[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 729 Introduced in Senate (IS)]

111th CONGRESS
  1st Session
                                 S. 729

 To amend the Illegal Immigration Reform and Immigrant Responsibility 
 Act of 1996 to permit States to determine State residency for higher 
  education purposes and to authorize the cancellation of removal and 
adjustment of status of certain alien students who are long-term United 
States residents and who entered the United States as children, and for 
                            other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 26, 2009

Mr. Durbin (for himself, Mr. Lugar, Mr. Reid, Mr. Martinez, Mr. Leahy, 
Mr. Lieberman, Mr. Kennedy, and Mr. Feingold) introduced the following 
    bill; which was read twice and referred to the Committee on the 
                               Judiciary

_______________________________________________________________________

                                 A BILL


 
 To amend the Illegal Immigration Reform and Immigrant Responsibility 
 Act of 1996 to permit States to determine State residency for higher 
  education purposes and to authorize the cancellation of removal and 
adjustment of status of certain alien students who are long-term United 
States residents and who entered the United States as children, and for 
                            other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Development, Relief, and Education 
for Alien Minors Act of 2009'' or the ``DREAM Act of 2009''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Institution of higher education.--The term 
        ``institution of higher education'' has the meaning given that 
        term in section 101 of the Higher Education Act of 1965 (20 
        U.S.C. 1001).
            (2) Uniformed services.--The term ``uniformed services'' 
        has the meaning given that term in section 101(a) of title 10, 
        United States Code.

SEC. 3. RESTORATION OF STATE OPTION TO DETERMINE RESIDENCY FOR PURPOSES 
              OF HIGHER EDUCATION BENEFITS.

    (a) In General.--Section 505 of the Illegal Immigration Reform and 
Immigrant Responsibility Act of 1996 (8 U.S.C. 1623) is repealed.
    (b) Effective Date.--The repeal under subsection (a) shall take 
effect as if included in the enactment of the Illegal Immigration 
Reform and Immigrant Responsibility Act of 1996 (division C of Public 
Law 104-208; 110 Stat. 3009-546).

SEC. 4. CANCELLATION OF REMOVAL AND ADJUSTMENT OF STATUS OF CERTAIN 
              LONG-TERM RESIDENTS WHO ENTERED THE UNITED STATES AS 
              CHILDREN.

    (a) Special Rule for Certain Long-Term Residents Who Entered the 
United States as Children.--
            (1) In general.--Notwithstanding any other provision of law 
        and except as otherwise provided in this Act, the Secretary of 
        Homeland Security may cancel removal of, and adjust to the 
        status of an alien lawfully admitted for permanent residence, 
        subject to the conditional basis described in section 5, an 
        alien who is inadmissible or deportable from the United States, 
        if the alien demonstrates that--
                    (A) the alien has been physically present in the 
                United States for a continuous period of not less than 
                5 years immediately preceding the date of enactment of 
                this Act, and had not yet reached the age of 16 years 
                at the time of initial entry;
                    (B) the alien has been a person of good moral 
                character since the time of application;
                    (C) the alien--
                            (i) is not inadmissible under paragraph 
                        (2), (3), (6)(E), or (10)(C) of section 212(a) 
                        of the Immigration and Nationality Act (8 
                        U.S.C. 1182(a)); and
                            (ii) is not deportable under paragraph 
                        (1)(E), (2), or (4) of section 237(a) of the 
                        Immigration and Nationality Act (8 U.S.C. 
                        1227(a));
                    (D) the alien, at the time of application, has been 
                admitted to an institution of higher education in the 
                United States, or has earned a high school diploma or 
                obtained a general education development certificate in 
                the United States;
                    (E) the alien has never been under a final 
                administrative or judicial order of exclusion, 
                deportation, or removal, unless the alien--
                            (i) has remained in the United States under 
                        color of law after such order was issued; or
                            (ii) received the order before attaining 
                        the age of 16 years; and
                    (F) the alien had not yet reached the age of 35 
                years on the date of the enactment of this Act.
            (2) Waiver.--Notwithstanding paragraph (1), the Secretary 
        of Homeland Security may waive the ground of ineligibility 
        under section 212(a)(6)(E) of the Immigration and Nationality 
        Act and the ground of deportability under paragraph (1)(E) of 
        section 237(a) of that Act for humanitarian purposes or family 
        unity or when it is otherwise in the public interest.
            (3) Procedures.--The Secretary of Homeland Security shall 
        provide a procedure by regulation allowing eligible individuals 
        to apply affirmatively for the relief available under this 
        subsection without being placed in removal proceedings.
    (b) Termination of Continuous Period.--For purposes of this 
section, any period of continuous residence or continuous physical 
presence in the United States of an alien who applies for cancellation 
of removal under this section shall not terminate when the alien is 
served a notice to appear under section 239(a) of the Immigration and 
Nationality Act (8 U.S.C. 1229(a)).
    (c) Treatment of Certain Breaks in Presence.--
            (1) In general.--An alien shall be considered to have 
        failed to maintain continuous physical presence in the United 
        States under subsection (a) if the alien has departed from the 
        United States for any period in excess of 90 days or for any 
        periods in the aggregate exceeding 180 days.
            (2) Extensions for exceptional circumstances.--The 
        Secretary of Homeland Security may extend the time periods 
        described in paragraph (1) if the alien demonstrates that the 
        failure to timely return to the United States was due to 
        exceptional circumstances. The exceptional circumstances 
        determined sufficient to justify an extension should be no less 
        compelling than serious illness of the alien, or death or 
        serious illness of a parent, grandparent, sibling, or child.
    (d) Exemption From Numerical Limitations.--Nothing in this section 
may be construed to apply a numerical limitation on the number of 
aliens who may be eligible for cancellation of removal or adjustment of 
status under this section.
    (e) Regulations.--
            (1) Proposed regulations.--Not later than 180 days after 
        the date of enactment of this Act, the Secretary of Homeland 
        Security shall publish proposed regulations implementing this 
        section. Such regulations shall be effective immediately on an 
        interim basis, but are subject to change and revision after 
        public notice and opportunity for a period for public comment.
            (2) Interim, final regulations.--Within a reasonable time 
        after publication of the interim regulations in accordance with 
        paragraph (1), the Secretary of Homeland Security shall publish 
        final regulations implementing this section.
    (f) Removal of Alien.--The Secretary of Homeland Security may not 
remove any alien who has a pending application for conditional status 
under this Act.

SEC. 5. CONDITIONAL PERMANENT RESIDENT STATUS.

    (a) In General.--
            (1) Conditional basis for status.--Notwithstanding any 
        other provision of law, and except as provided in section 6, an 
        alien whose status has been adjusted under section 4 to that of 
        an alien lawfully admitted for permanent residence shall be 
        considered to have obtained such status on a conditional basis 
        subject to the provisions of this section. Such conditional 
        permanent resident status shall be valid for a period of 6 
        years, subject to termination under subsection (b).
            (2) Notice of requirements.--
                    (A) At time of obtaining permanent residence.--At 
                the time an alien obtains permanent resident status on 
                a conditional basis under paragraph (1), the Secretary 
                of Homeland Security shall provide for notice to the 
                alien regarding the provisions of this section and the 
                requirements of subsection (c) to have the conditional 
                basis of such status removed.
                    (B) Effect of failure to provide notice.--The 
                failure of the Secretary of Homeland Security to 
                provide a notice under this paragraph--
                            (i) shall not affect the enforcement of the 
                        provisions of this Act with respect to the 
                        alien; and
                            (ii) shall not give rise to any private 
                        right of action by the alien.
    (b) Termination of Status.--
            (1) In general.--The Secretary of Homeland Security shall 
        terminate the conditional permanent resident status of any 
        alien who obtained such status under this Act, if the Secretary 
        determines that the alien--
                    (A) ceases to meet the requirements of subparagraph 
                (B) or (C) of section 4(a)(1);
                    (B) has become a public charge; or
                    (C) has received a dishonorable or other than 
                honorable discharge from the uniformed services.
            (2) Return to previous immigration status.--Any alien whose 
        conditional permanent resident status is terminated under 
        paragraph (1) shall return to the immigration status the alien 
        had immediately prior to receiving conditional permanent 
        resident status under this Act.
    (c) Requirements of Timely Petition for Removal of Condition.--
            (1) In general.--In order for the conditional basis of 
        permanent resident status obtained by an alien under subsection 
        (a) to be removed, the alien must file with the Secretary of 
        Homeland Security, in accordance with paragraph (3), a petition 
        which requests the removal of such conditional basis and which 
        provides, under penalty of perjury, the facts and information 
        so that the Secretary may make the determination described in 
        paragraph (2)(A).
            (2) Adjudication of petition to remove condition.--
                    (A) In general.--If a petition is filed in 
                accordance with paragraph (1) for an alien, the 
                Secretary of Homeland Security shall make a 
                determination as to whether the alien meets the 
                requirements set out in subparagraphs (A) through (E) 
                of subsection (d)(1).
                    (B) Removal of conditional basis if favorable 
                determination.--If the Secretary determines that the 
                alien meets such requirements, the Secretary shall 
                notify the alien of such determination and immediately 
                remove the conditional basis of the status of the 
                alien.
                    (C) Termination if adverse determination.--If the 
                Secretary determines that the alien does not meet such 
                requirements, the Secretary shall notify the alien of 
                such determination and terminate the conditional 
                permanent resident status of the alien as of the date 
                of the determination.
            (3) Time to file petition.--An alien may petition to remove 
        the conditional basis to lawful resident status during the 
        period beginning 180 days before and ending 2 years after 
        either the date that is 6 years after the date of the granting 
        of conditional permanent resident status or any other 
        expiration date of the conditional permanent resident status as 
        extended by the Secretary of Homeland Security in accordance 
        with this Act. The alien shall be deemed in conditional 
        permanent resident status in the United States during the 
        period in which the petition is pending.
    (d) Details of Petition.--
            (1) Contents of petition.--Each petition for an alien under 
        subsection (c)(1) shall contain information to permit the 
        Secretary of Homeland Security to determine whether each of the 
        following requirements is met:
                    (A) The alien has demonstrated good moral character 
                during the entire period the alien has been a 
                conditional permanent resident.
                    (B) The alien is in compliance with section 
                4(a)(1)(C).
                    (C) The alien has not abandoned the alien's 
                residence in the United States. The Secretary shall 
                presume that the alien has abandoned such residence if 
                the alien is absent from the United States for more 
                than 365 days, in the aggregate, during the period of 
                conditional residence, unless the alien demonstrates 
                that alien has not abandoned the alien's residence. An 
                alien who is absent from the United States due to 
                active service in the uniformed services has not 
                abandoned the alien's residence in the United States 
                during the period of such service.
                    (D) The alien has completed at least 1 of the 
                following:
                            (i) The alien has acquired a degree from an 
                        institution of higher education in the United 
                        States or has completed at least 2 years, in 
                        good standing, in a program for a bachelor's 
                        degree or higher degree in the United States.
                            (ii) The alien has served in the uniformed 
                        services for at least 2 years and, if 
                        discharged, has received an honorable 
                        discharge.
                    (E) The alien has provided a list of each secondary 
                school (as that term is defined in section 9101 of the 
                Elementary and Secondary Education Act of 1965 (20 
                U.S.C. 7801)) that the alien attended in the United 
                States.
            (2) Hardship exception.--
                    (A) In general.--The Secretary of Homeland Security 
                may, in the Secretary's discretion, remove the 
                conditional status of an alien if the alien--
                            (i) satisfies the requirements of 
                        subparagraphs (A), (B), and (C) of paragraph 
                        (1);
                            (ii) demonstrates compelling circumstances 
                        for the inability to complete the requirements 
                        described in paragraph (1)(D); and
                            (iii) demonstrates that the alien's removal 
                        from the United States would result in 
                        exceptional and extremely unusual hardship to 
                        the alien or the alien's spouse, parent, or 
                        child who is a citizen or a lawful permanent 
                        resident of the United States.
                    (B) Extension.--Upon a showing of good cause, the 
                Secretary of Homeland Security may extend the period of 
                conditional resident status for the purpose of 
                completing the requirements described in paragraph 
                (1)(D).
    (e) Treatment of Period for Purposes of Naturalization.--For 
purposes of title III of the Immigration and Nationality Act (8 U.S.C. 
1401 et seq.), in the case of an alien who is in the United States as a 
lawful permanent resident on a conditional basis under this section, 
the alien shall be considered to have been admitted as an alien 
lawfully admitted for permanent residence and to be in the United 
States as an alien lawfully admitted to the United States for permanent 
residence. However, the conditional basis must be removed before the 
alien may apply for naturalization.

SEC. 6. RETROACTIVE BENEFITS UNDER THIS ACT.

    If, on the date of enactment of this Act, an alien has satisfied 
all the requirements of subparagraphs (A) through (E) of section 
4(a)(1) and section 5(d)(1)(D), the Secretary of Homeland Security may 
adjust the status of the alien to that of a conditional resident in 
accordance with section 4. The alien may petition for removal of such 
condition at the end of the conditional residence period in accordance 
with section 5(c) if the alien has met the requirements of 
subparagraphs (A), (B), and (C) of section 5(d)(1) during the entire 
period of conditional residence.

SEC. 7. EXCLUSIVE JURISDICTION.

    (a) In General.--The Secretary of Homeland Security shall have 
exclusive jurisdiction to determine eligibility for relief under this 
Act, except where the alien has been placed into deportation, 
exclusion, or removal proceedings either prior to or after filing an 
application for relief under this Act, in which case the Attorney 
General shall have exclusive jurisdiction and shall assume all the 
powers and duties of the Secretary until proceedings are terminated, or 
if a final order of deportation, exclusion, or removal is entered the 
Secretary shall resume all powers and duties delegated to the Secretary 
under this Act.
    (b) Stay of Removal of Certain Aliens Enrolled in Primary or 
Secondary School.--The Attorney General shall stay the removal 
proceedings of any alien who--
            (1) meets all the requirements of subparagraphs (A), (B), 
        (C), and (E) of section 4(a)(1);
            (2) is at least 12 years of age; and
            (3) is enrolled full time in a primary or secondary school.
    (c) Employment.--An alien whose removal is stayed pursuant to 
subsection (b) may be engaged in employment in the United States 
consistent with the Fair Labor Standards Act (29 U.S.C. 201 et seq.) 
and State and local laws governing minimum age for employment.
    (d) Lift of Stay.--The Attorney General shall lift the stay granted 
pursuant to subsection (b) if the alien--
            (1) is no longer enrolled in a primary or secondary school; 
        or
            (2) ceases to meet the requirements of subsection (b)(1).

SEC. 8. PENALTIES FOR FALSE STATEMENTS IN APPLICATION.

    Whoever files an application for relief under this Act and 
willfully and knowingly falsifies, misrepresents, or conceals a 
material fact or makes any false or fraudulent statement or 
representation, or makes or uses any false writing or document knowing 
the same to contain any false or fraudulent statement or entry, shall 
be fined in accordance with title 18, United States Code, or imprisoned 
not more than 5 years, or both.

SEC. 9. CONFIDENTIALITY OF INFORMATION.

    (a) Prohibition.--Except as provided in subsection (b), no officer 
or employee of the United States may--
            (1) use the information furnished by the applicant pursuant 
        to an application filed under this Act to initiate removal 
        proceedings against any persons identified in the application;
            (2) make any publication whereby the information furnished 
        by any particular individual pursuant to an application under 
        this Act can be identified; or
            (3) permit anyone other than an officer or employee of the 
        United States Government or, in the case of applications filed 
        under this Act with a designated entity, that designated 
        entity, to examine applications filed under this Act.
    (b) Required Disclosure.--The Attorney General or the Secretary of 
Homeland Security shall provide the information furnished under this 
section, and any other information derived from such furnished 
information, to--
            (1) a duly recognized law enforcement entity in connection 
        with an investigation or prosecution of an offense described in 
        paragraph (2) or (3) of section 212(a) of the Immigration and 
        Nationality Act (8 U.S.C. 1182(a)), when such information is 
        requested in writing by such entity; or
            (2) an official coroner for purposes of affirmatively 
        identifying a deceased individual (whether or not such 
        individual is deceased as a result of a crime).
    (c) Penalty.--Whoever knowingly uses, publishes, or permits 
information to be examined in violation of this section shall be fined 
not more than $10,000.

SEC. 10. EXPEDITED PROCESSING OF APPLICATIONS; PROHIBITION ON FEES.

    Regulations promulgated under this Act shall provide that 
applications under this Act will be considered on an expedited basis 
and without a requirement for the payment by the applicant of any 
additional fee for such expedited processing.

SEC. 11. HIGHER EDUCATION ASSISTANCE.

    Notwithstanding any provision of the Higher Education Act of 1965 
(20 U.S.C. 1001 et seq.), with respect to assistance provided under 
title IV of the Higher Education Act of 1965 (20 U.S.C. 1070 et seq.), 
an alien who adjusts status to that of a lawful permanent resident 
under this Act shall be eligible only for the following assistance 
under such title:
            (1) Student loans under parts B, D, and E of such title IV 
        (20 U.S.C. 1071 et seq., 1087a et seq., 1087aa et seq.), 
        subject to the requirements of such parts.
            (2) Federal work-study programs under part C of such title 
        IV (42 U.S.C. 2751 et seq.), subject to the requirements of 
        such part.
            (3) Services under such title IV (20 U.S.C. 1070 et seq.), 
        subject to the requirements for such services.

SEC. 12. GAO REPORT.

    Not later than seven years after the date of enactment of this Act, 
the Comptroller General of the United States shall submit a report to 
the Committee on the Judiciary of the Senate and the Committee on the 
Judiciary of the House of Representatives setting forth--
            (1) the number of aliens who were eligible for cancellation 
        of removal and adjustment of status under section 4(a);
            (2) the number of aliens who applied for adjustment of 
        status under section 4(a);
            (3) the number of aliens who were granted adjustment of 
        status under section 4(a); and
            (4) the number of aliens whose conditional permanent 
        resident status was removed under section 5.
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