[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 2464 Placed on Calendar Senate (PCS)]

<DOC>





                                                       Calendar No. 338
115th CONGRESS
  2d Session
                                S. 2464

    To improve border security and to provide conditional provision 
residence to certain long-term residents who entered the United States 
                              as children.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           February 27, 2018

Mr. Flake (for himself and Ms. Heitkamp) introduced the following bill; 
                     which was read the first time

                           February 28, 2018

            Read the second time and placed on the calendar

_______________________________________________________________________

                                 A BILL


 
    To improve border security and to provide conditional provision 
residence to certain long-term residents who entered the United States 
                              as children.

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Three-Year Border 
and DACA Extension Act''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title; table of contents.
                        TITLE I--BORDER SECURITY

Sec. 101. Authorization of appropriations.
Sec. 102. Operations and support.
                        TITLE II--DACA EXTENSION

Sec. 201. Provisional protected presence for young individuals.

                        TITLE I--BORDER SECURITY

SEC. 101. AUTHORIZATION OF APPROPRIATIONS.

    There is authorized to be appropriated a total of $7,639,000,000 to 
the Department of Homeland Security for fiscal years 2018 through 2020 
for the purpose of improving border security.

SEC. 102. OPERATIONS AND SUPPORT.

    (a) Purpose.--It is the purpose of this section to establish a 
Border Security Enforcement Fund (referred to in this section as the 
``Fund''), to be administered through the Department of Homeland 
Security and, in fiscal year 2018 only, through the Department of 
State, to provide for costs necessary to implement this Act and other 
Acts related to border security for activities, including--
            (1) constructing, installing, deploying, operating, and 
        maintaining tactical infrastructure and technology in the 
        vicinity of the United States border--
                    (A) to achieve situational awareness and 
                operational control of the border; and
                    (B) to deter, impede, and detect illegal activity 
                in high traffic areas; and
                    (C) to implement other border security provisions 
                under this section;
            (2) implementing port of entry provisions under this 
        section;
            (3) purchasing new aircraft, vessels, spare parts, and 
        equipment to operate and maintain such craft; and
            (4) hiring and recruitment.
    (b) Funding.--There are appropriated, to the Fund, out of any 
monies in the Treasury not otherwise appropriated, a total of 
$7,639,000,000, as follows:
            (1) For fiscal year 2018, $2,947,000,000, to remain 
        available through fiscal year 2022.
            (2) For fiscal year 2019, $2,225,000,000, to remain 
        available through fiscal year 2023.
            (3) For fiscal year 2020, $2,467,000,000, to remain 
        available through fiscal year 2024.
    (c) Physical Barriers.--
            (1) In general.--In each of the following fiscal years, the 
        Secretary of Homeland Security shall transfer, from the Fund to 
        the U.S. Customs and Border Protection--Procurement, 
        Construction and Improvements account, for the purpose of 
        constructing, replacing, or planning physical barriers along 
        the United States land border, a total of $5,013,000,000, as 
        follows:
                    (A) For fiscal year 2018, $1,571,000,000.
                    (B) For fiscal year 2019, $1,600,000,000.
                    (C) For fiscal year 2020, $1,842,000,000.
            (2) Availability of funds.--Notwithstanding section 1552(a) 
        of title 31, United States Code, any amounts obligated for the 
        purposes described in paragraph (1) shall remain available for 
        disbursement until expended.
    (d) Transfer Authority.--Other than the amounts transferred by the 
Secretary of Homeland Security and the Secretary of State pursuant to 
subsections (b) and (c), the Committee on Appropriations of the Senate 
and the Committee on Appropriations of the House of Representatives may 
provide for the transfer of amounts in the Fund for each fiscal year to 
eligible activities under this section, including--
            (1) for the purpose of constructing, replacing, or planning 
        for physical barriers along the United States land border; or
            (2) for any of the activities described in subsection (a).
    (e) Use of Fund.--If the Committee on Appropriations of the Senate 
and the Committee on Appropriations of the House of Representatives do 
not provide for the transfer of funds in a full-year appropriation in 
any fiscal year in accordance with subsection (d), the Secretary of 
Homeland Security shall transfer amounts in the Fund to accounts within 
the Department of Homeland Security for eligible activities under this 
section, including not less than the amounts specified in subsection 
(c) for the purpose of constructing, replacing, or planning for 
physical barriers along the United States land border.
    (f) Budget Request.--A request for the transfer of amounts in the 
Fund under this section--
            (1) shall be included in each budget for a fiscal year 
        submitted by the President under section 1105 of title 31, 
        United States Code; and
            (2) shall detail planned obligations by program, project, 
        and activity in the receiving account at the same level of 
        detail provided for in the request for other appropriations in 
        that account.
    (g) Reporting Requirement.--At the beginning of fiscal year 2019, 
and annually thereafter until the funding made available under this 
title has been expended, the Secretary of Homeland Security shall 
submit a report to the Committee on Homeland Security and Governmental 
Affairs of the Senate, the Committee on the Judiciary of the Senate, 
the Committee on Homeland Security of the House of Representatives, and 
the Committee on the Judiciary of the House of Representatives that 
describes--
            (1) the status of border security in the United States; and
            (2) the amount planned to be expended on border security 
        during the upcoming fiscal year, broken down by project and 
        activity.

                        TITLE II--DACA EXTENSION

SEC. 201. PROVISIONAL PROTECTED PRESENCE FOR YOUNG INDIVIDUALS.

    (a) In General.--Chapter 4 of title II of the Immigration and 
Nationality Act (8 U.S.C. 1221 et seq.) is amended by adding at the end 
the following:

``SEC. 244A. PROVISIONAL PROTECTED PRESENCE.

    ``(a) Definitions.--In this section:
            ``(1) DACA recipient.--- The term `DACA recipient' means an 
        alien who is in deferred action status on the date of the 
        enactment of this section pursuant to the Deferred Action for 
        Childhood Arrivals (`DACA') Program announced on June 15, 2012.
            ``(2) Felony.--The term `felony' means a Federal, State, or 
        local criminal offense (excluding a State or local offense for 
        which an essential element was the alien's immigration status) 
        punishable by imprisonment for a term exceeding 1 year.
            ``(3) Misdemeanor.--The term `misdemeanor' means a Federal, 
        State, or local criminal offense (excluding a State or local 
        offense for which an essential element was the alien's 
        immigration status, a significant misdemeanor, and a minor 
        traffic offense) for which--
                    ``(A) the maximum term of imprisonment is greater 
                than five days and not greater than 1 year; and
                    ``(B) the individual was sentenced to time in 
                custody of 90 days or less.
            ``(4) Secretary.--The term `Secretary' means the Secretary 
        of Homeland Security.
            ``(5) Significant misdemeanor.--The term `significant 
        misdemeanor' means a Federal, State, or local criminal offense 
        (excluding a State or local offense for which an essential 
        element was the alien's immigration status) for which the 
        maximum term of imprisonment is greater than 5 days and not 
        greater than 1 year that--
                    ``(A) regardless of the sentence imposed, is a 
                crime of domestic violence (as defined in section 
                237(a)(2)(E)(i)) or an offense of sexual abuse or 
                exploitation, burglary, unlawful possession or use of a 
                firearm, drug distribution or trafficking, or driving 
                under the influence if the State law requires, as an 
                element of the offense, the operation of a motor 
                vehicle and a finding of impairment or a blood alcohol 
                content of .08 or higher; or
                    ``(B) resulted in a sentence of time in custody of 
                more than 90 days, excluding an offense for which the 
                sentence was suspended.
            ``(6) Threat to national security.--An alien is a `threat 
        to national security' if the alien is--
                    ``(A) inadmissible under section 212(a)(3); or
                    ``(B) deportable under section 237(a)(4).
            ``(7) Threat to public safety.--An alien is a `threat to 
        public safety' if the alien--
                    ``(A) has been convicted of an offense for which an 
                element was participation in a criminal street gang (as 
                defined in section 521(a) of title 18, United States 
                Code); or
                    ``(B) has engaged in a continuing criminal 
                enterprise (as defined in section 408(c) of the 
                Comprehensive Drug Abuse Prevention and Control Act of 
                1970 (21 U.S.C. 848(c))).
    ``(b) Authorization.--The Secretary--
            ``(1) shall grant provisional protected presence to an 
        alien who--
                    ``(A) files an application demonstrating that he or 
                she meets the eligibility criteria under subsection 
                (c); and
                    ``(B) pays the appropriate application fee;
            ``(2) may not remove such alien from the United States 
        during the period in which such provisional protected presence 
        is in effect unless such status is rescinded pursuant to 
        subsection (g); and
            ``(3) shall provide such alien with employment 
        authorization.
    ``(c) Eligibility Criteria.--An alien is eligible for provisional 
protected presence and employment authorization under this section if 
the alien--
            ``(1) was born after June 15, 1981;
            ``(2) entered the United States before reaching 16 years of 
        age;
            ``(3) continuously resided in the United States between 
        June 15, 2007, and the date on which the alien files an 
        application under this section;
            ``(4) was physically present in the United States on June 
        15, 2012, and on the date on which the alien files an 
        application under this section;
            ``(5) was unlawfully present in the United States on June 
        15, 2012;
            ``(6) on the date on which the alien files an application 
        for provisional protected presence--
                    ``(A) is enrolled in school or in an education 
                program assisting students in obtaining a regular high 
                school diploma or its recognized equivalent under State 
                law, or in passing a general educational development 
                exam or other State-authorized exam;
                    ``(B) has graduated or obtained a certificate of 
                completion from high school;
                    ``(C) has obtained a general educational 
                development certificate; or
                    ``(D) is an honorably discharged veteran of the 
                Coast Guard or Armed Forces of the United States;
            ``(7) has not been convicted of--
                    ``(A) a felony;
                    ``(B) a significant misdemeanor; or
                    ``(C) 3 or more misdemeanors not occurring on the 
                same date and not arising out of the same act, 
                omission, or scheme of misconduct; and
            ``(8) does not otherwise pose a threat to national security 
        or a threat to public safety.
    ``(d) Duration of Provisional Protected Presence and Employment 
Authorization.--Provisional protected presence and employment 
authorization provided under this section shall be effective until the 
date that is 3 years after the date of the enactment of the Three-Year 
Border and DACA Extension Act.
    ``(e) Status During Period of Provisional Protected Presence.--
            ``(1) In general.--An alien granted provisional protected 
        presence is not considered to be unlawfully present in the 
        United States during the period beginning on the date such 
        status is granted and ending on the date described in 
        subsection (d).
            ``(2) Status outside period.--The granting of provisional 
        protected presence under this section does not excuse previous 
        or subsequent periods of unlawful presence.
    ``(f) Application.--
            ``(1) Age requirement.--
                    ``(A) In general.--An alien who has never been in 
                removal proceedings, or whose proceedings have been 
                terminated before making a request for provisional 
                protected presence, shall be at least 15 years old on 
                the date on which the alien submits an application 
                under this section.
                    ``(B) Exception.--The age requirement set forth in 
                subparagraph (A) shall not apply to an alien who, on 
                the date on which the alien applies for provisional 
                protected presence, is in removal proceedings, has a 
                final removal order, or has a voluntary departure 
                order.
            ``(2) Application fee.--
                    ``(A) In general.--The Secretary may require aliens 
                applying for provisional protected presence and 
                employment authorization under this section to pay a 
                reasonable fee that is commensurate with the cost of 
                processing the application.
                    ``(B) Exemption.--An applicant may be exempted from 
                paying the fee required under subparagraph (A) if the 
                alien--
                            ``(i)(I) is younger than 18 years of age;
                            ``(II) received total income during the 12-
                        month period immediately preceding the date on 
                        which the alien files an application under this 
                        section that is less than 150 percent of the 
                        United States poverty level; and
                            ``(III) is in foster care or otherwise 
                        lacking any parental or other familial support;
                            ``(ii) is younger than 18 years of age and 
                        is homeless;
                            ``(iii)(I) cannot care for himself or 
                        herself because of a serious, chronic 
                        disability; and
                            ``(II) received total income during the 12-
                        month period immediately preceding the date on 
                        which the alien files an application under this 
                        section that is less than 150 percent of the 
                        United States poverty level; or
                            ``(iv)(I) as of the date on which the alien 
                        files an application under this section, has 
                        accumulated $10,000 or more in debt in the past 
                        12 months as a result of unreimbursed medical 
                        expenses incurred by the alien or an immediate 
                        family member of the alien; and
                            ``(II) received total income during the 12-
                        month period immediately preceding the date on 
                        which the alien files an application under this 
                        section that is less than 150 percent of the 
                        United States poverty level.
            ``(3) Removal stayed while application pending.--The 
        Secretary may not remove an alien from the United States who 
        appears prima facie eligible for provisional protected presence 
        while the alien's application for provisional protected 
        presence is pending.
            ``(4) Aliens not in immigration detention.--An alien who is 
        not in immigration detention, but who is in removal 
        proceedings, is the subject of a final removal order, or is the 
        subject of a voluntary departure order, may apply for 
        provisional protected presence under this section if the alien 
        appears prima facie eligible for provisional protected 
        presence.
            ``(5) Aliens in immigration detention.--The Secretary shall 
        provide any alien in immigration detention, including any alien 
        who is in removal proceedings, is the subject of a final 
        removal order, or is the subject of a voluntary departure 
        order, who appears prima facie eligible for provisional 
        protected presence, upon request, with a reasonable opportunity 
        to apply for provisional protected presence under this section.
            ``(6) Confidentiality.--
                    ``(A) In general.--The Secretary shall protect 
                information provided in applications for provisional 
                protected presence under this section and in requests 
                for consideration of DACA from disclosure to U.S. 
                Immigration and Customs Enforcement and U.S. Customs 
                and Border Protection for the purpose of immigration 
                enforcement proceedings.
                    ``(B) Referrals prohibited.--The Secretary may not 
                refer individuals whose cases have been deferred 
                pursuant to DACA or who have been granted provisional 
                protected presence under this section to U.S. 
                Immigration and Customs Enforcement.
                    ``(C) Limited exception.--The information submitted 
                in applications for provisional protected presence 
                under this section and in requests for consideration of 
                DACA may be shared with national security and law 
                enforcement agencies--
                            ``(i) for assistance in the consideration 
                        of the application for provisional protected 
                        presence;
                            ``(ii) to identify or prevent fraudulent 
                        claims;
                            ``(iii) for national security purposes; and
                            ``(iv) for the investigation or prosecution 
                        of any felony not related to immigration 
                        status.
            ``(7) Acceptance of applications.--Not later than 60 days 
        after the date of the enactment of the Three-Year Border and 
        DACA Extension Act, the Secretary shall begin accepting 
        applications for provisional protected presence and employment 
        authorization.
    ``(g) Rescission of Provisional Protected Presence.--The Secretary 
may not rescind an alien's provisional protected presence or employment 
authorization granted under this section unless the Secretary 
determines that the alien--
            ``(1) has been convicted of--
                    ``(A) a felony;
                    ``(B) a significant misdemeanor; or
                    ``(C) 3 or more misdemeanors not occurring on the 
                same date and not arising out of the same act, 
                omission, or scheme of misconduct;
            ``(2) poses a threat to national security or a threat to 
        public safety;
            ``(3) has traveled outside of the United States without 
        authorization from the Secretary; or
            ``(4) has ceased to continuously reside in the United 
        States.
    ``(h) Treatment of Brief, Casual, and Innocent Departures and 
Certain Other Absences.--For purposes of subsections (c)(3) and (g)(4), 
an alien shall not be considered to have failed to continuously reside 
in the United States due to--
            ``(1) brief, casual, and innocent absences from the United 
        States during the period beginning on June 15, 2007, and ending 
        on August 14, 2012; or
            ``(2) travel outside of the United States on or after 
        August 15, 2012, if such travel was authorized by the 
        Secretary.
    ``(i) Treatment of Expunged Convictions.--For purposes of 
subsections (c)(7) and (g)(1), an expunged conviction shall not 
automatically be treated as a disqualifying felony, significant 
misdemeanor, or misdemeanor, but shall be evaluated on a case-by-case 
basis according to the nature and severity of the offense to determine 
whether, under the particular circumstances, the alien should be 
eligible for provisional protected presence under this section.
    ``(j) Effect of Deferred Action Under Deferred Action for Childhood 
Arrivals Program.--
            ``(1) Provisional protected presence.--A DACA recipient is 
        deemed to have provisional protected presence under this 
        section through the expiration date of the alien's deferred 
        action status, as specified by the Secretary in conjunction 
        with the approval of the alien's DACA application.
            ``(2) Employment authorization.--If a DACA recipient has 
        been granted employment authorization by the Secretary in 
        addition to deferred action, the employment authorization shall 
        continue through the expiration date of the alien's deferred 
        action status, as specified by the Secretary in conjunction 
        with the approval of the alien's DACA application.
            ``(3) Effect of application.--If a DACA recipient files an 
        application for provisional protected presence under this 
        section not later than the expiration date of the alien's 
        deferred action status, as specified by the Secretary in 
        conjunction with the approval of the alien's DACA application, 
        the alien's provisional protected presence, and any employment 
        authorization, shall remain in effect pending the adjudication 
        of such application.''.
    (b) Clerical Amendment.--The table of contents for the Immigration 
and Nationality Act (8 U.S.C. 1101 note) is amended by inserting after 
the item relating to section 244 the following:

``Sec. 244A. Provisional protected presence.''.
                                                       Calendar No. 338

115th CONGRESS

  2d Session

                                S. 2464

_______________________________________________________________________

                                 A BILL

    To improve border security and to provide conditional provision 
residence to certain long-term residents who entered the United States 
                              as children.

_______________________________________________________________________

                           February 28, 2018

            Read the second time and placed on the calendar