Rep. Bob Goodlatte (R-Virginia) introduced the Securing America’s Future (SAF) Act (H.R. 4760) in the U.S. House of Representatives on January 10, 2018 with five original Republican co-sponsors. The bill would dramatically change America’s immigration system, reducing legal immigration to the United States by up to 25 to 40 percent, criminalizing illegal presence in the U.S., providing $38 billion in border security funding, increasing interior immigration enforcement, revising the agricultural guest worker program, and mandating E-verify for all employers, among other concerning provisions. The bill would also provide a temporary, three-year renewable status with strict eligibility requirements for some Dreamers. This document provides a comprehensive summary and analysis of the bill’s provisions.
- DIVISION A – Legal Immigration Reform
- DIVISION B – Interior Immigration Enforcement
- DIVISION C – Border Enforcement
- TITLE I – Border Security
- TITLE II – Emergency Port of Entry Personnel and Infrastructure Funding
- TITLE III – Visa Security and Integrity
- TITLE IV – Transnational Criminal Organization Illicit Spotter Prevention and Elimination
- TITLE V – Border Security Enforcement Fund
- DIVISION D – Lawful Status for Certain Childhood Arrivals
DIVISION A – Legal Immigration Reform
TITLE III – Visa Security
Provides Additional Scrutiny for Obtaining Visas. These provisions amend the Immigration and Nationality Act (INA) to automatically cancel all visas held by an immigrant who overstays any such visa and permit the federal government to share certain information from its visa records with foreign governments. They also allow the State Department to deny visa applications without an in-person interview, providing no opportunity for the applicant to make his or her case for approval. (Sections 3101, 3102, and 3104).
Increases DHS Authority on Visa Matters. The INA currently permits the Secretary of State to waive visa interview requirements after a determination that the waiver is “in the national interest of the United States.” These provisions in the bill exclude facilitating travel, reducing visa processing times, and allocating consular resources from being valid reasons for the “national interest” designation and mandate that the State Department consult with DHS before waiving visa interview requirements for national interest purposes. They also allow DHS or the State Department to refuse or revoke any visa to an individual or a class of individuals if it is “necessary or advisable in the security or foreign policy interests of the United States” and mandate that there is no federal judicial review of visa revocations. (Sections 3103 and 3105).
Analysis: These sections provide DHS with a new, more significant role in visa matters, in particular the authority to revoke or refuse any visa to an individual or class of individuals. DHS’s expanding purview on visa matters may come at the expense of the State Department’s authority and increasingly results in making the visa process a law enforcement function.
Adds Additional Obstacles for Visa Applications. These sections require that visa applicants sign all visa applications and provide fully translated copies of any foreign language documents. In addition, immigrant visa applications must be signed in the presence of a consular officer.
These provisions also direct DHS to submit a plan for the use of advanced analytics software to detect fraud in immigration benefits applications, allows the DHS secretary and the secretary of state to require DNA testing to establish family relationship for certain visa applications, and permits the State Department to use fees from visa programs for anti-fraud purposes. It also eliminates a requirement that all visa applications must provide a signed photograph.
Finally, Section 3107 makes the spouse, son or daughter of a “drug trafficker” ineligible for a visa and expands National Crime Information Center (NCIC) background checks for a subset of diplomatic visas. (Sections 3106 to 3112).
DIVISION B – Interior Immigration Enforcement
TITLE I – Legal Workforce Act
The Legal Workforce Act creates a new Employment Eligibility Verification System (EEVS) to replace the existing E-Verify pilot program and requires all employers to use an employment eligibility verification process to check the work eligibility of all new candidates for employment and some previously hired employees.
- Requires Mandatory Employment Verification.(Section 1102)
- Requires employers to check work eligibility when hiring and recruiting new employees and to check already hired workers if they are government employees (federal, state, or local), government contractors (federal or state), workers at critical infrastructure sites, or employees with Social Security Numbers (SSNs) that indicate unusual multiple use.
- Sets out the documentation that can be used to confirm work authorization and identification.
- Establishes the EEVS confirmation process, requiring the employer to keep appropriate records once confirmation of a worker’s identity and work authorization is received.
- Employers must retain specified records for current employees for three years from verification, or, for former employees, one year from the date that an employee has been terminated.
- Employers may not terminate or rescind offers of employment to workers receiving tentative nonconfirmations until those nonconfirmations are deemed to be final. When an employee undergoing verification under EEVS receives a tentative nonconfirmation, the nonconfirmation may be contested under a secondary verification process. Tentative nonconfirmations are deemed to be final if the employer declines to contest them or if the secondary process confirms the nonconfirmation.
- If there has been a final nonconfirmation of identity and/or work authorization, the employer may terminate the employees or rescind offers of employment. Retention of such employees may expose the employer to fines and criminal penalties. If the employer determines it does not want to terminate the employee, it shall notify DHS and face a rebuttable presumption that is in in violation of the Act.
- Phases-in from the date of enactment when employers need to implement EEVS:
- 6 months for 10,000 employees;
- 12 months for 500 to 9,999 employees;
- 18 months for 20 to 499 employees;
- 24 months for 1 to 19 employees;
- 24 months regardless of number of employees for agricultural employers.
- Creates New Employment Eligibility Verification System. Section 1103 requires the DHS Secretary to create a new Employment Eligibility Verification System (EEVS) to facilitate the verification process. EEVS is based on and replaces the existing E-Verify pilot program (which is repealed by section 1107). The system must include a secondary verification process for tentative nonconfirmations that have been contested and must yield a final determination within 10 working days (with one 10-wokring day extension, when needed). Also, it provides individuals receiving wrongful final nonconfirmation with a cause of action against the federal government under the Federal Tort Claims Act, but bars class actions for those claims.
- Protects Employers Using EEVS. Section 1105 allows employers using EEVS in good faith to use their participation as a defense against charges that they have hired an individual not authorized to work.
- Preempts States’ Electronic Employment Verification Laws. Section 1106 permits states to enforce the provisions in this act related to electronic employment verification laws as long as they do so consistent with the federal structure of the program.
- Consequences and Penalties. Section 1108 sets out penalties for employers violating EEVS, significantly increasing fines from the existing levels set in the E-Verify pilot program and establishing a criminal sentence of up to 18 months for a pattern or practice of violations. DHS is permitted to exclude repeated offenders or those convicted of a crime relating to EEVS from receiving government contracts.
- Establishes Fraud Prevention Programs. Section 1111 establishes fraud prevention programs, requiring DHS to establish programs that could allow DHS to suspend suspicious SSNs that have been used multiple times in a suspicious manner, victims of fraud to suspend their SSNs, and parents of minor children to limit the use of their children’s SSN under EEVS.
Analysis: Moving to mandatory EEVS would pose significant burdens on both employers and employees.
Unless employer demand is met by the Securing America’s Future Act’s accompanying guest worker and visa reform provisions, industries that have a shortage of legal workers, such as agriculture and construction, likely will face even more severe worker shortages once EEVS is implemented.
In addition, moving to mandatory EEVS imposes unfunded mandates on employers, who would need to devote time and resources to verification. While this cost might be marginal for some employers, particularly larger employers with fully-staffed human resources departments, it is likely to lead to hardship for smaller employers, including individuals hiring household employees. Also, the nonconfirmation process likely will be a hardship for smaller employers who need to hire quickly but are unable to due to waiting period associated with the nonconfirmation process.
As pilot E-Verify demonstrated, a small percent, but significant number of individuals, receive false nonconfirmations and are prevented from working due to governmental error. Currently only less than 800,000 employers are enrolled in E-Verify, a tiny fraction of nearly 18 million businesses in the U.S.
If a mandatory electronic employment verification system is implemented nationwide, the number of individuals receiving false nonconfirmations will grow to hundreds of thousands. While those individuals are only a fraction of the workforce, they face significant hardships. Barred from working through no fault of their own, they are unable to earn a living or support their families, at least until they can clear up these errors. While the Legal Workforce Act permits them to sue under the Federal Tort Claims Act, individuals with smaller claims will have trouble finding representation, given the bill’s prohibition on class action lawsuits.
TITLE IV – Asylum Reform
Clarifies that the Federal Government Cannot Provide Taxpayer-Funded Counsel. This provision would prohibit federal authorities from providing taxpayer-funded counsel to individuals in removal proceedings. While the federal government usually does not pay for counsel for asylum seekers, federal law currently permits the provision of counsel. The provision would strip HHS and DOJ of their responsibility to help certain asylum seekers, including children, obtain legal representation.
Analysis: A number of studies have demonstrated that providing counsel to immigrants in removal proceedings leads to time and cost efficiencies. The provision of counsel actually pays for itself, saving the government money that would be otherwise spent on detention and deportation of noncitizens. This provision would prevent these savings from occurring.
Moreover, since being represented by counsel plays a crucial role in ensuring a fair result in immigration court, the provision undermines due process and would have a devastating impact on vulnerable individuals, including on children, disabled persons and other vulnerable individuals who may be eligible for assistance. A recently-published report found that while nearly half of asylum seekers with legal representation are successful, only one out of every ten applicants without a counsel win their case. Legal counsel also ensures the asylum seekers appear in immigration court or attend scheduled check-ins with Immigration and Customs Enforcement (ICE). Since fiscal year (FY) 2005, 92.5 percent of children who had an immigration attorney appeared for immigration court proceedings. (Section 4401).
Heightens “Credible Fear” Standard. This provision would heighten the existing “credible fear” standard that determines applicants’ eligibility to continue the process of seeking asylum. Besides the applicant’s statements, asylum officers would be required to consider other facts that the individual is eligible for asylum. Also, this provision would require asylum seekers to prove to an asylum officer that “it is more probable than not” that their statements are true.
Analysis: Currently, asylum seekers need to establish that they have a credible fear of persecution and that they have a “significant possibility of establishing eligibility for asylum” and that their statements. Asylum officers refer to immigration court proceedings only individuals found to have “credible fear” of persecution or torture or of returning to their home countries, or those who state they are seeking asylum. An immigration judge then decides their eligibility for the protection.
Changing these standards could result in asylum officers rejecting valid asylum claims and returning people to countries where they face persecution, without affording those individuals access to an immigration judge to make their cases. Potential inconsistencies and discrepancies that may not be relevant to their claims, could undermine bona fide claims of asylum for some individuals. Unaccompanied children (UACs) would be particularly at risk, as most of them leave their homes suddenly without any documents or preparation and many are too young to explain their situations accurately and fully. (Section 4402)
Expedited Removal and Credible Fear Interviews Conducted and Recorded in Uniform Manner. This provision would direct DHS Secretary to establish procedures ensuring that all immigration agents ask the asylum interview questions in a uniform manner and that both these questions and the answers are recorded also in a uniform fashion.
Analysis: Requiring that asylum interview questions follow a uniform script threatens to undermine the integrity of the interview, as all the asylum officers would be required to always ask the same questions in the same way. This might prevent asylum officers from conducting effective interviews that allow them to engage the asylum seeker and ask relevant questions on case-by-case basis. (Section 4403).
Designating “Safe Third Countries” without Bilateral Agreements. This provision would allow the DHS Secretary to designate any country as a “safe third country” without a bilateral agreement.
Analysis: When a safe third country agreement is in place, such as the one between the U.S. and Canada, refugee applicants and asylum seekers are required to seek refugee protection in the first safe country they enter, in accordance with international law. The existence of a safe third country” agreement allows governments who are parties to the agreement to refuse asylum claims from applicants who previously entered the partnering country. This provision would permit the United States to unilaterally designate another country as a safe third country and then start sending back asylum seekers to that country without first securing a bilateral agreement. It includes no criteria for the necessary conditions needed to before a safe third country designation is made and provides no role for the State Department to take part in the designation, even where a unilateral designation could undermine existing bilateral relationships and U.S. foreign policy goals.
Under this provision if the U.S. unilaterally designated Mexico as a safe third country, it could turn away asylum seekers from Central American countries such as El Salvador, Guatemala and Honduras because they travelled through Mexico. Mexican authorities routinely deport foreigners to their home countries regardless of whether they fear return due to violence and persecution. Despite Mexico having recorded its highest murder rate ever in 2017 and not currently meeting UNHCR’s “safe country” standards because it continues to be dangerous for refugees, asylees and other immigrants, who often face “risks of kidnapping, disappearance, sexual assault, and trafficking,” section 4404 would nevertheless permit the U.S. to unilaterally designate Mexico (and other countries) a safe third country. (Section 4404).
Termination of Asylum Status of Those Who Return Home. This section would allow immigration authorities to terminate asylum of individuals who return to their home countries without a “compelling reason”, or in the case of asylees without nationality, return to the country where they last resided. If the alien has a “compelling reason” for the return, DHS may waive the termination of her or her asylum status. Such waiver would have to be sought prior to the asylees’ departure.
Analysis: This section would impact many asylees who temporarily return to their country of origin to visit sick family members, attend funerals of parents or grandparents or otherwise decide to risk a brief visit for an important life event. While some of these reasons may amount to a “compelling reason,” the absence of specific criteria and the need for advance approval is likely to make it difficult to asylees to get approval in time to travel in emergency situations. The fact that an asylee may be willing to temporarily return despite the threats associated with the return does not mean that those threats no longer exist. Moreover, spouses and children of asylees, who are granted asylum as dependents, would also be a subject to the termination as a result of a brief visit. (Section 4405).
Penalties for Frivolous Asylum Application and Removal of Oral Warning Requirement. This provision would prohibit individuals found to have filed a frivolous application for asylum from ever obtaining any benefits under the INA. Any application that contains a knowingly false statement as to a material fact would be considered fraudulent under this provision. Under Section 4406, an application is considered to be frivolous if the immigration authorities find (1) its substance “so insufficient…that it is clear that the applicant knowingly filed the application solely or in part to delay removal from the United States, to seek employment authorization as an applicant for asylum pursuant to regulations issued pursuant to paragraph or to seek issuance of a Notice to Appeal in order to pursue Cancellation of Removal,” or (2) any of its material elements to be deliberately fabricated.
At the same time, the provision would eliminate any requirement for an oral warning about the consequences of filing a frivolous application and instead would require immigration authorities to include only a written mention of these consequences on the application itself.
Analysis: Under the current immigration law, an individual who files a fraudulent asylum application becomes ineligible for any benefits under the INA, including grants of asylum and visas for their lifetime. Due to the severity of those consequences, immigration judges are required to orally advise asylum seekers about the consequences. Moreover, the asylum application form currently contains a notice about consequences of fraud. However, many of the applicants cannot read the notice due to a lack of English proficiency.
While this provision seeks to minimize fraud, removing the oral warning requirement and keeping only a written warning in English will result in less notice to asylum seekers and lead many of them to not fully appreciating the consequences of filing a “frivolous” application or what constitutes a “frivolous” application. (Section 4406).
Penalties for Immigration and Asylum Fraud. These provisions create new criminal penalties for immigration fraud and requires immigration authorities to prepare reports and other materials investigating asylum cases for potential fraud. Criminal penalties apply for “any materially false, fictitious, or fraudulent statement or representation” the knowing use of any documents containing false statements, even if the falsehood is immaterial or irrelevant.
Analysis: It is already against the law to make false statements in an asylum application. While most asylum claims are denied, the bulk of those rejected are because the applicant is unable to meet the legal criteria for asylum not due to knowingly false or fraudulent statements. (Sections 4407, 4408 and 4409)
TITLE V – Unaccompanied and Accompanied Alien Minors Apprehended Along the Border
Repatriation of Unaccompanied Children. This provision would amend the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA), allowing fast-track screening of all immigrant children, not just children from Mexico and Canada, who cross the border without a parent or guardian
Analysis: Under the current TVPRA, the State Department must ensure that UACs who are not eligible to stay in the U.S. are safely repatriated into their country of origin. The U.S. currently has agreements with our neighboring countries – Mexico and Canada – that guarantee the children are returned under safe conditions. The TVPRA also requires that asylum officers transfer unaccompanied children from countries other than Mexico and Canada to the care and custody of HHS and place them in formal removal proceedings. Currently, children from Canada and Mexico are to be screened within 48 hours of apprehension to determine whether they should be sent home.
Removing the requirement to place UACs in formal removal proceeding would result in significant numbers of UACs being unable to make effective asylum claims because children need more than a few hours to be in a position to make an asylum claim. These changes would make them eligible for expedited deportation and more vulnerable to violence and trafficking in their home countries. (Section 5501).
Narrows Eligibility for Special Immigrant Juvenile Status (SIJS). This provision would amend the TVPRA by narrowing the eligibility criteria for SIJS. Currently, an undocumented child is eligiblefor SIJS if reunification with one or both parents is not possible due to abuse, neglect or abandonment. Under this provision, children who are able to reunify with one parent would no longer be eligible for SIJS.
Analysis: Modifying the criteria establishing eligibility for SIJS making children eligible only if they were abused, neglected or abandoned by both parents would put many children in danger of violence and further abuse. For example, an unauthorized immigrant child who was abused by one parent living outside of the U.S. and has another non-abusive parent in the U.S. would not be eligible for SIJS status and potentially would be deported and returned to the abusive parent. (Section 5502).
Removes Initial Jurisdiction over UAC Asylum Applications from USCIS Asylum Office. This provision would eliminate the section of the INA that places unaccompanied children’s asylum applications under the initial jurisdiction of the USCIS Asylum Office.
Analysis: This section would direct immigration authorities to require UACs to appear at an immigration court and have their case heard there rather than sharing their experience in a less adversarial and more private and informal setting before USCIS officers specializing in asylum. This section would require the kids to be questioned by a trained government attorney in front of an immigration judge under significant time restrictions. In such an unfamiliar and imposing environment, children may be reluctant or even unable to share all details of their past necessary for success of their asylum claims. As a result, these children they may be deported to their home countries, where they face significant threats. (Section 5503)
Reporting on UACs. These provisions would require the Attorney General and DHS Secretary to regularly submit two quarterly and biannual reports on UACs to Congress. The quarterly reports would contain total number of asylum cases filed by unaccompanied children during the preceding quarter and information about percentage of those that were granted. The Attorney General would also have to include data on the number of UACs who didn’t appear at their scheduled court hearings. The biannual report would report on crimes committed by UACs after leaving DHS custody. It would report on each crime that an unaccompanied child has been charged or convicted of during the first 6 months after release from custody of DHS. (Section 5504 and 5505)
Increases Number of Children in Immigration Detention. This provision would amend the TVPRA to remove protections for migrant children who cross the border with an adult. The change would give DHS broad discretion to detain and remove children quickly. Section 5506 also requires that after detention these children cannot be released to anyone other than a parent or legal guardian.
Analysis: Immigration authorities currently must follow the settlement agreement in Flores v. Reno which requires that children must be released from immigration detention without unnecessary delay to a parent, guardian, or certain other relatives and adults. Under Flores if a child must be detained then it must be in the least restrictive environment. This provision would instead require the children to go through regular proceedings that apply to adults, including expedited removal and mandatory detention. This approach is likely to have a long-lasting negative impact on the children’s physical and mental health and development. (Section 5506).
DIVISION C – Border Enforcement
TITLE I – Border Security
SUBTITLE A – Infrastructure and Equipment
Physical Barriers and Technology along the Southern Border. This section requires the Secretary of the Department of Homeland Security (DHS) “to design, test, construct, install, deploy and operate” physical barriers, tactical infrastructure, and technology along the southern border to achieve situational awareness and operational control of the border by September 30, 2022.
The term “physical barriers” includes fencing, a border wall system and levee walls. This provision prohibits the deployment of physical barriers and tactical infrastructure in areas along the border where the DHS secretary determines natural terrain features or the remoteness of such area would make any such deployment ineffective. (Section 1111).
Analysis: The U.S. has built border fencing along 654 miles of the southern border. The cost of building a wall along all 2,000 miles of the southern border is expected to range from $21.6 billion to $31.2 billion, not including the cost of maintaining the wall and other physical barriers over the years. Congress should provide funding to build a fence in the southern border only where it is the most appropriate solution and prioritize the use of modern technology to build a virtual fence in areas on the southern border where building a physical barrier is not practical.
Air and Marine Operations Flight Hours. This provision directs the DHS secretary to increase the annual flight hours of U.S. Customs and Border Protection (CBP)’s Air and Marine Operations to at least 95,000 flight hours per year and requires the unmanned aerial systems to operate at least 24 hours per day for five days a week. (Section 1112).
U.S. Border Patrol Activities and Additional Capabilities. These sections require the chief of the Border Patrol to direct agents of the Border Patrol to position themselves as close to the border as possible. The bill also deploys specific infrastructure and/or technology capabilities to each sector or region of the southern and northern borders. (Sections 1113 and 1114).
Analysis: Requiring agents to situate themselves as close to the border as possible may reduce reliance on Border Patrol checkpoints located many miles from the border. Some members of Congress oppose the current placement of these checkpoints as ineffective. They argue that more resources should be put as close to the border as possible, not miles into the U.S.
Border Security Technology Program Management. This provision directs the DHS secretary to document the approved baseline, cost, schedule and performance thresholds of major border security technology acquisitions programs that have a life-cycle cost of $300 million or more. (Section 1115).
Use of the National Guard along the Southern Border. This provision permits the state governors, with the approval of the DHS and Defense secretaries, to order units of the National Guard to assist CBP in securing the border. The responsibilities of the National Guard would include constructing reinforced fencing or other barriers along the border, constructing checkpoints and conducting surveillance, among other activities. The bill directs the Department of Defense (DoD) to reimburse up to $35 million a year to border states for the cost of deploying National Guard units to secure the southern border. (Section 1116)
Analysis: Deploying National Guard units to the border is a questionable use of resources because border crossings have dipped to near-record low levels. From 2000 to 2017, apprehensions of undocumented immigrants crossing the border declined from 1.7 million to about 310,000 each year. At the same time, the number of Border Patrol agents nearly doubled between FY 2002 and FY 2017 (increasing from 10,045 to 19,437). There are thousands of Border Patrol agents who are able to perform many of the duties assigned to the National Guard’s responsibilities under this provision, while reserving National Guard units for national emergencies.
The Department of Defense recently authorized up to 4,000 National Guard troops to be sent to the southern border after President Trump signed a presidential memorandum on April 4, 2018 calling for their deployment. The deployment is expected to cost the government $220 million to $252 million through the end of 2018.
Access to Public Lands. This provision prohibits impeding, prohibiting or restricting CBP activities on federal lands to prevent unlawful entries into the U.S. and waives certain laws to permit the construction of physical barriers (such as fencing, a border wall system and levee walls), tactical infrastructure and border technology described in Section 1111 in public lands. (Section 1117).
National Border Security Advisory Committee. This provision establishes a National Border Security Advisory Committee to consult with and make recommendations to the DHS secretary on border security matters. The committee must include at least one member from each state who has five years of practical experience in border security operations and lives and works within 80 miles from the southern or northern border. (Section 1118).
Eradicate Carrizo Cane and Salt Cedar along the Rio Grande. This provision directs the DHS Secretary to begin removing the carrizo cane and salt cedar plants along the Rio Grande before September 30, 2022. (Section 1119).
Analysis: Eradicating invasive and nonnative carrizo cane and salt cedar plants along the Rio Grande River in Texas would provide the Border Patrol with greater visibility and access to the river. These plants, which cover between 30,000 and 60,000 acres, would be removed from the riverbanks. This is an effective policy that improves border management in areas where building a fence or other physical barriers is not practical.
Southwest Border Threat Analysis. These sections require the DHS Secretary to develop a threat analysis that assesses current and potential terrorism and criminal threats posed by individuals seeking to unlawfully enter the U.S. through the southern border and assesses improvements needed at and between ports of entry to secure the border. Section 1120 also requires the Border Patrol to submit a report that, along with other information, includes staffing requirements for all departmental border security functions, assessment of training programs (including use of force and identifying vulnerable populations) and an assessment of how border security operations affect border crossing times. In addition, Section 1121 includes a series of technical amendments to CBP authorizations. (Sections 1120 and 1121).
Agent and Officer Technology Use. This provision directs that technology deployed along the border be provided to the greatest extent practicable to front-line DHS agents and officers. (Section 1122).
Integrated Border Enforcement Teams. This provision establishes the Integrated Border Enforcement Team (IBET) program to work with Canada “to detect, prevent, investigate, and respond to terrorism and violations of law” along the northern border. IBET would be led by the Border Patrol and may be comprised of personnel from other subcomponents of CBP, ICE, the Coast Guard, other DHS personnel, and appropriate foreign, state, local and/or tribal law enforcement agencies. (Section 1223).
Identify Cross-Border Tunnels and Pilot Program on Use of Electromagnetic Spectrum. These sections authorize the DHS secretary to establish Tunnel Task Forces to detect and remediate cross-border tunnels. In addition, Section 1225 directs the CBP Commissioner to conduct a pilot program to test the use of electromagnetic spectrum to identify threats, such as unauthorized spectrum use and the jamming or hacking of U.S. communications assets. (Sections 1224 and 1225).
Homeland Security Foreign Assistance. This section permits the DHS Secretary, subject to the consent of the Secretary of State, to provide financial and security assistance to a foreign government to increase that government’s capacity to mitigate transnational crime and/or terrorism, irregular migration flows to the U.S. (including any detention or removal operations of the recipient government), and protect and expedite legitimate trade. This assistance may include equipment, training, maintenance, supplies and sustainment support. (Section 1126).
SUBTITLE B – Personnel
Hire an Additional 5,000 Border Patrol Agents and 4,000 Port of Entry Officers. These sections require the CBP commissioner to hire an additional 5,000 Border Patrol agents, increasing the Border Patrol’s required active duty presence to 26,370 agents. They also require CBP to maintain an active duty presence of at least 27,725 OFO officers at ports of entry, which is about 4,000 additional OFO officers from today’s required active duty presence of 23,375 OFO officers.
In addition, these sections require the CBP commissioner to maintain an active duty presence of at least 1,675 Air and Marine Operations agents by September 30, 2022. They also require the CBP commissioner to increase the number of K-9 and horseback units, search trauma and rescue teams (by at least 50 officers), officers engaged in tunnel detection and technology program, agricultural specialists, Office of Professional Responsibility special agents (to maintain an active duty presence of at least 550 special agents), and Office of Intelligence personnel.
Section 1132 provides hiring and retention incentives for CBP employees assigned to remote or hard-to-fill locations. (Sections 1131 and 1132).
Analysis: Congress must carefully examine whether spending money to hire and station more Border Patrol agents is the most effective investment to secure our borders. The number of Border Patrol agents nearly doubled between FY 2002 and FY 2017 (increasing from 10,045 to 19,437) and the Border Patrol’s budget increased from about $1 billion in FY 2000 to almost $3.8 billion in FY 2017, representing an increase of about 380 percent. Meanwhile, the average annual number of apprehensions for each Border Patrol agent dropped from 182 in FY 2000 to just fewer than 16 in FY 2017 or, on average, fewer than 2 apprehensions per month
Adding officers at ports of entry will help our economy. Through FY 2014, CBP OFO identified an overall shortage of 3,811 OFO officers to effectively manage ports of entry. CBP OFO had 1,404 unfilled officer positions in June 2017 and needs additional officers on top of today’s required active duty presence to effectively operate ports of entry. The magnitude of the shortage is amplified by the fact that adding a single CBP OFO officer to a port of entry would result in annual benefits of a $2 million increase in our country’s Gross Domestic Product (GDO), $640,000 saved in opportunity costs, and 33 jobs added to the economy.
Polygraph Waiver for Certain CBP Personnel. This section adds the Anti-Border Corruption Reauthorization Act to the bill. This permits the CBP commissioner to waive the polygraph requirement for certain federal, state or local law enforcement officers and for members of the armed forces or veterans, if they meet certain requirements when applying for a position at CBP, including the Border Patrol. (Section 1333).
Training for CBP Agents and Officers. This provision directs the CBP commissioner to ensure that every Border Patrol agent and OFO officer receives a minimum of 21 weeks of training before the initial assignment of such agents and officers. It also directs the CBP commissioner to require all agents and officers to undergo at least eight hours of continuing education annually “to maintain and update understanding of federal legal rulings, court decisions, and department policies, procedures and guidelines.” (Section 1334).
SUBTITLE C – Grants
Operation Stonegarden. This section authorizes $110 million through the Operation Stonegarden program for each fiscal year from 2018 to 2022. The funding is aimed at increasing collaboration between CBP and state and local law enforcement entities and supporting border security operations. (Section 1141).
Analysis: Operation Stonegarden is a program administered by the Federal Emergency Management Agency (FEMA), a component of DHS, to provide funding to state, local and tribal law enforcement agencies to enhance their ability to “jointly secure U.S. borders and territories.” Previous reports on Operation Stonegarden indicate that not all funds are used for enhancing border security, instead being diverted toward employee overtime or for other events and activities not related to border security. The lack of a clear mission for the program has historically contributed to the misuse of taxpayer funds.
TITLE II – Emergency Port of Entry Personnel and Infrastructure Funding
Port of Entry Infrastructure. This provision authorizes the DHS Secretary to construct new ports of entry along the southern and northern borders. Section 2101 also requires the DHS Secretary to “expand or modernize” high-priority ports of entry on the southern border by September 30, 2021. (Section 2101).
Analysis: Investing in infrastructure at our ports of entry is important to keep pace with increasing demand and security requirements. Trade at the border generates hundreds of thousands of jobs for Americans – in fact, nearly six million American jobs depend directly on trade with Mexico. Yet, wait times to cross the border are often long, regularly reaching up to an hour or more, slowing commerce and leading to billions of dollars in losses as goods spoil and opportunity costs mount.
Secure Communications. This section requires DHS to provide CBP and Immigration and Customs Enforcement (ICE) agents and/or officers with secure communications equipment that, among other things, allows communication between ports of entry and inspection stations, and with other federal, state, tribal and local law enforcement entities. (Section 2102).
Expand Surveillance and Inspection Activities at Ports of Entry. These provisions require the DHS Secretary to “fully implement” the Border Security Deployment Program (BSDP), which aims to increase situational awareness at land ports of entry along the southern and northern border, and expand the program’s integrated surveillance and intrusion detection system. They authorize $33 million for fiscal year 2018 for this effort.
These provisions also direct CBP to upgrade all existing license plate readers on the nation’s borders within one year of the bill’s enactment and establish a six-month operational demonstration to deploy a high-throughput (a screening system which generally leverages automation to assay a large number of items), non-intrusive passenger vehicle inspection system in at least three land of ports of entry. In addition, these sections express a sense of congress that CBP must address any shortage of certified personnel at ports of entry by seeking cooperation with other agencies and departments of the U.S. government, including in the form of a memorandum of understanding, to borrow personnel from those agencies to conduct inspections. (Sections 2103, 2104, 2105 and 2107).
Implement a Biometric Exit Data System. This section directs the DHS Secretary to submit an implementation plan within 180 days of the bill’s enactment to establish a biometric exit data system. The plan must include a master schedule and cost estimate, as well as input from private sector stakeholders. Within six months of Section 2106’s enactment, the DHS Secretary must set up a six-month biometric exit pilot program on non-pedestrian outbound traffic in at least three land ports of entry. Within two years of the bill’s enactment, CBP must establish a biometric exit system at the 15 airports, 10 sea ports and 15 land ports that support the highest volume of crossings. Not later than five years after the bill’s enactment, CBP must expand the biometric exit system to all land ports of entry non-pedestrian outbound traffic. (Section 2106).
Analysis: While the government now collects biometric data on individuals entering the U.S., DHS has yet to implement a biometric exit system, which has been mandated by federal law since the 1990s. Implementing a biometric entry-exit system at ports of entry represents a logistical challenge that potentially requires billions of dollars in infrastructure changes and unprecedented cooperation from private sectors actors, including airlines and airports.
TITLE III – Visa Security and Integrity
Visa Security Units at High-Risk Posts. This provision directs the DHS Secretary to perform the following tasks: assign DHS employees to at least 75 high-risk diplomatic and consular posts at which visas are issued, increase training for CBP and ICE employees placed at international posts, and screen visa applicants against criminal, national security, and terrorism databases. The provision also establishes a Visa Security Advisory Opinion Unit within ICE to respond to requests from the Secretary of State to conduct a visa security review using information maintained by DHS, including terrorism association, criminal history, “and other relevant factors, as determined by the [DHS] Secretary.” (Section 3101).
Electronic Passport Screening and Biometric Matching. This section requires CBP to screen electronic passports at international airports by reading each electronic passport’s embedded chip and, to the greatest extent practicable, utilize facial recognition technology at international airports to inspect Visa Waiver Program visitors. (Section 3102).
Reporting of Visa Overstays. This section enhances current reporting requirements for DHS’s annual report to Congress on the number of visa overstays for the preceding fiscal year. The report would include the total number of people who overstayed a visa within each class of nonimmigrant visas, from each country, who arrived by a land port of entry, who entered the U.S. using a border crossing identification card, and/or who are Canadian nationals who entered the U.S. without a visa but whose authorized period of stay terminated. (Section 3103).
Analysis: Currently, about 42 percent of the undocumented population in the U.S. overstayed a visa. DHS issues a report on visa overstays every year, but as recently as May 22, 2017 DHS did not track the number of people who overstayed a visa after entering the U.S. at a land port of entry, because the collection of departure information in land ports of entry is challenging to determine. It is also unclear whether the report would provide an accurate picture of visa overstays who will remain in the U.S. in the long-term, because some visitors who overstays their visa do so for a short period of time, even less than 24 hours, before returning home. Approximately 27 percent of individuals who overstayed a visa in 2016 had returned home by January 2017.
Student and Exchange Visitor Information Verification. This section directs the DHS Secretary to provide access to information collected under the Student and Exchange Visitor Information System (SEVIS) to CBP OFO officers who are conducting primary inspections of individuals at ports of entry for the purpose to stop associates of “known terror suspects” from entering the U.S. (Section 3104).
Social Media Review of Visa Applicants. This provision requires DHS “to the greatest extent practicable, and in a risk based manner and on an individualized basis” to review the social media accounts of certain visa applicants who are citizens of or reside in “high-risk countries” as determined by the DHS Secretary. Section 3105 also requires DHS to review in a risk-based manner open source information about visa applicants. Open source information is generally derived from newspapers, journals, the internet and other publically available sources. (Section 3105).
Analysis: The Trump administration announced on March 30 that it would ask nearly all visa applicants for a visa to enter the U.S. – about 14.7 million people – to submit their social media user names for the past five years. The proposal was set for a 60-day public comment on the Federal Register, which ended on May 29, 2018.
Review of social media accounts and open source information of all visa applicants may pose significant logistical and resource problems. The time and personnel needed to conduct thorough searches could be significant and may not be feasible. Also, no research exists showing that such searches will significantly impact public safety and national security.
At the same time, social media and open source screening sends a troubling message to foreign workers and visitors, discouraging talented workers from seeking employment in the U.S. and potentially discouraging tourism, negatively impacting our economy. In addition, requiring visa applicants to submit their social media information in in tension with First Amendment freedom of speech and association.
TITLE IV – Transnational Criminal Organization Illicit Spotter Prevention and Elimination
Criminal Penalties for Certain Immigration Violations along the Border. This section increases criminal penalties for a number of immigration violations along the border and expands the scope of people who may be subject to those penalties.
This section amends 8 U.S.C. 1324 (a) and 8 U.S.C. 1327 to add new criminal penalties for a person who “conspires to” bring an undocumented immigrant into the United States and who “attempts to aid or assist” an undocumented immigrant to enter the U.S. Violations under these sections may carry sentences of up to 15 years.
In the case of a person who commits an offense under 8 U.S.C. 1324 (a) or 8 U.S.C. 1327, Section 4102 permits the person’s sentence to be increased by up to ten years if that person used, carried or possessed a firearm while committing such offense.
This section also makes damage to a fence, barrier, sensor, camera, or other physical or electronic device deployed by the federal government to control the border or a port of entry punishable by imprisonment of up to 15 years and a fine. If the person used, carried or possessed a firearm while committing the offense, he or she may be sentenced to imprisonment for up to 20 years and a fine. (Section 4102).
Analysis: This section expands existing law to provide overly harsh punishment for people who help or try to help an undocumented immigrant come to the U.S. People, including parents who are living in the U.S. without documentation, could face up to fifteen years in jail merely because they planned to bring or attempted to help their family members, including their children, come live in America. By creating this overly harsh penalty, the federal government would incarcerate individuals who might otherwise not have a criminal history and are not serious security threats in federal prison at a significant cost to American taxpayers. In addition, increasing these penalties is unlikely to deter those who are seeking to reunify with their family members or fleeing deadly violence and harm or persecution from coming to the U.S.
TITLE V – Border Security Enforcement Fund
Provides $38 Billion for the Border Security Enforcement Fund. This section directly transfers $38 billion to a newly created Border Security Enforcement Fund to be used primarily during a five-year period (fiscal years 2018 through 2022), but in some cases up to fiscal year 2025. The funding would be allocated in the following manner:
- $18 billion for physical barriers/wall;
- $8.5 billion for hiring and retaining Border Patrol agents and CBP officers;
- $5.8 billion for technology along the border and aviation assets;
- $3 billion for ports of entry construction and modernization;
- $1 billion for tactical infrastructure, such as roads, along the border;
- $1 billion to implement an entry-exit biometric program;
- $250 million for foreign migration assistance to help Central American countries with immigration enforcement; and
- $200 million for the U.S. Coast Guard.
Analysis: Congress must carefully examine whether spending money to build physical barriers along the U.S.-Mexico border or to hire and station more Border Patrol agents is the most effective investment to secure our borders. Building a wall along all 2,000 miles of the southern border is expected to range from $21.6 billion to $31.2 billion, plus the long-term cost of maintaining the wall and other physical barriers over the years. As a a result, Congress should prioritize the use of modern technology to build a virtual fence in areas on the southern border where building a physical barrier is not practical. In addition, as mentioned before, the number of Border Patrol agents nearly doubled between FY 2002 and FY 2017 (increasing from 10,045 to 19,437), while the average annual number of apprehensions for each Border Patrol agent dropped from 182 in FY 2000 to just fewer than 16 in FY 2017 – about one apprehension every three weeks. Spending money to hire and station more Border Patrol agents is unlikely to provide tangible results.
On the other hand, investing in critical infrastructure and personnel at our ports of entry will help grow our economy and strengthen our national security. Investments in ports of entry are important to keep pace with trade at the border and tourism to America, which generate millions of jobs for American workers. They also help keep America safe, because most illicit drug trafficking comes to the U.S. in through our nation’s ports of entry.
DIVISION D – Lawful Status for Certain Childhood Arrivals
“Contingent Nonimmigrant Status” for Certain DACA Recipients. These sections create a three-year, renewable “contingent nonimmigrant status” available only to certain Deferred Action for Childhood Arrivals (DACA) recipients. They do not provide an opportunity for DACA recipients or other Dreamers to obtain permanent legal status in the U.S.
The “contingent nonimmigrant status” would protect some DACA recipients from deportation, allow them to work legally in the U.S. and travel outside the country. However, their travel would be restricted to not more than 15 consecutive days outside the country or 90 days in aggregate during each three-year period.
Excludes Most Dreamers from Protection. To qualify for “contingent nonimmigrant status,” these sections require that applicants possess a valid Employment Authorization Document (EAD) on the date of the bill’s enactment. As a result, hundreds of thousands of Dreamers would not qualify for the bill’s protections, including those who lost their DACA protection after the program was rescinded on September 5, 2017, were too young or too old to apply for DACA, or did not apply because they were fearful of applying and/or could not afford the application fee.
Establishes a Burdensome and Expensive Application Process. These sections provide a one-year application period to apply for “contingent nonimmigrant status,” after which DHS will no longer accept applications. The application process includes an in-person interview with DHS, a standard processing fee to recover the full costs of processing the application, and an additional Border Security Fee of $1,000 to carry out Division C in the bill.
Imposes Strict Eligibility Criteria. These provisions lay out restrictive grounds for eligibility for “contingent nonimmigrant status,” including a provision that prohibits individuals making under 125 percent of the federal poverty level who are 18 years or older and not full-time students from applying. Additional grounds of ineligibility include two or more misdemeanor convictions (excluding minor traffic offenses), failure to comply with requirements of any order of removal or voluntary departure, having been ordered removed in absentia, and delinquency on federal, state or local taxes, among other criteria.
These sections state that admission to the U.S. of a “contingent nonimmigrant” who is traveling abroad is not an admission for the purposes of adjustment of status to lawful permanent resident status. As a result, individuals granted status under these provisions would be unlikely to adjust to permanent legal status after marrying a U.S. citizen if they previously entered the U.S. between ports of entry without authorization.
DACA recipients granted “contingent nonimmigrant status” are ineligible for healthcare subsidies, refundable tax credits and other public benefits. DHS is required to revoke “contingent nonimmigrant status” if an individual no longer meets the eligibility requirements. These sections provide administrative appellate review of a determination of denial for an initial or renewal “contingent nonimmigrant status,” but the appeal must be filed within 30 days.
(Sections 1102, 1103, 1104, 1105 and 1106).
Analysis: These provisions are the subject of ongoing discussions. They may be amended to allow Dreamers who were eligible for DACA but do not have a valid EAD to apply for and obtain “contingent nonimmigrant status,” increase the duration of the status to six years (instead of three), and to clarify that individuals will not be ineligible if they cannot show an income at or above 125 percent of the poverty level.
Even if amended, these provisions fail to provide a permanent solution for all Dreamers that protects them from deportation and allows them to contribute fully to America. By providing a temporary status only to Dreamers who had DACA at the date of the bill’s enactment, at most 680,000 Dreamers would be eligible to apply – instead of the 1.8 million Dreamers in America that President Trump offered to provide U.S. citizenship.
Congress must provide a permanent solution for Dreamers that allows them to stay in the U.S. and earn the opportunity to obtain lawful permanent resident status if they meet certain requirements, such as pursuing higher education, enlisting in the military or showing they are gainfully employed. Such a policy is not only the most humanitarian approach to solving this issue, but it also makes economic sense. Each DACA recipient contributes an estimated $109,000 to the economy each year. If all DACA recipients were deported, America’s annual GDP would fall by nearly $42 billion.