I
109th CONGRESS
1st Session
H. R. 2092
IN THE HOUSE OF REPRESENTATIVES
May 4, 2005
Ms. Jackson-Lee of Texas introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committees on Ways and Means, Energy and Commerce, Agriculture, Homeland Security, and Financial Services, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
A BILL
To amend the Immigration and Nationality Act to comprehensively reform immigration law and to better protect immigrant victims of violence, and for other purposes.
Short title; references to Act
Short title
This Act may be cited as the Save America Comprehensive Immigration Act of 2005
.
References to the Immigration and Nationality Act
Except as otherwise expressly provided, whenever in this Act an amendment or repeal is expressed in terms of an amendment to, or repeal of, a section or other provision, the reference shall be considered to be made to a section or other provision of the Immigration and Nationality Act.
Family-based immigration
Increasing the allocation of Family-based Immigrant Visas
Section 201(c)(8 U.S.C. 115(c)) is amended to read as follows:
Worldwide level of family-sponsored immigrants
The worldwide level of family-sponsored immigrants under this subsection for a fiscal year shall be no more than 960,000.
.
Protection against processing delays
Age-out protection for children
In general
Chapter 1 of title IV (8 U.S.C. 1101 note) is amended by adding at the end the following:
Age-out protection for children
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.
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.
.
Clerical amendment
The table of contents is amended by inserting after the item relating to section 407 the following:
Sec. 408. Age-out protection for children
.
Timeliness of adoption for immigration purposes
In general
Section 101(b)(1)(E)(i) (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,
.
Special rule for siblings
Section 101(b)(1)(E)(ii)(III) (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
.
Temporary status pending receipt of permanent resident status
Classes of nonimmigrant aliens
Section 101(a)(15)(K) (8 U.S.C. 1101(a)(15)(K)) is amended—
by striking or
at the end of clause (ii);
by adding or
at the end of clause (iii); and
by adding at the end the following:
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 child, son, or daughter of an alien lawfully admitted for permanent residence or a citizen of the United States; (II) is the beneficiary of an approved petition to accord immigrant status on the basis of such family relationship that was filed under section 204 by such family member; (III) has available to the alien an immigrant visa number; (IV) has waited more than 6 months for the issuance of an immigrant visa based upon an application made by the alien; and (V) seeks to enter the United States to await such issuance;
.
Admission of nonimmigrants
Section 214(d) (8 U.S.C. 1184(d)) is amended—
by striking (d)
and inserting (d)(1)
; and
by adding at the end the following:
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.
.
Elimination of affidavit of support requirement
Grounds for ineligibility for admission
Section 212(a)(4) (8 U.S.C. 1182(a)(4)) is amended—
by amending subparagraph (B)(ii) to read as follows:
If an alien submits an affidavit of support described in section 213A, in addition to the factors under clause (i), the consular officer or the Attorney General shall also consider such affidavit in determining whether the alien is inadmissible under this paragraph.
; and
by striking subparagraphs (C) and (D).
Requirements for sponsor’s affidavit of support
Subsections (a)(1)(A), (f)(1)(E), and (f)(4)(B)(i) of section 213A (8 U.S.C. 1183a(a)(1)(A), (f)(1)(E), and (f)(4)(B)(i)) are amended by striking 125
and inserting 100
.
Acquisition of citizenship for children born abroad and out of wedlock to a United States citizen father
Requirements for citizenship eligibility
Section 309(a) (8 U.S.C. 1409(a)) is amended—
in paragraph (2), by adding and
at the end;
by striking paragraph (3);
in paragraph (4), by striking while the person is under the age of 18 years—
and inserting at any time—
; and
by redesignating paragraph (4) as paragraph (3).
Clarification regarding deceased parents of children born abroad and out of wedlock
Section 309 (8 U.S.C. 1409) is amended by adding at the end the following:
Nothing in this section shall be construed to preclude a person who is a citizen or national of the United States by virtue of a provision of this section from establishing such status under this title after the death of the person’s father, mother, or parents.
.
Application of citizenship provisions
The amendments made by this Act shall apply to persons born out of wedlock who are alive on or after the date of the enactment of this Act.
Allow aunts and uncles or grandparents to adopt orphaned or abandoned children of the deceased relative
Section 101(b) is amended by—
striking or
at the end of subparagraph (E) and inserting a semicolon;
striking the period at the end of subparagraph (F) and inserting ; or
; and
by inserting the following subparagraph:
a child adopted in the United States or abroad or who is coming to the United States for adoption by a grandparent, aunt or uncle while under the age of eighteen years, who has suffered the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents, or for whom the sole or surviving parent is incapable of providing proper care and has consented in writing to the adoption, if the Secretary of Homeland Security is satisfied that proper care will be furnished the child if admitted to the United States. No natural parent or prior adoptive parent of any such child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act. Nothing in this subsection shall be construed to require the child to be released to an orphanage as a prerequisite for eligibility.
.
Eliminating the widowed immigrants 2-year marriage penalty and surviving immediate relatives penalty
Requirements for eliminating widow penalty
Section 201(b)(2)(A)(i) (8 U.S.C. 1151 (b)(2)(A)(i)) is amended—
by striking for at least 2 years
;
by inserting , and if married for less than two years at the time of the citizen’s death proves by a preponderance of the evidence that the marriage was entered into in good faith and not solely for the purpose of obtaining an immigration benefit,
after within 2 years after such date
; and
by inserting the following sentence after the sentence ending with remarries.
: In the case of an alien who was the child or parent of a citizen of the United States at the time of the citizen’s death, the alien shall be considered, for purposes of this subsection, to remain an immediate relative after the date of the citizen’s death but only if the alien files a petition under section 204(a)(1)(A)(ii), as amended, within two years after such date in the case of a parent, or prior to reaching the age of 21 in the case of a child.
.
Requirements for eliminating surviving immediate relative penalty
Section 204(a)(1)(A)(ii) (8 U.S.C. 1154 (a)(1)(A)(ii)) is amended by inserting or an alien child or alien parent described in the third sentence of section 201(b)(2)(A)(i)
after section 201(b)(2)(A)(i)
.
Transition period
In applying section 201(b)(2)(A)(i) (8 U.S.C. 1154(b)(2)(A)(i)), as amended, in the case of an alien whose citizen relative died before the date of the enactment of this Act, the alien relative may (notwithstanding the deadlines specified in such subsection) file the classification petition referred to in such subsection within 2 years after the date of the enactment of this Act.
Applications for adjustment of status
Section 245 (8 U.S.C. 1255) is amended by adding at the end the following:
Applications for adjustment of status by surviving spouses, children, and parents
In general
Notwithstanding subsections (a) and (c) (except subsection (c)(6)) of section 245 of the Immigration and Nationality Act (8 U.S.C. 1255), any alien described in paragraph (2) who applied for adjustment of status prior to the death of the qualifying relative, may have such application adjudicated as if such death had not occurred.
Alien described
An alien is described in this paragraph if the alien was—
an immediate relative as described in section 201(b)(2)(A)(i);
a family-sponsored immigrant as described in section 203(a) or (d);
a derivative beneficiary of an employment-based immigrant under section 203(b), as described in section 203(d); or
a derivative beneficiary of a diversity immigrant as described in section 203(c).
.
Transition Period
Notwithstanding a prior denial of an application for adjustment of status, in the case of an alien whose qualifying relative died before the date of the enactment of this Act, such application may be renewed by the alien through a motion to reopen, without fee, filed within two years after the date of the enactment of this Act. In the case of an alien who was deported, removed, or departed voluntarily before the date of the enactment of this Act, such alien shall be eligible for parole into the United States pursuant to the Attorney General’s authority under section 212(d)(5), and such alien’s application for adjustment of status shall be considered notwithstanding section 212(a)(9).
Eliminating the widowed permanent resident’s naturalization penalty
Section 319(a) (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,
.
Legalization for long-term residents
Earned access to legalization
In general
Chapter 5 of title II (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
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—
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;
has at all times been a person of good moral character;
has never been convicted of a criminal offense in the United States;
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;
in the case of an alien 18 years of age or older, has accepted the values and cultural life of the United States; and
in the case of an alien 18 years of age or older, has performed at least 40 hours of community service.
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.
Admissible as immigrant
In general
The alien shall establish that the alien is admissible to the United States as immigrant, except as otherwise provided in paragraph (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.
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.
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.
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.
.
Clerical amendment
The table of contents is amended by inserting after the item relating to section 245A the following:
Sec. 245B. Adjustment of status on the basis of earned access to legalization
.
Legalization provisions for children
In general
Chapter 5 of title II (8 U.S.C. 1255 et seq.), as amended by section 201, is further amended by inserting after section 245B the following:
Adjustment of status for certain children
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—
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;
has fully integrated into life in the United States;
has learned English or is satisfactorily pursuing a course of study to achieve an understanding of English;
is successfully pursuing an elementary school, middle school, high school, or college-level education; and
if older than 13 years of age, has performed at least 60 hours of community service.
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.
Admissible as immigrant
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).
Applicability of certain provisions
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.
Waiver of other grounds
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.
Grounds that may not be waived
The following provisions of section 212(a) may not be waived by the Secretary under clause (i):
Paragraphs (2)(A) and (2)(B) (relating to criminals).
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.
Paragraph (3) (relating to security and related grounds).
No numerical limitations
The numerical limitations of sections 201 and 202 shall not apply to adjustment of status under this section.
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—
use information furnished by applicant for an application filed under this section for any purpose other than to make a determination on the application;
make any publication whereby the information furnished by any particular applicant can be identified; or
permit anyone other than the sworn officers and employees of the Department, the applicant, or a representative of the applicant to examine individual applications.
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.
.
Clerical amendment
The table of contents, as amended by section 201, is amended further by inserting after the item relating to section 245B the following:
Sec. 245C. Adjustment of status for certain children
.
Updated registry provision
In general
Section 249 (8 U.S.C. 1259) is amended—
in the section heading by striking 1972
and inserting 1986
; and
in paragraph (a), by striking 1972
and inserting 1986
.
Clerical amendment
The table of sections is amended in the item relating to section 249 by striking 1972
and inserting 1986
.
Border security provisions
Increase the number of inspectors at airport and land border inspection stations
In each of the fiscal years 2007 through 2011, the Secretary of Homeland Security shall, subject to the availability of appropriations for such purpose, increase by not less than 1,000 the number of positions for full-time active duty immigration inspectors at airport and land border inspection stations within the Department of Homeland Security above the number of such positions for which funds were allotted for the preceding fiscal year.
Establish a special task force for coordinating and distributing information on fraudulent immigration documents
In general
The Secretary of Homeland Security shall establish a task force (to be known as the Task Force on Fraudulent Immigration Documents) to carry out the following:
Collect information from Federal, State and local law enforcement agencies, and Foreign governments on the production, sale, and distribution of fraudulent documents intended to be used to enter or to remain in the United States unlawfully.
Maintain that information in a comprehensive database.
Convert the information into reports that will provide guidance for government officials on identifying fraudulent documents being used to enter or to remain in the United States unlawfully.
Develop a system for distributing these deports on an ongoing basis to appropriate Federal, State and local law enforcement agencies.
Distribution of information
Distribute the reports to appropriate Federal, State and local law enforcement agencies on an ongoing basis.
New nonimmigrant visa classification to enable informants to enter the United States and remain temporarily
In general
Section 101(a)(15)(S) (8 U.S.C. 1101(a)(15)(S)) is amended—
in clause (i), by striking or
at the end;
in clause (ii), by striking the comma at the end and inserting ; or
;
by inserting after clause (ii) the following:
who the Secretary of Homeland Security, the Secretary of State, or the Attorney General determines—
is in possession of critical reliable information concerning a commercial alien smuggling organization or enterprise or a commercial operation for making or trafficking in documents to be used for entering or remaining in the United States unlawfully;
is willing to supply or has supplied such information to a Federal or State court; or
whose presence in the United States the Secretary of Homeland Security, the Secretary of State, or the Attorney General determines is essential to the success of an authorized criminal investigation, the successful prosecution of an individual involved in the commercial alien smuggling organization or enterprise, or the disruption of such organization or enterprise or a commercial operation for making or trafficking in documents to be used for entering or remaining in the United States unlawfully.
;
by inserting , or with respect to clause (iii), the Secretary of Homeland Security, the Secretary of State, or the Attorney General
after jointly
; and
by striking (i) or (ii)
and inserting (i), (ii), or (iii)
.
Admission of nonimmigrants
Section 214(k) (8 U.S.C. 1184(k)) is amended—
by adding at the end of paragraph (1) the following:
The number of aliens who may be provided a visa as nonimmigrants under section 101(a)(15)(S)(iii) in any fiscal year may not exceed 400.
; and
by adding at the end the following:
If the Secretary of Homeland Security, the Secretary of State, or the Attorney General determines that a nonimmigrant described in clause (iii) of section 101(a)(15)(S), or that of any family member of such a nonimmigrant who is provided nonimmigrant status pursuant to such section, must be protected, such official may take such lawful action as the official considers necessary to effect such protection.
.
Adjustment of status when needed to protect informants
Section 245(j) (8 U.S.C. 1255(j)) is amended—
in paragraph (3), by striking (1) or (2),
and inserting (1), (2), (3), or (4),
;
by redesignating paragraph (3) as paragraph (5);
by inserting after paragraph (2) the following:
If, in the opinion of the Secretary of Homeland Security, the Secretary of State, or the Attorney General—
a nonimmigrant admitted into the United States under section 101(a)(15)(S)(iii) has supplied information described in subclause (I) of such section; and
the provision of such information has substantially contributed to the success of a commercial alien smuggling investigation or an investigation of the sale or production of fraudulent documents to be used for entering or remaining in the United States unlawfully, the disruption of such an enterprise, or the prosecution of an individual described in subclause (III) of that section,
The Secretary of Homeland Security may adjust the status of a nonimmigrant admitted into the United States under section 101(a)(15)(S)(iii) (and the spouse, children, married and unmarried sons and daughters, and parents of the nonimmigrant if admitted under that section) to that of an alien lawfully admitted for permanent residence on the basis of a recommendation of the Secretary of State or the Attorney General.
; and
by adding at the end the following:
If the Secretary of Homeland Security, the Secretary of State, or the Attorney General determines that a person whose status is adjusted under this subsection must be protected, such official may take such lawful action as the official considers necessary to effect such protection.
.
Rewards Program
Rewards program
Section 274 (8 U.S.C. 1324) is amended by adding at the end the following:
Rewards program
In general
There is established in the Department of Homeland Security a program for the payment of rewards to carry out the purposes of this section.
Purpose
The rewards program shall be designed to assist in the elimination of commercial operations to produce or sell fraudulent documents to be used for entering or remaining in the United States unlawfully and to assist in the investigation, prosecution, or disruption of a commercial alien smuggling operation.
Administration
The rewards program shall be administered by the Secretary of Homeland Security, in consultation, as appropriate, with the Attorney General and the Secretary of State.
Rewards authorized
In the sole discretion of the Secretary of Homeland Security, such Secretary, in consultation, as appropriate, with the Attorney General and the Secretary of State, may pay a reward to any individual who furnishes information or testimony leading to—
the arrest or conviction of any individual conspiring or attempting to produce or sell fraudulent documents to be used for entering or remaining in the United States unlawfully or to commit an act of commercial alien smuggling involving the transportation of aliens in groups of 10 or more—
in a manner that endangers their lives; or
who present a life-threatening health risk to people in the United States;
the arrest or conviction of any individual committing such an act;
the arrest or conviction of any individual aiding or abetting the commission of such an act;
the prevention, frustration, or favorable resolution of such an act, including the dismantling of an operation to produce or sell fraudulent documents to be used for entering or remaining in the United States, or commercial alien smuggling operations, in whole or in significant part; or
the identification or location of an individual who holds a key leadership position in an operation to produce or sell fraudulent documents to be used for entering or remaining in the United States unlawfully or a commercial alien smuggling operation involving the transportation of aliens in groups of 10 or more—
in a manner that endangers their lives; or
who present a life-threatening health risk to people in the United States.
Authorization of appropriations
There are authorized to be appropriated such sums as may be necessary to carry out this subsection. Amounts appropriated under this paragraph shall remain available until expended.
Ineligibility
An officer or employee of any Federal, State, local, or foreign government who, while in performance of his or her official duties, furnishes information described in paragraph (4) shall not be eligible for a reward under this subsection for such furnishing.
Protection measures
If the Secretary of Homeland Security, the Secretary of State, or the Attorney General determines that an individual who furnishes information or testimony described in paragraph (4), or any spouse, child, parent, son, or daughter of such an individual, must be protected, such official may take such lawful action as the official considers necessary to effect such protection.
Limitations and certification
Maximum amount
No reward under this subsection may exceed $100,000, except as personally authorized by the Secretary of Homeland Security.
Approval
Any reward under this subsection exceeding $50,000 shall be personally approved by the Secretary of Homeland Security.
Certification for payment
Any reward granted under this subsection shall be certified for payment by the Secretary of Homeland Security.
.
Outreach program
Section 274 (8 U.S.C. 1324), as amended by subsection (a), is further amended by adding at the end the following:
Outreach program
The Secretary of Homeland Security, in consultation, as appropriate, with the Attorney General and the Secretary of State, shall develop and implement an outreach program to educate the public in the United States and abroad about—
the penalties for—
bringing in and harboring aliens in violation of this section; and
participating in a commercial operation for making, or trafficking in, documents to be used for entering or remaining in the United States unlawfully; and
the financial rewards and other incentives available for assisting in the investigation, disruption, or prosecution of a commercial smuggling operation or a commercial operation for making, or trafficking in, documents to be used for entering or remaining in the United States unlawfully
.
Employment-based immigration
Unfair immigration-related employment practices
Section 274B (8 U.S.C. 1324b) is amended—
in subsection (a)(5)—
by amending the paragraph heading to read Prohibition of intimidation, retaliation, or unlawful discrimination in employment
;
by moving the text down and to the right 2 ems;
by inserting before such text the following: (A) In general.—
; and
by adding at the end the following:
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.
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
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.
.
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, antidiscrimination, 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.
Recruitment of American workers
Section 214 is amended—
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
by adding at the end the following:
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:
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.
Undertake efforts to advertise the availability of the job opportunity for which the employer is seeking a worker through advertisements in public transportation systems.
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.
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.
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.
.
Removal waivers
Permanent application of Section 245(i)
Section 245(i) (8 U.S.C. 1255(i)) is amended—
by inserting and
at the end of paragraph (1)(A);
by amending paragraph (1)(B) to read as follows:
who is the beneficiary (including a spouse or child of the principal alien) of—
a petition for classification under section 204; or
an application for a labor certification under section 212(a)(5)(A);
;
by striking paragraph (1)(C); and
by striking Attorney General
each place such term appears and inserting Secretary of Homeland Security
.
Discretionary waiver of inadmissibility based on unlawful presence, failure to attend removal proceedings, and misrepresentations
In general
Section 212(i) (8 U.S.C. 1182(i)) is amended to read as follows:
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, child, 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, child, son, or daughter.
.
Conforming amendments
Section 212(a)(6) (8 U.S.C. 1182(a)(6)) is amended—
in subparagraph (A), by adding at the end the following:
Waiver authorized
For a provision authorizing the waiver of clause (i), see subsection (i).
;
in subparagraph (B)—
by inserting (i)
after the subparagraph heading; and
by adding at the end the following:
Waiver authorized
For a provision authorizing the waiver of clause (i), see subsection (i).
; and
in subparagraph (C)(iii), by inserting or (ii)
after (i)
.
Waiver of inadmissibility for minor criminal offenses
Section 212(h) (8 U.S.C. 1182(h)) is amended—
in the matter preceding paragraph (1), by striking offense of simple possession of 30 grams or less of marijuana
and inserting controlled substance offense for which the alien was not incarcerated for a period exceeding 1 year
; and
by striking the final two sentences.
General waiver for aliens previously removed and for the unlawful presence bars
In general
Section 212(d) (8 U.S.C. 1182(d)) is amended by adding at the end the following:
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).
.
Conforming amendment
Section 212(a)(9)(B) of such Act (8 U.S.C. 1182(a)(9)(B)) is amended by striking clause (v).
Waiver of aggravated felony consequences
Section 101 (8 U.S.C. 1101) is amended by adding at the end the following:
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.
.
Discretionary waiver to admit persons in unusual circumstances
New general waiver
Section 212(d) (8 U.S.C. 1182(d)) is amended by adding at the end the following:
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.
.
Waiver for aliens previously removed
Certain aliens previously removed
Section 212(a)(9)(A) (8 U.S.C. 1182(a)(9)(A)) is amended by adding at the end the following:
Waiver authorized
For provision authorizing waiver of clause (i) or (ii), see subsection (d)(13).
.
Aliens unlawfully present
Section 212(a)(9)(B)(v) (8 U.S.C. 1182(A)(9)(B)(v)) is amended to read as follows:
Waiver authorized
For provision authorizing waiver of clause (i), see subsection (d)(13).
.
Restoration of suspension of deportation
Cancellation of removal
Section 240A(a)(3) (8 U.S.C. 1229b(a)(3)) is amended to read as follows:
has not been convicted of an aggravated felony for which the sentence imposed is five years or more.
.
Repeal of rule for termination of continuous period
Section 240A(d)(1) (8 U.S.C. 1229b(d)(1)) (8 U.S.C. 1229b(a)) is repealed.
Section 240A(d) (8 U.S.C. 1229b) is amended—
by redesignating paragraphs (2) and (3) as paragraphs (1) and (2), respectively; and
by inserting before the period at the end of paragraph (1) (as redesignated) the following: , unless the alien’s departure from the United States was due to a temporary trip abroad required by emergency or extenuating circumstances outside the control of the alien
.
Cancellation of removal and Adjustment for certain nonpermanent residents
Section 240A(b)(1) (8 U.S.C. 1229b(b)(1)) is amended to read as follows:
In general
The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien—
has been physically present in the United States for a continuous period of—
7 years immediately preceding the date of application in the case of an alien—
who is deportable on any ground other than a ground specified in clause (ii)(I); and
whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or the alien’s spouse, child, parent, son, or daughter, who is a citizen of the United States or an alien lawfully admitted for permanent residence; or
10 years immediately preceding the date of application in the case of an alien—
who is deportable for conviction of an offense under section 212(a)(2), 237(a)(2), or 237(a)(3); and
whose deportation would, in the opinion of the Attorney General, result in exceptional and extremely unusual hardship to the alien or the alien’s spouse, parent, child, son, or daughter, who is a citizen of the United States or an alien lawfully admitted for permanent residence; and
has been a person of good moral character during such period.
.
Elimination of annual limitation
Section 240A (8 U.S.C. 1229b) is amended by striking subsection (e).
Removal grounds based on criminal offenses
Definition of moral turpitude
Equitable Definition of Moral Turpitude
Conviction of certain crimes
Section 212(a)(2)(A)(i) (8 U.S.C. 1182(a)(2)(A)(i)) is amended by striking of, or who admits having committed, or who admits committing acts which constitute the essential elements of—
and inserting of—
.
Exception
Section 212(a)(2)(A)(ii)(II) (8 U.S.C. 1182(a)(2)(A)(ii)(II)) is amended—
by striking the maximum
and all that follows through such crime,
; and
by striking 6 months
and inserting 1 year
.
Equitable definition of crimes of moral turpitude
Section 237(a)(2)(A)(i)(II) (8 U.S.C. 1227(a)(2)(A)(i)(II)) is amended to read as follows:
for which the alien has been incarcerated for a period exceeding one year,
.
Aggravated felony
definitions
In General
Section 101(a)(43) (8 U.S.C. 1101(a)(43)) is amended by striking The term aggravated felony means
and inserting Aggravated felony means a felony
.
Illicit trafficking
Section 101(a)(43)(B) (8 U.S.C. 1101(a)(43)(B)) is amended by striking Code);
and inserting Code), except it does not include simple possession of a controlled substance;
.
Crimes of violence and theft offenses
Subparagraphs (F), (G), (R), and (S) of section 101(a)(43) (8 U.S.C. 1101(a)(43)(F), (G), (R), and (S)) are each amended by striking imprisonment
and all that follows through the semicolon and inserting imprisonment of more than five years;
.
Corrupt organizations and gambling offenses
Section 101(a)(43)(J) is amended by inserting more than five years
after the words sentence of
.
Alien smuggling
Section 101(a)(43)(N) (8 U.S.C. 101(a)(43)(N)) is amended—
by inserting committed for the purpose of commercial advantage,
after smuggling),
; and
by adding at the end a semicolon.
Discretionary waiver in cases of other minor felonies
Section 101 (8 U.S.C. 1101) is amended by adding at the end the following:
For purposes of this Act, and notwithstanding subsection (a)(43), the Attorney General 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.
.
Definitions of conviction
and term of imprisonment
Section 101(a)(48) (8 U.S.C. 1101(a)(48)) is amended—
in subparagraph (A), by striking court
and all that follows through the period at the end and inserting court. An adjudication or judgment of guilt that has been expunged, deferred, annulled, invalidated, withheld, or vacated, an order of probation without entry of judgment, or any similar disposition shall not be considered a conviction for purposes of this Act.
; and
in subparagraph (B)—
by inserting only
after deemed to include
; and
by striking court of law
and all that follows through the period at the end and inserting court of law. Any such reference shall not be deemed to include any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.
.
Eliminating retroactive changes in removal grounds
Application of aggravated felony definition
The last sentence of section 101(a)(43) (8 U.S.C. 1101(a)(43)) is amended to read as follows: The term shall not apply to any offense that was not covered by the term on the date on which the offense occurred.
.
Grounds of deportability
Section 237 (8 U.S.C. 1227) is amended by adding at the end the following new subsection:
Notwithstanding any other provision of this section, an alien is not deportable by reason of committing any offense that was not a ground of deportability on the date the offense occurred.
.
Grounds of inadmissibility
Section 212 (8 U.S.C. 1182) is amended by adding at the end the following new subsection:
Notwithstanding any other provision of this section, an alien is not inadmissible by reason of committing any offense that was not a ground of inadmissibility on the date the offense occurred.
.
Eliminating unfair retroactive changes in removal rules for persons previously removed
In general
The Attorney General shall establish a process by which an alien described in subsection (b) may apply for reopening a proceeding so as to seek relief from exclusion, deportation, or removal under section 212(c) of the Immigration and Nationality Act, as such section was in effect prior to the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, or section 240A of the Immigration and Nationality Act, as amended by this Act.
Alien described
An alien referred to in subsection (a) is an alien who received a final order of exclusion, deportation, or removal, or a decision on a petition for review or petition for habeas corpus, on or after September 30, 1996, and who was—
excluded, deported, or removed from the United States by reason of having committed a criminal offense that was not a basis for removal, exclusion, or deportation on the date on which the offense was committed;
excluded, deported, or removed from the United States by reason of having committed a criminal offense that is not a basis for removal, exclusion, or deportation on the date of enactment of this Act; or
excluded, deported, or removed from the United States by reason of having committed a criminal offense prior to April 24, 1996, for which there was relief from exclusion, deportation, or removal available prior to such date.
Parole
The Attorney General may in her discretion exercise the parole authority under section 212(d)(5)(A) of the Immigration and Nationality Act (8 U.S.C. 1182(d)(5)(A)) for the purpose of permitting aliens excluded, deported, or removed from the United States to participate in the process established under subsection (a), if the alien establishes prima facie eligibility for the relief.
Diversity Visas
Increase in worldwide level of diversity immigrants
Section 201(e) (8 U.S.C. 1151(e)) is amended by striking 55,000
and inserting 110,000
.
Period designated for application
Section 203(e)(1) (8 U.S.C. 1153(e)(1)) is amended—
by striking Attorney General
each place such term appears and and inserting Secretary of Homeland Security
; and
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.
.
Haitian parity
Adjustment of status for Haitians
In general
Chapter 5 of title II (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
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.
.
Clerical amendment
The table of contents 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
.
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.
Limitation of attorney general’s bond discretion
Section 236 (8 U.S.C. 1226) is amended by adding at the end the following:
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.
.
Elimination of mandatory detention in expedited removal proceedings
Section 235(b)(1)(B)(iii)(IV) (8 U.S.C. 1225(b)(1)(B)(iii)(IV)) is amended to read as follows:
Detention
Aliens subject to the procedures under this clause shall be detained in accordance with section 236.
.
Amendments to Haitian and Immigrant Fairness Act of 1998
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),
.
Determinations with respect to children
Section 902(d) of such Act is amended by adding at the end the following:
Determinations with respect to children
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.
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.
.
New applications and motions to reopen
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 804 of this Act, may submit an application for adjustment of status under such Act not later than the later of—
2 years after the date of the enactment of this Act; and
1 year after the date on which final regulations implementing section 804 are promulgated.
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 804 of this Act.
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.
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.
Liberian refugee relief
Adjustment of status of certain liberian nationals
Adjustment of status
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—
applies for such adjustment before April 1, 2005; and
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.
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.
Aliens eligible for adjustment of status
The benefits provided by subsection (a) shall apply to any alien who—
is a national of Liberia; and
who was granted temporary protected status on or after March 27, 1991; or
was eligible to apply for temporary protected status on or after March 27, 1991.
Stay of removal
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).
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.
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.
Adjustment of status for spouses and children
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—
the alien is a national of Liberia;
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;
the alien applies for such adjustment and is physically present in the United States on the date the application is filed; and
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.
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.
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—
applicants for adjustment of status under section 245 of the Immigration and Nationality Act; or
aliens subject to removal proceedings under section 240 of such Act.
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.
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.
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.
Fairness in asylum and refugee proceedings
Refugee status for unmarried sons and daughters of refugees
Section 207(c)(2) (8 U.S.C. 1157(c)(2)) is amended by adding at the end the following:
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.
.
Asylee status for unmarried sons and daughters of asylees
Section 208(b)(3) (8 U.S.C. 1158(b)(3)) is amended by adding at the end the following:
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.
.
Elimination of arbitrary time limits on asylum applications
Section 208(a)(2) (8 U.S.C. 1158(a)(2)) is amended—
by striking subparagraph (B);
in subparagraph (C), by striking (D),
and inserting (C),
;
in subparagraph (D)—
by striking subparagraphs (B) and (C),
and inserting subparagraph (B),
;
by striking either
; and
by striking asylum or extraordinary
and all that follows through the period at the end and inserting asylum.
; and
by redesignating subparagraphs (C) and (D) as subparagraphs (B) and (C), respectively.
Gender-based persecution
Treatment as refugee
Section 101(a)(42) (8 U.S.C. 1101(a)(42)) is amended by adding at the end the following:
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.
.
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:
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.
.
Elimination of arbitrary cap on persons eligible to adjust status from asylees to legal permanent residents
Section 209(b) (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,
.
Temporary protected status
Adjustment of status for certain recipients of temporary protected status
In general
Section 245 (8 U.S.C. 1255) is amended by adding at the end the following:
If, in the opinion of the Secretary of the Homeland Security Department, a person granted temporary protected status under section 244—
has been physically present in the United States in that status for a continuous period of at least 5 years;
has at all times been a person of good moral character;
has never been convicted of a criminal offense in the United States;
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;
in the case of an alien 18 years of age or older, has accepted the values and cultural life of the United States; and
in the case of an alien 18 years of age or older, has performed at least 40 hours of community service;
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.
The alien shall establish that the alien is admissible to the United States as immigrant, except as otherwise provided in paragraph (2).
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.
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.
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.
.
Limitation on consideration in the Senate of legislation adjusting status
Section 244 (8 U.S.C. 1254a) is amended by striking subsection (h) and redesignating subsection (i) as subsection (h).
Foreign State designations
Section 244(b)(1)(C) (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,
.
Miscellaneous provisions
Naturalization provisions
Physical presence requirement
Section 316(a) (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.
.
Absences from the United States
Section 316(b) (8 U.S.C. 1427(b)) is amended—
in the first sentence, by striking one year
and inserting 18 months
; and
in the second sentence, by striking continuous period of one year
and inserting continuous period of 18 months
.
Preventing inappropriate State and local government involvement in the enforcement of civil immigration provisions under the Immigration and Nationality Act
Elimination of ban on State and local governments from preventing communications with the Department of Homeland Security
In general
Section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1373) is repealed.
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.
Elimination of authority to permit State personnel to carry out immigration officer functions
Section 287(g) (8 U.S.C. 1357(g)) is repealed.
Protection for Immigrant Victims of Violence
Short title of title; table of contents of title; references to VAWA–2000; regulations
Short title
This title may be cited as Immigrant Victims of Violence Protection Act of 2005
.
References to VAWA–2000
In this title, the term VAWA–2000 means the Violence Against Women Act of 2000 (division B of Public Law 106–386).
Regulations
Not later than 180 days after the date of the enactment of this Act, the Attorney General, the Secretary of Homeland Security, and Secretary of State shall promulgate regulations to implement the provisions contained in the Battered Immigrant Women Protection Act of 2000 (title V of VAWA–2000) and the amendments made by (and the provisions of) this title.
Victims of Crime
Conditions applicable to U and T visas
Treatment of U derivatives
Clause (ii) of section 101(a)(15)(U)(ii) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(U)(ii)), as added by section 1513(b) of VAWA–2000, is amended to read as follows:
the spouse or child of an alien described in clause (i), or the parent of such an alien if the alien is a child, or the unmarried sibling of such a child if such sibling is under 18 years of age on the date on which such alien applied for status under such clause, if—
the Secretary of Homeland Security considers it necessary to avoid extreme hardship to such alien or such spouse, child, parent, or sibling; or
a government official described in clause (i)(III) certifies that an investigation or prosecution described in such clause would be harmed without the assistance of such spouse, child, parent, or sibling; and
.
Treatment of spouse and children of victims of trafficking
Clause (ii) of section 101(a)(15)(T) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(T)) is amended to read as follows:
if accompanying, or following to join, the alien described in clause (i)—
in the case of an alien so described who is under 21 years of age, the spouse, children, unmarried siblings under 18 years of age on the date on which such alien applied for status under such clause, and parents of such alien; or
in the case of an alien described in clause (i) who is 21 years of age or older, the spouse and children of such alien;
.
Duration of U and T visas
U visas
Section 214(p) of such Act (8 U.S.C. 1184(p)) is amended by adding at the end the following new paragraph:
Duration of status
The authorized period of status of an alien as a nonimmigrant under section 101(a)(15)(U) shall be 4 years, but shall be extended—
on a year-by-year basis upon certification from a Federal, State or local law enforcement official, prosecutor, judge, or other Federal, State or local authority investigating or prosecuting criminal activity described in section 101(a)(15)(U)(iii) that the alien’s continued presence in the United States is required to assist in the investigation or prosecution of such criminal activity; and
if the alien files an application for adjustment of status under section 245(m), until final adjudication of such application.
.
T visas
Section 214(o) of such Act (8 U.S.C. 1184(o)), as redesignated by section 8(a)(3) of the Trafficking Victims Protection Reauthorization Act of 2003 (Public Law 108–193), is amended by adding at the end the following:
The authorized period of status of an alien as a nonimmigrant status under section 101(a)(15)(T) shall be 4 years, but shall be extended—
on a year-by-year basis upon certification from a Federal, State or local law enforcement official, prosecutor, judge, or other Federal, State or local authority investigating or prosecuting criminal activity relating to human trafficking that the alien’s continued presence in the United States is required to assist in the investigation or prosecution of such criminal activity; and
if the alien files an application for adjustment of status under section 245(l), until final adjudication of such application.
.
Permitting change of nonimmigrant status to U and T nonimmigrant status
In general
Section 248 of such Act (8 U.S.C. 1258) is amended—
by striking The Attorney General
and inserting (a) The Secretary of Homeland Security
;
by inserting (subject to subsection (b))
after except
; and
by adding at the end the following new subsection:
The limitation based on inadmissibility under section 212(a)(9)(B) and the exceptions specified in numbered paragraphs of subsection (a) shall not apply to a change of nonimmigrant classification to that of a nonimmigrant under subparagraph (T) or (U) of section 101(a)(15), other than from such classification under subparagraph (C) or (D) of such section.
.
Conforming amendment
Section 214(l)(2)(A) of such Act (8 U.S.C. 1184(l)(2)(A)) is amended by striking 248(2)
and inserting 248(a)(2)
.
U visa crimes
In general
Section 101(a)(15)(U) of such Act (8 U.S.C. 1101(a)(15)(U)) is amended—
in clause (i)(I)—
by inserting or injury
after physical or mental abuse
; and
by inserting or witness
after victim
; and
in clause (iii), by inserting child abuse; stalking (including physical or electronic stalking);
after unlawful criminal restraint; false imprisonment;
.
Implementation
It is the intent of Congress that certifications should be made under clause (i)(III) of section 101(a)(15)(U) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(U)) where an alien provides information to a law enforcement official on criminal activity described in clause (iii) of such section and is willing to help in the investigation of such activity, regardless of whether a prosecution is made in such case or if prosecution is made for criminal activity not described in such clause.
Certification process for victims of trafficking
Victim assistance in investigation or prosecution
Section 107(b)(1)(E) of the Trafficking Victims Protection Act of 2000 (Division A of Public Law 106–386; 22 U.S.C. 7105(b)(1)(E)) is amended——
in clause (i)(I), by striking investigation and prosecution
and inserting investigation or prosecution, by the United States or a State or local government
; and
in clause (iii)—
by striking Investigation and prosecution
and investigation and prosecution
and inserting Investigation or prosecution
and investigation or prosecution
, respectively;
in subclause (II), by striking and
at the end;
in subclause (III), by striking the period and inserting ; or
; and
by adding at the end the following new subclause:
responding to and cooperating with requests for evidence and information.
.
Clarifying roles of Attorney General and Secretary of Homeland Security
Section 107 of the Trafficking Victims Protection Act of 2000 (Division A of Public Law 106–386; 22 U.S.C. 7105) is amended—
in subsections (b)(1)(E)(i)(II)(bb), (b)(1)(E)(ii), (e)(5), and (g), by striking Attorney General
and inserting Secretary of Homeland Security
; and
in subsection (c), by inserting , Secretary of Homeland Security,
after Attorney General
.
Section 101(a)(15)(T) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(T)) is amended by striking Attorney General
and inserting Secretary of Homeland Security
each place it appears.
Section 212(d)(13) of the Immigration and Nationality Act (8 U.S.C. 1182(d)(13)) is amended—
in subparagraph (A), by striking Attorney General
and inserting Secretary of Homeland Security
;
in subparagraph (B), by striking Attorney General
the first place it appears and inserting Secretary of Homeland Security
; and
in subparagraph (B), by striking Attorney General, in the Attorney General’s discretion
and inserting Secretary, in the Secretary’s discretion
.
Section 101(i) of the Immigration and Nationality Act (8 U.S.C. 1101(i)) is amended—
in paragraph (1), by striking Attorney General
and inserting Secretary of Homeland Security, the Attorney General,
; and
in paragraph (2), by striking Attorney General
and inserting Secretary of Homeland Security
.
Section 245(l) of the Immigration and Nationality Act (8 U.S.C. 1255(l)) is amended—
by striking Attorney General
and inserting Secretary of Homeland Security
the first place it appears in paragraphs (1) and (2) and in paragraph (4);
by striking Attorney General
and inserting Secretary
the second place it appears in paragraphs (1) and (2); and
in paragraph (2), by striking Attorney General’s
and inserting Secretary’s
.
Petitioning by State and local law enforcement officials
Section 107(c)(3) of the Trafficking Victims Protection Act of 2000 (Division A of Public Law 106–386; 22 U.S.C. 7105(c)(3)) is amended by adding at the end the following: State or local law enforcement officials may petition Federal law enforcement officials for the continued presence for trafficking victims. If such a petition contains a certification that a trafficking victim is a victim of a severe form of trafficking, the presence of the trafficking victim shall be permitted in accordance with this paragraph.
.
Effective dates
In general
The amendments made by subsections (a), (b), (c)(1), (d), and (e) shall take effect on the date of the enactment of this Act.
Transition for duration of T visas
In the case of an alien who is classified as a nonimmigrant under section 101(a)(15)(T) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(T)) before the the date of implementation of the amendment made by subsection (c)(2) and whose period of authorized stay was less than 4 years, the authorized period of status of the alien as such a nonimmigrant shall be extended to be 4 years and shall be further extended on a year-by-year basis as provided in section 214(o)(7) of such Act, as added by such amendment.
Certification process
The amendments made by subsection (f)(1) shall be effective as if included in the enactment of VAWA–2000.
The amendments made by subsection (f)(2) shall be effective as of the applicable date of transfer of authority from the Attorney General to the Secretary of Homeland Security under the Homeland Security Act of 2002 (Public Law 107–296).
The amendment made by subsection (f)(3) shall be effective as if included in the enactment of the Trafficking Victims Protection Reauthorization Act of 2003 (Public Law 108–193).
Clarification of basis for relief under hardship waivers for conditional permanent residence
In general
Section 216(c)(4) of the Immigration and Nationality Act (8 U.S.C. 1186a(c)(4)) is amended by adding at the end the following: An application for relief under this paragraph may be based on one or more grounds specified in subparagraphs (A) through (D) and may be amended at any time to change the ground or grounds for such relief without the application being resubmitted.
.
Conforming amendment
Section 237(a)(1)(H)(ii) of such Act (8 U.S.C. 1227(a)(1)(H)(ii)) is amended by inserting before the period at the end the following: or qualifies for a waiver under section 216(c)(4)
.
Effective date
The amendment made by subsection (a) shall apply to applications for relief pending or filed on or after April 10, 2003.
Adjustment of status for victims of trafficking
Section 245(l)(1)(A) of the Immigration and Nationality Act (8 U.S.C. 1255(l)(1)(A)) is amended by striking for a continuous period of at least 3 years
.
VAWA Petitioners
Definition of VAWA petitioner
In general
Section 101(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)) is amended by adding at the end the following new paragraph:
The term VAWA petitioner means an alien whose application or petition for classification or relief under any of the following provisions (whether as a principal or as a derivative) has been filed and has not been denied after exhaustion of administrative appeals:
Clause (iii), (iv), or (vii) of section 204(a)(1)(A).
Clause (ii) or (iii) of section 204(a)(1)(B).
The first section of Public Law 89–732 (commonly known as the Cuban Adjustment Act) as a child or spouse who has been battered or subjected to extreme cruelty.
Section 902(d)(1)(B) of the Haitian Refugee Immigration Fairness Act of 1998 (division A of section 101(h) of Public Law 105–277).
Section 202(d)(1) of the Nicaraguan Adjustment and Central American Relief Act (8 U.S.C. 1255 note; Public Law 105–100).
Section 309(c)(5) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208; 8 U.S.C. 1101 note).
.
Conforming amendments
Section 212(a)(6)(A)(ii)(I) of such Act (8 U.S.C. 1182(a)(6)(A)(ii)(I)) is amended by striking qualifies for immigrant status under subparagraph (A)(iii), (A)(iv), (B)(ii), or (B)(iii) of section 204(a)(1)
and inserting is a VAWA petitioner
.
Section 212(a)(9)(C)(ii) of such Act (8 U.S.C. 1182(a)(9)(C)(ii)) is amended by striking to whom the Attorney General has granted classification under clause (iii), (iv), or (v) of section 204(a)(1)(A), or classification under clause (ii), (iii), or (iv) of section 204(a)(1)(B)
and inserting is a VAWA petitioner
.
Subsections (h)(1)(C) and (g)(1)(C) of section 212 (8 U.S.C. 1182) is amended by striking qualifies for classification under clause (iii) or (iv) of section 204(a)(1)(A) or classification under clause (ii) or (iii) of section 204(a)(1)(B)
and inserting is a VAWA petitioner
.
Section 212(i)(1) of such Act (8 U.S.C. 1182(i)(1)) is amended by striking an alien granted classification under clause (iii) or (iv) of section 201(a)(1)(A) or clause (ii) or (iii) of section 204(a)(1)(B)
and inserting a VAWA petitioner
.
Section 237(a)(1)(H)(ii) of such Act (8 U.S.C. 1227(a)(1)(H)(ii)) is amended by striking is an alien who qualifies for classification under clause (iii) or (iv) of section 204(a)(1)(A) or clause (ii) or (iii) of section 204(a)(1)(B)
and inserting is a VAWA petitioner
.
Section 240A(b)(4)(B) of such Act (8 U.S.C. 1229b(b)(4)(B)) is amended by striking they were applications filed under section 204(a)(1) (A)(iii), (A)(iv), (B)(ii), or (B)(iii) of such Act
and inserting the applicants were VAWA petitioners
.
Section 245(a) of such Act (8 U.S.C. 1255(a)) is amended by striking under subparagraph (A)(iii), (A)(iv), (B)(ii), or (B)(iii) of section 204(a)(1) or
and inserting as a VAWA petitioner
.
Section 245(c) of such Act (8 U.S.C. 1255(c)) is amended by striking under subparagraph (A)(iii), (A)(iv), (A)(v), (A)(vi), (B)(ii), (B)(iii), or (B)(iv) of section 204(a)(1)
and inserting as a VAWA petitioner
.
For additional conforming amendments to sections 212(a)(4)(C)(i) and 240(c)(6)(C)(iv)(I) of the Immigration and Nationality Act, see sections 832(c) and 817(a) of this Act.
Self-petitioning for children
Self-petitioning by children of parent-abusers upon death or other termination of parent-child relationship
Citizen parents
Section 204(a)(1)(A)(iv) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)(A)(iv)) is amended—
by striking or who
and inserting who
; and
by inserting after domestic violence,
the following: or who was a child of a United States citizen parent who within the past 2 years (or, if later, two years after the date the child attains 18 years of age) died or otherwise terminated the parent-child relationship,
.
Lawful permanent resident parents
In general
Section 204(a)(1)(B)(iii) of such Act (8 U.S.C. 1154(a)(1)(B)(iii)) is amended—
by striking or who
and inserting who
; and
by inserting after domestic violence,
the following: or who was a child of a lawful permanent resident resident who within the past 2 years (or, if later, two years after the date the child attains 18 years of age) died or otherwise terminated the parent-child relationship,
.
Conforming treatment of deceased spouses
Section 204(a)(1)(B)(ii)(II)(aa)(CC) of such Act (8 U.S.C. 1154(a)(1)(B)(ii)(II)(aa)(CC)) is amended—
by redesignating subitems (aaa) and (bbb) as subitems (bbb) and (ccc), respectively; and
by inserting before subitem (bbb), as so redesignated, the following:
whose spouse died within the past 2 years;
.
Effective dates
In general
Subject to subparagraph (B), the amendment made by paragraphs (1) and (2) shall take effect on the date of the enactment of this Act.
Transition in case of citizen parents who died before enactment
In applying the amendments made by paragraphs (1) and (2)(A) in the case of an alien whose citizen parent or lawful permanent resident parent died or whose parent-child relationship with such parent terminated during the period beginning on October 28, 1998, and ending on the date of the enactment of this Act, the following rules apply:
The reference to within the past 2 years
in section 204(a)(1)(A)(iv) or 204(a)(1)(B)(iii), respectively, of the Immigration and Nationality Act in the matter inserted by such paragraph is deemed to be a reference to such period.
The petition must be filed under such section within 2 years after the date of the enactment of this Act (or, if later, 2 years after the alien’s 18th birthday).
The determination of eligibility for benefits as a child under such section (including under section 204(a)(1)(D) of the Immigration and Nationality Act by reason of a petition authorized under such section) shall be determined as of the date of the death of the citizen parent or lawful permanent resident parent or the termination of the parent-child relationship.
Protecting victims of child abuse from aging out
Clarification regarding continuation of immediate relative status for children of citizens
Section 204(a)(1)(D)(i)(I) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)(D)(i)(I)) is amended—
by striking clause (iv) of section 204(a)(1)(A)
and inserting subparagraph (A)(iv)
; and
by striking a petitioner for preference status under paragraph (1), (2), or (3) of section 203(a), whichever paragraph is applicable
and inserting to continue to be treated as an immediate relative under section 101(b)(2)(A)(i), or a petitioner for preference status under section 203(a)(3) if subsequently married,
.
Clarification regarding application to children of lawful permanent residents
Section 204(a)(1)(D) of such Act (8 U.S.C. 1154(a)(1)(D)) is amended——
in clause (i)(I)—
by inserting after the first sentence the following new sentence: Any child who attains 21 years of age who has filed a petition under subparagraph (B)(iii) that was filed or approved before the date on which the child attained 21 year of age shall be considered (if the child has not been admitted or approved for lawful permanent residence by the date the child attained 21 years of age) a petitioner for preference status under section 203(a)(2), with the same priority date assigned to the self-petition filed under such subparagraph.
; and
in the last sentence, by inserting in either such case
after shall be required to be filed
;
in clause (i)(III), by striking paragraph (1), (2), or (3) of section 203(a)
and inserting section 203(a)(2)
; and
in clause (ii), by striking (A)(iii), (A)(iv),
.
Clarification of treatment of derivative children
Section 204(a)(1)(D) of such Act is further amended by striking subclauses (III) and (IV) of clause (i) and by striking clause (ii) and inserting the following:
Subclauses (I) and (II) of clause (i) also shall apply to a derivative child under subparagraph (A)(ii) or (A)(iii), or under subparagraph (B)(ii) or (B)(iii), who attains 21 years of age in the same manner as such subclauses apply to a principal petitioner under subparagraph (A)(iv), or subparagraph (B)(iii), respectively.
.
Clarification regarding application of CSPA protections to children of citizens
Section 201(f) of such Act (8 U.S.C. 1151(f)) is amended by adding at the end the following new paragraph:
Application to certain VAWA petitioners
Paragraphs (1) through (3) apply to a petitioner described in clause (iii) or (iv) of section 204(a)(1)(A).
.
Effective date
The amendments made by this subsection shall apply to applications filed before, on, or after the date of the enactment of VAWA–2000, except that the amendment made by paragraph (4) shall apply as if included in the enactment of the Child Status Protection Act (Public Law 107–208).
Clarification of no separate adjustment application for derivative children
In general
Section 204(a)(1)(A) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)(A)) is amended by adding at the end the following new clause:
In the case of a petition under clause (ii), (iii), or (iv) that includes an individual as a derivative child of a principal alien, no adjustment application other than the adjustment application of the principal alien shall be required for adjustment of status of the individual under subsection (a) or (c) of section 245.
.
Effective date
The amendment made by paragraph (1) shall take effect on the date of the enactment of this Act and shall apply to applications filed before, on, or after such date.
Late petition permitted for adults abused as children
In general
Section 204(a)(1)(D) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)(D)), as amended by subsection (b)(1), is amended by adding at the end the following new clause:
In the case of an alien who qualified to petition under subparagraph (A)(iv) or (B)(iii) as of the date the individual attained 21 years of age, the alien may file a petition under such respective subparagraph notwithstanding that the alien has attained such age or been married so long as the petition is filed before the date the individual attains 30 years of age. In the case of such a petition, the alien shall remain eligible for adjustment of status as a child notwithstanding that the alien has attained 21 years of age or has married, or both.
.
Effective date
The amendment made by paragraph (1) shall take effect on the date of the enactment of this Act and shall apply to individuals who attain 21 years of age on or after the date of the enactment of VAWA–2000.
Self-petitioning parents
In general
Section 204(a)(1)(A) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)(A)) is amended by adding at the end the following new clause:
An alien who—
is the parent of a citizen of the United States or was a parent of a citizen of the United States who within the past 2 years lost or renounced citizenship status related to battering or extreme cruelty by the United States citizen son or daughter or who within the past two years died ;
is a person of good moral character;
is eligible to be classified as an immediate relative under section 201(b)(2)(A)(i); and
resides, or has resided in the past, with the citizen daughter or son;
.
Effective date
The amendment made by subsection (a) shall take effect on the date of the enactment of this Act.
Promoting consistency in VAWA adjudications
In general
Section 204(a)(1) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)) is amended—
in subparagraph (A)(iii)(II)(aa)(CC)(bbb), by striking an incident of domestic violence
and inserting battering or extreme cruelty by the United States citizen spouse
;
in subparagraph (A)(iv), by striking an incident of domestic violence
and inserting battering or extreme cruelty by such parent
;
in subparagraph (B)(ii)(II)(aa)(CC)(aaa), by striking due to an incident of domestic violence
and inserting related to battering or extreme cruelty by the lawful permanent resident spouse
; and
in subparagraph (B)(iii), by striking due to an incident of domestic violence
and inserting related to battering or extreme cruelty by such parent
.
Effective date
The amendments made by subsection (a) shall take effect as if included in the enactment of VAWA–2000.
Relief for prima facie victims pending actions on petitions and applications for relief
VAWA petitioners and applicants for U and T nonimmigrant classification
In general
Section 204(a)(1) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1))is amended by adding at the end the following new subparagraph::
In the case of an alien in the United States for whom a petition as a VAWA petitioner has been filed or for whom an application for nonimmigrant status (whether as a principal or derivative child) under subparagraph (T) or (U) of section 101(a)(15) has been filed—
if the petition or application is approved, the alien shall not be removed, detained, or deported;
if the petition or application sets forth a prima facie case for approval, such a petition or application shall be processed without regard to whether a proceeding to remove or deport such alien is brought or pending; and
if the petition or application is approved or sets forth a prima facie case for approval, pending approval of an application for adjustment of status, the alien is eligible for work authorization and shall be provided an employment authorized
endorsement or other appropriate work permit, except that the authorized period of work shall not exceed 180 days unless such petition or application has been approved.
.
Effective date
The amendment made by paragraph (1) shall take effect on the date of the enactment of this Act and shall apply to petitions and applications filed before, on, or after such date.
Applicants for cancellation of removal or suspension of deportation
In general
Section 240A(b)(2) of the Immigration and Nationality Act (8 U.S.C. 1229b(b)(2)) is amended by adding at the end the following new subparagraph: :
Relief while application pending
In the case of an alien who has applied for relief under this paragraph and whose application sets forth a prima facie case for such relief or who has filed an application for relief under section 244(a)(3) (as in effect on March 31, 1997) that sets forth a prima facie case for such relief—
the alien shall not be removed, detained, or deported unless the application is denied and all opportunities for appeal of the denial have been exhausted; and
such an application shall be processed without regard to whether a proceeding to remove or deport such alien is brought or pending.
.
Effective date
The amendment made by paragraph (1) shall take effect on the date of the enactment of this Act and shall apply to applications filed before, on, or after such date.
Access to VAWA protection regardless of manner of entry
Fiancees
In general
Section 214(d) of the Immigration and Nationality Act (8 U.S.C. 1184(d)) is amended by inserting before the period at the end the following: , unless the alien is not eligible under section 204(c) to have a petition approved and is eligible for status as a VAWA petitioner, for status as a nonimmigrant under subparagraph (T) or (U) of section 101(a)(15)(T), or for relief under section 240A(b)(2) or under section 244(a)(3) (as in effect on March 31, 1997)
.
Effective date
The amendment made by paragraph (1) shall take effect on the date of the enactment of this Act and shall apply to aliens admitted before, on, or after such date.
Spouses who are conditional permanent residents
In general
Section 245(d) of the Immigration and Nationality Act (8 U.S.C. 1255(d)) is amended—
by inserting (1)
after (d)
; and
by adding at the end the following new paragraph:
Paragraph (1) shall not apply to an alien who seeks adjustment of status on the basis of an approved petition for classification as a VAWA petitioner.
.
Conforming clarification in cancellation of removal
Section 240A(b)(2)(A) of such Act (8 U.S.C. 1229b(b)(2)(A)) is amended, in the matter before clause (i), by inserting , regardless of whether the alien has been admitted for permanent residence on a conditional basis under section 216,
before if the alien demonstrates
.
Suspension of deportation
An alien may qualify for relief under section 244(a)(3) of the Immigration and Nationality Act (as in effect on March 31, 1997), regardless of whether the alien has been admitted for permanent residence on a conditional basis under section 216 of such Act.
Effective date
The amendments made by this subsection, and the provisions of paragraph (3), shall take effect on the date of the enactment of this Act and shall apply to applications for adjustment of status, for cancellation of removal, or for suspension of deportation filed before, on, or after such date.
Spouses and children of asylum applicants under adjustment provisions
In general
Section 209(b)(3) of the Immigration and Nationality Act (8 U.S.C. 1159(b)(3)) is amended—
by inserting (A)
after (3)
; and
by adding at the end the following:
was the spouse of a refugee within the meaning of section 101(a)(42)(A) at the time the asylum application was granted and who was battered or was the subject of extreme cruelty perpetrated by such refugee or whose child was battered or subjected to extreme cruelty by such refugee (without the active participation of such spouse in the battery or cruelty), or
was the child of a refugee within the meaning of section 101(a)(42)(A) at the time of the filing of the asylum application and who was battered or was the subject of extreme cruelty perpetrated by such refugee,
.
Effective date
The amendments made by paragraph (1) shall take effect on the date of the enactment of this Act and—
section 209(b)(3)(B) of the Immigration and Nationality Act, as added by paragraph (1)(B), shall apply to asylum applications granted before, on, or after such date; and
section 209(b)(3)(C) of such Act, as so added, shall apply with respect to asylum applications filed before, on, or after such date.
Visa waiver entrants
In general
Section 217(b)(2) of such Act (8 U.S.C. 1187(b)(2)) is amended by inserting after asylum,
the following: as a VAWA petitioner, or for relief under subparagraph (T) or (U) of section 101(a)(15), under section 240A(b)(2), or under section 244(a)(3) (as in effect on March 31, 1997),
.
Effective date
The amendment made by paragraph (1) shall take effect on the date of the enactment of this Act and shall apply to waivers provided under section 217(b)(2) of the Immigration and Nationality Act before, on, or after such date as if it had been included in such waivers.
Exception from foreign residence requirement for educational visitors
In general
Section 212(e) of such Act (8 U.S.C. 1182(e)) is amended, in the matter before the first proviso, by inserting unless the alien is a VAWA petitioner or a nonimmigrant under subparagraph (T) or (U) of section 101(a)(15)
after following departure from the United States
.
Effective date
The amendment made by paragraph (1) shall take effect on the date of the enactment of this Act and shall apply to .
Eliminating abusers’ control over applications for adjustments of status
Application of motions to reopen for all VAWA petitioners
Section 240(c)(6)(C)(iv) of the Immigration and Nationality Act (8 U.S.C. 1230(c)(6)(C)(iv)) is amended —
in subclause (I), by striking under clause (iii) or (iv) of section 204(a)(1)(A), clause (ii) or (iii) of section 204(a)(1)(B)
and inserting as a VAWA petitioner
; and
in subclause (II), by inserting or adjustment of status
after cancellation of removal
.
Application of VAWA deportation protections for transitional relief to all VAWA petitioners
Section 1506(c)(2) of the Violence Against Women Act of 2000 (8 U.S.C. 1229a note) is amended—
in subparagraph (A)—
by amending clause (i) to read as follows:
if the basis of the motion is to apply for relief as a VAWA petitioner (as defined in section 101(a)(51) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(51)) or under section 244(a)(3) of such Act (8 U.S.C. 1254(a)(3)); and
; and
in clause (ii), by inserting or adjustment of status
after suspension of deportation
; and
in subparagraph (B)(ii), by striking for relief
and all that follows through 1101 note))
and inserting for relief described in subparagraph (A)(i)
.
Application of VAWA-related relief under section 202 of NACARA
In general
Section 202(d)(1) of the Nicaraguan Adjustment and Central American Relief Act (8 U.S.C. 1255 note; Public Law 105–100) is amended—
in subparagraph (B)(ii), by inserting , or was eligible for adjustment,
after whose status is adjusted
; and
in subparagraph (E), by inserting after April 1, 2000
the following: , or, in the case of an alien who qualifies under subparagraph (B)(ii), applies for such adjustment during the 18-month period beginning on the date of enactment of the Violence Against Women Act of 2005
.
Technical amendment
Section 202(d)(3) of such Act (8 U.S.C. 1255 note; Public Law 105–100) is amended by striking 204(a)(1)(H)
and inserting 204(a)(1)(J)
.
Effective date
The amendment made by paragraph (2) shall take effect as if included in the enactment of VAWA–2000.
Petitioning rights of certain former spouses under Cuban adjustment
In general
The first section of Public Law 89–732 (8 U.S.C. 1255 note) is amended—
in the last sentence, by striking 204(a)(1)(H)
and inserting 204(a)(1)(J)
; and
by adding at the end the following: An alien who was the spouse of any Cuban alien described in this section and has resided with such spouse shall continue to be treated as such a spouse for 2 years after the date on which the Cuban alien dies (or, if later, 2 years after the date of enactment of Violence Against Women Act of 2005), or for 2 years after the date of termination of the marriage (or, if later, 2 years after the date of enactment of Violence Against Women Act of 2005) if the alien demonstrates a connection between the termination of the marriage and the battering or extreme cruelty by the Cuban alien.
.
Effective date
The amendment made by paragraph (1)(A) shall take effect as if included in the enactment of VAWA–2000.
Self-petitioning rights of HRIFA applicants
In general
Section 902(d)(1)(B) of the Haitian Refugee Immigration Fairness Act of 1998 (division A of section 101(h) of Public Law 105–277; 112 Stat. 2681–538; 8 U.S.C. 1255 note), as amended by section 1511(a) of VAWA–2000, is amended—
in clause (i), by striking whose status is adjusted to that of an alien lawfully admitted for permanent residence
and inserting who is or was eligible for classification
;
in clause (ii), by striking whose status is adjusted to that of an alien lawfully admitted for permanent residence
and inserting who is or was eligible for classification
; and
in clause (iii), by striking 204(a)(1)(H)
and inserting 204(a)(1)(J)
.
Effective date
The amendments made by paragraph (1)(C) shall take effect as if included in the enactment of VAWA–2000.
Self-petitioning rights under section 203 of NACARA
Section 309 of the Illegal Immigration and Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208; 8 U.S.C. 1101 note), as amended by section 203(a) of the Nicaraguan Adjustment and Central American Relief Act (8 U.S.C. 1255 note; Public Law 105–100), is amended—
in subsection (c)(5)(C)(i)(VII)(aa), as amended by section 1510(b) of VAWA–2000—
by striking or
at the end of subitem (BB);
by striking and
at the end of subitem (CC) and inserting or
; and
by adding at the end the following new subitem:
at the time at which the spouse or child files an application for suspension of deportation or cancellation of removal; and
; and
in subsection (g)—
by inserting (1)
before Notwithstanding
;
by inserting subject to paragraph (2),
after section 101(a) of the Immigration and Nationality Act)),
; and
by adding at the end the following new paragraph:
There shall be no limitation on a motion to reopen removal or deportation proceedings in the case of an alien who is described in subclause (VI) or (VII) of subsection (c)(5)(C)(i). Motions to reopen removal or deportation proceedings in the case of such an alien shall be handled under the procedures that apply to aliens seeking relief under section 204(a)(1)(A)(iii) of the Immigration and Nationality Act.
.
Effective date
Except as otherwise provided in this section, the amendments made by this section shall take effect on the date of the enactment of this Act.
Parole for family members of victims of VAWA petitioners
In general
Section 240A(b)(4) of the Immigration and Nationality Act (8 U.S.C. 1229b(b)(4)) is amended—
in the heading, by inserting Battered aliens and
before Children of battered aliens
;
in subparagraph (A)—
by striking or
at the end of clause (i);
by striking the period at the end of clause (ii) and inserting ; or
; and
by adding at the end the following new clause:
a VAWA petitioner.
; and
in subparagraph (B)—
in the first sentence, by inserting on a year-by-year basis
after shall extend
; and
in the first sentence, by inserting or, in the case of subparagraph (A)(iii), from the date of approval of the applicable petition
after 1996)
.
Conforming amendment
Section 212(d)(5) of such Act (8 U.S.C. 1182(d)(5)) is amended by adding at the end the following new subparagraph:
For provision providing for parole for certain battered aliens, children or battered aliens, and parents of battered alien children, see section 240A(b)(4).
.
Effective date
The amendments made by this section shall take effect on the date of the enactment of this Act.
Exemption of victims of domestic violence, sexual assault and trafficking from sanctions for failure to depart voluntarily
In general
Section 240B(d) of the Immigration and Nationality Act (8 U.S.C. 1229c(d)) is amended—
by striking If
and inserting (1) Subject to paragraph (2), if
; and
by adding at the end the following new paragraph::
The ineligibility for relief under paragraph (1) shall not apply to an alien who is a VAWA petitioner, who is seeking status as a nonimmigrant under subparagraph (T) or (U) of section 101(a)(15), or who is an applicant for relief under section 240A(b)(2) or under section 244(a)(3) (as in effect on March 31, 1997).
.
Effective date
The amendments made by subsection (a) shall apply as if included in the enactment of the Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208) and shall apply to failures to depart voluntarily occurring before, on, or after the date of the enactment of this Act.
Clarification of access to naturalization for victims of domestic violence
In general
Section 319(a) of the Immigration and Nationality Act (8 U.S.C. 1430(a)) is amended by inserting after extreme cruelty by a United States citizen spouse or parent
the following: , regardless of whether the lawful permanent resident status was obtained on the basis of such battery or cruelty
.
Effective date
The amendment made by subsection (a) shall take effect on the date of the enactment of this Act and shall apply to applications for naturalization filed before, on, or after the date of the enactment of this Act.
Consolidating adjudication of VAWA cases in VAWA unit
In general
Subtitle F of title IV of the Homeland Security Act of 2002 (Public Law 107–296) is amended by adding at the end the following new section:
Consolidated adjudication of VAWA cases in VAWA unit
Sole jurisdiction
The Secretary of Homeland Security shall designate the VAWA unit as the administrative unit within the Department of Homeland Security with sole jurisdiction over the adjudication of the following:
Applications and petitions of VAWA petitioners described in section 101(a)(51) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(51)).
Applications for nonimmigrant status under subparagraph (T) or (U) of section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)).
Applications seeking relief under paragraph (2) or (4) of section 240A(b) of the Immigration and Nationality Act (8 U.S.C. 122b(b)).
Applications for adjustment of status by VAWA petitioners who are described in subparagraph (A) or (B) of section 101(a)(51) of such Act.
Applications for employment authorization under section 214(c)(11).
Additional jurisdiction
The VAWA unit may have jurisdiction over such other matters as the Secretary may specify.
VAWA unit defined
For purposes of this section, the term VAWA unit means the administrative unit within the Department of Homeland Security that has responsibility as of May 1, 2005, for petitions under subparagraphs (A)(iii), (A)(iv), (B)(ii), and (B)(iii) of section 204(a)(1) of the Immigration and Nationality Act and for applications for nonimmigrant status under subparagraphs (T) and (U) of section 101(a)(15) of such Act.
.
Clerical amendment
The table of contents in section 1(b) of such Act is amended by inserting after the item relating to section 478 the following new item:
Sec. 479. Consolidated adjudication of VAWA cases in VAWA unit
.
Effective date
The amendment made by paragraph (1) shall apply to applications and petitions filed on or after the date that is 180 days after the date of the enactment of this Act and, to the extent feasible, to applications and petitions filed before such date.
Prohibition of adverse determinations of admissibility or deportability based on protected information
Application to additional departments and other battered aliens
Section 384 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208; 8 U.S.C. 1367) is amended—
in subsection (a), as amended by section 1513(d) of VAWA–2000—
in the matter before paragraph (1), by striking (including any bureau or agency of such Department)
and inserting , or the Secretary of Homeland Security, the Secretary of State, the Secretary of Health and Human Services, or the Secretary of Labor or any other official or employee of the Department of Homeland Security, the Department of State, the Department of Health and Human Services, or the Department of Labor (including any bureau or agency of any such Department)
;
in paragraph (1)—
in the matter before subparagraph (A), by striking furnished solely by
and inserting furnished by or derived from information provided solely by
;
by striking or
at the end of subparagraph (D);
by adding or
at the end of subparagraph (E); and
by inserting after subparagraph (E) the following new subparagraph:
in the case of an alien applying for continued presence as a victim of trafficking under section 107(b)(1)(E)(i)(II)(bb) of the Trafficking Protection Act of 2000 or status under section 101(a)(15)(T) of the Immigration and Nationality Act, the trafficker or perpetrator,
; and
in paragraph (2)—
by striking of the Department,
and inserting of any such Department,
;
by striking under clause (iii) or (iv) of section 204(a)(1)(A), clause (ii) or (iii) of section 204(a)(1)(B)
and inserting as a VAWA petitioner (as defined in section 101(a)(51) of the Immigration and Nationality Act), or under
; and
by striking or section 240A(a)(3) of such Act as an alien (or the part of a child) who has been battered or subjected to extreme cruelty.
and inserting the following: , section 101(a)(15)(T), or section 240A(b)(2) of such Act, or section 244(a)(3) of such Act (as in effect on March 31, 1997), or for continued presence as a victim of trafficking under section 107(b)(1)(E)(i)(II)(bb) of the Trafficking Protection Act of 2000, or any derivative of the alien;
; and
by inserting after paragraph (2) the following:
undertake any part of an enforcement action—
at a domestic violence shelter, a victims services organization or program (as described in section 2003(8) of the Omnibus Crime Control and Safe Streets Act of 1968), a rape crisis center, a family justice center, or a supervised visitation center; or
against an alien at a courthouse (or in connection with the appearance of the alien at a courthouse) if the alien is appearing in connection with a protection order case, child custody case, or other civil or criminal case relating to domestic violence, sexual assault, trafficking, or stalking in which the alien has been battered or subject to extreme cruelty or if the alien is described in subparagraph (T) or (U) of section 101(a)(15) of the Immigration and Nationality Act; or
in the case of an alien described in section 101(a)(27)(J) of the Immigration and Nationality Act who has been abused, neglected, or abandoned, contact the alleged abuser (or family member of the alleged abuser) at any stage of applying for special immigrant juvenile status, including after a request for the consent of the Secretary of Homeland Security under clause (iii)(I) of such section.
; and
in subsection (b)—
in paragraphs (1), by striking may provide, in the Attorney General’s discretion
and inserting , Secretary of Homeland Security, Secretary of State, Secretary of Health and Human Services, and Secretary of Labor may provide
;
in paragraph (2), by striking may provide in the discretion of the Attorney General
and inserting , Secretary of Homeland Security, Secretary of State, Secretary of Health and Human Services, and the Secretary of Labor may provide
; and
in paragraph (5), by striking is authorized to disclose
and inserting , Secretary of Homeland Security, Secretary of State, Secretary of Health and Human Services, and Secretary of Labor, or Attorney General may disclose
.
Effective date
The amendments made by subsection (a) shall take effect on the date of the enactment of this Act and shall apply to violations or disclosures made on or after such date.
Miscellaneous Provisions
Removing 2 year custody and residency requirement for battered adopted children
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 inserting after at least two years
the following: or if the child has been battered or subject to extreme cruelty by the adopting parent or by a family member of the adopting parent residing in the same household
.
Conforming naturalization amendment
Section 320(a)(3) of such Act (8 U.S.C. 1431(a)(3)) is amended by inserting before the period at the end the following: or the child is residing in the United States pursuant to a lawful admission for permanent residence and has been battered or subject to extreme cruelty by the citizen parent or by a family member of the citizen parent residing in the same household
Effective date
The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to applications pending or filed on or after such date.
Grounds of inadmissibility; good moral character; and foreign residency requirements
Waiver of unlawful presence
Paragraph (9)(B)(iii)(IV) of section 212(a) of the Immigration and Nationality Act (8 U.S.C. 1182(a)) is amended by striking who would be described in paragraph (6)(A)(ii)
and all that follows and by inserting who demonstrates that the alien is described in subclauses (I) and (II) of paragraph (6)(A)(ii).
.
Waiver of false claim of U.S. citizenship
In general
Section 212(i)(1) of such Act (8 U.S.C. 1182(i)(1)) is amended by inserting (and, in the case of a VAWA petitioner who demonstrates a connection between the false claim of United States citizenship and the petitioner being subjected to extreme cruelty or physical or mental abuse, clause (ii))
after clause (i)
.
Conforming reference
Section 212(a)(6)(C)(iii) of such Act (8 U.S.C. 1182(a)(6)(C)(iii)) is amended by striking clause (i)
and inserting clauses (i) and (ii)
.
Exemption from public charge ground
In general
Section 212(a)(4) of such Act (8 U.S.C. 1182(a)(4)) is amended by adding at the end the following new subparagraph:
Special rule for battered aliens
Subparagraphs (A) through (C) shall not apply to an alien who is a VAWA petitioner or is a qualified alien described in section 431(c) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996.
.
Conforming amendment
Section 212(a)(4)(C)(i) of such Act (8 U.S.C. 1182(a)(4)(C)(i)) is amended to read as follows:
.
Effective date
Except as provided in this section, the amendments made by this section shall take effect on the date of the enactment of this Act and shall apply regardless of whether the conviction was entered, crime, or disqualifying event occurred before, on, or after such date.
Treatment of good moral character
In general
Section 101(a)(43) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(43)) is amended——
in subparagraphs (F) and (G), by striking at least one year
and inserting is more than one year
;
in subparagraph (J), by striking one year imprisonment or more
by inserting imprisonment of more than one year
;
in subparagraph (P), by striking at least 12 months
and inserting more than one year
; and
in subparagraphs (R) and (S), by striking at least one year
and inserting more than one year
.
Effective date
The amendments made by subsection (a) shall take effect on the date of the enactment of this Act and shall apply to all convictions entered (and criminal acts occurring) before, on, or after the date of the enactment of this Act.
Employment authorization for battered spouses of H–1B visa holders
In general
Section 214(c) of the Immigration and Nationality Act (8 U.S.C. 1184(c)) is amended by adding at the end the following new paragraph:
In the case of an alien spouse admitted under section 101(a)(15)(H) who is accompanying or following to join a principal alien admitted under section 101(a)(15)(H)(i)(B), the Secretary of Homeland Security shall authorize the alien spouse to engage in employment in the United States and provide the spouse with an employment authorized
endorsement or other appropriate work permit if the alien spouse demonstrates that during the marriage the alien spouse or a child of the alien spouse has been battered or has been the subject to extreme cruelty perpetrated by the spouse of the alien spouse.
.
Effective date
The amendment made by subsection (a) shall take effect on the date of the enactment of this Act and shall apply to aliens who obtained the status of an alien spouse admitted under section 101(a)(15)(H) of the Immigration and Nationality Act before, on, or after such date.
Grounds for hardship waiver for conditional permanent residence for intended spouses
In general
Section 216(c)(4) of the Immigration and Nationality Act (8 U.S.C. 1186a(c)(4)) is amended—
by striking or
at the end of subparagraph (B);
by striking the period at the end of subparagraph (C) and inserting , or
; and
by inserting after subparagraph (C) the following new subparagraph:
the alien meets the requirements under section 204(a)(1)(A)(iii)(II)(aa)(BB) and following the marriage ceremony has been battered by or was subject to extreme cruelty perpetrated by his or her intended spouse and was not at fault in failing to meet the requirements of paragraph (1).
.
Effective date
The amendments made by subsection (a) shall apply as if included in the enactment of VAWA–2000.
Cancellation of removal and suspension of deportation
Clarifying application of domestic violence waiver authority in cancellation of removal
In general
Section 240A(b) of the Immigration and Nationality Act (8 U.S.C. 1229b(b)) is amended—
in paragraph (1)(C), by striking (except in a case described in section 237(a)(7) where the Attorney General exercises discretion to grant a waiver)
and inserting , subject to paragraph (5)
;
in paragraph (2)(A), by amending clause (iv) to read as follows:
subject to paragraph (5), the alien is not inadmissible under section 212(a)(2) or removable under section 237(a)(2) or 237(a)(3); and
; and
by adding at the end the following new paragraph:
Application of domestic violence waiver authority
Paragraphs (1)(C) and (2)(A)(iv) shall not apply with respect to an offense described in clause (i) or (ii) of section 237(a)(2)(E) in the case described in section 237(a)(7)(A).
.
Effective date
The amendments made by paragraph (1) shall apply as if included in the enactment of section 1504(a) of VAWA–2000.
Clarifying nonapplication of cancellation cap
In general
Section 240A(e)(3) of the Immigration and Nationality Act (8 U.S.C. 1229b(e)(3)) is amended by adding at the end the following new subparagraph:
Aliens with respect to their cancellation of removal under subsection (b)(2).
.
Effective date
The amendment made by paragraph (1) shall apply to cancellations of removal occurring on or after October 1, 2004.
Motions to reopen
Removal proceedings
In general
Section 240(c)(6) of the Immigration and Nationality Act (8 U.S.C. 1230(c)(6)) is amended—
in subparagraph (A), by inserting , except that this limitation shall not apply so as to prevent the filing of one motion to reopen described in clause (iv)
before the period at the end;
in subparagraph (C)(iv), in the matter before subclause (I), by striking The deadline specified in subsection (b)(5)(C) for filing a motion to reopen does not apply
and inserting Any limitation under this section on the deadlines for filing such motions shall not apply
; and
in subparagraph (C)(iv), by adding after and below subclause (III) the following new sentence:
The filing of a motion to reopen under this clause shall stay the removal of the alien pending final disposition of the motion including exhaustion of all appeals.
.
Effective date
The amendments made by paragraph (1) shall take effect on the date of the enactment of this Act.
Deportation proceedings
In general
Section 1506(c)(2)(A) of VAWA–2000 is amended—
in the matter before clause (i), by striking Notwithstanding any limitation imposed by law on motions
inserting Notwithstanding any limitation on the number of motions, or the deadlines for filing motions (including the deadline specified in section 242B(c)(3) of the Immigration and Nationality Act before the title III–A effective date),
;
in the matter before clause (i), by striking there is no time limit on the filing of a motion
and all that follows through does not apply
and inserting such limitations shall not apply to the filing of a single motion under this subparagraph to reopen such proceedings
; and
by adding at the end the following:
The filing of a motion under this subparagraph shall stay the removal of the alien pending a final disposition of the motion including the exhaustion of all appeals.
.
Effective date
The amendments made by paragraph (1) shall take effect on the date of the enactment of this Act .
Removal proceedings
Exception to reinstatement of removal
In general
Section 241(a)(5) of the Immigration and Nationality Act (8 U.S.C. 1251(a)(5)) is amended by adding at the end the following: The provisions of this paragraph shall not apply to an alien who, before reinstatement of the removal order, sought relief as a VAWA petitioner, applied for status as a nonimmigrant under subparagraph (T) or (U) of section 101(a)(15), or applied for relief under section 240A(b)(2)or section 244(a)(3) (as in effect on March 31, 1997).
.
Effective date
The amendment made by paragraph (1) shall take effect on the date of the enactment of this Act.
Treatment of battery or extreme cruelty as exceptional circumstances
In general
Section 240(e)(1) of such Act (8 U.S.C. 1230(e)(1)) is amended by inserting battery or extreme cruelty of the alien or any child or parent of the alien or
after exceptional circumstances (such as
.
Effective date
The amendment made by paragraph (1) shall take effect on the date of the enactment of this Act and shall apply to a failure to appear that occurs before, on, or after such date.
Conforming relief in suspension of deportation parallel to the relief available in VAWA–2000 cancellation for bigamy
Section 244(a)(3) of the Immigration and Nationality Act (as in effect before the title III–A effective date in section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996) shall be applied as if or by a United States citizen or lawful permanent resident whom the alien intended to marry, but whose marriage is not legitimate because of that United States citizen’s or permanent resident’s bigamy
were inserted after by a spouse or parent who is a United States citizen or lawful permanent resident
.
Correction of cross-reference to credible evidence provisions
Cuban adjustment provision
The last sentence of the first section of Public Law 89–732 (November 2, 1966; 8 U.S.C. 1255 note), as amended by section 1509(a) of VAWA–2000, is amended by striking 204(a)(1)(H)
and inserting 204(a)(1)(J)
.
NACARA
Section 202(d)(3) of the Nicaraguan Adjustment and Central American Relief Act (8 U.S.C. 1255 note; Public Law 105–100), as amended by section 1510(a)(2) of VAWA–2000, is amended by striking 204(a)(1)(H)
and inserting 204(a)(1)(J)
.
IIARAIRA
Section 309(c)(5)(C)(iii) of the Illegal Immigration and Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208; 8 U.S.C. 1101 note), as amended by section 1510(b)(2) of VAWA–2000, is amended by striking 204(a)(1)(H)
and inserting 204(a)(1)(J)
.
HRIFA
Section 902(d)(1)(B)(iii) of the Haitian Refugee Immigration Fairness Act of 1998 (division A of section 101(h) of Public Law 105–277; 112 Stat. 2681–538), as amended by section 1511(a) of VAWA–2000, is amended by striking 204(a)(1)(H)
and inserting 204(a)(1)(J)
.
Effective date
The amendments made by this section shall take effect as if included in the enactment of VAWA–2000.
Technical corrections
Technical corrections to references in application of special physical presence and good moral character rules
Physical presence rules
Section 240A(b)(2)(B) of the Immigration and Nationality Act (8 U.S.C. 1229b(b)(2)(B)) is amended—
in the first sentence, by striking (A)(i)(II)
and inserting (A)(ii)
; and
in the fourth sentence, by striking section 240A(b)(2)(B)
and inserting this subparagraph, subparagraph (A)(ii),
.
Moral character rules
Section 240A(b)(2)(C) of such Act (8 U.S.C. 1229b(b)(2)(C)) is amended by striking (A)(i)(III)
and inserting (A)(iii)
.
Effective date
The amendments made by this subsection shall be effective as if included in the enactment of section 1504(a) of VAWA (114 Stat. 1522).
Correction of cross-reference error in applying good moral character
In general
Section 101(f)(3) of the Immigration and Nationality Act (8 U.S.C. 1101(f)(3)) is amended by striking (9)(A)
and inserting (10)(A)
.
Effective date
The amendment made by paragraph (1) shall be effective as if included in the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Public Law 104–208).
Punctuation correction
Effective as if included in the enactment of section 5(c)(2) of VAWA–2000, section 237(a)(1)(H)(ii) of such Act (8 U.S.C. 1227(a)(1)(H)(ii)) is amended by striking the period at the end and inserting ; or
.
Correction of designation and indentation
The last sentence of section 212(a)(9)(C)(ii) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(9)(C)(ii)), as added by section 1505(a) of VAWA–2000, is amended—
by striking section 212(a)(9)(C)(i)
and inserting clause (i)
;
by redesignating paragraphs (1) and (2), and subparagraphs (A) through (D) of paragraph (2), as subclauses (I) and (II), and items (aa) through (dd) of subclause (II), respectively; and
by moving the margins of each of such paragraphs and subparagraphs 6 ems to the right.
Additional technical correction
Section 245(l)(2)(B) of such Act (8 U.S.C. 1255(l)(2)(B)) is amended by striking (10(E))
and inserting (10)(E))
.
Ensuring Crime Victim Access to Legal Services
Ensuring crime victim access to legal services
In general
Section 502 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1998 (Public Law 105–119; 111 Stat. 2510) is amended—
by amending subparagraph (C) of subsection (a) to read as follows:
subsection (a)(11) of such section 504 shall not be construed to prohibit a recipient from using Corporation funds and funds derived from a source other than the Corporation to provide legal assistance to—
an alien who has been battered or subjected to extreme cruelty or who has been a victim of sexual assault or a victim of trafficking in the United States;
an alien whose child has been battered or subjected to extreme cruelty or has been a victim of sexual assault or a victim of trafficking in the United States, if the alien has not actively participated in the battery, extreme cruelty, sexual assault, or trafficking; or
an alien who qualifies (or whose child qualifies) for status under section 101(a)(15)(U) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(U)) .
; and
by striking paragraph (2) of subsection (b) and inserting the following:
The term victim of trafficking has the meaning given such term in section 103(14) of the Trafficking Victims Protection Act of 2000 (Public Law 106–286; 22 U.S.C. 7102(14)).
.
Effective date
The amendments made by subsection (a) shall apply to expenditures made on or after the date of the enactment of this Act with respect to appropriations made for fiscal years beginning before, on, or after such date.
Construction
Nothing in the amendments made by subsection (a) shall be construed to restrict the legal assistance provided to victims of severe forms of trafficking and certain family members allowed under section 107(b)(1) of the Trafficking Victims Protection Act of 2000 (Public Law 106–286; 22 U.S.C. 7105(b)(1)).
Eligibility for Certain Public Benefits of Aliens Suffering from Domestic Abuse
Eligibility for certain public benefits of aliens suffering from domestic abuse
Exemption from SSI and food stamps ban
Section 402(a)(2) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1612(a)(2)) is amended by adding at the end the following new subparagraph:
Battered and crime victim aliens
With respect to eligibility for benefits for a specified Federal program (as defined in paragraph (3)), paragraph (1) shall not apply to an alien who—
is described in section 431(c);
is described in section 431(b) and also is described in section 431(c), other than paragraphs (1)(B), (2)(B), and (3)(B) of such section; or
is described in a clause (i) or (ii) and was lawfully admitted as a permanent resident.
.
Exemption from TANF, social services block grant, and medicaid ban
Section 402(b)(2) of such Act (8 U.S.C. 1612(b)(2)) is amended by inserting after subparagraph (F) the following new subparagraph:
Battered and crime victim aliens
An alien who—
is described in section 431(c);
is described in section 431(b) and also is described in section 431(c), other than paragraphs (1)(B), (2)(B), and (3)(B) of such section; or
is described in clause (i) or (ii) and was lawfully admitted as a permanent resident.
.
Exemption from 5-year ban for Federal means-tested public benefits
Section 403(b) of such Act (8 U.S.C. 1613(b)) is amended by adding at the end the following new paragraph:
Battered and crime victim aliens
An alien who—
is described in section 431(c);
is described in section 431(b) and also is described in section 431(c), other than paragraphs (1)(B), (2)(B), and (3)(B) of such section; or
is described in subparagraph (A) or (B) and was lawfully admitted as a permanent resident.
.
Status as qualified alien for VAWA petitioners and nonimmigrant U
and T
visa applicants and visa holders
Section 431(c) of such Act (8 U.S.C. 1641(b)) is amended—
in paragraph (1)(B)—
in clause (i), by striking or a child
and inserting , child, or parent
and by striking or (iv)
and inserting (iv), or (vii)
;
in clause (ii), by striking (as in effect prior to April 1, 1997)
;
in clause (iii), by striking the period at the end and inserting a comma;
in clause (iv), by striking the semicolon at the end and inserting a comma;
in clause (v), by striking the semicolon at the end and inserting , or
; and
by adding at the end the following new clause:
status as a VAWA petitioner (as defined in section 101(a)(51) of such Act), other than such a petitioner described in clause (i) or (ii);
;
by striking or
at the end of paragraph (2)(B);
by striking the period at the end of paragraph (3)(B) and inserting ; or
; and
by inserting after paragraph (3)(B) the following new paragraph:
an alien who has applied for and not been denied status as a nonimmigrant under clause (i) or (ii) of subparagraph (T), or clause (i) or (ii) of subparagraph (U), of section 101(a)(15) of the Immigration and Nationality Act
.
Conforming definition of family
used in laws granting Federal public benefit access for battered aliens to State family law
In general
Section 431(c) of such Act (8 U.S.C. 1641(c)) is amended—
in paragraph (1)(A), by striking by a spouse or a parent, or by a member of the spouse or parent’s family residing in the same household as the alien and the spouse or parent consented to, or acquiesced in, such battery or cruelty
and inserting by a spouse, parent, son, or daughter, or by any individual having a relationship with the alien covered by the civil or criminal domestic violence statutes of the State or Indian country where the alien resides, or the State or Indian country in which the alien, the alien’s child, or the alien child’s parents received a protection order, or by any individual against whom the alien could obtain a protection order,
;
in paragraph (2)(A), by striking by a spouse or parent of the alien (without the active participation of the alien in the battery or cruelty), by a member of the spouse or parent’s family residing in the same household as the alien and the spouse or parent consented or acquiesced to such battery or cruelty,
and inserting by a spouse, parent, son, or daughter of the alien (without the active participation of the alien in such battery) or by any individual having a relationship with the alien covered by the civil or criminal domestic violence statutes of the State or Indian country where the alien resides, or the State or Indian country in which the alien, the alien’s child, or the alien child’s parents received a protection order, or by any individual against whom the alien could obtain a protection order,
; and
in paragraph (3)(A), by striking by a spouse or parent, or by a member of the spouse or parent’s family residing in the same household as the alien and the spouse or parent consented or acquiesced to such battery or cruelty,
and inserting by a spouse, parent, son, or daughter, or by any individual having a relationship with the alien covered by the civil or criminal domestic violence statutes of the State or Indian country where the alien resides, or the State or Indian country in which the alien, the alien’s child, or the alien child’s parents received a protection order, or by any individual against whom the alien could obtain a protection order,
.
Federal attribution of sponsor’s income and resources
Section 421(f)(1)(A) of such Act (8 U.S.C. 1631(f)(1)(A)) is amended—
in clause (i), by striking by a spouse or parent, or by a member of the spouse or parent’s family residing in the same household as the alien and the spouse or parent consented or acquiesced to such battery or cruelty,
and inserting by a spouse, parent, son, or daughter, or by any individual having a relationship with the alien covered by the civil or criminal domestic violence statutes of the State or Indian country where the alien resides, or the State or Indian country in which the alien, the alien’s child, or the alien child’s parents received a protection order, or by any individual against whom the alien could obtain a protection order,
;
in clause (ii), by striking by a spouse or parent of the alien (without the active participation of the alien in the battery or cruelty), or by a member of the spouse or parent’s family residing in the same household as the alien and the spouse or parent consented or acquiesced to such battery or cruelty,
and inserting by a spouse, parent, son, or daughter of the alien (without the active participation of the alien in the battery or cruelty) or by any individual having a relationship with the alien covered by the civil or criminal domestic violence statutes of the State or Indian country where the alien resides, or the State or Indian country in which the alien, the alien’s child, or the alien child’s parents received a protection order, or by any individual against whom the alien could obtain a protection order,
;
by striking or
before (iii) the alien
; and
by inserting , or (iv) the alien is described in section 431(c)(4)
before and the battery or cruelty
.
Elimination of sponsor liability and responsibility or reimbursement with respect to benefits provided to battered aliens
Section 423(d) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 is amended by adding after paragraph (11) the following new paragraph:
Benefits provided to an alien who—
is described in section 431(c); or
is described in section 431(b) and also is described in section 431(c), other than paragraphs (1)(B), (2)(B), and (3)(B) of such section.
.
Conforming amendment confirming IIRAIRA’s grant of public and assisted housing to all qualified aliens, including battered immigrants
Section 214 of the Housing and Community Development Act of 1980 (42 U.S.C. 1436a) is amended—
in subsection (a)—
in paragraph (6), by striking or
at the end;
by redesignating paragraph (7) as paragraph (8); and
by inserting after paragraph (6) the following:
a qualified alien described in section 431 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1641), or
; and
in subsection (c)—
in paragraph (1)(A), by striking (6)
and inserting (7)
; and
in paragraph (2)(A), in the matter preceding clause (i), by inserting (other than a qualified alien described in 431 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1641)
after any alien
.
Implementation
Not later than 180 days after the date of the enactment of this Act, the Secretary of Homeland Security, Secretary of Agriculture, the Secretary of Health and Human Services, and the Secretary of Housing and Urban Development shall promulgate regulations for its officials to implement this section.
Effective date
The amendments made by this section apply to applications for public benefits and public benefits provided on or after the date of the enactment of this Act.
Law Enforcement Training Grants
Grants for law enforcement training programs to identify and protect victims of trafficking
Definitions
In this section:
Act of trafficking
The term act of trafficking means an act or practice described in paragraph (8) or (9) of section 103 of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7102).
Eligible entity
The term eligible entity means a State or a local government.
State
The term State means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the United States Virgin Islands, the Commonwealth of the Northern Mariana Islands, American Samoa, and any other territory or possession of the United States.
Victim of trafficking
The term victim of trafficking means an individual subjected to an act of trafficking.
Grants authorized
The Attorney General may award grants to eligible entities to provide training to State and local law enforcement personnel to identify and protect victims of trafficking.
Use of funds
A grant awarded under this section shall be used for any one or more of the following:
To train law enforcement personnel to identify and protect victims of trafficking, including training such personnel to utilize Federal, State, or local resources to assist victims of trafficking.
To train law enforcement or State or local prosecutors to identify, investigate, or prosecute acts of trafficking.
To train law enforcement or State or local prosecutors to utilize laws that prohibit acts of trafficking.
To assist in the development of State and local laws to prohibit acts of trafficking.
Restrictions
Supplement not supplant
A grant awarded under this section shall be used to supplement and not supplant other Federal, State, and local public funds available to carry out the training described in subsection (c).
Administrative expenses
An eligible entity that receives a grant under this section may use not more than 5 percent of the total amount of such grant for administrative expenses.
Nonexclusivity
Nothing in this section may be construed to restrict the ability of an eligible entity to apply for or obtain funding from any other source to carry out the training described in subsection (c).
Authorization of appropriations
There are authorized to be appropriated $10,000,000 for each of fiscal years 2006 through 2010 to carry out this section.