H.R. 2: Secure the Border Act of 2023

Secure the Border Act of 2023

This bill makes various changes to immigration law, including by imposing limits on asylum eligibility and requiring employers to use an electronic system to verify the employment eligibility of new employees.

DIVISION A--BORDER SECURITY

This division requires certain actions related to border security.

(Sec. 102) This section requires the Department of Homeland Security (DHS) to resume all activities related to constructing a wall along the U.S.-Mexico border that were underway or planned prior to January 20, 2021.

(Sec. 103) This section imposes additional requirements on DHS related to the construction of barriers along the U.S.-Mexico border. For example, the bill requires DHS to construct a border wall (including related infrastructure and technology) along at least 900 miles of that border, whereas currently DHS is required to have at least 700 miles of reinforced fencing along that border.

This section also requires DHS to waive all legal requirements necessary to ensure the expeditious construction of the border barriers, whereas currently DHS is authorized to waive such requirements.

(Sec. 104) This section requires U.S. Customs and Border Protection (CBP) to submit a strategic five-year technology investment plan to Congress.

(Sec. 105) This section imposes certain documentation and acquisition-related standards on major border security technology acquisitions, generally those that cost at least $100 million based on FY2023 constant dollars.

(Sec. 106) This section requires CBP to (1) ensure that each CBP officer or agent is equipped with a two-way communication device, (2) fully implement the Border Security Deployment Program (a border surveillance program), and (3) upgrade license plate readers as needed at ports of entry along the northern and southern borders.

(Sec. 107) This section authorizes retention bonuses for eligible frontline U.S. Border Patrol law enforcement agents.

The section also requires CBP to maintain an active duty presence of at least 22,000 full-time equivalent Border Patrol agents by September 30, 2025.

(Sec. 108) This section modifies a provision that exempts certain applicants for CBP law enforcement positions from having to take a polygraph test. For example, this section provides this exemption to certain law enforcement officers, whereas currently the waiver is only available to eligible veterans.

The waiver provision established by this section is not applicable during periods when CBP certifies that it has met certain staffing requirements.

(Sec. 109) This section requires CBP to implement a workload staffing model for the Border Patrol and CBP Air and Marine Operations.

(Sec. 110) This section provides statutory authorization for Operation Stonegarden, a program which provides grants to law enforcement agencies that are (1) in a state with an international land or maritime border, and (2) involved in an active CBP operation coordinated through the Border Patrol.

(Sec. 111) This section establishes certain requirements for CBP Air and Marine Operations. For example, CBP must ensure that its Air and Marine Operations (1) carry out at least 110,000 flight hours each year, and (2) operate unmanned aircraft systems (drones) on the southern border 24 hours a day.

(Sec. 112) This section requires DHS to hire contractors to begin eradicating certain plant growth along the Rio Grande River that impedes border security operations.

(Sec. 113) This section requires the Border Patrol to issue a Border Patrol Strategic Plan to enhance border security.

(Sec. 115) This section prohibits DHS from (1) processing the entry of non-U.S. nationals (aliens under federal law) arriving in between ports of entry; (2) providing funds to nongovernmental organizations (NGOs) that facilitate or encourage unlawful activity; or (3) providing funds to NGOs that provide certain services, such as lodging or immigration legal services, to inadmissible non-U.S. nationals who enter the United States.

(Sec. 116) This section requires DHS to ensure that CBP is, within 14 days of this bill's enactment, fully compliant with federal DNA and biometric collection requirements at U.S. land borders.

(Sec. 117) This section requires CBP to periodically review and update, as necessary, manuals and policies related to inspections at ports of entry to ensure the uniformity of inspection practices to effectively detect illegal activity along the border, such as the smuggling of drugs and humans.

(Sec. 118) This section requires CBP to publish information monthly about CBP encounters with non-U.S. nationals, including the total number of encounters and the nationalities of the individuals encountered.

(Sec. 119) This section requires CBP to, within seven days of this bill's enactment, certify to Congress that CBP has real-time access to the criminal history databases of all countries of origin and transit for non-U.S. nationals encountered by CBP.

(Sec. 120) This section prohibits the Transportation Security Administration (TSA) from accepting as proof of identification certain documents, such as a warrant issued by U.S. Immigration and Customs Enforcement (ICE) or an employment authorization issued by DHS.

The TSA must collect the biometric information of any individual who (1) seeks to enter the aircraft boarding area of an airport where access is controlled by the TSA, (2) does not present an accepted identification document, and (3) the TSA cannot verify is a U.S. national. The TSA must share this collected biometric information with the Automated Biometric Identification System (IDENT).

(Sec. 121) This section prohibits DHS from (1) issuing any COVID-19 vaccine mandate unless expressly authorized by Congress, or (2) taking any adverse action against an employee based solely on the employee's refusal to receive a COVID-19 vaccine.

(Sec. 122) This section limits the use of the CBP One mobile application or a similar program. Specifically, DHS may only use such an application for inspecting perishable cargo.

(Sec. 124) This section requires the Government Accountability Office to study and report to Congress on the costs incurred by states in support of the federal mission to secure the southwest border and the feasibility of reimbursing states for such costs.

(Sec. 125) This section requires the Office of Inspector General of DHS to annually report to Congress on the economic and security impact of mass migration to municipalities and states along the southwest border.

(Sec. 126) This section specifies that no funds are authorized to be appropriated for specified DHS activities, including a pilot program for alternatives to detention or purchasing electric vehicles.

(Sec. 128) This section requires the Office of Inspector General of DHS to report to Congress an assessment of CBP's ability to mitigate unmanned aircraft systems along the southwest border.

DIVISION B--IMMIGRATION ENFORCEMENT AND FOREIGN AFFAIRS

TITLE I--ASYLUM REFORM AND BORDER PROTECTION

This title imposes additional requirements for asylum eligibility.

(Sec. 101) This section expands provisions that bar certain individuals from applying for asylum.

Currently, an individual may not apply for asylum if that individual may be removed to a third country (i.e., a country that is not the applicant's country of nationality or last habitual residence) if that third country has (1) a full and fair asylum process that the individual could use, and (2) an agreement with the United States allowing for such removals. This section expands this provision by authorizing removal to third countries that do not have an agreement with the United States.

This section also bars an individual from applying for asylum if the individual traveled through at least one third country before arriving in the United States, with certain exceptions (e.g., the individual applied for and was denied asylum in that third country).

(Sec. 102) This section modifies the standard for establishing an asylum applicant's credible fear of persecution.

Specifically, to find credible fear, an asylum officer must find that the applicant could more likely than not establish eligibility for asylum. Currently, an asylum officer must conclude that there is a significant possibility that the applicant could establish eligibility for asylum.

(Sec. 103) This section limits asylum eligibility to individuals who arrived in the United States at a port of entry.

(Sec. 104) This section expands the types of crimes that may make an individual ineligible for asylum, such as a conviction for (1) a misdemeanor relating to the unlawful possession or use of an identification, (2) an offense for driving while intoxicated causing another person's serious bodily injury or death, or (3) any felony.

This section further expands this bar to asylum eligibility by broadening the definition of felony to include any crime that is punishable by more than one year of imprisonment. (Some states have misdemeanors that are punishable by imprisonment of more than a year.) Currently, a felony is generally not a bar against asylum eligibility, though certain felonies, such as one for a particularly serious crime, would bar an individual if the individual constitutes a danger to the community.

(Sec. 105) This section establishes a duration of six months for an employment authorization for an applicant for asylum. Such an employment authorization may also be renewed for six months or terminated under specified conditions.

(Sec. 106) This section requires DHS to charge a fee for each asylum application, except for one filed by an unaccompanied alien child. Currently, DHS is authorized but not required to charge such fees.

The section also authorizes DHS to charge fees for a refugee's application for employment authorization or for lawful permanent resident status.

(Sec. 107) This section increases the requirements for qualifying as a refugee.

Generally, a refugee must have a well-founded fear of persecution based on certain characteristics, such as the individual's race, membership in a particular social group, or political opinion.

The section establishes additional requirements for meeting these criteria. For example, such persecution may not be based solely on (1) infrequently enforced laws or government policies unless there is credible evidence that the law or policy would be personally applied to the individual, or (2) conduct of rogue government officials acting outside their official capacity.

Furthermore, to be a member of a particular social group, the asylum applicant must establish that the group exists independently of the alleged acts of persecution (i.e., the group cannot be defined solely as the victims of the alleged persecution).

The section also imposes limits on when DHS or DOJ may exercise discretion in favor of an asylum applicant. For example, favorable discretion may not be exercised, with certain exceptions, for an applicant who (1) has been unlawfully present in the United States for more than one year before applying for asylum; or (2) failed to file federal, state, or local tax returns.

(Sec. 108) This section establishes certain situations when an asylum applicant must be considered to have firmly resettled in another country. (Generally, an individual who has firmly resettled in a country that is not their country of nationality is not eligible for asylum.)

For example, an individual must be considered to have firmly resettled in another country if, after the events giving rise to the asylum claim, the individual resided in a country where the individual was eligible for any permanent or indefinitely renewable legal immigration status, such as refugee status.

(Sec. 109) This section establishes a statutory definition of what constitutes a frivolous asylum application, whereas currently this definition is defined in regulations. Under this bill, an application is frivolous if (1) it is so insufficient in substance that it is clear that it was filed to achieve another objective, such as to delay removal; or (2) any material elements are knowingly fabricated.

(Sec. 111) This section requires DOJ to establish procedures to expedite the adjudication of asylum applications from individuals who are (1) subject to formal removal proceedings; and (2) nationals of a Western Hemisphere country subject to sanctions related to Cuba, Nicaragua, or Venezuela.

TITLE II--BORDER SAFETY AND MIGRANT PROTECTION

(Sec. 201) This section expands the category of non-U.S. nationals who are subject to expedited removal (i.e., removal without further hearing or review) and addresses related issues.

Specifically, this section requires expedited removal for individuals who are unlawfully present or who unlawfully entered the United States. (Currently, DHS may, but is not required to, apply expedited removal to unlawfully present individuals who have been physically present in the United States for less than two years.)

This section also requires, with certain exceptions, detention for individuals who (1) are subject to expedited removal, (2) are subject to expedited removal and have expressed an intention to apply for asylum, or (3) have established a credible fear of persecution and are awaiting consideration of an asylum application.

If DHS cannot comply with this detention requirement or remove an individual to a safe third country, DHS must return the individual to the neighboring country that the individual traveled through to reach the United States while the individual's case is pending.

A state may sue DHS to enforce the requirements imposed by this section.

This section also authorizes DHS to suspend the introduction of certain non-U.S. nationals at an international border if DHS determines that the suspension is necessary to achieve operational control of that border.

(Sec. 202) This section requires DHS to take all actions necessary to reopen or restore all ICE detention facilities that were in operation on January 20, 2021.

TITLE III--PREVENTING UNCONTROLLED MIGRATION FLOWS IN THE WESTERN HEMISPHERE

(Sec. 302) This section requires the Department of State to seek to negotiate agreements with Western Hemisphere countries on cooperation and burden sharing on issues related to asylum seekers and immigration.

(Sec. 303) This section requires the State Department to periodically brief Congress on the process of its negotiations pursuant to the previous section of this bill.

TITLE IV--ENSURING UNITED FAMILIES AT THE BORDER

(Sec. 401) This section statutorily establishes that there is no presumption that an alien child (other than an unaccompanied child) should not be detained for immigration purposes.

Specifically, the section states that the detention of such minors shall be governed by specified sections of the Immigration and Nationality Act and not any other provision of law, judicial ruling, or settlement agreement.

(A 1997 settlement agreement, commonly known as the Flores agreement, imposes requirements relating to the treatment of detained alien minors, including requiring such minors to be released or placed in a nonsecure facility after a certain amount of time in detention.)

If an adult enters the United States unlawfully with their child, DHS must detain the adult and child together if the only criminal charge against the adult is for unlawful entry.

This section also prohibits states from imposing licensing requirements on immigration detention facilities used to detain minors or families with minors.

TITLE V--PROTECTION OF CHILDREN

(Sec. 502) This section modifies the treatment of unaccompanied alien children, including by requiring DHS to remove such children, with some exceptions, from the United States.

Current law authorizes DHS to remove an unaccompanied alien child to their country of nationality or last habitual residence if that country is next to the United States. This section (1) eliminates the requirement that the country is next to the United States; and (2) requires DHS to remove the child, whereas currently DHS is authorized to do so.

This section also authorizes immigration officers to permit such a child to withdraw their application for admission into the United States even if the child is unable to make an independent decision to withdraw the application.

This section also establishes and modifies deadlines for the handling of unaccompanied alien children. For example, if the child is a victim of a severe form of human trafficking or has a credible fear of persecution, the child must be placed in formal removal proceedings and have a hearing before an immigration judge within 14 days of screening.

Furthermore, before DHS places an unaccompanied alien child with an individual, the Department of Health and Human Services must provide DHS with certain information about the individual, including the individual's social security number and immigration status. DHS must initiate removal proceedings if the individual is unlawfully present.

(Sec. 503) This section tightens the eligibility requirements for Special Immigrant Juvenile visas (immigrant visas for qualifying non-U.S. nationals under 21 years of age who are in the United States and have been abused, abandoned, or neglected by a parent).

Currently, an otherwise eligible individual may qualify for the visa if the individual cannot reunite with one or both parents due to abuse, neglect, or abandonment (i.e., an individual may qualify even if reunification with one parent is possible). Under this section, an individual shall not qualify for the visa if reunification is possible with any parent or legal guardian.

TITLE VI--VISA OVERSTAYS PENALTIES

(Sec. 601) This section increases the civil penalties for unlawful entry into the United States and establishes criminal penalties for overstaying a visa.

An individual apprehended while unlawfully entering the United States shall be subject to a fine of at least $500 and up to $1,000 (currently at least $50 and up to $250).

If an individual overstays a visa (or otherwise fails to comply with the conditions of a visa) for 10 days or more, on first offense the individual shall be subject to fines or imprisonment for up to six months, or both. For subsequent violations, the individual shall be subject to fines or imprisonment of up to two years, or both.

TITLE VII--IMMIGRATION PAROLE REFORM

(Sec. 701) This section limits the authority of DHS to grant parole (temporary admission into the United States for urgent humanitarian reasons or significant public benefit that is granted on a case-by-case basis).

Under this section, DHS may not grant parole based on eligibility criteria describing an entire class of potential parole recipients.

This section restricts DHS from granting parole to non-U.S. nationals who are already in the United States, with specified exceptions, such as for certain individuals who already have an approved petition for a family-sponsored visa and are the spouse or child of an active duty member of the Armed Forces.

The section further restricts the authority of DHS to grant parole, including by limiting (1) what constitutes granting parole on a case-by-case basis, (2) the authority to grant parole to purposes laid out in the section, and (3) the length of the parole period that may be granted to an individual.

(Sec. 702) This title takes effect 30 days after enactment of this bill, with specified exceptions.

(Sec. 703) This section authorizes persons (individuals or entities), states, and local governments to sue the federal government for failing to comply with this title's requirements if the person or government bringing the lawsuit suffered at least $1,000 of financial harm as a result of the failure.

TITLE VIII--LEGAL WORKFORCE

This title requires employers to use an electronic employment eligibility verification system modeled after the E-Verify program and addresses other issues related to employment eligibility.

(Sec. 801) This section requires all employers to use the electronic employment eligibility verification system established under section 802 of this bill. The section also makes other changes to the requirements for employers to confirm the identity and employment eligibility of new employees, such as by imposing additional limits on the documents which may be used to verify an individual's identity and employment eligibility.

This section establishes procedures related to the verification system's use. For example, if the system provides a tentative nonconfirmation of an individual's identity or work eligibility, the individual may challenge the result by using the system's secondary verification process. If the individual does not challenge the tentative nonconfirmation, the result shall become final.

An employer may not rescind an employment offer or fire an employee for a tentative nonconfirmation until the result becomes final.

If an employer hires (or does not fire) an individual after a final nonconfirmation of identity or employment eligibility, the employer must inform DHS that it has done so. Failure to inform DHS shall constitute a failure to meet requirements to verify employment eligibility. Hiring or not firing an individual with a final nonconfirmation shall constitute a rebuttable presumption that the employer has failed to meet the eligibility verification requirements.

This section phases in the requirement to use the new system to verify new hires. The first group of employers required to use the system, nonagricultural employers with 10,000 or more U.S. employees, must do so beginning six months after this title's enactment. Employers with fewer employees are subject to later deadlines. Agricultural employers must start using the system beginning three years after this title's enactment. DHS must grant a one-time extension to this deadline upon request to employers with 50 or fewer employees.

Employers must also use the system to reverify individuals on limited periods of work authorization (e.g., a work visa) no later than three days after the authorization expires. This requirement is subject to the same phase-in schedule as the requirement for verifying new hires.

This section also requires employers to use the system to verify the identity and employment eligibility of certain previously hired individuals, such as (1) federal or state employees who were not previously verified under E-Verify, and (2) individuals using a Social Security number that the Social Security Administration (SSA) has flagged for a pattern of unusual use.

Employers may voluntarily choose to use the system before being required to do so by this section, subject to certain requirements.

An employer who has made a good faith attempt to comply with this section's requirements shall be deemed to be in compliance unless the employer (1) does not to correct a failure after being informed by DHS of the failure, or (2) has engaged in a pattern or practice of violations of this section's requirements.

DHS may extend the deadlines in this section by six months by certifying to Congress that the verification system will not be fully operational within six months of this title's enactment.

(Sec. 802) This section requires DHS to establish and administer an employment eligibility confirmation modeled after the E-Verify system.

The system must (1) respond to electronic inquiries concerning an individual's identity and authorization to work in the United States; and (2) maintain records about such inquiries, including the responses to the inquiries.

The system must provide an initial response to an inquiry within three working days. For cases where the initial response is a tentative nonconfirmation of the individual's employment eligibility, the system must have a secondary verification process which, if used, must provide a final result within 10 working days of the initial response, with extensions available on a case-by-case basis.

DHS and the SSA must establish methods to provide and update the information required for the system to respond to inquiries.

DHS may authorize or require a person responsible for critical infrastructure to use the verification system if doing so would help protect the critical infrastructure.

An individual who alleges that they lost a job or job offer due to an error by the verification system may (1) seek compensation only through the Federal Tort Claims Act, and (2) injunctive relief. Such an individual may not bring a class action lawsuit.

(Sec. 803) This section requires individuals and entities that recruit or refer individuals for employment, including union hiring halls and public or private labor service agencies, to use the verification system when recruiting or making a referral.

(Sec. 804) This section establishes that an employer (or an entity that recruits or refers for employment) who uses the verification system in good faith is not liable for employment-related actions taken in good-faith reliance on the information provided by the system.

(Sec. 805) This section preempts any state or local laws relating to the employment and employment eligibility verification of unauthorized non-U.S. nationals.

States and localities may take certain actions to enforce this title's provisions, including using its business licensing authority to penalize businesses for failing to use the verification system.

(Sec. 806) This section repeals the provisions that established the E-Verify pilot program. It also establishes that any reference in federal law, executive order, rule, or regulation that refers to the E-Verify pilot program is deemed to refer to the verification program established by Section 802 of this bill.

(Sec. 807) This section increases the civil monetary penalties for hiring, recruiting, and referral violations involving unauthorized workers and establishes that failing to use the verification system established by this title constitutes such a violation. The section also increases the criminal penalties for engaging in a pattern or practice of such violations.

DHS may debar an individual or entity from receiving federal contracts and grants for repeat hiring violations (including failures to use the verification system) or a criminal conviction for such a violation.

DHS shall also establish an office to (1) receive information from state and local agencies about potential hiring, recruiting, and referral violations involving unauthorized workers, and (2) investigate claims based on such information.

(Sec. 808) This section establishes that an individual who knowing misuses a document meant to establish work authorization is subject to fines, imprisonment for up to five years, or both. (Currently, the statute in question only refers to misusing identification documents.)

(Sec. 809) This section requires DHS and the SSA to enter into an agreement by October 1, 2023, to provide funds to the SSA for the full costs of its responsibilities under this title.

(Sec. 810) This section requires DHS to establish programs to combat fraud related to the employment eligibility verification system established by this title.

Specifically, DHS must, in consultation with the SSA, establish programs to (1) block Social Security numbers with unusual use patterns in the system, (2) allow individuals to suspend or limit the use of their Social Security numbers or other identifying information in the system, and (3) allow parents to suspend or limit the use of their child's Social Security number or other identifying information in the system.

(Sec. 812) This section requires DHS to establish at least two pilot programs that use different technologies for verifying the identity and employment eligibility of new employees.

(Sec. 813) This section requires the Office of the Inspector General of the SSA to find unauthorized workers by auditing cases involving (1) a worker disputing wages reported on their Social Security number, (2) a child's Social Security number being used for work purposes, or (3) an employer with many workers with mismatched Social Security numbers or names. The SSA must report these audits to Congress.

(Sec. 816) This section nullifies two Department of Labor final rules related to H-2A (temporary or seasonal agricultural workers) visas.

The first final rule is entitled Temporary Agricultural Employment of H-2A Nonimmigrants in the United States and was published on October 12, 2022. This rule makes various changes to the program, including by (1) modifying rules relating to what constitutes joint employment and when employers are treated as joint employers; and (2) requiring rental accommodations used to house H-2A workers to meet applicable local, state, or federal health and safety standards.

The second final rule is entitled Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in Non-Range Occupations in the United States and was published on February 28, 2023. This rule makes changes to the methodology used to set adverse effect wage rates, including by using Bureau of Labor Statistics wage surveys in certain instances. (Generally, the minimum wage for an H-2A worker is the highest of the adverse effect wage rate, the applicable minimum wage, the prevailing wage for that occupation in that area, or any agreed-upon collective bargaining wage.)