H.R. 3271 (108^th): Earned Legalization and Family Unification Act of 2003

HR 3271 IH

To amend the Immigration and Nationality Act to provide for permanent resident status for certain long-term resident workers and college-bound students, to modify the worldwide level of family-sponsored immigrants in order to promote family unification, and for other purposes.

October 8, 2003

Mr. GEPHARDT (for himself, Mr. SERRANO, Ms. JACKSON-LEE of Texas, Mr. FROST, Mr. CROWLEY, Mr. FARR, Ms. SOLIS, Mr. RODRIGUEZ, Mr. BECERRA, Mrs. NAPOLITANO, Mr. REYES, and Mr. GREEN of Texas) introduced the following bill; which was referred to the Committee on the Judiciary

To amend the Immigration and Nationality Act to provide for permanent resident status for certain long-term resident workers and college-bound students, to modify the worldwide level of family-sponsored immigrants in order to promote family unification, and for other purposes.

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘Earned Legalization and Family Unification Act of 2003’.

SEC. 2. LEGALIZATION OF STATUS.

(a) IN GENERAL- Chapter 5 of title II of the Immigration and Nationality Act (8 U.S.C. 1255 et seq.) is amended by inserting after section 245A the following new section:

‘ADJUSTMENT OF STATUS OF CERTAIN LONG-TERM RESIDENT WORKERS AND COLLEGE-BOUND STUDENTS TO THAT OF ALIEN LAWFULLY ADMITTED FOR PERMANENT RESIDENCE

‘SEC. 245B. (a) ADJUSTMENT TO PERMANENT RESIDENT STATUS FOR CERTAIN WORKERS, SPOUSES, AND CHILDREN- The Attorney General shall adjust the status of an alien to that of an alien lawfully admitted for permanent residence if the alien meets the following requirements:

‘(1) TIMELY APPLICATION-

‘(A) DURING APPLICATION PERIOD- Except as provided in subparagraph (B), the alien must apply for such adjustment during the 36-month period beginning on the date final regulations are issued to carry out this section.

‘(B) INFORMATION INCLUDED IN APPLICATION- Each application under this subsection shall contain such information as the Attorney General may require, including information on living relatives of the applicant with respect to whom a petition for preference or other status may be filed by the applicant at any later date under section 204(a).

‘(2) CONTINUOUS 5-YEAR RESIDENCE-

‘(A) IN GENERAL- The alien must establish that the alien--

‘(i) entered the United States before the date that is 5 years before the date of the enactment of this Act;

‘(ii) has resided continuously in the United States during the 5-year period ending on the date of the enactment of this Act and through the date the application was filed under this subsection; and

‘(iii) was in the United States on the date of the enactment of this Act in an unlawful status and has resided continuously in the United States in an unlawful status since such date and through the date the application was filed under this subsection.

‘(B) NONIMMIGRANTS- In the case of an alien who entered the United States as a nonimmigrant before the date of the enactment of this Act, the alien must also establish that the alien’s period of authorized stay as a nonimmigrant expired before such date through the passage of time or the alien’s unlawful status was known to the Government as of such date.

‘(C) EXCHANGE VISITORS- If the alien was at any time a nonimmigrant exchange alien (as defined in section 101(a)(15)(J)), the alien must establish that the alien was not subject to the two-year foreign residence requirement of section 212(e) or has fulfilled that requirement or received a waiver thereof.

‘(D) OTHER LAWFUL ALIENS- Notwithstanding any other provision of this paragraph, in the case of an alien who is in a lawful status, other than a nonimmigrant status, on the date of the enactment of this Act, the alien must establish that the alien has resided continuously in the United States in such status during the 5-year period ending on the date of the enactment of this Act.

‘(3) CONTINUOUS PRESENCE SINCE ENACTMENT-

‘(A) IN GENERAL- The alien must establish that the alien has been continuously present in the United States since the date of the enactment of this section.

‘(B) TREATMENT OF BRIEF, CASUAL, AND INNOCENT ABSENCES- An alien shall not be considered to have failed to maintain a continuous presence in the United States for purposes of subparagraph (A), or continuous residence in the United States for purposes of paragraph (2), by virtue of brief, casual, and innocent absences from the United States.

‘(C) ADMISSIONS- Nothing in this section shall be construed as authorizing an alien to apply for admission to, or to be admitted to, the United States in order to apply for adjustment of status under this subsection.

‘(4) ADMISSIBLE AS IMMIGRANT- The alien must establish that the alien--

‘(A) is admissible to the United States as an immigrant, except as otherwise provided under subsection (e)(2);

‘(B) has not been convicted of any felony or of three or more misdemeanors committed in the United States;

‘(C) has not assisted in the persecution of any person or persons on account of race, religion, nationality, membership in a particular social group, or political opinion; and

‘(D) is registered or registering under the Military Selective Service Act, if the alien is required to be so registered under that Act.

‘(5) EMPLOYMENT IN UNITED STATES-

‘(A) IN GENERAL- The alien must have been employed (whether or not lawfully) in the United States, in the aggregate, for at least 520 of the workdays occurring during the 5-year period ending on the date of the enactment of this Act.

‘(B) EXCEPTION FOR ALIEN CHILDREN- Subparagraph (A) shall not apply to an individual under 23 years of age on the date on which the application was filed under this subsection.

‘(C) EVIDENCE OF EMPLOYMENT- For purposes of satisfying the requirement of subparagraph (A), the alien may submit, among other evidence--

‘(i) records maintained by the Commissioner of Social Security;

‘(ii) other employment records;

‘(iii) tax records;

‘(iv) bank account records; and

‘(v) attestations from community leaders, religious leaders, co-workers, or store owners.

‘(D) BURDEN OF PROOF- An alien applying for adjustment of status under this subsection has the burden of proving by a preponderance of the evidence that the alien has worked the requisite number of days (as required under subparagraph (A)). An alien can meet such burden of proof by producing sufficient evidence to show the extent of that employment as a matter of just and reasonable inference. In such a case, the burden then shifts to the Attorney General to disprove the alien’s evidence with a showing which negates the reasonableness of the inference to be drawn from the evidence.

‘(6) PAYMENT OF INCOME TAXES-

‘(A) IN GENERAL- The alien must demonstrate the payment of all Federal and State income taxes owed for employment during the 3-year period preceding the date the application was filed under this subsection. The alien may satisfy such requirement through demonstrating that no such tax liability exists or through satisfaction of all outstanding liabilities (including through execution of a binding agreement to pay back taxes owing).

‘(7) BASIC CITIZENSHIP SKILLS-

‘(A) IN GENERAL- The alien must demonstrate that the alien either--

‘(i) meets the requirements of section 312(a) (relating to minimal understanding of ordinary English and a knowledge and understanding of the history and government of the United States); or

‘(ii) is satisfactorily pursuing a course of study (recognized by the Attorney General) to achieve such an understanding of English and such a knowledge and understanding of the history and government of the United States.

‘(B) EXCEPTIONS-

‘(i) MANDATORY- The requirements of subparagraph (A) shall not apply to any person who is--

‘(I) 65 years of age or older; or

‘(II) unable because of physical or developmental disability or mental impairment to comply therewith.

‘(ii) DISCRETIONARY- The Attorney General may, in his discretion, waive all or part of the requirements of subparagraph (A) in the case of an alien who is 50 years of age or older.

‘(C) RELATION TO NATURALIZATION EXAMINATION- In accordance with regulations of the Attorney General, an alien who has demonstrated under subparagraph (A)(i) that the alien meets the requirements of section 312(a) may be considered to have satisfied the requirements of that section for purposes of becoming naturalized as a citizen of the United States under title III.

‘(b) FAMILY UNIFICATION- An alien who, as of the date of filing an application under subsection (a), is the spouse or child of an alien who qualifies for adjustment of status under subsection (a) shall, if not otherwise entitled to such adjustment of status, be entitled to the same status if accompanying or following to join the spouse or parent if--

‘(1) the spouse or child meets the requirements of subsection (a)(4); and

‘(2) the spouse or child was included in the application information required under subsection (a)(1)(B).

‘(c) ADJUSTMENT TO PERMANENT RESIDENT STATUS FOR CERTAIN CHILDREN IN MIDDLE OR SECONDARY SCHOOL-

‘(1) IN GENERAL- The Attorney General shall adjust the status of an alien to that of an alien lawfully admitted for permanent residence if the alien meets the following requirements:

‘(A) TIMELY APPLICATION-

‘(i) AGE ON APPLICATION DATE- The alien must not have attained 25 years of age before the date on which the application for adjustment under this subsection was filed.

‘(ii) OTHER REQUIREMENTS- The requirements of subparagraphs (A) and (B) of subsection (a)(1) shall apply to an application under this subsection.

‘(B) CONTINUOUS PRESENCE-

‘(i) IN GENERAL- The alien must establish that the alien was present in the United States on the date of the enactment of this section and has been present in the United States for a continuous period of not less than 5 years immediately preceding the date on which the application under subparagraph (A) was filed.

‘(ii) TREATMENT OF BRIEF, CASUAL, AND INNOCENT ABSENCES- An alien shall not be considered to have failed to maintain a continuous presence in the United States for purposes of clause (i) by virtue of brief, casual, and innocent absences from the United States.

‘(iii) ADMISSIONS- Nothing in this section shall be construed as authorizing an alien to apply for admission to, or to be admitted to, the United States in order to apply for adjustment of status under this subsection.

‘(C) GOOD MORAL CHARACTER- The alien must demonstrate that the alien has been a person of good moral character during the 5 years immediately preceding the date on which the application under subparagraph (A) was filed.

‘(D) STUDENT- The alien, at the time of application, must be enrolled at or above the 7th grade level in a school in the United States or be enrolled in, or actively pursuing admission to, an institution of higher education in the United States (as defined in section 101 of the Higher Education Act of 1965 (20 U.S.C. 1001)).

‘(E) ADMISSIBLE AS IMMIGRANT- The alien must satisfy the requirements of subsection (a)(4).

‘(2) NO DERIVATIVE RIGHT OF PARENTS- The parent of an alien who adjusts status pursuant to this subsection shall not be granted the same status by reason of accompanying or following to join unless otherwise entitled to such status.

‘(d) APPLICATIONS FOR ADJUSTMENT OF STATUS-

‘(1) TO WHOM MAY BE MADE- The Attorney General shall provide that applications for adjustment of status under this section may be filed--

‘(A) with the Attorney General; or

‘(B) with a qualified designated entity, but only if the applicant consents to the forwarding of the application to the Attorney General.

As used in this section, the term ‘qualified designated entity’ means an organization or person designated under paragraph (2).

‘(2) DESIGNATION OF QUALIFIED ENTITIES TO RECEIVE APPLICATIONS- For purposes of assisting in the program of legalization provided under this section, the Attorney General--

‘(A) shall designate qualified voluntary organizations and other qualified State, local, and community organizations; and

‘(B) may designate such other persons as the Attorney General determines are qualified and have substantial experience, demonstrated competence, and traditional long-term involvement in the preparation and submittal of applications for adjustment of status under section 209 or 245, Public Law 89-732, or Public Law 95-145 (including qualified designated entities under section 245A).

‘(3) TREATMENT OF APPLICATIONS BY DESIGNATED ENTITIES- Each qualified designated entity must agree to forward to the Attorney General applications filed with it in accordance with paragraph (1)(B) but not to forward to the Attorney General applications filed with it unless the applicant has consented to such forwarding. No such entity may make a determination required by this section to be made by the Attorney General.

‘(4) LIMITATION ON ACCESS TO INFORMATION- Files and records of qualified designated entities relating to an alien’s seeking assistance or information with respect to filing an application under this section are confidential and the Attorney General and the Service shall not have access to such files or records relating to an alien without the consent of the alien.

‘(5) CONFIDENTIALITY OF INFORMATION-

‘(A) IN GENERAL- Except as provided in this paragraph, neither the Attorney General, nor any other official or employee of the Department of Justice, or bureau or agency thereof, may--

‘(i) use the information furnished by the applicant pursuant to an application filed under this section for any purpose other than to make a determination on the application for enforcement of paragraph (6), or for the preparation of reports to Congress under law;

‘(ii) make any publication whereby the information furnished by any particular applicant can be identified; or

‘(iii) permit anyone other than the sworn officers and employees of the Department or bureau or agency or, with respect to applications filed with a designated entity, that designated entity, to examine individual applications.

‘(B) REQUIRED DISCLOSURES- The Attorney General shall provide the information furnished under this section, and any other information derived from such furnished information, to a duly recognized law enforcement entity in connection with a criminal investigation or prosecution, when such information is requested in writing by such entity, or to an official coroner for purposes of affirmatively identifying a deceased individual (whether or not such individual is deceased as a result of a crime).

‘(C) AUTHORIZED DISCLOSURES- The Attorney General may provide, in the Attorney General’s discretion, for the furnishing of information furnished under this section in the same manner and circumstances as census information may be disclosed by the Secretary of Commerce under section 8 of title 13, United States Code.

‘(D) CONSTRUCTION-

‘(i) IN GENERAL- Nothing in this paragraph shall be construed to limit the use, or release, for immigration enforcement purposes or law enforcement purposes of information contained in files or records of the Service pertaining to an application filed under this section, other than information furnished by an applicant pursuant to the application, or any other information derived from the application, that is not available from any other source.

‘(ii) CRIMINAL CONVICTIONS- Information concerning whether the applicant has at any time been convicted of a crime may be used or released for immigration enforcement purposes.

‘(E) CRIME- Whoever knowingly uses, publishes, or permits information to be examined in violation of this paragraph shall be fined not more than $10,000.

‘(6) PENALTIES FOR FALSE STATEMENTS IN APPLICATIONS- Whoever files an application for adjustment of status under this section and knowingly and willfully falsifies, misrepresents, conceals, or covers up a material fact or makes any false, fictitious, or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry, shall be fined in accordance with title 18, United States Code, or imprisoned not more than 5 years, or both.

‘(7) APPLICATION FEES-

‘(A) FEE SCHEDULE- The Attorney General, in consultation with the Congress, shall provide for a schedule of fees to be charged for the filing of applications for adjustment under this section. Such fees may not exceed $100 per individual or $300 per family.

‘(B) USE OF FEES- The Attorney General shall deposit payments received under this paragraph in a separate account and amounts in such account shall be available, without fiscal year limitation, to cover administrative and other expenses incurred in connection with the review of applications filed under this section.

‘(e) WAIVER OF NUMERICAL LIMITATIONS AND CERTAIN GROUNDS FOR INADMISSIBILITY-

‘(1) NUMERICAL LIMITATIONS DO NOT APPLY- The numerical limitations of sections 201 and 202 shall not apply to the adjustment of aliens to lawful permanent resident status under this section.

‘(2) WAIVER OF GROUNDS FOR INADMISSIBILITY- In the determination of an alien’s admissibility under this section, the following provisions shall apply:

‘(A) GROUNDS OF INADMISSIBILITY NOT APPLICABLE- The provisions of paragraphs (5), (6)(A), (6)(C), (6)(F), (6)(G), (7)(A), (9)(B), and (9)(C) of section 212(a) shall not apply.

‘(B) WAIVER OF OTHER GROUNDS-

‘(i) IN GENERAL- Except as provided in clause (ii), the Attorney General may waive any other provision of section 212(a) in the case of individual aliens for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.

‘(ii) GROUNDS THAT MAY NOT BE WAIVED- The following provisions of section 212(a) may not be waived by the Attorney General under clause (i):

‘(I) Paragraphs (2)(A) and (2)(B) (relating to criminals).

‘(II) Paragraph (2)(C) (relating to drug offenses), except for so much of such paragraph as relates to a single offense of simple possession of 30 grams or less of marijuana.

‘(III) Paragraph (3) (relating to security and related grounds).

‘(IV) Paragraph (4) (relating to aliens likely to become public charges).

Subclause (IV) (prohibiting the waiver of section 212(a)(4)) shall not apply to an alien who is or was an aged, blind, or disabled individual (as defined in section 1614(a)(1) of the Social Security Act).

‘(iii) SPECIAL RULE FOR DETERMINATION OF PUBLIC CHARGE- An alien is not ineligible for adjustment of status under this section due to being inadmissible under section 212(a)(4) if the alien demonstrates a history of employment in the United States evidencing self-support without receipt of public cash assistance.

‘(C) MEDICAL EXAMINATION- The alien shall be required, at the alien’s expense, to undergo such a medical examination (including a determination of immunization status) as is appropriate and conforms to generally accepted professional standards of medical practice.

‘(f) TEMPORARY STAY OF REMOVAL AND WORK AUTHORIZATION FOR CERTAIN APPLICANTS-

‘(1) BEFORE APPLICATION PERIOD- The Attorney General shall provide that in the case of an alien who is apprehended before the beginning of the application period described in subsection (a)(1)(A) and who can establish a prima facie case of eligibility to have the alien’s status adjusted under this section (but for the fact that the alien may not apply for such adjustment until the beginning of such period), until the alien has had the opportunity during the first 120 days of the application period to complete the filing of an application for adjustment, the alien--

‘(A) may not be removed from the United States; and

‘(B) shall be granted authorization to engage in employment in the United States and be provided an ‘employment authorized’ endorsement or other appropriate work permit.

‘(2) DURING APPLICATION PERIOD- The Attorney General shall provide that in the case of an alien who presents a prima facie application for adjustment of status under this section during the application period, and until a final determination on the application has been made in accordance with this section, including any judicial review thereof, the alien--

‘(A) may not be removed from the United States; and

‘(B) shall be granted authorization to engage in employment in the United States and be provided an ‘employment authorized’ endorsement or other appropriate work permit.

‘(3) ADVANCE PAROLE AUTHORITY- The Attorney General shall establish a process for the approval of advance parole (under section 212(d)(5)) for applicants to travel outside the United States with prior approval in the case of--

‘(A) business or family necessity; or

‘(B) emergency or extenuating circumstances outside the control of the alien.

‘(g) ADMINISTRATIVE AND JUDICIAL REVIEW-

‘(1) IN GENERAL- There shall be no administrative or judicial review of a determination respecting an application for adjustment of status under this section except in accordance with this subsection.

‘(2) ADMINISTRATIVE REVIEW-

‘(A) SINGLE LEVEL OF ADMINISTRATIVE APPELLATE REVIEW- The Attorney General shall establish an appellate authority to provide for a single level of administrative appellate review of a determination described in paragraph (1).

‘(B) STANDARD FOR REVIEW- Such administrative appellate review shall be based solely upon the administrative record established at the time of the determination on the application and upon such additional or newly discovered evidence as may not have been available at the time of the determination.

‘(3) JUDICIAL REVIEW-

‘(A) DIRECT REVIEW- A person whose application for adjustment of status under this section is denied after administrative appellate review under paragraph (2) may seek review of such denial before the United States district court for the district in which such person resides in accordance with chapter 7 of title 5, United States Code.

‘(B) REVIEW AFTER REMOVAL PROCEEDINGS- There shall be judicial review of the denial of an application for adjustment of status under this section in the judicial review of an order of removal, deportation, or exclusion, but only if the validity of the denial has not been upheld in a prior judicial proceeding under subparagraph (A). Notwithstanding any other provision of law, the standard for review of such a denial shall be governed by subparagraph (C).

‘(C) STANDARD FOR JUDICIAL REVIEW- Judicial review of a denial of an application under this section shall be based solely upon the administrative record established at the time of the review. The findings of fact and other determinations contained in the record shall be conclusive unless the applicant can establish abuse of discretion or that the findings are directly contrary to clear and convincing facts contained in the record, considered as a whole.

‘(D) JURISDICTION OF COURTS- Notwithstanding any other provision of law, the district courts of the United States shall have jurisdiction over any cause or claim arising from a pattern or practice of the Attorney General in the operation or implementation of this section that is arbitrary, capricious, or otherwise contrary to law, and may order any appropriate relief. The district courts may order any appropriate relief in accordance with the preceding sentence without regard to exhaustion, ripeness, or other standing requirements, if the court determines that resolution of such cause or claim will serve judicial and administrative efficiency or that a remedy would otherwise not be reasonably available or practicable.

‘(h) INAPPLICABILITY OF REMOVAL ORDER REINSTATEMENT- Section 241(a)(5) shall not apply with respect to an alien who is applying for adjustment of status under this section.

‘(i) IMPLEMENTATION OF SECTION-

‘(1) IN GENERAL- Except as otherwise provided in this section, for comparable provisions of this section and section 245A, the Attorney General shall base the regulations prescribed to implement this section on the regulations (as implemented after judicial review) prescribed by the Attorney General under section 245A(g) that were most recently in effect before the date of the enactment of this section.

‘(2) IDENTITY-

‘(A) IN GENERAL- The Attorney General, after consultation with the Committees on the Judiciary of the House of Representatives and of the Senate, shall prescribe regulations with respect to how an alien may establish his or her identity for purposes of this section.

‘(B) EVIDENCE- The Attorney General shall provide that the applicant may submit evidence to establish his or her identity, including--

‘(i) attestations;

‘(ii) photographs;

‘(iii) rental records;

‘(iv) medical records; and

‘(v) employment records.

‘(3) TREATMENT OF CERTAIN ABSENCES-

‘(A) WAIVER- The Attorney General may provide for a waiver, in the discretion of the Attorney General, of an absence from the United States that otherwise would be considered to break a period of continuous residence in the case of an absence from the United States due merely to a brief temporary trip abroad required by--

‘(i) business or family necessity; or

‘(ii) emergency or extenuating circumstances outside the control of the alien.

‘(B) ABSENCES CAUSED BY REMOVAL- If a waiver is granted pursuant to subsection (e)(2)(B) for an alien who is inadmissible under section 212(a)(9)(A) due to having been ordered removed, or having departed the United States while an order of removal was outstanding, the Attorney General shall provide that any period of time during which the alien is outside the United States because of such removal or departure shall be disregarded in determining any period of continuous residence or presence in the United States for purposes of this section.

‘(j) DISSEMINATION OF INFORMATION ON LEGALIZATION PROGRAM- Beginning not later than the first day of the application period described in subsection (a)(1)(A), the Attorney General, in cooperation with qualified designated entities, shall broadly disseminate information respecting the benefits which aliens may receive under this section and the requirements to obtain such benefits.’.

(b) CLERICAL AMENDMENT- The table of contents of such Act is amended by inserting after the item relating to section 245A the following new item:

‘245B. Adjustment of status of certain long-term resident workers and college-bound students to that of alien lawfully admitted for permanent residence.’.

SEC. 3. FAMILY UNIFICATION.

Section 201(c)(2) of the Immigration and Nationality Act (8 U.S.C. 1151(c)(2)) is amended by striking ‘the sum of the number of aliens described in subparagraphs (A) and (B) of subsection (b)(2)’ and inserting ‘the number of aliens described in subsection (b)(2)(B)’.

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