[Congressional Record Volume 168, Number 158 (Thursday, September 29, 2022)]
[Senate]
[Pages S5686-S5687]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 6143. Ms. DUCKWORTH submitted an amendment intended to be proposed
to amendment SA 5499 submitted by Mr. Reed (for himself and Mr. Inhofe)
and intended to be proposed to the bill H.R. 7900, to authorize
appropriations for fiscal year 2023 for military activities of the
Department of Defense, for military construction, and for defense
activities of the Department of Energy, to prescribe military personnel
strengths for such fiscal year, and for other purposes; which was
ordered to lie on the table; as follows:
At the appropriate place, insert the following:
SEC. ___. ENLISTMENT OF CERTAIN ALIENS AND LEGAL STATUS FOR
SUCH ALIEN ENLISTEES.
(a) Definitions.--In this section:
(1) In general.--Except as otherwise specifically provided,
any term used in this section that is used in the immigration
laws shall have the meaning given such term in the
immigration laws.
(2) Armed forces.--The term ``Armed Forces'' has the
meaning given the term ``armed forces'' in section 101 of
title 10, United States Code.
(3) Immigration laws.--The term ``immigration laws'' has
the meaning given such term in section 101(a)(17) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(17)).
(b) Enlistment in the Armed Forces for Certain Aliens.--
Subsection (b)(1) of section 504 of title 10, United States
Code, is amended by adding at the end the following:
``(D)(i) An alien who--
``(I) subject to clause (ii), has been continuously
physically present in the United States for five years;
``(II) has completed, to the satisfaction of the Secretary
of Defense, the same background investigation process as is
required of qualified individuals seeking enlistment in an
armed force;
``(III) meets all other standards set forth for enlistment
in an armed force; and
``(IV) has been granted deferred action pursuant to the
Deferred Action for Childhood Arrivals policy announced by
the Secretary of Homeland Security on June 15, 2012;
``(aa) has been granted temporary protected status under
section 244 of the Immigration and Nationality Act (8 U.S.C.
1254a);
``(bb) is in possession of a valid, unexpired immigrant
visa; or
``(cc) is in possession of a valid, unexpired F, M, H-1B,
H1-B1, O, TN/TD, H-2A, H-2B nonimmigrant visa.
``(ii) An alien described in clause (i) who has departed
the United States during the five-year period referred to in
subclause (I) of that clause shall be eligible to enlist if
the alien so departed pursuant to an approved travel
document.''.
(c) Lawful Permanent Residence for Certain Alien Enlistees
of the Armed Forces.--
(1) Adjustment of status.--
(A) In general.--Notwithstanding any other provision of
law, the Secretary of Homeland Security or the Attorney
General shall adjust the status of an alien to that of
lawfully admitted for permanent residence if the alien--
(i)(I) subject to subparagraph (C), is not inadmissible
under paragraph (1), (6)(E), or (8) of section 212(a) of the
Immigration and Nationality Act (8 U.S.C. 1182(a));
(II) has not ordered, incited, assisted, or otherwise
participated in the persecution of any person on account of
race, religion, nationality, membership in a particular
social group, or political opinion; and
(III) is not barred from adjustment of status under this
Act based on the criminal and national security grounds
described under paragraph (2), subject to the provisions of
such paragraph;
(ii) has taken an enlistment oath under section 502 of
title 10, United States Code; and
(iii) has reported to and, subject to subparagraph (B), has
successfully completed initial entry training.
(B) Medical exception.--The Secretary of Homeland Security
or the Attorney General shall adjust the status of an alien
to that of lawfully admitted for permanent residence an alien
who meets the qualifications under clauses (i) and (ii) of
subparagraph (A), but who has not successfully completed
initial entry training for medical reasons, if such medical
reasons are certified by the Secretary of the applicable
military department.
(C) Waiver of grounds of inadmissibility.--With respect to
any benefit under this subsection, and in addition to the
waivers under paragraph (2)(C), the Secretary of Homeland
Security may waive the grounds of inadmissibility under
paragraph (1) or (6)(E) of section 212(a) of the Immigration
and Nationality Act (8 U.S.C. 1182(a)) for humanitarian
purposes, for family unity, or because the waiver is
otherwise in the public interest.
(D) Application fee.--
(i) In general.--The Secretary of Homeland Security may,
subject to an exemption under clause (ii), require an alien
applying under this subsection to pay a reasonable fee that
is commensurate with the cost of processing the application,
but does not exceed $495.
(ii) Exemption.--An applicant may be exempted from paying
an application fee required under this subsection if the
applicant--
(I) is 18 years of age or younger;
(II) received total household income, during the 1-year
period immediately preceding the date on which the applicant
files an application under this subsection, that is at or
below 150 percent of the Federal poverty line; or
(III) is in foster care or otherwise lacks any parental or
other familial support.
(E) Submission of biometric and biographic data; background
checks.--
(i) Submission of biometric and biographic data.--The
Secretary of Homeland Security may not grant an alien
adjustment of status under this subsection unless the alien
submits biometric and biographic data, in accordance with
procedures established by the Secretary of Homeland Security.
The Secretary of Homeland Security shall provide an
alternative procedure for aliens who are unable to provide
such biometric or biographic data because of a physical
impairment.
(ii) Background checks.--The Secretary of Homeland Security
shall use biometric, biographic, and other data that the
Secretary of Homeland Security determines appropriate to
conduct security and law enforcement background checks and to
determine whether there is any criminal, national security,
[[Page S5687]]
or other factor that would render the alien ineligible for
adjustment of status under this subsection. The status of an
alien may not be adjusted unless security and law enforcement
background checks are completed to the satisfaction of the
Secretary of Homeland Security.
(2) Criminal and national security bars.--
(A) Definitions.--In this paragraph:
(i) Crime of domestic violence.--The term ``crime of
domestic violence'' means any offense that has as an element
the use, attempted use, or threatened use of physical force
against a person committed by a current or former spouse of
the person, by an individual with whom the person shares a
child in common, by an individual who is cohabiting with or
has cohabited with the person as a spouse, by an individual
similarly situated to a spouse of the person under the
domestic or family violence laws of the jurisdiction where
the offense occurs, or by any other individual against a
person who is protected from that individual's acts under the
domestic or family violence laws of the United States or any
State, a Tribal government, or a unit of local government.
(ii) Felony offense.--The term ``felony offense'' means an
offense under Federal or State law that is punishable by a
maximum term of imprisonment of more than 1 year.
(iii) Misdemeanor offense.--The term ``misdemeanor
offense'' means an offense under Federal or State law that is
punishable by a term of imprisonment of more than 5 days but
not more than 1 year.
(B) Grounds of ineligibility.--Except as provided in
subparagraph (C), an alien is ineligible for adjustment of
status under this subsection if any of the following apply:
(i) The alien is inadmissible under paragraph (2) or (3) of
section 212(a) of the Immigration and Nationality Act (8
U.S.C. 1182(a)).
(ii) Excluding any offense under State law for which an
essential element is the alien's immigration status, and any
minor traffic offense, the alien has been convicted of--
(I) any felony offense;
(II) 3 or more misdemeanor offenses (excluding simple
possession of cannabis or cannabis-related paraphernalia, any
offense involving cannabis or cannabis-related paraphernalia
which is no longer prosecutable in the State in which the
conviction was entered, and any offense involving civil
disobedience without violence) not occurring on the same
date, and not arising out of the same act, omission, or
scheme of misconduct; or
(III) a misdemeanor offense of domestic violence, unless
the alien demonstrates that such crime is related to the
alien having been--
(aa) a victim of domestic violence, sexual assault,
stalking, child abuse or neglect, abuse or neglect in later
life, or human trafficking;
(bb) battered or subjected to extreme cruelty; or
(cc) a victim of criminal activity described in section
101(a)(15)(U)(iii) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(15)(U)(iii)).
(C) Waivers for certain misdemeanors.--For humanitarian
purposes, family unity, or if otherwise in the public
interest, the Secretary of Homeland Security may--
(i) waive the grounds of inadmissibility under
subparagraphs (A), (C), and (D) of section 212(a)(2) of the
Immigration and Nationality Act (8 U.S.C. 1182(a)(2)), unless
the conviction forming the basis for inadmissibility would
otherwise render the alien ineligible under subparagraph
(B)(ii) (subject to clause (ii)); and
(ii) for purposes of subclauses (II) and (III) of
subparagraph (B)(ii), waive consideration of--
(I) one misdemeanor offense if the alien has not been
convicted of any offense in the 5-year period preceding the
date on which the alien applies for adjustment of status
under this subsection; or
(II) up to 2 misdemeanor offenses if the alien has not been
convicted of any offense in the 10-year period preceding the
date on which the alien applies for adjustment of status
under this subsection.
(3) Rescission.--
(A) In general.--Section 246 of the Immigration and
Nationality Act (8 U.S.C. 1256) shall apply to an alien whose
status is adjusted under paragraph (1).
(B) Other grounds applicable.--
(i) In general.--The Secretary of Homeland Security may
rescind the lawful permanent resident status of an alien
whose status was adjusted under paragraph (1) if, during the
5-year period beginning on the date on which such status was
granted, the Secretary of Defense characterizes any period of
the alien's service in the Armed Forces as other than
honorable, bad conduct, or dishonorable.
(ii) Exception.--The Secretary of Homeland Security may not
rescind the lawful permanent resident status of an alien
under this subparagraph based on any period of an alien's
service in the Armed Forces that is uncharacterized by the
Secretary of Defense.
(C) Proof of service characterization.--For purposes of
this paragraph, proof of characterization of service in the
Armed Forces shall be authenticated by the Secretary of
Defense.
(4) Confidentiality of information.--
(A) In general.--The Secretary of Homeland Security or the
Secretary of Defense may not disclose or use for purposes of
immigration enforcement information provided in--
(i) documentation filed under this subsection; or
(ii) enlistment applications filed, or inquiries made,
under section 504(b)(1)(D) of title 10, United States Code.
(B) Treatment of records.--
(i) In general.--Documentation filed under this
subsection--
(I) shall be collected pursuant to section 552a of title 5,
United States Code (commonly known as the ``Privacy Act of
1974''); and
(II) may not be disclosed under subsection (b)(7) of that
section for purposes of immigration enforcement.
(ii) Destruction.--In the cases of individuals who attempt
to enlist but do not successfully do so, the Secretary of
Homeland Security and the Secretary of Defense shall destroy
information provided in documentation filed under this
subsection not later than 60 days after the date on which the
individual concerned is denied enlistment or fails to
complete basic training, as applicable, except in the case of
an alien described in paragraph (1)(B).
(C) Referrals prohibited.--The Secretary of Homeland
Security or the Secretary of Defense (or any designee of the
Secretary of Homeland Security or the Secretary of Defense)
based solely on information provided in an application for
adjustment of status under this subsection or an enlistment
application filed, or an inquiry made, under section
504(b)(1)(D) of title 10, United States Code, may not refer
an individual to U.S. Immigration and Customs Enforcement,
U.S. Customs and Border Protection.
(D) Limited exception.--Notwithstanding subparagraphs (A)
through (C), information provided in an application for
adjustment of status under this subsection may be shared with
Federal security and law enforcement agencies--
(i) for assistance in the consideration of an application
for adjustment of status under this subsection;
(ii) to identify or prevent fraudulent claims;
(iii) for national security purposes pursuant to section
6611 of the National Defense Authorization Act for Fiscal
Year 2020 (50 U.S.C. 3352f); or
(iv) for the investigation or prosecution of any Federal
crime, except any offense, other than a fraud or false
statement offense, that is--
(I) related to immigration status; or
(II) a petty offense (as defined in section 19 of title 18,
United States Code).
(E) Penalty.--Any person who knowingly and willfully uses,
publishes, or examines, or permits such use, publication, or
examination of, any information produced or provided by, or
collected from, any source or person under this section and
in violation of this subsection shall be guilty of a
misdemeanor and fined not more than $5,000.
(5) Rule of construction.--Nothing in this section, or an
amendment made by this section, may be construed to modify--
(A) the process prescribed by sections 328, 329, and 329A
of the Immigration and Nationality Act (8 U.S.C. 1439, 1440,
1440-1) by which a person may naturalize through service in
the Armed Forces; or
(B) the qualifications for original enlistment in any
component of the Armed Forces otherwise prescribed by law or
the Secretary of Defense.
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