[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 166 Introduced in Senate (IS)]

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116th CONGRESS
  1st Session
                                 S. 166

To provide provisional protected presence status for certain aliens and 
    to provide mandatory appropriations relating to border security.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            January 16, 2019

  Mr. Graham introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To provide provisional protected presence status for certain aliens and 
    to provide mandatory appropriations relating to border security.

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

SECTION 1. PROVISIONAL PROTECTED PRESENCE.

    (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 one 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 one 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 five days and not 
        greater than one 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 files an application demonstrating that he or she 
        meets the eligibility criteria under subsection (c) and 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 under this section and employment authorization if 
the alien--
            ``(1) was born after June 15, 1981;
            ``(2) entered the United States before attaining 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) three or more misdemeanors not occurring on 
                the same date and not arising out of the same act, 
                omission, or scheme of misconduct;
            ``(8) is a DACA recipient; and
            ``(9) 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 the employment 
authorization provided under this section shall be effective until the 
date that is three years after the date of the enactment of this 
section.
    ``(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 this section, 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) three 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.''.

``SEC. 244B. RENEWABLE PROVISIONAL PROTECTED PRESENCE.

    ``(a) In General.--The Secretary of Homeland Security (referred to 
in this section as the `Secretary') shall grant provisional protected 
presence, for a period of 3 years and renewable indefinitely, to an 
alien who--
            ``(1) submits an application for such status to the 
        Secretary not later than 21 years after the first day on which 
        applications for such status are accepted;
            ``(2) is admissible as an immigrant under this Act at the 
        time of examination for such status, except that in the 
        determination of the alien's admissibility for purposes of this 
        section, the Secretary shall apply the terms of section 
        244(c)(2)(A);
            ``(3) was granted temporary protected status or deferred 
        enforced departure on or before October 1, 2017;
            ``(4) has been continuously physically present in the 
        United States for a period of not less than 5 years immediately 
        preceding the date of the enactment of this section; and
            ``(5) has not been convicted of--
                    ``(A) a felony; nor
                    ``(B) 2 or more misdemeanors not occurring on the 
                same date and not arising out of the same act, 
                omission, or scheme of misconduct.
    ``(b) Procedures.--The Secretary shall establish a procedure 
allowing eligible individuals to apply for the relief available under 
this section without requiring placement in removal proceedings. Such 
procedure shall provide for the ability of a minor to apply for such 
relief, including through a legal guardian or counsel.
    ``(c) Application Fee.--The Secretary may require an alien applying 
for provisional protected presence under this section to pay a 
reasonable fee that is commensurate with the cost of processing the 
application.
    ``(d) Submission of Biometric and Biographic Data.--The Secretary 
may not grant an alien provisional protected presence 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 aliens who are unable to 
provide such biometric or biographic data because of a physical 
impairment.
    ``(e) Background Checks.--
            ``(1) Requirement for background checks.--The Secretary 
        shall use biometric, biographic, and other data that the 
        Secretary determines appropriate--
                    ``(A) to conduct security and law enforcement 
                background checks of an alien seeking provisional 
                protected presence 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 status.
            ``(2) Completion of background checks.--The security and 
        law enforcement background checks of an alien required under 
        paragraph (1) shall be completed, to the satisfaction of the 
        Secretary, before the date on which the Secretary grants such 
        alien provisional protected presence under this section.
            ``(3) Criminal records requests.--The Secretary, in 
        cooperation with the Secretary of State, shall seek to obtain 
        information about any criminal activity the alien engaged in, 
        or for which the alien was convicted in his or her country of 
        nationality, country of citizenship, or country of last 
        habitual residence, from INTERPOL, EUROPOL, or any other 
        international or national law enforcement agency of the alien's 
        country of nationality, country of citizenship, or country of 
        last habitual residence.
    ``(f) Treatment of Brief, Casual, and Innocent Departures.--For 
purposes of subsection (a)(4), an alien shall not be considered to have 
failed to maintain continuous residence in the United States by virtue 
of brief, casual, and innocent absences from the United States.''.
    (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.
``Sec. 244B. Renewable provisional protected presence.''.

SEC. 2. MANDATORY APPROPRIATIONS.

    (a) In General.--Notwithstanding any other provision of law, out of 
any funds in the Treasury not otherwise appropriated, the Secretary of 
the Treasury shall transfer to the Secretary of Homeland Security and 
the Attorney General, as applicable, to remain available until 
expended--
            (1) $5,700,000,000 for U.S. Customs and Border Protection 
        for procurement, construction, and improvements;
            (2) $800,000,000 for urgent humanitarian needs to ensure 
        the well-being of individuals taken into the custody of U.S. 
        Customs and Border Protection, including for enhanced medical 
        support, transportation, consumable supplies, and additional 
        temporary facilities for processing and short-term custody of 
        vulnerable aliens;
            (3) $563,000,000 for the Executive Office for Immigration 
        Review to hire not fewer than 75 additional immigration judges 
        and support staff to reduce the backlog of cases pending before 
        the Executive Office for Immigration Review; and
            (4) $211,000,000 to hire not fewer than 750 additional 
        Border Patrol Agents to safeguard and secure the international 
        borders of the United States.
    (b) Receipt and Acceptance.--The Secretary of Homeland Security and 
the Attorney General, as applicable, shall be entitled to receive, 
shall accept, and shall use the funds transferred under subsection (a) 
for the purposes described in that subsection, without further 
appropriation.
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