Earned Legalization and Family Unification Act of 2003

        [Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1830 Introduced in House (IH)]

108th CONGRESS
1st Session
H. R. 1830

To amend the Immigration and Nationality Act to provide for permanent
resident status for certain long-term resident workers and college-
bound students, to modify the worldwide level of family-sponsored
immigrants in order to promote family unification, and for other
purposes.

_______________________________________________________________________

IN THE HOUSE OF REPRESENTATIVES

April 12, 2003

Ms. Jackson-Lee of Texas introduced the following bill; which was
referred to the Committee on the Judiciary

_______________________________________________________________________

A BILL

To amend the Immigration and Nationality Act to provide for permanent
resident status for certain long-term resident workers and college-
bound students, to modify the worldwide level of family-sponsored
immigrants in order to promote family unification, and for other
purposes.

Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Earned Legalization and Family
Unification Act of 2003''.

SEC. 2. LEGALIZATION OF STATUS.

(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 new section:

``adjustment of status of certain long-term resident workers and
college-bound students to that of alien lawfully admitted for permanent
residence

``Sec. 245B. (a) Adjustment to Permanent Resident Status for
Certain Workers, Spouses, and Children.--The Attorney General shall
adjust the status of an alien to that of an alien lawfully admitted for
permanent residence if the alien meets the following requirements:
``(1) Timely application.--
``(A) During application period.--Except as
provided in subparagraph (B), the alien must apply for
such adjustment during the 36-month period beginning on
the date final regulations are issued to carry out this
section.
``(B) Information included in application.--Each
application under this subsection shall contain such
information as the Attorney General may require,
including information on living relatives of the
applicant with respect to whom a petition for
preference or other status may be filed by the
applicant at any later date under section 204(a).
``(2) Continuous 5-year residence.--
``(A) In general.--The alien must establish that
the alien--
``(i) entered the United States before the
date that is 5 years before the date of the
enactment of this Act;
``(ii) has resided continuously in the
United States during the 5-year period ending
on the date of the enactment of this Act and
through the date the application was filed
under this subsection; and
``(iii) was in the United States on the
date of the enactment of this Act in an
unlawful status and has resided continuously in
the United States in an unlawful status since
such date and through the date the application
was filed under this subsection.
``(B) Nonimmigrants.--In the case of an alien who
entered the United States as a nonimmigrant before the
date of the enactment of this Act, the alien must also
establish that the alien's period of authorized stay as
a nonimmigrant expired before such date through the
passage of time or the alien's unlawful status was
known to the Government as of such date.
``(C) Exchange visitors.--If the alien was at any
time a nonimmigrant exchange alien (as defined in
section 101(a)(15)(J)), the alien must establish that
the alien was not subject to the two-year foreign
residence requirement of section 212(e) or has
fulfilled that requirement or received a waiver
thereof.
``(D) Other lawful aliens.--Notwithstanding any
other provision of this paragraph, in the case of an
alien who is in a lawful status, other than a
nonimmigrant status, on the date of the enactment of
this Act, the alien must establish that the alien has
resided continuously in the United States in such
status during the 5-year period ending on the date of
the enactment of this Act.
``(3) Continuous presence since enactment.--
``(A) In general.--The alien must establish that
the alien has been continuously present in the United
States since the date of the enactment of this section.
``(B) Treatment of brief, casual, and innocent
absences.-- An alien shall not be considered to have
failed to maintained continuous presence in the United
States for purposes of subparagraph (A), or continuous
residence in the United States for purposes of
paragraph (2), by virtue of brief, casual, and innocent
absences from the United States.
``(C) Admissions.--Nothing in this section shall be
construed as authorizing an alien to apply for
admission to, or to be admitted to, the United States
in order to apply for adjustment of status under this
subsection.
``(4) Admissible as immigrant.--The alien must establish
that the alien--
``(A) is admissible to the United States as an
immigrant, except as otherwise provided under
subsection (e)(2);
``(B) has not been convicted of any felony or of
three or more misdemeanors committed in the United
States;
``(C) has not assisted in the persecution of any
person or persons on account of race, religion,
nationality, membership in a particular social group,
or political opinion; and
``(D) is registered or registering under the
Military Selective Service Act, if the alien is
required to be so registered under that Act.
``(5) Employment in united states.--
``(A) In general.--The alien must have been
employed (whether or not lawfully) in the United
States, in the aggregate, for at least 520 of the
workdays occurring during the 5-year period ending on
the date of the enactment of this Act.
``(B) Exception for alien children.--Subparagraph
(A) shall not apply to an individual under 23 years of
age on the date on which the application was filed
under this subsection.
``(C) Evidence of employment.--For purposes of
satisfying the requirement of subparagraph (A), the
alien may submit, among other evidence--
``(i) records maintained by the
Commissioner of Social Security;
``(ii) other employment records;
``(iii) tax records;
``(iv) bank account records; and
``(v) attestations from community leaders,
religious leaders, co-workers, or store owners.
``(D) Burden of proof.--An alien applying for
adjustment of status under this subsection has the
burden of proving by a preponderance of the evidence
that the alien has worked the requisite number of days
(as required under subparagraph (A)). An alien can meet
such burden of proof by producing sufficient evidence
to show the extent of that employment as a matter of
just and reasonable inference. In such a case, the
burden then shifts to the Attorney General to disprove
the alien's evidence with a showing which negates the
reasonableness of the inference to be drawn from the
evidence.
``(6) Payment of income taxes.--
``(A) In general.--The alien must demonstrate the
payment of all Federal and State income taxes owed for
employment during the 3-year period preceding the date
the application was filed under this subsection. The
alien may satisfy such requirement through
demonstrating that no such tax liability exists or
through satisfaction of all outstanding liabilities
(including through execution of a binding agreement to
pay back taxes owing).
``(7) Basic citizenship skills.--
``(A) In general.--The alien must demonstrate that
the alien either--
``(i) meets the requirements of section
312(a) (relating to minimal understanding of
ordinary English and a knowledge and
understanding of the history and government of
the United States); or
``(ii) is satisfactorily pursuing a course
of study (recognized by the Attorney General)
to achieve such an understanding of English and
such a knowledge and understanding of the
history and government of the United States.
``(B) Exceptions.--
``(i) Mandatory.--The requirements of
subparagraph (A) shall not apply to any person
who is--
``(I) 65 years of age or older; or
``(II) unable because of physical
or developmental disability or mental
impairment to comply therewith.
``(ii) Discretionary.--The Attorney General
may, in his discretion, waive all or part of
the requirements of subparagraph (A) in the
case of an alien who is 50 years of age or
older.
``(C) Relation to naturalization examination.--In
accordance with regulations of the Attorney General, an
alien who has demonstrated under subparagraph (A)(i)
that the alien meets the requirements of section 312(a)
may be considered to have satisfied the requirements of
that section for purposes of becoming naturalized as a
citizen of the United States under title III.
``(b) Family Unification.--An alien who, as of the date of filing
an application under subsection (a), is the spouse or child of an alien
who qualifies for adjustment of status under subsection (a) shall, if
not otherwise entitled to such adjustment of status, be entitled to the
same status if accompanying or following to join the spouse or parent
if--
``(1) the spouse or child meets the requirements of
subsection (a)(4); and
``(2) the spouse or child was included in the application
information required under subsection (a)(1)(B).
``(c) Adjustment to Permanent Resident Status for Certain Children
in Middle or Secondary School.--
``(1) In general.--The Attorney General shall adjust the
status of an alien to that of an alien lawfully admitted for
permanent residence if the alien meets the following
requirements:
``(A) Timely application.--
``(i) Age on application date.--The alien
must not have attained 25 years of age before
the date on which the application for
adjustment under this subsection was filed.
``(ii) Other requirements.--The
requirements of subparagraphs (A) and (B) of
subsection (a)(1) shall apply to an application
under this subsection.
``(B) Continuous presence.--
``(i) In general.--The alien must establish
that the alien was present in the United States
on the date of the enactment of this section
and has been present in the United States for a
continuous period of not less than 5 years
immediately preceding the date on which the
application under subparagraph (A) was filed.
``(ii) Treatment of brief, casual, and
innocent absences.-- An alien shall not be
considered to have failed to maintained
continuous presence in the United States for
purposes of clause (i) by virtue of brief,
casual, and innocent absences from the United
States.
``(iii) Admissions.--Nothing in this
section shall be construed as authorizing an
alien to apply for admission to, or to be
admitted to, the United States in order to
apply for adjustment of status under this
subsection.
``(C) Good moral character.--The alien must
demonstrate that the alien has been a person of good
moral character during the 5 years immediately
preceding the date on which the application under
subparagraph (A) was filed.
``(D) Student.--The alien, at the time of
application, must be enrolled at or above the 7th grade
level in a school in the United States or be enrolled
in, or actively pursuing admission to, an institution
of higher education in the United States (as defined in
section 101 of the Higher Education Act of 1965 (20
U.S.C. 1001)).
``(E) Admissible as immigrant.--The alien must
satisfy the requirements of subsection (a)(4).
``(2) No derivative right of parents.--The parent of an
alien who adjusts status pursuant to this subsection shall not
be granted the same status by reason of accompanying or
following to join unless otherwise entitled to such status.
``(d) Applications for Adjustment of Status.--
``(1) To whom may be made.--The Attorney General shall
provide that applications for adjustment of status under this
section may be filed--
``(A) with the Attorney General; or
``(B) with a qualified designated entity, but only
if the applicant consents to the forwarding of the
application to the Attorney General.
As used in this section, the term `qualified designated entity'
means an organization or person designated under paragraph (2).
``(2) Designation of qualified entities to receive
applications.--For purposes of assisting in the program of
legalization provided under this section, the Attorney
General--
``(A) shall designate qualified voluntary
organizations and other qualified State, local, and
community organizations; and
``(B) may designate such other persons as the
Attorney General determines are qualified and have
substantial experience, demonstrated competence, and
traditional long-term involvement in the preparation
and submittal of applications for adjustment of status
under section 209 or 245, Public Law 89-732, or Public
Law 95-145 (including qualified designated entities
under section 245A).
``(3) Treatment of applications by designated entities.--
Each qualified designated entity must agree to forward to the
Attorney General applications filed with it in accordance with
paragraph (1)(B) but not to forward to the Attorney General
applications filed with it unless the applicant has consented
to such forwarding. No such entity may make a determination
required by this section to be made by the Attorney General.
``(4) Limitation on access to information.--Files and
records of qualified designated entities relating to an alien's
seeking assistance or information with respect to filing an
application under this section are confidential and the
Attorney General and the Service shall not have access to such
files or records relating to an alien without the consent of
the alien.
``(5) Confidentiality of information.--
``(A) In general.--Except as provided in this
paragraph, neither the Attorney General, nor any other
official or employee of the Department of Justice, or
bureau or agency thereof, may--
``(i) 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 for
enforcement of paragraph (6), or for the
preparation of reports to Congress under law;
``(ii) make any publication whereby the
information furnished by any particular
applicant can be identified; or
``(iii) permit anyone other than the sworn
officers and employees of the Department or
bureau or agency or, with respect to
applications filed with a designated entity,
that designated entity, to examine individual
applications.
``(B) Required disclosures.--The Attorney General
shall provide the information furnished 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, when such information is
requested in writing by such entity, or to an official
coroner for purposes of affirmatively identifying a
deceased individual (whether or not such individual is
deceased as a result of a crime).
``(C) Authorized disclosures.--The Attorney General
may provide, in the Attorney General's discretion, for
the furnishing of information furnished under this section in the same
manner and circumstances as census information may be disclosed by the
Secretary of Commerce under section 8 of title 13, United States Code.
``(D) Construction.--
``(i) In general.--Nothing in this
paragraph shall be construed to limit the use,
or release, for immigration enforcement
purposes or law enforcement purposes of
information contained in files or records of
the Service pertaining to an application filed
under this section, other than information
furnished by an applicant pursuant to the
application, or any other information derived
from the application, that is not available
from any other source.
``(ii) Criminal convictions.--Information
concerning whether the applicant has at any
time been convicted of a crime may be used or
released for immigration enforcement purposes.
``(E) Crime.--Whoever knowingly uses, publishes, or
permits information to be examined in violation of this
paragraph shall be fined not more than $10,000.
``(6) Penalties for false statements in applications.--
Whoever files an application for adjustment of status under
this section and knowingly and willfully falsifies,
misrepresents, conceals, or covers up a material fact or makes
any false, fictitious, or fraudulent statements or
representations, or makes or uses any false writing or document
knowing the same to contain any false, fictitious, or
fraudulent statement or entry, shall be fined in accordance
with title 18, United States Code, or imprisoned not more than
5 years, or both.
``(7) Application fees.--
``(A) Fee schedule.--The Attorney General, in
consultation with the Congress, shall provide for a
schedule of fees to be charged for the filing of
applications for adjustment under this section. Such
fees may not exceed $100 per individual or $300 per
family.
``(B) Use of fees.-- The Attorney General shall
deposit payments received under this paragraph in a
separate account and amounts in such account shall be
available, without fiscal year limitation, to cover
administrative and other expenses incurred in
connection with the review of applications filed under
this section.
``(e) Waiver of Numerical Limitations and Certain Grounds for
Inadmissibility.--
``(1) Numerical limitations do not apply.--The numerical
limitations of sections 201 and 202 shall not apply to the
adjustment of aliens to lawful permanent resident status under
this section.
``(2) Waiver of grounds for inadmissibility.--In the
determination of an alien's admissibility under this section,
the following provisions shall apply:
``(A) Grounds of inadmissibility not applicable.--
The provisions of paragraphs (5), (6)(A), (6)(C),
(6)(F), (6)(G), (7)(A), (9)(B), and (9)(C) of section
212(a) shall not apply.
``(B) Waiver of other grounds.--
``(i) In general.--Except as provided in
clause (ii), the Attorney General may waive any
other provision of section 212(a) in the case
of individual aliens for humanitarian purposes,
to assure family unity, or when it is otherwise
in the public interest.
``(ii) Grounds that may not be waived.--The
following provisions of section 212(a) may not
be waived by the Attorney General under clause
(i):
``(I) Paragraphs (2)(A) and (2)(B)
(relating to criminals).
``(II) Paragraph (2)(C) (relating
to drug offenses), except for so much
of such paragraph as relates to a
single offense of simple possession of
30 grams or less of marijuana.
``(III) Paragraph (3) (relating to
security and related grounds).
``(IV) Paragraph (4) (relating to
aliens likely to become public
charges).
Subclause (IV) (prohibiting the waiver of
section 212(a)(4)) shall not apply to an alien
who is or was an aged, blind, or disabled
individual (as defined in section 1614(a)(1) of
the Social Security Act).
``(iii) Special rule for determination of
public charge.--An alien is not ineligible for
adjustment of status under this section due to
being inadmissible under section 212(a)(4) if
the alien demonstrates a history of employment in the United States
evidencing self-support without receipt of public cash assistance.
``(C) Medical examination.--The alien shall be
required, at the alien's expense, to undergo such a
medical examination (including a determination of
immunization status) as is appropriate and conforms to
generally accepted professional standards of medical
practice.
``(f) Temporary Stay of Removal and Work Authorization for Certain
Applicants.--
``(1) Before application period.--The Attorney General
shall provide that in the case of an alien who is apprehended
before the beginning of the application period described in
subsection (a)(1)(A) and who can establish a prima facie case
of eligibility to have the alien's status adjusted under this
section (but for the fact that the alien may not apply for such
adjustment until the beginning of such period), until the alien
has had the opportunity during the first 120 days of the
application period to complete the filing of an application for
adjustment, the alien--
``(A) may not be removed from the United States;
and
``(B) shall be granted authorization to engage in
employment in the United States and be provided an
`employment authorized' endorsement or other
appropriate work permit.
``(2) During application period.--The Attorney General
shall provide that in the case of an alien who presents a prima
facie application for adjustment of status under this section
during the application period, and until a final determination
on the application has been made in accordance with this
section, including any judicial review thereof, the alien--
``(A) may not be removed from the United States;
and
``(B) shall be granted authorization to engage in
employment in the United States and be provided an
`employment authorized' endorsement or other
appropriate work permit.
``(3) Advance parole authority.--The Attorney General shall
establish a process for the approval of advance parole (under
section 212(d)(5)) for applicants to travel outside the United
States with prior approval in the case of--
``(A) business or family necessity; or
``(B) emergency or extenuating circumstances
outside the control of the alien.
``(g) Administrative and Judicial Review.--
``(1) In general.--There shall be no administrative or
judicial review of a determination respecting an application
for adjustment of status under this section except in
accordance with this subsection.
``(2) Administrative review.--
``(A) Single level of administrative appellate
review.--The Attorney General shall establish an
appellate authority to provide for a single level of
administrative appellate review of a determination
described in paragraph (1).
``(B) Standard for review.--Such administrative
appellate review shall be based solely upon the
administrative record established at the time of the
determination on the application and upon such
additional or newly discovered evidence as may not have
been available at the time of the determination.
``(3) Judicial review.--
``(A) Direct review.--A person whose application
for adjustment of status under this section is denied
after administrative appellate review under paragraph
(2) may seek review of such denial before the United
States district court for the district in which such
person resides in accordance with chapter 7 of title 5,
United States Code.
``(B) Review after removal proceedings.--There
shall be judicial review of the denial of an
application for adjustment of status under this section
in the judicial review of an order of removal,
deportation, or exclusion, but only if the validity of
the denial has not been upheld in a prior judicial
proceeding under subparagraph (A). Notwithstanding any
other provision of law, the standard for review of such
a denial shall be governed by subparagraph (C).
``(C) 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.
``(D) Jurisdiction of courts.--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
Attorney General in the operation or implementation of
this section that is arbitrary, capricious, or
otherwise contrary to law, and may order any
appropriate relief. The district courts may order any
appropriate relief in accordance with the preceding
sentence without regard to exhaustion, ripeness, or
other standing requirements, 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.
``(h) Inapplicability of Removal Order Reinstatement.--Section
241(a)(5) shall not apply with respect to an alien who is applying for
adjustment of status under this section.
``(i) Implementation of Section.--
``(1) In general.--Except as otherwise provided in this
section, for comparable provisions of this section and section
245A, the Attorney General shall base the regulations
prescribed to implement this section on the regulations (as
implemented after judicial review) prescribed by the Attorney
General under section 245A(g) that were most recently in effect
before the date of the enactment of this section.
``(2) Identity.--
``(A) In general.--The Attorney General, after
consultation with the Committees on the Judiciary of
the House of Representatives and of the Senate, shall
prescribe regulations with respect to how an alien may
establish his or her identity for purposes of this
section.
``(B) Evidence.--The Attorney General shall provide
that the applicant may submit evidence to establish his
or her identity, including--
``(i) attestations;
``(ii) photographs;
``(iii) rental records;
``(iv) medical records; and
``(v) employment records.
``(3) Treatment of certain absences.--
``(A) Waiver.--The Attorney General may provide for
a waiver, in the discretion of the Attorney General, of
an absence from the United States that otherwise would
be considered to break a period of continuous residence
in the case of an absence from the United States due
merely to a brief temporary trip abroad required by--
``(i) business or family necessity; or
``(ii) emergency or extenuating
circumstances outside the control of the alien.
``(B) Absences caused by removal.--If a waiver is
granted pursuant to subsection (e)(2)(B) for an alien
who is inadmissible under section 212(a)(9)(A) due to
having been ordered removed, or having departed the
United States while an order of removal was
outstanding, the Attorney General shall provide that
any period of time during which the alien is outside
the United States because of such removal or departure
shall be disregarded in determining any period of
continuous residence or presence in the United States
for purposes of this section.
``(j) Dissemination of Information on Legalization Program.--
Beginning not later than the first day of the application period
described in subsection (a)(1)(A), the Attorney General, in cooperation
with qualified designated entities, shall broadly disseminate
information respecting the benefits which aliens may receive under this
section and the requirements to obtain such benefits.''.
(b) Clerical Amendment.--The table of contents of such Act is
amended by inserting after the item relating to section 245A the
following new item:

``Sec. 245B. Adjustment of status of certain long-term resident workers
and college-bound students to that of alien
lawfully admitted for permanent
residence.''.

SEC. 3. FAMILY UNIFICATION.

Section 201(c)(2) of the Immigration and Nationality Act (8 U.S.C.
1151(c)(2)) is amended by striking ``the sum of the number of aliens
described in subparagraphs (A) and (B) of subsection (b)(2)'' and
inserting ``the number of aliens described in subsection (b)(2)(B)''.
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