Summary of STRIVE – THE SECURITY THROUGH REGULARIZED IMMIGRATION AND A VIBRANT ECONOMY ACT OF 2007 (the House Comprehensive Immigration Reform Bill)
Summary of key provisions prepared by Greg Siskind ([email protected] , www.visalaw.com, 901-682-6455). Greg Siskind is a partner at the immigration law firm Siskind, Susser, P.C.
On March 22, 2007, Congressman Luis Gutierrez (D-IL) and Jeff Flake (R-AZ) introduced the House’ s comprehensive immigration reform bill for 2007.
This is a summary of the provisions of this 697 page bill. The light blue highlights show differences from S.2611, the bill the Senate passed last year and which is likely to be introduced again shortly.
_______ = changes from S.2611, the Senate comprehensive immigration reform bill passed in 2006.
Section by Section Summary of the STRIVE Act of 2007
Sec. 1. Short title; table of contents.
The title of the bill is Security Through Regularized Immigration and a Vibrant Economy Act of 2007.
Sec. 2. Reference to the Immigration and Nationality Act.
References to amendments or appeals are referring to the Immigration and Nationality Act.
Sec. 3. Definitions.
“Department” means Department of Homeland Security. “Secretary” means Secretary of Homeland Security.
Sec. 4. Severability.
If any part of the bill is invalidated, the rest of the bill is unaffected.
Sec. 5. Certification requirements prior to implementation of the New Worker Program and the conditional nonimmigrant classification.
This is a new “triggers” section which bars DHS from implementing either the new guest
worker or conditional non-immigrant worker (part of the legalization program) provisions
until the following conditions are met:
1. Secure Border. DHS submits a report on the status of implementation of the border
surveillance technology improvements called for in the Secure Border Initiative including
target dates for completing them.
2. Secure Documents. The systems and infrastructure needed to make improvements to immigration documents that will be issued under the new guest worker and conditional
non-immigrant programs have been developed, tested and are ready for use. Infrastructure
needed for FBI security checks must be in place.
3. Electronic Employment Eligibility Verification System. The first phase of the new
system (applicable to critical infrastructure employers) has been implemented
TITLE I—BORDER ENFORCEMENT
Subtitle A—Assets for Controlling United States Borders
Sec. 101. Enforcement personnel.
Over five year period, increases port of entry inspectors by 500. Authorizes appropriations for this.
Increase in Border Patrol numbers as follows:
2008 – 2,000 2009 – 2,400 2010 – 2,400 2011 – 2,400 2012 – 2,400
This is one year less than S.2611.
20% of the net increase shall be assigned to the US-Canada border.
Number of ICE investigators to increase by 1000 instead of the 800 called for in 2004 law.
200 additional personnel to investigate alien smuggling.
50 additional US Marshalls.
Establishment of program to recruit former military personnel to CBP.
Sec. 102. Technological assets.
Requires issuance of a report to be issued on the use of Defense Department equipment. The report should assess the risks to US citizens associated with using the equipment. Also, the use of Defense Department equipment authorized in Section 102 does not alter the prohibition on using the Army or Air Force for border patrol work.
Sec. 103. Infrastructure.
DHS shall build all-weather roads and buy vehicle barriers and facilities needed to get operational control over the borders.
Sec. 104. Ports of entry.
Authorization to build additional ports of entry.
Sec. 105. Secure communication.
DHS must develop a plan to use satellites and other technologies to improve two-way communications between officials of all border security officials and agencies.
Sec. 106. Unmanned aerial vehicles.
DHS shall acquire unmanned aerial vehicles and related equipment. Authorizes appropriations.
Sec. 107. Surveillance technologies programs.
DHS must develop “Integrated and Automated Surveillance Program” and issue report within a year.
Subtitle B—Border Security Plans, Strategies, and Reports Sec. 111. Surveillance plan.
DHS shall develop comprehensive plan for surveillance of land and maritime borders.
Sec. 112. National Strategy for Border Security.
DHS shall develop a National Strategy for Border Security that describes actions to be carried out to achieve operational control over all ports of entry into the US and the land and maritime borders.
Sec. 113. Reports on improving the exchange of information on North American security.
Within a year, Secretary of State, in consultation with DHS and other agencies, shall issue a report on improving inter-agency communication.
Sec. 114. Border Patrol training capacity review.
Comptroller General of the US shall conduct a review of the training of Border Patrol agents to ensure such training is provided efficiently and effectively.
Sec. 115. Secure Border Initiative financial accountability.
The Inspector General of DHS shall conduct oversight of all Secure Border Initiative contracts worth more than $20,000,000.
Subtitle C—Southern Border Security
Sec. 121. Improving the security of Mexico’s southern border.
The Secretary of State shall work with her counterparts in Canada and Mexico to assess the needs of Central American countries in securing their borders and to assist those countries with such security. DOS, DHS and the FBI are to set up a program to track Central American gang members.
Sec. 122. Report on deaths at the United States-Mexico border.
Requires CBP to collect data on the causes of death and the total number of deaths. A report must be produced annually on this that analyzes trends and recommends actions.
Sec. 123. Cooperation with the Government of Mexico.
Requires the State Department and local, state and federal law enforcement officials to cooperate with the Mexican government to improve border security, reduce human trafficking, reduce drug smuggling, reduce gang membership, reduce violence against women and reduce other criminal activity. US officials are also to work with the Mexican government to help educate people on the new immigration laws and to work to encourage circular migration. US officials are also to consult with Mexican government officials on fencing and border security structures. An annual report on this section must be submitted to Congress.
Sec. 124. Temporary National Guard support for securing the southern land border of the United States.
Governors may authorize National Guard troops to train and provide specifically listed activities at the border for up to 21 days per year. DHS shall coordinate.
Sec. 125. United States-Mexico Border Enforcement Review Commission.
A new independent bipartisan commission called the US-Mexico Border Enforcement Review Commission shall be set up to study overall enforcement and detention strategies, programs and policies of federal agencies along the US-Mexico border and make recommendations to Congress. The USMBERC is to issue a report within two years.
Subtitle D—Secure Entry Initiatives Sec. 131. Biometric data enhancements.
This section requires DHS to integrate biometric databases by December 31, 2008.
Sec. 132. US–VISIT System.
Mandates DHS submit a timeline for the extension of the US-VISIT exit-entry system to all ports of entry.
Sec. 133. Document fraud detection.
DHS will provide CBP officers with training in identifying and detecting fraudulent travel documents. Inspector General shall conduct an independent assessment of the Forensic Document Laboratory.
Sec. 134. Improved document integrity.
All immigration-status documents, other than interim documents, issued by DHS must be machine-readable, tamper resistant and incorporate biometrics by December 31, 2008.
Sec. 135. Biometric entry-exit system.
Permanent residents would now be required to provide biometrics upon entry and exit from the US just like non-immigrants. Failure to comply will be a new ground for inadmissibility.
Sec. 136. Evasion of inspection or violation of arrival, reporting, entry, or clearance requirements.
Subjects people who attempt to elude or fail to obey a command to stop issued by a US official at a port of entry or checkpoint to prison terms of three to ten years depending on whether violence is used or not.
Subtitle E—Law Enforcement Relief for States
Sec. 141. Border relief grant program.
DHS authorized to issue grants to local law enforcement agencies near the border to combat crime.
Sec. 142. Northern and southern border prosecution initiative.
DOJ may reimburse local prosecutors for taking on drug-related cases.
Subtitle F—Rapid Response Measures
Sec. 151. Deployment of Border Patrol agents.
Allows border state governors to declare an emergency in
order to request up to 1,000 additional border patrol agents. border state governors to declare an emergency in
order to request up to 1,000 additional border patrol agents.
Sec. 152. Border Patrol major assets.
Requires that the Border Patrol have control over all assets used in carrying out its mission. Calls for increasing assets like helicopters, power boats and motor vehicles for Border Patrol agents.
Sec. 153. Electronic equipment.
Section 163 calls on adding new electronic equipment such as computers, radio and communications equipment, GPS devices and night vision equipment.
Sec. 154. Personal equipment.
Calls for issuing border patrol agents with body armor, reliable weapons and adequate uniforms.
Sec. 155. Authorization of appropriations.
Authorizes appropriations under this Subtitle from FY 2008 through FY 2012.
Subtitle G—Border Infrastructure and Technology Modernization Sec. 161. Definitions.
Definitions of “Commissioner” of Commissioner of CBP, “northern border” and “southern border.”
Sec. 162. Port of Entry Infrastructure Assessment Study.
Calls for the Administrator of General Services to annually update a Port of Entry Infrastructure Assessment Study prepared by BP. The report will cover port of entry infrastructure and technology improvement projects and projects identified in a National Land Border Security Plan (the NLBSP). The NLBSP shall include a vulnerability assessment for each port of entry at both borders. DHS will also establish one or more port security coordinators at each border.
Sec. 163. National Land Border Security Plan.
Within a year, DHS will consult with law enforcement authorities around the country and submit a National Land Border Security Plan to Congress. The plan will review the vulnerabilities of each port of entry on the northern and southern borders. DHS will appoint “port security officers” at each port.
Sec. 164. Expansion of commerce security programs.
Within six months, CBP will develop a plan to expand the programs of the Customs- Trade Partnership Against Terrorism under the SAFE Port Act including adding extra personnel for the programs along the US land borders including the Business Anti-
Smuggling Coalition, the Carrier Initiative Program, the Americas Counter Smuggling Initiative, the Container Security Initiative and the Free and Secure Trade Initiative.
Within six months, CBP shall implement one of these programs previously implemented on the northern border along the southern border. And also within six months, CBP shall set up a demonstration program to develop a cooperative trade security system to improve supply chain security.
Sec. 165. Port of entry technology demonstration program.
DHS will set up a technology testing program to enhance port operations at three to five demonstration sites. Training programs for law enforcement personnel will be conducted at one of the demonstration sites.
Sec. 166. Authorization of appropriations.
Provides for funding to carry out the programs in Subtitle G.
Subtitle H—Safe and Secure Detention Sec. 171. Definitions.
“credible fear of persecution,” “detainee,” “detention facilities,” “reasonable fear of
Sec. 172. Recording secondary inspection interviews.
Sec. 173. Procedures governing detention decisions.
Defines “asylum seeker” means one seeking asylum or withholding of removal or a
person indicating an intention to apply. Does not include denied individuals. Defines
persecution or torture,” “standard,” “vulnerable populations (includes asylees, refugees
and those receiving withholding of deportation, Convention Against Torture applicants
and trafficking victims, VAWA recipients and unaccompanied minors)”.
DHS shall establish quality assurance procedures to ensure the accuracy of sworn
statements taken by DHS officers exercising expedited removal authority. Interviews
shall be taped. Professional interpreters are to be used when the officer is not fluent in the
interviewee’s language.
Allows DHS to release someone on their own recognizance or as part of a new “secure
alternatives program.” Decisions to detain shall be given in writing. Decisions not to
release shall be made within 72 hours of detention. The decision to detain shall be based
on risks to the public, likelihood to appear at a hearing and any other relevant factors. A
detainee may request a re-determination of the detention decision with an immigration judge and all decisions to detain without bond or parole must be reviewed by an
immigration judge within two weeks unless waived by the alien. A hearing may be
requested later if there is a material change in the alien’s situation. Allows release of
certain aliens inadmissible because of criminal activity for humanitarian reasons.
Sec. 174. Legal orientation program.
Sec. 175. Conditions of detention.
If an Immigration Judge’s custody decision is stayed by a DHS officer, the stay will
expire in 30 days unless the BIA issues an order continuing the stay.
DHS and DOJ will establish a legal orientation program for detainees that will be
administered by EOIR. DHS will expand public-private partnerships that seek to offer pro
bono assistance for credible fear screenings (based on the pilot program in Arlington,
VA).
DHS will ensure that detention facilities comply with new standards that will improve
conditions. Standards should ensure detainees are not treated inhumanely or in a
degrading way. Handcuffs, strip searches, shackling and solitary confinement should only
be used if security makes them necessary. Grievance investigation procedures will be
established. Access to phones will be provided and access to lawyers will be facilitated.
To the extent practicable, detention facilities will be located near places where lawyers
are more readily available. No-cost, quality medical care will be provided to all detainees
and medical facilities in detention centers must meet federal standards. Facilities must
have officers fluent in the detainee’s language or translators must be made available.
Daily access to recreational facilities must be provided.
New standards shall be set for non-criminal detainees including ensuring separation from
criminals. Additional standards will also apply to “vulnerable populations” (defined in
Section 171).
Personnel in detention facilities will be properly trained including training in the unique
needs of vulnerable populations.
Sec. 176. Office of Detention Oversight.
Sec. 177. Secure alternatives program.
A new Office of Detention Oversight shall be established at DHS to ensure detention
facilities are meeting standards including conducting surprise inspections, receiving
complaints, issuing reports and conducting investigations.
DHS shall establish a secure alternatives program allowing detainees to be released under
enhanced supervision to prevent the alien from absconding and to ensure the alien makes
appearances related to such detention. This represents a nationwide expansion of the
Intensive Supervision Appearance Program (ISAP).
Sec. 178. Less restrictive detention facilities.
Sec. 179. Authorization of appropriations; effective date.
Subtitle I—Other Border Security Initiatives Sec. 181. Combating human smuggling.
Calls for creation of an interagency plan to connect databases used to prevent human smuggling, ensure adequate personnel training, effectively target smuggling networks and use tools like visas for victims.
Sec. 182. Screening of municipal solid waste.
Calls on CBP to develop better technologies to detect weapons in municipal solid waste.
Sec. 183. Border security on certain Federal land.
CBP will increase personnel placed on protected federal land in order to stop illegal border crossings and drug smuggling. CBP will also provide specialized training and equipment.
TITLE II—INTERIOR ENFORCEMENT
Subtitle A—Reducing the Number of Illegal Aliens in the United States
DHS shall develop secure, but less restrictive facilities. The DHS detention facilities in
Broward County, FL and Berks County, PA shall be models. New detention facilities
shall be developed that are designed for families.
Funds authorized to be appropriated. This section will take effect six months after
enactment.
Sec. 201. Incarceration of criminal aliens.
Calls for DHS to continue to operate the Institutional Removal Program to identify criminal aliens in jail and then deport upon completion of the sentence.
Sec. 202. Encouraging aliens to depart voluntarily.
This section would tighten voluntary departure rules including shortening the affirmative voluntary departure period from 120 days to 60 days and the voluntary departure in removal proceedings from 60 to 45 days.A provision from
the Senate bill that would authorize state and local law enforcement authorities to
incarcerate someone upon completion of their sentence while they wait on the person to
be claimed by DHS has been removed.
The language from S.2611 calling for the
voluntary departure applicant to waive the right to any further motion, appeal,
application, petition, or petition for review relating to removal or relief or protection from
removal is not in this version.
month phase in period.
$3000 fine for voluntary departure order violations. Six
Sec. 203. Deterring aliens ordered removed from remaining in the United States unlawfully.
Clarifies that attempt at reentering the US is penalized if the alien “seeks admission not later than five years after the date of alien’s removal” as opposed to “seeks admission within five years of the date of such removal”
Sec. 204. Prohibition of the sale of firearms to, or the possession of firearms by certain aliens.
Bars sale of guns to non-immigrants. A waiver is possible.
Sec. 205. Uniform statute of limitations for certain Immigration, naturalization, and peonage offenses.
The statute of limitations for all immigration related crimes would be made a uniform ten years.
Sec. 206. Expedited removal.
The section expands the circumstances under which expedited removal is permitted.
Sec. 207. Field agent allocation.
DHS must allocate at least 40 full-time active duty Immigration and Customs Enforcement agents to each state. The provision also requires DHS to place at least 15 USCIS agents in each state to carry out immigration and naturalization adjudications. DHS has the authority to waive these provisions if a state has a population of less than 2,000,000.
processing by DHS and the Justice Department be barred while background and security clearances are pending has been removed.
Sec. 208. Streamlined processing of background checks conducted for immigration benefit applications and petitions.Provision from S.2611 requiring the completion of any visa or status
DHS will set up an interagency task force to work on resolving cases that have been
delayed more than two years due to background checks. Funds are authorized as
necessary to handle background checks. The FBI must prepare a report for Congress on
background check delays within 180 days of enactment of the law. Cases may not be
approved until background checks have been completed, but USCIS is not to take more
than 180 days to clear a background check unless DHS certifies that the background
check may show that the alien poses a security risk. The Assistant DHS Secretary must
review the delay every 180 days. No appeal can be made of the decision to delay, but an
alien will be eligible for interim employment authorization while waiting.
DHS and DOJ shall establish a Public Advocate for Immigration Clearances within DOJ
that will serve as a public liaison for resolving background check delays.
Sec. 209. State criminal alien assistance program.
Authorization to reimburse states for costs associated with incarcerating criminal aliens extended.
Sec. 210. Transportation and processing of illegal aliens apprehended by State and local law enforcement officers.
This section requires DHS to provide state and local law enforcement authorities with sufficient transportation and officers to take illegal aliens into custody for processing at a detention bill.
Sec. 211. Reducing illegal immigration and alien smuggling on tribal lands.
DHS may award grants to Indian tribes with lands adjacent to land borders to cover costs associated with illegal immigration (law enforcement, environmental cleanup, etc.). Funding authorized until 2011.
Sec. 212. Mandatory address reporting requirements.
Authorizes electronic address change reporting (this is already happening). Bars use of post office box in address notification. Special requirements may be provided for aliens in remote locations and those incarcerated. Aliens in immigration detention are not responsible for submitting address change notifications. A database must be established to track address reporting information.
Sec. 213. State and local Enforcement of Federal Immigration laws.
This section requires DHS to reimburse state and local governments for training related to the enforcement of federal immigration laws.
Sec. 214. Increased criminal penalties related to drunk driving.
Creates a new ground of inadmissibility and deportability for persons convicted three times of drunk driving, one of which is a felony under state or federal law and for which the alien was sentenced for one year or more. Persons are to be given a warning in court of the consequences of pleading guilty to a drunk driving offense.
Sec. 215. Law enforcement authority of States and political subdivisions and transfer to Federal custody.
This section increases areas of cooperation between federal immigration enforcement authorities and the states. The section includes provisions stating the inherent authority to arrest and transfer to Federal custody any alien for the purpose of assisting in the enforcing criminal immigration law provisions.
Sec. 216. Laundering of monetary instruments.
This section adds alien smuggling and related activities to the list of crimes the financial proceeds of which are subject to money laundering statutes.
Sec. 217. 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.
This section requires, subject to appropriations, DHS to construct at least twenty detention facilities in the US to house at least 20,000 individuals.
Sec. 218. Determination of immigration status of individuals charged with Federal offenses.
This section requires that within two years, US Attorneys must be determining the immigration status of defendants.
Sec. 219. Expansion of the Justice Prisoner and Alien Transfer System.
This section expands the Justice Prisoner and Alien Transfer System (JPATS). The expansion will include increasing the use of buses and air hubs in three geographic regions, allocating a set number of seats for affected aliens in each metropolitan area, and allowing metro areas to trade seats depending on their needs.
Sec. 220. Cancellation of visas.
Expands INA Section 222(g) to void all non-immigrant visas of alien and not just the particular visa that is the subject of the overstay. Those subject to 222(g) will now be able to process in country of last residence and not just country of nationality.
Subtitle B—Passport and Visa Security
Sec. 221. Reform of passport fraud offenses.
This section creates a number of new offenses related to producing fraudulent passports including producing fraudulent passports, trafficking in such passports, or dealing or possessing passport material. Also creates new criminal penalties for making false statements in a passport application. If the crime occurs outside the US, the prosecution would happen in the place where the passport is produced. Criminalizes fraudulent use of a valid passport. Creates new crimes for fraudulently applying for or using an immigration document or employment document or trafficking in such documents.
Sec. 222. Other immigration reforms.
The US Sentencing Commission is directed to review immigration and passport crimes and review sentencing guidelines to reflect the serious nature of the offenses. Creates exemptions for asylees who engage in fraud to get in to the US.
Subtitle C—Detention and Removal of Aliens Who Illegally Enter or Remain in the United States
Sec. 231. Detention and removal of aliens ordered removed.
Aliens may be detained longer than 90 days if an attempt is made to contact DHS by the jail. And a longer detention may be allowed if the alien is making efforts no to leave such as not applying for a travel document. Provides for detention of aliens awaiting removal and the discretion to allow such individuals shall be considered for.
Sec. 232. Increased criminal penalties for immigration violations.
Bars receiving permanent residency when one has been found removable. Amends Section 216(e) which allows for those in conditional residency status to apply for citizenship. The amendment requires that the application to remove conditional status must be submitted within 90 days of applying for naturalization. Burden on the applicant to prove lawful admission as permanent resident.
Sec. 233. Aggravated felony.
Broadens the definition of aggravated felony to include any offenses described in the aggravated felony definition regardless of whether the offense was a state or federal violation and shall include foreign offenses where the imprisonment was completed within the past 15 years and regardless of whether the offense occurred before September 30, 1996. Language from S.2611 including sentences tied to recidivism was dropped.
Sec. 234. Increased criminal penalties related to gang violence, removal, and alien smuggling.
Creates new ground of inadmissibility for people convicted of certain gang-related crimes. This section would also transfer responsibility for Temporary Protected Status from the Attorney General to the Secretary of Homeland Security.
Sec. 235. Illegal entry.
Marriage fraud and EB-5 fraud for which the term of imprisonment is at least a year would now be aggravated felonies.
Sec. 236. Illegal reentry.
Provides for a two year sentence if an alien is deported and illegally reenters. Marriage fraud and EB-5 fraud for which the term of imprisonment is at least a year would now be aggravated felonies. Asylees convicted of aggravated felonies would no longer be eligible for waivers to adjust status to permanent residency. “Good moral character” would not apply in cases where a person is convicted of a crime that is not defined as an aggravated felony at the time it occurs but is later classified as an aggravated felony unless the crime is more than ten years old and the applicant is granted a waiver by DHS. Like S. 2611, clarifies that providing humanitarian assistance not a crime nor is providing transportation to a place to get assistance.
TITLE III—EMPLOYMENT VERIFICATION
Sec. 301. Employment verification.
Section 301 of the bill covers the unlawful employment of aliens. Employers would now be required to not only comply with I-9 rules, but also with a new Electronic Employment Verification System that is a permanent implementation of the basic pilot program that has been in existence for the last few years. DHS is also permitted to charge employers taxes tied to use of the system. This section also recognizes DOL’s authority to investigate employers under the Fair Labor Standards Act of 1938.
Knowingly or hiring unauthorized workers carries tougher penalties than unknowingly hiring unauthorized workers. Employers who attempted in good faith to comply with the I-9 rules do have a defense, however, until electronic verification system participation is required.
Section 301 is amended to apply the new rule to employers who use contract workers knowing or recklessly disregarding that the workers are unlawful. Unlike S.2611, this provision is not retroactive.
The bill creates a good faith defense for employers, including technical or procedural
failures.
The bill states that it should not be construed to authorize any sort of national identity card.
DHS may require an employer to certify employment verification compliance based on an internal review as an alternative to a DOL audit. An employer will be granted a 60 day deadline that may be extended in the discretion of DHS.
The employment verification system is significantly altered by now only allowing for a limited number of identification documents to work for employment verification purposes. For US citizens, documents that meet both identification and employment authorization will now only include US passports, a new biometric tamper-resistant, machine-readable passport, a REAL ID compliant driver’s license. For permanent residents, dual id/employment documents are the green card and the biometric Social Security card (not the REAL ID driver’s license). For everyone else, the only dual documents are the USCIS employment authorization card or the biometric SS card. DHS can also designate additional documents (which presumably will be necessary since work authorized non-immigrants will likely be unable to get the two documents listed in a timely manner in order to start work upon entry to the US). Special procedures are set out for minors unable to get the documents in this section. Special rules are also set out for disabled persons working at non-profits or as part of a rehabilitation program. DHS can also bar a document in this section if it finds it to problematic.
The current system of allowing for a showing separate documents to prove identification and employment authorization is scrapped
Individuals must attest that they are a US national, permanent resident or alien authorized to work. The attestation may be verified by signature or electronically. The attestation and supporting documentation copy may be retained in paper or electronically. Documentation must be retained for three years from the date of hire or one year from the date of termination. (S.2611 had a five years from the date of hire retention period). DHS can also allow a shorter retention period for certain classes of employers it may later determine. Employers are required to retain copies of supporting documents (currently this is voluntary). Receipts from the new employment verification electronic system must also be retained.
DHS will establish a national electronic employment verification system to determine identity and authorization to work. DHS will have six months from enactment to establish the system’s technology standards. That deadline can be extended if DHS determines an extension would result in a substantially improved system. The new system should be developed in conjunction with other agencies like the SSA to ensure cross-agency integration.
Employers will be required to make in inquiry in the electronic system within five days of hire. DHS will respond within a day to either confirm eligibility or a tentative non- confirmation. The process after nonconfirmation has been modified from the version in S.2611. Under STRIVE, DHS will notify the worker and will manually confirm eligibility to be employed. Under both S.2611 and STRIVE, the employer is notified and then must notify the employee who is then given 10 days to notify the employee. An individual now has 15 days to respond to a notice of nonconfirmation from either the employer or DHS and DHS will issue a decision within 30 days of such response either confirming eligibility or stating that nonconfirmation is final. If DHS fails to respond in 30 days, it must issue a confirmation. But DHS can later revoke this confirmation if it determines lack of eligibility. Employers are not permitted to terminate during the tentative nonconfirmation period. But employers must terminate when they receive a final nonconfirmation notification.
Workers will have the right to administrative and judicial review of a finding of nonconfirmation. An administrative appeal must be made within 60 days. If the employee prevails in the appeal based on something that is the fault of DHS, DHS must award the employee back wages (not including time the employee was ineligible to work). A judicial appeal may be made within 90 days of a final decision on an appeal to DHS. Back wages shall also be due if the appeal is won at the judicial level.
Employers are not liable for the noncompliance of subcontractors unless the employer had actual knowledge the contractor was employing workers illegally.
Workers will be allowed to check their status in the electronic verification system in order to ensure it the information is correct or has been properly updated. And a provision is included requiring DHS to keep the records as up to date as possible.
Employers may only re-verify eligibility when employment authorization is expiring. DHS is to notify the employer not later than 30 days prior to expiration. The worker can present a receipt showing a timely extension of employment authorization. If the extension is still pending 60 days after this, DHS shall issue a letter to the employee to present to the employer authorizing an additional 90 days to the employee to present the required document.
Employers at “critical infrastructure” locations (mainly government sites) must be re- verified once under the new system.
DHS must establish a 24 hour telephone hotline to deal with problems experienced by employers using the system.
Any employer will be able to voluntarily use the system earlier than is required. DHS can seek to delay roll out
of the system to any of these groups by providing notice to Congress.
Employers will not be required to verify employment for those casually employed in an employer’s home if the work is “sporadic, irregular, or intermittent.” Workers provided through contractor or temporary agencies don’t need to be verified (though the actual employer of such workers presumably would need to verify the worker’s eligibility). And independent contractors need not be verified.
Employers are insulated from lawsuits by employees for termination if they have followed the procedures. Government agencies are prohibited from using data from this system for anything other than verifying employment. No other agencies may access the data other than DHS and only officers responsible for verifying employment authorization.
The Comptroller General must issue a report within 21 months of enactment and then annually after that regarding the reliability of the system, the rate of employer compliance, the level of staffing and funding at DHS,
DHS may notify employers of violations and an intent to fine and the employer will be permitted to rebut such findings with DHS within 45 days. Employers found to have violated the rules will be penalized as follows:
- – fines of $500 to $4000 per alien that is the subject of a violation
- – fines of $4000 to $10,000 per alien if the employer has been fined once in the
previous year for hiring illegal workers
- – fines of $6,000 to $12,000 per alien if the employer has been fined more than once
for hiring illegal workers
- – recordkeeping violations of $200 to $2000 for each violation
- – recordkeeping violations of $400 to $4000 per violation if the employer has been
fined once in the previous year
Within a year, all “critical” employers – mainly government agencies – must be using the
system. Within two years, all employers with more than 5,000 workers must be using the
stem. Within three years, al employers at the 1000 to 5000 level must be using the
system. And within four years, all employers must be using the system.S. 2611 required
the system to be fully functional for everyone within 18 months.
– recordkeeping violations of $6000 per violation if the employer has been fined once in the previous year
Employers will be permitted 30 days to correct purely paperwork violations where there appears no intention to hire illegal immigrants. DHS will also be able to impose additional penalties such as cease and desist order, specially designed compliance plans to prevent further violations and suspended. DHS can also reduce penalties on employers based on various factors including the employer’s good faith attempt to comply with the law. Employers can appeal within 45 days and can recover costs and attorneys fees up to $50,000 (though this number will be adjusted based on inflation).
Employers can be subjected to criminal penalties for knowing violations of up to $20,000 per alien and three years imprisonment, or both. DHS can also seek court orders against an employer engaged in a pattern or practice of violations under this section.
If an employer fails to comply with a DHS order, DHS can file suit to enforce compliance after 45 days from the point of failing to comply with the DHS order.
Employers are barred from requiring employees to post indemnity bonds relating to potential liability under this section.
Employers found to be repeat violators under this section may be barred from government contracts for five years.
The provisions of this section preempt state laws designed to crack down on employers hiring undocumented immigrants and states may not use the federal verification system for purposes other than employer verification including verifying the legal status of renters, eligibility for benefits, enrollment in school, obtaining a license, receiving a government contract, etc.
DHS will establish an Office of Electronic Verification to work with the Social Security Administration to administer the verification program.
The Employer Compliance Fund called for in S.2611’s Section 302 is not in STRIVE.
Sec. 302. Clarification of ineligibility for misrepresentation.
Changes the employment verification question to ask if a person is a “national” of the US instead of a “citizen.” This is a correction of the “loophole” that has allowed individuals to avoid liability for a false claim to citizenship by claiming that they were potentially claiming to be nationals instead of citizens.
Sec. 303. Antidiscrimination protections.
Extends INA’s anti-discrimination provisions to the new electronic verification system. It shall be unlawful discrimination to terminate someone for being the subject of a tentative
That fund would be comprised of fines collected under this section and used to enforce
and enhance worksite compliance.
nonconfirmation. Employers may not use the electronic verification system to screen an employee before the date of hire nor may they use the system to selectively exclude individuals based on an assumption they will require additional verification.
Fines for anti-discrimination violations are dramatically increased.
Sec. 304. Additional protections.
Adds “compensation, terms or conditions of the employment of the individual” to national origin and citizenship status as the basis for a discrimination claim.
Document abuse provision tightened to make it a violation to require too many documents even if the employer did not intend to violate the employer compliance rules.
Requires anti-discrimination complaints filed with the Special Counsel be filed within a year of the alleged act and that the Special Counsel begin investigating within 180 days.
Administrative Law Judges are given more discretion to craft remedies appropriate to the case.
Sec. 305. Additional worksite enforcement and fraud detection agents.
Calls for hiring of 2,200 more ICE personnel to investigate worksite violations over a five year period from enactment. At least 25% of ICE work hours are to be devoted to worksite enforcement.
Sec. 306. Amendments to the Social Security Act and the Internal Revenue Code.
Requires the Social Security Administration to set up a method to verify the name, date of birth, employer identification number, social security number and citizenship status of an individual as part of the new verification program. DHS must also provide a system where people can block their numbers from being used under the system in order to prevent fraud. SSA shall coordinate with DHS in issuing social security numbers for aliens.
Calls on SSA to share information with DHS on employers that receive large numbers of no match letters.
TITLE IV—NEW WORKER PROGRAM Sec. 401. Nonimmigrant worker.
The controversial section 401 from S.2611 is removed. That section stated that any
regulation that would increase the number of aliens eligible for legal status not take effect
before 90 days after the date on which the Director of the Bureau of the Census submitted
a report to Congress. The report would be madejointly with a number of departments of
the Federal government and is to assess the impact of the bills increased immigrant
numbers on the “infrastructure” and “quality of life in the United States.” The report must
be submitted to Congress within 90 days after enactment of the new law.
Section 401 of STRIVE creates a new H-2C visa that is similar to the H-2C proposed in last year’s S.2611 bill. . This visa appears targeted to workers either outside the US or currently in legal status in the US. A separate guest worker program targeted at out of status workers is outlined in Title VI.
The visa is available to those coming to the US temporarily to perform temporary labor or services other than labor or services covered in H-1B, H-1B1, H-1C, H-2A, H-3, or L,
O, P, or R visas (the H-2B visa is not listed here so presumably this visa can be used as an alternative to that visa.
. Section 403 outlines the H-2C requirements. The employer must be capable of
performing the services that are the subject of the petition. The worker must show that he or she has received a job offer from a qualified employer. The worker must pay a $500 visa issuance fee in addition to the cost of adjudicating the petition (and this is in addition to consular reciprocal fees). Workers must have a medical examination at the worker’s expense. Workers must submit background information on health, criminal and security issues.
The requirement from S.2611 that the applicant must have a
residence in a foreign country which the applicant has not intention of abandoning has
been removed. In S.2611, the employer had to only show that no unemployed workers are
available. STRIVE requires a showing that there are no US workers “who are able,
willing and qualified” to perform the job,” a tougher standard since it presumably would
cover employed workers immediately available to change to the new position
S. 2611 required that the visa become available 18 months after $400,000,000 is
appropriated to implement the electronic verification system described in Title 3 and shall
apply to aliens outside the US on the effective date. S.2611 also required that rules must
be released by DOL within six months of the enactment of the law.
provision are in the STRIVE Act.
Sec. 402. Admission of nonimmigrant workers.
Nether one of these
Section 402 outlines the H-2C requirements. The employer must be capable of performing the services that are the subject of the petition. The worker must show his or her evidence of employment including evidence from employers, employer associations and labor representatives. The worker must pay a $500 visa issuance fee in addition to the cost of adjudicating the petition (and this is in addition to consular reciprocal fees). Workers must have a medical examination at the worker’s expense. Workers must submit background information on health, criminal and security issues.
DHS may waive in admissibility in certain cases where there are humanitarian, public policy or family unity reasons to consider
H-2Cs are available for an initial term of up to three years with a one time renewal for three more years. The S.2611 requirement barring changes of non-immigrant status has been removed. Commuters into the US are not subject to the time limits. H-2C time may again be granted after a one year departure from the US.
H-2C status will be lost if a worker is unemployed for 60 or more consecutive days and the worker will be required to leave the US. DHS may continue H-2C status if the unemployment is caused by a medical disability of the alien or an immediate relative, a period of authorized medical or other leave, or a disaster or emergency as defined in Section 532 of the STRIVE Act. Workers leaving under this provision must leave, but may reenter as H-2Cs.
Travel outside the US is permitted on H-2C visas but time outside the US will not be tacked on to the six years permitted in H-2C status.
H-2Cs will be granted a biometric, tamper-resistant card either at a port of entry or a consulate if they are from a country continguous to the US.
H-2C holders who fail to depart shall have their visas voided any are subject to Section 222(g).
Anyone who enters or attempts to enter the US without inspection after enactment of the H-2C provisions will be barred for ten years receiving most immigration benefits.
The H-2C is portable and workers can move to new jobs as long as the new employer complies with the terms for H-2C employment.
Sec. 403. Employer obligations.
Section 40e spells out an employer’s obligations when hiring H-2C workers. Employers are required to pay the worker’s filing fee. The fees are different than under S.2611 and are as follows:
- – $250 per worker for employers with fewer than 25 workers;
- – $500 for employers of between 26 and 150 employees;
- – $750 for employers of 151 to 500 employees; or
- – $1000 for employers with more than $1000 employees.
(S.2611 limited such waivers to conduct that
occurred before enactment of the comprehensive bill).
S.2611’s clause permitting DHS to waive the requirement to
depart has been removed.
This is somewhat different than S.2611 which required an H-2C to depart within
10 days after the H-2C status terminates, but barred the applicant after that from most
immigration benefits.
Under S.2611, H-4 visas may be granted to spouses and children. But this provision does
not appear in the STRIVE Act.
22
This section also sets out recruiting requirements for H-2Cs. In the period between 90 days and 14 days prior to submitting the application, the following must occur:
– submission of a copy of the job opportunity to the State Employment Service Agency (SESA);
– authorizing the SESA to post the job on the web, with local job banks, and with unemployment agencies and similar recruitment sources;
– authorizing SESA to notify labor unions;
– posting of the job at the place of employment;
– advertising the job in the publication with the highest circulation in the job market
for at least ten consecutive days; and
– based on the recommendations of the local job service, advertising in
professional, trade, or ethnic publications likely to be patronized by a potential worker.
The job must first be offered to any eligible US worker who applies, is qualified and is available at the time of need. Employers must attest that the:
– Hiring the H-2C will not adversely affect wages and working conditions for US workers.
– The employer did not and will not cause US workers to lose their jobs by hiring the H-2C worker. There is a 90 day look back and look forward provision.
– The worker will be paid the higher of either the actual or prevailing wage. A provision allowing for the use of private wage data was deleted from the version of the bill passed by the Judiciary Committee.
– There is no strike or other form of work stoppage.
– The employer is covered by a state workers compensation program, the employer will provide at no cost to the worker insurance covering injury or illnesses arising due to the job. The insurance would need to be comparable to state workers compensation programs.
– Notice to workers is provided
– Unless DOL has pre-certified a shortage, the employer can show there are not sufficient workers able, willing and qualified and immediately available to perform the job. Good faith recruiting efforts must be undertaken in the three month period prior to filing (with recruiting ending at least 14 days prior to filing). The job must be advertised at the actual wage paid by the employer.
– The job must be bona fide.
– Employers must maintain public access files.
– The employer must notify DOL and DHS when an H-2C leaves the employer within three business days after the departure.
– The petition must be filed not more than 60 days before the date the services are needed.
DHS shall have the authority to audit employers to ensure compliance. Employers are required to retain records for five years from the date the petition is filed. Employers who misrepresent facts or fail to comply with the terms of the program can be barred for up to three years from sponsoring or employing H-2C workers. And punishing whistle blowing employees or former employees is prohibited.
The H-2C visa will not be available to workers coming to perform services in metro areas in which the unemployment rate for unskilled or low-skilled workers during the most recently completed six month period averaged more than 9%.
H-2C workers may not be treated as independent contractors.
Foreign labor contractors recruiting H-2C workers are required to disclose a variety of details to H-2C workers at the time of their recruitment including information on the proposed place of employment, the pay, the type of work, who is paying travel expenses, whether there is a strike or other similar labor dispute, whether the contractor is getting a commission based on the worker’s services, details regarding insurance and worker’s compensation coverage, and information on the risk of work related injuries. Foreign labor contractors are prohibited from charging the H-2C worker for their services.
Foreign labor contractors will be required to register with the Department of Labor and employers may only use the services of registered contractors. DOL will issue two year renewable certifications of these contractors. H-2C workers will also have the ability to lodge complaints against contractors with the DOL. The DOL will have the discretion to require contractors be bonded and may also deny certification if it determines the contractor lacks sufficient ties to the US to adequately enforce these rules.
retaliation for the beneficiary’s exercise of rights under STRIVE.
Employers are subject to civil fines of $2000 up to $35,000 per worker depending on whether the violation is willful and whether a worker was harmed. Imprisonment of up to six months and additional fines of up to $35,000 are possible if a willful violation occurs and an individual suffers extreme physical or financial harm. STRIVE also adds a provision to S.2611 stating that fines under the Fair Labor Standards Act or OSHA relating to an H-2C will be doubled.
Sec. 404. Alien employment management system.
DHS is required to set up an alien employment management system to allow for electronic filing of single or multiple H-2C applications and manage and track the employment of H-2C immigrants.
Sec. 405. Recruitment of United States workers.
The Department of Labor must set up a web page linking to each state’s electronic job registry information on job opportunities for US workers in order to ensure US workersS.2611 had a one year
phase in date for this provision, but STRIVE makes it immediately applicable.
STRIVE has two protections not included in S.2611. First, H-2Cs may not be required to
waive any rights or protections under STRIVE and employers who have filed an
attestation with DOL may not threaten an alien with the withdrawal of a petition in
S.2611 stated that employers shall be able to recruit
and advertise employment opportunities through the system, but this provision is dropped
in STRIVE.
are not being passed over in favor of foreign workers. And DOL must set up a publicly accessible web page that provide a single Internet link to each State workforce agency’s electronic registry of jobs available throughout the US.
Sec. 406. Numerical limitations.
400,000 H-2Cs in year one. The cap may grow up to 20% per year depending on how quickly the cap is reached in the previous fiscal year. The cap may also decrease by 10% per year if the cap is not reached (unless the cause of this was either a delay in issuing rules or processing delays). A total cap of 600,000 is set.
Sec. 407. Adjustment to lawful permanent resident status.
Unlike S.2611, provides for adjustment of status to permanent residency for H-2Cs if they
have
– –
sponsorship by the employer or
they have been in H-2C status for five years and self petition
Applicants must pay a $500 fee, be in the US, prove employment, and prove English
proficiency under Section 312 of the naturalization rules of the INA or be studying
English and US civics.
The green card will be conditional for two years. Conditional status will be removed if
the applicant proves continuing employment in an area that is not a high unemployment
area, proof of payment of income taxes, English and civics skills, background checks
completed, registration for selective service.
Applying for permanent residence shall not interfere with non-immigrant requirements
for H-2C status.
H-2C status may be extended in one year increments beyond six years if a normal family
or employment-based green card is pending or an adjustment application under this
section.
Sec. 408. Requirements for participating countries.
The US shall negotiate bilateral treaties with countries sending H-2C workers requiring the countries to accept the return of nationals ordered removed from the US within three days of such removal.
Sec. 409. Compliance investigators.
The Labor Department is now directed to hire not less than 2,000 additional investigators annually to ensure compliance with the rules of the H-2C program.
Sec. 410. Standing commission on immigration and labor markets.
Calls for the creation of a new independent federal agency called the Standing Commission on Immigration and Labor Markets that will study the H-2C program and make recommendations.
Sec. 411. Admission of nonimmigrants.
Adds the H-2C to the list of dual intent visa categories.
Sec. 412. Agency representation and coordination.
Bars ICE officials from representing to employees or employers that they are a member of
Sec. 413. Sense of Congress regarding personal protective equipment.
Sec. 414. Rulemaking; effective date.
DHS will have one year to implement the H-2C program.
Sec. 415. Authorization of appropriations.
Authorizes appropriations as necessary to carry out Title IV.
TITLE V—VISA REFORMS
Subtitle A—Backlog Reduction
Sec. 501. Elimination of existing backlogs.
any agency or organization that provides domestic violence services, enforces health and
safety law or other labor laws, provides health care services, or any other services to
protect life and safety.
States that Congress would like DOL to issue regulations requiring employer to provide
employees with personal protective equipment.
Allows for the recapture of unused green card numbers from previous years in the family- based categories.
This section allows recapture of unused visa numbers. It also increases employment- based green cards from 140,000 to 290,000 to accommodate some of the undocumented workers who will now have to queue up behind the longer term residents (those over five years) as well as all persons currently awaiting employment based green cards either in the US or abroad).
Visas for spouses and children shall not be counted against the employment-based numerical limits as long as that number does not exceed 800,000 per year (S.2611 set that number at 650,000).
Sec. 502. Increasing country limits and exempting family-sponsored and employment-based immigrants.
Raises per country limits from 7% to 10%.
Sec. 503. Allocation of immigrant visas.
The allocation of family-sponsored visas is shifted as follows:
– 10% – F1 unmarried sons and daughters of citizens
– 50% – F-2 spouses, minor children and unmarried adult sons and daughters of permanent residents (77% of these go to spouses and minor children of permanent residents)
– 10% – married sons and daughters of US citizens
– 30% – brothers and sisters of citizens
The allocation of 290,000 employment-based visas is shifted as follows:
– 15% for EB-1 (was 28.6% but presumably many will now qualify in the new uncapped category for certain advanced degree holders)
– 15% for EB-2
– 35% for EB-3
– 5% for investors (re-designated as EB-4)
– 30% for new EB-5 for other workers (old EB-3 unskilled workers) – 30% of these shall be reserved for people in the US before January 7, 2004
Section 503 is amended to remove the numerical limitation on green cards for all special immigrants and not just the first two small groups (returning lawful permanent residents and former US citizens returning to the US). This expanded group includes religious workers.
Increases from 50 to 300 the number of Iraqi and Afghan translators for fiscal years 2007,
2008 and 2009.
Reduction by 5,000 of H-2B visas from NACARA repeased.
Sec. 504. Nursing shortage.
This section exempts Schedule A shortage occupations (nurses and physical therapists are the only groups on the list right now) from employment-based green card caps until September 30, 2017. Spouses and children are included in the cap exemption.
New language has been added requiring an HHS report on the nursing shortage, the foreign nurse population in the US and the impact of nursing immigration on the supply of nurses in the countries the nurses are leaving. Also calls on HHS to enter into a contract with the National Academy of Sciences Institute of Medicine to determine the amount of Federal investment necessary to eliminate the nursing shortage within seven years of this report being published. And HHS shall collaborate with the health ministries of the five countries sending us the most nurses and physical therapists to address any health care worker shortages caused by emigration.
Removes per country limits on special immigrants.
Allows for direct consular filing of I-140 petitions for Schedule A
Sec. 505. Expedited adjudication of employer petitions for aliens of extraordinary artistic ability.
This section calls for expedited processing for O and P artist visas. USCIS will have 30 days to process these applications and 15 days to complete processing after submitting a response to a request for evidence. Cases not decided in 30 days for non-profit petitioners or individuals petitioning primarily on behalf of a nonprofit petitioner are entitled to have their cases converted to the premium processing program without charge.
Sec. 506. Powerline workers and boilermakers.
Adds powerline workers and boilermakers to the TN list of occupations. Sec. 507. H–1B visas.
This section incorporates parts of the SKIL Act which was incorporated in to S.2611. It makes a number of modifications to the H-1B program including the following changes to the cap rules:
The cap exemption for non-profit research institutions is broadened to include all non- profit institutions
The cap exemption for governmental organizations is clarified to include “Federal, State, or local” governmental research organizations.