Siskind Summary – The US Citizenship Act (the “Biden Immigration Bill”)

Posted on: February 20th, 2021
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Siskind Summary – The US Citizenship Act (the “Biden Immigration Bill”)

By Greg Siskind (gsiskind@visalaw.com)

Here’s a PDF of this document

Spouses and children will no longer count against employment-based numerical limits in the EB categories.

The bill states as its purpose “to provide an earned path to citizenship, to address the root causes of migration and responsibly manage the southern border, and to reform the immigrant visa system, and for other purposes.

Initial observation – The bill is 353 pages which is considerably shorter than previous comprehensive bills (probably because it leaves out the long enforcement sections).

 

Section 1. SHORT TITLE; TABLE OF CONTENTS.

 

Section 2. DEFINITIONS.

 

  • Terms used in the bill have the meaning given such term in immigration laws
  • “Immigration laws” has the meaning given in Section 101(a) of the Immigration and Nationality Act (INA).
  • “Secretary” means Secretary of Homeland Security

 

Section 3. TERMINOLOGY WITH RESPECT TO NONCITIZENS

 

  • The term “alien” is replaced in the INA, US Code and uncodified provisions of the law with the term “noncitizen”
  • “Noncitizenship” means “the condition of being a noncitizen”

TITLE I _ EARNED PATH TO CITIZENSHIP AND OTHER REFORMS

 

Subtitle A – Earned Path to Citizenship

 

Section 1101. Lawful Prospective Immigrant Status.

 

A new Section 245B is added to the INA that says DHS may grant lawful prospective immigrant status to a noncitizen (and spouse and children) who 1) meets the requirements in in new Section 245G(b), including criminal/security checks and paying fees and 2) submits an application. Spouses and children don’t have to submit a separate petition.

 

The initial period of authorized admission for a “lawful prospective immigrant” (LPI) is 6 years (unless revoked) and may be extended for additional 6-year terms if the LPI remains eligible, has passed background checks and has not had the status revoked.

 

LPIs will be given “documentary evidence of LPI status” – card –  and be valid for 6 years.

 

LPIs will be considered lawfully present in the US for all purposes except they will not be eligible for certain ACA benefits and tax credits.

 

LPIs are authorized to be employed.  They are authorized to travel with their LPI document or a travel document approved by DHS if the original LPI document is lost, stolen or destroyed. Time outside the US is limited to 180 days in a calendar year unless DHS authorizes longer absences or the excessive time was beyond the LPI’s control (and the LPI isn’t inadmissible on certain national security or foreign policy grounds).

 

SSA shall grant Social Security Numbers to LPIs.

 

LPIs are allowed to join the US Armed Forces.

 

 

Section 1102. Adjustment of Status of Lawful Prospective Immigrants

 

A new Section 245C is being added to the INA to provide for adjusting LPIs. DHS may adjust LPIs to Lawful Permanent Resident (LPR) status if

 

  1. The applicant still meets LPI requirements and passes background checks and pays fees
  2. Submits an application under special procedures
  3. Has been an LPI for at least 5 years
  4. Remains eligible for LPI status
  5. Hasn’t been absent for more than 180 days (except as provided in Section 1101)

 

Grounds of inadmissibility under Section 212(a) previously waived won’t apply.

 

All federal taxes must be paid.

 

 

Section 1103. The DREAM Act.

 

Adds a new Section 245D for adjustment of status for certain noncitizens who entered the US as children.

 

LPR status may be granted to a noncitizen if the noncitizen

 

  1. Satisfies the eligibility requirements in Section 245G(b) (see Section 1101) including background checks and paying required fees.
  2. Submits an application
  3. Was younger than 18 years when entering the country initially
  4. Has a high school diploma, commensurate alternative award from a public or private high school, a GED certificate recognized under state law or a high school equivalency diploma
  5. Has obtained a college degree (at least associate’s level and leading to a bachelors or higher or a recognized postsecondary credential from an area career and technical education school), has served in the Armed Services for at least two years or, if discharged, was honorably discharged, or has earned income for at least 3 years working at least 75% of the time the person had valid work authorization (except for people enrolled in a higher education program and they would get credit for that time toward the 3 years).
  6. Has registered for Selective Service if required.

 

The above requirements can be waived if there are compelling circumstances showing an inability to satisfy them.

 

Spouses and children of people eligible to adjust under the DREAM Act can also adjust.

 

A streamlined program will be created for people in the DACA program who are eligible for renewal of DACA.

 

The rule barring DACA recipients from accessing the Affordable Care Act are being rescinded and the five-year requirements for accessing Medicaid and CHIP are also not applicable. Provisions also are included making DACA recipients eligible for FHA, Rural Housing Service, Fannie Mae and Freddie Mac mortgages.

 

 

Section 1104. The American Promise Act.

 

This section provides for the adjustment of status of TPS and DED recipients. A new INA Section 245E is added.

 

DHS may grant LPR status to a noncitizen who

 

  1. meets the requirements of 245G(b), including criminal/security background checks and the payment of all fees;
  2. submits an application pursuant to 245G(b)(1);
  3. has been physically present since 1/1/2017; and
  4. is a national of a foreign state, or if stateless, last habitually resided in such foreign state, with a TPS/DED designation under §244(b) on 1/1/2017
  5. Spouses and children are eligible

 

Clarifies that TPS recipients are considered “inspected and admitted to the US” under Section 244(f)(4). This provision codifies what a couple of circuit courts have held and makes it possible for TPS recipients to adjust status.

 

 

Section 1105. The Agricultural Workers Adjustment Act.

 

This section provides for the adjustment of status of certain agricultural workers via a new Section 245E of the INA. DHS may grant LPR status to a noncitizen if

 

  1. meets the requirements of 245G(b), including criminal/security background checks and the payment of all fees;
  2. submits an application pursuant to 245G(b)(1);
  3. determines that, during the 5-year period immediately preceding the date on which the noncitizen submits and application under this section, the noncitizen performed agricultural labor or services for at least 2,300 hours or 400 work days.
  4. Spouses and children are eligible and they don’t have to meet the work requirement.

 

“Agricultural labor or services” has the same meaning as used in H-2A visa processing and means agricultural employment without regard to whether the work is seasonal or temporary.

 

 

Section 1106. General Provisions Relating to Adjustment of Status.

 

This section covers the new benefits and INA sections created above (245B, 245C, 245D, and 245E). A new INA 245G is created and notes common eligibility requirements of these four sections:

 

  • The noncitizen shall submit a completed application to DHS.
  • Noncitizens over 18 will pay a fee to be determined by DHS (enough to cover the costs of administering the program). DHS may limit the maximum fee payable by a family and also waive the fee for good cause.
  • The noncitizen must be physically present in the US on the date the application is submitted and have been continuously physically present in the US beginning on 1/1/2021 and ending when the application is approved. Exceptions if DHS approved travel during this period as well as brief, casual and innocent absences (which will not include absences of more than 180 days unless DHS determines the absence was involuntary). A Notice to Appear will not disrupt the continuity of physical presence.
  • Noncitizens removed on or after 1/1/2017 who were physically present in the US for at least 3 years prior to that, may apply if DHS waives for humanitarian reasons, to ensure family unity, or a waiver is otherwise in the public interest and the person hasn’t reentered the US illegally after 1/1/2021.
  • DHS shall set a procedure to apply for adjustment under this section.

 

Grounds for ineligibility:

 

  • Criminal (felony or 3+ misdemeanors (excluding possession of marijuana)), national security, noncitizen smuggling, draft dodging, international child abductions, renunciation of US citizenship to avoid taxes. Waivers available for humanitarian reasons, family unity, or if in the public interest and crime within last ten years. Waivers available of 1 misdemeanor if no convictions in prior 5 years and 2 misdemeanors if no convictions in the prior 10 years. Mitigating and aggravating factors are to be considered in the waiver adjudication (including underlying circumstances, duration of residence, rehabilitation and how denial would affect the noncitizen or family.
  • Noncitizens who are LPRs, admitted as refugees or are asylees, nonimmigrant visa holders [the text appears to incorrectly limit to A visa holders, but then includes exceptions some exceptions including H-2A visa holders which only makes sense if all NIV categories are included. Aside from H-2As, spouses and kids in NIV status otherwise eligible are excepted as well as those engaged in “essential critical labor or services during the COVID emergency.” This exception was incorporated in the Heroes Act and is a very broad list and COVID is tied to the date the emergency was declared by Trump until 90 days after the public health emergency declared over.
  • Ineligible if departed the US while subject to an exclusion, deportation, removal or voluntary departure order and was outside the US on 1/1/2021 or reentered unlawfully after 1/1/2021.
  • Applicants must submit biometric and biographic data (alternative procedures if a physical impairment prevents). Background checks must be completed before status granted.
  • Eligibility for one of these statuses doesn’t preclude the noncitizen from seeking any status under other provisions of immigration law. The bar based on the filing of a frivolous asylum application doesn’t apply.
  • There are no limits on the number of people who may benefit from these provisions and they will not count against limits in other categories.
  • People who appear “prima facie” eligible will be given an opportunity to apply and avoid removal.
  • Families will be able to file a combined application. If a couple divorces or there is domestic violence, the spouse will be able to apply independently if otherwise eligible. If the principal’s application is denied, the spouse or child can still seek to adjust independently.
  • If requirements met, DHS will approve adjustment to LPI or LPR status.
  • A card evidencing LPI or LPR status will be provided.
  • This section lists documents to be submitted to establish identity, physical presence, and exemption from application fees.
  • If an application is found to be missing evidence, a supplemental application may be submitted.
  • Status may be revoked if there is a determination that it was obtained fraudulently.
  • An appellate process will be created for denials of cases under this section; one appeal is permitted. Appeals must be filed within 90 days. Removals are stayed while appeals are pending.
  • While an application is pending, DHS may authorize advance parole and the noncitizen shall not be considered an unauthorized noncitizen.
  • EADs will be provided.
  • DHS may not use information provided in an application for enforcement purposes. $50K penalty for violations.
  • DHS will make forms and instructions available in most common language and accommodate disabilities.
  • DHS will issue final rules within a year and the rules will take effect immediately upon publication on an interim basis. A final rule will be published within 180 days of that.

 

 

Subtitle B – Other Reforms

 

Section 1201. V Nonimmigrant Visas.

 

This section revives the V visa category and applies to beneficiaries of family visas or spouses and children in legalization-based categories (see section 1101). The V visa previously was available to Family 2A beneficiaries who had petitions pending for three years and had filed before 12/21/2000.

 

V visa holders will be employment authorized and must have an endorsement or an EAD.

 

V visa holders will have V status until 30 days after the underlying immigrant visa application or adjustment of status is denied.

 

V visa holders are not eligible for any means-tested public benefits or qualified health plan tax credits or ACA benefits.

 

This section is effective on the 1st day of the 1st fiscal year beginning after the bill is enacted.

 

 

Section 1202. Expungement and Sentencing.

 

The definition of “conviction” for immigration purposes is changed to no longer include any adjudication or judgement of guilt that has been dismissed, expunged, deferred, annulled, invalidated, withheld or vacated. It also doesn’t include adjudications where a court has recommended against removal, an order of probation without entry of judgement or any similar disposition. Also, judgements on appeal or within the time to appeal don’t count.

 

With respect to an offense, references to a term of imprisonment or a sentence is considered to only include the period of incarceration ordered by the court. Portions of a sentence that are suspended don’t count.

 

Additional clarification is provided that a judicial order recommending against removal will suffice to negate a ground of removal if, within 180 days after sentencing, and having provided notice and an opportunity to respond to the prosecutors and DHS, the court issues such recommendation.

 

 

Section 1203. Petty Offenses.

 

The petty offense exception is modified to allow for two crimes if the maximum penalty for each did not exceed 1 year and the noncitizen wasn’t sentenced in either to more than 180 days.

 

 

Section 1204. Restoring Fairness to Adjudications.

 

A new waiver ground for “humanitarian, family unity and public interest” is created that can waive the grounds of inadmissibility or removability under INA Sections 212(a) or 237(a). The severity of the underlying circumstances, the duration of residence in the US, evidence of rehabilitation and the adverse effect on family members shall be considered.

 

 

Section 1205. Judicial Review.

 

Clarifies that courts can review questions of constitutional claims or questions of law even when they cannot review the discretionary components of removal decisions. District courts where the noncitizen resides or the circuit where a removal hearing was held are the proper place of venue. Expands judicial review in removal matters.

 

 

Section 1206. Modifications to Naturalization Provisions.

 

Section 316 of the INA allows people to file after 3 years versus 5 years if they’re married to a US citizen. It is being amended to reduce from 5 years to 3 years the residence requirement for those LPRs who, for at least 3 years before becoming an LPR were both lawfully present and eligible for employment authorization.

 

 

Section 1207. Relief for Long-Term Legal Residents of the Northern Mariana Islands.

 

H-1Bs working in Guam or the CNMA will not be counted against the annual count.

 

Allows DHS to establish a process for eligible noncitizens to apply for CNMI Resident Status during the 180-day period beginning 90 days after the date of enactment. DHS may authorize employment while waiting on the decision on CNMI resident status. Limits access of CNMI residents to use of public assistance.

Sets out the criteria for getting CNMI Resident Status.

 

 

Section 1208. Government Contracting and Acquisition of Real Property Interest.

 

Limits the ability to challenge the government’s acquisition of property to implement the programs in this title.

 

 

Section 1209. Conforming Amendments to the Social Security Act.

 

LPIs and noncitizens who adjust status to LPR status under sections 245C, 245D, 245E, or 245F are exempt from various penalties under the SSA. Amendments under this section take effect on the 1st day of the 10th month beginning after the date of enactment.

 

 

TITLE II – ADDRESSING THE ROOT CAUSES OF MIGRATION AND RESPONSIBILY MANAGING THE SOUTHERN BORDER

 

Section 2001. Definitions.

 

“Best interest determination”, “internally displaced persons”, “international protection”, “large-scale, nonintrusive inspection system”, “pre-primary”, “scanning”

 

Subtitle A – Promoting the Rule of Law, Security and Economic Development in Central America

 

 

Section 2101. United States Strategy for Engagement in Central America.

 

DOS shall implement a 4-year strategy called the “US Strategy for Engagement in Central America”. Purposes:

 

  • Advance reforms in Central America
  • Address key factors contributing to the flight of families, unaccompanied noncitizen children, and other individuals from Central America to the US

 

The Strategy shall include efforts to

 

  • Strengthen democratic governance, accountability, transparency, and the rule of law;
  • To combat corruption and impunity;
  • To improve access to justice;
  • To bolster the effectiveness and independence of judicial systems and public prosecutors’ offices;
  • To improve the effectiveness of civilian police forces;
  • To confront and counter violence and other crimes;
  • To disrupt illicit financial operations of criminal networks;
  • To promote greater respect for human rights;
  • To protect the rights of environmental defenders, civil society activists and journalists;
  • To enhance accountability for government officials who have committed human rights violations and crimes;
  • To enhance the capability of governments in Central America to protect and provide for vulnerable and at-risk populations;
  • To address the underlying causes of poverty and inequality and the constraints to economic growth in Central America; and
  • To prevent and respond to endemic levels of sexual, gender-based, and domestic violence.

 

DOS will coordinate with Treasury, DOD, DHS, DOJ, USAID and the US Development Finance Corporation and consult with the DNI, national and local civil society organizations in Central America and the governments of Central America. DOS will also support current efforts being undertaken by Central American governments working with bilateral and multilateral donors.

 

 

Section 2102. Securing Support of International Donors and Partners.

 

DOS will implement a 4-year plan to secure support from international donors and regional partners to implement the strategy. And to find governments and multilateral institutions interested in assisting. DOS will work with Treasury in this effort.

 

 

Section 2103. Combating Corruption, Strengthening the Rule of Law, and Consolidating Democratic Governance.

 

DOS and USAID will combat corruption in Central America by supporting anti-corruption and rule of law initiatives.

 

 

Section 2104. Combating Criminal Violence and Improving Citizen Security.

 

DOS and USAID are authorized to support initiatives designed to combat violence and crime perpetrated by criminal networks.

 

 

Section 2105. Combating Sexual, Gender-Based, and Domestic Violence.

 

DOS and USAID are authorized to support initiatives designed to combat sexual, gender-based, and domestic violence in Central American countries.

 

 

Section 2106. Tackling Extreme Poverty and Advancing Economic Development.

 

DOS and USAID are authorized to support initiatives to tackle extreme poverty in Central America.

 

 

Section 2107. Authorization of Appropriations for United States Strategy for Engagement in Central America.

 

$1B is authorized for each of FY2022 through FY2025.

 

 

Subtitle B – Addressing Migration Needs by Strengthening Regional Humanitarian Responses for Refugees and Asylum Seekers in the Western Hemisphere and Strengthening Repatriation Initiatives.

 

Section 2201. Expanding Refugee and Asylum Processing in the Western Hemisphere.

 

DOS, in coordination with DHS, shall work with international partner organizations to support and strengthen the domestic capacity of countries in the Western Hemisphere to process and accept refugees and asylees by providing support and technical assistance, establishing and expanding safe locations to facilitate, improving national refugee/asylum registration systems, and developing the capacity to conduct best interest determinations for unaccompanied children with international protection needs. DOS and DHS will carry out diplomacy to secure commitments from governments to resettle Central American refugees.

 

 

Section 2202. Further Strengthening Regional Humanitarian Responses in the Western Hemisphere.

 

DOS, in coordination with international partners, shall coordinate with refugee-hosting countries to establish temporary shelter capacity, deliver humanitarian assistance, establish violence prevention programming, fund humanitarian organizations, support integration initiatives to help refugees/asylees and support technical assistance for refugee relocation and resettlement.

 

 

Section 2203. Information Campaign on Dangers of Irregular Migration.

 

DOS and DHS shall implement public information campaigns in Central America regarding the dangers of travel to the US and about US immigration law including asylum rules.

 

 

Section 2204. Identification, Screening, and Processing of Refugees and Other Individuals Eligible for Lawful Admission to the United States.

 

Designated Processing Centers – DOS/DHS shall establish processing centers for registration, screening, and processing of refugees and resettling them in the US and other countries. At least 1 DPC in El Salvador, Guatemala, Honduras and any other country that DOS considers appropriate.

 

DHS will ensure a sufficient number of refugee officers for each DPC and begin operations as expeditiously as possible.

 

 

Section 2205. Registration and Intake.

 

Each DPC shall register individuals seeking to apply for benefits and assess people for eligibility under the Central American Refugee Program (§2206), Central American Minors Program (§2207) and the Central American Family Reunification Parole Program (§2208). Expedited processing will be available in emergency/humanitarian situations.

 

 

Section 2206. Central American Refugee Program.

 

Allows applicants to file for refugee resettlement at DPCs and also provides for cases to be referred to other countries with which we have bilateral and multilateral treaties. DHS shall add additional refugee officers as needed to carry out this section.

 

 

Section 2207. Central American Minors Program.

 

Allows DPCs to accept special immigrant status applications for Central American minors and DHS may provide such noncitizens with such status. Such children will be excluded from numerical limits in the EB-4 category. Applications under the prior program (established in 2014 and terminated August 16, 2017) which were not decided before 1/31/2018 will be deemed filed under the new program and decided within 180 days after the date of enactment of this bill.

 

 

Section 2208. Central American Family Reunification Parole Program.

 

DPC may accept an application for parole filed by a noncitizen (or filed by a parent or guardian on a noncitizen’s behalf) if they are the beneficiary of an approved family-based immigrant visa petition and a visa is not immediately available.

 

 

Section 2209. Informational Campaign; Case Status Hotline.

 

DHS shall implement an information campaign in English and Spanish in Central America to increase awareness of the programs in this Subtitle as well as a case status hotline.

 

 

Subtitle C – Managing the Border and Protecting Border Communities.

 

Section 2301. Expediting Legitimate Trade and Travel at Ports of Entry.

 

DHS is authorized to develop a plan to expedite trade and travel screening while enhancing the ability to ID drugs and contraband at ports of entry (POEs). This section outlines the components of the plan.

 

 

Section 2302. Deploying Smart Technology at the Southern Border.

 

DHS is authorized to implement a strategy to manage and secure the southern border by deploying smart technology. This section outlines the components of that strategy.

 

 

Section 2303. Independent Oversight on Privacy Rights.

 

The DHS IG shall conduct oversight to ensure the tech used by CBP serves legitimate purposes and is cost effective.

 

 

Section 2304. Training and Continuing Education.

 

DHS is to set policies and guidelines to ensure CBP and ICE agents receive training regarding accountability, professional and ethical standards, and oversight. Curriculum outlined. Continuous training on a periodic basis on constitutional law and medical training for Border Patrol (which can be credited toward EMT certification).

 

Another program will provide for not fewer than 300 Border Patrol agents to be trained for commercial driver’s licenses to be able to transport detainees to border patrol processing facilities. This must happen within a year of enactment of the bill.

 

 

Section 2305. GAO Study of Waiver of Environmental and Other Laws.

 

The Comptroller General of the US shall study the impact of the authority of DHS (under the 1996 Act) to waive otherwise applicable legal requirements to expedite construction of barriers and roads near US borders and the environmental impact and impact on Indian lands and border communities.

 

 

Section 2306. Establishment of Border Community Stakeholder Advisory Committee.

 

A new Border Community Advisory Committee is established within DHS. The makeup and duties of the committee are described. Authorizes appropriation of sums as needed to implement this section.

 

 

Section 2307. Rescue Beacons.

 

CBP shall deploy self-powering 9-1-1 cellular rescue beacons along the border to mitigate migrant deaths.

 

 

Section 2308. Use of Force.

 

DHS and DOJ’s Assistant AG for Civil Rights, shall issue policies governing the use of force by DHS personnel. Reporting will be required for the public within 24 hours after any use  of force incident.

 

 

Section 2309. Office of Professional Responsibility.

 

CBP shall set up an Office of Professional Responsibility to ensure 1 officer per 30 officers to investigate criminal and administrative matters and misconduct by CBP officers.

 

 

Subtitle D – Improving Border Infrastructure for Families and Children; Cracking Down on Criminal Organizations

 

Section 2401. Humanitarian and Medical Standards for Individuals in US Customs and Border Protection Custody.

 

DHS, in coordination with HHS, and consulting with experts, shall develop protocols for basic minimum standards of care for those in CBP custody. Subjects covered will include medical care; water, sanitation and hygiene; food and nutrition; clothing and shelter; reasonable sleeping quarters; information about available services and legal rights; and freedom to practice one’s religion.

 

 

Section 2402. Child Welfare at the Border.

 

DHS, consulting with other agencies and outside experts, shall develop additional guidelines for the treatment of children in the custody of CBP based on the principle of “what’s in the best interest of the child.”

 

 

Section 2403. Office of Inspector General Oversight.

 

Within 6 months of enactment, the DHS IG, in coordination with HHS, shall submit a report to Congress regarding implementation of this subtitle

 

 

Section 2404. Enhanced Investigation and Prosecution of Human Smuggling Networks and Trafficking Organizations.

 

DOJ and DHS shall expand collaboration on investigating and prosecuting human smuggling networks and trafficking organizations targeting migrants, asylum seekers and unaccompanied children.

 

 

Section 2405. Enhanced Penalties for Organized Smuggling Schemes.

 

New criminal offense for knowingly directing or participating in a scheme to cause 10+ people to enter the US at the time at a place other than a designated port of entry. Punishable by up to 15 years and a fine. Bulk cash smuggling into the US punishable with enhanced fines.

 

 

Section 2406. Expanding Financial Sanctions on Narcotics Trafficking and Money Laundering.

 

Treasury, DOJ, DOD, and the CIA shall expand investigations, intelligence collection and analysis regarding narcotics trafficking and Foreign Nationals who provide support.

 

 

Section 2407. Support for Transnational Anti-Gang Task Forces for Countering Criminal Gangs.

 

The FBI, DEA and DHS, in coordination with DOS, shall expand the use of task forces that seek to address transnational crime perpetrated by Central American gangs.

 

 

Section 2408. Hindering Immigration, Border, and Customs Controls.

 

Creates a new criminal offense to knowingly surveil, track, monitor, or transmit the location, movement, or activities of any officer or employee of a law enforcement agency with the intent to gain financially and violate immigration law or customs and trade laws of the US or laws relating to controlled substances, agriculture or monetary instruments. Punishable by up to 5 years.

 

New offense for destroying US border controls (fences, barriers, cameras, etc.). Also barred from making things designed to evade a US border control. Punishable by up to 5 years.

 

 

TITLE III – REFORM OF THE IMMIGRANT VISA SYSTEM

 

Subtitle A – Promoting Family Reunification

 

Section 3101. Recapture of Immigrant Visas Lost to Bureaucratic Delay.

 

Recaptures unused family-based green cards and allocates to family immigrant categories. Repeals the provision that subtracts the number of immediate relatives admitted in the prior year so effectively lifts the FB cap from 226,000 to 480,000.

 

The worldwide level of employment-based immigrants is increased from 140,000 to 170,000.

 

Recaptures unused employment-based green cards and allocates to employment categories.

 

This section becomes effective beginning in FY 2022 (October 1, 2021 – September 30, 2022).

 

 

Section 3102. Reclassification of spouses and Minor Children of Lawful Permanent Residents as Immediate Relatives.

 

The F-2A category (spouses and minor children of permanent residents) becomes an immediate relative category. Treats children born abroad to an immediate relative parent as an immediate relative if accompanying the parent was admitted in a family-based category. A noncitizen who was the child or parent of a USC or child of an LPR on the date of such citizen or LPR’s death remains an immediate relative if the noncitizen child or parent files a petitioner within 2 years or before 21. A noncitizen who was the spouse of a USC or LPR for 2+ years on the date of death of the spouse (or less than 2 years if you can show the marriage was bona fide) and each child of such noncitizen shall be considered immediate relative if a petition is filed before the spouse remarries. Noncitizens who self-petition as abused spouses or children remain immediate relatives if the citizen or LPR spouses or parent loses citizenship or LPR status because of the abuse. A noncitizen born to an LPR during a temporary visit abroad is an immediate relative.

 

Family-based category limits will now be expressed in calculations:

F-1 – 26.5%; F-2 – 16.8%;  F-3 – 16.8%; F-4 – 39.9%; No more F-2A (see above) and category called F-2.

 

 

Section 3103. Adjustment of Family-Sponsored Per-Country Limits.

 

Per-county limit raised from 7% to 20% and from 2% to 5% for dependent areas.

 

 

Section 3104. Promoting Family Unity.

 

Repeal of the 3/10 year bars for overstays of 180 days or a year. Making a false claim to citizenship is not a ground of inadmissibility or ground for removal if the claim was made before the age of 21.

 

 

Section 3105. Relief for Orphans, Widows, Widowers.

 

Noncitizens who were immediate relatives, family-sponsored immigrants, derivative beneficiaries of the spouse/child of a refugee, will have their immigrant visa adjudicated as if the death had not occurred. The immigrant visa will remain valid after the death. If the death occurs before the effective date of this section, a motion to reopen will be permitted without a fee and the bars to entry will not apply.

 

Those excluded, deported, removed or voluntarily departed before the date of enactment shall be eligible for parole into the US based on DHS’ discretion and the person will be able to file an adjustment application.

 

Naturalization applications will continue to be eligible to naturalize after three years even if the USC spouses has died.

 

Affidavits of support may be adjudicated even if the sponsor dies and eliminates the requirement that the surviving spouse lives in the US at the time of death.  Surviving spouses are exempt from the public charge rule.

 

 

Section 3106. Exemption from Immigrant Visa Limit for Certain Veterans Who Are Natives of the Philippines.

 

Those eligible in the F-1 or F-3 family categories who have a parent who naturalized as a Filipino veteran are not subject to numerical limits.

 

 

Section 3107. Fiancée or Fiancé Child Status Protection.

 

Freezes a K-2 child’s age on the day an I-129F is filed. Allows fiancés and their children to apply to adjust status without the requirements of a K-1 visa, immigrant visa, or labor certification. Protects minor child of a K-1 from aging out. This is retroactive going back to the 1986 Immigration Marriage Fraud Amendments. Cases may be reopened if motions filed within 2 years of enactment of this bill.

 

 

Section 3108. Retention of Priority Dates.

 

Noncitizens who age out of a F-2 or accompanying/following to join keep the original priority date based up receipt of the original family-based or employment-based petitioner for which either parent was a beneficiary.

 

The priority date for any family-based or employment-based petition shall be the date of filing the petition (or labor certification). The beneficiary shall retain his or her earliest priority date based on any petition filed on his or her behalf that was approvable on the date on which it was filed, regardless of the category or subsequent petitions.

 

 

Section 3109. Inclusion of Permanent Partners.

 

Makes “Permanent Partners” equivalent to spouses for immigration purposes. A “permanent partner” is a person 18 or older who

 

  • Is in a committed, intimate relationship with another individual 18 years or older in which both parties intend a lifelong commitment;
  • Is financially interdependent with such other individual, except DHS or DOS can waive this on a case-by-case basis for good cause;
  • Is not married to or in a permanent partnership with anyone else;
  • Is unable to marry in the home country;
  • Is not a 1st, 2nd or 3rd degree blood relation.

 

 

Section 3110. Definition of Child.

 

Allows stepchildren and children of a noncitizen permanent partner to qualify as a child if the child was under 18 when the permanent partnership was formed. If the child is adopted by the noncitizen permanent partner while the child was under 16, the child can qualify as a “child” if in the legal custody of the noncitizen and under 18 when the permanent partnership was formed.

 

Section 3111. Termination of Conditional Permanent Resident Status for Certain Noncitizen Permanent Partners and Sons and Daughters Upon Finding Qualifying Permanent Partnership Improper.

 

Conditional resident status may be terminated for permanent partners in the same way as spouses.

 

 

Section 3112. Nationality at Birth.

 

Parentage is based on legal recognition of the parent-child relationship formed within the first year of life regardless of genetic or gestational relationship. Deals with problem with IVF or surrogate relationships. As long as one parent is legally recognized and the marriage occurred before the child’s birth, the other parent is recognized for immigration purposes.

 

 

Subtitle B – National Origin-based Antidiscrimination for Nonimmigrants

 

Section 3201. Expansion of Nondiscrimination Provision.

 

Religion is an impermissible ground for discrimination in administering immigration law unless expressly authorized by the statute (e.g. religious workers).

 

 

Section 3202. Transfer and Limitations on Authority to Suspend or Restrict the Entry of a Class of Noncitizens.

 

This restricts the President’s ban authority under 212(f). DHS must base on specific and credible facts, that the entry of any noncitizens into the US would undermine security or public safety, or the preservation of human rights, democratic processes or institutions, international stability, the President may temporarily suspend the entry of affected people or impose any restriction on entry the President considers appropriate. The suspension or restriction must be tailored to address the specific government interest, specify a duration, consider waivers to any class-based restriction and apply a rebuttable presumption in favor of granting family-based and humanitarian waivers. The President must consult with Congress and provide specific evidence supporting the need to use 212(f) authority. DHS must provide a briefing and written report to Congress within 48 hours of exercising 212(f) authority. If the President misses the deadline, the ban shall immediately terminate. People negatively impacted who are in the US can sue and a class action is also possible. Airlines that don’t comply may be banned from transporting noncitizens to the US. The President must report to Congress every 30 days or the ban will automatically terminate.

 

A ban cannot authorize the President to act in a manner inconsistent with the policy decisions expressed in immigration law.

 

 

Subtitle C – Diversity Immigrants

 

Section 3301. Increasing Diversity Visas.

 

The allotment of DV visas is increased from 55,000 to 80,000.

 

 

Subtitle D – Reforming Employment-based Immigration

 

Section 3401. Doctoral STEM Graduates from Accredited United States Universities.

 

Noncitizens who earn a doctoral degree in a field of science, technology, engineering or mathematics from an accredited US university are not subject to numerical limits. STEM refers to the Department of Education’s Classification of Instructional Programs taxonomy within the groups of computer and information sciences, engineering, mathematics and statistics, physical sciences, and accounting. DHS can add fields at its discretion. NOTE – Biological and biomedical sciences are left out as are health professions.

 

 

Section 3402. Addressing Visa Backlogs.

 

Noncitizens who are beneficiaries (or derivative beneficiaries) of an approved immigrant petition with a priority date that is more than ten years before the noncitizen’s application for admission as an immigrant or for adjustment of status are not subject to numerical limits. This takes effect 60 days after enactment of the bill.

Spouses and children will no longer count against employment-based numerical limits in family, employment and DV categories.

 

Section 3403. Eliminating Employment-based Per Country Caps

 

Eliminates employment-based country caps. Effective beginning in FY 2022

 

 

Section 3404. Increased Immigrant Visas for Other Workers.

 

Allocates the extra 30,000 employment-based numbers noted above to EB-3 other workers.

 

 

Section 3405. Flexible Adjustments to Employment-Based Immigrant Visa Program.

 

DHS and DOL may establish a procedure to temporarily limit EB-2 and EB-3 in geographic areas or labor market sectors experiencing high levels of unemployment.

 

 

Section 3406. Regional Economic Development Immigrant Visa Pilot Program.

 

Establishes a pilot program for Regional Economic Development Visas. DHS may establish a pilot program for the annual admission of 10,000 immigrants whose employment is essential to the economic development strategies of cities or counties in which they will live or work. Labor certifications will still be required. The program sunsets in five years. Note that this is a program that will operate outside the EB categories so the 10,000 allotment does not affect the EB categories. DHS and DOL must issue implementing regulations.

 

 

Section 3407. Wage-Based Consideration of Temporary Workers.

 

In determining the order of allocating H-1Bs subject to the cap, DHS and DOL may issue rules to establish procedures for prioritizing such visas based on the wages offered by employers.

 

 

Section 3408. Clarifying Dual Intent for Postsecondary Students.

 

Makes F-1s dual intent if a student is enrolled full-time course of study.

 

 

Section 3409. H-4 Visa Program.

 

H-4 children may extend their status beyond 6 years (and beyond age 21) if the parent is maintaining his or her status and the child was younger than 18 when first granted nonimmigrant status. For purposes of adjusting status as a derivative, the H-4’s age at the time of filing the parent’s immigrant petition (or labor certification) will determine eligibility.

 

All H-4 spouses and children are eligible for EAD cards under a new INA Section 214(s)

 

 

Section 3410. Extensions Related to Pending Petitions.

 

A new INA Section 241(t) is added that says the authorized stay of a noncitizen previously issued a visa or NIV status as an F, H-1B, L or O visa may extend their status if 365 days or more have elapsed since the filing of a PERM or an employment-based immigrant petition (I-140/I-360/I-526). DHS may extend the stay in 1-year increments until a final decision is made to deny the immigrant petition or the later immigrant visa or adjustment of status petition.

 

DHS shall authorize any noncitizen whose stay is extended under this subjection to engagement in employment in the US and provide an EAD for such reason.

 

 

Subtitle E – Promoting Immigrant and Refugee Integration

 

Section 3501. Definition of Foundation.

 

Refers to a new United States Citizenship and Integration Foundation.

 

 

Section 3502. United States Citizenship and Integration Foundation.

 

DHS shall establish a nonprofit corporation – the Foundation. The Foundation may solicit donations and work with DHS and USCIS and administer donations to the Foundation. The Foundation’s purpose is

 

  • To spur innovation in promoting and expanding citizenship preparation programs;
  • To identify best practices in citizenship promotion and preparation;
  • To support direct assistance for noncitizens seeking LPR status or to naturalize; and
  • To coordinate immigrant integration with State and local entities

 

The Foundation will make services available to low-income and underserved LPR populations.

 

USCIS’ Director and 10 people appointed by the USCIS Director will comprise the Foundation’s Council. They’ll have 4-year terms (but 5 of the 1st 10 will get two year appointments). Renewals possible. An executive director will be selected by the Council for a 6-year term.

 

The Foundation will be established and operational not later than 1 year after enactment.

 

 

Section 3503. Pilot Program to Promote Immigrant Integration at State and Local Levels.

 

The Chief of USCIS’ Office of Citizenship shall establish a pilot program through which the Chief may award grants, on a competitive basis, to States and local governments and other qualifying organizations (schools, private organizations, community-based groups, nonprofits) to establish new immigrant councils to carry out programs to integrate new immigrants. [Typo in the document repeats this]

 

 

Section 3504. English as a Gateway to Integration Grant Program.

 

The Department of Education shall award English as a Gateway to Integration grants to promote adult English language learning and help prepare for the naturalization examination.

 

 

Section 3505. Workforce Development and Shared Prosperity Grant Program.

 

Directs the Department of Education to award grants to qualifying entities working in collaboration with State and local governments promoting the economic integration of immigrants and refugees and their families.

 

 

Section 3506. Existing Citizenship Education Grants.

 

$25 million is authorized for awarding grants to public or private nonprofit entities for citizenship education and training.

 

 

Section 3507. Grant Program to Assist Eligible Applicants.

 

DHS shall establish within USCIS a program to award grants to nonprofits to assist applicants for qualifying under Sections 245B, 245C, 245D, 245E, and 245F of this bill (the legalization programs). $50,000,000 is to be made available from the Immigration Examinations Fee Account of INA Section 286(m).

 

Section 3508. Study on Factors Affecting Unemployment Opportunities for Immigrants and Refugees With Professional Credentials Obtained in Foreign Countries.

 

DOL, in coordination with DOS, DOEd, HHS, Commerce, DHS, IRS and SSA shall conduct a study on this.

 

 

Section 3509. In-State Tuition Rates for Refugees, Asylees, and Certain Special Immigrants.

 

The Higher Education Act of 1965 is amended to bar states from receiving assistance under the Act if they don’t offer refugees, asylees and those with special immigrant status in a state the same tuition rate as charged for other residents. This takes effect for the first period of enrollment beginning after 1/1/2021.

 

 

Section 3510. Waiver of English Requirement for Senior New Americans.

 

Exempts from the English and civics/history requirement –

 

  1. any person who is unable to comply because of physical or mental disability, including developmental or intellectual disability or
  2. a person older than 65 who has been living in the US for at least five years after being admitted for permanent residence.

 

Exempts from the English requirement any person who is older than 50 and has been living in the US at least 20 years after being admitted for permanent residence OR is older than 55 and has been living in the US for at least 15 years since being admitted for permanent residence OR is older than 60 and has been living in the US for at least 10 years since being an LPR.

 

DHS may waive, on a case-by-case basis, the civics/history test for people over 60 in the US for at least 10 years since becoming an LPR.

 

 

Section 3511. Naturalization for Certain United States High School Graduates.

 

A new INA Section 321 waives the English and civics/history requirements for people who have completed grades 9 through 12 and graduated with a high school diploma. The curriculum must be deemed to reflect a knowledge of history, government and civics. Regulations must be issued within 180 days of enactment of the bill.

 

 

Section 3512. Naturalization Ceremonies.

 

USCIS, the National Park Service and the National Archives shall develop a strategy to enhance public awareness of naturalization ceremonies.

 

 

Section 3513. National Citizenship Promotion Program.

 

Within a year of enactment of the bill, DHS shall establish a program to promote US citizenship. It will involve outreach to LPRs to encourage them to apply to become citizens.

 

 

Section 3514. Authorization of Appropriations for Foundation and Pilot Program.

 

Authorizes the needed funds for the first 2 years for the integration Foundation and Pilot Program.

 

 

TITLE IV – IMMIGRATION COURTS, FAMILY VALUES, AND VULNERABLE INDIVIDUALS

 

Subtitle A – Promoting Efficient Processing of Asylum Seekers, Addressing Immigration Court Backlogs, and Efficiently Repatriating Migrants Ordered Removed.

 

Section 4101. Expanding Alternatives to Detention.

 

DHS shall expand the use of the family case management program for apprehended noncitizens who are members of family units arriving in the US and develop community-based programs to increase the number of enrollees in the alternatives to detention program. DHS will contract with nonprofits to operate the program. DHS will ensure enrollees are provided legal orientation training.

 

 

Section 4102. Eliminating Immigration Court Backlogs.

 

Immigration judge shortages will be addressed by increasing the total number of IJs by at least 55 during FYs 2021, 2022, 2023, and 2024.

 

The AG shall the new IJs and BIA members are highly qualified experts on immigration law and trained to conduct fair, impartial adjudications in accordance with due process requirements. The goal is to hire half from the government sector and half from the private sector, including nonprofits, the private bar, or academia.

 

The AG shall ensure each judge has sufficient staff, tech and security, and courtroom facilities.

 

The BIA staff attorney ranks are to increase by not fewer than 23 attorneys during each of FYs 2021, 2022, and 2023.

 

A GAO report will be issued studying the impediments to the efficient hiring of IJs and propose solutions to Congress.

 

 

Section 4103. Improved Training for Immigration Judges and Members of the Board of Immigration Appeals.

 

To ensure efficient and fair proceedings, EOIR shall establish or expand mandatory training programs for IJs and BIA members. Curriculum will include training on age, gender and trauma sensitivity. Continuing legal education programs on immigration law and training on properly crafting and dictating decisions.

 

 

Section 4104. New Technology to Improve Court Efficiency.

 

The Director of EOIR shall modernize its case management, video-teleconferencing, digital audio recording, and related tech systems including by allowing for e-filing.

 

 

Section 4105. Court Appearance Compliance and Legal Orientation.

 

DHS and DOJ shall establish procedures to ensure that legal orientation programs are available to all noncitizens detained by DHS. That program will provide information on the immigration system and on legal resources available to noncitizens and lists of potential legal services providers.

 

The AG shall expand the information help desk program to all courts so noncitizens who are not detained and who have pending asylum claims have access to information about their immigration status.

 

 

Section 4106. Improving Court Efficiency and Reducing Costs By Increasing Access to Legal Information.

 

Noncitizens have a right to being represented by counsel of their choice. The AG will be authorized to appoint or provide counsel at government expense in proceedings conducted under INA sections 235, 236, 238, 240 or 241. Noncitizens will be expeditiously provided a complete copy of all relevant documents in the possession of DHS. Removal proceedings may not proceed until the noncitizen has been given these items. DHS will ensure that noncitizens have access to counsel inside all immigration detention and border facilities.

 

The AG shall appoint, at government expense, counsel to represent any noncitizen financially unable to obtain adequate representation including children, particularly vulnerable people (e.g. disabled; abuse, torture or violence victim; pregnant or lactating women; or parent of a US citizen minor).

 

If the AG has consolidated cases and one party has counsel while the other does not, the AG may appoint the same counsel to represent both (unless there’s a demonstrated conflict of interest.

 

Rules under this section will be established in no more than 180 days from the date of enactment. DHS may impose a $25 fee.

 

 

Section 4107. Facilitating Safe and Efficient Repatriation.

 

DOS, in consultation with DHS and USAID, shall coordinate with the governments in Central America to promote successful reintegration of families, unaccompanied noncitizens repatriated to the countries of origin.

 

 

Subtitle B – Protecting Family Values and Monitoring and Caring for unaccompanied Noncitizen Children After Arrival.

 

Section 4201. Definition of Local Educational Agency.

 

Has the meaning given in section 8101 of the Elementary and Secondary Education Act of 1965.

 

 

Section 4202. Responsibility of Sponsor for Immigration Court Compliance and Child Well-Being.

 

HHS and the AG shall establish a process for giving a legal orientation program to each sponsor of an unaccompanied noncitizen child before the child is placed with the sponsor. The legal orientation program should cover the rights of the child, sponsor obligations and other subjects HHS and the AG deem necessary.

 

 

Section 4203. Funding to School Districts for Unaccompanied Noncitizen Children

 

The Department of Education shall award grants to local school districts to help immigrant children, including unaccompanied children.

 

 

Section 4204. School Enrollment.

 

To get federal funding, a school district must take measures to ensure unaccompanied minors are enrolled in school within a week of requesting enrollment and remove barriers to enrollment and participation (including barriers related to documentation, age and language).

 

 

Subtitle C – Admission and Protection of Refugees, Asylum Seekers, and Other Vulnerable Individuals

 

Section 4301. Elimination of Time Limits on Asylum Applications.

 

The 1-year time limit to apply for asylum is repealed. Persons previously denied may reapply for asylum if the person can demonstrate changed circumstances.  Those denied in the 2 years prior to enactment can file a motion to reopen a denied asylum claim if denied based on the 1-year rule, was granted withholding of removal to the noncitizen’s home country, has not obtained LPR status in the US, is not subject to the safe third country exception or to a bar to asylum and was not denied asylum as a matter of discretion.

 

 

Section 4302. Increasing Annual Numerical Limitation on U Visas.

 

Increases the U visa annual cap from 10,000 to 30,000.

 

 

Section 4303. Employment Authorization for Asylum Seekers and Other Individuals.

 

DHS shall authorize employment for asylum applicants who are not detained and have filed non-frivolous applications. EADs won’t be granted until the time period set by DHS (which may not be more than 180 days from the date of filing). Employment authorization remains valid until the date the case is denied, including any administrative or judicial review.

 

DHS shall authorize employment for people who have been granted withholding of removal withholding or deferral of removal under the Convention Against Torture who are not detained and whose applications are not frivolous. EADs remain will be valid for a 2-year period and renewable in 2-year increments. EADs won’t be granted until the time period set by DHS (which may not be more than 180 days from the date of filing). Employment authorization remains valid until the date the case is denied, including any administrative or judicial review.

 

 

Section 4304. Enhanced Protection for Individuals Seeking T Visas, U Visas, and Protection Under VAWA.

 

DHS will grant employment authorization to U and T visa applicants beginning on the date that is the earlier of the date on which the T or U visa is approved or a date determined by DHS that’s not later than 180 days after the noncitizen filed the application.

 

Individuals with non-frivolous U or T applications, TPS, special rule cancelation of removal for certain abused spouses or children, protection under a provision for battered spouses or children of nonimmigrants, or a VAWA self-petitioner shall not be removed from the US until the date on which there is a final denial of the noncitizen’s application for status, including any administrative or judicial review. They also shall not be detained, though DHS may rebut this presumption with clear and convincing evidence that alternatives to detention won’t work to ensure the person’s appearance at removal hearings or that the person is a threat to another person or the community. Being charged with a crime alone is not enough.

 

 

Section 4305. Alternatives to Detention.

 

DHS shall create programs that provide alternatives to detaining noncitizens which offer supervision and options, including community-based supervision programs and community support. DHS may contract with nongovernmental community-based organizations.

 

 

Section 4306. Notification of Proceedings.

 

DHS must notify both the noncitizen and the noncitizen’s lawyer if there is a change in the place or time of removal proceedings.

 

 

Section 4307. Conversion of Certain Petitions.

 

Allows Iraqi/Afghani special immigrant petitions to continue until the numerical limit is reached.

 

[NOTE – The distributed summary incorrectly lists an appropriations authorization provision as Section 4307. That is now at Section 4311.]

 

 

Section 4308. Improvements to Application Process for Afghan Special Immigrant Visas.

 

Allows individuals employed by or on behalf of the US or international military forces who filed petitions before 9/30/2015 to qualify for a special immigrant visa with only 1 year of required employment versus 2 years. Decisions must be made within 9 months of filing the petition.

 

 

Section 4309. Special Immigrant Status for Certain Surviving Spouses and Children.

 

Creates a new special immigrant category for surviving spouses and children of US government employees who served for at least 15 years or was killed in the line of duty.

 

Allows surviving spouses and children of Afghan and Iraqi special immigrant applicants as long as the employment requirements for the deceased spouse or parent can be demonstrated.

 

 

Section 4310. Special Immigrant Status for Certain Syrians Who Worked for the United States Government in Syria.

 

DHS may grant special immigrant visas to noncitizens who are citizens or nationals of Syria or a stateless person residing in Syria who was employed by or on behalf of the US Government in Syria for a period of at least 1 year beginning 1/1/2014 and has obtained a favorable written recommendation from a US citizen US Armed Forces or US Government supervisor. Spouses and children are also eligible and may petition if the principal spouse or parent has died. Up to 5,000 visas are available in any of the first 5 years beginning after the date of enactment and unused numbers carry forward. The person must pass background checks and otherwise be admissible. No applications fees will be charged. DOS is to make reasonable efforts to protect applicants in imminent danger. Applications are to be adjudicated within 9 months.

 

 

Section 4311. Authorization of Appropriations.

 

Sums needed to carry out the reduction in the backlog of asylum application are to be appropriated.

 

 

TITLE V – EMPLOYMENT AUTHORIZATION AND PROTECTING WORKERS FROM EXPLOITATION.

 

Section 5101. Commission on Employment Authorization.

 

An Employment Authorization Commission is to be established. It will have 10 members. 6 must be appointed by the President and 2 by the President pro tempore of the Senate. The Senate appointment must include 1 person representing employers and 1 representing workers. The House Speaker will appoint 2 with 1 representing workers and 1 representing employers. Appointments will be made within 180 days of enactment.

 

The EAC shall make recommendations to the President and Congress regarding policies to verify the eligibility of noncitizens for employment in the US. It will evaluate methods to verify employment that respect the rights of employment-authorized workers and free from discrimination. The EAC will also look at error rates for E-Verify and its impact on various populations. A report will be issued within 180 days after all members have been appointed. The EAC will terminate in two years.

 

 

Section 5102. Power Act.

 

U visas will be available to those who have been victims of or is a material witness to a bona fide workplace claim and is helping law enforcement, DHS, EEOC, DOL, OSHA and other government agencies investigating or prosecuting the claim. Fees will not be charged to applicants. Adjustment of status will not be available if the person ultimately did not cooperate. People waiting on a U visa based on this section will not be removable.

 

If DHS conducts an enforcement action at a facility about which a workplace claim has been filed, or as a result of information provided to DHS in retaliation against employees for exercising their rights related to a workplace claim, DHS shall ensure that any noncitizens arrested or detained who are necessary for the investigation or prosecution are not removed from the US until after DHS notifies law enforcement and provides them an opportunity to interview such noncitizens.

 

Noncitizens who file a workplace claim who are material witnesses or who have filed U visas under this section will have their removals stayed and be entitled to employment authorization until the resolution of the workplace claim or denial of the U visa. Exceptions if the noncitizen has a felony conviction or the workplace claim was filed in bad faith. The stay on removal will last until the resolution of the workplace claim or denial of the U visa and shall be extended by DHS for up to 10 years.

 

 

Section 5103. Additional Civil Penalty.

 

A new penalty is added to INA Section 274A if an employer engages in civil violations of labor laws including laws concerning wages and hours, labor relations, family and medical leave, occupational health and safety, civil rights, or nondiscrimination and an enforcing agency has made a finding of a violation with respect to an unauthorized worker. The fine will be up to $5000 for each unauthorized noncitizen.

 

 

Section 5104. Continued Application of Workforce and Labor Protection Remedies.

 

A new Section 274A(e)(12) is added to the INA. Notwithstanding an employee’s status as an unauthorized noncitizen during the time of relevant employment or during a back pay period, all rights and remedies are available under Federal State, or local labor law and a court may not prohibit an employee from pursuing other causes of action giving rise to liability in a civil action.

 

 

Section 5105. Prohibition on Discrimination Based on National Origin or Citizenship Status.

 

It is an unfair immigration-related employment practice for a person, other entity, or employment agency to discriminate against any individual (other than an unauthorized noncitizen) because of such individual’s national origin or citizenship status with respect to the hiring of the individual for employment, verification of the individual’s eligibility to work in the US, or the discharging of the individual from employment.

 

Exceptions apply for employers with 3 or fewer employees, the discrimination is covered under Section 703 of the Civil Rights Act of 1964, or discrimination is based upon an individual’s citizenship status if such discrimination is required to comply with a Federal, State, or local law related to law enforcement, comply with a contract with a Federal agency, or is determined by DHS or DOJ to be essential for an employer to do business with a government agency.

 

It’s not an unfair immigration-related employment practice for an employer to prefer to hire, recruit, or refer for a fee an individual who is a citizen of the US over another individual who is a noncitizen if the 2 individuals are equally qualified.

 

It’s an unfair immigration-related employment practice

 

  • to use the employment verification System to deny workers employment or post-employment benefits;
  • to misuse the System to discriminate based on national origin or citizenship status;
  • to require an employee or prospective employee to use any self-verification feature of the System and provide self-verification results;
  • to use an immigration status verification system for purposes of verifying employment eligibility;
  • to grant access to document verification or System data to an individual not authorized to have success access; or
  • to fail to take responsible safeguards against unauthorized loss or alteration of System data.

 

It’s an unfair immigration-related employment practice to intimidate, threaten, coerce, or retaliate against any individual in order to interfere with any rights under this section.

 

It’s an unfair immigration-related employment practice to request an individual submit specific documents, more documents, or different documents than are required under the I-9 rules or to refuse to honor documents that reasonably appear on their face to be legitimate.

 

It’s an unfair immigration-related immigration practice to employers required to maintain records documenting employment, including dates or hours of work and wages received, to fail to provide such records to any employee to whom the records pertain when requested by the employee.

 

Individuals authorized to be employed in the US may not be denied a professional, commercial or business license on the basis of his or her immigration status.

 

EEOC is directed to refer all matters alleging unfair immigration-related immigration practice claims to Immigrant and Employment Rights Section of the Department of Justice.

 

Fines for the offenses described in this section will be between $2000 and $5000 for each individual subjected to an unfair practice; penalties of $4000 to $10,000 for a second violation; penalties of $8,000 to $25,000 for more than two violations and $500 to $2,000 for violations of Sections 274B(a)(4)-(7). All fines are fees to be adjusted periodically to account for inflation.

 

 

Section 5106. Fairness for Farmworkers.

 

A new section is added to the Fair Labor Standards Act (FLSA) that says no employer shall employ any employee in agricultural who in any workweek is engaged in commerce for a workweek that is longer than –

 

  • Beginning 1/1/2022, 55 hours per week
  • Beginning 1/1/2023, 50 hours per week
  • Beginning 1/1/2024, 45 hours per week

 

The implementation date is delayed by three years for employers with fewer than 25 employees. The exemption for tobacco workers from overtime pay is repealed.

 

Repeals the section of the FLSA that excludes certain agricultural workers from the minimum wage/maximum hour requirements. This section is effective on staggered dates depending on the size of the employer.

 

 

Section 5107. Protections for Migrant and Seasonal Laborers.

 

Section 501 of the Migrant and Seasonal Agricultural Worker Protection Act is amended to change the fines and jail terms for violations.

 

 

Section 5108. Directive to the United States Sentencing Commission.

 

The US Sentencing Commission is directed to create or amend sentencing guidelines to increase penalties imposed on persons convicted of offenses under Section 274A of the INA and other worksite protection laws. Sentencing enhancements are directed if the offense involves the confiscation of ID documents: corruption, bribery, extortion, or robbery; sexual abuse; serious bodily injury; an intent to defraud; or a pattern of conduct involving multiple violations of law that create a health or safety risk to a victim or denies payments due to victims for their work.

 

 

Section 5109. Labor Law Enforcement Fund.

 

A Labor Law Enforcement Account is created to fund the DOL’s enforcement of workplace laws through random audits of employers with a history of employing unauthorized workers or H-2As and H-2Bs.