Text of US SB 1258 (2011)

II 112TH CONGRESS 1ST SESSION S. 1258 To provide for comprehensive immigration reform, and for other purposes. IN THE SENATE OF THE UNITED STATES JUNE 22, 2011 Mr. MENENDEZ (for himself, Mr. REID, Mr. LEAHY, Mr. DURBIN, Mr. SCHU- MER, Mr. KERRY, Mrs. MURRAY, and Mrs. GILLIBRAND) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To provide for comprehensive immigration reform, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Comprehensive Immi- 4 gration Reform Act of 2011’’. 5 SEC. 2. TABLE OF CONTENTS. 6 The table of contents for this Act is as follows: 7 Sec. 1. Short title. Sec. 2. Table of contents. Sec. 3. References to Immigration and Nationality Act. Sec. 4. Definitions. TITLE I—IMMIGRATION VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 2 •S 1258 IS Subtitle A—Registration of Undocumented Individuals, the Dream Act, Family Unity, and AgJobs PART I—LAWFUL PROSPECTIVE IMMIGRANT STATUS Sec. 111. Lawful prospective immigrant status. Sec. 112. Adjustment of status for lawful prospective immigrants. Sec. 113. Administrative review, removal proceedings, and judicial review for aliens who have applied for lawful prospective immigrant sta- tus. Sec. 114. Confidentiality of information. Sec. 115. Aliens not subject to direct numerical limitations. Sec. 116. Employer protections. Sec. 117. Assignment of Social Security number. PART II—IMPLEMENTATION Sec. 121. Rulemaking. Sec. 122. Exemption from government contracting and hiring rules. Sec. 123. Authority to acquire leaseholds. Sec. 124. Privacy and civil liberties. Sec. 125. Statutory construction. PART III—MISCELLANEOUS Sec. 131. Correction of Social Security records. Sec. 132. Fraud prevention program. Sec. 133. Data collection requirements. PART IV—DREAM ACT Sec. 141. Short title. Sec. 142. Definitions. Sec. 143. Conditional permanent resident status for certain long-term residents who entered the United States as children. Sec. 144. Terms of conditional permanent resident status. Sec. 145. Removal of conditional basis of permanent resident status. Sec. 146. Regulations. Sec. 147. Penalties for false statements. Sec. 148. Confidentiality of information. Sec. 149. Higher education assistance. PART V—AGRICULTURAL JOB OPPORTUNITIES, BENEFITS, AND SECURITY Sec. 150. Short titles. CHAPTER 1—BLUE CARD STATUS Sec. 151. Requirements for blue card status. Sec. 152. Application for blue card status. Sec. 153. Adjustment to permanent residence. Sec. 154. Other provisions. Sec. 155. Correction of Social Security records. Sec. 156. Determination and use of user fees. Sec. 157. Rulemaking. Sec. 158. Reports to Congress. CHAPTER 2—REFORM OF H–2A WORKER PROGRAM VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6211 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 3 •S 1258 IS Sec. 159. Amendments to the Immigration and Nationality Act. PART VI—FAMILY UNITY REFORMS Sec. 161. Promoting family unity. Sec. 162. Effective legalization program funding. Subtitle B—Worksite Enforcement Sec. 171. Unlawful employment of aliens. Sec. 172. Compliance by Department of Homeland Security contractors with confidentiality safeguards. Sec. 173. Increasing security and integrity of Social Security cards. Sec. 174. Increasing security and integrity of immigration documents. Sec. 175. Responsibilities of the Social Security Administration. Sec. 176. Antidiscrimination protections. Sec. 177. Immigration enforcement support by the Internal Revenue Service and the Social Security Administration. Sec. 178. Enhanced Verification System. Sec. 179. Authorization of appropriations. TITLE II—IMMIGRATION ENFORCEMENT AND REFORM Subtitle A—Border Enforcement PART I—ADDITIONAL ASSETS AND RESOURCES Sec. 201. Effective date triggers. Sec. 202. Customs and border protection personnel. Sec. 203. Secure communication; equipment; and grants for border personnel. Sec. 204. Infrastructure improvements and expansion of land ports of entry. Sec. 205. Additional authorities for port of entry construction. Sec. 206. Additional increases in immigration enforcement personnel. Sec. 207. Additional immigration court personnel. Sec. 208. Improved training for border security and immigration enforcement officers. Sec. 209. Inventory of assets and personnel. Sec. 210. U.S. Customs and Border Protection assets. Sec. 211. Technological assets and programs. PART II—ENHANCED COORDINATION AND PLANNING FOR BORDER SECURITY Sec. 216. Annual report on improving North American security information ex- change. Sec. 217. Cooperation with the Government of Mexico. Sec. 218. Expansion of commerce security programs. Sec. 219. Northern Border and Southern Border Drug Prosecution Initiative. Sec. 220. Border Relief Grant Program. Sec. 221. Report on deaths and strategy study. Sec. 222. Immigration and United States-Mexico Border Enforcement Commis- sion. Sec. 223. Preemption. Sec. 224. Inherent authority. Sec. 225. Border protection strategy. Sec. 226. Border communities liaison office. Sec. 227. Authorization of appropriations. VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6211 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 4 •S 1258 IS Subtitle B—Interior Enforcement PART I—PREVENTING UNAUTHORIZED ENTRIES AND ENSURING REMOVAL Sec. 235. US–VISIT System. Sec. 236. Illegal entry and reentry. Sec. 237. Deterring aliens ordered removed from remaining in the United States unlawfully. Sec. 238. Biometric screening. Sec. 239. Encouraging aliens to depart voluntarily. Sec. 240. Cancellation of visas. Sec. 241. Penalties relating to vessels and aircraft. Sec. 242. Sanctions for countries that delay or prevent repatriation of their citi- zens and nationals. Sec. 243. State Criminal Alien Assistance Program. Sec. 244. Procedures regarding aliens apprehended by State and local law en- forcement officers. Sec. 245. Reform of passport, visa, and immigration fraud offenses. Sec. 246. Directives related to passport and document fraud. Sec. 247. Expanding the definition of conveyances subject to forfeiture. Sec. 248. Criminal forfeiture. Sec. 249. Advance delivery of information including passenger manifests. Sec. 250. Unlawful flight from immigration or customs controls and disobeyance of lawful orders. Sec. 251. Reducing illegal immigration and alien smuggling on tribal lands. Sec. 252. Diplomatic security service. Sec. 253. Increased penalties barring the admission of convicted sex offenders failing to register and requiring deportation of sex offenders failing to register. Sec. 254. Aggravated felony. Sec. 255. Increased criminal penalties related to gang violence. PART II—DETENTION REFORM Sec. 261. Definitions. Sec. 262. Protections for vulnerable populations. Sec. 263. Apprehension procedures for immigration enforcement-related activi- ties relating to children. Sec. 264. Detention of families. Sec. 265. Access to children, local and State courts, child welfare agencies, and consular officials. Sec. 266. Memoranda of understanding. Sec. 267. Mandatory training. Sec. 268. Alternatives to detention. Sec. 269. Detention conditions. Sec. 270. Access to counsel. Sec. 271. Group legal orientation presentations. Sec. 272. Protections for refugees. Sec. 273. Immigration and Customs Enforcement Ombudsman. Sec. 274. Elimination of time limits on asylum applications. Sec. 275. Efficient asylum determination process and detention of asylum seek- ers. Sec. 276. Protection of stateless persons in the United States. Sec. 277. Authority to designate certain groups of refugees for consideration. Sec. 278. Admission of refugees in the absence of the annual presidential deter- mination. VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6211 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 5 •S 1258 IS Subtitle C—Reforming America’s Legal Immigration System PART I—STANDING COMMISSION ON FOREIGN WORKERS, LABOR MARKETS, AND THE NATIONAL INTEREST Sec. 300. Standing Commission on Foreign Workers, Labor Markets, and the National Interest. PART II—FAMILY AND EMPLOYMENT VISA REFORMS CHAPTER 1—FAMILY AND EMPLOYMENT-BASED IMMIGRANT VISAS Sec. 301. Recapture of immigrant visas lost to bureaucratic delay. Sec. 302. Reclassification of spouses and minor children of lawful permanent residents as immediate relatives. Sec. 303. Retention of priority date. Sec. 304. Discretionary authority with respect to removal or deportation of cit- izen and resident immediate family members. Sec. 305. Military families. Sec. 306. Equal treatment for all stepchildren. Sec. 307. Widows, widowers, and orphans. Sec. 308. Fiance´ child status protection. Sec. 309. Special humanitarian visas. Sec. 310. Exemption from immigrant visa limit for certain veterans from the Philippines. Sec. 311. Affidavit of support. Sec. 312. Retaining workers subject to green card backlog. CHAPTER 2—UNITING AMERICAN FAMILIES ACT Sec. 315. Short title. Sec. 316. Definitions of permanent partner and permanent partnership. Sec. 317. Immigrant visas. Sec. 318. Refugees and asylees. Sec. 319. Inadmissible aliens. Sec. 320. Nonimmigrant status for permanent partners awaiting the availability of an immigrant visa. Sec. 321. Conditional permanent resident status. Sec. 322. Deportation and removal. Sec. 323. Adjustment of status; criminal penalties; other requirements. Sec. 324. Naturalization for permanent partners of citizens. Sec. 325. Application of family unity provisions to other laws. CHAPTER 3—REFORMS TO SPECIFIC EMPLOYMENT-BASED VISA CATEGORIES SUBCHAPTER A—EB–5 PROGRAM REAUTHORIZATION Sec. 326. EB–5 Permanent reauthorization of EB–5 Regional Center Program. SUBCHAPTER B—ADJUSTMENTS TO OTHER SELECT VISA PROGRAMS Sec. 331. Elimination of sunset provisions. Sec. 332. Permanent authorization of the nonimmigrant nurses in health pro- fessional shortage areas program. Sec. 333. Incentives for physicians to practice in medically underserved commu- nities. Sec. 334. Retaining physicians in medically underserved communities. Sec. 335. Temporary visas for individuals from Ireland. VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6211 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 6 •S 1258 IS CHAPTER 4—MISCELLANEOUS EMPLOYMENT VISA REFORMS Sec. 336. Providing premium processing of employment-based visa petitions. Sec. 337. Visa revalidation. Sec. 338. Application fees for intending immigrants. Sec. 339. Employment of spouses. Sec. 340. Time limits for nonimmigrants to depart the United States. CHAPTER 5—POWER ACT Sec. 341. Short titles. Sec. 342. Victims of serious labor and employment violations or crime. Sec. 343. Labor enforcement actions. Sec. 344. Authorization of appropriations. Subtitle D—Immigrant Integration and Other Reforms PART I—STRENGTHEN AND UNITE COMMUNITIES WITH CIVICS EDUCATION AND ENGLISH SKILLS CHAPTER 1—EXPANDING ENGLISH LITERACY, UNITED STATES HISTORY, AND CIVICS EDUCATION Sec. 351. Increased investment in English literacy, United States history, and civics education under the Adult Education And Family Lit- eracy Act. Sec. 352. Definitions of English language learner. Sec. 353. Credits for teachers of english language learners. Sec. 354. Research in adult education. CHAPTER 2—SUPPORTING ENGLISH LANGUAGE ACQUISITION AND ADULT EDUCATION IN THE WORKFORCE Sec. 356. Credit for employer-provided adult English literacy and basic edu- cation programs. Sec. 357. Presidential award for business leadership in promoting United States citizenship. CHAPTER 3—BUILDING STRONGER COMMUNITIES Sec. 361. Office of Citizenship and New Americans. Sec. 362. Grants to States. Sec. 363. Authorized activities. Sec. 364. Reporting and evaluation. Sec. 365. New Citizens Award Program. Sec. 366. Rule of construction. Sec. 367. Report to Congress on fee increases. Sec. 368. Authorization of appropriations. PART II—EMERGENCY RELIEF FOR CERTAIN POPULATIONS Sec. 371. Adjustment of status for certain Haitian orphans. Sec. 372. Adjustment of status for certain Liberian nationals. PART III—STATE COURT INTERPRETER GRANT PROGRAM Sec. 381. Findings. Sec. 382. State Court Interpreter Program. Sec. 383. Authorization of appropriations. VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6211 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 7 •S 1258 IS PART IV—OTHER MATTERS Sec. 391. Adjustment of status for certain victims of terrorism. Sec. 392. Development of assessment and strategy addressing factors driving migration. Sec. 393. Prioritization of migration source countries by the United States Agency for International Development. Sec. 394. Sense of Congress on increased United States foreign policy coher- ency in the Western Hemisphere. SEC. 3. REFERENCES TO IMMIGRATION AND NATIONALITY 1 ACT. 2 Except as otherwise expressly provided, whenever in 3 this Act an amendment or repeal is expressed in terms 4 as an amendment to, or repeal of, a section or other provi- 5 sion, the reference shall be considered to be made to a 6 section or other provision of the Immigration and Nation- 7 ality Act (8 U.S.C. 1101 et seq.). 8 SEC. 4. DEFINITIONS. 9 In this Act: 10 (1) DEPARTMENT.—The term ‘‘Department’’ 11 means the Department of Homeland Security. 12 (2) NORTHERN BORDER.—The term ‘‘Northern 13 border’’ means the international land border between 14 the United States and Canada. 15 (3) SECRETARY .—The term ‘‘Secretary’’ 16 means the Secretary of Homeland Security. 17 (4) SOUTHERN BORDER.—The term ‘‘Southern 18 border’’ means the international land border between 19 the United States and Mexico. 20 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 8 •S 1258 IS TITLE I—IMMIGRATION REG- 1 ISTRATION AND EMPLOY- 2 MENT 3 Subtitle A—Registration of Un- 4 documented Individuals, the 5 Dream Act, Family Unity, and 6 AgJobs 7 PART I—LAWFUL PROSPECTIVE IMMIGRANT 8 STATUS 9 SEC. 111. LAWFUL PROSPECTIVE IMMIGRANT STATUS. 10 (a) IN GENERAL.— 11 (1) AUTHORITY TO GRANT LAWFUL PROSPEC- 12 TIVE IMMIGRANT STATUS.—Notwithstanding any 13 other provision of law, the Secretary may grant law- 14 ful prospective immigrant status to an alien who— 15 (A) submits an application for such status; 16 and 17 (B) meets the requirements under this sec- 18 tion. 19 (2) TREATMENT OF APPLICANTS.—An appli- 20 cant for lawful prospective immigrant status under 21 this section shall be treated as an applicant for ad- 22 mission to the United States. 23 (b) ELIGIBILITY REQUIREMENTS.— 24 (1) IN GENERAL.— 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 9 •S 1258 IS (A) INADMISSIBILITY.—Except as provided 1 in paragraph (3), an alien may not be granted 2 lawful prospective immigrant status if the alien 3 is inadmissible under section 212(a) of the Im- 4 migration and Nationality Act (8 U.S.C. 5 1182(a)). 6 (B) PHYSICAL PRESENCE.—An alien may 7 not be granted lawful prospective immigrant 8 status under this section unless the alien— 9 (i) is physically present in the United 10 States on the date on which alien applies 11 for such status; 12 (ii) was physically present in the 13 United States before June 1, 2011; and 14 (iii) has maintained continuous phys- 15 ical presence in the United States between 16 June 1, 2011 and the date on which the 17 alien is granted such status. 18 (2) GROUNDS OF INELIGIBILITY.— 19 (A) IN GENERAL.—An alien is ineligible 20 for lawful prospective immigrant status under 21 this section if the Secretary determines that the 22 alien— 23 (i) was convicted of any offense under 24 Federal or State law punishable with a 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 10 •S 1258 IS maximum term of imprisonment of more 1 than 1 year; 2 (ii) is a person described in subpara- 3 graph (A)(iii), (E)(i), or (E)(ii) of section 4 237(a)(2) of the Immigration and Nation- 5 ality Act (8 U.S.C. 1227(a)(2)); 6 (iii) ordered, incited, assisted, or oth- 7 erwise participated in the persecution of 8 any person on account of race, religion, na- 9 tionality, membership in a particular social 10 group, or political opinion; 11 (iv) is entering, has entered, or has 12 attempted to enter, the United States ille- 13 gally on or after June 1, 2011; or 14 (v) was, as of June 1, 2011— 15 (I) an alien lawfully admitted for 16 permanent residence; 17 (II) an alien granted asylum 18 under section 208 of the Immigration 19 and Nationality Act or admitted as a 20 refugee under section 207 of such 21 Act; 22 (III) an alien who, according to 23 the records of the Secretary, and not- 24 withstanding any unauthorized em- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 11 •S 1258 IS ployment or other violation of non- 1 immigrant status— 2 (aa) is in a period of author- 3 ized stay in any nonimmigrant 4 status (other than an alien con- 5 sidered to be in a nonimmigrant 6 status solely by reason of section 7 244(f)(4) of such Act); and 8 (bb) has been in the United 9 States in a nonimmigrant status 10 for 5 consecutive years; 11 (IV) an alien paroled into the 12 United States under section 212(d)(5) 13 of such Act for purposes of prosecu- 14 tion or of serving as a witness in pro- 15 ceedings being, or to be, conducted by 16 judicial, administrative, or legislative 17 bodies in the United States; or 18 (V) an alien paroled into the 19 Commonwealth of the Northern Mar- 20 iana Islands. 21 (B) CONSTRUCTION.—For purposes of de- 22 termining ineligibility under this paragraph, 23 section 101(a)(48) of the Immigration and Na- 24 tionality Act (8 U.S.C. 1101(a)(48)) shall apply 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 12 •S 1258 IS to determinations of conviction or sentencing 1 for an offense. 2 (3) GROUNDS OF INADMISSIBILITY.— 3 (A) IN GENERAL.—In determining an 4 alien’s admissibility under paragraph (1)(B)— 5 (i) section 212(a)(5) of the Immigra- 6 tion and Nationality Act (8 U.S.C. 7 1182(a)(5)) shall not apply; 8 (ii) paragraphs (6)(A), (6)(B), (6)(C), 9 (6)(D), (6)(F), (6)(G), (7), (9), and 10 (10)(B) of section 212(a) of such Act shall 11 not apply with regard to conduct or unlaw- 12 ful presence occurring before the date of 13 application; 14 (iii) the Secretary may not waive— 15 (I) subparagraphs (B), (C), 16 (D)(ii), (E), (H), (I), or (J) of section 17 212(a)(2) of such Act (relating to 18 criminals); 19 (II) section 212(a)(3) of such Act 20 (relating to security and related 21 grounds); 22 (III) subparagraphs (A), (C), or 23 (D) of section 212(a)(10) of such Act 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 13 •S 1258 IS (relating to polygamists and child ab- 1 ductors); or 2 (IV) paragraph (6)(A)(i) of sec- 3 tion 212(a) of such Act (with respect 4 to any entries occurring on or after 5 June 1, 2011); and 6 (iv) the Secretary may waive the ap- 7 plication of any provision under section 8 212(a) of such Act not listed under clause 9 (iii) on behalf of an individual alien for hu- 10 manitarian purposes, to ensure family 11 unity, or if such waiver is otherwise in the 12 public interest. 13 (B) CONSTRUCTION.—Nothing in this 14 paragraph may be construed to— 15 (i) require the Secretary to commence 16 removal proceedings against an alien; or 17 (ii) affect the authority of the Sec- 18 retary other than under this paragraph to 19 waive the provisions of section 212(a) of 20 the Immigration and Nationality Act (8 21 U.S.C. 1182(a)). 22 (4) CONTINUOUS PHYSICAL PRESENCE.—Any 23 absence from the United States without authoriza- 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 14 •S 1258 IS tion pursuant to subsection (d)(1) shall constitute a 1 break in continuous physical presence. 2 (5) APPLICABILITY OF OTHER PROVISIONS.— 3 Sections 208(d)(6) and 240B(d) of the Immigration 4 and Nationality Act (8 U.S.C. 1158(d)(6) and 5 1229c(d)) shall not apply to an alien with respect to 6 an application for lawful prospective immigrant sta- 7 tus under this section. 8 (c) APPLICATION PROCEDURES.— 9 (1) FILING OF APPLICATION.— 10 (A) IN GENERAL.—In accordance with the 11 rulemaking procedures described in section 12 121— 13 (i) the Secretary shall prescribe by in- 14 terim final rule published in the Federal 15 Register— 16 (I) the procedures for an alien in 17 the United States to apply for lawful 18 prospective immigrant status; 19 (II) the procedures for an alien 20 granted lawful prospective immigrant 21 status to petition for a spouse or child 22 outside the United States to be classi- 23 fied as a lawful prospective immi- 24 grant; and 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 15 •S 1258 IS (III) the evidence required to 1 demonstrate eligibility for such status, 2 or otherwise required as part of the 3 application, including information 4 about the alien’s spouse or children; 5 and 6 (ii) the Secretary of State shall pre- 7 scribe by regulation published in the Fed- 8 eral Register— 9 (I) the procedures for an alien 10 overseas who is the beneficiary of an 11 approved petition for lawful prospec- 12 tive immigrant status to apply at a 13 consulate for a visa or other appro- 14 priate documentation authorizing 15 travel to a United States port of 16 entry; and 17 (II) the evidence required to 18 demonstrate eligibility for such docu- 19 mentation. 20 (B) RECEIPT OF APPLICATIONS.—The Sec- 21 retary shall accept applications from aliens in 22 the United States for lawful prospective immi- 23 grant status during the 1-year period beginning 24 on the first day of the tenth month that begins 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 16 •S 1258 IS after the date of the enactment of this Act. If 1 the Secretary determines, during such 1-year 2 period, that additional time is required to proc- 3 ess applications for such status or for other 4 good cause, the Secretary may extend the pe- 5 riod for accepting applications by not more than 6 6 additional months. 7 (C) APPLICATION BY ALIENS APPRE- 8 HENDED BEFORE START OF APPLICATION PE- 9 RIOD.—If an alien who is apprehended during 10 the application period set forth in subparagraph 11 (B) can establish prima facie eligibility for law- 12 ful prospective immigrant status under this sec- 13 tion, the Secretary shall provide the alien with 14 a reasonable opportunity to file an application 15 under this section after regulations imple- 16 menting this section are promulgated. 17 (D) APPLICATION BY ALIENS IN REMOVAL 18 PROCEEDINGS.—Notwithstanding any provision 19 of the Immigration and Nationality Act (8 20 U.S.C. 1101 et seq.)— 21 (i) if the Secretary determines that an 22 alien, during the application period set 23 forth in subparagraph (B), is in removal, 24 deportation, or exclusion proceedings be- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00016 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 17 •S 1258 IS fore the Executive Office for Immigration 1 Review and is prima facie eligible for law- 2 ful prospective immigrant status under this 3 section— 4 (I) the Secretary shall notify the 5 Executive Office for Immigration Re- 6 view of such determination; and 7 (II) upon the consent of the 8 alien, the Executive Office for Immi- 9 gration Review shall— 10 (aa) terminate such pro- 11 ceedings without prejudice to fu- 12 ture proceedings on any basis; 13 and 14 (bb) provide the alien a rea- 15 sonable opportunity to apply for 16 such status; and 17 (ii) if the Executive Office for Immi- 18 gration Review determines that an alien, 19 during the application period set forth in 20 subparagraph (B), is in removal, deporta- 21 tion, or exclusion proceedings before the 22 Executive Office for Immigration Review 23 and is prima facie eligible for lawful pro- 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00017 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 18 •S 1258 IS spective immigrant status under this sec- 1 tion— 2 (I) the Executive Office of Immi- 3 gration Review shall notify the Sec- 4 retary of such determination; and 5 (II) if the Secretary does not dis- 6 pute the determination of prima facie 7 eligibility within 14 days, the Execu- 8 tive Office for Immigration Review, 9 upon consent of the alien, shall— 10 (aa) terminate such pro- 11 ceedings without prejudice to fu- 12 ture proceedings on any basis; 13 and 14 (bb) permit the alien a rea- 15 sonable opportunity to apply for 16 such status. 17 (E) APPLICATION BY ALIENS WITH CER- 18 TAIN ORDERS.— 19 (i) IN GENERAL.—An alien who is 20 present in the United States and has been 21 ordered excluded, deported, or removed, or 22 ordered to depart voluntarily from the 23 United States under any provision of the 24 Act— 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 19 •S 1258 IS (I) notwithstanding such order or 1 section 241(a)(5) of the Immigration 2 and Nationality Act (8 U.S.C. 3 1231(a)(5)), may apply for lawful pro- 4 spective immigrant status under this 5 section if the alien meets all of the 6 other conditions set forth in this sec- 7 tion; and 8 (II) shall not be required to file 9 a separate motion to reopen, recon- 10 sider, or vacate the exclusion, deporta- 11 tion, removal, or voluntary departure 12 order. 13 (ii) EFFECT OF GRANT OF STATUS.— 14 If the Secretary grants lawful prospective 15 immigrant status to an alien under this 16 section, the order against the alien de- 17 scribed in clause (i) shall be rendered null 18 and void by operation of law. 19 (iii) EFFECT OF DENIAL OF STA- 20 TUS.—If the Secretary renders a final ad- 21 ministrative decision to deny an alien’s ap- 22 plication for lawful prospective immigrant 23 status under this section, the order de- 24 scribed in clause (i) shall be effective and 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00019 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 20 •S 1258 IS enforceable to the same extent as if the ap- 1 plication had not been made. 2 (2) APPLICATION FORM.— 3 (A) IN GENERAL.—The Secretary shall 4 create an application form that an alien shall be 5 required to complete to be granted lawful pro- 6 spective immigrant status. 7 (B) LANGUAGE AND ASSISTANCE.—The 8 Secretary shall make available forms and ac- 9 companying instructions in the most common 10 languages spoken by persons in the United 11 States, as determined by the Secretary. The 12 Secretary shall create a plan for providing rea- 13 sonable accommodation to individuals with dis- 14 abilities in accordance with applicable law. 15 (C) APPLICATION INFORMATION.—The ap- 16 plication form created under this paragraph 17 shall request such information as the Secretary 18 determines necessary and appropriate. The ap- 19 plication, and all information submitted as part 20 of the application process, shall be submitted in 21 English. 22 (3) SECURITY AND LAW ENFORCEMENT BACK- 23 GROUND CHECKS.— 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00020 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 21 •S 1258 IS (A) SUBMISSION OF BIOMETRIC AND BIO- 1 GRAPHIC DATA.—The Secretary may not grant 2 lawful prospective immigrant status to an alien 3 unless the alien submits biometric and bio- 4 graphic data in accordance with procedures es- 5 tablished by the Secretary, or, with respect to 6 overseas applications for visas or other docu- 7 mentation of status submitted pursuant to reg- 8 ulations promulgated under section 9 601(c)(1)(A)(ii), by the Secretary of State. The 10 Secretary shall provide an alternative procedure 11 for applicants who cannot provide the standard 12 biometric data because of a physical impair- 13 ment. 14 (B) BACKGROUND CHECKS.—Before grant- 15 ing lawful prospective immigrant status to any 16 alien, the Secretary shall complete, to the satis- 17 faction of the Secretary, security and law en- 18 forcement background checks on the alien, uti- 19 lizing biometric, biographic, and other data that 20 the Secretary determines to be appropriate, to 21 determine the existence of any criminal, na- 22 tional security, or other factors that would 23 render the alien ineligible for status under this 24 section. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00021 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 22 •S 1258 IS (4) FEES AND PENALTIES.— 1 (A) PROCESSING FEES.— 2 (i) IN GENERAL.—Aliens older than 3 14 years of age who are applying for law- 4 ful prospective immigrant status, applying 5 for an extension of such status, or peti- 6 tioning for classification of a spouse or 7 child outside the United States as a lawful 8 prospective immigrant, shall be required to 9 pay a processing fee to the Department of 10 Homeland Security. Spouses or children of 11 lawful prospective immigrants applying at 12 United States embassies or consulates for 13 a visa or other documentation of status 14 pursuant to regulations promulgated under 15 paragraph (1)(A)(ii) shall, regardless of 16 age, be required to pay a processing fee to 17 the Department of State, which may not 18 be waived. 19 (ii) AMOUNT.—The amount of the 20 fees under clause (i) shall be set by regula- 21 tion at a level sufficient to recover the full 22 cost of processing the application or peti- 23 tion. 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00022 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 23 •S 1258 IS (B) PENALTIES.—Aliens older than 21 1 years of age who are filing an initial application 2 for the first extension of the initial period of 3 lawful prospective immigrant status shall be re- 4 quired to pay a penalty of $500 in addition to 5 the processing fee required under subparagraph 6 (A). 7 (C) DEPOSIT AND SPENDING OF FEES.— 8 The processing fees required under subpara- 9 graph (A) shall be deposited as an offsetting 10 collection in the appropriate account of the rel- 11 evant agency identified in subparagraph (A)(i) 12 and shall remain available until expended. 13 (D) DEPOSIT, ALLOCATION, AND SPEND- 14 ING OF PENALTIES.—The penalty described in 15 subparagraph (B) shall be deposited and re- 16 main available as provided under section 166. 17 (5) INTERVIEW.—The Secretary may interview 18 an applicant for lawful prospective immigrant status 19 to determine eligibility for such status. 20 (6) ADJUDICATION OF APPLICATION FILED BY 21 ALIEN.— 22 (A) IN GENERAL.—The Secretary may 23 issue documentation of lawful prospective immi- 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00023 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 24 •S 1258 IS grant status, or documentation extending such 1 status, upon— 2 (i) receiving an application that estab- 3 lishes to the satisfaction of the Secretary 4 that the applicant is eligible for such sta- 5 tus through such documentary or other 6 evidence of eligibility as the Secretary may 7 require; and 8 (ii) completing all background and se- 9 curity checks to the satisfaction of the Sec- 10 retary. 11 (B) BURDEN OF PROOF.—An alien who is 12 applying for lawful prospective immigrant sta- 13 tus under this section shall prove, by a prepon- 14 derance of the evidence, that the alien has sat- 15 isfied the requirements of this section and is eli- 16 gible to receive such status. 17 (C) DENIAL OF APPLICATION.— 18 (i) FAILURE TO MEET ELIGIBILITY 19 REQUIREMENTS.—If an applicant does not 20 meet the eligibility requirements for lawful 21 prospective immigrant status, or for the 22 extension of such status, the Secretary 23 shall deny any application for such status 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00024 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 25 •S 1258 IS or extension filed by the applicant until the 1 applicant meets such requirements. 2 (ii) FAILURE TO SUBMIT EVIDENCE.— 3 The Secretary shall deny the application of 4 an alien who fails to submit requested ini- 5 tial evidence, including requested biometric 6 data, or any requested additional evidence 7 by the date required by the Secretary. 8 (iii) NEW APPLICATIONS.—An alien 9 whose application for lawful prospective 10 immigrant status is denied under clause 11 (ii) is not precluded from filing a new ap- 12 plication if the new application is filed 13 within the period allowed under paragraph 14 (1)(B) and contains all required fees and 15 penalties. 16 (7) EVIDENCE OF LAWFUL PROSPECTIVE IMMI- 17 GRANT STATUS.— 18 (A) IN GENERAL.—The Secretary shall 19 issue documentary evidence of lawful prospec- 20 tive immigrant status to each alien whose appli- 21 cation for such status has been approved— 22 (i) after final adjudication of such 23 alien’s application for such status; or 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00025 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 26 •S 1258 IS (ii) in the case of an alien outside the 1 United States, after admission to the 2 United States as a lawful prospective im- 3 migrant. 4 (B) FEATURES OF DOCUMENTATION.— 5 Documentary evidence provided under subpara- 6 graph (A)— 7 (i) shall be machine-readable and tam- 8 per-resistant; 9 (ii) shall contain a digitized photo- 10 graph and at least 1 other biometric iden- 11 tifier that can be authenticated; 12 (iii) shall, during the alien’s author- 13 ized period of admission under paragraphs 14 (3) and (4) of subsection (e), serve as a 15 valid travel and entry document for the 16 purpose of applying for admission to the 17 United States; 18 (iv) may be accepted during the pe- 19 riod of its validity by an employer as evi- 20 dence of employment authorization and 21 identity under section 274A(b)(1)(B) of 22 the Immigration and Nationality Act (8 23 U.S.C. 1324a(b)(1)(B)); and 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00026 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 27 •S 1258 IS (v) shall include such other features 1 and information prescribed by the Sec- 2 retary. 3 (d) LAWFUL PROSPECTIVE IMMIGRANT DEPEND- 4 ENTS.— 5 (1) IN GENERAL.—The Secretary may classify 6 an alien not present in the United States as a lawful 7 prospective immigrant if— 8 (A) the alien is the spouse (as defined in 9 section 101(a)(35) of the Immigration and Na- 10 tionality Act) or child (as defined in section 11 101(b)(1) of such Act) of a lawful prospective 12 immigrant; 13 (B) the spouse or child meets the eligibility 14 requirements under subsection (b) (other than 15 the physical presence requirements under sec- 16 tion (b)(1)(C)), except that section 212(a)(7) of 17 the Act shall apply; and 18 (C) the lawful prospective immigrant files 19 a petition in the United States for status as a 20 lawful prospective immigrant on behalf of the 21 spouse or child. 22 (2) REVOCATION OR DENIAL OF STATUS.—A 23 petition for classification as a lawful prospective im- 24 migrant filed on behalf of a spouse or child de- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00027 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 28 •S 1258 IS scribed in paragraph (1) shall be denied, an ap- 1 proved petition for classification as a lawful prospec- 2 tive immigrant for such spouse or child shall be re- 3 voked, and any lawful prospective immigrant status 4 granted to such spouse or child shall be revoked, if 5 the alien who filed the petition on behalf of the 6 spouse or child was not eligible for lawful prospec- 7 tive immigrant status at the time the alien filed an 8 application under section 111(a). 9 (e) TERMS AND CONDITIONS OF LAWFUL PROSPEC- 10 TIVE IMMIGRANT STATUS.— 11 (1) BENEFITS PENDING ADJUDICATION OF AP- 12 PLICATION.— 13 (A) IN GENERAL.—Until a final decision 14 on the application for lawful prospective immi- 15 grant status, an alien in the United States who 16 files an application under this section for lawful 17 prospective immigrant status— 18 (i) may in the Secretary’s discretion 19 receive advance parole to re-enter the 20 United States, but only when urgent hu- 21 manitarian circumstances compel such 22 travel; and 23 (ii) may not be detained by the Sec- 24 retary or removed from the United States, 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00028 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 29 •S 1258 IS unless the Secretary determines, in the 1 Secretary’s sole discretion, that such alien 2 is or has become— 3 (I) ineligible for lawful prospec- 4 tive immigrant status under section 5 (b)(2); 6 (II) inadmissible under section 7 (b)(1)(B), without regard to the possi- 8 bility of a waiver under section 9 (b)(3)(A)(iii); or 10 (III) removable under subpara- 11 graph (A)(iii), (E)(i), or (E)(ii) of sec- 12 tion 237 of the Immigration and Na- 13 tionality Act (8 U.S.C. 1227(a)(2)). 14 (B) RULE OF CONSTRUCTION.—Nothing in 15 this section may be construed to prevent the 16 Secretary from detaining an alien for up to 48 17 hours on the basis of probable cause that the 18 alien is a person described in subparagraph 19 (A)(ii). After the conclusion of the 48-hour pe- 20 riod, detention is authorized in accordance with 21 the provisions of the Immigration and Nation- 22 ality Act governing the removal process. 23 (C) EVIDENCE OF APPLICATION FILING.— 24 A document shall be issued by the Secretary 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00029 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 30 •S 1258 IS showing receipt of an application for lawful pro- 1 spective immigrant status. 2 (D) CONTINUING EMPLOYMENT.—An em- 3 ployer who knows that an alien employee is an 4 applicant for lawful prospective immigrant sta- 5 tus is not in violation of section 274A(a)(2) of 6 the Immigration and Nationality Act (8 U.S.C. 7 1324a(a)(2)) if the employer continues to em- 8 ploy the alien pending adjudication of the appli- 9 cation. 10 (E) APPLICABILITY OF OTHER PROVI- 11 SIONS.—Section 101(g) of such Act shall not 12 apply to an alien granted advance permission 13 under subparagraph (A)(ii) to reenter the 14 United States. 15 (2) BENEFITS OF LAWFUL PROSPECTIVE IMMI- 16 GRANT STATUS.— 17 (A) EMPLOYMENT.—Notwithstanding any 18 other provision of law, including section 19 241(a)(7) of the Immigration and Nationality 20 Act (8 U.S.C. 1231(a)(7)), lawful prospective 21 immigrants shall be granted employment au- 22 thorization incident to their lawful prospective 23 immigrant status. 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00030 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 31 •S 1258 IS (B) TRAVEL OUTSIDE THE UNITED 1 STATES.— 2 (i) IN GENERAL.—A lawful prospec- 3 tive immigrant may travel outside of the 4 United States and may be admitted (if 5 otherwise admissible) upon return to the 6 United States without having to obtain a 7 visa if— 8 (I) the alien is the bearer of 9 valid, unexpired documentary evidence 10 of lawful prospective immigrant status 11 that satisfies the conditions set forth 12 in subsection (c)(7); 13 (II) the alien’s absence from the 14 United States was not for a period ex- 15 ceeding 6 months; and 16 (III) the alien is not subject to 17 the bars on extension described in 18 paragraph (4)(C). 19 (ii) ADMISSIBILITY.—On seeking re- 20 admission to the United States after travel 21 outside the United States a lawful prospec- 22 tive immigrant shall establish that he or 23 she is not inadmissible in accordance with 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00031 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 32 •S 1258 IS section 235 of the Act, except as provided 1 by subsection (b)(3). 2 (iii) EFFECT ON PERIOD OF AUTHOR- 3 IZED ADMISSION.—Time spent outside the 4 United States under clause (i) shall not ex- 5 tend the most recent period of authorized 6 admission in the United States under 7 paragraph (3). 8 (C) PROTECTION FROM DETENTION OR 9 REMOVAL.—A lawful prospective immigrant 10 may not be detained by the Secretary or re- 11 moved from the United States, unless— 12 (i) the Secretary determines in her 13 discretion that such alien is or has be- 14 come— 15 (I) ineligible for lawful prospec- 16 tive immigrant status under sub- 17 section (b)(2); 18 (II) inadmissible under sub- 19 section (b)(1)(B); or 20 (III) removable under subpara- 21 graph (A)(iii), (E)(i), or (E)(ii) of sec- 22 tion 237 of the Immigration and Na- 23 tionality Act (8 U.S.C. 1227(a)(2)); 24 or 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00032 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 33 •S 1258 IS (ii) the alien’s lawful prospective im- 1 migrant status has expired or has been re- 2 voked under paragraph (6). 3 (D) RULE OF CONSTRUCTION.—Nothing in 4 this paragraph may be construed to prevent the 5 Secretary from detaining a lawful prospective 6 immigrant for up to 48 hours on the basis of 7 probable cause that the alien is a person de- 8 scribed in subparagraph (C)(i). After the con- 9 clusion of such 48-hour period, detention is au- 10 thorized in accordance with the provisions of 11 the Immigration and Nationality Act governing 12 the removal process. 13 (E) ADMISSION.—An alien granted status 14 as a lawful prospective immigrant shall be con- 15 sidered to have been admitted in lawful pro- 16 spective immigrant status as of the date of ap- 17 proval of the alien’s application or (in the case 18 of an alien outside the United States) on the 19 date such alien is admitted to the United 20 States, whichever is later. An alien in lawful 21 prospective immigrant status is lawfully admit- 22 ted, but is not a nonimmigrant or an alien who 23 has been lawfully admitted for permanent resi- 24 dence. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00033 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 34 •S 1258 IS (3) INITIAL PERIOD OF AUTHORIZED ADMIS- 1 SION.—Except as provided under paragraph (4), the 2 initial period of authorized admission for a lawful 3 prospective immigrant may not exceed 4 years from 4 the date on which such status is conferred. The Sec- 5 retary may in her discretion provide for shorter expi- 6 ration dates among subsets of lawful prospective im- 7 migrants, based upon the date of filing or other ap- 8 propriate factors, in order to encourage early filing, 9 vary expiration dates, or otherwise improve the ad- 10 ministration of the program. 11 (4) EXTENSION.— 12 (A) IN GENERAL.—The Secretary may ex- 13 tend a lawful prospective immigrant’s period of 14 lawful admission beyond the initial period de- 15 scribed in paragraph (3) only where the lawful 16 prospective immigrant has filed, in the United 17 States, a timely application for extension. In no 18 case, however, may the period of authorized ad- 19 mission provided in any such extension extend 20 past the date that is 11 years after the date of 21 enactment of this Act. 22 (B) ELIGIBILITY.—In order to be eligible 23 for an extension of the period of authorized ad- 24 mission under this paragraph, an alien shall 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00034 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 35 •S 1258 IS demonstrate continuing eligibility for status as 1 a lawful prospective immigrant and not be sub- 2 ject to any of the bars to extension in subpara- 3 graph (C). 4 (C) BARS TO EXTENSION.—A lawful pro- 5 spective immigrant shall not be eligible to ex- 6 tend such status if— 7 (i) the alien has violated any term or 8 condition of his or her lawful prospective 9 immigrant status; or 10 (ii) the period of authorized admission 11 of the lawful prospective immigrant has ex- 12 pired or been revoked for any reason. 13 (D) FILING OF APPLICATION FOR EXTEN- 14 SION.— 15 (i) IN GENERAL.—Except as provided 16 in clause (ii), an extension of status under 17 this subparagraph shall not be approved 18 where status as a lawful prospective immi- 19 grant expired or was revoked before the 20 date on which the application was filed. 21 (ii) EXCEPTION.—Failure to file be- 22 fore the period of previously authorized ad- 23 mission expired or was revoked may be ex- 24 cused in the discretion of the Secretary, 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00035 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 36 •S 1258 IS with any extension granted from the date 1 the previously authorized period of admis- 2 sion expired, where it is demonstrated at 3 the time of filing that— 4 (I) the delay was due to extraor- 5 dinary circumstances beyond the con- 6 trol of the applicant, and the Sec- 7 retary finds the delay commensurate 8 with the circumstances; and 9 (II) the alien has not otherwise 10 violated the terms or conditions of his 11 or her status as a lawful prospective 12 immigrant. 13 (E) SECURITY AND LAW ENFORCEMENT 14 BACKGROUND CHECKS.—An alien applying for 15 extension of status as a lawful prospective im- 16 migrant shall be required to submit to renewed 17 security and law enforcement background 18 checks that shall be completed to the satisfac- 19 tion of the Secretary before such extension may 20 be granted. 21 (F) DENIAL OF APPLICATION FOR EXTEN- 22 SION.—A denial of an application for extension 23 of status as a lawful prospective immigrant 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00036 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 37 •S 1258 IS shall be considered a revocation of such status 1 for purposes of this title. 2 (5) REGISTRATION REQUIREMENT.—Chapter 7 3 of title II of the Immigration and Nationality Act (8 4 U.S.C. 1301 et seq.) shall apply to lawful prospec- 5 tive immigrants, except that the Secretary may, in 6 the discretion of the Secretary, excuse a delay of up 7 to 90 days in complying with the requirement under 8 section 265 of such Act to file notice of change of 9 address. An alien whose failure to timely file such 10 notice of an address change has been excused by the 11 Secretary shall not be subject to the penalty under 12 section 266(b) of such Act for that failure. 13 (6) REVOCATION.— 14 (A) IN GENERAL.—At any time after an 15 alien has been granted lawful prospective immi- 16 grant status but has not yet adjusted from such 17 status to that of an alien lawfully admitted for 18 permanent residence under section 112, the 19 Secretary may revoke the alien’s status fol- 20 lowing appropriate notice to the alien and ex- 21 haustion or waiver of all applicable administra- 22 tive review procedures under section 113, if— 23 (i) the alien is or has become inadmis- 24 sible under subsection (b)(1)(B) or ineli- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00037 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 38 •S 1258 IS gible for such status under subsection 1 (b)(2); 2 (ii) the alien knowingly used docu- 3 mentation issued under this section for un- 4 lawful or fraudulent purposes; or 5 (iii) the alien is or was absent from 6 the United States for any single period of 7 more than 6 months since the grant of 8 lawful prospective immigrant status. 9 (B) ADDITIONAL EVIDENCE.—In consid- 10 ering revocation, the Secretary may require the 11 alien to submit additional evidence or to appear 12 for an interview. A failure to comply with such 13 requirements will result in revocation except 14 where the alien demonstrates to the Secretary’s 15 satisfaction that such failure was reasonably ex- 16 cusable and not willful. 17 (C) INVALIDATION OF DOCUMENTATION.— 18 Any documentation that is issued by the Sec- 19 retary under subsection (c)(7) to any alien shall 20 automatically be rendered invalid for any pur- 21 pose except departure, if the alien’s status as a 22 lawful prospective immigrant is revoked under 23 subparagraph (A). 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00038 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 39 •S 1258 IS (7) MEDICAL EXAMINATION.—A lawful prospec- 1 tive immigrant is required to undergo medical obser- 2 vation and examination. The Secretary, with the 3 concurrence of the Secretary of Health and Human 4 Services, shall prescribe policies and procedures for 5 the nature, frequency, and timing of such observa- 6 tion and examination. 7 (8) RULE OF CONSTRUCTION.—Nothing in this 8 section may be construed— 9 (A) to require the Secretary to revoke sta- 10 tus as a lawful prospective immigrant before 11 commencing removal proceedings with respect 12 to an alien described in subsection (a) who has 13 been granted such status, or in any way pro- 14 hibit the initiation of such proceedings against 15 a lawful prospective immigrant where such pro- 16 ceedings are authorized under this Act; or 17 (B) to authorize the Attorney General to 18 adjudicate or grant any application for status 19 as a lawful prospective immigrant, to receive or 20 consider an appeal from a denial or revocation 21 of lawful prospective immigrant status, or to 22 adjust the status of any lawful prospective im- 23 migrant to an alien lawfully admitted for per- 24 manent residence, unless the Secretary has del- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00039 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 40 •S 1258 IS egated such authority to the Attorney General 1 in appropriate cases pursuant to section 2 103(a)(6) of the Immigration and Nationality 3 Act (8 U.S.C. 1103(a)(6)). 4 (f) DISSEMINATION OF INFORMATION ON LAWFUL 5 PROSPECTIVE IMMIGRANT PROGRAM.—After the date of 6 the enactment of this Act, the Secretary, in cooperation 7 with entities approved by the Secretary, and in accordance 8 with a plan adopted by the Secretary in the Secretary’s 9 discretion, shall broadly disseminate information regard- 10 ing lawful prospective immigrant status, the rights and 11 benefits that flow from such status, and the requirements 12 to be satisfied to obtain this status. Such information shall 13 be disseminated in the top 5 principal languages, as deter- 14 mined by the Secretary in the Secretary’s discretion, spo- 15 ken by aliens who would qualify for status under this sec- 16 tion, including to television, radio, and print media to 17 which such aliens would have access. 18 SEC. 112. ADJUSTMENT OF STATUS FOR LAWFUL PROSPEC- 19 TIVE IMMIGRANTS. 20 (a) IN GENERAL.—Notwithstanding any other provi- 21 sion of law, including section 244(h) of the Immigration 22 and Nationality Act (8 U.S.C. 1254a(h)), the Secretary 23 may adjust the status of a lawful prospective immigrant 24 to that of an alien lawfully admitted for permanent resi- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00040 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 41 •S 1258 IS dence if the lawful prospective immigrant satisfies, in ad- 1 dition to all other requirements imposed by law, the eligi- 2 bility requirements under this section. 3 (b) ELIGIBILITY REQUIREMENTS.— 4 (1) LAWFUL PROSPECTIVE IMMIGRANT STA- 5 TUS.— 6 (A) IN GENERAL.—The alien shall be in a 7 period of authorized admission as a lawful pro- 8 spective immigrant and shall continue to sat- 9 isfy— 10 (i) the eligibility requirements for 11 such status under section 601(b); and 12 (ii) the terms and conditions of such 13 status under section 601(d). 14 (B) MAINTENANCE OF WAIVERS OF ADMIS- 15 SIBILITY.— 16 (i) IN GENERAL.—The grounds of in- 17 admissibility under section 212(a) of the 18 Immigration and Nationality Act (8 U.S.C. 19 1182(a)) that are made inapplicable or 20 previously waived for the alien under sec- 21 tion 111(b)(3) shall also be considered in- 22 applicable for purposes of the alien’s ad- 23 justment pursuant to this section. 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00041 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 42 •S 1258 IS (ii) EXCEPTION FOR POST-FILING 1 CONDUCT.—No waiver previously granted 2 shall apply to any inadmissibility under 3 section 111(b)(1)(B) arising out of conduct 4 occurring after the date on which the ap- 5 plication for lawful prospective immigrant 6 status was filed. 7 (C) PENDING REVOCATION PRO- 8 CEEDINGS.—If the Secretary has sent the appli- 9 cant a notice of intent to revoke the applicant’s 10 lawful prospective immigrant status under sec- 11 tion 111(e)(6)(A)(i), an application for adjust- 12 ment under this section may not be approved 13 until the Secretary has made a final determina- 14 tion on whether to revoke the applicant’s sta- 15 tus. 16 (2) BASIC CITIZENSHIP SKILLS.—— 17 (A) IN GENERAL.—Except as provided 18 under subparagraph (C), a lawful prospective 19 immigrant who is older than 14 years of age 20 shall establish that he or she— 21 (i) meets the requirements under sec- 22 tion 312 of the Immigration and Nation- 23 ality Act (8 U.S.C. 1423); or 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00042 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 43 •S 1258 IS (ii) is satisfactorily pursuing a course 1 of study, pursuant to standards established 2 by the Secretary of Education, in consulta- 3 tion with the Secretary, to achieve such an 4 understanding of English and knowledge 5 and understanding of the history and Gov- 6 ernment of the United States. 7 (B) RELATION TO NATURALIZATION EXAM- 8 INATION.—A lawful prospective immigrant who 9 demonstrates that he or she meets the require- 10 ments under section 312 of such Act may be 11 considered to have satisfied the requirements of 12 that section for purposes of becoming natural- 13 ized as a citizen of the United States under title 14 III of such Act. 15 (C) EXCEPTIONS.— 16 (i) MANDATORY.—Subparagraph (A) 17 shall not apply to any person who is unable 18 to comply with those requirements because 19 of a physical or developmental disability or 20 mental impairment as described in section 21 312(b)(1) of such Act. 22 (ii) DISCRETIONARY.—The Secretary 23 may waive all or part of subparagraph (A) 24 for a lawful prospective immigrant who is 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00043 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 44 •S 1258 IS at least 65 years of age on the date on 1 which an application is filed for adjust- 2 ment of status under this section. 3 (3) PAYMENT OF TAXES.— 4 (A) IN GENERAL.—Not later than the date 5 on which the application for adjustment of sta- 6 tus under this section is filed, the applicant 7 shall satisfy any applicable Federal tax liability. 8 (B) APPLICABLE FEDERAL TAX LIABIL- 9 ITY.—For purposes of subparagraph (A), the 10 term ‘‘applicable Federal tax liability’’ means li- 11 ability for unpaid assessed Federal taxes, in- 12 cluding penalties and interest, owed. 13 (4) CONTINUOUS PHYSICAL PRESENCE.—The 14 alien shall establish that the alien did not have a 15 single absence from the United States of more than 16 6 months during the period of admission as a lawful 17 prospective immigrant. 18 (5) MILITARY SELECTIVE SERVICE.—The alien 19 shall establish that the alien has registered under 20 the Military Selective Service Act (50 U.S.C. App. 21 451 et seq.), if the alien is subject to such registra- 22 tion under such Act. 23 (c) APPLICATION PROCEDURES.— 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00044 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 45 •S 1258 IS (1) IN GENERAL.—In accordance with the pro- 1 cedures described in section 121, the Secretary shall 2 prescribe by regulation the procedures for an alien 3 in the United States to apply for adjustment of sta- 4 tus under this section and the evidence required to 5 demonstrate eligibility for such adjustment. 6 (2) FILING OF APPLICATION.— 7 (A) BACK OF THE LINE.—An alien may 8 not adjust status to that of an alien lawfully 9 admitted for permanent residence under this 10 section until the earlier of— 11 (i) 30 days after an immigrant visa 12 has become available for all approved peti- 13 tions filed under sections 201 and 203 of 14 the Act that were filed before the date of 15 enactment of this Act; or 16 (ii) 8 years after the date of enact- 17 ment of this Act. 18 (B) ACCEPTANCE OF APPLICATIONS.—No 19 application to adjust status under this section 20 may be filed before the date that is 6 years 21 after the initial grant of lawful prospective im- 22 migrant status, regardless of whether such date 23 is after the date on which, pursuant to subpara- 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00045 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 46 •S 1258 IS graph (A), an alien may adjust status under 1 this section. 2 (3) FEES AND PENALTIES.— 3 (A) PROCESSING FEES.—The Secretary 4 shall impose a processing fee on applications for 5 adjustment filed under this section which shall 6 be sufficient to recover the full cost of adjudi- 7 cating the application, including the cost of tak- 8 ing and processing biometrics, and the cost of 9 expenses relating to prevention and investiga- 10 tion of fraud. 11 (B) PENALTIES.—An alien 21 years of age 12 or over who is filing an application for adjust- 13 ment of status under this section shall pay a 14 $1000 penalty to the Secretary, in addition to 15 the processing fee required under subparagraph 16 (A). 17 (C) DEPOSIT, ALLOCATION, AND SPENDING 18 OF FEES AND PENALTIES.—Fees and penalties 19 collected under subparagraph (B) shall be de- 20 posited and remain available as provided under 21 section 111. 22 (4) INTERVIEW.—The Secretary may interview 23 an applicant for adjustment under this section to de- 24 termine eligibility for such adjustment. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00046 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 47 •S 1258 IS (5) SECURITY AND LAW ENFORCEMENT BACK- 1 GROUND CHECKS.—An alien applying for adjustment 2 under this section shall be required to submit to a 3 renewed security and law enforcement background 4 check that shall be completed to the satisfaction of 5 the Secretary before such adjustment may be grant- 6 ed. 7 (6) ADJUDICATION OF ADJUSTMENT APPLICA- 8 TION.— 9 (A) EVIDENCE OF CONTINUOUS PHYSICAL 10 PRESENCE.—The Secretary shall determine 11 continuous physical presence based upon the 12 Secretary’s records of admission to the United 13 States or such other relevant information as the 14 Secretary may require. 15 (B) EVIDENCE OF PAYMENT OF TAXES.— 16 (i) IN GENERAL.—The alien may dem- 17 onstrate compliance with the requirement 18 under paragraph (b)(3) by submitting doc- 19 umentation, in accordance with regulations 20 promulgated by the Secretary, that estab- 21 lishes that— 22 (I) no such unpaid assessed Fed- 23 eral tax liability exists; 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00047 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 48 •S 1258 IS (II) all such outstanding liabil- 1 ities have been met; or 2 (III) the alien has entered into, 3 and is in compliance with, an agree- 4 ment for payment of all outstanding 5 liabilities with the Internal Revenue 6 Service. 7 (ii) IRS COOPERATION.—The Sec- 8 retary of the Treasury, in consultation 9 with the Secretary, shall establish proce- 10 dures pursuant to applicable provisions of 11 section 6103 of the Internal Revenue Code 12 of 1986, under which the Commissioner of 13 Internal Revenue shall provide documenta- 14 tion whereby the Secretary or the applicant 15 may establish the payment of all taxes re- 16 quired under this subsection, to verify that 17 the individual meets the requirements of 18 clause (i). 19 (C) BURDEN OF PROOF.—An alien who is 20 applying for adjustment of status under this 21 section shall prove, by a preponderance of the 22 evidence, that the alien has satisfied the re- 23 quirements of this section. 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00048 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 49 •S 1258 IS (d) 5-YEAR ELIGIBILITY WAITING PERIOD.—An indi- 1 vidual who meets the requirements under this section for 2 adjustment from lawful prospective immigrant status to 3 lawful permanent resident status shall be considered, as 4 of the date of such adjustment, to have completed the 5- 5 year period specified in sections 402 and 403 of the Per- 6 sonal Responsibility and Work Opportunity Reconciliation 7 Act of 1996 (8 U.S.C. 1612 and 1613). 8 SEC. 113. ADMINISTRATIVE REVIEW, REMOVAL PRO- 9 CEEDINGS, AND JUDICIAL REVIEW FOR 10 ALIENS WHO HAVE APPLIED FOR LAWFUL 11 PROSPECTIVE IMMIGRANT STATUS. 12 (a) ADMINISTRATIVE REVIEW.— 13 (1) EXCLUSIVE ADMINISTRATIVE REVIEW.—Ad- 14 ministrative review of a determination respecting an 15 application for status as a lawful prospective immi- 16 grant under section 111(b) or respecting an applica- 17 tion for adjustment of status under section 112 shall 18 be conducted solely as provided in this subsection. 19 (2) ADMINISTRATIVE APPELLATE REVIEW.— 20 (A) ESTABLISHMENT OF ADMINISTRATIVE 21 APPELLATE AUTHORITY.—The Secretary shall 22 establish or designate an appellate authority 23 within U.S. Citizenship and Immigration Serv- 24 ices to provide for a single level of administra- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00049 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 50 •S 1258 IS tive appellate review of a determination respect- 1 ing an application for status or revocation of 2 status as a lawful prospective immigrant under 3 section 111(b) or respecting an application for 4 adjustment of status under section 112. Any 5 such application is not renewable in any pro- 6 ceeding before the Attorney General. 7 (B) SINGLE APPEAL FOR EACH ADMINIS- 8 TRATIVE DECISION.— 9 (i) LAWFUL PROSPECTIVE IMMI- 10 GRANT.—An alien in the United States 11 whose application for status as a lawful 12 prospective immigrant under section 13 111(b) has been denied or whose status as 14 a lawful prospective immigrant has been 15 revoked, may file with the Secretary not 16 more than 1 appeal of each decision to 17 deny or revoke such status. 18 (ii) ADJUSTMENT OF STATUS.—An 19 alien in lawful prospective immigrant sta- 20 tus whose application under section 112 21 for adjustment of status to that of an alien 22 lawfully admitted for permanent residence 23 has been denied may file with the Sec- 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00050 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 51 •S 1258 IS retary not more than 1 appeal of each de- 1 cision to deny or revoke such status. 2 (iii) NOTICE OF APPEAL.—A notice of 3 appeal filed under this subsection shall be 4 filed not later than 60 calendar days after 5 the date of service of the decision of denial 6 or revocation. 7 (C) SECRETARIAL REVIEW.—Nothing in 8 this subsection may be construed to limit the 9 authority of the Secretary, in the Secretary’s 10 sole and unreviewable discretion, from certi- 11 fying appeals for review and final administra- 12 tive decision. 13 (D) DENIAL OF PETITIONS FOR DEPEND- 14 ENTS.—Appeals of a decision to deny a petition 15 filed by a lawful prospective immigrant pursu- 16 ant to regulations promulgated under section 17 111(c)(1)(A)(i) to classify a spouse or child of 18 such alien as a lawful prospective immigrant 19 shall be to the administrative appellate author- 20 ity described in subsection (A). 21 (E) STAY OF REMOVAL.—Aliens seeking 22 administrative review under this section shall 23 not be removed from the United States until a 24 final decision is rendered establishing ineligi- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00051 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 52 •S 1258 IS bility under this title, unless such removal is 1 based on criminal or national security grounds. 2 (3) RECORD FOR REVIEW.—Administrative ap- 3 pellate review referred to in paragraph (2) shall be 4 based solely upon the administrative record estab- 5 lished at the time of the determination on the appli- 6 cation and upon such additional newly discovered or 7 previously unavailable evidence. 8 (b) SELF INITIATED REMOVAL AND NOTICE PRE- 9 SERVING JUDICIAL REVIEW.— 10 (1) IN GENERAL.—Except as provided in sub- 11 paragraphs (2) and (3), any alien who receives a de- 12 nial of an administrative appeal filed under sub- 13 section (a) may request, not later than 60 calendar 14 days after the date of service of the administrative 15 appellate decision, that the Secretary place the alien 16 in removal proceedings. That request shall serve as 17 a notice preserving judicial review of the denial. The 18 Secretary shall place such alien in removal pro- 19 ceedings to which the alien would otherwise be sub- 20 ject, provided that no court shall have jurisdiction to 21 review the timing of the Secretary’s initiation of 22 such proceedings. If removal proceedings are not 23 commenced within 1 year of the timely filing of the 24 request specified in this section, the alien may peti- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00052 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 53 •S 1258 IS tion for review as if an order of removal was filed 1 within 1 year of the request. 2 (2) ALIENS IN REMOVAL PROCEEDINGS.—Any 3 alien who is in removal, deportation, or exclusion 4 proceedings that are not administratively final and 5 who receives a denial of an administrative appeal 6 filed under subsection (a), may file with the Sec- 7 retary, not later than 60 calendar days after the 8 date of service of the administrative appellate deci- 9 sion, a notice to preserve judicial review of that ap- 10 peal. 11 (3) ALIENS WITH A FINAL REMOVAL ORDER.— 12 Any alien who is subject to an administratively final, 13 unexecuted order of removal, deportation, or exclu- 14 sion and who receives a denial of an administrative 15 appeal filed under subsection (a), may file with the 16 Secretary, not later than 60 calendar days after the 17 date of service of the administrative appellate deci- 18 sion, a notice to preserve judicial review of that ap- 19 peal. Nothing in this subsection shall be construed 20 to authorize motions to reopen or reconsider the re- 21 moval order not otherwise permitted under statute 22 or regulation. 23 (4) EFFECT OF MOTIONS TO REOPEN OR RE- 24 CONSIDER.—The 60-day period described in para- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00053 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 54 •S 1258 IS graphs (1), (2), and (3) shall not be affected or ex- 1 tended by the filing of a motion to reopen or recon- 2 sider. 3 (5) EFFECT OF SERVICE BY MAIL.—If the ad- 4 ministrative appellate decision described in para- 5 graphs (1), (2), and (3) is served by mail, the date 6 of mailing shall be considered the date of service, 7 and 3 days shall be added to the prescribed period 8 that the alien has to file the request or notices under 9 such paragraphs. 10 (c) JUDICIAL REVIEW.—Section 242 (8 U.S.C. 11 11252) is amended— 12 (1) in subsection (b)(2), by striking ‘‘completed 13 the proceedings’’ and inserting ‘‘or the Secretary of 14 Homeland Security completed the removal pro- 15 ceedings’’; 16 (2) by amending subsection (d)(1) to read as 17 follows: 18 ‘‘(1) the alien has exhausted all administrative 19 remedies available to the alien as of right, except 20 that the alien need not file an administrative appeal 21 of an order of an immigration judge if the alien 22 seeks review solely of a denial or revocation of lawful 23 prospective immigrant status pursuant to subsection 24 (i)(3), and’’; and 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00054 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 55 •S 1258 IS (3) by adding at the end the following: 1 ‘‘(i) JUDICIAL REVIEW OF DETERMINATIONS RELAT- 2 ING TO LAWFUL PROSPECTIVE IMMIGRANT STATUS.— 3 ‘‘(1) DIRECT REVIEW.—A person whose appli- 4 cation for classification or adjustment of status 5 under this section is denied after administrative ap- 6 pellate review under title V of the Comprehensive 7 Immigration Reform Act of 2011 may seek review of 8 such denial, in accordance with chapter 7 of title 5, 9 United States Code, before the United States dis- 10 trict court for the district in which the person re- 11 sides. 12 ‘‘(2) REVIEW AFTER REMOVAL PRO- 13 CEEDINGS.—There shall be judicial review in the 14 Federal courts of appeal of the denial of an applica- 15 tion for adjustment of status under title V of the 16 Comprehensive Immigration Reform Act of 2011 in 17 conjunction with judicial review of an order of re- 18 moval, deportation, or exclusion, but only if the va- 19 lidity of the denial has not been upheld in a prior 20 judicial proceeding under paragraph (1). 21 ‘‘(3) STANDARD FOR JUDICIAL REVIEW.—Judi- 22 cial review of a denial of an application under title 23 V of the Comprehensive Immigration Reform Act of 24 2011 shall be based upon the administrative record 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00055 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 56 •S 1258 IS established at the time of the review, but the court 1 may remand the case to the Secretary for consider- 2 ation of additional evidence where the court finds 3 that the evidence is material and there were reason- 4 able grounds for failure to adduce the evidence be- 5 fore the Secretary. Notwithstanding any other provi- 6 sion of law, judicial review of all questions arising 7 from a denial of an application under title V of the 8 Comprehensive Immigration Reform Act of 2011 9 shall be governed by the standard of review set forth 10 in chapter 7 of title 5, United States Code. 11 ‘‘(4) REMEDIAL POWERS.—Notwithstanding 12 any other provision of law, the district courts of the 13 United States shall have jurisdiction over any cause 14 or claim arising from a pattern or practice of the 15 Secretary of Homeland Security in the operation or 16 implementation of title V of the Comprehensive Im- 17 migration Reform Act of 2011 that is arbitrary, ca- 18 pricious, or otherwise contrary to law, and may 19 order any appropriate relief. The district courts may 20 order any appropriate relief in accordance with the 21 preceding sentence without regard to exhaustion, 22 ripeness, or other standing requirements (other than 23 constitutionally mandated requirements), if the court 24 determines that resolution of such cause or claim 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00056 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 57 •S 1258 IS will serve judicial and administrative efficiency or 1 that a remedy would otherwise not be reasonably 2 available or practicable. 3 ‘‘(5) STAY OF REMOVAL.—Aliens seeking judi- 4 cial review under section 113 of the Comprehensive 5 Immigration Reform Act of 2011 shall not be re- 6 moved from the United States until a final decision 7 is rendered establishing ineligibility under this title. 8 ‘‘(6) NO REVIEW FOR LATE FILINGS.—An alien 9 may not file an application for lawful prospective im- 10 migrant status, under title V of the Comprehensive 11 Immigration Reform Act of 2011 beyond the period 12 for receipt of such applications established by section 13 111(e)(1) of such Act. The denial of any application 14 filed beyond the expiration of the period established 15 by that subsection shall not be subject to judicial re- 16 view or remedy, including under paragraph (5). 17 ‘‘(7) CHALLENGES ON VALIDITY OF THE LAW- 18 FUL PROSPECTIVE IMMIGRANT SYSTEM.— 19 ‘‘(A) IN GENERAL.—Any claim that title V 20 of the Comprehensive Immigration Reform Act 21 of 2011, or any regulation, guideline, directive, 22 or procedure issued to implement such title, vio- 23 lates the Constitution of the United States or is 24 otherwise in violation of law is available exclu- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00057 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 58 •S 1258 IS sively in an action instituted in any United 1 States District Court in accordance with the 2 procedures prescribed under this paragraph. No 3 claims challenging the validity of the system es- 4 tablished by title V of the Comprehensive Immi- 5 gration Reform Act of 2011 may be initiated 6 after the period for receipt of such applications 7 established by subsection 111(c)(1) of title VI 8 of the Comprehensive Immigration Reform Act 9 of 2011 by or on behalf of an alien who did not 10 timely file for lawful prospective immigrant sta- 11 tus. 12 ‘‘(B) DEADLINES FOR BRINGING AC- 13 TIONS.—Any action instituted under this para- 14 graph that asserts a claim that this title or any 15 regulation, guideline, directive, or procedure 16 issued by or under the authority of the Sec- 17 retary to implement this title violates the Con- 18 stitution or is otherwise unlawful, shall be 19 filed— 20 ‘‘(i) not later than 3 years after the 21 date of the publication or promulgation of 22 the challenged regulation, policy, or direc- 23 tive; or 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00058 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 59 •S 1258 IS ‘‘(ii) if the action challenges the valid- 1 ity of any provision of the Comprehensive 2 Immigration Reform Act of 2011, not later 3 than 3 years after the date of the enact- 4 ment of such Act. 5 ‘‘(C) Subject to subparagraph (D), nothing 6 in subparagraph (A) or (B) shall preclude an 7 applicant for lawful prospective immigrant sta- 8 tus under title VI of the Comprehensive Immi- 9 gration Reform Act of 2011 from asserting that 10 an action taken or decision made by the Sec- 11 retary with respect to his status under that title 12 was contrary to law in a proceeding under sec- 13 tion 113 of title V of the Comprehensive Immi- 14 gration Reform Act of 2011. 15 ‘‘(D) CLASS ACTIONS.—Any claim de- 16 scribed in subparagraph (A) that is brought as 17 a class action shall be brought in conformity 18 with the Class Action Fairness Act of 2005 19 (Public Law 109–2) and the Federal Rules of 20 Civil Procedure. After the expiration of the pe- 21 riod for receipt of such applications established 22 by section 111(c)(1) of title V of the Com- 23 prehensive Immigration Reform Act of 2011, an 24 alien who did not timely file for lawful prospec- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00059 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 60 •S 1258 IS tive immigrant status may not be a class mem- 1 ber of or otherwise benefit from a class action 2 described in subparagraph (A). 3 ‘‘(E) EXHAUSTION AND STAY OF PRO- 4 CEEDINGS.—No claim brought under this para- 5 graph shall require the plaintiff to exhaust ad- 6 ministrative remedies under section 113 of title 7 V of the Comprehensive Immigration Reform 8 Act of 2011, but nothing shall prevent the court 9 from staying proceedings under this paragraph 10 to permit the Secretary to evaluate an allega- 11 tion challenging a policy or practice or to take 12 corrective action. In issuing such a stay, the 13 court shall take into account any harm the stay 14 may cause to the claimant and to the govern- 15 ment. This subsection conveys no authority to 16 stay proceedings initiated under any other sec- 17 tion of the Act. 18 ‘‘(F) EXPEDITIOUS CONSIDERATION OF 19 CASES.—It shall be the duty of the District 20 Court, the Court of Appeals, and the United 21 States Supreme Court to advance on the docket 22 and to expedite to the greatest possible extent 23 the disposition of any case considered under 24 this section.’’. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00060 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 61 •S 1258 IS SEC. 114. CONFIDENTIALITY OF INFORMATION. 1 (a) IN GENERAL.—Except as otherwise provided in 2 this section and in section 117, no Federal agency or bu- 3 reau, or any officer or employee of such agency or bureau, 4 may, without the written consent of the applicant— 5 (1) use the information furnished by the appli- 6 cant pursuant to an application filed under section 7 111 or 112, for any purpose, other than to make a 8 determination on the application, including revoca- 9 tion of an application previously approved; 10 (2) make any publication through which the in- 11 formation furnished by any particular applicant can 12 be identified; or 13 (3) permit anyone other than the sworn offi- 14 cers, employees or contractors of such agency or bu- 15 reau, to examine individual applications that have 16 been filed. 17 (b) REQUIRED DISCLOSURES.— 18 (1) The Secretary shall provide the information 19 furnished pursuant to an application filed under sec- 20 tion 111 or 112, and any other information derived 21 from such furnished information to— 22 (A) a Federal, State, tribal, or local law 23 enforcement agency, intelligence agency, na- 24 tional security agency, component of the De- 25 partment of Homeland Security, court, or 26 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00061 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 62 •S 1258 IS grand jury in connection with a criminal inves- 1 tigation or prosecution, a background check 2 conducted pursuant to the Brady Handgun Vio- 3 lence Protection Act, or for homeland security 4 or national security purposes, in each instance 5 about an individual, when such information is 6 requested by such entity or consistent with an 7 information sharing agreement or mechanism; 8 or 9 (B) an official coroner for purposes of af- 10 firmatively identifying a deceased individual, 11 whether or not the death of such individual re- 12 sulted from a crime. 13 (2) Nothing in this section may be construed as 14 prohibiting any entity described in paragraph (1)(A) 15 from disseminating information provided to such en- 16 tity under this subsection by the Secretary for any 17 authorized purpose. 18 (c) INAPPLICABILITY AFTER DENIAL, REVOCATION, 19 OR ABANDONMENT.—The limitations under subsection 20 (a)— 21 (1) shall apply only until an application filed 22 under section 111 or 112 is denied and all opportu- 23 nities for administrative appeal of the denial have 24 been exhausted; 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00062 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 63 •S 1258 IS (2) shall not apply to the use of the information 1 furnished pursuant to such application in any re- 2 moval proceeding or other criminal or civil case or 3 action, including administrative action, relating to 4 an alien whose application has been granted that is 5 based upon any violation of law committed or discov- 6 ered after such grant; and 7 (3) shall not apply in a case in which— 8 (A) the Secretary has revoked the alien’s 9 status as a lawful prospective immigrant; or 10 (B) the alien’s lawful prospective immi- 11 grant status has expired. 12 (d) FRAUD IN APPLICATION PROCESS OR CRIMINAL 13 CONDUCT.—Notwithstanding any other provision of this 14 section, information concerning whether the applicant has 15 engaged in fraud in the application for lawful prospective 16 immigrant status or for adjustment of status from lawful 17 prospective immigrant status or at any time committed 18 a crime may be used or released for immigration enforce- 19 ment, law enforcement, or national security purposes. 20 (e) AUDITING AND EVALUATION OF INFORMATION.— 21 (1) The Secretary may audit and evaluate infor- 22 mation furnished as part of any application filed 23 under section 111 or 112 for purposes of identifying 24 fraud or fraud schemes, and may use any evidence 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00063 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 64 •S 1258 IS of fraud detected by means of audits, evaluations, or 1 other means for purposes of investigating, pros- 2 ecuting or referring for prosecution, denying, or ter- 3 minating immigration benefits. 4 (2) Nothing in this section may be construed as 5 limiting the authority of the relevant Offices of In- 6 spectors General from conducting reviews, audits, 7 oversight, and administrative, civil or criminal inves- 8 tigations. 9 (f) USE OF INFORMATION IN IMMIGRATION MATTERS 10 SUBSEQUENT TO ADJUSTMENT OF STATUS.—If the Sec- 11 retary has adjusted an alien’s status to that of an alien 12 lawfully admitted for permanent residence pursuant to 13 section 112, then at any time thereafter the Secretary may 14 use the information furnished by the alien in the applica- 15 tion for adjustment of status or in the applications for 16 status pursuant to sections 501 in any subsequent immi- 17 gration matter. 18 (g) OTHER AUTHORIZED DISCLOSURES.—The Fed- 19 eral Bureau of Investigation may disclose information de- 20 rived from biometric and biographic checks of the appli- 21 cant to assist in the apprehension of a person who is the 22 subject of a warrant of arrest, or to notify intelligence 23 agencies of the location of a known or suspected terrorist. 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00064 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 65 •S 1258 IS (h) CIVIL PENALTY.—Whoever willfully uses, pub- 1 lishes, or permits information to be disclosed in violation 2 of this section shall be subject to appropriate disciplinary 3 action and subject to a civil monetary penalty of not more 4 than $5,000. 5 (i) CONSTRUCTION.—Nothing in this section shall be 6 construed to limit the use or release for immigration en- 7 forcement purposes of information contained in files or 8 records of the Secretary or Attorney General pertaining 9 to an application filed under section 111 or 112, other 10 than information furnished by an applicant pursuant to 11 the application, or any other information derived from the 12 application, that is not available from any other source. 13 (j) INTERAGENCY FRAUD PREVENTION COORDINA- 14 TION.—The Secretary or the Secretary’s designee shall 15 convene an interagency committee to address issues relat- 16 ing to the identification, prevention, investigation, and 17 prosecution of fraud and related conduct in connection 18 with this program. 19 SEC. 115. ALIENS NOT SUBJECT TO DIRECT NUMERICAL 20 LIMITATIONS. 21 Section 201(b)(1) (8 U.S.C. 1151(b)(1)), is amended 22 by adding at the end the following: 23 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00065 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 66 •S 1258 IS ‘‘(N) Aliens whose status is adjusted from 1 that of a lawful prospective immigrant under 2 section 112 of CIR Act of 2010.’’. 3 SEC. 116. EMPLOYER PROTECTIONS. 4 (a) USE OF EMPLOYMENT RECORDS.—Copies of em- 5 ployment records or other evidence of employment pro- 6 vided by an alien or by an alien’s employer in support of 7 an alien’s application for lawful prospective immigrant 8 status under section 601 shall not be used in a prosecution 9 or investigation (civil or criminal) of that employer under 10 section 274A of the Immigration and Nationality Act or 11 the tax laws of the United States for the prior unlawful 12 employment of that alien, regardless of the adjudication 13 of such application or reconsideration by the Secretary of 14 such alien’s prima facie eligibility determination. This sec- 15 tion does not apply to employment records submitted by 16 aliens or employers that are deemed to be fraudulent. 17 (b) APPLICABILITY OF OTHER LAW.—Nothing in 18 this section may be used to shield an employer from liabil- 19 ity under section 274B of the Immigration and Nation- 20 ality Act (8 U.S.C. 1324b) or any other labor or employ- 21 ment law. 22 SEC. 117. ASSIGNMENT OF SOCIAL SECURITY NUMBER. 23 The Commissioner of the Social Security Administra- 24 tion, in coordination with the Secretary, shall implement 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00066 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 67 •S 1258 IS a system to allow for the assignment of a Social Security 1 number and issuance of a Social Security card after the 2 Secretary has granted an alien status as a lawful prospec- 3 tive immigrant. The Secretary shall provide to the Com- 4 missioner of Social Security information from the applica- 5 tion filed under section 111(a) and such other information 6 as the Commissioner of Social Security deems necessary 7 to assign a Social Security account number. The Commis- 8 sioner of Social Security may use such information to as- 9 sign such Social Security account numbers and to admin- 10 ister the programs for which the Commissioner of Social 11 Security has responsibility. The Commissioner of Social 12 Security may maintain, use, and disclose such information 13 only as permitted by the Privacy Act and other Federal 14 law. 15 PART II—IMPLEMENTATION 16 SEC. 121. RULEMAKING. 17 (a) IN GENERAL.—The Secretary and Attorney Gen- 18 eral separately shall issue interim final regulations not 19 later than 9 months after the date of the enactment of 20 this Act to implement this title and the amendments made 21 by this title. Such interim final regulations shall become 22 effective immediately upon publication in the Federal Reg- 23 ister. 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00067 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 68 •S 1258 IS (b) EXEMPTION FROM NATIONAL ENVIRONMENTAL 1 POLICY ACT.—Any decision by the Secretary concerning 2 any rulemaking action, plan, or program described in this 3 section shall not be considered to be a major Federal ac- 4 tion subject to review under the National Environmental 5 Policy Act of 1969 (42 U.S.C. 4321 et seq.). 6 SEC. 122. EXEMPTION FROM GOVERNMENT CONTRACTING 7 AND HIRING RULES. 8 (a) EXEMPTION FROM GOVERNMENT CONTRACTING 9 RULES.— 10 (1) PROCUREMENT COMPETITION EXEMP- 11 TION.—Any Federal agency’s determination to use a 12 procurement competition exemption under section 13 253(c) of title 41, United States Code, or to use the 14 authority granted in paragraph (2), for the purpose 15 of implementing this title is not subject to challenge 16 by protest to either the Government Accountability 17 Office, under sections 3551 through 3556 of title 18 31, United States Code, or to the Court of Federal 19 Claims, under section 1491 of title 28, United 20 States Code. An agency shall immediately advise 21 Congress of the exercise of the authority granted in 22 this subsection. 23 (2) WAIVER OF COMPETITION REQUIRE- 24 MENTS.—The competition requirement of section 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00068 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 69 •S 1258 IS 253(a) of title 41, United States Code may be 1 waived or modified by a Federal agency for any pro- 2 curement conducted to implement this title pursuant 3 to a determination and finding, approved by the sen- 4 ior procurement executive for the agency conducting 5 the procurement, that explains why the waiver or 6 modification is necessary if such a determination 7 and finding is furnished to the Committee on Home- 8 land Security and Governmental Affairs of the Sen- 9 ate and the Committee on Oversight and Govern- 10 ment Reform of the House of Representatives. 11 (b) EXEMPTION FROM GOVERNMENT HIRING 12 RULES.—Notwithstanding any other provision of law, the 13 Secretary shall have authority to make term, temporary, 14 limited, and part-time appointments for purposes of imple- 15 menting this title without regard to the number of such 16 employees, their ratio to permanent full-time employees, 17 and the duration of their employment. Nothing in chapter 18 71 of title 5, United States Code, shall affect the authority 19 of any Department management official to hire term, tem- 20 porary, limited, or part-time employees under this sub- 21 section. 22 SEC. 123. AUTHORITY TO ACQUIRE LEASEHOLDS. 23 Notwithstanding any other provision of law, the Sec- 24 retary may acquire a leasehold interest in real property, 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00069 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 70 •S 1258 IS and may provide in a lease entered into under this sub- 1 section for the construction or modification of any facility 2 on the leased property, if the Secretary determines that 3 the acquisition of such interest, and such construction or 4 modification is necessary in order to facilitate the imple- 5 mentation of this title. 6 SEC. 124. PRIVACY AND CIVIL LIBERTIES. 7 (a) PROTECTION OF PRIVACY.—Consistent with sec- 8 tion 114, the Secretary shall require appropriate adminis- 9 trative and physical safeguards to protect the security, 10 confidentiality, and integrity of personally identifiable in- 11 formation collected, maintained, and disseminated pursu- 12 ant to sections 111 and 112. 13 (b) REQUIREMENT FOR IMPACT ASSESSMENTS.— 14 Notwithstanding privacy requirements under section 222 15 of the Homeland Security Act and the E-Government Act 16 of 2002, the Secretary shall conduct a privacy impact as- 17 sessment and a civil liberties impact assessment of the le- 18 galization program established in sections 111 and 112 19 during the pendency of the interim final rule. 20 SEC. 125. STATUTORY CONSTRUCTION. 21 Except as specifically provided otherwise, nothing in 22 this title, or any amendment made by this title, shall be 23 construed to create any substantive or procedural right or 24 benefit that is legally enforceable by any party against the 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00070 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 71 •S 1258 IS United States or its agencies or officers or any other per- 1 son. 2 PART III—MISCELLANEOUS 3 SEC. 131. CORRECTION OF SOCIAL SECURITY RECORDS. 4 (a) IN GENERAL.—Section 208(e)(1) of the Social 5 Security Act (42 U.S.C. 408(e)(1)) is amended— 6 (1) in subparagraph (B)(ii), by striking ‘‘or’’ at 7 the end; 8 (2) by inserting after subparagraph (C) the fol- 9 lowing: 10 ‘‘(D) who is granted status as a lawful 11 prospective immigrant pursuant to section 111 12 of the CIR Act of 2010; or 13 ‘‘(E) whose status is adjusted to that of 14 lawful permanent resident under section 112 of 15 the CIR Act of 2010,’’; and 16 (3) by striking ‘‘1990.’’ and inserting ‘‘1990, or 17 in the case of an alien described in subparagraph 18 (D) or (E), if such conduct is alleged to have oc- 19 curred before the date on which the alien submitted 20 an application under section 111 of the CIR Act of 21 2010 for classification as a lawful prospective immi- 22 grant.’’. 23 (b) EFFECTIVE DATE.—The amendments made by 24 subsection (a) shall take effect on the first day of the tenth 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00071 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 72 •S 1258 IS month that begins after the date of the enactment of this 1 Act. 2 SEC. 132. FRAUD PREVENTION PROGRAM. 3 (a) IN GENERAL.—The head of each Department re- 4 sponsible for the administration of a program related to 5 this title or with authority to confer an immigration ben- 6 efit, relief, or status under Federal immigration law shall 7 develop an administrative program to prevent fraud within 8 or upon such program or authority. Subject to such modi- 9 fications as the head of the Department may direct, the 10 program shall provide for— 11 (1) fraud prevention training for the relevant 12 administrative adjudicators within the Department; 13 (2) the regular audit of pending and approved 14 applications for examples and patterns of fraud or 15 abuse; 16 (3) the receipt and evaluation of reports of 17 fraud or abuse; 18 (4) the identification of deficiencies in adminis- 19 trative practice or procedure that encourage fraud or 20 abuse; 21 (5) the remedy of any identified deficiencies; 22 and 23 (6) the referral of cases of identified or sus- 24 pected fraud or other misconduct for investigation. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00072 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 73 •S 1258 IS (b) IMPLEMENTATION.—Except as the head of the 1 Department shall otherwise provide, the implementation 2 of the administrative program referred to in subsection (a) 3 shall be assigned to and made part of the component or 4 agency within the Department that is responsible for con- 5 ferring the relevant immigration benefit, relief, or status 6 under Federal immigration law. 7 (c) COORDINATION.—The heads of relevant Depart- 8 ments shall coordinate their respective efforts under this 9 subsection. 10 (d) AUTHORIZATION OF APPROPRIATIONS.—There 11 are authorized to be appropriated such sums as may be 12 necessary for this section. 13 SEC. 133. DATA COLLECTION REQUIREMENTS. 14 (a) IN GENERAL.—The head of each department or 15 agency of the United States shall ensure that general de- 16 mographic data provided by applicants under this title 17 shall be made available in the aggregate in a searchable 18 public database. 19 (b) DEMOGRAPHIC DATA.—General demographic 20 data including gender, country of origin, age, education, 21 annual earnings, employment, State of residence, marital 22 status, date of arrival in the United States, method of 23 entry into the United States, number and ages of children, 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00073 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 74 •S 1258 IS and birthplace of children shall be made available to the 1 public. 2 (c) PROTECTION OF CONFIDENTIALITY.—Data col- 3 lected and gathered in the aggregate for purposes of re- 4 search shall not be recorded in such a way that it violates 5 confidentiality provisions under this title. 6 PART IV—DREAM ACT 7 SEC. 141. SHORT TITLE. 8 This part may be cited as the ‘‘Development, Relief, 9 and Education for Alien Minors Act of 2011’’ or the 10 ‘‘DREAM Act of 2011’’. 11 SEC. 142. DEFINITIONS. 12 In this part: 13 (1) IN GENERAL.—Except as otherwise specifi- 14 cally provided, terms used in this part shall have the 15 meanings given such term in the immigration laws 16 (as defined in section 101(a)(17) of the Immigration 17 and Nationality Act (8 U.S.C. 1101(a)(17))). 18 (2) INSTITUTION OF HIGHER EDUCATION.—The 19 term ‘‘institution of higher education’’ has the 20 meaning given such term in section 102 of the High- 21 er Education Act of 1965 (20 U.S.C. 1002), except 22 that the term does not include an institution of high- 23 er education outside the United States. 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00074 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 75 •S 1258 IS (3) SECRETARY.—Except as otherwise specifi- 1 cally provided, the term ‘‘Secretary’’ means the Sec- 2 retary of Homeland Security. 3 (4) UNIFORMED SERVICES.—The term ‘‘Uni- 4 formed Services’’ has the meaning given the term 5 ‘‘uniformed services’’ in section 101(a) of title 10, 6 United States Code. 7 SEC. 143. CONDITIONAL PERMANENT RESIDENT STATUS 8 FOR CERTAIN LONG-TERM RESIDENTS WHO 9 ENTERED THE UNITED STATES AS CHILDREN. 10 (a) CONDITIONAL BASIS FOR STATUS.—Notwith- 11 standing any other provision of law, an alien shall be con- 12 sidered, at the time of obtaining the status of an alien 13 lawfully admitted for permanent residence under this sec- 14 tion, to have obtained such status on a conditional basis 15 subject to the provisions of this part. 16 (b) REQUIREMENTS.— 17 (1) IN GENERAL.—Notwithstanding any other 18 provision of law, the Secretary may cancel removal 19 of, and adjust to the status of an alien lawfully ad- 20 mitted for permanent residence on a conditional 21 basis, an alien who is inadmissible or deportable 22 from the United States or is in temporary protected 23 status under section 244 of the Immigration and 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00075 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 76 •S 1258 IS Nationality Act (8 U.S.C. 1254a), if the alien dem- 1 onstrates by a preponderance of the evidence that— 2 (A) the alien has been continuously phys- 3 ically present in the United States since the 4 date that is 5 years before the date of the en- 5 actment of this Act; 6 (B) the alien was 15 years of age or 7 younger on the date the alien initially entered 8 the United States; 9 (C) the alien has been a person of good 10 moral character since the date the alien initially 11 entered the United States; 12 (D) subject to paragraph (2), the alien— 13 (i) is not inadmissible under para- 14 graph (2), (3), (6)(E), (6)(G), (8), 15 (10)(A), (10)(C), or (10)(D) of section 16 212(a) of the Immigration and Nationality 17 Act (8 U.S.C. 1182(a)); 18 (ii) has not ordered, incited, assisted, 19 or otherwise participated in the persecution 20 of any person on account of race, religion, 21 nationality, membership in a particular so- 22 cial group, or political opinion; and 23 (iii) has not been convicted of— 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00076 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 77 •S 1258 IS (I) any offense under Federal or 1 State law punishable by a maximum 2 term of imprisonment of more than 1 3 year; or 4 (II) 3 or more offenses under 5 Federal or State law, for which the 6 alien was convicted on different dates 7 for each of the 3 offenses and impris- 8 oned for an aggregate of 90 days or 9 more; 10 (E) the alien— 11 (i) has been admitted to an institution 12 of higher education in the United States; 13 or 14 (ii) has earned a high school diploma 15 or obtained a general education develop- 16 ment certificate in the United States; and 17 (F) the alien was 35 years of age or 18 younger on the date of the enactment of this 19 Act. 20 (2) WAIVER.—With respect to any benefit 21 under this part, the Secretary may waive the 22 grounds of inadmissibility under paragraph (6)(E), 23 (6)(G), or (10)(D) of section 212(a) of the Immigra- 24 tion and Nationality Act (8 U.S.C. 1182(a)) for hu- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00077 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 78 •S 1258 IS manitarian purposes or family unity or when it is 1 otherwise in the public interest. 2 (3) SUBMISSION OF BIOMETRIC AND BIO- 3 GRAPHIC DATA.—The Secretary may not grant per- 4 manent resident status on a conditional basis to an 5 alien under this section unless the alien submits bio- 6 metric and biographic data, in accordance with pro- 7 cedures established by the Secretary. The Secretary 8 shall provide an alternative procedure for applicants 9 who are unable to provide such biometric or bio- 10 graphic data because of a physical impairment. 11 (4) BACKGROUND CHECKS.— 12 (A) REQUIREMENT FOR BACKGROUND 13 CHECKS.—The Secretary shall utilize biometric, 14 biographic, and other data that the Secretary 15 determines is appropriate— 16 (i) to conduct security and law en- 17 forcement background checks of an alien 18 seeking permanent resident status on a 19 conditional basis under this section; and 20 (ii) to determine whether there is any 21 criminal, national security, or other factor 22 that would render the alien ineligible for 23 such status. 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00078 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 79 •S 1258 IS (B) COMPLETION OF BACKGROUND 1 CHECKS.—The security and law enforcement 2 background checks required by subparagraph 3 (A) for an alien shall be completed, to the satis- 4 faction of the Secretary, prior to the date the 5 Secretary grants permanent resident status on 6 a conditional basis to the alien. 7 (5) MEDICAL EXAMINATION.—An alien applying 8 for permanent resident status on a conditional basis 9 under this section shall undergo a medical examina- 10 tion. The Secretary, with the concurrence of the Sec- 11 retary of Health and Human Services, shall pre- 12 scribe policies and procedures for the nature and 13 timing of such examination. 14 (6) MILITARY SELECTIVE SERVICE.—An alien 15 applying for permanent resident status on a condi- 16 tional basis under this section shall establish that 17 the alien has registered under the Military Selective 18 Service Act (50 U.S.C. App. 451 et seq.), if the 19 alien is subject to such registration under that Act. 20 (c) DETERMINATION OF CONTINUOUS PRESENCE.— 21 (1) TERMINATION OF CONTINUOUS PERIOD.— 22 Any period of continuous physical presence in the 23 United States of an alien who applies for permanent 24 resident status on a conditional basis under this sec- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00079 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 80 •S 1258 IS tion shall not terminate when the alien is served a 1 notice to appear under section 239(a) of the Immi- 2 gration and Nationality Act (8 U.S.C. 1229(a)). 3 (2) TREATMENT OF CERTAIN BREAKS IN PRES- 4 ENCE.— 5 (A) IN GENERAL.—An alien shall be con- 6 sidered to have failed to maintain continuous 7 physical presence in the United States under 8 subsection (b)(1)(A) if the alien has departed 9 from the United States for any period in excess 10 of 90 days or for any periods in the aggregate 11 exceeding 180 days. 12 (B) EXTENSIONS FOR EXTENUATING CIR- 13 CUMSTANCES.—The Secretary may extend the 14 time periods described in subparagraph (A) for 15 an alien if the alien demonstrates that the fail- 16 ure to timely return to the United States was 17 due to extenuating circumstances beyond the 18 alien’s control. 19 (d) APPLICATION.— 20 (1) IN GENERAL.—An alien seeking lawful per- 21 manent resident status on a conditional basis shall 22 file an application for such status in such manner as 23 the Secretary may require. 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00080 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 81 •S 1258 IS (2) DEADLINE FOR SUBMISSION OF APPLICA- 1 TION.—An alien shall submit an application for re- 2 lief under this section not later than the date that 3 is 1 year after the later of— 4 (A) the date the alien earned a high school 5 diploma or obtained a general education devel- 6 opment certificate in the United States; or 7 (B) the effective date of the final regula- 8 tions issued pursuant to section 536. 9 (e) LIMITATION ON REMOVAL OF CERTAIN 10 ALIENS.— 11 (1) IN GENERAL.—The Secretary or the Attor- 12 ney General may not remove an alien who— 13 (A) has a pending application for relief 14 under this section; and 15 (B) establishes prima facie eligibility for 16 relief under this section. 17 (2) CERTAIN ALIENS ENROLLED IN PRIMARY 18 OR SECONDARY SCHOOL.— 19 (A) STAY OF REMOVAL.—The Attorney 20 General shall stay the removal proceedings of 21 an alien who— 22 (i) meets all the requirements of sub- 23 paragraphs (A), (B), (C), (D), and (F) of 24 subsection (b)(1); 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00081 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 82 •S 1258 IS (ii) is at least 5 years of age; and 1 (iii) is enrolled full-time in a primary 2 or secondary school. 3 (B) ALIENS NOT IN REMOVAL PRO- 4 CEEDINGS.—If an alien is not in removal pro- 5 ceedings, the Secretary shall not commence 6 such proceedings with respect to the alien if the 7 alien is described in clauses (i) through (iii) of 8 subparagraph (A). 9 (C) EMPLOYMENT.—An alien whose re- 10 moval is stayed pursuant to subparagraph (A) 11 or who may not be placed in removal pro- 12 ceedings pursuant to subparagraph (B) shall, 13 upon application to the Secretary, be granted 14 an employment authorization document. 15 (D) LIFT OF STAY.—The Secretary or At- 16 torney General may lift the stay granted to an 17 alien under subparagraph (A) if the alien— 18 (i) is no longer enrolled in a primary 19 or secondary school; or 20 (ii) ceases to meet the requirements of 21 such paragraph. 22 (f) EXEMPTION FROM NUMERICAL LIMITATIONS.— 23 Nothing in this section or in any other law may be con- 24 strued to apply a numerical limitation on the number of 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00082 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 83 •S 1258 IS aliens who may be eligible for adjustment of status under 1 this part. 2 SEC. 144. TERMS OF CONDITIONAL PERMANENT RESIDENT 3 STATUS. 4 (a) PERIOD OF STATUS.—Permanent resident status 5 on a conditional basis granted under this part is— 6 (1) valid for a period of 6 years, unless such pe- 7 riod is extended by the Secretary; and 8 (2) subject to termination under subsection (c). 9 (b) NOTICE OF REQUIREMENTS.— 10 (1) AT TIME OF OBTAINING STATUS.—At the 11 time an alien obtains permanent resident status on 12 a conditional basis under this part, the Secretary 13 shall provide for notice to the alien regarding the 14 provisions of this part and the requirements to have 15 the conditional basis of such status removed. 16 (2) EFFECT OF FAILURE TO PROVIDE NO- 17 TICE.—The failure of the Secretary to provide a no- 18 tice under this subsection— 19 (A) shall not affect the enforcement of the 20 provisions of this part with respect to the alien; 21 and 22 (B) shall not give rise to any private right 23 of action by the alien. 24 (c) TERMINATION OF STATUS.— 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00083 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 84 •S 1258 IS (1) IN GENERAL.—The Secretary shall termi- 1 nate the conditional permanent resident status of an 2 alien, if the Secretary determines that the alien— 3 (A) ceases to meet the requirements of 4 subparagraph (C) or (D) of section 533(b)(1); 5 or 6 (B) was discharged from the Uniformed 7 Services and did not receive an honorable dis- 8 charge. 9 (d) RETURN TO PREVIOUS IMMIGRATION STATUS.— 10 (1) IN GENERAL.—Except as provided in para- 11 graph (2), an alien whose permanent resident status 12 on a conditional basis expires under subsection 13 (a)(1) or is terminated under subsection (c) or 14 whose application for such status is denied shall re- 15 turn to the immigration status the alien had imme- 16 diately prior to receiving permanent resident status 17 on a conditional basis or applying for such status, 18 as appropriate. 19 (2) SPECIAL RULE FOR TEMPORARY PRO- 20 TECTED STATUS.—In the case of an alien whose per- 21 manent resident status on a conditional basis expires 22 under subsection (a)(1) or is terminated under sub- 23 section (c) or whose application for such status is 24 denied and who had temporary protected status im- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00084 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 85 •S 1258 IS mediately prior to receiving or applying for such sta- 1 tus, as appropriate, the alien may not return to tem- 2 porary protected status if— 3 (A) the relevant designation under section 4 244(b) of the Immigration and Nationality Act 5 (8 U.S.C. 1254a(b)) has been terminated; or 6 (B) the Secretary determines that the rea- 7 son for terminating the permanent resident sta- 8 tus on a conditional basis renders the alien in- 9 eligible for temporary protected status. 10 (e) INFORMATION SYSTEMS.—The Secretary shall 11 use the information systems of the Department of Home- 12 land Security to maintain current information on the iden- 13 tity, address, and immigration status of aliens granted 14 permanent resident status on a conditional basis under 15 this part. 16 SEC. 145. REMOVAL OF CONDITIONAL BASIS OF PERMA- 17 NENT RESIDENT STATUS. 18 (a) ELIGIBILITY FOR REMOVAL OF CONDITIONAL 19 BASIS.— 20 (1) IN GENERAL.—Subject to paragraph (2), 21 the Secretary may remove the conditional basis of an 22 alien’s permanent resident status granted under this 23 part if the alien demonstrates by a preponderance of 24 the evidence that— 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00085 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 86 •S 1258 IS (A) the alien has been a person of good 1 moral character during the entire period of con- 2 ditional permanent resident status; 3 (B) the alien is described in section 4 533(b)(1)(D); 5 (C) the alien has not abandoned the alien’s 6 residence in the United States; 7 (D) the alien— 8 (i) has acquired a degree from an in- 9 stitution of higher education in the United 10 States or has completed at least 2 years, in 11 good standing, in a program for a bach- 12 elor’s degree or higher degree in the 13 United States; or 14 (ii) has served in the Uniformed Serv- 15 ices for at least 2 years and, if discharged, 16 received an honorable discharge; and 17 (E) the alien has provided a list of each 18 secondary school (as that term is defined in sec- 19 tion 9101 of the Elementary and Secondary 20 Education Act of 1965 (20 U.S.C. 7801)) that 21 the alien attended in the United States. 22 (2) HARDSHIP EXCEPTION.— 23 (A) IN GENERAL.—The Secretary may, in 24 the Secretary’s discretion, remove the condi- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00086 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 87 •S 1258 IS tional basis of an alien’s permanent resident 1 status if the alien— 2 (i) satisfies the requirements of sub- 3 paragraphs (A), (B), (C), and (E) of para- 4 graph (1); 5 (ii) demonstrates compelling cir- 6 cumstances for the inability to satisfy the 7 requirements of subparagraph (D) of such 8 paragraph; and 9 (iii) demonstrates that the alien’s re- 10 moval from the United States would result 11 in extreme hardship to the alien or the 12 alien’s spouse, parent, or child who is a cit- 13 izen or a lawful permanent resident of the 14 United States. 15 (B) EXTENSION.—Upon a showing of good 16 cause, the Secretary may extend the period of 17 permanent resident status on a conditional 18 basis for an alien so that the alien may com- 19 plete the requirements of subparagraph (D) of 20 paragraph (1). 21 (3) TREATMENT OF ABANDONMENT OR RESI- 22 DENCE.—For purposes of paragraph (1)(C), an 23 alien— 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00087 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 88 •S 1258 IS (A) shall be presumed to have abandoned 1 the alien’s residence in the United States if the 2 alien is absent from the United States for more 3 than 365 days, in the aggregate, during the 4 alien’s period of conditional permanent resident 5 status, unless the alien demonstrates to the sat- 6 isfaction of the Secretary that the alien has not 7 abandoned such residence; and 8 (B) who is absent from the United States 9 due to active service in the Uniformed Services 10 has not abandoned the alien’s residence in the 11 United States during the period of such service. 12 (4) CITIZENSHIP REQUIREMENT.— 13 (A) IN GENERAL.—Except as provided in 14 subparagraph (B), the conditional basis of an 15 alien’s permanent resident status may not be 16 removed unless the alien demonstrates that the 17 alien satisfies the requirements of section 18 312(a) of the Immigration and Nationality Act 19 (8 U.S.C. 1423(a)). 20 (B) EXCEPTION.—Subparagraph (A) shall 21 not apply to an alien who is unable because of 22 a physical or developmental disability or mental 23 impairment to meet the requirements of such 24 subparagraph. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00088 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 89 •S 1258 IS (5) SUBMISSION OF BIOMETRIC AND BIO- 1 GRAPHIC DATA.—The Secretary may not remove the 2 conditional basis of an alien’s permanent resident 3 status unless the alien submits biometric and bio- 4 graphic data, in accordance with procedures estab- 5 lished by the Secretary. The Secretary shall provide 6 an alternative procedure for applicants who are un- 7 able to provide such biometric data because of a 8 physical impairment. 9 (6) BACKGROUND CHECKS.— 10 (A) REQUIREMENT FOR BACKGROUND 11 CHECKS.—The Secretary shall utilize biometric, 12 biographic, and other data that the Secretary 13 determines appropriate— 14 (i) to conduct security and law en- 15 forcement background checks of an alien 16 applying for removal of the conditional 17 basis of the alien’s permanent resident sta- 18 tus; and 19 (ii) to determine whether there is any 20 criminal, national security, or other factor 21 that would render the alien ineligible for 22 removal of such conditional basis. 23 (B) COMPLETION OF BACKGROUND 24 CHECKS.—The security and law enforcement 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00089 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 90 •S 1258 IS background checks required by subparagraph 1 (A) for an alien shall be completed, to the satis- 2 faction of the Secretary, prior to the date the 3 Secretary removes the conditional basis of the 4 alien’s permanent resident status. 5 (b) APPLICATION TO REMOVE CONDITIONAL 6 BASIS.— 7 (1) IN GENERAL.—An alien seeking to have the 8 conditional basis of the alien’s lawful permanent 9 resident status removed shall file an application for 10 such removal in such manner as the Secretary may 11 require. 12 (2) DEADLINE FOR SUBMISSION OF APPLICA- 13 TION.— 14 (A) IN GENERAL.—An alien shall file an 15 application under this subsection during the pe- 16 riod beginning 6 months prior to and ending on 17 the date that is later of— 18 (i) 6 years after the date the alien 19 was initially granted conditional permanent 20 resident status; or 21 (ii) any other expiration date of the 22 alien’s conditional permanent resident sta- 23 tus, as extended by the Secretary in ac- 24 cordance with this part. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00090 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 91 •S 1258 IS (B) STATUS DURING PENDENCY.—An 1 alien shall be deemed to have permanent resi- 2 dent status on a conditional basis during the 3 period that the alien’s application submitted 4 under this subsection is pending. 5 (3) ADJUDICATION OF APPLICATION.— 6 (A) IN GENERAL.—The Secretary shall 7 make a determination on each application filed 8 by an alien under this subsection as to whether 9 the alien meets the requirements for removal of 10 the conditional basis of the alien’s permanent 11 resident status. 12 (B) ADJUSTMENT OF STATUS IF FAVOR- 13 ABLE DETERMINATION.—If the Secretary deter- 14 mines that the alien meets such requirements, 15 the Secretary shall notify the alien of such de- 16 termination and remove the conditional basis of 17 the alien’s permanent resident status, effective 18 as of the date of such determination. 19 (C) TERMINATION IF ADVERSE DETER- 20 MINATION.—If the Secretary determines that 21 the alien does not meet such requirements, the 22 Secretary shall notify the alien of such deter- 23 mination and, if the period of the alien’s condi- 24 tional permanent resident status under section 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00091 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 92 •S 1258 IS 534(a)(1) has ended, terminate the conditional 1 permanent resident status granted the alien 2 under this part as of the date of such deter- 3 mination. 4 (c) TREATMENT FOR PURPOSES OF NATURALIZA- 5 TION.— 6 (1) IN GENERAL.—For purposes of title III of 7 the Immigration and Nationality Act (8 U.S.C. 1401 8 et seq.), an alien granted permanent resident status 9 on a conditional basis under this part shall be con- 10 sidered to have been admitted as an alien lawfully 11 admitted for permanent residence and to be in the 12 United States as an alien lawfully admitted to the 13 United States for permanent residence. 14 (2) LIMITATION ON APPLICATION FOR NATU- 15 RALIZATION.—An alien may not apply for natu- 16 ralization during the period that the alien is in per- 17 manent resident status on a conditional basis under 18 this part. 19 SEC. 146. REGULATIONS. 20 (a) INITIAL PUBLICATION.—Not later than 180 days 21 after the date of the enactment of this Act, the Secretary 22 shall publish regulations implementing this part. Such reg- 23 ulations shall allow eligible individuals to apply affirma- 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00092 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 93 •S 1258 IS tively for the relief available under section 533 without 1 being placed in removal proceedings. 2 (b) INTERIM REGULATIONS.—Notwithstanding sec- 3 tion 553 of title 5, United States Code, the regulations 4 required by subsection (a) shall be effective, on an interim 5 basis, immediately upon publication but may be subject 6 to change and revision after public notice and opportunity 7 for a period of public comment. 8 (c) FINAL REGULATIONS.—Within a reasonable time 9 after publication of the interim regulations in accordance 10 with subsection (b), the Secretary shall publish final regu- 11 lations implementing this part. 12 (d) PAPERWORK REDUCTION ACT.—The require- 13 ments of chapter 35 of title 44, United States Code (com- 14 monly known as the ‘‘Paperwork Reduction Act’’) shall 15 not apply to any action to implement this part. 16 SEC. 147. PENALTIES FOR FALSE STATEMENTS. 17 Whoever files an application for any relief or benefit 18 under this part and willfully and knowingly falsifies, mis- 19 represents, or conceals a material fact or makes any false 20 or fraudulent statement or representation, or makes or 21 uses any false writing or document knowing the same to 22 contain any false or fraudulent statement or entry, shall 23 be fined in accordance with title 18, United States Code, 24 imprisoned not more than 5 years, or both. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00093 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 94 •S 1258 IS SEC. 148. CONFIDENTIALITY OF INFORMATION. 1 (a) PROHIBITION.—Except as provided in subsection 2 (b), no officer or employee of the United States may— 3 (1) use the information furnished by an indi- 4 vidual pursuant to an application filed under this 5 part in removal proceedings against any person iden- 6 tified in the application; 7 (2) make any publication whereby the informa- 8 tion furnished by any particular individual pursuant 9 to an application under this part can be identified; 10 or 11 (3) permit anyone other than an officer, em- 12 ployee or authorized contractor of the United States 13 Government or, in the case of an application filed 14 under this part with a designated entity, permit that 15 designated entity, to examine such application filed 16 under such sections. 17 (b) REQUIRED DISCLOSURE.—The Attorney General 18 or the Secretary shall provide the information furnished 19 under this part, and any other information derived from 20 such furnished information, to— 21 (1) a Federal, State, tribal, or local law enforce- 22 ment agency, intelligence agency, national security 23 agency, component of the Department of Homeland 24 Security, court, or grand jury in connection with a 25 criminal investigation or prosecution, a background 26 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00094 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 95 •S 1258 IS check conducted pursuant to section 103 of the 1 Brady Handgun Violence Protection Act (Public 2 Law 103–159; 18 U.S.C. 922 note), or national se- 3 curity purposes, if such information is requested by 4 such entity or consistent with an information shar- 5 ing agreement or mechanism; or 6 (2) an official coroner for purposes of affirma- 7 tively identifying a deceased individual (whether or 8 not such individual is deceased as a result of a 9 crime). 10 (c) FRAUD IN APPLICATION PROCESS OR CRIMINAL 11 CONDUCT.—Notwithstanding any other provision of this 12 section, information concerning whether an alien seeking 13 relief under this part has engaged in fraud in an applica- 14 tion for such relief or at any time committed a crime, may 15 be used or released for immigration enforcement, law en- 16 forcement, or national security purposes. 17 (d) PENALTY.—Whoever knowingly uses, publishes, 18 or permits information to be examined in violation of this 19 section shall be fined not more than $10,000. 20 SEC. 149. HIGHER EDUCATION ASSISTANCE. 21 (a) IN GENERAL.—Notwithstanding any provision of 22 the Higher Education Act of 1965 (20 U.S.C. 1001 et 23 seq.), with respect to assistance provided under title IV 24 of the Higher Education Act of 1965 (20 U.S.C. 1070 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00095 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 96 •S 1258 IS et seq.), an alien who has permanent resident status on 1 a conditional basis under this part shall be eligible only 2 for the following assistance under such title: 3 (1) Student loans under parts D and E of such 4 title IV (20 U.S.C. 1087a et seq. and 1087aa et 5 seq.), subject to the requirements of such parts. 6 (2) Federal work-study programs under part C 7 of such title IV (42 U.S.C. 2751 et seq.), subject to 8 the requirements of such part. 9 (3) Services under such title IV (20 U.S.C. 10 1070 et seq.), subject to the requirements for such 11 services. 12 (b) RESTORATION OF STATE OPTION TO DETER- 13 MINE RESIDENCY FOR PURPOSES OF HIGHER EDUCATION 14 BENEFITS.— 15 (1) IN GENERAL.—section 115 of the Illegal 16 Immigration Reform and Immigrant Responsibility 17 Act of 1996 (8 U.S.C. 1623) is repealed. 18 (2) EFFECTIVE DATE.—The repeal under para- 19 graph (1) shall take effect as if included in the en- 20 actment of the Illegal Immigration Reform and Im- 21 migrant Responsibility Act of 1996 (division C of 22 Public Law 104–208; 110 Stat. 3009–546). 23 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00096 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 97 •S 1258 IS PART V—AGRICULTURAL JOB OPPORTUNITIES, 1 BENEFITS, AND SECURITY 2 SEC. 150. SHORT TITLES. 3 This part may be cited as the ‘‘Agricultural Job Op- 4 portunities, Benefits, and Security Act of 2011’’ or the 5 ‘‘AgJOBS Act of 2011’’. 6 CHAPTER 1—BLUE CARD STATUS 7 SEC. 151. REQUIREMENTS FOR BLUE CARD STATUS. 8 (a) REQUIREMENT TO GRANT BLUE CARD STA- 9 TUS.—Notwithstanding any other provision of law, the 10 Secretary shall, pursuant to the requirements of this sec- 11 tion, grant blue card status to an alien who qualifies under 12 this section if the Secretary determines that the alien— 13 (1) has performed agricultural employment in 14 the United States for at least 863 hours or 150 15 work days during the 24-month period ending on 16 December 31, 2010; 17 (2) applied for such status during the 18-month 18 application period beginning on the first day of the 19 seventh month that begins after the date of the en- 20 actment of this Act; 21 (3) is otherwise admissible to the United States 22 under section 212 of the Immigration and Nation- 23 ality Act (8 U.S.C. 1182), except as otherwise pro- 24 vided under section 154(a)(2) of this Act; and 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00097 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 98 •S 1258 IS (4) has not been convicted of any felony or a 1 misdemeanor, an element of which involves bodily in- 2 jury, threat of serious bodily injury, or harm to 3 property in excess of $500. 4 (b) AUTHORIZED TRAVEL.—An alien who is granted 5 blue card status is authorized to travel outside the United 6 States (including commuting to the United States from 7 a residence in a foreign country) in the same manner as 8 an alien lawfully admitted for permanent residence. 9 (c) AUTHORIZED EMPLOYMENT.—The Secretary 10 shall provide an alien who is granted blue card status an 11 employment authorized endorsement or other appropriate 12 work permit, in the same manner as an alien lawfully ad- 13 mitted for permanent residence. 14 (d) TERMINATION OF BLUE CARD STATUS.— 15 (1) DEPORTABLE ALIENS.—The Secretary shall 16 terminate blue card status granted to an alien if the 17 Secretary determines that the alien is deportable. 18 (2) OTHER GROUNDS FOR TERMINATION.—The 19 Secretary shall terminate blue card status granted to 20 an alien if— 21 (A) the Secretary finds, by a preponder- 22 ance of the evidence, that the adjustment to 23 blue card status was the result of fraud or will- 24 ful misrepresentation, as described in section 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00098 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 99 •S 1258 IS 212(a)(6)(C)(i) of the Immigration and Nation- 1 ality Act (8 U.S.C. 1182(a)(6)(C)(i)); or 2 (B) the alien— 3 (i) commits an act that makes the 4 alien inadmissible to the United States 5 under section 212 of the Immigration and 6 Nationality Act (8 U.S.C. 1182), except as 7 provided under section 154(a)(2) of this 8 Act; 9 (ii) is convicted of a felony or 3 or 10 more misdemeanors committed in the 11 United States; 12 (iii) is convicted of an offense, an ele- 13 ment of which involves bodily injury, threat 14 of serious bodily injury, or harm to prop- 15 erty in excess of $500; or 16 (iv) fails to perform the agricultural 17 employment required under paragraph 18 (1)(A) of section 153(a) unless the alien 19 was unable to work in agricultural employ- 20 ment due to the extraordinary cir- 21 cumstances described in paragraph (3) of 22 such section. 23 (e) RECORD OF EMPLOYMENT.— 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00099 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 100 •S 1258 IS (1) IN GENERAL.—Each employer of an alien 1 granted blue card status shall annually— 2 (A) provide a written record of employ- 3 ment to the alien; and 4 (B) provide a copy of such record to the 5 Secretary. 6 (2) CIVIL PENALTIES.— 7 (A) IN GENERAL.—If the Secretary deter- 8 mines, after notice and opportunity for a hear- 9 ing, that an employer of an alien granted blue 10 card status has failed to provide the record of 11 employment required under paragraph (1) or 12 has provided a false statement of material fact 13 in such a record, the employer shall be subject 14 to a civil penalty in an amount not to exceed 15 $1,000 per violation. 16 (B) LIMITATION.—The penalty applicable 17 under subparagraph (A) for failure to provide 18 records shall not apply unless the alien has pro- 19 vided the employer with evidence of employment 20 authorization granted under this section. 21 (3) SUNSET.—The obligation under paragraph 22 (1) shall terminate on the date that is 6 years after 23 the date of the enactment of this Act. 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00100 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 101 •S 1258 IS (f) REQUIRED FEATURES OF IDENTITY CARD.—The 1 Secretary shall provide each alien granted blue card sta- 2 tus, and the spouse and any child of each such alien resid- 3 ing in the United States, with a card that contains— 4 (1) an encrypted, machine-readable, electronic 5 identification strip that is unique to the alien to 6 whom the card is issued; 7 (2) biometric identifiers, including fingerprints 8 and a digital photograph; and 9 (3) physical security features designed to pre- 10 vent tampering, counterfeiting, or duplication of the 11 card for fraudulent purposes. 12 (g) FINE.—An alien granted blue card status shall 13 pay a $100 fine to the Secretary. 14 (h) MAXIMUM NUMBER.—The Secretary may not 15 issue more than 1,350,000 blue cards during the 5-year 16 period beginning on the date of the enactment of this Act. 17 (i) TREATMENT OF ALIENS GRANTED BLUE CARD 18 STATUS.— 19 (1) IN GENERAL.—Except as otherwise pro- 20 vided under this section, an alien granted blue card 21 status (including a spouse or child of the alien 22 granted derivative status) shall be considered to be 23 an alien lawfully admitted for permanent residence 24 for purposes of any law other than any provision of 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00101 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 102 •S 1258 IS the Immigration and Nationality Act (8 U.S.C. 1101 1 et seq.). 2 (2) DELAYED ELIGIBILITY FOR CERTAIN FED- 3 ERAL PUBLIC BENEFITS.—Except as otherwise pro- 4 vided in law, an alien granted blue card status (in- 5 cluding a spouse or child of the alien granted deriva- 6 tive status) shall not be eligible, by reason of such 7 status, for any form of assistance or benefit de- 8 scribed in section 403(a) of the Personal Responsi- 9 bility and Work Opportunity Reconciliation Act of 10 1996 (8 U.S.C. 1613(a)) until 5 years after the date 11 on which the alien is granted an adjustment of sta- 12 tus under section 153. 13 SEC. 152. APPLICATION FOR BLUE CARD STATUS. 14 (a) SUBMISSION.—The Secretary shall provide that— 15 (1) applications for blue card status may be 16 submitted— 17 (A) to the Secretary if the applicant is rep- 18 resented by an attorney or a nonprofit religious, 19 charitable, social service, or similar organization 20 recognized by the Board of Immigration Ap- 21 peals under section 292.2 of title 8, Code of 22 Federal Regulations; or 23 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00102 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 103 •S 1258 IS (B) to a qualified designated entity if the 1 applicant consents to the forwarding of the ap- 2 plication to the Secretary; and 3 (2) applications for adjustment of status under 4 section 153 shall be filed directly with the Secretary. 5 (b) QUALIFIED DESIGNATED ENTITY DEFINED.—In 6 this section, the term ‘‘qualified designated entity’’ 7 means— 8 (1) a qualified farm labor organization or an 9 association of employers designated by the Sec- 10 retary; or 11 (2) any such other person designated by the 12 Secretary if that Secretary determines such person 13 is qualified and has substantial experience, dem- 14 onstrated competence, and has a history of long- 15 term involvement in the preparation and submission 16 of applications for adjustment of status under sec- 17 tion 209, 210, or 245 of the Immigration and Na- 18 tionality Act (8 U.S.C. 1159, 1160, and 1255), the 19 Act entitled ‘‘An Act to adjust the status of Cuban 20 refugees to that of lawful permanent residents of the 21 United States, and for other purposes’’, approved 22 November 2, 1966 (Public Law 89–732; 8 U.S.C. 23 1255 note), Public Law 95–145 (8 U.S.C. 1255 24 note), or the Immigration Reform and Control Act 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00103 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 104 •S 1258 IS of 1986 (Public Law 99–603; 100 Stat. 3359) or 1 any amendment made by that Act. 2 (c) PROOF OF ELIGIBILITY.— 3 (1) IN GENERAL.—An alien may establish that 4 the alien meets the requirements under section 5 151(a)(1) or 153(a)(1) through government employ- 6 ment records or records supplied by employers or 7 collective bargaining organizations, and other reli- 8 able documentation as the alien may provide. The 9 Secretary shall establish special procedures to prop- 10 erly credit work in cases in which an alien was em- 11 ployed under an assumed name. 12 (2) DOCUMENTATION OF WORK HISTORY.— 13 (A) BURDEN OF PROOF.—An alien apply- 14 ing for status under section 151(a) or 153(a) 15 has the burden of proving by a preponderance 16 of the evidence that the alien has worked the 17 requisite number of hours or days required 18 under section 151(a)(1) or 153(a)(1), as appli- 19 cable. 20 (B) TIMELY PRODUCTION OF RECORDS.— 21 If an employer or farm labor contractor employ- 22 ing such an alien has kept proper and adequate 23 records respecting such employment, the alien’s 24 burden of proof under subparagraph (A) may 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00104 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 105 •S 1258 IS be met by securing timely production of those 1 records under regulations to be promulgated by 2 the Secretary. 3 (C) SUFFICIENT EVIDENCE.—An alien 4 may meet the burden of proof under subpara- 5 graph (A) to establish that the alien has per- 6 formed the days or hours of work required by 7 section 151(a)(1) or 153(a)(1) by producing 8 sufficient evidence to show the extent of that 9 employment as a matter of just and reasonable 10 inference. 11 (d) APPLICATIONS SUBMITTED TO QUALIFIED DES- 12 IGNATED ENTITIES.— 13 (1) REQUIREMENTS.—Each qualified des- 14 ignated entity shall agree— 15 (A) to forward to the Secretary an applica- 16 tion submitted to that entity pursuant to sub- 17 section (a)(1)(B) if the applicant has consented 18 to such forwarding; 19 (B) not to forward to the Secretary any 20 such application if the applicant has not con- 21 sented to such forwarding; and 22 (C) to assist an alien in obtaining docu- 23 mentation of the alien’s work history, if the 24 alien requests such assistance. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00105 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 106 •S 1258 IS (2) NO AUTHORITY TO MAKE DETERMINA- 1 TIONS.—No qualified designated entity may make a 2 determination required by this part to be made by 3 the Secretary. 4 (e) LIMITATION ON ACCESS TO INFORMATION.—Files 5 and records collected or compiled by a qualified designated 6 entity for the purposes of this section are confidential and 7 the Secretary shall not have access to such a file or record 8 relating to an alien without the consent of the alien, except 9 as allowed by a court order issued pursuant to subsection 10 (f). 11 (f) CONFIDENTIALITY OF INFORMATION.— 12 (1) IN GENERAL.—Except as otherwise pro- 13 vided in this section, the Secretary or any other offi- 14 cial or employee of the Department or a bureau or 15 agency of the Department is prohibited from— 16 (A) using information furnished by the ap- 17 plicant pursuant to an application filed under 18 this title, the information provided by an appli- 19 cant to a qualified designated entity, or any in- 20 formation provided by an employer or former 21 employer for any purpose other than to make a 22 determination on the application or for impos- 23 ing the penalties described in subsection (g); 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00106 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 107 •S 1258 IS (B) making any publication in which the 1 information furnished by any particular indi- 2 vidual can be identified; or 3 (C) permitting a person other than a 4 sworn officer or employee of the Department or 5 a bureau or agency of the Department or, with 6 respect to applications filed with a qualified 7 designated entity, that qualified designated en- 8 tity, to examine individual applications. 9 (2) REQUIRED DISCLOSURES.—The Secretary 10 shall provide the information furnished under this 11 title or any other information derived from such fur- 12 nished information to— 13 (A) a duly recognized law enforcement en- 14 tity in connection with a criminal investigation 15 or prosecution, if such information is requested 16 in writing by such entity; or 17 (B) an official coroner, for purposes of af- 18 firmatively identifying a deceased individual, 19 whether or not the death of such individual re- 20 sulted from a crime. 21 (3) CONSTRUCTION.— 22 (A) IN GENERAL.—Nothing in this sub- 23 section may be construed to limit the use, or re- 24 lease, for immigration enforcement purposes or 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00107 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 108 •S 1258 IS law enforcement purposes, of information con- 1 tained in files or records of the Department 2 pertaining to an application filed under this sec- 3 tion, other than information furnished by an 4 applicant pursuant to the application, or any 5 other information derived from the application, 6 that is not available from any other source. 7 (B) CRIMINAL CONVICTIONS.—Notwith- 8 standing any other provision of this subsection, 9 information concerning whether the alien apply- 10 ing for blue card status or an adjustment of 11 status under section 153 has been convicted of 12 a crime at any time may be used or released for 13 immigration enforcement or law enforcement 14 purposes. 15 (4) CRIME.—Any person who knowingly uses, 16 publishes, or permits information to be examined in 17 violation of this subsection shall be subject to a fine 18 in an amount not to exceed $10,000. 19 (g) PENALTIES FOR FALSE STATEMENTS IN APPLI- 20 CATIONS.— 21 (1) CRIMINAL PENALTY.—Any person who— 22 (A) files an application for blue card status 23 under this section or for adjustment of status 24 under section 153 and knowingly and willfully 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00108 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 109 •S 1258 IS falsifies, conceals, or covers up a material fact 1 or makes any false, fictitious, or fraudulent 2 statements or representations, or makes or uses 3 any false writing or document knowing the 4 same to contain any false, fictitious, or fraudu- 5 lent statement or entry; or 6 (B) creates or supplies a false writing or 7 document for use in making such an applica- 8 tion, 9 shall be fined in accordance with title 18, United 10 States Code, imprisoned not more than 5 years, or 11 both. 12 (2) INADMISSIBILITY.—An alien who is con- 13 victed of a crime under paragraph (1) shall be con- 14 sidered to be inadmissible to the United States on 15 the grounds described in section 212(a)(6)(C)(i) of 16 the Immigration and Nationality Act (8 U.S.C. 17 1182(a)(6)(C)(i)). 18 (h) ELIGIBILITY FOR LEGAL SERVICES.—Section 19 114(a)(11) of Public Law 104–134 (110 Stat. 1321–53 20 et seq.) may not be construed to prevent a recipient of 21 funds under the Legal Services Corporation Act (42 22 U.S.C. 2996 et seq.) from providing legal assistance di- 23 rectly related to an application for blue card status under 24 this section or for adjustment of status under section 153. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00109 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 110 •S 1258 IS (i) APPLICATION FEES.— 1 (1) FEE SCHEDULE.—The Secretary shall pro- 2 vide for a schedule of fees that— 3 (A) shall be charged for the filing of an 4 application for blue card status under this sec- 5 tion or for adjustment of status under section 6 153; and 7 (B) may be charged by qualified des- 8 ignated entities to help defray the costs of serv- 9 ices provided to such applicants. 10 (2) PROHIBITION ON EXCESS FEES BY QUALI- 11 FIED DESIGNATED ENTITIES.—A qualified des- 12 ignated entity may not charge any fee in excess of, 13 or in addition to, the fees authorized under para- 14 graph (1)(B) for services provided to applicants. 15 (3) DISPOSITION OF FEES.— 16 (A) IN GENERAL.—There is established in 17 the general fund of the Treasury a separate ac- 18 count, which shall be known as the ‘‘Agricul- 19 tural Worker Immigration Status Adjustment 20 Account’’. Notwithstanding any other provision 21 of law, there shall be deposited as offsetting re- 22 ceipts into the account all fees collected under 23 paragraph (1)(A). 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00110 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 111 •S 1258 IS (B) USE OF FEES FOR APPLICATION PROC- 1 ESSING.—Amounts deposited in the ‘‘Agricul- 2 tural Worker Immigration Status Adjustment 3 Account’’ shall remain available to the Sec- 4 retary until expended for processing applica- 5 tions for blue card status under this section or 6 for adjustment of status under section 153. 7 SEC. 153. ADJUSTMENT TO PERMANENT RESIDENCE. 8 (a) IN GENERAL.—Except as provided in subsection 9 (b), the Secretary shall adjust the status of an alien grant- 10 ed blue card status to that of an alien lawfully admitted 11 for permanent residence if the Secretary determines that 12 the following requirements are satisfied: 13 (1) QUALIFYING EMPLOYMENT.— 14 (A) IN GENERAL.—Subject to subpara- 15 graph (B), the alien has performed at least— 16 (i) 5 years of agricultural employment 17 in the United States for at least 100 work 18 days per year, during the 5-year period be- 19 ginning on the date of the enactment of 20 this Act; or 21 (ii) 3 years of agricultural employ- 22 ment in the United States for at least 150 23 work days per year, during the 3-year pe- 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00111 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 112 •S 1258 IS riod beginning on the date of the enact- 1 ment of this Act. 2 (B) 4-YEAR PERIOD OF EMPLOYMENT.— 3 An alien shall be considered to meet the re- 4 quirements of subparagraph (A) if the alien has 5 performed, during the 4-year period beginning 6 on the date of the enactment of this Act— 7 (i) agricultural employment in the 8 United States for at least 150 work days 9 during 3 of such years; and 10 (ii) at least 100 work days during the 11 remaining year. 12 (2) PROOF.—An alien may demonstrate compli- 13 ance with the requirement under paragraph (1) by 14 submitting— 15 (A) the record of employment described in 16 section 151(e); or 17 (B) documentation that may be submitted 18 under section 152(c). 19 (3) EXTRAORDINARY CIRCUMSTANCES.— 20 (A) IN GENERAL.—In determining whether 21 an alien has met the requirement under para- 22 graph (1)(A), the Secretary may credit the alien 23 with not more than 12 additional months of ag- 24 ricultural employment in the United States to 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00112 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 113 •S 1258 IS meet such requirement if the alien was unable 1 to work in agricultural employment due to— 2 (i) pregnancy, injury, or disease, if the 3 alien can establish such pregnancy, dis- 4 abling injury, or disease through medical 5 records; 6 (ii) illness, disease, or other special 7 needs of a minor child, if the alien can es- 8 tablish such illness, disease, or special 9 needs through medical records; 10 (iii) severe weather conditions that 11 prevented the alien from engaging in agri- 12 cultural employment for a significant pe- 13 riod of time; or 14 (iv) termination from agricultural em- 15 ployment, if the Secretary finds that the 16 termination was without just cause and 17 that the alien was unable to find alter- 18 native agricultural employment after a rea- 19 sonable job search. 20 (B) EFFECT OF FINDING.—A finding 21 made under subparagraph (A)(iv), with respect 22 to an alien, shall not— 23 (i) be conclusive, binding, or admis- 24 sible in a separate or subsequent judicial 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00113 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 114 •S 1258 IS or administrative action or proceeding be- 1 tween the alien and a current or prior em- 2 ployer of the alien or any other party; or 3 (ii) subject the alien’s employer to the 4 payment of attorney fees incurred by the 5 alien in seeking to obtain a finding under 6 subparagraph (A)(iv). 7 (4) APPLICATION PERIOD.—The alien applies 8 for adjustment of status not later than 7 years after 9 the date of the enactment of this Act. 10 (5) FINE.—The alien pays a fine of $400 to the 11 Secretary. 12 (b) GROUNDS FOR DENIAL OF ADJUSTMENT OF STA- 13 TUS.—The Secretary shall deny an alien granted blue card 14 status an adjustment of status under this section if— 15 (1) the Secretary finds, by a preponderance of 16 the evidence, that the adjustment to blue card status 17 was the result of fraud or willful misrepresentation, 18 as described in section 212(a)(6)(C)(i) of the Immi- 19 gration and Nationality Act (8 U.S.C. 20 1182(a)(6)(C)(i)); or 21 (2) the alien— 22 (A) commits an act that makes the alien 23 inadmissible to the United States under section 24 212 of the Immigration and Nationality Act (8 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00114 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 115 •S 1258 IS U.S.C. 1182), except as provided under section 1 154(a)(2); 2 (B) is convicted of a felony or 3 or more 3 misdemeanors committed in the United States; 4 (C) is convicted of an offense, an element 5 of which involves bodily injury, threat of serious 6 bodily injury, or harm to property in excess of 7 $500; or 8 (D) failed to perform the agricultural em- 9 ployment required under paragraph (1)(A) of 10 subsection (a) unless the alien was unable to 11 work in agricultural employment due to the ex- 12 traordinary circumstances described in para- 13 graph (3) of such subsection. 14 (c) GROUNDS FOR REMOVAL.—Any alien granted 15 blue card status who does not apply for adjustment of sta- 16 tus under this section before the expiration of the applica- 17 tion period described in subsection (a)(4) or who fails to 18 meet the other requirements of subsection (a) by the end 19 of the application period, is deportable and may be re- 20 moved under section 240 of the Immigration and Nation- 21 ality Act (8 U.S.C. 1229a). 22 (d) PAYMENT OF TAXES.— 23 (1) IN GENERAL.—Not later than the date on 24 which an alien’s status is adjusted under this sec- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00115 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 116 •S 1258 IS tion, the alien shall establish that the alien does not 1 owe any applicable Federal tax liability by estab- 2 lishing that— 3 (A) no such tax liability exists; 4 (B) all such outstanding tax liabilities have 5 been paid; or 6 (C) the alien has entered into an agree- 7 ment for payment of all outstanding liabilities 8 with the Internal Revenue Service. 9 (2) APPLICABLE FEDERAL TAX LIABILITY.—In 10 paragraph (1), the term ‘‘applicable Federal tax li- 11 ability’’ means liability for Federal taxes, including 12 penalties and interest, owed for any year during the 13 period of employment required under subsection 14 (a)(1) for which the statutory period for assessment 15 of any deficiency for such taxes has not expired. 16 (3) IRS COOPERATION.—The Secretary of the 17 Treasury shall establish rules and procedures under 18 which the Commissioner of Internal Revenue shall 19 provide documentation to an alien upon request to 20 establish the payment of all taxes required under 21 this subsection. 22 (e) SPOUSES AND MINOR CHILDREN.— 23 (1) IN GENERAL.—Notwithstanding any other 24 provision of law, the Secretary shall confer the sta- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00116 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 117 •S 1258 IS tus of lawful permanent resident on the spouse and 1 minor child of an alien granted any adjustment of 2 status under subsection (a), including any individual 3 who was a minor child on the date such alien was 4 granted blue card status, if the spouse or minor 5 child applies for such status, or if the principal alien 6 includes the spouse or minor child in an application 7 for adjustment of status to that of a lawful perma- 8 nent resident. 9 (2) TREATMENT OF SPOUSES AND MINOR CHIL- 10 DREN.— 11 (A) GRANTING OF STATUS AND RE- 12 MOVAL.—The Secretary shall grant derivative 13 status to the alien spouse and any minor child 14 residing in the United States of an alien grant- 15 ed blue card status and shall not remove such 16 derivative spouse or child during the period that 17 the alien granted blue card status maintains 18 such status, except as provided in paragraph 19 (3). A grant of derivative status to such a 20 spouse or child under this subparagraph shall 21 not decrease the number of aliens who may re- 22 ceive blue card status under section 151(h). 23 (B) TRAVEL.—The derivative spouse and 24 any minor child of an alien granted blue card 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00117 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 118 •S 1258 IS status may travel outside the United States in 1 the same manner as an alien lawfully admitted 2 for permanent residence. 3 (C) EMPLOYMENT.—The derivative spouse 4 of an alien granted blue card status may apply 5 to the Secretary for a work permit to authorize 6 such spouse to engage in any lawful employ- 7 ment in the United States while such alien 8 maintains blue card status. 9 (3) GROUNDS FOR DENIAL OF ADJUSTMENT OF 10 STATUS AND REMOVAL.—The Secretary shall deny 11 an alien spouse or child adjustment of status under 12 paragraph (1) and may remove such spouse or child 13 under section 240 of the Immigration and Nation- 14 ality Act (8 U.S.C. 1229a) if the spouse or child— 15 (A) commits an act that makes the alien 16 spouse or child inadmissible to the United 17 States under section 212 of such Act (8 U.S.C. 18 1182), except as provided under section 19 154(a)(2); 20 (B) is convicted of a felony or 3 or more 21 misdemeanors committed in the United States; 22 or 23 (C) is convicted of an offense, an element 24 of which involves bodily injury, threat of serious 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00118 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 119 •S 1258 IS bodily injury, or harm to property in excess of 1 $500. 2 SEC. 154. OTHER PROVISIONS. 3 (a) WAIVER OF NUMERICAL LIMITATIONS AND CER- 4 TAIN GROUNDS FOR INADMISSIBILITY.— 5 (1) NUMERICAL LIMITATIONS DO NOT APPLY.— 6 The numerical limitations of sections 201 and 202 7 of the Immigration and Nationality Act (8 U.S.C. 8 1151 and 1152) shall not apply to the adjustment 9 of aliens to lawful permanent resident status under 10 section 153. 11 (2) WAIVER OF CERTAIN GROUNDS OF INAD- 12 MISSIBILITY.—In the determination of an alien’s eli- 13 gibility for status under section 101(a) or an alien’s 14 eligibility for adjustment of status under section 15 153(b)(2)(A) the following rules shall apply: 16 (A) GROUNDS OF EXCLUSION NOT APPLI- 17 CABLE.—The provisions of paragraphs (5), 18 (6)(A), (7), and (9) of section 212(a) of the Im- 19 migration and Nationality Act (8 U.S.C. 20 1182(a)) shall not apply. 21 (B) WAIVER OF OTHER GROUNDS.— 22 (i) IN GENERAL.—Except as provided 23 in subparagraph (B), the Secretary may 24 waive any other provision of such section 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00119 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 120 •S 1258 IS 212(a) in the case of individual aliens for 1 humanitarian purposes, to ensure family 2 unity, or if otherwise in the public interest. 3 (ii) GROUNDS THAT MAY NOT BE 4 WAIVED.—Subparagraphs (A), (B), (C), 5 (D), (G), (H), and (I) of paragraph (2) 6 and paragraphs (3) and (4) of such section 7 212(a) may not be waived by the Secretary 8 under subparagraph (A). 9 (iii) CONSTRUCTION.—Nothing in this 10 paragraph may be construed as affecting 11 the authority of the Secretary other than 12 under this subparagraph to waive provi- 13 sions under such section 212(a). 14 (C) SPECIAL RULE FOR DETERMINATION 15 OF PUBLIC CHARGE.—An alien is not ineligible 16 for blue card status or an adjustment of status 17 under section 153 by reason of a ground of in- 18 admissibility under section 212(a)(4) of the Im- 19 migration and Nationality Act (8 U.S.C. 20 1182(a)(4)) if the alien demonstrates a history 21 of employment in the United States evidencing 22 self-support without reliance on public cash as- 23 sistance. 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00120 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 121 •S 1258 IS (3) TEMPORARY STAY OF REMOVAL AND WORK 1 AUTHORIZATION FOR CERTAIN APPLICANTS.— 2 (A) BEFORE APPLICATION PERIOD.—Ef- 3 fective on the date of the enactment of this Act, 4 the Secretary shall provide that, in the case of 5 an alien who is apprehended before the begin- 6 ning of the application period described in sec- 7 tion 151(a)(2) and who can establish a non- 8 frivolous case of eligibility for blue card status 9 (but for the fact that the alien may not apply 10 for such status until the beginning of such pe- 11 riod), until the alien has had the opportunity 12 during the first 30 days of the application pe- 13 riod to complete the filing of an application for 14 blue card status, the alien— 15 (i) may not be removed; and 16 (ii) shall be granted authorization to 17 engage in employment in the United States 18 and be provided an employment authorized 19 endorsement or other appropriate work 20 permit for such purpose. 21 (B) DURING APPLICATION PERIOD.—The 22 Secretary shall provide that, in the case of an 23 alien who presents a nonfrivolous application 24 for blue card status during the application pe- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00121 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 122 •S 1258 IS riod described in section 151(a)(2), including 1 an alien who files such an application within 30 2 days of the alien’s apprehension, and until a 3 final determination on the application has been 4 made in accordance with this section, the 5 alien— 6 (i) may not be removed; and 7 (ii) shall be granted authorization to 8 engage in employment in the United States 9 and be provided an employment authorized 10 endorsement or other appropriate work 11 permit for such purpose. 12 (b) ADMINISTRATIVE AND JUDICIAL REVIEW.— 13 (1) IN GENERAL.—There shall be no adminis- 14 trative or judicial review of a determination respect- 15 ing an application for blue card status or adjustment 16 of status under section 153 except in accordance 17 with this section. 18 (2) ADMINISTRATIVE REVIEW.— 19 (A) SINGLE LEVEL OF ADMINISTRATIVE 20 APPELLATE REVIEW.—The Secretary shall es- 21 tablish an appellate authority to provide for a 22 single level of administrative appellate review of 23 such a determination. 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00122 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 123 •S 1258 IS (B) STANDARD FOR REVIEW.—Such ad- 1 ministrative appellate review shall be based 2 solely upon the administrative record estab- 3 lished at the time of the determination on the 4 application and upon such additional or newly 5 discovered evidence as may not have been avail- 6 able at the time of the determination. 7 (3) JUDICIAL REVIEW.— 8 (A) LIMITATION TO REVIEW OF RE- 9 MOVAL.—There shall be judicial review of such 10 a determination only in the judicial review of an 11 order of removal under section 242 of the Im- 12 migration and Nationality Act (8 U.S.C. 1252). 13 (B) STANDARD FOR JUDICIAL REVIEW.— 14 Such judicial review shall be based solely upon 15 the administrative record established at the 16 time of the review by the appellate authority 17 and the findings of fact and determinations 18 contained in such record shall be conclusive un- 19 less the applicant can establish abuse of discre- 20 tion or that the findings are directly contrary to 21 clear and convincing facts contained in the 22 record considered as a whole. 23 (c) USE OF INFORMATION.—Beginning not later than 24 the first day of the application period described in section 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00123 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 124 •S 1258 IS 151(a)(2), the Secretary, in cooperation with qualified 1 designated entities (as that term is defined in section 2 152(b)), shall broadly disseminate information respecting 3 the benefits that aliens may receive under this part and 4 the requirements that an alien is required to meet to re- 5 ceive such benefits. 6 (d) REGULATIONS, EFFECTIVE DATE, AUTHORIZA- 7 TION OF APPROPRIATIONS.— 8 (1) REGULATIONS.—The Secretary shall issue 9 regulations to implement this chapter not later than 10 the first day of the seventh month that begins after 11 the date of the enactment of this Act. 12 (2) EFFECTIVE DATE.—This chapter shall take 13 effect on the date that regulations required under 14 subsection (a) are issued, regardless of whether such 15 regulations are issued on an interim basis or on any 16 other basis. 17 (3) AUTHORIZATION OF APPROPRIATIONS.— 18 There are authorized to be appropriated to the Sec- 19 retary such sums as may be necessary to implement 20 this part, including any sums needed for costs asso- 21 ciated with the initiation of such implementation, for 22 fiscal years 2012 and 2013. 23 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00124 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 125 •S 1258 IS SEC. 155. CORRECTION OF SOCIAL SECURITY RECORDS. 1 (a) IN GENERAL.—Section 208(e)(1) of the Social 2 Security Act (42 U.S.C. 408(e)(1)) is amended— 3 (1) in subparagraph (B)(ii), by striking ‘‘or’’ at 4 the end; 5 (2) in subparagraph (C), by inserting ‘‘or’’ at 6 the end; 7 (3) by inserting after subparagraph (C) the fol- 8 lowing: 9 ‘‘(D) who is granted blue card status 10 under the AgJOBS Act of 2011.’’; and 11 (4) by striking ‘‘1990.’’ and inserting ‘‘1990, or 12 in the case of an alien described in subparagraph 13 (D), if such conduct is alleged to have occurred be- 14 fore the date on which the alien was granted blue 15 card status.’’. 16 (b) EFFECTIVE DATE.—The amendments made by 17 subsection (a) shall take effect on the first day of the sev- 18 enth month that begins after the date of the enactment 19 of this Act. 20 SEC. 156. DETERMINATION AND USE OF USER FEES. 21 (a) SCHEDULE OF FEES.—The Secretary shall estab- 22 lish and periodically adjust a schedule of fees for the em- 23 ployment of aliens pursuant to the amendment made by 24 section 159 and a collection process for such fees from 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00125 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 126 •S 1258 IS employers. Such fees shall be the only fees chargeable to 1 employers for services provided under such amendment. 2 (b) DETERMINATION OF SCHEDULE.— 3 (1) IN GENERAL.—The schedule under sub- 4 section (a) shall reflect a fee rate based on the num- 5 ber of job opportunities indicated in the employer’s 6 application under section 218 of the Immigration 7 and Nationality Act, as amended by section 159, 8 and sufficient to provide for the direct costs of pro- 9 viding services related to an employer’s authorization 10 to employ aliens pursuant to the amendment made 11 by section 159(a), to include the certification of eli- 12 gible employers, the issuance of documentation, and 13 the admission of eligible aliens. 14 (2) PROCEDURE.— 15 (A) IN GENERAL.—In establishing and ad- 16 justing such a schedule, the Secretary shall 17 comply with Federal cost accounting and fee 18 setting standards. 19 (B) PUBLICATION AND COMMENT.—The 20 Secretary shall publish in the Federal Register 21 an initial fee schedule and associated collection 22 process and the cost data or estimates upon 23 which such fee schedule is based, and any sub- 24 sequent amendments thereto, pursuant to which 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00126 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 127 •S 1258 IS public comment shall be sought and a final rule 1 issued. 2 (c) USE OF PROCEEDS.—Notwithstanding any other 3 provision of law, all proceeds resulting from the payment 4 of the fees pursuant to the amendment made by section 5 159 shall be available without further appropriation and 6 shall remain available without fiscal year limitation to re- 7 imburse the Secretary, the Secretary of State, and the 8 Secretary of Labor for the costs of carrying out— 9 (1) sections 218 and 218B of the Immigration 10 and Nationality Act, as added by section 159; and 11 (2) the provisions of this part. 12 (d) EFFECTIVE DATE.—This section and the amend- 13 ments made by section 159 shall take effect 1 year after 14 the date of the enactment of this Act. 15 SEC. 157. RULEMAKING. 16 (a) REQUIREMENT FOR THE SECRETARY TO CON- 17 SULT.—The Secretary shall consult with the Secretary of 18 Labor and the Secretary of Agriculture during the promul- 19 gation of all regulations to implement the duties of the 20 Secretary under this Act and the amendments made by 21 this Act. 22 (b) REQUIREMENT FOR THE SECRETARY OF STATE 23 TO CONSULT.—The Secretary of State shall consult with 24 the Secretary, the Secretary of Labor, and the Secretary 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00127 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 128 •S 1258 IS of Agriculture on all regulations to implement the duties 1 of the Secretary of State under this Act and the amend- 2 ments made by this Act. 3 (c) REQUIREMENT FOR THE SECRETARY OF LABOR 4 TO CONSULT.—The Secretary of Labor shall consult with 5 the Secretary of Agriculture and the Secretary on all regu- 6 lations to implement the duties of the Secretary of Labor 7 under this Act and the amendments made by this Act. 8 (d) DEADLINE FOR ISSUANCE OF REGULATIONS.— 9 All regulations to implement the duties of the Secretary, 10 the Secretary of State, and the Secretary of Labor created 11 under sections 218, 218A, 218B, 218C, and 218D of the 12 Immigration and Nationality Act, as amended or added 13 by section 159 of this Act— 14 (1) shall take effect on the effective date of sec- 15 tion 159; and 16 (2) shall be issued not later than 1 year after 17 the date of the enactment of this Act. 18 SEC. 158. REPORTS TO CONGRESS. 19 (a) ANNUAL REPORT.—Not later than September 30 20 of each year, the Secretary shall submit a report to Con- 21 gress that identifies, for the previous year— 22 (1) the number of job opportunities approved 23 for employment of aliens admitted under section 24 101(a)(15)(H)(ii)(a) of the Immigration and Nation- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00128 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 129 •S 1258 IS ality Act (8 U.S.C. 1101(a)(15)(H)(ii)(a)), and the 1 number of workers actually admitted, disaggregated 2 by State and by occupation; 3 (2) the number of such aliens reported to have 4 abandoned employment pursuant to section 5 218B(e)(2) of such Act; 6 (3) the number of such aliens who departed the 7 United States within the period specified in section 8 218B(d) of such Act; 9 (4) the number of aliens who applied for blue 10 card status pursuant to section 151(a); 11 (5) the number of aliens who were granted such 12 status pursuant section 151(a); 13 (6) the number of aliens who applied for an ad- 14 justment of status pursuant to section 153(a); and 15 (7) the number of aliens who received an ad- 16 justment of status pursuant section 153(a). 17 (b) IMPLEMENTATION REPORT.—Not later than 180 18 days after the date of the enactment of this Act, the Sec- 19 retary shall prepare and submit a report to Congress that 20 describes the measures being taken and the progress made 21 in implementing this part. 22 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00129 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 130 •S 1258 IS Subchapter A—Reform of H–2A Worker 1 Program 2 SEC. 159. AMENDMENTS TO THE IMMIGRATION AND NA- 3 TIONALITY ACT. 4 (a) IN GENERAL.—Title II (8 U.S.C. 1151 et seq.) 5 is amended by striking section 218 and inserting the fol- 6 lowing: 7 ‘‘SEC. 218. H–2A EMPLOYER APPLICATIONS. 8 ‘‘(a) APPLICATIONS TO THE SECRETARY OF 9 LABOR.— 10 ‘‘(1) IN GENERAL.—No alien may be admitted 11 to the United States as an H–2A worker, or other- 12 wise provided status as an H–2A worker, unless the 13 employer has filed with the Secretary of Labor an 14 application containing— 15 ‘‘(A) the assurances described in sub- 16 section (b); 17 ‘‘(B) a description of the nature and loca- 18 tion of the work to be performed; 19 ‘‘(C) the anticipated period (expected be- 20 ginning and ending dates) for which the work- 21 ers will be needed; and 22 ‘‘(D) the number of job opportunities in 23 which the employer seeks to employ the work- 24 ers. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00130 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 131 •S 1258 IS ‘‘(2) ACCOMPANIED BY JOB OFFER.—Each ap- 1 plication filed under paragraph (1) shall be accom- 2 panied by a copy of the job offer describing the 3 wages and other terms and conditions of employ- 4 ment and the bona fide occupational qualifications 5 that shall be possessed by a worker to be employed 6 in the job opportunity in question. 7 ‘‘(b) ASSURANCES FOR INCLUSION IN APPLICA- 8 TIONS.—The assurances referred to in subsection (a)(1) 9 are the following: 10 ‘‘(1) JOB OPPORTUNITIES COVERED BY COL- 11 LECTIVE BARGAINING AGREEMENTS.—With respect 12 to a job opportunity that is covered under a collec- 13 tive bargaining agreement: 14 ‘‘(A) UNION CONTRACT DESCRIBED.—The 15 job opportunity is covered by a union contract 16 which was negotiated at arm’s length between a 17 bona fide union and the employer. 18 ‘‘(B) STRIKE OR LOCKOUT.—The specific 19 job opportunity for which the employer is re- 20 questing an H–2A worker is not vacant because 21 the former occupant is on strike or being locked 22 out in the course of a labor dispute. 23 ‘‘(C) NOTIFICATION OF BARGAINING REP- 24 RESENTATIVES.—The employer, at the time of 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00131 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 132 •S 1258 IS filing the application, has provided notice of the 1 filing under this paragraph to the bargaining 2 representative of the employer’s employees in 3 the occupational classification at the place or 4 places of employment for which aliens are 5 sought. 6 ‘‘(D) TEMPORARY OR SEASONAL JOB OP- 7 PORTUNITIES.—The job opportunity is tem- 8 porary or seasonal. 9 ‘‘(E) OFFERS TO UNITED STATES WORK- 10 ERS.—The employer has offered or will offer 11 the job to any eligible United States worker 12 who applies and is equally or better qualified 13 for the job for which the nonimmigrant is, or 14 the nonimmigrants are, sought and who will be 15 available at the time and place of need. 16 ‘‘(F) PROVISION OF INSURANCE.—If the 17 job opportunity is not covered by the State 18 workers’ compensation law, the employer will 19 provide, at no cost to the worker, insurance cov- 20 ering injury and disease arising out of, and in 21 the course of, the worker’s employment which 22 will provide benefits at least equal to those pro- 23 vided under the State’s workers’ compensation 24 law for comparable employment. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00132 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 133 •S 1258 IS ‘‘(2) JOB OPPORTUNITIES NOT COVERED BY 1 COLLECTIVE BARGAINING AGREEMENTS.—With re- 2 spect to a job opportunity that is not covered under 3 a collective bargaining agreement: 4 ‘‘(A) STRIKE OR LOCKOUT.—The specific 5 job opportunity for which the employer has ap- 6 plied for an H–2A worker is not vacant because 7 the former occupant is on strike or being locked 8 out in the course of a labor dispute. 9 ‘‘(B) TEMPORARY OR SEASONAL JOB OP- 10 PORTUNITIES.—The job opportunity is tem- 11 porary or seasonal. 12 ‘‘(C) BENEFIT, WAGE, AND WORKING CON- 13 DITIONS.—The employer will provide, at a min- 14 imum, the benefits, wages, and working condi- 15 tions required by section 218A to all workers 16 employed in the job opportunities for which the 17 employer has applied for an H–2A worker 18 under subsection (a) and to all other workers in 19 the same occupation at the place of employ- 20 ment. 21 ‘‘(D) NONDISPLACEMENT OF UNITED 22 STATES WORKERS.—The employer did not dis- 23 place and will not displace a United States 24 worker employed by the employer during the 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00133 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 134 •S 1258 IS period of employment and for a period of 30 1 days preceding the period of employment in the 2 occupation at the place of employment for 3 which the employer has applied for an H–2A 4 worker. 5 ‘‘(E) REQUIREMENTS FOR PLACEMENT OF 6 THE NONIMMIGRANT WITH OTHER EMPLOY- 7 ERS.—The employer will not place the non- 8 immigrant with another employer unless— 9 ‘‘(i) the nonimmigrant performs du- 10 ties in whole or in part at 1 or more work- 11 sites owned, operated, or controlled by 12 such other employer; 13 ‘‘(ii) there are indicia of an employ- 14 ment relationship between the non- 15 immigrant and such other employer; and 16 ‘‘(iii) the employer has inquired of the 17 other employer as to whether, and has no 18 actual knowledge or notice that, during the 19 period of employment and for a period of 20 30 days preceding the period of employ- 21 ment, the other employer has displaced or 22 intends to displace a United States worker 23 employed by the other employer in the oc- 24 cupation at the place of employment for 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00134 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 135 •S 1258 IS which the employer seeks approval to em- 1 ploy H–2A workers. 2 ‘‘(F) STATEMENT OF LIABILITY.—The ap- 3 plication form shall include a clear statement 4 explaining the liability under subparagraph (E) 5 of an employer if the other employer described 6 in such subparagraph displaces a United States 7 worker as described in such subparagraph. 8 ‘‘(G) PROVISION OF INSURANCE.—If the 9 job opportunity is not covered by the State 10 workers’ compensation law, the employer will 11 provide, at no cost to the worker, insurance cov- 12 ering injury and disease arising out of and in 13 the course of the worker’s employment which 14 will provide benefits at least equal to those pro- 15 vided under the State’s workers’ compensation 16 law for comparable employment. 17 ‘‘(H) EMPLOYMENT OF UNITED STATES 18 WORKERS.— 19 ‘‘(i) RECRUITMENT.—The employer 20 has taken or will take the following steps 21 to recruit United States workers for the 22 job opportunities for which the H–2A non- 23 immigrant is, or H–2A nonimmigrants are, 24 sought: 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00135 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 136 •S 1258 IS ‘‘(I) CONTACTING FORMER 1 WORKERS.—The employer shall make 2 reasonable efforts to mail a letter to, 3 or otherwise contact, any United 4 States worker the employer employed 5 during the previous season in the oc- 6 cupation at the place of intended em- 7 ployment for which the employer is 8 applying for workers and has made 9 the availability of the employer’s job 10 opportunities in the occupation at the 11 place of intended employment known 12 to such previous workers, unless the 13 worker was terminated from employ- 14 ment by the employer for a lawful job- 15 related reason or abandoned the job 16 before the worker completed the pe- 17 riod of employment of the job oppor- 18 tunity for which the worker was hired. 19 ‘‘(II) FILING A JOB OFFER WITH 20 THE LOCAL OFFICE OF THE STATE 21 EMPLOYMENT SECURITY AGENCY.— 22 Not later than 28 days before the 23 date on which the employer desires to 24 employ an H–2A worker in a tem- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00136 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 137 •S 1258 IS porary or seasonal agricultural job op- 1 portunity, the employer shall submit a 2 copy of the job offer described in sub- 3 section (a)(2) to the local office of the 4 State employment security agency 5 which serves the area of intended em- 6 ployment and authorize the posting of 7 the job opportunity on ‘America’s Job 8 Bank’ or other electronic job registry, 9 except that nothing in this subclause 10 shall require the employer to file an 11 interstate job order under section 653 12 of title 20, Code of Federal Regula- 13 tions. 14 ‘‘(III) ADVERTISING OF JOB OP- 15 PORTUNITIES.—Not later than 14 16 days before the date on which the em- 17 ployer desires to employ an H–2A 18 worker in a temporary or seasonal ag- 19 ricultural job opportunity, the em- 20 ployer shall advertise the availability 21 of the job opportunities for which the 22 employer is seeking workers in a pub- 23 lication in the local labor market that 24 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00137 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 138 •S 1258 IS is likely to be patronized by potential 1 farm workers. 2 ‘‘(IV) EMERGENCY PROCE- 3 DURES.—The Secretary of Labor, by 4 regulation, shall provide a procedure 5 for acceptance and approval of appli- 6 cations in which the employer has not 7 complied with the provisions of this 8 clause because the employer’s need for 9 H–2A workers could not reasonably 10 have been foreseen. 11 ‘‘(ii) JOB OFFERS.—The employer has 12 offered or will offer the job to any eligible 13 United States worker who— 14 ‘‘(I) applies and is equally or bet- 15 ter qualified for the job for which the 16 nonimmigrant is, or nonimmigrants 17 are, sought; and 18 ‘‘(II) will be available at the time 19 and place of need. 20 ‘‘(iii) PERIOD OF EMPLOYMENT.—The 21 employer will provide employment to any 22 qualified United States worker who applies 23 to the employer during the period begin- 24 ning on the date on which the H–2A work- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00138 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 139 •S 1258 IS er departs for the employer’s place of em- 1 ployment and ending on the date on which 2 50 percent of the period of employment for 3 which the H–2A worker was hired has 4 elapsed, subject to the following require- 5 ments: 6 ‘‘(I) PROHIBITION.—No person 7 or entity shall willfully and knowingly 8 withhold United States workers before 9 the arrival of H–2A workers in order 10 to force the hiring of United States 11 workers under this clause. 12 ‘‘(II) COMPLAINTS.—Upon re- 13 ceipt of a complaint by an employer 14 that a violation of subclause (I) has 15 occurred, the Secretary of Labor shall 16 immediately investigate the complaint. 17 The Secretary of Labor shall, within 18 36 hours of the receipt of the com- 19 plaint, issue findings concerning the 20 alleged violation. If the Secretary of 21 Labor finds that a violation has oc- 22 curred, the Secretary of Labor shall 23 immediately suspend the application 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00139 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 140 •S 1258 IS of this clause with respect to that cer- 1 tification for that date of need. 2 ‘‘(III) PLACEMENT OF UNITED 3 STATES WORKERS.—Before referring 4 a United States worker to an em- 5 ployer during the period described in 6 the matter preceding subclause (I), 7 the Secretary of Labor shall make all 8 reasonable efforts to place the United 9 States worker in an open job accept- 10 able to the worker, if there are other 11 job offers pending with the job service 12 that offer similar job opportunities in 13 the area of intended employment. 14 ‘‘(iv) STATUTORY CONSTRUCTION.— 15 Nothing in this subparagraph shall be con- 16 strued to prohibit an employer from using 17 such legitimate selection criteria relevant 18 to the type of job that are normal or cus- 19 tomary to the type of job involved if such 20 criteria are not applied in a discriminatory 21 manner. 22 ‘‘(c) APPLICATIONS BY ASSOCIATIONS ON BEHALF 23 OF EMPLOYER MEMBERS.— 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00140 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 141 •S 1258 IS ‘‘(1) IN GENERAL.—An agricultural association 1 may file an application under subsection (a) on be- 2 half of 1 or more of its employer members that the 3 association certifies in its application has or have 4 agreed in writing to comply with the requirements of 5 this section and sections 218A, 218B, and 218C. 6 ‘‘(2) TREATMENT OF ASSOCIATIONS ACTING AS 7 EMPLOYERS.—If an association filing an application 8 under paragraph (1) is a joint or sole employer of 9 the temporary or seasonal agricultural workers re- 10 quested on the application, the certifications granted 11 under subsection (e)(2)(B) to the association may be 12 used for the certified job opportunities of any of its 13 producer members named on the application, and 14 such workers may be transferred among such pro- 15 ducer members to perform the agricultural services 16 of a temporary or seasonal nature for which the cer- 17 tifications were granted. 18 ‘‘(d) WITHDRAWAL OF APPLICATIONS.— 19 ‘‘(1) IN GENERAL.—An employer may withdraw 20 an application filed pursuant to subsection (a), ex- 21 cept that if the employer is an agricultural associa- 22 tion, the association may withdraw an application 23 filed pursuant to subsection (a) with respect to 1 or 24 more of its members. To withdraw an application, 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00141 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 142 •S 1258 IS the employer or association shall notify the Sec- 1 retary of Labor in writing, and the Secretary of 2 Labor shall acknowledge in writing the receipt of 3 such withdrawal notice. An employer who withdraws 4 an application under subsection (a), or on whose be- 5 half an application is withdrawn, is relieved of the 6 obligations undertaken in the application. 7 ‘‘(2) LIMITATION.—An application may not be 8 withdrawn while any alien provided status under sec- 9 tion 101(a)(15)(H)(ii)(a) pursuant to such applica- 10 tion is employed by the employer. 11 ‘‘(3) OBLIGATIONS UNDER OTHER STATUTES.— 12 Any obligation incurred by an employer under any 13 other law or regulation as a result of the recruit- 14 ment of United States workers or H–2A workers 15 under an offer of terms and conditions of employ- 16 ment required as a result of making an application 17 under subsection (a) is unaffected by withdrawal of 18 such application. 19 ‘‘(e) REVIEW AND APPROVAL OF APPLICATIONS.— 20 ‘‘(1) RESPONSIBILITY OF EMPLOYERS.—The 21 employer shall make available for public examina- 22 tion, within 1 working day after the date on which 23 an application under subsection (a) is filed, at the 24 employer’s principal place of business or worksite, a 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00142 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 143 •S 1258 IS copy of each such application (and such accom- 1 panying documents as are necessary). 2 ‘‘(2) RESPONSIBILITY OF SECRETARY OF 3 LABOR.— 4 ‘‘(A) COMPILATION OF LIST.—The Sec- 5 retary of Labor shall compile, on a current 6 basis, a list (by employer and by occupational 7 classification) of the applications filed under 8 subsection (a). Such list shall include the wage 9 rate, number of workers sought, period of in- 10 tended employment, and date of need. The Sec- 11 retary of Labor shall make such list available 12 for examination in the District of Columbia. 13 ‘‘(B) REVIEW OF APPLICATIONS.—The 14 Secretary of Labor shall review such an applica- 15 tion only for completeness and obvious inac- 16 curacies. Unless the Secretary of Labor finds 17 that the application is incomplete or obviously 18 inaccurate, the Secretary of Labor shall certify 19 that the intending employer has filed with the 20 Secretary of Labor an application as described 21 in subsection (a). Such certification shall be 22 provided not later than 7 days after the appli- 23 cation is filed. 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00143 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 144 •S 1258 IS ‘‘SEC. 218A. H–2A EMPLOYMENT REQUIREMENTS. 1 ‘‘(a) PREFERENTIAL TREATMENT OF ALIENS PRO- 2 HIBITED.—Employers seeking to hire United States work- 3 ers shall offer the United States workers no less than the 4 same benefits, wages, and working conditions that the em- 5 ployer is offering, intends to offer, or will provide to H– 6 2A workers. Conversely, no job offer may impose on 7 United States workers any restrictions or obligations 8 which will not be imposed on the employer’s H–2A work- 9 ers. 10 ‘‘(b) MINIMUM BENEFITS, WAGES, AND WORKING 11 CONDITIONS.—Except in cases where higher benefits, 12 wages, or working conditions are required by the provi- 13 sions of subsection (a), in order to protect similarly em- 14 ployed United States workers from adverse effects with 15 respect to benefits, wages, and working conditions, every 16 job offer which shall accompany an application under sec- 17 tion 218(b)(2) shall include each of the following benefit, 18 wage, and working condition provisions: 19 ‘‘(1) REQUIREMENT TO PROVIDE HOUSING OR A 20 HOUSING ALLOWANCE.— 21 ‘‘(A) IN GENERAL.—An employer applying 22 under section 218(a) for H–2A workers shall 23 offer to provide housing at no cost to all work- 24 ers in job opportunities for which the employer 25 has applied under that section and to all other 26 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00144 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 145 •S 1258 IS workers in the same occupation at the place of 1 employment, whose place of residence is beyond 2 normal commuting distance. 3 ‘‘(B) TYPE OF HOUSING.—In complying 4 with subparagraph (A), an employer may, at 5 the employer’s election, provide housing that 6 meets applicable Federal standards for tem- 7 porary labor camps or secure housing that 8 meets applicable local standards for rental or 9 public accommodation housing or other sub- 10 stantially similar class of habitation, or in the 11 absence of applicable local standards, State 12 standards for rental or public accommodation 13 housing or other substantially similar class of 14 habitation. In the absence of applicable local or 15 State standards, Federal temporary labor camp 16 standards shall apply. 17 ‘‘(C) FAMILY HOUSING.—If it is the pre- 18 vailing practice in the occupation and area of 19 intended employment to provide family housing, 20 family housing shall be provided to workers 21 with families who request it. 22 ‘‘(D) WORKERS ENGAGED IN THE RANGE 23 PRODUCTION OF LIVESTOCK.—The Secretary of 24 Labor shall issue regulations that address the 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00145 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 146 •S 1258 IS specific requirements for the provision of hous- 1 ing to workers engaged in the range production 2 of livestock. 3 ‘‘(E) LIMITATION.—Nothing in this para- 4 graph shall be construed to require an employer 5 to provide or secure housing for persons who 6 were not entitled to such housing under the 7 temporary labor certification regulations in ef- 8 fect on June 1, 1986. 9 ‘‘(F) CHARGES FOR HOUSING.— 10 ‘‘(i) CHARGES FOR PUBLIC HOUS- 11 ING.—If public housing provided for mi- 12 grant agricultural workers under the aus- 13 pices of a local, county, or State govern- 14 ment is secured by an employer, and use of 15 the public housing unit normally requires 16 charges from migrant workers, such 17 charges shall be paid by the employer di- 18 rectly to the appropriate individual or enti- 19 ty affiliated with the housing’s manage- 20 ment. 21 ‘‘(ii) DEPOSIT CHARGES.—Charges in 22 the form of deposits for bedding or other 23 similar incidentals related to housing shall 24 not be levied upon workers by employers 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00146 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 147 •S 1258 IS who provide housing for their workers. An 1 employer may require a worker found to 2 have been responsible for damage to such 3 housing which is not the result of normal 4 wear and tear related to habitation to re- 5 imburse the employer for the reasonable 6 cost of repair of such damage. 7 ‘‘(G) HOUSING ALLOWANCE AS ALTER- 8 NATIVE.— 9 ‘‘(i) IN GENERAL.—If the requirement 10 set out in clause (ii) is satisfied, the em- 11 ployer may provide a reasonable housing 12 allowance instead of offering housing 13 under subparagraph (A). Upon the request 14 of a worker seeking assistance in locating 15 housing, the employer shall make a good 16 faith effort to assist the worker in identi- 17 fying and locating housing in the area of 18 intended employment. An employer who of- 19 fers a housing allowance to a worker, or 20 assists a worker in locating housing which 21 the worker occupies, pursuant to this 22 clause shall not be deemed a housing pro- 23 vider under section 203 of the Migrant and 24 Seasonal Agricultural Worker Protection 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00147 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 148 •S 1258 IS Act (29 U.S.C. 1823) solely by virtue of 1 providing such housing allowance. No 2 housing allowance may be used for housing 3 which is owned or controlled by the em- 4 ployer. 5 ‘‘(ii) CERTIFICATION.—The require- 6 ment of this clause is satisfied if the Gov- 7 ernor of the State certifies to the Secretary 8 of Labor that there is adequate housing 9 available in the area of intended employ- 10 ment for migrant farm workers and H–2A 11 workers who are seeking temporary hous- 12 ing while employed in agricultural work. 13 Such certification shall expire after 3 years 14 unless renewed by the Governor of the 15 State. 16 ‘‘(iii) AMOUNT OF ALLOWANCE.— 17 ‘‘(I) NONMETROPOLITAN COUN- 18 TIES.—If the place of employment of 19 the workers provided an allowance 20 under this subparagraph is a non- 21 metropolitan county, the amount of 22 the housing allowance under this sub- 23 paragraph shall be equal to the state- 24 wide average fair market rental for 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00148 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 149 •S 1258 IS existing housing for nonmetropolitan 1 counties for the State, as established 2 by the Secretary of Housing and 3 Urban Development pursuant to sec- 4 tion 8(c) of the United States Hous- 5 ing Act of 1937 (42 U.S.C. 1437f(c)), 6 based on a 2-bedroom dwelling unit 7 and an assumption of 2 persons per 8 bedroom. 9 ‘‘(II) METROPOLITAN COUN- 10 TIES.—If the place of employment of 11 the workers provided an allowance 12 under this paragraph is in a metro- 13 politan county, the amount of the 14 housing allowance under this subpara- 15 graph shall be equal to the statewide 16 average fair market rental for existing 17 housing for metropolitan counties for 18 the State, as established by the Sec- 19 retary of Housing and Urban Devel- 20 opment pursuant to section 8(c) of 21 the United States Housing Act of 22 1937 (42 U.S.C. 1437f(c)), based on 23 a 2-bedroom dwelling unit and an as- 24 sumption of 2 persons per bedroom. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00149 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 150 •S 1258 IS ‘‘(2) REIMBURSEMENT OF TRANSPORTATION.— 1 ‘‘(A) TO PLACE OF EMPLOYMENT.—A 2 worker who completes 50 percent of the period 3 of employment of the job opportunity for which 4 the worker was hired shall be reimbursed by the 5 employer for the cost of the worker’s transpor- 6 tation and subsistence from the place from 7 which the worker came to work for the em- 8 ployer (or place of last employment, if the 9 worker traveled from such place) to the place of 10 employment. 11 ‘‘(B) FROM PLACE OF EMPLOYMENT.—A 12 worker who completes the period of employment 13 for the job opportunity involved shall be reim- 14 bursed by the employer for the cost of the 15 worker‘s transportation and subsistence from 16 the place of employment to the place from 17 which the worker, disregarding intervening em- 18 ployment, came to work for the employer, or to 19 the place of next employment, if the worker has 20 contracted with a subsequent employer who has 21 not agreed to provide or pay for the worker’s 22 transportation and subsistence to such subse- 23 quent employer’s place of employment. 24 ‘‘(C) LIMITATION.— 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00150 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 151 •S 1258 IS ‘‘(i) AMOUNT OF REIMBURSEMENT.— 1 Except as provided in clause (ii), the 2 amount of reimbursement provided under 3 subparagraph (A) or (B) to a worker or 4 alien shall not exceed the lesser of— 5 ‘‘(I) the actual cost to the worker 6 or alien of the transportation and sub- 7 sistence involved; or 8 ‘‘(II) the most economical and 9 reasonable common carrier transpor- 10 tation charges and subsistence costs 11 for the distance involved. 12 ‘‘(ii) DISTANCE TRAVELED.—No reim- 13 bursement under subparagraph (A) or (B) 14 shall be required if the distance traveled is 15 100 miles or less, or the worker is not re- 16 siding in employer-provided housing or 17 housing secured through an allowance as 18 provided in paragraph (1)(G). 19 ‘‘(D) EARLY TERMINATION.—If the worker 20 is laid off or employment is terminated for con- 21 tract impossibility (as described in paragraph 22 (4)(D)) before the anticipated ending date of 23 employment, the employer shall provide the 24 transportation and subsistence required by sub- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00151 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 152 •S 1258 IS paragraph (B) and, notwithstanding whether 1 the worker has completed 50 percent of the pe- 2 riod of employment, shall provide the transpor- 3 tation reimbursement required by subparagraph 4 (A). 5 ‘‘(E) TRANSPORTATION BETWEEN LIVING 6 QUARTERS AND WORKSITE.—The employer 7 shall provide transportation between the work- 8 er’s living quarters and the employer’s worksite 9 without cost to the worker, and such transpor- 10 tation will be in accordance with applicable laws 11 and regulations. 12 ‘‘(3) REQUIRED WAGES.— 13 ‘‘(A) IN GENERAL.—An employer applying 14 for workers under section 218(a) shall offer to 15 pay, and shall pay, all workers in the occupa- 16 tion for which the employer has applied for 17 workers, not less (and is not required to pay 18 more) than the greater of the prevailing wage 19 in the occupation in the area of intended em- 20 ployment or the adverse effect wage rate. No 21 worker shall be paid less than the greater of the 22 hourly wage prescribed under section 6(a)(1) of 23 the Fair Labor Standards Act of 1938 (29 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00152 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 153 •S 1258 IS U.S.C. 206(a)(1)) or the applicable State min- 1 imum wage. 2 ‘‘(B) LIMITATION.—Effective on the date 3 of the enactment of the Comprehensive Immi- 4 gration Reform Act of 2011 and continuing for 5 3 years thereafter, no adverse effect wage rate 6 for a State may be more than the adverse effect 7 wage rate for that State in effect on January 8 1, 2011, as established by section 655.107 of 9 title 20, Code of Federal Regulations. 10 ‘‘(C) REQUIRED WAGES AFTER 3-YEAR 11 FREEZE.— 12 ‘‘(i) FIRST ADJUSTMENT.—If Con- 13 gress does not set a new wage standard 14 applicable to this section before the first 15 March 1 that is not less than 3 years after 16 the date of the enactment of this section, 17 the adverse effect wage rate for each State 18 beginning on such March 1 shall be the 19 wage rate that would have resulted if the 20 adverse effect wage rate in effect on Janu- 21 ary 1, 2011, had been annually adjusted, 22 beginning on March 1, 2014, by the lesser 23 of— 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00153 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 154 •S 1258 IS ‘‘(I) the 12-month percentage 1 change in the Consumer Price Index 2 for All Urban Consumers between De- 3 cember of the second preceding year 4 and December of the preceding year; 5 and 6 ‘‘(II) 4 percent. 7 ‘‘(ii) SUBSEQUENT ANNUAL ADJUST- 8 MENTS.—Beginning on the first March 1 9 that is not less than 4 years after the date 10 of the enactment of this section, and each 11 March 1 thereafter, the adverse effect 12 wage rate then in effect for each State 13 shall be adjusted by the lesser of— 14 ‘‘(I) the 12-month percentage 15 change in the Consumer Price Index 16 for All Urban Consumers between De- 17 cember of the second preceding year 18 and December of the preceding year; 19 and 20 ‘‘(II) 4 percent. 21 ‘‘(D) DEDUCTIONS.—The employer shall 22 make only those deductions from the worker‘s 23 wages that are authorized by law or are reason- 24 able and customary in the occupation and area 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00154 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 155 •S 1258 IS of employment. The job offer shall specify all 1 deductions not required by law which the em- 2 ployer will make from the worker’s wages. 3 ‘‘(E) FREQUENCY OF PAY.—The employer 4 shall pay the worker not less frequently than 5 twice monthly, or in accordance with the pre- 6 vailing practice in the area of employment, 7 whichever is more frequent. 8 ‘‘(F) HOURS AND EARNINGS STATE- 9 MENTS.—The employer shall furnish to the 10 worker, on or before each payday, in 1 or more 11 written statements— 12 ‘‘(i) the worker’s total earnings for 13 the pay period; 14 ‘‘(ii) the worker’s hourly rate of pay, 15 piece rate of pay, or both; 16 ‘‘(iii) the hours of employment which 17 have been offered to the worker (broken 18 out by hours offered in accordance with 19 and over and above the 3⁄4 guarantee de- 20 scribed in paragraph (4); 21 ‘‘(iv) the hours actually worked by the 22 worker; 23 ‘‘(v) an itemization of the deductions 24 made from the worker’s wages; and 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00155 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 156 •S 1258 IS ‘‘(vi) if piece rates of pay are used, 1 the units produced daily. 2 ‘‘(G) REPORT ON WAGE PROTECTIONS.— 3 Not later than December 31, 2012, the Comp- 4 troller General of the United States shall sub- 5 mit a report to the Secretary of Labor, the 6 Committee on the Judiciary of the Senate, and 7 the Committee on the Judiciary of the House of 8 Representatives that addresses— 9 ‘‘(i) whether the employment of H–2A 10 or unauthorized aliens in the United States 11 agricultural workforce has depressed 12 United States farm worker wages below 13 the levels that would otherwise have pre- 14 vailed if alien farm workers had not been 15 employed in the United States; 16 ‘‘(ii) whether an adverse effect wage 17 rate is necessary to prevent wages of 18 United States farm workers in occupations 19 in which H–2A workers are employed from 20 falling below the wage levels that would 21 have prevailed in the absence of the em- 22 ployment of H–2A workers in those occu- 23 pations; 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00156 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 157 •S 1258 IS ‘‘(iii) whether alternative wage stand- 1 ards, such as a prevailing wage standard, 2 would be sufficient to prevent wages in oc- 3 cupations in which H–2A workers are em- 4 ployed from falling below the wage level 5 that would have prevailed in the absence of 6 H–2A employment; 7 ‘‘(iv) whether any changes are war- 8 ranted in the current methodologies for 9 calculating the adverse effect wage rate 10 and the prevailing wage; and 11 ‘‘(v) recommendations for future wage 12 protection under this section. 13 ‘‘(H) COMMISSION ON WAGE STAND- 14 ARDS.— 15 ‘‘(i) ESTABLISHMENT.—There is es- 16 tablished the Commission on Agricultural 17 Wage Standards under the H–2A program 18 (in this subparagraph referred to as the 19 ‘Commission’). 20 ‘‘(ii) COMPOSITION.—The Commission 21 shall consist of 10 members as follows: 22 ‘‘(I) Four representatives of agri- 23 cultural employers and 1 representa- 24 tive of the Department of Agriculture, 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00157 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 158 •S 1258 IS each appointed by the Secretary of 1 Agriculture. 2 ‘‘(II) Four representatives of ag- 3 ricultural workers and 1 representa- 4 tive of the Department of Labor, each 5 appointed by the Secretary of Labor. 6 ‘‘(iii) FUNCTIONS.—The Commission 7 shall conduct a study that shall address— 8 ‘‘(I) whether the employment of 9 H–2A or unauthorized aliens in the 10 United States agricultural workforce 11 has depressed United States farm 12 worker wages below the levels that 13 would otherwise have prevailed if alien 14 farm workers had not been employed 15 in the United States; 16 ‘‘(II) whether an adverse effect 17 wage rate is necessary to prevent 18 wages of United States farm workers 19 in occupations in which H–2A work- 20 ers are employed from falling below 21 the wage levels that would have pre- 22 vailed in the absence of the employ- 23 ment of H–2A workers in those occu- 24 pations; 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00158 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 159 •S 1258 IS ‘‘(III) whether alternative wage 1 standards, such as a prevailing wage 2 standard, would be sufficient to pre- 3 vent wages in occupations in which 4 H–2A workers are employed from fall- 5 ing below the wage level that would 6 have prevailed in the absence of H–2A 7 employment; 8 ‘‘(IV) whether any changes are 9 warranted in the current methodolo- 10 gies for calculating the adverse effect 11 wage rate and the prevailing wage 12 rate; and 13 ‘‘(V) recommendations for future 14 wage protection under this section. 15 ‘‘(iv) FINAL REPORT.—Not later than 16 December 31, 2012, the Commission shall 17 submit a report to the Congress setting 18 forth the findings of the study conducted 19 under clause (iii). 20 ‘‘(v) TERMINATION DATE.—The Com- 21 mission shall terminate upon submitting 22 its final report. 23 ‘‘(4) GUARANTEE OF EMPLOYMENT.— 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00159 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 160 •S 1258 IS ‘‘(A) OFFER TO WORKER.—The employer 1 shall guarantee to offer the worker employment 2 for the hourly equivalent of at least 3⁄4 of the 3 work days of the total period of employment, 4 beginning with the first work day after the ar- 5 rival of the worker at the place of employment 6 and ending on the expiration date specified in 7 the job offer. For purposes of this subpara- 8 graph, the hourly equivalent means the number 9 of hours in the work days as stated in the job 10 offer and shall exclude the worker’s Sabbath 11 and Federal holidays. If the employer affords 12 the United States or H–2A worker less employ- 13 ment than that required under this paragraph, 14 the employer shall pay such worker the amount 15 which the worker would have earned had the 16 worker, in fact, worked for the guaranteed 17 number of hours. 18 ‘‘(B) FAILURE TO WORK.—Any hours 19 which the worker fails to work, up to a max- 20 imum of the number of hours specified in the 21 job offer for a work day, when the worker has 22 been offered an opportunity to do so, and all 23 hours of work actually performed (including vol- 24 untary work in excess of the number of hours 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00160 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 161 •S 1258 IS specified in the job offer in a work day, on the 1 worker’s Sabbath, or on Federal holidays) may 2 be counted by the employer in calculating 3 whether the period of guaranteed employment 4 has been met. 5 ‘‘(C) ABANDONMENT OF EMPLOYMENT, 6 TERMINATION FOR CAUSE.—If the worker vol- 7 untarily abandons employment before the end 8 of the contract period, or is terminated for 9 cause, the worker is not entitled to the 3⁄4 guar- 10 antee described in subparagraph (A). 11 ‘‘(D) CONTRACT IMPOSSIBILITY.—If, be- 12 fore the expiration of the period of employment 13 specified in the job offer, the services of the 14 worker are no longer required for reasons be- 15 yond the control of the employer due to any 16 form of natural disaster, including a flood, hur- 17 ricane, freeze, earthquake, fire, drought, plant 18 or animal disease or pest infestation, or regu- 19 latory drought, before the guarantee in sub- 20 paragraph (A) is fulfilled, the employer may 21 terminate the worker’s employment. In the 22 event of such termination, the employer shall 23 fulfill the employment guarantee in subpara- 24 graph (A) for the work days that have elapsed 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00161 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 162 •S 1258 IS from the first work day after the arrival of the 1 worker to the termination of employment. In 2 such cases, the employer will make efforts to 3 transfer the United States worker to other com- 4 parable employment acceptable to the worker. If 5 such transfer is not effected, the employer shall 6 provide the return transportation required in 7 paragraph (2)(D). 8 ‘‘(5) MOTOR VEHICLE SAFETY.— 9 ‘‘(A) MODE OF TRANSPORTATION SUBJECT 10 TO COVERAGE.— 11 ‘‘(i) IN GENERAL.—Except as pro- 12 vided in clauses (iii) and (iv), this sub- 13 section applies to any H–2A employer that 14 uses or causes to be used any vehicle to 15 transport an H–2A worker within the 16 United States. 17 ‘‘(ii) DEFINED TERM.—In this para- 18 graph, the term ‘uses or causes to be 19 used’— 20 ‘‘(I) applies only to transpor- 21 tation provided by an H–2A employer 22 to an H–2A worker, or by a farm 23 labor contractor to an H–2A worker 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00162 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 163 •S 1258 IS at the request or direction of an H– 1 2A employer; and 2 ‘‘(II) does not apply to— 3 ‘‘(aa) transportation pro- 4 vided, or transportation arrange- 5 ments made, by an H–2A work- 6 er, unless the employer specifi- 7 cally requested or arranged such 8 transportation; or 9 ‘‘(bb) car pooling arrange- 10 ments made by H–2A workers 11 themselves, using 1 of the work- 12 ers’ own vehicles, unless specifi- 13 cally requested by the employer 14 directly or through a farm labor 15 contractor. 16 ‘‘(iii) CLARIFICATION.—Providing a 17 job offer to an H–2A worker that causes 18 the worker to travel to or from the place 19 of employment, or the payment or reim- 20 bursement of the transportation costs of 21 an H–2A worker by an H–2A employer, 22 shall not constitute an arrangement of, or 23 participation in, such transportation. 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00163 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 164 •S 1258 IS ‘‘(iv) AGRICULTURAL MACHINERY AND 1 EQUIPMENT EXCLUDED.—This subsection 2 does not apply to the transportation of an 3 H–2A worker on a tractor, combine, har- 4 vester, picker, or other similar machinery 5 or equipment while such worker is actually 6 engaged in the planting, cultivating, or 7 harvesting of agricultural commodities or 8 the care of livestock or poultry or engaged 9 in transportation incidental thereto. 10 ‘‘(v) COMMON CARRIERS EX- 11 CLUDED.—This subsection does not apply 12 to common carrier motor vehicle transpor- 13 tation in which the provider holds itself out 14 to the general public as engaging in the 15 transportation of passengers for hire and 16 holds a valid certification of authorization 17 for such purposes from an appropriate 18 Federal, State, or local agency. 19 ‘‘(B) APPLICABILITY OF STANDARDS, LI- 20 CENSING, AND INSURANCE REQUIREMENTS.— 21 ‘‘(i) IN GENERAL.—When using, or 22 causing to be used, any vehicle for the pur- 23 pose of providing transportation to which 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00164 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 165 •S 1258 IS this subparagraph applies, each employer 1 shall— 2 ‘‘(I) ensure that each such vehi- 3 cle conforms to the standards pre- 4 scribed by the Secretary of Labor 5 under section 401(b) of the Migrant 6 and Seasonal Agricultural Worker 7 Protection Act (29 U.S.C. 1841(b)) 8 and other applicable Federal and 9 State safety standards; 10 ‘‘(II) ensure that each driver has 11 a valid and appropriate license, as 12 provided by State law, to operate the 13 vehicle; and 14 ‘‘(III) have an insurance policy 15 or a liability bond that is in effect 16 which insures the employer against li- 17 ability for damage to persons or prop- 18 erty arising from the ownership, oper- 19 ation, or causing to be operated, of 20 any vehicle used to transport any H– 21 2A worker. 22 ‘‘(ii) AMOUNT OF INSURANCE RE- 23 QUIRED.—The level of insurance required 24 shall be determined by the Secretary of 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00165 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 166 •S 1258 IS Labor pursuant to regulations to be issued 1 under this subsection. 2 ‘‘(iii) EFFECT OF WORKERS’ COM- 3 PENSATION COVERAGE.—If the employer 4 of any H–2A worker provides workers’ 5 compensation coverage for such worker in 6 the case of bodily injury or death as pro- 7 vided by State law, the following adjust- 8 ments in the requirements of subparagraph 9 (B)(i)(III) relating to having an insurance 10 policy or liability bond apply: 11 ‘‘(I) No insurance policy or liabil- 12 ity bond shall be required of the em- 13 ployer, if such workers are trans- 14 ported only under circumstances for 15 which there is coverage under such 16 State law. 17 ‘‘(II) An insurance policy or li- 18 ability bond shall be required of the 19 employer for circumstances under 20 which coverage for the transportation 21 of such workers is not provided under 22 such State law. 23 ‘‘(c) COMPLIANCE WITH LABOR LAWS.—An em- 24 ployer shall assure that, except as otherwise provided in 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00166 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 167 •S 1258 IS this section, the employer will comply with all applicable 1 Federal, State, and local labor laws, including laws affect- 2 ing migrant and seasonal agricultural workers, with re- 3 spect to all United States workers and alien workers em- 4 ployed by the employer, except that a violation of this as- 5 surance shall not constitute a violation of the Migrant and 6 Seasonal Agricultural Worker Protection Act (29 U.S.C. 7 1801 et seq.). 8 ‘‘(d) COPY OF JOB OFFER.—The employer shall pro- 9 vide to the worker, not later than the day the work com- 10 mences, a copy of the employer’s application and job offer 11 described in section 218(a), or, if the employer will require 12 the worker to enter into a separate employment contract 13 covering the employment in question, such separate em- 14 ployment contract. 15 ‘‘(e) RANGE PRODUCTION OF LIVESTOCK.—Nothing 16 in this section, section 218, or section 218B shall preclude 17 the Secretary of Labor and the Secretary from continuing 18 to apply special procedures and requirements to the ad- 19 mission and employment of aliens in occupations involving 20 the range production of livestock. 21 ‘‘SEC. 218B. PROCEDURE FOR ADMISSION AND EXTENSION 22 OF STAY OF H–2A WORKERS. 23 ‘‘(a) PETITIONING FOR ADMISSION.—An employer, 24 or an association acting as an agent or joint employer for 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00167 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 168 •S 1258 IS its members, that seeks the admission into the United 1 States of an H–2A worker may file a petition with the 2 Secretary. The petition shall be accompanied by an accept- 3 ed and currently valid certification provided by the Sec- 4 retary of Labor under section 218(e)(2)(B) covering the 5 petitioner. 6 ‘‘(b) EXPEDITED ADJUDICATION BY THE SEC- 7 RETARY.—The Secretary shall establish a procedure for 8 expedited adjudication of petitions filed under subsection 9 (a) and within 7 working days shall, by fax, cable, or other 10 means assuring expedited delivery, transmit a copy of no- 11 tice of action on the petition to the petitioner and, in the 12 case of approved petitions, to the appropriate immigration 13 officer at the port of entry or United States consulate (as 14 the case may be) where the petitioner has indicated that 15 the alien beneficiary (or beneficiaries) will apply for a visa 16 or admission to the United States. 17 ‘‘(c) CRITERIA FOR ADMISSIBILITY.— 18 ‘‘(1) IN GENERAL.—An H–2A worker shall be 19 considered admissible to the United States if the 20 alien— 21 ‘‘(A) is otherwise admissible under this 22 section, section 218, and section 218A; and 23 ‘‘(B) is not ineligible under paragraph (2). 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00168 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 169 •S 1258 IS ‘‘(2) DISQUALIFICATION.—An alien shall be 1 considered inadmissible to the United States and in- 2 eligible for nonimmigrant status under section 3 101(a)(15)(H)(ii)(a) if the alien has, at any time 4 during the past 5 years— 5 ‘‘(A) violated a material provision of this 6 section, including the requirement to promptly 7 depart the United States when the alien’s au- 8 thorized period of admission under this section 9 has expired; or 10 ‘‘(B) otherwise violated a term or condition 11 of admission into the United States as a non- 12 immigrant, including overstaying the period of 13 authorized admission as such a nonimmigrant. 14 ‘‘(3) WAIVER OF INELIGIBILITY FOR UNLAW- 15 FUL PRESENCE.— 16 ‘‘(A) IN GENERAL.—An alien who has not 17 previously been admitted into the United States 18 pursuant to this section, and who is otherwise 19 eligible for admission in accordance with para- 20 graphs (1) and (2), shall not be deemed inad- 21 missible by virtue of section 212(a)(9)(B). If an 22 alien described in the preceding sentence is 23 present in the United States, the alien may 24 apply from abroad for H–2A worker status, but 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00169 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 170 •S 1258 IS may not be granted that status in the United 1 States. 2 ‘‘(B) MAINTENANCE OF WAIVER.—An 3 alien provided an initial waiver of ineligibility 4 pursuant to subparagraph (A) shall remain eli- 5 gible for such waiver unless the alien violates 6 the terms of this section or again becomes ineli- 7 gible under section 212(a)(9)(B) by virtue of 8 unlawful presence in the United States after 9 the date of the initial waiver of ineligibility pur- 10 suant to subparagraph (A). 11 ‘‘(d) PERIOD OF ADMISSION.— 12 ‘‘(1) IN GENERAL.—The alien shall be admitted 13 for the period of employment in the application cer- 14 tified by the Secretary of Labor pursuant to section 15 218(e)(2)(B), not to exceed 10 months, supple- 16 mented by a period of not more than 1 week before 17 the beginning of the period of employment for the 18 purpose of travel to the worksite and a period of 14 19 days following the period of employment for the pur- 20 pose of departure or extension based on a subse- 21 quent offer of employment, except that— 22 ‘‘(A) the alien is not authorized to be em- 23 ployed during such 14-day period except in the 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00170 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 171 •S 1258 IS employment for which the alien was previously 1 authorized; and 2 ‘‘(B) the total period of employment, in- 3 cluding such 14-day period, may not exceed 10 4 months. 5 ‘‘(2) CONSTRUCTION.—Nothing in this sub- 6 section may be construed to limit the authority of 7 the Secretary to extend the stay of the alien under 8 any other provision of this Act. 9 ‘‘(e) ABANDONMENT OF EMPLOYMENT.— 10 ‘‘(1) IN GENERAL.—An alien admitted or pro- 11 vided status under section 101(a)(15)(H)(ii)(a) who 12 abandons the employment which was the basis for 13 such admission or status shall be considered to have 14 failed to maintain nonimmigrant status as an H–2A 15 worker and shall depart the United States or be sub- 16 ject to removal under section 237(a)(1)(C)(i). 17 ‘‘(2) REPORT BY EMPLOYER.—The employer, or 18 association acting as agent for the employer, shall 19 notify the Secretary not later than 7 days after an 20 H–2A worker prematurely abandons employment. 21 ‘‘(3) REMOVAL BY THE SECRETARY.—The Sec- 22 retary shall promptly remove from the United States 23 any H–2A worker who violates any term or condi- 24 tion of the worker’s nonimmigrant status. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00171 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 172 •S 1258 IS ‘‘(4) VOLUNTARY TERMINATION.—Notwith- 1 standing paragraph (1), an alien may voluntarily 2 terminate his or her employment if the alien prompt- 3 ly departs the United States upon termination of 4 such employment. 5 ‘‘(f) REPLACEMENT OF ALIEN.— 6 ‘‘(1) IN GENERAL.—Upon presentation of the 7 notice to the Secretary required by subsection (e)(2), 8 the Secretary of State shall promptly issue a visa to, 9 and the Secretary shall admit into the United 10 States, an eligible alien designated by the employer 11 to replace an H–2A worker— 12 ‘‘(A) who abandons or prematurely termi- 13 nates employment; or 14 ‘‘(B) whose employment is terminated 15 after a United States worker is employed pur- 16 suant to section 218(b)(2)(H)(iii), if the United 17 States worker voluntarily departs before the 18 end of the period of intended employment or if 19 the employment termination is for a lawful job- 20 related reason. 21 ‘‘(2) CONSTRUCTION.—Nothing in this sub- 22 section may be construed to limit any preference re- 23 quired to be accorded United States workers under 24 any other provision of this Act. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00172 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 173 •S 1258 IS ‘‘(g) IDENTIFICATION DOCUMENT.— 1 ‘‘(1) IN GENERAL.—Each alien authorized to be 2 admitted under section 101(a)(15)(H)(ii)(a) shall be 3 provided an identification and employment eligibility 4 document to verify eligibility for employment in the 5 United States and verify the alien’s identity. 6 ‘‘(2) REQUIREMENTS.—No identification and 7 employment eligibility document may be issued 8 which does not meet the following requirements: 9 ‘‘(A) The document shall be capable of re- 10 liably determining whether— 11 ‘‘(i) the individual with the identifica- 12 tion and employment eligibility document 13 whose eligibility is being verified is in fact 14 eligible for employment; 15 ‘‘(ii) the individual whose eligibility is 16 being verified is claiming the identity of 17 another person; and 18 ‘‘(iii) the individual whose eligibility is 19 being verified is authorized to be admitted 20 into, and employed in, the United States 21 as an H–2A worker. 22 ‘‘(B) The document shall be in a form that 23 is resistant to counterfeiting and to tampering. 24 ‘‘(C) The document shall— 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00173 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 174 •S 1258 IS ‘‘(i) be compatible with other data- 1 bases of the Secretary for the purpose of 2 excluding aliens from benefits for which 3 they are not eligible and determining 4 whether the alien is unlawfully present in 5 the United States; and 6 ‘‘(ii) be compatible with law enforce- 7 ment databases to determine if the alien 8 has been convicted of criminal offenses. 9 ‘‘(h) EXTENSION OF STAY OF H–2A ALIENS IN THE 10 UNITED STATES.— 11 ‘‘(1) EXTENSION OF STAY.—If an employer 12 seeks approval to employ an H–2A alien who is law- 13 fully present in the United States, the petition filed 14 by the employer or an association pursuant to sub- 15 section (a), shall request an extension of the alien’s 16 stay and a change in the alien’s employment. 17 ‘‘(2) LIMITATION ON FILING A PETITION FOR 18 EXTENSION OF STAY.—A petition may not be filed 19 for an extension of an alien’s stay— 20 ‘‘(A) for a period of more than 10 months; 21 or 22 ‘‘(B) to a date that is more than 3 years 23 after the date of the alien’s last admission to 24 the United States under this section. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00174 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 175 •S 1258 IS ‘‘(3) WORK AUTHORIZATION UPON FILING A 1 PETITION FOR EXTENSION OF STAY.— 2 ‘‘(A) IN GENERAL.—An alien who is law- 3 fully present in the United States may com- 4 mence the employment described in a petition 5 under paragraph (1) on the date on which the 6 petition is filed. 7 ‘‘(B) DEFINITION.—In subparagraph (A), 8 the term ‘file’ means sending the petition by 9 certified mail via the United States Postal Serv- 10 ice, return receipt requested, or delivered by 11 guaranteed commercial delivery which will pro- 12 vide the employer with a documented acknowl- 13 edgment of the date of receipt of the petition. 14 ‘‘(C) HANDLING OF PETITION.—The em- 15 ployer shall provide a copy of the employer’s pe- 16 tition to the alien, who shall keep the petition 17 with the alien’s identification and employment 18 eligibility document as evidence that the peti- 19 tion has been filed and that the alien is author- 20 ized to work in the United States. 21 ‘‘(D) APPROVAL OF PETITION.—Upon ap- 22 proval of a petition for an extension of stay or 23 change in the alien’s authorized employment, 24 the Secretary shall provide a new or updated 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00175 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 176 •S 1258 IS employment eligibility document to the alien in- 1 dicating the new validity date, after which the 2 alien is not required to retain a copy of the pe- 3 tition. 4 ‘‘(4) LIMITATION ON EMPLOYMENT AUTHORIZA- 5 TION OF ALIENS WITHOUT VALID IDENTIFICATION 6 AND EMPLOYMENT ELIGIBILITY DOCUMENT.—An ex- 7 pired identification and employment eligibility docu- 8 ment, together with a copy of a petition for exten- 9 sion of stay or change in the alien’s authorized em- 10 ployment that complies with the requirements of 11 paragraph (1), shall constitute a valid work author- 12 ization document for a period of not more than 60 13 days beginning on the date on which such petition 14 is filed, after which time only a currently valid iden- 15 tification and employment eligibility document shall 16 be acceptable. 17 ‘‘(5) LIMITATION ON AN INDIVIDUAL’S STAY IN 18 STATUS.— 19 ‘‘(A) MAXIMUM PERIOD.—The maximum 20 continuous period of authorized status as an 21 H–2A worker (including any extensions) is 3 22 years. 23 ‘‘(B) REQUIREMENT TO REMAIN OUTSIDE 24 THE UNITED STATES.— 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00176 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 177 •S 1258 IS ‘‘(i) IN GENERAL.—Subject to clause 1 (ii), in the case of an alien outside the 2 United States whose period of authorized 3 status as an H–2A worker (including any 4 extensions) has expired, the alien may not 5 again apply for admission to the United 6 States as an H–2A worker unless the alien 7 has remained outside the United States for 8 a continuous period equal to at least 1⁄5 9 the duration of the alien’s previous period 10 of authorized status as an H–2A worker 11 (including any extensions). 12 ‘‘(ii) EXCEPTION.—Clause (i) shall 13 not apply in the case of an alien— 14 ‘‘(I) whose period of authorized 15 status as an H–2A worker (including 16 any extensions) was for a period of 17 not more than 10 months; and 18 ‘‘(II) has been outside the United 19 States for at least 2 months during 20 the 12-month period immediately pre- 21 ceding the date on which the alien is 22 reapplying for admission to the 23 United States as an H–2A worker. 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00177 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 178 •S 1258 IS ‘‘(i) SPECIAL RULES FOR ALIENS EMPLOYED AS 1 SHEEPHERDERS, GOAT HERDERS, OR DAIRY WORK- 2 ERS.—Notwithstanding any provision of the Comprehen- 3 sive Immigration Reform Act of 2011, an alien admitted 4 under section 101(a)(15)(H)(ii)(a) for employment as a 5 sheepherder, goat herder, or dairy worker— 6 ‘‘(1) may be admitted for an initial period of 12 7 months; 8 ‘‘(2) subject to subsection (j)(5), may have such 9 initial period of admission extended for a period of 10 up to 3 years; and 11 ‘‘(3) shall not be subject to the requirements of 12 subsection (h)(5) (relating to periods of absence 13 from the United States). 14 ‘‘(j) ADJUSTMENT TO LAWFUL PERMANENT RESI- 15 DENT STATUS FOR ALIENS EMPLOYED AS SHEEP- 16 HERDERS, GOAT HERDERS, OR DAIRY WORKERS.— 17 ‘‘(1) ELIGIBLE ALIEN.—In this subsection, the 18 term ‘eligible alien’ means an alien— 19 ‘‘(A) having nonimmigrant status under 20 section 101(a)(15)(H)(ii)(a) based on employ- 21 ment as a sheepherder, goat herder, or dairy 22 worker; 23 ‘‘(B) who has maintained such non- 24 immigrant status in the United States for a cu- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00178 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 179 •S 1258 IS mulative total of 36 months (excluding any pe- 1 riod of absence from the United States); and 2 ‘‘(C) who is seeking to receive an immi- 3 grant visa under section 203(b)(3)(A)(iii). 4 ‘‘(2) CLASSIFICATION PETITION.—In the case 5 of an eligible alien, the petition under section 204 6 for classification under section 203(b)(3)(A)(iii) may 7 be filed by— 8 ‘‘(A) the alien’s employer on behalf of the 9 eligible alien; or 10 ‘‘(B) the eligible alien. 11 ‘‘(3) NO LABOR CERTIFICATION REQUIRED.— 12 Notwithstanding section 203(b)(3)(C), no deter- 13 mination under section 212(a)(5)(A) is required with 14 respect to an immigrant visa described in paragraph 15 (1)(C) for an eligible alien. 16 ‘‘(4) EFFECT OF PETITION.—The filing of a pe- 17 tition described in paragraph (2) or an application 18 for adjustment of status based on the approval of 19 such a petition shall not constitute evidence of an 20 alien’s ineligibility for nonimmigrant status under 21 section 101(a)(15)(H)(ii)(a). 22 ‘‘(5) EXTENSION OF STAY.—The Secretary 23 shall extend the stay of an eligible alien having a 24 pending or approved classification petition described 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00179 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 180 •S 1258 IS in paragraph (2) in 1-year increments until a final 1 determination is made on the alien’s eligibility for 2 adjustment of status to that of an alien lawfully ad- 3 mitted for permanent residence. 4 ‘‘(6) CONSTRUCTION.—Nothing in this sub- 5 section shall be construed to prevent an eligible alien 6 from seeking adjustment of status in accordance 7 with any other provision of law. 8 ‘‘SEC. 218C. WORKER PROTECTIONS AND LABOR STAND- 9 ARDS ENFORCEMENT. 10 ‘‘(a) ENFORCEMENT AUTHORITY.— 11 ‘‘(1) INVESTIGATION OF COMPLAINTS.— 12 ‘‘(A) AGGRIEVED PERSON OR THIRD-PARTY 13 COMPLAINTS.—The Secretary of Labor shall es- 14 tablish a process for the receipt, investigation, 15 and disposition of complaints respecting a 16 petitioner‘s failure to meet a condition specified 17 in section 218(b), or an employer’s misrepre- 18 sentation of material facts in an application 19 under section 218(a). Complaints may be filed 20 by any aggrieved person or organization (in- 21 cluding bargaining representatives). No inves- 22 tigation or hearing shall be conducted on a 23 complaint concerning such a failure or mis- 24 representation unless the complaint was filed 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00180 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 181 •S 1258 IS not later than 12 months after the date of the 1 failure, or misrepresentation, respectively. The 2 Secretary of Labor shall conduct an investiga- 3 tion under this subparagraph if there is reason- 4 able cause to believe that such a failure or mis- 5 representation has occurred. 6 ‘‘(B) DETERMINATION ON COMPLAINT.— 7 Not later than 30 days after the date on which 8 a complaint is filed under subparagraph (A), 9 the Secretary of Labor shall determine whether 10 or not a reasonable basis exists to make a find- 11 ing described in subparagraph (C), (D), (E), or 12 (G). If the Secretary of Labor determines that 13 such a reasonable basis exists, the Secretary of 14 Labor shall provide for notice of such deter- 15 mination to the interested parties and an oppor- 16 tunity for a hearing on the complaint, in ac- 17 cordance with section 556 of title 5, United 18 States Code, not later than 60 days after the 19 date of the determination. If such a hearing is 20 requested, the Secretary of Labor shall make a 21 finding concerning the matter not later than 60 22 days after the date of the hearing. In the case 23 of similar complaints regarding the same appli- 24 cant, the Secretary of Labor may consolidate 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00181 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 182 •S 1258 IS the hearings under this subparagraph on such 1 complaints. 2 ‘‘(C) FAILURES TO MEET CONDITIONS.—If 3 the Secretary of Labor finds, after notice and 4 opportunity for a hearing, a failure to meet a 5 condition of paragraph (1)(A), (1)(B), (1)(D), 6 (1)(F), (2)(A), (2)(B), or (2)(G) of section 7 218(b), a substantial failure to meet a condition 8 of paragraph (1)(C), (1)(E), (2)(C), (2)(D), 9 (2)(E), or (2)(H) of section 218(b), or a mate- 10 rial misrepresentation of fact in an application 11 under section 218(a)— 12 ‘‘(i) the Secretary of Labor shall no- 13 tify the Secretary of such finding and may, 14 in addition, impose such other administra- 15 tive remedies (including civil money pen- 16 alties in an amount not to exceed $1,000 17 per violation) as the Secretary of Labor 18 determines to be appropriate; and 19 ‘‘(ii) the Secretary may disqualify the 20 employer from the employment of aliens 21 described in section 101(a)(15)(H)(ii)(a) 22 for a period of 1 year. 23 ‘‘(D) WILLFUL FAILURES AND WILLFUL 24 MISREPRESENTATIONS.—If the Secretary of 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00182 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 183 •S 1258 IS Labor finds, after notice and opportunity for 1 hearing, a willful failure to meet a condition of 2 section 218(b), a willful misrepresentation of a 3 material fact in an application under section 4 218(a), or a violation of subsection (d)(1)— 5 ‘‘(i) the Secretary of Labor shall no- 6 tify the Secretary of such finding and may, 7 in addition, impose such other administra- 8 tive remedies (including civil money pen- 9 alties in an amount not to exceed $5,000 10 per violation) as the Secretary of Labor 11 determines to be appropriate; 12 ‘‘(ii) the Secretary of Labor may seek 13 appropriate legal or equitable relief to ef- 14 fectuate the purposes of subsection (d)(1); 15 and 16 ‘‘(iii) the Secretary may disqualify the 17 employer from the employment of H–2A 18 workers for a period of 2 years. 19 ‘‘(E) DISPLACEMENT OF UNITED STATES 20 WORKERS.—If the Secretary of Labor finds, 21 after notice and opportunity for a hearing, a 22 willful failure to meet a condition of section 23 218(b) or a willful misrepresentation of a mate- 24 rial fact in an application under section 218(a), 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00183 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 184 •S 1258 IS in the course of which failure or misrepresenta- 1 tion the employer displaced a United States 2 worker employed by the employer during the 3 period of employment on the employer’s appli- 4 cation under section 218(a) or during the pe- 5 riod of 30 days preceding such period of em- 6 ployment— 7 ‘‘(i) the Secretary of Labor shall no- 8 tify the Secretary of such finding and may, 9 in addition, impose such other administra- 10 tive remedies (including civil money pen- 11 alties in an amount not to exceed $15,000 12 per violation) as the Secretary of Labor 13 determines to be appropriate; and 14 ‘‘(ii) the Secretary may disqualify the 15 employer from the employment of H–2A 16 workers for a period of 3 years. 17 ‘‘(F) LIMITATIONS ON CIVIL MONEY PEN- 18 ALTIES.—The Secretary of Labor shall not im- 19 pose total civil money penalties with respect to 20 an application under section 218(a) in excess of 21 $90,000. 22 ‘‘(G) FAILURES TO PAY WAGES OR RE- 23 QUIRED BENEFITS.—If the Secretary of Labor 24 finds, after notice and opportunity for a hear- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00184 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 185 •S 1258 IS ing, that the employer has failed to pay the 1 wages, or provide the housing allowance, trans- 2 portation, subsistence reimbursement, or guar- 3 antee of employment, required under section 4 218A(b), the Secretary of Labor shall assess 5 payment of back wages, or other required bene- 6 fits, due any United States worker or H–2A 7 worker employed by the employer in the specific 8 employment in question. The back wages or 9 other required benefits under section 218A(b) 10 shall be equal to the difference between the 11 amount that should have been paid and the 12 amount that actually was paid to such worker. 13 ‘‘(2) CONSTRUCTION.—Nothing in this section 14 may be construed as limiting the authority of the 15 Secretary of Labor to conduct any compliance inves- 16 tigation under any other labor law, including any 17 law affecting migrant and seasonal agricultural 18 workers, or, in the absence of a complaint under this 19 section, section 218, or section 218A. 20 ‘‘(b) RIGHTS ENFORCEABLE BY PRIVATE RIGHT OF 21 ACTION.—H–2A workers may enforce, through the private 22 right of action provided in subsection (c), the following 23 rights: 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00185 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 186 •S 1258 IS ‘‘(1) The provision of housing or a housing al- 1 lowance as required under section 218A(b)(1). 2 ‘‘(2) The reimbursement of transportation as 3 required under section 218A(b)(2). 4 ‘‘(3) The payment of wages required under sec- 5 tion 218A(b)(3) when due. 6 ‘‘(4) The benefits and material terms and con- 7 ditions of employment expressly provided in the job 8 offer described in section 218(a)(2), not including 9 the assurance to comply with other Federal, State, 10 and local labor laws described in section 218A(c), 11 compliance with which shall be governed by the pro- 12 visions of such laws. 13 ‘‘(5) The guarantee of employment required 14 under section 218A(b)(4). 15 ‘‘(6) The motor vehicle safety requirements 16 under section 218A(b)(5). 17 ‘‘(7) The prohibition of discrimination under 18 subsection (d)(2). 19 ‘‘(c) PRIVATE RIGHT OF ACTION.— 20 ‘‘(1) MEDIATION.—Upon the filing of a com- 21 plaint by an H–2A worker aggrieved by a violation 22 of rights enforceable under subsection (b), and with- 23 in 60 days of the filing of proof of service of the 24 complaint, a party to the action may file a request 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00186 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 187 •S 1258 IS with the Federal Mediation and Conciliation Service 1 to assist the parties in reaching a satisfactory reso- 2 lution of all issues involving all parties to the dis- 3 pute. Upon a filing of such request and giving of no- 4 tice to the parties, the parties shall attempt medi- 5 ation within the period specified in subparagraph 6 (B). 7 ‘‘(A) MEDIATION SERVICES.—The Federal 8 Mediation and Conciliation Service shall be 9 available to assist in resolving disputes arising 10 under subsection (b) between H–2A workers 11 and agricultural employers without charge to 12 the parties. 13 ‘‘(B) 90-DAY LIMIT.—The Federal Medi- 14 ation and Conciliation Service may conduct me- 15 diation or other nonbinding dispute resolution 16 activities for a period not to exceed 90 days be- 17 ginning on the date on which the Federal Medi- 18 ation and Conciliation Service receives the re- 19 quest for assistance unless the parties agree to 20 an extension of this period of time. 21 ‘‘(C) AUTHORIZATION.— 22 ‘‘(i) IN GENERAL.—Subject to clause 23 (ii), there are authorized to be appro- 24 priated to the Federal Mediation and Con- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00187 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 188 •S 1258 IS ciliation Service $500,000 for each fiscal 1 year to carry out this section. 2 ‘‘(ii) MEDIATION.—Notwithstanding 3 any other provision of law, the Director of 4 the Federal Mediation and Conciliation 5 Service is authorized to conduct the medi- 6 ation or other dispute resolution activities 7 from any other appropriated funds avail- 8 able to the Director and to reimburse such 9 appropriated funds when the funds are ap- 10 propriated pursuant to this authorization, 11 such reimbursement to be credited to ap- 12 propriations currently available at the time 13 of receipt. 14 ‘‘(2) MAINTENANCE OF CIVIL ACTION IN DIS- 15 TRICT COURT BY AGGRIEVED PERSON.—An H–2A 16 worker aggrieved by a violation of rights enforceable 17 under subsection (b) by an agricultural employer or 18 other person may file suit in any district court of the 19 United States having jurisdiction over the parties, 20 without regard to the amount in controversy, with- 21 out regard to the citizenship of the parties, and 22 without regard to the exhaustion of any alternative 23 administrative remedies under this Act, not later 24 than 3 years after the date the violation occurs. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00188 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 189 •S 1258 IS ‘‘(3) ELECTION.—An H–2A worker who has 1 filed an administrative complaint with the Secretary 2 of Labor may not maintain a civil action under 3 paragraph (2) unless a complaint based on the same 4 violation filed with the Secretary of Labor under 5 subsection (a)(1) is withdrawn before the filing of 6 such action, in which case the rights and remedies 7 available under this subsection shall be exclusive. 8 ‘‘(4) PREEMPTION OF STATE CONTRACT 9 RIGHTS.—Nothing in this Act may be construed to 10 diminish the rights and remedies of an H–2A worker 11 under any other Federal or State law or regulation 12 or under any collective bargaining agreement, except 13 that no court or administrative action shall be avail- 14 able under any State contract law to enforce the 15 rights established under this Act. 16 ‘‘(5) WAIVER OF RIGHTS PROHIBITED.—Agree- 17 ments by employees purporting to waive or modify 18 their rights under this Act shall be void as contrary 19 to public policy, except that a waiver or modification 20 of the rights or obligations in favor of the Secretary 21 of Labor shall be valid for purposes of the enforce- 22 ment of this Act. The preceding sentence may not 23 be construed to prohibit agreements to settle private 24 disputes or litigation. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00189 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 190 •S 1258 IS ‘‘(6) AWARD OF DAMAGES OR OTHER EQUI- 1 TABLE RELIEF.— 2 ‘‘(A) If the court finds that the respondent 3 has intentionally violated any of the rights en- 4 forceable under subsection (b), it shall award 5 actual damages, if any, or equitable relief. 6 ‘‘(B) Any civil action brought under this 7 section shall be subject to appeal as provided in 8 chapter 83 of title 28, United States Code. 9 ‘‘(7) WORKERS’ COMPENSATION BENEFITS; EX- 10 CLUSIVE REMEDY.— 11 ‘‘(A) Notwithstanding any other provision 12 of this section, where a State’s workers’ com- 13 pensation law is applicable and coverage is pro- 14 vided for an H–2A worker, the workers’ com- 15 pensation benefits shall be the exclusive remedy 16 for the loss of such worker under this section 17 in the case of bodily injury or death in accord- 18 ance with such State’s workers’ compensation 19 law. 20 ‘‘(B) The exclusive remedy prescribed in 21 subparagraph (A) precludes the recovery under 22 paragraph (6) of actual damages for loss from 23 an injury or death but does not preclude other 24 equitable relief, except that such relief shall not 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00190 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 191 •S 1258 IS include back or front pay or in any manner, di- 1 rectly or indirectly, expand or otherwise alter or 2 affect— 3 ‘‘(i) a recovery under a State workers’ 4 compensation law; or 5 ‘‘(ii) rights conferred under a State 6 workers’ compensation law. 7 ‘‘(8) TOLLING OF STATUTE OF LIMITATIONS.— 8 If it is determined under a State workers’ compensa- 9 tion law that the workers’ compensation law is not 10 applicable to a claim for bodily injury or death of an 11 H–2A worker, the statute of limitations for bringing 12 an action for actual damages for such injury or 13 death under subsection (c) shall be tolled for the pe- 14 riod during which the claim for such injury or death 15 under such State workers’ compensation law was 16 pending. The statute of limitations for an action for 17 actual damages or other equitable relief arising out 18 of the same transaction or occurrence as the injury 19 or death of the H–2A worker shall be tolled for the 20 period during which the claim for such injury or 21 death was pending under the State workers’ com- 22 pensation law. 23 ‘‘(9) PRECLUSIVE EFFECT.—Any settlement by 24 an H–2A worker and an H–2A employer or any per- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00191 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 192 •S 1258 IS son reached through the mediation process required 1 under subsection (c)(1) shall preclude any right of 2 action arising out of the same facts between the par- 3 ties in any Federal or State court or administrative 4 proceeding, unless specifically provided otherwise in 5 the settlement agreement. 6 ‘‘(10) SETTLEMENTS.—Any settlement by the 7 Secretary of Labor with an H–2A employer on be- 8 half of an H–2A worker of a complaint filed with the 9 Secretary of Labor under this section or any finding 10 by the Secretary of Labor under subsection 11 (a)(1)(B) shall preclude any right of action arising 12 out of the same facts between the parties under any 13 Federal or State court or administrative proceeding, 14 unless specifically provided otherwise in the settle- 15 ment agreement. 16 ‘‘(d) DISCRIMINATION PROHIBITED.— 17 ‘‘(1) IN GENERAL.—It is a violation of this sub- 18 section for any person who has filed an application 19 under section 218(a), to intimidate, threaten, re- 20 strain, coerce, blacklist, discharge, or in any other 21 manner discriminate against an employee (which 22 term, for purposes of this subsection, includes a 23 former employee and an applicant for employment) 24 because the employee has disclosed information to 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00192 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 193 •S 1258 IS the employer, or to any other person, that the em- 1 ployee reasonably believes evidences a violation of 2 section 218 or 218A or any rule or regulation per- 3 taining to section 218 or 218A, or because the em- 4 ployee cooperates or seeks to cooperate in an inves- 5 tigation or other proceeding concerning the employ- 6 er’s compliance with the requirements of section 218 7 or 218A or any rule or regulation pertaining to ei- 8 ther of such sections. 9 ‘‘(2) DISCRIMINATION AGAINST H–2A WORK- 10 ERS.—It is a violation of this subsection for any per- 11 son who has filed an application under section 12 218(a), to intimidate, threaten, restrain, coerce, 13 blacklist, discharge, or in any manner discriminate 14 against an H–2A employee because such worker has, 15 with just cause, filed a complaint with the Secretary 16 of Labor regarding a denial of the rights enumer- 17 ated and enforceable under subsection (b) or insti- 18 tuted, or caused to be instituted, a private right of 19 action under subsection (c) regarding the denial of 20 the rights enumerated under subsection (b), or has 21 testified or is about to testify in any court pro- 22 ceeding brought under subsection (c). 23 ‘‘(e) AUTHORIZATION TO SEEK OTHER APPRO- 24 PRIATE EMPLOYMENT.—The Secretary of Labor and the 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00193 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 194 •S 1258 IS Secretary shall establish a process under which an H–2A 1 worker who files a complaint regarding a violation of sub- 2 section (d) and is otherwise eligible to remain and work 3 in the United States may be allowed to seek other appro- 4 priate employment in the United States for a period not 5 to exceed the maximum period of stay authorized for such 6 nonimmigrant classification. 7 ‘‘(f) ROLE OF ASSOCIATIONS.— 8 ‘‘(1) VIOLATION BY A MEMBER OF AN ASSOCIA- 9 TION.—An employer on whose behalf an application 10 is filed by an association acting as its agent is fully 11 responsible for such application, and for complying 12 with the terms and conditions of sections 218 and 13 218A, as though the employer had filed the applica- 14 tion itself. If such an employer is determined, under 15 this section, to have committed a violation, the pen- 16 alty for such violation shall apply only to that mem- 17 ber of the association unless the Secretary of Labor 18 determines that the association or other member 19 participated in, had knowledge, or reason to know, 20 of the violation, in which case the penalty shall be 21 invoked against the association or other association 22 member as well. 23 ‘‘(2) VIOLATIONS BY AN ASSOCIATION ACTING 24 AS AN EMPLOYER.—If an association filing an appli- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00194 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 195 •S 1258 IS cation as a sole or joint employer is determined to 1 have committed a violation under this section, the 2 penalty for such violation shall apply only to the as- 3 sociation unless the Secretary of Labor determines 4 that an association member or members participated 5 in or had knowledge, or reason to know of the viola- 6 tion, in which case the penalty shall be invoked 7 against the association member or members as well. 8 ‘‘SEC. 218D. DEFINITIONS. 9 ‘‘In this section and in sections 218, 218A, 218B, 10 and 218C: 11 ‘‘(1) AGRICULTURAL EMPLOYMENT.—The term 12 ‘agricultural employment’ means any service or ac- 13 tivity that is considered to be agricultural under sec- 14 tion 3(f) of the Fair Labor Standards Act of 1938 15 (29 U.S.C. 203(f)) or agricultural labor under sec- 16 tion 3121(g) of the Internal Revenue Code of 1986 17 or the performance of agricultural labor or services 18 described in section 101(a)(15)(H)(ii)(a). 19 ‘‘(2) BONA FIDE UNION.—The term ‘bona fide 20 union’ means any organization in which employees 21 participate and which exists for the purpose of deal- 22 ing with employers concerning grievances, labor dis- 23 putes, wages, rates of pay, hours of employment, or 24 other terms and conditions of work for agricultural 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00195 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 196 •S 1258 IS employees. Such term does not include an organiza- 1 tion formed, created, administered, supported, domi- 2 nated, financed, or controlled by an employer or em- 3 ployer association or its agents or representatives. 4 ‘‘(3) DISPLACE.—The term ‘displace’, in the 5 case of an application with respect to 1 or more H– 6 2A workers by an employer, means laying off a 7 United States worker from a job for which H–2A 8 workers are sought. 9 ‘‘(4) ELIGIBLE.—The term ‘eligible’, when used 10 with respect to an individual, means an individual 11 who is not an unauthorized alien (as defined in sec- 12 tion 274A). 13 ‘‘(5) EMPLOYER.—The term ‘employer’ means 14 any person or entity, including any farm labor con- 15 tractor and any agricultural association, that em- 16 ploys workers in agricultural employment. 17 ‘‘(6) H–2A EMPLOYER.—The term ‘H–2A em- 18 ployer’ means an employer who seeks to hire 1 or 19 more nonimmigrant aliens described in section 20 101(a)(15)(H)(ii)(a). 21 ‘‘(7) H–2A WORKER.—The term ‘H–2A worker’ 22 means a nonimmigrant described in section 23 101(a)(15)(H)(ii)(a). 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00196 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 197 •S 1258 IS ‘‘(8) JOB OPPORTUNITY.—The term ‘job oppor- 1 tunity’ means a job opening for temporary or sea- 2 sonal full-time employment at a place in the United 3 States to which United States workers can be re- 4 ferred. 5 ‘‘(9) LAYING OFF.— 6 ‘‘(A) IN GENERAL.—The term ‘laying off’, 7 with respect to a worker— 8 ‘‘(i) means to cause the worker’s loss 9 of employment, other than through a dis- 10 charge for inadequate performance, viola- 11 tion of workplace rules, cause, voluntary 12 departure, voluntary retirement, contract 13 impossibility (as described in section 14 218A(b)(4)(D)), or temporary suspension 15 of employment due to weather, markets, or 16 other temporary conditions; and 17 ‘‘(ii) does not include any situation in 18 which the worker is offered, as an alter- 19 native to such loss of employment, a simi- 20 lar employment opportunity with the same 21 employer (or, in the case of a placement of 22 a worker with another employer under sec- 23 tion 218(b)(2)(E), with either employer de- 24 scribed in such section) at equivalent or 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00197 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 198 •S 1258 IS higher compensation and benefits than the 1 position from which the employee was dis- 2 charged, regardless of whether or not the 3 employee accepts the offer. 4 ‘‘(B) STATUTORY CONSTRUCTION.—Noth- 5 ing in this paragraph is intended to limit an 6 employee’s rights under a collective bargaining 7 agreement or other employment contract. 8 ‘‘(10) REGULATORY DROUGHT.—The term ‘reg- 9 ulatory drought’ means a decision subsequent to the 10 filing of the application under section 218 by an en- 11 tity not under the control of the employer making 12 such filing which restricts the employer’s access to 13 water for irrigation purposes and reduces or limits 14 the employer’s ability to produce an agricultural 15 commodity, thereby reducing the need for labor. 16 ‘‘(11) SEASONAL.—Labor is performed on a 17 ‘seasonal’ basis if— 18 ‘‘(A) ordinarily, it pertains to or is of the 19 kind exclusively performed at certain seasons or 20 periods of the year; and 21 ‘‘(B) from its nature, it may not be contin- 22 uous or carried on throughout the year. 23 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00198 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 199 •S 1258 IS ‘‘(12) SECRETARY.—Except as otherwise pro- 1 vided, the term ‘Secretary’ means the Secretary of 2 Homeland Security. 3 ‘‘(13) TEMPORARY.—A worker is employed on a 4 ‘temporary’ basis where the employment is intended 5 not to exceed 10 months. 6 ‘‘(14) UNITED STATES WORKER.—The term 7 ‘United States worker’ means any worker, whether 8 a national of the United States, an alien lawfully ad- 9 mitted for permanent residence, or any other alien, 10 who is authorized to work in the job opportunity 11 within the United States, except an alien admitted 12 or otherwise provided status under section 13 101(a)(15)(H)(ii)(a).’’. 14 (b) TABLE OF CONTENTS.—The table of contents of 15 the Immigration and Nationality Act (8 U.S.C. 1101 et 16 seq.) is amended by striking the item relating to section 17 218 and inserting the following: 18 ‘‘Sec. 218. H–2A employer applications. ‘‘Sec. 218A. H–2A employment requirements. ‘‘Sec. 218B. Procedure for admission and extension of stay of H–2A workers. ‘‘Sec. 218C. Worker protections and labor standards enforcement. ‘‘Sec. 218D. Definitions.’’. PART VI—FAMILY UNITY REFORMS 19 SEC. 161. PROMOTING FAMILY UNITY. 20 (a) UNLAWFULLY PRESENT ALIENS.—Section 21 212(a)(9) (8 U.S.C. 1182(a)(9)) is amended by striking 22 subparagraphs (B) and (C) and inserting the following: 23 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00199 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 200 •S 1258 IS ‘‘(B) ALIENS UNLAWFULLY PRESENT.— 1 ‘‘(i) IN GENERAL.—Subject to clause 2 (iii), any alien (other than an alien lawfully 3 admitted for permanent residence) who has 4 been unlawfully present in the United 5 States for 1 year or more is inadmissible 6 until such time as the alien departs or is 7 removed and remains outside of the United 8 States for a period of 3 consecutive years. 9 ‘‘(ii) CONSTRUCTION OF UNLAWFUL 10 PRESENCE.—For purposes of this para- 11 graph, an alien is deemed to be unlawfully 12 present in the United States if the alien is 13 present in the United States after the expi- 14 ration of the period of stay authorized by 15 the Secretary or is present in the United 16 States without being admitted or paroled. 17 ‘‘(iii) EXCEPTIONS.— 18 ‘‘(I) MINORS.—No period of time 19 in which an alien is under 21 years of 20 age shall be taken into account in de- 21 termining the period of unlawful pres- 22 ence in the United States under 23 clause (i). 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00200 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 201 •S 1258 IS ‘‘(II) ASYLEES.—No period of 1 time in which an alien has a bona fide 2 application for asylum pending under 3 section shall be taken into account in 4 determining the period of unlawful 5 presence in the United States under 6 clause (i) unless the alien during such 7 period was employed without author- 8 ization in the United States. 9 ‘‘(III) FAMILY UNITY.—No pe- 10 riod of time in which the alien is a 11 beneficiary of family unity protection 12 pursuant to section of the Immigra- 13 tion Act of 1990 shall be taken into 14 account in determining the period of 15 unlawful presence in the United 16 States under clause (I). 17 ‘‘(IV) BATTERED WOMEN AND 18 CHILDREN.—Clause (i) shall not apply 19 to an alien who would be described in 20 paragraph (6)(A)(ii) if ‘violation of 21 the terms of the alien’s nonimmigrant 22 visa’ were substituted for ‘unlawful 23 entry into the United States’ in sub- 24 clause (III) of that paragraph. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00201 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 202 •S 1258 IS ‘‘(V) TRAFFICKING VICTIMS.— 1 Clause (i) shall not apply to an alien 2 who demonstrates that the severe 3 form of trafficking (as that term is 4 defined in section 103 of the Traf- 5 ficking Victims Protection Act of 6 2000 (22 U.S.C. 7102)) was at least 7 1 central reason for the alien’s unlaw- 8 ful presence in the United States. 9 ‘‘(VI) IMMIGRANT VISAS.—Clause 10 (i) shall not apply to an alien for 11 whom an immigrant visa is available 12 or was available on or before the date 13 of the enactment of the Comprehen- 14 sive Immigration Reform Act of 2011, 15 and is otherwise admissible to the 16 United States for permanent resi- 17 dence. 18 ‘‘(VII) PRIOR UNLAWFUL PRES- 19 ENCE.—Any unlawful presence ac- 20 crued by an alien as of the date of en- 21 actment of the Comprehensive Immi- 22 gration Reform Act of 2011 shall not 23 be considered unlawful presence for 24 the purpose of the subparagraph if 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00202 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 203 •S 1258 IS such alien was as of the date of enact- 1 ment of the Comprehensive Immigra- 2 tion Reform Act of 2011— 3 ‘‘(aa) the beneficiary of a 4 pending or approved petition for 5 classification as an immediate 6 relative (as described in section 7 201(b)(2)); 8 ‘‘(bb) the beneficiary of a 9 pending or approved petition 10 under section 203(a) or (b); or 11 ‘‘(cc) a derivative beneficiary 12 of a pending or approved petition 13 for classification as an immediate 14 relative or under section 203(a) 15 or (b). 16 ‘‘(iv) TOLLING FOR GOOD CAUSE.—In 17 the case of an alien who— 18 ‘‘(I) has been lawfully admitted 19 or paroled into the United States; 20 ‘‘(II) has filed a nonfrivolous ap- 21 plication for a change or extension of 22 status before the date of expiration of 23 the period of stay authorized by the 24 Secretary; and 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00203 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 204 •S 1258 IS ‘‘(III) has not been employed 1 without authorization in the United 2 States before or during the pendency 3 of such application, the calculation of 4 the period of time specified in clause 5 (i)(I) shall be tolled during the pend- 6 ency of such application, but not to 7 exceed 120 days. 8 ‘‘(v) WAIVER.—The Secretary may 9 waive the applicability of clause (i) for an 10 immigrant who is the spouse, son, daugh- 11 ter, or parent of a United States citizen or 12 of an alien lawfully admitted for perma- 13 nent residence if the Secretary determines 14 that— 15 ‘‘(I) the refusal of admission to 16 such immigrant alien would result in 17 hardship to the alien or to the citizen 18 or lawfully resident spouse, son, 19 daughter, or parent of such alien; 20 ‘‘(II) a waiver is necessary for 21 humanitarian purposes or the public 22 interest or to ensure family unity in 23 the case of an alien who is eligible for 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00204 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 205 •S 1258 IS an immigrant visa under section 201 1 or 203; or 2 ‘‘(III) the alien should be per- 3 mitted to depart the United States 4 voluntarily pursuant to section 5 240B(a)(1).’’. 6 (b) FALSE CLAIMS AND MISREPRESENTATIONS.— 7 Title II (8 U.S.C. 1151 et seq.) is amended— 8 (1) in section 212 (8 U.S.C. 1182)— 9 (A) in subsection (a)(6)(C)— 10 (i) in clause (ii), by inserting ‘‘and 11 willfully’’ after ‘‘falsely’’ each place such 12 term appears; and 13 (ii) in clause (iii), by striking ‘‘of 14 clause (i)’’; and 15 (B) in subsection (i), by amending para- 16 graph (1) to read as follows: 17 ‘‘(1) The Attorney General or the Secretary of 18 Homeland Security may, in the discretion of the At- 19 torney General or the Secretary, waive the applica- 20 tion of subsection (a)(6)(C) if it is established to the 21 satisfaction of the Attorney General or the Secretary 22 that the refusal of admission to the United States 23 would— 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00205 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 206 •S 1258 IS ‘‘(A) result in extreme hardship to the 1 alien or, in the case of an immigrant who is the 2 parent, spouse, son, or daughter of a United 3 States citizen or of an alien lawfully admitted 4 for permanent residence, to the citizen or law- 5 fully resident parent, spouse, son, or daughter; 6 or 7 ‘‘(B) in the case of a VAWA self-peti- 8 tioner, result in significant hardship to the alien 9 or the alien’s United States citizen, lawful per- 10 manent resident, or qualified alien parent or 11 child.’’; and 12 (2) in section 237(a)(3)(D) (8 U.S.C. 13 1227(a)(3)(D)), by inserting ‘‘and willfully’’ after 14 ‘‘falsely’’ each place such term appears. 15 SEC. 162. EFFECTIVE LEGALIZATION PROGRAM FUNDING. 16 (a) DEPARTMENT OF HOMELAND SECURITY LEGAL- 17 IZATION PROGRAM ACCOUNT.— 18 (1) ESTABLISHMENT.—There is established in 19 the General Fund of the Treasury a separate ac- 20 count, which shall be known as the ‘‘Department of 21 Homeland Security Legalization Program Account’’. 22 (2) SOURCE OF FUNDS.—The Secretary of the 23 Treasury shall immediately transfer such sums as 24 the Secretary of Homeland Security determines to 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00206 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 207 •S 1258 IS be necessary from the General Fund of the Treasury 1 to the Department of Homeland Security Legaliza- 2 tion Program Account. 3 (3) AUTHORIZATION OF APPROPRIATIONS.— 4 (A) IN GENERAL.—There are authorized to 5 be appropriated, for the purposes described in 6 subparagraph (B), such sums as are trans- 7 ferred pursuant to paragraph (2), which shall 8 remain available for obligation during the 10- 9 year period beginning on the date of the enact- 10 ment of this Act. 11 (B) USE OF FUNDS.—Amounts appro- 12 priated pursuant to subparagraph (A) may be 13 used by the Secretary to implement and operate 14 the legalization programs and activities de- 15 scribed in this subtitle, including— 16 (i) infrastructure, staffing, and adju- 17 dication activities; 18 (ii) outreach activities; 19 (iii) grants to community and faith- 20 based organizations; and 21 (iv) anti-fraud programs and actions 22 relating to such legalization programs. 23 (4) REPORT.— 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00207 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 208 •S 1258 IS (A) IN GENERAL.—Not later than 90 days 1 after the date of the enactment of this Act, and 2 annually thereafter, the Secretary shall provide 3 a plan to the congressional committees set forth 4 in subparagraph (B) that describes how funds 5 made available under paragraph (3) will be ex- 6 pended, including— 7 (i) 1-time and on-going costs; 8 (ii) the level of funding for each pro- 9 gram, project, and activity, including 10 whether such funding will supplement a 11 program, project, or activity receiving Fed- 12 eral funding otherwise appropriated; and 13 (iii) the amount of funding to be obli- 14 gated in each fiscal year, by program, 15 project, and activity. 16 (B) CONGRESSIONAL COMMITTEES.—The 17 congressional committees set forth in the sub- 18 paragraph are— 19 (i) the Committee on the Judiciary of 20 the Senate; 21 (ii) the Committee on Appropriations 22 of the Senate; 23 (iii) the Committee on the Judiciary 24 of the House of Representatives; and 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00208 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 209 •S 1258 IS (iv) the Committee on Appropriations 1 of the House of Representatives. 2 (b) DEPARTMENT OF STATE LEGALIZATION PRO- 3 GRAM ACCOUNT.— 4 (1) ESTABLISHMENT.—There is established in 5 the General Fund of the Treasury a separate ac- 6 count, which shall be known as the ‘‘Department of 7 State Legalization Program Account’’. 8 (2) SOURCE OF FUNDS.—The Secretary of the 9 Treasury shall immediately transfer such sums as 10 the Secretary of State determines to be necessary 11 from the General Fund of the Treasury to the De- 12 partment of State Legalization Program Account. 13 (3) AUTHORIZATION OF APPROPRIATIONS.— 14 (A) IN GENERAL.—There are authorized to 15 be appropriated, for the purposes described in 16 subparagraph (B), such sums as are trans- 17 ferred pursuant to paragraph (2), which shall 18 remain available for obligation during the 10- 19 year period beginning on the date of the enact- 20 ment of this Act. 21 (B) USE OF FUNDS.—Amounts appro- 22 priated pursuant to subparagraph (A) may be 23 used by the Secretary of State to implement 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00209 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 210 •S 1258 IS and operate the legalization programs and ac- 1 tivities described in this subtitle, including— 2 (i) infrastructure, staffing, and adju- 3 dication activities; 4 (ii) outreach activities; and 5 (iii) anti-fraud programs and actions 6 relating to such legalization programs. 7 (4) REPORT.—Not later than 90 days after the 8 date of the enactment of this Act, and annually 9 thereafter, the Secretary of State shall provide a 10 plan to the congressional committees set forth in 11 subsection (a)(4)(B) that describes how funds made 12 available under paragraph (3) will be expended, in- 13 cluding— 14 (A) 1-time and on-going costs; 15 (B) the level of funding for each program, 16 project, and activity, including whether such 17 funding will supplement a program, project, or 18 activity receiving Federal funding otherwise ap- 19 propriated; and 20 (C) the amount of funding to be obligated 21 in each fiscal year, by program, project, and ac- 22 tivity. 23 (c) IMMIGRATION REFORM PENALTY ACCOUNT.— 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00210 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 211 •S 1258 IS (1) ESTABLISHMENT.—There is established in 1 the General Fund of the Treasury a separate ac- 2 count, which shall be known as the ‘‘Immigration 3 Reform Penalty Account’’. 4 (2) SOURCE OF FUNDS.—Notwithstanding any 5 other provision of this Act, there shall be deposited 6 into the Immigration Reform Penalty Account all 7 civil penalties collected under section 274A of the 8 Immigration and Nationality Act (8 U.S.C. 1324a) 9 and this subtitle, except as specifically provided oth- 10 erwise in this subtitle. 11 (3) USE OF FUNDS.—Amounts deposited into 12 the Immigration Reform Penalty Account shall re- 13 main available to the Secretary until expended in the 14 following priority order: 15 (A) Any costs incurred in implementing 16 and operating the immigration services pro- 17 grams described in this subtitle that are not 18 otherwise paid for with— 19 (i) funds from the Department of 20 Homeland Security Legalization Program 21 Account; or 22 (ii) processing fees described in sec- 23 tion 111(c)(4)(A). 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00211 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 212 •S 1258 IS (B) Any amount remaining in the account 1 after the costs described in subparagraph (A) 2 have been paid for shall be deposited into the 3 General Fund of the Treasury to the extent 4 necessary to reimburse the General Fund for 5 funds transferred to the Department of Home- 6 land Security Legalization Program Account 7 under subsection (a)(2). 8 (C) Of the amount, if any, remaining in 9 the account after the reimbursement described 10 in subparagraph (B)— 11 (i) 1⁄3 shall be allocated to the Sec- 12 retary to carry out investigation and pre- 13 vention of fraud in— 14 (I) the legalization programs es- 15 tablished under this subtitle; and 16 (II) the employment verification 17 programs established under subtitle 18 B; 19 (ii) 1⁄3 shall be allocated to the Sec- 20 retary for immigrant integration programs, 21 including English-language and United 22 States civics instruction; 23 (iii) 1⁄6 shall be allocated to the Sec- 24 retary for immigration services; and 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00212 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 213 •S 1258 IS (iv) 1⁄6 shall be allocated to the Sec- 1 retary for immigration enforcement. 2 (d) CONSTRUCTION.—Nothing in this section may be 3 construed to modify or limit any authority to collect and 4 use immigration fees under this Act, section 286 of the 5 Immigration and Nationality Act (8 U.S.C. 1356), or any 6 other law. 7 Subtitle B—Worksite Enforcement 8 SEC. 171. UNLAWFUL EMPLOYMENT OF ALIENS. 9 (a) Section 274A of the Immigration and Nationality 10 Act (8 U.S.C. 1324a) is amended to read as follows: 11 ‘‘SEC. 274A. UNLAWFUL EMPLOYMENT OF UNAUTHORIZED 12 ALIENS. 13 ‘‘(a) IN GENERAL.— 14 ‘‘(1) IN GENERAL.—It is unlawful for an em- 15 ployer— 16 ‘‘(A) to hire an alien for employment in 17 the United States knowing or with reckless dis- 18 regard that the alien is an unauthorized alien 19 with respect to such employment; or 20 ‘‘(B) to hire for employment in the United 21 States an individual without complying with the 22 requirements under subsections (c) and (d). 23 ‘‘(2) CONTINUING EMPLOYMENT.—It is unlaw- 24 ful for an employer, after hiring an alien for employ- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00213 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 214 •S 1258 IS ment, to continue to employ the alien in the United 1 States knowing or with reckless disregard that the 2 alien is, or has become, an unauthorized alien with 3 respect to such employment. Nothing in this section 4 may be construed to prohibit or to require the em- 5 ployment of an authorized employee who was pre- 6 viously unauthorized. 7 ‘‘(3) USE OF LABOR THROUGH CONTRACT.— 8 ‘‘(A) IN GENERAL.—Any person or entity 9 who uses a contract, subcontract, or exchange 10 to obtain the labor of an alien in the United 11 States knowing or with reckless disregard that 12 the alien is an unauthorized alien with respect 13 to performing such labor, shall be deemed to 14 have hired the alien for employment in the 15 United States in violation of subparagraph 16 (a)(1)(A). 17 ‘‘(B) CONTRACT REQUIREMENT.—For pur- 18 poses of ensuring compliance with Federal im- 19 migration law, the Secretary may require by 20 regulation that a person or entity include in a 21 written contract or subcontract an effective and 22 enforceable requirement that the contractor or 23 subcontractor adhere to the immigration laws, 24 including the use of an employment verification 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00214 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 215 •S 1258 IS system (referred to in this section as the ‘Sys- 1 tem’). 2 ‘‘(C) CONFIRMATION PROCEDURES.—The 3 Secretary may establish procedures by which a 4 person or entity may obtain confirmation from 5 the Secretary that the contractor or subcon- 6 tractor has registered with the System and is 7 utilizing the System to verify its employees. 8 ‘‘(D) OTHER REQUIREMENTS.—The Sec- 9 retary may establish such other requirements 10 for persons or entities using contractors or sub- 11 contractors, including procedures adapted to 12 different employment sectors, as the Secretary 13 deems necessary to prevent knowing violations 14 of this paragraph. 15 ‘‘(4) DEFENSE.— 16 ‘‘(A) IN GENERAL.—Subject to subpara- 17 graphs (B) and (C), an employer that estab- 18 lishes that it has complied in good faith with 19 the requirements under paragraphs (1) through 20 (4) of subsection (c) (pertaining to document 21 verification requirements) and subsection (d) 22 (pertaining to the use of the System) has estab- 23 lished an affirmative defense that the employer 24 has not violated subsection (a)(1)(A) with re- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00215 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 216 •S 1258 IS spect to such hiring until such time as the Sec- 1 retary has required an employer to participate 2 in the System. 3 ‘‘(B) VOLUNTARY PARTICIPATION.—If an 4 employer is participating on a voluntary basis 5 pursuant to subsection (d), a defense may be 6 established under this paragraph without a 7 showing of compliance with subsection (d). 8 ‘‘(C) ADDITIONAL REQUIREMENTS.—To 9 establish a defense under this paragraph, the 10 employer shall also be in compliance with any 11 additional requirements that the Secretary may 12 promulgate by regulation pursuant to sub- 13 sections (c) and (d). 14 ‘‘(5) PRESUMPTION.—An employer is presumed 15 to have acted with knowledge or reckless disregard 16 if the employer fails to comply with written stand- 17 ards, procedures, or instructions issued by the Sec- 18 retary. 19 ‘‘(b) DEFINITIONS.—In this section: 20 ‘‘(1) EMPLOYER.—The term ‘employer’— 21 ‘‘(A) means any person or entity hiring an 22 individual for employment in the United States, 23 including— 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00216 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 217 •S 1258 IS ‘‘(i) any person or entity who is an 1 agent acting on behalf of an employer; and 2 ‘‘(ii) entities in any branch of the 3 Federal Government; and 4 ‘‘(B) does not include a person or entity 5 with fewer than 5 full- or part-time employees, 6 for purposes of any requirement to participate 7 in the System under subsection (d), except as 8 it relates to subsection (d)(2)(H). 9 ‘‘(2) UNAUTHORIZED ALIEN.—The term ‘unau- 10 thorized alien’ means, with respect to the employ- 11 ment of an alien at a particular time, that the alien 12 is not— 13 ‘‘(A) an alien lawfully admitted for perma- 14 nent residence; or 15 ‘‘(B) authorized to be so employed under 16 this Act or by the Secretary. 17 ‘‘(c) DOCUMENT VERIFICATION REQUIREMENTS.— 18 Any employer hiring an individual for employment in the 19 United States shall take the following steps, and those 20 provided in subsection (d), to verify that the individual 21 is authorized to work in the United States: 22 ‘‘(1) ATTESTATION AFTER EXAMINATION OF 23 DOCUMENTATION.— 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00217 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 218 •S 1258 IS ‘‘(A) IN GENERAL.—The employer shall at- 1 test, under penalty of perjury and on a form 2 prescribed by the Secretary, that it has verified 3 the identity and employment authorization sta- 4 tus of the individual by examining— 5 ‘‘(i) a document described in subpara- 6 graph (B); or 7 ‘‘(ii) a document described in sub- 8 paragraph (C) and a document described 9 in subparagraph (D). 10 The form prescribed by the Secretary may be 11 electronic or on paper, and may be integrated 12 electronically with the requirements under sub- 13 section (d), if the Secretary determines that 14 combining the requirements in (c) and (d) 15 would improve efficiency of the verification re- 16 quirements. Such attestation may be manifested 17 by either a handwritten or digital signature. An 18 employer has complied with the requirements of 19 this paragraph with respect to examination of 20 documentation if the employer has followed ap- 21 plicable regulations and any written procedures 22 or instructions provided by the Secretary, and 23 if a reasonable person would conclude that the 24 documentation is genuine and relates to the in- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00218 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 219 •S 1258 IS dividual presenting it, taking into account any 1 information provided to the employer by the 2 Secretary, including photographs and other bio- 3 metric information. 4 ‘‘(B) DOCUMENTS ESTABLISHING BOTH 5 EMPLOYMENT AUTHORIZATION AND IDEN- 6 TITY.—A document described in this subpara- 7 graph is an individual’s— 8 ‘‘(i) United States passport or pass- 9 port card issued pursuant to the Secretary 10 of State’s authority under section 211a of 11 title 22, United States Code; 12 ‘‘(ii) permanent resident card or other 13 document issued to aliens authorized to 14 work in the United States, as designated 15 by the Secretary, if the document— 16 ‘‘(I) contains a photograph of the 17 individual, other biometric data such 18 as fingerprints, or such other personal 19 identifying information relating to the 20 individual as the Secretary finds, by 21 regulation, sufficient for the purposes 22 of this subsection; 23 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00219 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 220 •S 1258 IS ‘‘(II) is evidence of authorization 1 for employment in the United States; 2 and 3 ‘‘(III) contains security features 4 to make it resistant to tampering, 5 counterfeiting, and fraudulent use; 6 ‘‘(iii) enhanced driver’s license, en- 7 hanced identification card, or enhanced 8 tribal card issued to a citizen of the United 9 States, provided that the Secretary has 10 certified by notice published in the Federal 11 Register that such enhanced document is 12 suitable for use under this subparagraph 13 based upon the accuracy and security of 14 the issuance process, security features on 15 the document, and such other factors as 16 the Secretary may determine; or 17 ‘‘(iv) a passport issued by the Fed- 18 erated States of Micronesia (FSM) or the 19 Republic of the Marshall Islands (RMI) 20 with evidence of nonimmigrant admission 21 to the United States under the Compact of 22 Free Association between the United 23 States and the FSM or the RMI. 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00220 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 221 •S 1258 IS ‘‘(C) DOCUMENTS ESTABLISHING IDEN- 1 TITY OF INDIVIDUAL.—A document described in 2 this subparagraph includes— 3 ‘‘(i) an individual’s driver’s license or 4 identity card issued by a State or an out- 5 lying possession of the United States, a 6 Federally recognized Indian tribe, or an 7 agency (including military) of the Federal 8 government if the driver’s license or iden- 9 tity card includes, at a minimum,— 10 ‘‘(I) the individual’s photograph, 11 name, date of birth, gender, and driv- 12 er’s license or identification card num- 13 ber, and 14 ‘‘(II) security features to make it 15 resistant to tampering, counterfeiting, 16 and fraudulent use, or 17 ‘‘(ii) for individuals under 18 years of 18 age who are unable to present a document 19 listed in clause (i), documentation of per- 20 sonal identity of such other type as the 21 Secretary finds provides a reliable means 22 of identification, which may include an at- 23 testation as to the individual’s identity by 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00221 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 222 •S 1258 IS a person 21 years of age or older under 1 penalty of perjury. 2 ‘‘(D) DOCUMENTS EVIDENCING EMPLOY- 3 MENT AUTHORIZATION.—All documents shall be 4 unexpired. The following documents may be ac- 5 cepted as evidence of employment authoriza- 6 tion— 7 ‘‘(i) a Social Security account number 8 card issued by the Commissioner of Social 9 Security (referred to in this section as the 10 ‘Commissioner’) other than a card which 11 specifies on its face that the card is not 12 valid for employment in the United States 13 or has other similar words of limitation. 14 The Secretary, in consultation with the 15 Commissioner, may require by publication 16 of a notice in the Federal Register that 17 only a Social Security account number 18 card described in section 173 of the CIR 19 Act of 2011 be accepted for this purpose; 20 or 21 ‘‘(ii) any other documentation evidenc- 22 ing authorization of employment in the 23 United States which the Secretary deter- 24 mines, by notice published in the Federal 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00222 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 223 •S 1258 IS Register, to be acceptable for purposes of 1 this section, provided that the document, 2 including any electronic security measures 3 linked to the document, contains security 4 features to make it resistant to tampering, 5 counterfeiting, and fraudulent use. 6 ‘‘(E) AUTHORITY TO PROHIBIT USE OF 7 CERTAIN DOCUMENTS.—If the Secretary finds 8 that any document or class of documents de- 9 scribed in subparagraph (B), (C), or (D) does 10 not reliably establish employment authorization 11 or identity or is being used fraudulently to an 12 unacceptable degree, the Secretary may prohibit 13 or restrict the use of that document or class of 14 documents for purposes of this subsection. 15 ‘‘(2) INDIVIDUAL ATTESTATION OF EMPLOY- 16 MENT AUTHORIZATION.—The individual shall attest, 17 under penalty of perjury in the form prescribed by 18 the Secretary, that the individual is a citizen or na- 19 tional of the United States, an alien lawfully admit- 20 ted for permanent residence, or an alien who is au- 21 thorized under this Act or by the Secretary to be 22 hired for such employment. Such attestation may be 23 manifested by either a hand-written or digital signa- 24 ture. The individual shall also provide any Social Se- 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00223 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 224 •S 1258 IS curity Account Number issued to the individual on 1 such form. 2 ‘‘(3) RETENTION OF VERIFICATION RECORD.— 3 After completion of such form in accordance with 4 paragraphs (1) and (2), the employer shall retain a 5 paper, microfiche, microfilm, or electronic version of 6 the form, according to such standards as the Sec- 7 retary may provide, and make it available for inspec- 8 tion by officers or employees of the Department of 9 Homeland Security (or persons designated by the 10 Secretary), the Special Counsel for Immigration-Re- 11 lated Unfair Employment Practices, or the Depart- 12 ment of Labor during a period beginning on the date 13 of the hiring of the individual and ending 7 years 14 after such date of hiring, or 2 years after the date 15 the individual’s employment is terminated, whichever 16 is later. 17 ‘‘(4) COPYING OF DOCUMENTATION AND REC- 18 ORDKEEPING REQUIRED.— 19 ‘‘(A) Notwithstanding any other provision 20 of law, the employer shall copy all documents 21 presented by an individual pursuant to this sub- 22 section and shall retain a paper, microfiche, 23 microfilm, or electronic copy, but only (except 24 as otherwise permitted under law) for the pur- 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00224 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 225 •S 1258 IS poses of complying with the requirements of 1 this section and section 274B. Such copies may 2 be required to reflect the signatures of the em- 3 ployer and the employee, as well as the date of 4 receipt. The Secretary may authorize or require 5 an alternative method of storing and authen- 6 ticating the employee’s documentation informa- 7 tion if the Secretary determines that such alter- 8 native method is more secure or efficient. 9 ‘‘(B) The employer shall maintain records 10 of all actions and copies of any correspondence 11 or action taken by the employer to clarify or re- 12 solve any issue as to the validity of the individ- 13 ual’s identity or employment authorization. 14 ‘‘(C) The employer shall maintain the 15 records described in this paragraph for any em- 16 ployee for the period of time required by para- 17 graph (3) for retention of that employee’s 18 verification form. The Secretary may prescribe 19 the manner of recordkeeping and may require 20 that additional records be kept or that addi- 21 tional documents be copied and maintained. 22 The Secretary in furtherance of an investigation 23 based on reasonable suspicion of a violation of 24 this act, may require that these documents be 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00225 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 226 •S 1258 IS transmitted electronically for purposes of au- 1 thorized inspections or other enforcement ac- 2 tions, and may develop automated capabilities 3 to request such documents. 4 ‘‘(D) An employer shall safeguard any in- 5 formation retained under this paragraph and 6 paragraph (3) and protect any means of access 7 to such information to ensure that such infor- 8 mation is not used for any purpose other than 9 as authorized in this paragraph or paragraph 10 (3) or to determine the identity and employ- 11 ment eligibility of the individual, and to protect 12 the confidentiality of such information, includ- 13 ing ensuring that such information is not pro- 14 vided to any person other than a person who 15 carries out the employer’s responsibilities under 16 this subsection, except as provided in paragraph 17 (3). 18 ‘‘(5) PENALTIES.—An employer that fails to 19 comply with any requirement of this subsection shall 20 be penalized under subsection (e)(4)(B). 21 ‘‘(6) PROTECTION OF CIVIL RIGHTS.— 22 ‘‘(A) Nothing in this section shall be con- 23 strued to prohibit any reasonable accommoda- 24 tion necessary to protect the religious freedom 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00226 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 227 •S 1258 IS of any individual, or to ensure access to employ- 1 ment opportunities of any disabled individual. 2 ‘‘(B) The employer shall use the proce- 3 dures for document verification set forth in this 4 paragraph for all employees without regard to 5 race, sex, national origin, or, unless specifically 6 permitted in this section, to citizenship status. 7 ‘‘(7) RECEIPTS.—The Secretary shall provide 8 for the use of receipts for replacement documents, 9 and temporary evidence of employment authorization 10 by an individual to meet a documentation require- 11 ment of this subsection on a temporary basis not to 12 exceed 1 year, pending satisfaction by the individual 13 of such requirement. 14 ‘‘(d) EMPLOYMENT VERIFICATION SYSTEM.— 15 ‘‘(1) IN GENERAL.— 16 ‘‘(A) The Secretary, in consultation with 17 the Commissioner, shall implement and specify 18 the procedures for the System. The partici- 19 pating employers shall timely register with the 20 System and shall use the System as described 21 in subsection (d)(5). 22 ‘‘(B) The Secretary shall create the nec- 23 essary processes to monitor the functioning of 24 the System, including the volume of the 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00227 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 228 •S 1258 IS workflow, the speed of processing of queries, 1 the speed and accuracy of responses, misuse of 2 the System, fraud or identity theft, whether use 3 of the System results in wrongful adverse ac- 4 tions or discrimination based upon a prohibited 5 factor against U.S. citizens or employment au- 6 thorized aliens, and the security, integrity and 7 privacy of the program. 8 ‘‘(2) IMPLEMENTATION SCHEDULE.— 9 ‘‘(A) FEDERAL GOVERNMENT.—All em- 10 ployers within the Executive, Legislative, or Ju- 11 dicial Branches of the Federal Government 12 shall participate in the System on or after the 13 date of enactment of this subsection as fol- 14 lows— 15 ‘‘(i) as of the date of enactment, to 16 the extent required by section 402(e)(1) of 17 the Illegal Immigration Reform and Immi- 18 grant Responsibility Act of 1996 as al- 19 ready implemented by each Branch; or 20 ‘‘(ii) on or after the date that is 60 21 days after the date of enactment of this 22 subsection, 23 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00228 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 229 •S 1258 IS whichever is earlier, with respect to all newly 1 hired employees and employees with expiring 2 employment authorization. 3 ‘‘(B) FEDERAL CONTRACTORS.—Federal 4 contractors shall participate in the System as 5 provided in the final rule published at 73 Fed- 6 eral Register 67,651 (Nov. 14, 2008), or any 7 subsequent amendments to such rule, for which 8 purpose references to E–Verify in the final rule 9 shall be construed to apply to the System. 10 ‘‘(C) CRITICAL INFRASTRUCTURE.—As of 11 the date that is 1 year after the end of the ap- 12 plication period for lawful protective status 13 under section 111(c)(1)(B) of the Comprehen- 14 sive Immigration Reform Act of 2011, the Sec- 15 retary, in the Secretary’s discretion, with notice 16 to the public provided in the Federal Register, 17 may require any employer or industry which the 18 Secretary determines to be part of the critical 19 infrastructure or directly related to the national 20 security or homeland security of the United 21 States to participate in the System with respect 22 to all newly hired employees and employees with 23 expiring employment authorization. The Sec- 24 retary shall notify employers subject to this 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00229 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 230 •S 1258 IS subparagraph no less than 60 days prior to 1 such required participation. 2 ‘‘(D) EMPLOYERS WITH MORE THAN 1,000 3 EMPLOYEES.—Not later than 2 years after the 4 end of the application period for lawful protec- 5 tive status under section 111(c)(1)(B), all em- 6 ployers with more than 1,000 employees shall 7 participate in the System with respect to all 8 newly hired employees and employees with ex- 9 piring employment authorization. 10 ‘‘(E) EMPLOYERS WITH MORE THAN 500 11 EMPLOYEES.—Not later than 3 years after the 12 end of the application period for lawful protec- 13 tive status under section 111(c)(1)(B), all em- 14 ployers with more than 500 employees shall 15 participate in the System with respect to all 16 newly hired employees and employees with ex- 17 piring employment authorization. 18 ‘‘(F) EMPLOYERS WITH MORE THAN 100 19 EMPLOYEES.—Not later than 4 years after the 20 end of the application period for lawful protec- 21 tive status under section 111(c)(1)(B), all em- 22 ployers with more than 100 employees shall 23 participate in the System with respect to all 24 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00230 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 231 •S 1258 IS newly hired employees and employees with ex- 1 piring employment authorization. 2 ‘‘(G) ALL EMPLOYERS.—Not later than 5 3 years after the end of the application period for 4 lawful protective status under section 5 111(c)(1)(B), all employers shall participate in 6 the System with respect to all newly hired em- 7 ployees and employees with expiring employ- 8 ment authorization. 9 ‘‘(H) WAIVER.— 10 ‘‘(i) AUTHORIZATION.—The Secretary 11 of Homeland Security may waive or delay 12 the participation requirements under this 13 paragraph with respect to any employer or 14 class of employers if the Secretary provides 15 notice to Congress of such waiver before 16 the date on which such waiver is granted. 17 ‘‘(ii) REQUIREMENT.—The Secretary 18 of Homeland Security shall waive or delay 19 the participation requirements under this 20 paragraph with respect to any employer or 21 class of employers— 22 ‘‘(I) until the date on which the 23 Comptroller General of the United 24 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00231 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 232 •S 1258 IS States submits the initial certification 1 under paragraph (10)(E); and 2 ‘‘(II) during any year in which 3 the Comptroller General fails to sub- 4 mit a certification under such para- 5 graph. 6 ‘‘(I) IMMIGRATION LAW VIOLATORS.—An 7 order finding any employer to have violated sec- 8 tion 274A, 274B, or 274C shall require the em- 9 ployer to participate in the System with respect 10 to newly hired employees and employees with 11 expiring employment authorization, if such em- 12 ployer is not otherwise required to participate 13 in the System by this section. The Secretary 14 shall monitor such employer’s compliance with 15 System procedures. 16 ‘‘(3) PARTICIPATION IN THE SYSTEM.—The 17 Secretary may— 18 ‘‘(A) permit any employer that is not re- 19 quired under this section to participate in the 20 System to do so on a voluntary basis; and 21 ‘‘(B) require any employer that is required 22 to participate in the System with respect to its 23 newly hired employees also to do so with respect 24 to its current workforce if the employer is de- 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00232 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 233 •S 1258 IS termined by the Secretary or other appropriate 1 authority to have engaged in any violation of 2 the immigration laws. 3 ‘‘(4) CONSEQUENCE OF FAILURE TO PARTICI- 4 PATE.—If an employer is required under this sub- 5 section to participate in the System and fails to 6 comply with the requirements of such program with 7 respect to an individual— 8 ‘‘(A) such failure shall be treated as a vio- 9 lation of subsection (a)(1)(B) with respect to 10 that individual, and 11 ‘‘(B) a rebuttable presumption is created 12 that the employer has violated paragraph 13 (1)(A) or (2) of subsection (a), except in the 14 case of any criminal prosecution. 15 ‘‘(5) PROCEDURES FOR PARTICIPANTS IN THE 16 SYSTEM.— 17 ‘‘(A) IN GENERAL.—An employer partici- 18 pating in the System shall register such partici- 19 pation with the Secretary and conform to the 20 following procedures in the event of hiring any 21 individual for employment in the United 22 States— 23 ‘‘(i) REGISTRATION OF EMPLOYERS.— 24 The Secretary, through notice in the Fed- 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00233 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 234 •S 1258 IS eral Register, shall prescribe procedures 1 that employers shall follow to register with 2 the System. In prescribing these proce- 3 dures, the Secretary shall have authority to 4 require employers to provide— 5 ‘‘(I) employer’s name; 6 ‘‘(II) employer’s Employment 7 Identification Number (EIN) and 8 such other employer identification in- 9 formation as the Secretary may des- 10 ignate; 11 ‘‘(III) company address; 12 ‘‘(IV) name, date of birth, and 13 position of the employer’s employees 14 accessing the System; 15 ‘‘(V) the information described in 16 subclauses (I) through (IV) of this 17 clause with respect to any agent, con- 18 tractor, or other service provider ac- 19 cessing the System on the employer’s 20 behalf; and 21 ‘‘(VI) such other information as 22 the Secretary deems necessary to en- 23 sure proper use and security of the 24 System. 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00234 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 235 •S 1258 IS ‘‘(ii) UPDATING INFORMATION.—The 1 employer is responsible for providing notice 2 of any change to the information required 3 under subclauses (I) through (V) of clause 4 (i) before conducting any further inquiries 5 within the System, or on such other sched- 6 ule as the Secretary may provide. 7 ‘‘(iii) TRAINING.—The Secretary shall 8 require employers to undergo such training 9 to ensure proper use, protection of civil 10 rights and civil liberties, privacy, integrity 11 and security of the System. To the extent 12 practicable, such training shall be made 13 available electronically. 14 ‘‘(iv) NOTIFICATION TO EMPLOY- 15 EES.—The employer shall post notice or 16 otherwise inform individuals hired for em- 17 ployment of the use of the System, that 18 the System may be used for immigration 19 enforcement purposes, and that the System 20 cannot be used to discriminate or to take 21 adverse action against U.S. citizens or em- 22 ployment authorized aliens. 23 ‘‘(v) PROVISION OF ADDITIONAL IN- 24 FORMATION.—The employer shall obtain 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00235 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 236 •S 1258 IS from the individual (and the individual 1 shall provide) and shall record in such 2 manner as the Secretary may specify— 3 ‘‘(I) the individual’s Social Secu- 4 rity account number, or any other in- 5 formation relevant to determining citi- 6 zenship as the Secretary of Homeland 7 Security may specify, 8 ‘‘(II) if the individual does not 9 attest to United States nationality 10 under subsection (c)(2), such identi- 11 fication or authorization number es- 12 tablished by the Department of 13 Homeland Security as the Secretary 14 of Homeland Security shall specify, 15 and 16 ‘‘(III) such other information as 17 the Secretary may require to deter- 18 mine the identity and employment au- 19 thorization of an employee. 20 ‘‘(vi) PRESENTATION OF DOCUMENTA- 21 TION.—The employer, and the individual 22 whose identity and employment eligibility 23 are being confirmed, shall fulfill the re- 24 quirements of subsection (c). 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00236 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 237 •S 1258 IS ‘‘(B) SEEKING CONFIRMATION.— 1 ‘‘(i) The employer shall use the Sys- 2 tem to provide to the Secretary all required 3 information in order to initiate confirma- 4 tion of the identity and employment eligi- 5 bility of any individual no earlier than the 6 date upon which the individual has accept- 7 ed an offer of employment, and no later 8 than 3 business days, or such other rea- 9 sonable period as the Secretary may pro- 10 vide, after the date when employment be- 11 gins. An employer may not, however, make 12 the starting date of an individual’s employ- 13 ment or training or any other term and 14 condition of employment dependent on the 15 receipt of a confirmation of identity and 16 employment eligibility. 17 ‘‘(ii) For reverification of an indi- 18 vidual with a limited period of employment 19 authorization, all required System proce- 20 dures shall be initiated no later than 3 21 business days after the date the individ- 22 ual’s employment authorization expires. 23 ‘‘(iii) For those employers required by 24 the Secretary to verify their entire work- 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00237 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 238 •S 1258 IS force, the System can be used for initial 1 verification of an individual hired before 2 the employer is subject to the System, and 3 the employer shall initiate all required pro- 4 cedures on or before such date as the Sec- 5 retary shall specify. 6 ‘‘(iv) The Secretary shall provide, and 7 the employer shall utilize, as part of the 8 System, a method of notifying employers of 9 a confirmation or nonconfirmation of an 10 individual’s identity and employment eligi- 11 bility, or a notice that further action is re- 12 quired to verify such identity or employ- 13 ment eligibility (‘further action notice’). 14 The Secretary and the Commissioner shall 15 establish procedures to directly notify the 16 individual, as well as the employer, of a 17 confirmation, nonconfirmation, or further 18 action notice, and provide information 19 about filing an administrative appeal pur- 20 suant to paragraph (7). The Secretary and 21 the Commissioner may provide for a 22 phased-in implementation of the notifica- 23 tion requirements of this clause as appro- 24 priate, but the notification system shall 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00238 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 239 •S 1258 IS cover all inquiries not later than 5 years 1 after the date of the enactment of the CIR 2 Act of 2011. 3 ‘‘(C) CONFIRMATION OR NONCONFIRMA- 4 TION.— 5 ‘‘(i) INITIAL RESPONSE.—The System 6 shall provide a confirmation of an individ- 7 ual’s identity and employment eligibility or 8 a further action notice at the time of the 9 inquiry, unless for technological reasons or 10 due to unforeseen circumstances, the Sys- 11 tem is unable to provide such confirmation 12 or further action notice. In such situations, 13 the System shall provide a confirmation or 14 further action notice within 3 business 15 days of the initial inquiry. If providing a 16 confirmation or further action notice, the 17 System shall provide an appropriate code 18 indicating such confirmation or such fur- 19 ther action notice. 20 ‘‘(ii) CONFIRMATION UPON INITIAL 21 INQUIRY.—When the employer receives an 22 appropriate confirmation of an individual’s 23 identity and employment eligibility under 24 the System, the employer shall record the 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00239 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 240 •S 1258 IS confirmation in such manner as the Sec- 1 retary may specify. 2 ‘‘(iii) FURTHER ACTION NOTICE AND 3 LATER CONFIRMATION OR NONCONFIRMA- 4 TION.— 5 ‘‘(I) NOTIFICATION AND AC- 6 KNOWLEDGMENT THAT FURTHER AC- 7 TION IS REQUIRED.—Not later than 3 8 business days after an employer’s re- 9 ceipt of a further action notice of an 10 individual’s identity or employment 11 eligibility under the System, the em- 12 ployer shall notify the individual for 13 whom the confirmation is sought of 14 the further action notice and any pro- 15 cedures specified by the Secretary for 16 addressing such notice. The further 17 action notice shall be given to the in- 18 dividual in writing. The individual 19 shall affirmatively acknowledge in 20 writing, or in such other manner as 21 the Secretary may specify, the receipt 22 of the further action notice from the 23 employer. If the individual refuses to 24 acknowledge the receipt of the further 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00240 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 241 •S 1258 IS action notice, or acknowledges in writ- 1 ing that he or she will not contest the 2 further action notice under subclause 3 (II), the employer shall notify the Sec- 4 retary in such manner as the Sec- 5 retary may specify. 6 ‘‘(II) CONTEST.—Not later than 7 15 business days after receiving noti- 8 fication of a further action notice 9 under subclause (I), the individual 10 shall contact the appropriate Federal 11 agency and, if the Secretary so re- 12 quires, appear in person for purposes 13 of verifying the individual’s identity 14 and employment eligibility. The em- 15 ployer shall provide the individual 16 with time as needed during daytime 17 hours to contest the further action no- 18 tice. The Secretary, in consultation 19 with the Commissioner and other ap- 20 propriate Federal agencies, shall 21 specify an available secondary 22 verification procedure to confirm the 23 validity of information provided and 24 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00241 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 242 •S 1258 IS to provide a confirmation or noncon- 1 firmation. 2 ‘‘(III) NO CONTEST.—If the indi- 3 vidual refuses to acknowledge receipt 4 of the further action notice, acknowl- 5 edges that he or she will not contest 6 the further action notice as provided 7 in subclause (I), or does not contact 8 the appropriate Federal agency within 9 the period specified in subclause (II), 10 a nonconfirmation shall issue. The 11 employer shall record the noncon- 12 firmation in such manner as the Sec- 13 retary may specify and terminate the 14 individual’s employment. An individ- 15 ual’s failure to contest a further ac- 16 tion notice shall not be considered an 17 admission of guilt with respect to any 18 violation of this section or any provi- 19 sion of law. 20 ‘‘(IV) CONFIRMATION OR NON- 21 CONFIRMATION.—Unless the period is 22 extended in accordance with this sub- 23 clause, the System shall provide a 24 confirmation or nonconfirmation with- 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00242 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 243 •S 1258 IS in 15 business days from the date 1 that the individual contests the fur- 2 ther action notice under subclause 3 (II). If the Secretary determines that 4 good cause exists, including to permit 5 the individual to obtain and provide 6 needed evidence of identity or employ- 7 ment eligibility, the Secretary shall ex- 8 tend the period for providing con- 9 firmation or nonconfirmation for stat- 10 ed periods beyond 15 business days. 11 When confirmation or nonconfirma- 12 tion is provided, the confirmation sys- 13 tem shall provide an appropriate code 14 indicating such confirmation or non- 15 confirmation. 16 ‘‘(V) RE-EXAMINATION.—Noth- 17 ing in this section shall prevent the 18 Secretary from establishing proce- 19 dures to reexamine a case where a 20 confirmation or nonconfirmation has 21 been provided if subsequently received 22 information indicates that the con- 23 firmation or nonconfirmation may not 24 have been correct. 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00243 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 244 •S 1258 IS ‘‘(VI) EMPLOYEE PROTEC- 1 TIONS.—In no case shall an employer 2 terminate employment or take any 3 other adverse action against an indi- 4 vidual solely because of a failure of 5 the individual to have identity and 6 employment eligibility confirmed 7 under this subsection until a noncon- 8 firmation has been issued, and if the 9 further action notice was contested, 10 the period to timely file an adminis- 11 trative appeal has expired without an 12 appeal, or in the case where an ad- 13 ministrative appeal or an action for 14 judicial review has been filed, or the 15 stay of the nonconfirmation has been 16 terminated. 17 ‘‘(iv) NOTICE OF NONCONFIRMA- 18 TION.—Not later than 3 business days 19 after an employer’s receipt of a noncon- 20 firmation, the employer shall notify the in- 21 dividual who is the subject of the noncon- 22 firmation, and provide information about 23 filing an administrative appeal pursuant to 24 paragraph (7). The nonconfirmation notice 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00244 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 245 •S 1258 IS shall be given to the individual in writing. 1 The individual shall affirmatively acknowl- 2 edge in writing, or in such other manner 3 as the Secretary may specify, the receipt of 4 the nonconfirmation notice from the em- 5 ployer. If the individual refuses or fails to 6 acknowledge the receipt of the noncon- 7 firmation notice, the employer shall notify 8 the Secretary in such manner as the Sec- 9 retary may specify. 10 ‘‘(D) CONSEQUENCES OF NONCONFIRMA- 11 TION.— 12 ‘‘(i) TERMINATION OF CONTINUED 13 EMPLOYMENT.—Except as provided in 14 clause (iii), if the employer has received a 15 nonconfirmation regarding an individual 16 and has notified the individual as required 17 by subparagraph (C)(iv), the employer 18 shall terminate employment of the indi- 19 vidual upon the expiration of the time pe- 20 riod as specified in paragraph (7)(A) for 21 filing an administrative appeal, or imme- 22 diately if the further action notice was not 23 contested. 24 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00245 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 246 •S 1258 IS ‘‘(ii) CONTINUED EMPLOYMENT 1 AFTER NONCONFIRMATION.—If the em- 2 ployer, in violation of clause (i), continues 3 to employ an individual after receiving 4 nonconfirmation, a rebuttable presumption 5 is created that the employer has violated 6 subsections (a)(1)(A) and (a)(2) of this 7 section. The previous sentence shall not 8 apply in any prosecution under subsection 9 (l)(1) of this section. 10 ‘‘(iii) EFFECT OF ADMINISTRATIVE 11 APPEAL AND JUDICIAL REVIEW.—If an in- 12 dividual files an administrative appeal of 13 the nonconfirmation within the time period 14 specified in paragraph (7)(A) and provides 15 a copy of such appeal to the employer, the 16 employer shall not terminate the individ- 17 ual’s employment under this subparagraph 18 prior to the resolution of the administra- 19 tive appeal or an action for judicial review 20 under paragraph (8)(A) unless the Sec- 21 retary or Commissioner terminates the 22 stay under paragraph (7)(B). 23 ‘‘(E) OBLIGATION TO RESPOND TO QUE- 24 RIES AND ADDITIONAL INFORMATION.— 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00246 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 247 •S 1258 IS ‘‘(i) Employers are required to comply 1 with requests for information from the 2 Secretary, including queries concerning 3 current and former employees (within the 4 time frame during which records are re- 5 quired to be maintained under this section 6 regarding such former employees) that re- 7 late to the functioning of the System, the 8 accuracy of the responses provided by the 9 System, and any suspected misuse, dis- 10 crimination, fraud, or identity theft in the 11 use of the System. Failure to comply with 12 such a request is a violation of section 13 (a)(1)(B). 14 ‘‘(ii) Individuals being verified 15 through the System may be required to 16 take further action to address irregularities 17 identified by the Secretary or the Commis- 18 sioner in the documents relied upon for 19 purposes of subsection (c). The employer 20 shall communicate to the individual within 21 3 business days any such requirement for 22 further actions and shall record the date 23 and manner of such communication. The 24 individual shall acknowledge in writing, or 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00247 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 248 •S 1258 IS in such other manner as the Secretary may 1 specify, the receipt of this communication 2 from the employer. Failure to communicate 3 such a requirement is a violation of section 4 (a)(1)(B). 5 ‘‘(iii) The Secretary is authorized, 6 with notice to the public provided in the 7 Federal Register, to implement, clarify, 8 and supplement the requirements of this 9 paragraph in order to facilitate the func- 10 tioning, accuracy, and fairness of the Sys- 11 tem or to prevent misuse, discrimination, 12 fraud, or identity theft in the use of the 13 System. 14 ‘‘(F) The Secretary may establish a proc- 15 ess to certify, on an annual basis or such other 16 time frame as the Secretary may provide, des- 17 ignated agents and other System service pro- 18 viders seeking access to the System to perform 19 verification queries on behalf of employers, 20 based upon training, usage, and security stand- 21 ards designated by the Secretary. 22 ‘‘(G) No later than 3 months after the 23 date of the enactment of this section, the Sec- 24 retary of Homeland Security, in consultation 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00248 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 249 •S 1258 IS with the Secretary of Labor, the Secretary of 1 Agriculture, the Commissioner of Social Secu- 2 rity, the Attorney General, the Equal Employ- 3 ment Opportunity Commission, Office of Spe- 4 cial Counsel for Unfair Immigration Related 5 Employment Practices, and the Administrator 6 of the Small Business Administration, shall 7 commence a campaign to disseminate informa- 8 tion respecting the procedures, rights, and rem- 9 edies prescribed under this section. Such cam- 10 paign shall be aimed at increasing the knowl- 11 edge of employers, employees, and the general 12 public concerning employer and employee 13 rights, responsibilities, and remedies under this 14 section. The Secretary shall assess the success 15 of the campaign in achieving its goals. 16 ‘‘(i) In order to carry out and assess 17 the campaign under this paragraph, the 18 Secretary of Homeland Security may, to 19 the extent deemed appropriate and subject 20 to the availability of appropriations, con- 21 tract with public and private organizations 22 for outreach and assessment activities 23 under the campaign. 24 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00249 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 250 •S 1258 IS ‘‘(ii) There are authorized to be ap- 1 propriated to carry out this paragraph 2 $40,000,000 for each fiscal year 2012 3 through 2014. 4 ‘‘(H) Based on a regular review of the Sys- 5 tem and the document verification procedures 6 to identify misuse or fraudulent use and to as- 7 sess the security of the documents and proc- 8 esses being used to establish identity or employ- 9 ment authorization, the Secretary, in consulta- 10 tion with the Commissioner, may modify the 11 documents or information that shall be pre- 12 sented to the employer, the information that 13 shall be provided to the System by the em- 14 ployer, and the procedures that shall be fol- 15 lowed by employers with respect to any aspect 16 of the System if the Secretary, in the Sec- 17 retary’s discretion, concludes that the modifica- 18 tion is necessary to ensure that the System ac- 19 curately and reliably determines the identity 20 and employment authorization of employees 21 while providing protection against misuse, dis- 22 crimination, fraud, and identity theft. 23 ‘‘(I) Subject to appropriate safeguards to 24 prevent misuse of the system, the Secretary, in 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00250 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 251 •S 1258 IS consultation with the Commissioner, shall es- 1 tablish a secure self-verification procedure to 2 permit an individual who seeks to verify the in- 3 dividual’s own employment eligibility prior to 4 obtaining or changing employment to contact 5 the appropriate agency and, in a timely man- 6 ner, correct or update the information used by 7 the System. 8 ‘‘(J) The Secretary may, upon notice pro- 9 vided in the Federal Register, adjust the time 10 periods described in this paragraph. 11 ‘‘(6) PROTECTION FROM LIABILITY FOR AC- 12 TIONS TAKEN ON THE BASIS OF INFORMATION PRO- 13 VIDED BY THE SYSTEM.—No employer participating 14 in the System who complies with all System proce- 15 dures as required in this Act shall be liable under 16 this Act for any employment-related action taken 17 with respect to the employee in good faith reliance 18 on information provided through the confirmation 19 system. 20 ‘‘(7) ADMINISTRATIVE REVIEW.— 21 ‘‘(A) IN GENERAL.—An individual who is 22 notified pursuant to paragraph (5)(C)(iv) of a 23 nonconfirmation by the employer may, not later 24 than 15 business days after the date that such 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00251 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 252 •S 1258 IS notice is received, file an administrative appeal 1 of such nonconfirmation. An individual subject 2 to a nonconfirmation may file an appeal thereof 3 after the 15-day period if the appeal is accom- 4 panied by evidence that the individual did not 5 receive timely notice of a nonconfirmation, or 6 that there was good cause for the failure to file 7 an appeal within the 15-day period. All admin- 8 istrative appeals shall be filed as follows: 9 ‘‘(i) CITIZENS OR NATIONALS OF THE 10 UNITED STATES.—An individual claiming 11 to be a citizen or national of the United 12 States shall file the administrative appeal 13 with the Commissioner. 14 ‘‘(ii) ALIENS.—An individual claiming 15 to be an alien authorized to work in the 16 United States shall file the administrative 17 appeal with the Secretary. 18 ‘‘(B) ADMINISTRATIVE STAY OF NONCON- 19 FIRMATION.—The nonconfirmation shall be 20 automatically stayed upon the timely filing of 21 an administrative appeal, and the stay shall re- 22 main in effect until the resolution of the appeal, 23 unless the Secretary or the Commissioner ter- 24 minates the stay based on a determination that 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00252 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 253 •S 1258 IS the administrative appeal is frivolous or filed 1 for purposes of delay. 2 ‘‘(C) REVIEW FOR ERROR.—The Secretary 3 and the Commissioner shall develop procedures 4 for resolving administrative appeals regarding 5 nonconfirmations based upon the information 6 that the individual has provided, including any 7 additional evidence or argument that was not 8 previously considered. Any such additional evi- 9 dence or argument shall be filed within 15 days 10 of the date the appeal was originally filed. Ap- 11 peals shall be resolved within 30 days after the 12 individual has submitted all evidence and argu- 13 ments he or she wishes to submit, or has stated 14 in writing that there is no additional evidence 15 that he or she wishes to submit. The Secretary 16 and the Commissioner may, on a case by case 17 basis for good cause, extend the filing and sub- 18 mission period in order to ensure accurate reso- 19 lution of an appeal before him or her. Adminis- 20 trative review under this paragraph shall be 21 limited to whether the nonconfirmation notice is 22 supported by the weight of the evidence. 23 ‘‘(D) COMPENSATION FOR ERROR.—If the 24 individual was denied a stay under subpara- 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00253 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 254 •S 1258 IS graph (B) and the Secretary makes a deter- 1 mination that the nonconfirmation issued for an 2 individual was not caused by an act or omission 3 of the individual or the employer, the Secretary 4 shall compensate the individual for lost wages 5 in an amount not exceeding $75,000 and rea- 6 sonable costs and attorneys’ fees incurred dur- 7 ing administrative and judicial review which 8 shall not exceed $50,000. Amounts under this 9 clause may be adjusted to account for inflation 10 pursuant to the US Consumer Price Index—All 11 Urban Consumers (CPI–U) compiled by the 12 Bureau of Labor Statistics. 13 ‘‘(i) CALCULATION OF LOST WAGES.— 14 Lost wages shall be calculated based on 15 the wage rate and work schedule that pre- 16 vailed prior to termination. The individual 17 shall be compensated for wages lost begin- 18 ning on the first scheduled work day after 19 employment was terminated and ending 20 180 days after completion of the adminis- 21 trative review process described in this 22 paragraph, or judicial review if any, or the 23 day after the individual is reinstated or ob- 24 tains employment elsewhere, whichever oc- 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00254 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 255 •S 1258 IS curs first. If the individual obtains employ- 1 ment elsewhere at a lower wage rate, the 2 individual shall be compensated for the dif- 3 ference in wages for the period ending 180 4 days after completion of the administrative 5 review process or judicial review, if any. 6 ‘‘(ii) LIMITATION ON COMPENSA- 7 TION.—For purposes of determining an in- 8 dividual’s compensation for the loss of em- 9 ployment, such compensation shall not in- 10 clude any period in which the individual 11 was ineligible for employment in the 12 United States. 13 ‘‘(iii) SOURCE OF FUNDS.—Com- 14 pensation or reimbursement provided 15 under this paragraph shall not be provided 16 from funds appropriated in annual appro- 17 priations Acts to the Secretary for the De- 18 partment of Homeland Security. 19 ‘‘(E) TEMPORARY STAY OF FINAL ADMIN- 20 ISTRATIVE DECISION DENYING APPEAL.—If the 21 appeal is denied, the Secretary shall stay the 22 decision for a period of 30 days to permit the 23 individual to seek judicial review of the decision 24 under paragraph (8)(A). If a judicial action is 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00255 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 256 •S 1258 IS brought within this period, the stay shall re- 1 main in effect until the resolution of the case, 2 unless the Court terminates the stay based on 3 a determination that the action for judicial re- 4 view is frivolous or filed for purposes of delay. 5 ‘‘(8) JUDICIAL REVIEW.— 6 ‘‘(A) IN GENERAL.—After the Secretary or 7 the Commissioner makes a final determination 8 on an appeal filed by an individual under para- 9 graph (7), the individual may obtain judicial re- 10 view of such determination in a civil action 11 commenced not later than 30 days after notice 12 of such decision. 13 ‘‘(B) JURISDICTION.—A civil action for 14 such judicial review shall be brought in the dis- 15 trict court of the United States for the judicial 16 district in which the plaintiff resides or, if the 17 plaintiff does not reside within any such judicial 18 district, in the District Court of the United 19 States for the District of Columbia. 20 ‘‘(C) SERVICE.—The defendant is either 21 the Secretary or the Commissioner, but not 22 both, depending upon who issued the adminis- 23 trative order under paragraph (7). In addition 24 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00256 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 257 •S 1258 IS to serving the defendant, the plaintiff shall also 1 serve the Attorney General. 2 ‘‘(D) ANSWER.—As part of the Secretary’s 3 or the Commissioner’s answer to a complaint 4 for such judicial review, the Secretary or the 5 Commissioner shall file a certified copy of the 6 administrative record compiled during the ad- 7 ministrative review under paragraph (7), includ- 8 ing the evidence upon which the findings and 9 decision complained of are based. The court 10 shall have power to enter, upon the pleadings 11 and the administrative record, a judgment af- 12 firming or reversing the result of that adminis- 13 trative review, with or without remanding the 14 cause for a rehearing. 15 ‘‘(E) STANDARD OF REVIEW.— 16 ‘‘(i) The burden shall be on the plain- 17 tiff to show that the administrative order 18 was erroneous. Administrative findings of 19 fact are conclusive unless any reasonable 20 adjudicator would be compelled to conclude 21 to the contrary. The court, upon good 22 cause shown, may in its discretion remand 23 to the Secretary or the Commissioner for 24 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00257 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 258 •S 1258 IS additional fact-finding or other pro- 1 ceedings. 2 ‘‘(ii) If the plaintiff meets his or her 3 burden to show that the administrative 4 order was erroneous, the court shall, upon 5 request of the plaintiff, determine whether 6 the plaintiff can establish by the prepon- 7 derance of the evidence that the error was 8 caused by the decision rules, processes, or 9 procedures utilized by the System or erro- 10 neous system information that was not the 11 result of acts or omissions of the indi- 12 vidual. 13 ‘‘(F) COMPENSATION FOR ERROR.— 14 ‘‘(i) IN GENERAL.—In cases in which 15 the judicial review reverses the final deter- 16 mination of the Secretary or the Commis- 17 sioner made under paragraph (7), the indi- 18 vidual was denied a stay under subpara- 19 graph (B), and the court finds that the 20 final determination was erroneous by rea- 21 son of the decision rules, processes, or pro- 22 cedures utilized by the System or erro- 23 neous system information that was not the 24 result of acts or omissions of the indi- 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00258 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 259 •S 1258 IS vidual, the court may award to the indi- 1 vidual lost wages not exceeding $75,000, 2 reasonable costs and attorneys’ fees in- 3 curred during administrative and judicial 4 review which shall not exceed $50,000, and 5 compensatory damages in an amount 6 deemed necessary by the court. Amounts 7 under this clause may be adjusted to ac- 8 count for inflation pursuant to the US 9 Consumer Price Index—All Urban Con- 10 sumers (CPI–U) compiled by the Bureau 11 of Labor Statistics. 12 ‘‘(ii) CALCULATION OF LOST 13 WAGES.—Lost wages shall be calculated 14 based on the wage rate and work schedule 15 that prevailed prior to termination. The in- 16 dividual shall be compensated for wages 17 lost beginning on the first scheduled work 18 day after employment was terminated and 19 ending 180 days after completion of the ju- 20 dicial review described in this paragraph or 21 the day after the individual is reinstated or 22 obtains employment elsewhere, whichever 23 occurs first. If the individual obtains em- 24 ployment elsewhere at a lower wage rate, 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00259 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 260 •S 1258 IS the individual shall be compensated for the 1 difference in wages for the period ending 2 180 days after completion of the judicial 3 review process. No lost wages shall be 4 awarded for any period of time during 5 which the individual was not authorized to 6 be employed in the United States. 7 ‘‘(iii) PAYMENT OF COMPENSATION.— 8 Notwithstanding any other law, payment of 9 compensation for lost wages, costs and at- 10 torneys’ fees under this paragraph, or com- 11 promise settlements of the same, shall be 12 made as provided by section 1304 of title 13 31, United States Code. Appropriations 14 made available to the Secretary or the 15 Commissioner, accounts provided for under 16 section 286 of the Immigration and Na- 17 tionality Act (8 U.S.C. 1356), and funds 18 from the Federal Old-Age and Survivors 19 Insurance Trust Fund or the Federal Dis- 20 ability Insurance Trust Fund shall not be 21 available to pay such compensation. 22 ‘‘(iv) EXCLUSIVE REMEDY.—Awards 23 of compensation for lost wages, costs, and 24 attorneys’ fees under this paragraph shall 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00260 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 261 •S 1258 IS be the exclusive remedy for a finding under 1 clause (i) that a final determination of the 2 Secretary or the Commissioner made under 3 paragraph (7) was erroneous by reason of 4 the negligence or recklessness of the Sec- 5 retary or the Commissioner. 6 ‘‘(9) PRIVATE RIGHT OF ACTION.—If the non- 7 confirmation issued for an individual was caused by 8 negligence or other misconduct on the part of the 9 employer, the individual may seek recovery of dam- 10 ages, reinstatement, back pay, and other appropriate 11 remedies in a civil action against the employer. Such 12 action shall be commenced not later than 90 days 13 after notice of the Secretary’s or the Commissioner’s 14 decision on an administrative appeal under para- 15 graph (7) or the Court’s decision in an action for ju- 16 dicial review under paragraph (8), or 90 days after 17 termination of the individual as a result of the final 18 nonconfirmation if no such administrative appeal or 19 action for judicial review is taken. The action shall 20 be brought in the district court of the United States 21 for the judicial district in which the plaintiff resides 22 or, if the plaintiff does not reside within any such 23 judicial district, in the District Court of the United 24 States for the District of Columbia. In such action, 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00261 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 262 •S 1258 IS no prior administrative or judicial finding relating to 1 the employer in any proceeding to which the em- 2 ployer was not a party may be given any res judicata 3 or collateral estoppel effect against the employer. 4 ‘‘(10) ANNUAL STUDY AND REPORT.— 5 ‘‘(A) REQUIREMENT FOR STUDY.—The 6 Comptroller General of the United States shall 7 conduct an annual study of the System as de- 8 scribed in this paragraph. 9 ‘‘(B) PURPOSE OF THE STUDY.—The 10 Comptroller General shall, for each year, under- 11 take a study to determine whether the System 12 meets the following requirements: 13 ‘‘(i) DEMONSTRATED ACCURACY OF 14 THE DATABASES.—New information and 15 information changes submitted by an indi- 16 vidual to the System is updated in all of 17 the relevant databases not later than 3 18 working days after submission in at least 19 99 percent of all cases. 20 ‘‘(ii) LOW ERROR RATES AND COMPLI- 21 ANCE WITH SYSTEM RULES.— 22 ‘‘(I) RATES OF INCORRECT NON- 23 CONFIRMATION AND CONFIRMATION 24 NOTICES.—That, during a year, the 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00262 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 263 •S 1258 IS number of incorrect tentative noncon- 1 firmations provided through the Sys- 2 tem is not more than 1 percent. 3 ‘‘(II) STABILITY OR IMPROVE- 4 MENT IN ERROR RATES.—That, dur- 5 ing a year— 6 ‘‘(aa) the rate of incorrect 7 tentative nonconfirmations shall 8 not have increased by more than 9 3 percent compared to the pre- 10 vious year. 11 ‘‘(bb) the rate at which un- 12 authorized immigrants receive in- 13 correct confirmations shall not 14 have increased by more than 3 15 percent compared to the previous 16 year. 17 ‘‘(III) EMPLOYER COMPLI- 18 ANCE.—That, during the year, not 19 more than 10 percent of employers 20 are found in violation of section 21 171(a)(4). 22 ‘‘(iii) PROTECTIONS FOR AMERICAN 23 WORKERS.— 24 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00263 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 264 •S 1258 IS ‘‘(I) NO DISCRIMINATION BASED 1 ON SYSTEM OPERATIONS.—The Sys- 2 tem has not resulted in increased dis- 3 crimination or cause reasonable em- 4 ployers to conclude that individuals of 5 certain races or ethnicities are more 6 likely to have difficulties when offered 7 employment caused by the operation 8 of the System. 9 ‘‘(II) NO INCREASE IN EM- 10 PLOYER NONCOMPLIANCE.—The Sys- 11 tem has not resulted in increased em- 12 ployer noncompliance with system 13 rules, including not notifying workers 14 of tentative nonconfirmations, adverse 15 employment consequences due to ten- 16 tative nonconfirmations, prescreening, 17 and reverification of workers against 18 System rules. 19 ‘‘(III) NO INCREASE IN IDENTITY 20 FRAUD AND THEFT.—The System has 21 not and will not result in increased 22 identity fraud or theft. 23 ‘‘(iv) PROTECTION OF WORKERS’ PRI- 24 VATE INFORMATION.—At least 97 percent 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00264 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 265 •S 1258 IS of employers who participate in the System 1 are in full compliance with the privacy re- 2 quirements described in this subsection. 3 ‘‘(v) PROTECTING SMALL BUSI- 4 NESSES.—The System will not result in 5 lost productivity or replacement and re- 6 training costs due to United States citizen 7 and work-authorized immigrants being ter- 8 minated due to database errors. 9 ‘‘(vi) PROTECTING AMERICANS ACCESS 10 TO PRODUCE AND SMALL FAMILY 11 FARMS.— 12 ‘‘(I) NO INCREASE IN FOOD 13 PRICES.—The System has not and 14 will not increase the cost of agricul- 15 tural products by more than 5 per- 16 cent. 17 ‘‘(II) PROTECTING SMALL FARM- 18 ERS.—Use of the System will not put 19 small family farms out of business. 20 ‘‘(III) PROTECTING JOBS.—Use 21 of the System will not cause Ameri- 22 cans to lose jobs related to the agri- 23 culture industry. 24 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00265 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 266 •S 1258 IS ‘‘(vii) ADEQUATE AGENCY STAFFING 1 AND FUNDING.—The Secretary and Com- 2 missioner of Social Security have sufficient 3 funding to meet all of the deadlines and re- 4 quirements of this subsection. 5 ‘‘(C) REQUIREMENT FOR INDEPENDENT 6 STUDY.—The determinations described in 7 clauses (i) through (vi) of subparagraph (B) 8 shall be based on an independent study commis- 9 sioned by the Comptroller General in each 10 phase of expansion of the System. 11 ‘‘(D) CONSULTATION.—In conducting a 12 study under this paragraph, the Comptroller 13 General shall consult with representatives of 14 business, labor, immigrant communities, State 15 governments, privacy advocates, and appro- 16 priate departments of the United States. 17 ‘‘(E) REPORTS.—Not later than 21 18 months after the date of the enactment of the 19 Act, and annually thereafter, the Comptroller 20 General shall submit to the Secretary and to 21 Congress a report containing the findings of the 22 study carried out under this paragraph and 23 shall include the following: 24 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00266 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 267 •S 1258 IS ‘‘(i) An assessment of the accuracy of 1 the databases utilized by the System and 2 of the timeliness and accuracy of the re- 3 sponses provided through the System to 4 employers. 5 ‘‘(ii) An assessment of the privacy and 6 confidentiality of the System and of the 7 overall security of the System with respect 8 to cybertheft and theft or misuse of private 9 data. 10 ‘‘(iii) An assessment of whether the 11 System is being implemented in a non- 12 discriminatory and nonretaliatory manner. 13 ‘‘(iv) An assessment of the most com- 14 mon causes for the erroneous issuance of 15 nonconfirmations by the System and rec- 16 ommendations to correct such causes. 17 ‘‘(v) The recommendations of the 18 Comptroller General regarding whether or 19 not the System should be modified prior to 20 further expansion. 21 ‘‘(F) CERTIFICATION.—If the Comptroller 22 General determines that the System meets the 23 requirements set out in clauses (i) through (vii) 24 of subparagraph (B) for 1 year, the Comp- 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00267 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 268 •S 1258 IS troller shall certify such determination and sub- 1 mit such certification to Congress with the re- 2 port required by subparagraph (E). 3 ‘‘(11) ANNUAL AUDIT AND REPORT.— 4 ‘‘(A) PURPOSE OF THE AUDIT AND RE- 5 PORT.—The Office for Civil Rights and Civil 6 Liberties shall conduct annual audits of E– 7 Verify described in section 403(a) of the Illegal 8 Immigration Reform and Responsibility Act of 9 1996, Public Law No. 104–208, Div. C, 110 10 Stat. 3009–546, to assess employer compliance 11 with System requirements, including civil rights 12 and civil liberties protections, and compliance 13 with the System rules and procedures set forth 14 in the Memorandum of Understanding between 15 employers and the Social Security Administra- 16 tion and the Department of Homeland Security. 17 ‘‘(B) REQUIREMENTS OF AUDIT.—Annual 18 audits shall include, but are not limited to, the 19 following activities: 20 ‘‘(i) Use of testers to check if employ- 21 ers’ are using E–Verify as outlined in the 22 Memorandum of Understanding between 23 employers and the Department of Home- 24 land Security and the Social Security Ad- 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00268 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 269 •S 1258 IS ministration, including if employers are 1 misusing of the system to prescreen job 2 applicants, if employers are giving proper 3 notification to employees’ regarding non- 4 confirmations, and if employers are taking 5 adverse actions against workers based 6 upon nonconfirmations. 7 ‘‘(ii) Random audits of employers to 8 confirm that employers are using the sys- 9 tem as outlined in the Memorandum of 10 Understanding and in a manner consistent 11 with civil rights and civil liberties protec- 12 tions; and 13 ‘‘(iii) Periodic audits of employers for 14 which the Special Counsel has received in- 15 formation or complaints and/or actual 16 charges of citizenship/national origin dis- 17 crimination or document abuse. 18 ‘‘(C) AUTHORITY OF OFFICE FOR CIVIL 19 RIGHTS AND CIVIL LIBERTIES.—The Office 20 shall have the authority to obtain from users of 21 E–Verify relevant documents and testimony and 22 answers to written interrogatories. The Office 23 shall also have the authority to conduct site vis- 24 its, and interview employees. 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00269 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 270 •S 1258 IS ‘‘(D) FAILURE OF EMPLOYERS TO CO- 1 OPERATE.—Employers that fail to cooperate 2 with the Office for Civil Rights and Civil Lib- 3 erties shall be noted in the annual report set 4 forth below in this subsection. 5 ‘‘(E) REQUIREMENT FOR REPORTS.—Not 6 later than 18 months after the date of the en- 7 actment of the Act, and annually thereafter, the 8 Office for Civil Rights and Civil Liberties shall 9 submit a report to the President of the Senate, 10 the Speaker of the House of Representatives, 11 and the appropriate committees and sub- 12 committees of Congress that contains the find- 13 ings of the audit carried out under this para- 14 graph. 15 ‘‘(12) MANAGEMENT OF THE SYSTEM.— 16 ‘‘(A) IN GENERAL.—The Secretary is au- 17 thorized to establish, manage, and modify the 18 System, which shall— 19 ‘‘(i) respond to inquiries made by par- 20 ticipating employers at any time through 21 the internet, or such other means as the 22 Secretary may designate, concerning an in- 23 dividual’s identity and whether the indi- 24 vidual is authorized to be employed; 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00270 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 271 •S 1258 IS ‘‘(ii) maintain records of the inquiries 1 that were made, of confirmations provided 2 (or not provided), and of the codes pro- 3 vided to employers as evidence of their 4 compliance with their obligations under the 5 System; and 6 ‘‘(iii) provide information to, and re- 7 quire action by, employers and individuals 8 using the System. 9 ‘‘(B) DESIGN AND OPERATION OF SYS- 10 TEM.—The System shall be designed and oper- 11 ated— 12 ‘‘(i) to maximize its reliability and 13 ease of use by employers consistent with 14 protecting the privacy and security of the 15 underlying information, and ensuring full 16 notice of such use to employees; 17 ‘‘(ii) to maximize its ease of use by 18 employees, including notification of its use, 19 of results, and ability to challenge results; 20 ‘‘(iii) to respond accurately to all in- 21 quiries made by employers on whether in- 22 dividuals are authorized to be employed 23 and to register any times when the system 24 is unable to receive inquiries; 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00271 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 272 •S 1258 IS ‘‘(iv) to maintain appropriate adminis- 1 trative, technical, and physical safeguards 2 to prevent unauthorized disclosure of per- 3 sonal information, misuse by employers 4 and employees, and discrimination; 5 ‘‘(v) to allow for auditing of the use of 6 the System to detect misuse, discrimina- 7 tion, fraud, and identity theft, and to pre- 8 serve the integrity and security of the in- 9 formation in all of the System, including 10 but not limited to the following— 11 ‘‘(I) to develop and use tools and 12 processes to detect or prevent fraud 13 and identity theft, such as multiple 14 uses of the same identifying informa- 15 tion or documents to fraudulently gain 16 employment; 17 ‘‘(II) to develop and use tools 18 and processes to detect and prevent 19 misuse of the system by employers 20 and employees; 21 ‘‘(III) to develop tools and proc- 22 esses to detect anomalies in the use of 23 the system that may indicate potential 24 fraud or misuse of the system; and 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00272 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 273 •S 1258 IS ‘‘(IV) to audit documents and in- 1 formation submitted by employees to 2 employers, including authority to con- 3 duct interviews with employers and 4 employees, and obtain information 5 concerning employment from the em- 6 ployer; 7 ‘‘(vi) to confirm identity and employ- 8 ment authorization through verification 9 and comparison of records maintained by 10 the Secretary, other Federal departments, 11 states, or outlying possessions of the 12 United States, or other available informa- 13 tion, as determined necessary by the Sec- 14 retary, including— 15 ‘‘(I) records maintained by the 16 Social Security Administration; 17 ‘‘(II) birth and death records 18 maintained by vital statistics agencies 19 of any state or other United States 20 jurisdiction; 21 ‘‘(III) passport and visa records 22 (including photographs) maintained 23 by the Department of State; and 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00273 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 274 •S 1258 IS ‘‘(IV) state driver’s license or 1 identity card information (including 2 photographs) maintained by State de- 3 partments of motor vehicles; 4 ‘‘(vii) to confirm electronically the 5 issuance of the employment authorization 6 or identity document and to display the 7 digital photograph that the issuer placed 8 on the document so that the employer can 9 compare the photograph displayed to the 10 photograph on the document presented by 11 the employee. If a photograph is not avail- 12 able from the issuer, the Secretary shall 13 specify alternative procedures for con- 14 firming the authenticity of the document; 15 and 16 ‘‘(viii) to include, notwithstanding sec- 17 tion 6103 of title 26, U.S. Code, proce- 18 dures for verification by the Secretary of 19 the Treasury of the validity of any em- 20 ployer identification number and related 21 information provided by an employer to the 22 Secretary for the purpose of participating 23 in the System. 24 ‘‘(C) ACCESS TO INFORMATION.— 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00274 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 275 •S 1258 IS ‘‘(i) Notwithstanding any other provi- 1 sion of law, the Secretary of Homeland Se- 2 curity shall have access to relevant records 3 described in subparagraphs (B)(vi) and 4 (viii), for the purposes of preventing iden- 5 tity theft, fraud and misuse in the use of 6 the System and administering and enforc- 7 ing the provisions of this section governing 8 employment verification. Any governmental 9 agency or entity possessing such relevant 10 records shall provide such assistance and 11 cooperation in resolving further action no- 12 tices and nonconfirmations relating to such 13 records, or otherwise to improve the accu- 14 racy of the System, as the Secretary may 15 request. A state or other non-Federal juris- 16 diction that does not provide such access, 17 assistance, and cooperation shall not be eli- 18 gible for any grant or other program of fi- 19 nancial assistance administered by the Sec- 20 retary or by the Commissioner. 21 ‘‘(ii) The Secretary, in consultation 22 with the Commissioner and other appro- 23 priate Federal and State agencies, shall 24 develop policies and procedures to ensure 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00275 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 276 •S 1258 IS protection of the privacy and security of 1 personally identifiable information and 2 identifiers contained in the records 3 accessed or maintained by the System. The 4 Secretary, in consultation with the Com- 5 missioner and other appropriate Federal 6 and State agencies, shall develop and de- 7 ploy appropriate privacy and security 8 training for the Federal and State employ- 9 ees accessing the records under the Sys- 10 tem. 11 ‘‘(iii) The Secretary, acting through 12 the Chief Privacy Officer of the Depart- 13 ment of Homeland Security, shall conduct 14 regular privacy audits of the policies and 15 procedures established under clause (ii), 16 including any collection, use, dissemina- 17 tion, and maintenance of personally identi- 18 fiable information and any associated in- 19 formation technology systems, as well as 20 scope of requests for this information. The 21 Chief Privacy Officer shall review the re- 22 sults of the audits and recommend to the 23 Secretary any changes necessary to im- 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00276 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 277 •S 1258 IS prove the privacy protections of the pro- 1 gram. 2 ‘‘(D) RESPONSIBILITIES OF THE SEC- 3 RETARY OF HOMELAND SECURITY.— 4 ‘‘(i) As part of the System, the Sec- 5 retary shall maintain a reliable, secure 6 method, which, operating through the Sys- 7 tem and within the time periods specified, 8 compares the name, alien identification or 9 authorization number, or other information 10 as determined relevant by the Secretary, 11 provided in an inquiry against such infor- 12 mation maintained or accessed by the Sec- 13 retary in order to confirm (or not confirm) 14 the validity of the information provided, 15 the correspondence of the name and num- 16 ber, whether the alien is authorized to be 17 employed in the United States (or, to the 18 extent that the Secretary determines to be 19 feasible and appropriate, whether the 20 records available to the Secretary verify 21 the identity or status of a national of the 22 United States), and such other information 23 as the Secretary may prescribe. 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00277 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 278 •S 1258 IS ‘‘(ii) As part of the System, the Sec- 1 retary shall establish a reliable, secure 2 method, which, operating through the Sys- 3 tem, displays the digital photograph de- 4 scribed in subparagraph (B)(vii). 5 ‘‘(iii) The Secretary shall have author- 6 ity to prescribe when a confirmation, non- 7 confirmation, or further action notice shall 8 be issued. 9 ‘‘(iv) The Secretary shall perform reg- 10 ular audits under the System, as described 11 in subparagraph (B)(v) and shall utilize 12 the information obtained from such audits, 13 as well as any information obtained from 14 the Commissioner pursuant to section 174 15 of the Comprehensive Immigration Reform 16 Act of 2011, for the purposes of this sec- 17 tion, to administer and enforce the immi- 18 gration laws, and to ensure employee 19 rights are protected under the System. 20 ‘‘(v) The Secretary may make appro- 21 priate arrangements to allow employers or 22 employees who are otherwise unable to ac- 23 cess the System to use Federal Govern- 24 ment facilities or public facilities or other 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00278 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 279 •S 1258 IS available locations in order to utilize the 1 program. 2 ‘‘(vi) The Secretary shall, in consulta- 3 tion with the Commissioner, establish a 4 program which shall provide a reliable, se- 5 cure method by which victims of identity 6 fraud and other individuals may suspend 7 or limit the use of their Social Security ac- 8 count number or other identifying informa- 9 tion for System purposes. The Secretary 10 may implement the program on a limited 11 pilot program basis before making it fully 12 available to all individuals. 13 ‘‘(vii) The Secretary, in consultation 14 with the Commissioner of Social Security, 15 shall establish procedures for an Enhanced 16 Verification System under section 178 of 17 the Comprehensive Immigration Reform 18 Act of 2011. 19 ‘‘(viii) The Secretary and the Commis- 20 sioner shall establish a program in which 21 Social Security account numbers that have 22 been identified to be subject to unusual 23 multiple use in the System, or that are 24 otherwise suspected or determined to have 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00279 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 280 •S 1258 IS been compromised by identity fraud or 1 other misuse, shall be blocked from use for 2 System purposes unless the individual 3 using such number is able to establish, 4 through secure and fair additional security 5 procedures, that he or she is the legitimate 6 holder of the number. 7 ‘‘(ix) The Secretary shall establish a 8 monitoring and compliance unit to detect 9 and reduce identity fraud and other misuse 10 of the program. 11 ‘‘(x) The Secretary, acting through 12 the Officer for Civil Rights and Civil Lib- 13 erties of the Department of Homeland Se- 14 curity, shall conduct regular civil rights 15 and civil liberties assessments of the Sys- 16 tem, including participation by employers, 17 other private entities, other Federal agen- 18 cies, and state and local government. The 19 Officer shall review the results of the as- 20 sessment and recommend to the Secretary 21 any changes necessary to improve the civil 22 rights and civil liberties protections of the 23 program. 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00280 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 281 •S 1258 IS ‘‘(E) RESPONSIBILITIES OF THE SEC- 1 RETARY OF STATE.—As part of the System, the 2 Secretary of State shall provide to the Sec- 3 retary access to passport and visa information 4 as needed to confirm that a passport or pass- 5 port card presented under subsection (c)(1)(B) 6 confirms the identity of the subject of the Sys- 7 tem check, or that a passport, passport card or 8 visa photograph matches the Secretary of 9 State’s records, and shall provide such assist- 10 ance as the Secretary may request in order to 11 resolve further action notices or nonconfirma- 12 tions relating to such information. 13 ‘‘(F) UPDATING INFORMATION.—The 14 Commissioner and the Secretaries of Homeland 15 Security and State shall update their informa- 16 tion in a manner that promotes maximum accu- 17 racy and shall provide a process for the prompt 18 correction of erroneous information. 19 ‘‘(13) LIMITATION ON USE OF THE SYSTEM.— 20 Notwithstanding any other provision of law, nothing 21 in this subsection shall be construed to permit or 22 allow any department, bureau, or other agency of 23 the United States Government to utilize any infor- 24 mation, database, or other records assembled under 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00281 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 282 •S 1258 IS this subsection for any purpose other than for 1 verification as provided by this subsection the en- 2 forcement and administration of the immigration 3 laws, or the enforcement of Federal laws for viola- 4 tions relating to use of the System. 5 ‘‘(14) CONFORMING AMENDMENT.—Sections 6 401 to 405 of the Illegal Immigration Reform and 7 Immigrant Responsibility Act of 1996 (division C of 8 Public Law 104–208; 8 U.S.C. 1234a note) are re- 9 pealed. Nothing in this subsection may be construed 10 to limit the authority of the Secretary to allow or 11 continue to allow the participation in the System of 12 employers who have participated in the E–Verify 13 program established by such sections. 14 ‘‘(15) NONDISCRIMINATION.—The employer 15 shall use the procedures for the System specified in 16 this section for all employees without regard to race, 17 sex, national origin, or, unless specifically permitted 18 in this section, to citizenship status. 19 ‘‘(e) COMPLIANCE.— 20 ‘‘(1) COMPLAINTS AND INVESTIGATIONS.—The 21 Secretary of Homeland Security shall establish pro- 22 cedures— 23 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00282 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 283 •S 1258 IS ‘‘(A) for individuals and entities to file 1 complaints respecting potential violations of 2 subsections (a) or (f)(1); 3 ‘‘(B) for the investigation of those com- 4 plaints which the Secretary deems appropriate 5 to investigate; and 6 ‘‘(C) for such other investigations of viola- 7 tions of subsections (a) or (f)(1) as the Sec- 8 retary determines to be appropriate. 9 ‘‘(2) AUTHORITY IN INVESTIGATIONS.—In con- 10 ducting investigations and hearings under this sub- 11 section, immigration officers shall have reasonable 12 access to examine evidence of any employer being in- 13 vestigated. 14 ‘‘(3) JOINT EMPLOYMENT FRAUD TASK 15 FORCE.—The Secretary, in cooperation with the 16 Commissioner and Attorney General, and in con- 17 sultation with other relevant agencies, shall establish 18 a Joint Employment Fraud Task Force consisting 19 of, at a minimum, the System’s compliance per- 20 sonnel, immigration law enforcement officers, Spe- 21 cial Counsel for Unfair Immigration-Related Em- 22 ployment Practices personnel, Department of Home- 23 land Security Office for Civil Rights and Civil Lib- 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00283 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 284 •S 1258 IS erties personnel, and Social Security Administration 1 fraud division personnel. 2 ‘‘(4) COMPLIANCE PROCEDURES.— 3 ‘‘(A) PRE-PENALTY NOTICE.—If the Sec- 4 retary has reasonable cause to believe that 5 there has been a civil violation of this section, 6 the Secretary shall issue to the employer con- 7 cerned a written notice of the Department’s in- 8 tention to issue a claim for a monetary or other 9 penalty. Such pre-penalty notice shall— 10 ‘‘(i) describe the violation; 11 ‘‘(ii) specify the laws and regulations 12 allegedly violated; 13 ‘‘(iii) disclose the material facts which 14 establish the alleged violation; 15 ‘‘(iv) describe the penalty sought to be 16 imposed; and 17 ‘‘(v) inform such employer that he or 18 she shall have a reasonable opportunity to 19 make representations as to why a mone- 20 tary or other penalty should not be im- 21 posed. 22 ‘‘(B) EMPLOYER’S RESPONSE.—Whenever 23 any employer receives written pre-penalty notice 24 of a fine or other penalty in accordance with 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00284 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 285 •S 1258 IS subparagraph (A), the employer may, within 30 1 days from receipt of such notice, file with the 2 Secretary its written response to the notice. 3 The response may include any relevant evidence 4 or proffer of evidence that the employer wishes 5 to present with respect to whether the employer 6 violated this section and whether, if so, the pen- 7 alty should be mitigated, and shall be filed and 8 considered in accordance with procedures to be 9 established by the Secretary. 10 ‘‘(C) PENALTY CLAIM.—After considering 11 the employer’s response under subparagraph 12 (B), the Secretary shall determine whether 13 there was a violation and promptly issue a writ- 14 ten final determination setting forth the find- 15 ings of fact and conclusions of law on which the 16 determination is based. If the Secretary deter- 17 mines that there was a violation, the Secretary 18 shall issue the final determination with a writ- 19 ten penalty claim. The penalty claim shall speci- 20 fy all charges in the information provided under 21 clauses (i) through (iii) of subparagraph (A) 22 and any mitigation of the penalty that the Sec- 23 retary deems appropriate under paragraph 24 (5)(D). 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00285 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 286 •S 1258 IS ‘‘(5) CIVIL PENALTIES.— 1 ‘‘(A) HIRING OR CONTINUING TO EMPLOY 2 UNAUTHORIZED ALIENS.—Any employer that 3 violates any provision of subsection (a)(1)(A) or 4 (a)(2) shall: 5 ‘‘(i) pay a civil penalty of not less 6 than $2,000 and not more than $5,000 for 7 each unauthorized alien with respect to 8 which each violation of either subsection 9 (a)(1)(A) or (a)(2) occurred; 10 ‘‘(ii) if the employer has previously 11 been fined under this paragraph, pay a 12 civil penalty of not less than $4,000 and 13 not more than $10,000 for each unauthor- 14 ized alien with respect to which a violation 15 of either subsection (a)(1)(A) or (a)(2) oc- 16 curred; and 17 ‘‘(iii) if the employer has previously 18 been fined more than once under this para- 19 graph, pay a civil penalty of not less than 20 $8,000 and not more than $25,000 for 21 each unauthorized alien with respect to 22 which a violation of either subsection 23 (a)(1)(A) or (a)(2) occurred. 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00286 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 287 •S 1258 IS ‘‘(B) ENHANCED PENALTY.—If an em- 1 ployer is determined to have committed within 2 the 5 years immediately preceding the date of 3 any violation of subsection (a)(1)(A) or (a)(2) a 4 civil or criminal violation of a Federal or State 5 law relating to wage and hour or other employ- 6 ment standards, workplace safety, collective 7 bargaining, civil rights, or immigration, by a 8 court or an administrative agency with jurisdic- 9 tion over such violation, for which a monetary 10 penalty of at least $500, a judicial injunction, 11 or other equitable relief, or any term of impris- 12 onment has been imposed, any civil money pen- 13 alty or criminal fine otherwise applicable under 14 this section shall be trebled. In any proceeding 15 under this section, the Secretary of Homeland 16 Security, administrative law judge, or court, as 17 appropriate, shall determine whether a court or 18 administrative agency has imposed such penalty 19 for such previous violation of other law, but the 20 validity and appropriateness of such prior ac- 21 tion shall not be subject to review. 22 ‘‘(C) RECORDKEEPING OR VERIFICATION 23 PRACTICES.—Any employer that violates or fails 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00287 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 288 •S 1258 IS to comply with any requirement of subsection 1 (a)(1)(B), shall pay a civil penalty as follows: 2 ‘‘(i) not less than $500 and not more 3 than $2,000 for each violation; 4 ‘‘(ii) if an employer has previously 5 been fined under this paragraph, not less 6 than $1,000 and not more than $4,000 for 7 each violation; and 8 ‘‘(iii) if an employer has previously 9 been fined more than once under this para- 10 graph, not less than $2,000 and not more 11 than $8,000 for each violation. 12 ‘‘(D) OTHER PENALTIES.—The Secretary 13 may impose additional penalties for violations, 14 including cease and desist orders, specially de- 15 signed compliance plans to prevent further vio- 16 lations, suspended fines to take effect in the 17 event of a further violation, and in appropriate 18 cases, the remedy provided by paragraph (f)(2). 19 ‘‘(E) MITIGATION.—The Secretary is au- 20 thorized, upon such terms and conditions as the 21 Secretary deems reasonable and just and in ac- 22 cordance with such procedures as the Secretary 23 may establish, to reduce or mitigate penalties 24 imposed upon employers, based upon factors in- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00288 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 289 •S 1258 IS cluding, but not limited to, the employer’s hir- 1 ing volume, compliance history, good-faith im- 2 plementation of a compliance program, and vol- 3 untary disclosure of violations of this subsection 4 to the Secretary. The Secretary shall not miti- 5 gate a penalty below the minimum penalty pro- 6 vided by this section, except that the Secretary 7 may, in the case of an employer subject to pen- 8 alty for record-keeping or verification violations 9 only who has not previously been penalized 10 under this section, in the Secretary’s discretion, 11 mitigate the penalty below the statutory min- 12 imum or remit it entirely. 13 ‘‘(F) INFLATION ADJUSTMENTS.—All pen- 14 alties authorized in this paragraph may be ad- 15 justed periodically to account for inflation as 16 provided by law. 17 ‘‘(6) ORDER OF INTERNAL REVIEW AND CER- 18 TIFICATION OF COMPLIANCE.—If the Secretary has 19 reasonable cause to believe that an employer has 20 failed to comply with this section, the Secretary is 21 authorized, at any time, to require that the employer 22 certify that it is in compliance with this section, or 23 has instituted a program to come into compliance. 24 Within 60 days of receiving a notice from the Sec- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00289 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 290 •S 1258 IS retary requiring such a certification, the employer’s 1 chief executive officer or similar official with respon- 2 sibility for, and authority to bind the company on, 3 all hiring and immigration compliance notices shall 4 certify under penalty of perjury that the employer is 5 in conformance with the requirements under para- 6 graphs (1) through (4) of subsection (c), pertaining 7 to document verification requirements, and with sub- 8 section (d), pertaining to the System (once that sys- 9 tem is implemented with respect to that employer 10 according to the requirements of subsection (d)(1)), 11 and with any additional requirements that the Sec- 12 retary may promulgate by regulation pursuant to 13 subsections (c) or (d) or that the employer has insti- 14 tuted a program to come into compliance with these 15 requirements. At the request of the employer, the 16 Secretary may extend the 60-day deadline for good 17 cause. The Secretary is authorized to publish in the 18 Federal Register standards or methods for such cer- 19 tification, require specific recordkeeping practices 20 with respect to such certifications, and audit the 21 records thereof at any time. This authority shall not 22 be construed to diminish or qualify any other pen- 23 alty provided by this section. 24 ‘‘(7) JUDICIAL REVIEW.— 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00290 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 291 •S 1258 IS ‘‘(A) IN GENERAL.—Notwithstanding any 1 other provision of law, including sections 1361 2 and 1651 of title 28, United States Code, no 3 court shall have jurisdiction to consider a final 4 determination or penalty claim issued under 5 paragraph (4)(C), except as specifically pro- 6 vided by this paragraph. Judicial review of a 7 final determination under paragraph (5) is gov- 8 erned only by chapter 158 of such title 28, ex- 9 cept as specifically provided below. The Sec- 10 retary is authorized to require that the peti- 11 tioner provide, prior to filing for review, secu- 12 rity for payment of fines and penalties through 13 bond or other guarantee of payment acceptable 14 to the Secretary. 15 ‘‘(B) REQUIREMENTS FOR REVIEW OF A 16 FINAL DETERMINATION.—With respect to judi- 17 cial review of a final determination or penalty 18 claim issued under paragraph (4)(C), the fol- 19 lowing requirements apply: 20 ‘‘(i) DEADLINE.—The petition for re- 21 view shall be filed no later than 30 days 22 after the date of the final determination or 23 penalty claim issued under paragraph 24 (4)(C). 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00291 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 292 •S 1258 IS ‘‘(ii) VENUE AND FORMS.—The peti- 1 tion for review shall be filed with the court 2 of appeals for the judicial circuit where the 3 employer’s principal place of business was 4 located when the final determination or 5 penalty claim was issued. The record and 6 briefs do not have to be printed. The court 7 of appeals shall review the proceeding on a 8 typewritten or electronically filed record 9 and briefs. 10 ‘‘(iii) SERVICE.—The respondent is 11 the Secretary of Homeland Security. In ad- 12 dition to serving the respondent, the peti- 13 tioner shall also serve the Attorney Gen- 14 eral. 15 ‘‘(iv) PETITIONER’S BRIEF.—The pe- 16 titioner shall serve and file a brief in con- 17 nection with a petition for judicial review 18 not later than 40 days after the date on 19 which the administrative record is avail- 20 able, and may serve and file a reply brief 21 not later than 14 days after service of the 22 brief of the respondent, and the court may 23 not extend these deadlines, except for good 24 cause shown. If a petitioner fails to file a 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00292 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 293 •S 1258 IS brief within the time provided in this para- 1 graph, the court shall dismiss the appeal 2 unless a manifest injustice would result. 3 ‘‘(v) SCOPE AND STANDARD FOR RE- 4 VIEW.—The court of appeals shall decide 5 the petition only on the administrative 6 record on which the final determination is 7 based. The burden shall be on the peti- 8 tioner to show that the final determination 9 was arbitrary, capricious, an abuse of dis- 10 cretion, not supported by substantial evi- 11 dence, or otherwise not in accordance with 12 law. 13 ‘‘(C) EXHAUSTION OF ADMINISTRATIVE 14 REMEDIES.—A court may review a final deter- 15 mination under paragraph (4)(C) only if— 16 ‘‘(i) the petitioner has exhausted all 17 administrative remedies available to the pe- 18 titioner as of right; and 19 ‘‘(ii) another court has not decided 20 the validity of the order, unless the review- 21 ing court finds that the petition presents 22 grounds that could not have been pre- 23 sented in the prior judicial proceeding or 24 that the remedy provided by the prior pro- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00293 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 294 •S 1258 IS ceeding was inadequate or ineffective to 1 test the validity of the order. 2 ‘‘(D) LIMIT ON INJUNCTIVE RELIEF.—Re- 3 gardless of the nature of the action or claim or 4 of the identity of the party or parties bringing 5 the action, no court (other than the Supreme 6 Court) shall have jurisdiction or authority to 7 enjoin or restrain the operation of the provi- 8 sions in this section, other than with respect to 9 the application of such provisions to an indi- 10 vidual petitioner. 11 ‘‘(8) ENFORCEMENT OF ORDERS.—If the final 12 determination issued against the employer under 13 this subsection is not subject to review under para- 14 graph (7), the Attorney General, upon request by 15 the Secretary, may bring a civil action to enforce 16 compliance with the final determination in any ap- 17 propriate district court of the United States. The 18 court, on a proper showing, shall issue a temporary 19 restraining order or a preliminary or permanent in- 20 junction requiring that the employer comply with the 21 final determination issued against that employer 22 under this subsection. In any such civil action, the 23 validity and appropriateness of the final determina- 24 tion shall not be subject to review. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00294 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 295 •S 1258 IS ‘‘(9) LIENS.— 1 ‘‘(A) CREATION OF LIEN.—If any employer 2 liable for a fee or penalty under this section ne- 3 glects or refuses to pay such liability and fails 4 to file a petition for review (if applicable) under 5 paragraph (7), such liability is a lien in favor 6 of the United States on all property and rights 7 to property of such person as if the liability of 8 such person were a liability for a tax assessed 9 under the Internal Revenue Code of 1986. If a 10 petition for review is filed as provided in para- 11 graph (7), the lien (if any) shall arise upon the 12 entry of a final judgment by the court. The lien 13 continues for 20 years or until the liability is 14 satisfied, remitted, set aside, or terminated. 15 ‘‘(B) EFFECT OF FILING NOTICE OF 16 LIEN.—Upon filing of a notice of lien in the 17 manner in which a notice of tax lien would be 18 filed under paragraphs (1) and (2) of section 19 6323(f) of the Internal Revenue Code of 1986, 20 the lien shall be valid against any purchaser, 21 holder of a security interest, mechanic’s lien or 22 judgment lien creditor, except with respect to 23 properties or transactions specified in sub- 24 section (b), (c), or (d) of section 6323 of the In- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00295 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 296 •S 1258 IS ternal Revenue Code of 1986 for which a notice 1 of tax lien properly filed on the same date 2 would not be valid. The notice of lien shall be 3 considered a notice of lien for taxes payable to 4 the United States for the purpose of any State 5 or local law providing for the filing of a notice 6 of a tax lien. A notice of lien that is registered, 7 recorded, docketed, or indexed in accordance 8 with the rules and requirements relating to 9 judgments of the courts of the State where the 10 notice of lien is registered, recorded, docketed, 11 or indexed shall be considered for all purposes 12 as the filing prescribed by this section. The pro- 13 visions of section 3201(e) of chapter 176 of title 14 28, United States Code, shall apply to liens 15 filed as prescribed under this section. 16 ‘‘(C) ENFORCEMENT OF A LIEN.—A lien 17 obtained through this process shall be consid- 18 ered a debt (as defined in section 3002 of title 19 28, United States Code) and enforceable pursu- 20 ant to the Federal Debt Collection Procedures 21 Act (28 U.S.C. 3201 et seq.). 22 ‘‘(10) TRANSITION PROVISION.—The Attorney 23 General shall have jurisdiction to adjudicate admin- 24 istrative proceedings under this subsection, pursuant 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00296 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 297 •S 1258 IS to procedures for hearings before administrative law 1 judges as in effect under section 274A(e) of this Act 2 and its implementing regulations on the day imme- 3 diately before the date of the enactment of the CIR 4 Act of 2011, until the date that regulations promul- 5 gated by the Secretary, in consultation with the At- 6 torney General, for the adjudication of cases under 7 this subsection are in effect. Such regulations may 8 provide for the continuing jurisdiction of the Attor- 9 ney General over cases pending before the Attorney 10 General on such date that the regulations are pro- 11 mulgated. Sections 1512 and 1517 of the Homeland 12 Security Act (6 U.S.C. 552 and 557) shall apply to 13 any transfer of jurisdiction to adjudicate cases under 14 this subsection from the Attorney General to the 15 Secretary as if such transfer is a transfer under the 16 Homeland Security Act; provided that, nothing in 17 this sentence shall be construed to require any 18 transfer of personnel from the Department of Jus- 19 tice to the Department of Homeland Security. 20 ‘‘(f) PROHIBITION OF INDEMNITY BONDS.— 21 ‘‘(1) PROHIBITION.—It is unlawful for an em- 22 ployer, in the hiring of any individual, to require the 23 individual to post a bond or security, to pay or agree 24 to pay an amount, or otherwise to provide a finan- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00297 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 298 •S 1258 IS cial guarantee or indemnity, against any potential li- 1 ability arising under this section relating to such hir- 2 ing of the individual. 3 ‘‘(2) CIVIL PENALTY.—Any employer who is de- 4 termined, after notice and opportunity for mitigation 5 of the monetary penalty under subsection (e), to 6 have violated paragraph (1) shall be subject to a 7 civil penalty of $10,000 for each violation and to an 8 administrative order requiring the return of any 9 amounts received in violation of such paragraph to 10 the employee or, if the employee cannot be located, 11 to the general fund of the Treasury. 12 ‘‘(g) GOVERNMENT CONTRACTS.— 13 ‘‘(1) CONTRACTORS AND RECIPIENTS.—When- 14 ever an employer who holds Federal contracts, 15 grants, or cooperative agreements, or reasonably 16 may be expected to submit offers for or be awarded 17 a government contract, is determined by the Sec- 18 retary to be a repeat violator of this section or is 19 convicted of a crime under this section, the employer 20 shall be subject to debarment from the receipt of 21 Federal contracts, grants, or cooperative agreements 22 for a period of up to 5 years in accordance with the 23 procedures and standards prescribed by the Federal 24 Acquisition Regulation. Prior to debarring the em- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00298 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 299 •S 1258 IS ployer, the Secretary, in cooperation with the Ad- 1 ministrator of General Services, shall advise all 2 agencies holding contracts, grants, or cooperative 3 agreements with the employer of the proceedings to 4 debar the employer from the receipt of new Federal 5 contracts, grants, or cooperative agreements for a 6 period of up to 5 years. After consideration of the 7 views of agencies holding contracts, grants or coop- 8 erative agreements with the employer, the Secretary 9 may, in lieu of proceedings to debar the employer 10 from the receipt of new Federal contracts, grants, or 11 cooperative agreements for a period of up to 5 years, 12 waive operation of this subsection, limit the duration 13 or scope of the proposed debarment, or may refer to 14 an appropriate lead agency the decision of whether 15 to seek debarment of the employer, for what dura- 16 tion, and under what scope in accordance with the 17 procedures and standards prescribed by the Federal 18 Acquisition Regulation. However, any administrative 19 determination of liability for civil penalty by the Sec- 20 retary or the Attorney General shall not be review- 21 able in any debarment proceeding. 22 ‘‘(2) EFFECT OF INDICTMENTS OR OTHER AC- 23 TIONS.—Indictments for violations of this section or 24 adequate evidence of actions that could form the 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00299 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 300 •S 1258 IS basis for debarment under this subsection shall be 1 considered a cause for suspension under the proce- 2 dures and standards for suspension prescribed by 3 the Federal Acquisition Regulation. 4 ‘‘(3) INADVERTENT VIOLATIONS.—Inadvertent 5 violations of recordkeeping or verification require- 6 ments, in the absence of any other violations of this 7 section, shall not be a basis for determining that an 8 employer is a repeat violator for purposes of this 9 subsection. 10 ‘‘(4) OTHER REMEDIES AVAILABLE.—Nothing 11 in this subsection shall be construed to modify or 12 limit any remedy available to any agency or official 13 of the Federal Government for violation of any con- 14 tractual requirement to participate in the System, as 15 provided in the final rule published at 73 Federal 16 Register 67,651 (Nov. 14, 2008), or any subsequent 17 amendments to such rule. 18 ‘‘(h) PREEMPTION.—The provisions of this section 19 preempt any State or local law, contract license, or other 20 standard, requirement, action or instrument from— 21 ‘‘(1) imposing sanctions or liabilities for em- 22 ploying, or recruiting or referring for employment, 23 unauthorized aliens, or for working without employ- 24 ment authorization; 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00300 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 301 •S 1258 IS ‘‘(2) requiring those hiring, recruiting, or refer- 1 ring individuals for employment to ascertain or 2 verify the individuals’ employment authorization or 3 to participate in an employment authorization 4 verification system, or requiring individuals to dem- 5 onstrate employment authorization; and 6 ‘‘(3) requiring, authorizing or permitting the 7 use of an employment verification system, unless 8 otherwise mandated by Federal law, for any other 9 purpose, including verifying the status of renters, 10 determining eligibility for receipt of benefits, enroll- 11 ment in school, obtaining or retaining a business li- 12 cense or other license, or conducting a background 13 check. 14 ‘‘(i) BACKPAY REMEDIES.—Neither backpay nor any 15 other monetary remedy for unlawful employment prac- 16 tices, workplace injuries or other causes of action giving 17 rise to liability shall be denied to a present or former em- 18 ployee on account of— 19 ‘‘(1) the employer’s or the employee’s failure to 20 comply with the requirements of this section in es- 21 tablishing or maintaining the employment relation- 22 ship; the employee‘s violation of the provisions of 23 federal law related to the employment verification 24 system set forth in subsection (a); or’ 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00301 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 302 •S 1258 IS ‘‘(2) the employee’s continuing status as an un- 1 authorized alien both during and after termination 2 of employment. 3 ‘‘(j) DEPOSIT OF AMOUNTS RECEIVED.—Except as 4 otherwise specified, civil penalties collected under this sec- 5 tion shall be deposited by the Secretary into the Immigra- 6 tion Reform Penalty Account. 7 ‘‘(k) CHALLENGES TO VALIDITY OF THE SYSTEM.— 8 ‘‘(1) IN GENERAL.—Any right, benefit, or claim 9 not otherwise waived or limited pursuant to this sec- 10 tion is available in an action instituted in the United 11 States District Court for the District of Columbia, 12 but shall be limited to determinations of— 13 ‘‘(A) whether this section, or any regula- 14 tion issued to implement this section, violates 15 the Constitution of the United States; or 16 ‘‘(B) whether such a regulation issued by 17 or under the authority of the Secretary to im- 18 plement this section, is contrary to applicable 19 provisions of this section or was issued in viola- 20 tion of title 5, chapter 5, United States Code. 21 ‘‘(2) DEADLINES FOR BRINGING ACTIONS.— 22 Any action instituted under this subsection shall be 23 filed not later than 180 days after the date of the 24 implementation of the challenged section or regula- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00302 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 303 •S 1258 IS tion described in subparagraph (A) or (B) of para- 1 graph (1). 2 ‘‘(3) CONSTRUCTION.—In determining whether 3 the Secretary’s interpretation regarding any provi- 4 sion of this section is contrary to law, a court shall 5 accord to such interpretation the maximum def- 6 erence permissible under the Constitution. 7 ‘‘(l) PRIVATE RIGHT OF ACTION.—Any person or en- 8 tity who is injured in his business or property by reason 9 of the employment of an unauthorized alien by any other 10 person or entity may sue such other person or entity in 11 any district court of the United States in the district in 12 which the defendant resides or is found or has an agent, 13 without respect to the amount in controversy, and shall 14 recover threefold the damages sustained, and the cost of 15 suit, including reasonable attorney’s fees. The award of 16 interest, and the amount of damages payable to foreign 17 states and instrumentalities of foreign states, shall be de- 18 termined in the manner provided by section 15 of title 15, 19 United States Code. The provision shall become effective 20 3 years after the date of the enactment of the CIR Act 21 of 2011 and shall apply only to injury occurring after the 22 effective date. 23 ‘‘(m) CRIMINAL PENALTIES AND INJUNCTIONS FOR 24 PATTERN OR PRACTICE VIOLATIONS.— 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00303 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 304 •S 1258 IS ‘‘(1) PATTERN AND PRACTICE.—Any employer 1 who engages in a pattern or practice of knowing vio- 2 lations of paragraph (1)(A) or (2) of subsection (a) 3 shall be fined under title 18, United States Code, 4 imprisoned for not more than 3 years for the entire 5 pattern or practice, or both. 6 ‘‘(2) ENJOINING OF PATTERN OR PRACTICE 7 VIOLATIONS.—Whenever the Secretary or the Attor- 8 ney General has reasonable cause to believe that an 9 employer is engaged in a pattern or practice of em- 10 ployment in violation of paragraph (1)(A) or (2) of 11 subsection (a), the Attorney General may bring a 12 civil action in the appropriate district court of the 13 United States requesting such relief, including a per- 14 manent or temporary injunction, restraining order, 15 or other order against the employer, as the Sec- 16 retary or Attorney General determines to be nec- 17 essary. 18 ‘‘(n) CRIMINAL PENALTIES FOR UNLAWFUL EM- 19 PLOYMENT.— 20 ‘‘(1) UNAUTHORIZED ALIENS.—Any person 21 who, during any 12-month period, knowingly em- 22 ploys or hires for employment 10 or more individuals 23 within the United States knowing that the individ- 24 uals are unauthorized aliens (as defined in sub- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00304 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 305 •S 1258 IS section (b)(1) of this section) shall be fined under 1 title 18, United States Code, imprisoned for not 2 more than 5 years, or both. 3 ‘‘(2) ABUSIVE EMPLOYMENT.—Any person who, 4 during any 12-month period, knowingly employs or 5 hires for employment 10 or more individuals within 6 the United States— 7 ‘‘(A) knowing that the individuals are un- 8 authorized aliens; and 9 ‘‘(B) under conditions that violate section 10 206 or 207 of title 29, United States Code (re- 11 lating to minimum wages and maximum hours 12 of employment), 13 shall be fined under title 18, United States Code, or 14 imprisoned for not more than 10 years, or both. 15 ‘‘(3) ATTEMPT AND CONSPIRACY.—Any person 16 who attempts or conspires to commit any offense 17 under this subsection shall be punished in the same 18 manner as a person who completes the offense.’’. 19 (b) CONFORMING AMENDMENT.—Section 274(a)(3) 20 of the Immigration and Nationality Act (8 U.S.C. 21 1324(a)(3)) is repealed. 22 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00305 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 306 •S 1258 IS SEC. 172. COMPLIANCE BY DEPARTMENT OF HOMELAND 1 SECURITY CONTRACTORS WITH CONFIDEN- 2 TIALITY SAFEGUARDS. 3 (a) IN GENERAL.—Section 6103(p) of the Internal 4 Revenue Code is amended by adding at the end the fol- 5 lowing new paragraph: 6 ‘‘(9) DISCLOSURE TO DEPARTMENT OF HOME- 7 LAND SECURITY.—Notwithstanding any other provi- 8 sion of this section, no return or return information 9 shall be disclosed to any contractor of the Depart- 10 ment of Homeland Security unless such Department, 11 to the satisfaction of the Secretary of the Treas- 12 ury— 13 ‘‘(A) has requirements in effect that re- 14 quire each such contractor that would have ac- 15 cess to returns or return information to provide 16 safeguards (within the meaning of paragraph 17 (4)) to protect the confidentiality of such re- 18 turns or return information; 19 ‘‘(B) agrees to conduct an on-site review 20 every 3 years (mid-point review in the case of 21 contracts or agreements of less than 3 years in 22 duration) of each contractor to determine com- 23 pliance with such requirements; 24 ‘‘(C) submits the findings of the most re- 25 cent review conducted under subparagraph (B) 26 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00306 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 307 •S 1258 IS to the Secretary as part of the report required 1 by paragraph (4)(E); and 2 ‘‘(D) certifies to the Secretary for the most 3 recent annual period that such contractor is in 4 compliance with all such requirements, which 5 shall include the name and address of each con- 6 tractor, a description of the contract or agree- 7 ment with such contractor, and the duration of 8 such contract or agreement.’’. 9 (b) CONFORMING AMENDMENTS.— 10 (1) Section 6103(p)(8)(B) of such Code is 11 amended by inserting ‘‘or paragraph (9)’’ after 12 ‘‘subparagraph (A)’’. 13 (2) Section 7213(a)(2) of such Code is amended 14 by striking ‘‘or (20)’’ and inserting ‘‘(20), or (21)’’. 15 (c) REPEAL OF REPORTING REQUIREMENTS.— 16 (1) REPORT ON EARNINGS OF ALIENS NOT AU- 17 THORIZED TO WORK.—Subsection (c) of section 290 18 of the Immigration and Nationality Act (8 U.S.C. 19 1360) is repealed. 20 (2) REPORT ON FRAUDULENT USE OF SOCIAL 21 SECURITY ACCOUNT NUMBERS.—Subsection (b) of 22 section 414 of the Illegal Immigration Reform and 23 Immigrant Responsibility Act of 1996 (division C of 24 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00307 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 308 •S 1258 IS Public Law 104–208; 8 U.S.C. 1360 note) is re- 1 pealed. 2 SEC. 173. INCREASING SECURITY AND INTEGRITY OF SO- 3 CIAL SECURITY CARDS. 4 (a) FRAUD RESISTANT, TAMPER-RESISTANT, AND 5 WEAR-RESISTANT SOCIAL SECURITY CARDS.— 6 (1) ISSUANCE.— 7 (A) PRELIMINARY WORK.—Not later than 8 180 days after the date of the enactment of this 9 Act, the Commissioner of Social Security shall 10 begin work to administer and issue fraud-resist- 11 ant, tamper-resistant, and wear-resistant Social 12 Security cards. 13 (B) COMPLETION.—Not later than 2 years 14 after the date of the enactment of this Act, the 15 Commissioner of Social Security shall issue only 16 fraud-resistant, tamper-resistant and wear-re- 17 sistant Social Security cards. 18 (2) AMENDMENT.—Section 205(c)(2)(G) of the 19 Social Security Act (42 U.S.C. 405(c)(2)(G)) is 20 amended to read— 21 ‘‘(i) The Commissioner of Social Secu- 22 rity shall issue a Social Security card to 23 each individual at the time of the issuance 24 of a Social Security account number to 25 VerDate Mar 15 2010 06:32 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00308 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 309 •S 1258 IS such individual. The Social Security card 1 shall be fraud-resistant, tamper-resistant 2 and wear-resistant.’’. 3 (3) AUTHORIZATION OF APPROPRIATIONS.— 4 There are authorized to be appropriated such sums 5 as may be necessary to carry out this subsection and 6 the amendments made by this subsection. 7 (b) MULTIPLE CARDS.—Section 205(c)(2)(G) of the 8 Social Security Act (42 U.S.C. 405(c)(2)(G)) is further 9 amended by adding at the end the following: 10 ‘‘(ii) The Commissioner of Social Se- 11 curity shall not issue a replacement Social 12 Security card to any individual unless the 13 Commissioner determines that the purpose 14 for requiring the issuance of the replace- 15 ment document is legitimate.’’. 16 (c) CRIMINAL PENALTIES.—Section 208(a) of the 17 Social Security Act (42 U.S.C. 408(a)) is amended— 18 (1) by amending paragraph (7) to read as fol- 19 lows: 20 ‘‘(7) for any purpose— 21 ‘‘(A) knowingly uses a Social Security ac- 22 count number or social security card knowing 23 that the number or card was obtained from the 24 Commissioner of Social Security by means of 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00309 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 310 •S 1258 IS fraud or false statement with the intent to de- 1 fraud the actual holder of the number or card; 2 ‘‘(B) knowingly and falsely represents a 3 number to be the Social Security account num- 4 ber assigned by the Commissioner of Social Se- 5 curity to him or to another person, when in fact 6 such number is not the Social Security account 7 number assigned by the Commissioner of Social 8 Security to him or to such other person with 9 the intent to defraud the actual holder of the 10 number or card; 11 ‘‘(C) knowingly sells, or possesses with in- 12 tent sell a Social Security account number or a 13 Social Security card that is or purports to be a 14 number or card issued by the Commissioner of 15 Social Security; or 16 ‘‘(D) knowingly alters, counterfeits, forges, 17 or falsely makes a Social Security account num- 18 ber or a Social Security card; 19 ‘‘(E) knowingly distributes a social security 20 account number or a Social Security card know- 21 ing the number or card to be altered, counter- 22 feited, forged, falsely made, or stolen; or;’’; 23 (2) in paragraph (8)— 24 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00310 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 311 •S 1258 IS (A) by inserting the word ‘‘knowingly’’ im- 1 mediately before the word ‘‘discloses’’; 2 (B) by inserting the word ‘‘account’’ imme- 3 diately after the word ‘‘security’’; and 4 (C) by adding ‘‘or’’ at the end of the para- 5 graph; 6 (3) by inserting immediately after paragraph 7 (8) the following: 8 ‘‘(9) without lawful authority, knowingly pro- 9 duces or acquires for any person a Social Security 10 account number, a Social Security card, or a number 11 or card that purports to be a Social Security account 12 number or Social Security card;’’; 13 (4) in the undesignated penalty language at the 14 end of subsection (a), by striking the word ‘‘five’’ 15 and inserting the word ‘‘ten’’. 16 (d) CONSPIRACY AND DISCLOSURE.—Section 208 of 17 the Social Security Act (42 U.S.C. 408) is amended by 18 adding at the end the following: 19 ‘‘(f) Whoever attempts or conspires to violate any 20 criminal provision within this section shall be punished in 21 the same manner as a person who completes a violation 22 of that provision.’’. 23 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00311 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 312 •S 1258 IS SEC. 174. INCREASING SECURITY AND INTEGRITY OF IMMI- 1 GRATION DOCUMENTS. 2 Not later than 1 year after the date of the enactment 3 of this Act, the Secretary shall— 4 (1) issue only machine-readable, tamper-resist- 5 ant employment authorization documents that use 6 biometric identifiers; and 7 (2) submit a report to Congress that describes 8 the feasibility, advantages, and disadvantages of 9 issuing a document described in paragraph (1) to 10 any nonimmigrant alien authorized for employment 11 with a specific employer. 12 SEC. 175. RESPONSIBILITIES OF THE SOCIAL SECURITY AD- 13 MINISTRATION. 14 Section 205(c)(12) of the Social Security Act, 42 15 U.S.C. 405(c)(2), is amended by adding at the end the 16 following new subparagraph: 17 ‘‘(A) RESPONSIBILITIES OF THE COMMIS- 18 SIONER OF SOCIAL SECURITY.— 19 ‘‘(i) As part of the verification system, 20 the Commissioner of Social Security shall, 21 subject to the provisions of section 22 274A(d) of the Immigration and Nation- 23 ality Act, establish a reliable, secure meth- 24 od that, operating through the System and 25 within the time periods specified in section 26 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00312 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 313 •S 1258 IS 274A(d) of the Immigration and Nation- 1 ality Act: 2 ‘‘(I) Compares the name, date of 3 birth, Social Security account number 4 and available citizenship information 5 provided in an inquiry against such 6 information maintained by the Com- 7 missioner in order to confirm (or not 8 confirm) the validity of the informa- 9 tion provided regarding an individual 10 whose identity and employment eligi- 11 bility shall be confirmed. 12 ‘‘(II) Determines the correspond- 13 ence of the name, number, and any 14 other identifying information. 15 ‘‘(III) Determines whether the 16 name and number belong to an indi- 17 vidual who is deceased. 18 ‘‘(IV) Determines whether an in- 19 dividual is a national of the United 20 States (when available). 21 ‘‘(V) Determines whether the in- 22 dividual has presented a Social Secu- 23 rity account number that is not valid 24 for employment. 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00313 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 314 •S 1258 IS The System shall not disclose or release 1 Social Security information to employers 2 through the confirmation system (other 3 than such confirmation or nonconfirma- 4 tion, information provided by the employer 5 to the System, or the reason for the 6 issuance of a further action notice). 7 ‘‘(ii) SOCIAL SECURITY ADMINISTRA- 8 TION DATABASE IMPROVEMENTS.—For 9 purposes of preventing identity theft, pro- 10 tecting employees, and reducing burden on 11 employers, and notwithstanding section 12 6103 of the Internal Revenue Code of 13 1986, the Commissioner of Social Security, 14 in consultation with the Secretary of 15 Homeland Security, shall review the Social 16 Security Administration databases and in- 17 formation technology to identify any defi- 18 ciencies and discrepancies related to name, 19 birth date, citizenship status, or death 20 records of the Social Security accounts and 21 Social Security account holders likely to 22 contribute to fraudulent use of documents, 23 or identity theft, or to affect the proper 24 functioning of the System, and shall cor- 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00314 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 315 •S 1258 IS rect any identified errors. The Commis- 1 sioner shall ensure that a system for iden- 2 tifying and correcting such deficiencies and 3 discrepancies is adopted to ensure the ac- 4 curacy of the Social Security Administra- 5 tion’s databases. 6 ‘‘(iii) NOTIFICATION TO SUSPEND USE 7 OF SOCIAL SECURITY NUMBER.—The Com- 8 missioner of Social Security, in consulta- 9 tion with the Secretary of Homeland Secu- 10 rity, may establish a secure process where- 11 by an individual can request that the Com- 12 missioner preclude any confirmation under 13 the System based on that individual’s So- 14 cial Security number until it is reactivated 15 by that individual.’’. 16 SEC. 176. ANTIDISCRIMINATION PROTECTIONS. 17 (a) AMENDMENTS.—Section 274B (8 U.S.C. 1324b) 18 is amended— 19 (1) by amending subsection (a) to read as fol- 20 lows: 21 ‘‘(a) PROHIBITION OF DISCRIMINATION BASED ON 22 NATIONAL ORIGIN OR CITIZENSHIP STATUS.— 23 ‘‘(1) IN GENERAL.—It is an unfair immigra- 24 tion-related employment practice for a person or 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00315 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 316 •S 1258 IS other entity to discriminate against any individual, 1 because of such individual’s national origin or citi- 2 zenship status, with respect to the hiring of the indi- 3 vidual for employment, the verification of the indi- 4 vidual’s eligibility for employment through the Sys- 5 tem described in section 274A(d), the compensation, 6 terms, conditions, or privileges of the employment of 7 the individual, or the discharging of the individual 8 from employment. 9 ‘‘(2) EXCEPTIONS.—Paragraph (1) shall not 10 apply to— 11 ‘‘(A) a person or other entity that employs 12 3 or fewer employees, except for an employment 13 agency, as defined in paragraph (9); 14 ‘‘(B) a person’s or entity’s discrimination 15 because of an individual’s national origin if the 16 discrimination with respect to that person or 17 entity and that individual is covered under sec- 18 tion 703 of the Civil Rights Act of 1964 (42 19 U.S.C. 2000e–2); 20 ‘‘(C) discrimination because of citizenship 21 status which is otherwise required in order to 22 comply with law, regulation, or executive order, 23 or required by Federal, State, or local govern- 24 ment contract, or which the Attorney General 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00316 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 317 •S 1258 IS determines to be essential for an employer to do 1 business with an agency or department of the 2 Federal, State, or local government. 3 ‘‘(3) ADDITIONAL EXCEPTION PROVIDING 4 RIGHT TO PREFER EQUALLY QUALIFIED CITIZENS.— 5 Notwithstanding any other provision of this section, 6 it is not an unfair immigration-related employment 7 practice for a person or other entity to prefer to 8 hire, recruit, or refer an individual who is a citizen 9 or national of the United States over another indi- 10 vidual who is an alien if the two individuals are 11 equally qualified. 12 ‘‘(4) UNFAIR IMMIGRATION-RELATED EMPLOY- 13 MENT PRACTICES AND THE SYSTEM.—It is also an 14 unfair immigration-related employment practice for 15 a person or other entity— 16 ‘‘(A) to terminate the employment of an 17 individual or take any adverse employment ac- 18 tion with respect to that individual (including 19 any change in the terms and conditions of em- 20 ployment of the individual) due to a further ac- 21 tion notice issued by the System, or the individ- 22 ual’s decision to challenge or appeal any System 23 determination; 24 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00317 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 318 •S 1258 IS ‘‘(B) to use the System with regard to any 1 person who is not an employee; 2 ‘‘(C) to use the System to reverify the em- 3 ployment authorization of a current employee, 4 other than reverification upon expiration of em- 5 ployment authorization, or as otherwise author- 6 ized under section 274A(d) or by Executive 7 Order; 8 ‘‘(D) to use the System selectively to ex- 9 clude certain individuals from consideration for 10 employment as a result of a perceived likelihood 11 that additional verification will be required, be- 12 yond what is required for most newly hired in- 13 dividuals; 14 ‘‘(E) to fail to provide any required notice 15 to a current employee within the relevant time 16 period; 17 ‘‘(F) to use the System to deny workers’ 18 employment benefits or otherwise interfere with 19 their labor rights; 20 ‘‘(G) to use the System for any discrimina- 21 tory or retaliatory purpose; 22 ‘‘(H) to use the System to prescreen an in- 23 dividual for employment; and 24 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00318 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 319 •S 1258 IS ‘‘(I) to use an immigration status 1 verification system or service other than those 2 described in section 274A for purposes of 3 verifying employment eligibility under that sec- 4 tion. 5 ‘‘(5) PROHIBITION OF INTIMIDATION OR RETAL- 6 IATION.—It is also an unfair immigration-related 7 employment practice for a person or other entity to 8 intimidate, threaten, coerce, or retaliate against any 9 individual for the purpose of interfering with any 10 right or privilege secured under this section or be- 11 cause the individual intends to file or has filed a 12 charge or a complaint, testified, assisted, or partici- 13 pated in any manner in an investigation, proceeding, 14 or hearing under this section. 15 ‘‘(6) TREATMENT OF CERTAIN DOCUMENTARY 16 PRACTICES AS EMPLOYMENT PRACTICES.—A per- 17 son’s or other entity’s request, for purposes of satis- 18 fying the requirements of section 274A(b), for more 19 or different documents than are required under such 20 section or refusing to honor documents tendered 21 that reasonably appear to be genuine shall be treat- 22 ed as an unfair immigration-related employment 23 practice in violation of paragraph (1). 24 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00319 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 320 •S 1258 IS ‘‘(7) BURDEN OF PROOF IN DISPARATE IMPACT 1 CASES.— 2 ‘‘(A) An unlawful immigration-related em- 3 ployment practice or unfair employment prac- 4 tice case based on disparate impact is estab- 5 lished only if: 6 ‘‘(i) A complaining party dem- 7 onstrates that a respondent uses a par- 8 ticular employment practice that causes a 9 disparate impact on the basis of national 10 origin or citizenship status and the re- 11 spondent fails to demonstrate that the 12 challenged practice is job related for the 13 position in question and consistent with 14 business necessity. 15 ‘‘(ii) The complaining party dem- 16 onstrates that an alternative employment 17 practice is available and the respondent re- 18 fuses to adopt such an alternative employ- 19 ment practice. An alternative employment 20 practice is defined as a policy that would 21 satisfy the employer’s legitimate interests 22 without having a disparate impact on a 23 protected class. 24 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00320 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 321 •S 1258 IS ‘‘(B) With respect to demonstrating that a 1 particular employment practice causes a dis- 2 parate impact as described in subparagraph 3 (A), the complaining party shall demonstrate 4 that each particular challenged employment 5 practice causes a disparate impact, except that 6 if the complaining party can demonstrate to the 7 court that the elements of a respondent’s deci- 8 sion-making process are not capable of separa- 9 tion for analysis, the decision-making process 10 may be analyzed as one employment practice. 11 ‘‘(C) If the respondent demonstrates that a 12 specific employment practice does not cause the 13 disparate impact, the respondent shall not be 14 required to demonstrate that such practice is 15 required by business necessity. 16 ‘‘(D) A demonstration that an employment 17 practice is required by business necessity may 18 not be used as a defense against a claim of in- 19 tentional discrimination under this statute. 20 ‘‘(8) MOTIVATING FACTOR.—Except as other- 21 wise provided in this Act, an unlawful immigration- 22 related unfair employment practice is established 23 when the charging party demonstrates that citizen- 24 ship status or national origin was a motivating fac- 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00321 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 322 •S 1258 IS tor for any employment practice, even though other 1 factors also motivated the practice. 2 ‘‘(9) EMPLOYMENT AGENCY DEFINED.—As 3 used in this section, the term ‘employment agency’ 4 means any person or entity regularly undertaking 5 with or without compensation to procure employees 6 for an employer or to procure for employees oppor- 7 tunities to work for an employer and includes an 8 agent of such person or entity.’’; 9 (2) in subsection (d), by amending paragraphs 10 (1) and (2) to read as follows: 11 ‘‘(1) The Special Counsel shall investigate each 12 charge received and determine whether or not there 13 is reasonable cause to believe that the charge is true 14 and whether or not to bring a complaint with respect 15 to the charge before an administrative law judge. 16 The Special Counsel may, on his or her own initia- 17 tive, conduct investigations respecting unfair immi- 18 gration-related employment practices or unfair em- 19 ployment practices and, based on such an investiga- 20 tion, file a complaint before such judge. 21 ‘‘(2) If the Special Counsel, after receiving such 22 a charge respecting an unfair immigration-related 23 employment practice or an unfair employment prac- 24 tice which alleges discriminatory activity or a pat- 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00322 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 323 •S 1258 IS tern or practice of discriminatory activity, has not 1 filed a complaint before an administrative law judge 2 with respect to such charge within 120 days, the 3 Special Counsel shall notify the person making the 4 charge of the determination not to file such a com- 5 plaint during such period and the person making the 6 charge may file a complaint directly before such 7 judge within 90 days after the date of receipt of the 8 notice.’’; 9 (3) in subsection (g)(2)— 10 (A) in subparagraph (A), by inserting be- 11 fore the period ‘‘and which requires such af- 12 firmative action as may be appropriate, or any 13 other individual equitable relief as the adminis- 14 trative law judge determines appropriate.’’; 15 (B) in subparagraph (B)— 16 (i) in clause (iii), by inserting before 17 the semicolon ‘‘, and to provide such other 18 relief as the administrative law judge de- 19 termines appropriate to make the indi- 20 vidual whole’’; and 21 (ii) by amending clause (iv) to read as 22 follows— 23 ‘‘(iv) to pay any applicable civil pen- 24 alties proscribed below, the amounts of 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00323 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 324 •S 1258 IS which may be adjusted periodically to ac- 1 count for inflation as provided by law— 2 ‘‘(I) except as provided in sub- 3 clauses (II) through (IV), to pay a 4 civil penalty of not less than $2,000 5 and not more than $5,000 for each in- 6 dividual subjected to an unfair immi- 7 gration related employment practice; 8 ‘‘(II) except as provided in sub- 9 clauses (III) and (IV), in the case of 10 a person or entity previously subject 11 to a single order under this para- 12 graph, to pay a civil penalty of not 13 less than $4,000 and not more than 14 $10,000 for each individual subjected 15 to an unfair immigration related em- 16 ployment practice; 17 ‘‘(III) except as provided in sub- 18 clause (IV), in the case of a person or 19 entity previously subject to more than 20 one order under this paragraph, to 21 pay a civil penalty of not less than 22 $8,000 and not more than $25,000 23 for each individual subjected to an un- 24 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00324 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 325 •S 1258 IS fair immigration related employment 1 practice; and 2 ‘‘(IV) in the case of an unfair im- 3 migration-related employment practice 4 described in subsection (a)(6) of this 5 section, to pay a civil penalty of not 6 less than $500 and not more than 7 $5,000 for each individual subjected 8 to an unfair immigration related em- 9 ployment practice.’’; 10 (C) in clause (vii) by striking ‘‘and’’ at the 11 end; 12 (D) in clause (viii), by striking the period 13 at the end and inserting ‘‘; and’’; and 14 (E) by adding at the end the following: 15 ‘‘(ix)(I) An order of the administrative 16 law judge may not require the admission 17 or reinstatement of an individual as a 18 member of a union, or the hiring, rein- 19 statement, or promotion of an individual as 20 an employee, if such individual was refused 21 admission, suspended, or expelled, or was 22 refused employment or advancement or 23 was suspended or discharged more likely 24 that not, for any reason other than dis- 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00325 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 326 •S 1258 IS crimination on account of citizenship sta- 1 tus or national origin or in violation of this 2 section. 3 ‘‘(II) On a claim in which an indi- 4 vidual proves a violation under paragraph 5 (a)(9) and a respondent demonstrates that 6 the respondent would have taken the same 7 action in the absence of the impermissible 8 motivating factor, the administrative law 9 judge may grant declaratory relief, injunc- 10 tive relief (except as provided in clause 11 (b)(2)), and attorney’s fees and costs dem- 12 onstrated to be directly attributable only to 13 the pursuit of a claim under paragraph 14 (a)(9); and shall not award damages or 15 issue an order requiring any admission, re- 16 instatement, hiring, promotion, or pay- 17 ment, described in subparagraph (I).’’; 18 (4) in subsection (l)(3), by inserting ‘‘and an 19 additional $40,000,000 for each of fiscal years 2012 20 through 2014’’ before the period at the end; and 21 (5) by adding at the end the following: 22 ‘‘(m) REPORTS.—The Secretary of Homeland Secu- 23 rity shall make transactional data and citizenship status 24 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00326 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 327 •S 1258 IS data related to the System available upon request by the 1 Special Counsel. 2 ‘‘(n) RECORDS.— 3 ‘‘(1) IN GENERAL.—Every employer, employ- 4 ment agency, and labor organization subject to this 5 section shall— 6 ‘‘(A) make and keep such records relevant 7 to the determinations of whether unlawful em- 8 ployment practices have been or are being com- 9 mitted; 10 ‘‘(B) preserve such records for such peri- 11 ods; and 12 ‘‘(C) make reports from such records as 13 prescribed by the Special Counsel, by regulation 14 or order, after public hearing, as reasonable, 15 necessary, or appropriate for the enforcement of 16 this section. 17 ‘‘(2) COOPERATION.—The Special Counsel 18 may— 19 ‘‘(A) cooperate with State and local agen- 20 cies charged with the administration of State 21 fair employment practices laws; 22 ‘‘(B) with the consent of the agencies re- 23 ferred to in subparagraph (A), for the purpose 24 of carrying out its functions and duties under 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00327 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 328 •S 1258 IS this section, and within the limitation of funds 1 appropriated specifically for such purpose— 2 ‘‘(i) engage in and contribute to the 3 cost of research and other projects of mu- 4 tual interest undertaken by such agencies; 5 ‘‘(ii) utilize the services of such agen- 6 cies and their employees; and 7 ‘‘(iii) notwithstanding any other provi- 8 sion of law, pay by advance or reimburse- 9 ment such agencies and their employees 10 for services rendered to assist the Special 11 Counsel in carrying out this section. 12 ‘‘(C) in furtherance of the cooperative ef- 13 forts under this paragraph, enter into written 14 agreements with such State or local agencies, 15 which— 16 ‘‘(i) may include provisions under 17 which the Special Counsel shall refrain 18 from processing a charge in any cases or 19 class of cases specified in such agreements 20 or under which the Special Counsel shall 21 relieve any person or class of persons in 22 such State or locality from requirements 23 imposed under this section; and 24 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00328 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 329 •S 1258 IS ‘‘(ii) shall be rescinded if the Special 1 Counsel determines that the agreement no 2 longer serves the interest of effective en- 3 forcement of this section.’’. 4 (b) EFFECTIVE DATE.—The amendments made by 5 this section shall take effect on the date of the enactment 6 of this Act and shall apply to violations occurring on or 7 after such date. 8 SEC. 177. IMMIGRATION ENFORCEMENT SUPPORT BY THE 9 INTERNAL REVENUE SERVICE AND THE SO- 10 CIAL SECURITY ADMINISTRATION. 11 (a) INCREASE IN PENALTY ON EMPLOYER FAILING 12 TO FILE CORRECT INFORMATION RETURNS.—Section 13 6721 of the Internal Revenue Code of 1986 (relating to 14 failure to file correct information returns) is amended— 15 (1) in subsection (a)(1)— 16 (A) by striking ‘‘$100’’ and inserting 17 ‘‘$200’’; and 18 (B) by striking ‘‘$1,500,000’’ and insert- 19 ing ‘‘$2,000,000’’; 20 (2) in subsection (b)(1)— 21 (A) in subparagraph (A), by striking ‘‘$30 22 in lieu of $100’’ and inserting ‘‘$60 in lieu of 23 $200’’; and 24 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00329 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 330 •S 1258 IS (B) in subparagraph (B), by striking 1 ‘‘$250,000’’ and inserting ‘‘$300,000’’; 2 (3) in subsection (b)(2)— 3 (A) in subparagraph (A), by striking ‘‘$60 4 in lieu of $100’’ and inserting ‘‘$120 in lieu of 5 $200’’; and 6 (B) in subparagraph (B), by striking 7 ‘‘$500,000’’ and inserting ‘‘$600,000’’; 8 (4) in subsection (d)— 9 (A) in the subsection heading, by striking 10 ‘‘$5,000,000’’ and inserting ‘‘$2,000,000’’; 11 (B) in paragraph (1)(B), by striking 12 ‘‘ ‘$75,000’ for ‘$250,000’ ’’ and inserting 13 ‘‘ ‘$100,000’ for ‘$300,000’ ’’; 14 (C) in paragraph (1)(C), by striking 15 ‘‘ ‘$200,000’ for ‘$500,000’ ’’ and inserting 16 ‘‘ ‘$200,000’ for ‘$600,000’ ’’; and 17 (D) in paragraph (2)(A), by striking 18 ‘‘$5,000,000’’ and inserting ‘‘$2,000,000’’; and 19 (5) in subsection (e)— 20 (A) in paragraph (2)— 21 (i) in the matter preceding subpara- 22 graph (A), by striking ‘‘$250’’ and insert- 23 ing ‘‘$400’’; 24 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00330 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 331 •S 1258 IS (ii) in subparagraph (C)(i), by strik- 1 ing ‘‘$25,000’’ and inserting ‘‘$100,000’’; 2 and 3 (iii) in subparagraph (C)(ii), by strik- 4 ing ‘‘$100,000’’ and inserting ‘‘$400,000’’; 5 and 6 (B) in paragraph (3)(A), by striking 7 ‘‘$1,500,000’’ and inserting ‘‘$2,000,000’’. 8 (b) EFFECTIVE DATE.—The amendments made by 9 subsection (a) shall apply to failures occurring after the 10 date of the enactment of this Act. 11 SEC. 178. ENHANCED VERIFICATION SYSTEM. 12 (a) RIGHT TO REVIEW AND CORRECT SYSTEM IN- 13 FORMATION.—The Secretary, in consultation with the 14 Commissioner of Social Security, shall establish— 15 (1) procedures to permit an individual— 16 (A) to verify the individual’s eligibility for 17 employment in the United States before obtain- 18 ing or changing employment; 19 (B) to view the individual’s own records in 20 the Enhanced Verification System in order to 21 ensure the accuracy of such records; and 22 (C) to correct or update the information 23 used by the System regarding the individual by 24 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00331 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 332 •S 1258 IS electronic means, to the greatest extent prac- 1 ticable; and 2 (2) procedures for establishing an Enhanced 3 Verification System under subsection (b) through 4 which an individual who has viewed the individual’s 5 own record may electronically— 6 (A) block the use of the individual’s Social 7 Security number under the System; and 8 (B) remove such block in order to— 9 (i) prevent the fraudulent or other 10 misuse of a Social Security account num- 11 ber; 12 (ii) prevent employer misuse of the 13 system; 14 (iii) protect privacy; and 15 (iv) limit erroneous nonconfirmations 16 during employment verification. 17 (b) ENHANCED VERIFICATION SYSTEM.— 18 (1) IN GENERAL.—The Secretary, in consulta- 19 tion with the Commissioner of Social Security, shall 20 establish a voluntary self-verification system to allow 21 an individual to submit biometric information, verify 22 the individual’s own record, and to block and 23 unblock the use of the individual’s Social Security 24 number in order to prevent the fraudulent or other 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00332 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 333 •S 1258 IS misuse of the individual’s Social Security number 1 during employment verification, to prevent employer 2 misuse of the system, to protect privacy, and to limit 3 erroneous non-confirmations during employment 4 verification. 5 (2) VOLUNTARY ENROLLMENT.—An individual 6 may enroll in the Enhanced Verification System on 7 a voluntary basis. 8 (3) ELECTRONIC ACCESS.—The Secretary shall 9 establish procedures allowing individuals to use a 10 Personal Identification Number (PIN) or other bio- 11 graphic information to authenticate the individual’s 12 identity and to block and unblock the individual’s 13 Social Security number electronically. 14 (4) USE OF ENHANCED VERIFICATION SYSTEM 15 RECEIPT FOR PURPOSE OF EMPLOYMENT 16 VERIFICATION.—The Secretary shall establish proce- 17 dures to allow an individual who has authenticated 18 the individual’s identity and unblocked the individ- 19 ual’s Social Security number to receive a single –use 20 code as a receipt indicating that the individual is 21 work authorized and has self-verified, and proce- 22 dures to allow the individual to use the single-use 23 code in place of the identity and eligibility docu- 24 ments described in this section. 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00333 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 334 •S 1258 IS (5) EXPEDITED REVIEW PROCESS.—The Sec- 1 retary shall establish an expedited review process to 2 allow an individual who has authenticated the indi- 3 vidual’s identity and unblocked the individual’s So- 4 cial Security number immediately to correct user or 5 system errors which result in an erroneous non-con- 6 firmation of work eligibility. 7 (6) REPORTS.— 8 (A) SYSTEM ASSESSMENT.—Not later than 9 3 months after the end of the third and fourth 10 years in which the programs are in effect, the 11 Secretary shall submit reports to the Committee 12 on the Judiciary of the Senate and the Com- 13 mittee on the Judiciary of the House of Rep- 14 resentatives on the Enhanced Verification Sys- 15 tem that— 16 (i) assesses the degree of fraudulent 17 attesting of United States citizenship; 18 (ii) assesses the benefits of the En- 19 hanced Verification System to employers 20 and the degree to which it assists in the 21 enforcement of section 274A of the Immi- 22 gration and Nationality Act; 23 (iii) assesses the benefits of the En- 24 hanced Verification System to individuals 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00334 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 335 •S 1258 IS and the degree to which they prevent mis- 1 use of the System and erroneous non-con- 2 firmations during employment verification; 3 (iv) determines whether the Enhanced 4 Verification System reduces discrimination 5 during the employment verification proc- 6 ess; 7 (v) assesses the degree to which the 8 Enhanced Verification System protects em- 9 ployee civil liberties and privacy; and 10 (vi) includes recommendations on 11 whether the Enhanced Verification System 12 should be continued or modified. 13 (B) REPORT ON EXPANSION.—Not later 14 than July 1, 2016, the Secretary shall submit 15 a report shall to the committees referred to in 16 subparagraph (A) that— 17 (i) evaluates whether the problems 18 identified by the reports submitted under 19 subparagraph (A) have been substantially 20 resolved; and 21 (ii) describes the actions to be taken 22 by the Secretary before requiring any indi- 23 vidual to participate in the Enhanced 24 Verification System. 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00335 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 336 •S 1258 IS (7) LIMITATION ON USE OF THE CONFIRMA- 1 TION SYSTEM AND ANY RELATED SYSTEMS.—Not- 2 withstanding any other provision of law, nothing in 3 this section may be construed to permit any depart- 4 ment, bureau, or other agency of the United States 5 Government to utilize any information, database, or 6 other records assembled under this section for any 7 other purpose other than as provided for under the 8 Enhanced Verification System. 9 SEC. 179. AUTHORIZATION OF APPROPRIATIONS. 10 (a) DEPARTMENT OF HOMELAND SECURITY.—There 11 are authorized to be appropriated to the Department such 12 sums as may be necessary to carry out this subtitle, and 13 the amendments made by this subtitle, including the fol- 14 lowing: 15 (1) In each of the 5 years beginning on the date 16 of the enactment of this Act, the appropriations nec- 17 essary to increase to a level not less than 4500, by 18 the end of such five-year period, the total number of 19 personnel of the Department of Homeland Security 20 assigned exclusively or principally to an office or of- 21 fices in U.S. Citizenship and Immigration Services 22 and U.S. Immigration and Customs Enforcement 23 (and consistent with the missions of such agencies), 24 dedicated to administering the System, and moni- 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00336 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 337 •S 1258 IS toring and enforcing compliance with sections 274A, 1 274B, and 274C of the Immigration and Nationality 2 Act (8 U.S.C. 1324a, 1324b, and 1324c), including 3 compliance with the requirements of the System. 4 These personnel shall perform compliance and moni- 5 toring functions, including the following: 6 (A) Verify Employment Identification 7 Numbers of employers participating in the Sys- 8 tem. 9 (B) Verify compliance of employers partici- 10 pating in the System with the requirements for 11 participation that are prescribed by the Sec- 12 retary. 13 (C) Monitor the System for multiple uses 14 of Social Security numbers and immigration 15 identification numbers that could indicate iden- 16 tity theft or fraud. 17 (D) Monitor the System to identify dis- 18 criminatory or unfair practices. 19 (E) Monitor the System to identify employ- 20 ers who are not using the system properly, in- 21 cluding employers who fail to make available 22 appropriate records with respect to their queries 23 and any notices of confirmation, nonconfirma- 24 tion, or further action. 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00337 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 338 •S 1258 IS (F) Identify instances where employees al- 1 lege that an employer violated their privacy, 2 civil or labor rights, or misused the System, and 3 create procedures for employees to report such 4 allegations. 5 (G) Analyze and audit the use of the Sys- 6 tem and the data obtained through the System 7 to identify fraud trends, including fraud trends 8 across industries, geographical areas, or em- 9 ployer size. 10 (H) Analyze and audit the use of the Sys- 11 tem and the data obtained through the System 12 to develop compliance tools as necessary to re- 13 spond to changing patterns of fraud. 14 (I) Provide employers with additional 15 training and other information on the proper 16 use of the System, including but not limited to 17 privacy training and employee rights. 18 (J) Perform threshold evaluation of cases 19 for referral to the Special Counsel for Unfair 20 Immigration-Related Employment Practices or 21 the Equal Employment Opportunity Commis- 22 sion, and other officials or agencies with re- 23 sponsibility for enforcing anti-discrimination, 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00338 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 339 •S 1258 IS civil rights, privacy or worker protection laws, 1 as may be appropriate. 2 (K) Any other compliance and monitoring 3 activities that, in the Secretary’s judgment, are 4 necessary to ensure the functioning of the Sys- 5 tem. 6 (L) Investigate identity theft and fraud de- 7 tected through the System and undertake the 8 necessary enforcement or referral actions. 9 (M) Investigate use of or access to fraudu- 10 lent documents and undertake the necessary en- 11 forcement actions. 12 (N) Perform any other investigations that, 13 in the Secretary’s judgment, are necessary to 14 ensure the lawful functioning of the System, 15 and undertake any enforcement actions nec- 16 essary as a result of these investigations. 17 (2) The appropriations necessary to acquire, in- 18 stall and maintain technological equipment necessary 19 to support the functioning of the System and the 20 connectivity between U.S. Citizenship and Immigra- 21 tion Services and U.S. Immigration and Customs 22 Enforcement, Department of Justice, and other 23 agencies or officials with respect to the sharing of 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00339 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 340 •S 1258 IS information to support the System and related immi- 1 gration enforcement actions. 2 (3) The appropriations necessary to establish a 3 robust redress process for employees who wish to ap- 4 peal contested nonconfirmations to ensure the accu- 5 racy and fairness of the System. 6 (4) The appropriations necessary to provide a 7 means by which individuals may access their own 8 employment authorization data to ensure its accu- 9 racy independent of their employer. 10 (5) The appropriations necessary to establish a 11 Joint Employment Fraud Task Force to promote 12 employer compliance with the system and ensure a 13 coordinated response to noncompliance. 14 (6) The appropriations necessary for the Office 15 for Civil Rights and Civil Liberties and the Office of 16 Privacy to perform their responsibilities as they re- 17 late to the System. 18 (7) The appropriations necessary to make 19 grants to states to support them in assisting the fed- 20 eral government in carrying out the provisions of 21 this subtitle. 22 (b) SOCIAL SECURITY ADMINISTRATION.—There are 23 authorized to be appropriated to the Social Security Ad- 24 ministration such sums as may be necessary to carry out 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00340 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 341 •S 1258 IS its responsibilities under this subtitle, including section 1 177. 2 (c) DEPARTMENT OF JUSTICE.—There are author- 3 ized to be appropriated to the Department of Justice such 4 sums as may be necessary to carry out its responsibilities 5 under this subtitle, including enforcing compliance with 6 section 274B of the Act, as amended by section 176 of 7 this Act. 8 (d) DEPARTMENT OF STATE.—There are authorized 9 to be appropriated to the Department of State such sums 10 as may be necessary to carry out its responsibilities under 11 this subtitle. 12 TITLE II—IMMIGRATION 13 ENFORCEMENT AND REFORM 14 Subtitle A—Border Enforcement 15 PART I—ADDITIONAL ASSETS AND RESOURCES 16 SEC. 201. EFFECTIVE DATE TRIGGERS. 17 (a) IN GENERAL.—Notwithstanding any effective 18 date provision or any other law, the status of an alien in 19 lawful prospective immigrant status may not be adjusted 20 to the status of an alien lawfully admitted for permanent 21 residence under section 112 unless— 22 (1) the Secretary has submitted a written cer- 23 tification to the President and Congress that the 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00341 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 342 •S 1258 IS measures described in subsection (b) are established, 1 funded, and operational; and 2 (2) the Attorney General has submitted a writ- 3 ten certification to the President and Congress that 4 each of the measures described in subsection (c) are 5 established, funded, and operational. 6 (b) MEASURES BY DEPARTMENT OF HOMELAND SE- 7 CURITY.—The measures described in this subsection are 8 established, funded, and operational if— 9 (1) U.S. Immigration and Customs Enforce- 10 ment has— 11 (A) employed not fewer than 6,410 agents 12 to investigate violations of criminal law, includ- 13 ing— 14 (i) document and benefit fraud; and 15 (ii) the cross-border smuggling of 16 aliens, firearms, narcotics, and other con- 17 traband; 18 (B) employed not fewer than 185 worksite 19 enforcement auditors to support a worksite en- 20 forcement strategy that prioritizes developing 21 cases against employers committing serious vio- 22 lations; 23 (C) created and staffed an Immigration 24 Benefit and Document Fraud Task Force in 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00342 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 343 •S 1258 IS each field office headed by a Special Agent in 1 Charge; 2 (D) established a nationwide plan, with 3 benchmarks, to dramatically increase the na- 4 tionwide enrollment in an alternatives to deten- 5 tion program that utilizes community-based 6 nonprofit organizations; and 7 (E) implemented civil detention standards 8 with which each facility detaining immigrants is 9 required to comply; 10 (2) U.S. Customs and Border Protection has— 11 (A) employed not fewer than 21,000 12 United States Border Patrol agents who have 13 been trained and have reported for duty, includ- 14 ing additional agents who conduct inspections 15 for drugs, contraband, and immigrants who are 16 unlawfully present at ports of entry in the 17 United States; 18 (B) employed not fewer than 21,500 offi- 19 cers who have been trained and have reported 20 for duty at the Office of Field Operations; 21 (C) deployed 7 unmanned aircraft systems; 22 (D) deployed remote video surveillance sys- 23 tems at 300 sites; 24 (E) acquired 200 scope trucks; and 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00343 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 344 •S 1258 IS (F) acquired 56 mobile surveillance sys- 1 tems; and 2 (3) the Secretary has received and is processing 3 and adjudicating applications under title I in a time- 4 ly manner, including conducting all necessary back- 5 ground and security checks required under such 6 title. 7 (c) MEASURES BY DEPARTMENT OF JUSTICE.—The 8 measures described in this subsection are established, 9 funded, and operational if the Department of Justice 10 has— 11 (1) employed not fewer than 150 Assistant 12 United States Attorneys who prosecute criminal vio- 13 lations at the border; and 14 (2) employed not fewer than 275 immigration 15 judges and appropriate support staff. 16 SEC. 202. CUSTOMS AND BORDER PROTECTION PER- 17 SONNEL. 18 (a) STAFF ENHANCEMENTS.— 19 (1) REVISIONS TO FISCAL YEAR ALLOCATIONS 20 AND FUNDING.—Title II of the Department of 21 Homeland Security Appropriations Act, 2010 (Pub- 22 lic Law 111–83), is amended by inserting ‘‘Provided 23 further, That of the total amount provided, 24 $40,000,000 shall be used to pay the salaries and 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00344 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 345 •S 1258 IS related compensation for 250 additional Customs 1 and Border Protection officers and 25 associated 2 support staff personnel, who shall be devoted to new 3 inspection lanes at new land ports of entry on the 4 Southwest border’’ before the period at the end of 5 the first paragraph. 6 (2) NEW PERSONNEL.—In addition to positions 7 authorized before the date of the enactment of this 8 Act and any officer vacancies within U.S. Customs 9 and Border Protection on such date, the Secretary 10 shall hire, train, and assign to duty, not later than 11 September 30, 2013— 12 (A) 2,500 full-time Customs and Border 13 Protection officers to serve on all primary, sec- 14 ondary, incoming, and outgoing inspection lanes 15 and enforcement teams at United States land 16 ports of entry on the Northern border; 17 (B) 2,500 full-time Customs and Border 18 Protection officers to serve on all primary, sec- 19 ondary, incoming, and outgoing inspection lanes 20 and enforcement teams at United States land 21 ports of entry on the Southern border; and 22 (C) 350 full-time support staff for all 23 United States ports of entry. 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00345 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 346 •S 1258 IS (b) WAIVER OF FTE LIMITATION.—The Secretary 1 may waive any limitation on the number of full-time equiv- 2 alent personnel assigned to the Department to comply 3 with subsection (a). 4 (c) REPORT TO CONGRESS.— 5 (1) OUTBOUND INSPECTIONS.—Not later than 6 90 days after the date of the enactment of this Act, 7 the Secretary shall submit a report that describes 8 the Department’s plans for ensuring the placement 9 of sufficient U.S. Customs and Border Protection of- 10 ficers on outbound inspections at all Southern bor- 11 der and Northern border land ports of entry to— 12 (A) the Committee on the Judiciary of the 13 Senate; 14 (B) the Committee on Homeland Security 15 and Governmental Affairs of the Senate; 16 (C) the Committee on the Judiciary of the 17 House of Representatives; and 18 (D) the Committee on Homeland Security 19 of the House of Representatives. 20 (2) AGRICULTURAL SPECIALISTS.—Not later 21 than 90 days after the date of the enactment of this 22 Act, the Secretary, in consultation with the Sec- 23 retary of Agriculture, shall submit a report to the 24 committees set forth in paragraph (1) that contains 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00346 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 347 •S 1258 IS plans for ensuring the placement of sufficient agri- 1 culture specialists at all Southern border and North- 2 ern border land ports of entry. 3 (d) RETENTION INCENTIVE PAYMENTS.— 4 (1) PAYMENTS AUTHORIZED.—Subject to para- 5 graph (2), during the 6-year period beginning on 6 July 1, 2011, the Secretary may make incentive pay- 7 ments to qualified U.S. Customs and Border Protec- 8 tion port of entry officers, to the extent necessary to 9 retain such officers. 10 (2) SPECIAL RULES FOR INCENTIVE PAY- 11 MENTS.— 12 (A) IN GENERAL.—Each payment made 13 under paragraph (1)— 14 (i) shall be paid to each qualified em- 15 ployee, in a lump sum that does not exceed 16 $10,000, at the end of the fiscal year in 17 which the employee is selected by the Sec- 18 retary, or a delegate of the Secretary, to 19 receive such payment; 20 (ii) may not be limited solely to work 21 performance, but may be based on criteria 22 such as— 23 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00347 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 348 •S 1258 IS (I) comparative salaries for law 1 enforcement officers in other Federal 2 agencies; 3 (II) costs for replacement and 4 training of a new employee; and 5 (III) volume of work at the port 6 of entry; 7 (iii) shall be contingent upon the se- 8 lected employee signing an agreement, 9 under penalty of perjury, to continue serv- 10 ing as a United States Customs and Bor- 11 der Protection officer at a land port of 12 entry for at least 3 additional years; and 13 (iv) shall be subject to reimbursement 14 if the employee fails to complete the 3-year 15 service requirement described in clause (iii) 16 due to voluntary or involuntary separation 17 from service. 18 (B) LIMITATIONS.— 19 (i) TOTAL PAYMENTS.—The total pay- 20 ments under subparagraph (A) may not 21 exceed $55,000,000. 22 (ii) FISCAL YEARS 2012 THROUGH 23 2016.—In each of the fiscal years 2012 24 through 2016, the Secretary may not make 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00348 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 349 •S 1258 IS more than 500 incentive payments under 1 this subsection. 2 (iii) ELIGIBILITY.—Any employee who 3 receives a retention incentive payment 4 under this subsection in a fiscal year shall 5 not be eligible to receive another such pay- 6 ment until the employee completes at least 7 2 years of service with the Department 8 after receiving such payment. 9 SEC. 203. SECURE COMMUNICATION; EQUIPMENT; AND 10 GRANTS FOR BORDER PERSONNEL. 11 (a) SECURE COMMUNICATION.—The Secretary shall 12 ensure that each U.S. Customs and Border Protection of- 13 ficer is equipped with a secure 2-way communication and 14 satellite-enabled device, supported by system interoper- 15 ability, which allows such officers to communicate— 16 (1) between ports of entry and inspection sta- 17 tions; and 18 (2) with other Federal, State, local, and tribal 19 law enforcement entities. 20 (b) BORDER AREA SECURITY INITIATIVE GRANT 21 PROGRAM.— 22 (1) IN GENERAL.—The Secretary shall establish 23 a grant program for the purchase of detection equip- 24 ment at land ports of entry and mobile, hand-held, 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00349 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 350 •S 1258 IS 2-way communication devices for State and local law 1 enforcement officers serving on the Southern border 2 or the Northern border. 3 (2) AUTHORIZATION OF APPROPRIATIONS.— 4 There is authorized to be appropriated, for the 6- 5 year period beginning on October 1, 2011, 6 $30,000,000, which shall be used for grants author- 7 ized under paragraph (1). 8 SEC. 204. INFRASTRUCTURE IMPROVEMENTS AND EXPAN- 9 SION OF LAND PORTS OF ENTRY. 10 (a) AMENDMENTS TO AMERICAN RECOVERY AND RE- 11 INVESTMENT ACT OF 2009.—Title VI of the American 12 Recovery and Reinvestment Act of 2009 (Public Law 111– 13 5) is amended, under the heading entitled ‘‘Construc- 14 tion’’— 15 (1) by striking ‘‘U.S. Customs and Border Pro- 16 tection owned’’; and 17 (2) by inserting ‘‘Provided further, That 18 $300,000,000 shall be used for infrastructure im- 19 provements, expansion, and new construction (or re- 20 imbursement for new construction costs incurred 21 during fiscal years 2007 through 2012) of high-vol- 22 ume ports of entry along the Northern border and 23 the Southern border, regardless of port ownership’’ 24 before the period at the end. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00350 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 351 •S 1258 IS (b) EFFECTIVE DATE.—The amendments made 1 under subsection (a) shall take effect as if included in the 2 American Recovery and Reinvestment Act of 2009, as of 3 the date of the enactment of such Act. 4 SEC. 205. ADDITIONAL AUTHORITIES FOR PORT OF ENTRY 5 CONSTRUCTION. 6 (a) IN GENERAL.—In order to aid in the enforcement 7 of Federal customs, immigration, and agriculture laws, the 8 Commissioner of U.S. Customs and Border Protection 9 may— 10 (1) design, construct, and modify land ports of 11 entry and other structures and facilities, including 12 living quarters for officers, agents, and personnel; 13 (2) acquire, by purchase, donation, exchange, or 14 otherwise, land or any interest in land determined to 15 be necessary to carry out the Commissioner’s duties 16 under this section; and 17 (3) construct additional ports of entry along the 18 Southern border and the Northern border. 19 (b) CONSULTATION.— 20 (1) LOCATIONS FOR NEW PORTS OF ENTRY.— 21 The Secretary shall consult with the Secretary of the 22 Interior, the Secretary of Agriculture, the Secretary 23 of State, the International Boundary and Water 24 Commission, the International Joint Commission, 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00351 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 352 •S 1258 IS and appropriate representatives of States, local gov- 1 ernments, Indian tribes (as defined in section 4 of 2 the Indian Self-Determination and Education Assist- 3 ance Act (25 U.S.C. 450b)), and property owners 4 to— 5 (A) determine locations for new ports of 6 entry; and 7 (B) minimize adverse impacts from such 8 ports on the environment, historic and cultural 9 resources, commerce, and quality of life for the 10 communities and residents located near such 11 ports. 12 (2) SAVINGS PROVISION.—Nothing in this sub- 13 section may be construed— 14 (A) to create any right or liability of the 15 parties described in paragraph (1); 16 (B) to affect the legality and validity of 17 any determination under this Act by the Sec- 18 retary; or 19 (C) to affect any consultation requirement 20 under any other law. 21 SEC. 206. ADDITIONAL INCREASES IN IMMIGRATION EN- 22 FORCEMENT PERSONNEL. 23 (a) IMMIGRATION AND CUSTOMS ENFORCEMENT IN- 24 VESTIGATORS.—Section 5203 of the Intelligence Reform 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00352 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 353 •S 1258 IS and Terrorism Prevention Act of 2004 (Public Law 108– 1 458; 118 Stat. 3734) is amended by striking ‘‘800’’ and 2 inserting ‘‘1000’’. 3 (b) ADDITIONAL PERSONNEL.—In addition to the po- 4 sitions authorized under section 5203 of the Intelligence 5 Reform and Terrorism Prevention Act of 2004, as amend- 6 ed by subsection (a), during each of the fiscal years 2012 7 through 2016, the Secretary shall, subject to the avail- 8 ability of appropriations, increase by not less than 50 the 9 number of positions for personnel within the Department 10 assigned to investigate alien smuggling. 11 (c) AUTHORIZATION OF APPROPRIATIONS.—There 12 are authorized to be appropriated to the Secretary such 13 sums as may be necessary for each of the fiscal years 2012 14 through 2016 to carry out this section. 15 SEC. 207. ADDITIONAL IMMIGRATION COURT PERSONNEL. 16 (a) DEPARTMENT OF JUSTICE.— 17 (1) LITIGATION ATTORNEYS.—In each of the 18 fiscal years 2012 through 2016, the Attorney Gen- 19 eral, subject to the availability of appropriations for 20 such purpose, shall increase the number of positions 21 for attorneys in the Office of Immigration Litigation 22 of the Department of Justice by not fewer than 50. 23 (2) IMMIGRATION JUDGES.—In each of the fis- 24 cal years 2012 through 2016, the Attorney General, 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00353 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 354 •S 1258 IS subject to the availability of appropriations for such 1 purpose, shall— 2 (A) increase the number of full-time immi- 3 gration judges by not fewer than 20, compared 4 to the number of such positions for which funds 5 were made available during the preceding fiscal 6 year; and 7 (B) increase the number of personnel to 8 support the immigration judges described in 9 subparagraph (A) by not fewer than 80, com- 10 pared to the number of such positions for which 11 funds were made available during the preceding 12 fiscal year. 13 (3) STAFF ATTORNEYS.—In each of fiscal years 14 2012 through 2016, the Attorney General, subject to 15 the availability of appropriations for such purpose, 16 shall increase by not fewer than 10— 17 (A) the number of positions for full-time 18 staff attorneys in the Board of Immigration Ap- 19 peals, compared to the number of such posi- 20 tions for which funds were made available dur- 21 ing the preceding fiscal year; and 22 (B) the number of positions for personnel 23 to support the staff attorneys described in sub- 24 paragraph (A), compared to the number of such 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00354 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 355 •S 1258 IS positions for which funds were made available 1 during the preceding fiscal year. 2 (4) AUTHORIZATION OF APPROPRIATIONS.— 3 There are authorized to be appropriated to the At- 4 torney General for each of the fiscal years 2012 5 through 2016 such sums as may be necessary to 6 carry out this subsection, including hiring necessary 7 support staff. 8 SEC. 208. IMPROVED TRAINING FOR BORDER SECURITY 9 AND IMMIGRATION ENFORCEMENT OFFI- 10 CERS. 11 The Secretary shall ensure that U.S. Customs and 12 Border Protection agents, U.S. Border Patrol agents, U.S. 13 Immigration and Customs Enforcement agents, and Agri- 14 cultural Inspectors stationed within 100 miles of any land 15 or marine border of the United States or at any United 16 States port of entry receive appropriate training, which 17 shall be prepared in collaboration with the Office for Civil 18 Rights and Civil Liberties, in— 19 (1) identifying and detecting fraudulent travel 20 documents; 21 (2) protecting the civil, constitutional, and pri- 22 vacy rights of individuals, including the rights of de- 23 tained persons; 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00355 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 356 •S 1258 IS (3) limitations on the use of force, including le- 1 thal force, against individuals apprehended or en- 2 countered while on duty; and 3 (4) screening, identifying, and addressing vul- 4 nerable populations, including children, victims of 5 crime and human trafficking, and individuals fleeing 6 persecution or torture. 7 SEC. 209. INVENTORY OF ASSETS AND PERSONNEL. 8 (a) INVENTORY.—The Secretary shall compile an in- 9 ventory of— 10 (1) the assets, equipment, supplies, and other 11 physical resources dedicated to border security and 12 enforcement as of the date of the enactment of this 13 Act; and 14 (2) the personnel and other human resources 15 dedicated to border security and enforcement as of 16 the date of the enactment of this Act. 17 (b) REPORT.—Not later than 90 days after the date 18 of the enactment of this Act, the Secretary shall submit 19 the inventory required under subsection (a) to— 20 (1) the Committee on the Judiciary of the Sen- 21 ate; 22 (2) the Committee on Homeland Security and 23 Governmental Affairs of the Senate; 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00356 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 357 •S 1258 IS (3) the Committee on the Judiciary of the 1 House of Representatives; 2 (4) the Committee on Homeland Security of the 3 House of Representatives; and 4 (5) the Committee on Oversight and Govern- 5 ment Reform of the House of Representatives. 6 SEC. 210. U.S. CUSTOMS AND BORDER PROTECTION ASSETS. 7 (a) PERSONAL EQUIPMENT.— 8 (1) BODY ARMOR.—The Secretary shall ensure 9 that each border patrol agent— 10 (A) is issued high-quality body armor that 11 is appropriate for the climate and risks faced by 12 the agent; 13 (B) is permitted to select body armor from 14 among a variety of approved brands and styles; 15 (C) is strongly encouraged to wear such 16 body armor whenever practicable; and 17 (D) is issued replacement body armor not 18 less frequently than once every 5 years. 19 (2) WEAPONS.—The Secretary shall ensure 20 that— 21 (A) border patrol agents are equipped with 22 weapons that are reliable and effective to pro- 23 tect themselves, their fellow agents, and inno- 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00357 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 358 •S 1258 IS cent third parties from the threats posed by 1 armed criminals; and 2 (B) all agents are authorized to carry 3 weapons that are suited to the potential threats 4 that they face. 5 (3) UNIFORMS.—The Secretary shall ensure 6 that all agents are provided, at no cost to such 7 agents— 8 (A) all necessary uniform items, including 9 outerwear suited to the climate, footwear, belts, 10 holsters, and personal protective equipment; 11 and 12 (B) replacement uniform items when such 13 items become worn or unserviceable or no 14 longer fit properly. 15 (b) HELICOPTERS AND POWER BOATS.— 16 (1) HELICOPTERS.—The Secretary shall— 17 (A) conduct a review of the helicopters 18 needed by the Border Patrol; 19 (B) acquire additional helicopters for the 20 Border Patrol if the Secretary determines that 21 the existing number of helicopters is insuffi- 22 cient; and 23 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00358 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 359 •S 1258 IS (C) ensure that appropriate types of heli- 1 copters are procured for the various missions 2 being performed. 3 (2) POWER BOATS.—The Secretary shall— 4 (A) conduct a review of the power boats 5 needed by the Border Patrol; 6 (B) acquire additional power boats for the 7 Border Patrol if the Secretary determines that 8 the existing number of power boats is insuffi- 9 cient; and 10 (C) ensure that appropriate types of power 11 boats are procured for the waterways in which 12 they are used and the mission requirements. 13 (3) USE AND TRAINING.—The Secretary shall— 14 (A) establish a standard policy on the use 15 of the helicopters and power boats procured 16 under this subsection; and 17 (B) implement training programs for the 18 Border Patrol agents who use such assets, in- 19 cluding safe operating procedures and rescue 20 operations. 21 (c) MOTOR VEHICLES.— 22 (1) QUANTITY.—The Secretary shall— 23 (A) conduct a review of the motor vehicles 24 needed by the Border Patrol; 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00359 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 360 •S 1258 IS (B) acquire additional, appropriate motor 1 vehicles for the Border Patrol if the Secretary 2 determines that the existing number of motor 3 vehicles is insufficient; and 4 (C) ensure that there are sufficient num- 5 bers and types of other motor vehicles to sup- 6 port the mission of the Border Patrol. 7 (2) FEATURES.—All motor vehicles purchased 8 for the Border Patrol shall— 9 (A) be appropriate for the mission of the 10 Border Patrol; and 11 (B) have a panic button and a global posi- 12 tioning system device that is activated solely in 13 emergency situations to track the location of 14 agents in distress. 15 (d) ELECTRONIC EQUIPMENT.— 16 (1) PORTABLE COMPUTERS.—The Secretary 17 shall ensure that each police-type motor vehicle in 18 the fleet of the Border Patrol— 19 (A) is equipped with a portable computer 20 with access to all necessary law enforcement 21 databases; and 22 (B) is otherwise suited to the unique oper- 23 ational requirements of the Border Patrol. 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00360 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 361 •S 1258 IS (2) RADIO EQUIPMENT.—The Secretary shall 1 augment the radio communications system of the 2 Border Patrol so that— 3 (A) all law enforcement personnel working 4 in each area where Border Patrol operations 5 are conducted have clear and encrypted 2-way 6 radio communication capabilities at all times; 7 and 8 (B) each portable communications device is 9 equipped with a panic button and a global posi- 10 tioning system device that is activated solely in 11 emergency situations to track the location of 12 agents in distress. 13 (3) HANDHELD GLOBAL POSITIONING SYSTEM 14 DEVICES.—If the Secretary determines that each 15 member of a class of Border Patrol agents need a 16 handheld global positioning system device to effec- 17 tively and safely carry out his or her duties, the Sec- 18 retary shall ensure that each such agent is issued 19 such device for navigational purposes. 20 (4) NIGHT VISION EQUIPMENT.—The Secretary 21 shall ensure that sufficient quantities of state-of-the- 22 art night vision equipment are procured and main- 23 tained to enable each Border Patrol agent working 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00361 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 362 •S 1258 IS during the hours of darkness to be equipped with a 1 portable night vision device. 2 (e) APPROPRIATIONS.—There are authorized to be 3 appropriated to the Secretary such sums as may be nec- 4 essary for each of fiscal years 2012 through 2016 to carry 5 out this section. 6 SEC. 211. TECHNOLOGICAL ASSETS AND PROGRAMS. 7 (a) ACQUISITION.—Subject to the availability of ap- 8 propriations for such purpose, the Secretary shall procure 9 additional unmanned aerial systems, aircrafts, cameras, 10 poles, ground sensors, and other technologies necessary to 11 achieve effective control of the land and maritime borders 12 of the United States. 13 (b) UNMANNED AIRCRAFT AND ASSOCIATED INFRA- 14 STRUCTURE.—The Secretary shall acquire and maintain 15 unmanned aerial systems for use on the border, including 16 related equipment such as— 17 (1) additional sensors; 18 (2) critical spares; 19 (3) satellite command and control; and 20 (4) other necessary equipment for operational 21 support. 22 (c) PRIVACY AND CIVIL LIBERTIES ASSESSMENTS.— 23 The Secretary, in consultation with the Attorney General, 24 shall conduct a privacy impact assessment and a civil lib- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00362 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 363 •S 1258 IS erties impact assessment before deploying new tech- 1 nologies acquired under this subsections (a) and (b). 2 (d) AUTHORIZATION OF APPROPRIATIONS.— 3 (1) IN GENERAL.—There are authorized to be 4 appropriated to the Secretary such sums as may be 5 necessary for each of the fiscal years 2012 through 6 2016 to carry out subsections (a) and (b). 7 (2) AVAILABILITY OF FUNDS.—Amounts appro- 8 priated pursuant to paragraph (1) shall remain 9 available until expended. 10 (e) SURVEILLANCE TECHNOLOGIES PROGRAMS.— 11 (1) AERIAL SURVEILLANCE PROGRAM.— 12 (A) IN GENERAL.—In conjunction with the 13 border surveillance plan developed under section 14 5201 of the Intelligence Reform and Terrorism 15 Prevention Act of 2004 (8 U.S.C. 1701 note) 16 and subject to the availability of appropriations 17 for such purpose, the Secretary shall fully inte- 18 grate and utilize aerial surveillance tech- 19 nologies, including unmanned aerial systems, 20 that the Secretary determines to be necessary 21 to enhance the security of the Northern border 22 and the Southern border. 23 (B) ASSESSMENT AND CONSULTATION RE- 24 QUIREMENTS.—The Secretary shall— 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00363 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 364 •S 1258 IS (i) consider current and proposed aer- 1 ial surveillance technologies; 2 (ii) assess the feasibility and advis- 3 ability of utilizing such technologies to ad- 4 dress border threats, including an assess- 5 ment of the technologies considered best 6 suited to address respective threats; 7 (iii) consult with the Secretary of De- 8 fense regarding any technologies or equip- 9 ment which the Secretary may deploy 10 along a border of the United States; 11 (iv) consult with the Administrator of 12 the Federal Aviation Administration re- 13 garding safety, airspace coordination and 14 regulation, and any other issues necessary 15 for implementation of the program; 16 (v) consult with the Secretary of State 17 with respect to any foreign policy or inter- 18 national law implications relating to the 19 implementation or conduct of the program; 20 and 21 (vi) conduct a privacy impact assess- 22 ment and civil liberties impact assessment 23 before the deployment of the new tech- 24 nologies acquired under this paragraph. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00364 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 365 •S 1258 IS (C) EVALUATION OF TECHNOLOGIES.— 1 The aerial surveillance program authorized 2 under this paragraph shall include the use of a 3 variety of aerial surveillance technologies in a 4 variety of topographies and areas, including 5 populated and unpopulated areas located on or 6 near the international border of the United 7 States, to evaluate, for a range of cir- 8 cumstances— 9 (i) the significance of previous experi- 10 ences with such technologies in border se- 11 curity or critical infrastructure protection; 12 (ii) the cost and effectiveness of var- 13 ious technologies for border security, in- 14 cluding varying levels of technical com- 15 plexity; and 16 (iii) liability, safety, civil liberties, and 17 privacy concerns relating to the utilization 18 of such technologies for border security. 19 (D) ADDITIONAL REVIEWS.—In accordance 20 with sections 222 and 705 of the Homeland Se- 21 curity Act of 2002 (6 U.S.C. 142 and 345), the 22 Chief Privacy Officer and the Officer for Civil 23 Rights and Civil Liberties shall conduct addi- 24 tional reviews, as necessary. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00365 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 366 •S 1258 IS (E) CONTINUED USE OF AERIAL SURVEIL- 1 LANCE TECHNOLOGIES.—The Secretary may 2 continue the operation of aerial surveillance 3 technologies in use on the date of the enact- 4 ment of this Act while assessing the effective- 5 ness of the utilization of such technologies. 6 (F) AUTHORIZATION OF APPROPRIA- 7 TIONS.—There are authorized to be appro- 8 priated such sums as may be necessary for each 9 of the fiscal years 2012 through 2016 to carry 10 out this paragraph. 11 (2) INTEGRATED AND AUTOMATED SURVEIL- 12 LANCE PROGRAM.— 13 (A) REQUIREMENT FOR PROGRAM.—Sub- 14 ject to the availability of appropriations, the 15 Secretary shall establish a program to procure 16 additional unmanned aerial systems, cameras, 17 poles, sensors, satellites, radar coverage, and 18 other technologies necessary— 19 (i) to achieve effective control of the 20 Northern border and the Southern border; 21 and 22 (ii) to establish a security perimeter 23 (to be known as a ‘‘virtual fence’’) along 24 the Northern border and the Southern bor- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00366 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 367 •S 1258 IS der to provide a barrier to unauthorized 1 immigration. 2 (B) PROGRAM COMPONENTS.—In carrying 3 out the program authorized under this para- 4 graph, the Secretary, to the maximum extent 5 feasible, shall— 6 (i) utilize integrated technologies that 7 function cohesively in an automated fash- 8 ion; 9 (ii) use a standard process to collect, 10 catalog, and report intrusion and response 11 data collected under the program; 12 (iii) ensure that future surveillance 13 technology investments and upgrades for 14 the program can be integrated with exist- 15 ing systems; 16 (iv) develop and apply performance 17 measures to evaluate whether the program 18 is providing desired results by increasing 19 response effectiveness in monitoring and 20 detecting unauthorized intrusions along the 21 Northern border and the Southern border; 22 (v) develop plans, in accordance with 23 relevant environmental laws, to streamline 24 site selection, site validation, and environ- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00367 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 368 •S 1258 IS mental assessment processes to minimize 1 delays of installing surveillance technology 2 infrastructure; 3 (vi) develop standards to expand the 4 shared use of existing private and govern- 5 mental structures to install remote surveil- 6 lance technology infrastructure to the ex- 7 tent possible; and 8 (vii) develop standards to identify and 9 deploy the use of nonpermanent or mobile 10 surveillance platforms that will increase 11 the Secretary’s mobility and ability to iden- 12 tify unauthorized border intrusions. 13 (C) AUTHORIZATION OF APPROPRIA- 14 TIONS.—There are authorized to be appro- 15 priated such sums as may be necessary for each 16 of the fiscal years 2012 through 2016 to carry 17 out this paragraph. 18 PART II—ENHANCED COORDINATION AND 19 PLANNING FOR BORDER SECURITY 20 SEC. 216. ANNUAL REPORT ON IMPROVING NORTH AMER- 21 ICAN SECURITY INFORMATION EXCHANGE. 22 (a) REQUIREMENT FOR REPORTS.—Not later than 1 23 year after the date of the enactment of this Act, and annu- 24 ally thereafter, the Secretary of State, in coordination with 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00368 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 369 •S 1258 IS the Secretary and the heads of other appropriate Federal 1 agencies, shall submit a report to Congress that describes 2 the progress made during the most recent 12-month pe- 3 riod in improving the effectiveness with which information 4 relating to North American security is exchanged between 5 the Governments of the United States, of Canada, and of 6 Mexico. 7 (b) CONTENTS.— 8 (1) SECURITY CLEARANCES AND DOCUMENT IN- 9 TEGRITY.—Each report submitted under subsection 10 (a) shall describe the development of common enroll- 11 ment, security, technical, and biometric standards 12 for the issuance, authentication, validation, and re- 13 pudiation of secure documents, including— 14 (A) technical and biometric standards 15 based on best practices and consistent with 16 international standards for the issuance, au- 17 thentication, validation, and repudiation of trav- 18 el documents, including— 19 (i) passports; 20 (ii) visas; and 21 (iii) permanent resident cards; 22 (B) the joint efforts of the United States, 23 Canada, and Mexico to encourage foreign gov- 24 ernments to enact laws that— 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00369 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 370 •S 1258 IS (i) combat alien smuggling and traf- 1 ficking; and 2 (ii) forbid the use and manufacture of 3 fraudulent travel documents; and 4 (C) efforts made to ensure that other 5 countries meet proper travel document stand- 6 ards and are committed to travel document 7 verification before the nationals of such coun- 8 tries travel internationally, including travel to 9 the United States. 10 (2) IMMIGRATION AND VISA MANAGEMENT.— 11 Each report submitted under subsection (a) shall de- 12 scribe the progress made in sharing information re- 13 garding high-risk individuals who attempt to enter 14 the United States, Canada, or Mexico, including— 15 (A) implementing the Statement of Mutual 16 Understanding on Information Sharing, signed 17 by Canada and the United States in February 18 2003; and 19 (B) identifying and analyzing trends re- 20 lated to immigration fraud, including asylum 21 and document fraud. 22 (3) VISA POLICY COORDINATION AND IMMIGRA- 23 TION SECURITY.—Each report submitted under sub- 24 section (a) shall describe the progress made by the 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00370 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 371 •S 1258 IS United States, Canada, and Mexico to enhance 1 North American security by cooperating on visa pol- 2 icy and identifying best practices regarding immigra- 3 tion security, including— 4 (A) enhancing consultation among officials 5 who issue visas at the consulates or embassies 6 of the United States, of Canada, or of Mexico, 7 or throughout the world to share information, 8 trends, and best practices on visa flows; 9 (B) comparing the procedures and policies 10 of the United States and Canada related to vis- 11 itor visa processing, including— 12 (i) application process; 13 (ii) interview policy; 14 (iii) general screening procedures; 15 (iv) visa validity; 16 (v) quality control measures; and 17 (vi) access to appeal or review; 18 (C) exploring methods for the United 19 States, Canada, and Mexico to waive visa re- 20 quirements for nationals and citizens of the 21 same foreign countries; 22 (D) developing and implementing an immi- 23 gration security strategy for North America 24 that utilizes a common security perimeter by 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00371 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 372 •S 1258 IS enhancing technical assistance for programs 1 and systems to support advance automated re- 2 porting and risk targeting of international pas- 3 sengers; 4 (E) real-time sharing of information on 5 lost and stolen passports among immigration or 6 law enforcement officials of the United States, 7 Canada, and Mexico; and 8 (F) collecting 10 fingerprints from each in- 9 dividual who applies for a visa. 10 (4) NORTH AMERICAN VISITOR OVERSTAY PRO- 11 GRAM.—Each report submitted under subsection (a) 12 shall describe the progress made by the United 13 States and Canada in implementing parallel entry- 14 exit tracking systems that— 15 (A) respect the privacy laws of both coun- 16 tries; and 17 (B) share information regarding third 18 country nationals who have overstayed their pe- 19 riod of authorized admission in the United 20 States or Canada. 21 (5) TERRORIST WATCH LISTS.—Each report 22 submitted under subsection (a) shall describe the ca- 23 pacity of the United States to combat terrorism 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00372 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 373 •S 1258 IS through the coordination of counterterrorism efforts, 1 including— 2 (A) developing and implementing bilateral 3 agreements between Canada and the United 4 States and between Mexico and the United 5 States— 6 (i) to govern the sharing of terrorist 7 watch list data; and 8 (ii) to comprehensively enumerate the 9 uses of such data by the governments of 10 each country; 11 (B) establishing appropriate linkages 12 among Canada, Mexico, and the United States 13 Terrorist Screening Center; 14 (C) establishing a multilateral watch list 15 mechanism that would facilitate direct coordina- 16 tion between the country that identifies individ- 17 uals on a watch list and the country that owns 18 such list, including procedures that satisfy secu- 19 rity concerns, comply with privacy laws, and are 20 consistent with the other laws of each partici- 21 pating country; and 22 (D) establishing transparent standards and 23 processes that enable innocent individuals to re- 24 move their names from a watch list. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00373 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 374 •S 1258 IS (6) MONEY LAUNDERING, CURRENCY SMUG- 1 GLING, AND ALIEN SMUGGLING.—Each report sub- 2 mitted under subsection (a) shall describe improve- 3 ments made in information sharing and law enforce- 4 ment cooperation in combating organized crime, in- 5 cluding— 6 (A) combating currency smuggling, money 7 laundering, alien smuggling, and trafficking in 8 alcohol, firearms, and explosives; 9 (B) determining the feasibility of formu- 10 lating a firearms trafficking action plan be- 11 tween Mexico and the United States; 12 (C) developing a joint threat assessment on 13 organized crime between Canada and the 14 United States; 15 (D) determining the feasibility of formu- 16 lating a joint threat assessment on organized 17 crime between Mexico and the United States; 18 (E) developing mechanisms to exchange in- 19 formation on findings, seizures, and capture of 20 individuals transporting undeclared currency; 21 and 22 (F) developing and implementing a plan to 23 combat the transnational threat of illegal drug 24 trafficking. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00374 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 375 •S 1258 IS (7) LAW ENFORCEMENT COOPERATION.—Each 1 report submitted under subsection (a) shall describe 2 enhancements in law enforcement cooperation among 3 the United States, Canada, and Mexico, including— 4 (A) enhanced technical assistance for the 5 development and maintenance of a national 6 database built upon identified best practices to 7 identify suspected criminals or terrorists; 8 (B) the feasibility of establishing law en- 9 forcement teams that include personnel from 10 the United States and Mexico; and 11 (C) the appropriate procedures for such 12 multinational teams. 13 SEC. 217. COOPERATION WITH THE GOVERNMENT OF MEX- 14 ICO. 15 (a) COOPERATION REGARDING BORDER SECU- 16 RITY.—The Secretary of State, in cooperation with the 17 Secretary and representatives of Federal, State, and local 18 law enforcement agencies that are involved in border secu- 19 rity and immigration enforcement efforts, shall work with 20 appropriate officials of the Government of Mexico to im- 21 prove coordination between the United States and Mexico 22 in— 23 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00375 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 376 •S 1258 IS (1) improving border security along the inter- 1 national border between the United States and Mex- 2 ico; 3 (2) reducing human trafficking and smuggling 4 between the United States and Mexico; 5 (3) reducing drug trafficking and smuggling be- 6 tween the United States and Mexico; 7 (4) reducing gang membership in the United 8 States and Mexico; 9 (5) reducing violence against women in the 10 United States and Mexico; and 11 (6) reducing other violence and criminal activ- 12 ity. 13 (b) COOPERATION REGARDING EDUCATION ON IMMI- 14 GRATION LAWS.—The Secretary of State, in cooperation 15 with other appropriate Federal officials, shall work with 16 appropriate officials of the Government of Mexico to edu- 17 cate citizens and nationals of Mexico regarding their eligi- 18 bility for nonimmigrant status in the United States to en- 19 sure that such citizens and nationals are not exploited 20 while working in the United States. 21 (c) COOPERATION REGARDING CIRCULAR MIGRA- 22 TION.—The Secretary of State, in cooperation with the 23 Secretary of Labor and other appropriate Federal offi- 24 cials, shall work with appropriate officials of the Govern- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00376 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 377 •S 1258 IS ment of Mexico to encourage circular migration of citizens 1 and nationals of Mexico, including— 2 (1) assisting in the development of economic op- 3 portunities; and 4 (2) providing job training for such citizens and 5 nationals. 6 (d) CONSULTATION REQUIREMENT.—The Secretary, 7 in cooperation with State and local government officials 8 in the United States, shall cooperate with their counter- 9 parts in Mexico to enhance border security structures 10 along the international border between the United States 11 and Mexico, as authorized by this title, by— 12 (1) soliciting the views of affected communities; 13 (2) lessening tensions; and 14 (3) fostering greater understanding and strong- 15 er cooperation on border security structures and 16 other important security issues of mutual concern. 17 (e) ANNUAL REPORT.—Not later than 180 days after 18 the date of the enactment of this Act, and annually there- 19 after, the Secretary of State shall submit a report to Con- 20 gress that describes the actions taken by the United States 21 and Mexico pursuant to this section. 22 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00377 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 378 •S 1258 IS SEC. 218. EXPANSION OF COMMERCE SECURITY PRO- 1 GRAMS. 2 (a) CUSTOMS-TRADE PARTNERSHIP AGAINST TER- 3 RORISM.— 4 (1) IN GENERAL.—Not later than 180 days 5 after the date of the enactment of this Act, the 6 Commissioner, U.S. Customs and Border Protection, 7 in consultation with the Secretary, shall develop a 8 plan to expand the programs of the Customs-Trade 9 Partnership Against Terrorism established pursuant 10 to section 211 of the SAFE Port Act (6 U.S.C. 11 961), including adding additional personnel for such 12 programs along the Northern border and the South- 13 ern border. 14 (2) C-TPAT PROGRAMS.—The programs re- 15 ferred to in paragraph (1) include— 16 (A) the Business Anti-Smuggling Coali- 17 tion; 18 (B) the Carrier Initiative Program; 19 (C) the Americas Counter Smuggling Ini- 20 tiative; 21 (D) the Container Security Initiative estab- 22 lished pursuant to section 205 of the SAFE 23 Port Act (6 U.S.C. 945); 24 (E) the Free and Secure Trade Initiative; 25 and 26 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00378 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 379 •S 1258 IS (F) other industry partnership programs 1 administered by the Commissioner. 2 (b) DEMONSTRATION PROGRAMS.—Not later than 3 180 days after the date of the enactment of this Act, the 4 Commissioner shall— 5 (1) implement, on a demonstration basis, a 6 Customs-Trade Partnership Against Terrorism pro- 7 gram, which has been successfully implemented 8 along the Northern border and the Southern border; 9 and 10 (2) establish a demonstration program to de- 11 velop a cooperative trade security system to improve 12 supply chain security. 13 SEC. 219. NORTHERN BORDER AND SOUTHERN BORDER 14 DRUG PROSECUTION INITIATIVE. 15 (a) REIMBURSEMENT TO STATE AND LOCAL PROS- 16 ECUTORS FOR PROSECUTING FEDERALLY INITIATED 17 DRUG CASES.—Subject to the availability of appropria- 18 tions, the Attorney General shall reimburse State and 19 county prosecutors located in States along the Northern 20 border or the Southern border for prosecuting federally 21 initiated and referred drug cases. 22 (b) AUTHORIZATION OF APPROPRIATIONS.—There 23 are authorized to be appropriated such sums as may be 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00379 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 380 •S 1258 IS necessary for each of the fiscal years 2012 through 2016 1 to carry out subsection (a). 2 SEC. 220. BORDER RELIEF GRANT PROGRAM. 3 (a) GRANTS AUTHORIZED.— 4 (1) IN GENERAL.—The Attorney General may 5 award grants, on a competitive basis, to— 6 (A) eligible law enforcement agencies or a 7 coalition of such agencies, including sheriff’s of- 8 fices, police departments, and tribal police de- 9 partments; and 10 (B) institutions of higher education that 11 provide assistance to law enforcement agencies 12 in counties described in subparagraph (A) or 13 (B) of subsection (e)(1) to provide the resources 14 described in subsection (b)(4). 15 (2) PRIORITY.—In awarding grants for the uses 16 described in paragraphs (1) through (3) of sub- 17 section (b), the Attorney General shall give priority 18 to law enforcement agencies— 19 (A) located in a county that is within 100 20 miles from the Northern border or the Southern 21 border; and 22 (B) that are in compliance with Federal 23 and State racial profiling laws and guidelines. 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00380 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 381 •S 1258 IS (3) DURATION.—Grants awarded under this 1 section may not exceed 2 years. 2 (4) SUBSEQUENT GRANTS.—A grantee desiring 3 continued grant funding after the expiration of the 4 initial grant shall reapply for such funding. 5 (5) PROHIBITION.—The Attorney General may 6 not award a grant under this section to any appli- 7 cant that is under investigation for a violation of 8 Federal or State racial profiling laws or guidelines. 9 (b) USE OF FUNDS.—Grants awarded under this sec- 10 tion may only be used to provide— 11 (1) additional resources for eligible law enforce- 12 ment agencies to address drug-related criminal activ- 13 ity; 14 (2) training and technical assistance related 15 to— 16 (A) narcotics-related kidnaping negotiation 17 and rescue tactics; 18 (B) intelligence and information sharing on 19 drug trafficking organizations; and 20 (C) the interdiction of narcotics, weapons, 21 and illegal drug proceeds; 22 (3) resources to combat criminal activities along 23 the Northern border and the Southern border by— 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00381 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 382 •S 1258 IS (A) obtaining, upgrading, or maintaining 1 equipment; 2 (B) hiring additional personnel; 3 (C) reimbursing operational expenditures, 4 including overtime and transportation costs; 5 and 6 (D) providing other assistance necessary to 7 address drug-related criminal activity; 8 (4) resources to facilitate information sharing 9 and collaboration by— 10 (A) establishing, maintaining, or enhancing 11 multi-jurisdictional intelligence gathering and 12 sharing activities; 13 (B) facilitating regional crime prevention 14 and reduction efforts; and 15 (C) strengthening partnerships between 16 Federal, State, tribal, and local law enforce- 17 ment agencies; and 18 (5) resources to enhance jails, community cor- 19 rections, and detention operations by— 20 (A) improving the administration and oper- 21 ations of correction functions related to reduc- 22 ing and preventing criminal narcotics activity; 23 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00382 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 383 •S 1258 IS (B) improving access to intelligence and 1 collaboration between law enforcement and cor- 2 rectional system personnel; 3 (C) reducing the recidivism rates of drug 4 offenders; and 5 (D) hiring detention, probation, parole, 6 and other corrections personnel for implementa- 7 tion of the efforts described in this paragraph. 8 (c) APPLICATION.— 9 (1) IN GENERAL.—Each eligible law enforce- 10 ment agency or coalition of such agencies seeking a 11 grant under this section shall submit an application 12 to the Attorney General at such time, in such man- 13 ner, and accompanied by such information as the 14 Attorney General may reasonably require. 15 (2) CONTENTS.—Each application submitted 16 under paragraph (1) shall— 17 (A) describe the activities for which assist- 18 ance under this section is sought; 19 (B) disclose whether the applicant has 20 been investigated for, or convicted of, a viola- 21 tion of Federal or State racial profiling laws; 22 and 23 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00383 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 384 •S 1258 IS (C) provide such additional assurances as 1 the Attorney General determines to be essential 2 to ensure compliance with this section. 3 (d) MONITORING AND OVERSIGHT.— 4 (1) IN GENERAL.—Each grantee under this sec- 5 tion shall submit a report to the Attorney General 6 that documents the use of grant funds received 7 under this section, including an assessment of their 8 utility in— 9 (A) protecting border community safety; 10 (B) preventing smuggling activities; and 11 (C) apprehending persons involved in vio- 12 lence and organized crime. 13 (2) USE OF INFORMATION.—The Attorney Gen- 14 eral shall analyze the information contained in the 15 reports submitted under paragraph (1) to determine 16 whether the grantee— 17 (A) used grant funds appropriately; and 18 (B) should be considered for a renewal 19 grant. 20 (e) DEFINITIONS.—In this section: 21 (1) ELIGIBLE LAW ENFORCEMENT AGENCY.— 22 The term ‘‘eligible law enforcement agency’’ means 23 a State, tribal, or local law enforcement agency, in- 24 cluding a community corrections agency and any 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00384 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 385 •S 1258 IS agency that employs prosecutors, probation officers, 1 or parole officers, which is located or performs du- 2 ties in— 3 (A) a county that is not more than 100 4 miles from a United States border with Mexico; 5 (B) a county that is not more than 100 6 miles from a United States border with Canada; 7 or 8 (C) a jurisdiction that has been designated 9 by the Director of the Office of Drug Control 10 Policy as a High Intensity Drug Trafficking 11 Area. 12 (2) HIGH INTENSITY DRUG TRAFFICKING 13 AREA.—The term ‘‘High Intensity Drug Trafficking 14 Area’’ means any jurisdiction so designated by the 15 National Drug Control Program under section 707 16 of the Office of National Drug Control Policy Reau- 17 thorization Act of 1998 (21 U.S.C. 1706). 18 (f) ASSESSMENT AND REPORT.—The Attorney Gen- 19 eral shall submit a biannual report to the Committee on 20 the Judiciary of the Senate and the Committee on the Ju- 21 diciary of the House of Representatives that assesses— 22 (1) the success of the grant program estab- 23 lished under this section in combating and reducing 24 drug-trafficking and drug-related criminal activity; 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00385 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 386 •S 1258 IS (2) the cost-effectiveness of the program; and 1 (3) the future value and viability of the pro- 2 gram. 3 (g) AUTHORIZATION OF APPROPRIATIONS.— 4 (1) IN GENERAL.—There are authorized to be 5 appropriated $100,000,000 for each of the fiscal 6 years 2012 through 2016 to carry out this section. 7 (2) ALLOCATION OF AUTHORIZED FUNDS.—Of 8 the amounts appropriated pursuant to paragraph 9 (1)— 10 (A) not more than 33 percent may be set 11 aside for High Intensity Drug Trafficking 12 Areas; and 13 (B) not more than 30 percent may be used 14 for activities described in paragraphs (2) and 15 (5) of subsection (b). 16 (3) SUPPLEMENT NOT SUPPLANT.—Amounts 17 appropriated for grants pursuant to paragraph (1) 18 shall be used to supplement, and not to supplant, 19 other State, tribal, and local public funds obligated 20 for the purposes described in subsection (b). 21 SEC. 221. REPORT ON DEATHS AND STRATEGY STUDY. 22 (a) IN GENERAL.—The Commissioner of U.S. Cus- 23 toms and Border Protection shall— 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00386 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 387 •S 1258 IS (1) collect statistics relating to deaths occurring 1 at the Southern border, including— 2 (A) the causes of the deaths; and 3 (B) the total number of deaths; 4 (2) publish the statistics collected under para- 5 graph (1) on a quarterly basis; and 6 (3) not later than 1 year after the date of the 7 enactment of this Act, and annually thereafter, sub- 8 mit a report to the Secretary that— 9 (A) analyzes trends with respect to the sta- 10 tistics collected under paragraph (1) during the 11 preceding year; and 12 (B) recommends actions to reduce and pre- 13 vent the deaths described in paragraph (1)(B). 14 (b) AUTHORIZATION OF APPROPRIATIONS.—There 15 are authorized to be appropriated such sums as may be 16 necessary for each of the fiscal years 2012 through 2016 17 to carry out this section. 18 SEC. 222. IMMIGRATION AND UNITED STATES-MEXICO BOR- 19 DER ENFORCEMENT COMMISSION. 20 (a) ESTABLISHMENT OF COMMISSION.— 21 (1) IN GENERAL.—There is established an inde- 22 pendent commission to be known as the Immigration 23 and United States-Mexico Border Enforcement 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00387 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 388 •S 1258 IS Commission (referred to in this section as the ‘‘Com- 1 mission’’). 2 (2) PURPOSES.—The purposes of the Commis- 3 sion are— 4 (A) to study the overall enforcement strat- 5 egies, programs, and policies of Federal agen- 6 cies along the Southern border, including the 7 Department, the Department of Justice, and 8 other relevant agencies; 9 (B) to strengthen relations and collabora- 10 tion between communities in the border regions 11 and the Department, the Department of Jus- 12 tice, and other Federal agencies that carry out 13 such strategies, programs, and policies; 14 (C) to ensure that the strategies, pro- 15 grams, and policies of Federal agencies along 16 the Southern border and the agents and em- 17 ployees charged to implement such strategies, 18 programs, and policies protect the due process, 19 civil, and human rights of all individuals and 20 communities at and near the Southern border; 21 and 22 (D) to make recommendations to the 23 President and Congress with respect to such 24 strategies, programs, and policies. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00388 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 389 •S 1258 IS (3) MEMBERSHIP.— 1 (A) IN GENERAL.—The Commission shall 2 be composed of 16 voting members and 2 non- 3 voting members. 4 (B) APPOINTMENT OF VOTING MEM- 5 BERS.—The Governors of the States of Cali- 6 fornia, New Mexico, Arizona, and Texas shall 7 each appoint 4 voting members to the Commis- 8 sion, of whom— 9 (i) 1 shall be a local elected official 10 from the State’s border region; 11 (ii) 1 shall be a local law enforcement 12 official from the State’s border region; and 13 (iii) 2 shall be from the State’s com- 14 munities of academia, religious leaders, 15 civic leaders or community leaders. 16 (C) APPOINTMENT OF NONVOTING MEM- 17 BERS.—The Secretary and the Attorney Gen- 18 eral shall each appoint 1 nonvoting member to 19 the Commission. 20 (4) QUALIFICATIONS.— 21 (A) IN GENERAL.—Members of the Com- 22 mission shall be— 23 (i) individuals with expertise in migra- 24 tion, border enforcement and protection, 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00389 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 390 •S 1258 IS civil and human rights, community rela- 1 tions, cross-border trade and commerce, or 2 other pertinent qualifications or experience; 3 and 4 (ii) representative of a broad cross 5 section of perspectives from the region 6 along the Southern border. 7 (B) POLITICAL AFFILIATION.—Not more 8 than 2 members of the Commission appointed 9 by each Governor under paragraph (3)(B) may 10 be members of the same political party. 11 (C) NONGOVERNMENTAL APPOINTEES.— 12 An individual appointed as a voting member to 13 the Commission may not be an officer or em- 14 ployee of the Federal Government. 15 (5) DEADLINE FOR APPOINTMENT.—All mem- 16 bers of the Commission shall be appointed not later 17 than 6 months after the date of the enactment of 18 this Act. If any member of the Commission de- 19 scribed in paragraph (3)(A) is not appointed by such 20 date, the Commission shall carry out its duties 21 under this section without the participation of such 22 member. 23 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00390 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 391 •S 1258 IS (6) TERM OF SERVICE.—Members of the Com- 1 mission shall be appointed for terms lasting not 2 longer than the shorter of— 3 (A) 3 years; or 4 (B) the life of the Commission. 5 (7) VACANCIES.—Any vacancy in the Commis- 6 sion shall not affect its powers, but shall be filled in 7 the same manner in which the original appointment 8 was made. 9 (8) MEETINGS.— 10 (A) INITIAL MEETING.—The Commission 11 shall meet and begin the operations of the Com- 12 mission as soon as practicable. 13 (B) SUBSEQUENT MEETINGS.—After its 14 initial meeting, the Commission shall meet upon 15 the call of the Chairman or a majority of its 16 members. 17 (C) OUTREACH.—The Commission shall 18 formulate and implement an effective outreach 19 strategy to border communities. 20 (9) QUORUM.—Nine members of the Commis- 21 sion shall constitute a quorum. 22 (10) CHAIR AND VICE CHAIR.—The voting 23 members of the Commission shall elect a Chairman 24 and Vice Chairman from among its members, who 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00391 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 392 •S 1258 IS shall serve in such capacities for the life of the Com- 1 mission or until removed by the majority vote of a 2 quorum. 3 (11) STRUCTURE.—The Commission shall have 4 a Federal, regional, and local review structure, di- 5 vided into 2 subcommittees, of which— 6 (A) 1 shall focus on border technology, 7 equipment, and infrastructure; and 8 (B) 1 shall focus on border and immigra- 9 tion enforcement policies and programs. 10 (b) DUTIES.—The Commission shall review, examine, 11 and make recommendations regarding immigration and 12 border enforcement policies, strategies, and programs, in- 13 cluding recommendations regarding— 14 (1) the compliance of the Department and other 15 immigration and border-related agencies with exist- 16 ing laws and regulations; 17 (2) the extent to which agency policies and 18 practices protect the civil rights of migrants and 19 border community residents, including policies and 20 practices relating to engagement, detention, appre- 21 hension, use of force, definition and use of reason- 22 able suspicion and probable cause, and racial 23 profiling; 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00392 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 393 •S 1258 IS (3) the frequency, adequacy, and effectiveness 1 of human and civil rights training of border enforce- 2 ment personnel and others from Federal agencies 3 who have contact with the public near the Southern 4 border; 5 (4) the extent to which— 6 (A) the complaint process is transparent 7 and accessible to the public; 8 (B) investigations are opened as necessary 9 and are effectively pursued; and 10 (C) complaints are resolved in a timely and 11 transparent manner; 12 (5) the effectiveness and capacity of agency 13 oversight, accountability, and management, including 14 prevention and disciplinary policies involving use of 15 force, abuse, malfeasance, corruption, and illegal ac- 16 tivity; 17 (6) the effect of operations, technology, and en- 18 forcement infrastructure along the Southern border 19 on the— 20 (A) environment; 21 (B) cross border traffic and commerce; 22 (C) privacy rights and other civil liberties; 23 and 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00393 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 394 •S 1258 IS (D) the quality of life of border commu- 1 nities; 2 (7) the extent to which State and local law en- 3 forcement engage in the enforcement of Federal im- 4 migration law; 5 (8) the extent of compliance with due process 6 standards and equal protection of the law for immi- 7 grants and other individuals at and near the South- 8 ern border; 9 (9) whether border policies and agencies are ac- 10 complishing their stated goals; and 11 (10) any other matters regarding immigration 12 and border enforcement policies, strategies, and pro- 13 grams that the Commission determines to be appro- 14 priate. 15 (c) POWERS OF COMMISSION.— 16 (1) HEARINGS AND EVIDENCE.—The Commis- 17 sion and any subcommittee or member of the Com- 18 mission authorized by the Commission may, for the 19 purpose of carrying out this title— 20 (A) hold hearings, sit and act, take testi- 21 mony, receive evidence, and administer oaths; 22 and 23 (B) request the attendance and testimony 24 of such witnesses and the production of such 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00394 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 395 •S 1258 IS books, records, correspondence, memoranda, pa- 1 pers, and documents, as the Commission or 2 such authorized subcommittee or member deter- 3 mines to be advisable. 4 (2) RECOMMENDATIONS.— 5 (A) IN GENERAL.—The Commission may 6 make recommendations to the Secretary on the 7 disposition of cases and the discipline of per- 8 sonnel under the Immigration and Nationality 9 Act (8 U.S.C. 1101 et seq.). 10 (B) RESPONSE.—Not later than 180 days 11 after receipt a report from the Commission, the 12 Secretary shall issue a response that describes 13 how the Department, the Department of Jus- 14 tice, and the Department of Defense have ad- 15 dressed the recommendations included in such 16 report. 17 (3) CONTRACTING.—The Commission may 18 enter into contracts to enable the Commission to dis- 19 charge its duties under this title. 20 (4) INFORMATION FROM FEDERAL AGENCIES.— 21 (A) IN GENERAL.—Upon request made by 22 the Chairman, the chairman of any sub- 23 committee created by a majority of the Com- 24 mission, or any member designated by a major- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00395 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 396 •S 1258 IS ity of the Commission, the Commission may se- 1 cure information, suggestions, estimates, and 2 statistics for the purposes of this title directly 3 from any executive department, bureau, agency, 4 board, commission, office, independent estab- 5 lishment, or instrumentality of the Federal Gov- 6 ernment, which shall, to the extent authorized 7 by law, furnish such information, suggestions, 8 estimates, and statistics directly to the Commis- 9 sion. 10 (B) RECEIPT, HANDLING, STORAGE, AND 11 DISSEMINATION.—Information may only be re- 12 ceived, handled, stored, and disseminated by 13 members of the Commission and its staff in ac- 14 cordance with all applicable statutes, regula- 15 tions, and Executive orders. 16 (5) ASSISTANCE FROM FEDERAL AGENCIES.— 17 (A) GENERAL SERVICES ADMINISTRA- 18 TION.—The Administrator of General Services 19 shall provide, on a reimbursable basis, adminis- 20 trative support to the Commission and other 21 services required for the performance of the 22 Commission’s functions. 23 (B) OTHER DEPARTMENTS AND AGEN- 24 CIES.—In addition to the assistance described 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00396 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 397 •S 1258 IS in paragraph (1), Federal departments and 1 agencies may provide the Commission with such 2 services, funds, facilities, staff, and other sup- 3 port services as may be authorized by law. 4 (6) POSTAL SERVICES.—The Commission may 5 use the United States mails in the same manner and 6 under the same conditions as departments and agen- 7 cies of the United States. 8 (d) COMPENSATION.— 9 (1) IN GENERAL.—Members of the Commission 10 shall serve without pay. 11 (2) REIMBURSEMENT OF EXPENSES.—All mem- 12 bers of the Commission shall be reimbursed for rea- 13 sonable travel expenses and subsistence, and other 14 reasonable and necessary expenses incurred by them 15 in the performance of their duties. 16 (e) TRAINING.—The Commission shall establish a 17 process and criteria by which Commission members re- 18 ceive orientation and training on human, constitutional, 19 and civil rights. 20 (f) REPORT.—Not later than 2 years after the date 21 of the meeting called pursuant to subsection (a)(8)(A), the 22 Commission shall submit a report to the President and 23 Congress that contains— 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00397 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 398 •S 1258 IS (1) findings with respect to the duties of the 1 Commission; 2 (2) recommendations regarding border and im- 3 migration enforcement policies, strategies, and pro- 4 grams; 5 (3) suggestions for the implementation of the 6 Commission’s recommendations; 7 (4) a recommendation as to whether the Com- 8 mission should continue to operate after the sunset 9 date set forth in subsection (h); and 10 (5) if continued operations are recommended 11 under paragraph (4), a description of the purposes 12 and duties recommended to be carried out by the 13 Commission after the sunset date set forth in sub- 14 section (h). 15 (g) AUTHORIZATION OF APPROPRIATIONS.—There 16 are authorized to be appropriated such sums as may be 17 necessary for each of the fiscal years 2012 through 2014 18 to carry out this section. 19 (h) SUNSET.—Unless the Commission is authorized 20 by Congress to continue operations after such date, the 21 Commission shall terminate on the date that is 60 days 22 after the date on which the Commission submits the report 23 described in subsection (f). 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00398 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 399 •S 1258 IS SEC. 223. PREEMPTION. 1 (a) IN GENERAL.—Except as provided in subsections 2 (b) and (c), this Act preempts any State or local law, li- 3 censing requirement, or other standard, requirement, ac- 4 tion or instrument that— 5 (1) discriminates among persons on the basis of 6 immigration status; or 7 (2) imposes any sanction or liability— 8 (A) on any person based on his or her im- 9 migration status; 10 (B) on any person or entity based on the 11 immigration status of its clients, employees, 12 tenants, or other associates; or 13 (C) based on a violation or alleged viola- 14 tion of immigration law. 15 (b) EFFECT OF CONVICTION.—Notwithstanding sub- 16 section (a)(2)(C), a State or political subdivision of a State 17 may take account of a Federal conviction for an immigra- 18 tion-related crime in the same manner as any other Fed- 19 eral criminal conviction. 20 (c) LIMITATION.—Nothing in this Act may be con- 21 strued to preempt— 22 (1) State or local discrimination based on immi- 23 gration status if such discrimination is explicitly au- 24 thorized by Federal law; or 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00399 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 400 •S 1258 IS (2) State or local citizenship requirements for 1 voting, jury service, elective office, or other impor- 2 tant governmental positions, to the extent such re- 3 quirements comply with the Constitution of the 4 United States. 5 (d) DEFINED TERM.—In this section, the term ‘‘im- 6 migration status’’ refers to a person’s— 7 (1) actual or perceived present or previous visa 8 classification, refugee status, temporary protected 9 status, status as an immigrant lawfully admitted for 10 permanent residence, lawful presence, work author- 11 ization, or other classification or category authorized 12 under this Act; and 13 (2) lack of any status referred to in paragraph 14 (1). 15 SEC. 224. INHERENT AUTHORITY. 16 Section 287(g) (8 U.S.C. 1357(g)) is amended by 17 striking paragraph (10) and inserting the following: 18 ‘‘(10) Except as provided in sections 103(a)(10), 19 103(a)(11), 242(c), and 274(c), or an agreement under 20 this subsection, the authority to investigate, identify, ap- 21 prehend, arrest, or detain persons for any violation of this 22 Act or any regulation issued pursuant to this Act— 23 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00400 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 401 •S 1258 IS ‘‘(A) is restricted to immigration officers and 1 employees of the Department of Homeland Security; 2 and 3 ‘‘(B) is subject to the specific limitations set 4 forth in this Act. 5 ‘‘(11)(A) Not later than 60 days after the end of each 6 fiscal year, the Secretary of Homeland Security shall— 7 ‘‘(i) review the compliance of the State or local 8 government with the terms of each agreement under 9 this subsection; and 10 ‘‘(ii) prepare a written report that contains the 11 results of the compliance review and any rec- 12 ommendations to improve compliance with such 13 agreement. 14 ‘‘(B) Not later than 120 days after date on which 15 recommendations are issued under subparagraph (A)(ii), 16 the Secretary shall— 17 ‘‘(i) review the implementation of such rec- 18 ommendations; and 19 ‘‘(ii) inform the State or local government of 20 any unresolved recommendations. 21 ‘‘(C) If 1 or more of the recommendations issued 22 under subparagraph (A)(ii) remain unresolved at the time 23 of the subsequent annual compliance review, the Secretary 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00401 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 402 •S 1258 IS shall immediately terminate the State or local govern- 1 ment’s agreement under this subsection.’’. 2 SEC. 225. BORDER PROTECTION STRATEGY. 3 (a) IN GENERAL.—Not later than July 1, 2012, the 4 Secretary, the Secretary of the Interior, the Secretary of 5 Agriculture, the Secretary of Defense, and the Secretary 6 of Commerce, in consultation with State, tribal, and local 7 government officials, shall jointly develop and submit to 8 Congress a border protection strategy for the Northern 9 border and the Southern border. 10 (b) ELEMENTS OF THE STRATEGY.—The strategy 11 developed under subsection (a) shall include— 12 (1) a comparative analysis of the levels of bor- 13 der security, based on auditable and verifiable data, 14 achievable through alternative tactical infrastructure 15 and other security measures, including an assess- 16 ment of— 17 (A) pedestrian fencing; 18 (B) vehicle barriers, especially in the vicin- 19 ity of existing or planned roads; 20 (C) additional Border Patrol agents; 21 (D) efficacy of natural barriers and open 22 space in response to unauthorized or unlawful 23 border crossing; 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00402 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 403 •S 1258 IS (E) fielding of advanced remote sensing 1 and information integration technology, includ- 2 ing the use of— 3 (i) unmanned aerial vehicles; 4 (ii) other advanced technologies and 5 systems developed and employed, or under 6 development, for tactical surveillance, 7 multisource information integration, and 8 response analysis in difficult terrain and 9 under adverse environmental conditions; 10 (F) regional, urban, and rural variation in 11 border security methodologies, including the in- 12 corporation of natural barriers; 13 (G) enhanced cooperation with, and assist- 14 ance to, intelligence, security, and law enforce- 15 ment agencies in Canada and Mexico in detect- 16 ing, reporting, analyzing, and successfully re- 17 sponding to unauthorized or unlawful border 18 crossings from or into Canada or Mexico; and 19 (H) removal of obstructive nonnative vege- 20 tation; 21 (2) a comprehensive analysis of cost and other 22 impacts of security measures assessed in paragraph 23 (1), including an assessment of— 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00403 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 404 •S 1258 IS (A) land acquisition costs, including re- 1 lated litigation and other costs; 2 (B) construction costs, including labor and 3 material costs; 4 (C) maintenance costs for the next 25 5 years; 6 (D) contractor costs; 7 (E) management and overhead costs; 8 (F) the impacts on wildlife, wildlife habi- 9 tat, natural communities, and functioning cross- 10 border wildlife migration corridors and hydrol- 11 ogy (including water quantity, quality, and nat- 12 ural hydrologic flows) on Federal, State, tribal, 13 local government, and private lands along the 14 Northern border and the Southern border; and 15 (G) the costs of fully mitigating the ad- 16 verse impacts to Federal, State, tribal, local, 17 and private lands, waters (including water qual- 18 ity, quantity, and hydrological flows), wildlife, 19 and wildlife habitats, including, if such action is 20 possible, the full costs of the replacement or 21 restoration of severed wildlife migration cor- 22 ridors with protected corridors of equivalent bi- 23 ological functionality, as determined by each 24 Secretary concerned, in consultation with ap- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00404 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 405 •S 1258 IS propriate authorities of State, tribal, and local 1 governments and appropriate authorities of the 2 Government of Canada and the Government of 3 Mexico; 4 (3) a comprehensive compilation of the fiscal in- 5 vestments in acquiring or managing Federal, State, 6 tribal, local, and private lands and waters in the vi- 7 cinity of, or ecologically related to, the land borders 8 of the United States that have been acquired or 9 managed in whole or in part for conservation pur- 10 poses (including the creation or management of pro- 11 tected wildlife migration corridors) in— 12 (A) units of the National Park System; 13 (B) National Forest System land; 14 (C) land under the jurisdiction of the Bu- 15 reau of Land Management; 16 (D) land under the jurisdiction of the 17 United States Fish and Wildlife Service; 18 (E) other relevant land under the jurisdic- 19 tion of the Department of the Interior or the 20 Department of Agriculture; 21 (F) land under the jurisdiction of the De- 22 partment of Defense or any military depart- 23 ment; 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00405 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 406 •S 1258 IS (G) land under the jurisdiction of the De- 1 partment of Commerce; 2 (H) tribal lands; 3 (I) State and private lands; and 4 (J) lands within Canada or Mexico; and 5 (4) recommendations for strategic border secu- 6 rity management based on— 7 (A) comparative security described in para- 8 graph (1); 9 (B) the cost-benefit analysis described in 10 paragraph (2); and 11 (C) the protection of investments in the 12 lands specified in paragraph (3). 13 (c) TRAINING.— 14 (1) REQUIRED TRAINING.—The Secretary, in 15 cooperation with the Secretary concerned, shall pro- 16 vide— 17 (A) natural resource protection training for 18 U.S. Customs and Border Protection agents or 19 other Federal personnel assigned to plan or 20 oversee the construction or operation of border 21 security tactical infrastructure or to patrol land 22 along or in the vicinity of a land border of the 23 United States; and 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00406 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 407 •S 1258 IS (B) cultural resource training for U.S. 1 Customs and Border Protection agents and 2 other Federal personnel assigned to plan or 3 oversee the construction or operation of border 4 security tactical infrastructure or to patrol trib- 5 al lands. 6 (2) ADDITIONAL CONSIDERATIONS.—In devel- 7 oping and providing training under paragraph 8 (1)(A), the Secretary shall coordinate with the Sec- 9 retary concerned and the relevant tribal government 10 to ensure that such training— 11 (A) is appropriate to the mission of the 12 relevant agency; and 13 (B) is focused on achieving border security 14 objectives while avoiding or minimizing the ad- 15 verse impact on natural and cultural resources 16 resulting from border security tactical infra- 17 structure, operations, or other activities. 18 (d) DEFINED TERM.—In this section, the term ‘‘Sec- 19 retary concerned’’ means— 20 (1) the Secretary of Agriculture, with respect to 21 land under the jurisdiction of the Secretary of Agri- 22 culture; 23 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00407 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 408 •S 1258 IS (2) the Secretary of the Interior, with respect 1 to land under the jurisdiction of the Secretary of the 2 Interior; 3 (3) the Secretary of Defense, with respect to 4 land under the jurisdiction of the Secretary of De- 5 fense or the secretary of a military department; and 6 (4) the Secretary of Commerce, with respect to 7 land under the jurisdiction of the Secretary of Com- 8 merce. 9 SEC. 226. BORDER COMMUNITIES LIAISON OFFICE. 10 (a) ESTABLISHMENT.—The Secretary shall establish, 11 in consultation with the Office of Civil Rights and Civil 12 Liberties, a Border Communities Liaison Office in every 13 Border Patrol sector on the Southern border or the North- 14 ern border. 15 (b) PURPOSE.—The purpose of the Border Commu- 16 nities Liaison Office shall be— 17 (1) to foster and institutionalize consultation 18 with border communities; 19 (2) to consult with border communities on— 20 (A) agency policies, directives, and laws; 21 (B) agency strategies and strategy develop- 22 ment; and 23 (C) agency services and operational issues; 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00408 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 409 •S 1258 IS (3) to receive assessments on agency perform- 1 ance from border communities; and 2 (4) to receive complaints regarding agency per- 3 formance and agent conduct. 4 (c) AUTHORIZATION OF APPROPRIATIONS.—There 5 are authorized to be appropriated such sums as may be 6 necessary in each of the fiscal years 2012 through 2016 7 to carry out this section. 8 SEC. 227. AUTHORIZATION OF APPROPRIATIONS. 9 (a) IN GENERAL.—In addition to any funds other- 10 wise available, there are authorized to be appropriated 11 such sums as may be necessary for the fiscal years 2012 12 through 2016 to carry out this part. 13 (b) INTERNATIONAL AGREEMENTS.—Amounts ap- 14 propriated pursuant to subsection (a) may be used to im- 15 plement projects that are authorized under this part and 16 are described in— 17 (1) the Declaration on Embracing Technology 18 and Cooperation to Promote the Secure and Effi- 19 cient Flow of People and Commerce across our 20 Shared Border between the United States and Mex- 21 ico, agreed to March 22, 2002, Monterrey, Mexico; 22 or 23 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00409 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 410 •S 1258 IS (2) the Smart Border Declaration between the 1 United States and Canada, agreed to December 12, 2 2001, Ottawa, Canada. 3 Subtitle B—Interior Enforcement 4 PART I—PREVENTING UNAUTHORIZED ENTRIES 5 AND ENSURING REMOVAL 6 SEC. 235. US–VISIT SYSTEM. 7 (a) IN GENERAL.—Not later than 6 months after the 8 date of the enactment of this Act, the Secretary, in con- 9 sultation with the heads of other appropriate Federal 10 agencies, shall submit to Congress a schedule for— 11 (1) equipping all ports of entry of the United 12 States with the United States-Visitor and Immigrant 13 Status Indicator Technology system (referred to in 14 this section as ‘‘US–VISIT’’) implemented under 15 section 110 of the Illegal Immigration Reform and 16 Immigrant Responsibility Act of 1996 (8 U.S.C. 17 1365a), including all necessary changes to infra- 18 structure at the ports of entry to fully deploy US– 19 VISIT; 20 (2) developing and deploying the exit compo- 21 nent of US–VISIT at such ports of entry; and 22 (3) making interoperable all immigration 23 screening systems operated by the Secretary. 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00410 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 411 •S 1258 IS (b) VISA EXIT TRACKING SYSTEM.—Not later than 1 18 months after the date of the enactment of this Act, 2 the Secretary shall establish and deploy a system capable 3 of recording the departure of aliens admitted on tem- 4 porary nonimmigrant visas under the Immigration and 5 Nationality Act (8 U.S.C. 1101 et seq.)— 6 (1) at designated ports of entry; and 7 (2) in coordination with the Secretary of State, 8 at designated United States consulates. 9 SEC. 236. ILLEGAL ENTRY AND REENTRY. 10 (a) ILLEGAL ENTRY.—Section 275(b) (8 U.S.C. 11 1325(b)) is amended to read as follows: 12 ‘‘(b) IMPROPER TIME OR PLACE; CIVIL PEN- 13 ALTIES.—Any alien older than 18 years of age who is ap- 14 prehended while entering or attempting to enter, or know- 15 ingly crossing or attempting to cross the border to, the 16 United States at a time or place that has not been des- 17 ignated as a lawful entry by immigration officers shall be 18 subject to a civil penalty, in addition to any criminal or 19 other civil penalties that may be imposed under any other 20 provision of law, in an amount equal to— 21 ‘‘(1) not less than $250 or more than $500 for 22 each such entry or attempted entry; or 23 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00411 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 412 •S 1258 IS ‘‘(2) twice the amount specified in paragraph 1 (1), if the alien had previously been subject to a civil 2 penalty under this subsection.’’. 3 (b) ILLEGAL REENTRY.—Section 276 (8 U.S.C. 4 1326) is amended to read as follows: 5 ‘‘SEC. 276. REENTRY OF REMOVED ALIENS. 6 ‘‘(a) REENTRY AFTER REMOVAL.—Any alien who 7 has been denied admission, excluded, deported, or re- 8 moved, or who has departed the United States while an 9 order of exclusion, deportation, or removal is outstanding, 10 and subsequently enters, attempts to enter, crosses the 11 border to, attempts to cross the border to, or is at any 12 time found in the United States, shall be fined under title 13 18, United States Code, imprisoned not more than 2 14 years, or both. 15 ‘‘(b) REENTRY OF CRIMINAL OFFENDERS.—In addi- 16 tion to the penalty provided in subsection (a), any alien 17 described in that subsection— 18 ‘‘(1) whose removal was subsequent to a convic- 19 tion for 3 or more misdemeanors involving drugs or 20 crimes against the person, or a felony for which the 21 alien was sentenced to a term of imprisonment of 22 more than 12 months before such removal or depar- 23 ture, shall be fined under title 18, United States 24 Code, imprisoned not more than 10 years, or both; 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00412 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 413 •S 1258 IS ‘‘(2) whose removal was subsequent to a convic- 1 tion for a felony involving drugs or crimes against 2 the person before such removal or departure for 3 which the alien was sentenced to a term of imprison- 4 ment of not less than 30 months, shall be fined 5 under such title 18, imprisoned not more than 10 6 years, or both; 7 ‘‘(3) who has been excluded from the United 8 States pursuant to section 235(c) because the alien 9 was excludable under section 212(a)(3)(B) or has 10 been removed from the United States, and who 11 thereafter, without the permission of the Attorney 12 General, enters the United States, or attempts to do 13 so, shall be fined under title 18, United States Code, 14 and imprisoned for a period of 10 years, which sen- 15 tence shall not run concurrently with any other sen- 16 tence; 17 ‘‘(4) who was removed from the United States 18 pursuant to section 241(a)(4)(B) and who there- 19 after, without the permission of the Attorney Gen- 20 eral, enters, attempts to enter, or is at any time 21 found in, the United States (unless the Attorney 22 General has expressly consented to such alien’s re- 23 entry) shall be fined under title 18, United States 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00413 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 414 •S 1258 IS Code, imprisoned for not more than 10 years, or 1 both; 2 ‘‘(5) whose removal was subsequent to a convic- 3 tion for an aggravated felony before such removal or 4 departure for which the alien was sentenced to a 5 term of imprisonment of not less than 60 months, 6 shall be fined under such title 18, imprisoned not 7 more than 20 years, or both; or 8 ‘‘(6) was convicted for 3 felonies before such re- 9 moval or departure, shall be fined under such title 10 18, imprisoned not more than 25 years, or both. 11 ‘‘(c) PROOF OF PRIOR CONVICTIONS.—The prior con- 12 victions described in subsection (b) are elements of the 13 crimes described in that subsection. The penalties set 14 forth in subsection (b) shall apply only in cases in which 15 the conviction or convictions that form the basis for the 16 additional penalty are— 17 ‘‘(1) alleged in the indictment or information; 18 and 19 ‘‘(2) proven beyond a reasonable doubt at trial 20 or admitted by the defendant. 21 ‘‘(d) AFFIRMATIVE DEFENSES.—It shall be an af- 22 firmative defense to a violation of this section if— 23 ‘‘(1) the alien sought and received the express 24 consent of the Secretary of Homeland Security to re- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00414 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 415 •S 1258 IS apply for admission into the United States before 1 the alleged violation occurred; 2 ‘‘(2) with respect to an alien previously denied 3 admission and removed, the alien— 4 ‘‘(A) was not required to obtain such ad- 5 vance consent under this Act; and 6 ‘‘(B) had complied with all other laws and 7 regulations governing the alien’s admission into 8 the United States; or 9 ‘‘(3) the prior order of removal was based on 10 charges filed against the alien before the alien 11 reached 18 years of age. 12 ‘‘(e) LIMITATION ON COLLATERAL ATTACK ON UN- 13 DERLYING REMOVAL ORDER.—In a criminal proceeding 14 under this section, an alien may not challenge the validity 15 of the order described in subsection (a) or (b) unless the 16 alien demonstrates that— 17 ‘‘(1) the alien exhausted any administrative 18 remedies that may have been available to seek relief 19 against the order; 20 ‘‘(2) the removal proceedings at which the order 21 was issued improperly deprived the alien of the op- 22 portunity for judicial review; and 23 ‘‘(3) the entry of the order was fundamentally 24 unfair. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00415 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 416 •S 1258 IS ‘‘(f) RE-ENTRY OF ALIEN REMOVED PRIOR TO COM- 1 PLETION OF TERM OF IMPRISONMENT.—Any alien re- 2 moved pursuant to section 241(a)(4) who enters, attempts 3 to enter, crosses the border to, attempts to cross the bor- 4 der to, or is at any time found in, the United States— 5 ‘‘(1) shall be incarcerated for the remainder of 6 the sentence of imprisonment which was pending at 7 the time of deportation without any reduction for 8 parole or supervised release unless the alien affirma- 9 tively demonstrates that the Secretary of Homeland 10 Security has expressly consented to the alien’s re- 11 entry or the alien is prima facie eligible for protec- 12 tion from removal; and 13 ‘‘(2) shall be subject to such other penalties re- 14 lating to the reentry of removed aliens as may be 15 available under this section or any other provision of 16 law. 17 ‘‘(g) LIMITATION.—An individual, acting without 18 compensation or the expectation of compensation, is not 19 aiding and abetting a violation of this section by— 20 ‘‘(1) providing, or attempting to provide, an 21 alien with humanitarian assistance, including emer- 22 gency medical care or food; or 23 ‘‘(2) transporting the alien to a location where 24 such humanitarian assistance can be rendered with- 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00416 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 417 •S 1258 IS out compensation or the expectation of compensa- 1 tion.’’. 2 SEC. 237. DETERRING ALIENS ORDERED REMOVED FROM 3 REMAINING IN THE UNITED STATES UNLAW- 4 FULLY. 5 Section 212(a)(9)(A) (8 U.S.C. 1182(a)(9)(A)) is 6 amended— 7 (1) in clause (i), by striking ‘‘seeks admission 8 within 5 years of the date of such removal (or within 9 20 years’’ and inserting ‘‘seeks admission not later 10 than 5 years after the date of the alien’s removal (or 11 not later than 20 years after the alien’s removal’’; 12 and 13 (2) in clause (ii), by striking ‘‘seeks admission 14 within 10 years of the date of such alien’s departure 15 or removal (or within 20 years of’’ and inserting 16 ‘‘seeks admission not later than 10 years after the 17 date of the alien’s departure or removal (or not later 18 than 20 years after’’. 19 SEC. 238. BIOMETRIC SCREENING. 20 Section 212 (8 U.S.C. 1182) is amended— 21 (1) in subsection (a)(7), by adding at the end 22 the following: 23 ‘‘(C) WITHHOLDING INFORMATION.—Ex- 24 cept as provided in subsection (d)(2), any alien 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00417 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 418 •S 1258 IS who, through his or her own fault, fails or has 1 failed to comply with a lawful request for bio- 2 metric information is inadmissible.’’; and 3 (2) in subsection (d), by inserting after para- 4 graph (1) the following: 5 ‘‘(2) The Secretary may waive the application of sub- 6 section (a)(7)(C) for an individual alien or a class of 7 aliens. A decision by the Secretary to grant or deny a 8 waiver under this paragraph shall not be subject to re- 9 view.’’. 10 SEC. 239. ENCOURAGING ALIENS TO DEPART VOLUN- 11 TARILY. 12 (a) IN GENERAL.—Section 240B (8 U.S.C. 1229c) 13 is amended— 14 (1) in subsection (a)— 15 (A) by amending paragraph (1) to read as 16 follows: 17 ‘‘(1) IN GENERAL.—If an alien is not removable 18 under paragraph (2)(A)(iii) or (4) of section 19 237(a)— 20 ‘‘(A) the Secretary of Homeland Security 21 may permit the alien to voluntarily depart the 22 United States at the alien’s own expense under 23 this subsection instead of being subject to pro- 24 ceedings under section 240; or 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00418 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 419 •S 1258 IS ‘‘(B) the Attorney General may permit the 1 alien to voluntarily depart the United States at 2 the alien’s own expense under this subsection 3 after the initiation of removal proceedings 4 under section 240 and before the conclusion of 5 such proceedings before an immigration 6 judge.’’; 7 (B) in paragraph (2), by amending sub- 8 paragraph (A) to read as follows: 9 ‘‘(A) IN GENERAL.— 10 ‘‘(i) INSTEAD OF REMOVAL.—Subject 11 to subparagraph (B), the Secretary of 12 Homeland Security— 13 ‘‘(I) may not grant an alien per- 14 mission to voluntarily depart the 15 United States under paragraph (1)(A) 16 for a period exceeding 180 days; and 17 ‘‘(II) may require such alien to 18 post a voluntary departure bond, 19 which shall be surrendered upon proof 20 that the alien has departed the United 21 States within the time specified in 22 such bond. 23 ‘‘(ii) BEFORE THE CONCLUSION OF 24 REMOVAL PROCEEDINGS.— 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00419 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 420 •S 1258 IS ‘‘(I) LIMITATION.—The Attorney 1 General— 2 ‘‘(aa) may not grant an 3 alien permission to voluntarily 4 depart under paragraph (1)(B) 5 for a period exceeding 90 days; 6 and 7 ‘‘(bb) may only grant such 8 permission after determining that 9 the alien has the means to depart 10 the United States and intends to 11 do so. 12 ‘‘(II) VOLUNTARY DEPARTURE 13 BOND.—An immigration judge may— 14 ‘‘(aa) require an alien per- 15 mitted to voluntarily depart 16 under paragraph (1)(B) to post a 17 voluntary departure bond, in an 18 amount necessary to ensure that 19 the alien will depart, which shall 20 be surrendered upon proof that 21 the alien has departed the United 22 States within the time specified 23 in such bond; and 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00420 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 421 •S 1258 IS ‘‘(bb) waive the requirement 1 to post a voluntary departure 2 bond after determining that the 3 alien has presented— 4 ‘‘(AA) compelling evi- 5 dence that the posting of a 6 bond will pose a serious fi- 7 nancial hardship; and 8 ‘‘(BB) credible evidence 9 that such a bond is unneces- 10 sary to guarantee timely de- 11 parture.’’; 12 (C) by striking paragraph (3); and 13 (D) by redesignating paragraph (4) as 14 paragraph (3); 15 (2) by amending subsection (c) to read as fol- 16 lows: 17 ‘‘(c) CONDITIONS ON VOLUNTARY DEPARTURE.— 18 ‘‘(1) VOLUNTARY DEPARTURE AGREEMENT.— 19 Voluntary departure under this section may only be 20 granted as part of an affirmative agreement by the 21 alien. 22 ‘‘(2) CONCESSIONS BY THE SECRETARY.—In 23 connection with the alien’s agreement to voluntarily 24 depart under paragraph (1)(A), the Secretary of 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00421 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 422 •S 1258 IS Homeland Security may reduce the period of inad- 1 missibility under subparagraph (A) or (B)(i) of sec- 2 tion 212(a)(9). 3 ‘‘(3) ADVISALS.—Agreements relating to vol- 4 untary departure granted during removal pro- 5 ceedings under section 240, or at the conclusion of 6 such proceedings, shall be presented on the record 7 before the immigration judge, who shall advise the 8 alien of the consequences of a voluntary departure 9 agreement, including the consequences of failing to 10 comply with the agreement, before accepting such 11 agreement. 12 ‘‘(4) FAILURE TO COMPLY WITH AGREE- 13 MENT.—If an alien who has agreed to voluntarily 14 depart under this section fails to depart the United 15 States within the time allowed for voluntary depar- 16 ture or fails to comply with any other terms of the 17 agreement (including failure to timely post any re- 18 quired bond), unless such noncompliance is through 19 no fault of the alien, the alien is— 20 ‘‘(A) ineligible for the benefits of the 21 agreement; 22 ‘‘(B) subject to the penalties described in 23 subsection (d); and 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00422 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 423 •S 1258 IS ‘‘(C) subject to an alternate order of re- 1 moval if voluntary departure was granted under 2 subsection (a)(1)(B) or (b). 3 ‘‘(5) VOLUNTARY DEPARTURE PERIOD NOT AF- 4 FECTED.—Except as expressly agreed to by the Sec- 5 retary of Homeland Security in writing before the 6 expiration of the period allowed for voluntary depar- 7 ture, no motion, appeal, application, petition, or pe- 8 tition for review shall affect, reinstate, enjoin, delay, 9 stay, or toll the alien’s obligation to depart from the 10 United States during the period agreed to by the 11 alien and the Secretary.’’; 12 (3) by amending subsection (d) to read as fol- 13 lows: 14 ‘‘(d) PENALTIES FOR FAILURE TO DEPART.— 15 ‘‘(1) CIVIL PENALTY.—An alien who is per- 16 mitted to voluntarily depart under this section and 17 fails to leave the United States during the period 18 specified in the voluntary departure agreement or 19 otherwise violates the terms of such agreement shall 20 be liable for a civil penalty of $1,000. The voluntary 21 departure order shall specify the amount of the pen- 22 alty, which shall be acknowledged by the alien on the 23 record. 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00423 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 424 •S 1258 IS ‘‘(2) COLLECTION OF PENALTY.—If the Sec- 1 retary of Homeland Security establishes, by clear 2 and convincing evidence, that the alien failed to 3 leave the United States during the period specified 4 in the voluntary departure agreement— 5 ‘‘(A) no further procedure will be nec- 6 essary to establish the amount of the penalty; 7 ‘‘(B) the Secretary may collect the civil 8 penalty at any time thereafter and by whatever 9 means provided by law; and 10 ‘‘(C) the alien shall be ineligible for any 11 benefits under this chapter until this civil pen- 12 alty is paid.’’; and 13 (4) by amending subsection (e) to read as fol- 14 lows: 15 ‘‘(e) ELIGIBILITY.— 16 ‘‘(1) PRIOR GRANT OF VOLUNTARY DEPAR- 17 TURE.—An alien may not be permitted to volun- 18 tarily depart under this section if the Secretary of 19 Homeland Security or the Attorney General pre- 20 viously permitted the alien to depart voluntarily 21 under this section on or after the date of the enact- 22 ment of the CIR Act of 2011. 23 ‘‘(2) RULEMAKING.—The Secretary may pro- 24 mulgate regulations to limit eligibility or impose ad- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00424 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 425 •S 1258 IS ditional conditions for voluntary departure under 1 subsection (a)(1)(A) for any class of aliens.’’. 2 (b) EFFECTIVE DATE.—The amendments made by 3 this section shall apply with respect to all orders granting 4 voluntary departure under section 240B of the Immigra- 5 tion and Nationality Act (8 U.S.C. 1229c) made on or 6 after the date that is 180 days after the date of the enact- 7 ment of this Act. 8 SEC. 240. CANCELLATION OF VISAS. 9 Section 222(g) (8 U.S.C. 1202(g)) is amended— 10 (1) in paragraph (1), by striking ‘‘Attorney 11 General, such visa’’ and inserting ‘‘Secretary of 12 Homeland Security, such visa and any other non- 13 immigrant visa issued by the United States that is 14 in the possession of the alien’’; and 15 (2) in paragraph (2)(A), by striking ‘‘(other 16 than the visa described in paragraph (1)) issued in 17 a consular office located in the country of the alien’s 18 nationality’’ and inserting ‘‘(other than a visa de- 19 scribed in paragraph (1)) issued in a consular office 20 located in the country of the alien’s nationality or 21 foreign residence’’. 22 SEC. 241. PENALTIES RELATING TO VESSELS AND AIR- 23 CRAFT. 24 Section 243(c) (8 U.S.C. 1253(c)) is amended— 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00425 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 426 •S 1258 IS (1) by striking ‘‘Attorney General’’ each place 1 such term appears and inserting ‘‘Secretary of 2 Homeland Security’’; 3 (2) by striking ‘‘Commissioner’’ each place such 4 term appears and inserting ‘‘Secretary’’; and 5 (3) in paragraph (1)— 6 (A) in subparagraph (A), by striking 7 ‘‘$2,000’’ and inserting ‘‘$5,000’’; 8 (B) in subparagraph (B), by striking 9 ‘‘$5,000’’ and inserting ‘‘$10,000’’; and 10 (C) by amending paragraph (1)(C) to read 11 as follows: 12 ‘‘(C) COMPROMISE.—The Secretary of 13 Homeland Security, in the Secretary’s 14 unreviewable discretion and upon the receipt of 15 a written request, may mitigate the monetary 16 penalties required under this subsection for 17 each alien stowaway to an amount equal to not 18 less than $500, upon such terms that the Sec- 19 retary determines to be appropriate.’’. 20 SEC. 242. SANCTIONS FOR COUNTRIES THAT DELAY OR 21 PREVENT REPATRIATION OF THEIR CITIZENS 22 AND NATIONALS. 23 Sec. 243(d) (8 U.S.C. 1253(d)) is amended— 24 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00426 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 427 •S 1258 IS (1) by striking ‘‘Attorney General’’ each place 1 such term appears and inserting ‘‘Secretary of 2 Homeland Security’’ ; 3 (2) by inserting ‘‘or subsets of such visas’’ after 4 ‘‘both,’’; and 5 (3) by inserting ‘‘of State’’ after ‘‘Secretary’’ 6 the last place such term appears. 7 SEC. 243. STATE CRIMINAL ALIEN ASSISTANCE PROGRAM. 8 (a) AUTHORIZATION OF APPROPRIATIONS.—Section 9 241(i)(5)(C) (8 U.S.C. 1231(i)(5)(C)) is amended by 10 striking ‘‘to carry out this subsection’’ and all that follows 11 and inserting ‘‘$950,000,000 for each of the fiscal years 12 2012 through 2016 to carry out this subsection.’’. 13 (b) REIMBURSEMENT OF STATES FOR INDIRECT 14 COSTS RELATING TO THE INCARCERATION OF UNAU- 15 THORIZED ALIENS.—Section 501 of the Immigration Re- 16 form and Control Act of 1986 (8 U.S.C. 1365) is amend- 17 ed— 18 (1) by striking subsection (a) and inserting the 19 following: 20 ‘‘(a) REIMBURSEMENT OF STATES.—Subject to the 21 amounts provided in advance in appropriation Acts, the 22 Attorney General shall reimburse a State for— 23 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00427 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 428 •S 1258 IS ‘‘(1) the costs incurred by the State for the im- 1 prisonment of all unauthorized aliens convicted of a 2 felony by such State; and 3 ‘‘(2) the indirect costs related to the 4 imprisonments described in paragraph (1).’’; and 5 (2) by striking subsections (c) through (e) and 6 inserting the following: 7 ‘‘(c) ALLOCATION OF REIMBURSEMENTS.—Reim- 8 bursements under this section shall be allocated in a man- 9 ner that gives special consideration for any State that 10 shares a border with Mexico or with Canada. 11 ‘‘(d) DEFINITIONS.—In this section: 12 ‘‘(1) INDIRECT COSTS.—The term ‘indirect 13 costs’ includes— 14 ‘‘(A) court costs, county attorney costs, de- 15 tention costs, and criminal proceedings expendi- 16 tures that do not involve going to trial; 17 ‘‘(B) indigent defense costs; and 18 ‘‘(C) unsupervised probation costs. 19 ‘‘(2) STATE.—The term ‘State’ has the mean- 20 ing given such term in section 101(a)(36) of the Im- 21 migration and Nationality Act (8 U.S.C. 22 1101(a)(36)). 23 ‘‘(e) AUTHORIZATION OF APPROPRIATIONS.—There 24 are authorized to be appropriated $200,000,000 for each 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00428 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 429 •S 1258 IS of the fiscal years 2012 through 2016 to carry out sub- 1 section (a)(2).’’. 2 SEC. 244. PROCEDURES REGARDING ALIENS APPRE- 3 HENDED BY STATE AND LOCAL LAW EN- 4 FORCEMENT OFFICERS. 5 (a) ISSUANCE OF DETAINERS.—Section 287(d) (8 6 U.S.C. 1357(d)) is amended to read as follows: 7 ‘‘(d) ISSUANCE OF DETAINERS.— 8 ‘‘(1) DETERMINATION.—An authorized officer 9 or employee of the Department of Homeland Secu- 10 rity shall promptly determine whether or not to issue 11 a detainer to detain an alien who is arrested by a 12 Federal, State, or local law enforcement official for 13 a violation of any law relating to controlled sub- 14 stances if the law enforcement official— 15 ‘‘(A) has reason to believe that the alien 16 has not been lawfully admitted to the United 17 States or is otherwise not lawfully present in 18 the United States; 19 ‘‘(B) expeditiously informs such officer or 20 employee of the arrest and of facts concerning 21 the status of the alien; and 22 ‘‘(C) requests the Department of Home- 23 land Security to determine whether or not to 24 issue such detainer. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00429 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 430 •S 1258 IS ‘‘(2) CUSTODY.—If a detainer is issued pursu- 1 ant to paragraph (1) and the alien is not otherwise 2 detained by Federal, State, or local officials, the 3 Secretary shall effectively and expeditiously take 4 custody of the alien. 5 ‘‘(3) DATA COLLECTION.—The Secretary of 6 Homeland Security shall collect data regarding de- 7 tainers issued under this subsection, including— 8 ‘‘(A) the criminal charge for which the in- 9 dividual was arrested or convicted; 10 ‘‘(B) the date on which the detainer was 11 issued; 12 ‘‘(C) the basis for the issuance of the de- 13 tainer; 14 ‘‘(D) the date on which the detainer was 15 lifted; 16 ‘‘(E) the date on which a Federal or State 17 criminal court or other government entity or- 18 dered the release of the individual; 19 ‘‘(F) the date on which the Department of 20 Homeland Security took custody of the indi- 21 vidual; 22 ‘‘(G) the perceived race, ethnicity, and 23 country of origin of the individual against 24 whom the detainer was issued; 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00430 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 431 •S 1258 IS ‘‘(H) the age of the individual; 1 ‘‘(I) whether the individual was a victim of, 2 or a witness to, a crime; 3 ‘‘(J) the disposition of the criminal case 4 against the individual; 5 ‘‘(K) the ultimate disposition of the immi- 6 gration case, including whether the individual 7 was determined to be a United States citizen; 8 ‘‘(L) the grounds of removal, if applicable, 9 and any charges brought by the Secretary; and 10 ‘‘(M) the number of individuals removed 11 after the Secretary took custody while any 12 criminal matter was pending.’’. 13 (b) RULEMAKING.—The Secretary shall issue regula- 14 tions that require officers and employees of the Depart- 15 ment of Homeland Security— 16 (1) to confirm, before issuing a detainer— 17 (A) the alienage of the individual to be 18 made subject to such detainer through lawfully 19 obtained information, including— 20 (i) the name of the individual; 21 (ii) the date of birth of the individual; 22 or 23 (iii) the fingerprints of the individual; 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00431 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 432 •S 1258 IS (B) whether the individual is removable 1 from the United States; and 2 (C) that the individual was not the victim 3 of a crime or a witness to a crime; and 4 (2) to provide notice to the individual being de- 5 tained, in the individual’s native language— 6 (A) that a detainer has been issued; and 7 (B) the procedure for challenging the de- 8 tainer. 9 SEC. 245. REFORM OF PASSPORT, VISA, AND IMMIGRATION 10 FRAUD OFFENSES. 11 (a) TRAFFICKING IN PASSPORTS.—Section 1541 of 12 title 18, United States Code, is amended to read as fol- 13 lows: 14 ‘‘§ 1541. Trafficking in passports 15 ‘‘(a) MULTIPLE PASSPORTS.—Any person who, dur- 16 ing any period of 3 years or less, knowingly— 17 ‘‘(1) and without lawful authority produces, 18 issues, or transfers 10 or more passports; 19 ‘‘(2) forges, counterfeits, alters, or falsely 20 makes 10 or more passports; 21 ‘‘(3) secures, possesses, uses, receives, buys, 22 sells, or distributes 10 or more passports, knowing 23 the passports to be forged, counterfeited, altered, 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00432 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 433 •S 1258 IS falsely made, stolen, procured by fraud, or produced 1 or issued without lawful authority; or 2 ‘‘(4) completes, mails, prepares, presents, signs, 3 or submits 10 or more applications for a United 4 States passport, knowing the applications to contain 5 any false statement or representation, 6 shall be fined under this title, imprisoned not more than 7 20 years, or both. 8 ‘‘(b) PASSPORT MATERIALS.—Any person who know- 9 ingly and without lawful authority produces, buys, sells, 10 possesses, or uses any official material (or counterfeit of 11 any official material) used to make a passport, including 12 any distinctive paper, seal, hologram, image, text, symbol, 13 stamp, engraving, or plate, shall be fined under this title, 14 imprisoned not more than 20 years, or both.’’. 15 (b) FALSE STATEMENT IN AN APPLICATION FOR A 16 PASSPORT.—Section 1542 of title 18, United States Code, 17 is amended to read as follows: 18 ‘‘§ 1542. False statement in an application for a pass- 19 port 20 ‘‘(a) IN GENERAL.—Any person who knowingly— 21 ‘‘(1) makes any false statement or representa- 22 tion in an application for a United States passport; 23 or 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00433 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 434 •S 1258 IS ‘‘(2) mails, prepares, presents, or signs an ap- 1 plication for a United States passport knowing the 2 application to contain any false statement or rep- 3 resentation, 4 shall be fined under this title, imprisoned not more than 5 15 years, or both. 6 ‘‘(b) VENUE.— 7 ‘‘(1) IN GENERAL.—An offense under sub- 8 section (a) may be prosecuted in any district— 9 ‘‘(A) in which the false statement or rep- 10 resentation was made or the application for a 11 United States passport was prepared or signed; 12 or 13 ‘‘(B) in which or to which the application 14 was mailed or presented. 15 ‘‘(2) ACTS OCCURRING OUTSIDE THE UNITED 16 STATES.—An offense under subsection (a) involving 17 an application for a United States passport prepared 18 and adjudicated outside the United States may be 19 prosecuted in the district in which the resultant 20 passport was or would have been produced. 21 ‘‘(c) SAVINGS CLAUSE.—Nothing in this section may 22 be construed to limit the venue otherwise available under 23 sections 3237 and 3238.’’. 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00434 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 435 •S 1258 IS (c) FORGERY AND UNLAWFUL PRODUCTION OF A 1 PASSPORT.—Section 1543 of title 18, United States Code, 2 is amended to read as follows: 3 ‘‘§ 1543. Forgery and unlawful production of a pass- 4 port 5 ‘‘(a) FORGERY.—Any person who knowingly— 6 ‘‘(1) forges, counterfeits, alters, or falsely 7 makes any passport; or 8 ‘‘(2) transfers any passport knowing it to be 9 forged, counterfeited, altered, falsely made, stolen, 10 or to have been produced or issued without lawful 11 authority, 12 shall be fined under this title, imprisoned not more than 13 15 years, or both. 14 ‘‘(b) UNLAWFUL PRODUCTION.—Any person who 15 knowingly and without lawful authority— 16 ‘‘(1) produces, issues, authorizes, or verifies a 17 passport in violation of the laws, regulations, or 18 rules governing the issuance of the passport; 19 ‘‘(2) produces, issues, authorizes, or verifies a 20 United States passport for or to any person knowing 21 or in reckless disregard of the fact that such person 22 is not entitled to receive a passport; or 23 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00435 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 436 •S 1258 IS ‘‘(3) transfers or furnishes a passport to any 1 person for use by any person other than the person 2 for whom the passport was issued or designed, 3 shall be fined under this title, imprisoned not more than 4 15 years, or both.’’. 5 (d) MISUSE OF A PASSPORT.—Section 1544 of title 6 18, United States Code, is amended to read as follows: 7 ‘‘§ 1544. Misuse of a passport 8 ‘‘Any person who knowingly— 9 ‘‘(1) uses any passport issued or designed for 10 the use of another person; 11 ‘‘(2) uses any passport in violation of the condi- 12 tions or restrictions contained in the passport, or in 13 violation of the laws, regulations, or rules governing 14 the issuance and use of the passport; 15 ‘‘(3) secures, possesses, uses, receives, buys, 16 sells, or distributes any passport knowing it to be 17 forged, counterfeited, altered, falsely made, procured 18 by fraud, or produced or issued without lawful au- 19 thority; or 20 ‘‘(4) violates the terms and conditions of any 21 safe conduct duly obtained and issued under the au- 22 thority of the United States, 23 shall be fined under this title, imprisoned not more than 24 15 years, or both.’’. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00436 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 437 •S 1258 IS (e) SCHEMES TO DEFRAUD ALIENS.—Section 1545 1 of title 18, United States Code, is amended to read as 2 follows: 3 ‘‘§ 1545. Schemes To defraud aliens 4 ‘‘(a) IN GENERAL.—Any person who knowingly exe- 5 cutes a scheme or artifice, in connection with any matter 6 that is authorized by or arises under any Federal immigra- 7 tion law or any matter the offender claims or represents 8 is authorized by or arises under any Federal immigration 9 law, to— 10 ‘‘(1) defraud any person; or 11 ‘‘(2) obtain or receive money or anything else of 12 value from any person by means of false or fraudu- 13 lent pretenses, representations, or promises, 14 shall be fined under this title, imprisoned not more than 15 15 years, or both. 16 ‘‘(b) MISREPRESENTATION.—Any person who know- 17 ingly and falsely represents that such person is an attor- 18 ney or an accredited representative (as that term is de- 19 fined in section 1292.1 of title 8, Code of Federal Regula- 20 tions (or any successor regulation)) in any matter arising 21 under any Federal immigration law shall be fined under 22 this title, imprisoned not more than 15 years, or both.’’. 23 (f) IMMIGRATION AND VISA FRAUD.—Section 1546 24 of title 18, United States Code, is amended— 25 VerDate Mar 15 2010 06:32 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00437 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 438 •S 1258 IS (1) by amending the section heading to read as 1 follows: 2 ‘‘§ 1546. Immigration and visa fraud’’; 3 (2) by striking subsections (b) and (c) and in- 4 serting the following: 5 ‘‘(b) TRAFFICKING.—Any person who, during any pe- 6 riod of 3 years or less, knowingly— 7 ‘‘(1) and without lawful authority produces, 8 issues, or transfers 10 or more immigration docu- 9 ments; 10 ‘‘(2) forges, counterfeits, alters, or falsely 11 makes 10 or more immigration documents; 12 ‘‘(3) secures, possesses, uses, buys, sells, or dis- 13 tributes 10 or more immigration documents, know- 14 ing the immigration documents to be forged, coun- 15 terfeited, altered, stolen, falsely made, procured by 16 fraud, or produced or issued without lawful author- 17 ity; or 18 ‘‘(4) completes, mails, prepares, presents, signs, 19 or submits 10 or more immigration documents 20 knowing the documents to contain any materially 21 false statement or representation, 22 shall be fined under this title, imprisoned not more than 23 20 years, or both. 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00438 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 439 •S 1258 IS ‘‘(c) IMMIGRATION DOCUMENT MATERIALS.—Any 1 person who knowingly and without lawful authority pro- 2 duces, buys, sells, possesses, or uses any official material 3 (or counterfeit of any official material) used to make im- 4 migration documents, including any distinctive paper, seal, 5 hologram, image, text, symbol, stamp, engraving, or plate, 6 shall be fined under this title, imprisoned not more than 7 20 years, or both. 8 ‘‘(d) EMPLOYMENT DOCUMENTS.—Any person who 9 uses— 10 ‘‘(1) an identification document, knowing or 11 having reason to know that the document is false or 12 was not issued lawfully for the use of the possessor; 13 or 14 ‘‘(2) a false attestation, for the purpose of sat- 15 isfying a requirement under section 274A(b) of the 16 Immigration and Nationality Act (8 U.S.C. 17 1324a(b)), shall be fined under this title, imprisoned 18 not more than 1 year, or both.’’. 19 (g) ALTERNATIVE IMPRISONMENT MAXIMUM FOR 20 CERTAIN OFFENSES.—Section 1547 of title 18, United 21 States Code, is amended— 22 (1) in the matter preceding paragraph (1), by 23 striking ‘‘(other than an offense under section 24 1545)’’; 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00439 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 440 •S 1258 IS (2) in paragraph (1), by striking ‘‘15’’ and in- 1 serting ‘‘20’’; and 2 (3) in paragraph (2), by striking ‘‘20’’ and in- 3 serting ‘‘25’’. 4 (h) ATTEMPTS, CONSPIRACIES, JURISDICTION, AND 5 DEFINITIONS.—Chapter 75 of title 18, United States 6 Code, is amended by adding after section 1547 the fol- 7 lowing: 8 ‘‘§ 1548. Attempts and conspiracies 9 ‘‘Any person who attempts or conspires to violate any 10 section of this chapter shall be punished in the same man- 11 ner as a person who completed a violation of such section. 12 ‘‘§ 1549. Additional jurisdiction 13 ‘‘(a) IN GENERAL.—Any person who commits an of- 14 fense under this chapter within the special maritime and 15 territorial jurisdiction of the United States shall be pun- 16 ished as provided under this chapter. 17 ‘‘(b) EXTRATERRITORIAL JURISDICTION.—Any per- 18 son who commits an offense under this chapter outside 19 the United States shall be punished as provided under this 20 chapter if— 21 ‘‘(1) the offense involves a United States pass- 22 port or immigration document (or any document 23 purporting to be such a document) or any matter, 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00440 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 441 •S 1258 IS right, or benefit arising under or authorized by any 1 Federal immigration law; 2 ‘‘(2) the offense is in or affects foreign com- 3 merce; 4 ‘‘(3) the offense affects, jeopardizes, or poses a 5 significant risk to the lawful administration of Fed- 6 eral immigration laws, or the national security of the 7 United States; 8 ‘‘(4) the offense is committed to facilitate an 9 act of international terrorism (as defined in section 10 2331) or a drug trafficking crime (as defined in sec- 11 tion 929(a)(2)) that affects or would affect the na- 12 tional security of the United States; 13 ‘‘(5) the offender is a national of the United 14 States or an alien lawfully admitted for permanent 15 residence (as those terms are defined in section 16 101(a) of the Immigration and Nationality Act (8 17 U.S.C. 1101(a))); or 18 ‘‘(6) the offender is a stateless person whose 19 habitual residence is in the United States. 20 ‘‘§ 1550. Authorized law enforcement activities 21 ‘‘Nothing in this chapter may be construed to pro- 22 hibit— 23 ‘‘(1) any lawfully authorized investigative, pro- 24 tective, or intelligence activity of a law enforcement 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00441 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 442 •S 1258 IS agency of the United States, a State, or a political 1 subdivision of a State, or an intelligence agency of 2 the United States; or 3 ‘‘(2) any activity authorized under title V of the 4 Organized Crime Control Act of 1970 (Public Law 5 91–452; 84 Stat. 933).’’. 6 (i) CLERICAL AMENDMENT.—The table of sections 7 for chapter 75 of title 18, United States Code, is amended 8 to read as follows: 9 ‘‘Sec. ‘‘1541. Trafficking in passports. ‘‘1542. False statement in an application for a passport. ‘‘1543. Forgery and unlawful production of a passport. ‘‘1544. Misuse of a passport. ‘‘1545. Schemes to defraud aliens. ‘‘1546. Immigration and visa fraud. ‘‘1547. Alternative imprisonment maximum for certain offenses. ‘‘1548. Attempts and conspiracies. ‘‘1549. Additional jurisdiction. ‘‘1550. Authorized law enforcement activities.’’. (j) UNIFORM STATUTE OF LIMITATIONS FOR CER- 10 TAIN IMMIGRATION, NATURALIZATION, AND PEONAGE 11 OFFENSES.— 12 (1) IN GENERAL.—Section 3291 of title 18, 13 United States Code, is amended to read as follows: 14 ‘‘§ 3291. Immigration, naturalization, and peonage of- 15 fenses 16 ‘‘A person may not be prosecuted, tried, or punished 17 for any violation under chapter 69 (relating to nationality 18 and citizenship offenses), 75 (relating to passport, visa, 19 and immigration offenses), or 77 (relating to peonage, 20 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00442 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 443 •S 1258 IS slavery, and trafficking in persons), for an attempt or con- 1 spiracy to commit such a violation, for a violation of any 2 criminal provision under section 243, 266, 274, 275, 276, 3 277, or 278 of the Immigration and Nationality Act (8 4 U.S.C. 1253, 1306, 1324, 1325, 1326, 1327, and 1328), 5 or for an attempt or conspiracy to commit any such viola- 6 tion, unless the indictment is returned or the information 7 filed not later than 10 years after the commission of the 8 offense.’’. 9 (2) CLERICAL AMENDMENT.—The table of sec- 10 tions for chapter 213 of title 18, United States 11 Code, is amended by striking the item relating to 12 section 3291 and inserting the following: 13 ‘‘3291. Immigration, naturalization, and peonage offenses.’’. SEC. 246. DIRECTIVES RELATED TO PASSPORT AND DOCU- 14 MENT FRAUD. 15 (a) DIRECTIVE TO THE UNITED STATES SEN- 16 TENCING COMMISSION.— 17 (1) IN GENERAL.—Pursuant to the authority 18 under section 994 of title 28, United States Code, 19 the United States Sentencing Commission shall pro- 20 mulgate or amend the sentencing guidelines, policy 21 statements, and official commentaries related to 22 passport fraud offenses, including the offenses de- 23 scribed in chapter 75 of title 18, United States 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00443 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 444 •S 1258 IS Code, as amended by section 245, to reflect the seri- 1 ous nature of such offenses. 2 (2) REPORT.—Not later than 1 year after the 3 date of the enactment of this Act, the United States 4 Sentencing Commission shall submit a report on the 5 implementation of this subsection to— 6 (A) the Committee on the Judiciary of the 7 Senate; and 8 (B) the Committee on the Judiciary of the 9 House of Representatives. 10 (b) PROTECTION FOR LEGITIMATE REFUGEES AND 11 ASYLUM SEEKERS.— 12 (1) IN GENERAL.— 13 (A) REQUIREMENT FOR GUIDELINES.— 14 The Attorney General, in consultation with the 15 Secretary, shall develop binding prosecution 16 guidelines for Federal prosecutors to ensure 17 that each prosecution of an alien seeking entry 18 into the United States by fraud is consistent 19 with the United States treaty obligations under 20 Article 31(1) of the Convention Relating to the 21 Status of Refugees, done at Geneva July 28, 22 1951 (as made applicable by the Protocol Relat- 23 ing to the Status of Refugees, done at New 24 York January 31, 1967 (19 UST 6223)). 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00444 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 445 •S 1258 IS (B) NO PRIVATE RIGHT OF ACTION.—The 1 guidelines developed pursuant to subparagraph 2 (A), and any internal office procedures related 3 to such guidelines— 4 (i) are intended solely for the guid- 5 ance of attorneys of the United States; and 6 (ii) are not intended to, do not, and 7 may not be relied upon to, create any right 8 or benefit, substantive or procedural, en- 9 forceable at law by any party in any ad- 10 ministrative, civil, or criminal matter. 11 (2) PROTECTION OF VULNERABLE PERSONS.— 12 A person described in paragraph (3) may not be 13 prosecuted under chapter 75 of title 18, United 14 States Code, or under section 275 or 276 of the Im- 15 migration and Nationality Act (8 U.S.C. 1325 and 16 1326), in connection with the person’s entry or at- 17 tempted entry into the United States until after the 18 date on which the person’s application for such pro- 19 tection, classification, or status has been adjudicated 20 and denied in accordance with the Immigration and 21 Nationality Act (8 U.S.C. 1101 et seq.). 22 (3) PERSONS SEEKING PROTECTION, CLASSI- 23 FICATION, OR STATUS.—A person described in this 24 paragraph is a person who— 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00445 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 446 •S 1258 IS (A) is seeking protection, classification, or 1 status; and 2 (B)(i) has filed an application for asylum 3 under section 208 of the Immigration and Na- 4 tionality Act (8 U.S.C. 1158), withholding of 5 removal under section 241(b)(3) of such Act (8 6 U.S.C. 1231), or relief under the Convention 7 against Torture and Other Cruel, Inhuman or 8 Degrading Treatment or Punishment, done at 9 New York, December 10, 1994, pursuant to 10 title 8, Code of Federal Regulations; 11 (ii) indicates immediately after apprehen- 12 sion, that he or she intends to apply for such 13 asylum, withholding of removal, or relief and 14 promptly files the appropriate application; 15 (iii) has been referred for a credible fear 16 interview, a reasonable fear interview, or an 17 asylum-only hearing under section 235 of the 18 Immigration and Nationality Act (8 U.S.C. 19 1225) or title 8, Code of Federal Regulations; 20 or 21 (iv) has filed an application for classifica- 22 tion or status under— 23 (I) paragraph (15)(T), (15) (U), 24 (27)(J), or (51) of section 101(a) of the 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00446 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 447 •S 1258 IS Immigration and Nationality Act (8 U.S.C. 1 1101(a)); or 2 (II) section 216(c)(4)(C), 240A(b)(2), 3 or 244(a)(3) of such Act (8 U.S.C. 4 1186a(c)(4)(C), 1229b(b)(2), and 5 1254a(a)(3)). 6 SEC. 247. EXPANDING THE DEFINITION OF CONVEYANCES 7 SUBJECT TO FORFEITURE. 8 (a) IN GENERAL.—Section 1703 of title 19, United 9 States Code, is amended— 10 (1) by amending the section heading to read as 11 follows: 12 ‘‘§ 1703. Seizure and forfeiture of vessels, vehicles, 13 other conveyances, and instruments of 14 international traffic’’; 15 (2) in subsection (a), by amending the sub- 16 section heading to read as follows: 17 ‘‘(a) VESSELS, VEHICLES, OTHER CONVEYANCES, 18 AND INSTRUMENTS OF INTERNATIONAL TRAFFIC SUB- 19 JECT TO SEIZURE AND FORFEITURE.—’’; 20 (3) in subsection (b), by amending the sub- 21 section heading to read as follows: 22 ‘‘(b) VESSELS, VEHICLES, OTHER CONVEYANCES, 23 AND INSTRUMENTS OF INTERNATIONAL TRAFFIC DE- 24 FINED.—’’; 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00447 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 448 •S 1258 IS (4) in subsections (a) and (b), by inserting ‘‘, 1 vehicle, other conveyance, or instrument of inter- 2 national traffic’’ after ‘‘vessel’’ each place such term 3 appears; and 4 (5) by amending subsection (c) to read as fol- 5 lows: 6 ‘‘(c) ACTS CONSTITUTING PRIMA FACIE EVIDENCE 7 OF SMUGGLING.—For purposes of this section, prima 8 facie evidence that a conveyance is being, has been, or is 9 attempting to be employed in smuggling or to defraud the 10 revenue of the United States shall be— 11 ‘‘(1) in the case of a vessel, the vessel— 12 ‘‘(A) has become subject to pursuit, as de- 13 scribed in section 1581; 14 ‘‘(B) is a hovering vessel; or 15 ‘‘(C) fails, at any place within the customs 16 waters of the United States or within a cus- 17 toms-enforcement area, to display lights as re- 18 quired by law; 19 ‘‘(2) in the case of a vehicle, other conveyance, 20 or instrument of international traffic, the vehicle, 21 other conveyance, or instrument of international 22 traffic has any compartment or equipment that is 23 built or fitted out for smuggling.’’. 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00448 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 449 •S 1258 IS (b) CLERICAL AMENDMENT.—The table of sections 1 for chapter 5 of title 19, United States Code, is amended 2 by striking the item relating to section 1703 and inserting 3 the following: 4 ‘‘1703. Seizure and forfeiture of vessels, vehicles, other conveyances, or instru- ments of international traffic.’’. SEC. 248. CRIMINAL FORFEITURE. 5 Section 982(a) of title 18, United States Code, is 6 amended— 7 (1) in paragraph (2)(B), by inserting ‘‘1028A’’ 8 between ‘‘1028’’ and ‘‘1029;’’ 9 (2) in paragraph (6)(A)— 10 (A) by striking ‘‘ or 274A(a)(2)’’ and in- 11 serting ‘‘274A(a)(2) or 274A(i)’’; and 12 (B) by inserting ‘‘and 1028A’’ after 13 ‘‘1028’’ and 14 (3) in paragraph (8), by inserting ‘‘and 1028A’’ 15 after ‘‘1028’’. 16 SEC. 249. ADVANCE DELIVERY OF INFORMATION INCLUD- 17 ING PASSENGER MANIFESTS. 18 (a) IN GENERAL.—Section 231 (8 U.S.C. 1221) is 19 amended— 20 (1) by striking ‘‘commercial vessel or aircraft’’ 21 each place it appears and inserting ‘‘commercial ves- 22 sel, commercial vehicle, or aircraft’’; 23 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00449 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 450 •S 1258 IS (2) in subsection (a), by striking ‘‘such vessel 1 or aircraft’’ and inserting ‘‘such vessel, vehicle, or 2 aircraft’’; 3 (3) in subsection (g), by striking ‘‘$1,000’’ and 4 inserting ‘‘$5,000’’; 5 (4) in subsection (j), by striking ‘‘The Attorney 6 General’’ and inserting the following: 7 ‘‘(j) INFORMATION TO BE RECORDED.—The Sec- 8 retary of Homeland Security’’; and 9 (5) by inserting at the end the following: 10 ‘‘(k) SHARING OF MANIFEST AND PASSENGER NAME 11 RECORD INFORMATION WITH OTHER GOVERNMENT 12 AGENCIES.—The Secretary of Homeland Security may 13 provide information contained in passenger and crew 14 manifests and passenger name record information received 15 under this section to other Federal, State, tribal, local, 16 and foreign government authorities in order to protect the 17 national security of the United States or as otherwise au- 18 thorized by law. 19 ‘‘(l) SAVINGS PROVISION.—Nothing in this section 20 may be construed to abrogate, diminish, or weaken the 21 provisions of any Federal law that prevents or protects 22 against unauthorized collection or release of personal 23 records.’’. 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00450 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 451 •S 1258 IS (b) ASSESSMENTS.—Not later than 1 year after the 1 date of the enactment of this Act, the Secretary shall as- 2 sess the privacy and civil liberties impacts of the amend- 3 ments made by subsection (a). 4 SEC. 250. UNLAWFUL FLIGHT FROM IMMIGRATION OR CUS- 5 TOMS CONTROLS AND DISOBEYANCE OF LAW- 6 FUL ORDERS. 7 Section 758 of title 18, United States Code, is 8 amended to read as follows: 9 ‘‘§ 758. Unlawful flight from Federal checkpoints and 10 disobeyance of lawful orders 11 ‘‘(a) EVADING A CHECKPOINT.—Any person who, 12 while operating a motor vehicle or vessel— 13 ‘‘(1) knowingly flees or evades a checkpoint op- 14 erated by the Department of Homeland Security or 15 any other Federal law enforcement agency; and 16 ‘‘(2) knowingly or recklessly disregards or dis- 17 obeys the lawful command of a Federal law enforce- 18 ment officer engaged in the enforcement of Federal 19 law, or the lawful command of any law enforcement 20 officer assisting such Federal officer, 21 shall be fined under this title, imprisoned not more than 22 5 years, or both. 23 ‘‘(b) FAILURE TO STOP.—Any person who, while op- 24 erating a motor vehicle, aircraft, or vessel, knowingly or 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00451 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 452 •S 1258 IS recklessly disregards or disobeys the lawful command of 1 a Federal law enforcement officer engaged in the enforce- 2 ment of Federal law, or the lawful command of any law 3 enforcement officer assisting such Federal officer, shall be 4 fined under this title, imprisoned not more than 2 years, 5 or both.’’. 6 SEC. 251. REDUCING ILLEGAL IMMIGRATION AND ALIEN 7 SMUGGLING ON TRIBAL LANDS. 8 (a) GRANTS AUTHORIZED.—The Secretary may 9 award grants to any Indian tribe that— 10 (1) owns land that is adjacent to an inter- 11 national border of the United States; and 12 (2) has been adversely affected by illegal immi- 13 gration. 14 (b) USE OF FUNDS.—Grants awarded under sub- 15 section (a) may be used for— 16 (1) law enforcement activities; 17 (2) health care services; 18 (3) environmental restoration; and 19 (4) the preservation of cultural resources. 20 (c) REPORT.—Not later than 180 days after the date 21 of the enactment of this Act, the Secretary shall submit 22 a report to the Committee on the Judiciary of the Senate 23 and the Committee on the Judiciary of the House of Rep- 24 resentatives that— 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00452 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 453 •S 1258 IS (1) describes the level of access that Border Pa- 1 trol agents have on tribal lands; 2 (2) describes the extent to which the enforce- 3 ment of Federal immigration laws and rescue oper- 4 ations by Border Patrol officers may be improved by 5 enhanced access to tribal lands; 6 (3) contains a strategy for improving access to 7 tribal lands through increased cooperation with trib- 8 al authorities; and 9 (4) identifies grants provided by the Depart- 10 ment to Indian tribes, either directly or through 11 grants provided to State or local governments, for 12 border security expenses. 13 (d) AUTHORIZATION OF APPROPRIATIONS.—There 14 are authorized to be appropriated such sums as may be 15 necessary for each of the fiscal years 2012 through 2016 16 to carry out this section. 17 SEC. 252. DIPLOMATIC SECURITY SERVICE. 18 (a) Section 37(a)(1) of the State Department Basic 19 Authorities Act of 1956 (22 U.S.C. 2709(a)(1)) is amend- 20 ed to read as follows: 21 ‘‘(1) conduct investigations concerning— 22 ‘‘(A) illegal passport or visa issuance or 23 use; 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00453 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 454 •S 1258 IS ‘‘(B) identity theft or document fraud af- 1 fecting or relating to the programs, functions, 2 or authorities of the Department of State; 3 ‘‘(C) violations of chapter 77 of title 18, 4 United States Code; and 5 ‘‘(D) Federal offenses committed within 6 the special maritime and territorial jurisdiction 7 defined in section 7(9) of title 18, United 8 States Code, except as that jurisdiction relates 9 to the premises of United States military mis- 10 sions and related residences;’’. 11 (b) RULE OF CONSTRUCTION.—Nothing in this sec- 12 tion may be construed to limit the investigative authority 13 of any Federal department or agency. 14 SEC. 253. INCREASED PENALTIES BARRING THE ADMIS- 15 SION OF CONVICTED SEX OFFENDERS FAIL- 16 ING TO REGISTER AND REQUIRING DEPORTA- 17 TION OF SEX OFFENDERS FAILING TO REG- 18 ISTER. 19 (a) INADMISSIBILITY.—Section 212(a)(2)(A)(i) (8 20 U.S.C. 1182(a)(2)(A)(i)) is amended— 21 (1) in subclause (I), by striking ‘‘or’’ at the 22 end; 23 (2) in subclause (II), by striking the comma at 24 the end and inserting a semicolon; and 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00454 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 455 •S 1258 IS (3) by inserting after subclause (II) the fol- 1 lowing: 2 ‘‘(III) a conviction under section 3 2250 of title 18, United States Code 4 (relating to failure to register as a sex 5 offender),’’. 6 (b) DEPORTABILITY.—Section 237(a)(2)(A)(i) (8 7 U.S.C. 1227(a)(2)(A)(i)) is amended— 8 (1) in subclause (I), by striking ‘‘, and’’ and in- 9 serting a semicolon; 10 (2) in subclause (II), by striking the comma at 11 the end and inserting ‘‘; or’’; and 12 (3) by inserting after subclause (II) the fol- 13 lowing: 14 ‘‘(III) a conviction under section 15 2250 of title 18, United States Code 16 (relating to failure to register as a sex 17 offender),’’. 18 SEC. 254. AGGRAVATED FELONY. 19 (a) DEFINITION OF AGGRAVATED FELONY.—Section 20 101(a)(43) (8 U.S.C. 1101(a)(43)) is amended— 21 (1) in the matter preceding subparagraph (A), 22 by striking ‘‘The term ‘aggravated felony’ means— 23 ’’ and inserting ‘‘Notwithstanding any other provi- 24 sion of law, the term ‘aggravated felony’ applies to 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00455 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 456 •S 1258 IS any offense which is a felony described in this para- 1 graph, whether in violation of Federal or State law, 2 for which the individual served at least 1 year of im- 3 prisonment and to such a felony offense in violation 4 of the law of a foreign country, for which the term 5 of imprisonment was completed during the previous 6 15 years, regardless of whether the conviction was 7 entered before, on, or after September 30, 1996, and 8 means—’’; 9 (2) in subparagraph (N), by striking ‘‘para- 10 graph (1)(A) or (2) of’’ and inserting ‘‘paragraph 11 (1)(A), (2), or (4) of’’; and 12 (3) by striking the undesignated matter fol- 13 lowing subparagraph (U). 14 (b) EFFECTIVE DATE AND APPLICATION.— 15 (1) IN GENERAL.—The amendments made by 16 subsection (a) shall— 17 (A) take effect on the date of the enact- 18 ment of this Act; and 19 (B) apply to any act that occurred on or 20 after such date. 21 (2) APPLICATION OF AMENDMENTS.—The 22 amendments to section 101(a)(43) of the Immigra- 23 tion and Nationality Act made by section 321 of the 24 Illegal Immigration Reform and Immigrant Respon- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00456 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 457 •S 1258 IS sibility Act of 1996 (division C of Public Law 104– 1 208; 110 Stat. 3009–627) shall continue to apply to 2 actions taken on or after September 30, 1996, re- 3 gardless of when the conviction for such actions oc- 4 curred. 5 SEC. 255. INCREASED CRIMINAL PENALTIES RELATED TO 6 GANG VIOLENCE. 7 (a) CRIMINAL STREET GANGS.— 8 (1) INADMISSIBILITY.—Section 212(a)(2) (8 9 U.S.C. 1182(a)(2)) is amended by adding at the end 10 the following: 11 ‘‘(J) MEMBERS OF CRIMINAL STREET 12 GANGS.—Unless the Secretary of Homeland Se- 13 curity or the Attorney General waives the appli- 14 cation of this subparagraph, any alien who has 15 been convicted of a crime under section 521 of 16 title 18, United States Code, is inadmissible.’’. 17 (2) DEPORTABILITY.—Section 237(a)(2) (8 18 U.S.C. 1227(a)(2)) is amended by adding at the end 19 the following: 20 ‘‘(F) MEMBERS OF CRIMINAL STREET 21 GANGS.—Unless the Secretary of Homeland Se- 22 curity or the Attorney General waives the appli- 23 cation of this subparagraph, any alien who has 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00457 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 458 •S 1258 IS been convicted of a crime under section 521 of 1 title 18, United States Code, is deportable.’’. 2 (3) TEMPORARY PROTECTED STATUS.—Section 3 244 (8 U.S.C. 1254a) is amended— 4 (A) by striking ‘‘Attorney General’’ each 5 place it appears and inserting ‘‘Secretary of 6 Homeland Security’’; 7 (B) in subsection (c)(2)(B)— 8 (i) in clause (i), by striking ‘‘, or’’ at 9 the end and inserting a semicolon; 10 (ii) in clause (ii), by striking the pe- 11 riod at the end and inserting ‘‘; or’’; and 12 (iii) by adding at the end the fol- 13 lowing: 14 ‘‘(iii) the alien has been convicted of 15 a crime under section 521 of title 18, 16 United States Code.’’. 17 (C) in subsection (d)— 18 (i) by striking paragraph (3); 19 (ii) by redesignating paragraph (4) as 20 paragraph (3); and 21 (iii) in paragraph (3), as redesignated, 22 by adding at the end the following: ‘‘The 23 Secretary of Homeland Security shall de- 24 tain an alien provided temporary protected 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00458 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 459 •S 1258 IS status under this section if the alien has 1 been found by an immigration judge to be 2 subject to detention under section 3 236(c)(1).’’. 4 (b) PENALTIES RELATED TO REMOVAL.—Section 5 243 (8 U.S.C. 1253) is amended— 6 (1) in subsection (a)(1), in the matter following 7 subparagraph (D)— 8 (A) by striking ‘‘or imprisoned not more 9 than four years’’ and inserting ‘‘and imprisoned 10 for not more than 5 years’’; and 11 (B) by striking ‘‘, or both’’; and 12 (2) in subsection (b), by striking ‘‘not more 13 than $1,000 or imprisoned for not more than 1 year, 14 or both’’ and inserting ‘‘under title 18, United 15 States Code, and imprisoned for not more than 3 16 years (or for not more than 10 years if the alien is 17 removable under paragraph (1)(E), (2), or (4) of 18 section 237(a)).’’. 19 PART II—DETENTION REFORM 20 SEC. 261. DEFINITIONS. 21 In this part: 22 (1) APPREHENSION.—The term ‘‘apprehension’’ 23 means the detention, arrest, or custody, or any sig- 24 nificant deprivation of an individual’s freedom of ac- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00459 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 460 •S 1258 IS tion by government officials or entities acting under 1 agreement with the Department for suspicion of vio- 2 lations under the Immigration and Nationality Act 3 (8 U.S.C. 1101 et seq.). 4 (2) CHILD.—The term ‘‘child’’ has the meaning 5 given to the term in section 101(b)(1) of the Immi- 6 gration and Nationality Act (8 U.S.C. 1101(b)(1)). 7 (3) CHILD WELFARE AGENCY.—The term 8 ‘‘child welfare agency’’ means the State or local 9 agency responsible for child welfare services under 10 subtitles B and E of title IV of the Social Security 11 Act (42 U.S.C. 601 et seq.). 12 (4) COOPERATING ENTITY.—The term ‘‘cooper- 13 ating entity’’ means a State or local entity acting 14 under agreement with, or at the request of, the De- 15 partment. 16 (5) DETAINEE.—The term ‘‘detainee’’ means 17 an individual who is subject to detention under the 18 Immigration and Nationality Act. 19 (6) DETENTION.—The term ‘‘detention’’ means 20 government custody or any other deprivation of an 21 individual’s freedom of movement by government 22 agents. 23 (7) DETENTION FACILITY.—The term ‘‘deten- 24 tion facility’’ means a Federal, State, or local gov- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00460 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 461 •S 1258 IS ernment facility, or a privately owned and operated 1 facility, that is used to hold individuals suspected or 2 found to be in violation of the Immigration and Na- 3 tionality Act (8 U.S.C. 1101 et seq.) for more than 4 72 hours. 5 (8) FAMILIES WITH CHILDREN.—The term 6 ‘‘family with children’’ means any parent or legal 7 guardian who is apprehended with 1 or more of their 8 children. 9 (9) GROUP LEGAL ORIENTATION PRESEN- 10 TATIONS.—The term ‘‘group legal orientation pres- 11 entations’’ means live group presentations, supple- 12 mented by individual orientations, pro se workshops, 13 and pro bono referrals, that— 14 (A) are carried out by private nongovern- 15 mental organizations; 16 (B) are presented to detainees; 17 (C) inform detainees about Federal immi- 18 gration law and procedures; and 19 (D) enable detainees to determine their eli- 20 gibility for relief. 21 (10) IMMIGRATION ENFORCEMENT ACTION.— 22 The term ‘‘immigration enforcement action’’ means 23 the apprehension of, detention of, or request for or 24 issuance of a detainer for, 1 or more individuals for 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00461 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 462 •S 1258 IS suspected or confirmed violations of the Immigration 1 and Nationality Act (8 U.S.C. 1101 et seq.) by the 2 Department or cooperating entities. 3 (11) LOCAL EDUCATION AGENCY.—The term 4 ‘‘local education agency’’ has the meaning given to 5 the term in section 9101 of the Elementary and Sec- 6 ondary Education Act of 1965 (20 U.S.C. 7801). 7 (12) NGO.—The term ‘‘NGO’’ means a non- 8 governmental organization that provides social serv- 9 ices or humanitarian assistance to the immigrant 10 community. 11 (13) SECURE ALTERNATIVES.—The term ‘‘se- 12 cure alternatives’’ means custodial or noncustodial 13 programs under which aliens are screened and pro- 14 vided with appearance assistance services or placed 15 in supervision programs as needed to ensure they 16 appear at all immigration interviews, appointments 17 and hearings. 18 (14) SHORT-TERM DETENTION FACILITY.—The 19 term ‘‘detention facility’’ means a Federal, State, or 20 local government facility, or a privately owned and 21 operated facility, that is used to hold individuals sus- 22 pected or found to be in violation of the Immigration 23 and Nationality Act (8 U.S.C. 1101 et seq.) for 72 24 hours or less. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00462 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 463 •S 1258 IS (15) UNACCOMPANIED ALIEN CHILDREN.—The 1 term ‘‘unaccompanied alien children’’ has the mean- 2 ing given the term in section 462(g) of the Home- 3 land Security Act of 2002 (6 U.S.C. 279(g)). 4 SEC. 262. PROTECTIONS FOR VULNERABLE POPULATIONS. 5 (a) PROTECTION OF VULNERABLE POPULATIONS.— 6 (1) IN GENERAL.—Not later than 72 hours 7 after the commencement of an immigration-related 8 enforcement activity, the Department shall screen 9 each detainee to determine if the individual is a 10 member of a vulnerable population. 11 (2) ELIGIBILITY FOR RELEASE.—An individual 12 is a member of a vulnerable population and eligible 13 for release under subsection (b) if the Department 14 determines that he or she— 15 (A) has a nonfrivolous claim to United 16 States citizenship; 17 (B) has been deemed by a medically 18 trained professional to have medical or mental 19 health needs, or a disability; 20 (C) is pregnant or nursing; 21 (D) is being detained with 1 or more of his 22 or her children, or is 1 of such children; 23 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00463 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 464 •S 1258 IS (E) provides financial, physical, and other 1 direct support to his or her minor children, par- 2 ents, or other dependents; 3 (F) is older than 65 years of age; 4 (G) is a child (as defined in section 101(b) 5 of the Immigration and Nationality Act (8 6 U.S.C. 1101(b)); 7 (H) is a victim of abuse, violence, crime, or 8 human trafficking; 9 (I) is a lesbian, gay, bisexual, or 10 transgender individual; 11 (J) has been referred for a credible fear 12 interview, a reasonable fear interview, or an 13 asylum hearing, or is a stateless individual; 14 (K) has applied or intends to apply for 15 asylum, withholding of removal, or protection 16 under the Convention Against Torture and 17 Other Cruel, Inhuman or Degrading Treatment 18 or Punishment, done at New York December 19 10, 1984; 20 (L) is prima facie eligible for relief under 21 any provision of the Immigration and Nation- 22 ality Act (8 U.S.C. 1101 et seq.) including re- 23 turning lawful permanent residents; or 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00464 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 465 •S 1258 IS (M) is a member of any other group that 1 has been designated as a vulnerable population 2 in regulations or guidance promulgated by the 3 Secretary. 4 (b) OPTIONS REGARDING DETENTION DECISIONS 5 FOR VULNERABLE POPULATIONS.—Section 236 (8 U.S.C. 6 1226), as amended by this Act, is further amended— 7 (1) in subsection (a)— 8 (A) in the matter preceding paragraph (1) 9 by striking ‘‘(c)’’ and inserting ‘‘(g)’’; and 10 (B) in paragraph (2)— 11 (i) in subparagraph (A), by striking 12 ‘‘or’’ at the end; 13 (ii) in subparagraph (B), by striking 14 ‘‘but’’ at the end; and 15 (iii) by inserting after subparagraph 16 (B) the following: 17 ‘‘(C) the alien’s own recognizance;’’; and. 18 (C) by redesignating paragraph (3) as 19 paragraph (4); and 20 (D) by inserting after paragraph (2) the 21 following: 22 ‘‘(3) may enroll the alien in a secure alter- 23 natives program; and’’; and 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00465 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 466 •S 1258 IS (2) by redesignating subsections (b), (c), and 1 (d), as subsections (f), (g), and (h), respectively; 2 (3) by inserting after subsection (a) the fol- 3 lowing: 4 ‘‘(b) CUSTODY DECISIONS.— 5 ‘‘(1) CRITERIA TO BE CONSIDERED.—For any 6 alien who is not charged with inadmissibility or re- 7 movability under a ground specified in subsection (g) 8 or section 236A, the criteria that the Secretary of 9 Homeland Security or the Attorney General shall 10 use to demonstrate that detention is necessary are— 11 ‘‘(A) whether the alien poses a risk to pub- 12 lic safety, including a risk to national security; 13 and 14 ‘‘(B) whether alien poses a flight risk and 15 there are no conditions of release that will rea- 16 sonably ensure that the alien will appear for im- 17 migration proceedings, including bond or other 18 conditions that reduce the risk of flight. 19 ‘‘(2) EXCEPTION.—A decision to detain an 20 alien shall not be subject to the criteria under para- 21 graph (1) if the Secretary demonstrates, by a pre- 22 ponderance of the evidence, that the alien is de- 23 scribed in subsection (g)(1). 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00466 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 467 •S 1258 IS ‘‘(3) REVIEW.—Decisions by the Secretary or 1 the Attorney General under this section shall be sub- 2 ject to review. 3 ‘‘(c) CUSTODY DECISIONS FOR VULNERABLE POPU- 4 LATIONS.— 5 ‘‘(1) IN GENERAL.—Not later than 72 hours 6 after an individual is detained under this section 7 (unless the 72-hour requirement is waived in writing 8 by the individual), an individual who is a member of 9 a vulnerable population shall be released from the 10 custody of the Department of Homeland Security 11 and shall not be subject to electronic monitoring un- 12 less the Department demonstrates by a preponder- 13 ance of evidence that the individual— 14 ‘‘(A) is subject to mandatory detention 15 under subsection (g) or section 236A; 16 ‘‘(B) poses a risk to public safety, includ- 17 ing a risk to national security; or 18 ‘‘(C) is a flight risk and the risk cannot be 19 mitigated through other conditions of release, 20 such as bond or secure alternatives, which will 21 reasonably ensure the alien will appear for im- 22 migration proceedings. 23 ‘‘(2) RELEASE.—An individual shall be released 24 from custody under this subsection— 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00467 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 468 •S 1258 IS ‘‘(A) on the individual’s own recognizance; 1 ‘‘(B) by posting a minimum bond under 2 subsection (a)(2)(a); 3 ‘‘(C) on parole, in accordance with section 4 212(d)(5)(A); or 5 ‘‘(D) into a noncustodial secure alter- 6 natives program. 7 ‘‘(d) DECISION TO REMOVE OR RELEASE AN 8 ALIEN.— 9 ‘‘(1) IN GENERAL.—All decisions to detain an 10 individual under this Act— 11 ‘‘(A) shall be made in writing by the Sec- 12 retary of Homeland Security or the Attorney 13 General; 14 ‘‘(B) shall specify the reasons for such de- 15 cision if the decision is made to continue deten- 16 tion without bond, parole, release on recog- 17 nizance, or release into a noncustodial secure 18 alternatives program; and 19 ‘‘(C) shall be served upon the individual in 20 the language spoken by the individual— 21 ‘‘(i) not later than 72 hours after the 22 commencement of the alien’s detention; or 23 ‘‘(ii) in the case of an alien subject to 24 section 235 or 241(a)(5) who must estab- 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00468 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 469 •S 1258 IS lish a credible fear of persecution or tor- 1 ture, not later than 72 hours after a posi- 2 tive credible fear of persecution or reason- 3 able fear of persecution or torture deter- 4 mination. 5 ‘‘(2) REDETERMINATION.— 6 ‘‘(A) IN GENERAL.—Any alien detained by 7 the Department of Homeland Security under 8 this Act may, at any time after being served 9 with the Secretary’s decision under paragraph 10 (1), request a redetermination of that decision 11 by an immigration judge. 12 ‘‘(B) OTHER DECISIONS.—The Attorney 13 General may review and conduct custody rede- 14 terminations for any custody decision by the 15 Secretary. 16 ‘‘(C) SAVINGS PROVISION.—Nothing in 17 this subparagraph may be construed to prevent 18 an individual from requesting a bond redeter- 19 mination. 20 ‘‘(e) TIMELY NOTICE UPON APPREHENSION AND 21 SERVICE OF CHARGING DOCUMENTS.— 22 ‘‘(1) NOTICE.—The Secretary of Homeland Se- 23 curity, for each individual detained by the Depart- 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00469 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 470 •S 1258 IS ment of Homeland Security under this section, 1 shall— 2 ‘‘(A) file the notice to appear or other rel- 3 evant charging document with the closest immi- 4 gration court to where the individual was appre- 5 hended; and 6 ‘‘(B) serve such notice on the individual 7 not later than 48 hours after the commence- 8 ment of the individual’s detention. 9 ‘‘(2) CUSTODY DETERMINATION.—Any indi- 10 vidual who is detained under this section for more 11 than 48 hours shall be brought before an immigra- 12 tion judge for a custody determination not later than 13 72 hours after the commencement of such detention 14 unless the individual waives such right in accordance 15 with paragraph (3). 16 ‘‘(3) WAIVER.—The requirements under this 17 subsection may be waived for 7 days if the indi- 18 vidual— 19 ‘‘(A) enters into a written agreement with 20 the Department of Homeland Security to waive 21 such requirement; and 22 ‘‘(B) is eligible for immigration benefits or 23 demonstrates eligibility for a defense against re- 24 moval. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00470 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 471 •S 1258 IS ‘‘(4) APPLICABILITY OF OTHER LAW.—Nothing 1 in this section may be construed to repeal section 2 236A.’’; 3 (4) in subsection (g)(2), as redesignated, by in- 4 serting ‘‘or for humanitarian reasons,’’ after ‘‘such 5 an investigation,’’; and 6 SEC. 263. APPREHENSION PROCEDURES FOR IMMIGRATION 7 ENFORCEMENT-RELATED ACTIVITIES RELAT- 8 ING TO CHILDREN. 9 (a) NOTIFICATION.— 10 (1) ADVANCE NOTIFICATION.—Subject to para- 11 graph (2), when conducting any immigration en- 12 forcement action involving more than 10 individuals, 13 the Department and cooperating entities shall notify 14 the Governor of the State, the local child welfare 15 agency, and relevant State and local law enforce- 16 ment before commencing the action, or, if advance 17 notification is not possible, immediately after com- 18 mencing such action, of— 19 (A) the approximate number of individuals 20 to be targeted in the immigration enforcement 21 action; and 22 (B) the primary language or languages be- 23 lieved to be spoken by individuals at the tar- 24 geted site. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00471 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 472 •S 1258 IS (2) HOURS OF NOTIFICATION.—To the extent 1 possible, advance notification under paragraph (1) 2 should occur during business hours and allow the 3 notified entities sufficient time to identify resources 4 to conduct the interviews described in subsection 5 (b)(1). 6 (3) OTHER NOTIFICATION.—When conducting 7 any immigration action involving more than 10 indi- 8 viduals, the Department and cooperating entities 9 shall notify the relevant local education agency and 10 local NGOs of the information described in para- 11 graph (1) immediately after commencing the action. 12 (b) APPREHENSION PROCEDURES.—In any immigra- 13 tion enforcement action involving more than 10 individ- 14 uals, the Department and cooperating entities shall— 15 (1) as soon as possible and not later than 6 16 hours after an immigration enforcement action, pro- 17 vide licensed social workers or case managers em- 18 ployed or contracted by the child welfare agency or 19 local NGOs with confidential access to screen and 20 interview individuals apprehended in such immigra- 21 tion enforcement action to assist the Department or 22 cooperating entity in determining if such individuals 23 are parents, legal guardians, or primary caregivers 24 of a child in the United States; 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00472 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 473 •S 1258 IS (2) as soon as possible and not later than 8 1 hours after an immigration enforcement action, pro- 2 vide any apprehended individual believed to be a 3 parent, legal guardian, or primary caregiver of a 4 child in the United States with— 5 (A) free, confidential telephone calls, in- 6 cluding calls to child welfare agencies, attor- 7 neys, and legal services providers, to arrange 8 for the care of children or wards, unless the De- 9 partment has reasonable grounds to believe that 10 providing confidential phone calls to the indi- 11 vidual would endanger public safety or national 12 security; and 13 (B) contact information for— 14 (i) child welfare agencies in all 50 15 States, the District of Columbia, all United 16 States territories, counties, and local juris- 17 dictions; and 18 (ii) attorneys and legal service pro- 19 viders capable of providing free legal advice 20 or free legal representation regarding child 21 welfare, child custody determinations, and 22 immigration matters; 23 (3) ensure that personnel of the Department 24 and cooperating entities do not— 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00473 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 474 •S 1258 IS (A) interview individuals in the immediate 1 presence of children; or 2 (B) compel or request children to translate 3 for interviews of other individuals who are en- 4 countered as part of an immigration enforce- 5 ment action; and 6 (4) ensure that any parent, legal guardian, or 7 primary caregiver of a child in the United States— 8 (A) receives due consideration of the best 9 interests of his or her children or wards in any 10 decision or action relating to his or her deten- 11 tion, release, or transfer between detention fa- 12 cilities; and 13 (B) is not transferred from his or her ini- 14 tial detention facility or to the custody of the 15 Department until the individual— 16 (i) has made arrangements for the 17 care of his or her children or wards; or 18 (ii) if such arrangements are impos- 19 sible, is informed of the care arrangements 20 made for the children and of a means to 21 maintain communication with the children. 22 (c) NONDISCLOSURE AND RETENTION OF INFORMA- 23 TION ABOUT APPREHENDED INDIVIDUALS AND THEIR 24 CHILDREN.— 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00474 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 475 •S 1258 IS (1) IN GENERAL.—Information collected by 1 child welfare agencies and NGOs in the course of 2 the screenings and interviews described in subsection 3 (b)(1) about an individual apprehended in an immi- 4 gration enforcement action may not be disclosed to 5 Federal, State, or local government entities or to 6 any person, except pursuant to written authorization 7 from the individual or his or her legal counsel. 8 (2) CHILD WELFARE AGENCY OR NGO REC- 9 OMMENDATION.—Notwithstanding paragraph (1), a 10 child welfare agency or NGO may— 11 (A) submit a recommendation to the De- 12 partment of Homeland Security or cooperating 13 entities regarding whether an apprehended indi- 14 vidual is a parent, legal guardian, or primary 15 caregiver who is eligible for the protections pro- 16 vided under this Act; and 17 (B) disclose information that is necessary 18 to protect the safety of the child, to allow for 19 the application of subsection (b)(4)(A), or to 20 prevent reasonably certain death or substantial 21 bodily harm. 22 SEC. 264. DETENTION OF FAMILIES. 23 (a) PLACEMENT IN REMOVAL PROCEEDINGS.—Any 24 family with children sought to be removed by the Depart- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00475 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 476 •S 1258 IS ment shall be placed in removal proceedings under section 1 240 of the Immigration and Nationality Act (8 U.S.C. 2 1229a). 3 (b) CUSTODY OF FAMILIES WITH CHILDREN.— 4 (1) SEPARATION.—Families with children shall 5 not be separated or taken into custody except when 6 justified by exceptional circumstances, or when re- 7 quired by law. 8 (2) EXCEPTIONAL CIRCUMSTANCES.—In excep- 9 tional circumstances, if release or a secure alter- 10 natives program is not an option for families with 11 children, the Secretary shall ensure that— 12 (A) special nonpenal, residential, home-like 13 facilities that enable families to live as a family 14 unit are designed to house families with chil- 15 dren, taking into account the particular needs 16 and vulnerabilities of the children; 17 (B) procedures and conditions of custody 18 are appropriate for families with children; 19 (C) entities with demonstrated experience 20 and expertise in child welfare staff and are re- 21 sponsible for the management of facilities hous- 22 ing families with children; 23 (D) unless such restrictions are necessary 24 to prevent flight or to ensure the safety of resi- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00476 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 477 •S 1258 IS dents, families with children are not subject to 1 restrictions— 2 (i) on freedom of movement; 3 (ii) involving access to visitations, 4 telephones, internet, a library, and a law li- 5 brary; 6 (iii) regarding possession of personal 7 property, including personal clothing; 8 (iv) on the availability of age appro- 9 priate education; or 10 (v) religious practices; 11 (E) individualized reviews by an immigra- 12 tion judge of each family’s well being, custody 13 status and the need for continued detention are 14 conducted every 30 days for any family held in 15 such a facility for more than 3 weeks; 16 (F) all families are notified in writing of 17 the decisions resulting from such reviews and of 18 the individualized reasons for the decision; and 19 (G) parents retain fundamental parental 20 rights and responsibilities, including the dis- 21 cipline of children, in accordance with applica- 22 ble State laws. 23 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00477 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 478 •S 1258 IS (c) DISCRETIONARY WAIVER AUTHORITY FOR FAMI- 1 LIES WITH CHILDREN.—Section 235(b)(1)(B)(iii) (8 2 U.S.C. 1225(b)(1)(B)(iii)) is amended— 3 (1) in subclause (IV), by striking ‘‘Any alien’’ 4 and inserting ‘‘Except as provided in subclause (V), 5 any alien’’; and 6 (2) by adding at the end the following: 7 ‘‘(V) DISCRETIONARY WAIVER 8 AUTHORITY FOR FAMILIES WITH 9 CHILDREN.—The Secretary of Home- 10 land Security may decide for humani- 11 tarian reasons or significant public 12 benefit not to detain families with 13 children who are otherwise subject to 14 mandatory detention under subclause 15 (IV).’’. 16 SEC. 265. ACCESS TO CHILDREN, LOCAL AND STATE 17 COURTS, CHILD WELFARE AGENCIES, AND 18 CONSULAR OFFICIALS. 19 (a) IN GENERAL.—The Secretary shall ensure that 20 all detention facilities operated by or under agreement 21 with the Department implement procedures to ensure that 22 the best interest of the child, including the best outcome 23 for the family of the child, is considered in any decision 24 or action relating to the custody of children whose parent, 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00478 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 479 •S 1258 IS legal guardian, or primary caregiver is detained as the re- 1 sult of an immigration enforcement action. 2 (b) ACCESS TO CHILDREN, STATE AND LOCAL 3 COURTS, CHILD WELFARE AGENCIES, AND CONSULAR 4 OFFICIALS.—At all detention facilities operated by, or 5 under agreement with, the Department, the Secretary 6 shall— 7 (1) ensure that individuals who are detained by 8 reason of their immigration status may receive the 9 screenings and interviews described in section 10 263(b)(1) not later than 6 hours after their arrival 11 at the detention facility; 12 (2) ensure that individuals who are detained by 13 reason of their immigration status and are believed 14 to be parents, legal guardians, or primary caregivers 15 of children in the United States are— 16 (A) permitted daily phone calls and regular 17 contact visits with their children or wards; 18 (B) able to participate fully, and to the ex- 19 tent possible in-person, in all family court pro- 20 ceedings and any other proceeding impacting 21 upon custody of their children or wards; 22 (C) able to fully comply with all family 23 court or child welfare agency orders impacting 24 upon custody of their children or wards; 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00479 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 480 •S 1258 IS (D) provided with contact information for 1 family courts in all 50 States, the District of 2 Columbia, all United States territories, coun- 3 ties, and local jurisdictions; 4 (E) granted free and confidential telephone 5 calls to child welfare agencies and family 6 courts; 7 (F) granted free and confidential telephone 8 calls and confidential in-person visits with at- 9 torneys, legal representatives, and consular offi- 10 cials; 11 (G) provided United States passport appli- 12 cations for the purpose of obtaining travel docu- 13 ments for their children or wards; 14 (H) granted adequate time before removal 15 to obtain passports and other necessary travel 16 documents on behalf of their children or wards 17 if such children or wards will accompany them 18 on their return to their country of origin or join 19 them in their country of origin; and 20 (I) provided with the access necessary to 21 obtain birth records or other documents re- 22 quired to obtain passports for their children or 23 wards; and 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00480 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 481 •S 1258 IS (3) facilitate the ability of detained parents, 1 legal guardians, and primary caregivers to share in- 2 formation regarding travel arrangements with their 3 children or wards, child welfare agencies, or other 4 caregivers well in advance of the detained individ- 5 ual’s departure from the United States. 6 SEC. 266. MEMORANDA OF UNDERSTANDING. 7 The Secretary shall develop and implement memo- 8 randa of understanding or protocols with child welfare 9 agencies and NGOs regarding the best ways to cooperate 10 and facilitate ongoing communication between all relevant 11 entities in cases involving a child whose parent, legal 12 guardian, or primary caregiver has been apprehended or 13 detained in an immigration enforcement action to protect 14 the best interests of the child and the best outcome for 15 the family of the child. 16 SEC. 267. MANDATORY TRAINING. 17 The Secretary, in consultation with the Secretary of 18 Health and Human Services and independent child welfare 19 experts, shall require and provide in-person training on 20 the protections required to all personnel of the Depart- 21 ment and of States and local entities acting under agree- 22 ment with the Department who regularly come into con- 23 tact with children or parents in the course of conducting 24 immigration enforcement actions. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00481 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 482 •S 1258 IS SEC. 268. ALTERNATIVES TO DETENTION. 1 (a) SECURE ALTERNATIVES.—The Secretary shall 2 establish secure alternatives programs to ensure public 3 safety and appearances at immigration proceedings. The 4 Secretary may use secure alternatives programs to main- 5 tain custody over any alien detained under the Immigra- 6 tion and Nationality Act, except aliens detained under sec- 7 tion 236A of such Act (8 U.S.C. 1226a). If an individual 8 is not eligible for release from custody, the Secretary shall 9 consider the alien for placement in secure alternatives that 10 maintain custody over the alien, including the use of elec- 11 tronic ankle devices. 12 (b) CONTRACTS AUTHORIZED.—The Secretary shall 13 contract with nongovernmental organizations to conduct 14 screening of detainees, provide appearance assistance serv- 15 ices, and operate community-based supervision programs. 16 (c) INDIVIDUALIZED DETERMINATIONS.—When de- 17 ciding whether to use custodial secure alternatives, the 18 Secretary shall make an individualized determination and 19 review each case on a monthly basis. 20 SEC. 269. DETENTION CONDITIONS. 21 (a) DETENTION REQUIREMENTS.— 22 (1) IN GENERAL.—The Secretary shall ensure 23 that all persons detained pursuant to the Immigra- 24 tion and Nationality Act (8 U.S.C. 1101 et seq.) are 25 treated humanely and granted the protections set 26 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00482 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 483 •S 1258 IS forth in this section by complying and enforcing the 1 minimum requirements under this subsection. 2 (2) QUALITY OF MEDICAL CARE.— 3 (A) IN GENERAL.—Each detainee has the 4 right to prompt and adequate medical care, de- 5 signed to ensure continuity of care, at no cost 6 to the detainee, including care to address med- 7 ical needs that existed before the detainee was 8 placed in detention, primary care, emergency 9 care, chronic care, reproductive health care, 10 prenatal care, dental care, eye care, mental 11 health care, medical dietary needs, and other 12 medically necessary specialized care. The Sec- 13 retary shall discontinue the use of any short 14 term facility or detention facility that fails to 15 maintain accreditation for more than 1 year. 16 (B) INTAKE SCREENING AND EXAMINA- 17 TION.—Each detainee shall receive, from a li- 18 censed health care professional— 19 (i) a comprehensive medical, dental, 20 and mental health intake screening upon 21 arrival at the detention facility; and 22 (ii) a comprehensive medical and men- 23 tal health examination not later than 14 24 days after arrival. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00483 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 484 •S 1258 IS (C) MEDICATIONS.— 1 (i) PRESCRIPTION MEDICATIONS.— 2 Each detainee taking prescribed medica- 3 tions prior to detention shall be allowed to 4 continue taking such medications, on 5 schedule and without interruption, until 6 and unless a licensed health care profes- 7 sional examines the immigration detainee 8 and decides upon an alternative course of 9 treatment. Detainees who arrive at a de- 10 tention facility with prescription medica- 11 tions shall be permitted to continue taking 12 their medications, on schedule and without 13 interruption, until such time as a qualified 14 health care professional examines the de- 15 tainee and decides upon an alternative 16 course of treatment. Detainees who arrive 17 at a detention facility without prescription 18 medications but who report being on such 19 medications shall be evaluated by a quali- 20 fied health care professional as soon as 21 possible, but not later than 24 hours after 22 arrival. All decisions to discontinue or 23 modify a detainee’s reported prescription 24 medication regimen shall be conveyed to 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00484 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 485 •S 1258 IS the detainee in a language that the de- 1 tainee understands and shall be recorded 2 in writing in the detainee’s medical 3 records. 4 (ii) INVOLUNTARY PSYCHOTROPIC 5 MEDICATION.—Involuntary psychotropic 6 medication may be used only if allowed by 7 applicable law and then only in emergency 8 situations when a physician has deter- 9 mined, after personally examining the pa- 10 tient, that a detainee is imminently dan- 11 gerous to self or others due to a mental ill- 12 ness and that involuntary psychotropic 13 medication is medically appropriate to 14 treat the mental illness and necessary to 15 prevent harm. Medication shall not be forc- 16 ibly administered to a detainee to facilitate 17 transport, removal or otherwise to control 18 the detainee’s behavior. 19 (D) MEDICALLY NECESSARY TREAT- 20 MENT.—Each detainee shall be provided access 21 to medically necessary treatment, including, for 22 female detainees, prenatal care, prenatal vita- 23 mins, and hormonal therapies, such as birth 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00485 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 486 •S 1258 IS control, and adequate access to sanitary prod- 1 ucts. 2 (E) ON-SITE MEDICAL PROVIDERS.—Any 3 decision regarding requested medical care for a 4 detainee— 5 (i) shall be made in writing by an on- 6 site licensed health care professional within 7 72 hours; and 8 (ii) shall be communicated to the de- 9 tainee without delay. 10 (F) ADMINISTRATIVE APPEALS PROC- 11 ESS.—Detention facilities, in conjunction with 12 the Department, shall provide for an adminis- 13 trative process for handling appeals of denials 14 of medical or mental health treatment or care. 15 Detention facilities, in conjunction with the De- 16 partment, shall ensure that detainees, medical 17 providers, and legally-appointed advocates have 18 the opportunity to appeal a denial of requested 19 health care services by an on-site provider to an 20 independent appeals board. The appeals board 21 shall include health care professionals in the 22 fields relevant to the request for medical or 23 mental health care. Any such appeal shall be re- 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00486 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 487 •S 1258 IS solved in writing within 7 days by the appeals 1 board or earlier if medically necessary. 2 (G) REVIEW OF ON-SITE MEDICAL PRO- 3 VIDER REQUESTS.—The Secretary shall respond 4 within 72 hours to any request by an on-site 5 medical provider for authorization to provide 6 medical or mental health care to an immigra- 7 tion detainee. In each case in which the Sec- 8 retary denies or fails to grant such a request by 9 the onsite medical provider, a written expla- 10 nation of the reasons for the decision shall be 11 conveyed without delay to the on-site medical 12 provider and the immigration detainee. The on- 13 site medical provider and immigration detainee 14 (or legally appointed advocate) shall be per- 15 mitted to appeal the denial of or failure to 16 grant the requested health care service. Such 17 appeal shall be resolved in writing within 7 days 18 by an impartial appeals board or earlier if 19 medically necessary and communicated without 20 delay to the on-site medical provider and the 21 immigration detainee. 22 (H) MEDICAL RELEASE.—Any detainee 23 deemed by a licensed health care professional to 24 have a medical or mental health care condition 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00487 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 488 •S 1258 IS shall be considered for release on parole, on 1 bond, or into a secure alternatives program, 2 with periodic reevaluations for such detainees 3 not initially released. Upon removal or release, 4 all detainees with medical or mental health con- 5 ditions and women who are pregnant, post- 6 natal, and nursing mothers shall receive dis- 7 charge planning to ensure continuity of care for 8 a reasonable period of time. 9 (I) MEDICAL RECORDS.—The Department 10 shall maintain complete, confidential medical 11 records for every detainee, which shall be made 12 available within 72 hours upon request to a de- 13 tainee or individuals authorized by the detainee. 14 Immediately upon an immigration detainee’s 15 transfer from 1 detention facility to another, 16 the immigration detainee’s complete medical 17 records, including any transfer summary, shall 18 be provided to the receiving facility. 19 (3) TRANSFERS OF DETAINEES.— 20 (A) NOTICE.—Absent exigent cir- 21 cumstances, such as a natural disaster or com- 22 parable emergency, the Secretary shall provide 23 not less than 72 hours written notice to any de- 24 tainee before such detainee is transferred to an- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00488 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 489 •S 1258 IS other detention facility. Not later than 24 hours 1 after a transfer, the Secretary shall notify, by 2 telephone and in writing, the detainee’s legal 3 representative or other person designated by the 4 detainee of the transfer. 5 (B) PROCEDURES.—Absent exigent cir- 6 cumstances, such as a natural disaster or com- 7 parable emergency, the Secretary may not 8 transfer a detainee to another detention facility 9 if such transfer would— 10 (i) impair an existing attorney-client 11 relationship; 12 (ii) prejudice the rights of the de- 13 tainee in any legal proceeding, including 14 any Federal, State or administrative pro- 15 ceeding; or 16 (iii) negatively affect the detainee’s 17 health, including by interrupting the con- 18 tinuity of medical care or provision of pre- 19 scription medication. 20 (C) TRANSPORTATION.—The Secretary 21 shall ensure the safe transport and deportation 22 of each individual detained under the Immigra- 23 tion and Nationality Act (8 U.S.C. 1101 et 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00489 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 490 •S 1258 IS seq.), including the appropriate use of safety 1 harnesses and occupancy limitations of vehicles. 2 (4) ACCESS TO TELEPHONES.— 3 (A) IN GENERAL.—The Secretary shall en- 4 sure that detainees at detention facilities are 5 provided with reasonable access to telephones 6 not later than 6 hours after the commencement 7 of their detention. Such access shall include not 8 fewer than 1 working phone for every 25 de- 9 tainees. 10 (B) TOLL-FREE NUMBERS.—Each detainee 11 has the right to contact, free of charge through 12 confidential toll-free numbers— 13 (i) legal representatives; 14 (ii) designated nongovernmental orga- 15 nizations; 16 (iii) consular officials; 17 (iv) Federal and State courts where 18 the detainee is or may become involved in 19 a legal proceeding; and 20 (v) all Government immigration agen- 21 cies and adjudicatory bodies, including the 22 Office of the Inspector General and the Of- 23 fice for Civil Rights and Civil Liberties of 24 the Department. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00490 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 491 •S 1258 IS (C) PRIVACY.—The Secretary shall— 1 (i) make confidential calls available at 2 no charge to detainees, who are subject to 3 expedited removal or who are experiencing 4 personal or family emergencies, including 5 the need to arrange care for dependents, 6 for the purpose of obtaining legal represen- 7 tation or discussing other legal matters; 8 and 9 (ii) ensure that rates charged in de- 10 tention facilities for telephone calls are rea- 11 sonable and do not significantly impair the 12 detainee’s right to access telephones. 13 (5) PHYSICAL AND SEXUAL ABUSE.—No de- 14 tainee, whether in a detention facility or short term 15 detention facility, shall be subject to degrading or in- 16 humane treatment such as physical abuse, sexual 17 abuse or harassment, or arbitrary punishment. De- 18 tention facilities shall take all necessary measures to 19 prevent sexual abuse and sexual assaults of detain- 20 ees, to provide medical and mental health treatment 21 to victims of sexual abuse and sexual assaults and 22 shall comply fully with the standards under the Pris- 23 on Rape Elimination Act of 2003 (42 U.S.C. 15601 24 et seq.) 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00491 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 492 •S 1258 IS (6) LIMITATIONS ON SOLITARY CONFINEMENT 1 AND STRIP SEARCHES.—The use of solitary confine- 2 ment, shackling, and strip searches of detainees 3 shall be limited to situations where the use of such 4 techniques is necessitated by extraordinary cir- 5 cumstances when the safety of other persons is at 6 imminent risk. These techniques shall in no event be 7 used for the purpose of humiliating detainees either 8 within or outside the detention facility. Detention fa- 9 cilities shall adopt written policies pertaining to the 10 use of force and the use of restraints and shall train 11 all staff on the proper use of such devices. Solitary 12 confinement, shackling and strip searches shall not 13 be used on pregnant women, nursing mothers, 14 women in labor or delivery or children who are 15 younger than 18 years of age. Strip searches shall 16 not be conducted in front of children who are young- 17 er than 21 years of age. 18 (7) LOCATION OF DETENTION FACILITIES.—All 19 new detention facilities used by the Department 20 shall be located within 50 miles of a city or munici- 21 pality in which there is a demonstrated capacity to 22 provide free or low-cost legal representation by non- 23 profit legal aid organizations or pro bono attorneys 24 with expertise in asylum or immigration law. By 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00492 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 493 •S 1258 IS January 1, 2013, all detention facilities used by the 1 Department shall meet this requirement, and if the 2 Secretary is unable to comply, the Secretary shall 3 submit a report to Congress on that date and annu- 4 ally each year thereafter, explaining the reasons for 5 the failure and the specific plans to meet the re- 6 quirement. 7 (8) ACCESS TO IMMIGRATION COURTS.—At any 8 detention facility where a contract to house immigra- 9 tion detainees is newly made, renewed, or extended 10 during the period beginning on the date of the en- 11 actment of this Act and ending on December 31, 12 2013, detainees in removal proceedings shall appear 13 before the immigration court in person, unless in 14 person appearance is knowingly waived in writing by 15 the detainee or the detainee’s representative. 16 (9) TRANSLATION CAPABILITIES.—Detention 17 facilities and short term detention facilities shall em- 18 ploy facility staff who are professionally qualified in 19 any language spoken by more than 10 percent of its 20 immigration detainee population. All short term de- 21 tention facilities and detention facilities shall provide 22 alternative translation services in the exceptional cir- 23 cumstances when trained bilingual staff members 24 are unavailable to translate. All such facilities shall 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00493 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 494 •S 1258 IS provide notices and written materials to detainees 1 translated in any language spoken by more than 5 2 percent of its immigration detainee population. 3 (10) LEGAL ACCESS.—Detainees in detention 4 facilities have the right to access legal information, 5 including an on-site law library with up-to-date legal 6 materials and law databases. Each detainee has the 7 right to access free of charge the necessary equip- 8 ment and materials for legal research and cor- 9 respondence, such as computers, printers, copiers, 10 and typewriters. The Secretary shall ensure each de- 11 tainee is provided with information regarding the 12 availability of legal information and services to assist 13 those with limited English proficiency or disabilities. 14 Detention facilities shall also provide access for each 15 detainee to meet confidentially with legal counsel 16 and shall provide services to send confidential legal 17 documents to legal counsel, government offices and 18 legal organizations. 19 (11) VISITATIONS.—Detainees in detention fa- 20 cilities have the right to meet privately with his or 21 her current or prospective legal representative, inter- 22 preters, and other legal support staff a minimum of 23 8 hours per day on regular business days and 4 24 hours per day on weekends and holidays, subject to 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00494 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 495 •S 1258 IS appropriate security procedures. Legal visits shall 1 not be restricted absent narrowly defined exceptional 2 circumstances, such as a natural disaster or com- 3 parable emergency. Detention facilities shall promi- 4 nently post official lists, updated semi-annually by 5 the Secretary of Homeland Security, of pro bono 6 legal organizations and their contact information in 7 detainee housing units and other appropriate areas. 8 Each detainee has the right to reasonable access to 9 religious or other qualified individuals to address re- 10 ligious, cultural, or spiritual considerations. Detain- 11 ees have the right to regular, private contact visits 12 with children who are younger 18 years of age. 13 (12) RECREATIONAL PROGRAMS AND ACTIVI- 14 TIES.—Detainees in detention facilities shall be af- 15 forded access to at least 1 hour each day of indoor 16 and outdoor recreational programs and activities for 17 detainees. 18 (13) TRAINING OF PERSONNEL.—All personnel 19 in detention facilities and short term detention facili- 20 ties shall be given a comprehensive specialized train- 21 ing and regular, periodic updates that shall include 22 at a minimum an overview of immigration detention 23 and all detention standards; the characteristics of 24 the non-citizen detainee population including special 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00495 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 496 •S 1258 IS characteristics of vulnerable groups; and the due 1 process and grievance procedures to protect the 2 rights of detainees. 3 (14) SHORT TERM DETENTION FACILITIES.— 4 (A) IN GENERAL.—All detainees in short 5 term detention facilities shall receive— 6 (i) potable water; 7 (ii) food, if detained for more than 5 8 hours; 9 (iii) basic toiletries, diapers, sanitary 10 products, blankets; and 11 (iv) access to bathroom facilities and 12 telephones. 13 (B) CONSULAR OFFICIALS.—The Secretary 14 or his designates shall provide consular officials 15 with access to detainees held at such facilities. 16 (C) HEALTH CARE.—Detainees shall be af- 17 forded reasonable access to a licensed health 18 care professional. 19 (D) NURSING MOTHERS.—The Secretary 20 shall ensure that nursing mothers in such facili- 21 ties have access to their children. 22 (E) PROPERTY.—Any property the De- 23 partment confiscates from detainees shall be re- 24 turned upon repatriation or transfer. 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00496 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 497 •S 1258 IS (F) PROTECTIONS FOR CHILDREN.—The 1 Secretary shall provide adequately trained and 2 qualified staff at each major port of entry (as 3 defined by the U.S. Customs and Border Pro- 4 tection station assigned to that port having in 5 its custody over the past 2 fiscal years an aver- 6 age per year of 50 or more unaccompanied 7 alien children (as defined in section 462 of the 8 Homeland Security Act of 2002 (6 U.S.C. 9 279))), including U.S. Customs and Border 10 Protection agents charged primarily with the 11 safe, swift, and humane transportation of unac- 12 companied alien children to Office of Refugee 13 Resettlement custody and independent licensed 14 social workers dedicated to ensuring the proper 15 temporary care for the children while in De- 16 partment custody before their transfer to the 17 Office of Refugee Resettlement. These staff will 18 ensure that each child— 19 (i) receives emergency medical care; 20 (ii) receives mental health care in case 21 of trauma and has access to psychosocial 22 health services; 23 (iii) is provided with a pillow, linens, 24 and sufficient blankets to rest at a com- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00497 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 498 •S 1258 IS fortable temperature, a bed, and a mat- 1 tress placed in an area specifically des- 2 ignated for residential use; 3 (iv) receives adequate nutrition; 4 (v) enjoys a safe and sanitary living 5 environment; 6 (vi) receives educational materials; 7 and 8 (vii) has access to at least 3 hours of 9 indoor and outdoor recreational programs 10 and activities per day. 11 (G) CONFIDENTIALITY.—The Secretary of 12 Health and Human Services shall maintain the 13 privacy and confidentiality of all information 14 gathered in the course of providing care, cus- 15 tody, placement and follow-up services to unac- 16 companied alien children, consistent with the 17 best interest of the unaccompanied alien child, 18 by not disclosing such information to other gov- 19 ernment agencies or nonparental third parties. 20 The Secretary may share information when au- 21 thorized to do so by the child and when con- 22 sistent with the child’s best interest. The Sec- 23 retary may provide information to a duly recog- 24 nized law enforcement entity, if such disclosure 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00498 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 499 •S 1258 IS would prevent imminent and serious harm to 1 another individual. All disclosures shall be duly 2 recorded in writing and placed in the child’s 3 files. 4 (15) VULNERABLE POPULATIONS.—Detention 5 facility conditions and minimum requirements for 6 detention facilities shall recognize and accommodate 7 the unique needs of vulnerable populations as de- 8 fined by this Act. 9 (16) CHILDREN.—The Secretary shall ensure 10 that unaccompanied alien children (as defined in 11 section 462 of the Homeland Security Act of 2002 12 (6 U.S.C. 279)) are physically separated from any 13 adult who is not an immediate family member and 14 are separated by sight and sound from immigration 15 detainees and inmates with criminal convictions, pre- 16 trial inmates facing criminal prosecution, children 17 who have been adjudicated delinquents or convicted 18 of adult offenses or are pending delinquency or 19 criminal proceedings, and those inmates exhibiting 20 violent behavior while in detention as is consistent 21 with the Juvenile Justice and Delinquency Preven- 22 tion Act of 1974 (42 U.S.C. 5601 et seq.) 23 (b) RULEMAKING AND ENFORCEMENT.— 24 (1) IN GENERAL.— 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00499 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 500 •S 1258 IS (A) NOTICE OF PROPOSED RULE- 1 MAKING.—Not later than 60 days after the date 2 of the enactment of this Act, the Secretary shall 3 issue a notice of proposed rulemaking regarding 4 the enforcement of this section. 5 (B) FINAL REGULATIONS.—Not later than 6 180 days after the date of the enactment of this 7 Act, the Secretary shall promulgate regulations, 8 binding upon all short term detention facilities 9 and detention facilities, to ensure that the de- 10 tention requirements under subsection (a) are 11 fully implemented and enforced, and that all fa- 12 cilities comply with the regulations. 13 (2) ENFORCEMENT.— 14 (A) IN GENERAL.—The Secretary shall en- 15 force all regulations promulgated under para- 16 graph (1). 17 (B) GUIDANCE.—Not later than 180 days 18 after the date of the enactment of this Act, the 19 Secretary shall issue guidance for ensuring that 20 short term detention facilities and detention fa- 21 cilities comply with all detention requirements 22 and all regulations and standards promulgated 23 under paragraph (1). 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00500 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 501 •S 1258 IS (C) COMPLIANCE MECHANISMS.—To en- 1 sure the compliance described in subparagraph 2 (B), the Secretary— 3 (i) shall establish mechanisms for re- 4 viewing any evidence of noncompliance 5 with the provisions under this section; 6 (ii) may impose financial penalties 7 upon noncompliant detention facilities; and 8 (iii) may terminate the contracts of 9 persistently noncompliant detention facili- 10 ties. 11 (D) INVESTIGATIONS.—The Secretary 12 shall investigate evidence pertaining to viola- 13 tions of the provisions under this section, in- 14 cluding detainee complaints. The Secretary 15 shall complete such investigation not later than 16 30 days after collecting the relevant evidence. If 17 the Secretary determines that a violation has 18 occurred, the Secretary shall ensure that such 19 violation is remedied not later than 30 days 20 after such determination. A decision by the Sec- 21 retary not to pursue such an enforcement ac- 22 tion shall constitute final agency action. 23 (E) GRIEVANCES.—Each detainee has the 24 right to file grievances with the staff of short 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00501 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 502 •S 1258 IS term detention facilities, detention facilities, 1 and the Department and shall be protected 2 from retaliation. 3 (F) COMPLIANCE OFFICER.—Each short 4 term detention facility and detention facility 5 shall designate an officer to ensure compliance 6 with the provisions of this section. Such officer 7 shall investigate all evidence pertaining to a vio- 8 lation of this section. If a violation is identified, 9 the officer shall remedy the violation not later 10 than 30 days after such identification. 11 (G) JUDICIAL REVIEW.—A detainee may 12 not seek— 13 (i) review in district court until after 14 the passage of the 30-day remediation pe- 15 riod described in subparagraph (F); 16 (ii) remedy in district court unless he 17 or she has complied with the procedures 18 promulgated under this subsection; or 19 (iii) punitive damages for violations of 20 this section. 21 (H) RULE OF CONSTRUCTION.—Nothing in 22 the section may be construed to preclude review 23 of noncompliance with this section under sec- 24 tion 1983 of title 42, United States Code. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00502 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 503 •S 1258 IS (c) DETENTION COMMISSION.— 1 (1) APPOINTMENT.—The Secretary shall ap- 2 point and convene a detention commission comprised 3 of— 4 (A) experts from U.S. Immigration and 5 Customs Enforcement, U.S. Customs and Bor- 6 der Protection, the Office of Refugee Resettle- 7 ment, and Division of Immigration Health 8 Services in the Department of Health and 9 Human Services; and 10 (B) an equal number of independent ex- 11 perts from nongovernmental organizations and 12 intergovernmental organizations with expertise 13 in working on behalf of aliens detained under 14 immigration laws and vulnerable populations. 15 (2) DUTIES.—The detention commission shall 16 conduct independent investigations, evaluate, and re- 17 port on the compliance of short term detention fa- 18 cilities, detention facilities, and the Department with 19 the requirements set forth in this section. 20 (3) REPORT.—Not later than 60 days after end 21 of the fiscal year during which this Act was enacted, 22 and biennially thereafter, the detention commission 23 shall submit a report on the duties set forth in para- 24 graph (2) to— 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00503 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 504 •S 1258 IS (A) the Committee on the Judiciary of the 1 Senate; 2 (B) the Committee on Homeland Security 3 and Governmental Affairs of the Senate; 4 (C) the Committee on the Judiciary of the 5 House of Representatives; and 6 (D) the Committee on Homeland Security 7 of the House of Representatives. 8 (d) DEATH IN CUSTODY REPORTING REQUIRE- 9 MENT.— 10 (1) IN GENERAL.—If an individual dies while in 11 the custody of the Department or en route to or 12 from custody, the supervising official at a short term 13 detention facility or detention facility shall imme- 14 diately report such death to the Secretary. Not later 15 than 48 hours after receiving the report of such 16 death, the Secretary shall report the death to the 17 Office of the Inspector General of the Department 18 and the Department of Justice. 19 (2) INVESTIGATIONS.—The Department shall 20 complete an investigation of each detainee death 21 that shall be conducted consistent with established 22 medical practice for morbidity and mortality reviews 23 and examine both individual and systemic contribu- 24 tors to the death. The investigation shall be con- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00504 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 505 •S 1258 IS ducted by a panel of physicians with experience in 1 morbidity and mortality reviews and shall include 2 the medical staff of the facility or facilities that 3 cared for the deceased detainee, physicians from 4 within the Department, and independent physicians 5 not affiliated with the Department or facility. The 6 panel shall complete a report and corrective action 7 plan in each case. 8 (3) REPORTS.— 9 (A) IN GENERAL.—Not later than 60 days 10 after the end of each fiscal year, the Secretary 11 shall submit a report to the committees set 12 forth in subsection (c)(3) that contains detailed 13 information regarding all detainee deaths dur- 14 ing the preceding fiscal year, including— 15 (i) each mortality and morbidity re- 16 port; 17 (ii) each corrective action plan; and 18 (iii) corrective actions taken. 19 (B) CONTENTS.—The reports to the Office 20 of the Inspector General and to Congress re- 21 ferred to in paragraph (1) shall include— 22 (i) the name, gender, race, ethnicity, 23 and age of the deceased; 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00505 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 506 •S 1258 IS (ii) the date, time, and location of 1 death; 2 (iii) the law enforcement agency that 3 detained, arrested, or was in the process of 4 arresting the deceased; 5 (iv) a description of the circumstances 6 surrounding the death; 7 (v) the status and results of any in- 8 vestigation that has been conducted into 9 the circumstances surrounding the death; 10 and 11 (vi) all medical records of the de- 12 ceased. 13 SEC. 270. ACCESS TO COUNSEL. 14 Section 240(b)(4) (8 U.S.C. 1229a(b)(4)) is amend- 15 ed— 16 (1) in the matter preceding subparagraph (A), 17 by striking ‘‘In proceedings under this section, under 18 regulations of the Attorney General’’ and inserting 19 ‘‘The Attorney General shall promulgate regulations 20 for proceedings under this section, under which—’’ 21 (2) in subparagraph (B), by striking ‘‘, and’’ at 22 the end and inserting a semicolon; 23 (3) by redesignating subparagraph (C) as sub- 24 paragraph (D); and 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00506 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 507 •S 1258 IS (4) by inserting after subparagraph (B) the fol- 1 lowing: 2 ‘‘(C) the Attorney General, or the designee 3 of the Attorney General, may appoint counsel to 4 represent an alien if the fair resolution or effec- 5 tive adjudication of the proceedings would be 6 served by appointment of counsel; and’’. 7 SEC. 271. GROUP LEGAL ORIENTATION PRESENTATIONS. 8 (a) ESTABLISHMENT OF A NATIONAL LEGAL ORI- 9 ENTATION SUPPORT AND TRAINING CENTER.—The At- 10 torney General, in consultation with the Secretary, shall 11 establish a National Legal Orientation Support and Train- 12 ing Center (referred to in this section as the ‘‘Center’’) 13 to ensure quality and consistent implementation of group 14 legal orientation programs nationwide. 15 (b) DUTIES.—The Center shall— 16 (1) offer training to nonprofit agencies that will 17 offer group legal orientation programs; 18 (2) consult with nonprofit agencies offering 19 group legal orientation programs regarding program 20 development and substantive legal issues; 21 (3) develop standards for group legal orienta- 22 tion programs; and 23 (4) ensure that all detained aliens in immigra- 24 tion and asylum proceedings under sections 235, 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00507 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 508 •S 1258 IS 238, 240, and 241(b)(5) of the Immigration and 1 Nationality Act (8 U.S.C. 1225, 1228, 1229a, and 2 1231(b)(5)) receive group legal orientation pro- 3 grams. 4 (c) PROCEDURES.—The Secretary shall establish pro- 5 cedures for regularly scheduled, group legal orientation 6 presentations. 7 (d) GRANTS AUTHORIZED.—The Attorney General 8 shall establish a program to award grants to nongovern- 9 mental agencies to develop, implement, or expand legal 10 orientation programs for all detainees at a detention facil- 11 ity that offers such programs. 12 SEC. 272. PROTECTIONS FOR REFUGEES. 13 (a) PROTECTION OF REFUGEES PRIOR TO ADJUST- 14 MENT.—Section 209 (8 U.S.C. 1159) is amended— 15 (1) in subsection (a)(1), by striking ‘‘return or 16 be returned to the custody of the Department of 17 Homeland Security for inspection and examination 18 for admission to the United States as an immigrant 19 in accordance with the provisions of sections 235, 20 240, and 241’’ and inserting ‘‘be eligible for adjust- 21 ment of status as an immigrant to the United 22 States’’; 23 (2) in subsection (a)(2), by striking ‘‘upon in- 24 spection and examination’’; and 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00508 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 509 •S 1258 IS (3) in subsection (c), by adding at the end the 1 following: ‘‘An application for adjustment under this 2 section may be filed up to 3 months before the date 3 on which the applicant would first otherwise be eligi- 4 ble for adjustment under this section.’’. 5 (b) PROCEDURES FOR ENSURING ACCURACY AND 6 VERIFIABILITY OF SWORN STATEMENTS TAKEN PURSU- 7 ANT TO EXPEDITED REMOVAL AUTHORITY.— 8 (1) IN GENERAL.—The Secretary shall establish 9 quality assurance procedures to ensure the accuracy 10 and verifiability of signed or sworn statements taken 11 by employees of the Department exercising expedited 12 removal authority under section 235(b) of the Immi- 13 gration and Nationality Act (8 U.S.C. 1225(b)). 14 (2) RECORDING OF INTERVIEWS.—Any sworn 15 or signed written statement taken of an alien as part 16 of the record of a proceeding under section 17 235(b)(1)(A) of the Immigration and Nationality 18 Act (8 U.S.C. 1225(b)(1)(A) shall be accompanied 19 by a recording of the interview which served as the 20 basis for that sworn statement. 21 (3) RECORDINGS.— 22 (A) IN GENERAL.—The recording of the 23 interview shall include the written statement, in 24 its entirety, being read back to the alien in a 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00509 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 510 •S 1258 IS language that the alien claims to understand, 1 and the alien affirming the accuracy of the 2 statement or making any corrections thereto. 3 (B) FORMAT.—The recording shall be 4 made in video, audio, or other equally reliable 5 format. 6 (4) EXEMPTION AUTHORITY.— 7 (A) IN GENERAL.—Subsections (b) and (c) 8 shall not apply to interviews that occur at de- 9 tention facilities exempted by the Secretary pur- 10 suant to this paragraph. 11 (B) UNDUE BURDENS OR COSTS.—The 12 Secretary or the Secretary’s designee may ex- 13 empt any detention facility based on a deter- 14 mination by the Secretary or the Secretary’s 15 designee that compliance with subsections (b) 16 and (c) at that facility would impair operations 17 or impose undue burdens or costs. 18 (C) ANNUAL REPORT.—The Secretary or 19 the Secretary’s designee shall report annually to 20 Congress on the detention facilities that have 21 been exempted pursuant to this subsection. 22 (D) PRIVATE CAUSE OF ACTION.—The ex- 23 ercise of the exemption authority shall not give 24 rise to a private cause of action. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00510 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 511 •S 1258 IS (c) INTERPRETERS.—The Secretary shall ensure that 1 a professional, fluent interpreter is used when— 2 (1) the interviewing officer does not speak a 3 language understood by the alien; and 4 (2) no other Federal, State or local government 5 employee is available who is able to interpret effec- 6 tively, accurately, and impartially. 7 (d) RECORDINGS IN IMMIGRATION PROCEEDINGS.— 8 Recordings of interviews of aliens described in section (b) 9 shall be included in the record of a proceeding and may 10 be considered as evidence in any further proceedings in- 11 volving the alien. 12 (e) STUDY ON THE EFFECT OF EXPEDITED RE- 13 MOVAL PROVISIONS, PRACTICES AND PROCEDURES ON 14 ASYLUM CLAIMS.— 15 (1) IN GENERAL.—The United States Commis- 16 sion on International Religious Freedom (referred to 17 in this subsection as the ‘‘Commission’’) is author- 18 ized to conduct a study to determine whether immi- 19 gration officers described in paragraph (2) are en- 20 gaging in conduct described in paragraph (3). 21 (2) IMMIGRATION OFFICERS DESCRIBED.—An 22 immigration officer described in this paragraph is an 23 immigration officer performing duties under section 24 235(b) of the Immigration and Nationality Act (8 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00511 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 512 •S 1258 IS U.S.C. 1225(b)) with respect to aliens who are ap- 1 prehended after entering the United States and who 2 may be eligible to apply for asylum under such sec- 3 tion or section 208 of such Act (8 U.S.C. 1158). 4 (3) CONDUCT DESCRIBED.—Conduct described 5 in this paragraph is— 6 (A) improperly encouraging an alien de- 7 scribed in paragraph (2) to withdraw or retract 8 claims for asylum; 9 (B) incorrectly failing to refer such an 10 alien for an interview by an asylum officer for 11 a determination of whether the alien has a cred- 12 ible fear of persecution (within the meaning of 13 section 235(b)(1)(B)(v) of the Immigration and 14 Nationality Act (8 U.S.C. 1225(b)(1)(B)(v))); 15 (C) incorrectly removing such an alien to a 16 country where the alien may be persecuted; or 17 (D) detaining such an alien improperly or 18 in inappropriate conditions. 19 (f) REPORT.—Not later than 2 years after the date 20 on which the Commission initiates the study conducted 21 under subsection (a), the Commission shall submit a re- 22 port containing the results of the study to— 23 (1) the Committee on Homeland Security and 24 Governmental Affairs of the Senate; 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00512 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 513 •S 1258 IS (2) the Committee on the Judiciary of the Sen- 1 ate; 2 (3) the Committee on Foreign Relations of the 3 Senate; 4 (4) the Committee on Homeland Security of the 5 House of Representatives; 6 (5) the Committee on the Judiciary of the 7 House of Representatives; and 8 (6) the Committee on Foreign Affairs of the 9 House of Representatives. 10 (g) STAFF.— 11 (1) FROM OTHER AGENCIES.—At the request of 12 the Commission, the Secretary, the Attorney Gen- 13 eral, and the Comptroller General of the United 14 States shall authorize staff designated by the Com- 15 mission who are recognized for their expertise and 16 knowledge of refugee and asylum issues to assist the 17 Commission in conducting the study under sub- 18 section (a). 19 (2) HIRING OF STAFF.—The Commission may 20 hire additional staff and consultants to conduct the 21 study under subsection (a). 22 (3) ACCESS TO PROCEEDINGS.— 23 (A) IN GENERAL.—Except as provided in 24 subparagraph (B), the Secretary and the Attor- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00513 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 514 •S 1258 IS ney General shall permit staff designated under 1 paragraph (1) or hired under paragraph (2) to 2 have unrestricted access to all stages of all pro- 3 ceedings conducted under section 235(b) of the 4 Immigration and Nationality Act (8 U.S.C. 5 1225(b)). 6 (B) EXCEPTIONS.—The Secretary and the 7 Attorney General shall not permit unrestricted 8 access pursuant to subparagraph (A) in any 9 case in which— 10 (i) an alien that is subject to a pro- 11 ceeding conducted under section 235(b) of 12 the Immigration and Nationality Act ob- 13 jects to such access; or 14 (ii) the Secretary or Attorney General 15 determines that the security of a particular 16 proceeding would be threatened by such 17 access. 18 SEC. 273. IMMIGRATION AND CUSTOMS ENFORCEMENT OM- 19 BUDSMAN. 20 (a) ESTABLISHMENT.—Subtitle D of title III of the 21 Homeland Security Act of 2002 (6 U.S.C. 251 et seq.) 22 is amended by adding at the end the following: 23 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00514 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 515 •S 1258 IS ‘‘SEC. 447. IMMIGRATION AND CUSTOMS ENFORCEMENT 1 OMBUDSMAN. 2 ‘‘(a) IN GENERAL.—There shall be in the Depart- 3 ment of Homeland Security the position of Immigration 4 and Customs Enforcement Ombudsman (referred to in 5 this section as the ‘Ombudsman’). 6 ‘‘(b) REQUIREMENTS.—The Ombudsman shall— 7 ‘‘(1) report directly to the Assistant Secretary 8 for Immigration and Customs Enforcement (referred 9 to in this section as the ‘Assistant Secretary’); and 10 ‘‘(2) have a background in immigration law. 11 ‘‘(c) FUNCTIONS.—The Ombudsman shall— 12 ‘‘(1) undertake regular and unannounced in- 13 spections of detention facilities and local offices of 14 United States Immigration and Customs Enforce- 15 ment to determine whether the facilities and offices 16 comply with relevant policies, procedures, standards, 17 laws, and regulations; 18 ‘‘(2) report all findings of compliance or non- 19 compliance of the facilities and local offices de- 20 scribed in paragraph (1) to the Secretary and the 21 Assistant Secretary; 22 ‘‘(3) develop procedures for detainees or their 23 representatives to submit confidential written com- 24 plaints directly to the Ombudsman; 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00515 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 516 •S 1258 IS ‘‘(4) investigate and resolve all complaints, in- 1 cluding confidential and anonymous complaints, re- 2 lated to decisions, recommendations, acts, or omis- 3 sions made by the Assistant Secretary or the Com- 4 missioner of U.S. Customs and Border Protection in 5 the course of custody and detention operations; 6 ‘‘(5) initiate investigations into allegations of 7 systemic problems at detention facilities; 8 ‘‘(6) conduct any review or audit relating to de- 9 tention, as directed by the Secretary or Assistant 10 Secretary; 11 ‘‘(7) refer matters, as appropriate, to the Office 12 of Inspector General of the Department of Justice, 13 the Office of Civil Rights and Civil Liberties of the 14 Department, or any other relevant office or agency; 15 ‘‘(8) propose changes in the policies or practices 16 of United States Immigration and Customs Enforce- 17 ment to improve the treatment of United States citi- 18 zens and residents, immigrants, detainees, and oth- 19 ers subject to immigration-related enforcement oper- 20 ations; 21 ‘‘(9) establish a public advisory group con- 22 sisting of nongovernmental organization representa- 23 tives and Federal, State, and local government offi- 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00516 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 517 •S 1258 IS cials with expertise in detention and vulnerable pop- 1 ulations to provide the Ombudsman with input on— 2 ‘‘(A) the priorities of the Ombudsman; and 3 ‘‘(B) current practices of United States 4 Immigration and Customs Enforcement; and 5 ‘‘(10) recommend to the Assistant Secretary 6 personnel action based on any finding of noncompli- 7 ance. 8 ‘‘(d) ANNUAL REPORT.— 9 ‘‘(1) OBJECTIVES.—Not later than June 30 of 10 each year, the Ombudsman shall prepare and submit 11 a report to the Committee on the Judiciary of the 12 Senate and the Committee on the Judiciary of the 13 House of Representatives on the objectives of the 14 Office of the Ombudsman for the next fiscal year. 15 ‘‘(2) CONTENTS.—Each report submitted under 16 paragraph (1) shall include— 17 ‘‘(A) full and substantive analysis of the 18 objectives of the Office of the Ombudsman; 19 ‘‘(B) statistical information regarding such 20 objectives; 21 ‘‘(C) a description of each detention facil- 22 ity found to be in noncompliance with the de- 23 tention standards of the Department of Home- 24 land Security or other applicable regulations; 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00517 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 518 •S 1258 IS ‘‘(D) a description of the actions taken by 1 the Department of Homeland Security to rem- 2 edy any findings of noncompliance or other 3 identified problems; 4 ‘‘(E) information regarding whether the 5 actions described in subparagraph (D) resulted 6 in compliance with detention standards; 7 ‘‘(F) a summary of the most pervasive and 8 serious problems encountered by individuals 9 subject to the enforcement operations of the 10 Department of Homeland Security, including a 11 description of the nature of such problems; and 12 ‘‘(G) such other information as the Om- 13 budsman may consider advisable.’’. 14 (b) AMENDMENT.—The table of contents in section 15 1(b) of the Homeland Security Act of 2002 (6 U.S.C. 101 16 et seq.) is amended by inserting after the item relating 17 to section 446 the following: 18 ‘‘Sec. 447.Immigration and Customs Enforcement Ombudsman.’’. SEC. 274. ELIMINATION OF TIME LIMITS ON ASYLUM APPLI- 19 CATIONS. 20 Section 208(a)(2) (8 U.S.C. 1158(a)(2)) is amend- 21 ed— 22 (1) in subparagraph (A), by striking ‘‘Attorney 23 General’’ each place it appears and inserting ‘‘Attor- 24 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00518 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 519 •S 1258 IS ney General or the Secretary of Homeland Secu- 1 rity’’; 2 (2) by striking subparagraph (B); 3 (3) by redesignating subparagraphs (C) and 4 (D) as subparagraphs (B) and (C), respectively; 5 (4) in subparagraph (B), as redesignated, by 6 striking ‘‘subparagraph (D)’’ and inserting ‘‘sub- 7 paragraphs (C) and (D)’’; and 8 (5) by striking subparagraph (C), as redesig- 9 nated, and inserting the following: 10 ‘‘(C) CHANGED CIRCUMSTANCES.—Not- 11 withstanding subparagraph (B), an application 12 for asylum of an alien may be considered if the 13 alien demonstrates, to the satisfaction of the 14 Attorney General or the Secretary of Homeland 15 Security, the existence of changed cir- 16 cumstances that materially affect the appli- 17 cant’s eligibility for asylum. 18 ‘‘(D) MOTION TO REOPEN DENIED ASYLUM 19 CLAIM.—Notwithstanding subparagraph (B) or 20 section 240(c)(7), an alien may file a motion to 21 reopen an asylum claim during the 2-year pe- 22 riod beginning on the date of the enactment of 23 this subparagraph if the alien— 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00519 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 520 •S 1258 IS ‘‘(i) was denied asylum based solely 1 upon a failure to meet the 1-year applica- 2 tion filing deadline in effect on the date on 3 which the application was filed; 4 ‘‘(ii) was granted withholding of re- 5 moval to the alien’s country of nationality 6 (or, if stateless, to the country of last ha- 7 bitual residence under section 241(b)(3)); 8 ‘‘(iii) has not obtained lawful perma- 9 nent residence in the United States pursu- 10 ant to any other provision of law; 11 ‘‘(iv) is not subject to the safe third 12 country exception in section 208(a)(2)(A) 13 or a bar to asylum under section 208(b)(2) 14 and should not be denied asylum as a mat- 15 ter of discretion; and 16 ‘‘(v) is physically present in the 17 United States when the motion is filed.’’; 18 and 19 (6) in subparagraph (E), by striking ‘‘subpara- 20 graphs (A) and (B)’’ and inserting ‘‘subparagraph 21 (A).’’ 22 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00520 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 521 •S 1258 IS SEC. 275. EFFICIENT ASYLUM DETERMINATION PROCESS 1 AND DETENTION OF ASYLUM SEEKERS. 2 Section 235(b)(1)(B) (8 U.S.C. 1225(b)(1)(B)) is 3 amended— 4 (1) in clause (ii), by striking ‘‘shall be detained 5 for further consideration of the application for asy- 6 lum’’ and inserting ‘‘may, in the Secretary’s discre- 7 tion, be detained for further consideration of the ap- 8 plication for asylum by an asylum officer designated 9 by the Director of United States Citizenship and Im- 10 migration Services. The asylum officer, after con- 11 ducting a nonadversarial asylum interview, may 12 grant asylum to the alien under section 208 or refer 13 the case to a designee of the Attorney General, for 14 a de novo asylum determination, for relief under the 15 Convention Against Torture and Other Cruel, Inhu- 16 man or Degrading Treatment or Punishment, done 17 at New York December 10, 1984, or for withholding 18 of removal under section 241(b)(3).’’; and 19 (2) in clause (iii)(IV)— 20 (A) by amending the subclause heading to 21 read as follows: 22 ‘‘(IV) DETENTION.—’’; and 23 (B) by striking ‘‘shall’’ and inserting 24 ‘‘may, in the Secretary’s discretion,’’. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00521 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 522 •S 1258 IS SEC. 276. PROTECTION OF STATELESS PERSONS IN THE 1 UNITED STATES. 2 (a) IN GENERAL.—Chapter 1 of title II (8 U.S.C. 3 1151 et seq.) is amended by adding at the end the fol- 4 lowing: 5 ‘‘SEC. 210A. PROTECTION OF STATELESS PERSONS IN THE 6 UNITED STATES. 7 ‘‘(a) DEFINED TERM.— 8 ‘‘(1) IN GENERAL.—In this section, the term 9 ‘de jure stateless person’ means an individual who is 10 not considered a national under the laws of any 11 country. Individuals who have lost their nationality 12 as a result of their voluntary action or knowing inac- 13 tion after arrival in the United States shall not be 14 considered de jure stateless persons. 15 ‘‘(2) DESIGNATION OF SPECIFIC DE JURE 16 GROUPS.—The Secretary of Homeland Security, in 17 consultation with the Secretary of State, may, in the 18 discretion of the Secretary, designate specific groups 19 of individuals who are considered de jure stateless 20 persons, for purposes of this section. 21 ‘‘(b) MECHANISMS FOR REGULARIZING THE STATUS 22 OF STATELESS PERSONS.— 23 ‘‘(1) RELIEF FOR INDIVIDUALS DETERMINED 24 TO BE DE JURE STATELESS PERSONS.—The Sec- 25 retary of Homeland Security or the Attorney Gen- 26 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00522 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 523 •S 1258 IS eral may, in his or her discretion, provide conditional 1 lawful status to an alien who is otherwise inadmis- 2 sible or deportable from the United States if the 3 alien— 4 ‘‘(A) is a de jure stateless person; 5 ‘‘(B) applies for such relief; 6 ‘‘(C) is not inadmissible under paragraph 7 (2) or (3) of section 212(a); and 8 ‘‘(D) is not described in section 9 241(b)(3)(B)(i). 10 ‘‘(2) WAIVERS.—The provisions of paragraphs 11 (4), (5), (6)(A), (7)(A), and (9) of section 212(a) 12 shall not be applicable to any alien seeking relief 13 under paragraph (1), and the Secretary of Home- 14 land Security or the Attorney General may waive 15 any other provision of such section (other than para- 16 graph (2)(C) or subparagraph (A), (B), (C), or (E) 17 of paragraph (3)) with respect to such an alien for 18 humanitarian purposes, to assure family unity, or 19 when it is otherwise in the public interest. 20 ‘‘(3) SUBMISSION OF PASSPORT OR TRAVEL 21 DOCUMENT.—Any alien who seeks benefits under 22 this section must submit to the Secretary or the At- 23 torney General— 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00523 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 524 •S 1258 IS ‘‘(A) any passport or travel document 1 issued at any time to the alien (whether or not 2 the passport or document has expired or been 3 cancelled, rescinded, or revoked); or 4 ‘‘(B) an affidavit sworn under penalty of 5 perjury stating that the alien has never been 6 issued a passport or travel document, or identi- 7 fying with particularity any such passport or 8 travel document and explaining why the alien 9 cannot submit it. 10 ‘‘(4) WORK AUTHORIZATION.—The Secretary 11 may— 12 ‘‘(A) authorize an alien who has applied 13 for relief under paragraph (1) to engage in em- 14 ployment in the United States while such appli- 15 cation is being considered; and 16 ‘‘(B) provide such applicant with an em- 17 ployment authorized endorsement or other ap- 18 propriate document signifying authorization of 19 employment. 20 ‘‘(5) TREATMENT OF SPOUSES AND CHIL- 21 DREN.—The spouse or child of an alien who has 22 been granted conditional lawful status under para- 23 graph (1) shall, if not otherwise eligible for admis- 24 sion under paragraph (1), be granted conditional 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00524 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 525 •S 1258 IS lawful status under this section if accompanying, or 1 following to join, such alien, provided that the 2 spouse or child is admissible (except as otherwise 3 provided in paragraph (2)), and provided further 4 that the qualifying relationship to the principal bene- 5 ficiary existed on the date on which such alien was 6 granted conditional lawful status. 7 ‘‘(c) ADJUSTMENT OF STATUS.— 8 ‘‘(1) INSPECTION AND EXAMINATION.—At the 9 end of the 5-year period beginning on the date on 10 which an alien has been granted conditional lawful 11 status under subsection (b), the alien may apply for 12 lawful permanent residence in the United States if— 13 ‘‘(A) the alien has been physically present 14 in the United States for at least 5 years; 15 ‘‘(B) the alien’s conditional lawful status 16 has not been terminated by the Secretary of 17 Homeland Security or the Attorney General, 18 pursuant to such regulations as the Secretary 19 or the Attorney General may prescribe; and 20 ‘‘(C) the alien has not otherwise acquired 21 permanent resident status. 22 ‘‘(2) REQUIREMENTS FOR ADJUSTMENT.—The 23 Secretary or the Attorney General, under such regu- 24 lations as the Secretary or the Attorney General 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00525 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 526 •S 1258 IS may prescribe, may adjust the status of an alien 1 granted conditional lawful status under subsection 2 (b) to that of an alien lawfully admitted for perma- 3 nent residence if such alien— 4 ‘‘(A) is a de jure stateless person; 5 ‘‘(B) properly applies for such adjustment 6 of status; 7 ‘‘(C) has been physically present in the 8 United States for at least 5 years after being 9 granted conditional lawful status under sub- 10 section (b); 11 ‘‘(D) is not firmly resettled in any foreign 12 country; and 13 ‘‘(E) is admissible (except as otherwise 14 provided under subsection (b)(2)) as an immi- 15 grant under this chapter at the time of exam- 16 ination of such alien for adjustment of status. 17 ‘‘(3) RECORD.—Upon approval of an applica- 18 tion under this subsection, the Secretary or the At- 19 torney General shall establish a record of the alien’s 20 admission for lawful permanent residence as of the 21 date that is 5 years before the date of such approval. 22 ‘‘(d) PROVING THE CLAIM.—In determining an 23 alien’s eligibility for lawful conditional status or adjust- 24 ment of status under this subsection, the Secretary or the 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00526 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 527 •S 1258 IS Attorney General shall consider any credible evidence rel- 1 evant to the application. The determination of what evi- 2 dence is credible and the weight to be given that evidence 3 shall be within the sole discretion of the Secretary or the 4 Attorney General. 5 ‘‘(e) REVIEW.— 6 ‘‘(1) ADMINISTRATIVE REVIEW.—No appeal 7 shall lie from the denial of an application by the 8 Secretary, but such denial will be without prejudice 9 to the alien’s right to renew the application in pro- 10 ceedings under section 240. 11 ‘‘(2) MOTIONS TO REOPEN.—Notwithstanding 12 any limitation imposed by law on motions to reopen 13 removal, deportation, or exclusion proceedings, any 14 individual who is eligible for relief under this section 15 may file 1 motion to reopen removal or deportation 16 proceedings in order to apply for relief under this 17 section, except that any such motion shall be filed 18 not later than the later of— 19 ‘‘(A) 2 years after the date of the enact- 20 ment of this section; or 21 ‘‘(B) 90 days after the date of entry of a 22 final administrative order of removal, deporta- 23 tion, or exclusion. 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00527 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 528 •S 1258 IS ‘‘(f) LIMITATION.—The provisions of this section 1 shall apply only to aliens present in the United States. 2 Nothing in this section may be construed to authorize or 3 require— 4 ‘‘(1) the admission of any alien to the United 5 States; 6 ‘‘(2) the parole of any alien into the United 7 States; or 8 ‘‘(3) the grant of any motion to reopen or re- 9 consider filed by an alien after departure or removal 10 from the United States.’’. 11 (b) JUDICIAL REVIEW.—Section 242(a)(2)(B)(ii) of 12 the Immigration and Nationality Act (8 U.S.C. 13 1252(a)(2)(B)(ii)) is amended by inserting ‘‘or 210A’’ 14 after ‘‘208(a)’’. 15 (c) CLERICAL AMENDMENT.—The table of contents 16 for the Immigration and Nationality Act is amended by 17 inserting after the item relating to section 210 the fol- 18 lowing: 19 ‘‘210A. Protection of stateless persons in the United States.’’. SEC. 277. AUTHORITY TO DESIGNATE CERTAIN GROUPS OF 20 REFUGEES FOR CONSIDERATION. 21 (a) IN GENERAL.—Section 207(c)(1) (8 U.S.C. 22 1157(c)(1)) is amended— 23 (1) by inserting ‘‘(A)’’ before ‘‘Subject to the 24 numerical limitations’’; and 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00528 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 529 •S 1258 IS (2) by adding at the end the following: 1 ‘‘(B)(i) The President, upon a recommendation of the 2 Secretary of State made in consultation with the Secretary 3 of Homeland Security, and after appropriate consultation, 4 may designate specifically defined groups of aliens whose 5 resettlement in the United States is justified by humani- 6 tarian concerns or is otherwise in the national interest and 7 who share common characteristics that identify them as 8 targets of persecution on account of race, religion, nation- 9 ality, membership in a particular social group, or political 10 opinion or of other serious harm, or who, having been 11 identified as targets of persecution on account of race, reli- 12 gion, nationality, membership in a particular social group, 13 or political opinion or of other serious harm, share a com- 14 mon need for resettlement due to a specific vulnerability. 15 ‘‘(ii) An alien who establishes membership in a group 16 designated under clause (i) to the satisfaction of the Sec- 17 retary of Homeland Security shall be considered a refugee 18 for purposes of admission as a refugee under this section, 19 unless the Secretary determines that such alien ordered, 20 incited, assisted or otherwise participated in the persecu- 21 tion of any person on account of race, religion, nationality, 22 membership in a particular social group, or political opin- 23 ion. 24 ‘‘(iii) A designation under clause (i)— 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00529 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 530 •S 1258 IS ‘‘(I) may be revoked by the President at any 1 time after notification to Congress; 2 ‘‘(II) if not revoked, shall expire at the end of 3 each fiscal year; and 4 ‘‘(III) may be renewed by the President after 5 appropriate consultation. 6 ‘‘(iv) Categories of aliens established under section 7 599D of title V of Public Law 101–167 (8 U.S.C. 1157 8 note) shall— 9 ‘‘(I) be designated under clause (i) until the end 10 of the first fiscal year commencing after the date of 11 the enactment of this subparagraph; and 12 ‘‘(II) be eligible for designation thereafter, at 13 the discretion of the President. 14 ‘‘(v) An alien’s admission under this subparagraph 15 shall count against the refugee admissions goal under sub- 16 section (a). 17 ‘‘(vi) A designation under clause (i) shall not influ- 18 ence decisions to grant, to any alien, asylum under section 19 208, protection under section 241(b)(3), or protection 20 under Article 3 of the Convention Against Torture and 21 Other Cruel, Inhuman or Degrading Treatment or Pun- 22 ishment, done at New York December 10, 1984.’’. 23 (b) WRITTEN REASONS FOR DENIALS OF REFUGEE 24 STATUS.—Each decision to deny an application for ref- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00530 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 531 •S 1258 IS ugee status of an alien who is within a category estab- 1 lished under this section shall be in writing and shall state, 2 to the maximum extent feasible, the reason for the denial. 3 (c) EFFECTIVE DATE.—The amendments made by 4 subsection (a) shall take effect on the first day of the first 5 fiscal year that begins after the date of the enactment of 6 this Act. 7 SEC. 278. ADMISSION OF REFUGEES IN THE ABSENCE OF 8 THE ANNUAL PRESIDENTIAL DETERMINA- 9 TION. 10 Section 207(a) (8 U.S.C. 1157(a)) is amended— 11 (1) by striking paragraph (1); 12 (2) by redesignating paragraphs (2), (3), (4), 13 and (5) as paragraphs (1), (2), (3), and (4), respec- 14 tively; 15 (3) in paragraph (1), as redesignated— 16 (A) by striking ‘‘after fiscal year 1982’’; 17 and 18 (B) by adding at the end the following: ‘‘If 19 the President does not issue a determination 20 under this paragraph before the beginning of a 21 fiscal year, the number of refugees that may be 22 admitted under this section in each quarter be- 23 fore the issuance of such determination shall be 24 25 percent of the number of refugees admissible 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00531 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 532 •S 1258 IS under this section during the previous fiscal 1 year.’’; and 2 (4) in paragraph (3), as redesignated, by strik- 3 ing ‘‘(beginning with fiscal year 1992)’’. 4 Subtitle C—Reforming America’s 5 Legal Immigration System 6 PART I—STANDING COMMISSION ON FOREIGN 7 WORKERS, LABOR MARKETS, AND THE NA- 8 TIONAL INTEREST 9 SEC. 300. STANDING COMMISSION ON FOREIGN WORKERS, 10 LABOR MARKETS, AND THE NATIONAL INTER- 11 EST. 12 (a) ESTABLISHMENT OF COMMISSION.— 13 (1) IN GENERAL.—There is established an inde- 14 pendent Federal agency within the executive branch 15 to be known as the Standing Commission on For- 16 eign Workers, Labor Markets, and the National In- 17 terest (referred to in this section as the ‘‘Commis- 18 sion’’). 19 (2) PURPOSES.—The purposes of the Commis- 20 sion are— 21 (A) to establish employment-based immi- 22 gration policies that promote America’s eco- 23 nomic growth and competitiveness while mini- 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00532 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 533 •S 1258 IS mizing job displacement, wage depression and 1 unauthorized employment in the United States; 2 (B) to create and implement a policy-fo- 3 cused research agenda on the economic impacts 4 of immigration at the national, regional, State, 5 industry and occupation levels; 6 (C) to collect and analyze information 7 about employment-based immigration and the 8 labor market and share the data and analysis 9 with lawmakers, researchers and the American 10 public; 11 (D) to recommend to the Congress and the 12 President on a regular basis an evidence-based 13 methodology for determining the level of em- 14 ployment-based immigration; 15 (E) to recommend to Congress and the 16 President the numeric levels and characteristics 17 of workers to be admitted in various employ- 18 ment-based visa categories; 19 (F) to work with the Department of Labor 20 to conduct pilot programs to examine ways to 21 improve the operation of foreign worker pro- 22 grams; and 23 (G) to collect and analyze information 24 about the economic, labor, security, and foreign 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00533 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 534 •S 1258 IS policy impacts of our Nation’s immigration poli- 1 cies. 2 (3) MEMBERSHIP.—The Commission shall be 3 composed of— 4 (A) 7 voting members— 5 (i) who shall be appointed by the 6 President, with the advice and consent of 7 the Senate, not later than 6 months after 8 the date of the enactment of this Act; 9 (ii) who shall serve for 5-year stag- 10 gered terms; 11 (iii) 1 of whom the President shall ap- 12 point as Chair of the Commission to serve 13 a 6-year term, which can be extended for 14 1 additional 3-year term; 15 (iv) who shall have expertise in eco- 16 nomics, demography, sociology, labor, busi- 17 ness, civil rights, immigration, or other 18 pertinent qualifications or experience; 19 (v) who may not be an employee of 20 the Federal Government or of any State or 21 local government; and 22 (vi) not more than 4 of whom may be 23 members of the same political party; and 24 (B) 8 ex-officio members, including— 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00534 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 535 •S 1258 IS (i) the Secretary; 1 (ii) the Secretary of State; 2 (iii) the Attorney General; 3 (iv) the Secretary of Labor; 4 (v) the Secretary of Commerce; 5 (vi) the Secretary of Health and 6 Human Services; 7 (vii) the Secretary of Agriculture; and 8 (viii) the Commissioner of Social Se- 9 curity. 10 (4) VACANCIES.—Any vacancy in the Commis- 11 sion shall be filled in the same manner as the origi- 12 nal appointment. 13 (5) MEETINGS.— 14 (A) INITIAL MEETING.—The Commission 15 shall meet and begin carrying out the duties de- 16 scribed in subsection (b) as soon as practicable. 17 (B) SUBSEQUENT MEETINGS.—After its 18 initial meeting, the Commission shall meet upon 19 the call of the Chair or a majority of its mem- 20 bers. 21 (C) QUORUM.—Four voting members of 22 the Commission shall constitute a quorum. 23 (b) DUTIES OF THE COMMISSION.—The Commission 24 shall collect, analyze, and publish data regarding— 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00535 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 536 •S 1258 IS (1) the historic migration patterns to and from 1 the United States and demographic trends, including 2 the birth rate, education levels, and age profiles of 3 the immigrant and native population of the United 4 States; 5 (2) the national, regional, State, and local im- 6 pacts of employment-based immigration— 7 (A) within industries and business sectors; 8 (B) on wages, labor standards, occupa- 9 tions, and employment levels; 10 (C) on small business; 11 (D) on employment and unemployment lev- 12 els; 13 (E) on economic growth, productivity, and 14 competitiveness; 15 (F) on national and border security; and 16 (G) on local communities; 17 (3) the development and implementation of the 18 new worker program to admit H–2C nonimmigrants 19 (referred to in this section as the ‘‘Program’’), in- 20 cluding— 21 (A) the criteria for the admission of work- 22 ers under the Program; and 23 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00536 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 537 •S 1258 IS (B) the formula and methodologies for de- 1 termining the annual numerical limitations of 2 the Program; 3 (4) the current and anticipated needs of em- 4 ployers for skilled and unskilled labor; 5 (5) the national interest; 6 (6) the current and anticipated supply of skilled 7 and unskilled labor; 8 (7) the impact of employment-based immigra- 9 tion on the economic growth, competitiveness, labor 10 standards, labor conditions, and wages; 11 (8) the extent and impact of unauthorized em- 12 ployment in the United States; 13 (9) the factors that determine the economic 14 success of immigrants to the United States; 15 (10) specific aspects of the Nation’s immigra- 16 tion policies and programs that Congress has re- 17 quested the Commission to examine or analyze; and 18 (11) any other matters regarding the impact of 19 employment-based immigration that the Commission 20 considers appropriate. 21 (c) ANNUAL REPORTS.— 22 (1) PROGRAM EVALUATION.—Not later than 1 23 year after the date of the enactment of this Act, and 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00537 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 538 •S 1258 IS annually thereafter, the Commission shall submit a 1 report to the President and Congress that— 2 (A) assesses the economic, labor, security, 3 and foreign policy impacts of the Nation’s im- 4 migration policies; 5 (B) evaluates the Program and defines a 6 formula and methodologies for measuring the 7 need for nonimmigrants in States, industries, 8 and occupations; 9 (C) recommends adjustments, based on the 10 established methodologies, to the Program’s nu- 11 meric allocations for the subsequent fiscal year; 12 and 13 (D) reviews the issuance and allocations of 14 employment-based immigrant and non- 15 immigrant visa categories. 16 (2) EFFECT ON EMPLOYMENT LEVELS.—Not 17 later than February 1 of each year, the Commission 18 shall submit a report to Congress that contains— 19 (A) the Commission’s recommendations on 20 the increase or decrease in the number of em- 21 ployment-based immigrant visas to be made 22 available for temporary or permanent employ- 23 ment under the Immigration and Nationality 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00538 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 539 •S 1258 IS Act and a statement of the reasons for such 1 recommendations; and 2 (B) the Commission’s recommendations on 3 how many immigrant visas from the discre- 4 tionary national interest pool described in sec- 5 tion 301(e) should be added to the subsequent 6 fiscal year’s annual immigrant visa allocations 7 to comport with the increases recommended in 8 subparagraph (A) and to which employment 9 preference categories such visas should be 10 added. 11 (3) EFFECT OF CONGRESSIONAL INACTION.—If 12 Congress does not enact a law to approve or dis- 13 approve the Commission’s recommendations under 14 paragraph (2) not later than 90 days after receiving 15 a report under such paragraph, the number of em- 16 ployment-based immigrant visas shall remain at the 17 level authorized for the previous fiscal year. 18 (d) NATIONAL INTEREST DEFINED.—For purposes 19 of determining whether immigrant visas should be allo- 20 cated from the discretionary national interest pool in a 21 given fiscal year, the term ‘‘national interest’’ shall be 22 broadly defined and shall take into consideration— 23 (1) national and regional unemployment rates; 24 (2) unemployment rates by industry and sector; 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00539 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 540 •S 1258 IS (3) national and regional demographic and in- 1 dustry projections; 2 (4) wage and labor impact; 3 (5) education, workforce development, and so- 4 cial support considerations; 5 (6) immigrant visa backlogs and length of fa- 6 milial separation; 7 (7) national security and border security; 8 (8) community impact assessments; and 9 (9) competitiveness and economic growth. 10 (e) POWERS OF THE COMMISSION.—The Commis- 11 sion, by vote of a majority of the members present and 12 voting, shall have the power to— 13 (1) establish general policies and promulgate 14 such rules and regulations for the Commission as 15 are necessary to carry out the purposes of this sec- 16 tion; 17 (2) appoint and fix the salary and duties of the 18 Staff Director of the Commission, who shall serve at 19 the discretion of the Commission and who shall be 20 compensated at a rate not to exceed the highest rate 21 now or hereafter prescribed for Level 6 of the Senior 22 Executive Service Schedule (5 U.S.C. 5382), and 23 such other personnel as may be necessary to enable 24 the Commission to carry out its functions; 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00540 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 541 •S 1258 IS (3) deny, revise, or ratify any request for reg- 1 ular, supplemental, or deficiency appropriations 2 prior to any submission of such request to the Office 3 of Management and Budget by the Chair; 4 (4) utilize, with their consent, the services, 5 equipment, personnel, information, and facilities of 6 other Federal, State, local, and private agencies and 7 instrumentalities with or without reimbursement for 8 such utilization; 9 (5) without regard to section 3324 of title 31, 10 United States Code, enter into and perform such 11 contracts, leases, cooperative agreements, and other 12 transactions as may be necessary in the conduct of 13 the functions of the Commission, with any public 14 agency, or with any person, firm, association, cor- 15 poration, educational institution, or nonprofit orga- 16 nization; 17 (6) accept and employ, in carrying out the pro- 18 visions of this title, voluntary and uncompensated 19 services, notwithstanding the provisions of section 20 1342 of title 31, United States Code, however, indi- 21 viduals providing such services shall not be consid- 22 ered Federal employees except for purposes of chap- 23 ter 81 of title 5, United States Code, with respect 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00541 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 542 •S 1258 IS to job-incurred disability and title 28, United States 1 Code, with respect to tort claims; 2 (7) request such information, data, and reports 3 from any Federal agency as the Commission may 4 from time to time require and as may be produced 5 consistent with other law; 6 (8) arrange with the head of any other Federal 7 agency for the performance by such agency of any 8 function of the Commission, with or without reim- 9 bursement; 10 (9) establish a research and development pro- 11 gram within the Commission for the purpose of un- 12 derstanding and documenting the effects of immi- 13 gration and the admission of foreign workers on the 14 labor market and national competitiveness; 15 (10) collect systematically the data obtained 16 from studies, research, and the empirical experience 17 of public and private agencies concerning the need 18 for and effects of immigration; 19 (11) interview and confer with State and local 20 officials, representatives of labor and industry, and 21 experts in academia to obtain information about the 22 need for or benefit of additional immigrant or non- 23 immigrant workers; 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00542 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 543 •S 1258 IS (12) make recommendations to Congress con- 1 cerning the numeric limitations of the immigrant 2 and nonimmigrant employment-based visa categories 3 and recommend modifications or the enactment of 4 statutes relating to matters that the Commission 5 finds to be necessary and advisable to carry out an 6 effective immigration policy; 7 (13) hold hearings and call witnesses to assist 8 the Commission in the exercise of its powers or du- 9 ties; 10 (14) retain and, in its discretion pay reasonable 11 attorneys’ fees out if its appropriated funds to, pri- 12 vate attorneys who— 13 (A) shall provide legal advice to the Com- 14 mission in the conduct of its work, or to appear 15 for or represent the Commission in any case in 16 which the Commission is authorized by law to 17 represent itself, or in which the Commission is 18 representing itself with the consent of the De- 19 partment of Justice; and 20 (B) when serving as officers or employees 21 of the United States, shall be considered special 22 Government employees (as defined in section 23 202(a) of title 18, United States Code); 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00543 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 544 •S 1258 IS (15) grant incentive awards to its employees 1 pursuant to chapter 45 of title 5, United States 2 Code; 3 (16) create occupational, industry, and regional 4 advisory committees; and 5 (17) perform such other functions as may be 6 necessary to carry out the purposes of this section, 7 which may be delegated to any member or des- 8 ignated person, as appropriate. 9 (f) INFORMATION AND ASSISTANCE FROM FEDERAL 10 AGENCIES.— 11 (1) INFORMATION.—The head of any Federal 12 department or agency that receives a request from 13 the Commission for information, including sugges- 14 tions, estimates, and statistics, as the Commission 15 considers necessary to carry out the provisions of 16 this section, shall furnish such information to the 17 Commission, to the extent allowed by law. 18 (2) ASSISTANCE.— 19 (A) GENERAL SERVICES ADMINISTRA- 20 TION.—The Administrator of General Services 21 shall, on a reimbursable basis, provide the Com- 22 mission with administrative support and other 23 services for the performance of the Commis- 24 sion’s functions. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00544 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 545 •S 1258 IS (B) OTHER FEDERAL AGENCIES.—The de- 1 partments and agencies of the United States 2 may provide the Commission with such services, 3 funds, facilities, staff, and other support serv- 4 ices as the heads of such departments and 5 agencies determine advisable and authorized by 6 law. 7 (g) PERSONNEL MATTERS.— 8 (1) STAFF.— 9 (A) APPOINTMENT AND COMPENSATION.— 10 The Chair, in accordance with rules agreed 11 upon by the Commission, may appoint and fix 12 the compensation of a staff director and such 13 other personnel as may be necessary to enable 14 the Commission to carry out its functions. 15 (B) FEDERAL EMPLOYEES.— 16 (i) IN GENERAL.—Except as provided 17 under clause (ii), the executive director and 18 any personnel of the Commission who are 19 employees shall be considered to be em- 20 ployees under section 2105 of title 5, 21 United States Code, for purposes of chap- 22 ters 63, 81, 83, 84, 85, 87, 89, and 90 of 23 such title. 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00545 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 546 •S 1258 IS (ii) COMMISSION MEMBERS.—Clause 1 (i) shall not apply to members of the Com- 2 mission. 3 (2) DETAILEES.—Any employee of the Federal 4 Government may be detailed to the Commission 5 without reimbursement from the Commission. Such 6 detailee shall retain the rights, status, and privileges 7 of his or her regular employment without interrup- 8 tion. 9 (3) CONSULTANT SERVICES.—The Commission 10 may procure the services of experts and consultants 11 in accordance with section 3109 of title 5, United 12 States Code, at rates not to exceed the daily rate 13 paid a person occupying a position at level IV of the 14 Executive Schedule under section 5315 of such title 15 5. 16 (h) COMPENSATION AND TRAVEL EXPENSES.— 17 (1) COMPENSATION.—Each voting member of 18 the Commission may be compensated at a rate not 19 to exceed the daily equivalent of the annual rate of 20 basic pay in effect for a position at level IV of the 21 Executive Schedule under section 5315 of title 5, 22 United States Code, for each day during which that 23 member is engaged in the actual performance of the 24 duties of the Commission. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00546 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 547 •S 1258 IS (2) TRAVEL EXPENSES.—Members of the Com- 1 mission shall be allowed travel expenses, including 2 per diem in lieu of subsistence, at rates authorized 3 for employees of agencies under section 5703(b) of 4 title 5, United States Code, while away from their 5 homes or regular places of business in the perform- 6 ance of services for the Commission. 7 PART II—FAMILY AND EMPLOYMENT VISA 8 REFORMS 9 CHAPTER 1—FAMILY AND EMPLOYMENT- 10 BASED IMMIGRANT VISAS 11 SEC. 301. RECAPTURE OF IMMIGRANT VISAS LOST TO BU- 12 REAUCRATIC DELAY. 13 (a) WORLDWIDE LEVEL OF FAMILY-SPONSORED IM- 14 MIGRANTS.—Section 201(c) (8 U.S.C. 1151(c)) is amend- 15 ed to read as follows: 16 ‘‘(c) WORLDWIDE LEVEL OF FAMILY-SPONSORED 17 IMMIGRANTS.— 18 ‘‘(1) IN GENERAL.—Subject to subparagraph 19 (B), the worldwide level of family-sponsored immi- 20 grants under this subsection for a fiscal year is 21 equal to the sum of— 22 ‘‘(A) 480,000; and 23 ‘‘(B) the sum of— 24 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00547 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 548 •S 1258 IS ‘‘(i) the number computed under 1 paragraph (2); and 2 ‘‘(ii) the number computed under 3 paragraph (3). 4 ‘‘(2) UNUSED VISA NUMBERS FROM PREVIOUS 5 FISCAL YEAR.—The number computed under this 6 paragraph for a fiscal year is the difference, if any, 7 between— 8 ‘‘(A) the worldwide level of family-spon- 9 sored immigrant visas established for the pre- 10 vious fiscal year; and 11 ‘‘(B) the number of visas issued under sec- 12 tion 203(a), subject to this subsection, during 13 the previous fiscal year. 14 ‘‘(3) UNUSED VISA NUMBERS FROM FISCAL 15 YEARS 1992 THROUGH 2007.—The number computed 16 under this paragraph is— 17 ‘‘(A) the difference, if any, between— 18 ‘‘(i) the sum of the worldwide levels of 19 family-sponsored immigrant visas estab- 20 lished for fiscal years 1992 through 2007; 21 and 22 ‘‘(ii) the number of visas issued under 23 section 203(a), subject to this subsection, 24 during such fiscal years; and 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00548 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 549 •S 1258 IS ‘‘(B) the number of unused visas from fis- 1 cal years 1992 through 2007 that were issued 2 after fiscal year 2007 under section 203(a), 3 subject to this subsection.’’. 4 (b) WORLDWIDE LEVEL OF EMPLOYMENT-BASED 5 IMMIGRANTS.—Section 201(d) (8 U.S.C. 1151(d)) is 6 amended to read as follows: 7 ‘‘(d) WORLDWIDE LEVEL OF EMPLOYMENT-BASED 8 IMMIGRANTS.— 9 ‘‘(1) IN GENERAL.—The worldwide level of em- 10 ployment-based immigrants under this subsection for 11 a fiscal year is equal to the sum of— 12 ‘‘(A) 140,000; 13 ‘‘(B) the number computed under para- 14 graph (2); and 15 ‘‘(C) the number computed under para- 16 graph (3). 17 ‘‘(2) UNUSED VISA NUMBERS FROM PREVIOUS 18 FISCAL YEAR.—The number computed under this 19 paragraph for a fiscal year is the difference, if any, 20 between— 21 ‘‘(A) the worldwide level of employment- 22 based immigrant visas established for the pre- 23 vious fiscal year; and 24 VerDate Mar 15 2010 06:32 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00549 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 550 •S 1258 IS ‘‘(B) the number of visas issued under sec- 1 tion 203(b), subject to this subsection, during 2 the previous fiscal year. 3 ‘‘(3) UNUSED VISA NUMBERS FROM FISCAL 4 YEARS 1992 THROUGH 2007.—The number computed 5 under this paragraph is the difference, if any, be- 6 tween— 7 ‘‘(A) the difference, if any, between— 8 ‘‘(i) the sum of the worldwide levels of 9 employment-based immigrant visas estab- 10 lished for each of fiscal years 1992 11 through 2007; and 12 ‘‘(ii) the number of visas issued under 13 section 203(b), subject to this subsection, 14 during such fiscal years; and 15 ‘‘(B) the number of unused visas from fis- 16 cal years 1992 through 2007 that were issued 17 after fiscal year 2007 under section 203(b), 18 subject to this subsection.’’. 19 (c) ALIENS NOT SUBJECT TO DIRECT NUMERICAL 20 LIMITATIONS.—Section 201(b)(1) (8 U.S.C. 1151(b)(1)) 21 is amended by adding at the end the following: 22 ‘‘(F) A derivative beneficiary as described 23 in section 203(d) of an employment-based im- 24 migrant under section 203(b). 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00550 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 551 •S 1258 IS ‘‘(G) Aliens with extraordinary ability in 1 the sciences, arts, education, business, or ath- 2 letics which has been demonstrated by sus- 3 tained national or international acclaim, if: 4 ‘‘(i) the achievements of such alien 5 have been recognized in the field through 6 extensive documentation; 7 ‘‘(ii) such alien seeks to enter the 8 United States to continue work in the area 9 of extraordinary ability; and 10 ‘‘(iii) the entry of such alien into the 11 United States will substantially benefit 12 prospectively the United States. 13 ‘‘(H) Aliens who have earned an advanced 14 degree in the sciences (not including the social 15 sciences), technology, engineering, or mathe- 16 matics from a United States institution of high- 17 er education (as defined in section 1001(a) of 18 title 20) and have been working in a field re- 19 lated to their degree subject in the United 20 States under a nonimmigrant visa during the 2- 21 year period preceding their application for an 22 immigrant visa under section 203(b). 23 ‘‘(I) Alien physicians who have completed 24 service requirements of a waiver or exemption 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00551 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 552 •S 1258 IS requested by an interested State agency or by 1 an interested Federal agency under section 2 214(l), including those alien physicians who 3 completed such service before the date of the 4 enactment of this subparagraph. 5 ‘‘(J) Aliens who are eligible for adjustment 6 of status under section 245(n)(1) as an alien 7 who described in section 101(a)(15)(H)(ii)(c).’’ 8 (d) REQUIREMENT TO SATISFY ELIGIBILITY RE- 9 QUIREMENTS.—Section 203 (8 U.S.C. 1153) is amended 10 by adding at the end the following new subsection: 11 ‘‘(i) REQUIREMENT TO SATISFY ELIGIBILITY RE- 12 QUIREMENTS.—Notwithstanding the inapplicability of the 13 worldwide levels specified in sections 201(c) and (d) to 14 aliens described in section 201(b)(1), aliens described in 15 subparagraph (H) or (I) of section 201(b)(1) shall satisfy 16 the requirements for eligibility for an immigrant visa 17 under 1 of the preference categories under subsection 18 (b).’’. 19 (e) DISCRETIONARY NATIONAL INTEREST POOL.— 20 The discretionary national interest pool is the number that 21 is the average of the difference between— 22 (1) the number of legal immigrant visas issued 23 annually from fiscal year 1995 through fiscal year 24 2010; and 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00552 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 553 •S 1258 IS (2) the number of legal immigrant visas issued 1 annually plus unauthorized entries estimated annu- 2 ally by the Secretary of Homeland Security from fis- 3 cal year 1995 through fiscal year 2010. 4 (f) APPLICABILITY.—The amendments made by sub- 5 section (c) shall apply to any immigrant petition or immi- 6 grant visa application— 7 (1) pending on the date of the enactment of 8 this Act; or 9 (2) filed on or after such date of enactment. 10 (g) ELIMINATION OF THE EB–1A PREFERENCE CAT- 11 EGORY.—Section 203(b)(1) (8 U.S.C. 1153(b)(1)) is 12 amended— 13 (1) by striking subparagraph (A); and 14 (2) by redesignating subparagraphs (B) and 15 (C) as subparagraphs (A) and (B), respectively. 16 (h) EFFECTIVE DATE.—The amendments made by 17 this section shall take effect on the first day of the first 18 fiscal year that commences no earlier than 9 months after 19 the date of the enactment of the Comprehensive Immigra- 20 tion Reform Act of 2010. 21 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00553 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 554 •S 1258 IS SEC. 302. RECLASSIFICATION OF SPOUSES AND MINOR 1 CHILDREN OF LAWFUL PERMANENT RESI- 2 DENTS AS IMMEDIATE RELATIVES. 3 (a) IN GENERAL.—Section 201(b)(2) (8 U.S.C. 4 1151(b)(2)) is amended to read as follows: 5 ‘‘(2)(A)(i) Immediate relatives. 6 ‘‘(ii) In this paragraph, the term ‘immediate 7 relative’ means a child, spouse, or parent of a citizen 8 of the United States or a child or spouse of a lawful 9 permanent resident (and for each family member of 10 a citizen or lawful permanent resident under this 11 subparagraph, such individual’s spouse or child who 12 is accompanying or following to join the individual), 13 except that, in the case of parents, such citizens 14 shall be at least 21 years of age. 15 ‘‘(iii) If an alien who was the spouse of a citizen 16 of the United States and was not legally separated 17 from the citizen at the time of the citizen‘s death 18 files a petition under section 204(a)(1)(A)(ii) not 19 later than 2 years after the date of the citizen’s 20 death, the alien and each child of the alien shall be 21 remain, for purposes of this paragraph, an imme- 22 diate relative during the period beginning on the 23 date of the citizen’s death and ending on the date 24 on which the alien remarries. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00554 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 555 •S 1258 IS ‘‘(iv) An alien who has filed a petition under 1 clause (iii) or (iv) of section 204(a)(1)(A) shall re- 2 main, for purposes of this paragraph, a an imme- 3 diate relative if the United States citizen or lawful 4 permanent resident spouse or parent loses United 5 States citizenship on account of the abuse. 6 ‘‘(B) Aliens admitted under section 211(a) on 7 the basis of a prior issuance of a visa to their ac- 8 companying parent who is an immediate relative. 9 ‘‘(C) Aliens born to an alien lawfully admitted 10 for permanent residence during a temporary visit 11 abroad.’’. 12 (b) ALLOCATION OF IMMIGRANT VISAS.—Section 13 203(a) (8 U.S.C. 1153(a)) is amended— 14 (1) in paragraph (1), by striking ‘‘23,400’’ and 15 inserting ‘‘127,200’’; 16 (2) by striking paragraph (2) and inserting the 17 following: 18 ‘‘(2) UNMARRIED SONS AND UNMARRIED 19 DAUGHTERS OF PERMANENT RESIDENT ALIENS.— 20 Qualified immigrants who are the unmarried sons or 21 unmarried daughters (but are not the children) of 22 an alien lawfully admitted for permanent residence 23 shall be allocated visas in a number not to exceed 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00555 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 556 •S 1258 IS 80,640, plus any visas not required for the class 1 specified in paragraph (1).’’; 2 (3) in paragraph (3), by striking ‘‘23,400’’ and 3 inserting ‘‘80,640’’; and 4 (4) in paragraph (4), by striking ‘‘65,000’’ and 5 inserting ‘‘191,520’’. 6 (c) TECHNICAL AND CONFORMING AMENDMENTS.— 7 (1) RULES FOR DETERMINING WHETHER CER- 8 TAIN ALIENS ARE IMMEDIATE RELATIVES.—Section 9 201(f) (8 U.S.C. 1151(f)) is amended— 10 (A) in paragraph (1), by striking ‘‘para- 11 graphs (2) and (3),’’ and inserting ‘‘paragraph 12 (2),’’; 13 (B) by striking paragraph (2); 14 (C) by redesignating paragraphs (3) and 15 (4) as paragraphs (2) and (3), respectively; and 16 (D) in paragraph (3), as redesignated by 17 subparagraph (C), by striking ‘‘through (3)’’ 18 and inserting ‘‘and (2)’’. 19 (2) NUMERICAL LIMITATION TO ANY SINGLE 20 FOREIGN STATE.—Section 202 (8 U.S.C. 1152) is 21 amended— 22 (A) in subsection (a)(4)— 23 (i) by striking subparagraphs (A) and 24 (B); 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00556 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 557 •S 1258 IS (ii) by redesignating subparagraphs 1 (C) and (D) as subparagraphs (A) and 2 (B), respectively; and 3 (iii) in subparagraph (A), as redesig- 4 nated by clause (ii), by striking ‘‘section 5 203(a)(2)(B)’’ and inserting ‘‘section 6 203(a)(2)’’; and 7 (B) in subsection (e), in the flush matter 8 following paragraph (3), by striking ‘‘, or as 9 limiting the number of visas that may be issued 10 under section 203(a)(2)(A) pursuant to sub- 11 section (a)(4)(A)’’. 12 (3) ALLOCATION OF IMMIGRATION VISAS.—Sec- 13 tion 203(h) (8 U.S.C. 1153(h)) is amended— 14 (A) in paragraph (1)— 15 (i) in the matter preceding subpara- 16 graph (A), by striking ‘‘subsections 17 (a)(2)(A) and (d)’’ and inserting ‘‘sub- 18 section (d)’’; 19 (ii) in subparagraph (A), by striking 20 ‘‘becomes available for such alien (or, in 21 the case of subsection (d), the date on 22 which an immigrant visa number became 23 available for the alien’s parent),’’ and in- 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00557 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 558 •S 1258 IS serting ‘‘became available for the alien’s 1 parent,’’; and 2 (iii) in subparagraph (B), by striking 3 ‘‘applicable’’; 4 (B) by amending paragraph (2) to read as 5 follows: 6 ‘‘(2) PETITIONS DESCRIBED.—The petition de- 7 scribed in this paragraph is a petition filed under 8 section 204 for classification of the alien’s parent 9 under subsection (a), (b), or (c).’’; and 10 (C) in paragraph (3), by striking ‘‘sub- 11 sections (a)(2)(A) and (d)’’ and inserting ‘‘sub- 12 section (d)’’. 13 (4) PROCEDURE FOR GRANTING IMMIGRANT 14 STATUS.—Section 204 (8 U.S.C. 1154) is amend- 15 ed— 16 (A) in subsection (a)(1)— 17 (i) in subparagraph (A)— 18 (I) in clause (i), by inserting ‘‘or 19 lawful permanent resident’’ after ‘‘cit- 20 izen’’; 21 (II) in clause (ii), by striking 22 ‘‘described in the second sentence of 23 section 201(b)(2)(A)(i) also’’ and in- 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00558 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 559 •S 1258 IS serting ‘‘, alien child, or alien parent 1 described in section 201(b)(2)(A)’’; 2 (III) in clause (iii)— 3 (aa) in subclause (I)(aa), by 4 inserting ‘‘or legal permanent 5 resident’’ after ‘‘citizen’’; and 6 (bb) in subclause (II)(aa)— 7 (AA) in subitems (AA) 8 and (BB), by inserting ‘‘or 9 legal permanent resident;’’ 10 after ‘‘citizen’’ each place 11 that term appears; 12 (BB) in subitem (CC), 13 by inserting ‘‘or legal per- 14 manent resident’’ after ‘‘cit- 15 izen’’ each place that term 16 appears; and 17 (CC) in subitem 18 (CC)(bbb), by inserting ‘‘or 19 legal permanent resident’’ 20 after ‘‘citizenship’’; 21 (IV) in clause (iv), by inserting 22 ‘‘or legal permanent resident’’ after 23 ‘‘citizen’’ each place that term ap- 24 pears; 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00559 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 560 •S 1258 IS (V) in clause (v)(I), by inserting 1 ‘‘or legal permanent resident’’ after 2 ‘‘citizen’’; and 3 (VI) in clause (vi)— 4 (aa) by inserting ‘‘or legal 5 permanent resident status’’ after 6 ‘‘renunciation of citizenship’’; 7 and 8 (bb) by inserting ‘‘or legal 9 permanent resident’’ after ‘‘abus- 10 er’s citizenship’’; 11 (ii) by striking subparagraph (B); 12 (iii) in subparagraph (C), by striking 13 ‘‘subparagraph (A)(iii), (A)(iv), (B)(ii), or 14 (B)(iii)’’ and inserting ‘‘clause (iii) or (iv) 15 of subparagraph (A)’’; and 16 (iv) in subparagraph (J), by striking 17 ‘‘or clause (ii) or (iii) of subparagraph 18 (B)’’; 19 (B) in subsection (a), by striking para- 20 graph (2); 21 (C) in subsection (c)(1), by striking ‘‘or 22 preference status’’; and 23 (D) in subsection (h), by striking ‘‘or a pe- 24 tition filed under subsection (a)(1)(B)(ii)’’. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00560 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 561 •S 1258 IS (d) COUNTRY LIMIT.—Section 202(a)(2) (8 U.S.C. 1 1152(a)(2)) is amended to read as follows: 2 ‘‘(2) PER COUNTRY LEVELS FOR FAMILY-SPON- 3 SORED AND EMPLOYMENT-BASED IMMIGRANTS.— 4 Subject to paragraphs (3), (4), and (5) the total 5 number of immigrant visas made available to natives 6 of any single foreign state under subsection (a) of 7 section 203 in any fiscal year may not exceed 15 8 percent of the total number of such visas made 9 available under such subsection in that fiscal year.’’. 10 SEC. 303. RETENTION OF PRIORITY DATE. 11 Section 203(h)(3) (8 U.S.C. 1153(h)(3)) is amended 12 to read as follows: 13 ‘‘(3) RETENTION OF PRIORITY DATE.—If the 14 age of an alien is determined under paragraph (1) 15 to be 21 years of age or older for the purposes of 16 subsections (a)(2)(A) and (d), and a parent of the 17 alien files a petition under section 204 for classifica- 18 tion of such alien based upon a relationship de- 19 scribed in subsection (a), the priority date for such 20 petition shall be the original priority date issued 21 upon receipt of the original family- or employment- 22 based petition for which either parent was a bene- 23 ficiary.’’. 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00561 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 562 •S 1258 IS SEC. 304. DISCRETIONARY AUTHORITY WITH RESPECT TO 1 REMOVAL OR DEPORTATION OF CITIZEN AND 2 RESIDENT IMMEDIATE FAMILY MEMBERS. 3 Section 240(c)(4) (8 U.S.C. 1229a(c)(4)) is amended 4 by adding at the end the following: 5 ‘‘(D) JUDICIAL DISCRETION.—In the case 6 of an alien subject to removal, deportation, or 7 exclusion, the immigration judge may exercise 8 discretion to decline to order the alien removed, 9 deported or excluded from the United States if 10 the judge determines that such removal, depor- 11 tation, or exclusion is against the public interest 12 or would result in hardship to the alien’s 13 United States citizen or permanent resident 14 parent, spouse, or child except that this sub- 15 paragraph shall not apply to an alien whom the 16 judge determines— 17 ‘‘(i) is described in— 18 ‘‘(I) subparagraph (B), (C), 19 (D)(ii), (E), (H), (I), or (J) of section 20 212(a)(2); 21 ‘‘(II) section 212(a)(3); 22 ‘‘(III) subparagraph (A), (C), or 23 (D) of section 212(a)(10); or 24 ‘‘(IV) section 237(a)(4); or 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00562 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 563 •S 1258 IS ‘‘(ii) has engaged in conduct described 1 in paragraph (8) or (9) of section 103 of 2 the Trafficking Victims Protection Act of 3 2000 (22 U.S.C. 7102).’’. 4 SEC. 305. MILITARY FAMILIES. 5 (a) IN GENERAL.—Section 245 (8 U.S.C. 1255) is 6 amended by adding at the end the following: 7 ‘‘(n) ADJUSTMENT OF STATUS FOR IMMEDIATE FAM- 8 ILY MEMBERS OF MEMBERS OF THE ARMED FORCES.— 9 ‘‘(1) IN GENERAL.—The Secretary of Homeland 10 Security shall adjust the status of an alien described 11 in paragraph (2) to that of an alien lawfully admit- 12 ted for permanent residence if the alien— 13 ‘‘(A) applies for such adjustment; 14 ‘‘(B) is admissible to the United States as 15 an immigrant, except as provided in paragraph 16 (4); and 17 ‘‘(C) is physically present in the United 18 States. 19 ‘‘(2) ALIENS ELIGIBLE FOR ADJUSTMENT OF 20 STATUS.—An alien described in this paragraph is an 21 alien— 22 ‘‘(A) who is a parent, spouse, child, son, 23 daughter, or the legal guardian of a child of— 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00563 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 564 •S 1258 IS ‘‘(i) a living Armed Forces member; 1 or 2 ‘‘(ii) a deceased Armed Forces mem- 3 ber if— 4 ‘‘(I) the Armed Forces member 5 died as a result of injury or disease 6 incurred in, or aggravated by, the 7 Armed Forces member’s service; and 8 ‘‘(II) the alien applies for such 9 adjustment— 10 ‘‘(aa) if the death of the 11 Armed Forces member occurred 12 before the date of the enactment 13 of the CIR Act of 2011, not later 14 than 2 years after such date of 15 enactment; or 16 ‘‘(bb) if the death of the 17 Armed Forces member occurred 18 after the date of the enactment 19 of the CIR Act of 2011, not later 20 than 2 years after the death of 21 the Armed Forces member; or 22 ‘‘(B) who is the spouse, child, son, or 23 daughter of an alien described in subparagraph 24 (A). 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00564 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 565 •S 1258 IS ‘‘(3) ARMED FORCES MEMBER DEFINED.—In 1 this subsection, the term ‘Armed Forces member’ 2 means an individual who— 3 ‘‘(A) is, or was at the time of the individ- 4 ual’s death described in paragraph (2)(A)(ii)(I), 5 a national of the United States or lawfully ad- 6 mitted for permanent residence; 7 ‘‘(B) on or after October 7, 2001, served 8 as a member of— 9 ‘‘(i) the Armed Forces on active duty; 10 ‘‘(ii) the National Guard; or 11 ‘‘(iii) the Selected Reserve of the 12 Ready Reserve; and 13 ‘‘(C) if separated from the service de- 14 scribed in subparagraph (B), was separated 15 under honorable conditions. 16 ‘‘(4) INAPPLICABILITY OF CERTAIN GROUNDS 17 OF INADMISSIBILITY.— 18 ‘‘(A) IN GENERAL.—The provisions of 19 paragraphs (4), (5), (6)(A), (7)(A), and (9)(B) 20 of section 212(a) shall not apply to an adjust- 21 ment of status made pursuant to this sub- 22 section. 23 ‘‘(B) WAIVER.—The Secretary of Home- 24 land Security or the Attorney General, as ap- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00565 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 566 •S 1258 IS propriate, may waive any other provision of sec- 1 tion 212(a) (other than paragraph (2)(C) and 2 subparagraphs (A), (B), (C), (E), and (F) of 3 paragraph (3)) with respect to an adjustment of 4 status made pursuant to this subsection— 5 ‘‘(i) for humanitarian purposes; 6 ‘‘(ii) to assure family unity; or 7 ‘‘(iii) if such waiver is otherwise in the 8 public interest. 9 ‘‘(5) FEE AUTHORITY.—The Secretary of 10 Homeland Security or the Secretary of State, as ap- 11 propriate, may establish a fee pursuant to section 12 9701 of title 31, United States Code, for the proc- 13 essing of an application for an adjustment of status 14 made pursuant to this subsection. 15 ‘‘(6) JURISDICTION.— 16 ‘‘(A) SECRETARY OF HOMELAND SECU- 17 RITY.—Except as provide in subparagraph (B), 18 the Secretary of Homeland Security shall have 19 exclusive jurisdiction to determine eligibility for 20 an adjustment of status made pursuant to this 21 subsection. 22 ‘‘(B) ATTORNEY GENERAL.—Notwith- 23 standing paragraph (1) or subparagraph (A), in 24 cases in which an alien has been placed into de- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00566 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 567 •S 1258 IS portation, exclusion, or removal proceedings, ei- 1 ther before or after filing an application for an 2 adjustment of status under this subsection, the 3 Attorney General shall have exclusive jurisdic- 4 tion and shall assume all the powers and duties 5 of the Secretary of Homeland Security until 6 proceedings are terminated, or if a final order 7 of deportation, exclusion, or removal is en- 8 tered.’’. 9 (b) EXEMPTION FROM DIRECT NUMERICAL LIMITA- 10 TIONS.—Section 201(b)(1) (8 U.S.C. 1151(b)(1)), as 11 amended by is amended section 301(c), is further amend- 12 ed by adding at the end the following: 13 ‘‘(K) Aliens provided permanent residence sta- 14 tus under section 245(n).’’. 15 SEC. 306. EQUAL TREATMENT FOR ALL STEPCHILDREN. 16 Section 101(b)(1)(B) (8 U.S.C. 1101(b)(1)(B)) is 17 amended by striking ‘‘, provided the child had not reached 18 the age of eighteen years at the time the marriage creating 19 the status of stepchild occurred’’. 20 SEC. 307. WIDOWS, WIDOWERS, AND ORPHANS. 21 (a) PROTECTION FOR CERTAIN SURVIVING REL- 22 ATIVES.—Section 204(l)(1) (8 U.S.C. 1154(l)(1) is 23 amended by adding at the end the following: ‘‘An alien 24 is not required to reside in the United States to qualify 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00567 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 568 •S 1258 IS to have his or her petition or application adjudicated 1 under this paragraph if the alien is described in subpara- 2 graph (A), (B), or (C) of paragraph (2) and his or her 3 priority date was current at the time of the qualifying rel- 4 ative’s death or is described in subparagraph (D), (E), or 5 (F) of paragraph (2).’’ 6 ‘‘(1) IN GENERAL.—An alien described in para- 7 graph (2) who resided in the United States at the 8 time of the death of the qualifying relative and who 9 continues to reside in the United States’’. 10 (b) CONTINUED WAIVER ELIGIBILITY FOR WIDOWS, 11 WIDOWERS, AND ORPHANS.—Section 212(a)(1)(B) (8 12 U.S.C. 1182(a)(1)(B)) is amended to read as follows: 13 ‘‘(B) WAIVER FOR WIDOWS, WIDOWERS, 14 AND ORPHANS.—An alien who would have been 15 statutorily eligible for a waiver of inadmis- 16 sibility under this Act, if his or her qualifying 17 relative had not died, may be considered for any 18 waiver under this Act notwithstanding such 19 death, which shall constitute the functional 20 equivalent of extreme hardship to the qualifying 21 relative.’’. 22 (c) NATURALIZATION OF SURVIVING RELATIVES.— 23 Section 319(a) (8 U.S.C. 1430(a)) is amended by insert- 24 ing ‘‘(or, if the spouse is deceased, the spouse was a citizen 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00568 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 569 •S 1258 IS of the United States)’’ after ‘‘citizen of the United 1 States’’. 2 SEC. 308. FIANCE´ CHILD STATUS PROTECTION. 3 (a) DEFINITION.—Section 101(a)(15)(K)(iii) (8 4 U.S.C. 1101(a)(15)(K)(iii)) is amended by inserting ‘‘, 5 provided that a determination of the age of such minor 6 child is made using the age of the alien on the date on 7 which the petition is filed with the Secretary of Homeland 8 Security to classify the alien’s parent as the fiance´ or 9 fiance´ of a United States citizen (in the case of an alien 10 parent described in clause (i)) or as the spouse of a United 11 States citizen under section 201(b)(2)(A)(i) (in the case 12 of an alien parent described in clause (ii));’’ before the 13 semicolon at the end. 14 (b) ADJUSTMENT OF STATUS AUTHORIZED.—Section 15 214(d) (8 U.S.C. 1184(d)(1)) is amended— 16 (1) by redesignating paragraphs (2) and (3) as 17 paragraphs (3) and (4), respectively; and 18 (2) in paragraph (1), by striking ‘‘In the event’’ 19 and inserting the following: 20 ‘‘(2)(A) If an alien does not marry the peti- 21 tioner under paragraph (1) within 3 months after 22 the alien and the alien’s minor children are admitted 23 into the United States, such alien and children shall 24 be required to depart from the United States. If 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00569 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 570 •S 1258 IS such aliens fail to depart from the United States, 1 they shall be removed in accordance with sections 2 240 and 241. 3 ‘‘(B) Subject to subparagraphs (C) and (D), if 4 an alien marries the petitioner described in section 5 101(a)(15)(K)(i) within 3 months after the alien is 6 admitted into the United States, the Secretary of 7 Homeland Security or the Attorney General, subject 8 to the provisions of section 245(d), may adjust the 9 status of the alien, and any minor children accom- 10 panying or following to join the alien, to that of an 11 alien lawfully admitted for permanent residence on 12 a conditional basis under section 216 if the alien 13 and any such minor children apply for such adjust- 14 ment and are not determined to be inadmissible to 15 the United States. 16 ‘‘(C) Paragraphs (5) and (7)(A) of section 17 212(a) shall not apply to an alien who is eligible to 18 apply for adjustment of his or her status to an alien 19 lawfully admitted for permanent residence under this 20 section. 21 ‘‘(D) An alien eligible for a waiver of inadmis- 22 sibility as otherwise authorized under this Act shall 23 be permitted to apply for adjustment of his or her 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00570 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 571 •S 1258 IS status to that of an alien lawfully admitted for per- 1 manent residence under this section.’’. 2 (c) AGE DETERMINATION.—Section 245(d) (8 U.S.C. 3 1155(d)) is amended— 4 (1) by inserting ‘‘(1)’’ before ‘‘The Attorney 5 General’’; and 6 (2) by adding at the end the following: 7 ‘‘(2) A determination of the age of an alien ad- 8 mitted to the United States under section 9 101(a)(15)(K)(iii) shall be made, for purposes of ad- 10 justment to the status of an alien lawfully admitted 11 for permanent residence on a conditional basis under 12 section 216, using the age of the alien on the date 13 on which the petition is filed with the Secretary of 14 Homeland Security to classify the alien’s parent as 15 the fiance´ or fiance´ of a United States citizen (in the 16 case of an alien parent admitted to the United 17 States under section 101(a)(15)(K)(i)) or as the 18 spouse of a United States citizen under section 19 201(b)(2)(A)(i) (in the case of an alien parent ad- 20 mitted to the United States under section 21 101(a)(15)(K)(ii)).’’. 22 (d) EFFECTIVE DATE.— 23 (1) IN GENERAL.—The amendments made by 24 this subsection shall be effective as if included in the 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00571 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 572 •S 1258 IS Immigration Marriage Fraud Amendments of 1986 1 (Public Law 99–639). 2 (2) APPLICABILITY.—The amendments made 3 by this subsection shall apply to all petitions or ap- 4 plications described in such amendments that— 5 (A) are pending as of the date of the en- 6 actment of this Act; or 7 (B) have been denied, but would have been 8 approved if such amendments had been in effect 9 at the time of adjudication of the petition or 10 application. 11 (3) MOTION TO REOPEN OR RECONSIDER.—A 12 motion to reopen or reconsider a petition or applica- 13 tion described in subparagraph (B)(ii) shall be 14 granted if such motion is filed with the Secretary or 15 the Attorney General not later than 2 years after 16 the date of the enactment of this Act. 17 SEC. 309. SPECIAL HUMANITARIAN VISAS. 18 Section 103 (8 U.S.C. 1103) is amended by adding 19 at the end the following: 20 ‘‘(i) AUTHORITY TO WAIVE ELIGIBILITY REQUIRE- 21 MENTS FOR SPECIAL HUMANITARIAN CONSIDER- 22 ATIONS.—Notwithstanding any other provision of law, the 23 Secretary of Homeland Security may waive any require- 24 ments under this Act on behalf of not more than 1,000 25 VerDate Mar 15 2010 05:21 Jun 24, 2011 Jkt 099200 PO 00000 Frm 00572 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 573 •S 1258 IS aliens whose circumstances involve special humanitarian 1 considerations.’’. 2 SEC. 310. EXEMPTION FROM IMMIGRANT VISA LIMIT FOR 3 CERTAIN VETERANS FROM THE PHILIPPINES. 4 Section 201(b)(1) (8 U.S.C. 1151(b)(1)), as amended 5 by this subtitle, is further amended by adding at the end 6 the following: 7 ‘‘(L) Aliens who are eligible for an immigrant 8 visa under paragraph (1) or (3) of section 203(a) 9 and have a parent (regardless of whether the parent 10 is living or dead) who was naturalized pursuant to 11 section 405 of the Immigration Act of 1990 (8 12 U.S.C. 1440 note) or title III of the Act of October 13 14, 1940 (8 U.S.C. 501 et seq.), as in effect between 14 March 27, 1942 and December 24, 1952.’’. 15 SEC. 311. AFFIDAVIT OF SUPPORT. 16 Section 213A (8 U.S.C. 1183a) is amended— 17 (1) in subsection (a)(1)(A) by striking ‘‘125’’ 18 and inserting ‘‘100’’; 19 (2) in subsection (f)(1)(E), by striking ‘‘125’’ 20 and inserting ‘‘100’’; 21 (3) in subsection (f)(4)(B)(i), by striking ‘‘125’’ 22 and inserting ‘‘100’’; and 23 (4) in subsection (f)(5)(A), by striking ‘‘125’’ 24 and inserting ‘‘100’’. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00573 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 574 •S 1258 IS SEC. 312. RETAINING WORKERS SUBJECT TO GREEN CARD 1 BACKLOG. 2 (a) ADJUSTMENT OF STATUS.— 3 (1) IN GENERAL.—Section 245 (8 U.S.C. 4 1255), as amended by section 305, is further 5 amended by adding at the end the following: 6 ‘‘(o) ADJUSTMENT OF STATUS FOR EMPLOYMENT- 7 BASED IMMIGRANTS.— 8 ‘‘(1) ELIGIBILITY.—The Secretary of Homeland 9 Security shall promulgate regulations to provide for 10 the filing of an application for adjustment of status 11 by an alien (and any eligible dependents of such 12 alien), regardless of whether an immigrant visa is 13 immediately available at the time the application is 14 filed, if the alien— 15 ‘‘(A) has an approved petition under sub- 16 paragraph (E) or (F) of section 204(a)(1); or 17 ‘‘(B) at the discretion of the Secretary, has 18 a pending petition under subparagraph (E) or 19 (F) of section 204(a)(1). 20 ‘‘(2) VISA AVAILABILITY.—An application filed 21 pursuant to paragraph (1) may not be approved 22 until an immigrant visa becomes available. 23 ‘‘(3) FEES.—If an application is filed pursuant 24 to paragraph (1), the beneficiary of such application 25 shall pay a supplemental fee of $500. Such fee may 26 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00574 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 575 •S 1258 IS not be charged to any dependent accompanying or 1 following to join such beneficiary. 2 ‘‘(4) EXTENSION OF EMPLOYMENT AUTHORIZA- 3 TION AND ADVANCED PAROLE DOCUMENT.— 4 ‘‘(A) IN GENERAL.—The Secretary of 5 Homeland Security shall provide employment 6 authorization and advanced parole documents, 7 in 3-year increments, to beneficiaries of an ap- 8 plication for adjustment of status based on a 9 petition that is filed or, at the discretion of the 10 Secretary, pending, under subparagraph (E) or 11 (F) of section 204(a)(1). 12 ‘‘(B) FEE ADJUSTMENTS.—Application 13 fees under this subsection may be adjusted in 14 accordance with the 3-year period of validity as- 15 signed to the employment authorization or ad- 16 vanced parole documents under subparagraph 17 (A).’’. 18 (b) USE OF FEES.—Section 286 (8 U.S.C. 1356) is 19 amended— 20 (1) in subsection (m)— 21 (A) by striking ‘‘Notwithstanding any 22 other provisions of law,’’ and inserting the fol- 23 lowing: 24 ‘‘(c) IMMIGRATION EXAMINATIONS FEE ACCOUNT.— 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00575 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 576 •S 1258 IS ‘‘(1) IN GENERAL.—Notwithstanding any other 1 provision of law, all fees collected under section 2 245(o)(3) and’’; 3 (B) by striking ‘‘: Provided, however, That 4 all’’ and inserting the following: 5 ‘‘(2) VIRGIN ISLANDS; GUAM.—All’’; and 6 (C) by striking ‘‘: Provided further, That 7 fees’’ and inserting the following: 8 ‘‘(3) COST RECOVERY.—Fees’’. 9 (2) in subsection (n)— 10 (A) by striking ‘‘(n) All deposits’’ and in- 11 serting the following: 12 ‘‘(4) USE OF FUNDS.— 13 ‘‘(A) IN GENERAL.—Except as provided 14 under subparagraph (B), all deposits’’; and 15 (B) adding at the end the following: 16 ‘‘(C) SUPPLEMENTAL FEE FOR ADJUST- 17 MENT OF STATUS OF EMPLOYMENT-BASED IM- 18 MIGRANTS.—Any amounts deposited into the 19 Immigration Examinations Fee Account that 20 were collected under section 245(o)(3) shall re- 21 main available until expended by the Secretary 22 of Homeland Security for backlog reduction and 23 clearing security background check delays.’’; 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00576 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 577 •S 1258 IS (3) in subsection (o), by striking ‘‘(o) The At- 1 torney General’’ and inserting the following: 2 ‘‘(5) ANNUAL FINANCIAL REPORT TO CON- 3 GRESS.—The Attorney General’’; and 4 (4) in subsection (p), by striking ‘‘(p) The pro- 5 visions set forth in subsections (m), (n), and (o) of 6 this section’’ and inserting the following: 7 ‘‘(6) APPLICABILITY.—The provisions set forth 8 in this subsection shall’’. 9 CHAPTER 2—UNITING AMERICAN 10 FAMILIES ACT 11 SEC. 315. SHORT TITLE. 12 This chapter may be cited as the ‘‘Uniting American 13 Families Act of 2011’’. 14 SEC. 316. DEFINITIONS OF PERMANENT PARTNER AND 15 PERMANENT PARTNERSHIP. 16 Section 101(a) (8 U.S.C. 1101(a)) is amended— 17 (1) in paragraph (15)(K)(ii), by inserting ‘‘or 18 permanent partnership’’ after ‘‘marriage’’; and 19 (2) by adding at the end the following: 20 ‘‘(52) The term ‘permanent partner’ means an 21 individual 18 years of age or older who— 22 ‘‘(A) is in a committed, intimate relation- 23 ship with another individual 18 years of age or 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00577 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 578 •S 1258 IS older in which both individuals intend a lifelong 1 commitment; 2 ‘‘(B) is financially interdependent with 3 that other individual; 4 ‘‘(C) is not married to, or in a permanent 5 partnership with, any individual other than that 6 other individual; 7 ‘‘(D) is unable to contract with that other 8 individual a marriage cognizable under this Act; 9 and 10 ‘‘(E) is not a first, second, or third degree 11 blood relation of that other individual. 12 ‘‘(53) The term ‘permanent partnership’ means 13 the relationship that exists between 2 permanent 14 partners.’’. 15 SEC. 317. IMMIGRANT VISAS. 16 (a) WORLDWIDE LEVEL OF IMMIGRATION.—Section 17 201(b)(2)(A) (8 U.S.C. 1151(b)(2)(A)), as amended by 18 section 302, is further amended— 19 (1) by striking ‘‘spouse’’ each place it appears 20 and inserting ‘‘spouse or permanent partner’’; 21 (2) by inserting ‘‘(or, in the case of a perma- 22 nent partnership, whose permanent partnership was 23 not terminated)’’ after ‘‘was not legally separated 24 from the citizen’’; and 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00578 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 579 •S 1258 IS (3) by striking ‘‘remarries.’’ and inserting ‘‘re- 1 marries or enters a permanent partnership with an- 2 other person.’’. 3 (b) NUMERICAL LIMITATIONS ON INDIVIDUAL FOR- 4 EIGN STATES.— 5 (1) PER COUNTRY LEVELS.—Section 202(a)(4) 6 (8 U.S.C. 1152(a)(4)) is amended— 7 (A) in the paragraph heading, by inserting 8 ‘‘, PERMANENT PARTNERS,’’ after ‘‘SPOUSES’’; 9 (B) in the heading of subparagraph (A), by 10 inserting ‘‘, PERMANENT PARTNERS,’’ after 11 ‘‘SPOUSES’’; and 12 (C) in the heading of subparagraph (C), by 13 striking ‘‘AND DAUGHTERS’’ inserting ‘‘WITH- 14 OUT PERMANENT PARTNERS AND UNMARRIED 15 DAUGHTERS WITHOUT PERMANENT PART- 16 NERS’’. 17 (2) RULES FOR CHARGEABILITY.—Section 18 202(b)(2) (8 U.S.C. 1152(b)(2)) is amended— 19 (A) by striking ‘‘his spouse’’ and inserting 20 ‘‘his or her spouse or permanent partner’’; 21 (B) by striking ‘‘such spouse’’ each place it 22 appears and inserting ‘‘such spouse or perma- 23 nent partner’’; and 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00579 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 580 •S 1258 IS (C) by inserting ‘‘or permanent partners’’ 1 after ‘‘husband and wife’’. 2 (c) ALLOCATION.— 3 (1) PREFERENCE ALLOCATION FOR FAMILY 4 MEMBERS OF PERMANENT RESIDENT ALIENS.—Sec- 5 tion 203(a)(2) (8 U.S.C. 1153(a)(2)) is amended— 6 (A) by striking the paragraph heading and 7 inserting the following: 8 ‘‘(B) SPOUSES, PERMANENT PARTNERS, 9 UNMARRIED SONS WITHOUT PERMANENT PART- 10 NERS, AND UNMARRIED DAUGHTERS WITHOUT 11 PERMANENT PARTNERS OF PERMANENT RESI- 12 DENT ALIENS.—’’; 13 (B) in subparagraph (A), by inserting ‘‘, 14 permanent partners,’’ after ‘‘spouses’’; and 15 (C) in subparagraph (B), by striking ‘‘or 16 unmarried daughters’’ and inserting ‘‘without 17 permanent partners or the unmarried daughters 18 without permanent partners’’. 19 (2) PREFERENCE ALLOCATION FOR SONS AND 20 DAUGHTERS OF CITIZENS.—Section 203(a)(3) (8 21 U.S.C. 1153(a)(3)) is amended— 22 (A) by striking the paragraph heading and 23 inserting the following: 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00580 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 581 •S 1258 IS ‘‘(2) MARRIED SONS AND DAUGHTERS OF CITI- 1 ZENS AND SONS AND DAUGHTERS WITH PERMANENT 2 PARTNERS OF CITIZENS.—’’; and 3 (B) by inserting ‘‘, or sons or daughters 4 with permanent partners,’’ after ‘‘daughters’’. 5 (3) EMPLOYMENT CREATION.—Section 6 203(b)(5)(A)(ii) (8 U.S.C. 1153(b)(5)(A)(ii)) is 7 amended by inserting ‘‘permanent partner,’’ after 8 ‘‘spouse,’’. 9 (4) TREATMENT OF FAMILY MEMBERS.—Sec- 10 tion 203(d) (8 U.S.C. 1153(d)) is amended— 11 (A) by inserting ‘‘or permanent partner’’ 12 after ‘‘section 101(b)(1)’’; and 13 (B) by inserting ‘‘, permanent partner,’’ 14 after ‘‘the spouse’’. 15 (d) PROCEDURES.— 16 (1) CLASSIFICATION PETITIONS.—Section 17 204(a)(1) (8 U.S.C. 1154(a)(1)) is amended— 18 (A) in subparagraph (A)— 19 (i) in clause (ii), by inserting ‘‘or per- 20 manent partner’’ after ‘‘spouse’’; 21 (ii) in clause (iii)— 22 (I) by inserting ‘‘or permanent 23 partner’’ after ‘‘spouse’’ each place it 24 appears; and 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00581 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 582 •S 1258 IS (II) in subclause (I), by inserting 1 ‘‘or permanent partnership’’ after 2 ‘‘marriage’’ each place it appears; 3 (iii) in clause (v)(I), by inserting ‘‘per- 4 manent partner,’’ after ‘‘is the spouse,’’; 5 and 6 (iv) in clause (vi)— 7 (I) by inserting ‘‘or termination 8 of the permanent partnership’’ after 9 ‘‘divorce’’; and 10 (II) by inserting ‘‘, permanent 11 partner,’’ after ‘‘spouse’’; and 12 (B) in subparagraph (B)— 13 (i) by inserting ‘‘or permanent part- 14 ner’’ after ‘‘spouse’’ each place it appears; 15 and 16 (ii) in clause (ii)— 17 (I) in subclause (I)(aa), by in- 18 serting ‘‘or permanent partnership’’ 19 after ‘‘marriage’’; 20 (II) in subclause (I)(bb), by in- 21 serting ‘‘or permanent partnership’’ 22 after ‘‘marriage’’ the first place it ap- 23 pears; and 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00582 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 583 •S 1258 IS (III) in subclause (II)(aa), by in- 1 serting ‘‘(or the termination of the 2 permanent partnership)’’ after ‘‘termi- 3 nation of the marriage’’. 4 (2) IMMIGRATION FRAUD PREVENTION.—Sec- 5 tion 204(c) (8 U.S.C. 1154(c)) is amended— 6 (A) by inserting ‘‘or permanent partner’’ 7 after ‘‘spouse’’ each place it appears; and 8 (B) by inserting ‘‘or permanent partner- 9 ship’’ after ‘‘marriage’’ each place it appears. 10 SEC. 318. REFUGEES AND ASYLEES. 11 (a) ANNUAL ADMISSION OF REFUGEES AND ADMIS- 12 SION OF EMERGENCY SITUATION REFUGEES.—Section 13 207(c) (8 U.S.C. 1157(c)) is amended— 14 (1) in paragraph (2)— 15 (A) by inserting ‘‘, permanent partner,’’ 16 after ‘‘spouse’’ each place it appears; and 17 (B) by inserting ‘‘, permanent partner’s,’’ 18 after ‘‘spouse’s’’; and 19 (2) in paragraph (4), by inserting ‘‘, permanent 20 partner,’’ after ‘‘spouse’’. 21 (b) ASYLUM.—Section 208(b)(3) (8 U.S.C. 22 1158(b)(3)) is amended— 23 (1) in the paragraph heading, by inserting ‘‘, 24 PERMANENT PARTNER,’’ after ‘‘SPOUSE’’; and 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00583 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 584 •S 1258 IS (2) in subparagraph (A), by inserting ‘‘, perma- 1 nent partner,’’ after ‘‘spouse’’. 2 (c) ADJUSTMENT OF STATUS OF REFUGEES.—Sec- 3 tion 209(b)(3) (8 U.S.C. 1159(b)(3)) is amended by in- 4 serting ‘‘, permanent partner,’’ after ‘‘spouse’’. 5 SEC. 319. INADMISSIBLE ALIENS. 6 (a) CLASSES OF ALIENS INELIGIBLE FOR VISAS OR 7 ADMISSION.—Section 212(a) (8 U.S.C. 1182(a)) is 8 amended— 9 (1) in paragraph (3)(D)(iv), by inserting ‘‘per- 10 manent partner,’’ after ‘‘spouse,’’; 11 (2) in paragraph (4)(C)(i)(I), by inserting ‘‘, 12 permanent partner,’’ after ‘‘spouse’’; 13 (3) in paragraph (6)(E)(ii), by inserting ‘‘per- 14 manent partner,’’ after ‘‘spouse,’’; and 15 (4) in paragraph (9)(B)(v), by inserting ‘‘, per- 16 manent partner,’’ after ‘‘spouse’’. 17 (b) WAIVERS.—Section 212(d) (8 U.S.C. 1182(d)) is 18 amended— 19 (1) in paragraph (11), by inserting ‘‘permanent 20 partner,’’ after ‘‘spouse,’’; and 21 (2) in paragraph (12), by inserting ‘‘, perma- 22 nent partner,’’ after ‘‘spouse’’. 23 (c) WAIVERS OF INADMISSIBILITY ON HEALTH-RE- 24 LATED GROUNDS.—Section 212(g)(1)(A) (8 U.S.C. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00584 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 585 •S 1258 IS 1182(g)(1)(A)) is amended by inserting ‘‘, permanent 1 partner,’’ after ‘‘spouse’’. 2 (d) WAIVERS OF INADMISSIBILITY ON CRIMINAL AND 3 RELATED GROUNDS.—Section 212(h)(1)(B) (8 U.S.C. 4 1182(h)(1)(B)) is amended by inserting ‘‘permanent part- 5 ner,’’ after ‘‘spouse,’’. 6 (e) WAIVER OF INADMISSIBILITY FOR MISREPRESEN- 7 TATION.—Section 212(i)(1) (8 U.S.C. 1182(i)(1)) is 8 amended by inserting ‘‘permanent partner,’’ after 9 ‘‘spouse,’’. 10 SEC. 320. NONIMMIGRANT STATUS FOR PERMANENT PART- 11 NERS AWAITING THE AVAILABILITY OF AN 12 IMMIGRANT VISA. 13 Section 214(r) (8 U.S.C. 1184(r)) is amended— 14 (1) in paragraph (1), by inserting ‘‘or perma- 15 nent partner’’ after ‘‘spouse’’; and 16 (2) in paragraph (2), by inserting ‘‘or perma- 17 nent partnership’’ after ‘‘marriage’’ each place it ap- 18 pears. 19 SEC. 321. CONDITIONAL PERMANENT RESIDENT STATUS. 20 (a) CERTAIN ALIEN SPOUSES, PERMANENT PART- 21 NERS, AND SONS AND DAUGHTERS.— 22 (1) SECTION HEADING.— 23 (A) IN GENERAL.—The heading for section 24 216 (8 U.S.C. 1186a) is amended by striking 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00585 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 586 •S 1258 IS ‘‘AND SONS’’ and inserting ‘‘, PERMANENT 1 PARTNERS, SONS,’’. 2 (B) CLERICAL AMENDMENT.—The table of 3 contents is amended by amending the item re- 4 lating to section 216 to read as follows: 5 ‘‘Sec. 216. Conditional permanent resident status for certain alien spouses, per- manent partners, sons, and daughters.’’. (2) IN GENERAL.—Section 216(a) (8 U.S.C. 6 1186a(a)) is amended— 7 (A) in paragraph (1), by inserting ‘‘or per- 8 manent partner’’ after ‘‘spouse’’; and 9 (B) in paragraph (2)— 10 (i) in subparagraph (A), by inserting 11 ‘‘or permanent partner’’ after ‘‘spouse’’; 12 (ii) in subparagraph (B), by inserting 13 ‘‘permanent partner,’’ after ‘‘spouse,’’; and 14 (iii) in subparagraph (C), by inserting 15 ‘‘permanent partner,’’ after ‘‘spouse,’’. 16 (3) TERMINATION OF STATUS IF FINDING THAT 17 QUALIFYING MARRIAGE IMPROPER.—Section 216(b) 18 (8 U.S.C. 1186a(b)) is amended— 19 (A) in the subsection heading, by inserting 20 ‘‘OR PERMANENT PARTNERSHIP’’ after ‘‘MAR- 21 RIAGE’’; and 22 (B) in paragraph (1)(A)— 23 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00586 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 587 •S 1258 IS (i) by inserting ‘‘or permanent part- 1 nership’’ after ‘‘marriage’’; and 2 (ii) in clause (ii)— 3 (I) by inserting ‘‘or has ceased to 4 satisfy the criteria for being consid- 5 ered a permanent partnership under 6 this Act,’’ after ‘‘terminated,’’; and 7 (II) by inserting ‘‘or permanent 8 partner’’ after ‘‘spouse’’. 9 (4) REQUIREMENTS OF TIMELY PETITION AND 10 INTERVIEW FOR REMOVAL OF CONDITION.—Section 11 216(c) (8 U.S.C. 1186a(c)) is amended— 12 (A) in paragraphs (1), (2)(A)(ii), 13 (3)(A)(ii), (3)(C), (4)(B), and (4)(C), by insert- 14 ing ‘‘or permanent partner’’ after ‘‘spouse’’ 15 each place it appears; and 16 (B) in paragraph (3)(A), (3)(D), (4)(B), 17 and (4)(C), by inserting ‘‘or permanent part- 18 nership’’ after ‘‘marriage’’ each place it ap- 19 pears. 20 (5) CONTENTS OF PETITION.—Section 21 216(d)(1) (8 U.S.C. 1186a(d)(1)) is amended— 22 (A) in subparagraph (A)— 23 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00587 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 588 •S 1258 IS (i) in the heading, by inserting ‘‘OR 1 PERMANENT PARTNERSHIP’’ after ‘‘MAR- 2 RIAGE’’; 3 (ii) in clause (i)— 4 (I) by inserting ‘‘or permanent 5 partnership’’ after ‘‘marriage’’; 6 (II) in subclause (I), by inserting 7 before the comma at the end ‘‘, or is 8 a permanent partnership recognized 9 under this Act’’; and 10 (III) in subclause (II)— 11 (aa) by inserting ‘‘or has not 12 ceased to satisfy the criteria for 13 being considered a permanent 14 partnership under this Act,’’ 15 after ‘‘terminated,’’; and 16 (bb) by inserting ‘‘or perma- 17 nent partner’’ after ‘‘spouse’’; 18 and 19 (iii) in clause (ii), by inserting ‘‘or 20 permanent partner’’ after ‘‘spouse’’; and 21 (B) in subparagraph (B)(i)— 22 (i) by inserting ‘‘or permanent part- 23 nership’’ after ‘‘marriage’’; and 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00588 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 589 •S 1258 IS (ii) by inserting ‘‘or permanent part- 1 ner’’ after ‘‘spouse’’. 2 (6) DEFINITIONS.—Section 216(g) (8 U.S.C. 3 1186a(g)) is amended— 4 (A) in paragraph (1)— 5 (i) by inserting ‘‘or permanent part- 6 ner’’ after ‘‘spouse’’ each place it appears; 7 and 8 (ii) by inserting ‘‘or permanent part- 9 nership’’ after ‘‘marriage’’ each place it ap- 10 pears; 11 (B) in paragraph (2), by inserting ‘‘or per- 12 manent partnership’’ after ‘‘marriage’’; 13 (C) in paragraph (3), by inserting ‘‘or per- 14 manent partnership’’ after ‘‘marriage’’; and 15 (D) in paragraph (4)— 16 (i) by inserting ‘‘or permanent part- 17 ner’’ after ‘‘spouse’’ each place it appears; 18 and 19 (ii) by inserting ‘‘or permanent part- 20 nership’’ after ‘‘marriage’’. 21 (b) CERTAIN ALIEN ENTREPRENEURS, SPOUSES, 22 PERMANENT PARTNERS, AND CHILDREN.— 23 (1) IN GENERAL.—Section 216A (8 U.S.C. 24 1186b) is amended— 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00589 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 590 •S 1258 IS (A) in the section heading, by inserting ‘‘, 1 PERMANENT PARTNERS,’’ after ‘‘SPOUSES’’; and 2 (B) in paragraphs (1), (2)(A), (2)(B), and 3 (2)(C), by inserting ‘‘or permanent partner’’ 4 after ‘‘spouse’’ each place it appears. 5 (2) TERMINATION OF STATUS IF FINDING THAT 6 QUALIFYING ENTREPRENEURSHIP IMPROPER.—Sec- 7 tion 216A(b)(1) (8 U.S.C. 1186b(b)(1)) is amended 8 by inserting ‘‘or permanent partner’’ after ‘‘spouse’’ 9 in the matter following subparagraph (C). 10 (3) REQUIREMENTS OF TIMELY PETITION AND 11 INTERVIEW FOR REMOVAL OF CONDITION.—Section 12 216A(c) (8 U.S.C. 1186b(c)) is amended, in para- 13 graphs (1), (2)(A)(ii), and (3)(C), by inserting ‘‘or 14 permanent partner’’ after ‘‘spouse’’. 15 (4) DEFINITIONS.—Section 216A(f)(2) (8 16 U.S.C. 1186b(f)(2)) is amended by inserting ‘‘or 17 permanent partner’’ after ‘‘spouse’’ each place it ap- 18 pears. 19 (5) CLERICAL AMENDMENT.—The table of con- 20 tents is amended by amending the item relating to 21 section 216A to read as follows: 22 ‘‘Sec. 216A. Conditional permanent resident status for certain alien entre- preneurs, spouses, permanent partners, and children.’’. VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00590 Fmt 6652 Sfmt 6211 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 591 •S 1258 IS SEC. 322. DEPORTATION AND REMOVAL. 1 (a) DEPORTABLE ALIENS.—Section 237(a)(1) (8 2 U.S.C. 1227(a)(1)) is amended— 3 (1) in subparagraph (D)(i), by inserting ‘‘or 4 permanent partners’’ after ‘‘spouses’’ each place it 5 appears; 6 (2) in subparagraphs (E)(ii), (E)(iii), and 7 (H)(i)(I), by inserting ‘‘or permanent partner’’ after 8 ‘‘spouse’’; 9 (3) by inserting after subparagraph (E) the fol- 10 lowing: 11 ‘‘(F) PERMANENT PARTNERSHIP FRAUD.— 12 An alien shall be considered to be deportable as 13 having procured a visa or other documentation 14 by fraud (within the meaning of section 15 212(a)(6)(C)(i)) and to be in the United States 16 in violation of this Act (within the meaning of 17 subparagraph (B)) if— 18 ‘‘(i) the alien obtains any admission to 19 the United States with an immigrant visa 20 or other documentation procured on the 21 basis of a permanent partnership entered 22 into less than 2 years before such admis- 23 sion and which, within 2 years subsequent 24 to such admission, is terminated because 25 the criteria for permanent partnership are 26 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00591 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 592 •S 1258 IS no longer fulfilled, unless the alien estab- 1 lishes to the satisfaction of the Secretary 2 of Homeland Security that such permanent 3 partnership was not contracted for the 4 purpose of evading any provision of the im- 5 migration laws; or 6 ‘‘(ii) it appears to the satisfaction of 7 the Secretary of Homeland Security that 8 the alien has failed or refused to fulfill the 9 alien’s permanent partnership, which the 10 Secretary of Homeland Security deter- 11 mines was made for the purpose of pro- 12 curing the alien’s admission as an immi- 13 grant.’’; and 14 (4) in paragraphs (2)(E)(i) and (3)(C)(ii), by 15 inserting ‘‘or permanent partner’’ after ‘‘spouse’’ 16 each place it appears. 17 (b) REMOVAL PROCEEDINGS.—Section 240 (8 U.S.C. 18 1229a) is amended— 19 (1) in the heading of subsection (c)(7)(C)(iv), 20 by inserting ‘‘PERMANENT PARTNERS,’’ after 21 ‘‘SPOUSES,’’; and 22 (2) in subsection (e)(1), by inserting ‘‘perma- 23 nent partner,’’ after ‘‘spouse,’’. 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00592 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 593 •S 1258 IS (c) CANCELLATION OF REMOVAL.—Section 240A(b) 1 (8 U.S.C. 1229b(b)) is amended— 2 (1) in paragraph (1)(D), by inserting ‘‘or per- 3 manent partner’’ after ‘‘spouse’’; and 4 (2) in paragraph (2)— 5 (A) in the paragraph heading, by inserting 6 ‘‘, PERMANENT PARTNER,’’ after ‘‘SPOUSE’’; 7 and 8 (B) in subparagraph (A), by inserting ‘‘, 9 permanent partner,’’ after ‘‘spouse’’ each place 10 it appears. 11 SEC. 323. ADJUSTMENT OF STATUS; CRIMINAL PENALTIES; 12 OTHER REQUIREMENTS. 13 (a) ADJUSTMENT OF STATUS OF NONIMMIGRANT TO 14 THAT OF PERSON ADMITTED FOR PERMANENT RESI- 15 DENCE.— 16 (1) PROHIBITION ON ADJUSTMENT OF STA- 17 TUS.—Section 245(d) (8 U.S.C. 1255(d)) is amend- 18 ed by inserting ‘‘or permanent partnership’’ after 19 ‘‘marriage’’. 20 (2) AVOIDING IMMIGRATION FRAUD.—Section 21 245(e) (8 U.S.C. 1255(e)) is amended— 22 (A) in paragraph (1), by inserting ‘‘or per- 23 manent partnership’’ after ‘‘marriage’’; and 24 (B) by adding at the end the following: 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00593 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 594 •S 1258 IS ‘‘(4)(A) Paragraph (1) and section 204(g) shall not 1 apply with respect to a permanent partnership if the alien 2 establishes by clear and convincing evidence to the satis- 3 faction of the Secretary of Homeland Security that— 4 ‘‘(i) the permanent partnership was entered 5 into in good faith and in accordance with section 6 101(a)(52); 7 ‘‘(ii) the permanent partnership was not en- 8 tered into for the purpose of procuring the alien’s 9 admission as an immigrant; and 10 ‘‘(iii) no fee or other consideration was given 11 (other than a fee or other consideration to an attor- 12 ney for assistance in preparation of a lawful peti- 13 tion) for the filing of a petition under section 204(a) 14 or 214(d) with respect to the alien permanent part- 15 ner. 16 ‘‘(B) The Secretary shall promulgate regulations that 17 provide for only 1 level of administrative appellate review 18 for each alien under subparagraph (A).’’. 19 (3) ADJUSTMENT OF STATUS FOR CERTAIN 20 ALIENS PAYING FEE.—Section 245(i)(1)(B) (8 21 U.S.C. 1255(i)(1)(B)) is amended by inserting ‘‘, 22 permanent partner,’’ after ‘‘spouse’’. 23 (b) APPLICATION OF CRIMINAL PENALTIES TO FOR 24 MISREPRESENTATION AND CONCEALMENT OF FACTS RE- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00594 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 595 •S 1258 IS GARDING PERMANENT PARTNERSHIPS.—Section 275(c) 1 (8 U.S.C. 1325(c)) is amended to read as follows: 2 ‘‘(c) Any individual who knowingly enters into a mar- 3 riage or permanent partnership for the purpose of evading 4 any provision of the immigration laws shall be imprisoned 5 for not more than 5 years, fined not more than $250,000, 6 or both.’’. 7 (c) REQUIREMENTS AS TO RESIDENCE, GOOD MORAL 8 CHARACTER, ATTACHMENT TO THE PRINCIPLES OF THE 9 CONSTITUTION.—Section 316(b) (8 U.S.C. 1427(b)) is 10 amended by inserting ‘‘, permanent partner,’’ after 11 ‘‘spouse’’. 12 SEC. 324. NATURALIZATION FOR PERMANENT PARTNERS 13 OF CITIZENS. 14 (a) IN GENERAL.—Section 319 (8 U.S.C. 1430) is 15 amended— 16 (1) in subsection (a)— 17 (A) by inserting ‘‘or permanent partner’’ 18 after ‘‘spouse’’ each place it appears; and 19 (B) by inserting ‘‘or permanent partner- 20 ship’’ after ‘‘marital union’’; 21 (2) in subsection (b)— 22 (A) in paragraph (1), by inserting ‘‘or per- 23 manent partner’’ after ‘‘spouse’’; and 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00595 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 596 •S 1258 IS (B) in paragraph (3), by inserting ‘‘or per- 1 manent partner’’ after ‘‘spouse’’; 2 (3) in subsection (d)— 3 (A) by inserting ‘‘or permanent partner’’ 4 after ‘‘spouse’’ each place it appears; and 5 (B) by inserting ‘‘or permanent partner- 6 ship’’ after ‘‘marital union’’; 7 (4) in subsection (e)(1)— 8 (A) by inserting ‘‘or permanent partner’’ 9 after ‘‘spouse’’; 10 (B) by inserting ‘‘by the Secretary of De- 11 fense’’ after ‘‘is authorized’’; and 12 (C) by inserting ‘‘or permanent partner- 13 ship’’ after ‘‘marital union’’; and 14 (5) in subsection (e)(2), by inserting ‘‘or per- 15 manent partner’’ after ‘‘spouse’’. 16 (b) SAVINGS PROVISION.—Section 319(e) (8 U.S.C. 17 1430(e)) is amended by adding at the end the following: 18 ‘‘(3) Nothing in this subsection may be construed to 19 confer a right for an alien to accompany a member of the 20 Armed Forces of the United States or to reside abroad 21 with such member, except as authorized by the Secretary 22 of Defense in the member’s official orders.’’. 23 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00596 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 597 •S 1258 IS SEC. 325. APPLICATION OF FAMILY UNITY PROVISIONS TO 1 OTHER LAWS. 2 (a) APPLICATION OF FAMILY UNITY PROVISIONS TO 3 PERMANENT PARTNERS OF CERTAIN LIFE ACT BENE- 4 FICIARIES.—Section 1504 of the LIFE Act Amendments 5 of 2000 (division B of Public Law 106–554; 114 Stat. 6 2763–325) is amended— 7 (1) in the heading, by inserting ‘‘, PERMA- 8 NENT PARTNERS,’’ after ‘‘SPOUSES’’; 9 (2) in subsection (a), by inserting ‘‘, permanent 10 partner,’’ after ‘‘spouse’’; and 11 (3) in each of subsections (b) and (c)— 12 (A) in each of the subsection headings, by 13 inserting ‘‘, PERMANENT PARTNERS,’’ after 14 ‘‘SPOUSES’’; and 15 (B) by inserting ‘‘, permanent partner,’’ 16 after ‘‘spouse’’ each place it appears. 17 (b) APPLICATION TO CUBAN ADJUSTMENT ACT.— 18 (1) IN GENERAL.—The first section of Public 19 Law 89–732 (8 U.S.C. 1255 note) is amended— 20 (A) in the next to last sentence, by insert- 21 ing ‘‘, permanent partner,’’ after ‘‘spouse’’ the 22 first 2 places it appears; and 23 (B) in the last sentence, by inserting ‘‘, 24 permanent partners,’’ after ‘‘spouses’’. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00597 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 598 •S 1258 IS (2) CONFORMING AMENDMENT.—Section 1 101(a)(51)(D) (8 U.S.C. 1101(a)(51)(D)) is amend- 2 ed by striking ‘‘or spouse’’ and inserting ‘‘, spouse, 3 or permanent partner’’. 4 CHAPTER 3—REFORMS TO SPECIFIC 5 EMPLOYMENT-BASED VISA CATEGORIES 6 Subchapter A—EB–5 Program 7 Reauthorization 8 SEC. 326. PERMANENT REAUTHORIZATION OF EB–5 RE- 9 GIONAL CENTER PROGRAM. 10 (a) SHORT TITLE.—This section may be cited as the 11 ‘‘Creating American Jobs Through Foreign Capital In- 12 vestment Act’’. 13 (b) PERMANENT REAUTHORIZATION.—Section 610 14 of the Departments of Commerce, Justice, and State, the 15 Judiciary, and Related Agencies Appropriations Act, 1993 16 (8 U.S.C. 1153 note) is amended— 17 (1) by striking ‘‘pilot’’ each place such term ap- 18 pears; and 19 (2) in subsection (b), by striking ‘‘until Sep- 20 tember 30, 2012’’. 21 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00598 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 599 •S 1258 IS Subchapter B—Adjustments to Other Select 1 Visa Programs 2 SEC. 331. ELIMINATION OF SUNSET PROVISIONS. 3 (a) SPECIAL IMMIGRANT NONMINISTER RELIGIOUS 4 WORKER PROGRAM.—Section 101(a)(27)(C)(ii) (8 U.S.C. 5 1101 (a)(27)(C)(ii)) is amended by striking ‘‘September 6 30, 2012’’ each place such term appears. 7 (b) CONRAD STATE 30 PROGRAM.—Section 220(c) of 8 the Immigration and Nationality Technical Corrections 9 Act of 1994 (8 U.S.C. 1182 note) is amended by striking 10 ‘‘and before September 30, 2012.’’. 11 SEC. 332. PERMANENT AUTHORIZATION OF THE NON- 12 IMMIGRANT NURSES IN HEALTH PROFES- 13 SIONAL SHORTAGE AREAS PROGRAM. 14 (a) IN GENERAL.—Section 2(e) of the Nursing Relief 15 for Disadvantaged Areas Act of 1999 (8 U.S.C. 1182 16 note) is amended to read as follows: 17 ‘‘(e) APPLICATION OF NONIMMIGRANT CHANGES.— 18 The amendments made by this section shall apply to clas- 19 sification petitions filed for nonimmigrant status only— 20 ‘‘(1) during the period— 21 ‘‘(A) beginning on the date that interim or 22 final regulations are first promulgated under 23 subsection (d); and 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00599 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 600 •S 1258 IS ‘‘(B) ending on the date that is 3 years 1 after the date of the enactment of the Nursing 2 Relief for Disadvantaged Areas Reauthorization 3 Act of 2005; and 4 ‘‘(2) during the period beginning on the date of 5 the enactment of the CIR Act of 2011.’’. 6 (b) INAPPLICABILITY OF CERTAIN REGULATORY RE- 7 QUIREMENTS.—The requirements under chapter 5 of title 8 5, United States Code (commonly referred to as the ‘‘Ad- 9 ministrative Procedure Act’’) or any other law relating to 10 rulemaking, information collection or publication in the 11 Federal Register, shall not apply to any action to imple- 12 ment the amendment made by subsection (a) to the extent 13 the Secretary, the Secretary of Labor, or the Secretary 14 of Health and Human Services determines that compli- 15 ance with any such requirement would impede the expedi- 16 tious implementation of such amendment. 17 SEC. 333. INCENTIVES FOR PHYSICIANS TO PRACTICE IN 18 MEDICALLY UNDERSERVED COMMUNITIES. 19 Section 214 of the Immigration and Nationality Act 20 (8 U.S.C. 1184) is amended— 21 (1) in subsection (g), by adding at the end the 22 following: 23 ‘‘(12) An alien physician described in section 24 212(j)(2)(B) who entered the United States as a non- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00600 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 601 •S 1258 IS immigrant described in section 101(a)(15)(H)(i)(b) to 1 pursue graduate medical education or training shall not 2 be subject to the limitations described in paragraphs (1) 3 and (4). The period of authorized admission of such alien 4 as an H–1B nonimmigrant may not extend beyond the 6- 5 year period beginning on the date on which the alien re- 6 ceives the exemption described in subparagraph (A), other 7 than extensions authorized under section 104 and 106 of 8 the American Competitiveness in the Twenty-First Cen- 9 tury Act of 2000 (Public Law 106–313) if— 10 ‘‘(A) an interested State agency submits a re- 11 quest for an exemption under section 214(l)(1)(B), 12 but not 1 of the 10 waivers or exemptions described 13 in subsection (l)(1)(D)(ii); and 14 ‘‘(B) the Secretary of State recommends that 15 the alien be exempted from such limitations.’’; and 16 (2) in subsection (l)— 17 (A) in paragraph (1)— 18 (i) in the matter preceding subpara- 19 graph (A), by striking ‘‘the Attorney Gen- 20 eral shall not grant such waiver unless’’ 21 and inserting ‘‘or for an exemption from 22 the limitations described in paragraphs (1) 23 and (4) of subsection (g) on behalf of an 24 alien described in subsection (g)(12), the 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00601 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 602 •S 1258 IS Secretary shall not grant such waiver or 1 exemption unless’’; 2 (ii) in subparagraph (A), by inserting 3 ‘‘or exemption’’ before the semicolon at the 4 end; 5 (iii) in subparagraph (B), by striking 6 ‘‘would not cause the number of waivers 7 allotted for that State for that fiscal year 8 to exceed 30’’ and inserting ‘‘or exemption 9 would not cause the total number of waiv- 10 ers plus the total number of exemptions al- 11 lotted for that State for that fiscal year to 12 exceed 30, unless such allotment is in- 13 creased pursuant to paragraph (4)’’; 14 (iv) in subparagraph (C)— 15 (I) in clause (ii), by striking 16 ‘‘within 90 days’’ and all that follows 17 and inserting the following: ″not later 18 than the latest of— 19 ‘‘(II) 90 days after receiving such 20 waiver or exemption; 21 ‘‘(III) 90 days after completing 22 graduate medical education or train- 23 ing in a program approved under sec- 24 tion 212(j)(1); or 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00602 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 603 •S 1258 IS ‘‘(IV) 90 days after receiving 1 nonimmigrant status or employment 2 authorization; 3 ‘‘(iii) the alien agrees to continue to 4 work for a total of not less than 3 years 5 while authorized to work in the United 6 States under this Act, absent extenuating 7 circumstances, including— 8 ‘‘(I) the original interested Fed- 9 eral or State agency that requested 10 the waiver or exemption attests that 11 extenuating circumstances exist; 12 ‘‘(II) the contracting health facil- 13 ity or health care organization attests 14 that the alien’s employment is being 15 terminated through no fault of the 16 alien; 17 ‘‘(III) the contracting health fa- 18 cility or health care organization com- 19 mits a material breach of contract, in- 20 cluding the failure to pay the salary 21 or rate of pay, the failure to provide 22 vacation or other paid leave, or requir- 23 ing the alien to work excess hours in 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00603 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 604 •S 1258 IS violation of an employment agree- 1 ment; 2 ‘‘(IV) the contracting health fa- 3 cility or health care organization is— 4 ‘‘(aa) violating the rules of 5 the Federal agency or State 6 agency that requested the waiver 7 or exemption; or 8 ‘‘(bb) otherwise violating 9 any applicable Federal or State 10 law; 11 ‘‘(V) the closure or anticipated 12 closure of the contracting health facil- 13 ity or health care organization, the 14 termination of the service contract be- 15 tween the contracting health care or- 16 ganization and the health facility 17 worksite for the alien, or the antici- 18 pated inability of the contracting 19 health facility or health care organiza- 20 tion to pay the offered rate of pay to 21 the alien; 22 ‘‘(VI) the failure of the con- 23 tracting health facility or health care 24 organization to support the 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00604 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 605 •S 1258 IS credentialing of the alien in order for 1 the alien to be able to begin employ- 2 ment on the date on which the alien’s 3 employment authorization begins; 4 ‘‘(VII) the alien, or a spouse or 5 child of the alien, experiences unfore- 6 seen health problems that require 7 treatment outside of the approved ge- 8 ographic area; 9 ‘‘(VIII) in the case of employ- 10 ment by an individual physician, the 11 license of the employing physician is 12 suspended or revoked; 13 ‘‘(IX) the contracting health fa- 14 cility or health care organization fails 15 to agree to sponsor the alien for an 16 extension of the alien’s status under 17 section 101(a)(15)(H)(i)(b) in a time- 18 ly manner; or 19 ‘‘(X) the contracting health facil- 20 ity or health care organization en- 21 gages in practices that endanger the 22 health of patients; 23 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00605 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 606 •S 1258 IS ‘‘(iv) contracting health facilities and 1 health care organizations enter into an em- 2 ployment agreement with the alien that— 3 ‘‘(I) specifies the maximum num- 4 ber of on-call hours per week that the 5 alien will be expected to be available 6 and the compensation the alien will 7 receive for on-call time; 8 ‘‘(II) specifies whether the con- 9 tracting health facility or health care 10 organization will pay for the alien’s 11 malpractice insurance premiums; 12 ‘‘(III) specifies whether the em- 13 ployer will provide malpractice tail in- 14 surance and the amount of such in- 15 surance; 16 ‘‘(IV) describes all of the work lo- 17 cations at which the alien will work; 18 ‘‘(V) states that the contracting 19 health facility or health care organiza- 20 tion will not add additional work loca- 21 tions without the approval or the Fed- 22 eral agency or State agency that re- 23 quested the waiver or exemption; and 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00606 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 607 •S 1258 IS ‘‘(VI) does not include liquidated 1 damages provisions; and 2 ‘‘(v) the alien whose employment ter- 3 minates during the 3-year service period is 4 given 120 days to submit an application or 5 petition to commence employment with an- 6 other contracting health facility or health 7 care organization and is considered to be 8 maintaining lawful status in an authorized 9 stay during that period; and’’; and 10 (v) in subparagraph (D)— 11 (I) in clause (ii), by striking 12 ‘‘would not cause the number of the 13 waivers’’ and inserting ‘‘or exemption 14 would not cause the total number of 15 waivers and exemptions’’; and 16 (II) in clause (iii), by inserting 17 ‘‘or exemption’’ after ‘‘waiver’’; 18 (B) in paragraph (2)(A), by inserting ‘‘de- 19 scribed in 212(e)(iii)’’ after ‘‘status of an 20 alien’’; and 21 (C) by adding at the end the following: 22 ‘‘(4)(A) If at least 90 percent of the total number 23 of waivers and exemptions allotted in a fiscal year under 24 paragraph (1)(B) to States that were granted not fewer 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00607 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 608 •S 1258 IS than 5 such waivers or exemptions, in the aggregate, dur- 1 ing any 1 of the 3 previous fiscal years are granted, on 2 a nationwide basis, in such fiscal year, the allotment of 3 such waivers and exemptions in the next fiscal year shall 4 be increased from 30 to 35 for each State. Such allotments 5 shall be further increased by 5 each time such 90 percent 6 threshold of the adjusted allotment level is reached, on a 7 nationwide basis. 8 ‘‘(B) Any increase in allotments under subparagraph 9 (A) shall be maintained indefinitely in future fiscal years, 10 unless the total number of waivers and exemptions grant- 11 ed in a fiscal year is 10 percent lower than in most recent 12 fiscal year in which there was an increase in the number 13 of waivers and exemptions allotted pursuant to this para- 14 graph. In such circumstances— 15 ‘‘(i) the number of waivers and exemptions al- 16 lotted shall be decreased by 5 per State beginning in 17 the next fiscal year; and 18 ‘‘(ii) each additional 10 percent decrease in 19 such waivers and exemptions compared with the 20 most recent fiscal year in which there was an in- 21 crease in the allotment shall decrease by 5 the allot- 22 ment of waivers and exemptions per State, which 23 shall not be lower 30.’’. 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00608 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 609 •S 1258 IS SEC. 334. RETAINING PHYSICIANS IN MEDICALLY UNDER- 1 SERVED COMMUNITIES. 2 Section 201(b)(1) (8 U.S.C. 1151(b)(1)), as amended 3 by this subtitle, is further amended by adding at the end 4 the following: 5 ‘‘(M) Aliens who have completed service re- 6 quirements of a waiver or exemption requested 7 under section 214(l), including aliens who com- 8 pleted such service before the date of the enact- 9 ment of this subparagraph.’’. 10 SEC. 335. TEMPORARY VISAS FOR INDIVIDUALS FROM IRE- 11 LAND. 12 (a) DEFINITION.—Section 101(a)(15)(E)(iii) (8 13 U.S.C. 1101(a)(15)(E)) is amended by inserting ‘‘or solely 14 to perform services as an employee who meets the require- 15 ments of section 203(d)(2) if the alien is a national of 16 the Republic of Ireland’’ after ‘‘Australia’’. 17 (b) TEMPORARY ADMISSION OF INADMISSIBLE 18 ALIENS.—Clause (i) of section 212(a)(d)(3)(A) (8 U.S.C. 19 1182(d)(3)(A)) is amended by inserting before the semi- 20 colon the following: ‘‘provided that such recommendation 21 and approval shall not be required for the issuance of a 22 visa pursuant to section 101(a)(15)(E) for ineligibility 23 under paragraphs (6), (7), or (9) of section 212(a) that 24 is based on conduct occurring prior to the date of enact- 25 ment of this Act’’. 26 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00609 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 610 •S 1258 IS (c) NUMERICAL LIMITATIONS.—Section 1 214(g)(11)(B)(8 U.S.C. 1184(g)(11)(B)) is amended by 2 inserting ‘‘for each of the nationalities included in section 3 101(a)(15)(E)(iii)’’ before the period. 4 CHAPTER 4—MISCELLANEOUS 5 EMPLOYMENT VISA REFORMS 6 SEC. 336. PROVIDING PREMIUM PROCESSING OF EMPLOY- 7 MENT-BASED VISA PETITIONS. 8 Pursuant to section 286(u) of the Immigration and 9 Nationality Act (8 U.S.C. 1356(u)), the Secretary shall 10 establish and collect— 11 (a) a fee for premium processing of employment- 12 based immigrant petitions; and 13 (b) a fee for premium processing of an administrative 14 appeal of any decision on a permanent employment-based 15 immigrant petition. 16 SEC. 337. VISA REVALIDATION. 17 Section 222 (8 U.S.C. 1202) is amended— 18 (1) in subsection (h), in the matter preceding 19 subparagraph (1), by inserting ‘‘and except as pro- 20 vided under subsection (i),’’ after ‘‘Act’’; and 21 (2) by adding at the end the following: 22 ‘‘(i) The Secretary of State shall permit an alien 23 granted a nonimmigrant visa under subparagraph (E), 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00610 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 611 •S 1258 IS (H), (I), (L), (O), or (P) of section 101(a)(15) to apply 1 for a renewal of such visa within the United States if— 2 ‘‘(1) such visa is valid or did not expire more 3 than 12 months before the date of such application; 4 ‘‘(2) the alien is seeking a nonimmigrant visa 5 under the same subparagraph under which the alien 6 had previously received a visa; and 7 ‘‘(3) the alien has complied with the immigra- 8 tion laws of the United States.’’. 9 SEC. 338. APPLICATION FEES FOR INTENDING IMMI- 10 GRANTS. 11 Section 402 of Public Law 111–230 is amended— 12 (1) in subsection (a), by inserting ‘‘and are not 13 intending immigrants’’ before the period at the end; 14 (2) in subsection (b), by inserting ‘‘and are not 15 intending immigrants’’ before the period at the end; 16 and 17 (3) by adding at the end the following: 18 ‘‘(d) Subsections (a) and (b) shall not apply to sea- 19 sonal or intermittent nonimmigrants, and family members 20 of nonimmigrants described in section 101(a)(15)(L). 21 ‘‘(e) For purposes of subsections (a) and (b), the 22 term ‘intending immigrant’ means any alien who intends 23 to work and reside permanently in the United States, as 24 evidenced by— 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00611 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 612 •S 1258 IS ‘‘(1) a pending or approved application for alien 1 employment certification under section 212(a)(5)(A); 2 or 3 ‘‘(2) a pending or approved petition under para- 4 graph (1), (2), or (3) of section 203(b).’’. 5 SEC. 339. EMPLOYMENT OF SPOUSES. 6 Section 214(c)(2)(E) (8 U.S.C. 1184(c)(2)(E)) is 7 amended by striking ‘‘section 101(a)(15)(L)’’ and insert- 8 ing ‘‘subparagraph (H) or (L) of section 101(a)(15)’’. 9 SEC. 340. TIME LIMITS FOR NONIMMIGRANTS TO DEPART 10 THE UNITED STATES. 11 Section 214 (8 U.S.C. 1184) is amended by adding 12 at the end the following: 13 ‘‘(s) SEPARATED EMPLOYEES AND DEPENDENTS.— 14 ‘‘(1) IN GENERAL.—Any alien who ceases to be 15 employed by the alien’s petitioning employer, regard- 16 less of the reason for such separation, shall be auto- 17 matically granted a period of authorized stay equal 18 to 60 days from the date of separation, during which 19 the alien may— 20 ‘‘(A) depart the United States; or 21 ‘‘(B) apply for change or extension of sta- 22 tus. 23 ‘‘(2) SPOUSE AND CHILDREN.— 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00612 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 613 •S 1258 IS ‘‘(A) IN GENERAL.—The spouse and chil- 1 dren of an alien described in paragraph (1) 2 shall be automatically granted a period of au- 3 thorized stay equal to the principal alien em- 4 ployee. 5 ‘‘(B) DEATH OF PRINCIPAL ALIEN EM- 6 PLOYEE.—The spouse and children of a non- 7 immigrant alien who dies shall be entitled to re- 8 tain the dependent nonimmigrant status to 9 which they were eligible at the time of such 10 death until the later of— 11 ‘‘(i) 1 year after such death; or 12 ‘‘(ii) the date on which an adjudica- 13 tion of benefits under section 204(l) is 14 completed.’’. 15 CHAPTER 5—POWER ACT 16 SEC. 341. SHORT TITLES. 17 This chapter may be cited as the ‘‘ Protect Our 18 Workers from Exploitation and Retaliation Act’’ or the 19 ‘‘POWER Act’’. 20 SEC. 342. VICTIMS OF SERIOUS LABOR AND EMPLOYMENT 21 VIOLATIONS OR CRIME. 22 (a) PROTECTION FOR VICTIMS OF LABOR AND EM- 23 PLOYMENT VIOLATIONS.—Section 101(a)(15)(U) (8 24 U.S.C. 1101(a)(15)(U)) is amended— 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00613 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 614 •S 1258 IS (1) in clause (i)— 1 (A) by amending subclause (I) to read as 2 follows: 3 ‘‘(I) the alien— 4 ‘‘(aa) has suffered substantial 5 abuse or harm as a result of having 6 been a victim of criminal activity de- 7 scribed in clause (iii); 8 ‘‘(bb) has suffered substantial 9 abuse or harm related to a violation 10 described in clause (iv); 11 ‘‘(cc) is a victim of criminal ac- 12 tivity described in clause (iii) and 13 would suffer extreme hardship upon 14 removal; or 15 ‘‘(dd) has suffered a violation de- 16 scribed in clause (iv) and would suffer 17 extreme hardship upon removal;’’; 18 (B) in subclause (II), by inserting ‘‘, or a 19 labor or employment violation resulting in a 20 workplace claim described in clause (iv)’’ before 21 the semicolon at the end; 22 (C) in subclause (III)— 23 (i) by striking ‘‘or State judge, to the 24 Service’’ and inserting ‘‘, State, or local 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00614 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 615 •S 1258 IS judge, to the Department of Homeland Se- 1 curity, to the Equal Employment Oppor- 2 tunity Commission, to the Department of 3 Labor, to the National Labor Relations 4 Board’’; and 5 (ii) by inserting ‘‘, or investigating, 6 prosecuting, or seeking civil remedies for a 7 labor or employment violation related to a 8 workplace claim described in clause (iv)’’ 9 before the semicolon at the end; and 10 (D) in subclause (IV)— 11 (i) by inserting ‘‘(aa)’’ after ‘‘(IV)’’; 12 and 13 (ii) by adding at the end the fol- 14 lowing: ‘‘or 15 ‘‘(bb) a workplace claim described in 16 clause (iv) resulted from a labor or employ- 17 ment violation;’’; 18 (2) in clause (ii)(II), by striking ‘‘and’’ at the 19 end; 20 (3) by moving clause (iii) 2 ems to the left; 21 (4) in clause (iii), by striking ‘‘or’’ at the end 22 and inserting ‘‘and’’; and 23 (5) by adding at the end the following: 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00615 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 616 •S 1258 IS ‘‘(iv) in the labor or employment violation 1 related to a workplace claim, the alien— 2 ‘‘(I) has filed, is a material witness in, 3 or is likely to be helpful in the investiga- 4 tion of, a bona fide workplace claim (as de- 5 fined in section 274A(e)(10)(C)(iii)(II)); 6 and 7 ‘‘(II) reasonably fears, has been 8 threatened with, or has been the victim of, 9 an action involving force, physical re- 10 straint, retaliation, or abuse of the immi- 11 gration or other legal process against the 12 alien or another person by the employer in 13 relation to acts underlying the workplace 14 claim or related to the filing of the work- 15 place claim; or’’. 16 (b) TEMPORARY PROTECTION FOR VICTIMS OF 17 CRIME, LABOR, AND EMPLOYMENT VIOLATIONS.—Not- 18 withstanding any other provision of law, the Secretary 19 may permit an alien to temporarily remain in the United 20 States and grant the alien employment authorization if the 21 Secretary determines that the alien— 22 (1) has filed for relief under section 23 101(a)(15)(U) of the Immigration and Nationality 24 Act (8 U.S.C. 1101(a)(15)(U)); or 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00616 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 617 •S 1258 IS (2)(A) has filed, or is a material witness to, a 1 bona fide workplace claim (as defined in section 2 274A(e)(10)(B)(iii)(II) of such Act, as added by sec- 3 tion 3(b)); and 4 (B) has been helpful, is being helpful, or is like- 5 ly to be helpful to— 6 (i) a Federal, State, or local law enforce- 7 ment official; 8 (ii) a Federal, State, or local prosecutor; 9 (iii) a Federal, State, or local judge; 10 (iv) the Department of Homeland Security; 11 (v) the Equal Employment Opportunity 12 Commission; 13 (vi) the Department of Labor; 14 (vii) the National Labor Relations Board; 15 or 16 (viii) other Federal, State, or local authori- 17 ties investigating, prosecuting, or seeking civil 18 remedies related to the workplace claim. 19 (c) CONFORMING AMENDMENTS.—Section 214(p) (8 20 U.S.C. 1184(p)) is amended— 21 (1) in paragraph (1), by inserting ‘‘or inves- 22 tigating, prosecuting, or seeking civil remedies for 23 workplace claims described in section 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00617 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 618 •S 1258 IS 101(a)(15)(U)(iv)’’ after ‘‘section 1 101(a)(15)(U)(iii)’’ each place such term appears; 2 (2) in paragraph (2)(A), by striking ‘‘10,000’’ 3 and inserting ‘‘30,000’’; and 4 (3) in paragraph (6)— 5 (A) by inserting ‘‘or workplace claims de- 6 scribed in section 101(a)(15)(U)(iv)’’ after ‘‘de- 7 scribed in section 101(a)(15)(U)(iii)’’; and 8 (B) by inserting ‘‘or workplace claim’’ 9 after ‘‘prosecution of such criminal activity’’. 10 (d) ADJUSTMENT OF STATUS FOR VICTIMS OF 11 CRIMES.—Section 245(m)(1) (8 U.S.C. 1255(m)(1)) is 12 amended by inserting ‘‘or an investigation or prosecution 13 regarding a workplace claim’’ after ‘‘prosecution’’. 14 (e) CHANGE OF NONIMMIGRANT CLASSIFICATION.— 15 Section 384(a)(1) of the Illegal Immigration Reform and 16 Immigrant Responsibility Act of 1996 (8 U.S.C. 17 1367(a)(1)) is amended— 18 (1) in subparagraph (E), by striking ‘‘physical 19 or mental abuse and the criminal activity,’’ and in- 20 serting ‘‘abuse and the criminal activity or work- 21 place claim;’’; 22 (2) in subparagraph (F), by striking the comma 23 at the end and inserting ‘‘; or’’; and 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00618 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 619 •S 1258 IS (3) by inserting after subparagraph (F) the fol- 1 lowing: 2 ‘‘(G) the alien’s employer,’’. 3 SEC. 343. LABOR ENFORCEMENT ACTIONS. 4 (a) REMOVAL PROCEEDINGS.—Section 239(e) (8 5 U.S.C. 1229(e)) is amended— 6 (1) in paragraph (1)— 7 (A) by striking ‘‘In cases where’’ and in- 8 serting ‘‘If’’; and 9 (B) by inserting ‘‘or as a result of informa- 10 tion provided to the Department of Homeland 11 Security in retaliation against individuals for 12 exercising or attempting to exercise their em- 13 ployment rights or other legal rights’’ after 14 ‘‘paragraph (2)’’; and 15 (2) in paragraph (2), by adding at the end the 16 following: 17 ‘‘(C) At a facility about which a workplace 18 claim has been filed or is contemporaneously 19 filed.’’. 20 (b) UNLAWFUL EMPLOYMENT OF ALIENS.—Section 21 274A(e) (8 U.S.C. 1324a(e)) is amended by adding at the 22 end the following: 23 ‘‘(10) CONDUCT IN ENFORCEMENT ACTIONS.— 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00619 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 620 •S 1258 IS ‘‘(A) ENFORCEMENT ACTION.—If the De- 1 partment of Homeland Security undertakes an 2 enforcement action at a facility about which a 3 workplace claim has been filed or is contem- 4 poraneously filed, or as a result of information 5 provided to the Department in retaliation 6 against employees for exercising their rights re- 7 lated to a workplace claim, the Department 8 shall ensure that— 9 ‘‘(i) any aliens arrested or detained 10 who are necessary for the investigation or 11 prosecution of workplace claim violations 12 or criminal activity (as described in sub- 13 paragraph (T) or (U) of section 14 101(a)(15)) are not removed from the 15 United States until after the Depart- 16 ment— 17 ‘‘(I) notifies the appropriate law 18 enforcement agency with jurisdiction 19 over such violations or criminal activ- 20 ity; and 21 ‘‘(II) provides such agency with 22 the opportunity to interview such 23 aliens; and 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00620 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 621 •S 1258 IS ‘‘(ii) no aliens entitled to a stay of re- 1 moval or abeyance of removal proceedings 2 under this section are removed. 3 ‘‘(B) PROTECTIONS FOR VICTIMS OF 4 CRIME, LABOR, AND EMPLOYMENT VIOLA- 5 TIONS.— 6 ‘‘(i) STAY OF REMOVAL OR ABEYANCE 7 OF REMOVAL PROCEEDINGS.—An alien 8 against whom removal proceedings have 9 been initiated under chapter 4 of title II, 10 who has filed a workplace claim, who is a 11 material witness in any pending or antici- 12 pated proceeding involving a bona fide 13 workplace claim, or who has filed for relief 14 under section 101(a)(15)(U), shall be enti- 15 tled to a stay of removal or an abeyance of 16 removal proceedings and to employment 17 authorization until the resolution of the 18 workplace claim or the denial of relief 19 under section 101(a)(15)(U) after exhaus- 20 tion of administrative appeals, whichever is 21 later, unless the Department establishes, 22 by a preponderance of the evidence in pro- 23 ceedings before the immigration judge pre- 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00621 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 622 •S 1258 IS siding over that alien’s removal hearing, 1 that— 2 ‘‘(I) the alien has been convicted 3 of a felony; or 4 ‘‘(II) the workplace claim was 5 filed in a bad faith with the intent to 6 delay or avoid the alien’s removal. 7 ‘‘(ii) DURATION.—Any stay of re- 8 moval or abeyance of removal proceedings 9 and employment authorization issued pur- 10 suant to clause (i) shall remain valid until 11 the resolution of the workplace claim or 12 the denial of relief under section 13 101(a)(15)(U) after the exhaustion of ad- 14 ministrative appeals, and shall be extended 15 by the Secretary of Homeland Security for 16 a period of not longer than 3 additional 17 years upon determining that— 18 ‘‘(I) such relief would enable the 19 alien asserting a workplace claim to 20 pursue the claim to resolution; 21 ‘‘(II) the deterrent goals of any 22 statute underlying a workplace claim 23 would be served; or 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00622 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 623 •S 1258 IS ‘‘(III) such extension would oth- 1 erwise further the interests of justice. 2 ‘‘(iii) DEFINITIONS.—In this section: 3 ‘‘(I) MATERIAL WITNESS.—Not- 4 withstanding any other provision of 5 law, the term ‘material witness’ means 6 an individual who presents a declara- 7 tion from an attorney investigating, 8 prosecuting, or defending the work- 9 place claim or from the presiding offi- 10 cer overseeing the workplace claim at- 11 testing that, to the best of the declar- 12 ant’s knowledge and belief, reasonable 13 cause exists to believe that the testi- 14 mony of the individual will be relevant 15 to the outcome of the workplace claim. 16 ‘‘(II) WORKPLACE CLAIM.—The 17 term ‘workplace claim’ means any 18 written or oral claim, charge, com- 19 plaint, or grievance filed with, commu- 20 nicated to, or submitted to the em- 21 ployer, a Federal, State, or local agen- 22 cy or court, or an employee represent- 23 ative related to the violation of appli- 24 cable Federal, State, and local labor 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00623 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 624 •S 1258 IS laws, including laws concerning wages 1 and hours, labor relations, family and 2 medical leave, occupational health and 3 safety, or nondiscrimination.’’. 4 SEC. 344. AUTHORIZATION OF APPROPRIATIONS. 5 There are authorized to be appropriated such sums 6 as may be necessary to carry out this chapter and the 7 amendments made by this chapter. 8 Subtitle D—Immigrant Integration 9 and Other Reforms 10 PART I—STRENGTHEN AND UNITE COMMUNITIES 11 WITH CIVICS EDUCATION AND ENGLISH SKILLS 12 CHAPTER 1—EXPANDING ENGLISH LIT- 13 ERACY, UNITED STATES HISTORY, AND 14 CIVICS EDUCATION 15 SEC. 351. INCREASED INVESTMENT IN ENGLISH LITERACY, 16 UNITED STATES HISTORY, AND CIVICS EDU- 17 CATION UNDER THE ADULT EDUCATION AND 18 FAMILY LITERACY ACT. 19 (a) INTEGRATED ENGLISH LITERACY AND CIVICS 20 EDUCATION PROGRAM.—Section 203 of the Adult Edu- 21 cation and Family Literacy Act (20 U.S.C. 9202) is 22 amended— 23 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00624 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 625 •S 1258 IS (1) by redesignating paragraphs (12) through 1 (18) as paragraphs (13) through (19), respectively; 2 and 3 (2) by inserting after paragraph (11), the fol- 4 lowing: 5 ‘‘(12) INTEGRATED ENGLISH LITERACY, 6 UNITED STATES HISTORY, AND CIVICS EDUCATION 7 PROGRAM.—The term ‘integrated English literacy, 8 United States history, and civics education program’ 9 means a program of instruction designed to help an 10 English language learner achieve competence in 11 English through contextualized instruction on the 12 rights and responsibilities of citizenship, naturaliza- 13 tion procedures, civic participation, and United 14 States history and Government to help such learner 15 acquire the skills and knowledge to become an active 16 and informed parent, worker, and community mem- 17 ber.’’. 18 (b) STATE LEADERSHIP ACTIVITIES.—Section 19 223(a) of the Adult Education and Family Literacy Act 20 (20 U.S.C. 9223(a)) is amended by inserting after para- 21 graph (11) the following: 22 ‘‘(12) Technical assistance for grant applica- 23 tions of faith- and community-based organizations.’’. 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00625 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 626 •S 1258 IS (c) NATIONAL INSTITUTE FOR LITERACY.—Section 1 242(c)(1) of the Adult Education and Family Literacy Act 2 (20 U.S.C. 9252(c)(1)) is amended— 3 (1) by redesignating subparagraphs (G), (H), 4 and (I), as subparagraphs (I), (J), and (K), respec- 5 tively; and 6 (2) by inserting after subparagraph (F) the fol- 7 lowing: 8 ‘‘(G) to coordinate and share information 9 with national organizations and associations 10 that are interested in integrated English lit- 11 eracy, United States history, and civics edu- 12 cation programs; 13 ‘‘(H) to study the effectiveness of distance 14 learning or self-study programs in assisting the 15 English language learner population achieve 16 competence in English;’’. 17 (d) REPORT.—Section 242(k) of the Adult Education 18 and Family Literacy Act (20 U.S.C. 9252(k)) is amend- 19 ed— 20 (1) in paragraph (2), by striking ‘‘and’’ at the 21 end; 22 (2) by redesignating paragraph (3) as para- 23 graph (4); and 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00626 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 627 •S 1258 IS (3) by inserting after paragraph (2) the fol- 1 lowing: 2 ‘‘(3) a separate analysis of— 3 ‘‘(A) national and State adult English in- 4 struction needs; 5 ‘‘(B) data on the composition of recent im- 6 migration flows and immigration settlement 7 patterns throughout the United States; and 8 ‘‘(C) estimated instructional needs based 9 on the English ability and educational attain- 10 ment of English language learners under recent 11 migration patterns; and’’. 12 (e) NATIONAL LEADERSHIP ACTIVITIES.—Section 13 243 of the Adult Education and Family Literacy Act (20 14 U.S.C. 9253) is amended— 15 (1) in paragraph (1)— 16 (A) in subparagraph (A), by inserting 17 ‘‘and integrated English literacy, United States 18 history, and civics education programs’’ before 19 the semicolon at the end; and 20 (B) in subparagraph (B), by inserting 21 ‘‘and integrated English literacy, United States 22 history, and civics education programs’’ before 23 ‘‘, based on scientific evidence’’; and 24 (2) in paragraph (2)— 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00627 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 628 •S 1258 IS (A) in subparagraph (B), by inserting 1 ‘‘and integrated English literacy, United States 2 history, and civics education programs’’ before 3 the semicolon at the end; 4 (B) in subparagraph (D)(ii), by inserting 5 ‘‘integrated English literacy, United States his- 6 tory, and civics education programs,’’ before 7 ‘‘and workplace literacy programs’’; and 8 (C) in subparagraph (E)— 9 (i) in clause (i), by inserting ‘‘and in- 10 tegrated English literacy, United States 11 history, and civics education programs’’ be- 12 fore the semicolon at the end; 13 (ii) in clause (iii), by striking ‘‘and’’ 14 at the end; 15 (iii) in clause (iv)— 16 (I) by striking ‘‘section 231’’ and 17 inserting ‘‘sections 231 and 244’’; and 18 (II) by adding ‘‘and’’ at the end; 19 and 20 (iv) by adding at the end the fol- 21 lowing: 22 ‘‘(v) the extent to which integrated 23 English literacy, United States history, 24 and civics education programs carried out 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00628 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 629 •S 1258 IS under section 244 lead participants in such 1 programs to increase their civic participa- 2 tion and, if applicable, lead such partici- 3 pants to become United States citizens;’’. 4 (f) INTEGRATED ENGLISH LITERACY, UNITED 5 STATES HISTORY, AND CIVICS EDUCATION.—Chapter 4 6 of subtitle A of the Adult Education and Family Literacy 7 Act (20 U.S.C. 9251 et seq.) is amended by adding at 8 the end the following: 9 ‘‘SEC. 244. INTEGRATED ENGLISH LITERACY, UNITED 10 STATES HISTORY, AND CIVICS EDUCATION 11 PROGRAMS. 12 ‘‘(a) PROGRAM AUTHORIZED.—The Secretary shall 13 award grants to States, from allocations under subsection 14 (b), for integrated English literacy, United States history, 15 and civics education programs. 16 ‘‘(b) ALLOCATIONS.— 17 ‘‘(1) IN GENERAL.—Subject to paragraph (2), 18 the Secretary shall allocate for each fiscal year, from 19 the amount appropriated pursuant to subsection (c) 20 for such fiscal year— 21 ‘‘(A) 65 percent of such amount to States 22 on the basis of a State’s need for integrated 23 English, United States history, and civics edu- 24 cation programs, as determined by calculating 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00629 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 630 •S 1258 IS each State’s share of a 10-year average of the 1 data compiled by the Office of Immigration Sta- 2 tistics of the Department of Homeland Secu- 3 rity, for immigrants admitted for lawful perma- 4 nent residence during the 10 most recent fiscal 5 years; and 6 ‘‘(B) 35 percent of such amount to the 7 States on the basis of whether the State experi- 8 enced growth, as measured by the average of 9 the 3 most recent years for which data compiled 10 by the Office of Immigration Statistics of the 11 Department of Homeland Security are avail- 12 able, for immigrants admitted for lawful perma- 13 nent residence. 14 ‘‘(2) MINIMUM.—Each State shall receive an al- 15 location under paragraph (1) in an amount that is 16 not less than $60,000. 17 ‘‘(c) AUTHORIZATION OF APPROPRIATION.—There 18 are authorized to be appropriated to carry out this sec- 19 tion— 20 ‘‘(1) $200,000,000 for fiscal year 2012; 21 ‘‘(2) $250,000,000 for fiscal year 2013; and 22 ‘‘(3) $300,000,000 for fiscal year 2014.’’. 23 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00630 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 631 •S 1258 IS SEC. 352. DEFINITIONS OF ENGLISH LANGUAGE LEARNER. 1 (a) ADULT EDUCATION AND FAMILY LITERACY 2 ACT.—The Adult Education and Family Literacy Act (20 3 U.S.C. 9201 et seq.) is amended— 4 (1) in section 203 (20 U.S.C. 9202)— 5 (A) by redesignating paragraphs (6), (7), 6 (8), (9), and (10), as paragraphs (7), (8), (9), 7 (10), and (6), respectively; 8 (B) in paragraph (6), as redesignated— 9 (i) in the paragraph heading, by strik- 10 ing ‘‘INDIVIDUAL OF LIMITED ENGLISH 11 PROFICIENCY’’ and inserting ‘‘ENGLISH 12 LANGUAGE LEARNER’’; and 13 (ii) in the matter preceding subpara- 14 graph (A), by striking ‘‘individual of lim- 15 ited English proficiency’’ and inserting 16 ‘‘English language learner’’; and 17 (C) in paragraph (7), as redesignated, by 18 striking ‘‘individuals of limited English pro- 19 ficiency’’ and inserting ‘‘English language 20 learners’’; 21 (2) in section 224(b)(10)(D) (20 U.S.C. 22 9224(b)(10)(D)), by striking ‘‘individuals with lim- 23 ited English proficiency’’ and inserting ‘‘English lan- 24 guage learners’’; and 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00631 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 632 •S 1258 IS (3) in section 243(2)(D)(ii) (20 U.S.C. 1 9253(2)(D)(ii)), by striking ‘‘individuals with limited 2 English proficiency who are adults’’ and inserting 3 ‘‘adult English language learners’’. 4 (b) ELEMENTARY AND SECONDARY EDUCATION ACT 5 OF 1965.— 6 (1) AMENDMENT.—Section 9101(25) of the El- 7 ementary and Secondary Education Act of 1965 (20 8 U.S.C. 7801(25)) is amended by striking the matter 9 preceding subparagraph (A) and inserting the fol- 10 lowing: 11 ‘‘(25) ENGLISH LANGUAGE LEARNER.—The 12 term ‘English language learner’ means an indi- 13 vidual—’’. 14 (2) REFERENCES.—Any reference in the Ele- 15 mentary and Secondary Education Act of 1965 (20 16 U.S.C. 6301 et seq.) to an individual who is limited 17 English proficient shall be construed to refer to an 18 English language learner. 19 SEC. 353. CREDITS FOR TEACHERS OF ENGLISH LANGUAGE 20 LEARNERS. 21 (a) IN GENERAL.—Subpart A of part IV of sub- 22 chapter A of chapter 1 of the Internal Revenue Code of 23 1986 (relating to nonrefundable personal credits) is 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00632 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 633 •S 1258 IS amended by inserting after section 25D the following new 1 section: 2 ‘‘SEC. 25E. TEACHERS OF ENGLISH LANGUAGE LEARNERS. 3 ‘‘(a) IN GENERAL.—In the case of an eligible teacher, 4 there shall be allowed a credit against the tax imposed 5 by this chapter for the taxable year an amount equal to— 6 ‘‘(1) $750, for each of the first 5 taxable years 7 for which the taxpayer is allowed a credit under this 8 section; and 9 ‘‘(2) $500, for any other taxable year. 10 ‘‘(b) CREDIT ALLOWED ONLY FOR 10 TAXABLE 11 YEARS.—No credit shall be allowed under this section 12 with respect to a taxpayer for any taxable year after the 13 10th taxable year for which such taxpayer is allowed a 14 credit under this section. 15 ‘‘(c) ELIGIBLE TEACHER DEFINED.— 16 ‘‘(1) IN GENERAL.—Except as provided in para- 17 graph (2), the term ‘eligible teacher’ means, with re- 18 spect to a taxable year, any individual who is— 19 ‘‘(A) a full-time teacher of English as a 20 second language or bilingual instruction for the 21 academic year ending in such taxable year; or 22 ‘‘(B) an eligible part-time teacher of 23 English as a second language or bilingual in- 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00633 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 634 •S 1258 IS struction for the academic year ending in such 1 taxable year. 2 ‘‘(2) ELIGIBLE PART-TIME TEACHER.—The 3 term ‘eligible part-time teacher’ means, with respect 4 to a taxable year, an individual who teaches at least 5 20 hours per week during the academic year ending 6 in such taxable year. Such term does not include any 7 individual who is a full-time teacher of English as a 8 second language during such academic year. 9 ‘‘(3) SPECIAL RULE.—In the case of an eligible 10 part-time teacher, subsection (a) shall be applied by 11 substituting ‘$375’ for ‘$750’ and by substituting 12 ‘$250’ for ‘$500’.’’. 13 (b) CLERICAL AMENDMENT.—The table of sections 14 for such subpart is amended by inserting after the item 15 relating to section 25D the following: 16 ‘‘Sec. 25E. Teachers of English language learners.’’. (c) TEACHER CERTIFICATION EXPENSES.—Part VII 17 of subchapter B of chapter 1 of the Internal Revenue Code 18 of 1986 (relating to additional itemized deductions for in- 19 dividuals) is amended by redesignating section 224 as sec- 20 tion 225 and by inserting after section 223 the following: 21 ‘‘SEC. 224. CERTIFICATION EXPENSES FOR TEACHERS OF 22 ENGLISH LANGUAGE LEARNERS. 23 ‘‘(a) IN GENERAL.—In the case of an individual, 24 there shall be allowed a deduction for eligible teacher cer- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00634 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 635 •S 1258 IS tification expenses paid or incurred by the taxpayer for 1 the taxable year. 2 ‘‘(b) ELIGIBLE TEACHER CERTIFICATION EX- 3 PENSES.—The term ‘eligible teacher certification ex- 4 penses’— 5 ‘‘(1) means the tuition and fees required for the 6 enrollment or attendance of the taxpayer at an eligi- 7 ble educational institution (as defined in section 8 25A) for a course which is required for certification 9 or licensure of such individual as qualified to provide 10 English as a second language or bilingual instruction 11 to elementary or secondary school students who are 12 limited English proficient (as defined in section 13 9901 of the Elementary and Secondary Education 14 Act of 1965); and 15 ‘‘(2) shall not include any amounts that are— 16 ‘‘(A) used for a course that is part of the 17 individual’s degree program; or 18 ‘‘(B) funded by another person or any gov- 19 ernmental entity. 20 ‘‘(c) DENIAL OF DOUBLE BENEFIT.—No deduction 21 shall be allowed under this section for any expense for 22 which a deduction or credit is allowed under any other 23 provision of this chapter. 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00635 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 636 •S 1258 IS ‘‘(d) TERMINATION.—This section shall not apply to 1 expenses paid or incurred after December 31, 2014.’’. 2 (d) CERTIFICATION DEDUCTION ALLOWED WHETH- 3 ER OR NOT TAXPAYER ITEMIZES OTHER DEDUCTIONS.— 4 Subsection (a) of section 62 of such Code is amended by 5 inserting after paragraph (21) the following new para- 6 graph: 7 ‘‘(22) TEACHER CERTIFICATION EXPENSES.— 8 The deduction allowed by section 224.’’. 9 (e) CLERICAL AMENDMENT.—The table of sections 10 for part VII of subchapter B of chapter 1 of such Code 11 is amended by striking the last item and inserting the fol- 12 lowing: 13 ‘‘Sec. 224. Certification expenses for teachers of English language learners. ‘‘Sec. 225. Cross reference.’’. (f) REGULATIONS.—Not later than 180 days after 14 the date of the enactment of this Act, the Secretary of 15 the Treasury shall promulgate regulations implementing 16 the provisions of this section. 17 (g) EFFECTIVE DATE.—The amendments made by 18 this section shall apply to taxable years beginning after 19 the date of the enactment of this Act. 20 SEC. 354. RESEARCH IN ADULT EDUCATION. 21 (a) IN GENERAL.—Section 133(c)(2)(A) of the Edu- 22 cation Sciences Reform Act of 2002 (20 U.S.C. 23 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00636 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 637 •S 1258 IS 9533(c)(2)(A)) is amended by inserting ‘‘education and’’ 1 before ‘‘literacy’’. 2 (b) NATIONAL RESEARCH AND DEVELOPMENT CEN- 3 TER.— 4 (1) IN GENERAL.—The Secretary of Education 5 shall direct the Commissioner for Education Re- 6 search of the National Center for Education Re- 7 search established pursuant to section 131 of the 8 Education Sciences Reform Act of 2002 (20 U.S.C. 9 9531) to establish a national research and develop- 10 ment center for adult education and literacy (as de- 11 scribed in section 133(c)(2)(A) of such Act). 12 (2) PROVISION FOR EXPANSION OF RE- 13 SEARCH.—If, as of the date of the enactment of this 14 Act, the Commissioner has established a center for 15 adult literacy in accordance with section 16 133(c)(2)(A) of the Education Sciences Reform Act 17 of 2002 (20 U.S.C. 9533(c)(2)(A)), the Commis- 18 sioner shall expand the topic of research of such cen- 19 ter to include adult education, in accordance with 20 the amendment made by subsection (a). 21 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00637 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 638 •S 1258 IS CHAPTER 2—SUPPORTING ENGLISH LAN- 1 GUAGE ACQUISITION AND ADULT EDU- 2 CATION IN THE WORKFORCE 3 SEC. 356. CREDIT FOR EMPLOYER-PROVIDED ADULT 4 ENGLISH LITERACY AND BASIC EDUCATION 5 PROGRAMS. 6 (a) IN GENERAL.—Subpart D of part IV of sub- 7 chapter A of chapter 1 of the Internal Revenue Code of 8 1986 (relating to business related credits) is amended by 9 adding at the end the following: 10 ‘‘SEC. 45R. EMPLOYER-PROVIDED ADULT ENGLISH LIT- 11 ERACY AND BASIC EDUCATION PROGRAMS. 12 ‘‘(a) IN GENERAL.—For the purposes of section 38, 13 the credit determined under this section with respect to 14 any employer for the taxable year is an amount equal to 15 20 percent of qualified education program expenses, but 16 in no case shall the employer receive a credit in an amount 17 of more than $1,000 per full-time employee participating 18 in the qualified education program. 19 ‘‘(b) QUALIFIED EDUCATION PROGRAM EX- 20 PENSES.—For purposes of this section: 21 ‘‘(1) IN GENERAL.—The term ‘qualified edu- 22 cation program expenses’ means expenses paid or in- 23 curred by an employer to make available qualified 24 education to employees of the employer, who— 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00638 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 639 •S 1258 IS ‘‘(A) are English language learners; and 1 ‘‘(B)(i) have not received a secondary 2 school diploma, or its recognized equivalent; or 3 ‘‘(ii) lack sufficient mastery of basic edu- 4 cational skills, including financial literacy, to 5 enable the individuals to function effectively in 6 society. 7 ‘‘(2) QUALIFIED EDUCATION.—The term ‘quali- 8 fied education’ means adult education and literacy 9 activities provided— 10 ‘‘(A) by an eligible provider which for the 11 fiscal year ending during the employer’s taxable 12 year receives or is eligible to receive Federal 13 funds under section 231 of the Adult Education 14 and Family Literacy Act (20 U.S.C. 9241) for 15 adult education and literacy activities; or 16 ‘‘(B) in curriculum approved by the De- 17 partment of Education, the Employment and 18 Training Administration of the Department of 19 Labor, or in current use by a Federal agency. 20 ‘‘(3) ELIGIBLE PROVIDER; ADULT EDUCATION 21 AND LITERACY ACTIVITIES.—The terms ‘eligible pro- 22 vider’ and ‘adult education and literacy activities’ 23 have the respective meanings given to such terms in 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00639 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 640 •S 1258 IS section 203 of the Adult Education and Family Lit- 1 eracy Act (20 U.S.C. 9202). 2 ‘‘(4) ENGLISH LANGUAGE LEARNER.—The term 3 ‘English language learner’ has the same meaning 4 given such term in section 9101(25) of the Elemen- 5 tary and Secondary Education Act of 1965. 6 ‘‘(c) SPECIAL RULES.—For purposes of this section: 7 ‘‘(1) FULL-TIME EMPLOYMENT.—An employee 8 shall be considered full-time if such employee is em- 9 ployed at least 30 hours per week for 25 or more 10 calendar weeks in the taxable year. 11 ‘‘(2) AGGREGATION RULE.—All persons treated 12 as a single employer under subsection (a) or (b) or 13 section 52, or subsection (m) or (o) of section 414, 14 shall be treated as 1 person. 15 ‘‘(d) DENIAL OF DOUBLE BENEFIT.—No deduction 16 or credit shall be allowed under any other provision of this 17 chapter for any amount taken into account in determining 18 the credit under this section. 19 ‘‘(e) ELECTION TO HAVE CREDIT NOT APPLY.—A 20 taxpayer may elect (at such time and in such manner as 21 the Secretary may by regulations prescribe) to have this 22 section not apply for any taxable year. 23 ‘‘(f) TERMINATION.—This section shall not apply to 24 expenses paid or incurred after December 31, 2014.’’. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00640 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 641 •S 1258 IS (b) CREDIT TO BE PART OF GENERAL BUSINESS 1 CREDIT.—Subsection (b) of section 38 of such Code (re- 2 lating to the current year business credit) is amended— 3 (1) by striking ‘‘plus’’ at the end of paragraph 4 (34); 5 (2) by striking the period at the end of para- 6 graph (35) and inserting ‘‘, plus’’; and 7 (3) by adding at the end the following new 8 paragraph: 9 ‘‘(36) the adult English literacy and basic edu- 10 cation programs credit determined under section 11 45R.’’. 12 (c) CLERICAL AMENDMENT.—The table of sections 13 for subpart D of part IV of subchapter A of chapter 1 14 of the such Code is amended by adding at the end the 15 following new item: 16 ‘‘Sec. 45R. Employer-provided adult English literacy and basic education pro- grams.’’. (d) REGULATIONS.—Not later than 180 days after 17 the date of the enactment of this Act, the Secretary of 18 the Treasury shall promulgate regulations implementing 19 the provisions of this section. 20 (e) EFFECTIVE DATE.—The amendments made by 21 this section shall apply to taxable years beginning after 22 December 31 of the year in which this Act was enacted. 23 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00641 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 642 •S 1258 IS SEC. 357. PRESIDENTIAL AWARD FOR BUSINESS LEADER- 1 SHIP IN PROMOTING UNITED STATES CITI- 2 ZENSHIP. 3 (a) ESTABLISHMENT.—The Presidential Award for 4 Business Leadership in Promoting United States Citizen- 5 ship (referred to in this section as the ‘‘Presidential Citi- 6 zenship Award’’) shall be awarded by the President to 7 companies and other organizations that make extraor- 8 dinary efforts in assisting their employees and members 9 to learn English and increase their understanding of 10 United States history and civics. 11 (b) SELECTION AND PRESENTATION OF AWARD.— 12 (1) SELECTION.—The President, after review- 13 ing recommendations from the Secretary of Home- 14 land Security and the Secretary of Commerce, shall 15 periodically award the Presidential Citizenship 16 Award to large and small companies and other orga- 17 nizations described in subsection (a). 18 (2) PRESENTATION.—The presentation of the 19 Presidential Citizenship Award shall be made by the 20 President, or a designee of the President, in con- 21 junction with an appropriate ceremony. 22 CHAPTER 3—BUILDING STRONGER 23 COMMUNITIES 24 SEC. 361. OFFICE OF CITIZENSHIP AND NEW AMERICANS. 25 (a) RENAMING THE OFFICE OF CITIZENSHIP.— 26 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00642 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 643 •S 1258 IS (1) IN GENERAL.—Beginning on the date of the 1 enactment of this Act, the Office of Citizenship of 2 United States Citizenship and Immigration Services 3 shall be referred to as the ‘‘Office of Citizenship and 4 New Americans’’. 5 (2) CONFORMING AMENDMENTS.—Section 6 451(f) of the Homeland Security Act of 2002 (6 7 U.S.C. 271(f)) is amended— 8 (A) in the subsection heading, by striking 9 ‘‘Citizenship.’’ and inserting ‘‘Citizenship and 10 New Americans.’’; 11 (B) in paragraph (1), by inserting ‘‘and 12 New Americans’’ after ‘‘Office of Citizenship’’; 13 and 14 (C) in paragraph (2), by inserting ‘‘and 15 New Americans’’ after ‘‘Office of Citizenship’’. 16 (3) REFERENCES.—Any reference in a law, reg- 17 ulation, document, paper, or other record of the 18 United States to the Office of Citizenship within 19 United States Citizenship and Immigration Services 20 shall be deemed to be a reference to the ‘‘Office of 21 Citizenship and New Americans’’. 22 (b) FUNCTIONS.—Section 451(f)(2) of the Homeland 23 Security Act of 2002 (6 U.S.C. 271(f)(2)), as amended 24 by subsection (a)(2)(C), is further amended by striking 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00643 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 644 •S 1258 IS ‘‘for promoting’’ and all that follows through the period 1 at the end and inserting the following: ‘‘for— 2 ‘‘(A) establishing national goals for intro- 3 ducing new immigrants into the United States 4 and measuring the degree to which such goals 5 are met; 6 ‘‘(B) assessing and coordinating Federal 7 policies, regulations, task forces, and commis- 8 sions related to introducing immigrants into the 9 United States; 10 ‘‘(C) continuing with the efforts of the 11 Task Force on New Americans established 12 under Executive Order 13404— 13 ‘‘(i) to facilitate a dialogue among 14 Federal agencies; 15 ‘‘(ii) make recommendations to the 16 President; and 17 ‘‘(iii) follow through with initiatives 18 administered by the Task Force under the 19 authority of such Executive Order; 20 ‘‘(D) serving as a liaison and intermediary 21 with State and local governments and other en- 22 tities to assist in establishing local goals, task 23 forces, and councils to assist in introducing im- 24 migrants into the United States; 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00644 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 645 •S 1258 IS ‘‘(E) coordinating with other Federal agen- 1 cies to provide information to State and local 2 governments on the demand for English acqui- 3 sition programs and best practices in place on 4 the Federal and State level for immigrants who 5 have recently arrived in the United States; 6 ‘‘(F) assisting States in coordinating ac- 7 tivities with the grant program carried out 8 under this subtitle; and 9 ‘‘(G) promoting instruction and training on 10 citizenship responsibilities for aliens interested 11 in becoming naturalized citizens of the United 12 States, including the development of edu- 13 cational materials for such aliens.’’. 14 (c) DONATIONS.—Section 451(f) of the Homeland 15 Security Act of 2002 (6 U.S.C. 271(f)), as amended by 16 this section, is further amended by adding at the end the 17 following: 18 ‘‘(3) DONATIONS.— 19 ‘‘(A) ACCEPTANCE OF DONATIONS.—The 20 Chief of the Office of Citizenship and New 21 Americans may accept monetary and in-kind 22 donations to support the activities described in 23 paragraph (2). 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00645 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 646 •S 1258 IS ‘‘(B) DEDICATION OF FUNDS.—Notwith- 1 standing any other provision of law— 2 ‘‘(i) any amounts donated to the Of- 3 fice of Citizenship and New Americans to 4 support the activities described in para- 5 graph (2) shall be deposited into an ac- 6 count dedicated for such purpose; 7 ‘‘(ii) the amounts contained in the ac- 8 count described in clause (i) shall be used 9 solely to support such activities; and 10 ‘‘(iii) amounts that were not donated 11 for the exclusive purpose of supporting 12 such activities may not be deposited into 13 such account.’’. 14 (d) REPORT TO CONGRESS.—The Chief of the Office 15 of Citizenship and New Americans shall submit a biennial 16 report to the appropriate committees in Congress that de- 17 scribes the activities of the Office of Citizenship and New 18 Americans. 19 SEC. 362. GRANTS TO STATES. 20 (a) AUTHORITY TO PROVIDE GRANTS.—Subject to 21 subsections (c) and (d), the Chief of the Office of Citizen- 22 ship and New Americans (referred to in this section as 23 the ‘‘Chief’’) is authorized to provide competitive grants 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00646 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 647 •S 1258 IS to States to form State New American Councils to carry 1 out the activities described in section 363. 2 (b) STATE NEW AMERICAN COUNCILS.—A State 3 New American Council shall— 4 (1) consist of not fewer than 15 individuals and 5 not more than 19 individuals from the State; and 6 (2) shall include, to the extent practicable, rep- 7 resentatives from— 8 (A) business; 9 (B) faith-based organizations; 10 (C) civic organizations; 11 (D) philanthropic organizations; 12 (E) nonprofit organizations, including 13 those with experience working with immigrant 14 communities; 15 (F) key education stakeholders, such as 16 State educational agencies, local educational 17 agencies, community colleges, or teachers; 18 (G) State adult education offices; 19 (H) State or local public libraries; and 20 (I) State or local government officials. 21 (c) WAIVER OF REQUIREMENT.— 22 (1) AUTHORITY TO GRANT.—The Chief may 23 award a grant under subsection (a) to a State with- 24 out requiring the State to form a State New Amer- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00647 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 648 •S 1258 IS ican Council if the Chief determines that the State 1 is carrying out similar statewide initiatives to intro- 2 duce immigrants into the State and into the United 3 States. 4 (2) GUIDELINES.—The Chief shall establish 5 guidelines for awarding grants to States described in 6 paragraph (1). 7 (d) GRANTS TO LOCAL GOVERNMENTS.—The Chief 8 may provide a grant under subsection (a) to a local gov- 9 ernment. 10 (e) APPLICATION.—An applicant for a grant under 11 this section shall submit an application to the Chief at 12 such time, in such manner, and containing such informa- 13 tion as the Chief may reasonably require, including— 14 (1) if the applicant is a State seeking to form 15 a State New American Council, an assurance that 16 such State New American Council will meet the re- 17 quirements under subsection (b); 18 (2) the number of immigrants in the State in 19 which the applicant is located; and 20 (3) a description of the challenges in intro- 21 ducing new immigrants into the State and local com- 22 munity. 23 (f) DURATION.—A grant awarded under subsection 24 (a) shall be for a period of 5 years. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00648 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 649 •S 1258 IS (g) PRIORITY.—Priority shall be given to grant appli- 1 cations that— 2 (1) use matching funds from non-Federal 3 sources, which may include in-kind contributions; 4 and 5 (2) demonstrate collaboration with private enti- 6 ties to achieve the goals of their comprehensive plan. 7 (h) ADDITIONAL CONSIDERATION.—Additional con- 8 sideration shall be given to grant applications submitted 9 by States that have experienced a large increase in the 10 population of immigrants during the most recent 10-year 11 period relative to past migration patterns, based on data 12 compiled by the Office of Immigration Statistics. 13 (i) GRANT AMOUNT.—The amount of a grant award- 14 ed under subsection (a) shall be not less than $500,000 15 and not more than $5,000,000 for each fiscal year. 16 (j) RESERVATIONS.— 17 (1) NATIONAL.—The Chief shall reserve not 18 more than 1 percent of the amount appropriated to 19 carry out this section for the administration of the 20 Office of Citizenship and New Americans, including 21 for the evaluation of funds distributed. 22 (2) STATES.—A State awarded a grant under 23 subsection (a) may reserve not more than 10 percent 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00649 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 650 •S 1258 IS of such grant amount for the creation and operation 1 of a State New American Council. 2 SEC. 363. AUTHORIZED ACTIVITIES. 3 (a) MANDATORY ACTIVITIES.—A grant awarded 4 under section 361(a) shall be used— 5 (1) to develop, implement, expand, or enhance 6 a comprehensive plan to introduce new immigrants 7 into the State, including improving English literacy, 8 knowledge of United States history, and civics edu- 9 cation; 10 (2) to provide subgrants to local communities in 11 accordance with subsection (c); 12 (3) if the grant is awarded to a State, to form 13 a State New American Council, which shall meet not 14 less frequently than once each quarter; 15 (4) to disseminate best practices and other in- 16 formation compiled by the Office of Citizenship and 17 New Americans that pertains to effective programs 18 for English acquisition and civics education; and 19 (5) to convene public hearings not less fre- 20 quently than once each year to report on the activi- 21 ties carried out by such grant. 22 (b) PERMISSIBLE ACTIVITIES.—A grant awarded 23 under section 361(a) may be used— 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00650 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 651 •S 1258 IS (1) to solicit and disseminate solutions and 1 remedies to the challenges of introducing new immi- 2 grants in the State or municipality in which the 3 grant is awarded; 4 (2) to provide technical assistance, training, or 5 coordination for State or local agencies to improve 6 programs to introduce new immigrants into the 7 United States, such as English literacy, United 8 States history, and civics education; 9 (3) to review and develop strategies to expand 10 distance learning as a method of instruction for 11 English literacy, United States history, and civics 12 education and available technological programs that 13 may supplement or supplant quality classroom in- 14 struction; 15 (4) to coordinate with entities of other States 16 engaged in activities under this part or other activi- 17 ties to introduce new immigrants into the State or 18 community; 19 (5) to develop materials focused on preparation 20 for the naturalization test; 21 (6) to engage in outreach and educational ac- 22 tivities on the naturalization process; and 23 (7) to provide assistance to immigrants with the 24 naturalization application, as appropriate. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00651 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 652 •S 1258 IS (c) SUBGRANTS TO LOCAL COMMUNITIES.— 1 (1) REQUIREMENT TO AWARD.—A grant under 2 section 108(a) shall be used to award subgrants to 3 entities of local governments to assist communities 4 with local efforts to introduce new Americans into 5 the community. 6 (2) AUTHORIZED ACTIVITIES.—Subgrants shall 7 be awarded under paragraph (1) to entities of local 8 governments for use to carry out activities in accord- 9 ance with— 10 (A) a comprehensive plan described in sub- 11 section (a)(1); and 12 (B) any guidance provided by the Chief of 13 the Office of Citizenship and New Americans. 14 (3) SUBGRANT AMOUNT.—The amount of a 15 subgrant awarded under this subsection shall be not 16 less than $100,000 and not more than $600,000 for 17 a fiscal year.** 18 SEC. 364. REPORTING AND EVALUATION. 19 (a) REPORTING REQUIREMENT.— 20 (1) IN GENERAL.—Each entity awarded a grant 21 under section 108(a) shall submit a report annually 22 to the Office of Citizenship and New Americans 23 that— 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00652 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 653 •S 1258 IS (A) describes the activities of the State 1 New American Council and subgrant recipients 2 and how these activities meet the goals of— 3 (i) the Chief of the Office of Citizen- 4 ship and New Americans; and 5 (ii) the comprehensive plan described 6 in section 109(a)(1); and 7 (B) describes the geographic areas being 8 served, the number of immigrants in such 9 areas, and the primary languages spoken there. 10 (2) OTHER REQUIREMENTS.—The Chief of the 11 Office of Citizenship may set out other requirements 12 as the Chief sees fit in order to— 13 (A) impose accountability; and 14 (B) measure the outcomes of the activities 15 carried out with grants awarded under section 16 1083(a). 17 (b) ANNUAL EVALUATION.—The Chief of the Office 18 of Citizenship and New Americans shall conduct an an- 19 nual evaluation of the grant program established under 20 this subtitle and use such evaluation— 21 (1) to improve the effectiveness of programs 22 carried out by the Chief; 23 (2) to assess future needs of immigrants and of 24 State and local governments related to immigrants; 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00653 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 654 •S 1258 IS (3) to determine the effectiveness of such grant 1 program; and 2 (4) to ensure that the grantees and subgrantees 3 are acting within the scope and purpose of this sub- 4 title. 5 SEC. 365. NEW CITIZENS AWARD PROGRAM. 6 (a) ESTABLISHMENT.—There is established a new 7 citizens award program to recognize citizens who— 8 (1) have made an outstanding contribution to 9 the United States; and 10 (2) are naturalized during the 10-year period 11 ending on the date of such recognition. 12 (b) PRESENTATION AUTHORIZED.— 13 (1) IN GENERAL.—The President is authorized 14 to present a medal, in recognition of outstanding 15 contributions to the United States, to citizens de- 16 scribed in subsection (a). 17 (2) MAXIMUM NUMBER OF AWARDS.—Not more 18 than 10 citizens may receive a medal under this sec- 19 tion in any calendar year. 20 SEC. 366. RULE OF CONSTRUCTION. 21 Nothing in this subtitle may be construed to limit the 22 authority of the Secretary, acting through the Director of 23 United States Citizenship and Immigration Services or 24 such other officials of the Department of Homeland Secu- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00654 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 655 •S 1258 IS rity as the Secretary may direct, to manage, direct, and 1 control the activities of the Chief of the Office of Citizen- 2 ship and New Americans. 3 SEC. 367. REPORT TO CONGRESS ON FEE INCREASES. 4 Section 286 (8 U.S.C. 1356), as amended by section 5 326(b), is further amended by adding at the end the fol- 6 lowing: 7 ‘‘(x) REPORT TO CONGRESS ON FEES AND FEE IN- 8 CREASES.—The Secretary of Homeland Security shall an- 9 nually submit a report to the Committee on the Judiciary 10 of the Senate and the Committee on the Judiciary of the 11 House of Representatives that— 12 ‘‘(1) identifies the direct and overhead costs as- 13 sociated with providing immigration services, distin- 14 guishing such costs from immigration enforcement 15 and national security costs; 16 ‘‘(2) identifies the costs for providing premium 17 processing services to business customers under sub- 18 section (u); 19 ‘‘(3) describes the extent to which the premium 20 processing fee prescribed under subsection (u) is set 21 at a level that ensures recovery of those costs; 22 ‘‘(4) identifies the amount of funding allocated 23 for the infrastructure improvements in the adjudica- 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00655 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 656 •S 1258 IS tions and customer-service processes as prescribed 1 under subsection (u); and 2 ‘‘(5) contains information about the basis for 3 any fee increases that will occur during the following 4 12 months.’’. 5 SEC. 368. AUTHORIZATION OF APPROPRIATIONS. 6 There are authorized to be appropriated to carry out 7 this subtitle $100,000,000 for each of the fiscal years 8 2012 through 2016. 9 PART II—EMERGENCY RELIEF FOR CERTAIN 10 POPULATIONS 11 SEC. 371. ADJUSTMENT OF STATUS FOR CERTAIN HAITIAN 12 ORPHANS. 13 (a) IN GENERAL.—The Secretary may adjust the sta- 14 tus of an alien described in subsection (b) to that of an 15 alien lawfully admitted for permanent residence if the 16 alien— 17 (1) subject to subsection (c), applies for such 18 adjustment; 19 (2) is physically present in the United States on 20 the date the application for such adjustment is filed; 21 and 22 (3) is admissible to the United States as an im- 23 migrant, except as provided in subsection (d). 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00656 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 657 •S 1258 IS (b) ALIENS ELIGIBLE FOR ADJUSTMENT OF STA- 1 TUS.—An alien is described in this subsection if the alien 2 was inspected and granted parole into the United States 3 pursuant to the humanitarian parole policy for certain 4 Haitian orphans announced on January 18, 2010, and 5 suspended as to new applications on April 15, 2010. 6 (c) APPLICATION.—In the case of a minor, an appli- 7 cation under this section may be submitted on behalf of 8 the alien by— 9 (1) a parent; or 10 (2) a legal guardian. 11 (d) GROUNDS OF INADMISSIBILITY.—Paragraphs (4) 12 and (7)(A) of section 212(a) of the Immigration and Na- 13 tionality Act (8 U.S.C. 1182(a)) shall not apply to adjust- 14 ment of status under this section. 15 (e) VISA AVAILABILITY.—When an alien is granted 16 the status of having been lawfully admitted for permanent 17 residence under this section, the Secretary of State shall 18 not be required to reduce the number of immigrant visas 19 authorized to be issued under the Immigration and Na- 20 tionality Act (8 U.S.C. 1101 et seq.). 21 (f) ALIEN DEEMED TO MEET DEFINITION OF 22 CHILD.—An alien described in subsection (b) shall be 23 deemed to satisfy the requirements applicable to adopted 24 children under section 101(b)(1) of the Immigration and 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00657 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 658 •S 1258 IS Nationality Act (8 U.S.C. 1101(b)(1)) if, before the date 1 on which the alien reaches 18 years of age— 2 (1) the alien obtains adjustment of status under 3 this section; and 4 (2) a United States citizen adopts the alien, re- 5 gardless of whether the adoption occurs before, on, 6 or after the date of the decision-granting adjustment 7 of status under this section. 8 (g) NO IMMIGRATION BENEFITS FOR BIRTH PAR- 9 ENTS.—No birth parent of an alien who obtains adjust- 10 ment of status under this section shall thereafter, by vir- 11 tue of such parentage, be accorded any right, privilege, 12 or status under this section or the Immigration and Na- 13 tionality Act (8 U.S.C. 1101 et seq.). 14 SEC. 372. ADJUSTMENT OF STATUS FOR CERTAIN LIBERIAN 15 NATIONALS. 16 (a) ADJUSTMENT OF STATUS.— 17 (1) IN GENERAL.— 18 (A) ELIGIBILITY.—Except as provided 19 under subparagraph (B), the Secretary shall 20 adjust the status of an alien described in sub- 21 section (b) to that of an alien lawfully admitted 22 for permanent residence, if the alien— 23 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00658 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 659 •S 1258 IS (i) applies for adjustment not later 1 than 1 year after the date of the enact- 2 ment of this Act; and 3 (ii) is otherwise eligible to receive an 4 immigrant visa and admissible to the 5 United States for permanent residence, ex- 6 cept that, in determining such admissi- 7 bility, the grounds for inadmissibility speci- 8 fied in paragraphs (4), (5), (6)(A), and 9 (7)(A) of section 212(a) of the Immigra- 10 tion and Nationality Act (8 U.S.C. 11 1182(a)) shall not apply. 12 (B) INELIGIBLE ALIENS.—An alien shall 13 not be eligible for adjustment of status under 14 this section if the Secretary determines that the 15 alien— 16 (i) has been convicted of any aggra- 17 vated felony (as defined in section 18 101(a)(43) of the Immigration and Nation- 19 ality Act (8 U.S.C. 1101(a)(43)); 20 (ii) has been convicted of 2 or more 21 crimes involving moral turpitude; or 22 (iii) has ordered, incited, assisted, or 23 otherwise participated in the persecution of 24 any person on account of race, religion, na- 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00659 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 660 •S 1258 IS tionality, membership in a particular social 1 group, or political opinion. 2 (2) RELATIONSHIP OF APPLICATION TO CER- 3 TAIN ORDERS.— 4 (A) IN GENERAL.—An alien present in the 5 United States who has been subject to an order 6 of exclusion, deportation, or removal, or has 7 been ordered to depart voluntarily from the 8 United States under any provision of the Immi- 9 gration and Nationality Act may, notwith- 10 standing such order, apply for adjustment of 11 status under paragraph (1) if otherwise quali- 12 fied under such paragraph. 13 (B) SEPARATE MOTION NOT REQUIRED.— 14 An alien described in subparagraph (A) may 15 not be required, as a condition of submitting or 16 granting such application, to file a separate mo- 17 tion to reopen, reconsider, or vacate the order 18 described in subparagraph (A). 19 (C) EFFECT OF DECISION BY SEC- 20 RETARY.—If the Secretary grants an applica- 21 tion under paragraph (1), the Secretary shall 22 cancel the order described in subparagraph (A). 23 If the Secretary makes a final decision to deny 24 the application, the order shall be effective and 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00660 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 661 •S 1258 IS enforceable to the same extent as if the applica- 1 tion had not been made. 2 (b) ALIENS ELIGIBLE FOR ADJUSTMENT OF STA- 3 TUS.— 4 (1) IN GENERAL.—The benefits provided under 5 subsection (a) shall apply to any alien— 6 (A) who is— 7 (i) a national of Liberia; and 8 (ii) has been continuously present in 9 the United States between January 1, 10 2011, and the date on which the alien sub- 11 mits an application under subsection (a); 12 or 13 (B) who is the spouse, child, or unmarried 14 son or daughter of an alien described in sub- 15 paragraph (A). 16 (2) DETERMINATION OF CONTINUOUS PHYS- 17 ICAL PRESENCE.—For purposes of establishing the 18 period of continuous physical presence referred to in 19 paragraph (1)(A)(ii), an alien shall not be consid- 20 ered to have failed to maintain continuous physical 21 presence by reasons of an absence, or absences, from 22 the United States for any period or periods amount- 23 ing in the aggregate to not more than 180 days. 24 (c) STAY OF REMOVAL.— 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00661 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 662 •S 1258 IS (1) IN GENERAL.—The Secretary shall establish 1 procedures, by regulation, through which an alien, 2 who is subject to a final order of deportation, re- 3 moval, or exclusion, may seek a stay of such order 4 based upon the filing of an application under sub- 5 section (a). 6 (2) DURING CERTAIN PROCEEDINGS.—Notwith- 7 standing any provision of the Immigration and Na- 8 tionality Act (8 U.S.C. 1101 et seq.), the Secretary 9 shall not order an alien to be removed from the 10 United States if the alien is in exclusion, deporta- 11 tion, or removal proceedings under any provision of 12 such Act and has applied for adjustment of status 13 under subsection (a), unless the Secretary has made 14 a final determination to deny the application. 15 (3) WORK AUTHORIZATION.— 16 (A) IN GENERAL.—The Secretary may— 17 (i) authorize an alien who has applied 18 for adjustment of status under subsection 19 (a) to engage in employment in the United 20 States while a determination regarding 21 such application is pending; and 22 (ii) provide the alien with an employ- 23 ment authorized endorsement or other ap- 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00662 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 663 •S 1258 IS propriate document signifying authoriza- 1 tion of employment. 2 (B) PENDING APPLICATIONS.—If an appli- 3 cation for adjustment of status under sub- 4 section (a) is pending for a period exceeding 5 180 days and has not been denied, the Sec- 6 retary shall authorize such employment. 7 (d) RECORD OF PERMANENT RESIDENCE.—Upon the 8 approval of an alien’s application for adjustment of status 9 under subsection (a), the Secretary shall establish a record 10 of the alien’s admission for permanent record as of the 11 date of the alien’s arrival in the United States. 12 (e) AVAILABILITY OF ADMINISTRATIVE REVIEW.— 13 The Secretary shall provide to applicants for adjustment 14 of status under subsection (a) the same right to, and pro- 15 cedures for, administrative review as are provided to— 16 (1) applicants for adjustment of status under 17 section 245 of the Immigration and Nationality Act 18 (8 U.S.C. 1255); and 19 (2) aliens subject to removal proceedings under 20 section 240 of such Act (8 U.S.C. 1229a). 21 (f) LIMITATION ON JUDICIAL REVIEW.—A deter- 22 mination by the Secretary regarding the adjustment of 23 status of any alien under this section is final and shall 24 not be subject to review by any court. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00663 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 664 •S 1258 IS (g) NO OFFSET IN NUMBER OF VISAS AVAILABLE.— 1 If an alien is granted the status of having been lawfully 2 admitted for permanent residence pursuant to this section, 3 the Secretary of State shall not be required to reduce the 4 number of immigrant visas authorized to be issued under 5 any provision of the Immigration and Nationality Act (8 6 U.S.C. 1101 et seq.). 7 (h) APPLICATION OF IMMIGRATION AND NATION- 8 ALITY ACT PROVISIONS.— 9 (1) DEFINITIONS.—Except as otherwise specifi- 10 cally provided in this chapter, the definitions con- 11 tained in the Immigration and Nationality Act (8 12 U.S.C. 1101 et seq.) shall apply in this section. 13 (2) SAVINGS PROVISION.—Nothing in this chap- 14 ter may be construed to repeal, amend, alter, mod- 15 ify, effect, or restrict the powers, duties, function, or 16 authority of the Secretary in the administration and 17 enforcement of the Immigration and Nationality Act 18 or any other law relating to immigration, nationality, 19 or naturalization. 20 (i) EFFECT OF ELIGIBILITY FOR ADJUSTMENT OF 21 STATUS.—Eligibility to be granted the status of having 22 been lawfully admitted for permanent residence under this 23 section shall not preclude an alien from seeking any status 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00664 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 665 •S 1258 IS under any other provision of law for which the alien may 1 otherwise be eligible. 2 PART III—STATE COURT INTERPRETER GRANT 3 PROGRAM 4 SEC. 381. FINDINGS. 5 Congress finds that— 6 (1) the fair administration of justice depends on 7 the ability of all participants in a courtroom pro- 8 ceeding to understand that proceeding, regardless of 9 their English proficiency; 10 (2) 19 percent of the population of the United 11 States older than 5 years of age speaks a language 12 other than English at home; 13 (3) only qualified court interpreters can ensure 14 that persons with limited English proficiency com- 15 prehend judicial proceedings in which they are a 16 party; 17 (4) the knowledge and skills required of a quali- 18 fied court interpreter differ substantially from those 19 required in other interpretation settings, such as so- 20 cial service, medical, diplomatic, and conference in- 21 terpreting; 22 (5) the Federal Government has demonstrated 23 its commitment to equal administration of justice re- 24 gardless of English proficiency; 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00665 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 666 •S 1258 IS (6) regulations implementing title VI of the 1 Civil Rights Act of 1964 and the guidance issued by 2 the Department of Justice pursuant to Executive 3 Order 13166, issued August 11, 2000, clarify that 4 all recipients of Federal financial assistance, includ- 5 ing State courts, are required to take reasonable 6 steps to provide meaningful access to their pro- 7 ceedings for persons with limited English pro- 8 ficiency; 9 (7) 40 States have developed, or are developing, 10 qualified court interpreting programs; 11 (8) robust, effective court interpreter pro- 12 grams— 13 (A) actively recruit skilled individuals to be 14 court interpreters; 15 (B) train those individuals in the interpre- 16 tation of court proceedings; 17 (C) develop and use a thorough, systematic 18 certification process for court interpreters; and 19 (D) have sufficient funding to ensure that 20 a qualified interpreter will be available to the 21 court whenever necessary; and 22 (9) Federal funding is necessary to— 23 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00666 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 667 •S 1258 IS (A) encourage State courts that do not 1 have court interpreter programs to develop 2 them; 3 (B) assist State courts with nascent court 4 interpreter programs to implement them; 5 (C) assist State courts with limited court 6 interpreter programs to enhance them; and 7 (D) assist State courts with robust court 8 interpreter programs to make further improve- 9 ments and share successful programs with other 10 States. 11 SEC. 382. STATE COURT INTERPRETER PROGRAM. 12 (a) GRANTS AUTHORIZED.— 13 (1) IN GENERAL.—The Administrator of the 14 Office of Justice Programs of the Department of 15 Justice (referred to in this section as the ‘‘Adminis- 16 trator’’) shall award grants, in accordance with such 17 regulations as the Attorney General may prescribe, 18 to State courts to develop and implement programs 19 to assist individuals with limited English proficiency 20 to access and understand State court proceedings in 21 which they are a party. 22 (2) TECHNICAL ASSISTANCE.—The Adminis- 23 trator shall allocate, for each fiscal year, $500,000 24 of the amount appropriated pursuant to section 383, 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00667 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 668 •S 1258 IS which shall be used to establish a court interpreter 1 technical assistance program to assist State courts 2 receiving grants under this part. 3 (b) USE OF GRANTS.—Grants awarded under sub- 4 section (a) may be used by State courts to— 5 (1) assess regional language demands; 6 (2) develop a court interpreter program for the 7 State courts; 8 (3) develop, institute, and administer language 9 certification examinations; 10 (4) recruit, train, and certify qualified court in- 11 terpreters; 12 (5) pay for salaries, transportation, and tech- 13 nology necessary to implement the court interpreter 14 program developed under paragraph (2); and 15 (6) engage in other related activities, as pre- 16 scribed by the Attorney General. 17 (c) APPLICATION.— 18 (1) IN GENERAL.—The highest State court of 19 each State desiring a grant under this section shall 20 submit an application to the Administrator at such 21 time, in such manner, and accompanied by such in- 22 formation as the Administrator may reasonably re- 23 quire. 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00668 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 669 •S 1258 IS (2) STATE COURTS.—The highest State court 1 of each State submitting an application under para- 2 graph (1) shall include in the application— 3 (A) a demonstration of need for the devel- 4 opment, implementation, or expansion of a 5 State court interpreter program; 6 (B) an identification of each State court in 7 that State which would receive funds from the 8 grant; 9 (C) the amount of funds each State court 10 identified under subparagraph (B) would re- 11 ceive from the grant; and 12 (D) the procedures the highest State court 13 would use to directly distribute grant funds to 14 State courts identified under subparagraph (B). 15 (d) STATE COURT ALLOTMENTS.— 16 (1) BASE ALLOTMENT.—From amounts appro- 17 priated for each fiscal year pursuant to section 383, 18 the Administrator shall allocate $100,000 to each of 19 the highest State court of each State, which has an 20 application approved under subsection (c). 21 (2) DISCRETIONARY ALLOTMENT.—From 22 amounts appropriated for each fiscal year pursuant 23 to section 383, the Administrator shall allocate 24 $5,000,000 to be distributed among the highest 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00669 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 670 •S 1258 IS State courts of States which have an application ap- 1 proved under subsection (c), and that have extraor- 2 dinary needs that are required to be addressed in 3 order to develop, implement, or expand a State court 4 interpreter program. 5 (3) ADDITIONAL ALLOTMENT.—In addition to 6 the allocations made under paragraphs (1) and (2), 7 the Administrator shall allocate, to the highest State 8 court of each State whose application was approved 9 under subsection (c), an amount equal to the prod- 10 uct reached by multiplying— 11 (A) the unallocated balance of the amount 12 appropriated for each fiscal year pursuant to 13 section 383; and 14 (B) the ratio between the number of people 15 older than 5 years of age who speak a language 16 other than English at home in the State and 17 the number of people older than 5 years of age 18 who speak a language other than English at 19 home in all the States that receive an allocation 20 under paragraph (1), as those numbers are de- 21 termined by the Bureau of the Census. 22 (4) TREATMENT OF DISTRICT OF COLUMBIA.— 23 For purposes of this section— 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00670 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 671 •S 1258 IS (A) the District of Columbia shall be treat- 1 ed as a State; and 2 (B) the District of Columbia Court of Ap- 3 peals shall act as the highest State court for 4 the District of Columbia. 5 SEC. 383. AUTHORIZATION OF APPROPRIATIONS. 6 There are authorized to be appropriated $15,000,000 7 for each of the fiscal years 2012 through 2016 to carry 8 out this part. 9 PART IV—OTHER MATTERS 10 SEC. 391. ADJUSTMENT OF STATUS FOR CERTAIN VICTIMS 11 OF TERRORISM. 12 (a) ADJUSTMENT OF STATUS.—The status of any 13 alien described in subsection (b) may be adjusted by the 14 Secretary to that of an alien lawfully admitted for perma- 15 nent residence, if the alien— 16 (1) applies for such adjustment not later than 17 1 year after the date of the enactment of this Act; 18 (2) is not inadmissible to the United States 19 under paragraph (2) or (3) of section 212(a) of the 20 Immigration and Nationality Act (8 U.S.C. 21 1182(a)), or deportable under paragraph (2) or (4) 22 of section 237(a) of such Act (8 U.S.C. 1227(a)); 23 and 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00671 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 672 •S 1258 IS (3) not later than the date on which the appli- 1 cation under paragraph (1) is submitted, satisfies 2 any applicable Federal tax liability by establishing 3 that— 4 (A) no such tax liability exists; or 5 (B) all outstanding liabilities have been 6 paid. 7 (b) ALIENS ELIGIBLE FOR ADJUSTMENT OF STA- 8 TUS.— 9 (1) IN GENERAL.—The benefit provided under 10 subsection (a) shall apply to any alien who— 11 (A) was, on September 10, 2001, the 12 spouse, child, unmarried son, or unmarried 13 daughter of an alien who died as a direct result 14 of the terrorist activity conducted against the 15 United States on September 11, 2001; 16 (B) was deemed to be a beneficiary of, and 17 by, the September 11th Victim Compensation 18 Fund of 2001 (49 U.S.C. 40101); and 19 (C) made a proffer of information to the 20 Secretary between April 24, 2008, and August 21 15, 2008, in connection with a request for im- 22 migration relief. 23 (2) EXCEPTION.—An alien shall not be pro- 24 vided any benefit under this section if the Secretary 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00672 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 673 •S 1258 IS determines that the alien has willfully made a mate- 1 rial misrepresentation or material omission in the 2 proffer of information described in paragraph 3 (1)(C). 4 (c) WORK AUTHORIZATION.—The Secretary may au- 5 thorize an alien who has applied for adjustment of status 6 under subsection (a) to engage in employment in the 7 United States during the pendency of such application. 8 (d) CONSTRUCTION.—Nothing in this section shall be 9 construed to limit the existing authority of the Secretary 10 on the date of the enactment of this Act to require any 11 form or other submission of information or to perform any 12 background or security check for the purpose of deter- 13 mining the admissibility, or eligibility under this section, 14 of any alien. 15 (e) WAIVER OF REGULATIONS.—Not later than 6 16 months after the date of the enactment of this Act, the 17 Secretary shall issue guidance to carry out this section. 18 The Secretary shall not be required to promulgate regula- 19 tions before implementing this section. 20 (f) NO OFFSET IN NUMBER OF VISAS AVAILABLE.— 21 At the time an alien is granted the status of having been 22 lawfully admitted for permanent residence under this sec- 23 tion, the Secretary of State shall not be required to reduce 24 the number of immigrant visas authorized to be issued 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00673 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 674 •S 1258 IS under title II of the Immigration and Nationality Act (8 1 U.S.C. 1151 et seq.). 2 (g) DEFINITIONS.— 3 (1) APPLICABLE FEDERAL TAX LIABILITY DE- 4 FINED.—In this section, the term ‘‘applicable Fed- 5 eral tax liability’’ means liability for Federal taxes, 6 including penalties and interest, owed for any year 7 for which the statutory period for assessment of any 8 deficiency for such taxes has not expired. 9 (2) INCORPORATION BY REFERENCE.—Except 10 as otherwise specifically provided in this section, the 11 definitions used in the Immigration and Nationality 12 Act (8 U.S.C. 1101 et seq.) (excluding the defini- 13 tions applicable exclusively to title III of such Act) 14 shall apply in the administration of this section. 15 SEC. 392. DEVELOPMENT OF ASSESSMENT AND STRATEGY 16 ADDRESSING FACTORS DRIVING MIGRATION. 17 (a) DEVELOPMENT OF ASSESSMENT.—Not later than 18 6 months after the date of the enactment of this Act, the 19 Comptroller General of the United States shall submit a 20 report to Congress that contains a baseline assessment of 21 the primary factors driving migration in a prioritized 22 group of 10 countries with the highest rates of irregular 23 migration to the United States, including— 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00674 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 675 •S 1258 IS (1) factors driving migration in the prioritized 1 countries; and 2 (2) the impact of United States assistance, 3 trade, or foreign policy on migration trends in the 4 prioritized countries. 5 (b) STRATEGY TO ADDRESS FACTORS DRIVING IM- 6 MIGRATION.—The Secretary of State, working with the 7 Administrator of the United States Agency for Inter- 8 national Development, and in consultation with the Bu- 9 reau of Population, Refugees, and Migration of the De- 10 partment of State, the Department of Labor, and the Of- 11 fice of the United States Trade Representative, shall sub- 12 mit strategy to the Committee on Foreign Relations of the 13 Senate and the Committee on Foreign Affairs of the 14 House of Representatives for addressing the economic, so- 15 cial, and security factors driving high rates of irregular 16 migration from the prioritized countries, as identified by 17 the report submitted under subsection (a). 18 (c) ELEMENTS OF STRATEGY.—The strategy re- 19 quired under subsection (b) shall include— 20 (1) a summary and evaluation of current assist- 21 ance provided by the Government of the United 22 States to countries with the highest rates of irreg- 23 ular migration to the United States; 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00675 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 676 •S 1258 IS (2) an identification of the regions and munici- 1 palities experiencing the highest emigration rates 2 and the current level of United States aid or invest- 3 ment in these areas; and 4 (3) recommendations for future United States 5 Government assistance and technical support to ad- 6 dress key economic, social and development factors 7 identified in the prioritized migration source coun- 8 tries that are designed to ensure appropriate engage- 9 ment of national and local governments and civil so- 10 ciety organizations. 11 SEC. 393. PRIORITIZATION OF MIGRATION SOURCE COUN- 12 TRIES BY THE UNITED STATES AGENCY FOR 13 INTERNATIONAL DEVELOPMENT. 14 (a) IN GENERAL.—The Administrator of the United 15 States Agency for International Development shall expand 16 programming that prioritizes sustainable alternatives to 17 emigration and incorporates migration and development 18 programming to assist communities in the countries iden- 19 tified in the previous section, including— 20 (1) communities that currently experience, or 21 are projected to soon experience, high rates of popu- 22 lation loss due to international migration to the 23 United States; 24 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00676 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 677 •S 1258 IS (2) communities experiencing or at high risk of 1 trafficking in persons; 2 (3) communities that are receiving high rates of 3 returned or deported migrants from the United 4 States; 5 (4) communities affected by destabilizing levels 6 of generalized violence, or violence associated with 7 gang or drug related crimes; and 8 (5) communities that currently have developed 9 partnerships with migrant associations and federa- 10 tions based in the United States. 11 (b) INCREASED ASSISTANCE.—The Secretary of 12 State and the Administrator of the United States Agency 13 for International Development shall work with the Com- 14 mittee on Foreign Relations of the Senate, the Committee 15 on Appropriations of the Senate, the Committee on For- 16 eign Affairs of the House of Representatives, and the 17 Committee on Appropriations of the House of Representa- 18 tives to increase, beginning in fiscal year 2012, financial 19 assistance to the communities described in subsection (a) 20 with the goal of— 21 (1) alleviating rural poverty and revitalizing ag- 22 ricultural production by supporting investment in 23 rural development strategies, marketing support to 24 small farmers, small scale agroenterprise initiatives, 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00677 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 678 •S 1258 IS and expanded access to credit and micro-finance op- 1 portunities for small farmers, particularly in regions 2 of highest outmigration; 3 (2) fully funding micro-finance and micro-enter- 4 prise initiatives and ensure mechanisms for access to 5 rural credit and micro-insurance and target available 6 funding to traditionally marginalized groups and at- 7 risk populations, particularly youth and indigenous 8 populations; 9 (3) prioritizing income generation and livelihood 10 alternatives targeted to youth; 11 (4) supporting innovations and matching funds 12 for collective remittance investment and business de- 13 velopment through the establishment or expansion of 14 United States matching funds through United 15 States Agency for International Development for col- 16 lective remittance investment by migrant associa- 17 tions and federations in migrant sending municipali- 18 ties or regions; and 19 (5) recognizing that the highest rates of irreg- 20 ular migration are from Mexico and other Western 21 Hemisphere countries by dedicating particular atten- 22 tion to bilateral and multilateral efforts to reduce 23 the economic and social factors driving irregular mi- 24 gration in this region. 25 VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00678 Fmt 6652 Sfmt 6201 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS 679 •S 1258 IS SEC. 394. SENSE OF CONGRESS ON INCREASED UNITED 1 STATES FOREIGN POLICY COHERENCY IN 2 THE WESTERN HEMISPHERE. 3 It is the sense of Congress that the Secretary of State 4 should review the United States foreign policy toward 5 Latin America in order to strengthen hemispheric security 6 through the reduction of poverty and inequality, expansion 7 of equitable trade, support for democratic institutions, cit- 8 izen security and the rule of law, as essential elements 9 in consolidation of a well-managed regional migration pol- 10 icy. 11 Æ VerDate Mar 15 2010 00:34 Jun 23, 2011 Jkt 099200 PO 00000 Frm 00679 Fmt 6652 Sfmt 6301 E:\BILLS\S1258.IS S1258 tjames on DSKG8SOYB1PROD with BILLS