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Senate Bill 1033, also known as the McCain-Kennedy Bill, the guest worker bill, and "the Secure America and Orderly Immigration Act", is the leading bill proposing a guest worker program according to an agenda set forth by President Bush in early 2005. The entire bill text is reprinted here. Use the search feature of your browser to find specific portions of the bill.
S 1033 IS
109th CONGRESS
1st Session
S. 1033
To improve border security and immigration.
IN THE SENATE OF THE UNITED STATES
May 12, 2005
Mr. MCCAIN (for himself, Mr. KENNEDY, Mr. BROWNBACK, Mr. LIEBERMAN, Mr. GRAHAM, and Mr. SALAZAR) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
A BILL
To improve border security and immigration.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title- This Act may be cited as the `Secure America and Orderly Immigration Act'.
(b) Table of Contents- The table of contents for this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings.
TITLE I--BORDER SECURITY
Sec. 101. Definitions.
Subtitle A--Border security strategic planning
Sec. 111. National Strategy for Border Security.
Sec. 112. Reports to Congress.
Sec. 113. Authorization of appropriations.
Subtitle B--Border infrastructure, technology integration, and security enhancement
Sec. 121. Border security coordination plan.
Sec. 122. Border security advisory committee.
Sec. 123. Programs on the use of technologies for border security.
Sec. 124. Combating human smuggling.
Sec. 125. Savings clause.
Subtitle C--International Border Enforcement
Sec. 131. North American Security Initiative.
Sec. 132. Information sharing agreements.
Sec. 133. Improving the security of Mexico's southern border.
TITLE II--STATE CRIMINAL ALIEN ASSISTANCE
Sec. 201. State criminal alien assistance program authorization of appropriations.
Sec. 202. Reimbursement of States for indirect costs relating to the incarceration of illegal aliens.
Sec. 203. Reimbursement of States for pre-conviction costs relating to the incarceration of illegal aliens.
TITLE III--ESSENTIAL WORKER VISA PROGRAM
Sec. 301. Essential workers.
Sec. 302. Admission of essential workers.
Sec. 303. Employer obligations.
Sec. 304. Protection for workers.
Sec. 305. Market-based numerical limitations.
Sec. 306. Adjustment to lawful permanent resident status.
Sec. 307. Essential Worker Visa Program Task Force.
Sec. 308. Willing worker-willing employer electronic job registry.
Sec. 309. Authorization of appropriations.
TITLE IV--ENFORCEMENT
Sec. 401. Document and visa requirements.
Sec. 402. Employment Eligibility Confirmation System.
Sec. 403. Improved entry and exit data system.
Sec. 404. Department of labor investigative authorities.
Sec. 405. Protection of employment rights.
Sec. 406. Increased fines for prohibited behavior.
TITLE V--PROMOTING CIRCULAR MIGRATION PATTERNS
Sec. 501. Labor migration facilitation programs.
Sec. 502. Bilateral efforts with Mexico to reduce migration pressures and costs.
TITLE VI--FAMILY UNITY AND BACKLOG REDUCTION
Sec. 601. Elimination of existing backlogs.
Sec. 602. Country limits.
Sec. 603. Allocation of immigrant visas.
Sec. 604. Relief for children and widows.
Sec. 605. Amending the affidavit of support requirements.
Sec. 606. Discretionary authority.
Sec. 607. Family unity.
TITLE VII--H-5B NONIMMIGRANTS
Sec. 701. H-5B nonimmigrants.
Sec. 702. Adjustment of status for H-5B nonimmigrants.
Sec. 703. Aliens not subject to direct numerical limitations.
Sec. 704. Employer protections.
Sec. 705. Authorization of appropriations.
TITLE VIII--PROTECTION AGAINST IMMIGRATION FRAUD
Sec. 801. Right to qualified representation.
Sec. 802. Protection of witness testimony.
TITLE IX--CIVICS INTEGRATION
Sec. 901. Funding for the Office of Citizenship.
Sec. 902. Civics integration grant program.
TITLE X--PROMOTING ACCESS TO HEALTH CARE
Sec. 1001. Federal reimbursement of emergency health services furnished to undocumented aliens.
Sec. 1002. Prohibition against offset of certain Medicare and Medicaid payments.
Sec. 1003. Prohibition against discrimination against aliens on the basis of employment in hospital-based versus nonhospital-based sites.
Sec. 1004. Binational public health infrastructure and health insurance.
TITLE XI--MISCELLANEOUS
Sec. 1101. Submission to Congress of information regarding H-5A nonimmigrants.
Sec. 1102. H-5 nonimmigrant petitioner account.
Sec. 1103. Anti-discrimination protections.
Sec. 1104. Women and children at risk of harm.
Sec. 1105. Expansion of S visa.
Sec. 1106. Volunteers.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) The Government of the United States has an obligation to its citizens to secure its borders and ensure the rule of law in its communities.
(2) The Government of the United States must strengthen international border security efforts by dedicating adequate and significant resources for technology, personnel, and training for border region enforcement.
(3) Federal immigration policies must adhere to the United States tradition as a nation of immigrants and reaffirm this Nation's commitment to family unity, economic opportunity, and humane treatment.
(4) Immigrants have contributed significantly to the strength and economic prosperity of the United States and action must be taken to ensure their fair treatment by employers and protection against fraud and abuse.
(5) Current immigration laws and the enforcement of such laws are ineffective and do not serve the people of the United States, the national security interests of the United States, or the economic prosperity of the United States.
(6) The United States cannot effectively carry out its national security policies unless the United States identifies undocumented immigrants and encourages them to come forward and participate legally in the economy of the United States.
(7) Illegal immigration fosters other illegal activity, including human smuggling, trafficking, and document fraud, all of which undermine the national security interests of the United States.
(8) Illegal immigration burdens States and local communities with hundreds of millions of dollars in uncompensated expenses for law enforcement, health care, and other essential services.
(9) Illegal immigration creates an underclass of workers who are vulnerable to fraud and exploitation.
(10) Fixing the broken immigration system requires a comprehensive approach that provides for adequate legal channels for immigration and strong enforcement of immigration laws which will serve the economic, social, and security interests of the United States.
(11) Foreign governments, particularly those that share an international border with the United States, must play a critical role in securing international borders and deterring illegal entry of foreign nationals into the United States.
(12) Federal immigration policy should foster economic growth by allowing willing workers to be matched with willing employers when no United States worker is available to take a job.
(13) Immigration reform is a key component to achieving effective enforcement and will allow for the best use of security and enforcement resources to be focused on the greatest risks.
(14) Comprehensive immigration reform and strong enforcement of immigration laws will encourage legal immigration, deter illegal immigration, and promote the economic and national security interests of the United States.
TITLE I--BORDER SECURITY
SEC. 101. DEFINITIONS.
In this title:
(1) APPROPRIATE CONGRESSIONAL COMMITTEES- The term `appropriate congressional committees' means--
(A) the Committee on Homeland Security and Governmental Affairs of the Senate;
(B) the Committee on the Judiciary of the Senate;
(C) the Committee on Homeland Security of the House of Representatives; and
(D) the Committee on the Judiciary of the House of Representatives.
(2) INTERNATIONAL BORDER OF THE UNITED STATES- The term `international border of the United States' means the international border between the United States and Canada and the international border between the United States and Mexico, including points of entry along such international borders.
(3) SECRETARY- Except as otherwise provided, the term `Secretary' means the Secretary of Homeland Security.
(4) SECURITY PLAN- The term `security plan' means a security plan developed as part of the National Strategy for Border Security set forth under section 111(a) for the Border Patrol and the field offices of the Bureau of Customs and Border Protection of the Department of Homeland Security that has responsibility for the security of any portion of the international border of the United States.
Subtitle A--Border Security Strategic Planning
SEC. 111. NATIONAL STRATEGY FOR BORDER SECURITY.
(a) In General- In conjunction with strategic homeland security planning efforts, the Secretary shall develop, implement, and update, as needed, a National Strategy for Border Security that includes a security plan for the Border Patrol and the field offices of the Bureau of Customs and Border Protection of the Department of Homeland Security that has responsibility for the security of any portion of the international border of the United States.
(b) Contents- The National Strategy for Border Security shall include--
(1) the identification and evaluation of the points of entry and all portions of the international border of the United States that, in the interests of national security and enforcement, must be protected from illegal transit;
(2) a description of the most appropriate, practical, and cost-effective means of defending the international border of the United States against threats to security and illegal transit, including intelligence capacities, technology, equipment, personnel, and training needed to address security vulnerabilities within the United States for the Border Patrol and the field offices of the Bureau of Customs and Border Protection that have responsibility for any portion of the international border of the United States;
(3) risk-based priorities for assuring border security and realistic deadlines for addressing security and enforcement needs identified in paragraphs (1) and (2);
(4) a strategic plan that sets out agreed upon roles and missions of Federal, State, regional, local, and tribal authorities, including appropriate coordination among such authorities, to enable security enforcement and border lands management to be carried out in an efficient and effective manner;
(5) a prioritization of research and development objectives to enhance the security of the international border of the United States and enforcement needs to promote such security consistent with the provisions of subtitle B;
(6) an update of the 2001 Port of Entry Infrastructure Assessment Study conducted by the United States Customs Service, in consultation with the General Services Administration;
(7) strategic interior enforcement coordination plans with personnel of Immigration and Customs Enforcement;
(8) strategic enforcement coordination plans with overseas personnel of the Department of Homeland Security and the Department of State to end human smuggling and trafficking activities;
(9) any other infrastructure or security plan or report that the Secretary determines appropriate for inclusion;
(10) the identification of low-risk travelers and how such identification would facilitate cross-border travel; and
(11) ways to ensure that the trade and commerce of the United States is not diminished by efforts, activities, and programs aimed at securing the homeland.
(c) Priority of National Strategy- The National Strategy for Border Security shall be the governing document for Federal security and enforcement efforts related to securing the international border of the United States.
SEC. 112. REPORTS TO CONGRESS.
(a) National Strategy-
(1) INITIAL SUBMISSION- Not later than 1 year after the date of enactment of this Act, the Secretary shall submit the National Strategy for Border Security, including each security plan, to the appropriate congressional committees. Such plans shall include estimated costs of implementation and training from a fiscal and personnel perspective and a cost-benefit analysis of any technological security implementations.
(2) SUBSEQUENT SUBMISSIONS- After the submission required under paragraph (1), the Secretary shall submit to the appropriate congressional committees any revisions to the National Strategy for Border Security, including any revisions to a security plan, not less frequently than April 1 of each odd-numbered year. The plan shall include estimated costs for implementation and training and a cost-benefit analysis of technological security implementations that take place during the time frame under evaluation.
(b) Periodic Progress Reports-
(1) REQUIREMENT FOR REPORT- Each year, in conjunction with the submission of the budget to Congress under section 1105(a) of title 31, United States Code, the Secretary shall submit to the appropriate congressional committees an assessment of the progress made on implementing the National Strategy for Border Security, including each security plan.
(2) CONTENT- Each progress report submitted under this subsection shall include any recommendations for improving and implementing the National Strategy for Border Security, including any recommendations for improving and implementing a security plan.
(c) Classified Material-
(1) IN GENERAL- Any material included in the National Strategy for Border Security, including each security plan, that includes information that is properly classified under criteria established by Executive order shall be submitted to the appropriate congressional committees in a classified form.
(2) UNCLASSIFIED VERSION- As appropriate, an unclassified version of the material described in paragraph (1) shall be provided to the appropriate congressional committees.
SEC. 113. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to the Secretary such sums as may be necessary to carry out this subtitle for each of the 5 fiscal years beginning with the fiscal year after the fiscal year in which this Act was enacted.
Subtitle B--Border Infrastructure, Technology Integration, and Security Enhancement
SEC. 121. BORDER SECURITY COORDINATION PLAN.
(a) In General- The Secretary shall coordinate with Federal, State, local, and tribal authorities on law enforcement, emergency response, and security-related responsibilities with regard to the international border of the United States to develop and implement a plan to ensure that the security of such international border is not compromised--
(1) when the jurisdiction for providing such security changes from one such authority to another such authority;
(2) in areas where such jurisdiction is shared by more than one such authority; or
(3) by one such authority relinquishing such jurisdiction to another such authority pursuant to a memorandum of understanding.
(b) Elements of Plan- In developing the plan, the Secretary shall consider methods to--
(1) coordinate emergency responses;
(2) improve data-sharing, communications, and technology among the appropriate agencies;
(3) promote research and development relating to the activities described in paragraphs (1) and (2); and
(4) combine personnel and resource assets when practicable.
(c) Report- Not later than 1 year after implementing the plan developed under subsection (a), the Secretary shall transmit a report to the appropriate congressional committees on the development and implementation of such plan.
SEC. 122. BORDER SECURITY ADVISORY COMMITTEE.
(a) Establishment- The Secretary is authorized to establish a Border Security Advisory Committee (referred to in this section as the `Advisory Committee') to provide advice and recommendations to the Secretary on border security and enforcement issues.
(b) Composition-
(1) IN GENERAL- The members of the Advisory Committee shall be appointed by the Secretary and shall include representatives of--
(A) States that are adjacent to the international border of the United States;
(B) local law enforcement agencies; community officials, and tribal authorities of such States; and
(C) other interested parties.
(2) MEMBERSHIP- The Advisory Committee shall be comprised of members who represent a broad cross section of perspectives.
SEC. 123. PROGRAMS ON THE USE OF TECHNOLOGIES FOR BORDER SECURITY.
(a) Aerial Surveillance Technologies Program-
(1) IN GENERAL- In conjunction with the border surveillance plan developed under section 5201 of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108-458), the Secretary, not later than 60 days after the date of enactment of this Act, shall develop and implement a program to fully integrate aerial surveillance technologies to enhance the border security of the United States.
(2) ASSESSMENT AND CONSULTATION REQUIREMENTS- In developing the program under this subsection, the Secretary shall--
(A) consider current and proposed aerial surveillance technologies;
(B) assess the feasibility and advisability of utilizing such technologies to address border threats, including an assessment of the technologies considered best suited to address respective threats;
(C) consult with the Secretary of Defense regarding any technologies or equipment, which the Secretary may deploy along the international border of the United States; and
(D) consult with the Administrator of the Federal Aviation Administration regarding safety, airspace coordination and regulation, and any other issues necessary for implementation of the program.
(3) ADDITIONAL REQUIREMENTS-
(A) IN GENERAL- The program developed under this subsection shall include the utilization of a variety of aerial surveillance technologies in a variety of topographies and areas, including populated and unpopulated areas located on or near the international border of the United States, in order to evaluate, for a range of circumstances--
(i) the significance of previous experiences with such technologies in border security or critical infrastructure protection;
(ii) the cost and effectiveness of various technologies for border security, including varying levels of technical complexity; and
(iii) liability, safety, and privacy concerns relating to the utilization of such technologies for border security.
(B) USE OF UNMANNED AERIAL VEHICLES- The aerial surveillance technologies utilized in the program shall include unmanned aerial vehicles.
(4) CONTINUED USE OF AERIAL SURVEILLANCE TECHNOLOGIES- The Secretary may continue the operation of aerial surveillance technologies while assessing the effectiveness of their utilization and until such time the Secretary determines appropriate.
(5) REPORT-
(A) REQUIREMENT- Not later than 1 year after implementing the program under this subsection, the Secretary shall submit a report on such program to the appropriate congressional committees.
(B) CONTENT- The Secretary shall include in the report required by subparagraph (A) a description of the program together with such recommendations as the Secretary finds appropriate for enhancing the program.
(b) Demonstration Programs- The Secretary is authorized, as part of the development and implementation of the National Strategy for Border Security, to establish and carry out demonstration programs to strengthen communication, information sharing, technology, security, intelligence benefits, and enforcement activities that will protect the international border of the United States without diminishing international trade and commerce.
(c) INSERT CONTINUED USE OF GROUND SURVEILLANCE TECHNOLOGIES-
SEC. 124. COMBATING HUMAN SMUGGLING.
(a) Requirement for Plan- The Secretary shall develop and implement a plan to improve coordination between the Bureau of Immigration and Customs Enforcement and the Bureau of Customs and Border Protection of the Department of Homeland Security and any other Federal, State, local, or tribal authorities, as determined appropriate by the Secretary, to improve coordination efforts to combat human smuggling.
(b) Content- In developing the plan required by subsection (a), the Secretary shall consider--
(1) the interoperability of databases utilized to prevent human smuggling;
(2) adequate and effective personnel training;
(3) methods and programs to effectively target networks that engage in such smuggling;
(4) effective utilization of--
(A) visas for victims of trafficking and other crimes; and
(B) investigatory techniques, equipment, and procedures that prevent, detect, and prosecute international money laundering and other operations that are utilized in smuggling;
(5) joint measures, with the Secretary of State, to enhance intelligence sharing and cooperation with foreign governments whose citizens are preyed on by human smugglers; and
(6) other measures that the Secretary considers appropriate to combating human smuggling.
(c) Report- Not later than 1 year after implementing the plan described in subsection (a), the Secretary shall submit to Congress a report on such plan, including any recommendations for legislative action to improve efforts to combating human smuggling.
SEC. 125. SAVINGS CLAUSE.
Nothing in this subtitle or subtitle A may be construed to provide to any State or local entity any additional authority to enforce Federal immigration laws.
Subtitle C--International Border Enforcement
SEC. 131. NORTH AMERICAN SECURITY INITIATIVE.
(a) In General- The Secretary of State shall enhance the mutual security and safety of the United States, Canada, and Mexico by providing a framework for better management, communication, and coordination between the Governments of North America.
(b) Responsibilities- In implementing the provisions of this subtitle, the Secretary of State shall carry out all of the activities described in this subtitle.
SEC. 132. INFORMATION SHARING AGREEMENTS.
The Secretary of State, in coordination with the Secretary of Homeland Security and the Government of Mexico, is authorized to negotiate an agreement with Mexico to--
(1) cooperate in the screening of third-country nationals using Mexico as a transit corridor for entry into the United States; and
(2) provide technical assistance to support stronger immigration control at the border with Mexico.
SEC. 133. IMPROVING THE SECURITY OF MEXICO'S SOUTHERN BORDER.
(a) Technical Assistance- The Secretary of State, in coordination with the Secretary of Homeland Security, the Canadian Department of Foreign Affairs, and the Government of Mexico, shall establish a program to--
(1) assess the specific needs of the governments of Central American countries in maintaining the security of the borders of such countries;
(2) use the assessment made under paragraph (1) to determine the financial and technical support needed by the governments of Central American countries from Canada, Mexico, and the United States to meet such needs;
(3) provide technical assistance to the governments of Central American countries to secure issuance of passports and travel documents by such countries; and
(4) encourage the governments of Central American countries to--
(A) control alien smuggling and trafficking;
(B) prevent the use and manufacture of fraudulent travel documents; and
(C) share relevant information with Mexico, Canada, and the United States.
(b) Immigration- The Secretary of Homeland Security, in consultation with the Secretary of State and appropriate officials of the governments of Central American countries shall provide robust law enforcement assistance to such governments that specifically addresses migratory issues to increase the ability of such governments to dismantle human smuggling organizations and gain tighter control over the border.
(c) Border Security Between Mexico and Guatemala or Belize- The Secretary of State, in consultation with the Secretary of Homeland Security, the Government of Mexico, and appropriate officials of the Governments of Guatemala, Belize, and neighboring contiguous countries, shall establish a program to provide needed equipment, technical assistance, and vehicles to manage, regulate, and patrol the international border between Mexico and Guatemala and between Mexico and Belize.
(d) Tracking Central American Gangs- The Secretary of State, in coordination with the Secretary of Homeland Security, the Director of the Federal Bureau of Investigation, the Government of Mexico, and appropriate officials of the governments of Central American countries, shall--
(1) assess the direct and indirect impact on the United States and Central America on deporting violent criminal aliens;
(2) establish a program and database to track Central American gang activities, focusing on the identification of returning criminal deportees;
(3) devise an agreed-upon mechanism for notification applied prior to deportation and for support for reintegration of these deportees; and
(4) devise an agreement to share all relevant information with the appropriate agencies of Mexico and other Central American countries.
TITLE II--STATE CRIMINAL ALIEN ASSISTANCE
SEC. 201. STATE CRIMINAL ALIEN ASSISTANCE PROGRAM AUTHORIZATION OF APPROPRIATIONS.
Section 241(i) of the Immigration and Nationality Act (8 U.S.C. 1231(i)) is amended by striking paragraphs (5) and (6) and inserting the following:
`(5) AUTHORIZATION OF APPROPRIATIONS-
`(A) IN GENERAL- There are authorized to be appropriated to carry out this subsection--
`(i) such sums as may be necessary for fiscal year 2005;
`(ii) $750,000,000 for fiscal year 2006;
`(iii) $850,000,000 for fiscal year 2007; and
`(iv) $950,000,000 for each of the fiscal years 2008 through 2011.
`(B) LIMITATION ON USE OF FUNDS- Amounts appropriated pursuant to subparagraph (A) that are distributed to a State or political subdivision of a State, including a municipality, may be used only for correctional purposes.'.
SEC. 202. REIMBURSEMENT OF STATES FOR INDIRECT COSTS RELATING TO THE INCARCERATION OF ILLEGAL ALIENS.
Section 501 of the Immigration Reform and Control Act of 1986 (8 U.S.C. 1365) is amended--
(1) in subsection (a)--
(A) by striking `for the costs' and inserting the following: `for--
`(1) the costs'; and
(B) by striking `such State.' and inserting the following: `such State; and
`(2) the indirect costs related to the imprisonment described in paragraph (1).'; and
(2) by striking subsections (c) through (e) and inserting the following:
`(c) Manner of Allotment of Reimbursements- Reimbursements under this section shall be allotted in a manner that gives special consideration for any State that--
`(1) shares a border with Mexico or Canada; or
`(2) includes within the State an area in which a large number of undocumented aliens reside relative to the general population of that area.
`(d) Definitions- As used in this section:
`(1) INDIRECT COSTS- The term `indirect costs' includes--
`(A) court costs, county attorney costs, detention costs, and criminal proceedings expenditures that do not involve going to trial;
`(B) indigent defense costs; and
`(C) unsupervised probation costs.
`(2) STATE- The term `State' has the meaning given such term in section 101(a)(36) of the Immigration and Nationality Act.
`(e) Authorization of Appropriations- There are authorized to be appropriated $200,000,000 for each of the fiscal years 2005 through 2011 to carry out subsection (a)(2).'.
SEC. 203. REIMBURSEMENT OF STATES FOR PRE-CONVICTION COSTS RELATING TO THE INCARCERATION OF ILLEGAL ALIENS.
Section 241(i)(3)(A) of the Immigration and Nationality Act (8 U.S.C. 1231(i)(3)(a) is amended by inserting `charged with or' before `convicted.'
TITLE III--ESSENTIAL WORKER VISA PROGRAM
SEC. 301. ESSENTIAL WORKERS.
Section 101(a)(15)(H) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)) is amended--
(1) by striking `(H) an alien (i)(b)' and inserting the following:
`(H) an alien--
`(i)(b)';
(2) by striking `or (ii)(a)' and inserting the following:
`(ii)(a)';
(3) by striking `or (iii)' and inserting the following:
`(iii)'; and
(4) by adding at the end the following:
`(v)(a) subject to section 218A, having residence in a foreign country, which the alien has no intention of abandoning, who is coming temporarily to the United States to initially perform labor or services (other than those occupation classifications covered under the provisions of clause (i)(b) or (ii)(a) or subparagraph (L), (O), (P), or (R)); or.'.
SEC. 302. ADMISSION OF ESSENTIAL WORKERS.
(a) In General- Chapter 2 of title II of the Immigration and Nationality Act (8 U.S.C. 1181 et seq.) is amended by inserting after section 218 the following:
`ADMISSION OF TEMPORARY H-5A WORKERS
`SEC. 218A. (a) The Secretary of State may grant a temporary visa to a nonimmigrant described in section 101(a)(15)(H)(v)(a) who demonstrates an intent to perform labor or services in the United States (other than those occupational classifications covered under the provisions of clause (i)(b) or (ii)(a) of section 101(a)(15)(H) or subparagraph (L), (O), (P), or (R)) of section 101(a)(15).
`(b) Requirements for Admission- In order to be eligible for nonimmigrant status under section 101(a)(15)(H)(v)(a), an alien shall meet the following requirements:
`(1) ELIGIBILITY TO WORK- The alien shall establish that the alien is capable of performing the labor or services required for an occupation under section 101(a)(15)(H)(v).
`(2) EVIDENCE OF EMPLOYMENT- The alien's evidence of employment shall be provided through the Employment Eligibility Confirmation System established under section 274E or in accordance with requirements issued by the Secretary of State, in consultation with the Secretary of Homeland Security. In carrying out this paragraph, the Secretary may consider evidence from employers, employer associations, and labor representatives.
`(3) FEE- The alien shall pay a $500 application fee to apply for the visa in addition to the cost of processing and adjudicating such application. Nothing in this paragraph shall be construed to affect consular procedures for charging reciprocal fees.
`(4) MEDICAL EXAMINATION- The alien shall undergo a medical examination (including a determination of immunization status) at the alien's expense, that conforms to generally accepted standards of medical practice.
`(c) Grounds of Inadmissibility-
`(1) IN GENERAL- In determining an alien's admissibility as a nonimmigrant under section 101(a)(15)(H)(v)(a)--
`(A) paragraphs (5), (6) (except for subparagraph (E)), (7), (9), and (10)(B) of section 212(a) may be waived for conduct that occurred before the date on which the Secure America and Orderly Immigration Act was introduced;
`(B) the Secretary of Homeland Security may not waive--
`(i) subparagraph (A), (B), (C), (E), (G), (H), or (I) of section 212(a)(2) (relating to criminals);
`(ii) section 212(a)(3) (relating to security and related grounds); or
`(iii) subparagraph (A) or (C) of section 212(a)(10) (relating to polygamists and child abductors);
`(C) for conduct that occurred before the date on which the Secure America and Orderly Immigration Act was introduced, the Secretary of Homeland Security may waive the application of any provision of section 212(a) not listed in subparagraph (B) on behalf of an individual alien for humanitarian purposes, to ensure family unity, or when such waiver is otherwise in the public interest; and
`(D) nothing in this paragraph shall be construed as affecting the authority of the Secretary of Homeland Security to waive the provisions of section 212(a).
`(2) WAIVER FINE- An alien who is granted a waiver under subparagraph (1) shall pay a $1,500 fine upon approval of the alien's visa application.
`(3) APPLICABILITY OF OTHER PROVISIONS- Sections 240B(d) and 241(a)(5) shall not apply to an alien who initially seeks admission as a nonimmigrant under section 101(a)(15)(H)(v)(a).
`(4) RENEWAL OF AUTHORIZED ADMISSION AND SUBSEQUENT ADMISSIONS- An alien seeking renewal of authorized admission or subsequent admission as a nonimmigrant under section 101(a)(15)(H)(v)(a) shall establish that the alien is not inadmissible under section 212(a).
`(d) Period of Authorized Admission-
`(1) INITIAL PERIOD- The initial period of authorized admission as a nonimmigrant described in section 101(a)(15)(H)(v)(a) shall be 3 years.
`(2) RENEWALS- The alien may seek an extension of the period described in paragraph (1) for 1 additional 3-year period.
`(3) LOSS OF EMPLOYMENT-
`(A) IN GENERAL- Subject to subsection (c), the period of authorized admission of a nonimmigrant alien under section 101(a)(15)(H)(v)(a) shall terminate if the nonimmigrant is unemployed for 45 or more consecutive days.
`(B) RETURN TO FOREIGN RESIDENCE- Any alien whose period of authorized admission terminates under subparagraph (A) shall be required to return to the country of the alien's nationality or last residence.
`(C) PERIOD OF VISA VALIDITY- Any alien, whose period of authorized admission terminates under subparagraph (A), who returns to the country of the alien's nationality or last residence under subparagraph (B), may reenter the United States on the basis of the same visa to work for an employer, if the alien has complied with the requirements of subsection (b)(1).
`(4) VISITS OUTSIDE UNITED STATES-
`(A) IN GENERAL- Under regulations established by the Secretary of Homeland Security, a nonimmigrant alien under section 101(a)(15)(H)(v)(a)--
`(i) may travel outside of the United States; and
`(ii) may be readmitted without having to obtain a new visa if the period of authorized admission has not expired.
`(B) EFFECT ON PERIOD OF AUTHORIZED ADMISSION- Time spent outside the United States under subparagraph (A) shall not extend the period of authorized admission in the United States.
`(e) Portability- A nonimmigrant alien described in this section, who was previously issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(v)(a), may accept new employment with a subsequent employer.
`(f) Waiver of Rights Prohibited- A nonimmigrant alien described in section 101(a)(15)(H)(v)(a) may not be required to waive any rights or protections under the Secure America and Orderly Immigration Act.
`(g) Change of Address- An alien having nonimmigrant status described in section 101(a)(15)(H)(v)(a) shall comply by either electronic or paper notification with the change of address reporting requirements under section 265.
`(h) Bar to Future Visas for Violations-
`(1) IN GENERAL- Any alien having the nonimmigrant status described in section 101(a)(15)(H)(v)(a) shall not be eligible to renew such nonimmigrant status if the alien willfully violates any material term or condition of such status.
`(2) WAIVER- The alien may apply for a waiver of the application of subparagraph (A) for technical violations, inadvertent errors, or violations for which the alien was not at fault.
`(i) Collection of Fees- All fees collected under this section shall be deposited in the Treasury in accordance with section 286(w).'.
(b) Conforming Amendment Regarding Presumption of Nonimmigrant Status- Section 214(b) of the Immigration and Nationality Act (8 U.S.C. 1184(b)) is amended by inserting `(H)(v)(a),' after `(H)(i),'.
(c) Clerical Amendment- The table of contents for the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) is amended by inserting after the item relating to section 218 the following:
`Sec. 218A. Admission of temporary H-5A workers.'.
SEC. 303. EMPLOYER OBLIGATIONS.
Employers employing a nonimmigrant described in section 101(a)(15)(H)(v)(a) of the Immigration and Nationality Act, as added by section 301, shall comply with all applicable Federal, State, and local laws, including--
(1) laws affecting migrant and seasonal agricultural workers; and
(2) the requirements under section 274E of such Act, as added by section 402.
SEC. 304. PROTECTION FOR WORKERS.
Section 218A of the Immigration and Nationality Act, as added by section 302, is amended by adding at the end the following:
`(h) Application of Labor and Other Laws-
`(1) DEFINITIONS- As used in this subsection and in subsections (i) through (k):
`(A) EMPLOY; EMPLOYEE; EMPLOYER- The terms `employ', `employee', and `employer' have the meanings given such terms in section 3 of the Fair Labor Standards Act of 1938 (29 U.S.C. 203).
`(B) FOREIGN LABOR CONTRACTOR- The term `foreign labor contractor' means any person who for any compensation or other valuable consideration paid or promised to be paid, performs any foreign labor contracting activity.
`(C) FOREIGN LABOR CONTRACTING ACTIVITY- The term `foreign labor contracting activity' means recruiting, soliciting, hiring, employing, or furnishing, an individual who resides outside of the United States for employment in the United States as a nonimmigrant alien described in section 101(a)(15)(H)(v)(a).
`(2) COVERAGE- Notwithstanding any other provision of law--
`(A) a nonimmigrant alien described in section 101(a)(15)(H)(v)(a) is prohibited from being treated as an independent contractor; and
`(B) no person may treat a nonimmigrant alien described in section 101(a)(15)(H)(v)(a) as an independent contractor.
`(3) APPLICABILITY OF LAWS- A nonimmigrant alien described in section 101(a)(15)(H)(v)(a) shall not be denied any right or any remedy under Federal, State, or local labor or employment law that would be applicable to a United States worker employed in a similar position with the employer because of the alien's status as a nonimmigrant worker.
`(4) TAX RESPONSIBILITIES- With respect to each employed nonimmigrant alien described in section 101(a)(15)(H)(v)(a), an employer shall comply with all applicable Federal, State, and local tax and revenue laws.
`(5) NONDISCRIMINATION IN EMPLOYMENT- An employer shall provide nonimmigrants issued a visa under this section with the same wages, benefits, and working conditions that are provided by the employer to United States workers similarly employed in the same occupation and the same place of employment.
`(6) NO REPLACEMENT OF STRIKING EMPLOYEES- An employer may not hire a nonimmigrant alien described in section 101(a)(15)(H)(v)(a) as a replacement worker if there is a strike or lockout in the course of a labor dispute in the occupational classification at the place of employment.
`(7) WAIVER OF RIGHTS PROHIBITED- A nonimmigrant alien described in section 101(a)(15)(H)(v)(a) may not be required to waive any rights or protections under the Secure America and Orderly Immigration Act. Nothing under this provision shall be construed to affect the interpretation of other laws.
`(8) NO THREATENING OF EMPLOYEES- It shall be a violation of this section for an employer who has filed a petition under section 203(b) to threaten the alien beneficiary of such a petition with withdrawal of the application, or to withdraw such a petition in retaliation for the beneficiary's exercise of a right protected by the Secure America and Orderly Immigration Act.
`(9) WHISTLEBLOWER PROTECTION- It shall be unlawful for an employer or a labor contractor of a nonimmigrant alien described in section 101(a)(15)(H)(v)(a) to intimidate, threaten, restrain, coerce, retaliate, discharge, or in any other manner, discriminate against an employee or former employee because the employee or former employee--
`(A) discloses information to the employer or any other person that the employee or former employee reasonably believes demonstrates a violation of Secure America and Orderly Immigration Act.
`(B) cooperates or seeks to cooperate in an investigation or other proceeding concerning compliance with the requirements of the Secure America and Orderly Immigration Act.
`(i) Labor Recruiters-
`(1) IN GENERAL- Each employer that engages in foreign labor contracting activity and each foreign labor contractor shall ascertain and disclose to each such worker who is recruited for employment the following information at the time of the worker's recruitment:
`(A) The place of employment.
`(B) The compensation for the employment.
`(C) A description of employment activities.
`(D) The period of employment.
`(E) Any other employee benefit to be provided and any costs to be charged for each benefit.
`(F) Any travel or transportation expenses to be assessed.
`(G) The existence of any labor organizing effort, strike, lockout, or other labor dispute at the place of employment.
`(H) The existence of any arrangement with any owner, employer, foreign contractor, or its agent where such person receives a commission from the provision of items or services to workers.
`(I) The extent to which workers will be compensated through workers' compensation, private insurance, or otherwise for injuries or death, including work related injuries and death, during the period of employment and, if so, the name of the State workers' compensation insurance carrier or the name of the policyholder of the private insurance, the name and the telephone number of each person who must be notified of an injury or death, and the time period within which such notice must be given.
`(J) Any education or training to be provided or required, including the nature and cost of such training, who will pay such costs, and whether the training is a condition of employment, continued employment, or future employment.
`(K) A statement, in a form specified by the Secretary of Labor, describing the protections of this Act for workers recruited abroad.
`(2) FALSE OR MISLEADING INFORMATION- No foreign labor contractor or employer who engages in foreign labor contracting activity shall knowingly provide material false or misleading information to any worker concerning any matter required to be disclosed in paragraph (1).
`(3) LANGUAGES- The information required to be disclosed under paragraph (1) shall be provided in writing in English or, as necessary and reasonable, in the language of the worker being recruited. The Department of Labor shall make forms available in English, Spanish, and other languages, as necessary, which may be used in providing workers with information required under this section.
`(4) FEES- A person conducting a foreign labor contracting activity shall not assess any fee to a worker for such foreign labor contracting activity.
`(5) TERMS- No employer or foreign labor contractor shall, without justification, violate the terms of any agreement made by that contractor or employer regarding employment under this program.
`(6) TRAVEL COSTS- If the foreign labor contractor or employer charges the employee for transportation such transportation costs shall be reasonable.
`(7) OTHER WORKER PROTECTIONS-
`(A) NOTIFICATION- Every 2 years, each employer shall notify the Secretary of Labor of the identity of any foreign labor contractor engaged by the employer in any foreign labor contractor activity for or on behalf of the employer.
`(B) REGISTRATION OF FOREIGN LABOR CONTRACTORS-
`(i) IN GENERAL- No person shall engage in foreign labor recruiting activity unless such person has a certificate of registration from the Secretary of Labor specifying the activities that such person is authorized to perform. An employer who retains the services of a foreign labor contractor shall only use those foreign labor contractors who are registered under this subparagraph.
`(ii) ISSUANCE- The Secretary shall promulgate regulations to establish an efficient electronic process for the investigation and approval of an application for a certificate of registration of foreign labor contractors not later than 14 days after such application is filed. Such process shall include requirements under paragraphs (1), (4), and (5) of section 1812 of title 29, United States Code, an expeditious means to update registrations and renew certificates and any other requirements the Secretary may prescribe.
`(iii) TERM- Unless suspended or revoked, a certificate under this subparagraph shall be valid for 2 years.
`(iv) REFUSAL TO ISSUE; REVOCATION; SUSPENSION- In accordance with regulations promulgated by the Secretary of Labor, the Secretary may refuse to issue or renew, or may suspend or revoke, a certificate of registration under this subparagraph. The justification for such refusal, suspension, or revocation may include the following:
`(I) The application or holder of the certification has knowingly made a material misrepresentation in the application for such certificate.
`(II) The applicant for or holder of the certification is not the real party in interest in the application or certificate of registration and the real party in interest is a person who has been refused issuance or renewal of a certificate, has had a certificate suspended or revoked, or does not qualify for a certificate under this paragraph.
`(III) The applicant for or holder of the certification has failed to comply with the Secure America and Orderly Immigration Act.
`(C) REMEDY FOR VIOLATIONS- An employer engaging in foreign labor contracting activity and a foreign labor contractor that violates the provisions of this subsection shall be subject to remedies for foreign labor contractor violations under subsections (j) and (k). If a foreign labor contractor acting as an agent of an employer violates any provision of this subsection, the employer shall also be subject to remedies under subsections (j) and (k). An employer that violates a provision of this subsection relating to employer obligations shall be subject to remedies under this subsections (j) and (k).
`(D) EMPLOYER NOTIFICATION- An employer shall notify the Secretary of Labor any time the employer becomes aware of a violation of this subsection by a foreign labor recruiter.
`(E) WRITTEN AGREEMENTS- No foreign labor contractor shall violate the terms of any written agreements made with an employer relating to any contracting activity or worker protection under this subsection.
`(F) BONDING REQUIREMENT- The Secretary of Labor may require a foreign labor contractor under this subsection to post a bond in an amount sufficient to ensure the protection of individuals recruited by the foreign labor contractor. The Secretary may consider the extent to which the foreign labor contractor has sufficient ties to the United States to adequately enforce this subsection.
`(j) Enforcement-
`(1) IN GENERAL- The Secretary of Labor shall prescribe regulations for the receipt, investigation, and disposition of complaints by an aggrieved person respecting a violation of this section.
`(2) DEFINITION- As used in this subsection, an `aggrieved person' is a person adversely affected by the alleged violation, including--
`(A) a worker whose job, wages, or working conditions are adversely affected by the violation; and
`(B) a representative for workers whose jobs, wages, or working conditions are adversely affected by the violation who brings a complaint on behalf of such worker.
`(3) FILING DEADLINE- No investigation or hearing shall be conducted on a complaint concerning a violation under this section unless the complaint was filed not later than 12 months after the date of such violation.
`(4) REASONABLE CAUSE- The Secretary of Labor shall conduct an investigation under this subsection if there is reasonable cause to believe that a violation of this section has occurred. The process established under this subsection shall provide that, not later than 30 days after a complaint is filed, the Secretary shall determine if there is reasonable cause to find such a violation.
`(5) NOTICE AND HEARING-
`(A) IN GENERAL- Not later than 60 days after the Secretary of Labor makes a determination of reasonable cause under paragraph (4), the Secretary shall issue a notice to the interested parties and offer an opportunity for a hearing on the complaint, in accordance with section 556 of title 5, United States Code.
`(B) COMPLAINT- If the Secretary of Labor, after receiving a complaint under this subsection, does not offer the aggrieved party or organization an opportunity for a hearing under subparagraph (A), the Secretary shall notify the aggrieved party or organization of such determination and the aggrieved party or organization may seek a hearing on the complaint in accordance with such section 556.
`(C) HEARING DEADLINE- Not later than 60 days after the date of a hearing under this paragraph, the Secretary of Labor shall make a finding on the matter in accordance with paragraph (6).
`(6) ATTORNEYS' FEES- A complainant who prevails with respect to a claim under this subsection shall be entitled to an award of reasonable attorneys' fees and costs.
`(7) POWER OF THE SECRETARY- The Secretary may bring an action in any court of competent jurisdiction--
`(A) to seek remedial action, including injunctive relief;
`(B) to recover the damages described in subsection (k); or
`(C) to ensure compliance with terms and conditions described in subsection (i).
`(8) SOLICITOR OF LABOR- Except as provided in section 518(a) of title 28, United States Code, the Solicitor of Labor may appear for and represent the Secretary of Labor in any civil litigation brought under this subsection. All such litigation shall be subject to the direction and control of the Attorney General.
`(9) PROCEDURES IN ADDITION TO OTHER RIGHTS OF EMPLOYEES- The rights and remedies provided to workers under this section are in addition to, and not in lieu of, any other contractual or statutory rights and remedies of the workers, and are not intended to alter or affect such rights and remedies.
`(k) Penalties-
`(1) IN GENERAL- If, after notice and an opportunity for a hearing, the Secretary of Labor finds a violation of subsection (h) or (i), the Secretary may impose administrative remedies and penalties, including--
`(A) back wages;
`(B) fringe benefits; and
`(C) civil monetary penalties.
`(2) CIVIL PENALTIES- The Secretary of Labor may impose, as a civil penalty--
`(A) for a violation of subsection (h)--
`(i) a fine in an amount not to exceed $2,000 per violation per affected worker;
`(ii) if the violation was willful violation, a fine in an amount not to exceed $5,000 per violation per affected worker;
`(iii) if the violation was willful and if in the course of such violation a United States worker was harmed, a fine in an amount not to exceed $25,000 per violation per affected worker; and
`(B) for a violation of subsection (i)--
`(i) a fine in an amount not less than $500 and not more than $4,000 per violation per affected worker;
`(ii) if the violation was willful, a fine in an amount not less than $2,000 and not more than $5,000 per violation per affected worker; and
`(iii) if the violation was willful and if in the course of such violation a United States worker was harmed, a fine in an amount not less than $6,000 and not more than $35,000 per violation per affected worker.
`(3) USE OF CIVIL PENALTIES- All penalties collected under this subsection shall be deposited in the Treasury in accordance with section 286(w).
`(4) CRIMINAL PENALTIES- If a willful and knowing violation of subsection (i) causes extreme physical or financial harm to an individual, the person in violation of such subsection may be imprisoned for not more than 6 months, fined not more than $35,000 fine, or both.'.
SEC. 305. MARKET-BASED NUMERICAL LIMITATIONS.
Section 214(g) of the Immigration and Nationality Act (8 U.S.C. 1184(g)) is amended--
(1) in paragraph (1)--
(A) by striking `(beginning with fiscal year 1992)';
(B) in subparagraph (B), by striking the period at the end and inserting `; and'; and
(C) by adding at the end the following:
`(C) under section 101(a)(15)(H)(v)(a), may not exceed--
`(i) 400,000 for the first fiscal year in which the program is implemented;
`(ii) in any subsequent fiscal year--
`(I) if the total number of visas allocated for that fiscal year are allotted within the first quarter of that fiscal year, then an additional 20 percent of the allocated number shall be made available immediately and the allocated amount for the following fiscal year shall increase by 20 percent of the original allocated amount in the prior fiscal year;
`(II) if the total number of visas allocated for that fiscal year are allotted within the second quarter of that fiscal year, then an additional 15 percent of the allocated number shall be made available immediately and the allocated amount for the following fiscal year shall increase by 15 percent of the original allocated amount in the prior fiscal year;
`(III) if the total number of visas allocated for that fiscal year are allotted within the third quarter of that fiscal year, then an additional 10 percent of the allocated number shall be made available immediately and the allocated amount for the following fiscal year shall increase by 10 percent of the original allocated amount in the prior fiscal year;
`(IV) if the total number of visas allocated for that fiscal year are allotted within the last quarter of that fiscal year, then the allocated amount for the following fiscal year shall increase by 10 percent of the original allocated amount in the prior fiscal year; and
`(V) with the exception of the first subsequent fiscal year to the fiscal year in which the program is implemented, if fewer visas were allotted the previous fiscal year than the number of visas allocated for that year and the reason was not due to processing delays or delays in promulgating regulations, then the allocated amount for the following fiscal year shall decrease by 10 percent of the allocated amount in the prior fiscal year.'; and
(2) by adding at the end the following:
`(9)(A) Of the total number of visas allocated for each fiscal year under paragraph (1)(C)--
`(i) 50,000 visas shall be allocated to qualifying counties; and
`(ii) any of the visas allocated under clause (i) that are not issued by June 30 of such fiscal year, may be made available to any qualified applicant.
`(B) In this paragraph, the term `qualifying county' means any county that--
`(i) that is outside a metropolitan statistical area; and
`(ii) during the 20-year-period ending on the last day of the calendar year preceding the date of enactment of the Secure America and Orderly Immigration Act, experienced a net out-migration of inhabitants from the county of at least 10 percent of the population of the county at the beginning of such period.
`(10) In allocating visas under this subsection, the Secretary of State may take any additional measures necessary to deter illegal immigration.'.
SEC. 306. ADJUSTMENT TO LAWFUL PERMANENT RESIDENT STATUS.
Section 245 of the Immigration and Nationality Act (8 U.S.C. 1255) is amended by adding at the end the following:
`(n)(1) For purposes of adjustment of status under subsection (a), employment-based immigrant visas shall be made available to an alien having nonimmigrant status described in section 101(a)(15)(H)(v)(a) upon the filing of a petition for such a visa--
`(A) by the alien's employer; or
`(B) by the alien, if the alien has maintained such nonimmigrant status in the United States for a cumulative total of 4 years.
`(2) An alien having nonimmigrant status described in section 101(a)(15)(H)(v)(a) may not apply for adjustment of status under this section unless the alien--
`(A) is physically present in the United States; and
`(B) the alien establishes that the alien--
`(i) meets the requirements of section 312; or
`(ii) is satisfactorily pursuing a course of study to achieve such an understanding of English and knowledge and understanding of the history and government of the United States.
`(3) An alien who demonstrates that the alien meets the requirements of section 312 may be considered to have satisfied the requirements of that section for purposes of becoming naturalized as a citizen of the United States under title III.
`(4) Filing a petition under paragraph (1) on behalf of an alien or otherwise seeking permanent residence in the United States for such alien shall not constitute evidence of the alien's ineligibility for nonimmigrant status under section 101(a)(15)(H)(v)(a).
`(5) The limitation under section 302(d) regarding the period of authorized stay shall not apply to any alien having nonimmigrant status under section 101(a)(15)(H)(v)(a) if--
`(A) a labor certification petition filed under section 203(b) on behalf of such alien is pending; or
`(B) an immigrant visa petition filed under section 204(b) on behalf of such alien is pending.
`(6) The Secretary of Homeland Security shall extend the stay of an alien who qualifies for an exemption under paragraph (5) in 1-year increments until a final decision is made on the alien's lawful permanent residence.
`(7) Nothing in this subsection shall be construed to prevent an alien having nonimmigrant status described in section 101(a)(15)(H)(v)(a) from filing an application for adjustment of status under this section in accordance with any other provision of law.'.
SEC. 307. ESSENTIAL WORKER VISA PROGRAM TASK FORCE.
(a) Establishment of Task Force-
(1) IN GENERAL- There is established a task force to be known as the Essential Worker Visa Program Task Force (referred to in this section as the `Task Force').
(2) PURPOSES- The purposes of the Task Force are--
(A) to study the Essential Worker Visa Program (referred to in this section as the `Program') established under this title; and
(B) to make recommendations to Congress with respect to such program.
(3) MEMBERSHIP- The Task Force shall be composed of 10 members, of whom--
(A) 1 shall be appointed by the President and shall serve as chairman of the Task Force;
(B) 1 shall be appointed by the leader of the Democratic Party in the Senate, in consultation with the leader of the Democratic Party in the House of Representatives, and shall serve as vice chairman of the Task Force;
(C) 2 shall be appointed by the majority leader of the Senate;
(D) 2 shall be appointed by the minority leader of the Senate;
(E) 2 shall be appointed by the Speaker of the House of Representatives; and
(F) 2 shall be appointed by the minority leader of the House of Representatives.
(4) QUALIFICATIONS-
(A) IN GENERAL- Members of the Task Force shall be--
(i) individuals with expertise in economics, demography, labor, business, or immigration or other pertinent qualifications or experience; and
(ii) representative of a broad cross-section of perspectives within the United States, including the public and private sectors and academia;
(B) POLITICAL AFFILIATION- Not more than 5 members of the Task Force may be members of the same political party.
(C) NONGOVERNMENTAL APPOINTEES- An individual appointed to the Task Force may not be an officer or employee of the Federal Government or of any State or local government.
(5) DEADLINE FOR APPOINTMENT- All members of the Task Force shall be appointed not later than 6 months after the Program has been implemented.
(6) VACANCIES- Any vacancy in the Task Force shall not affect its powers, but shall be filled in the same manner in which the original appointment was made.
(7) MEETINGS-
(A) INITIAL MEETING- The Task Force shall meet and begin the operations of the Task Force as soon as practicable.
(B) SUBSEQUENT MEETINGS- After its initial meeting, the Task Force shall meet upon the call of the chairman or a majority of its members.
(8) QUORUM- Six members of the Task Force shall constitute a quorum.
(b) Duties- The Task Force shall examine and make recommendations regarding the Program, including recommendations regarding--
(1) the development and implementation of the Program;
(2) the criteria for the admission of temporary workers under the Program;
(3) the formula for determining the yearly numerical limitations of the Program;
(4) the impact of the Program on immigration;
(5) the impact of the Program on the United States workforce and United States businesses; and
(6) any other matters regarding the Program that the Task Force considers appropriate.
(c) Information and Assistance From Federal Agencies-
(1) INFORMATION FROM FEDERAL AGENCIES- The Task Force may seek directly from any Federal department or agency such information, including suggestions, estimates, and statistics, as the Task Force considers necessary to carry out the provisions of this section. Upon request of the Task Force, the head of such department or agency shall furnish such information to the Task Force.
(2) ASSISTANCE FROM FEDERAL AGENCIES- The Administrator of General Services shall, on a reimbursable base, provide the Task Force with administrative support and other services for the performance of the Task Force's functions. The departments and agencies of the United States may provide the Task Force with such services, funds, facilities, staff, and other support services as they determine advisable and as authorized by law.
(d) Reports-
(1) INITIAL REPORT- Not later than 2 years after the Program has been implemented, the Task Force shall submit a report to Congress, the Secretary of State, the Secretary of Labor, and the Secretary of Homeland Security that contains--
(A) findings with respect to the duties of the Task Force;
(B) recommendations for improving the Program; and
(C) suggestions for legislative or administrative action to implement the Task Force recommendations.
(2) FINAL REPORT- Not later than 4 years after the submission of the initial report under paragraph (1), the Task Force shall submit a final report to Congress, the Secretary of State, the Secretary of Labor, and the Secretary of Homeland Security that contains additional findings, recommendations, and suggestions, as described in paragraph (1).
SEC. 308. WILLING WORKER-WILLING EMPLOYER ELECTRONIC JOB REGISTRY.
(a) Establishment- The Secretary of Labor shall direct the coordination and modification of the national system of public labor exchange services (commonly known as `America's Job Bank') in existence on the date of enactment of this Act to provide information on essential worker employment opportunities available to United States workers and nonimmigrant workers under section 101(a)(15)(H)(v)(a) of the Immigration and Nationality Act, as added by this Act.
(b) Recruitment of United States Workers- Before the completion of evidence of employment for a potential nonimmigrant worker under section 101(a)(15)(H)(v)(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(v)(a), an employer shall attest that the employer has posted in the Job Registry for not less than 30 days in order to recruit United States workers. An employer shall maintain records for not less than 1 year demonstrating why United States workers who applied were not hired.
(c) Oversight and Maintenance of Records- The Secretary of Labor shall maintain electronic job registry records, as established by regulation, for the purpose of audit or investigation.
(d) Access to Job Registry-
(1) CIRCULATION IN INTERSTATE EMPLOYMENT SERVICE SYSTEM- The Secretary of Labor shall ensure that job opportunities advertised on the electronic job registry established under this section are accessible by the State workforce agencies, which may further disseminate job opportunity information to other interested parties.
(2) INTERNET- The Secretary of Labor shall ensure that the Internet-based electronic job registry established or approved under this section may be accessed by workers, employers, labor organizations, and other interested parties.
SEC. 309. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to the Secretary of State such sums as may be necessary to carry out this title and the amendments made by this title for the period beginning on the date of enactment of this Act and ending on the last day of the sixth fiscal year beginning after the effective date of the regulations promulgated by the Secretary to implement this title.
TITLE IV--ENFORCEMENT
SEC. 401. DOCUMENT AND VISA REQUIREMENTS.
(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:
`(3) Visas and immigration related document requirements-
`(A) Visas issued by the Secretary of State and immigration related documents issued by the Secretary of State or the Secretary of Homeland Security shall comply with authentication and biometric standards recognized by domestic and international standards organizations.
`(B) Such visas and documents shall--
`(i) be machine-readable and tamper-resistant;
`(ii) use biometric identifiers that are consistent with the requirements of section 303 of the Enhanced Border Security and Visa Entry Reform Act of 2002 (8 U.S.C. 1732), and represent the benefits and status set forth in such section;
`(iii) comply with the biometric and document identifying standards established by the International Civil Aviation Organization; and
`(iv) be compatible with the United States Visitor and Immigrant Status Indicator Technology and the employment verification system established under section 274E.
`(C) The information contained on the visas or immigration related documents described in subparagraph (B) shall include--
`(i) the alien's name, date and place of birth, alien registration or visa number, and, if applicable, social security number;
`(ii) the alien's citizenship and immigration status in the United States; and
`(iii) the date that such alien's authorization to work in the United States expires, if appropriate.'.
(b) Effective Date- The amendment made by subsection (a) shall take effect on the date that is 6 months after the date of enactment of this Act.
SEC. 402. EMPLOYMENT ELIGIBILITY CONFIRMATION SYSTEM.
(a) In General- Chapter 8 of title II of the Immigration and Nationality Act (8 U.S.C. 1321 et seq.) is amended by inserting after section 274D the following:
`EMPLOYMENT ELIGIBILITY
`SEC. 274E. (a) Employment Eligibility Confirmation System-
`(1) IN GENERAL- The Commissioner of Social Security, in consultation and coordination with the Secretary of Homeland Security, shall establish an Employment Eligibility Confirmation System (referred to in this section as the `System') through which the Commissioner responds to inquiries made by employers who have hired individuals concerning each individual's identity and employment authorization.
`(2) MAINTENANCE OF RECORDS- The Commissioner shall electronically maintain records by which compliance under the System may be verified.
`(3) OBJECTIVES OF THE SYSTEM- The System shall--
`(A) facilitate the eventual transition for all businesses from the employer verification system established in section 274A with the System;
`(B) utilize, as a central feature of the System, machine-readable documents that contain encrypted electronic information to verify employment eligibility; and
`(C) provide for the evidence of employment required under section 218A.
`(4) INITIAL RESPONSE- The System shall provide--
`(A) confirmation or a tentative nonconfirmation of an individual's identity and employment eligibility not later than 1 working day after the initial inquiry; and
`(B) an appropriate code indicating such confirmation or tentative nonconfirmation.
`(5) SECONDARY VERIFICATION PROCESS IN CASE OF TENTATIVE NONCONFIRMATION-
`(A) ESTABLISHMENT- For cases of tentative nonconfirmation, the Commissioner of Social Security, in consultation and coordination with the Secretary of Homeland Security, shall establish a secondary verification process. The employer shall make the secondary verification inquiry not later than 10 days after receiving a tentative nonconfirmation.
`(B) DISCREPANCIES- If an employee chooses to contest a secondary nonconfirmation, the employer shall provide the employee with a referral letter and instruct the employee to visit an office of the Department of Homeland Security or the Social Security Administration to resolve the discrepancy not later than 10 working days after the receipt of such referral letter in order to obtain confirmation.
`(C) FAILURE TO CONTEST- An individual's failure to contest a confirmation shall not constitute knowledge (as defined in section 274a.1(l) of title 8, Code of Federal Regulations.
`(6) DESIGN AND OPERATION OF SYSTEM- The System shall be designed, implemented, and operated--
`(A) to maximize its reliability and ease of use consistent with protecting the privacy and security of the underlying information through technical and physical safeguards;
`(B) to allow employers to verify that a newly hired individual is authorized to be employed;
`(C) to permit individuals to--
`(i) view their own records in order to ensure the accuracy of such records; and
`(ii) contact the appropriate agency to correct any errors through an expedited process established by the Commissioner of Social Security, in consultation and coordination with the Secretary of Homeland Security; and
`(D) to prevent discrimination based on national origin or citizenship status under section 274B.
`(7) UNLAWFUL USES OF SYSTEM- It shall be an unlawful immigration-related employment practice--
`(A) for employers or other third parties to use the System selectively or without authorization;
`(B) to use the System prior to an offer of employment;
`(C) to use the System to exclude 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;
`(D) to use the System to deny certain employment benefits, otherwise interfere with the labor rights of employees, or any other unlawful employment practice; or
`(E) to take adverse action against any person, including terminating or suspending an employee who has received a tentative nonconfirmation.
`(b) Employment Eligibility Database-
`(1) REQUIREMENT- The Commissioner of Social Security, in consultation and coordination with the Secretary of Homeland Security and other appropriate agencies, shall design, implement, and maintain an Employment Eligibility Database (referred to in this section as the `Database') as described in this subsection.
`(2) DATA- The Database shall include, for each individual who is not a citizen or national of the United States, but is authorized or seeking authorization to be employed in the United States, the individual's--
`(A) country of origin;
`(B) immigration status;
`(C) employment eligibility;
`(D) occupation;
`(E) metropolitan statistical area of employment;
`(F) annual compensation paid;
`(G) period of employment eligibility;
`(H) employment commencement date; and
`(I) employment termination date.
`(3) REVERIFICATION OF EMPLOYMENT ELIGIBILITY- The Commissioner of Social Security shall prescribe, by regulation, a system to annually reverify the employment eligibility of each individual described in this section--
`(A) by utilizing the machine-readable documents described in section 221(a)(3); or
`(B) if machine-readable documents are not available, by telephonic or electronic communication.
`(4) CONFIDENTIALITY-
`(A) ACCESS TO DATABASE- No officer or employee of any agency or department of the United States, other than individuals responsible for the verification of employment eligibility or for the evaluation of the employment verification program at the Social Security Administration, the Department of Homeland Security, and the Department of Labor, may have access to any information contained in the Database.
`(B) PROTECTION FROM UNAUTHORIZED DISCLOSURE- Information in the Database shall be adequately protected against unauthorized disclosure for other purposes, as provided in regulations established by the Commissioner of Social Security, in consultation with the Secretary of Homeland Security and the Secretary of Labor.
`(5) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated such sums as may be necessary to design, implement, and maintain the Database.
`(c) Gradual Implementation- The Commissioner of Social Security, in coordination with the Secretary of Homeland Security and the Secretary of Labor shall develop a plan to phase all workers into the Database and phase out the employer verification system established in section 274A over a period of time that the Commissioner determines to be appropriate.
`(d) Employer Responsibilities- Each employer shall--
`(1) notify employees and prospective employees of the use of the System and that the System may be used for immigration enforcement purposes;
`(2) verify the identification and employment authorization status for newly hired individuals described in section 101(a)(15)(H)(v)(a) not later than 3 days after the date of hire;
`(3) use--
`(A) a machine-readable document described in subsection (a)(3)(B); or
`(B) the telephonic or electronic system to access the Database;
`(4) provide, for each employer hired, the occupation, metropolitan statistical area of employment, and annual compensation paid;
`(5) retain the code received indicating confirmation or nonconfirmation, for use in investigations described in section 212(n)(2); and
`(6) provide a copy of the employment verification receipt to such employees.
`(e) Good-Faith Compliance-
`(1) AFFIRMATIVE DEFENSE- A person or entity that establishes good faith compliance with the requirements of this section with respect to the employment of an individual in the United States has established an affirmative defense that the person or entity has not violated this section.
`(2) LIMITATION- Paragraph (1) shall not apply if a person or entity engages in an unlawful immigration-related employment practice described in subsection (a)(7).'.
(b) Interim Directive- Before the implementation of the Employment Eligibility Confirmation System (referred to in this section as the `System') established under section 274E of the Immigration and Nationality Act, as added by subsection (a), the Commissioner of Social Security, in coordination with the Secretary of Homeland Security, shall, to the maximum extent practicable, implement an interim system to confirm employment eligibility that is consistent with the provisions of such section.
(c) Reports-
(1) IN GENERAL- Not later than 3 months after the last day of the second year and of the third year that the System is in effect, the Comptroller General of the United States shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report on the System.
(2) CONTENTS- Each report submitted under paragraph (1) shall include--
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