Title II

Title III

Title IV

Title V

Administration Position

Summary and Background

On May 9, 2007, Majority Leader Reid introduced S. 1348, the Comprehensive Immigration Reform Act of 2007. On May 21, the Senate invoked cloture on the motion to proceed to the bill, on a 69-23 vote, and agreed by unanimous consent to proceed to its consideration.

On that same day, Senator Reid for Senators Kennedy and Specter introduced S.A. 1150, the Secure Borders, Economic Opportunity, and Immigration Reform Act of 2007, as a substitute amendment to S. 1348. The Senate began debate on S.A. 1150, which was the product of bipartisan negotiations with Democratic and Republican Senators and the Bush Administration, on May 22.

S.A. 1150 would make the following changes to U.S. immigration law:

Section 2 would establish border enforcement benchmarks that would have to be met before the temporary guest worker program could be begin;

Title I would strengthen border security by increasing enforcement personnel, improving infrastructure and technology, authorizing new legal authorities for the Department of Homeland Security, and authorizing funding for anti-illegal immigration law enforcement programs in border communities;

Title II would strengthen interior enforcement by enhancing criminal penalties for immigration and related crimes and authorizing resources for additional immigration personnel;

Title III would strengthen worksite enforcement by tightening the employment verification process, improving the verification system, and increasing penalties for non-compliance;

Title IV would create a non-immigrant temporary worker program that sets-forth an application process for employers seeking to hire one or more temporary workers and ensure that hiring the temporary worker would not harm U.S. workers;

Title V would clear the family-immigration backlog for persons in the system as of May 2005, and create a new merit-based point system going forward that emphasizes work skills; and

Title VI would create a path to earned legalization (Z visa) for eligible undocumented immigrants who have been continuously present in the United States since January 1, 2007;

· establish the Dream Act program, which adjusts to legal permanent resident status certain long-term residents who entered the United States as children; and

· establish the AgJOBS program, which creates a path to earned legalization for experienced agricultural workers.

Major Provisions

The following summary is based on the overview of the substitute amendment prepared on May 21 by the Senate Committee on the Judiciary’s Subcommittee on Immigration, Border Security, and Refugees.

Section 2. Effective Date Triggers. S.A. 1150 would prevent the start of the temporary worker program (except for agricultural workers) and post-probationary phase of the earned legalization program for undocumented immigrants until the DHS Secretary certifies in writing to the President and Congress that the following measures are funded, in place, and in operation:

· U.S. Customs and Border Protection (CBP) has increased the number of agents to 18,000 agents;

· 200 miles of vehicle barriers, 370 miles of fencing, and 70 ground-based radar and camera towers have been installed and four unmanned aerial vehicles have been deployed along the southern border;

· All removable aliens apprehended crossing the southern border are detained (except as specifically “mandated” by law or humanitarian circumstances), and U.S. Immigration and Customs Enforcement (ICE) has sufficient resources to maintain this practice, including enough resources to detain up to 27,500 non-citizens per day on an annual basis;

· Department of Homeland Security (DHS) is using secure and effective identification tools to prevent unauthorized workers from obtaining jobs in the United States; these tools include (1) establishing strict standards for identification documents and (2) having a functioning electronic employment eligibility verification system in place; and

· DHS is processing applications for Z status (probationary earned legalization status) in a timely manner, including background and security checks.

The substitute amendment would also express the sense of Congress that the above border security and other measures can be completed within 18 months of enactment.

Further, S.A. 1150 would require the President to submit a report to Congress within 90 days after enactment and every 90 days thereafter until the measures have been implemented. The report would detail progress made in funding, appropriating, contractual agreements reached, and specific progress on each measure. If the President determines that insufficient progress is being made, the President would be required to include in the report specific funding recommendations or other actions being taken by DHS.

TITLE I – BORDER ENFORCEMENT

Subtitle A – Assets for Controlling United States Borders

Section 101. Additional Personnel. S.A. 1150 would require the hiring of additional enforcement personnel and authorize funding for such hires (subject to the availability of appropriations). For each of the Fiscal Years 2008 through 2012, the amendment would increase hiring by not less than 500 Customs and Border Protection officers and not less than 50 Deputy US Marshalls.

Investigative personnel. S.A. 1150 would increase the hiring of Immigration and Customs Enforcement investigators to 1000 (from the current 800) in Fiscal Years 2006 through 2010 and require the annual hiring of not less than 200 Department of Homeland Security alien smuggling investigators in Fiscal Years 2008-2012.

Recruitment of former military personnel. S.A. 1150 would direct CBP and the Department of Defense (DOD) to recruit active duty military personnel who have decided to leave the military and to report to Congress on the implementation of such a recruitment program not later than 180 days after enactment.

Increase in Border Patrol. S.A. 1150 would increase the number of full time Border Patrol Agents by not less than 2,000 in Fiscal Year 2007 and 2,400 in Fiscal Years 2008 – 2012. The amendment would also require deployment to the Northern Border of a number of border patrol agents equal to at least 20 percent of the total net increase in border patrol agents in each Fiscal Year.

Section 102. Technological Assets. S.A. 1150 would require DHS to acquire additional technological assets, such as unmanned aerial vehicles, cameras, sensors, poles, and other technologies to achieve operational control of the U.S. border. The amendment would also authorize funding for their acquisition in Fiscal Years 2008 through 2012.

Section 103. Infrastructure. S.A. 1150 would require construction of 14 miles of fencing near San Diego, starting at the Pacific Ocean and extending east, and the construction of second and third fences in addition to the existing reinforced fence.

Section 104. Ports of Entry. S.A. 1150 would authorize DHS to construct additional (and improve existing) ports of entry along the U.S. international land border.

Subtitle B – Other Border Security Initiatives

Section 111. Biometric Entry-Exit System. S.A. 1150 would authorize DHS to require non-citizens crossing the border to provide biometric data. Refusal to provide biometric information when it is requested of an alien would be a ground of inadmissibility, but the DHS Secretary would be given waiver authority. The Administrative Procedures Act would not have to be followed in implementing the entry and exit system.

Section 112. Unlawful Flight From Immigration or Customs Controls. S.A. 1150 would amend the U.S. Code to prohibit anyone operating a motor vehicle or vessel from knowingly evading a checkpoint and knowingly or recklessly disregarding or disobeying a DHS or law enforcement agent’s lawful command. The penalty for non-compliance would be not more than five years imprisonment and/or a fine for evading a checkpoint and not more than two years imprisonment and/or a fine for failure to obey a command. The amendment proscribes alternative penalties for different offenses, including a punishment of not more than 30 years in prison if the guilty party attempted to or inflicted bodily injury. The amendment also sets-forth forfeiture procedures and provides key definitions.

Section 113. Release of Aliens from Non-contiguous Territories. S.A. 1150 would require that nationals of a non-contiguous country who have not been admitted and who are apprehended within 100 miles of the border or present a ‘flight risk’ only be released upon paying a $5000 bond. No exception would be made for asylum seekers who have passed credible fear.

Section 114. Seizure of Conveyance with Concealed Compartment: Expanding the definition of conveyances with hidden compartments subject to forfeiture. S.A. 1150 would identify acts which constitute prima facie evidence of vehicles that are engaged in smuggling and authorize the seizure and forfeiture of these vehicles.

Subtitle C -- Other Measures

Section 121. Deaths at the United States-Mexico Border. S.A. 1150 would require the CBP Commissioner to collect statistics on the total number of deaths on the southern border and the causes of these deaths and to report to the DHS Secretary an analysis of these statistics and recommendations for reducing the number of deaths.

Section 122. Border Security on Certain Federal Land. S.A. 1150 would require an increased number of CBP personnel, unmanned aerial vehicles, and remote video surveillance camera systems and sensors to secure protected land along the international border. The CBP personnel would have to receive land use training coordinated with the National Park Service, the U.S. Fish and Wildlife Service or relevant agency within the Department of the Interior. The substitute would require that damage to protected land related to illegal border activity be analyzed and recommendations made regarding the appropriate cost recovery mechanism. The Departments of Homeland Security and Agriculture would be required to jointly develop a border protection strategy.

Section 123. Secure Communication. S.A. 1150 would direct DHS to develop and implement a plan to improve the use of satellite and other technology to ensure clear and secure two-way communication capabilities among all Border Patrol agents conducting operations between ports of entry, their respective border patrol stations, and between all appropriate border security agencies of the Department and state, local and tribal law enforcement agencies.

Section 124. Unmanned Aircraft. Systems. S.A. 1150 would also require the DHS Secretary to acquire and maintain additional unmanned aircraft for use on the border.

Section 125. Surveillance Technologies Programs. S.A. 1150 would require DHS, in consultation with DOD and the Federal Aviation Administration (FAA), to develop and evaluate a program to fully integrate and utilize aerial surveillance technologies, including unmanned aerial vehicles, to enhance the security of the international borders between the United States, Mexico, and Canada. The amendment would direct DHS to put in place an Integrated and Automated Surveillance Program (“virtual fence”) along the border and sets the parameters of such a program. The amendment would mandate that the DHS Inspector review each contract valued at more than $5 million.

Section 126. Surveillance Plan. S.A. 1150 would direct the DHS Secretary to develop a comprehensive surveillance plan that includes assessments of existing technologies, and descriptions of the compatibility of new surveillance with existing ones, DHS consultations with the FAA, and the kind of surveillance to be employed.

Section 127. National Strategy for Border Security. S.A. 1150 would direct the DHS Secretary to coordinate, in consultation with other appropriate Federal agencies, a comprehensive border security strategy. The strategy would have to include risk assessments, staffing needs, research and development priorities, detention space needs, legal requirements, an interagency division of labor, and performance metrics. DHS would also be required to consult with state, local and tribal authorities in land and maritime border communities.

Section 128. Border Patrol Training Capacity Review. S.A. 1150 would require the Comptroller General to conduct a study of the basic training provided to Border Patrol agents to ensure that such training is provided as efficiently and cost-effectively as possible. The study must identify language and cultural diversity programs provided in this training and compare the training with similar programs provided by other governmental, non-governmental, and private sector institutions.

Section 129. Biometric Data Enhancements. S.A. 1150 would require the DHS Secretary, not later than October 1, 2008, in consultation with the Attorney General, to enhance connectivity between the IDENT (DHS) and IAFIS (FBI) fingerprint systems to ensure expeditious searches. In addition, the amendment requires the DHS Secretary to work with the Secretary of State to ensure that all fingerprints of aliens who must be fingerprinted are collected in the entry-exit system.

Section 130. U.S. Visit System. S.A. 1150 would require the DHS Secretary to submit a timeline for equipping all land borders with the US-VISIT entry/exit system, developing and deploying the exit component of the US-VISIT system at all land borders, and making all border screening systems operated by DHS interoperable.

Section 131. Document Fraud Detection. S.A. 1150 would direct DHS to train CBP officers on identifying and detecting fraudulent travel documents; provide all CBP officers with access to the Forensic Documents Laboratory; and assess and report to Congress on the status of the work of the Laboratory.

Section 132. Border Relief Grant Program. S.A. 1150 would authorize DHS to award competitive grants in Fiscal Years 2008 through 2012 to eligible law enforcement agencies to assist them in addressing: (1) criminal activity that occurs in their jurisdictions due to their proximity to the border, and (2) the impact of any lack of security along the border. Funds could only be used to provide additional resources such as: equipment, additional personnel, technology, and operational costs, such as transportation and overtime. Priority for such grants would be given to agencies in communities of less than 50,000 people within 100 miles of the northern or southern border or to communities designated by DHS as “high impact areas.”

Section 133. Port of Entry Infrastructure Assessment Study. S.A. 1150 would require the General Services Administration, in consultation with CBP, to issue a report that identifies and prioritizes the port of entry infrastructure and technology improvement projects that would enhance border security and facilitate the flow of legitimate commerce if implemented. The report would be required no later than January 31 of every year.

Section 134. National Land Border Security Plan. S.A. 1150 would require DHS to prepare a vulnerability assessment of each port of entry located on the northern or southern border.

Section 135. Port of Entry Technology Demonstration. S.A. 1150 would direct DHS to carry out a technology demonstration program at 3 to 5 sites to test and evaluate new port of entry technologies, refine port of entry technologies and operational concepts, and train personnel under realistic conditions.

Section 136. Combating Human Smuggling. S.A. 1150 would require ICE, CBP, and other Federal, state, local, and tribal authorities to improve coordination efforts to combat smuggling by improving interoperability of data bases; personnel training; programs to target smuggling networks, utilization of visas for victims of trafficking and other crimes, and joint measures with the Secretary of State to enhance intelligence sharing. The amendment would also require DHS to report to Congress on the plan, and make recommendations, no later than one year after the plan is implemented.

Section 137. Increase of Federal Detention Space and the Utilization of Facilities Identified for Closures as a Result of the Defense Base Closure Realignment Act of 1990. S.A. 1150 would require DHS to construct or acquire, in addition to existing facilities, at least 20 detention facilities for aliens detained pending removal or a decision of removal with enough capacity to hold at least 20,000 individuals at any time. The amendment would also direct DHS to fully utilize all possible cost-effective options to increase available detention capacities.

Section 138. United States-Mexico Border Enforcement Review Commission. S.A. 1150 would establish a United States-Mexico Border Enforcement Review Commission to study and make recommendations to the President and Congress of the overall enforcement strategies, programs, and policies along the border. The Commission would consist of local governmental, local law enforcement, and community members appointed by border state governors.

Title II – Interior Enforcement

Section 201. Additional Immigration Personnel. S.A. 1150 would authorize increases in personnel in Fiscal Years 2008 – 2012 as follows: DHS would be authorized to hire additional trial attorneys, and United States Citizens and Immigration Service (USCIS) adjudicators; DOJ would be authorized to hire additional judicial clerks, Office of Immigration litigation attorneys, U.S. Attorneys, immigration judges, Board of Immigration Appeals members, and staff attorneys; and the Administrative Office of the U.S. Courts would be authorized to hired additional attorneys in the Federal Defenders Program. This section also authorizes the continuation and expansion of the Legal Orientation Program for immigration detainees.

Section 202. Detention and Removal of Aliens Ordered Removed. S.A. 1150 would amend Section 241 of the Immigration and Nationality Act (INA) to authorize detention beyond the statutory 90 day removal period for aliens who do not cooperate with attempts to remove them and for criminal aliens and other individuals who cannot be removed but who are considered too dangerous to be released into the public.

The DHS Secretary would be required to create an administrative review process for aliens who have cooperated fully with efforts to remove them, but who nonetheless cannot be removed. Under this process, the Secretary would have to certify that the alien poses a danger to the public based on a highly contagious disease; the release would have serious adverse foreign policy consequence; there is reason to believe that the alien poses a risk to the national security of the U.S.; or that based on the nature of past criminal activity or the likelihood of future violent activity, the alien poses a danger to the public. These certifications would be subject to review by the Attorney General, and the DHS Secretary would have to release the alien if the Attorney General concludes detention is not warranted. Review of the decision to continue detention would be required every six months, and any renewal would again be subject to review by the Attorney General. The Secretary would be authorized to require appropriate conditions of release when it is determined that an alien cannot be detained further.

Aliens who have not been admitted to the United States but who cannot be removed would be subject to existing regulations for continued detention, but the Secretary could elect to apply the requirements of this section to such aliens. The amendment would permit further review of detention decisions through habeas petitions in the U.S. District Courts.

This section also modifies Title 18 Section 3142 of the U.S.C. to allow a judicial officer in federal criminal proceedings to consider immigration status when determining whether the defendant is a flight risk or a danger to the community for the purposes of setting bail.

Section 203. Aggravated Felony. S.A. 1150 would amend the existing definition of “aggravated felony” by clarifying that the definition includes violations of law in a foreign country for which a term of imprisonment was completed within the previous 15 years. This substitute would also clarify that sexual abuse of a minor is an aggravated felony, regardless of whether the specific age is included in the record of conviction, and clarify that alien smuggling under Section 1342(a) of the INA is an aggravated felony. These amendments would take effect on the date of enactment. Illegal Immigration Reform and Immigrant Responsibility Act of 1196 (IIRAIRA) amendments to the INA shall continue to apply whether the conviction occurred on, before, or after the date of enactment.

Section 204. Increased Criminal Penalties Related to Gang Violence and Removal. S.A. 1150 would establish that any alien who has participated in the activities of a criminal gang knowing or having reason to know that such activities furthered the activity of the gang will be inadmissible or deportable. A “criminal gang” is specifically defined as an ongoing entity of five or more persons which has as one of its primary purposes the commission of a list of crimes enumerated in this section and that such crimes have been committed in the past five years. Aliens found to be inadmissible or deportable under this provision would be ineligible for temporary protected status (TPS). This provision also authorizes detention for any individual with TPS where the statute elsewhere authorizes such detention.

The amendment would also amend Section 243 to increase the penalty for failing to deport to no more than five years and increasing the term of imprisonment for willful failure to comply with the terms of release under supervision to no more than five years or ten under certain categories

Section 205. Illegal Entry. S.A. 1150 would amend Section 275 of the INA by increasing current criminal penalties for illegal entry, with escalation of fines and terms of imprisonment for repeated entries and entries after criminal convictions. Offenses under this section continue until the alien is discovered with the U.S. by an immigration officer. Current civil penalties for entry at improper time and place are retained.

Section 206. Illegal Reentry. S.A. 1150 would amend Section 276 of the INA by increasing existing criminal penalties for illegal re-entry. The amendment would provide for affirmative defenses based on compliance with any requirements to obtain consent to apply for readmission, the absence of any requirements in a particular case, and for removal orders entered against a minor who had not been convicted of a crime or adjudicated a delinquent minor. The substitute would require an alien to provide clear and convincing evidence of exhaustion of administrative remedies, fundamental unfairness in proceedings, or improper proceedings, in order to challenge the validity of the removal order in any criminal proceeding. The substitute would retain a requirement that an alien who was removed prior to completion of a prison sentence shall be re-incarcerated upon unlawful reentry.

Section 207. Reform of Passport, Visa and Immigration Fraud Offenses. S.A. 1150 would revise and expand 8 U.S.C., Chapter 75 by increasing penalties for fraudulent use or manufacture of passports, travel documents, and other immigration documents. The amendment would create enhanced penalties for trafficking in passports, false statements in an application for a passport, forgery and unlawful production of a passport, misuse of a passport, schemes to defraud aliens, immigration and visa fraud, including employment document fraud, and attempts and conspiracies to commit such offenses. The amendment would also authorize the seizure and forfeiting of any property used to commit a violation of this chapter.

The substitute amendment would authorize the Attorney General to develop binding prosecution guidelines for federal prosecutors to ensure that any prosecution of an alien’s entry into the U.S. by fraud is consistent with Article 31(1) of the 1951 Convention Relating to the Status of Refugees. No private right of action is established under these guidelines.

Section 208. Inadmissibility and Removal for Passport and Immigration Fraud Offenses. S.A. 1150 would amend the grounds of inadmissibility and deportability, consistent with the provisions of Section 208, to reflect violations of specific passport and immigration fraud offenses under Section 1541 (trafficking in passports), Section 1545 (schemes to defraud aliens), Section 1546(b) (commercial production of fraudulent immigration documents), and Section 1547(b) (entering into multiple marriages to evade immigration laws) of the INA.

Section 209. Incarceration of Criminal Aliens. S.A. 1150 would require the continuation of the Institutional Removal Program (IRP), or the development of another program, to identify removable persons in federal and state correctional facilities, ensure that they are not released into the community, and to deport them once they complete their sentences. The amendment would permit the program to be the expanded to all states. Further, the amendment would direct the use of technology, such as videoconferencing, to the maximum extent practicable to make IRP available in remote locations. The amendment would also require DHS to submit a report to Congress no later than six months after enactment.

Section 210. Encouraging Aliens to Depart Voluntarily. S.A. 1150 would revise and amend the procedures for voluntary departure in 240(B) of the INA. The amendment would continue to permit voluntary departure in lieu of removal proceedings, at the alien’s expense, for a period not longer than 120 days. During removal proceedings, the Secretary and alien could enter into an agreement for voluntary departure, not to exceed 60 days. As part of the agreement, the Secretary could agree to a reduction in future periods of inadmissibility. At the conclusion of removal proceedings, voluntary departure could be granted by an immigration judge for no more than 45 days. The amendment would increase the civil penalty for failure to depart voluntarily. The amendment would also revise the bar on discretionary relief to cover time within the United States as well as time after departure. Voluntary departure would only be made available to individuals who have not previously received this relief. Notwithstanding sections of the INA or habeas corpus provisions, no court would have jurisdiction to affect, reinstate, enjoin, delay, stay or toll the period allowed for voluntary departure.

Section 211. Deterring Aliens Ordered Removed from Remaining in the United States Unlawfully. S.A. 1150 would direct that an alien who fails to depart after being ordered removed be ineligible for discretionary relief during the time period the alien remains in the United States and for ten years after the date of departure from the United States. The alien would not be precluded from filing a motion to reopen to seek withholding of removal under INA 241(b)(3) or protection against torture where there is evidence of changed country conditions arising after the date of the final removal order. The substitute would also revise inadmissibility grounds to reflect that the ten year period of inadmissibility (or twenty years in some cases) is counted from date of departure.

Section 212. Prohibition of the Sale of Firearms to, or the Possession of Firearms by Certain Aliens. S.A. 1150 would prohibit the sale of firearms to, or possession of firearms by, an alien who is not a lawful permanent resident or who is a non-immigrant who has been lawfully admitted but not as an alien lawfully admitted for permanent residence.

Section 213. Uniform Statute of Limitations for Certain Immigration, Passport and Naturalization Offenses. S.A. 1150 would establish a statute of limitations for all immigration crimes and attempts at such crimes, including willful failure to register or to provide a change of address, as well as crimes involving trafficking in persons, for a period not later than ten years.

Section 214. Diplomatic Security Services. S.A. 1150 would expand the authority of special agents of the Department of State and the Foreign Service to investigate identity theft and document fraud relating to the programs of the Department of State, peonage and slavery, and federal offenses committed in the special maritime and territorial jurisdiction of the United States.

Section 215. Streamlined Processing of Background Checks Conducted for Immigration Benefits. S.A. 1150 would direct the DHS Secretary and the Attorney General to establish a task force to resolve cases where an application or benefit conferred under the Act was delayed due to an outstanding background check pending for more than two years from date the application or petition was initially filed.

Section 216. State Criminal Alien Assistance Program (SCAAP). S.A. 1150 would permit reimbursement of state and local governments for the costs of processing undocumented criminal aliens for indigent defense, criminal prosecution, autopsies, translators, and court costs. For Fiscal Years 2008 through 2012, the amendment would authorize appropriations of $400,000 annually.

Section 217. Transportation and Processing of Illegal Aliens Apprehended by State and Local Law Enforcement Officers. S.A. 1150 would authorize the Secretary to provide sufficient transportation and officers to take illegal aliens apprehended by state and local law enforcement authorities into federal custody.

Section 218. Reducing Illegal Immigration and Alien Smuggling on Tribal Lands. S.A. 1150 would create a grant program for Indian tribes with land adjacent to an international border that may have been adversely affected by illegal immigration. The grants could be used for law enforcement, health care, environmental restoration and preserving cultural resources. The amendment would further provide that within 180 days of enactment, the DHS Secretary shall must a report, including information on the level of access of Border patrol agents on tribal lands, the extent to which enforcement could be improved through enhanced access, and a strategy for obtaining access and identifying grants provided to Indian tribes that relate to border security.

Section 219. Alternatives to Detention. S.A. 1150 would require the Secretary to conduct a study of the effectiveness of alternatives to detention, including electronic monitoring devices and intensive supervision programs in ensuring the alien’s appearance at court and in compliance with removal orders.

Section 220. State and Local Enforcement of Immigration Laws. S.A. 1150 would amend Section 287(g) of the INA to require DHS to reimburse state and local governments for costs incurred for training and equipment related to enforcement of federal immigration laws. The amendment would authorize funds to reimburse these costs.

Section 221. Protecting Immigrants from Convicted Sex Offenders. S.A. 1150 would offers a technical amendment to the Adam Walsh Act, by amending Section 204(a)(1) of the INA to bar individuals convicted of the sex offenses in Sections 101(a)(43)(A), (I) and (K) from sponsoring family members unless DHS determines that the convicted citizen or permanent resident poses no risk to the alien being sponsored.

Section 222. Law Enforcement Authority of States and Political subdivisions and transfer to Federal custody. S.A. 1150 would create a new Section 240(D) to govern provisions for reimbursement of state and local government expenses associated with the costs of taking illegal aliens into custody.

Section 223. Laundering of Monetary Instruments. S.A. 1150 would amend Title 18 U.S.C., Section 1956(c)(7)(D) by inserting “Section 1590 (relating to trafficking with respect to peonage, slavery, involuntary servitude, or forced labor),” after “Section 1363 (relating to destruction of property within the special maritime and territorial jurisdiction),”; and by inserting “Section 274(a) of the INA (relating to bringing in and harboring certain aliens),” after “Section 590 of the Tariff Act of 1930.” These changes would add alien smuggling and trafficking to the list of crimes the financial proceeds from which are subject to the money laundering provisions of Title 18 of the U.S.C.

Section 224. Cooperative Enforcement Programs. S.A. 1150 would require the DHS Secretary, no later than two years after the date of enactment, to negotiate and execute, where practicable, a cooperative enforcement agreement under INA Section 287(g) with at least one law enforcement agency in each state to train law enforcement officers in the detection and apprehension of individuals engaged in transporting, harboring, sheltering or encouraging aliens in violation of Section 274.

Section 225. Expansion of the Justice Prisoner and Alien Transfer System. S.A. 1150 would require the Attorney General to expand the operations of the Justice Prisoner and Alien Transfer System (JPATS) to provide additional services with respect to aliens who are unlawfully present in the United States.

Section 226. Directive to the Sentencing Commission. S.A. 1150 would direct the Sentencing Commission to come up with guidelines and commentaries on sentencing for document and passport fraud.

Section 227. Cancellation of Visas. S.A. 1150 would allow the cancellation of all non-immigrant visas in an alien’s possession based on the alien’s violation of the terms of his or her non-immigrant classification.

TITLE III: Worksite Enforcement

Title III would re-write Section 274(A) of the INA, which makes it illegal to knowingly employ undocumented immigrants. In general, Title III would strengthen enforcement by tightening employment verification, improving systems through which employers verify workers’ identity and work eligibility (including by requiring employers to participate in an electronic eligibility verification system), and increasing penalties for non-compliance.

Section 302. Unlawful Employment of Aliens.

Making Employment of Unauthorized Aliens Unlawful: S.A. 1150 would re-establish that it is unlawful for an employer to hire, recruit, refer for a fee, or continue to employ an alien in the United States knowing or in reckless disregard that the alien is unauthorized with respect to such employment. It would also be illegal to knowingly employ unauthorized workers through contract. Employers can establish an affirmative defense that they have complied with this title by following required procedures for document review and, when required to do so, electronic eligibility verification.

Document Verification Requirements: As in the current system, S.A. 1150 would require employers to verify the identity and work authorization of employees by examining relevant documents, and attest to the employee’s work authorization under penalty of perjury. Employees would be able to present either: a U.S. passport or passport card (for U.S. citizens), a permanent resident card (“green card”) or employment authorization card (for non-citizens), or a temporary immigration benefits card (for Z-visa holders). Alternatively, they could present an identity document (in most cases, a REAL ID driver’s license or a non-REAL ID license plus birth certificate, naturalization certificate, or similar document) along with an employment authorization document (Social Security card). Non-REAL ID driver’s licenses could not be used after June 1, 2013. Employees would be required to attest to the veracity of these documents under penalty of perjury.

Employers would be required to keep records of document verification for seven years after the date of hire or two years after an employee is terminated, whichever is earlier. Employers would also be required to keep copies of employee documents as well as records related to Social Security no-match letters.

Electronic Eligibility Verification System (EEVS): S.A. 1150 would require the government to establish an electronic verification system. The DHS Secretary would require employers to participate in the system immediately upon passage of this Act, dependent upon risks to critical infrastructure, national security, or homeland security needs. All employers would be required to run new hires through the EEVS within 18 months, and re-verify all existing employees no later than three years after passage of the Act.

The substitute would require employers to register with the EEVS and receive training prior to participating. Employers would submit employees’ names, Social Security numbers, and alien numbers (non-citizens only) no earlier than the date of hire and no later than the first date of employment. Re-verification would have to occur on the date work authorization expires in the case of employees with limited work authorization, including Z-visa holders.

EEVS would return a confirmation, non-confirmation, or further action notice immediately in most cases, and always within three days. If the employee is confirmed, the employer records the confirmation and the process ends. If the employee receives a further action notice, the employer would be required to communicate this information to the employee. The employee would then have ten days to contact the appropriate agency to contest the further action notice or EEVS would issue a final non-confirmation. Employment must be terminated in the case of a final non-confirmation.

EEVS is supposed to provide a final confirmation or non-confirmation within 10 days of the employee’s contest. As long as the employee is taking steps required under the further action notice, the Secretary would be required to extend the period of investigation until a final confirmation or non-confirmation is issued. An employer could not terminate an employee on the basis of work eligibility until a non-confirmation becomes final. An employer could not terminate a non-confirmed employee if the employee has filed an administrative or judicial appeal and the Secretary or Commissioner or a court of appeals has stayed the non-confirmation. Such a stay would be mandatory unless the appeal is frivolous, unlikely to succeed on the merits, or filed for purposes of delay.

Impermissible Use of the EEVS: S.A. 1150 would prohibit an employer from using EEVS to verify an employee prior to an offer of employment, requiring the individual to self-verify as a condition of an offer of employment, terminating an employee solely as the result of a further action notice, and/or requiring employees to submit additional or different documents than those explicitly required. The employer would also be barred from taking any of the following actions in response to a further action notice: reducing salary or other compensation, suspending the employee without pay, reducing hours (if the reduction is accompanied by a reduction in salary), or denying necessary training. Employers would be required to enforce document verification and other EEVS procedures in an even manner without regard to the employee’s national origin or citizenship status.

The substitute amendment would require the DHS Secretary to establish a system for oversight and enforcement of these requirements (bypassing the existing Office of Special Counsel for Unfair Immigration-Related Employment Practices) and work with the Secretary of Labor to establish and maintain an employee complaint procedure. The amendment would set fines for violating these provisions up to $10,000 for each violation. The amendment would direct the DHS Secretary to disseminate information to employers and employees about these protections.

The amendment would prohibit employers from requiring an employee to post a bond or security (indemnity bond) to provide a financial guarantee or indemnity against a potential liability arising from the hiring, recruiting, or referring for a fee of the individual.

Administrative and Judicial Review for Employees: S.A. 1150 would provide that following a final non-confirmation, an employee has 15 days to file an administrative appeal of such notice with the Commissioner of Social Security (in the case of US citizens) or the DHS Secretary (non-citizens) based upon information the individual has provided as well as any additional evidence not previously considered. The amendment would direct the DHS Secretary or Commissioner to stay the final non-confirmation unless the Secretary or the Commissioner determines that the administrative appeal is frivolous, unlikely to succeed on the merits, or filed for purposes of delay. In this case, the employer could not terminate the employee until the administrative appeal is concluded. Administrative relief would be limited to an order upholding, reversing, modifying, amending, or setting aside the final non-confirmation; there would be no compensation for lost wages or other money damages of any kind.

The substitute amendment would permit, within 30 days of an administrative review decision, an employee to file a petition for judicial review with the US Court of Appeals for the judicial circuit in which the employee resides. The court would the stay the final non-confirmation unless the petition for review is frivolous, unlikely to succeed on the merits, or filed for purposes of delay. An employee would be required to file a brief not later than 40 days after the date on which the administrative record is available. The court of appeals would be limited to basing this decision on the petition upon the administrative record on which the final non-confirmation was based. The burden would be on the petitioner to show that the final non-confirmation decision was arbitrary, capricious, not supported by substantial evidence, or otherwise not in accordance with law. Administrative findings of fact would be conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.

Management of Electronic Employment Verification System: S.A. 1150 would require that EEVS be designed to maximize reliability and ease of use, respond accurately to queries, protect private information, to allow for auditing and use of data mining to detect identity fraud, and display a digital photograph of the employee based on records maintained by federal, state, and territorial agencies. DHS would be given access to data kept by these other agencies, including Social Security and IRS data. The Secretary and other federal and state agencies would be required to develop procedures to regulate this access and protect private data, but no specific limitations are discussed in the section.

Limits on use of the Electronic Eligibility Verification System: S.A. 1150 would limit the use of the system to enforcement of immigration laws, enforcement and administration of anti-terrorism laws, and enforcement of federal criminal law relating to functions of EEVS, including prohibitions on forgery, fraud, and identity theft.

Unauthorized Use or Disclosure of Information: S.A. 1150 would provide that any employee who knowingly uses or discloses EEVS data for unauthorized purposes be subject to a fine of $5,000 to $50,000 per violation

Compliance: S.A. 1150 would require the DHS Secretary to establish procedures for individuals to file complaints respecting potential violations of this title and to investigate those complaints. Immigration officers would be required reasonable access to examine employment records, and could compel witnesses by subpoena.

The substitute amendment would provide that if the secretary believes there has been a civil violation of this title’s requirements, the DHS Secretary issue a pre-penalty notice disclosing the material facts and alleged violations. Employers would be permitted to file a petition for the remission or mitigation of fines or penalties within 15 days, including any relevant evidence of good faith compliance. After considering an employer petition, if the DHS Secretary determines there was a violation, the Secretary would issue a written penalty claim, which could include:

· Civil penalties for hiring or continuing to employ an unauthorized alien: $5,000 for each unauthorized alien; $10,000 for each alien if the employer has previously been fined; $25,000 for each unauthorized alien if the employer has been fined more than once before; and $75,000 for each unauthorized alien if the employer has been fined more than twice before.

· Record-keeping or verification practices violations: $1,000 per violation; $2,000 per violation if fined once before; $5,000 if fined more than once before; $15,000 if fined more than twice before.

· Criminal penalties: an employer that engages in a pattern or practice of knowing violations would be fined not more than $75,000 for each unauthorized alien, imprisonment for not more than six months, or both.

· Loss of government contracts. An employer who is a repeat violator of this section or is convicted of a crime under this section would be subject to debarment from the receipt of federal contracts, grants, or cooperative agreements for a period of up to two years. The Secretary can waive or alter this debarment for an employer who already holds federal contracts, grants, or cooperative agreements after consultation with the relevant agencies.

The substitute would allow the Secretary to impose an order of internal review and certification of compliance, which would require the employer to certify that the employer is in compliance or has instituted a program to come into compliance. An employer would be required to respond to the order within 60 days.

If an employer fails to comply with a final penalty determination and the final determination is not subject to judicial review, the Attorney General would be able to file suit to enforce compliance in district court. If an employer is liable for a fee or penalty that is not eligible for judicial review, the fee or penalty would become a lien on the employer’s property.

Judicial Review for Employers: S.A. 1150 would permit employers to file a petition for review of a penalty by posting a bond or other guarantee of payment and filing the petition within 30 days of a final penalty determination. The petition would be filed in the judicial circuit court where the penalty claim was issued, and the employer would file a brief no later than 40 days after the date on which the administrative record is available. The court of appeals would be limited to adjudicating the employer’s petition based only on the administrative record on which the final determination was based.

Miscellaneous Provisions: S.A. 1150 would preempt any State or local law that requires the use of the EEVS in a fashion that conflicts with federal policies, procedures or timetables, or that imposes civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.

No-Match Notice: S.A. 1150 would authorize DHS and the Social Security Administration (SSA) to establish regulatory requirements for verifying the identity and work authorization of employees who are the subject of SSA no-match notices.

Challenges to validity: S.A. 1150 would restrict challenges to validity of this section to constitutional challenges and title 5, chapter 5 of the U.S.C. Any challenges would be brought within 90 days after the date the challenged section or regulation is first implemented. The court could not certify a class for purposes of a class action lawsuit, and may not award attorneys’ fees.

Section 303. Effective Date. This title would become effective on the date of enactment.

Section 304. Disclosure of Certain Taxpayer Information to Assist in Immigration Enforcement. S.A. 1150 would amend Section 6103 of the Internal Revenue Code to allow the SSA to provide protected taxpayer data to DHS for purposes of immigration enforcement. The Commissioner of Social Security could disclose: taxpayer identity information of each person who has filed an information return after calendar year 2005 which contains mismatched name and Social Security data or duplicate name and Social Security data. DHS contractors would be required to comply with SSA confidentiality safeguards.

Section 305. Increasing Security and Integrity of Social Security Cards. S.A. 1150 would require the Commissioner of Social Security to administer and issue fraud-resistant Social Security cards within six months of passage of the Act, and exclusively issue fraud-resistant cards beginning within two years of passage of the Act. The SSA would also be required to issue a report within six months on the feasibility of including biometric information on the Social Security Card.

Section 306. Increasing Security and Integrity of Identity Documents. S.A. 1150 would direct DHS to establish a grant program to award states grants for the purpose of bringing their driver’s licenses into compliance with the REAL ID Act. Only states that intend to comply with the REAL ID Act would be eligible for these grants.

Section 307. Voluntary Advanced Verification Program to Combat Identity Theft. S.A. 1150 would require the DHS Secretary to establish a voluntary program through which employers could submit an employee’s fingerprints to the EEVS for purposes of determining the identity and work authorization of the employee. Fingerprints could only be used for purposes of this program and fingerprint data would be required to be discarded after ten days unless citizens authorize DHS to retain their prints for purposes of preventing identity theft.

Section 308. Responsibilities of the Social Security Administration. S.A. 1150 would direct SSA to cooperate with DHS in managing the EEVS. SSA would also be required to identify and correct database errors. SSA would also develop a process whereby an individual can “freeze” the individual’s Social Security number to preclude confirmation under the EEVS based on that individual’s number until it is reactivated by that individual.

Section 309. Immigration Enforcement Support by the IRS and the SSA. S.A. 1150 would require the Treasury Secretary and DHS Secretary to establish a unit within the criminal investigation office of the Internal Revenue Service (IRS) to investigate violations of the Internal Revenue Code, including cases in which tax records seem to reveal identity fraud. Penalties for failing to file correct tax returns would be increased.

Section 310. Authorization of Appropriations. S.A. 1150 would also authorize funds to be appropriated in each of the five years beginning on the date of the enactment to increase to a level not less than 4,500 the number of DHS personnel assigned exclusively or principally to an office or offices dedicated to monitoring and enforcing compliance with this section and to acquiring, installing, and maintaining the technological equipment necessary to support the EEVS. The substitute would also authorize funds to be appropriated to the Social Security Commissioner for purposes of this section.

Title IV – Non-immigrant and Immigrant Visa Reform

Subtitle A -- Seasonal Non-Agricultural and Year-Round Non-immigrant Temporary Workers

Section 401. Non-immigrant Temporary Worker. S.A. 1150 would create a new temporary worker Y-1 visa that would allow an alien, who has a residence in a foreign country which the alien has no intention of abandoning and who is coming here to temporarily perform labor or services, if unemployed persons capable of performing such services cannot be found. The H-2A program would be reclassified as Y-2A and the H-2B program would be reclassified as Y-2B. The Y-1 program would only begin after the DHS Secretary certifies that the “trigger” requirements in Section 2 of this Act have been met.

Section 402. Admission of Non-immigrant Workers. S.A. 1150 would direct the Labor Secretary to issue regulations prescribing procedures that employers must follow to obtain a labor certification for Y-1 non-immigrant workers. The amendment would direct the DHS Secretary to issue regulations prescribing procedures that employers must follow to petition for Y-1 non-immigrant workers. Both Secretaries would also be required to prescribe by regulation additional procedures for collecting and verifying biometric data and validating the employment arrangement.

The amendment would require an employer desiring a Y non-immigrant worker to submit an application for labor certification of the job opportunity with the procedures established by Section 403.

The amendment would require an employer seeking to employ a Y non-immigrant worker to file a petition with the DHS Secretary. The petition would be accompanied by evidence that the employer has obtained a certification; evidence that the job offer was and remains valid; the name and other biographical information of the alien beneficiary and any accompanying spouse or child; and any biometrics from the beneficiary that the DHS Secretary may require by regulation.

The substitute would require petitions to be filed with the DHS Secretary within 180 days of the date of certification of the job opportunity under Section 403 by the Labor Secretary. If that deadline is not met, then the certification would expire and could not support a Y non-immigrant petition or be the basis for Y non-immigrant visa issuance.

The amendment would permit the DHS Secretary to request information to verify the attestations the employer made during the labor certification process and any other fact relevant to the adjudication of the petition.

An approved petition would have the same period of validity as the labor certification. The DHS Secretary could terminate an approved petition if it is determined that a material fact has changed, including a proffered wage rate, geographic location, or job duties. A single level of administrative review would be established to review denied or terminated petitions.

The amendment would allow a consular officer to grant a single-entry temporary visa to a Y non-immigrant who demonstrates intent to perform non-agricultural, lower skilled labor or services if there are no U.S. workers able, willing, and qualified to perform such labor or services. Y non-immigrant status would be granted if an individual could establish capacity to perform the labor or services required and present evidence of employment. Evidence from employers, employer associations, and labor representatives could be considered.

Applicants would be required to pay processing and adjudication fees, a state impact fee of $500 and an additional $250 for each dependent accompanying or following to join the alien, not to exceed $1,500 per family. They would also be required to undergo a medical examination.

Individuals would be required to submit a completed application that provides the following information: physical and mental health; criminal history, including all arrests and dispositions, and gang membership; immigration history; and involvement with groups or individuals that have engaged in terrorism, genocide, persecution, or who seek the overthrow of the U.S. Government.

Spouses and children could only accompany the Y non-immigrant applicant if the family could demonstrate household income that is 150 percent of the U.S. poverty guidelines and that the cost of medical care is covered by medical insurance.

Y non-immigrant applicants would be held to the same criteria of admissibility as Z visa applicants and required to undergo all appropriate background checks.

Approved Y non-immigrant applicants, not accompanied by dependents, would be admitted for two years, which could be extended for two additional two-year periods, provided the applicants reside one year outside the U.S. between each two-year extension.

Approved Y non-immigrant applicants accompanied by dependents would be limited to two two-year periods, but the family could only remain during one of the two two-year periods. Each period of admission would be supplemented by one week of travel time at the beginning of the period and 14 days of at the end of the period for departure. A Y non-immigrant who lives outside the U.S. and commutes during working days would be granted a three year period of admission.

The period of admission would terminate if the applicant is deemed ineligible, becomes inadmissible, uses false documents, or in the case of a Y-1 non-immigrant is unemployed for 60 or more consecutive days or an aggregate of 120 days, or in the case of a Y-2A applicant, is unemployed for an aggregate of 30 days. The applicant’s status would not terminate if the applicant establishes that unemployment was caused by physical or mental disability, authorized leave, or circumstances beyond the applicant’s control.

Y non-immigrants who overstay their period of authorized admission or enter illegally would be permanently barred from any immigration benefits. A Y non-immigrant could accept new employment with a subsequent employer, provided a new labor certification and petition are approved. The substitute would make it illegal for employers who petition for Y non-immigrants to threaten applicants for exercising their protected rights.

The amendment would establish a Temporary Worker Program Account to fund: (1) the Standing Commission on Immigration and Labor Markets, (2) Department of Labor (DoL) functions and responsibilities, including enforcement of labor standards and other applicable labor laws, and (3) DHS to improve immigration services and enforcement.

Further, a State Impact Assistance Grant Program would also be established to provide health and education services to non-citizens.

Section 403. General Y Non-immigrant Employer Obligations. S.A. 1150 would require employers seeking temporary workers (“Y workers”) to file an application (including an attestation of the terms and conditions of the temporary worker’s employment) and pay a processing fee between $500 and $1,250, depending on the size of the employer.

Before applying for a temporary worker, employers would be required to work with the appropriate state agency to circulate the job description, post the availability of the job in the employer’s workplace, advertise the job for 10 consecutive days in a newspaper of wide circulation, and advertise in trade or ethnic publications, if appropriate. The employer would also be required to offer the job to any qualified American worker at the same wages, benefits, and working conditions that the employer would be legally required to pay a temporary worker.

The amendment would require the attestation accompanying an employer’s application to confirm that:

The temporary worker is not taking a U.S. worker’s job or affecting the wages or working conditions of U.S. workers;

The temporary worker will be paid prevailing competitive wages (defined by the Bureau of Labor Statistics unless a union contract or other prevailing wage law applies);

The temporary worker is not going to a workplace where there is a strike, lockout, or other labor dispute;

The temporary worker will have workers’ compensation insurance or other equivalent insurance for workplace injury and disease;

The employer has notified its employees and/or their bargaining representative of the application;

There are not sufficient American workers willing and available to take the job, despite efforts to recruit them at prevailing wages; and

The employer is not barred from participating in the temporary worker program.

The Labor Secretary could audit the attestations of employers who apply for Y workers.

The amendment would bar certain employers from seeking Y workers:

Employers who have misrepresented a material fact or made a fraudulent statement on an attestation; failed to comply with the terms of an attestation; committed serious violations of child labor laws, wage and hour laws, or occupational safety and health laws within three years prior to filing the application; or failed to cooperate with the Labor Secretary’s audit of an attestation would be barred for up to three years; and

Employers convicted of a slavery or human trafficking offense would be barred permanently.

Employers would also be barred from applying for temporary workers if the job is located in a county with a high unemployment rate (more than seven percent). Employers could apply to DoL for a waiver of this provision but must include documentation of their recruitment efforts and advertise for an additional ten days in local markets.

The substitute would prohibit temporary workers from being treated as independent contractors, and employers would have to comply with all applicable federal, state, and local tax and revenue laws with respect to temporary workers.

Employers could not retaliate against workers who report violations of the Y program. Y workers who have filed non-frivolous complaints about violations of immigration laws or labor or employment laws would have additional time (120 days or such period as the DHS Secretary prescribes, if the workers is a necessary witness) to seek another job.

Employers could only use foreign labor contractors that are registered with the Labor Secretary. Employers, and the foreign labor contractors, would be required to disclose to workers at the time of recruitment – in the worker’s native language – the details of the employment offer, including the place and type of employment, compensation, term of employment, benefits provided, availability of workers’ compensation coverage, travel or transportation expenses to be assessed, and/or education or training to be provided to the worker. Contractors could have their license suspended or revoked for misrepresenting information. Further, a contractor – or, in some cases, the employer who uses that contractor – could face civil penalties for failing to comply with these requirements or for failing to adhere to representations made to workers.

Temporary workers could not be required to waive their rights under this section. Employers or labor recruiters who fail to comply with the requirements of this section would be subject to penalties, including back wages and benefits, civil monetary penalties up to $5,000 per violation per affected worker, or, for a willful violation where a U.S. worker was harmed, up to $35,000 per violation per affected worker. They would also be subject to criminal penalties for retaliation against whistleblowers when such retaliation results in extreme physical or financial harm to the individual.

Subtitle B -- Seasonal Agricultural Non-immigrant Temporary Workers

Section 404. Amendment to the Immigration and Nationality Act. S.A. 1150 would reform the existing H-2A program for the temporary admission of alien agricultural workers. Employers desiring to employ H-2A aliens would have to first file an application, accompanied by a copy of the job offer(s) and qualifications, with the Labor Secretary. If the job opportunities for which the application is filed are covered by a collective bargaining agreement, the applicant would be required to assure that the collective bargaining representative has been notified of the application, the job opportunities are not vacant because the occupants are on strike or locked out, are temporary or seasonal (maximum duration of 10 months), have been or will be offered to U.S. workers, and are covered by workers’ compensation insurance.

If the job opportunities are not covered by a collective bargaining agreement, the applicant would be required to assure that the minimum wages, benefits and working conditions required have been provided, U.S. workers have not been and will not be displaced, and that U.S. workers have been recruited.

The substitute would also require that workers in H-2A approved occupations, outside the normal commuting distance, be provided housing, at no cost to the worker, or a monetary housing allowance if there is sufficient housing in the intended employment area. Further workers outside normal commuting distance would have to be reimbursed reasonable costs for inbound transportation and subsistence, if they complete 50-percent of the period of employment, and return transportation and subsistence, if they complete the period of employment.

The amendment would also require that workers be paid the federal, state or local statutory minimum wage (whichever is highest), the prevailing wage for the occupation in the area of intended employment, or the applicable Adverse Effect Wage Rate (AEWR). The AEWR could not be greater than the applicable AEWR on January 1, 2003. If Congress fails to set a new wage standard applicable to H-2A workers within three years after the date of enactment, thereafter, the existing AEWRs would be annually indexed by the percentage change in the Consumer Price Index, with a maximum adjustment of four percent annually. During the three years after enactment, the General Accounting Office would be directed to conduct a study of the H-2A wage standard and make a report to Congress. A Congressional commission would also be appointed to conduct such a study and make recommendations to Congress.

Workers would be guaranteed employment for a minimum of three-quarters of the period of employment for which they were recruited. Motor vehicle safety and insurance standards would be required for vehicles and drivers used to transport agricultural workers in H-2A occupations similar to those required for domestic farm workers under current law. The substitute would also require employers of H-2A workers to assure compliance with all applicable federal, state and local labor laws.

Employers with valid labor certifications from the Labor Secretary could petition the DHS Secretary for approval to admit aliens to perform the work described on the labor certification, or for the extension of stay of H-2A aliens already in the United States who are completing a prior period of authorized H-2A employment. DHS would be required to adjudicate the petition within seven working days.

H-2A aliens would be admitted or extended for the period of employment of an approved labor application, not to exceed 10 months. Employers could petition to extend the stay of H-2A aliens until they have accumulated a maximum of years of continuous stay in the United States as an H-2A alien, after which the alien must depart the United States. An H-2A alien must remain outside the United States for a period equal to at least 1/5 of the alien’s presence in H-2A status before again being admitted as an H-2A alien.

The Labor Secretary would be required to establish a process for the receipt, investigation and disposition of complaints respecting an employer’s failure to meet the conditions of employment. H-2A aliens would be provided a private right of action to enforce the housing, transportation, wage, employment guarantee, motor vehicle safety, discrimination provisions, and the written promises contained in the employer’s job offer. Mediation of the complaint would be required, if any party requests it, before a lawsuit could proceed.

Workers’ compensation benefits would be the exclusive remedy for losses covered by workers’ compensation.

Discrimination against a worker who files a complaint or cooperates in an investigation or proceeding in connection with a complaint would be prohibited.

The amendment would also extend the reach of the law to cover associations and members of associations employing workers in H-2A certified occupations.

Section 405. Determination and Use of User Fees. S.A. 1150 would permit the DHS Secretary to establish employers’ fees for applying for certification to employ H-2A aliens to cover the actual direct costs of operating the H-2A program.

Section 406. Regulations. S.A. 1150 would require that the Labor Secretary, DHS Secretary and Secretary of State’s regulations be issued no later than one year after the date of enactment.

Section 407. Reports to Congress. S.A. 1150 would require the DHS Secretary to report to Congress, no later than September 30 of each year, about information compiled during the previous year with regard to the usage and operation of the H-2A program, as well as the number of workers who applied and were adjusted to blue card and permanent resident status. No later than 180 days after this bill’s enactment, the DHS Secretary would report to Congress regarding steps being taken to implement it.

Section 408. Effective Date. Sections 404 and 405 would take effect one year after the date of enactment, or the promulgation of regulations, whichever is sooner.

Section 409. Numerical Limitations. S.A. 1150 would sets the following numeric limits for Y visas.

400,000 annual limit on Y-1 visa holders with an escalator up to 600,000; and

100,000 with an escalator up to 200K for Y-2B (formerly H-2B) visa holders.

Section 410. Requirements for Participating Countries. S.A. 1150 would permit the Department of State to, as a condition of granting Y non-immigrant status to foreign nationals, negotiate bilateral agreements with foreign countries. The substitute would establish the sense of Congress that such bilateral agreements would require participating countries to accept the return of removed nationals, cooperate in reducing gang membership, trafficking and smuggling, and control illegal immigration.

Section 411. Compliance Investigators. S.A. 1150 would require DoL to hire 200 new investigators per year for the next five years, who are dedicated to the enforcement of labor standards, including those under the immigration laws, the Fair Labor Standards Act, and the Occupational Safety and Health Act in geographic and occupational areas with high percentages of Y non-immigrant workers.

Section 412. Standing Commission on Immigration and Labor Markets. S.A. 1150 would create a commission to study non-immigrant programs, including the development and implementation of such programs; the criteria for the admission of temporary workers; the formula for determining the annual numerical limitations of the Program; the impact on immigration; the impact on the economy, unemployment rate, wages, workforce, and businesses of the United States; the allocation of immigrant visas; and other matters it deems appropriate. The commission would then make recommendations to Congress.

Section 413. Agency Representation and Coordination. S.A. 1150 would amend current immigration laws to prohibit ICE officials from misrepresenting to employees or employers that they are members of any other agency or organization that provides domestic violence services, enforces health and safety laws, provides heath care services, or any other services intended to protect life and safety.

Section 414. Bilateral Efforts with Mexico to Reduce Migration Pressures and Costs. S.A. 1150 would make it the sense of Congress that the economic state of Mexico greatly impacts U.S. immigration. The Partnership for Prosperity program between Mexico and the U.S. should be accelerated to promote economic growth and an improved standard of living in Mexico.

Section 415. Willing Worker-Willing Employer Electronic Database. S.A. 1150 would direct DoL to establish a publicly accessible internet website that provides a single link to each State’s electronic job bank.

Section 416. Enumeration of Social Security Numbers. S.A. 1150 would require the DHS Secretary, in consultation with the Social Security Commissioner, to implement a system to issue Social Security numbers to Y non-immigrants.

Section 417. Contracting. S.A. 1150 would permit the DHS Secretary or Labor Secretary to contract with or license entities to implement provisions of this title.

Section 418. Federal Rulemaking Requirements. S.A. 1150 would permit the DHS Secretary or Secretary of Labor to issue an interim final rule to implement this subtitle within six months of enactment.

Subtitle C – Non-immigrant Visa Reform

Section 419. Student Visa. S.A. 1150 would extend foreign students’ post-curricular Optional Practical Training (and F-1 status) to 24 months. The amendment would also create a new “F-4” student visa for students pursuing an advanced degree in math, engineering, technology or the physical sciences.

Section 420. H-1B Streamlining and Simplification. S.A. 1150 would raises the H-1B cap to 115,000 visas per year, with a formula for additional increases, but establish a ceiling of 180,000 visas in any given Fiscal Year.

As a minimum for entry, the amendment would require a bachelors or advanced degree in a specialty occupation from a U.S. educational institution or equivalent foreign institution.

Section 421. H-1B Employer Requirements. S.A. 1150 would require all employers seeking to hire an H-1B visa holder to pledge that they have made a good-faith effort to hire American workers first and that the H-1B visa holder will not displace an American worker for 180 days.

The substitute would prohibit H-1B employers from advertising a job as available only to H-1B visa holders or from recruiting only H-1B visa holders for a job. The amendment would also prohibit companies from hiring H-1B employees if they employ 50 or more people and more than 50 percent of their employees are H-1B visa holders.

Section 422. H-1B Government Authority and Requirements. S.A. 1150 would give DoL expanded authority to review employers’ H-1B applications for “clear indicators of fraud or misrepresentation of material fact.” Currently, DoL is only authorized to review applications for “completeness and obvious inaccuracies.” The substitute would also give DoL 14 days to review H-1B applications, instead of the seven days currently permitted, and give DoL the authority to conduct investigations for 24 months, instead of the 12 months currently permitted.

Further, the amendment would also expand DoL’s authority to conduct employer investigations, streamline the investigative process by permitting DoL to initiate its own investigations, and eliminate the requirement that the DoL Secretary personally authorize an investigation.

The amendment would require DHS to share with DoL any information in H-1B visa applications that indicate an H-1B employer is not complying with program requirements. The substitute would also give DoL the ability to conduct random audits of any company that uses the H-1B program and require DoL to conduct annual audits of at least 1 percent of all H-1B employers.

Moreover, the substitute would double penalties for employers who violate H-1B program requirements. The amendment would also require the government to provide H-1B visa holders with information about their rights.

Section 423. L-1 Visa Fraud and Abuse Protections. S.A. 1150 would require that if the petitioner is to open or be employed in a new office, the petition may only be approved for one year, if the petitioner has not been the beneficiary of two or more petitions with in the past two years and only if the employer has:

An adequate business plan;

Office space to implement the plan; and

Finances to start the business upon approval of the petition.

An extension of the petition would be prohibited until the employer and petitioner could show they have been doing business in the manner required by this section for the one year period. The dependent spouse of the L-1 visa holder could not work during the 12 months.

The amendment would establish a process for DoL to investigate, audit, and penalize L-1 employers who violate immigration laws.

Section 424. Whistleblower Protections. S.A. 1150 would strengthen existing whistleblower protections for the H-1B program and establish whistleblower protections for the L-1 program. The amendment would also require H-1B employers to provide H-1B employees’ immigration documents to the employees upon request.

Section 425. Limitations on Approval of L-1 Petition for Start-up Companies. S.A. 1150 would make certain additional changes to the L visa program.

Section 426. Medical Services in Underserved Areas. S.A. 1150 would make permanent the Conrad 30 program, which allows J-1 doctors to receive waivers to work three years in underserved areas and avoid returning to their home countries.

The amendment would allow certain underserved states that have used all of their 30 waiver slots in the program to get an additional 20 slots, provided that certain highly underserved rural states (that have had trouble recruiting Conrad doctors) have received a guaranteed minimum number of Conrad doctors. These changes would be part of a three year pilot program, which the amendment would sunset after three years.

Currently, doctors serving their three years in the Conrad 30 program must convert from the J-1 visa to an H-1B visa. This provision would allow doctors to serve the three years under other appropriate status categories.

Currently, a Conrad 30 doctor must begin working within 90 days of receiving the waiver, which is sometimes procedurally difficult if a physician’s waiver is approved before the doctor has finished his or her training. This section would allow doctors to begin working within 90 days of completing their residency and fellowship programs or 90 days from the date of approval of the waiver, whichever is later.

Section 427. Autorization of Approriations. S.A. 1150 would authorize the funding necessary to implement this title.

TITLE V: Immigration Benefits

Section 501. Rebalancing of Immigrant Visa Allocation. S.A. 1150 would set the worldwide ceiling on family-based visas at 567,000 until pre-May 2005 backlogs have been eliminated. Once the backlog is eliminated, the worldwide ceiling would drop to 127,000.

The amendment would also set three merit-based, special, and employment created ceiling levels at:

247,000 visas in the first five Fiscal Years after enactment, with 10,000 set aside for exceptional Y visa holders and 90,000 set aside for reducing the employment-based backlog that exists on the date of enactment.

140,000 visas in Fiscal Years 6 or 7, with 10,000 set aside for exceptional Y visa holders and 90K set aside for reducing the employment-based backlog that exists on the date of enactment.

380,000 once Z visa holders become eligible for immigrant visas, with a 10K set aside for exceptional Y visa holders.

Temporary Supplemental Allocation for Z Adjustments: Once the backlog on family-based applications is cleared, S.A. 1150 would authorize a temporary supplemental allocation of greencards for Z visa holders. Each year, 20 percent of Z visa holders would be eligible for greencards each year for five years. Additional greencards would be available beyond the fifth year, as needed, to all eligible Z visa holders.

Section 502. Increasing American competitiveness through a merit-based evaluation system for immigrants. S.A. 1150 would eliminate employment preference categories 1, 2, and 3 and replace it with a merit-based preference system. Merit points would initially assigned as follows with a total of 100 points that could be earned:

Category	Description	Max pts (100 Max points)
Employment		47
Occupation	· U.S. employment in Specialty Occupation (DoL definition) – 20 pts · U.S. employment in High Demand Occupation (BLS largest 10-yr job growth, top 30) – 16 pts
National interest / critical infrastructure	· U.S. employment in STEM or health occupation, current for at least one year – 8 pts (extraordinary or ordinary)
Employer endorsement	· A U.S. employer willing to pay 50 percent of LPR application fee either (1) offers a job, or (2) attests for a current employee – 6 pts
Experience	· Years of work for U.S. firm – 2 pts/year (max 10 pts)
Age of worker	· Worker’s age: 25-39 – 3 pts
Education (terminal degree)	· M.D., M.B.A., Graduate degree, etc. – 20 pts Bachelor’s degree – 16 pts Associate’s degree – 10 pts High School diploma or GED – 6 pts Completed certified Perkins Vocational Education program – 5 pts · Completed DoL Registered Apprenticeship – 8 pts STEM, assoc & above – 8 pts	28
English & civics	· Native speaker of English or TOEFL score of 75 or higher – 15 pts TOEFL score of 60-74 – 10 pts Pass USCIS Citizenship Tests in English & Civics– 6 pts	15
Extended family (Applied if threshold of 55 in above categories.)	· Adult (21 or older) son or daughter of USC – 8 pts · Adult (21 or older) son or daughter of LPR – 6 pts · Sibling of USC or LPR – 4 pts · If had applied for a family visa in any of the above categories after May 1, 2005 – 2 pts	10
Category	Description	Max pts
Supplemental schedule for Zs
Agriculture National Interest	· Worked in agriculture for three years, 150 days per year – 21 pts · Worked in agriculture for four years (150 days for three years, 100 days for one year) – 23 pts · Worked in agriculture for five years, 100 days per year – 25 pts	25
U.S. employment exp.	· Year of lawful employment – 1 pt	15
Home ownership	· Own place of residence – 1 pt/year owned	5
Medical Insurance	· Current medical insurance for entire family	5

S.A. 1150 would also give DHS the authority to establish regulations regarding the petition process to be admitted through the merit-based system and create a standing commission on immigration and labor markets to evaluate the relative weighting and selection criteria included in the point system. Petitions that have not been granted within a three year period would be deemed denied.

Section 503. Reducing Chain Migration. S.A. 1150 would:

Eliminate family preference categories 1, 2B, 3, and 4;
Redefine immediate relatives to exclude parents of U.S. citizens;
Create a new preference category for parents of citizens and create an annual ceiling of 40K;
Maintain 2A category at current approximate annual ceiling of 87,000; and
Set aside 440K visas to reduce pre-May 2005 family backlogs in the 1, 2B, 3, and 4 categories.

Section 504. Creation of Process for Immigration of Family Members in Hardship Cases. S.A. 1150 would create 5,000 new hardship-based immigrant visas for individuals with familial relationships that would have qualified them for sponsorship under former 1, 2B, 3, or 4 preference categories. The petitioner would be required to establish extreme hardship to his/herself or the beneficiary that could not be alleviated with temporary visits. Petitions that are not granted would terminate at end of the Fiscal Year.

Section 505. Elimination of Diversity Visa Program. S.A. 1150 would eliminate the diversity visa program and repeal the NACARA provision, which would reduce the Other Worker category from a current 10,000 to 5,000.

Section 506. Family Visitor Visas. S.A. 1150 would create a new special visitor visa for parents of U.S. citizens and for spouses and minor children of Y-1 visa holders. The terms of the visa would include:

A $1,000 bond to be forfeited if the visiting beneficiary overstays his/her visa;
A requirement that the host have the financial means to return the visitor back to his/her home country;
A cap of 30 days visitation per year;
A prohibition on the beneficiary working;
A permanent bar on a visitor who overstays his/her visitor visa;
A permanent bar on U.S. citizens or Y-1 visa sponsors from sponsoring future individuals if a previous beneficiary overstayed his/her visa;

revocation of Y-1 non-immigrant status for the Y-1 visa host of an alien who overstays his/her visa; and

a prohibition on adjustment or change of status.

The amendment would direct the DHS Secretary to report to Congress on the program, especially on the rates of overstays. Rates of overstays in excess of seven percent by nationals of a country could lead to termination of program for such nationals and ultimately to termination of the visitor visa program.

Section 507. Prevention of Visa Fraud. S.A. 1150 would permit the DHS Secretary to audit and evaluate information furnished as part of the immigrant petition.

Section 508. Increasing Per-Country Limits for Family-Based and Employment-Based Immigrants. S.A. 1150 would increase per-country limits on remaining family categories and on merit-based categories to 10 percent.

TITLE VI –Legalization

Section 601. Non-immigrants in the U.S. Previously in Unlawful Status. S.A. 1150 would create a new Z non-immigrant visa category for individuals currently in undocumented status who have been continuously physically present since January 1, 2007 and are admissible under immigration laws, with exceptions.

The amendment would also allow spouses, children, and elderly parents of such workers to obtain a Z visa provided they were also continuously physically present in the U.S. since January 1, 2007. Children would have to be under the age of 18 on date of application and the natural-born or legally adopted child of the working Z visa holder. If the break-up occurred within two-years of S. 1348’s introduction in the Senate and was the result of domestic violence, a former spouse of a working Z visa holder would be permitted to claim Z status.

Several current grounds of inadmissibility would no longer apply, including the unlawful presence, failure to attend a removal proceeding, and misrepresentation and false claims to U.S.C. The DHS Secretary would not be permitted to waive grounds to some more serious offenses, including those related to criminal activity and security risks.

The following exceptions would apply to Z visa eligibility:

Individuals subject to final orders of removal;

Individuals subject to reinstatement orders;

Individuals who have persecuted others are ineligible;

Individuals who have been convicted of one felony, one “aggravated felony” as defined by the INA Section 101(a)(43), three or more misdemeanors, one “crime of violence,” or one crime of reckless driving or DUI if the crime results in an injury are ineligible;

Individuals who have entered or attempted to enter the U.S. illegally after January 1, 2007 are ineligible; and

Spouses and children of the principal Z visa holder (the worker) under 18 are ineligible if the worker is ineligible.

An extreme hardship waiver is available to individuals with final order or reinstatement orders, provided they were not already physically removed.

Application Process: S.A. 1150 would authorize the appropriation of funds to implement the legalization program. Starting six months after date of enactment, U.S. CIS would issue an interim final rule and begin accepting Z visa applications. The application period would last one year. The DHS Secretary would be permitted to extend the application period another twelve months.

DHS would be required to broadly disseminate information about the Z program for a period of two years following the issuance of regulations implementing the program. The information would also be made available to employers and labor unions, and be communicated through media sources used by immigrants in five languages spoken the most by immigrants.

The amendment would require the Z visa applicant to pay an initial processing fee that would fully cover adjudications costs, with a cap of $1500 per beneficiary. The principal applicant would also pay a penalty of $1000 and a State Impact Assistance Fee of $500. Finally, the principal applicant would pay a $500 penalty for each derivative. The total for a family of four to make an initial Z visa application could run as high as $9000.

The Z visa applicant would also have to:

Complete a detailed application form, including providing data on employment history, immigration history, and other factors relating to his eligibility for a Z visa;

Submit fingerprints for a background check;

Submit to an interview by USCIS;

Provide evidence of continuous physical presence, employment, or education needed to meet the statutory requirements for a Z visa. Acceptable forms of evidence would include Federal, State, or local government records, bank records, business/employer records, union or day laborer center records, remittance records, and other documentation designated by the DHS Secretary

Once a complete application is accepted by the agency, USCIS would have one business day to conduct an initial background check before issuing the applicant an interim work authorization, discretionary advance parole, interim protection from deportation, and temporary suspension of their classification as an unauthorized alien. Such benefits would be evidenced in a tamper-proof document issued by DHS.

The amendment would in effect issue an interim stay of removal for immigrants who are picked up between date of enactment and the last day of initial registration for a Z visa, or who are in removal proceedings during that time period, provided they establish prima facie eligibility.

The burden of proof for determining whether an alien has satisfied the requirements of this section would be “a preponderance of the evidence.”

Once the Z visa is granted (after all background checks are complete), the applicant would receive new documentary evidence of status and applicable benefits.

The Z visa (and future green card) applicant would not be deemed ineligible for using or having used fake documents prior to applying. However, applicants who are denied Z visas or immigrant visas could be prosecuted for having used false documents.

Terms of Status: S.A. 1150 would require a Z visa to be valid for an initial four years, and permit visa holders, their spouses, and children to work (including complete portability) and travel. This visa could be extended indefinitely, provided certain conditions are met. To extend the Z visa, the immigrant must:

· Remain eligible for a Z visa (including the work requirement). If they were a derivate, the principal must remain eligible for a Z visa;

· Have timely filed all change of address notifications;

· Pay an extension fee that will fully cover adjudications costs, with a cap of $1500 per beneficiary. The total for a family of four to extend their Z visas could run as high as $6000;

· For the first renewal, demonstrate effort to learn English and U.S. civics (either by taking the exam administered to naturalization applicants or enrollment/attempted enrollment in an English class); and

· For the second renewal, demonstrate proficiency in English and knowledge of U.S. civics by passing the exam administered to naturalization applicants.

Exceptions to the English language and civics requirements would be made for minors (under 18), disabled people, and long-term U.S. residents over 50.

The amendment would permit, at his/her discretion, the DHS Secretary to forgive delays in filing Z visa extensions and/or lapses in status. A limited exception would be made for victims of domestic violence.

A Z visa holder would not be permitted to change his/her status to another non-immigrant visa classification other than the U visa (for crime victims).

Further, the principal applicant (and any child over 16) would have to remain employed, unless he/she is a full-time student, disabled, or unable to work due to a pregnancy. There is a limited exception for force majeure, interruptions as determined by the Secretary.

The amendment would provide that a Z visa be terminated if the visa holder fails to timely file an extension of status, becomes ineligible for such status (including by failing to maintain employment), is found removable for criminal conduct, is found newly inadmissible, or uses the Z visa documentation fraudulently. Spouses and children of Z visa holders would lose their visas if the principal becomes ineligible.

Section 602. Earned Adjustment for Z Status Aliens. In order to obtain legal permanent residency, S.A. 1150 would require Z visa holders to file an application for adjustment of status in person at a U.S. consulate in their country of origin. The DHS Secretary would have discretion in setting the consular filing requirement.

Once the pre-May 2005 backlogs have been eliminated, all Z visa holders would be eligible for five years to apply for permanent residence. Green cards would be allocated through a merit-based point system over the course of five years. Derivatives must also meet these green card requirements. Limited exceptions would apply for victims of domestic violence.

The principal applicant would be required to pay a $4000 penalty in addition to application fees, and undergo a health screening. He/she would also have to pay taxes during her tenure as a Z visa holder or enter into a payment plan with the IRS to do so.

Green cards would not be given to former Z visa holders until existing backlogs in family-based and employment-based visas are cleared out. The wait period extends until thirty days after people who applied for immigrant visas before May 2005 are current.

Section 603. Administrative Review, Removal Proceedings, and Judicial Review for Aliens Who Have Applied for Z Status.

Administrative Review: S.A. 1150 would permit an applicant whose status has been denied, terminated, or revoked under this to file an administrative appeal no later than 30 days after the decision. Review would be based on the record established at the time of the determination and any newly discovered or previously unavailable evidence. The applicant would be entitled to one motion to reopen or reconsider.

Review in Removal Proceedings: An applicant who receives a denial of the administrative review would be able to request removal proceedings under Section 240 of the INA to seek review before an immigration judge.

An applicant whose status has been denied, terminated, or revoked based on aggravated felonies convictions could be placed in administrative removal proceedings under Section 238(b) of the INA.

An applicant whose status has been denied, terminated, or revoked based on other crimes could be placed in removal proceedings under Section 240 of the INA to seek review before an immigration judge.

Applicants in removal proceedings would be entitled to one motion to reopen or reconsider.

Judicial Review: S.A. 1150 would allow an applicant whose status has been denied, terminated, or revoked under this title, and who has exhausted administrative remedies, to seek judicial review under Section 242 of the INA. Review would be based on the administrative record. Findings of fact would be conclusive unless a reasonable adjudicator is compelled to conclude to the contrary, and legal determinations would be conclusive unless manifestly contrary to law.

Constitutional challenges, as well as challenges to the regulations or implementation of the programs in this title, may be brought in the United States District Court for the District of Columbia. Such challenges would be filed no later than one year after enactment relating to constitutional changes, or one year after the promulgation of regulations, or one year after the implementation of policies and directives. Class actions would be allowed.

Section 604. Mandatory Disclosure of Information. S.A. 1150 would prohibit a federal agency from using, releasing, or permitting anyone to examine information furnished by an applicant under Title VI of this Act, or the fact that the applicant applied for such status, or any subsequent application to extend status or apply for adjustment of status to lawful permanent residence.

The confidentiality provisions would not apply if the applicant:

· has been denied, terminated, or revoked under Title VI of this Act because the applicant is determined to be inadmissible or deportable under the criminal or terrorism grounds, has committed fraud in the application, is a smuggler, or is deportable because of marriage fraud;

· is convicted of a felony, an aggravated felony, three misdemeanors, or a serious crime as defined in 101(h) of the INA;

· has engaged in persecution;

· has engaged in fraud, willful misrepresentation, concealment of a material fact, or knowingly offered a false statement or document; and

· knowingly and voluntarily waived in writing confidentially.

Information furnished or derived from an application could be disclosed in connection with a criminal or national security investigation or prosecution.

The amendment would permit DHS to audit and evaluate information furnished as part of the applications under Title VI to identify fraud or fraud schemes and use the information for prosecution, denial, or termination of benefits.

Section 605. Employer Protections. S.A. 1150 would prohibit copies of employment records, or other evidence of employment provided by the applicant or the applicant’s employer, to be used in the prosecution of the employer for violating immigration laws or tax laws with respect to the previous unlawful employment of the applicant.

Nothing in this section could be used to shield the employer from other violations of labor or employment laws.

Section 606. Enumeration of Social Security Number. S.A. 1150 would direct DHS, in coordination with the SSA, to implement a system to provide Social Security numbers to individuals granted status or probationary benefits under Title VI.

Section 607. Preclusion of Social Security Credits for Years Prior to Enumeration. S.A. 1150 would prevent individuals who are assigned Social Security numbers after 2007 from receiving credit for quarters earned prior to 2007.

Section 608. Payment of Penalties and Use of Penalties Collected. S.A. 1150 would direct DHS to establish a plan for applicants paying fines under sections 601 or 602 of this Act to pay 80 percent of the fines under an installment program.

Section 609. Limitations on Eligibility. Between the enactment of this Act and the time that the application period commences, S.A. 1150 would prevent an applicant for status under Title VI from being rendered ineligible for an immigration benefit solely on the basis of the applicant having violated sections of the criminal code for using false documents or making false statements on applications.

Section 610. Rulemaking. S.A. 1150 would direct DHS to issue an interim rule within six months of enactment, effective immediately, to implement this title. The rule would sunset within two years after issuance.

Section 611. Authorization of Appropriations. S.A. 1150 would authorize appropriation of such sums necessary to carry out this title and establish a sense of Congress that the funds be authorized to facilitate orderly and timely processing of applications under Title VI.

Subtitle B -- DREAM Act

Section 613. Definitions. S.A. 1150 defines “institution of higher education” and “uniformed services” for purposes of the DREAM Act.

Section 614. Adjustment of Status of Certain Long-Term Residents Who Entered the United States As Children. S.A. 1150 would direct the DHS Secretary, three years after the date of enactment, to adjust to Legal Permanent Resident status an alien who is eligible for, or has been issued a probationary, a Z visa if the alien:

· Has been physically present in the U.S. since January 1, 2007;

· Was under the age of 30 on the date of enactment;

· Was under the age of 16 at time of initial entry to the U.S.;

· Has graduated from high school or obtained a GED in the U.S.;

· Has not abandoned his or her residence in the U.S.;

· Has acquired a degree from, or attended two years at, at an institution of higher education or is serving in, or has been honorably discharged from, the armed forces;

· Has provided a list of all of the secondary educational institutions he or she has attended in the U.S.; or

· Is in compliance with the eligibility and admissibility criteria for Z visa holders.

Nothing in the DREAM Act would apply a numerical limitation on the number of aliens who may be eligible for adjustment of status.

Section 615. Expedited Processing of Applications; Prohibition on Fees.

S.A. 1150 would prohibit regulations promulgated under this subtitle from requiring an additional fee from Z non-immigrant applying for benefits under the Dream Act.

Section 616. Higher Education Assistance. S.A. 1150 would exempt probationary Z or Z visa holders from the federal ban states providing undocumented immigrants in-state tuition.

Further, probationary Z or Z visa holders who satisfy certain DREAM Act criteria would be eligible for federal student loans, federal work-study and certain other federal assistance.

Section 617. Delay of Fines and Fees. S.A. 1150 would prohibit levying penalties and fees against an alien who satisfies certain DREAM Act criteria, including graduation from high school or obtaining a GED, until six years and six months after the date of enactment or the alien reaches the age of 24, whichever is later. If the alien satisfies all DREAM Act criteria within this time period, the penalties would be waived; if not, the alien would be required to pay the required penalties and fees within 90 days.

With respect to an alien who satisfies certain DREAM Act criteria but has not graduated from high school or obtained a GED, penalties and fees would be refunded if the alien later meets all DREAM Act criteria.

Section 618. GAO Report. S.A. 1150 would direct the GAO to submit a report to the House and Senate Judiciary Committees on the number of aliens who were eligible for, applied for, and were granted adjustment of status under the DREAM Act.

Section 619. Regulations, Effective Date, Authorization of Appropriations.

S.A. 1150 would direct the DHS Secretary to issue regulations to implement the DREAM Act no later than six months after the date of enactment. The DREAM Act would take effect on the date these regulations are issued.

Section 620. Correction of Social Security Records. S.A. 1150 would require the correction of Social Security records reflecting employment of aliens prior to their adjustment to Z-A card status.

Subtitle C -- Agricultural Workers (AgJOBS)

Section 622. Admission of Agricultural Workers. S.A. 1150 would establish a program in which aliens, who demonstrate at least 863 hours or 150 agricultural work days during the 24-month period ending on December 31, 2006, have an opportunity to adjust their status to that of an alien in “Z-A” status.

Z-A aliens would get priority adjustment for a green card (after the backlog is cleared) if they can prove that they:

(a) performed at least five years of agricultural employment for at least 100 work days per year during the five-year period beginning on the date of enactment;

(b) performed at least three years of agricultural employment for at least 150 work days per year during the three-year period beginning on the date of enactment; or

(c) during the four-year period beginning on the date of enactment, worked at least 150 work days during three years and 100 work days during the remaining year.

In addition to the work requirement, Z-A aliens must pay their back taxes, learn English, and pay fines totaling $500.

Aliens who commit fraud or willful misrepresentation on applications for adjustment, or who have committed an act which makes them inadmissible under the INA, or who have committed a felony or three misdemeanors, or who are convicted of an offense which involves bodily injury, a threat of bodily injury or harm to property in excess of $500 would be denied adjustment to lawful permanent resident status.

Section 623. Agricultural Worker Immigration Status Adjustment Account. S.A. 1150 would direct the DHS Secretary to set a schedule of fees to be charged persons applying for Z-A status and permanent resident status. The fees could be used to pay DHS’s costs incurred to process these applications.

Section 624. Regulations, Effective Date and Funding. S.A. 1150 would direct that regulations for the program be promulgated no later than seven months after the date of enactment.

This section would take effect on the date the regulations are issued on an interim or other basis.

The amendment would also authorize the funding necessary to implement AgJOBS.

Section 625. Correction of Social Security Records. S.A. 1150 would require the correction of Social Security records reflecting employment of aliens prior to their adjustment to Z-A card status.

TITLE VII -- Miscellaneous

Section 701. Waiver of Fingerprint Requirements for Armed Forces Members. S.A. 1150 would permit fingerprints collected by the Department of Defense to be used for naturalization purposes as long as they are taken no more that 12 months before an application for naturalization.

Section 702. Declaration of English. S.A. 1150 would also direct the federal government to preserve and enhance the role of English as the common language.

That being said, S.A. 1150 would neither expand nor diminish rights relative to services or materials provided by the U.S. government in any language other than English.

Section 703. Pilot Project Regarding Immigration Practitioner Complaints. S.A. 1150 would direct DHS to create a three year pilot project to encourage reporting on, and raise public awareness about, fraud. Upon completion, DHS would report to Congress.

Subtitle B -- Assimilation and Naturalization

Section 711. The Office of Citizenship and Integration. S.A. 1150 would change the name of the Office of Citizenship to the “Office of Citizenship and Integration” and highlight its civic integration functions.

Section 712. Special Provisions for Elderly Immigrants. S.A. 1150 would waive the English proficiency requirement for naturalization for persons over 75 as long as the person agrees to take the naturalization oath in his/her native language or in English.

Section 713. Funding for the Office of Citizenship and Integration. S.A. 1150 would authorize $100 million to be appropriated for the Office of Citizenship and Integration.

Section 714. Citizenship and Integration Councils. S.A. 1150 would direct the Office of Citizenship and Immigrant Integration to provide states and municipalities grants to create New Americans Integrations Councils. These councils would use the grants to issue reports, conduct needs’ assessments, hold public hearings, issue reports and develop a comprehensive plan to integrate new immigrants, lawful permanent residents, Z non-immigrants, and citizens into states and municipalities. The councils will consist of 10-15 representatives from state and local government; business; faith-based organizations; civic organizations; philanthropic leaders; and nonprofit organizations with experience working with immigrant communities. The GAO, in coordination with the Office of Citizenship and Immigrant Integration, would conduct an annual evaluation of the grant program conducted under this section. The amendment would also authorize appropriations for the Office of Citizenship and Immigrant Integration.

Section 715. History and Government Test. S.A. 1150 would require that the naturalization history and government test will test an applicant’s understanding of the naturalization oath.

Section 716. English Language Learning. S.A. 1150 would direct the Education Secretary to develop a computer-based electronic English language instruction program to assist non-native English speakers to sufficient proficiency to pass the Test of English as a Foreign Language and beyond. The program would be made available to the public for free and would ensure that it is readily accessible to public libraries throughout the United States. The program would be made fully accessible to speakers of the top five foreign languages spoken inside the United States. Further, appropriations would be authorized.

Section 717. GAO Study on the Appellate Process for Immigration Appeals.

S.A. 1150 would direct GAO to study the possibility of consolidating all appeals from the Board of Immigration Appeals and habeas petitions into one United States Court of Appeals by:

(1) putting all appeals into an existing circuit court;

(2) consolidating all appeals into a centralized appellate court using judges who rotate from various circuits; or

(3) setting up a panel of judges who have the authority to reassign cases from circuits with heavy caseloads to other circuit courts.

Factors to consider would include resources, impact on the circuits, case management techniques, the effect on adjudication, effect on litigants, and other potential reforms.

Legislative History

On May 25, 2006, in the 109^th Congress, the Senate passed S. 2611, the Comprehensive Immigration Reform Act of 2006, on a 62-36 vote. Differences were not, however, worked out with the House of Representatives and the bill did not receive a vote in the House.

Early in the 110^th Congress, a bipartisan group of Senators and the White House began negotiations on a compromise approach to comprehensive immigration reform. Majority Leader Reid scheduled debate on comprehensive immigration reform for the last two weeks in May.

On May 9, 2007, Majority Leader Reid introduced S. 1348, the Comprehensive Immigration Reform Act of 2007, under Senate Rule 14 as a placeholder until the negotiations were completed and a bipartisan substitute amendment was filed. The text of S. 1348 is nearly identical to S. 2611 (the legislation passed in the 109^th Congress). On May 17, an agreement was reached between the bipartisan group of Senators.

On May 21, the Senate invoked cloture on the motion to proceed to S. 1348, on a 69-23 vote, and agreed by unanimous consent to begin consideration of the measure. That same day, Senator Reid for Senators Kennedy and Specter filed S.A. 1150 (the Secure Borders, Economic Opportunity, and Immigration Reform Act of 2007) as a substitute amendment to S. 1348.

On May 22, the Senate began consideration of the measure and amendments (see below). After the May recess, on June 4, the Senate resumed consideration of the legislation. On June 5, Senator Reid invoked cloture motions on S.A. 1150 and S. 1348.

Amendments

As of this writing more than 160 amendments have been filled or offered to the legislation.

Amendments Agreed To:

S.A. 1146 (Senator Feinstein) -- The Unaccompanied Alien Child Protection Act of 2007 would address the care and custody of unaccompanied alien children under the age of 18 with no lawful immigration status and no parent or legal guardian in the United States who is available to provide for their care and physical custody. Agreed to by voice vote on May 23.

S.A. 1163 (Senator Alexander) -- The amendment would establish an award to recognize companies for extraordinary efforts to promote English literacy and civics. Agreed to by unanimous consent on June 4.

S.A. 1165, as modified (Senator Leahy) -- The amendment would clarify rules as they relate to dairy workers. Agreed to by unanimous consent on May 23.

S.A. 1165, as modified (Senator Grassley) -- The amendment would clarify that the revocation of an alien’s visa, or other documentation, is not subject to judicial review. Agreed to by unanimous consent on June 4.

S.A. 1167 (Senator Cantwell) -- The amendment would empower the Attorney General to implement the Northern Border Protection Initiative and provide funds for northern border States to reimburse country and municipal governments for costs associated with certain criminal activities. Agreed to by unanimous consent on June 4.

S.A. 1168 (Senator Hutchinson) -- The amendment would provide local officials and the DHS Secretary greater involvement in decisions regarding the location of border fencing. Agreed to by unanimous consent on May 23.

S.A. 1169 (Senator Bingaman) -- The amendment would reduce the cap on the number of non-immigrants admitted to the U.S. from 400,000 to 200,000. Agreed to on May 23 on a 74-24 vote.

S.A. 1172 (Senator Gregg) -- The amendment would ensure control of our Nation’s borders and strengthen enforcement of our immigration laws. Agreed to by voice vote on May 23.

S.A. 1173 (Senator Graham) -- The amendment would establish for minimum sentences for aliens who re-enter the U.S. after removal. Agreed to by unanimous consent.

S.A. 1176 (Senator Feingold) -- The amendment would establish commissions to review the facts and circumstances surrounding injustices suffered by European Americans, European Latin Americans, and Jewish refugees during World War II. Agreed to on June 5 on a vote of 67-26.

S.A. 1186 (Senator Akaka) -- The amendment would exempt children of certain Filipino World War I veterans from numerical limitation on immigration visas. Agreed to on May 24 on a 87-9 vote.

S.A. 1190, as modified (Senator McCain) -- The amendment would require undocumented immigrants receiving legal status to pay back-taxes owed. Agreed to by unanimous consent on May 24.

S.A. 1223, as modified (Senator Sanders) -- The amendment would establish the American Competitiveness Scholarship Program, which would be funded by imposing a $3,500 surcharge on employers seeking to hire H1-B visa immigrants. Agreed to on May 24 on a 59-35 vote.

S.A. 1231 (Senator Durbin) -- The amendment would eliminate the “labor shortage” waiver so that employers would always be required to recruit American workers before hiring a guest worker. Agreed to on June 5 on a 71-22 vote.

S.A. 1238 (Senator Cornyn) -- The amendment would increase the authorization of appropriations for the Border Relief Grant Program. Agreed to by unanimous consent on June 4.

Amendments Not Agreed To:

S.A. 1153 (Senator Dorgan) -- The amendment would have struck the Y non-immigrant guest worker program. Not agreed to on May 22 on a 31-64 vote.

S.A. 1157 (Senator Vitter) -- The amendment would have struck title VI, the legalization section. Not agreed to on May 24 on a 29-66 vote.

S.A. 1158 (Senator Coleman) -- The amendment would have required information on an individual’s immigration status to be shared between federal and local law enforcement officials. Not agreed to on May 24 on a 48-49 vote.

S.A. 1170 (Senator McConnell) -- The amendment would have required voters to present a photo id. Under agreement, the amendment was withdrawn on June 5 after failing to receive 60 votes.

S.A. 1181 (Senator Dorgan) -- The amendment would have required the Y-1 non-immigrant visa program to sunset after five years. Not agreed to on May 24 on a 48-49 vote.

S.A. 1189 (Senator Allard) -- The amendment would have eliminated the supplemental schedule for Z visas in the new merit-based point system. Not agreed to on June 5 on a 31-62 vote.

Amendments pending as of this writing:

S.A. 1183 (Senator Clinton) -- The amendment would reclassify the spouses and minor children of lawful permanent residents as immediate relatives. Introduced on May 25.

S.A. 1184 (Senator Cornyn) -- The amendment would expand the definition of aggravated felonies and apply the definition retroactively. The amendment would also allow for the use of classified evidence. Introduced on May 23.

S.A. 1191 (Senator Lieberman) -- The amendment would provide safeguards against faulty asylum procedures and to improve conditions of detention. Introduced on May 24.

S.A. 1194 (Senator Menendez) -- The amendment would modify the deadline for the family backlog reduction from May 1, 2005 to January 1, 2007. Introduced on May 24.

S.A. 1197 (Senator DeMint) -- The amendment would add a requirement that Z non-immigrants visa holders participate in high deductible health plans or Health Savings Accounts. Introduced on June 5.

S.A. 1199 (Senator Dodd) -- The amendment would increase the number of green cards for parents of U.S. citizens, extend the duration of the new parent visitor visa, and restrict penalties imposed on beneficiaries who overstay visitor visas to the beneficiary. Introduced on May 24.

S.A. 1202 (Senator Obama) -- The amendment would provide an end-date for the merit-based point system. Introduced on May 25.

S.A. 1234 (Senator Sessions) -- The amendment would prevent Y visa workers from claiming the Earned Income Tax Credit. Introduced on May 24.

S.A. 1235 (Senator Sessions) -- The amendment would also prevent Y visa workers from claiming the Earned Income Tax Credit. The amendment is, however, more expansive than 1234. Introduced on May 24.

S.A. 1250 (Senator Cornyn) -- The amendment would require certain information on undocumented immigrants seeking Z visa’s to be disclosed to law enforcement. Introduced on May 25.

S.A. 1267 (Senator Bingaman) -- The amendment would strike the requirement that Y-1 non-immigrant visa holders leave the U.S. before they are able to renew their visa. Introduced on June 5.

S.A. 1333 (Senator Kennedy) -- The amendment would increase the immigration-related penalties associated with various criminal activity, including gang-related offenses and failing to register as a sex offender. Introduced on June 6, and will be considered along-side S.A. 1184.

Statement of Administration Policy

On May 23, 2007, the Administration issued a strong statement of support for S. 1348. The Administration was also a key participant in the negotiations that produced S.A. 1150.