[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4885 Introduced in House (IH)]
108th CONGRESS
2d Session
H. R. 4885
To amend the Immigration and Nationality Act to reunify families,
permit earned access to permanent resident status, provide protection
against unfair immigration-related employment practices, reform the
diversity visa program, provide adjustment of status for Haitians and
Liberian nationals, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
July 21, 2004
Ms. Jackson-Lee of Texas (for herself, Mr. Conyers, Ms. Lee, Mr. Clay,
Mr. Rush, Mr. Towns, Mr. Meek of Florida, Mr. Payne, Ms. Corrine Brown
of Florida, Mr. Owens, Mrs. Christensen, Mr. Hastings of Florida, Ms.
Norton, Ms. Waters, Ms. Kilpatrick, Mr. Lewis of Georgia, Mr. Fattah,
Mr. Meeks of New York, Mr. Cummings, Ms. Millender-McDonald, Ms.
Schakowsky, Mr. Jackson of Illinois, Mr. Davis of Alabama, Mr. Ortiz,
Mr. Hinojosa, Mr. Grijalva, Mr. Reyes, Mr. Becerra, Ms. Linda T.
Sanchez of California, and Mr. Filner) introduced the following bill;
which was referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To amend the Immigration and Nationality Act to reunify families,
permit earned access to permanent resident status, provide protection
against unfair immigration-related employment practices, reform the
diversity visa program, provide adjustment of status for Haitians and
Liberian nationals, 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 ``Comprehensive Immigration Fairness
Act''.
TITLE I--FAMILY REUNIFICATION AND DISCRETIONARY RELIEF
SEC. 101. PERMANENT APPLICATION OF SECTION 245(I).
Section 245(i) of the Immigration and Nationality Act (8 U.S.C.
1255(i)) is amended--
(1) by inserting ``and'' at the end of paragraph (1)(A);
(2) by amending paragraph (1)(B) to read as follows:
``(B) who is the beneficiary (including a spouse or
child of the principal alien) of--
``(i) a petition for classification under
section 204; or
``(ii) an application for a labor
certification under section 212(a)(5)(A);'';
(3) by striking paragraph (1)(C); and
(4) by striking ``Attorney General'' each place such term
appears and inserting ``Secretary of Homeland Security''.
SEC. 102. DISCRETIONARY WAIVER OF INADMISSIBILITY BASED ON UNLAWFUL
PRESENCE, FAILURE TO ATTEND REMOVAL PROCEEDINGS, AND
MISREPRESENTATIONS.
(a) In General.--Section 212(i) of the Immigration and Nationality
Act (8 U.S.C. 1182(i)) is amended to read as follows:
``(i) The Secretary of Homeland Security may waive the application
of subparagraph (A)(i) or (B), or clause (i) or (ii) of subparagraph
(C), of subsection (a)(6) in the case of an immigrant who is the
parent, spouse, son, or daughter of a United States citizen or of an
alien lawfully admitted to the United States for permanent residence,
if it is established to the satisfaction of the Secretary that the
refusal of admission to the United States of such immigrant would
result in hardship to the immigrant or to such citizen or lawful
permanent resident parent, spouse, son, or daughter.''.
(b) Conforming Amendments.--Section 212(a)(6) of such Act (8 U.S.C.
1182(a)(6)) is amended--
(1) in subparagraph (A), by adding at the end the
following:
``(iii) Waiver authorized.--For a provision
authorizing the waiver of clause (i), see
subsection (i).'';
(2) in subparagraph (B)--
(A) by inserting ``(i)'' after the subparagraph
heading; and
(B) by adding at the end the following:
``(ii) Waiver authorized.--For a provision
authorizing the waiver of clause (i), see
subsection (i).''; and
(3) in subparagraph (C)(iii), by inserting ``or (ii)''
after ``(i)''.
SEC. 103. GENERAL WAIVER FOR ALIENS PREVIOUSLY REMOVED AND FOR THE
UNLAWFUL PRESENCE BARS.
(a) In General.--Section 212(d) of the Immigration and Nationality
Act (8 U.S.C. 1182(d)) is amended by adding at the end the following:
``(14) The Secretary of Homeland Security may, in the discretion of
the Secretary, for humanitarian purposes, to assure family unity, or
when it is otherwise in the public interest, waive the application of
subparagraph (A) or (B)(i) of subsection (a)(9).''.
(b) Conforming Amendment.--Section 212(a)(9)(B) of such Act (8
U.S.C. 1182(a)(9)(B)) is amended by striking clause (v).
SEC. 104. ADDRESSING THE PROBLEM OF VISA NUMBER BACKLOGS FOR THE FAMILY
MEMBERS OF CITIZENS AND LAWFUL PERMANENT RESIDENTS.
(a) Classes of Nonimmigrant Aliens.--Section 101(a)(15)(K) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(K)) is amended--
(1) by striking ``or'' at the end of clause (ii);
(2) by adding ``or'' at the end of clause (iii); and
(3) by adding at the end the following:
``(iv)(I) has concluded a valid marriage
with an alien lawfully admitted for permanent
residence, is the parent of a citizen of the
United States, or is the son or daughter of an
alien lawfully admitted for permanent residence
or a citizen of the United States; (II) is the
beneficiary of a petition to accord immigrant
status on the basis of such family relationship
that was filed under section 204 by such family
member; (III) has waited more than 6 months for
the approval of such petition or the
availability to the alien of an immigrant visa;
and (IV) seeks to enter the United States to
await the approval of such petition and the
availability to the alien of an immigrant
visa;''.
(b) Admission of Nonimmigrants.--Section 214(d) of such Act (8
U.S.C. 1184(d)) is amended--
(1) by striking ``(d)'' and inserting ``(d)(1)''; and
(2) by adding at the end the following:
``(2) A visa shall not be issued under the provisions of section
101(a)(15)(K)(iv) until the consular officer has received a petition
filed in the United States by the lawful permanent resident or citizen
relative of the applying alien and approved by the Secretary of
Homeland Security. The petition shall be in such form and contain such
information as the Secretary shall, by regulation, prescribe.''.
SEC. 105. WAIVER OF AGGRAVATED FELONY CONSEQUENCES.
Section 101 of the Immigration and Nationality Act (8 U.S.C. 1101)
is amended by adding at the end the following:
``(j) For purposes of this Act, and notwithstanding subsection
(a)(43), the Secretary of Homeland Security may treat any conviction
that did not result in incarceration for more than 1 year as if such
conviction were not a conviction for an aggravated felony. This
discretion may be exercised for humanitarian purposes, to assure family
unity, or when it is otherwise in the public interest.''.
SEC. 106. AGE-OUT PROTECTION FOR CHILDREN.
(a) In General.--Chapter 1 of title IV of the Immigration and
Nationality Act (8 U.S.C. 1101 note) is amended by adding at the end
the following:
``age-out protection for children
``Sec. 408. (a) In General.--In the case of an application
initially to grant a benefit under this Act (other than an application
for naturalization) that otherwise would be granted only after a
determination that the beneficiary of the application is a child (such
as classification as an immediate relative under section
201(b)(2)(A)(i)), if the application is neither approved nor denied (on
procedural or substantive grounds) during the 90-day period beginning
on the date of the filing of the application, the beneficiary shall be
considered to be a child for all purposes related to the receipt of the
benefit if the beneficiary was a child on the last day of such 90-day
period, and the beneficiary shall not otherwise be prejudiced with
respect to such determination by such delay, and shall be considered to
be a child under this Act for all purposes related to such application.
``(b) Termination of Benefit.--Subsection (a) shall remain in
effect until the termination of the 1-year period beginning on the date
on which the application described in such paragraph is approved.''.
(b) Clerical Amendment.--The table of contents for the Immigration
and Nationality Act is amended by inserting after the item relating to
section 407 the following:
``408. Age-out protection for children.''.
SEC. 107. TIMELINESS OF ADOPTION FOR IMMIGRATION PURPOSES.
(a) In General.--Section 101(b)(1)(E)(i) of the Immigration and
Nationality Act (8 U.S.C. 1101(b)(1)(E)(i)) is amended by striking ``a
child adopted while under the age of sixteen years'' and inserting ``a
child, under the age of 16 when adoption proceedings were initiated,''.
(b) Special Rule for Siblings.--Section 101(b)(1)(E)(ii)(III) of
such Act (8 U.S.C. 1101(b)(1)(E)(ii)(III)) is amended by striking
``adopted while under the age of 18 years'' and inserting ``under the
age of 18 when adoption proceedings were initiated''.
SEC. 108. DISCRETIONARY WAIVER TO ADMIT PERSONS IN UNUSUAL
CIRCUMSTANCES.
(a) New General Waiver.--Section 212(d) of the Immigration and
Nationality Act (8 U.S.C. 1182(d)) is amended by adding at the end the
following:
``(13) The Secretary of Homeland Security may, in the
discretion of such Secretary for humanitarian purposes, to
assure family unity, or when it is otherwise in the public
interest, waive the application of subparagraph (B) or (G) of
subsection (a)(6), clause (i) or (ii) of subsection (a)(9)(A),
or subsection (a)(9)(B)(i), in unusual circumstances. For
purposes of the preceding sentence, an instance of battering or
extreme cruelty is deemed to constitute unusual circumstances
in the case where it is inflicted on an alien (or a child of an
alien) by the alien's United States citizen or lawful permanent
resident spouse, parent, child, son, or daughter.''.
(b) Waiver for Aliens Previously Removed.--
(1) Certain aliens previously removed.--Section
212(a)(9)(A) of such Act (8 U.S.C. 1182(a)(9)(A)) is amended by
adding at the end the following:
``(iv) Waiver authorized.--For provision
authorizing waiver of clause (i) or (ii), see
subsection (d)(13).''.
(2) Aliens unlawfully present.--Section 212(a)(9)(B)(v) of
such Act (8 U.S.C. 1182(A)(9)(B)(v)) is amended to read as
follows:
``(v) Waiver authorized.--For provision
authorizing waiver of clause (i), see
subsection (d)(13).''.
TITLE II--EARNED ACCESS TO LEGALIZATION AND REGISTRY UPDATE
SEC. 201. ADJUSTMENT OF STATUS ON THE BASIS OF EARNED ACCESS TO
LEGALIZATION.
(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 on the basis of earned access to legalization
``Sec. 245B. (a) In General.--The Secretary of Homeland Security
may adjust the status of an alien to that of an alien lawfully admitted
for permanent residence if the alien--
``(1) was physically present in the United States for a
continuous period of not less than 5 years immediately
preceding the date on which this provision was enacted and has
maintained continuous physical presence since then;
``(2) has at all times been a person of good moral
character;
``(3) has never been convicted of a criminal offense in the
United States;
``(4) in the case of an alien who is 18 years of age or
older, but who is not over the age of 65, has successfully
completed a course on reading, writing, and speaking words in
ordinary usage in the English language, unless unable to do so
on account of physical or developmental disability or mental
impairment;
``(5) in the case of an alien 18 years of age or older, has
accepted the values and cultural life of the United States; and
``(6) in the case of an alien 18 years of age or older, has
performed at least 40 hours of community service.
``(b) Treatment of Brief, Casual, and Innocent Absences.--An alien
shall not be considered to have failed to maintain a continuous
presence in the United States for purposes of subsection (a)(1) by
virtue of brief, casual, and innocent absences from the United States.
``(c) Admissible as Immigrant.--
``(1) In general.--The alien shall establish that the alien
is admissible to the United States as immigrant, except as
otherwise provided in paragraph (2).
``(2) Exceptions.--The provisions of paragraphs (5),
(6)(A), (6)(B), (6)(C), (6)(F), (6)(G), (7)(A), (9)(B), and
(9)(C)(i)(I) of section 212(a) shall not apply in the
determination of an alien's admissibility under this section.
``(d) Security and Law Enforcement Clearances.--The alien, if over
15 years of age, shall submit fingerprints in accordance with
procedures established by the Secretary of Homeland Security. Such
fingerprints shall be submitted to relevant Federal agencies to be
checked against existing databases for information relating to
criminal, national security, or other law enforcement actions that
would render the alien ineligible for adjustment of status under this
section. The Secretary of Homeland Security shall provide a process for
challenging the accuracy of matches that result in a finding of
ineligibility for adjustment of status.
``(e) Inapplicability of Numerical Limitations.--When an alien is
granted lawful permanent resident status under this subsection, the
number of immigrant visas authorized to be issued under any provision
of this Act shall not be reduced. The numerical limitations of sections
201 and 202 shall not apply to adjustment of status under this section.
``(f) Termination of Proceedings.--The Secretary of Homeland
Security may terminate removal proceedings without prejudice pending
the outcome of an alien's application for adjustment of status under
this section on the basis of a prima facie showing of eligibility for
relief under this section.''.
(b) Clerical Amendment.--The table of contents for the Immigration
and Nationality Act is amended by inserting after the item relating to
section 245A the following:
``245B. Adjustment of status on the basis of earned access to
legalization.''.
SEC. 202. AUTHORITY TO ADJUST STATUS OF CERTAIN CHILDREN.
(a) In General.--Chapter 5 of title II of the Immigration and
Nationality Act (8 U.S.C. 1255 et seq.), as amended by section 201, is
further amended further by inserting after section 245B the following:
``adjustment of status for certain children
``Sec. 245C. (a) In General.--The Secretary of Homeland Security
may adjust the status of an alien to that of an alien lawfully admitted
for permanent residence if the alien is a child at the time of filing
the application for such adjustment and establishes that the alien, at
such time--
``(1) has been physically present and enrolled in school in
the United States for a continuous period of not less than 5
years immediately preceding the date of such application, and
during that period has been a person of good moral character;
``(2) has fully integrated into life in the United States;
``(3) has learned English or is satisfactorily pursuing a
course of study to achieve an understanding of English;
``(4) is successfully pursuing an elementary school, middle
school, high school, or college-level education; and
``(5) if older than 13 years of age, has performed at least
60 hours of community service.
``(b) Treatment of Brief, Casual, and Innocent Absences.--An alien
shall not be considered to have failed to maintain a continuous
presence in the United States for purposes of subsection (a)(1) by
virtue of brief, casual, and innocent absences from the United States.
``(c) Admissible as Immigrant.--
``(1) In general.--The alien shall establish that the alien
is admissible to the United States as an immigrant, except as
otherwise provided in paragraph (2).
``(2) Applicability of certain provisions.--
``(A) Grounds of inadmissibility not applied.--The
provisions of paragraphs (5), (6)(A), (6)(B), (6)(C),
(6)(F), (6)(G), (7)(A), (9)(B), and (9)(C) of section
212(a) shall not apply in the determination of an
alien's admissibility under this section.
``(B) Waiver of other grounds.--
``(i) In general.--Except as provided in
clause (ii), the Secretary of Homeland Security
may waive any other provision of section 212(a)
in the case of an individual alien 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 Secretary 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).
``(d) No Numerical Limitations.--The numerical limitations of
sections 201 and 202 shall not apply to adjustment of status under this
section.
``(e) Confidentiality of Information.--Except as provided in this
section, neither the Secretary of Homeland Security, nor any other
official or employee of the Department of Homeland Security, may--
``(1) use information furnished by applicant for an
application filed under this section for any purpose other than
to make a determination on the application;
``(2) make any publication whereby the information
furnished by any particular applicant can be identified; or
``(3) permit anyone other than the sworn officers and
employees of the Department, the applicant, or a representative
of the applicant to examine individual applications.
``(f) Dissemination of Information.--The Secretary of Homeland
Security 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 for the Immigration
and Nationality Act, as amended by section 201, is amended further by
inserting after the item relating to section 245B the following:
``245C. Adjustment of status for certain children.''.
SEC. 203. RECORD OF ADMISSION FOR PERMANENT RESIDENCE IN THE CASE OF
CERTAIN ALIENS.
(a) In General.--Section 249 of the Immigration and Nationality Act
(8 U.S.C. 1259) is amended--
(1) in the section heading by striking ``1972'' and
inserting ``1986''; and
(2) in paragraph (a), by striking ``1972'' and inserting
``1986''.
(b) Clerical Amendment.--The table of sections is amended in the
item relating to section 249 by striking ``1972'' and inserting
``1986''.
TITLE III--EMPLOYEE PROTECTIONS
SEC. 301. UNFAIR IMMIGRATION-RELATED EMPLOYMENT PRACTICES.
Section 274B of the Immigration and Nationality Act (8 U.S.C.
1324b) is amended--
(1) in subsection (a)(5)--
(A) by amending the paragraph heading to read
``Prohibition of intimidation, retaliation, or unlawful
discrimination in employment'';
(B) by moving the text down and to the right 2 ems;
(C) by inserting before such text the following:
``(A) In general.--''; and
(D) by adding at the end the following:
``(B) Federal labor or employment laws.--It is an
unfair employment practice for any employer to directly
or indirectly threaten any individual with removal or
any other adverse consequences pertaining to that
individual's immigration status or employment benefits
for the purpose of intimidating, pressuring, or
coercing any such individual not to exercise any right
protected by state or federal labor or employment law
(including section 7 of the National Labor Relations
Act (29 U.S.C. 157)), or for the purpose of retaliating
against any such individual for having exercised or
having stated an intention to exercise any such right.
``(C) Discrimination based on immigration status.--
It is an unfair employment practice for any employer,
except to the extent specifically authorized or
required by law, to discriminate in any term or
condition of employment against any individual employed
by such employer on the basis of such individual's
immigration status.''; and
(2) in subsection (c)(2), by adding at the end the
following: ``The Special Counsel shall not disclose to the
Secretary of Homeland Security or any other government agency
or employee, and shall not cause to be published in a manner
that discloses to the Secretary of Homeland Security or any
other government agency or employee, any information obtained
by the Special Counsel in any manner concerning the immigration
status of any individual who has filed a charge under this
section, or the identity of any individual or entity that is a
party or witness to a proceedings brought pursuant to such
charge. The Secretary of Homeland Security may not rely, in
whole or in part, in any enforcement action or removal
proceeding, upon any information obtained as a result of the
filing or prosecution of an unfair immigration-related
employment practice charge. For purposes of this paragraph, the
term `Special Counsel' includes individuals formerly appointed
to the position of Special Counsel and any current or former
employee of the office of the Special Counsel. Whoever
knowingly uses, publishes, or permits information to be used in
violation of this paragraph shall be fined not more than
$10,000''.
SEC. 302. DEPARTMENT OF LABOR TASK FORCE.
The Secretary of Labor, in consultation with the Attorney General
and the Secretary of Homeland Security, shall conduct a national study
of American workplaces to determine the causes, extent, circumstances,
and consequences, of exploitation of undocumented alien workers by
their employers. As part of this study, the Secretary of Labor shall
create a plan for targeted review of federal labor law enforcement in
industries with a substantial immigrant workforce, for the purpose of
identifying, monitoring, and deterring frequent or egregious violators
of wage and hour, anti-discrimination, National Labor Relations Act,
and workplace safety and health requirements. Not later than 18 months
after the date of the enactment of this Act, the Secretary of Labor
shall submit to the Congress a report describing the results of the
study and the Secretary's recommendations based on the study.
SEC. 303. RECRUITMENT OF AMERICAN WORKERS.
Section 214 of the Immigration and Nationality Act is amended--
(1) by redesignating subsections (m) (as added by section
105 of Public Law 106-313), (n) (as added by section 107(e) of
Public Law 106-386), (o) (as added by section 1513(c) of Public
Law 106-386), (o) (as added by section 1102(b) of the Legal
Immigration Family Equity Act), and (p) (as added by section
1503(b) of the Legal Immigration Family Equity Act) as
subsections (n), (o), (p), (q), and (r), respectively; and
(2) by adding at the end the following:
``(s)(1) No petition to accord employment status under any
nonimmigrant classification described in section 101(a)(15) shall be
granted in the absence of an affidavit from the petitioner describing
the efforts that were made to recruit an alien lawfully admitted for
permanent residence or a citizen of the United States before resorting
to a petition to obtain a foreign employee. The recruitment efforts
must have included substantial attempts to find employees in minority
communities. Recruitment efforts in minority communities should include
at least one of the following, if appropriate for the employment being
advertised:
``(A) Advertise the availability of the job opportunity for
which the employer is seeking a worker in local newspapers in
the labor market that is likely to be patronized by a potential
worker for at least 5 consecutive days.
``(B) Undertake efforts to advertise the availability of
the job opportunity for which the employer is seeking a worker
through advertisements in public transportation systems.
``(C) To the extent permitted by local laws and
regulations, engage in recruitment activities in secondary
schools, recreation centers, community centers, and other
places throughout the communities within 50 miles of the job
site that serve minorities.
``(2)(A) The Secretary of Homeland Security shall impose a 10
percent surcharge on all fees collected for petitions to accord
employment status and shall use these funds to establish an employment
training program which will include unemployed workers in the United
States who need to be trained or retrained. The purpose of this program
shall be to increase the number of lawful permanent residents and
citizens of the United States who are available for employment in the
occupations that are the subjects of such petitions. At least 50
percent of the funds generated by this provision must be used to train
American workers in rural and inner city areas.
``(B) The Secretary of Homeland Security shall reserve and make
available to the Secretary of Labor a portion of the funds collected
under this paragraph. Such funds shall be used by the Secretary of
Labor to establish an `Office to Preserve American Jobs' within the
Department of Labor. The purpose of this office shall be to establish
policies intended to ensure that employers in the United States will
hire available workers in the United States before resorting to foreign
labor, giving substantial emphasis to hiring minority workers in the
United States.''.
TITLE IV--DIVERSITY VISAS
SEC. 401. INCREASE IN WORLDWIDE LEVEL OF DIVERSITY IMMIGRANTS.
Section 201(e) of the Immigration and Nationality Act (8 U.S.C.
1151(e)) is amended by striking ``55,000'' and inserting ``110,000''.
SEC. 402. PERIOD DESIGNATED FOR APPLICATION.
Section 203(e)(1) of the Immigration and Nationality Act (8 U.S.C.
1153(e)(1)) is amended--
(1) by striking ``Attorney General'' each place such term
appears and and inserting ``Secretary of Homeland Security'';
and
(2) by adding at the end the following: ``The Secretary
shall provide for a filing system that will permit unlimited
filing throughout the entire period designated for the filing
of petitions. If an electronic filing system is chosen, the
Secretary shall ensure that the computer equipment and software
used to accept the filed petitions will have the capacity to
accept every application that is submitted during the period
designated for filing the petitions. In the event that
petitions submitted during the designated period are rejected,
the designated period will be extended for an additional 10-day
period.''
TITLE V--HAITIAN PARITY
SEC. 501. ADJUSTMENT OF STATUS FOR HAITIANS.
(a) In General.--Chapter 5 of title II of the Immigration and
Nationality Act (8 U.S.C. 1255 et seq.), as amended by section 202, is
further amended by inserting after section 245C the following:
``adjustment of status of certain haitian nationals
``Sec. 245D. Notwithstanding the provisions of section 245(c), the
status of any alien who is a national or citizen of Haiti, and who has
been physically present in the United States for at least one year, may
be adjusted by the Secretary of Homeland Security, in the Secretary's
discretion and under such regulations as the Secretary may prescribe,
to that of an alien lawfully admitted for permanent residence, if the
alien makes an application for such adjustment and the alien is
eligible to receive an immigrant visa and is admissible to the United
States for permanent residence. Upon approval of such an application
for adjustment of status, the Secretary shall create a record of the
alien's admission for permanent residence as of a date 30 months prior
to the filing of such an application or the date of the alien's last
arrival into the United States, whichever date is later. The provisions
of this Act shall be applicable to the spouse and child of any alien
described in this section, regardless of their citizenship and place of
birth, if the spouse or child is residing with such alien in the United
States.''.
(b) Clerical Amendment.--The table of contents for the Immigration
and Nationality Act, as amended by section 202, is further amended by
inserting after the item relating to section 245C the following:
``Sec. 245D. Adjustment of status of certain Haitian nationals.''.
(c) Sunset.--The amendments made by this section shall cease to be
effective on the date that is 3 years after the date of the enactment
of this Act.
SEC. 502. LIMITATION OF ATTORNEY GENERAL'S BOND DISCRETION.
Section 236 of the Immigration and Nationality Act (8 U.S.C. 1226)
is amended by adding at the end the following:
``(f) Exercise of Authority for Arrest, Detention, and Release.--
The Secretary of Homeland Security shall exercise the discretion
afforded under subsection (a) on a case-by-case basis. If bond is to be
denied on the ground that the alien's release would give rise to
adverse consequences for national security or national immigration
policy, the finding of such adverse consequences shall be based on
circumstances pertaining to the individual alien whose release is being
considered.''.
SEC. 503. ELIMINATION OF MANDATORY DETENTION IN EXPEDITED REMOVAL
PROCEEDINGS.
Section 235(b)(1)(B)(iii)(IV) of the Immigration and Nationality
Act (8 U.S.C. 1225(b)(1)(B)(iii)(IV)) is amended to read as follows:
``(IV) Detention.--Aliens subject
to the procedures under this clause
shall be detained in accordance with
section 236.''.
SEC. 504. AMENDMENTS TO HAITIAN AND IMMIGRANT FAIRNESS ACT OF 1998.
(a) Ground for Inadmissibility for Document Fraud Does not Apply.--
The Haitian Refugee Immigration Fairness Act of 1998 (8 U.S.C. 1255
note) is amended in subsections (a)(1)(B) and (d)(1)(D) of section 902
by inserting ``(6)(C)(i),'' after ``(6)(A),''.
(b) Determinations With Respect to Children.--Section 902(d) of
such Act is amended by adding at the end the following:
``(3) Determinations with respect to children.--
``(A) Use of application filing date.--
Determinations made under this subsection as to whether
an individual is a child of a parent shall be made
using the age and status of the individual on the date
of the enactment of this section.
``(B) Application submission by parent.--
Notwithstanding paragraph (1)(C), an application under
this subsection filed based on status as a child may be
filed for the benefit of such child by a parent or
guardian of the child, if the child is physically
present in the United States on such filing date.''.
SEC. 505. NEW APPLICATIONS AND MOTIONS TO REOPEN.
(a) New Applications.--Notwithstanding section 902(a)(1)(A) of the
Haitian and Immigrant Fairness Act of 1998, an alien who is eligible
for adjustment of status under such Act, as amended by section 504 of
this Act, may submit an application for adjustment of status under such
Act not later than the later of--
(1) 2 years after the date of the enactment of this Act;
and
(2) 1 year after the date on which final regulations
implementing section 504 are promulgated.
(b) Motions to Reopen.--The Secretary of Homeland Security shall
establish procedures for the reopening and reconsideration of
applications for adjustment of status under the Haitian Refugee
Immigration Fairness Act of 1998 that are affected by the amendments
under section 504 of this Act.
(c) Relationship of Application to Certain Orders.--Section
902(a)(3) of the Haitian and Immigrant Fairness Act of 1998 shall apply
to an alien present in the United States who has been ordered excluded,
deported, removed, or ordered to depart voluntarily, and who files an
application under subsection (a), or a motion under subsection (b), in
the same manner as such section 902(a)(3) applied to aliens filing
applications for adjustment of status under such Act before April 1,
2000.
SEC. 506. SENSE OF CONGRESS REGARDING TEMPORARY PROTECTED STATUS FOR
HAITIANS.
It is the sense of the Congress that the Secretary of Homeland
Security should be more liberal with respect to Haiti in deciding
whether to designate that country for temporary protected status under
section 244(b)(1)(A) of the Immigration and Nationality (8 U.S.C.
1254(b)(1)(A)). It is the sense of the Congress that this decision has
sometimes been made without due regard to the serious threat to
personal safety that results from sending Haitians back to Haiti during
a period of ongoing armed conflict in that country.
TITLE VI--LIBERIAN REFUGEE RELIEF
SEC. 601. ADJUSTMENT OF STATUS OF CERTAIN LIBERIAN NATIONALS.
(a) Adjustment of Status.--
(1) In general.--Notwithstanding section 245(c) of the
Immigration and Nationality Act, the status of any alien
described in subsection (b) shall be adjusted by the Secretary
of Homeland Security to that of an alien lawfully admitted for
permanent residence, if the alien--
(A) applies for such adjustment before April 1,
2005; and
(B) is otherwise eligible to receive an immigrant
visa and is otherwise admissible to the United States
for permanent residence, except in determining such
admissibility the grounds for inadmissibility specified
in paragraphs (4), (5), (6)(A), and (7)(A) of section
212(a) of the Immigration and Nationality Act shall not
apply.
(2) Relationship of application to certain orders.--An
alien present in the United States who has been ordered
excluded, deported, removed, or ordered to depart voluntarily
from the United States under any provision of the Immigration
and Nationality Act may, notwithstanding such order, apply for
adjustment of status under paragraph (1). Such an alien may not
be required, as a condition on submitting or granting such
application, to file a motion to reopen, reconsider, or vacate
such order. If the Secretary of Homeland Security grants the
application, the Secretary of Homeland Security shall cancel
the order. If the Secretary of Homeland Security renders a
final administrative decision to deny the application, the
order shall be effective and enforceable to the same extent as
if the application had not been made.
(b) Aliens Eligible for Adjustment of Status.--The benefits
provided by subsection (a) shall apply to any alien who--
(1) is a national of Liberia; and
(2)(A) who was granted temporary protected status on or
after March 27, 1991; or
(B) was eligible to apply for temporary protected status on
or after March 27, 1991.
(c) Stay of Removal.--
(1) In general.--The Secretary of Homeland Security shall
provide by regulation for an alien subject to a final order of
deportation or removal or exclusion to seek a stay of such
order based on the filing of an application under subsection
(a).
(2) During certain proceedings.--Notwithstanding any
provision of the Immigration and Nationality Act, the Secretary
of Homeland Security shall not order any alien to be removed
from the United States, if the alien is in exclusion,
deportation, or removal proceedings under any provision of such
Act and raises as a defense to such an order the eligibility of
the alien to apply for adjustment of status under subsection
(a), except where the Secretary of Homeland Security has
rendered a final administrative determination to deny the
application.
(3) Work authorization.--The Secretary of Homeland Security
may authorize an alien who has applied for adjustment of status
under subsection (a) to engage in employment in the United
States during the pendency of such application and may provide
the alien with an ``employment authorized'' endorsement or
other appropriate document signifying authorization of
employment, except that if such application is pending for a
period exceeding 180 days, and has not been denied, the
Secretary of Homeland Security shall authorize such employment.
(d) Adjustment of Status for Spouses and Children.--
(1) In general.--Notwithstanding section 245(c) of the
Immigration and Nationality Act, the status of an alien shall
be adjusted by the Secretary of Homeland Security to that of an
alien lawfully admitted for permanent residence, if--
(A) the alien is a national of Liberia;
(B) the alien is the spouse, child, or unmarried
son or daughter, of an alien whose status is adjusted
to that of an alien lawfully admitted for permanent
residence under subsection (a), except that in the case
of such an unmarried son or daughter, the son or
daughter shall be required to establish that they have
been physically present in the United States for at
least 1 year and is physically present in the United
States on the date the application for such adjustment
is filed;
(C) the alien applies for such adjustment and is
physically present in the United States on the date the
application is filed; and
(D) the alien is otherwise eligible to receive an
immigration visa and is otherwise admissible to the
United States for permanent residence, except in
determining such admissibility the grounds for
exclusion specified in paragraphs (4), (5), (6)(A), and
(7)(A) of section 212(a) of the Immigration and
Nationality Act shall not apply.
(2) Proof of continuous presence.--For purposes of
establishing the period of continuous physical presence
referred to in paragraph (1)(B), an alien shall not be
considered to have failed to maintain continuous physical
presence by reason of an absence, or absences, from the United
States for any periods in aggregate not exceeding 180 days.
(e) Availability of Administrative Review.--The Secretary of
Homeland Security shall provide to applicants for adjustment of status
under subsection (a) the same right to, and procedures for,
administrative review as are provided to--
(1) applicants for adjustment of status under section 245
of the Immigration and Nationality Act; or
(2) aliens subject to removal proceedings under section 240
of such Act.
(f) Limitation on Judicial Review.--A determination by the
Secretary of Homeland Security as to whether the status of any alien
should be adjusted under this section is final and shall not be subject
to review by any court.
(g) No Offset in Number of Visas Available.--When an alien is
granted the status of having been lawfully admitted for permanent
residence pursuant to this section, the Secretary of State shall not be
required to reduce the number of immigrant visas authorized to be
issued under any provision of the Immigration and Nationality Act.
(h) Application of Immigration and Nationality Act Provisions.--
Except as otherwise specifically provided in this section, the
definitions contained in the Immigration and Nationality Act shall
apply in the administration of this section. Nothing contained in this
section shall be held to repeal, amend, alter, modify, effect, or
restrict the powers, duties, functions, or authority of the Secretary
of Homeland Security in the administration and enforcement of such Act
or any other law relating to immigration, nationality, or
naturalization. The fact that an alien may be eligible to be granted
the status of having been lawfully admitted for permanent residence
under this section shall not preclude the alien from seeking such
status under any other provision of law for which the alien may be
eligible.
TITLE VII--FAIRNESS IN ASYLUM AND REFUGEE PROCEEDINGS
SEC. 701. REFUGEE STATUS FOR UNMARRIED SONS AND DAUGHTERS OF REFUGEES.
Section 207(c)(2) of the Immigration and Nationality Act (8 U.S.C.
1157(c)(2)) is amended by adding at the end the following:
``(C) When warranted by unusual circumstances or to
preserve family unity, the Attorney General may, in the
Attorney General's discretion, consider an unmarried
son or daughter of a refugee to be a child of the
refugee for purposes of this paragraph.''.
SEC. 702. ASYLEE STATUS FOR UNMARRIED SONS AND DAUGHTERS OF ASYLEES.
Section 208(b)(3) of the Immigration and Nationality Act (8 U.S.C.
1158(b)(3)) is amended by adding at the end the following:
``(C) When warranted by unusual circumstances or to
preserve family unity, the Attorney General may, in the
Attorney General's discretion, consider an unmarried
son or daughter of an alien who is granted asylum under
this subsection to be a child of the alien for purposes
of this paragraph.''.
SEC. 703. ELIMINATION OF ARBITRARY TIME LIMITS ON ASYLUM APPLICATIONS.
Section 208(a)(2) of the Immigration and Nationality Act (8 U.S.C.
1158(a)(2)) is amended--
(1) by striking subparagraph (B);
(2) in subparagraph (C), by striking ``(D),'' and inserting
``(C),'';
(3) in subparagraph (D)--
(A) by striking ``subparagraphs (B) and (C),'' and
inserting ``subparagraph (B),'';
(B) by striking ``either''; and
(C) by striking ``asylum or extraordinary'' and all
that follows through the period at the end and
inserting ``asylum.''; and
(4) by redesignating subparagraphs (C) and (D) as
subparagraphs (B) and (C), respectively.
SEC. 704. GENDER-BASED PERSECUTION.
(a) Treatment as Refugee.--Section 101(a)(42) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(42)) is amended by adding at the
end the following:
``(C) For purposes of determinations under this
Act, a person who establishes that he or she suffered
persecution in the past, or has a well-founded fear of
persecution, on account of gender shall be considered
to have suffered persecution, or to have a well-founded
fear of persecution, on account of membership in a
particular social group.''.
(b) Restriction on Removal to Country Where Alien Would Be
Threatened.--Section 241(b)(3) of such Act (8 U.S.C. 1231(b)(3)) is
amended by adding at the end the following:
``(C) Gender-based persecution.--For purposes of
determinations under this paragraph, an alien who
establishes that the alien's life or freedom would be
threatened in a country on account of gender shall be
considered to have established that the alien's life or
freedom would be threatened in that country on account
of membership in a particular social group.''.
SEC. 705. ELIMINATION OF ARBITRARY CAP ON PERSONS ELIGIBLE TO ADJUST
STATUS FROM ASYLEES TO LEGAL PERMANENT RESIDENTS.
Section 209(b) of the Immigration and Nationality Act (8 U.S.C.
1159(b)) is amended by striking ``Not more than 10,000 of the'' and all
that follows through ``to adjust'' and inserting ``Subject to a
numerical limitation determined by the President before the beginning
of each fiscal year, the Attorney General may adjust, in the Attorney
General's discretion and under such regulations as the Attorney General
may prescribe,''.
TITLE VIII--TEMPORARY PROTECTED STATUS
SEC. 801. ADJUSTMENT OF STATUS FOR CERTAIN RECIPIENTS OF TEMPORARY
PROTECTED STATUS.
(a) In General.--Section 245 of the Immigration and Nationality Act
(8 U.S.C. 1255) is amended by adding at the end the following:
``(n)(1) If, in the opinion of the Secretary of the Homeland
Security Department, a person granted temporary protected status under
section 244--
``(A) has been physically present in the United States in
that status for a continuous period of at least 5 years;
``(B) has at all times been a person of good moral
character;
``(C) has never been convicted of a criminal offense in the
United States;
``(D) in the case of an alien who is 18 years of age or
older, but who is not over the age of 65, has successfully
completed a course on reading, writing, and speaking words in
ordinary usage in the English language, unless unable to do so
on account of physical or developmental disability or mental
impairment;
``(E) in the case of an alien 18 years of age or older, has
accepted the values and cultural life of the United States; and
``(F) in the case of an alien 18 years of age or older, has
performed at least 40 hours of community service;
the Secretary may adjust the status of the alien to that of an alien
lawfully admitted for permanent residence.
``(2) An alien shall not be considered to have failed to maintain a
continuous presence in the United States for purposes of subsection
(a)(1) by virtue of brief, casual, and innocent absences from the
United States.
``(3)(A) The alien shall establish that the alien is admissible to
the United States as immigrant, except as otherwise provided in
paragraph (2).
``(B) The provisions of paragraphs (5), (6)(A), (6)(B), (6)(C),
(6)(F), (6)(G), (7)(A), (9)(B), and (9)(C)(i)(I) of section 212(a)
shall not apply in the determination of an alien's admissibility under
this section.
``(4) When an alien is granted lawful permanent resident status
under this subsection, the number of immigrant visas authorized to be
issued under any provision of this Act shall not be reduced. The
numerical limitations of sections 201 and 202 shall not apply to
adjustment of status under this section.
``(5) The Secretary of Homeland Security may terminate removal
proceedings without prejudice pending the outcome of an alien's
application for adjustment of status under this section on the basis of
a prima facie showing of eligibility for relief under this section.''.
(b) Limitation on Consideration in the Senate of Legislation
Adjusting Status.--Section 244 of the Immigration and Nationality Act
(8 U.S.C. 1254a) is amended by striking subsection (h) and
redesignating subsection (i) as subsection (h).
SEC. 802. FOREIGN STATE DESIGNATIONS.
Section 244(b)(1)(C) of the Immigration and Nationality Act (8
U.S.C. 1254a(b)(1)(C)) is amended to change the following phrase ``the
Attorney General finds that there exist extraordinary and temporary
conditions in the foreign state that prevent aliens who are nationals
of the state from returning to the state in safety,'' so that it reads
as follows: ``the Secretary of Homeland Security finds that
extraordinary and temporary conditions in the foreign state make
returning aliens to the state undesirable for humanitarian reasons,''.
SEC. 803. TECHNICAL CORRECTION.
Section 244 of the Immigration and Nationality Act (8 U.S.C. 1254a)
is amended by striking ``Attorney General'' each place such term
appears and inserting ``Secretary of Homeland Security''.
TITLE IX--MISCELLANEOUS PROVISIONS
SEC. 901. PHYSICAL PRESENCE REQUIREMENT.
Section 316(a) of the Immigration and Nationality Act (8 U.S.C.
1427) is amended by adding at the end the following:
``When warranted by extraordinary circumstances, the Secretary of
Homeland Security may reduce, by not more than 90 days, the physical
presence requirement described in the preceding sentence.''.
SEC. 902. ABSENCES FROM THE UNITED STATES.
Section 316(b) of the Immigration and Nationality Act (8 U.S.C.
1427(b)) is amended--
(1) in the first sentence, by striking ``one year'' and
inserting ``18 months''; and
(2) in the second sentence, by striking ``continuous period
of one year'' and inserting ``continuous period of 18 months''.
SEC. 903. ELIMINATING THE WIDOWED IMMIGRANT'S 2-YEAR MARRIAGE PENALTY.
Section 201(b)(2)(A)(i) of the Immigration and Nationality Act (8
U.S.C. 1251(b)(2)(A)(i)) is amended--
(1) by striking ``for at least 2 years''; and
(2) by inserting ``, proves by a preponderance of the
evidence that the marriage was entered into in good faith and
not for the purpose of obtaining an immigration benefit,''
after ``within 2 years after such date''.
SEC. 904. ELIMINATE THE WIDOWED PERMANENT RESIDENT'S NATURALIZATION
PENALTY.
Section 319(a) of the Immigration and Nationality Act (8 U.S.C.
1429(a)) is amended by inserting ``or, if the spouse is deceased, the
spouse was a citizen of the United States,'' after ``(a) Any person
whose spouse is a citizen of the United States,''.
SEC. 905. ELIMINATION OF BAN ON STATE AND LOCAL GOVERNMENTS FROM
PREVENTING COMMUNICATIONS WITH THE DEPARTMENT OF HOMELAND
SECURITY.
(a) In General.--Section 642 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (8 U.S.C. 1373) is repealed.
(b) Verification of Eligibility for Federal Public Benefits.--
Section 432 of the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 (8 U.S.C. 1642) is repealed.
SEC. 906. ELIMINATION OF AUTHORITY TO PERMIT STATE PERSONNEL TO CARRY
OUT IMMIGRATION OFFICER FUNCTIONS.
Section 287(g) of the Immigration and Nationality Act (8 U.S.C.
1357(g)) is repealed.
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