(including Judiciary Committee Amendments)

Transcription

1 Section by Section Summary of the Border Security, Economic Opportunity and Immigration Modernization Act (including Judiciary Committee Amendments) By Greg Siskind Siskind Susser, PC Immigration Lawyers

2 Section by Section Summary of the Border Security, Economic Opportunity and Immigration Modernization Act Title I Border Security By Greg Siskind Siskind Susser, PC Immigration Lawyers (gsiskind@visalaw.com) Preliminary Sections Section 1. Short Title; Table of Contents The bill is called Border Security, Economic Opportunity and Immigration Modernization Act. Section 2. Statement of Congressional Findings. States that Congress recognizes that the bill is intended to protect American sovereignty and establish a coherent and just system for integrating those who seek to join American society. Section 3. Effectiveness Date Triggers. Defines terms including - Commission the Southern Border Security Commission - Comprehensive Southern Border Security Strategy the strategy set by DHS to achieve and maintain an effectiveness rate of 90% or higher in all high risk border sectors. - Effective control persistent surveillance and an effectiveness rate of 90%+ - Effectiveness Rate for a border sector, the percentage calculated by dividing the number of apprehensions and turn backs by the total number of illegal entries in a fiscal year. - High Risk Border Sector a border sector in which more than 30,000 people were apprended in the most recent fiscal year. - Southern border the US-Mexico border - Southern Border Finance Strategy strategy set by DHS to identify where fencing should be deployed. Triggers 1. No processing of RPI applications until DHS has submitted to Congress the Notice of Commencement of implementation of the Comprehensive Southern Border Security Strategy and the Southern Border Fencing Strategy under Section 5 of this bill. 2. No adjustment of status of RPI immigrants may commence (except AgJobs and DREAM Act beneficiaries) until DHS, after consulting with the Comptroller General of the United States, submits to the President and Congress a written certification that a. The Comprehensive Southern Security Strategy has been submitted to Congress and is substantially deployed and substantially operational;

3 b. The Southern Border Fencing Strategy has been submitted to Congress, implemented and substantially completed c. DHS has rolled out E-Verify to all employers d. The exit system at air and sea ports of entry is operational. Adjustments may be permitted if litigation prevents any of these conditions from being met, the implementation of the triggers is found unconstitutional by the Supreme Court or ten years have elapsed since the date of enactment of the bill. Note that the new merit-based points categories don t allow for applications by RPI beneficiaries until after ten years. The DHS Secretary is authorized to waive all legal requirements to ensure the requirements are met. Limits review of this bill to US district courts and only constitutional aspects of the bill can be challenged. DHS actions must be challenged within 60 days after the date of the contested action or decision. Only the Supreme Court can review such a decision. Leahy 4 Triggers on border security expanded to all border sectors, not just high risk sectors. [Grassley 1] Section 3(a) of the preliminary section of the bill is amended to redefine Southern Border Fencing Strategy by expanding it to include infrastructure and technology, including at ports of entry. Right now the fencing strategy only discusses fencing. Regarding the provision waiving the legal requirements for making improvements at the border, the requirement that DHS provide a notice in the Federal Register is expanded to require DHS to provide an explanation for the determination. Also the waiver in this section expires when DHS certifies that the fencing strategy is substantially completed. [Leahy 4] Section 4. Southern Border Security Commission. If effective control of the border is not achieved in five years, a Southern Border Security Commission will be set up. It will be comprised of two members appointed by the President, two by the President pro tempore of the Senate (one from each party), two by the Speaker of the House (one from each party), four members who are either the governor (or an appointee of the governor) of the four border states. The Commission shall make recommendations to the President, DHS and Congress on policies to achieve the border security goals in the triggers. Within six months, the Commission has to submit its report.

4 Section 5. Comprehensive Southern Border Security Strategy and Southern Border Fencing Strategy. Within 180 days of passage of the bill, DHS shall prepare a strategy called the Comprehensive Southern Border Security Strategy for maintaining effective control between the ports of entry in all high risk border sectors along the Southern border. The strategy shall explain how the enforcement goals outlined above will be met. DHS will report semiannually on the implementation of the strategy. A Southern Border Fencing Strategy must be established within 180 days of passage of the bill. The strategy will describe where fencing, infrastructure and technology should be deployed on the border. Leahy 4 Adds the Senate Judiciary Committee and the House Judiciary Committee to the list of bodies that need to get copied on the Comprehensive Southern Border Security Strategy and reports on the strategy required in Section 5. [Grassley 2] Section 5(b) of the preliminary section is amended to require DHS to consult with the Secretary of the Interior, the Secretary of Agriculture, States, local governments, Indian tribes, and property owners in the US to minimize the impact on the environment, culture, commerce and quality of life for the communities near the fencing. [Leahy 4] Section 6. Comprehensive Immigration Reform Trust Fund. $6.5 billion will be transferred to a new Treasury Department fund to finance the implementation of this law. $100,000,000,000 will be appropriated for start up costs including funding USCIS processing of applications. Fees from various parts of the bill s new programs will go in to this fund. $3 billion will go to implementing the Comprehensive Southern Border Security Strategy. $2 billion will go to activities called for by the Commission described in Section 4. $1.5 billion will go for fencing. The first $7.5 billion collected from the new fees provided in the bill will go for deficit reduction. Grassley 5 Amends Section 6 of the preliminary section. Requires an annual audit of the Comprehensive Immigration Reform Trust Fund provided for in this section. The audit is to be conducted jointly by the

5 Chief Financial Officer of DHS and the Inspector General of DHS. The audit must be submitted to Congress and made available to the public. [Grassley 5] Leahy 4 Section 6(a)(3)(A) of the preliminary section is modified to allow the allocated money for fencing to be spent on infrastructure and technology along with fencing. [Leahy 4] Section 7. Reference to the Immigration and Nationality Act. Unless otherwise, noted, references to amendments in this bill pertain to the Immigration and Nationality Act, Secretary means the DHS Secretary and Department means DHS. Grassley 24 Section 9. Grant Accountability Adds a new Section 9 to the bill s preliminary section entitled Grant Accountability. The new section start by defining the following terms: - Awarding entities - Nonprofit organization - Unresolved audit finding DHS Inspector General or the National Science Foundation Inspector General shall conduct audits of grant recipients under the bill to prevent fraud, abuse and waste by grantees. Grant recipients found to have an unresolved auditing finding are barred from grant funds for two fiscal years beginning in the year after the end of the fiscal year. And priority is given to grant applicants that have not had unresolved audit findings in the three years before submitting an application for a grant. Nonprofits with funds in offshore accounts for the purpose of availing tax are barred from grants. Nonprofits are required to disclose the process for determining compensation of its officers, directors, trustees and keep employees. There is a limit of $25,000 that can be used from grant funds to pay for conferences unless DHS or the NSF provide prior written authorization. The auditors are required to report annually to Congress on their work. [Grassley 24]

6 TITLE I Border Security Section Definitions. The following terms are defined: - Rural, high-trafficked areas (rural areas that provide smuggling routes) - Northern Border (border between US and Canada) - Southern border (full border between US and Mexico) - Southwest border region (area in US within 100 miles of the Southern border) Section Additional US Customs and Border Protection Officers. By September 30, 2017, DHS will hire and train 3,500 new CBP officers. Removes the end date for the Travel Promotion Fund fee of $10. Adds a new $16 border crossing fee. Schumer 1 Amends Section Would permanently fund the advertising fund created to promote US tourism in the Travel Promotion Act of [Schumer 1] Section National Guard Support to Secure The Southern Border. A state governor, with DOD approval, can order a state s National Guard to the border to assist CBP to perform operations as may be needed to secure the Southern border including constructing fencing, increasing mobile surveillance systems, deploying drones, deploying radio communications, constructing checkpoints, and providing assistance to CBP in rural, high-trafficked areas. Section Enhancements of Existing Border Security Operations. CBP shall increase the number of border crossing prosecutions in the Tucson Sector to up to 210 prosecutions per day. CBP shall reimburse state and local law enforcement agencies for any detention costs related to this expansion. Additional judges will be appointed to handle the additional cases. $50 million is provided for this project.

7 FEMA shall enhance readiness on the borders through Operation Stonegarden. DHS shall construct additional Border Patrol stations in the Southwest Border region needed to provide full operational support in rural, high-trafficked areas. DHS shall enhance security of the Southwest Border region by adding permanent bases for the Border Patrol, upgrading existing bases, and ensuring that bases stop individuals from entering the US after crossing the Southern border. Feinstein 7 Amends Section 1104 by creating a competitive grant program to allocate funds to law enforcement agencies for Operation Stonegarden for illegal immigration and drug smuggling prosecutions in the Southwest Border Region.[Feinstein 7] Feinstein 10 Provides for a new grant program to be added to Section 1104 that allows DHS and the Secretary of Transportation, in consultation with the governors of on the Southern and Northern borders, to provide grants to construct transportation and supporting infrastructure improvements at existing and new international border crossings necessary to facilitate safe, secure and efficient cross border movement of people, motor vehicles and cars.[feinstein 10] Feinstein 2 Section 1104 is amended to add a section to provide 8 new federal district judges in the four Southwest Border states. [Feinstein 2] Section Border Security on Certain Federal Land. To achieve effective control of Federal lands, DHS shall authorize CBP personnel with immediate access to Federal lands for security activities including patrols and deploying equipment. DHS may provide training on the natural and cultural resources on the Federal land. DHS must prepare an environmental impact statement but that may not result in a delay in the activities required under this section. But plans can be altered based on the statement. This section doesn t apply to private or state land.

8 Feinstein 11 Amends Section 1105 to bar US Border Patrol from operating unarmed, unmanned aerial vehicles in the San Diego and El Centro Sectors except within 3 miles of the Southern border. This doesn t apply to maritime operations of CBP. [Feinstein 11] Section Equipment and Technology. CBP shall deploy additional surveillance systems and drones in the Southwest Border region in order to have 24 hour coverage. CBP shall deploy new unarmed, unmanned aircraft and helicopters along the Southern border as well as horse patrols. Feinstein 8 Amends Section 1106 by providing for CBP to acquire and deploy watercraft and other equipment related to maritime border-related anti-crime activities. [Feinstein 8] Section Access to Emergency Personnel. DHS will set up a two year grant program to improve emergency communications in the Southwest Border region. This grant will allow individuals to purchase cell phones at his or her residence in order to contact law enforcement to report illegal activities. Funds are to be appropriated for five years to help state and local law enforcement agents purchase P25-compliant radios in order to facilitate communication with Federal authorities. Section Southwest Border Region Prosecution Initiative. Provides for DOJ to reimburse state and local authorities for costs associated with prosecuting federallyinitiated immigration-related criminal cases declined by local offices of US Attorneys. Feinstein 9

9 Amends Section 1108 and expands the provision providing for the reimbursement of state and local law enforcement officials for prosecution and pre-trial detention. It would now reimburse for prosecution, pre-trial services and detention, clerical support, and public defenders services associated with the prosecution. [Feinstein 9] Blumenthal 10 This provision would also amend Section 1108 by barring the reimbursement of state and local governments if there is reason to believe that the individual s underlying apprehension arose from unlawful conduct by a law enforcement official. [Blumenthal 10] Section Interagency Collaboration. DOD will collaborate with DHS to identify technology used by DOD that could be used by CBP to improve security of the Southern border. Section SCAAP Reauthorization. Reauthorizes the State Criminal Alien Assistance Program through Feinstein 1 Replaces Section 1110 and inserts a new language providing for federal payments to state and local law enforcement agencies based on charges of the people arrested as opposed to the convictions obtained (which is what is in the first version of the bill). [Feinstein 1] Section Use of Force. Within 180 days after enactment, DHS shall issue policies governing the use of force by all DHS personnel that require reporting establish procedures for dealing with complaints about force. Section Training for Border Security and Immigration Enforcement Officers.

10 DHS shall ensure CBP, Border Patrol, ICE, US Air and Marine Division and agriculture agents within 100 miles of the Southern border or at any port of entry receive appropriate training in dealing with fraudulent travel documents; civil, constitutional, human and privacy rights; the scope of enforcement authorities; the use of force policies in Section 1111; immigration law; social and cultural sensitivity toward border communities; the impact of border operations on communities; and environmental concerns. Section Department of Homeland Security Border Oversight Task Force. DHS will set up an independent task force to make recommendations regarding immigration and border enforcement strategies to consider the impact on border communities. The task force should also make recommendations on improving collaboration with the communities and evaluate how agencies can protect the rights of border residents. The task force will be comprised of local officials, advocates, community members and Border Patrol representatives. Flake 1 Amends Section 1113 by including private land owners on the DHS Border Oversight Task Force. [Flake 1] Feinstein 6 Amends Section 1113 by requiring within 90 days of enactment of the bill that DHS establish standards to ensure that children in CBP custody are afforded adequate health care, nutrition, clothing, bedding, hygiene and access to phone calls to family members. [Feinstein 6] Section Immigration Ombudsman. The CIS Ombudsman s duties will be expanded to cover CBP and ICE as well as USCIS. Sessions 36 Amends Section Expands Ombudsman authority by allowing the agency go provide assistance to victims of crimes committed by aliens or violence near the US border. [Sessions 36] Hirono 24

11 Replaces Section 1114 regarding the Ombudsman. Requires the Ombudsman have a background in immigration law as well as civil and human rights law. Lists functions of the Ombudsman: - Deal with complaints regarding DHS - Conduct inspections of facilities in the immigration system - Identify areas where individuals and employers have problems dealing with DHS - To determine if an individual or employer is suffering or about to suffer a threat as a result of the way immigration laws are administered and to intervene as necessary. - To propose changes in administrative practices at DHS to address problems - To make recommendations regarding immigration and enforcement policies at CBP, ICE and USCIS - To monitor the compliance of CBP, ICE and ICE with law, regulations and policy. The Ombudsman shall have the authority to request the Inspector General of DHS to conduct inspections, investigations and audits. CBP, ICE and USCIS shall establish procedures to provide formal responses to recommendations submitted by the Ombudsman. The Ombudsman shall provide an annual report to the Judiciary Committees of the Senate and House. [Hirono 24] Section Reports. DHS will submit to Congress a report detailing the effectiveness rate for each Border Patrol sector along the Northern and Southern borders, the number of miles under persistent surveillance, the monthly wait times per passenger to cross the Southern border and the allocations at each port of entry on the Southern border. Grassley 2

12 Section 1115 amended to add Senate Judiciary Committee and the House Judiciary Committee to copy list for DHS report on effectiveness of border security measures and DOD report on interagency cooperation in various border security operations. [Grassley 2] Hirono 23 Adds a new Section 1115 entitled Protection of Family Values in Apprehension. Defines the following terms: - apprehended individual - border - child - cooperating entity - migration deterrence program DHS and cooperating entities shall for each apprehended individual as soon as practicable after an individual is apprehended inquire as to whether the person is a parent, legal guardian or primary caregiver of a child or traveling with a spouse or child and ascertain whether repatriation of the apprehended individual present any humanitarian concern related to the individual s physical safety. DHS shall ensure that with respect to a decision related to the repatriation or referral for prosecution of the apprehended individual, due consideration is given to the best interest of the child, to family unity and other public interest factors including humanitarian concerns related to the apprehended individual s physical safety. Requires DHS to develop and provide training on this subject. DHS has to report to Congress within a year on the impact of migration deterrence programs on parents, guardians, primary caregivers of a child, individuals traveling with a spouse or child and individuals who present humanitarian concerns related to the apprehended individual s physical safety. Rules will be implemented within 120 days of the enactment of the passage of the bill. [Hirono 23] Section Severability and Delegation.

13 If a court rules any part of this bill is unconstitutional, the remainder of the law will not be affected. DHS may delegate any authority in the bill to the Secretary of Agriculture, DOJ, DOD, HHS, DOS or SSA. Leahy 4 Section Prohibition on Land Border Crossing Fees. DHS may not impose a border crossing fee at the Southern or Northern border or conduct a study relating to the imposition of such a fee. [Leahy #1] Includes a new Section 1117 entitled Rule of Construction stating that nothing may be construed to authorize the deployment, procurement or construction of fencing along the Northern border. [Leahy 4] Coons 2 At the end of Title I, a new Section is added entitled Limitations on Dangerous Deportation Practices. Within a year and every 180 days thereafter, DHS must submit written certification to Congress that DHS has only deported or removed migrants through an entry or exit point on the Southern border during daylight hours. Exceptions are provided if there is a compelling government interest, there is an applicable local arrangement for repatriating Mexican nationals or the migrant is not an unaccompanied minor and the migrant is deported through the same point as the place where the person was apprehended or the person agrees to be deported in such manner after being notified of the intended manner of deportation or removal. Requires DHS to submit a study within a year of the Alien Transfer Exit Program. Requires the return on nonperishable belongings to the migrant that are confiscated before repatriation to the extent practicable. [Coons 2] Section by Section Summary of the Border Security, Economic Opportunity and Immigration Modernization Act The Registered Provisional Immigrants and DREAM Sections By Greg Siskind Siskind Susser, PC Immigration Lawyers (gsiskind@visalaw.com) TITLE II Immigrant Visas Subtitle A Registration and Adjustment of Registered Provisional Immigrants Section Registered Provisional Immigrant Status. Creates a new Section 245B of the Immigration and Nationality Act. Section 245B(a) - After conducting national security and law enforcement clearances, DHS may grant registered provisional immigrant status to an alien who has paid the required fee and penalty, who meets the eligibility requirements and submits an application in a timely manner (stated later).

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

15 Application process. 1. Applicants apply by submitting an application during the application period. DHS will accept applications for one year beginning on the date they publish rules in the Federal Register. DHS can extend that period for up to 18 more months. 2. All back taxes must be paid before an application can be filed. Applicants can demonstrate compliance by submitting documents determined by the Treasury Department 3. DHS will provide a single application process for aliens, their spouses and their children. 4. Interviews may be required. For aliens apprehended before or during the application period who appear prima facie eligible for RPI status, DHS shall provide the person a reasonable opportunity to file an application during the application period and may not remove the person until a final administrative determination is made on the RPI application. Eligibility for RPI status after departure. People who departed subject to an order of exclusion, deportation or removal who are outside the US or who reentered after 12/31/2011 without receiving DHS s consent to reapply for admission are not eligible to apply for RPI status. DHS may waive this bar, however, if the person is the spouse or child of a US citizen or green card holder or is the parent of a child who is a citizen or permanent resident and the person can meet the physical presence requirements. Also, the waiver is available if the person is outside the US, was 16 or older on the date on which the alien applied for RPI status and was present in the US for at least three years during the six year period immediately prior to enactment of the new law. Suspension of Removal During Application Period. An RPI may not be detained or removed unless DHS finds that the person is or has become ineligible for RPI status or the status has been revoked. Beginning on the date of enactment, if DHS determines that a person is in removal, deportation, or exclusion proceedings before an immigration judge and is prima facie eligible for RPI, DHS will give the person an opportunity to file for RPI status and upon a joint motion by DHS and the alien, the judge shall Terminate proceedings and give the person a chance to apply for RPI status. If EOIR discovers a person in proceedings is eligible, they shall notify DHS and if DHS doesn t dispute within 7 days after notification, EOIR, upon consent of the alien, shall terminate proceedings and allow the person to apply for RPI status. If a person is otherwise eligible for RPI status and has been order excluded, deported or removed or ordered to depart voluntarily, the person may apply for RPI status and if the application is granted, the person may file a motion to reopen the order and the motion will be granted unless the person is otherwise ineligible. From the point where a person files for RPI status and the date DHS makes a decision, the person may receive advance parole status to reenter the US if urgent humanitarian circumstances compel travel.

16 The person may not be removed during that period unless DHS makes a prima facie determination that the person is ineligible for RPI status. A pending RPI applicant shall not be considered unlawfully present and not considered an unauthorized alien. RPIs and RPI applicants granted advance parole are not barred from readmission. DJS will provide applicants for RPI status with a receipt as soon as practical after filing. Employers who learn an employee has filed for RPI status or will apply for RPI status once the application period opens is not in violation of IRCA if the employer continues to employer the person during the pending period. Security and Law Enforcement Clearances. DHS may not grant RPI status unless the applicant submits biometric and biographic data in accordance with procedures set by DHS. The data will be used to conduct a background check. That check must be completed before RPI status will be granted. The initial period of RPI status will be six years unless revoked before that. Additional six year extensions are permitted if the person remains eligible for RPI status. RPI status may not be extended unless the person during the period of RPI status the person was regularly employed as an RPI and has no unemployment periods greater than 60 days or is likely to become a public charge or the person can show income or resources of at least 100% of the Federal poverty level throughout the period of admission. Applicants may not be granted extensions of RPI status unless they have paid taxes during the RPI period. People over 16 applying for RPI status or an extension of RPI status shall pay a fee to DHS. A maximum fee per family may be established. Certain classes of individuals may be exempted from the fees. A penalty of $1000 shall also be assessed on applicants over the age of 21. $500 will be due at the time of the initial application and the remaining $500 shall be paid in periodic installments that shall be completed before an extension is granted. An application will be denied if the person fails to submit requested initial evidence (including biometrics) or any requested additional evidence by the date DHS determines. Denied applicants can file an amended petition if the initial application was filed during the application period and contained all the required information and fees that were missing from the initial application. DHS will provide an RPI document to each approved applicant. The document will be machine-readable and tamper resistant and have a digitized photograph. The card will be valid for travel and employment. The card will be valid for up to three years.

17 Unless DHS determines that a DACA recipient has engaged in conduct making the person ineligible for RPI status, DHS may grant RPI status after new background clearances are conducted. RPI recipients are authorized to work and travel without having to obtain a visa if the person has an unexpired RPI document (described above) or a temporary travel document issued to the RPI if the RPI card was lost, stolen or destroyed. RPI s may not leave for more than 180 days unless the failure to return within 180 days was due to extenuating circumstances beyond the person s control. People granted RPI status shall be considered to have been admitted and lawfully present in the US in such status as of the date the application was filed. A person granted RPI is lawfully admitted to the US and may not be classified as a non-immigrant as an alien who has been lawfully admitted for permanent resident. DHS may revoke the status of an RPI at any time after providing notice to the person after all applicable review procedures have been conducted if the person no longer is eligible for RPI status, knowingly used RPI documentation unlawfully or fraudulently, or was absent from the US for more than 180 days (with an extenuating circumstances exception). DHS may request additional evidence or an interview before revoking. RPIs are not eligible for means-tested public benefits and various Obamacare benefits. SSA shall set up a system to allow for the assignment of Social Security numbers and issue SS cards to each person granted RPI status. DHS shall broadly disseminate in various languages information on RPI status. RPIs are eligible to enlist in the Armed Forces. Coons 10 Amends Section 2101 on RPIs. An individual who is authorized to be employed in the United States may not be denied a professional, commercial, or business license on the basis of his or her immigration status. Graham 3

18 Amends Section DHS, in consultation with the Secretary of State and other interagency partners, shall conduct an additional security screening upon determining that an alien or his or her dependent is or was a citizen or long-term resident of a region or country known to pose a threat or that contains groups that pose a threat to the national security of the US. Hirono 12 Amends Section Permits the entire penalty required for initial RPI status to be paid in periodic installments that shall be completed before the alien may be granted an extension of status. Previous version only allowed half of the required amount to be paid in installments. Hirono 20 Amends Section On the RPI application, DHS shall collect information DHS determines to be necessary and appropriate including an explanation of how, when and where the alien entered the US, the country the alien resided in before entering the US and other demographic information specified by DHS. Extends privacy protections to data on the form. Cornyn 4 Changes Section 2101 s provision allowing certain people previously removed to get RPI status if they get a waiver. Adds a new section to give notice to crime victims if a waiver is granted. If the original prosecuting agency wants to cooperate with DHS, DHS will make an effort to identify the victim and give the victim written notice that the alien is being considered for a waiver. The victim will be given the opportunity to offer an opinion regarding the granting of the waiver. The amendment also states that the determination on the waiver may not be made solely based on the victim s consultation. Flake 4 Amends Section After the ban on RPIs receiving federal means-tested public benefits a new requirement is added for HHS to conduct regular audits to ensure that RPIs are not fraudulently receiving any public benefits. And anyone convicted of fraudulently claiming such a benefit shall have their RPI status revoked. Flake 3

19 Amends Section Requires RPIs to go through an additional background check at the time of renewal of the RPI status. Allows RPI s spouse/children to get derivative status if they were physically present before 12/31/2012 except from brief, casual, and innocent absences. Also applies to blue card dependents. And applies to green card applications after ten years for the RPIs. Section Adjustment of Status of Registered Provisional Immigrants. A new INA Section 245C is granted relating to the adjustment of status of RPIs. DHS may adjust an RPI to permanent residency if the requirements of this section are met. 1. RPI status was granted. 2. The applicant proves that he or she was not continuously absent from the US for more than 180 days (with an extenuating circumstances exception). 3. None of the grounds of inadmissibility applicable to RPIs is applicable. 4. If DHS is in the process of revoking the RPI status, DHS may not approve adjustment. 5. No taxes are owing. 6. The applicant was regularly employed throughout the RPI period. The 60 day, public charge or average income exceptions noted above apply here as well. The applicant is responsible for providing evidence of employment and SS, IRS and local/state tax records. Additional records like bank records, business records, employer records, union records, affidavits and school records may be submitted. DHS may designate additional documents that can be submitted. Employment can be with multiple employers. 7. Full-time attendance at a high school, university, education, literacy or career training program or GED program can substitute for employment. 8. Exceptions to the employment/education requirement available based on being under 21 on the date the first extension or RPI status is submitted, being over 60 when filing for an extension of RPI status, or over 65 when filing for adjustment of status or the person has a physical or mental disability or was pregnant. Dependents are also not subject to the requirement. There is an exception as well for people on medical leave, maternity leave, or other leave authorized by law or was the primary caretaker of a child or person who requires supervision or is unable to care for himself or herself or was unable to work due to circumstances outside the applicant s control. Finally, there is a general waiver available for those who can show an extreme hardship to himself or a spouse, parent or child who is a US citizen or permanent resident. 9. Applicants must meet the English requirements contained in Section 312 of the naturalization rules of the INA or is enrolled in an acceptable English instructional program. Satisfying the Section 312 requirement for adjustment purposes will cover the person when they apply for

20 naturalization. An exception is available if a person is unable to comply because of a physical or developmental disability or mental impairment. DHS may waive the requirement for those over 70 years of age when the application is filed. 10. Applicants must submit proof of having registered for Selective Service (if required on or before the date that RPI status is approved). 11. Applications may not be approved until after DHS certifies that immigrant visas filed under the family and employment categories before the enactment of the bill have been approved. 12. DHS may interview RPI-based adjustment applicants. 13. No RPI may adjust until new background checks are cleared. 14. Fees may be charged (not clear if they would be different than other adjustment applicants). A maximum fee per family may be established and exempt individuals in defined classes. 15. Applicants over 21 on the date the bill was introduced in the Senate (4/17/2013) shall pay a $1000 penalty. The fee may be paid in installments in a process established by DHS. 16. APPLICANTS MAY ONLY ADJUST UNDER SECTION 2302 OF THE BILL. Naturalization Three year post-green card residency requirement for people lawfully present in the US and eligible for work authorization for not less than ten years before becoming a lawful permanent resident. Must have been in US for at least 50% of the three year period and 90 days in the state. This seemingly benefits all long term residents including people waiting a long time for green cards because of backlogs. Blumenthal 12 Amends Section The bar on applying for naturalization while an RPI is amended. An alien who has served in the armed forces for at least one year and has been discharged honorably may be naturalized. Section The DREAM Act. Adds a new Section 245D to the INA to cover DREAMers. Definitions are included for the following terms - Institution of Higher Education based on the Higher Education Act of 65 - Secretary - DHS Secretary

21 - Uniformed Services Based on Section 101(a)(5) of Title 10 of the US Code DHS may adjust status of RPIs to green cards if - The person has been an RPI for at least 5 years - Was younger than 16 on the date the person entered the US - Earned a high school diploma, a commensurate alternative award from a public or private high school or secondary school or obtained a GED certificate in the US - Has acquired a degree from an institution of higher education or has completed at least 2 years, in good standing, in a program for a bachelor s degree or higher degree in the US or has served in the Uniformed Services for at least 4 years and, if discharged, received an honorable discharge - Has provided a list of each secondary school that the applicant has attended in the US DHS may adjust people not meeting the higher education/uniformed Services requirement if the applicant can demonstrate compelling circumstances. Must meet English requirements applicable in naturalization cases unless the person has physical or developmental disabilities or mental impairment. Must submit biometric and biographic data and complete a background check. DHS may develop streamlined procedures for DACA recipients. DREAMers will be considered the same as permanent residents during their RPI period for purposes of qualifying for naturalization. So they should be able to file for naturalization as soon as they receive their green cards. NO GREEN CARD CAPS FOR ANY RPI-BASED GREEN CARD APPLICANTS (EITHER DREAM (245D) OR REGULAR (245C)). Repeals the IIRAIRA section limiting states from granting in state tuition to out of status immigrants. That repeal is retroactive to the date of the original IIRAIRA enactment date. Hirono 21 Amends Section RPIs who entered the US before 16 and aliens granted blue card status shall be eligible for certain student aide benefits including federal student loans and work study.

22 Section Additional Requirements. Adds a new Section 245E to the Immigration and Nationality Act. Adds privacy protections for information provided as part of an RPI or related adjustment application. DHS can share information with law enforcement, intelligence and national security agencies as well as agencies with DHS if part of a felony or national security investigation or prosecution or to a coroner. Employers are insulated from liability for past employment of someone without status if they provide employment records necessary for someone to meet the RPI requirements. The protection does not apply if the employment records are deemed to be fraudulent. An appeals process will be available for 245B, 245C, 245D and 245F applicants. Only one appeal may be filed per application. Unlawful presence will not accumulate during an appeal period. Cases may be appealed to a US District Court. Section Criminal Penalty Persons who misuse information provided in an RPI application are subject to a $10,000 penalty. Section Grant Programs to Assist Eligible Applicants. USCIS will set up a program to award grants to nonprofit organizations to assist RPI and related adjustment applicants. Up to $50,000,000 will be available for this grant program. Feinstein 13 Section 2106 modification. Extends the grant program applicable to supporting RPI adjustments to blue card adjustments. Section Conforming Amendments to the Social Security Act. RPI and related green card recipients may correct their Social Security records. Also states that a compelling reason for a state not to file a petition to terminate parental rights is the removal of a parent from the US or the involvement of the parent in an immigration proceeding unless the parent is unfit or unwilling to be a parent to the child.

23 States should consider giving preference to an adult relative over a nonrelated caregiver when a parent is removed from the country and should coordinate with DHS to ensure that parents who wish for their child to accompany them are given adequate time and assistance to obtain a passport and visa and to collect all vital records such as birth certificate, health and educational records and other information. Section Government Contracting and Acquisition of Real Property Interest. Gives DHS broad authority to hire the necessary personnel and acquire the necessary real estate to meet the requirements of this section. Section Long-Term Legal Residents of the Commonwealth of the Northern Mariana Islands Creates a new CNMI-only green card category for long term residents of the Commonwealth. Section Rulemaking Within a year of enactment of the bill, DHS, DOJ and DOS shall issue interim final regulations to implement this section of the bill which will take effect immediately upon publication in the Federal Register.

24 Section by Section Summary of the Border Security, Economic Opportunity and Immigration Modernization Act Title II, part 3 AgJobs By Greg Siskind Siskind Susser, PC Immigration Lawyers (gsiskind@visalaw.com) SUBTITLE B Agricultural Worker Program Section Short Title The bill incorporates the Agricultural Worker Program Act of Section Definitions. The following terms are defined: - Blue Card Status those temporarily admitted under this program - Agricultural Employment - refers to def. in the Migrant and Seasonal Agricultural Worker Protection Act (29 USC 1802) and includes farming, raising of livestock, bees, fur-bearing animals, or poultry and any practices (including forestry or lumbering) performed by a farmer or on a farm. - Child Same as INA s definition of child - Employer includes employers, farm labor contractors and any agricultural associations that employs workers in agricultural employment. - Qualified Designated Entity qualified farm labor organizations designated by DHS and any other organizations DHS designates - Work Day Any day someone is employed 5.75 hours or more in agricultural employment Chapter 1 Program for Earned Status Adjustment of Agricultural Workers Subchapter A Blue Card Status Section Requirements for Blue Card Status. USCIS, after conducting appropriate background checks, may grant blue card status to - anyone who performed agricultural employment in the US for not fewer than 575 hours or 100 work days during the 2 year period ending on 12/31/ Spouses and children of such workers

25 - Submits an application in time (described below) - Is not ineligible for any of the grounds applicable to people in the legalization program described in the new INA Section245B for RPIs other than an H-2A nonimmigrant. Application Blue card applicants and qualifying dependents will file an application during the one year period beginning on the day USCIS publishes regulations in the Federal Register. USCIS has discretion to extend the period for 18 more months. Non-immigrants who have used the H-2A program can apply from outside the US. A single application may be submitted for a family. Interviews may be required. Like the legalization beneficiaries, people apprehended before or during the application period will be given an opportunity to apply if they appear eligible for the program. Blue card holders may not be detained unless DHS determines the person has become ineligible or blue card status has been revoked. People in removal proceedings can get out of them if they appear eligible for blue cards. During the application period, blue card holders may be eligible for advance parole, but only for urgent humanitarian circumstances. Blue card applicants are not considered unlawfully present during the application period and are not considered unauthorized aliens for IRCA purposes (i.e. they can work legally). Applicants will be given a filing receipt. Employers who know their employees are applying for blue cards are not in violation of IRCA if the employer continues to employ the employee. Departure from the US for people ordered deported but who are eligible for blue cards will not render the person ineligible if they have advance parole or a blue card. Applicants must provide biometrics and go through background clearances. Duration of status and extension. Blue cards status will only go out eight years from the date rules are published. Extensions are only permitted unless the applicant passes a new background clearance. Applicants over 16 will pay a processing fee. A maximum fee for a whole family may be instituted. Applications may be denied if the applicants fail to submit requested initial evidence or fail to respond in a timely manner to a request for additional evidence. But an amended application may be submitted with the missing items.

26 Blue card recipients will receive a machine-readable, tamper resistant document with a tamper-resistant document valid for the period of admission. It serves as a work/travel document. Blue card holders may not leave for more than 180 days unless the failure to return within 180 days was due to extenuating circumstances beyond the person s control. DHS may revoke the status of a blue card holder at any time after providing notice to the person after all applicable review procedures have been conducted if the person no longer is eligible for blue card status, knowingly used RPI documentation unlawfully or fraudulently, or was absent from the US for more than 180 days (with an extenuating circumstances exception). DHS may request additional evidence or an interview before revoking. Blue card holders are not eligible for means-tested public benefits and various Obamacare benefits. Blue card holders can convert to RPI status if DHS determines they cannot meet the work requirements applicable to blue card holders. Blue card employers must provide a written report annually on their employment of the blue card holder. A $500 penalty is due if an employer fails to report. DHS must issue a rule within a year of the date of enactment for issuing blue cards. Employment records provided to support a blue card application may not be used against the employer in a civil or criminal prosecution relating to IRCA violations. The protections don t apply if the alien or employer submits fraudulent records. Section Adjustment to Permanent Resident Status. After five years DHS may adjust blue card holders to permanent resident status if the person - During the 8 years beginning on the date of enactment of the bill, performed 100 work days of agricultural employment during each of 5 years; or - During the 5 year beginning on the date of enactment, performed 150 work days during each of 3 years. Spouses and children can qualify as derivatives as long as child was a child on the date the alien was granted blue card status. DHS may credit the applicant with not more than 12 additional months to meet the requirement if they inability to work was based on a medical condition.