Short title

This Act may be cited as the

Lance Corporal Jose Gutierrez Act of 2008

Facilitating naturalization for military personnel

(a)

In general

Any person who served honorably as a member of the Armed Forces in support of contingency operations (as defined in section 101(a)(13) of title 10, United States Code) shall be eligible for naturalization pursuant to section 329 of the Immigration and Nationality Act (8 U.S.C. 1440) as if the person had served during a period designated by the President under such section 329. (b)

Naturalization through service in the Armed Forces of the United States

Section 328 of the Immigration and Nationality Act (8 U.S.C. 1439) is amended— (1)in subsection (a), by striking six months and inserting one year; (2)by striking subsection (c); (3)in subsection (d), by striking six months and inserting one year; and (4)by redesignating subsections (d), (e), and (f) as subsections (c), (d), and (e), respectively.

Facilitating removal of conditional status for military personnel and their families

(a)

Period for filing petition

Section 216(d)(2) of the Immigration and Nationality Act (8 U.S.C. 1186a(d)(2)) is amended— (1)in subparagraph (A), by striking subparagraph (B), and inserting subparagraphs (B) and (D),; and (2)by adding at the end the following:

(D)

Filing of petitions during military service

In the case of an alien who is serving as a member of the Selected Reserve of the Ready Reserve or in an active-duty status in the military, air, or naval forces of the United States during the 90-day period described in subparagraph (A), the alien may file the petition under subsection (c)(1)(A) during the 6-month period beginning on the date on which the alien is discharged from such service.

(b)

Requirements of timely petition and interview for removal of condition

Section 216(c)(1)(B) of the Immigration and Nationality Act (8 U.S.C. 1186a(a)(1)) is amended by inserting or serving in the Armed Forces at the time of the interview after deceased.

Factors to consider in initiating removal proceedings against active duty military personnel or veterans

Section 239 of the Immigration and Nationality Act (8 U.S.C. 1229a) is amended by adding at the end the following:

(f) (1)A notice to appear shall not be issued against an alien who served honorably at any time in the Armed Forces of the United States, and who, if separated from such service, separated under honorable conditions, without prior approval from the Director of the United States Citizenship and Immigration Services or the Assistant Secretary of Homeland Security for U.S. Immigration and Customs Enforcement. (2)In determining whether to issue a notice to appear against such an alien, the Director or the Assistant Secretary shall consider the alien’s eligibility for naturalization under section 328 or 329, as well as the alien’s record of military service, grounds of deportability applicable to the alien, and any hardship to the Armed Services, the alien, and his or her family if the alien were to be placed in removal proceedings. (3)An alien who served honorably at any time in the Armed Forces of the United States, and who, if separated from such service, separated under honorable conditions, shall not be removed from the United States under subparagraph (A)(i) or (B)(iii) of section 235(b)(1), section 238, or section 241(a)(5).

Discretionary relief for active duty military personnel, veterans, and family members in removal proceedings

(a)

Grounds of inadmissibility

Section 212 of the Immigration and Nationality Act (8 U.S.C. 1182) is amended by inserting after subsection (b) the following:

(c)

Military service personnel and family members

(1)

In general

With respect to an alien who served honorably at any time in the Armed Forces of the United States, and who, if separated from such service, separated under honorable conditions, or an alien who is the spouse, child, son, daughter, parent, or minor sibling of a member serving in the Armed Forces of the United States— (A)paragraphs (4), (5), (6)(A), (7)(A), and (9)(B) of subsection (a) shall not apply; (B)the Secretary of Homeland Security, or the Attorney General, shall not waive— (i)subsection (a)(2)(B), if the alien actually was incarcerated for 5 years or more for the offenses described in such subsection; (ii)subparagraph (C), (D), (G), or (H) of subsection (a)(2); (iii)subparagraph (A), (B), (C), (E), or (F) of subsection (a)(3); (iv)subsection (a)(6)(E); (v)subparagraph (A) or (C) of subsection (a)(10); or (vi)subsection (a)(10)(D), if the alien has received a conviction, award, compromise, settlement, or injunction for an offense described in clause (i) of such subsection, and if the court finds that the alien did not reasonably believe at the time such violation that the alien was a citizen; and (C)the Secretary of Homeland Security, or the Attorney General, may waive any other provision of subsection (a). (2)

Waiver factors

In making a determination under paragraph (1)(C), the following factors may be considered: (A)The grounds of inadmissibility applicable to the alien. (B)The alien’s service in the United States military, or the degree to which the alien’s removal would affect a close family member who is serving or has served in the Armed Forces. (C)The length of time the alien has lived in the United States. (D)The degree to which the alien would be impacted by his or her removal from the United States. (E)The existence of close family ties within the United States. (F)The degree to which the alien’s removal would adversely affect the alien’s United States citizen, or lawful permanent resident, parents, spouses, children, sons, daughters, or siblings. (G)The alien’s history of employment in the United States, including whether the alien has been self-employed or has owned a business. (H)The degree to which the alien’s removal would adversely affect the alien’s United States employer or business. (I)The degree to which the alien has ties to the alien’s community in the United States or has contributed to the Nation through community, volunteer, or other activities.

(b)

Grounds of deportability

Section 237 of the Immigration and Nationality Act (8 U.S.C. 1227) is amended by adding at the end the following:

(d)

Military service personnel and family members

(1)

In general

With respect to an alien who served honorably at any time in the Armed Forces of the United States, and who, if separated from such service, separated under honorable conditions, or an alien who is the spouse, child, son, daughter, parent, or minor sibling of a member serving in the Armed Forces of the United States— (A)paragraphs (1)(D), (3)(A), and (5) of subsection (a) shall not apply; (B)the Secretary of Homeland Security, or the Attorney General, shall not waive— (i)subsection (a)(1)(E); (ii)subsection (a)(2)(A)(ii), if the alien actually was incarcerated for 5 years or more for the offenses described in such subsection; (iii)subsection (a)(2)(A)(iii), if the aggravated felony involved was an offense described in subparagraph (A), (B), (C), (D), (E)(i), (H), (I), (K)(i), (K)(ii), (K)(iii), (L)(i), (L)(ii), (L)(iii), (M)(ii), (R), (S), or (U) of section 101(a)(43); (iv)clause (iv) or (v) of subsection (a)(2)(A); (v)clause (i) or (ii) of subsection (a)(2)(D); (vi)subsection (a)(2)(D)(iii), if the offense is a violation of the Trading With the Enemy Act; (vii)subsection (a)(2)(D)(iv), if the offense is a violation of section 278; (viii)subparagraph (A), (B), (C)(i), (D), or (E) of subsection (a)(4); or (ix)subsection (a)(6)(A), if the alien has received a conviction, award, compromise, settlement, or injunction for an offense described in such subsection, and if the court finds that the alien did not reasonably believe at the time such violation that the alien was a citizen; and (C)the Secretary of Homeland Security, or the Attorney General, may waive any other provision of subsection (a). (2)

Waiver factors

In making a determination under paragraph (1)(C), the following factors may be considered: (A)The grounds of deportability applicable to the alien. (B)The alien’s service in the United States military, or the degree to which the alien’s removal would affect a close family member who is serving or has served in the Armed Forces. (C)The length of time the alien has lived in the United States. (D)The degree to which the alien would be impacted by his or her removal from the United States. (E)The existence of close family ties within the United States. (F)The degree to which the alien’s removal would adversely affect the alien’s United States citizen, or lawful permanent resident, parents, spouses, children, sons, daughters, or siblings. (G)The alien’s history of employment in the United States, including whether the alien has been self-employed or has owned a business. (H)The degree to which the alien’s removal would adversely affect the aliens United States employer or business. (I)The degree to which the alien has ties to the alien’s community in the United States or has contributed to the Nation through community, volunteer, or other activities.

Timely reunification of military personnel and their nuclear families

Section 201(b)(1) of the Immigration and Nationality Act (8 U.S.C. 1151(b)(1)) is amended by adding at the end the following:

(F)Aliens who are eligible for an immigrant visa under paragraph (2)(A) of section 203(a) and are either the spouse or child of an alien who is serving in the Armed Forces of the United States.

Relief for immediate family members of active duty personnel

(a)

In general

The Secretary of Homeland Security shall adjust the status of an alien described in subsection (b) to that of an alien lawfully admitted for permanent residence if the alien— (1)applies for such adjustment, and is physically present in the United States on the date the application is filed; (2)is admissible to the United States as an immigrant, except as provided in subsection (d); and (3)pays a fee, as determined by the Secretary, for the processing of such application. (b)

Eligible aliens

(1)

In general

The benefits provided in subsection (a) shall apply only to an alien who is a parent, spouse, child, son or daughter, or minor sibling of an eligible member of the Armed Forces, as defined in subsection (c). (2)

Posthumous benefits

An alien described in paragraph (1) shall continue to be eligible for adjustment under this section for 2 years after the death of an eligible member of the Armed Forces whose death was the result of injury or disease incurred in or aggravated by his or her service in the Armed Forces. (c)

Eligible members of the Armed Forces

In this section, eligible member of the Armed Forces means any person who— (1)is serving or has served honorably as a member of the Selected Reserve of the Ready Reserve or in an active-duty status in the military, air, or naval forces of the United States during a period beginning February 28, 1961, and ending on a date designated by the President by Executive order as of the date of termination of the Vietnam hostilities, or thereafter during any other period which the President by Executive order shall designate as a period in which Armed Forces of the United States are or were engaged in military operations involving armed conflict with a hostile foreign force; and (2)if separated from the service described in paragraph (1), was separated under honorable conditions. (d)

Waiver of certain grounds of inadmissibility

For the purpose of adjustment of status under this section: (1)Paragraphs (4), (5), (6)(A), (7)(A), and (9)(B) of section 212(a) of the Immigration and Nationality Act (8 U.S.C. 1182(a)) shall not apply. (2)The Secretary of Homeland Security, or the Attorney General, shall not waive the following provisions of section 212 of the Immigration and Nationality Act (8 U.S.C. 1182): (A)Subsection (a)(2)(B), if the alien actually was incarcerated for 5 years or more for the offenses described in such subsection. (B)Subparagraph (C), (D), (G), or (H) of subsection (a)(2). (C)Subparagraph (A), (B), (C), (E), or (F) of subsection (a)(3). (D)Subsection (a)(6)(E). (E)Subparagraph (A) or (C) of subsection (a)(10). (F)Subsection (a)(10)(D), if the alien has received a conviction, award, compromise, settlement, or injunction for an offense described in clause (i) of such subsection, and if the court finds that the alien did not reasonably believe at the time such violation that the alien was a citizen. (3)The Secretary of Homeland Security, or the Attorney General, may waive any other provision of section 212(a) of the Immigration and Nationality Act (8 U.S.C. 1182(a)) for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.