Text of H.R. 4760 (115th): Securing America’s Future Act of 2018 (Introduced version)

115th CONGRESS

2d Session

H. R. 4760

IN THE HOUSE OF REPRESENTATIVES

January 10, 2018

Mr. Goodlatte (for himself, Mr. McCaul, Mr. Labrador, Ms. McSally, Mr. Sensenbrenner, and Mr. Carter of Texas) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committees on Education and the Workforce, Homeland Security, Foreign Affairs, Ways and Means, Armed Services, Oversight and Government Reform, Agriculture, Transportation and Infrastructure, and Natural Resources, 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 amend the immigration laws and the homeland security laws, and for other purposes.

(a)

This Act may be cited as the Securing America’s Future Act of 2018.

(b)

The table of contents for this Act is as follows:

Sec. 1. Short title; table of contents.

Division A—Legal Immigration Reform

Title I—Immigrant Visa Allocations and Priorities

Sec. 1101. Family-sponsored immigration priorities.

Sec. 1102. Elimination of diversity visa program.

Sec. 1103. Employment-based immigration priorities.

Sec. 1104. Waiver of rights by B visa nonimmigrants.

Title II—Agricultural Worker Reform

Sec. 2101. Short title.

Sec. 2102. H–2C temporary agricultural work visa program.

Sec. 2103. Admission of temporary H–2C workers.

Sec. 2104. Mediation.

Sec. 2105. Migrant and seasonal agricultural worker protection.

Sec. 2106. Binding arbitration.

Sec. 2107. Eligibility for health care subsidies and refundable tax credits; required health insurance coverage.

Sec. 2108. Study of establishment of an agricultural worker employment pool.

Sec. 2109. Prevailing wage.

Sec. 2110. Effective dates; sunset; regulations.

Sec. 2111. Report on compliance and violations.

Title III—Visa Security

Sec. 3101. Cancellation of additional visas.

Sec. 3102. Visa information sharing.

Sec. 3103. Restricting waiver of visa interviews.

Sec. 3104. Authorizing the Department of State to not interview certain ineligible visa applicants.

Sec. 3105. Visa refusal and revocation.

Sec. 3106. Petition and application processing for visas and immigration benefits.

Sec. 3107. Fraud prevention.

Sec. 3108. Visa ineligibility for spouses and children of drug traffickers.

Sec. 3109. DNA testing.

Sec. 3110. Access to NCIC criminal history database for diplomatic visas.

Sec. 3111. Elimination of signed photograph requirement for visa applications.

Sec. 3112. Additional fraud detection and prevention.

Division B—Interior Immigration Enforcement

Title I—Legal Workforce Act

Sec. 1101. Short title.

Sec. 1102. Employment eligibility verification process.

Sec. 1103. Employment eligibility verification system.

Sec. 1104. Recruitment, referral, and continuation of employment.

Sec. 1105. Good faith defense.

Sec. 1106. Preemption and States’ rights.

Sec. 1107. Repeal.

Sec. 1108. Penalties.

Sec. 1109. Fraud and misuse of documents.

Sec. 1110. Protection of Social Security Administration programs.

Sec. 1111. Fraud prevention.

Sec. 1112. Use of employment eligibility verification photo tool.

Sec. 1113. Identity authentication employment eligibility verification pilot programs.

Sec. 1114. Inspector General audits.

Title II—Sanctuary Cities and State and Local Law Enforcement Cooperation

Sec. 2201. Short title.

Sec. 2202. State noncompliance with enforcement of immigration law.

Sec. 2203. Clarifying the authority of ice detainers.

Sec. 2204. Sarah and Grant’s law.

Sec. 2205. Clarification of congressional intent.

Sec. 2206. Penalties for illegal entry or presence.

Title III—Criminal aliens

Sec. 3301. Precluding admissibility of aliens convicted of aggravated felonies or other serious offenses.

Sec. 3302. Increased penalties barring the admission of convicted sex offenders failing to register and requiring deportation of sex offenders failing to register.

Sec. 3303. Grounds of inadmissibility and deportability for alien gang members.

Sec. 3304. Inadmissibility and deportability of drunk drivers.

Sec. 3305. Definition of aggravated felony.

Sec. 3306. Precluding withholding of removal for aggravated felons.

Sec. 3307. Protecting immigrants from convicted sex offenders.

Sec. 3308. Clarification to crimes of violence and crimes involving moral turpitude.

Sec. 3309. Detention of dangerous aliens.

Sec. 3310. Timely repatriation.

Sec. 3311. Illegal reentry.

Title IV—Asylum Reform

Sec. 4401. Clarification of intent regarding taxpayer-provided counsel.

Sec. 4402. Credible fear interviews.

Sec. 4403. Recording expedited removal and credible fear interviews.

Sec. 4404. Safe third country.

Sec. 4405. Renunciation of asylum status pursuant to return to home country.

Sec. 4406. Notice concerning frivolous asylum applications.

Sec. 4407. Anti-fraud investigative work product.

Sec. 4408. Penalties for asylum fraud.

Sec. 4409. Statute of limitations for asylum fraud.

Sec. 4410. Technical amendments.

Title V—Unaccompanied and Accompanied Alien Minors Apprehended Along the Border

Sec. 5501. Repatriation of unaccompanied alien children.

Sec. 5502. Special immigrant juvenile status for immigrants unable to reunite with either parent.

Sec. 5503. Jurisdiction of asylum applications.

Sec. 5504. Quarterly report to Congress.

Sec. 5505. Biannual report to Congress.

Sec. 5506. Clarification of standards for family detention.

Division C—Border Enforcement

Sec. 1100. Short title.

Title I—Border Security

Sec. 1101. Definitions.

Subtitle A—Infrastructure and Equipment

Sec. 1111. Strengthening the requirements for barriers along the southern border.

Sec. 1112. Air and Marine Operations flight hours.

Sec. 1113. Capability deployment to specific sectors and transit zone.

Sec. 1114. U.S. Border Patrol activities.

Sec. 1115. Border security technology program management.

Sec. 1116. Reimbursement of States for deployment of the National Guard at the southern border.

Sec. 1117. National Guard support to secure the southern border.

Sec. 1118. Prohibitions on actions that impede border security on certain Federal land.

Sec. 1119. Landowner and rancher security enhancement.

Sec. 1120. Eradication of carrizo cane and salt cedar.

Sec. 1121. Southern border threat analysis.

Sec. 1122. Amendments to U.S. Customs and Border Protection.

Sec. 1123. Agent and officer technology use.

Sec. 1124. Integrated Border Enforcement Teams.

Sec. 1125. Tunnel Task Forces.

Sec. 1126. Pilot program on use of electromagnetic spectrum in support of border security operations.

Sec. 1127. Homeland security foreign assistance.

Subtitle B—Personnel

Sec. 1131. Additional U.S. Customs and Border Protection agents and officers.

Sec. 1132. U.S. Customs and Border Protection retention incentives.

Sec. 1133. Anti-Border Corruption Reauthorization Act.

Sec. 1134. Training for officers and agents of U.S. Customs and Border Protection.

Subtitle C—Grants

Sec. 1141. Operation Stonegarden.

Subtitle D—Authorization of Appropriations

Sec. 1151. Authorization of appropriations.

Title II—Emergency Port of Entry Personnel and Infrastructure Funding

Sec. 2101. Ports of entry infrastructure.

Sec. 2102. Secure communications.

Sec. 2103. Border security deployment program.

Sec. 2104. Pilot and upgrade of license plate readers at ports of entry.

Sec. 2105. Non-intrusive inspection operational demonstration.

Sec. 2106. Biometric exit data system.

Sec. 2107. Sense of Congress on cooperation between agencies.

Sec. 2108. Authorization of appropriations.

Sec. 2109. Definition.

Title III—Visa Security and Integrity

Sec. 3101. Visa security.

Sec. 3102. Electronic passport screening and biometric matching.

Sec. 3103. Reporting of visa overstays.

Sec. 3104. Student and exchange visitor information system verification.

Sec. 3105. Social media review of visa applicants.

Title IV—Transnational Criminal Organization Illicit Spotter Prevention and Elimination

Sec. 4101. Short title.

Sec. 4102. Unlawfully hindering immigration, border, and customs controls.

Division D—Lawful Status for Certain Childhood Arrivals

Sec. 1101. Definitions.

Sec. 1102. Contingent nonimmigrant status for certain aliens who entered the United States as minors.

Sec. 1103. Administrative and judicial review.

Sec. 1104. Penalties and signature requirements.

Sec. 1105. Rulemaking.

Sec. 1106. Statutory construction.

1101.

(a)

Section 201 of the Immigration and Nationality Act (8 U.S.C. 1151) is amended—

(1)

in subsection (b)(2)(A)—

(A)

in clause (i), by striking children, spouses, and parents of a citizen of the United States, except that, in the case of parents, such citizens shall be at least 21 years of age. and inserting children and spouse of a citizen of the United States.; and

(B)

in clause (ii), by striking such an immediate relative and inserting the immediate relative spouse of a United States citizen;

(2)

by striking subsection (c) and inserting the following:

(c)

(1)

The worldwide level of family-sponsored immigrants under this subsection for a fiscal year is equal to 87,934 minus the number computed under paragraph (2).

(2)

The number computed under this paragraph for a fiscal year is the number of aliens who were paroled into the United States under section 212(d)(5) in the second preceding fiscal year who—

(A)

did not depart from the United States (without advance parole) within 365 days; and

(B)

(i)

did not acquire the status of an alien lawfully admitted to the United States for permanent residence during the two preceding fiscal years; or

(ii)

acquired such status during such period under a provision of law (other than subsection (b)) that exempts adjustment to such status from the numerical limitation on the worldwide level of immigration under this section.

; and

(3)

in subsection (f)—

(A)

in paragraph (2), by striking section 203(a)(2)(A) and inserting section 203(a);

(B)

by striking paragraph (3);

(C)

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

(D)

in paragraph (3), as redesignated, by striking (1) through (3) and inserting (1) and (2).

(b)

Section 203(a) of the Immigration and Nationality Act (8 U.S.C. 1153(a)) is amended to read as follows:

(a)

Family-sponsored immigrants described in this subsection are qualified immigrants who are the spouse or a child of an alien lawfully admitted for permanent residence. Such immigrants shall be allocated visas in accordance with the number computed under section 201(c).

(c)

Section 203(h) of the Immigration and Nationality Act (8 U.S.C. 1153(h)) is amended—

(1)

by striking (a)(2)(A) each place such term appears and inserting (a)(2);

(2)

by amending paragraph (1) to read as follows:

(1)

Subject to paragraph (2), for purposes of subsections (a)(2) and (d), a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 101(b)(1) shall be made using the age of the alien on the date on which a petition is filed with the Secretary of Homeland Security.

(3)

by redesignating paragraphs (2) through (4) as paragraphs (3) through (5), respectively;

(4)

by inserting after paragraph (1) the following:

(2)

Notwithstanding the age of an alien on the date on which a petition is filed, an alien who marries or turns 25 years of age prior to being issued a visa pursuant to subsection (a)(2) or (d), no longer satisfies the age requirement described in paragraph (1).

; and

(5)

in paragraph (5), as so redesignated, by striking (3) and inserting (4).

(d)

(1)

Section 101(a)(15)(V) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(V)) is amended by striking section 203(a)(2)(A) each place such term appears and inserting section 203(a).

(2)

Section 202 of such Act (8 U.S.C. 1152) is amended—

(A)

in subsection (a)(4)—

(i)

by striking subparagraphs (A) and (B) and inserting the following:

(A)

Of the visa numbers made available under section 203(a) in any fiscal year, 75 percent shall be issued without regard to the numerical limitation under paragraph (2).

(B)

(i)

Of the visa numbers made available under section 203(a) in any fiscal year, 25 percent shall be available, in the case of a foreign state or dependent area that is subject to subsection (e) only to the extent that the total number of visas issued in accordance with subparagraph (A) to natives of the foreign state or dependent area is less than the subsection (e) ceiling.

(ii)

In clause (i), the term subsection (e) ceiling means, for a foreign state or dependent area, 77 percent of the maximum number of visas that may be made available under section 203(a) to immigrants who are natives of the state or area, consistent with subsection (e).

; and

(ii)

by striking subparagraphs (C) and (D); and

(B)

in subsection (e)—

(i)

in paragraph (1), by adding and at the end;

(ii)

by striking paragraph (2);

(iii)

by redesignating paragraph (3) as paragraph (2); and

(iv)

in the undesignated matter after paragraph (2), as redesignated, by striking , respectively, and all that follows and inserting a period.

(3)

Section 204 of such Act (8 U.S.C. 1154) is amended—

(A)

in subsection (a)(1)—

(i)

in subparagraph (A)(i), by striking to classification by reason of a relationship described in paragraph (1), (3), or (4) of section 203(a) or;

(ii)

in subparagraph (B)—

(I)

in clause (i), by redesignating the second subclause (I) as subclause (II); and

(II)

by striking 203(a)(2)(A) each place such terms appear and inserting 203(a); and

(iii)

in subparagraph (D)(i)(I), by striking a petitioner and all that follows through section 204(a)(1)(B)(iii). and inserting an individual younger than 21 years of age for purposes of adjudicating such petition and for purposes of admission as an immediate relative under section 201(b)(2)(A)(i) or a family-sponsored immigrant under section 203(a), as appropriate, notwithstanding the actual age of the individual.;

(B)

in subsection (f)(1), by striking , 203(a)(1), or 203(a)(3), as appropriate; and

(C)

by striking subsection (k).

(4)

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

(A)

in subsection (a)(6)(E)(ii), by striking section 203(a)(2) and inserting section 203(a); and

(B)

in subsection (d)(11), by striking (other than paragraph (4) thereof).

(5)

Section 214(q)(1)(B)(i) of such Act (8 U.S.C. 1184(q)(1)(B)(i)) is amended by striking section 203(a)(2)(A) each place such term appears and inserting section 203(a).

(6)

Section 216(h)(1)(C) of such Act (8 U.S.C. 1186a(h)(1)(C)) is amended by striking section 203(a)(2) and inserting section 203(a).

(7)

Section 237(a)(1)(E)(ii) of such Act (8 U.S.C. 1227(a)(1)(E)(ii)) is amended by striking section 203(a)(2) and inserting section 203(a).

(e)

(1)

Section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)) is amended—

(A)

in subparagraph (T)(ii)(III), by striking the period at the end and inserting a semicolon;

(B)

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

(C)

in subparagraph (V)(ii)(II), by striking the period at the end and inserting ; or; and

(D)

by adding at the end the following:

(W)

Subject to section 214(s), an alien who is a parent of a citizen of the United States, if the citizen—

(i)

is at least 21 years of age; and

(ii)

has never received contingent nonimmigrant status under division D of the Securing America’s Future Act.

(2)

Section 214 of such Act (8 U.S.C. 1184) is amended by adding at the end the following:

(s)

(1)

The initial period of authorized admission for a nonimmigrant described in section 101(a)(15)(W) shall be 5 years, but may be extended by the Secretary of Homeland Security for additional 5-year periods if the United States citizen son or daughter of the nonimmigrant is still residing in the United States.

(2)

A nonimmigrant described in section 101(a)(15)(W)—

(A)

is not authorized to be employed in the United States; and

(B)

is not eligible for any Federal, State, or local public benefit.

(3)

Regardless of the resources of a nonimmigrant described in section 101(a)(15)(W), the United States citizen son or daughter who sponsored the nonimmigrant parent shall be responsible for the nonimmigrant’s support while the nonimmigrant resides in the United States.

(4)

An alien is ineligible to receive a visa or to be admitted into the United States as a nonimmigrant described in section 101(a)(15)(W) unless the alien provides satisfactory proof that the United States citizen son or daughter has arranged for health insurance coverage for the alien, at no cost to the alien, during the anticipated period of the alien’s residence in the United States.

(f)

(1)

The amendments made by this section shall take effect on October 1, 2018.

(2)

(A)

No person may file, and the Secretary of Homeland Security and the Secretary of State may not accept, adjudicate, or approve any petition under section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) filed on or after the date of enactment of this Act seeking classification of an alien under section 201(b)(2)(A)(i) with respect to a parent of a United States citizen, or under section 203(a)(1), (2)(B), (3) or (4) of such Act (8 U.S.C. 1151(b)(2)(A)(i), 1153(a)(1), (2)(B), (3), or (4)). Any application for adjustment of status or an immigrant visa based on such a petition shall be invalid.

(B)

Neither the Secretary of Homeland Security nor the Secretary of State may adjudicate or approve any petition under section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) pending as of the date of enactment of this Act seeking classification of an alien under section 201(b)(2)(A)(i) with respect to a parent of a United States citizen, or under section 203(a)(1), (2)(B), (3) or (4) of such Act (8 U.S.C. 1151(b)(2)(A)(i), 1153(a)(1), (2)(B), (3), or (4)). Any application for adjustment of status or an immigrant visa based on such a petition shall be invalid.

(3)

(A)

Notwithstanding the amendments made by this section, an alien with regard to whom a petition or application for status under paragraph (1), (2)(B), (3) or (4) of section 203(a) of the Immigration and Nationality Act (8 U.S.C. 1153(a)), as in effect on September 30, 2018, was approved prior to the date of the enactment of this Act, may be issued a visa pursuant to that paragraph in accordance with the availability of visas under subparagraph (B).

(B)

Visas may be issued to beneficiaries of approved petitions under each category described in subparagraph (A), but only until such time as the number of visas that would have been allocated to that category in fiscal year 2019, notwithstanding the amendments made by this section, have been issued. When the number of visas described in the previous sentence have been issued for each category described in subparagraph (A), no additional visas may be issued for that category.

1102.

(a)

Section 203 of the Immigration and Nationality Act (8 U.S.C. 1153) is amended by striking subsection (c).

(b)

(1)

The Immigration and Nationality Act (8 U.S.C. 1101 et seq.) is amended—

(A)

in section 101(a)(15)(V), by striking section 203(d) and inserting section 203(c);

(B)

in section 201—

(i)

in subsection (a)—

(I)

in paragraph (1), by adding and at the end; and

(II)

by striking paragraph (3); and

(ii)

by striking subsection (e);

(C)

in section 203—

(i)

in subsection (b)(2)(B)(ii)(IV), by striking section 203(b)(2)(B) each place such term appears and inserting clause (i);

(ii)

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

(iii)

in subsection (c), as redesignated, by striking subsection (a), (b), or (c) and inserting subsection (a) or (b);

(iv)

in subsection (d), as redesignated—

(I)

by striking paragraph (2); and

(II)

by redesignating paragraph (3) as paragraph (2);

(v)

in subsection (e), as redesignated, by striking subsection (a), (b), or (c) of this section and inserting subsection (a) or (b);

(vi)

in subsection (f), as redesignated, by striking subsections (a), (b), and (c) and inserting subsections (a) and (b); and

(vii)

in subsection (g), as redesignated—

(I)

by striking (d) each place such term appears and inserting (c); and

(II)

in paragraph (2)(B), by striking subsection (a), (b), or (c) and inserting subsection (a) or (b);

(D)

in section 204—

(i)

in subsection (a)(1), by striking subparagraph (I);

(ii)

in subsection (e), by striking subsection (a), (b), or (c) of section 203 and inserting subsection (a) or (b) of section 203; and

(iii)

in subsection (l)(2)—

(I)

in subparagraph (B), by striking section 203 (a) or (d) and inserting subsection (a) or (c) of section 203; and

(II)

in subparagraph (C), by striking section 203(d) and inserting section 203(c);

(E)

in section 214(q)(1)(B)(i), by striking section 203(d) and inserting section 203(c);

(F)

in section 216(h)(1), in the undesignated matter following subparagraph (C), by striking section 203(d) and inserting section 203(c); and

(G)

in section 245(i)(1)(B), by striking section 203(d) and inserting section 203(c).

(2)

Section 610(d) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993 (Public Law 102–395) is amended by striking section 203(e) of such Act (8 U.S.C. 1153(e)) and inserting section 203(d) of such Act (8 U.S.C. 1153(d)).

(c)

The amendments made by this section shall take effect on the first day of the first fiscal year beginning on or after the date of the enactment of this Act.

1103.

(a)

The Immigration and Nationality Act (8 U.S.C. 1101 et seq.) is amended—

(1)

in section 201(d)(1)(A), by striking 140,000 and inserting 195,000; and

(2)

in section 203(b)—

(A)

in paragraph (1), by striking 28.6 percent of such worldwide level and inserting 58,374;

(B)

in paragraphs (2) and (3), by striking 28.6 percent of such worldwide level each place it appears and inserting 58,373; and

(C)

by striking 7.1 percent of such worldwide level each place it appears and inserting 9,940.

(b)

The amendments made by subsection (a) shall take effect on the first day of fiscal year 2019 and shall apply to the visas made available in that and subsequent fiscal years.

1104.

Section 101(a)(15)(B) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(B)) is amended by adding before the semicolon at the end the following: , and who has waived any right to review or appeal of an immigration officer’s determination as to the admissibility of the alien at the port of entry into the United States, or to contest, other than on the basis of an application for asylum, any action for removal of the alien.

2101.

This title may be cited as—

(1)

the Agricultural Guestworker Act; or

(2)

the AG Act.

2102.

(a)

Section 101(a)(15)(H) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)) is amended by striking ; or (iii) and inserting , or (c) having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform agricultural labor or services; or (iii).

(b)

Section 101(a) of such Act (8 U.S.C. 1101(a)) is amended by adding at the end the following:

(53)

The term agricultural labor or services has the meaning given such term by the Secretary of Agriculture in regulations and includes—

(A)

agricultural labor as defined in section 3121(g) of the Internal Revenue Code of 1986;

(B)

agriculture as defined in section 3(f) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(f));

(C)

the handling, planting, drying, packing, packaging, processing, freezing, or grading prior to delivery for storage of any agricultural or horticultural commodity in its unmanufactured state;

(D)

all activities required for the preparation, processing or manufacturing of a product of agriculture (as such term is defined in such section 3(f)) for further distribution;

(E)

forestry-related activities;

(F)

aquaculture activities; and

(G)

the primary processing of fish or shellfish, except that in regard to labor or services consisting of meat or poultry processing, the term agricultural labor or services only includes the killing of animals and the breakdown of their carcasses.

2103.

(a)

Chapter 2 of title II of the Immigration and Nationality Act (8 U.S.C. 1181 et seq.) is amended by inserting after section 218 the following:

218A.

(a)

In this section and section 218B:

(1)

The term displace means to lay off a United States worker from the job for which H–2C workers are sought.

(2)

The term job refers to all positions with an employer that—

(A)

involve essentially the same responsibilities;

(B)

are held by workers with substantially equivalent qualifications and experience; and

(C)

are located in the same place or places of employment.

(3)

The term employer includes a single or joint employer, including an association acting as a joint employer with its members, who hires workers to perform agricultural labor or services.

(4)

The term forestry-related activities includes tree planting, timber harvesting, logging operations, brush clearing, vegetation management, herbicide application, the maintenance of rights-of-way (including for roads, trails, and utilities), regardless of whether such right-of-way is on forest land, and the harvesting of pine straw.

(5)

The term H–2C worker means a nonimmigrant described in section 101(a)(15)(H)(ii)(c).

(6)

(A)

The term lay off—

(i)

means to cause a worker’s loss of employment, other than through a discharge for inadequate performance, violation of workplace rules, cause, voluntary departure, voluntary retirement, or the expiration of a grant or contract (other than a temporary employment contract entered into in order to evade a condition described in paragraph (4) of subsection (b)); and

(ii)

does not include any situation in which the worker is offered, as an alternative to such loss of employment, a similar position with the same employer at equivalent or higher wages and benefits than the position from which the employee was discharged, regardless of whether or not the employee accepts the offer.

(B)

Nothing in this paragraph is intended to limit an employee’s rights under a collective bargaining agreement or other employment contract.

(7)

The term United States worker means any worker who is—

(A)

a citizen or national of the United States; or

(B)

an alien who is lawfully admitted for permanent residence, is admitted as a refugee under section 207, or is granted asylum under section 208.

(8)

The term special procedures industry includes sheepherding, goat herding, and the range production of livestock, itinerant commercial beekeeping and pollination, itinerant animal shearing, and custom combining and harvesting.

(b)

An employer that seeks to employ aliens as H–2C workers under this section shall file with the Secretary of Homeland Security a petition attesting to the following:

(1)

The employer will offer employment to the aliens on a contractual basis as H–2C workers under this section for a specific period of time during which the aliens may not work on an at-will basis (as provided for in section 218B), and such contract shall only be required to include a description of each place of employment, period of employment, wages and other benefits to be provided, and the duties of the positions.

(2)

(A)

The employer is seeking to employ a specific number of H–2C workers on a temporary basis and will provide compensation to such workers at a wage rate no less than that set forth in subsection (k)(2).

(B)

For purposes of this paragraph, a worker is employed on a temporary basis if the employer intends to employ the worker for no longer than the time period set forth in subsection (n)(1) (subject to the exceptions in subsection (n)(3)).

(3)

The employer will provide, at a minimum, the benefits, wages, and working conditions required by subsection (k) to all workers employed in the job for which the H–2C workers are sought.

(4)

The employer did not displace and will not displace United States workers employed by the employer during the period of employment of the H–2C workers and during the 30-day period immediately preceding such period of employment in the job for which the employer seeks approval to employ H–2C workers.

(5)

(A)

The employer—

(i)

conducted adequate recruitment before filing the petition; and

(ii)

was unsuccessful in locating sufficient numbers of willing and qualified United States workers for the job for which the H–2C workers are sought.

(B)

The recruitment requirement under subparagraph (A) is satisfied if the employer places a local job order with the State workforce agency serving each place of employment, except that nothing in this subparagraph shall require the employer to file an interstate job order under section 653 of title 20, Code of Federal Regulations. The State workforce agency shall post the job order on its official agency website for a minimum of 30 days and not later than 3 days after receipt using the employment statistics system authorized under section 15 of the Wagner-Peyser Act (29 U.S.C. 49l–2). The Secretary of Labor shall include links to the official Web sites of all State workforce agencies on a single webpage of the official Web site of the Department of Labor.

(C)

The requirement to recruit United States workers for a job shall terminate on the first day that work begins for the H–2C workers.

(6)

The employer has offered or will offer the job for which the H–2C workers are sought to any eligible United States workers who—

(A)

apply;

(B)

are qualified for the job; and

(C)

will be available at the time, at each place, and for the duration, of need.

This requirement shall not apply to United States workers who apply for the job on or after the first day that work begins for the H–2C workers.

(7)

If the job for which the H–2C workers are sought is not covered by State workers’ compensation law, the employer will provide, at no cost to the workers unless State law provides otherwise, insurance covering injury and disease arising out of, and in the course of, the workers’ employment, which will provide benefits at least equal to those provided under the State workers compensation law for comparable employment.

(8)

The job that is the subject of the petition is not vacant because the former workers in that job are on strike or locked out in the course of a labor dispute.

(c)

Not later than 1 working day after the date on which a petition under this section is filed, the employer shall make the petition available for public examination, at the employer’s principal place of employment.

(d)

(1)

The Secretary of Homeland Security shall maintain a list of the petitions filed under this subsection, which shall—

(A)

be sorted by employer; and

(B)

include the number of H–2C workers sought, the wage rate, the period of employment, each place of employment, and the date of need for each alien.

(2)

The Secretary of Homeland Security shall make the list available for public examination.

(e)

(1)

For petitions filed and considered under this subsection—

(A)

the Secretary of Homeland Security may not require such petition to be filed more than 28 days before the first date the employer requires the labor or services of H–2C workers;

(B)

within the appropriate time period under subparagraph (C) or (D), the Secretary of Homeland Security shall—

(i)

approve the petition;

(ii)

reject the petition; or

(iii)

determine that the petition is incomplete or obviously inaccurate or that the employer has not complied with the requirements of subsection (b)(5)(A)(i) (which the Secretary can ascertain by verifying whether the employer has placed a local job order as provider for in subsection (b)(5)(B));

(C)

if the Secretary determines that the petition is incomplete or obviously inaccurate, or that the employer has not complied with the requirements of subsection (b)(5)(A)(i) (which the Secretary can ascertain by verifying whether the employer has placed a local job order as provider for in subsection (b)(5)(B)), the Secretary shall—

(i)

within 5 business days of receipt of the petition, notify the petitioner of the deficiencies to be corrected by means ensuring same or next day delivery; and

(ii)

within 5 business days of receipt of the corrected petition, approve or reject the petition and provide the petitioner with notice of such action by means ensuring same or next day delivery; and

(D)

if the Secretary does not determine that the petition is incomplete or obviously inaccurate, the Secretary shall not later than 10 business days after the date on which such petition was filed, either approve or reject the petition and provide the petitioner with notice of such action by means ensuring same or next day delivery.

(2)

By filing an H–2C petition, the petitioner and each employer (if the petitioner is an association that is a joint employer of workers who perform agricultural labor or services) consent to allow access to each place of employment to the Department of Agriculture and the Department of Homeland Security for the purpose of investigations and audits to determine compliance with the immigration laws (as defined in section 101(a)(17)).

(f)

(1)

If an association is a joint employer of workers who perform agricultural labor or services, H–2C workers may be transferred among its members to perform the agricultural labor or services on a temporary basis for which the petition was approved.

(2)

(A)

If an individual member of an association that is a joint employer commits a violation described in paragraph (2) or (3) of subsection (i) or subsection (j)(1), the Secretary of Agriculture shall invoke penalties pursuant to subsections (i) and (j) against only that member of the association unless the Secretary of Agriculture determines that the association participated in, had knowledge of, or had reason to know of the violation.

(B)

If an association that is a joint employer commits a violation described in subsections (i)(2) and (3) or (j)(1), the Secretary of Agriculture shall invoke penalties pursuant to subsections (i) and (j) against only the association and not any individual members of the association, unless the Secretary determines that the member participated in the violation.

(g)

The Secretary of Homeland Security shall promulgate regulations to provide for an expedited procedure for the review of a denial of a petition under this section by the Secretary. At the petitioner’s request, the review shall include a de novo administrative hearing at which new evidence may be introduced.

(h)

The Secretary of Homeland Security shall require, as a condition of approving the petition, the payment of a fee to recover the reasonable cost of processing the petition.

(i)

(1)

(2)

If the Secretary of Agriculture finds, after notice and opportunity for a hearing, a failure to fulfill an attestation required by this subsection, or a material misrepresentation of a material fact in a petition under this subsection, the Secretary—

(A)

may impose such administrative remedies (including civil money penalties in an amount not to exceed $1,000 per violation) as the Secretary determines to be appropriate; and

(B)

may disqualify the employer from the employment of H–2C workers for a period of 1 year.

(3)

If the Secretary of Agriculture finds, after notice and opportunity for a hearing, a willful failure to fulfill an attestation required by this subsection, or a willful misrepresentation of a material fact in a petition under this subsection, the Secretary—

(A)

may impose such administrative remedies (including civil money penalties in an amount not to exceed $5,000 per violation, or not to exceed $15,000 per violation if in the course of such failure or misrepresentation the employer displaced one or more United States workers employed by the employer during the period of employment of H–2C workers or during the 30-day period immediately preceding such period of employment) in the job the H–2C workers are performing as the Secretary determines to be appropriate;

(B)

may disqualify the employer from the employment of H–2C workers for a period of 2 years;

(C)

may, for a subsequent failure to fulfill an attestation required by this subsection, or a misrepresentation of a material fact in a petition under this subsection, disqualify the employer from the employment of H–2C workers for a period of 5 years; and

(D)

may, for a subsequent willful failure to fulfill an attestation required by this subsection, or a willful misrepresentation of a material fact in a petition under this subsection, permanently disqualify the employer from the employment of H–2C workers.

(j)

(1)

If the Secretary of Agriculture finds, after notice and opportunity for a hearing, that the employer has failed to provide the benefits, wages, and working conditions that the employer has attested that it would provide under this subsection, the Secretary shall require payment of back wages, or such other required benefits, due any United States workers or H–2C workers employed by the employer.

(2)

The back wages or other required benefits described in paragraph (1)—

(A)

shall be equal to the difference between the amount that should have been paid and the amount that was paid to such workers; and

(B)

shall be distributed to the workers to whom such wages or benefits are due.

(k)

(1)

(A)

Each employer seeking to hire United States workers for the job the H–2C workers will perform shall offer such United States workers not less than the same benefits, wages, and working conditions that the employer will provide to the H–2C workers. No job offer may impose on United States workers any restrictions or obligations which will not be imposed on H–2C workers.

(B)

Every interpretation and determination made under this section or under any other law, regulation, or interpretative provision regarding the nature, scope, and timing of the provision of these and any other benefits, wages, and other terms and conditions of employment shall be made so that—

(i)

the services of workers to their employers and the employment opportunities afforded to workers by the employers, including those employment opportunities that require United States workers or H–2C workers to travel or relocate in order to accept or perform employment—

(I)

mutually benefit such workers, as well as their families, and employers; and

(II)

principally benefit neither employer nor employee; and

(ii)

employment opportunities within the United States benefit the United States economy.

(2)

(A)

Each employer petitioning for H–2C workers under this subsection (other than in the case of workers who will perform agricultural labor or services consisting of meat or poultry processing) will offer the H–2C workers, during the period of authorized employment as H–2C workers, wages that are at least the greatest of—

(i)

the applicable State or local minimum wage;

(ii)

115 percent of the Federal minimum wage, or 150 percent of the Federal minimum wage; or

(iii)

the actual wage level paid by the employer to all other individuals in the job.

(B)

(i)

An employer can utilize a piece rate or other alternative wage payment system so long as the employer guarantees each worker a wage rate that equals or exceeds the amount required under subparagraph (A) for the total hours worked in each pay period. Compensation from a piece rate or other alternative wage payment system shall include time spent during rest breaks, moving from job to job, clean up, or any other nonproductive time, provided that such time does not exceed 20 percent of the total hours in the work day.

(ii)

Each employer petitioning for H–2C workers under this subsection who will perform agricultural labor or services consisting of meat or poultry processing will offer the H–2C workers, during the period of authorized employment as H–2C workers, wages that are at least the greatest of—

(I)

the applicable State or local minimum wage;

(II)

115 percent of the Federal minimum wage;

(III)

the prevailing wage level for the occupational classification in the area of employment; or

(IV)

the actual wage level paid by the employer to all other individuals in the job.

(3)

(A)

(i)

Each employer petitioning for workers under this subsection shall guarantee to offer the H–2C workers and United States workers performing the same job employment for the hourly equivalent of not less than 50 percent of the work hours set forth in the work contract.

(ii)

If an employer affords the United States workers or the H–2C workers less employment than that required under this subparagraph, the employer shall pay such workers the amount which the workers would have earned if the workers had worked for the guaranteed number of hours.

(B)

Any hours which workers fail to work, up to a maximum of the number of hours specified in the work contract for a work day, when the workers have been offered an opportunity to do so, and all hours of work actually performed (including voluntary work in excess of the number of hours specified in the work contract in a work day) may be counted by the employer in calculating whether the period of guaranteed employment has been met.

(C)

If the workers abandon employment before the end of the work contract period, or are terminated for cause, the workers are not entitled to the 50 percent guarantee described in subparagraph (A).

(D)

(i)

If, before the expiration of the period of employment specified in the work contract, the services of the workers are no longer required due to any form of natural disaster, including flood, hurricane, freeze, earthquake, fire, drought, plant or animal disease, pest infestation, regulatory action, or any other reason beyond the control of the employer before the employment guarantee in subparagraph (A) is fulfilled, the employer may terminate the workers’ employment.

(ii)

If a worker’s employment is terminated under clause (i), the employer shall—

(I)

fulfill the employment guarantee in subparagraph (A) for the work days that have elapsed during the period beginning on the first work day and ending on the date on which such employment is terminated;

(II)

make efforts to transfer the worker to other comparable employment acceptable to the worker; and

(III)

not later than 72 hours after termination, notify the Secretary of Agriculture of such termination and stating the nature of the contract impossibility.

(l)

The Department of Agriculture and the Department of Homeland Security shall not delegate their investigatory, enforcement, or administrative functions relating to this section or section 218B to other agencies or departments of the Federal Government.

(m)

Except in the case of an imminent threat to health or safety, any personnel from a Federal agency or Federal grantee seeking to determine the compliance of an employer with the requirements of this section or section 218B shall, when visiting such employer’s place of employment, make their presence known to the employer and sign-in in accordance with reasonable bio-security protocols before proceeding to any other area of the place of employment.

(n)

(1)

The maximum continuous period of authorized status as an H–2C worker (including any extensions) is 18 months for workers employed in a job that is of a temporary or seasonal nature. For H–2C workers employed in a job that is not of a temporary or seasonal nature, the initial maximum continuous period of authorized status is 36 months and subsequent maximum continuous periods of authorized status are 18 months.

(2)

In the case of H–2C workers who were employed in a job of a temporary or seasonal nature whose maximum continuous period of authorized status as H–2C workers (including any extensions) have expired, the aliens may not again be eligible to be H–2C workers until they remain outside the United States for a continuous period equal to at least 1/12 of the duration of their previous period of authorized status an H–2C workers. For H–2C workers who were employed in a job not of a temporary or seasonal nature whose maximum continuous period of authorized status as H–2C workers (including any extensions) have expired, the aliens may not again be eligible to be H–2C workers until they remain outside the United States for a continuous period equal to at least the lesser of 1/12 of the duration of their previous period of authorized status as H–2C workers or 45 days.

(3)

(A)

The Secretary of Homeland Security shall deduct absences from the United States that take place during an H–2C worker’s period of authorized status from the period that the alien is required to remain outside the United States under paragraph (2), if the alien or the alien’s employer requests such a deduction, and provides clear and convincing proof that the alien qualifies for such a deduction. Such proof shall consist of evidence such as arrival and departure records, copies of tax returns, and records of employment abroad.

(B)

There is no maximum continuous period of authorized status as set forth in paragraph (1) or a requirement to remain outside the United States as set forth in paragraph (2) for H–2C workers employed as a sheepherder, goatherder, in the range production of livestock, or who return to the workers’ permanent residence outside the United States each day.

(o)

(1)

In addition to the maximum continuous period of authorized status, workers’ authorized period of admission shall include—

(A)

a period of not more than 7 days prior to the beginning of authorized employment as H–2C workers for the purpose of travel to the place of employment; and

(B)

a period of not more than 14 days after the conclusion of their authorized employment for the purpose of departure from the United States or a period of not more than 30 days following the employment for the purpose of seeking a subsequent offer of employment by an employer pursuant to a petition under this section (or pursuant to at-will employment under section 218B during such times as that section is in effect) if they have not reached their maximum continuous period of authorized employment under subsection (n) (subject to the exceptions in subsection (n)(3)) unless they accept subsequent offers of employment as H–2C workers or are otherwise lawfully present.

(2)

H–2C workers who do not depart the United States within the periods referred to in paragraph (1) will be considered to have failed to maintain nonimmigrant status as H–2C workers and shall be subject to removal under section 237(a)(1)(C)(i). Such aliens shall be considered to be inadmissible pursuant to section 212(a)(9)(B)(i) for having been unlawfully present, with the aliens considered to have been unlawfully present for 181 days as of the 15th day following their period of employment for the purpose of departure or as of the 31st day following their period of employment for the purpose of seeking subsequent offers of employment.

(p)

(1)

Not later than 72 hours after an employer learns of the abandonment of employment by H–2C workers before the conclusion of their work contracts, the employer shall notify the Secretary of Agriculture and the Secretary of Homeland Security of such abandonment.

(2)

An employer may designate eligible aliens to replace H–2C workers who abandon employment notwithstanding the numerical limitation found in section 214(g)(1)(C).

(q)

(1)

In the case of an alien described in paragraph (4), the Secretary of Homeland Security shall waive the ground of inadmissibility under paragraphs (6)(C) and (9)(B) of section 212(a) with respect to conduct that occurred prior to the alien first receiving status as an H–2C worker, solely in order to provide the alien with such status.

(2)

An alien described in this paragraph is an alien who—

(A)

was unlawfully present in the United States on October 23, 2017;

(B)

performed agricultural labor or services in the United States for at least 5.75 hours during each of at least 180 days during the 2-year period ending on October 23, 2017; and

(C)

has departed the United States within 180 days of the issuance of final rules carrying out the AG Act, and remains outside the United States.

(r)

(1)

There is established in the Treasury of the United States a trust fund (in this section referred to as the Trust Fund) for the purpose of providing a monetary incentive for H–2C workers to return to their country of origin upon expiration of their visas.

(2)

(A)

Notwithstanding the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.) and State and local wage laws, all employers of H–2C workers shall withhold from the wages of all H–2C workers other than those employed as sheepherders, goatherders, in the range production of livestock, or who return to the their permanent residence outside the United States each day, an amount equivalent to 10 percent of the gross wages of each worker in each pay period and, on behalf of each worker, transfer such withheld amount to the Trust Fund.

(B)

Employers of H–2C workers employed in jobs that are not of a temporary or seasonal nature, other than those employed as a sheepherder, goatherder, or in the range production of livestock, shall also pay into the Trust Fund an amount equivalent to the Federal tax on the wages paid to H–2C workers that the employer would be obligated to pay under chapters 21 and 23 of the Internal Revenue Code of 1986 had the H–2C workers been subject to such chapters.

(3)

Amounts paid into the Trust Fund on behalf of an H–2C worker, and held pursuant to paragraph (2)(A) and interest earned thereon, shall be transferred from the Trust Fund to the Secretary of Homeland Security, who shall distribute them to the worker if the worker—

(A)

applies to the Secretary of Homeland Security (or the designee of the Secretary) for payment within 120 days of the expiration of the alien’s last authorized stay in the United States as an H–2C worker, for which they seek amounts from the Trust Fund;

(B)

establishes to the satisfaction of the Secretary of Homeland Security that they have complied with the terms and conditions of the H–2C program;

(C)

once approved by the Secretary of Homeland Security for payment, physically appears at a United States embassy or consulate in the worker’s home country; and

(D)

establishes their identity to the satisfaction of the Secretary of Homeland Security.

(4)

The amounts paid into the Trust Fund and held pursuant to paragraph (2)(B), and interest earned thereon, shall be distributed annually to the Secretary of Agriculture and the Secretary of Homeland Security in amounts proportionate to the expenses incurred by such officials in the administration and enforcement of the terms of the H–2C program.

(5)

Notwithstanding any other provision of law, amounts paid into the Trust Fund under paragraph (2), and interest earned thereon, that are not needed to carry out paragraphs (3) and (4) shall, to the extent provided in advance in appropriations Acts, be made available until expended without fiscal year limitation to the Secretary of Homeland Security to apprehend, detain, and remove aliens inadmissible to or deportable from the United States.

(6)

(A)

It shall be the duty of the Secretary of the Treasury to invest such portion of the Trust Fund as is not, in the Secretary’s judgment, required to meet current withdrawals. Such investments may be made only in interest-bearing obligations of the United States or in obligations guaranteed as to both principal and interest by the United States.

(B)

The interest on, and the proceeds from the sale or redemption of, any obligations held in the Trust Fund shall be credited to and form a part of the Trust Fund.

(C)

It shall be the duty of the Secretary of the Treasury to hold the Trust Fund, and (after consultation with the Secretary of Homeland Security) to report to the Congress each year on the financial condition and the results of the operations of the Trust Fund during the preceding fiscal year and on its expected condition and operations during the next fiscal year. Such report shall be printed as both a House and a Senate document of the session of the Congress in which the report is made.

(s)

(1)

The Secretary of Homeland Security shall permit an employer in a Special Procedures Industry that does not operate at a single fixed place of employment to provide, as part of its petition, a list of places of employment, which—

(A)

may include an itinerary; and

(B)

may be subsequently amended at any time by the employer, after notice to the Secretary.

(2)

Notwithstanding subsection (k)(2), the Secretary of Agriculture may establish monthly, weekly, or biweekly wage rates for occupations in a Special Procedures Industry for a State or other geographic area. For an employer in a Special Procedures Industry that typically pays a monthly wage, the Secretary shall require that H–2C workers be paid not less frequently than monthly and at a rate no less than the legally required monthly cash wage in an amount as re-determined annually by the Secretary.

(3)

An employer engaged in the commercial beekeeping or pollination services industry may require that job applicants be free from bee-related allergies, including allergies to pollen and bee venom.

(b)

Chapter 2 of title II of the Immigration and Nationality Act (8 U.S.C. 1181 et seq.) is amended by inserting after section 218A (as inserted by subsection (a) of this section) the following:

218B.

(a)

An employer that is designated as a registered agricultural employer pursuant to subsection (c) may employ aliens as H–2C workers. However, an H–2C worker may only perform labor or services pursuant to this section if the worker is already lawfully present in the United States as an H–2C worker, having been admitted or otherwise provided nonimmigrant status pursuant to section 218A, and has completed the period of employment specified in the job offer the worker accepted pursuant to section 218A or the employer has terminated the worker’s employment pursuant to section 218A(k)(3)(D)(i). An H–2C worker who abandons the employment which was the basis for admission or status pursuant to section 218A may not perform labor or services pursuant to this section until the worker has returned to their home country, been readmitted as an H–2C worker pursuant to section 218A and has completed the period of employment specified in the job offer the worker accepted pursuant to section 218A or the employer has terminated the worker’s employment pursuant to section 218A(k)(3)(D)(i).

(b)

H–2C workers performing at-will labor or services for a registered agricultural employer are subject to the period of admission, limitation of stay in status, and requirement to remain outside the United States contained in subsections (o) and (n) of section 218A, except that subsection (n)(3)(A) does not apply.

(c)

The Secretary of Agriculture shall establish a process to accept and adjudicate applications by employers to be designated as registered agricultural employers. The Secretary shall require, as a condition of approving the application, the payment of a fee to recover the reasonable cost of processing the application. The Secretary shall designate an employer as a registered agricultural employer if the Secretary determines that the employer—

(1)

employs (or plans to employ) individuals who perform agricultural labor or services;

(2)

has not been subject to debarment from receiving temporary agricultural labor certifications pursuant to section 101(a)(15)(H)(ii)(a) within the last three years;

(3)

has not been subject to disqualification from the employment of H–2C workers within the last five years;

(4)

agrees to, if employing H–2C workers pursuant to this section, fulfill the attestations contained in section 218A(b) as if it had submitted a petition making those attestations (excluding subsection (k)(3) of such section) and not to employ H–2C workers who have reached their maximum continuous period of authorized status under section 218A(n) (subject to the exceptions contained in section 218A(n)(3)) or if the workers have complied with the terms of section 218A(n)(2); and

(5)

agrees to notify the Secretary of Agriculture and the Secretary of Homeland Security each time it employs H–2C workers pursuant to this section within 72 hours of the commencement of employment and within 72 hours of the cessation of employment.

(d)

An employer’s designation as a registered agricultural employer shall be valid for 3 years, and the Secretary may extend such designation for additional 3-year terms upon the reapplication of the employer. The Secretary shall revoke a designation before the expiration of its 3-year term if the employer is subject to disqualification from the employment of H–2C workers subsequent to being designated as a registered agricultural employer.

(e)

The Secretary of Agriculture shall be responsible for conducting investigations and audits, including random audits, of employers to ensure compliance with the requirements of this section. All monetary fines levied against employers shall be paid to the Department of Agriculture and used to enhance the Department of Agriculture’s investigatory and audit abilities to ensure compliance by employers with their obligations under this section and section 218A. The Secretary of Agriculture’s enforcement powers and an employer’s liability described in subsections (i) through (j) of section 218A are applicable to employers employing H–2C workers pursuant to this section.

(c)

Section 101(a)(15)(H) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)) is amended by striking him; at the end and inserting him, except that no spouse or child may be admitted under clause (ii)(c);.

(d)

Section 214(g)(1) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(1)) is amended—

(1)

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

(2)

in subparagraph (B), by striking the period at the end and inserting ; or; and

(3)

by adding at the end the following:

(C)

under section 101(a)(15)(H)(ii)(c)—

(i)

except as otherwise provided under this subparagraph, may not exceed 40,000 for aliens issued visas or otherwise provided nonimmigrant status under such section for the purpose of performing agricultural labor or services consisting or meat or poultry processing;

(ii)

except as otherwise provided under this subparagraph, may not exceed 410,000 for aliens issued visas or otherwise provided nonimmigrant status under such section for the purpose of performing agricultural labor or services other than agricultural labor or services consisting of meat or poultry processing;

(iii)

if the base allocation under clause (i) or (ii) is exhausted during any fiscal year, the base allocation under such clause for that and subsequent fiscal years shall be increased by the lesser of 10 percent or a percentage representing the number of petitioned-for aliens (as a percentage of the base allocation) who would be eligible to be issued visas or otherwise provided nonimmigrant status described in that clause during that fiscal year but for the base allocation being exhausted, and if the increased base allocation is itself exhausted during a subsequent fiscal year, the base allocation for that and subsequent fiscal years shall be further increased by the lesser of 10 percent or a percentage representing the number of petitioned-for aliens (as a percentage of the increased base allocation) who would be eligible to be issued visas or otherwise provided nonimmigrant status described in that clause during that fiscal year but for the increased base allocation being exhausted (subject to clause (iv));

(iv)

if the base allocation under clause (i) or (ii) is not exhausted during any fiscal year, the base allocation under such clause for subsequent fiscal years shall be decreased by the greater of 5 percent or a percentage representing the unutilized portion of the base allocation (as a percentage of the base allocation) during that fiscal year, and if in a subsequent fiscal year the decreased base allocation is itself not exhausted, the base allocation for fiscal years subsequent to that fiscal year shall be further decreased by the greater of 5 percent or a percentage representing the unutilized portion of the decreased base allocation (as a percentage of the decreased base allocation) during that fiscal year (subject to clause (iii) and except that the base allocations under clauses (ii) shall not fall below 410,000);

(v)

the numerical limitations under this subparagraph shall not apply to any alien—

(I)

who—

(aa)

was physically present in the United States on October 23, 2017; and

(bb)

performed agricultural labor or services in the United States for at least 5.75 hours during each of at least 180 days during the 2-year period ending on October 23, 2017; or

(II)

who has previously been issued a visa or otherwise provided nonimmigrant status pursuant to subclause (a) or (b) of section 101(a)(15)(H)(ii), but only to the extent that the alien is being petitioned for by an employer pursuant to section 218A(b) who previously employed the alien pursuant to subclause (a) or (b) of section 101(a)(15)(H)(ii) beginning no later than October 23, 2017.

(e)

Section 214(b) of the Immigration and Nationality Act (8 U.S.C. 1184(b)) is amended by striking section 101(a)(15)(H)(i) except subclause (b1) of such section and inserting clause (i), except subclause (b1), or (ii)(c) of section 101(a)(15)(H).

(f)

The table of contents for the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) is amended by inserting after the item relating to section 218 the following:

Sec. 218B. At-will employment of temporary H–2C workers.

2104.

Nonimmigrants having status under section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(c)) may not bring civil actions for damages against their employers, nor may any other attorneys or individuals bring civil actions for damages on behalf of such nonimmigrants against the nonimmigrants’ employers, unless at least 90 days prior to bringing an action a request has been made to the Federal Mediation and Conciliation Service to assist the parties in reaching a satisfactory resolution of all issues involving all parties to the dispute and mediation has been attempted.

2105.

Section 3(8)(B)(ii) of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1802(8)(B)(ii)) is amended by striking under sections 101(a)(15)(H)(ii)(a) and 214(c) of the Immigration and Nationality Act. and inserting under subclauses (a) and (c) of section 101(a)(15)(H)(ii), and section 214(c), of the Immigration and Nationality Act..

2106.

(a)

H–2C workers may, as a condition of employment with an employer, be subject to mandatory binding arbitration and mediation of any grievance relating to the employment relationship. An employer shall provide any such workers with notice of such condition of employment at the time it makes job offers.

(b)

Any cost associated with such arbitration and mediation process shall be equally divided between the employer and the H–2C workers, except that each party shall be responsible for the cost of its own counsel, if any.

(c)

As used in this section:

(1)

The term condition of employment means a term, condition, obligation, or requirement that is part of the job offer, such as the term of employment, job responsibilities, employee conduct standards, and the grievance resolution process, and to which applicants or prospective H–2C workers must consent or accept in order to be hired for the position.

(2)

The term H–2C worker means a nonimmigrant described in section 218A(a)(5) of the Immigration and Nationality Act, as added by this title.

2107.

(a)

H–2C workers (as defined in section 218A(a)(5) of the Immigration and Nationality Act, as added by this title)—

(1)

are not entitled to the premium assistance tax credit authorized under section 36B of the Internal Revenue Code of 1986 and shall be subject to the rules applicable to individuals who are not lawfully present set forth in subsection (e) of such section; and

(2)

shall be subject to the rules applicable to individuals who are not lawfully present set forth in section 1402(e) of the Patient Protection and Affordable Care Act (42 U.S.C. 18071(e)).

(b)

H–2C workers (as defined in section 218A(a)(5) of the Immigration and Nationality Act, as added by this title), shall not be allowed any credit under sections 24 and 32 of the Internal Revenue Code of 1986. In the case of a joint return, no credit shall be allowed under either such section if both spouses are such workers or aliens.

(c)

Notwithstanding the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.) and State and local wage laws, not later than 21 days after being issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(c)), an alien must obtain health insurance coverage accepted in their State or States of employment and residence for the period of employment specified in section 218A(b)(1) of the Immigration and Nationality Act. H–2C workers under sections 218A or 218B of the Immigration and Nationality Act who do not obtain and maintain the required insurance coverage will be considered to have failed to maintain nonimmigrant status under section 101(a)(15)(H)(ii)(c) of the Immigration and Nationality Act and shall be subject to removal under section 237(a)(1)(C)(i) of the Immigration and Nationality Act (8 U.S.C. 1227(a)(1)(C)(i)).

2108.

(a)

The Secretary of Agriculture shall conduct a study on the feasibility of establishing an agricultural worker employment pool and an electronic Internet-based portal to assist H–2C workers (as such term is defined in section 218A of the Immigration and Nationality Act), prospective H–2C workers, and employers to identify job opportunities in the H–2C program and willing, able and available workers for the program, respectively.

(b)

The study required under subsection (a) shall include an analysis of—

(1)

the cost of creating such a pool and portal;

(2)

potential funding sources or mechanisms to support the creation and maintenance of the pool and portal;

(3)

with respect to H–2C workers and prospective H–2C workers in the pool, the data that would be relevant for employers;

(4)

the merits of assisting H–2C workers and employers in identifying job opportunities and willing, able, and available workers, respectively; and

(5)

other beneficial uses for such a pool and portal.

(c)

Not later than 1 year after the date of the enactment of this Act, the Secretary of Agriculture shall submit to the Committees on the Judiciary of the House of Representatives and the Senate a report containing the results of the study required under subsection (a).

2109.

Section 212(p) of the Immigration and Nationality Act (8 U.S.C. 1182(p)) is amended—

(1)

in paragraph (1), by inserting after subsections (a)(5)(A), (n)(1)(A)(i)(II), and (t)(1)(A)(i)(II) the following: of this section and section 218A(k)(2)(B)(ii) ; and

(2)

in paragraph (3), by inserting after subsections (a)(5)(A), (n)(1)(A)(i)(II), and (t)(1)(A)(i)(II) the following: of this section and section 218A(k)(2)(B)(ii) .

2110.

(a)

(1)

Sections 2102 and 2104 through 2106 of this title, subsections (a) and (c) through (f) of section 2103 of this title, and the amendments made by the sections, shall take effect on the date on which the Secretary issues the rules under paragraph (3), and the Secretary of Homeland Security shall accept petitions pursuant to section 218A of the Immigration and Nationality Act, as inserted by this Act, beginning no later than that date. Sections 2107 and 2109 of this title shall take effect on the date of the enactment of this Act.

(2)

Section 2103(b) of this title and the amendments made by that subsection shall take effect when—

(A)

it becomes unlawful for all persons or other entities to hire, or to recruit or refer for a fee, for employment in the United States an individual (as provided in section 274A(a)(1) of the Immigration and Nationality Act (8 U.S.C. 1324a(a)(1))) without participating in the E-Verify Program described in section 403(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) or an employment eligibility verification system patterned on such program’s verification system; and

(B)

the E-Verify Program responds to inquiries made by such persons or entities described in subparagraph (A) by providing confirmation, tentative nonconfirmation, and final nonconfirmation of an individual’s identity and employment eligibility in such a way that indicates whether the individual is eligible to be employed in all occupations or only to perform agricultural labor or services under sections 218A and 219B of the Immigration and Nationality Act, as added by section 2103 of this title, and if the latter, whether the nonimmigrant would be in compliance with their maximum continuous period of authorized status and requirement to remain outside the United States under section 218A(n) of such Act, as added by section 2103(a) of this title, and on what date the alien would cease to be in compliance with their maximum continuous period of authorized status.

(3)

Notwithstanding any other provision of law, not later than the first day of the seventh month that begins after the date of the enactment of this Act, the Secretary of Homeland Security shall issue final rules, on an interim or other basis, to carry out this title.

(b)

(1)

The Department of Labor H–2A program regulations published at 73 Federal Register 77110 et seq. (2008) shall be in force for all petitions approved under sections 101(a)(15)(H)(ii)(a) and 218 of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(h)(ii)(a); 8 U.S.C. 1188) beginning on the date of the enactment of this Act, except that the following, as in effect on such date, shall remain in effect, and, to the extent that any rule published at 73 Federal Register 77110 et seq. is in conflict, such rule shall have no force and effect:

(A)

Paragraph (a) and subparagraphs (1) and (3) of paragraph (b) of section 655.200 of title 20, Code of Federal Regulations.

(B)

Section 655.201 of title 20, Code of Federal Regulations, except the paragraphs entitled Production of Livestock and Range.

(C)

Paragraphs (c), (d) and (e) of section 655.210 of title 20, Code of Federal Regulations.

(D)

Section 655.230 of title 20, Code of Federal Regulations.

(E)

Section 655.235 of title 20, Code of Federal Regulations.

(F)

The Special Procedures Labor Certification Process for Employers in the Itinerant Animal Shearing Industry under the H–2A Program in effect under the Training and Employment Guidance Letter No. 17–06, Change 1, Attachment B, Section II, with an effective date of October 1, 2011.

(2)

Beginning on the date on which employers can file petitions pursuant to section 218A of the Immigration and Nationality Act, as added by section 2103(a) of this title, no new petitions under sections 101(a)(15)(H)(ii)(a) and 218 of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a); 8 U.S.C. 1188) shall be accepted.

2111.

(a)

Not later than 1 year after the first day on which employers can file petitions pursuant to section 218A of the Immigration and Nationality Act, as added by section 2103(a) of this title, the Secretary of Homeland Security, in consultation with the Secretary of Agriculture, shall submit to the Committees on the Judiciary of the House of Representatives and the Senate a report on compliance by H–2C workers with the requirements of this title and the Immigration and Nationality Act, as amended by this title. In the case of a violation of a term or condition of the temporary agricultural work visa program established by this title, the report shall identify the provision or provisions of law violated.

(b)

As used in this section, the term H–2C worker means a nonimmigrant described in section 218A(a)(4) of the Immigration and Nationality Act, as added by section 2103(a) of this title.

III

3101.

(a)

Section 222(g) of the Immigration and Nationality Act (8 U.S.C. 1202(g)) is amended—

(1)

in paragraph (1)—

(A)

by striking Attorney General and inserting Secretary; and

(B)

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

(2)

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

(b)

The amendment made by subsection (a) shall take effect on the date of the enactment of this Act and shall apply to a visa issued before, on, or after such date.

3102.

(a)

Section 222(f) of the Immigration and Nationality Act (8 U.S.C. 1202(f)(2)) is amended—

(1)

by striking issuance or refusal and inserting issuance, refusal, or revocation;

(2)

in paragraph (2), in the matter preceding subparagraph (A), by striking and on the basis of reciprocity and all that follows and inserting the following may provide to a foreign government information in a Department of State computerized visa database and, when necessary and appropriate, other records covered by this section related to information in such database—;

(3)

in paragraph (2)(A)—

(A)

by inserting at the beginning on the basis of reciprocity,;

(B)

by inserting (i) after for the purpose of; and

(C)

by striking illicit weapons; or and inserting illicit weapons, or (ii) determining a person’s deportability or eligibility for a visa, admission, or other immigration benefit;;

(4)

in paragraph (2)(B)—

(A)

by inserting at the beginning on the basis of reciprocity,;

(B)

by striking in the database and inserting such database;

(C)

by striking for the purposes and inserting for one of the purposes; and

(D)

by striking or to deny visas to persons who would be inadmissible to the United States. and inserting ; or; and

(5)

in paragraph (2), by adding at the end the following:

(C)

with regard to any or all aliens in the database specified data elements from each record, if the Secretary of State determines that it is in the national interest to provide such information to a foreign government.

(b)

The amendments made by subsection (a) shall take effect 60 days after the date of the enactment of this Act.

3103.

Section 222(h) of the Immigration and Nationality Act (8 U.S.C. 1202(h)(1)(B)) is amended—

(1)

in paragraph (1)(C), by inserting , in consultation with the Secretary of Homeland Security, after if the Secretary;

(2)

in paragraph (1)(C)(i), by inserting , where such national interest shall not include facilitation of travel of foreign nationals to the United States, reduction of visa application processing times, or the allocation of consular resources before the semicolon at the end; and

(3)

in paragraph (2)—

(A)

by striking or at the end of subparagraph (E);

(B)

by striking the period at the end of subparagraph (F) and inserting ; or; and

(C)

by adding at the end the following:

(G)

is an individual—

(i)

determined to be in a class of aliens determined by the Secretary of Homeland Security to be threats to national security;

(ii)

identified by the Secretary of Homeland Security as a person of concern; or

(iii)

applying for a visa in a visa category with respect to which the Secretary of Homeland Security has determined that a waiver of the visa interview would create a high risk of degradation of visa program integrity.

3104.

(a)

Section 222(h)(1) of the Immigration and Nationality Act (8 U.S.C. 1202(h)(1)) is amended by inserting the alien is determined by the Secretary of State to be ineligible for a visa based upon review of the application or after unless.

(b)

Not later than 90 days after the date of the enactment of this Act, the Secretary of State shall issue guidance to consular officers on the standards and processes for implementing the authority to deny visa applications without interview in cases where the alien is determined by the Secretary of State to be ineligible for a visa based upon review of the application.

(c)

Not less frequently than once each quarter, the Secretary of State shall submit to the Congress a report on the denial of visa applications without interview, including—

(1)

the number of such denials; and

(2)

a post-by-post breakdown of such denials.

3105.

(a)

(1)

Section 428 of the Homeland Security Act of 2002 (6 U.S.C. 236) is amended by striking subsections (b) and (c) and inserting the following:

(b)

(1)

Notwithstanding section 104(a) of the Immigration and Nationality Act (8 U.S.C. 1104(a)) or any other provision of law, and except as provided in subsection (c) and except for the authority of the Secretary of State under subparagraphs (A) and (G) of section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)), the Secretary—

(A)

shall have exclusive authority to issue regulations, establish policy, and administer and enforce the provisions of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) and all other immigration or nationality laws relating to the functions of consular officers of the United States in connection with the granting and refusal of a visa; and

(B)

may refuse or revoke any visa to any alien or class of aliens if the Secretary, or designee, determines that such refusal or revocation is necessary or advisable in the security or foreign policy interests of the United States.

(2)

The revocation of any visa under paragraph (1)(B)—

(A)

shall take effect immediately; and

(B)

shall automatically cancel any other valid visa that is in the alien’s possession.

(3)

Notwithstanding any other provision of law, including section 2241 of title 28, United States Code, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to review a decision by the Secretary of Homeland Security to refuse or revoke a visa, and no court shall have jurisdiction to hear any claim arising from, or any challenge to, such a refusal or revocation.

(c)

(1)

The Secretary of State may direct a consular officer to refuse a visa requested by an alien if the Secretary of State determines such refusal to be necessary or advisable in the security or foreign policy interests of the United States.

(2)

No decision by the Secretary of State to approve a visa may override a decision by the Secretary of Homeland Security under subsection (b).

(2)

Section 221(i) of the Immigration and Nationality Act (8 U.S.C. 1201(i)) is amended by striking subsection, except in the context of a removal proceeding if such revocation provides the sole ground for removal under section 237(a)(1)(B). and inserting subsection..

(3)

Section 237(a)(1)(B) of the Immigration and Nationality Act (8 U.S.C. 1227(a)(1)(B)) is amended by striking under section 221(i).

(4)

The amendment made by paragraph (1) shall take effect on the date of the enactment of this Act and shall apply to visa refusals and revocations occurring before, on, or after such date.

(b)

Section 428(a) of the Homeland Security Act of 2002 (6 U.S.C. 236(a)) is amended—

(1)

by striking subsection and inserting section; and

(2)

by striking consular office and inserting consular officer.

3106.

(a)

Chapter 2 of title II of the Immigration and Nationality Act (8 U.S.C. 1181 et seq.) is amended by inserting after section 211 the following:

211A.

(a)

(1)

No petition or application filed with the Secretary of Homeland Security or with a consular officer relating to the issuance of a visa or to the admission of an alien to the United States as an immigrant or as a nonimmigrant may be approved unless the petition or application is signed by each party required to sign such petition or application.

(2)

Except as may be otherwise prescribed by regulations, each application for an immigrant visa shall be signed by the applicant in the presence of the consular officer, and verified by the oath of the applicant administered by the consular officer.

(b)

No petition or application filed with the Secretary of Homeland Security or with a consular officer relating to the issuance of a visa or to the admission of an alien to the United States as an immigrant or as a nonimmigrant may be approved unless each applicable portion of the petition or application has been completed.

(c)

No document submitted in support of a petition or application for a nonimmigrant or immigrant visa may be accepted by a consular officer if such document contains information in a foreign language, unless such document is accompanied by a full English translation, which the translator has certified as complete and accurate, and by the translator’s certification that he or she is competent to translate from the foreign language into English.

(d)

In the case that the Secretary of Homeland Security or a consular officer requests any additional information relating to a petition or application filed with the Secretary or consular officer relating to the issuance of a visa or to the admission of an alien to the United States as an immigrant or as a nonimmigrant, such petition or application may not be approved unless all of the additional information requested is provided, or is shown to have been previously provided, in complete form and is provided on or before any reasonably established deadline included in the request.

(b)

The table of contents for the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) is amended by inserting after the item relating to section 211 the following:

Sec. 211A. Petition and application processing.

(c)

The amendments made by this section shall apply with respect to applications and petitions filed after the date of the enactment of this Act.

3107.

(a)

(1)

Not later than 180 days after the date of the enactment of this Act, the Secretary of Homeland Security shall submit to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate a plan for the use of advanced analytics software to ensure the proactive detection of fraud in immigration benefits applications and petitions and to ensure that any such applicant or petitioner does not pose a threat to national security.

(2)

Not later than 1 year after the date of the submission of the plan under paragraph (1), the Secretary of Homeland Security shall begin implementation of the plan.

(b)

(1)

The Secretary of Homeland Security, acting through the Fraud Detection and Nationality Security Directorate, shall complete a benefit fraud assessment by fiscal year 2021 on each of the following:

(A)

Petitions by VAWA self-petitioners (as such term is defined in section 101(a)(51) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(51)).

(B)

Applications or petitions for visas or status under section 101(a)(15)(K) of such Act or under section 201(b)(2) of such Act, in the case of spouses (8 U.S.C. 1101(a)(15)(K)).

(C)

Applications for visas or status under section 101(a)(27)(J) of such Act (8 U.S.C. 1101(a)(27)(J)).

(D)

Applications for visas or status under section 101(a)(15)(U) of such Act (8 U.S.C. 1101(a)(15)(U)).

(E)

Petitions for visas or status under section 101(a)(27)(C) of such Act (8 U.S.C. 1101(a)(27)(C)).

(F)

Applications for asylum under section 208 of such Act (8 U.S.C. 1158).

(G)

Applications for adjustment of status under section 209 of such Act (8 U.S.C. 1159).

(H)

Petitions for visas or status under section 201(b) of such Act (8 U.S.C. 1151(b)).

(2)

Not later than 30 days after the completion of each benefit fraud assessment under paragraph (1), the Secretary shall submit to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate such assessment and recommendations on how to reduce the occurrence of instances of fraud identified by the assessment.

3108.

Section 202(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(2)) is amended—

(1)

in subparagraph (C)(ii), by striking is the spouse, son, or daughter and inserting is or has been the spouse, son, or daughter; and

(2)

in subparagraph (H)(ii), by striking is the spouse, son, or daughter and inserting is or has been the spouse, son, or daughter.

3109.

Section 222(b) of the Immigration and Nationality Act (8 U.S.C. 1202(b)) is amended by inserting Where considered necessary, by the consular officer or immigration official, to establish family relationships, the immigrant shall provide DNA evidence of such a relationship in accordance with procedures established for submitting such evidence. The Secretary and the Secretary of State may, in consultation, issue regulations to require DNA evidence to establish family relationship, from applicants for certain visa classifications. after and a certified copy of all other records or documents concerning him or his case which may be required by the consular officer..

3110.

Subsection (a) of article V of section 217 of the National Crime Prevention and Privacy Compact Act of 1998 (34 U.S.C. 40316(V)(a)) is amended by inserting , except for diplomatic visa applications for which only full biographical information is required before the period at the end.

3111.

Section 221(b) of the Immigration and Nationality Act (8 U.S.C. 1201(b)) is amended by striking the first sentence and insert the following: Each alien who applies for a visa shall be registered in connection with his or her application and shall furnish copies of his or her photograph for such use as may be required by regulation..

3112.

Section 286(v)(2)(A) of the Immigration and Nationality Act (8 U.S.C. 1356(v)(2)(A)) is amended—

(1)

in the matter preceding clause (i), by striking at United States embassies and consulates abroad;

(2)

by amending clause (i) to read as follows:

(i)

to increase the number of diplomatic security personnel assigned exclusively or primarily to the function of preventing and detecting visa fraud;

; and

(3)

in clause (ii), by striking , including primarily fraud by applicants for visas described in subparagraph (H)(i), (H)(ii), or (L) of section 101(a)(15).

1101.

This title may be cited as the Legal Workforce Act.

1102.

(a)

Section 274A(b) of the Immigration and Nationality Act (8 U.S.C. 1324a(b)) is amended to read as follows:

(b)

(1)

The requirements referred to in paragraphs (1)(B) and (3) of subsection (a) are, in the case of a person or other entity hiring, recruiting, or referring an individual for employment in the United States, the following:

(A)

(i)

During the verification period (as defined in subparagraph (E)), the person or entity shall attest, under penalty of perjury and on a form, including electronic and telephonic formats, designated or established by the Secretary by regulation not later than 6 months after the date of the enactment of the Legal Workforce Act, that it has verified that the individual is not an unauthorized alien by—

(I)

obtaining from the individual the individual’s social security account number or United States passport number and recording the number on the form (if the individual claims to have been issued such a number), and, if the individual does not attest to United States nationality under subparagraph (B), obtaining such identification or authorization number established by the Department of Homeland Security for the alien as the Secretary of Homeland Security may specify, and recording such number on the form; and

(II)

examining—

(aa)

a document relating to the individual presenting it described in clause (ii); or

(bb)

a document relating to the individual presenting it described in clause (iii) and a document relating to the individual presenting it described in clause (iv).

(ii)

A document described in this subparagraph is an individual’s—

(I)

unexpired United States passport or passport card;

(II)

unexpired permanent resident card that contains a photograph;

(III)

unexpired employment authorization card that contains a photograph;

(IV)

in the case of a nonimmigrant alien authorized to work for a specific employer incident to status, a foreign passport with Form I–94 or Form I–94A, or other documentation as designated by the Secretary specifying the alien’s nonimmigrant status as long as the period of status has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified in the documentation;

(V)

passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I–94 or Form I–94A, or other documentation as designated by the Secretary, indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI; or

(VI)

other document designated by the Secretary of Homeland Security, if the document—

(aa)

contains a photograph of the individual and biometric identification data from the individual and such other personal identifying information relating to the individual as the Secretary of Homeland Security finds, by regulation, sufficient for purposes of this clause;

(bb)

is evidence of authorization of employment in the United States; and

(cc)

contains security features to make it resistant to tampering, counterfeiting, and fraudulent use.

(iii)

A document described in this subparagraph is an individual's social security account number card (other than such a card which specifies on the face that the issuance of the card does not authorize employment in the United States).

(iv)

A document described in this subparagraph is—

(I)

an individual's unexpired driver’s license or identification card if it was issued by a State or American Samoa and contains a photograph and information such as name, date of birth, gender, height, eye color, and address;

(II)

an individual's unexpired U.S. military identification card;

(III)

an individual's unexpired Native American tribal identification document issued by a tribal entity recognized by the Bureau of Indian Affairs; or

(IV)

in the case of an individual under 18 years of age, a parent or legal guardian’s attestation under penalty of law as to the identity and age of the individual.

(v)

If the Secretary of Homeland Security finds, by regulation, that any document described in clause (i), (ii), or (iii) as establishing employment authorization or identity does not reliably establish such authorization or identity or is being used fraudulently to an unacceptable degree, the Secretary may prohibit or place conditions on its use for purposes of this paragraph.

(vi)

Such attestation may be manifested by either a handwritten or electronic signature.

(B)

During the verification period (as defined in subparagraph (E)), the individual shall attest, under penalty of perjury on the form designated or established for purposes of subparagraph (A), that the individual is a citizen or national of the United States, an alien lawfully admitted for permanent residence, or an alien who is authorized under this Act or by the Secretary of Homeland Security to be hired, recruited, or referred for such employment. Such attestation may be manifested by either a handwritten or electronic signature. The individual shall also provide that individual’s social security account number or United States passport number (if the individual claims to have been issued such a number), and, if the individual does not attest to United States nationality under this subparagraph, such identification or authorization number established by the Department of Homeland Security for the alien as the Secretary may specify.

(C)

(i)

After completion of such form in accordance with subparagraphs (A) and (B), the person or entity shall—

(I)

retain a paper, microfiche, microfilm, or electronic version of the form and make it available for inspection by officers of the Department of Homeland Security, the Department of Justice, or the Department of Labor during a period beginning on the date of the recruiting or referral of the individual, or, in the case of the hiring of an individual, the date on which the verification is completed, and ending—

(aa)

in the case of the recruiting or referral of an individual, 3 years after the date of the recruiting or referral; and

(bb)

in the case of the hiring of an individual, the later of 3 years after the date the verification is completed or one year after the date the individual’s employment is terminated; and

(II)

during the verification period (as defined in subparagraph (E)), make an inquiry, as provided in subsection (d), using the verification system to seek verification of the identity and employment eligibility of an individual.

(ii)

(I)

If the person or other entity receives an appropriate confirmation of an individual’s identity and work eligibility under the verification system within the time period specified, the person or entity shall record on the form an appropriate code that is provided under the system and that indicates a final confirmation of such identity and work eligibility of the individual.

(II)

If the person or other entity receives a tentative nonconfirmation of an individual’s identity or work eligibility under the verification system within the time period specified, the person or entity shall so inform the individual for whom the verification is sought. If the individual does not contest the nonconfirmation within the time period specified, the nonconfirmation shall be considered final. The person or entity shall then record on the form an appropriate code which has been provided under the system to indicate a final nonconfirmation. If the individual does contest the nonconfirmation, the individual shall utilize the process for secondary verification provided under subsection (d). The nonconfirmation will remain tentative until a final confirmation or nonconfirmation is provided by the verification system within the time period specified. In no case shall an employer terminate employment of an individual because of a failure of the individual to have identity and work eligibility confirmed under this section until a nonconfirmation becomes final. Nothing in this clause shall apply to a termination of employment for any reason other than because of such a failure. In no case shall an employer rescind the offer of employment to an individual because of a failure of the individual to have identity and work eligibility confirmed under this subsection until a nonconfirmation becomes final. Nothing in this subclause shall apply to a rescission of the offer of employment for any reason other than because of such a failure.

(III)

If a final confirmation or nonconfirmation is provided by the verification system regarding an individual, the person or entity shall record on the form an appropriate code that is provided under the system and that indicates a confirmation or nonconfirmation of identity and work eligibility of the individual.

(IV)

If the person or other entity in good faith attempts to make an inquiry during the time period specified and the verification system has registered that not all inquiries were received during such time, the person or entity may make an inquiry in the first subsequent working day in which the verification system registers that it has received all inquiries. If the verification system cannot receive inquiries at all times during a day, the person or entity merely has to assert that the entity attempted to make the inquiry on that day for the previous sentence to apply to such an inquiry, and does not have to provide any additional proof concerning such inquiry.

(V)

(aa)

If the person or other entity has received a final nonconfirmation regarding an individual, the person or entity may terminate employment of the individual (or decline to recruit or refer the individual). If the person or entity does not terminate employment of the individual or proceeds to recruit or refer the individual, the person or entity shall notify the Secretary of Homeland Security of such fact through the verification system or in such other manner as the Secretary may specify.

(bb)

If the person or entity fails to provide notice with respect to an individual as required under item (aa), the failure is deemed to constitute a violation of subsection (a)(1)(A) with respect to that individual.

(VI)

If the person or other entity continues to employ (or to recruit or refer) an individual after receiving final nonconfirmation, a rebuttable presumption is created that the person or entity has violated subsection (a)(1)(A).

(D)

(i)

Except as provided in clause (iii), the provisions of this paragraph shall apply to a person or other entity hiring an individual for employment in the United States as follows:

(I)

With respect to employers having 10,000 or more employees in the United States on the date of the enactment of the Legal Workforce Act, on the date that is 6 months after the date of the enactment of such Act.

(II)

With respect to employers having 500 or more employees in the United States, but less than 10,000 employees in the United States, on the date of the enactment of the Legal Workforce Act, on the date that is 12 months after the date of the enactment of such Act.

(III)

With respect to employers having 20 or more employees in the United States, but less than 500 employees in the United States, on the date of the enactment of the Legal Workforce Act, on the date that is 18 months after the date of the enactment of such Act.

(IV)

With respect to employers having 1 or more employees in the United States, but less than 20 employees in the United States, on the date of the enactment of the Legal Workforce Act, on the date that is 24 months after the date of the enactment of such Act.

(ii)

Except as provided in clause (iii), the provisions of this paragraph shall apply to a person or other entity recruiting or referring an individual for employment in the United States on the date that is 12 months after the date of the enactment of the Legal Workforce Act.

(iii)

With respect to an employee performing agricultural labor or services, this paragraph shall not apply with respect to the verification of the employee until the date that is 18 months after the date of the enactment of the Legal Workforce Act. For purposes of the preceding sentence, the term agricultural labor or services has the meaning given such term by the Secretary of Agriculture in regulations and includes agricultural labor as defined in section 3121(g) of the Internal Revenue Code of 1986, agriculture as defined in section 3(f) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(f)), the handling, planting, drying, packing, packaging, processing, freezing, or grading prior to delivery for storage of any agricultural or horticultural commodity in its unmanufactured state, all activities required for the preparation, processing or manufacturing of a product of agriculture (as such term is defined in such section 3(f)) for further distribution, and activities similar to all the foregoing as they relate to fish or shellfish facilities. An employee described in this clause shall not be counted for purposes of clause (i).

(iv)

Upon request by an employer having 50 or fewer employees, the Secretary shall allow a one-time 6-month extension of the effective date set out in this subparagraph applicable to such employer. Such request shall be made to the Secretary and shall be made prior to such effective date.

(v)

Subject to paragraph (4), the following shall apply to a person or other entity hiring, recruiting, or referring an individual for employment in the United States until the effective date or dates applicable under clauses (i) through (iii):

(I)

This subsection, as in effect before the enactment of the Legal Workforce Act.

(II)

Subtitle A of title IV of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note), as in effect before the effective date in section 7(c) of the Legal Workforce Act.

(III)

Any other provision of Federal law requiring the person or entity to participate in the E-Verify Program described in section 403(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note), as in effect before the effective date in section 7(c) of the Legal Workforce Act, including Executive Order 13465 (8 U.S.C. 1324a note; relating to Government procurement).

(E)

(i)

For purposes of this paragraph:

(I)

In the case of recruitment or referral, the term verification period means the period ending on the date recruiting or referring commences.

(II)

In the case of hiring, the term verification period means the period beginning on the date on which an offer of employment is extended and ending on the date that is three business days after the date of hire, except as provided in clause (iii). The offer of employment may be conditioned in accordance with clause (ii).

(ii)

A person or other entity may offer a prospective employee an employment position that is conditioned on final verification of the identity and employment eligibility of the employee using the procedures established under this paragraph.

(iii)

Notwithstanding clause (i)(II), in the case of an alien who is authorized for employment and who provides evidence from the Social Security Administration that the alien has applied for a social security account number, the verification period ends three business days after the alien receives the social security account number.

(2)

(A)

Except as provided in subparagraph (B), a person or entity shall make an inquiry, as provided in subsection (d), using the verification system to seek reverification of the identity and employment eligibility of all individuals with a limited period of work authorization employed by the person or entity during the three business days after the date on which the employee's work authorization expires as follows:

(i)

With respect to employers having 10,000 or more employees in the United States on the date of the enactment of the Legal Workforce Act, beginning on the date that is 6 months after the date of the enactment of such Act.

(ii)

With respect to employers having 500 or more employees in the United States, but less than 10,000 employees in the United States, on the date of the enactment of the Legal Workforce Act, beginning on the date that is 12 months after the date of the enactment of such Act.

(iii)

With respect to employers having 20 or more employees in the United States, but less than 500 employees in the United States, on the date of the enactment of the Legal Workforce Act, beginning on the date that is 18 months after the date of the enactment of such Act.

(iv)

With respect to employers having 1 or more employees in the United States, but less than 20 employees in the United States, on the date of the enactment of the Legal Workforce Act, beginning on the date that is 24 months after the date of the enactment of such Act.

(B)

With respect to an employee performing agricultural labor or services, or an employee recruited or referred by a farm labor contractor (as defined in section 3 of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1801)), subparagraph (A) shall not apply with respect to the reverification of the employee until the date that is 18 months after the date of the enactment of the Legal Workforce Act. For purposes of the preceding sentence, the term agricultural labor or services has the meaning given such term by the Secretary of Agriculture in regulations and includes agricultural labor as defined in section 3121(g) of the Internal Revenue Code of 1986, agriculture as defined in section 3(f) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(f)), the handling, planting, drying, packing, packaging, processing, freezing, or grading prior to delivery for storage of any agricultural or horticultural commodity in its unmanufactured state, all activities required for the preparation, processing, or manufacturing of a product of agriculture (as such term is defined in such section 3(f)) for further distribution, and activities similar to all the foregoing as they relate to fish or shellfish facilities. An employee described in this subparagraph shall not be counted for purposes of subparagraph (A).

(C)

Paragraph (1)(C)(ii) shall apply to reverifications pursuant to this paragraph on the same basis as it applies to verifications pursuant to paragraph (1), except that employers shall—

(i)

use a form designated or established by the Secretary by regulation for purposes of this paragraph; and

(ii)

retain a paper, microfiche, microfilm, or electronic version of the form and make it available for inspection by officers of the Department of Homeland Security, the Department of Justice, or the Department of Labor during the period beginning on the date the reverification commences and ending on the date that is the later of 3 years after the date of such reverification or 1 year after the date the individual’s employment is terminated.

(3)

(A)

(i)

Not later than the date that is 6 months after the date of the enactment of the Legal Workforce Act, an employer shall make an inquiry, as provided in subsection (d), using the verification system to seek verification of the identity and employment eligibility of any individual described in clause (ii) employed by the employer whose employment eligibility has not been verified under the E-Verify Program described in section 403(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note).

(ii)

An individual described in this clause is any of the following:

(I)

An employee of any unit of a Federal, State, or local government.

(II)

An employee who requires a Federal security clearance working in a Federal, State or local government building, a military base, a nuclear energy site, a weapons site, or an airport or other facility that requires workers to carry a Transportation Worker Identification Credential (TWIC).

(III)

An employee assigned to perform work in the United States under a Federal contract, except that this subclause—

(aa)

is not applicable to individuals who have a clearance under Homeland Security Presidential Directive 12 (HSPD 12 clearance), are administrative or overhead personnel, or are working solely on contracts that provide Commercial Off The Shelf goods or services as set forth by the Federal Acquisition Regulatory Council, unless they are subject to verification under subclause (II); and

(bb)

only applies to contracts over the simple acquisition threshold as defined in section 2.101 of title 48, Code of Federal Regulations.

(B)

In the case of an employer who is required by this subsection to use the verification system described in subsection (d), or has elected voluntarily to use such system, the employer shall make inquiries to the system in accordance with the following:

(i)

The Commissioner of Social Security shall notify annually employees (at the employee address listed on the Wage and Tax Statement) who submit a social security account number to which more than one employer reports income and for which there is a pattern of unusual multiple use. The notification letter shall identify the number of employers to which income is being reported as well as sufficient information notifying the employee of the process to contact the Social Security Administration Fraud Hotline if the employee believes the employee’s identity may have been stolen. The notice shall not share information protected as private, in order to avoid any recipient of the notice from being in the position to further commit or begin committing identity theft.

(ii)

If the person to whom the social security account number was issued by the Social Security Administration has been identified and confirmed by the Commissioner, and indicates that the social security account number was used without their knowledge, the Secretary and the Commissioner shall lock the social security account number for employment eligibility verification purposes and shall notify the employers of the individuals who wrongfully submitted the social security account number that the employee may not be work eligible.

(iii)

Each employer receiving such notification of an incorrect social security account number under clause (ii) shall use the verification system described in subsection (d) to check the work eligibility status of the applicable employee within 10 business days of receipt of the notification.

(C)

Subject to paragraph (2), and subparagraphs (A) through (C) of this paragraph, beginning on the date that is 30 days after the date of the enactment of the Legal Workforce Act, an employer may make an inquiry, as provided in subsection (d), using the verification system to seek verification of the identity and employment eligibility of any individual employed by the employer. If an employer chooses voluntarily to seek verification of any individual employed by the employer, the employer shall seek verification of all individuals employed at the same geographic location or, at the option of the employer, all individuals employed within the same job category, as the employee with respect to whom the employer seeks voluntarily to use the verification system. An employer’s decision about whether or not voluntarily to seek verification of its current workforce under this subparagraph may not be considered by any government agency in any proceeding, investigation, or review provided for in this Act.

(D)

Paragraph (1)(C)(ii) shall apply to verifications pursuant to this paragraph on the same basis as it applies to verifications pursuant to paragraph (1), except that employers shall—

(i)

use a form designated or established by the Secretary by regulation for purposes of this paragraph; and

(ii)

retain a paper, microfiche, microfilm, or electronic version of the form and make it available for inspection by officers of the Department of Homeland Security, the Department of Justice, or the Department of Labor during the period beginning on the date the verification commences and ending on the date that is the later of 3 years after the date of such verification or 1 year after the date the individual’s employment is terminated.

(4)

(A)

Notwithstanding the deadlines in paragraphs (1) and (2), beginning on the date of the enactment of the Legal Workforce Act, the Secretary is authorized to commence requiring employers required to participate in the E-Verify Program described in section 403(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note), including employers required to participate in such program by reason of Federal acquisition laws (and regulations promulgated under those laws, including the Federal Acquisition Regulation), to commence compliance with the requirements of this subsection (and any additional requirements of such Federal acquisition laws and regulation) in lieu of any requirement to participate in the E-Verify Program.

(B)

Notwithstanding the deadlines in paragraphs (1) and (2), beginning on the date of the enactment of the Legal Workforce Act, the Secretary shall provide for the voluntary compliance with the requirements of this subsection by employers voluntarily electing to participate in the E-Verify Program described in section 403(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) before such date, as well as by other employers seeking voluntary early compliance.

(5)

Notwithstanding any other provision of law, the person or entity may copy a document presented by an individual pursuant to this subsection and may retain the copy, but only (except as otherwise permitted under law) for the purpose of complying with the requirements of this subsection.

(6)

A form designated or established by the Secretary of Homeland Security under this subsection and any information contained in or appended to such form, may not be used for purposes other than for enforcement of this Act and any other provision of Federal criminal law.

(7)

(A)

Except as otherwise provided in this subsection, a person or entity is considered to have complied with a requirement of this subsection notwithstanding a technical or procedural failure to meet such requirement if there was a good faith attempt to comply with the requirement.

(B)

Subparagraph (A) shall not apply if—

(i)

the failure is not de minimus;

(ii)

the Secretary of Homeland Security has explained to the person or entity the basis for the failure and why it is not de minimus;

(iii)

the person or entity has been provided a period of not less than 30 calendar days (beginning after the date of the explanation) within which to correct the failure; and

(iv)

the person or entity has not corrected the failure voluntarily within such period.

(C)

Subparagraph (A) shall not apply to a person or entity that has or is engaging in a pattern or practice of violations of subsection (a)(1)(A) or (a)(2).

(8)

In a case in which the Secretary of Homeland Security has certified to the Congress that the employment eligibility verification system required under subsection (d) will not be fully operational by the date that is 6 months after the date of the enactment of the Legal Workforce Act, each deadline established under this section for an employer to make an inquiry using such system shall be extended by 6 months. No other extension of such a deadline shall be made except as authorized under paragraph (1)(D)(iv).

(b)

Section 274A(h) of the Immigration and Nationality Act (8 U.S.C. 1324a(h)) is amended by adding at the end the following:

(4)

As used in this section, the term date of hire means the date of actual commencement of employment for wages or other remuneration, unless otherwise specified.

1103.

Section 274A(d) of the Immigration and Nationality Act (8 U.S.C. 1324a(d)) is amended to read as follows:

(d)

(1)

Patterned on the employment eligibility confirmation system established under section 404 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note), the Secretary of Homeland Security shall establish and administer a verification system through which the Secretary (or a designee of the Secretary, which may be a nongovernmental entity)—

(A)

responds to inquiries made by persons at any time through a toll-free telephone line and other toll-free electronic media concerning an individual’s identity and whether the individual is authorized to be employed; and

(B)

maintains records of the inquiries that were made, of verifications provided (or not provided), and of the codes provided to inquirers as evidence of their compliance with their obligations under this section.

(2)

The verification system shall provide confirmation or a tentative nonconfirmation of an individual’s identity and employment eligibility within 3 working days of the initial inquiry. If providing confirmation or tentative nonconfirmation, the verification system shall provide an appropriate code indicating such confirmation or such nonconfirmation.

(3)

In cases of tentative nonconfirmation, the Secretary shall specify, in consultation with the Commissioner of Social Security, an available secondary verification process to confirm the validity of information provided and to provide a final confirmation or nonconfirmation not later than 10 working days after the date on which the notice of the tentative nonconfirmation is received by the employee. The Secretary, in consultation with the Commissioner, may extend this deadline once on a case-by-case basis for a period of 10 working days, and if the time is extended, shall document such extension within the verification system. The Secretary, in consultation with the Commissioner, shall notify the employee and employer of such extension. The Secretary, in consultation with the Commissioner, shall create a standard process of such extension and notification and shall make a description of such process available to the public. When final confirmation or nonconfirmation is provided, the verification system shall provide an appropriate code indicating such confirmation or nonconfirmation.

(4)

The verification system shall be designed and operated—

(A)

to maximize its reliability and ease of use by persons and other entities consistent with insulating and protecting the privacy and security of the underlying information;

(B)

to respond to all inquiries made by such persons and entities on whether individuals are authorized to be employed and to register all times when such inquiries are not received;

(C)

with appropriate administrative, technical, and physical safeguards to prevent unauthorized disclosure of personal information;

(D)

to have reasonable safeguards against the system’s resulting in unlawful discriminatory practices based on national origin or citizenship status, including—

(i)

the selective or unauthorized use of the system to verify eligibility; or

(ii)

the exclusion of 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;

(E)

to maximize the prevention of identity theft use in the system; and

(F)

to limit the subjects of verification to the following individuals:

(i)

Individuals hired, referred, or recruited, in accordance with paragraph (1) or (4) of subsection (b).

(ii)

Employees and prospective employees, in accordance with paragraph (1), (2), (3), or (4) of subsection (b).

(iii)

Individuals seeking to confirm their own employment eligibility on a voluntary basis.

(5)

As part of the verification system, the Commissioner of Social Security, in consultation with the Secretary of Homeland Security (and any designee of the Secretary selected to establish and administer the verification system), shall establish a reliable, secure method, which, within the time periods specified under paragraphs (2) and (3), compares the name and social security account number provided in an inquiry against such information maintained by the Commissioner in order to validate (or not validate) the information provided regarding an individual whose identity and employment eligibility must be confirmed, the correspondence of the name and number, and whether the individual has presented a social security account number that is not valid for employment. The Commissioner shall not disclose or release social security information (other than such confirmation or nonconfirmation) under the verification system except as provided for in this section or section 205(c)(2)(I) of the Social Security Act.

(6)

As part of the verification system, the Secretary of Homeland Security (in consultation with any designee of the Secretary selected to establish and administer the verification system), shall establish a reliable, secure method, which, within the time periods specified under paragraphs (2) and (3), compares the name and alien identification or authorization number (or any other information as determined relevant by the Secretary) which are provided in an inquiry against such information maintained or accessed by the Secretary in order to validate (or not validate) the information provided, the correspondence of the name and number, whether the alien is authorized to be employed in the United States, or to the extent that the Secretary determines to be feasible and appropriate, whether the records available to the Secretary verify the identity or status of a national of the United States.

(7)

The Commissioner of Social Security and the Secretary of Homeland Security shall update their information in a manner that promotes the maximum accuracy and shall provide a process for the prompt correction of erroneous information, including instances in which it is brought to their attention in the secondary verification process described in paragraph (3).

(8)

(A)

Nothing in this section shall be construed to authorize, directly or indirectly, the issuance or use of national identification cards or the establishment of a national identification card.

(B)

The Secretary may authorize or direct any person or entity responsible for granting access to, protecting, securing, operating, administering, or regulating part of the critical infrastructure (as defined in section 1016(e) of the Critical Infrastructure Protection Act of 2001 (42 U.S.C. 5195c(e))) to use the verification system to the extent the Secretary determines that such use will assist in the protection of the critical infrastructure.

(9)

If an individual alleges that the individual would not have been dismissed from a job but for an error of the verification mechanism, the individual may seek compensation only through the mechanism of the Federal Tort Claims Act, and injunctive relief to correct such error. No class action may be brought under this paragraph.

1104.

(a)

Section 274A(a) of the Immigration and Nationality Act (8 U.S.C. 1324a(a)) is amended—

(1)

in paragraph (1)(A), by striking for a fee;

(2)

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

(B)

to hire, continue to employ, or to recruit or refer for employment in the United States an individual without complying with the requirements of subsection (b).

; and

(3)

in paragraph (2), by striking after hiring an alien for employment in accordance with paragraph (1), and inserting after complying with paragraph (1),.

(b)

Section 274A(h) of the Immigration and Nationality Act (8 U.S.C. 1324a(h)), as amended by this title, is further amended by adding at the end the following:

(5)

As used in this section, the term refer means the act of sending or directing a person who is in the United States or transmitting documentation or information to another, directly or indirectly, with the intent of obtaining employment in the United States for such person. Only persons or entities referring for remuneration (whether on a retainer or contingency basis) are included in the definition, except that union hiring halls that refer union members or nonunion individuals who pay union membership dues are included in the definition whether or not they receive remuneration, as are labor service entities or labor service agencies, whether public, private, for-profit, or nonprofit, that refer, dispatch, or otherwise facilitate the hiring of laborers for any period of time by a third party. As used in this section, the term recruit means the act of soliciting a person who is in the United States, directly or indirectly, and referring the person to another with the intent of obtaining employment for that person. Only persons or entities referring for remuneration (whether on a retainer or contingency basis) are included in the definition, except that union hiring halls that refer union members or nonunion individuals who pay union membership dues are included in this definition whether or not they receive remuneration, as are labor service entities or labor service agencies, whether public, private, for-profit, or nonprofit that recruit, dispatch, or otherwise facilitate the hiring of laborers for any period of time by a third party.

(c)

The amendments made by this section shall take effect on the date that is 1 year after the date of the enactment of this Act, except that the amendments made by subsection (a) shall take effect 6 months after the date of the enactment of this Act insofar as such amendments relate to continuation of employment.

1105.

Section 274A(a)(3) of the Immigration and Nationality Act (8 U.S.C. 1324a(a)(3)) is amended to read as follows:

(3)

(A)

An employer (or person or entity that hires, employs, recruits, or refers (as defined in subsection (h)(5)), or is otherwise obligated to comply with this section) who establishes that it has complied in good faith with the requirements of subsection (b)—

(i)

shall not be liable to a job applicant, an employee, the Federal Government, or a State or local government, under Federal, State, or local criminal or civil law for any employment-related action taken with respect to a job applicant or employee in good-faith reliance on information provided through the system established under subsection (d); and

(ii)

has established compliance with its obligations under subparagraphs (A) and (B) of paragraph (1) and subsection (b) absent a showing by the Secretary of Homeland Security, by clear and convincing evidence, that the employer had knowledge that an employee is an unauthorized alien.

(B)

For purposes of subparagraph (A)(i), if an employer proves by a preponderance of the evidence that the employer uses a reasonable, secure, and established technology to authenticate the identity of the new employee, that fact shall be taken into account for purposes of determining good faith use of the system established under subsection (d).

(C)

Subject to the effective dates and other deadlines applicable under subsection (b), in the case of a person or entity in the United States that hires, or continues to employ, an individual, or recruits or refers an individual for employment, the following requirements apply:

(i)

(I)

If the person or entity has not made an inquiry, under the mechanism established under subsection (d) and in accordance with the timeframes established under subsection (b), seeking verification of the identity and work eligibility of the individual, the defense under subparagraph (A) shall not be considered to apply with respect to any employment, except as provided in subclause (II).

(II)

If such a person or entity in good faith attempts to make an inquiry in order to qualify for the defense under subparagraph (A) and the verification mechanism has registered that not all inquiries were responded to during the relevant time, the person or entity can make an inquiry until the end of the first subsequent working day in which the verification mechanism registers no nonresponses and qualify for such defense.

(ii)

If the person or entity has made the inquiry described in clause (i)(I) but has not received an appropriate verification of such identity and work eligibility under such mechanism within the time period specified under subsection (d)(2) after the time the verification inquiry was received, the defense under subparagraph (A) shall not be considered to apply with respect to any employment after the end of such time period.

1106.

Section 274A(h)(2) of the Immigration and Nationality Act (8 U.S.C. 1324a(h)(2)) is amended to read as follows:

(2)

(A)

The provisions of this section preempt any State or local law, ordinance, policy, or rule, including any criminal or civil fine or penalty structure, insofar as they may now or hereafter relate to the hiring, continued employment, or status verification for employment eligibility purposes, of unauthorized aliens.

(B)

(i)

A State, locality, municipality, or political subdivision may exercise its authority over business licensing and similar laws as a penalty for failure to use the verification system described in subsection (d) to verify employment eligibility when and as required under subsection (b).

(ii)

A State, at its own cost, may enforce the provisions of this section, but only insofar as such State follows the Federal regulations implementing this section, applies the Federal penalty structure set out in this section, and complies with all Federal rules and guidance concerning implementation of this section. Such State may collect any fines assessed under this section. An employer may not be subject to enforcement, including audit and investigation, by both a Federal agency and a State for the same violation under this section. Whichever entity, the Federal agency or the State, is first to initiate the enforcement action, has the right of first refusal to proceed with the enforcement action. The Secretary must provide copies of all guidance, training, and field instructions provided to Federal officials implementing the provisions of this section to each State.

1107.

(a)

Subtitle A of title IV of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) is repealed.

(b)

Any reference in any Federal law, Executive order, rule, regulation, or delegation of authority, or any document of, or pertaining to, the Department of Homeland Security, Department of Justice, or the Social Security Administration, to the employment eligibility confirmation system established under section 404 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) is deemed to refer to the employment eligibility confirmation system established under section 274A(d) of the Immigration and Nationality Act, as amended by this title.

(c)

This section shall take effect on the date that is 24 months after the date of the enactment of this Act.

(d)

The table of sections, in section 1(d) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, is amended by striking the items relating to subtitle A of title IV.

1108.

Section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a) is amended—

(1)

in subsection (e)(1)—

(A)

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

(B)

in subparagraph (D), by striking Service and inserting Department of Homeland Security;

(2)

in subsection (e)(4)—

(A)

in subparagraph (A), in the matter before clause (i), by inserting , subject to paragraph (10), after in an amount;

(B)

in subparagraph (A)(i), by striking not less than $250 and not more than $2,000 and inserting not less than $2,500 and not more than $5,000;

(C)

in subparagraph (A)(ii), by striking not less than $2,000 and not more than $5,000 and inserting not less than $5,000 and not more than $10,000;

(D)

in subparagraph (A)(iii), by striking not less than $3,000 and not more than $10,000 and inserting not less than $10,000 and not more than $25,000; and

(E)

by moving the margin of the continuation text following subparagraph (B) two ems to the left and by amending subparagraph (B) to read as follows:

(B)

may require the person or entity to take such other remedial action as is appropriate.

;

(3)

in subsection (e)(5)—

(A)

in the paragraph heading, strike paperwork;

(B)

by inserting , subject to paragraphs (10) through (12), after in an amount;

(C)

by striking $100 and inserting $1,000;

(D)

by striking $1,000 and inserting $25,000; and

(E)

by adding at the end the following: Failure by a person or entity to utilize the employment eligibility verification system as required by law, or providing information to the system that the person or entity knows or reasonably believes to be false, shall be treated as a violation of subsection (a)(1)(A).;

(4)

by adding at the end of subsection (e) the following:

(10)

In the case of imposition of a civil penalty under paragraph (4)(A) with respect to a violation of subsection (a)(1)(A) or (a)(2) for hiring or continuation of employment or recruitment or referral by person or entity and in the case of imposition of a civil penalty under paragraph (5) for a violation of subsection (a)(1)(B) for hiring or recruitment or referral by a person or entity, the penalty otherwise imposed may be waived or reduced if the violator establishes that the violator acted in good faith.

(11)

For purposes of paragraph (4), the size of the business shall be taken into account when assessing the level of civil money penalty.

(12)

(A)

If a person or entity is determined by the Secretary of Homeland Security to be a repeat violator of paragraph (1)(A) or (2) of subsection (a), or is convicted of a crime under this section, such person or entity may be considered for debarment from the receipt of Federal contracts, grants, or cooperative agreements in accordance with the debarment standards and pursuant to the debarment procedures set forth in the Federal Acquisition Regulation.

(B)

If the Secretary of Homeland Security or the Attorney General wishes to have a person or entity considered for debarment in accordance with this paragraph, and such an person or entity does not hold a Federal contract, grant or cooperative agreement, the Secretary or Attorney General shall refer the matter to the Administrator of General Services to determine whether to list the person or entity on the List of Parties Excluded from Federal Procurement, and if so, for what duration and under what scope.

(C)

If the Secretary of Homeland Security or the Attorney General wishes to have a person or entity considered for debarment in accordance with this paragraph, and such person or entity holds a Federal contract, grant or cooperative agreement, the Secretary or Attorney General shall advise all agencies or departments holding a contract, grant, or cooperative agreement with the person or entity of the Government’s interest in having the person or entity considered for debarment, and after soliciting and considering the views of all such agencies and departments, the Secretary or Attorney General may refer the matter to any appropriate lead agency to determine whether to list the person or entity on the List of Parties Excluded from Federal Procurement, and if so, for what duration and under what scope.

(D)

Any decision to debar a person or entity in accordance with this paragraph shall be reviewable pursuant to part 9.4 of the Federal Acquisition Regulation.

(13)

The Secretary of Homeland Security shall establish an office—

(A)

to which State and local government agencies may submit information indicating potential violations of subsection (a), (b), or (g)(1) that were generated in the normal course of law enforcement or the normal course of other official activities in the State or locality;

(B)

that is required to indicate to the complaining State or local agency within five business days of the filing of such a complaint by identifying whether the Secretary will further investigate the information provided;

(C)

that is required to investigate those complaints filed by State or local government agencies that, on their face, have a substantial probability of validity;

(D)

that is required to notify the complaining State or local agency of the results of any such investigation conducted; and

(E)

that is required to report to the Congress annually the number of complaints received under this paragraph, the States and localities that filed such complaints, and the resolution of the complaints investigated by the Secretary.

; and

(5)

by amending paragraph (1) of subsection (f) to read as follows:

(1)

Any person or entity which engages in a pattern or practice of violations of subsection (a)(1) or (2) shall be fined not more than $5,000 for each unauthorized alien with respect to which such a violation occurs, imprisoned for not more than 18 months, or both, notwithstanding the provisions of any other Federal law relating to fine levels.

1109.

Section 1546(b) of title 18, United States Code, is amended—

(1)

in paragraph (1), by striking identification document, and inserting identification document or document meant to establish work authorization (including the documents described in section 274A(b) of the Immigration and Nationality Act),; and

(2)

in paragraph (2), by striking identification document and inserting identification document or document meant to establish work authorization (including the documents described in section 274A(b) of the Immigration and Nationality Act),.

1110.

(a)

Effective for fiscal years beginning on or after October 1, 2019, the Commissioner of Social Security and the Secretary of Homeland Security shall enter into and maintain an agreement which shall—

(1)

provide funds to the Commissioner for the full costs of the responsibilities of the Commissioner under section 274A(d) of the Immigration and Nationality Act (8 U.S.C. 1324a(d)), as amended by this title, including (but not limited to)—

(A)

acquiring, installing, and maintaining technological equipment and systems necessary for the fulfillment of the responsibilities of the Commissioner under such section 274A(d), but only that portion of such costs that are attributable exclusively to such responsibilities; and

(B)

responding to individuals who contest a tentative nonconfirmation provided by the employment eligibility verification system established under such section;

(2)

provide such funds annually in advance of the applicable quarter based on estimating methodology agreed to by the Commissioner and the Secretary (except in such instances where the delayed enactment of an annual appropriation may preclude such quarterly payments); and

(3)

require an annual accounting and reconciliation of the actual costs incurred and the funds provided under the agreement, which shall be reviewed by the Inspectors General of the Social Security Administration and the Department of Homeland Security.

(b)

In any case in which the agreement required under subsection (a) for any fiscal year beginning on or after October 1, 2019, has not been reached as of October 1 of such fiscal year, the latest agreement between the Commissioner and the Secretary of Homeland Security providing for funding to cover the costs of the responsibilities of the Commissioner under section 274A(d) of the Immigration and Nationality Act (8 U.S.C. 1324a(d)) shall be deemed in effect on an interim basis for such fiscal year until such time as an agreement required under subsection (a) is subsequently reached, except that the terms of such interim agreement shall be modified by the Director of the Office of Management and Budget to adjust for inflation and any increase or decrease in the volume of requests under the employment eligibility verification system. In any case in which an interim agreement applies for any fiscal year under this subsection, the Commissioner and the Secretary shall, not later than October 1 of such fiscal year, notify the Committee on Ways and Means, the Committee on the Judiciary, and the Committee on Appropriations of the House of Representatives and the Committee on Finance, the Committee on the Judiciary, and the Committee on Appropriations of the Senate of the failure to reach the agreement required under subsection (a) for such fiscal year. Until such time as the agreement required under subsection (a) has been reached for such fiscal year, the Commissioner and the Secretary shall, not later than the end of each 90-day period after October 1 of such fiscal year, notify such Committees of the status of negotiations between the Commissioner and the Secretary in order to reach such an agreement.

1111.

(a)

The Secretary of Homeland Security, in consultation with the Commissioner of Social Security, shall establish a program in which social security account numbers that have been identified to be subject to unusual multiple use in the employment eligibility verification system established under section 274A(d) of the Immigration and Nationality Act (8 U.S.C. 1324a(d)), as amended by this title, or that are otherwise suspected or determined to have been compromised by identity fraud or other misuse, shall be blocked from use for such system purposes unless the individual using such number is able to establish, through secure and fair additional security procedures, that the individual is the legitimate holder of the number.

(b)

The Secretary of Homeland Security, in consultation with the Commissioner of Social Security, shall establish a program which shall provide a reliable, secure method by which victims of identity fraud and other individuals may suspend or limit the use of their social security account number or other identifying information for purposes of the employment eligibility verification system established under section 274A(d) of the Immigration and Nationality Act (8 U.S.C. 1324a(d)), as amended by this title. The Secretary may implement the program on a limited pilot program basis before making it fully available to all individuals.

(c)

The Secretary of Homeland Security, in consultation with the Commissioner of Social Security, shall establish a program which shall provide a reliable, secure method by which parents or legal guardians may suspend or limit the use of the social security account number or other identifying information of a minor under their care for the purposes of the employment eligibility verification system established under 274A(d) of the Immigration and Nationality Act (8 U.S.C. 1324a(d)), as amended by this title. The Secretary may implement the program on a limited pilot program basis before making it fully available to all individuals.

1112.

An employer or entity who uses the photo matching tool, if required by the Secretary as part of the verification system, shall match, either visually, or using facial recognition or other verification technology approved or required by the Secretary, the photo matching tool photograph to the photograph on the identity or employment eligibility document provided by the individual or to the face of the employee submitting the document for employment verification purposes, or both, as determined by the Secretary.

1113.

Not later than 24 months after the date of the enactment of this Act, the Secretary of Homeland Security, after consultation with the Commissioner of Social Security and the Director of the National Institute of Standards and Technology, shall establish by regulation not less than 2 Identity Authentication Employment Eligibility Verification pilot programs, each using a separate and distinct technology (the Authentication Pilots). The purpose of the Authentication Pilots shall be to provide for identity authentication and employment eligibility verification with respect to enrolled new employees which shall be available to any employer that elects to participate in either of the Authentication Pilots. Any participating employer may cancel the employer’s participation in the Authentication Pilot after one year after electing to participate without prejudice to future participation. The Secretary shall report to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate the Secretary’s findings on the Authentication Pilots, including the authentication technologies chosen, not later than 12 months after commencement of the Authentication Pilots.

1114.

(a)

Not later than 1 year after the date of the enactment of this Act, the Inspector General of the Social Security Administration shall complete audits of the following categories in order to uncover evidence of individuals who are not authorized to work in the United States:

(1)

Workers who dispute wages reported on their social security account number when they believe someone else has used such number and name to report wages.

(2)

Children’s social security account numbers used for work purposes.

(3)

Employers whose workers present significant numbers of mismatched social security account numbers or names for wage reporting.

(b)

The Inspector General of the Social Security Administration shall submit the audits completed under subsection (a) to the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate for review of the evidence of individuals who are not authorized to work in the United States. The Chairmen of those Committees shall then determine information to be shared with the Secretary of Homeland Security so that such Secretary can investigate the unauthorized employment demonstrated by such evidence.

2201.

This title may be cited as the No Sanctuary for Criminals Act.

2202.

(a)

Section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1373) is amended—

(1)

by striking subsection (a) and inserting the following:

(a)

Notwithstanding any other provision of Federal, State, or local law, no Federal, State, or local government entity, and no individual, may prohibit or in any way restrict, a Federal, State, or local government entity, official, or other personnel from complying with the immigration laws (as defined in section 101(a)(17) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(17))), or from assisting or cooperating with Federal law enforcement entities, officials, or other personnel regarding the enforcement of these laws.

;

(2)

by striking subsection (b) and inserting the following:

(b)

Notwithstanding any other provision of Federal, State, or local law, no Federal, State, or local government entity, and no individual, may prohibit, or in any way restrict, a Federal, State, or local government entity, official, or other personnel from undertaking any of the following law enforcement activities as they relate to information regarding the citizenship or immigration status, lawful or unlawful, the inadmissibility or deportability, or the custody status, of any individual:

(1)

Making inquiries to any individual in order to obtain such information regarding such individual or any other individuals.

(2)

Notifying the Federal Government regarding the presence of individuals who are encountered by law enforcement officials or other personnel of a State or political subdivision of a State.

(3)

Complying with requests for such information from Federal law enforcement entities, officials, or other personnel.

;

(3)

in subsection (c), by striking Immigration and Naturalization Service and inserting Department of Homeland Security; and

(4)

by adding at the end the following:

(d)

(1)

A State, or a political subdivision of a State, that is found not to be in compliance with subsection (a) or (b) shall not be eligible to receive—

(A)

any of the funds that would otherwise be allocated to the State or political subdivision under section 241(i) of the Immigration and Nationality Act (8 U.S.C. 1231(i)), the Cops on the Beat program under part Q of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (34 U.S.C. 10381 et seq.), or the Edward Byrne Memorial Justice Assistance Grant Program under subpart 1 of part E of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (34 U.S.C. 10151 et seq.); or

(B)

any other grant administered by the Department of Justice that is substantially related to law enforcement (including enforcement of the immigration laws), immigration, enforcement of the immigration laws, or naturalization or administered by the Department of Homeland Security that is substantially related to immigration, the enforcement of the immigration laws, or naturalization.

(2)

The Secretary, at the Secretary’s discretion, may decline to transfer an alien in the custody of the Department of Homeland Security to a State or political subdivision of a State found not to be in compliance with subsection (a) or (b), regardless of whether the State or political subdivision of the State has issued a writ or warrant.

(3)

The Secretary shall not transfer an alien with a final order of removal pursuant to paragraph (1)(A) or (5) of section 241(a) of the Immigration and Nationality Act (8 U.S.C. 1231(a)) to a State or a political subdivision of a State that is found not to be in compliance with subsection (a) or (b).

(4)

The Secretary shall determine for each calendar year which States or political subdivision of States are not in compliance with subsection (a) or (b) and shall report such determinations to Congress by March 1 of each succeeding calendar year.

(5)

The Secretary of Homeland Security shall issue a report concerning the compliance with subsections (a) and (b) of any particular State or political subdivision of a State at the request of the House or the Senate Judiciary Committee. Any jurisdiction that is found not to be in compliance shall be ineligible to receive Federal financial assistance as provided in paragraph (1) for a minimum period of 1 year, and shall only become eligible again after the Secretary of Homeland Security certifies that the jurisdiction has come into compliance.

(6)

Any funds that are not allocated to a State or to a political subdivision of a State due to the failure of the State or of the political subdivision of the State to comply with subsection (a) or (b) shall be reallocated to States or to political subdivisions of States that comply with both such subsections.

(e)

Nothing in this section shall require law enforcement officials from States, or from political subdivisions of States, to report or arrest victims or witnesses of a criminal offense.

(b)

The amendments made by this section shall take effect on the date of the enactment of this Act, except that subsection (d) of section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1373), as added by this section, shall apply only to prohibited acts committed on or after the date of the enactment of this Act.

2203.

(a)

Section 287(d) of the Immigration and Nationality Act (8 U.S.C. 1357(d)) is amended to read as follows:

(d)

(1)

In the case of an individual who is arrested by any Federal, State, or local law enforcement official or other personnel for the alleged violation of any criminal or motor vehicle law, the Secretary may issue a detainer regarding the individual to any Federal, State, or local law enforcement entity, official, or other personnel if the Secretary has probable cause to believe that the individual is an inadmissible or deportable alien.

(2)

Probable cause is deemed to be established if—

(A)

the individual who is the subject of the detainer matches, pursuant to biometric confirmation or other Federal database records, the identity of an alien who the Secretary has reasonable grounds to believe to be inadmissible or deportable;

(B)

the individual who is the subject of the detainer is the subject of ongoing removal proceedings, including matters where a charging document has already been served;

(C)

the individual who is the subject of the detainer has previously been ordered removed from the United States and such an order is administratively final;

(D)

the individual who is the subject of the detainer has made voluntary statements or provided reliable evidence that indicate that they are an inadmissible or deportable alien; or

(E)

the Secretary otherwise has reasonable grounds to believe that the individual who is the subject of the detainer is an inadmissible or deportable alien.

(3)

If the Federal, State, or local law enforcement entity, official, or other personnel to whom a detainer is issued complies with the detainer and detains for purposes of transfer of custody to the Department of Homeland Security the individual who is the subject of the detainer, the Department may take custody of the individual within 48 hours (excluding weekends and holidays), but in no instance more than 96 hours, following the date that the individual is otherwise to be released from the custody of the relevant Federal, State, or local law enforcement entity.

(b)

(1)

A State or a political subdivision of a State (and the officials and personnel of the State or subdivision acting in their official capacities), and a nongovernmental entity (and its personnel) contracted by the State or political subdivision for the purpose of providing detention, acting in compliance with a Department of Homeland Security detainer issued pursuant to this section who temporarily holds an alien in its custody pursuant to the terms of a detainer so that the alien may be taken into the custody of the Department of Homeland Security, shall be considered to be acting under color of Federal authority for purposes of determining their liability and shall be held harmless for their compliance with the detainer in any suit seeking any punitive, compensatory, or other monetary damages.

(2)

In any civil action arising out of the compliance with a Department of Homeland Security detainer by a State or a political subdivision of a State (and the officials and personnel of the State or subdivision acting in their official capacities), or a nongovernmental entity (and its personnel) contracted by the State or political subdivision for the purpose of providing detention, the United States Government shall be the proper party named as the defendant in the suit in regard to the detention resulting from compliance with the detainer.

(3)

Paragraphs (1) and (2) shall not apply to any mistreatment of an individual by a State or a political subdivision of a State (and the officials and personnel of the State or subdivision acting in their official capacities), or a nongovernmental entity (and its personnel) contracted by the State or political subdivision for the purpose of providing detention.

(c)

(1)

Any individual, or a spouse, parent, or child of that individual (if the individual is deceased), who is the victim of a murder, rape, or any felony, as defined by the State, for which an alien (as defined in section 101(a)(3) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(3))) has been convicted and sentenced to a term of imprisonment of at least 1 year, may bring an action against a State or political subdivision of a State or public official acting in an official capacity in the appropriate Federal court if the State or political subdivision, except as provided in paragraph (3)—

(A)

released the alien from custody prior to the commission of such crime as a consequence of the State or political subdivision’s declining to honor a detainer issued pursuant to section 287(d)(1) of the Immigration and Nationality Act (8 U.S.C. 1357(d)(1));

(B)

has in effect a statute, policy, or practice not in compliance with section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1373) as amended, and as a consequence of its statute, policy, or practice, released the alien from custody prior to the commission of such crime; or

(C)

has in effect a statute, policy, or practice requiring a subordinate political subdivision to decline to honor any or all detainers issued pursuant to section 287(d)(1) of the Immigration and Nationality Act (8 U.S.C. 1357(d)(1)), and, as a consequence of its statute, policy or practice, the subordinate political subdivision declined to honor a detainer issued pursuant to such section, and as a consequence released the alien from custody prior to the commission of such crime.

(2)

An action may not be brought under this subsection later than 10 years following the occurrence of the crime, or death of a person as a result of such crime, whichever occurs later.

(3)

If a political subdivision of a State declines to honor a detainer issued pursuant to section 287(d)(1) of the Immigration and Nationality Act (8 U.S.C. 1357(d)) as a consequence of the State or another political subdivision with jurisdiction over the subdivision prohibiting the subdivision through a statute or other legal requirement of the State or other political subdivision—

(A)

from honoring the detainer; or

(B)

fully complying with section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1373),

and, as a consequence of the statute or other legal requirement of the State or other political subdivision, the subdivision released the alien referred to in paragraph (1) from custody prior to the commission of the crime referred to in that paragraph, the State or other political subdivision that enacted the statute or other legal requirement, shall be deemed to be the proper defendant in a cause of action under this subsection, and no such cause of action may be maintained against the political subdivision which declined to honor the detainer.

(4)

In any action or proceeding under this subsection the court shall allow a prevailing plaintiff a reasonable attorneys fee as part of the costs, and include expert fees as part of the attorneys fee.

(d)

(1)

Except as provided in paragraph (2), a State or political subdivision of a State that has in effect a statute, policy or practice providing that it not comply with any or all Department of Homeland Security detainers issued pursuant to section 287(d)(1) of the Immigration and Nationality Act (8 U.S.C. 1357(d)) shall not be eligible to receive—

(A)

any of the funds that would otherwise be allocated to the State or political subdivision under section 241(i) of the Immigration and Nationality Act (8 U.S.C. 1231(i)), the Cops on the Beat program under part Q of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (34 U.S.C. 10301 et seq.), or the Edward Byrne Memorial Justice Assistance Grant Program under subpart 1 of part E of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (34 U.S.C. 10151 et seq.); or

(B)

any other grant administered by the Department of Justice that is substantially related to law enforcement (including enforcement of the immigration laws), immigration, or naturalization or grant administered by the Department of Homeland Security that is substantially related to immigration, enforcement of the immigration laws, or naturalization.

(2)

A political subdivision described in subsection (c)(3) that declines to honor a detainer issued pursuant to section 287(d)(1) of the Immigration and Nationality Act (8 U.S.C. 1357(d)(1)) as a consequence of being required to comply with a statute or other legal requirement of a State or another political subdivision with jurisdiction over that political subdivision, shall remain eligible to receive grant funds described in paragraph (1). In the case described in the previous sentence, the State or political subdivision that enacted the statute or other legal requirement shall not be eligible to receive such funds.

2204.

(a)

(1)

(A)

Section 236 of the Immigration and Nationality Act (8 U.S.C. 1226) is amended by striking Attorney General each place it appears (except in the second place that term appears in section 236(a)) and inserting Secretary of Homeland Security.

(B)

Section 236(a) of such Act (8 U.S.C. 1226(a)) is amended by inserting the Secretary of Homeland Security or before the Attorney General—.

(C)

Section 236(e) of such Act (8 U.S.C. 1226(e)) is amended by striking Attorney General’s and inserting Secretary of Homeland Security’s.

(2)

Section 236 of such Act (8 U.S.C. 1226) is amended by adding at the end the following:

(f)

(1)

Notwithstanding any other provision of this section, an alien may be detained, and for an alien described in subsection (c) shall be detained, under this section without time limitation, except as provided in subsection (h), during the pendency of removal proceedings.

(2)

The length of detention under this section shall not affect detention under section 241.

(3)

Section 236(c)(1) of such Act (8 U.S.C. 1226(c)(1)) is amended—

(A)

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

(B)

by inserting after subparagraph (D) the following:

(E)

is unlawfully present in the United States and has been convicted for driving while intoxicated (including a conviction for driving while under the influence or impaired by alcohol or drugs) without regard to whether the conviction is classified as a misdemeanor or felony under State law, or

(F)

(i)

(I)

is inadmissible under section 212(a)(6)(i),

(II)

is deportable by reason of a visa revocation under section 221(i), or

(III)

is deportable under section 237(a)(1)(C)(i), and

(ii)

has been arrested or charged with a particularly serious crime or a crime resulting in the death or serious bodily injury (as defined in section 1365(h)(3) of title 18, United States Code) of another person;

; and

(C)

by amending the matter following subparagraph (F) (as added by subparagraph (B) of this paragraph) to read as follows:

any time after the alien is released, without regard to whether an alien is released related to any activity, offense, or conviction described in this paragraph; to whether the alien is released on parole, supervised release, or probation; or to whether the alien may be arrested or imprisoned again for the same offense. If the activity described in this paragraph does not result in the alien being taken into custody by any person other than the Secretary, then when the alien is brought to the attention of the Secretary or when the Secretary determines it is practical to take such alien into custody, the Secretary shall take such alien into custody.

(4)

Section 236 of the Immigration and Nationality Act (8 U.S.C. 1226), as amended by paragraph (2), is further amended by adding at the end the following:

(g)

The Attorney General’s review of the Secretary’s custody determinations under subsection (a) for the following classes of aliens shall be limited to whether the alien may be detained, released on bond (of at least $1,500 with security approved by the Secretary), or released with no bond:

(1)

Aliens in exclusion proceedings.

(2)

Aliens described in section 212(a)(3) or 237(a)(4).

(3)

Aliens described in subsection (c).

(h)

(1)

An alien detained under subsection (a) may seek release on bond. No bond may be granted except to an alien who establishes by clear and convincing evidence that the alien is not a flight risk or a danger to another person or the community.

(2)

No alien detained under subsection (c) may seek release on bond.

(5)

(A)

Section 236(a)(2)(B) of the Immigration and Nationality Act (8 U.S.C. 1226(a)(2)(B)) is amended by striking conditional parole and inserting recognizance.

(B)

Section 236(b) of such Act (8 U.S.C. 1226(b)) is amended by striking parole and inserting recognizance.

(b)

The amendments made by subsection (a) shall take effect on the date of the enactment of this Act and shall apply to any alien in detention under the provisions of section 236 of the Immigration and Nationality Act (8 U.S.C. 1226), as so amended, or otherwise subject to the provisions of such section, on or after such date.

2205.

Section 287(g) of the Immigration and Nationality Act (8 U.S.C. 1357(g)) is amended—

(1)

in paragraph (1) by striking may enter and all that follows through the period at the end and inserting the following: shall enter into a written agreement with a State, or any political subdivision of a State, upon request of the State or political subdivision, pursuant to which officers or employees of the State or subdivision, who are determined by the Secretary to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States (including the transportation of such aliens across State lines to detention centers), may carry out such function at the expense of the State or political subdivision and to the extent consistent with State and local law. No request from a bona fide State or political subdivision or bona fide law enforcement agency shall be denied absent a compelling reason. No limit on the number of agreements under this subsection may be imposed. The Secretary shall process requests for such agreements with all due haste, and in no case shall take not more than 90 days from the date the request is made until the agreement is consummated.;

(2)

by redesignating paragraph (2) as paragraph (5) and paragraphs (3) through (10) as paragraphs (7) through (14), respectively;

(3)

by inserting after paragraph (1) the following:

(2)

An agreement under this subsection shall accommodate a requesting State or political subdivision with respect to the enforcement model or combination of models, and shall accommodate a patrol model, task force model, jail model, any combination thereof, or any other reasonable model the State or political subdivision believes is best suited to the immigration enforcement needs of its jurisdiction.

(3)

No Federal program or technology directed broadly at identifying inadmissible or deportable aliens shall substitute for such agreements, including those establishing a jail model, and shall operate in addition to any agreement under this subsection.

(4)

(A)

No agreement under this subsection shall be terminated absent a compelling reason.

(B)

(i)

The Secretary shall provide a State or political subdivision written notice of intent to terminate at least 180 days prior to date of intended termination, and the notice shall fully explain the grounds for termination, along with providing evidence substantiating the Secretary’s allegations.

(ii)

The State or political subdivision shall have the right to a hearing before an administrative law judge and, if the ruling is against the State or political subdivision, to appeal the ruling to the Federal Circuit Court of Appeals and, if the ruling is against the State or political subdivision, to petition the Supreme Court for certiorari.

(C)

The agreement shall remain in full effect during the course of any and all legal proceedings.

; and

(4)

by inserting after paragraph (5) (as redesignated) the following:

(6)

The Secretary of Homeland Security shall make training of State and local law enforcement officers available through as many means as possible, including through residential training at the Center for Domestic Preparedness and the Federal Law Enforcement Training Center, onsite training held at State or local police agencies or facilities, online training courses by computer, teleconferencing, and videotape, or the digital video display (DVD) of a training course or courses. Distance learning through a secure, encrypted, distributed learning system that has all its servers based in the United States, is scalable, survivable, and can have a portal in place not later than 30 days after the date of the enactment of the Securing America’s Future Act of 2018, shall be made available by the COPS Office of the Department of Justice and the Federal Law Enforcement Training Center Distributed Learning Program for State and local law enforcement personnel. Preference shall be given to private sector-based, web-based immigration enforcement training programs for which the Federal Government has already provided support to develop.

2206.

(a)

Section 275 of the Immigration and Nationality Act (8 U.S.C. 1325) is amended to read as follows:

275.

(a)

(1)

An alien shall be subject to the penalties set forth in paragraph (2) if the alien—

(A)

knowingly enters or crosses the border into the United States at any time or place other than as designated by the Secretary of Homeland Security;

(B)

knowingly eludes, at any time or place, examination or inspection by an authorized immigration, customs, or agriculture officer (including by failing to stop at the command of such officer);

(C)

knowingly enters or crosses the border to the United States and, upon examination or inspection, knowingly makes a false or misleading representation or the knowing concealment of a material fact (including such representation or concealment in the context of arrival, reporting, entry, or clearance requirements of the customs laws, immigration laws, agriculture laws, or shipping laws);

(D)

knowingly violates the terms or conditions of the alien’s admission or parole into the United States and has remained in violation for an aggregate period of 90 days or more; or

(E)

knowingly is unlawfully present in the United States (as defined in section 212(a)(9)(B)(ii) subject to the exceptions set forth in section 212(a)(9)(B)(iii)) and has remained in violation for an aggregate period of 90 days or more.

(2)

Any alien who violates any provision under paragraph (1)—

(A)

shall, for the first violation, be fined under title 18, United States Code, imprisoned not more than 6 months, or both;

(B)

shall, for a second or subsequent violation, or following an order of voluntary departure, be fined under such title, imprisoned not more than 2 years (or not more than 6 months in the case of a second or subsequent violation of paragraph (1)(E)), or both;

(C)

if the violation occurred after the alien had been convicted of 3 or more misdemeanors or for a felony, shall be fined under such title, imprisoned not more than 10 years, or both;

(D)

if the violation occurred after the alien had been convicted of a felony for which the alien received a term of imprisonment of not less than 30 months, shall be fined under such title, imprisoned not more than 15 years, or both; and

(E)

if the violation occurred after the alien had been convicted of a felony for which the alien received a term of imprisonment of not less than 60 months, such alien shall be fined under such title, imprisoned not more than 20 years, or both.

(3)

The prior convictions described in subparagraphs (C) through (E) of paragraph (2) are elements of the offenses described and the penalties in such subparagraphs shall apply only in cases in which the conviction or convictions that form the basis for the additional penalty are—

(A)

alleged in the indictment or information; and

(B)

proven beyond a reasonable doubt at trial or admitted by the defendant.

(4)

An offense under this subsection continues until the alien is discovered within the United States by an immigration, customs, or agriculture officer, or until the alien is granted a valid visa or relief from removal.

(5)

Whoever attempts to commit any offense under this section shall be punished in the same manner as for a completion of such offense.

(b)

Any alien who is apprehended while entering, attempting to enter, or knowingly crossing or attempting to cross the border to the United States at a time or place other than as designated by immigration officers shall be subject to a civil penalty, in addition to any criminal or other civil penalties that may be imposed under any other provision of law, in an amount equal to—

(1)

not less than $50 or more than $250 for each such entry, crossing, attempted entry, or attempted crossing; or

(2)

twice the amount specified in paragraph (1) if the alien had previously been subject to a civil penalty under this subsection.

(b)

The table of contents for the Immigration and Nationality Act is amended by striking the item relating to section 275 and inserting the following:

Sec. 275. Illegal entry or presence.

(c)

(1)

Section 275(a) of the Immigration and Nationality Act (8 U.S.C. 1325(a)), as amended by subsection (a), shall take effect 90 days after the date of the enactment of this Act, and shall apply to acts, conditions, or violations described in such section 275(a) that occur or exist on or after such effective date.

(2)

Section 275(b) of the Immigration and Nationality Act (8 U.S.C. 1325(b)), as amended by subsection (a), shall take effect on the date of the enactment of this Act and shall apply to acts described in such section 275(b) that occur before, on, or after such date.

III

3301.

(a)

Section 212 of the Immigration and Nationality Act (8 U.S.C. 1182) is amended—

(1)

in subsection (a)(2)(A)(i)—

(A)

in subclause (I), by striking or at the end;

(B)

in subclause (II), by adding or at the end; and

(C)

by inserting after subclause (II) the following:

(III)

a violation of (or a conspiracy or attempt to violate) an offense described in section 208 of the Social Security Act (42 U.S.C. 408) (relating to social security account numbers or social security cards) or section 1028 of title 18, United States Code (relating to fraud and related activity in connection with identification documents, authentication features, and information),

;

(2)

by adding at the end of subsection (a)(2) the following:

(J)

Any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of, a violation of, or an attempt or a conspiracy to violate, subsection (a) or (b) of section 1425 of title 18, United States Code (relating to the procurement of citizenship or naturalization unlawfully) is inadmissible.

(K)

Any alien who at any time has been convicted under any law of, or who admits having committed or admits committing acts which constitute the essential elements of, purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921(a) of title 18, United States Code) in violation of any law is inadmissible.

(L)

Any alien who has been convicted of an aggravated felony at any time is inadmissible.

(M)

(i)

Any alien who at any time is convicted of, or who admits having committed or admits committing acts which constitute the essential elements of, a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is inadmissible. For purposes of this clause, the term crime of domestic violence means any crime of violence (as defined in section 16 of title 18, United States Code) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individual’s acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local or foreign government.

(ii)

Any alien who at any time is enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is inadmissible. For purposes of this clause, the term protection order means any injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions) whether obtained by filing an independent action or as a independent order in another proceeding.

(iii)

The waiver authority available under section 237(a)(7) with respect to section 237(a)(2)(E)(i) shall be available on a comparable basis with respect to this subparagraph.

(iv)

If the conviction records do not conclusively establish whether a crime of domestic violence constitutes a crime of violence (as defined in section 16 of title 18, United States Code), the Attorney General may consider other evidence related to the conviction that establishes that the conduct for which the alien was engaged constitutes a crime of violence.

; and

(3)

in subsection (h)—

(A)

by striking The Attorney General may, in his discretion, waive the application of subparagraphs (A)(i)(I), (B), (D), and (E) of subsection (a)(2) and inserting The Attorney General or the Secretary of Homeland Security may, in the discretion of the Attorney General or the Secretary, waive the application of subparagraphs (A)(i)(I), (III), (B), (D), (E), (K), and (M) of subsection (a)(2);

(B)

by striking a criminal act involving torture. and inserting a criminal act involving torture, or has been convicted of an aggravated felony.;

(C)

by striking if either since the date of such admission the alien has been convicted of an aggravated felony or the alien and inserting if since the date of such admission the alien; and

(D)

by inserting or Secretary of Homeland Security after the Attorney General each place it appears.

(b)

Section 237(a)(3)(B) of the Immigration and Nationality Act (8 U.S.C. 1227(a)(3)(B)) is amended—

(1)

in clause (ii), by striking or at the end;

(2)

in clause (iii), by inserting or at the end; and

(3)

by inserting after clause (iii) the following:

(iv)

of a violation of, or an attempt or a conspiracy to violate, section 1425(a) or (b) of title 18 (relating to the procurement of citizenship or naturalization unlawfully),

(c)

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

(G)

Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) section 208 of the Social Security Act (42 U.S.C. 408) (relating to social security account numbers or social security cards) or section 1028 of title 18, United States Code (relating to fraud and related activity in connection with identification) is deportable.

(d)

The amendments made by this section shall apply—

(1)

to any act that occurred before, on, or after the date of the enactment of this Act; and

(2)

to all aliens who are required to establish admissibility on or after such date, and in all removal, deportation, or exclusion proceedings that are filed, pending, or reopened, on or after such date.

(e)

The amendments made by subsection (a) shall not be construed to create eligibility for relief from removal under former section 212(c) of the Immigration and Nationality Act where such eligibility did not exist before these amendments became effective.

3302.

(a)

Section 212(a)(2)(A)(i) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(2)(A)(i)), as amended by this title, is further amended—

(1)

in subclause (II), by striking or at the end;

(2)

in subclause (III), by adding or at the end; and

(3)

by inserting after subclause (III) the following:

(IV)

a violation of section 2250 of title 18, United States Code (relating to failure to register as a sex offender),

(b)

Section 237(a)(2) of such Act (8 U.S.C. 1227(a)(2)), as amended by this title, is further amended—

(1)

in subparagraph (A), by striking clause (v); and

(2)

by adding at the end the following:

(I)

Any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a violation of section 2250 of title 18, United States Code (relating to failure to register as a sex offender) is deportable.

(c)

The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to acts that occur before, on, or after the date of the enactment of this Act.

3303.

(a)

Section 101(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)) is amended by adding at the end the following:

(53)

The term criminal gang means an ongoing group, club, organization, or association of 5 or more persons that has as one of its primary purposes the commission of 1 or more of the following criminal offenses and the members of which engage, or have engaged within the past 5 years, in a continuing series of such offenses, or that has been designated as a criminal gang by the Secretary of Homeland Security, in consultation with the Attorney General, as meeting these criteria. The offenses described, whether in violation of Federal or State law or foreign law and regardless of whether the offenses occurred before, on, or after the date of the enactment of this paragraph, are the following:

(A)

A felony drug offense (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)).

(B)

A felony offense involving firearms or explosives or in violation of section 931 of title 18, United States Code (relating to purchase, ownership, or possession of body armor by violent felons).

(C)

An offense under section 274 (relating to bringing in and harboring certain aliens), section 277 (relating to aiding or assisting certain aliens to enter the United States), or section 278 (relating to importation of alien for immoral purpose).

(D)

A crime of violence (as defined in section 16 of title 18, United States Code).

(E)

A crime involving obstruction of justice, tampering with or retaliating against a witness, victim, or informant.

(F)

Any conduct punishable under sections 1028A and 1029 of title 18, United States Code (relating to aggravated identity theft or fraud and related activity in connection with identification documents or access devices), sections 1581 through 1594 of such title (relating to peonage, slavery, and trafficking in persons), section 1951 of such title (relating to interference with commerce by threats or violence), section 1952 of such title (relating to interstate and foreign travel or transportation in aid of racketeering enterprises), section 1956 of such title (relating to the laundering of monetary instruments), section 1957 of such title (relating to engaging in monetary transactions in property derived from specified unlawful activity), or sections 2312 through 2315 of such title (relating to interstate transportation of stolen motor vehicles or stolen property).

(G)

A conspiracy to commit an offense described in subparagraphs (A) through (F).

(b)

Section 212(a)(2) of such Act (8 U.S.C. 1182(a)(2)) is amended by adding at the end the following:

(J)

(i)

Any alien is inadmissible who a consular officer, an immigration officer, the Secretary of Homeland Security, or the Attorney General knows or has reason to believe—

(I)

to be or to have been a member of a criminal gang (as defined in section 101(a)(53)); or

(II)

to have participated in the activities of a criminal gang (as defined in section 101(a)(53)), knowing or having reason to know that such activities will promote, further, aid, or support the illegal activity of the criminal gang.

(ii)

Any alien for whom a consular officer, an immigration officer, the Secretary of Homeland Security, or the Attorney General has reasonable grounds to believe has participated in, been a member of, promoted, or conspired with a criminal gang, either inside or outside of the United States, is inadmissible.

(iii)

Any alien for whom a consular officer, an immigration officer, the Secretary of Homeland Security, or the Attorney General has reasonable grounds to believe seeks to enter the United States or has entered the United States in furtherance of the activities of a criminal gang, either inside or outside of the United States, is inadmissible.

(c)

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

(G)

Any alien is deportable who—

(i)

is or has been a member of a criminal gang (as defined in section 101(a)(53)); or

(ii)

has participated in the activities of a criminal gang (as so defined), knowing or having reason to know that such activities will promote, further, aid, or support the illegal activity of the criminal gang.

(d)

(1)

Chapter 2 of title II of the Immigration and Nationality Act (8 U.S.C. 1182) is amended by inserting after section 219 the following:

220.

(a)

(1)

The Secretary of Homeland Security, in consultation with the Attorney General, may designate a group, club, organization, or association of 5 or more persons as a criminal gang if the Secretary finds that their conduct is described in section 101(a)(53).

(2)

(A)

Seven days before making a designation under this subsection, the Secretary shall, by classified communication, notify the Speaker and Minority Leader of the House of Representatives, the President pro tempore, Majority Leader, and Minority Leader of the Senate, and the members of the relevant committees of the House of Representatives and the Senate, in writing, of the intent to designate a group, club, organization, or association of 5 or more persons under this subsection and the factual basis therefor.

(B)

The Secretary shall publish the designation in the Federal Register seven days after providing the notification under subparagraph (A).

(3)

(A)

In making a designation under this subsection, the Secretary shall create an administrative record.

(B)

The Secretary may consider classified information in making a designation under this subsection. Classified information shall not be subject to disclosure for such time as it remains classified, except that such information may be disclosed to a court ex parte and in camera for purposes of judicial review under subsection (c).

(4)

(A)

A designation under this subsection shall be effective for all purposes until revoked under paragraph (5) or (6) or set aside pursuant to subsection (c).

(B)

(i)

The Secretary shall review the designation of a criminal gang under the procedures set forth in clauses (iii) and (iv) if the designated group, club, organization, or association of 5 or more persons files a petition for revocation within the petition period described in clause (ii).

(ii)

For purposes of clause (i)—

(I)

if the designated group, club, organization, or association of 5 or more persons has not previously filed a petition for revocation under this subparagraph, the petition period begins 2 years after the date on which the designation was made; or

(II)

if the designated group, club, organization, or association of 5 or more persons has previously filed a petition for revocation under this subparagraph, the petition period begins 2 years after the date of the determination made under clause (iv) on that petition.

(iii)

Any group, club, organization, or association of 5 or more persons that submits a petition for revocation under this subparagraph of its designation as a criminal gang must provide evidence in that petition that it is not described in section 101(a)(53).

(iv)

(I)

Not later than 180 days after receiving a petition for revocation submitted under this subparagraph, the Secretary shall make a determination as to such revocation.

(II)

The Secretary may consider classified information in making a determination in response to a petition for revocation. Classified information shall not be subject to disclosure for such time as it remains classified, except that such information may be disclosed to a court ex parte and in camera for purposes of judicial review under subsection (c).

(III)

A determination made by the Secretary under this clause shall be published in the Federal Register.

(IV)

Any revocation by the Secretary shall be made in accordance with paragraph (6).

(C)

(i)

If in a 5-year period no review has taken place under subparagraph (B), the Secretary shall review the designation of the criminal gang in order to determine whether such designation should be revoked pursuant to paragraph (6).

(ii)

If a review does not take place pursuant to subparagraph (B) in response to a petition for revocation that is filed in accordance with that subparagraph, then the review shall be conducted pursuant to procedures established by the Secretary. The results of such review and the applicable procedures shall not be reviewable in any court.

(iii)

The Secretary shall publish any determination made pursuant to this subparagraph in the Federal Register.

(5)

The Congress, by an Act of Congress, may block or revoke a designation made under paragraph (1).

(6)

(A)

The Secretary may revoke a designation made under paragraph (1) at any time, and shall revoke a designation upon completion of a review conducted pursuant to subparagraphs (B) and (C) of paragraph (4) if the Secretary finds that—

(i)

the group, club, organization, or association of 5 or more persons that has been designated as a criminal gang is no longer described in section 101(a)(53); or

(ii)

the national security or the law enforcement interests of the United States warrants a revocation.

(B)

The procedural requirements of paragraphs (2) and (3) shall apply to a revocation under this paragraph. Any revocation shall take effect on the date specified in the revocation or upon publication in the Federal Register if no effective date is specified.

(7)

The revocation of a designation under paragraph (5) or (6) shall not affect any action or proceeding based on conduct committed prior to the effective date of such revocation.

(8)

If a designation under this subsection has become effective under paragraph (2) an alien in a removal proceeding shall not be permitted to raise any question concerning the validity of the issuance of such designation as a defense or an objection.

(b)

(1)

The Secretary may amend a designation under this subsection if the Secretary finds that the group, club, organization, or association of 5 or more persons has changed its name, adopted a new alias, dissolved and then reconstituted itself under a different name or names, or merged with another group, club, organization, or association of 5 or more persons.

(2)

Amendments made to a designation in accordance with paragraph (1) shall be effective upon publication in the Federal Register. Paragraphs (2), (4), (5), (6), (7), and (8) of subsection (a) shall also apply to an amended designation.

(3)

The administrative record shall be corrected to include the amendments as well as any additional relevant information that supports those amendments.

(4)

The Secretary may consider classified information in amending a designation in accordance with this subsection. Classified information shall not be subject to disclosure for such time as it remains classified, except that such information may be disclosed to a court ex parte and in camera for purposes of judicial review under subsection (c) of this section.

(c)

(1)

Not later than 30 days after publication in the Federal Register of a designation, an amended designation, or a determination in response to a petition for revocation, the designated group, club, organization, or association of 5 or more persons may seek judicial review in the United States Court of Appeals for the District of Columbia Circuit.

(2)

Review under this subsection shall be based solely upon the administrative record, except that the Government may submit, for ex parte and in camera review, classified information used in making the designation, amended designation, or determination in response to a petition for revocation.

(3)

The Court shall hold unlawful and set aside a designation, amended designation, or determination in response to a petition for revocation the court finds to be—

(A)

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B)

contrary to constitutional right, power, privilege, or immunity;

(C)

in excess of statutory jurisdiction, authority, or limitation, or short of statutory right;

(D)

lacking substantial support in the administrative record taken as a whole or in classified information submitted to the court under paragraph (2); or

(E)

not in accord with the procedures required by law.

(4)

The pendency of an action for judicial review of a designation, amended designation, or determination in response to a petition for revocation shall not affect the application of this section, unless the court issues a final order setting aside the designation, amended designation, or determination in response to a petition for revocation.

(d)

As used in this section—

(1)

the term classified information has the meaning given that term in section 1(a) of the Classified Information Procedures Act (18 U.S.C. App.);

(2)

the term national security means the national defense, foreign relations, or economic interests of the United States;

(3)

the term relevant committees means the Committees on the Judiciary of the Senate and of the House of Representatives; and

(4)

the term Secretary means the Secretary of Homeland Security, in consultation with the Attorney General.

(2)

The table of contents for such Act is amended by inserting after the item relating to section 219 the following:

Sec. 220. Designation.

(e)

(1)

Section 236(c)(1) of the Immigration and Nationality Act (8 U.S.C. 1226(c)(1)), as amended by this title, is further amended—

(A)

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

(B)

in subparagraph (E), by inserting or at the end; and

(C)

by inserting after subparagraph (E) the following:

(F)

is inadmissible under section 212(a)(2)(J) or deportable under section 217(a)(2)(G),

(2)

Not later than March 1 of each year (beginning 1 year after the date of the enactment of this Act), the Secretary of Homeland Security, after consultation with the appropriate Federal agencies, shall submit a report to the Committees on the Judiciary of the House of Representatives and of the Senate on the number of aliens detained under the amendments made by paragraph (1).

(f)

(1)

Section 241(b)(3)(B) of the Immigration and Nationality Act (8 U.S.C. 1251(b)(3)(B)) is amended, in the matter preceding clause (i), by inserting who is described in section 212(a)(2)(J)(i) or section 237(a)(2)(G)(i) or who is after to an alien.

(2)

Section 208(b)(2)(A) of such Act (8 U.S.C. 1158(b)(2)(A)) is amended—

(A)

in clause (v), by striking or at the end;

(B)

by redesignating clause (vi) as clause (vii); and

(C)

by inserting after clause (v) the following:

(vi)

the alien is described in section 212(a)(2)(J)(i) or section 237(a)(2)(G)(i); or

(g)

Section 244 of such Act (8 U.S.C. 1254a) is amended—

(1)

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

(2)

in subparagraph (c)(2)(B)—

(A)

in clause (i), by striking or at the end;

(B)

in clause (ii), by striking the period and inserting ; or; and

(C)

by adding at the end the following:

(iii)

the alien is, or at any time has been, described in section 212(a)(2)(J) or section 237(a)(2)(G).

; and

(3)

in subsection (d)—

(A)

by striking paragraph (3); and

(B)

in paragraph (4), by adding at the end the following: The Secretary of Homeland Security may detain an alien provided temporary protected status under this section whenever appropriate under any other provision of law..

(h)

Section 101(a)(27)(J)(iii) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27)(J)(iii)) is amended—

(1)

in subclause (I), by striking and;

(2)

in subclause (II), by adding and at the end; and

(3)

by adding at the end the following:

(III)

no alien who is, or at any time has been, described in section 212(a)(2)(J) or section 237(a)(2)(G) shall be eligible for any immigration benefit under this subparagraph;

(i)

An alien described in section 212(a)(2)(J) of the Immigration and Nationality Act, as added by subsection (b), shall not be eligible for parole under section 212(d)(5)(A) of such Act unless—

(1)

the alien is assisting or has assisted the United States Government in a law enforcement matter, including a criminal investigation; and

(2)

the alien’s presence in the United States is required by the Government with respect to such assistance.

(j)

The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to acts that occur before, on, or after the date of the enactment of this Act.

3304.

(a)

Section 101(a)(43) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(43)), is amended—

(1)

in subparagraph (T), by striking and;

(2)

in subparagraph (U), by striking the period at the end and inserting ; and; and

(3)

by inserting after subparagraph (U) the following:

(V)

(i)

a single conviction for driving while intoxicated (including a conviction for driving while under the influence of or impairment by alcohol or drugs), when such impaired driving was a cause of the serious bodily injury or death of another person; or

(ii)

a second or subsequent conviction for driving while intoxicated (including a conviction for driving under the influence of or impaired by alcohol or drugs).

(b)

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

3305.

(a)

Section 101(a)(43) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(43)), as amended by this title, is further amended—

(1)

by striking The term aggravated felony means— and inserting Notwithstanding any other provision of law, the term aggravated felony applies to an offense described in this paragraph, whether in violation of Federal or State law, or in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years, even if the length of the term of imprisonment for the offense is based on recidivist or other enhancements and regardless of whether the conviction was entered before, on, or after September 30, 1996, and means—;

(2)

in subparagraph (A), by striking murder, rape, or sexual abuse of a minor; and inserting an offense relating to murder, manslaughter, homicide, rape (whether the victim was conscious or unconscious), statutory rape, or any offense of a sexual nature involving a victim under the age of 18 years;;

(3)

in subparagraph (B)—

(A)

by inserting an offense relating to before illicit trafficking; and

(B)

by inserting before the semicolon at the end the following: and any offense under State law relating to a controlled substance (as so classified under State law) which is classified as a felony in that State, regardless of whether the substance is classified as a controlled substance under section 102 of the Controlled Substances Act (8 U.S.C. 802);

(4)

in subparagraph (C), by inserting an offense relating to before illicit trafficking in firearms;

(5)

in subparagraph (I), by striking or 2252 and inserting 2252, or 2252A;

(6)

in subparagraph (F), by striking for which the term of imprisonment is at least one year; and inserting , including offenses of assault and battery under State or Federal law, for which the term of imprisonment is at least one year, except that if the conviction records do not conclusively establish whether a crime constitutes a crime of violence, the Attorney General or the Secretary of Homeland Security, as appropriate, may consider other evidence related to the conviction that establishes that the conduct for which the alien was engaged constitutes a crime of violence; ;

(7)

by striking subparagraph (G) and inserting the following:

(G)

an offense relating to a theft under State or Federal law (including theft by deceit, theft by fraud, and receipt of stolen property) regardless of whether any taking was temporary or permanent, or burglary offense under State or Federal law for which the term of imprisonment is at least one year, except that if the conviction records do not conclusively establish whether a crime constitutes a theft or burglary offense, the Attorney General or Secretary of Homeland Security, as appropriate, may consider other evidence related to the conviction that establishes that the conduct for which the alien was engaged constitutes a theft or burglary offense;

;

(8)

in subparagraph (N)—

(A)

by striking paragraph (1)(A) or (2) of; and

(B)

by inserting a semicolon at the end;

(9)

in subparagraph (O), by striking section 275(a) or 276 committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph and inserting section 275 or 276 for which the term of imprisonment is at least 1 year;

(10)

in subparagraph (P)—

(A)

by striking (i) which either is falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument in violation of section 1543 of title 18, United States Code, or is described in section 1546(a) of such title (relating to document fraud) and (ii) and inserting which is described in any section of chapter 75 of title 18, United States Code, and; and

(B)

by striking , except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent (and no other individual) to violate a provision of this Act;

(11)

in subparagraph (U), by striking an attempt or conspiracy to commit an offense described in this paragraph and inserting attempting or conspiring to commit an offense described in this paragraph, or aiding, abetting, counseling, procuring, commanding, inducing, or soliciting the commission of such an offense; and

(12)

by striking the undesignated matter following subparagraph (U).

(b)

(1)

The amendments made by subsection (a)—

(A)

shall take effect on the date of the enactment of this Act; and

(B)

shall apply to any act or conviction that occurred before, on, or after such date.

(2)

The amendments to section 101(a)(43) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(43)) made by section 321 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208; 110 Stat. 3009–627) shall continue to apply, whether the conviction was entered before, on, or after September 30, 1996.

3306.

(a)

Section 241(b)(3)(B) (8 U.S.C. 1231(b)(3)(B)), is amended by inserting after clause (v) the following:

(vi)

the alien is convicted of an aggravated felony.

(b)

The amendment made by subsection (a) shall apply—

(1)

to any act that occurred before, on, or after the date of the enactment of this Act; and

(2)

to all aliens who are required to establish admissibility on or after such date, and in all removal, deportation, or exclusion proceedings that are filed, pending, or reopened on or after such date.

3307.

(a)

Section 204(a)(1) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)), is amended—

(1)

in subparagraph (A), by amending clause (viii) to read as follows:

(viii)

Clause (i) shall not apply to a citizen of the United States who has been convicted of an offense described in subparagraph (A), (I), or (K) of section 101(a)(43), unless the Secretary of Homeland Security, in the Secretary's sole and unreviewable discretion, determines that the citizen poses no risk to the alien with respect to whom a petition described in clause (i) is filed.

; and

(2)

in subparagraph (B)(i)—

(A)

by redesignating the second subclause (I) as subclause (II); and

(B)

by amending such subclause (II) to read as follows:

(II)

Subclause (I) shall not apply in the case of an alien admitted for permanent residence who has been convicted of an offense described in subparagraph (A), (I), or (K) of section 101(a)(43), unless the Secretary of Homeland Security, in the Secretary's sole and unreviewable discretion, determines that the alien lawfully admitted for permanent residence poses no risk to the alien with respect to whom a petition described in subclause (I) is filed.

(b)

Section 101(a)(15)(K) of such Act (8 U.S.C. 1101(a)(15)(K)), is amended by striking 204(a)(1)(A)(viii)(I)) each place such term appears and inserting 204(a)(1)(A)(viii)).

(c)

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

3308.

(a)

Section 212(a)(2)(A) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(2)(A)) is amended by adding at the end the following:

(iii)

If the conviction records do not conclusively establish whether a crime constitutes a crime involving moral turpitude, the Attorney General or the Secretary of Homeland Security, as appropriate, may consider other evidence related to the conviction that establishes that the conduct for which the alien was engaged constitutes a crime involving moral turpitude.

(b)

(1)

Section 237(a)(2)(A) of such Act (8 U.S.C. 1227(a)(2)(A)), as amended by this title, is further amended by inserting after clause (iv) the following:

(v)

(2)

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

(iii)

If the conviction records do not conclusively establish whether a crime of domestic violence constitutes a crime of violence (as defined in section 16 of title 18, United States Code), the Attorney General or the Secretary of Homeland Security, as appropriate, may consider other evidence related to the conviction that establishes that the conduct for which the alien was engaged constitutes a crime of violence.

(c)

The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to acts that occur before, on, or after the date of the enactment of this Act.

3309.

Section 241(a) of the Immigration and Nationality Act (8 U.S.C. 1231(a)) is amended—

(1)

by striking Attorney General each place it appears, except for the first reference in paragraph (4)(B)(i), and inserting Secretary of Homeland Security;

(2)

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

(B)

The removal period begins on the latest of the following:

(i)

The date the order of removal becomes administratively final.

(ii)

If the alien is not in the custody of the Secretary on the date the order of removal becomes administratively final, the date the alien is taken into such custody.

(iii)

If the alien is detained or confined (except under an immigration process) on the date the order of removal becomes administratively final, the date the alien is taken into the custody of the Secretary, after the alien is released from such detention or confinement.

;

(3)

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

(C)

(i)

The removal period shall be extended beyond a period of 90 days and the Secretary may, in the Secretary’s sole discretion, keep the alien in detention during such extended period if—

(I)

the alien fails or refuses to make all reasonable efforts to comply with the removal order, or to fully cooperate with the Secretary’s efforts to establish the alien’s identity and carry out the removal order, including making timely application in good faith for travel or other documents necessary to the alien's departure or conspires or acts to prevent the alien's removal that is subject to an order of removal;

(II)

a court, the Board of Immigration Appeals, or an immigration judge orders a stay of removal of an alien who is subject to an administratively final order of removal;

(III)

the Secretary transfers custody of the alien pursuant to law to another Federal agency or a State or local government agency in connection with the official duties of such agency; or

(IV)

a court or the Board of Immigration Appeals orders a remand to an immigration judge or the Board of Immigration Appeals, during the time period when the case is pending a decision on remand (with the removal period beginning anew on the date that the alien is ordered removed on remand).

(ii)

If the removal period has been extended under subparagraph (C)(i), a new removal period shall be deemed to have begun on the date—

(I)

the alien makes all reasonable efforts to comply with the removal order, or to fully cooperate with the Secretary’s efforts to establish the alien’s identity and carry out the removal order;

(II)

the stay of removal is no longer in effect; or

(III)

the alien is returned to the custody of the Secretary.

(iii)

In the case of an alien described in subparagraphs (A) through (D) of section 236(c)(1), the Secretary shall keep that alien in detention during the extended period described in clause (i).

(iv)

An alien may seek relief from detention under this subparagraph only by filing an application for a writ of habeas corpus in accordance with chapter 153 of title 28, United States Code. No alien whose period of detention is extended under this subparagraph shall have the right to seek release on bond.

;

(4)

in paragraph (3)—

(A)

by adding after If the alien does not leave or is not removed within the removal period the following: or is not detained pursuant to paragraph (6) of this subsection; and

(B)

by striking subparagraph (D) and inserting the following:

(D)

to obey reasonable restrictions on the alien’s conduct or activities that the Secretary prescribes for the alien, in order to prevent the alien from absconding, for the protection of the community, or for other purposes related to the enforcement of the immigration laws.

;

(5)

in paragraph (4)(A), by striking paragraph (2) and inserting subparagraph (B); and

(6)

by striking paragraph (6) and inserting the following:

(6)

(A)

For an alien who is not otherwise subject to mandatory detention, who has made all reasonable efforts to comply with a removal order and to cooperate fully with the Secretary of Homeland Security's efforts to establish the alien's identity and carry out the removal order, including making timely application in good faith for travel or other documents necessary to the alien's departure, and who has not conspired or acted to prevent removal, the Secretary shall establish an administrative review process to determine whether the alien should be detained or released on conditions. The Secretary shall make a determination whether to release an alien after the removal period in accordance with subparagraph (B). The determination shall include consideration of any evidence submitted by the alien, and may include consideration of any other evidence, including any information or assistance provided by the Secretary of State or other Federal official and any other information available to the Secretary of Homeland Security pertaining to the ability to remove the alien.

(B)

(i)

The Secretary of Homeland Security, in the exercise of the Secretary’s sole discretion, may continue to detain an alien for 90 days beyond the removal period (including any extension of the removal period as provided in paragraph (1)(C)). An alien whose detention is extended under this subparagraph shall have no right to seek release on bond.

(ii)

The Secretary of Homeland Security, in the exercise of the Secretary’s sole discretion, may continue to detain an alien beyond the 90 days authorized in clause (i)—

(I)

until the alien is removed, if the Secretary, in the Secretary’s sole discretion, determines that there is a significant likelihood that the alien—

(aa)

will be removed in the reasonably foreseeable future; or

(bb)

would be removed in the reasonably foreseeable future, or would have been removed, but for the alien's failure or refusal to make all reasonable efforts to comply with the removal order, or to cooperate fully with the Secretary's efforts to establish the alien's identity and carry out the removal order, including making timely application in good faith for travel or other documents necessary to the alien's departure, or conspires or acts to prevent removal;

(II)

until the alien is removed, if the Secretary of Homeland Security certifies in writing—

(aa)

in consultation with the Secretary of Health and Human Services, that the alien has a highly contagious disease that poses a threat to public safety;

(bb)

after receipt of a written recommendation from the Secretary of State, that release of the alien is likely to have serious adverse foreign policy consequences for the United States;

(cc)

based on information available to the Secretary of Homeland Security (including classified, sensitive, or national security information, and without regard to the grounds upon which the alien was ordered removed), that there is reason to believe that the release of the alien would threaten the national security of the United States; or

(dd)

that the release of the alien will threaten the safety of the community or any person, conditions of release cannot reasonably be expected to ensure the safety of the community or any person, and either (AA) the alien has been convicted of one or more aggravated felonies (as defined in section 101(a)(43)(A)) or of one or more crimes identified by the Secretary of Homeland Security by regulation, or of one or more attempts or conspiracies to commit any such aggravated felonies or such identified crimes, if the aggregate term of imprisonment for such attempts or conspiracies is at least 5 years; or (BB) the alien has committed one or more crimes of violence (as defined in section 16 of title 18, United States Code, but not including a purely political offense) and, because of a mental condition or personality disorder and behavior associated with that condition or disorder, the alien is likely to engage in acts of violence in the future; or

(III)

pending a certification under subclause (II), so long as the Secretary of Homeland Security has initiated the administrative review process not later than 30 days after the expiration of the removal period (including any extension of the removal period, as provided in paragraph (1)(C)).

(iii)

An alien whose detention is extended under this subparagraph shall have no right to seek release on bond, including by reason of a certification under clause (ii)(II).

(C)

(i)

The Secretary of Homeland Security may renew a certification under subparagraph (B)(ii)(II) every 6 months, after providing an opportunity for the alien to request reconsideration of the certification and to submit documents or other evidence in support of that request. If the Secretary does not renew a certification, the Secretary may not continue to detain the alien under subparagraph (B)(ii)(II).

(ii)

Notwithstanding section 103, the Secretary of Homeland Security may not delegate the authority to make or renew a certification described in item (bb), (cc), or (dd) of subparagraph (B)(ii)(II) below the level of the Director of Immigration and Customs Enforcement.

(iii)

The Secretary of Homeland Security may request that the Attorney General or the Attorney General's designee provide for a hearing to make the determination described in item (dd)(BB) of subparagraph (B)(ii)(II).

(D)

If it is determined that an alien should be released from detention by a Federal court, the Board of Immigration Appeals, or if an immigration judge orders a stay of removal, the Secretary of Homeland Security, in the exercise of the Secretary's discretion, may impose conditions on release as provided in paragraph (3).

(E)

The Secretary of Homeland Security, in the exercise of the Secretary's discretion, without any limitations other than those specified in this section, may again detain any alien subject to a final removal order who is released from custody, if removal becomes likely in the reasonably foreseeable future, the alien fails to comply with the conditions of release, or to continue to satisfy the conditions described in subparagraph (A), or if, upon reconsideration, the Secretary, in the Secretary’s sole discretion, determines that the alien can be detained under subparagraph (B). This section shall apply to any alien returned to custody pursuant to this subparagraph, as if the removal period terminated on the day of the redetention.

(F)

A determination by the Secretary under this paragraph shall not be subject to review by any other agency.

3310.

(a)

Beginning on the date that is 6 months after the date of the enactment of this Act, and every 6 months thereafter, the Secretary of Homeland Security shall publish a report including the following:

(1)

A list of the following:

(A)

Countries that have refused or unreasonably delayed repatriation of an alien who is a national of that country since the date of the enactment of this Act and the total number of such aliens, disaggregated by nationality.

(B)

Countries that have an excessive repatriation failure rate.

(2)

A list of each country that was included under subparagraph (B) or (C) of paragraph (1) in both the report preceding the current report and the current report.

(b)

Beginning on the date on which a country is included in a list under subsection (a)(2) and ending on the date on which that country is not included in such list, that country shall be subject to the following:

(1)

The Secretary of State may not issue visas under section 101(a)(15)(A)(iii) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(A)(iii)) to attendants, servants, personal employees, and members of their immediate families, of the officials and employees of that country who receive nonimmigrant status under clause (i) or (ii) of section 101(a)(15)(A) of such Act.

(2)

Each 6 months thereafter that the country is included in that list, the Secretary of State shall reduce the number of visas available under clause (i) or (ii) of section 101(a)(15)(A) of the Immigration and Nationality Act in a fiscal year to nationals of that country by an amount equal to 10 percent of the baseline visa number for that country. Except as provided under section 243(d) of the Immigration and Nationality Act (8 U.S.C. 1253), the Secretary may not reduce the number to a level below 20 percent of the baseline visa number.

(c)

(1)

If the Secretary of State submits to Congress a written determination that significant national security interests of the United States require a waiver of the sanctions under subsection (b), the Secretary may waive any reduction below 80 percent of the baseline visa number. The Secretary of Homeland Security may not delegate the authority under this subsection.

(2)

If the Secretary of State submits to Congress a written determination that temporary exigent circumstances require a waiver of the sanctions under subsection (b), the Secretary may waive any reduction below 80 percent of the baseline visa number during 6-month renewable periods. The Secretary of Homeland Security may not delegate the authority under this subsection.

(d)

The Secretary of Homeland Security, in consultation with the Secretary of State, may exempt a country from inclusion in a list under subsection (a)(2) if the total number of nonrepatriations outstanding is less than 10 for the preceding 3-year period.

(e)

Any visa issued in violation of this section shall be void.

(f)

If an alien who has been convicted of a criminal offense before a Federal or State court whose repatriation was refused or unreasonably delayed is to be released from detention by the Secretary of Homeland Security, the Secretary shall provide notice to the State and local law enforcement agency for the jurisdictions in which the alien is required to report or is to be released. When possible, and particularly in the case of violent crime, the Secretary shall make a reasonable effort to provide notice of such release to any crime victims and their immediate family members.

(g)

For purposes of this section:

(1)

A country is deemed to have refused or unreasonably delayed the acceptance of an alien who is a citizen, subject, national, or resident of that country if, not later than 90 days after receiving a request to repatriate such alien from an official of the United States who is authorized to make such a request, the country does not accept the alien or issue valid travel documents.

(2)

The term failure rate for a period means the percentage determined by dividing the total number of repatriation requests for aliens who are citizens, subjects, nationals, or residents of a country that that country refused or unreasonably delayed during that period by the total number of such requests during that period.

(3)

The term excessive repatriation failure rate means, with respect to a report under subsection (a), a failure rate greater than 10 percent for any of the following:

(A)

The period of the 3 full fiscal years preceding the date of publication of the report.

(B)

The period of 1 year preceding the date of publication of the report.

(4)

The term number of nonrepatriations outstanding means, for a period, the number of unique aliens whose repatriation a country has refused or unreasonably delayed and whose repatriation has not occurred during that period.

(5)

The term baseline visa number means, with respect to a country, the average number of visas issued each fiscal year to nationals of that country under clauses (i) and (ii) of section 101(a)(15)(A) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(A)) for the 3 full fiscal years immediately preceding the first report under subsection (a) in which that country is included in the list under subsection (a)(2).

(h)

On the date that is 1 day after the date that the President submits a budget under section 1105(a) of title 31, United States Code, for fiscal year 2016, the Comptroller General of the United States shall submit a report to Congress regarding the progress of the Secretary of Homeland Security and the Secretary of State in implementation of this section and in making requests to repatriate aliens as appropriate.

3311.

Section 276 of the Immigration and Nationality Act (8 U.S.C. 1326) is amended to read as follows:

276.

(a)

(1)

Any alien who has been denied admission, excluded, deported, or removed, or who has departed the United States while an order of exclusion, deportation, or removal is outstanding, and subsequently enters, attempts to enter, crosses the border to, attempts to cross the border to, or is at any time found in the United States, shall be fined under title 18, United States Code, imprisoned not more than 2 years, or both.

(2)

If an alien sought and received the express consent of the Secretary to reapply for admission into the United States, or, with respect to an alien previously denied admission and removed, the alien was not required to obtain such advance consent under the Immigration and Nationality Act or any prior Act, the alien shall not be subject to the fine and imprisonment provided for in paragraph (1).

(b)

Notwithstanding the penalty provided in subsection (a), if an alien described in that subsection was convicted before such removal or departure—

(1)

for 3 or more misdemeanors or for a felony, the alien shall be fined under title 18, United States Code, imprisoned not more than 10 years, or both;

(2)

for a felony for which the alien was sentenced to a term of imprisonment of not less than 30 months, the alien shall be fined under such title, imprisoned not more than 15 years, or both;

(3)

for a felony for which the alien was sentenced to a term of imprisonment of not less than 60 months, the alien shall be fined under such title, imprisoned not more than 20 years, or both; or

(4)

for murder, rape, kidnapping, or a felony offense described in chapter 77 (relating to peonage and slavery) or 113B (relating to terrorism) of such title, or for 3 or more felonies of any kind, the alien shall be fined under such title, imprisoned not more than 25 years, or both.

(c)

Any alien who has been denied admission, excluded, deported, or removed 3 or more times and thereafter enters, attempts to enter, crosses the border to, attempts to cross the border to, or is at any time found in the United States, shall be fined under title 18, United States Code, imprisoned not more than 10 years, or both.

(d)

The prior convictions described in subsection (b) are elements of the crimes described, and the penalties in that subsection shall apply only in cases in which the conviction or convictions that form the basis for the additional penalty are—

(1)

alleged in the indictment or information; and

(2)

proven beyond a reasonable doubt at trial or admitted by the defendant.

(e)

Any alien removed pursuant to section 241(a)(4) who enters, attempts to enter, crosses the border to, attempts to cross the border to, or is at any time found in, the United States shall be incarcerated for the remainder of the sentence of imprisonment which was pending at the time of deportation without any reduction for parole or supervised release unless the alien affirmatively demonstrates that the Secretary of Homeland Security has expressly consented to the alien’s reentry. Such alien shall be subject to such other penalties relating to the reentry of removed aliens as may be available under this section or any other provision of law.

(f)

For purposes of this section and section 275, the following definitions shall apply:

(1)

The term crosses the border refers to the physical act of crossing the border free from official restraint.

(2)

The term official restraint means any restraint known to the alien that serves to deprive the alien of liberty and prevents the alien from going at large into the United States. Surveillance unbeknownst to the alien shall not constitute official restraint.

(3)

The term felony means any criminal offense punishable by a term of imprisonment of more than 1 year under the laws of the United States, any State, or a foreign government.

(4)

The term misdemeanor means any criminal offense punishable by a term of imprisonment of not more than 1 year under the applicable laws of the United States, any State, or a foreign government.

(5)

The term removal includes any denial of admission, exclusion, deportation, or removal, or any agreement by which an alien stipulates or agrees to exclusion, deportation, or removal.

(6)

The term State means a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.

4401.

Section 292 of the Immigration and Nationality Act (8 U.S.C. 1362) is amended—

(1)

by striking In any removal proceedings before an immigration judge and in any appeal proceedings before the Attorney General from any such removal proceedings and inserting In any removal proceedings before an immigration judge, or any other immigration proceedings before the Attorney General, the Secretary of Homeland Security, or any appeal of such a proceeding.

(2)

by striking (at no expense to the Government); and

(3)

by adding at the end the following Notwithstanding any other provision of law, in no instance shall the Government bear any expense for counsel for any person in proceedings described in this section..

4402.

Section 235(b)(1)(B)(v) of the Immigration and Nationality Act (8 U.S.C. 1225(b)(1)(B)(v)) is amended by striking claim and all that follows, and inserting claim, as determined pursuant to section 208(b)(1)(B)(iii), and such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 1158 of this title, and it is more probable than not that the statements made by, and on behalf of, the alien in support of the alien’s claim are true..

4403.

(a)

The Secretary of Homeland Security shall establish quality assurance procedures and take steps to effectively ensure that questions by employees of the Department of Homeland Security exercising expedited removal authority under section 235(b) of the Immigration and Nationality Act (8 U.S.C. 1225(b)) are asked in a uniform manner, to the extent possible, and that both these questions and the answers provided in response to them are recorded in a uniform fashion.

(b)

Where practicable, any sworn or signed written statement taken of an alien as part of the record of a proceeding under section 235(b)(1)(A) of the Immigration and Nationality Act (8 U.S.C. 1225(b)(1)(A)) shall be accompanied by a recording of the interview which served as the basis for that sworn statement.

(c)

The Secretary shall ensure that a competent interpreter, not affiliated with the government of the country from which the alien may claim asylum, is used when the interviewing officer does not speak a language understood by the alien.

(d)

There shall be an audio or audio visual recording of interviews of aliens subject to expedited removal. The recording shall be included in the record of proceeding and shall be considered as evidence in any further proceedings involving the alien.

(e)

Nothing in this section shall be construed to create any right, benefit, trust, or responsibility, whether substantive or procedural, enforceable in law or equity by a party against the United States, its departments, agencies, instrumentalities, entities, officers, employees, or agents, or any person, nor does this section create any right of review in any administrative, judicial, or other proceeding.

4404.

Section 208(a)(2)(A) of the Immigration and Nationality Act (8 U.S.C. 1158(a)(2)(A)) is amended—

(1)

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

(2)

by striking removed, pursuant to a bilateral or multilateral agreement, to and inserting removed to.

4405.

(a)

Section 208(c) of the Immigration and Nationality Act (8 U.S.C. 1158(c)) is amended by adding at the end the following new paragraph:

(4)

(A)

Except as provided in subparagraphs (B) and (C), any alien who is granted asylum status under this Act, who, absent changed country conditions, subsequently returns to the country of such alien’s nationality or, in the case of an alien having no nationality, returns to any country in which such alien last habitually resided, and who applied for such status because of persecution or a well-founded fear of persecution in that country on account of race, religion, nationality, membership in a particular social group, or political opinion, shall have his or her status terminated.

(B)

The Secretary has discretion to waive subparagraph (A) if it is established to the satisfaction of the Secretary that the alien had a compelling reason for the return. The waiver may be sought prior to departure from the United States or upon return.

(C)

Subparagraph (A) shall not apply to an alien who is eligible for adjustment to that of an alien lawfully admitted for permanent residence pursuant to the Cuban Adjustment Act of 1966 (Public Law 89–732).

(b)

Section 208(c)(3) of the Immigration and Nationality Act (8 U.S.C. 1158(c)(3)) is amended by inserting after paragraph (2) the following: or (4).

4406.

(a)

Section 208(d)(4) of the Immigration and Nationality Act (8 U.S.C. 1158(d)(4)) is amended—

(1)

in the matter preceding subparagraph (A), by inserting the Secretary of Homeland Security or before the Attorney General;

(2)

in subparagraph (A), by striking and of the consequences, under paragraph (6), of knowingly filing a frivolous application for asylum; and and inserting a semicolon;

(3)

in subparagraph (B), by striking the period and inserting ; and; and

(4)

by adding at the end the following:

(C)

ensure that a written warning appears on the asylum application advising the alien of the consequences of filing a frivolous application and serving as notice to the alien of the consequence of filing a frivolous application.

(b)

Section 208(d)(6) of the Immigration and Nationality Act (8 U.S.C. 1158(d)(6)) is amended by striking If the and all that follows and inserting:

(A)

If the Secretary of Homeland Security or the Attorney General determines that an alien has knowingly made a frivolous application for asylum and the alien has received the notice under paragraph (4)(C), the alien shall be permanently ineligible for any benefits under this chapter, effective as the date of the final determination of such an application;

(B)

An application is frivolous if the Secretary of Homeland Security or the Attorney General determines, consistent with subparagraph (C), that—

(i)

it is so insufficient in substance that it is clear that the applicant knowingly filed the application solely or in part to delay removal from the United States, to seek employment authorization as an applicant for asylum pursuant to regulations issued pursuant to paragraph (2), or to seek issuance of a Notice to Appeal in order to pursue Cancellation of Removal under section 240A(b); or

(ii)

any of its material elements are deliberately fabricated.

(C)

In determining that an application is frivolous, the Secretary or the Attorney General, must be satisfied that the applicant, during the course of the proceedings, has had sufficient opportunity to clarify any discrepancies or implausible aspects of the claim.

(D)

For purposes of this section, a finding that an alien filed a frivolous asylum application shall not preclude the alien from seeking withholding of removal under section 241(b)(3).) or protection pursuant to the Convention Against Torture.

4407.

(a)

Section 208(b)(1)(B)(iii) of the Immigration and Nationality Act (8 U.S.C. 1158(b)(1)(B)(iii)) is amended by inserting after all relevant factors the following: , including statements made to, and investigative reports prepared by, immigration authorities and other government officials.

(b)

Section 240(c)(4)(C) of the Immigration and Nationality Act (8 U.S.C. 1229a(c)(4)(C)) is amended by inserting after all relevant factors the following: , including statements made to, and investigative reports prepared by, immigration authorities and other government officials.

4408.

Section 1001 of title 18 is amended by inserting at the end of the paragraph—

(d)

Whoever, in any matter before the Secretary of Homeland Security or the Attorney General pertaining to asylum under section 208 of the Immigration and Nationality Act or withholding of removal under section 241(b)(3) of such Act, knowingly and willfully—

(1)

makes any materially false, fictitious, or fraudulent statement or representation; or

(2)

makes or uses any false writings or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

shall be fined under this title or imprisoned not more than 10 years, or both.

4409.

Section 3291 of title 18 is amended—

(1)

by striking 1544, and inserting 1544 and 1546,;

(2)

by striking offense. and inserting offense or within 10 years after the fraud is discovered..

4410.

Section 208 of the Immigration and Nationality Act (8 U.S.C. 1158) is amended—

(1)

in subsection (a)—

(A)

in paragraph (2)(D), by inserting Secretary of Homeland Security or the before Attorney General; and

(B)

in paragraph (3), by inserting Secretary of Homeland Security or the before Attorney General;

(2)

in subsection (b)(2), by inserting Secretary of Homeland Security or the before Attorney General each place such term appears;

(3)

in subsection (c)—

(A)

in paragraph (1), by striking Attorney General each place such term appears and inserting Secretary of Homeland Security; and

(B)

in paragraph (3), by inserting Secretary of Homeland Security or the before Attorney General; and

(4)

in subsection (d)—

(A)

in paragraph (1), by inserting Secretary of Homeland Security or the before Attorney General each place such term appears;

(B)

in paragraph (2), by striking Attorney General and inserting Secretary of Homeland Security; and

(C)

in paragraph (5)—

(i)

in subparagraph (A), by striking Attorney General and inserting Secretary of Homeland Security; and

(ii)

in subparagraph (B), by inserting Secretary of Homeland Security or the before Attorney General.

5501.

(a)

Section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232) is amended—

(1)

in subsection (a)—

(A)

in paragraph (2)—

(i)

by amending the heading to read as follows: Rules for unaccompanied alien children.—;

(ii)

in subparagraph (A)—

(I)

in the matter preceding clause (i), by striking who is a national or habitual resident of a country that is contiguous with the United States;

(II)

in clause (i), by inserting and at the end;

(III)

in clause (ii), by striking ; and and inserting a period; and

(IV)

by striking clause (iii);

(iii)

in subparagraph (B)—

(I)

in the matter preceding clause (i), by striking (8 U.S.C. 1101 et seq.) may— and inserting (8 U.S.C. 1101 et seq.)—;

(II)

in clause (i), by inserting before permit such child to withdraw the following: may; and

(III)

in clause (ii), by inserting before return such child the following: shall; and

(iv)

in subparagraph (C)—

(I)

by amending the heading to read as follows: Agreements with foreign countries.—; and

(II)

in the matter preceding clause (i), by striking The Secretary of State shall negotiate agreements between the United States and countries contiguous to the United States and inserting The Secretary of State may negotiate agreements between the United States and any foreign country that the Secretary determines appropriate;

(B)

by redesignating paragraphs (3) through (5) as paragraphs (4) through (6), respectively, and inserting after paragraph (2) the following:

(3)

An unaccompanied alien child shall be interviewed by a dedicated U.S. Citizenship and Immigration Services immigration officer with specialized training in interviewing child trafficking victims. Such officer shall be in plain clothes and shall not carry a weapon. The interview shall occur in a private room.

; and

(C)

in paragraph (6)(D) (as so redesignated)—

(i)

in the matter preceding clause (i), by striking , except for an unaccompanied alien child from a contiguous country subject to exceptions under subsection (a)(2), and inserting who does not meet the criteria listed in paragraph (2)(A); and

(ii)

in clause (i), by inserting before the semicolon at the end the following: , which shall include a hearing before an immigration judge not later than 14 days after being screened under paragraph (4);

(2)

in subsection (b)—

(A)

in paragraph (2)—

(i)

in subparagraph (A), by inserting before the semicolon the following: believed not to meet the criteria listed in subsection (a)(2)(A); and

(ii)

in subparagraph (B), by inserting before the period the following: and does not meet the criteria listed in subsection (a)(2)(A); and

(B)

in paragraph (3), by striking an unaccompanied alien child in custody shall and all that follows, and inserting the following:

an unaccompanied alien child in custody—

(A)

in the case of a child who does not meet the criteria listed in subsection (a)(2)(A), shall transfer the custody of such child to the Secretary of Health and Human Services not later than 30 days after determining that such child is an unaccompanied alien child who does not meet such criteria; or

(B)

in the case of child who meets the criteria listed in subsection (a)(2)(A), may transfer the custody of such child to the Secretary of Health and Human Services after determining that such child is an unaccompanied alien child who meets such criteria.

; and

(3)

in subsection (c)—

(A)

in paragraph (3), by inserting at the end the following:

(D)

(i)

Before placing a child with an individual, the Secretary of Health and Human Services shall provide to the Secretary of Homeland Security, regarding the individual with whom the child will be placed, the following information:

(I)

The name of the individual.

(II)

The social security number of the individual.

(III)

The date of birth of the individual.

(IV)

The location of the individual’s residence where the child will be placed.

(V)

The immigration status of the individual, if known.

(VI)

Contact information for the individual.

(ii)

In the case of a child who was apprehended on or after June 15, 2012, and before the date of the enactment of this subparagraph, who the Secretary of Health and Human Services placed with an individual, the Secretary shall provide the information listed in clause (i) to the Secretary of Homeland Security not later than 90 days after such date of enactment.

(iii)

Not later than 30 days after receiving the information listed in clause (i), the Secretary of Homeland Security shall—

(I)

in the case that the immigration status of an individual with whom a child is placed is unknown, investigate the immigration status of that individual; and

(II)

upon determining that an individual with whom a child is placed is unlawfully present in the United States, initiate removal proceedings pursuant to chapter 4 of title II of the Immigration and Nationality Act (8 U.S.C. 1221 et seq.).

; and

(B)

in paragraph (5)—

(i)

by inserting after to the greatest extent practicable the following: (at no expense to the Government); and

(ii)

by striking have counsel to represent them and inserting have access to counsel to represent them.

(b)

The amendments made by this section shall apply to any unauthorized alien child apprehended on or after June 15, 2012.

5502.

Section 101(a)(27)(J)(i) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27)(J)(i)) is amended by striking 1 or both of the immigrant’s parents and inserting either of the immigrant’s parents.

5503.

Section 208(b)(3) of the Immigration and Nationality Act (8 U.S.C. 1158) is amended by striking subparagraph (C).

5504.

Not later than January 5, 2019, and every 3 months thereafter—

(1)

the Attorney General shall submit a report on—

(A)

the total number of asylum cases filed by unaccompanied alien children and completed by an immigration judge during the 3-month period preceding the date of the report, and the percentage of those cases in which asylum was granted; and

(B)

the number of unaccompanied alien children who failed to appear for any proceeding before an immigration judge during the 3-month period preceding the date of the report; and

(2)

the Secretary of Homeland Security shall submit a report on the total number of applications for asylum, filed by unaccompanied alien children, that were adjudicated during the 3-month period preceding the date of the report and the percentage of those applications that were granted.

5505.

Not later than January 5, 2019, and every 6 months thereafter, the Attorney General shall submit a report to Congress on each crime for which an unaccompanied alien child is charged or convicted during the previous 6-month period following their release from the custody of the Secretary of Homeland Security pursuant to section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232).

5506.

(a)

Section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232) is amended by adding at the end the following:

(j)

(1)

Notwithstanding any other provision of law, judicial determination, consent decree, or settlement agreement, the detention of any alien child who is not an unaccompanied alien child shall be governed by sections 217, 235, 236, and 241 of the Immigration and Nationality Act (8 U.S.C. 1187, 1225, 1226, and 1231). There exists no presumption that an alien child who is not an unaccompanied alien child should not be detained, and all such determinations shall be in the discretion of the Secretary of Homeland Security.

(2)

In no circumstances shall an alien minor who is not an unaccompanied alien child be released by the Secretary of Homeland Security other than to a parent or legal guardian.

(b)

The amendment made by subsection (a) shall take effect on the date of the enactment of this Act and shall apply to all actions that occur before, on, or after the date of the enactment of this Act.

1100.

This division may be cited as the Border Security for America Act of 2018 .

1101.

In this title:

(1)

The term advanced unattended surveillance sensors means sensors that utilize an onboard computer to analyze detections in an effort to discern between vehicles, humans, and animals, and ultimately filter false positives prior to transmission.

(2)

The term appropriate congressional committee has the meaning given the term in section 2(2) of the Homeland Security Act of 2002 (6 U.S.C. 101(2)).

(3)

The term Commissioner means the Commissioner of U.S. Customs and Border Protection.

(4)

The term high traffic areas has the meaning given such term in section 102(e)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as amended by section 1111 of this division.

(5)

The term operational control has the meaning given such term in section 2(b) of the Secure Fence Act of 2006 (8 U.S.C. 1701 note; Public Law 109–367).

(6)

The term Secretary means the Secretary of Homeland Security.

(7)

The term situational awareness has the meaning given such term in section 1092(a)(7) of the National Defense Authorization Act for Fiscal Year 2017 (Public Law 114–328; 6 U.S.C. 223(a)(7)).

(8)

The term small unmanned aerial vehicle has the meaning given the term small unmanned aircraft in section 331 of the FAA Modernization and Reform Act of 2012 (Public Law 112–95; 49 U.S.C. 40101 note).

(9)

The term transit zone has the meaning given such term in section 1092(a)(8) of the National Defense Authorization Act for Fiscal Year 2017 (Public Law 114–328; 6 U.S.C. 223(a)(7)).

(10)

The term unmanned aerial system has the meaning given the term unmanned aircraft system in section 331 of the FAA Modernization and Reform Act of 2012 (Public Law 112–95; 49 U.S.C. 40101 note).

(11)

The term unmanned aerial vehicle has the meaning given the term unmanned aircraft in section 331 of the FAA Modernization and Reform Act of 2012 (Public Law 112–95; 49 U.S.C. 40101 note).

1111.

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

(1)

by amending subsection (a) to read as follows:

(a)

The Secretary of Homeland Security shall take such actions as may be necessary (including the removal of obstacles to detection of illegal entrants) to design, test, construct, install, deploy, and operate physical barriers, tactical infrastructure, and technology in the vicinity of the United States border to achieve situational awareness and operational control of the border and deter, impede, and detect illegal activity in high traffic areas.

;

(2)

in subsection (b)—

(A)

in the subsection heading, by striking fencing and road improvements and inserting physical barriers;

(B)

in paragraph (1)—

(i)

in subparagraph (A)—

(I)

by striking subsection (a) and inserting this section;

(II)

by striking roads, lighting, cameras, and sensors and inserting tactical infrastructure, and technology; and

(III)

by striking gain inserting achieve situational awareness and; and

(ii)

by amending subparagraph (B) to read as follows:

(B)

(i)

Not later than September 30, 2022, the Secretary of Homeland Security, in carrying out this section, shall deploy along the United States border the most practical and effective physical barriers and tactical infrastructure available for achieving situational awareness and operational control of the border.

(ii)

The deployment of physical barriers and tactical infrastructure under this subparagraph shall not apply in any area or region along the border where natural terrain features, natural barriers, or the remoteness of such area or region would make any such deployment ineffective, as determined by the Secretary, for the purposes of achieving situational awareness or operational control of such area or region.

;

(iii)

in subparagraph (C)—

(I)

by amending clause (i) to read as follows:

(i)

In carrying out this section, the Secretary of Homeland Security shall, before constructing physical barriers in a specific area or region, consult with the Secretary of the Interior, the Secretary of Agriculture, appropriate representatives of Federal, State, local, and tribal governments, and appropriate private property owners in the United States to minimize the impact on the environment, culture, commerce, and quality of life for the communities and residents located near the sites at which such physical barriers are to be constructed.

;

(II)

by redesignating clause (ii) as clause (iii); and

(III)

by inserting after clause (i), as amended, the following new clause:

(ii)

Not later than 60 days after the consultation required under clause (i), the Secretary of Homeland Security shall notify the Committee on Homeland Security of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate of the type of physical barriers, tactical infrastructure, or technology the Secretary has determined is most practical and effective to achieve situational awareness and operational control in a specific area or region and the other alternatives the Secretary considered before making such a determination.

; and

(iv)

by striking subparagraph (D);

(C)

in paragraph (2)—

(i)

by striking Attorney General and inserting Secretary of Homeland Security;

(ii)

by striking this subsection and inserting this section; and

(iii)

by striking construction of fences and inserting the construction of physical barriers; and

(D)

by amending paragraph (3) to read as follows:

(3)

In carrying out this section, the Secretary of Homeland Security, when designing, constructing, and deploying physical barriers, tactical infrastructure, or technology, shall incorporate such safety features into such design, construction, or deployment of such physical barriers, tactical infrastructure, or technology, as the case may be, that the Secretary determines, in the Secretary’s sole discretion, are necessary to maximize the safety and effectiveness of officers or agents of the Department of Homeland Security or of any other Federal agency deployed in the vicinity of such physical barriers, tactical infrastructure, or technology.

;

(3)

in subsection (c), by amending paragraph (1) to read as follows:

(1)

Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive all legal requirements the Secretary, in the Secretary’s sole discretion, determines necessary to ensure the expeditious design, testing, construction, installation, deployment, operation, and maintenance of the physical barriers, tactical infrastructure, and technology under this section. Any such decision by the Secretary shall be effective upon publication in the Federal Register.

; and

(4)

by adding after subsection (d) the following new subsections:

(e)

Not later than September 30, 2022, the Secretary of Homeland Security, in carrying out this section, shall deploy along the United States border the most practical and effective technology available for achieving situational awareness and operational control of the border.

(f)

Nothing in this section may be construed as requiring the Secretary of Homeland Security to install tactical infrastructure, technology, and physical barriers 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 appropriate means to achieve and maintain situational awareness and operational control over the international border at such location.

(g)

In this section:

(1)

The term high traffic areas means areas in the vicinity of the United States border that—

(A)

are within the responsibility of U.S. Customs and Border Protection; and

(B)

have significant unlawful cross-border activity, as determined by the Secretary of Homeland Security.

(2)

The term operational control has the meaning given such term in section 2(b) of the Secure Fence Act of 2006 (8 U.S.C. 1701 note; Public Law 109–367).

(3)

The term physical barriers includes reinforced fencing, border wall system, and levee walls.

(4)

The term situational awareness has the meaning given such term in section 1092(a)(7) of the National Defense Authorization Act for Fiscal Year 2017 (Public Law 114–328).

(5)

The term tactical infrastructure includes boat ramps, access gates, checkpoints, lighting, and roads.

(6)

The term technology includes border surveillance and detection technology, including the following:

(A)

Tower-based surveillance technology.

(B)

Deployable, lighter-than-air ground surveillance equipment.

(C)

Vehicle and Dismount Exploitation Radars (VADER).

(D)

3-dimensional, seismic acoustic detection and ranging border tunneling detection technology.

(E)

Advanced unattended surveillance sensors.

(F)

Mobile vehicle-mounted and man-portable surveillance capabilities.

(G)

Unmanned aerial vehicles.

(H)

Other border detection, communication, and surveillance technology.

(7)

The term unmanned aerial vehicle has the meaning given the term unmanned aircraft in section 331 of the FAA Modernization and Reform Act of 2012 (Public Law 112–95; 49 U.S.C. 40101 note).

1112.

(a)

The Secretary, after coordination with the Administrator of the Federal Aviation Administration, shall ensure that not fewer than 95,000 annual flight hours are carried out by Air and Marine Operations of U.S. Customs and Border Protection.

(b)

The Secretary shall ensure that Air and Marine Operations operate unmanned aerial systems on the southern border of the United States for not less than 24 hours per day for five days per week.

(c)

The Commissioner shall contract for the unfulfilled identified air support mission critical hours, as identified by the Chief of the U.S. Border Patrol.

(d)

The Commissioner shall ensure that—

(1)

the primary missions for Air and Marine Operations are to directly support U.S. Border Patrol activities along the southern border of the United States and Joint Interagency Task Force South operations in the transit zone; and

(2)

the Executive Assistant Commissioner of Air and Marine Operations assigns the greatest priority to support missions established by the Commissioner to carry out the requirements under this Act.

(e)

In accordance with subsection (d), the Commissioner shall ensure that U.S. Border Patrol Sector Chiefs—

(1)

identify critical flight hour requirements; and

(2)

direct Air and Marine Operations to support requests from Sector Chiefs as their primary mission.

(f)

(1)

The Chief of the U.S. Border Patrol shall be the executive agent for U.S. Customs and Border Protection’s use of small unmanned aerial vehicles for the purpose of meeting the U.S. Border Patrol’s unmet flight hour operational requirements and to achieve situational awareness and operational control.

(2)

In carrying out paragraph (1), the Chief of the U.S. Border Patrol shall—

(A)

coordinate flight operations with the Administrator of the Federal Aviation Administration to ensure the safe and efficient operation of the National Airspace System; and

(B)

coordinate with the Executive Assistant Commissioner for Air and Marine Operations of U.S. Customs and Border Protection to ensure the safety of other U.S. Customs and Border Protection aircraft flying in the vicinity of small unmanned aerial vehicles operated by the U.S. Border Patrol.

(3)

Paragraph (3) of section 411(e) of the Homeland Security Act of 2002 (6 U.S.C. 211(e)) is amended—

(A)

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

(B)

by redesignating subparagraph (C) as subparagraph (D); and

(C)

by inserting after subparagraph (B) the following new subparagraph:

(C)

carry out the small unmanned aerial vehicle requirements pursuant to subsection (f) of section 1112 of the Border Security for America Act of 2018; and

(g)

Nothing in this section shall confer, transfer, or delegate to the Secretary, the Commissioner, the Executive Assistant Commissioner for Air and Marine Operations of U.S. Customs and Border Protection, or the Chief of the U.S. Border Patrol any authority of the Secretary of Transportation or the Administrator of the Federal Aviation Administration relating to the use of airspace or aviation safety.

1113.

(a)

Not later than September 30, 2022, the Secretary, in implementing section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (as amended by section 1111 of this division), and acting through the appropriate component of the Department of Homeland Security, shall deploy to each sector or region of the southern border and the northern border, in a prioritized manner to achieve situational awareness and operational control of such borders, the following additional capabilities:

(1)

For the San Diego sector, the following:

(A)

Tower-based surveillance technology.

(B)

Subterranean surveillance and detection technologies.

(C)

To increase coastal maritime domain awareness, the following:

(i)

Deployable, lighter-than-air surface surveillance equipment.

(ii)

Unmanned aerial vehicles with maritime surveillance capability.

(iii)

U.S. Customs and Border Protection maritime patrol aircraft.

(iv)

Coastal radar surveillance systems.

(v)

Maritime signals intelligence capabilities.

(D)

Ultralight aircraft detection capabilities.

(E)

Advanced unattended surveillance sensors.

(F)

A rapid reaction capability supported by aviation assets.

(G)

Mobile vehicle-mounted and man-portable surveillance capabilities.

(H)

Man-portable unmanned aerial vehicles.

(I)

Improved agent communications capabilities.

(2)

For the El Centro sector, the following:

(A)

Tower-based surveillance technology.

(B)

Deployable, lighter-than-air ground surveillance equipment.

(C)

Man-portable unmanned aerial vehicles.

(D)

Ultralight aircraft detection capabilities.

(E)

Advanced unattended surveillance sensors.

(F)

A rapid reaction capability supported by aviation assets.

(G)

Man-portable unmanned aerial vehicles.

(H)

Improved agent communications capabilities.

(3)

For the Yuma sector, the following:

(A)

Tower-based surveillance technology.

(B)

Deployable, lighter-than-air ground surveillance equipment.

(C)

Ultralight aircraft detection capabilities.

(D)

Advanced unattended surveillance sensors.

(E)

A rapid reaction capability supported by aviation assets.

(F)

Mobile vehicle-mounted and man-portable surveillance systems.

(G)

Man-portable unmanned aerial vehicles.

(H)

Improved agent communications capabilities.

(4)

For the Tucson sector, the following:

(A)

Tower-based surveillance technology.

(B)

Increased flight hours for aerial detection, interdiction, and monitoring operations capability.

(C)

Deployable, lighter-than-air ground surveillance equipment.

(D)

Ultralight aircraft detection capabilities.

(E)

Advanced unattended surveillance sensors.

(F)

A rapid reaction capability supported by aviation assets.

(G)

Man-portable unmanned aerial vehicles.

(H)

Improved agent communications capabilities.

(5)

For the El Paso sector, the following:

(A)

Tower-based surveillance technology.

(B)

Deployable, lighter-than-air ground surveillance equipment.

(C)

Ultralight aircraft detection capabilities.

(D)

Advanced unattended surveillance sensors.

(E)

Mobile vehicle-mounted and man-portable surveillance systems.

(F)

A rapid reaction capability supported by aviation assets.

(G)

Mobile vehicle-mounted and man-portable surveillance capabilities.

(H)

Man-portable unmanned aerial vehicles.

(I)

Improved agent communications capabilities.

(6)

For the Big Bend sector, the following:

(A)

Tower-based surveillance technology.

(B)

Deployable, lighter-than-air ground surveillance equipment.

(C)

Improved agent communications capabilities.

(D)

Ultralight aircraft detection capabilities.

(E)

Advanced unattended surveillance sensors.

(F)

A rapid reaction capability supported by aviation assets.

(G)

Mobile vehicle-mounted and man-portable surveillance capabilities.

(H)

Man-portable unmanned aerial vehicles.

(I)

Improved agent communications capabilities.

(7)

For the Del Rio sector, the following:

(A)

Tower-based surveillance technology.

(B)

Increased monitoring for cross-river dams, culverts, and footpaths.

(C)

Improved agent communications capabilities.

(D)

Improved maritime capabilities in the Amistad National Recreation Area.

(E)

Advanced unattended surveillance sensors.

(F)

A rapid reaction capability supported by aviation assets.

(G)

Mobile vehicle-mounted and man-portable surveillance capabilities.

(H)

Man-portable unmanned aerial vehicles.

(I)

Improved agent communications capabilities.

(8)

For the Laredo sector, the following:

(A)

Tower-based surveillance technology.

(B)

Maritime detection resources for the Falcon Lake region.

(C)

Increased flight hours for aerial detection, interdiction, and monitoring operations capability.

(D)

Increased monitoring for cross-river dams, culverts, and footpaths.

(E)

Ultralight aircraft detection capability.

(F)

Advanced unattended surveillance sensors.

(G)

A rapid reaction capability supported by aviation assets.

(H)

Man-portable unmanned aerial vehicles.

(I)

Improved agent communications capabilities.

(9)

For the Rio Grande Valley sector, the following:

(A)

Tower-based surveillance technology.

(B)

Deployable, lighter-than-air ground surveillance equipment.

(C)

Increased flight hours for aerial detection, interdiction, and monitoring operations capability.

(D)

Ultralight aircraft detection capability.

(E)

Advanced unattended surveillance sensors.

(F)

Increased monitoring for cross-river dams, culverts, footpaths.

(G)

A rapid reaction capability supported by aviation assets.

(H)

Increased maritime interdiction capabilities.

(I)

Mobile vehicle-mounted and man-portable surveillance capabilities.

(J)

Man-portable unmanned aerial vehicles.

(K)

Improved agent communications capabilities.

(10)

For the Blaine sector, the following:

(A)

Increased flight hours for aerial detection, interdiction, and monitoring operations capability.

(B)

Coastal radar surveillance systems.

(C)

Increased maritime interdiction capabilities.

(D)

Mobile vehicle-mounted and man-portable surveillance capabilities.

(E)

Advanced unattended surveillance sensors.

(F)

Ultralight aircraft detection capabilities.

(G)

Man-portable unmanned aerial vehicles.

(H)

Improved agent communications capabilities.

(11)

For the Spokane sector, the following:

(A)

Increased flight hours for aerial detection, interdiction, and monitoring operations capability.

(B)

Increased maritime interdiction capabilities.

(C)

Mobile vehicle-mounted and man-portable surveillance capabilities.

(D)

Advanced unattended surveillance sensors.

(E)

Ultralight aircraft detection capabilities.

(F)

Completion of six miles of the Bog Creek road.

(G)

Man-portable unmanned aerial vehicles.

(H)

Improved agent communications systems.

(12)

For the Havre sector, the following:

(A)

Increased flight hours for aerial detection, interdiction, and monitoring operations capability.

(B)

Mobile vehicle-mounted and man-portable surveillance capabilities.

(C)

Advanced unattended surveillance sensors.

(D)

Ultralight aircraft detection capabilities.

(E)

Man-portable unmanned aerial vehicles.

(F)

Improved agent communications systems.

(13)

For the Grand Forks sector, the following:

(A)

Increased flight hours for aerial detection, interdiction, and monitoring operations capability.

(B)

Mobile vehicle-mounted and man-portable surveillance capabilities.

(C)

Advanced unattended surveillance sensors.

(D)

Ultralight aircraft detection capabilities.

(E)

Man-portable unmanned aerial vehicles.

(F)

Improved agent communications systems.

(14)

For the Detroit sector, the following:

(A)

Increased flight hours for aerial detection, interdiction, and monitoring operations capability.

(B)

Coastal radar surveillance systems.

(C)

Increased maritime interdiction capabilities.

(D)

Mobile vehicle-mounted and man-portable surveillance capabilities.

(E)

Advanced unattended surveillance sensors.

(F)

Ultralight aircraft detection capabilities.

(G)

Man-portable unmanned aerial vehicles.

(H)

Improved agent communications systems.

(15)

For the Buffalo sector, the following:

(A)

Increased flight hours for aerial detection, interdiction, and monitoring operations capability.

(B)

Coastal radar surveillance systems.

(C)

Increased maritime interdiction capabilities.

(D)

Mobile vehicle-mounted and man-portable surveillance capabilities.

(E)

Advanced unattended surveillance sensors.

(F)

Ultralight aircraft detection capabilities.

(G)

Man-portable unmanned aerial vehicles.

(H)

Improved agent communications systems.

(16)

For the Swanton sector, the following:

(A)

Increased flight hours for aerial detection, interdiction, and monitoring operations capability.

(B)

Mobile vehicle-mounted and man-portable surveillance capabilities.

(C)

Advanced unattended surveillance sensors.

(D)

Ultralight aircraft detection capabilities.

(E)

Man-portable unmanned aerial vehicles.

(F)

Improved agent communications systems.

(17)

For the Houlton sector, the following:

(A)

Increased flight hours for aerial detection, interdiction, and monitoring operations capability.

(B)

Mobile vehicle-mounted and man-portable surveillance capabilities.

(C)

Advanced unattended surveillance sensors.

(D)

Ultralight aircraft detection capabilities.

(E)

Man-portable unmanned aerial vehicles.

(F)

Improved agent communications systems.

(18)

For the transit zone, the following:

(A)

Not later than two years after the date of the enactment of this Act, an increase in the number of overall cutter, boat, and aircraft hours spent conducting interdiction operations over the average number of such hours during the preceding three fiscal years.

(B)

Increased maritime signals intelligence capabilities.

(C)

To increase maritime domain awareness, the following:

(i)

Unmanned aerial vehicles with maritime surveillance capability.

(ii)

Increased maritime aviation patrol hours.

(D)

Increased operational hours for maritime security components dedicated to joint counter-smuggling and interdiction efforts with other Federal agencies, including the Deployable Specialized Forces of the Coast Guard.

(E)

Coastal radar surveillance systems with long range day and night cameras capable of providing full maritime domain awareness of the United States territorial waters surrounding Puerto Rico, Mona Island, Desecheo Island, Vieques Island, Culebra Island, Saint Thomas, Saint John, and Saint Croix.

(b)

(1)

(A)

Beginning on September 30, 2021, or after the Secretary has deployed at least 25 percent of the capabilities required in each sector specified in subsection (a), whichever comes later, the Secretary may deviate from such capability deployments if the Secretary determines that such deviation is required to achieve situational awareness or operational control.

(B)

If the Secretary exercises the authority described in subparagraph (A), the Secretary shall, not later than 90 days after such exercise, notify the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Homeland Security of the House of Representatives regarding the deviation under such subparagraph that is the subject of such exercise. If the Secretary makes any changes to such deviation, the Secretary shall, not later than 90 days after any such change, notify such committees regarding such change.

(2)

(A)

The Secretary shall notify the Committee on Homeland Security and Governmental Affairs of the Senate, the Committee on Commerce, Science, and Transportation of the Senate, the Committee on Homeland Security of the House of Representatives, and the Committee on Transportation and Infrastructure of the House of Representatives regarding the capability deployments for the transit zone specified in paragraph (18) of subsection (a), including information relating to—

(i)

the number and types of assets and personnel deployed; and

(ii)

the impact such deployments have on the capability of the Coast Guard to conduct its mission in the transit zone referred to in paragraph (18) of subsection (a).

(B)

The Secretary may alter the capability deployments referred to in this section if the Secretary—

(i)

determines, after consultation with the committees referred to in subparagraph (A), that such alteration is necessary; and

(ii)

not later than 30 days after making a determination under clause (i), notifies the committees referred to in such subparagraph regarding such alteration, including information relating to—

(I)

the number and types of assets and personnel deployed pursuant to such alteration; and

(II)

the impact such alteration has on the capability of the Coast Guard to conduct its mission in the transit zone referred to in paragraph (18) of subsection (a).

(c)

(1)

Notwithstanding subsection (b), the Secretary may deploy the capabilities referred to in subsection (a) in a manner that is inconsistent with the requirements specified in such subsection if, after the Secretary has deployed at least 25 percent of such capabilities, the Secretary determines that exigent circumstances demand such an inconsistent deployment or that such an inconsistent deployment is vital to the national security interests of the United States.

(2)

The Secretary shall notify the Committee on Homeland Security of the House of Representative and the Committee on Homeland Security and Governmental Affairs of the Senate not later than 30 days after making a determination under paragraph (1). Such notification shall include a detailed justification regarding such determination.

1114.

The Chief of the U.S. Border Patrol shall prioritize the deployment of U.S. Border Patrol agents to as close to the physical land border as possible, consistent with border security enforcement priorities and accessibility to such areas.

1115.

(a)

Subtitle C of title IV of the Homeland Security Act of 2002 (6 U.S.C. 231 et seq.) is amended by adding at the end the following new section:

435.

(a)

In this section, the term major acquisition program means an acquisition program of the Department that is estimated by the Secretary to require an eventual total expenditure of at least $300,000,000 (based on fiscal year 2017 constant dollars) over its life cycle cost.

(b)

For each border security technology acquisition program of the Department that is determined to be a major acquisition program, the Secretary shall—

(1)

ensure that each such program has a written acquisition program baseline approved by the relevant acquisition decision authority;

(2)

document that each such program is meeting cost, schedule, and performance thresholds as specified in such baseline, in compliance with relevant departmental acquisition policies and the Federal Acquisition Regulation; and

(3)

have a plan for meeting program implementation objectives by managing contractor performance.

(c)

The Secretary, acting through the Under Secretary for Management and the Commissioner of U.S. Customs and Border Protection, shall ensure border security technology acquisition program managers who are responsible for carrying out this section adhere to relevant internal control standards identified by the Comptroller General of the United States. The Commissioner shall provide information, as needed, to assist the Under Secretary in monitoring management of border security technology acquisition programs under this section.

(d)

The Secretary, acting through the Under Secretary for Management, in coordination with the Under Secretary for Science and Technology and the Commissioner of U.S. Customs and Border Protection, shall submit to the appropriate congressional committees a plan for testing, evaluating, and using independent verification and validation resources for border security technology. Under the plan, new border security technologies shall be evaluated through a series of assessments, processes, and audits to ensure—

(1)

compliance with relevant departmental acquisition policies and the Federal Acquisition Regulation; and

(2)

the effective use of taxpayer dollars.

(b)

The table of contents in section 1(b) of the Homeland Security Act of 2002 is amended by inserting after the item relating to section 433 the following new item:

Sec. 435. Border security technology program management.

(c)

No additional funds are authorized to be appropriated to carry out section 435 of the Homeland Security Act of 2002, as added by subsection (a). Such section shall be carried out using amounts otherwise authorized for such purposes.

1116.

(a)

With the approval of the Secretary and the Secretary of Defense, the Governor of a State may order any units or personnel of the National Guard of such State to perform operations and missions under section 502(f) of title 32, United States Code, along the southern border for the purposes of assisting U.S. Customs and Border Protection to achieve situational awareness and operational control of the border.

(b)

(1)

National Guard units and personnel deployed under subsection (a) may be assigned such operations and missions specified in subsection (c) as may be necessary to secure the southern border.

(2)

The duty of National Guard personnel performing operations and missions described in paragraph (1) shall be full-time duty under title 32, United States Code.

(c)

The operations and missions assigned under subsection (b) shall include the temporary authority to—

(1)

construct reinforced fencing or other physical barriers;

(2)

operate ground-based surveillance systems;

(3)

operate unmanned and manned aircraft;

(4)

provide radio communications interoperability between U.S. Customs and Border Protection and State, local, and tribal law enforcement agencies;

(5)

construct checkpoints along the Southern border to bridge the gap to long-term permanent checkpoints; and

(6)

provide intelligence support.

(d)

The Secretary of Defense shall deploy such materiel, equipment, and logistical support as may be necessary to ensure success of the operations and missions conducted by the National Guard under this section.

(e)

(1)

The Secretary of Defense shall reimburse States for the cost of the deployment of any units or personnel of the National Guard to perform operations and missions in full-time State Active Duty in support of a southern border mission. The Secretary of Defense may not seek reimbursement from the Secretary for any reimbursements paid to States for the costs of such deployments.

(2)

The total amount of reimbursements under this section may not exceed $35,000,000 for any fiscal year.

1117.

(a)

The Secretary of Defense, with the concurrence of the Secretary, shall provide assistance to U.S. Customs and Border Protection for purposes of increasing ongoing efforts to secure the southern border.

(b)

The assistance provided under subsection (a) may include—

(1)

deployment of manned aircraft, unmanned aerial surveillance systems, and ground-based surveillance systems to support continuous surveillance of the southern border; and

(2)

intelligence analysis support.

(c)

The Secretary of Defense may deploy such materiel, equipment, and logistics support as may be necessary to ensure the effectiveness of the assistance provided under subsection (a).

(d)

There are authorized to be appropriated for the Department of Defense $75,000,000 to provide assistance under this section. The Secretary of Defense may not seek reimbursement from the Secretary for any assistance provided under this section.

(e)

(1)

Not later than 90 days after the date of the enactment of this Act and annually thereafter, the Secretary of Defense shall submit a report to the appropriate congressional defense committees (as defined in section 101(a)(16) of title 10, United States Code) regarding any assistance provided under subsection (a) during the period specified in paragraph (3).

(2)

Each report under paragraph (1) shall include, for the period specified in paragraph (3), a description of—

(A)

the assistance provided;

(B)

the sources and amounts of funds used to provide such assistance; and

(C)

the amounts obligated to provide such assistance.

(3)

The period specified in this paragraph is—

(A)

in the case of the first report required under paragraph (1), the 90-day period beginning on the date of the enactment of this Act; and

(B)

in the case of any subsequent report submitted under paragraph (1), the calendar year for which the report is submitted.

1118.

(a)

(1)

The Secretary concerned may not impede, prohibit, or restrict activities of U.S. Customs and Border Protection on covered Federal land to carry out the activities described in subsection (b).

(2)

The authority of U.S. Customs and Border Protection to conduct activities described in subsection (b) on covered Federal land applies without regard to whether a state of emergency exists.

(b)

(1)

U.S. Customs and Border Protection shall have immediate access to covered Federal land to conduct the activities described in paragraph (2) on such land to prevent all unlawful entries into the United States, including entries by terrorists, unlawful aliens, instruments of terrorism, narcotics, and other contraband through the southern border or the northern border.

(2)

The activities described in this paragraph are—

(A)

the execution of search and rescue operations;

(B)

the use of motorized vehicles, foot patrols, and horseback to patrol the border area, apprehend illegal entrants, and rescue individuals; and

(C)

the design, testing, construction, installation, deployment, and operation of physical barriers, tactical infrastructure, and technology pursuant to section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (as amended by section 1111 of this division).

(c)

(1)

The activities of U.S. Customs and Border Protection described in subsection (b)(2) may be carried out without regard to the provisions of law specified in paragraph (2).

(2)

The provisions of law specified in this section are all Federal, State, or other laws, regulations, and legal requirements of, deriving from, or related to the subject of, the following laws:

(A)

The National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

(B)

The Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).

(C)

The Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) (commonly referred to as the Clean Water Act).

(D)

Division A of subtitle III of title 54, United States Code (54 U.S.C. 300301 et seq.) (formerly known as the National Historic Preservation Act).

(E)

The Migratory Bird Treaty Act (16 U.S.C. 703 et seq.).

(F)

The Clean Air Act (42 U.S.C. 7401 et seq.).

(G)

The Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa et seq.).

(H)

The Safe Drinking Water Act (42 U.S.C. 300f et seq.).

(I)

The Noise Control Act of 1972 (42 U.S.C. 4901 et seq.).

(J)

The Solid Waste Disposal Act (42 U.S.C. 6901 et seq.).

(K)

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.).

(L)

Chapter 3125 of title 54, United States Code (formerly known as the Archaeological and Historic Preservation Act).

(M)

The Antiquities Act (16 U.S.C. 431 et seq.).

(N)

Chapter 3203 of title 54, United States Code (formerly known as the Historic Sites, Buildings, and Antiquities Act).

(O)

The Wild and Scenic Rivers Act (16 U.S.C. 1271 et seq.).

(P)

The Farmland Protection Policy Act (7 U.S.C. 4201 et seq.).

(Q)

The Coastal Zone Management Act of 1972 (16 U.S.C. 1451 et seq.).

(R)

The Wilderness Act (16 U.S.C. 1131 et seq.).

(S)

The Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.).

(T)

The National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd et seq.).

(U)

The Fish and Wildlife Act of 1956 (16 U.S.C. 742a et seq.).

(V)

The Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.).

(W)

Subchapter II of chapter 5, and chapter 7, of title 5, United States Code (commonly known as the Administrative Procedure Act).

(X)

The Otay Mountain Wilderness Act of 1999 (Public Law 106–145).

(Y)

Sections 102(29) and 103 of the California Desert Protection Act of 1994 (Public Law 103–433).

(Z)

Division A of subtitle I of title 54, United States Code (formerly known as the National Park Service Organic Act.

(AA)

The National Park Service General Authorities Act (Public Law 91–383, 16 U.S.C. 1a–1 et seq.).

(BB)

Sections 401(7), 403, and 404 of the National Parks and Recreation Act of 1978 (Public Law 95–625).

(CC)

Sections 301(a) through (f) of the Arizona Desert Wilderness Act (Public Law 101–628).

(DD)

The Rivers and Harbors Act of 1899 (33 U.S.C. 403).

(EE)

The Eagle Protection Act (16 U.S.C. 668 et seq.).

(FF)

The Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.).

(GG)

The American Indian Religious Freedom Act (42 U.S.C. 1996).

(HH)

The Religious Freedom Restoration Act (42 U.S.C. 2000bb).

(II)

The National Forest Management Act of 1976 (16 U.S.C. 1600 et seq.).

(JJ)

The Multiple Use and Sustained Yield Act of 1960 (16 U.S.C. 528 et seq.).

(3)

If a provision of law specified in paragraph (2) was repealed and incorporated into title 54, United States Code, after April 1, 2008, and before the date of the enactment of this Act, the waiver described in paragraph (1) shall apply to the provision of such title that corresponds to the provision of law specified in paragraph (2) to the same extent the waiver applied to that provision of law.

(4)

The waiver authority under this subsection may not be construed as affecting, negating, or diminishing in any manner the applicability of section 552 of title 5, United States Code (commonly referred to as the “Freedom of Information Act”), in any relevant matter.

(d)

This section may not be construed to provide—

(1)

authority to restrict legal uses, such as grazing, hunting, mining, or recreation or the use of backcountry airstrips, on land under the jurisdiction of the Secretary of the Interior or the Secretary of Agriculture; or

(2)

any additional authority to restrict legal access to such land.

(e)

This section shall—

(1)

have no force or effect on State lands or private lands; and

(2)

not provide authority on or access to State lands or private lands.

(f)

Nothing in this section may be construed to supersede, replace, negate, or diminish treaties or other agreements between the United States and Indian tribes.

(g)

The requirements of this section shall not apply to the extent that such requirements are incompatible with any memorandum of understanding or similar agreement entered into between the Commissioner and a National Park Unit before the date of the enactment of this Act.

(h)

In this section:

(1)

The term covered Federal land includes all land under the control of the Secretary concerned that is located within 100 miles of the southern border or the northern border.

(2)

The term Secretary concerned means—

(A)

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

(B)

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

1119.

(a)

The Secretary shall establish a National Border Security Advisory Committee, which—

(1)

may advise, consult with, report to, and make recommendations to the Secretary on matters relating to border security matters, including—

(A)

verifying security claims and the border security metrics established by the Department of Homeland Security under section 1092 of the National Defense Authorization Act for Fiscal Year 2017 (Public Law 114–328; 6 U.S.C. 223); and

(B)

discussing ways to improve the security of high traffic areas along the northern border and the southern border; and

(2)

may provide, through the Secretary, recommendations to Congress.

(b)

The Secretary shall consider the information, advice, and recommendations of the National Border Security Advisory Committee in formulating policy regarding matters affecting border security.

(c)

The National Border Security Advisory Committee shall consist of at least one member from each State who—

(1)

has at least five years practical experience in border security operations; or

(2)

lives and works in the United States within 80 miles from the southern border or the northern border.

(d)

The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to the National Border Security Advisory Committee.

1120.

(a)

Not later than September 30, 2022, the Secretary, after coordinating with the heads of the relevant Federal, State, and local agencies, shall begin eradicating the carrizo cane plant and any salt cedar along the Rio Grande River that impedes border security operations.

(b)

The waiver authority under subsection (c) of section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1103 note), as amended by section 1111 of this division, shall extend to activities carried out pursuant to this section.

1121.

(a)

(1)

Not later than 180 days after the date of the enactment of this Act, the Secretary 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 Southern border threat analysis.

(2)

The analysis submitted under paragraph (1) shall include an assessment of—

(A)

current and potential terrorism and criminal threats posed by individuals and organized groups seeking—

(i)

to unlawfully enter the United States through the Southern border; or

(ii)

to exploit security vulnerabilities along the Southern border;

(B)

improvements needed at and between ports of entry along the Southern border to prevent terrorists and instruments of terror from entering the United States;

(C)

gaps in law, policy, and coordination between State, local, or tribal law enforcement, international agreements, or tribal agreements that hinder effective and efficient border security, counterterrorism, and anti-human smuggling and trafficking efforts;

(D)

the current percentage of situational awareness achieved by the Department along the Southern border;

(E)

the current percentage of operational control achieved by the Department on the Southern border; and

(F)

traveler crossing times and any potential security vulnerability associated with prolonged wait times.

(3)

In compiling the Southern border threat analysis required under this subsection, the Secretary shall consider and examine—

(A)

the technology needs and challenges, including such needs and challenges identified as a result of previous investments that have not fully realized the security and operational benefits that were sought;

(B)

the personnel needs and challenges, including such needs and challenges associated with recruitment and hiring;

(C)

the infrastructure needs and challenges;

(D)

the roles and authorities of State, local, and tribal law enforcement in general border security activities;

(E)

the status of coordination among Federal, State, local, tribal, and Mexican law enforcement entities relating to border security;

(F)

the terrain, population density, and climate along the Southern border; and

(G)

the international agreements between the United States and Mexico related to border security.

(4)

To the extent possible, the Secretary shall submit the Southern border threat analysis required under this subsection in unclassified form, but may submit a portion of the threat analysis in classified form if the Secretary determines such action is appropriate.

(b)

(1)

Not later than 180 days after the submission of the threat analysis required under subsection (a) or June 30, 2018, and every five years thereafter, the Secretary, acting through the Chief of the U.S. Border Patrol, shall issue a Border Patrol Strategic Plan.

(2)

The Border Patrol Strategic Plan required under this subsection shall include a consideration of—

(A)

the Southern border threat analysis required under subsection (a), with an emphasis on efforts to mitigate threats identified in such threat analysis;

(B)

efforts to analyze and disseminate border security and border threat information between border security components of the Department and other appropriate Federal departments and agencies with missions associated with the Southern border;

(C)

efforts to increase situational awareness, including—

(i)

surveillance capabilities, including capabilities developed or utilized by the Department of Defense, and any appropriate technology determined to be excess by the Department of Defense; and

(ii)

the use of manned aircraft and unmanned aerial systems, including camera and sensor technology deployed on such assets;

(D)

efforts to detect and prevent terrorists and instruments of terrorism from entering the United States;

(E)

efforts to detect, interdict, and disrupt aliens and illicit drugs at the earliest possible point;

(F)

efforts to focus intelligence collection to disrupt transnational criminal organizations outside of the international and maritime borders of the United States;

(G)

efforts to ensure that any new border security technology can be operationally integrated with existing technologies in use by the Department;

(H)

any technology required to maintain, support, and enhance security and facilitate trade at ports of entry, including nonintrusive detection equipment, radiation detection equipment, biometric technology, surveillance systems, and other sensors and technology that the Secretary determines to be necessary;

(I)

operational coordination unity of effort initiatives of the border security components of the Department, including any relevant task forces of the Department;

(J)

lessons learned from Operation Jumpstart and Operation Phalanx;

(K)

cooperative agreements and information sharing with State, local, tribal, territorial, and other Federal law enforcement agencies that have jurisdiction on the Northern border or the Southern border;

(L)

border security information received from consultation with State, local, tribal, territorial, and Federal law enforcement agencies that have jurisdiction on the Northern border or the Southern border, or in the maritime environment, and from border community stakeholders (including through public meetings with such stakeholders), including representatives from border agricultural and ranching organizations and representatives from business and civic organizations along the Northern border or the Southern border;

(M)

staffing requirements for all departmental border security functions;

(N)

a prioritized list of departmental research and development objectives to enhance the security of the Southern border;

(O)

an assessment of training programs, including training programs for—

(i)

identifying and detecting fraudulent documents;

(ii)

understanding the scope of enforcement authorities and the use of force policies; and

(iii)

screening, identifying, and addressing vulnerable populations, such as children and victims of human trafficking; and

(P)

an assessment of how border security operations affect border crossing times.

1122.

(a)

Subsection (c) of section 411 of the Homeland Security Act of 2002 (6 U.S.C. 211) is amended—

(1)

in paragraph (18), by striking and after the semicolon at the end;

(2)

by redesignating paragraph (19) as paragraph (21); and

(3)

by inserting after paragraph (18) the following new paragraphs:

(19)

administer the U.S. Customs and Border Protection public private partnerships under subtitle G;

(20)

administer preclearance operations under the Preclearance Authorization Act of 2015 (19 U.S.C. 4431 et seq.; enacted as subtitle B of title VIII of the Trade Facilitation and Trade Enforcement Act of 2015; 19 U.S.C. 4301 et seq.); and

(b)

Subparagraph (A) of section 411(g)(5) of the Homeland Security Act of 2002 (6 U.S.C. 211(g)(5)) is amended by inserting before the period at the end the following: compared to the number indicated by the current fiscal year work flow staffing model.

(c)

Subparagraph (B) of section 814(e)(1) of the Preclearance Authorization Act of 2015 (19 U.S.C. 4433(e)(1); enacted as subtitle B of title VIII of the Trade Facilitation and Trade Enforcement Act of 2015; 19 U.S.C. 4301 et seq.) is amended to read as follows:

(B)

a port of entry vacancy rate which compares the number of officers identified in subparagraph (A) with the number of officers at the port at which such officer is currently assigned.

(d)

Subsection (r) of section 411 of the Homeland Security Act of 2002 (6 U.S.C. 211) is amended—

(1)

by striking this section, the terms and inserting the following:

this section:

(1)

the terms

;

(2)

in paragraph (1), as added by subparagraph (A), by striking the period at the end and inserting ; and; and

(3)

by adding at the end the following new paragraph:

(2)

the term unmanned aerial systems has the meaning given the term unmanned aircraft system in section 331 of the FAA Modernization and Reform Act of 2012 (Public Law 112–95; 49 U.S.C. 40101 note).

1123.

In carrying out section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (as amended by section 1111 of this division) and section 1113 of this division, the Secretary shall, to the greatest extent practicable, ensure that technology deployed to gain situational awareness and operational control of the border be provided to front-line officers and agents of the Department of Homeland Security.

1124.

(a)

Subtitle C of title IV of the Homeland Security Act of 2002 (6 U.S.C. 231 et seq.), as amended by section 1115 of this division, is further amended by adding at the end the following new section:

436.

(a)

The Secretary shall establish within the Department a program to be known as the Integrated Border Enforcement Team program (referred to in this section as IBET).

(b)

The Secretary shall administer the IBET program in a manner that results in a cooperative approach between the United States and Canada to—

(1)

strengthen security between designated ports of entry;

(2)

detect, prevent, investigate, and respond to terrorism and violations of law related to border security;

(3)

facilitate collaboration among components and offices within the Department and international partners;

(4)

execute coordinated activities in furtherance of border security and homeland security; and

(5)

enhance information-sharing, including the dissemination of homeland security information among such components and offices.

(c)

(1)

IBETs shall be led by the United States Border Patrol and may be comprised of personnel from the following:

(A)

Other subcomponents of U.S. Customs and Border Protection.

(B)

U.S. Immigration and Customs Enforcement, led by Homeland Security Investigations.

(C)

The Coast Guard, for the purpose of securing the maritime borders of the United States.

(D)

Other Department personnel, as appropriate.

(E)

Other Federal departments and agencies, as appropriate.

(F)

Appropriate State law enforcement agencies.

(G)

Foreign law enforcement partners.

(H)

Local law enforcement agencies from affected border cities and communities.

(I)

Appropriate tribal law enforcement agencies.

(2)

The Secretary is authorized to establish IBETs in regions in which such teams can contribute to IBET missions, as appropriate. When establishing an IBET, the Secretary shall consider the following:

(A)

Whether the region in which the IBET would be established is significantly impacted by cross-border threats.

(B)

The availability of Federal, State, local, tribal, and foreign law enforcement resources to participate in an IBET.

(C)

Whether, in accordance with paragraph (3), other joint cross-border initiatives already take place within the region in which the IBET would be established, including other Department cross-border programs such as the Integrated Cross-Border Maritime Law Enforcement Operation Program established under section 711 of the Coast Guard and Maritime Transportation Act of 2012 (46 U.S.C. 70101 note) or the Border Enforcement Security Task Force established under section 432.

(3)

In determining whether to establish a new IBET or to expand an existing IBET in a given region, the Secretary shall ensure that the IBET under consideration does not duplicate the efforts of other existing interagency task forces or centers within such region, including the Integrated Cross-Border Maritime Law Enforcement Operation Program established under section 711 of the Coast Guard and Maritime Transportation Act of 2012 (46 U.S.C. 70101 note) or the Border Enforcement Security Task Force established under section 432.

(d)

(1)

After determining the regions in which to establish IBETs, the Secretary may—

(A)

direct the assignment of Federal personnel to such IBETs; and

(B)

take other actions to assist Federal, State, local, and tribal entities to participate in such IBETs, including providing financial assistance, as appropriate, for operational, administrative, and technological costs associated with such participation.

(2)

Coast Guard personnel assigned under paragraph (1) may be assigned only for the purposes of securing the maritime borders of the United States, in accordance with subsection (c)(1)(C).

(e)

The Secretary shall coordinate the IBET program with other similar border security and antiterrorism programs within the Department in accordance with the strategic objectives of the Cross-Border Law Enforcement Advisory Committee.

(f)

The Secretary may enter into memoranda of understanding with appropriate representatives of the entities specified in subsection (c)(1) necessary to carry out the IBET program.

(g)

Not later than 180 days after the date on which an IBET is established and biannually thereafter for the following six years, the Secretary shall submit to the appropriate congressional committees, including the Committee on Homeland Security of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate, and in the case of Coast Guard personnel used to secure the maritime borders of the United States, additionally to the Committee on Transportation and Infrastructure of the House of Representatives, a report that—

(1)

describes the effectiveness of IBETs in fulfilling the purposes specified in subsection (b);

(2)

assess the impact of certain challenges on the sustainment of cross-border IBET operations, including challenges faced by international partners;

(3)

addresses ways to support joint training for IBET stakeholder agencies and radio interoperability to allow for secure cross-border radio communications; and

(4)

assesses how IBETs, Border Enforcement Security Task Forces, and the Integrated Cross-Border Maritime Law Enforcement Operation Program can better align operations, including interdiction and investigation activities.

(b)

The table of contents in section 1(b) of the Homeland Security Act of 2002 is amended by adding after the item relating to section 435 the following new item:

Sec. 436. Integrated Border Enforcement Teams.

1125.

The Secretary is authorized to establish Tunnel Task Forces for the purposes of detecting and remediating tunnels that breach the international border of the United States.

1126.

(a)

The Commissioner of U.S. Customs and Border Protection, in consultation with the Assistant Secretary of Commerce for Communications and Information, shall conduct a pilot program to test and evaluate the use of electromagnetic spectrum by U.S. Customs and Border Protection in support of border security operations through—

(1)

ongoing management and monitoring of spectrum to identify threats such as unauthorized spectrum use, and the jamming and hacking of United States communications assets, by persons engaged in criminal enterprises;

(2)

automated spectrum management to enable greater efficiency and speed for U.S. Customs and Border Protection in addressing emerging challenges in overall spectrum use on the United States border; and

(3)

coordinated use of spectrum resources to better facilitate interoperability and interagency cooperation and interdiction efforts at or near the United States border.

(b)

Not later than 180 days after the conclusion of the pilot program conducted under subsection (a), the Commissioner of U.S. Customs and Border Protection shall submit to the Committee on Homeland Security and the Committee on Energy and Commerce of the House of Representatives and the Committee on Homeland Security and Governmental Affairs and the Committee on Commerce, Science, and Transportation of the Senate a report on the findings and data derived from such program.

1127.

(a)

Subtitle C of title IV of the Homeland Security Act of 2002 (6 U.S.C. 231 et seq.), as amended by sections 1115 and 1124 of this division, is further amended by adding at the end the following new section:

437.

(a)

The Secretary, with the concurrence of the Secretary of State, may provide to a foreign government, financial assistance and, with or without reimbursement, security assistance, including equipment, training, maintenance, supplies, and sustainment support.

(b)

The Secretary may only provide financial assistance or security assistance pursuant to subsection (a) if the Secretary determines that such assistance would enhance the recipient government’s capacity to—

(1)

mitigate the risk or threat of transnational organized crime and terrorism;

(2)

address irregular migration flows that may affect the United States, including any detention or removal operations of the recipient government; or

(3)

protect and expedite legitimate trade and travel.

(c)

The Secretary may not—

(1)

transfer any equipment or supplies that are designated as a munitions item or controlled on the United States Munitions List, pursuant to section 38 of the Foreign Military Sales Act (22 U.S.C. 2778); or

(2)

transfer any vessel or aircraft pursuant to this section.

(d)

In conjunction with a transfer of equipment pursuant to subsection (a), the Secretary may provide such equipment-related training and assistance as the Secretary determines necessary.

(e)

The Secretary may provide for the maintenance of transferred equipment through service contracts or other means, with or without reimbursement, as the Secretary determines necessary.

(f)

(1)

The Secretary may collect payment from the receiving entity for the provision of security assistance under this section, including equipment, training, maintenance, supplies, sustainment support, and related shipping costs.

(2)

Notwithstanding any other provision of law, to the extent the Secretary does not collect payment pursuant to paragraph (1), any amounts appropriated or otherwise made available to the Department of Homeland Security may be transferred to the account that finances the security assistance provided pursuant to subsection (a).

(g)

Notwithstanding section 3302 of title 31, United States Code, any reimbursement collected pursuant to subsection (f) shall—

(1)

be credited as offsetting collections to the account that finances the security assistance under this section for which such reimbursement is received; and

(2)

remain available until expended for the purpose of carrying out this section.

(h)

Nothing in this section may be construed as affecting, augmenting, or diminishing the authority of the Secretary of State.

(b)

The table of contents in section 1(b) of the Homeland Security Act of 2002 is amended by inserting after the item relating to section 436 the following new item:

Sec. 437. Security assistance.

1131.

(a)

Not later than September 30, 2022, the Commissioner shall hire, train, and assign sufficient agents to maintain an active duty presence of not fewer than 26,370 full-time equivalent agents.

(b)

In addition to positions authorized before the date of the enactment of this Act and any existing officer vacancies within U.S. Customs and Border Protection as of such date, the Commissioner shall hire, train, and assign to duty, not later than September 30, 2022—

(1)

sufficient U.S. Customs and Border Protection officers to maintain an active duty presence of not fewer than 27,725 full-time equivalent officers; and

(2)

350 full-time support staff distributed among all United States ports of entry.

(c)

Not later than September 30, 2022, the Commissioner shall hire, train, and assign sufficient agents for Air and Marine Operations of U.S. Customs and Border Protection to maintain not fewer than 1,675 full-time equivalent agents and not fewer than 264 Marine and Air Interdiction Agents for southern border air and maritime operations.

(d)

(1)

Not later than September 30, 2022, the Commissioner shall deploy not fewer than 300 new K–9 units, with supporting officers of U.S. Customs and Border Protection and other required staff, at land ports of entry and checkpoints, on the southern border and the northern border.

(2)

The Commissioner shall prioritize the use of canines at the primary inspection lanes at land ports of entry and checkpoints.

(e)

(1)

Not later than September 30, 2022, the Commissioner shall increase the number of horseback units, with supporting officers of U.S. Customs and Border Protection and other required staff, by not fewer than 100 officers and 50 horses for security patrol along the Southern border.

(2)

The Commissioner shall construct new stables, maintain and improve existing stables, and provide other resources needed to maintain the health and well-being of the horses that serve in the horseback units of U.S. Customs and Border Protection.

(f)

Not later than September 30, 2022, the Commissioner shall increase by not fewer than 50 the number of officers engaged in search and rescue activities along the southern border.

(g)

Not later than September 30, 2022, the Commissioner shall increase by not fewer than 50 the number of officers assisting task forces and activities related to deployment and operation of border tunnel detection technology and apprehensions of individuals using such tunnels for crossing into the United States, drug trafficking, or human smuggling.

(h)

Not later than September 30, 2022, the Secretary shall hire, train, and assign to duty, in addition to the officers and agents authorized under subsections (a) through (g), 631 U.S. Customs and Border Protection agricultural specialists to ports of entry along the southern border and the northern border.

(i)

Not later than September 30, 2022, the Commissioner shall hire, train, and assign sufficient Office of Professional Responsibility special agents to maintain an active duty presence of not fewer than 550 full-time equivalent special agents.

(j)

Not later than September 30, 2022, the Commissioner shall hire, train, and assign sufficient Office of Intelligence personnel to maintain not fewer than 700 full-time equivalent employees.

(k)

If the staffing levels required under this section are not achieved by September 30, 2022, the Comptroller General of the United States shall conduct a review of the reasons why such levels were not achieved.

1132.

(a)

Chapter 97 of title 5, United States Code, is amended by adding at the end the following:

9702.

(a)

In this section—

(1)

the term CBP employee means an employee of U.S. Customs and Border Protection described under any of subsections (a) through (h) of section 1131 of the Border Security for America Act of 2018;

(2)

the term Commissioner means the Commissioner of U.S. Customs and Border Protection;

(3)

the term Director means the Director of the Office of Personnel Management;

(4)

the term Secretary means the Secretary of Homeland Security; and

(5)

the term appropriate congressional committees means the Committee on Oversight and Government Reform, the Committee on Homeland Security, and the Committee on Ways and Means of the House of Representatives and the Committee on Homeland Security and Governmental Affairs and the Committee on Finance of the Senate.

(b)

(1)

The purpose of this subsection is to allow U.S. Customs and Border Protection to expeditiously meet the hiring goals and staffing levels required by section 1131 of the Border Security for America Act of 2018. The Secretary shall not use this authority beyond meeting the requirements of such section.

(2)

The Secretary may appoint, without regard to any provision of sections 3309 through 3319, candidates to positions in the competitive service as CBP employees if the Secretary has given public notice for the positions.

(3)

The Secretary may pay a recruitment or relocation bonus of up to 50 percent of the annual rate of basic pay to an individual CBP employee at the beginning of the service period multiplied by the number of years (including a fractional part of a year) in the required service period to an individual (other than an individual described in subsection (a)(2) of section 5753) if—

(A)

the Secretary determines that conditions consistent with the conditions described in paragraphs (1) and (2) of subsection (b) of such section 5753 are satisfied with respect to the individual (without regard to the regulations referenced in subsection (b)(2)(B(ii)(I) of such section or to any other provision of that section); and

(B)

the individual enters into a written service agreement with the Secretary—

(i)

under which the individual is required to complete a period of employment as a CBP employee of not less than 2 years; and

(ii)

that includes—

(I)

the commencement and termination dates of the required service period (or provisions for the determination thereof);

(II)

the amount of the bonus; and

(III)

other terms and conditions under which the bonus is payable, subject to the requirements of this subsection, including—

(aa)

the conditions under which the agreement may be terminated before the agreed-upon service period has been completed; and

(bb)

the effect of a termination described in item (aa).

(4)

The Secretary may pay a retention bonus of up to 50 percent of basic pay to an individual CBP employee (other than an individual described in subsection (a)(2) of section 5754) if—

(A)

the Secretary determines that—

(i)

a condition consistent with the condition described in subsection (b)(1) of such section 5754 is satisfied with respect to the CBP employee (without regard to any other provision of that section);

(ii)

in the absence of a retention bonus, the CBP employee would be likely to leave—

(I)

the Federal service; or

(II)

for a different position in the Federal service, including a position in another agency or component of the Department of Homeland Security; and

(B)

the individual enters into a written service agreement with the Secretary—

(i)

under which the individual is required to complete a period of employment as a CBP employee of not less than 2 years; and

(ii)

that includes—

(I)

the commencement and termination dates of the required service period (or provisions for the determination thereof);

(II)

the amount of the bonus; and

(III)

other terms and conditions under which the bonus is payable, subject to the requirements of this subsection, including—

(aa)

the conditions under which the agreement may be terminated before the agreed-upon service period has been completed; and

(bb)

the effect of a termination described in item (aa).

(5)

(A)

A bonus paid to an employee under—

(i)

paragraph (3) may not exceed 100 percent of the annual rate of basic pay of the employee as of the commencement date of the applicable service period; and

(ii)

paragraph (4) may not exceed 50 percent of the annual rate of basic pay of the employee.

(B)

A bonus paid to an employee under paragraph (3) or (4) shall not be considered part of the basic pay of the employee for any purpose, including for retirement or in computing a lump-sum payment to the covered employee for accumulated and accrued annual leave under section 5551 or section 5552.

(C)

(i)

A bonus paid to an employee under paragraph (4) may not be based on any period of such service which is the basis for a recruitment or relocation bonus under paragraph (3).

(ii)

A bonus paid to an employee under paragraph (3) or (4) may not be based on any period of service which is the basis for a recruitment or relocation bonus under section 5753 or a retention bonus under section 5754.

(c)

In addition to the circumstances described in subsection (b) of section 5305, the Director may establish special rates of pay in accordance with that section to assist the Secretary in meeting the requirements of section 1131 of the Border Security for America Act of 2018. The Director shall prioritize the consideration of requests from the Secretary for such special rates of pay and issue a decision as soon as practicable. The Secretary shall provide such information to the Director as the Director deems necessary to evaluate special rates of pay under this subsection.

(d)

(1)

Not later than September 30 of each year, the Secretary shall provide a report to the Director on U.S. Customs and Border Protection’s use of authorities provided under subsections (b) and (c). In each report, the Secretary shall provide such information as the Director determines is appropriate to ensure appropriate use of authorities under such subsections. Each report shall also include an assessment of—

(A)

the impact of the use of authorities under subsections (b) and (c) on implementation of section 1131 of the Border Security for America Act of 2018;

(B)

solving hiring and retention challenges at the agency, including at specific locations;

(C)

whether hiring and retention challenges still exist at the agency or specific locations; and

(D)

whether the Secretary needs to continue to use authorities provided under this section at the agency or at specific locations.

(2)

In compiling a report under paragraph (1), the Secretary shall consider—

(A)

whether any CBP employee accepted an employment incentive under subsection (b) and (c) and then transferred to a new location or left U.S. Customs and Border Protection; and

(B)

the length of time that each employee identified under subparagraph (A) stayed at the original location before transferring to a new location or leaving U.S. Customs and Border Protection.

(3)

In addition to the Director, the Secretary shall submit each report required under this subsection to the appropriate congressional committees.

(e)

If the Director determines the Secretary has inappropriately used authorities under subsection (b) or a special rate of pay provided under subsection (c), the Director shall notify the Secretary and the appropriate congressional committees in writing. Upon receipt of the notification, the Secretary may not make any new appointments or issue any new bonuses under subsection (b), nor provide CBP employees with further special rates of pay, until the Director has provided the Secretary and the appropriate congressional committees a written notice stating the Director is satisfied safeguards are in place to prevent further inappropriate use.

(f)

(1)

Not later than 180 days after the date of the enactment of this section, and in conjunction with the Chief Human Capital Officer of the Department of Homeland Security, the Secretary shall develop and implement a strategy to improve the education regarding hiring and human resources flexibilities (including hiring and human resources flexibilities for locations in rural or remote areas) for all employees, serving in agency headquarters or field offices, who are involved in the recruitment, hiring, assessment, or selection of candidates for locations in a rural or remote area, as well as the retention of current employees.

(2)

Elements of the strategy under paragraph (1) shall include the following:

(A)

Developing or updating training and educational materials on hiring and human resources flexibilities for employees who are involved in the recruitment, hiring, assessment, or selection of candidates, as well as the retention of current employees.

(B)

Regular training sessions for personnel who are critical to filling open positions in rural or remote areas.

(C)

The development of pilot programs or other programs, as appropriate, consistent with authorities provided to the Secretary to address identified hiring challenges, including in rural or remote areas.

(D)

Developing and enhancing strategic recruiting efforts through the relationships with institutions of higher education, as defined in section 102 of the Higher Education Act of 1965 (20 U.S.C. 1002), veterans transition and employment centers, and job placement program in regions that could assist in filling positions in rural or remote areas.

(E)

Examination of existing agency programs on how to most effectively aid spouses and families of individuals who are candidates or new hires in a rural or remote area.

(F)

Feedback from individuals who are candidates or new hires at locations in a rural or remote area, including feedback on the quality of life in rural or remote areas for new hires and their families.

(G)

Feedback from CBP employees, other than new hires, who are stationed at locations in a rural or remote area, including feedback on the quality of life in rural or remote areas for those CBP employees and their families.

(H)

Evaluation of Department of Homeland Security internship programs and the usefulness of those programs in improving hiring by the Secretary in rural or remote areas.

(3)

(A)

Each year, the Secretary shall—

(i)

evaluate the extent to which the strategy developed and implemented under paragraph (1) has improved the hiring and retention ability of the Secretary; and

(ii)

make any appropriate updates to the strategy under paragraph (1).

(B)

The evaluation conducted under subparagraph (A) shall include—

(i)

any reduction in the time taken by the Secretary to fill mission-critical positions, including in rural or remote areas;

(ii)

a general assessment of the impact of the strategy implemented under paragraph (1) on hiring challenges, including in rural or remote areas; and

(iii)

other information the Secretary determines relevant.

(g)

Not later than two years after the date of the enactment of this section, the Inspector General of the Department of Homeland Security shall review the use of hiring and pay flexibilities under subsections (b) and (c) to determine whether the use of such flexibilities is helping the Secretary meet hiring and retention needs, including in rural and remote areas.

(h)

The Secretary shall report to the appropriate congressional committees on the number of requests the Secretary receives from any other Federal agency for the file of an applicant for a position in U.S. Customs and Border Protection that includes the results of a polygraph examination.

(i)

(1)

The exercise of authority under subsection (b) shall be subject to the sole and exclusive discretion of the Secretary (or the Commissioner, as applicable under paragraph (2) of this subsection), notwithstanding chapter 71 and any collective bargaining agreement.

(2)

The Secretary may delegate any authority under this section to the Commissioner.

(j)

Nothing in this section shall be construed to exempt the Secretary or the Director from applicability of the merit system principles under section 2301.

(k)

The authorities under subsections (b) and (c) shall terminate on September 30, 2022. Any bonus to be paid pursuant to subsection (b) that is approved before such date may continue until such bonus has been paid, subject to the conditions specified in this section.

(b)

The table of sections for chapter 97 of title 5, United States Code, is amended by adding at the end the following:

9702. U.S. Customs and Border Protection temporary employment authorities.

1133.

(a)

This section may be cited as the Anti-Border Corruption Reauthorization Act of 2018.

(b)

Section 3 of the Anti-Border Corruption Act of 2010 (6 U.S.C. 221) is amended by striking subsection (b) and inserting the following new subsections:

(b)

The Commissioner of U.S. Customs and Border Protection may waive the application of subsection (a)(1)—

(1)

to a current, full-time law enforcement officer employed by a State or local law enforcement agency who—

(A)

has continuously served as a law enforcement officer for not fewer than three years;

(B)

is authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of, or the incarceration of any person for, any violation of law, and has statutory powers for arrest or apprehension;

(C)

is not currently under investigation, has not been found to have engaged in criminal activity or serious misconduct, has not resigned from a law enforcement officer position under investigation or in lieu of termination, and has not been dismissed from a law enforcement officer position; and

(D)

has, within the past ten years, successfully completed a polygraph examination as a condition of employment with such officer’s current law enforcement agency;

(2)

to a current, full-time Federal law enforcement officer who—

(A)

has continuously served as a law enforcement officer for not fewer than three years;

(B)

is authorized to make arrests, conduct investigations, conduct searches, make seizures, carry firearms, and serve orders, warrants, and other processes;

(C)

(D)

holds a current Tier 4 background investigation or current Tier 5 background investigation; and

(3)

to a member of the Armed Forces (or a reserve component thereof) or a veteran, if such individual—

(A)

has served in the Armed Forces for not fewer than three years;

(B)

holds, or has held within the past five years, a Secret, Top Secret, or Top Secret/Sensitive Compartmented Information clearance;

(C)

holds, or has undergone within the past five years, a current Tier 4 background investigation or current Tier 5 background investigation;

(D)

received, or is eligible to receive, an honorable discharge from service in the Armed Forces and has not engaged in criminal activity or committed a serious military or civil offense under the Uniform Code of Military Justice; and

(E)

was not granted any waivers to obtain the clearance referred to subparagraph (B).

(c)

The authority to issue a waiver under subsection (b) shall terminate on the date that is four years after the date of the enactment of the Border Security for America Act of 2018.

(c)

(1)

Section 4 of the Anti-Border Corruption Act of 2010 is amended to read as follows:

(a)

An individual who receives a waiver under section 3(b) is not exempt from other hiring requirements relating to suitability for employment and eligibility to hold a national security designated position, as determined by the Commissioner of U.S. Customs and Border Protection.

(b)

Any individual who receives a waiver under section 3(b) who holds a current Tier 4 background investigation shall be subject to a Tier 5 background investigation.

(c)

The Commissioner of U.S. Customs and Border Protection is authorized to administer a polygraph examination to an applicant or employee who is eligible for or receives a waiver under section 3(b) if information is discovered before the completion of a background investigation that results in a determination that a polygraph examination is necessary to make a final determination regarding suitability for employment or continued employment, as the case may be.

(2)

The Anti-Border Corruption Act of 2010, as amended by paragraph (1), is further amended by adding at the end the following new section:

(a)

Not later than one year after the date of the enactment of this section and annually thereafter while the waiver authority under section 3(b) is in effect, the Commissioner of U.S. Customs and Border Protection shall submit to Congress a report that includes, with respect to each such reporting period—

(1)

the number of waivers requested, granted, and denied under section 3(b);

(2)

the reasons for any denials of such waiver;

(3)

the percentage of applicants who were hired after receiving a waiver;

(4)

the number of instances that a polygraph was administered to an applicant who initially received a waiver and the results of such polygraph;

(5)

an assessment of the current impact of the polygraph waiver program on filling law enforcement positions at U.S. Customs and Border Protection; and

(6)

additional authorities needed by U.S. Customs and Border Protection to better utilize the polygraph waiver program for its intended goals.

(b)

The first report submitted under subsection (a) shall include—

(1)

an analysis of other methods of employment suitability tests that detect deception and could be used in conjunction with traditional background investigations to evaluate potential employees for suitability; and

(2)

a recommendation regarding whether a test referred to in paragraph (1) should be adopted by U.S. Customs and Border Protection when the polygraph examination requirement is waived pursuant to section 3(b).

(3)

The Anti-Border Corruption Act of 2010, as amended by paragraphs (1) and (2), is further amended by adding at the end the following new section:

In this Act:

(1)

The term Federal law enforcement officer means a law enforcement officer defined in section 8331(20) or 8401(17) of title 5, United States Code.

(2)

The term serious military or civil offense means an offense for which—

(A)

a member of the Armed Forces may be discharged or separated from service in the Armed Forces; and

(B)

a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Court-Martial, as pursuant to Army Regulation 635–200 chapter 14–12.

(3)

The terms Tier 4 and Tier 5 with respect to background investigations have the meaning given such terms under the 2012 Federal Investigative Standards.

(4)

The term veteran has the meaning given such term in section 101(2) of title 38, United States Code.

(d)

Not later than September 30, 2022, the Secretary shall increase to not fewer than 150 the number of trained full-time equivalent polygraph examiners for administering polygraphs under the Anti-Border Corruption Act of 2010, as amended by this subtitle.

1134.

(a)

Subsection (l) of section 411 of the Homeland Security Act of 2002 (6 U.S.C. 211) is amended to read as follows:

(l)

(1)

The Commissioner shall ensure that every agent and officer of U.S. Customs and Border Protection receives a minimum of 21 weeks of training that are directly related to the mission of the U.S. Border Patrol, Air and Marine, and the Office of Field Operations before the initial assignment of such agents and officers.

(2)

The Commissioner shall work in consultation with the Director of the Federal Law Enforcement Training Centers to establish guidelines and curriculum for the training of agents and officers of U.S. Customs and Border Protection under subsection (a).

(3)

The Commissioner shall annually require all agents and officers of U.S. Customs and Border Protection who are required to undergo training under subsection (a) to participate in not fewer than eight hours of continuing education annually to maintain and update understanding of Federal legal rulings, court decisions, and Department policies, procedures, and guidelines related to relevant subject matters.

(4)

Not later than one year after the date of the enactment of this subsection, the Commissioner shall develop and require training courses geared towards the development of leadership skills for mid- and senior-level career employees not later than one year after such employees assume duties in supervisory roles.

(b)

Not later than 180 days after the date of the enactment of this Act, the Commissioner shall submit to the Committee on Homeland Security and the Committee on Ways and Means of the House of Representatives and the Committee on Homeland Security and Governmental Affairs and the Committee on Finance of the Senate a report identifying the guidelines and curriculum established to carry out subsection (l) of section 411 of the Homeland Security Act of 2002, as amended by subsection (a) of this section.

(c)

Not later than four years after the date of the enactment of this Act, the Comptroller General of the United States shall submit to the Committee on Homeland Security and the Committee on Ways and Means of the House of Representatives and the Committee on Homeland Security and Governmental Affairs and the Committee on Finance of the Senate a report that assesses the training and education, including continuing education, required under subsection (l) of section 411 of the Homeland Security Act of 2002, as amended by subsection (a) of this section.

1141.

(a)

Subtitle A of title XX of the Homeland Security Act of 2002 (6 U.S.C. 601 et seq.) is amended by adding at the end the following new section:

2009.

(a)

There is established in the Department a program to be known as Operation Stonegarden, under which the Secretary, acting through the Administrator, shall make grants to eligible law enforcement agencies, through the State administrative agency, to enhance border security in accordance with this section.

(b)

To be eligible to receive a grant under this section, a law enforcement agency—

(1)

shall be located in—

(A)

a State bordering Canada or Mexico; or

(B)

a State or territory with a maritime border; and

(2)

shall be involved in an active, ongoing, U.S. Customs and Border Protection operation coordinated through a U.S. Border Patrol sector office.

(c)

The recipient of a grant under this section may use such grant for—

(1)

equipment, including maintenance and sustainment costs;

(2)

personnel, including overtime and backfill, in support of enhanced border law enforcement activities;

(3)

any activity permitted for Operation Stonegarden under the Department of Homeland Security’s Fiscal Year 2017 Homeland Security Grant Program Notice of Funding Opportunity; and

(4)

any other appropriate activity, as determined by the Administrator, in consultation with the Commissioner of U.S. Customs and Border Protection.

(d)

The Secretary shall award grants under this section to grant recipients for a period of not less than 36 months.

(e)

For each of fiscal years 2018 through 2022, the Administrator 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 that contains information on the expenditure of grants made under this section by each grant recipient.

(f)

There is authorized to be appropriated $110,000,000 for each of fiscal years 2018 through 2022 for grants under this section.

(b)

Subsection (a) of section 2002 of the Homeland Security Act of 2002 (6 U.S.C. 603) is amended to read as follows:

(a)

The Secretary, through the Administrator, may award grants under sections 2003, 2004, and 2009 to State, local, and tribal governments, as appropriate.

(c)

The table of contents in section 1(b) of the Homeland Security Act of 2002 is amended by inserting after the item relating to section 2008 the following:

Sec. 2009. Operation Stonegarden.

1151.

In addition to amounts otherwise authorized to be appropriated, there are authorized to be appropriated for each of fiscal years 2018 through 2022, $24,800,000,000 to implement this title and the amendments made by this title, of which—

(1)

$9,300,000,000 shall be used by the Department of Homeland Security to construct physical barriers pursuant to section 102 of the Illegal Immigration and Immigrant Responsibility Act of 1996, as amended by section 1111 of this division;

(2)

$1,000,000,000 shall be used by the Department to improve tactical infrastructure pursuant to such section 102, as amended by such section 1111;

(3)

$5,800,000,000 shall be used by the Department to carry out section 1112 of this division;

(4)

$200,000,000 shall be used by the Coast Guard for deployments of personnel and assets under paragraph (18) of section 1113(a) of this division; and

H.R. 4760 (115^th): Securing America’s Future Act of 2018

Compare this bill to another bill:

React to this bill with an emoji

Save your opinion on this bill on a six-point scale from strongly oppose to strongly support

Primary Source

Widget for your website

Follow GovTrack on social media for more updates:

On GovTrack Insider:

Summary of this bill