period of employment required under subsection (a)(1) for which the statutory period for assessment of any deficiency for such taxes has not expired.

(3)

IRS cooperation

The Secretary of the Treasury shall establish rules and procedures under which the Commissioner of Internal Revenue shall provide documentation to an alien upon request to establish the payment of all taxes required by this subsection.

(e)

Spouses and minor children

(1)

In general

Notwithstanding any other provision of law, the Secretary shall confer the status of lawful permanent resident on the spouse and minor child of an alien granted any adjustment of status under subsection (a), including any individual who was a minor child on the date such alien was granted blue card status, if the spouse or minor child applies for such status, or if the principal alien includes the spouse or minor child in an application for adjustment of status to that of a lawful permanent resident.

(2)

Treatment of spouses and minor children

(A)

Granting of status and removal

The Secretary shall grant derivative status to the alien spouse and any minor child residing in the United States of an alien granted blue card status and shall not remove such derivative spouse or child during the period that the alien granted blue card status maintains such status, except as provided in paragraph (3). A grant of derivative status to such a spouse or child under this subparagraph shall not decrease the number of aliens who may receive blue card status under subsection (h) of section 101.

(B)

Travel

The derivative spouse and any minor child of an alien granted blue card status may travel outside the United States in the same manner as an alien lawfully admitted for permanent residence.

(C)

Employment

The derivative spouse of an alien granted blue card status may apply to the Secretary for a work permit to authorize such spouse to engage in any lawful employment in the United States while such alien maintains blue card status.

(3)

Grounds for denial of adjustment of status and removal

The Secretary shall deny an alien spouse or child adjustment of status under paragraph (1) and may remove such spouse or child under section 240 of the Immigration and Nationality Act (8 U.S.C. 1229a) if the spouse or child—

(A)

commits an act that makes the alien spouse or child inadmissible to the United States under section 212 of such Act (8 U.S.C. 1182), except as provided under section 105(b);

(B)

is convicted of a felony or 3 or more misdemeanors committed in the United States; or

(C)

is convicted of an offense, an element of which involves bodily injury, threat of serious bodily injury, or harm to property in excess of $500.

434.

Applications

(a)

Submission

The Secretary shall provide that—

(1)

applications for blue card status may be submitted—

(A)

to the Secretary if the applicant is represented by an attorney or a nonprofit religious, charitable, social service, or similar organization recognized by the Board of Immigration Appeals under section 292.2 of title 8, Code of Federal Regulations; or

(B)

to a qualified designated entity if the applicant consents to the forwarding of the application to the Secretary; and

(2)

applications for adjustment of status under section 103 shall be filed directly with the Secretary.

(b)

Qualified designated entity defined

In this section, the term qualified designated entity means—

(1)

a qualified farm labor organization or an association of employers designated by the Secretary; or

(2)

any such other person designated by the Secretary if that Secretary determines such person is qualified and has substantial experience, demonstrated competence, and has a history of long-term involvement in the preparation and submission of applications for adjustment of status under section 209, 210, or 245 of the Immigration and Nationality Act (8 U.S.C. 1159, 1160, and 1255), the Act entitled An Act to adjust the status of Cuban refugees to that of lawful permanent residents of the United States, and for other purposes, approved November 2, 1966 (Public Law 89–732; 8 U.S.C. 1255 note), Public Law 95–145 (8 U.S.C. 1255 note), or the Immigration Reform and Control Act of 1986 (Public Law 99–603; 100 Stat. 3359) or any amendment made by that Act.

(c)

Proof of eligibility

(1)

In general

An alien may establish that the alien meets the requirement of section 101(a)(1) or 103(a)(1) through government employment records or records supplied by employers or collective bargaining organizations, and other reliable documentation as the alien may provide. The Secretary shall establish special procedures to properly credit work in cases in which an alien was employed under an assumed name.

(2)

Documentation of work history

(A)

Burden of proof

An alien applying for status under section 101(a) or 103(a) has the burden of proving by a preponderance of the evidence that the alien has worked the requisite number of hours or days required under section 101(a)(1) or 103(a)(1), as applicable.

(B)

Timely production of records

If an employer or farm labor contractor employing such an alien has kept proper and adequate records respecting such employment, the alien’s burden of proof under subparagraph (A) may be met by securing timely production of those records under regulations to be promulgated by the Secretary.

(C)

Sufficient evidence

An alien may meet the burden of proof under subparagraph (A) to establish that the alien has performed the days or hours of work required by section 101(a)(1) or 103(a)(1) by producing sufficient evidence to show the extent of that employment as a matter of just and reasonable inference.

(d)

Applications submitted to qualified designated entities

(1)

Requirements

Each qualified designated entity shall agree—

(A)

to forward to the Secretary an application submitted to that entity pursuant to subsection (a)(1)(B) if the applicant has consented to such forwarding;

(B)

not to forward to the Secretary any such application if the applicant has not consented to such forwarding; and

(C)

to assist an alien in obtaining documentation of the alien's work history, if the alien requests such assistance.

(2)

No authority to make determinations

No qualified designated entity may make a determination required by this subtitle to be made by the Secretary.

(e)

Limitation on access to information

Files and records collected or compiled by a qualified designated entity for the purposes of this section are confidential and the Secretary shall not have access to such a file or record relating to an alien without the consent of the alien, except as allowed by a court order issued pursuant to subsection (f).

(f)

Confidentiality of information

(1)

In general

Except as otherwise provided in this section, the Secretary or any other official or employee of the Department or a bureau or agency of the Department is prohibited from—

(A)

using information furnished by the applicant pursuant to an application filed under this subtitle, the information provided by an applicant to a qualified designated entity, or any information provided by an employer or former employer for any purpose other than to make a determination on the application or for imposing the penalties described in subsection (g);

(B)

making any publication in which the information furnished by any particular individual can be identified; or

(C)

permitting a person other than a sworn officer or employee of the Department or a bureau or agency of the Department or, with respect to applications filed with a qualified designated entity, that qualified designated entity, to examine individual applications.

(2)

Required disclosures

The Secretary shall provide the information furnished under this subtitle or any other information derived from such furnished information to—

(A)

a duly recognized law enforcement entity in connection with a criminal investigation or prosecution, if such information is requested in writing by such entity; or

(B)

an official coroner, for purposes of affirmatively identifying a deceased individual, whether or not the death of such individual resulted from a crime.

(3)

Construction

(A)

In general

Nothing in this subsection shall be construed to limit the use, or release, for immigration enforcement purposes or law enforcement purposes, of information contained in files or records of the Department pertaining to an application filed under this section, other than information furnished by an applicant pursuant to the application, or any other information derived from the application, that is not available from any other source.

(B)

Criminal convictions

Notwithstanding any other provision of this subsection, information concerning whether the alien applying for blue card status or an adjustment of status under section 103 has been convicted of a crime at any time may be used or released for immigration enforcement or law enforcement purposes.

(4)

Crime

Any person who knowingly uses, publishes, or permits information to be examined in violation of this subsection shall be subject to a fine in an amount not to exceed $10,000.

(g)

Penalties for false statements in applications

(1)

Criminal penalty

Any person who—

(A)

files an application for blue card status or an adjustment of status under section 103 and knowingly and willfully falsifies, conceals, or covers up a material fact or makes any false, fictitious, or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry; or

(B)

creates or supplies a false writing or document for use in making such an application,

shall be fined in accordance with title 18, United States Code, imprisoned not more than 5 years, or both.
(2)

Inadmissibility

An alien who is convicted of a crime under paragraph (1) shall be considered to be inadmissible to the United States on the ground described in section 212(a)(6)(C)(i) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(6)(C)(i)).

(h)

Eligibility for legal services

Section 504(a)(11) of Public Law 104–134 (110 Stat. 1321–53 et seq.) shall not be construed to prevent a recipient of funds under the Legal Services Corporation Act (42 U.S.C. 2996 et seq.) from providing legal assistance directly related to an application for blue card status or an adjustment of status under section 103.

(i)

Application fees

(1)

Fee schedule

The Secretary shall provide for a schedule of fees that—

(A)

shall be charged for the filing of an application for blue card status or for an adjustment of status under section 103; and

(B)

may be charged by qualified designated entities to help defray the costs of services provided to such applicants.

(2)

Prohibition on excess fees by qualified designated entities

A qualified designated entity may not charge any fee in excess of, or in addition to, the fees authorized under paragraph (1)(B) for services provided to applica