Application for change in status

(a)

In general

Chapter 5 of title II of the Immigration and Nationality Act (8 U.S.C. 1255 et seq.) is amended by inserting after section 245A the following:

245B.

Adjustment of status of certain entrants before January 7, 2004, to that of persons admitted for lawful residence

(a)

Conditional resident orange card

(1)

Issuance

Not later than 30 days after the date on which an alien submits, in person at any location designated by the Secretary of Homeland Security, a facially valid application for adjustment of status under this section, the Secretary shall issue the alien a conditional resident orange card (referred to in this section as the orange card) if the alien has passed a background and criminal records check conducted by the Secretary under paragraph (3) and is not otherwise ineligible for conditional resident status under this section. If the background and criminal records check is completed after the 30-day period described in this paragraph, the orange card shall be issued to the alien immediately after the alien passes such check. (2)

Application form

(A)

In general

Not later than 90 days after the date of the enactment of this section, the Secretary of Homeland Security shall make available, on the Internet and at each post office in the United States— (i)an application for adjustment of status that meets the requirements described in subparagraphs (B) and (C); and (ii)a description of the point system developed pursuant to subsection (c)(2). (B)

Contents

The application form described in subparagraph (A) shall contain spaces for the alien to record— (i)the full name of the alien, including maiden name and any aliases used; (ii)the date of birth of the alien; (iii)the country of origin or nationality of the alien; (iv)the date on which the alien last entered the United States and the means of such entry; (v)a preexisting alien number, if applicable; (vi)any social security number or tax identification number used by the alien; (vii)the current physical address of the alien and the mailing address of the alien, if different; (viii)the current telephone number and e-mail address of the alien, if applicable; (ix)the information described in clauses (i) through (viii) for the spouse or children of the alien who are applying for a adjustment of status under this section; (x)a sworn statement that the alien— (I)is unlawfully present in the United States; (II)intends to apply for adjustment of status under this section; and (III)is eligible for conditional resident status; and (xi)any other information that the Secretary requires the alien to submit. (C)

Penalties

The application form described in subparagraph (A) shall— (i)include the last date on which an application for adjustment of status may be submitted; (ii)clearly identify, in English and Spanish, the penalties for submitting false information in an application under this subsection; and (iii)require each applicant to sign the application, under penalty of perjury and inadmissibility, to attest to its accuracy. (3)

Security and law enforcement background checks

(A)

Principal alien

An alien may not be issued an orange card unless the alien submits biometric data, including a photograph and fingerprints, in accordance with procedures established by the Secretary of Homeland Security. Not later than 90 days after the date on which fingerprints are obtained from an alien under this subparagraph, the Secretary shall compare the alien’s name and fingerprints against appropriate Federal databases for information relating to criminal, national security, or other law enforcement actions to determine if the alien is eligible for an orange card. (B)

Family members

The spouse and any children of an alien described in subparagraph (A) who are not younger than 13 years of age and are not lawfully present in the United States shall also submit biometric data, including a photograph and fingerprints, in accordance with procedures established by the Secretary of Homeland Security. Not later than 90 days after the date on which fingerprints are obtained from a spouse or child under this subparagraph, the Secretary shall compare the alien’s name and fingerprints against appropriate Federal databases for information relating to criminal, national security, or other law enforcement actions to determine if the spouse or child is eligible for an orange card. (4)

Features

Each orange card shall— (A)contain the alien’s full name and physical address; (B)include fraud-resistant features and biometric identifiers, as determined by the Secretary; (C)meet all current requirements established by the Secretary of Homeland Security for travel documents, including the requirements under section 403 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note); (D)include, in bold letters, the following: This card is evidence of conditional resident status and work authorization.; and (E)clearly indicate the date on which the card is scheduled to expire. (5)

Expiration

(A)

In general

An orange card issued to an alien shall expire on the earlier of— (i)81/2 years after the date on which the card is issued to the alien; (ii)the date on which the Secretary of Homeland Security determines that the alien is inadmissible, ineligible for such status, or cannot possibly earn sufficient points under subsection (c)(2) to be granted a adjustment of status under subsection (c); (iii)the date on which the Secretary revokes the alien’s conditional resident status under subparagraph (C); or (iv)the date on which the Secretary adjusts the alien’s status to that of an alien lawfully admitted for permanent residence. (B)

Waiver

The expiration date described in subparagraph (A)(i) may be extended by the Secretary for an alien whose application for adjustment of status has not been processed due to a backlog of applications. (C)

Revocation

(i)

In general

Except as provided under clause (ii), the Secretary may revoke the conditional resident status of an alien who fails to maintain employment for more than 90 consecutive days. (ii)

Exceptions

Clause (i) shall not apply to an alien during any period in which the alien— (I)is enrolled as a full time student; (II)cannot demonstrate employment based on a physical or mental disability or as a result of pregnancy; or (III)is older than 65 years of age. (6)

Benefits of conditional resident status

An alien who is granted conditional resident status and is issued an orange card— (A)shall be granted employment authorization pending final adjudication of the alien’s application for adjustment of status; (B)shall be granted permission to travel abroad pursuant to regulation pending final adjudication of the alien’s application for adjustment of status; (C)shall not be detained, determined inadmissible or deportable, or removed pending final adjudication of the alien’s application for adjustment of status, unless the Secretary determines that the alien is inadmissible or ineligible for such adjustment of status under subsection (c); and (D)shall not be considered an unauthorized alien as defined in section 274A(i) until such time as employment authorization under paragraph (1) is denied. (7)

Stay of removal

On or before the date described in subsection (b)(3)(A), a court may grant a stay of removal for an alien who can demonstrate prima facie eligibility for conditional resident status under this subsection. (8)

Enumeration of Social Security number

The Secretary of Homeland Security, in coordination with the Commissioner of Social Security, shall implement a system to allow for the enumeration of a Social Security number and production of a Social Security card at the time the Secretary issues an orange card to an alien under this subsection. (b)

Application process

(1)

Commencement

The Secretary of Homeland Security shall begin accepting applications for adjustment of status under this section not later than 30 days after the date on which the application form described in subsection (a)(2) is first made publicly available. The Secretary shall ensure that the application process is secure and incorporates antifraud protection. (2)

In person

Each alien applying for adjustment of status under this section shall submit, in person at any of the locations designated by the Secretary, 2 copies of a completed application for adjustment of status. In addition to the information described in subsection (a)(2), the application shall include a current photograph of the alien and a full set of fingerprints, which shall be collected at the time the application is submitted. The official shall imprint each copy with the name of the application service center and the date on which the application was submitted and return 1 copy of the application to the applicant. (3)

Application deadline

(A)

In general

An alien is ineligible for adjustment of status unless the alien submits an application for adjustment of status not later than 180 days after the date on which the application form is first made publicly available. The provisions of paragraph (5) and (6) of subsection (c) shall apply to applications filed under this section. (B)

Update

An alien may update an application submitted before the deadline described in subparagraph (A) by submitting evidence that the alien has earned sufficient points to qualify for adjustment of status under this section or updating any other information described in subsection (a)(2)(B). Such update shall be submitted not later than 8 years after the date on which the initial application was submitted. (c)

adjustment of status

(1)

Adjustment of status

(A)

In general

Notwithstanding any other provision of law, the Secretary of Homeland Security shall adjust the status of an alien who has a valid orange card to that of an alien lawful admitted for permanent residence if the alien satisfies the requirements under this paragraph and earns at least 65 percent of the base points available under paragraph (2). (B)

Continuous physical presence

(i)

In general

The alien shall establish that the alien— (I)was physically present in the United States on or before January 7, 2004; (II)was not legally present in the United States on January 7, 2004, under any classification set forth in section 101(a)(15); and (III)did not depart from the United States since January 7, 2004, for more than brief periods. (ii)

Legally present

For purposes of this subparagraph, an alien who has violated any conditions of the alien’s visa shall be considered not to be legally present in the United States. (C)

Evidence of physical presence and work

(i)

Conclusive documents

An alien may satisfy the physical presence requirements under subparagraph (B), and earn base points for work and physical presence under paragraph (2)(B), by submitting at least 2 of the following documents for each period of physical presence or work, which shall be considered conclusive evidence of physical presence or work in the United States: (I)Records maintained by the Social Security Administration. (II)Records maintained by an employer, such as pay stubs, time sheets, or employment work verification. (III)Records maintained by the Internal Revenue Service. (IV)Records maintained by a union or day labor center. (V)Records maintained by any other government agency, such as worker compensation records, disability records, or business licensing records. (VI)Any other document that the Secretary determines to be reliable to establish physical presence. (ii)

Other documents

An alien who is unable to submit a document described in clause (i) may satisfy the physical presence requirements under subparagraph (B), and earn base points for work and physical presence under paragraph (2)(B), by submitting to the Secretary at least 3 other types of reliable documents that provide evidence of physical presence for each required period, including— (I)bank records; (II)business records; (III)rent payment records; (IV)school records; or (V)remittance records. (iii)

Burden of proof

(I)

Alien

An alien applying for adjustment of status under this subsection has the burden to prove, by a preponderance of the evidence, that the alien has satisfied the physical presence requirement under subparagraph (B). (II)

Secretary

If the alien meets the burden of proof described in subclause (I), the Secretary of Homeland Security has the burden to disprove the alien’s evidence with a showing that negates the reasonableness of the inference to be drawn from the evidence. (D)

Admissible under immigration laws

The alien shall establish that the alien is not inadmissible under section 212(a), except for any provision of that section that is waived under paragraph (4). (E)

Fees; fines

An alien who files an application for adjustment of status shall pay— (i)a fee commensurate with levels charged by the Secretary of Homeland Security for other applications for adjustment of status; and (ii)a fine of $2,000, if the alien is not less than 18 years of age. (F)

Payment of income taxes

(i)

In general

Before the status of an alien is adjusted under this section to that of an alien lawful admitted for permanent residence, the alien shall establish the payment of any applicable Federal or State income tax liability by establishing that— (I)no such income tax liability exists; or (II)all outstanding income tax liabilities have been paid. (ii)

IRS cooperation

The Secretary of the Treasury shall establish rules and procedures under which the Commissioner of Internal Revenue shall provide documentation to an alien upon request to establish the payment of income taxes under this subparagraph. (iii)

Limitation

An alien who is required to establish the payment of income taxes under this subparagraph, or who otherwise satisfies the requirements under clause (i), may not— (I)collect any income tax refund for any taxable year before 2006; or (II)file any claim for the Earned Income Tax Credit or any other tax credit otherwise allowable under the tax code before any taxable year before 2006. (iv)

Applicable federal or state income tax liability

In this subparagraph, the term applicable Federal or State income tax liability means liability for Federal or State income taxes, including penalties and interest, owed by the alien. (v)

Savings provision

Nothing in this subparagraph shall affect any income tax liability or other financial obligation of the alien under Federal or State law. (G)

Basic citizenship skills

(i)

In general

Except as provided under clause (ii), the alien shall demonstrate compliance with the requirements under section 312(a) before the alien’s status is adjusted under this subsection. (ii)

Exceptions

(I)

Mandatory

Clause (i) shall not apply to any person who is unable to comply with those requirements because of a physical or developmental disability or mental impairment. (II)

Discretionary

The Secretary of Homeland Security may waive any requirement referred to in clause (i). (H)

Medical examination

The alien may be required, at the alien’s expense, to undergo an appropriate medical examination, including a determination of immunization status, that conforms to generally accepted professional standards of medical practice. (I)

Military selective service

If the alien is required to register under section 3 of the Military Selective Service Act (50 U.S.C. App. 453), the alien shall establish that he has registered under such section. (J)

Adjustment of status

(i)

In general

Except as provided in clause (ii), the Secretary of Homeland Security may not adjust the status of an alien under this section to that of an alien lawfully admitted for permanent residence until the later of— (I)the date on which the Secretary determines that the priority dates have become current for the class of aliens whose family-based or employment-based petitions for permanent residence were pending on the date of the enactment of this Act; or (II)8 years after the date on which the application for adjustment of status becomes available under subsection (a)(2). (ii)

Authorization

The Secretary may, on a case-by-case basis, adjust the status of an alien under this section to that of an alien lawfully admitted for permanent residence before the date described in clause (i). (iii)

Notification of provisional approval

The Secretary shall notify each alien who is determined to be eligible for adjustment of status under this section, that the alien has been provisionally approved for adjustment of status to that of a person admitted for permanent residence as of the date described in clause (i). (K)

Final adjudication

The Secretary of Homeland Security shall ensure that all applications for adjustment of status are adjudicated not later than 9 years after the date on which the application form is first made available under subsection (a)(2). (2)

Point system

(A)

In general

Not later than 90 days after the date of the enactment of this section, the Secretary of Homeland Security shall establish, by regulation, a point system through which an alien to whom an orange card has been issued may become eligible for a adjustment of status under this subsection if, in addition to complying with the requirements under subsection (a), the alien earns points equal to at least 65 percent of the base points available under subparagraph (B), which may include points accumulated under subparagraph (C), before the end of the 8-year period beginning on the date on which the application for adjustment of status becomes available under subsection (a)(2). (B)

Base points

(i)

Work in the united states

Not more than 5 percent of the base points available under this subparagraph shall be available to an alien for each year in which the alien worked in the United States, as determined by the Secretary, up to a cumulative total of not more than 30 percent of the base points. Not less than 15 percent of the base points available under this subparagraph shall be available under this clause. (ii)

Presence in the united states

Not more than 5 percent of the base points shall be available to an alien for each year in which the alien was present in the United States, as determined by the Secretary, up to a cumulative total of not more than 20 percent of the base points. Not less than 10 percent of the base points available under this subparagraph shall be available under this clause. (iii)

Civic engagement

Not less than 5 percent and not more than 20 percent of the base points shall be available to an alien for the following group of activities: (I)The alien has paid all Federal and State income taxes owed during employment in the United States on or before such taxes were due. (II)The alien has not been convicted of violating any Federal or State law during the alien’s presence in the United States (except for illegal entry and remaining in the United States beyond authorized period). (III)The alien has provided reliable documentation of community service in the United States. (iv)

Education

Not less than 15 percent and not more than 30 percent of the base points shall be available to an alien for the following group of activities: (I)The alien has completed primary school. (II)The alien has earned a certificate of graduation from a school providing secondary education, or the recognized equivalent of such a certificate. (III)The alien possesses a license in a skilled trade. (v)

Family relations to nationals of the United States

Not less than 10 percent and not more than 20 percent of the base points shall be available to an alien under the following circumstances: (I)The alien was the parent of a United States citizen on January 1, 2007. (II)The alien has been married to a citizen or legal permanent resident of the United States since January 1, 2007. (vi)

Language ability

Not less than 5 percent and not more than 15 percent of the base points shall be available to an alien based on English proficiency, as determined by the Secretary. (C)

Extra points for additional contributions to society

In addition to the points available under subparagraph (B), an alien may earn points under this subparagraph equal to not more than— (i)a cumulative total of 15 percent of the base points available under subparagraph (B) if the alien has successfully completed an associates, bachelors, masters, or doctorate degree from an accredited college or university; (ii)20 percent of such base points if the alien is eligible for honorable release, or has been honorably released, from service in the Armed Forces of the United States; (iii)10 percent of such base points if the alien owned a business that employed at least 2 nonrelatives in the United States for at least 18 months; (iv)5 percent of such base points if the alien owns a residence in the United States; and (v)20 percent of such base points for other circumstances determined by the Secretary. (D)

Rulemaking

The Secretary of Homeland Security shall promulgate regulations to establish the number of points available for each of the criteria described in this paragraph. (3)

Spouses and children

(A)

Adjustment of status

(i)

In general

Except as otherwise provided under this section, the Secretary of Homeland Security shall adjust the status of the spouse, or child who was younger than 21 years of age on the date of enactment of this Act, of an alien whose status is adjusted under paragraph (1) to that of a lawful permanent resident. (ii)

Victims of domestic violence

The Secretary shall adjust the status of an alien who, before January 7, 2004, was the spouse or child of an alien who is eligible for adjustment of status under paragraph (1), if— (I)the termination of the qualifying relationship was connected to domestic violence; or (II)the spouse or child has been battered or subjected to extreme cruelty by the spouse or parent described in this subparagraph. (iii)

Application of other law

In acting on applications filed under this subparagraph with respect to aliens who have been battered or subjected to extreme cruelty, the Secretary shall apply— (I)the provisions of section 204(a)(1)(J); and (II)the protections, prohibitions, and penalties under section 384 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1367). (B)

Grounds of inadmissibility not applicable

In establishing admissibility to the United States, the spouse or child described in subparagraph (A) shall establish that he or she is not inadmissible under section 212(a), except for any provision of that section that is waived under paragraph (4). (4)

Grounds of inadmissibility

(A)

Applicable provisions

In determining an alien’s admissibility under paragraphs (1)(D) and (3)(B), the Secretary of Homeland Security may not waive, under subparagraph (C)(i)— (i)paragraph (1) (relating to health); (ii)paragraph (2) (relating to criminals); (iii)paragraph (3) (relating to security and related grounds); or (iv)subparagraphs (A) and (C) of paragraph (10) (relating to polygamists and child abductors). (B)

Grounds of inadmissibility not applicable

Paragraphs (5), (6) (except subparagraphs (D) and (E)), (7), (9) (other than subparagraph (C)(i)(II)), and (10)(B) of section 212(a) shall not apply to an alien who is applying for an adjustment of status under this subsection. (C)

Waiver of other grounds

(i)

In general

Except as provided under subparagraph (A), the Secretary of Homeland Security may waive, for individual aliens, the application of any provision of section 212(a) for humanitarian purposes, to ensure family unity, or if such waiver is otherwise in the public interest. (ii)

Construction

Nothing in this subparagraph may be construed to affect the authority of the Secretary, other than under this subparagraph, to waive the provisions of section 212(a). (D)

Special rule for determination of public charge

An alien is not ineligible for adjustment of status under this subsection by reason of a ground of inadmissibility under section 212(a)(4) if the alien establishes a history of employment in the United States evidencing self-support without public cash assistance. (E)

Special rule for individuals where there is no commercial purpose

An alien is not ineligible for adjustment of status under this subsection by reason of a ground of inadmissibility under section 212(a)(6)(E) if the alien establishes that the action referred to in that section was taken for humanitarian purposes, to ensure family unity, or was otherwise in the public interest. (F)

Applicability of other provisions

Sections 240B(d) and 241(a)(5) shall not apply with respect to an alien who is applying for adjustment of status under this subsection. (G)

Ineligibility

An alien is ineligible for an adjustment of status under this section if the alien has been convicted of a felony or more than 1 misdemeanor. (5)

Confidentiality of information

(A)

In general

Except as otherwise provided under this subsection, Federal agencies and officers and employees of such agencies may not— (i)use the information furnished by the applicant pursuant to an application filed under this section for any purpose other than to make a determination on the application; (ii)make any publication through which the information furnished by any particular applicant can be identified; or (iii)permit anyone other than the sworn officers and employees of such agency, bureau, or approved entity, as approved by the Secretary of Homeland Security, to examine individual applications that have been filed. (B)

Required disclosures

The Secretary of Homeland Security and the Secretary of State shall provide the information furnished pursuant to an application filed under this section, and any other information derived from such furnished information, to a duly recognized law enforcement entity in connection with a criminal investigation or prosecution or a national security investigation or prosecution, in each instance about an individual suspect or group of suspects, when such information is requested in writing by such entity. (C)

Criminal penalty

Any person who knowingly uses, publishes, or permits information to be examined in violation of this paragraph shall be fined not more than $10,000. (6)

Penalties for false statements in applications

(A)

Criminal penalty

(i)

Violation

It shall be unlawful for any person to— (I)file or assist in filing an application for adjustment of status under this section and knowingly and willfully falsify, conceal, or cover up a material fact or make any false, fictitious, or fraudulent statements or representations, or make or use any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry; or (II)create or supply a false writing or document for use in making such an application. (ii)

Penalty

Any person who violates clause (i) shall be fined in accordance with title 18, United States Code, imprisoned not more than 5 years, or both. (B)

Inadmissibility

An alien who is convicted of a crime under subparagraph (A) is inadmissible to the United States. (C)

Exception

Notwithstanding subparagraphs (A) and (B), any alien or other entity (including an employer or union) that submits an employment record that contains incorrect data that the alien used in order to obtain such employment, shall not have violated this subsection. (7)

Nonapplicability of numerical limitations

The number of immigrant visas authorized to be issued under any this Act shall not be reduced as a result of the adjustment of status of an alien under this subsection. (8)

Termination of proceedings

An alien in removal proceedings who establishes prima facie eligibility for adjustment of status under this subsection shall be entitled to termination of the proceedings pending the outcome of the alien’s application, unless the Secretary determines that the alien is inadmissible or ineligible for such adjustment of status under subsection (d). (9)

Ineligibility for public benefits

For purposes of section 403 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1613), an alien whose status has been adjusted under this subsection shall not be eligible for any Federal means-tested public benefit unless the alien meets the alien eligibility criteria for such benefit under title IV of such Act (8 U.S.C. 1601 et seq.). (10)

Relationships of application to certain orders

The Secretary of Homeland Security may stay the deportation of an alien who is present in the United States and has been ordered excluded, deported, removed, or to depart voluntarily from the United States or is subject to reinstatement of removal under any provision of this Act if the alien demonstrates prima facie eligibility for adjustment of status under this subsection. If the Secretary grants the application, the order shall be canceled. If the Secretary of Homeland Security renders a final administrative decision to deny the application, such order shall be effective and enforceable. (11)

Application of other provisions

Nothing in this subsection shall preclude an alien who may be eligible for adjustment of status under this subsection from seeking such status under any other provision of law for which the alien may be eligible. (12)

Dissemination of information on adjustment program

During the 1-year period following the issuance of final regulations under subsection (d), the Secretary of Homeland Security, in cooperation with entities approved by the Secretary, shall broadly disseminate information respecting adjustment of status and the requirements for obtaining such status— (A)through television, radio, and print media sources to which such aliens would have access in the languages most commonly spoken in the 15 countries from which the most aliens arrived who would qualify for adjustment of status under this subsection; (B)to employers and labor unions to advise them of the rights and protections available to them; and (C)to workers who file applications under this section. (13)

Authorization of appropriations; use of amounts collected

(A)

Authorization of appropriations

There are authorized to be appropriated to the Secretary of Homeland Security such sums as may be necessary to commence the processing of applications filed under this section. (B)

Use of amounts collected

The Secretary shall deposit fees and fines received under paragraph (1)(E) in the Immigration Examinations Fee Account established under section 286 to be used, without fiscal year limitation, for— (i)implementing and processing applications under this section, including expedited processing of criminal and national security background checks; (ii)administrative and other expenses incurred in connection with the review of applications filed by immediate relatives of aliens applying for adjustment of status under this section; and (iii)border security purposes. (d)

Rulemaking

Not later than 180 days after the date of the enactment of the Immigrant Accountability Act of 2007, the Secretary of Homeland Security shall promulgate regulations to carry out this section. (e)

Statutory construction

Nothing in this section shall be construed to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person. (f)

Authorization of appropriations

There are authorized to be appropriated such amounts as may be necessary for facilities, personnel (including consular officers), training, technology, and processing necessary to carry out this section.

(b)

Clerical amendment

The table of contents of the Immigration and Nationality Act is amended by inserting after the item relating to section 245B the following:

Sec. 245B. Adjustment of status of certain entrants before January 7, 2004, to that of persons admitted for lawful residence.