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					     Section by Section Summary of the Border
          Security, Economic Opportunity
        and Immigration Modernization Act

  (including Judiciary Committee Amendments)




By Greg Siskind

Siskind Susser, PC – Immigration Lawyers

gsiskind@visalaw.com

901-682-6455

www.visalaw.com
Section by Section Summary of the Border Security, Economic Opportunity and Immigration
Modernization Act – Title I – Border Security

By Greg Siskind – Siskind Susser, PC – Immigration Lawyers (gsiskind@visalaw.com)

Preliminary Sections

Section 1. Short Title; Table of Contents

The bill is called Border Security, Economic Opportunity and Immigration Modernization Act.



Section 2. Statement of Congressional Findings.

States that Congress recognizes that the bill is intended to protect American sovereignty and establish a
coherent and just system for integrating those who seek to join American society.



Section 3. Effectiveness Date Triggers.

Defines terms including

    -      Commission – the Southern Border Security Commission
    -      Comprehensive Southern Border Security Strategy – the strategy set by DHS to achieve and
           maintain an effectiveness rate of 90% or higher in all high risk border sectors.
    -      Effective control – persistent surveillance and an effectiveness rate of 90%+
    -      Effectiveness Rate – for a border sector, the percentage calculated by dividing the number of
           apprehensions and turn backs by the total number of illegal entries in a fiscal year.
    -      High Risk Border Sector – a border sector in which more than 30,000 people were apprended in
           the most recent fiscal year.
    -      Southern border – the US-Mexico border
    -      Southern Border Finance Strategy – strategy set by DHS to identify where fencing should be
           deployed.

Triggers

    1. No processing of RPI applications until DHS has submitted to Congress the Notice of
       Commencement of implementation of the Comprehensive Southern Border Security Strategy
       and the Southern Border Fencing Strategy under Section 5 of this bill.
    2. No adjustment of status of RPI immigrants may commence (except AgJobs and DREAM Act
       beneficiaries) until DHS, after consulting with the Comptroller General of the United States,
       submits to the President and Congress a written certification that
          a. The Comprehensive Southern Security Strategy has been submitted to Congress and is
               substantially deployed and substantially operational;
            b. The Southern Border Fencing Strategy has been submitted to Congress, implemented
               and substantially completed
            c. DHS has rolled out E-Verify to all employers
            d. The exit system at air and sea ports of entry is operational.

Adjustments may be permitted if litigation prevents any of these conditions from being met, the
implementation of the triggers is found unconstitutional by the Supreme Court or ten years have
elapsed since the date of enactment of the bill. Note that the new merit-based points categories don’t
allow for applications by RPI beneficiaries until after ten years.

The DHS Secretary is authorized to waive all legal requirements to ensure the requirements are met.

Limits review of this bill to US district courts and only constitutional aspects of the bill can be challenged.
DHS actions must be challenged within 60 days after the date of the contested action or decision. Only
the Supreme Court can review such a decision.



Leahy 4

Triggers on border security expanded to all border sectors, not just “high risk” sectors. [Grassley 1]

Section 3(a) of the preliminary section of the bill is amended to redefine “Southern Border Fencing
Strategy” by expanding it to include infrastructure and technology, including at ports of entry. Right now
the fencing strategy only discusses fencing.

Regarding the provision waiving the legal requirements for making improvements at the border, the
requirement that DHS provide a notice in the Federal Register is expanded to require DHS to provide an
explanation for the determination. Also the waiver in this section expires when DHS certifies that the
fencing strategy is substantially completed. [Leahy 4]




Section 4. Southern Border Security Commission.

 If effective control of the border is not achieved in five years, a Southern Border Security Commission
will be set up. It will be comprised of two members appointed by the President, two by the President
pro tempore of the Senate (one from each party), two by the Speaker of the House (one from each
party), four members who are either the governor (or an appointee of the governor) of the four border
states.

The Commission shall make recommendations to the President, DHS and Congress on policies to achieve
the border security goals in the triggers. Within six months, the Commission has to submit its report.
Section 5. Comprehensive Southern Border Security Strategy and Southern Border Fencing Strategy.

Within 180 days of passage of the bill, DHS shall prepare a strategy called the Comprehensive Southern
Border Security Strategy for maintaining effective control between the ports of entry in all high risk
border sectors along the Southern border.

The strategy shall explain how the enforcement goals outlined above will be met. DHS will report semi-
annually on the implementation of the strategy.

A Southern Border Fencing Strategy must be established within 180 days of passage of the bill. The
strategy will describe where fencing , infrastructure and technology should be deployed on the border.



Leahy 4

Adds the Senate Judiciary Committee and the House Judiciary Committee to the list of bodies that need
to get copied on the Comprehensive Southern Border Security Strategy and reports on the strategy
required in Section 5. [Grassley 2]

Section 5(b) of the preliminary section is amended to require DHS to consult with the Secretary of the
Interior, the Secretary of Agriculture, States, local governments, Indian tribes, and property owners in
the US to minimize the impact on the environment, culture, commerce and quality of life for the
communities near the fencing. [Leahy 4]



Section 6. Comprehensive Immigration Reform Trust Fund.

$6.5 billion will be transferred to a new Treasury Department fund to finance the implementation of this
law. $100,000,000,000 will be appropriated for start up costs including funding USCIS’ processing of
applications. Fees from various parts of the bill’s new programs will go in to this fund.

$3 billion will go to implementing the Comprehensive Southern Border Security Strategy.

$2 billion will go to activities called for by the Commission described in Section 4.

$1.5 billion will go for fencing.

The first $7.5 billion collected from the new fees provided in the bill will go for deficit reduction.



Grassley 5

Amends Section 6 of the preliminary section. Requires an annual audit of the Comprehensive
Immigration Reform Trust Fund provided for in this section. The audit is to be conducted jointly by the
Chief Financial Officer of DHS and the Inspector General of DHS. The audit must be submitted to
Congress and made available to the public. [Grassley 5]



Leahy 4

Section 6(a)(3)(A) of the preliminary section is modified to allow the allocated money for fencing to be
spent on infrastructure and technology along with fencing. [Leahy 4]




Section 7. Reference to the Immigration and Nationality Act.

Unless otherwise, noted, references to amendments in this bill pertain to the Immigration and
Nationality Act, Secretary means the DHS Secretary and Department means DHS.



Grassley 24

Section 9. Grant Accountability

Adds a new Section 9 to the bill’s preliminary section entitled “Grant Accountability”. The new section
start by defining the following terms:

    -     Awarding entities

    -     Nonprofit organization

    -     Unresolved audit finding

DHS’ Inspector General or the National Science Foundation Inspector General shall conduct audits of
grant recipients under the bill to prevent fraud, abuse and waste by grantees. Grant recipients found to
have an unresolved auditing finding are barred from grant funds for two fiscal years beginning in the
year after the end of the fiscal year. And priority is given to grant applicants that have not had
unresolved audit findings in the three years before submitting an application for a grant.

Nonprofits with funds in offshore accounts for the purpose of availing tax are barred from grants.
Nonprofits are required to disclose the process for determining compensation of its officers, directors,
trustees and keep employees.

There is a limit of $25,000 that can be used from grant funds to pay for conferences unless DHS or the
NSF provide prior written authorization.

The auditors are required to report annually to Congress on their work. [Grassley 24]
TITLE I – Border Security

Section 1101. Definitions.

The following terms are defined:

    -   Rural, high-trafficked areas (rural areas that provide smuggling routes)
    -   Northern Border (border between US and Canada)
    -   Southern border (full border between US and Mexico)
    -   Southwest border region (area in US within 100 miles of the Southern border)


Section 1102. Additional US Customs and Border Protection Officers.

By September 30, 2017, DHS will hire and train 3,500 new CBP officers. Removes the end date for the
Travel Promotion Fund fee of $10. Adds a new $16 border crossing fee.



Schumer 1

Amends Section 1102. Would permanently fund the advertising fund created to promote US tourism in
the Travel Promotion Act of 2009. [Schumer 1]



Section 1103. National Guard Support to Secure The Southern Border.

A state governor, with DOD approval, can order a state’s National Guard to the border to assist CBP to
perform operations as may be needed to secure the Southern border including constructing fencing,
increasing mobile surveillance systems, deploying drones, deploying radio communications, constructing
checkpoints, and providing assistance to CBP in rural, high-trafficked areas.



Section 1104. Enhancements of Existing Border Security Operations.

CBP shall increase the number of border crossing prosecutions in the Tucson Sector to up to 210
prosecutions per day. CBP shall reimburse state and local law enforcement agencies for any detention
costs related to this expansion. Additional judges will be appointed to handle the additional cases. $50
million is provided for this project.
FEMA shall enhance readiness on the borders through Operation Stonegarden.

DHS shall construct additional Border Patrol stations in the Southwest Border region needed to provide
full operational support in rural, high-trafficked areas.

DHS shall enhance security of the Southwest Border region by adding permanent bases for the Border
Patrol, upgrading existing bases, and ensuring that bases stop individuals from entering the US after
crossing the Southern border.



Feinstein 7

Amends Section 1104 by creating a competitive grant program to allocate funds to law enforcement
agencies for Operation Stonegarden for illegal immigration and drug smuggling prosecutions in the
Southwest Border Region.[Feinstein 7]



Feinstein 10

Provides for a new grant program to be added to Section 1104 that allows DHS and the Secretary of
Transportation, in consultation with the governors of on the Southern and Northern borders, to provide
grants to construct transportation and supporting infrastructure improvements at existing and new
international border crossings necessary to facilitate safe, secure and efficient cross border movement
of people, motor vehicles and cars.[Feinstein 10]



Feinstein 2

Section 1104 is amended to add a section to provide 8 new federal district judges in the four Southwest
Border states. [Feinstein 2]




Section 1105. Border Security on Certain Federal Land.

To achieve effective control of Federal lands, DHS shall authorize CBP personnel with immediate access
to Federal lands for security activities including patrols and deploying equipment. DHS may provide
training on the “natural and cultural resources” on the Federal land. DHS must prepare an
environmental impact statement but that may not result in a delay in the activities required under this
section. But plans can be altered based on the statement. This section doesn’t apply to private or state
land.
Feinstein 11

Amends Section 1105 to bar US Border Patrol from operating unarmed, unmanned aerial vehicles in the
San Diego and El Centro Sectors except within 3 miles of the Southern border. This doesn’t apply to
maritime operations of CBP. [Feinstein 11]



Section 1106. Equipment and Technology.

CBP shall deploy additional surveillance systems and drones in the Southwest Border region in order to
have 24 hour coverage.

CBP shall deploy new unarmed, unmanned aircraft and helicopters along the Southern border as well as
horse patrols.



Feinstein 8

Amends Section 1106 by providing for CBP to acquire and deploy watercraft and other equipment
related to maritime border-related anti-crime activities. [Feinstein 8]



Section 1107. Access to Emergency Personnel.

DHS will set up a two year grant program to improve emergency communications in the Southwest
Border region. This grant will allow individuals to purchase cell phones at his or her residence in order to
contact law enforcement to report illegal activities.

Funds are to be appropriated for five years to help state and local law enforcement agents purchase
P25-compliant radios in order to facilitate communication with Federal authorities.



Section 1108. Southwest Border Region Prosecution Initiative.

Provides for DOJ to reimburse state and local authorities for costs associated with prosecuting federally-
initiated immigration-related criminal cases declined by local offices of US Attorneys.



Feinstein 9
Amends Section 1108 and expands the provision providing for the reimbursement of state and local law
enforcement officials for prosecution and pre-trial detention. It would now reimburse for “prosecution,
pre-trial services and detention, clerical support, and public defenders’ services associated with the
prosecution.” [Feinstein 9]



Blumenthal 10

This provision would also amend Section 1108 by barring the reimbursement of state and local
governments if there is reason to believe that the individual’s underlying apprehension arose from
unlawful conduct by a law enforcement official. [Blumenthal 10]




Section 1109. Interagency Collaboration.

DOD will collaborate with DHS to identify technology used by DOD that could be used by CBP to improve
security of the Southern border.



Section 1110. SCAAP Reauthorization.

Reauthorizes the State Criminal Alien Assistance Program through 2015.



Feinstein 1

Replaces Section 1110 and inserts a new language providing for federal payments to state and local law
enforcement agencies based on charges of the people arrested as opposed to the convictions obtained
(which is what is in the first version of the bill). [Feinstein 1]




Section 1111. Use of Force.

Within 180 days after enactment, DHS shall issue policies governing the use of force by all DHS
personnel that require reporting establish procedures for dealing with complaints about force.



Section 1112. Training for Border Security and Immigration Enforcement Officers.
DHS shall ensure CBP, Border Patrol, ICE, US Air and Marine Division and agriculture agents within 100
miles of the Southern border or at any port of entry receive appropriate training in dealing with
fraudulent travel documents; civil, constitutional, human and privacy rights; the scope of enforcement
authorities; the use of force policies in Section 1111; immigration law; social and cultural sensitivity
toward border communities; the impact of border operations on communities; and environmental
concerns.



Section 1113. Department of Homeland Security Border Oversight Task Force.

DHS will set up an independent task force to make recommendations regarding immigration and border
enforcement strategies to consider the impact on border communities. The task force should also make
recommendations on improving collaboration with the communities and evaluate how agencies can
protect the rights of border residents. The task force will be comprised of local officials, advocates,
community members and Border Patrol representatives.



Flake 1

Amends Section 1113 by including private land owners on the DHS Border Oversight Task Force. [Flake
1]



Feinstein 6

Amends Section 1113 by requiring within 90 days of enactment of the bill that DHS establish standards
to ensure that children in CBP custody are afforded adequate health care, nutrition, clothing, bedding,
hygiene and access to phone calls to family members. [Feinstein 6]




Section 1114. Immigration Ombudsman.

The CIS Ombudsman’s duties will be expanded to cover CBP and ICE as well as USCIS.

Sessions 36

Amends Section 1114. Expands Ombudsman authority by allowing the agency go provide assistance to
victims of crimes committed by aliens or violence near the US border. [Sessions 36]



Hirono 24
Replaces Section 1114 regarding the Ombudsman. Requires the Ombudsman have a background in
immigration law as well as civil and human rights law.

Lists functions of the Ombudsman:

    -   Deal with complaints regarding DHS

    -   Conduct inspections of facilities in the immigration system

    -   Identify areas where individuals and employers have problems dealing with DHS

    -   To determine if an individual or employer is suffering or about to suffer a threat as a result of
        the way immigration laws are administered and to intervene as necessary.

    -   To propose changes in administrative practices at DHS to address problems

    -   To make recommendations regarding immigration and enforcement policies at CBP, ICE and
        USCIS

    -   To monitor the compliance of CBP, ICE and ICE with law, regulations and policy.



The Ombudsman shall have the authority to request the Inspector General of DHS to conduct
inspections, investigations and audits.

CBP, ICE and USCIS shall establish procedures to provide formal responses to recommendations
submitted by the Ombudsman.

The Ombudsman shall provide an annual report to the Judiciary Committees of the Senate and House.
[Hirono 24]




Section 1115. Reports.

DHS will submit to Congress a report detailing the effectiveness rate for each Border Patrol sector along
the Northern and Southern borders, the number of miles under persistent surveillance, the monthly
wait times per passenger to cross the Southern border and the allocations at each port of entry on the
Southern border.



Grassley 2
Section 1115 amended to add Senate Judiciary Committee and the House Judiciary Committee to copy
list for DHS report on effectiveness of border security measures and DOD report on interagency
cooperation in various border security operations. [Grassley 2]



Hirono 23

Adds a new Section 1115 entitled “Protection of Family Values in Apprehension”.

Defines the following terms:

    -   apprehended individual

    -   border

    -   child

    -   cooperating entity

    -   migration deterrence program



DHS and cooperating entities shall for each apprehended individual as soon as practicable after an
individual is apprehended inquire as to whether the person is a parent, legal guardian or primary
caregiver of a child or traveling with a spouse or child and ascertain whether repatriation of the
apprehended individual present any humanitarian concern related to the individual’s physical safety.
DHS shall ensure that with respect to a decision related to the repatriation or referral for prosecution of
the apprehended individual, due consideration is given to the best interest of the child, to family unity
and other public interest factors including humanitarian concerns related to the apprehended
individual’s physical safety.

Requires DHS to develop and provide training on this subject.

DHS has to report to Congress within a year on the impact of migration deterrence programs on parents,
guardians, primary caregivers of a child, individuals traveling with a spouse or child and individuals who
present humanitarian concerns related to the apprehended individual’s physical safety.

Rules will be implemented within 120 days of the enactment of the passage of the bill. [Hirono 23]




Section 1116. Severability and Delegation.
If a court rules any part of this bill is unconstitutional, the remainder of the law will not be affected. DHS
may delegate any authority in the bill to the Secretary of Agriculture, DOJ, DOD, HHS, DOS or SSA.



Leahy 4

Section 1117. Prohibition on Land Border Crossing Fees. DHS may not impose a border crossing fee at
the Southern or Northern border or conduct a study relating to the imposition of such a fee. [Leahy #1]

Includes a new Section 1117 entitled “Rule of Construction” stating that nothing may be construed to
authorize the deployment, procurement or construction of fencing along the Northern border. [Leahy 4]



Coons 2

At the end of Title I, a new Section is added entitled “Limitations on Dangerous Deportation Practices.”

Within a year and every 180 days thereafter, DHS must submit written certification to Congress that DHS
has only deported or removed migrants through an entry or exit point on the Southern border during
daylight hours. Exceptions are provided if there is a compelling government interest, there is an
applicable local arrangement for repatriating Mexican nationals or the migrant is not an unaccompanied
minor and the migrant is deported through the same point as the place where the person was
apprehended or the person agrees to be deported in such manner after being notified of the intended
manner of deportation or removal.

Requires DHS to submit a study within a year of the Alien Transfer Exit Program.

Requires the return on nonperishable belongings to the migrant that are confiscated before repatriation
to the extent practicable. [Coons 2]

Section by Section Summary of the Border Security, Economic Opportunity and Immigration
Modernization Act – The Registered Provisional Immigrants and DREAM Sections

By Greg Siskind – Siskind Susser, PC – Immigration Lawyers (gsiskind@visalaw.com)

TITLE II – Immigrant Visas

Subtitle A – Registration and Adjustment of Registered Provisional Immigrants

Section 2101. Registered Provisional Immigrant Status.

Creates a new Section 245B of the Immigration and Nationality Act.

Section 245B(a) - After conducting national security and law enforcement clearances, DHS may grant
“registered provisional immigrant status” to an alien who has paid the required fee and penalty, who
meets the eligibility requirements and submits an application in a timely manner (stated later).
The requirements –

   1. Physical presence.
      - Been physically present in US on the date application for RPI submitted
      - Been physically present in the US on or before 12/31/2011
      - Maintained continuous physical presence in the US from 12/31/2011 until the date the
           person is granted RPI status
      - Absences after 12/31/2011 okay if the absences are “brief, casual and innocent”
   2. Grounds for ineligibility
           a. Convictions for felonies in the convicting jurisdiction (other than state/local convictions
               for which a key element was the alien’s immigration status)
           b. Aggravated felonies (as defined in the INA)
           c. 3 or more misdemeanor offenses for acts on 3 or more different dates (other than
               minor traffic offenses or state/local offenses for which immigration status was a key
               element)
           d. Any offense under foreign law except for purely political offenses which, if committed in
               the US, would render the person inadmissible.
           e. Unlawful voting
           f. Any other grounds of inadmissibility except the public charge, labor certification, and
               immigration violations (excluding those arrested for illegal reentries)
           g. Failure to attend a removal proceeding is not a ground of ineligibility unless the date on
               which the person failed to appear is after the date of enactment of the bill
           h. Terrorist threats
           i. People legally in the US including green card holders, asylee/refugees and
               nonimmigrants.
           j. Waivers permitted for humanitarian purposes, to ensure family unity, or if such a waiver
               is otherwise in the public interest. But not available for many convicted criminal aliens,
               persecutors, human traffickers and money launderers. Also not available for those
               inadmissible on security grounds, polygamy, child abductors, unlawful voters and
               former citizens who renounced citizenship to avoid taxation. Also, no waivers for people
               who make misrepresentations on their RPI applications.
           k. Convictions don’t include expungements, set asides, or their equivalent.
   3. People found to have previously submitted a frivolous asylum application are not barred from
      RPI status. Also, failing to abide by a voluntary departure order in order to take advantage of RPI
      is okay.
   4. Spouses and children can qualify as RPI dependents if the spouses or child is physically present
      in the US on the day the principle’s RPI status is granted and also present on 12/31/2012. They
      have to also meet the rest of the RPI requirements except the RPI’s physical presence
      requirement. Divorce or death or domestic violence can be dealt with by reapplying for RPI even
      if the physical presence tests for an RPI cannot be met. Same for a spouse or parent’s RPI status
      being terminated or revoked.
Application process.

    1. Applicants apply by submitting an application during the application period. DHS will accept
       applications for one year beginning on the date they publish rules in the Federal Register. DHS
       can extend that period for up to 18 more months.
    2. All back taxes must be paid before an application can be filed. Applicants can demonstrate
       compliance by submitting documents determined by the Treasury Department
    3. DHS will provide a single application process for aliens, their spouses and their children.
    4. Interviews may be required.

For aliens apprehended before or during the application period who appear “prima facie” eligible for RPI
status, DHS shall provide the person a reasonable opportunity to file an application during the
application period and may not remove the person until a final administrative determination is made on
the RPI application.

Eligibility for RPI status after departure. People who departed subject to an order of exclusion,
deportation or removal who are outside the US or who reentered after 12/31/2011 without receiving
DHS’s consent to reapply for admission are not eligible to apply for RPI status. DHS may waive this bar,
however, if the person is the spouse or child of a US citizen or green card holder or is the parent of a
child who is a citizen or permanent resident and the person can meet the physical presence
requirements. Also, the waiver is available if the person is outside the US, was 16 or older on the date on
which the alien applied for RPI status and was present in the US for at least three years during the six
year period immediately prior to enactment of the new law.

Suspension of Removal During Application Period. An RPI may not be detained or removed unless DHS
finds that the person is or has become ineligible for RPI status or the status has been revoked.

Beginning on the date of enactment, if DHS determines that a person is in removal, deportation, or
exclusion proceedings before an immigration judge and is prima facie eligible for RPI, DHS will give the
person an opportunity to file for RPI status and upon a joint motion by DHS and the alien, the judge shall
Terminate proceedings and give the person a chance to apply for RPI status. If EOIR discovers a person
in proceedings is eligible, they shall notify DHS and if DHS doesn’t dispute within 7 days after
notification, EOIR, upon consent of the alien, shall terminate proceedings and allow the person to apply
for RPI status.

If a person is otherwise eligible for RPI status and has been order excluded, deported or removed or
ordered to depart voluntarily, the person may apply for RPI status and if the application is granted, the
person may file a motion to reopen the order and the motion will be granted unless the person is
otherwise ineligible.

From the point where a person files for RPI status and the date DHS makes a decision, the person may
receive advance parole status to reenter the US if “urgent humanitarian circumstances” compel travel.
The person may not be removed during that period unless DHS makes a prima facie determination that
the person is ineligible for RPI status. A pending RPI applicant shall not be considered unlawfully present
and not considered an unauthorized alien. RPIs and RPI applicants granted advance parole are not
barred from readmission.

DJS will provide applicants for RPI status with a receipt as soon as practical after filing.

Employers who learn an employee has filed for RPI status or will apply for RPI status once the
application period opens is not in violation of IRCA if the employer continues to employer the person
during the pending period.

Security and Law Enforcement Clearances. DHS may not grant RPI status unless the applicant submits
biometric and biographic data in accordance with procedures set by DHS. The data will be used to
conduct a background check. That check must be completed before RPI status will be granted.

The initial period of RPI status will be six years unless revoked before that. Additional six year extensions
are permitted if the person remains eligible for RPI status.

RPI status may not be extended unless the person during the period of RPI status the person was
regularly employed as an RPI and has no unemployment periods greater than 60 days or is likely to
become a public charge or the person can show income or resources of at least 100% of the Federal
poverty level throughout the period of admission.

Applicants may not be granted extensions of RPI status unless they have paid taxes during the RPI
period.

People over 16 applying for RPI status or an extension of RPI status shall pay a fee to DHS. A maximum
fee per family may be established. Certain classes of individuals may be exempted from the fees.

A penalty of $1000 shall also be assessed on applicants over the age of 21. $500 will be due at the time
of the initial application and the remaining $500 shall be paid in periodic installments that shall be
completed before an extension is granted.
An application will be denied if the person fails to submit requested initial evidence (including
biometrics) or any requested additional evidence by the date DHS determines. Denied applicants can
file an amended petition if the initial application was filed during the application period and contained
all the required information and fees that were missing from the initial application.

DHS will provide an RPI document to each approved applicant. The document will be machine-readable
and tamper resistant and have a digitized photograph. The card will be valid for travel and employment.
The card will be valid for up to three years.
Unless DHS determines that a DACA recipient has engaged in conduct making the person ineligible for
RPI status, DHS may grant RPI status after new background clearances are conducted.

RPI recipients are authorized to work and travel without having to obtain a visa if the person has an
unexpired RPI document (described above) or a temporary travel document issued to the RPI if the RPI
card was lost, stolen or destroyed.

RPI’s may not leave for more than 180 days unless the failure to return within 180 days was due to
extenuating circumstances beyond the person’s control.

People granted RPI status shall be considered to have been admitted and lawfully present in the US in
such status as of the date the application was filed. A person granted RPI is lawfully admitted to the US
and may not be classified as a non-immigrant as an alien who has been lawfully admitted for permanent
resident.

DHS may revoke the status of an RPI at any time after providing notice to the person after all applicable
review procedures have been conducted if the person no longer is eligible for RPI status, knowingly used
RPI documentation unlawfully or fraudulently, or was absent from the US for more than 180 days (with
an extenuating circumstances exception). DHS may request additional evidence or an interview before
revoking.

RPIs are not eligible for means-tested public benefits and various Obamacare benefits.

SSA shall set up a system to allow for the assignment of Social Security numbers and issue SS cards to
each person granted RPI status.

DHS shall broadly disseminate in various languages information on RPI status.

RPIs are eligible to enlist in the Armed Forces.




Coons 10

Amends Section 2101 on RPIs. An individual who is authorized to be employed in the United States may
not be denied a professional, commercial, or business license on the basis of his or her immigration
status.




Graham 3
 Amends Section 2101. DHS, in consultation with the Secretary of State and other interagency partners,
shall conduct an additional security screening upon determining that an alien or his or her dependent is
or was a citizen or long-term resident of a region or country known to pose a threat or that contains
groups that pose a threat to the national security of the US.



Hirono 12

Amends Section 2101. Permits the entire penalty required for initial RPI status to be paid in periodic
installments that shall be completed before the alien may be granted an extension of status. Previous
version only allowed half of the required amount to be paid in installments.



Hirono 20

Amends Section 2101. On the RPI application, DHS shall collect information DHS determines to be
necessary and appropriate including an explanation of how, when and where the alien entered the US,
the country the alien resided in before entering the US and other demographic information specified by
DHS.

Extends privacy protections to data on the form.



Cornyn 4

Changes Section 2101’s provision allowing certain people previously removed to get RPI status if they
get a waiver. Adds a new section to give notice to crime victims if a waiver is granted. If the original
prosecuting agency wants to cooperate with DHS, DHS will make an effort to identify the victim and give
the victim written notice that the alien is being considered for a waiver. The victim will be given the
opportunity to offer an opinion regarding the granting of the waiver. The amendment also states that
the determination on the waiver may not be made solely based on the victim’s consultation.



Flake 4

Amends Section 2101. After the ban on RPIs receiving federal means-tested public benefits a new
requirement is added for HHS to conduct regular audits to ensure that RPIs are not fraudulently
receiving any public benefits. And anyone convicted of fraudulently claiming such a benefit shall have
their RPI status revoked.



Flake 3
Amends Section 2101. Requires RPIs to go through an additional background check at the time of
renewal of the RPI status.

Allows RPI’s spouse/children to get derivative status if they were physically present before 12/31/2012
except from brief, casual, and innocent absences. Also applies to blue card dependents. And applies to
green card applications after ten years for the RPIs.




Section 2102. Adjustment of Status of Registered Provisional Immigrants.

A new INA Section 245C is granted relating to the adjustment of status of RPIs. DHS may adjust an RPI
to permanent residency if the requirements of this section are met.

    1. RPI status was granted.
    2. The applicant proves that he or she was not continuously absent from the US for more than 180
       days (with an extenuating circumstances exception).
    3. None of the grounds of inadmissibility applicable to RPIs is applicable.
    4. If DHS is in the process of revoking the RPI status, DHS may not approve adjustment.
    5. No taxes are owing.
    6. The applicant was regularly employed throughout the RPI period. The 60 day, public charge or
       average income exceptions noted above apply here as well. The applicant is responsible for
       providing evidence of employment and SS, IRS and local/state tax records. Additional records
       like bank records, business records, employer records, union records, affidavits and school
       records may be submitted. DHS may designate additional documents that can be submitted.
       Employment can be with multiple employers.
    7. Full-time attendance at a high school, university, education, literacy or career training program
       or GED program can substitute for employment.
    8. Exceptions to the employment/education requirement available based on being under 21 on the
       date the first extension or RPI status is submitted, being over 60 when filing for an extension of
       RPI status, or over 65 when filing for adjustment of status or the person has a physical or mental
       disability or was pregnant. Dependents are also not subject to the requirement. There is an
       exception as well for people on medical leave, maternity leave, or other leave authorized by law
       or was the primary caretaker of a child or person who requires supervision or is unable to care
       for himself or herself or was unable to work due to circumstances outside the applicant’s
       control. Finally, there is a general waiver available for those who can show an extreme hardship
       to himself or a spouse, parent or child who is a US citizen or permanent resident.
    9. Applicants must meet the English requirements contained in Section 312 of the naturalization
       rules of the INA or is enrolled in an acceptable English instructional program. Satisfying the
       Section 312 requirement for adjustment purposes will cover the person when they apply for
          naturalization. An exception is available if a person is unable to comply because of a physical or
          developmental disability or mental impairment. DHS may waive the requirement for those over
          70 years of age when the application is filed.
    10.   Applicants must submit proof of having registered for Selective Service (if required on or before
          the date that RPI status is approved).
    11.   Applications may not be approved until after DHS certifies that immigrant visas filed under the
          family and employment categories before the enactment of the bill have been approved.
    12.   DHS may interview RPI-based adjustment applicants.
    13.   No RPI may adjust until new background checks are cleared.
    14.   Fees may be charged (not clear if they would be different than other adjustment applicants). A
          maximum fee per family may be established and exempt individuals in defined classes.
    15.    Applicants over 21 on the date the bill was introduced in the Senate (4/17/2013) shall pay a
          $1000 penalty. The fee may be paid in installments in a process established by DHS.
    16.   APPLICANTS MAY ONLY ADJUST UNDER SECTION 2302 OF THE BILL.

Naturalization

Three year post-green card residency requirement for people lawfully present in the US and eligible for
work authorization for not less than ten years before becoming a lawful permanent resident. Must have
been in US for at least 50% of the three year period and 90 days in the state.

This seemingly benefits all long term residents including people waiting a long time for green cards
because of backlogs.




Blumenthal 12

Amends Section 2102. The bar on applying for naturalization while an RPI is amended. An alien who has
served in the armed forces for at least one year and has been discharged honorably may be naturalized.




Section 2103. The DREAM Act.

    Adds a new Section 245D to the INA to cover DREAMers.

    Definitions are included for the following terms

          -   Institution of Higher Education – based on the Higher Education Act of ‘65
          -   Secretary - DHS Secretary
        -   Uniformed Services – Based on Section 101(a)(5) of Title 10 of the US Code

DHS may adjust status of RPIs to green cards if

        -   The person has been an RPI for at least 5 years
        -   Was younger than 16 on the date the person entered the US
        -   Earned a high school diploma, a commensurate alternative award from a public or private
            high school or secondary school or obtained a GED certificate in the US
        -   Has acquired a degree from an institution of higher education or has completed at least 2
            years, in good standing, in a program for a bachelor’s degree or higher degree in the US or
            has served in the Uniformed Services for at least 4 years and, if discharged, received an
            honorable discharge
        -   Has provided a list of each secondary school that the applicant has attended in the US

DHS may adjust people not meeting the higher education/Uniformed Services requirement if the
applicant can demonstrate “compelling circumstances”.

Must meet English requirements applicable in naturalization cases unless the person has physical or
developmental disabilities or mental impairment.

Must submit biometric and biographic data and complete a background check.

DHS may develop streamlined procedures for DACA recipients.

DREAMers will be considered the same as permanent residents during their RPI period for purposes of
qualifying for naturalization. So they should be able to file for naturalization as soon as they receive their
green cards.

NO GREEN CARD CAPS FOR ANY RPI-BASED GREEN CARD APPLICANTS (EITHER DREAM (245D) OR
REGULAR (245C)).

Repeals the IIRAIRA section limiting states from granting in state tuition to out of status immigrants.
That repeal is retroactive to the date of the original IIRAIRA enactment date.


Hirono 21

Amends Section 2103. RPIs who entered the US before 16 and aliens granted blue card status shall be
eligible for certain student aide benefits including federal student loans and work study.
Section 2104. Additional Requirements.

Adds a new Section 245E to the Immigration and Nationality Act.

Adds privacy protections for information provided as part of an RPI or related adjustment application.
DHS can share information with law enforcement, intelligence and national security agencies as well as
agencies with DHS if part of a felony or national security investigation or prosecution or to a coroner.

Employers are insulated from liability for past employment of someone without status if they provide
employment records necessary for someone to meet the RPI requirements. The protection does not
apply if the employment records are deemed to be fraudulent.

An appeals process will be available for 245B, 245C, 245D and 245F applicants. Only one appeal may be
filed per application. Unlawful presence will not accumulate during an appeal period. Cases may be
appealed to a US District Court.



Section 2105. Criminal Penalty

Persons who misuse information provided in an RPI application are subject to a $10,000 penalty.



Section 2106. Grant Programs to Assist Eligible Applicants.

USCIS will set up a program to award grants to nonprofit organizations to assist RPI and related
adjustment applicants. Up to $50,000,000 will be available for this grant program.


Feinstein 13

Section 2106 modification. Extends the grant program applicable to supporting RPI adjustments to blue
card adjustments.




Section 2107. Conforming Amendments to the Social Security Act.

RPI and related green card recipients may correct their Social Security records.

Also states that a “compelling reason” for a state not to file a petition to terminate parental rights is the
removal of a parent from the US or the involvement of the parent in an immigration proceeding unless
the parent is unfit or unwilling to be a parent to the child.
States should consider giving preference to an adult relative over a nonrelated caregiver when a parent
is removed from the country and should coordinate with DHS to ensure that parents who wish for their
child to accompany them are given adequate time and assistance to obtain a passport and visa and to
collect all vital records such as birth certificate, health and educational records and other information.



Section 2108. Government Contracting and Acquisition of Real Property Interest.

Gives DHS broad authority to hire the necessary personnel and acquire the necessary real estate to
meet the requirements of this section.



Section 2109. Long-Term Legal Residents of the Commonwealth of the Northern Mariana Islands

Creates a new CNMI-only green card category for long term residents of the Commonwealth.



Section 2110. Rulemaking

Within a year of enactment of the bill, DHS, DOJ and DOS shall issue interim final regulations to
implement this section of the bill which will take effect immediately upon publication in the Federal
Register.
Section by Section Summary of the Border Security, Economic Opportunity and Immigration
Modernization Act – Title II, part 3 – AgJobs

By Greg Siskind – Siskind Susser, PC – Immigration Lawyers (gsiskind@visalaw.com)

SUBTITLE B – Agricultural Worker Program

Section 2201. Short Title

The bill incorporates the Agricultural Worker Program Act of 2013.



Section 2202. Definitions.

The following terms are defined:

    -   Blue Card Status – those temporarily admitted under this program

    -   Agricultural Employment - refers to def. in the Migrant and Seasonal Agricultural Worker
        Protection Act (29 USC 1802) and includes farming, raising of livestock, bees, fur-bearing
        animals, or poultry and any practices (including forestry or lumbering) performed by a farmer or
        on a farm.

    -   Child – Same as INA’s definition of child

    -   Employer – includes employers, farm labor contractors and any agricultural associations that
        employs workers in agricultural employment.

    -   Qualified Designated Entity – qualified farm labor organizations designated by DHS and any
        other organizations DHS designates

    -   Work Day – Any day someone is employed 5.75 hours or more in agricultural employment



Chapter 1 – Program for Earned Status Adjustment of Agricultural Workers

Subchapter A – Blue Card Status

Section 2211. Requirements for Blue Card Status.

USCIS, after conducting appropriate background checks, may grant blue card status to

    -   anyone who performed agricultural employment in the US for not fewer than 575 hours or 100
        work days during the 2 year period ending on 12/31/2012.

    -   Spouses and children of such workers
    -   Submits an application in time (described below)

    -   Is not ineligible for any of the grounds applicable to people in the legalization program described
        in the new INA Section245B for RPIs other than an H-2A nonimmigrant.

Application

Blue card applicants and qualifying dependents will file an application during the one year period
beginning on the day USCIS publishes regulations in the Federal Register. USCIS has discretion to extend
the period for 18 more months. Non-immigrants who have used the H-2A program can apply from
outside the US.

A single application may be submitted for a family.

Interviews may be required.

Like the legalization beneficiaries, people apprehended before or during the application period will be
given an opportunity to apply if they appear eligible for the program. Blue card holders may not be
detained unless DHS determines the person has become ineligible or blue card status has been revoked.
People in removal proceedings can get out of them if they appear eligible for blue cards.

During the application period, blue card holders may be eligible for advance parole, but only for “urgent
humanitarian circumstances.” Blue card applicants are not considered unlawfully present during the
application period and are not considered unauthorized aliens for IRCA purposes (i.e. they can work
legally).

Applicants will be given a filing receipt.

Employers who know their employees are applying for blue cards are not in violation of IRCA if the
employer continues to employ the employee.

Departure from the US for people ordered deported but who are eligible for blue cards will not render
the person ineligible if they have advance parole or a blue card.

Applicants must provide biometrics and go through background clearances.

Duration of status and extension.

Blue cards status will only go out eight years from the date rules are published. Extensions are only
permitted unless the applicant passes a new background clearance.

Applicants over 16 will pay a processing fee. A maximum fee for a whole family may be instituted.

Applications may be denied if the applicants fail to submit requested initial evidence or fail to respond in
a timely manner to a request for additional evidence. But an amended application may be submitted
with the missing items.
Blue card recipients will receive a machine-readable, tamper resistant document with a tamper-resistant
document valid for the period of admission. It serves as a work/travel document.

Blue card holders may not leave for more than 180 days unless the failure to return within 180 days was
due to extenuating circumstances beyond the person’s control.

DHS may revoke the status of a blue card holder at any time after providing notice to the person after all
applicable review procedures have been conducted if the person no longer is eligible for blue card
status, knowingly used RPI documentation unlawfully or fraudulently, or was absent from the US for
more than 180 days (with an extenuating circumstances exception). DHS may request additional
evidence or an interview before revoking.

Blue card holders are not eligible for means-tested public benefits and various Obamacare benefits.

Blue card holders can convert to RPI status if DHS determines they cannot meet the work requirements
applicable to blue card holders.

Blue card employers must provide a written report annually on their employment of the blue card
holder. A $500 penalty is due if an employer fails to report.

DHS must issue a rule within a year of the date of enactment for issuing blue cards.

Employment records provided to support a blue card application may not be used against the employer
in a civil or criminal prosecution relating to IRCA violations. The protections don’t apply if the alien or
employer submits fraudulent records.

Section 2212. Adjustment to Permanent Resident Status.

After five years DHS may adjust blue card holders to permanent resident status if the person

    -   During the 8 years beginning on the date of enactment of the bill, performed 100 work days of
        agricultural employment during each of 5 years; or
    -   During the 5 year beginning on the date of enactment, performed 150 work days during each of
        3 years.

Spouses and children can qualify as derivatives as long as child was a child on the date the alien was
granted blue card status.

DHS may credit the applicant with not more than 12 additional months to meet the requirement if they
inability to work was based on a medical condition.
Adjustment may be denied if DHS determines the person is no longer eligible for blue card status or
failed to perform the qualifying employment noted above.

The grounds of inadmissibility that were waived for obtaining blue card status also don’t apply for
adjustment of blue card applicants.

Green card applicants must pay their taxes and document they are current.

Numerical limits on green cards don’t apply to blue card applicants seeking a green card.

Interviews may be required by DHS.

DHS may charge fees for adjustments but may set a family maximum and also waive the fees in the
same was as possible for RPIs.

Workers are responsible documenting their work history in their adjustment applications.

Applicants who make false or fraudulent statements in blue card and related green card applications
subject to criminal penalties.

Blue card holders may only adjust to LPR status under 245F (ag workers), 245C (RPIs), or 2302 (merit-
based track two). 245F adjustments are exempt from numerical limits.




Section 2213. Use of Information.

Beginning on the first day of the blue card application period DHS shall broadly disseminate information
about the program.



Section 2214. Reports on Blue Cards.

Not later than 12/30/2013 and annually for the next 8 years, DHS shall submit a report to Congress on
the usage of the blue card program.



Section 2215. Authorization of Appropriations.

Congress will make appropriations as necessary to implement the program for FY 2013 and 2014.
Subchapter B – Correction of Social Security Records

Section 2221. Correction of Social Security Records.

Insulates blue card holders from liability for past misstatements.




Chapter 2 – Nonimmigrant Agricultural Visa Program

Section 2231. Nonimmigrant Classification For Non-Immigrant Agricultural Workers.

Creates a new W-3 visa for agricultural workers who are employed under a contract and a W-2 for at will
agricultural employees.



Section 2232. Establishment of Nonimmigrant Agricultural Worker Program.

Definitions –

    -   Agricultural employment

    -   At-will agricultural worker

    -   Blue card

    -   Contract agricultural worker

    -   Designated agricultural employer

    -   Electronic job registry

    -   Employer

    -   Nonimmigrant agricultural worker

    -   Program

    -   Secretary

    -   United States Worker



Requirements
Only designated agricultural employers and nonimmigrant agricultural workers can participate.

Limit of 112,333/year for four years. Allocated on a quarterly basis. Like the H-1B, if a W-3 or W-2
worker is counted against the cap, the next employer doesn’t have to claim a cap number.

DHS may increase or decrease the cap during the first 5 years based on shortage data submitted by
agricultural producers and worker organizations, unemployment data, demand for blue cards, demand
for W-3 and W-2 visas, and wage data. DHS may establish rules to allow for immediately adjusting
numbers if there is a labor shortage. DHS has 30 days to make a decision after receiving a petition.
Emergency procedures during first five fiscal years and thereafter.

The factors listed above will be used by DHS to set a cap in years six and later.

Requirements for W-2 and W-3 workers.

Workers are ineligible if they have violated the terms of admission as an NIV agricultural worker in prior
three years. An exception is made for contractual workers who leave or are terminated. Workers must
pass background checks. People with removal orders who are outside the US or illegally entered the US
after 12/31/2012 are ineligible, but DHS may waive this ground for spouses and children of citizens and
green card holders as well as the parents of citizens and permanent residents. Also, people otherwise
eligible as DREAMers who are 16 when applying and were physically in the US for 3 of 6 years
immediately preceding the date of the enactment are eligible for a waiver.

W-2s and W-3s can get an initial 3 year period of admission and can renew for 1 additional 3 year
period. The worker must then leave the US for 3 months before seeking to come again as a W
agricultural worker.

Loss of status –

W ag workers must leave the US if they have completed a contract with a designated ag employer and is
no longer employed in agricultural employment with another ag employer. A 60 day grace period is
provided for these workers

W ag workers who are at-will and are not continuously employed by a designated ag employer must
leave. DHS may grant a waiver for up to 60 days without status if the worker was injured or displaced by
a natural disaster.

Workers may leave the US for up to 60 days in any fiscal year while in W ag status and the 60 day limit
noted above would be tolled.



Portability –
Contract ag workers are portable between designated ag employers. Contract workers who abandon a
job must depart and reenter the US to pursue a new job offer and are not entitled to the 75% payment
guarantee (described below).

Termination by mutual agreement shall not be considered voluntary abandonment.

At will ag workers are free to move between designated ag employers.

No derivative status for spouses and children (though they can qualify for W-2 or W-3 status on their
own.


Employer requirements –

Designated Agricultural Employer Status – employers must register for designated status by submitting
an application to DHS through the Farm Service Agency in a geographic area or electronically directly
with DHS that includes documentation that the employer is engaged in agriculture and that they need
workers. DHS will include in the registration the number of workers the employer will need and the
periods of employment authorized.

Employers will be designated for three years. At the end of three years, employers may renew for
another three years if they continue to qualify.

DHS s to provide assistance to employers, either directly or through the Farm Service Agency, assistance
with the application process.

Employers seeking workers after designation would submit an application with USCIS not later than 45
days before the workers are needed. They must include an attestation listing the number of workers,
the number that will be on a contract and the number to be employed at-will, the anticipated dates of
employment, documentation of the contracts or written disclosure of employment terms, information
submitted to the state workforce agency and the record of US workers who have applied and the
results. DHS must set procedures for processing cases. DHS should render a decision within 7 days and
deliver a notice of approval or denial to the petitioner.

Portability – Once an employer has submitted a petition for W-2 and W-3 workers, a W ag worker in the
US can begin employment with the new employer.

Recruiting –

Employers must list jobs for 60 days with the local office of the state workforce agency and authorize
the posting on America’s Job Bank or something similar for 45 days. Employers must keep records of US
applicants who are eligible, able, willing and qualified for the work and must show that employment was
offered to such workers if they are equally or better qualified. Preference over W-2 and W-3 workers is
also to be made for blue card workers. Employers may also hire H-2A workers if they worked for 3 of 4
years in the period preceding termination of the H-2A program and the employer pays the “adverse
effect wage rate”.

Employers may not have displaced US workers in the preceding 30 days. Employers cannot bring on W-2
andW-3 workers if there is a labor dispute in progress.

Employers offering contracts must guarantee employment for the hourly equivalent of at least 75% of
the work days of the total period of employment. If a worker can’t perform because of a disaster or
other reason beyond the control of the employer, the employer may terminate the worker’s
employment and the employer must pay the worker for the days elapsed from the first work day after
the arrival of the worker. The employer should try to help with transferring the employee or assisting
with return transportation home if a transfer does not take place.

Employers are required to provide workers compensation insurance at no cost to the worker and shall
provide benefits at least equal to those provided under state law for comparable employment.

Deductions from wages are only permitted if they are authorized by law or are reasonable and
customary in the occupation and area of employment of the worker.

Employers must provide no-cost housing that meets Federal standards for temporary labor camps or
applicable local standards for rental or public accommodation housing or other similar housing. If the
employer arranges public housing, the employer shall pay the landlord directly. Workers who damage
their housing are responsible for the reasonable cost of repairing the damage.

Employers may also provide a “reasonable housing allowance” instead of arranging for housing, but the
employer should assist the employee in locating suitable housing. The allowance cannot be used for
housing that is owned or controlled by the employer.

Contract workers can only get a housing allowance if the Governor of the state certifies to DHS that
there is adequate housing available in the area of intended employment. The certification must be
updated at least every three years. If an allowance is provided in a nonmetropolitan county, the amount
of the allowance must be the average fair market rental for existing housing in nonmetropolitan
counties in the state, as determined by HUD based on a 2 bedroom unit and an assumption of 2 persons
per bedroom. In metropolitan counties, the amount shall be the average fair market rental for housing
in that particular metro area for a 2 bedroom unit (2 persons per bedroom).

The housing provisions don’t apply to workers who commute in from within 50 miles from a town on the
other side of the border.

Employers must provide or reimburse a nonimmigrant agricultural worker for the cost of transportation
from a contract worker’s residence in the US to the worker’s place of employment. After 27 months of
work are completed, the designated ag employer must reimburse the employee for the reasonable cost
of the worker’s transportation and subsistence from the place of employment to the place from which
the worker came from abroad to the employerA contract worker is also entitled to transportation and
subsistence reimbursement if they completed at least 27 months under a contract for the designated
employer.

If a worker finds another employer, the next employer is responsible for transportation costs.

Violating employers may be subject to fines and potential debarment from the program for up to 3
years by DHS.

Wages –

Employees paid by the piece must have the payment rate specified in the job offer and be no more than
those which have been normally required by other employers in the geographic area, unless DHS
approves a higher standard.

Workers are divided in to the following categories for wage purposes –

    -   First line supervisors of farming, fishing and forestry

    -   Animal breeders

    -   Graders and sorters, agricultural products

    -   Agricultural equipment operateor

    -   Farmworkers and laborers, crop, nursery and greenhouse

    -   Farmworkers, farm, ranch and aquacultural animals

The wage rate from FY 2014 to FY 2016 shall be the higher of the local minimum wage or specific rates
listed in the bill for these various occupations. DHS is to index an increase in the required wage rate
based on the movement of the Consumer Price Index but ranging between 1.5 and 2.5 percent per year.
DHS may also factor in whether the amount would adversely affect wages paid to US workers and
whether the H-2A program has depressed wages for US workers and whether the wages offered are
enough to keep families over the poverty thresholds .

Equal wages, benefits and working conditions –

Employers must offer US workers no less than the same benefits, wages and working conditions as
nonimmigrant workers.

Employers are not required to provide housing for similarly situated US workers.

Employers must provide an attestation whether the employer is a dependent employer with at least
60% of its workers who are not US workers.

Worker protections and dispute resolution –

W Ag workers entitled to the same rights as their US counterparts.
W Ag workers entitled to protection under the Migrant and Seasonal Agricultural Worker Protection Act
and shall be treated like green card holders for purposes of qualifying for legal services under the Legal
Services Corporation Act on matters relating to wages, housing, transportation and other employment
rights. The Federal Mediation and Conciliation Services shall be available to assist in resolving disputes.
$500K per year is allocated to the FMCS for this purpose.

DOL has the power to investigate employers who fail to comply with the program rules. Any aggrieved
party including a bargaining representative can file a complaint within a year of the alleged violation.
DOL can fine up to $1000 per misrepresentation violation and debar use of W ag visas for 1 year. More
serious violators can be subjected to a $5000 per violation fine, equitable relief, and 2 years debarment.
Employers violating the displacement provisions can be hit with a $15,000 per violation fine and 3 years
debarment. The maximum civil penalty will be $90,000.

DOL can assess back wages, travel and subsistence costs, housing costs, etc. for the benefit of the
worker. But a worker who has filed an administrative complaint can’t simultaneously pursue a separate
civil complaint based on the same violations.

The section contains whistleblower protections for complaining workers.

Associations filing cases on behalf of an employer are not liable for the actions of the employer and the
employer is liable for any violations. The exception is if the association was aware of the violations.
Associations acting as employers are liable for violations unless the violation was only known to certain
members and then the fine would only be assessed against the complicit ones.



The Department of Agriculture shall set special visa and wage rules for certain occupations:

    -   Sheepherding and goat herding

    -   Itinerant commercial beekeeping and pollination

    -   Open range production of livestock

    -   Itinerant animal sheering

    -   Custom combining industries; and

    -   Any other industry designated by DHS as a Special Procedures Industry

Classification applies if the worker works at least 75% of the time in a semiannual employment period.



W ag workers are not eligible for need-based public assistance.
DHS will develop a system to monitor the movement of W ag workers along the lines of the SEVIS
system for J and F visa holders within two years after effective date of this section.



Section 2233. Transition of H-2A Worker Program.

The H-2A program will sunset 1 year after the effective date of regs implementing the W ag worker
program except that the employer may employ an H-2A alien for the shorter of 10 months in the sime
specified in the petition. .



Section 2234. Reports to Congress on Nonimmigrant Agricultural Workers.

The Department of Agriculture has to submit an annual report that provides information on W ag
worker admissions. DHS must submit an annual report on W ag workers violating the program rules who
have not departed from the US.

Grassley 19

Creates a new Section 2244 entitle “Benefits Integrity Programs”

Requires creation of a benefit fraud assessment program to monitor fraud in the new RPI, blue card,
DREAM and U visa programs.
Section by Section Summary of the Border Security, Economic Opportunity and Immigration
Modernization Act – Title II – Immigrant Visas

By Greg Siskind – Siskind Susser, PC – Immigration Lawyers (gsiskind@visalaw.com)

TITLE II – IMMIGRANT VISAS

Subtitle C – Future Immigration

Sectoin 2301. Merit-Based Points Track One

The green card lottery provision setting the green card allocation for that eliminated category is
replaced with new language providing for a new points-based green card category.

The cap for Track One of the Merit-Based system is 120,000 per year. The number will rise if the number
available in a year is less than 75% of the number of people that apply. The increase would be a bump
up of 5% in the next fiscal year. If the demand is less than that, the number would stay the same and the
increase over the prior cap provided for that year based on the previous year’s demand would be
subtracted. The maximum cap is 250,000.

The elevator provision will not kick in if the annual average unemployment rate is more than 8.5%.

There is a recapture provision which says that if the available green cards aren’t issued, the numbers will
get added to the next year.

Section 203(c) of the INA which covers the green card lottery is replaced with a new section on Merit-
based immigrants. During the first four years after enactment, the merit system will not be used, but the
numbers allocated for the merit-based system will instead be added to the EB-3 category. Beginning in
year five, half of the merit-based numbers will go to applicants with the highest number of points in the
new Tier 1 and half will go to those with the highest number of points in Tier 2. Unused numbers in Tier
1 will be recaptured in the following year with 2/3 going to Tier 1 and 1/3 available to either Tier.
Unused numbers in Tier 2 will be recaptured in the following year with 2/3 going to Tier 2 and 1/3
available to either.

Establishes fee f $500 to cover costs of application.

Tier 1 point system

Education – 15 points for a doctorate degree (from an institution of higher education in the US or
foreign equivalent), 10 points for a master’s degree from institution of higher education in the US or
foreign equivalent), 5 points for a bachelors degree.

Employment – up to 20 points available; 3 points for each year working in a zone 5 occupation in the US;
2 points for each year working in a zone 4 job in the US. Zones are based on Department of Labor’s
Occupational Information Network (O*NET) classifications.
Employment tied to education – if the job is related to one’s education, zone 5 jobs will get an applicant
10 points and zone 4 jobs get an applicant 8 points.

Entrepreneurship – Business owners get 10 points for employing at least 2 employees in a zone 4 or 5
job.

High Demand Jobs – 10 points for working full time or having a full time offer in a high demand
occupation.

Civic Involvement – 2 points if an applicant has attested to working a significant amount of community
service

English – scoring 80+ on TOEFL or a similar test is worth 10 points

Siblings and married sons and daughters of US citizens – Siblings of US citizens or married kids over 31
get 10 points

Age – 8 points for being between 18 and 24; 6 points for being between 25 and 32; 4 points for being
between 33 and 37.

Country of Origin – People from countries with fewer than 50,000 people given green cards annually
over the last five years get 5 points.

Tier 2 point system

Employment experience – 2 points for each year the alien has been lawfully employed in the US (up to
20 points)

Full time employment or an offer of full time employment in a high demand tier 2 job is worth 10 points
and a job or job offer in a zone 1, zone 2 or zone 3 job is worth 10 points.

Caregiver – Working as a primary caregiver is worth 10 points.

Exceptional Employment Record – 10 points for having an “exceptional employment” record as
determined by USCIS. Factors include promotions, longevity, changes to higher skilled jobs, good safety
records and increases in pay.

Civic Involvement – 2 points for significant civic involvement

English – English proficiency and English knowledge, as determined by a standardized test administered
by DOEd.

Siblings and married sons and daughters of US citizens – Siblings of US citizens or married kids over 31
get 10 points

Age – 8 points for being between 18 and 24; 6 points for being between 25 and 32; 4 points for being
between 33 and 37.
Country of Origin – People from countries with fewer than 50,000 people given green cards annually
over the last five years get 5 points.

$500 fee for visas allocated under the merit-based points system.

Registered Provisional Immigrants legalized under that section of the bill can apply for merit-based
green cards in Track One ten years after enactment of the bill.

People with pending or approved applications in other green card categories are not eligible to apply in
the merit category.

Definitions –

“High Demand Tier 1 Occupation” – 1 of the 5 jobs with the highest number of H-1B applications filed by
employers in the previous fiscal year.

“High Demand Tier 2 Occupation” – 1 of the 5 jobs with the highest number of positions registered by
employers under the new W visa program in the prior fiscal year.

DHS may submit to Congress proposals to modify the points system described in this section.

This section takes effect on October 1st of the fiscal year beginning after the date of enactment. So, for
example, if the bill passed this summer, the start date would be October 1, 2013. If it passed in
November, the start date would be October 1, 2014.



Hirono 11

Modifies Section 2301. Mandates the Comptroller General of the US conduct a study of the new merit-
based immigration system during the first 7 years of the system.




Section 2302. Merit-Based Track Two.

Beginning October 1, 2014, the following people shall be eligible for merit-based green cards under this
section:

    1. Employment-based immigrants with cases pending more than 5 years. From fiscal years 2015 to
       2021, 1/7 of the merit-based green cards will be allocated to the employment-based cases.

    2. Family-based immigrants with cases pending more than five years for all those with cases
       pending before the bill passed or after the date of enactment for those in the 3rd and 4th
       preference categories (siblings and adult children – this should help significantly for those who
       otherwise would lose out with the elimination of many in these categories). From fiscal years
        2015 to 2021, 1/7 of the merit-based green cards will be allocated to the family-based cases
        (excluding spouses and children of permanent residents as noted below).

    3. Long-term workers and other merit-based immigrants – those admitted in categories other than
       the W visa who have been lawfully present and authorized to work in the US for at least ten
       years (the number rises to 20 years beginning in FY 2029).

Spouses and children of permanent residents are automatically converted to immediate relatives.

The allocation of visas to the family backlogs will be done in a manner consistent with the applicants
existing priority dates. Beginning in FY 2022, ½ of the available merit-based numbers in this category are
allocated to the 3rd and 4th preference family cases and in FY 2023, an allocation will be made that’s
enough to clear out that remaining backlog.

Registered Provisional Immigrants legalized under that section of the bill can apply for merit-based
green cards under Track Two ten years after enactment of the bill.

Amends Section 2302.Clarifies that the merit-based point system tracks will not be subject to per
country limits. [Schumer 1]




Section 2303. Repeal of the Diversity Visa Program.

The green card lottery program is eliminated. Anyone who is processing a lottery green card or has
received notification of winning for fiscal years 2013 and 2014 shall remain eligible under the rules in
effect until September 30, 2014. No more lottery green cards will be issued beginning with FY 2015.



Schumer 1

In section 2303, allows recapture of all unused green cards through date of enactment (prior version
said through 2013 fiscal year). [Schumer 1]




Section 2304. World-Wide Levels and Recapture of Unused Immigrant Visas.

In FY 2015, unused employment-based green cards from fiscal years 1992 to 2013 will be added to the
FY 2015 green card allocation. After FY 2015, unused employment-based green card numbers will roll
over to the following fiscal year.
 In FY 2015, the unused family-based green cards from fiscal years 1992 to 2013 will be added to the
2015 green card allocation. After FY 2015, unused family-based green card numbers will roll over to the
following fiscal year.

Section 2305. Reclassification of Spouses and Minor Children of Lawful Permanent Residents as
Immediate Relatives.

Adds spouses and children under 21 of permanent residents to the immediate relative category thus
enabling them to file without limit for green cards.

The allocation of 23,400 for Family 1st green cards for unmarried sons and daughters of citizens is
changed to 20% of the family quota.

The second family category is converted to one for “unmarried sons and unmarried daughters of
permanent resident aliens”. Currently, it is for spouses and unmarried children of green card holders,
but spouses and minor children are moved to immediate relatives. The allocation for the new second
preference family category is 20% of the family quota and whatever spill down there is from the 1st
preference category.

The Family 3rd category’s allocation of 23,400 now is 20% and only accepts a spill down from family
based 2nd preference (currently both 1st and 2nd).

The 4th family category is converted from 65,000 to 40% of worldwide family numbers and only taking a
spill down from the 3rd preference (currently all three).

There is a new section requiring the State Department to “broadly disseminate” information to the
public regarding the termination of green card petitions for people who don’t apply within a year
following notification. Currently, termination happens based on mere notification by DOS. Applicants
currently have a year to request reinstatement and that will change to two years if there was “good
cause.” Currently, applicants must show “circumstances beyond the alien’s control”.

For children who turn 21 in the course of a parent’s processing such that they are not eligible to adjust
as a minor child, the current procedure of automatically converting to an appropriate adult child family
category and retaining the priority date continues and the priority date for those whose parents had an
employment-based case will be the date of filing of the labor certification, not the I-140.

Allows certain green card applicants who are victims of abuse and criminal activity to file adjustments
even if green card numbers are not available.



Leahy 3

Intended to provide work authorization for aliens eligible for Violence Against Women Act self-
petitioning or for T or U visas while those applications are pending.
Amends Section 2305 which gives work authorization after approval. Amendment grants VAWA
applicants EADs if no decision on their case is made within 180 days (like asylees).

Inserts a new Section 3407 “Work Authorization While Applications For U and T Visas Are Pending”
which also grants U and T right to an EAD if no decision on their cases made within 180 days.




Section 2306. Numerical Limitations on Individual Foreign States.

Per country limits for employment-based cases are eliminated. Family limits rise from 7 to 15%.

This section takes effect one year after the bill is enacted.

Section 2307. Allocation of Immigrant Visas.

There will be a new family classification system going forward from the date of enactment of the bill.

Family 1A (currently Family 1st) will be for unmarried adult sons and daughters of US citizens shall get
35% of the worldwide numbers plus numbers not used in the Family 1B and Family 2nd category.

Family 1B (currently Family 3rd) is for married sons and daughters of citizens of the US under 31 years of
age at the time of filing an I-130. They are allocated up to 25% of the numbers plus any leftover from
Family 1A.

Family 2nd is for sons and daughters of green card holders (currently Family 2B) plus any numbers not
used in Family 1A.

Cases will automatically convert like the current system upon marriage, divorce and death.

This system will take effect on the first day of the fiscal year beginning at least 18 months following
enactment of the bill.

For employment cases, the following groups are no longer counted in the quotas:

    1. Spouses and children

    2. EB-1 extraordinary ability applicants

    3. EB-1 outstanding researchers and professors

    4. EB-1 multinational executives or managers

    5. Any aliens with doctorate degrees from US higher education institutions or the foreign
       equivalent from an institution of higher education in the US or the foreign equivalent for STEM
       fields.
    6. Doctors who have completed their J-1 two year home residence requirement or who have
       obtained a waiver based on the request of an interested state or federal agency under INA
       Section 214(l) including those who completed such service before the enactment of the bill.

EB-2 will now get 40% of the allocated visas plus leftovers from EB-5.

No green card cap on EB-2s who have earned master’s or higher in science, technology, engineering or
math fields from accredited US institutions of higher education, who have an offer of employment in
their field and who earned the degree during the five years immediately prior to the initial filing of their
petition.

The section defines institutions that are a “United States doctoral institution of higher education.”

Moves the National Interest Waiver to a new Section 203(b)(2)(C).

Physician national interest waiver changes. Clarifies that it is available to both primary care and
specialists. Allows FLEX applications if supported by either a local, county or state health department or
a federal agency. Non-FLEX applications can be filed without such a recommendation as the designation
as a shortage area are considered adequate. The five years of service shall include time worked in
shortage locations prior to the NIW application and a new five year contract is not required as long as
the submitted contract or affidavit covers the balance of the time required to meet the five year
obligation. New I-140 applications are not required each time a physician changes work sites (as is the
current rule).

Labor certifications. First, there appears to be a mistake in citation. Should be referring to the new
(2)(B)(ii) of section 203(b) which refers to those with doctoral degrees in STEM fields. Those holding
doctorates are exempt from the labor certification requirement under this section. The language refers
to (2)(A)(ii) which does not exist.

EB-3 will now get 40% of the allocated numbers plus any numbers leftover from EB-2.

Physicians are considered to qualify for an H-1B if they have a license in any state in the US as opposed
to just the state where the job is. This should facilitate physicians transferring between employers across
state lines.

The 10,000 limit for unskilled workers is eliminated and all EB-3 workers are treated the same.

EB-4 now gets 10% of the allocated employment green card numbers plus any leftovers from EB-3.

EB-5 now gets 10% of the allocated green card numbers plus any leftovers from EB-4. This raises the EB-
5 cap to 14,000 from 10,000.



Whitehouse 4
Modifies Section 2307. Expands EB-2 category to include “aliens who are members of professions
holding advanced degrees or prospective employees of national security facilities. Now includes
prospective employees, in a research capacity, of Federal national security, science, and technology
laboratories, centers and agencies if the immigrant has been lawfully present in the US for two years
before employment. This two year requirement can be waived if exceptional circumstances exist.

DHS may prescribe policy guidance and rules to carry out this new section including a definition of
“Federal national security, science, and technology laboratories, centers and agencies.”

After a year, these employees are eligible for naturalizing without regard to the residence requirements.

Creates a new un-numbered section entitled “Conditional Permanent Resident Status for Certain
Employment-Based Immigrants”.

Employees of federal labs who get a green card on that basis will get a conditional green card for two
years. The conditions can be removed if the employee documents that he or she met the requirements
noted in Section 2307. Applicants are to be interviewed.



Coons 3

Creates a new section 2320 entitled “Special Immigrant Status for Certain Surviving Spouses and
Children”

Adds a new special immigrant section for surviving spouses or children of an employee of the US
government killed abroad in the line of duty if the employee had performed faithful services for a total
of 15 years, or more, and the principal officer of the Foreign Service establishment in his or her
discretion recommends granting special immigrant status and the Secretary of State approves the
recommendation. This section takes effect beginning on 1/31/2013 and are retroactive.




Section 2308. V Nonimmigrant Visas

V non-immigrant visas are now available to the new Family-based 1A, 1B and 2 green card categories for
adult married and unmarried children of citizens and permanent residents with approved I-130s as well
as siblings and married children of US citizens over 21 (based on having cases filed before the new law is
enacted). Employment authorization is permitted for these new V non-immigrants if they are in the new
Family-based 1A, 1B and 2 categories but not if they are in the old sibling and 31 years of age or younger
married child categories and admission to the US for these individuals is limited to 60 days a year on the
V visa. The V visa status will terminate 30 days after the underlying green card or adjustment application
is denied. If siblings and married children over 31 years of age enter on the V visa, they may not
participate in the merit-based points green card system.

V visa holders are not eligible for any means-tested public benefits as well as access to certain sections
of Obamacare.

This section takes effect on the first day of the fiscal year beginning after the date of enactment.




Cornyn 8

Creates a new Section 2308 entitled “Inclusion of communities adversely affected by a recommendation
of the defense base closure and realignment commission as targeted employment areas.”

Adds base closing areas to the types of locations available for EB-5 Targeted Employment Areas.



Section 2309. Fiancée and Fiancé Child Status Protection.

Now adds green card holders in to the K-1 and K-3 categories. It also changes the rule on the admission
of minors to clarify that they lock in as under 21 based on the date the K non-immigrant petition is filed
and not just the day a green card application is filed.

Changes the rule that currently requires a departure from the US in the event the marriage doesn’t
happen within three months after admission. The new language says the visa shall automatically expire
and the alien will be placed in removal proceedings. But that if the marriage takes place within 90 days,
the K will automatically continue and expire after six months from the marriage. The applicant is
expected to file to adjust status during that six month period.

This section shall take effect on the first day of the first fiscal year beginning no earlier than one year
after the date of the enactment of the bill.

Section 2310. Equal Treatment for All Stepchildren

Current law considers stepchildren the same as biological children if the stepchild relationship is entered
in to before the age of 18. That age is raised to 21.

Section 2311. Modification of Adoption Age Requirements.

Allows children younger than 18 to be adopted if adopting parent or parents initiated the process before
the child reached 15.
Section 2312. Relief for Orphans, Widows and Widowers

Allows widows and orphans to file immediate relative petitions to file even if the death occurred before
enactment of the new law but there is a two year limit from the date of enactment to make such a filing.
People who were unable to file previously and who have left the US are eligible to be paroled to the US
in order to file to adjust status to permanent residency.

People unable to complete green card processing because the qualifying relative died before the
completion of immigrant visa processing may have an immigrant visa application adjudicated as if the
death had not occurred. Immigrant visas issued before the death remain valid after the death. This
section applies to immediate relatives, family-sponsored immigrants, derivatives of employment-based
immigrants and spouses and children of refugees and asylees. If an application was terminated because
of the death, the widow or orphan can seek to renew by filing a motion to reopen without paying a fee.

The three year naturalization residency requirement applicable to spouses of US citizens will now apply
to widows and widowers.

Waivers available to spouses and children of qualifying immigrants will now be available to surviving
widows and children as if the death had not occurred and the death of the qualifying relative shall be
the “functional equivalent” of hardship in cases requiring proof of hardship.

The current requirement of an immediate relative to file a petition within two years of the qualifying
relative’s death is eliminated.

Section 2313. Discretionary Authority With Respect to Removal, Deportation or Inadmissibility of Citizen
and Resident Immediate Family Members.

Gives judges the authority to halt a deportation if the judge decides that the removal would be against
the public interest or result in hardship to the alien’s US citizen or permanent resident parent of a child,
spouse, or child or the judge decides the alien is eligible to naturalize except that this won’t apply to
people excludable for criminal, security, and other similar grounds.

DHS has new authority to waive a ground of inadmissibility if the Secretary determines that the refusal
of admission is against the public interest or would result in hardship to a US citizen or permanent
resident spouse, parent or child except that this won’t apply to people excludable for criminal, security
and other similar grounds.

The current statute at 241(a)(5) is changed. Current law says that if an alien reenters illegally after
having been removed or voluntarily departed, the prior order of removal is reinstated and may not be
reopened or reviewed and no relief is available. That will change if the reentry occurred before attaining
the age of 18 or reinstatement of the prior order of removal would not be in the public interest or would
result in hardship to the alien’s US citizen or permanent resident spouse, parent or child.
Coons 9

Amends Section 2313. Eases the INA Section 240A cancellation of removal language by shortening the
number of years one must be a green card holder from 5 to 3. The total number of years of residence is
reduced from 7 to 3.

For non-permanent residents, the presence period is cut from 10 to 5 years.

Unrelated amendment to Section 3101 regarding E-Verify. Requires DHS notify an employer of a
nonconfirmation by electronic correspondence, mail, text message, telephone, or other direct
communication.




Section 2314. Waivers of Inadmissibility.

The 212(a)(9) three and ten year bars are altered. They will no longer apply to aliens who file for H
nonimmigrant petitions and who have earned a bachelors or higher degree from a US institution of
higher education and who entered the US initially before the age of 16.

The section also broadens waiver possibilities by considering hardships to those who are the parents of
US citizens or green card holders. Hardships no longer need to be “extreme.” And adds US citizen or LPR
child to the list of relatives who must suffer hardship for the noncitizens to be eligible for a waiver.

212(a)(C)(i) which imposes a ten year bar on readmission for someone who remains in the US for more
than a year unlawfully will now get the same exceptions as in 212(a)(9)(B).

212(a)(6)(C) now adds a new provision that bars admission if one has committed fraud or willfully
misrepresented a material fact when seeking to procure a visa or admission to the US. The current
permanent bar based on false claims to US citizenship is modified to exclude claims made before the age
of 18 or where the person lacked the mental competence to knowingly misrepresent a claim of US
citizenship. A new waiver is available if the inadmissibility would result in extreme hardship to the alien
of to the alien’s parent, spouse or child who is a US citizen or green card holder or in the case of a VAWA
self-petitioner, there would be a significant hardship. No judicial review is permitted for such waiver
applications.

Section 2315. Continuous Presence.

In cancellation of removal cases, the provision that stops the clock on counting continuous residence
when a person commits an offense under INA Section 212(a)(2) is removed.

Section 2316. Global Health Care Cooperation.

DHS will allow aliens and derivatives to reside in “candidate” countries and get credit toward
naturalization residency time if they are working as a physician or other health care worker. Candidate
countries are those determined by the State Department to meet various development criteria.
Applicants must have already received a green card. This section won’t take effect until regulations are
issued and these must occur within 180 days after enactment of the law.

Physicians and other health care workers are inadmissible unless they submit an attestation that they
are not seeking to enter the US during a period when they have an obligation to their home country.
Obligation is defined to mean receiving financial assistance to defray the costs of education or training
to qualify as a physician or other health care worker in exchange for agreeing work in the alien’s country
of origin or residence. Waivers are permitted if the applicant can show the obligation was incurred by
coercion, a settlement with the home country has been reached or there are extraordinary
circumstances including undue hardship.

This section takes effect after 180 days from the bill enactment.

Section 2317. Extension and Improvement of the Iraqi Special Immigrant Visa Program.

Calls on DOS and DOD to improve the efficiency of handling these applications and to adjudicate the
cases within nine months.

Limits the benefit to those employed on or after 20 March 2003 for a year or more. Extends the benefit
to those who worked for entities closely associated with the US mission in Iraq that received US
government funding.

An appeal process is created for denied applicants.

Section 2318. Extension and Improvement of the Afghan Special Immigrant Visa Program.

Now applicable to those present in Afghanistan on or after 7 October 2001 for at least a year or
employed by the US government or a media or nongovernmental organization headquartered in the US
or an organization closely linked to the US mission in Afghanistan. The benefit extends to family
members. Denied cases may be appealed. There is a limit of 5,000 per year for FY 2014 to 2018 plus
unused numbers from 2009 to 2013. Unused numbers will now be carried forward. Applications need to
be adjudicated within 9 months.

Hirono 1

Adds a new Section 2320 entitled “Reunification of Certain Families of Filipino Veterans of World War II”

Aliens who are the sons or daughters of a citizen of the US and have a parent (regardless of whether the
parent is living or dead) who was naturalized under Section 405 of the 1990 Immigration Act or title III of
the 1940 Immigration Act are exempt from green card caps.



Coons 3
Creates a new section 2320 entitled “Special Immigrant Status for Certain Surviving Spouses and
Children”

Adds a new special immigrant section for surviving spouses or children of an employee of the US
government killed abroad in the line of duty if the employee had performed faithful services for a total
of 15 years, or more, and the principal officer of the Foreign Service establishment in his or her
discretion recommends granting special immigrant status and the Secretary of State approves the
recommendation. This section takes effect beginning on 1/31/2013 and are retroactive.




SUBTITLE D – Conrad State 30 and Physician Access

Section 2401. Conrad State 30 Program.

Permanently reauthorizes the Conrad 30 J-1 waiver program for physicians. It was set to expire in 2015.

Section 2402. Retaining Physicians Who Have Practiced in Medically Underserved Communities.

Ends green card limits for physicians who do National Interest Waivers. Spouses and Children are
included.

Clarifies the NIW petitions may be filed before the date the physician completes the five year service
obligation.


Section 2403. Employment Protections for Physicians.

The 90 day clock for beginning work in the waiver job is set at the time of getting the waiver, finishing
training or getting the work authorization, whichever is latest.

Allows easier transfers to new employers within the three years. In addition to current provision on
extenuating circumstances, the original sponsoring agency can approve or the doctor can agree to work
one additional year in an underserved area.

New contract requirements calling for the specification of on-call time, specification on who pays for the
malpractice coverage, listing all work locations and attesting that new ones won’t be added without
government approval and barring non-compete provisions.

Provides a new 120 grace period for doctors to find new employment in the event of a termination
though time spent seeking new employment is not “credited” as satisfying the obligation to serve three
years in a healthcare shortage area.
Klobuchar 5

Allows physicians denied a Conrad 30 J-1 waiver because the program has filled up to get an extension
of J-1 status for up to six months to pursue another waiver. Work authorization is available once the
new J-1 waiver application is submitted.

The provision that provides dual intent for J-1 doctors that was inadvertently deleted in the Feinstein
amendment is restored in this amendment.




Section 2404. Allotment of Conrad 30 Waivers.

Allows for increase in J-1 waiver slots for each state if 90% of the waivers for the country are used
(states using less than 5 waivers are not factored in). Slots can be increased by 5 per year.

A new program permits academic medical centers to get three additional slots per state without regard
to whether the location is in a shortage area.

Section 2405. Amendments to the Procedures, Definitions, and Other Provisions Related to Physician
Immigration.

J-1 physicians are considered dual intent.

Doctors can satisfy the three year service requirement in any work status and not just H-1B.

H-1B cap gap relief for doctors who train on H-1Bs at a cap exempt location and find the H-1B cap
prevents them from starting work upon conclusion of their training. Their H-1B is automatically
extended until October 1 of the fiscal year and can be extended until a visa number becomes available.

Spouses and children on J-2s are not subject to INA Section 212(e)’s home residency requirement.

SUBTITLE E – Integration

Section 2501. Definitions.

CHAPTER 1 – Citizenship and New Americans

Subchapter A – Office of Citizenship and New Americans

Section 2511. Office of Citizenship and New Americans.

Renames the Office of Citizenship at USCIS to Office of Citizenship and New Americans.

The office shall promote institutions and training on citizenship responsibilities for people interested in
becoming US citizens, coordinate immigrant integration programs across the country, advise DHS on
integration challenges and opportunities, establish national goals for integration, establish metrics for
integration, identify integration implications of new or proposed immigration policies and serve as the
liaison to states and local governments on this subject. The section takes effect one year from
enactment.

Subtitle B – Task Force on New Americans

Section 2521. Establishment.

DHS shall establish a Task Force on New Americans within 18 months of enactment. It is intended to
establish a coordinated Federal response to integration issues and advise DHS in establishing related
policies.

The Task Force shall be comprised of the Secretaries of DHS, Treasury, Commerce, HHS, HUD,
Transportation, Education, Labor and the Attorney General as well as the heads of OMB, the SBA, the
Domestic Policy Council and the National Economic Council. Such heads can designate a delegate.

Chapter 2 – Public-Private Partnership

Section 2351. Establishment of United States Citizenship Foundation.

USCIS is authorized to establish a United States Citizenship Foundation.

Section 2352. Funding.

The Foundation may solicit gifts and engage in coordinated work with DHS. The Foundation’s purpose is
to expand citizenship preparation programs, provide direct assistance to those seeking RPI, green card,
or naturalization, and to coordinate immigrant integration with state and local entities.

Section 2534. Authorized Activities.

To make citizenship instruction services accessible to low-income and other underserved permanent
resident populations, develop best practices for citizenship preparation, support creative solutions to
barriers faced by those seeking to naturalize, increase the use of technology in naturalization
preparation, engaging receiving communities in integration and administering a New Citizens Award
Program to recognize 10 US naturalized citizens per year who have made outstanding contributions.

Section 2535. Council of Directors.

The Foundation’s structure is described.

Section 2536. Powers.

The job of the Executive Director is described.

Section 2537. Initial Entry, Adjustment and Citizenship Assistance Grant Program.
DHS, acting through USCIS may award Initial Entry, Adjustment and Citizenship Assistance Grants to
eligible public or private, non-profit organizations. The funds will be used to assist organizations helping
with RPI, green card and naturalization applications.

Section 2538. Pilot Program to Promote Immigrant Integration at State and Local Levels.

Provides for making grants to state and local governments and other entities to establish New
Immigrant Councils to help with integration.

Section 2539. Naturalization Ceremonies.

DHS will develop a strategy to enhance the public’s awareness of naturalization ceremonies and shall
seek out outstanding and historic venues.

Chapter 3 – Funding.

Section 2541. Authorization of Appropriations.

The Office of Citizenship and New Americans will receive $10,000,000 for the five years ending
September 30, 2018 and sums as necessary beyond that. Grants of $100,000,000 for the five years
ending in 2018 and sums as necessary beyond that.

Chapter 4 – Reduce Barriers to Naturalization.

Section 2551. Waiver of English Requirement for Senior New Americans.

The English test will no longer be required for people over 65 who have been living in the US for at least
five years since becoming a permanent resident. Also, it won’t apply to those over 60 residing in the US
for ten years. The civics exam may be waived for those over 60 present for at least ten years after
getting a green card.

Section 2552. Filing of Applications Not Requiring Regular Internet Access.

DHS may not mandate electronic filing of green card and citizenship applications. This section shall cease
to be effective on 1 October 2020. After that, DHS can only mandate electronic filing if they notify
Congress at least 30 days in advance.



Grassley 2

Bar on USCIS e-filing mandate is amended to say that DHS would need to notify the House and Senate
Judiciary Committees rather than Homeland Security Committees if they went ahead with a mandate.
[Grassley 2]
Section by Section Summary of the Border Security, Economic Opportunity and Immigration
Modernization Act – Title III – Interior Enforcement

By Greg Siskind – Siskind Susser, PC – Immigration Lawyers (gsiskind@visalaw.com)

Subtitle A – Employment Verification System

Section 3101. Unlawful Employment of Unauthorized Aliens.

Clarifies that the statute should not be construed to prohibit the employment of a person who is
authorized for employment in the US if the person was previously an unauthorized alien.

Clarifies that state certification of individual referred by the state employment agency can be used to
defend the employment of that worker if there is a question about the worker’s authorization.

Broadens good faith defense in I-9 investigations.. Note that employers not required to use E-Verify can
use that fact as the defense.

But defense is limited if the failure to comply is not insignificant, DHS has explained to the employer why
the failure to comply is not minor, the employer was given 30 days to correct the problem, and the
problem was still not corrected. Also, “pattern or practice” violators cannot invoke the good faith
defense.

After an employer is required to use E-Verify, hiring a person without running them through E-Verify will
be deemed to be knowledge that the person is unauthorized.

Employers cannot deny back pay or any other remedy under the law on account of the employee’s
status as an unauthorized alien. Reinstatement and “appropriate” relief shall be available to people
lawfully present in the US at the time relief is requested who lost employment authorized status due to
the unlawful acts of the employer and for whom reinstatement would restore such status.

Definition of “employer” modified to include government agencies, but exclude employment that is
“casual, sporadic, irregular, or intermittent”.

Documents. USCIS must publish a picture of each document valid for I-9/E-Verify purposes on its web
site.

List of acceptable documents evidencing employment authorization: US passports, green cards,
employment authorization documents, REAL ID compliant drivers licenses, foreign passport
accompanied by Form I-94, Micronesian or Marshall Islands passport with evidence of nonimmigrant
admission.

List of documents establishing identity: most state drivers licenses, a document issued under the
Intelligence Reform and Terrorism Prevention Act of 2004, or, if a person is under 18, a document DHS
prescribes (including an attestation by an adult).
List of documents establishing employment authorization: social security card or any other item DHS
determines to be secure.

DHS shall develop a photo tool that enables employers to match the photo on an identity document to
one maintained by USCIS in its databases.

DHS may bar documents that are not considered secure (such as certain state drivers licenses).

E-Verify

With the exception of federal contractors, all federal agencies must use E-Verify beginning within 90
days of the passage of the law if they’re not already required to do so. Federal contractors must
participate consistent with the DHS rule published in 2008.

One year after issuing rules, DHS may direct employers responsible for protecting, securing, operating,
etc. part of the “critical infrastructure” to use E-Verify.

Within two years after regulations are published, all employers with 5000+ workers (except agricultural
employers) must be signed up for E-Verify.

Within three years after regulations are published, all employers with more than 500 workers (except
agricultural employers) must be signed up for E-Verify.

Agricultural and all other employers have four years to sign up after regulations are issued. Indian tribes
have an extra year.

Immigration violators can be required by DHS to sign up earlier than required.

And, of course, employers can still voluntarily participate.

Failure to use E-Verify will be considered a civil infraction.

The statute codifies much of what already exists in the rules regarding the functioning of E-Verify.

The ten day limit on employers to employ workers after a non-confirmation is received can be extended
at the discretion of DHS. Workers have the right to remain employed during an appeal process. The
appeals process is laid out in this section. Employees may be entitled to lost wages, compensation and
attorney fees and either the employer of the federal government could be ordered to pay them
depending on who a judge deems responsible.

$40,000,000 per year are authorized to fund advertising campaigns to make employers aware of the
new requirements.

Employers insulated from liability for actions taken in reliance on E-Verify.

DHS is required to implement a number of measures to protect the privacy and security of records in E-
Verify.
A new identify theft protection measure is being required that would allow individuals to lock the use of
a social security number to one employer. Also, DHS will set up a system for handling cases when an SS#
has been used multiple times or is otherwise suspected to have been used in identity fraud.

DHS will have the authority to administer a $250,000,000 grants program to help states develop REAL ID
compliant drivers licenses.

DHS will be required to report to Congress after 18 months on the accuracy of E-Verify and other
aspects of the system.

DHS’ E-Verify enforcement system is described in this section including the investigatory authority, the
administrative process for prosecuting employers, and the penalties.

The penalties (effective one year from the date of enactment of the bill)

Hiring or continuing to employ unauthorized aliens - $3500 to $7500 per worker; $5000 to $15,000 per
worker for people with one previous violation; $10,000 to $25,000 per worker for 3+ violators.

Failing to use E-Verify if required – to be established later by DHS

Recordkeeping or verification practices - $500 to $2000 for each violation initially; $1000 to $4000 for
second violations; and $2000 to $8000 for 3+ violators.

Customized penalties involving cease and desist orders, compliance plans, suspended fines, etc. also
allowed. Fines can also be reduced based on a variety of factors.

Liens may be placed on an employer’s property if they fail to pay penalties.

Federal contractors with more than three violations can be debarred from receiving federal contracts.

After E-Verify is mandatory, DHS may require an employer certify compliance or institute a compliance
program.

New preemption provision that bars states and localities from lawmaking around employer compliance.
They can still limit business licenses, however.

New criminal penalties for pattern or practice violators. $10,000 fine and up to two years in jail (up from
$3000 and six months in jail).

Employers who knowingly employ ten or more workers without authorization in a one year period and
violate certain labor conditions can be subject to fines and imprisonment of up to ten years.

Franken 2

Deals with E-Verify accuracy issues in Section 3101. Once a year before November 30th, DHS’ Inspector
General shall prepare a report setting forth the error rate of E-Verify from the previous fiscal year and
describe the methods employed to prepare the report as well as recommendations to reduce the error
rates. Error rates refer to individuals who receive further action notices, contested such notices and
were found to be employment authorized divided by the number of total E-Verify inquiries.

If the error rate is higher than .3%, civil penalties will be a maximum of $1000. [Franken 2]

Grassley 31

Amends Section 3101. Requires USCIS Director to produce a weekly report with information about
nonconfirmations in E-Verify and to use such information for enforcement purposes.



Coons 1

Amends Section 3101.

Toughens provision which says DHS “may” notify people who are the subject of an E-Verify query to
“shall” notify.



Grassley 38

Amends Section 3101. DHS shall develop a reliable method for parents to suspend or limit the use of a
child’s social security number.



Grassley 36

Amends Section 3101. Requires that an attestation regarding a minor’s identity for purposes of work
authorization shall be made by a parent or guardian. Previous verison said anyone over 21 could do it.




Section 3102. Increasing Security and Integrity of Social Security Cards.

SSA shall develop fraud-resistant, tamper-resistant, wear-resistant and ID theft-resistant Social Security
Cards. Work on this will begin with 180 days of passage of the bill and will be completed in five years.
Appropriate funds from the CIR Trust Fund shall be made. .

Individuals can be issued no more than 3 cards per year and 10 over one’s lifetime. Reasonable
exceptions may be made.

New penalties for social security fraud tied.
Section 3103. Increasing Security and Integrity of Immigration Documents.

Within a year of enactment of the bill, DHS shall submit to Congress a report on adding new biometric
information on immigration employment documents.



Section 3104. Responsibilities of the Social Security Administration.

SSA shall establish a reliable method to compare its records to an inquiry in E-Verify. They will also be
barred from releasing information to employers through the confirmation system other than to confirm
or nonconfirm authorization for employment.



Section 3105. Improved Prohibition on Discrimination Based on National Origin or Citizenship Status

Amends the nationality discrimination provisions in IRCA to include abusive use of E-Verify.

Expands the exceptions to employers of five or fewer employees (currently set at three). The exception
doesn’t apply to employment agencies.

EEOC is given authority to refer all immigration-related unfair employment practices to the Office of
Special Counsel for Immigration-Related Unfair Employment Practices at DOJ.

Fines for national origin or citizenship status discrimation. $2k to $5k per worker for first violation; $4k
to $10k per worker for second; $8k to $25k per worker for subsequent violations.

Effective one year from passage.



Blumenthal 18

Modifies Section 3105. Makes it an unfair employment related practice for an employer that is required
under the law to maintain records documenting employment, including dates or hours of work and
wages received, to fail to provide such records to any employee upon request.




Section 3106. Rulemaking.

DHS must issue regs implementing Sections 3101, 3104 and 3105 above within a year. DOJ must issue
regs for 3102 within a year. Those regs will be effective immediately on an interim basis. Final regs must
be issued within a reasonable time.
Franken 4 and Franken Second Degree

Adds a new Section 3107 Office of the Small Business and Employee Advocate. DHS shall establish an
Office of the Small Business and Employee Advocate to assist small businesses comply with I-9 and E-
Verify requirements. The office will inform small businesses about the verification practices required by
INA Section 274A, assist in dealing with nonconfirmation notices, advise on penalties for violations and
propose changes to the administrative process. The OSBEA shall also make recommendations to
Congress.




SUBTITLE B – Protecting United States Workers.

Section 3201. Protections for Victims of Serious Violations of Labor and Employment Law or Crime.

Expands U visa category to cover serious labor violations. Adds child abuse when the child is a minor and
stalking to the U visa violations list.

Provides immigration protection to workers who are whistleblowers whose information results in a DHS
enforcement action. False claims can result in a fine of up to $1000.



Klobuchar 2

Amends Section 3201 to add elder abuse to the list of predicate crimes for U Visas.




Section 3202. Employment Verification System Education Funding.

Fines will be applied to funds for educating employers about E-Verify and employer compliance.



Section 3203. Directive to the United States Sentencing Commission.

The US Sentencing Commission shall promulgate sentencing guidelines for the new violations outlined in
this section.
Subtitle C – Other Provisions

Section 3301. Funding.

Sets up an Interior Enforcement Account with $1 billion to carry out the provisions of this subtitle.

5000 people will be employed to administer E-Verify.

Money will be used to implement technology to support the system.

The SSA will get funding to carry out its piece in E-Verify.

Establishes a reimbursable agreement between DHS and SSA to cover costs associated with this section.



Section 3302. Effective Date

This section will take effect upon enactment.



Section 3303. Mandatory Exit System.

By 12/31/2015, DHS will establish a mandatory exit data system that shall include a requirement for the
collection of data from machine readable visas, passports and other travel and entry documents for all
categories of aliens who are exiting from air and sea ports.



Grassley 2

Amends Section 3303 on the mandatory exit system. It requires DHS to report to other agencies any
alien lawfully admitted into the US and whose individual data in the integrated exit data system shows
that he or she has not departed the country when he or she was legally required to do so. DHS shall
ensure that the alien has departed as required and will update the data system to reflect the person’s
departure. If the person has not departed, DHS will ensure that all reasonable available enforcement
resources are employed to locate the person and commence removal proceeds against the person.



Hatch 6

Modifies Section 3303 regarding the mandatory exit system. Adds new requirements. Within two years
of the date of enactment, DHS shall establish a mandatory biometric exit data system at the 10 largest
international airports. Within 5 years of bill passage, the Comptroller General of the US shall conduct a
study of the effectiveness of biometric exit data collection at these ten airports. Within six years of
enactment, DHS shall establish the biometric exit data system at all the Core 30 international airports in
the US. Also within six years, DHS shall submit a plan for the expansion to major sea and land entry and
exit points within the US.



Section 3304. Identity-Theft Resistant Manifest Information For Passengers, Crew, and Non-Crew
Onboard Departing Aircraft and Vessels.

Air and sea lines officials are responsible for transmitting to CBP identity-theft resistant departure
manifest information covering passengers, crew and non-crew. The US-VISIT system will be used to
collect the information.

$500 million is allocated to reimburse carriers for their reasonable expenses in carrying out their duties
in this section.



Section 3305. Profiling.

Bars Federal law enforcement officers from using race or ethnicity to any degree unless a specific
suspect description exists. There are exceptions for preventing threats to national security or other
catastrophic events.



SUBTITLE D – Asylum and Refugee Provisions.

Section 3401. Time Limits and Efficient Adjudication of Genuine Asylum Claims.

Eliminates the requirement to apply for asylum within one year after a person enters the country (this is
actually what the law was before the 1996 Act).

Cases denied based on the one year requirement can be reopened for two years beginning on the date
of enactment if the person is still in the US and does not have a safe third country available.



Section 3402. Refugee Family Protections.

Broadens the ability to bring in spouses and children of refugees.



Section 3403. Clarification on Designation of Certain Refugees.
Allows the President and Secretary of State, in consultation with the DHS Secretary, to specifically
designate groups of aliens whose resettlement in the US is justified by humanitarian concerns or is
otherwise in the national interest. This essentially makes the Lautenberg Amendment permanent rather
than requiring Congress to regularly have to extend the provision.

Hatch 7

Ends processing of Amerasian refugee claims after passage of bill.




Section 3404. Asylum Determination Efficiency.

If a CBP officer determines that an alien has a credible fear of persecution, the case will go to an asylum
officer rather than go to a judge. This is designed to be a lot faster.



Section 3405. Stateless Persons in the United States.

Provides new relief for people designated as stateless by DHS. Criminal and security grounds of
inadmissibility still apply. Work/travel authorization may be granted. Stateless individuals may apply to
adjust to permanent residency after a year subject to the numerical limits of EB-4 (special immigrants).



Section 3406. U Visa Accessibility.

Raises cap for U visas from 10,000 to 18,000 of which up to 3,000 may be issued to aliens covered in the
new U visa section above.



Section 3407. Representation at Overseas Refugee Interviews.

Permits refugee applicants overseas be represented by attorneys or accredited representatives. Gives
additional rights to applicants to have case reviewed. Imposes additional requirements on reviewing
officers to document the basis for the decision.



Graham 1

Creates a new Section 3408 “Termination of Asylum or Refugee Status”.
Asylees/refugees who, without good cause, return to the country of the person’s nationality, or in the
case of an alien having no nationality, returns to any country in which such alien last habitually resided
and who applies for such status on the basis of persecution in one of the categories applicable to
asylum/refugee claims, shall have his or her status terminated. Cubans are exempted.




Feinstein 3

Adds a new Section 3408 entitled “Tibetan Refugee Assistance”. Grants 5000 immigrant visas per year
for three years beginning 10/1/2013 for natives of Tibet (including their kids and grandchildren) residing
in India or Nepal before bill passage. Preference given to those not resettled in India or Nepal who are
most likely to be resettled successfully in the US.



Feinstein 4

Adds a new Section 3408 “Law Enforcement and National Security Checks”.

Requires a mandatory background check, including biographic and biometric data, for those seeking
refugee or asylum status.



Coons 8

Adds a new Section 3408 (or whatever number is assigned) entitled “Asylum Clock”.

Ensures that applicants for asylum are granted employment authorization within 180 days of applying
regardless of the court or DHS pausing the application process.



Leahy 3

Intended to provide work authorization for aliens eligible for Violence Against Women Act self-
petitioning or for T or U visas while those applications are pending.

Amends Section 2305 which gives work authorization after approval. Amendment grants VAWA
applicants EADs if no decision on their case is made within 180 days (like asylees).

Inserts a new Section 3407 “Work Authorization While Applications For U and T Visas Are Pending”
which also grants U and T right to an EAD if no decision on their cases made within 180 days.
Subtitle E – Shortage of Immigration Court Resources for Removal Proceedings

Section 3501. Shortage of Immigration Court Personnel for Removal Proceedings.

Mandates increases in the number of immigration judges.

    1. 75 in FY 2014

    2. 75 in FY 2015

    3. 75 in FY 2016

Annual increases in Board of Immigration Appeals staff

    1. 30 in FY 2014

    2. 30 in FY 2015

    3. 30 in FY 2016



Section 3502. Improving Immigration Court Efficiency and Reducing Costs by Increasing Access to Legal
Information.

Gives DOJ discretion to appoint counsel at government expense to aliens in removal proceedings.

Counsel shall be appointed at government expense to represent unaccompanied alien children and
those unable to represent themselves due to a serious mental disability.



Section 3503. Office of Legal Access Programs.

Establishes an Office of Legal Access Programs at the Department of Justice’s Executive Office for
Immigration Review to develop and administer a system of legal orientation programs to make
immigration proceedings more efficient and cost effective. The programs will assist detained aliens to
make informed and timely decisions regarding their removal and eligibility for relief. Such programs
must be available to aliens within five days of being put in custody. The office may provide services to
certain individuals in proceedings and also shall identify children and persons with mental disabilities for
consideration for representation under Section 3502.



Section 3504. Codifying Board of Immigration Appeals.
Amazingly, the BIA is not actually provided for in the Immigration and Nationality Act. Now it will be.



Section 3505. Improved Training for Immigration Judges and Board Members.

EOIR shall review and modify, as appropriate, training programs for immigration judges and BIA
members.



Section 3506. Improved Resources and Technology for Immigration Courts and Board of Immigration
Appeals.

Provides that immigration judges have updated reference materials (the don’t already?) and standard
decision templates that conform to the law of the circuits where they sit. EOIR shall produce a practice
manual describing best practices for the immigration courts and make those manuals available
electronically to counsel and litigants practicing in immigration court.

Tape recording will be replaced with digital recording. This will happen within a year.

Within a year, EOIR shall report on the need to improve transcription and translation services.



Franken 8

Adds a new Section 3507 at the end of subtitle E of Title III.

Requires leftover funds from HHS/ORR William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008 to be transferred to DOJ to be used to carry out functions set forth in that
bill for the DOJ.




Subtitle F – Prevention of Trafficking in Persons and Abuses Involving Workers Recruited Abroad.

Section 3601. Definitions

Adds new definitions for “foreign labor contractor” and “foreign labor contracting activity”.



Section 3602. Disclosure.
Persons engaged in foreign labor contracting activities shall disclose in writing in English and in the
worker’s primary language information on the identity and address of the US employer, all terms of
employment, a signed copy of the contract with the employer, the type of visa under which the worker
will be employed as well as the terms of the visa, education to be provided, a list of any costs to be
charged to the worker, the existence of any labor issues at the place of employment (strike, union
organizing effort, etc.), information on benefits available to the worker, and a statement attesting that
there are no hidden fees or requirements not disclosed as well as information on victim trafficking
protections.



Blumenthal 5

Amends Section 3602. Regarding disclosure requirements for foreign laborers, requires labor
contractors and employers disclose the terms and conditions under which the visa may be renewed and
a clear statement of any expenses associated with securing or renewing the visa. Requires labor
contractor to explain to worker that no significant additional requirements or changes may be made to
the original contract signed by the worker without at least 24 hours to consider such changes and the
specific consent of the worker, obtained voluntarily and without threat of penalty and any significant
changes made to the original contract that do not comply with this section shall be a violation of the
law.




Section 3603. Prohibition on Discrimination.

It shall be unlawful for an employer or a foreign labor contractor to fail or refuse to hire, discharge,
intimidate, threaten, restrain, coerce, or blacklist any individual or otherwise discriminate against an
individual with respect to compensation, terms, conditions, or privileges of employment, because of
such individual’s race, color, creed, sex, national origin, religion, age or disability.



Section 3604. Recruitment Fees.

No employer, foreign labor contractor, or agent or employee of a foreign labor contractor shall assess
any fee (including visa fees, processing fees, transportation fees, legal expenses, placement fees and
other costs) to a worker for any foreign labor contracting activity.



Section 3605. Registration.
Foreign labor contractors must obtain a certificate of registration from the US Department of Labor.
Employers are required to notify DOL of the identity of foreign labor contractors used. Foreign labor
contractors must disclose to the government subcontractors used. Certificates will be valid for two
years.

DOL must issue regulations with 180 days of enactment and shall design an electronic process for
collecting information.

Violators can be barred for up to five years from registering.



Section 3606. Bonding Requirement.

DOL shall require a foreign labor contractor to post a bond in an amount sufficient to ensure it can meet
its responsibilities including wages.



Section 3607. Maintenance of Lists.

DOL shall maintain a list of all foreign labor contractors including the countries where they recruit, the
employers for whom they recruit, the visa categories and occupations of their workers and the states
where the workers are employed. The list must be updated every six months.



Section 3608. Amendment to the Immigration and Nationality Act.

A visa may not be issued in a variety of categories for workers unless the consular officer has provided
the applicant a copy of the information required in the William Wilberforce Trafficking Victims
Protection Reauthorization Act of 2008 and has made a part of the visa file the foreign labor recruiter
disclosures required in Section 3602 above.



Section 3609. Responsibilities of Secretary of State.

The State Department shall ensure that each consulate has an officer who is responsible for receiving
information from workers subject to violations under this section. That person is responsible for sharing
information with the DOL DOJ and other relevant Federal agencies.

Consulates must maintain information regarding the identities of labor contractors and their employer
clients and make the information publicly available in written form and online.



Section 3610. Enforcement Provisions.
DOL shall establish a process to handle complaints filed by any person regarding complaints against a
labor contractor’s compliance with the rules in this section. They are authorized to fine up to $10,000
per violation with that number increasing to up to $25,000 per violation at the point of a third violation.
Individuals may pursue civil actions and can be awarded up to $1000 per plaintiff per violation plus
attorney fees. Other relief is available as well. Employers have a safe harbor if they use a contractor
registered under this section and don’t act with reckless disregard of the contractor’s violations or fail to
report violations if it learns of them.

Whistleblowers are given protection. And parole may be granted to allow people to get to the US to
participate in legal proceedings.



Blumenthal 3

Amends Section 3610. Expands liability for abuses against foreign workers beyond foreign labor
contractors to their ultimate employers as well. Also provides workers with a right of action against an
employer. Complaints must be filed within three years after the date on which the violation occurred or
the employee became aware of the violation.




Section 3611. Rule of Construction.

Nothing in this section bars pursuing rights under other areas of the law.



Feinstein 5

Inserts a new Section 3611 entitled “Detecting and Preventing Child Trafficking”.

DHS shall mandate the live training of all CBP personnel who are likely to come in to contact with
unaccompanied alien children. Such training shall incorporate the services of independent child welfare
professionals with expertise in culturally competent, trauma-centered and developmentally appropriate
interviewing skills to assist CBP in screening children attempting to enter the US.




Hirono 22

Adds a new Section 3611 entitled “Protecting Child Trafficking Victims”
Adds to the bill the “Child Trafficking Victims Protection Act.” DHS, in consultation with HHS and
independent child welfare experts, shall mandate appropriate training of all personnel who come into
contact with unaccompanied alien children in the relevant legal authorities, policies, practices and
procedures for dealing with this population.

Requires all unaccompanied alien children in immigration proceedings to be transported and placed in
the physical custody of the Office of Refugee Resettlement within 72 hours after their apprehension
(absent exceptional circumstances). Female officers must be continuously present during the transfer of
female detainees.

DHS must hire child welfare professionals in at least 7 of the CBP stations with the largest number of
unaccompanied alien children. Those professionals shall develop guidelines for treatment of
unaccompanied alien children in DHS custody, conduct screenings of those children, notify DHS and ORR
of children meeting the notification and transfer requirements, interview adult relatives accompanying
unaccompanied alien children and provide an initial family relationship and trafficking assessment and
recommendations to ORR. They must also ensure each child receives emergency medical care when
necessary, is properly clothed, provided hygiene products, linens, nutrition, a safe and sanitary living
environment, access to recreational programs if held for longer than 24 hours, access to legal services
and access to phone calls to family members.

ORR shall submit final determinations on family relationships to DHS who shall consider such adult
relatives for community-based support alternatives to detention.

DHS must submit an annual report on unaccompanied minors beginning 18 months after bill enactment.

DHS must notify ORR of an unaccompanied child within 48 hours after encountering the child. DHS must
ensure all of these children are provided an interview with a child welfare professional, an oritentation
and notice of their rights under immigration law (including the right to relief from removal and the right
to counsel as well as relevant complaint mechanisms to report abuse). DHS shall ensure that the
orientation and notice be provided in the 5 most common languages spoken by unaccompanied
children.

The section provides privacy rights for the children.

The Administrator of the US Agency for International Development, in conjunction with DHS, HHS, DOJ,
international organizations and nongovernmental organizations in the US, shall develop a multi-year
program to develop and implement best practices and sustainable program in the US and within the
country of return to ensure the safe and sustainable repatriation and reintegration of unaccompanied
alien children. Annual reports on this process must be provided to the Judiciary Committees.
Appropriations as necessary will be made.



Creates a new Section 3612 entitled “Best Interests of the Child”.
In all decisions concerning unaccompanied immigrant children made by Federal agencies, contractors
working with those agencies, and the courts, the best interests of the child shall be a primary
consideration. Best interests determinations by juvenile courts shall be conclusive in assessing the best
interests of the child.

Factors to be considered are

    -   Views of the minor
    -   Safety and security considerations of the child
    -   Family unity
    -   Minor’s well-being and development (taking into consideration the minor’s ethnic, religious,
        cultural and linguistic background)
    -   Access to education.



Section 3612. Regulations.

Regulations may be issued to carry out this section.

Blumenthal 4

Amends Section 3612. Requires DHS to consult with the Department of Labor in issuing regulations on
protections against trafficking and abuse in the recruitment of workers abroad. Previously, DHS was
required to issue regulations on their own.




Subtitle G – Interior Enforcement

Section 3701. Criminal Street Gangs

Adds new language adding gang-related convictions to the criminal inadmissibility grounds and also
allows DHS to remove people over 18 it knows to have participated in street gangs engaged in illegal
activities. A waiver is available if the person has renounced all association with the gang, is otherwise
admissible and is not a security threat.

Aliens over 18 with convictions related to being in a gang or if DHS determines the person was in a gang
cannot participate in the RPI program. A waiver is available if the person has renounced all association
with the gang, is otherwise admissible and is not a security threat.



Section 3702. Banning Habitual Drunk Drivers From the United States.
Adds a new ground of inadmissibility and also for deportation for people with three or more convictions
on separate dates relating to driving while intoxicated.For deportation, at least one offense has to have
occurred after the date of enactment..



Grassley 44 (with Schumer secondary amendment).

Amends Section 3702.

Makes conviction for a third drunk driving conviction an aggravated felony. The provision takes effect on
the date of enactment of the bill. It applies only if one of the convictions takes place after enactment of
the bill.




Section 3703. Sexual Abuse of a Minor.

Broadens the definition of “sexual abuse of a minor” for purposes of determining if it is an aggravated
felony to include cases where the age of the victim is determined by evidence in the record of conviction
or by credible outside evidence even if the age of the victim is not stated in the conviction itself.



Section 3704. Illegal Entry.

Toughens the rules on illegal reentries. Higher penalties if the person reentering has multiple criminal
convictions. Increases the penalties – 12 months for first conviction (currently six months); 3 years for
the second (currently two years); up to ten years for 3+ (currently, the maximum is two years).

Illegal reentrants with a felony conviction for more than 30 months can be sentenced to up to 15 years.

Violators over 18 may also be subject to civil penalties.

Aliens deported who did not finish their jail sentence will have to complete the jail sentence after they
are convicted for illegally reentering.



Section 3706. Penalties Related to Removal.

Increases penalties for operators of vessels or aircraft who aid people illegally entering the country
unless the person can show they were uncompensated and offering assistance for humanitarian
reasons.
Section 3707. Reform of Passport, Visa, and Immigration Fraud Offenses.

Creates a new crime of trafficking in passports. Offense requires dealing in at least three or more
passports. Fines and up to 20 years in jail. If the crime is related to terrorism, the sentence can be up to
twenty five years plus a fine.

New crime for making false statements in an application for a passport. Up to 25 years imprisonment if
related to terrorism, 20 years if related to drug trafficking, or 15 years in other cases.

New crime for misuse of a passport. Using a passport in violation of the rules relating to its use or using
forged or fraudulent passports can result in a sentence of up to 20 years.

Dealing in immigration documents (whether real or counterfeit) can result in a sentence of up to 20
years.



Lee 16

Amends Section 3707 by adding back crime of knowingly use of a fraudulent immigration document.



Lee 17

Amends Section 3707 by adding attempts to misuse a passport to the list of criminal offenses in the bill.
The previous version required actual misuse.




Section 3708. Combating Schemes to Defraud Aliens.

This is a section that goes after notarios. People submitting applications will have to identify who
assisted them in preparing or translating the immigration submissions as well as anyone they paid in
connection with preparing the application. DOJ can commence a civil action to enjoin a provider from
further engaging in any fraudulent conduct that interferes with the proper administration of
immigration laws or who willfully misrepresents their authority to provide representation before the
DOJ or DHS.



Section 3709. Inadmissibility and Removal for Passport and Immigration Fraud Offenses.

Creates a new ground of inadmissibility and removability for violating Section 3707 and 3708.
Section 3710. Directives Related to Passport and Document Fraud.

The US Sentencing Commission shall establish guidelines for the new offenses.



Section 3711. Inadmissible Aliens.

Closes a loophole allowing certain aliens seeking admission “within” five years after removal and
changes it to “not later than” five years.

People who withhold biometrics are ineadmissible.

Adds domestic violence, stalking and child abuse to the inadmissibility grounds. It adds violators of
protection orders to the inadmissibility grounds.

This section covers acts occurring after the law takes effect.



Section 3712. Organized and Abusive Human Smuggling Activities.

Adds a new human smuggling offense which carries a sentence of up to 20 years plus fines (30 years if
serious bodily injury is involved). 30 years if more than ten people are involved. 30 years if bribery or
corruption of a US or foreign government official is involved. 30 years if the violation involves robbery or
extortion. 30 years if the violation involves an involuntary sexual act. Life imprisonment if a death
results.

Transmitting the location or activities of a law enforcement agency with the intent to further a crime
relating to US immigration, customs, controlled substances, agriculture, monetary instruments or other
border controls can be punished by up to 10 years in prison.

Up to 20 years in prison for destroying or damaging a border barrier, or seeking to thwart a barrier or
technology at the border shall be punishable by up to ten years in prison. 20 years if a firearm is
involved.



Section 3713. Preventing Criminals from Renouncing Citizenship During Wartime.

Eliminates the bar on renouncing citizenship during times of war.



Section 3714. Diplomatic Security Service.

Allows DOS’ Diplomatic Security Service to investigate illegal passport or visa issuance or use and
identity theft or document fraud affecting DOS operations.
Section 3715. Secure Alternatives Program.

DHS shall establish a secure alternatives program in each field office to provide alternatives to detention
of people in removal proceedings. DHS will contract with nongovernmental community organizations to
conduct screenings of detainees, provide appearance assistance services and operate community-based
supervision programs. DHS will make individualized determinations of eligibility for the secure
alternatives program.



Section 3716. Oversight of Detention Facilities.

DHS shall ensure that all persons in DHS detention are treated humanely and be protected.

All detention facilities will be inspected annually. Unannounced inspections will also take place.

DHS will consult with nongovernmental organizations regarding their independent opinions of particular
facilities.

Contracts with outside detention center operators will be modified within 180 days to incorporate new
terms required by this section. Contracts not modified with a year of enactment of the bill will be
cancelled unless a reasonable extension is warranted.



Section 3717. Procedures for Bond Hearings and Filing of Notices to Appear.

A Notice to Appear or other charging document shall be filed within 72 hours of a person being taken in
to custody. A decision on whether the person should remain in custody should happen within that
period as well. The AG shall ensure the person has the chance to appear before an immigration judge for
a custody determination promptly after DHS’ custody decision is made. The judge may postpone the
custody determination for no more than 72 hours after the DHS decision is made. The judge may detain
the alien only if DHS shows that no conditions, including the use of alternatives to detention that
maintain custody over the alien will reasonably assure the person’s appearance and the safety of the
community. The AG must review the custody determination every 90 days or sooner if there is a
showing of good cause.



Blumenthal 2

Makes further changes regarding solitary confinement. Solitary confinement is limited to situations to
control a threat to detainees, staff or the security of a facility, to discipline an alien for a serious
disciplinary infraction or for good order during the last 24 hours before an alien is released. Aliens
placed in solitary confinement may only be used for the least amount of time as is practicable. People in
solitary are to get three doctors visits or more per week. Those in for long periods shall have their cases
reviewed in a timely manner. Limits disciplinary segregation.




Section 3718. Sanctions for Countries that Delay or Prevent Repatriation of Their Nationals.

DOS will bar issuing G visas to nationals of countries that denies or unreasonably delays accepting aliens
who are its citizens, subjects, nationals or residents.



Section 3719. Gross Violations of Human Rights.

Anyone who participated in the commission of the following types of acts will be inadmissible:

    -   Torture

    -   Extrajudicial killings

    -   War crimes

    -   Widespread attacks against civilian populations

    -   Persecution on political, racial, national, ethnic, cultural, religious or gender grounds

    -   Enforced disappearance of persons

    -   Other inhumane acts of a similar character.

The President may ignore the confidentiality requirements to make public information on people barred
on one of these grounds.

There is a duress exception and in those cases, DHS may look at the age of the alien at the time such
actions were committed.



Coons 12

Amends Section 3719. Adds more explicit language denying admission in the US to individuals who have
committed a widespread or systematic attack on civilians or genocide.
Coons 6.

Adds a new Section 3720 entitled “Reporting and Recordkeeping Requirements Relating to the
Detention of Aliens”.

DHS shall maintain information on detention mandated by this section and shall submit reports to
Congress. DHS, EOIR, the Director if ICE and the Director of USCIS shall develop a shared database, or
other system that allows for the databases of ICE and EOIR and USCIS to develop a shared database
relating t detained aliens. Until the database is operational, DHS shall track the case outcomes of each
detainee.

The database shall maintain the basis in law for the alien’s detention, the place where the alien was
apprehended, the location where ICE detains the alien until the alien is removed from custody, the
gender and age of each detained alien in the custody of ICE, the number of days the alien is detained,
the immigration charges being pursued, the status of the alien’s removal proceedings and each date on
which the proceedings progress between stages and the events that have occurred after the alien
received a final administrative or order of removal. It shall also include internal custody determinations
of ICE showing how it went, the risk assessment results, the release for the alien’s release.

Detained individuals awaiting removal shall provide similar information DHS.

The bill further provides limits on solitary confinement. Children can never be put in solitary
confinement. Those with mental illness can only be put in solitary for maximum of 15 days. Aliens put in
solitary are entitled to be informed verbally and in writing of the reasons for such confinement and
given access to counsel. Requires DHS review cases where a person is in solitary for more than 14 days.



Blumenthal 8

Adds a new Section 3720 entitled “Powers of Immigration Officers and Employees at Sensitive
Locations”.

INA Section 287 gets a new section at the end. The section applies to enforcement actions by officers
and agents of ICE and CBP.

Enforcement actions may not take place at a “sensitive location” except under exigent circumstances
and if prior approval is obtained from a supervisor. Officers in such cases must act discretely and make
every effort to limit the time at the location. This doesn’t apply to apprehensions at or near a land or sea
border where an individual is being transferred to a hospital or healthcare provider.

ICE and CBP must make sure that employees receive annual training on compliance with this section.
Annual reports must be provided regarding enforcement actions at sensitive locations. Sensitive
locations include hospitals and clinics, schools, organizations assisting victims of crime or abuse,
organizations assisting children, pregnant women, victims of crime or abuse, or individuals with mental
or physical disabilities, houses of worship, or other places DHS specifies.




Coons 5

New section not yet numbered which would require all aliens in removal proceedings to be provided at
the beginning of the process or at a reasonable time thereafter. Adds new language to INA Section
240(b) which says that an alien shall at the beginning of the proceedings or at a reasonable time
thereafter, automatically receive a complete copy of all relevant documents in the possession of DHS
including all documents (other than those protected by privilege, including national security
information, law enforcement sensitive information and information prohibited from disclosure
pursuant to any other provision of law) contained in the file maintained by the government relating to
the alien’s immigration history. A removal proceeding may not proceed until the alien has received the
documents required by this provision.

Hatch 2

 Adds new section (not numbered yet) entitled “Enhanced Penalties for Certain Drug Offenses on
Federal Lands”.

Increases penalties for those growing or manufacturing marijuana on federal property. Increases
penalties for using a firearm while cultivating or manufacturing controlled substances on Federal lands.

Feinstein 7

Adds a new Subtitle H – Protection of Children Affected by Immigration Enforcement

Section 3801. Short Title.

The “Humane Enforcement and Legal Protections for Separated Children Act”

Section 3802. Definitions.

Apprehension – detention or arrest by officials of DHS

Child – Those under 18

Child Welfare Agency – State or local agency responsible for SSA child welfare services

Cooperating Entity – state or local agency acting under agreement with DHS

Detention facility – Federal, state or local facilities or privately owned facilities holding individuals under
the authority of ICE, including facilities that hold individuals under a contract with ICE.
Immigration Enforcement Action – apprehension of 1 or more individuals whom DHS has reason to
believe are removable from the US

Parent – Biological or adoptive parent whose rights have not been relinquished or terminated.



Section 3803. Apprehension Procedures for Immigration Enforcement-Related Activities

In any enforcement action, DHS shall as soon as possible, but generally not later than 2 hours after an
enforcement action, inquire whether an individual is a parent or primary caregiver of a child in the US
and provide such individuals with the opportunity to make a minimum of 2 phone calls to arrange for
the care of such child and contract information for child welfare agencies and family courts in the child’s
area and consulates, attorneys and legal service providers who can help. DHS shall notify child welfare
agencies if the caregiver is unable to make care arrangements or the child in in imminent risk of serious
harm. DHS shall ensure that personnel of DHS do not compel or request children to interpret or
translate for interviews of their parents as part of an immigration enforcement action. DHS shall ensure
that any parent of a child in the US is not transferred from his or her area of apprehension until the
person has made arrangements for the care of the child or, if such arrangements can’t be made, is
informed of the care arrangements for the child. The parent should be placed in a detention facility
either proximate to the location of apprehension or to the individual’s habitual place of residence.



Section 3804. Access to Children, State and Local Courts, Child Welfare Agencies and Consular Officials

At all detention facilities, DHS shall prominently post information on the protections of this subtitle and
information on potential eligibility for parole or release. DHS shall ensure that individuals who are
detained by DHS and are the parents of children in the US are permitted regular phone calls and contact
visits with their children, provided with contact information for child welfare agencies and family courts,
able to participate fully in all family court proceedings impacting their right to custody of their children,
granted free and confidential telephone calls to relevant child welfare agencies and family courts as
often as necessary to ensure the best interest of their children, including a preference for family unity
whenever appropriate, can be considered in child welfare agency or family court proceedings. DHS shall
ensure individuals are able to fully comply with all family court or child welfare agency orders impacting
custody of their children, provide access to US passport applications for the purpose of obtaining travel
documents for their children, afforded timely access to notary public services to help children apply for
passports or for executing guardianship or other agreements to ensure the safety of their children and
granted enough time before removal to obtain documents on behalf of their children if the children will
accompany them on their return to their country of origin. And where it wouldn’t impact public safety
or national security, DHS shall facilitate the ability of parents and caregivers to share information
regaridn travel arrangements with their consulate, children, welfare agencies or other caregivers prior
to the person’s departure from the US.
Section 3805. Mandatory Training.

DHS and other agencies shall develop training on the protections provided by the sections above to all
DHS personnel, cooperating entities, detenetion facilities and others who are likely to come in to
contact with individuals who are parents or primary caregivers of children in the US.



Section 3806. Rulemaking. DHS shall establish rules within 180 days.



Section 3807. Severability.
Section by Section Summary of the Border Security, Economic Opportunity and Immigration
Modernization Act – Title IV – Reforms to Non-Immigrant Visa Programs

By Greg Siskind – Siskind Susser, PC – Immigration Lawyers (gsiskind@visalaw.com)

Subtitle A – Employment-based Nonimmigrant Visas



Section 4101. Market-Based H-1B Visa Limits

Raises base level cap from 65,000 to 110,000 for the first fiscal year after the bill passes (which means
October 1, 2013 if the bill is signed by the summer).

The H-1B cap will float between a floor of 110,000 and a cap of 180,000 based on a formula calculating
market demand for H-1Bs and the unemployment rate. The number cannot go up or down more than
10,000 per year.

The bonus cap of 20,000 is increased to 25,000. However, it is now available only for those who earn a
masters degree or higher from a US institution in a STEM field. Current rules don’t restrict the master’s
cap applicants to STEM field. STEM occupations include computer and information sciences and support,
engineering, mathematics and statistics, biological and biomedical sciences and physical sciences.



Hatch-Schumer Deal

Section 4101 changes. The language creates a new concept of having a base H-1B allocation for each
fiscal year and then a possible addition to that base number depending on how strong demand is for H-
1Bs. The cap will float between 115,000 and 180,000 depending on market conditions. The base cap is
115,000. The cap can rise based on the following formula:

    -   If the cap is hit before day 45 then 20,000 more numbers will be made available beginning on
        day 46
    -   If the cap is hit between day 46 and 60, then 15,000 more numbers will be made available on
        day 61
    -   If the cap is hit between days 61 and day 90, then 10,000 more numbers will be made available
        on day 91
    -   If the cap is hit between day 91 and day 275, then 5,000 more numbers will be made available
        on day 276

The cap can also be lowered based on the following formula:

    -   If the number of approved petitions is at between 5,000 and 9,999 fewer than the base
        allocation for that fiscal year, then the base will decrease for the next year by 5,000
    -   If the number of approved petitions is at between 10,000 and 14,999 fewer than the base
        allocation for that fiscal year, then the base will decrease for the next year by 10,000
    -   If the number of approved petitions is at between 55,000 and 19,999 fewer than the base
        allocation for that fiscal year, then the base will decrease for the next year by 15,000
    -   If the number of approved petitions is more than 20,000 fewer than the base allocation for that
        fiscal year, then the base will decrease for the next year by 20,000



Section 4102. Employment Authorization For Dependents of Employment-Based Non-Immigrants

H-4 spouses will be permitted to apply for work authorization IF the spouse is a national of a foreign
country that permits reciprocal employment to spouses of those receiving work status similar to an H-1B
in the spouse’s country.



Hatch 10

Changes Section 4102 regarding work authorization for H-4s. Previous version only gave EADs to H-4s if
their countries reciprocated rights to US employees. New language gives DOS discretion on this issue.

The non-displacement language in Section 4211 is modified and no longer applies to all employers. “For
an H-1B skilled worker dependent employer” that is not an H-1B dependent employer, the employer
cannot have displaced and will not displace a US worker in the 90 days before and after the filing of the
H-1B. H-1B skilled worker dependent employers aren’t subject to the provision unless the employer is
filing the petition with the intent or purpose of displacing a US worker from the position to be occupied
by the beneficiary of the petition or workers are displaced who provide services at government work
sites or are public school teachers. In the case of applications filed by H-1B-dependent employers, the
employer did not displace and will not displace a US worker employer by the employer during the period
180 days before and after the filing of the H-1B.

“H-1B Skilled Worker Dependent” means an employer who employs H-1Bs in the US in a number greater
than 15% of its full-time equivalent workers in the US employed in jobs in O*NET Job Zone 4 and Job
Zone 5. H-1Bs who are intending immigrants don’t count in making this determination.

The Hatch amendment makes changes to S.744’s H-1B recruiting requirements. The amendment
increases recruiting requirements by adding a provision that says an employer must take “good faith
steps” to recruit US workers using procedures that meet industry-wide standards and offering
compensation at least as great as that required to be offered to H-1B non-immigrants. The DOL web site
recruiting is still required and an additional requirement has been added to require posting positions on
a State labor or workforce agency web site.

There is a significant change in the advertising rules. In the original S.744, the employer must have
offered the job to any US worker who applied and is “equally or better qualified” for the job for which
the non-immigrant is sought. Now, this requirement only applies to H-1B skilled worker dependent
employers.

Modifies the rules that exempt counting certain employees from the H-1B dependency count if an
employer has filed green card application. Previously, covered employers had to file I-140s for not less
than 90% of the people for whom an employer filed a labor certification during the 1-year period ending
on the date the employer filed an application for a labor certification for the worker. Labor certification
cases pending for longer than a year would be treated as if the employer filed an immigrant status
petition.

The language is modified and a “covered employer” is an employer that has filed I-140s for not less than
90% of current employees who were the beneficiaries of labor certifications that were approved during
the 1-year period ending 6 months before the filing of an application for which the number of intending
immigrants is relevant.




Section 4103. Eliminating Impediments to Worker Mobility

USCIS is to provide deference in extension cases for H-1Bs and L-1s unless there is a material error, a
substantial change in circumstances, new material information has been discovered or, in DHS’
discretion the extension should not be approved.

Laid off H-1Bs (or those terminated for any reason) get a 60 day grace period from the termination date.
Applicants who then file a new H-1B petition will be deemed to have maintained status while that
application is pending.

Visa revalidation marks its return after many years. Visas may be renewed within the US in the following
NIV categories: A, E, G, H, I, L, N, O, P, R or W.

NIV interviews may be waived at the discretion of DOS for “low risk” applicants deemed not to pose a
security threat, for whom no material benefit is seen in conducting the interview and for whom a
background check has been conducted.



Section 4104. STEM Education and Training.

Permits the charging of a $500 fee for labor certifications and the money is to be used to fund STEM
education and training. The various programs to be funded from the new tax are detailed. Only 3% of
the fee will actually go to immigration adjudications.

Replaces Section 4104 with new section STEM Education and Training.

Creates a $1000 fee labor certifications in permanent residency cases.
Creates a low income STEM scholarship program under the NSF with funds from the H-1B account. Also
to assist with loan forgiveness for low income students who go in to STEM fields. Will also support k-12
STEM education. which will go to a STEM Education and Training Account. The fund will be used for
federal STEM education programs. 70% of fund will go to states. [Hatch 9]




Section 4105. H-1B and L Visa fee

Increase in ACWIA fee from $750 to $1250 and from $1500 to $2500. Applies to H-1B and L-1 cases.
Nonprofit research institutions and nonprofit educational institutions are exempt.



Subtitle B – H-1B Visa Fraud and Abuse Protections

Chapter 1 – H-1B Employer Application Requirements

Section 4211. Modification of Application Requirements.

Mandates that H-1B dependent employers will pay wages that are not less than level 2 wages as set by
DOL.

DOL would have to establish a new 3-tier wage system based on experience, education and supervision.
Level 1 would be the mean of the lowest two-thirds of wages surveyed but no less than 80% of the
mean of the wages surveyed.

Level 2 is the mean of wages surveyed.

Level 3 is the mean of the highest two-thirds of wages surveyed.

A new section on wages for H-2B employees is included. The wage must be the higher of the actual
wage level paid by the employer or the prevailing wage based on the best available information. “Best
available” means a controlling collective bargaining agreement, the wage commensurate with the
experience, training and supervision needed based on BLS data or, if not available, a private, recent,
legitimate wage survey.

A four level wage system remains for universities and related nonprofits to use for teaching and
research positions.

Establishes a new advertising requirement for H-1Bs where employers must advertise on a DOL web site
for at least 30 days a detailed description of each position including a description of the wages offered,
the minimum education, training, experience and other requirements for the position and the process
of applying for the application.
The 90 day look back/look forward non-displacement provision for US workers is extended to all
employers and not just H-1B dependent employers, as is currently the case. The clause doesn’t apply if
an employer is not H-1B dependent and the number employed in the same O*NET job zone as an H-1B
nonimmigrant has not decreased in the 1-year period ending on the date the labor condition application
was filed.

The look back/forward provision expands to 180 days for dependent employers. Dependent employers
must also now use the DOL web site to advertise a job

H-1B dependent employers may not “place, outsource, lease, or otherwise contract” for the services or
placement of an H-1bB nonimmigrant employee. Non-H-1B dependent employers can do so if they pay a
$500 fee.

The definition of H-1B dependent employer is changed. It now excludes nonprofit institutions of higher
education, nonprofit research organizations, or an employer whose primary line of business is
healthcare and who is petitioning for a physician, a nurse, physical therapist or a substantially equivalent
healthcare occupation. Importantly, workers with pending green card applications don’t count in the H-
1B dependent calculation (the “Facebook” provision). The rules only apply if an I-140 has been filed or,
for labor certifications, if a labor certification has been pending or approved and the employer has filed
immigrant status petitions for 90% of the aliens for whom the employer filed an application for a labor
certification during the period. Labor certifications pending for one year or more are considered the
same as if an immigrant petition has been filed.
Grassley 58

Would add new information to list of information to include in advertising of jobs as required in section
4211. Employers would need to list the title and description of the position, including the location where
the work will be performed and the name, city and zip code of the employer. [Grassley 58]



Section 4212. Requirements for Admission of Non-Immigrant Nurses in Health Professional Shortage
Areas.

The H-1C returns but is now just 300 for the entire country. Portability is now available allowing H-1C
nurses to move more easily between H-1C employers. A 45 day lay off grace period is now provided.

Within 60 days, DHS must determine if regulations are necessary. If not, the commencement date shall
be the date of such determination.



Section 4213. New Application Requirements.
Bars employers from advertising that positions are available only to H-1Bs or F-1 OPTs or that such H-
1Bs or F-1s will get priority or preference. Employers are not permitted to solely recruit individuals who
are or will be H-1Bs or F-1 OPTs.

Non-educational/non-research employers employing more than 50 workers in the US, may not have
more than 75% of the total number of workers in non-immigrant status (H-1Bs and L-1s) in FY 2015; 65%
in FY 2016; 50% in any year thereafter. Intending immigrants (see section 4211) don’t count in the
calculation. Employers covered in the calculation above must provide DHS an annual report with W-2
data for each H-1B employee from the prior year.



Section 4214. Application Review Requirements.

The LCA will now be available to the public via the DOL’s web site and not just in a public access file.

LCAs will now be reviewed at the outset not just for completeness but also for signs of fraud or
misrepresentation.

The DOL will now get 14 days to review an application, up from the current 7. Between this requirement
and the new 30 day advertising requirement, employers should be prepared for much longer
turnaround times on H-1Bs.

H-1Bs may be submitted without an approved LCA, but may not be approved until the LCA is approved.



CHAPTER 2 – Investigation and Disposition of Complaints Against H-1B Employers

Section 4221. General Modification of Procedures for Investigation and Disposition.

Complaints regarding LCAs can now be filed within 24 months, up from the current 12 months.

DOL may now conduct voluntary surveys of employers to determine compliance. DOL shall also conduct
annual audits of employers with more than 100 employees who work in the US if more than 15% of such
employees are H-1B nonimmigrants and make available to the public an executive summary or report
describing the findings of such audits.



Whitehouse 6

Amends Section 4221. Adds dedicated toll free number [Whitehouse 6]



Section 4222. Investigation, Working Conditions and Penalties.
Adds new fines for violating some of the new H-1B provisions (advertising a preference for H-1Bs,
employing to high a percentage of H-1Bs, etc. Doubles the fine for smaller violations to $2000 per
violation and doubles the fine for more serious ones from $5000 to $10,000 per violation. Employers are
also liable to any employees harmed by such violations for lost wages and benefits.



Section 4223. Initiation of Investigations.

DOL no longer needs “reasonable cause” to launch an investigation. Anonymous complaints can now
serve as the basis of an investigation and DOL employees can be the source of a complaint.



Section 4224. Information Sharing.

USCIS and DOL shall share information on H-1B violations with the DOL and the DOL may launch an
investigation on information USCIS provides it.



Hatch 10

A new Section 4225 is added and is entitled “Transparency of High-Skilled Immigration Programs.”

The new Bureau of Immigration and Labor Market Research shall submit an annual report to Congress
providing data on H-1B beneficiaries and employers. A similar report on L-1s is to be prepared annually.
An additional annual report is to be prepared describing the methods employers are using to meet the
good faith recruiting requirements.



Chapter 3 – Other Protections

Section 4231. Posting Available Positions Through the Department of Labor.

The DOL has 90 days to set up a free searchable website for posting H-1B positions.




Section 4232. Requirements for Information for H-1B and L Nonimmigrants.

Consulates and DHS shall provide H-1B and L-1 employees a brochure outlining an employer’s
obligations and an employee’s rights under the law as well as the contact information for government
agencies that can assist in answering related questions. Employers must provide the beneficiary the LCA
within 30 days after filing the LCA and a copy of the original of all applications and petitions filed by the
employer with the DOL or DHS for that beneficiary. The employer can redact financial or proprietary
information.



Section 4233. Filing Fee for H-1B Dependent Employers

SIn 2015, $5000 for applicant that employs 50+ workers in the US if 30-50% are on an H-1B or L-1.

From FY 2015 to 2017, $10,000 for applicant that employs 50+ workers in the US if 50-75% of its workers
are on H-1B or L-1.

Universities and research organizations are exempt. Intending immigrants (see above) are not included
in the calculation.



Section 4234. Providing Premium Processing of Employment-Based Visa Petitions

DHS shall establish premium processing for employment-based immigrant petitions (it already does for
some; does this expand to all?) and for the first time requires the AAO set up premium processing.



Section 4235. Technical Correction.

Refers to amendment of Section 212 in regard to the “Irish Peace Process Cultural and Training Program
Act of 1998.”



Section 4236. Application.

Clarifies that this subtitle only applies to cases filed on or after the date of enactment of the bill.



Hatch 10

Section 4236 is modified to state that the non-displacement provisions do not apply to petitions filed on
behalf of existing employees.



Hatch 10

There is a new Section 4237 entitled “Portability for Beneficiaries of Immigrant Petitions.”
Changes the adjustment portability rules. Regardless of whether an employer withdraws an EB-1, EB-2
or EB-3 petition, the petition shall remain valid with respect to a new job if the beneficiary changes jobs
or employers after the petition is approved and the new job is in the same or a similar occupation for
which the petition was approved. Current law requires the petition to be pending 180 days before
portability kicks in. The employer’s legal obligation with respect to the petition shall terminate at the
time the beneficiary changes jobs or employers.

DOL shall develop a method for enabling workers to verify that a new job is in a same or similar
occupation.

In a very important change, concurrent adjustment applications are available even if a visa number is
not available. In such a case, a supplemental fee of $500 will be collected. Applicants filed under this
provision cannot be approved until a visa number becomes available.




Subtitle C – L Visa Fraud and Abuse Protections

Section 4301. Prohibition on Outplacement of L Nonimmigrants.

No placing, outsourcing, leasing, or otherwise contracting for the services or placement of L-1
employees. There is an exception as well if the L-1 won’t be supervised principally by the employer with
the L-1 is placed or the placement is not “essentially an arrangement to provide labor for hire for the
other employer.” Finally, the employer where the worker is placed must attest that the L-1 employer
attests that the other employer has not displaced a US worker in the period 90 days before and after
placement (note – the wording here appears to be incorrect and should be clarified).

L-1s coming to open new offices may be approved for up to 12 months but only if they have not been
the beneficiary of 2 or more petitions to open offices within the prior two years and the employer has
an adequate business plan, sufficient premises and adequate finances. New criteria is enumerated for
extensions of new office L-1s. Notwithstanding these criteria, USCIS can extend if the employer “has
been doing business at the new office through regular, systematic, and continuous” provision of goods
and services for six months preceding the extension petition and there are extraordinary circumstances
justifying not meeting the criteria.



Hatch 10

Section 4301 is modified and the anti-outplacement provisions applicable to L-1s are modified. L-1
employers that employ at least 15% of their employees in L-1 status shall not place, outsource, lease, or
otherwise contract for the services or placement of the worker with another employer. The previous
version of S.744 made this provision apply to all L-1 employers. However, employers that are not L-1
dependent will now not have to show that the third party employer has not engaged in displacements.
Instead, like the H-1B provisions, non-dependent employers will pay a $500 fee for outplacements.

Modifies Section 4703 regarding W-1 visas. Complaints regarding displacements of US workers must be
made by an aggrieved applicant, employee or nonimmigrant. Previous version allowed any person to file
a complaint.



Section 4303. Cooperation with Secretary of State.

USCIS and DOS are to work cooperatively to verify the existence of a company or office in the US or in a
foreign country.



Section 4304. Limitation of Employment of L Nonimmigrants.

Brings dependency concept from the H-1Bs to the L-1 category. For companies with 50+ workers in the
US, H-1B/L-1 totals may not exceed 75% in FY 2015; 65% in FY2016; and 50% from that year on.
Nonprofit and university exception. Intending immigrants (see above) excluded from the calculation.



Section 4305. Filing Fee for L Nonimmigrants

Beginning in FY 2014, $5000 for applicant that employs 50+ workers in the US if 30-50% are on an H-1B
or L-1.

From FY 2015 to 2017, $10,000 for applicant that employs 50+ workers in the US if 50-75% of its workers
are on H-1B or L-1.

Universities and research organizations are exempt. Intending immigrants (see above) are not included
in the calculation.



Section 4306. Investigation and Disposition of Complaints Against L Nonimmigrant Employers.

DHS can investigate an employer’s compliance with the new requirements and can set up a complaint
reporting system. No court review of a DHS investigation under this section. DHS has the power to fine
under this section, conduct voluntary surveys to determine compliance and conduct annual audits of
employers with 100+ employees in the US if more than 15% are on L-1s and such reports must be
available to the public.



Section 4307. Penalties.
Fines may be up to $2000 per violation and employers can be debarred from filing L-1s for a year. Willful
violators can face higher fines (up to $10,000 per violation) and a two year debarment as well as
payment to harmed employees of lost wages and benefits.



Section 4308. Prohibition on Retaliation Against L Non-Immigrants.

Bars retaliation against current or past employee or an applicant for employment because the employee
has disclosed information that the employee reasonably believes shows a violation of this section or
cooperates or seeks to cooperate with the requirements of this section.



Section 4309. Reports on L Nonimmigrants.

Adds L-1 to the list of non-immigrant categories about which DHS must annually report to Congress.



Section 4310. Application.

The changes in this section only apply to cases filed on or after enactment of the law.



Section 4311. Report on L Blanket Petition Process.

Within 6 months of the date of enactment, the Inspector General of DHS must submit to Congress a
report on the use of blanket petitions for L-1s including an assessment of the efficiency and reliability of
the process and the whether there are sufficient safeguards against fraud and abuse.



Grassley 2

Change Section 4311 to specifiy report on Blanket L visa process go to Judiciary Committees of Senate
and House. [Grassley 2]




Subtitle D – Other Nonimmigrant Visas

Section 4401. Nonimmigrant Visas for Students
F-1s coming for bachelor’s or graduate degrees will benefit from dual intent. Their spouses and children
will be treated the same. Commuting Mexican and Canadian students are also dual intent.

DHS may require accreditation for purposes of F-1 sponsorship (religious institutions excepted).

People with certain criminal and immigration violations are barred from being involved with an F-1
sponsoring institution.

This section takes effect 180 days after the date of enactment.



Grassley 77

Amends Section 4401 by adding a new section at the end. DHS shall implement real time transmission of
data from SEVIS to databases used by CBP. DHS will get 120 days after passage of the bill to get this
implemented. Otherwise, the issuance of F and M visas will be suspended until the requirement has
been met. [Grassley 77]




Section 4402. Classification for Specialty Occupation Workers from Free Trade Countries.

Creates a new E-4 category for people from countries other than Chile, Singapore or Australia with
which the US has entered in to a free trade agreement with respect to whom the DOL determines and
certifies to DHS and DOS that the intending employer has filed with the DOL an attestation under
Section 212(t). This is the LCA provision applicable to H-1B1s and E-3s. There is a cap of 5,000 per year
(not applicable to spouses and children).

A new E-5 is available to South Koreans with whom the DOL determines and certifies to DHS and DOS
that the intending employer has filed with the DOL an attestation under Section 212(t).



Schumer 3

Amends Section 4402

Creates a new E-6 non-immigrant visa for people coming from sub-Saharan African countries under
section 104 of the African Growth and Opportunity Act or countries designated under the Caribbean
Basic Economic Recovery Act. Individuals are eligible if they are coming to perform services as an
employee and have at least a high school education or its equivalent, or have, during the most recent 5-
year period, at least 2 years of work experience in an occupation which requires at least 2 years of
training or experience.

Annual cap of 10,500 for all nationalities covered under the E-6. [Schumer 3]




Section 4403. E Visa Reform.

For Irish nationals using an E-3, they must have at least a high school degree or, within 5 years, at least
two years of work experience in a job requiring at least 2 years of training or experience.

Creates a new waiver for E visa applicants who were immigration violators before the enactment of this
law.

Sets a cap of 10,500 for each of Ireland and Australia in the E-3 category.



Section 4404. Other Changes to Nonimmigrant Visas.

Adds portability to the O-1 visa category. Extends waiver of need for new consultation to those seeking
readmission within 3 years from the date of a consultation (currently two years). Consultations are
advisory and adverse opinions must be put in writing. Event exigencies and scheduling must be
considered. Copies of decisions must be given to the consulting organizations.



Section 4405. Treatment of Nonimmigrants During Adjudication of Application.

NIVs granted employment in these groupings (A, E, G, H, I, J, L, O, P, Q, R, TN) whose status has expired
but whose employer or agent has filed a timely extension is authorized to continue employment until
the petition is adjudicated. Currently limited to 240 days.



Section 4406. Nonimmigrant Elementary and Secondary School Students.

Ends 12 month limit on F-1 students attendance at elementary and secondary schools.



Section 4407. J-1 Visa Exchange Visitor Program Fee. A $500 fee must be paid by the employer to the
State Department for each non-immigrant admitted.
Section 4408. F-1 Visa Fee. A $100 fee is imposed on each F-1 student admitted.



Schumer 4

Section 4408 entitled “J Visa Eligibility for Speakers of Certain Foreign Languages

Creates a new J-1 category for persons coming to the US to perform work involving specialized
knowledge or skill, including teaching on a full-time or part-time basis, that requires proficiency of
languages in countries of which fewer than 5,000 nationals were lawfully admitted for permanent
residence in the US in the previous year. DOS must publish a list of the countries annually. [Schumer 4
(and Schumer amendment)]



Klobuchar 3

A new Section 4409 is added to Title IV, subtitle D. It requires the Department of State to establish a
pilot program for processing visitor visas using secure remote videoconferencing technology as a
method for conducing any required in person interview of applicants. Within 90 days after the
termination of the pilot program, the State Department shall submit a report to Congress that describes
the results of the program and recommendations for whether the program should be continued,
broadened, or modified. The State Department can scrap the program if they have security concerns.
[Klobuchar 3]



Sessions 13

Creates a new Section 4409 (will presumably be reconciled with the new 4409 created in Klobuchar 3
entitled “Providing Consular Officers With Access to All Terrorist Databases and Requiring Heightened
Scrutiny of Applications for Admission From Persons Listed on Terrorist Databases.”

Consular officers will have access to all terrorism records and databases maintained by any agency or
department to determine whether an applicant for admission poses a security threat to the US. The
head of such an agency may withhold such records if necessary to prevent the unauthorized disclosure
of information that clearly identifies or might permit the identification of intelligence or sensitive law
enforcement sources, methods or activities.

DOS shall require every alien applying for admission to submit to biographic and biometric screening to
determine whether the alien’s name or biometric information is listed in any terror watch list or
database maintained by any agency or department of the US.

No person shall be granted a visa if the alien’s name is listed in any watch list unless screening of the
application against screening systems reveals no potentially pertinent links to terrorism, the consular
officer submits the application for further review to the Secretary of State and the heads of other
relevant agencies (including DHS), and the Secretary of State in consultation with DHS certifies the alien
is admissible to the US.

If DOS or DHS revokes a visa, the fact of the revocation shall be immediately provided to relevant
consular officers, law enforcement and terrorist screening bases and a notice of the revocation shall be
posted to all DHS port inspectors and to all consular officers. [Sessions 13 (as amended by Schumer
Second Degree)]



Hirono 15

Creates a new section at the end of Subtitle D of Title IV. Because there are multiple amendments
inserting text at this point, the actual section number will have to be determined later.

The title of the section is “Treatment of Compact of Free Association Migrants.”

With respect to Medicaid benefits, applicants lawfully residing in the US in accordance with the
Compacts of Free Association between the governments of the US, Micronesia, the Marshall Islans and
Palau shall remain eligible for benefits. [Hirono 15]



Klobuchar 1

At the end of Subtitle D of title IV, add a new Section 4409 (again, the actual number will be sorted
later).

Creates a new INA Section 106 entitled “Relief for Abused Derivative Aliens”.

“Abused derivative alien” means a person who is the spouse or child admitted under a blue card status
in this bill who has been subjected to battery or extreme cruelty by such principal alien. DHS can grant
or extend status for an abused derivative alien for the period for which the principal alien was initially
admitted or a period of 3 years. DHS may also grant extensions, employment authorization and adjust to
permanent residency if DHS determines the alien’s continued presence in the US is justified on
humanitarian grounds, to ensure family unity or is otherwise in the public interest and the status under
which the principal alien was admitted would have potentially allowed for eventual adjustment of
status.

Termination of the relationship with the principal alien will not affect the status of an abused derivative
alien. [Klobuchar 1]
Feinstein 13

Amends Section 4401. A very unrelated amendment was added to this bill that extends the concept of
“dual intent”. Makes the following NIV categories dual intent: E, F-1, F-2, H-1B, H-1C, L, O, P, V, or W.
Deletes physician J-1 dual intent language (This was accidental and is fixed by Klobuchar in the final
amendment).



Franken 9

Creates a new as yet unnumbered section entitled “Permissible Use of Assisted Housing By Battered
Immigrants”. The measure allows battered immigrants to be eligible to receive certain public and
assisted housing.




Subtitle E – JOLT Act

Section 4501. Short Titles.

This section incorporates the Jobs Originated through Launching Travel Act of 2013” or the “JOLT Act”.



Section 4502. Premium Processing.

DOS shall establish a pilot program to charge a fee-based premium processing amount to expedite
interview appointments. DOS must report on the results within 18 months after the date of enactment.



Section 4503. Encouraging Canadian Tourism to the United States

DHS may admit Canadians in B-2 status for periods up to 240 days if the applicant is a Canadian citizen
over 55 with a residence in Canada and owning a residence in the US or having signed a rental
agreement for accommodations in the US for the duration of the intended stay. Applicants may not
engage in work or apply for public benefits. Spouses must meet the eligibility tests except for the
minimum age and home residency requirements. Maintaining a residence in the US shall not be
considered evidence of intent to abandon residence in Canada. Extensions are permitted. Departures
during the 240 day period will not toll the period.



Section 4504. Retiree Visa.
A new Y visa is created for aliens who use at least $500,000 in cash to buy one or more residences in the
US which each sold for more than 100% of the most recent appraised value as determined by the
property assessor in the city or country where it is located. The Y visa holder must own property worth
at least $500,000 during the entire period the person remains in the US and resides for more than 180
days per year in a residence in the US worth at least $250,000. Spouses and children may accompany
the applicant. Applicants must be 55 or over and have health insurance coverage. Work is not
authorized nor is access to any form of assistance or public benefit. The visa is valid in three year
increments.



Section 4505. Incentives for Foreign Visitors Visiting the United States During Low Peak Seasons.

DOS shall publish data on availability of visa appointments for each processing post to allow people to
better see periods of low demand and shorter wait times.



Section 4506. Visa Waiver Program Enhanced Security and Reform.

Gives more flexibility to DHS to designate Visa Waiver countries. If the percentage of overstays is less
than 3% and the country uses machine-readable visas. The 3% rate can be waived if a country meets all
the other requirements, there is a low security risk, there is a general downward trend in visa refusals
and the country has consistently cooperated with the US in counterterrorism initiatives and extraditions
and the overall visa denial rate is under 10%.

DHS can also now put a country in a probationary status.



Section 4507. Expediting Entry for Priority Visitors

Certain individuals employed by international organizations may be added to DHS registered traveler
programs.



Section 4508. Visa Processing.

DOS shall require consulates to conduct visa interviews in an “expeditious” manner and set a processing
goal of three weeks. For China and Brazil, the goal is 15 work days.

Section 4509. B Visa Fee. A $5 fee is imposed on each B-1 or B-2 admitted to the US.
Section by Section Summary of the Border Security, Economic Opportunity and Immigration
Modernization Act – Title IV, part 2 – H-2B visas, Guest Workers and Investor Visas

By Greg Siskind – Siskind Susser, PC – Immigration Lawyers (gsiskind@visalaw.com)




SUBTITLE F – Reforms to the H-2B Visa Program

Section 4601. Extension of Returning Working Exemption to H-2B Numerical Limitation.

From FY 2014 to FY 2018, H-2Bs counted toward the cap of 66,000 won’t be counted again against the
cap if they return in one of those years.

Certified ski and snowboard instructors are added to the list of P visa occupations, but they can still
qualify as H-2Bs. This provision shall take effect immediately upon passage of the bill.



Section 4602. Other Requirements for H-2B Employers. [ADDS BUSINESS VISITOR RULES AS WELL]

Adds a new non-displacement requirement to the H-2B program that is similar to the H-1B one.
Employers must attest that they did not and will not displace US workers within the same metropolitan
statistical area within the period beginning 90 days before the state date and ending on the end date for
which the employer is seeking H-2B workers.

Employers are responsible for paying transportation costs for H-2B workers from the place recruited to
the place of employment and from the place of employment home.

All fees must be paid by the employer and may not be deducted from the wages paid to an H-2B non-
immigrant.

DOL is authorized to charge a $500 fee for its part of the process.




Section 4603. Executives and Managers.

Executives and managers employed by a company who are principally stationed abroad for periods of 90
days or less to oversee and observe the US operations of their related companies and establish strategic
objectives when needed or employees of multinational companies who enter the US to observe the
operations of a related US company and participate in selecting leadership and development training
activities, for a period less than 180 days may be admitted as a non-immigrant to engage in these
activities as long as they do not receive a salary from a US source, except for incidental expenses for
meals, travel, lodging and other basic services.

Section 4604. Honoraria

B visa holders may accept honorarium payments and associated incidental expenses for usual academic
activities or for a performance, appearance and participation in US based programming, including
scripted or unscripted programming (with services not rendered for more than 60 days in a six month
period) if the alien has received a letter of invitation from the institution, organization, or media outlet,
such payment is offered by a qualified organization (see below) and is made for services conducted for
the benefit of that organization. The alien may not have accepted such payment or expenses from more
than five such organizations in the previous six month period.

Applicants qualifying under this provision may enter in B status or any other valid visa without
reentering the US and without a letter of invitation, if the person does not receive any pay, but may
receive prize money.

Qualified institutions, organizations, or media outlets include institutions of higher education, nonprofit
research organizations, governmental research organizations, and broadcast networks, cable entities,
production companies, new media, Internet and mobile based companies who distribute programming
content.



Section 4605. Nonimmigrants Participating in Relief Operations.

Individuals and groups coming to participate in critical infrastructure repairs or improvements in
response to a Federal or State declared emergency or disaster. Admissions may be up to 90 days if the
applicant has been employed in a foreign country by 1 employer for not less than 1 year prior to the
date the person is admitted. The person may not be paid from a US source except for incidental
expenses.



Section 4606. Nonimmigrants Performing Maintenance on Common Carriers.

A new Z visa is created for people with specialized knowledge coming individually or as part of a group
to perform maintenance for common carriers, including to airlines, cruise lines and railways if the
equipment was manufactured outside the US and are needed for purposes related to life, health and
safety , may be admitted for up to 90 days if the person has been employed in a foreign country by one
employer for not less than one year from the date the person is admitted. Pay must come from a source
outside the US except for incidental expenses. The visa will come with a $500 fee.



Subtitle G – W Nonimmigrant Visas
Section 4701. Bureau of Immigration and Labor Market Research

Definitions-

    -   Bureau – the Bureau of Immigration and Labor Market Research

    -   Commissioner – Commissioner of the Bureau

    -   Construction Occupation – defined by BLS within the construction industry

    -   Metropolitan Statistical Area – geographic area designated as a MSA by OMB

    -   Shortage Occupation – an occupation that the Commissioner determines is experiencing a
        shortage of labor throughout the US or in a specific MSA.

    -   W Visa Program – the program for the admission of guest workers

    -   Zone 1 Occupation – a job requiring little preparation and is classified as zone 1 by the DOL’s
        O*NET database

    -   Zone 2 Occupation - a job requiring some preparation and is classified as zone 2 by the DOL’s
        O*NET database

    -   Zone 3 Occupation - a job requiring medium preparation and is classified as zone 3 by the DOL’s
        O*NET database



The Bureau is to be created as an independent statistical agency within USCIS. The Commissioner of the
Bureau is to be appointed by the President with the consent of the Senate. The Commissioner is charged
with devising a methodology to determine the numerical limit for W-1 NIVS as well as the annual change
in numerical limits. The Commissioner may supplement the recruitment methods employers may use to
attract W nonimmigrants, to devise a methodology to designate shortage occupations, to conduct
surveys of the unemployment rate in Zone 1, 2 and 3 occupations that are construction occupations in
each MSA and to report to Congress on employment-based IV and NIV programs.

The Commission’s methodology for determining the W visa cap and for determining shortage
occupations will be published within 18 months of passage of the bill. Regarding shortage occupations,
the methodology will allow for an employer to petition for a determination that a particular occupation
in an MSA is a shortage occupation.

The employees of the Bureau shall have the expertise to identify labor shortages and make
recommendations. The Bureau will cooperate with the Census Bureau, the Dept. of Commerce, DOL,
and BLS.
Section 4702. Nonimmigrant Classification for W Nonimmigrants

Creates a new W visa for aliens having a foreign residence who come to the US to perform services or
labor for a registered nonagricultural employer in a registered position. The spouse or children of a W
nonimmigrant may be allowed to accompany or follow to join the W visa holder.



Section 4703. Admission of W Nonimmigrant Workers.

Defines various terms.

Ws are eligible to be admitted to the US if they are hired by a registered employer in a registered
position in a location that is not an excluded geographic location.

Spouses and minor children can come as derivatives and engage in employment while here.

Ws shall apply for a visa at a consulate. To be eligible, the applicant must not be inadmissible, pass a
criminal background check , agree to accept only registered positions in the US and meet other criteria
set by DHS.

The W worker must show up for work within 14 days of entering the US. The term of admission is three
years. Renewals within the US are permitted for up to three years at a time.

Ws can be unemployed for up to 60 days and then have to leave if they have not found a qualifying
position.

Ws are authorized to travel in and out of the US during their W visa term.

Employers seeking W workers must submit an application to register with DHS. Documentation included
must show the employer is a real employer, the FEIN and the number of W workers sought.

DHS may refer cases for fraud investigation. Employers may be barred from applying if they are engaged
in fraud or misrepresentations or committed various infractions. Ineligibility can continue for up to three
years.

A registered employer may submit a position as a registered position. It shall include an attestation
setting out the number of employees, offered wages, and whether the sought position is in a shortage
occupation. The employer has to engage in minimum recruiting.



Schumer 5

Amends Section 4703 dealing with W visas. Defines “initial W nonimmigrant” as one seeking initial
admission to the US to begin employment for a registered employer in a registered position.
DHS shall develop and maintain a registry of approved registered positions for W status and will make
the registry available on a web site maintained by DHS and linked by state workforce agencies. All
approved registered positions for which a permit has been issued will be included in the registry and will
indicate if the position is filled or unfilled. If a W visa holder’s employment ends, DHS shall ensure that
the registry indicates that the registered position is unfilled for a period of 10 calendar days unless the
position gets filled by a US worker.

W vacancies created by the termination of employment may be filled by hiring a US worker or, after ten
days of positing, by hiring a W nonimmigrant or a certified alien.

Allows for certain positions that are re-filled after a W nonimmigrant leaves and which are filled by
another W nonimmigrant not to count against the W cap. Allows use of safety valve only if employers
have tried to recruit available W nonimmigrants who are not initial W nonimmigrants. 3, rather than 7,
recruiting steps must be taken for these individuals. For W nonimmigrants who are not initial Ws, they
can be paid the regular prevailing wage for safety valve applications and these hires won’t reduce the
cap on Ws for the following year.

Adds to the electronic monitoring of W visa holders to require they update the system when W
nonimmigrants start and end employment in registered positions. The data will flow in to the new
registry. [Schumer 5 with additional Schumer change]



Schumer 1

Amends Section 4707 to only require $500 fee for J-1s in summer work travel programs (as opposed to
all J-1s). The fees must be paid by the program sponsor and cannot be passed on to the nonimmigrant.
[Schumer 1]



SUBTITLE H – Investing in New Venture, Entrepreneurial Startups and Technologies.

Section 4801. Nonimmigrant Invest Visas

Creates a new X visa for qualified entrepreneurs who have demonstrated during the 3 year period prior
to filing the application that

    -   A qualified venture capitalist, super angel investor, government entity, community development
        financial institution or other type of investors approved by USCIS has devoted at least $100,000
        to the applicant’s US business entity, or

    -   The US business entity has created no fewer than 3 qualified jobs and during the 2 year period
        prior to filing has generated not less than $250,000 in annual revenue arising from business
        conducted in the US.
Valid for initial 3 year period. May be renewed for additional 3 year periods if during the most recent 3
year period the applicant’s US business created no fewer than 3 qualified jobs and a venture capitalist,
super angel investor, government entity, community development financial institution or other type of
investors approved by USCIS has devoted at least $250,000 to the applicant’s US business entity or the
US business entity has created no fewer than 3 qualified jobs and during the 2 year period prior to filing
has generated not less than $200,000 in annual revenue.

USCIS can waive the above renewal requirement is USCIS finds the applicant has made substantial
progress in meeting the above criteria and the renewal is economically beneficial to the US.



Whitehouse 1

This section makes changes to the new INVEST visas. Amends Section 4801 to add “qualified startup
accelerators” to the types of entities that can make investments in immigrant ventures for purposes of
qualifying for INVEST visas.

Allows investments from multiple investors or entities to be combined to meet the investment
thresholds.

Defines ‘qualified startup accelerator’ as a company that in the ordinary course of business, provides a
program of training, mentorship, and logistical support to assist entrepreneurs in growing their
businesses and is managed by individuals, the majority of whom are US citizens or permanent residents
or entities organized in the US or is an entity that has received not less than $250,000 from a
government entity in the previous five years and regularly makes grants to companies that participates
in its programs. Such companies must regularly take equity stakes in the companies that participate in
their programs including acquiring in the last five years equity in no fewer than 10 US business entities
that have participated in its programs. Such businesses must have secured not less than $100,000 in
initial investments or during the two year period following such acquisition generated not less than
$500,000 in revenues. [Whitehouse 1]




Section 4802. INVEST Immigrant Visa.

Contains definitions of “Qualified Community Development Financial Institution”, “Qualified
Entrepreneur”, “Qualified Government Entity”, “Qualified Investment”, “Qualified Job”, “Qualified Super
Angel Investor”, “Qualified Venture Capitalist”, Senior Executive Position” and “United States Business
Entity”.

10,000 INVEST green cards available per year.

Eligibility –
    1. The applicant is a qualified entrepreneur

    2. The applicant maintained a valid nonimmigrant status in the US for at least 2 years

    3. During the 3 year period prior to filing,

          a) the applicant has a significant ownership in a US business that has created no fewer than 5
          qualified jobs and

          b) A qualified venture capitalist, super angel investor, government entity, community
          development financial institution or other type of investors approved by USCIS has devoted at
          least $500,000 to the applicant’s US business entity, or

          The US business entity has created no fewer than 5 qualified jobs and during the 2 year period
          prior to filing has generated not less than $750,000 in annual revenues within the US.

Limit of 2 immigrant investors per business entity.

Alternate basis of eligibility.

    1. The applicant is a qualified entrepreneur.

    2. The applicant maintained a valid nonimmigrant status in the US for at least 3 years

    3. The applicant has an advanced degree in a STEM field

    4. During the 3 year period prior to filing the green card application,

          a) the applicant has a significant ownership in a US business that has created no fewer than 4
          qualified jobs and

          b) A qualified venture capitalist, super angel investor, government entity, community
          development financial institution or other type of investors approved by USCIS has devoted at
          least $500,000 to the applicant’s US business entity, or

          The US business entity has created no fewer than 3 qualified jobs and during the 2 year period
          prior to filing has generated not less than $500,000 in annual revenue.

Limit of 3 immigrant investors per business entity.

Section 4803. Administration and Oversight.

Regulations must be issued not later than 16 months after enactment. Regulations can be issued from
time to time increasing each dollar amount above to account for inflation or deflation.

Leahy 2
This is a major EB-5 reform bill coming in at 31 pages. There’s a technical change first. The elimination of
the sunset of the EB-5 program in Section 2319 is deleted and moved to a new Section 4804 entitled
“Permanent Authorization of EB-5 Regional Center Program. At the end of the EB-5 language in INA
Section 203(b)(5), a major new section is added regarding EB-5 regional centers.

Regional Centers must promote economic grown including increased export sales, improved regional
productivity, job creation or increased domestic capital investment. Regional centers have jurisdiction
over a defined geographic area. Approval may be based on

    -   The kinds of commercial investments that will receive investments

    -   The jobs will be created directly or indirectly as a result of such investments

    -   Other positive effects such investments will have

Regarding job creation documentation for regional centers, DHS shall permit applicant immigrants to
establish reasonable methodologies to document job creation (including jobs created indirectly) through
revenues generated from increased exports, improved regional productivity, job creation; or increased
domestic capital investment resulting from the program, including jobs created outside the geographic
boundary of the regional center as a result of the immigrant’s investment in regional center-affiliated
commercial enterprises.

EB-5 immigrants would be able to satisfy 10 jobs created requirement through showing indirect job
creation. [The language is a little unclear here].

Allows enterprises affiliated with regional centers to pre-submit to USCIS business plans, investment
documents and credible economic analyses for specific projects. USCIS can pre-approve the projects and
charge a fee for this service. Pre-approval means petitions adjudicated for that project should be
approved unless there is evidence of fraud, misrepresentation, criminal misuse, a threat to national
security or other evidence affecting program eligibility that was not disclosed by the petitioner during
the preapproval process.

Premium processing will be available for people applying based on pre-approved projects.

Oversight of regional centers. RCs shall annually submit to DHS financial statements including an
accounting of all foreign investor money invested through the RC and for each project,

    -   an accounting of the aggregate capital invested through the RC or affiliated enterprises by EB-5
        investors,

    -   a description of how the funds are being used to execute the business plan

    -   evidence that 100% of investor funds have been dedicated to the project

    -   detailed evidence of the progress made toward completion of the project

    -   an accounting of the aggregate direct and indirect jobs created or preserved
    -   a certification by the RC that such statements are accurate

New sanctions are created for RCs providing insufficient financial statements. Graduated sanctions. First,
fines of up to 5% of the capital invested by immigrants. Then temporary suspension from participating in
the program. Then permanent bar for one or more individuals affiliated with the RC. Then termination
of the RC status.

No key individuals associated with RCs if DHS finds they have been found liable within the previous five
years of any criminal or civil violations relating to fraud or deceit or at any time with a criminal
conviction of at least one year or a criminal/civil violation of any law or regulation in connection with the
sale of a security. DHS also can bar individuals if they know have reasonable cause to believe they’re
engaged in illicit trafficking of controlled substances, activities relating to espionage or sabotage,
activities related to money laundering, terrorist activities, human trafficking or human rights offenses, or
violations of any laws on foreign financial transactions or foreign asset control. Background checks via
the submission of biometric information.

New section on RC termination. DHS has unreviewable discretion If they have bad actors working there
based on section above, if any persons involved with the RC have failed to provide an attestation or
information requested by DHS, or the RC or any persons associated with the RC is engaged in fraud,
criminal use or threats to national security.

RC Compliance with Securities laws. All RC designation applications and amendment applications must
have a certification of compliance with securities laws. Must also certify on an annual basis. DHS given
unreviewable discretion to suspend or revoke RC designation if there are security law violations or false
statements.

Provides a process for USCIS to revoke or deny an RC approval when rules are violated as well as to deny
I-829 petitions to remove conditions on permanent residency status.

USCIS should consult with the Department of Commerce in determining RC designations and on the
meeting of job creation requirements.

The provisions in this new section are effective upon enactment and will apply to pending RC
designation applications. Applies to any RCs pending on the date of enactment. For RCs approved
before the date of enactment the effective date will be on or after a delayed effective date that is 1 year
after such date of enactment with respect to any person involved in the RC after the delayed effective
date.

New Section 4805. Conditional Permanent Resident Status for Employment-Based Immigrants, Spouses
and Children.

Amends INA Section 216A on removal of conditions on green card. Spouses or kids shall not be required
to file separate I-829 petition if the principal applicant includes the family members in his or her I-829. If
the dependent obtains permanent residence after the date when the principal files an I-829, the
conditional basis of the dependent shall be removed upon approval of the principal’s I-829 and the
dependent’s permanent residency will be unconditional when it is approved. Provides child status
protection to I-526 and I-829 applicants. Will be considered under 21 if application pends past their 21st
birthdays.

Higher fees for I-829s if multiple family members included in same petition.

New exception in removal of condition cases. New special rule for alien investors in a regional center.
Exception to removal of condition requirements if the alien invested in a regional center and files
financial statements filed by the RC in which the person invested.

Gives authority to DHS to revoke conditional resident status if there is fraud, misrepresentation, criminal
misuse, threats to national security.

New Section 4806. EB-5 Visa Reforms.

Removes dependents from EB-5 cap.

Targeted Employment Areas. At least 5,000 EB-5s reserved for TEAs. TEA designations shall be valid for
five years and may be renewed for additional 5-year periods if the area continues to meet the definition
of a high unemployment or poverty area. People who invest in an area that has the status and then
loses the status won’t have to increase investment as a result.

Beginning 1/1/2016, the investment amounts required for EB-5 will adjust based on changes in the
Consumer Price Index. A new adjustment will happen every five years thereafter.

New definition of “full-time employment”. Includes intermittent or seasonal employment opportunities
and construction jobs using a “full-time equivalents” determination.

“Capital” defined to include all real, personal or mixed assets, whether tangible or intangible, owned or
controlled by the investor, or held in trust for the benefit of the investor, to which the investor has
unrestricted access, which shall be valued at the fair market value in US dollars at the time it is invested.

“full-time employment” requires at least 35 hours of service per week.

“high unemployment and poverty area” means an area consisting of a census tract or contiguous census
tracts that has an unemployment rate at least 150% of the national rate and includes at least one tract
with 20% of its residents living below the federal poverty level OR is in a federal enterprise zone.

“rural area” means any area outside a metropolitan statistical area or within the outer boundary of any
town with more than 20,000 people OR any town with fewer than 20,000 people in a state with fewer
than 1,500,000 people.

“targeted employment area” means a rural area or a high unemployment and poverty area.

This new definitions section applies to any applications filed on the date that is one year after the date
of enactment.
New INA section 203(h)(5) on determining the age of children of alien investors. Children admitted for
permanent residence on a conditional basis under EB-5 whose conditional status is terminated because
the conditional residency application was not approved, shall continue to be considered a child if the
alien remains unmarried and the principal alien files a new petition within a year of the termination of
conditional status. Can use this provision only one time.

DHS may delegate responsibility for determinations of I-526 and I-829 applications to the Department of
Commerce including the job creation parts. Application fees will be used to reimburse the Commerce
Department.

Permits concurrent filing of I-526 and adjustment of status petitions if a visa number is available. [Leahy
2]




Grassley 16

Carves out the dual intent and later sections of Section 4401 and moves them in to a new Subtitle I –
Student and Exchange Visitor Programs at the end of Title IV.

Section 4901. Short Title. May be cited as the “Student Visa Integrity Act.”



Section 4902. SEVIS and SEVP Defined.



Section 4903. Increased Criminal Penalties.

Increases penalty from 10 to 15 years for crimes associated with the SEVIS system.



Section 4904. Accreditation Requirement.

Defines “accredited” for F-1 sponsorship by colleges, universities, or language training programs as
being any program accredited by an accrediting agency recognized by the Secretary of Education.



Section 4905. Other Academic Institutions.

DHS shall require accreditation of academic institutions for F-1s if the institution is not already required
to be accredited under the F-1 rules and an appropriate accrediting agency recognized by the
Department of Education is able to provide such attestation. DHS will have the ability to waive the
requirement for institutions waiting more than a year for accreditation to be approved and it is making
continued progress toward accreditation.



Section 4906. Penalties for Failure to Comply with SEVIS Reporting Requirements.

The 1996 Immigration Act’s Section 641 is amended to allow institutions not complying with the SEVIS
requirements to be fined and barred from issuing I-20s.



Section 4907. Visa Fraud.

If DHS has “reasonable suspicion” that an owner of, or a designated school official at, an approved
institution of higher education, an approved educational institution or a designated exchange visitor
program has committed fraud or attempted to commit fraud relating to SEVIS or if such owner or
designated school official is indicted for such fraud, DHS may immediately suspend such certification
without prior notification and suspend such official’s or such school’s access to SEVIS.

A conviction of fraud shall lead to a permanent disqualification from filing future petitions and from
having an ownership interest or a management role in any US educational institution that enrolls F or M
students.



Section 4908. Background Checks.

Individuals cannot be designated school officers or granted access to SEVIS unless the individual is a
national of the US or a permanent resident and during the most recent 3-year period DHS has conducted
a background check on the individual and determined the person has not been convicted of an
immigration violations or is a national security risk and the individual has completed an online SEVIS
training course.

Individuals may serve as interim DSOs while the background check is going on. If the interim DSO
doesn’t successfully complete the background check, DHS shall review each Form I-20 issued by the
interim DSO.

DHS may collect a fee from an approved school for each background check conducted under this
section.

The section takes effect one year after enactment.



Section 4909. Revocation of Authority to Issue Form I-20 of Flight Schools Not Certified by the Federal
Aviation Administration.
Immediately after passage of the bill, DHS shall prohibit any flight school in the US from accessing SEVIS
or issuing a Form I-20 to an alien seeking a student visa under the F or M programs if the school has not
been certified by DHS and the FAA.



Section 4910. Revocation of Accreditation.

When an accrediting agency is required to notify the Secretary of Education and the state licensing
authority of the final denial, withdrawal, suspension or termination of accreditation of an institution
pursuant to section 496 of the Higher Education Act of 1965, the agency shall notify DHS and DHS shall
immediately withdraw the school from SEVP and prohibit the school from accessing SEVIS.



Section 4911. Report on Risk Assessment.

Within six months of enactment of the bill, DHS shall submit to the Judiciary Committees of both
chambers a report containing a risk assessment strategy to be employed by DHS to identify, investigate
and take appropriate action against schools and officials that are facilitating the issuance of Form I-20
and the maintenance of student visa status in violation of immigration law.



Section 4912. Implementation of GAO Recommendations.

Within six months of enactment of the bill, DHS shall submit to the Judiciary Committees of each House
a report describing the risks of SEVP, a process of allocate SEVP’s resources based on risk, quality control
procedures, and monitoring and other aspects of the student programs.



Section 4913. Implementation of SEVIS II.

Within two years after enactment, DHS shall complete the deployment of both phases of the 2nd
generation of the SEVIS system. [Grassley 16]



Hirono 2

Section amended is not yet stated. The provision would permit nonimmigrant alien crewman to land
temporarily in Hawaii.

The person must be coming to the US to perform work involving specialized knowledge or skill, including
teaching on a full-time or part-times, requiring the person work involving specialized knowledge and has
knowledge of a language that requires Spanish or French. [Hirono 2 (with Hirono Second Degree)]
Hirono 4

Adds new section to Title IV (number not determined yet). Visa Waiver Program modified. Section
217(c) to allow Hong Kong eligibility for participation. Hong Kong would still need to qualify for VWP
eligibility, but this allows the country to participate for the first time since it has previously not been
considered an eligible country. [Hirono 4]

				
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