II 110th CONGRESS 2d Session S. 3514 IN THE SENATE OF THE UNITED STATES September 18 (legislative day, September 17), 2008 Mr. Menendez introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To amend the Immigration and Nationality Act to promote family unity, and for other purposes.

1.

Short title

This Act may be cited as the Reuniting Families Act.

2.

Recapture of immigrant visas lost to bureaucratic delay

(a)

Worldwide level of employment-based immigrants

Subsection (d) of section 201 of the Immigration and Nationality Act (8 U.S.C. 1151) is amended to read as follows: (d)

Worldwide level of employment-based immigrants

(1)

In general

The worldwide level of employment-based immigrants under this subsection for a fiscal year is equal to the sum of— (A)140,000; plus (B)the number computed under paragraph (2); plus (C)the number computed under paragraph (3). (2)

Unused visa numbers from previous fiscal year

The number computed under this paragraph for a fiscal year is the difference, if any, between— (A)the worldwide level of employment-based immigrant visas established for the previous fiscal year; and (B)the number of visas actually issued under section 203(b), subject to this subsection, during the previous fiscal year. (3)

Unused visa numbers from fiscal years 1992 through 2007

The number computed under this paragraph is the difference, if any, between— (A)the difference, if any, between— (i)the sum of the worldwide levels of employment-based immigrant visas established for each of fiscal years 1992 through 2007; and (ii)the number of visas actually issued under section 203(b), subject to this subsection, during such fiscal years; and (B)the number of unused visas from fiscal years 1992 through 2007 that were issued after fiscal year 2007 under section 203(b), subject to this subsection. . (b)

Worldwide level of family-sponsored immigrants

Subsection (c) of section 201 of the Immigration and Nationality Act (8 U.S.C. 1151) is amended to read as follows: (c)

Worldwide level of family-sponsored immigrants

(1)

In general

Subject to subparagraph (B), the worldwide level of family-sponsored immigrants under this subsection for a fiscal year is equal to— (A)480,000; plus (B)the sum of— (i)the number computed under paragraph (2); plus (ii)the number computed under paragraph (3). (2)

Unused visa numbers from previous fiscal year

The number computed under this paragraph for a fiscal year is the difference, if any, between— (A)the worldwide level of family-sponsored immigrant visas established for the previous fiscal year; and (B)the number of visas actually issued under section 203(a), subject to this subsection, during the previous fiscal year. (3)

Unused visa numbers from fiscal years 1992 through 2007

The number computed under this paragraph is the difference, if any, between— (A)the difference, if any, between— (i)the sum of the worldwide levels of family-sponsored immigrant visas established for fiscal years 1992 through 2007; and (ii)the number of visas actually issued under section 203(a), subject to this subsection, during such fiscal years; and (B)the number of unused visas from fiscal years 1992 through 2007 that were issued after fiscal year 2007 under section 203(a), subject to this subsection. . (c)

Effective date

The amendments made by this section shall take effect 60 days after the date of the enactment of this Act.

3.

Reclassification of spouses and minor children of legal permanent residents as immediate relatives

(a)

In general

Paragraph (2) of section 201(b) of the Immigration and Nationality Act (8 U.S.C. 1151(b)) is amended to read as follows: (2)

Immediate relative

(A)

In general

(i)

Immediate relative defined

In this subparagraph, the term immediate relative means a child, spouse, or parent of a citizen of the United States or a child or spouse of a lawful permanent resident (and for each family member of a citizen or lawful permanent resident specified under this subparagraph, such individual's spouse or child who is accompanying or following to join the individual), except that, in the case of parents, such citizens shall be at least 21 years of age. (ii)

Previously issued visa

Aliens admitted under section 211(a) on the basis of a prior issuance of a visa under section 203(a) to their accompanying parent who is an immediate relative. (iii)

Spouse

An alien who was the spouse of a citizen of the United States or lawful permanent resident for not less than 2 years at the time of the citizen’s or resident’s death or, if married for less than 2 years at the time of the citizen’s or resident’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 and was not legally separated from the citizen or resident at the time of the citizen’s or resident’s death, and each child of such alien, shall be considered, for purposes of this subsection, an immediate relative after the date of the citizen’s or resident’s death if the spouse files a petition under section 204(a)(1)(A)(ii) before the earlier of— (I)2 years after such date; or (II)the date on which the spouse remarries. (iv)

Parents and children

An alien who was the child or parent of a citizen of the United States or a child of a lawful permanent resident at the time of the citizen’s or resident’s death if the alien files a petition under 204(a)(1)(A)(ii) within 2 years after such date or prior to reaching 21 years of age. (v)

Special rule

For purposes of this subparagraph, an alien who has filed a petition under clause (iii) or (iv) of section 204(a)(1)(A) remains an immediate relative if the United States citizen or lawful permanent resident spouse or parent loses United States citizenship or residence on account of the abuse. (B)

Birth during temporary visit abroad

Aliens born to an alien lawfully admitted for permanent residence during a temporary visit abroad. . (b)

Allocation of immigrant visas

Subsection (a) of section 203 of the Immigration and Nationality Act (8 U.S.C. 1153) is amended— (1)in paragraph (1), by striking 23,400 and inserting 38,000; (2)by striking paragraph (2) and inserting the following: (2)

Unmarried sons and unmarried daughters of permanent resident aliens

Qualified immigrants who are the unmarried sons or unmarried daughters (but are not the children) of an alien lawfully admitted for permanent residence shall be allocated visas in a number not to exceed 60,000, plus any visas not required for the class specified in paragraph (1). ; (3)in paragraph (3), by striking 23,400 and inserting 38,000; and (4)in paragraph (4), by striking 65,000 and inserting 90,000. (c)

Technical and conforming amendments

(1)

Rules for determining whether certain aliens are immediate relatives

Subsection (f) of section 201 of the Immigration and Nationality Act (8 U.S.C. 1151) is amended— (A)in paragraph (1), by striking paragraphs (2) and (3), and inserting paragraph (2),; (B)by striking paragraph (2); (C)by redesignating paragraphs (3) and (4) as paragraphs (2) and (3), respectively; and (D)in paragraph (3), as redesignated by subparagraph (C), by striking through (3) and inserting and (2). (2)

Numerical limitation to any single foreign state

Section 202 of the Immigration and Nationality Act (8 U.S.C. 1152) is amended— (A)in paragraph (4) of subsection (a)— (i)by striking subparagraphs (A) and (B); (ii)by redesignating subparagraphs (C) and (D) as subparagraphs (A) and (B), respectively; and (iii)in subparagraph (A), as redesignated by clause (ii), by striking section 203(a)(2)(B) and inserting section 203(a)(2); and (B)in subsection (e), in the flush matter following paragraph (3), by striking , or as limiting the number of visas that may be issued under section 203(a)(2)(A) pursuant to subsection (a)(4)(A). (3)

Allocation of immigration visas

Subsection (h) of section 203 of the Immigration and Nationality Act (8 U.S.C. 1153) is amended— (A)in paragraph (1)— (i)in the matter preceding subparagraph (A), by striking subsections (a)(2)(A) and (d) and inserting subsection (d); (ii)in subparagraph (A), by striking becomes available for such alien (or, in the case of subsection (d), the date on which an immigrant visa number became available for the alien's parent), and inserting became available for the alien's parent,; and (iii)in subparagraph (B), by striking applicable; (B)in paragraph (2), by striking The petition and all that follows through the end and inserting The petition described in this paragraph is a petition filed under section 204 for classification of the alien's parent under subsection (a), (b), or (c).; and (C)in paragraph (3), by striking subsections (a)(2)(A) and (d) and inserting subsection (d). (4)

Procedure for granting immigrant status

Section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) is amended— (A)in subsection (a)(1)— (i)in subparagraph (A)— (I)in clause (i), by inserting or lawful permanent resident after United States; (II)in clause (ii), by striking described in the second sentence of section 201(b)(2)(A)(i) also and inserting or an alien child or alien parent described in section 201(b)(2)(A); (III)in clause (iii)— (aa)in item (aa) of subclause (I), by inserting or legal permanent resident after citizen; and (bb)in subclause (II)— (AA)in item (aa)(AA) and item (aa)(BB), by inserting or legal permanent resident; after States each place that term appears; (BB)in item (aa)(CC), by inserting or legal permanent resident after citizen; (CC)in item (aa)(CC)(bbb), by inserting or legal permanent resident after citizenship; and (DD)in item (aa)(CC)(ccc), by inserting or legal permanent resident after citizen; (IV)in clause (iv)— (aa)by striking States, and inserting States or legal permanent resident,; (bb)by inserting or legal permanent resident after United States citizen; (cc)by inserting or resident after the citizen; and (dd)by inserting or resident after the alien's citizen; (V)in subclause (I) of clause (v), by inserting or legal permanent resident after citizen; and (VI)in clause (vi)— (aa)by inserting or legal permanent resident status after renunciation of citizenship; and (bb)by inserting or legal permanent resident after abuser's citizenship; (ii)by striking subparagraph (B); (iii)in subparagraph (C), by striking subparagraph (A)(iii), (A)(iv), (B)(ii), or (B)(iii) and inserting clause (iii) or (iv) of subparagraph (A); and (iv)in subparagraph (J), by striking or clause (ii) or (iii) of subparagraph (B); (B)by striking paragraph (2) of subsection (a); (C)in paragraph (1) of subsection (c), by striking or preference status; and (D)in subsection (h), by striking or a petition filed under subsection (a)(1)(B)(ii).

4.

Country limits

Paragraph (2) of section 202(a) of the Immigration and Nationality Act (8 U.S.C. 1152(a)) is amended by striking 7 percent (in the case of a single foreign state) or 2 percent and inserting 10 percent (in the case of a single foreign state) or 5 percent.

5.

Family unity

(a)

Exception to prohibition on unlawful presence for minors

Clause (iii) of section 212(a)(9)(B) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(9)(B)) is amended— (1)in subclause (I), by striking 18 and inserting 21; (2)by indenting subclause (V) 8 ems from the left margin; and (3)by adding at the end the following: (VI)Clause (i) shall not apply to an alien for whom an immigrant visa is available or was available on or prior to the date of enactment of the Reuniting Families Act, and is otherwise admissible to the United States for permanent residence. . (b)

Waiver of prohibition on unlawful presence for children of citizens and residents

Clause (v) of section 212(a)(9)(B) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(9)(B)) is amended— (1)by striking spouse or son or daughter and inserting spouse, son, daughter, or parent; (2)by striking extreme; (3)by inserting , son, daughter, or after lawfully resident spouse; and (4)by striking alien. and inserting alien or, if the Attorney General determines that a waiver is necessary for humanitarian purposes, to ensure family unity or is otherwise in the public interest.. (c)

Exceptions to prohibition on unlawful presence after previous immigration violation

Clause (ii) of section 212(a)(9)(C) of the Immigration and Nationality Act (8 U.S.C. 212(a)(9)(C)) is amended to read as follows: (ii)

Exceptions

Clause (i) shall not apply to an alien— (I)seeking admission more than 10 years after the date of the alien's last departure from the United States if, prior to the alien's reembarkation at a place outside the United States or attempt to be readmitted from a foreign contiguous territory, the Secretary of Homeland Security has consented to the alien's reapplying for admission; or (II)for whom an immigrant visa is available or was available on or prior to the date of enactment of the Reuniting Families Act, and is otherwise admissible to the United States for permanent residence. .

6.

Relief for orphans and spouses

(a)

In general

(1)

Special rule for orphans and spouses

In applying clauses (iii) and (iv) of section 201(b)(2)(A) of the Immigration and Nationality Act, as added by section 3(a), to an alien whose citizen or lawful permanent resident relative died before the date of the enactment of this Act, the alien relative may (notwithstanding the deadlines specified in either such clause) file the classification petition under clause (ii) of section 204(a)(1)(A) of such Act, as amended by section 3(c)(4)(A)(i)(II), not later than 2 years after the date of the enactment of this Act. (2)

Eligibility for parole

If an alien was excluded, deported, removed, or departed voluntarily before the date of the enactment of this Act based solely upon the alien’s lack of classification as an immediate relative (as defined in clause (ii) of section 201(b)(2)(A) of the Immigration and Nationality Act, as amended by section 3(a)) due to the death of such citizen or resident— (A)such alien shall be eligible for parole into the United States pursuant to the Attorney General’s discretionary authority under section 212(d)(5) of such Act (8 U.S.C. 1182(d)(5)); and (B)such alien’s application for adjustment of status shall be considered notwithstanding section 212(a)(9) of such Act (8 U.S.C. 1182(a)(9)). (b)

Adjustment of status

Section 245 of the Immigration and Nationality Act (8 U.S.C. 1255) is amended by adding at the end the following: (n)

Application for adjustment of status by surviving spouses, parents, and children

(1)

In general

Any alien described in paragraph (2) who applies for adjustment of status before the death of the qualifying relative, may have such application adjudicated as if such death had not occurred. (2)

Alien described

An alien described in this paragraph is an alien who— (A)is an immediate relative (as described in section 201(b)(2)(A)); (B)is a family-sponsored immigrant (as described in subsection (a) or (d) of section 203); or (C)is a derivative beneficiary of an employment-based immigrant under section 203(b) (as described in section 203(d)). . (c)

Transition period

(1)

In general

Notwithstanding a denial of an application for adjustment of status for 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, if such motion is filed not later than 2 years after such date of enactment. (2)

Eligibility for parole

If an alien described in section 245(n)(2), as amended by subsection (b), was excluded, deported, removed or departed voluntarily before the date of the enactment of this Act— (A)such alien shall be eligible for parole into the United States pursuant to the Attorney General’s discretionary authority under section 212(d)(5) of the Immigration and Nationality Act (8 U.S.C. 1182(d)(5)); and (B)such alien’s application for adjustment of status shall be considered notwithstanding section 212(a)(9) of such Act (8 U.S.C. 1182(a)(9)). (d)

Processing of immigrant visas and derivative petitions

(1)

In general

Subsection (b) of section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) is amended— (A)by striking After an investigation and inserting the following: (1)

In general

After an investigation ; and (B)by adding at the end the following: (2)

Death of qualifying relative

(A)

In general

Any alien described in paragraph (2) whose qualifying relative died before the completion of immigrant visa processing may have an immigrant visa application adjudicated as if such death had not occurred. An immigrant visa issued before the death of the qualifying relative shall remain valid after such death. (B)

Alien described

An alien described in this paragraph is an alien who— (i)is an immediate relative, as described in section 201(b)(2)(A); (ii)is a family-sponsored immigrant, as described in subsection (a) or (d) of section 203; (iii)is a derivative beneficiary of an employment-based immigrant under section 203(b), as described in section 203(d); or (iv)is the spouse or child of a refugee, as described in section 207(c)(2) or an asylee, as described in section 208(b)(3). . (2)

Transition period

(A)

In general

Notwithstanding a denial or revocation of an application for an immigrant visa for 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, if such motion is filed not later than 2 years after such date of enactment. (B)

Inapplicability of bars to entry

In the case of an alien who was excluded, deported, removed, or departed voluntarily before the date of the enactment of this Act, such alien's application for an immigrant visa shall be considered notwithstanding section 212(a)(9) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(9)). (e)

Naturalization

Subsection (a) of section 319 of the Immigration and Nationality Act (8 U.S.C. 1430) is amended by inserting (or, if the spouse is deceased, the spouse was a citizen of the United States) after citizen of the United States.

7.

Exemption from immigrant visa limit for certain veterans who are natives of Philippines

Paragraph (1) of section 201(b) of the Immigration and Nationality Act (8 U.S.C. 1151(b)) is amended by adding at the end the following: (F)Aliens who are eligible for an immigrant visa under paragraph (1) or (3) of section 203(a) and who have a parent who was naturalized pursuant to section 405 of the Immigration Act of 1990 (8 U.S.C. 1440 note). .