I 112th CONGRESS 2d Session H. R. 3823 IN THE HOUSE OF REPRESENTATIVES January 24, 2012 Mr. Rivera introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committees on Ways and Means, Armed Services, and Homeland Security, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To authorize the cancellation of removal and adjustment of status of certain aliens who are long-term United States residents and who entered the United States as children, and for other purposes.
1.
Short title
This Act may be cited as— (1)the Adjusted Residency for Military Service Act; or (2)the ARMS Act.
2.
Table of contents
The table of contents for this Act is as follows: Sec. 1. Short title. Sec. 2. Table of contents. Sec. 3. Definitions. Sec. 4. Cancellation of removal of certain long-term residents who entered the United States as children. Sec. 5. Conditional nonimmigrant status. Sec. 6. Adjustment of status. Sec. 7. Treatment of aliens meeting requirements for extension of conditional nonimmigrant status. Sec. 8. Exclusive jurisdiction. Sec. 9. Penalties for false statements. Sec. 10. Confidentiality of information. Sec. 11. Treatment of conditional nonimmigrants for certain purposes. Sec. 12. Military enlistment. Sec. 13. GAO report.
3.
Definitions
In this Act: (1)
In general
Except as otherwise specifically provided, a term used in this Act that is used in the immigration laws shall have the meaning given such term in the immigration laws. (2)
Conditional nonimmigrant
(A)
Definition
The term conditional nonimmigrant means an alien who is granted conditional nonimmigrant status under this Act. (B)
Description
A conditional nonimmigrant— (i)shall be considered to be an alien within a nonimmigrant class for purposes of the immigration laws; (ii)may have the intention permanently to reside in the United States; and (iii)is not required to have a foreign residence which the alien has no intention of abandoning. (3)
Immigration laws
The term immigration laws has the meaning given such term in section 101(a)(17) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(17)). (4)
Institution of higher education
The term institution of higher education has the meaning given such term in section 102 of the Higher Education Act of 1965 (20 U.S.C. 1002), except that the term does not include an institution of higher education outside the United States. (5)
Military-related terms
The terms armed forces, active duty, active service, and active status have the meanings given those terms in section 101 of title 10, United States Code.
4.
Cancellation of removal 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 an alien who is inadmissible or deportable from the United States, and grant the alien conditional nonimmigrant status, if the alien demonstrates by a preponderance of the evidence 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 the enactment of this Act and was younger than 16 years of age on the date the alien initially entered the United States; (B)the alien has been a person of good moral character since the date the alien initially entered the United States; (C)subject to paragraph (2), the alien— (i)is not inadmissible under paragraph (1), (2), (3), (4), (6)(E), (6)(G), (8), (10)(A), (10)(C), or (10)(D) of section 212(a) of the Immigration and Nationality Act (8 U.S.C. 1182(a)); (ii)is not deportable under paragraph (1)(E), (1)(G), (2), (4), (5), or (6) of section 237(a) of the Immigration and Nationality Act (8 U.S.C. 1227(a)); (iii)has not ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion; and (iv)has not been convicted of— (I)any offense under Federal or State law punishable by a maximum term of imprisonment of more than 1 year; or (II)3 or more offenses under Federal or State law, for which the alien was convicted on different dates for each of the 3 offenses and sentenced to imprisonment for an aggregate of 90 days or more; (D)the alien— (i)has been admitted to an institution of higher education in the United States; or (ii)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 was younger than 30 years of age on the date of the enactment of this Act. (2)
Waiver
With respect to any benefit under this Act, the Secretary of Homeland Security may waive the ground of inadmissibility under paragraph (1), (4), or (6) of section 212(a) of the Immigration and Nationality Act (8 U.S.C. 1182(a)) and the ground of deportability under paragraph (1) of section 237(a) of that Act (8 U.S.C. 1227(a)) 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. (4)
Surcharge
The Secretary of Homeland Security shall charge and collect a surcharge of $525 per application on all applications for relief under this subsection. Such surcharge shall be in addition to the otherwise applicable application fee imposed for the purpose of recovering the full costs of providing adjudication and processing services. Notwithstanding any other provision of law, including section 286 of the Immigration and Nationality Act (8 U.S.C. 1356), any surcharge collected under this paragraph shall be deposited as offsetting receipts in the General Fund of the Treasury and shall not be available for obligation or expenditure. (5)
Deadline for submission of application
An alien shall submit an application for cancellation of removal and conditional nonimmigrant status under this subsection no later than the date that is 1 year after the later of— (A)the date the alien earned a high school diploma or obtained a general education development certificate in the United States; or (B)the effective date of the interim regulations under subsection (d). (6)
Submission of biometric and biographic data
The Secretary of Homeland Security may not cancel the removal of an alien or grant conditional nonimmigrant status to the alien under this subsection unless the alien submits biometric and biographic data, in accordance with procedures established by the Secretary. The Secretary shall provide an alternative procedure for applicants who are unable to provide such biometric or biographic data because of a physical impairment. (7)
Background checks
(A)
Requirement for background checks
The Secretary of Homeland Security shall utilize biometric, biographic, and other data that the Secretary determines is appropriate— (i)to conduct security and law enforcement background checks of an alien seeking relief available under this subsection; and (ii)to determine whether there is any criminal, national security, or other factor that would render the alien ineligible for such relief. (B)
Completion of background checks
The security and law enforcement background checks required by subparagraph (A) shall be completed, to the satisfaction of the Secretary, prior to the date the Secretary cancels the removal of the alien under this subsection. (8)
Medical examination
An alien applying for relief available under this subsection shall undergo a medical observation and examination. The Secretary of Homeland Security, with the concurrence of the Secretary of Health and Human Services, shall prescribe policies and procedures for the nature and timing of such observation and examination. (9)
Military selective service
An alien applying for relief available under this subsection shall establish that the alien has registered under the Military Selective Service Act (50 U.S.C. App. 451 et seq.), if the alien is subject to such registration under that Act. (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 subsection (a) 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)
Regulations
(1)
Initial publication
Not later than 180 days after the date of the enactment of this Act, the Secretary of Homeland Security shall publish regulations implementing this section. (2)
Interim regulations
Notwithstanding section 553 of title 5, United States Code, the regulations required by paragraph (1) shall be effective, on an interim basis, immediately upon publication but may be subject to change and revision after public notice and opportunity for a period of public comment. (3)
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. (e)
Removal of alien
The Secretary of Homeland Security may not remove any alien who— (1)has a pending application for conditional nonimmigrant status under this Act; and (2)establishes prima facie eligibility for cancellation of removal and conditional nonimmigrant status under subsection (a).
5.
Conditional nonimmigrant status
(a)
Length of status
Conditional nonimmigrant status granted under section 4 shall be valid for an initial period of 5 years, subject to termination under subsection (c) of this section. (b)
Terms of conditional nonimmigrant status
(1)
Employment
A conditional nonimmigrant shall be authorized— (A)to be employed in the United States incident to conditional nonimmigrant status; and (B)to enlist in the armed forces as provided in 504(b)(1)(D) of title 10, United States Code, as added by section 12. (2)
Travel
A conditional nonimmigrant may travel outside the United States and may be admitted (if otherwise admissible) upon return to the United States without having to obtain a visa if— (A)the alien is the bearer of valid, unexpired documentary evidence of conditional nonimmigrant status; and (B)the alien’s absence from the United States was not for a period exceeding 180 days or the alien was absent from the United States due to active service in the armed forces. (c)
Termination of status
(1)
In general
The Secretary of Homeland Security shall terminate the conditional nonimmigrant status of any alien if the Secretary determines that the alien— (A)failed to enlist, and be accepted for enlistment, in the armed forces within 9 months after the date on which the alien was granted conditional nonimmigrant status; (B)ceases to meet the requirements of subparagraph (B) or (C) of section 4(a)(1); (C)has become a public charge; or (D)has received a dishonorable or other than honorable discharge from the armed forces. (2)
Return to previous immigration status
Any alien whose conditional nonimmigrant status is terminated under paragraph (1) shall return to the immigration status the alien had immediately prior to receiving conditional nonimmigrant status. (d)
Extension of status
(1)
Eligibility
The Secretary of Homeland Security shall extend the conditional nonimmigrant status of an alien for a second period of 5 years if the following requirements are met: (A)The alien has demonstrated good moral character during the entire period the alien has been a conditional nonimmigrant. (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. For purposes of this subparagraph— (i)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 nonimmigrant status, unless the alien demonstrates that the alien has not abandoned the alien’s residence; and (ii)an alien who is absent from the United States due to active service in the armed forces has not abandoned the alien’s residence in the United States during the period of such service. (D)The alien has served as a member of a regular or reserve component of the armed forces on active duty for at least 2 years or as a member of a reserve component of the armed forces in an active status for at least 4 years, and, if discharged, received an honorable discharge. (2)
Surcharge
The Secretary of Homeland Security shall charge and collect a surcharge of $2,000 per application on all applications for an extension under this subsection. Such surcharge shall be in addition to the otherwise applicable application fee imposed for the purpose of recovering the full costs of providing adjudication and processing services. Notwithstanding any other provision of law, including section 286 of the Immigration and Nationality Act (8 U.S.C. 1356), any surcharge collected under this paragraph shall be deposited as offsetting receipts in the General Fund of the Treasury and shall not be available for obligation or expenditure.
6.
Adjustment of status
(a)
In general
A conditional nonimmigrant may file with the Secretary of Homeland Security, in accordance with subsection (c), an application to have the alien’s status adjusted to that of an alien lawfully admitted for permanent residence. The application shall provide, under penalty of perjury, the facts and information so that the Secretary may make the determination described in paragraph (b)(1). (b)
Adjudication of application for adjustment of status
(1)
In general
If an application is filed in accordance with subsection (a) for an alien, the Secretary of Homeland Security shall make a determination as to whether the alien meets the requirements set out in paragraphs (1) through (4) of subsection (d). (2)
Adjustment of status if favorable determination
If the Secretary determines that the alien meets such requirements, the Secretary shall notify the alien of such determination and adjust the alien’s status to that of an alien lawfully admitted for permanent residence, effective as of the date of approval of the application. (3)
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 nonimmigrant status of the alien as of the date of the determination. (c)
Time To file application
(1)
In general
An alien shall file an application for adjustment of status during the period— (A)beginning on the date on which the alien obtained an extension of status under section 5(d); and (B)ending on either the date that is 10 years after the date of the initial grant of conditional nonimmigrant status or any other expiration date of the conditional nonimmigrant status as extended by the Secretary of Homeland Security in accordance with this Act. (2)
Status during pendency
The alien shall be deemed to be in conditional nonimmigrant status in the United States during the period in which such application is pending. (d)
Contents of application
Each application for an alien under subsection (a) shall contain information to permit the Secretary of Homeland Security to determine whether each of the following requirements is met: (1)The alien has demonstrated good moral character during the entire period the alien has been a conditional nonimmigrant. (2)The alien is in compliance with section 4(a)(1)(C). (3)The alien has not abandoned the alien’s residence in the United States. For purposes of this paragraph— (A)the Secretary shall presume that the alien has abandoned such residence if the alien is absent from the United States for more than 730 days, in the aggregate, during the period of conditional nonimmigrant status, unless the alien demonstrates that the alien has not abandoned the alien’s residence; and (B)an alien who is absent from the United States due to active service in the armed forces has not abandoned the alien’s residence in the United States during the period of such service. (e)
Citizenship requirement
(1)
In general
Except as provided in paragraph (2), the status of a conditional nonimmigrant shall not be adjusted to permanent resident status unless the alien demonstrates that the alien satisfies the requirements of section 312(a) of the Immigration and Nationality Act (8 U.S.C. 1423(a)). (2)
Exception
Paragraph (1) shall not apply to an alien who is unable because of a physical or developmental disability or mental impairment to meet the requirements of such paragraph. (f)
Payment of Federal taxes
(1)
In general
Not later than the date on which an application is filed under subsection (a) for adjustment of status, the alien shall satisfy any applicable Federal tax liability due and owing on such date. (2)
Applicable Federal tax liability
For purposes of paragraph (1), the term applicable Federal tax liability means liability for Federal taxes imposed under the Internal Revenue Code of 1986, including any penalties and interest thereon. (g)
Submission of biometric and biographic data
The Secretary of Homeland Security may not adjust the status of an alien under this section unless the alien submits biometric and biographic data, in accordance with procedures established by the Secretary. The Secretary shall provide an alternative procedure for applicants who are unable to provide such biometric or biographic data because of a physical impairment. (h)
Background checks
(1)
Requirement for background checks
The Secretary of Homeland Security shall utilize biometric, biographic, and other data that the Secretary determines appropriate— (A)to conduct security and law enforcement background checks of an alien applying for adjustment of status under this section; and (B)to determine whether there is any criminal, national security, or other factor that would render the alien ineligible for such adjustment of status. (2)
Completion of background checks
The security and law enforcement background checks required by paragraph (1) shall be completed, to the satisfaction of the Secretary, prior to the date the Secretary grants adjustment of status. (i)
Exemption from numerical limitations
Nothing in this section or in any other law may be construed to apply a numerical limitation on the number of aliens who may be eligible for adjustment of status under this section. (j)
Eligibility for naturalization
An alien whose status is adjusted under this section to that of an alien lawfully admitted for permanent residence may be naturalized upon compliance with all the requirements of the immigration laws except the provisions of paragraph (1) of section 316(a) of the Immigration and Nationality Act (8 U.S.C. 1427(a)), if such person immediately preceding the date of filing the application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least 3 years, and has been physically present in the United States for periods totaling at least half of that time and has resided within the State or the district of U.S. Citizenship and Immigration Services in the United States in which the applicant filed the application for at least 3 months. An alien described in this subsection may file the application for naturalization as provided in the second sentence of subsection (a) of section 334 of the Immigration and Nationality Act (8 U.S.C. 1445).
7.
Treatment of aliens meeting requirements for extension of conditional nonimmigrant status
If, on the date of the enactment of this Act, an alien has satisfied all the requirements of section 4(a)(1) and section 5(d)(1)(D), the Secretary of Homeland Security may cancel removal and grant conditional nonimmigrant status in accordance with section 4, and may extend conditional nonimmigrant status in accordance with section 5(d). The alien may apply for adjustment of status in accordance with section 6(a) if the alien has met the requirements of subparagraphs (A), (B), and (C) of section 5(d)(1) during the entire period of conditional nonimmigrant status.
8.
Exclusive jurisdiction
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 cancellation of removal and conditional nonimmigrant status or adjustment of status 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. If the Secretary grants relief under this Act, the final order of deportation, exclusion, or removal shall be terminated.
9.
Penalties for false statements
Whoever files an application for any benefit 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, imprisoned not more than 5 years, or both.
10.
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 an individual pursuant to an application filed under this Act to initiate removal proceedings against any person 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 an application filed under this Act with a designated entity, that designated entity, to examine such application filed under this Act. (b)
Required disclosure
The Attorney General or the Secretary of Homeland Security shall provide the information furnished under this Act, and any other information derived from such furnished information, to— (1)a Federal, State, tribal, or local law enforcement agency, intelligence agency, national security agency, component of the Department of Homeland Security, court, or grand jury in connection with a criminal investigation or prosecution, a background check conducted pursuant to the Brady Handgun Violence Protection Act (Public Law 103–159; 107 Stat. 1536) or an amendment made by that Act, or for homeland security or national security purposes, if such information is requested by such entity or consistent with an information sharing agreement or mechanism; 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)
Fraud in application process or criminal conduct
Notwithstanding any other provision of this section, information concerning whether an alien seeking relief under this Act has engaged in fraud in an application for such relief or at any time committed a crime may be used or released for immigration enforcement, law enforcement, or national security purposes. (d)
Penalty
Whoever knowingly uses, publishes, or permits information to be examined in violation of this section shall be fined not more than $10,000.
11.
Treatment of conditional nonimmigrants for certain purposes
(a)
In general
An individual granted conditional nonimmigrant status under this Act shall, while such individual remains in such status, be considered lawfully present for all purposes except— (1)section 36B of the Internal Revenue Code of 1986 (concerning premium tax credits), as added by section 1401 of the Patient Protection and Affordable Care Act (Public Law 111–148); and (2)section 1402 of the Patient Protection and Affordable Care Act (concerning reduced cost sharing; 42 U.S.C. 18071). (b)
For purposes of the 5-Year eligibility waiting period under PRWORA
An individual who has met the requirements under this Act for adjustment from conditional nonimmigrant status to lawful permanent resident status shall be considered, as of the date of such adjustment, to have completed the 5-year period specified in section 403 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1613).
12.
Military enlistment
Section 504(b)(1) of title 10, United States Code, is amended by adding at the end the following new subparagraph: (D)An alien who is a conditional nonimmigrant (as that term is defined in section 3 of the Adjusted Residency for Military Service Act). .
13.
GAO report
Not later than 7 years after the date of the enactment of this Act, the Comptroller General of the United States shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report setting forth— (1)the number of aliens who were eligible for cancellation of removal and grant of conditional nonimmigrant status under section 4(a); (2)the number of aliens who applied for cancellation of removal and grant of conditional nonimmigrant status under section 4(a); (3)the number of aliens who were granted conditional nonimmigrant status under section 4(a); and (4)the number of aliens whose status was adjusted to that of an alien lawfully admitted for permanent residence under section 6.