Border Security and Immigration Reform Act - H.R.6136 (Preview)
Summary
H.R. 6136 enhances enforcement of existing immigration law, closes immigration enforcement loopholes, ends the catch and release policy, provides $25 billion in funding to secure the border, provides a legislative solution for the current beneficiaries of the Deferred Action for Childhood Arrivals (DACA) program, and establishes a new merit-based visa program. Specific provisions of the bill include:
Division A – Border Enforcement
Title I: Border Security
Title I strengthens the requirements for barriers along the southern border by requiring the Secretary of the Department of Homeland Security to improve physical barriers, tactical infrastructure, and technology to achieve situational awareness and operational control of the border. Physical barriers includes reinforced fencing, border wall system, and levee walls while tactical infrastructure refers to boat ramps, access gates, checkpoints, lighting, and roads. Technology includes tower-based surveillance technology, deployable ground surveillance equipment, vehicle and dismount exploitation radars, border tunneling detection technology, unattended surveillance sensors, vehicle-mounted and portable surveillance capabilities, and unmanned aerial vehicles.
Section 1113 requires the Secretary to deploy specific capabilities to each sector and transit zone including San Diego Sector, El Centro Sector, Yuma Sector, Tucson Sector, El Paso Sector, Big Bend Sector, Del Rio Sector, Laredo Sector, Rio Grande Valley Sector, Blaine Sector, Spokane Sector, Havre Sector, Grand Forks Sector, Detroit Sector, Buffalo Sector, Swanton Sector, and Houlton Sector. The Secretary is provided flexibility in deployment of capabilities depending on current needs to achieve situational awareness and operational control of the border and under exigent circumstances.
Title I reforms the border security technology acquisition program by requiring the Secretary to ensure each program with a total expenditure of $300 billion or more has a written acquisition baseline, is meeting cost, schedule, and performance thresholds, and has a plan for meeting implementation objectives.
The Title authorizes the National Guard to support securing the southern border. In addition, the Title establishes a National Border Security Advisory Committee to advise, consult, report to, and make recommendations to the Secretary on matters relating to border security. Further, the Title directs the Secretary to submit a southern border threat analysis to assess current and potential terrorism and criminal threats, improvements needed at and between ports of entry, gaps in law, policy, and coordination that hinder border security efforts, the current percentage of situational awareness and operational control along the southern border, and traveler crossing times. The U.S. Customs and Border Protection shall also submit a Border Patrol Strategic Plan within 180 days and every 5 years thereafter.
The Secretary is authorized to establish Tunnel Task Forces to detect and remediate tunnels that breach the international border. The Title also authorizes a pilot program using electromagnetic spectrum to support border security operations. The Title establishes a Biometric Identification Transnational Migration Alert Program to address and reduce threats to national security, border security, and public safety before such threats reach the international border.
Division B of Title I directs the Commissioner of U.S. Customs and Border Protection (CBP) to hire, train, and maintain by 2023 an active duty presence of no fewer than 26,370 full-time agents and 27,725 full-time officers, 1,675 agents for Air and Marine Operations, 300 new K-9 units, 100 horseback officers and 50 horses, an increase of 50 officers for search and rescue operations, an increase of 50 officers focused on tunnel detection and technology, 631 agricultural specialists, no fewer than 550 special agents within the Office of Professional Responsibility, and no fewer than 700 full-time equivalents in the Office of Intelligence. The Title provides CBP authority for temporary employment and retention initiatives.
The Title includes the Anti-Border Corruption Reauthorization Act, which allows the Commissioner of U.S. Customs and Border Protection to waive the pre-employment polygraph for candidates that are either (1) state and local law enforcement officers who have passed a polygraph examination in the last ten years and are not under investigation or guilty of misconduct, (2) Federal law enforcement officers who have at least three consecutive years of experience, hold a current Tier 4 or Tier 5 background investigation, and are not under investigation or guilty of misconduct, or (3) members of the armed services and veterans with at least three consecutive years in the military, have held a security clearance in the last 5 years, hold or have held a current Tier 4 or Tier 5 background investigation, and have not been dishonorably discharged. The House passed H.R. 2213 on June 7, 2017 by a vote of 282-137.
Finally, Title I authorizes Operation Stonegarden, a grant programs for eligible law enforcement agencies to enhance border security. The Title provides for $110 million for each of fiscal years 2019-2023.
Title II: Emergency Port of Entry Personnel and Infrastructure Funding
Title II of Division A authorizes the construction of new ports of entry along the northern and southern borders at locations determined by the Secretary. By 2023, the General Services Administrator shall expand or modernize high-priority ports of entry on the southern border. The Title ensures secure communications are available to Border Patrol Agents and authorizes $33 million for fiscal years 2019-2023 to carry out the Border Security Deployment Program, an integrated surveillance and intrusion detection system at land ports of entry.
The Title establishes a one month pilot for license plate readers for cargo lanes at the top three high-volume land ports of entry. The title authorizes $125 million to carry out the pilot program. In addition, the Title calls for a six-month operational demonstration to deploy high-throughput non-intrusive passenger vehicle inspection system at no fewer than three land ports of entry.
The Title directs the Secretary to produce an implementation plan to establish a biometric exist data system to complete the integrated biometric entry and exit data system required under section 7208 of the Intelligence Reform and Terrorism Prevention Act of 2004. The implementation plan shall include a master schedule and cost estimate, cost-effective staffing and personnel requirements, necessary training programs, effects on departure and arrival wait times, and defined metrics of success and milestones, among other requirements. Within six months, the Secretary shall establish a pilot program to test the biometric exit data system. The Title authorizes $4.25 billion for each fiscal year between 2019 through 2023 to carry out the title, of which $250 million in each year is authorized to be used to implement the biometric exit data system.
Title III: Visa Security and Integrity
Title III addresses visa security by directing the Secretary to assign no fewer than 75 new officers to diplomatic posts for visa screening on a risk-based basis. Visa applications shall be screened against the appropriate criminal, national security and terrorism databases. The Secretary shall establish a Visa Security Advisory Opinion Unit within U.S. Immigration and Customs Enforcement. A new fee is assessed on visa applications to cover any costs associated with visa security programs.
The Title directs the Commissioner of CBP to, within one year, utilize electronic passport screening biometric matching at airports of entry and to the greatest extent practicable to utilize facial recognition technology. There shall be an annual report on visa overstays.
Within 180 days of enactment, the Secretary shall review the social media accounts of certain visa applicants from countries determined high-risk by the Secretary. The Title takes additional steps to detect fraud on visa applications as well as provide the authority to deny applications or interviews for applicants that are determined to be ineligible.
Title IV: Transnational Criminal Organization Illicit Spotter Prevention and Elimination
Title IV criminalizes the illicit spotting and hindering of border and custom controls.
Title V: Border Security Funding
Title V appropriates $23.4 billion to be available within the Procurement, Construction, and Improvements account for U.S. Customs and Border Protection. $16.625 billion shall be for a border wall system along the southern border and $6.775 billion shall be for infrastructure, assets, operations, and technology. Funds are made available each year through 2026. The Secretary is directed to develop a multi-year spending plan and provide quarterly briefings. If such amounts are rescinded or transferred to another account for use beyond this Act, new visas under the merit-based program shall not be provided.
Division B – Immigration Reform
Title I: Lawful Status for Certain Children Arrivals
Title I allows the Secretary to grant contingent non-immigrant status to individuals in the Deferred Action for Childhood Arrivals (DACA) category. This includes an individual who was present prior to June 15, 2007 with continuous presence since, was under the age of 16 at time of entry into the U.S., under the age of 31 on June 15, 2012, enrolled in an educational institute in the U.S. or has acquired a high school diploma or GED, and is not disqualified for criminal convictions.
Applicants shall pay a one-time fee of $1000, which may be paid in installments, and used by the Secretary in advanced appropriations to carry out activities described in Division A. Continent nonimmigrant status shall be provided for 6 years unless revoked and is eligible for additional 6-year terms if the alien remains eligible for continent nonimmigrant status. The Secretary shall grant employment authorization to an alien granted contingent nonimmigrant status as well as grant travel authorization so long as certain criteria are met. Revocation may occur if the alien no longer meets the criteria, the documentation is used for an unlawful or fraudulent purpose, or the individual was absent from the U.S. without authorization.
Title II: Immigrant Visa Allocations and Priorities
Title II eliminates the diversity visa lottery program and reallocates 55,000 visas to a merit-based green card program. The Title eliminates 23,400 F-3 (Married Children of U.S. Citizens) visas to a merit-based green card program and 65,000 F-4 (Siblings of Adult U.S. Citizens) visas to employment-based visa categories. These visas shall be stored in escrow annually for five years.
The new merit-based visa program shall include children of E1, H2, H1B, and L workers who were brought by their parents lawfully into the U.S. as minors and have been continuously in the country for 10 years, and any individual granted a continent nonimmigrant status due to DACA eligibility.
Beginning in the sixth year of the program, the first green cards would be awarded under the new program only if the advanced appropriated funds for border security for that fiscal year have been made available for obligation, have not been transferred or reprogrammed for other non-border security purposes, and have not been rescinded.
The new program will establish a point system through which applicants can garner prioritization based on qualifications such as education level, English language proficiency, military service, and continuous employment. Individuals would earn more points for achieving higher levels of education and the program will establish a threshold number of points that will be required for eligibility. Applicants will have the opportunity under the program to earn the necessary points to meet the threshold in future years.
Each year, the green cards will be awarded by selecting one candidate with the most points in each of the four categories (E, H1B, L, and “contingent nonimmigrant status”). The process will repeat, selecting a candidate from each category, if one is eligible, until all the available green cards for that year are allocated or until no eligible applicants remain. Unused green cards will roll over to the next year and new green cards become available at a rate of 78,400 per year until all the applications are processed and all approved applicants have received green cards. When no eligible applicants remain the 78,400 green cards made available annually for this program will be eliminated and not reallocated.
Without changing the overall number of visas issued, the title eliminates the per-country numerical limitation for employment-based immigrants and increased the per-country numerical limitation for family-based immigrations from 7% to 15% of the total number of family-sponsored visas.
Title III: Unaccompanied Alien Children; Interior Immigration Enforcement
Title III provides equal treatment of all unaccompanied minors apprehended at the border by ensuring the safe and expeditious return to their home country of children from both contiguous and noncontiguous countries, unless the child has a legitimate asylum claim. The Title ensures that accompanied alien minors apprehended at the border must not be separated from their parent or legal guardian while in custody.
Further, Title III ensures that dangerous criminal aliens who are subject to final orders of removal remain in detention until they are physically removed from the U.S. and clarifies ICE’s authority to issue detainers and provides indemnification for law enforcement entities that are sued for complying with DHS detainers.
The Title ensures that alien gang members, alien gang associates, and aliens who participate in gang-related activities can be detained and removed by DHS and clarifies the definition of “conviction” to address aliens who receive post-conviction relief or sentence modifications for the sole purpose of evading immigration consequences.
Finally, the title bars terrorist aliens from entry and receiving immigration benefits.
Title IV: Asylum Reform
Title IV combats asylum fraud by increasing the credible fear standard to require a determination that it is “more probable than not” that the asylum seeker’s statements are true and includes penalties for committing asylum fraud. The Title also repeals the requirement that asylum officers have initial jurisdiction over unaccompanied alien children asylum applications.
Title V: USCIS Waivers
Exempts the U.S. Citizenship and Immigration Services from the Paperwork Reduction Act for three years.
Background
Immigration Background (General)
Four major principles currently underlie U.S. policy on legal permanent immigration: the reunification of families, the admission of immigrants with needed skills, the protection of refugees and asylees, and the diversity of immigrants by country of origin. These principles are embodied in the Immigration and Nationality Act (INA) and are reflected in different components of permanent immigration. Family reunification occurs primarily through family-sponsored immigration. U.S. labor market contribution occurs through employment-based immigration. Humanitarian assistance occurs primarily through the U.S. refugee and asylee programs. Origin-country diversity is addressed through the Diversity Immigrant Visa.
The INA limits worldwide permanent immigration to 675,000 persons annually: 480,000 family-sponsored immigrants, made up of family-sponsored immediate relatives of U.S. citizens ("immediate relatives"), and a set of ordered family-sponsored preference immigrants ("preference immigrants"); 140,000 employment-based immigrants; and 55,000 diversity visa immigrants. This worldwide limit, however, is referred to as a "permeable cap," because certain categories of legal permanent residents (LPRs) are not subject to numerical limitations. These include immediate relatives of U.S. citizens within the INA's family-sponsored immigration provisions, as well as refugees whose number is determined by the President in consultation with Congress. In addition, the number of persons granted asylum is not numerically constrained. Consequently, the number of persons receiving LPR status each year regularly exceeds the INA's statutory worldwide level for permanent immigration. The INA further specifies that countries are held to a numerical limit of 7% of the annual worldwide level of family-sponsored and employment-based immigrants, known as the per-country limit or country cap. The cap is intended to prevent one or just a few countries from dominating immigrant flows. For a full breakdown of current family-sponsored and employment-based preference categories, see Table 1 on page 5 of the linked CRS report.
DACA Background
On September 5, 2017, the Department of Homeland Security (DHS) issued a memorandum announcing its decision to rescind the Deferred Action for Childhood Arrivals initiative (DACA), which the Obama Administration implemented in 2012 to provide temporary relief from removal and work authorization, among other benefits, to certain unlawfully present aliens who arrived in the United States as children. As justification for the rescission, DHS relied upon a letter from Attorney General Sessions concluding that DACA was illegal—specifically, that it lacked "proper statutory authority," was "an unconstitutional exercise of authority by the Executive Branch," and would likely be enjoined in "potentially imminent litigation."
Litigation has ensued at cross purposes. DACA recipients and other parties, including states and universities, filed lawsuits in four federal district courts challenging the rescission as unlawful. Two of those district courts have issued nationwide preliminary injunctions that currently require DHS to continue processing applications for DACA relief from individuals who have obtained DACA relief in the past (renewal applicants), but not applications from individuals who would be first-time DACA enrollees. The order of a third district court—which will go into effect on July 23, 2018, unless DHS provides new reasoning that adequately justifies the rescission in the court's view—would require DHS to process both first-time and renewal applications for DACA relief. After these district court decisions, Texas and six other states filed a separate lawsuit seeking to bar DHS from continuing to grant DACA relief. That lawsuit could result in a preliminary injunction that contradicts the preliminary injunctions already in place in the rescission cases. The case is before a federal district judge in Texas who in 2015 barred the Obama Administration from implementing a different deferred action initiative to protect certain unlawfully present aliens with U.S. citizen or lawful permanent resident children.
Removal Background
The Immigration and Nationality Act (INA) establishes a number of avenues by which various categories of aliens can be denied entry or removed from the United States. Formal proceedings are conducted by an immigration judge within DOJ's Executive Office for Immigration Review. Aliens are afforded a number of procedural protections in such proceedings. For example, the alien may be represented by counsel at his own expense, potentially apply for relief from removal (such as asylum), present testimony and evidence on his own behalf, and appeal an adverse decision to the Board of Immigration Appeals, the highest administrative body responsible for interpreting and applying U.S. immigration laws. Additionally, the alien may, as authorized by statute, seek judicial review of a final order of removal in the judicial circuit in which the removal proceedings were completed. Generally, DHS may, but is not required to, detain an alien while formal removal proceedings are pending, and may release the alien on bond or grant conditional parole as a matter of discretion. However, detention is mandatory if the alien is removable on certain criminal or terrorist-related grounds except in limited circumstances.
In response to an influx of unauthorized border crossings, the Administration called for stricter immigration laws and enhanced border security. In addition, the Department of Justice announced a “zero tolerance” policy to criminally prosecute aliens who unlawfully entered the United States at the southern border.
Border Security Background
U.S. Customs and Border Protection secures America’s borders at and between ports of entry by stopping inadmissible people and illicit goods. CBP’s offices of Field Operations, Border Patrol, and Air and Marine Operations represent the largest federal law enforcement agency.
The primary piece of legislation mandating a fence along the U.S.-Mexico border is Section 102(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). This law required the federal government to construct a minimum of 700 miles of reinforced fencing along the southern border. In 2006, Congress amended the IIRIRA with the Secure Fence Act, which specified that the fence must consist of “at least 2 layers.” A third revision came in 2008 with the Consolidated Appropriations Act, which removed the two-layer fence mandate stipulated by the Secure Fence Act. According to the Congressional Research Service, there are approximately 352.8 miles or primary or pedestrian fencing, 36 miles of secondary fencing, and 299.8 miles of vehicle barrier fencing.
Cost
A Congressional Budget Office cost estimate is not available.
