This morning we received official confirmation that the H-1B cap for the fiscal year starting October 1st has been hit. The demand for H-1B visas has been extraordinary even with the creation of exemptions in recent years for a number of types of employers and employees.

Many in Congress see this as a bad sign. Too many foreign workers coming in to take jobs from qualified Americans. But the H-1B numbers are a barometer of the overall US job market. When H-1B usage increases, it is because American workers are generally not available. By the time filing fees, expenses and legal fees are factored in, employers can easily spend $5000 to $6000 for an H-1B worker. After extensions and green card costs are added in, you’re looking at another $10,000+. With H-1B portability rules making it easier for H-1B workers to jump from employer to employer, employers risk spending all this money only to have an employee leave. And stricter prevailing wage rules mean that employers can’t get around these costs by cutting the H-1B worker’s salary.

US unemployment is currently right at 5%. That’s virtually full employment and is one of the lowest unemployment rates in the industrialized world. Yet authorized H-1B numbers are 1/3 of what they were just a few years ago. When employers are unable to find enough workers and foreign workers are unavailable to help fill the gap and they are facing global competition, they are left with few choices.

One of the options that many are choosing is the outsourcing of operations. Should we be surprised that so many professional jobs are now going to India where there are plenty of qualified workers. In the age of the Internet and cheap telecommunications and increasing pressures to keep prices down, the temptations of employers to move operations overseas is enormous. H-1Bs should be seen as a way for employers to keep profitably keep operations in the US. And that SAVES jobs for Americans.

Some employers don’t have the option of going overseas to get the work done. But this is not good news for Americans – either workers in those professions or the public. This is particularly true in health care and education. There is a national shortage of doctors in the US. When there are too few doctors, health care costs rise and access to doctors must be rationed.

There is also a serious teacher shortage in the US and H-1B workers have helped alleviate the problem in many school districts. The only solution for schools with too few teachers and limits on how much they can pay is to increase class sizes. And study after study show that the more students per teacher in the classroom, the worse students perform.

Congress MUST act. The solution is to let the market determine how many H-1Bs are needed, not politicians. The new McCain-Kennedy immigration reform proposal contains just such a measure for a proposed program for lesser skilled workers. It’s about time we had a similar system for H-1Bs. The quota rises as demand increases and drops as demand drops.
We provide an overview of the meaning of the H-1B cap in this week’s ABCs of Immigration article.

*****

In firm news, this week I moderated an ILW.com program on allied health care workers. The program was the third in a series that also covered physician immigration and nursing immigration.

We’re also pleased to welcome new attorney Maryam Tanhaee to our Memphis office staff. Maryam clerked for our firm in years past and will now be joining us an associate. Her practice will focus on business and employment immigration. Welcome Maryam!

*****

I also wanted to note the passing of an immigrant to the United States who truly represented the American dream. Most of you probably have heard about the death of Peter Jennings, one of the country’s leading television journalists. He had anchored World News Tonight on ABC News for more than two decades and was one of the most familiar faces in broadcast journalism. Jennings was a high school dropout who immigrated to the US from his native Canada in the early 1960s. He quickly rose to prominence and by age 26 was anchoring the evening news for the upstart ABC television network.

Jennings only naturalized a few years ago. Colleagues said he always wanted to be an American, but was concerned about offending his parents. He voted for the first time in 2003. His colleagues Cokie Roberts and Charles Gibson recalled that Jennings was “giddy” about becoming a US citizen and how excited he was when he voted for the first time.

Jennings contributions to American journalism were enormous. He won 16 Emmy Awards and shaped ABC News as it went from a struggling news organization to a leader. He will be missed.

We've posted the latest processing times for the California and Vermont Service Centers and the National Benefits Center in Missouri. Click here to see them.

The latest issue of Siskind's Immigration Bulletin is now online. Here is the table of contents. Click here to read any of the articles.

1. Openers
2. The ABC’s of Immigration: The H-1B Cap
3. Ask Visalaw.com
4. Border and Enforcement News
5. News From The Courts
6. Government Processing Times
7. News Bytes
8. International Roundup
9. Legislative Update
10. State Department Visa Bulletin
11. Opinion: A Conservative Case For Immigration Reform, by Tamar Jacoby
12. US-VISIT Begins Testing Radio Frequency Identification Technology in Select Land Border Ports
13. Labor Department Clarifies Filing Procedures
14. Temporary Protected Status for Somali Citizens Extended for Twelve Months
15. Minuteman Official Quits Amidst Controversy
16. Border Protection Corps Act of 2005 Introduced in House

We've posted the State Department Visa Bulletin for August 2005. Click here to read it.

Earlier this summer we issued a special newsletter that provided a detailed section-by-section summary of the McCain Kennedy comprehensive immigration reform bill. Today we provide a similar special issue with a complete section-by-section summary of the other major immigration reform proposal in the Senate – the just introduced Cornyn-Kyl bill known as the Comprehensive Enforcement and Immigration Reform Act of 2005 (“CEIRA”).

There are also immigration reform proposals in the House. A pro-immigration plan has been introduced by Congresswoman Sheila Jackson-Lee (D-TX) and a restrictionist proposal has been introduced by Congressman Tom Tancredo (R-CO). We expect immigration reform legislation to move in the Senate before the House and the bill that passes in the Senate is likely to largely shape what will happen in the House. So we are focusing our attention for now on the Senate.

The Cornyn-Kyl bill is certainly more restrictive than McCain-Kennedy and many pro-immigration groups will likely oppose its passage in its current form. The bill’s guest worker program (the W and DMD programs) have a number of restrictions and are tied to the notion that most of the people in the without status now will likely have to leave. Such workers are theoretically eligible for green card sponsorship by employers under the normal labor certification rules, but the bill largely punts on making the necessary increase in green card quotas to make such sponsorship possible. The proposal simply calls for a task force to eventually issue recommendations on increasing employment-based green card numbers. The same is true for increasing family-based green card numbers.

Like McCain-Kennedy, the bill adds a number of new provisions – and, importantly, authorized funds – to tighten border security. And it has new provision tightens up employment verification rules for employers. It also gives state and local governments a larger role in assisting in enforcing immigration laws and offers increased reimbursement for state and local agencies forced to spend money handling criminal aliens.

The end result, however, could be a melding of the two bills into a compromise piece of legislation. Senators McCain and Specter have already suggested just that and the President has been careful not to endorse either bill. The role of congressional leaders and the White House will be, of course, crucial to reaching a compromise. And pro-immigration and restrictionist organizations will need to decide if they want to take an all-or-nothing approach versus negotiating.

We will follow movement on this legislation closely and will, as always, keep readers informed of developments.

We’ll return to our regular format next week.

Cornyn-Kyl Bill Summary

Title I – Border Enforcement and Visa Security

Section 101 – Necessary assets for controlling United States borders

DHS is directed to increase Customs and Border Protection officers by 250 per year for the next five years. The necessary funds are authorized to be appropriated.

$25,000,000 per year for the next five years is to be appropriated for the transportation of aliens.

DHS shall have $1,000,000,000 per year for five years to procure unmanned planes, cameras, poles, sensors and other technologies and to construct all-weather roads and acquire vehicle barriers to achieve “operational control” of the borders.

Checkpoints may be set up in border patrol sectors along the US-Mexico border.

Section 102 – Expedited Removal Between Ports of Entry

Expedited removal authority is expanded to all border patrol sectors on the US-Mexico border. Supervisory officers must now sign off on expedited removals. DHS must also provide employees with comprehensive training on expedited removal procedures.

$10,000,000 per year for the next five years is authorized to carry out this section.

Section 103 – Document Fraud Detection

DHS is granted $5,000,000 per year for five years to train customs and border protection officers in identifying fraudulent travel documents.

Section 104 – Improved Document Integrity

Section 303 of the Enhanced Border Security and Visa Entry Reform Act of 2002 to require that by October 26, 2007, all immigration documents, including I-94s, must be machine-readable, tamper-resistant and have biometric identifiers.

Section 105 – Cancellation of Visas

Section 222(g) of the INA is amended so that all visas issued to an alien will become voided when a person overstays a visa and not just the particular visa that person overstayed. However, persons subject to 222(g) can now pursue a visa not only in the country of nationality, but also in the country of “foreign residence.”

Section 106 – Biometric Entry-Exit System

This section expands the ground of admissibility regarding possessing valid, unexpired passport and entry documents. Persons who fail to comply with a lawful request for biometric data are inadmissible, though DHS may waive the ground of inadmissibility at its discretion.

Section 215 of the INA which governs travel documents for entering and exiting the US for aliens and citizens is amended to specifically permit DHS to require aliens leaving the US to provide biometric data relating to their immigration status.

Section 235 of the INA which currently authorizes DHS officials to board a vessel, aircraft or vehicle to search for undocumented immigrants is expanded to allow DHS officials to collect biometric data from any applicants for admission and from any lawful permanent resident.

Section 252 of the INA is amended to allow the collection of biometric data from alien crewman seeking to land temporarily in the US. [NOTE: the wording of this section appears to be flawed since it does not clearly state where the language is to be inserted in Section 252].

The automated biometric entry and exit data system required under the 9/11 Commission Report Implementation Act of 2004 and designed to speed processing of pre-screened individuals is expanded to include all land border ports of entry. The act specifically waives the applicability of the Administrative Procedures Act in the implementation of this mandate. Funding as necessary for two years is authorized to accomplish this objective.

Section 107 – Release of Aliens From Noncontiguous Countries

Mandates that aliens apprehended within 100 miles of the US border or who present a flight risk will have a bond of at least $5000 as opposed to the normal minimum bond of $1500 called for under Section 236(a)(2) of the INA. This section also calls for a report to be issued by DHS within two years of the passage of CEIRA regarding the number of aliens from countries not contiguous to the US who are apprehended between land border ports of entry.

Section 108 – Reducing Illegal Immigration and Alien Smuggling on Tribal Lands

DHS is authorized to grant awards to Indian tribes along US borders that have been adversely affected by illegal immigration. The funds may be used for law enforcement, health care, environmental restoration and the preservation of cultural resources. The section does not require any demonstrated connection of the spending to any demonstrated adverse impact from illegal immigration. Within six months of the enactment of CEIRA, DHS must submit to Congress a report describing the level of access of Border Patrol agents on tribal lands, describing how immigration law enforcement would be improved by enhanced access, describing a strategy to improve such access through cooperation with tribal authorities and identifying DHS grants available to Indian tribes relating to border security. $10,000,000 per year for five years is authorized to carry out this section.

Title II – Interior Enforcement

Subtitle A – General Enforcement

Section 201 – Detention Space and Removal Capacity

The 9/11 Commission Report implementation act is amended so that the increase of 8,000 detention beds per year for five years for detained immigrants called for under that act is instead an increase of 10,000 beds. Necessary funding is authorized for this five-year expansion.

Section 202 – Detention of Dangerous Aliens

This section narrows the ground for discretionary waiving of security-related bars to the granting of asylum status.

The Secretary of Homeland Security or the Attorney General are granted authority to exercise discretion in some cases and allow an alien to remain in the US despite the provisions of Section 241(b)(3)(B) of the INA (mandating removal of certain aliens despite a demonstrated threat to the life or freedom of the alien if returned home).

These provisions are effective on the date CEIRA is enacted and is retroactive for all aliens ever subject to removal, deportation or exclusion and is applicable to all acts and conditions constituting a ground of inadmissibility, excludability, deportation or removal occurring before, on, or after CEIRA’s effective date.

Section 241(a), which calls for the removal within 90 days of aliens subject to a final order of removal, is amended to state that if a court orders a stay of removal of an alien subject to a final order of removal, DHS has the discretion to detain the alien during the stay.

The bill expands the authority of DHS to detain dangerous aliens for longer than 90 days before removal. This section takes effect immediately and is retroactive.

Section 203 – Increased Criminal Penalties for Alien Smuggling, Document Fraud, Gang Violence and Drug Trafficking

The mandated sentences for alien smuggling and harboring are increased by from five to twenty years, depending on the particular offense described in Section 274(a) of the INA.

The penalties for document fraud under 18 USC 1546 are increased.

A new section of the US Code is to be added calling for increased criminal penalties for certain offenses when an alien is unlawfully present in the US. The crimes included in this section including drug trafficking and crimes of violence. Affected persons are subject to fines and a minimum five-year prison sentence. Aliens previously ordered removed for having committed a crime shall be sentenced to at least fifteen years. A sentence imposed under this section may run consecutively with a sentence imposed for any other crime.

A new ground of inadmissibility is added to Section 212(a)(2) of the INA for aliens who are members of criminal street gangs (defined under 18 USC 521(a)). Members of criminal street gangs are also barred from temporary protected status.

Section 204 – Penalty for countries that do not accept return of nationals

The Secretary of Homeland Security, after consulting the Secretary of State, has the authority to deny admission to all citizens of a country that has denied or unreasonably delayed accepting one of its citizens or resident after that alien has been ordered removed until the country accepts the alien.

Section 205 – No judicial review of visa revocation

Under current Section 221(i) of the INA, the State Department’s revocation of a visa cannot be reviewed by a court except in the context of a removal proceeding. That ground for barring the revocation of a visa is removed under CEIRA.

Section 206 – Alternatives to Detention

DHS shall implement pilot programs in all states to study the effectiveness of alternatives to detention (such as electronic monitoring devices and intensive supervision programs).

Section 207 – Removal of aliens

DHS shall continue to operate the Institutional Removal Program, which is designed to identify removable criminal aliens imprisoned in the US, to prevent their release into the community and to remove them from the US after completion of their sentences. The IRP is to be expanded to all states and all states are required to cooperate with officials of the IRP.

Local and state law enforcement officials are authorized to hold illegal aliens for up to 14 days after an alien has completed a prison sentence in order to effectuate the transfer of the alien to Federal custody. Such officials are also authorized to issue a detainer for the alien to be detained by a state prison until ICE can take the alien into custody.

Technology such as videoconferencing should be used to make it possible to extend IRP to remote locations. And mobile access to Federal databases of aliens shall be made available to state and local law enforcement agencies. A report from DHS to Congress must be prepared on the expansion of IRP. Funding of $30,000,000 increasing to $70,000,000 shall be made available over a five-year period to implement this section.

Section 208 – Additional Immigration Personnel

An additional 200 personnel will be hired by DHS to investigate alien smuggling and immigration status violations.

For each of years, DHS shall increase the number of immigration trial attorneys by not less than 100% of the current authorization. Funds are authorized for the additional costs of this expansion.

The Department of Justice is create an Assistant Attorney General for Immigration Enforcement which shall coordinate and prioritize immigration litigation and enforcement in the Federal Courts including removal and deportation, employer sanctions and alien smuggling and human trafficking.

At least 50 attorneys are to be hired by the Attorney General for the Office of Immigration Litigation in each of the next five years.

The Attorney General shall increase by not less than 50 per year for five years the number of attorneys in the US Attorneys’ office to litigate immigration cases in the Federal Courts.

For the next five years, the Attorney General shall increase the number of immigration judges by 50 per year.

The necessary funds for the Attorney General to implement this section are appropriated.

Section 209 – Completion of Background and Security Checks

DHS, DOJ or any court may not grant adjustment of status to permanent residence, grant any other relief or protection from removal or any other benefit under immigration law or issue any related documentation without completing the required background checks.

Section 210 – Denial of Benefits to Terrorists and Criminals

A new section 362 is added to the INA that states that any agency granting immigration benefits need not grant such benefit to any alien to whom a criminal or other investigation or case is pending that is material to the alien’s eligibility to remain in the US.

211 – Reinstatement of Previous Removal Orders

Section 241(a)(5) of the INA is amended to state that an alien who applies for admission who has been excluded, deported or removed after September 30, 1996 shall be removed and does not require a proceeding before an immigration judge. The prior order shall apply. The only immigration benefit open to an alien covered under this section is a claim under the UN Convention Against Torture. The provision applies as if enacted on March 1, 2003.

Section 212 – Automated Alien Records

Within five years of enactment of CEIRA, DHS must automate the storage of alien records digitally in a system that integrates with the record keeping systems of the Justice Department and which is accessible by other federal agencies.

DHS will also “automate” all records that were created during the five-year period preceding enactment of CEIRA.

DHS must issue a progress report to Congress between 2008 and 2010 on the progress made in automating records.

$10,000,000 is authorized per year for five years to carry out the automation project.

Subtitle B – State and Local Law Enforcement

Section 221 – Immigration Law Enforcement by States and Political Subdivisions of States

State and local law enforcement officials have the inherent authority to investigate, identify, apprehend, arrest, detain, or transfer to Federal custody aliens for the purpose of assisting in enforcing immigration laws in the normal course of carrying out the law enforcement duties of such personnel.

Section 222 – State and local law enforcement provision of information regarding aliens

Statutes, policies and practices that prohibit state and local law enforcement officials from enforcing immigration laws, assisting federal immigration law enforcement officials carrying out their duties or providing information to federal officials regarding the immigration status of an individual believed to be illegally in the US is a violation of the 1996 Immigration Act and the 1996 Welfare Act.

State and local authorities are directed to provide DHS information on apprehended or arrested aliens believed to be in violation of immigration laws regardless of why the person was arrested. The following information regarding the alien must be provided within 10 days after arrest:

name

address

physical description

date, time and location of the encounter with the alien and the reason for the apprehension

driver’s license number

type and number of any other identification document issued to the alien

the license number, make and model of the car driven by the alien

a photo of the alien

fingerprints

DHS must reimburse state and local law enforcement officials for reasonable costs incurred as a result of providing this information. Necessary funds to carry out the provisions of this section are authorized to be appropriated.

Section 223 – Listing of Immigration Violators in the National Crime Information Center Database

Within six months of the enactment of CEIRA, the Undersecretary for Border and Transportation Security of DHS shall provide the National Crime Information Center of the Justice Department with information relating to aliens subject to final removal orders, aliens subject to voluntary departure agreements that have become invalid and aliens who have had their visas revoked.

If a person is granted cancellation of removal or granted permission to legally enter the US after a voluntary departure, information entered in the National Crime Information Center shall be promptly removed.

Section 224 – Increase of federal detention space and the utilization of facilities identified for closures as a result of the Defense Base Closure Realignment Act of 1990.

DHS shall construct or buy additional detention facilities in the US. DHS shall, to the maximum extent practical, request the transfer of appropriate portions of military installations approved for closure under the Defense Base Closure Realignment Act of 1990. Necessary funds to carry out this section are authorized.

Section 225 – Federal custody of illegal aliens apprehended by state or local law enforcement.

A new section 240D is to be added to the INA. It states that if a state or local law enforcement official requests DHS to take an alien into its custody, DHS shall have up to 72 hours to take custody of the alien or request that the state or local law enforcement agency temporarily detain or transport the alien to a location for transfer to federal custody.

DHS shall designate at least one federal, state or local prison or jail in each state as the central facility for that state to transfer custody of criminal or illegal aliens. DHS is required to reimburse state and local agencies for the costs of carrying out this section. The costs will be based on the average daily incarceration costs of a prisoner in the affected state plus the cost of transporting the alien to the detention facility.

DHS is required to ensure that incarcerated illegal aliens are held in facilities with an appropriate level of security.

DHS officials are required to regularly visit local areas to enable the prompt transfer of apprehended illegal aliens from state to federal custody. The federal government may contract with private companies to carry out this section of the law.

The term “illegal alien” is defined in this section and includes people who entered without inspection, people who entered on nonimmigrant visas and failed to maintain status, people admitted as immigrants who failed to comply with immigration law and people who fail to depart the US under a voluntary departure agreement or final order of removal.

Section 226 – Immunity

State and local law enforcement officers are immune from personal liability arising out of the enforcement of any immigration law if the officer is acting within the scope of the officer’s official duties. The immunity also covers claims based on civil rights laws except if the officer violates federal, state, or local criminal laws in the course of enforcing such immigration law.

Section 227 – State Criminal Assistance Program

Funding is authorized to carry out Section 241(i)(5) which allows state and local governments to request reimbursement for incarcerating criminal aliens. Appropriations for five years are authorized starting at $750,000,000 and rising to $950,000,000.

DHS shall also now reimburse state and local governments for other costs associated with processing illegal aliens through the criminal justice system including indigent defense, criminal prosecution, autopsies, translators and interpreters and court costs. Five years of funding at $400,000,000 per year are authorized for appropriation to fund reimbursements.

Section 228 – Construction

CEIRA does NOT require state or local agencies to report the identity of crime victims and witnesses or arrest such victims or witnesses. CEIRA is also not intended to require state and local agencies to enforce immigration laws of the US.

Section 229 – State Defined

The term “State” in CEIRA means the 50 states plus Washington, D.C., Guam, the US Virgin Islands and Puerto Rico.

TITLE III – WORKSITE ENFORCEMENT AND EMPLOYMENT VERIFICATION SYSTEM

Subtitle A – Increased Enforcement Resources and Penalties

Section 301 – Additional Worksite Enforcement and Fraud Detection Agents

DHS shall add annually for five years at least 2,000 positions for investigators dedicated to enforce alien smuggling and harboring provisions of the INA (Section 241) and worksite enforcement and employment verification provisions of the INA (Section 241A).

DHS has five years to increase by at least 1000 the number of positions for Immigration Enforcement Agents dedicated to immigration fraud detection.

Funding to carry out these two provisions is authorized to be appropriated for the five years following passage of CEIRA.

Section 302 – Penalties for unauthorized employment and false claims of citizenship

The provision adds a fine of up to $5000 and a term of imprisonment of up to three years for persons making false claims to US citizenship in order to gain employment.

The fines for employers for hiring, recruiting and referral violations are doubled.

Section 303 – Penalties for misusing Social Security numbers or filing false information with Social Security Administration

Adds penalties for selling one’s Social Security number or assisting (directly or by failing to act) one in acquiring a Social Security number (whether real or fake). Provisions are also added penalizing government employees who possess Social Security numbers and willfully acts or fails to act so as to cause a violation of the rules prohibiting the false use of a Social Security number. The provisions in this section are not retroactive.

The IRS Commissioner and the Commissioner of Social Security shall submit an annual report to Congress on efforts taken to identify and enforce penalties against employers that file incorrect information returns.

Subtitle B – Integrated Document Integrity

Section 311 – Social Security Cards

Within three months of passing CEIRA, the Commissioner of Social Security shall begin work to administer and issue machine-readable, tamper-resistant Social Security Cards. Within a year of enactment of CEIRA, all cards must meet this requirement. The necessary funds to meet this requirement are authorized to be appropriated.

Replacement cards will not be issued unless the SSA determines that the purpose of the replacement is legitimate. This provision takes effect one year after enactment of CEIRA.

Within six months of enactment of CEIRA, DHS and SSA must submit a report to Congress on the viability of biometric authentication through employment authorization documents.

Section 312 – Birth Certificates

This section sets new requirements for the acceptance by federal agencies of a state-issued birth certificate. States must certify to DHS that it is meeting specific minimum document standards.

Birth certificates must be printed on safety paper, include the seal of the issuing agency, and have other features to prevent tampering, counterfeiting, or otherwise duplicating the birth certificate for fraudulent purposes. DHS may not require adherence to a single design.

DHS, in consultation with HHS and SSA, shall develop an electronic system for issuing and tracking birth certificates so that those entities requiring such documents can quickly confirm their validity.

Before issuing authenticated copies of birth certificates, a state must verify

the name of the child that will appear on the birth certificate

the date and location of the child’s birth

the maiden name of the child’s mother and

substantial proof of the requestor’s identity

Only people with legal authorization may request a birth certificate for someone not named on the birth certificate.

Within a year of passage of CEIRA, DHS, consulting with HHS and the states, shall set minimum standards for issuing birth certificates to specific family members, their representatives and others who prove the certificate is needed for the protection of the requestor’s personal or property rights. A state may waive these requirements in exceptional circumstances such as the incapacitation of the registrant.

States shall employ third party verification, or equivalent verification, of the identity of the requestor for applications by electronic means, through the mail or phone or fax.

States must verify documents used to provide proof of identity of the requestor.

These provisions shall take effect on May 11, 2008. They shall also apply to local government agencies that issue birth certificates.

States must also establish minimum building security standards to protect birth certificate records and supplies. Privacy standards must be implemented by the states for birth certificates. People with access to vital records must receive appropriate security clearances. Fraud recognition training programs must be established. Internal operating system standards for paper and for electronic systems must be implemented. A central database to connect to other states and federal agencies must be established. Birth and death records must be matched in a comprehensive and timely manner. And states shall cooperate with DHS in the implementation of electronic verification of vital events.

For applications for Social Security numbers (other than numbers issued at birth), SSA shall require verification of any birth record provided by the applicant in support of the application. This provision takes effect 180 days after enactment of CEIRA.

SSA, in consultation with HHS, shall work with states to establish a “common data set and common exchange protocol” for electronic birth registration systems and death registration systems. Fraud prevention must be built into the system and printed birth certificate abstracts must have a common format. SSA must submit a report to Congress within six months of CEIRA passing informing Congress on whether there is a need for federal laws to address penalties for fraud and misuse of vital records.

Within a year, SSA must set up a process with the Defense Department to share data regarding deaths of US military personnel and the birth and death of their dependents. A similar process must be established with the State Department regarding births and deaths of US citizens born abroad.

Within three years of the establishment of databases covered in this section, states must record and retain electronic records of “pertinent identification information” from requestors who are not the registrants.

DHS will lead the implementation of electronic verification of a person’s birth and death. DHS shall issue regulations to set up a means by which federal and state agencies will use a single system to make inquiries regarding vital records in all participating jurisdictions. The regulations will take effect within five years of enactment of CEIRA.

DHS may make grants to state and local governments to assist in conforming to the minimum standards set forth in this section. Five years of funding for this program are approved for appropriation.

DHS has the authority to extend deadlines for states when a state provides adequate justification for noncompliance.

This section replaces the birth certificate provisions contained in Section 7211 of the Intelligence Reform and Terrorism Prevention Act of 2004.

Subtitle C – Mandatory Electronic Employment Verification of All Workers in the United States

Section 321 – Employment Eligibility Verification Program

The employment verification basic pilot program is renamed the Employment Eligibility Verification System.

Data in the EEVS is confidential and cannot be accessed by government officials except those responsible for enforcing immigration laws. And information in the database is required to be protected against unauthorized disclosure for other purposes.

SSA is required to identify the sources of false, incorrect, or expired Social Security numbers and take steps to eliminate such numbers from the system. Within six months of CEIRA’s enactment, SSA must submit a report to Congress on its findings and actions and how it will remove all of these numbers within a year of the report being submitted.

Employers have up to twelve months after passage of CEIRA to participate in the EEVS. Employers using EEVS may complete employment verification electronically.

Necessary funding for the program is authorized in this section.

Subtitle D – Reduction in Employer Burdens

Section 331 – Reduction in Documents that Establish Identity and Employment Authorization

Current Section 274A allows a worker to present a Social Security card or any other document permitted by the Attorney General to demonstrate employment authorization. CEIRA states that only the Social Security card is acceptable.

CEIRA also only permits workers to prove identity by showing a federal document with a biometric identifier or a driver’s license compliant with the REAL ID Act or 2005.

This section is to take effect on May 11, 2008.

Section 332 – Good Faith Compliance

Employers complying with EEVS shall have an affirmative good faith compliance defense that it is not liable for employment verification violations.

Title IV – REQUIREMENTS FOR PARTICIPATING COUNTRIES

Section 401 – Requirements for Participating Countries

The US will not accept aliens in non-immigrant status or grant deferred mandatory departure status unless the home country of the alien enters into a bilateral agreement with the US that requires the country to accept the return of its nationals within three days of an order of removal. The participating country must also agree to cooperate with the US in identifying, tracking and reducing gang membership, violence and human trafficking and smuggling as well as in controlling illegal immigration.

Participating countries must provide the US with passport information and criminal records of aliens seeking admission or who are present in the US and admission and entry data required under the US’ entry-exit data system.

Participating countries must agree to provide minimum health coverage to its participants. HHS will have three months from the enactment of CEIRA to define the minimum level of health coverage. If the participating country falls below the minimum level defined by HHS, the employer must provide or the alien shall obtain coverage that meets such minimum level.

Participating countries must agree to evaluate ways to provide housing incentives to workers returning home.

TITLE V - NONIMMIGRANT TEMPORARY WORKER PROGRAM

Section 501 – Nonimmigrant Temporary Worker Category

A new “W” non-immigrant visa is created by CEIRA for workers coming temporarily to the US to perform labor or service, other than work which would qualify for H-1B, H-2A, L-1, O-1, or P-1 status.

The H-2B category is repealed.

Section 502 – Temporary Worker Program

A new Section 218A is added to the INA outlining the requirements for the W visa. Note that in this section, workers covered under the R visa category are excluded from the W category in addition to the H, L, O and P categories.

W applicants must meet the following requirements:

the alien must be capable of performing the specific job

the alien must show that he has a job offer from an employer authorized to hire aliens under the “Alien Employment Management Program”

the alien must pay a $500 visa fee in addition to the cost of processing the application. This is separate from consular procedures for charging reciprocal fees

the alien must have a medical examination and verification of immunization status that conforms to generally accepted medical practice standards

DHS must create a W visa application form

DHS must require an alien to provide information concerning the alien’s physical and mental health, criminal history and gang membership, immigration history, involvement with groups or individuals engaged in terrorism and other similar activities, voter registration history, claims to US citizenship and tax history.

DHS may require the worker to sign a waiver agreeing to waive any right to appeal to a court an immigration officer’s decision on admissibility or to contest any removal action (unless in some cases a Convention Against Torture claim is made)

The alien shall require a worker to include a signed certification attesting that the alien understands the form and is telling the truth.

Bars to admissibility under INA Sections 212(a)(5) (barring admission to those seeking to work without a labor certification), 212(a)(6)(A) (aliens present without permission or parole), 212(a)(7) (the alien lacks a valid and unexpired immigration document), 212(a)(9)(B) and (C) the three and ten year overstay reentry bars) may be waived by DHS for conduct that occurred before CEIRA’s effective date. Criminal and security bars are not affected by this section. Other bars for conduct occurring before CEIRA’s effective date may be waived by DHS for humanitarian purposes, to ensure family unity, or when such waiver is otherwise in the public interest.

Aliens seeking a waiver under this section shall pay a $500 fee upon approval of the W visa.

W status holders seeking renewal or subsequent admission in the W category need to re-establish that they are admissible.

W workers shall not be issued a visa or admitted to the US until all required background checks have been completed and all W visa applicants must be interviewed by a consular officer.

W status holders are not eligible to change to another non-immigrant classification within the US.

W non-immigrants are admitted for up to two years and may not be extended. Once an applicant has returned home resided continuously in the alien’s home country for one year, the alien will be eligible for another two-year period. The total period that can be spent in W status is six years.

The time limits don’t apply to workers who enter for less than six months a year and those aliens commuting in to the US.

CEIRA creates a new status called Deferred Mandatory Departure. The rules for DMD are outlined in a Title VI, but the concept is mentioned in this section because eligible W status time is affected by time spent in DMD status. An alien granted DMD status that remains in the US in DMD status for

Two years may get W status for no more than five years;

Three years may get W status for no more than four years;

Four years may get W status for no more three years;

Five years may get W status for no more two years;

A W non-immigrant must maintain a residence in a foreign country which the alien has no intention of abandoning and must be present in the home country for at least seven consecutive days during each year of W non-immigrant status.

The W non-immigrant status document must be machine-readable, tamper-resistant and allow for biometric authentication. The document will be used for travel, entry and evidence of work authorization.

An alien who fails to leave the US within 10 days of the end of the alien’s W status is barred from receiving any immigration benefit (except for certain claims under the Convention Against Torture or certain asylum claims).

Aliens who enter the US without inspection after the enactment of CEIRA or violates a term or condition of admission into the US as a non-immigrant, including overstaying the period of authorized admission, shall be ineligible for a W visa or Deferred Mandatory Departure for ten years.

CEIRA establishes a Temporary Worker Task Force to study the impact of the admission of W non-immigrants on the wages, working conditions and employment of US workers. The Task Force is also charged with making recommendations to the Department of Labor regarding the need for an annual numerical limit on the number of W workers admitted. The Task Force will have ten members (a chair appointed by the President, a vice-chair appointed by the Senate Minority Leader, two appointed by the majority leader of the Senate, two appointed, two appointed by the minority leader of the Senate, two appointed by the Speaker of the House and two appointed by the minority leader in the House. Task Force members should have expertise in areas like economics, demography, labor, business, immigration or other relevant areas and also represent a “broad cross section of perspectives within the US. No more than five can be from one party and no government employees are allowed on the Task Force. The members shall be appointed no later than six months after the enactment of CEIRA.

The Temporary Worker Task Force must submit a report to Congress within 18 months of the enactment of CEIRA making recommendations on the appropriate numerical limit. The Labor Department may impose a numerical limit on W visa within six months of submission of the report. This limit will not become effective until six months after DOL submits a report to Congress regarding imposing a limit.

Spouses and children of W visa holders may be admitted for periods not more than 30 days. Such stays cannot be extended unless DHS determines that exceptional circumstances exist. The fee for a spouse or child seeking admission is $100 and the money from such fees shall be used by DHS to identify, locate, or remove illegal aliens.

W status holders may travel outside the US and may be readmitted without having to get a new visa. However, time spent outside the US won’t extend the W status period.

W workers may be employed by any US employer authorized by DHS to hire workers under the W visa program.

W workers must be employed while in the US and an worker who fails to be employed for 30 days is ineligible for hire until the worker departs the US and reenters in W status.

DHS will coordinate with SSA to establish a system to grant Social Security numbers to W workers at the time of admission in W status.

There is no judicial review of a denial of a W visa.

Section 503 – Statutory Construction

Nothing in this title is intended to give anyone a right that is legally enforceable against the US government.

Section 504 – Authorization of Appropriations

CEIRA authorizes $500,000,000 to be appropriated for facilities, personnel (including consular officers), training, technology and processing necessary to implement this section.

TITLE VI – MANDATORY DEPARTURE AND REENTRY IN LEGAL STATUS

Section 601 – Mandatory departure and reentry in legal status

A new section 218B is added to the INA.

DHS may grant “Deferred Mandatory Departure” status to aliens that have been physically present in the US for one year prior to the enactment of CEIRA and has been continuously in the US since that date. The alien must not be legally present in the US on that date.

The alien must show that he was employed in the US prior to the date of the INTRODUCTION of CEIRA and has been employed since that date.

The alien must be admissible to the US and not assisted in any persecution.

Inadmissibility grounds relating to filing a labor certification, being present illegally in the US without permission or parole and lacking proper immigration documentation are not applicable in the DMD context. Other grounds of inadmissibility can be waived for humanitarian, family unity or public interest reasons.

Aliens are ineligible for DMD if they are subject to a final order of removal, is in removal proceedings, reside in a country that supports terrorism, or fails to comply with any request for information from DHS.

Applicants for DMD may be required to undergo a medical examination

DHS may terminate an alien’s DMD status if DHS determines that the alien was not actually eligible for DMD status or the alien commits an act that makes the alien removable from the US.

DHS is required to create a DMD application form. DHS is required to ask the alien questions regarding the alien’s physical and mental health, criminal history and gang membership, immigration history, involvement with groups or individuals involved in terrorism or similar acts, voter registration history, claims to US citizenship and tax history.

The DMD applicant is required to waive any right to waive any right to appeal an immigration officer’s decision on eligibility or to contest any removal action (other than in some cases based on the Convention Against Torture).

DHS is required to ensure that the DMD application process is secure and incorporates anti-fraud protection. An interview is required and DHS will utilize biometric authentication at the time of document issuance.

DMD applications will begin accepted no later than three months after CEIRA is enacted.

An alien must submit a DMD application no later than six months after the enactment of CEIRA. People failing to file in time are ineligible for DMD status.

DHS is required to process all DMD applications no later than 12 months after enactment of CEIRA.

DMD status may not be granted until all required background checks are completed to the satisfaction of DHS.

DMD applicants must submit an acknowledgment that they are unlawfully present in the US and are subject to removal or deportation and that the applicant understands the terms of DMD. DMD applicants must surrender any Social Security account number or card used by the applicant and any other false or fraudulent documents in the alien’s possession.

DMD may be granted for a period of up to five years. A person granted DMD must depart prior to the expiration of the DMD period and register with DHS at the time of departure and surrender any evidence of DMD status at the time of departure.

Aliens who comply with DMD are not subject to the reentry bars and may immediately seek admission as an immigrant or non-immigrant.

Aliens failing to depart on time are subject to a ten-year bar on receiving any immigration benefit (except for certain claims under the Convention Against Torture Act). Aliens failing to timely depart are also subject to fines as follows:

No fine if the alien departs in the first year after DMD is granted;

$2000 if the alien does not depart within the second year

$3000 if the alien does not depart within the third year,

$4000 if the alien does not depart in the fourth year, and

$5000 if the alien does not depart in the fifth year

DMD status will include a machine-readable, tamper-resistant document and will serve as a travel, entry and work authorization during its validity period.

People granted DMD may travel outside the US and may be readmitted if the period of DMD has not expired and the applicant is not barred for readmission. Time spent outside the US won’t extend the validity of the DMD period.

Aliens in the US in DMD status will be considered to be permanently residing in the US “under the color of law” and shall be treated as a non-immigrant

DMD aliens are not eligible for any public assistance

DMD aliens are prohibited from changing status or adjusting status (unless eligible under 245(i)

The application fee for DMD status is $1000. The funds will be used by DHS to identify, locate, or remove illegal aliens

Spouses and children of people granted DMD are entitled to the same status, but are not authorized to work; the application fee for a family member is $500

DMD holders are authorized to work for employers authorized by DHS to hire DMD holders; DMD holders are expected to be employed while in the US and if they are not employed for 30 days, the DMD holder must leave the US and cannot reenter without having a job lined up; DHS has sole unreviewable discretion to reauthorize an alien for employment without requiring departure.

HDS and SSA must set up a system to issue and keep track of Social Security numbers for DMD holders

CEIRA creates criminal penalties (up to five years imprisonment) for DMD holders who make false statements in a DMD application; persons convicted under this section are barred from admission under INA Section 212(a)(6)(C)(i)

Time spent in DMD status will not count toward cancellation of removal unless DHS determines that extreme hardship exists

DMD applicants must waive any right to contest (other than through the Convention Against Torture) any action for deportation or removal that is instituted subsequent to a grant of DMD status.

DMD status is to be determined in the sole discretion of DHS and is not reviewable by a court

Section 602 – Statutory Construction

Nothing in this title is intended to give anyone a right that is legally enforceable against the US government.

Section 603 – Authorization of Appropriations

CEIRA authorizes $1,000,000,000 to be appropriated for facilities, personnel (including consular officers), training, technology and processing necessary to implement this section.

TITLE VII – ALIEN EMPLOYMENT MANAGEMENT SYSTEM

Section 701 – Alien Employment Management System

CEIRA creates a new Section 218C to the INA that establishes, under the direction of DHS (consulting with DOL, DOS and SSA), a program to authorize, manage and track the employment of aliens under the W visa and DMD programs. This program needs to be in place before anyone is granted W or DMD status.

The management system shall enable employers interested in hiring aliens under the W and DMD programs to become authorized to hire such workers.

The management system should be able to integrate with the SSA database and the EEVP system described in Title III.

Employers in the management system must use readers or scanners to transmit biometric and biographic information contained in the alien’s evidence of status to the DHS.

DHS must collect information from employers to identify whether an alien in W or DMD status is employed, the employer is authorized in the management system, the number of workers an employer is authorized to hire under the W and DMD programs and the occupation, industry and length of time a W or DMD worker has been employed in the US.

Employers who employ W or DMD workers without authorization are subject to the same penalties as employers who violate the employer sanctions provisions in INA Section 274(a)(1)(A) or (a)(2). An employer must show it is a legitimate company and that will comply with the terms of the program. Employers can hire multiple workers, but need to request authorization to hire multiple aliens. Employers can file applications to participate in the program electronically.

Employers must notify DHS within three business days when an alien’s employment is terminated. An employer cannot fill the position with another W or DMD worker until the employer until such notification is given.

Employers must show US workers are being protected and need to submit an attestation stating the following:

The employer has posted the position in a national electronic job registry maintained by DOL for at least 30 days.

The employer has offered the job to any US worker who applies and is equally or better qualified for the job for which a temporary worker is sought and who will be available at the time and place of need. Employers need to maintain records for a year documenting this.

The employer will comply with the terms of the program.

The employer shall not hire more aliens than authorized by DHS.

The worker will be paid the greater of the federal minimum wage or the sate minimum wage. Payroll records must be maintained accurately.

The employment of a temporary worker shall not adversely affect the working conditions of other similarly employed US workers.

Once an employer shows there are no US workers as described above, DHS may approve the application for the number of temporary workers that DHS determines is required by the employer. The approval shall be valid for a two-year period.

Section 702 – Labor Investigations

DHS and DOL shall conduct audits, including random audits, of employers hiring W and DMD workers.

Employers who violate the rules of the program may be debarred from hiring W and DMD workers.

TITLE VIII – PROTECTION AGAINST IMMIGRATION FRAUD

Section 801 – Grants to Support Public Education and Training

Grants will be authorized to provide qualified non-profit community organizations to educate, train and support the agencies, immigrant communities and other interested agencies regarding CEIRA. The money may be used to fund public education, training, technical assistance, government liaison and all related costs incurred by the organizations in providing services related to CEIRA. Funding can also be used to provide authorized legal representation by accredited representatives and to educate the public on the danger of using non-lawyers not authorized by DHS.

$40,000,000 per year for three years are authorized to fund the grant program. DHS will consider geographic and ethnic diversity when prioritizing where grant funds go.

TITLE IX – CIRCULAR MIGRATION

Section 901 – Investment Accounts

This section authorizes the creation of a Temporary Worker Investment Fund (TWIF) for the deposit of W workers’ Social Security taxes. The TWIF will fund Temporary Worker Investment Accounts (TWIAs). TWIAs will be created for each W worker within 10 days of the employer submitting a W-4 identifying the worker. The account shall take effect for the first pay period beginning more than 14 days after the establishment of the account.

The worker is the sole owner of the account. Contributions to the account will be noted on the worker’s W-2 statement and an annual report will be provided to the worker with details on the account. An annual administrative fee of .3% will be charged to the worker’s account.

The money in the TWIA will only be distributed to the worker after the worker departs the US and abandons W visa status. If the worker dies before this time, the money will be distributed based on rule DHS will establish.

TITLE X _ BACKLOG REDUCTION

Section 1001 – Employment-Based Immigrants

The worldwide level of employment-based immigrants is modified to now include unused visa numbers for 2001 through 2005 as well as including leftover visas from future years (limited to a one year rolling forward).

The DV lottery program is terminated effective October 1^st in the year following enactment of CEIRA

An Immigration Task Force is to be created to study backlog problems at USCIS, the impact of the immigration of workers to the US and to family unity and to provide Congress any recommendations regarding increasing the number of immigrant visas issued by the US for family members and on the basis of employment. The makeup of the Task Force shall be according to a formula similar to the Task Force described in Section 502 of CEIRA regarding the number of W visas. The Task Force must be set up within six months and shall meet as soon as practicable after that. A report shall be issued to Congress with the Task Force’s findings within 18 months of enactment of CEIRA.

Section 1002 – Country Limits

The per country quotas for family cases are changed from 7% to 10% for a single foreign state and from 2% to 5% for a dependent area.

The provisions from AC21 regarding the limitations on per country ceilings for employment-based immigrants are repealed. Those provisions are now contained in Section 202(a)(5) of the INA.

Section 1003 – Allocation of Immigrant Visas

CEIRA makes changes in the allocation of employment-based green cards. The changes are as follows:

in the EB-1 category, the limit is reduced from 28.6% to 10% of the worldwide level

in the EB-2 category, the limit is reduced from 28.6% to 10% of the worldwide level

in the EB-3 category, the limit is increased from 28.6% to 35%

the quota for the EB-4 category is eliminated (this category includes religious workers)

the EB-5 immigrant investor category is redesignated as EB-4 and is reduced from 7.1% to 4%

the quota for the EB-3 other workers category

36% of EB visas shall be reserved for workers not in EB-1 through EB-4 (as redesignated) and who are “capable … of performing unskilled labor that is not of a temporary or seasonal nature, for which qualified workers are determined to be unavailable in the United States.

INA Section 203(b)(6) is repealed. The provision calls for green cards issued mainly to veterans of the US military to be subtracted from employment-based green card numbers.

The temporary reduction in the EB-3 other workers category of up to 5,000 per year called for under NACARA is repealed.

TITLE XI – TEMPORARY AGRICULTURAL WORKERS

Section 1101 – Sense of the Senate on Temporary Agricultural Workers

It is the sense of the Senate that consideration of any comprehensive immigration reform taken up in this session of Congress will include agricultural workers.

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