Rep. Gutierrez

McCain/ Kennedy

Kolbe/Flake/Gutierrez

The Secure America and Orderly Immigration Act

Section-by-Section Analysis

5/12/05

TITLE I. BORDER SECURITY

Section 101: Definitions

This section defines the following terms: “appropriate congressional committees,” “international border of the United States,” “Secretary,” and “security plan.”

SUBTITLE A—Border Security Strategic Planning

Section 111: National Strategy for Border Security

The Secretary of Homeland Security (Secretary) is directed to develop and implement a National Strategy for Border Security (Strategy) to protect the international borders of the United States. The Strategy shall include: 1) identification and evaluation of points of entry and portions of the border that must be protected from illegal transit; 2) a design for the most appropriate and cost-effective means of defending the border against threats, including advancements in technology, equipment, personnel, and training needed to address security vulnerabilities; 3) risk-based priorities for assuring border security including deadlines for addressing security and enforcement needs; 4) coordination among federal, state, regional, local and tribal authorities to provide for effective border management and security enforcement; and 5) a prioritization of research and development objectives to enhance border security and enforcement needs.

The Strategy shall also include an update of the 2001 Port of Entry Infrastructure Assessment Study that was conducted by the legacy U.S. Customs Service and General Services Administration, along with any other appropriate infrastructure, security plans or reports. The Strategy shall be the governing document for federal security and enforcement efforts related to securing the borders.

Section 112: Reports to Congress

Within one year of enactment, the Secretary shall submit the National Strategy for Border Security to the appropriate congressional committees. Subsequent revisions will be submitted every two years. Each year in conjunction with the submission of the budget to Congress, the Secretary shall submit a progress report on the implementation of the Strategy and each security plan, as well as any recommendations for improvement.

Section 113: Authorization of Appropriations

Appropriations are authorized as may be necessary to carry out the provisions of this title and the amendments made by this title.

SUBTITLE B—Border Infrastructure, Technology Integration and Security Enhancement

The Secretary shall coordinate and develop a plan with federal, state, local and tribal authorities on law enforcement, emergency response, and security-related responsibilities with regard to the international border. The plan shall address when the jurisdiction for providing security changes from one authority to another, areas where jurisdiction is shared among authorities, or when one authority relinquishes jurisdiction to another authority pursuant to a memo of understanding. In developing the plan, the Secretary shall consider methods to coordinate emergency responses, improve data sharing, communications, and technology, and promote research and development relating to the aforementioned.

The Secretary is authorized to establish a Border Security Advisory Committee to provide advice and recommendations to the Secretary on border security and enforcement issues. The members of the Advisory Committee shall be appointed by the Secretary and must include representatives from border states, local law enforcement agencies, community officials, and tribal authorities of border states, and other interested parties, in order to comprise membership that represents a broad cross-section of perspectives.

Section 123: Programs and Reports on the Use of Technologies for Border Security

Within 60 days after enactment, the Secretary shall develop and implement a program to enhance border security through the utilization of aerial surveillance technologies. The Secretary shall consider current and proposed aerial surveillance technologies, assess the feasibility of utilizing such technologies; consult with the Secretary of Defense regarding any equipment or technologies which the Secretary may deploy along the border, and consult with the Administrator of the FAA regarding safety and airspace coordination and regulation.

The program shall utilize a variety of aerial surveillance technologies in a variety of topographies and areas for a range of circumstances, as well as unmanned aerial vehicles. Within one year after implementing the program, the Secretary shall submit to the appropriate congressional committees a report that includes a description of the program and the Secretary's recommendation.

The Secretary shall develop and implement a plan to improve coordination between the Bureau of Immigration and Customs Enforcement and Bureau of Customs and Border Protection and other federal, state, local, and tribal authorities to combat human smuggling. The plan shall consider the interoperability of databases used to prevent human smuggling, adequate and effective personnel training, and means to effectively combat human smuggling. It should also consider effective utilization of visas for victims of trafficking (T-visas) and other crimes, investigatory techniques, equipment, and procedures that prevent, detect, and prosecute international money laundering and other smuggling operations. Further, the plan should consider joint measures to enhance intelligence sharing and cooperation with foreign governments, and other measures that the Secretary considers appropriate. The Secretary shall submit a report to Congress on the plan, including any recommendations for legislative action to improve efforts to combat human smuggling.

Nothing in this title may be construed to provide any state or local entity any additional authority to enforce Federal immigration laws.

The Secretary of State shall establish a framework for better management, communication and coordination between the Governments of North America in order to enhance the security and safety of the United States.

The Secretary of State, in coordination with the Secretary of Homeland Security and the Government of Mexico, is authorized to negotiate an agreement with Mexico to cooperate in the screening of third-country nationals using Mexico as a corridor to the United States and to provide technical support to enhance immigration control along the Mexican border.

The Secretary of State, in coordination with the Secretary of Homeland Security, the Canadian Department of Foreign Affairs, and the Government of Mexico, shall establish a program to assess the needs of the governments of Central America in maintaining security of their borders. The program will also determine the financial and technical support needed to enhance security and provide technical assistance to the governments of Central America to secure the issuance of passports and travel documents in those countries. In addition, the program will encourage the governments of Central America to control alien smuggling and trafficking, and to prevent the use and manufacturing of fraudulent travel documents. It should also encourage the governments of Central American countries to share relevant information with Mexico, Canada and the United States.

The Secretary of Homeland Security, in coordination with the Secretary of State and the appropriate officials of the governments of Central American countries, shall provide robust law enforcement assistance to Central American governments to address migratory issues in order for these governments to dismantle human smuggling organizations and gain tighter control over their borders.

The Secretary of State, in consultation with the Secretary of Homeland Security, the Government of Mexico, appropriate officials of the Governments of Guatemala, Belize, and neighboring contiguous countries, shall establish a program to provide needed equipment, technical assistance, and vehicles to manage, regulate and patrol the international border between Mexico and Guatemala and between Mexico and Belize.

The Secretary of State, in coordination with the Secretary of Homeland Security, the Director of the Federal Bureau of Investigation, the Government of Mexico, and the appropriate officials of the governments of Central American countries, shall work together to monitor the impact of deporting violent criminal aliens, track Central American gang activities, devise a mechanism for notification of deportation, and share information relevant to gang activities.

Section 201: State Criminal Alien Assistance Program Authorization of Appropriations

The State Criminal Alien Assistance Program is reauthorized for Fiscal Years 2005-2011. Such funds shall only be made available for correctional purposes.

Section 202: Reimbursement of States for Indirect Costs Relating to the Incarceration of Illegal Aliens

A new program is established to authorize funding to pay for direct and indirect costs incurred by states for incarcerating illegal aliens. These "indirect costs" include court costs, county attorney costs, detention costs, criminal proceedings expenditures that do no involve going to trial, indigent defense costs, and unsupervised probation costs.

Reimbursements shall be allocated in a manner that gives special consideration for any State that shares a border with Mexico or Canada or for any State that includes an area in which a large number of undocumented aliens reside relative to the general population.

The Immigration and Nationality Act is amended to create a new temporary worker visa (to be known as "H-5A") for persons coming to the U.S. to initially perform labor or services other than those occupations classified as agricultural or high-skilled.

The Secretary of State may grant a temporary H-5A visa to a nonimmigrant worker who demonstrates an eligibility to work and provides the consular officer evidence of employment in the United States. The nonimmigrant worker is required to pass a criminal and security background check, pay a $500 application fee, and undergo a medical examination. The H-5A visa shall initially be authorized for three years, and may be extended for one additional three-year period. The alien must be employed during the alien's stay in the United States. If the alien is unemployed for more than 60 consecutive days, the alien must return to the alien's country of origin or last residence. An alien who returns home due to unemployment may reenter the United States to work using the same visa provided the alien meets the same standards for original entry. The alien may also travel outside of the United States. The three-year period of authorized admission shall not be extended due to the time the alien spends outside the country.

H-5A visa nonimmigrant aliens shall have the same rights as U.S. workers under applicable federal, state, and local labor and employment laws. Workers under this program shall not be treated as independent contractors. Employer shall be responsible for federal, state and local taxes for aliens under this program. Requires registration and certification of foreign labor contractors who recruit workers under this program. Temporary workers and U.S. workers who are harmed by violations of the program can bring a complaint through an administrative process, which includes remedies and a sliding scale of civil penalties. Foreign labor recruiter violations causing extreme financial or physical harm to an individual may also be subject to criminal penalties.

For the first fiscal year of implementation, 400,000 H-5A visas will be made available for use within this program. If the numerical limit is reached within the first quarter, an additional 20% will be made available in the final three quarters of the year. In the subsequent fiscal year, the numerical limitation will increase by 20% of the original allotted amount. If the 400,000 numerical limitation is reached in the second quarter of the first year of the program, an additional 15% will be made available in the final two quarters of the year. In the subsequent fiscal year, the numerical limitation will increase by 15%. If the numerical limitation is reached in the third quarter of the first year of the program, an additional 10% will be made available for the final quarter of the year. In the subsequent fiscal year, the numerical limitation will increase by 10%. If all of the allotted visas are used within the last quarter of the year, the numerical limitation will increase by 10% to allow for economic growth. If the numerical limit is not reached in a given year, and this effect is not in the first year of the program or due to processing backlogs, the limitation will decrease by 10% for the following fiscal year.

Aliens admitted under the H-5A program are eligible for adjustment of status through employer-based petitions or, after they have accumulated four years of work within the United States, through self-petition. Self-petitioners must demonstrate basic knowledge of English and U.S. civics. Aliens adjusting under this section are subject to security background checks and employment based numerical limitations.

A Task Force is established to study the Essential Worker Visa Program and make recommendations to Congress. The Task Force will be comprised of 10 persons who will hold a variety of pertinent areas of expertise. The members shall be appointed by the President and leadership of both Houses of Congress and no one party may constitute a majority of the membership. No later than two years after implementation of the program, the Task Force will submit a report to Congress evaluating a variety of aspects of the program including its development and implementation, the criteria for admission of the temporary worker, the formula for determining the yearly numerical limitation, and its impact on immigration, the U.S. workforce and U.S. businesses. A final report will be submitted no later than four years after the submission of the initial report.

The Secretary of Labor will direct the modification of America's Job Bank to incorporate essential worker employment opportunities available to United States workers and nonimmigrant workers.

Appropriations are authorized as may be necessary to carry out this title for each fiscal year beginning with the year of the enactment through seven years after implementation of this title.

No later than six months after the date of enactment of this Act, all new visas issued by the Secretary of State and immigration-related documents issued by the Secretary of Homeland Security shall be biometric, machine-readable and tamper-resistant.

The Commissioner of Social Security, in coordination with the Secretary of Homeland Security, shall establish an Employment Eligibility Conformation System (System) to allow employers to verify an employee's identity and employment authorization. The new System, which will gradually replace the existing I-9 system, will use machine-readable documents that contain encrypted electronic information to verify employment eligibility within one working day after the initial inquiry. In cases of nonconfirmation, the individual seeking employment will have 10 working days to provide additional information to contest the tentative nonconfirmation through a secondary verification process. As a safeguard against erroneous information, individuals will be able to view their records in the system. The Commissioner will provide a process by which individuals may correct false information.

The system will also provide consular offices abroad verification of evidence of employment for an individual seeking a nonimmigrant visa under the H-5A program. The Commissioner shall prescribe by regulation a system to verify annually the employment eligibility of each individual described in this section.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 would be amended to make technical corrections and provide for the collection of biometric machine-readable information from an alien's visa or immigration-related documents upon arrival and departure from the U.S. to determine the alien's status.

This section provides the Secretary of Labor with new authorities to conduct random audits of employers employing H-2B and H-5A nonimmigrants to ensure that employers are complying with the requirements of the visa programs.

Directs the Secretary of Labor and the Secretary of Homeland Security to establish a process by which H-2B and H-5A nonimmigrants, who file non-frivolous complaints regarding an employer's violation under the program, may seek other appropriate employment under their visa.

Doubles the existing fines for unfair employment practices under the Immigration and Nationality Act.

The Secretary of State is authorized to enter into agreements with foreign governments whose citizens participate in the new temporary worker program in an effort to establish and administer joint labor migration facilitation programs. The Secretary of Homeland Security and the Secretary of Labor would also be authorized to participate in such programs. The programs would be designed to monitor the foreign workers' participation in the temporary worker program, and may address: the facilitation and monitoring of travel between the country of origin and the U.S.; reintegration in the worker's country of origin upon permanent return from the U.S.; and any other appropriate features to promote the worker's strong ties to his/her country of origin. The Secretary of State should place priority on developing programs with foreign governments that have a large number of nationals working as temporary workers.

Section 502: Bilateral Efforts with Mexico to Reduce Migration Pressures and Costs

This section acknowledges the need to assist the Government of Mexico in strengthening its governance and promoting opportunities for its citizens that will help to reduce migration incentives. It also includes a Sense of Congress urging the Government of the United States and the Government of Mexico to enter into a partnership to examine uncompensated and burdensome health care costs incurred by the United States due to legal and illegal immigration by: 1) increasing health care access for poor and underserved populations in Mexico; 2) assisting Mexico in increasing its emergency and trauma healthcare facilities along the border; 3) facilitating the return of workers to Mexico for the treatment of their healthcare needs; and 4) helping the Mexican government to establish a program with the private sector to cover the health care needs of its citizens working in the United States.

This section exempts immediate relatives (spouses, children, and parents of U.S. citizens) from the annual level of 480,000 for family-sponsored immigrant visas. Unused family-sponsored immigrant visas from previous fiscal years are recaptured and made available for family-sponsored immigrant visas for future fiscal years.

The level of employment-based immigrant visas is increased from 140,000 to 290,000 per fiscal year. Unused employment-based immigrant visas from previous fiscal years are recaptured and made available for employment-based immigrant visas for future fiscal years.

The per country limits for family-sponsored and employment-based immigrants are increased from 7 percent to 10 percent (in the case of countries) and from 2 percent to 5 percent (in the case of dependent areas).

The 480,000 ceiling on family-sponsored immigrants is redistributed among existing family preference categories. Ten percent is allocated to the first preference -- unmarried sons and daughters of U.S. citizens. Fifty percent is allocated to the second preference -- spouses and unmarried sons and daughters of lawful permanent residents, of which seventy-seven percent of such visas will be allocated to spouses and children of lawful permanent residents. Ten percent is allocated to the third preference -- married sons and daughters of U.S. citizens. Thirty percent is allocated to the fourth preference -- brothers and sisters of U.S. citizens.

The 290,000 ceiling for employment-based immigrant visas is redistributed among the employment-based immigrant visa categories and certain modifications are made to current categories. Twenty percent is allocated to the first preference -- aliens with extraordinary ability, outstanding professors and researchers, and multinational executives and managers. Twenty percent is allocated to the second preference -- aliens holding advanced degrees or having exceptional ability. Thirty-five percent is allocated to the third preference -- skilled workers and professionals. Five percent is allocated to a re-designated fourth preference – investors. Thirty percent is allocated to a re-designated fifth preference -- other workers performing labor or services (previously included in third preference). The prior fourth preference is repealed so the 10,000 immigrant visas issued to special immigrants are not counted against the employment-based ceiling. Each year, all unused immigrant visas from the first four preference categories will be made available for fifth preference workers.

The immediate relative category is amended to allow the children of spouses and parents of U.S. citizens to obtain legal status and travel to the United States with their families.

Surviving spouses, children, and parents who applied for adjustment of status prior to the death of a qualifying relative, may have such application adjudicated as if the death had not occurred.

The income level required for an affidavit of support is changed from 125% to 100% of the federal poverty guidelines.

DHS is granted discretionary authority to waive certain misrepresentation grounds of inadmissibility for spouse, parent, or sons or daughters of U.S. citizens or lawful permanent residents if the alien demonstrates extreme hardship to the U.S. citizen or lawful permanent residence relative. Aliens granted such waivers must pay a $2000 fine.

The exemption for children from the 3 and 10 years bars is amended by raising the age from 18 to 21 years of age. DHS is granted discretionary authority to waive the 3 and 10-year bars for aliens who on or before the date of introduction of this Act had pending family-sponsored or employment-based petitions. Aliens granted such waivers must pay a $2000 fine.

An alien who is present in the United States before the date of introduction may apply to adjust status to that of an H-5B nonimmigrant, provided that the alien meets the requirements described in this title. The alien’s spouse and children may also apply for adjustment.

Applicants for H-5B status shall pay an initial fine of $1000, submit fingerprints and other data, and undergo criminal and security background checks. An applicant must also establish that s/he has worked in the U.S. before the date of introduction and since such date. An applicant is inadmissible as an H-5B nonimmigrant for grounds related to criminal conduct, security reasons, terrorist activity, or assisting the persecution of any person. Grounds of inadmissibility related to undocumented status, however, shall be waived. Applicants may seek review of their applications.

The initial period of authorized stay is for 6 years, during which time the H-5B worker is granted employment authorization, is able to travel abroad and is not allowed to adjust status to any other nonimmigrant or immigrant classification. This section also establishes a criminal penalty to ensure privacy and for making false statements on an H-5B application.

An H-5B nonimmigrant worker may apply for adjustment of status to legal permanent resident if the alien satisfies the following requirements: 1) completes the employment requirement; 2) pays an additional $1000 fine; 3) is admissible under immigration laws; 4) undergoes a medical examination; 5) shows proof of payment of taxes; 6) demonstrates knowledge of English and U.S. civics; 7) undergoes criminal and security background checks; and 8) registers for military selective service. The children and spouse of such an alien may also apply for adjustment.

Employers of aliens who apply for adjustment of status shall not be subject to civil or criminal tax liability relating to the employment of the alien.

This section authorizes funds to the Secretary of Homeland Security to carry out the provisions in this title.

This section defines who is an authorized representative. Only authorized representatives may advertise their services to provide representation in an immigration matter. This section establishes a process by which the Board of Immigration Appeals (BIA) may recognize a nonprofit organization to appear in immigration matters. It also establishes a process for the BIA to approve individuals as accredited representatives.

The BIA shall approve any qualified individual of a recognized organization as an accredited representative. An accredited representative must certify their accreditation every 3 years.

An alien who is determined by the Secretary of Homeland Security to be a victim of fraud by an unauthorized representative would qualify for a U visa.

Establishes the United States Citizenship Foundation under the auspices of USCIS. The Foundation is allowed to solicit, accept and make charitable gifts to support the functions of USCIS’ Office of Citizenship. This section also authorizes appropriations necessary to carry out the mission of the Office.

Directs DHS to establish a competitive grant program to fund entities certified by the Office of Citizenship to provide civics and English classes. The Secretary of DHS may accept and use gifts from the U.S. Citizenship Foundation for grants under this section.

Section 1001: Federal Reimbursement of Emergency Health Services Furnished to Undocumented Aliens

Extends the authorization for reimbursement of hospitals for the emergency care of undocumented immigrants established under Section 1011 of the Medicare Prescription Drug, Improvement and Modernization Act of 2003 (MMA) from fiscal years 2008 to 2011 and adds H-5A and H-5B workers to the list of patients for whom hospitals may be reimbursed.

Section 1002: Prohibition Against Offset of Certain Medicare and Medicaid Payments

Payments under section 1011 of the MMA shall not be considered “third party coverage” for the purposes of section 1923 of the Social Security Act or be offset by reduced federal Medicaid funding for hospitals for the treatment of low-income patients.

Section 1003: Prohibition against Interested Agencies Discriminating Against Aliens on the Basis of their Employment in Hospital-based versus Non-Hospital-based Sites

When requesting a waiver of the 2-year foreign residence requirement on behalf of a J visa holder, State or Federal Agencies shall not discriminate on the basis of the J visa holder’s employment in a hospital or other health care setting.

Section 1101: Submission to Congress of Information Regarding H-5A Nonimmigrants

The Secretary of State and Homeland Security will provide quarterly reports on the number of H-5A non-immigrant visas used during the preceding 3-month period to the Committees on the Judiciary of both the House and the Senate. Reports will also be provided to these committees on an annual basis with more in-depth information on the types of workers and occupations assumed by the workers. These reports will be used as oversight mechanisms. .

All petition fees paid by H-5A workers and fees and fines paid by H-5B workers shall be deposited with the U.S. Treasury into the “H-5 Nonimmigrant Petitioner Account.” The money in the account shall be divided as follows: 1) 53% for the Department of Homeland Security, border security, public outreach, and civic integration programs; 2) 15% for the Department of Labor enforcement activities; 3) 15% for the Commissioner of Social Security for the Employment Eligibility Confirmation System; 4) 15% for the Department of State; and 5) 2% for the reimbursement of hospitals.

DHS shall disseminate information regarding the programs and requirements established under this Act to: employers, labor unions, BIA-recognized organizations, other appropriate organizations, and aliens.