H.R. 3534 (introduced by Rep. Tom Tancredo)

H. R. 3534 To enhance border enforcement, improve homeland security, remove incentives for illegal immigration, and establish a guest worker program.

November 19, 2003 Mr. TANCREDO (for himself, Mr. DEAL of Georgia, Mr. DUNCAN, Mr. HEFLEY, and Mr. HERGER) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committees on Ways and Means, Government Reform, Education and the Workforce, and International Relations, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

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A BILL To enhance border enforcement, improve homeland security, remove incentives for illegal immigration, and establish a guest worker program.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

This Act may be cited as the `Border Enforcement and Revolving Employment to Assist Laborers Act of 2003' or the `BE REAL Act of 2003'.

SEC. 101. SENSE OF CONGRESS REGARDING USE OF MILITARY TO GUARD LAND BORDERS OF THE UNITED STATES.

It is the sense of Congress that the President should deploy United States military troops to perform support functions along the southern and northern United States land borders until such time as additional Border Patrol agents authorized under this Act are hired and deployed.

Section 1385 of title 18, United States Code, is amended by inserting after `execute the laws' the following: `other than at or near a border of the United States in order to prevent aliens, terrorists, and drug smugglers from entering the United States'.

Subject to the availability of appropriations, the Secretary of Homeland Security shall increase the number of full-time Border Patrol agents to 20,000 by fiscal year 2008. There are authorized to be appropriated such sums as may be necessary for additional resources for support personnel and equipment for the activities of the new Border Patrol personnel.

Subject to the availability of appropriations, the Secretary of Homeland Security shall increase by 2,000 the number of full-time Bureau of Customs and Border Protection immigration inspectors by the end of fiscal year 2006. There are authorized to be appropriated such sums as may be necessary for such additional resources for support personnel and equipment for inspections as may be necessary to implement such increase in inspectors.

Subject to the availability of appropriations, the Secretary of Homeland Security shall increase the number of full-time 1811-series Bureau of Immigration and Customs Enforcement special agents devoted to the immigration function to 4,500 by the end of the fiscal year 2006. There are authorized to be appropriated such sums as may be necessary for such additional resources for support personnel, training, equipment, and case funds for investigations as may be necessary to implement such increase in the number of special agents.

Subject to the availability of appropriations, the Secretary of Homeland Security shall increase by 2,000 the number of full-time detention and removal officers by the end of the fiscal year 2006. There are authorized to be appropriated such sums as may be necessary for additional resources for support personnel and equipment for removals to implement such increase in personnel.

Notwithstanding any other provision of law, detention and removal officers of the Department of Homeland Security at the GS-9 and GS-11 levels are authorized to perform interior patrol functions, including locating, detaining, and transporting alien who have overstayed their visas, alien absconders, and aliens apprehended by state or local authorities.

Notwithstanding any other provision of law, the visa waiver program for certain visitors established under section 217 of the Immigration and Nationality Act shall be suspended until the Secretary of Homeland Security determines and certifies to the Congress that--

(1) the automated entry-exit system authorized under section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1221 note) is fully implemented and functional,

(3) all countries which participate in the visa waiver program under section 217 of the Immigration and Nationality Act issue to nationals of such countries machine-readable biometric passports.

(a) IN GENERAL- The Immigration and Nationality Act is amended by inserting after section 275 the following new section:

`SEC. 275A. Any alien who fails to depart the United States within 30 days after the expiration of a nonimmigrant visa and is not in other lawful status under this Act shall be fined under title 18, United States Code, imprisoned not more than one year, or both.'.

(b) CLERICAL AMENDMENT- The table of contents for the Immigration and Nationality Act is amended by inserting after the item relating to section 275 the following:

SEC. 110. CIVIL AND CRIMINAL PENALTIES FOR DOCUMENTS FRAUD AND FALSE CLAIMS OF CITIZENSHIP.

(a) PENALTIES FOR DOCUMENT FRAUD- Section 274C(d)(3) of the Immigration and Nationality Act (8 U.S.C. 1324c(d)(3)) is amended--

(1) in subparagraph (A), by striking `$250 and not more than $2,000' and inserting `$500 and not more than $4,000'; and

(2) in subparagraph (B), by striking `$2,000 and not more than $5,000' and inserting `$4,000 and not more than $10,000'.

(b) FRAUD AND FALSE STATEMENTS- Chapter 47 of title 18, United States Code, is amended--

Subject to the availability of appropriations, the Secretary of Homeland Security is authorized to double by the end of the fiscal year 2006 the capacity of facilities that were available at the end of the fiscal year 2001 for the detention of aliens under the immigration laws of the United States.

SEC. 112. SECURE AND VERIFIABLE IDENTIFICATION REQUIRED FOR FEDERAL PUBLIC BENEFITS.

In the provision in the United States of a Federal public benefit or service, including a law enforcement service, that requires the recipient to produce identification, no Federal agency, commission, or other entity within the executive, legislative, or judicial branch of the Federal Government may accept, recognize, or rely on (or authorize the acceptance or recognition of, or the reliance on) any identification document, unless the document was issued by a Federal or State authority and is subject to verification by a Federal law enforcement, intelligence, or homeland security agency.

SEC. 113. REQUIREMENT OF UNITED STATES CITIZENSHIP FOR CERTAIN FEDERAL EMPLOYEES AND THE PRACTICE OF IMMIGRATION LAW IN THE UNITED STATES.

(a) POSITIONS IN THE DEPARTMENT OF HOMELAND SECURITY- Notwithstanding any other provision of law, employees of the Department of Homeland Security in positions in the Bureau of Customs and Border Protection, the Bureau of Immigration and Customs Enforcement, and the Bureau of Citizenship and Immigration Services shall be citizens of the United States.

(b) POSITIONS IN THE DEPARTMENT OF STATE- Notwithstanding any other provision of law, employees of the Department of State in positions in consular affairs offices shall be citizens of the United States.

`(b) No new or replacement United States passport may be issued to any applicant on or after January 1, 2006 unless--

`(2) the applicant's fingerprints have been checked against the National Crime Information Center database of the Federal Bureau of Investigation.'.

(1) VISA TERM COMPLIANCE BOND- The term `visa term compliance bond' means a written suretyship undertaking entered into by an alien individual seeking admission to the United States of America on a nonimmigrant visa whose performance is guaranteed by a bail agent.

(2) SURETYSHIP UNDERTAKING- The term `suretyship undertaking' means a written agreement, executed by a bail agent, which binds all parties to its certain terms and conditions and which provides obligations for the visa applicant while under the bond and penalties for forfeiture to ensure the obligations of the principal under the agreement.

(3) BAIL AGENT- The term `bail agent' means any individual properly licensed, approved, and appointed by power of attorney to execute or countersign bail bonds in connection with judicial proceedings and who receives a premium.

(4) SURETY- The term `surety' means an entity, as defined by, and that is in compliance with, sections 9304 through 9308 of title 31, United States Code, that agrees--

(A) to guarantee the performance, where appropriate, of the principal under a visa term compliance bond;

(b) ISSUANCE OF BOND- A consular officer may require an applicant for a nonimmigrant visa, as a condition for granting such application, to obtain a visa term compliance bond.

(E) is filed with the Secretary of Homeland Security along with the original application for a visa; and

(2) EXPIRATION- A visa term compliance bond undertaking shall expire at the earliest of--

(A) annually with payment of proper premium at the option of the bail agent or surety; and

(B) provided there has been no breech of conditions, default, claim, or forfeiture of the bond.

(4) CANCELLATION- The bond shall be canceled and the surety and bail agent exonerated--

(B) if the surety or bail agent provides reasonable evidence that there was misrepresentation or fraud in the application for the bond;

(D) upon death, incarceration of the principal, or the inability of the surety to produce the principal for medical reasons;

(E) if the principal is detained in any city, State, country, or political subdivision thereof;

(F) if the principal departs from the United States of America for any reason without permission of the Secretary of Homeland Security and the surety or bail agent; or

(5) EFFECT OF EXPIRATION OR CANCELLATION- When a visa term compliance bond expires without being immediately renewed, or is canceled, the nonimmigrant status of the alien shall be revoked immediately.

(A) SURRENDER- At any time before a breach of any of the conditions of the bond, the surety or bail agent may surrender the principal, or the principal may surrender, to any Bureau of Immigration and Customs Enforcement or Bureau of Customs and Border Protection office or facility.

(B) FORFEITURE OF BOND PREMIUM- A principal may be surrendered without the return of any bond premium if the visa holder--

(i) changes address without notifying the surety or bail agent and the Secretary of Homeland Security in writing at least 60 days prior to such change;

(ii) changes schools, jobs, or occupations without written permission of the surety, bail agent, and such Secretary;

(v) violates the contract with the bail agent or surety, commits any act that may lead to a breech of the bond, or otherwise violates any other obligation or condition of the visa established by such Secretary.

(i) shall have the right to petition any Federal court for an arrest warrant for the arrest of the visa holder;

(ii) shall forthwith be provided a certified copy of the arrest warrant and the undertaking; and

(iii) shall have the right to pursue, apprehend, detain, and deliver the visa holder, together with the certified copy of the arrest warrant and the undertaking, to any official or facility of the Bureau of Immigration and Customs Enforcement or Bureau of Customs and Border Protection or any detention facility authorized to hold Federal detainees.

(B) EFFECTS OF DELIVERY- Upon delivery of a person under subparagraph (A)(iii)--

(i) the official to whom the delivery is made shall detain the visa holder in custody and issue a written certificate of surrender; and

(ii) the court issuing the warrant described in subparagraph (A)(i) and the Secretary of Homeland Security shall immediately exonerate the surety and bail agent from any further liability on the bond.

(8) FORM OF BOND- A visa term compliance bond shall in all cases state the following and be secured by a surety:

`(i) If a visa holder violates any conditions of the visa or the visa bond the Secretary of Homeland Security shall--

`(III) order the bail agent and surety to take the visa holder into custody and surrender the visa holder to such Secretary; and

`(IV) mail notice to the bail agent and surety via certified mail return receipt at each of the addresses in the bond.

`(ii) A bail agent or surety shall have full and complete access to any and all information, electronic or otherwise, in the care, custody, and control of the United States Government or any State or local government or any subsidiary or police agency thereof regarding the visa holder needed to comply with section 116 of the Border Enforcement and Revolving Employment to Assist Laborers Act of 2003 that the court issuing the warrant believes is crucial in locating the visa holder.

`(iii) If the visa holder is later arrested, detained, or otherwise located outside the United States and the outlying possessions of the United States (as defined in section 101(a) of the Immigration and Nationality Act), such Secretary shall--

`(I) order that the bail agent and surety are completely exonerated, and the bond canceled and terminated; and

`(II) if such Secretary has issued an order under clause (i), the surety may request, by written, properly filed motion, reinstatement of the bond. This subclause may not be construed to prevent such Secretary from revoking or resetting a higher bond.

`(II)(aa) prove within 180 days that producing the bond holder was prevented-- `(aaa) by the bond holder's illness or death;

`(bbb) because the bond holder is detained in custody in any city, State, country, or political subdivision thereof;

`(ccc) because the bond holder has left the United States or its outlying possessions (as defined in section 101(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)); or

`(bb) prove within 180 days that the inability to produce the bond holder was not with the consent or connivance of the bail agent or sureties.

`(v) If the bail agent or surety does not comply with the terms of this bond within 60 days after the mailing of the notice required under subparagraph (A)(i)(IV), a portion of the face value of the bond shall be assessed as a penalty against the surety.

`(vi) If compliance occurs more than 60 days but no more than 90 days after the mailing of the notice, the amount assessed shall be one-third of the face value of the bond.

`(vii) If compliance occurs more than 90 days, but no more than 180 days, after the mailing of the notice, the amount assessed shall be two-thirds of the face value of the bond.

`(viii) If compliance does not occur within 180 days after the mailing of the notice, the amount assessed shall be 100 percent of the face value of the bond.

`(ix) All penalty fees shall be paid by the surety within 45 days after the end of such 180-day period.

`(B) Such Secretary may waive the penalty fees or extend the period for payment or both, if--

`(ii) the bail agent or surety provides evidence satisfactory to the Secretary that diligent efforts were made to effect compliance of the visa holder.

`(i) COMPLIANCE- The bail agent or surety shall have the absolute right to locate, apprehend, arrest, detain, and surrender any visa holder, wherever he or she may be found, who violates any of the terms and conditions of the visa or bond.

`(ii) EXONERATION- Upon satisfying any of the requirements of the bond, the surety shall be completely exonerated.

`(iii) LIMITATION OF LIABILITY- The total liability on any undertaking shall not exceed the face amount of the bond.'.

Section 236(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1226(a)(2)) is amended to read as follows:

`(2) subject to section 241(a)(8), may release the alien on bond of at least $10,000, with security approved by, and containing conditions prescribed by, the Secretary of Homeland Security, but the Secretary shall not release the alien on or to his own recognizance unless an order of an immigration judge expressly finds that the alien is not a flight risk and is not a threat to the United States; and'.

(a) IN GENERAL- Section 241(a) of the Immigration and Nationality Act (8 U.S.C. 1231(a)) is amended by adding at the end the following:

`(8) EFFECT OF PRODUCTION OF ALIEN BY BONDSMAN- Notwithstanding any other provision of law, the Secretary of Homeland Security shall take into custody any alien subject to a final order of removal, and cancel any bond previously posted for the alien, if the alien is produced within the prescribed time limit by the obligor on the bond. The obligor on the bond shall be deemed to have substantially performed all conditions imposed by the terms of the bond, and shall be released from liability on the bond, if the alien is produced within such time limit.'.

(b) EFFECTIVE DATE- The amendment made by subsection (a) shall take effect on the date of the enactment of this act and shall apply to all immigration bonds posted before, on, or after the date of the enactment of this Act.

(1) IN GENERAL- For purposes of carrying out section 274A of the Immigration and Nationality Act, the Commissioner of Social Security (in this section referred to as the `Commissioner') shall make such improvements to the physical design, technical specifications, and materials of the social security account number card as are necessary to ensure that it is a genuine official document and that it offers the best possible security against counterfeiting, forgery, alteration, and misuse.

(2) PERFORMANCE STANDARDS- In making the improvements required in paragraph (1), the Commissioner shall--

(A) make the card as secure against counterfeiting as the 100 dollar Federal Reserve note, with a rate of counterfeit detection comparable to the 100 dollar Federal Reserve note; and

(3) DEFINITION- In this section, the term `secured social security account number card' means a social security account number card issued in accordance with the requirements of this paragraph.

(4) EFFECTIVE DATE- All social security account number cards issued after January 1, 2005, whether new or replacement, shall be secured social security account number cards.

Subsection (a) of section 656 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (5 U.S.C. 301 note) is amended to read as follows:

`(1) LIMITATION ON ACCEPTANCE- (A) No Federal agency, including but not limited to the Social Security Administration and the Department of State, and no State agency that issues driver's licenses or identification documents, may accept for any official purpose a copy of a birth certificate, as defined in paragraph (5), unless it is issued by a State or local authorized custodian of record and it conforms to standards described in subparagraph (B).

`(B) The standards described in this subparagraph are those set forth in regulations promulgated by the Federal agency designated by the President, after consultation with such other Federal agencies as the President shall designate and with State vital statistics offices, and shall--

`(II) use of safety paper, the seal of the issuing agency, and other features designed to limit tampering, counterfeiting, and photocopying, or otherwise duplicating, for fraudulent purposes;

`(ii) not require a single design to which the official birth certificate copies issued by each State must conform; and

`(iii) accommodate the differences between the States in the manner and form in which birth records are stored and in how birth certificate copies are produced from such records.

`(2) LIMITATION ON ISSUANCE- (A) If one or more of the conditions described in subparagraph (B) is present, no State or local government agency may issue an official copy of a birth certificate pertaining to an individual unless the copy prominently notes that such individual is deceased.

`(i) the presence on the original birth certificate of a notation that the individual is deceased, or

`(ii) actual knowledge by the issuing agency that the individual is deceased obtained through information provided by the Social Security Administration, by an interstate system of birth-death matching, or otherwise.

`(3) GRANTS TO STATES- (A)(i) The Secretary of Health and Human Services, in consultation with other agencies designated by the President, shall establish a fund, administered through the National Center for Health Statistics, to provide grants to the States to encourage them to develop the capability to match birth and death records, within each State and among the States, and to note the fact of death on the birth certificates of deceased persons. In developing the capability described in the preceding sentence, States shall focus first on persons who were born after 1950.

`(ii) Such grants shall be provided in proportion to population and in an amount needed to provide a substantial incentive for the States to develop such capability.

`(B) The Secretary of Health and Human Services shall establish a fund, administered through the National Center for Health Statistics, to provide grants to the States for a project in each of 5 States to demonstrate the feasibility of a system by which each such State's office of vital statistics would be provided, within 24 hours, sufficient information to establish the fact of death of every individual dying in such State.

`(C) There are authorized to be appropriated to the Department of Health and Human Services such amounts as may be necessary to provide the grants described in subparagraphs (A) and (B).

`(4) REPORT- (A) Not later than one year after the date of the enactment of this Act, the Secretary of Health and Human Services shall submit a report to the Congress on ways to reduce the fraudulent obtaining and the fraudulent use of birth certificates, including any such use to obtain a social security account number or a State or Federal document related to identification or immigration.

`(B) Not later than one year after the date of enactment of this Act, the agency designated by the President in paragraph (1)(B) shall submit a report setting forth, and explaining, the regulations described in such paragraph.

`(C) There are authorized to be appropriated to the Department of Health and Human Services such amounts as may be necessary for the preparation of the report described in subparagraph (A).

`(5) CERTIFICATE OF BIRTH- As used in this section, the term `birth certificate' means a certificate of birth of--

`(B) a person born abroad who is a citizen or national of the United States at birth, whose birth is registered in the United States.

`(A) Except as otherwise provided in subparagraph (B) and in paragraph (4), this subsection shall take effect two years after the enactment of the Border Enforcement and Revolving Employment to Assist Laborers Act of 2003.

`(B) Paragraph (1)(A) shall take effect two years after the submission of the report described in paragraph (4)(B).'.

SEC. 141. EMPLOYMENT ELIGIBILITY VERIFICATION PROCESS AND ELIMINATION OF EXAMINATION OF DOCUMENTATION REQUIREMENT.

`(B) FAILURE TO SEEK AND OBTAIN VERIFICATION- In the case of a hiring of an individual for employment in the United States by a person or entity, the following requirements apply:

`(I) IN GENERAL- If the person or entity has not made an inquiry, under the mechanism established under subsection (b)(4), seeking verification of the identity, social security number, and work eligibility of the individual, by not later than the end of 3 working days (as specified by the Secretary of Homeland Security) after the date of the hiring, the defense under subparagraph (A) shall not be considered to apply with respect to any employment after such 3 working days, except as provided in subclause (II).

`(II) SPECIAL RULE FOR FAILURE OF VERIFICATION MECHANISM- If such a person or entity in good faith attempts to make an inquiry during such 3 working days in order to qualify for the defense under subparagraph (A) and the verification mechanism has registered that not all inquiries were responded to during such time, the person or entity can make an inquiry until the end of the first subsequent working day in which the verification mechanism registers no nonresponses and qualify for such defense.

`(ii) FAILURE TO OBTAIN VERIFICATION- If the person or entity has made the inquiry described in clause (i)(I) but has not received an appropriate verification of such identity, number, and work eligibility under such mechanism within the time period specified under subsection (b)(4)(B) after the time the verification inquiry was received, the defense under subparagraph (A) shall not be considered to apply with respect to any employment after the end of such time period.';

`(A) IN GENERAL- The person or entity must attest, under penalty of perjury and on a form designated or established by the Secretary of Homeland Security by regulation, that it has verified that the individual is not an unauthorized alien by obtaining from the individual the individual's social security account number and recording the number on the form (if the individual claims to have been issued such a number), and, if the individual does not attest to United States citizenship under paragraph (2), obtaining such identification or authorization number established by the Department of Homeland Security for the alien as the Secretary may specify, and recording such number on the form.';

(4) in subsection (b)(2), by adding at the end the following: `The individual must also provide that individual's social security account number (if the individual claims to have been issued such a number), and, if the individual does not attest to United States citizenship under this paragraph, such identification or authorization number established by the Department of Homeland Security for the alien as the Secretary of Homeland Security may specify.'; and

`(A) IN GENERAL- After completion of such form in accordance with paragraphs (1) and (2), the person or entity must--

`(i) retain the form and make it available for inspection by officers of the Department of Homeland Security, the Special Counsel for Immigration-Related Unfair Employment Practices, or the Department of Labor during a period beginning on the date of the hiring, recruiting, or referral of the individual and ending--

`(I) in the case of the recruiting or referral for a fee (without hiring) of an individual, three years after the date of the recruiting or referral; and

`(II) in the case of the hiring of an individual, the later of-- `(aa) three years after the date of such hiring; or

`(ii) make an inquiry, as provided in paragraph (4), using the verification system to seek verification of the identity and employment eligibility of an individual, by not later than the end of 3 working days (as specified by the Secretary of Homeland Security) after the date of the hiring (or recruitment or referral, as the case may be).

`(i) VERIFICATION RECEIVED- If the person or other entity receives an appropriate verification of an individual's identity and work eligibility under the verification system within the time period specified, the person or entity shall record on the form an appropriate code that is provided under the system and that indicates a final verification of such identity and work eligibility of the individual.

`(ii) TENTATIVE NONVERIFICATION RECEIVED- If the person or other entity receives a tentative nonverification of an individual's identity or work eligibility under the verification system within the time period specified, the person or entity shall so inform the individual for whom the verification is sought. If the individual does not contest the nonverification within the time period specified, the nonverification shall be considered final. The person or entity shall then record on the form an appropriate code which has been provided under the system to indicate a tentative nonverification. If the individual does contest the nonverification, the individual shall utilize the process for secondary verification provided under paragraph (4). The nonverification will remain tentative until a final verification or nonverification is provided by the verification system within the time period specified. In no case shall an employer terminate employment of an individual because of a failure of the individual to have identity and work eligibility confirmed under this section until a nonverification becomes final. Nothing in this clause shall apply to a termination of employment for any reason other than because of such a failure.

`(iii) FINAL VERIFICATION OR NONVERIFICATION RECEIVED- If a final verification or nonverification is provided by the verification system regarding an individual, the person or entity shall record on the form an appropriate code that is provided under the system and that indicates a verification or nonverification of identity and work eligibility of the individual.

`(iv) EXTENSION OF TIME- If the person or other entity in good faith attempts to make an inquiry during such 3 working days and the verification system has registered that not all inquiries were received during such time, the person or entity may make an inquiry in the first subsequent working day in which the verification system registers that it has received all inquiries. If the verification system cannot receive inquiries at all times during a day, the person or entity merely has to assert that the entity attempted to make the inquiry on that day for the previous sentence to apply to such an inquiry, and does not have to provide any additional proof concerning such inquiry.

`(v) CONSEQUENCES OF NONVERIFICATION- If the person or other entity has received a final nonverification regarding an individual, the person or entity shall terminate employment (or recruitment or referral) of the individual.'.

(b) EFFECTIVE DATE- The amendments made by subsection (a) shall take effect 2 years after the date of the enactment of this Act. Retention of form requirements under section 274A(b)(3) of the Immigration and Nationality Act, as in effect before such effective date, shall remain in effect as if this section had not been enacted for forms completed before such effective date.

(a) IN GENERAL- Section 274A(b)(4) (8 U.S.C. 1324a(b)(4)) is amended to read as follows:

`(A) IN GENERAL- The Secretary of Homeland Security shall establish a verification system through which the Secretary (or a designee of the Secretary, which may be a nongovernmental entity)--

`(i) responds to inquiries made by persons at any time through a toll-free telephone line or other toll-free electronic media concerning an individual's identity and whether the individual is authorized to be employed; and

`(ii) maintains records of the inquiries that were made, of verifications provided (or not provided), and of the codes provided to inquirers as evidence of their compliance with their obligations under this section.

To the extent practicable, the Secretary shall seek to establish such a system using one or more nongovernmental entities.

`(B) INITIAL RESPONSE- The verification system shall provide verification or a tentative nonverification of an individual's identity and employment eligibility within 3 working days of the initial inquiry. If providing verification or tentative nonverification, the verification system shall provide an appropriate code indicating such verification or such nonverification.

`(C) SECONDARY VERIFICATION PROCESS IN CASE OF TENTATIVE NONVERIFICATION- In cases of tentative nonverification, the Secretary of Homeland Security shall specify, in consultation with the Commissioner of Social Security, an available secondary verification process to confirm the validity of information provided and to provide a final verification or nonverification within 7 working days after the date of the tentative nonverification. When final verification or nonverification is provided, the verification system shall provide an appropriate code indicating such verification or nonverification.

`(D) DESIGN AND OPERATION OF SYSTEM- The verification system shall be designed and operated--

`(i) to maximize its reliability and ease of use by persons and other entities consistent with insulating and protecting the privacy and security of the underlying information;

`(ii) to respond to all inquiries made by such persons and entities on whether individuals are authorized to be employed and to register all times when such inquiries are not received;

`(iii) with appropriate administrative, technical, and physical safeguards to prevent unauthorized disclosure of personal information; and

`(iv) to have reasonable safeguards against the system's resulting in unlawful discriminatory practices based on national origin or citizenship status, including--

`(III) the exclusion of certain individuals from consideration for employment as a result of a perceived likelihood that additional verification will be required, beyond what is required for most job applicants.

`(E) RESPONSIBILITIES OF THE COMMISSIONER OF SOCIAL SECURITY- As part of the verification system, the Commissioner of Social Security, in consultation with the entity responsible for administration of the system, shall establish a reliable, secure method, which, within the time periods specified under subparagraphs (B) and (C), verifies, for each individual whose identity and employment eligibility must be confirmed under this section, the individual's name and social security account number, the correspondence of the name and number, and whether the social security number presented is valid for employment. The Commissioner shall not disclose or release social security information (other than such verification or nonverification). If, in carrying out this subparagraph, the Commissioner becomes aware of a suspicious pattern of use of a social security account number, the Commissioner shall investigate such suspicious pattern, or shall notify the Secretary of Homeland Security of it. Nothing in the Social Security Act or any other provision of law shall be construed to prevent the Commissioner from so notifying the Secretary. Upon receipt of such notification, the Secretary shall investigate in lieu of the Commissioner.

`(F) RESPONSIBILITIES OF THE SECRETARY OF HOMELAND SECURITY- As part of the verification system, the Secretary of Homeland Security, in consultation with the entity responsible for administration of the system, shall establish a reliable, secure method, which, within the time periods specified under subparagraphs (B) and (C), compares the name and alien identification or authorization number which are provided in an inquiry against such information maintained by the Secretary in order to validate (or not validate) the information provided, the correspondence of the name and number, and whether the alien is authorized to be employed in the United States.

`(G) UPDATING INFORMATION- The Commissioner of Social Security and the Secretary of Homeland Security shall update their information in a manner that promotes the maximum accuracy and shall provide a process for the prompt correction of erroneous information, including instances in which it is brought to their attention in the secondary verification process described in subparagraph (C).

`(H) LIMITATION ON USE OF THE VERIFICATION SYSTEM AND ANY RELATED SYSTEMS- Nothing in this paragraph shall be construed to authorize, directly or indirectly, the issuance or use of national identification cards or the establishment of a national identification card.

`(I) FEDERAL TORT CLAIMS ACT- If an individual alleges that the individual would not have been dismissed from a job but for an error of the verification mechanism, the individual may seek compensation only through the mechanism of the Federal Tort Claims Act, and injunctive relief to correct such error. No class action may be brought under this subparagraph.

`(J) PROTECTION FROM LIABILITY FOR ACTIONS TAKEN ON THE BASIS OF INFORMATION- No person or entity shall be civilly or criminally liable for any action taken in good faith reliance on information provided through the employment eligibility verification mechanism established under this paragraph.'.

(b) EFFECTIVE DATE- The amendment made by subsection (a) shall take effect 2 years after the date of the enactment of this Act.

(2) by redesignating subsections (j), (l) and (m) as subsections (b), (c) and (d), respectively; and

`(a) Except as provided in subsection (b), (c), or (d), no alien inspected and admitted to the United States on a nonimmigrant visa or who entered the United States without inspection may seek to adjust his status to that of an alien lawfully admitted for permanent residence while the alien is physically present in the United States.'.

(a) TERMINATION OF ASYLUM- Section 208(c)(2) of the Immigration and Nationality Act (8 U.S.C. 1158(c)(2)) is amended by striking `may be terminated if the Attorney General' and inserting `shall be terminated if the Secretary of Homeland Security'.

(b) ALIENS ELIGIBLE FOR TEMPORARY PROTECTED STATUS- Section 244(c) of the Immigration and Nationality Act (8 U.S.C. 1254a(c)) is amended--

(A) by striking `except as provided in paragraph (4) and permitted in subsection (f)(3),'; and

(B) by inserting before the comma at the end `, except where a brief trip abroad is required by emergency and authorized prior to the alien's travel by the Secretary of Homeland Security or is due to extenuating circumstances outside the control of the alien'; and

(2) by striking paragraph (4) and redesignating paragraphs (5) and (6) as paragraphs (4) and (5), respectively.

(c) BENEFITS AND STATUS DURING PERIOD OF TEMPORARY PROTECTED STATUS- Section 244(f) of the Immigration and Nationality Act (8 U.S.C. 1254a(f)) is amended--

(a) IN GENERAL- Section 249 of the Immigration and Nationality Act (8 U.S.C. 1259) is repealed.

(b) CLERICAL AMENDMENT- The table of contents for the Immigration and Nationality Act is amended by striking the item relating to section 249.

SEC. 146. PROHIBITION ON ISSUANCE OF INDIVIDUAL TAXPAYER IDENTIFICATION NUMBER TO ALIENS UNLAWFULLY PRESENT.

Section 6109(c) of the Internal Revenue Code of 1986 (26 U.S.C. 6109(c)) is amended--

`(2) the Secretary is required to verify with the Bureau of Citizenship and Immigration Services that the applicant for any identifying number, other than a Social Security account number, to be assigned by the Secretary is lawfully present in the United States.'.

(a) SECRETARY OF HOMELAND SECURITY- Prior to the implementation of the program described in subtitle B, the Secretary of Homeland Security, in consultation with the Attorney General and the Secretary of State, shall certify to the Congress the following:

(1) The integrated entry and exit data system required under section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1221 note) and section 302 of the Enhanced Border Security and Visa Entry Reform Act of 2002 (8 U.S.C. 1731) is fully implemented and functional, all ports of entry have functional biometric machine readers, and the entry into and departure from the United States of all noncitizens is recorded.

(2) All noncitizens already in the United States legally, and all aliens authorized to enter the United States, have been issued biometric, machine-readable travel or entry documents, as required by section 303 of the Enhanced Border Security and Visa Entry Reform Act of 2002 (8 U.S.C. 1732).

(3) Neither immigrant nor nonimmigrant visas are issued to nationals of foreign states that refuse to permit the return of their nationals who are ordered removed from the United States.

(4) The electronic employment eligibility verification system described in section 274A(b)(4) of the Immigration and Nationality Act (as amended by section 142 of this Act) is fully implemented and functional and all employers in the United States have access to the system.

(5) All 20,000 of the Border Patrol agents authorized in section 103 have been trained and deployed, or, if the number of full time Border Patrol agents is less than 20,000, that United States military personnel are deployed to support the Border Patrol in such numbers as to bring the number of full-time border enforcement personnel in the field to 20,000.

(6) The Chimera system required under section 202(a)(2) of the Enhanced Border Security and Visa Entry Reform Act of 2002 (8 U.S.C, 1722(a)(2)) is fully implemented and functional and includes digital fingerprints and photographs of all aliens granted admission to the United States and all aliens ordered removed or granted voluntary departure from the United States.

(7) All databases maintained by the Bureaus of Citizenship and Immigration Services, Customs and Border Protection, and Immigration and Customs Enforcement that contain information on noncitizens are interoperable and compatible with the Chimera system.

(9) Section 287(g) of the Immigration and Nationality Act (8 U.S.C. 1357(g)) has been fully implemented and Bureau of Immigration and Customs Enforcement employees respond to every request by State or local law enforcement authorities to pick up illegal aliens located by those authorities.

(10) Bureau of Immigration and Customs Enforcement agents are performing random worksite inspections of at least 2 percent of United States businesses annually, and that such inspections focus primarily on industries that tend to hire illegal aliens.

(11) The number of aliens who overstay nonimmigrant visas, but are not removed from the United States, is fewer than 5,000.

(b) ADMINISTRATOR OF ENVIRONMENTAL PROTECTION AGENCY- Prior to the implementation of the program described in subtitle B, the Administrator of the Environmental Protection Agency shall certify to the Congress that neither current levels of illegal immigration, nor the guest worker program established in subtitle B, will significantly affect the quality of the human environment (as such term is used in section 102(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(C))) in the United States.

(a) IN GENERAL- Section 101(a)(15)(H) of the Immigration and Nationality Act is amended to read as follows:

`(H) an alien having a residence in a foreign country which the alien has no intention of abandoning who is coming temporarily to the United States to perform skilled or unskilled work for which qualified and lawfully present workers are not available in the United States, and with respect to whom the Secretary of Labor determines and certifies to the Secretary of Homeland Security that the intending employer has filed with the Secretary an application under section 212(n)(1);'.

(b) ADMISSION OF NONIMMIGRANTS- Section 214(g) of the Immigration and Nationality Act (8 U.S.C. 1184(g)) is amended to read as follows:

`(g)(1) In the case of a nonimmigrant described in section 101(a)(15)(H), the period of authorized admission as such a nonimmigrant may not exceed 365 days during a 2-year period. Such visas may be renewed upon expiration of such 2-year period.

`(2) Such a nonimmigrant may not be permitted to change or adjust to any other immigrant or nonimmigrant classification or status.

`(3) The alien spouse and children of such a nonimmigrant may not, under section 101(a)(15)(H), accompany or follow to join the nonimmigrant.'.

(a) IN GENERAL- The Secretary of Labor shall create an Internet-based job posting system to which all State employment agencies and all United States businesses are able to acquire password-protected access to permit direct posting of job openings throughout the United States.

(b) USE OF EMPLOYER IDENTIFICATION NUMBER- The system shall use the employer identification number to identify an employer and to track use of the system.

(c) RESUMES OF CITIZENS AND RESIDENT ALIENS- Each resume submitted electronically by a United States citizen, or an alien lawfully residing in the United States, with respect to a posted job shall include the employer's employer identification number. An electronic copy of each such resume shall be sent to the Department of Labor, in addition to the copy that is sent directly to the employer.

(d) MAINTENANCE OF DATA- All job announcements posted on the system shall be maintained in archives that include the date of the initial posting, the number of resumes sent in response to the announcement, the date on which the position was filled, and whether it was filled by a United States citizen, an alien lawfully admitted to the United States for permanent residence, an alien otherwise lawfully residing in the United States, a nonimmigrant described in section 101(a)(15)(H) of the Immigration and Nationality Act (as amended by section 210 of this Act), or another individual. This data shall be updated in real time and shall be available to the public in a searchable format.

(e) USE OF DATA- The Secretary of Labor may use posted job announcements, and any resumes submitted through the job posting system, as evidence of compliance or noncompliance by employers using the system to ensure that employers do not hire nonimmigrants described in section 101(a)(15)(H) of the Immigration and Nationality Act (as amended by section 210 of this Act) unless qualified and lawfully present workers are not available in the United States.

(f) REPORTS; CESSATION OF LABOR CERTIFICATIONS BASED ON UNEMPLOYMENT RATE- The Secretary of Labor shall publish a quarterly report, utilizing the data included in the job posting system, indicating the percentage of new hires, by occupation and geographic region (as defined by the Secretary), who are nonimmigrants described in section 101(a)(15)(H) of the Immigration and Nationality Act (as amended by section 210 of this Act) and the unemployment rate by occupation and geographic region. If the unemployment rate rises above 5 percent in a particular occupational category in a geographic region in which more than 15 percent of new hires are such nonimmigrants, no applications under section 212(n)(1) of such Act (as amended by section 212(g) of this Act) for such nonimmigrants for that occupation and region shall be approved until the unemployment rate falls below five percent. The Secretary shall reassess the prevailing wage for that occupation in that geographic area to ensure that it reflects changed market conditions prior to resuming approvals of such applications, and all new applications must reflect the revised prevailing wage.

(g) EFFECTIVE DATE- This section shall take effect on the date on which the certifications required under section 201 are made.

(a) IN GENERAL- An employer seeking to hire a nonimmigrant described in section 101(a)(15)(H) of the Immigration and Nationality Act (as amended by section 210 of this Act) shall post an announcement of the job for which the alien is sought on the Internet-based job bank described in section 211.

(b) FEE- Such an employer shall pay a fee of $10 per announcement posted. Such fees shall be placed by the Secretary of Labor in a fund to be established and used to maintain the Internet-based job bank described in section 211. Any amounts from such fund not used for system maintenance shall be used to investigate abuses by employers of the authority to hire a nonimmigrant described in section 101(a)(15)(H) of the Immigration and Nationality Act (as amended by section 210 of this Act).

(4) A description of all specific skills or experience required to perform the job.

(5) The wage rate or salary being offered for the job, which shall be at least 100 percent of the prevailing wage rate for the occupation, as determined by the `Occupational Employment Survey' of the Bureau of Labor Statistics.

(d) MINIMUM POSTING PERIOD- Each announcement shall be posted for a minimum period of 14 days before an employer may seek authorization to hire a nonimmigrant described in section 101(a)(15)(H) of the Immigration and Nationality Act (as amended by section 210 of this Act).

(e) REQUIRED ESCROW OF RETURN TRANSPORTATION COSTS- An employer of a nonimmigrant described in section 101(a)(15)(H) of the Immigration and Nationality Act (as amended by section 210 of this Act) shall place into an escrow account at the time of hiring sufficient funds to transport the nonimmigrant back to the home country when the job ends or when the period of authorized admission as such a nonimmigrant expires.

(f) REQUIRED PROVISION OF HEALTH INSURANCE- An employer of a nonimmigrant described in section 101(a)(15)(H) of the Immigration and Nationality Act (as amended by section 210 of this Act) shall provide such nonimmigrant with health insurance that meets existing minimum Federal and State requirements, as applicable.

(g) AMENDMENTS TO IMMIGRATION AND NATIONALITY ACT- Section 212(n) of the Immigration and Nationality Act (8 U.S.C. 1182(n)) is amended as follows:

(1) By striking `H-1B nonimmigrants' each place such term appears and inserting `H nonimmigrants'.

`(H) The employer has not laid off or fired (except for cause) any United States citizen or legally resident alien worker performing the announced job or an equivalent job in the 6 months immediately preceding the date of application and that the employer will not lay off or fire (except for cause) any such worker in the 6 months immediately following the date of application. If the employer, due to unforeseen financial or economic circumstances, must lay off a United States citizen or legally resident alien worker during the 6 months following application for an H nonimmigrant, the employer will terminate the H nonimmigrant prior to laying off a United States citizen or legally resident alien worker performing an equivalent job.'.

(3) In paragraph (1)(A)(i)(II), by striking `, and' and inserting `, as determined by the Occupational Employment Survey of the Bureau of Labor Statistics, and'.

(A) by striking, `(G)(i) In the case of an application described in subparagraph (E)(ii), subject to clause (ii), the' and inserting `(G) The'; and

(D) in paragraph (3)(C), `subparagraph (A)--' through `(ii)' and inserting `subparagraph (A),'.

(a) IN GENERAL- Section 214(g) of the Immigration and Nationality Act (8 U.S.C. 1184(g), as amended by section 210(b), is further amended by adding at the end the following:

`(4) Aliens applying for nonimmigrant status under section 101(a)(15)(H) shall be physically present in the country of the alien's residence and shall apply at a United States embassy, consular office, or other designated State Department post.

`(5) Such aliens shall pay a visa processing fee in an amount determined under section 281.

`(6) Such aliens shall file an application that includes a listing of their education, job skills and prior employment history, along with supporting documentation and references.

`(7) Such aliens do not have to be applying for a specific job that is open, but rather shall apply to be added to a database of workers who are already processed and waiting for a job to open that matches their skills set. Aliens approved for such status shall remain in the foreign country of residence until such time as an employer is approved to hire such a worker and finds that a particular approved alien meets the needs of the particular job opening.

`(8) The Secretary of State shall verify that the education and work history provided by such an alien is accurate, prior to the alien's name being added to the database of approved prospective nonimmigrants under section 101(a)(15)(H).

`(9) Such aliens shall submit to fingerprinting and photographing by Department of State or Homeland Security personnel so that the data may be added to the Chimera system required under section 202(a)(2) of the Enhanced Border Security and Visa Entry Reform Act of 2002. Such identifying information shall be entered into the Chimera system before a nonimmigrant visa under section 101(a)(15)(H) may be issued. Such aliens shall undergo criminal background and health checks to ensure admissibility under section 212(a).

`(10) Any alien who violates a term or condition of the alien's admission as a nonimmigrant under section 101(a)(15)(H), including failure to leave the United States at the termination of the period of authorized admission, shall be barred from receiving any immigrant or nonimmigrant visa for a period of 10 years.

`(11) Aliens applying for nonimmigrant status under section 101(a)(15)(H) shall sign a legally enforceable affidavit attesting that they--

`(A) understand that they will not be permitted to change or adjust to any other immigrant or nonimmigrant classification or status while present in the United States;

`(B) waive eligibility for any Federal, State or local non-emergency public assistance for which they might otherwise be eligible during their tenure as such a nonimmigrant; and

`(C) understand the penalties for failing to abide by the terms of their admission as such a nonimmigrant.

`(12) Aliens who apply for renewal of nonimmigrant status under section 101(a)(15)(H) shall undergo new criminal background and health checks before the renewal may be granted.'.

(b) SPECIAL RULE ON CITIZENSHIP AT BIRTH FOR CHILDREN OF H NONIMMIGRANTS- Notwithstanding title III of the Immigration and Nationality Act (8 U.S.C. 1401 et seq.), or any other law, a child born in the United States to a parent who is a nonimmigrant described in section 101(a)(15)(H) of the Immigration and Nationality Act (as amended by section 210 of this Act) shall not be a national or citizen of the United States at birth unless the other parent is a citizen of the United States or an alien lawfully admitted to the United States for permanent residence.

Section 214(g) of the Immigration and Nationality Act (8 U.S.C. 1184(g), as amended by sections 210(b) and 213(a), is further amended by adding at the end the following:

`(13) The Secretary of Labor shall establish and maintain a database of all nonimmigrant visa applicants under section 101(a)(15)(H) who are approved by the Department of State. Such database shall include all identifying information and all information regarding job skills and employment history, as collected by such Department. Once the Secretary of Labor approves an employer's application under section 212(n)(1), such Secretary shall make available to the employer a list of aliens who are available and approved by the Department of State to fill the open job position, as described in the announcement posted by the employer on the Internet-based job posting system established under section 211 of the BE REAL Act of 2003. No employer shall have access to any information included in the database regarding such visa applicants until after such application is approved. The Secretary of State shall transmit to the Secretary of Labor all information regarding the identity, job skills, and employment history of an alien not later than 7 days after the date on which the Secretary of State determines that the alien has satisfied all the requirements established in paragraphs (4) through (12).'.

Except as otherwise provided in this subtitle, this subtitle, and the amendments made by this subtitle, shall take effect 1 year after the date on which the certifications required by section 210 are made. END

of perjury and on a form designated or established by the Secretary of Homeland Security by regulation, that it has verified that the individual is not an unauthorized alien by obtaining from the individual the individual's social security account number and recording the number on the form (if the individual claims to have been issued such a number), and, if the individual does not attest to United States citizenship under paragraph (2), obtaining such identification or authorization number established by the Department of Homeland Security for the alien as the Secretary may specify, and recording such number on the form.';