[Congressional Record Volume 164, Number 35 (Tuesday, February 27, 2018)]
[Senate]
[Pages S1249-S1251]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. FLAKE (for himself and Ms. Heitkamp):
  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; read the first time.

                                S. 2464

       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.

[[Page S1250]]

       (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;

[[Page S1251]]

       ``(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.''.

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