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Page 2 of 2 TITLE VII--EMPLOYMENT ELIGIBILITY VERIFICATION
SEC. 701. EMPLOYMENT ELIGIBILITY VERIFICATION SYSTEM.
(a) In General- Section 274A(b) of the Immigration and Nationality Act (8 U.S.C. 1324a(b)) is amended by adding at the end the following:
`(7) EMPLOYMENT ELIGIBILITY VERIFICATION SYSTEM-
`(A) IN GENERAL- The Secretary of Homeland Security shall establish and administer a verification system through which the Secretary (or a designee of the Secretary, which may be a nongovernmental entity)--
`(i) responds to inquiries made by persons at any time through a toll-free telephone line and other toll-free electronic media concerning an individual's identity and whether the individual is authorized to be employed; and
`(ii) maintains records of the inquiries that were made, of verifications provided (or not provided), and of the codes provided to inquirers as evidence of their compliance with their obligations under this section.
`(B) INITIAL RESPONSE- The verification system shall provide verification or a tentative nonverification of an individual's identity and employment eligibility within 3 working days of the initial inquiry. If providing verification or tentative nonverification, the verification system shall provide an appropriate code indicating such verification or such nonverification.
`(C) SECONDARY VERIFICATION PROCESS IN CASE OF TENTATIVE NONVERIFICATION- In cases of tentative nonverification, the Secretary shall specify, in consultation with the Commissioner of Social Security, an available secondary verification process to confirm the validity of information provided and to provide a final verification or nonverification within 10 working days after the date of the tentative nonverification. When final verification or nonverification is provided, the verification system shall provide an appropriate code indicating such verification or nonverification.
`(D) DESIGN AND OPERATION OF SYSTEM- The verification system shall be designed and operated--
`(i) to maximize its reliability and ease of use by persons and other entities consistent with insulating and protecting the privacy and security of the underlying information;
`(ii) to respond to all inquiries made by such persons and entities on whether individuals are authorized to be employed and to register all times when such inquiries are not received;
`(iii) with appropriate administrative, technical, and physical safeguards to prevent unauthorized disclosure of personal information; and
`(iv) to have reasonable safeguards against the system's resulting in unlawful discriminatory practices based on national origin or citizenship status, including--
`(I) the selective or unauthorized use of the system to verify eligibility;
`(II) the use of the system prior to an offer of employment; or
`(III) the exclusion of certain individuals from consideration for employment as a result of a perceived likelihood that additional verification will be required, beyond what is required for most job applicants.
`(E) RESPONSIBILITIES OF THE COMMISSIONER OF SOCIAL SECURITY- As part of the verification system, the Commissioner of Social Security, in consultation with the Secretary of Homeland Security (and any designee of the Secretary selected to establish and administer the verification system), shall establish a reliable, secure method, which, within the time periods specified under subparagraphs (B) and (C), compares the name and social security account number provided in an inquiry against such information maintained by the Commissioner in order to validate (or not validate) the information provided regarding an individual whose identity and employment eligibility must be confirmed, the correspondence of the name and number, and whether the individual has presented a social security account number that is not valid for employment. The Commissioner shall not disclose or release social security information (other than such verification or nonverification) except as provided for in this section or section 205(c)(2)(I) of the Social Security Act.
`(F) RESPONSIBILITIES OF THE SECRETARY OF HOMELAND SECURITY- (i) As part of the verification system, the Secretary of Homeland Security (in consultation with any designee of the Secretary selected to establish and administer the verification system), shall establish a reliable, secure method, which, within the time periods specified under subparagraphs (B) and (C), compares the name and alien identification or authorization number which are provided in an inquiry against such information maintained by the Secretary in order to validate (or not validate) the information provided, the correspondence of the name and number, and whether the alien is authorized to be employed in the United States.
`(ii) When a single employer has submitted to the verification system pursuant to paragraph (3)(A) the identical social security account number in more than one instance, or when multiple employers have submitted to the verification system pursuant to such paragraph the identical social security account number, in a manner which indicates the possible fraudulent use of that number, the Secretary of Homeland Security shall conduct an investigation, within the time periods specified in subparagraphs (B) and (C), in order to ensure that no fraudulent use of a social security account number has taken place. If the Secretary has selected a designee to establish and administer the verification system, the designee shall notify the Secretary when a single employer has submitted to the verification system pursuant to paragraph (3)(A) the identical social security account number in more than one instance, or when multiple employers have submitted to the verification system pursuant to such paragraph the identical social security account number, in a manner which indicates the possible fraudulent use of that number. The designee shall also provide the Secretary with all pertinent information, including the name and address of the employer or employers who submitted the relevant social security account number, the relevant social security account number submitted by the employer or employers, and the relevant name and date of birth of the employee submitted by the employer or employers.
`(G) UPDATING INFORMATION- The Commissioner of Social Security and the Secretary of Homeland Security shall update their information in a manner that promotes the maximum accuracy and shall provide a process for the prompt correction of erroneous information, including instances in which it is brought to their attention in the secondary verification process described in subparagraph (C).
`(H) LIMITATION ON USE OF THE VERIFICATION SYSTEM AND ANY RELATED SYSTEMS-
`(i) IN GENERAL- Notwithstanding any other provision of law, nothing in this paragraph shall be construed to permit or allow any department, bureau, or other agency of the United States Government to utilize any information, data base, or other records assembled under this paragraph for any other purpose other than as provided for.
`(ii) NO NATIONAL IDENTIFICATION CARD- Nothing in this paragraph shall be construed to authorize, directly or indirectly, the issuance or use of national identification cards or the establishment of a national identification card.
`(I) FEDERAL TORT CLAIMS ACT- If an individual alleges that the individual would not have been dismissed from a job but for an error of the verification mechanism, the individual may seek compensation only through the mechanism of the Federal Tort Claims Act, and injunctive relief to correct such error. No class action may be brought under this subparagraph.
`(J) PROTECTION FROM LIABILITY FOR ACTIONS TAKEN ON THE BASIS OF INFORMATION- No person or entity shall be civilly or criminally liable for any action taken in good faith reliance on information provided through the employment eligibility verification mechanism established under this paragraph.'.
(b) Repeal of Provision Relating to Evaluations and Changes in Employment Verification- Section 274A(d) (8 U.S.C. 1324a(d)) is repealed.
SEC. 702. EMPLOYMENT ELIGIBILITY VERIFICATION PROCESS.
Section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a) is amended--
(1) in subsection (a)(3), by inserting `(A)' after `DEFENSE- ', and by adding at the end the following:
`(B) FAILURE TO SEEK AND OBTAIN VERIFICATION- In the case of a person or entity in the United States that hires, or continues to employ, an individual, or recruits or refers an individual for employment, the following requirements apply:
`(i) FAILURE TO SEEK VERIFICATION-
`(I) IN GENERAL- If the person or entity has not made an inquiry, under the mechanism established under subsection (b)(7), seeking verification of the identity and work eligibility of the individual, by not later than the end of 3 working days (as specified by the Secretary of Homeland Security) after the date of the hiring, the date specified in subsection (b)(8)(B) for previously hired individuals, or before the recruiting or referring commences, the defense under subparagraph (A) shall not be considered to apply with respect to any employment, except as provided in subclause (II).
`(II) SPECIAL RULE FOR FAILURE OF VERIFICATION MECHANISM- If such a person or entity in good faith attempts to make an inquiry in order to qualify for the defense under subparagraph (A) and the verification mechanism has registered that not all inquiries were responded to during the relevant time, the person or entity can make an inquiry until the end of the first subsequent working day in which the verification mechanism registers no nonresponses and qualify for such defense.
`(ii) FAILURE TO OBTAIN VERIFICATION- If the person or entity has made the inquiry described in clause (i)(I) but has not received an appropriate verification of such identity and work eligibility under such mechanism within the time period specified under subsection (b)(7)(B) after the time the verification inquiry was received, the defense under subparagraph (A) shall not be considered to apply with respect to any employment after the end of such time period.';
(2) by amending subparagraph (A) of subsection (b)(1) to read as follows:
`(A) IN GENERAL- The person or entity must attest, under penalty of perjury and on a form designated or established by the Secretary by regulation, that it has verified that the individual is not an unauthorized alien by--
`(i) obtaining from the individual the individual's social security account number and recording the number on the form (if the individual claims to have been issued such a number), and, if the individual does not attest to United States citizenship under paragraph (2), obtaining such identification or authorization number established by the Department of Homeland Security for the alien as the Secretary of Homeland Security may specify, and recording such number on the form; and
`(ii)(I) examining a document described in subparagraph (B); or (II) examining a document described in subparagraph (C) and a document described in subparagraph (D).
A person or entity has complied with the requirement of this paragraph with respect to examination of a document if the document reasonably appears on its face to be genuine, reasonably appears to pertain to the individual whose identity and work eligibility is being verified, and, if the document bears an expiration date, that expiration date has not elapsed. If an individual provides a document (or combination of documents) that reasonably appears on its face to be genuine, reasonably appears to pertain to the individual whose identity and work eligibility is being verified, and is sufficient to meet the first sentence of this paragraph, nothing in this paragraph shall be construed as requiring the person or entity to solicit the production of any other document or as requiring the individual to produce another document.';
(3) in subsection (b)(1)(D)--
(A) in clause (i), by striking `or such other personal identification information relating to the individual as the Attorney General finds, by regulation, sufficient for purposes of this section'; and
(B) in clause (ii), by inserting before the period `and that contains a photograph of the individual';
(4) in subsection (b)(2), by adding at the end the following: `The individual must also provide that individual's social security account number (if the individual claims to have been issued such a number), and, if the individual does not attest to United States citizenship under this paragraph, such identification or authorization number established by the Department of Homeland Security for the alien as the Secretary may specify.'; and
(5) by amending paragraph (3) of subsection (b) to read as follows:
`(3) RETENTION OF VERIFICATION FORM AND VERIFICATION-
`(A) IN GENERAL- After completion of such form in accordance with paragraphs (1) and (2), the person or entity must--
`(i) retain a paper, microfiche, microfilm, or electronic version of the form and make it available for inspection by officers of the Department of Homeland Security, the Special Counsel for Immigration-Related Unfair Employment Practices, or the Department of Labor during a period beginning on the date of the hiring, recruiting, or referral of the individual or the date of the completion of verification of a previously hired individual and ending--
`(I) in the case of the recruiting or referral of an individual, three years after the date of the recruiting or referral;
`(II) in the case of the hiring of an individual, the later of--
`(aa) three years after the date of such hiring; or
`(bb) one year after the date the individual's employment is terminated; and
`(III) in the case of the verification of a previously hired individual, the later of--
`(aa) three years after the date of the completion of verification; or
`(bb) one year after the date the individual's employment is terminated;
`(ii) make an inquiry, as provided in paragraph (7), using the verification system to seek verification of the identity and employment eligibility of an individual, by not later than the end of 3 working days (as specified by the Secretary of Homeland Security) after the date of the hiring or in the case of previously hired individuals, the date specified in subsection (b)(8)(B), or before the recruiting or referring commences; and
`(iii) may not commence recruitment or referral of the individual until the person or entity receives verification under subparagraph (B)(i) or (B)(iii).
`(B) VERIFICATION-
`(i) VERIFICATION RECEIVED- If the person or other entity receives an appropriate verification of an individual's identity and work eligibility under the verification system within the time period specified, the person or entity shall record on the form an appropriate code that is provided under the system and that indicates a final verification of such identity and work eligibility of the individual.
`(ii) TENTATIVE NONVERIFICATION RECEIVED- If the person or other entity receives a tentative nonverification of an individual's identity or work eligibility under the verification system within the time period specified, the person or entity shall so inform the individual for whom the verification is sought. If the individual does not contest the nonverification within the time period specified, the nonverification shall be considered final. The person or entity shall then record on the form an appropriate code which has been provided under the system to indicate a tentative nonverification. If the individual does contest the nonverification, the individual shall utilize the process for secondary verification provided under paragraph (7). The nonverification will remain tentative until a final verification or nonverification is provided by the verification system within the time period specified. In no case shall an employer terminate employment of an individual because of a failure of the individual to have identity and work eligibility confirmed under this section until a nonverification becomes final. Nothing in this clause shall apply to a termination of employment for any reason other than because of such a failure.
`(iii) FINAL VERIFICATION OR NONVERIFICATION RECEIVED- If a final verification or nonverification is provided by the verification system regarding an individual, the person or entity shall record on the form an appropriate code that is provided under the system and that indicates a verification or nonverification of identity and work eligibility of the individual.
`(iv) EXTENSION OF TIME- If the person or other entity in good faith attempts to make an inquiry during the time period specified and the verification system has registered that not all inquiries were received during such time, the person or entity may make an inquiry in the first subsequent working day in which the verification system registers that it has received all inquiries. If the verification system cannot receive inquiries at all times during a day, the person or entity merely has to assert that the entity attempted to make the inquiry on that day for the previous sentence to apply to such an inquiry, and does not have to provide any additional proof concerning such inquiry.
`(v) CONSEQUENCES OF NONVERIFICATION-
`(I) TERMINATION OR NOTIFICATION OF CONTINUED EMPLOYMENT- If the person or other entity has received a final nonverification regarding an individual, the person or entity may terminate employment of the individual (or decline to recruit or refer the individual). If the person or entity does not terminate employment of the individual or proceeds to recruit or refer the individual, the person or entity shall notify the Secretary of Homeland Security of such fact through the verification system or in such other manner as the Secretary may specify.
`(II) FAILURE TO NOTIFY- If the person or entity fails to provide notice with respect to an individual as required under subclause (I), the failure is deemed to constitute a violation of subsection (a)(1)(A) with respect to that individual.
`(vi) CONTINUED EMPLOYMENT AFTER FINAL NONVERIFICATION- If the person or other entity continues to employ (or to recruit or refer) an individual after receiving final nonverification, a rebuttable presumption is created that the person or entity has violated subsection (a)(1)(A).'.
SEC. 703. EXPANSION OF EMPLOYMENT ELIGIBILITY VERIFICATION SYSTEM TO PREVIOUSLY HIRED INDIVIDUALS AND RECRUITING AND REFERRING.
(a) Application to Recruiting and Referring- Section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a) is amended--
(1) in subsection (a)(1)(A), by striking `for a fee';
(2) in subsection (a)(1), by amending subparagraph (B) to read as follows:
`(B) to hire, continue to employ, or to recruit or refer for employment in the United States an individual without complying with the requirements of subsection (b).';
(3) in subsection (a)(2) by striking `after hiring an alien for employment in accordance with paragraph (1),' and inserting `after complying with paragraph (1),'; and
(4) in subsection (a)(3), as amended by section 702, is further amended by striking `hiring,' and inserting `hiring, employing,' each place it appears.
(b) Employment Eligibility Verification for Previously Hired Individuals- Section 274A(b) of such Act (8 U.S.C. 1324a(b)), as amended by section 701(a), is amended by adding at the end the following new paragraph:
`(8) USE OF EMPLOYMENT ELIGIBILITY VERIFICATION SYSTEM FOR PREVIOUSLY HIRED INDIVIDUALS-
`(A) ON A VOLUNTARY BASIS- Beginning on the date that is 2 years after the date of the enactment of the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005 and until the date specified in subparagraph (B)(iii), a person or entity may make an inquiry, as provided in paragraph (7), using the verification system to seek verification of the identity and employment eligibility of any individual employed by the person or entity, as long as it is done on a nondiscriminatory basis.
`(B) ON A MANDATORY BASIS-
`(i) A person or entity described in clause (ii) must make an inquiry as provided in paragraph (7), using the verification system to seek verification of the identity and employment eligibility of all individuals employed by the person or entity who have not been previously subject to an inquiry by the person or entity by the date three years after the date of enactment of the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005.
`(ii) A person or entity is described in this clause if it is a Federal, State, or local governmental body (including the Armed Forces of the United States), or if it employs individuals working in a location that is a Federal, State, or local government building, a military base, a nuclear energy site, a weapon site, an airport, or that contains critical infrastructure (as defined in section 1016(e) of the Critical Infrastructure Protection Act of 2001 (42 U.S.C. 5195c(e))), but only to the extent of such individuals.
`(iii) All persons and entities other than those described in clause (ii) must make an inquiry, as provided in paragraph (7), using the verification system to seek verification of the identity and employment eligibility of all individuals employed by the person or entity who have not been previously subject to an inquiry by the person or entity by the date six years after the date of enactment of the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005.'.
SEC. 704. BASIC PILOT PROGRAM.
Section 401(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note) is amended by striking `at the end of the 11-year period beginning on the first day the pilot program is in effect' and inserting `two years after the enactment of the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005'.
SEC. 705. HIRING HALLS.
Section 274A(h) of the Immigration and Nationality Act (8 U.S.C. 1324a(h)) is amended by adding at the end the following new paragraph:
`(4) RECRUITMENT AND REFERRAL- As used in this section, the term `refer' means the act of sending or directing a person or transmitting documentation or information to another, directly or indirectly, with the intent of obtaining employment in the United States for such person. Generally, only persons or entities referring for remuneration (whether on a retainer or contingency basis) are included in the definition. However, labor service agencies, whether public, private, for-profit, or nonprofit, that refer, dispatch, or otherwise facilitate the hiring of workers for any period of time by a third party are included in the definition whether or not they receive remuneration. As used in this section the term `recruit' means the act of soliciting a person, directly or indirectly, and referring the person to another with the intent of obtaining employment for that person. Generally, only persons or entities recruiting for remunerations (whether on a retainer or contingency basis) are included in the definition. However, labor service agencies, whether public, private, for-profit, or nonprofit that refer, dispatch, or otherwise facilitate the hiring of workers for any period of time by a third party are included in the definition whether or not they receive remuneration.'.
SEC. 706. PENALTIES.
Section 274A of the Immigration and Nationality Act (8 U.S.C. 1324a) is amended--
(1) in subsection (e)(4)--
(A) in subparagraph (A), in the matter before clause (i), by inserting `, subject to paragraphs (10) through (12),' after `in an amount';
(B) in subparagraph (A)(i), by striking `not less than $250 and not more than $2,000' and inserting `not less than $5,000 and not more than $7,500';
(C) in subparagraph (A)(ii), by striking `not less than $2,000 and not more than $5,000' and inserting `not less than $10,000 and not more than $15,000';
(D) in subparagraph (A)(iii), by striking `not less than $3,000 and not more than $10,000' and inserting `not less than $25,000 and not more than $40,000'; and
(E) by amending subparagraph (B) to read as follows:
`(B) may require the person or entity to take such other remedial action as is appropriate.';
(2) in subsection (e)(5)--
(A) by inserting `, subject to paragraphs (10) through (12),' after `in an amount';
(B) by striking `$100' and inserting `$1,000';
(C) by striking `$1,000' and inserting `$25,000';
(D) by striking `the size of the business of the employer being charged, the good faith of the employer' and inserting `the good faith of the employer being charged'; and
(E) by adding at the end the following sentence: `Failure by a person or entity to utilize the employment eligibility verification system as required by law, or providing information to the system that the person or entity knows or reasonably believes to be false, shall be treated as a violation of subsection (a)(1)(A).';
(3) by adding at the end of subsection (e) the following new paragraphs:
`(10) MITIGATION OF CIVIL MONEY PENALTIES FOR SMALLER EMPLOYERS- In the case of imposition of a civil penalty under paragraph (4)(A) with respect to a violation of subsection (a)(1)(A) or (a)(2) for hiring or continuation of employment by an employer and in the case of imposition of a civil penalty under paragraph (5) for a violation of subsection (a)(1)(B) for hiring by an employer, the dollar amounts otherwise specified in the respective paragraph shall be reduced as follows:
`(A) In the case of an employer with an average of fewer than 26 full-time equivalent employees (as defined by the Secretary of Homeland Security), the amounts shall be reduced by 60 percent.
`(B) In the case of an employer with an average of at least 26, but fewer than 101, full-time equivalent employees (as so defined), the amounts shall be reduced by 40 percent.
`(C) In the case of an employer with an average of at least 101, but fewer than 251, full-time equivalent employees (as so defined), the amounts shall be reduced by 20 percent.
The last sentence of paragraph (4) shall apply under this paragraph in the same manner as it applies under such paragraph.'.
`(11) EXEMPTION FROM PENALTY FOR INITIAL GOOD FAITH VIOLATION- In the case of imposition of a civil penalty under paragraph (4)(A) with respect to a violation of subsection (a)(1)(A) or (a)(2) for hiring or continuation of employment or recruitment or referral by person or entity and in the case of imposition of a civil penalty under paragraph (5) for a violation of subsection (a)(1)(B) for hiring or recruitment or referral by a person or entity, the penalty otherwise imposed shall be waived if the violator establishes that it was the first such violation of such provision by the violator and the violator acted in good faith.
`(12) SAFE HARBOR FOR CONTRACTORS- A person or other entity shall not be liable for a penalty under paragraph (4)(A) with respect to the violation of subsection (a)(1)(A), (a)(1)(B), or (a)(2) with respect to the hiring or continuation of employment of an unauthorized alien by a subcontractor of that person or entity unless the person or entity knew that the subcontractor hired or continued to employ such alien in violation of such subsection.
(4) by amending paragraph (1) of subsection (f) to read as follows:
`(1) CRIMINAL PENALTY- Any person or entity which engages in a pattern or practice of violations of subsection (a)(1) or (2) shall be fined not more than $50,000 for each unauthorized alien with respect to which such a violation occurs, imprisoned for not less than one year, or both, notwithstanding the provisions of any other Federal law relating to fine levels.'; and
(5) in subsection (f)(2), by striking `Attorney General' each place it appears and inserting `Secretary of Homeland Security'.
SEC. 707. REPORT ON SOCIAL SECURITY CARD-BASED EMPLOYMENT ELIGIBILITY VERIFICATION.
(a) Report-
(1) IN GENERAL- Not later than 9 months after the date of the enactment of this Act, the Commissioner of Social Security, in consultation with the Secretary of Treasury, the Secretary of Homeland Security, and the Attorney General, shall submit a report to Congress that includes an evaluation of the following requirements and changes:
(A) A requirement that social security cards that are made of a durable plastic or similar material and that include an encrypted, machine-readable electronic identification strip and a digital photograph of the individual to whom the card is issued, be issued to each individual (whether or not a United States citizen) who--
(i) is authorized to be employed in the United States;
(ii) is seeking employment in the United States; and
(iii) files an application for such card, whether as a replacement of an existing social security card or as a card issued in connection with the issuance of a new social security account number.
(B) The creation of a unified database to be maintained by the Department of Homeland Security and comprised of data from the Social Security Administration and the Department of Homeland Security specifying the work authorization of individuals (including both United States citizens and noncitizens) for the purpose of conducting employment eligibility verification.
(C) A requirement that all employers verify the employment eligibility of all new hires using the social security cards described in subparagraph (A) and a phone, electronic card-reading, or other mechanism to seek verification of employment eligibility through the use of the unified database described in subparagraph (B).
(2) ITEMS INCLUDED IN REPORT- The report under paragraph (1) shall include an evaluation of each of the following:
(A) Projected cost, including the cost to the Federal government, State and local governments, and the private sector.
(B) Administrability.
(C) Potential effects on--
(i) employers;
(ii) employees, including employees who are United States citizens as well as those that are not citizens;
(iii) tax revenue; and
(iv) privacy.
(D) The extent to which employer and employee compliance with immigration laws would be expected to improve.
(E) Any other relevant information.
(3) ALTERNATIVES- The report under paragraph (1) also shall examine any alternatives to achieve the same goals as the requirements and changes described in paragraph (1) but that involve lesser cost, lesser burden on those affected, or greater ease of administration.
(b) Inspector General Review- Not later than 3 months after the report is submitted under subsection (a), the Inspector General of the Social Security Administration, in consultation with the Inspectors General of the Department of Treasury, the Department of Homeland Security, and the Department of Justice, shall send to the Congress an evaluation of the such report.
SEC. 708. EXTENSION OF PREEMPTION TO REQUIRED CONSTRUCTION OF DAY LABORER SHELTERS.
Paragraph 274A(h)(2) of the Immigration and Nationality Act (8 U.S.C. 1324a(h)(2)) is amended--
(1) by striking `imposing', and inserting a dash and `(A) imposing';
(2) by striking the period at the end and inserting `; and'; and
(3) by adding at the end the following:
`(B) Requiring as a condition of conducting, continuing, or expanding a business that a business entity--
`(i) provide, build, fund, or maintain a shelter, structure, or designated area for use by day laborers at or near its place of business; or
`(ii) take other steps that facilitate the employment of day laborers by others.'
SEC. 709. EFFECTIVE DATE.
This title and the amendments made by this title shall take effect on the date of enactment of this Act, except that the requirements of persons and entities to comply with the employment eligibility verification process takes effect on the date that is two years after such date.
SEC. 710. LIMITATION ON VERIFICATION RESPONSIBILITIES OF COMMISSIONER OF SOCIAL SECURITY.
The Commissioner of Social Security is authorized to perform activities with respect to carrying out the Commissioner's responsibilities in this title or the amendments made by this title, but only to the extent (except for the purpose of carrying out section 707) the Secretary of Homeland Security has provided, in advance, funds to cover the Commissioner's full costs in carrying out such responsibilities. In no case shall funds from the Federal Old-Age and Survivors Insurance Trust Fund or the Federal Disability Insurance Trust Fund be used to carry out such responsibilities.
SEC. 711. REPORT ON EMPLOYMENT ELIGIBILITY VERIFICATION SYSTEM.
Not later than one year after the implementation of the employment eligibility verification system and one year thereafter, the Secretary of Homeland Security shall submit to Congress a report on the progress and problems associated with implementation of the system, including information relating to the most efficient use of the system by small businesses.
TITLE VIII--IMMIGRATION LITIGATION ABUSE REDUCTION
SEC. 801. BOARD OF IMMIGRATION APPEALS REMOVAL ORDER AUTHORITY.
(a) In General- Section 101(a)(47) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(47)) is amended to read as follows:
`(47)(A) The term `order of removal' means the order of the immigration judge, the Board of Immigration Appeals, or other administrative officer to whom the Attorney General or the Secretary of Homeland Security has delegated the responsibility for determining whether an alien is removable, concluding that the alien is removable or ordering removal.
`(B) The order described under subparagraph (A) shall become final upon the earliest of--
`(i) a determination by the Board of Immigration Appeals affirming such order;
`(ii) the entry by the Board of Immigration Appeals of such order;
`(iii) the expiration of the period in which any party is permitted to seek review of such order by the Board of Immigration Appeals;
`(iv) the entry by an immigration judge of such order, if appeal is waived by all parties; or
`(v) the entry by another administrative officer of such order, at the conclusion of a process as authorized by law other than under section 240.'.
(b) Effective Date- The amendment made by subsection (a) shall take effect on the date of the enactment of this Act and shall apply to ordered entered before, on, or after such date.
SEC. 802. JUDICIAL REVIEW OF VISA REVOCATION.
(a) In General- Section 221(i) of the Immigration and Nationality Act (8 U.S.C. 1201(i)) is amended by amending the last sentence to read as follows: `Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, United States Code, or any other habeas corpus provision, and sections 1361 and 1651 of such title, a revocation under this subsection may not be reviewed by any court, and no court shall have jurisdiction to hear any claim arising from, or any challenge to, such a revocation.'.
(b) Effective Date- The amendment made by subsection (a) shall take effect on the date of the enactment of this Act and shall apply to visa revocations effected before, on, or after such date.
SEC. 803. REINSTATEMENT.
(a) In General- Section 241(a)(5) of the Immigration and Nationality Act (8 U.S.C. 1231(a)(5)) is amended to read as follows:
`(5) REINSTATEMENT OF REMOVAL ORDERS AGAINST ALIENS ILLEGALLY REENTERING- If the Secretary of Homeland Security finds that an alien has entered the United States illegally after having been removed or having departed voluntarily, under an order of removal, deportation, or exclusion, regardless of the date of the original order or the date of the illegal entry--
`(A) the order of removal, deportation, or exclusion is reinstated from its original date and is not subject to being reopened or reviewed;
`(B) the alien is not eligible and may not apply for any relief under this Act, regardless of the date that an application for such relief may have been filed; and
`(C) the alien shall be removed under the order of removal, deportation, or exclusion at any time after the illegal entry.
Reinstatement under this paragraph shall not require proceedings before an immigration judge under section 240 or otherwise.'.
(b) Judicial Review- Section 242 of the Immigration and Nationality Act (8 U.S.C. 1252) is amended by adding at the end the following new subsection:
`(h) Judicial Review of Reinstatement Under Section 241(a)(5)-
`(1) IN GENERAL- Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, United States Code, or any other habeas corpus provision, sections 1361 and 1651 of such title, or subsection (a)(2)(D) of this section, no court shall have jurisdiction to review any cause or claim arising from or relating to any reinstatement under section 241(a)(5) (including any challenge to the reinstated order), except as provided in paragraph (2) or (3).
`(2) CHALLENGES IN COURT OF APPEALS FOR DISTRICT OF COLUMBIA TO VALIDITY OF THE SYSTEM, ITS IMPLEMENTATION, AND RELATED INDIVIDUAL DETERMINATIONS-
`(A) IN GENERAL- Judicial review of determinations under section 241(a)(5) and its implementation is available in an action instituted in the United States Court of Appeals for the District of Columbia Circuit, but shall be limited, except as provided in subparagraph (B), to the following determinations:
`(i) Whether such section, or any regulation issued to implement such section, is constitutional.
`(ii) Whether such a regulation, or a written policy directive, written policy guideline, or written procedure issued by or under the authority of the Attorney General or the Secretary of Homeland Security to implement such section, is not consistent with applicable provisions of this Act or is otherwise in violation of a statute or the Constitution.
`(B) RELATED INDIVIDUAL DETERMINATIONS- If a person raises an action under subparagraph (A), the person may also raise in the same action the following issues:
`(i) Whether the petitioner is an alien.
`(ii) Whether the petitioner was previously ordered removed or deported, or excluded.
`(iii) Whether the petitioner has since illegally entered the United States.
`(C) DEADLINES FOR BRINGING ACTIONS- Any action instituted under this paragraph must be filed no later than 60 days after the date the challenged section, regulation, directive, guideline, or procedure described in clause (i) or (ii) of subparagraph (A) is first implemented.
`(3) INDIVIDUAL DETERMINATIONS UNDER SECTION 242(a)- Judicial review of determinations under section 241(a)(5) is available in an action under subsection (a) of this section, but shall be limited to determinations of--
`(A) whether the petitioner is an alien;
`(B) whether the petitioner was previously ordered removed, deported, or excluded; and
`(C) whether the petitioner has since illegally entered the United States.
`(4) SINGLE ACTION- A person who files an action under paragraph (2) may not file a separate action under paragraph (3). A person who files an action under paragraph (3) may not file an action under paragraph (2).'.
(c) Effective Date- The amendments made by subsections (a) and (b) shall take effect as if enacted on April 1, 1997, and shall apply to all orders reinstated on or after that date by the Secretary of Homeland Security (or by the Attorney General prior to March 1, 2003), regardless of the date of the original order.
SEC. 804. WITHHOLDING OF REMOVAL.
(a) In General- Section 241(b)(3) of the Immigration and Nationality Act (8 U.S.C 1231(b)(3)) is amended--
(1) in subparagraph (A), by adding at the end the following: `The burden of proof is on the alien to establish that the alien's life or freedom would be threatened in that country, and that race, religion, nationality, membership in a particular social group, or political opinion would be at least one central reason for such threat.'; and
(2) in subparagraph (C), by striking `In determining whether an alien has demonstrated that the alien's life or freedom would be threatened for a reason described in subparagraph (A)' and inserting `For purposes of this paragraph'.
(b) Effective Date- The amendments made by subsection (a) shall take effect as if included in the enactment of section 101(c) of the REAL ID Act of 2005 (division B of Public Law 109-13).
SEC. 805. CERTIFICATE OF REVIEWABILITY.
(a) Alien's Brief- Section 242(b)(3)(C) of the Immigration and Nationality Act (8 U.S.C. 1252(b)(3)(C)) is amended to read as follows:
`(C) ALIEN'S BRIEF- The alien shall serve and file a brief in connection with a petition for judicial review not later than 40 days after the date on which the administrative record is available. The court may not extend this deadline except upon motion for good cause shown. If an alien fails to file a brief within the time provided in this paragraph, the court shall dismiss the appeal unless a manifest injustice would result.'.
(b) Certificate of Reviewability- Section 242(b)(3) of such Act (8 U.S.C. 1252 (b)(3)) is amended by adding at the end the following new subparagraphs:
`(D) CERTIFICATE-
`(i) After the alien has filed the alien's brief, the petition for review shall be assigned to a single court of appeals judge.
`(ii) Unless that court of appeals judge or a circuit justice issues a certificate of reviewability, the petition for review shall be denied and the government shall not file a brief.
`(iii) A certificate of reviewability may issue under clause (ii) only if the alien has made a substantial showing that the petition for review is likely to be granted.
`(iv) The court of appeals judge or circuit justice shall complete all action on such certificate, including rendering judgment, not later than 60 days after the date on which the judge or circuit justice was assigned the petition for review, unless an extension is granted under clause (v).
`(v) The judge or circuit justice may grant, on the judge's or justice's own motion or on the motion of a party, an extension of the 60-day period described in clause (iv) if--
`(I) all parties to the proceeding agree to such extension; or
`(II) such extension is for good cause shown or in the interests of justice, and the judge or circuit justice states the grounds for the extension with specificity.
`(vi) If no certificate of reviewability is issued before the end of the period described in clause (iv), including any extension under clause (v), the petition for review shall be deemed denied, any stay or injunction on petitioner's removal shall be dissolved without further action by the court or the government, and the alien may be removed.
`(vii) If a certificate of reviewability is issued under clause (ii), the Government shall be afforded an opportunity to file a brief in response to the alien's brief. The alien may serve and file a reply brief not later than 14 days after service of the Government's brief, and the court may not extend this deadline except upon motion for good cause shown.
`(E) NO FURTHER REVIEW OF THE COURT OF APPEALS JUDGE'S DECISION NOT TO ISSUE A CERTIFICATE OF REVIEWABILITY- The single court of appeals judge's decision not to issue a certificate of reviewability, or the denial of a petition under subparagraph (D)(vi), shall be the final decision for the court of appeals and shall not be reconsidered, reviewed, or reversed by the court of appeals through any mechanism or procedure.'.
(c) Effective Date- The amendments made by this section shall apply to petitions filed on or after the date that is 60 days after the date of the enactment of this Act.
SEC. 806. WAIVER OF RIGHTS IN NONIMMIGRANT VISA ISSUANCE.
(a) In General- Section 221(a) of the Immigration and Nationality Act (8 U.S.C. 1201(a)) is amended by adding at the end the following new paragraph:
`(3) An alien may not be issued a nonimmigrant visa unless the alien has waived any right--
`(A) to review or appeal under this Act of an immigration officer's determination as to the inadmissibility of the alien at the port of entry into the United States; or
`(B) to contest, other than on the basis of an application for asylum, any action for removal of the alien.'.
(b) Effective Date- The amendment made by subsection (a) shall apply to visas issued on or after the date that is 90 days after the date of the enactment of this Act.
SEC. 807. CLARIFICATION OF JURISDICTION ON REVIEW.
(a) Review of Discretionary Determinations- Section 242(a)(2)(B) of the Immigration and Nationality Act (8 U.S.C. 1252(a)(2)(B)) is amended--
(1) by inserting before `no court' the following: `and regardless of whether the individual determination, decision, or action is made in removal proceedings,';
(2) in clause (i), by striking `any judgment' and inserting `any individual determination'; and
(3) in clause (ii)--
(A) by inserting `discretionary' after `any other';
(B) by striking `the authority for which is specified under this title to be in the discretion of the Attorney General or the Secretary of Homeland Security,' and inserting `under this title or the regulations promulgated hereunder,'; and
(C) by striking the period at the end and inserting the following: `, irrespective of whether such decision or action is guided or informed by standards, regulatory or otherwise.'.
(b) Review of Orders Against Criminal Aliens- Section 242(a)(2)(C) of the Immigration and Nationality Act (8 U.S.C. 1252(a)(2)(C)) is amended by inserting after `of removal' the following: `(irrespective of whether relief or protection was denied on the basis of the alien's having committed a criminal offense)'.
(c) Effective Date- The amendments made by this section shall apply to petitions for review that are pending on or after the date of the enactment of this Act.
SEC. 808. FEES AND EXPENSES IN JUDICIAL PROCEEDINGS.
(a) In General- Section 242 of the Immigration and Nationality Act (8 U.S.C. 1252) is amended by adding at the end the following new subsection:
`(i) Notwithstanding any other provision of law, a court shall not award fees or other expenses to an alien based upon the alien's status as a prevailing party in any proceedings relating to an order of removal issued under this Act, unless the court of appeals concludes that the Attorney General's determination that the alien was removable under section 212 or 237 was not substantially justified.'.
(b) Effective Date- The amendment made by subsection (a) shall apply to fees or other expenses awarded on or after the date of the enactment of this Act.
TITLE IX--PRESCREENING OF AIR PASSENGERS
SEC. 901. IMMEDIATE INTERNATIONAL PASSENGER PRESCREENING PILOT PROGRAM.
(a) Pilot Program- Not later than 90 days after the date of enactment of this Act, the Secretary of Homeland Security shall initiate a pilot program to evaluate the use of automated systems for the immediate prescreening of passengers on flights in foreign air transportation, as defined by section 40102 of title 49, United States Code, that are bound for the United States.
(b) Requirements- At a minimum, with respect to a passenger on a flight described in subsection (a) operated by an air carrier or foreign air carrier, the automated systems evaluated under the pilot program shall--
(1) compare the passenger's information against the integrated and consolidated terrorist watchlist maintained by the Federal Government and provide the results of the comparison to the air carrier or foreign air carrier before the passenger is permitted to board the flight;
(2) provide functions similar to the advanced passenger information system established under section 431 of the Tariff Act of 1930 (19 U.S.C. 1431); and
(3) make use of machine-readable data elements on passports and other travel and entry documents in a manner consistent with international standards.
(c) Operation- The pilot program shall be conducted--
(1) in not fewer than 2 foreign airports; and
(2) in collaboration with not fewer than one air carrier at each airport participating in the pilot program.
(d) Evaluation of Automated Systems- In conducting the pilot program, the Secretary shall evaluate not more than 3 automated systems. One or more of such systems shall be commercially available and currently in use to prescreen passengers.
(e) Privacy Protection- The Secretary shall ensure that the passenger data is collected under the pilot program in a manner consistent with the standards established under section 552a of title 5, United States Code.
(f) Duration- The Secretary shall conduct the pilot program for not fewer than 90 days.
(g) Passenger Defined- In this section, the term `passenger' includes members of the flight crew.
(h) Report- Not later than 30 days after the date of completion of the pilot program, the Secretary shall submit to the Committee on Homeland Security of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate a report containing the following:
(1) An assessment of the technical performance of each of the tested systems, including the system's accuracy, scalability, and effectiveness with respect to measurable factors, including, at a minimum, passenger throughput, the rate of flight diversions, and the rate of false negatives and positives.
(2) A description of the provisions of each tested system to protect the civil liberties and privacy rights of passengers, as well as a description of the adequacy of an immediate redress or appeals process for passengers denied authorization to travel.
(3) Cost projections for implementation of each tested system, including--
(A) projected costs to the Department of Homeland Security; and
(B) projected costs of compliance to air carriers operating flights described in subsection (a).
(4) A determination as to which tested system is the best-performing and most efficient system to ensure immediate prescreening of international passengers. Such determination shall be made after consultation with individuals in the private sector having expertise in airline industry, travel, tourism, privacy, national security, and computer security issues.
(5) A plan to fully deploy the best-performing and most efficient system tested by not later than January 1, 2007.
TITLE X--FENCING AND OTHER BORDER SECURITY IMPROVEMENTS
SEC. 1001. FINDINGS.
The Congress finds the following:
(1) Hundreds of people die crossing our international border with Mexico every year.
(2) Illegal narcotic smuggling along the Southwest border of the United States is both dangerous and prolific.
(3) Over 155,000 non-Mexican individuals were apprehended trying to enter the United States along the Southwest border in fiscal year 2005.
(4) The number of illegal entrants into the United States through the Southwest border is estimated to exceed one million people a year.
SEC. 1002. CONSTRUCTION OF FENCING AND SECURITY IMPROVEMENTS IN BORDER AREA FROM PACIFIC OCEAN TO GULF OF MEXICO.
Section 102(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Public Law 104-208; 8 U.S.C. 1103 note) is amended--
(1) in the subsection heading by striking `Near San Diego, California'; and
(2) by amending paragraph (1) to read as follows:
`(1) SECURITY FEATURES-
`(A) REINFORCED FENCING- In carrying out subsection (a), the Secretary of Homeland Security shall provide for least 2 layers of reinforced fencing, the installation of additional physical barriers, roads, lighting, cameras, and sensors--
`(i) extending from 10 miles west of the Tecate, California, port of entry to 10 miles east of the Tecate, California, port of entry;
`(ii) extending from 10 miles west of the Calexico, California, port of entry to 5 miles east of the Douglas, Arizona, port of entry;
`(iii) extending from 5 miles west of the Columbus, New Mexico, port of entry to 10 miles east of El Paso, Texas;
`(iv) extending from 5 miles northwest of the Del Rio, Texas, port of entry to 5 miles southeast of the Eagle Pass, Texas, port of entry; and
`(v) extending 15 miles northwest of the Laredo, Texas, port of entry to the Brownsville, Texas, port of entry.
`(B) PRIORITY AREAS- With respect to the border described--
`(i) in subparagraph (A)(ii), the Secretary shall ensure that an interlocking surveillance camera system is installed along such area by May 30, 2006 and that fence construction is completed by May 30, 2007; and
`(ii) in subparagraph (A)(v), the Secretary shall ensure that fence construction from 15 miles northwest of the Laredo, Texas port of entry to 15 southeast of the Laredo, Texas port of entry is completed by December 31, 2006.
`(C) EXCEPTION- If the topography of a specific area has an elevation grade that exceeds 10%, the Secretary may use other means to secure such area, including the use of surveillance and barrier tools.'.
SEC. 1003. NORTHERN BORDER STUDY.
(a) In General- The Secretary of Homeland Security shall conduct a study on the construction of a state-of-the-art barrier system along the northern international land and maritime border of the United States and shall include in the study--
(1) the necessity of constructing such a system; and
(2) the feasibility of constructing the system.
(b) Report- Not later than one year after the date of the enactment of this Act, the Secretary of Homeland Security shall report to the Congress on the study described in subsection (a).
SEC. 1004. SENSE OF THE CONGRESS.
It is the sense of the Congress that the Secretary of Homeland Security shall take all necessary steps to secure the Southwest international border for the purpose of saving lives, stopping illegal drug trafficking, and halting the flow of illegal entrants into the United States.
TITLE XI--SECURITY AND FAIRNESS ENHANCEMENT
SEC. 1101. SHORT TITLE.
This title may be cited as--
(1) the `Security and Fairness Enhancement for America Act of 2005'; or
(2) the `SAFE for America Act'.
SEC. 1102. ELIMINATION OF DIVERSITY IMMIGRANT PROGRAM.
(a) Worldwide Level of Diversity Immigrants- Section 201 of the Immigration and Nationality Act (8 U.S.C. 1151) is amended--
(1) in subsection (a)--
(A) by inserting `and' at the end of paragraph (1);
(B) by striking `; and' at the end of paragraph (2) and inserting a period; and
(C) by striking paragraph (3); and
(2) by striking subsection (e).
(b) Allocation of Diversity Immigrant Visas- Section 203 of such Act (8 U.S.C. 1153) is amended--
(1) by striking subsection (c);
(2) in subsection (d), by striking `(a), (b), or (c),' and inserting `(a) or (b),';
(3) in subsection (e), by striking paragraph (2) and redesignating paragraph (3) as paragraph (2);
(4) in subsection (f), by striking `(a), (b), or (c)' and inserting `(a) or (b)'; and
(5) in subsection (g), by striking `(a), (b), and (c)' and inserting `(a) and (b)'.
(c) Procedure for Granting Immigrant Status- Section 204 of such Act (8 U.S.C. 1154) is amended--
(1) by striking subsection (a)(1)(I); and
(2) in subsection (e), by striking `(a), (b), or (c)' and inserting `(a) or (b)'.
(d) Effective Date- The amendments made by this section shall take effect on October 1, 2006.
TITLE XII--OATH OF RENUNCIATION AND ALLEGIANCE
SEC. 1201. OATH OF RENUNCIATION AND ALLEGIANCE.
(a) In General- Section 337(a) of the Immigration and Nationality Act (8 U.S.C. 1448(a)) is amended by inserting after the fourth sentence the following: `The oath referred to in this section shall be the oath provided for in paragraph (a) or (b) of section 337.1 of title 8, Code of Federal Regulations, as in effect on April 1, 2005.'.
(b) Notice to Foreign Embassies- Upon the naturalization of a new citizen, the Secretary of Homeland Security, in cooperation with the Secretary of State, shall notify the embassy of the country of which the new citizen was a citizen or subject that such citizen has--
(1) renounced allegiance to that foreign country; and
(2) sworn allegiance to the United States.
(c) Effective Date- The amendment made by subsection (a) shall take effect on the date that is 6 months after the date of the enactment of this Act.
TITLE XIII--ELIMINATION OF CORRUPTION AND PREVENTION OF ACQUISITION OF IMMIGRATION BENEFITS THROUGH FRAUD
SEC. 1301. SHORT TITLE.
This title may be cited as the `Taking Action to Keep Employees Accountable in Immigration Matters Act of 2005' or the `TAKE AIM Act of 2005'.
SEC. 1302. FINDINGS.
Congress finds the following:
(1) The mission of United States Citizenship and Immigration Services (USCIS) is to faithfully execute the immigration laws enacted by Congress and to ensure that only those aliens who are eligible under such laws and who do not pose a risk to the United States or its citizens or lawful residents are able to obtain permission to remain in the United States.
(2) Only United States citizens have an absolute right to be in the United States; for all others, permission to enter and reside here, either as nonimmigrants or immigrants, is a privilege that is conditioned on following the rules of one's admission and stay.
(3) It is important that United States Citizenship and Immigration Services, like all other Federal agencies that come into close contact with the public their customers.
(4) Immigration benefits fraud has become endemic. It undermines the rule of law and threatens national security, and so must be addressed aggressively and consistently.
(5) Internal corruption also threatens national security and erodes the integrity of the immigration system. In order to restore integrity and credibility to the system, the backlog of complaints against United States Citizenship and Immigration Services employees must be cleared by experienced investigators as expeditiously as possible without compromising the quality of investigations.
(6) In separating customs and border protection and immigration and customs enforcement from United States Citizenship and Immigration Services, Congress did not intend to wholly eliminate all law enforcement functions within the latter, nor is it possible for United States citizenship and immigration services to achieve its mission without a law enforcement function. the attempt to do so has produced the current abysmal results. Thus, it is imperative that United States Citizenship and Immigration Services embrace the critical law enforcement function especially the internal audit function.
SEC. 1303. STRUCTURE OF THE OFFICE OF SECURITY AND INVESTIGATIONS.
The Director of the Office of Security and Investigations shall report directly to the Director of United States Citizenship and Immigration Services.
SEC. 1304. AUTHORITY OF THE OFFICE OF SECURITY AND INVESTIGATIONS TO INVESTIGATE INTERNAL CORRUPTION.
(a) Authority- In addition to the authority otherwise provided by this title, the Director of the Office of Security and Investigations, in carrying out the duties of the Office, has sole authority--
(1) to receive, process, dispose of administratively, and investigate any criminal or noncriminal violations of the Immigration and Nationality Act or title 18, United States Code, that are alleged to have been committed by any officer, agent, employee, or contract worker of United States Citizenship and Immigration Services, and that are referred to United States Citizenship and Immigration Services by the Office of the Inspector General of the Department of Homeland Security;
(2) to ensure that all complaints alleging such violations are handled and stored in the same manner as sensitive but unclassified materials;
(3) to have access to all records, reports, audits, reviews, documents, papers, recommendations, or other material available to United States Citizenship and Immigration Services which relate to programs and operations with respect to which the Director has responsibilities under this title;
(4) to request such information or assistance as may be necessary for carrying out the duties and responsibilities of the Office from any Federal, State, or local governmental agency or unit thereof;
(5) to require by subpoena the production of all information, documents, reports, answers, records, accounts, papers, and other data and documentary evidence necessary in the performance of the functions assigned to the Office of Security and Investigations, which subpoena, in the case of contumacy or refusal to obey, shall be enforceable by order of any appropriate United States district court (except that procedures other than subpoenas shall be used by the Director to obtain documents and information from Federal agencies);
(6) to administer to or take from any person an oath, affirmation, or affidavit, whenever necessary in the performance of the functions assigned to the Office of Security and Investigations, which oath, affirmation, or affidavit when administered or taken by or before an agent of the Office of Security and Investigations designated by the Director shall have the same force and effect as if administered or taken by or before an officer having a seal;
(7) to have direct and prompt access to the head of United States Citizenship and Immigration Services when necessary for any purpose pertaining to the performance of functions and responsibilities of the Office of Security and Investigations;
(8) to select, appoint, and employ such officers and employees as may be necessary for carrying out the functions, powers, and duties of the Office of Security and Investigations subject to the provisions of title 5, United States Code, governing appointments in the competitive service, and the provisions of chapter 51 and subchapter III of chapter 53 of such title relating to classification and General Schedule pay rates;
(9) to obtain services as authorized by section 3109 of title 5, United States Code, at daily rates not to exceed the equivalent rate prescribed for grade GS-15 of the General Schedule by section 5332 of title 5, United States Code; and
(10) to the extent and in such amounts as may be provided in advance by immigration fee accounts or appropriations Acts, to enter into contracts and other arrangements for audits, studies, analyses, and other services with public agencies and with private persons, and to make such payments as may be necessary to carry out the provisions of this title.
(b)(1) Upon request of the Director for information or assistance under subsection (a)(4), the head of any Federal agency involved shall, insofar as is practicable and not in contravention of any existing statutory restriction or regulation of the Federal agency from which the information is requested, furnish to such Director, or to an authorized designee, such information or assistance.
(2) Whenever information or assistance requested under subsection (a)(3) or (a)(4) is, in the judgment of the Director, unreasonably refused or not provided, the Director shall report the circumstances to the Director of United States Citizenship and Immigration Services without delay.
(c) The Director of United States Citizenship and Immigration Services shall provide the Office of Security and Investigations with appropriate and adequate office space at central and field office locations of United States Citizenship and Immigration Services, together with such equipment, office supplies, and communications facilities and services as may be necessary for the operation of such offices, and shall provide necessary maintenance services for such offices and the equipment and facilities located therein.
(d)(1) In addition to the authority otherwise provided by this title, the Director, the Deputy Director, the Assistant Director of Security Operations, the Assistant Director of Special Investigations, all 1811-series criminal investigators, certain 1801-series investigative management specialists, and security specialists supervised by such assistant directors may be authorized by the Secretary of Homeland Security to--
(A) carry a firearm while engaged in official duties as authorized under this title or other statute, or as expressly authorized by the Secretary;
(B) make an arrest without a warrant while engaged in official duties as authorized under this title or other statute, or as expressly authorized by the Secretary, for any offense against the United States committed in the presence of such Director, Assistant Director, or designee, or for any felony cognizable under the laws of the United States if such Director, Assistant Director, or designee has reasonable grounds to believe that the person to be arrested has committed or is committing such felony; and
(C) seek and execute warrants for arrest, search of a premises, or seizure of evidence issued under the authority of the United States upon probable cause to believe that a violation has been committed.
(2) The Secretary shall promulgate, and revise as appropriate, guidelines which shall govern the exercise of the law enforcement powers established under paragraph (1).
(3)(A) Powers authorized for the Director under paragraph (1) may be rescinded or suspended upon a determination by the Secretary that the exercise of authorized powers by that Director has not complied with the guidelines promulgated by the Secretary under paragraph (2).
(B) Powers authorized to be exercised by any individual under paragraph (1) may be rescinded or suspended with respect to that individual upon a determination by the Secretary that such individual has not complied with guidelines promulgated by the Secretary under paragraph (2).
(4) A determination by the Secretary under paragraph (3) shall not be reviewable in or by any court.
(5) No provision of this subsection shall limit the exercise of law enforcement powers established under any other statutory authority.
SEC. 1305. AUTHORITY OF THE OFFICE OF SECURITY AND INVESTIGATIONS TO DETECT AND INVESTIGATE IMMIGRATION BENEFITS FRAUD.
The Office of Security and Investigations of United States Citizenship and Immigration Services shall have authority--
(1) to conduct fraud detection operations, including data mining and analysis;
(2) to investigate any criminal or noncriminal allegations of violations of the Immigration and Nationality Act or title 18, United States Code, that Immigration and Customs Enforcement declines to investigate;
(3) to turn over to a United States Attorney for prosecution evidence that tends to establish such violations; and
(4) to engage in information sharing, partnerships, and other collaborative efforts with any--
(A) Federal, State, or local law enforcement entity;
(B) foreign partners; or
(C) entity within the intelligence community (as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).
SEC. 1306. INCREASE IN FULL-TIME OFFICE OF SECURITY AND INVESTIGATIONS PERSONNEL.
(a) Increase in GS-1811 Series Criminal Investigators- (1) In each of fiscal years 2007 through 2010, the Director of the Office of Security and Investigations shall, subject to the availability of security fees described in section 910 of this title, increase by not less than 100 the number of full-time, active-duty GS-1811 series criminal Discussion draft 10 investigators, along with support personnel and equipment, within the Office of Security and Investigations above the number of such positions for which funds were made available during the preceding fiscal year.
(2) Division of Duties-
(A) INTERNAL AFFAIRS- No fewer than one-third of the criminal investigators, and support personnel, hired under paragraph (1) shall be assigned to investigate allegations described in paragraph (1) of section 904(a) of this title;
(B) BENEFITS FRAUD- The remaining criminal investigators, and support personnel, hired under paragraph (1) shall be assigned to investigate allegations described in section 905 of this title.
(b) Increase in GS-1801 Series Investigation and Compliance Officers- (1) Subject to the availability of security fees described in section 910 of this title, the Director of the Office of Security and Investigations shall by fiscal year 2008 increase by not less than 150 the number of full-time, active-duty GS-1801 series investigation and compliance officers, along with support personnel and equipment, within the Office of Security and Investigations above the number of such positions for which funds were made available during fiscal year 2006.
(2) Division of Duties-
(A) INTERNAL AFFAIRS- No fewer than one-third of the investigation and compliance officers, and support personnel, hired under paragraph (1) shall be assigned to investigate allegations described in paragraph (1) of section 904(a) of this title;
(B) BENEFITS FRAUD- The remaining investigation and compliance officers, and support personnel, hired under paragraph (1) shall be assigned to investigate allegations described in section 905 of this title.
(c) Increase in GS-0132 Series Intelligence Research Specialists- (1) Subject to the availability of security fees described in section 910 of this title, the Director of the Office of Security and Investigations shall by fiscal year 2008 increase by not less than 150 the number of full-time, active-duty GS-0132 series intelligence research specialists, along with support personnel and equipment, within the Office of Security and Investigations above the number of such positions for which funds were made available during fiscal year 2006.
(2) Division of Duties-
(A) INTERNAL AFFAIRS- No fewer than one-third of the investigation and compliance officers, and support personnel, hired under paragraph (1) shall be assigned to investigate allegations described in paragraph (1) of section 904(a) of this title;
(B) BENEFITS FRAUD- The remaining investigation and compliance officers, and support personnel, hired under paragraph (1) shall be assigned to investigate allegations described in section 905 of this title.
SEC. 1307. ANNUAL REPORT.
The Director of the Office of Security and Investigations shall annually submit to Congress a report detailing the activities of the Office. The report shall include data on the following:
(1) The number of investigations the Office of Security and Investigations began, completed, and turned over to a United States Attorney for prosecution during the past 12 months.
(2) The types of allegations investigated by the Office of Security and Investigations during the past 12 months, including both the allegations of misconduct by employees of United States Citizenship and Immigration Services and allegations of immigration benefits fraud.
(3) The disposition of all investigations conducted by the Office of Security and Investigations during the past 12 months.
(4) The number, if any, of allegations pending at the end of the 12-month period according to the type of allegation, the grade level of the employee, if applicable, along with an assessment of the resources the Office of Security and Investigations would need, if any, to remain current with new allegations received.
SEC. 1308. INVESTIGATIONS OF FRAUD TO PRECEDE IMMIGRATION BENEFITS GRANT.
Section 103 of the Immigration and Nationality Act (8 U.S.C. 1103) is amended by adding at the end the following:
`(j) Notwithstanding any other provision of law, the Secretary of Homeland Security, the Attorney General, or any court may not--
`(1) grant or order the grant of adjustment of status to that of an alien lawfully admitted for permanent residence,
`(2) grant or order the grant of any other status, relief, protection from removal, or other benefit under the immigration laws, or
`(3) issue any documentation evidencing or related to such grant by the Attorney General, the Secretary, or any court,
until any suspected or alleged fraud relating to the benefit application has been fully investigated and found to be unsubstantiated.'.
SEC. 1309. ELIMINATION OF THE FRAUD DETECTION AND NATIONAL SECURITY OFFICE.
Not later than 30 days following the date of enactment of this title, the Secretary of Homeland Security shall eliminate the Fraud Detection and National Security Office of United States Citizenship and Immigration Services and transfer all authority of such office to the Office of Security and Investigations.
SEC. 1310. SECURITY FEE.
Section 286(d) of the Immigration and Nationality Act (8 U.S.C. 1356(d)) is amended by inserting `(1)' before `monies' and adding at the end the following:
`(2) In addition to any other fee authorized by law, the Secretary of Homeland Security shall charge each alien who files an application for adjustment of status or an extension of stay a security fee of $10, which shall be made available to the Office of Security and Investigations to conduct investigations into allegations of internal corruption and benefits fraud.
`(3) In addition to any other fee authorized by law, the Secretary of State shall charge each alien who files an application for an immigrant or nonimmigrant visa a security fee of $10, which shall be made available to the Office of Security and Investigations to conduct investigations into allegations of internal corruption and benefits fraud.
`(4) Any fees collected under paragraphs (2) and (3) that are in excess of the operating budget of the Office of Security and Investigations shall be made available to Immigration and Customs Enforcement for the sole purpose of investigating immigration benefits fraud referred to it by United States Citizenship and Immigration Services.'.
Passed the House of Representatives December 16, 2005.
Attest:
Clerk.
109th CONGRESS
1st Session
H. R. 4437
AN ACT
To amend the Immigration and Nationality Act to strengthen enforcement of the immigration laws, to enhance border security, and for other purposes.
END
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