Senate GOP Policy Committee Summarizes Substitute to Senate-Passed Immigration Bill

• On May 21, the Senate invoked cloture on the motion to proceed to S. 1348 by a vote of 69 to 23. Shortly thereafter, Senator Reid, proposed a substitute (Amendment No. 1150) on behalf of a bipartisan group of Senators. This Legislative Notice describes that substitute.

• The substitute represents an agreement by a bipartisan group of Senators and negotiators on behalf of the Bush Administration that was publicly announced on May 17.

• The substitute has the same title names in the same order as S. 1348, the underlying bill, but contains substantially different language in all of the titles. (On May 15, RPC issued Legislative Notice No. 15, so consult that for comparisons with the underlying bill. Recall that S. 1348 is essentially the same bill as S. 2611 of the 109^th Congress, which the Senate passed on May 25, 2006.)

• Key new provisions in the substitute (that were not contained in S. 1348) include: (1) a new Y visa for certain temporary workers; (2) a new Z visa program that would apply to most of the unauthorized aliens currently residing in the United States; and (3) a merit-based point program to govern the awarding of future permanent resident status.

• Trigger. The temporary worker and legalization programs created under the bill will not become effective until the following have been funded, put in place, and put in operation: (a) 18,000 Border Patrol agents have been hired, (b) certain barriers and assets are in place on the southwest border, (c) the policy of "catch-and-release" has permanently ended and resources to detain 27,500 aliens per day have been obtained, (d) the new employment verification system is operational, and (e) the Department of Homeland Security (DHS) has begun processing applications for the unauthorized alien population (Z visas).

• Border Security and Immigration Enforcement.The enforcement provisions of this Legislative Notice may be compared to the same section in the Legislative Notice (No. 15) issued May 15, as there are significant differences in what each addresses. Generally, these sections add more personnel and assets to combating illegal immigration, and provide for some legal fixes to adverse court holdings. (Titles I and II)

• New Temporary Worker Visa. The substitute provides 400,000 new temporary workers for areas of work not currently covered by another already-created work visa category (except that Y visa holders may work in the agriculture industry). (Title IV)

• Increasing Green Card (Permanent Resident) Quotas. The substitute dissolves the diversity visa program and restricts some types of extended-family immigration (and caps number of immigrant parents of U.S. citizens) to add more green card numbers to the current backlog of applicants. That current backlog (minus those who applied after May 2005) is, thus, expected to be completed within eight years. New applicants for green cards would almost immediately have to apply under the new merit-based system. (Title V)

• New Merit System. The bill institutes a new merit-based system that places those who have earned the most highly-prized skills at the front of the line. It is expected that 60 percent of immigration to the United States would still be nuclear family-based, but extended family would only receive some preference under the merit system. (Title V)

• Z visas and the current unauthorized alien population. The current unauthorized alien population will be given a chance to become legal by registering within the one-year registration period given to declare themselves. The applicants must pay a fine, undergo a background check, and will be given a Z non-immigrant visa that must be renewed every four years. If the Z visa holder wishes to pursue a permanent residence, he or she must qualify under the new merit system (Title VI) and must leave the country to apply (Title VI).

• Electronic Employment Verification System (EEVS). The bill creates a new electronic employment authorization verification system. Employers would be required to check their new hires, and eventually their current employees, by submitting employee information through the Internet or telephone and checking identity and authorization documents. The bill allows for DHS to implement a plan whereby photographs on documents submitted by the employee would appear on an employer's screen via Internet, so that the employer can help verify identity. (Title III)

The substitute, like the underlying bill, is organized in this fashion:

[For assistance in reading the legislative descriptions in this Legislative Notice, RPC has provided a small glossary, which is appended to this Notice.]

TITLE I -- BORDER ENFORCEMENT ASSETS FOR CONTROLLING U.S. BORDERS

Trigger. The programs created by Title IV (temporary workers) and Title VI (legalization) will not become effective until the President certifies that the following are funded and in operation (or installed):

Technological Assets and Infrastructure. The bill authorizes such sums as necessary for the acquisition of unmanned aerial vehicles (UAVs), cameras, poles, sensors and other technologies to achieve operational control of the borders, and additional fencing near San Diego. (Sections 102, 103, 124 and 125)¹

US-VISIT and Entry Inspection. The bill restates DHS's authority to collect biometric entry and exit data at U.S. ports of entry. By October 1, 2008, DHS will be required to enhance the connectivity between the Automated Biometric Fingerprint Identification System (IDENT) and Integrated Automated Fingerprint Identification System (IAFIS) biometric databases, and collect all fingerprints from individuals through the United States Visitor and Immigrant Status Indicator Technology (US-VISIT) program during their initial enrollment. The bill also requires DHS to submit to Congress a timeline for equipping all land-border ports of entry with the USVISIT system and deploy at all land-border ports of entry the exit component of the US-VISIT system. It also authorizes DHS to collect biometric data from any alien seeking admission to, exit from, transit through, or parole into the United States, and provides that failure to comply with the biometric requirements is a ground for inadmissibility. The bill makes it a crime to evade a port of entry inspection,² and certain customs seizure capabilities are expanded (Sections 112, 114, 129, 130). The bill would amend section 275 of the Immigration & Nationality Act (INA) to increase penalties for illegal entry or reentry into the United States (some of the criminal actions would be considered felonies). (Sections 206-207)

Catch & Release. DHS can only release aliens from non-contiguous countries in detention with a $5000 bond. (Section 113)

DOL Anti-Fraud Efforts. The Department of Labor (DOL) will be given anti-fraud training. (Section 131)

New Grant Program. A new grant program for states with large unauthorized alien populations ($50 million per year for 2008-2012) would be authorized. (Section 132)

Border Security Plans and Reports Like S. 1348, the substitute requires the Secretary of Homeland Security to submit a comprehensive plan for the systematic surveillance of the U.S. land and sea borders, a National Strategy for Border Security, and a plan to combat human smuggling and cross-border deaths. A port-of-entry infrastructure assessment and a demonstration program is mandated, along with a National Land Border Security plan. The Government Accountability Office (GAO) is directed to review Border Patrol training. Further, there will be a report on deaths at the U.S.-Mexico border and on damage to federal protected lands. (Sections 121-122, 126-127, 133-135)

TITLE II -- INTERIOR IMMIGRATION ENFORCEMENT

Additional personnel. The bill authorizes significant increases in immigration personnel for each year in 2008-2012: 100 more trial attorneys (for immigration court); 100 more U.S. Citizenship & Immigration Services (USCIS) adjudicators (to evaluate immigration applications); 50 more attorneys devoted to immigration cases at U.S. Attorney offices; 20 new Immigration Judges (for immigration courts) with 80 support staff; 10 more Board of Immigration Appeals (BIA) judges; 20 more BIA staff attorneys with 10 more support staff; 50 more staff for the Administrative Office of U.S. Courts (AOUSC) for the Federal Defender Program; and 50 more attorneys at the Office of Immigration Litigation in the Department of Justice (OIL). It also authorizes one clerk for each immigration judge. (Section 201)³

Improved Document Integrity. The bill provides a comprehensive rewriting of chapter 75 of Title 18 of U.S. Code (passports and visa fraud) and also expands passport, visa, and immigration anti-fraud provisions.⁴ (Sections 208, 209, 214)

Detention and Removal of Aliens. The bill authorizes, subject to appropriations, DHS to build 20 new detention facilities that could together hold 20,000 individuals at any one time for removal proceedings. The Supreme Court's decision in Zadvydas v. Davis, 533 U.S. 678 (2001) mandates the release of a former criminal alien detained for the purpose of deportation if his deportation cannot be secured within six months. (Note: many countries refuse to accept some of their own citizens or otherwise make it very difficult for DHS to deport them home.) The bill provides authority to detain beyond the removal period aliens ordered removed who are inadmissible; who are removable as a result of violations of status requirements or entry conditions, violations of criminal law, or reasons of security or foreign policy; or who have otherwise been determined by the Attorney General to constitute a risk to the community or to be unlikely to comply with the order of removal. (Sections 137, 202)

Aggravated Felony. The term "aggravated felony" under the INA is modified to include (a) convictions even if the length of the sentence was based on recidivist or other enhancements, (b) all human smuggling crimes, (c) any felony conviction under INA section 275 (Improper Entry by an Alien) and section 276 ("Reentry of Removed Alien"), and (d) soliciting, aiding, abetting, counseling, commanding, inducing, or procuring another to commit one of the crimes listed already in the definition. (Note: the current definition covers only crimes under Sections 275(a) and 276 that were committed by an alien previously deported for another aggravated felony; by capturing the rest of Section 275, the definition now includes felony convictions for marriage fraud and immigration-related entrepreneurship fraud.) The bill also bars a refugee convicted of an aggravated felony from eligibility for adjustment of status (i.e., the refugee would not be allowed to get a green card). (Section 203). It would be a crime to carry a firearm when smuggling aliens (Section 205(f)). The bill also makes it a crime for an alien who is not a permanent resident (green card holder) to purchase a firearm (by amending 18 U.S.C. § 922) (Section 213).

Gang Violence. The bill renders inadmissible any alien who is known to be or believed to be (by a consular officer, or DOJ, or DHS employee) a member of a gang, or who has participated in such a gang's activities if the alien knows or has reason to know that such activities supported the gang's illegal conduct. Temporary Protected Status (TPS) is denied to any alien who is a member of a gang, or who has been at any time after admission. (Section 205). Temporary Protected Status (TPS)⁵ is a "quasi-refugee-like" status given to nationals of countries that have recently undergone trauma (e.g., hurricane, civil war); some of those granted TPS have become criminal gang members, and the bill would allow DHS to revoke TPS status if the alien is part of such a criminal gang (Section 205(d)).

Institutional Removal Program. The bill authorizes DHS to extend the Institutional Removal Program (IRP), which identifies removable aliens in Federal and State prisons and removes such aliens after completion of their sentences, to all states. It also directs the Secretary of DHS to study the effectiveness of alternatives to detention, including electronic monitoring and the Intensive Supervision Appearance Program (ISAP). It also provides for incentives to unauthorized aliens to accept voluntary departure. (Section 210-212)

Diplomatic Security Services & Visas. The bill authorizes Special Agents of the State Department and the Foreign Service to investigate illegal passport or visa issuance, identity theft, document fraud, and Federal offenses committed within the special maritime and territorial jurisdiction of the United States.⁶ (Section 215). The bill provides for a technical change describing when a visa can be cancelled (Section 228).

State and Local Law Enforcement of Federal Immigration Laws. The bill requires the Secretary of Homeland Security to reimburse state/local police organizations for training required under Immigration & Nationality Act § 287(g). (Sections 218, 221, 223). The State Criminal Alien Assistance Program (SCAAP) would be increased to allow DHS to reimburse state and local governments for costs associated with processing unauthorized aliens through the criminal justice system. Appropriations are authorized at $750 million for FY2009, $850 million in 2010, and $950 million for FY2011-2013 (Section 217).

Streamlined Background Checks. The bill would create a task force to discover and implement ways to increase response time for applications for immigration benefits that have been delayed because of an unresolved background check. (Section 216)

Protecting Immigrants from Convicted Sex Offenders. The bill prohibits certain criminals (i.e., convicted sex offenders) from sponsoring an alien (e.g., spouse or fiancée) for a green card unless the DHS determines that the sponsor poses no threat to the alien.⁷ (Section 222)

TITLE III -- WORK AUTHORIZATION VERIFICATION

The Title begins with an explanation of the purpose for creating a new electronic work authorization verification system. (Note: many conservatives believe that such a system is a major component of addressing further illegal immigration by requiring all the nation's employers (estimated at 7 million) to verify the work authorization of all new employees as they are hired). (Section 301). [Note: RPC has issued a policy paper explaining the intricacies of the current system and considerations for changes: http://rpc.senate.gov/_files/Feb2806WorkAuthLBAddendum.pdf.]

The title replaces INA section 274A, and makes clear that it is unlawful for an employer, or a subcontractor for an employer, to knowingly or with reckless disregard hire or continue to hire an alien who is not authorized to work. An employer who in good faith complies with the requirements of this section has an affirmative defense against that unlawfulness. (Section 302(a))

Attestations. An employer must attest, under penalty of perjury, that he or she has reasonably verified the identity and eligibility for work of each new hire. (New INA 274A(c)(1)(A)). A new hire must attest that he/she is a citizen, permanent resident, or an alien authorized to work. (New INA 274A(c)(2)). Employers must keep copies of the verification forms (new INA 274A(c)(3)-(4)).

Examination of Documents. An employer must examine a document from each new hire that verifies both identity and work authorization, or two documents that together prove both. (Note: all U.S. citizens and Legal Permanent Residents ("green card holders") are work authorized.) (New INA 274A(c)(1)(A))

Documents Establishing Work Authorization. Documents that verify both identity and work authorization are specified to be: (1) a U.S. passport, (2) a green card, (3) a U.S. visa (or other document issued by the State Department) indicating work authorization, if it contains certain biometric features,⁸ and (4) a card given to Z visa holders for interim benefits.⁹

Documents that verify identity include: (1) REAL ID "compliant" driver's license or state ID, (2) a non-REAL ID compliance driver's license that DHS approves, and (3) other documentation that is approved by DHS. Documents that verify work authorization: (1) a Social Security Card (other than one stamped "not valid for employment"), but DHS, under this bill, may at some point restrict this to only newly issued Social Security Cards that are updated for enhanced security, and (2) other documentation that DHS approves. (New INA 274A(c)(1)(C)-(F))¹⁰

Timetable. DHS will issue regulations regarding the timetable for all employers to comply with the new system. No later than six months after enactment, however, DHS will require critical infrastructure companies to comply; within 18 months after enactment, all employers will use the new verification system with regard to all new hires; and, within three years all employers will have to verify all their current employees. GAO will conduct audits of the system during the initial implementation of the system. (New INA 274A(d))

Registration. All employers will have to be registered for the system, and use the System to provide DHS with identity and documentation information for each hire on the first day that the employee starts work. However, the employer cannot make verification a condition of employment. (Note: the system is anticipated to be primarily Internet-based, but provides for telephonic inputs and responses.) (New INA 274A(d)(5)(A))

Inputs into the System. After the employer inputs the information in the System over the Internet, DHS will provide a confirmation or non-confirmation within three business days. (Note: in most cases, it is anticipated the DHS will be able to send a picture, identical to the picture in each submitted document, to the employer to help verify identity.) DHS may provide the employer with a further action notice, and expect the employer to comply. If the employee receives a further action notice through the employer, the employee has 10 days to contest, or a non-confirmation notice will be issued; a contest will be settled with finality within 10 days of the contest. A non-confirmation notice means the employer must terminate the employee's employment. (New INA 274A(d)(5)(A)-(E))

Employers are prohibited, among other things, from using the System to pre-verify new hires before they actually begin work, or require new hires to pre-verify themselves. Penalties can reach up to $10,000 for each violation. (New INA 274A(d)(5)(F)). Employers are protected from liability for using the System to verify work authorization. (New INA 274A(d)(6))

Challenges to non-confirmation. Individuals who receive a non-confirmation may challenge the response within 15 days through administrative review at the Social Security Administration, for those who claim U.S. citizenship, and at DHS for those who are aliens. (New INA 274A(d)(7)). There will be an exclusive method for judicial review under 28 U.S.C. 158, with few exceptions. (New INA 274A(d)(8)).

Management of the System. DHS will manage the system and provide for appropriate changes to the System, and may develop algorithms to combat identity theft. It will have access to passport, visa, Social Security,¹¹ and state vital statistics and driver license databases to operate the System, and is authorized to display the photograph used in passports or driver's licenses (or other) with the employer to assist in verifying the identity of the new hire. DHS is restricted from using the databases for anything other than enforcing immigration laws, laws related to the System, or anti-terrorism laws. (New INA 274A(d)(9)-(11)). DHS will have access, under stringent conditions, to certain taxpayer information for enforcement purposes. (Section 304)

Compliance and enforcement. DHS will set up procedures to ensure employer compliance, including the conduct of investigations. Various civil and criminal penalties are set out, and DHS can require an employer to certify that it is in compliance with this Title; the conditions for judicial review of any such non-compliance are set out as well. DHS may create a lien against an employer for violations and payment of penalties under this Title. There is a prohibition against indemnity bonds, and violators will be prohibited from partaking in certain government contracts. (New INA 274A(e)-(h), (l)). DHS may issue regulations that require an employer to take action with respect to an employee who is the subject of a Social Security No-Match letter (a letter sent from SSA explaining that the name and Social Security number written on a W-2 tax form does not match Social Security records). (New INA 274A(k)).¹² The Internal Revenue Service and SSA can assist DHS in certain enforcement (Section 309).

TITLE IV -- TEMPORARY WORKERS, AND H-2C VISAS

This title amends Section 218A of the INA.

Y Visa. A new Y visa is created for aliens who intend to work in the U.S. under terms not already provided for in other existing temporary work visa categories. The Y-1 visa is the general visa category, while there is a revised H-2A category for seasonal agricultural workers. The Y-2B category is for seasonal non-agricultural workers; and the Y-3 category is for family derivative visas. (Section 401 inserts new section 218A into the Immigration and Nationality Act (INA)). The fee includes a processing fee, and $500 for a state impact fee ($250 for a derivative family member). (New INA section 218A(e)(3))

Matching Willing Workers with Willing Employers. All Y workers must be matched to "willing employers" through an electronic database in order to qualify for a Y worker visa. (Section 414)

Families of Y Visa Holder. Family members can only accompany Y workers if the worker can show proof of valid medical insurance and demonstrate that the wages of the principal Y nonimmigrant(s) are 150 percent above poverty level for the household size. Spouses and children who do not qualify for the Y-3 visa may be admitted under other nonimmigrant status. (New INA section 218A(e)(8))

Period of Admission. A Y-1 worker can be admitted for a two-year period that can be renewed twice if that worker spends a period of one year outside the United States between each admission; a Y-1 accompanied by dependents is afforded a single two-year visa, non-renewable; workers with Y-2A and Y-2B (seasonal agriculture) visas qualify for 10-month visas; no extensions may be granted. (New INA section 218A(i))

Family Visitor Visa. The bill also creates a new special family visitor visa for aliens to enter the country temporarily to visit family of Y visa (Title IV) holders, but those aliens must post a $1,000 bond, possess the means to return to the country of origin, may not stay for more than 30 days per year and cannot work. Further, DHS will issue a report studying the family situation of Y visa holders, and may make ineligible nationals of certain countries with a history of sending family member who overstay. All family visitor visa abusers will be permanently barred from immigration benefits (except for asylum), and the Y or citizen sponsor of such alien will be barred from again sponsoring aliens for the family visitor visa (and such Y visa holder will have his or her visa terminated). (Section 506)

Inadmissability. Various immigration inadmissabilities do not apply to Y workers, including having been in the United States illegally in the past, having been a stowaway, and having committed certain types of fraud or misrepresentation. The Y visa status will terminate if the worker becomes unemployed for 60 days. A Y worker who fails to timely depart is permanently barred from any future immigration benefit. (New INA sections 218A(f), (h), (j), (l), (n))

Wage. The employer must attest that the Y worker will be paid a competitive wage and that the employer advertised the job twice. Employers can become ineligible to petition for Y workers if they violate certain conditions, and all employers will be denied petition approval for a worker destined to work in a county with high (7-percent) unemployment. Y visa holders cannot act as independent contractors; special conditions are placed on labor recruiters. (INA section 218A(c) and section 403). The Department of Labor may hire 1000 more investigators to ensure compliance with labor standards (Section 410).

State Impact Grants. The state impact fees will be placed in an account and distributed by the Department of Health and Human Services in the amount of $5 million for each state, or more depending on the size of the foreign population in the state, adjusted by a provision for high impact areas. (New INA section 218A(x))

Seasonal Agricultural Workers. Agricultural associations can submit applications on behalf of employer members. The agricultural worker portion of the bill would reform the current system of issuing H-2A agricultural worker visas (currently, only about 35,000 H-2A visas are issued each year even though the visa category is uncapped, mainly because the process is so cumbersome). The reform would, among other processing changes, allow agricultural workers (a) 10 month stays in the United States, and two months out of the U.S. each year (the same as seasonal H-2B non-agricultural workers have currently),or (b) the ability to enter the U.S. for two years at a time, after which they must return home for a full year, before they could renew under the same time conditions two more times. Goat herders, sheep herders, horse workers, and dairy workers would have the option of a one-time three-year visa, or the two options discussed above. (Subtitle B)

Numerical Limitation. The Y-1 visa program has an initial cap of 400,000 with yearly adjustments based on market fluctuations. There are no numerical limitations for H-2A visas while the Y-2B visas are initially capped at 100,000 with yearly adjustment based on market fluctuations. The market-based fluctuation is adjusted every six months during the fiscal year. The Y-3 visa for spouses and minor children limit may not exceed 20 percent of annual limit for Y-1 visas. A newly created Standing Commission will make recommendations to Congress regarding the Y visa numerical cap for each fiscal year following the initial year of the program. (Section 408)

Sending Countries. The Secretary of State may negotiate with a sending country, as a condition of granting Y visas to its citizens, a bilateral agreement to ensure the country will readmit its nationals if ordered removed. (Section 409)

Commission on Immigration and Labor Markets. The President will appoint members with expertise in economics and immigration from the private sector, and form a Commission with cabinet members to study the impact of nonimmigrant workers on the U.S. economy. (Section 411)

Student Visas and Dual Intent. The bill allows student aliens to work off-campus. (Note: most student visa holders are exempt from Social Security payments.)¹³ The bill extends foreign students' post-curricular Optional Practical Training (and F-1 status) to 24 months. It also creates a new "F-4" student visa for advanced degree candidates studying in the fields of math, engineering, technology, or the physical sciences. The new visa will allow eligible students to either return to their country of origin or remain in the United States for up to one year and seek employment in their relevant field of study. The bill eliminates "dual intent" (that is the ability to apply for permanent status at the same time that the alien is in the United States in temporary status) for a number of categories including H-1B, but allow certain student dependents the ability to escape this requirement. (Section 418)

H-1B Visa Streamlining. The bill adds provisions to increase the H-1B visa quota from 85,000¹⁴ to 115,000 in FY2008, with an escalator clause based on demand for H-1B visas. H-1B visa holders can remain in the U.S. over the normal six-year limit if an employer sponsors them for a merit-based green card. Certain requirements for employers hiring H-1B visa holders are changed and streamlined, but with antifraud provisions inserted. (Sections 419-421)

L-1 Visa Reform. The bill places new requirements on regular and start-up L-1 intercompany transferee visas. Specifically, it requires start-up companies to provide business plans, proof of physical premises, proof of financial viability, and other supporting evidence before the visa can be issued. In some cases, L-1 visa status may only be granted for one year. (Sections 422, 424)

Medical Services in Underserved Areas. The bill permanently authorizes the current J-1 visa waiver for INA 212(e) (the requirement that foreign medical students go back to serve in their home country for two years before applying for a green card in the U.S.). Under this program, participating states are allocated 30 J-1 visa waivers, which enables them to waive the two-year home-residency requirement for medical students and physicians who serve in "medically underserved areas" upon completion of their J-1 program. The program has been reauthorized twice before. (Section 425).

TITLE V -- GREEN CARD QUOTAS

The Quota Numbers. [For a fuller explanation of this issue, see the attached chart.] Family-sponsored immigrant quota will be set at 567,000 green cards per year until the first Z visa holders (Title VI) begin gaining permanent residence, and thereafter, the cap is set at 127,000. Immediate relatives (spouses and minor children of U.S. citizens) will remain uncapped. (Explanatory note: this section is intended to increase the green card quota while the current backlogs in applications are eliminated in eight years; thereafter, applicants for green cards will be adjudicated by the new merit system that this title sets forth, with a smaller portion guaranteed to be used for family-based immigration.).

Merit-Based Green Card Quotas. The world-wide level of merit-based green cards for the first five fiscal years will be set at 242,335, the number of employment-based green cards that were issued in FY05, but 10,000 of those must be used for exceptional aliens that came in under the Y visa category (Title IV), and 90,000 is to be used to help reduce the backlog of pending cases. Thereafter, the quota will be set at 140,000 until Z visa holders start applying for green cards (with the same sub-allocation described in the last sentence). Once Z visa holders are eligible for green cards, the cap will increase to 380,000, (plus any number of green cards needed to provide qualified Z visa holders green cards) per fiscal year, with 10,000 of that number guaranteed for exceptional Y visa holders. (Section 501). Certain quotas for Special Immigrants, employment creation visas, and fiancé visas are also changed (Section 502(b)(4)).

The Merit Points. The current employment-based green card categories is struck (Immigration & Nationality Act section 203(b)(1)-(3), and replaced with the merit-system. Initially (for at least six years), points under the merit-system will be allocated as follows (in summary):

 Work:                                      Up to:

Aliens Not Subject to a Quota. Two categories of aliens will be added to the list of aliens who are not subject to the green card cap: accompanying parents of a green card holder, and aliens born to a green card holder while temporarily abroad. (Section 503(a)). "Immediate relative" is redefined to mean just the (under 21) child or spouse of a citizen (over 21 years of age) or certain deceased citizens, or battered spouse/child. (Section 503(b)).

Family-based green card quotas. [See attached chart for a full explanation of this section.] Family categories and respective quotas are redefined, so that the categories will be: (1) parent of a citizen, over the age of 21, capped at 40,000 per year; (2) spouses or children of green card holders or non-citizen U.S. nationals, capped at 87,000 per year (the same as current law); and (3) 440,000 green cards total per year, to unmarried adult children of citizens, with no more than 70,400 per year, and unmarried adult children of green card holders, with no more than 110,000 per year, married adult children of U.S. citizens, at 70,400 per year, and siblings of U.S. citizens, at 189,200 per year. Note that if any backlog is cleared in any of these lines, the extra green cards in that line would transfer to backlogged lines. (Section 503(c)).

Per-Country Quotas. The per-country caps in current law will be expanded to allow 10 percent of the world-wide quota to be used for any one country, except that there will be no cap for Z visa card applicants for green cards, and certain family petitioners currently in line for a green card. (Section 508)

Census. There will be a survey conducted among those in the current applicant line, and DHS may cancel the petition of those who do not respond to the survey (that is, a non-response would be taken as a sign that the petitioner is no longer serious about his/her application). The top 20 percent of the Z visa population (created in Title VI) will be the first to qualify for a green card under a special green card allocation for Z visa holders This allocation will be distributed over five years to all Z visa card holders who qualify for a green card under the new merit system. (Section 503(f)).

Special cases. The bill creates a new section 203A in the Immigration & Nationality Act (INA) for hardship cases involving family (but caps the quota for these cases at 5,000 per year). (Section 504).

Confidentiality. DHS may audit immigration applications and refer information to the appropriate law enforcement agencies to pursue cases of fraud; the fraud prevention fund (under INA section 286(v)(2)) will be redistributed. (Section 507).

TITLE VI -- Z VISAS AND LEGALIZATION

This title provides a new visa for most individuals currently living within the United States illegally.

Z visa status. The bill creates a new four-year, renewable "Z" nonimmigrant visa to address the unauthorized alien population within the U.S. Applicants must prove that they were illegally in the U.S. before January 1, 2007, and must be employed at the date of application, must pay a fine, a processing fee, and a state-impact fee, and must undergo a background check.

Inadmissable to the program. Applicants for a Z visa would not be eligible to get a Z visa if they are inadmissible under INA § 212(a) (e.g., if they have a contagious disease, are a terrorist, a World War II-era Nazi, a child abductor, a former U.S. citizen who renounced to avoid tax liability, an unlawful voter) and if the applicant had been convicted of a felony or three misdemeanors). However, under the bill the following inadmissibilities will not apply to Z visa applicants: (a) committing fraud or misrepresentation for any immigration purpose (other than for obtaining work) prior to application, (b) being a stowaway, (c) being a student-visa abuser, (d) lacking proper immigration documents, and (e) being unlawfully present in the U.S. However, the Secretary is unable to waive certain inadmissabilities including child abduction provisions, except that the Secretary may waive any provision for humanitarian reasons. (Section 601(d)). If the principal Z alien becomes inadmissible or removable, the Z visa terminates, and so do the Z visa benefits to any derivative (non-citizen) spouse and child. (Section 601(o)). There is a special exemption for past conduct of aliens who violated the criminal code on making counterfeit or falsified entry documents with respect to waived inadmissability (Section 609).

Fees and Penalties. To apply, the alien must pay fees and penalties amounting to: $1,500 processing fee maximum (for initial application and extension), $1,000 penalty (once), $500 for each derivative family member, and $500 state impact fee (once). The Secretary is allowed to set up installment plans, and there is a special provision for agricultural workers to be credited for some penalties (Section 601, 608).

Registration and Probationary Status. Once an applicant submits a completed application, fingerprints, and is cleared by a one-day background check, he will receive probationary benefits which can eventually be converted to a Z nonimmigrant status after all background checks are clear and the triggers set forth in Title I are achieved.

Timing. DHS will accept applications for Z visa status for one year (that can be extended for another year by DHS), starting 180 days after enactment (during which time, regulations will be promulgated). (Section 601(f)). If an alien is apprehended during the 180 days after enactment, and can prove that he or she would qualify for a Z visa, that alien will not be deported. (Section 601(h)(5)).

Probationary Status. DHS will conduct a background check, to include fingerprint check, within a day, and if not otherwise inadmissable, the alien will be given a probationary status (including work authorization), but will lose it if he or she ever becomes inadmissable. (Section 601(h))

Evidence and Adjudication The application will be adjudicated and evidence of illegal status before January 1, 2007 weighed, according to standards set out in the bill. The burden of proof is on the alien to prove eligibility. (Section 601(i))

Biometric Card. Z visa holders will be given a biometric card. (Section 601(j)).

Renewal. Z visa holders must prove continuing employment (if older than 16) (Section 601(m)), and if older than 18, take the naturalization exam (civics and English) at the first renewal. Before the second renewal, the Z visa holder must pass the exam.¹⁵ The application fee will be a maximum of $1500 and the applicant may be required to undergo another background check. (Section 601(k)). They cannot change status to another nonimmigrant category (Section 601(l)).

Permanent Residency. A Z-1 nonimmigrant may adjust status to Lawful Permanent Resident status (i.e., gain a green card) nine years after enactment (after the family backlog under Title V is eliminated). The Z visa population will get green cards over a five-year distribution period. The Z applicant must apply abroad, satisfy the merit requirements in the points schedule set forth in Title V, pay a penalty of $4,000, and meet the English-language requirements (Section 602(a)(1). Derivative family members may adjust their status (i.e., get a green card without leaving the U.S.) if the principal Z-1 alien has been given a green card. (Section 602(a)(2)).

The Line. Z visa holders cannot adjust their status before 30 days after the last application in the current line as of May 2005 is adjudicated (Section 602(a)(5)). (Note: apparently all Z visa holders must "adjust status" rather than receive an immigrant visa.)

Taxes. A Z visa holder cannot adjust to permanent residency (and path to citizenship) unless he or she proves payment of all tax liability during Z visa status. (Section 602(a)(8))

Judicial and Administrative Review. A visa applicant will have only one level of administrative review, before a case can move to an Article III court. There will be no review of late filings. Standards of review are set out. (Section 603).

Confidentiality of Application Information. The information in a Z visa application is confidential but could be disclosed under certain conditions (e.g., in certain deportation and criminal cases). Aliens denied Z visas on criminal or security grounds have no confidentiality. DHS can audit applications for fraud, and revoke benefits secured through fraud, and refer for prosecution. (Sections 604, 605)

Social Security Enumeration/Credits. DHS will enumerate Z visa holders with Social Security numbers. No Z visa holder, who was enumerated after 2007, will be credited for Social Security quarters, except in the case of certain survivor benefits (Section 606, 607). No credits will be given for past illegal work under a fake or stolen Social Security number but would for illegal work under a valid Social Security number.

DREAM ACT. Z visa holders (or those who qualify) under the age of 30 who were brought to the United States out of their own control while under age 16 are eligible to receive their green card after three years rather than eight, if the alien has completed two years at an institution of higher learning. Eligible aliens under this subtitle can delay their fines until age 24 (Subtitle B).

TITLE VII -- TEMPORARY WORKERS, AND H-2C VISAS

Armed Forces Waiver. Members of the Armed Forces applying for naturalization overseas will have their fingerprints submitted through the Department of Defense. (Section 701)

English. English is declared the common language of the United States. (Section 702)

Elderly Immigrants. Aliens over age 75 do not have to take the English naturalization exam to become naturalized if they understand and take the Oath of Allegiance. (Section 705)

Office of Citizenship. This office will be authorized $100 million to carry out its mission of patriotic assimilation of the prospective naturalized. (Section 707)

English Learning. The Department of Education is authorized with what funds it needs to teach English on a wide scale on a non-reimbursable basis.

RPC Glossary of Terms for Reading This Legislative Notice

(Note: These terms are working definitions for purposes of reading this Notice, and are not necessarily legal definitions.)

Adjustment of status -- means obtaining a green card without leaving the United States (currently available only to legal nonimmigrant aliens.).

Green card -- a green card holder is someone who has permanent residency in the United States and has a path to citizenship (which he or she could normally be eligible for five years after gaining a green card, but three years after for someone married to a U.S. citizen; other requirements apply, including passing a naturalization exam). Green card holders, under current law, cannot vote in a federal election (because no state allows them to vote), but they may contribute money to a federal campaign to the same extent that U.S. citizens may, and may be able to vote in some local elections (depending on local law).

Immigrant -- an alien who intends to permanently reside in the United States (in statutory language, this definition only extends to those entering or in the U.S. legally).

INA -- refers to the Immigration & Nationality Act, Title 8 of U.S. Code.

Inadmissible -- under INA § 212(a) aliens are not allowed entry and cannot get a visa for various reasons, including if the alien has a contagious disease, is a terrorist, is a World War II-era Nazi, is a child abductor, is a former U.S. citizen who renounced to avoid tax liability, or is an unlawful voter. Some inadmissabilities only apply to those seeking permanent residence in the U.S. while others apply to all aliens.

Nonimmigrant -- an alien who is legally in the United States under any of a number of specified categories that allow for temporary stay in the United States (including entry for tourism, business, certain types of labor, journalism, being a crew member, investment, trade, studies, being a diplomat, cultural exchange, being a fiancé, to perform as a professional athlete, or for a religious vocation).

Please see attached document prepared by the Administration regarding the distribution of green cards under timelines and quotas set by the substitute.

                       TIMELINE AFTER ENACTMENT

² More specifically, this refers to the situation where an applicant for entry at a land border is sent for a secondary inspection, but rather than have the car searched, the alien takes off in the car, sometimes damaging infrastructure and injuring people at the port of entry.

³ Last year's Senate-passed immigration bill, S. 2611, would have increased the number of Immigration & Customs Enforcement agents by 2000 per year for four years. The bill mandates each State to have at least 40 immigration enforcement agents, and at least 15 service personnel (the Secretary of Homeland Security may waive this requirement for states with smaller populations).

⁴ It also creates a new crime for: (1) trafficking in passports and punishing those who unlawfully produce, issue, transfer, forge, or falsely make passports, as well as those who transact in passports they know to be forged or counterfeited, and those who prepare, submit, or mail applications for passports that they know include a false statement; (2) completing, signing, or submitting a passport application knowing that it contains a false statement or representation; (3) knowingly and without lawful authority producing or issuing a passport for or to any person not owing allegiance to the United States; (4) knowingly and without lawful authority transferring a passport to a person for use when such person is not the person for whom the passport was issued or designed; (5) knowingly using a passport to enter or attempt to enter the country, knowing that the passport is forged or counterfeited; (6) knowingly using a passport to defraud an agency of the United States or a State, knowing that the passport is forged or counterfeited; (7) knowingly executing a scheme to defraud any person in connection with any matter arising under the immigration laws or that the offender claims arises under the immigration laws; (8) knowingly using any immigration document issued or designed for use by another; (9) trafficking in immigration documents; (10) knowingly and without lawful authority, producing, obtaining, or possessing various papers, seals, symbols, or other materials used to make immigration documents; (11) entering into multiple marriages to evade immigration law; and, (12) arranging, supporting, or facilitating such multiple marriages. The bill renders inadmissible and removable any alien convicted of a passport or visa violation under Chapter 75 of title 18.

⁵ See Immigration & Nationality Act (INA) section 244.

⁶ Essentially, this authorizes Diplomatic Security (DS), the State Department's law enforcement bureau, to investigate internal corruption in the issuance of visas and passports, and to conduct those investigations at U.S. embassies and consulates abroad (there are Inspector General reports on this). Since the laws surrounding diplomatic compounds and residences can make it difficult to obtain local law enforcement assistance, and jurisdictional matters can be confused, this provision is required to clarify that authority and jurisdiction.

⁷ See GAO report No. GAO-06-735.

⁸ A U.S. visa is currently issued on counterfeit-resistant foil and affixed to a foreign passport; it contains a picture of the visa holder and other identifying information; fingerprints for non-immigrants are taken at the time of application and provided to the U.S. VISIT system managed by DHS (for comparison at the port of entry).

⁹ Note: this does not include the current Employment Authorization Card (EAC) that DHS issues to work authorized aliens, but one that has been criticized for being too easy to counterfeit and too susceptible to corrupt issuances.

¹⁰ Note: under current law, an employer can accept a host of documents that the Government Accountability Office (GAO) has concluded are easily counterfeited or do not actually verify work authorization or identity.

¹¹ Note that the responsibilities of the Social Security Administration (SSA) are specified in Section 308, and generally involve providing DHS access to its database of Social Security numbers and matching names. SSA currently enumerates almost all persons born in the United States at the time of birth, and enumerates immigrants at the time they enter the country for permanent residency. Social Security numbers can be issued to aliens legally in the U.S., but if they are not work authorized, the card will indicate this (starting in 2001).

¹² Currently these letters contain a statement to the employer that the letter cannot be the basis for a dismissal. Since a "no match" of W-2 form information with Social Security records could be the result of a typographical error, or of identity theft, it is reasonable to allow the subject of a no-match letter to be given a reasonable period to resolve issues.

¹³ 42 U.S.C. 410(a)(19).

¹⁴ Some H-1B visas are not subject to a cap, and others have certain conditions on them.

¹⁵ For more information about the exam and its recent redesign process, go to: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f6 14176543f6d1a/?vgnextoid=dcf5e1df53b2f010 VgnVCM1000000ecd190aRCRD