[House Report 118-359]
[From the U.S. Government Publishing Office]
118th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 118-359
======================================================================
AGENT RAUL GONZALEZ OFFICER SAFETY ACT
_______
January 25, 2024.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Jordan, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 5585]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 5585) to impose criminal and immigration penalties
for intentionally fleeing a pursuing Federal officer while
operating a motor vehicle, having considered the same, reports
favorably thereon with an amendment and recommends that the
bill as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 3
Background and Need for the Legislation.......................... 3
Hearings......................................................... 6
Committee Consideration.......................................... 6
Committee Votes.................................................. 6
Committee Oversight Findings..................................... 11
New Budget Authority and Tax Expenditures........................ 11
Congressional Budget Office Cost Estimate........................ 11
Committee Estimate of Budgetary Effects.......................... 12
Duplication of Federal Programs.................................. 12
Performance Goals and Objectives................................. 12
Advisory on Earmarks............................................. 12
Federal Mandates Statement....................................... 13
Advisory Committee Statement..................................... 13
Applicability to Legislative Branch.............................. 13
Section-by-Section Analysis...................................... 13
Changes in Existing Law Made by the Bill, as Reported............ 13
Dissenting Views................................................. 74
The amendment is as follows:
Strike all that follows after the enacting clause and insert
the following:
SECTION 1. SHORT TITLE.
This Act may be cited as ``Agent Raul Gonzalez Officer Safety Act''.
SEC. 2. CRIMINAL PENALTIES FOR EVADING ARREST OR DETENTION.
(a) In General.--Chapter 2 of title 18, United States Code, is
amended by adding at the end the following:
``Sec. 40B. Evading arrest or detention while operating a motor vehicle
``(a) Offense.--A person commits an offense under this section by
operating a motor vehicle within 100 miles of the United States border
while intentionally fleeing from--
``(1) a pursuing U.S. Border Patrol agent acting pursuant to
lawful authority; or
``(2) any pursuing Federal, State, or local law enforcement
officer who is actively assisting, or under the command of,
U.S. Border Patrol.
``(b) Penalties.--
``(1) In general.--Except as provided in paragraphs (2) and
(3), any person who commits an offense described in subsection
(a) shall be--
``(A) imprisoned for a term of not more than 2 years;
``(B) fined under this title; or
``(C) subject to the penalties described in
subparagraphs (A) and (B).
``(2) Serious bodily injury.--If serious bodily injury
results from the commission of an offense described in
subsection (a), the person committing such offense shall be--
``(A) imprisoned for a term of not less than 5 years
and not more than 20 years;
``(B) fined under this title; or
``(C) subject to the penalties described in
subparagraphs (A) and (B).
``(3) Death.--If the death of any person results from the
commission of an offense described in subsection (a), the
person committing such offense shall be--
``(A) imprisoned for a term of not less than 10 years
and up to life;
``(B) fined under this title; or
``(C) subject to the penalties described in
subparagraphs (A) and (B).''.
(b) Clerical Amendment.--The analysis for chapter 2 of title 18,
United States Code, is amended by adding at the end the following:
``40B. Evading arrest or detention while operating a motor vehicle.''.
SEC. 3. INADMISSIBILITY, DEPORTABILITY, AND INELIGIBILITY RELATED TO
EVADING ARREST OR DETENTION WHILE OPERATING A MOTOR
VEHICLE.
(a) Inadmissibility.--Section 212(a)(2) of the Immigration and
Nationality Act (8 U.S.C. 1182(a)(2)) is amended by adding at the end
the following:
``(J) Evading arrest or detention while operating a
motor vehicle.--Any alien who has been convicted of,
who admits having committed, or who admits committing
acts which constitute the essential elements of a
violation of section 40B(a) of title 18, United States
Code, is inadmissible.''.
(b) Deportability.--Section 237(a)(2) of the Immigration and
Nationality Act (8 U.S.C. 1227(a)(2)) is amended by adding at the end
the following:
``(G) Evading arrest or detention while operating a
motor vehicle.--Any alien who has been convicted of,
who admits having committed, or who admits committing
acts which constitute the essential elements of a
violation of section 40B(a) of title 18, United States
Code, is deportable.''.
(c) Ineligibility for Relief.--Chapter 2 of title II of the
Immigration and Nationality Act is amended by inserting after section
208 the following:
``SEC. 208A. INELIGIBILITY FOR RELIEF RELATED TO EVADING ARREST OR
DETENTION WHILE OPERATING A MOTOR VEHICLE.
``Any alien who has been convicted of, who admits having committed,
or who admits committing acts which constitute the essential elements
of a violation of section 40B(a) of title 18, United States Code, shall
be ineligible for relief under the immigration laws, including asylum
under section 208.''.
SEC. 4. ANNUAL REPORT.
The Attorney General shall submit an annual report to the Committee
on the Judiciary of the Senate and the Committee on the Judiciary of
the House of Representatives that--
(1) identifies the number of people who were charged, during
the reporting period, with a violation of section 40B(a) of
title 18, United States Code, as added by section 2(a); and
(2) summarizes--
(A) the penalties sought in the charging documents
pertaining to the violations referred to in paragraph
(1); and
(B) the penalties imposed for such violations.
Purpose and Summary
H.R. 5585, the Agent Raul Gonzalez Officer Safety Act,
introduced by Rep. Juan Ciscomani (R-AZ), imposes criminal
penalties on individuals who evade U.S. Border Patrol agents,
or other federal, state, or local law enforcement officers
assisting Border Patrol agents and makes aliens who are
convicted of or admit to committing such acts inadmissible to
and removable from the U.S. It also ensures such aliens are
ineligible for immigration relief, including asylum.
Background and Need for the Legislation
During the Biden Administration, there have been 35
straight months in which U.S. Customs and Border Protection
(CBP) has encountered more than 100,000 illegal aliens along
the southwest border.\1\ Since President Biden took office,
more than 7 million illegal aliens have been encountered by CBP
along the southwest border.\2\ In September 2023, CBP on the
southwest border encountered 269,735 illegal aliens, shattering
the previous record of 252,315 encounters in December 2022.\3\
In December 2023, according to press reports, the Biden
Administration broke the September 2023 record with a
staggering 302,000 illegal alien encounters.\4\ More than 3.3
million illegal aliens have been released into the United
States by the Biden Administration, and there have been at
least 1.7 million known ``gotaways.''\5\ In addition, an untold
number of unknown ``gotaways'' have evaded Border Patrol agents
and escaped into the interior since January 20, 2021.\6\
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\1\U.S. Customs and Border Prot., Sw. Land Border Encounters, U.S.
Dep't of Homeland Sec. (last accessed Dec. 27, 2023), https://
www.cbp.gov/newsroom/stats/southwest-land-border-encounters (reporting
6,776,255 illegal alien encounters through Nov. 2023); Bill Melugin
(@BillMelugin_), X (Dec. 26, 2023, 11:28 AM), https://x.com/
BillMelugin_/status/1739699696585814515?s=20 (reporting 730,000 illegal
alien encounters thus far in FY 2024). Under the Biden Administration,
CBP has encountered at least 7,022,862 illegal aliens along the
southwest border.
\2\Id.
\3\Id.
\4\Bill Melugin (@BillMelugin_), X (Jan. 2, 2024 10:54 AM), https:/
/x.com/BillMelugin_/status/1742212865803911284?s=20; Bill Melugin
(@BillMelugin_), X (Dec. 19, 2023 8:33 AM), https://x.com/BillMelugin_/
status/1737103946429186105?s=20.
\5\See H. Comm. on the Judiciary, Rep. on The Biden Border Crisis:
How the Biden Admin. Opened the Sw. Border and Abandoned Interior
Immigr. Enf't at App'x 1 (Oct. 9, 2023) (``DHS released at least
2,148,738 illegal aliens into the United States'' through March 2023);
see also U.S. Customs and Border Prot., CBP Releases Nov. 2023 Monthly
Update, U.S. Dep't of Homeland Sec. (Dec. 22, 2023), https://
www.cbp.gov/newsroom/national-media-release/cbp-releases-november-2023-
monthly-update (``297,000 Cubans, Haitians, Nicaraguans, and
Venezuelans [] were granted parole under the parole processes [through
Nov. 2023]'') [hereinafter Nov. 2023 Monthly Update]; U.S. Customs and
Border Prot., Custody and Transfer Statistics FY 2023, U.S. Dep't of
Homeland Sec. (last accessed Jan. 12, 2024), https://www.cbp.gov/
newsroom/stats/custody-and-transfer-statistics-fy2023 (reporting that,
between April 2023 and September 2023, 507,873 illegal aliens were
released with a notice to appear or paroled); Bill Melugin
(@BillMelugin_), X (Dec. 22, 2023, 12:07 PM), https://x.com/
BillMelugin_/status/1738244827475775910?s=20 (In FY 2024 thus far,
``Border Patrol has released more than 386,500 illegal aliens''); Casey
Harper, Border crisis creates national security threat for U.S.,
observers say, The Center Square (Aug. 5, 2023), https://
www.thecentersquare.com/national/article_37491ca0-32ff-11ee-945b-
7f09d39f7aa0.html. Under the Biden Administration, at least 3,340,111
illegal aliens have been released into the United States and 1.7
million known ``gotaways'' have evaded Border Patrol.
\6\Harper, supra note 5.
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The Biden Administration's lax enforcement of the
immigration laws has incentivized illegal alien smuggling.
Smugglers in vehicles routinely evade Border Patrol agents, and
high-speed chases often ensue.\7\ The number of high-speed
chases continues to increase along the southwest border.\8\
While especially prevalent in the Tucson, Arizona, area, where
such chases are ``resulting in deaths and injuries among
innocent residents,''\9\ high-speed chases are also common in
other American communities. For instance, in El Paso, Texas, in
July 2023, ``several people, including a child, were injured
when a driver smuggling [illegal aliens] wrecked into two other
vehicles while running from a Texas state trooper.''\10\ Nine
people were taken to the hospital to receive medical attention
for their injuries.\11\
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\7\See infra notes 93, 95, 97, & 98.
\8\J. David Goodman, High-Speed Police Chases Rise Near Texas
Border, Leaving Locals on Edge, N. Y. Times (Nov. 24, 2023), https://
www.nytimes.com/2023/11/24/us/texas-border-police-
chases.html?searchResultPosition=1.
\9\Lupita Murillo, Operation Safe Streets II in its third week,
News4 Tucson (Nov. 14, 2023), https://www.kvoa.com/news/local/
operation-safe-streets-ii-in-its-third-week/article_6f3ffb18-834c-11ee-
a8ea-5bc1cd972319.html.
\10\Daniel Borunda, Texas DPS pursuit of migrant smuggler vehicle
ends in West El Paso crash, several injured, El Paso Times (July 31,
2023), https://www.elpasotimes.com/story/news/crime/2023/07/31/el-paso-
texas-dps-pursuit-migrant-smuggler-vehicle-crash-south-desert-
boulevard/70499277007/.
\11\Id.
---------------------------------------------------------------------------
In addition to Americans who live in border communities,
federal, state, and local law enforcement officers have been
injured and killed as a result of high-speed chases with
smugglers. On February 24, 2021, Border Patrol agents pursued a
human smuggler who was attempting to transport nearly a dozen
illegal aliens and who failed to stop at a checkpoint on the
outskirts of San Diego, California.\12\ Four agents were
injured during the chase after ``the [smuggler's] SUV hit
several Border Patrol vehicles before crashing into at least
two civilian vehicles.''\13\ On September 30, 2023, an Arizona
sheriff's deputy was hurt after he fell 15 feet while assisting
in the capture of smugglers attempting to evade
authorities.\14\ On December 7, 2022, Border Patrol Agent Raul
Gonzalez, while in pursuit of a group of illegal aliens evading
Border Patrol agents in Mission, Texas, crashed his all-terrain
vehicle into a gate.\15\ Agent Gonzalez died from his injuries
just a few hours later.\16\
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\12\City News Service, 4 Border Patrol Agents Injured in Crash
During Chase of Migrant Smuggler's SUV, Times of San Diego (Feb. 24,
2021), https://timesofsandiego.com/crime/2021/02/24/4-border-patrol-
agents-injured-in-crash-during-chase-of-migrant-smugglers-suv/.
\13\Id.
\14\Sarah Rumpf-Whitten, Arizona sheriff's deputy near border falls
15-feet, injured in pursuit of human smuggler: `Enough is enough', FOX
NEWS (Sept. 30, 2023), https://www.foxnews.com/us/texas-sheriffs-
deputy-near-border-falls-15-feet-injured-pursuit-human-smuggler-enough-
enough.
\15\MaryAnn Martinez, US Border Patrol agent killed chasing illegal
immigrants in Texas N.Y. Post (Dec. 7, 2022), https://nypost.com/2022/
12/07/border-patrol-agent-killed-chasing-illegal-migrants-in-texas/.
\16\Id.
---------------------------------------------------------------------------
In October of last year, the Arizona Sheriffs Association
announced it would send deputies from Apache, Coconino, Navajo,
Pinal, and Yavapai County to Cochise County to assist law
enforcement in combatting border-related crime, including high-
speed chases.\17\ One lifelong Cochise County resident
reflected on the dangers of Highway 90, now a major smuggling
route, stating, ``It's scary to the point that you don't want
to drive the highway but to get to work you have to . . . . I'm
actually scared about going out into the public sometimes
because what if there is a high-speed chase and something goes
sideways they get into a car accident, hop on a curb, and hit
anybody . . . .''\18\ In Tombstone, Arizona, U.S. Marshal Jim
Adams spoke of the high-speed chases racing through his town:
``This is a weekly occurrence. Sometimes daily, sometimes
several times a day.''\19\ According to the Marshal's office,
of the 91 calls it handled last year, around 51 involved
smuggler chases.\20\
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\17\ADI Staff, Sheriffs Send Resources To Cochise County To Combat
Border Crime Arizona Daily Independent (Oct. 26, 2023), https://
arizonadailyindependent.com/2023/10/26/sheriffs-send-resources-to-
cochise-county-to-combat-border-crime/.
\18\Murillo, supra note 9.
\19\Craig Smith, High-speed smugglers risk your life on Tombstone
streets, ABC KGUN Tucson (Oct. 3, 2023), https://www.kgun9.com/news/
local-news/cochise-county/on-tombstone-streets-high-speed-smugglers-
risk-your-life.
\20\Id.
---------------------------------------------------------------------------
Human smuggling is an incredibly lucrative business.
According to Border Patrol estimates, in the Del Rio Sector
alone, cartels' human smuggling profit is $32 million per week,
for a staggering total of $1.6 billion per year.\21\ With a
continuing demand for human smuggling because of the open
southwest border, cartels are also recruiting minors to drive
illegal aliens across the border. Minors are falsely told they
will not face legal consequences if caught.\22\ According to
Cochise County, Arizona, Sheriff Mark Dannels, ``We have over a
hundred juveniles in the last 18 months that we've apprehended
in this county smuggling, all the way to the age of 13 and 12
years of age down here, driving grandma's car, a friend's car,
or mom and dad's car down here . . . .''\23\ In March 2022, law
enforcement in Arizona started a task force to address human
smuggling across the border.\24\ The task force, called
Operation Safe Streets, helped to pass a law that made human
trafficking a state violation, allowing for easier prosecutions
of juveniles for such crimes and deterring other potential
criminals.\25\ However, even with this state legislation,
police face challenges in apprehending smugglers through high-
speed chases as historic numbers of illegal alien encounters
continue at the border.\26\ Indeed, the lack of specific
federal criminal and immigration consequences has incentivized
criminals and aliens to evade the Border Patrol, resulting in
the rising number of dangerous high-speed chases.\27\
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\21\Stephen Dinan, Cartels make $32 million a week off migrants in
one stretch of Texas border, Wash. Examiner (Jan. 3, 2024), https://
www.washingtontimes.com/news/2024/jan/3/cartels-make-32-million-week-
off-migrants-in-one-s/?utm_source=Twitter&utm_medium=SocialFlow.
\22\Melissa Ford Maldonado & Zach Whiting, Parents, beware of
Mexican Drug Cartel Operatives trying to `slide into your child's DMs',
Texas Public Policy Foundation (March 28, 2023), https://
www.texaspolicy.com/parents-beware-of-mexican-drug-cartel-operatives-
trying-to-slide-into-your-childs-dms/
#::text=With%20demand%20for%20human%20smugglers,
apprehended%20because%20they%20are%20minors.
\23\Kris Van Cleave, Cochise County turning into a drug and human
smuggling raceway as border crossings surge, Arizona's Family (Oct. 5,
2023), https://www.azfamily.com/2023/10/06/ cochise-county-turning-
into-drug-human-smuggling-raceway-border-crossings-surge/.
\24\Aleix Oliveira, Babyfaced Arizona teens suspected of working as
people smugglers for a cartel in worrying new trend: cops N.Y. Post
(Nov. 13, 2023), https://nypost.com/2023/11/13/news/arizona-teens-eli-
laclaire-and-landon-vert-arrested-for-people-smuggling/.
\25\Id.
\26\Id.; CBP Sw. Land Border Encounters, supra note 1.
\27\Id.; Goodman, supra note 8.
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During Committee consideration of H.R. 5585, the Minority
argued that to be subject to the bill's immigration penalties,
an alien should have to have been convicted of fleeing a law
enforcement officer. However, under current law, not every
ground of inadmissibility or removability requires a
conviction.\28\ Indeed, by requiring, at a minimum, that an
alien admits to the elements of the offense, H.R. 5585 conforms
to the pattern of other grounds of inadmissibility and
removability.\29\ Moreover, by ensuring an alien may be
inadmissible or removable based on his own admission, this
legislation guards against cases in which an activist
prosecutor may decline to prosecute these offenses or allow
aliens to plead down to crimes that do not render such aliens
removable.
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\28\See INA Sec. 212(a)(2); INA Sec. 237(a)(1)(C); INA Sec.
237(a)(1)(E); INA Sec. 237(a)(1)(G).
\29\Id.
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H.R.5585 gives authorities the necessary tools to fully
prosecute and punish criminals who intentionally fail to yield
to Border Patrol agents, and law enforcement officials
assisting the Border Patrol.
Hearings
For the purposes of clause 3(c)(6)(A) of House rule XIII,
the following hearing was used to develop H.R. 5585: ``The
Biden Border Crisis: Part I,'' a hearing held on February 1,
2023, before the Judiciary Committee. The Committee heard
testimony from the following witnesses:
Brandon Dunn, co-founder, Forever15Project;
The Honorable Mark J. Dannels, Sheriff,
Cochise County, Arizona;
The Honorable Dale Lynn Carruthers, County
Judge, Terrell County, Texas; and
The Honorable Ricardo Samaniego, County
Judge, El Paso County, Texas.
The hearing addressed how President Biden's open-borders
policies affect Americans with rising crime and lawlessness at
the southwest border and beyond. In his opening statement,
Sheriff Mark Dannels of Cochise County, Arizona, testified how
his deputies have been placed in life-threatening situations
with aliens and how border-related crimes, including high-speed
chases resulting from criminals and illegal aliens evading
Border Patrol and state and local law enforcement, are at an
all-time high.\30\
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\30\The Biden Border Crisis: Part I: Hearing Before the H. Comm. On
the Judiciary, 118th Cong. (2023) (statement of Mark J. Dannels,
Sheriff, Cochise County, Arizona).
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Committee Consideration
On January 18, 2024, the Committee met in open session and
ordered the bill, H.R. 5585, favorably reported with an
amendment in the nature of a substitute, by a roll call vote of
14-10, a quorum being present.
Committee Votes
In compliance with clause 3(b) of House rule XIII, the
following roll call votes occurred during the Committee's
consideration of H.R. 5585:
1. Vote on Amendment #1 to the H.R. 5585 ANS, offered
by Ms. Escobar of Texas--failed 11 ayes to 13 nays.
2. Vote on Amendment #2 to the H.R. 5585 ANS, offered
by Ms. Jackson Lee of Texas--failed 9 ayes to 13 nays.
3. Vote on favorably reporting H.R. 5585, as
amended--passed 14 ayes to 10 nays.
Committee Oversight Findings
In compliance with clause 3(c)(1) of House rule XIII, the
Committee advises that the findings and recommendations of the
Committee, based on oversight activities under clause 2(b)(1)
of rule X of the Rules of the House of Representatives, are
incorporated in the descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives does not apply where a cost estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974 has been timely submitted prior to filing of the report
and is included in the report. Such a cost estimate is included
in this report.
Congressional Budget Office Cost Estimate
With respect to the requirement of clause 3(c)(3) of rule
XIII of the Rules of the House of Representatives and section
402 of the Congressional Budget Act of 1974, the Committee has
received the enclosed cost estimate for H.R. 5585 from the
Director of the Congressional Budget Office:
H.R. 5585 would create new criminal penalties for using a
motor vehicle to flee a border patrol agent within 100 miles of
the United States border. Those penalties would increase if the
offense resulted in death or serious injury. H.R. 5585 also
would make an alien (a non-U.S. national) inadmissible to or
deportable from the United States if that person admitted to or
was convicted of such an offense. Lastly, the bill would
require the Department of Justice to report annually to the
Congress on the number of people charged with the offense
specified in the bill and the sentencing outcome for each
offense.
Based on data from the U.S. Sentencing Commission, a small
number of people who are convicted of immigration offenses pay
criminal fines. Criminal fines are recorded in the budget as
revenues, deposited in the Crime Victims Fund, and later spent
without further appropriation. Using data on fines collected
for other immigration offenses, CBO estimates that enacting
H.R. 5585 would increase revenues and direct spending from
fines by less than $500,000 over the 2024-2033 period.
Under current law, driving recklessly to evade police is
deemed to be a crime involving moral turpitude; the admission
of or conviction for such crimes makes an alien inadmissible.
Further, a conviction for high-speed flight from an immigration
checkpoint renders an alien deportable. Therefore, CBO expects
that only a few people would be deported based solely on
enacting this bill.
Enacting H.R. 5585 would reduce direct spending and
spending subject to appropriation because aliens are eligible
for certain federal benefits, such as emergency Medicaid, if
they otherwise meet the eligibility requirements for those
benefits. Removing aliens under the bill would reduce spending
for those benefits. Because few people would be affected by the
bill, CBO estimates that those effects would not be significant
in any year and over the 2024-2033 period.
Finally, based on the costs of similar activities, CBO
estimates that implementing the reporting requirement would
cost less than $500,000 over the 2024-2028 period. That
spending would be subject to the availability of appropriated
funds.
The CBO staff contacts for this estimate are Jeremy Crimm
(for the Department of Justice) and David Rafferty (for
immigration). The estimate was reviewed by H. Samuel Papenfuss,
Deputy Director of Budget Analysis.
Phillip L. Swagel,
Director, Congressional Budget Office.
Committee Estimate of Budgetary Effects
With respect to the requirements of clause 3(d)(1) of rule
XIII of the Rules of the House of Representatives, the
Committee adopts as its own the cost estimate prepared by the
Director of the Congressional Budget Office pursuant to section
402 of the Congressional Budget Act of 1974.
Duplication of Federal Programs
Pursuant to clause 3(c)(5) of House rule XIII, no provision
of H.R. 5585 establishes or reauthorizes a program of the
federal government known to be duplicative of another federal
program.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
House rule XIII, H.R. 5585 imposes criminal penalties on
individuals who evade U.S. Border Patrol agents, or other
federal,state, or local law enforcement officers assisting
Border Patrol agents, makes aliens who are convicted of or admit to
committing such acts inadmissible to and removable from the U.S., and
ensures such aliens are ineligible for immigration relief, including
asylum.
Advisory on Earmarks
In accordance with clause 9 of House rule XXI, H.R. 5585
does not contain any congressional earmarks, limited tax
benefits, or limited tariff benefits as defined in clauses
9(d), 9(e), or 9(f) of House rule XXI.
Federal Mandates Statement
The Committee adopts as its own the estimate of federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act (Pub. L. 104-
1).
Section-by-Section Analysis
Sec. 1: Short Title: This section states the title of H.R.
5585 as the ``Agent Raul Gonzalez Officer Safety Act.''
Sec. 2(a): This section amends title 18 of the U.S. Code by
adding a new offense of evading arrest or detention while
operating a motor vehicle. Specifically, a person commits an
offense by operating a vehicle within 100 miles of the border
while intentionally fleeing from border patrol, state or local
law enforcement, or other federal law enforcement.
Sec. 2(b): Penalties. A person committing this offense will
be imprisoned for up to 2 years or fined. If the evasion
results in serious bodily injury, the person will be imprisoned
for 5 to 20 years, fined or both. If the evasion results in
death, the person will be imprisoned for not less than 10
years, fined or both.
Sec. 3. Inadmissibility, Deportability, and Ineligibility
Related to Evading Arrest or Detention While Operating a Motor
Vehicle: This section creates a ground of inadmissibility and a
ground of removability for aliens who have been convicted of,
admit to, or admit to committing acts that constitute the
essential elements of a violation of 18 U.S.C. Sec. 40B(a),
evading arrest or detention while operating a motor vehicle.
The section makes such aliens ineligible for all immigration
relief.
Sec. 4: Annual Report: This section requires the Attorney
General to submit an annual report to both the House and Senate
Judiciary Committees. The report will identify the number of
people charged, and summarize the penalties sought and the
penalties imposed for the violations.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italics and existing law in which no change is
proposed is shown in roman):
TITLE 18, UNITED STATES CODE
* * * * * * *
PART I--CRIMES
* * * * * * *
CHAPTER 2--AIRCRAFT AND MOTOR VEHICLES
Sec.
31. Definitions.
* * * * * * *
40B. Evading arrest or detention while operating a motor vehicle.
* * * * * * *
Sec. 40B. Evading arrest or detention while operating a motor vehicle
(a) Offense.--A person commits an offense under this section
by operating a motor vehicle within 100 miles of the United
States border while intentionally fleeing from--
(1) a pursuing U.S. Border Patrol agent acting
pursuant to lawful authority; or
(2) any pursuing Federal, State, or local law
enforcement officer who is actively assisting, or under
the command of, U.S. Border Patrol.
(b) Penalties.--
(1) In general.--Except as provided in paragraphs (2)
and (3), any person who commits an offense described in
subsection (a) shall be--
(A) imprisoned for a term of not more than 2
years;
(B) fined under this title; or
(C) subject to the penalties described in
subparagraphs (A) and (B).
(2) Serious bodily injury.--If serious bodily injury
results from the commission of an offense described in
subsection (a), the person committing such offense
shall be--
(A) imprisoned for a term of not less than 5
years and not more than 20 years;
(B) fined under this title; or
(C) subject to the penalties described in
subparagraphs (A) and (B).
(3) Death.--If the death of any person results from
the commission of an offense described in subsection
(a), the person committing such offense shall be--
(A) imprisoned for a term of not less than 10
years and up to life;
(B) fined under this title; or
(C) subject to the penalties described in
subparagraphs (A) and (B).
* * * * * * *
----------
IMMIGRATION AND NATIONALITY ACT
* * * * * * *
TITLE II--IMMIGRATION
* * * * * * *
Chapter 2--Qualifications for Admission of Aliens; Travel Control of
Citizens and Aliens
* * * * * * *
SEC. 208A. INELIGIBILITY FOR RELIEF RELATED TO EVADING ARREST OR
DETENTION WHILE OPERATING A MOTOR VEHICLE.
Any alien who has been convicted of, who admits having
committed, or who admits committing acts which constitute the
essential elements of a violation of section 40B(a) of title
18, United States Code, shall be ineligible for relief under
the immigration laws, including asylum under section 208.
* * * * * * *
general classes of aliens ineligible to receive visas and ineligible
for admission; waivers of inadmissibility
Sec. 212. (a) Classes of Aliens Ineligible for Visas or
Admission.--Except as otherwise provided in this Act, aliens
who are inadmissible under the following paragraphs are
ineligible to receive visas and ineligible to be admitted to
the United States:
(1) Health-related grounds.--
(A) In general.--Any alien--
(i) who is determined (in accordance
with regulations prescribed by the
Secretary of Health and Human Services)
to have a communicable disease of
public health significance;
(ii) except as provided in
subparagraph (C), who seeks admission
as an immigrant, or who seeks
adjustment of status to the status of
an alien lawfully admitted for
permanent residence, and who has failed
to present documentation of having
received vaccination against vaccine-
preventable diseases, which shall
include at least the following
diseases: mumps, measles, rubella,
polio, tetanus and diphtheria toxoids,
pertussis, influenza type B and
hepatitis B, and any other vaccinations
against vaccine-preventable diseases
recommended by the Advisory Committee
for Immunization Practices,
(iii) who is determined (in
accordance with regulations prescribed
by the Secretary of Health and Human
Services in consultation with the
Attorney General)--
(I) to have a physical or
mental disorder and behavior
associated with the disorder
that may pose, or has posed, a
threat to the property, safety,
or welfare of the alien or
others, or
(II) to have had a physical
or mental disorder and a
history of behavior associated
with the disorder, which
behavior has posed a threat to
the property, safety, or
welfare of the alien or others
and which behavior is likely to
recur or to lead to other
harmful behavior, or
(iv) who is determined (in accordance
with regulations prescribed by the
Secretary of Health and Human Services)
to be a drug abuser or addict,
is inadmissibility.
(B) Waiver authorized.--For provision
authorizing waiver of certain clauses of
subparagraph (A), see subsection (g).
(C) Exception from immunization requirement
for adopted children 10 years of age or
younger.--Clause (ii) of subparagraph (A) shall
not apply to a child who--
(i) is 10 years of age or younger,
(ii) is described in subparagraph (F)
or (G) of section 101(b)(1); and
(iii) is seeking an immigrant visa as
an immediate relative under section
201(b),
if, prior to the admission of the child, an
adoptive parent or prospective adoptive parent
of the child, who has sponsored the child for
admission as an immediate relative, has
executed an affidavit stating that the parent
is aware of the provisions of subparagraph
(A)(ii) and will ensure that, within 30 days of
the child's admission, or at the earliest time
that is medically appropriate, the child will
receive the vaccinations identified in such
subparagraph.
(2) Criminal and related grounds.--
(A) Conviction of certain crimes.--
(i) In general.--Except as provided
in clause (ii), any alien convicted of,
or who admits having committed, or who
admits committing acts which constitute
the essential elements of--
(I) a crime involving moral
turpitude (other than a purely
political offense) or an
attempt or conspiracy to commit
such a crime, or
(II) a violation of (or a
conspiracy or attempt to
violate) any law or regulation
of a State, the United States,
or a foreign country relating
to a controlled substance (as
defined in section 102 of the
Controlled Substances Act (21
U.S.C. 802)),
is inadmissible.
(ii) Exception.--Clause (i)(I) shall
not apply to an alien who committed
only one crime if--
(I) the crime was committed
when the alien was under 18
years of age, and the crime was
committed (and the alien
released from any confinement
to a prison or correctional
institution imposed for the
crime) more than 5 years before
the date of application for a
visa or other documentation and
the date of application for
admission to the United States,
or
(II) the maximum penalty
possible for the crime of which
the alien was convicted (or
which the alien admits having
committed or of which the acts
that the alien admits having
committed constituted the
essential elements) did not
exceed imprisonment for one
year and, if the alien was
convicted of such crime, the
alien was not sentenced to a
term of imprisonment in excess
of 6 months (regardless of the
extent to which the sentence
was ultimately executed).
(B) Multiple criminal convictions.--Any alien
convicted of 2 or more offenses (other than
purely political offenses), regardless of
whether the conviction was in a single trial or
whether the offenses arose from a single scheme
of misconduct and regardless of whether the
offenses involved moral turpitude, for which
the aggregate sentences to confinement were 5
years or more is inadmissible.
(C) Controlled substance traffickers.--Any
alien who the consular officer or the Attorney
General knows or has reason to believe--
(i) is or has been an illicit
trafficker in any controlled substance
or in any listed chemical (as defined
in section 102 of the Controlled
Substances Act (21 U.S.C. 802)), or is
or has been a knowing aider, abettor,
assister, conspirator, or colluder with
others in the illicit trafficking in
any such controlled or listed substance
or chemical, or endeavored to do so; or
(ii) is the spouse, son, or daughter
of an alien inadmissible under clause
(i), has, within the previous 5 years,
obtained any financial or other benefit
from the illicit activity of that
alien, and knew or reasonably should
have known that the financial or other
benefit was the product of such illicit
activity,
is inadmissible.
(D) Prostitution and commercialized vice.--
Any alien who--
(i) is coming to the United States
solely, principally, or incidentally to
engage in prostitution, or has engaged
in prostitution within 10 years of the
date of application for a visa,
admission, or adjustment of status,
(ii) directly or indirectly procures
or attempts to procure, or (within 10
years of the date of application for a
visa, entry, or adjustment of status)
procured or attempted to procure or to
import, prostitutes or persons for the
purpose of prostitution, or receives or
(within such 10-year period) received,
in whole or in part, the proceeds of
prostitution, or
(iii) is coming to the United States
to engage in any other unlawful
commercialized vice, whether or not
related to prostitution,
is inadmissible.
(E) Certain aliens involved in serious
criminal activity who have asserted immunity
from prosecution.--Any alien--
(i) who has committed in the United
States at any time a serious criminal
offense (as defined in section 101(h)),
(ii) for whom immunity from criminal
jurisdiction was exercised with respect
to that offense,
(iii) who as a consequence of the
offense and exercise of immunity has
departed from the United States, and
(iv) who has not subsequently
submitted fully to the jurisdiction of
the court in the United States having
jurisdiction with respect to that
offense,
is inadmissible.
(F) Waiver authorized.--For provision
authorizing waiver of certain subparagraphs of
this paragraph, see subsection (h).
(G) Foreign government officials who have
committed particularly severe violations of
religious freedom.--Any alien who, while
serving as a foreign government official, was
responsible for or directly carried out, at any
time, particularly severe violations of
religious freedom, as defined in section 3 of
the International Religious Freedom Act of 1998
(22 U.S.C. 6402), is inadmissible.
(H) Significant traffickers in persons.--
(i) In general.--Any alien who
commits or conspires to commit human
trafficking offenses in the United
States or outside the United States, or
who the consular officer, the Secretary
of Homeland Security, the Secretary of
State, or the Attorney General knows or
has reason to believe is or has been a
knowing aider, abettor, assister,
conspirator, or colluder with such a
trafficker in severe forms of
trafficking in persons, as defined in
the section 103 of such Act, is
inadmissible.
(ii) Beneficiaries of trafficking.--
Except as provided in clause (iii), any
alien who the consular officer or the
Attorney General knows or has reason to
believe is the spouse, son, or daughter
of an alien inadmissible under clause
(i), has, within the previous 5 years,
obtained any financial or other benefit
from the illicit activity of that
alien, and knew or reasonably should
have known that the financial or other
benefit was the product of such illicit
activity, is inadmissible.
(iii) Exception for certain sons and
daughters.--Clause (ii) shall not apply
to a son or daughter who was a child at
the time he or she received the benefit
described in such clause.
(I) Money laundering.--Any alien--
(i) who a consular officer or the
Attorney General knows, or has reason
to believe, has engaged, is engaging,
or seeks to enter the United States to
engage, in an offense which is
described in section 1956 or 1957 of
title 18, United States Code (relating
to laundering of monetary instruments);
or
(ii) who a consular officer or the
Attorney General knows is, or has been,
a knowing aider, abettor, assister,
conspirator, or colluder with others in
an offense which is described in such
section;
is inadmissible.
(J) Evading arrest or detention while
operating a motor vehicle.--Any alien who has
been convicted of, who admits having committed,
or who admits committing acts which constitute
the essential elements of a violation of
section 40B(a) of title 18, United States Code,
is inadmissible.
(3) Security and related grounds.--
(A) In general.--Any alien who a consular
officer or the Attorney General knows, or has
reasonable ground to believe, seeks to enter
the United States to engage solely,
principally, or incidentally in--
(i) any activity (I) to violate any
law of the United States relating to
espionage or sabotage or (II) to
violate or evade any law prohibiting
the export from the United States of
goods, technology, or sensitive
information,
(ii) any other unlawful activity, or
(iii) any activity a purpose of which
is the opposition to, or the control or
overthrow of, the Government of the
United States by force, violence, or
other unlawful means,
is inadmissible.
(B) Terrorist activities.--
(i) In general.--Any alien who--
(I) has engaged in a
terrorist activity;
(II) a consular officer, the
Attorney General, or the
Secretary of Homeland Security
knows, or has reasonable ground
to believe, is engaged in or is
likely to engage after entry in
any terrorist activity (as
defined in clause (iv));
(III) has, under
circumstances indicating an
intention to cause death or
serious bodily harm, incited
terrorist activity;
(IV) is a representative (as
defined in clause (v)) of--
(aa) a terrorist
organization (as
defined in clause
(vi)); or
(bb) a political,
social, or other group
that endorses or
espouses terrorist
activity;
(V) is a member of a
terrorist organization
described in subclause (I) or
(II) of clause (vi);
(VI) is a member of a
terrorist organization
described in clause (vi)(III),
unless the alien can
demonstrate by clear and
convincing evidence that the
alien did not know, and should
not reasonably have known, that
the organization was a
terrorist organization;
(VII) endorses or espouses
terrorist activity or persuades
others to endorse or espouse
terrorist activity or support a
terrorist organization;
(VIII) has received military-
type training (as defined in
section 2339D(c)(1) of title
18, United States Code) from or
on behalf of any organization
that, at the time the training
was received, was a terrorist
organization (as defined in
clause (vi)); or
(IX) is the spouse or child
of an alien who is inadmissible
under this subparagraph, if the
activity causing the alien to
be found inadmissible occurred
within the last 5 years, is
inadmissible.
An alien who is an officer, official,
representative, or spokesman of the
Palestine Liberation Organization is
considered, for purposes of this Act,
to be engaged in a terrorist activity.
(ii) Exception.--Subclause (IX) of
clause (i) does not apply to a spouse
or child--
(I) who did not know or
should not reasonably have
known of the activity causing
the alien to be found
inadmissible under this
section; or
(II) whom the consular
officer or Attorney General has
reasonable grounds to believe
has renounced the activity
causing the alien to be found
inadmissible under this
section.
(iii) Terrorist activity defined.--As
used in this Act, the term ``terrorist
activity'' means any activity which is
unlawful under the laws of the place
where it is committed (or which, if it
had been committed in the United
States, would be unlawful under the
laws of the United States or any State)
and which involves any of the
following:
(I) The highjacking or
sabotage of any conveyance
(including an aircraft, vessel,
or vehicle).
(II) The seizing or
detaining, and threatening to
kill, injure, or continue to
detain, another individual in
order to compel a third person
(including a governmental
organization) to do or abstain
from doing any act as an
explicit or implicit condition
for the release of the
individual seized or detained.
(III) A violent attack upon
an internationally protected
person (as defined in section
1116(b)(4) of title 18, United
States Code) or upon the
liberty of such a person.
(IV) An assassination.
(V) The use of any--
(a) biological agent,
chemical agent, or
nuclear weapon or
device, or
(b) explosive,
firearm, or other
weapon or dangerous
device (other than for
mere personal monetary
gain),
with intent to endanger,
directly or indirectly, the
safety of one or more
individuals or to cause
substantial damage to property.
(VI) A threat, attempt, or
conspiracy to do any of the
foregoing.
(iv) Engage in terrorist activity
defined.--As used in this Act, the term
``engage in terrorist activity'' means,
in an individual capacity or as a
member of an organization--
(I) to commit or to incite to
commit, under circumstances
indicating an intention to
cause death or serious bodily
injury, a terrorist activity;
(II) to prepare or plan a
terrorist activity;
(III) to gather information
on potential targets for
terrorist activity;
(IV) to solicit funds or
other things of value for--
(aa) a terrorist
activity;
(bb) a terrorist
organization described
in clause (vi)(I) or
(vi)(II); or
(cc) a terrorist
organization described
in clause (vi)(III),
unless the solicitor
can demonstrate by
clear and convincing
evidence that he did
not know, and should
not reasonably have
known, that the
organization was a
terrorist organization;
(V) to solicit any
individual--
(aa) to engage in
conduct otherwise
described in this
subsection;
(bb) for membership
in a terrorist
organization described
in clause (vi)(I) or
(vi)(II); or
(cc) for membership
in a terrorist
organization described
in clause (vi)(III)
unless the solicitor
can demonstrate by
clear and convincing
evidence that he did
not know, and should
not reasonably have
known, that the
organization was a
terrorist organization;
or
(VI) to commit an act that
the actor knows, or reasonably
should know, affords material
support, including a safe
house, transportation,
communications, funds, transfer
of funds or other material
financial benefit, false
documentation or
identification, weapons
(including chemical,
biological, or radiological
weapons), explosives, or
training--
(aa) for the
commission of a
terrorist activity;
(bb) to any
individual who the
actor knows, or
reasonably should know,
has committed or plans
to commit a terrorist
activity;
(cc) to a terrorist
organization described
in subclause (I) or
(II) of clause (vi) or
to any member of such
an organization; or
(dd) to a terrorist
organization described
in clause (vi)(III), or
to any member of such
an organization, unless
the actor can
demonstrate by clear
and convincing evidence
that the actor did not
know, and should not
reasonably have known,
that the organization
was a terrorist
organization.
(v) Representative defined.--As used
in this paragraph, the term
``representative'' includes an officer,
official, or spokesman of an
organization, and any person who
directs, counsels, commands, or induces
an organization or its members to
engage in terrorist activity.
(vi) Terrorist organization
defined.--As used in this section, the
term ``terrorist organization'' means
an organization--
(I) designated under section
219;
(II) otherwise designated,
upon publication in the Federal
Register, by the Secretary of
State in consultation with or
upon the request of the
Attorney General or the
Secretary of Homeland Security,
as a terrorist organization,
after finding that the
organization engages in the
activities described in
subclauses (I) through (VI) of
clause (iv); or
(III) that is a group of two
or more individuals, whether
organized or not, which engages
in, or has a subgroup which
engages in, the activities
described in subclauses (I)
through (VI) of clause (iv).
(C) Foreign policy.--
(i) In general.--An alien whose entry
or proposed activities in the United
States the Secretary of State has
reasonable ground to believe would have
potentially serious adverse foreign
policy consequences for the United
States is inadmissible.
(ii) Exception for officials.--An
alien who is an official of a foreign
government or a purported government,
or who is a candidate for election to a
foreign government office during the
period immediately preceding the
election for that office, shall not be
excludable or subject to restrictions
or conditions on entry into the United
States under clause (i) solely because
of the alien's past, current, or
expected beliefs, statements, or
associations, if such beliefs,
statements, or associations would be
lawful within the United States.
(iii) Exception for other aliens.--An
alien, not described in clause (ii),
shall not be excludable or subject to
restrictions or conditions on entry
into the United States under clause (i)
because of the alien's past, current,
or expected beliefs, statements, or
associations, if such beliefs,
statements, or associations would be
lawful within the United States, unless
the Secretary of State personally
determines that the alien's admission
would compromise a compelling United
States foreign policy interest.
(iv) Notification of
determinations.--If a determination is
made under clause (iii) with respect to
an alien, the Secretary of State must
notify on a timely basis the chairmen
of the Committees on the Judiciary and
Foreign Affairs of the House of
Representatives and of the Committees
on the Judiciary and Foreign Relations
of the Senate of the identity of the
alien and the reasons for the
determination.
(D) Immigrant membership in totalitarian
party.--
(i) In general.--Any immigrant who is
or has been a member of or affiliated
with the Communist or any other
totalitarian party (or subdivision or
affiliate thereof), domestic or
foreign, is inadmissible.
(ii) Exception for involuntary
membership.--Clause (i) shall not apply
to an alien because of membership or
affiliation if the alien establishes to
the satisfaction of the consular
officer when applying for a visa (or to
the satisfaction of the Attorney
General when applying for admission)
that the membership or affiliation is
or was involuntary, or is or was solely
when under 16 years of age, by
operation of law, or for purposes of
obtaining employment, food rations, or
other essentials of living and whether
necessary for such purposes.
(iii) Exception for past
membership.--Clause (i) shall not apply
to an alien because of membership or
affiliation if the alien establishes to
the satisfaction of the consular
officer when applying for a visa (or to
the satisfaction of the Attorney
General when applying for admission)
that--
(I) the membership or
affiliation terminated at
least--
(a) 2 years before
the date of such
application, or
(b) 5 years before
the date of such
application, in the
case of an alien whose
membership or
affiliation was with
the party controlling
the government of a
foreign state that is a
totalitarian
dictatorship as of such
date, and
(II) the alien is not a
threat to the security of the
United States.
(iv) Exception for close family
members.--The Attorney General may, in
the Attorney General's discretion,
waive the application of clause (i) in
the case of an immigrant who is the
parent, spouse, son, daughter, brother,
or sister of a citizen of the United
States or a spouse, son, or daughter of
an alien lawfully admitted for
permanent residence for humanitarian
purposes, to assure family unity, or
when it is otherwise in the public
interest if the immigrant is not a
threat to the security of the United
States.
(E) Participants in nazi persecution,
genocide, or the commission of any act of
torture or extrajudicial killing.--
(i) Participation in nazi
persecutions.--Any alien who, during
the period beginning on March 23, 1933,
and ending on May 8, 1945, under the
direction of, or in association with--
(I) the Nazi government of
Germany,
(II) any government in any
area occupied by the military
forces of the Nazi government
of Germany,
(III) any government
established with the assistance
or cooperation of the Nazi
government of Germany, or
(IV) any government which was
an ally of the Nazi government
of Germany,
ordered, incited, assisted, or
otherwise participated in the
persecution of any person because of
race, religion, national origin, or
political opinion is inadmissible.
(ii) Participation in genocide.--Any
alien who ordered, incited, assisted,
or otherwise participated in genocide,
as defined in section 1091(a) of title
18, United States Code, is inadmissible
(iii) Commission of acts of torture
or extrajudicial killings.--Any alien
who, outside the United States, has
committed, ordered, incited, assisted,
or otherwise participated in the
commission of--
(I) any act of torture, as
defined in section 2340 of
title 18, United States Code;
or
(II) under color of law of
any foreign nation, any
extrajudicial killing, as
defined in section 3(a) of the
Torture Victim Protection Act
of 1991 (28 U.S.C. 1350 note),
is inadmissible.
(F) Association with terrorist
organizations.--Any alien who the Secretary of
State, after consultation with the Attorney
General, or the Attorney General, after
consultation with the Secretary of State,
determines has been associated with a terrorist
organization and intends while in the United
States to engage solely, principally, or
incidentally in activities that could endanger
the welfare, safety, or security of the United
States is inadmissible.
(G) Recruitment or use of child soldiers.--
Any alien who has engaged in the recruitment or
use of child soldiers in violation of section
2442 of title 18, United States Code, is
inadmissible.
(4) Public charge.--
(A) In general.--Any alien who, in the
opinion of the consular officer at the time of
application for a visa, or in the opinion of
the Attorney General at the time of application
for admission or adjustment of status, is
likely at any time to become a public charge is
inadmissible.
(B) Factors to be taken into account.--(i) In
determining whether an alien is inadmissible
under this paragraph, the consular officer or
the Attorney General shall at a minimum
consider the alien's--
(I) age;
(II) health;
(III) family status;
(IV) assets, resources, and financial
status; and
(V) education and skills.
(ii) In addition to the factors under clause
(i), the consular officer or the Attorney
General may also consider any affidavit of
support under section 213A for purposes of
exclusion under this paragraph.
(C) Family-sponsored immigrants.--Any alien
who seeks admission or adjustment of status
under a visa number issued under section
201(b)(2) or 203(a) is inadmissible under this
paragraph unless--
(i) the alien has obtained--
(I) status as a spouse or a
child of a United States
citizen pursuant to clause
(ii), (iii), or (iv) of section
204(a)(1)(A), or
(II) classification pursuant
to clause (ii) or (iii) of
section 204(a)(1)(B); or
(III) classification or
status as a VAWA self-
petitioner; or
(ii) the person petitioning for the
alien's admission (and any additional
sponsor required under section 213A(f)
or any alternative sponsor permitted
under paragraph (5)(B) of such section)
has executed an affidavit of support
described in section 213A with respect
to such alien.
(D) Certain employment-based immigrants.--Any
alien who seeks admission or adjustment of
status under a visa number issued under section
203(b) by virtue of a classification petition
filed by a relative of the alien (or by an
entity in which such relative has a significant
ownership interest) is inadmissible under this
paragraph unless such relative has executed an
affidavit of support described in section 213A
with respect to such alien.
(E) Special rule for qualified alien
victims.--Subparagraphs (A), (B), and (C) shall
not apply to an alien who--
(i) is a VAWA self-petitioner;
(ii) is an applicant for, or is
granted, nonimmigrant status under
section 101(a)(15)(U); or
(iii) is a qualified alien described
in section 431(c) of the Personal
Responsibility and Work Opportunity
Reconciliation Act of 1996 (8 U.S.C.
1641(c)).
(5) Labor certification and qualifications for
certain immigrants.--
(A) Labor certification.--
(i) In general.--Any alien who seeks
to enter the United States for the
purpose of performing skilled or
unskilled labor is inadmissible, unless
the Secretary of Labor has determined
and certified to the Secretary of State
and the Attorney General that--
(I) there are not sufficient
workers who are able, willing,
qualified (or equally qualified
in the case of an alien
described in clause (ii)) and
available at the time of
application for a visa and
admission to the United States
and at the place where the
alien is to perform such
skilled or unskilled labor, and
(II) the employment of such
alien will not adversely affect
the wages and working
conditions of workers in the
United States similarly
employed.
(ii) Certain aliens subject to
special rule.--For purposes of clause
(i)(I), an alien described in this
clause is an alien who--
(I) is a member of the
teaching profession, or
(II) has exceptional ability
in the sciences or the arts.
(iii) Professional athletes.--
(I) In general.--A
certification made under clause
(i) with respect to a
professional athlete shall
remain valid with respect to
the athlete after the athlete
changes employer, if the new
employer is a team in the same
sport as the team which
employed the athlete when the
athlete first applied for the
certification.
(II) Definition.--For
purposes of subclause (I), the
term ``professional athlete''
means an individual who is
employed as an athlete by--
(aa) a team that is a
member of an
association of 6 or
more professional
sports teams whose
total combined revenues
exceed $10,000,000 per
year, if the
association governs the
conduct of its members
and regulates the
contests and
exhibitions in which
its member teams
regularly engage; or
(bb) any minor league
team that is affiliated
with such an
association.
(iv) Long delayed adjustment
applicants.--A certification made under
clause (i) with respect to an
individual whose petition is covered by
section 204(j) shall remain valid with
respect to a new job accepted by the
individual after the individual changes
jobs or employers if the new job is in
the same or a similar occupational
classification as the job for which the
certification was issued.
(B) Unqualified physicians.--An alien who is
a graduate of a medical school not accredited
by a body or bodies approved for the purpose by
the Secretary of Education (regardless of
whether such school of medicine is in the
United States) and who is coming to the United
States principally to perform services as a
member of the medical profession is
inadmissible, unless the alien (i) has passed
parts I and II of the National Board of Medical
Examiners Examination (or an equivalent
examination as determined by the Secretary of
Health and Human Services) and (ii) is
competent in oral and written English. For
purposes of the previous sentence, an alien who
is a graduate of a medical school shall be
considered to have passed parts I and II of the
National Board of Medical Examiners if the
alien was fully and permanently licensed to
practice medicine in a State on January 9,
1978, and was practicing medicine in a State on
that date.
(C) Uncertified foreign health-care
workers.--Subject to subsection (r), any alien
who seeks to enter the United States for the
purpose of performing labor as a health-care
worker, other than a physician, is inadmissible
unless the alien presents to the consular
officer, or, in the case of an adjustment of
status, the Attorney General, a certificate
from the Commission on Graduates of Foreign
Nursing Schools, or a certificate from an
equivalent independent credentialing
organization approved by the Attorney General
in consultation with the Secretary of Health
and Human Services, verifying that--
(i) the alien's education, training,
license, and experience--
(I) meet all applicable
statutory and regulatory
requirements for entry into the
United States under the
classification specified in the
application;
(II) are comparable with that
required for an American
health-care worker of the same
type; and
(III) are authentic and, in
the case of a license,
unencumbered;
(ii) the alien has the level of
competence in oral and written English
considered by the Secretary of Health
and Human Services, in consultation
with the Secretary of Education, to be
appropriate for health care work of the
kind in which the alien will be
engaged, as shown by an appropriate
score on one or more nationally
recognized, commercially available,
standardized assessments of the
applicant's ability to speak and write;
and
(iii) if a majority of States
licensing the profession in which the
alien intends to work recognize a test
predicting the success on the
profession's licensing or certification
examination, the alien has passed such
a test or has passed such an
examination.
For purposes of clause (ii), determination of
the standardized tests required and of the
minimum scores that are appropriate are within
the sole discretion of the Secretary of Health
and Human Services and are not subject to
further administrative or judicial review.
(D) Application of grounds.--The grounds for
inadmissibility of aliens under subparagraphs
(A) and (B) shall apply to immigrants seeking
admission or adjustment of status under
paragraph (2) or (3) of section 203(b).
(6) Illegal entrants and immigration violators.--
(A) Aliens present without admission or
parole.--
(i) In general.--An alien present in
the United States without being
admitted or paroled, or who arrives in
the United States at any time or place
other than as designated by the
Attorney General, is inadmissible.
(ii) Exception for certain battered
women and children.--Clause (i) shall
not apply to an alien who demonstrates
that--
(I) the alien is a VAWA self-
petitioner;
(II)(a) the alien has been
battered or subjected to
extreme cruelty by a spouse or
parent, or by a member of the
spouse's or parent's family
residing in the same household
as the alien and the spouse or
parent consented or acquiesced
to such battery or cruelty, or
(b) the alien's child has been
battered or subjected to
extreme cruelty by a spouse or
parent of the alien (without
the active participation of the
alien in the battery or
cruelty) or by a member of the
spouse's or parent's family
residing in the same household
as the alien when the spouse or
parent consented to or
acquiesced in such battery or
cruelty and the alien did not
actively participate in such
battery or cruelty, and
(III) there was a substantial
connection between the battery
or cruelty described in
subclause (I) or (II) and the
alien's unlawful entry into the
United States.
(B) Failure to attend removal proceeding.--
Any alien who without reasonable cause fails or
refuses to attend or remain in attendance at a
proceeding to determine the alien's
inadmissibility or deportability and who seeks
admission to the United States within 5 years
of such alien's subsequent departure or removal
is inadmissible.
(C) Misrepresentation.--
(i) In general.--Any alien who, by
fraud or willfully misrepresenting a
material fact, seeks to procure (or has
sought to procure or has procured) a
visa, other documentation, or admission
into the United States or other benefit
provided under this Act is
inadmissible.
(ii) Falsely claiming citizenship.--
(I) In general.--Any alien
who falsely represents, or has
falsely represented, himself or
herself to be a citizen of the
United States for any purpose
or benefit under this Act
(including section 274A) or any
other Federal or State law is
inadmissible.
(II) Exception.--In the case
of an alien making a
representation described in
subclause (I), if each natural
parent of the alien (or, in the
case of an adopted alien, each
adoptive parent of the alien)
is or was a citizen (whether by
birth or naturalization), the
alien permanently resided in
the United States prior to
attaining the age of 16, and
the alien reasonably believed
at the time of making such
representation that he or she
was a citizen, the alien shall
not be considered to be
inadmissible under any
provision of this subsection
based on such representation.
(iii) Waiver authorized.--For
provision authorizing waiver of clause
(i), see subsection (i).
(D) Stowaways.--Any alien who is a stowaway
is inadmissible.
(E) Smugglers.--
(i) In general.--Any alien who at any
time knowingly has encouraged, induced,
assisted, abetted, or aided any other
alien to enter or to try to enter the
United States in violation of law is
inadmissible.
(ii) Special rule in the case of
family reunification.--Clause (i) shall
not apply in the case of alien who is
an eligible immigrant (as defined in
section 301(b)(1) of the Immigration
Act of 1990), was physically present in
the United States on May 5, 1988, and
is seeking admission as an immediate
relative or under section 203(a)(2)
(including under section 112 of the
Immigration Act of 1990) or benefits
under section 301(a) of the Immigration
Act of 1990 if the alien, before May 5,
1988, has encouraged, induced,
assisted, abetted, or aided only the
alien's spouse, parent, son, or
daughter (and no other individual) to
enter the United States in violation of
law.
(iii) Waiver authorized.--For
provision authorizing waiver of clause
(i), see subsection (d)(11).
(F) Subject of civil penalty.--
(i) In general.--An alien who is the
subject of a final order for violation
of section 274C is inadmissible.
(ii) Waiver authorized.--For
provision authorizing waiver of clause
(i), see subsection (d)(12).
(G) Student visa abusers.--An alien who
obtains the status of a nonimmigrant under
section 101(a)(15)(F)(i) and who violates a
term or condition of such status under section
214(l) is inadmissible until the alien has been
outside the United States for a continuous
period of 5 years after the date of the
violation.
(7) Documentation requirements.--
(A) Immigrants.--
(i) In general.--Except as otherwise
specifically provided in this Act, any
immigrant at the time of application
for admission--
(I) who is not in possession
of a valid unexpired immigrant
visa, reentry permit, border
crossing identification card,
or other valid entry document
required by this Act, and a
valid unexpired passport, or
other suitable travel document,
or document of identity and
nationality if such document is
required under the regulations
issued by the Attorney General
under section 211(a), or
(II) whose visa has been
issued without compliance with
the provisions of section 203,
is inadmissible.
(ii) Waiver authorized.--For
provision authorizing waiver of clause
(i), see subsection (k).
(B) Nonimmigrants.--
(i) In general.--Any nonimmigrant
who--
(I) is not in possession of a
passport valid for a minimum of
six months from the date of the
expiration of the initial
period of the alien's admission
or contemplated initial period
of stay authorizing the alien
to return to the country from
which the alien came or to
proceed to and enter some other
country during such period, or
(II) is not in possession of
a valid nonimmigrant visa or
border crossing identification
card at the time of application
for admission,
is inadmissible.
(ii) General waiver authorized.--For
provision authorizing waiver of clause
(i), see subsection (d)(4).
(iii) Guam and northern mariana
islands visa waiver.--For provision
authorizing waiver of clause (i) in the
case of visitors to Guam or the
Commonwealth of the Northern Mariana
Islands, see subsection (l).
(iv) Visa waiver program.--For
authority to waive the requirement of
clause (i) under a program, see section
217.
(8) Ineligible for citizenship.--
(A) In general.--Any immigrant who is
permanently ineligible to citizenship is
inadmissible.
(B) Draft evaders.--Any person who has
departed from or who has remained outside the
United States to avoid or evade training or
service in the armed forces in time of war or a
period declared by the President to be a
national emergency is inadmissible, except that
this subparagraph shall not apply to an alien
who at the time of such departure was a
nonimmigrant and who is seeking to reenter the
United States as a nonimmigrant.
(9) Aliens previously removed.--
(A) Certain aliens previously removed.--
(i) Arriving aliens.--Any alien who
has been ordered removed under section
235(b)(1) or at the end of proceedings
under section 240 initiated upon the
alien's arrival in the United States
and who again seeks admission within 5
years of the date of such removal (or
within 20 years in the case of a second
or subsequent removal or at any time in
the case of an alien convicted of an
aggravated felony) is inadmissible.
(ii) Other aliens.--Any alien not
described in clause (i) who--
(I) has been ordered removed
under section 240 or any other
provision of law, or
(II) departed the United
States while an order of
removal was outstanding,
and who seeks admission within 10 years
of the date of such alien's departure
or removal (or within 20 years of such
date in the case of a second or
subsequent removal or at any time in
the case of an alien convicted of an
aggravated felony) is inadmissible.
(iii) Exception.--Clauses (i) and
(ii) shall not apply to an alien
seeking admission within a period if,
prior to the date of the alien's
reembarkation at a place outside the
United States or attempt to be admitted
from foreign contiguous territory, the
Attorney General has consented to the
alien's reapplying for admission.
(B) Aliens unlawfully present.--
(i) In general.--Any alien (other
than an alien lawfully admitted for
permanent residence) who--
(I) was unlawfully present in
the United States for a period
of more than 180 days but less
than 1 year, voluntarily
departed the United States
(whether or not pursuant to
section 244(e)) prior to the
commencement of proceedings
under section 235(b)(1) or
section 240, and again seeks
admission within 3 years of the
date of such alien's departure
or removal, or
(II) has been unlawfully
present in the United States
for one year or more, and who
again seeks admission within 10
years of the date of such
alien's departure or removal
from the United States,
is inadmissible.
(ii) Construction of unlawful
presence.--For purposes of this
paragraph, an alien is deemed to be
unlawfully present in the United States
if the alien is present in the United
States after the expiration of the
period of stay authorized by the
Attorney General or is present in the
United States without being admitted or
paroled.
(iii) Exceptions.--
(I) Minors.--No period of
time in which an alien is under
18 years of age shall be taken
into account in determining the
period of unlawful presence in
the United States under clause
(i).
(II) Asylees.--No period of
time in which an alien has a
bona fide application for
asylum pending under section
208 shall be taken into account
in determining the period of
unlawful presence in the United
States under clause (i) unless
the alien during such period
was employed without
authorization in the United
States.
(III) Family unity.--No
period of time in which the
alien is a beneficiary of
family unity protection
pursuant to section 301 of the
Immigration Act of 1990 shall
be taken into account in
determining the period of
unlawful presence in the United
States under clause (i).
(IV) Battered women and
children.--Clause (i) shall not
apply to an alien who would be
described in paragraph
(6)(A)(ii) if ``violation of
the terms of the alien's
nonimmigrant visa'' were
substituted for ``unlawful
entry into the United States''
in subclause (III) of that
paragraph.
(V) Victims of a severe form of trafficking
in persons.--Clause (i) shall not apply to an
alien who demonstrates that the severe form of
trafficking (as that term is defined in section
103 of the Trafficking Victims Protection Act
of 2000 (22 U.S.C. 7102)) was at least one
central reason for the alien's unlawful
presence in the United States.
(iv) Tolling for good cause.--In the
case of an alien who--
(I) has been lawfully
admitted or paroled into the
United States,
(II) has filed a nonfrivolous
application for a change or
extension of status before the
date of expiration of the
period of stay authorized by
the Attorney General, and
(III) has not been employed
without authorization in the
United States before or during
the pendency of such
application,
the calculation of the period of time
specified in clause (i)(I) shall be
tolled during the pendency of such
application, but not to exceed 120
days.
(v) Waiver.--The Attorney General has
sole discretion to waive clause (i) in
the case of an immigrant who is the
spouse or son or daughter of a United
States citizen or of an alien lawfully
admitted for permanent residence, if it
is established to the satisfaction of
the Attorney General that the refusal
of admission to such immigrant alien
would result in extreme hardship to the
citizen or lawfully resident spouse or
parent of such alien. No court shall
have jurisdiction to review a decision
or action by the Attorney General
regarding a waiver under this clause.
(C) Aliens unlawfully present after previous
immigration violations.--
(i) In general.--Any alien who--
(I) has been unlawfully
present in the United States
for an aggregate period of more
than 1 year, or
(II) has been ordered removed
under section 235(b)(1),
section 240, or any other
provision of law,
and who enters or attempts to reenter
the United States without being
admitted is inadmissible.
(ii) Exception.--Clause (i) shall not
apply to an alien seeking admission
more than 10 years after the date of
the alien's last departure from the
United States if, prior to the alien's
reembarkation at a place outside the
United States or attempt to be
readmitted from a foreign contiguous
territory, the Secretary of Homeland
Security has consented to the alien's
reapplying for admission.
(iii) Waiver.--The Secretary of
Homeland Security may waive the
application of clause (i) in the case
of an alien who is a VAWA self-
petitioner if there is a connection
between--
(I) the alien's battering or
subjection to extreme cruelty;
and
(II) the alien's removal,
departure from the United
States, reentry or reentries
into the United States; or
attempted reentry into the
United States.
(10) Miscellaneous.--
(A) Practicing polygamists.--Any immigrant
who is coming to the United States to practice
polygamy is inadmissible.
(B) Guardian required to accompany helpless
alien.--Any alien--
(i) who is accompanying another alien
who is inadmissible and who is
certified to be helpless from sickness,
mental or physical disability, or
infancy pursuant to section 232(c), and
(ii) whose protection or guardianship
is determined to be required by the
alien described in clause (i),
is inadmissible.
(C) International child abduction.--
(i) In general.--Except as provided
in clause (ii), any alien who, after
entry of an order by a court in the
United States granting custody to a
person of a United States citizen child
who detains or retains the child, or
withholds custody of the child, outside
the United States from the person
granted custody by that order, is
inadmissible until the child is
surrendered to the person granted
custody by that order.
(ii) Aliens supporting abductors and
relatives of abductors.--Any alien
who--
(I) is known by the Secretary
of State to have intentionally
assisted an alien in the
conduct described in clause
(i),
(II) is known by the
Secretary of State to be
intentionally providing
material support or safe haven
to an alien described in clause
(i), or
(III) is a spouse (other than
the spouse who is the parent of
the abducted child), child
(other than the abducted
child), parent, sibling, or
agent of an alien described in
clause (i), if such person has
been designated by the
Secretary of State at the
Secretary's sole and
unreviewable discretion, is
inadmissible until the child
described in clause (i) is
surrendered to the person
granted custody by the order
described in that clause, and
such person and child are
permitted to return to the
United States or such person's
place of residence.
(iii) Exceptions.--Clauses (i) and
(ii) shall not apply--
(I) to a government official
of the United States who is
acting within the scope of his
or her official duties;
(II) to a government official
of any foreign government if
the official has been
designated by the Secretary of
State at the Secretary's sole
and unreviewable discretion; or
(III) so long as the child is
located in a foreign state that
is a party to the Convention on
the Civil Aspects of
International Child Abduction,
done at The Hague on October
25, 1980.
(D) Unlawful voters.--
(i) In general.--Any alien who has
voted in violation of any Federal,
State, or local constitutional
provision, statute, ordinance, or
regulation is inadmissible.
(ii) Exception.--In the case of an
alien who voted in a Federal, State, or
local election (including an
initiative, recall, or referendum) in
violation of a lawful restriction of
voting to citizens, if each natural
parent of the alien (or, in the case of
an adopted alien, each adoptive parent
of the alien) is or was a citizen
(whether by birth or naturalization),
the alien permanently resided in the
United States prior to attaining the
age of 16, and the alien reasonably
believed at the time of such violation
that he or she was a citizen, the alien
shall not be considered to be
inadmissible under any provision of
this subsection based on such
violation.
(E) Former citizens who renounced citizenship
to avoid taxation.--Any alien who is a former
citizen of the United States who officially
renounces United States citizenship and who is
determined by the Attorney General to have
renounced United States citizenship for the
purpose of avoiding taxation by the United
States is inadmissible.
(b) Notices of Denials.--
(1) Subject to paragraphs (2) and (3), if an alien's
application for a visa, for admission to the United
States, or for adjustment of status is denied by an
immigration or consular officer because the officer
determines the alien to be inadmissible under
subsection (a), the officer shall provide the alien
with a timely written notice that--
(A) states the determination, and
(B) lists the specific provision or
provisions of law under which the alien is
excludable or ineligible for entry or
adjustment of status.
(2) The Secretary of State may waive the requirements
of paragraph (1) with respect to a particular alien or
any class or classes of inadmissible aliens.
(3) Paragraph (1) does not apply to any alien
inadmissible under paragraph (2) or (3) of subsection
(a).
(d)(1) The Attorney General shall determine whether a ground
for inadmissible exists with respect to a nonimmigrant
described in section 101(a)(15)(S). The Attorney General, in
the Attorney General's discretion, may waive the application of
subsection (a) (other than paragraph (3)(E)) in the case of a
nonimmigrant described in section 101(a)(15)(S), if the
Attorney General considers it to be in the national interest to
do so. Nothing in this section shall be regarded as prohibiting
the Immigration and Naturalization Service from instituting
removal proceedings against an alien admitted as a nonimmigrant
under section 101(a)(15)(S) for conduct committed after the
alien's admission into the United States, or for conduct or a
condition that was not disclosed to the Attorney General prior
to the alien's admission as a nonimmigrant under section
101(a)(15)(S).
(3)(A) Except as provided in this subsection, an alien (i)
who is applying for a nonimmigrant visa and is known or
believed by the consular officer to be ineligible for such visa
under subsection (a) (other than paragraphs (3)(A)(i)(I),
(3)(A)(ii), (3)(A)(iii), (3)(C), and clauses (i) and (ii) of
paragraph (3)(E) of such subsection), may, after approval by
the Attorney General of a recommendation by the Secretary of
State or by the consular officer that the alien be admitted
temporarily despite his inadmissibility, be granted such a visa
and may be admitted into the United States temporarily as a
nonimmigrant in the discretion of the Attorney General, or (ii)
who is inadmissible under subsection (a) (other than paragraphs
(3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), and clauses (i)
and (ii) of paragraph (3)(E) of such subsection), but who is in
possession of appropriate documents or is granted a waiver
thereof and is seeking admission, may be admitted into the
United States temporarily as a nonimmigrant in the discretion
of the Attorney General. The Attorney General shall prescribe
conditions, including exaction of such bonds as may be
necessary, to control and regulate the admission and return of
inadmissible aliens applying for temporary admission under this
paragraph.
(B)(i) The Secretary of State, after consultation with the
Attorney General and the Secretary of Homeland Security, or the
Secretary of Homeland Security, after consultation with the
Secretary of State and the Attorney General, may determine in
such Secretary's sole unreviewable discretion that subsection
(a)(3)(B) shall not apply with respect to an alien within the
scope of that subsection or that subsection (a)(3)(B)(vi)(III)
shall not apply to a group within the scope of that subsection,
except that no such waiver may be extended to an alien who is
within the scope of subsection (a)(3)(B)(i)(II), no such waiver
may be extended to an alien who is a member or representative
of, has voluntarily and knowingly engaged in or endorsed or
espoused or persuaded others to endorse or espouse or support
terrorist activity on behalf of, or has voluntarily and
knowingly received military-type training from a terrorist
organization that is described in subclause (I) or (II) of
subsection (a)(3)(B)(vi), and no such waiver may be extended to
a group that has engaged terrorist activity against the United
States or another democratic country or that has purposefully
engaged in a pattern or practice of terrorist activity that is
directed at civilians. Such a determination shall neither
prejudice the ability of the United States Government to
commence criminal or civil proceedings involving a beneficiary
of such a determination or any other person, nor create any
substantive or procedural right or benefit for a beneficiary of
such a determination or any other person. Notwithstanding any
other provision of law (statutory or nonstatutory), including
section 2241 of title 28, or any other habeas corpus provision,
and sections 1361 and 1651 of such title, no court shall have
jurisdiction to review such a determination or revocation
except in a proceeding for review of a final order of removal
pursuant to section 1252 of this title, and review shall be
limited to the extent provided in section 1252(a)(2)(D). The
Secretary of State may not exercise the discretion provided in
this clause with respect to an alien at any time during which
the alien is the subject of pending removal proceedings under
section 1229a of this title.
(ii) Not later than 90 days after the end of each fiscal
year, the Secretary of State and the Secretary of Homeland
Security shall each provide to the Committees on the Judiciary
of the House of Representatives and of the Senate, the
Committee on International Relations of the House of
Representatives, the Committee on Foreign Relations of the
Senate, and the Committee on Homeland Security of the House of
Representatives a report on the aliens to whom such Secretary
has applied clause (i). Within one week of applying clause (i)
to a group, the Secretary of State or the Secretary of Homeland
Security shall provide a report to such Committees.
(4) Either or both of the requirements of paragraph (7)(B)(i)
of subsection (a) may be waived by the Attorney General and the
Secretary of State acting jointly (A) on the basis of
unforeseen emergency in individual cases, or (B) on the basis
of reciprocity with respect to nationals of foreign contiguous
territory or of adjacent islands and residents thereof having a
common nationality with such nationals, or (C) in the case of
aliens proceeding in immediate and continuous transit through
the United States under contracts authorized in section 238(c).
(5)(A) The Attorney General may, except as provided in
subparagraph (B) or in section 214(f), in his discretion parole
into the United States temporarily under such conditions as he
may prescribe only on a case-by-case basis for urgent
humanitarian reasons or significant public benefit any alien
applying for admission to the United States, but such parole of
such alien shall not be regarded as an admission of the alien
and when the purposes of such parole shall, in the opinion of
the Attorney General, have been served the alien shall
forthwith return or be returned to the custody from which he
was paroled and thereafter his case shall continue to be dealt
with in the same manner as that of any other applicant for
admission to the United States.
(B) The Attorney General may not parole into the United
States an alien who is a refugee unless the Attorney General
determines that compelling reasons in the public interest with
respect to that particular alien require that the alien be
paroled into the United States rather than be admitted as a
refugee under section 207.
(7) The provisions of subsection (a) (other than paragraph
(7)) shall be applicable to any alien who shall leave Guam, the
Commonwealth of the Northern Mariana Islands, Puerto Rico, or
the Virgin Islands of the United States, and who seeks to enter
the continental United States or any other place under the
jurisdiction of the United States. Any alien described in this
paragraph, who is denied admission to the United States, shall
be immediately removed in the manner provided by section 241(c)
of this Act.
(8) Upon a basis of reciprocity accredited officials of
foreign governments, their immediate families, attendants,
servants, and personal employees may be admitted in immediate
and continuous transit through the United States without regard
to the provisions of this section except paragraphs (3)(A),
(3)(B), (3)(C), and (7)(B) of subsection (a) of this section.
(11) The Attorney General may, in his discretion for
humanitarian purposes, to assure family unity, or when it is
otherwise in the public interest, waive application of clause
(i) of subsection (a)(6)(E) in the case of any alien lawfully
admitted for permanent residence who temporarily proceeded
abroad voluntarily and not under an order of removal, and who
is otherwise admissible to the United States as a returning
resident under section 211(b) and in the case of an alien
seeking admission or adjustment of status as an immediate
relative or immigrant under section 203(a) (other than
paragraph (4) thereof), if the alien has encouraged, induced,
assisted, abetted, or aided only an individual who at the time
of such action was the alien's spouse, parent, son, or daughter
(and no other individual) to enter the United States in
violation of law.
(12) The Attorney General may, in the discretion of the
Attorney General for humanitarian purposes or to assure family
unity, waive application of clause (i) of subsection
(a)(6)(F)--
(A) in the case of an alien lawfully admitted for
permanent residence who temporarily proceeded abroad
voluntarily and not under an order of deportation or
removal and who is otherwise admissible to the United
States as a returning resident under section 211(b),
and
(B) in the case of an alien seeking admission or
adjustment of status under section 201(b)(2)(A) or
under section 203(a),
if no previous civil money penalty was imposed against the
alien under section 274C and the offense was committed solely
to assist, aid, or support the alien's spouse or child (and not
another individual). No court shall have jurisdiction to review
a decision of the Attorney General to grant or deny a waiver
under this paragraph.
(13)(A) The Secretary of Homeland Security shall determine
whether a ground for inadmissibility exists with respect to a
nonimmigrant described in section 101(a)(15)(T), except that
the ground for inadmissibility described in subsection (a)(4)
shall not apply with respect to such a nonimmigrant.
(B) In addition to any other waiver that may be available
under this section, in the case of a nonimmigrant described in
section 101(a)(15)(T), if the Secretary of Homeland Security
considers it to be in the national interest to do so, the
Secretary of Homeland Security, in the Attorney General's
discretion, may waive the application of--
(i) subsection (a)(1); and
(ii) any other provision of subsection (a) (excluding
paragraphs (3), (4), (10)(C), and (10(E)) if the
activities rendering the alien inadmissible under the
provision were caused by, or were incident to, the
victimization described in section 101(a)(15)(T)(i)(I).
(14) The Secretary of Homeland Security shall determine
whether a ground of inadmissibility exists with respect to a
nonimmigrant described in section 101(a)(15)(U). The Secretary
of Homeland Security, in the Attorney General's discretion, may
waive the application of subsection (a) (other than paragraph
(3)(E)) in the case of a nonimmigrant described in section
101(a)(15)(U), if the Secretary of Homeland Security considers
it to be in the public or national interest to do so.
(e) No person admitted under section 101(a)(15)(J) or
acquiring such status after admission (i) whose participation
in the program for which he came to the United States was
financed in whole or in part, directly or indirectly, by an
agency of the Government of the United States or by the
government of the country of his nationality or his last
residence, (ii) who at the time of admission or acquisition of
status under section 101(a)(15)(J) was a national or resident
of a country which the Director of the United States
Information Agency pursuant to regulations prescribed by him,
had designated as clearly requiring the services of persons
engaged in the field of specialized knowledge or skill in which
the alien was engaged, or (iii) who came to the United States
or acquired such status in order to receive graduate medical
education or training, shall be eligible to apply for an
immigrant visa, or for permanent residence, or for a
nonimmigrant visa under section 101(a)(15)(H) or section
101(a)(15)(L) until it is established that such person has
resided and been physically present in the country of his
nationality or his last residence for an aggregate of a least
two years following departure from the United States: Provided,
That upon the favorable recommendation of the Director,
pursuant to the request of an interested United States
Government agency (or, in the case of an alien described in
clause (iii), pursuant to the request of a State Department of
Public Health, or its equivalent), or of the Commissioner of
Immigration and Naturalization after he has determined that
departure from the United States would impose exceptional
hardship upon the alien's spouse or child (if such spouse or
child is a citizen of the United States or a lawfully resident
alien), or that the alien cannot return to the country of his
nationality or last residence because he would be subject to
persecution on account of race, religion, or political opinion,
the Attorney General may waive the requirement of such two-year
foreign residence abroad in the case of any alien whose
admission to the United States is found by the Attorney General
to be in the public interest except that in the case of a
waiver requested by a State Department of Public Health, or its
equivalent, or in the case of a waiver requested by an
interested United States Government agency on behalf of an
alien described in clause (iii), the waiver shall be subject to
the requirements of section 214(l): And provided further, That,
except in the case of an alien described in clause (iii), the
Attorney General may, upon the favorable recommendation of the
Director, waive such two-year foreign residence requirement in
any case in which the foreign country of the alien's
nationality or last residence has furnished the Director a
statement in writing that it has no objection to such waiver in
the case of such alien.
(f) Whenever the President finds that the entry of any aliens
or of any class of aliens into the United States would be
detrimental to the interests of the United States, he may by
proclamation, and for such period as he shall deem necessary,
suspend the entry of all aliens or any class of aliens as
immigrants or nonimmigrants, or impose on the entry of aliens
any restrictions he may deem to be appropriate. Whenever the
Attorney General finds that a commercial airline has failed to
comply with regulations of the Attorney General relating to
requirements of airlines for the detection of fraudulent
documents used by passengers traveling to the United States
(including the training of personnel in such detection), the
Attorney General may suspend the entry of some or all aliens
transported to the United States by such airline.
(g) The Attorney General may waive the application of--
(1) subsection (a)(1)(A)(i) in the case of any alien
who--
(A) is the spouse or the unmarried son or
daughter, or the minor unmarried lawfully
adopted child, of a United States citizen, or
of an alien lawfully admitted for permanent
residence, or of an alien who has been issued
an immigrant visa,
(B) has a son or daughter who is a United
States citizen, or an alien lawfully admitted
for permanent residence, or an alien who has
been issued an immigrant visa; or
(C) is a VAWA self-petitioner,
in accordance with such terms, conditions, and
controls, if any, including the giving of bond, as the
Attorney General, in the discretion of the Attorney
General after consultation with the Secretary of Health
and Human Services, may by regulation prescribe;
(2) subsection (a)(1)(A)(ii) in the case of any
alien--
(A) who receives vaccination against the
vaccine-preventable disease or diseases for
which the alien has failed to present
documentation of previous vaccination,
(B) for whom a civil surgeon, medical
officer, or panel physician (as those terms are
defined by section 34.2 of title 42 of the Code
of Federal Regulations) certifies, according to
such regulations as the Secretary of Health and
Human Services may prescribe, that such
vaccination would not be medically appropriate,
or
(C) under such circumstances as the Attorney
General provides by regulation, with respect to
whom the requirement of such a vaccination
would be contrary to the alien's religious
beliefs or moral convictions; or
(3) subsection (a)(1)(A)(iii) in the case of any
alien, in accordance with such terms, conditions, and
controls, if any, including the giving of bond, as the
Attorney General, in the discretion of the Attorney
General after consultation with the Secretary of Health
and Human Services, may by regulation prescribe.
(h) The Attorney General may, in his discretion, waive the
application of subparagraphs (A)(i)(I), (B), (D), and (E) of
subsection (a)(2) and subparagraph (A)(i)(II) of such
subsection insofar as it relates to a single offense of simple
possession of 30 grams or less of marijuana if--
(1)(A) in the case of any immigrant it is established
to the satisfaction of the Attorney General that--
(i) the alien is inadmissible only under
subparagraph (D)(i) or (D)(ii) of such
subsection or the activities for which the
alien is inadmissible occurred more than 15
years before the date of the alien's
application for a visa, admission, or
adjustment of status,
(ii) the admission to the United States of
such alien would not be contrary to the
national welfare, safety, or security of the
United States, and
(iii) the alien has been rehabilitated; or
(B) in the case of an immigrant who is the spouse,
parent, son, or daughter of a citizen of the United
States or an alien lawfully admitted for permanent
residence if it is established to the satisfaction of
the Attorney General that the alien's denial of
admission would result in extreme hardship to the
United States citizen or lawfully resident spouse,
parent, son, or daughter of such alien; or
(C) the alien is a VAWA self-petitioner; and
(2) the Attorney General, in his discretion, and
pursuant to such terms, conditions and procedures as he
may by regulations prescribe, has consented to the
alien's applying or reapplying for a visa, for
admission to the United States, or adjustment of
status.
No waiver shall be provided under this subsection in the case
of an alien who has been convicted of (or who has admitted
committing acts that constitute) murder or criminal acts
involving torture, or an attempt or conspiracy to commit murder
or a criminal act involving torture. No waiver shall be granted
under this subsection in the case of an alien who has
previously been admitted to the United States as an alien
lawfully admitted for permanent residence if either since the
date of such admission the alien has been convicted of an
aggravated felony or the alien has not lawfully resided
continuously in the United States for a period of not less than
7 years immediately preceding the date of initiation of
proceedings to remove the alien from the United States. No
court shall have jurisdiction to review a decision of the
Attorney General to grant or deny a waiver under this
subsection.
(i)(1) The Attorney General may, in the discretion of the
Attorney General, waive the application of clause (i) of
subsection (a)(6)(C) in the case of an immigrant who is the
spouse, son, or daughter of a United States citizen or of an
alien lawfully admitted for permanent residence if it is
established to the satisfaction of the Attorney General that
the refusal of admission to the United States of such immigrant
alien would result in extreme hardship to the citizen or
lawfully resident spouse or parent of such an alien or, in the
case of a VAWA self-petitioner, the alien demonstrates extreme
hardship to the alien or the alien's United States citizen,
lawful permanent resident, or qualified alien parent or child.
(2) No court shall have jurisdiction to review a decision or
action of the Attorney General regarding a waiver under
paragraph (1).
(j)(1) The additional requirements referred to in section
101(a)(15)(J) for an alien who is coming to the United States
under a program under which he will receive graduate medical
education or training are as follows:
(A) A school of medicine or of one of the other
health professions, which is accredited by a body or
bodies approved for the purpose by the Secretary of
Education, has agreed in writing to provide the
graduate medical education or training under the
program for which the alien is coming to the United
States or to assume responsibility for arranging for
the provision thereof by an appropriate public or
nonprofit private institution or agency, except that,
in the case of such an agreement by a school of
medicine, any one or more of its affiliated hospitals
which are to participate in the provision of the
graduate medical education or training must join in the
agreement.
(B) Before making such agreement, the accredited
school has been satisfied that the alien (i) is a
graduate of a school of medicine which is accredited by
a body or bodies approved for the purpose by the
Secretary of Education (regardless of whether such
school of medicine is in the United States); or (ii)(I)
has passed parts I and II of the National Board of
Medical Examiners Examination (or an equivalent
examination as determined by the Secretary of Health
and Human Services), (II) has competency in oral and
written English, (III) will be able to adapt to the
educational and cultural environment in which he will
be receiving his education or training, and (IV) has
adequate prior education and training to participate
satisfactorily in the program for which he is coming to
the United States. For the purposes of this
subparagraph, an alien who is a graduate of a medical
school shall be considered to have passed parts I and
II of the National Board of Medical Examiners
examination if the alien was fully and permanently
licensed to practice medicine in a State on January 9,
1978, and was practicing medicine in a State on that
date.
(C) The alien has made a commitment to return to the
country of his nationality or last residence upon
completion of the education or training for which he is
coming to the United States, and the government of the
country of his nationality or last residence has
provided a written assurance, satisfactory to the
Secretary of Health and Human Services, that there is a
need in that country for persons with the skills the
alien will acquire in such education or training.
(D) The duration of the alien's participation in the
program of graduate medical education or training for
which the alien is coming to the United States is
limited to the time typically required to complete such
program, as determined by the Director of the United
States Information Agency at the time of the alien's
admission into the United States, based on criteria
which are established in coordination with the
Secretary of Health and Human Services and which take
into consideration the published requirements of the
medical specialty board which administers such
education or training program; except that--
(i) such duration is further limited to seven
years unless the alien has demonstrated to the
satisfaction of the Director that the country
to which the alien will return at the end of
such specialty education or training has an
exceptional need for an individual trained in
such specialty, and
(ii) the alien may, once and not later than
two years after the date the alien is admitted
to the United States as an exchange visitor or
acquires exchange visitor status, change the
alien's designated program of graduate medical
education or training if the Director approves
the change and if a commitment and written
assurance with respect to the alien's new
program have been provided in accordance with
subparagraph (C).
(E) The alien furnishes the Attorney General each
year with an affidavit (in such form as the Attorney
General shall prescribe) that attests that the alien
(i) is in good standing in the program of graduate
medical education or training in which the alien is
participating, and (ii) will return to the country of
his nationality or last residence upon completion of
the education or training for which he came to the
United States.
(2) An alien who is a graduate of a medical school and who is
coming to the United States to perform services as a member of
the medical profession may not be admitted as a nonimmigrant
under section 101(a)(15)(H)(i)(b) unless--
(A) the alien is coming pursuant to an invitation
from a public or nonprofit private educational or
research institution or agency in the United States to
teach or conduct research, or both, at or for such
institution or agency, or
(B)(i) the alien has passed the Federation licensing
examination (administered by the Federation of State
Medical Boards of the United States) or an equivalent
examination as determined by the Secretary of Health
and Human Services, and
(ii)(I) has competency in oral and written English or
(II) is a graduate of a school of medicine which is
accredited by a body or bodies approved for the purpose
by the Secretary of Education (regardless of whether
such school of medicine is in the United States).
(3) The Director of the United States Information Agency
annually shall transmit to the Congress a report on aliens who
have submitted affidavits described in paragraph (1)(E), and
shall include in such report the name and address of each such
alien, the medical education or training program in which such
alien is participating, and the status of such alien in that
program.
(k) Any alien, inadmissible from the United States under
paragraph (5)(A) or (7)(A)(i) of subsection (a), who is in
possession of an immigrant visa may, if otherwise admissible,
be admitted in the discretion of the Attorney General if the
Attorney General is satisfied that inadmissibility was not
known to, and could not have been ascertained by the exercise
of reasonable diligence by, the immigrant before the time of
departure of the vessel or aircraft from the last port outside
the United States and outside foreign contiguous territory or,
in the case of an immigrant coming from foreign contiguous
territory, before the time of the immigrant's application for
admission.
(l) Guam and Northern Mariana Islands Visa Waiver Program.--
(1) In general.--The requirement of subsection
(a)(7)(B)(i) may be waived by the Secretary of Homeland
Security, in the case of an alien applying for
admission as a nonimmigrant visitor for business or
pleasure and solely for entry into and stay in Guam or
the Commonwealth of the Northern Mariana Islands for a
period not to exceed 45 days, if the Secretary of
Homeland Security, after consultation with the
Secretary of the Interior, the Secretary of State, the
Governor of Guam and the Governor of the Commonwealth
of the Northern Mariana Islands, determines that--
(A) an adequate arrival and departure control
system has been developed in Guam and the
Commonwealth of the Northern Mariana Islands;
and
(B) such a waiver does not represent a threat
to the welfare, safety, or security of the
United States or its territories and
commonwealths.
(2) Alien waiver of rights.--An alien may not be
provided a waiver under this subsection unless the
alien has waived any right--
(A) to review or appeal under this Act an
immigration officer's determination as to the
admissibility of the alien at the port of entry
into Guam or the Commonwealth of the Northern
Mariana Islands; or
(B) to contest, other than on the basis of an
application for withholding of removal under
section 241(b)(3) of this Act or under the
Convention Against Torture, or an application
for asylum if permitted under section 208, any
action for removal of the alien.
(3) Regulations.--All necessary regulations to
implement this subsection shall be promulgated by the
Secretary of Homeland Security, in consultation with
the Secretary of the Interior and the Secretary of
State, on or before the 180th day after the date of
enactment of the Consolidated Natural Resources Act of
2008. The promulgation of such regulations shall be
considered a foreign affairs function for purposes of
section 553(a) of title 5, United States Code. At a
minimum, such regulations should include, but not
necessarily be limited to--
(A) a listing of all countries whose
nationals may obtain the waiver also provided
by this subsection, except that such
regulations shall provide for a listing of any
country from which the Commonwealth has
received a significant economic benefit from
the number of visitors for pleasure within the
one-year period preceding the date of enactment
of the Consolidated Natural Resources Act of
2008, unless the Secretary of Homeland Security
determines that such country's inclusion on
such list would represent a threat to the
welfare, safety, or security of the United
States or its territories; and
(B) any bonding requirements for nationals of
some or all of those countries who may present
an increased risk of overstays or other
potential problems, if different from such
requirements otherwise provided by law for
nonimmigrant visitors.
(4) Factors.--In determining whether to grant or
continue providing the waiver under this subsection to
nationals of any country, the Secretary of Homeland
Security, in consultation with the Secretary of the
Interior and the Secretary of State, shall consider all
factors that the Secretary deems relevant, including
electronic travel authorizations, procedures for
reporting lost and stolen passports, repatriation of
aliens, rates of refusal for nonimmigrant visitor
visas, overstays, exit systems, and information
exchange.
(5) Suspension.--The Secretary of Homeland Security
shall monitor the admission of nonimmigrant visitors to
Guam and the Commonwealth of the Northern Mariana
Islands under this subsection. If the Secretary
determines that such admissions have resulted in an
unacceptable number of visitors from a country
remaining unlawfully in Guam or the Commonwealth of the
Northern Mariana Islands, unlawfully obtaining entry to
other parts of the United States, or seeking
withholding of removal or asylum, or that visitors from
a country pose a risk to law enforcement or security
interests of Guam or the Commonwealth of the Northern
Mariana Islands or of the United States (including the
interest in the enforcement of the immigration laws of
the United States), the Secretary shall suspend the
admission of nationals of such country under this
subsection. The Secretary of Homeland Security may in
the Secretary's discretion suspend the Guam and
Northern Mariana Islands visa waiver program at any
time, on a country-by-country basis, for other good
cause.
(6) Addition of countries.--The Governor of Guam and
the Governor of the Commonwealth of the Northern
Mariana Islands may request the Secretary of the
Interior and the Secretary of Homeland Security to add
a particular country to the list of countries whose
nationals may obtain the waiver provided by this
subsection, and the Secretary of Homeland Security may
grant such request after consultation with the
Secretary of the Interior and the Secretary of State,
and may promulgate regulations with respect to the
inclusion of that country and any special requirements
the Secretary of Homeland Security, in the Secretary's
sole discretion, may impose prior to allowing nationals
of that country to obtain the waiver provided by this
subsection.
(m)(1) The qualifications referred to in section
101(a)(15)(H)(i)(c), with respect to an alien who is coming to
the United States to perform nursing services for a facility,
are that the alien--
(A) has obtained a full and unrestricted license to
practice professional nursing in the country where the
alien obtained nursing education or has received
nursing education in the United States;
(B) has passed an appropriate examination (recognized
in regulations promulgated in consultation with the
Secretary of Health and Human Services) or has a full
and unrestricted license under State law to practice
professional nursing in the State of intended
employment; and
(C) is fully qualified and eligible under the laws
(including such temporary or interim licensing
requirements which authorize the nurse to be employed)
governing the place of intended employment to engage in
the practice of professional nursing as a registered
nurse immediately upon admission to the United States
and is authorized under such laws to be employed by the
facility.
(2)(A) The attestation referred to in section
101(a)(15)(H)(i)(c), with respect to a facility for which an
alien will perform services, is an attestation as to the
following:
(i) The facility meets all the requirements of
paragraph (6).
(ii) The employment of the alien will not adversely
affect the wages and working conditions of registered
nurses similarly employed.
(iii) The alien employed by the facility will be paid
the wage rate for registered nurses similarly employed
by the facility.
(iv) The facility has taken and is taking timely and
significant steps designed to recruit and retain
sufficient registered nurses who are United States
citizens or immigrants who are authorized to perform
nursing services, in order to remove as quickly as
reasonably possible the dependence of the facility on
nonimmigrant registered nurses.
(v) There is not a strike or lockout in the course of
a labor dispute, the facility did not lay off and will
not lay off a registered nurse employed by the facility
within the period beginning 90 days before and ending
90 days after the date of filing of any visa petition,
and the employment of such an alien is not intended or
designed to influence an election for a bargaining
representative for registered nurses of the facility.
(vi) At the time of the filing of the petition for
registered nurses under section 101(a)(15)(H)(i)(c),
notice of the filing has been provided by the facility
to the bargaining representative of the registered
nurses at the facility or, where there is no such
bargaining representative, notice of the filing has
been provided to the registered nurses employed at the
facility through posting in conspicuous locations.
(vii) The facility will not, at any time, employ a
number of aliens issued visas or otherwise provided
nonimmigrant status under section 101(a)(15)(H)(i)(c)
that exceeds 33 percent of the total number of
registered nurses employed by the facility.
(viii) The facility will not, with respect to any
alien issued a visa or otherwise provided nonimmigrant
status under section 101(a)(15)(H)(i)(c)--
(I) authorize the alien to perform nursing
services at any worksite other than a worksite
controlled by the facility; or
(II) transfer the place of employment of the
alien from one worksite to another.
Nothing in clause (iv) shall be construed as requiring
a facility to have taken significant steps described in
such clause before the date of the enactment of the
Nursing Relief for Disadvantaged Areas Act of 1999. A
copy of the attestation shall be provided, within 30
days of the date of filing, to registered nurses
employed at the facility on the date of filing.
(B) For purposes of subparagraph (A)(iv), each of the
following shall be considered a significant step reasonably
designed to recruit and retain registered nurses:
(i) Operating a training program for registered
nurses at the facility or financing (or providing
participation in) a training program for registered
nurses elsewhere.
(ii) Providing career development programs and other
methods of facilitating health care workers to become
registered nurses.
(iii) Paying registered nurses wages at a rate higher
than currently being paid to registered nurses
similarly employed in the geographic area.
(iv) Providing reasonable opportunities for
meaningful salary advancement by registered nurses.
The steps described in this subparagraph shall not be
considered to be an exclusive list of the significant steps
that may be taken to meet the conditions of subparagraph
(A)(iv). Nothing in this subparagraph shall require a facility
to take more than one step if the facility can demonstrate that
taking a second step is not reasonable.
(C) Subject to subparagraph (E), an attestation under
subparagraph (A)--
(i) shall expire on the date that is the later of--
(I) the end of the one-year period beginning
on the date of its filing with the Secretary of
Labor; or
(II) the end of the period of admission under
section 101(a)(15)(H)(i)(c) of the last alien
with respect to whose admission it was applied
(in accordance with clause (ii)); and
(ii) shall apply to petitions filed during the one-
year period beginning on the date of its filing with
the Secretary of Labor if the facility states in each
such petition that it continues to comply with the
conditions in the attestation.
(D) A facility may meet the requirements under this paragraph
with respect to more than one registered nurse in a single
petition.
(E)(i) The Secretary of Labor shall compile and make
available for public examination in a timely manner in
Washington, D.C., a list identifying facilities which have
filed petitions for nonimmigrants under section
101(a)(15)(H)(i)(c) and, for each such facility, a copy of the
facility's attestation under subparagraph (A) (and accompanying
documentation) and each such petition filed by the facility.
(ii) The Secretary of Labor shall establish a process,
including reasonable time limits, for the receipt,
investigation, and disposition of complaints respecting a
facility's failure to meet conditions attested to or a
facility's misrepresentation of a material fact in an
attestation. Complaints may be filed by any aggrieved person or
organization (including bargaining representatives,
associations deemed appropriate by the Secretary, and other
aggrieved parties as determined under regulations of the
Secretary). The Secretary shall conduct an investigation under
this clause if there is reasonable cause to believe that a
facility fails to meet conditions attested to. Subject to the
time limits established under this clause, this subparagraph
shall apply regardless of whether an attestation is expired or
unexpired at the time a complaint is filed.
(iii) Under such process, the Secretary shall provide, within
180 days after the date such a complaint is filed, for a
determination as to whether or not a basis exists to make a
finding described in clause (iv). If the Secretary determines
that such a basis exists, the Secretary shall provide for
notice of such determination to the interested parties and an
opportunity for a hearing on the complaint within 60 days of
the date of the determination.
(iv) If the Secretary of Labor finds, after notice and
opportunity for a hearing, that a facility (for which an
attestation is made) has failed to meet a condition attested to
or that there was a misrepresentation of material fact in the
attestation, the Secretary shall notify the Attorney General of
such finding and may, in addition, impose such other
administrative remedies (including civil monetary penalties in
an amount not to exceed $1,000 per nurse per violation, with
the total penalty not to exceed $10,000 per violation) as the
Secretary determines to be appropriate. Upon receipt of such
notice, the Attorney General shall not approve petitions filed
with respect to a facility during a period of at least one year
for nurses to be employed by the facility.
(v) In addition to the sanctions provided for under clause
(iv), if the Secretary of Labor finds, after notice and an
opportunity for a hearing, that a facility has violated the
condition attested to under subparagraph (A)(iii) (relating to
payment of registered nurses at the prevailing wage rate), the
Secretary shall order the facility to provide for payment of
such amounts of back pay as may be required to comply with such
condition.
(F)(i) The Secretary of Labor shall impose on a facility
filing an attestation under subparagraph (A) a filing fee, in
an amount prescribed by the Secretary based on the costs of
carrying out the Secretary's duties under this subsection, but
not exceeding $250.
(ii) Fees collected under this subparagraph shall be
deposited in a fund established for this purpose in the
Treasury of the United States.
(iii) The collected fees in the fund shall be available to
the Secretary of Labor, to the extent and in such amounts as
may be provided in appropriations Acts, to cover the costs
described in clause (i), in addition to any other funds that
are available to the Secretary to cover such costs.
(3) The period of admission of an alien under section
101(a)(15)(H)(i)(c) shall be 3 years.
(4) The total number of nonimmigrant visas issued pursuant to
petitions granted under section 101(a)(15)(H)(i)(c) in each
fiscal year shall not exceed 500. The number of such visas
issued for employment in each State in each fiscal year shall
not exceed the following:
(A) For States with populations of less than
9,000,000, based upon the 1990 decennial census of
population, 25 visas.
(B) For States with populations of 9,000,000 or more,
based upon the 1990 decennial census of population, 50
visas.
(C) If the total number of visas available under this
paragraph for a fiscal year quarter exceeds the number
of qualified nonimmigrants who may be issued such visas
during those quarters, the visas made available under
this paragraph shall be issued without regard to the
numerical limitation under subparagraph (A) or (B) of
this paragraph during the last fiscal year quarter.
(5) A facility that has filed a petition under section
101(a)(15)(H)(i)(c) to employ a nonimmigrant to perform nursing
services for the facility--
(A) shall provide the nonimmigrant a wage rate and
working conditions commensurate with those of nurses
similarly employed by the facility;
(B) shall require the nonimmigrant to work hours
commensurate with those of nurses similarly employed by
the facility; and
(C) shall not interfere with the right of the
nonimmigrant to join or organize a union.
(6) For purposes of this subsection and section
101(a)(15)(H)(i)(c), the term ``facility'' means a subsection
(d) hospital (as defined in section 1886(d)(1)(B) of the Social
Security Act (42 U.S.C. 1395ww(d)(1)(B))) that meets the
following requirements:
(A) As of March 31, 1997, the hospital was located in
a health professional shortage area (as defined in
section 332 of the Public Health Service Act (42 U.S.C.
254e)).
(B) Based on its settled cost report filed under
title XVIII of the Social Security Act for its cost
reporting period beginning during fiscal year 1994--
(i) the hospital has not less than 190
licensed acute care beds;
(ii) the number of the hospital's inpatient
days for such period which were made up of
patients who (for such days) were entitled to
benefits under part A of such title is not less
than 35 percent of the total number of such
hospital's acute care inpatient days for such
period; and
(iii) the number of the hospital's inpatient
days for such period which were made up of
patients who (for such days) were eligible for
medical assistance under a State plan approved
under title XIX of the Social Security Act, is
not less than 28 percent of the total number of
such hospital's acute care inpatient days for
such period.
(7) For purposes of paragraph (2)(A)(v), the term
``lay off'', with respect to a worker--
(A) means to cause the worker's loss of
employment, other than through a discharge for
inadequate performance, violation of workplace
rules, cause, voluntary departure, voluntary
retirement, or the expiration of a grant or
contract; but
(B) does not include any situation in which
the worker is offered, as an alternative to
such loss of employment, a similar employment
opportunity with the same employer at
equivalent or higher compensation and benefits
than the position from which the employee was
discharged, regardless of whether or not the
employee accepts the offer.
Nothing in this paragraph is intended to limit an
employee's or an employer's rights under a collective
bargaining agreement or other employment contract.
(n)(1) No alien may be admitted or provided status as an H-1B
nonimmigrant in an occupational classification unless the
employer has filed with the Secretary of Labor an application
stating the following:
(A) The employer--
(i) is offering and will offer during the
period of authorized employment to aliens
admitted or provided status as an H-1B
nonimmigrant wages that are at least--
(I) the actual wage level paid by the
employer to all other individuals with
similar experience and qualifications
for the specific employment in
question, or
(II) the prevailing wage level for
the occupational classification in the
area of employment,
whichever is greater, based on the best
information available as of the time of filing
the application, and
(ii) will provide working conditions for such
a nonimmigrant that will not adversely affect
the working conditions of workers similarly
employed.
(B) There is not a strike or lockout in the course of
a labor dispute in the occupational classification at
the place of employment.
(C) The employer, at the time of filing the
application--
(i) has provided notice of the filing under
this paragraph to the bargaining representative
(if any) of the employer's employees in the
occupational classification and area for which
aliens are sought, or
(ii) if there is no such bargaining
representative, has provided notice of filing
in the occupational classification through such
methods as physical posting in conspicuous
locations at the place of employment or
electronic notification to employees in the
occupational classification for which H-1B
nonimmigrants are sought.
(D) The application shall contain a specification of
the number of workers sought, the occupational
classification in which the workers will be employed,
and wage rate and conditions under which they will be
employed.
(E)(i) In the case of an application described in
clause (ii), the employer did not displace and will not
displace a United States worker (as defined in
paragraph (4)) employed by the employer within the
period beginning 90 days before and ending 90 days
after the date of filing of any visa petition supported
by the application.
(ii) An application described in this clause is an
application filed on or after the date final
regulations are first promulgated to carry out this
subparagraph, and before by an H-1B-dependent employer
(as defined in paragraph (3)) or by an employer that
has been found, on or after the date of the enactment
of the American Competitiveness and Workforce
Improvement Act of 1998, under paragraph (2)(C) or (5)
to have committed a willful failure or
misrepresentation during the 5-year period preceding
the filing of the application. An application is not
described in this clause if the only H-1B nonimmigrants
sought in the application are exempt H-1B
nonimmigrants.
(F) In the case of an application described in
subparagraph (E)(ii), the employer will not place the
nonimmigrant with another employer (regardless of
whether or not such other employer is an H-1B-dependent
employer) where--
(i) the nonimmigrant performs duties in whole
or in part at one or more worksites owned,
operated, or controlled by such other employer;
and
(ii) there are indicia of an employment
relationship between the nonimmigrant and such
other employer;
unless the employer has inquired of the other employer
as to whether, and has no knowledge that, within the
period beginning 90 days before and ending 90 days
after the date of the placement of the nonimmigrant
with the other employer, the other employer has
displaced or intends to displace a United States worker
employed by the other employer.
(G)(i) In the case of an application described in
subparagraph (E)(ii), subject to clause (ii), the
employer, prior to filing the application--
(I) has taken good faith steps to recruit, in
the United States using procedures that meet
industry-wide standards and offering
compensation that is at least as great as that
required to be offered to H-1B nonimmigrants
under subparagraph (A), United States workers
for the job for which the nonimmigrant or
nonimmigrants is or are sought; and
(II) has offered the job to any United States
worker who applies and is equally or better
qualified for the job for which the
nonimmigrant or nonimmigrants is or are sought.
(ii) The conditions described in clause (i) shall not
apply to an application filed with respect to the
employment of an H-1B nonimmigrant who is described in
subparagraph (A), (B), or (C) of section 203(b)(1).
The employer shall make available for public examination,
within one working day after the date on which an application
under this paragraph is filed, at the employer's principal
place of business or worksite, a copy of each such application
(and such accompanying documents as are necessary). The
Secretary shall compile, on a current basis, a list (by
employer and by occupational classification) of the
applications filed under this subsection. Such list shall
include the wage rate, number of aliens sought, period of
intended employment, and date of need. The Secretary shall make
such list available for public examination in Washington, D.C.
The Secretary of Labor shall review such an application only
for completeness and obvious inaccuracies. Unless the Secretary
finds that the application is incomplete or obviously
inaccurate, the Secretary shall provide the certification
described in section 101(a)(15)(H)(i)(b) within 7 days of the
date of the filing of the application. The application form
shall include a clear statement explaining the liability under
subparagraph (F) of a placing employer if the other employer
described in such subparagraph displaces a United States worker
as described in such subparagraph. Nothing in subparagraph (G)
shall be construed to prohibit an employer from using
legitimate selection criteria relevant to the job that are
normal or customary to the type of job involved, so long as
such criteria are not applied in a discriminatory manner.
(2)(A) Subject to paragraph (5)(A), the Secretary shall
establish a process for the receipt, investigation, and
disposition of complaints respecting a petitioner's failure to
meet a condition specified in an application submitted under
paragraph (1) or a petitioner's misrepresentation of material
facts in such an application. Complaints may be filed by any
aggrieved person or organization (including bargaining
representatives). No investigation or hearing shall be
conducted on a complaint concerning such a failure or
misrepresentation unless the complaint was filed not later than
12 months after the date of the failure or misrepresentation,
respectively. The Secretary shall conduct an investigation
under this paragraph if there is reasonable cause to believe
that such a failure or misrepresentation has occurred.
(B) Under such process, the Secretary shall provide, within
30 days after the date such a complaint is filed, for a
determination as to whether or not a reasonable basis exists to
make a finding described in subparagraph (C). If the Secretary
determines that such a reasonable basis exists, the Secretary
shall provide for notice of such determination to the
interested parties and an opportunity for a hearing on the
complaint, in accordance with section 556 of title 5, United
States Code, within 60 days after the date of the
determination. If such a hearing is requested, the Secretary
shall make a finding concerning the matter by not later than 60
days after the date of the hearing. In the case of similar
complaints respecting the same applicant, the Secretary may
consolidate the hearings under this subparagraph on such
complaints.
(C)(i) If the Secretary finds, after notice and opportunity
for a hearing, a failure to meet a condition of paragraph
(1)(B), (1)(E), or (1)(F), a substantial failure to meet a
condition of paragraph (1)(C), (1)(D), or (1)(G)(i)(I), or a
misrepresentation of material fact in an application--
(I) the Secretary shall notify the Attorney General
of such finding and may, in addition, impose such other
administrative remedies (including civil monetary
penalties in an amount not to exceed $1,000 per
violation) as the Secretary determines to be
appropriate; and
(II) the Attorney General shall not approve petitions
filed with respect to that employer under section 204
or 214(c) during a period of at least 1 year for aliens
to be employed by the employer.
(ii) If the Secretary finds, after notice and opportunity for
a hearing, a willful failure to meet a condition of paragraph
(1), a willful misrepresentation of material fact in an
application, or a violation of clause (iv)--
(I) the Secretary shall notify the Attorney General
of such finding and may, in addition, impose such other
administrative remedies (including civil monetary
penalties in an amount not to exceed $5,000 per
violation) as the Secretary determines to be
appropriate; and
(II) the Attorney General shall not approve petitions
filed with respect to that employer under section 204
or 214(c) during a period of at least 2 years for
aliens to be employed by the employer.
(iii) If the Secretary finds, after notice and opportunity
for a hearing, a willful failure to meet a condition of
paragraph (1) or a willful misrepresentation of material fact
in an application, in the course of which failure or
misrepresentation the employer displaced a United States worker
employed by the employer within the period beginning 90 days
before and ending 90 days after the date of filing of any visa
petition supported by the application--
(I) the Secretary shall notify the Attorney General
of such finding and may, in addition, impose such other
administrative remedies (including civil monetary
penalties in an amount not to exceed $35,000 per
violation) as the Secretary determines to be
appropriate; and
(II) the Attorney General shall not approve petitions
filed with respect to that employer under section 204
or 214(c) during a period of at least 3 years for
aliens to be employed by the employer.
(iv) It is a violation of this clause for an employer who has
filed an application under this subsection to intimidate,
threaten, restrain, coerce, blacklist, discharge, or in any
other manner discriminate against an employee (which term, for
purposes of this clause, includes a former employee and an
applicant for employment) because the employee has disclosed
information to the employer, or to any other person, that the
employee reasonably believes evidences a violation of this
subsection, or any rule or regulation pertaining to this
subsection, or because the employee cooperates or seeks to
cooperate in an investigation or other proceeding concerning
the employer's compliance with the requirements of this
subsection or any rule or regulation pertaining to this
subsection.
(v) The Secretary of Labor and the Attorney General shall
devise a process under which an H-1B nonimmigrant who files a
complaint regarding a violation of clause (iv) and is otherwise
eligible to remain and work in the United States may be allowed
to seek other appropriate employment in the United States for a
period not to exceed the maximum period of stay authorized for
such nonimmigrant classification.
(vi)(I) It is a violation of this clause for an employer who
has filed an application under this subsection to require an H-
1B nonimmigrant to pay a penalty for ceasing employment with
the employer prior to a date agreed to by the nonimmigrant and
the employer. The Secretary shall determine whether a required
payment is a penalty (and not liquidated damages) pursuant to
relevant State law.
(II) It is a violation of this clause for an employer who has
filed an application under this subsection to require an alien
who is the subject of a petition filed under section 214(c)(1),
for which a fee is imposed under section 214(c)(9), to
reimburse, or otherwise compensate, the employer for part or
all of the cost of such fee. It is a violation of this clause
for such an employer otherwise to accept such reimbursement or
compensation from such an alien.
(III) If the Secretary finds, after notice and opportunity
for a hearing, that an employer has committed a violation of
this clause, the Secretary may impose a civil monetary penalty
of $1,000 for each such violation and issue an administrative
order requiring the return to the nonimmigrant of any amount
paid in violation of this clause, or, if the nonimmigrant
cannot be located, requiring payment of any such amount to the
general fund of the Treasury.
(vii)(I) It is a failure to meet a condition of paragraph
(1)(A) for an employer, who has filed an application under this
subsection and who places an H-1B nonimmigrant designated as a
full-time employee on the petition filed under section
214(c)(1) by the employer with respect to the nonimmigrant,
after the nonimmigrant has entered into employment with the
employer, in nonproductive status due to a decision by the
employer (based on factors such as lack of work), or due to the
nonimmigrant's lack of a permit or license, to fail to pay the
nonimmigrant full-time wages in accordance with paragraph
(1)(A) for all such nonproductive time.
(II) It is a failure to meet a condition of paragraph (1)(A)
for an employer, who has filed an application under this
subsection and who places an H-1B nonimmigrant designated as a
part-time employee on the petition filed under section
214(c)(1) by the employer with respect to the nonimmigrant,
after the nonimmigrant has entered into employment with the
employer, in nonproductive status under circumstances described
in subclause (I), to fail to pay such a nonimmigrant for such
hours as are designated on such petition consistent with the
rate of pay identified on such petition.
(III) In the case of an H-1B nonimmigrant who has not yet
entered into employment with an employer who has had approved
an application under this subsection, and a petition under
section 214(c)(1), with respect to the nonimmigrant, the
provisions of subclauses (I) and (II) shall apply to the
employer beginning 30 days after the date the nonimmigrant
first is admitted into the United States pursuant to the
petition, or 60 days after the date the nonimmigrant becomes
eligible to work for the employer (in the case of a
nonimmigrant who is present in the United States on the date of
the approval of the petition).
(IV) This clause does not apply to a failure to pay wages to
an H-1B nonimmigrant for nonproductive time due to non-work-
related factors, such as the voluntary request of the
nonimmigrant for an absence or circumstances rendering the
nonimmigrant unable to work.
(V) This clause shall not be construed as prohibiting an
employer that is a school or other educational institution from
applying to an H-1B nonimmigrant an established salary practice
of the employer, under which the employer pays to H-1B
nonimmigrants and United States workers in the same
occupational classification an annual salary in disbursements
over fewer than 12 months, if--
(aa) the nonimmigrant agrees to the compressed annual
salary payments prior to the commencement of the
employment; and
(bb) the application of the salary practice to the
nonimmigrant does not otherwise cause the nonimmigrant
to violate any condition of the nonimmigrant's
authorization under this Act to remain in the United
States.
(VI) This clause shall not be construed as superseding clause
(viii).
(viii) It is a failure to meet a condition of paragraph
(1)(A) for an employer who has filed an application under this
subsection to fail to offer to an H-1B nonimmigrant, during the
nonimmigrant's period of authorized employment, benefits and
eligibility for benefits (including the opportunity to
participate in health, life, disability, and other insurance
plans; the opportunity to participate in retirement and savings
plans; and cash bonuses and noncash compensation, such as stock
options (whether or not based on performance)) on the same
basis, and in accordance with the same criteria, as the
employer offers to United States workers.
(D) If the Secretary finds, after notice and opportunity for
a hearing, that an employer has not paid wages at the wage
level specified under the application and required under
paragraph (1), the Secretary shall order the employer to
provide for payment of such amounts of back pay as may be
required to comply with the requirements of paragraph (1),
whether or not a penalty under subparagraph (C) has been
imposed.
(E) If an H-1B-dependent employer places a nonexempt H-1B
nonimmigrant with another employer as provided under paragraph
(1)(F) and the other employer has displaced or displaces a
United States worker employed by such other employer during the
period described in such paragraph, such displacement shall be
considered for purposes of this paragraph a failure, by the
placing employer, to meet a condition specified in an
application submitted under paragraph (1); except that the
Attorney General may impose a sanction described in subclause
(II) of subparagraph (C)(i), (C)(ii), or (C)(iii) only if the
Secretary of Labor found that such placing employer--
(i) knew or had reason to know of such displacement
at the time of the placement of the nonimmigrant with
the other employer; or
(ii) has been subject to a sanction under this
subparagraph based upon a previous placement of an H-1B
nonimmigrant with the same other employer.
(F) The Secretary may, on a case-by-case basis, subject an
employer to random investigations for a period of up to 5
years, beginning on the date (on or after the date of the
enactment of the American Competitiveness and Workforce
Improvement Act of 1998) on which the employer is found by the
Secretary to have committed a willful failure to meet a
condition of paragraph (1) (or has been found under paragraph
(5) to have committed a willful failure to meet the condition
of paragraph (1)(G)(i)(II)) or to have made a willful
misrepresentation of material fact in an application. The
preceding sentence shall apply to an employer regardless of
whether or not the employer is an H-1B-dependent employer. The
authority of the Secretary under this subparagraph shall not be
construed to be subject to, or limited by, the requirements of
subparagraph (A).
(G)(i) The Secretary of Labor may initiate an investigation
of any employer that employs nonimmigrants described in section
101(a)(15)(H)(i)(b) if the Secretary of Labor has reasonable
cause to believe that the employer is not in compliance with
this subsection. In the case of an investigation under this
clause, the Secretary of Labor (or the acting Secretary in the
case of the absence of disability of the Secretary of Labor)
shall personally certify that reasonable cause exists and shall
approve commencement of the investigation. The investigation
may be initiated for reasons other than completeness and
obvious inaccuracies by the employer in complying with this
subsection.
(ii) If the Secretary of Labor receives specific credible
information from a source who is likely to have knowledge of an
employer's practices or employment conditions, or an employer's
compliance with the employer's labor condition application
under paragraph (1), and whose identity is known to the
Secretary of Labor, and such information provides reasonable
cause to believe that the employer has committed a willful
failure to meet a condition of paragraph (1)(A), (1)(B),
(1)(C), (1)(E), (1)(F), or (1)(G)(i)(I), has engaged in a
pattern or practice of failures to meet such a condition, or
has committed a substantial failure to meet such a condition
that affects multiple employees, the Secretary of Labor may
conduct an investigation into the alleged failure or failures.
The Secretary of Labor may withhold the identity of the source
from the employer, and the source's identity shall not be
subject to disclosure under section 552 of title 5, United
States Code.
(iii) The Secretary of Labor shall establish a procedure for
any person desiring to provide to the Secretary of Labor
information described in clause (ii) that may be used, in whole
or in part, as the basis for the commencement of an
investigation described in such clause, to provide the
information in writing on a form developed and provided by the
Secretary of Labor and completed by or on behalf of the person.
The person may not be an officer or employee of the Department
of Labor, unless the information satisfies the requirement of
clause (iv)(II) (although an officer or employee of the
Department of Labor may complete the form on behalf of the
person).
(iv) Any investigation initiated or approved by the Secretary
of Labor under clause (ii) shall be based on information that
satisfies the requirements of such clause and that--
(I) originates from a source other than an officer or
employee of the Department of Labor; or
(II) was lawfully obtained by the Secretary of Labor
in the course of lawfully conducting another Department
of Labor investigation under this Act of any other Act.
(v) The receipt by the Secretary of Labor of information
submitted by an employer to the Attorney General or the
Secretary of Labor for purposes of securing the employment of a
nonimmigrant described in section 101(a)(15)(H)(i)(b) shall not
be considered a receipt of information for purposes of clause
(ii).
(vi) No investigation described in clause (ii) (or hearing
described in clause (viii) based on such investigation) may be
conducted with respect to information about a failure to meet a
condition described in clause (ii), unless the Secretary of
Labor receives the information not later than 12 months after
the date of the alleged failure.
(vii) The Secretary of Labor shall provide notice to an
employer with respect to whom there is reasonable cause to
initiate an investigation described in clauses (i) or (ii),
prior to the commencement of an investigation under such
clauses, of the intent to conduct an investigation. The notice
shall be provided in such a manner, and shall contain
sufficient detail, to permit the employer to respond to the
allegations before an investigation is commenced. The Secretary
of Labor is not required to comply with this clause if the
Secretary of Labor determines that to do so would interfere
with an effort by the Secretary of Labor to secure compliance
by the employer with the requirements of this subsection. There
shall be no judicial review of a determination by the Secretary
of Labor under this clause.
(viii) An investigation under clauses (i) or (ii) may be
conducted for a period of up to 60 days. If the Secretary of
Labor determines after such an investigation that a reasonable
basis exists to make a finding that the employer has committed
a willful failure to meet a condition of paragraph (1)(A),
(1)(B), (1)(C), (1)(E), (1)(F), or (1)(G)(i)(I), has engaged in
a pattern or practice of failures to meet such a condition, or
has committed a substantial failure to meet such a condition
that affects multiple employees, the Secretary of Labor shall
provide for notice of such determination to the interested
parties and an opportunity for a hearing in accordance with
section 556 of title 5, United States Code, within 120 days
after the date of the determination. If such a hearing is
requested, the Secretary of Labor shall make a finding
concerning the matter by not later than 120 days after the date
of the hearing.
(H)(i) Except as provided in clauses (ii) and (iii), a person
or entity is considered to have complied with the requirements
of this subsection, notwithstanding a technical or procedural
failure to meet such requirements, if there was a good faith
attempt to comply with the requirements.
(ii) Clause (i) shall not apply if--
(I) the Department of Labor (or another enforcement
agency) has explained to the person or entity the basis
for the failure;
(II) the person or entity has been provided a period
of not less than 10 business days (beginning after the
date of the explanation) within which to correct the
failure; and
(III) the person or entity has not corrected the
failure voluntarily within such period.
(iii) A person or entity that, in the course of an
investigation, is found to have violated the prevailing
wage requirements set forth in paragraph (1)(A), shall
not be assessed fines or other penalties for such
violation if the person or entity can establish that
the manner in which the prevailing wage was calculated
was consistent with recognized industry standards and
practices.
(iv) Clauses (i) and (iii) shall not apply to a
person or entity that has engaged in or is engaging in
a pattern or practice of willful violations of this
subsection.
(I) Nothing in this subsection shall be construed as
superseding or preempting any other enforcement-related
authority under this Act (such as the authorities under section
274B), or any other Act.
(3)(A) For purposes of this subsection, the term ``H-1B-
dependent employer'' means an employer that--
(i)(I) has 25 or fewer full-time equivalent employees
who are employed in the United States; and (II) employs
more than 7 H-1B nonimmigrants;
(ii)(I) has at least 26 but not more than 50 full-
time equivalent employees who are employed in the
United States; and (II) employs more than 12 H-1B
nonimmigrants; or
(iii)(I) has at least 51 full-time equivalent
employees who are employed in the United States; and
(II) employs H-1B nonimmigrants in a number that is
equal to at least 15 percent of the number of such
full-time equivalent employees.
(B) For purposes of this subsection--
(i) the term ``exempt H-1B nonimmigrant'' means an H-
1B nonimmigrant who--
(I) receives wages (including cash bonuses
and similar compensation) at an annual rate
equal to at least $60,000; or
(II) has attained a master's or higher degree
(or its equivalent) in a specialty related to
the intended employment; and
(ii) the term nonexempt H-1B nonimmigrant means an H-
1B nonimmigrant who is not an exempt H-1B nonimmigrant.
(C) For purposes of subparagraph (A)--
(i) in computing the number of full-time equivalent
employees and the number of H-1B nonimmigrants, exempt
H-1B nonimmigrants shall not be taken into account
during the longer of--
(I) the 6-month period beginning on the date
of the enactment of the American
Competitiveness and Workforce Improvement Act
of 1998; or
(II) the period beginning on the date of the
enactment of the American Competitiveness and
Workforce Improvement Act of 1998 and ending on
the date final regulations are issued to carry
out this paragraph; and
(ii) any group treated as a single employer under
subsection (b), (c), (m), or (o) of section 414 of the
Internal Revenue Code of 1986 shall be treated as a
single employer.
(4) For purposes of this subsection:
(A) The term ``area of employment'' means the area
within normal commuting distance of the worksite or
physical location where the work of the H-1B
nonimmigrant is or will be performed. If such worksite
or location is within a Metropolitan Statistical Area,
any place within such area is deemed to be within the
area of employment.
(B) In the case of an application with respect to one
or more H-1B nonimmigrants by an employer, the employer
is considered to ``displace'' a United States worker
from a job if the employer lays off the worker from a
job that is essentially the equivalent of the job for
which the nonimmigrant or nonimmigrants is or are
sought. A job shall not be considered to be essentially
equivalent of another job unless it involves
essentially the same responsibilities, was held by a
United States worker with substantially equivalent
qualifications and experience, and is located in the
same area of employment as the other job.
(C) The term ``H-1B nonimmigrant'' means an alien
admitted or provided status as a nonimmigrant described
in section 101(a)(15)(H)(i)(b).
(D)(i) The term ``lays off'', with respect to a
worker--
(I) means to cause the worker's loss of
employment, other than through a discharge for
inadequate performance, violation of workplace
rules, cause, voluntary departure, voluntary
retirement, or the expiration of a grant or
contract (other than a temporary employment
contract entered into in order to evade a
condition described in subparagraph (E) or (F)
of paragraph (1)); but
(II) does not include any situation in which
the worker is offered, as an alternative to
such loss of employment, a similar employment
opportunity with the same employer (or, in the
case of a placement of a worker with another
employer under paragraph (1)(F), with either
employer described in such paragraph) at
equivalent or higher compensation and benefits
than the position from which the employee was
discharged, regardless of whether or not the
employee accepts the offer.
(ii) Nothing in this subparagraph is intended to
limit an employee's rights under a collective
bargaining agreement or other employment contract.
(E) The term ``United States worker'' means an
employee who--
(i) is a citizen or national of the United
States; or
(ii) is an alien who is lawfully admitted for
permanent residence, is admitted as a refugee
under section 207, is granted asylum under
section 208, or is an immigrant otherwise
authorized, by this Act or by the Attorney
General, to be employed.
(5)(A) This paragraph shall apply instead of subparagraphs
(A) through (E) of paragraph (2) in the case of a violation
described in subparagraph (B), but shall not be construed to
limit or affect the authority of the Secretary or the Attorney
General with respect to any other violation.
(B) The Attorney General shall establish a process for the
receipt, initial review, and disposition in accordance with
this paragraph of complaints respecting an employer's failure
to meet the condition of paragraph (1)(G)(i)(II) or a
petitioner's misrepresentation of material facts with respect
to such condition. Complaints may be filed by an aggrieved
individual who has submitted a resume or otherwise applied in a
reasonable manner for the job that is the subject of the
condition. No proceeding shall be conducted under this
paragraph on a complaint concerning such a failure or
misrepresentation unless the Attorney General determines that
the complaint was filed not later than 12 months after the date
of the failure or misrepresentation, respectively.
(C) If the Attorney General finds that a complaint has been
filed in accordance with subparagraph (B) and there is
reasonable cause to believe that such a failure or
misrepresentation described in such complaint has occurred, the
Attorney General shall initiate binding arbitration proceedings
by requesting the Federal Mediation and Conciliation Service to
appoint an arbitrator from the roster of arbitrators maintained
by such Service. The procedure and rules of such Service shall
be applicable to the selection of such arbitrator and to such
arbitration proceedings. The Attorney General shall pay the fee
and expenses of the arbitrator.
(D)(i) The arbitrator shall make findings respecting whether
a failure or misrepresentation described in subparagraph (B)
occurred. If the arbitrator concludes that failure or
misrepresentation was willful, the arbitrator shall make a
finding to that effect. The arbitrator may not find such a
failure or misrepresentation (or that such a failure or
misrepresentation was willful) unless the complainant
demonstrates such a failure or misrepresentation (or its
willful character) by clear and convincing evidence. The
arbitrator shall transmit the findings in the form of a written
opinion to the parties to the arbitration and the Attorney
General. Such findings shall be final and conclusive, and,
except as provided in this subparagraph, no official or court
of the United States shall have power or jurisdiction to review
any such findings.
(ii) The Attorney General may review and reverse or modify
the findings of an arbitrator only on the same bases as an
award of an arbitrator may be vacated or modified under section
10 or 11 of title 9, United States Code.
(iii) With respect to the findings of an arbitrator, a court
may review only the actions of the Attorney General under
clause (ii) and may set aside such actions only on the grounds
described in subparagraph (A), (B), or (C) of section 706(a)(2)
of title 5, United States Code. Notwithstanding any other
provision of law, such judicial review may only be brought in
an appropriate United States court of appeals.
(E) If the Attorney General receives a finding of an
arbitrator under this paragraph that an employer has failed to
meet the condition of paragraph (1)(G)(i)(II) or has
misrepresented a material fact with respect to such condition,
unless the Attorney General reverses or modifies the finding
under subparagraph (D)(ii)--
(i) the Attorney General may impose administrative
remedies (including civil monetary penalties in an
amount not to exceed $1,000 per violation or $5,000 per
violation in the case of a willful failure or
misrepresentation) as the Attorney General determines
to be appropriate; and
(ii) the Attorney General is authorized to not
approve petitions filed, with respect to that employer
and for aliens to be employed by the employer, under
section 204 or 214(c)--
(I) during a period of not more than 1 year;
or
(II) in the case of a willful failure or
willful misrepresentation, during a period of
not more than 2 years.
(F) The Attorney General shall not delegate, to any other
employee or official of the Department of Justice, any function
of the Attorney General under this paragraph, until 60 days
after the Attorney General has submitted a plan for such
delegation to the Committees on the Judiciary of the United
States House of Representatives and the Senate.
(o) An alien who has been physically present in the United
States shall not be eligible to receive an immigrant visa
within ninety days following departure therefrom unless--
(1) the alien was maintaining a lawful nonimmigrant
status at the time of such departure, or
(2) the alien is the spouse or unmarried child of an
individual who obtained temporary or permanent resident
status under section 210 or 245A of the Immigration and
Nationality Act or section 202 of the Immigration
Reform and Control Act of 1986 at any date, who--
(A) as of May 5, 1988, was the unmarried
child or spouse of the individual who obtained
temporary or permanent resident status under
section 210 or 245A of the Immigration and
Nationality Act or section 202 of the
Immigration Reform and Control Act of 1986;
(B) entered the United States before May 5,
1988, resided in the United States on May 5,
1988, and is not a lawful permanent resident;
and
(C) applied for benefits under section 301(a)
of the Immigration Act of 1990.
(p)(1) In computing the prevailing wage level for an
occupational classification in an area of employment for
purposes of subsections (a)(5)(A), (n)(1)(A)(i)(II), and
(t)(1)(A)(i)(II) in the case of an employee of--
(A) an institution of higher education (as defined in
section 101(a) of the Higher Education Act of 1965), or
a related or affiliated nonprofit entity; or
(B) a nonprofit research organization or a
Governmental research organization,
the prevailing wage level shall only take into account
employees at such institutions and organizations in the area of
employment.
(2) With respect to a professional athlete (as defined in
subsection (a)(5)(A)(iii)(II)) when the job opportunity is
covered by professional sports league rules or regulations, the
wage set forth in those rules or regulations shall be
considered as not adversely affecting the wages of United
States workers similarly employed and be considered the
prevailing wage.
(3) The prevailing wage required to be paid pursuant to
subsections (a)(5)(A), (n)(1)(A)(i)(II), and (t)(1)(A)(i)(II)
shall be 100 percent of the wage determined pursuant to those
sections.
(4) Where the Secretary of Labor uses, or makes available to
employers, a governmental survey to determine the prevailing
wage, such survey shall provide at least 4 levels of wages
commensurate with experience, education, and the level of
supervision. Where an existing government survey has only 2
levels, 2 intermediate levels may be created by dividing by 3,
the difference between the 2 levels offered, adding the
quotient thus obtained to the first level and subtracting that
quotient from the second level.
(q) Any alien admitted under section 101(a)(15)(B) may accept
an honorarium payment and associated incidental expenses for a
usual academic activity or activities (lasting not longer than
9 days at any single institution), as defined by the Attorney
General in consultation with the Secretary of Education, if
such payment is offered by an institution or organization
described in subsection (p)(1) and is made for services
conducted for the benefit of that institution or entity and if
the alien has not accepted such payment or expenses from more
than 5 institutions or organizations in the previous 6-month
period.
(r) Subsection (a)(5)(C) shall not apply to an alien who
seeks to enter the United States for the purpose of performing
labor as a nurse who presents to the consular officer (or in
the case of an adjustment of status, the Attorney General) a
certified statement from the Commission on Graduates of Foreign
Nursing Schools (or an equivalent independent credentialing
organization approved for the certification of nurses under
subsection (a)(5)(C) by the Attorney General in consultation
with the Secretary of Health and Human Services) that--
(1) the alien has a valid and unrestricted license as
a nurse in a State where the alien intends to be
employed and such State verifies that the foreign
licenses of alien nurses are authentic and
unencumbered;
(2) the alien has passed the National Council
Licensure Examination (NCLEX);
(3) the alien is a graduate of a nursing program--
(A) in which the language of instruction was
English;
(B) located in a country--
(i) designated by such commission not
later than 30 days after the date of
the enactment of the Nursing Relief for
Disadvantaged Areas Act of 1999, based
on such commission's assessment that
the quality of nursing education in
that country, and the English language
proficiency of those who complete such
programs in that country, justify the
country's designation; or
(ii) designated on the basis of such
an assessment by unanimous agreement of
such commission and any equivalent
credentialing organizations which have
been approved under subsection
(a)(5)(C) for the certification of
nurses under this subsection; and
(C)(i) which was in operation on or before
the date of the enactment of the Nursing Relief
for Disadvantaged Areas Act of 1999; or
(ii) has been approved by unanimous agreement
of such commission and any equivalent
credentialing organizations which have been
approved under subsection (a)(5)(C) for the
certification of nurses under this subsection.
(s) In determining whether an alien described in subsection
(a)(4)(C)(i) is inadmissible under subsection (a)(4) or
ineligible to receive an immigrant visa or otherwise to adjust
to the status of permanent resident by reason of subsection
(a)(4), the consular officer or the Attorney General shall not
consider any benefits the alien may have received that were
authorized under section 501 of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (8 U.S.C. 1641(c)).
(t)(1) No alien may be admitted or provided status as a
nonimmigrant under section 101(a)(15)(H)(i)(b1) or section
101(a)(15)(E)(iii) in an occupational classification unless the
employer has filed with the Secretary of Labor an attestation
stating the following:
(A) The employer--
(i) is offering and will offer during the
period of authorized employment to aliens
admitted or provided status under section
101(a)(15)(H)(i)(b1) or section
101(a)(15)(E)(iii) wages that are at least--
(I) the actual wage level paid by the
employer to all other individuals with
similar experience and qualifications
for the specific employment in
question; or
(II) the prevailing wage level for
the occupational classification in the
area of employment,
whichever is greater, based on the best
information available as of the time of filing
the attestation; and
(ii) will provide working conditions for such
a nonimmigrant that will not adversely affect
the working conditions of workers similarly
employed.
(B) There is not a strike or lockout in the course of
a labor dispute in the occupational classification at
the place of employment.
(C) The employer, at the time of filing the
attestation--
(i) has provided notice of the filing under
this paragraph to the bargaining representative
(if any) of the employer's employees in the
occupational classification and area for which
aliens are sought; or
(ii) if there is no such bargaining
representative, has provided notice of filing
in the occupational classification through such
methods as physical posting in conspicuous
locations at the place of employment or
electronic notification to employees in the
occupational classification for which
nonimmigrants under section
101(a)(15)(H)(i)(b1) or section
101(a)(15)(E)(iii) are sought.
(D) A specification of the number of workers sought,
the occupational classification in which the workers
will be employed, and wage rate and conditions under
which they will be employed.
(2)(A) The employer shall make available for public
examination, within one working day after the date on which an
attestation under this subsection is filed, at the employer's
principal place of business or worksite, a copy of each such
attestation (and such accompanying documents as are necessary).
(B)(i) The Secretary of Labor shall compile, on a current
basis, a list (by employer and by occupational classification)
of the attestations filed under this subsection. Such list
shall include, with respect to each attestation, the wage rate,
number of aliens sought, period of intended employment, and
date of need.
(ii) The Secretary of Labor shall make such list available
for public examination in Washington, D.C.
(C) The Secretary of Labor shall review an attestation filed
under this subsection only for completeness and obvious
inaccuracies. Unless the Secretary of Labor finds that an
attestation is incomplete or obviously inaccurate, the
Secretary of Labor shall provide the certification described in
section 101(a)(15)(H)(i)(b1) or section 101(a)(15)(E)(iii)
within 7 days of the date of the filing of the attestation.
(3)(A) The Secretary of Labor shall establish a process for
the receipt, investigation, and disposition of complaints
respecting the failure of an employer to meet a condition
specified in an attestation submitted under this subsection or
misrepresentation by the employer of material facts in such an
attestation. Complaints may be filed by any aggrieved person or
organization (including bargaining representatives). No
investigation or hearing shall be conducted on a complaint
concerning such a failure or misrepresentation unless the
complaint was filed not later than 12 months after the date of
the failure or misrepresentation, respectively. The Secretary
of Labor shall conduct an investigation under this paragraph if
there is reasonable cause to believe that such a failure or
misrepresentation has occurred.
(B) Under the process described in subparagraph (A), the
Secretary of Labor shall provide, within 30 days after the date
a complaint is filed, for a determination as to whether or not
a reasonable basis exists to make a finding described in
subparagraph (C). If the Secretary of Labor determines that
such a reasonable basis exists, the Secretary of Labor shall
provide for notice of such determination to the interested
parties and an opportunity for a hearing on the complaint, in
accordance with section 556 of title 5, United States Code,
within 60 days after the date of the determination. If such a
hearing is requested, the Secretary of Labor shall make a
finding concerning the matter by not later than 60 days after
the date of the hearing. In the case of similar complaints
respecting the same applicant, the Secretary of Labor may
consolidate the hearings under this subparagraph on such
complaints.
(C)(i) If the Secretary of Labor finds, after notice and
opportunity for a hearing, a failure to meet a condition of
paragraph (1)(B), a substantial failure to meet a condition of
paragraph (1)(C) or (1)(D), or a misrepresentation of material
fact in an attestation--
(I) the Secretary of Labor shall notify the Secretary
of State and the Secretary of Homeland Security of such
finding and may, in addition, impose such other
administrative remedies (including civil monetary
penalties in an amount not to exceed $1,000 per
violation) as the Secretary of Labor determines to be
appropriate; and
(II) the Secretary of State or the Secretary of
Homeland Security, as appropriate, shall not approve
petitions or applications filed with respect to that
employer under section 204, 214(c),
101(a)(15)(H)(i)(b1), or 101(a)(15)(E)(iii) or section
101(a)(15)(E)(iii) during a period of at least 1 year
for aliens to be employed by the employer.
(ii) If the Secretary of Labor finds, after notice and
opportunity for a hearing, a willful failure to meet a
condition of paragraph (1), a willful misrepresentation of
material fact in an attestation, or a violation of clause
(iv)--
(I) the Secretary of Labor shall notify the Secretary
of State and the Secretary of Homeland Security of such
finding and may, in addition, impose such other
administrative remedies (including civil monetary
penalties in an amount not to exceed $5,000 per
violation as the Secretary of Labor determines to be
appropriate; and
(II) the Secretary of State or the Secretary of
Homeland Security, as appropriate, shall not approve
petitions or applications filed with respect to that
employer under section 204, 214(c),
101(a)(15)(H)(i)(b1), or 101(a)(15)(E)(iii) or section
101(a)(15)(E)(iii) during a period of at least 2 years
for aliens to be employed by the employer.
(iii) If the Secretary of Labor finds, after notice and
opportunity for a hearing, a willful failure to meet a
condition of paragraph (1) or a willful misrepresentation of
material fact in an attestation, in the course of which failure
or misrepresentation the employer displaced a United States
worker employed by the employer within the period beginning 90
days before and ending 90 days after the date of filing of any
visa petition or application supported by the attestation--
(I) the Secretary of Labor shall notify the Secretary
of State and the Secretary of Homeland Security of such
finding and may, in addition, impose such other
administrative remedies (including civil monetary
penalties in an amount not to exceed $35,000 per
violation) as the Secretary of Labor determines to be
appropriate; and
(II) the Secretary of State or the Secretary of
Homeland Security, as appropriate, shall not approve
petitions or applications filed with respect to that
employer under section 204, 214(c),
101(a)(15)(H)(i)(b1), or 101(a)(15)(E)(iii) or section
101(a)(15)(E)(iii) during a period of at least 3 years
for aliens to be employed by the employer.
(iv) It is a violation of this clause for an employer who has
filed an attestation under this subsection to intimidate,
threaten, restrain, coerce, blacklist, discharge, or in any
other manner discriminate against an employee (which term, for
purposes of this clause, includes a former employee and an
applicant for employment) because the employee has disclosed
information to the employer, or to any other person, that the
employee reasonably believes evidences a violation of this
subsection, or any rule or regulation pertaining to this
subsection, or because the employee cooperates or seeks to
cooperate in an investigation or other proceeding concerning
the employer's compliance with the requirements of this
subsection or any rule or regulation pertaining to this
subsection.
(v) The Secretary of Labor and the Secretary of Homeland
Security shall devise a process under which a nonimmigrant
under section 101(a)(15)(H)(i)(b1) or section
101(a)(15)(E)(iii) who files a complaint regarding a violation
of clause (iv) and is otherwise eligible to remain and work in
the United States may be allowed to seek other appropriate
employment in the United States for a period not to exceed the
maximum period of stay authorized for such nonimmigrant
classification.
(vi)(I) It is a violation of this clause for an employer who
has filed an attestation under this subsection to require a
nonimmigrant under section 101(a)(15)(H)(i)(b1) or section
101(a)(15)(E)(iii) to pay a penalty for ceasing employment with
the employer prior to a date agreed to by the nonimmigrant and
the employer. The Secretary of Labor shall determine whether a
required payment is a penalty (and not liquidated damages)
pursuant to relevant State law.
(II) If the Secretary of Labor finds, after notice and
opportunity for a hearing, that an employer has committed a
violation of this clause, the Secretary of Labor may impose a
civil monetary penalty of $1,000 for each such violation and
issue an administrative order requiring the return to the
nonimmigrant of any amount paid in violation of this clause,
or, if the nonimmigrant cannot be located, requiring payment of
any such amount to the general fund of the Treasury.
(vii)(I) It is a failure to meet a condition of paragraph
(1)(A) for an employer who has filed an attestation under this
subsection and who places a nonimmigrant under section
101(a)(15)(H)(i)(b1) or section 101(a)(15)(E)(iii) designated
as a full-time employee in the attestation, after the
nonimmigrant has entered into employment with the employer, in
nonproductive status due to a decision by the employer (based
on factors such as lack of work), or due to the nonimmigrant's
lack of a permit or license, to fail to pay the nonimmigrant
full-time wages in accordance with paragraph (1)(A) for all
such nonproductive time.
(II) It is a failure to meet a condition of paragraph (1)(A)
for an employer who has filed an attestation under this
subsection and who places a nonimmigrant under section
101(a)(15)(H)(i)(b1) or section 101(a)(15)(E)(iii) designated
as a part-time employee in the attestation, after the
nonimmigrant has entered into employment with the employer, in
nonproductive status under circumstances described in subclause
(I), to fail to pay such a nonimmigrant for such hours as are
designated on the attestation consistent with the rate of pay
identified on the attestation.
(III) In the case of a nonimmigrant under section
101(a)(15)(H)(i)(b1) or section 101(a)(15)(E)(iii) who has not
yet entered into employment with an employer who has had
approved an attestation under this subsection with respect to
the nonimmigrant, the provisions of subclauses (I) and (II)
shall apply to the employer beginning 30 days after the date
the nonimmigrant first is admitted into the United States, or
60 days after the date the nonimmigrant becomes eligible to
work for the employer in the case of a nonimmigrant who is
present in the United States on the date of the approval of the
attestation filed with the Secretary of Labor.
(IV) This clause does not apply to a failure to pay wages to
a nonimmigrant under section 101(a)(15)(H)(i)(b1) or section
101(a)(15)(E)(iii) for nonproductive time due to non-work-
related factors, such as the voluntary request of the
nonimmigrant for an absence or circumstances rendering the
nonimmigrant unable to work.
(V) This clause shall not be construed as prohibiting an
employer that is a school or other educational institution from
applying to a nonimmigrant under section 101(a)(15)(H)(i)(b1)
or section 101(a)(15)(E)(iii) an established salary practice of
the employer, under which the employer pays to nonimmigrants
under section 101(a)(15)(H)(i)(b1) or section
101(a)(15)(E)(iii) and United States workers in the same
occupational classification an annual salary in disbursements
over fewer than 12 months, if--
(aa) the nonimmigrant agrees to the compressed annual
salary payments prior to the commencement of the
employment; and
(bb) the application of the salary practice to the
nonimmigrant does not otherwise cause the nonimmigrant
to violate any condition of the nonimmigrant's
authorization under this Act to remain in the United
States.
(VI) This clause shall not be construed as superseding clause
(viii).
(viii) It is a failure to meet a condition of paragraph
(1)(A) for an employer who has filed an attestation under this
subsection to fail to offer to a nonimmigrant under section
101(a)(15)(H)(i)(b1) or section 101(a)(15)(E)(iii), during the
nonimmigrant's period of authorized employment, benefits and
eligibility for benefits (including the opportunity to
participate in health, life, disability, and other insurance
plans; the opportunity to participate in retirement and savings
plans; and cash bonuses and non-cash compensation, such as
stock options (whether or not based on performance)) on the
same basis, and in accordance with the same criteria, as the
employer offers to United States workers.
(D) If the Secretary of Labor finds, after notice and
opportunity for a hearing, that an employer has not paid wages
at the wage level specified in the attestation and required
under paragraph (1), the Secretary of Labor shall order the
employer to provide for payment of such amounts of back pay as
may be required to comply with the requirements of paragraph
(1), whether or not a penalty under subparagraph (C) has been
imposed.
(E) The Secretary of Labor may, on a case-by-case basis,
subject an employer to random investigations for a period of up
to 5 years, beginning on the date on which the employer is
found by the Secretary of Labor to have committed a willful
failure to meet a condition of paragraph (1) or to have made a
willful misrepresentation of material fact in an attestation.
The authority of the Secretary of Labor under this subparagraph
shall not be construed to be subject to, or limited by, the
requirements of subparagraph (A).
(F) Nothing in this subsection shall be construed as
superseding or preempting any other enforcement-related
authority under this Act (such as the authorities under section
274B), or any other Act.
(4) For purposes of this subsection:
(A) The term ``area of employment'' means the area
within normal commuting distance of the worksite or
physical location where the work of the nonimmigrant
under section 101(a)(15)(H)(i)(b1) or section
101(a)(15)(E)(iii) is or will be performed. If such
worksite or location is within a Metropolitan
Statistical Area, any place within such area is deemed
to be within the area of employment.
(B) In the case of an attestation with respect to one
or more nonimmigrants under section
101(a)(15)(H)(i)(b1) or section 101(a)(15)(E)(iii) by
an employer, the employer is considered to ``displace''
a United States worker from a job if the employer lays
off the worker from a job that is essentially the
equivalent of the job for which the nonimmigrant or
nonimmigrants is or are sought. A job shall not be
considered to be essentially equivalent of another job
unless it involves essentially the same
responsibilities, was held by a United States worker
with substantially equivalent qualifications and
experience, and is located in the same area of
employment as the other job.
(C)(i) The term ``lays off'', with respect to a
worker--
(I) means to cause the worker's loss of
employment, other than through a discharge for
inadequate performance, violation of workplace
rules, cause, voluntary departure, voluntary
retirement, or the expiration of a grant or
contract; but
(II) does not include any situation in which
the worker is offered, as an alternative to
such loss of employment, a similar employment
opportunity with the same employer at
equivalent or higher compensation and benefits
than the position from which the employee was
discharged, regardless of whether or not the
employee accepts the offer.
(ii) Nothing in this subparagraph is intended to
limit an employee's rights under a collective
bargaining agreement or other employment contract.
(D) The term ``United States worker'' means an
employee who--
(i) is a citizen or national of the United
States; or
(ii) is an alien who is lawfully admitted for
permanent residence, is admitted as a refugee
under section 207 of this title, is granted
asylum under section 208, or is an immigrant
otherwise authorized, by this Act or by the
Secretary of Homeland Security, to be employed.
(t)(1) Except as provided in paragraph (2), no person
admitted under section 101(a)(15)(Q)(ii)(I), or acquiring such
status after admission, shall be eligible to apply for
nonimmigrant status, an immigrant visa, or permanent residence
under this Act until it is established that such person has
resided and been physically present in the person's country of
nationality or last residence for an aggregate of at least 2
years following departure from the United States.
(2) The Secretary of Homeland Security may waive the
requirement of such 2-year foreign residence abroad if the
Secretary determines that--
(A) departure from the United States would impose
exceptional hardship upon the alien's spouse or child
(if such spouse or child is a citizen of the United
States or an alien lawfully admitted for permanent
residence); or
(B) the admission of the alien is in the public
interest or the national interest of the United States.
* * * * * * *
Chapter 4--Inspection, Apprehension, Examination, Exclusion, and
Removal
* * * * * * *
general classes of deportable aliens
Sec. 237. (a) Classes of Deportable Aliens.--Any alien
(including an alien crewman) in and admitted to the United
States shall, upon the order of the Attorney General, be
removed if the alien is within one or more of the following
classes of deportable aliens:
(1) Inadmissible at time of entry or of adjustment of
status or violates status.--
(A) Inadmissible aliens.--Any alien who at
the time of entry or adjustment of status was
within one or more of the classes of aliens
inadmissible by the law existing at such time
is deportable.
(B) Present in violation of law.--Any alien
who is present in the United States in
violation of this Act or any other law of the
United States, or whose nonimmigrant visa (or
other documentation authorizing admission into
the United States as a nonimmigrant) has been
revoked under section 221(i), is deportable.
(C) Violated nonimmigrant status or condition
of entry.--
(i) Nonimmigrant status violators.--
Any alien who was admitted as a
nonimmigrant and who has failed to
maintain the nonimmigrant status in
which the alien was admitted or to
which it was changed under section 248,
or to comply with the conditions of any
such status, is deportable.
(ii) Violators of conditions of
entry.--Any alien whom the Secretary of
Health and Human Services certifies has
failed to comply with terms,
conditions, and controls that were
imposed under section 212(g) is
deportable.
(D) Termination of conditional permanent
residence.--
(i) In general.--Any alien with
permanent resident status on a
conditional basis under section 216
(relating to conditional permanent
resident status for certain alien
spouses and sons and daughters) or
under section 216A (relating to
conditional permanent resident status
for certain alien entrepreneurs,
spouses, and children) who has had such
status terminated under such respective
section is deportable.
(ii) Exception.--Clause (i) shall not
apply in the cases described in section
216(c)(4) (relating to certain hardship
waivers).
(E) Smuggling.--
(i) In general.--Any alien who (prior
to the date of entry, at the time of
any entry, or within 5 years of the
date of any entry) knowingly has
encouraged, induced, assisted, abetted,
or aided any other alien to enter or to
try to enter the United States in
violation of law is deportable.
(ii) Special rule in the case of
family reunification.--Clause (i) shall
not apply in the case of alien who is
an eligible immigrant (as defined in
section 301(b)(1) of the Immigration
Act of 1990), was physically present in
the United States on May 5, 1988, and
is seeking admission as an immediate
relative or under section 203(a)(2)
(including under section 112 of the
Immigration Act of 1990) or benefits
under section 301(a) of the Immigration
Act of 1990 if the alien, before May 5,
1988, has encouraged, induced,
assisted, abetted, or aided only the
alien's spouse, parent, son, or
daughter (and no other individual) to
enter the United States in violation of
law.
(iii) Waiver authorized.--The
Attorney General may, in his discretion
for humanitarian purposes, to assure
family unity, or when it is otherwise
in the public interest, waive
application of clause (i) in the case
of any alien lawfully admitted for
permanent residence if the alien has
encouraged, induced, assisted, abetted,
or aided only an individual who at the
time of the offense was the alien's
spouse, parent, son, or daughter (and
no other individual) to enter the
United States in violation of law.
(F)
(G) Marriage fraud.--An alien shall be
considered to be deportable as having procured
a visa or other documentation by fraud (within
the meaning of section 212(a)(6)(C)(i)) and to
be in the United States in violation of this
Act (within the meaning of subparagraph (B))
if--
(i) the alien obtains any admission
into the United States with an
immigrant visa or other documentation
procured on the basis of a marriage
entered into less than 2 years prior to
such admission of the alien and which,
within 2 years subsequent to any
admission of the alien in the United
States, shall be judicially annulled or
terminated, unless the alien
establishes to the satisfaction of the
Attorney General that such marriage was
not contracted for the purpose of
evading any provisions of the
immigration laws, or
(ii) it appears to the satisfaction
of the Attorney General that the alien
has failed or refused to fulfill the
alien's marital agreement which in the
opinion of the Attorney General was
made for the purpose of procuring the
alien's admission as an immigrant.
(H) Waiver authorized for certain
misrepresentations.--The provisions of this
paragraph relating to the removal of aliens
within the United States on the ground that
they were inadmissible at the time of admission
as aliens described in section 212(a)(6)(C)(i),
whether willful or innocent, may, in the
discretion of the Attorney General, be waived
for any alien (other than an alien described in
paragraph (4)(D)) who--
(i)(I) is the spouse, parent, son, or
daughter of a citizen of the United
States or of an alien lawfully admitted
to the United States for permanent
residence; and
(II) was in possession of an
immigrant visa or equivalent document
and was otherwise admissible to the
United States at the time of such
admission except for those grounds of
inadmissibility specified under
paragraphs (5)(A) and (7)(A) of section
212(a) which were a direct result of
that fraud or misrepresentation.
(ii) is a VAWA self-petitioner.
A waiver of removal for fraud or
misrepresentation granted under this
subparagraph shall also operate to waive
removal based on the grounds of inadmissibility
directly resulting from such fraud or
misrepresentation.
(2) Criminal offenses.--
(A) General crimes.--
(i) Crimes of moral turpitude.--Any
alien who--
(I) is convicted of a crime
involving moral turpitude
committed within five years (or
10 years in the case of an
alien provided lawful permanent
resident status under section
245(j)) after the date of
admission, and
(II) is convicted of a crime
for which a sentence of one
year or longer may be imposed,
is deportable.
(ii) Multiple criminal convictions.--
Any alien who at any time after
admission is convicted of two or more
crimes involving moral turpitude, not
arising out of a single scheme of
criminal misconduct, regardless of
whether confined therefor and
regardless of whether the convictions
were in a single trial, is deportable.
(iii) Aggravated felony.--Any alien
who is convicted of an aggravated
felony at any time after admission is
deportable.
(iv) High speed flight.--Any alien
who is convicted of a violation of
section 758 of title 18, United States
Code (relating to high speed flight
from an immigration checkpoint), is
deportable.
(v) Failure to register as a sex
offender.--Any alien who is convicted
under section 2250 of title 18, United
States Code, is deportable.
(vi) Waiver authorized.--Clauses (i),
(ii), and (iii) shall not apply in the
case of an alien with respect to a
criminal conviction if the alien
subsequent to the criminal conviction
has been granted a full and
unconditional pardon by the President
of the United States or by the Governor
of any of the several States.
(B) Controlled substances.--
(i) Conviction.--Any alien who at any
time after admission has been convicted
of a violation of (or a conspiracy or
attempt to violate) any law or
regulation of a State, the United
States, or a foreign country relating
to a controlled substance (as defined
in section 102 of the Controlled
Substances Act (21 U.S.C. 802)), other
than a single offense involving
possession for one's own use of 30
grams or less of marijuana, is
deportable.
(ii) Drug abusers and addicts.--Any
alien who is, or at any time after
admission has been, a drug abuser or
addict is deportable.
(C) Certain firearm offenses.--Any alien who
at any time after admission is convicted under
any law of purchasing, selling, offering for
sale, exchanging, using, owning, possessing, or
carrying, or of attempting or conspiring to
purchase, sell, offer for sale, exchange, use,
own, possess, or carry, any weapon, part, or
accessory which is a firearm or destructive
device (as defined in section 921(a) of title
18, United States Code) in violation of any law
is deportable.
(D) Miscellaneous crimes.--Any alien who at
any time has been convicted (the judgment on
such conviction becoming final) of, or has been
so convicted of a conspiracy or attempt to
violate--
(i) any offense under chapter 37
(relating to espionage), chapter 105
(relating to sabotage), or chapter 115
(relating to treason and sedition) of
title 18, United States Code, for which
a term of imprisonment of five or more
years may be imposed;
(ii) any offense under section 871 or
960 of title 18, United States Code;
(iii) a violation of any provision of
the Military Selective Service Act (50
U.S.C. App. 451 et seq.) or the Trading
With the Enemy Act (50 U.S.C. App. 1 et
seq.); or
(iv) a violation of section 215 or
278 of this Act,
is deportable.
(E) Crimes of domestic violence, stalking, or
violation of protection order, crimes against
children and.--
(i) Domestic violence, stalking, and
child abuse.--Any alien who at any time
after admission is convicted of a crime
of domestic violence, a crime of
stalking, or a crime of child abuse,
child neglect, or child abandonment is
deportable. For purposes of this
clause, the term ``crime of domestic
violence'' means any crime of violence
(as defined in section 16 of title 18,
United States Code) against a person
committed by a current or former spouse
of the person, by an individual with
whom the person shares a child in
common, by an individual who is
cohabiting with or has cohabited with
the person as a spouse, by an
individual similarly situated to a
spouse of the person under the domestic
or family violence laws of the
jurisdiction where the offense occurs,
or by any other individual against a
person who is protected from that
individual's acts under the domestic or
family violence laws of the United
States or any State, Indian tribal
government, or unit of local
government.
(ii) Violators of protection
orders.--Any alien who at any time
after admission is enjoined under a
protection order issued by a court and
whom the court determines has engaged
in conduct that violates the portion of
a protection order that involves
protection against credible threats of
violence, repeated harassment, or
bodily injury to the person or persons
for whom the protection order was
issued is deportable. For purposes of
this clause, the term ``protection
order'' means any injunction issued for
the purpose of preventing violent or
threatening acts of domestic violence,
including temporary or final orders
issued by civil or criminal courts
(other than support or child custody
orders or provisions) whether obtained
by filing an independent action or as a
pendente lite order in another
proceeding.
(F) Trafficking.--Any alien described in
section 212(a)(2)(H) is deportable.
(G) Evading arrest or detention while
operating a motor vehicle.--Any alien who has
been convicted of, who admits having committed,
or who admits committing acts which constitute
the essential elements of a violation of
section 40B(a) of title 18, United States Code,
is deportable.
(3) Failure to register and falsification of
documents.--
(A) Change of address.--An alien who has
failed to comply with the provisions of section
265 is deportable, unless the alien establishes
to the satisfaction of the Attorney General
that such failure was reasonably excusable or
was not willful.
(B) Failure to register or falsification of
documents.--Any alien who at any time has been
convicted--
(i) under section 266(c) of this Act
or under section 36(c) of the Alien
Registration Act, 1940,
(ii) of a violation of, or an attempt
or a conspiracy to violate, any
provision of the Foreign Agents
Registration Act of 1938 (22 U.S.C. 611
et seq.), or
(iii) of a violation of, or an
attempt or a conspiracy to violate,
section 1546 of title 18, United States
Code (relating to fraud and misuse of
visas, permits, and other entry
documents),
is deportable.
(C) Document fraud.--
(i) In general.--An alien who is the
subject of a final order for violation
of section 274C is deportable.
(ii) Waiver authorized.--The Attorney
General may waive clause (i) in the
case of an alien lawfully admitted for
permanent residence if no previous
civil money penalty was imposed against
the alien under section 274C and the
offense was incurred solely to assist,
aid, or support the alien's spouse or
child (and no other individual). No
court shall have jurisdiction to review
a decision of the Attorney General to
grant or deny a waiver under this
clause.
(D) Falsely claiming citizenship.--
(i) In general.--Any alien who
falsely represents, or has falsely
represented, himself to be a citizen of
the United States for any purpose or
benefit under this Act (including
section 274A) or any Federal or State
law is deportable.
(ii) Exception.--In the case of an
alien making a representation described
in clause (i), if each natural parent
of the alien (or, in the case of an
adopted alien, each adoptive parent of
the alien) is or was a citizen (whether
by birth or naturalization), the alien
permanently resided in the United
States prior to attaining the age of
16, and the alien reasonably believed
at the time of making such
representation that he or she was a
citizen, the alien shall not be
considered to be deportable under any
provision of this subsection based on
such representation.
(4) Security and related grounds.--
(A) In general.--Any alien who has engaged,
is engaged, or at any time after admission
engages in--
(i) any activity to violate any law
of the United States relating to
espionage or sabotage or to violate or
evade any law prohibiting the export
from the United States of goods,
technology, or sensitive information,
(ii) any other criminal activity
which endangers public safety or
national security, or
(iii) any activity a purpose of which
is the opposition to, or the control or
overthrow of, the Government of the
United States by force, violence, or
other unlawful means,
is deportable.
(B) Terrorist activities.--Any alien who is
described in subparagraph (B) or (F) of section
212(a)(3) is deportable.
(C) Foreign policy.--
(i) In general.--An alien whose
presence or activities in the United
States the Secretary of State has
reasonable ground to believe would have
potentially serious adverse foreign
policy consequences for the United
States is deportable.
(ii) Exceptions.--The exceptions
described in clauses (ii) and (iii) of
section 212(a)(3)(C) shall apply to
deportability under clause (i) in the
same manner as they apply to
inadmissibility under section
212(a)(3)(C)(i).
(D) Participated in nazi persecution,
genocide, or the commission of any act of
torture or extrajudicial killing.--Any alien
described in clause (i), (ii), or (iii) of
section 212(a)(3)(E) is deportable.
(E) Participated in the commission of severe
violations of religious freedom.--Any alien
described in section 212(a)(2)(G) is
deportable.
(F) Recruitment or use of child soldiers.--
Any alien who has engaged in the recruitment or
use of child soldiers in violation of section
2442 of title 18, United States Code, is
deportable.
(5) Public charge.--Any alien who, within five years
after the date of entry, has become a public charge
from causes not affirmatively shown to have arisen
since entry is deportable.
(6) Unlawful voters.--
(A) In general.--Any alien who has voted in
violation of any Federal, State, or local
constitutional provision, statute, ordinance,
or regulation is deportable.
(B) Exception.--In the case of an alien who
voted in a Federal, State, or local election
(including an initiative, recall, or
referendum) in violation of a lawful
restriction of voting to citizens, if each
natural parent of the alien (or, in the case of
an adopted alien, each adoptive parent of the
alien) is or was a citizen (whether by birth or
naturalization), the alien permanently resided
in the United States prior to attaining the age
of 16, and the alien reasonably believed at the
time of such violation that he or she was a
citizen, the alien shall not be considered to
be deportable under any provision of this
subsection based on such violation.
(7) Waiver for victims of domestic violence.--
(A) In general.--The Attorney General is not
limited by the criminal court record and may
waive the application of paragraph (2)(E)(i)
(with respect to crimes of domestic violence
and crimes of stalking) and (ii) in the case of
an alien who has been battered or subjected to
extreme cruelty and who is not and was not the
primary perpetrator of violence in the
relationship--
(i) upon a determination that--
(I) the alien was acting is
self-defense;
(II) the alien was found to
have violated a protection
order intended to protect the
alien; or
(III) the alien committed,
was arrested for, was convicted
of, or pled guilty to
committing a crime--
(aa) that did not
result in serious
bodily injury; and
(bb) where there was
a connection between
the crime and the
alien's having been
battered or subjected
to extreme cruelty.
(B) Credible evidence considered.--In acting
on applications under this paragraph, the
Attorney General shall consider any credible
evidence relevant to the application. The
determination of what evidence is credible and
the weight to be given that evidence shall be
within the sole discretion of the Attorney
General.
(b) An alien, admitted as an nonimmigrant under the
provisions of either section 101(a)(15)(A)(i) or
101(a)(15)(G)(i), and who fails to maintain a status under
either of those provisions, shall not be required to depart
from the United States without the approval of the Secretary of
State, unless such alien is subject to deportation under
paragraph (4) of subsection (a).
(c) Paragraphs (1)(A), (1)(B), (1)(C), (1)(D), and (3)(A) of
subsection (a) (other than so much of paragraph (1) as relates
to a ground of inadmissibility described in paragraph (2) or
(3) of section 212(a)) shall not apply to a special immigrant
described in section 101(a)(27)(J) based upon circumstances
that existed before the date the alien was provided such
special immigrant status.
(d)(1) If the Secretary of Homeland Security determines that
an application for nonimmigrant status under subparagraph (T)
or (U) of section 101(a)(15) filed for an alien in the United
States sets forth a prima facie case for approval, the
Secretary may grant the alien an administrative stay of a final
order of removal under section 241(c)(2) until--
(A) the application for nonimmigrant status under
such subparagraph (T) or (U) is approved; or
(B) there is a final administrative denial of the
application for such nonimmigrant status after the
exhaustion of administrative appeals.
(2) The denial of a request for an administrative stay of
removal under this subsection shall not preclude the alien from
applying for a stay of removal, deferred action, or a
continuance or abeyance of removal proceedings under any other
provision of the immigration laws of the United States.
(3) During any period in which the administrative stay of
removal is in effect, the alien shall not be removed.
(4) Nothing in this subsection may be construed to limit the
authority of the Secretary of Homeland Security or the Attorney
General to grant a stay of removal or deportation in any case
not described in this subsection.
* * * * * * *
Dissenting Views
H.R. 5585, the ``Agent Raul Gonzalez Officer Safety Act,''
would establish criminal and immigration penalties for flight
in a motor vehicle from a pursuing U.S. Border Patrol agent or
any federal, state, or local law enforcement assisting in such
pursuit.
I. Background
The United States' border region has long borne the brunt
of the most aggressive immigration enforcement efforts,
including high-speed vehicle pursuits by Border Patrol agents
that too often end in serious injuries and death, most often
for those being pursued.\1\ The number of fatalities resulting
from Border Patrol vehicle pursuits grew from 2 deaths in 2019
to 22 in 2021.\2\ Although law enforcement agencies across the
country have increasingly restricted when vehicle pursuits
could be undertaken, high speed chases along the border have
continued to rise. And while many agencies issued policies
authorizing chases only when there is an immediate risk of
danger to the public, U.S. Customs and Border Protection (CBP)
was slow to revise its own pursuit policy.
---------------------------------------------------------------------------
\1\Sheff, R., Inherent Risks: Policy Analysis and Recommendations
on Revised CBP Vehicle Pursuit Policy, ACLU of New Mexico and ACLU of
Texas (June 2023).
\2\Fact Sheet: The Deadly Trend of Border Patrol Vehicle Pursuits,
ACLU of New Mexico and ACLU of Texas.
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In 2021, following years of public outcry, CBP began making
efforts to update its high- speed vehicle pursuit policies to
better align with public safety concerns.\3\ In September of
2022, several members of Congress (led by Representative
Veronica Escobar (D TX)) wrote a letter to the Commissioner and
Deputy Commissioner of U.S. Customs and Border Protection
pointing out the urgent need to revise the agency's vehicle
pursuit policy following the deaths of 44 people, including
citizens, migrants, and innocent bystanders in the preceding
two years.\4\
---------------------------------------------------------------------------
\3\U.S. Customs and Border Protection Emergency Driving and
Vehicular Pursuits 4510-026A, U.S. Customs and Border Protection (May
2023).
\4\U.S. Congress, House of Representatives, letter to Commissioner
Chris Magnus and Deputy Commissioner, U.S. Customs and Border
Protection (September 13, 2022).
---------------------------------------------------------------------------
CBP's Law Enforcement Safety and Compliance (LESC)
Directorate ultimately conducted an extensive review of vehicle
pursuit policies.\5\ The review examined trends, statistics,
and outcomes associated with CBP pursuits and culminated in
several recommendations for improvement.\6\ Based on the review
and resulting recommendations, the policy that governed CBP
vehicular pursuits was updated to reflect that vehicular
pursuits pose inherent risks to members of the public, officers
and agents, and vehicle occupants. The newly revised CBP
Emergency Driving and Vehicular Pursuits Directive (ED-VP) was
published In January of 2023 and became effective in May of
that year.
---------------------------------------------------------------------------
\5\U.S. Customs and Border Protection, letter to the Honorable
Veronica Escobar, House of Representatives.
\6\Id.
---------------------------------------------------------------------------
The updated ED-VP acknowledges the risks and shifts the
agency's overall approach to a risk-based model when pursuits
occur. Most importantly, the ED-VP adopts a `` reasonableness''
standard that is familiar to, and found throughout, most law
enforcement agencies across the United States.\7\ The ED-VP
also requires application of a Graham Factors Analysis to
vehicular pursuits (identical to the requirement already
established under CBP's use of force directive).\8\ The ED-VP
entrusts agents, officers, and their supervisors with the
ability to conduct pursuits based on their analysis of risk
factors, encourages them to consider other available means of
apprehending suspects, and reaffirms the overall law
enforcement need to conduct pursuits. The ED-VP further
clarifies the role of supervisors and establishes clear
reporting requirements to ensure continuous learning and
performance improvements over time.
---------------------------------------------------------------------------
\7\Id.
\8\See Graham v. Connor, which is used to measure the justification
of use of force by law enforcement officers based upon severity of the
crime committed by a subject, the immediacy of threat posed by a
subject, and the level of resistance encountered from a subject while
considering the foreseeable risk of injury to officers/agents and
others.
---------------------------------------------------------------------------
The ED-VP provides a framework for weighing the risks of
conducting pursuits, such as danger to the public, against the
law enforcement benefit or need. The ED-VP further provides
factors to consider when deciding whether a vehicle should be
pursued, and when a pursuit should be terminated. Many of these
risk factors are self-evident, including road and weather
conditions, speed, and nearby population centers. Officers and
agents must now consider the government's interest in
immediately apprehending an individual, including the severity
of the crime at issue and the level of threat posed by the
individual. The policy prohibits officers and agents from
initiating or continuing pursuit of a vehicle that is exceeding
the speed limit and appears to be overloaded, unless they have
probable cause that a felony involving the use, or threatened
use, of physical force or violence that poses an imminent
threat has been or is about to be committed, and a reasonable
belief that the immediate need to apprehend clearly outweighs
the inherent risks.
II. Concerns Regarding This Legislation
H.R. 5585 is a solution in search of a problem. The ACLU's
CBP Fatal Encounter tracker reported 107 total deaths of non-
law enforcement officers that resulted from Border Patrol-
involved vehicle pursuits between January 2010 and November
2023. In the absence of a hearing on this issue, very little
information is publicly available about the number of Border
Patrol agents who have been killed in high-speed chases.
Notably, the proposed legislation is named in honor of Border
Patrol agent, Raul Gonzalez, Jr., who was killed in an ATV
accident while tracking a group of migrants in December of
2022. However, the facts are unclear as to whether Agent
Gonzalez was involved in a high-speed pursuit at the time of
the crash or even if the migrants he pursued were in a vehicle
at the time of the incident.
It is also important to note that in many of the pursuits
that occur near the border, migrants in the vehicle being
pursued have little to no control over the vehicle they are
being transported in and are typically not suspected of
committing an offense more serious than misdemeanor entry
without inspection. And in the vast majority of these pursuits,
the risks taken, and the harm caused, are largely
disproportionate to any suspected criminal activity.
Moreover, the bill attempts to create a new criminal
offense without defining facts that would make otherwise lawful
conduct unlawful. As drafted, the bill does not require a nexus
between the flight and knowledge or criminal intent, such as a
refusal to heed a law enforcement officer's visual or audible
signal to initiate a vehicle stop. And despite repeated
references to thedangers associated with high-speed chases
during the markup, the bill does not require high-speed flight, such as
speed exceeding the posted speed limit.
Even overlooking the vague definition of the offense as
proposed, prosecutors would be required to prove not that the
Border Patrol agent was acting within their duties as an agent
or employee but that the agent had the legal authority to
engage in a pursuit--which is a considerably more involved
question. In other words, a factfinder would have to determine
whether the agent was abiding by laws and regulations in effect
at the time of the pursuit.
Representative Sheila Jackson Lee (D-TX) offered an
amendment at the markup that would have required proof that a
pursuing Border Patrol agent was acting within their official
duties--meaning within the scope of what an agent is employed
to do. The Jackson Lee amendment's proposed language mirrored
existing federal criminal statutes that prohibit the commission
of various offenses, including assault, murder, and
manslaughter, perpetrated against officers and employees of the
United States, and foreign officials, while engaged in the
performance of their official duties.
In addition to its technical deficiencies, H.R. 5585 is of
great concern because it would also expand mandatory minimum
penalties that would apply to conduct without proof of intent.
In general, flight from a Border Patrol agent in a motor
vehicle would be a felony punishable by not more than two years
imprisonment and a fine. The bill would require mandatory
sentences of at least five years and up to ten years, depending
on whether serious bodily injury or death occurs. These
mandatory minimum penalties would be triggered without proof
that a defendant intentionally caused serious bodily injury or
death.
Democrats have long opposed the creation of new criminal
offenses and the imposition and expansion of mandatory minimum
penalties. Mandatory minimum sentencing schemes undermine the
overarching directive set forth in 18 U.S.C. 3553(a), which
directs sentencing judges to consider the totality of the
circumstances to impose a sentence sufficient but not greater
than necessary to achieve the goals and purposes of federal
sentencing. The Jackson Lee amendment would have eliminated the
mandatory minimum penalties in the bill while maintaining the
proposed maximum penalties.
In addition to the concerns regarding the criminal aspects
of this bill, the immigration portion of this bill is a
solution in search of a problem. People who are convicted of
fleeing law enforcement are already deportable and
inadmissible. U.S. immigration law gives the federal government
the power to strip lawfully present immigrants of their
immigration status and to prevent others from gaining entry or
status.
Section 212 of the Immigration and Nationality Act (INA)
provides the reasons a non-citizen may be determined to be
inadmissible, and Section 237 contains the INA's deportability
provisions.\10\ Both sections contain similar, but not entirely
identical grounds, ranging from criminal convictions and
security/terrorism grounds to foreign policy and public charge-
related grounds. Section 212 applies to individuals who are
applying for status in the United States, whereas Section 237
generally applies to individuals who have been lawfully
admitted into the United States and are lawfully present in the
United States.
---------------------------------------------------------------------------
\10\INA Sec. Sec. 212; 237.
---------------------------------------------------------------------------
Section 212(a)(2) and Section 237(a)(2) of the INA contain
the criminal-related inadmissibility and deportability
grounds.\11\
---------------------------------------------------------------------------
\11\INA Sec. Sec. 212(a)(2); 237(a)(2).
---------------------------------------------------------------------------
Section 237(a)(2)(A) renders deportable any noncitizen who
``is convicted of some crime involving moral turpitude
committed within five years . . . after the date of
admission.''\12\ Further, the conviction must be one ``for
which a sentence of one year or longer may be imposed.''\13\
This means that the actual sentence imposed need not be one
year of imprisonment, but rather that if one is convicted of
the offense, one could be sentenced to at least one year in
prison.
---------------------------------------------------------------------------
\12\INA Sec. Sec. 212(a)(2).
\13\Id.
---------------------------------------------------------------------------
Section 212(a)(2)(A)(i) is broader--it states that any
noncitizen ``convicted of, or who admits to committing acts
which constitute essential elements of . . . a crime involving
moral turpitude (other than a purely political offense) or an
attempt or conspiracy to commit such a crime . . . is
inadmissible.''\14\
---------------------------------------------------------------------------
\14\INA Sec. 212(a)(2)(A)(i).
---------------------------------------------------------------------------
People who are convicted of fleeing law enforcement are
already deportable and inadmissible. The Board of Immigration
Appeals, as upheld by multiple appellate circuits, previously
determined that knowingly fleeing or eluding law enforcement is
a crime involving moral turpitude (CIMT).\15\ In many
jurisdictions, such a crime, especially if it results in injury
or death, is punishable by a year or more in prison. Under
current immigration law, a CIMT conviction where the crime is
punishable by one year or more makes an individual deportable,
and any conviction of or admission to acts constituting a CIMT
makes an individual inadmissible.
---------------------------------------------------------------------------
\15\See, e.g., Granados v. Garland, 992 F.3d 755 (9th Cir. 2021);
Cano-Oyarzabal v. Holder, 774 F.3d 914 (7th Cir. 2014) (``Knowingly
fleeing or attempting to elude an officer is an act wrong in itself and
therefore a crime involving moral turpitude.'').
---------------------------------------------------------------------------
However, this bill makes a significant change by not
requiring that an individual be convicted of the crime to
render them deportable. Right now, if someone commits or admits
to committing acts constituting the elements of the crime of
knowingly fleeing or evading law enforcement, they would be
rendered inadmissible, but to be rendered deportable,
currently, a conviction is required. This bill would erase that
conviction requirement--allowing someone to be rendered
deportable, even if they have never been convicted of a crime.
The deportability grounds are not about undocumented
immigrants, who are already removable. They apply only to
people who are lawfully present in the United States. Without
requiring a conviction, this raises serious due process
concerns for longstanding legal residents. At markup,
Representative Escobar (D-TX) offered an amendment to require a
conviction before a person can be deported under this new
ground. Republicans defeated the amendment on a party line
vote.
The majority consistently conflated the deportability and
inadmissibility grounds in their reasoning for opposing the
amendment. While there are exceptions, the vast majority of the
deportability grounds require a conviction. That is because
deportability grounds generally apply to those who are already
here and came lawfully and have often lived in the United State
for a long time. As was discussed by Representatives Escobar
and Jayapal (D-WA), sadly, there are legitimate, non-extralegal
reasons why an individual might be concerned about being pulled
over by a Border Patrol officer or law enforcement officer.
H.R. 5585 is an unnecessary piece of legislation that would
create new mandatory minimum sentences and have significant
unintended consequences for long-term residents of this county.
Instead of working with Democrats to advance bipartisan
legislation, the Majority has once again advanced a
fundamentally unserious proposal to close an imaginary gap in
the law.
For all of these reasons, I dissent, and I urge all of my
colleagues to oppose this legislation.
Jerrold Nadler,
Ranking Member.