Short title

This Act may be cited as the

Immigration Relief for Hurricane Katrina Victims Act of 2005

Special immigrant status

(a)

In General

For purposes of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.), the Secretary of Homeland Security may provide an alien described in subsection (b) with the status of a special immigrant under section 101(a)(27) of such Act (8 U.S.C. 1101(a(27)), if the alien— (1)files with the Secretary of Homeland Security a petition under section 204 of such Act (8 U.S.C. 1154) for classification under section 203(b)(4) of such Act (8 U.S.C. 1153(b)(4)); and (2)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 section 212(a)(4) of such Act (8 U.S.C. 1182(a)(4)) shall not apply. (b)

Aliens Described

(1)

Principal aliens

An alien is described in this subsection if— (A)the alien was the beneficiary of— (i)a petition that was filed with the Secretary of Homeland Security on or before August 29, 2005— (I)under section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) to classify the alien as a family-sponsored immigrant under section 203(a) of such Act (8 U.S.C. 1153(a)) or as an employment-based immigrant under section 203(b) of such Act (8 U.S.C. 1153(b)); or (II)under section 214(d) (8 U.S.C. 1184(d)) of such Act to authorize the issuance of a nonimmigrant visa to the alien under section 101(a)(15)(K) of such Act (8 U.S.C. 1101(a)(15)(K)); or (ii)an application for labor certification under section 212(a)(5)(A) of such Act (8 U.S.C. 1182(a)(5)(A)) that was filed under regulations of the Secretary of Labor on or before such date; and (B)such petition or application was revoked or terminated (or otherwise rendered null), either before or after its approval, due to a specified hurricane disaster that had as a consequence— (i)the death or disability of the petitioner, applicant, or alien beneficiary; or (ii)loss of employment due to physical damage to, or destruction of, the business of the petitioner or applicant. (2)

Spouses and children

(A)

In general

An alien is described in this subsection if— (i)the alien was, on August 29, 2005, the spouse or child of a principal alien described in paragraph (1); and (ii)the alien— (I)is accompanying such principal alien; or (II)is following to join such principal alien not later than August 29, 2007. (B)

Construction

For purposes of construing the terms accompanying and following to join in subparagraph (A)(ii), any death of a principal alien that is described in paragraph (1)(B)(i) shall be disregarded. (3)

Grandparents of orphans

An alien is described in this subsection if the alien is a grandparent of a child, both of whose parents died as a consequence of a specified hurricane disaster, if either of such deceased parents was, on August 29, 2005 a citizen or national of the United States or an alien lawfully admitted for permanent residence in the United States. (c)

Priority Date

Immigrant visas made available under this section shall be issued to aliens in the order in which a petition on behalf of each such alien is filed with the Secretary of Homeland Security under subsection (a)(1), except that if an alien was assigned a priority date with respect to a petition described in subsection (b)(1)(A)(i), the alien may maintain that priority date. (d)

Numerical Limitations

For purposes of the application of sections 201 through 203 of the Immigration and Nationality Act (8 U.S.C. 1151–1153) in any fiscal year, aliens eligible to be provided status under this section shall be treated as special immigrants described in section 101(a)(27) of such Act (8 U.S.C. 1101(a)(27)) who are not described in subparagraph (A), (B), (C), or (K) of such section.

Extension of filing or reentry deadlines

(a)

Automatic Extension of Nonimmigrant Status

(1)

In general

Notwithstanding section 214 of the Immigration and Nationality Act (8 U.S.C. 1184), in the case of an alien described in paragraph (2) who was lawfully present in the United States as a nonimmigrant on August 29, 2005, the alien may remain lawfully in the United States in the same nonimmigrant status until the later of— (A)the date such lawful nonimmigrant status otherwise would have terminated if this subsection had not been enacted; or (B)1 year after the death or onset of disability described in paragraph (2). (2)

Aliens described

(A)

Principal aliens

An alien is described in this paragraph if the alien was disabled as a consequence of a specified hurricane disaster. (B)

Spouses and children

An alien is described in this paragraph if the alien was, on August 29, 2005, the spouse or child of— (i)a principal alien described in subparagraph (A); or (ii)an alien who died as a consequence of a specified hurricane disaster. (3)

Authorized employment

During the period in which a principal alien or alien spouse is in lawful nonimmigrant status under paragraph (1), the alien shall be provided an employment authorized endorsement or other appropriate document signifying authorization of employment not later than 30 days after the alien requests such authorization. (b)

New Deadlines for Extension or Change of Nonimmigrant Status

(1)

Filing delays

In the case of an alien who was lawfully present in the United States as a nonimmigrant on August 29, 2005, if the alien was prevented from filing a timely application for an extension or change of nonimmigrant status due to a circumstance described in paragraph (3)(A) that is a consequence of a specified hurricane disaster, the alien’s application shall be considered timely filed if it is filed not later than 180 days after it otherwise would have been due. (2)

Departure delays

In the case of an alien who was lawfully present in the United States as a nonimmigrant on August 29, 2005, if the alien was prevented from timely departing the United States due to a circumstance described in paragraph (3)(B) that is a consequence of a specified hurricane disaster, the alien shall not be considered to have been unlawfully present in the United States during the period beginning on August 30, 2005, and ending on the date of the alien’s departure, if such departure occurs on or before December 31, 2005. (3)

Circumstances preventing timely action

(A)

Filing delays

For purposes of paragraph (1), circumstances preventing an alien from filing a timely application are— (i)injury; (ii)office closures; (iii)mail or courier service cessations or delays; and (iv)other closures, cessations, or delays affecting case processing or travel necessary to satisfy legal requirements. (B)

Departure delays

For purposes of paragraph (2), circumstances preventing an alien from timely departing the United States are— (i)injury; (ii)office closures; (iii)airline flight cessations or delays; and (iv)other closures, cessations, or delays affecting case processing or travel necessary to satisfy legal requirements. (c)

Diversity Immigrants

(1)

Waiver of fiscal year limitation

Notwithstanding section 203(e)(2) of the Immigration and Nationality Act (8 U.S.C. 1153(e)(2)), an immigrant visa number issued to an alien under section 203(c) of such Act for fiscal year 2005 may be used by the alien during the period beginning on October 1, 2005, and ending on April 1, 2006, if the alien establishes that the alien was prevented from using it during fiscal year 2005 due to a circumstance described in paragraph (4) that is a consequence of a specified hurricane disaster. (2)

Worldwide level

In the case of an alien entering the United States as a lawful permanent resident, or adjusting to that status, under paragraph (1) or (3), the alien shall be counted as a diversity immigrant for fiscal year 2005 for purposes of section 201(e) of the Immigration and Nationality Act (8 U.S.C. 1151(e)), unless the worldwide level under such section for such year has been exceeded, in which case the alien shall be counted as a diversity immigrant for fiscal year 2006. (3)

Treatment of family members of certain aliens

In the case of a principal alien issued an immigrant visa number under section 203(c) of the Immigration and Nationality Act (8 U.S.C. 1153(c)) for fiscal year 2005, if such principal alien died as a consequence of a specified hurricane disaster, the aliens who were, on August 29, 2005, the spouse and children of such principal alien shall, until June 30, 2006, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c) of section 203 of such Act, be entitled to the same status, and the same order of consideration, that would have been provided to such alien spouse or child under section 203(d) of such Act as if the principal alien were not deceased and as if the spouse or child’s visa application had been adjudicated by September 30, 2005. (4)

Circumstances preventing timely action

For purposes of paragraph (1), circumstances preventing an alien from using an immigrant visa number during fiscal year 2005 are— (A)office closures; (B)mail or courier service cessations or delays; (C)airline flight cessations or delays; and (D)other closures, cessations, or delays affecting case processing or travel necessary to satisfy legal requirements. (d)

Extension of Expiration of Immigrant Visas

(1)

In general

Notwithstanding the limitations under section 221(c) of the Immigration and Nationality Act (8 U.S.C. 1201(c)), in the case of any immigrant visa issued to an alien that expires or expired before February 26, 2006 if the alien was unable to effect entry into the United States due to a circumstance described in paragraph (2) that is a consequence of a specified hurricane disaster, then the period of validity of the visa is extended until February 26, 2006, unless a longer period of validity is otherwise provided under this Act. (2)

Circumstances preventing entry

For purposes of paragraph (1), circumstances preventing an alien from effecting entry into the United States are— (A)destruction of, or damage rendering uninhabitable, the intended residence of the alien; (B)a legal prohibition on inhabiting or accessing the intended residence of the alien; (C)office closures; (D)airline flight cessations or delays; and (E)other closures, cessations, or delays affecting case processing or travel necessary to satisfy legal requirements. (e)

Grants of Parole Extended

(1)

In general

In the case of any parole granted by the Secretary of Homeland Security under section 212(d)(5) of the Immigration and Nationality Act (8 U.S.C. 1182(d)(5)) that expires on a date on or after August 26, 2005, if the alien beneficiary of the parole was unable to return to the United States prior to the expiration date due to a circumstance described in paragraph (2) that is a consequence of a specified hurricane disaster, the parole is deemed extended for an additional 90 days. (2)

Circumstances preventing return

For purposes of paragraph (1), circumstances preventing an alien from timely returning to the United States are— (A)office closures; (B)airline flight cessations or delays; and (C)other closures, cessations, or delays affecting case processing or travel necessary to satisfy legal requirements. (f)

Voluntary Departure

Notwithstanding section 240B of the Immigration and Nationality Act (8 U.S.C. 1229c), if a period for voluntary departure of an alien under such section expired during the period beginning on August 26, 2005, and ending on October 26, 2005, and the alien was unable voluntarily to depart as a consequence of a specified hurricane disaster, such voluntary departure period is deemed extended for an additional 60 days.

Humanitarian relief for certain surviving spouses and children

(a)

Treatment as Immediate Relatives

(1)

Spouses

Notwithstanding the second sentence of section 201(b)(2)(A)(i) of the Immigration and Nationality Act (8 U.S.C. 1151(b)(2)(A)(i)), in the case of an alien who was the spouse of a citizen of the United States at the time of the citizen’s death and was not legally separated from the citizen at the time of the citizen’s death, if the citizen died as a consequence of a specified hurricane disaster, the alien (and each child of the alien) shall be considered, for purposes of section 201(b) of such Act, to be 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) of such Act within 2 years after such date and only until the date the alien remarries. For purposes of such section 204(a)(1)(A)(ii), an alien granted relief under the preceding sentence shall be considered an alien spouse described in the second sentence of section 201(b)(2)(A)(i) of such Act. (2)

Children

(A)

In general

In the case of an alien who was the child of a citizen of the United States at the time of the citizen’s death, if the citizen died as a consequence of a specified hurricane disaster, the alien shall be considered, for purposes of section 201(b) of the Immigration and Nationality Act (8 U.S.C. 1151(b)), to remain an immediate relative after the date of the citizen’s death (regardless of changes in age or marital status thereafter), but only if the alien (or a parent or guardian of the alien) files a petition under subparagraph (B) within 2 years after such date. (B)

Petitions

An alien (or parent or guardian) described in subparagraph (A) may file a petition with the Secretary of Homeland Security for classification of the alien under section 201(b)(2)(A)(i) of the Immigration and Nationality Act (8 U.S.C. 1151(b)(2)(A)(i)). For purposes of such Act, such a petition shall be considered a petition filed under section 204(a)(1)(A) of such Act (8 U.S.C. 1154(a)(1)(A)). (3)

Unconditional status

An alien who obtains the status of an alien lawfully admitted for permanent residence pursuant to this subsection shall not be considered to have obtained such status on a conditional basis, and shall not be subject to section 216 of the Immigration and Nationality Act (8 U.S.C. 1186a). (b)

Spouses, Children, Unmarried Sons and Daughters of Lawful Permanent Resident Aliens

(1)

In general

Any spouse, child, or unmarried son or daughter of an alien described in paragraph (3) who is included in a petition for classification as a family-sponsored immigrant under section 203(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1153(a)(2)) that was filed by such alien before August 29, 2005, shall be considered (if the spouse, child, son, or daughter has not been admitted or approved for lawful permanent residence by such date) a valid petitioner for preference status under such section with the same priority date as that assigned prior to the death described in paragraph (3)(A). No new petition shall be required to be filed. Such spouse, child, son, or daughter may be eligible for deferred action and work authorization. (2)

Self-petitions

Any spouse, child, or unmarried son or daughter of an alien described in paragraph (3) who is not a beneficiary of a petition for classification as a family-sponsored immigrant under section 203(a)(2) of the Immigration and Nationality Act may file a petition for such classification with the Secretary of Homeland Security, if the spouse, child, son, or daughter was present in the United States on August 29, 2005. Such spouse, child, son, or daughter may be eligible for deferred action and work authorization. (3)

Aliens described

An alien is described in this paragraph if the alien— (A)died as a consequence of a specified hurricane disaster; and (B)on the day of such death, was lawfully admitted for permanent residence in the United States. (4)

Unconditional status

Applications for Adjustment of Status by Surviving Spouses and Children of Employment-Based Immigrants

(1)

In general

Any alien who was, on August 29, 2005, the spouse or child of an alien described in paragraph (2), and who applied for adjustment of status prior to the death described in paragraph (2)(A), may have such application adjudicated as if such death had not occurred. (2)

Aliens described

An alien is described in this paragraph if the alien— (A)died as a consequence of a specified hurricane disaster; and (B)on the day before such death, was— (i)an alien lawfully admitted for permanent residence in the United States by reason of having been allotted a visa under section 203(b) of the Immigration and Nationality Act (8 U.S.C. 1153(b)); or (ii)an applicant for adjustment of status to that of an alien described in clause (i), and admissible to the United States for permanent residence. (d)

Applications for asylum or admission as refugee by surviving spouses and children of asylees and refugees

(1)

Asylum

(A)

In general

Any alien who was, on August 29, 2005, the spouse or child of an individual described in subparagraph (B), may have the alien’s eligibility to be granted asylum determined under section 208(b)(3) of the Immigration and Nationality Act (8 U.S.C. 1158(b)(3)) as if such individual had not died. (B)

Principals described

An individual is described in this subparagraph if the individual— (i)died as a consequence of a specified hurricane disaster; and (ii)before such death, was granted asylum under section 208 of such Act (8 U.S.C. 1158). (2)

Admission as a refugee

(A)

In general

Any alien who was, on August 29, 2005, the spouse or child of an individual described in subparagraph (B), may have the alien’s eligibility to be admitted to the United States as a refugee determined under section 207(c)(2) of the Immigration and Nationality Act (8 U.S.C. 1157(c)(2)) as if such individual had not died. (B)

Principals described

An individual is described in this subparagraph if the individual— (i)died as a consequence of a specified hurricane disaster; and (ii)before such death, was admitted to the United States as a refugee under section 207 of such Act (8 U.S.C. 1157). (e)

Waiver of Public Charge Grounds

In determining the admissibility of any alien accorded an immigration benefit under this section, the grounds for inadmissibility specified in section 212(a)(4) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(4)) shall not apply.

Naturalization

(a)

In general

With respect to an applicant for naturalization who resided, on August 29, 2005, within a portion of a district of U.S. Citizenship and Immigration Services that was declared by the President to be affected by a specified hurricane disaster, the Secretary of Homeland Security may administer the provisions of title III of the Immigration and Nationality Act (8 U.S.C. 1401 et seq.) without regard to any provision of such title otherwise requiring residence to be maintained, or any other action to be taken, in any specific State or district of U.S. Citizenship and Immigration Services. (b)

Court authority to administer oaths

Notwithstanding section 310(b)(1) of the Immigration and Nationality Act (8 U.S.C. 1421(b)(1)), with respect to an applicant for naturalization described in subsection (a), an eligible court (as defined in section 310(b)(5) of such Act (8 U.S.C. 1421(b)(5))) may administer the oath of allegiance under section 337(a) of such Act (8 U.S.C. 1448(a)) to the applicant regardless of whether the applicant is permanently residing within the jurisdiction of the court.

Foreign students and exchange program participants

(a)

In general

In the case of an nonimmigrant alien described in subsection (b), the alien’s nonimmigrant status shall be considered to have been maintained during the period beginning on August 29, 2005, and ending on February 1, 2006, if, on February 1, 2006, the alien is enrolled in a course of study, or participating in a designated exchange visitor program, sufficient to satisfy the terms and conditions of the alien’s nonimmigrant status on August 29, 2005. (b)

Aliens described

An alien is described in this subsection if the alien— (1)was, on August 29, 2005, lawfully present in the United States in the status of a nonimmigrant described in subparagraph (F), (J), or (M) of section 101(a)(15) of the Immigration and Nationality Act (8 U.S. C. 1101(a)(15)); and (2)fails to satisfy a term or condition of such status as a consequence of a specified hurricane disaster.

Notices of change of address

(a)

In general

In the case of any notice of change of address otherwise required to be submitted to the Secretary of Homeland Security by an alien described in subsection (b)— (1)if the notice relates to a change of address occurring during the period beginning on August 29, 2005, and ending on November 15, 2005, the alien shall have until December 1, 2005, to submit such notice; and (2)if the notice relates to a change of address occurring during the period beginning on November 16, 2005, and ending on February 16, 2006, the alien shall have until February 28, 2006, to submit such notice. (b)

Aliens described

An alien is described in this subsection if the alien— (1)resided, on August 29, 2005, within a district of U.S. Citizenship and Immigration Services that was declared by the President to be affected by a specified hurricane disaster; and (2)is required, under section 265 of the Immigration and Nationality Act (8 U.S.C. 1305) or any other provision of law, to notify the Secretary of Homeland Security in writing of a change of address.

Temporary administrative relief

The Secretary of Homeland Security, for humanitarian purposes or to ensure family unity, may provide temporary administrative relief to any alien who— (1)was lawfully present in the United States on August 29, 2005; (2)was on such date the spouse, parent, or child of an individual who died or was disabled as a consequence of a specified hurricane disaster; and (3)is not otherwise entitled to relief under any other provision of this Act.

Employment verification during effectiveness of major disaster declaration

(a)

In general

Section 274A(b)(1) of the Immigration and Nationality Act (8 U.S.C. 1324a(b)(1)) is amended— (1)in subparagraph (A), by striking The person and inserting Subject to subparagraph (F), the person; and (2)by adding at the end the following:

(F)

Special rule during major disaster declaration

In a case in which the President has declared a major disaster under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.), the Secretary of Homeland Security may provide, in the Secretary’s sole and unreviewable discretion and only during the period in which such declaration is in effect, that a person or other entity hiring, recruiting, or referring an individual for employment in the United States is not required to make the attestation or conduct the verification required under subparagraph (A) until, at the latest, 90 days after the hiring, recruitment, or referral, if the individual hired, recruited or referred attests under penalty of perjury at the time of being hired, recruited, or referred that the individual does not possess the documents necessary to satisfy clause (i) or (ii) of subparagraph (A) as a result of such disaster.

(b)

Conforming amendment

Section 274A(b)(2) of the Immigration and Nationality Act (8 U.S.C. 1324a(b)(2)) is amended by adding at the end the following:

Paragraph (1)(F) shall not be construed to affect the obligation under the preceding sentence.

(c)

Effective date

The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to hiring, recruitment, or referral of an individual for employment in the United States occurring on or after August 29, 2005.

10.

Replacement of documents evidencing identity and employment authorization for victims of Hurricane Katrina

(a)

Immediate assistance

(1)

Document replacement

The Secretary of Homeland Security is authorized to provide immediate assistance in States in which persons displaced by a specified hurricane disaster are residing for the purpose of replacing for such persons documents that were— (A)previously issued by the Secretary and described in subparagraph (B), (C), or (D) of section 274A(b)(1) of the Immigration and Nationality Act (8 U.S.C. 1324a(b)(1)); and (B)lost, stolen, or destroyed due to such disaster. (2)

Substitute

Where replacement of a document described in paragraph (1) is not feasible, the Secretary of Homeland Security may provide to a displaced person described in such paragraph a temporary substitute document. (b)

Procedures for document replacement

The Secretary of Homeland Security shall ensure that, when the Secretary replaces (or provides a temporary substitute for) a document relating to an alien and described in subparagraph (B), (C), or (D) of section 274A(b)(1) of the Immigration and Nationality Act (8 U.S.C. 1324a(b)(1)) that was lost, stolen, or destroyed due to a specified hurricane disaster, the Secretary— (1)authenticates information using biometric identifiers contained in records of the Department of Homeland Security; and (2)annotates the records in U.S. Citizenship and Immigration Services information systems in such a way as to indicate that the replacement or substitute document was issued in the absence of an original due to such disaster. (c)

Waiver of fees for database access

(1)

U.S. Citizenship and Immigration Services

The Director of U.S. Citizenship and Immigration Services is authorized to waive fees and costs associated with a request, made by a person or agency described in paragraph (2), for use of the Verification Information System database associated with the Systematic Alien Verification for Entitlements Program in order to verify immigration status or employment eligibility with respect to a displaced person described in subsection (a)(1). (2)

Requesting persons

The persons described in this paragraph are as follows: (A)Employers. (B)State or local government agencies. (C)The American National Red Cross. (D)Organizations described in section 501(c)(3) of the Internal Revenue Code of 1986 and exempt from tax under section 501(a) of such Code whose mission is to assist displaced persons described in subsection (a)(1).

11.

Age-out protections

In administering Federal immigration laws, the Secretary of Homeland Security may grant any application or benefit notwithstanding the applicant or beneficiary (including a derivative beneficiary of a principal applicant or beneficiary) reaching an age that would render the applicant or beneficiary ineligible for the relief or benefit sought, if the failure to meet the age requirement is a consequence of a specified hurricane disaster.

12.

Evidence of death, disability, or loss of employment

(a)

In General

The Secretary of Homeland Security shall establish appropriate standards for evidence demonstrating, for purposes of this Act, that any of the following occurred as a consequence of a specified hurricane disaster. (1)Death. (2)Disability. (3)Loss of employment due to physical damage to, or destruction of, a business. (b)

Death certificates

The standards established under subsection (a) shall authorize the Secretary to make a determination of death in the absence of a death certificate, where appropriate. (c)

Affidavit of surviving spouse

For purposes of a benefit under section 2, or subsection (b) or (c) of section 4, that is conditioned on the beneficiary having been the spouse of an individual who died as a consequence of a specified hurricane disaster, the standards established under subsection (a) shall authorize the Secretary to make a determination of death based on the sworn affidavit of such surviving spouse, in the absence of evidence to the contrary.

13.

Waiver of Regulations

The Secretary of Homeland Security shall carry out this Act as expeditiously as possible. The Secretary of Homeland Security is not required to promulgate regulations prior to implementing this Act.

14.

Definitions

(a)

Application of Immigration and Nationality Act Provisions

Except as otherwise specifically provided in this Act, the definitions used in the Immigration and Nationality Act (excluding the definitions applicable exclusively to title III of such Act) shall apply in the administration of this Act. (b)

Specified Hurricane Disaster

For purposes of this Act, the term specified hurricane disaster means any major disaster resulting from Hurricane Katrina declared by the President under the Robert T. Stafford Disaster and Emergency Assistance Act (42 U.S.C. 5121 et seq.).