S.1033
Secure America and Orderly Immigration Act (Introduced in Senate)
TITLE III–ESSENTIAL WORKER VISA PROGRAM
SEC. 301. ESSENTIAL WORKERS.
Section 101(a)(15)(H) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)) is amended–
(1) by striking `(H) an alien (i)(b)’ and inserting the following:
`(H) an alien–
`(i)(b)’;
(2) by striking `or (ii)(a)’ and inserting the following:
`(ii)(a)’;
(3) by striking `or (iii)’ and inserting the following:
`(iii)’; and
(4) by adding at the end the following:
`(v)(a) subject to section 218A, having residence in a foreign country, which the alien has no intention of abandoning, who is coming temporarily to the United States to initially perform labor or services (other than those occupation classifications covered under the provisions of clause (i)(b) or (ii)(a) or subparagraph (L), (O), (P), or (R)); or.’.
SEC. 302. ADMISSION OF ESSENTIAL WORKERS.
(a) In General- Chapter 2 of title II of the Immigration and Nationality Act (8 U.S.C. 1181 et seq.) is amended by inserting after section 218 the following:
`ADMISSION OF TEMPORARY H-5A WORKERS
`SEC. 218A. (a) The Secretary of State may grant a temporary visa to a nonimmigrant described in section 101(a)(15)(H)(v)(a) who demonstrates an intent to perform labor or services in the United States (other than those occupational classifications covered under the provisions of clause (i)(b) or (ii)(a) of section 101(a)(15)(H) or subparagraph (L), (O), (P), or (R)) of section 101(a)(15).
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(b) Requirements for Admission- In order to be eligible for nonimmigrant status under section 101(a)(15)(H)(v)(a), an alien shall meet the following requirements:
`(1) ELIGIBILITY TO WORK- The alien shall establish that the alien is capable of performing the labor or services required for an occupation under section 101(a)(15)(H)(v).
`(2) EVIDENCE OF EMPLOYMENT- The alien’s evidence of employment shall be provided through the Employment Eligibility Confirmation System established under section 274E or in accordance with requirements issued by the Secretary of State, in consultation with the Secretary of Homeland Security. In carrying out this paragraph, the Secretary may consider evidence from employers, employer associations, and labor representatives.
`(3) FEE- The alien shall pay a $500 application fee to apply for the visa in addition to the cost of processing and adjudicating such application. Nothing in this paragraph shall be construed to affect consular procedures for charging reciprocal fees.
`(4) MEDICAL EXAMINATION- The alien shall undergo a medical examination (including a determination of immunization status) at the alien’s expense, that conforms to generally accepted standards of medical practice.
`(c) Grounds of Inadmissibility-
`(1) IN GENERAL- In determining an alien’s admissibility as a nonimmigrant under section 101(a)(15)(H)(v)(a)–
`(A) paragraphs (5), (6) (except for subparagraph (E)), (7), (9), and (10)(B) of section 212(a) may be waived for conduct that occurred before the date on which the Secure America and Orderly Immigration Act was introduced;
`(B) the Secretary of Homeland Security may not waive–
`(i) subparagraph (A), (B), (C), (E), (G), (H), or (I) of section 212(a)(2) (relating to criminals);
`(ii) section 212(a)(3) (relating to security and related grounds); or
`(iii) subparagraph (A) or (C) of section 212(a)(10) (relating to polygamists and child abductors);
`(C) for conduct that occurred before the date on which the Secure America and Orderly Immigration Act was introduced, the Secretary of Homeland Security may waive the application of any provision of section 212(a) not listed in subparagraph (B) on behalf of an individual alien for humanitarian purposes, to ensure family unity, or when such waiver is otherwise in the public interest; and
`(D) nothing in this paragraph shall be construed as affecting the authority of the Secretary of Homeland Security to waive the provisions of section 212(a).
`(2) WAIVER FINE- An alien who is granted a waiver under subparagraph (1) shall pay a $1,500 fine upon approval of the alien’s visa application.
`(3) APPLICABILITY OF OTHER PROVISIONS- Sections 240B(d) and 241(a)(5) shall not apply to an alien who initially seeks admission as a nonimmigrant under section 101(a)(15)(H)(v)(a).
`(4) RENEWAL OF AUTHORIZED ADMISSION AND SUBSEQUENT ADMISSIONS- An alien seeking renewal of authorized admission or subsequent admission as a nonimmigrant under section 101(a)(15)(H)(v)(a) shall establish that the alien is not inadmissible under section 212(a).
`(d) Period of Authorized Admission-
`(1) INITIAL PERIOD- The initial period of authorized admission as a nonimmigrant described in section 101(a)(15)(H)(v)(a) shall be 3 years.
`(2) RENEWALS- The alien may seek an extension of the period described in paragraph (1) for 1 additional 3-year period.
`(3) LOSS OF EMPLOYMENT-
`(A) IN GENERAL- Subject to subsection (c), the period of authorized admission of a nonimmigrant alien under section 101(a)(15)(H)(v)(a) shall terminate if the nonimmigrant is unemployed for 45 or more consecutive days.
`(B) RETURN TO FOREIGN RESIDENCE- Any alien whose period of authorized admission terminates under subparagraph (A) shall be required to return to the country of the alien’s nationality or last residence.
`(C) PERIOD OF VISA VALIDITY- Any alien, whose period of authorized admission terminates under subparagraph (A), who returns to the country of the alien’s nationality or last residence under subparagraph (B), may reenter the United States on the basis of the same visa to work for an employer, if the alien has complied with the requirements of subsection (b)(1).
`(4) VISITS OUTSIDE UNITED STATES-
`(A) IN GENERAL- Under regulations established by the Secretary of Homeland Security, a nonimmigrant alien under section 101(a)(15)(H)(v)(a)–
`(i) may travel outside of the United States; and
`(ii) may be readmitted without having to obtain a new visa if the period of authorized admission has not expired.
`(B) EFFECT ON PERIOD OF AUTHORIZED ADMISSION- Time spent outside the United States under subparagraph (A) shall not extend the period of authorized admission in the United States.
`(e) Portability- A nonimmigrant alien described in this section, who was previously issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(v)(a), may accept new employment with a subsequent employer.
`(f) Waiver of Rights Prohibited- A nonimmigrant alien described in section 101(a)(15)(H)(v)(a) may not be required to waive any rights or protections under the Secure America and Orderly Immigration Act .
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(g) Change of Address- An alien having nonimmigrant status described in section 101(a)(15)(H)(v)(a) shall comply by either electronic or paper notification with the change of address reporting requirements under section 265.
`(h) Bar to Future Visas for Violations-
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(1) IN GENERAL- Any alien having the nonimmigrant status described in section 101(a)(15)(H)(v)(a) shall not be eligible to renew such nonimmigrant status if the alien willfully violates any material term or condition of such status.
`(2) WAIVER- The alien may apply for a waiver of the application of subparagraph (A) for technical violations, inadvertent errors, or violations for which the alien was not at fault.
`(i) Collection of Fees- All fees collected under this section shall be deposited in the Treasury in accordance with section 286(w).’.
(b) Conforming Amendment Regarding Presumption of Nonimmigrant Status- Section 214(b) of the Immigration and Nationality Act (8 U.S.C. 1184(b)) is amended by inserting `(H)(v)(a),’ after `(H)(i),’.
(c) Clerical Amendment- The table of contents for the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) is amended by inserting after the item relating to section 218 the following:
`Sec. 218A. Admission of temporary H-5A workers.’.
SEC. 303. EMPLOYER OBLIGATIONS.
Employers employing a nonimmigrant described in section 101(a)(15)(H)(v)(a) of the Immigration and Nationality Act , as added by section 301, shall comply with all applicable Federal, State, and local laws, including–
(1) laws affecting migrant and seasonal agricultural workers; and
(2) the requirements under section 274E of such Act , as added by section 402.
SEC. 304. PROTECTION FOR WORKERS.
Section 218A of the Immigration and Nationality Act , as added by section 302, is amended by adding at the end the following:
`(h) Application of Labor and Other Laws-
`(1) DEFINITIONS- As used in this subsection and in subsections (i) through (k):
`(A) EMPLOY; EMPLOYEE; EMPLOYER- The terms `employ’, `employee’, and `employer’ have the meanings given such terms in section 3 of the Fair Labor Standards Act of 1938 (29 U.S.C. 203).
`(B) FOREIGN LABOR CONTRACTOR- The term `foreign labor contractor’ means any person who for any compensation or other valuable consideration paid or promised to be paid, performs any foreign labor contracting activity.
`(C) FOREIGN LABOR CONTRACTING ACTIVITY- The term `foreign labor contracting activity’ means recruiting, soliciting, hiring, employing, or furnishing, an individual who resides outside of the United States for employment in the United States as a nonimmigrant alien described in section 101(a)(15)(H)(v)(a).
`(2) COVERAGE- Notwithstanding any other provision of law–
`(A) a nonimmigrant alien described in section 101(a)(15)(H)(v)(a) is prohibited from being treated as an independent contractor; and
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(B) no person may treat a nonimmigrant alien described in section 101(a)(15)(H)(v)(a) as an independent contractor.
`(3) APPLICABILITY OF LAWS- A nonimmigrant alien described in section 101(a)(15)(H)(v)(a) shall not be denied any right or any remedy under Federal, State, or local labor or employment law that would be applicable to a United States worker employed in a similar position with the employer because of the alien’s status as a nonimmigrant worker.
`(4) TAX RESPONSIBILITIES- With respect to each employed nonimmigrant alien described in section 101(a)(15)(H)(v)(a), an employer shall comply with all applicable Federal, State, and local tax and revenue laws.
`(5) NONDISCRIMINATION IN EMPLOYMENT- An employer shall provide nonimmigrants issued a visa under this section with the same wages, benefits, and working conditions that are provided by the employer to United States workers similarly employed in the same occupation and the same place of employment.
`(6) NO REPLACEMENT OF STRIKING EMPLOYEES- An employer may not hire a nonimmigrant alien described in section 101(a)(15)(H)(v)(a) as a replacement worker if there is a strike or lockout in the course of a labor dispute in the occupational classification at the place of employment.
(7) WAIVER OF RIGHTS PROHIBITED- A nonimmigrant alien described in section 101(a)(15)(H)(v)(a) may not be required to waive any rights or protections under the Secure America and Orderly Immigration Act . Nothing under this provision shall be construed to affect the interpretation of other laws.
`(8) NO THREATENING OF EMPLOYEES- It shall be a violation of this section for an employer who has filed a petition under section 203(b) to threaten the alien beneficiary of such a petition with withdrawal of the application, or to withdraw such a petition in retaliation for the beneficiary’s exercise of a right protected by the Secure America and Orderly Immigration Act .
`(9) WHISTLEBLOWER PROTECTION- It shall be unlawful for an employer or a labor contractor of a nonimmigrant alien described in section 101(a)(15)(H)(v)(a) to intimidate, threaten, restrain, coerce, retaliate, discharge, or in any other manner, discriminate against an employee or former employee because the employee or former employee–
`(A) discloses information to the employer or any other person that the employee or former employee reasonably believes demonstrates a violation of Secure America and Orderly Immigration Act .
`(B) cooperates or seeks to cooperate in an investigation or other proceeding concerning compliance with the requirements of the Secure America and Orderly Immigration Act .
`(i) Labor Recruiters-
`(1) IN GENERAL- Each employer that engages in foreign labor contracting activity and each foreign labor contractor shall ascertain and disclose to each such worker who is recruited for employment the following information at the time of the worker’s recruitment:
`(A) The place of employment.
`(B) The compensation for the employment.
`(C) A description of employment activities.
`(D) The period of employment.
`(E) Any other employee benefit to be provided and any costs to be charged for each benefit.
`(F) Any travel or transportation expenses to be assessed.
`(G) The existence of any labor organizing effort, strike, lockout, or other labor dispute at the place of employment.
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(H) The existence of any arrangement with any owner, employer, foreign contractor, or its agent where such person receives a commission from the provision of items or services to workers.
`(I) The extent to which workers will be compensated through workers’ compensation, private insurance, or otherwise for injuries or death, including work related injuries and death, during the period of employment and, if so, the name of the State workers’ compensation insurance carrier or the name of the policyholder of the private insurance, the name and the telephone number of each person who must be notified of an injury or death, and the time period within which such notice must be given.
`(J) Any education or training to be provided or required, including the nature and cost of such training, who will pay such costs, and whether the training is a condition of employment, continued employment, or future employment.
`(K) A statement, in a form specified by the Secretary of Labor, describing the protections of this Act for workers recruited abroad.
`(2) FALSE OR MISLEADING INFORMATION- No foreign labor contractor or employer who engages in foreign labor contracting activity shall knowingly provide material false or misleading information to any worker concerning any matter required to be disclosed in paragraph (1).
`(3) LANGUAGES- The information required to be disclosed under paragraph (1) shall be provided in writing in English or, as necessary and reasonable, in the language of the worker being recruited. The Department of Labor shall make forms available in English, Spanish, and other languages, as necessary, which may be used in providing workers with information required under this section.
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(4) FEES- A person conducting a foreign labor contracting activity shall not assess any fee to a worker for such foreign labor contracting activity.
`(5) TERMS- No employer or foreign labor contractor shall, without justification, violate the terms of any agreement made by that contractor or employer regarding employment under this program.
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(6) TRAVEL COSTS- If the foreign labor contractor or employer charges the employee for transportation such transportation costs shall be reasonable.
`(7) OTHER WORKER PROTECTIONS-
`(A) NOTIFICATION- Every 2 years, each employer shall notify the Secretary of Labor of the identity of any foreign labor contractor engaged by the employer in any foreign labor contractor activity for or on behalf of the employer.
`(B) REGISTRATION OF FOREIGN LABOR CONTRACTORS-
`(i) IN GENERAL- No person shall engage in foreign labor recruiting activity unless such person has a certificate of registration from the Secretary of Labor specifying the activities that such person is authorized to perform. An employer who retains the services of a foreign labor contractor shall only use those foreign labor contractors who are registered under this subparagraph.
`(ii) ISSUANCE- The Secretary shall promulgate regulations to establish an efficient electronic process for the investigation and approval of an application for a certificate of registration of foreign labor contractors not later than 14 days after such application is filed. Such process shall include requirements under paragraphs (1), (4), and (5) of section 1812 of title 29, United States Code, an expeditious means to update registrations and renew certificates and any other requirements the Secretary may prescribe.
`(iii) TERM- Unless suspended or revoked, a certificate under this subparagraph shall be valid for 2 years.
`(iv) REFUSAL TO ISSUE; REVOCATION; SUSPENSION- In accordance with regulations promulgated by the Secretary of Labor, the Secretary may refuse to issue or renew, or may suspend or revoke, a certificate of registration under this subparagraph. The justification for such refusal, suspension, or revocation may include the following:
`(I) The application or holder of the certification has knowingly made a material misrepresentation in the application for such certificate.
`(II) The applicant for or holder of the certification is not the real party in interest in the application or certificate of registration and the real party in interest is a person who has been refused issuance or renewal of a certificate, has had a certificate suspended or revoked, or does not qualify for a certificate under this paragraph.
`(III) The applicant for or holder of the certification has failed to comply with the Secure America and Orderly Immigration Act .
S
TITLE VII–H-5B NONIMMIGRANTS
SEC. 701. H-5B NONIMMIGRANTS.
(a) In General- Chapter 5 of title II of the Immigration and Nationality Act (8 U.S.C. 1255 et seq.) is amended by adding after section 250 the following:
`H-5B NONIMMIGRANTS
`SEC. 250A. (a) In General- The Secretary of Homeland Security shall adjust the status of an alien to that of a nonimmigrant under section 101(a)(15)(H)(v)(b) if the alien–
`(1) submits an application for such adjustment; and
`(2) meets the requirements of this section.
`(b) Presence in the United States- The alien shall establish that the alien–
`(1) was present in the United States before the date on which the Secure America and Orderly Immigration Act was introduced, and has been continuously in the United States since such date; and
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(2) was not legally present in the United States on the date on which the Secure America and Orderly Immigration Act was introduced under any classification set forth in section 101(a)(15).
`(c) Spouses and Children- Notwithstanding any other provision of law, the Secretary of Homeland Security shall, if the person is otherwise eligible under subsection (b)–
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(1) adjust the status to that of a nonimmigrant under section 101(a)(15)(H)(v)(b) for, or provide a nonimmigrant visa to, the spouse or child of an alien who is provided nonimmigrant status under section 101(a)(15)(H)(v)(b); or
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(2) adjust the status to that of a nonimmigrant under section 101(a)(15)(H)(v)(b) for an alien who, before the date on which the Secure America and Orderly Immigration Act was introduced in Congress, was the spouse or child of an alien who is provided nonimmigrant status under section 101(a)(15)(H)(v)(b), or is eligible for such status, if–
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(A) the termination of the qualifying relationship was connected to domestic violence; and
`(B) the spouse or child has been battered or subjected to extreme cruelty by the spouse or parent alien who is provided nonimmigrant status under section 101(a)(15)(H)(v)(b).
`(d) Other Criteria-
`(1) IN GENERAL- An alien may be granted nonimmigrant status under section 101(a)(15)(H)(v)(b), or granted status as the spouse or child of an alien eligible for such status under subsection (c), if the alien establishes that the alien–
`(A) is not inadmissible to the United States under section 212(a), except as provided in paragraph (2); or
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(B) has not ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.
`(2) GROUNDS OF INADMISSIBILITY- In determining an alien’s admissibility under paragraph (1)(A)–
`(A) paragraphs (5), (6)(A), (6)(B), (6)(C), (6)(F), (6)(G), (7), (9), and (10)(B) of section 212(a) shall not apply for conduct that occurred before the date on which the Secure America and Orderly Immigration Act was introduced;
`(B) the Secretary of Homeland Security may not waive–
`(i) subparagraph (A), (B), (C), (E), (G), (H), or (I) of section 212(a)(2) (relating to criminals);
`(ii) section 212(a)(3) (relating to security and related grounds); or
`(iii) subparagraph (A) or (C) of section 212(a)(10) (relating to polygamists and child abductors);
`(C) for conduct that occurred before the date on which the Secure America and Orderly Immigration Act was introduced, the Secretary of Homeland Security may waive the application of any provision of section 212(a) not listed in subparagraph (B) on behalf of an individual alien for humanitarian purposes, to ensure family unity, or when such waiver is otherwise in the public interest; and
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(D) nothing in this paragraph shall be construed as affecting the authority of the Secretary of Homeland Security other than under this paragraph to waive the provisions of section 212(a).
`(3) APPLICABILITY OF OTHER PROVISIONS- Sections 240B(d) and 241(a)(5) shall not apply to an alien who is applying for adjustment of status in accordance with this title for conduct that occurred before the date on which the Secure America and Orderly Immigration Act was introduced.
`(e) Employment-
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(1) IN GENERAL- The Secretary of Homeland Security may not adjust the status of an alien to that of a nonimmigrant under section 101(a)(15)(H)(v)(b) unless the alien establishes that the alien–
`(A) was employed in the United States, whether full time, part time, seasonally, or self-employed, before the date on which the Secure America and Orderly Immigration Act was introduced; and
`(B) has been employed in the United States since that date.
`(2) EVIDENCE OF EMPLOYMENT-
`(A) CONCLUSIVE DOCUMENTS- An alien may conclusively establish employment status in compliance with paragraph (1) by submitting to the Secretary of Homeland Security records demonstrating such employment maintained by–
`(i) the Social Security Administration, Internal Revenue Service, or by any other Federal, State, or local government agency;
`(ii) an employer; or
`(iii) a labor union, day labor center, or an organization that assists workers in matters related to employment.
`(B) OTHER DOCUMENTS- An alien who is unable to submit a document described in clauses (i) through (iii) of subparagraph (A) may satisfy the requirement in paragraph (1) by submitting to the Secretary at least 2 other types of reliable documents that provide evidence of employment, including–
`(i) bank records;
`(ii) business records;
`(iii) sworn affidavits from nonrelatives who have direct knowledge of the alien’s work; or
`(iv) remittance records.
`(3) INTENT OF CONGRESS- It is the intent of Congress that the requirement in this subsection be interpreted and implemented in a manner that recognizes and takes into account the difficulties encountered by aliens in obtaining evidence of employment due to the undocumented status of the alien.
`(4) BURDEN OF PROOF- An alien described in paragraph (1) who is applying for adjustment of status under this section has the burden of proving by a preponderance of the evidence that the alien has satisfied the requirements of this subsection. An alien may meet such burden of proof by producing sufficient evidence to demonstrate such employment as a matter of reasonable inference.
`(f) Special Rules for Minors and Individuals Who Entered as Minors- The employment requirements under this section shall not apply to any alien under 21 years of age.
`(g) Education Permitted- An alien may satisfy the employment requirements under this section, in whole or in part, by full-time attendance at–
`(1) an institution of higher education (as defined in section 101 of the Higher Education Act of 1965 (20 U.S.C. 1001)); or
`(2) a secondary school (as defined in section 9101 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 7801)).
`(h) Security and Law Enforcement Background Checks-
`(1) SUBMISSION OF FINGERPRINTS- An alien may not be granted nonimmigrant status under section 101(a)(15)(H)(v)(b), or granted status as the spouse or child of an alien eligible for such status under subsection (c), unless the alien submits fingerprints in accordance with procedures established by the Secretary of Homeland Security.
`(2) BACKGROUND CHECKS- The Secretary of Homeland Security shall utilize fingerprints and other data provided by the alien to conduct a background check of such alien relating to criminal, national security, or other law enforcement actions that would render the alien ineligible for adjustment of status as described in this section.
`(3) EXPEDITIOUS PROCESSING- The background checks required under paragraph (2) shall be conducted as expeditiously as possible.
`(i) Period of Authorized Stay and Application Fee and Fine-
`(1) PERIOD OF AUTHORIZED STAY-
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(A) IN GENERAL- The period of authorized stay for a nonimmigrant described in section 101(a)(15)(H)(v)(b) shall be 6 years.
`(B) LIMITATION- The Secretary of Homeland Security may not authorize a change from such nonimmigrant classification to any other immigrant or nonimmigrant classification until the termination of the 6-year period described in subparagraph (A). The Secretary may only extend such period to accommodate the processing of an application for adjustment of status under section 245B.
`(2) APPLICATION FEE- The Secretary of Homeland Security shall impose a fee for filing an application for adjustment of status under this section. Such fee shall be sufficient to cover the administrative and other expenses incurred in connection with the review of such applications.
`(3) FINES-
`(A) IN GENERAL- In addition to the fee required under paragraph (2), the Secretary of Homeland Security may accept an application for adjustment of status under this section only if the alien pays a $1,000 fine.
`(B) EXCEPTION- Fines paid under this paragraph shall not be required from an alien under the age of 21.
`(4) COLLECTION OF FEES AND FINES- All fees and fines collected under this section shall be deposited in the Treasury in accordance with section 286(w).
`(j) Treatment of Applicants-
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(1) IN GENERAL- An alien who files an application under this section, including the alien’s spouse or child–
`(A) shall be granted employment authorization pending final adjudication of the alien’s application for adjustment of status;
`(B) shall be granted permission to travel abroad;
`(C) may not be detained, determined inadmissible or deportable, or removed pending final adjudication of the alien’s application for adjustment of status, unless the alien, through conduct or criminal conviction, becomes ineligible for such adjustment of status; and
`(D) may not be considered an unauthorized alien (as defined in section 274A(h)(3)) until employment authorization under subparagraph (A) is denied.
`(2) BEFORE APPLICATION PERIOD- If an alien is apprehended after the date of enactment of this section, but before the promulgation of regulations pursuant to this section, and the alien can establish prima facie eligibility as a nonimmigrant under section 101(a)(15)(H)(v)(b), the Secretary of Homeland Security shall provide the alien with a reasonable opportunity, after promulgation of regulations, to file an application for adjustment.
`(3) DURING CERTAIN PROCEEDINGS- Notwithstanding any provision of this Act , an alien who is in removal proceedings shall have an opportunity to apply for adjustment of status under this title unless a final administrative determination has been made.
`(4) RELATIONSHIPS OF APPLICATION TO CERTAIN ORDERS- An alien who is present in the United States and has been ordered excluded, deported, removed, or ordered to depart voluntarily from the United States under any provision of this Act may, notwithstanding such order, apply for adjustment of status in accordance with this section. Such an alien shall not be required to file a separate motion to reopen, reconsider, or vacate the exclusion, deportation, removal, or voluntary departure order. If the Secretary of Homeland Security grants the application, the Secretary shall cancel such order. If the Secretary of Homeland Security renders a final administrative decision to deny the application, such order shall be effective and enforceable to the same extent as if the application had not been made.
`(k) Administrative and Judicial Review-
`(1) ADMINISTRATIVE REVIEW-
`(A) SINGLE LEVEL OF ADMINISTRATIVE APPELLATE REVIEW- The Secretary of Homeland Security shall establish an appellate authority within the United States Citizenship and Immigration Services to provide for a single level of administrative appellate review of a determination respecting an application for adjustment of status under this section.
`(B) STANDARD FOR REVIEW- Administrative appellate review referred to in subparagraph (A) shall be based solely upon the administrative record established at the time of the determination on the application and upon the presentation of additional or newly discovered evidence during the time of the pending appeal.
`(2) JUDICIAL REVIEW-
`(A) IN GENERAL- There shall be judicial review in the Federal courts of appeal of the denial of an application for adjustment of status under this section. Notwithstanding any other provision of law, the standard for review of such a denial shall be governed by subparagraph (B).
`(B) STANDARD FOR JUDICIAL REVIEW- Judicial review of a denial of an application under this section shall be based solely upon the administrative record established at the time of the review. The findings of fact and other determinations contained in the record shall be conclusive unless the applicant can establish abuse of discretion or that the findings are directly contrary to clear and convincing facts contained in the record, considered as a whole.
`(C) JURISDICTION OF COURTS-
`(i) IN GENERAL- Notwithstanding any other provision of law, the district courts of the United States shall have jurisdiction over any cause or claim arising from a pattern or practice of the Secretary of Homeland Security in the operation or implementation of this section that is arbitrary, capricious, or otherwise contrary to law, and may order any appropriate relief.
`(ii) REMEDIES- A district court may order any appropriate relief under clause (i) if the court determines that resolution of such cause or claim will serve judicial and administrative efficiency or that a remedy would otherwise not be reasonably available or practicable.
`(3) STAY OF REMOVAL- Aliens seeking administrative or judicial review under this subsection shall not be removed from the United States until a final decision is rendered establishing ineligibility under this section.
`(l) Confidentiality of Information-
`(1) IN GENERAL- Except as otherwise provided in this subsection, no Federal agency or bureau, nor any officer, employee, or agent of such agency or bureau, may–
`(A) use the information furnished by the applicant pursuant to an application filed under this section for any purpose other than to make a determination on the application;
`(B) make any publication through which the information furnished by any particular applicant can be identified; or
`(C) permit anyone other than the sworn officers and employees of such agency or bureau to examine individual applications.
`(2) REQUIRED DISCLOSURES- The Secretary of Homeland Security shall provide the information furnished pursuant to an application filed under this section, and any other information derived from such furnished information, to a duly recognized law enforcement entity in connection with a criminal investigation or prosecution or a national security investigation or prosecution, in each instance about an individual suspect or group of suspects, when such information is requested in writing by such entity.
`(3) CRIMINAL PENALTY- Any person who knowingly uses, publishes, or permits information to be examined in violation of this subsection shall be fined not more than $10,000.
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(m) Penalties for False Statements in Applications-
`(1) CRIMINAL PENALTY-
`(A) VIOLATION- It shall be unlawful for any person–
`(i) to file or assist in filing an application for adjustment of status under this section and knowingly and willfully falsify, misrepresent, conceal, or cover up a material fact or make any false, fictitious, or fraudulent statements or representations, or make or use any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry; or
`(ii) to create or supply a false writing or document for use in making such an application.
`(B) PENALTY- Any person who violates subparagraph (A) shall be fined in accordance with title 18, United States Code, imprisoned not more than 5 years, or both.
`(2) INADMISSIBILITY- An alien who is convicted of a crime under paragraph (1) shall be considered to be inadmissible to the United States on the ground described in section 212(a)(6)(C)(i).
`(3) EXCEPTION- Notwithstanding paragraphs (1) and (2), any alien or other entity (including an employer or union) that submits an employment record that contains incorrect data that the alien used in order to obtain such employment before the date on which the Secure America and Orderly Immigration Act is introduced, shall not, on that ground, be determined to have violated this section.’.
(b) Clerical Amendment- The table of contents for the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) is amended by inserting after the item relating to section 250 the following:
`Sec. 250A. H-5B nonimmigrants.’.
SEC. 702. ADJUSTMENT OF STATUS FOR H-5B NONIMMIGRANTS.
(a) In General- Chapter 5 of title II of the Immigration and Nationality Act (8 U.S.C. 1255 et seq.) is amended by inserting after section 245A the following:
`ADJUSTMENT OF STATUS OF FORMER H-5B NONIMMIGRANT TO THAT OF PERSON ADMITTED FOR LAWFUL PERMANENT RESIDENCE
`
SEC. 245B. (a) Requirements- The Secretary shall adjust the status of an alien from nonimmigrant status under section 101(a)(15)(H)(v)(b) to that of an alien lawfully admitted for permanent residence under this section if the alien satisfies the following requirements:
`(1) COMPLETION OF EMPLOYMENT OR EDUCATION REQUIREMENT- The alien establishes that the alien has been employed in the United States, either full time, part time, seasonally, or self-employed, or has met the education requirements of subsection (f) or (g) of section 250A during the period required by section 250A(e).