111 S4787 IS: Afghan Adjustment Act
U.S. Senate
2022-08-07
text/xml
EN
Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.
II
117th CONGRESS
2d Session
S. 4787
IN THE SENATE OF THE UNITED STATES
August 7 (legislative day, August 6), 2022
Ms. Klobuchar (for herself, Mr. Graham, Mr. Coons, Mr. Blunt, Mr. Blumenthal, and Ms. Murkowski) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
A BILL
To provide support for nationals of Afghanistan who supported the United States mission in Afghanistan, adequate vetting for parolees from Afghanistan, adjustment of status for certain nationals of Afghanistan, and special immigrant status for at-risk Afghan allies and relatives of certain members of the Armed Forces, and for other purposes.
1.

Short title
This Act may be cited as the “Afghan Adjustment Act”.
2.

Definitions
(a)

In general
Except as otherwise specifically provided, any term used in this Act that is used in the immigration laws shall have the meaning given the term in the immigration laws.
(b)

Definitions
In this Act:
(1)

Immigration laws
The term immigration laws has the meaning given the term in section 101(a)(17) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(17)).
(2)

Special immigrant status
The term special immigrant status means special immigrant status provided under—
(A)
the Afghan Allies Protection Act of 2009 (8 U.S.C. 1101 note; Public Law 111–8); or
(B)
section 1059 of the National Defense Authorization Act for Fiscal Year 2006 (8 U.S.C. 1101 note; Public Law 109–163).
(3)

Specified application
The term specified application means—
(A)
an application for special immigrant status;
(B)
an application to seek admission to the United States through the United States Refugee Admission Program for an individual who has received a Priority 1 or Priority 2 referral to such program; and
(C)
an application for a special immigrant visa under section 7 or an amendment made by that section.
(4)

United States Refugee Admissions Program
The term United States Refugee Admissions Program means the program to resettle refugees in the United States pursuant to the authorities provided in sections 101(a)(42), 207, and 412 of the Immigration and Nationality Act (8 U.S.C. 1101(a)(42), 1157, and 1522).
3.

Sense of Congress
It is the sense of Congress that—
(1)
nationals of Afghanistan residing outside the United States who meet the requirements for admission to the United States through a specified application have aided the United States mission in Afghanistan during the past 20 years; and
(2)
the United States should increase support for such nationals.
4.

Support for Afghan allies outside of the United States
(a)

Response to congressional inquiries
The Secretary of State shall respond to inquiries by Members of Congress regarding a specified application submitted by, or on behalf of, a national of Afghanistan who has provided a confidentiality release.
(b)

Office in lieu of embassy
During the period in which there is no operational United States embassy in Afghanistan, the Secretary of State shall establish and maintain an office capable of—
(1)
reviewing specified applications submitted by nationals of Afghanistan residing in Afghanistan;
(2)
issuing visas to such nationals;
(3)
to the greatest extent practicable, providing services to such nationals that would normally be provided by an embassy; and
(4)
carrying out any other function the Secretary considers necessary.
5.

Interagency Task Force on Afghan Ally Strategy
(a)

Establishment
Not later than 180 days after the date of the enactment of this Act, the President shall establish an Interagency Task Force on Afghan Ally Strategy (referred to in this section as the “Task Force”)—
(1)
to develop and oversee the implementation of the strategy described in subsection (d)(1)(B)(iv); and
(2)
to submit the report, and provide a briefing on the report, described in subsection (d).
(b)

Membership
(1)

In general
The Task Force shall be comprised of—
(A)
the Secretary of State;
(B)
the Secretary of Homeland Security;
(C)
the Secretary of Defense;
(D)
the Director of the Federal Bureau of Investigation;
(E)
the Director of National Intelligence; and
(F)
any other Government official, as designated by the President.
(2)

Delegation
A member of the Task Force may designate a representative to carry out the duties under this section.
(c)

Chair
The Task Force shall be chaired by the Secretary of State.
(d)

Duties
(1)

Report and strategy
(A)

In general
Not later than 180 days after the date of the enactment of this Act, the Task Force shall submit to the Committee on Appropriations and the Committee on Foreign Relations of the Senate and the Committee on Appropriations and the Committee on Foreign Affairs of the House of Representatives a report that includes a strategy for supporting nationals of Afghanistan residing outside the United States who meet the requirements for admission to the United States through a specified application.
(B)

Elements
The report required by subparagraph (A) shall include the following:
(i)
Estimates of—
(I)
- (aa)
the total number of nationals of Afghanistan residing in Afghanistan who have submitted specified applications that are pending and, as of the date on which the report is submitted, have not been adjudicated; and
- (bb)
the number of such nationals, disaggregated by type of specified application described in subparagraphs (A), (B), and (C) of section 2(b)(3); and
(II)
- (aa)
the total number of nationals of Afghanistan residing in Afghanistan who meet the requirements for admission to the United States through specified applications; and
- (bb)
the number of such nationals, disaggregated by type of specified application described in subparagraphs (A), (B), and (C) of section 2(b)(3).
(ii)
A description of the steps the Secretary of State has taken and is taking to facilitate the relocation and resettlement of nationals of Afghanistan who—
(I)
supported the United States mission in Afghanistan; and
(II)
remain in Afghanistan or in third countries.
(iii)
An identification of all considerations, including resource constraints, that limit the ability of the Secretary of State to facilitate such relocations and resettlements.
(iv)
A strategy and detailed plan that—
(I)
sets forth the manner in which members of the Task Force will address such considerations in order to facilitate such relocations and resettlements over different periods of time (including 1-year, 5-year, and 10-year periods) and an analysis of the expected number of nationals of Afghanistan who would be relocated or resettled through such strategy; and
(II)
addresses the constraints and opportunities for expanding support for such relocations and resettlements, including—
- (aa)
the availability of remote processing for individuals residing in Afghanistan;
- (bb)
the availability and capacity of mechanisms for individuals to be relocated from Afghanistan, including air charter or land passage;
- (cc)
the availability and capacity of sites in third countries to process applications and conduct any required vetting, including identifying and establishing additional sites;
- (dd)
resource, personnel, and equipment requirements to increase the capacity to better support such nationals of Afghanistan and reduce application processing times;
- (ee)
the provision of updates and necessary information to affected individuals and relevant nongovernmental organizations; and
- (ff)
any other matter the Task Force considers relevant to the implementation of the strategy.
(v)
Recommendations for how Congress can expand the number of nationals of Afghanistan who can be relocated or resettled over such periods of time by providing additional authorities or resources.
(C)

Form
The report required by subparagraph (A) shall be submitted in unclassified form, but may include a classified annex.
(2)

Briefing
Not later than 60 days after submitting the report required by paragraph (1), the Task Force shall brief the Committee on Appropriations and the Committee on Foreign Relations of the Senate and the Committee on Appropriations and the Committee on Foreign Affairs of the House of Representatives on the contents of such report.
(e)

Termination
The Task Force shall remain in effect until the earlier of—
(1)
the date on which the strategy required by subsection (d)(1) has been fully implemented; or
(2)
the date that is 10 years after the date of the enactment of this Act.
6.

Adjustment of status for eligible Afghan nationals
(a)

Definition of eligible Afghan national
In this section, the term eligible Afghan national means—
(1)
an alien—
(A)
(i)
who is a citizen or national of Afghanistan; or
(ii)
in the case of an alien having no nationality, whose former or last habitual residence was in Afghanistan; and
(B)
(i)
who was inspected and admitted to the United States on or before the date of the enactment of this Act;
(ii)
who was paroled into the United States during the period beginning on July 30, 2021, and ending on the date of the enactment of this Act, provided that such parole has not been terminated by the Secretary of Homeland Security;
(iii)
whose travel to the United States was facilitated by, or coordinated with, the United States Government; or
(iv)
who arrived in the United States after the date of the enactment of this Act, provided that the Secretary of Homeland Security, in cooperation with other Federal agency partners, determines that the alien supported the United States mission in Afghanistan;
(2)
an alien who is the spouse or child (as defined in section 101(b)(1) of the Immigration and Nationality Act (8 U.S.C. 1101(b)(1))) of an alien described in paragraph (1); and
(3)
an alien who is the spouse or child (as defined in section 101(b)(1) of the Immigration and Nationality Act (8 U.S.C. 1101(b)(1))) of an alien described in paragraph (1) who is deceased.
(b)

Streamlined adjustment process for eligible Afghan nationals who supported the United States mission in afghanistan
(1)

In general
Notwithstanding any other provision of law, the Secretary of Homeland Security shall adjust the status of an eligible Afghan national to the status of an alien lawfully admitted for permanent residence if—
(A)
the eligible Afghan national—
(i)
has—
(I)
received Chief of Mission approval as part of their application for special immigrant status;
(II)
received a Priority 1 or Priority 2 referral to the United States Refugee Admissions Program; or
(III)
a pending application for special immigrant status that was submitted on or before July 31, 2018;
(ii)
submits an application for adjustment of status in accordance with procedures established by the Secretary of Homeland Security;
(iii)
subject to paragraph (2), is otherwise admissible to the United States as an immigrant, except that the grounds of inadmissibility under paragraphs (4), (5), and (7)(A) of section 212(a) the Immigration and Nationality Act (8 U.S.C. 1182(a)) shall not apply; and
(iv)
has complied with the vetting requirements under subsection (d)(1) to the satisfaction of the Secretary of Homeland Security; and
(B)
the Secretary of Homeland Security determines that the adjustment of status of the eligible Afghan national is not contrary to the national welfare, safety, or security of the United States.
(2)

Applicability of refugee admissibility requirements
The provisions relating to admissibility for a refugee seeking adjustment of status under section 209(c) of the Immigration and Nationality Act (8 U.S.C. 1159(c)) shall apply to an applicant for adjustment of status under this subsection.
(c)

Adjustment process for other eligible Afghan nationals
(1)

In general
Notwithstanding any other provision of law, the Secretary of Homeland Security shall adjust the status of an eligible Afghan national who does not meet the requirements set forth in subsection (b)(1)(A)(i) to the status of an alien lawfully admitted for permanent residence if—
(A)
the eligible Afghan national—
(i)
has been physically present in the United States for a period not less than 2 years;
(ii)
submits an application for adjustment of status in accordance with procedures established by the Secretary of Homeland Security;
(iii)
subject to paragraph (2), is otherwise admissible to the United States as an immigrant, except that the grounds of inadmissibility under paragraphs (4), (5), and (7)(A) of section 212(a) the Immigration and Nationality Act (8 U.S.C. 1182(a)) shall not apply; and
(iv)
has complied with the vetting requirements under paragraphs (1) and (2) of subsection (d) to the satisfaction of the Secretary of Homeland Security; and
(B)
the Secretary of Homeland Security determines that the adjustment of status of the eligible Afghan national is not contrary to the national welfare, safety, or security of the United States.
(2)

Waiver
(A)

In general
With respect to an applicant for adjustment of status under this subsection, subject to subparagraph (B), the Secretary of Homeland Security may waive any applicable ground of inadmissibility under section 212(a) of the Immigration and Nationality Act (8 U.S.C. 1182(a)) (other than paragraphs 2(C) or (3) of such section) for humanitarian purposes, to ensure family unity, or if a waiver is otherwise in the public interest.
(B)

Limitations
The Secretary of Homeland Security may not waive under this paragraph any applicable ground of inadmissibility under section 212(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(2)) that arises due to criminal conduct that was committed—
(i)
on or after July 30, 2021;
(ii)
within the United States; and
(iii)
by an applicant for adjustment of status under this subsection.
(C)

Rule of construction
Nothing in this paragraph may be construed to limit any other waiver authority.
(3)

Rule of construction
Nothing in this subsection may be construed to require the Secretary of Homeland Security to complete the vetting process with respect to an applicant for adjustment of status under this subsection within the 2-year period described in paragraph (1)(A)(i).
(d)

Interview and vetting requirements
(1)

Vetting requirements for all applicants
The Secretary of Homeland Security shall establish vetting requirements for applicants seeking adjustment of status under this section that are equivalent to the vetting requirements for refugees admitted to the United States through the United States Refugee Admissions Program, including an interview.
(2)

Additional vetting requirements for other eligible Afghan nationals
The Secretary of Homeland Security, in consultation with the Secretary of Defense, shall maintain records that contain, for each applicant under subsection (c) for the duration of the pendency of their application for adjustment of status—
(A)
personal biographic information, including name and date of birth;
(B)
biometric information;
(C)
any criminal conviction occurring after the date on which the applicant entered the United States; and
(D)
the history of the United States Government vetting to which the applicant has submitted, including whether the individual has undergone in-person vetting.
(3)

Rule of construction
Nothing in this subsection may be construed to limit the authority of the Secretary of Homeland Security to maintain records under any other law.
(e)

Protection for battered spouses
(1)

In general
An alien whose marriage to an eligible Afghan national described in paragraph (1) of subsection (a) has been terminated shall be eligible for adjustment of status under this section as an alien described in paragraph (2) of that subsection for not more than 2 years after the date on which such marriage is terminated if there is a demonstrated connection between the termination of the marriage and battering or extreme cruelty perpetrated by the principal applicant.
(2)

Applicability of other law
In reviewing an application for adjustment of status under this section with respect to spouses and children who have been battered or subjected to extreme cruelty, the Secretary of Homeland Security shall apply section 204(a)(1)(J) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)(J)) and section 384 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1367).
(f)

Date of approval
Upon the approval of an application for adjustment of status under this section, the Secretary of Homeland Security shall create a record of the alien’s admission as a lawful permanent resident as of the date on which the alien was inspected and admitted or paroled into the United States.
(g)

Prohibition on further authorization of parole
(1)

In general
Except as provided in paragraph (2), an individual who is a national of Afghanistan shall not be authorized for an additional period of parole if such individual—
(A)
is eligible to apply for adjustment of status under this section; and
(B)
fails to submit an application for adjustment of status by the later of—
(i)
the date that is 1 year after the date on which final guidance described in subsection (h)(2) is published; or
(ii)
the date that is 1 year after the date on which such individual becomes eligible to apply for adjustment of status under this section.
(2)

Exception
An individual described in paragraph (1)(A) may be authorized for an additional period of parole if such individual—
(A)
within the period described in paragraph (1)(B), seeks an extension to file an application for adjustment of status under this section; or
(B)
has previously submitted to a vetting equivalent of the vetting required under subsection (d).
(3)

Deadline for application
Except as provided in paragraph (2), a national of Afghanistan who does not submit an application for adjustment of status within the timeline provided in paragraph (1)(B) may not later adjust status under this section.
(h)

Implementation
(1)

Interim guidance
(A)

In general
Not later than 180 days after the date of the enactment of this Act, the Secretary of Homeland Security shall issue guidance implementing this section.
(B)

Publication
Notwithstanding section 553 of title 5, United States Code, such guidance—
(i)
may be published on the internet website of the Department of Homeland Security; and
(ii)
shall be effective on an interim basis immediately upon such publication but may be subject to change and revision after notice and an opportunity for public comment.
(2)

Final guidance
Not later than 1 year after the date of the enactment of this Act, the Secretary of Homeland Security shall finalize guidance implementing this section.
(i)

Administrative review
The Secretary of Homeland Security shall provide applicants for adjustment of status under this section with the same right to, and procedures for, administrative review as are provided to applicants for adjustment of status under section 245 of the Immigration and Nationality Act (8 U.S.C. 1255).
(j)

Prohibition on fees
The Secretary of Homeland Security may not charge a fee to any eligible Afghan national in connection with—
(1)
an application for adjustment of status or employment authorization under this section; or
(2)
the issuance of a permanent resident card or an employment authorization document.
(k)

Pending applications
During the period beginning on the date on which an alien files a bona fide application for adjustment of status under this section and ending on the date on which the Secretary of Homeland Security makes a final administrative decision regarding such application, any alien and any dependent included in such application who remains in compliance with all application requirements may not be—
(1)
removed from the United States unless the Secretary of Homeland Security makes a prima facie determination that the alien is, or has become, ineligible for adjustment of status under this section;
(2)
considered unlawfully present under section 212(a)(9)(B) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(9)(B)); or
(3)
considered an unauthorized alien (as defined in section 274A(h)(3) of the Immigration and Nationality Act (8 U.S.C. 1324a(h)(3))).
(l)

VAWA self petitioners
Section 101(a)(51) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(51)) is amended—
(1)
in subparagraph (F), by striking “or”;
(2)
in subparagraph (G), by striking the period at the end and inserting “; or”; and
(3)
by adding at the end the following:
“(H)
subsections (b) and (c) of section 6 of the Afghan Adjustment Act.”.
(m)

Exemption from numerical limitations
Aliens granted adjustment of status under this section shall not be subject to the numerical limitations under sections 201, 202, and 203 of the Immigration and Nationality Act (8 U.S.C. 1151, 1152, and 1153).
(n)

Rule of construction
Nothing in this section may be construed to preclude an eligible Afghan national from applying for or receiving any immigration benefit to which the eligible Afghan national is otherwise entitled.
7.

Special immigrant status for at-risk Afghan allies and relatives of certain members of the Armed Forces
(a)

At-Risk Afghan allies
(1)

In general
Subject to paragraph (4)(C), the Secretary of Homeland Security may provide an alien described in paragraph (2) (and the spouse, children of the alien if accompanying or following to join the alien) with the status of special immigrant under section 101(a)(27) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27)) if the alien—
(A)
or an agent acting on behalf of the alien, submits a petition for classification under section 203(b)(4) of such Act (8 U.S.C. 1153(b)(4));
(B)
is otherwise admissible to the United States and eligible for lawful permanent residence (excluding the grounds of inadmissibility under section 212(a)(4) of such Act (8 U.S.C. 1182(a)(4)));
(C)
clears a background check and appropriate screening, as determined by the Secretary of Homeland Security; and
(D)
the Secretary of Homeland Security determines that the adjustment of status of the alien is not contrary to the national welfare, safety, or security of the United States.
(2)

Alien described
An alien described in this paragraph is an alien who—
(A)
is a citizen or national of Afghanistan;
(B)
was a member of—
(i)
the Afghanistan National Army Special Operations Command;
(ii)
the Afghan Air Force;
(iii)
the Special Mission Wing of Afghanistan; or
(iv)
the Female Tactical Teams of Afghanistan; and
(C)
provided faithful and valuable service to an entity or organization described in subparagraph (B) for not less than 1 year.
(3)

Department of Defense assessment
(A)

In general
Not later than 30 days after receiving a request for an assessment from the Secretary of Homeland Security, the Secretary of Defense shall—
(i)
review the service record of the principal applicant;
(ii)
submit an assessment to the Secretary of Homeland Security as to whether—
(I)
the principal applicant meets the requirements under paragraph (2); and
(II)
the adjustment of status of such alien, and the spouse, children, and parents of such alien, if accompanying or following to join the alien, is not contrary to the national welfare, safety, or security of the United States; and
(iii)
submit with such assessment—
(I)
any service record concerned; and
(II)
any biometrics for the principal applicant that have been collected by the Department of Defense.
(B)

Effect of assessment
A favorable assessment under subparagraph (A)(ii) shall create a presumption that—
(i)
the principal applicant meets the requirements under paragraph (2); and
(ii)
the admission of such alien, and the spouse, children, and parents of the alien, if accompanying or following to join the alien, is not contrary to the national welfare, safety, or security of the United States.
(C)

Efficient processing
For purposes of a background check and appropriate screening required to be granted special immigrant status under this subsection, the Secretary of Homeland Security, as appropriate, shall use biometric data collected by the Secretary of Defense or the Secretary of State not more than 5 years before the date on which an application for such status is filed.
(b)

Special immigrant status for certain relatives of certain members of the armed forces
Section 101(a)(27) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27)) is amended—
(1)
in subparagraph (L)(iii), by adding a semicolon at the end;
(2)
in subparagraph (M), by striking the period at the end and inserting “; and”; and
(3)
by adding at the end the following:
“(N)
a citizen or national of Afghanistan who is the spouse, child, or unmarried son or daughter of—
(i)
a member of the armed forces (as defined in section 101(a) of title 10, United States Code); or
(ii)
a veteran (as defined in section 101 of title 38, United States Code).”.
(c)

General provisions
(1)

Prohibition on fees
The Secretary of Homeland Security, the Secretary of Defense, or the Secretary of State may not charge any fee in connection with an application for, or issuance of, a special immigrant visa under this section or an amendment made by this section.
(2)

Representation
An alien applying for admission to the United States under this section, or an amendment made by this section, may be represented during the application process, including at relevant interviews and examinations, by an attorney or other accredited representative. Such representation shall not be at the expense of the United States Government.
(3)

Exclusion from numerical limitations
Aliens provided special immigrant visas under this section, or an amendment made by this section, shall not be counted against any numerical limitation under section 201(d), 202(a), or 203(b)(4) of the Immigration and Nationality Act (8 U.S.C. 1151(d), 1152(a), and 1153(b)(4)) or section 602 of the Afghan Allies Protection Act of 2009 (Public Law 111–8; 8 U.S.C. 1101 note).
(4)

Assistance with passport issuance
The Secretary of State shall make a reasonable effort to ensure that an alien who is issued a special immigrant visa under this section, or an amendment made by this section, is provided with the appropriate series Afghan passport necessary to enter the United States.
(5)

Protection of aliens
The Secretary of State, in consultation with the heads of other appropriate Federal agencies, shall make a reasonable effort to provide an alien who is seeking special immigrant status under this section, or an amendment made by this section, protection or to immediately remove such alien from Afghanistan, if possible.
(6)

Other eligibility for immigrant status
No alien shall be denied the opportunity to apply for admission under this section, or an amendment made by this section, solely because the alien qualifies as an immediate relative or is eligible for any other immigrant classification.
(7)

Resettlement support
A citizen or national of Afghanistan who is granted special immigrant status described in section 101(a)(27) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27)) shall be eligible for resettlement assistance, entitlement programs, and other benefits available to refugees admitted under section 207 of such Act (8 U.S.C. 1157) to the same extent, and for the same periods of time, as such refugees.
(8)

Adjustment of status
Notwithstanding paragraph (2), (7), or (8) of subsection (c) of section 245 of the Immigration and Nationality Act (8 U.S.C. 1255), the Secretary of Homeland Security may adjust the status of an alien described in subparagraph (N) of section 101(a)(27) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27)) or subsection (a)(2) of this section to that of an alien lawfully admitted for permanent residence under subsection (a) of such section 245 if the alien—
(A)
was paroled or admitted as a nonimmigrant into the United States; and
(B)
is otherwise eligible for special immigrant status under—
(i)
this section; or
(ii)
the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).
(9)

Appeals
(A)

Administrative review
Not later than 30 days after the date of the enactment of this Act, the Secretary of Homeland Security shall provide to aliens who have applied for special immigrant status under this section a process by which an applicant may seek administrative appellate review of a denial of an applicant for special immigrant status or a revocation of such status.
(B)

Judicial review
Except as provided in subparagraph (C), and notwithstanding any other provision of law, an alien may seek judicial review of a denial of an application for special immigrant status or a revocation of such status under this Act, in an appropriate United States district court.
(C)

Stay of removal
(i)

In general
Except as provided in clause (ii), an alien seeking administrative or judicial review under this Act may not be removed from the United States until a final decision is rendered establishing that the alien is ineligible for special immigrant status under this section.
(ii)

Exception
The Secretary may remove an alien described in clause (i) pending judicial review if such removal is based on national security concerns. Such removal shall not affect the alien’s right to judicial review under this Act. The Secretary shall promptly return a removed alien if a decision to deny an application for special immigrant status under this Act, or to revoke such status, is reversed.
8.

Severability
If any provision of this Act, or the application of such provision to any person or circumstance, is held to be unconstitutional, the remainder of this Act, and the application of the remaining provisions of this Act, to any person or circumstance, shall not be affected.