Union Calendar No. 31
118th CONGRESS 1st Session |
[Report No. 118–47, Part I]
To provide for reform of the asylum system and protection of the border.
April 17, 2023
Mr. McClintock (for himself and Mr. Biggs) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committees on Ways and Means, Education and the Workforce, and Homeland Security, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
May 5, 2023
Additional sponsor: Mrs. Lesko
May 5, 2023
Reported from the Committee on the Judiciary with an amendment
[Strike out all after the enacting clause and insert the part printed in italic]
May 5, 2023
Committees on Ways and Means, Education and the Workforce, and Homeland Security discharged; committed to the Committee of the Whole House on the State of the Union and ordered to be printed
[For text of introduced bill, see copy of bill as introduced on April 17, 2023]
To provide for reform of the asylum system and protection of the border.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
(b) Table of contents.—The table of contents for this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 101. Short title.
Sec. 102. Safe third country.
Sec. 103. Credible fear interviews.
Sec. 104. Clarification of asylum eligibility.
Sec. 105. Exceptions.
Sec. 106. Employment authorization.
Sec. 107. Asylum fees.
Sec. 108. Rules for determining asylum eligibility.
Sec. 109. Firm resettlement.
Sec. 110. Notice concerning frivolous asylum applications.
Sec. 111. Technical amendments.
Sec. 112. Requirement for procedures relating to certain asylum applications.
Sec. 201. Short title.
Sec. 202. Inspection of applicants for admission.
Sec. 203. Operational detention facilities.
Sec. 301. Short title.
Sec. 302. Clarification of standards for family detention.
Sec. 401. Short title.
Sec. 402. Findings.
Sec. 403. Repatriation of unaccompanied alien children.
Sec. 404. Special immigrant juvenile status for immigrants unable to reunite with either parent.
Sec. 405. Rule of construction.
Sec. 501. Short title.
Sec. 502. Expanded penalties for illegal entry or presence.
Sec. 601. Short title.
Sec. 602. Immigration parole reform.
Sec. 603. Implementation.
Sec. 604. Cause of action.
Sec. 605. Severability.
Sec. 701. Short title.
Sec. 702. Employment eligibility verification process.
Sec. 703. Employment eligibility verification system.
Sec. 704. Recruitment, referral, and continuation of employment.
Sec. 705. Good faith defense.
Sec. 706. Preemption and States’ rights.
Sec. 707. Repeal.
Sec. 708. Penalties.
Sec. 709. Fraud and misuse of documents.
Sec. 710. Protection of Social Security Administration programs.
Sec. 711. Fraud prevention.
Sec. 712. Use of employment eligibility verification photo tool.
Sec. 713. Identity authentication employment eligibility verification pilot programs.
Sec. 714. Inspector General audits.
Sec. 715. Agriculture Workforce Study.
Sec. 716. Repealing regulations.
This title may be cited as the “Asylum Reform and Border Protection Act of 2023”.
Section 208(a)(2)(A) of the Immigration and Nationality Act (8 U.S.C. 1158(a)(2)(A)) is amended—
(1) by striking “if the Attorney General determines” and inserting “if the Attorney General or the Secretary of Homeland Security determines—”;
(6) by adding at the end the following:
“(ii) that the alien entered, attempted to enter, or arrived in the United States after transiting through at least one country outside the alien’s country of citizenship, nationality, or last lawful habitual residence en route to the United States, unless—
“(I) the alien demonstrates that he or she applied for protection from persecution or torture in at least one country outside the alien’s country of citizenship, nationality, or last lawful habitual residence through which the alien transited en route to the United States, and the alien received a final judgment denying the alien protection in each country;
“(II) the alien demonstrates that he or she was a victim of a severe form of trafficking in which a commercial sex act was induced by force, fraud, or coercion, or in which the person induced to perform such act was under the age of 18 years; or in which the trafficking included the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery, and was unable to apply for protection from persecution in each country through which the alien transited en route to the United States as a result of such severe form of trafficking; or
“(III) the only countries through which the alien transited en route to the United States were, at the time of the transit, not parties to the 1951 United Nations Convention relating to the Status of Refugees, the 1967 Protocol Relating to the Status of Refugees, or the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.”.
Section 235(b)(1)(B)(v) of the Immigration and Nationality Act (8 U.S.C. 1225(b)(1)(B)(v)) is amended by striking “there is a significant possibility” and all that follows, and inserting “, taking into account the credibility of the statements made by the alien in support of the alien’s claim, as determined pursuant to section 208(b)(1)(B)(iii), and such other facts as are known to the officer, the alien more likely than not could establish eligibility for asylum under section 208, and it is more likely than not that the statements made by, and on behalf of, the alien in support of the alien’s claim are true.”.
(a) In general.—Section 208(b)(1)(A) of the Immigration and Nationality Act (8 U.S.C. 1158(b)(1)(A)) is amended by inserting after “section 101(a)(42)(A)” the following: “(in accordance with the rules set forth in this section), and is eligible to apply for asylum under subsection (a)”.
(b) Place of arrival.—Section 208(a)(1) of the Immigration and Nationality Act (8 U.S.C. 1158(a)(1)) is amended—
Paragraph (2) of section 208(b) of the Immigration and Nationality Act (8 U.S.C. 1158(b)(2)) is amended to read as follows:
“(2) EXCEPTIONS.—
“(A) IN GENERAL.—Paragraph (1) shall not apply to an alien if the Secretary of Homeland Security or the Attorney General determines that—
“(i) the alien ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion;
“(iii) the alien has been convicted of any misdemeanor offense under Federal, State, tribal, or local law involving—
“(I) the unlawful possession or use of an identification document, authentication feature, or false identification document (as those terms and phrases are defined in the jurisdiction where the conviction occurred), unless the alien can establish that the conviction resulted from circumstances showing that—
“(II) the unlawful receipt of a Federal public benefit (as defined in section 401(c) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1611(c))), from a Federal entity, or the unlawful receipt of similar public benefits from a State, tribal, or local entity; or
“(III) possession or trafficking of a controlled substance or controlled substance paraphernalia, as those phrases are defined under the law of the jurisdiction where the conviction occurred, other than a single offense involving possession for one’s own use of 30 grams or less of marijuana (as marijuana is defined under the law of the jurisdiction where the conviction occurred);
“(iv) the alien has been convicted of an offense arising under paragraph (1)(A) or (2) of section 274(a), or under section 276;
“(v) the alien has been convicted of a Federal, State, tribal, or local crime that the Attorney General or Secretary of Homeland Security knows, or has reason to believe, was committed in support, promotion, or furtherance of the activity of a criminal street gang (as defined under the law of the jurisdiction where the conviction occurred or in section 521(a) of title 18, United States Code);
“(vi) the alien has been convicted of an offense for driving while intoxicated or impaired, as those terms are defined under the law of the jurisdiction where the conviction occurred (including a conviction for driving while under the influence of or impaired by alcohol or drugs), without regard to whether the conviction is classified as a misdemeanor or felony under Federal, State, tribal, or local law, in which such intoxicated or impaired driving was a cause of serious bodily injury or death of another person;
“(vii) the alien has been convicted of more than one offense for driving while intoxicated or impaired, as those terms are defined under the law of the jurisdiction where the conviction occurred (including a conviction for driving while under the influence of or impaired by alcohol or drugs), without regard to whether the conviction is classified as a misdemeanor or felony under Federal, State, tribal, or local law;
“(viii) the alien has been convicted of a crime—
“(III) that involves conduct amounting to a domestic assault or battery offense, including—
“(aa) a misdemeanor crime of domestic violence, as described in section 921(a)(33) of title 18, United States Code;
“(bb) a crime of domestic violence, as described in section 40002(a)(12) of the Violence Against Women Act of 1994 (34 U.S.C. 12291(a)(12)); or
“(cc) any crime based on conduct in which the alien harassed, coerced, intimidated, voluntarily or recklessly used (or threatened to use) force or violence against, or inflicted physical injury or physical pain, however slight, upon a person—
“(AA) who is a current or former spouse of the alien;
“(BB) with whom the alien shares a child;
“(CC) who is cohabitating with, or who has cohabitated with, the alien as a spouse;
“(DD) who is similarly situated to a spouse of the alien under the domestic or family violence laws of the jurisdiction where the offense occurred; or
“(EE) who is protected from that alien’s acts under the domestic or family violence laws of the United States or of any State, tribal government, or unit of local government;
“(ix) the alien has engaged in acts of battery or extreme cruelty upon a person and the person—
“(x) the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States;
“(xi) there are serious reasons for believing that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States;
“(xii) there are reasonable grounds for regarding the alien as a danger to the security of the United States;
“(xiii) the alien is described in subclause (I), (II), (III), (IV), or (VI) of section 212(a)(3)(B)(i) or section 237(a)(4)(B) (relating to terrorist activity), unless, in the case only of an alien inadmissible under subclause (IV) of section 212(a)(3)(B)(i), the Secretary of Homeland Security or the Attorney General determines, in the Secretary’s or the Attorney General's discretion, that there are not reasonable grounds for regarding the alien as a danger to the security of the United States;
“(B) SPECIAL RULES.—
“(i) PARTICULARLY SERIOUS CRIME; SERIOUS NONPOLITICAL CRIME OUTSIDE THE UNITED STATES.—
“(I) IN GENERAL.—For purposes of subparagraph (A)(x), the Attorney General or Secretary of Homeland Security, in their discretion, may determine that a conviction constitutes a particularly serious crime based on—
“(II) DETERMINATION.—In making a determination under subclause (I), the Attorney General or Secretary of Homeland Security may consider all reliable information and is not limited to facts found by the criminal court or provided in the underlying record of conviction.
“(ii) CRIMES AND EXCEPTIONS.—
“(I) DRIVING WHILE INTOXICATED OR IMPAIRED.—A finding under subparagraph (A)(vi) does not require the Attorney General or Secretary of Homeland Security to find the first conviction for driving while intoxicated or impaired (including a conviction for driving while under the influence of or impaired by alcohol or drugs) as a predicate offense. The Attorney General or Secretary of Homeland Security need only make a factual determination that the alien previously was convicted for driving while intoxicated or impaired as those terms are defined under the jurisdiction where the conviction occurred (including a conviction for driving while under the influence of or impaired by alcohol or drugs).
“(II) STALKING AND OTHER CRIMES.—In making a determination under subparagraph (A)(viii), including determining the existence of a domestic relationship between the alien and the victim, the underlying conduct of the crime may be considered, and the Attorney General or Secretary of Homeland Security is not limited to facts found by the criminal court or provided in the underlying record of conviction.
“(III) BATTERY OR EXTREME CRUELTY.—In making a determination under subparagraph (A)(ix), the phrase ‘battery or extreme cruelty’ includes—
“(aa) any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury;
“(C) SPECIFIC CIRCUMSTANCES.—Paragraph (1) shall not apply to an alien whose claim is based on—
“(i) personal animus or retribution, including personal animus in which the alleged persecutor has not targeted, or manifested an animus against, other members of an alleged particular social group in addition to the member who has raised the claim at issue;
“(ii) the applicant’s generalized disapproval of, disagreement with, or opposition to criminal, terrorist, gang, guerilla, or other non-state organizations absent expressive behavior in furtherance of a discrete cause against such organizations related to control of a State or expressive behavior that is antithetical to the State or a legal unit of the State;
“(iii) the applicant’s resistance to recruitment or coercion by guerrilla, criminal, gang, terrorist, or other non-state organizations;
“(D) DEFINITIONS AND CLARIFICATIONS.—
“(i) DEFINITIONS.—For purposes of this paragraph:
“(ii) CLARIFICATIONS.—
“(I) CONSTRUCTION.—For purposes of this paragraph, whether any activity or conviction also may constitute a basis for removal is immaterial to a determination of asylum eligibility.
“(II) ATTEMPT, CONSPIRACY, OR SOLICITATION.—For purposes of this paragraph, all references to a criminal offense or criminal conviction shall be deemed to include any attempt, conspiracy, or solicitation to commit the offense or any other inchoate form of the offense.
“(III) EFFECT OF CERTAIN ORDERS.—
“(aa) IN GENERAL.—No order vacating a conviction, modifying a sentence, clarifying a sentence, or otherwise altering a conviction or sentence shall have any effect under this paragraph unless the Attorney General or Secretary of Homeland Security determines that—
“(AA) the court issuing the order had jurisdiction and authority to do so; and
“(BB) the order was not entered for rehabilitative purposes or for purposes of ameliorating the immigration consequences of the conviction or sentence.
“(bb) AMELIORATING IMMIGRATION CONSEQUENCES.—For purposes of item (aa)(BB), the order shall be presumed to be for the purpose of ameliorating immigration consequences if—
“(AA) the order was entered after the initiation of any proceeding to remove the alien from the United States; or
“(BB) the alien moved for the order more than one year after the date of the original order of conviction or sentencing, whichever is later.
“(cc) AUTHORITY OF IMMIGRATION JUDGE.—An immigration judge is not limited to consideration only of material included in any order vacating a conviction, modifying a sentence, or clarifying a sentence to determine whether such order should be given any effect under this paragraph, but may consider such additional information as the immigration judge determines appropriate.
Paragraph (2) of section 208(d) of the Immigration and Nationality Act (8 U.S.C. 1158(d)) is amended to read as follows:
“(2) EMPLOYMENT AUTHORIZATION.—
“(A) AUTHORIZATION PERMITTED.—An applicant for asylum is not entitled to employment authorization, but such authorization may be provided under regulation by the Secretary of Homeland Security. An applicant who is not otherwise eligible for employment authorization shall not be granted such authorization prior to the date that is 180 days after the date of filing of the application for asylum.
“(B) TERMINATION.—Each grant of employment authorization under subparagraph (A), and any renewal or extension thereof, shall be valid for a period of 6 months, except that such authorization, renewal, or extension shall terminate prior to the end of such 6 month period as follows:
“(i) Immediately following the denial of an asylum application by an asylum officer, unless the case is referred to an immigration judge.
“(C) RENEWAL.—The Secretary of Homeland Security may not grant, renew, or extend employment authorization to an alien if the alien was previously granted employment authorization under subparagraph (A), and the employment authorization was terminated pursuant to a circumstance described in subparagraph (B)(i), (ii), or (iii), unless a Federal court of appeals remands the alien’s case to the Board of Immigration Appeals.
Paragraph (3) of section 208(d) of the Immigration and Nationality Act (8 U.S.C. 1158(d)) is amended to read as follows:
“(3) FEES.—
“(A) APPLICATION FEE.—A fee of not less than $50 for each application for asylum shall be imposed. Such fee shall not exceed the cost of adjudicating the application. Such fee shall not apply to an unaccompanied alien child who files an asylum application in proceedings under section 240.
“(B) EMPLOYMENT AUTHORIZATION.—A fee may also be imposed for the consideration of an application for employment authorization under this section and for adjustment of status under section 209(b). Such a fee shall not exceed the cost of adjudicating the application.
Section 208 of the Immigration and Nationality Act (8 U.S.C. 1158) is amended by adding at the end the following:
“(f) Rules for determining asylum eligibility.—In making a determination under subsection (b)(1)(A) with respect to whether an alien is a refugee within the meaning of section 101(a)(42)(A), the following shall apply:
“(1) PARTICULAR SOCIAL GROUP.—The Secretary of Homeland Security or the Attorney General shall not determine that an alien is a member of a particular social group unless the alien articulates on the record, or provides a basis on the record for determining, the definition and boundaries of the alleged particular social group, establishes that the particular social group exists independently from the alleged persecution, and establishes that the alien’s claim of membership in a particular social group does not involve—
“(D) the targeting of the applicant for criminal activity for financial gain based on perceptions of wealth or affluence;
“(E) interpersonal disputes of which governmental authorities in the relevant society or region were unaware or uninvolved;
“(2) POLITICAL OPINION.—The Secretary of Homeland Security or the Attorney General may not determine that an alien holds a political opinion with respect to which the alien is subject to persecution if the political opinion is constituted solely by generalized disapproval of, disagreement with, or opposition to criminal, terrorist, gang, guerilla, or other non-state organizations and does not include expressive behavior in furtherance of a cause against such organizations related to efforts by the State to control such organizations or behavior that is antithetical to or otherwise opposes the ruling legal entity of the State or a unit thereof.
“(3) PERSECUTION.—The Secretary of Homeland Security or the Attorney General may not determine that an alien has been subject to persecution or has a well-founded fear of persecution based only on—
“(4) DISCRETIONARY DETERMINATION.—
“(A) ADVERSE DISCRETIONARY FACTORS.—The Secretary of Homeland Security or the Attorney General may only grant asylum to an alien if the alien establishes that he or she warrants a favorable exercise of discretion. In making such a determination, the Attorney General or Secretary of Homeland Security shall consider, if applicable, an alien’s use of fraudulent documents to enter the United States, unless the alien arrived in the United States by air, sea, or land directly from the applicant’s home country without transiting through any other country.
“(B) FAVORABLE EXERCISE OF DISCRETION NOT PERMITTED.—Except as provided in subparagraph (C), the Attorney General or Secretary of Homeland Security shall not favorably exercise discretion under this section for any alien who—
“(i) has accrued more than one year of unlawful presence in the United States, as defined in sections 212(a)(9)(B)(ii) and (iii), prior to filing an application for asylum;
“(ii) at the time the asylum application is filed with the immigration court or is referred from the Department of Homeland Security, has—
“(I) failed to timely file (or timely file a request for an extension of time to file) any required Federal, State, or local income tax returns;
“(III) income that would result in tax liability under section 1 of the Internal Revenue Code of 1986 and that was not reported to the Internal Revenue Service;
“(iv) has withdrawn a prior asylum application with prejudice or been found to have abandoned a prior asylum application;
“(C) EXCEPTIONS.—If one or more of the adverse discretionary factors set forth in subparagraph (B) are present, the Attorney General or the Secretary, may, notwithstanding such subparagraph (B), favorably exercise discretion under section 208—
“(5) LIMITATION.—If the Secretary or the Attorney General determines that an alien fails to satisfy the requirement under paragraph (1), the alien may not be granted asylum based on membership in a particular social group, and may not appeal the determination of the Secretary or Attorney General, as applicable. A determination under this paragraph shall not serve as the basis for any motion to reopen or reconsider an application for asylum or withholding of removal for any reason, including a claim of ineffective assistance of counsel, unless the alien complies with the procedural requirements for such a motion and demonstrates that counsel’s failure to define, or provide a basis for defining, a formulation of a particular social group was both not a strategic choice and constituted egregious conduct.
“(6) STEREOTYPES.—Evidence offered in support of an application for asylum that promotes cultural stereotypes about a country, its inhabitants, or an alleged persecutor, including stereotypes based on race, religion, nationality, or gender, shall not be admissible in adjudicating that application, except that evidence that an alleged persecutor holds stereotypical views of the applicant shall be admissible.
“(7) DEFINITIONS.—In this section:
“(B) The term ‘political opinion’ means an ideal or conviction in support of the furtherance of a discrete cause related to political control of a state or a unit thereof.
“(C) The term ‘persecution’ means the infliction of a severe level of harm constituting an exigent threat by the government of a country or by persons or an organization that the government was unable or unwilling to control. Such term does not include—
“(i) generalized harm or violence that arises out of civil, criminal, or military strife in a country;
“(ii) all treatment that the United States regards as unfair, offensive, unjust, unlawful, or unconstitutional;
Section 208 of the Immigration and Nationality Act (8 U.S.C. 1158), as amended by this Act, is further amended by adding at the end the following:
“(g) Firm resettlement.—In determining whether an alien was firmly resettled in another country prior to arriving in the United States under subsection (b)(2)(A)(xiv), the following shall apply:
“(1) IN GENERAL.—An alien shall be considered to have firmly resettled in another country if, after the events giving rise to the alien’s asylum claim—
“(A) the alien resided in a country through which the alien transited prior to arriving in or entering the United States and—
“(B) the alien physically resided voluntarily, and without continuing to suffer persecution or torture, in any one country for one year or more after departing his country of nationality or last habitual residence and prior to arrival in or entry into the United States, except for any time spent in Mexico by an alien who is not a native or citizen of Mexico solely as a direct result of being returned to Mexico pursuant to section 235(b)(3) or of being subject to metering; or
“(C) the alien is a citizen of a country other than the country in which the alien alleges a fear of persecution, or was a citizen of such a country in the case of an alien who renounces such citizenship, and the alien was present in that country after departing his country of nationality or last habitual residence and prior to arrival in or entry into the United States;
“(2) BURDEN OF PROOF.—If an immigration judge determines that an alien has firmly resettled in another country under paragraph (1), the alien shall bear the burden of proving the bar does not apply.
“(3) FIRM RESETTLEMENT OF PARENT.—An alien shall be presumed to have been firmly resettled in another country if the alien’s parent was firmly resettled in another country, the parent’s resettlement occurred before the alien turned 18 years of age, and the alien resided with such parent at the time of the firm resettlement, unless the alien establishes that he or she could not have derived any permanent legal immigration status or any non-permanent but indefinitely renewable legal immigration status (including asylum, refugee, or similar status, but excluding status of a tourist) from the alien’s parent.”.
(a) In general.—Section 208(d)(4) of the Immigration and Nationality Act (8 U.S.C. 1158(d)(4)) is amended—
(1) in the matter preceding subparagraph (A), by inserting “the Secretary of Homeland Security or” before “the Attorney General”;
(b) Conforming amendment.—Section 208(d)(6) of the Immigration and Nationality Act (8 U.S.C. 1158(d)(6)) is amended by striking “If the” and all that follows and inserting:
“(A) IN GENERAL.—If the Secretary of Homeland Security or the Attorney General determines that an alien has knowingly made a frivolous application for asylum and the alien has received the notice under paragraph (4)(C), the alien shall be permanently ineligible for any benefits under this chapter, effective as the date of the final determination of such an application.
“(B) CRITERIA.—An application is frivolous if the Secretary of Homeland Security or the Attorney General determines, consistent with subparagraph (C), that—
“(i) it is so insufficient in substance that it is clear that the applicant knowingly filed the application solely or in part to delay removal from the United States, to seek employment authorization as an applicant for asylum pursuant to regulations issued pursuant to paragraph (2), or to seek issuance of a Notice to Appear in order to pursue Cancellation of Removal under section 240A(b); or
“(C) SUFFICIENT OPPORTUNITY TO CLARIFY.—In determining that an application is frivolous, the Secretary or the Attorney General, must be satisfied that the applicant, during the course of the proceedings, has had sufficient opportunity to clarify any discrepancies or implausible aspects of the claim.
Section 208 of the Immigration and Nationality Act (8 U.S.C. 1158) is amended—
(1) in subsection (a)—
(2) in subsection (c)—
(A) in paragraph (1), by striking “Attorney General” each place such term appears and inserting “Secretary of Homeland Security”;
(a) In general.—Not later than 30 days after the date of the enactment of this Act, the Attorney General shall establish procedures to expedite the adjudication of asylum applications for aliens—
(1) who are subject to removal proceedings under section 240 of the Immigration and Nationality Act (8 U.S.C. 1229a); and
(b) Western Hemisphere country sanctioned by the United States described.—Subsection (a) shall apply only to an asylum application filed by an alien who is a national of a Western Hemisphere country subject to sanctions pursuant to—
(1) the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996 (22 U.S.C. 6021 note);
(2) the Reinforcing Nicaragua's Adherence to Conditions for Electoral Reform Act of 2021 or the RENACER Act (50 U.S.C. 1701 note); or
Section 235 of the Immigration and Nationality Act (8 U.S.C. 1225) is amended—
(1) in subsection (b)—
(A) in paragraph (1)—
(i) in subparagraph (A)—
(ii) in subparagraph (B)—
(I) in clause (ii), by striking “asylum.” and inserting “asylum and shall not be released (including pursuant to parole or release pursuant to section 236(a) but excluding as expressly authorized pursuant to section 212(d)(5)) other than to be removed or returned to a country as described in paragraph (3).”; and
(B) in paragraph (2)—
(D) by inserting after paragraph (2) the following:
“(3) RETURN TO FOREIGN TERRITORY CONTIGUOUS TO THE UNITED STATES.—
“(A) IN GENERAL.—The Secretary of Homeland Security may return to a foreign territory contiguous to the United States any alien arriving on land from that territory (whether or not at a designated port of entry) pending a proceeding under section 240 or review of a determination under subsection (b)(1)(B)(iii)(III).
“(B) MANDATORY RETURN.—If at any time the Secretary of Homeland Security cannot—
“(i) comply with its obligations to detain an alien as required under clause (ii) and (iii)(IV) of subsection (b)(1)(B) and subsection (b)(2)(A); or
the Secretary of Homeland Security shall, without exception, including pursuant to parole or release pursuant to section 236(a) but excluding as expressly authorized pursuant to section 212(d)(5), return to a foreign territory contiguous to the United States any alien arriving on land from that territory (whether or not at a designated port of entry) pending a proceeding under section 240 or review of a determination under subsection (b)(1)(B)(iii)(III).
“(4) ENFORCEMENT BY STATE ATTORNEYS GENERAL.—The attorney general of a State, or other authorized State officer, alleging a violation of the detention, return, or removal requirements under paragraph (1), (2), or (3) that affects such State or its residents, may bring an action against the Secretary of Homeland Security on behalf of the residents of the State in an appropriate United States district court to obtain appropriate injunctive relief.”; and
(2) by adding at the end the following:
“(e) Authority to prohibit introduction of certain aliens.—If the Secretary of Homeland Security determines, in his discretion, that the prohibition of the introduction of aliens who are inadmissible under subparagraph (A) or (C) of section 212(a)(6) or under section 212(a)(7) at an international land or maritime border of the United States is necessary to achieve operational control (as defined in section 2 of the Secure Fence Act of 2006 (8 U.S.C. 1701 note)) of such border, the Secretary may prohibit, in whole or in part, the introduction of such aliens at such border for such period of time as the Secretary determines is necessary for such purpose.”.
SEC. 203. Operational detention facilities.
(a) In general.—Not later than September 30, 2023, the Secretary of Homeland Security shall take all necessary actions to reopen or restore all U.S. Immigration and Customs Enforcement detention facilities that were in operation on January 20, 2021, that subsequently closed or with respect to which the use was altered, reduced, or discontinued after January 20, 2021. In carrying out the requirement under this subsection, the Secretary may use the authority under section 103(a)(11) of the Immigration and Nationality Act (8 U.S.C. 1103(a)(11)).
(b) Specific facilities.—The requirement under subsection (a) shall include at a minimum, reopening, or restoring, the following facilities:
(c) Exception.—
(1) IN GENERAL.—Except as provided in paragraphs (2) and (3), the Secretary of Homeland Security is authorized to obtain equivalent capacity for detention facilities at locations other than those listed in subsection (b).
(2) LIMITATION.—The Secretary may not take action under paragraph (1) unless the capacity obtained would result in a reduction of time and cost relative to the cost and time otherwise required to obtain such capacity.
(3) SOUTH TEXAS FAMILY RESIDENTIAL CENTER.—The exception under paragraph (1) shall not apply to the South Texas Family Residential Center. The Secretary shall take all necessary steps to modify and operate the South Texas Family Residential Center in the same manner and capability it was operating on January 20, 2021.
(d) Periodic report.—Not later than 90 days after the date of enactment of this Act, and every 90 days thereafter until September 30, 2027, the Secretary of Homeland Security shall submit to the appropriate congressional committees a detailed plan for and a status report on—
(e) Notification.—The Secretary of Homeland Security shall notify Congress, and include with such notification a detailed description of the resources the Department of Homeland Security needs in order to detain all aliens whose detention is mandatory or nondiscretionary under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.)—
(1) not later than 5 days after all U.S. Immigration and Customs Enforcement detention facilities reach 90 percent of capacity;
(a) In general.—Section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232) is amended by adding at the end the following:
“(j) Construction.—
“(1) IN GENERAL.—Notwithstanding any other provision of law, judicial determination, consent decree, or settlement agreement, the detention of any alien child who is not an unaccompanied alien child shall be governed by sections 217, 235, 236, and 241 of the Immigration and Nationality Act (8 U.S.C. 1187, 1225, 1226, and 1231). There is no presumption that an alien child who is not an unaccompanied alien child should not be detained.
“(2) FAMILY DETENTION.—The Secretary of Homeland Security shall—
“(A) maintain the care and custody of an alien, during the period during which the charges described in clause (i) are pending, who—
“(i) is charged only with a misdemeanor offense under section 275(a) of the Immigration and Nationality Act (8 U.S.C. 1325(a)); and
(b) Sense of Congress.—It is the sense of Congress that the amendments in this section to section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232) are intended to satisfy the requirements of the Settlement Agreement in Flores v. Meese, No. 85–4544 (C.D. Cal), as approved by the court on January 28, 1997, with respect to its interpretation in Flores v. Johnson, 212 F. Supp. 3d 864 (C.D. Cal. 2015), that the agreement applies to accompanied minors.
(c) Effective date.—The amendment made by subsection (a) shall take effect on the date of the enactment of this Act and shall apply to all actions that occur before, on, or after the date of the enactment of this Act.
(d) Preemption of State licensing requirements.—Notwithstanding any other provision of law, judicial determination, consent decree, or settlement agreement, no State may require that an immigration detention facility used to detain children who have not attained 18 years of age, or families consisting of one or more of such children and the parents or legal guardians of such children, that is located in that State, be licensed by the State or any political subdivision thereof.
Congress makes the following findings:
(1) Implementation of the provisions of the Trafficking Victims Protection Reauthorization Act of 2008 that govern unaccompanied alien children has incentivized multiple surges of unaccompanied alien children arriving at the southwest border in the years since the bill’s enactment.
(2) The provisions of the Trafficking Victims Protection Reauthorization Act of 2008 that govern unaccompanied alien children treat unaccompanied alien children from countries that are contiguous to the United States disparately by swiftly returning them to their home country absent indications of trafficking or a credible fear of return, but allowing for the release of unaccompanied alien children from noncontiguous countries into the interior of the United States, often to those individuals who paid to smuggle them into the country in the first place.
(3) The provisions of the Trafficking Victims Protection Reauthorization Act of 2008 governing unaccompanied alien children have enriched the cartels, who profit hundreds of millions of dollars each year by smuggling unaccompanied alien children to the southwest border, exploiting and sexually abusing many such unaccompanied alien children on the perilous journey.
(4) Prior to 2008, the number of unaccompanied alien children encountered at the southwest border never exceeded 1,000 in a single year.
(5) The United States is currently in the midst of the worst crisis of unaccompanied alien children in our nation’s history, with over 350,000 such unaccompanied alien children encountered at the southwest border since Joe Biden became President.
(6) In 2022, during the Biden Administration, 152,057 unaccompanied alien children were encountered, the most ever in a single year and an over 400 percent increase compared to the last full fiscal year of the Trump Administration in which 33,239 unaccompanied alien children were encountered.
(7) The Biden Administration has lost contact with at least 85,000 unaccompanied alien children who entered the United States since Joe Biden took office.
(8) The Biden Administration dismantled effective safeguards put in place by the Trump Administration that protected unaccompanied alien children from being abused by criminals or exploited for illegal and dangerous child labor.
(9) A recent New York Times investigation found that unaccompanied alien children are being exploited in the labor market and “are ending up in some of the most punishing jobs in the country.”
(10) The Times investigation found unaccompanied alien children, “under intense pressure to earn money” in order to “send cash back to their families while often being in debt to their sponsors for smuggling fees, rent, and living expenses,” feared “that they had become trapped in circumstances they never could have imagined.”
(11) The Biden Administration’s Department of Health and Human Services Secretary Xavier Becerra compared placing unaccompanied alien children with sponsors, to widgets in an assembly line, stating that, “If Henry Ford had seen this in his plant, he would have never become famous and rich. This is not the way you do an assembly line.”
(12) Department of Health and Human Services employees working under Secretary Xavier Becerra’s leadership penned a July 2021 memorandum expressing serious concern that “labor trafficking was increasing” and that the agency had become “one that rewards individuals for making quick releases, and not one that rewards individuals for preventing unsafe releases.”
(13) Despite this, Secretary Xavier Becerra pressured then-Director of the Office of Refugee Resettlement Cindy Huang to prioritize releases of unaccompanied alien children over ensuring their safety, telling her “if she could not increase the number of discharges he would find someone who could” and then-Director Huang resigned one month later.
(14) In June 2014, the Obama-Biden Administration requested legal authority to exercise discretion in returning and removing unaccompanied alien children from non-contiguous countries back to their home countries.
(15) In August 2014, the House of Representatives passed H.R. 5320, which included the Protection of Children Act.
(16) The Protection of Children Act of 2023 ends the disparate policies of the Trafficking Victims Protection Reauthorization Act of 2008 by ensuring the swift return of all unaccompanied alien children to their country of origin if they are not victims of trafficking and do not have a fear of return.
(a) In general.—Section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (8 U.S.C. 1232) is amended—
(1) in subsection (a)—
(A) in paragraph (2)—
(ii) in subparagraph (A)—
(iii) in subparagraph (B)—
(I) in the matter preceding clause (i), by striking “(8 U.S.C. 1101 et seq.) may—” and inserting “(8 U.S.C. 1101 et seq.)—”;
(2) in subsection (b)—
(A) in paragraph (2)—
(B) in paragraph (3), by striking “an unaccompanied alien child in custody shall” and all that follows, and inserting the following: “an unaccompanied alien child in custody—
“(A) in the case of a child who does not meet the criteria listed in subsection (a)(2)(A), shall transfer the custody of such child to the Secretary of Health and Human Services not later than 30 days after determining that such child is an unaccompanied alien child who does not meet such criteria; or
(3) in subsection (c)—
(A) in paragraph (3), by inserting at the end the following:
“(D) INFORMATION ABOUT INDIVIDUALS WITH WHOM CHILDREN ARE PLACED.—
“(i) INFORMATION TO BE PROVIDED TO HOMELAND SECURITY.—Before placing a child with an individual, the Secretary of Health and Human Services shall provide to the Secretary of Homeland Security, regarding the individual with whom the child will be placed, information on—
“(ii) ACTIVITIES OF THE SECRETARY OF HOMELAND SECURITY.—Not later than 30 days after receiving the information listed in clause (i), the Secretary of Homeland Security, upon determining that an individual with whom a child is placed is unlawfully present in the United States and not in removal proceedings pursuant to chapter 4 of title II of the Immigration and Nationality Act (8 U.S.C. 1221 et seq.), shall initiate such removal proceedings.”; and
Section 101(a)(27)(J) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27)(J)) is amended—
(1) in clause (i), by striking “, and whose reunification with 1 or both of the immigrant's parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law”; and
Nothing in this title shall be construed to limit the following procedures or practices relating to an unaccompanied alien child (as defined in section 462(g)(2) of the Homeland Security Act of 2002 (6 U.S.C. 279(g)(2))):
Section 275 of the Immigration and Nationality Act (8 U.S.C. 1325) is amended—
(1) in subsection (a) by inserting after “for a subsequent commission of any such offense” the following: “or if the alien was previously convicted of an offense under subsection (e)(2)(A)”;
(2) in subsection (b)—
(3) by adding at the end the following:
“(e) Visa overstays.—
“(1) IN GENERAL.—An alien who was admitted as a nonimmigrant has violated this paragraph if the alien, for an aggregate of 10 days or more, has failed—
“(2) PENALTIES.—An alien who has violated paragraph (1)—
“(A) shall—
Section 212(d)(5) of the Immigration and Nationality Act (8 U.S.C. 1182(d)(5)) is amended to read as follows:
“(5) (A) Except as provided in subparagraphs (B) and (C) and section 214(f), the Secretary of Homeland Security, in the discretion of the Secretary, may temporarily parole into the United States any alien applying for admission to the United States who is not present in the United States, under such conditions as the Secretary may prescribe, on a case-by-case basis, and not according to eligibility criteria describing an entire class of potential parole recipients, for urgent humanitarian reasons or significant public benefit. Parole granted under this subparagraph may not be regarded as an admission of the alien. When the purposes of such parole have been served in the opinion of the Secretary, the alien shall immediately return or be returned to the custody from which the alien was paroled. After such return, the case of the alien shall be dealt with in the same manner as the case of any other applicant for admission to the United States.
“(C) The Secretary of Homeland Security may grant parole to any alien—
“(vi) who is receiving a grant of parole in furtherance of the commitment of the United States to the minimum level of annual legal migration of Cuban nationals to the United States specified in the U.S.–Cuba Joint Communiqué on Migration, done at New York September 9, 1994, and reaffirmed in the Cuba-United States: Joint Statement on Normalization of Migration, Building on the Agreement of September 9, 1994, done at New York May 2, 1995.
“(D) The Secretary of Homeland Security may grant parole to an alien who is returned to a contiguous country under section 235(b)(3) to allow the alien to attend the alien’s immigration hearing. The grant of parole shall not exceed the time required for the alien to be escorted to, and attend, the alien’s immigration hearing scheduled on the same calendar day as the grant, and to immediately thereafter be escorted back to the contiguous country. A grant of parole under this subparagraph shall not be considered for purposes of determining whether the alien is inadmissible under this Act.
“(E) For purposes of determining an alien's eligibility for parole under subparagraph (A), an urgent humanitarian reason shall be limited to circumstances in which the alien establishes that—
“(ii) the alien is the parent or legal guardian of an alien described in clause (i) and the alien described in clause (i) is a minor;
“(iii) the alien is needed in the United States in order to donate an organ or other tissue for transplant and there is insufficient time for the alien to be admitted to the United States through the normal visa process;
“(iv) the alien has a close family member in the United States whose death is imminent and the alien could not arrive in the United States in time to see such family member alive if the alien were to be admitted to the United States through the normal visa process;
“(v) the alien is seeking to attend the funeral of a close family member and the alien could not arrive in the United States in time to attend such funeral if the alien were to be admitted to the United States through the normal visa process;
“(F) For purposes of determining an alien's eligibility for parole under subparagraph (A), a significant public benefit may be determined to result from the parole of an alien only if—
“(i) the alien has assisted (or will assist, whether knowingly or not) the United States Government in a law enforcement matter;
“(G) For purposes of determining an alien's eligibility for parole under subparagraph (A), the term ‘case-by-case basis’ means that the facts in each individual case are considered and parole is not granted based on membership in a defined class of aliens to be granted parole. The fact that aliens are considered for or granted parole one-by-one and not as a group is not sufficient to establish that the parole decision is made on a ‘case-by-case basis’.
“(H) The Secretary of Homeland Security may not use the parole authority under this paragraph to parole an alien into the United States for any reason or purpose other than those described in subparagraphs (B), (C), (D), (E), and (F).
“(I) An alien granted parole may not accept employment, except that an alien granted parole pursuant to subparagraph (B) or (C) is authorized to accept employment for the duration of the parole, as evidenced by an employment authorization document issued by the Secretary of Homeland Security.
“(J) Parole granted after a departure from the United States shall not be regarded as an admission of the alien. An alien granted parole, whether as an initial grant of parole or parole upon reentry into the United States, is not eligible to adjust status to lawful permanent residence or for any other immigration benefit if the immigration status the alien had at the time of departure did not authorize the alien to adjust status or to be eligible for such benefit.
“(K) (i) Except as provided in clauses (ii) and (iii), parole shall be granted to an alien under this paragraph for the shorter of—
“(I) a period of sufficient length to accomplish the activity described in subparagraph (D), (E), or (F) for which the alien was granted parole; or
“(ii) Grants of parole pursuant to subparagraph (A) may be extended once, in the discretion of the Secretary, for an additional period that is the shorter of—
“(iii) Aliens who have a pending application to adjust status to permanent residence under section 245 may request extensions of parole under this paragraph, in 1-year increments, until the application for adjustment has been adjudicated. Such parole shall terminate immediately upon the denial of such adjustment application.
“(L) Not later than 90 days after the last day of each fiscal year, the Secretary of Homeland Security shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives and make available to the public, a report—
(a) In general.—Except as provided in subsection (b), this Act and the amendments made by this Act shall take effect on the date that is 30 days after the date of the enactment of this Act.
(b) Exceptions.—Notwithstanding subsection (a), each of the following exceptions apply:
(1) Any application for parole or advance parole filed by an alien before the date of the enactment of this Act shall be adjudicated under the law that was in effect on the date on which the application was properly filed and any approved advance parole shall remain valid under the law that was in effect on the date on which the advance parole was approved.
(2) Section 212(d)(5)(J) of the Immigration and Nationality Act, as added by section 2, shall take effect on the date of the enactment of this Act.
(3) Aliens who were paroled into the United States pursuant to section 212(d)(5)(A) of the Immigration and Nationality Act (8 U.S.C. 1182(d)(5)(A)) before January 1, 2023, shall continue to be subject to the terms of parole that were in effect on the date on which their respective parole was approved.
Any person, State, or local government that experiences financial harm in excess of $1,000 due to a failure of the Federal Government to lawfully apply the provisions of this Act or the amendments made by this Act shall have standing to bring a civil action against the Federal Government in an appropriate district court of the United States for appropriate relief.
If any provision of this Act or any amendment by this Act, or the application of such provision or amendment to any person or circumstance, is held to be unconstitutional, the remainder of this Act and the application of such provision or amendment to any other person or circumstance shall not be affected.
(a) In general.—Section 274A(b) of the Immigration and Nationality Act (8 U.S.C. 1324a(b)) is amended to read as follows:
“(b) Employment eligibility verification process.—
“(1) NEW HIRES, RECRUITMENT, AND REFERRAL.—The requirements referred to in paragraphs (1)(B) and (3) of subsection (a) are, in the case of a person or other entity hiring, recruiting, or referring an individual for employment in the United States, the following:
“(A) ATTESTATION AFTER EXAMINATION OF DOCUMENTATION.—
“(i) ATTESTATION.—During the verification period (as defined in subparagraph (E)), the person or entity shall attest, under penalty of perjury and on a form, including electronic format, designated or established by the Secretary by regulation not later than 6 months after the date of the enactment of the Legal Workforce Act, that it has verified that the individual is not an unauthorized alien by—
“(I) obtaining from the individual the individual’s social security account number or United States passport number and recording the number on the form (if the individual claims to have been issued such a number), and, if the individual does not attest to United States nationality under subparagraph (B), obtaining such identification or authorization number established by the Department of Homeland Security for the alien as the Secretary of Homeland Security may specify, and recording such number on the form; and
“(ii) DOCUMENTS EVIDENCING EMPLOYMENT AUTHORIZATION AND ESTABLISHING IDENTITY.—A document described in this subparagraph is an individual’s—
“(IV) in the case of a nonimmigrant alien authorized to work for a specific employer incident to status, a foreign passport with Form I–94 or Form I–94A, or other documentation as designated by the Secretary specifying the alien’s nonimmigrant status as long as the period of status has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified in the documentation;
“(V) passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I–94 or Form I–94A, or other documentation as designated by the Secretary, indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI; or
“(VI) other document designated by the Secretary of Homeland Security, if the document—
“(iii) DOCUMENTS EVIDENCING EMPLOYMENT AUTHORIZATION.—A document described in this subparagraph is an individual's social security account number card (other than such a card which specifies on the face that the issuance of the card does not authorize employment in the United States).
“(iv) DOCUMENTS ESTABLISHING IDENTITY OF INDIVIDUAL.—A document described in this subparagraph is—
“(I) an individual's unexpired State issued driver’s license or identification card if it contains a photograph and information such as name, date of birth, gender, height, eye color, and address;
“(v) AUTHORITY TO PROHIBIT USE OF CERTAIN DOCUMENTS.—If the Secretary of Homeland Security finds, by regulation, that any document described in clause (i), (ii), or (iii) as establishing employment authorization or identity does not reliably establish such authorization or identity or is being used fraudulently to an unacceptable degree, the Secretary may prohibit or place conditions on its use for purposes of this paragraph.
“(B) INDIVIDUAL ATTESTATION OF EMPLOYMENT AUTHORIZATION.—During the verification period (as defined in subparagraph (E)), the individual shall attest, under penalty of perjury on the form designated or established for purposes of subparagraph (A), that the individual is a citizen or national of the United States, an alien lawfully admitted for permanent residence, or an alien who is authorized under this Act or by the Secretary of Homeland Security to be hired, recruited, or referred for such employment. Such attestation may be manifested by either a handwritten or electronic signature. The individual shall also provide that individual’s social security account number or United States passport number (if the individual claims to have been issued such a number), and, if the individual does not attest to United States nationality under this subparagraph, such identification or authorization number established by the Department of Homeland Security for the alien as the Secretary may specify.
“(C) RETENTION OF VERIFICATION FORM AND VERIFICATION.—
“(i) IN GENERAL.—After completion of such form in accordance with subparagraphs (A) and (B), the person or entity shall—
“(I) retain a paper or electronic version of the form and make it available for inspection by officers of the Department of Homeland Security, the Department of Justice, or the Department of Labor during a period beginning on the date of the recruiting or referral of the individual, or, in the case of the hiring of an individual, the date on which the verification is completed, and ending—
“(ii) CONFIRMATION.—
“(I) CONFIRMATION RECEIVED.—If the person or other entity receives an appropriate confirmation of an individual’s identity and work eligibility under the verification system within the time period specified, the person or entity shall record on the form an appropriate code that is provided under the system and that indicates a final confirmation of such identity and work eligibility of the individual.
“(II) TENTATIVE NONCONFIRMATION RECEIVED.—If the person or other entity receives a tentative nonconfirmation of an individual’s identity or work eligibility under the verification system within the time period specified, the person or entity shall so inform the individual for whom the verification is sought. If the individual does not contest the nonconfirmation within the time period specified, the nonconfirmation shall be considered final. The person or entity shall then record on the form an appropriate code which has been provided under the system to indicate a final nonconfirmation. If the individual does contest the nonconfirmation, the individual shall utilize the process for secondary verification provided under subsection (d). The nonconfirmation will remain tentative until a final confirmation or nonconfirmation is provided by the verification system within the time period specified. In no case shall an employer terminate employment of an individual because of a failure of the individual to have identity and work eligibility confirmed under this section until a nonconfirmation becomes final. Nothing in this clause shall apply to a termination of employment for any reason other than because of such a failure. In no case shall an employer rescind the offer of employment to an individual because of a failure of the individual to have identity and work eligibility confirmed under this subsection until a nonconfirmation becomes final. Nothing in this subclause shall apply to a recission of the offer of employment for any reason other than because of such a failure.
“(III) FINAL CONFIRMATION OR NONCONFIRMATION RECEIVED.—If a final confirmation or nonconfirmation is provided by the verification system regarding an individual, the person or entity shall record on the form an appropriate code that is provided under the system and that indicates a confirmation or nonconfirmation of identity and work eligibility of the individual.
“(IV) EXTENSION OF TIME.—If the person or other entity in good faith attempts to make an inquiry during the time period specified and the verification system has registered that not all inquiries were received during such time, the person or entity may make an inquiry in the first subsequent working day in which the verification system registers that it has received all inquiries. If the verification system cannot receive inquiries at all times during a day, the person or entity merely has to assert that the entity attempted to make the inquiry on that day for the previous sentence to apply to such an inquiry, and does not have to provide any additional proof concerning such inquiry.
“(V) CONSEQUENCES OF NONCONFIRMATION.—
“(aa) TERMINATION OR NOTIFICATION OF CONTINUED EMPLOYMENT.—If the person or other entity has received a final nonconfirmation regarding an individual, the person or entity may terminate employment of the individual (or decline to recruit or refer the individual). If the person or entity does not terminate employment of the individual or proceeds to recruit or refer the individual, the person or entity shall notify the Secretary of Homeland Security of such fact through the verification system or in such other manner as the Secretary may specify.
“(D) EFFECTIVE DATES OF NEW PROCEDURES.—
“(i) HIRING.—Except as provided in clause (iii), the provisions of this paragraph shall apply to a person or other entity hiring an individual for employment in the United States as follows:
“(I) With respect to employers having 10,000 or more employees in the United States on the date of the enactment of the Legal Workforce Act, on the date that is 6 months after the date of the enactment of such Act.
“(II) With respect to employers having 500 or more employees in the United States, but less than 10,000 employees in the United States, on the date of the enactment of the Legal Workforce Act, on the date that is 12 months after the date of the enactment of such Act.
“(ii) RECRUITING AND REFERRING.—Except as provided in clause (iii), the provisions of this paragraph shall apply to a person or other entity recruiting or referring an individual for employment in the United States on the date that is 12 months after the date of the enactment of the Legal Workforce Act.
“(iii) AGRICULTURAL LABOR OR SERVICES.—With respect to an employee performing agricultural labor or services, this paragraph shall not apply with respect to the verification of the employee until the date that is 36 months after the date of the enactment of the Legal Workforce Act. For purposes of the preceding sentence, the term ‘agricultural labor or services’ has the meaning given such term by the Secretary of Agriculture in regulations and includes agricultural labor as defined in section 3121(g) of the Internal Revenue Code of 1986, agriculture as defined in section 3(f) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(f)), the handling, planting, drying, packing, packaging, processing, freezing, or grading prior to delivery for storage of any agricultural or horticultural commodity in its unmanufactured state, all activities required for the preparation, processing or manufacturing of a product of agriculture (as such term is defined in such section 3(f)) for further distribution, and activities similar to all the foregoing as they relate to fish or shellfish facilities. An employee described in this clause shall not be counted for purposes of clause (i).
“(iv) EXTENSIONS.—
“(I) ON REQUEST.—Upon request by an employer having 50 or fewer employees, the Secretary shall allow a one-time 6-month extension of the effective date set out in this subparagraph applicable to such employer. Such request shall be made to the Secretary and shall be made prior to such effective date.
“(v) TRANSITION RULE.—Subject to paragraph (4), the following shall apply to a person or other entity hiring, recruiting, or referring an individual for employment in the United States until the effective date or dates applicable under clauses (i) through (iii):
“(II) Subtitle A of title IV of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note), as in effect before the effective date in section 707(c) of the Legal Workforce Act.
“(III) Any other provision of Federal law requiring the person or entity to participate in the E-Verify Program described in section 403(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note), as in effect before the effective date in section 707(c) of the Legal Workforce Act, including Executive Order 13465 (8 U.S.C. 1324a note; relating to Government procurement).
“(E) VERIFICATION PERIOD DEFINED.—
“(i) IN GENERAL.—For purposes of this paragraph:
“(I) In the case of recruitment or referral, the term ‘verification period’ means the period ending on the date recruiting or referring commences.
“(II) In the case of hiring, the term ‘verification period’ means the period beginning on the date on which an offer of employment is extended and ending on the date that is three business days after the date of hire, except as provided in clause (iii). The offer of employment may be conditioned in accordance with clause (ii).
“(ii) JOB OFFER MAY BE CONDITIONAL.—A person or other entity may offer a prospective employee an employment position that is conditioned on final verification of the identity and employment eligibility of the employee using the procedures established under this paragraph.
“(iii) SPECIAL RULE.—Notwithstanding clause (i)(II), in the case of an alien who is authorized for employment and who provides evidence from the Social Security Administration that the alien has applied for a social security account number, the verification period ends three business days after the alien receives the social security account number.
“(2) REVERIFICATION FOR INDIVIDUALS WITH LIMITED WORK AUTHORIZATION.—
“(A) IN GENERAL.—Except as provided in subparagraph (B), a person or entity shall make an inquiry, as provided in subsection (d), using the verification system to seek reverification of the identity and employment eligibility of all individuals with a limited period of work authorization employed by the person or entity during the three business days after the date on which the employee's work authorization expires as follows:
“(i) With respect to employers having 10,000 or more employees in the United States on the date of the enactment of the Legal Workforce Act, beginning on the date that is 6 months after the date of the enactment of such Act.
“(ii) With respect to employers having 500 or more employees in the United States, but less than 10,000 employees in the United States, on the date of the enactment of the Legal Workforce Act, beginning on the date that is 12 months after the date of the enactment of such Act.
“(B) AGRICULTURAL LABOR OR SERVICES.—With respect to an employee performing agricultural labor or services, or an employee recruited or referred by a farm labor contractor (as defined in section 3 of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1801)), subparagraph (A) shall not apply with respect to the reverification of the employee until the date that is 36 months after the date of the enactment of the Legal Workforce Act. For purposes of the preceding sentence, the term ‘agricultural labor or services’ has the meaning given such term by the Secretary of Agriculture in regulations and includes agricultural labor as defined in section 3121(g) of the Internal Revenue Code of 1986, agriculture as defined in section 3(f) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(f)), the handling, planting, drying, packing, packaging, processing, freezing, or grading prior to delivery for storage of any agricultural or horticultural commodity in its unmanufactured state, all activities required for the preparation, processing, or manufacturing of a product of agriculture (as such term is defined in such section 3(f)) for further distribution, and activities similar to all the foregoing as they relate to fish or shellfish facilities. An employee described in this subparagraph shall not be counted for purposes of subparagraph (A).
“(C) REVERIFICATION.—Paragraph (1)(C)(ii) shall apply to reverifications pursuant to this paragraph on the same basis as it applies to verifications pursuant to paragraph (1), except that employers shall—
“(i) use a form designated or established by the Secretary by regulation for purposes of this paragraph; and
“(ii) retain a paper or electronic version of the form and make it available for inspection by officers of the Department of Homeland Security, the Department of Justice, or the Department of Labor during the period beginning on the date the reverification commences and ending on the date that is the later of 3 years after the date of such reverification or 1 year after the date the individual’s employment is terminated.
“(3) PREVIOUSLY HIRED INDIVIDUALS.—
“(A) ON A MANDATORY BASIS FOR CERTAIN EMPLOYEES.—
“(i) IN GENERAL.—Not later than the date that is 6 months after the date of the enactment of the Legal Workforce Act, an employer shall make an inquiry, as provided in subsection (d), using the verification system to seek verification of the identity and employment eligibility of any individual described in clause (ii) employed by the employer whose employment eligibility has not been verified under the E-Verify Program described in section 403(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note).
“(ii) INDIVIDUALS DESCRIBED.—An individual described in this clause is any of the following:
“(II) An employee who requires a Federal security clearance working in a Federal, State, or local government building, a military base, a nuclear energy site, a weapons site, or an airport or other facility that requires workers to carry a Transportation Worker Identification Credential (TWIC).
“(III) An employee assigned to perform work in the United States under a Federal contract, except that this subclause—
“(aa) is not applicable to individuals who have a clearance under Homeland Security Presidential Directive 12 (HSPD 12 clearance), are administrative or overhead personnel, or are working solely on contracts that provide Commercial Off The Shelf goods or services as set forth by the Federal Acquisition Regulatory Council, unless they are subject to verification under subclause (II); and
“(B) ON A MANDATORY BASIS FOR MULTIPLE USERS OF SAME SOCIAL SECURITY ACCOUNT NUMBER.—In the case of an employer who is required by this subsection to use the verification system described in subsection (d), or has elected voluntarily to use such system, the employer shall make inquiries to the system in accordance with the following:
“(i) The Commissioner of Social Security shall notify annually employees (at the employee address listed on the Wage and Tax Statement) who submit a social security account number to which more than one employer reports income and for which there is a pattern of unusual multiple use. The notification letter shall identify the number of employers to which income is being reported as well as sufficient information notifying the employee of the process to contact the Social Security Administration Fraud Hotline if the employee believes the employee’s identity may have been stolen. The notice shall not share information protected as private, in order to avoid any recipient of the notice from being in the position to further commit or begin committing identity theft.
“(ii) If the person to whom the social security account number was issued by the Social Security Administration has been identified and confirmed by the Commissioner, and indicates that the social security account number was used without their knowledge, the Secretary and the Commissioner shall lock the social security account number for employment eligibility verification purposes and shall notify the employers of the individuals who wrongfully submitted the social security account number that the employee may not be work eligible.
“(C) ON A VOLUNTARY BASIS.—Subject to paragraph (2), and subparagraphs (A) through (C) of this paragraph, beginning on the date that is 30 days after the date of the enactment of the Legal Workforce Act, an employer may make an inquiry, as provided in subsection (d), using the verification system to seek verification of the identity and employment eligibility of any individual employed by the employer. If an employer chooses voluntarily to seek verification of any individual employed by the employer, the employer shall seek verification of all individuals employed at the same geographic location or, at the option of the employer, all individuals employed within the same job category, as the employee with respect to whom the employer seeks voluntarily to use the verification system. An employer’s decision about whether or not voluntarily to seek verification of its current workforce under this subparagraph may not be considered by any government agency in any proceeding, investigation, or review provided for in this Act.
“(D) VERIFICATION.—Paragraph (1)(C)(ii) shall apply to verifications pursuant to this paragraph on the same basis as it applies to verifications pursuant to paragraph (1), except that employers shall—
“(i) use a form designated or established by the Secretary by regulation for purposes of this paragraph; and
“(ii) retain a paper or electronic version of the form and make it available for inspection by officers of the Department of Homeland Security, the Department of Justice, or the Department of Labor during the period beginning on the date the verification commences and ending on the date that is the later of 3 years after the date of such verification or 1 year after the date the individual’s employment is terminated.
“(4) EARLY COMPLIANCE.—
“(A) FORMER E-VERIFY REQUIRED USERS, INCLUDING FEDERAL CONTRACTORS.—Notwithstanding the deadlines in paragraphs (1) and (2), beginning on the date of the enactment of the Legal Workforce Act, the Secretary is authorized to commence requiring employers required to participate in the E-Verify Program described in section 403(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note), including employers required to participate in such program by reason of Federal acquisition laws (and regulations promulgated under those laws, including the Federal Acquisition Regulation), to commence compliance with the requirements of this subsection (and any additional requirements of such Federal acquisition laws and regulation) in lieu of any requirement to participate in the E-Verify Program.
“(B) FORMER E-VERIFY VOLUNTARY USERS AND OTHERS DESIRING EARLY COMPLIANCE.—Notwithstanding the deadlines in paragraphs (1) and (2), beginning on the date of the enactment of the Legal Workforce Act, the Secretary shall provide for the voluntary compliance with the requirements of this subsection by employers voluntarily electing to participate in the E-Verify Program described in section 403(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) before such date, as well as by other employers seeking voluntary early compliance.
“(5) COPYING OF DOCUMENTATION PERMITTED.—Notwithstanding any other provision of law, the person or entity may copy a document presented by an individual pursuant to this subsection and may retain the copy, but only (except as otherwise permitted under law) for the purpose of complying with the requirements of this subsection.
“(6) LIMITATION ON USE OF FORMS.—A form designated or established by the Secretary of Homeland Security under this subsection and any information contained in or appended to such form, may not be used for purposes other than for enforcement of this Act and any other provision of Federal criminal law.
“(7) GOOD FAITH COMPLIANCE.—
“(A) IN GENERAL.—Except as otherwise provided in this subsection, a person or entity is considered to have complied with a requirement of this subsection notwithstanding a technical or procedural failure to meet such requirement if there was a good faith attempt to comply with the requirement.
“(B) EXCEPTION IF FAILURE TO CORRECT AFTER NOTICE.—Subparagraph (A) shall not apply if—
“(ii) the Secretary of Homeland Security has explained to the person or entity the basis for the failure and why it is not de minimus;
“(8) SINGLE EXTENSION OF DEADLINES UPON CERTIFICATION.—In a case in which the Secretary of Homeland Security has certified to the Congress that the employment eligibility verification system required under subsection (d) will not be fully operational by the date that is 6 months after the date of the enactment of the Legal Workforce Act, each deadline established under this section for an employer to make an inquiry using such system shall be extended by 6 months. No other extension of such a deadline shall be made except as authorized under paragraph (1)(D)(iv).”.
(b) Date of hire.—Section 274A(h) of the Immigration and Nationality Act (8 U.S.C. 1324a(h)) is amended by adding at the end the following:
Section 274A(d) of the Immigration and Nationality Act (8 U.S.C. 1324a(d)) is amended to read as follows:
“(d) Employment eligibility verification system.—
“(1) IN GENERAL.—Patterned on the employment eligibility confirmation system established under section 404 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note), the Secretary of Homeland Security shall establish and administer a verification system through which the Secretary (or a designee of the Secretary, which may be a nongovernmental entity)—
“(2) INITIAL RESPONSE.—The verification system shall provide confirmation or a tentative nonconfirmation of an individual’s identity and employment eligibility within 3 working days of the initial inquiry. If providing confirmation or tentative nonconfirmation, the verification system shall provide an appropriate code indicating such confirmation or such nonconfirmation.
“(3) SECONDARY CONFIRMATION PROCESS IN CASE OF TENTATIVE NONCONFIRMATION.—In cases of tentative nonconfirmation, the Secretary shall specify, in consultation with the Commissioner of Social Security, an available secondary verification process to confirm the validity of information provided and to provide a final confirmation or nonconfirmation not later than 10 working days after the date on which the notice of the tentative nonconfirmation is received by the employee. The Secretary, in consultation with the Commissioner, may extend this deadline once on a case-by-case basis for a period of 10 working days, and if the time is extended, shall document such extension within the verification system. The Secretary, in consultation with the Commissioner, shall notify the employee and employer of such extension. The Secretary, in consultation with the Commissioner, shall create a standard process of such extension and notification and shall make a description of such process available to the public. When final confirmation or nonconfirmation is provided, the verification system shall provide an appropriate code indicating such confirmation or nonconfirmation.
“(4) DESIGN AND OPERATION OF SYSTEM.—The verification system shall be designed and operated—
“(A) to maximize its reliability and ease of use by persons and other entities consistent with insulating and protecting the privacy and security of the underlying information;
“(B) to respond to all inquiries made by such persons and entities on whether individuals are authorized to be employed and to register all times when such inquiries are not received;
“(C) with appropriate administrative, technical, and physical safeguards to prevent unauthorized disclosure of personal information;
“(D) to have reasonable safeguards against the system’s resulting in unlawful discriminatory practices based on national origin or citizenship status, including—
“(5) RESPONSIBILITIES OF COMMISSIONER OF SOCIAL SECURITY.—As part of the verification system, the Commissioner of Social Security, in consultation with the Secretary of Homeland Security (and any designee of the Secretary selected to establish and administer the verification system), shall establish a reliable, secure method, which, within the time periods specified under paragraphs (2) and (3), compares the name and social security account number provided in an inquiry against such information maintained by the Commissioner in order to validate (or not validate) the information provided regarding an individual whose identity and employment eligibility must be confirmed, the correspondence of the name and number, and whether the individual has presented a social security account number that is not valid for employment. The Commissioner shall not disclose or release social security information (other than such confirmation or nonconfirmation) under the verification system except as provided for in this section or section 205(c)(2)(I) of the Social Security Act.
“(6) RESPONSIBILITIES OF SECRETARY OF HOMELAND SECURITY.—As part of the verification system, the Secretary of Homeland Security (in consultation with any designee of the Secretary selected to establish and administer the verification system), shall establish a reliable, secure method, which, within the time periods specified under paragraphs (2) and (3), compares the name and alien identification or authorization number (or any other information as determined relevant by the Secretary) which are provided in an inquiry against such information maintained or accessed by the Secretary in order to validate (or not validate) the information provided, the correspondence of the name and number, whether the alien is authorized to be employed in the United States, or to the extent that the Secretary determines to be feasible and appropriate, whether the records available to the Secretary verify the identity or status of a national of the United States.
“(7) UPDATING INFORMATION.—The Commissioner of Social Security and the Secretary of Homeland Security shall update their information in a manner that promotes the maximum accuracy and shall provide a process for the prompt correction of erroneous information, including instances in which it is brought to their attention in the secondary verification process described in paragraph (3).
“(8) LIMITATION ON USE OF THE VERIFICATION SYSTEM AND ANY RELATED SYSTEMS.—
“(A) NO NATIONAL IDENTIFICATION CARD.—Nothing in this section shall be construed to authorize, directly or indirectly, the issuance or use of national identification cards or the establishment of a national identification card.
“(B) CRITICAL INFRASTRUCTURE.—The Secretary may authorize or direct any person or entity responsible for granting access to, protecting, securing, operating, administering, or regulating part of the critical infrastructure (as defined in section 1016(e) of the Critical Infrastructure Protection Act of 2001 (42 U.S.C. 5195c(e))) to use the verification system to the extent the Secretary determines that such use will assist in the protection of the critical infrastructure.
“(9) REMEDIES.—If an individual alleges that the individual would not have been dismissed from a job or would have been hired for a job but for an error of the verification mechanism, the individual may seek compensation only through the mechanism of the Federal Tort Claims Act, and injunctive relief to correct such error. No class action may be brought under this paragraph.”.
(a) Additional changes to rules for recruitment, referral, and continuation of employment.—Section 274A(a) of the Immigration and Nationality Act (8 U.S.C. 1324a(a)) is amended—
(b) Definition.—Section 274A(h) of the Immigration and Nationality Act (8 U.S.C. 1324a(h)), as amended by section 2(b) of this Act, is further amended by adding at the end the following:
“(5) DEFINITION OF RECRUIT OR REFER.—As used in this section, the term ‘refer’ means the act of sending or directing a person who is in the United States or transmitting documentation or information to another, directly or indirectly, with the intent of obtaining employment in the United States for such person. Only persons or entities referring for remuneration (whether on a retainer or contingency basis) are included in the definition, except that union hiring halls that refer union members or nonunion individuals who pay union membership dues are included in the definition whether or not they receive remuneration, as are labor service entities or labor service agencies, whether public, private, for-profit, or nonprofit, that refer, dispatch, or otherwise facilitate the hiring of laborers for any period of time by a third party. As used in this section, the term ‘recruit’ means the act of soliciting a person who is in the United States, directly or indirectly, and referring the person to another with the intent of obtaining employment for that person. Only persons or entities referring for remuneration (whether on a retainer or contingency basis) are included in the definition, except that union hiring halls that refer union members or nonunion individuals who pay union membership dues are included in this definition whether or not they receive remuneration, as are labor service entities or labor service agencies, whether public, private, for-profit, or nonprofit that recruit, dispatch, or otherwise facilitate the hiring of laborers for any period of time by a third party.”.
(c) Effective date.—The amendments made by this section shall take effect on the date that is 1 year after the date of the enactment of this Act, except that the amendments made by subsection (a) shall take effect 6 months after the date of the enactment of this Act insofar as such amendments relate to continuation of employment.
Section 274A(a)(3) of the Immigration and Nationality Act (8 U.S.C. 1324a(a)(3)) is amended to read as follows:
“(3) GOOD FAITH DEFENSE.—
“(A) DEFENSE.—An employer (or person or entity that hires, employs, recruits, or refers (as defined in subsection (h)(5)), or is otherwise obligated to comply with this section) who establishes that it has complied in good faith with the requirements of subsection (b)—
“(i) shall not be liable to a job applicant, an employee, the Federal Government, or a State or local government, under Federal, State, or local criminal or civil law for any employment-related action taken with respect to a job applicant or employee in good-faith reliance on information provided through the system established under subsection (d); and
“(B) MITIGATION ELEMENT.—For purposes of subparagraph (A)(i), if an employer proves by a preponderance of the evidence that the employer uses a reasonable, secure, and established technology to authenticate the identity of the new employee, that fact shall be taken into account for purposes of determining good faith use of the system established under subsection (d).
“(C) FAILURE TO SEEK AND OBTAIN VERIFICATION.—Subject to the effective dates and other deadlines applicable under subsection (b), in the case of a person or entity in the United States that hires, or continues to employ, an individual, or recruits or refers an individual for employment, the following requirements apply:
“(i) FAILURE TO SEEK VERIFICATION.—
“(I) IN GENERAL.—If the person or entity has not made an inquiry, under the mechanism established under subsection (d) and in accordance with the timeframes established under subsection (b), seeking verification of the identity and work eligibility of the individual, the defense under subparagraph (A) shall not be considered to apply with respect to any employment, except as provided in subclause (II).
“(II) SPECIAL RULE FOR FAILURE OF VERIFICATION MECHANISM.—If such a person or entity in good faith attempts to make an inquiry in order to qualify for the defense under subparagraph (A) and the verification mechanism has registered that not all inquiries were responded to during the relevant time, the person or entity can make an inquiry until the end of the first subsequent working day in which the verification mechanism registers no nonresponses and qualify for such defense.
“(ii) FAILURE TO OBTAIN VERIFICATION.—If the person or entity has made the inquiry described in clause (i)(I) but has not received an appropriate verification of such identity and work eligibility under such mechanism within the time period specified under subsection (d)(2) after the time the verification inquiry was received, the defense under subparagraph (A) shall not be considered to apply with respect to any employment after the end of such time period.”.
Section 274A(h)(2) of the Immigration and Nationality Act (8 U.S.C. 1324a(h)(2)) is amended to read as follows:
“(2) PREEMPTION.—
“(A) SINGLE, NATIONAL POLICY.—The provisions of this section preempt any State or local law, ordinance, policy, or rule, including any criminal or civil fine or penalty structure, insofar as they may now or hereafter relate to the hiring, continued employment, or status verification for employment eligibility purposes, of unauthorized aliens.
“(B) STATE ENFORCEMENT OF FEDERAL LAW.—
“(i) BUSINESS LICENSING.—A State, locality, municipality, or political subdivision may exercise its authority over business licensing and similar laws as a penalty for failure to use the verification system described in subsection (d) to verify employment eligibility when and as required under subsection (b).
“(ii) GENERAL RULES.—A State, at its own cost, may enforce the provisions of this section, but only insofar as such State follows the Federal regulations implementing this section, applies the Federal penalty structure set out in this section, and complies with all Federal rules and guidance concerning implementation of this section. Such State may collect any fines assessed under this section. An employer may not be subject to enforcement, including audit and investigation, by both a Federal agency and a State for the same violation under this section. Whichever entity, the Federal agency or the State, is first to initiate the enforcement action, has the right of first refusal to proceed with the enforcement action. The Secretary must provide copies of all guidance, training, and field instructions provided to Federal officials implementing the provisions of this section to each State.”.
(a) In general.—Subtitle A of title IV of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) is repealed.
(b) References.—Any reference in any Federal law, Executive order, rule, regulation, or delegation of authority, or any document of, or pertaining to, the Department of Homeland Security, Department of Justice, or the Social Security Administration, to the employment eligibility confirmation system established under section 404 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) is deemed to refer to the employment eligibility confirmation system established under section 274A(d) of the Immigration and Nationality Act, as amended by section 3 of this Act.
Section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a) is amended—
(1) in subsection (e)(1)—
(2) in subsection (e)(4)—
(A) in subparagraph (A), in the matter before clause (i), by inserting “, subject to paragraph (10),” after “in an amount”;
(B) in subparagraph (A)(i), by striking “not less than $250 and not more than $2,000” and inserting “not less than $2,500 and not more than $5,000”;
(C) in subparagraph (A)(ii), by striking “not less than $2,000 and not more than $5,000” and inserting “not less than $5,000 and not more than $10,000”;
(3) in subsection (e)(5)—
(E) by adding at the end the following: “Failure by a person or entity to utilize the employment eligibility verification system as required by law, or providing information to the system that the person or entity knows or reasonably believes to be false, shall be treated as a violation of subsection (a)(1)(A).”;
(4) by adding at the end of subsection (e) the following:
“(10) EXEMPTION FROM PENALTY FOR GOOD FAITH VIOLATION.—In the case of imposition of a civil penalty under paragraph (4)(A) with respect to a violation of subsection (a)(1)(A) or (a)(2) for hiring or continuation of employment or recruitment or referral by person or entity and in the case of imposition of a civil penalty under paragraph (5) for a violation of subsection (a)(1)(B) for hiring or recruitment or referral by a person or entity, the penalty otherwise imposed may be waived or reduced if the violator establishes that the violator acted in good faith.
“(11) MITIGATION ELEMENT.—For purposes of paragraph (4), the size of the business shall be taken into account when assessing the level of civil money penalty.
“(12) AUTHORITY TO DEBAR EMPLOYERS FOR CERTAIN VIOLATIONS.—
“(A) IN GENERAL.—If a person or entity is determined by the Secretary of Homeland Security to be a repeat violator of paragraph (1)(A) or (2) of subsection (a), or is convicted of a crime under this section, such person or entity may be considered for debarment from the receipt of Federal contracts, grants, or cooperative agreements in accordance with the debarment standards and pursuant to the debarment procedures set forth in the Federal Acquisition Regulation.
“(B) DOES NOT HAVE CONTRACT, GRANT, AGREEMENT.—If the Secretary of Homeland Security or the Attorney General wishes to have a person or entity considered for debarment in accordance with this paragraph, and such a person or entity does not hold a Federal contract, grant, or cooperative agreement, the Secretary or Attorney General shall refer the matter to the Administrator of General Services to determine whether to list the person or entity on the List of Parties Excluded from Federal Procurement, and if so, for what duration and under what scope.
“(C) HAS CONTRACT, GRANT, AGREEMENT.—If the Secretary of Homeland Security or the Attorney General wishes to have a person or entity considered for debarment in accordance with this paragraph, and such person or entity holds a Federal contract, grant, or cooperative agreement, the Secretary or Attorney General shall advise all agencies or departments holding a contract, grant, or cooperative agreement with the person or entity of the Government’s interest in having the person or entity considered for debarment, and after soliciting and considering the views of all such agencies and departments, the Secretary or Attorney General may refer the matter to any appropriate lead agency to determine whether to list the person or entity on the List of Parties Excluded from Federal Procurement, and if so, for what duration and under what scope.
“(13) OFFICE FOR STATE AND LOCAL GOVERNMENT COMPLAINTS.—The Secretary of Homeland Security shall establish an office—
“(A) to which State and local government agencies may submit information indicating potential violations of subsection (a), (b), or (g)(1) that were generated in the normal course of law enforcement or the normal course of other official activities in the State or locality;
“(B) that is required to indicate to the complaining State or local agency within five business days of the filing of such a complaint by identifying whether the Secretary will further investigate the information provided;
“(C) that is required to investigate those complaints filed by State or local government agencies that, on their face, have a substantial probability of validity;
(5) by amending paragraph (1) of subsection (f) to read as follows:
“(1) CRIMINAL PENALTY.—Any person or entity which engages in a pattern or practice of violations of subsection (a) (1) or (2) shall be fined not more than $5,000 for each unauthorized alien with respect to which such a violation occurs, imprisoned for not more than 18 months, or both, notwithstanding the provisions of any other Federal law relating to fine levels.”.
Section 1546(b) of title 18, United States Code, is amended—
(a) Funding under agreement.—Effective for fiscal years beginning on or after October 1, 2023, the Commissioner of Social Security and the Secretary of Homeland Security shall enter into and maintain an agreement which shall—
(1) provide funds to the Commissioner for the full costs of the responsibilities of the Commissioner under section 274A(d) of the Immigration and Nationality Act (8 U.S.C. 1324a(d)), as amended by section 3 of this Act, including (but not limited to)—
(b) Continuation of employment verification in absence of timely agreement.—In any case in which the agreement required under subsection (a) for any fiscal year beginning on or after October 1, 2023, has not been reached as of October 1 of such fiscal year, the latest agreement between the Commissioner and the Secretary of Homeland Security providing for funding to cover the costs of the responsibilities of the Commissioner under section 274A(d) of the Immigration and Nationality Act (8 U.S.C. 1324a(d)) shall be deemed in effect on an interim basis for such fiscal year until such time as an agreement required under subsection (a) is subsequently reached, except that the terms of such interim agreement shall be modified by the Director of the Office of Management and Budget to adjust for inflation and any increase or decrease in the volume of requests under the employment eligibility verification system. In any case in which an interim agreement applies for any fiscal year under this subsection, the Commissioner and the Secretary shall, not later than October 1 of such fiscal year, notify the Committee on Ways and Means, the Committee on the Judiciary, and the Committee on Appropriations of the House of Representatives and the Committee on Finance, the Committee on the Judiciary, and the Committee on Appropriations of the Senate of the failure to reach the agreement required under subsection (a) for such fiscal year. Until such time as the agreement required under subsection (a) has been reached for such fiscal year, the Commissioner and the Secretary shall, not later than the end of each 90-day period after October 1 of such fiscal year, notify such Committees of the status of negotiations between the Commissioner and the Secretary in order to reach such an agreement.
(a) Blocking misused social security account numbers.—The Secretary of Homeland Security, in consultation with the Commissioner of Social Security, shall establish a program in which social security account numbers that have been identified to be subject to unusual multiple use in the employment eligibility verification system established under section 274A(d) of the Immigration and Nationality Act (8 U.S.C. 1324a(d)), as amended by section 3 of this Act, or that are otherwise suspected or determined to have been compromised by identity fraud or other misuse, shall be blocked from use for such system purposes unless the individual using such number is able to establish, through secure and fair additional security procedures, that the individual is the legitimate holder of the number.
(b) Allowing suspension of use of certain social security account numbers.—The Secretary of Homeland Security, in consultation with the Commissioner of Social Security, shall establish a program which shall provide a reliable, secure method by which victims of identity fraud and other individuals may suspend or limit the use of their social security account number or other identifying information for purposes of the employment eligibility verification system established under section 274A(d) of the Immigration and Nationality Act (8 U.S.C. 1324a(d)), as amended by section 3 of this Act. The Secretary may implement the program on a limited pilot program basis before making it fully available to all individuals.
(c) Allowing parents To prevent theft of their child’s identity.—The Secretary of Homeland Security, in consultation with the Commissioner of Social Security, shall establish a program which shall provide a reliable, secure method by which parents or legal guardians may suspend or limit the use of the social security account number or other identifying information of a minor under their care for the purposes of the employment eligibility verification system established under 274A(d) of the Immigration and Nationality Act (8 U.S.C. 1324a(d)), as amended by section 3 of this Act. The Secretary may implement the program on a limited pilot program basis before making it fully available to all individuals.
An employer who uses the photo matching tool used as part of the E-Verify System shall match the photo tool photograph to both the photograph on the identity or employment eligibility document provided by the employee and to the face of the employee submitting the document for employment verification purposes.
Not later than 24 months after the date of the enactment of this Act, the Secretary of Homeland Security, after consultation with the Commissioner of Social Security and the Director of the National Institute of Standards and Technology, shall establish by regulation not less than 2 Identity Authentication Employment Eligibility Verification pilot programs, each using a separate and distinct technology (the “Authentication Pilots”). The purpose of the Authentication Pilots shall be to provide for identity authentication and employment eligibility verification with respect to enrolled new employees which shall be available to any employer that elects to participate in either of the Authentication Pilots. Any participating employer may cancel the employer’s participation in the Authentication Pilot after one year after electing to participate without prejudice to future participation. The Secretary shall report to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate the Secretary’s findings on the Authentication Pilots, including the authentication technologies chosen, not later than 12 months after commencement of the Authentication Pilots.
(a) In general.—Not later than 1 year after the date of the enactment of this Act, the Inspector General of the Social Security Administration shall complete audits of the following categories in order to uncover evidence of individuals who are not authorized to work in the United States:
(b) Submission.—The Inspector General of the Social Security Administration shall submit the audits completed under subsection (a) to the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate for review of the evidence of individuals who are not authorized to work in the United States. The Chairmen of those Committees shall then determine information to be shared with the Secretary of Homeland Security so that such Secretary can investigate the unauthorized employment demonstrated by such evidence.
Not later than 36 months after the date of enactment, the Secretary of the Department of Homeland Security, in consultation with the Secretary of the Department of Agriculture, shall submit to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate, a report that includes the following:
(3) The number of aliens in the agricultural workforce who are authorized to work in the United States.
(4) The number of aliens in the agricultural workforce who are not authorized to work in the United States.
(6) The percentage of total agricultural industry costs represented by agricultural labor during each of the last ten years.
(7) The percentage of agricultural costs invested in mechanization during each of the last ten years.
The rules relating to “Temporary Agricultural Employment of H-2A Nonimmigrants in the United States” (87 Fed. Reg. 61660 (Oct. 12, 2022)) and to “Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States” (88 Fed. Reg. 12760 (Feb. 28, 2023)) shall have no force or effect, may not be reissued in substantially the same form, and any new rules that are substantially the same as such rules may not be issued.
Union Calendar No. 31 | |||||
| |||||
[Report No. 118–47, Part I] | |||||
A BILL | |||||
To provide for reform of the asylum system and protection of the border. | |||||
May 5, 2023 | |||||
Reported from the Committee on the Judiciary with an amendment | |||||
May 5, 2023 | |||||
Committees on Ways and Means, Education and the Workforce, and Homeland Security discharged; committed to the Committee of the Whole House on the State of the Union and ordered to be printed |