AILA’s Section-by-Section Analysis of the Immigration Reform Act of 2004 (S. 2010)
(Provided by the American Immigration Lawyers Association)

February 3, 2004

Section-by-Section Analysis of S. 2010:
“The Immigration Reform Act of 2004: Strengthening America’s National Security, Economy, and Families”

Bill Sponsors: Senators Chuck Hagel (R-NE) and Tom Daschle (D-SD)

Title I. Family Reunification 
Section 101. Treatment of Immediate Relatives with Respect to the Family Immigration Cap. 
This section exempts immediate relatives from the family-sponsored immigrant cap and makes the necessary technical and conforming amendments to carry out this change.

Section 102. Reclassification of Spouses and Minor Children of Legal Permanent Residents as Immediate Relatives. 
Amends the definition of immediate relatives in the INA to include spouses and minor children of legal permanent residents and reallocates the number of available immigrant visas among the remaining categories. Provides that spouses or children who accompany or follow to join their spouse or parent will be entitled to the same order of consideration provided to the spouse or parent.

Section 103. Exceptions. 
Waives the unlawful presence provisions of INA § 212(a)(9)(B)(iii) and (C)(i)(I) for the spouses and children of U.S. citizens or permanent residents and the parents of U.S. citizens on whose behalf a family-based petition has been filed or who are derivative beneficiaries in connection with such a filing. 

Title II. Willing Worker Program

Section 201. Willing Workers.

Amends the definition of H-2B worker to mean a nonimmigrant worker who is coming to the U.S. temporarily to engage in short-term service or labor for not more than nine months. Adds a new subsection 101(a)(15)(H)(ii)(c) for nonimmigrant workers coming to perform labor or service, other than that performed by workers in the H-1B, H-2A, H-2B, L, O, or P nonimmigrant categories, where a qualified American worker cannot be identified.

Section 202. Recruitment of United States Workers.

Sets forth the recruitment steps required of employers seeking to hire H-2B or H-2C workers. In the case of H-2B workers, the recruitment must be undertaken 14 days prior to the filing of a “labor attestation application” with the Secretary of Labor, discussed in § 203 below. In the case of H-2C workers, the recruitment must be undertaken 30 days prior to the filing of the labor attestation application. 

Employers must: (1) submit a copy of the job opportunity to the Department of Labor’s (DOL’s). United States Employment Service (ES), which will acknowledge receipt of the job opportunity description; (2) authorize the ES to post the job opportunity on ‘America’s job bank,’ local job banks, and with unemployment agencies and other pertinent referral and recruitment sources; (3) authorize the ES to notify the State Federation of Labor in the state of the job opportunity; (4) post the job description in conspicuous locations at the job site; (5) advertise the job opportunity in a publication with the highest circulation likely to be patronized by potential workers for at least three consecutive days for H-2B workers and for at least 10 consecutive days for H-2C workers; and (6) advertise the job opportunity in other professional, trade, and ethnic publications likely to be read by potential workers.

Section 202 also requires an employer to have offered the job to any qualified eligible U.S. worker that applies, and to maintain documentation of recruitment efforts for at least one year after the employment relationship is terminated.

Section 203. Admission of Willing Workers.

Employers wishing to hire H-2B or H-2C workers must file an application with the Secretary of Labor attesting that: (1) the employer will pay the nonimmigrant worker wages that are the greater of the actual wage level paid to individuals with similar experience and qualifications for the specific job, or the prevailing wage level for the occupational classification in the particular area of employment. The prevailing wage level will be the wage rate set forth in any applicable collective bargaining agreement, or, if the job is not covered by a collective bargaining agreement, a wage determination under either the Davis-Bacon Act or the Service Contract Act of 1965; (2) the employer will offer the same wages, benefits, and working conditions as it offers to similarly employed U.S. workers; (3) there is not a strike, lockout, or labor dispute in the occupational classification at the place of employment; (4) the employer will abide by applicable laws and regulations relating to the right of workers to join or organize a union; (5) the employer has provided notice of the filing of the application to its employees’ bargaining representative, or, if there is no bargaining representative, has posted notice of the filing in a conspicuous location at the place of employment. The notice must be posted for 10 business days in the case of an H-2B worker, and for 25 business days in the case of an H-2C worker; (6) the employer has not required the nonimmigrant worker to pay any fee or charge for preparing the application; (7) the employer will not hire nonimmigrant workers with less training or experience than is minimally required to perform the job duties; (8) the employer has not displaced and will not displace a U.S. worker within 60 days prior or 60 days following the filing of the application; (9) the employer has complied with the applicable recruitment requirements; and (10) the employer will not impose any restrictions on U.S. workers that will not be imposed on the nonimmigrant workers.

In addition, this section requires that the labor attestation application be accompanied by: (1) a copy of the job offer describing wages and other terms and conditions of employment; (2) a statement of minimum education, training, experience, and requirements for the job; (3) copies of the recruitment documentation; (4) copies of the recruitment advertisements; and (5) a copy of the ES’s acknowledgment of receipt of the job opportunity.

Upon the Secretary of Labor’s approval of the application, the employer must file a petition for a nonimmigrant worker with U.S. Citizenship and Immigration Services.

Section 204. Worker Protections.

Institutes a series of worker protection measures, including: 

(1) ensuring continuation of an employee’s rights in collective bargaining agreements or employment contracts;

(2) prohibiting the denial to nonimmigrant workers of any rights or remedies under Federal, State or local labor laws that are applicable to similarly employed U.S. workers; 

(3) making it unlawful for employers to retaliate against non-immigrant whistleblower employees;

(4) requiring the Secretaries of Labor and Homeland Security to establish a process under which nonimmigrant whistleblowers may be allowed to seek other appropriate employment; 

(5) (i) Requiring the Secretary of Labor and the Department of Justice’s Special Counsel of the Office of Special Counsel for Immigration-Related Unfair Employment Practices (Special Counsel) to develop a process for the receipt, investigation, and disposition of complaints respecting a petitioner’s failure to meet a condition specified in the labor attestation application or the misrepresentation of a material fact therein, A complaint may be filed with either the Secretary or Special Counsel and must be filed within 12 months after the failure or misrepresentation became known or should have become known. The Secretary and Special Counsel must determine jointly if a reasonable basis exists to believe that such a failure or misrepresentation occurred within 30 days after the complaint is filed. If a determination is made that a reasonable basis exists, the Secretary or Special Counsel may require the parties to enter into a 60-day mediation period, with the option to extend the mediation process another 60 days if it appears the complaint can be so resolved. If the complaint is not resolved through mediation, the Secretary or Special Counsel, within 30 days, will issue a notice providing an opportunity for a hearing. If the Secretary or Special Counsel determines that no reasonable basis exists, then either party will have the opportunity to appeal the determination and will be provided a hearing. If no determination of reasonable basis is made within 30 days of receipt of the complaint, either party can request a hearing through the Office of the Chief Administrative Hearing Officer (OCAHO). If either party disagrees with the determination of the Secretary or Special Counsel, they may appeal the decision to the (OCAHO), and if either party disagrees with the determination of the OCAHO, they may appeal the decision to an Administrative Law Judge. If the Secretary or Special Counsel determine that there was a failure to meet a requirement or a misrepresentation in an application, they can award equitable relief and various civil monetary penalties not to exceed $2,500 per violation. In addition, the Secretary of Homeland Security may not approve petitions for a nonimmigrant worker filed by the employer for at least one year. If an employer can show that its act or omission was in good faith, then the Secretary of Homeland Security can continue to accept applications from the employer. If a willful failure to meet a requirement or a willful misrepresentation is determined, the Secretary of Labor can award equitable relief and various civil monetary penalties not to exceed $7,500 per violation, with a two-year bar on the filing of petitions. If willful failure or misrepresentation led to the displacement of U.S. workers, the Secretary of Labor can award equitable relief and various civil monetary penalties not to exceed $35,000 per violation, with a three-year bar on the filing of petitions; and

(6) giving the Secretary of Labor and DOJ’s Special Counsel the authority to initiate and pursue investigations and audits of employers to ensure that they do not violate the rights of workers described in this section. 

Section 205. Notification of Employee Rights.

Requires employers of H-2B or H-2C aliens to provide the nonimmigrant worker with the same notification of his or her rights and remedies under federal, state , and local laws that the employer is required to provide to U.S. workers. This section also requires employers to make available to U.S. employees a copy of both the labor attestation application and the petition for a nonimmigrant worker filed on behalf of the nonimmigrant worker. 

Section 206. Portability.

Provides that H-2C nonimmigrant workers may change employers only after the nonimmigrant worker has been employed by the original petitioning employer for at least three months from the date of admission or the date such status was acquired. Prohibits H-2B workers from changing employers after they have been employed by the petitioning employer. A waiver of both the three-month H-2C employment requirement and the H-2B employment requirement is available in cases where the employer violates a term or condition of sponsorship, or any other applicable law or regulation relating to the employment, or where the personal circumstances of the nonimmigrant worker warrant a change in employment (i.e. for family, medical, humanitarian or other reasons). Employment with the new employer can commence upon the filing of a new labor attestation application and employment authorization will continue until the new petition is adjudicated.

Section 207. Spouses and Children of Willing Workers.

Provides for derivative status for the spouses and children who accompany or follow to join an H-2B or H-2C worker. 

Section 208. Petitions by Employer Groups and Unions.

Provides that petitions for H-2B or H-2C employees may be filed by an associated or affiliated group of employers that has multiple openings for similar employment or by a union. If approved, the petition will be valid for employment in the described positions for any of the member employers, the union, or union consortium, providing the employing entity has complied with all recruitment requirements and paid the requisite fees. This section also clarifies that recruiting entities or job shops are not allowed to file petitions.

Section 209. Processing Time For Petitions.

Requires the Secretary of Labor to review the labor attestation application and issue a determination within 21 days of the filing date. Requires the Secretary of Homeland Security to adjudicate petitions and derivative applications associated with the petitions within 60 days after a completed petition is filed.

Section 210. Terms of Admission.

Authorizes an initial period of admission for H-2B nonimmigrant workers of not more than 9 months from the date of the application for admission in any one-year period, with a total period (including extensions) of not more than 36 months in any four-year period. H-2C workers are provided an initial period of admission of not more than two years with the possibility of one two-year extension, for a total period not exceeding four years. 

These limitations do not apply if the nonimmigrant worker has filed for adjustment of status or is the beneficiary of an employment-based petition, if 365 days have elapsed since the filing of the labor certification application (if required) or immigrant worker petition, In such cases, the Secretary of Homeland Security shall extend the stay of the nonimmigrant worker in one-year increments until a final decision is reached. 

Section 211. Number of Visas Issued.

Provides that the number of visas for H-2C nonimmigrant workers may not exceed 250,000 for each of the five fiscal years following publication of final regulations. The number of visas for nonimmigrant workers classified as H-2B nonimmigrants may not exceed 100,000 in each of the five fiscal years following publication of final regulations and will revert to the current number (66,000) thereafter. 

Section 212. Immigration Study Commission.

Requires the establishment of a 12-member Immigration Study Commission that will review the impact of this Act on the national security of the U.S., the national economy, and families, and make recommendations to Congress. The majority and minority leaders of both the House and Senate will appoint members to the Commission, which must be established three years after the date of enactment. The Commission will report preliminary findings one year after all members are appointed and will issue a final report two years after such appointments are finalized. The Commission will be housed within the Bureau of Citizenship and Immigration Services. 

Section 213. Change of Status.

Provides that H-2B and H-2C nonimmigrants will be eligible to change status to any other immigrant or nonimmigrant classification for which they may be eligible. 

Section 214. Adjustment of Status to Lawful Permanent Resident.

Provides that H-2B and H-2C nonimmigrant workers will be eligible for an employment-based immigrant visa pursuant to INA § 203(b)(3), without regard to the numerical limitations of INA §§ 201 or 202, and for adjustment of status upon the filing of a petition for such visa by the employer or by a nonimmigrant worker who has been employed for at least three years. Spouses and children will be eligible as derivative beneficiaries. Dual intent is permissible.

Section 215. Grounds of Inadmissibility.

Exempts H-2B and H-2C nonimmigrants from the following grounds of inadmissibility: INA § 212(a)(5) (labor certification and qualifications for certain immigrants); (6)(A) (aliens present without admission or parole); (6)(B) (failure to attend removal proceedings); (6)(C) (misrepresentation); (6)(G) (student visa abusers); (7) (documentation requirements); (9) (aliens previously removed); and (10)(B) (guardian required to accompany helpless alien).

Section 216. Petition Fees.

Requires employers filing petitions for H-2B or H-2C nonimmigrant workers to pay a filing fee based on processing costs and a secondary fee that is determined by the number of employees already employed by the petitioner. These secondary fees range from $250 to $1000 for H-2C nonimmigrants, and from $125 to $500 for H-2B nonimmigrants. The fees will be distributed in the following manner: 15% for the Department of Homeland Security, 20% for the Department of Labor, 15% for the State Department, 20% for the Department of Labor and the Office of Special Counsel for the complaint process, and 30% for Border Secruity.

Section 217. Termination of H-2C Temporary Worker Program.

Provides that the H-2C temporary worker program created under the Act will sunset five years after publication of final implementing regulations. Congress must review the program prior to its expiration based on the findings and recommendations of the Immigration Study Commission created under section 212 of the Act.

Section 218. Definitions.

Amends the INA to include definitions of terminology used in the Act, including “employer,” “job opportunity, “lays off,” and “U.S. worker.”

Section 219. Collective Bargaining Agreements.

Ensures that H-2B and H-2C workers are eligible for protection under collective bargaining agreements.

Section 220. Report on Wage Determination.

Requires the Bureau of Labor Statistics to issue a report to the appropriate House and Senate Committees two years after the enactment of the Act that addresses: whether the H-2B and H-2C programs have impacted the wages of U.S. workers, whether changes should be made for a future wage system, whether the use of private wage surveys would provide accurate and reliable information to determine wage rates, and other relevant recommendations. 

Section 221. Ineligibility for Certain Nonimmigrant Status.

Bars H-2B and H-2C nonimmigrants, as well as aliens in the earned adjustment program created by Title III of this Act, who violate a term or condition of such status, from eligibility for future status. In addition, aliens who enter the U.S. after the date of enactment without being admitted or paroled are ineligible for H-2B or H-2C status.

Section 222. Investigations by Department of Homeland Security during Labor Disputes.

This section responds to the risk that accusations of immigration violations will be used by employers to undermine efforts by employees to exercise their employment rights. It specifies that before the Department of Homeland Security gets involved in an immigration enforcement action, it should acquire certain pieces of information in order to ascertain if there is an ongoing labor dispute. If the Department of Homeland Security determines that “there is a labor dispute in progress” or that “information was provided to the Department of Labor to retaliate against employees for exercising their employment rights,” the immigration officer in charge of the Department of Homeland Security enforcement team must ensure, to the extent possible, that any workers who are arrested or detained and are necessary for the prosecution of any violations are not removed from the country without notifying the law enforcement agency that has jurisdiction over the violations. 

Section 223. Protection of Witnesses.

Provides for a stay of removal for an alien against whom removal proceedings have been initiated if he or she has filed, or is a material witness in connection with, a workplace claim, unless it can be shown that the removal is wholly independent of the workplace claim and the claim was filed with a bad faith intent to delay or avoid removal or the alien has engaged in criminal conduct or is a threat to national security. This section also provides for the confidentiality of immigration information obtained during administrative proceedings.

Section 224. Document Fraud.

Increases the penalty for document fraud when committed principally for commercial advantage or financial gain. 

Title III. Access to Earned Adjustment

Section 301. Adjustment of Status.

(a) generally
Adds a new INA § 245B providing for an “Earned Adjustment” Program. To be eligible for adjustment of status under the Earned Adjustment Program, an alien must establish: (1) evidence of continuous physical presence in the U.S. (i.e., that he or she: (a) was present for at least five years preceding the date of the Act’s introduction; (b) was not legally present on the date of introduction (for purposes of this paragraph, an alien who has violated any conditions of his or her visa shall not be considered to be legally present); and (c) has not departed from the U.S. except for brief, casual and innocent departures.); (2) admissibility under INA §212(a); (3) proof of employment for at least three of the five years immediately preceding the date of the Act’s introduction and at least one year following the date of enactment. An exception is made to the three-year employment requirement for aliens under 20 years of age on the date of introduction, and the one-year employment requirement will be reduced for individuals who cannot demonstrate such employment as the result of a physical or mental disability or because of pregnancy. Applicants can fulfill these requirements with multiple employers; (4) payment of all federal income taxes owed for employment during the three-year employment period preceding the date the application was filed; (5) basic citizenship (English & civics) skills or provide evidence of enrollment in citizenship class unless the immigrant is physically or developmentally disabled. This requirement may be waived for aliens 65 years of age or older on the date of filing; (6) clearance from the FBI and DHS by submitting fingerprints and undergoing any other necessary investigations; and (7) Registration in accordance with the Military Selective Service Act, if eligible.

Section 301 also provides for adjustment of status for the spouses and children (under 21 years of age on the date of enactment) of principal aliens eligible to adjust under this section. The Act also provides adjustment eligibility for certain battered spouses and children.

Aliens granted permanent residence under the Earned Adjustment Program will not be counted against numerical visa limitations. 

(b) Grounds of Inadmissibility.
Provides that the Secretary of Homeland Security, in determining an alien’s admissibility for purposes of the Earned Adjustment Program, may not waive certain grounds of inadmissibility, including grounds related to public health, the commission of crimes, threats to national security, and polygamists and child abductors. The Secretary of Homeland Security may waive certain other grounds of inadmissibility for humanitarian purposes, to ensure family unity, or when otherwise in the public interest. 

(c) Treatment of Applicants. 
Aliens who submit applications for adjustment of status under the Earned Adjustment Program, including spouses and children, will undergo security clearances, as deemed appropriate by the Secretary of Homeland Security, after which they will be granted employment authorization and permission to travel abroad. In addition, adjustment applicants may not be detained, determined inadmissible, or removed pending final adjudication of the application unless they commit an act rendering them ineligible for such adjustment. An alien in removal proceedings who establishes eligibility for adjustment under this section will be entitled to termination of the proceedings pending adjudication of the application, unless the proceedings are based on criminal or national security grounds.

(d) Apprehension Before Application Period. 
Immigrants apprehended before the beginning of the application period described in § 301 and who can establish eligibility for adjustment may not be removed from the U.S. until they have had an opportunity, during the first 180 days of the application period, to complete their filing, unless they have engaged in criminal activity or are a threat to national security.

(e) Confidentiality of Information.
Establishes a criminal penalty with a corresponding fine of up to $10,000 for any officer or employee of a federal agency or bureau who uses, publishes, or permits anyone outside the agency or bureau to view information furnished in an adjustment application for any purpose other than a determination on the application. An exemption is created which requires the Secretaries of Homeland Security and State to provide information furnished pursuant to such application in connection with a criminal or national security investigation. 

(f) Penalties for False Statements in Applications. 
Establishes a criminal penalty of up to five years imprisonment and/or a fine for persons who file or assist in filing an application for adjustment containing false statements. 

(g) Ineligibility for Public Benefits. 
An alien granted adjustment of status under this act will not be eligible to receive certain means-tested public benefits unless he or she meets the eligibility criteria under Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996.

(h) Relationship of Application to Certain Orders.
Aliens with an order of removal, exclusion, deportation, or voluntary departure may apply for adjustment under this Act without filing a separate motion to reopen, reconsider or vacate such order, and the filing of the application will stay the removal or detainment unless such actions are based on criminal or national security grounds. 

(i) Application of Other Immigration and Nationality Act Provisions 
Ensures that nothing in this title precludes an alien from seeking adjustment of status under any other provision of law for which he or she may be eligible. 

(j) Administrative and Judicial Review. 
Provides for both administrative and judicial review of a determination respecting an application for adjustment under the Act, as well as a stay of removal pending a final decision, unless such removal is based on criminal or national security grounds. 

(k) Dissemination of Information on Adjustment Program. 
During the 12 months following issuance of final regulations, the Secretary of Homeland Security, in cooperation with approved entities, must broadly disseminate information concerning the Earned Adjustment Program and its eligibility requirements. The Secretary of Homeland Security must also disseminate information to employers and labor unions, advising them of their rights and the rights of workers applying for adjustment of status under this section. The information must be made available in the languages spoken in the top 15 immigrant sending countries.

(l) Employer Protections
Provides that employers of applicants for adjustment under this program will not be subject to criminal tax liability relating to the employment of these individuals. In addition, employers providing such applicants with employment records will not be subject to civil and criminal liability for employing unauthorized aliens.

(m) Authorization of Funds; Fines.
Authorizes appropriations for the Department of Homeland Security of the funds necessary to begin processing applications under this section. Applicants 18 years of age and over must pay a fine of $1,000 in connection with their applications. Sixty percent of the funds collected will go to the Department of Homeland Security for implementing and processing adjustment applications, while the remaining 40% will be made available jointly to the Departments of Homeland Security and State to cover expenses incurred in connection with the review of applications filed by immediate relatives as a result of the amendments made by Title I of this Act. 

(n) Transitional Workers. 
Aliens who are physically present in the U.S. on the date of the Act’s introduction and who seek to adjust under this section but who do not meet the continuous physical presence or employment requirements, may apply for “transitional worker” status for a period of not more than three years. Such individuals will be granted employment authorization and permission to travel abroad once the requisite security checks have been performed. These individuals will be eligible for adjustment if: (1) they apply for transitional worker status; (2) are employed lawfully in the U.S. for more than two but less than three of the five years immediately preceding the Act’s introduction and for at least two years following the enactment date (with the same exceptions made for age and disability as were outlined above); and (3) meet all the other requirements for adjustment set forth above. Spouses and children will be eligible for derivative status. Application for transitional worker status must be submitted no later than three years from the date on which final implementing regulations are issued. Regulations implementing § 301 must be issued within 120 days of enactment.

Section 302. Correction of Social Security Records. 

Allows aliens who are granted adjustment of status under the Act to correct their social security records by exempting them from criminal penalties under the Social Security Act. 


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