II 111th CONGRESS 1st Session S. 1085 IN THE SENATE OF THE UNITED STATES May 20, 2009 Mr. Menendez (for himself, Mrs. Gillibrand, Mr. Kennedy, and Mr. Schumer) 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 family-sponsored immigrants
Section 201(c) of the Immigration and Nationality Act (8 U.S.C. 1151(c)) 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 the sum of— (A)480,000; and (B)the sum of— (i)the number computed under paragraph (2); and (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 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 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. . (b)
Worldwide level of employment-based immigrants
Section 201(d) of the Immigration and Nationality Act (8 U.S.C. 1151(d)) 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; (B)the number computed under paragraph (2); and (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 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 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. . (c)
Effective date
The amendments made by this section shall take effect on the date which is 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
Section 201(b)(2) of the Immigration and Nationality Act (8 U.S.C. 1151(b)(2)) 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 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)
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. (iv)
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. (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
Section 203(a) of the Immigration and Nationality Act (8 U.S.C. 1153(a)) 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
Section 201(f) of the Immigration and Nationality Act (8 U.S.C. 1151(f)) 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 subsection (a)(4)— (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
Section 203(h) of the Immigration and Nationality Act (8 U.S.C. 1153(h)) 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)by amending paragraph (2) to read as follows: (2)
Petitions described
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 citizen; (II)in clause (ii), by striking described in the second sentence of section 201(b)(2)(A)(i) also and inserting , alien child, or alien parent described in section 201(b)(2)(A); (III)in clause (iii)— (aa)in subclause (I)(aa), by inserting or legal permanent resident after citizen; and (bb)in subclause (II)(aa)— (AA)in subitems (AA) and (BB), by inserting or legal permanent resident; after citizen each place that term appears; (BB)in subitem (CC), by inserting or legal permanent resident after citizen each place that term appears; and (CC)in subitem (CC)(bbb), by inserting or legal permanent resident after citizenship; (IV)in clause (iv), by inserting or legal permanent resident after citizen each place that term appears; (V)in clause (v)(I), 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)in subsection (a), by striking paragraph (2); (C)in subsection (c)(1), 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
Section 202(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1152(a)(2)) 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.
Promoting family unity
Section 212(a)(9) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(9)) is amended— (1)in subparagraph (B)— (A)in clause (iii)— (i)in subclause (I), by striking 18 years of age and inserting 21 years of age; (ii)by moving subclause (V) 4 ems to the right; and (iii)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 before the date of the enactment of the Reuniting Families Act, and is otherwise admissible to the United States for permanent residence. ; and (B)in clause (v)— (i)by striking spouse or son or daughter and inserting spouse, son, daughter, or parent; (ii)by striking extreme; (iii)by inserting , son, daughter, or after lawfully resident spouse; and (iv)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.; and (2)in subparagraph (C), by amending clause (ii) 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 reapplication for admission; or (II)for whom an immigrant visa is available or was available on or before the date of the enactment of the Reuniting Families Act, and is otherwise admissible to the United States for permanent residence. .
6.
Relief for orphans, widows, and widowers
(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 file the classification petition under section 204(a)(1)(A)(ii) 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 section 201(b)(2)(A)(i) 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
An 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) of the Immigration and Nationality Act, as added 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
Section 204(b) of the Immigration and Nationality Act (8 U.S.C. 1154(b)) 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 subparagraph (B) 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 subparagraph 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
Notwithstanding section 212(a)(9) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(9)), an alien’s application for an immigrant visa shall be considered if the alien was excluded, deported, removed, or departed voluntarily before the date of the enactment of this Act. (e)
Naturalization
Section 319(a) of the Immigration and Nationality Act (8 U.S.C. 1430(a)) 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
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 (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). .
8.
Fiancée child status protection
(a)
Definition
Section 101(a)(15)(K)(iii) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(K)(iii)) is amended by inserting , provided that a determination of the age of such minor child is made using the age of the alien on the date on which the petition is filed with the Secretary of Homeland Security to classify the alien’s parent as the fiancée or fiancé of a United States citizen (in the case of an alien parent described in clause (i)) or as the spouse of a United States citizen under section 201(b)(2)(A)(i) (in the case of an alien parent described in clause (ii)); before the semicolon at the end. (b)
Adjustment of status authorized
Section 214(d) of the Immigration and Nationality Act (8 U.S.C. 1184(d)(1)) is amended— (1)by redesignating paragraphs (2) and (3) as paragraphs (3) and (4), respectively; and (2)in paragraph (1), by striking In the event and inserting the following: (2)(A)If an alien does not marry the petitioner under paragraph (1) within 3 months after the alien and the alien’s minor children are admitted into the United States, such alien and children shall be required to depart from the United States. If such aliens fail to depart from the United States, they shall be removed in accordance with sections 240 and 241. (B)Subject to subparagraphs (C) and (D), if an alien marries the petitioner described in section 101(a)(15)(K)(i) within 3 months after the alien is admitted into the United States, the Secretary of Homeland Security or the Attorney General, subject to the provisions of section 245(d), may adjust the status of the alien, and any minor children accompanying or following to join the alien, to that of an alien lawfully admitted for permanent residence on a conditional basis under section 216 if the alien and any such minor children apply for such adjustment and are not determined to be inadmissible to the United States. (C)Paragraphs (5) and (7)(A) of section 212(a) shall not apply to an alien who is eligible to apply for adjustment of his or her status to an alien lawfully admitted for permanent residence under this section. (D)An alien eligible for a waiver of inadmissibility as otherwise authorized under this Act shall be permitted to apply for adjustment of his or her status to that of an alien lawfully admitted for permanent residence under this section. . (c)
Age determination
Section 245(d) of the Immigration and Nationality Act (8 U.S.C. 1155(d)) is amended— (1)by inserting (1) before The Attorney General; and (2)by adding at the end the following: (2)A determination of the age of an alien admitted to the United States under section 101(a)(15)(K)(iii) shall be made, for purposes of adjustment to the status of an alien lawfully admitted for permanent residence on a conditional basis under section 216, using the age of the alien on the date on which the petition is filed with the Secretary of Homeland Security to classify the alien’s parent as the fiancée or fiancé of a United States citizen (in the case of an alien parent admitted to the United States under section 101(a)(15)(K)(i)) or as the spouse of a United States citizen under section 201(b)(2)(A)(i) (in the case of an alien parent admitted to the United States under section 101(a)(15)(K)(ii)). . (d)
Effective date
(1)
In general
The amendments made by this section shall be effective as if included in the Immigration Marriage Fraud Amendments of 1986 (Public Law 99–639). (2)
Applicability
The amendments made by this section shall apply to all petitions or applications described in such amendments that— (A)are pending as of the date of the enactment of this Act; or (B)have been denied, but would have been approved if such amendments had been in effect at the time of adjudication of the petition or application. (3)
Motion to reopen or reconsider
A motion to reopen or reconsider a petition or application described in paragraph (2)(B) shall be granted if such motion is filed with the Secretary of Homeland Security or the Attorney General not later than 2 years after the date of the enactment of this Act.
9.
Equal treatment for all stepchildren
Section 101(b)(1)(B) of the Immigration and Nationality Act (8 U.S.C. 1101(b)(1)(B)) is amended by striking , provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred.